Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act

CourtCouncil On Environmental Quality
Citation85 FR 43304
Record Number2020-15179
Published date16 July 2020
Federal Register, Volume 85 Issue 137 (Thursday, July 16, 2020)
[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
                [Rules and Regulations]
                [Pages 43304-43376]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-15179]
                [[Page 43303]]
                Vol. 85
                Thursday,
                No. 137
                July 16, 2020
                Part II
                Council on Environmental Quality
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                40 CFR Parts 1500, 1501, 1502, et al.
                Update to the Regulations Implementing the Procedural Provisions of the
                National Environmental Policy Act; Final Rule
                Federal Register / Vol. 85, No. 137 / Thursday, July 16, 2020 / Rules
                and Regulations
                [[Page 43304]]
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                COUNCIL ON ENVIRONMENTAL QUALITY
                40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, 1508,
                1515, 1516, 1517, and 1518
                [CEQ-2019-0003]
                RIN 0331-AA03
                Update to the Regulations Implementing the Procedural Provisions
                of the National Environmental Policy Act
                AGENCY: Council on Environmental Quality.
                ACTION: Final rule.
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                SUMMARY: The Council on Environmental Quality (CEQ) issues this final
                rule to update its regulations for Federal agencies to implement the
                National Environmental Policy Act (NEPA). CEQ has not comprehensively
                updated its regulations since their promulgation in 1978, more than
                four decades ago. This final rule comprehensively updates, modernizes,
                and clarifies the regulations to facilitate more efficient, effective,
                and timely NEPA reviews by Federal agencies in connection with
                proposals for agency action. The rule will improve interagency
                coordination in the environmental review process, promote earlier
                public involvement, increase transparency, and enhance the
                participation of States, Tribes, and localities. The amendments will
                advance the original goals of the CEQ regulations to reduce paperwork
                and delays, and promote better decisions consistent with the national
                environmental policy set forth in section 101 of NEPA.
                DATES: This is a major rule subject to congressional review. The
                effective date is September 14, 2020. However, if congressional review
                has changed the effective date, CEQ will publish a document in the
                Federal Register to establish the actual effective date or to terminate
                the rule.
                ADDRESSES: CEQ has established a docket for this action under docket
                number CEQ-2019-0003. All documents in the docket are listed on
                www.regulations.gov.
                FOR FURTHER INFORMATION CONTACT: Viktoria Z. Seale, Chief of Staff and
                General Counsel, 202-395-5750, [email protected].
                SUPPLEMENTARY INFORMATION:
                Table of Contents
                I. Background
                 A. National Environmental Policy Act
                 B. Council on Environmental Quality Regulations, Guidance, and
                Reports
                 1. Regulatory History
                 2. CEQ Guidance and Reports
                 3. Environmental Impact Statement Timelines and Page Count
                Reports
                 C. Judicial Review of Agency NEPA Compliance
                 D. Statutory Developments
                 E. Presidential Directives
                 F. Advance Notice of Proposed Rulemaking
                 G. Notice of Proposed Rulemaking
                II. Summary of Final Rule
                 A. Changes Throughout Parts 1500-1508
                 B. Revisions To Update the Purpose, Policy, and Mandate (Part
                1500)
                 1. Purpose and Policy (Sec. 1500.1)
                 2. Remove and Reserve Policy (Sec. 1500.2)
                 3. NEPA Compliance (Sec. 1500.3)
                 4. Reducing Paperwork and Delay (Sec. Sec. 1500.4 and 1500.5)
                 5. Agency Authority (Sec. 1500.6)
                 C. Revisions to NEPA and Agency Planning (Part 1501)
                 1. NEPA Thresholds (Sec. 1501.1)
                 2. Apply NEPA Early in the Process (Sec. 1501.2)
                 3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
                 4. Categorical Exclusions (Sec. 1501.4)
                 5. Environmental Assessments (Sec. 1501.5)
                 6. Findings of No Significant Impact (Sec. 1501.6)
                 7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
                 8. Scoping (Sec. 1501.9)
                 9. Time Limits (Sec. 1501.10)
                 10. Tiering (Sec. 1501.11)
                 11. Incorporation by Reference (Sec. 1501.12)
                 D. Revisions to Environmental Impact Statements (Part 1502)
                 1. Purpose of Environmental Impact Statement (Sec. 1502.1)
                 2. Implementation (Sec. 1502.2)
                 3. Statutory Requirements for Statements (Sec. 1502.3)
                 4. Major Federal Actions Requiring the Preparation of
                Environmental Impact Statements (Sec. 1502.4)
                 5. Timing (Sec. 1502.5)
                 6. Interdisciplinary Preparation (Sec. 1502.6)
                 7. Page Limits (Sec. 1502.7)
                 8. Writing (Sec. 1502.8)
                 9. Draft, Final and Supplemental Statements (Sec. 1502.9)
                 10. Recommended Format (Sec. 1502.10)
                 11. Cover (Sec. 1502.11)
                 12. Summary (Sec. 1502.12)
                 13. Purpose and Need (Sec. 1502.13)
                 14. Alternatives Including the Proposed Action (Sec. 1502.14)
                 15. Affected Environment (Sec. 1502.15)
                 16. Environmental Consequences (Sec. 1502.16)
                 17. Submitted Alternatives, Information, and Analyses (Sec.
                1502.17)
                 18. List of Preparers (Sec. 1502.18)
                 19. Appendix (Sec. 1502.19)
                 20. Publication of the Environmental Impact Statement (Sec.
                1502.20)
                 21. Incomplete or Unavailable Information (Sec. 1502.21)
                 22. Cost-Benefit Analysis (Sec. 1502.22)
                 23. Methodology and Scientific Accuracy (Sec. 1502.23)
                 24. Environmental Review and Consultation Requirements (Sec.
                1502.24)
                 E. Revisions to Commenting on Environmental Impact Statements
                (Part 1503)
                 1. Inviting Comments and Requesting Information and Analyses
                (Sec. 1503.1)
                 2. Duty To Comment (Sec. 1503.2)
                 3. Specificity of Comments and Information (Sec. 1503.3)
                 4. Response to Comments (Sec. 1503.4)
                 F. Revisions to Pre-Decisional Referrals to the Council of
                Proposed Federal Actions Determined To Be Environmentally
                Unsatisfactory (Part 1504)
                 1. Purpose (Sec. 1504.1)
                 2. Criterial for Referral (Sec. 1504.2)
                 3. Procedure for Referrals and Response (Sec. 1504.3)
                 G. Revisions to NEPA and Agency Decision Making (Part 1505)
                 1. Remove and Reserve Agency Decisionmaking Procedures (Sec.
                1505.1)
                 2. Record of Decision in Cases Requiring Environmental Impact
                Statements (Sec. 1505.2)
                 3. Implementing the Decision (Sec. 1505.3)
                 H. Revisions to Other Requirements of NEPA (Part 1506)
                 1. Limitations on Actions During NEPA Process (Sec. 1506.1)
                 2. Elimination of Duplication With State, Tribal, and Local
                Procedures (Sec. 1506.2)
                 3. Adoption (Sec. 1506.3)
                 4. Combining Documents (Sec. 1506.4)
                 5. Agency Responsibility for Environmental Documents (Sec.
                1506.5)
                 6. Public Involvement (Sec. 1506.6)
                 7. Further Guidance (Sec. 1506.7)
                 8. Proposals for Legislation (Sec. 1506.8)
                 9. Proposals for Regulations (Sec. 1506.9)
                 10. Filing Requirements (Sec. 1506.10)
                 11. Timing of Agency Action (Sec. 1506.11)
                 12. Emergencies (Sec. 1506.12)
                 13. Effective Date (Sec. 1506.13)
                 I. Revisions to Agency Compliance (Part 1507)
                 1. Compliance (Sec. 1507.1)
                 2. Agency Capability To Comply (Sec. 1507.2)
                 3. Agency NEPA Procedures (Sec. 1507.3)
                 4. Agency NEPA Program Information (Sec. 1507.4)
                 J. Revisions to Definitions (Part 1508)
                 1. Clarifying the Meaning of ``Act''
                 2. Definition of ``Affecting''
                 3. New Definition of ``Authorization''
                 4. Clarifying the Meaning of ``Categorical Exclusion''
                 5. Clarifying the Meaning of ``Cooperating Agency''
                 6. Definition of ``Council''
                 7. Definition of ``Cumulative Impact'' and Clarifying the
                Meaning of ``Effects''
                 8. Clarifying the Meaning of ``Environmental Assessment''
                 9. Clarifying the Meaning of ``Environmental Document''
                 10. Clarifying the Meaning of ``Environmental Impact Statement''
                 11. Clarifying the Meaning of ``Federal Agency''
                 12. Clarifying the Meaning of ``Finding of No Significant
                Impact''
                 13. Clarifying the Meaning of ``Human Environment''
                 14. Definition of ``Jurisdiction by Law''
                 15. Clarifying the Meaning of ``Lead Agency''
                [[Page 43305]]
                 16. Clarifying the Meaning of ``Legislation''
                 17. Clarifying the Meaning of ``Major Federal Action''
                 18. Definition of ``Matter''
                 19. Clarifying the Meaning of ``Mitigation''
                 20. Definition of ``NEPA Process''
                 21. Clarifying the Meaning of ``Notice of Intent''
                 22. New Definition of ``Page''
                 23. New Definition of ``Participating Agency''
                 24. Clarifying the Meaning of ``Proposal''
                 25. New Definition of ``Publish and Publication''
                 26. New Definition of ``Reasonable Alternatives''
                 27. New Definition of ``Reasonably Foreseeable''
                 28. Definition of ``Referring Agency''
                 29. Definition of ``Scope''
                 30. New Definition of ``Senior Agency Official''
                 31. Definition of ``Special Expertise''
                 32. Striking the Definition of ``Significantly''
                 33. Clarifying the Meaning of ``Tiering''
                 K. CEQ Guidance Documents
                III. Rulemaking Analyses and Notices
                 A. Executive Order 12866, Regulatory Planning and Review and
                Executive Order 13563, Improving Regulation and Regulatory Review
                 B. Executive Order 13771, Reducing Regulation and Controlling
                Regulatory Costs
                 C. Regulatory Flexibility Act and Executive Order 13272, Proper
                Consideration of Small Entities in Agency Rulemaking
                 D. Congressional Review Act
                 E. National Environmental Policy Act
                 F. Endangered Species Act
                 G. Executive Order 13132, Federalism
                 H. Executive Order 13175, Consultation and Coordination With
                Indian Tribal Governments
                 I. Executive Order 12898, Federal Actions To Address
                Environmental Justice in Minority Populations and Low-Income
                Populations
                 J. Executive Order 13211, Actions Concerning Regulations That
                Significantly Affect Energy Supply, Distribution, or Use
                 K. Executive Order 12988, Civil Justice Reform
                 L. Unfunded Mandates Reform Act
                 M. Paperwork Reduction Act
                I. Background
                 President Nixon signed the National Environmental Policy Act of
                1969, 42 U.S.C. 4321 et seq., (NEPA or the Act) into law on January 1,
                1970. The Council on Environmental Quality (CEQ) initially issued
                interim guidelines for implementing NEPA in 1970, revised those
                guidelines in 1971 and 1973, and subsequently promulgated its
                regulations implementing NEPA in 1978. The original goals of those
                regulations were to reduce paperwork and delays, and promote better
                decisions consistent with the national environmental policy established
                by the Act.
                 Since the promulgation of the 1978 regulations, however, the NEPA
                process has become increasingly complicated and can involve excessive
                paperwork and lengthy delays. The regulations have been challenging to
                navigate with related provisions scattered throughout, and include
                definitions and provisions that have led to confusion and generated
                extensive litigation. The complexity of the regulations has given rise
                to CEQ's issuance of more than 30 guidance documents to assist Federal
                agencies in understanding and complying with NEPA. Agencies also have
                developed procedures and practices to improve their implementation of
                NEPA. Additionally, Presidents have issued directives, and Congress has
                enacted legislation to reduce delays and expedite the implementation of
                NEPA and the CEQ regulations, including for transportation, water, and
                other types of infrastructure projects.
                 Despite these efforts, the NEPA process continues to slow or
                prevent the development of important infrastructure and other projects
                that require Federal permits or approvals, as well as rulemakings and
                other proposed actions. Agency practice has also continued to evolve
                over the past four decades, but many of the most efficient and
                effective practices have not been incorporated into the CEQ
                regulations. Further, a wide range of judicial decisions, including
                those issued by the Supreme Court, evaluating Federal agencies'
                compliance with NEPA have construed and interpreted key provisions of
                the statute and CEQ's regulations. CEQ's guidance, agency practice,
                more recent presidential directives and statutory developments, and the
                body of case law related to NEPA implementation have not been
                harmonized or codified in CEQ's regulations.
                 As discussed further below, NEPA implementation and related
                litigation can be lengthy and significantly delay major infrastructure
                and other projects.\1\ For example, CEQ has found that NEPA reviews for
                Federal Highway Administration projects, on average take more than
                seven years to proceed from a notice of intent (NOI) to prepare an
                environmental impact statement (EIS) to issuance of a record of
                decision (ROD). This is a dramatic departure from CEQ's prediction in
                1981 that Federal agencies would be able to complete most EISs, the
                most intensive review of a project's environmental impacts under NEPA,
                in 12 months or less.\2\ In its most recent review, CEQ found that,
                across the Federal Government, the average time for completion of an
                EIS and issuance of a ROD was 4.5 years and the median was 3.5
                years.\3\ CEQ determined that one quarter of EISs took less than 2.2
                years, and one quarter of the EISs took more than 6 years. And these
                timelines do not necessarily include further delays associated with
                litigation over the legal sufficiency of the NEPA process or its
                resulting documentation.
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                 \1\ See infra sec. I.B.3 and I.C.
                 \2\ Forty Most Asked Questions Concerning CEQ's National
                Environmental Policy Act Regulations, 46 FR 18026 (Mar. 23, 1981)
                (``Forty Questions''), https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act. ``The Council has advised agencies that under the new NEPA
                regulations even large complex energy projects would require only
                about 12 months for the completion of the entire EIS process. For
                most major actions, this period is well within the planning time
                that is needed in any event, apart from NEPA.'' Id. at Question 35.
                 \3\ See infra sec. I.B.3.
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                 Although other factors may contribute to project delays, the
                frequency and consistency of multi-year review processes for EISs for
                projects across the Federal Government leaves no doubt that NEPA
                implementation and related litigation is a significant factor.\4\ It is
                critical to improve NEPA implementation, not just for major projects,
                but because tens of thousands of projects and activities are subject to
                NEPA every year, many of which are important to modernizing our
                Nation's infrastructure.\5\
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                 \4\ See also, Philip K. Howard, Common Good, Two Years, Not Ten:
                Redesigning Infrastructure Approvals (Sept. 2015) (``Two Years, Not
                Ten''), https://www.commongood.org/wp-content/uploads/2017/07/2YearsNot10Years.pdf.
                 \5\ As discussed in sections II.D and II.C.5, CEQ estimates that
                Federal agencies complete 176 EISs and 10,000 environmental
                assessments each year. In addition, CEQ estimates that agencies
                apply categorical exclusions to 100,000 actions annually. See infra
                sec. II.C.4.
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                 As noted above, an extensive body of case law interpreting NEPA and
                CEQ's implementing regulations drives much of agencies' modern day
                practice. Though courts have correctly recognized that NEPA requires
                agencies to follow certain procedures and not to reach particular
                substantive results, the accretion of cases has not necessarily
                clarified implementation of the law. In light of the litigation risk
                such a situation presents, agencies have responded by generating
                voluminous studies analyzing impacts and alternatives well beyond the
                point where useful information is being produced and utilized by
                decision makers. In its most recent review, CEQ found that final EISs
                averaged 661 pages in length, and the median document was 447 pages.\6\
                One quarter were 748 pages or longer. The page count and document
                length data do not include
                [[Page 43306]]
                appendices. The average modern EIS is more than 4 times as long as the
                150 pages contemplated by the 1978 regulations.
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                 \6\ See infra sec. I.B.3.
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                 By adopting these regulations following so many decades of NEPA
                practice, implementation, and litigation, CEQ is acting now to enhance
                the efficiency of the process based on its decades of experience
                overseeing Federal agency practice, and clarifying a number of key NEPA
                terms and requirements that have frequently been subject to litigation.
                The modifications and refinements reflected in the final rule will
                contribute to greater certainty and predictability in NEPA
                implementation, and thus eliminate at least in some measure the
                unnecessary and burdensome delays that have hampered national
                infrastructure and other important projects.
                 In June 2018, CEQ issued an advance notice of proposed rulemaking
                (ANPRM) requesting comment on potential updates and clarifications to
                the CEQ regulations.\7\ On January 10, 2020, CEQ published a notice of
                proposed rulemaking \8\ (NPRM or proposed rule) in the Federal Register
                proposing to update its regulations for implementing the procedural
                provisions of NEPA.
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                 \7\ 83 FR 28591 (June 20, 2018).
                 \8\ 85 FR 1684 (Jan. 10, 2020).
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                 Following the publication of the NPRM, CEQ received approximately
                1,145,571 comments on the proposed rule.\9\ A majority of the comments
                (approximately 1,136,755) were the result of mass mail campaigns, which
                are comments with multiple signatories or groups of comments that are
                identical or very similar in form and content. CEQ received
                approximately 8,587 unique public comments of which 2,359 were
                substantive comments raising a variety of issues related to the
                rulemaking and contents of the proposed rule, including procedural,
                legal, and technical issues. Finally, 229 comments were duplicate or
                non-germane submissions, or contained only supporting materials.
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                 \9\ In the NPRM, CEQ listed several methods for members of the
                public to submit written comments, including submittal to the docket
                on regulations.gov, by fax, or by mail. In addition, CEQ also
                included an email address ([email protected]) in the NPRM for
                further information. While the NPRM did not list this email address
                among the several methods for the public to provide comments, CEQ
                has considered comments received through this email address during
                the public comment period and included them in the docket on
                regulations.gov.
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                 The background section below summarizes NEPA, the CEQ regulations,
                and developments since CEQ issued those regulations. Specifically,
                section I.A provides a brief summary of the NEPA statute. Section I.B
                describes the history of CEQ's regulations implementing NEPA and
                provides an overview of CEQ's numerous guidance documents and reports
                issued subsequent to the regulations. Section I.C discusses the role of
                the courts in interpreting NEPA. Section I.D provides a brief overview
                of Congress's efforts, and section I.E describes the initiatives of
                multiple administrations to reduce delays and improve implementation of
                NEPA. Finally, sections I.F and I.G provides the background on this
                rulemaking, including the ANPRM and the NPRM.
                 In section II, CEQ provides a summary of the final rule, including
                changes CEQ made from the proposed rule, which comprehensively updates
                and substantially revises CEQ's prior regulations. This final rule
                modernizes and clarifies the CEQ regulations to facilitate more
                efficient, effective, and timely NEPA reviews by Federal agencies by
                simplifying regulatory requirements, codifying certain guidance and
                case law relevant to these regulations, revising the regulations to
                reflect current technologies and agency practices, eliminating obsolete
                provisions, and improving the format and readability of the
                regulations. CEQ's revisions include provisions intended to promote
                timely submission of relevant information to ensure consideration of
                such information by agencies. CEQ's revisions will provide greater
                clarity for Federal agencies, States, Tribes, localities, and the
                public, and advance the original goals of the CEQ regulations to reduce
                paperwork and delays and promote better decisions consistent with the
                national environmental policy set forth in section 101 of NEPA.
                 CEQ provides a summary of the comments received on the proposed
                rule and responses in the document titled ``Update to the Regulations
                Implementing the Procedural Provisions of the National Environmental
                Policy Act Final Rule Response to Comments'' \10\ (``Final Rule
                Response to Comments''). This document organizes the comments by the
                parts and sections of the proposed rule that the comment addresses, and
                includes a subsection on other general or crosscutting topics.
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                 \10\ The Update to the Regulations Implementing the Procedural
                Provisions of the National Environmental Policy Act Final Rule
                Response to Comments document is available under ``Supporting
                Documents'' in the docket on regulations.gov under docket ID CEQ-
                2019-0003.
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                 Ultimately, the purpose of the NEPA process is to ensure informed
                decision making by Federal agencies with regard to the potential
                environmental effects of proposed major Federal actions and to make the
                public aware of the agency's decision-making process. When effective
                and well managed, the NEPA process results in more informative
                documentation, enhanced coordination, resolution of conflicts, and
                improved environmental outcomes. With this final rule, CEQ codifies
                effective agency practice and provides clarity on the requirements of
                the NEPA process.
                A. National Environmental Policy Act
                 Congress enacted NEPA to establish a national policy for the
                environment, provide for the establishment of CEQ, and for other
                purposes. Section 101 of NEPA sets forth a 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, to create and maintain conditions under which man and nature
                can exist in productive harmony, and [to] fulfill the social, economic,
                and other requirements of present and future generations of
                Americans.'' 42 U.S.C. 4331(a). Section 102 of NEPA establishes
                procedural requirements, applying that national policy to proposals for
                major Federal actions significantly affecting the quality of the human
                environment by requiring Federal agencies to prepare a detailed
                statement on: (1) The environmental impact of the proposed action; (2)
                any adverse environmental effects that cannot be avoided; (3)
                alternatives to the proposed action; (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 resources that would be involved in the
                proposed action. 42 U.S.C. 4332(2)(C). NEPA also established CEQ as an
                agency within the Executive Office of the President to administer
                Federal agency implementation of NEPA. 42 U.S.C. 4332(2)(B), (C), (I),
                4342, 4344; see also Dep't of Transp. v. Pub. Citizen, 541 U.S. 752,
                757 (2004); Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301,
                1309-10 (Douglas, J. Circuit Justice 1974).
                 NEPA does not mandate particular results or substantive outcomes.
                Rather, NEPA requires Federal agencies to consider environmental
                impacts of proposed actions as part of agencies' decision-making
                processes. Additionally, NEPA does not include a private right of
                action and specifies no remedies. Challenges to agency action alleging
                noncompliance with NEPA procedures are brought under the Administrative
                Procedure Act (APA). 5
                [[Page 43307]]
                U.S.C. 551 et seq. Accordingly, NEPA cases proceed as APA cases.
                Limitations on APA cases and remedies thus apply to the adjudication of
                NEPA disputes.
                B. Council on Environmental Quality Regulations, Guidance, and Reports
                1. Regulatory History
                 In 1970, President Nixon issued Executive Order (E.O.) 11514,
                titled ``Protection and Enhancement of Environmental Quality,'' which
                directed CEQ to ``[i]ssue guidelines to Federal agencies for the
                preparation of detailed statements on proposals for legislation and
                other Federal actions affecting the environment, as required by section
                102(2)(C) of the Act.'' \11\ CEQ issued interim guidelines in April of
                1970 and revised them in 1971 and 1973.\12\
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                 \11\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
                 \12\ See 35 FR 7390 (May 12, 1970) (interim guidelines); 36 FR
                7724 (Apr. 23, 1971) (final guidelines); 38 FR 10856 (May 2, 1973)
                (proposed revisions to guidelines); 38 FR 20550 (Aug. 1, 1973)
                (revised guidelines).
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                 In 1977, President Carter issued E.O. 11991, titled ``Relating to
                Protection and Enhancement of Environmental Quality.'' \13\ E.O. 11991
                amended section 3(h) of E.O. 11514, directing CEQ to ``[i]ssue
                regulations to Federal agencies for the implementation of the
                procedural provisions of [NEPA] . . . to make the environmental impact
                statement process more useful to decision[ ]makers and the public; and
                to reduce paperwork and the accumulation of extraneous background data,
                in order to emphasize the need to focus on real environmental issues
                and alternatives,'' and to ``require [environmental] impact statements
                to be concise, clear, and to the point, and supported by evidence that
                agencies have made the necessary environmental analyses.'' E.O. 11991
                also amended section 2 of E.O. 11514, requiring agency compliance with
                the regulations issued by CEQ. The Executive order was based on the
                President's constitutional and statutory authority, including NEPA, the
                Environmental Quality Improvement Act, 42 U.S.C. 4371 et seq., and
                section 309 of the Clean Air Act, 42 U.S.C. 7609. The President has a
                constitutional duty to ensure that the ``Laws be faithfully executed,''
                U.S. Const. art. II, sec. 3, which may be delegated to appropriate
                officials. 3 U.S.C. 301. In signing E.O. 11991, the President delegated
                this authority to CEQ.\14\
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                 \13\ 42 FR 26967 (May 25, 1977).
                 \14\ The Presidential directive was consistent with the
                recommendation of the Commission on Federal Paperwork that the
                President require the development of consistent regulations and
                definitions and ensure coordination among agencies in the
                implementation of Environmental Impact Statement preparation. See
                The Report of the Commission on Federal Paperwork, Environmental
                Impact Statements 16 (Feb. 25, 1977).
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                 In 1978, CEQ promulgated its ``National Environmental Policy Act,
                Regulations, Implementation of Procedural Provisions,'' 40 CFR parts
                1500-1508 (``CEQ regulations'' or ``NEPA regulations''), ``[t]o reduce
                paperwork, to reduce delays, and at the same time to produce better
                decisions [that] further the national policy to protect and enhance the
                quality of the human environment.'' \15\ The Supreme Court has
                explained that E.O. 11991 requires all ``heads of [F]ederal agencies to
                comply'' with the ``single set of uniform, mandatory regulations'' that
                CEQ issued to implement NEPA's provisions. Andrus v. Sierra Club, 442
                U.S. 347, 357 (1979).
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                 \15\ 43 FR 55978 (Nov. 29, 1978); see also 44 FR 873 (Jan. 3,
                1979) (technical corrections), and 43 FR 25230 (June 9, 1978)
                (proposed rule).
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                 The Supreme Court has afforded the CEQ regulations ``substantial
                deference.'' Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
                355 (1989) (citing Andrus, 442 U.S. at 358); Pub. Citizen, 541 U.S. at
                757 (``The [CEQ], established by NEPA with authority to issue
                regulations interpreting it, has promulgated regulations to guide
                [F]ederal agencies in determining what actions are subject to that
                statutory requirement.'' (citing 40 CFR 1500.3)). The new regulations
                are intended to embody CEQ's interpretation of NEPA for Chevron
                purposes and to operate as legislative rules.\16\ See Chevron U.S.A.,
                Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see
                also Nat'l Cable & Telecomm. Ass'n v. Brand X internet Servs., 545 U.S.
                967, 980-86 (2005) (applying Chevron deference to Federal
                Communications Commission regulations); United States v. Mead Corp.,
                533 U.S. 218, 227-30 (2001) (properly promulgated agency regulations
                addressing ambiguities or gaps in a statute qualify for Chevron
                deference when agencies possess the authority to issue regulations
                interpreting the statute). The Supreme Court has held that NEPA is a
                procedural statute that serves the twin aims of ensuring that agencies
                consider the significant environmental consequences of their proposed
                actions and inform the public about their decision making. Balt. Gas &
                Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
                (citing Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
                435 U.S. 519, 553 (1978); Weinberger v. Catholic Action of Haw./Peace
                Educ. Project, 454 U.S. 139, 143 (1981)).
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                 \16\ Even without expressly invoking Chevron here and noting
                that CEQ intends these regulations to operate as legislative rules,
                Chevron would still apply. See Guedes v. ATF, 920 F.3d 1, 23 (D.C.
                Cir. 2019) (``And for this Rule in particular, another telltale sign
                of the agency's belief that it was promulgating a rule entitled to
                Chevron deference is the Rule's invocation of Chevron by name. To be
                sure, an agency of course need not expressly invoke the Chevron
                framework to obtain Chevron deference: `Chevron is a standard of
                judicial review, not of agency action.' SoundExchange[, Inc. v.
                Copyright Royalty Bd.,] 904 F.3d [41,] 54 [(D.C. Cir. 2018)]. Still,
                the Bureau's invocation of Chevron here is powerful evidence of its
                intent to engage in an exercise of interpretive authority warranting
                Chevron treatment.'') (emphasis in original).
                ---------------------------------------------------------------------------
                 Furthermore, in describing the role of NEPA in agencies' decision-
                making processes, the Supreme Court has stated, ``Congress in enacting
                NEPA, however, did not require agencies to elevate environmental
                concerns over other appropriate considerations.'' \17\ Balt. Gas &
                Elec. Co., 462 U.S. at 97 (citing Strycker's Bay Neighborhood Council
                v. Karlen, 444 U.S. 223, 227 (1980) (per curiam)). Instead, NEPA
                requires agencies to analyze the environmental consequences before
                taking a major Federal action. Id. (citing Kleppe v. Sierra Club, 427
                U.S. 390, 410 n.21 (1976)). The Supreme Court has recognized that
                agencies have limited time and resources and that ``[t]he scope of the
                agency's inquiries must remain manageable if NEPA's goal of `[insuring]
                a fully informed and well-considered decision,' . . . is to be
                accomplished.'' Metro. Edison Co. v. People Against Nuclear Energy, 460
                U.S. 766, 776 (1983) (quoting Vt. Yankee, 435 U.S. at 558).
                ---------------------------------------------------------------------------
                 \17\ Section 101 of NEPA provides that it is the Federal
                Government's policy ``to use all practicable means and measures . .
                . to create and maintain conditions under which man and nature can
                exist in productive harmony, and [to] fulfill the social, economic,
                and other requirements of present and future generations of
                Americans.'' 42 U.S.C. 4331(a) (emphasis added).
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                 CEQ has substantively amended its NEPA regulations only once, at 40
                CFR 1502.22, to replace the ``worst case'' analysis requirement with a
                provision for the consideration of incomplete or unavailable
                information regarding reasonably foreseeable significant adverse
                effects.\18\ CEQ found that the amended 40 CFR 1502.22 would ``generate
                information and discussion on those consequences of greatest concern to
                the public and of greatest relevance to the agency's decision,'' \19\
                rather than distorting the decision-making process by overemphasizing
                highly speculative harms.\20\ The Supreme Court found this reasoning to
                [[Page 43308]]
                be a well-considered basis for the change, and that the new regulation
                was entitled to substantial deference. Methow Valley, 490 U.S. at 356.
                ---------------------------------------------------------------------------
                 \18\ 51 FR 15618 (Apr. 25, 1986).
                 \19\ 50 FR 32234, 32237 (Aug. 9, 1985).
                 \20\ 51 FR 15618, 15620 (Apr. 25, 1986).
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                 The NEPA regulations direct Federal agencies to adopt their own
                implementing procedures, as necessary, in consultation with CEQ. 40 CFR
                1507.3. Under this regulation, over 85 Federal agencies and their
                subunits have developed such procedures.\21\
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                 \21\ A list of agency NEPA procedures is available at https://ceq.doe.gov/laws-regulations/agency_implementing_procedures.html.
                ---------------------------------------------------------------------------
                2. CEQ Guidance and Reports
                 Over the past four decades, numerous questions have been raised
                regarding appropriate implementation of NEPA and the CEQ regulations.
                Soon after the issuance of the CEQ regulations and in response to CEQ's
                review of NEPA implementation and input from Federal, State, and local
                officials, including NEPA practitioners, CEQ issued the ``Forty Most
                Asked Questions Concerning CEQ's National Environmental Policy Act
                Regulations'' \22\ in 1981 (``Forty Questions''). This guidance covered
                a wide range of topics including alternatives, coordination among
                applicants, lead and cooperating agencies, and integration of NEPA
                documents with analysis for other environmental statutes. In addition,
                CEQ has periodically examined the effectiveness of the NEPA process and
                issued a number of reports on NEPA implementation. In some instances,
                these reports led to additional guidance. These documents have been
                intended to provide guidance and clarifications with respect to various
                aspects of the implementation of NEPA and the definitions in the CEQ
                regulations, and to increase the efficiency and effectiveness of the
                environmental review process.\23\
                ---------------------------------------------------------------------------
                 \22\ Forty Questions, supra note 2.
                 \23\ See https://www.energy.gov/nepa/ceq-guidance-documents.
                ---------------------------------------------------------------------------
                 In January 1997, CEQ issued ``The National Environmental Policy
                Act: A Study of Its Effectiveness After Twenty-five Years.'' \24\ In
                that report, CEQ acknowledged that NEPA has ensured that agencies
                adequately analyze the potential environmental consequences of their
                actions and bring the public into the decision-making processes of
                Federal agencies. However, CEQ also identified matters of concern to
                participants in the study, including concerns with overly lengthy
                documents that may not enhance or improve decision making,\25\ and
                concerns that agencies may seek to `` `litigation-proof' documents,
                increasing costs and time but not necessarily quality.'' \26\ The
                report further stated that ``[o]ther matters of concern to participants
                in the Study were the length of NEPA processes, the extensive detail of
                NEPA analyses, and the sometimes confusing overlay of other laws and
                regulations.'' \27\ The participants in the study identified five
                elements of the NEPA process' collaborative framework (strategic
                planning, public information and input, interagency coordination,
                interdisciplinary place-based decision making, and science-based
                flexible management) as critical to effective and efficient NEPA
                implementation.
                ---------------------------------------------------------------------------
                 \24\ https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf.
                 \25\ Id. at iii.
                 \26\ Id.
                 \27\ Id. In the 50 years since the passage of NEPA, Congress has
                amended or enacted a number of other environmental laws that may
                also apply to proposed Federal agency actions, such as the
                Endangered Species Act, the Clean Water Act, the Clean Air Act, and
                other substantive statutes. See discussion infra sec. I.D.
                Consistent with 40 CFR 1502.25, longstanding agency practice has
                been to use the NEPA process as the umbrella procedural statute,
                integrating compliance with these laws into the NEPA review and
                discussing them in the NEPA document. However, this practice
                sometimes leads to confusion as to whether an agency does an
                analysis to comply with NEPA or another, potentially substantive,
                environmental law.
                ---------------------------------------------------------------------------
                 In 2002, the Chairman of CEQ established a NEPA task force,
                composed of Federal agency officials, to examine NEPA implementation by
                focusing on (1) technology and information management and security; (2)
                Federal and intergovernmental collaboration; (3) programmatic analyses
                and tiering; (4) adaptive management and monitoring; (5) categorical
                exclusions (CEs); and (6) environmental assessments (EAs). In 2003, the
                task force issued a report \28\ recommending actions to improve and
                modernize the NEPA process, leading to additional guidance documents
                and handbooks.
                ---------------------------------------------------------------------------
                 \28\ See The NEPA Task Force Report to the Council on
                Environmental Quality, Modernizing NEPA Implementation (Sept. 2003)
                (``NEPA Task Force Report''), https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf.
                ---------------------------------------------------------------------------
                 Over the past 4 decades, CEQ has issued over 30 documents on a wide
                variety of topics to provide guidance and clarifications to assist
                Federal agencies in more efficiently and effectively implementing the
                NEPA regulations.\29\ While CEQ has sought to provide clarity and
                direction related to implementation of the regulations and the Act
                through the issuance of guidance, agencies continue to face
                implementation challenges. Further, the documentation and timelines for
                completing environmental reviews can be very lengthy, and the process
                can be complex and costly.
                ---------------------------------------------------------------------------
                 \29\ See, e.g., Emergencies and the National Environmental
                Policy Act (Oct. 2016) (``Emergencies Guidance''), https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf; Effective
                Use of Programmatic NEPA Reviews (Dec. 18, 2014) (``Programmatic
                Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf; NEPA and NHPA: A Handbook for Integrating NEPA and Section 106
                (Mar. 2013), https://ceq.doe.gov/publications/nepa-handbooks.html;
                Memorandum on Environmental Conflict Resolution (Nov. 28, 2005), as
                expanded by Memorandum on Environmental Collaboration and Conflict
                Resolution (Sept. 7, 2012), https://ceq.doe.gov/nepa-practice/environmental-collaboration-and-conflict-resolution.html; Final
                Guidance on Improving the Process for Preparing Efficient and Timely
                Environmental Reviews Under the National Environmental Policy Act,
                77 FR 14473 (Mar. 12, 2012) (``Timely Environmental Reviews
                Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf; Final Guidance for
                Federal Departments and Agencies on the Appropriate Use of
                Mitigation and Monitoring and Clarifying the Appropriate Use of
                Mitigated Findings of No Significant Impact, 76 FR 3843 (Jan. 21,
                2011) (``Mitigation Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf; Council on
                Environmental Quality, Final Guidance for Federal Departments and
                Agencies on Establishing, Applying, and Revising Categorical
                Exclusions under the National Environmental Policy Act, 75 FR 75628
                (Dec. 6, 2010) (``CE Guidance''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf; Letter from
                the Hon. James L. Connaughton, Chairman, Council on Environmental
                Quality, to the Hon. Norman Y. Mineta, Secretary, Department of
                Transportation (May 12, 2003) (``Connaughton Letter''), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/CEQ-DOT_PurposeNeed_May-2013.pdf; Considering Cumulative Effects Under
                the National Environmental Policy Act (Jan. 1997) (``Cumulative
                Effects Guidance''), https://ceq.doe.gov/publications/cumulative_effects.html; Environmental Justice: Guidance under the
                National Environmental Policy Act (Dec. 10, 1997) (``EJ Guidance''),
                https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/ej/justice.pdf; Forty Questions, supra note 2. CEQ also issued a
                resource for the public, A Citizen's Guide to the NEPA: Having Your
                Voice Heard (Dec. 2007), https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.
                ---------------------------------------------------------------------------
                 In 2018, CEQ and the Office of Management and Budget (OMB) issued a
                memorandum titled ``One Federal Decision Framework for the
                Environmental Review and Authorization Process for Major Infrastructure
                Projects under E.O. 13807'' (``OFD Framework Guidance'').\30\ CEQ and
                OMB issued this guidance pursuant to E.O. 13807, titled ``Establishing
                Discipline and Accountability in the Environmental Review and
                Permitting Process for Infrastructure Projects,'' \31\ to improve
                agency coordination for infrastructure
                [[Page 43309]]
                projects requiring an EIS and permits or other authorizations from
                multiple agencies and to improve the timeliness of the environmental
                review process. See E.O. 13807, infra sec. I.E. Consistent with the OFD
                Framework Guidance, supra note 30, Federal agencies signed a memorandum
                of understanding committing to implement the One Federal Decision (OFD)
                policy for major infrastructure projects, including by committing to
                establishing a joint schedule for such projects, preparation of a
                single EIS and joint ROD, elevation of delays and dispute resolution,
                and setting a goal of completing environmental reviews for such
                projects within two years.\32\ Subsequently, CEQ and OMB issued
                guidance for the Secretary of Transportation regarding the
                applicability of the OFD policy to States under the Surface
                Transportation Project Delivery Program,\33\ and for the Secretary of
                Housing and Urban Development (HUD) regarding the applicability of the
                OFD policy to entities assuming HUD environmental review
                responsibilities.\34\ CEQ also has provided direction to the Federal
                Energy Regulatory Commission (FERC) relating to the requirement for
                joint RODs under the OFD policy.\35\
                ---------------------------------------------------------------------------
                 \30\ M-18-13 (Mar. 20, 2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf.
                 \31\ 82 FR 40463 (Aug. 24, 2017).
                 \32\ See Memorandum of Understanding Implementing One Federal
                Decision under Executive Order 13807 (2018), https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf.
                 \33\ Guidance on the Applicability of E.O. 13807 to States with
                NEPA Assignment Authority Under the Surface Transportation Project
                Delivery Program, M-19-11 (Feb. 26, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190226OMB-CEQ327.pdf.
                 \34\ Guidance on the Applicability of E.O. 13807 to Responsible
                Entities Assuming Department of Housing and Urban Development
                Environmental Review Responsibilities, M-19-20 (June 28, 2019),
                https://www.whitehouse.gov/wp-content/uploads/2019/06/M-19-20.pdf.
                 \35\ See Letter from the Hon. Mary B. Neumayr, Chairman, Council
                on Environmental Quality, to the Hon. Neil Chatterjee, Chairman,
                Federal Energy Regulatory Comm'n (Aug. 22, 2019), https://www.whitehouse.gov/wp-content/uploads/2017/11/20190822FERCOFDLetter.pdf.
                ---------------------------------------------------------------------------
                3. Environmental Impact Statement Timelines and Page Count Reports
                 CEQ also has conducted reviews and prepared reports on the length
                of time it takes for agencies to prepare EISs and the length of these
                documents. These reviews found that the process for preparing EISs is
                taking much longer than CEQ advised, and that the documents are far
                longer than the CEQ regulations and guidance recommended. In December
                2018, CEQ issued a report compiling information relating to the
                timelines for preparing EISs during the period of 2010-2017, and the
                NPRM included a summary of the report. CEQ has since updated this
                analysis to include EISs completed in 2018, and this section reflects
                the updated data.\36\
                ---------------------------------------------------------------------------
                 \36\ See Council on Environmental Quality, Environmental Impact
                Statement Timelines (2010-2018), (June 12, 2020), https://ceq.doe.gov/nepa-practice/eis-timelines.html.
                ---------------------------------------------------------------------------
                 While CEQ's Forty Questions states that the time for an EIS, even
                for a complex project, should not exceed 1 year,\37\ CEQ found that,
                across the Federal Government, the average time for completion of an
                EIS and issuance of a ROD was 4.5 years and the median was 3.5 years.
                One quarter of the EISs took less than 2.2 years, and one quarter of
                the EISs took more than 6 years.
                ---------------------------------------------------------------------------
                 \37\ Forty Questions, supra note 2, at Question 35.
                ---------------------------------------------------------------------------
                 As reflected in the timelines report, the period from publication
                of a NOI to prepare an EIS to the notice of availability of the draft
                EIS took, on average, 58.4 percent of the total time, while preparing
                the final EIS, including addressing comments received on the draft EIS,
                took, on average, 32.2 percent of the total time. The period from the
                final EIS to publication of the ROD took, on average, 9.4 percent of
                the total time. This report recognized that EIS timelines vary widely
                and many factors may influence the timing of the document, including
                variations in the scope and complexity of the actions, variations in
                the extent of work done prior to issuance of the NOI, and suspension of
                EIS activities due to external factors.
                 Additionally, in July 2019, CEQ issued a report on the length, by
                page count, of EISs (excluding appendices) finalized during the period
                of 2013-2017, and the NPRM included a summary of the report. CEQ has
                since updated this analysis to include EISs completed in 2018, and this
                section reflects the updated data.
                 While the CEQ regulations include recommended page limits for the
                text of final EISs of normally less than 150 pages, or normally less
                than 300 pages for proposals of ``unusual scope or complexity,'' 40 CFR
                1502.7, CEQ found that many EISs are significantly longer. In
                particular, CEQ found that across all Federal agencies, draft EISs
                averaged 575 pages in total, with a median document length of 397
                pages.\38\ One quarter of the draft EISs were 279 pages or shorter, and
                one quarter were 621 pages or longer. For final EISs, the average
                document length was 661 pages, and the median document length was 447
                pages. One quarter of the final EISs were 286 pages or shorter, and one
                quarter were 748 pages or longer. On average, the change in document
                length from draft EIS to final EIS was an additional 86 pages or a 15
                percent increase.
                ---------------------------------------------------------------------------
                 \38\ See Council on Environmental Quality, Length of
                Environmental Impact Statements (2013-2018), (June 12, 2020) (``CEQ
                Length of EISs Report''), https://ceq.doe.gov/nepa-practice/eis-length.html.
                ---------------------------------------------------------------------------
                 With respect to final EISs, CEQ found that approximately 7 percent
                were 150 pages or shorter, and 27 percent were 300 pages or
                shorter.\39\ Similar to the conclusions of its EIS timelines study, CEQ
                noted that a number of factors may influence the length of EISs,
                including variation in the scope and complexity of the decisions that
                the EIS is designed to inform, the degree to which NEPA documentation
                is used to document compliance with other statutes, and considerations
                relating to potential legal challenges. Moreover, variation in EIS
                length may reflect differences in management, oversight, and
                contracting practices among agencies that could result in longer
                documents.
                ---------------------------------------------------------------------------
                 \39\ The page counts compiled for 2010-2017 include the text of
                the EIS as well as supporting content to which the page limit in 40
                CFR 1502.7 does not apply. For 2018, CEQ analyzed the data to
                determine the length of the text of the EISs and found that 19
                percent of the final EISs were 150 pages or shorter and 51 percent
                were 300 pages or shorter.
                ---------------------------------------------------------------------------
                 While there can be many factors affecting the timelines and length
                of EISs, CEQ has concluded that revisions to the CEQ regulations to
                advance more timely reviews and reduce unnecessary paperwork are
                warranted. CEQ has determined that improvements to agency processes,
                such as earlier solicitation of information from States, Tribes, and
                local governments and the public, and improved coordination in the
                development of EISs, can achieve more useful and timely documents to
                support agency decision making.
                C. Judicial Review of Agency NEPA Compliance
                 NEPA is the most litigated environmental statute in the United
                States.\40\ Over the past 50 years, Federal courts have issued an
                extensive body of case law addressing appropriate implementation and
                interpretation of NEPA and the CEQ regulations.\41\ The Supreme Court
                has directly addressed NEPA in 17 decisions, and the U.S. district and
                appellate courts issue approximately 100 to 140 decisions
                [[Page 43310]]
                each year interpreting NEPA. The Supreme Court has construed NEPA and
                the CEQ regulations in light of a ``rule of reason,'' which ensures
                that agencies determine whether and to what extent to prepare an EIS
                based on the usefulness of information to the decision-making process.
                See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373-74 (1989).
                ``Although [NEPA] procedures are almost certain to affect the agency's
                substantive decision, it is now well settled that NEPA itself does not
                mandate particular results, but simply prescribes the necessary
                process.'' Methow Valley, 490 U.S. at 350 (citing Strycker's Bay
                Neighborhood Council, Inc., 444 U.S. at 227-28; Vt. Yankee, 435 U.S. at
                558; see also Pub. Citizen, 541 U.S. at 756-57 (``NEPA imposes only
                procedural requirements on [F]ederal agencies with a particular focus
                on requiring agencies to undertake analyses of the environmental impact
                of their proposals and actions.'' (citing Methow Valley, 490 U.S. at
                349-50)). The thousands of decisions interpreting NEPA and the current
                CEQ regulations being amended here drive much of agencies' modern-day
                practice. A challenge for agencies is that courts have interpreted key
                terms and requirements differently, adding to the complexity of
                environmental reviews. For example, in 2018 and 2019, the U.S. Courts
                of Appeals issued 56 substantive decisions on a range of topics,
                including assessment of impacts, sufficiency of alternatives, whether
                an agency's action qualified as Federal action, and purpose and need
                statements.\42\ As discussed below, the final rule codifies
                longstanding case law in some instances, and, in other instances,
                clarifies the meaning of the regulations where there is a lack of
                uniformity in judicial interpretation of NEPA and the CEQ regulations.
                ---------------------------------------------------------------------------
                 \40\ James E. Salzman and Barton H. Thompson, Jr., Environmental
                Law and Policy 340 (5th ed. 2019) (``Perhaps surprisingly, there
                have been thousands of NEPA suits. It might seem strange that NEPA's
                seemingly innocuous requirement of preparing an EIS has led to more
                lawsuits than any other environmental statute.'').
                 \41\ The 2019 edition of NEPA Law and Litigation includes a 115-
                page Table of Cases decisions construing NEPA. See Daniel R.
                Mandelker et al., NEPA Law and Litigation, Table of Cases (2d ed.
                2019).
                 \42\ National Association of Environmental Professionals, 2019
                Annual NEPA Report of the National Environmental Policy Act (NEPA)
                Practice (2020) at 30-31, https://naep.memberclicks.net/assets/annual-report/2019_NEPA_Annual_Report/NEPA_Annual_Report_2019.pdf;
                National Association of Environmental Professionals, 2018 Annual
                NEPA Report of the National Environmental Policy Act (NEPA) Practice
                (2019) at 41-51, https://naep.memberclicks.net/assets/documents/2019/NEPA_Annual_Report_2018.pdf.
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                D. Statutory Developments
                 Since the enactment of NEPA in 1970, Congress has amended or
                enacted a large number of substantive environmental statutes. These
                have included significant amendments to the Clean Water Act and Clean
                Air Act, establishment of new Federal land management standards and
                planning processes for National forests, public lands, and coastal
                zones, and statutory requirements to conserve fish, wildlife, and plant
                species.\43\ Additionally, the consideration of the effects on historic
                properties under the National Historic Preservation Act is typically
                integrated into the NEPA review.\44\ NEPA has served as the umbrella
                procedural statute, integrating these laws into NEPA reviews and
                discussing them in NEPA documents.
                ---------------------------------------------------------------------------
                 \43\ See, e.g., the Clean Air Act, 42 U.S.C. 7401-7671q; Clean
                Water Act, 33 U.S.C. 1251-1388; Coastal Zone Management Act, 16
                U.S.C. 1451-1466; Federal Land Policy and Management Act, 43 U.S.C.
                1701-1787; Forest and Rangeland Renewable Resources Planning Act of
                1974, 16 U.S.C. 1600-1614; Magnuson-Stevens Fishery Conservation and
                Management Act, 16 U.S.C. 1801-1884; Endangered Species Act, 16
                U.S.C. 1531-1544; Oil Pollution Act of 1990, 33 U.S.C. 2701-2762;
                Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201,
                1202, and 1211; and Comprehensive Environmental Response,
                Compensation, and Liability Act, 42 U.S.C. 9601-9675.
                 \44\ Similar to NEPA, section 106 (54 U.S.C. 306108) of the
                National Historic Preservation Act is a procedural statute.
                ---------------------------------------------------------------------------
                 Over the past two decades and multiple administrations, Congress
                has also undertaken efforts to facilitate more efficient environmental
                reviews by Federal agencies, and has enacted a number of statutes aimed
                at improving the implementation of NEPA, including in the context of
                infrastructure projects. In particular, Congress has enacted
                legislation to improve coordination among agencies, integrate NEPA with
                other environmental reviews, and bring more transparency to the NEPA
                process.
                 In 2005, Congress enacted 23 U.S.C. 139, ``Efficient environmental
                reviews for project decisionmaking,'' a streamlined environmental
                review process for highway, transit, and multimodal transportation
                projects (the ``section 139 process''), in the Safe, Accountable,
                Flexible, Efficient Transportation Equity Act: A Legacy for Users
                (SAFETEA-LU), Public Law 109-59, sec. 6002(a), 119 Stat. 1144, 1857.
                Congress amended section 139 with additional provisions designed to
                improve the NEPA process in the 2012 Moving Ahead for Progress in the
                21st Century Act (MAP-21), Public Law 112-141, sec. 1305-1309, 126
                Stat. 405, and the 2015 Fixing America's Surface Transportation (FAST)
                Act, Public Law 114-94, sec. 1304, 129 Stat. 1312, 1378. Section 139
                provides for an environmental review process that is based on and
                codifies many aspects of the NEPA regulations, including provisions
                relating to lead and cooperating agencies, concurrent environmental
                reviews in a single NEPA document, coordination on the development of
                the purpose and need statement and reasonable alternatives, and
                adoption of environmental documents. Further, section 139 provides for
                referral to CEQ for issue resolution, similar to part 1504 of the NEPA
                regulations, and allows for the use of errata sheets, consistent with
                40 CFR 1503.4(c).\45\
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                 \45\ To facilitate the NEPA process for transportation projects
                subject to section 139, the statute specifically calls for
                development of a coordination plan, including development of a
                schedule, and publicly tracking the implementation of that schedule
                through use of the Permitting Dashboard. See infra sec. I.E. In
                addition, the section 139 process provides for ``participating''
                agencies, which are any agencies invited to participate in the
                environmental review process. Section 139 also requires, to the
                maximum extent practicable, issuance of a combined final EIS and
                ROD.
                ---------------------------------------------------------------------------
                 When Congress enacted section 2045 of the Water Resources
                Development Act of 2007, Public Law 110-114, 121 Stat. 1041, 1103, it
                created a similar environmental review provision for water resources
                development projects by the U.S. Army Corps of Engineers (Corps). 33
                U.S.C. 2348.\46\ This project acceleration provision also requires a
                coordinated environmental review process, provides for dispute
                resolution, and codifies aspects of the NEPA regulations such as lead
                and cooperating agencies, concurrent environmental reviews, and the
                establishment of CEs. Section 2348(o) also directs the Corps to consult
                with CEQ on the development of guidance for implementing this
                provision.
                ---------------------------------------------------------------------------
                 \46\ Congress significantly revised this provision in the Water
                Resources Reform and Development Act of 2014, Public Law 113-121,
                sec. 1005(a)(1), 128 Stat. 1193 1199.
                ---------------------------------------------------------------------------
                 In 2015 Congress enacted Title 41 of the FAST Act (FAST-41), to
                provide for a more efficient environmental review and permitting
                process for ``covered projects.'' See Public Law 114-94, sec. 41001-
                41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m--4370m-12). These are
                projects that require Federal environmental review under NEPA, are
                expected to exceed $200 million, and involve the construction of
                infrastructure for certain energy production, electricity transmission,
                water resource projects, broadband, pipelines, manufacturing, and other
                sectors. Id. FAST-41 codified certain roles and responsibilities
                required by the NEPA regulations. In particular, FAST-41 imports the
                concepts of lead and cooperating agencies, and the different levels of
                NEPA analysis--EISs, EAs, and CEs. Consistent with 40 CFR 1501.5(e)
                through (f), CEQ is required to resolve any dispute over designation of
                a facilitating or lead agency for a covered project. 42 U.S.C. 4370m-
                2(a)(6)(B). Section 4370m-4 codified several requirements from the CEQ
                [[Page 43311]]
                regulations, including the requirement for concurrent environmental
                reviews, which is consistent with 40 CFR 1500.2(c), 1501.7(a)(6), and
                1502.25(a), and the tools of adoption, incorporation by reference,
                supplementation, and use of State documents, consistent with 40 CFR
                1506.3, 1502.21, 1502.9(c), and 1506.2.\47\ Finally, 42 U.S.C. 4370m-4
                addresses interagency coordination on key aspects of the NEPA process,
                including scoping (40 CFR 1501.7), identification of the range of
                reasonable alternatives for study in an EIS (40 CFR 1502.14), and the
                public comment process (40 CFR part 1503).
                ---------------------------------------------------------------------------
                 \47\ For covered projects, section 4370m-4 authorizes lead
                agencies to adopt or incorporate by reference existing environmental
                analyses and documentation prepared under State laws and procedures
                if the analyses and documentation meet certain requirements. 42
                U.S.C. 4370m-4(b)(1)(A)(i). This provision also requires that the
                lead agency, in consultation with CEQ, determine that the analyses
                and documentation were prepared using a process that allowed for
                public participation and consideration of alternatives,
                environmental consequences, and other required analyses that are
                substantially equivalent to what a Federal agency would have
                prepared pursuant to NEPA. Id.
                ---------------------------------------------------------------------------
                 To ensure a timely NEPA process so that important infrastructure
                projects can move forward, Congress has also established shorter
                statutes of limitations for challenges to certain types of projects.
                SAFETEA-LU created a 180-day statute of limitations for highway or
                public transportation capital projects, which MAP-21 later reduced to
                150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development
                Act of 2014 established a three-year statute of limitations for
                judicial review of any permits, licenses, or other approvals for water
                resources development project studies. 33 U.S.C. 2348(k). Most recently
                in FAST-41, Congress established a two-year statute of limitations for
                covered projects. 42 U.S.C. 4370m-6.
                 There are a number of additional instances where Congress has
                enacted legislation to facilitate more timely environmental reviews.
                For example, similar to the provisions described above, there are other
                statutes where Congress has called for a coordinated and concurrent
                environmental review. See, e.g., 33 U.S.C. 408(b) (concurrent review
                for river and harbor permits); 49 U.S.C. 40128 (coordination on
                environmental reviews for air tour management plans for national
                parks); 49 U.S.C. 47171 (expedited and coordinated environmental review
                process for airport capacity enhancement projects).
                 Additionally, Congress has established or directed agencies to
                establish CEs to facilitate NEPA compliance. See, e.g., 16 U.S.C.
                6554(d) (applied silvicultural assessment and research treatments); 16
                U.S.C. 6591d (hazardous fuels reduction projects to carry out forest
                restoration treatments); 16 U.S.C. 6591e (vegetation management
                activity in greater sage-grouse or mule deer habitat); 33 U.S.C. 2349
                (actions to repair, reconstruct, or rehabilitate water resources
                projects in response to emergencies); 42 U.S.C. 15942 (certain
                activities for the purpose of exploration or development of oil or
                gas); 43 U.S.C. 1772(c)(5) (development and approval of vegetation
                management, facility inspection, and operation and maintenance plans);
                MAP-21, Public Law 112-141, sec. 1315 (actions to repair or reconstruct
                roads, highways, or bridges damaged by emergencies), 1316 (projects
                within the operational right-of-way), and 1317 (projects with limited
                Federal assistance); FAA Modernization and Reform Act of 2012, Public
                Law 112-95, sec. 213(c), 126 Stat. 11, 46 (navigation performance and
                area navigation procedures); and Omnibus Appropriations Act, 2009,
                Public Law 111-8, sec. 423, 123 Stat. 524, 748 (Lake Tahoe Basin
                Management Unit hazardous fuel reduction projects).
                 Further, in the context of emergency response, including economic
                crisis, Congress has enacted legislation to facilitate timely NEPA
                reviews or to exempt certain actions from NEPA review. Congress has
                directed the use or development of alternative arrangements in
                accordance with 40 CFR 1506.11 for reconstruction of transportation
                facilities damaged in an emergency (FAST Act, Pub. L. 114-94, sec.
                1432, 129 Stat. 1312, 1429) and for projects by the Departments of the
                Interior and Commerce to address invasive species (Water Infrastructure
                Improvements for the Nation Act, Pub. L. 114-322, sec. 4010(e)(3), 130
                Stat. 1628, 1877). Section 1609(c) of the American Recovery and
                Reinvestment Act of 2009 directed agencies to complete environmental
                reviews under NEPA on an expedited basis using the most efficient
                applicable process. Public Law 111-5, sec. 1609, 123 Stat. 115, 304.
                 In 2013, Congress also enacted section 429 of the Robert T.
                Stafford Disaster Relief and Emergency Assistance Act (``Stafford
                Act''), 42 U.S.C. 5189g, which directed the President, in consultation
                with CEQ and the Advisory Council on Historic Preservation, to
                ``establish an expedited and unified interagency review process to
                ensure compliance with environmental and historic requirements under
                Federal law relating to disaster recovery projects, in order to
                expedite the recovery process, consistent with applicable law.'' Sandy
                Recovery Improvement Act of 2013, Public Law 113-2, sec. 1106, 127
                Stat. 4, 45-46. This unified Federal environmental and historic
                preservation review (UFR) process is a framework for coordinating
                Federal agency environmental and historic preservation reviews for
                disaster recovery projects associated with presidentially declared
                disasters under the Stafford Act. The goal of the UFR process is to
                enhance the ability of Federal environmental review and authorization
                processes to inform and expedite disaster recovery decisions for grant
                applicants and other potential beneficiaries of disaster assistance by
                improving coordination and consistency across Federal agencies, and
                assisting agencies in better leveraging their resources and tools.\48\
                ---------------------------------------------------------------------------
                 \48\ See generally Memorandum of Understanding Establishing the
                Unified Federal Environmental and Historic Preservation Review
                Process for Disaster Recovery Projects (July 29, 2014), https://www.fema.gov/media-library-data/1414507626204-f156c4795571b85a4f8e1c1f4c4b7de1/Final_Signed_UFR_MOU_9_24_14_508_ST.PDF.
                ---------------------------------------------------------------------------
                 Finally, in some instances, Congress has exempted actions from
                NEPA. In 1996, Congress enacted the Illegal Immigration Reform and
                Immigrant Responsibility Act, which authorized the waiver of NEPA for
                the construction of the physical barriers and roads between the United
                States and Mexico border when necessary to ``ensure expeditious
                construction.'' Public Law 104-208, sec. 102(c), 110 Stat. 3009.\49\ In
                2013, Congress exempted certain disaster recovery actions or financial
                assistance to restore ``a facility substantially to its condition prior
                to the disaster or emergency.'' 42 U.S.C. 5159. In 2020, Congress
                enacted the Coronavirus Aid, Relief, and Economic Security Act, which
                created an exemption from NEPA for the General Services
                Administration's acquisition of real property and interests in real
                property or improvements in real property in response to coronavirus in
                [[Page 43312]]
                conjunction with the provision of additional funding to prevent,
                prepare for, and respond to the coronavirus. Public Law 116-136, Div.
                B.
                ---------------------------------------------------------------------------
                 \49\ The Homeland Security Act of 2002 transferred
                responsibility for the construction of border barriers from the
                Attorney General to the Department of Homeland Security. Public Law
                107-296, 116 Stat. 2135. In 2005, the REAL ID Act amended the waiver
                authority of section 102(c) expanding the Secretary of DHS'
                authority to waive ``all legal requirements'' that the Secretary, in
                his or her own discretion, determines ``necessary to ensure
                expeditious construction'' of certain ``barriers and roads.'' Public
                Law 109-13, Div. B, tit. I, sec. 102, 119 Stat. 231, 302, 306. It
                also added a judicial review provision that limited the district
                court's jurisdiction to hear any causes or claims concerning the
                Secretary's waiver authority to solely constitutional claims. Id.
                sec. 102(c)(2)(A). Further, the provision directed that any review
                of the district court's decision be raised by petition for a writ of
                certiorari with the Supreme Court of the United States. Id. sec.
                102(c)(2)(C). See In re Border Infrastructure Envtl. Litig., 284 F.
                Supp. 3d 1092 (S.D. Cal. 2018).
                ---------------------------------------------------------------------------
                 These statutes reflect that Congress has recognized that the
                environmental review process can be more efficient and effective,
                including for infrastructure projects, and that in certain
                circumstances, Congress has determined it appropriate to exempt certain
                actions from NEPA review. Congress also has identified specific process
                improvements that can accelerate environmental reviews, including
                improved interagency coordination, concurrent reviews, and increased
                transparency.
                E. Presidential Directives
                 Over the past two decades and multiple administrations, Presidents
                also have recognized the need to improve the environmental review
                process to make it more timely and efficient, and have directed
                agencies, through Executive orders and Presidential memoranda, to
                undertake various initiatives to address these issues. In 2002,
                President Bush issued E.O. 13274 titled ``Environmental Stewardship and
                Transportation Infrastructure Project Reviews,'' \50\ which stated that
                the development and implementation of transportation infrastructure
                projects in an efficient and environmentally sound manner is essential,
                and directed agencies to conduct environmental reviews for
                transportation projects in a timely manner.
                ---------------------------------------------------------------------------
                 \50\ 67 FR 59449 (Sept. 23, 2002).
                ---------------------------------------------------------------------------
                 In 2011, President Obama's memorandum titled ``Speeding
                Infrastructure Development Through More Efficient and Effective
                Permitting and Environmental Review'' \51\ directed certain agencies to
                identify up to three high-priority infrastructure projects for
                expedited environmental review and permitting decisions to be tracked
                publicly on a ``centralized, online tool.'' This requirement led to the
                creation of what is now the Permitting Dashboard,
                www.permits.performance.gov.
                ---------------------------------------------------------------------------
                 \51\ https://www.govinfo.gov/content/pkg/DCPD-201100601/pdf/DCPD-201100601.pdf.
                ---------------------------------------------------------------------------
                 In 2012, E.O. 13604, titled ``Improving Performance of Federal
                Permitting and Review of Infrastructure Projects,'' \52\ established an
                interagency Steering Committee on Federal Infrastructure Permitting and
                Review Process Improvement (``Steering Committee'') to facilitate
                improvements in Federal permitting and review processes for
                infrastructure projects. The Executive order directed the Steering
                Committee to develop a plan ``to significantly reduce the aggregate
                time required to make Federal permitting and review decisions on
                infrastructure projects while improving outcomes for communities and
                the environment.'' Similarly, E.O. 13616, titled ``Accelerating
                Broadband Infrastructure Deployment,'' \53\ established an interagency
                working group to, among other things, avoid duplicative reviews and
                coordinate review processes to advance broadband deployment.
                ---------------------------------------------------------------------------
                 \52\ 77 FR 18887 (Mar. 28, 2012).
                 \53\ 77 FR 36903 (June 20, 2012).
                ---------------------------------------------------------------------------
                 A 2013 Presidential Memorandum titled ``Modernizing Federal
                Infrastructure Review and Permitting Regulations, Policies, and
                Procedures'' \54\ directed the Steering Committee established by E.O.
                13604 to work with agencies, OMB, and CEQ to ``modernize Federal
                infrastructure review and permitting regulations, policies, and
                procedures to significantly reduce the aggregate time required by the
                Federal Government to make decisions in the review and permitting of
                infrastructure projects, while improving environmental and community
                outcomes'' and develop a plan to achieve this goal. Among other things,
                the memorandum directed that the plan create process efficiencies,
                including additional use of concurrent and integrated reviews; expand
                coordination with State, Tribal, and local governments; and expand the
                use of information technology tools. CEQ and OMB led the effort to
                develop a comprehensive plan to modernize the environmental review and
                permitting process while improving environmental and community
                outcomes, including budget proposals for funding and new authorities.
                Following the development of the plan, CEQ continued to work with
                agencies to improve the permitting process, including through expanded
                collection of timeframe metrics on the Permitting Dashboard. In late
                2015, these ongoing efforts were superseded by the enactment of FAST-
                41, which codified the use of the Permitting Dashboard, established the
                Federal Permitting Improvement Steering Council (``Permitting
                Council''), and established other requirements for managing the
                environmental review and permitting process for covered infrastructure
                projects.
                ---------------------------------------------------------------------------
                 \54\ 78 FR 30733 (May 22, 2013).
                ---------------------------------------------------------------------------
                 On August 15, 2017, President Trump issued E.O. 13807 titled
                ``Establishing Discipline and Accountability in the Environmental
                Review and Permitting Process for Infrastructure Projects.'' \55\
                Section 5(e)(i) directed CEQ to develop an initial list of actions to
                enhance and modernize the Federal environmental review and
                authorization process, including issuing such regulations as CEQ deems
                necessary to: (1) Ensure optimal interagency coordination of
                environmental review and authorization decisions; (2) ensure that
                multi-agency environmental reviews and authorization decisions are
                conducted in a manner that is concurrent, synchronized, timely, and
                efficient; (3) provide for use of prior Federal, State, Tribal, and
                local environmental studies, analysis, and decisions; and (4) ensure
                that agencies apply NEPA in a manner that reduces unnecessary burdens
                and delays, including by using CEQ's authority to interpret NEPA to
                simplify and accelerate the NEPA review process. In response to E.O.
                13807, CEQ published an initial list of actions and stated its intent
                to review its existing NEPA regulations in order to identify potential
                revisions to update and clarify these regulations.\56\
                ---------------------------------------------------------------------------
                 \55\ 82 FR 40463 (Aug. 24, 2017).
                 \56\ 82 FR 43226 (Sept. 14, 2017).
                ---------------------------------------------------------------------------
                F. Advance Notice of Proposed Rulemaking
                 Consistent with E.O. 13807 and CEQ's initial list of actions, and
                given the length of time since CEQ issued its regulations, on June 20,
                2018, CEQ published an ANPRM titled ``Update to the Regulations for
                Implementing the Procedural Provisions of the National Environmental
                Policy Act.'' \57\ The ANPRM requested public comments on how CEQ could
                ensure a more efficient, timely, and effective NEPA process consistent
                with the Act's national environmental policy and provided for a 30-day
                comment period.\58\
                ---------------------------------------------------------------------------
                 \57\ 83 FR 28591 (June 20, 2018).
                 \58\ In response to comments, CEQ extended the comment period 31
                additional days to August 20, 2018. 83 FR 32071 (July 11, 2018).
                ---------------------------------------------------------------------------
                 The ANPRM requested comment on potential revisions to update and
                clarify the NEPA regulations, and included a list of questions on
                specific aspects of the regulations. For example, with respect to the
                NEPA process, the ANPRM asked whether there are provisions that CEQ
                could revise to ensure more efficient environmental reviews and
                authorization decisions, such as facilitating agency use of existing
                environmental studies, analyses and decisions, as well as improving
                interagency coordination. The ANPRM also requested comments on the
                scope of NEPA reviews, including whether CEQ should revise, clarify, or
                add definitions. The ANPRM also asked whether additional revisions
                relating to
                [[Page 43313]]
                environmental documentation issued pursuant to NEPA, including CEs,
                EAs, EISs, and other documents, would be appropriate. Finally, the
                ANPRM requested general comments, including whether there were obsolete
                provisions that CEQ could update to reflect new technologies or make
                the process more efficient, or that CEQ could revise to reduce
                unnecessary burdens or delays.
                 In response to the ANPRM, CEQ received over 12,500 comments, which
                are available for public review.\59\ These included comments from a
                wide range of stakeholders, including States, Tribes, localities,
                environmental organizations, trade associations, NEPA practitioners,
                and interested members of the public. While some commenters opposed any
                updates to the regulations, other commenters urged CEQ to consider
                potential revisions. Though the approaches to the update of the NEPA
                regulations varied, most of the substantive comments supported some
                degree of updating of the regulations. Many noted that overly lengthy
                documents and the time required for the NEPA process remain real and
                legitimate concerns despite the NEPA regulations' explicit direction
                with respect to reducing paperwork and delays. In general, numerous
                commenters requested that CEQ consider revisions to modernize its
                regulations, reduce unnecessary burdens and costs, and make the NEPA
                process more efficient, effective, and timely.
                ---------------------------------------------------------------------------
                 \59\ See https://www.regulations.gov, docket no. CEQ-2018-0001.
                ---------------------------------------------------------------------------
                G. Notice of Proposed Rulemaking
                 On January 9, 2020, President Trump announced the release of CEQ's
                NPRM titled ``Update to the Regulations Implementing the Procedural
                Provisions of the National Environmental Policy Act'' and the rule was
                published in the Federal Register on January 10, 2020.\60\ The NPRM
                provided a 60-day comment period, and the comment period ended on March
                10, 2020.
                ---------------------------------------------------------------------------
                 \60\ Supra note 8.
                ---------------------------------------------------------------------------
                 CEQ hosted two public hearings in Denver, Colorado on February 11,
                2020, and in Washington, DC on February 25, 2020.\61\ CEQ also notified
                all federally recognized Tribes and over 400 interested groups,
                including State, Tribal, and local officials, environmental
                organizations, trade associations, NEPA practitioners, and interested
                members of the public representing a broad range of diverse views, that
                CEQ had issued the proposed rule for public comment.\62\ Additionally,
                CEQ made information to aid the public's review of the proposed rule
                available on its websites at www.whitehouse.gov/ceq and www.nepa.gov,
                including a redline version of the proposed changes to the regulations
                posted on www.regulations.gov, along with a presentation on the
                proposed rule and other background information.\63\ CEQ also conducted
                additional public outreach to solicit comments, including meetings with
                Tribal representatives in Denver, Colorado, Anchorage, Alaska, and
                Washington, DC.\64\
                ---------------------------------------------------------------------------
                 \61\ Transcripts of the two public hearings with copies of
                testimony and written comments submitted at the hearings are
                available in the docket on www.regulations.gov, docket ID CEQ-2019-
                0003.
                 \62\ Notices are available under ``Supporting Documents'' in the
                docket, www.regulations.gov, docket ID CEQ-2019-0003, https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=SR%2BO&D=CEQ-2019-0003.
                 \63\ Id.
                 \64\ CEQ also includes meeting summaries under supplemental
                materials. Id.
                ---------------------------------------------------------------------------
                 In response to the NPRM, CEQ received comments from a broad range
                of stakeholders on a diversity of issues relating to the proposed rule.
                These included comments from members of Congress, State, Tribal, and
                local officials, environmental organizations, trade associations, NEPA
                practitioners, and interested members of the public. CEQ also received
                a large number of campaign comments, including comments with multiple
                signatories or groups of comments that were identical or very similar
                in form or content. The comments received on the NPRM raised a variety
                of issues related to the rulemaking and contents of the proposed rule,
                including procedural, legal, and technical issues. The Final Rule
                Response to Comments provides a summary of the comments and responses
                to those comments.
                II. Summary of Final Rule
                 In this section, CEQ summarizes the NPRM proposed changes and the
                final rule, including any changes or additions to what CEQ proposed.
                CEQ makes the additions, clarifications, and updates to its regulations
                based on its record evaluating the implementation of the NEPA
                regulations, suggestions in response to the ANPRM, and comments
                provided in response to the NPRM. The revisions finalized in this rule
                advance the original objectives of the 1978 regulations \65\ ``[t]o
                reduce paperwork, to reduce delays, and at the same time to produce
                better decisions [that] further the national policy to protect and
                enhance the quality of the human environment.'' \66\
                ---------------------------------------------------------------------------
                 \65\ In this final rule, CEQ uses the term ``1978 regulations''
                to refer to the regulations as they exist prior to this final rule's
                amendment thereof, which includes the 1986 amendment to 40 CFR
                1502.22.
                 \66\ 43 FR 55978 (Nov. 29, 1978).
                ---------------------------------------------------------------------------
                 In this final rule, CEQ makes various revisions to align the
                regulations with the text of the NEPA statute, including revisions to
                reflect the procedural nature of the statute, including under section
                102(2). CEQ also revises the regulations to ensure that environmental
                documents prepared pursuant to NEPA are concise and serve their purpose
                of informing decision makers regarding significant potential
                environmental effects of proposed major Federal actions and the public
                of the environmental issues in the pending decision-making process. CEQ
                makes changes to ensure that the regulations reflect changes in
                technology, increase public participation in the process, and
                facilitate the use of existing studies, analyses, and environmental
                documents prepared by States, Tribes, and local governments.
                 CEQ also makes its regulations consistent with the OFD policy
                established by E.O. 13807 for multi-agency review and related
                permitting and other authorization decisions. The Executive order
                specifically instructed CEQ to take steps to ensure optimal interagency
                coordination, including through a concurrent, synchronized, timely, and
                efficient process for environmental reviews and authorization
                decisions. In response to the NPRM, CEQ received many comments
                supporting revisions to codify key aspects of the OFD policy in the
                NEPA regulations, including by providing greater specificity on the
                roles and responsibilities of lead and cooperating agencies. Commenters
                also suggested that the regulations require agencies to establish and
                adhere to timetables for the completion of reviews, another key element
                of the OFD policy. To promote improved interagency coordination and
                more timely and efficient reviews and in response to these comments,
                CEQ codifies and generally applies a number of key elements from the
                OFD policy in this final rule. These include development by the lead
                agency of a joint schedule, procedures to elevate delays or disputes,
                preparation of a single EIS and joint ROD to the extent practicable,
                and a two-year goal for completion of environmental reviews. Consistent
                with section 104 of NEPA (42 U.S.C. 4334), codification of these
                policies will not limit or affect the authority or legal
                responsibilities of agencies under other statutory mandates that may be
                covered by joint schedules,
                [[Page 43314]]
                and CEQ includes language to that effect in Sec. 1500.6.\67\
                ---------------------------------------------------------------------------
                 \67\ In the preamble, CEQ uses the section symbol (Sec. ) to
                refer to the final regulations as set forth in this final rule and
                40 CFR to refer to the 1978 CEQ regulations as set forth in 40 CFR
                parts 1500-1508.
                ---------------------------------------------------------------------------
                 CEQ also clarifies the process and documentation required for
                complying with NEPA by amending part 1501 to add sections on threshold
                considerations, determination of the appropriate level of NEPA review,
                and the application of CEs; and revising sections in part 1501 on EAs
                and findings of no significant impact (FONSIs), and EISs in part 1502.
                CEQ further revises the regulations to promote more efficient and
                timely environmental reviews, including revisions to promote
                interagency coordination by amending sections of parts 1501, 1506, and
                1507 relating to lead, cooperating, and participating agencies, timing
                of agency action, scoping, and agency NEPA procedures.
                 To promote a more efficient and timely NEPA process, CEQ amends
                provisions in parts 1501, 1506, and 1507 relating to applying NEPA
                early in the process, scoping, tiering, adoption, use of current
                technologies, and avoiding duplication of State, Tribal, and local
                environmental reviews; revises parts 1501 and 1502 to provide for
                presumptive time and page limits; and amends part 1508 to clarify the
                definitions. For example, CEQ includes two new mechanisms to facilitate
                the use of CEs when appropriate. Under Sec. 1506.3(d), an agency can
                adopt another agency's determination that a CE applies to a proposed
                action when the adopting agency's proposed action is substantially the
                same. This extends the adoption process and standards from EISs to CE
                determinations.\68\ This allows agencies to ``piggyback'' where more
                than one agency is taking an action related to the same project or
                activity. Alternatively, to apply CEs listed in another agency's
                procedures (without that agency already having made a determination
                that a CE applies to a substantially similar action), agencies can
                establish a process in their agency NEPA procedures to coordinate and
                apply CEs listed in other agencies' procedures.
                ---------------------------------------------------------------------------
                 \68\ The final rule also extends the adoption process and
                standards, which only applies to EISs under the 1978 regulations, to
                EAs as well.
                ---------------------------------------------------------------------------
                 Another efficiency included in this final rule is the ability for
                agencies to identify other requirements that serve the function of
                agency compliance with NEPA. Under Sec. Sec. 1501.1 and 1507.3(d)(6),
                agencies may determine that another statute's requirements serve the
                function of agency compliance with NEPA. Alternatively, agencies may
                designate in their agency NEPA procedures one or more procedures or
                documents under other statutes or Executive orders that satisfy one or
                more requirements in the NEPA regulations, consistent with Sec.
                1507.3(c)(5). Finally, Sec. 1506.9 allows agencies to substitute
                processes and documentation developed as part of the rulemaking process
                for corresponding requirements in these regulations.
                 As noted above, NEPA is a procedural statute that has twin aims.
                The first is to promote informed decision making, while the second is
                to inform the public about the agency's decision making. In this final
                rule, CEQ amends parts 1500, 1501, 1502, 1503, 1505, and 1508 to ensure
                that agencies solicit and consider relevant information early in the
                NEPA process and have the maximum opportunity to take that information
                into account in their decision making.
                 In situations where an EIS is required, this process takes place in
                two discrete steps. First, Sec. 1501.9(d) directs agencies to include
                information on the proposed action in the NOI, including its expected
                impacts and alternatives, and a request for comments from interested
                parties on the potential alternatives, information, and analyses
                relevant to the proposed action. Second, Sec. 1503.1(a) requires
                agencies to request comments on the analysis and conclusions of the
                draft EIS. The purpose of these two provisions is to bring relevant
                comments, information, and analyses to the agency's attention, as early
                in the process as possible, to enable the agency to make maximum use of
                this information.
                 To facilitate this process, Sec. 1503.3 requires comments on the
                draft EIS to be submitted on a timely basis and to be as specific as
                possible. Similarly, Sec. 1503.1(a)(3) requires agencies to invite
                interested parties to comment specifically on the alternatives,
                information, and analyses submitted for consideration in the
                development of the draft EIS. Finally, Sec. 1503.3(b) provides that
                comments, information, and analyses on the draft EIS not timely
                received are deemed unexhausted and therefore forfeited. The intent of
                these amendments is two-fold: (1) To ensure that comments are timely
                received and at a level of specificity where they can be meaningfully
                taken into account, where appropriate; and (2) to prevent unnecessary
                delay in the decision-making process.
                 Consistent with this intent, Sec. 1500.3(b)(2) also directs
                agencies to include a new section in both the draft and final EIS that
                summarizes all alternatives, information, and analyses submitted by
                interested parties in response to the agency's requests for comment in
                the NOI and on the draft EIS. In addition, Sec. Sec. 1502.17(a)(2) and
                1503.1(a)(3) direct agencies to request comment on the summary in the
                draft EIS. The purpose of these provisions is to ensure that the
                agency, through outreach to the public, has identified all relevant
                information submitted by State, Tribal, and local governments and other
                public commenters. Although not a substitute for the entire record, the
                summary will assist agency decision makers in their consideration of
                the record for the proposed action. As the Supreme Court observed in
                Metropolitan Edison Co. v. People Against Nuclear Energy, ``[t]he scope
                of [an] agency's inquiries must remain manageable if NEPA's goal of
                `[insuring] a fully informed and well-considered decision' . . . is to
                be accomplished.'' 460 U.S. at 776 (quoting Vt. Yankee, 435 U.S. at
                558).
                 Finally, informed by the summary included in the final EIS pursuant
                to Sec. Sec. 1500.3(b)(2) and 1502.17 and the response to comments
                pursuant to Sec. 1503.4, together with any other material in the
                record that he or she determines to be relevant, the decision maker is
                required under Sec. 1505.2(b) to certify in the ROD that the agency
                has considered the alternatives, information, analyses, and objections
                submitted by State, Tribal, and local governments and public commenters
                for consideration in the development of the final EIS. Section
                1505.2(b) further provides that a decision certified in this manner is
                entitled to a presumption that the agency has adequately considered the
                submitted alternatives, information, and analyses, including the
                summary thereof, in reaching its decision. This presumption will
                advance the purposes of the directive in E.O. 11991 to ensure that EISs
                are supported by evidence that agencies have performed the necessary
                environmental analyses. See E.O. 11991, sec. 1 amending E.O. 11514,
                sec. 3(h). This presumption is also consistent with the longstanding
                presumption of regularity that government officials have properly
                discharged their official duties. See U.S. Postal Serv. v. Gregory, 534
                U.S. 1, 10 (2001) (``[W]e note that a presumption of regularity
                attaches to the actions of government agencies.'' (citing United States
                v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); INS v. Miranda, 459
                U.S. 14, 18 (1982) (specific evidence required to overcome presumption
                that public officers have executed their responsibilities properly);
                Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
                (1971) (Although a
                [[Page 43315]]
                statute prohibited Federal funds for roads through parks absent a
                feasible and prudent alternative, and although the Secretary of
                Transportation approved funds without formal findings, the Secretary's
                decision-making process was nevertheless entitled to a presumption of
                regularity.); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279, 296
                (1965) (noting ``the presumption to which administrative agencies are
                entitled--that they will act properly and according to law''); Phila. &
                T. Ry. v. Stimpson, 39 U.S. (14 Pet.) 448, 458 (1840) (Where a statute
                imposed certain conditions before a corrected patent could issue, the
                signatures of the President and the Secretary of State on a corrected
                patent raised a presumption that the conditions were satisfied, despite
                absence of recitals to that effect on face of patent.); Martin v. Mott,
                25 U.S. (12 Wheat.) 19, 33 (1827) (``Every public officer is presumed
                to act in obedience to his duty, until the contrary is shown . . .
                .''); Udall v. Wash., Va. & Md. Coach Co., 398 F.2d 765, 769 (D.C. Cir.
                1968) (The Secretary of the Interior's determination that limitation of
                commercial bus service was required to preserve a parkway's natural
                beauty was entitled to presumption of validity, and the burden was on
                the challenger to overcome it.).
                 In light of this precedent and the interactive process established
                by these regulations, under which the agency and interested parties
                exchange information multiple times, the agency compiles and evaluates
                summaries of that information, and a public official is required to
                certify the agency's consideration of the record, it is CEQ's intention
                that this presumption may be rebutted only by clear and convincing
                evidence that the agency has not properly discharged its duties under
                the statute.
                 Finally, CEQ revises the regulations to make them easier to
                understand and apply. CEQ reorganizes the regulatory text to move
                topics addressed in multiple sections and sometimes multiple parts into
                consolidated sections. CEQ simplifies and clarifies part 1508 to focus
                on definitions by moving operative requirements to the relevant
                regulatory provisions. CEQ revises the regulations to consolidate
                provisions and reduce duplication. Such consolidation, reordering, and
                reorganization promotes greater clarity and ease of use.
                A. Changes Throughout Parts 1500-1508
                 CEQ proposed several revisions throughout parts 1500-1508 to
                provide consistency, improve clarity, and correct grammatical errors.
                CEQ proposed to make certain grammatical corrections in the regulations
                where it proposed other changes to the regulations to achieve the goals
                of this rulemaking, or where CEQ determined the changes are necessary
                for the reader to understand fully the meaning of the sentence. CEQ
                proposed to revise sentences from passive voice to active voice to help
                identify the responsible parties. CEQ also proposed to correct the
                usage of the term ``insure'' with ``ensure'' consistent with modern
                usage. ``Insure'' is typically used in the context of providing or
                obtaining insurance, whereas ``ensure'' is used in the context of
                making something sure, certain, or safe. While NEPA uses the term
                ``insure,'' the context in which it is used makes it clear that
                Congress meant ``ensure'' consistent with modern usage. Similarly, CEQ
                proposed to correct the use of ``which'' and ``that'' throughout the
                rule.
                 CEQ proposed to add paragraph letters to certain introductory
                paragraphs where it would improve clarity. Finally, CEQ invited comment
                on whether it should make these types of grammatical and editorial
                changes throughout the rule or if there are additional specific
                instances where CEQ should make these types of changes. In the final
                rule, CEQ adopts the proposed revisions to provide consistency and
                clarity and to correct grammatical errors and makes these types of
                changes throughout.
                 CEQ proposed to add ``Tribal'' to the phrase ``State and local''
                throughout the rule to ensure consultation with Tribal entities and to
                reflect existing NEPA practice to coordinate or consult with affected
                Tribal governments and agencies, as necessary and appropriate for a
                proposed action. CEQ also proposed this change in response to comments
                on the ANPRM supporting expansion of the recognition of the sovereign
                rights, interests, and expertise of Tribes. CEQ proposed to eliminate
                the provisions in the regulations that limit Tribal interest to
                reservations. CEQ adopts these proposals in the final rule and makes
                these additions and revisions in Sec. Sec. 1500.3(b)(2)-(4),
                1500.4(p), 1500.5(j), 1501.2(b)(4)(ii), 1501.3(b)(2)(iv), 1501.5(e),
                1501.7(b) and (d), 1501.8(a), 1501.9(b), 1501.10(f), 1502.5(b),
                1502.16(a)(5), 1502.17(a) and (b), 1502.20(a), 1503.1(a)(2)(i) and
                (ii), 1505.2(b), and 1506.1(b), 1506.2, 1506.6(b)(3)(i)-(iii), and
                1508.1(e), (k), and (w). As noted in the NPRM, these changes are
                consistent with and in support of government-to-government consultation
                pursuant to E.O. 13175, titled ``Consultation and Coordination With
                Indian Tribal Governments.'' \69\
                ---------------------------------------------------------------------------
                 \69\ 65 FR 67249 (Nov. 9, 2000).
                ---------------------------------------------------------------------------
                 CEQ proposed several changes for consistent use of certain terms.
                In particular, CEQ proposed to change ``entitlements'' to the defined
                term ``authorizations'' proposed in Sec. 1508.1(c) throughout the
                regulations and added ``authorizations'' where appropriate to reflect
                the mandate in E.O. 13807 for better integration and coordination of
                authorization decisions and related environmental reviews. CEQ is
                adopting these revisions in the final rule in Sec. Sec. 1501.2(a),
                1501.7(i), 1501.9(d)(4) and (f)(4), 1502.13, 1502.24(b), 1503.3(d), and
                1508.1(w).
                 CEQ proposed to use the term ``decision maker'' to refer to an
                individual responsible for making decisions on agency actions and
                ``senior agency official'' to refer to the individual who oversees the
                agency's overall compliance with NEPA. CEQ adopts these changes in the
                final rule. There may be multiple individuals within certain
                departments or agencies that have these responsibilities, including
                where subunits have developed agency procedures or NEPA compliance
                programs.
                 CEQ proposed to replace ``circulate'' or ``circulation'' with
                ``publish'' or ``publication'' throughout the rule and make ``publish
                or publication'' a defined term in Sec. 1508.1(y), which provides
                agencies with the flexibility to make environmental review and
                information available to the public by electronic means not available
                at the time of promulgation of the CEQ regulations in 1978. As
                explained in the NPRM, historically, the practice of circulation
                included mailing of hard copies or providing electronic copies on disks
                or CDs. While it may be necessary to provide a hard copy or copy on
                physical media in limited circumstances, agencies now provide most
                documents in an electronic format by posting them online and using
                email or other electronic forms of communication to notify interested
                or affected parties. This change will help reduce paperwork and delays,
                and modernize the NEPA process to be more accessible to the public. CEQ
                finalizes these changes in Sec. Sec. 1500.4(o), 1501.2(b)(2),
                1502.9(b) and (d)(3), 1502.20, 1503.4(b) and (c), 1506.3(b)(1) and (2),
                and 1506.8(c)(2).
                 CEQ proposed to change the term ``possible'' to ``practicable'' in
                the NPRM in a number of sections of the regulations. As noted in the
                NPRM, ``practicable'' is the more commonly used term in regulations to
                convey the ability for something to be done,
                [[Page 43316]]
                considering the cost, including time required, technical and economic
                feasibility, and the purpose and need for agency action. The term
                ``practicable,'' which is in the statute (42 U.S.C. 4331(a), (b)) and
                used many times in the 1978 regulations,\70\ is consistent with notions
                of feasibility, which the case law has recognized as part of the NEPA
                process. See, e.g., Vt. Yankee, 435 U.S. at 551 (``alternatives must be
                bounded by some notion of feasibility''); Kleppe, 427 U.S. at 414
                (``[P]ractical considerations of feasibility might well necessitate
                restricting the scope'' of an agency's analysis.) CEQ makes these
                changes in the final rule in Sec. Sec. 1501.7(h)(1) and (2),
                1501.8(b)(1), 1502.5, 1502.9(b), 1504.2, and 1506.2(b) and (c).
                ---------------------------------------------------------------------------
                 \70\ See 40 CFR 1500.2(f), 1501.4(b), 1501.7, 1505.2(c),
                1506.6(f) and 1506.12(a).
                ---------------------------------------------------------------------------
                 Similarly, CEQ proposed to change ``no later than immediately'' to
                ``as soon as practicable'' in Sec. 1502.5(b), and CEQ finalizes this
                change. Finally, CEQ proposed to refer to the procedures required in
                Sec. 1507.3 using the term ``agency NEPA procedures'' throughout. CEQ
                makes this change in the final rule.
                 CEQ proposed to eliminate obsolete references and provisions in
                several sections of the CEQ regulations. In particular, CEQ proposed to
                remove references to the 102 Monitor in 40 CFR 1506.6(b)(2) and
                1506.7(c) because the publication no longer exists, and OMB Circular A-
                95, which was revoked pursuant to section 7 of E.O. 12372 (47 FR 30959,
                July 16, 1982), including the requirement to use State and area-wide
                clearinghouses in 40 CFR 1501.4(e)(2), 1503.1(a)(2)(iii), 1505.2, and
                1506.6(b)(3)(i). CEQ removes these references in the final rule.
                 CEQ proposed changes to citations and authorities in parts 1500
                through 1508. CEQ is updating the authorities sections for each part to
                correct the format. CEQ also is removing cross-references to the
                sections of part 1508, ``Definitions,'' and updates or inserts new
                cross-references throughout the rule to reflect revised or new
                sections. CEQ makes these changes throughout the final rule.
                 Finally, CEQ is reorganizing chapter V of title 40 of the Code of
                Federal Regulations to place the NEPA regulations into a new subchapter
                A, ``National Environmental Policy Act Implementing Regulations,'' and
                organizing its other regulations into their own new subchapter B,
                ``Administrative Procedures and Operations.'' References to ``parts
                1500 through 1508'' in the proposed rule are referenced to ``this
                subchapter'' in the final rule. CEQ notes that the provisions of the
                NEPA regulations, which the final rule comprehensively updates, should
                be read in their entirety to understand the requirements under the
                modernized regulations.\71\
                ---------------------------------------------------------------------------
                 \71\ While the final rule retains, in large part, the numbering
                scheme used in the 1978 regulations, the final rule comprehensively
                updates the prior regulations. The new regulations should be
                consulted and reviewed to ensure application is consistent with the
                modernized provisions. Assumptions should not be made concerning the
                degree of change to, similarity to, or any interpretation of the
                prior version of the regulations.
                ---------------------------------------------------------------------------
                B. Revisions To Update the Purpose, Policy, and Mandate (Part 1500)
                 In part 1500, CEQ proposed several revisions to update the policy
                and mandate sections of the regulations to reflect statutory, judicial,
                policy, and other developments since the CEQ regulations were issued in
                1978. CEQ includes the proposed changes with some revisions in the
                final rule.
                1. Purpose and Policy (Sec. 1500.1)
                 In the NPRM, CEQ proposed to retitle and revise Sec. 1500.1,
                ``Purpose and policy,'' to align this section with the statutory text
                of NEPA and certain case law, and reflect the procedural requirements
                of section 102(2) (42 U.S.C. 4332(2)). These changes also are
                consistent with the President's directive to CEQ to ``[i]ssue
                regulations to Federal agencies for the implementation of the
                procedural provisions of the Act (42 U.S.C. 4332(2)).'' E.O. 11514, as
                amended by E.O. 11991, sec. 3(h). Many commenters supported these
                revisions to promote more efficient and timely reviews under NEPA,
                while others opposed the changes and requested that CEQ maintain the
                existing language. CEQ revises this section in the final rule
                consistent with its proposal.
                 Section 1500.1 provides that NEPA is a procedural statute intended
                to ensure Federal agencies consider the environmental impacts of their
                actions in the decision-making process. The Supreme Court has made
                clear that NEPA is a procedural statute that does not mandate
                particular results; ``[r]ather, NEPA imposes only procedural
                requirements on [F]ederal agencies with a particular focus on requiring
                agencies to undertake analyses of the environmental impact of their
                proposals and actions.'' Pub. Citizen, 541 U.S. at 756-57 (citing
                Methow Valley, 490 U.S. at 349-50); see also Vt. Yankee, 435 U.S. at
                558 (``NEPA does set forth significant substantive goals for the
                Nation, but its mandate to the agencies is essentially procedural.'').
                 As proposed in the NPRM, CEQ revises Sec. 1500.1(a) to summarize
                section 101 of the Act (42 U.S.C. 4331) and to reflect that section
                102(2) establishes the procedural requirements to carry out the policy
                stated in section 101. CEQ revises Sec. 1500.1(a) consistent with the
                case law to reflect that the purpose and function of NEPA is satisfied
                if Federal agencies have considered relevant environmental information
                and the public has been informed regarding the decision-making process,
                and to reflect that NEPA does not mandate particular results or
                substantive outcomes. Marsh, 490 U.S. at 373-74; Vt. Yankee, 435 U.S.
                at 558. CEQ replaces the vague reference to ``action-forcing''
                provisions ensuring that Federal agencies act ``according to the letter
                and spirit of the Act'' (as well as consistently with their organic and
                program-specific governing statutes) with a more specific reference to
                the consideration of environmental impacts of their actions in agency
                decisions. These changes codify the Supreme Court's interpretation of
                section 102 in two important respects: Section 102 ``ensures that the
                agency, in reaching its decision, will have available, and will
                carefully consider, detailed information concerning significant
                environmental impacts; it also guarantees that the relevant information
                will be made available to the larger audience that may also play a role
                in both the decision[-]making process and the implementation of that
                decision.'' Methow Valley, 490 U.S. at 349; see also Winter v. Nat.
                Res. Def. Council, Inc., 555 U.S. 7, 23 (2008); Pub. Citizen, 541 U.S.
                at 756-58.
                 Consistent with CEQ's proposal in the NPRM, CEQ revises Sec.
                1500.1(b) to describe the NEPA regulations as revised in this final
                rule. In particular, CEQ revises this paragraph to reflect that the
                regulations include direction to Federal agencies to determine what
                actions are subject to NEPA's procedural requirements and the level of
                NEPA review, where applicable. The revisions also ensure that Federal
                agencies identify and consider relevant environmental information early
                in the process in order to promote informed decision making. These
                revisions reduce unnecessary burdens and delays consistent with E.O.
                13807 and the purposes of the regulations as originally promulgated in
                1978. These amendments emphasize that the policy of integrating NEPA
                with other environmental reviews is to promote concurrent and timely
                reviews and decision making consistent with statutes, Executive orders,
                and CEQ guidance. See, e.g., 42 U.S.C. 5189g; 23 U.S.C. 139; 42 U.S.C.
                4370m et seq.; E.O. 13604; E.O. 13807; Mitigation
                [[Page 43317]]
                Guidance, supra note 29, and Timely Environmental Reviews Guidance,
                supra note 29.
                2. Remove and Reserve Policy (Sec. 1500.2)
                 CEQ proposed to remove and reserve 40 CFR 1500.2, ``Policy.'' The
                section included language that is identical or similar to language in
                E.O. 11514, as amended. That Executive order directed CEQ to develop
                regulations that would make the ``[EIS] process more useful to decision
                makers and the public; and . . . reduce paperwork and the accumulation
                of extraneous background data, in order to emphasize the need to focus
                on real environmental issues and alternatives.'' See E.O. 11514, as
                amended by E.O. 11991, sec. 3(h). The Executive order also directed CEQ
                to require EISs to be ``concise, clear and to the point, and supported
                by evidence that agencies have made the necessary environmental
                analyses.'' Id. CEQ proposed to remove this section because it is
                duplicative of other sections of the regulations, thereby eliminating
                redundancy. CEQ is making this change in the final rule.
                 Specifically, 40 CFR 1500.2(a) restated the statutory text in
                section 102 of NEPA (42 U.S.C. 4332) and is duplicative of language in
                Sec. 1500.6, ``Agency authority,'' requiring each agency to interpret
                the provisions of NEPA as a supplement to its existing authority and as
                a mandate to view policies and missions in light of the Act's national
                environmental objectives. Paragraph (b) required agencies to implement
                procedures to make the NEPA process more useful to decision makers and
                the public; reduce paperwork and accumulation of extraneous background
                data; emphasize relevant environmental issues and alternatives; and
                make EISs concise, clear, and to the point and supported by evidence
                that thy have made the necessary analyses. This paragraph is
                duplicative of language in Sec. 1502.1, ``Purpose of environmental
                impact statement,'' and paragraphs (c) through (i) of Sec. 1500.4,
                ``Reducing paperwork.''
                 Paragraph (c) of 40 CFR 1500.2, requiring agencies to integrate
                NEPA requirements with other planning and review procedures to run
                concurrently rather than consecutively, is duplicative of language in
                Sec. 1502.24, ``Environmental review and consultation requirements,''
                Sec. 1501.2, ``Apply NEPA early in the process,'' Sec. 1501.9,
                ``Scoping,'' and Sec. 1500.4, ``Reducing paperwork.'' Paragraph (d)
                encouraging public involvement is duplicative of sections that direct
                agencies to provide notice and information to and seek comment from the
                public regarding proposed actions and environmental documents,
                including provisions in Sec. 1506.6, ``Public involvement,'' Sec.
                1501.9, ``Scoping,'' and Sec. 1503.1, ``Inviting comments and
                requesting information and analyses.'' \72\ Paragraph (e), which
                required agencies to use the NEPA process to identify and assess
                reasonable alternatives to proposed actions that will avoid or minimize
                adverse effects, is duplicative of language in Sec. 1502.1, ``Purpose
                of environmental impact statement,'' and paragraph (c) of Sec. 1505.2,
                ``Record of decision in cases requiring environmental impact
                statements.''
                ---------------------------------------------------------------------------
                 \72\ Section 1506.6 includes detailed provisions directing
                agencies to facilitate public involvement, including by providing
                the public with notice regarding actions, holding or sponsoring
                public hearings, and providing notice of NEPA-related hearings,
                public meetings, and other opportunities for public involvement, and
                the availability of environmental documents. Section 1501.9 requires
                agencies to issue a public notice regarding proposed actions for
                which the agencies will be preparing an EIS and to include specific
                information for, and to solicit information from the public
                regarding such proposed actions. Section 1503 provides direction to
                agencies regarding inviting comments from the public and requesting
                information and analyses.
                ---------------------------------------------------------------------------
                 Paragraph (f) of 40 CFR 1500.2 required agencies to use all
                practicable means, consistent with the Act and other essential
                considerations of national policy, to restore and enhance the quality
                of the human environment and avoid or minimize any possible adverse
                effects of their actions upon the quality of the human environment. The
                rule specifically directs agencies to consider reasonable alternatives
                to avoid or minimize adverse environmental impacts in Sec. 1502.1,
                ``Purpose of environmental impact statement.'' The final rule also
                provides direction to agencies about the relevant environmental
                information to be considered in the decision-making process, including
                potential adverse effects and alternatives, and expressly directs
                agencies to identify alternatives considered (Sec. Sec. 1502.14 and
                1502.16), and to state in their RODs whether they have adopted all
                practicable means to avoid or minimize environmental harm from the
                alternative selected (Sec. 1505.2).
                3. NEPA Compliance (Sec. 1500.3)
                 CEQ proposed numerous changes and additions to Sec. 1500.3, ``NEPA
                compliance,'' including the addition of paragraph headings to improve
                readability. In paragraph (a), ``Mandate,'' CEQ proposed to update the
                authorities under which it issues the regulations. CEQ adds these
                references, including to E.O. 13807, in the final rule. In the NPRM,
                CEQ proposed to add a sentence to this paragraph regarding agency NEPA
                procedures not imposing additional procedures or requirements beyond
                those set forth in the regulations. To address confusion expressed by
                some commenters, CEQ does not include this sentence in the final rule
                because it includes this requirement in Sec. 1507.3, ``Agency NEPA
                procedures.''
                 CEQ proposed to add a new paragraph (b), ``Exhaustion,'' to
                summarize public comment requirements and an exhaustion requirement.
                Specifically, CEQ proposed in paragraph (b)(1) to require that, in a
                NOI to prepare an EIS, agencies request comments from interested
                parties on the potential effects of and potential alternatives to
                proposed actions, and also request that interested parties identify any
                relevant information, studies, or analyses of any kind concerning such
                effects. CEQ includes this provision in the final rule to ensure that
                agencies solicit and consider relevant information early in the
                development of an EIS.
                 In paragraph (b)(2) of Sec. 1500.3, CEQ proposed to require that
                the EIS include a summary of all the comments received for
                consideration in developing the EIS. CEQ includes this provision in the
                final rule with some changes. For consistency with the language in
                Sec. 1502.17, the final rule specifies that the draft and final EISs
                must include a summary of ``all alternatives, information, and
                analyses.'' Also, in response to comments requesting clarification on
                the meaning of ``public commenters,'' the final rule changes this
                phrase in paragraphs (b)(2) and (3) of Sec. 1500.3 and in Sec.
                1502.17 to ``State, Tribal, and local governments and other public
                commenters'' for consistency with Sec. Sec. 1501.9 and 1506.6 and to
                clarify that public commenters includes governments as well as other
                commenters such as organizations, associations, and individuals.
                 In paragraph (b)(3) of Sec. 1500.3, CEQ proposed to require that
                public commenters timely submit comments on draft EISs and any
                information on environmental impacts or alternatives to a proposed
                action to ensure informed decision making by Federal agencies. CEQ
                further proposed to provide that comments not timely raised and
                information not provided shall be deemed unexhausted and forfeited.
                This reinforces the principle that parties may not raise claims based
                on issues they themselves did not raise during the public comment
                period. See, e.g., Pub. Citizen, 541 U.S. at 764-65 (finding claims
                forfeited because respondents had not raised particular objections to
                the EA in their comments); Karst Envtl. Educ. & Prot., Inc. v. Fed.
                Highway Admin., 559 Fed. Appx. 421, 426-27
                [[Page 43318]]
                (6th Cir. 2014) (concluding that comments did not raise issue with
                ``sufficient clarity'' to alert the Federal Highway Administration to
                concerns); Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969,
                974 (8th Cir. 2011) (concluding that comments were insufficient to give
                the Forest Service an opportunity to consider claim and that judicial
                review was therefore improper); Exxon Mobil Corp. v. U.S. EPA, 217 F.3d
                1246, 1249 (9th Cir. 2000) (arguments not raised in comments are
                waived); Ass'n of Mfrs. v. Dep't of the Interior, 134 F.3d 1095, 1111
                (D.C. Cir. 1998) (failure to raise argument in rulemaking constitutes
                failure to exhaust administrative remedies). Finally, CEQ proposed to
                require that the public raise any objections to the submitted
                alternatives, information, and analyses section within 30 days of the
                notice of availability of the final EIS.
                 The final rule includes paragraph (b)(3) with some modifications.
                The final rule requires State, Tribal, and local governments and other
                public commenters to submit comments within the comment periods
                provided under Sec. 1503.1 and that comments be as specific as
                possible under Sec. 1503.3. The rule specifies that comments or
                objections of any kind not submitted ``shall be forfeited as
                unexhausted'' to clarify any ambiguity about forfeiture and exhaustion.
                CEQ received comments opposing the proposal to require the public to
                raise objections to the submitted alternatives, information, and
                analyses section within 30 days of the notice of availability of the
                final EIS. The final rule does not include the proposed mandatory 30-
                day comment period. However, Sec. 1506.11 retains from the 1978
                regulations the 30-day waiting period prior to issuance of the ROD,
                subject to limited exceptions, and under Sec. 1503.1(b), agencies may
                solicit comments on the final EIS if they so choose. Each commenter
                should put its own comments into the record as soon as practicable to
                ensure that the agency has adequate time to consider the commenter's
                input as part of the agency's decision-making process. Finally, to
                ensure commenters timely identify issues, CEQ expresses its intention
                that commenters rely on their own comments and not those submitted by
                other commenters in any subsequent litigation, except where otherwise
                provided by law.
                 CEQ also proposed in paragraph (b)(4) of Sec. 1500.3 to require
                that the agency decision maker certify in the ROD that the agency has
                considered all of the alternatives, information, and analyses submitted
                by public commenters based on the summary in the EIS. CEQ includes this
                section in the final rule with some modifications. The final rule
                requires the decision maker, informed by the final EIS (including the
                public comments, summary thereof, and responses thereto) and other
                relevant material in the record, certify that she or he considered the
                alternatives, information, and analyses submitted by States, Tribes,
                and local governments and other public commenters. Relevant material
                includes both the draft and final EIS as well as any supporting
                materials incorporated by reference or appended to the document. The
                final rule does not specify the decision maker ``for the lead agency''
                to account for multiple decision makers, consistent with the OFD
                policy.
                 CEQ proposed to add a new paragraph (c), ``Review of NEPA
                compliance,'' to Sec. 1500.3 to reflect the development of case law
                since the promulgation of the CEQ regulations. Specifically, CEQ
                proposed to revise the sentence regarding timing of judicial review to
                strike references to the filing of an EIS or FONSI and replace them
                with the issuance of a signed ROD or the taking of another final agency
                action. CEQ includes this change in the final rule. Judicial review of
                NEPA compliance for agency actions can occur only under the APA, which
                requires finality. 5 U.S.C. 704. A private right of action to enforce
                NEPA, which is lacking, would be required to review non-final agency
                action. In addition, non-final agency action may not be fit for
                judicial review as a matter of prudential standing. See Abbott Labs v.
                Gardner, 387 U.S. 136, 148-49 (1967). Under the APA, judicial review
                does not occur until an agency has taken final agency action. Bennett
                v. Spear, 520 U.S. 154, 177-78 (1997) (``[T]he action must mark the
                `consummation' of the agency's decision[-]making process--it must not
                be of a merely tentative or interlocutory nature. And second, the
                action must be one by which `rights or obligations have been
                determined' or from which `legal consequences will flow''' (citations
                omitted)). Because NEPA's procedural requirements apply to proposals
                for agency action, judicial review should not occur until the agency
                has completed its decision-making process, and there are ``direct and
                appreciable legal consequences.'' Id. at 178. Final agency action for
                judicial review purposes is not necessarily when the agency publishes
                the final EIS, issues a FONSI, or makes the determination to
                categorically exclude an action.
                 CEQ also proposed in paragraph (c) to clarify that any allegation
                of noncompliance be resolved as expeditiously as possible, and that
                agencies may structure their decision making to allow private parties
                to seek agency stays or provide for efficient mechanisms, such as
                imposition of bonds, for seeking, granting, and imposing conditions on
                stays. The final rule clarifies that it is CEQ's intention that any
                allegation of noncompliance be resolved as expeditiously as possible.
                The final rule also clarifies that agencies may structure their
                procedures consistent with their organic statutes, and as part of
                implementing the exhaustion provisions in paragraph (b) of Sec.
                1500.3, to include an appropriate bond or other security requirement to
                protect against harms associated with delays.
                 Consistent with their statutory authorities, agencies may impose,
                as appropriate, bond and security requirements or other conditions as
                part of their administrative processes, including administrative
                appeals, and a prerequisite to staying their decisions, as courts do
                under rule 18 of the Federal Rules of Appellate Procedure and other
                rules.\73\ See, e.g., Fed. R. App. P. 18(b); Fed. R. App. P.
                8(a)(2)(E); Fed. R. Civ. P. 65(c); Fed. R. Civ. P. 62(b); Fed. R. Civ.
                P. 62(d). CEQ notes that there is no ``NEPA exception'' that exempts
                litigants bringing NEPA claims from otherwise applicable bond or
                security requirements or other appropriate conditions, and that some
                courts have imposed substantial bond requirements in NEPA cases. See,
                e.g., Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1125-26 (9th
                Cir. 2005) (concluding that district court's imposition of a $50,000
                bond was appropriate and supported by the record); Stockslager v.
                Carroll Elec. Co-op Corp., 528 F.2d 949 (8th Cir. 1976) (concluding
                that district court's imposition of a $10,000 bond was appropriate).
                ---------------------------------------------------------------------------
                 \73\ See, e.g., 26 CFR 2.6 (Bureau of Indian Affairs' regulatory
                provision that allows a person that believes he or she may suffer a
                measurable and substantial financial loss as a result of the delay
                caused by an appeal to request that the official require the posting
                of a reasonable bond).
                ---------------------------------------------------------------------------
                 CEQ proposed to add a new paragraph (d), ``Remedies,'' to Sec.
                1500.3. CEQ proposed to state explicitly that harm from the failure to
                comply with NEPA can be remedied by compliance with NEPA's procedural
                requirements, and that CEQ's regulations do not create a cause of
                action for violation of NEPA. The statute does not create any cause of
                action, and agencies may not create private rights of action by
                regulation; ``[l]ike substantive [F]ederal law itself, private rights
                of action to enforce [F]ederal law must be created by Congress.''
                Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross
                [[Page 43319]]
                & Co. v. Redington, 442 U.S. 560, 578 (1979)). This is particularly
                relevant where, as here, the counterparty in any action to enforce NEPA
                would be a Federal officer or agency. See San Carlos Apache Tribe v.
                United States, 417 F.3d 1091, 1096-97 (9th Cir. 2005) (``[C]reating a
                direct private action against the federal government makes little sense
                in light of the administrative review scheme set out in the APA.'').
                 The CEQ regulations create no presumption that violation of NEPA is
                a basis for injunctive relief or for a finding of irreparable harm. As
                the Supreme Court has held, the irreparable harm requirement, as a
                prerequisite to the issuance of preliminary or permanent injunctive
                relief, is neither eliminated nor diminished in NEPA cases. A showing
                of a NEPA violation alone does not warrant injunctive relief and does
                not satisfy the irreparable harm requirement. See Monsanto Co. v.
                Geertson Seed Farms, 561 U.S. 139, 157 (2010) (``[T]he statements
                quoted [from prior Ninth Circuit cases] appear to presume that an
                injunction is the proper remedy for a NEPA violation except in unusual
                circumstances. No such thumb on the scales is warranted.''); Winter,
                555 U.S. at 21-22, 31-33; see also Amoco Prod. Co. v. Vill. of Gambell,
                480 U.S. 531, 544-45 (1987) (rejecting proposition that irreparable
                damage is presumed when an agency fails to evaluate thoroughly the
                environmental impact of a proposed action). Moreover, a showing of
                irreparable harm in a NEPA case does not entitle a litigant to an
                injunction or a stay. See Winter, 555 U.S. at 20 (``A plaintiff seeking
                a preliminary injunction must establish that he is likely to succeed on
                the merits, that he is likely to suffer irreparable harm in the absence
                of preliminary relief, that the balance of equities tips in his favor,
                and that an injunction is in the public interest.'') (emphasis added);
                Geertson Seed Farms, 561 U.S. at 157 (``The traditional four-factor
                test applies when a plaintiff seeks a permanent injunction to remedy a
                NEPA violation . . . . An injunction should issue only if the
                traditional four-factor test is satisfied.'').
                 Consistent with the Supreme Court's analysis in Geertson Seed
                Farms, agencies (as well as applicants) should give practical
                consideration to measures that might serve to anticipate, reduce, or
                eliminate possible adverse effects from a project. To the extent such
                measures are incorporated into an agency's ROD, they may provide
                grounds upon which a court, presented with an alleged violation of
                NEPA, might reasonably conclude that injunctive relief is not warranted
                because the measures prevent any irreparable harm from occurring. See
                Sec. 1505.3. For example, regular inspections or requirements that
                applicants obtain third-party insurance, for example, might constitute
                such measures in certain circumstances. Inspections can reveal defects
                before they cause harm. Third-party insurers, because of their exposure
                to risk, have an economic incentive to conduct thorough inspections,
                facilitating discovery of defects. Such measures would be relevant to
                whether a valid claim of irreparable harm has been established.
                 CEQ also proposed to state that any actions to review, enjoin,
                vacate, stay, or alter an agency decision on the basis of an alleged
                NEPA violation be raised as soon as practicable to avoid or minimize
                any costs to agencies, applicants, or any affected third parties. As
                reflected in comments received in response to the ANPRM, delays have
                the potential to result in substantial costs. CEQ also proposed to
                replace the language providing that trivial violations should not give
                rise to an independent cause of action with language that states that
                minor, non-substantive errors that have no effect on agency decision
                making shall be considered harmless and shall not invalidate an agency
                action. Invalidating actions due to minor errors does not advance the
                goals of the statute and adds delays and costs. CEQ includes paragraph
                (d) in the final rule with a change to clarify that it is CEQ's
                intention that the regulations create no presumption that violation of
                NEPA is a basis for injunctive relief or for a finding of irreparable
                harm. As noted above, NEPA is a procedural statute and any harm is thus
                reparable by providing the necessary environmental documentation in
                accordance with the Act and these regulations. CEQ also adds ``vacate,
                or otherwise'' to the types of actions that may alter a decision to
                address situations where there may be a nationwide or other vacatur and
                ``after final agency action'' to clarify when the actions should be
                raised.
                 Finally, CEQ proposed to add a new paragraph (e), ``Severability,''
                to Sec. 1500.3 to address the possibility that this rule, or portions
                of this rule, may be challenged in litigation. CEQ finalizes this
                paragraph as proposed, correcting the cross reference. As stated in the
                NPRM, it is CEQ's intention that the individual sections of this rule
                be severable from each other, and that if a court stays or invalidates
                any sections or portions of the regulations, this will not affect the
                validity of the remainder of the sections, which will continue to be
                operative.
                4. Reducing Paperwork and Delay (Sec. Sec. 1500.4 and 1500.5)
                 In the NPRM, CEQ proposed to reorder the paragraphs in Sec.
                1500.4, ``Reducing paperwork,'' and Sec. 1500.5, ``Reducing delay,''
                for a more logical ordering, consistent with the three levels of NEPA
                review. CEQ also proposed edits to Sec. Sec. 1500.4 and 1500.5 for
                consistency with proposed edits to the cross-referenced sections. CEQ
                makes these proposed changes in the final rule. Additionally, the final
                rule revises the language in paragraphs (a) and (b) of Sec. Sec.
                1500.4 and 1500.5 to make the references to CEs and FONSIs consistent
                with the language in Sec. Sec. 1501.4(a) and 1501.6(a), respectively.
                CEQ also proposed conforming edits to Sec. 1500.4(c) to broaden the
                paragraph to include EAs by changing ``environmental impact
                statements'' to ``environmental documents'' and changing ``setting'' to
                ``meeting'' since page limits would be required for both EAs and EISs.
                CEQ makes these changes in the final rule and corrects the cross-
                reference. CEQ revises paragraph (h) of Sec. 1500.4 to add ``e.g.'' to
                the citations to clarify that these are just examples of the useful
                portions of EISs and to correct the cross-reference to background
                material from Sec. 1502.16 to Sec. 1502.1. CEQ revises the citations
                in paragraph (k) of Sec. 1500.4 to make them sequential. Finally, CEQ
                revises paragraph (d) of Sec. 1500.5 for clarity.
                5. Agency Authority (Sec. 1500.6)
                 CEQ proposed to add a savings clause to Sec. 1500.6, ``Agency
                authority,'' to clarify that the CEQ regulations do not limit an
                agency's other authorities or legal responsibilities. This
                clarification is consistent with section 104 of NEPA (42 U.S.C. 4334),
                section 2(g) of E.O. 11514, and the 1978 regulations, but acknowledges
                the possibility of different statutory authorities that may set forth
                different requirements, such as timeframes. In the final rule, CEQ
                makes the proposed changes and clarifies further that agencies
                interpret the provisions of the Act as a mandate to view the agency's
                policies and missions in the light of the Act's national environmental
                objectives, to the extent NEPA is consistent with the agency's existing
                authority. This is consistent with E.O. 11514, which provides that
                Federal agencies shall ``[i]n carrying out their responsibilities under
                the Act and this Order, comply with the [CEQ regulations] except where
                such compliance would be inconsistent with statutory requirements.''
                E.O. 11514, as amended by E.O. 11991, sec. 2(g). CEQ also proposed to
                clarify that compliance
                [[Page 43320]]
                with NEPA means the Act ``as interpreted'' by the CEQ regulations. CEQ
                makes this change in the final rule in Sec. 1500.6, as well as in
                Sec. Sec. 1502.2(d) and 1502.9(b), to clarify that agencies should
                implement the statute through the framework established in these
                regulations. Finally, CEQ revises the sentence explaining the meaning
                of the phrase ``to the fullest extent possible'' in section 102, to
                replace ``unless existing law applicable to the agency's operations
                expressly prohibits or makes compliance impossible'' with ``consistent
                with Sec. 1501.1.'' As discussed in section II.C.1, Sec. 1501.1 sets
                forth threshold considerations for assessing whether NEPA applies or is
                otherwise fulfilled, including considerations related to other statutes
                with which agencies must comply.
                C. Revisions to NEPA and Agency Planning (Part 1501)
                 CEQ proposed significant changes to modernize and clarify part
                1501. CEQ proposed to replace the current 40 CFR 1501.1, ``Purpose,''
                because it is unnecessary and duplicative, with a new section, ``NEPA
                threshold applicability analysis,'' to address threshold considerations
                of NEPA applicability. CEQ proposed to add additional sections to
                address the level of NEPA review and CEs. CEQ further proposed to
                consolidate and clarify provisions on EAs and FONSIs, and relocate to
                part 1501 from part 1502 the provisions on tiering and incorporation by
                reference. CEQ also proposed to set presumptive time limits for the
                completion of NEPA reviews, and clarify the roles of lead and
                cooperating agencies to further the OFD policy and encourage more
                efficient and timely NEPA reviews. CEQ makes many of these changes in
                the final rule with modifications as discussed further in this section.
                1. NEPA Thresholds (Sec. 1501.1)
                 Since the enactment of NEPA, courts have examined the applicability
                of NEPA to proposed agency activities and decisions, based on a variety
                of considerations. Courts have found that NEPA is inapplicable when an
                agency's statutory obligations clearly or fundamentally conflict with
                NEPA compliance; when Congress has established requirements under
                another statute that displace NEPA compliance in some fashion; when an
                agency is carrying out a non-discretionary duty or obligation (in whole
                or in part); or when environmental review and public participation
                procedures under another statute satisfy the requirements (i.e., are
                functionally equivalent) of NEPA.
                 CEQ proposed a new Sec. 1501.1 to provide a series of
                considerations to assist agencies in a threshold analysis for
                determining whether NEPA applies to a proposed activity or whether NEPA
                is satisfied through another mechanism. CEQ proposed to title this
                section ``NEPA threshold applicability analysis'' in the NPRM. CEQ
                includes this provision in the final rule at Sec. 1501.1, ``NEPA
                thresholds.'' This section recognizes that the application of NEPA by
                Congress and the courts has evolved over the last four decades in light
                of numerous other statutory requirements implemented by Federal
                agencies. CEQ reorders these considerations in the final rule and adds
                a new consideration to paragraph (a)(1)--whether another statute
                expressly exempts a proposed activity or decision from NEPA. See, e.g.,
                15 U.S.C. 793(c)(1) (exempting Environmental Protection Agency (EPA)
                actions under the Clean Air Act); 33 U.S.C. 1371(c)(1) (exempting
                certain EPA actions under the Clean Water Act); 42 U.S.C. 5159
                (exempting certain actions taken or assistance provided within a
                Presidentially declared emergency or disaster area); and 16 U.S.C.
                3636(a) (exempting regulation of Pacific salmon fishing).
                 The second consideration in paragraph (a)(2) is whether compliance
                with NEPA would clearly and fundamentally conflict with the
                requirements of another statute. See, e.g., Flint Ridge Dev. Co. v.
                Scenic Rivers Ass'n, 426 U.S. 776, 791 (1976) (concluding that the
                Secretary of Housing and Urban Development could not comply with NEPA's
                EIS requirement because it conflicted with requirements of the
                Interstate Land Sales Full Disclosure Act). The third consideration in
                paragraph (a)(3) is whether compliance with NEPA would be inconsistent
                with congressional intent expressed in another statute. See, e.g.,
                Douglas County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995) (holding
                that NEPA was displaced by the Endangered Species Act's procedural
                requirements for designating critical habitat); and Merrell v. Thomas,
                807 F.2d 776, 778-80 (9th Cir. 1986) (holding that NEPA did not apply
                to the EPA's registration of pesticides under the Federal Insecticide,
                Fungicide, and Rodenticide Act (FIFRA)).
                 The fourth and fifth considerations in paragraphs (a)(4) and (5)
                are whether the proposed activity or decision meets the definition of a
                major Federal action generally and whether the proposed activity or
                decision does not meet the definition because it is non-discretionary
                such that the agency lacks authority to consider environmental effects
                as part of its decision-making process. See, e.g., Pub. Citizen, 541
                U.S. at 768-70 (concluding that, because the Federal Motor Carrier
                Safety Administration lacked discretion to prevent the entry of Mexican
                trucks into the United States, the agency did not need to consider
                under NEPA the environmental effects of Mexican trucks' cross-border
                operations that the President authorized); Nat'l Wildlife Fed'n v.
                Sec'y of the U.S. Dep't. of Transp., 2020 U.S. App. LEXIS 17723, at
                *15-18 (6th Cir. June 5, 2010) (applying Public Citizen and finding
                NEPA not applicable as EPA lacked discretion to reject Clean Water Act
                oil spill response plans that satisfied enumerated criteria); Citizens
                Against Rails-To-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1152-54
                (D.C. Cir. 2001) (concluding that because the Surface Transportation
                Board lacked significant discretion regarding issuance of a certificate
                of interim trail use under the National Trails System Act, NEPA was not
                applicable); South Dakota v. Andrus, 614 F.2d 1190, 1193-95 (8th Cir.
                1980) (concluding that the granting of a mineral patent for a mining
                claim was a non-discretionary, ministerial act and non-discretionary
                acts should be exempt from NEPA). Consistent with Public Citizen, 541
                U.S. at 768-70, NEPA applies to the portion of an agency decision that
                is discretionary. In Public Citizen, the Supreme Court considered
                whether the Federal Motor Carrier Safety Administration was required to
                consider the effects of a non-discretionary action in its NEPA document
                and concluded that it was not required to do so because it had no
                authority to prevent the cross-border entry of Mexican motor carriers,
                which was the result of presidential action. Id.
                 Finally, the sixth consideration in paragraph (a)(6) is whether the
                proposed action is an action for which another statute's requirements
                serve the function of agency compliance with NEPA. See, e.g., Envtl.
                Def. Fund, Inc. v. U.S. EPA, 489 F.2d 1247, 1256-57 (D.C. Cir. 1973)
                (concluding that the substantive and procedural standards of FIFRA were
                functionally equivalent to NEPA and therefore formal compliance was not
                necessary); W. Neb. Res. Council v. U.S. EPA, 943 F.2d 867, 871-72 (8th
                Cir. 1991) (finding that the procedures of the Safe Drinking Water Act
                were functionally equivalent to those required by NEPA); Cellular Phone
                Taskforce v. Fed. Commc'ns Comm'n, 205 F.3d 82, 94-95 (2d Cir. 2000)
                (concluding that the procedures followed by the Federal Communications
                Commission were
                [[Page 43321]]
                functionally compliant with EA and FONSI requirements under NEPA).
                Paragraph (b) of Sec. 1501.1 clarifies that agencies can make this
                determination in their agency NEPA procedures in accordance with Sec.
                1507.3(d) or on a case-by-case basis. The final rule adds a new
                paragraph (b)(1) to state that agencies may request assistance from CEQ
                in making a case-by-case determination under this section, and a new
                paragraph (b)(2) to require agencies to consult with other Federal
                agencies for their concurrence when making a determination where more
                than one Federal agency administers the statute (e.g., the Endangered
                Species Act (ESA)). Agencies may document these consultations, as
                appropriate. Agencies will only apply the thresholds in this section
                after consideration on a case-by-case basis, or after agencies have
                determined whether and how to incorporate them into their own agency
                NEPA procedures.
                 Some agencies already include information related to the
                applicability of NEPA to their actions in their agency NEPA procedures.
                For example, EPA's NEPA procedures include an applicability provision
                that explains which EPA actions NEPA does not apply to, including
                actions under the Clean Air Act and certain actions under the Clean
                Water Act. See 40 CFR 6.101. The final rule codifies the agency
                practice of including this information in agency NEPA procedures but
                also provides agencies' flexibility to make case-by-case determinations
                as needed.
                2. Apply NEPA Early in the Process (Sec. 1501.2)
                 CEQ proposed to amend Sec. 1501.2, ``Apply NEPA early in the
                process,'' designating the introductory paragraph as paragraph (a) and
                changing ``shall'' to ``should'' and ``possible'' to ``reasonable.''
                CEQ makes these changes in the final rule. Agencies need the discretion
                to structure the timing of their NEPA processes to align with their
                decision-making processes, consistent with their statutory authorities.
                Agencies also need flexibility to determine the appropriate time to
                start the NEPA process, based on the context of the particular proposed
                action and governed by the rule of reason, so that the NEPA analysis
                meaningfully informs the agency's decision. The appropriate time to
                begin the NEPA process is dependent on when the agency has sufficient
                information, and on how it can most effectively integrate the NEPA
                review into the agency's decision-making process. Further, some courts
                have viewed this provision as a legally enforceable standard, rather
                than an opportunity for agencies to integrate NEPA into their decision-
                making programs and processes. See, e.g., N.M. ex rel. Richardson v.
                Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009); Metcalf v. Daley,
                214 F.3d 1135 (9th Cir. 2000). As discussed above, only final agency
                action is subject to judicial review under the APA. CEQ's view is that
                agencies should have discretion with respect to timing, consistent with
                the regulatory provisions in Sec. Sec. 1501.11 and 1502.4 for
                deferring NEPA analysis to appropriate points in the decision-making
                process. As noted in the NPRM, this change is consistent with CEQ
                guidance that agencies should ``concentrate on relevant environmental
                analysis'' in their EISs rather than ``produc[ing] an encyclopedia of
                all applicable information.'' Timely Environmental Reviews Guidance,
                supra note 29; see also Sec. Sec. 1500.4(b), 1502.2(a). Therefore, CEQ
                makes these changes to clarify that agencies have discretion to
                structure their NEPA processes in accordance with the rule of reason.
                CEQ also proposed to change ``possible'' to ``reasonable'' in paragraph
                (b)(4)(iii) and ``shall'' to ``should'' in the introductory paragraph
                of Sec. 1502.5 for consistency with the changes to Sec. 1501.2. CEQ
                makes these changes in the final rule.
                 CEQ also proposed to change ``planning and decisions reflect
                environmental values'' to ``agencies consider environmental impacts in
                their planning and decisions'' in paragraph (a). CEQ makes this change
                in the final rule because ``consider environmental impacts'' provides
                more explicit direction to agencies and is more consistent with the Act
                and the CEQ regulations.
                 CEQ proposed to redesignate the remaining paragraphs in Sec.
                1501.2 to list out other general requirements for agencies. In
                paragraph (b)(1), the final rule removes the direct quote of NEPA
                consistent with the Federal Register's requirements for the Code of
                Federal Regualtions. In paragraph (b)(2), CEQ proposed to clarify that
                agencies should consider economic and technical analyses along with
                environmental effects. This change is consistent with section 102(2)(B)
                of NEPA, which directs agencies, in consultation with CEQ, to identify
                and develop methods and procedures to ensure environmental amenities
                and values are considered along with economic and technical
                considerations in decision making. CEQ makes this change in the final
                rule and revises the second sentence in this paragraph to qualify that
                agencies must review and publish environmental documents and
                appropriate analyses at the same time as other planning documents
                ``whenever practicable.'' CEQ recognizes that it is not always
                practicable to publish such documents at the same time because it can
                delay publication of one or the other. Finally, CEQ proposed to amend
                paragraph (b)(4)(ii) to change ``agencies'' to ``governments''
                consistent with and in support of government-to-government consultation
                pursuant to E.O. 13175 \74\ and E.O. 13132, ``Federalism.'' \75\ CEQ
                makes these changes in the final rule.
                ---------------------------------------------------------------------------
                 \74\ Supra note 69.
                 \75\ 64 FR 43255 (Aug. 10, 1999).
                ---------------------------------------------------------------------------
                3. Determine the Appropriate Level of NEPA Review (Sec. 1501.3)
                 As discussed in the NPRM, NEPA requires a ``detailed statement''
                for ``major Federal actions significantly affecting the quality of the
                human environment.'' 42 U.S.C. 4332(2)(C). To determine whether an
                action requires such a detailed statement, the 1978 regulations
                provided three levels of review for Federal agencies to assess
                proposals for agency action. Specifically, the CEQ regulations allow
                agencies to review expeditiously those actions that normally do not
                have significant effects by using CEs or, for actions that are not
                likely to have significant effects, by preparing EAs. By using CEs and
                EAs whenever appropriate, agencies then can focus their limited
                resources on those actions that are likely to have significant effects
                and require the ``detailed statement,'' or EIS, required by NEPA.
                 While the 1978 CEQ regulations provided for these three levels of
                NEPA review, they do not clearly set out the decisional framework by
                which agencies should assess their proposed actions and select the
                appropriate level of review. To provide this direction and clarity, the
                NPRM proposed to add a new section at Sec. 1501.3, ``Determine the
                appropriate level of NEPA review.'' The proposal described the three
                levels of NEPA review and the basis upon which an agency makes a
                determination regarding the appropriate level of review for a proposed
                action. CEQ includes the proposal in the final rule at paragraph (a) of
                Sec. 1501.3.
                 CEQ proposed to address the consideration of significance in
                paragraph (b) since it is central to determining the appropriate level
                of review. CEQ proposed to move the language from 40 CFR 1508.27,
                ``Significantly,'' since it did not contain a definition, but rather
                set forth factors for considering whether an effect is significant, to
                paragraph (b). CEQ also proposed to eliminate most of the
                [[Page 43322]]
                factors in favor of a simpler, more flexible approach for agencies to
                assess significance. Specifically, CEQ proposed to change ``context''
                to ``potentially affected environment'' and ``intensity'' to ``degree''
                to provide greater clarity as to what agencies should consider in
                assessing potential significant effects. The phrase ``potentially
                affected environment'' relates more closely to physical, ecological,
                and socio-economic aspects than ``context.'' The final rule reorganizes
                several factors formerly categorized under ``intensity'' to clarify
                further this distinction. The final rule uses the term ``degree''
                because some effects may not necessarily be of an intense or severe
                nature, but nonetheless should be considered when determining
                significance. While 40 CFR 1508.27 used several different words to
                explain what was meant by ``intensity,'' it also used ``degree''
                numerous times. Therefore, the consistent use of ``degree'' throughout
                is clearer. In the final rule, CEQ includes these proposed changes in
                paragraph (b) with some additional revisions in response to comments.
                CEQ clarifies in paragraph (b)(1) that agencies ``should'' (rather than
                ``may'') consider the affected area specific to the proposed action,
                consistent with the construction of paragraph (b)(2), and the affected
                area's resources. The final rule includes one example, listed species
                and designated critical habitat under the Endangered Species Act, but
                this could include any type of resource such as historic, cultural, or
                park lands. The final rule also modifies the example of significance
                varying with the setting, because there was some misunderstanding of
                the proposed change from ``world'' to ``Nation.'' This sentence merely
                serves as an example. Consistent with the NPRM, paragraph (b)(2)
                addresses considerations of the degree of effects. CEQ moves short- and
                long-term effects from ``affected environment'' in (b)(1) to ``degree''
                in paragraph (b)(2)(i). CEQ proposed to exclude consideration of
                controversy (40 CFR 1508.27(b)(4)) because the extent to which effects
                may be controversial is subjective and is not dispositive of effects'
                significance. Further, courts have interpreted controversy to mean
                scientific controversy, which the final rule addresses within the
                definition of effects, as the strength of the science informs whether
                an effect is reasonably foreseeable. The controversial nature of a
                project is not relevant to assessing its significance.
                 Additionally, CEQ proposed to remove the reference in 40 CFR
                1508.27(b)(7) to ``[s]ignificance cannot be avoided by terming an
                action temporary or by breaking it down into small component parts''
                because this is addressed in the criteria for scope in Sec. Sec.
                1501.9(e) and 1502.4(a), which would provide that agencies evaluate in
                a single EIS proposals or parts of proposals that are related closely
                enough to be, in effect, a single course of action. Commenters noted
                that Sec. Sec. 1501.9 and 1502.4 are applicable only to EISs.
                Therefore, in the final rule CEQ includes a sentence in paragraph (b)
                stating that agencies should consider connected actions when
                determining the significance of the effects of the proposed action.
                4. Categorical Exclusions (Sec. 1501.4)
                 Under the 1978 regulations, agencies could categorically exclude
                actions from detailed review where the agency has found in its agency
                NEPA procedures that the action normally would not have significant
                effects. Over the past 4 decades, Federal agencies have developed more
                than 2,000 CEs.\76\ CEQ estimates that each year, Federal agencies
                apply CEs to approximately 100,000 Federal agency actions that
                typically require little or no documentation.\77\ While CEs are the
                most commonly used level of NEPA review, CEQ has addressed CE
                development and implementation in only one comprehensive guidance
                document, see CE Guidance, supra note 29, and the 1978 regulations did
                not address CEs in detail.
                ---------------------------------------------------------------------------
                 \76\ See Council on Environmental Quality, List of Federal
                Agency Categorical Exclusions (June 18, 2020), https://ceq.doe.gov/nepa-practice/categorical-exclusions.html.
                 \77\ See, e.g., Council on Environmental Quality, The Eleventh
                and Final Report on the National Environmental Policy Act Status and
                Progress for American Recovery and Reinvestment Act of 2009
                Activities and Projects (Nov. 2, 2011), https://ceq.doe.gov/docs/ceq-reports/nov2011/CEQ_ARRA_NEPA_Report_Nov_2011.pdf.
                ---------------------------------------------------------------------------
                 In response to the ANPRM, many commenters requested that CEQ update
                the NEPA regulations to provide more detailed direction on the
                application of CEs. To provide greater clarity, CEQ proposed to add a
                new section on CEs in proposed Sec. 1501.4, ``Categorical
                exclusions,'' to address in more detail the process by which an agency
                considers whether a proposed action is categorically excluded under
                NEPA.
                 Proposed paragraph (a) stated that agencies identify CEs in their
                NEPA procedures. CEQ adds this paragraph to the final rule, reiterating
                the requirement in Sec. 1507.3(e)(2)(ii) that agencies establish CEs
                in their agency NEPA procedures. The NPRM proposed in paragraph (b) to
                set forth the requirement to consider extraordinary circumstances once
                an agency determines that a CE covers a proposed action, consistent
                with the current requirement in 40 CFR 1508.4. CEQ includes this
                provision in the final rule, changing the language from passive to
                active voice. CEQ proposed in paragraph (b)(1) to provide that, when
                extraordinary circumstances are present, agencies may consider whether
                mitigating circumstances, such as the design of the proposed action to
                avoid effects that create extraordinary circumstances, are sufficient
                to allow the proposed action to be categorically excluded. CEQ includes
                this paragraph in the final rule, but revises it to address confusion
                over whether CEQ is creating a ``mitigated CE.'' In the final rule,
                paragraph (b)(1) provides that an agency can categorically exclude a
                proposed action when an environmental resource or condition identified
                as a potential extraordinary circumstance is present if the agency
                determines that there are ``circumstances that lessen the impacts'' or
                other conditions sufficient to avoid significant effects. This
                paragraph clarifies that agencies' extraordinary circumstances criteria
                are not intended to necessarily preclude the application of a CE merely
                because a listed factor may be present or implicated. Courts have
                rejected a ``mere presence'' test for CEs. Sierra Club v. U.S. Forest
                Serv., 828 F.3d 402 (6th Cir. 2016); Sierra Club v. Bosworth, 510 F.3d
                1016 (9th Cir. 2007); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th
                Cir. 2006); Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
                F.3d 1443, 1450 (9th Cir. 1996); cf. Rhodes v. Johnson, 153 F.3d 785
                (7th Cir. 1998). Instead, the agency may consider in light of the
                extraordinary circumstances criteria, whether the proposed action would
                take place in such a way that it would not have significant effects, or
                whether the agency could modify the proposed action to avoid the
                extraordinary circumstances so that the action remains eligible for
                categorical exclusion. While this reflects current practice for some
                agencies,\78\ this revision would assist agencies as they consider
                whether to categorically exclude an action that would otherwise be
                considered in an EA and FONSI.
                ---------------------------------------------------------------------------
                 \78\ See, e.g., Forest Service categorical exclusions, 36 CFR
                220.6(b)(2); surface transportation categorical exclusions, 23 CFR
                771.116-771.118.
                ---------------------------------------------------------------------------
                 Finally, CEQ proposed paragraph (b)(2) to address agencies'
                obligation to prepare an EA or EIS, as appropriate, if the agency
                cannot categorically exclude
                [[Page 43323]]
                a proposed action. CEQ includes this provision in the final rule
                revising the language to active voice and making it consistent with the
                format of paragraph (b).
                 CEQ invited comment on the proposed revisions and asked whether it
                should address any other aspects of CEs in its regulations. CEQ also
                invited comment on whether it should establish government-wide CEs in
                its regulations to address routine administrative activities, for
                example, internal orders or directives regarding agency operations,
                procurement of office supplies and travel, and rulemakings to establish
                administrative processes such as those established under the Freedom of
                Information Act or Privacy Act. After considering the comments, as
                discussed in the Final Rule Response to Comments, CEQ is not including
                any additional provisions on CEs in the final rule.
                5. Environmental Assessments (Sec. 1501.5)
                 Under the 1978 regulations, when an agency has not categorically
                excluded a proposed action, the agency can prepare an EA to document
                its effects analysis. If the analysis in the EA demonstrates that the
                action's effects would not be significant, the agency documents its
                reasoning in a FONSI, which completes the NEPA process; otherwise, the
                agency uses the EA to help prepare an EIS. CEQ estimates that Federal
                agencies prepare over 10,000 EAs each year.\79\
                ---------------------------------------------------------------------------
                 \79\ See, e.g., Council on Environmental Quality, Fourth Report
                on Cooperating Agencies in Implementing the Procedural Requirements
                of the National Environmental Policy Act, Attachment A (Oct. 4,
                2016), https://ceq.doe.gov/docs/ceq-reports/Attachment-A-Fourth-Cooperating-Agency-Report_Oct2016.pdf.
                ---------------------------------------------------------------------------
                 CEQ proposed to consolidate the requirements for EAs that are
                scattered throughout the 1978 regulations into a new Sec. 1501.5,
                ``Environmental assessments.'' CEQ proposed to revise paragraph (a) to
                state when agencies are required to prepare EAs. CEQ proposed minor
                clarifying edits to paragraph (b), which states that agencies may
                prepare an EA to assist in agency planning and decision making. The
                NPRM proposed to move the operative language regarding the requirements
                for an EA from the definition of EA in 40 CFR 1508.9 to paragraph (c).
                CEQ makes these proposed changes in the final rule.
                 Under the final rule, the format for an EA is flexible and
                responsive to agency decision-making needs and the circumstances of the
                particular proposal for agency action. Requirements for documenting the
                proposed action and alternatives in an EA continue to be more limited
                than EIS requirements. An agency must briefly describe the need for the
                proposed action by describing the existing conditions, projected future
                conditions, and statutory obligations and authorities that may relate
                to the proposed agency action with cross-references to supporting
                documents. The final rule continues to require agencies to describe
                briefly the proposed action and any alternatives it is considering that
                would meet the need of the proposed agency action. For actions to
                protect or restore the environment, without unresolved conflicts
                concerning alternative uses of available resources, CEQ expects
                agencies to examine a narrower range of alternatives to the proposed
                action. When the action may have significant impacts, the agency should
                consider reasonable alternatives that would avoid those impacts or
                otherwise mitigate those impacts to less than significant levels.
                 An agency does not need to include a detailed discussion of each
                alternative in an EA, nor does it need to include any detailed
                discussion of alternatives that it eliminated from study. While
                agencies have discretion to include more information in their EAs than
                is required to determine whether to prepare an EIS or a FONSI, they
                should carefully consider their reasons and have a clear rationale for
                doing so. Agencies should focus on analyzing material effects and
                alternatives, rather than marginal details that may unnecessarily delay
                the environmental review process.
                 Under the final rule, an agency must describe the environmental
                impacts of its proposed action and alternatives, providing enough
                information to support a decision to prepare either a FONSI or an EIS.
                The EA should focus on whether the proposed action (including
                mitigation) would ``significantly'' affect the quality of the human
                environment and tailor the length of the discussion to the relevant
                effects. The agency may contrast the impacts of the proposed action and
                alternatives with the current and expected future conditions of the
                affected environment in the absence of the action, which constitutes
                consideration of a no-action alternative.
                 Under the final rule, agencies should continue to list persons,
                relevant agencies, and applicants involved in preparing the EA to
                document agency compliance with the requirement to involve the public
                in preparing EAs to the extent practicable, consistent with paragraph
                (e). This may include incorporation by reference of records related to
                compliance with other environmental laws such as the National Historic
                Preservation Act, Clean Water Act, Endangered Species Act, or Clean Air
                Act.
                 CEQ adds a new paragraph (d) to the final rule to move the language
                from 40 CFR 1502.5(b) regarding when to begin preparing an EA that is
                required for an application to the agency.\80\ Agencies may specify in
                their NEPA procedures when an application is complete such that it can
                commence the NEPA process. While the NPRM did not propose this change,
                the move is consistent with CEQ's proposal to consolidate EA
                requirements in Sec. 1501.5.
                ---------------------------------------------------------------------------
                 \80\ CEQ also retains the statement in Sec. 1502.5(b), as
                proposed, with respect to EISs.
                ---------------------------------------------------------------------------
                 The final rule continues to provide that agencies may prepare EAs
                by and with other agencies, applicants, and the public. Modern
                information technology can help facilitate this collaborative EA
                preparation, allowing the agency to make a coordinated but independent
                evaluation of the environmental issues and assume responsibility for
                the scope and content of the EA. CEQ proposed to move the public
                involvement requirements for EAs from the current 40 CFR 1501.4(b) to
                Sec. 1501.5 and change ``environmental'' to ``relevant'' agencies to
                include all agencies that may contribute information that is relevant
                to the development of an EA. CEQ makes these changes in paragraph (e)
                in the final rule. CEQ also adds to and reorders the list to ``the
                public, State, Tribal, and local governments, relevant agencies, and
                any applicants,'' to address some confusion by public commenters that
                interpreted relevant to modify the public and applicants. In addition,
                this revision acknowledges that there will not be an applicant in all
                instances. Consistent with the 1978 regulations, the final rule does
                not specifically require publication of a draft EA for public review
                and comment, but continues to require agencies to reasonably involve
                the public prior to completion of the EA, so that they may provide
                meaningful input on those subject areas that the agency must consider
                in preparing the EA. Depending on the circumstances, the agency could
                provide adequate information through public meetings or by a detailed
                scoping notice, for example. There is no single correct approach for
                public involvement. Rather, agencies should consider the circumstances
                and have discretion to conduct public involvement tailored to the
                interested public, to available means of communications to reach the
                interested and affected parties, and to
                [[Page 43324]]
                the particular circumstances of each proposed action.
                 The NPRM proposed to establish a presumptive 75-page limit for EAs,
                but allow a senior agency official to approve a longer length and
                establish a new page limit in writing. CEQ adds this new requirement at
                paragraph (f) in the final rule. As noted in the NPRM, while Question
                36a of the Forty Questions, supra note 2, stated that EAs should be
                approximately 10 to 15 pages, in practice, such assessments are often
                longer to address compliance with other applicable laws, and to
                document the effects of mitigation to support a FONSI. To achieve the
                presumptive 75-page limit, agencies should write all NEPA environmental
                documents in plain language, follow a clear format, and emphasize
                important impact analyses and relevant information necessary for those
                analyses, rather than providing extensive background material. An EA
                should have clear and concise conclusions and may incorporate by
                reference data, survey results, inventories, and other information that
                support these conclusions, so long as this information is reasonably
                available to the public.
                 The presumptive EA page limit promotes more readable documents and
                provides agencies flexibility to prepare longer documents, where
                necessary, to support the agency's analysis. This presumptive page
                limit is consistent with CEQ's guidance on EAs, which advises agencies
                to avoid preparing lengthy EAs except in unusual cases where a proposal
                is so complex that a concise document cannot meet the goals of an EA
                and where it is extremely difficult to determine whether the proposal
                could cause significant effects. Page limits will encourage agencies to
                identify the relevant issues, focus on significant environmental
                impacts, and prepare concise readable documents that will inform
                decision makers as well as the public. Voluminous, unfocused
                environmental documents do not advance the goals of informed decision
                making or protection of the environment.
                 CEQ proposed to add a new paragraph (f) to Sec. 1501.5 to clarify
                that agencies also may apply, as appropriate, certain provisions in
                part 1502 regarding incomplete or unavailable information, methodology
                and scientific accuracy, and environmental review and consultation
                requirements to EAs. CEQ includes this new paragraph at Sec. 1501.5(g)
                in the final rule.
                 In addition to the new Sec. 1501.5, CEQ incorporates reference to
                EAs in other sections of the regulations to codify existing agency
                practice where it would make the NEPA process more efficient and
                effective. As discussed in section II.C.9, CEQ makes a presumptive time
                limit applicable to EAs in Sec. 1501.10. Further, for some agencies,
                it is a common practice to have lead and cooperating agencies
                coordinate in the preparation of EAs where more than one agency may
                have an action on a proposal; therefore, CEQ adds EAs to Sec. Sec.
                1501.7 and 1501.8, as discussed in section II.C.7. Finally, as
                discussed in section II.C.10, CEQ proposed to add EAs to Sec. 1501.11,
                ``Tiering,'' to codify current agency practice of using EAs where the
                effects of a proposed agency action are not likely to be significant.
                These include program decisions that may facilitate later site-specific
                EISs as well as the typical use of EAs as a second-tier document tiered
                from an EIS. CEQ makes these changes in the final rule.
                6. Findings of No Significant Impact (Sec. 1501.6)
                 When an agency determines in its EA that an EIS is not required, it
                typically prepares a FONSI. The FONSI reflects that the agency has
                engaged in the necessary review of environmental impacts under NEPA.
                The FONSI shows that the agency examined the relevant data and
                explained the agency findings by providing a rational connection
                between the facts presented in the EA and the conclusions drawn in the
                finding. Any finding should clearly identify the facts found and the
                conclusions drawn by the agency based on those facts.
                 In response to the ANPRM, CEQ received comments requesting that CEQ
                update its regulations to consolidate provisions and provide more
                detailed requirements for FONSIs. CEQ proposed to consolidate the
                operative language of 40 CFR 1508.13, ``Finding of no significant
                impact'' with 40 CFR 1501.4, ``Whether to prepare an environmental
                impact statement,'' in the proposed Sec. 1501.6, ``Findings of no
                significant impact.'' CEQ proposed to strike paragraph (a) as the
                requirements in that paragraph are addressed in Sec. 1507.3(d)(2)
                (Sec. 1507.3(e)(2) in the final rule). As noted in section II.C.5, CEQ
                proposed to move 40 CFR 1501.4(b) to Sec. 1501.5, ``Environmental
                assessments.'' Similarly, CEQ proposed to strike 40 CFR 1501.4(d),
                because Sec. 1501.9, ``Scoping,'' addresses this requirement. CEQ
                makes these changes in the final rule.
                 CEQ proposed to make 40 CFR 1501.4(e) the new Sec. 1501.6(a), and
                revise the language to clarify that an agency must prepare a FONSI when
                it determines that a proposed action will not have significant effects
                based on the analysis in the EA, consistent with the definition of
                FONSI. The proposed rule had erroneously included the standard for
                preparing an EA--``is not likely to have significant effects.'' CEQ
                proposed to clarify in paragraph (a)(2) that the circumstances listed
                in paragraphs (a)(2)(i) and (ii) are the situations where the agency
                must make a FONSI available for public review. CEQ makes these changes
                in the final rule.
                 CEQ proposed to move the operative requirement that a FONSI include
                the EA or a summary from the definition of FONSI in 40 CFR 1508.13 to a
                new paragraph (b). CEQ also proposed to change the requirement that the
                FONSI include a summary of the EA to ``incorporate it by reference.''
                Consistent with Sec. 1501.12, in order to incorporate the EA by
                reference, the agency would need to briefly summarize it. Making this
                change ensures that the EA is available to the public. CEQ makes these
                changes in the final rule.
                 Finally, CEQ proposed a new paragraph (c) to address mitigation,
                which CEQ includes in the final rule. The first sentence addresses
                mitigation generally in a FONSI, requiring agencies to state the
                authority for any mitigation adopted and any applicable monitoring or
                enforcement provisions. This sentence applies to all FONSIs. CEQ omits
                the ``means of'' mitigation from the final rule because it is
                unnecessary and many commenters misunderstood its meaning or found it
                confusing. The second sentence codifies the practice of mitigated
                FONSIs, consistent with CEQ's Mitigation Guidance.\81\ This provision
                requires the agency to identify the enforceable mitigation requirements
                and commitments, which are those mitigation requirements and
                commitments needed to reduce the effects below the level of
                significance.\82\ When preparing an EA, many agencies develop,
                consider, and commit to mitigation measures to avoid, minimize,
                rectify, reduce, or compensate for potentially significant adverse
                environmental impacts that would otherwise require preparation of an
                EIS. An agency can commit to mitigation
                [[Page 43325]]
                measures for a mitigated FONSI when it can ensure that the mitigation
                will be performed, when the agency expects that resources will be
                available, and when the agency has sufficient legal authorities to
                ensure implementation of the proposed mitigation measures. CEQ does not
                intend this codification of CEQ guidance to create a different standard
                for analysis of mitigation for a ``mitigated FONSI,'' but to provide
                clarity regarding the use of FONSIs.
                ---------------------------------------------------------------------------
                 \81\ The Mitigation Guidance, supra note 29, amended and
                supplemented the Forty Questions, supra note 2, specifically
                withdrawing Question 39 insofar as it suggests that mitigation
                measures developed during scoping or in an EA ``[do] not obviate the
                need for an EIS.''
                 \82\ As discussed in sections I.B.1 and II.B, NEPA is a
                procedural statute and does not require adoption of a mitigation
                plan. However, agencies may consider mitigation measures that would
                avoid, minimize, rectify, reduce, or compensate for potentially
                significant adverse environmental impacts and may require mitigation
                pursuant to substantive statutes.
                ---------------------------------------------------------------------------
                7. Lead and Cooperating Agencies (Sec. Sec. 1501.7 and 1501.8)
                 The 1978 CEQ regulations created the roles of lead agency and
                cooperating agencies for NEPA reviews, which are critical for actions,
                such as non-Federal projects, requiring the approval or authorization
                of multiple agencies. Agencies need to coordinate and synchronize their
                NEPA processes to ensure an efficient environmental review that does
                not cause delays. In recent years, Congress and several administrations
                have worked to establish a more synchronized procedure for multi-agency
                NEPA reviews and related authorizations, including through the
                development of expedited procedures such as the section 139 process and
                FAST-41. In response to the ANPRM, CEQ received comments requesting
                that CEQ update its regulations to clarify the roles of lead and
                cooperating agencies.
                 CEQ proposed a number of modifications to Sec. 1501.7, ``Lead
                agencies,'' and Sec. 1501.8, ``Cooperating agencies,'' (40 CFR 1501.5
                and 1501.6, respectively, in the 1978 regulations) to improve
                interagency coordination, make development of NEPA documents more
                efficient, and facilitate implementation of the OFD policy. As stated
                in the NPRM, CEQ intends these modifications to improve the efficiency
                and outcomes of the NEPA process--including cost reduction, improved
                relationships, and better outcomes that avoid litigation--by promoting
                environmental collaboration.\83\ These modifications are consistent
                with Questions 14a and 14c of the Forty Questions, supra note 2. CEQ
                proposed to apply Sec. Sec. 1501.7 and 1501.8 to EAs as well as EISs
                consistent with agency practice. CEQ makes these changes in the final
                rule, but clarifies that the provisions apply to ``complex'' EAs and
                not routine EAs where involving multiple agencies could slow down an
                already efficient and effective process.\84\
                ---------------------------------------------------------------------------
                 \83\ See, e.g., Federal Forum on Environmental Collaboration and
                Conflict Resolution, Environmental Collaboration and Conflict
                Resolution (ECCR): Enhancing Agency Efficiency and Making Government
                Accountable to the People (May 2, 2018), https://ceq.doe.gov/docs/nepa-practice/ECCR_Benefits_Recommendations_Report_%205-02-018.pdf.
                 \84\ This is consistent with CEQ's reports on cooperating
                agencies, which have shown that use of cooperating agencies for EAs
                has remained low. Council on Environmental Quality, Attachment A,
                The Fourth Report on Cooperating Agencies in Implementing the
                Procedural Requirements of the National Environmental Policy Act
                (NEPA) 1 (Oct. 2016), https://ceq.doe.gov/docs/ceq-reports/Attachment-A-Fourth-Cooperating-Agency-Report_Oct2016.pdf
                (percentage of EAs with cooperating agencies was 6.8 percent for
                Fiscal Years 2012 through 2015); see also Council on Environmental
                Quality, Attachment A, The Second Report on Cooperating Agencies in
                Implementing the Procedural Requirements of the National
                Environmental Policy Act (NEPA) 2 (May 2012), https://ceq.doe.gov/docs/ceq-reports/Cooperating_Agency_Report_2005-11_Attachment_23May2012.pdf (percentage of EAs with cooperating
                agencies was 5.9 percent for Fiscal Years 2005 through 2011).
                ---------------------------------------------------------------------------
                 CEQ proposed to clarify in Sec. 1501.7(d) that requests for lead
                agency designations should be sent in writing to the senior agency
                officials of the potential lead agencies. CEQ makes this change in the
                final rule. CEQ did not propose any changes to paragraphs (e) and (f)
                of Sec. 1501.7, but makes clarifying edits by reorganizing phrases and
                changing the language to active voice in the final rule.
                 Consistent with the OFD policy to ensure coordinated and timely
                reviews, CEQ proposed to add a new paragraph (g) to Sec. 1501.7 to
                require that Federal agencies evaluate proposals involving multiple
                Federal agencies in a single EIS and issue a joint ROD \85\ or single
                EA and joint FONSI when practicable. CEQ adds this paragraph to the
                final rule with edits to the EA sentence to make the language
                consistent with the EIS sentence.
                ---------------------------------------------------------------------------
                 \85\ A ``single ROD,'' as used in E.O. 13807, is the same as a
                ``joint ROD,'' which is a ROD addressing all Federal agency actions
                covered in the single EIS and necessary for a proposed project. 40
                CFR 1508.25(a)(3). The regulations would provide flexibility for
                circumstances where a joint ROD is impracticable. Examples include
                the statutory directive to issue a combined final EIS and ROD for
                transportation actions and the FERC's adjudicatory process.
                ---------------------------------------------------------------------------
                 CEQ proposed to move language from the cooperating agency
                provision, 40 CFR 1501.6(a), that addresses the lead agency's
                responsibilities with respect to cooperating agencies to proposed
                paragraph (h) in Sec. 1501.7 so that all of the lead agency's
                responsibilities are in a single section. CEQ also proposed to clarify
                in paragraph (h)(4) that the lead agency is responsible for determining
                the purpose and need, and alternatives in consultation with any
                cooperating agencies.\86\ CEQ makes this move and addition in the final
                rule. In response to comments, the final rule eliminates the phrase
                ``consistent with its responsibility as lead agency'' in paragraph
                (h)(2) because it is non-specific and could cause agencies to reject
                germane and informative scientific research.
                ---------------------------------------------------------------------------
                 \86\ See OFD Framework Guidance, supra note 30, sec. VIII.A.5
                (``The lead agency is responsible for developing the Purpose and
                Need, identifying the range of alternatives to be analyzed,
                identifying the preferred alternative and determining whether to
                develop the preferred alternative to a higher level of detail.'');
                Connaughton Letter, supra note 29 (``[J]oint lead or cooperating
                agencies should afford substantial deference to the [ ] agency's
                articulation of purpose and need.'')
                ---------------------------------------------------------------------------
                 CEQ proposed new paragraphs (i) and (j) in Sec. 1501.7, and (b)(6)
                and (7) in Sec. 1501.8, to require development of and adherence to a
                schedule for the environmental review of and any authorizations
                required for a proposed action, and resolution of disputes and other
                issues that may cause delays in the schedule. CEQ includes these
                provisions in the final rule with minor edits for clarity. These
                provisions are consistent with current practices at agencies that have
                adopted elevation procedures pursuant to various statutes and
                directives, including 23 U.S.C. 139, FAST-41, and E.O. 13807. In
                response to comments, CEQ includes a new paragraph (b)(8) in Sec.
                1501.8 requiring cooperating agencies to jointly issue environmental
                documents with the lead agency, to the maximum extent practicable. This
                addition is consistent with the goal of interagency cooperation and
                efficiency.
                 CEQ proposed to move the operative language that State, Tribal, and
                local agencies may serve as cooperating agencies from the definition of
                cooperating agency (40 CFR 1508.5) to paragraph (a) of Sec. 1501.8.
                Upon the request of the lead agency, non-Federal agencies should
                participate in the environmental review process to ensure early
                collaboration on proposed actions where such entities have jurisdiction
                by law or special expertise. CEQ also proposed in paragraph (a) to
                codify current practice to allow a Federal agency to appeal to CEQ a
                lead agency's denial of a request to serve as cooperating agency.
                Resolving disputes among agencies early in the process furthers the OFD
                policy and the goal of more efficient and timely NEPA reviews. CEQ
                makes these changes in the final rule with minor edits for clarity.
                Finally, CEQ proposed clarifications and grammatical edits throughout
                Sec. 1501.8. CEQ makes these changes in the final rule.
                8. Scoping (Sec. 1501.9)
                 In response to the ANPRM, CEQ received comments requesting that CEQ
                update its regulations related to scoping,
                [[Page 43326]]
                including comments requesting that agencies have greater flexibility in
                how to conduct scoping. CEQ proposed to reorganize in more
                chronological order, Sec. 1501.9, ``Scoping,'' (40 CFR 1501.7 in the
                1978 regulations), consolidate all the requirements for the NOI and the
                scoping process into the same section, and add paragraph headings to
                improve clarity. CEQ makes these changes in the final rule with minor
                edits as described further in this section.
                 Specifically, CEQ proposed to revise paragraph (a) to state the
                general requirement to use scoping for EISs. Rather than requiring
                publication of an NOI as a precondition to the scoping process, CEQ
                proposed to modify paragraph (a) so that agencies can begin the scoping
                process as soon as the proposed action is developed sufficiently for
                meaningful agency consideration. Some agencies refer to this as pre-
                scoping under the existing regulations to capture scoping work done
                before publication of the NOI. Rather than tying the start of scoping
                to the agency's decision to publish an NOI to prepare an EIS, the
                timing and content of the NOI would instead become an important step in
                the scoping process itself, thereby obviating the artificial
                distinction between scoping and pre-scoping. However, agencies should
                not unduly delay publication of the NOI and should be transparent about
                any work done prior to publication of the NOI. CEQ makes the changes as
                proposed in the final rule.
                 Paragraph (b) addresses the responsibility of the lead agency to
                invite cooperating and participating agencies as well as other likely
                affected or interested persons. CEQ proposed to add ``likely'' to this
                paragraph to capture the reality that, at the scoping stage, agencies
                may not know the identities of all affected parties and that one of the
                purposes of scoping is to identify affected parties. CEQ makes this
                change in the final rule. In the final rule, CEQ strikes ``on
                environmental grounds'' from the parenthetical noting that likely
                affected or interested persons include those who might not agree with
                the action because the clause is unnecessarily limiting. Agencies
                should invite the participation of those who do not agree with the
                action irrespective of whether it is on environmental grounds.
                 The NPRM proposed to move the existing (b)(4) to paragraph (c),
                ``Scoping outreach.'' CEQ proposed to broaden the types of activities
                agencies might hold during scoping, including meetings, publishing
                information, and other means of communication to provide agencies
                additional flexibility in how to reach interested or affected parties
                in the scoping process. CEQ finalizes this change as proposed.
                 Paragraph (d) proposed to address the NOI requirements. CEQ
                proposed a list of what agencies must include in an NOI to standardize
                NOI format, achieve greater consistency across agencies, provide the
                public with more information and transparency, and ensure that agencies
                conduct the scoping process in a manner that facilitates implementation
                of the OFD policy for multi-agency actions, including by proactively
                soliciting comments on alternatives, impacts, and relevant information
                to better inform agency decision making. CEQ makes these changes in the
                final rule with minor edits for clarity and edits to paragraph (d)(7)
                for consistency with Sec. Sec. 1500.3 and 1502.17 and to correct the
                cross-reference.
                 CEQ proposed to move the criteria for determining scope from the
                definition of scope, 40 CFR 1508.25, to paragraph (e) and to strike the
                paragraph on ``cumulative actions'' for consistency with the proposed
                revisions to the definition of ``effects'' discussed below. CEQ makes
                this change in the final rule, but does not include the reference to
                ``similar actions'' in proposed paragraph (e)(1)(ii) because commenters
                expressed confusion regarding whether the determination of the scope of
                the environmental documentation, as discussed in proposed Sec.
                1501.9(e)(1)(i)(C) was directly related to the discussion of the
                ``effects of the action'' as effects are defined in Sec. 1508.1(g). To
                eliminate this confusion, CEQ strikes the language in proposed Sec.
                1501.9(e)(1)(i)(C) (40 CFR 1508.25(a)(3)) regarding similar actions.
                Further, CEQ notes that, in cases where the question of the
                consideration of similar actions to determine the scope of the NEPA
                documentation was raised, courts noted the discretionary nature of the
                language (use of the word ``may'' and ``should'' in proposed Sec.
                1501.9(e)(1)(i)(C) (40 CFR 1508.25(a)(3)) and have held that
                determinations as to the scope of a NEPA document based on a
                consideration of similar actions was left to the agency's discretion.
                See e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
                F.3d 989, 1000-01 (9th Cir. 2004). CEQ also notes that the reference to
                ``other reasonable courses of action'' in paragraph (e)(2) are within
                the judgement of the agency. Agencies have discretion to address
                similar actions through a single analysis, pursuant to revised Sec.
                1502.4(b).
                 Finally, paragraph (f) addresses other scoping responsibilities,
                including identifying and eliminating from detailed study non-
                significant issues, allocating assignments among lead and cooperating
                agencies, indicating other related NEPA documents, identifying other
                environmental review requirements, and indicating the relationship
                between the environmental review and decision-making schedule. CEQ
                retains this paragraph in the final rule as proposed with minor
                grammatical edits.
                9. Time Limits (Sec. 1501.10)
                 In response to the ANPRM, CEQ received many comments on the lengthy
                timelines and costs of environmental reviews, and many suggestions for
                more meaningful time limits for the completion of the NEPA process.
                Accordingly, and to promote timely reviews, CEQ proposed to establish
                presumptive time limits for EAs and EISs consistent with E.O. 13807 and
                prior CEQ guidance. In Question 35 of the Forty Questions, supra note
                2, CEQ stated its expectation that ``even large complex energy projects
                would require only about 12 months for the completion of the entire EIS
                process'' and that, for most major actions, ``this period is well
                within the planning time that is needed in any event, apart from
                NEPA.'' CEQ also recognized that ``some projects will entail difficult
                long-term planning and/or the acquisition of certain data which of
                necessity will require more time for the preparation of the EIS.'' Id.
                Finally, Question 35 stated that an EA ``should take no more than 3
                months, and in many cases substantially less as part of the normal
                analysis and approval process for the action.''
                 Based on agency experience with the implementation of the
                regulations, CEQ proposed in Sec. 1501.10, ``Time limits,'' to change
                the introductory text to paragraph (a) and add a new paragraph (b) to
                establish a presumptive time limit for EAs of one year and a
                presumptive time limit for EISs of two years. However, the NPRM also
                proposed that a senior agency official could approve in writing a
                longer period. CEQ proposed to define the start and end dates of the
                period consistent with E.O. 13807. CEQ makes these changes in the final
                rule. CEQ eliminates the sentence regarding lead agency from paragraph
                (a) because it is no longer needed given the revisions to this section
                changing ``agency'' to ``senior agency official.'' In response to
                comments, the final rule also adds ``FONSI'' to paragraph (b)(1) to
                clarify that the time limit for EAs is measured from the date of
                decision to prepare to the publication of an EA or FONSI, since
                agencies may not publish
                [[Page 43327]]
                the EA separately. The final rule also clarifies that the time period
                is measured from the date the agency decides to prepare an EA, since
                applicants sometimes prepare EAs on behalf of agencies.
                 Consistent with CEQ and OMB guidance, agencies should begin scoping
                and development of a schedule for timely completion of an EIS prior to
                issuing an NOI and commit to cooperate, communicate, share information,
                and resolve conflicts that could prevent meeting milestones.\87\ CEQ
                recognizes that agency capacity, including those of cooperating and
                participating agencies, may affect timing, and that agencies should
                schedule and prioritize their resources accordingly to ensure effective
                environmental analyses and public involvement. Further, agencies have
                flexibility in the management of their internal processes to set
                shorter time limits and to define the precise start and end times for
                measuring the completion time of an EA. Therefore, CEQ proposed to
                retain the factors for determining time limits in paragraph (c). CEQ
                proposed to revise paragraph (c)(6) for clarity and strike paragraph
                (c)(7) regarding controversial actions because it overlaps with
                numerous other factors, and because whether or not an action is
                controversial is not relevant to the analysis under NEPA. CEQ also
                proposed to retain with edits for clarity the list of parts of the NEPA
                process for which the senior agency official may set time limits in
                paragraph (d). CEQ retains paragraphs (c) and (d) in the final rule
                with the changes as proposed.
                ---------------------------------------------------------------------------
                 \87\ See OFD Framework Guidance, supra note 30 (``[w]hile the
                actual schedule for any given project may vary based upon the
                circumstances of the project and applicable law, agencies should
                endeavor to meet the two-year goal . . . .'').
                ---------------------------------------------------------------------------
                 CEQ proposed conforming edits to Sec. 1500.5(g) to change
                ``establishing'' to ``meeting'' time limits and add ``environmental
                assessment.'' CEQ makes these edits in the final rule.
                10. Tiering (Sec. 1501.11)
                 CEQ proposed to move 40 CFR 1502.20, ``Tiering,'' to a new Sec.
                1501.11 and revise it to make clear that this provision is applicable
                to both EAs and EISs. CEQ proposed a number of revisions in Sec.
                1501.11 to clarify when agencies can use existing studies and
                environmental analyses in the NEPA process and when agencies would need
                to supplement such studies and analyses. The revisions clarify that
                agencies do not need to conduct site-specific analyses prior to an
                irretrievable commitment of resources, which in most cases will not be
                until the decision at the site-specific stage. CEQ makes these changes
                with additional updates in the final rule.
                 Specifically, the final rule splits proposed paragraph (a) into two
                paragraphs. In the new paragraph (a), CEQ changes ``are encouraged to''
                to ``should'' and moves to the end of this paragraph the sentence
                stating that tiering may also be appropriate for different stages of
                actions. The new paragraph (b) addresses the relationship between the
                different levels of tiered documents, and CEQ makes additional edits to
                this paragraph for clarity.
                 CEQ also proposed to move the operative language addressing
                specific examples of when tiering is appropriate from the definition of
                tiering in 40 CFR 1508.28 to proposed paragraph (b). CEQ moves this
                language to paragraph (c) in the final rule with the edits as proposed.
                11. Incorporation by Reference (Sec. 1501.12)
                 CEQ proposed to move 40 CFR 1502.21, ``Incorporation by
                reference,'' to a new Sec. 1501.12 and change ``environmental impact
                statements'' to ``environmental documents'' because this provision is
                applicable generally, not just to EISs. CEQ makes this change in the
                final rule. CEQ makes additional changes in the final rule to revise
                sentences from passive to active voice. In response to comments, CEQ
                adds examples to the types of material that agencies may incorporate,
                including planning studies and analyses.
                D. Revisions to Environmental Impact Statements (Part 1502)
                 As stated in the NPRM, the most extensive level of NEPA analysis is
                an EIS, which is the ``detailed statement'' required under section
                102(2)(C) of NEPA. When an agency prepares an EIS, it typically issues
                a ROD at the conclusion of the NEPA review. Based on the Environmental
                Protection Agency (EPA) weekly Notices of Availability published in the
                Federal Register between 2010 and 2019, Federal agencies published
                approximately 176 final EISs per year. CEQ proposed to update the
                format, page length, and timeline to complete EISs to better achieve
                the purposes of NEPA. CEQ also proposed several changes to streamline,
                allow for flexibility in, and improve the preparation of EISs. CEQ
                includes provisions in part 1502 to promote informed decision making by
                agencies and to inform the public about the decision-making process.
                The final rule continues to encourage application of NEPA early in the
                process and early engagement with applicants for non-Federal projects.
                1. Purpose of Environmental Impact Statement (Sec. 1502.1)
                 CEQ proposed to revise Sec. 1502.1 for consistency with the
                statutory language of NEPA and make other non-substantive revisions for
                clarity. CEQ makes these changes in the final rule. The final rule also
                retitles this section.
                2. Implementation (Sec. 1502.2)
                 CEQ proposed to strike the introductory text of Sec. 1502.2 as
                unnecessary and revise the text in paragraphs (a) and (c) for clarity
                and consistency with the language in the rule and regulatory text
                generally. CEQ makes these changes in the final rule with minor
                clarifying edits. The final rule clarifies in paragraph (d) that, in
                preparing an EIS, agencies shall state how the alternatives considered
                in it and decisions based on it serve the purposes of the statute as
                interpreted in the CEQ regulations. The final rule strikes ``ultimate
                agency'' in paragraph (e) because there may be multiple individuals
                within certain departments or agencies that have decision-making
                responsibilities, including where subunits have developed agency
                procedures or NEPA compliance programs.
                3. Statutory Requirements for Statements (Sec. 1502.3)
                 CEQ proposed to revise Sec. 1502.3 to make it a single paragraph,
                remove cross-references to the definition, and make minor clarifying
                edits. CEQ makes these changes in the final rule.
                4. Major Federal Actions Requiring the Preparation of Environmental
                Impact Statements (Sec. 1502.4)
                 CEQ proposed to revise Sec. 1502.4 to clarify in paragraph (a)
                that a ``properly defined'' proposal is one that is based on the
                statutory authorities for the proposed action. CEQ proposed to change
                ``broad'' and ``program'' to ``programmatic'' in this section, as well
                as Sec. Sec. 1500.4(k) and 1506.1(c), since ``programmatic'' is the
                term commonly used by NEPA practitioners. The NPRM proposed further
                revisions to paragraph (b), including eliminating reference to
                programmatic EISs that ``are sometimes required,'' to focus the
                provision on the discretionary use of programmatic EISs in support of
                clearly defined decision-making purposes. For consistency, CEQ proposed
                to change the mandatory language to be discretionary in proposed
                paragraph (c)(3) (paragraph (b)(1)(iii) in the final rule). As CEQ
                stated in its 2014 guidance, programmatic NEPA reviews
                [[Page 43328]]
                ``should result in clearer and more transparent decision[ ]making, as
                well as provide a better defined and more expeditious path toward
                decisions on proposed actions.'' \88\ Other statutes or regulations may
                grant discretion or otherwise identify circumstances for when to
                prepare a programmatic EIS. See, e.g., National Forest Management Act,
                16 U.S.C. 1604(g); 36 CFR 219.16. CEQ makes these changes in the final
                rule, and reorganizes proposed paragraphs (c) and (d) to be paragraphs
                (b)(1) and (2) since these paragraphs all address programmatic reviews.
                Finally, CEQ proposed to add a new sentence to proposed paragraph (d)
                (paragraph (b)(2) in the final rule) to clarify that when conducting
                programmatic reviews, agencies may tier their analyses to defer
                detailed analysis of specific program elements until they are ripe for
                decisions that would involve an irreversible or irretrievable
                commitment of resources. The final rule removes this latter clause and
                simplifies it to elements ``ripe for final agency action'' because NEPA
                review occurs pursuant to the APA and ``final agency action,'' as
                construed in Bennett v. Spear, is the test for when judicial review can
                commence. See 520 U.S. at 177-78.
                ---------------------------------------------------------------------------
                 \88\ Programmatic Guidance, supra note 29, at 7.
                ---------------------------------------------------------------------------
                5. Timing (Sec. 1502.5)
                 For the reasons discussed in section II.C.2 and consistent with the
                edits to Sec. 1501.2, CEQ proposed to change ``shall'' to ``should''
                in the introductory text so that agencies can exercise their best
                judgement about when to begin the preparation of an EIS. CEQ also
                proposed to revise paragraph (b) to clarify that agencies should work
                with potential applicants and applicable agencies before applicants
                submit applications. CEQ makes these changes in the final rule. Also,
                as noted in section II.C.7, CEQ revises paragraph (b) in the final rule
                to only address EISs in this section and move the discussion of EAs to
                Sec. 1501.5. Finally, CEQ adds ``and governments'' to ``State, Tribal,
                and local agencies'' to be comprehensive and consistent with similar
                changes made throughout the rule.
                6. Interdisciplinary Preparation (Sec. 1502.6)
                 CEQ proposed minor edits to Sec. 1502.6 consistent with the global
                changes discussed in section II.A. CEQ includes these changes in the
                final rule and revises this provision from passive to active voice.
                7. Page Limits (Sec. 1502.7)
                 In response to the ANPRM, CEQ received many comments on the length,
                complexity, and readability of environmental documents, and many
                suggestions for more meaningful page limits. As the President Carter
                noted in 1977 regarding issuance of E.O. 11991, ``to be more useful to
                decision[ ]makers and the public, [EISs] must be concise, readable, and
                based upon competent professional analysis. They must reflect a concern
                with quality, not quantity. We do not want [EISs] that are measured by
                the inch or weighed by the pound.'' \89\ The core purpose of page
                limits from the original regulations remains--documents must be a
                reasonable length and in a readable format so that it is practicable
                for the decision maker to read and understand the document in a
                reasonable time period. If documents are unreasonable in their length
                or unwieldly, there is a risk that they will not inform the decision
                maker, thereby undermining the purposes of the Act. As the Supreme
                Court noted in Metropolitan Edison Co. v. People Against Nuclear
                Energy, ``[t]he scope of the agency's inquiries must remain manageable
                if NEPA's goal of `[insuring] a fully informed and well-considered
                decision,' . . . is to be accomplished.'' 460 U.S. at 776 (quoting Vt.
                Yankee, 435 U.S. at 558). Therefore, CEQ proposed to reinforce the page
                limits for EISs set forth in Sec. 1502.7, while allowing a senior
                agency official to approve a statement exceeding 300 pages when it is
                useful to the decision-making process. CEQ makes these changes in the
                final rule.
                ---------------------------------------------------------------------------
                 \89\ The Environment--Message to the Congress, 1977 Pub. Papers
                967, 985 (May 23, 1977).
                ---------------------------------------------------------------------------
                 As captured in CEQ's updated report on the length of final EISs,
                these documents average over 600 pages. See CEQ Length of EISs Report,
                supra note 38. While the length of an EIS will vary based on the
                complexity and significance of the proposed action and environmental
                effects the EIS considers, every EIS must be bounded by the practical
                limits of the decision maker's ability to consider detailed
                information. CEQ proposed this change to ensure that agencies develop
                EISs focused on significant effects and on the information useful to
                decision makers and the public to more successfully implement NEPA.
                 CEQ intends for senior agency officials to take responsibility for
                the quantity, quality, and timelines of environmental analyses
                developed in support of the decisions of their agencies. Therefore, the
                senior agency official approving an EA or EIS in excess of the page
                limits should ensure that the final environmental document meets the
                informational needs of the agency's decision maker. For example, the
                agency decision makers may have varying levels of capacity to consider
                the information presented in the environmental document. In ensuring
                that the agency provides the resources necessary to implement NEPA, in
                accordance with Sec. 1507.2, senior agency officials should ensure
                that agency staff have the resources and competencies necessary to
                produce timely, concise, and effective environmental documents.
                Decisions as to page length for these documents are therefore closely
                related to an agency's decision as to how to structure its decision-
                making process, and for that reason must ultimately remain within the
                discretion of the agency.
                8. Writing (Sec. 1502.8)
                 CEQ did not propose any changes to Sec. 1502.8. In the final rule,
                CEQ revises this provision to correct grammatical errors, including
                revising it from passive to active voice.
                9. Draft, Final and Supplemental Statements (Sec. 1502.9)
                 CEQ proposed to include headings for each of the paragraphs in
                Sec. 1502.9, ``Draft, final, and supplemental statements,'' to improve
                readability. CEQ proposed edits to paragraph (b) for clarity, replacing
                ``revised draft'' with ``supplemental draft.'' CEQ makes these changes
                in the final rule and makes additional clarifying edits in Sec.
                1502.9, including to revise the language from passive to active voice.
                 CEQ also received many comments in response to the ANPRM requesting
                clarification regarding when supplemental statements are required. CEQ
                proposed revisions to paragraph (d)(1) to clarify that agencies need to
                update environmental documents when there is new information or a
                change in the proposed action only if a major Federal action remains to
                occur and other requirements are met. CEQ makes this change in the
                final rule. As noted in the NPRM, this revision is consistent with
                Supreme Court case law holding that a supplemental EIS is required only
                ``[i]f there remains `major Federal actio[n]' to occur, and if the new
                information is sufficient to show that the remaining action will
                `affec[t] the quality of the human environment' in a significant manner
                or to a significant extent not already considered . . . .'' Marsh, 490
                U.S. at 374 (quoting 42 U.S.C. 4332(2)(C)); see also Norton v. S. Utah
                Wilderness All., 542 U.S. 55, 73 (2004). For example, supplementation
                [[Page 43329]]
                may be triggered after an agency executes a grant agreement but before
                construction is complete because the agency has yet to provide all of
                the funds under that grant agreement. On the other hand, when an agency
                issues a final rule establishing a regulatory scheme, there is no
                remaining action to occur, and therefore supplementation is not
                required. If there is no further agency action after the agency's
                decision, supplementation does not apply because the Federal agency
                action is complete. S. Utah Wilderness All., 542 U.S. at 73 (``although
                the `[a]pproval of a [land use plan]' is a `major Federal action'
                requiring an EIS . . . that action is completed when the plan is
                approved. . . . There is no ongoing `major Federal action' that could
                require supplementation (though BLM is required to perform additional
                NEPA analyses if a plan is amended or revised . . . .)'') (emphasis in
                original).
                 In order to determine whether a supplemental analysis is required,
                CEQ proposed a new paragraph (d)(4) to provide that an agency may
                document its determination of whether a supplemental analysis is
                required consistent with its agency NEPA procedures or may, although it
                is not required, do so in an EA. CEQ adds this paragraph to the final
                rule, codifying the existing practice of several Federal agencies, such
                as the Department of Transportation's reevaluation provided for
                highway, transit, and railroad projects (23 CFR 771.129); the Bureau of
                Land Management's Determination of NEPA Adequacy (Department of the
                Interior Departmental Manual, Part 516, Chapter 11, Sec. 11.6); and
                the Corps' Supplemental Information Report (section 13(d) of
                Engineering Regulation 200-2-2).
                10. Recommended Format (Sec. 1502.10)
                 CEQ proposed to revise Sec. 1502.10 to provide agencies with more
                flexibility in formatting an EIS given that most EISs are prepared and
                distributed electronically. Specifically, CEQ proposed to eliminate the
                requirement to have a list of agencies, organizations and persons to
                whom copies of the EIS are sent since EISs are published online, and an
                index, as this is no longer necessary when most documents are produced
                in an electronically searchable format. Proposed changes to this
                section would also allow agencies to use a different format so that
                they may customize EISs to address the particular proposed action and
                better integrate environmental considerations into agency decision-
                making processes. CEQ makes these changes in the final rule.
                11. Cover (Sec. 1502.11)
                 CEQ proposed to retitle and amend Sec. 1502.11 to remove the
                reference to a ``sheet'' since agencies prepare EISs electronically.
                CEQ also proposed to add a requirement to include the estimated cost of
                preparing the EIS to the cover in new paragraph (g) to provide
                transparency to the public on the costs of EIS-level NEPA reviews. To
                track costs, the NPRM proposed that agencies must prepare an estimate
                of environmental review costs, including costs of the agency's full-
                time equivalent (FTE) personnel hours, contractor costs, and other
                direct costs related to the environmental review of the proposed
                action.\90\ CEQ also proposed this amendment to address the concerns
                raised by the U.S. Government Accountability Office that agencies are
                not tracking the costs of NEPA analyses, as well as the many comments
                CEQ received from stakeholders regarding the costs associated with
                development of NEPA analyses.\91\ CEQ noted in the NPRM that including
                such costs on the cover sheet would also be consistent with current OMB
                direction to Federal agencies to track costs of environmental reviews
                and authorizations for major infrastructure projects pursuant to E.O.
                13807 and would provide the public with additional information
                regarding EIS-level NEPA documents.
                ---------------------------------------------------------------------------
                 \90\ See, e.g., U.S. Department of the Interior, Reporting Costs
                Associated with Developing Environmental Impact Statements (July 23,
                2018), https://www.doi.gov/sites/doi.gov/files/uploads/dep_sec_memo_07232018_-_reporting_costs_associated_w_developing_environmental_impact_statements.pdf.
                 \91\ In a 2014 report, the U.S. Government Accountability Office
                found that Federal agencies do not routinely track data on the cost
                of completing NEPA analyses, and that the cost can vary
                considerably, depending on the complexity and scope of the project.
                U.S. Gov't Accountability Office, GAO-14-370, National Environmental
                Policy Act: Little Information Exists on NEPA Analyses (Apr. 15,
                2014) (``GAO NEPA Report''), https://www.gao.gov/products/GAO-14-370. The report referenced the 2003 CEQ task force analysis
                referenced above which estimated that a typical EIS costs from
                $250,000 to $2 million. See NEPA Task Force Report, supra note 28,
                at p. 65.
                ---------------------------------------------------------------------------
                 CEQ adds this new paragraph (g) in the final rule with additional
                changes to clarify that agencies should provide the estimate on the
                final EIS, and that it should include the costs of preparing both the
                draft EIS and the final EIS. The final rule also adds a sentence to
                clarify that agencies should include the costs of cooperating and
                participating agencies if practicable. If not practicable, agencies
                must so indicate. For integrated documents where an agency is preparing
                a document pursuant to multiple environmental statutory requirements,
                it may indicate that the estimate reflects costs associated with NEPA
                compliance as well as compliance with other environmental review and
                authorization requirements. Agencies can develop methodologies for
                preparing these cost estimates and include them in their implementing
                procedures.
                12. Summary (Sec. 1502.12)
                 CEQ proposed to change ``controversy'' to ``disputed'' in Sec.
                1502.12. CEQ makes this and grammatical changes in the final rule. This
                change will better align the second clause of the sentence, ``areas of
                disputed issues raised by agencies and the public,'' with the final
                clause of the sentence, ``and the issues to be resolved (including the
                choice among alternatives).''
                13. Purpose and Need (Sec. 1502.13)
                 CEQ received a number of comments in response to the ANPRM
                recommending that CEQ better define the requirements for purpose and
                need statements. The focus of a purpose and need statement is the
                purpose and need for the proposed action, and agencies should develop
                it based on consideration of the relevant statutory authority for the
                proposed action. The purpose and need statement also provides the
                framework in which the agency will identify ``reasonable alternatives''
                to the proposed action. CEQ has advised that this discussion of purpose
                and need should be concise (typically one or two paragraphs long) and
                that the lead agency is responsible for its definition. See Connaughton
                Letter, supra note 29 (``Thoughtful resolution of the purpose and need
                statement at the beginning of the process will contribute to a rational
                environmental review process and save considerable delay and
                frustration later in the decision[-]making process.''). ``In situations
                involving two or more agencies that have a decision to make for the
                same proposed action and responsibility to comply with NEPA or a
                similar statute, it is prudent to jointly develop a purpose and need
                statement that can be utilized by both agencies. An agreed-upon purpose
                and need statement at this stage can prevent problems later that may
                delay completion of the NEPA process.'' Id. The lead agency is
                responsible for developing the purpose and need, and cooperating
                agencies should give deference to the lead agency and identify any
                substantive concerns early in the process to ensure swift resolution.
                See OFD Framework Guidance, sec. VIII.A.5 and XII, supra note 30;
                Connaughton Letter, supra note 29.
                [[Page 43330]]
                Agencies should tailor the purpose and need statement to meet the
                authorization requirements of both the lead and cooperating agencies.
                 Consistent with CEQ guidance and in response to the ANPRM comments,
                CEQ proposed to revise Sec. 1502.13, ``Purpose and need,'' to clarify
                that the statement should focus on the purpose and need for the
                proposed action. In particular, CEQ proposed to strike ``to which the
                agency is responding in proposing the alternatives including'' to focus
                on the proposed action. CEQ further proposed, as discussed below, to
                address the relationship between the proposed action and alternatives
                in the definition of reasonable alternatives and other sections that
                refer to alternatives. Additionally, CEQ proposed to add a sentence to
                clarify that when an agency is responsible for reviewing applications
                for authorizations, the agency shall base the purpose and need on the
                applicant's goals and the agency's statutory authority. See, e.g.,
                Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.
                Cir. 1991) (agencies must consider the relevant factors including the
                needs and goals of the applicants and Congress' views as expressed in
                the agency's statutory authorization). This addition is consistent with
                the definition of reasonable alternatives, which must meet the goals of
                the applicant, where applicable. CEQ revises Sec. 1502.13 in the final
                rule consistent with the NPRM proposal.
                14. Alternatives Including the Proposed Action (Sec. 1502.14)
                 CEQ also received many comments on the ANPRM requesting
                clarification regarding ``alternatives'' under the regulations. This
                section of an EIS describes the proposed action and alternatives in
                comparative form, including their environmental impacts, such that the
                decision maker and the public can understand the basis for choice.
                However, as explained in Sec. 1502.16, this section of the EIS should
                not duplicate the affected environment and environmental consequences
                sections, and agencies have flexibility to combine these three sections
                in a manner that clearly sets forth the basis for decision making.
                 CEQ proposed changes to Sec. 1502.14, ``Alternatives including the
                proposed action,'' to simplify and clarify the language and provide
                further clarity on the scope of the alternatives analysis in an EIS.
                Specifically, CEQ proposed to revise the introductory paragraph to
                remove the colloquial language, including ``heart of'' the EIS and
                ``sharply defining,'' and clarify that the alternatives section of the
                EIS should present the environmental impacts in comparative form. CEQ
                makes these changes in the final rule.
                 In paragraph (a), CEQ proposed to delete ``all'' before
                ``reasonable alternatives'' and add ``to the proposed action''
                afterward for clarity because NEPA does not require consideration of
                all alternatives and does not provide specific guidance concerning the
                range of alternatives an agency must consider for each proposal.
                Section 102(2)(C) provides only that an agency should prepare a
                detailed statement addressing, among other things, ``alternatives to
                the proposed action.'' 42 U.S.C. 4332(2)(C). Section 102(2)(E) requires
                only that agencies ``study, develop, and describe appropriate
                alternatives to recommended courses of action.'' 42 U.S.C. 4332(2)(E).
                Implementing this limited statutory direction, CEQ has long advised
                that ``[w]hen there are potentially a very large number of
                alternatives, only a reasonable number of examples, covering the full
                spectrum of alternatives, must be analyzed and compared in the EIS.''
                Forty Questions, supra note 2, at Question 1b. CEQ makes this change in
                the final rule and rephrases paragraph (a) from passive to active
                voice.
                 As stated in the NPRM, it is CEQ's view that NEPA's policy goals
                are satisfied when an agency analyzes reasonable alternatives, and that
                an EIS need not include every available alternative where the
                consideration of a spectrum of alternatives allows for the selection of
                any alternative within that spectrum. The reasonableness of the
                analysis of alternatives in a final EIS is resolved not by any
                particular number of alternatives considered, but by the nature of the
                underlying agency action and by the inherent practical limitations of
                the decision-making process. The discussion of environmental effects of
                alternatives need not be exhaustive, but must provide information
                sufficient to permit a reasoned choice of alternatives for the agency
                to evaluate available reasonable alternatives including significant
                alternatives that are called to its attention by other agencies,
                organizations, communities, or a member of the public.\92\ As discussed
                in section II.C.8, to aid agencies in identification of alternatives,
                Sec. 1501.9, ``Scoping,'' requires agencies to request identification
                of potential alternatives in the NOI. Analysis of alternatives also may
                serve purposes other than NEPA compliance, such as evaluation of the
                least environmentally damaging practicable alternative for the
                discharge of dredged or fill material under section 404(b)(1) of the
                Clean Water Act, 33 U.S.C. 1344(b)(1).
                ---------------------------------------------------------------------------
                 \92\ Additionally, by crafting alternatives, agencies can
                ``bound'' different options and develop information on intermediate
                options that occupy the logical space in between different formal
                alternatives. See, e.g., H.A. Simon, ``Bounded Rationality,'' in
                Utility and Probability (J. Eatwell, M. Milgate, & P. Newman P. eds.
                1990).
                ---------------------------------------------------------------------------
                 The number of alternatives that is appropriate for an agency to
                consider will vary. For some actions, such as where the Federal
                agency's authority to consider alternatives is limited by statute, the
                range of alternatives may be limited to the proposed action and the no
                action alternative. For actions where the Federal authority to consider
                a range of alternatives is broad, the final EIS itself should consider
                a broader range of reasonable alternatives. However, a process of
                narrowing alternatives is in accord with NEPA's ``rule of reason'' and
                common sense--agencies need not reanalyze alternatives previously
                rejected, particularly when an earlier analysis of numerous reasonable
                alternatives was incorporated into the final analysis and the agency
                has considered and responded to public comment favoring other
                alternatives. Furthermore, agencies should limit alternatives to those
                available to the decision maker at the time of decision.
                 For consistency with this change, CEQ proposed to strike ``the''
                before ``reasonable alternatives'' in Sec. 1502.1, and amend Sec.
                1502.16, ``Environmental consequences,'' to clarify in proposed
                paragraph (a)(1) that the discussion must include the environmental
                impacts of the ``proposed action and reasonable alternatives.'' CEQ
                makes these changes in the final rule.
                 In response to CEQ's ANPRM, some commenters urged that the
                regulations should not require agencies to account for impacts over
                which the agency has no control, including those resulting from
                alternatives outside its jurisdiction. CEQ proposed to strike 40 CFR
                1502.14(c) requiring consideration of reasonable alternatives not
                within the jurisdiction of the lead agency for all EISs because it is
                not efficient or reasonable to require agencies to develop detailed
                analyses relating to alternatives outside the jurisdiction of the lead
                agency. CEQ removes this paragraph in the final rule. Further, the new
                definition of ``reasonable alternatives'' excludes alternatives outside
                the agency's jurisdiction when they would not be technically feasible
                due to the agency's lack of statutory authority to implement that
                alternative. However, an agency may discuss reasonable alternatives not
                within its jurisdiction when necessary for the agency's decision-making
                process such as when preparing an EIS to address
                [[Page 43331]]
                legislative EIS requirements pursuant to Sec. 1506.8 and to address
                specific congressional directives.
                 A concern raised by many ANPRM commenters is that agencies have
                limited resources and that it is important that agencies use those
                resources effectively. The provisions inviting commenters to identify
                potential alternatives will help to inform agencies as to how many
                alternatives are reasonable to consider, and allow agencies to assess
                whether any particular submitted alternative is reasonable to consider.
                Analyzing a large number of alternatives, particularly where it is
                clear that only a few alternatives would be economically and
                technically feasible and could be realistically implemented by the
                applicant, can divert limited agency resources. CEQ invited comment on
                whether the regulations should establish a presumptive maximum number
                of alternatives for evaluation of a proposed action, or alternatively
                for certain categories of proposed actions. CEQ sought comment on (1)
                specific categories of actions, if any, that should be identified for
                the presumption or for exceptions to the presumption; and (2) what the
                presumptive number of alternatives should be (e.g., a maximum of three
                alternatives including the no action alternative). CEQ did not receive
                sufficient information to establish a minimum, but adds a new paragraph
                (f) to the final rule to state that agencies shall limit their
                consideration to a reasonable number of alternatives. The revisions to
                the regulations to promote earlier solicitation of information and
                identification of alternatives, and timely submission of comments, will
                assist agencies in establishing how many alternatives are reasonable to
                consider and assessing whether any particular submitted alternative is
                reasonable to consider.
                15. Affected Environment (Sec. 1502.15)
                 CEQ proposed in Sec. 1502.15, ``Affected environment,'' to
                explicitly allow for combining of affected environment and
                environmental consequences sections to adopt what has become a common
                practice in some agencies. This revision would ensure that the
                description of the affected environment focuses on those aspects of the
                environment that the proposed action affects. CEQ makes this change in
                the final rule. Additionally, the final rule adds a clause to emphasize
                that the affected environment includes reasonably foreseeable
                environmental trends and planned actions in the affected areas. This
                change responds to comments raising concerns that eliminating the
                definition of cumulative impact (40 CFR 1508.7) would result in less
                consideration of changes in the environment. To the extent
                environmental trends or planned actions in the area(s) are reasonably
                foreseeable, the agency should include them in the discussion of the
                affected environment. Consistent with current agency practice, this
                also may include non-Federal planned activities that are reasonably
                foreseeable.
                 In response to the NPRM, commenters expressed concerns that impacts
                of climate change on a proposed project would no longer be taken into
                account. Under the final rule, agencies will consider predictable
                environmental trends in the area in the baseline analysis of the
                affected environment. Trends determined to be a consequence of climate
                change would be characterized in the baseline analysis of the affected
                environment rather than as an effect of the action. Discussion of the
                affected environment should be informative but should not be
                speculative.
                16. Environmental Consequences (Sec. 1502.16)
                 CEQ proposed to reorganize Sec. 1502.16, ``Environmental
                consequences.'' CEQ proposed to designate the introductory paragraph as
                paragraph (a), move up the sentence that it should not duplicate the
                alternatives discussion, and create subordinate paragraphs (a)(1)
                through (10) for clarity. In paragraph (a)(1), CEQ proposed to
                consolidate into one paragraph the requirements regarding effects
                scattered throughout 40 CFR 1502.16, including paragraphs (a), (b), and
                (d), to include a discussion of the effects of the proposed action and
                reasonable alternatives. Also consistent with the definition of
                effects, CEQ proposed to strike references to direct, indirect, and
                cumulative effects. The combined discussion should focus on those
                effects that are reasonably foreseeable and have a reasonably close
                causal relationship to the proposed action, consistent with the
                proposed revised definition of effects addressed in Sec. 1508.1(g).
                CEQ proposed to move 40 CFR 1502.16(c) and (e) through (h) to be
                paragraphs (a)(5) through (9). To align with the statute, CEQ also
                proposed to add a new paragraph (a)(10) to provide that discussion of
                environmental consequences should include, where applicable, economic
                and technical considerations consistent with section 102(2)(B) of NEPA.
                CEQ makes these changes in the final rule with minor edits to clarify
                that ``this section'' in paragraph (a) refers to the ``environmental
                consequences'' section; address the dangling modifier, ``their
                significance,'' in paragraph (a)(1); correct the usage of ``which'' and
                ``that'' throughout; and clarify the language in paragraph (b).
                 Further, CEQ proposed to move the operative language that addresses
                when agencies need to consider economic and social effects in EISs from
                the definition of human environment in 40 CFR 1508.14 to proposed Sec.
                1502.16(b). CEQ also proposed to amend the language for clarity,
                explain that the agency makes the determination of when consideration
                of economic and social effects is interrelated with consideration of
                natural or physical environmental effects at which point the agency
                should give appropriate consideration to those effects, and strike
                ``all of'' as unnecessary. CEQ makes these changes in the final rule.
                17. Submitted Alternatives, Information, and Analyses (Sec. 1502.17)
                 To ensure agencies have considered the alternatives, information,
                and analyses submitted by the public, including State, Tribal, and
                local governments as well as individuals and organizations, CEQ
                proposed to add a new Sec. 1502.17 to require a new ``submitted
                alternatives, information, and analyses'' section in draft and final
                EISs. CEQ includes this new provision in the final rule with some
                modifications to separate the requirements for draft and final EISs, as
                discussed in this section.
                 To ensure agencies receive and consider relevant information as
                early in the process as possible, Sec. 1501.9, ``Scoping,'' requires
                agencies to specifically solicit such information in their notices of
                intent. Under Sec. 1502.17, agencies must include a summary in the EIS
                identifying all alternatives, information, and analyses the agency
                received from State, Tribal, and local governments and other public
                commenters. In developing the summary, agencies may refer to other
                relevant sections of the EIS or to appendices. A new paragraph (a)(1)
                requires agencies to append to the draft EIS or otherwise publish the
                comments received during scoping and, consistent with the proposed
                rule, paragraph (a)(2) requires the lead agency to invite comment on
                the summary. Finally, paragraph (b) requires agencies to prepare a
                summary in the final EIS based on all comments received on the draft
                EIS.
                 CEQ proposed to require in a new Sec. 1502.18, ``Certification of
                alternatives, information, and analyses section,'' that, informed by
                the alternatives, information, and analyses section
                [[Page 43332]]
                required under Sec. 1502.17, the decision maker for the lead agency
                certify that the agency has considered such information and include the
                certification in the ROD under proposed Sec. 1505.2(e). CEQ moves this
                provision to Sec. 1505.2(b) in the final rule, as discussed in further
                detail in section II.G.2.
                18. List of Preparers (Sec. 1502.18)
                 CEQ proposed to move ``List of preparers'' from Sec. 1502.17 to
                Sec. 1502.19 to accommodate the two new sections addressing submitted
                alternatives, information, and analyses. The final rule moves this
                section to Sec. 1502.18 and makes minor revisions to change the
                language from passive to active voice and remove the erroneous cross-
                references.
                19. Appendix (Sec. 1502.19)
                 CEQ proposed to move ``Appendix'' from Sec. 1502.18 to Sec.
                1502.20 and revise the language for clarity. The final rule moves this
                provision to Sec. 1502.19 with additional clarifying revisions. The
                final rule also adds a new paragraph (d) to reflect the potential
                appendix for scoping comments on alternatives, information, and
                analyses pursuant to Sec. 1502.17(a)(1) and a new paragraph (e) for
                the potential appendix of draft EIS comments pursuant to Sec. Sec.
                1503.1 and 1503.4(b).
                20. Publication of the Environmental Impact Statement (Sec. 1502.20)
                 CEQ proposed to move ``Circulation of the environmental impact
                statement'' from Sec. 1502.19 to Sec. 1502.21 and retitle it
                ``Publication of the environmental impact statement.'' CEQ moves this
                to Sec. 1502.20 in the final rule. CEQ proposed to modernize this
                provision, changing circulate to publish and eliminating the option to
                circulate the summary of an EIS given that agencies electronically
                produce most EISs. CEQ proposed to require agencies to transmit the EIS
                electronically, but provide for paper copies by request. CEQ makes
                these changes in the final rule.
                21. Incomplete or Unavailable Information (Sec. 1502.21)
                 CEQ proposed several revisions to proposed Sec. 1502.22,
                ``Incomplete or unavailable information,'' which CEQ redesignates as
                Sec. 1502.21 in the final rule. Specifically, CEQ proposed to further
                subdivide the paragraphs for clarity and strike the word ``always''
                from paragraph (a) as unnecessarily limiting and inconsistent with the
                rule of reason, and replaced the term ``exorbitant'' with
                ``unreasonable'' in paragraphs (b) and (c), which is consistent with
                CEQ's description of ``overall cost'' considerations in its 1986
                promulgation of amendments to this provision.\93\ CEQ reiterates that
                the term ``overall cost'' as used in this section includes ``financial
                costs and other costs such as costs in terms of time (delay) and
                personnel.'' \94\ CEQ invited comment on whether the ``overall costs''
                of obtaining incomplete of unavailable information warrants further
                definition to address whether certain costs are or are not
                ``unreasonable.'' CEQ does not include any definition in the final
                rule.
                ---------------------------------------------------------------------------
                 \93\ 51 FR at 15622 (Apr. 25, 1986).
                 \94\ Id.
                ---------------------------------------------------------------------------
                 For clarity and in response to comments, the final rule inserts
                ``but available'' in paragraph (b) to clarify that agencies will
                continue to be required to obtain available information essential to a
                reasoned choice between alternatives where the overall costs are not
                unreasonable and the means of obtaining that information are known.\95\
                New scientific or technical research is unavailable information and is
                addressed in Sec. 1502.23. Where the overall costs are unreasonable or
                means of obtaining the information are not known, agencies will
                continue to be required to disclose in the EIS that information is
                incomplete or unavailable and provide additional information to assist
                in analyzing the reasonably foreseeable significant adverse impacts.
                However, Sec. 1502.23 does not require agencies to undertake new
                scientific and technical research to inform their analyses.
                ---------------------------------------------------------------------------
                 \95\ See, e.g. Pub. Citizen, 541 U.S. at 767 (``Also, inherent
                in NEPA and its implementing regulations is a `rule of reason,'
                which ensures that agencies determine whether and to what extent to
                prepare an EIS based on the usefulness of any new potential
                information to the decision[-]making process.''); see also Marsh,
                490 U.S. at 373-74 (agencies should apply a ``rule of reason'').
                ---------------------------------------------------------------------------
                 Finally, CEQ proposed to eliminate 40 CFR 1502.22(c) addressing the
                applicability of the 1986 amendments to this section because this
                paragraph is obsolete. CEQ does not include this provision in the final
                rule.
                22. Cost-Benefit Analysis (Sec. 1502.22)
                 CEQ did not propose changes to the cost-benefit analysis section
                other than an update to the citation. In the final rule, CEQ moves this
                provision from Sec. 1502.23 to Sec. 1502.22 and adds a parenthetical
                after ``section 102(2)(B) of NEPA'' that paraphrases the statutory text
                relating to considering unquantified environmental amenities and values
                along with economic and technical considerations. This is consistent
                with the policy established in section 101(a), which also refers to
                fulfilling the social, economic, and other requirements of present and
                future generations of Americans. Finally, CEQ revises the language for
                clarity, including changing from passive to active voice.
                23. Methodology and Scientific Accuracy (Sec. 1502.23)
                 CEQ proposed revisions to update proposed Sec. 1502.24, which CEQ
                redesigantes Sec. 1502.23 in the final rule. The NPRM proposed to
                broaden this provision to environmental documents and CEQ makes this
                change in the final rule. CEQ proposed to clarify that agencies must
                make use of reliable existing data and resources when they are
                available and appropriate. CEQ also proposed to revise this section to
                allow agencies to draw on any source of information (such as remote
                sensing and statistical modeling) that the agency finds reliable and
                useful to the decision-making process. As noted in the NPRM, these
                changes will promote the use of reliable data, including information
                gathered using modern technologies. CEQ makes these changes in the
                final rule with minor changes. The final rule revises the sentence
                regarding placing the discussion of methodology in an appendix from
                singular to plural for consistency with the rest of the language in
                this section. In response to comments, CEQ moves the proposed sentence
                regarding new scientific and technical research to a new sentence at
                the end of the section and adds a sentence clarifying that nothing in
                this provision is intended to prohibit agencies from compliance with
                the requirements of other statutes pertaining to scientific and
                technical research. Agencies must continue to conduct surveys and
                collect data where required by other statutes.
                24. Environmental Review and Consultation Requirements (Sec. 1502.24)
                 CEQ proposed to revise this section to clarify that agencies must
                integrate, to the fullest extent possible, their NEPA analysis with all
                other applicable Federal environmental review laws and Executive orders
                in furtherance of the OFD policy established by E.O. 13807 and to make
                the environmental review process more efficient.\96\ CEQ redesignates
                this section in the final rule to Sec. 1502.24, updates a statutory
                [[Page 43333]]
                citation, and revises the text as proposed.
                ---------------------------------------------------------------------------
                 \96\ The Permitting Council has compiled a list of environmental
                laws and Executive orders that may apply to a proposed action. See
                Federal Environmental Review and Authorization Inventory, https://www.permits.performance.gov/tools/federal-environmental-review-and-authorization-inventory.
                ---------------------------------------------------------------------------
                E. Revisions to Commenting on Environmental Impact Statements (Part
                1503)
                 Section 102(2)(C) of NEPA requires that agencies obtain views of
                Federal agencies with jurisdiction by law or expertise with respect to
                any environmental impact, and also directs that agencies make copies of
                the EIS and the comments and views of appropriate Federal, State, and
                local agencies available to the President, CEQ and the public. 42
                U.S.C. 4332(2)(C). Part 1503 of the CEQ regulations include provisions
                relating to inviting and responding to comments. CEQ proposed to
                modernize part 1503 given modern technologies not available at the time
                of the 1978 regulations. In particular, the proposed regulations
                encouraged agencies to use the current methods of electronic
                communication both to publish important environmental information and
                to structure public participation for greater efficiency and inclusion
                of interested persons. Additionally, CEQ proposed changes to encourage
                commenters to provide information early and to require comments to be
                as specific as possible to ensure agencies can consider them in their
                decision-making process. CEQ finalizes many of the proposed changes
                with modifications as this section discusses in further detail.
                1. Inviting Comments and Requesting Information and Analyses (Sec.
                1503.1)
                 CEQ proposed to retitle and revise Sec. 1503.1, ``Inviting
                comments and requesting information and analyses,'' to better reach
                interested and affected parties and ensure agencies receive the
                relevant information they need to complete their analyses. CEQ proposed
                to revise paragraphs (a)(2)(i) and (ii) to include State, Tribal and
                local agencies and governments to be comprehensive and consistent with
                the addition of ``Tribal'' as discussed in section II.A. CEQ proposed
                to eliminate the obsolete reference to OMB Circular A-95 from paragraph
                (a)(2)(iii) and move paragraphs (a)(3) and (4) to (a)(2)(iv) and (v),
                respectively, since these are additional parties from which agencies
                should request comments. CEQ also proposed in paragraph (a)(2)(v) to
                give agencies flexibility to tailor their public involvement process to
                more effectively reach interested and affected parties by soliciting
                comments ``in a manner designed to inform'' parties interested or
                affected ``by the proposed action.'' CEQ makes these changes in the
                final rule.
                 CEQ also proposed to add a new paragraph (a)(3) that requires
                agencies to specifically invite comment on the completeness of the
                submitted alternatives, information and analyses section (Sec.
                1502.17). CEQ includes this new paragraph in the final rule with
                revisions to clarify that agencies should invite comments on the
                submitted alternatives, information, and analyses generally as well as
                the summary required under Sec. 1502.17, rather than on the
                completeness of the summary, as proposed. Interested parties who may
                seek to challenge the agency's decision have an affirmative duty to
                comment during the public review period in order for the agency to
                consider their positions. See Vt. Yankee, 435 U.S. at 553.
                 In paragraph (b), CEQ proposed to require agencies to provide a 30-
                day comment period on the final EIS's submitted alternatives,
                information and analyses section. As noted in the discussion of Sec.
                1500.3(b) in section II.B.3, CEQ does not include this requirement in
                the final rule. However, the final rule adds language that if an agency
                requests comments on a final EIS before the final decision, the agency
                should set a deadline for such comments. This provides agencies the
                flexibility to request comments on a final EIS. Agencies may use this
                option where it would be helpful to inform the agency's decision making
                process.
                 Finally, CEQ proposed a new paragraph (c) to require agencies to
                provide for commenting using electronic means while ensuring
                accessibility to those who may not have such access to ensure adequate
                notice and opportunity to comment. CEQ includes this proposed paragraph
                in the final rule.
                2. Duty To Comment (Sec. 1503.2)
                 Section 1503.2, ``Duty to comment,'' addresses the obligations of
                other agencies to comment on an EIS. CEQ proposed to clarify that this
                provision applies to cooperating agencies and agencies authorized to
                develop and enforce environmental standards. CEQ makes this change in
                the final rule and makes additional revisions to change the language
                from passive to active voice.
                3. Specificity of Comments and Information (Sec. 1503.3)
                 CEQ proposed to revise paragraph (a) and retitle Sec. 1503.3,
                ``Specificity of comments and information,'' to explain that the
                purposes of comments is to promote informed decision making and further
                clarify that comments should provide sufficient detail for the agency
                to consider the comment in its decision-making process. See Pub.
                Citizen, 541 U.S. at 764; Vt. Yankee, 435 U.S. at 553 (while ``NEPA
                places upon an agency the obligation to consider every significant
                aspect of the environmental impact of a proposed action, it is still
                incumbent upon [parties] who wish to participate to structure their
                participation so that it is meaningful, so that it alerts the agency to
                the [parties'] position . . . .''). CEQ also proposed in this paragraph
                that comments should explain why the issues raised are significant to
                the consideration of potential environmental impacts and alternatives
                to the proposed action, as well as economic and employment impacts, and
                other impacts affecting the quality of the human environment. In
                addition, CEQ proposed in this paragraph that comments should reference
                the section or page of the draft EIS, propose specific changes to those
                parts of the statement, where possible, and include or describe the
                data sources and methodologies supporting the proposed changes. See Vt.
                Yankee, 435 U.S. at 553 (``[Comments] must be significant enough to
                step over a threshold requirement of materiality before any lack of
                agency response or consideration becomes a concern. The comment cannot
                merely state that a particular mistake was made . . . ; it must show
                why the mistake was of possible significance in the results . . . .''
                (quoting Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C.
                Cir. 1973)). CEQ includes these changes in the final rule to ensure
                that agencies are alerted to all interested and affected parties'
                concerns, but changes ``significant'' to ``important'' issues in the
                second sentence to avoid confusion with significant effects. Nothing in
                these revisions should be construed to limit public comment to those
                members of the public with scientific or technical expertise, and
                agencies should continue to solicit comment from all interested and
                affected members of the public. Consistent with the goal of promoting a
                manageable process and a meaningful focus on pertinent issues, CEQ also
                clarifies that commenters should submit information and raise issues as
                early in the process as possible, including during scoping to the
                extent practicable. Commenters should timely submit all comments and
                make their comments as specific as possible to promote informed and
                timely decision making.
                 CEQ also proposed a new paragraph (b) to emphasize that comments on
                the submitted alternatives, information, and analyses section should
                identify any additional alternatives, information, or
                [[Page 43334]]
                analyses not included in the draft EIS, and should be as specific as
                possible. The proposal required comments and objections to be raised
                within 30 days of publication of the notice of availability of the
                final EIS and noted that comments and objections not provided within
                those 30 days are considered exhausted and forfeited under Sec.
                1500.3(b). In the final rule, CEQ includes this paragraph with some
                changes. The final rule provides that comments should be on the
                submitted alternatives, information, and analyses themselves as well as
                the summary that Sec. 1502.17 requires and be as specific as possible.
                It further provides that comments and objections on the draft EIS must
                be raised within the comment period provided by the agency, consistent
                with Sec. 1506.11. The final rule does not include the 30-day comment
                period, as discussed in sections II.B.3 and II.E.1; however, it
                provides that if the agency requests comments on the final EIS,
                comments and objections must be raised within the comment period. The
                final rule also provides that comments and objections not provided
                within the relevant comment periods are considered unexhausted and
                forfeited under Sec. 1500.3(b).
                 CEQ proposed to change ``commenting'' agency to ``participating''
                agency in paragraph (c), and ``entitlements'' to ``authorizations'' in
                paragraph (d). CEQ makes these changes in the final rule. Finally, CEQ
                proposed to broaden paragraph (e) to require cooperating agencies with
                jurisdiction by law to specify the mitigation measures they consider
                necessary for permits, licenses, or related requirements, including the
                applicable statutory authority. CEQ includes this change in the final
                rule because it will provide greater transparency and clarity to the
                lead agency and the public when mitigation is required under another
                statute.
                4. Response to Comments (Sec. 1503.4)
                 In practice, the processing of comments can require substantial
                time and resources. CEQ proposed to amend Sec. 1503.4, ``Response to
                comments,'' to simplify and clarify in paragraph (a) that agencies are
                required to consider substantive comments timely submitted during the
                public comment period. CEQ also proposed to clarify that an agency may
                respond to comments individually or collectively. Consistent with this
                revision, CEQ proposed to clarify that, in the final EIS, agencies may
                respond by a variety of means, and to strike the detailed language in
                paragraph (a)(5) relating to comments that do not warrant further
                agency response. CEQ includes these changes with some modifications in
                the final rule. Specifically, CEQ changes ``individually'' to
                ``individual'' and ``collectively'' to ``groups of comments'' to
                clarify that agencies may respond to individual comments or group and
                respond once to a group of comments addressing the same issue. CEQ also
                modifies paragraph (a) introductory text to make clear that the list in
                paragraphs (a)(1) through (5) is how the agency may respond to
                comments. Finally, CEQ adds a clause to paragraph (a)(5) to reinforce
                that agencies do not have to respond to each comment individually.
                Under the 1978 regulations, agencies have had flexibility in how they
                structure their responses to comments, and CEQ does not consider this
                clarification to be a change in position.
                 CEQ proposed to clarify in paragraph (b) that agencies must append
                comments and responses to EISs rather than including them in the body
                of the EIS, or otherwise publish them. Under current practice, some
                agencies include these comment responses in the EISs themselves, which
                can contribute to excessive length. See CEQ Length of EISs Report,
                supra note 38. CEQ makes this change in the final rule. As noted in the
                NPRM, these changes do not preclude an agency from summarizing or
                discussing specific comments in the EIS as well.
                 Finally, CEQ proposed to amend paragraph (c) for clarity. CEQ makes
                the proposed changes and additional clarifying edits in the final rule.
                F. Revisions to Pre-Decisional Referrals to the Council of Proposed
                Federal Actions Determined To Be Environmentally Unsatisfactory (Part
                1504)
                 CEQ proposed edits to part 1504, ``Pre-decisional Referrals to the
                Council of Proposed Federal Actions Determined to be Environmentally
                Unsatisfactory,'' to improve clarity, including grammatical
                corrections. CEQ also proposed to reference specifically EAs in this
                part. Although infrequent, agencies have made referrals to CEQ on EAs.
                CEQ also proposed a minor revision to the title of part 1504, striking
                ``Predecision'' and inserting ``Pre-decisional.'' CEQ makes these
                changes in the final rule.
                1. Purpose (Sec. 1504.1)
                 Section 1504.1, ``Purpose,'' addresses the purpose of part 1504,
                including CEQ referrals by the EPA. Section 309 of the Clean Air Act
                (42 U.S.C. 7609) requires EPA to review and comment on certain proposed
                actions of other Federal agencies and to make those comments public.
                Where appropriate, EPA may exercise its authority under section 309(b)
                of the Clean Air Act and refer the matter to CEQ, as stated in
                paragraph (b). The final rule revises this paragraph for clarity,
                changing it from passive to active voice. Paragraph (c) provides that
                other Federal agencies also may prepare such reviews. In the NPRM, CEQ
                proposed to change ``may make'' to ``may produce'' in this paragraph.
                The final rule changes this phrase to ``may prepare'' since ``prepare''
                is the commonly used verb in these regulations.
                2. Criterial for Referral (Sec. 1504.2)
                 CEQ proposed to change ``possible'' to ``practicable'' in the
                introductory paragraph of Sec. 1504.2, ``Criteria for referral.'' CEQ
                makes this change in the final rule as discussed in section II.A.
                Consistent with the NEPA statute, CEQ proposed to add economic and
                technical considerations to paragraph (g) of Sec. 1504.2, ``Criteria
                for referrals.'' CEQ includes this change in the final rule.
                3. Procedure for Referrals and Response (Sec. 1504.3)
                 In Sec. 1504.3, ``Procedure for referrals and response,'' CEQ
                proposed changes to simplify and modernize the referral process to
                ensure it is timely and efficient. CEQ proposed to change the language
                in this section from passive to active voice and make other clarifying
                edits to the language. CEQ includes these changes with some additional
                clarifying edits in the final rule. Specifically, in paragraphs (a)(1)
                and (2), CEQ changes ``advise'' and ``such advice'' to ``notify'' and
                ``a notification'' respectively. CEQ proposed to eliminate the
                exception in paragraph (a)(2) for statements that do not contain
                adequate information to permit an assessment of the matter's
                environmental acceptability. CEQ removes this clause in the final rule.
                The referring agency should provide the lead agency and CEQ with as
                much information as possible, including identification of when the
                information is inadequate to permit an assessment. In paragraph (a)(4),
                CEQ changes ``such advice'' to ``the referring agency's views'' in the
                final rule to clarify what the referring agency is sending to CEQ.
                 In paragraph (b), CEQ proposed to change ``commenting agencies'' to
                ``participating agencies,'' a change CEQ proposed throughout the rule,
                and to add a timeframe for referrals of EAs. CEQ makes these changes in
                the final rule. CEQ proposed to strike from paragraph (c)(1) the clause
                requiring the referral request that no action be taken to implement the
                matter until CEQ takes
                [[Page 43335]]
                action. CEQ removes this clause in the final rule because it is
                unnecessarily limiting. Agencies should have the flexibility to
                determine what they are requesting of the lead agency when making a
                referral, which may include a request not to take any action on the
                matter.
                 CEQ proposed to change ``material facts in controversy'' to
                ``disputed material facts'' in paragraph (c)(2)(i) for clarity and to
                simplify paragraph (c)(2)(iii) to focus on the reasons for the
                referral, which may include that the matter is environmentally
                unsatisfactory. CEQ proposed to revise paragraph (d)(2) to emphasize
                that the lead agency's response should include both evidence and
                explanations, as appropriate. CEQ proposed to revise paragraph (e) to
                simplify the process and to provide direction to applicants regarding
                the submittal of their views to the CEQ. CEQ proposed to strike the
                reference to public meetings or hearings in paragraph (f)(3) to provide
                more flexibility to CEQ in how it obtains additional views and
                information, which could include a public meeting or hearing. However,
                there may be other, more effective mechanisms to collect such
                information, including through use of current technologies. CEQ makes
                these changes in the final rule.
                 Finally, CEQ proposed to modify paragraph (h) to clarify that the
                referral process is not a final agency action that is judicially
                reviewable and to remove the requirement that referrals be conducted
                consistent with the APA where a statute requires that an action be
                determined on the record after an opportunity for a hearing. Where
                other statutes govern the referral process, those statutes continue to
                apply, and these regulations do not need to speculate about what
                process might be required. Therefore, CEQ eliminates this language in
                the final rule and replaces it with the clarification that the referral
                process does not create a private right of action because, among other
                considerations, there is no final agency action.
                G. Revisions to NEPA and Agency Decision Making (Part 1505)
                1. Remove and Reserve Agency Decisionmaking Procedures (Sec. 1505.1)
                 In the NPRM, CEQ proposed to move the text of 40 CFR 1505.1,
                ``Agency decisionmaking procedures,'' to Sec. 1507.3(b). As discussed
                further in section II.I.3, CEQ makes this change in the final rule and
                reserves Sec. 1505.1 for future use.
                2. Record of Decision in Cases Requiring Environmental Impact
                Statements (Sec. 1505.2)
                 CEQ proposed to redesignate the introductory paragraph of Sec.
                1505.2, ``Record of decision in cases requiring environmental impact
                statements,'' as paragraph (a) and revise it to require agencies to
                ``timely publish'' a ROD. CEQ also proposed to clarify that the CEQ
                regulations allow for ``joint'' RODs by two or more Federal agencies;
                this change is also consistent with the OFD policy and E.O. 13807.
                Finally, CEQ proposed to remove references to OMB Circular A-95 as
                noted previously in section II.A.
                 CEQ proposed clarifying edits to proposed paragraphs (a) and (c)
                (paragraphs (a)(1) and (3) in the final rule) to change from passive to
                active voice for clarity. The final rule makes these changes in
                paragraphs (a)(1), (2), and (3) in the final rule. The final rule also
                removes ``all'' before ``alternatives'' in paragraph (a)(2) for
                consistency with the same change in Sec. 1502.14(a).
                 CEQ proposed to include a requirement in proposed paragraph (d) to
                require agencies to respond to any comments on the submitted
                alternatives, information, and analyses section in the final EIS. As
                discussed in sections II.B.3 and II.E.1, CEQ does not include the
                proposed 30-day comment period in the final rule; therefore, CEQ is not
                including proposed Sec. 1505.2(d) in the final rule.
                 In the NPRM, proposed paragraph (e) would require the ROD to
                include the decision maker's certification regarding consideration of
                the submitted alternatives, information, and analyses section, which
                proposed Sec. 1502.18 required. The final rule replaces what was
                proposed paragraph (e) with the language moved from proposed Sec.
                1502.18, ``Certification of alternatives, information, and analyses
                section,'' in paragraph (b). In the NPRM, Sec. 1502.18 stated that,
                based on the alternatives, information, and analyses section required
                under Sec. 1502.17, the decision maker for the lead agency must
                certify that the agency has considered such information and include the
                certification in the ROD under Sec. 1505.2(d) (as proposed). This
                provision also proposed a conclusive presumption that the agency has
                considered information summarized in that section because it is
                reasonable to presume the agency has considered such information based
                on the process to request and summarize public comments on the
                submitted alternatives, information, and analyses.
                 CEQ modifies the proposed text of Sec. 1502.18 in the final rule
                and in paragraph (b) of Sec. 1505.2 to clarify that the decision
                maker's certification in the ROD is informed by the summary of
                submitted alternatives, information, and analyses in the final EIS and
                any other material in the record that the decision maker determines to
                be relevant. This includes both the draft and final EIS as well as any
                supporting materials incorporated by reference or appended to the
                document. The final rule also changes ``conclusive presumption'' to a
                ``presumption'' and clarifies that the agency is entitled to a
                presumption that it has considered the submitted alternatives,
                information, and analyses, including the summary thereof in the final
                EIS. Establishing a rebuttable presumption will give appropriate weight
                to the process that culminates in the certification, while also
                allowing some flexibility in situations where essential information may
                have been inadvertently overlooked. The presumption and associated
                exhaustion requirement also will encourage commenters to provide the
                agency with all available information prior to the agency's decision,
                rather than disclosing information after the decision is made or in
                subsequent litigation. This is important for the decision-making
                process and efficient management of agency resources.
                3. Implementing the Decision (Sec. 1505.3)
                 CEQ proposed minor edits to Sec. 1505.3, ``Implementing the
                decision'' to change ``commenting'' agencies to ``participating'' in
                paragraph (c) and ``make available to the public'' to ``publish'' in
                paragraph (d). CEQ makes these changes in the final rule.
                H. Revisions to Other Requirements of NEPA (Part 1506)
                 CEQ proposed a number of edits to part 1506 to improve the NEPA
                process to make it more efficient and flexible, especially where
                actions involve third-party applicants. CEQ also proposed several edits
                for clarity. CEQ finalizes many of these proposed changes in the final
                rule with some additional clarifying edits.
                1. Limitations on Actions During NEPA Process (Sec. 1506.1)
                 CEQ proposed to add FONSIs to paragraph (a) of Sec. 1506.1,
                ``Limitations on actions during NEPA process,'' to clarify existing
                practice and judicial determinations that the limitation on actions
                applies when an agency is preparing an EA as well as an EIS. CEQ
                proposed to consolidate paragraph (d) with paragraph (b) and revise the
                [[Page 43336]]
                language to provide additional clarity on what activities are allowable
                during the NEPA process. Specifically, CEQ proposed to eliminate
                reference to one specific agency, broadening the provision to all
                agencies and providing that this section does not preclude certain
                activities by an applicant to support an application of Federal, State,
                Tribal, or local permits or assistance. As an example of activities an
                applicant may undertake, CEQ proposed to add ``acquisition of interests
                in land,'' which includes acquisitions of rights-of-way and
                conservation easements. CEQ invited comment on whether it should make
                any additional changes to Sec. 1506.1, including whether there are
                circumstances under which an agency may authorize irreversible and
                irretrievable commitments of resources. CEQ finalizes this provision as
                proposed with minor grammatical changes, and simplifying the references
                in paragraphs (c) introductory text and (c)(2) from programmatic
                environmental impact ``statement'' to ``review.''
                2. Elimination of Duplication With State, Tribal, and Local Procedures
                (Sec. 1506.2)
                 CEQ proposed revisions to Sec. 1506.2, ``Elimination of
                duplication with State, Tribal, and local procedures'' to promote
                efficiency and reduce duplication between Federal and State, Tribal,
                and local requirements. These changes are consistent with the
                President's directive in E.O. 13807 to provide for agency use, to the
                maximum extent permitted by law, of environmental studies, analysis,
                and decisions in support of earlier Federal, State, Tribal, or local
                environmental reviews or authorization decisions. E.O. 13807, sec.
                5(e)(i)(C). CEQ proposed to revise paragraph (a) to acknowledge the
                increasing number of State, Tribal, and local governments conducting
                NEPA reviews pursuant to assignment from Federal agencies. See, e.g.,
                23 U.S.C. 327, and 25 U.S.C. 4115 and 5389(a). CEQ makes this change in
                the final rule. The revision in paragraph (a) clarifies that Federal
                agencies are authorized to cooperate with such State, Tribal, and local
                agencies, and paragraph (b) requires cooperation to reduce duplication.
                 CEQ proposed to add examples to paragraph (b) to encourage use of
                prior reviews and decisions and modify paragraph (c) to give agencies
                flexibility to determine whether to cooperate in fulfilling State,
                Tribal, or local EIS or similar requirements. CEQ includes these
                proposed changes in the final rule and reorders the language to provide
                additional clarity. Additionally, the final rule makes further changes
                to paragraph (b) to remove potential impediments for agency use of
                studies, analysis, and decisions developed by State, Tribal, and local
                government agencies. Some commenters stated that CEQ proposed to limit
                agency use to only environmental studies, analysis, and decisions and
                exclude socio-economic and other information. The final rule clarifies
                that agencies should make broad use of studies, analysis, and decisions
                prepared by State, Tribal, and local agencies, as appropriate based on
                other requirements including Sec. 1502.23. Finally, CEQ proposed to
                clarify in paragraph (d) that NEPA does not require reconciliation of
                inconsistencies between the proposed action and State, Tribal, or local
                plans or laws, although the EIS should discuss the inconsistencies. CEQ
                makes these revisions in the final rule.
                3. Adoption (Sec. 1506.3)
                 CEQ proposed to expand adoption to EAs, consistent with current
                practice by many agencies, and CE determinations and clarify the
                process for documenting the decision to adopt. CEQ includes these
                proposed changes in the final rule with additional revisions to align
                the language for consistency in each paragraph and better organize
                Sec. 1506.3 by grouping the provisions relating to EISs into paragraph
                (b), EAs in paragraph (c), and CE determinations in paragraph (d).
                 Paragraph (a) includes the general requirement for adoption, which
                is that any adoption must meet the standard for an adequate EIS, EA, or
                CE determination, as appropriate, under the CEQ regulations. CEQ
                proposed to reference EAs in this paragraph. The final rule includes CE
                determinations as well as EAs and reorders the documents for
                consistency with the ordering of paragraphs (b) through (d)--EISs, EAs
                (including portions of EISs or EAs), and CE determinations.
                 CEQ proposed clarifying edits in paragraph (b) and changed
                references from recirculation to republication consistent with this
                change throughout the rule. In the final rule, CEQ subdivides paragraph
                (b) into subordinate paragraphs (b)(1) and (2). Paragraph (b)(1)
                addresses EISs where the adopting agency is not a cooperating agency.
                CEQ moves the cooperating agency exception to republication to
                paragraph (b)(2). Consistent with the proposed rule, this paragraph
                also clarifies that the cooperating agency adopts such an EIS by
                issuing its own ROD.
                 In the NPRM, proposed paragraph (f) would allow an agency to adopt
                another agency's determination that its CE applies to an action if the
                adopting agency's proposed action is substantially the same. CEQ
                includes this provision in paragraph (d) of the final rule with
                clarifying edits. The final rule provides agencies the flexibility to
                adopt another agency's determination that a CE applies to an action
                when the actions are substantially the same to address situations where
                a proposed action would result in a CE determination by one agency and
                an EA and FONSI by another agency. For example, this would be the case
                when two agencies are engaging in similar activities in similar areas
                like small-scale prescribed burns, ecological restoration, and small-
                scale land management practices. Another example is when one agency's
                action may be a funding decision for a proposed project, and another
                agency's action is to consider a permit for the same project.
                 To allow agencies to use one another's CEs without the agency that
                promulgated the CE having to take an action, CEQ also proposed a new
                Sec. 1507.3(e)(5), which would allow agencies to establish a process
                in their NEPA procedures to apply another agency's CE. CEQ notes that
                there was some confusion among commenters regarding the difference
                between the adoption of CEs under Sec. 1506.3 and the provision in
                Sec. 1507.3(f)(5) (proposed Sec. 1507.3(e)(5)).\97\ CEQ has made
                clarifying edits to address this confusion.
                ---------------------------------------------------------------------------
                 \97\ For a discussion of the differences between these two
                provisions, see section I.3 of the Final Rule Response to Comments.
                ---------------------------------------------------------------------------
                 The adoption process in Sec. 1506.3(d) first requires that an
                agency has applied a CE listed in its agency NEPA procedures. Then, the
                adopting agency must verify that its proposed action is substantially
                the same as the action for which it is adopting the CE determination.
                CEQ adds a sentence in Sec. 1507.3(f)(5) of the final rule to clarify
                that agencies may establish a separate process for using another
                agency's listed CE and applying the CE to its proposed actions. The
                final rule also requires the adopting agency to document the adoption.
                Agencies may publish, where appropriate, such documentation or other
                information relating to the adoption.
                4. Combining Documents (Sec. 1506.4)
                 CEQ proposed to amend Sec. 1506.4, ``Combining documents,'' to
                encourage agencies ``to the fullest extent practicable'' to combine
                their environmental documents with other
                [[Page 43337]]
                agency documents to reduce duplication and paperwork. For example, the
                Corps routinely combines EISs with feasibility reports, and agencies
                may use their NEPA documents to satisfy compliance with section 106 of
                the National Historic Preservation Act under 36 CFR 800.8. CEQ includes
                the proposed revisions in the final rule with no changes.
                5. Agency Responsibility for Environmental Documents (Sec. 1506.5)
                 As discussed in the NPRM, CEQ proposed to revise Sec. 1506.5,
                ``Agency responsibility for environmental documents,'' in response to
                ANPRM comments urging CEQ to allow greater flexibility for the project
                sponsor (including private entities) to participate in the preparation
                of NEPA documents under the supervision of the lead agency. CEQ
                proposed updates to give agencies more flexibility with respect to the
                preparation of environmental documents while continuing to require
                agencies to independently evaluate and take responsibility for those
                documents. Under the proposal, applicants and contractors would be able
                to assume a greater role in contributing information and material to
                the preparation of environmental documents, subject to the supervision
                of the agency. However, agencies would remain responsible for taking
                reasonable steps to ensure the accuracy of information prepared by
                applicants and contractors. If a contractor or applicant prepares the
                document, proposed paragraph (c)(1) would require the decision-making
                agency official to provide guidance, participate in the preparation,
                independently evaluate the statement, and take responsibility for its
                content.
                 In the final rule, CEQ retains these concepts, but reorganizes
                Sec. 1506.5 to better communicate the requirements. Specifically,
                paragraph (a) contains a clear statement that the Federal agency is
                ultimately responsible for the environmental document irrespective of
                who prepares it. While this is consistent with the 1978 regulations,
                CEQ provides this direct statement at the beginning of the section to
                respond to comments that suggested agencies would be handing over their
                responsibilities to project sponsors under the proposed rule.
                 Paragraph (b) introductory text and its subordinate paragraphs
                capture the requirements when a project sponsor or contractor prepares
                an environmental document, consolidating requirements for EISs and EAs
                into one because there is no longer a distinction between the
                requirements for each document in this context. Paragraph (b) allows an
                agency to require an applicant to submit environmental information for
                the agency's use in preparing an environmental document or to direct an
                applicant or authorize a contractor to prepare an environmental
                document under the agency's supervision. As noted in the NPRM, CEQ
                intends these changes to improve communication between proponents of a
                proposal for agency action and the officials tasked with evaluating the
                effects of the action and reasonable alternatives, to improve the
                quality of NEPA documents and efficiency of the NEPA process.
                 Paragraph (b)(1) requires agencies to provide guidance to the
                applicant or contractor and participate in the preparation of the NEPA
                document. Paragraph (b)(2) continues to require the agency to
                independently evaluate the information or environmental document and
                take responsibility for its accuracy, scope, and contents. Paragraph
                (b)(3) requires the agency to include the names and qualifications of
                the persons who prepared the environmental document. Adding
                ``qualifications'' is consistent with Sec. 1502.18 and is important
                for transparency. For an EIS, this information would be included in the
                list of preparers as required by Sec. 1502.18, but agencies have
                flexibility on where to include such information in an EA. Paragraph
                (b)(4) requires contractors or applicants preparing EAs or EISs to
                submit a disclosure statement to the lead agency specifying any
                financial or other interest in the outcome of the action, but it need
                not include privileged or confidential trade secrets or other
                confidential business information. In the NPRM, CEQ had proposed to
                remove the requirement for a disclosure statement. In response to
                comments, CEQ is retaining this concept in the final rule, recognizing
                that most applicants will have such a financial interest. However, as
                discussed above, CEQ finds that it is appropriate to allow applicants
                to prepare documents for the sake of efficiency and because agencies
                retain responsibility to oversee and take responsibility for the final
                environmental document.
                6. Public Involvement (Sec. 1506.6)
                 CEQ proposed to update Sec. 1506.6, ``Public involvement,'' to
                give agencies greater flexibility to design and customize public
                involvement to best meet the specific circumstances of their proposed
                actions. The NPRM proposed revisions to paragraphs (b) and (c) to add
                ``other opportunities for public engagement'' to recognize that there
                are other ways to engage with interested and affected parties besides
                hearings and meetings. CEQ finalizes these changes in the final rule
                but changes ``engagement'' to ``involvement'' consistent with the title
                of the section. Additionally, the final rule adds a sentence to these
                paragraphs to require agencies to consider interested and affected
                parties' access to electronic media, such as in rural locations or
                economically distressed areas. CEQ had proposed to state in a new
                paragraph (b)(3)(x) that notice may not be limited solely to electronic
                methods for actions occurring in an area with limited access to high-
                speed internet. However, CEQ is including this more general statement
                in paragraph (b) as it is a consideration for notice generally. In
                paragraph (b)(1), CEQ proposed to change the requirement to mail notice
                in paragraphs (b)(1) and (2) to the more general requirement to
                ``notify'' to give agencies the flexibility to use email or other
                mechanisms to provide such notice. CEQ makes this change in the final
                rule. CEQ also eliminates the requirement in paragraph (b)(2) to
                maintain a list of organizations reasonably expected to be interested
                in actions with effects of national concern because such a requirement
                is unnecessarily prescriptive given that agencies may collect and
                organize contact information for organizations that have requested
                regular notice in another format given advances in technology. In the
                proposed rule, CEQ proposed to change paragraph (b)(3)(i) to modify
                State clearinghouses to State and local agencies, and change paragraph
                (b)(3)(ii) to affected Tribal governments. In the final rule, CEQ
                modifies paragraph (b)(3)(i) to include notice to State, Tribal, and
                local agencies, and paragraph (b)(3)(ii) to include notice to
                interested or affected State, Tribal, and local governments for
                consistency with Sec. 1501.9 and part 1503. CEQ proposed a new
                paragraph (b)(3)(x) to allow for notice through electronic media. CEQ
                includes this provision in the final rule, moving the language
                regarding consideration of access to paragraph (b), as noted
                previously.
                 In addition to the changes described above, CEQ proposed to strike
                the mandatory criteria in paragraph (c) for consideration of when to
                hold or sponsor public hearings or meetings. CEQ is removing this
                language in the final rule because such criteria are unnecessarily
                limiting. Agencies consider many factors in determining the most
                appropriate mechanism for promoting public involvement, including the
                particular location of the proposed action (if one exists), the types
                of effects it may have, and the needs of interested and affected
                parties, and may design their outreach in a manner that
                [[Page 43338]]
                best engages with those parties. The flexibility to consider relevant
                factors is critical especially in light of unexpected circumstances,
                such as the COVID-19 pandemic, which may require agencies to adapt
                their outreach as required by State, Tribal, and local authorities and
                conditions.
                 Finally, CEQ proposed to simplify paragraph (f) to require agencies
                to make EISs, comments and underlying documents available to the public
                consistent with the Freedom of Information Act (FOIA), removing the
                provisos regarding interagency memoranda and fees. Congress has amended
                FOIA numerous times since the enactment of NEPA, mostly recently by the
                FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538.
                Additionally, the revised paragraph (f) is consistent with the text of
                section 102(2)(C) of NEPA, including with regard to fees. CEQ makes
                these changes as proposed in the final rule.
                7. Further Guidance (Sec. 1506.7)
                 CEQ proposed to update and modernize Sec. 1506.7, ``Further
                guidance,'' to remove the specific references to handbooks, memoranda,
                and the 102 monitor, and replace it with a statement that CEQ may
                provide further guidance concerning NEPA and its procedures consistent
                with E.O. 13807 and E.O. 13891, ``Promoting the Rule of Law Through
                Improved Agency Guidance Documents.'' \98\ CEQ makes these changes in
                paragraph (a) in the final rule. This rule supersedes preexisting CEQ
                guidance and materials in many respects. CEQ intends to publish a
                separate notice in the Federal Register listing guidance it is
                withdrawing. CEQ will issue new guidance, as needed, consistent with
                the final rule and Presidential directives. In the interim, in any
                instances where an interpretation of the 1978 regulations is
                inconsistent with the new regulations or this preamble's interpretation
                of the new regulations, the new regulations and interpretations shall
                apply, and CEQ includes a new paragraph (b) in the final rule to
                provide this clarification. CEQ notes that guidance does not have the
                force and effect of law and is meant to provide clarity regarding
                existing law and policy.
                ---------------------------------------------------------------------------
                 \98\ 84 FR 55235 (Oct. 15, 2019).
                ---------------------------------------------------------------------------
                8. Proposals for Legislation (Sec. 1506.8)
                 CEQ proposed to move the legislative EIS requirements from the
                definition of legislation in 40 CFR 1508.17 to paragraph (a) of Sec.
                1506.8, ``Proposals for legislation,'' and revise the section for
                clarity. As noted in the NPRM, agencies prepare legislative EISs for
                Congress when they are proposing specific actions. CEQ also invited
                comment on whether the legislative EIS requirement should be eliminated
                or modified because the President proposes legislation, and therefore
                it is inconsistent with the Recommendations Clause of the U.S.
                Constitution, which provides the President shall recommend for
                Congress' consideration ``such [m]easures as he shall judge necessary
                and expedient . . . .'' U.S. Const., art. II, Sec. 3. The President is
                not a Federal agency, 40 CFR 1508.12, and the proposal of legislation
                by the President is not an agency action. Franklin v. Mass., 505 U.S.
                788, 800-01 (1992).
                 In the final rule, CEQ retains the provision, but removes the
                reference to providing ``significant cooperation and support in the
                development'' of legislation and the test for significant cooperation
                to more closely align this provision with the statute. The final rule
                clarifies that technical drafting assistance is not a legislative
                proposal under these regulations. Consistent with these edits, CEQ
                strikes the reference to the Wilderness Act. The mandate has
                expired.\99\ Under the Wilderness Act, a study was required to make a
                recommendation to the President. If the President agreed with the
                recommendation, the President then provided ``advice'' to Congress
                about making a wilderness determination. The President is not subject
                to NEPA in his direct recommendations to Congress, but agencies subject
                to the APA are subject to NEPA, as appropriate, concerning legislative
                proposals they develop. This avoids the constitutional issue. See
                Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis,
                J., concurring); Rescue Army v. Mun. Court of L.A., 331 U.S. 549, 569
                (1947).
                ---------------------------------------------------------------------------
                 \99\ 16 U.S.C. 1132(b)-(c).
                ---------------------------------------------------------------------------
                9. Proposals for Regulations (Sec. 1506.9)
                 CEQ proposed to add a new Sec. 1506.9, ``Proposals for
                regulations,'' to address the analyses required for rulemakings and to
                promote efficiency and reduce duplication in the assessment of
                regulatory proposals. CEQ proposed criteria for agencies to identify
                analyses that could serve as the functional equivalent of the EIS. In
                response to comments, CEQ revises this section in the final rule. This
                section clarifies that one or more procedures and documentation
                prepared pursuant to other statutory or Executive order requirements
                may satisfy one or more requirements of the CEQ regulations. When a
                procedure or document satisfies one or more requirements of this
                subchapter, the agency may substitute it for the corresponding
                requirements in this subchapter and need not carry out duplicative
                procedures or documentation. Agencies must identify which corresponding
                requirements in this subchapter are satisfied and consult with CEQ to
                confirm such determinations.
                 CEQ invited comments on analyses agencies are already conducting
                that, in whole or when aggregated, can serve as the functional
                equivalent of the EIS. Aspects of the cost-benefit analysis prepared
                pursuant to E.O. 12866, ``Regulatory Planning and Review,'' the
                Regulatory Flexibility Act, or the Unfunded Mandates Reform Act, may
                overlap with aspects of the CEQ regulations. Further, an agency may
                rely on the procedures implementing the requirements of a variety of
                statutes and Executive orders that could meet some or all of the
                requirements of this subchapter. CEQ does not expressly include
                specific analyses in the final rule that satisfy the requirements of
                the CEQ regulations. In all instances, agencies should clearly identify
                how and which specific parts of the analyses serve the purpose of NEPA
                compliance, including which requirements in the CEQ regulations are
                satisfied.
                10. Filing Requirements (Sec. 1506.10)
                 CEQ proposed to update Sec. 1506.10, ``Filing requirements,'' to
                remove the obsolete process for filing paper copies of EISs with EPA
                and EPA's delivery of a copy to CEQ, and instead provide for electronic
                filing, consistent with EPA's procedures. CEQ proposed this change to
                provide flexibility to adapt as EPA changes its processes. CEQ revises
                this section in the final rule, making the proposed changes as well as
                phrasing the language in active voice.
                11. Timing of Agency Action (Sec. 1506.11)
                 CEQ proposed to revise paragraph (a) of Sec. 1506.11, ``Timing of
                agency action,'' to clarify the timing of EPA's notices of availability
                of EISs. In paragraph (b), CEQ proposed to add a clause to acknowledge
                statutory authorities that provide for the issuance of a combined final
                EIS and ROD. See 23 U.S.C. 139(n)(2); 49 U.S.C. 304a(b). CEQ makes
                these changes in the final rule.
                 In proposed paragraph (c), CEQ proposed to add introductory text
                and create subordinate paragraphs to address those situations where
                agencies may make an exception to the time provisions in paragraph (b).
                Specifically, paragraph (c)(1) addresses agencies with formal appeals
                processes. Paragraph (c)(2) provides exceptions for
                [[Page 43339]]
                rulemaking to protect public health or safety. Paragraph (d) addresses
                timing when an agency files the final EIS within 90 days of the draft
                EIS. Finally, paragraph (e) addresses when agencies may extend or
                reduce the time periods. The proposed rule made edits to clarify the
                language in these paragraphs without changing the substance of the
                provisions. CEQ includes these changes in the final rule and makes
                additional clarifying revisions.
                12. Emergencies (Sec. 1506.12)
                 Section 1506.12, ``Emergencies,'' addresses agency compliance with
                NEPA when an agency has to take an action with significant
                environmental effects during emergency circumstances. Over the last 40
                years, CEQ has developed significant experience with NEPA in the
                context of emergencies and disaster recoveries. Actions following
                Hurricanes Katrina, Harvey, and Michael, and other natural disasters,
                have given CEQ the opportunity to respond to a variety of circumstances
                where alternative arrangements for complying with NEPA are necessary.
                CEQ has approved alternative arrangements to allow a wide range of
                proposed actions in emergency circumstances including catastrophic
                wildfires, threats to species and their habitat, economic crisis,
                infectious disease outbreaks, potential dam failures, and insect
                infestations.\100\ CEQ proposed to amend Sec. 1506.12,
                ``Emergencies,'' to clarify that alternative arrangements are still
                meant to comply with section 102(2)(C)'s requirement for a ``detailed
                statement.'' This amendment is consistent with CEQ's longstanding
                position that it has no authority to exempt Federal agencies from
                compliance with NEPA, but that CEQ can appropriately provide for
                exceptions to specific requirements of CEQ's regulations to address
                extraordinary circumstances that are not addressed by agency
                implementing procedures previously approved by CEQ. See Emergencies
                Guidance, supra note 29. CEQ maintains a public description of all
                pending and completed alternative arrangements on its website.\101\ CEQ
                makes this change in the final rule.
                ---------------------------------------------------------------------------
                 \100\ In response to the economic crisis associated with the
                coronavirus outbreak, Executive Order 13927, titled ``Accelerating
                the Nation's Economic Recovery From the COVID-19 Emergency by
                Expediting Infrastructure Investments and Other Activities,'' was
                issued on June 4, 2020. 85 FR 35165. This Executive order directs
                agencies to identify planned or potential actions to facilitate the
                Nation's economic recovery, including identification of actions that
                may be subject to emergency treatment as alternative arrangements.
                 \101\ https://ceq.doe.gov/nepa-practice/alternative_arrangements.html.
                ---------------------------------------------------------------------------
                13. Effective Date (Sec. 1506.13)
                 Finally, CEQ proposed to modify Sec. 1506.13, ``Effective date,''
                to clarify that these regulations would apply to all NEPA processes
                begun after the effective date, but agencies have the discretion to
                apply them to ongoing NEPA processes. CEQ also proposed to remove the
                1979 effective date from the introductory paragraph, and strike 40 CFR
                1506.13(a) referencing the 1973 guidance and 40 CFR 1506.13(b)
                regarding actions begun before January 1, 1970 because they are
                obsolete. This final rule makes these changes.
                I. Revisions to Agency Compliance (Part 1507)
                 CEQ proposed modifications to part 1507, which addresses agency
                compliance with NEPA, to consolidate provisions relating to agency
                procedures from elsewhere in the CEQ regulations, and add a new section
                to address the dissemination of information about agency NEPA programs.
                CEQ makes these changes in the final rule with some modifications to
                the proposed rule as discussed in the following sections.
                1. Compliance (Sec. 1507.1)
                 CEQ proposed a change to Sec. 1507.1, ``Compliance,'' to strike
                the second sentence regarding agency flexibility in adapting its
                implementing procedures to the requirements of other applicable laws
                for consistency with changes to paragraphs (a) and (b) of Sec. 1507.3,
                ``Agency NEPA procedures.'' This change is also consistent with the
                direction of the President to Federal agencies to ``comply with the
                regulations issued by the Council except where such compliance would be
                inconsistent with statutory requirements.'' E.O. 11514, as amended by
                E.O. 11991, sec. 2(g). CEQ makes this change in the final rule. Under
                the final rule, Sec. 1507.1 requires all Federal agencies to comply
                with the CEQ regulations as set forth in parts 1500 through 1508.
                2. Agency Capability To Comply (Sec. 1507.2)
                 CEQ proposed edits to the introductory paragraph of Sec. 1507.2,
                ``Agency capability to comply,'' to clarify its meaning, which is to
                allow agencies to use the resources (including personnel and financial
                resources) of other parties, including agencies and applicants, and to
                specifically require agencies to account for the contributions of these
                other parties in complying with NEPA. This section also requires
                agencies to have their own capacity to comply with NEPA and the
                implementing regulations. This includes staff with the expertise to
                independently evaluate environmental documents, including those
                prepared by applicants and contractors. CEQ makes these clarifying
                edits in the final rule.
                 Additionally, CEQ proposed to revise paragraph (a) to make the
                senior agency official responsible for overall agency compliance with
                NEPA, including coordination, communication, and resolution of
                implementation issues. CEQ is finalizing this change. Under the final
                rule, the senior agency official is an official of assistant secretary
                rank or higher (or equivalent) with responsibilities consistent with
                the responsibilities of senior agency officials in E.O. 13807 to whom
                agencies elevate anticipated missed or extended permitting timetable
                milestones. The senior agency official is responsible for addressing
                disputes among lead and cooperating agencies and enforcing page and
                time limits. The senior agency official also is responsible for
                ensuring all environmental documents--even exceptionally lengthy ones--
                are provided to Federal agency decision makers in a timely, readable,
                and useful format. See Sec. Sec. 1501.5(f), 1501.7(d), 1501.8(b)(6)
                and (c), 1501.10, 1502.7, 1507.2, 1508.1(dd).
                 CEQ proposed to amend paragraph (c) to emphasize agency
                cooperation, which includes commenting on environmental documents on
                which an agency is cooperating. CEQ makes this change in the final
                rule. CEQ revises paragraph (d) in response to comments to strike the
                second sentence, which created confusion regarding the reach of section
                102(2)(E) of NEPA. Finally, CEQ proposed to add references to E.O.
                11991, which amended E.O. 11514, and E.O. 13807 in paragraph (f) to
                codify agencies' responsibility to comply with the orders. CEQ makes
                both of these changes in the final rule.
                3. Agency NEPA Procedures (Sec. 1507.3)
                 Agency NEPA procedures set forth the process by which agencies
                comply with NEPA and the CEQ regulations in the context of their
                particular programs and processes. In developing their procedures,
                agencies should strive to identify and apply efficiencies, such as use
                of applicable CEs, adoption of prior NEPA analyses, and incorporation
                by reference to prior relevant Federal, State, Tribal, and local
                analyses, wherever practicable. To facilitate effective and efficient
                procedures, CEQ
                [[Page 43340]]
                proposed to consolidate all of the requirements for agency NEPA
                procedures in Sec. 1507.3, as discussed in detail below.
                 In the final rule, CEQ adds a new paragraph (a) to clarify the
                applicability of these regulations in the interim period between the
                effective date of the final rule and when the agencies complete updates
                to their agency NEPA procedures for consistency with these regulations.
                Consistent with Sec. 1506.13, ``Effective date,'' which makes the
                regulations applicable to NEPA reviews begun after the effective date
                of the final rule, paragraph (a) of Sec. 1507.3 requires agencies to
                apply these regulations to new reviews unless there is a clear and
                fundamental conflict with an applicable statute. For NEPA reviews in
                process that agencies began before the final rule's effective date,
                agencies may choose whether to apply the revised regulations or proceed
                under the 1978 regulations and their existing agency NEPA procedures.
                Agencies should clearly indicate to interested and affected parties
                which procedures it is applying for each proposed action. The final
                rule does not require agencies to withdraw their existing agency NEPA
                procedures upon the effective date, but agencies should conduct a
                consistency review of their procedures in order to proceed
                appropriately on new proposed actions.
                 Paragraph (a) also provides that agencies' existing CEs are
                consistent with the subchapter. CEQ adds this language to ensure CEs
                remain available for agencies' use to ensure a smooth transition period
                while they work to update their existing agency procedures, including
                their CEs, as necessary. This change allows agencies to continue to use
                their existing CEs for ongoing activities as well as proposed actions
                that begin after the effective date of the CEQ final rule, and
                clarifies that revisions to existing CEs are not required within 12
                months of the publication date of the final rule. Agencies must still
                consider whether extraordinary circumstances are present and should
                rely upon any extraordinary circumstances listed in their agency NEPA
                procedures as an integral part of an agency's process for applying CEs.
                 In paragraph (b) (proposed paragraph (a)), CEQ proposed to provide
                agencies the later of one year after publication of the final rule or
                nine months after the establishment of an agency to develop or revise
                proposed agency NEPA procedures, as necessary, to implement the CEQ
                regulations and eliminate any inconsistencies with the revised
                regulations. CEQ includes this sentence in the final rule with a
                correction to the deadline--the deadline is calculated from the
                effective date, not the publication date. CEQ notes that this provision
                references ``proposed procedures,'' and agencies need not finalize them
                by this date. The final rule strikes a balance between minimizing the
                disruption to ongoing environmental reviews while also requiring
                agencies to revise their procedures in a timely manner to ensure future
                reviews are consistent with the final rule. Agencies have the
                flexibility to address the requirements of the CEQ regulations as they
                relate to their programs and need not state them verbatim in their
                procedures. In addition, CEQ proposed to clarify that, except as
                otherwise provided by law or for agency efficiency, agency NEPA
                procedures shall not impose additional procedures or requirements
                beyond those set forth in the CEQ regulations. CEQ includes this
                language in the final rule, changing the order of the phrases, changing
                ``provided by law'' to ``required by law'' to enhance clarity, and
                adding a cross-reference to paragraph (c), which references
                efficiencies. This change is consistent with the direction of the
                President to Federal agencies in E.O. 11514 to comply with the CEQ
                regulations issued except where such compliance would be inconsistent
                with statutory requirements. E.O. 11514, as amended by E.O. 11991, sec.
                2(g). Finally, the final rule eliminates the sentence from 40 CFR
                1507.3(a) prohibiting agencies from paraphrasing the CEQ regulations
                because it is unnecessarily limiting on agencies. Agencies have the
                flexibility to address the requirements of the CEQ regulations as they
                relate to their programs and need not state them verbatim in their
                procedures.
                 Consistent with its proposal, the final rule requires agencies to
                develop or revise, as necessary, proposed procedures to implement these
                regulations. In the NPRM, CEQ proposed to subdivide 40 CFR 1507.3(a)
                into subordinate paragraphs (a)(1) and (2) for additional clarity
                because each of these paragraphs have an independent requirement. CEQ
                finalizes this change as paragraphs (b)(1) and (2) in the final rule.
                Paragraph (b)(1) addresses the requirement for agencies to consult with
                CEQ when developing or revising proposed procedures. Paragraph (b)(2)
                requires agencies to publish proposed agency NEPA procedures for public
                review and comment. After agencies address these comments, CEQ must
                determine that the agency NEPA procedures conform to and are consistent
                with NEPA and the CEQ regulations. CEQ proposed to eliminate the
                recommendation to agencies to issue explanatory guidance and the
                requirement to review their policies and procedures. CEQ makes this
                change in the final rule because it is redundant to the proposed
                language in paragraph (b) requiring agencies to update their procedures
                to implement the final rule.
                 The NPRM proposed to move the provisions in Sec. 1505.1, ``Agency
                decision making procedures,'' to proposed Sec. 1507.3(b). The final
                rule moves these provisions to paragraph (c). As stated in the NPRM,
                consistent with the proposed edits to Sec. 1500.1, CEQ proposed to
                revise this paragraph to clarify that agencies should ensure decisions
                are made in accordance with the Act's procedural requirements and
                policy of integrating NEPA with other environmental reviews to promote
                efficient and timely decision making. CEQ includes these edits in the
                final rule, along with an additional edit to change passive to active
                voice. CEQ does not include proposed paragraph (b)(1) (40 CFR
                1505.1(a)) in the final rule because the phrase ``[i]mplementing
                procedures under section 102(2) of NEPA to achieve the requirements of
                section 101 and 102(1)'' could be read to suggest that agencies could
                interpret NEPA in a manner that would impose more burdens than the
                requirements of the final rule. Including this provision in the final
                rule would be inconsistent with the language in paragraph (b) that
                limits agency NEPA procedures to the requirements in these regulations
                unless otherwise required by law or for agency efficiency. Finally, CEQ
                corrects the reference in paragraph (c)(4) to EIS, changing it to
                ``environmental documents'' consistent with the rest of the paragraph.
                 CEQ proposed a new paragraph (b)(6) to direct agencies to set forth
                in their NEPA procedures requirements to combine their NEPA documents
                with other agency documents, especially where the same or similar
                analyses are required for compliance with other requirements. As stated
                in the NPRM, many agencies implement statutes that call for
                consideration of alternatives to the agency proposal, including the no
                action alternative, the effects of the agencies' proposal and
                alternatives, and public involvement. Agencies can use their NEPA
                procedures to align compliance with NEPA and these other statutory
                authorities to integrate NEPA's goals for informed decision making with
                agencies' specific statutory requirements. This approach is consistent
                with some agency practice. See, e.g., 36 CFR part 220; Forest Service
                Handbook 1909.15 (U.S.
                [[Page 43341]]
                Department of Agriculture Forest Service NEPA procedures). More
                agencies could use it to achieve greater efficiency and reduce
                unnecessary duplication. Additionally the NPRM proposed to allow
                agencies to designate analyses or processes that serve as the
                functional equivalent of NEPA compliance.
                 CEQ includes this provision in the final rule at paragraph (c)(5)
                with revisions to clarify that agencies may designate and rely on one
                or more procedures or documents under other statutes or Executive
                orders as satisfying some or all of the requirements in the CEQ
                regulations. While courts have held that agencies do not need to
                conduct NEPA analyses under a number of statutes that are
                ``functionally equivalent,'' including the Clean Air Act, the Ocean
                Dumping Act, the Federal Insecticide, Fungicide, and Rodenticide Act,
                the Resource Conservation and Recovery Act, and the Comprehensive
                Environmental Response, Compensation, and Liability Act,\102\ the final
                rule recognizes that agencies may substitute processes or documentation
                prepared pursuant to other statutes or Executive orders to satisfy one
                or more requirements in the CEQ regulations to reduce duplication.
                Agencies must identify the respective requirements in this subchapter
                that are satisfied by other statutes or Executive orders.
                ---------------------------------------------------------------------------
                 \102\ See Portland Cement Ass'n, 486 F.2d at 387 (finding an
                exemption from NEPA for Clean Air Act section 111); see also Envtl.
                Def. Fund, Inc, 489 F.2d at 1254-56 (concluding that the standards
                of FIFRA provide the functional equivalent of NEPA); Cellular Phone
                Taskforce, 205 F.3d at 94-95 (concluding that the procedures
                followed by the Federal Communications Commission were functionally
                compliant with NEPA's EA and FONSI requirements); W. Neb. Res.
                Council, 943 F.2d at 871-72 (concluding that EPA's procedures and
                analysis under the Safe Drinking Water Act were functionally
                equivalent to NEPA); Wyo. v. Hathaway, 525 F.2d 66, 71-72 (10th Cir.
                1975) (concluding that EPA need not prepare an EIS before cancelling
                or suspending registrations of three chemical toxins used to control
                coyotes under FIFRA); State of Ala. ex rel. Siegelman v. U.S. EPA,
                911 F.2d 499, 504-05 (11th Cir. 1990) (holding that EPA did not need
                to comply with NEPA when issuing a final operating permit under the
                Resource Conservation and Recovery Act); Envtl. Def. Fund, Inc. v.
                Blum, 458 F. Supp. 650, 661-62 (D.D.C. 1978) (EPA need not prepare
                an EIS before granting an emergency exemption to a state to use an
                unregistered pesticide); State of Md. v. Train, 415 F. Supp. 116,
                121-22 (D. Md. 1976) (Ocean Dumping Act functional equivalent of
                NEPA). For further discussion, see section J.3 of the Final Rule
                Response to Comments.
                ---------------------------------------------------------------------------
                 Furthermore, CEQ proposed to add a new paragraph to allow agencies
                to identify activities or decisions that are not subject to NEPA,
                consistent with Sec. 1501.1, in their agency NEPA procedures. CEQ adds
                this provision to paragraph (d) in the final rule. The final rule uses
                ``should'' instead of ``may'' to encourage agencies to make these
                identifications in their agency NEPA procedures. The final rule also
                replaces ``actions'' with ``activities or decisions'' to avoid
                confusion with the definition of ``action'' in Sec. 1508.1(q). CEQ
                includes this list in the final rule consistent with the changes in
                Sec. 1501.1 as discussed in section II.C.1, with minor revisions to
                improve readability and a reordering of the provisions consistent with
                the reordering of the provisions in Sec. 1501.1.
                 Paragraph (e) (proposed paragraph (d)) maintains much of the
                language from 40 CFR 1507.3(b). CEQ proposed to add parenthetical
                descriptions of the cross-references in proposed paragraph (d)(1), and
                CEQ includes these in the final rule at paragraph (e)(1). CEQ proposed
                to revise paragraph (d)(2)(ii), which requires agencies to identify CEs
                in their agency NEPA procedures, move the requirement for extraordinary
                circumstances from the definition of CEs in 40 CFR 1508.4, and require
                agencies to identify in their procedures when documentation of a CE
                determination is required. CEQ also proposed to add language to
                proposed paragraph (e) to codify existing agency practice to publish
                notices when an agency pauses an EIS or withdraws an NOI. CEQ includes
                this provision with the proposed revisions in the final rule at
                paragraph (f)(3). Finally, CEQ proposed to move from 40 CFR
                1502.9(c)(3) to proposed paragraph (d)(3) the requirement to include
                procedures for introducing a supplement into its formal administrative
                record and clarify that this includes EAs and EISs. CEQ includes this
                provision in the final rule at paragraph (e)(3).
                 Paragraphs (f)(1) through (3) (proposed paragraphs (e)(1) through
                (3)) maintain much of the language from 40 CFR 1507.3(c) through (e).
                In proposed paragraph (e)(1), CEQ proposed to revise the language to
                active voice and encourage, rather than just allow, agencies to
                organize environmental documents in such a way as to make unclassified
                portions of environmental documents available to the public. CEQ makes
                these revisions in the final rule in paragraph (f)(1). CEQ also
                modifies paragraph (f)(2) to add a reference to the requirements of
                lead and cooperating agencies. CEQ adds this example consistent with
                the addition to Sec. 1506.11(b) referencing statutory provisions for
                combining a final EIS and ROD. This is also consistent with CEQ's goal
                of improving coordination between lead and cooperating agencies and
                providing efficient processes to allow for integration of the NEPA
                review with reviews conducted under other statutes. This allows for
                altering time periods to facilitate issuance of a combined FEIS and
                ROD. Additionally, CEQ proposed to move the language allowing agencies
                to adopt procedures to combine their EA process with their scoping
                process from 40 CFR 1501.7(b)(3) to paragraph (e)(4). CEQ makes this
                change in the final rule at paragraph (f)(4).
                 Finally, CEQ proposed in paragraph (e)(5) to allow agencies to
                establish a process in their agency NEPA procedures to apply the CEs of
                other agencies. CEQ also invited comment on whether to set forth this
                process in these regulations. In the final rule, CEQ includes the
                provision to allow agencies to establish a process in paragraph (f)(5)
                with some changes. CEQ includes clarifying language to address the
                confusion commenters had as to differences between this section and
                adoption of a CE determination under Sec. 1506.3. An agency's process
                must provide for consultation with the agency that listed the CE in its
                NEPA procedures to ensure that the planned use of the CE is consistent
                with the originating agency's intent and practice.\103\ The process
                should ensure documentation of the consultation and identify to the
                public those CEs the agency may use for its proposed actions.
                Consistent with Sec. 1507.4, agencies could post such information on
                their websites. Then, an agency may apply the CE to its proposed
                actions, including proposed projects or activities or groups of
                proposed projects or activities.
                ---------------------------------------------------------------------------
                 \103\ The use of another agency's CE under a process in the
                agency's NEPA procedures is an option separate from the adoption,
                under Sec. 1506.3(f), of another agency's determination that its CE
                applies to a particular action that is substantially the same as the
                adopting agency's proposed action. An agency may adopt another
                agency's CE determination for a particular action regardless of
                whether its procedures provide a process for application of other
                agencies' CEs.
                ---------------------------------------------------------------------------
                4. Agency NEPA Program Information (Sec. 1507.4)
                 CEQ proposed to add a new Sec. 1507.4, ``Agency NEPA program
                information,'' to provide the means of publishing information on
                ongoing NEPA reviews and agency records relating to NEPA reviews. CEQ
                is finalizing this provision as proposed with no changes. As stated in
                the NPRM, this provision requires agencies in their NEPA procedures to
                provide for a website or other means of publishing certain information
                on ongoing NEPA reviews and maintaining and permitting public access to
                agency records relating to NEPA reviews.
                 Section 1507.4 promotes transparency and efficiency in the NEPA
                process, and improves interagency coordination by
                [[Page 43342]]
                ensuring that information is more readily available to other agencies
                and the public. As discussed in the NPRM, opportunities exist for
                agencies to combine existing geospatial data, including remotely sensed
                images, and analyses to streamline environmental review and better
                coordinate development of environmental documents for multi-agency
                projects, consistent with the OFD policy. One option involves creating
                a single NEPA application that facilitates consolidation of existing
                datasets and can run several relevant geographic information system
                (GIS) analyses to help standardize the production of robust analytical
                results. This application could have a public-facing component modeled
                along the lines of EPA's NEPAssist,\104\ which would aid prospective
                project sponsors with site selection and project design and increase
                public transparency. The application could link to the Permitting
                Dashboard to help facilitate project tracking and flexibilities under
                Sec. Sec. 1506.5 and 1506.6. CEQ invited comment on this proposal,
                including comment on whether additional regulatory changes could help
                facilitate streamlined GIS analysis to help agencies comply with NEPA.
                While some commenters supported the development of a single NEPA
                application, others identified challenges to ensuring databases are
                useful, as well as privacy and security concerns. CEQ did not receive
                sufficient comment to lead CEQ to make additional regulatory changes to
                facilitate streamlined GIS analysis to help agencies comply with NEPA,
                and the final rule does not contain any changes from the proposal.
                ---------------------------------------------------------------------------
                 \104\ https://nepassisttool.epa.gov/nepassist/nepamap.aspx. See
                also the Marine Cadastre, which provides consolidated GIS
                information for offshore actions, https://marinecadastre.gov/.
                ---------------------------------------------------------------------------
                J. Revisions to Definitions (Part 1508)
                 NEPA does not itself include a set of definitions provided by
                Congress. CEQ, in the 1978 regulations, established a set of
                definitions for NEPA and the CEQ regulations. In this final rule, CEQ
                has clarified or supplemented the definitions as discussed below and
                further described in the Final Rule Response to Comments at section K.
                As noted above, see Public Citizen, 541 U.S. at 757; Methow Valley, 490
                U.S. at 355 (citing Andrus, 442 U.S. at 358); Brand X, 545 U.S. at 980-
                86; and Mead Corp., 533 U.S. at 227-30, CEQ has the authority to
                interpret NEPA. See, e.g., Barnhart v. Walton, 535 U.S. 212, 218 (2002)
                (``[S]ilence, after all, normally creates ambiguity. It does not
                resolve it.''). Existing NEPA case law inevitably rests directly on
                interpretive choices made in the 1978 regulations or on cases that
                themselves through some chain of prior cases also trace to the 1978
                regulations. Yet consistent with Chevron, CEQ's NEPA regulations are
                subject to change. See also Brand X, 545 U.S. 967.
                 CEQ's intention to make use of its interpretive authority under
                Chevron is particularly applicable as to part 1508 where CEQ defines or
                revises key terms in the NEPA statute and the CEQ regulations. As a
                result, this confers on CEQ an even greater degree of latitude to
                elucidate the meaning of the statute's terms in these regulations--the
                same basic authority exercised by CEQ back in 1978 in the original form
                of the NEPA regulations. See, e.g., Demski v. U.S. Dep't of Labor, 419
                F.3d 488, 491 (6th Cir. 2005) (``In the absence of a congressional
                definition or an explicit delegation of congressional authority to the
                agency, we determine how the agency responsible for implementing the
                statute . . . understands the term, and, under Chevron . . . we
                determine whether such an understanding is a `reasonable
                interpretation' of the statute.'' (citing Chevron, 467 U.S. at 844));
                London v. Polishook, 189 F.3d 196, 200 (2d Cir. 1999) (``[J]udicial
                deference does apply to the guidelines that [the] Department's Office
                of Labor-Management Standards Enforcement has developed and set out in
                its LMRDA Interpretive Manual Sec. 030.425--guidelines to which [the
                D.C. Circuit in Martoche] deferred in the absence of a clear definition
                of `political subdivision' in the Act or in its legislative
                history.''); Hawaii Gov't Employees Ass'n, Am. Fed'n of State, Cty. &
                Mun. Employees, Local 152 v. Martoche, 915 F.2d 718, 721 (D.C. Cir.
                1990) (``With some imprecision in the statutory text [as to an
                undefined term] and a nearly total lack of elucidation in the
                legislative history, the situation is squarely one in which Congress
                implicitly left a gap for the agency to fill.'') (internal citation and
                quotation marks omitted). See also Perez v. Commissioner, 144 T.C. 51,
                59 (2015); Saha Thai Steel Pipe (Pub.) Co. v. United States, 33 C.I.T.
                1541, 1547 (Ct. of Int'l Trade 2009).\105\ In promulgating new or
                revised definitions and other changes to the NEPA regulations, CEQ has
                considered the ordinary meaning of the terms used by Congress in the
                statute.
                ---------------------------------------------------------------------------
                 \105\ ``Although NEPA's statutory text specifies when an agency
                must comply with NEPA's procedural mandate; it is the Council on
                Environmental Quality Regulations (`CEQ') regulations which dictate
                the how, providing the framework by which all [F]ederal agencies
                comply with NEPA.'' Dine' Citizens Against Ruining Our Environment
                v. Klein, 747 F. Supp. 2d 1234, 1248 (D. Colo. 2010) (emphasis in
                original).
                ---------------------------------------------------------------------------
                 As discussed in the NPRM, CEQ proposed significant revisions to
                part 1508. CEQ proposed to move the operative language, which is
                regulatory language that provides instruction or guidance, included
                throughout the regulations in this section to the relevant substantive
                sections of the regulations. Consistent with this change, CEQ proposed
                to retitle part 1508 from ``Terminology and Index'' to ``Definitions.''
                \106\ CEQ also proposed to clarify the definitions of a number of key
                NEPA terms in order to reduce ambiguity, both through modification of
                existing definitions and the addition of new definitions. CEQ proposed
                to eliminate individual section numbers for each term in favor of a
                single section of defined terms in the revised Sec. 1508.1. Finally,
                CEQ proposed to remove citations to the specific definition sections
                throughout the rule. CEQ makes these changes in the final rule.
                ---------------------------------------------------------------------------
                 \106\ CEQ has maintained an index in the Code of Federal
                Regulations, but this is not a part of the regulations. CEQ does not
                intend to continue to maintain such an index because it is no longer
                necessary given that the regulations are typically accessed
                electronically and the regulations' organization has been
                significantly improved.
                ---------------------------------------------------------------------------
                1. Clarifying the Meaning of ``Act''
                 CEQ proposed in paragraph (a) to add ``NEPA'' as a defined term
                with the same meaning as ``Act.'' CEQ makes this change in the final
                rule.
                2. Definition of ``Affecting''
                 CEQ did not propose to make any change to the defined term
                ``affecting'' in paragraph (b). CEQ does not make any changes to this
                definition in the final rule.
                3. New Definition of ``Authorization''
                 CEQ proposed to define the term ``authorization'' in paragraph (c)
                to refer to the types of activities that might be required for
                permitting a proposed action, in particular infrastructure projects.
                This definition is consistent with the definition included in FAST-41
                and E.O. 13807. CEQ proposed to replace the word ``entitlement'' with
                ``authorization'' throughout the rule. CEQ adds this definition and
                makes these changes in the final rule.
                4. Clarifying the Meaning of ``Categorical Exclusion''
                 CEQ proposed to revise the definition of ``categorical exclusion''
                in paragraph (d) by inserting ``normally'' to clarify that there may be
                situations where an action may have significant effects on account of
                extraordinary circumstances.
                [[Page 43343]]
                CEQ also proposed to strike ``individually or cumulatively'' for
                consistency with the proposed revisions to the definition of
                ``effects'' as discussed in this section. CEQ proposed conforming edits
                in Sec. Sec. 1500.4(a) and 1500.5(a). As noted in section II.I.3, CEQ
                proposed to move the requirement to provide for extraordinary
                circumstances in agency procedures to Sec. 1507.3(d)(2)(ii) (Sec.
                1507.3(e)(2)(ii) in the final rule). CEQ makes these changes in the
                final rule. CEQ notes that the definition of ``categorical exclusion''
                only applies to those CEs created by an agency in its agency NEPA
                procedures and does not apply to ``legislative'' CEs created by
                Congress, which are governed by the terms of the specific statute and
                statutory interpretation of the agency charged with the implementation
                of the statute.
                5. Clarifying the Meaning of ``Cooperating Agency''
                 CEQ proposed to amend the definition of ``cooperating agency'' in
                paragraph (e) to make clear that a State, Tribal, or local agency may
                be a cooperating agency when the lead agency agrees, and to move the
                corresponding operative language allowing a State, Tribal, or local
                agency to become a cooperating agency with the lead agency's agreement
                to paragraph (a) of Sec. 1501.8, ``Cooperating agencies.'' CEQ also
                proposed to remove the sentence cross-referencing the cooperating
                agency section in part 1501 and stating that the selection and
                responsibilities of a cooperating agency are described there because it
                is unnecessary and does not define the term. CEQ makes these changes in
                the final rule.
                6. Definition of ``Council''
                 CEQ did not propose any changes to the definition of ``Council'' in
                paragraph (f). CEQ also invited comment on whether to update references
                to ``Council'' in the regulations to ``CEQ'' throughout the rule. CEQ
                did not receive sufficient comments on this proposal; therefore, CEQ
                does not make this change in the final rule.
                7. Definition of ``Cumulative Impact'' and Clarifying the Meaning of
                ``Effects''
                 CEQ proposed to remove the definition of ``cumulative impact'' and
                revise the definition of ``effects'' in paragraph (g). As noted in the
                NPRM, many commenters to the ANPRM urged CEQ to refine the definition
                based on concerns that it creates confusion, and that the terms
                ``indirect'' and ``cumulative'' have been interpreted expansively
                resulting in excessive documentation about speculative effects and
                leading to frequent litigation. Commenters also raised concerns that
                this has expanded the scope of NEPA analysis without serving NEPA's
                purpose of informed decision making. Commenters stressed that the focus
                of the effects analysis should be on those effects that are reasonably
                foreseeable, related to the proposed action under consideration, and
                subject to the agency's jurisdiction and control. Commenters also noted
                that NEPA practitioners often struggle with describing cumulative
                impacts despite a number of publications that address the topic.
                 While NEPA refers to environmental impacts and environmental
                effects, it does not subdivide the terms into direct, indirect, or
                cumulative. Nor are the terms ``direct,'' ``indirect,'' or
                ``cumulative'' included in the text of the statute. CEQ created those
                concepts and included them in the 1978 regulations.
                 To address commenters' concerns and reduce confusion and
                unnecessary litigation, CEQ proposed to simplify the definition of
                effects by striking the specific references to direct, indirect, and
                cumulative effects and providing clarity on the bounds of effects
                consistent with the Supreme Court's holding in Public Citizen, 541 U.S.
                at 767-68. Under the proposed definition, effects must be reasonably
                foreseeable and have a reasonably close causal relationship to the
                proposed action or alternatives; a ``but for'' causal relationship is
                insufficient to make an agency responsible for a particular effect
                under NEPA. This close causal relationship is analogous to proximate
                cause in tort law. Id. at 767; see also Metro. Edison Co., 460 U.S. at
                774 (interpreting section 102 of NEPA to require ``a reasonably close
                causal relationship between a change in the physical environment and
                the effect at issue'' and stating ``[t]his requirement is like the
                familiar doctrine of proximate cause from tort law.''). CEQ sought
                comment on whether to include in the definition of effects the concept
                that the close causal relationship is ``analogous to proximate cause in
                tort law,'' and if so, how CEQ could provide additional clarity
                regarding the meaning of this phrase.
                 In the final rule, CEQ revises the definition of effects consistent
                with the proposal, with some additional edits. First, to eliminate the
                circularity in the definition, CEQ changes the beginning of the
                definition from ``means effects of'' to ``means changes to the human
                environment from'' the proposed action or alternatives. This change
                also associates the definition of effects with the definition of human
                environment, which continues to cross-reference to the definition of
                effects in the final rule. It also makes clear that, when the
                regulations use the term ``effects,'' it means effects on the human
                environment. This responds to comments suggesting CEQ add ``on the
                human environment'' after ``effects'' in various sections of the rule.
                 The final rule also consolidates the first two sentences of the
                definition to clarify that, for purposes of this definition, ``effects
                that occur'' at the ``same time and place as the proposed action or
                alternatives,'' or that ``are later in time or farther removed in
                distance'' must nevertheless be reasonably foreseeable and have a
                reasonably close causal relationship to the proposed action or
                alternatives. As a separate sentence that only referenced reasonable
                foreseeability, there was ambiguity as to whether a reasonably close
                causal relationship was required. Additionally, the final rule adds a
                clause to clarify that the consideration of time and place or distance
                are relative to the proposed action or alternatives.
                 CEQ proposed to strike the definition of ``cumulative impact'' and
                the terms ``direct'' and ``indirect'' in order to focus agency time and
                resources on considering whether the proposed action causes an effect
                rather than on categorizing the type of effect. As stated in the NPRM,
                CEQ intends the revisions to simplify the definition to focus agencies
                on consideration of effects that are reasonably foreseeable and have a
                reasonably close causal relationship to the proposed action. In
                practice, agencies have devoted substantial resources to categorizing
                effects as direct, indirect, or cumulative, which, as noted above, are
                not terms referenced in the NEPA statute. CEQ eliminates these
                references in the final rule.
                 To further assist agencies in their assessment of significant
                effects, CEQ also proposed to clarify that agencies should not consider
                effects significant if they are remote in time, geographically remote,
                or the result of a lengthy causal chain. See, e.g., Pub. Citizen, 541
                U.S. at 767-68 (``In particular, `courts must look to the underlying
                policies or legislative intent in order to draw a manageable line
                between those causal changes that may make an actor responsible for an
                effect and those that do not.' '' (quoting Metro. Edison Co., 460 U.S.
                at 774 n.7)); Metro. Edison Co., 460 U.S. at 774 (noting effects may
                not fall within section 102 of NEPA because ``the causal chain is too
                attenuated''). CEQ revises this sentence in the final rule to add
                ``generally'' to reflect the fact that there may occasionally be a
                [[Page 43344]]
                circumstance where an effect that is remote in time, geographically
                remote, or the product of a lengthy causal chain is reasonably
                foreseeable and has a reasonably close causal relationship to the
                proposed action.
                 Further, CEQ proposed to codify a key holding of Public Citizen
                relating to the definition of effects to make clear that effects do not
                include effects that the agency has no authority to prevent or that
                would happen even without the agency action, because they would not
                have a sufficiently close causal connection to the proposed action. For
                example, this would include effects that would constitute an
                intervening and superseding cause under familiar principles of tort
                law. See, e.g., Sierra Club v. FERC, 827 F.3d 36, 47-48 (D.C. Cir.
                2016) (NEPA case incorporating these principles) (``[C]ritical to
                triggering that chain of events is the intervening action of the
                Department of Energy in granting an export license. The Department's
                independent decision to allow exports--a decision over which the
                Commission has no regulatory authority--breaks the NEPA causal chain
                and absolves the Commission of responsibility to include in its NEPA
                analysis considerations that it `could not act on' and for which it
                cannot be `the legally relevant cause.''' (quoting Pub. Citizen, 541
                U.S. at 769)). As discussed in the NPRM, this clarification will help
                agencies better understand what effects they need to analyze and
                discuss, helping to reduce delays and paperwork with unnecessary
                analyses. CEQ includes this language in the final rule as proposed.
                 In addition, CEQ proposed a change in position to state that
                analysis of cumulative effects, as defined in the 1978 regulations, is
                not required under NEPA. Categorizing and determining the geographic
                and temporal scope of such effects has been difficult and can divert
                agencies from focusing their time and resources on the most significant
                effects. Past CEQ guidance has not been successful in dispelling
                ambiguity. Excessively lengthy documentation that does not focus on the
                most meaningful issues for the decision maker's consideration can lead
                to encyclopedic documents that include information that is irrelevant
                or inconsequential to the decision-making process. Instead, agencies
                should focus their efforts on analyzing effects that are most likely to
                be potentially significant and effects that would occur as a result of
                the agency's decision, rather than effects that would be the result of
                intervening and superseding causes. Agencies are not expected to
                conduct exhaustive research on identifying and categorizing actions
                beyond the agency's control.
                 CEQ intended the proposed elimination of the definition of
                cumulative impact to focus agencies on analysis of effects that are
                reasonably foreseeable and have a reasonably close causal relationship
                to the proposed action. Cumulative effects analysis has been
                interpreted so expansively as to undermine informed decision making,
                and led agencies to conduct analyses to include effects that are not
                reasonably foreseeable or do not have a reasonably close causal
                relationship to the proposed action or alternatives. CEQ also invited
                comment on whether to include an affirmative statement that
                consideration of indirect effects is not required; the final rule does
                not include additional direction to agencies specific to indirect
                effects.
                 CEQ received many comments on cumulative effects. In the final
                rule, to provide further clarification, CEQ includes a new provision at
                paragraph (g)(3) that states that the analysis of effects shall be
                consistent with the definition of effects, and that cumulative impact,
                defined in 40 CFR 1508.7 (1978), is repealed. This language explains
                how agencies should apply the definition of effects with respect to
                environmental documents and other provisions in the final rule.
                Specifically, analyses are bound by the definition of effects as set
                forth in Sec. 1508.1(g)(1) and (2) and should not go beyond the
                definition of effects set forth in those two paragraphs. The final rule
                provides considerable flexibility to agencies to structure the analysis
                of effects based on the circumstances of their programs.
                 In response to the NPRM, commenters stated that agencies would no
                longer consider the impacts of a proposed action on climate change. The
                rule does not preclude consideration of the impacts of a proposed
                action on any particular aspect of the human environment. The analysis
                of the impacts on climate change will depend on the specific
                circumstances of the proposed action. As discussed above, under the
                final rule, agencies will consider predictable trends in the area in
                the baseline analysis of the affected environment.
                8. Clarifying the Meaning of ``Environmental Assessment''
                 CEQ proposed to revise the definition of ``environmental
                assessment'' in paragraph (h), describing the purpose for the document
                and moving all of the operative language setting forth the requirements
                for an EA from the definition to proposed Sec. 1501.5. CEQ makes this
                change in the final rule.
                9. Clarifying the Meaning of ``Environmental Document''
                 CEQ proposed to remove the cross-references from the definition of
                ``environmental document'' in paragraph (i). CEQ makes this change in
                the final rule.
                10. Clarifying the Meaning of ``Environmental Impact Statement''
                 CEQ proposed to change ``the Act'' to ``NEPA'' in the definition of
                ``environmental impact statement'' in paragraph (j). CEQ makes this
                change in the final rule.
                11. Clarifying the Meaning of ``Federal Agency''
                 CEQ proposed to amend the definition of ``Federal agency'' in
                paragraph (k) to broaden it to include States, Tribes, and units of
                local government to the extent that they have assumed NEPA
                responsibilities from a Federal agency pursuant to statute. As stated
                in the NPRM, since the issuance of the CEQ regulations, Congress has
                authorized assumption of NEPA responsibilities in other contexts
                besides the Housing and Community Development Act of 1974, Public Law
                93-383, sec. 104(h), 88 Stat. 633, 640, 42 U.S.C. 5304. See, e.g.,
                Surface Transportation Project Delivery Program, 23 U.S.C. 327. This
                change acknowledges these programs and helps clarify roles and
                responsibilities. CEQ makes this change and minor clarifying edits in
                the final rule.
                12. Clarifying the Meaning of ``Finding of No Significant Impact''
                 CEQ proposed to revise the definition of ``finding of no
                significant impact'' in paragraph (l) to insert the word
                ``categorically'' into the phrase ``not otherwise excluded,'' change
                the cross-reference to the new section addressing CEs at Sec. 1501.4,
                and move the operative language requiring a FONSI to include an EA or a
                summary of it and allowing incorporation by reference of the EA to
                Sec. 1501.6, which addresses the requirements of a FONSI. CEQ makes
                these revisions in the final rule.
                13. Clarifying the Meaning of ``Human Environment''
                 CEQ proposed to change ``people'' to ``present and future
                generations of Americans'' consistent with section 101(a) of NEPA to
                the definition of human environment in paragraph (m). CEQ also proposed
                to move the operative language stating that economic or social effects
                by themselves
                [[Page 43345]]
                do not require preparation of an EIS to Sec. 1502.16(b), which is the
                section of the regulations that addresses when agencies should consider
                economic or social effects in an EIS. CEQ makes these changes in the
                final rule to assist agencies in understanding and implementing the
                statute and regulations.
                14. Definition of ``Jurisdiction by Law''
                 The NPRM did not propose any changes to the definition of
                jurisdiction by law in paragraph (n). CEQ did not revise this
                definition in the final rule.
                15. Clarifying the Meaning of ``Lead Agency''
                 CEQ proposed to amend the definition of lead agency in paragraph
                (o) to clarify that this term includes joint lead agencies, which are
                an acceptable practice. CEQ makes this change in the final rule.
                16. Clarifying the Meaning of ``Legislation''
                 CEQ proposed to move the operative language regarding the test for
                significant cooperation and the principle that only the agency with
                primary responsibility will prepare a legislative EIS to Sec. 1506.8.
                CEQ also proposed to strike the example of treaties, because the
                President is not a Federal agency, and therefore a request for
                ratification of a treaty would not be subject to NEPA. CEQ makes these
                changes in the final rule, striking the references to ``significant
                cooperation and support,'' in paragraph (p) to narrow the definition to
                comport with the NEPA statute, as discussed in section II.H.8.
                17. Clarifying the Meaning of ``Major Federal Action''
                 CEQ received many comments on the ANPRM requesting clarification of
                the definition of major Federal action. For example, CEQ received
                comments proposing that non-Federal projects should not be considered
                major Federal actions based on a very minor Federal role. Commenters
                also recommended that CEQ clarify the definition to exclude decisions
                where agencies do not have discretion to consider and potentially
                modify their actions based on the environmental review.
                 CEQ proposed to amend the first sentence of the definition in
                paragraph (q) to clarify that an action meets the definition if it is
                subject to Federal control and responsibility, and it has effects that
                may be significant. CEQ proposed to replace ``major'' effects with
                ``significant'' in this sentence to align with the NEPA statute. In the
                final rule, CEQ revises the definition to remove reference to
                significance. CEQ also revises the definition to remove the circularity
                in the definition, changing ``means an action'' to ``means an activity
                or decision'' that is subject to Federal control and responsibility.
                i. Independent Meaning of ``Major''
                 CEQ proposed to strike the second sentence of the definition, which
                provides ``Major reinforces but does not have a meaning independent of
                significantly.'' CEQ makes this change in the final rule. This is a
                change in position as compared to CEQ's earlier interpretation of NEPA
                and, in finalizing this change, CEQ intends to correct this
                longstanding misconstruction of the NEPA statute. The statutory aim of
                NEPA is to focus on ``major Federal actions significantly affecting the
                quality of the human environment,'' 42 U.S.C. 4332(2)(C), rather than
                on non-major Federal actions that simply have some degree of Federal
                involvement. Under the 1978 regulations, however, the word ``major''
                was rendered virtually meaningless.
                 CEQ makes this change because all words of a statute must be given
                meaning consistent with longstanding principles of statutory
                interpretation. See, e.g., Bennett, 520 U.S. at 173 (``It is the
                cardinal principle of statutory construction . . . that it is our duty
                to give effect, if possible, to every clause and word of a statute . .
                . rather than to emasculate an entire section.'') (internal quotations
                and citations omitted) (quoting United States v. Menasche, 348 U.S.
                528, 538 (1955)). Although the 1978 regulations treated the terms
                ``major'' and ``significantly'' as interchangeable, there is an
                important distinction between the two terms and how they apply in the
                NEPA process. ``Major'' refers to the type of action, including the
                role of the Federal agency and its control over any environmental
                impacts. ``Significant'' relates to the effects stemming from the
                action, including consideration of the affected area, resources, and
                the degree of the effects. In the statute, ``major'' occurs twice, and
                in both instances is a modifier of ``Federal action''--in section
                102(2)(C) in the phrase ``other major Federal actions significantly
                affecting the quality of the human environment,'' and section 102(2)(D)
                in the phrase, ``any major Federal action funded under a program of
                grants to States.'' NEPA also uses ``significant'' or ``significantly''
                twice as a modifier of the similar words ``affecting'' in section
                102(2)(C) and ``impacts'' in section 102(2)(D)(iv).
                 The legislative history of NEPA also reflects that Congress used
                the term ``major'' independent of ``significantly,'' and provided that,
                for major actions, agencies should make a determination as to whether
                the proposal would have a significant environmental impact.
                Specifically, the Senate Report for the National Environmental Policy
                Act of 1969 (Senate Report) states, ``Each agency which proposes any
                major actions, such as project proposals, proposals for new
                legislation, regulations, policy statements, or expansion or revision
                of ongoing programs, shall make a determination as to whether the
                proposal would have a significant effect upon the quality of the human
                environment.'' S. Rep. No. 91-296, at 20 (1969) (emphasis added).\107\
                Further, the Senate Report shows that OMB's predecessor, the Bureau of
                the Budget, submitted comments on the legislation to provide the views
                of the Executive Office of the President and recommended that Congress
                revise the text of the bill to include two separate modifiers:
                ``major'' before Federal actions and ``significantly'' before affecting
                the quality of the human environment. See id. at 30 (Bureau of the
                Budget's markup returned to the Senate on July 7, 1969). The enacted
                legislation included these revisions. While CEQ followed the Eight
                Circuit's approach in Minnesota Public Interest Research Group v. Butz,
                498 F.2d 1314, 1321-22 (8th Cir. 1974), in the 1978 regulations, other
                courts had interpreted ``major'' and ``significantly'' as having
                independent meaning before CEQ issued its 1978 regulations. See NAACP
                v. Med. Ctr., Inc., 584 F.2d 619, 629 (3d Cir. 1978) (analyzing the
                Secretary's ministerial approval of a capital expenditure under a
                framework that first considered whether there had been agency action,
                and then whether that action was ``major''); Hanly v. Mitchell, 460
                F.2d 640, 644-45 (2d Cir. 1972) (``There is no doubt that the Act
                contemplates some agency action that does not require an impact
                statement because the action is minor and has so little effect on the
                environment as to be insignificant.'' (internal citations omitted));
                Scherr v. Volpe, 466 F.2d 1027, 1033 (7th Cir. 1972) (finding that a
                highway project qualifies as major before turning to the second step of
                whether the project would have a significant effect); Julius v. City of
                Cedar Rapids, 349 F. Supp. 88, 90 (N.D. Iowa 1972) (finding that a lane
                widening project was not a major Federal action); Goose Hollow
                Foothills League v. Romney, 334 F. Supp. 877, 879 (D. Or. 1971)
                (discussing whether a proposed
                [[Page 43346]]
                building project was ``major''); SW Neighborhood Assembly v. Eckard,
                445 F. Supp. 1195, 1199 (D.D.C. 1978) (``The phrase `major Federal
                action' has been construed by the Courts to require an inquiry into
                such questions as the amount of federal funds expended by the action,
                the number of people affected, the length of time consumed, and the
                extent of government planning involved.'' (citing Hanly, 460 F.2d at
                644)); Nat. Res. Def. Council v. Grant, 341 F. Supp. 356, 366 (E.D.N.C.
                1972) (``Certainly, an administrative agency [such] as the Soil
                Conservation Service may make a decision that a particular project is
                not major, or that it does not significantly affect the quality of the
                human environment, and, that, therefore, the agency is not required to
                file an impact statement.''). Moreover, as discussed further below,
                over the past four decades, in a number of cases, courts have
                determined that NEPA does not apply to actions with minimal Federal
                involvement or funding. Under the revised definition, these would be
                non-major Federal actions.
                ---------------------------------------------------------------------------
                 \107\ https://ceq.doe.gov/docs/laws-regulations/Senate-Report-on-NEPA.pdf.
                ---------------------------------------------------------------------------
                 In the final rule, CEQ reorganizes the remainder of the definition
                of major Federal action into subordinate paragraphs. Paragraph (q)(1)
                provides a list of activities or decisions that are not included within
                the definition.
                ii. Extraterritoriality
                 In the NPRM, CEQ requested comment on whether to clarify that major
                Federal action does not include extraterritorial actions because NEPA
                does not apply extraterritorially, consistent with Kiobel v. Royal
                Dutch Petroleum Co., 569 U.S. 108, 115-16 (2013), in light of the
                ordinary presumption against extraterritorial application when a
                statute does not clearly indicate that extraterritorial application is
                intended by Congress. In the final rule, CEQ revises the definition of
                ``Major Federal action'' in a new paragraph (q)(1)(i) to exclude
                extraterritorial activities or decisions, which mean activities or
                decisions with effects located entirely outside the jurisdiction of the
                United States.\108\
                ---------------------------------------------------------------------------
                 \108\ The Restatement of Foreign Relations Law provides that the
                areas within the territorial jurisdiction of the United States
                include ``its land, internal waters, territorial sea, the adjacent
                airspace, and other places over which the United States has
                sovereignty or some measure of legislative control.'' Restatement
                (Fourth) of Foreign Relations Law sec. 404 (2018).
                ---------------------------------------------------------------------------
                 The Supreme Court has stated that ``[i]t is a longstanding
                principle of American law `that legislation of Congress, unless a
                contrary intent appears, is meant to apply only within the territorial
                jurisdiction of the United States.' '' EEOC v. Arabian Am. Oil Co.
                (Aramco), 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo,
                Inc., 336 U.S. 281, 285 (1949)). During the past decade, the Supreme
                Court has considered the application of the presumption to a variety of
                Federal statutes.\109\ As the Supreme Court has stated, the presumption
                ``rests on the perception that Congress ordinarily legislates with
                respect to domestic, not foreign matters.'' Morrison, 561 U.S. at 255
                (citing Smith v. United States, 507 U.S. 197, 204 n.5 (1993)). ``Thus,
                `unless there is the affirmative intention of the Congress clearly
                expressed' to give a statute extraterritorial effect, `we must presume
                it is primarily concerned with domestic conditions.' '' Morrison, 561
                U.S. at 255 (citing Aramco, 499 U.S. at 248). The Supreme Court has
                held, including in more recent decisions, that the presumption applies
                regardless of whether there is a risk of conflict between the U.S.
                statute and a foreign law. Morrison, 561 U.S. at 255 (citing Sale v.
                Haitian Ctrs. Council, Inc., 509 U.S. 155, 173-74 (1993)); RJR Nabisco,
                136 S. Ct. at 2100; see also Smith, 507 U.S. at 204 n.5.
                ---------------------------------------------------------------------------
                 \109\ See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090
                (2016) (Racketeer Influenced and Corrupt Organizations Act); Kiobel,
                569 U.S. at 115-16 (Alien Tort Statute); Morrison v. Nat'l Austl.
                Bank Ltd., 561 U.S. 247, 255 (2010) (Securities and Exchange Act of
                1934); WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129
                (2018) (Patent Act).
                ---------------------------------------------------------------------------
                 The Supreme Court has established a two-step framework for
                analyzing whether the presumption against extraterritoriality applies
                to a Federal statute.\110\ Under this framework, the first step is to
                ask whether the presumption against extraterritoriality has been
                rebutted because ``the statute gives a clear, affirmative indication
                that it applies extraterritorially.'' RJR Nabisco, 136 S. Ct. at 2101.
                If the presumption has not been rebutted, the second step is to
                determine whether the case involves a domestic application of the
                statute, and courts have done this by looking to the statute's
                ``focus.'' \111\
                ---------------------------------------------------------------------------
                 \110\ See RJR Nabisco, 136 S. Ct. at 2101 (citing Morrison, 561
                U.S. at 267 n.9; Kiobel, 569 U.S. 108); see also WesternGeco LLC,
                138 S. Ct. 2129.
                 \111\ Id. (``If the conduct relevant to the statute's focus
                occurred in the United States, then the case involves a permissible
                domestic application even if other conduct occurred abroad; but if
                the conduct relevant to the focus occurred in a foreign country,
                then the case involves an impermissible extraterritorial application
                regardless of any other conduct that occurred in U.S. territory.'').
                This two-step framework for analyzing extraterritoriality issues is
                also reflected in the Restatement of Foreign Relations Law. See
                Restatement (Fourth) of Foreign Relations Law sec. 404 (2018).
                ---------------------------------------------------------------------------
                 Under the two-step framework, CEQ has determined that because the
                legislative history and statutory text of section 102(2)(C) gives no
                clear indication that it applies extraterritorially, the presumption
                against extraterritoriality has not been rebutted. The plain language
                of section 102(2)(C) does not require it to be applied to actions
                occurring outside the jurisdiction of the United States.\112\ The only
                reference in the Act to international considerations is in section
                102(2)(F), which refers to ``international cooperation'' and the
                ``worldwide and long-range character of environmental problems,'' and
                directs agencies to ``where consistent with the foreign policy of the
                United States, lend appropriate support to initiatives, resolutions,
                and programs designed to maximize international cooperation'' to
                protect the environment. 42 U.S.C. 4332(2)(F). International
                cooperation is inherently voluntary and not part of the mandatory
                analysis required under the statute, and this provision does not
                indicate in any way that the requirements of section 102(2)(C) to
                prepare detailed statements applies outside of U.S. territorial
                jurisdiction. The limited legislative history of section 102(2)(C)
                similarly does not include discussion of application of the
                requirements of section 102(2)(C) to extraterritorial actions.\113\
                ---------------------------------------------------------------------------
                 \112\ Section 102(2)(C) directs Federal agencies to provide a
                detailed statement for major Federal actions significantly affecting
                the quality of the human environment, and requires the responsible
                official to consult with and obtain the comments of Federal agencies
                with jurisdiction or special expertise, as well as to make copies of
                the statement and comments and views of Federal, state and local
                agencies available to the President, CEQ and the public. 42 U.S.C.
                4332(2)(C). Nothing in the text states that this section was
                intended to require the preparation of detailed statements for
                actions located outside the United States.
                 \113\ See also Nat. Res. Def. Council v. Nuclear Regulatory
                Comm'n, 647 F. 2d 1345, 1367 (D.C. Cir. 1981) (``NEPA's legislative
                history illuminates nothing in regard to extraterritorial
                application.'').
                ---------------------------------------------------------------------------
                 Under the two-step framework, CEQ has also considered the purpose
                of section 102(2)(C), which is to ensure that a Federal agency, as part
                of its decision making process, considers the potential environmental
                impacts of proposed actions. The focus of congressional concern is the
                proposed action and its potential environmental effects. The effects of
                a proposed action may occur both within U.S. territorial jurisdiction
                as well as outside that jurisdiction. To the extent effects of a
                proposed action occur entirely outside the territorial jurisdiction of
                the United States, the application of section 102(2)(C) would not be
                permissible, consistent with the Supreme Court's holding that where the
                conduct relevant to the statute's focus occurred in the United States,
                then ``the case involves a
                [[Page 43347]]
                permissible domestic application even if other conduct occurred abroad;
                but if the conduct relevant to the focus occurred in a foreign country,
                then the case involves an impermissible extraterritorial application
                regardless of any other conduct that occurred in U.S. territory.'' RJR
                Nabisco, 136 S. Ct. at 2101. Therefore, CEQ provides in paragraph
                (q)(1)(i) of the final rule that NEPA does not apply to ``agency
                activities or decisions with effects located entirely outside of the
                jurisdiction of the United States.''
                iii. Non-Discretionary Activities or Decisions
                 In the NPRM, CEQ proposed to clarify that the definition does not
                include non-discretionary activities or decisions made in accordance
                with the agency's statutory authority. The Supreme Court has held that
                analysis of a proposed action's effects under NEPA is not required
                where an agency has limited statutory authority and ``simply lacks the
                power to act on whatever information might be contained in the EIS.''
                Pub. Citizen, 541 U.S. at 768; see also South Dakota, 614 F.2d at 1193
                (holding that the Department of the Interior's issuance of a mineral
                patent that was a ministerial act did not come within NEPA); Milo Cmty.
                Hosp. v. Weinberger, 525 F.2d 144, 148 (1st Cir. 1975) (NEPA analysis
                of impacts not required when agency was under a statutory duty to take
                the proposed action of terminating a hospital). CEQ includes this
                clarification in paragraph (q)(1)(ii).
                iv. Final Agency Action and Failure To Act
                 CEQ proposed to strike the statement that major Federal action
                includes a failure to act and instead clarify that the definition
                excludes activities or decisions that do not result in final agency
                action under the APA. The basis for including only final agency actions
                is the statutory text of the APA, which provides a right to judicial
                review of all ``final agency action[s] for which there is no other
                adequate remedy in a court.'' 5 U.S.C. 704. CEQ includes this
                clarification in paragraph (q)(1)(iii) of the final rule and includes
                ``or other statute that also includes a finality requirement'' because
                CEQ recognizes that other statutes may also contain finality
                requirements beyond those of the APA. As the NPRM noted, NEPA applies
                when agencies are considering a proposal for decision. In the case of a
                ``failure to act,'' there is no proposed action and therefore there are
                no alternatives that the agency may consider. S. Utah Wilderness All.,
                542 U.S. at 70-73. Judicial review is available only when an agency
                fails to take a discrete action it is required to take. Id. In omitting
                the reference to a failure to act from the definition of ``major
                Federal action,'' CEQ does not contradict the definition of ``agency
                action'' under the APA at 5 U.S.C. 551(13), and recognizes that the APA
                may compel agency action that is required but has been unreasonably
                withheld. If an agency is compelled to take such agency action, it
                should prepare a NEPA analysis at that time, as appropriate.
                v. Enforcement Actions
                 In the final rule, CEQ moves the exclusion of judicial or
                administrative civil or criminal enforcement actions from 40 CFR
                1508.18(a) to paragraph (q)(1)(iv) of Sec. 1508.1. CEQ did not propose
                changes to this language in the NPRM. In the final rule, CEQ moves this
                language and revises it consistent with the format of the list in
                paragraph (q)(1).
                vi. General Revenue Sharing Funds
                 CEQ proposed to strike the specific reference to the State and
                Local Fiscal Assistance Act of 1972 from 40 CFR 1508.18(a) and clarify
                that general revenue sharing funds do not meet the definition of major
                Federal action because the agency has no discretion. CEQ includes this
                change in paragraph (q)(1)(v) in the final rule.
                vii. Minimal Federal Funding or Involvement
                 CEQ proposed to clarify that non-Federal projects with minimal
                Federal funding or minimal Federal involvement such that the agency
                cannot control the outcome of the project are not major Federal
                actions. The language in paragraph (q)(1)(vi) of the final rule is
                consistent with the holdings of relevant circuit court cases that have
                addressed this issue. See Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095,
                1101 (9th Cir. 2007) (Federal funding comprising six percent of the
                estimated implementation budget not enough to federalize implementation
                of entire project); New Jersey Dep't of Envtl. Prot. & Energy v. Long
                Island Power Auth., 30 F.3d 403, 417 (3d Cir. 1994) (``Federal approval
                of a private party's project, where that approval is not required for
                the project to go forward, does not constitute a major Federal
                action.''); United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563,
                1572 (11th Cir. 1994) (``The touchstone of major [F]ederal activity
                constitutes a [F]ederal agency's authority to influence nonfederal
                activity. `The [F]ederal agency must possess actual power to control
                the nonfederal activity.' '' (quoting Sierra Club v. Hodel, 848 F.2d
                1068, 1089 (10th Cir. 1988), overruled on other grounds by Vill. of Los
                Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992));
                Sugarloaf Citizens Ass'n v. FERC, 959 F.2d 508, 512 (4th Cir. 1992);
                Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129, 1134-35
                (5th Cir. 1992); Macht v. Skinner, 916 F.2d 13, 20 (D.C. Cir. 1990)
                (funding for planning and studies not enough to federalize a project);
                Vill. of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482
                (10th Cir. 1990); Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir.
                1998) (finding that the Bureau of Land Management's review of Notice
                mines, which do not require agency approval before commencement of
                mining, is ``only a marginal [F]ederal action rather than a major
                action''); Winnebago Tribe of Neb. v. Ray, 621 F. 2d 269, 272 (8th Cir.
                1980) (``Factual or veto control, however, must be distinguished from
                legal control or `enablement''' (citing Med. Ctr., Inc., 584 F.2d
                619)); Atlanta Coal. on the Transp. Crisis v. Atlanta Reg'l Comm'n, 599
                F.2d 1333, 1347 (5th Cir. 1979); Ctr. for Biological Diversity v. HUD,
                541 F. Supp. 2d 1091, 1099 (D. Ariz. 2008), aff'd, Ctr. for Biological
                Diversity v. HUD, No. 09-16400, 359 Fed. Appx. 781, 2009 WL 4912592
                (9th Cir. Nov. 25, 2009) (unreported); see also Touret v. NASA, 485 F.
                Supp. 2d 38 (D.R.I. 2007).
                 As discussed in the NPRM, in these circumstances, there is no
                practical reason for an agency to conduct a NEPA analysis because the
                agency could not influence the outcome of its action to address the
                effects of the project. For example, this might include a very small
                percentage of Federal funding provided only to help design an
                infrastructure project that is otherwise funded through private or
                local funds. This change would help to reduce costs and delays by more
                clearly defining the kinds of actions that are appropriately within the
                scope of NEPA. The final rule includes these criteria in paragraph
                (q)(1)(vi) to make clear that these projects are ones where the agency
                does not exercise sufficient control and responsibility over the
                outcome of the project.
                 CEQ expects that agencies will further define these non-major
                actions, for which the agency does not exercise sufficient control and
                responsibility over the outcome of the project, in their agency NEPA
                procedures pursuant to Sec. 1507.3(d)(4). For example, agencies that
                exercise trust responsibilities over activities or decisions that occur
                on or involve land held in trust by the United
                [[Page 43348]]
                States for the benefit of an Indian Tribe, or are held in fee subject
                to a restriction against alienation, may define those activities or
                decisions that involve minimal Federal funding or involvement. In such
                circumstances, the Federal Government does not exercise sufficient
                control and responsibility over the effects of actions on Indian lands,
                and a ``but for'' causal relationship of requiring Federal approval for
                such actions is insufficient to make an agency responsible for any
                particular effects from such actions.
                 In the NPRM, CEQ also invited comment on whether there should be a
                threshold (percentage or dollar figure) for ``minimal Federal
                funding,'' and if so, what would be an appropriate threshold and the
                basis for such a threshold. CEQ did not receive sufficient information
                to establish such a threshold in the final rule.
                viii. Loans and Loan Guarantees
                 CEQ also proposed to exclude loans, loan guarantees, and other
                forms of financial assistance where the Federal agency does not
                exercise sufficient control and responsibility over the effects of the
                action. CEQ includes this in the final rule in paragraph (q)(1)(vii),
                changing ``action'' to ``such assistance'' to remove the ambiguity with
                the use of the defined term in the definition. CEQ proposed to also
                exclude the farm ownership and operating loan guarantees provided by
                the Farm Service Agency (FSA) of the U.S. Department of Agriculture
                pursuant to 7 U.S.C. 1925 and 1941 through 1949, and the business loan
                guarantee programs of the Small Business Administration (SBA), 15
                U.S.C. 636(a), 636(m), and 695 through 697f. CEQ includes these as
                examples of loan guarantees in paragraph (q)(1)(vii) and makes one
                correction to the citation to SBA's business loan guarantee programs,
                changing the final section cited from 697f to 697g.
                 By guaranteeing loans, FSA is not lending Federal funds; a
                ``guaranteed loan'' under FSA regulations is defined in 7 CFR 761.2(b)
                as a ``loan made and serviced by a lender for which the Agency has
                entered into a Lender's Agreement and for which the Agency has issued a
                Loan Guarantee.'' The FSA loan guarantees are limited statutorily to an
                amount not to exceed $1.75 million (with allowance for inflation). See
                7 U.S.C. 1925 and 1943. For fiscal year 2019, the average loan amount
                for a guaranteed operating loan is $289,393; and the average for a
                guaranteed farm ownership loan is $516,859.\114\ The relatively modest
                amounts of these loan guarantees suggest that these are not ``major''
                within the meaning of the NEPA statute and for that reason CEQ makes
                this result clear in a specific application of its definition of
                ``major Federal action.'' In determining whether Federal funding
                federalizes a non-Federal action, courts have considered whether the
                proportion of Federal funds in relation to funds from other sources is
                ``significant.'' See, e.g., Ka Makani `O Kohala Ohana Inc. v. Dep't of
                Water Supply, 295 F.3d 955, 960 (9th Cir. 2002) (``While significant
                [F]ederal funding can turn what would otherwise be a [S]tate or local
                project into a major Federal action, consideration must be given to a
                great disparity in the expenditures forecast for the [S]tate [and
                county] and [F]ederal portions of the entire program. . . . In the
                present case, the sum total of all of the [F]ederal funding that was
                ever offered . . . is less than two percent of the estimated total
                project cost.'' (alteration in original) (internal quotation marks and
                citation omitted)); Friends of the Earth, Inc. v. Coleman, 518 F.2d
                323, 329 (9th Cir. 1975) (holding Federal funding amounting to 10
                percent of the total project cost not adequate to federalize project
                under NEPA); Sancho v. Dep't of Energy, 578 F. Supp. 2d 1258, 1266-68
                (D. Haw. 2008) (Federal provision of less than 10 percent of project
                costs not sufficient to federalize project); Landmark West! v. U.S.
                Postal Serv., 840 F. Supp. 994, 1009 (S.D.N.Y. 1993), aff'd, 41 F.3d
                1500 (2d Cir. 1994) (holding U.S. Postal Service's role in private
                development of new skyscraper was not sufficient to federalize the
                project).
                ---------------------------------------------------------------------------
                 \114\ See Executive Summary for Farm Loan Programs in Fiscal
                Year 2019, https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/Farm-Loan-Programs/pdfs/program-data/FY2019_Executive_Summary.pdf. See generally https://www.fsa.usda.gov/programs-and-services/farm-loan-programs/program-data/index.
                ---------------------------------------------------------------------------
                 Furthermore, FSA loan guarantee programs do not provide any Federal
                funding to the participating borrower. Rather, FSA's role is limited to
                providing a guaranty to the private lender; no Federal funds are
                expended unless the borrower defaults on the private third-party loan,
                and the lender is unable to recover its debt through foreclosure of its
                collateral. In the event of default, the guarantee is paid to the
                lender, not to lender's borrower. FSA rarely makes guaranteed loan loss
                claim payments because delinquency rates are very low, ranging from
                between 0.98 and 1.87 percent from 2005 to 2019, and 1.62 percent in
                2019.\115\ The FSA guaranteed loan loss rates have ranged between 0.2
                and 0.6 percent during the same time period.\116\
                ---------------------------------------------------------------------------
                 \115\ See Guaranteed Loan Executive Summary, as of FY 2019,
                https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/Farm-Loan-Programs/pdfs/program-data/FLP_Guaranteed_Loan_Servicing_Executive_Summary.pdf.
                 \116\ Id.
                ---------------------------------------------------------------------------
                 For purposes of triggering NEPA, ``[t]he mere possibility of
                [F]ederal funding in the future is too tenuous to convert a local
                project into [F]ederal action.'' Pres. Pittsburgh v. Conturo, 2011 U.S.
                Dist. LEXIS 101756, at *13 (W.D. Pa. 2011). Indeed, in Sancho, the
                court observed that ``analysis of the `major Federal action'
                requirement in NEPA must focus upon [F]ederal funds that have already
                been distributed. Federal funds that have only been budgeted or
                allocated toward a project cannot be considered because they are not an
                `irreversible and irretrievable commitment of resources.' '' Sancho,
                578 F. Supp. 2d at 1267 (internal citation omitted). The court further
                stated that ``[t]he expectation of receiving future funds will not
                transform a local or state project into a federal project. . . .
                Regardless of the percentage, consideration of the budgeted future
                federal funds is not ripe for consideration in the `major Federal
                action' analysis.'' Id. Other district courts have also found that, to
                federalize a project, the Federal funding must be more than ``the
                passive deferral of a payment'' and must be provided ``primarily to
                directly further a policy goal of the funding agency.'' Hamrick v. GSA,
                107 F. Supp. 3d 910, 926 (C.D. Ill. 2015) (citing Landmark West!, 840
                F. Supp. at 1007).
                 FSA's role is to protect the financial interests of the United
                States, and its relationship is with the lender not the borrower. 7 CFR
                762.103(a). FSA's involvement is primarily to ensure the financial
                stability of the loan and ensure proper loan servicing by the lender.
                Therefore, the context of these FSA regulations does not involve NEPA
                and is not compliance-driven but only meant to ensure that, in the
                event of a default, the loan proceeds are disbursed by the lender, used
                properly, and that the project is completed and operating so as to
                produce income necessary for the loan to be repaid.
                 If a lender violates one of FSA's regulations, FSA's only remedy is
                not to pay the loss claim in the event of a liquidation. FSA does not
                possess control or actual decision-making authority over the lender's
                issuance of the loan, the funded facility, or operations of the
                borrower. Courts have
                [[Page 43349]]
                recognized Federal agencies do not have sufficient control over loan
                guarantees to trigger NEPA. See, e.g., Ctr. for Biological Diversity,
                541 F. Supp. 2d 1091, aff'd, Ctr. for Biological Diversity, No. 08-
                16400, 359 F. Appx. 781 (``The agencies guarantee loans issued by
                private lenders to qualified borrowers, but do not approve or undertake
                any of the development projects at issue. The agencies' loan guarantees
                have such a remote and indirect relationship to the watershed problems
                allegedly stemming from the urban development that they cannot be held
                to be a legal cause of any effects on the protected species for
                purposes of either the ESA or the NEPA.'' Ctr. for Biological
                Diversity, No. 08-16400, 359 F. Appx. at 783). ``The [F]ederal agency
                must possess actual power to control the nonfederal activity.'' Hodel,
                848 F.2d at 1089, overruled on other grounds by Vill. of Los Ranchos de
                Albuquerque v. Marsh, 956 F.2d 970.
                 SBA's business loan programs include general business loan programs
                (7(a) Program), authorized by section 7(a) of the Small Business Act,
                15 U.S.C. 636(a); the microloan demonstration loan program (Microloan
                Program), authorized by section 7(m) of the Small Business Act, 15
                U.S.C. 636(m); and the development company program (504 Program), which
                is a jobs-creation program, authorized by Title V of the Small Business
                Investment Act of 1958, 15 U.S.C. 695-697g. Under all of these
                programs, SBA does not recruit or work with the borrower, or service
                the loan unless, following a default in payment, the lender has
                collected all that it can under the loan.
                 Under the 7(a) Program, SBA guarantees a percentage of the loan
                amount extended by a commercial lender to encourage such lenders to
                make loans to eligible small businesses. The lender seeks and receives
                the guaranty, not the applicant small business. In over 80 percent of
                loans stemming from the 7(a) Program, the lender approves the loan
                without SBA's prior review and approval through the 7(a) Program's
                Preferred Lender Program (``PLP program'').\117\ Further, SBA does not
                expend Federal funds unless there is a default by the borrower in
                paying the loan; in such cases, SBA reimburses the lender in accordance
                with SBA's guarantee percentage. The maximum amount for a standard loan
                under the 7(a) program is $5 million, while various 7(a) loans have
                lesser maximum amounts of $500,000 or less.\118\
                ---------------------------------------------------------------------------
                 \117\ Pursuant to the Small Business Act, under the PLP program,
                SBA delegates responsibility to experienced and qualified lenders to
                issue an SBA guarantee on a loan without prior approval by SBA. The
                PLP program is defined as a ``program established by the
                Administrator . . . under which a written agreement between the
                lender and the Administration delegates to the lender . . . complete
                authority to make and close loans with a guarantee from the
                Administration without obtaining the prior specific approval of the
                Administration . . . .'' 15 U.S.C. 636(a)(2)(C)(iii). Thus, PLP
                program lenders have delegated authority to make SBA-guaranteed
                loans without any approval from SBA.
                 \118\ 15 U.S.C. 636(a).
                ---------------------------------------------------------------------------
                 Under the Microloan Program, recipient entities can obtain loans,
                up to $50,000, for certain, limited purposes. SBA provides funds to
                designated intermediary lenders, which are non-profit, community-based
                organizations. Each of the lenders has its own lending and credit
                requirements, and the lenders extend the microloan financing.
                Recipients only may use the funds for working capital, inventory or
                supplies, furniture or fixtures, or machinery or equipment. They cannot
                purchase real estate or pay existing debt.
                 Under the 504 Program, small businesses can obtain long-term,
                fixed-rate financing to acquire or improve capital assets. Certified
                Development Companies (CDCs), which are private, mostly non-profit,
                corporations certified by SBA to promote local and community economic
                development, implement the program. Typically, a 504 Program project is
                funded by three sources: (1) A loan, secured with a senior lien, from a
                private-sector lender for 50 percent of the project costs; (2) an
                equity contribution from the borrower of at least 10 percent of the
                project costs; and (3) a loan covering up to 40 percent of the total
                costs, which is funded by proceeds from the sale to investors of an
                SBA-guaranteed debenture issued by a CDC.\119\ The 504's Premier
                Certified Lender Program (``PCLP program'') provides for only limited
                SBA review of eligibility, and SBA delegates the responsibility to CDCs
                to issue an SBA guarantee of debenture for eligible loans without prior
                approval by SBA. 15 U.S.C. 697e.\120\ Under the 504 program, the
                maximum loan amount is $5 million, although small manufacturers or
                certain energy projects, including energy efficiency or renewable
                generation projects, may qualify for a $5.5 million debenture.\121\ SBA
                does not expend Federal funds unless there is a default by the borrower
                in paying the debenture-funded loan, in which case SBA pays the
                outstanding balance owed on the debenture to the investors. SBA expends
                Federal funds on its loan guarantee programs only when expected losses
                from defaults exceed expected fee collections. Section 7(a) and 504
                loan program delinquency rates are 0.8 percent and 0.7 percent as of
                July 2019 respectively.\122\
                ---------------------------------------------------------------------------
                 \119\ In the 504 program, SBA guarantees payments of debentures,
                which are bonds sold to investors. The proceeds from the sale of the
                debentures are used to fund the underlying loans to borrowers.
                 \120\ Congress has mandated that guaranteed loans made by PCLPs
                shall not include SBA ``review of decisions by the lender involving
                creditworthiness, loan closing, or compliance with legal
                requirements imposed by law or regulation.'' 15 U.S.C. 697e(e)(2).
                 \121\ 15 U.S.C. 696(2)(A).
                 \122\ See SBA Fiscal Year 2019 Agency Financial Report at 22,
                available at https://www.sba.gov/document/report--agency-financial-report.
                ---------------------------------------------------------------------------
                 CEQ has determined that FSA and SBA do not have sufficient control
                and responsibility over the underlying activities to meet the
                definition of major Federal action. The issuance of loan guarantees to
                a non-Federal lender to back a percentage of a loan that the lender
                decides to make to a private, third-party borrower is insufficient
                control or authority over the underlying project. See Rattlesnake
                Coal., 509 F.3d at 1102 (``The United States must maintain decision
                making authority over the local plan in order for it to become a major
                [F]ederal action.''); Ka Makani, 295 F.3d at 961 (``Because the final
                decision-making power remained at all times with [the State agency], we
                conclude that the [Federal agency] involvement was not sufficient to
                constitute `major [F]ederal action.' '' (quoting Barnhart, 906 F.2d at
                1482)); S. Fla. Water Mgmt. Dist., 28 F.3d at 1572 (``The [F]ederal
                agency must possess actual power to control the nonfederal activity.''
                (citation omitted)).
                 CEQ also invited comment on whether any other types of financial
                instruments should be considered non-major Federal actions and the
                basis for such exclusion. CEQ did not receive sufficient comments to
                make any additional changes to the definition of major Federal action
                with respect to other financial instruments.
                ix. Other Changes to Major Federal Action
                 In the final rule, paragraphs (q)(2) and (3) include the examples
                of activities and decisions that are in 40 CFR 1508.18(a) and (b). CEQ
                invited comment on whether it should change ``partly'' to
                ``predominantly'' in paragraph (q)(2) for consistency with the edits to
                the introductory text regarding ``minimal Federal funding.'' CEQ does
                not make this change in the final rule. CEQ notes that ``continuing''
                activities in paragraph (q)(2) refers to situations where a major
                Federal action remains to occur, consistent with Sec. 1502.9(d) and
                Norton v. Southern Utah Wilderness Alliance. 542 U.S. at 73.
                [[Page 43350]]
                 CEQ proposed to insert ``implementation of'' before ``treaties'' in
                proposed paragraph (q)(2)(i) to clarify that the major Federal action
                is not the treaty itself, but rather an agency's action to implement
                that treaty. CEQ makes this change in Sec. 1508.1(q)(3)(i) of the
                final rule and clarifies that this includes an agency's action to
                implement a treaty pursuant to statute or regulation. CEQ also changes
                ``pursuant to'' to ``under'' the APA and adds a reference to ``other
                statutes'' after the APA. While agencies conduct the rulemaking process
                pursuant to the APA, they also may do so under the authority of the
                specific statutes.
                 CEQ proposed to strike ``guide'' from proposed paragraph (q)(2)(ii)
                because guidance is non-binding. CEQ makes this change in the final
                rule in Sec. 1508.1(q)(3)(ii).
                 Finally, CEQ invited comment in the NPRM on whether CEQ should
                further revise the definition of ``major Federal action'' to exclude
                other per se categories of activities or to further address what NEPA
                analysts have called ``the small handle problem.'' \123\ CEQ did not
                receive sufficient information to make any additional changes.
                ---------------------------------------------------------------------------
                 \123\ See Daniel R. Mandelker et al., NEPA Law and Litigation,
                sec. 8:20 (2d ed. 2019) (``This problem is sometimes called the
                `small handle' problem because [F]ederal action may be only be a
                `small handle' on a non[-F]ederal project.'').
                ---------------------------------------------------------------------------
                18. Definition of ``Matter''
                 The NPRM did not propose any changes to the definition of matter in
                paragraph (r). CEQ did not revise this definition in the final rule.
                19. Clarifying the Meaning of ``Mitigation''
                 CEQ proposed to amend the definition of ``mitigation'' to define
                the term and clarify that NEPA does not require adoption of any
                particular mitigation measure, consistent with Methow Valley, 490 U.S.
                at 352-53. In Methow Valley, the Supreme Court held that NEPA and the
                CEQ regulations require ``that mitigation be discussed in sufficient
                detail to ensure that environmental consequences have been fairly
                evaluated,'' but do not establish ``a substantive requirement that a
                complete mitigation plan be actually formulated and adopted'' before
                the agency can make its decision. Id. at 352.
                 CEQ also proposed to amend the definition of ``mitigation'' to make
                clear that mitigation must have a nexus to the effects of the proposed
                action, is limited to those actions that have an effect on the
                environment, and does not include actions that do not have an effect on
                the environment. This change will make the NEPA process more effective
                by clarifying that mitigation measures must actually be designed to
                mitigate the effects of the proposed action. This amended definition is
                consistent with CEQ's Mitigation Guidance, supra note 29.
                 Under that guidance, if an agency believes that the proposed action
                will provide net environmental benefits through use of compensatory
                mitigation, the agency should incorporate by reference the documents
                that demonstrate that the proposed mitigation will be new or in
                addition to actions that would occur under the no-action alternative,
                and the financial, legal, and management commitments for the
                mitigation. Use of well-established mitigation banks and similar
                compensatory mitigation legal structures should provide the necessary
                substantiation for the agency's findings on the effectiveness (nexus to
                effects of the action, proportionality, and durability) of the
                mitigation. Other actions may be effectively mitigated through use of
                environmental management systems that provide a structure of procedures
                and policies to systematically identify, evaluate, and manage
                environmental impacts of an action during its implementation.\124\
                ---------------------------------------------------------------------------
                 \124\ See Council on Environmental Quality, Aligning National
                Environmental Policy Act Processes with Environmental Management
                Systems (Apr. 2007), https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf.
                ---------------------------------------------------------------------------
                 CEQ makes the proposed changes in the final rule with minor edits
                to improve clarity. Specifically, CEQ replaces ``reasonably foreseeable
                impacts to the human environment'' with ``effects'' to more precisely
                refer to the defined term ``effects.'' In response to comments, CEQ
                also adds ``or alternatives'' after ``proposed action'' to clarify that
                mitigation measures mean measures to avoid, minimize, or compensate for
                effects caused by a proposed action or its alternatives. CEQ also
                replaces ``the effects of a proposed action'' with ``those effects'' to
                reduce wordiness and provide additional clarity.
                20. Definition of ``NEPA Process''
                 The NPRM did not propose any changes to the definition of NEPA
                process in paragraph (t). CEQ did not revise this definition in the
                final rule.
                21. Clarifying the Meaning of ``Notice of Intent''
                 CEQ proposed to revise the definition of ``notice of intent'' in
                paragraph (u) to move the operative requirements for what agencies must
                include in the notices to Sec. 1501.9(d) and add the word ``public''
                to clarify that the NOI is a public notice. CEQ makes these changes in
                the final rule.
                22. New Definition of ``Page''
                 CEQ proposed a new definition of ``page'' in paragraph (v) to
                provide a word count (500 words) for a more standard functional
                definition of ``page'' for page count and other NEPA purposes. CEQ adds
                this definition as proposed to the final rule. As discussed in the
                NPRM, this change updates NEPA for modern electronic publishing and
                internet formatting, in which the number of words per page can vary
                widely depending on format. It also ensures some uniformity in document
                length while allowing unrestricted use of the graphic display of
                quantitative information, tables, photos, maps, and other geographic
                information that can provide a much more effective means of conveying
                information about environmental effects. This change supports the
                original CEQ page limits as a means of ensuring that environmental
                documents are readable and useful to decision makers.
                23. New Definition of ``Participating Agency''
                 CEQ proposed to add the concept of a participating agency to the
                CEQ regulations in paragraph (w). CEQ proposed to define participating
                agency consistent with the definition in FAST-41 and 23 U.S.C. 139. CEQ
                proposed to add participating agencies to Sec. 1501.7(i) regarding the
                schedule and replace the term ``commenting'' agencies with
                ``participating'' agencies throughout. CEQ adds this definition as
                proposed to the final rule.
                24. Clarifying the Meaning of ``Proposal''
                 CEQ proposed clarifying edits to the definition of proposal in
                paragraph (x) and to strike the operative language regarding timing of
                an EIS because it is already addressed in Sec. 1502.5. CEQ makes these
                changes in the final rule.
                25. New Definition of ``Publish and Publication''
                 CEQ proposed to define publish and publication in paragraph (y) to
                provide agencies with the flexibility to make environmental reviews and
                information available to the public by electronic means. The 1978
                regulations predate personal computers and a wide range of technologies
                now used by agencies such as the modern internet and GIS mapping tools.
                To ensure that agencies do not exclude the affected public from the
                NEPA process due to a lack of resources (often referred to as the
                ``digital
                [[Page 43351]]
                divide''), the definition retains a provision for printed environmental
                documents where necessary for effective public participation. CEQ adds
                this definition as proposed in the final rule.
                26. New Definition of ``Reasonable Alternatives''
                 Several ANPRM commenters asked CEQ to include a new definition of
                ``reasonable alternatives'' in the regulations with emphasis on how
                technical and economic feasibility should be evaluated. CEQ proposed a
                new definition of ``reasonable alternatives'' in paragraph (z) to
                provide that reasonable alternatives must be technically and
                economically feasible and meet the purpose and need of the proposed
                action. See, e.g., Vt. Yankee, 435 U.S. at 551 (``alternatives must be
                bounded by some notion of feasibility''). CEQ also proposed to define
                reasonable alternatives as ``a reasonable range of alternatives'' to
                codify Questions 1a and 1b in the Forty Questions, supra note 2.
                Agencies are not required to give detailed consideration to
                alternatives that are unlikely to be implemented because they are
                infeasible, ineffective, or inconsistent with the purpose and need for
                agency action.
                 Finally, CEQ proposed to clarify that a reasonable alternative must
                also consider the goals of the applicant when the agency's action
                involves a non-Federal entity. These changes will help reduce paperwork
                and delays by helping to clarify the range of alternatives that
                agencies must consider. Where the agency action is in response to an
                application for permit or other authorization, the agency should
                consider the applicant's goals based on the agency's statutory
                authorization to act, as well as other congressional directives, in
                defining the proposed action's purpose and need. CEQ adds this
                definition as proposed in the final rule.
                27. New Definition of ``Reasonably Foreseeable''
                 CEQ received comments on the ANPRM requesting that the regulations
                provide a definition of ``reasonably foreseeable.'' CEQ proposed to
                define ``reasonably foreseeable'' in paragraph (aa) consistent with the
                ordinary person standard--that is what a person of ordinary prudence in
                the position of the agency decision maker would consider in reaching a
                decision. Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992). CEQ
                adds this definition as proposed in the final rule.
                28. Definition of ``Referring Agency''
                 CEQ proposed a grammatical edit to the definition of referring
                agency in paragraph (bb). CEQ makes this change in the final rule.
                29. Definition of ``Scope''
                 CEQ proposed to move the operative language from paragraph (cc),
                which tells agencies how to determine the scope of an EIS, to Sec.
                1501.9(e). CEQ makes this change in the final rule.
                30. New Definition of ``Senior Agency Official''
                 CEQ proposed to define the new term ``senior agency official'' in
                paragraph (dd) to provide for agency officials that are responsible for
                the agency's NEPA compliance. As reflected in comments, implementation
                of NEPA can require significant agency resources. Without senior agency
                official leadership and effective management of NEPA reviews, the
                process can be lengthy, costly, and subject to uncertainty and delays.
                CEQ seeks to advance efficiencies to ensure that agencies use their
                limited resources to effectively consider environmental impacts and
                support timely and informed decision making by the Federal Government.
                CEQ adds this definition with some changes in the final rule.
                Specifically, CEQ does not include the phrase ``and representing agency
                analysis of the effects of agency actions on the human environmental in
                agency decision-making processes'' because the duties and
                responsibilities of the ``senior agency official,'' including
                representing the agency, are discussed in various provisions of the
                subchapter. See Sec. Sec. 1501.5(f), 1501.7(d), 1501.8(b)(6) and (c),
                1501.10, 1502.7, 1507.2.
                31. Definition of ``Special Expertise''
                 The NPRM did not propose any changes to the definition of special
                expertise in paragraph (ee). CEQ did not revise this definition in the
                final rule.
                32. Striking the Definition of ``Significantly''
                 Because 40 CFR 1508.27 did not define ``significantly,'' but rather
                set out factors for agencies to consider in assessing whether a
                particular effect is significant, CEQ proposed to strike this
                definition and discuss significance in Sec. 1501.3(b), as described in
                section II.C.3. CEQ makes this change in the final rule.
                33. Clarifying the Meaning of ``Tiering''
                 CEQ proposed to amend the definition of ``tiering'' in paragraph
                (ff) to make clear that agencies may use EAs at the programmatic stage
                as well as the subsequent stages. This clarifies that agencies have
                flexibility in structuring programmatic NEPA reviews and associated
                tiering. CEQ proposed to move the operative language describing how any
                agency determines when and how to tier from 40 CFR 1508.28 to Sec.
                1501.11(b). CEQ makes these changes in the final rule.
                K. CEQ Guidance Documents
                 In the proposed rule, CEQ stated that if the proposal was adopted
                as a final rule, it would supersede any previous CEQ NEPA guidance and
                handbooks. With this final rule, CEQ clarifies that it will provide
                notice in the Federal Register listing withdrawn guidance. CEQ will
                issue updated or new guidance consistent with Presidential directives.
                CEQ also intends to update the Citizen's Guide to NEPA.\125\
                ---------------------------------------------------------------------------
                 \125\ Supra note 29.
                ---------------------------------------------------------------------------
                III. Rulemaking Analyses and Notices
                A. Executive Order 12866, Regulatory Planning and Review and Executive
                Order 13563, Improving Regulation and Regulatory Review
                 E.O. 12866 \126\ directs 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,
                and other advantages; distributive impacts; and equity. E.O. 13563
                \127\ reaffirms E.O. 12866, and directs agencies to use a process that
                provides for public participation in developing rules; promotes
                coordination, simplification, and harmonization; and reduces burdens
                and maintains flexibility.
                ---------------------------------------------------------------------------
                 \126\ 58 FR 51735 (Oct. 4, 1993).
                 \127\ 76 FR 3821 (Jan. 21, 2011).
                ---------------------------------------------------------------------------
                 Section 3(f) of E.O. 12866 sets forth the four categories of
                regulatory action that meet the definition of a significant regulatory
                action. The first category includes rules that have an annual effect on
                the economy of $100 million or adversely affect in a material way the
                economy, a sector of the economy, productivity, competition, jobs, the
                environment, public health or safety, or State, Tribal, or local
                governments or communities. Some commenters stated that this rulemaking
                would have such an effect, and therefore CEQ should have prepared a
                regulatory impact statement. Commenters noted, for example, proposed
                changes to the definition of effects, alternatives analysis, and
                overall effect on the number of Federal actions subject to NEPA as
                examples of impacts
                [[Page 43352]]
                contributing to an impact of over $100 million on the public.
                 CEQ agrees that this an economically significant action. However,
                many of the changes made in this rule codify long-standing practices
                and case law that have developed since CEQ issued the 1978 regulations.
                Under OMB Circular A-4, ``Regulatory Analysis'' (Sept. 17, 2003),\128\
                the ``no action'' baseline is ``what the world will be like if the
                proposed rule is not adopted.'' Changes to the regulations based on
                long-standing guidance and Supreme Court case law would be included in
                the baseline for the rule; therefore, their codification would generate
                marginal cost savings. Similarly, changes that clarify or otherwise
                improve the ability to interpret and implement the regulations would
                have little to no quantifiable impact. The appendix to the Regulatory
                Impact Analysis for the Final Rule, Update to the Regulations
                Implementing the Procedural Provisions of the National Environmental
                Policy Act \129\ (``RIA Appendix'') provides a summary of the
                anticipated economic and environmental impacts associated with the
                changes in the final rule. In evaluating economic and environmental
                impacts, CEQ has considered the statute and Supreme Court case law, and
                the 1978 regulations. As discussed throughout Section II and the Final
                Rule Response to Comments, CEQ has made revisions to better align the
                regulations with the statute, codify Supreme Court case law and current
                agency practice, improve the timeliness and efficiency of the NEPA
                process, and make other changes to improve the clarity and readability
                of the regulations.
                ---------------------------------------------------------------------------
                 \128\ 68 FR 58366 (Oct. 10, 2003).
                 \129\ The Regulatory Impact Analysis for the Final Rule, Update
                to the Regulations Implementing the Procedural Provisions of the
                National Environmental Policy Act is available under ``Supporting
                Documents'' in the docket on regulations.gov under docket ID CEQ-
                2019-0003.
                ---------------------------------------------------------------------------
                 The revisions to CEQ's regulations are anticipated to significantly
                lower administrative costs as a result of changes to reduce unnecessary
                paperwork. Government-wide, the average number of pages for a final EIS
                is approximately 661 pages. The final rule includes numerous changes to
                reduce the duplication of paperwork and establishes presumptive page
                limits for EAs of 75 pages, and for EISs of 150 pages (or 300 pages for
                proposals of unusual scope or complexity).\130\ However, agencies may
                request longer page limits with approval from a senior agency official
                and include additional material as appendices. The final rule also
                makes numerous changes to improve the efficiency of the NEPA process
                and establishes presumptive time limits for EAs of one year and for
                EISs of two years, which may be extended with approval of a senior
                agency official. CEQ expects the final rule to reduce the length of EAs
                and EISs, and the time for completing and these analyses, and to lower
                administrative costs government-wide.
                ---------------------------------------------------------------------------
                 \130\ The 1978 regulations recommended the same page limits for
                EISs but did not include provisions requiring agencies to meet those
                page limits. 40 CFR 1502.7.
                ---------------------------------------------------------------------------
                 A total of 1,276 EISs were completed from 2010 through 2018, and
                the median EIS completion time was 3.5 years with only 257 EISs
                completed in 2 years or less.\131\ Based on the efficiencies and
                presumptive time limit for EISs in the final rule, the length of time
                to complete the 1019 EISs that took longer than 2 years could be
                reduced by 58 percent, assuming a 2-year completion time for all of
                those actions. Applying this potential time savings to the total
                administrative cost to prepare those EISs taking in excess of 2 years
                could result in roughly $744 million in savings over the 9-year time
                period for an annualized savings of roughly $83 million (2016 adjusted
                dollars).\132\ The amount of time required to prepare an EIS does not
                necessarily correlate with the total cost. However, for those EISs
                taking over two years to prepare, comparing the anticipated time
                savings with the respective administrative costs provides insight into
                the potential cost savings that an agency may generate under the final
                rule. Additionally, CEQ notes that there may be cost savings related to
                the preparation of EAs and application of CEs. While the cost of these
                actions is significantly lower, agencies conduct such reviews in much
                larger numbers than EISs.
                ---------------------------------------------------------------------------
                 \131\ See Council on Environmental Quality, EIS Timeline Data
                Excel Workbook, (June 12, 2020), https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Data_2020-6-12.xlsx.
                 \132\ This calculation uses the mid-point ($1.125 million) of
                the $250,000 to $2 million cost range found in the NEPA Task Force
                report and assumes a 58 percent reduction in costs for those EISs
                taking longer than 2 years. NEPA Task Force Report, supra, note 28.
                This number is similar to the cost data from the Department of
                Energy, which found a median EIS cost of $1.4 million. GAO NEPA
                Report, supra, note 91.
                ---------------------------------------------------------------------------
                 Agencies have not routinely tracked costs of completing NEPA
                analyses.\133\ With implementation of this final rule, in particular
                Sec. 1502.11(g), agencies will be required to provide the estimated
                total cost of preparing an EIS. CEQ expects this will begin to address
                the data gap that currently exists relating to the administrative costs
                of NEPA compliance.
                ---------------------------------------------------------------------------
                 \133\ As noted above, a 2014 U.S. Government Accountability
                Office report found that Federal agencies do not routinely track
                data on the cost of completing NEPA analyses, and that the cost can
                vary considerably, depending on the complexity and scope of the
                project. GAO NEPA Report, supra note 91.
                ---------------------------------------------------------------------------
                 CEQ expects these and other changes in the final rule to catalyze
                economic benefits by expediting some reviews, including through
                improved coordination and management and less focus on non-significant
                impacts. Commenters from industry on both the ANPRM and proposed rule
                frequently discussed that delays under the 1978 regulations resulted in
                higher costs; however, these costs are difficult to quantify. One
                estimate in 2015 found that the cost of a 6-year delay in
                infrastructure projects across the electricity transmission, power
                generation, inland waterways, roads and bridges, rail, and water (both
                drinking and wastewater) sectors is $3.7 trillion,\134\ which was
                subsequently updated to $3.9 trillion in 2018.\135\ There may be
                underlying permits and consultations (e.g., the Endangered Species Act)
                and other issues that contribute to a delay and therefore allocating a
                portion of the cost to the NEPA process would be challenging.
                ---------------------------------------------------------------------------
                 \134\ Two Years, Not Ten, supra note 4.
                 \135\ Press Release, Common Good, Common Good Updates the Cost
                of US Infrastructure Delays Costs Have Risen $200 Billion Over Five
                Years to Nearly $3.9 Trillion (May 2018), https://www.commongood.org/wp-content/uploads/2018/05/Two-Years-Update.pdf.
                ---------------------------------------------------------------------------
                 NEPA is a procedural statute requiring agencies to disclose and
                consider potential environmental effects in their decision-making
                processes. The final rule does not alter any substantive environmental
                law or regulation such as the Clean Air Act, the Clean Water Act, and
                the Endangered Species Act. Under the final rule, agencies will
                continue to consider all significant impacts to the environment.
                Although some may view the changes in the final rule as reducing the
                number or scope of analyses, CEQ has determined that, using a baseline
                of the statutory requirements of NEPA and Supreme Court case law, there
                are no adverse environmental impacts (see RIA Appendix).
                 OMB has determined that this final rule is an economically
                significant regulatory action because it may have an annual effect on
                the economy of $100 million or more associated with lower
                administrative costs and reduced paperwork and delays in the
                environmental review process. This rule sets forth the government-wide
                process for implementing NEPA in a consistent and coordinated manner.
                The rule will also require agencies to update their existing NEPA
                procedures for
                [[Page 43353]]
                consistency with the changes set forth in this final rule.
                B. Executive Order 13771, Reducing Regulation and Controlling
                Regulatory Costs
                 Under E.O. 13771,\136\ agencies must identify for elimination two
                prior regulations for every one regulation issued, and promulgate
                regulations consistent with a regulatory budget. This rule is a
                deregulatory action under E.O. 13771 and OMB's guidance implementing
                E.O. 13771, titled ``Reducing Regulation and Controlling Regulatory
                Costs'' (April 5, 2017).\137\ CEQ anticipates that the changes made in
                this rule will reduce unnecessary paperwork and expedite some reviews
                through improved coordination and management.
                ---------------------------------------------------------------------------
                 \136\ 82 FR 9339 (Feb. 3, 2017).
                 \137\ Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
                ---------------------------------------------------------------------------
                C. Regulatory Flexibility Act and Executive Order 13272, Proper
                Consideration of Small Entities in Agency Rulemaking
                 The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et
                seq., and E.O. 13272 \138\ require agencies to assess the impacts of
                proposed and final rules on small entities. Under the RFA, small
                entities include small businesses, small organizations, and small
                governmental jurisdictions. An agency must prepare a regulatory
                flexibility analysis at the proposed and final rule stages unless it
                determines and certifies that the rule, if promulgated, would not have
                a significant economic impact on a substantial number of small
                entities. 5 U.S.C. 605(b). An agency need not perform an analysis of
                small entity impacts when a rule does not directly regulate small
                entities. See Mid-Tex Electric Coop., Inc. v. FERC, 773 F.2d 327 (D.C.
                Cir. 1985). This rule does not directly regulate small entities.
                Rather, it applies to Federal agencies and sets forth the process for
                their compliance with NEPA. As noted above, NEPA is a procedural
                statute requiring agencies to disclose and consider potential
                environmental effects in their decision-making processes, and does not
                alter any substantive environmental law or regulation. Under the final
                rule, agencies will continue to consider all significant impacts to the
                environment.
                ---------------------------------------------------------------------------
                 \138\ 67 FR 53461 (Aug. 16, 2002).
                ---------------------------------------------------------------------------
                 A few commenters asserted that the rule would impact small
                entities, including small businesses that provide services relating to
                the preparation of NEPA documents, outdoor recreation businesses, and
                other related small businesses. To the extent that the rule may affect
                small entities, this rulemaking will make the NEPA process more
                efficient and consistent and clarify the procedural requirements, which
                CEQ expects to directly benefit Federal agencies and indirectly benefit
                all other entities engaged in the process, including applicants seeking
                a Federal permit and those engaged in NEPA compliance activities. In
                addition, CEQ expects that small businesses and farmers seeking SBA or
                FSA guaranteed loans will indirectly benefit from the clarifying
                revisions in the final rule to the definition of major Federal action.
                Accordingly, CEQ hereby certifies that the rule will not have a
                significant economic impact on a substantial number of small entities.
                D. Congressional Review Act
                 Before a rule can take effect, the Congressional Review Act (CRA)
                requires agencies to submit to the House of Representatives, Senate,
                and Comptroller General a report containing a copy of the rule and a
                statement identifying whether it is a ``major rule.'' 5 U.S.C. 801. OMB
                determines if a final rule constitutes a major rule. The CRA defines a
                major rule as any rule that the Administrator of OMB's Office of
                Information and Regulatory Affairs finds has resulted in or is likely
                to result in--(A) an annual effect on the economy of $100,000,000 or
                more; (B) a major increase in costs or prices for consumers, individual
                industries, Federal, State, or local government agencies, or geographic
                regions, or (C) significant adverse effects on competition, employment,
                investment, productivity, innovation, or on the ability of United
                States-based enterprises to compete with foreign-based enterprises in
                domestic and export markets. 5 U.S.C. 804(2).
                 OMB has determined that this final rule is a major rule for
                purposes of the Congressional Review Act. CEQ will submit a report,
                including the final rule, to both houses of Congress and the Government
                Accountability Office for review.
                E. National Environmental Policy Act
                 Under the CEQ regulations, major Federal actions may include
                regulations. When CEQ issued regulations in 1978, it prepared a
                ``special environmental assessment'' for illustrative purposes pursuant
                to E.O. 11991. 43 FR at 25232. The NPRM for the 1978 regulations stated
                ``the impacts of procedural regulations of this kind are not
                susceptible to detailed analysis beyond that set out in the
                assessment.'' Id. Similarly, in 1986, while CEQ stated in the final
                rule that there were ``substantial legal questions as to whether
                entities within the Executive Office of the President are required to
                prepare environmental assessments,'' it also prepared a special
                environmental assessment. 51 FR at 15619. The special environmental
                assessment issued in 1986 made a finding of no significant
                environmental impact, and there was no finding made for the assessment
                of the 1978 regulations.
                 Some commenters expressed the view that CEQ failed to comply with
                NEPA when publishing the proposed rule that precedes this final rule,
                and CEQ should have prepared an EA or EIS. The commenters stated that
                section 102(2)(C) of NEPA requires environmental review of major
                Federal actions. By not conducting an environmental review under NEPA,
                commenters stated that CEQ violated its own regulations and past
                practices in prior regulations. Other commenters stated that NEPA
                review was required if the proposed rule ``created the possibility'' of
                significant impacts on the environment. They asserted that the proposed
                rule was a ``sweeping re-write'' of the 1978 regulations that would
                alter Federal agencies' consideration of environmental effects of
                proposed projects. Aspects of the proposed rule that were referenced in
                this regard include expanded use of CEs, narrow definitions of
                significance and effects, weakened alternatives analysis, and reduced
                public participation and agency accountability. Commenters asserted
                that the consequence of these changes is truncated analysis, a less
                informed public, and less mitigation.
                 CEQ disagrees with commenters. CEQ prepared a special assessment on
                its prior rules for illustrative purposes. Those long-prior voluntary
                decisions do not forever establish that CEQ has an obligation to apply
                the CEQ's regulations to changes to those regulations. As noted above,
                CEQ has the authority to promulgate and revise its regulations
                consistent with Chevron and other applicable case law.
                 This rule would not authorize any activity or commit resources to a
                project that may affect the environment. Similar to the 1978
                regulations, these regulations do not concern any particular
                environmental media, nor are the regulations tied to a specific
                environmental setting. Rather, these regulations apply generally to
                Federal actions affecting the environment. No action under the
                regulations or specific issue or problem is singled out for special
                consideration. See Council on Environmental Quality, Special
                [[Page 43354]]
                Environmental Assessment of Regulations Proposed Under E.O. 11991 to
                Implement the Procedural Provisions of the National Environmental
                Policy Act, p. 6 (1978). Further, as stated by CEQ when it proposed the
                regulations in 1978, procedural rules of this kind are not susceptible
                to detailed analysis. 43 FR at 25232.
                 Even if CEQ were required to prepare an EA, it likely would result
                in a FONSI. CEQ has reviewed the changes made in this final rule and
                determined that they would not result in environmental impacts. See RIA
                Appendix. For reasons explained in the respective areas of this
                preamble and further summarized in the RIA Appendix, CEQ disagrees that
                the clarifications and changes to the processes that Federal agencies
                follow when relying on CEs, analyzing alternatives, and engaging the
                public will themselves result in any environmental impacts, let alone
                potentially significant impacts. This thorough review, in combination
                with the aforementioned circumstances of the special environmental
                assessments prepared for the 1978 and 1986 regulations, and the
                procedural nature of these regulations, reinforces CEQ's view that an
                EA is neither required nor necessary.
                 Moreover, preparing an EA for the final rule would not meaningfully
                inform CEQ or the public. The clarifications and changes in the final
                rule are entirely procedural and will help to inform the processes used
                by Federal agencies to evaluate the environmental effects of their
                proposed actions in the future.
                 For reasons explained in the respective areas of this preamble and
                further summarized in the RIA Appendix, CEQ disagrees that changes
                relating to CEs, analysis of alternatives, public participation, and
                agency responsibilities will have environmental impacts, let alone
                potentially significant ones.
                 In addition, commenters referenced several court opinions in
                support of their view that an agency's interpretation of a statute can
                be subject to NEPA review when that interpretation can lead to
                subsequent, significant effects on the environment, including Citizens
                for Better Forestry v. U.S. Dep't of Agric., 481 F. Supp. 2d 1059 (N.D.
                Cal. 2007) and Sierra Club v. Bosworth, 510 F. 3d 1016 (9th Cir. 2007).
                Commenters stated that CEQ was required to request comment on the
                appropriate scope of the environmental review of the proposed rule and
                then prepare, and notice for public comment, an EIS before or in tandem
                with its publication.
                 The circumstances in this rule are distinctly different from the
                case law referenced by commenters. Citizens for Better Forestry
                pertains to the misapplication of an existing CE, where the court found
                that the agency improperly expanded the scope of an existing CE when
                applying it to a National Forest Management Act rulemaking. 481 F.
                Supp. at 1086. In Sierra Club v. Bosworth, the court agreed with
                previous cases finding that the promulgation of agency NEPA procedures,
                including the establishment of new CEs, did not itself require
                preparation of an EA or EIS, but that agencies need only comply with
                CEQ regulations setting forth procedural requirements, including
                consultation with CEQ, and Federal Register publication for public
                comment (40 CFR 1507.3). 510 F.3d at 1022. The court, however, found
                that the record relied on by the U.S. Forest Service to develop and
                justify a CE was deficient. Id. at 1026-30. Neither of the
                circumstances in those cases is comparable to the circumstances of this
                rule. Further, in another relevant case, Heartwood v. U.S. Forest
                Service, the court found that neither NEPA nor the CEQ regulations
                required the agency to conduct an EA or an EIS prior to the
                promulgation of its procedures creating a CE. 230 F.3d 947, 954-55 (7th
                Cir. 2000).
                 This rule serves as the primary regulation from which agencies
                develop procedures to implement the statute. To prepare an EIS, as some
                commenters had requested, would necessitate that CEQ apply the 1978
                regulations to a rule that revises those same regulations. There is no
                indication that the statute contemplated such circumstances, and CEQ is
                not aware of other examples in law where the revisions to procedural
                rules were subject to the requirements of the rule that those same
                rules replaced. Further, the 1978 regulations do not require agencies
                to prepare a NEPA analysis before establishing or updating agency
                procedures for implementing NEPA. Since this rule would not authorize
                any activity or commit resources to a project that may affect the
                environment, preparation of an environmental review is not required.
                F. Endangered Species Act
                 Under the ESA, the promulgation of regulations can be a
                discretionary agency action subject to section 7 of the ESA. CEQ has
                determined that updating its regulations implementing the procedural
                provisions of NEPA has ``no effect'' on listed species and critical
                habitat. Therefore, ESA section 7 consultation is not required.
                 Commenters stated that consultation with the Fish and Wildlife
                Service and the National Marine Fisheries Service is required because
                the rule may affect or may adversely affect species listed under the
                ESA. In support of this point, commenters referenced proposed changes
                to the definition of ``effects'' and ``significantly,'' development of
                alternatives, and obligations for agencies to obtain information.
                Commenters noted that a programmatic consultation may be appropriate
                where an agency promulgates regulations that may affect endangered
                species. Other commenters believe that the rule is contrary to section
                7(a)(1) of ESA, which imposes a specific obligation upon all federal
                agencies to carry out programs to conserve endangered and threatened
                species. Commenters stated that the proposed changes eliminate or
                otherwise weaken requirements pertaining to the assessment of impacts
                and, in doing so, CEQ fails to satisfy responsibilities under section
                7(a)(1).
                 CEQ disagrees that the aforementioned regulatory changes ``may
                affect'' listed species or critical habitat. Initially, it is important
                to note that commenters are conflating ESA and NEPA. As courts have
                stated numerous times, these are two different statutes with different
                standards and definitions and, in fact, different underlying policies.
                As discussed in section II.B.1, the Supreme Court has stated that NEPA
                is a procedural statute. In contrast, the ESA is principally focused on
                imposing substantive duties on Federal agencies and the public.
                Regardless of how definitions or other procedures under NEPA are
                changed under this regulation or any other regulatory process, it will
                not change the requirements for Federal agencies under the ESA or its
                implementing regulations.
                 This rulemaking is procedural in nature, and therefore does not
                make any final determination regarding the level of NEPA analysis
                required for particular actions. CEQ's approach is consistent with the
                approach taken by other Federal agencies that similarly make
                determinations of no effect on listed species and critical habitat when
                establishing or updating agency NEPA procedures. CEQ also notes that
                neither the 1978 regulations nor the 1986 amendments indicate that CEQ
                consulted under ESA section 7(a)(2). Setting aside the procedural
                nature of this rule, CEQ reviewed it to determine if it ``may affect''
                listed species or their designated critical habitat. CEQ has closely
                reviewed the impacts of all the changes made to the 1978 regulations,
                as summarized in the RIA Appendix and described in greater detail in
                the
                [[Page 43355]]
                respective responses to comments. None of the changes to the 1978
                regulations are anticipated to have environmental impacts, including
                potential effects to listed species and critical habitat. For example,
                under Sec. 1501.3 of the final rule, agencies should continue to
                consider listed species and designated habitat when making a
                determination of significance with respect to the level of NEPA review.
                 Contrary to several comments, the final rule does not ignore
                cumulative effects on listed species. Rather, the final rule includes a
                definition of effects that comports with Supreme Court case law to
                encompass all effects that are reasonably foreseeable and have a
                reasonably close causal relationship to the proposed action or
                alternatives. In general, the changes improve the timeliness and
                efficiency of the NEPA process while retaining requirements to analyze
                all activities and environmental impacts covered within the scope of
                the statute. To the extent the rule modifies the 1978 regulations, the
                changes do not diminish the quality and depth of environmental review
                relative to the baseline, which is defined as how NEPA is conducted
                under applicable Supreme Court case law.
                 Neither the ESA regulations nor the ESA Section 7 Consultation
                Handbook (1998) require the action agency to request concurrence from
                the Fish and Wildlife Service and National Marine Fisheries Service for
                determinations that an action will have no effect on listed species or
                their critical habitat. The final rule does not change the obligations
                of Federal agencies under the ESA; as noted above, importantly, all of
                the requirements under section 7 and associated implementing
                regulations and policies continue to apply regardless of whether NEPA
                analysis is triggered or the form of the NEPA documentation. For the
                aforementioned reasons, CEQ has determined that the final rule will
                have no effect on ESA listed species and designated critical habitat.
                 To the extent commenters imply that, under the authority of ESA
                section 7(a)(1), CEQ can regulate Federal action agencies with regard
                to the ESA, this is not accurate. For example, CEQ does not have the
                authority, under the guise of NEPA, to dictate to Federal action
                agencies that they may only choose an alternative that has the most
                conservation value for listed species or designated critical habitat.
                 All Federal agencies continue to be subject to the ESA and its
                requirements. Further, as described in detail in the RIA Appendix and
                in Final Rule Response to Comments on specific changes, none of the
                changes to the 1978 regulations are anticipated to have environmental
                impacts, including potential effects to listed species and critical
                habitat. In general, the changes improve the timeliness and efficiency
                of the NEPA process while retaining requirements to analyze all
                environmental impacts covered within the ambit of the statute. CEQ
                notes that the rulemaking is procedural in nature, and therefore does
                not make any final determination regarding the level of NEPA analysis
                required for particular actions.
                G. Executive Order 13132, Federalism
                 E.O. 13132 requires agencies to develop an accountable process to
                ensure meaningful and timely input by State and local officials in the
                development of regulatory policies that have federalism
                implications.\139\ Policies that have federalism implications include
                regulations that have substantial direct effects on the States, on the
                relationship between the national government and the States, or on the
                distribution of power and responsibilities among the various levels of
                government. This rule does not have federalism implications because it
                applies to Federal agencies, not States. However, CEQ notes that States
                may elect to assume NEPA responsibilities under Federal statutes. CEQ
                received comments in response to the NPRM from a number of States,
                including those that have assumed NEPA responsibilities, and considered
                these comments in development of the final rule.
                ---------------------------------------------------------------------------
                 \139\ Supra note 75.
                ---------------------------------------------------------------------------
                H. Executive Order 13175, Consultation and Coordination With Indian
                Tribal Governments
                 E.O. 13175 requires agencies to have a process to ensure meaningful
                and timely input by Tribal officials in the development of policies
                that have Tribal implications.\140\ Such policies include regulations
                that have substantial direct effects on one or more 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. While the rule is not a regulatory policy
                that has Tribal implications, the rule does, in part, respond to Tribal
                government comments concerning Tribal sovereign rights, interests, and
                the expertise of Tribes in the NEPA process and the CEQ regulations
                implementing NEPA.
                ---------------------------------------------------------------------------
                 \140\ Supra note 69.
                ---------------------------------------------------------------------------
                 Several commenters stated that it is inaccurate for CEQ to conclude
                that the rule ``is not a regulatory policy that has Tribal
                implications,'' under E.O. 13175. Commenters noted that NEPA uniquely
                and substantially impacts Tribes, and Tribal lands are ordinarily held
                in Federal trust. Commenters also stated that through NEPA and its
                implementing regulations, Tribes often engage with the Federal agency
                on projects located within the Tribes' ancestral lands, including on
                projects that may affect cultural resources, sacred sites, and other
                resources. Commenters noted Tribal nations routinely participate in the
                NEPA process as participating, cooperating, or sometimes lead agencies.
                Further, the proposed regulations specifically contain provisions that
                explicitly reference Tribal nations.
                 Commenters stated that consultation is required by the Presidential
                Memorandum for the Heads of Executive Departments and Agencies on
                Tribal Consultation dated November 5, 2009,\141\ which supplements E.O.
                13175 and requested formal consultation and additional meetings in
                their region with CEQ on the proposed rule. Commenters stated that the
                Tribal meetings CEQ held were insufficient in number or capacity for
                meaningful consultation. Other commenters stated that consultation
                should start at the outset of the process, and some reference comments
                provided on the need for consultation during the ANPRM process. Some
                commenters stated that CEQ should withdraw the proposed rule, and
                others asked that CEQ postpone or extend the comment period for the
                rulemaking in order to engage in consultation with Tribal governments
                in order to make the regulatory framework more responsive to Tribal
                needs.
                ---------------------------------------------------------------------------
                 \141\ 74 FR 57881 (Nov. 9, 2009).
                ---------------------------------------------------------------------------
                 The final rule does not meet the criteria in E.O. 13175 that
                require government-to-government consultation. This rule does not
                impose substantial direct compliance costs on Tribal governments
                (section 5(b)) and does not preempt Tribal law (section 5(c)). However,
                CEQ solicited and received numerous Tribal governmental and
                organizational public comments during the rulemaking process. The
                comments received through the ANPRM informed the development of CEQ's
                proposed rule. For the proposed rule, CEQ provided for a 60-day public
                comment period, which is consistent with the length of the comment
                period provided by CEQ for the original 1978 proposed regulations, as
                well as the APA and E.O. 12866. CEQ notified all
                [[Page 43356]]
                Tribal leaders of federally recognized Tribes by email or mail of the
                proposed rule and invited comments. CEQ conducted additional Tribal
                outreach to solicit comments from Tribal leaders and members through
                three listening sessions held in Denver, Colorado, Anchorage, Alaska,
                and Washington, DC. CEQ made information to aid the Tribes and the
                public's review available on its websites at www.whitehouse.gov/ceq and
                www.nepa.gov, including a redline version of the proposed changes, a
                presentation on the proposed rule, and other background information.
                 One commenter argued that CEQ made a ``substantive'' decision to
                forego Tribal consultation that it must support with substantial
                evidence in the administrative record under the APA. While compliance
                with E.O. 13175 is not subject to judicial review, the final rule
                explains how CEQ received meaningful and timely input from Tribal
                leaders and members.
                 In its ANPRM, CEQ included a specific question regarding the
                representation of Tribal governments in the NEPA process. See ANPRM
                Question 18 (``Are there ways in which the role of [T]ribal governments
                in the NEPA process should be clarified in CEQ's NEPA regulations, and
                if so, how?''). More generally, CEQ's ANPRM sought the views of Tribal
                governments and others on regulatory revisions that CEQ could propose
                to improve Tribal participation in Federal NEPA processes. See ANPRM
                Question 2 (``Should CEQ's NEPA regulations be revised to make the NEPA
                process more efficient by better facilitating agency use of
                environmental studies, analysis, and decisions conducted in earlier
                Federal, State, Tribal or local environmental reviews or authorization
                decisions, and if so, how?''). As discussed in section II.A, CEQ is
                amending its regulations in the final rule to further support
                coordination with Tribal governments and agencies and analysis of a
                proposed action's potential effects on Tribal lands, resources, or
                areas of historic significance as an important part of Federal agency
                decision making.
                I. Executive Order 12898, Federal Actions To Address Environmental
                Justice in Minority Populations and Low-Income Populations
                 E.O. 12898 requires agencies to make achieving environmental
                justice part of their missions by identifying and addressing, as
                appropriate, disproportionately high and adverse human health or
                environmental effects of its programs, policies, and activities on
                minority populations and low-income populations.\142\ CEQ has analyzed
                this final rule and determined that it would not cause
                disproportionately high and adverse human health or environmental
                effects on minority populations and low-income populations. This rule
                would set forth implementing regulations for NEPA; it is in the agency
                implementation of NEPA when conducting reviews of proposed agency
                actions where agencies can consider, as needed, environmental justice
                issues.
                ---------------------------------------------------------------------------
                 \142\ 59 FR 7629 (Feb. 16, 1994).
                ---------------------------------------------------------------------------
                 Several commenters disagreed with CEQ's determination that the
                proposed rule would not cause disproportionately high and adverse human
                health or environmental effects on minority populations and low-income
                populations. Commenters stated NEPA's mandate to consider environmental
                effects, E.O. 12898, agency guidance, and case law establish that
                agencies cannot ignore the impacts of their actions on low-income and
                minority communities, and that CEQ is relinquishing its responsibility
                to oversee compliance with E.O. 12898 and NEPA. Further, commenters
                contended that CEQ's failure to analyze how the proposed rule and its
                implementation would affect E.O. 12898's mandates would render the
                regulations arbitrary and capricious, and exceed the agency's statutory
                authority.
                 Commenters stated that CEQ provided no explanation or analysis of
                how the development and implementation of this rule would affect
                implementation of E.O. 12898 and, consequently, environmental justice
                communities. Commenters noted the fundamental proposed changes to
                nearly every step of the NEPA review process will disproportionately
                impact environmental justice communities and will reduce or limit
                opportunities for such communities to understand the effects of
                proposed projects and to participate in the NEPA review process.
                 NEPA is a procedural statute that does not presuppose any
                particular substantive outcomes. In addition, CEQ has reviewed the
                changes in this final rule and has determined that they would not
                result in environmental impacts. See RIA Appendix. CEQ disagrees that
                the final rule will have disproportionately high and adverse human
                health or environmental effects on minority populations and low-income
                population. Rather, the final rule modernizes and clarifies the
                procedures that NEPA contemplates. Among other things, this will give
                agencies greater flexibility to design and customize public involvement
                to best address the specific circumstances of their proposed actions.
                The final rule expands the already wide range of tools agencies may use
                when providing notice to potentially affected communities and inviting
                public involvement. CEQ has made further changes to Sec. 1506.6 in the
                final rule to clarify that agencies should consider the public's access
                to electronic media when selecting appropriate methods for providing
                public notice and involvement. The final rule also better informs the
                public by extending the scoping period so that it may occur prior to
                publication of the NOI, where appropriate, and increasing the
                specificity of the NOI.
                 Commenters also raised concerns that CEQ did not follow the E.O.
                12898 directive to ensure that environmental justice communities can
                meaningfully participate in public processes and Federal agency
                decision making, including making public information and hearings
                ``readily accessible.'' Commenters stated that CEQ failed to follow
                this directive in designing its rulemaking process, and in fact,
                excluded environmental justice communities from the process. Further,
                commenters stated that, over 20 years ago, CEQ acknowledged that
                traditional notice and comment procedures may be insufficient to engage
                environmental justice communities. These barriers may range from agency
                failure to provide translation of documents to the scheduling of
                meetings at times and in places that are not convenient to working
                families. Commenters stated that CEQ failed to mention environmental
                justice communities in its opening statement during the Washington, DC
                hearing.
                 Commenters also stated that CEQ failed to take note of the
                thousands of comments submitted in response to the ANPRM raising
                concerns about the health and environment of environmental justice
                communities that could come from limiting opportunities to gain access
                to information about projects and to comment. Commenters stated that if
                CEQ's rulemaking process was more inclusive and expansive it would
                enable some valuable clarifications in the regulations of how
                environmental justice impacts should be taken more definitively into
                account in NEPA reviews. Commenters also stated that the proposed rule
                changes show no particular interest in better clarifying this important
                aspect of environmental review, and show no evidence of interest in
                bettering environmental justice impact assessment.
                 In response to the ANPRM, CEQ received over 12,500 comments,
                including from those representing
                [[Page 43357]]
                environmental justice organizations. The diverse range of public
                comments informed CEQ's development of the proposed rule to improve
                interagency coordination in the environmental review process, promote
                earlier public involvement, increase transparency, and enhance the
                participation of States, Tribes, and localities.
                 In issuing the NPRM, CEQ took a number of further actions to hear
                from the public and to encourage all interested stakeholders to submit
                comments. These actions included notifying and inviting comment from
                all federally recognized Tribes and over 400 interested groups,
                including States, localities, environmental organizations, trade
                associations, NEPA practitioners, and other interested members of the
                public, representing a broad range of diverse views. Additionally, CEQ
                made information to aid the public's review available on its websites
                at www.whitehouse.gov/ceq and www.nepa.gov, including a redline version
                of the proposed changes to the regulations, along with a presentation
                on the proposed rule and other background information.
                 CEQ engaged in extensive public outreach with the benefit of modern
                technologies and rulemaking procedures. CEQ held two public hearings
                each with morning, afternoon, and evening sessions, in Denver, Colorado
                on February 11, 2020, and in Washington, DC on February 25, 2020. Both
                hearings had diverse representation from stakeholders, including many
                speaking on behalf of environmental justice communities or about their
                concerns. CEQ also attended the National Environmental Justice Advisory
                Committee (NEJAC) meeting in Jacksonville, Florida to brief NEJAC
                members and the public on the proposed rule and to answer questions.
                CEQ also conducted additional public outreach to solicit comments and
                receive input, including Tribal engagement in Denver, Colorado,
                Anchorage, Alaska and Washington, DC.
                J. Executive Order 13211, Actions Concerning Regulations That
                Significantly Affect Energy Supply, Distribution, or Use
                 Agencies must prepare a Statement of Energy Effects for significant
                energy actions under E.O. 13211.\143\ This 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.
                ---------------------------------------------------------------------------
                 \143\ 66 FR 28355 (May 22, 2001).
                ---------------------------------------------------------------------------
                K. Executive Order 12988, Civil Justice Reform
                 Under section 3(a) E.O. 12988,\144\ 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). CEQ has
                conducted this review and determined that this final rule complies with
                the requirements of E.O. 12988.
                ---------------------------------------------------------------------------
                 \144\ 61 FR 4729 (Feb. 7, 1996).
                ---------------------------------------------------------------------------
                L. Unfunded Mandates Reform Act
                 Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
                1531) requires Federal agencies to assess the effects of their
                regulatory actions on State, Tribal, and local governments, and the
                private sector to the extent that such regulations incorporate
                requirements specifically set forth in law. Before promulgating a rule
                that may result in the expenditure by a State, Tribal, or local
                government, in the aggregate, or by the private sector of $100 million,
                adjusted annually for inflation, in any one year, an agency must
                prepare a written statement that assesses the effects on State, Tribal,
                and local governments and the private sector. 2 U.S.C. 1532. This final
                rule applies to Federal agencies and would not result in expenditures
                of $100 million or more for State, Tribal, and local governments, in
                the aggregate, or the private sector in any 1 year. This action also
                does not impose any enforceable duty, contain any unfunded mandate, or
                otherwise have any effect on small governments subject to the
                requirements of 2 U.S.C. 1531-38.
                M. Paperwork Reduction Act
                 This final rule does not impose any new information collection
                burden that would require additional review or approval by OMB under
                the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
                List of Subjects
                40 CFR Parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508
                 Administrative practice and procedure, Environmental impact
                statements, Environmental protection, Natural resources.
                40 CFR Part 1515
                 Freedom of information.
                40 CFR Part 1516
                 Privacy.
                40 CFR Part 1517
                 Sunshine Act.
                40 CFR Part 1518
                 Accounting, Administrative practice and procedure, Environmental
                impact statements.
                Mary B. Neumayr,
                Chairman.
                 For the reasons stated in the preamble, and under the authority of
                42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 7609; E.O. 11514,
                35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as amended by E.O. 11991,
                42 FR 26967, 3 CFR, 1977 Comp., p. 123; and E.O. 13807, 82 FR 40463, 3
                CFR, 2017, Comp., p. 369, the Council on Environmental Quality amends
                chapter V in title 40 of the Code of Federal Regulations as follows:
                PARTS 1500 THROUGH 1508 [DESIGNATED AS SUBCHAPTER A]
                0
                1. Designate parts 1500 through 1508 as subchapter A and add a heading
                for newly designated subchapter A to read as follows:
                Subchapter A--National Environmental Policy Act Implementing
                Regulations
                0
                2. Revise part 1500 to read as follows:
                PART 1500--PURPOSE AND POLICY
                Sec.
                1500.1 Purpose and policy.
                1500.2 [Reserved].
                1500.3 NEPA compliance.
                1500.4 Reducing paperwork.
                1500.5 Reducing delay.
                1500.6 Agency authority.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
                E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1500.1 Purpose and policy.
                 (a) The National Environmental Policy Act (NEPA) is a procedural
                statute intended to ensure Federal agencies consider the environmental
                impacts of their actions in the decision-making process. Section 101 of
                NEPA establishes the national environmental policy of the Federal
                Government to use all practicable means and measures to foster and
                promote the general welfare, create and maintain conditions under which
                man and nature can exist in productive harmony, and fulfill the social,
                economic, and other requirements of present and future generations of
                Americans. Section 102(2) of NEPA establishes the procedural
                requirements to carry out the policy stated in section 101 of NEPA. In
                [[Page 43358]]
                particular, it requires Federal agencies to provide a detailed
                statement on proposals for major Federal actions significantly
                affecting the quality of the human environment. The purpose and
                function of NEPA is satisfied if Federal agencies have considered
                relevant environmental information, and the public has been informed
                regarding the decision-making process. NEPA does not mandate particular
                results or substantive outcomes. NEPA's purpose is not to generate
                paperwork or litigation, but to provide for informed decision making
                and foster excellent action.
                 (b) The regulations in this subchapter implement section 102(2) of
                NEPA. They provide direction to Federal agencies to determine what
                actions are subject to NEPA's procedural requirements and the level of
                NEPA review where applicable. The regulations in this subchapter are
                intended to ensure that relevant environmental information is
                identified and considered early in the process in order to ensure
                informed decision making by Federal agencies. The regulations in this
                subchapter are also intended to ensure that Federal agencies conduct
                environmental reviews in a coordinated, consistent, predictable and
                timely manner, and to reduce unnecessary burdens and delays. Finally,
                the regulations in this subchapter promote concurrent environmental
                reviews to ensure timely and efficient decision making.
                Sec. 1500.2 [Reserved]
                Sec. 1500.3 NEPA compliance.
                 (a) Mandate. This subchapter is applicable to and binding on all
                Federal agencies for implementing the procedural provisions of the
                National Environmental Policy Act of 1969, as amended (Pub. L. 91-190,
                42 U.S.C. 4321 et seq.) (NEPA or the Act), except where compliance
                would be inconsistent with other statutory requirements. The
                regulations in this subchapter are issued pursuant to NEPA; the
                Environmental Quality Improvement Act of 1970, as amended (Pub. L. 91-
                224, 42 U.S.C. 4371 et seq.); section 309 of the Clean Air Act, as
                amended (42 U.S.C. 7609); Executive Order 11514, Protection and
                Enhancement of Environmental Quality (March 5, 1970), as amended by
                Executive Order 11991, Relating to the Protection and Enhancement of
                Environmental Quality (May 24, 1977); and Executive Order 13807,
                Establishing Discipline and Accountability in the Environmental Review
                and Permitting Process for Infrastructure Projects (August 15, 2017).
                The regulations in this subchapter apply to the whole of section 102(2)
                of NEPA. The provisions of the Act and the regulations in this
                subchapter must be read together as a whole to comply with the law.
                 (b) Exhaustion. (1) To ensure informed decision making and reduce
                delays, agencies shall include a request for comments on potential
                alternatives and impacts, and identification of any relevant
                information, studies, or analyses of any kind concerning impacts
                affecting the quality of the human environment in the notice of intent
                to prepare an environmental impact statement (Sec. 1501.9(d)(7) of
                this chapter).
                 (2) The draft and final environmental impact statements shall
                include a summary of all alternatives, information, and analyses
                submitted by State, Tribal, and local governments and other public
                commenters for consideration by the lead and cooperating agencies in
                developing the draft and final environmental impact statements (Sec.
                1502.17 of this chapter).
                 (3) For consideration by the lead and cooperating agencies, State,
                Tribal, and local governments and other public commenters must submit
                comments within the comment periods provided, and comments shall be as
                specific as possible (Sec. Sec. 1503.1 and 1503.3 of this chapter).
                Comments or objections of any kind not submitted, including those based
                on submitted alternatives, information, and analyses, shall be
                forfeited as unexhausted.
                 (4) Informed by the submitted alternatives, information, and
                analyses, including the summary in the final environmental impact
                statement (Sec. 1502.17 of this chapter) and the agency's response to
                comments in the final environmental impact statement (Sec. 1503.4 of
                this chapter), together with any other material in the record that he
                or she determines relevant, the decision maker shall certify in the
                record of decision that the agency considered all of the alternatives,
                information, and analyses, and objections submitted by States, Tribal,
                and local governments and other public commenters for consideration by
                the lead and cooperating agencies in developing the environmental
                impact statement (Sec. 1505.2(b) of this chapter).
                 (c) Review of NEPA compliance. It is the Council's intention that
                judicial review of agency compliance with the regulations in this
                subchapter not occur before an agency has issued the record of decision
                or taken other final agency action. It is the Council's intention that
                any allegation of noncompliance with NEPA and the regulations in this
                subchapter should be resolved as expeditiously as possible. Consistent
                with their organic statutes, and as part of implementing the exhaustion
                provisions in paragraph (b) of this section, agencies may structure
                their procedures to include an appropriate bond or other security
                requirement.
                 (d) Remedies. Harm from the failure to comply with NEPA can be
                remedied by compliance with NEPA's procedural requirements as
                interpreted in the regulations in this subchapter. It is the Council's
                intention that the regulations in this subchapter create no presumption
                that violation of NEPA is a basis for injunctive relief or for a
                finding of irreparable harm. The regulations in this subchapter do not
                create a cause of action or right of action for violation of NEPA,
                which contains no such cause of action or right of action. It is the
                Council's intention that any actions to review, enjoin, stay, vacate,
                or otherwise alter an agency decision on the basis of an alleged NEPA
                violation be raised as soon as practicable after final agency action to
                avoid or minimize any costs to agencies, applicants, or any affected
                third parties. It is also the Council's intention that minor, non-
                substantive errors that have no effect on agency decision making shall
                be considered harmless and shall not invalidate an agency action.
                 (e) Severability. The sections of this subchapter are separate and
                severable from one another. If any section or portion therein is stayed
                or determined to be invalid, or the applicability of any section to any
                person or entity is held invalid, it is the Council's intention that
                the validity of the remainder of those parts shall not be affected,
                with the remaining sections to continue in effect.
                Sec. 1500.4 Reducing paperwork.
                 Agencies shall reduce excessive paperwork by:
                 (a) Using categorical exclusions to define categories of actions
                that normally do not have a significant effect on the human environment
                and therefore do not require preparation of an environmental impact
                statement (Sec. 1501.4 of this chapter).
                 (b) Using a finding of no significant impact when an action not
                otherwise excluded will not have a significant effect on the human
                environment and therefore does not require preparation of an
                environmental impact statement (Sec. 1501.6 of this chapter).
                 (c) Reducing the length of environmental documents by means such as
                meeting appropriate page limits (Sec. Sec. 1501.5(f) and 1502.7 of
                this chapter).
                [[Page 43359]]
                 (d) Preparing analytic and concise environmental impact statements
                (Sec. 1502.2 of this chapter).
                 (e) Discussing only briefly issues other than significant ones
                (Sec. 1502.2(b) of this chapter).
                 (f) Writing environmental impact statements in plain language
                (Sec. 1502.8 of this chapter).
                 (g) Following a clear format for environmental impact statements
                (Sec. 1502.10 of this chapter).
                 (h) Emphasizing the portions of the environmental impact statement
                that are useful to decision makers and the public (e.g., Sec. Sec.
                1502.14 and 1502.15 of this chapter) and reducing emphasis on
                background material (Sec. 1502.1 of this chapter).
                 (i) Using the scoping process, not only to identify significant
                environmental issues deserving of study, but also to deemphasize
                insignificant issues, narrowing the scope of the environmental impact
                statement process accordingly (Sec. 1501.9 of this chapter).
                 (j) Summarizing the environmental impact statement (Sec. 1502.12
                of this chapter).
                 (k) Using programmatic, policy, or plan environmental impact
                statements and tiering from statements of broad scope to those of
                narrower scope, to eliminate repetitive discussions of the same issues
                (Sec. Sec. 1501.11 and 1502.4 of this chapter).
                 (l) Incorporating by reference (Sec. 1501.12 of this chapter).
                 (m) Integrating NEPA requirements with other environmental review
                and consultation requirements (Sec. 1502.24 of this chapter).
                 (n) Requiring comments to be as specific as possible (Sec. 1503.3
                of this chapter).
                 (o) Attaching and publishing only changes to the draft
                environmental impact statement, rather than rewriting and publishing
                the entire statement when changes are minor (Sec. 1503.4(c) of this
                chapter).
                 (p) Eliminating duplication with State, Tribal, and local
                procedures, by providing for joint preparation of environmental
                documents where practicable (Sec. 1506.2 of this chapter), and with
                other Federal procedures, by providing that an agency may adopt
                appropriate environmental documents prepared by another agency (Sec.
                1506.3 of this chapter).
                 (q) Combining environmental documents with other documents (Sec.
                1506.4 of this chapter).
                Sec. 1500.5 Reducing delay.
                 Agencies shall reduce delay by:
                 (a) Using categorical exclusions to define categories of actions
                that normally do not have a significant effect on the human environment
                (Sec. 1501.4 of this chapter) and therefore do not require preparation
                of an environmental impact statement.
                 (b) Using a finding of no significant impact when an action not
                otherwise excluded will not have a significant effect on the human
                environment (Sec. 1501.6 of this chapter) and therefore does not
                require preparation of an environmental impact statement.
                 (c) Integrating the NEPA process into early planning (Sec. 1501.2
                of this chapter).
                 (d) Engaging in interagency cooperation before or as the
                environmental assessment or environmental impact statement is prepared,
                rather than awaiting submission of comments on a completed document
                (Sec. Sec. 1501.7 and 1501.8 of this chapter).
                 (e) Ensuring the swift and fair resolution of lead agency disputes
                (Sec. 1501.7 of this chapter).
                 (f) Using the scoping process for an early identification of what
                are and what are not the real issues (Sec. 1501.9 of this chapter).
                 (g) Meeting appropriate time limits for the environmental
                assessment and environmental impact statement processes (Sec. 1501.10
                of this chapter).
                 (h) Preparing environmental impact statements early in the process
                (Sec. 1502.5 of this chapter).
                 (i) Integrating NEPA requirements with other environmental review
                and consultation requirements (Sec. 1502.24 of this chapter).
                 (j) Eliminating duplication with State, Tribal, and local
                procedures by providing for joint preparation of environmental
                documents where practicable (Sec. 1506.2 of this chapter) and with
                other Federal procedures by providing that agencies may jointly prepare
                or adopt appropriate environmental documents prepared by another agency
                (Sec. 1506.3 of this chapter).
                 (k) Combining environmental documents with other documents (Sec.
                1506.4 of this chapter).
                 (l) Using accelerated procedures for proposals for legislation
                (Sec. 1506.8 of this chapter).
                Sec. 1500.6 Agency authority.
                 Each agency shall interpret the provisions of the Act as a
                supplement to its existing authority and as a mandate to view policies
                and missions in the light of the Act's national environmental
                objectives, to the extent consistent with its existing authority.
                Agencies shall review their policies, procedures, and regulations
                accordingly and revise them as necessary to ensure full compliance with
                the purposes and provisions of the Act as interpreted by the
                regulations in this subchapter. The phrase ``to the fullest extent
                possible'' in section 102 of NEPA means that each agency of the Federal
                Government shall comply with that section, consistent with Sec. 1501.1
                of this chapter. Nothing contained in the regulations in this
                subchapter is intended or should be construed to limit an agency's
                other authorities or legal responsibilities.
                0
                3. Revise part 1501 to read as follows:
                PART 1501--NEPA AND AGENCY PLANNING
                Sec.
                1501.1 NEPA thresholds.
                1501.2 Apply NEPA early in the process.
                1501.3 Determine the appropriate level of NEPA review.
                1501.4 Categorical exclusions.
                1501.5 Environmental assessments.
                1501.6 Findings of no significant impact.
                1501.7 Lead agencies.
                1501.8 Cooperating agencies.
                1501.9 Scoping.
                1501.10 Time limits.
                1501.11 Tiering.
                1501.12 Incorporation by reference.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 35 FR 4247, 3 CFR, 1966-1970, Comp.,
                p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p.
                123; and E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1501.1 NEPA thresholds.
                 (a) In assessing whether NEPA applies or is otherwise fulfilled,
                Federal agencies should determine:
                 (1) Whether the proposed activity or decision is expressly exempt
                from NEPA under another statute;
                 (2) Whether compliance with NEPA would clearly and fundamentally
                conflict with the requirements of another statute;
                 (3) Whether compliance with NEPA would be inconsistent with
                Congressional intent expressed in another statute;
                 (4) Whether the proposed activity or decision is a major Federal
                action;
                 (5) Whether the proposed activity or decision, in whole or in part,
                is a non-discretionary action for which the agency lacks authority to
                consider environmental effects as part of its decision-making process;
                and
                 (6) Whether the proposed action is an action for which another
                statute's requirements serve the function of agency compliance with the
                Act.
                 (b) Federal agencies may make determinations under this section in
                their agency NEPA procedures (Sec. 1507.3(d) of this chapter) or on an
                individual basis, as appropriate.
                [[Page 43360]]
                 (1) Federal agencies may seek the Council's assistance in making an
                individual determination under this section.
                 (2) An agency shall consult with other Federal agencies concerning
                their concurrence in statutory determinations made under this section
                where more than one Federal agency administers the statute.
                Sec. 1501.2 Apply NEPA early in the process.
                 (a) Agencies should integrate the NEPA process with other planning
                and authorization processes at the earliest reasonable time to ensure
                that agencies consider environmental impacts in their planning and
                decisions, to avoid delays later in the process, and to head off
                potential conflicts.
                 (b) Each agency shall:
                 (1) Comply with the mandate of section 102(2)(A) of NEPA to utilize
                a systematic, interdisciplinary approach which will ensure the
                integrated use of the natural and social sciences and the environmental
                design arts in planning and in decision making which may have an impact
                on man's environment, as specified by Sec. 1507.2(a) of this chapter.
                 (2) Identify environmental effects and values in adequate detail so
                the decision maker can appropriately consider such effects and values
                alongside economic and technical analyses. Whenever practicable,
                agencies shall review and publish environmental documents and
                appropriate analyses at the same time as other planning documents.
                 (3) Study, develop, and describe appropriate alternatives to
                recommended courses of action in any proposal that involves unresolved
                conflicts concerning alternative uses of available resources as
                provided by section 102(2)(E) of NEPA.
                 (4) Provide for actions subject to NEPA that are planned by private
                applicants or other non-Federal entities before Federal involvement so
                that:
                 (i) Policies or designated staff are available to advise potential
                applicants of studies or other information foreseeably required for
                later Federal action.
                 (ii) The Federal agency consults early with appropriate State,
                Tribal, and local governments and with interested private persons and
                organizations when their involvement is reasonably foreseeable.
                 (iii) The Federal agency commences its NEPA process at the earliest
                reasonable time (Sec. Sec. 1501.5(d) and 1502.5(b) of this chapter).
                Sec. 1501.3 Determine the appropriate level of NEPA review.
                 (a) In assessing the appropriate level of NEPA review, Federal
                agencies should determine whether the proposed action:
                 (1) Normally does not have significant effects and is categorically
                excluded (Sec. 1501.4);
                 (2) Is not likely to have significant effects or the significance
                of the effects is unknown and is therefore appropriate for an
                environmental assessment (Sec. 1501.5); or
                 (3) Is likely to have significant effects and is therefore
                appropriate for an environmental impact statement (part 1502 of this
                chapter).
                 (b) In considering whether the effects of the proposed action are
                significant, agencies shall analyze the potentially affected
                environment and degree of the effects of the action. Agencies should
                consider connected actions consistent with Sec. 1501.9(e)(1).
                 (1) In considering the potentially affected environment, agencies
                should consider, as appropriate to the specific action, the affected
                area (national, regional, or local) and its resources, such as listed
                species and designated critical habitat under the Endangered Species
                Act. Significance varies with the setting of the proposed action. For
                instance, in the case of a site-specific action, significance would
                usually depend only upon the effects in the local area.
                 (2) In considering the degree of the effects, agencies should
                consider the following, as appropriate to the specific action:
                 (i) Both short- and long-term effects.
                 (ii) Both beneficial and adverse effects.
                 (iii) Effects on public health and safety.
                 (iv) Effects that would violate Federal, State, Tribal, or local
                law protecting the environment.
                Sec. 1501.4 Categorical exclusions.
                 (a) For efficiency, agencies shall identify in their agency NEPA
                procedures (Sec. 1507.3(e)(2)(ii) of this chapter) categories of
                actions that normally do not have a significant effect on the human
                environment, and therefore do not require preparation of an
                environmental assessment or environmental impact statement.
                 (b) If an agency determines that a categorical exclusion identified
                in its agency NEPA procedures covers a proposed action, the agency
                shall evaluate the action for extraordinary circumstances in which a
                normally excluded action may have a significant effect.
                 (1) If an extraordinary circumstance is present, the agency
                nevertheless may categorically exclude the proposed action if the
                agency determines that there are circumstances that lessen the impacts
                or other conditions sufficient to avoid significant effects.
                 (2) If the agency cannot categorically exclude the proposed action,
                the agency shall prepare an environmental assessment or environmental
                impact statement, as appropriate.
                Sec. 1501.5 Environmental assessments.
                 (a) An agency shall prepare an environmental assessment for a
                proposed action that is not likely to have significant effects or when
                the significance of the effects is unknown unless the agency finds that
                a categorical exclusion (Sec. 1501.4) is applicable or has decided to
                prepare an environmental impact statement.
                 (b) An agency may prepare an environmental assessment on any action
                in order to assist agency planning and decision making.
                 (c) An environmental assessment shall:
                 (1) Briefly provide sufficient evidence and analysis for
                determining whether to prepare an environmental impact statement or a
                finding of no significant impact; and
                 (2) Briefly discuss the purpose and need for the proposed action,
                alternatives as required by section 102(2)(E) of NEPA, and the
                environmental impacts of the proposed action and alternatives, and
                include a listing of agencies and persons consulted.
                 (d) For applications to the agency requiring an environmental
                assessment, the agency shall commence the environmental assessment as
                soon as practicable after receiving the application.
                 (e) Agencies shall involve the public, State, Tribal, and local
                governments, relevant agencies, and any applicants, to the extent
                practicable in preparing environmental assessments.
                 (f) The text of an environmental assessment shall be no more than
                75 pages, not including appendices, unless a senior agency official
                approves in writing an assessment to exceed 75 pages and establishes a
                new page limit.
                 (g) Agencies may apply the following provisions to environmental
                assessments:
                 (1) Section 1502.21 of this chapter--Incomplete or unavailable
                information;
                 (2) Section 1502.23 of this chapter--Methodology and scientific
                accuracy; and
                 (3) Section 1502.24 of this chapter--Environmental review and
                consultation requirements.
                Sec. 1501.6 Findings of no significant impact.
                 (a) An agency shall prepare a finding of no significant impact if
                the agency
                [[Page 43361]]
                determines, based on the environmental assessment, not to prepare an
                environmental impact statement because the proposed action will not
                have significant effects.
                 (1) The agency shall make the finding of no significant impact
                available to the affected public as specified in Sec. 1506.6(b) of
                this chapter.
                 (2) In the following circumstances, the agency shall make the
                finding of no significant impact available for public review for 30
                days before the agency makes its final determination whether to prepare
                an environmental impact statement and before the action may begin:
                 (i) The proposed action is or is closely similar to one that
                normally requires the preparation of an environmental impact statement
                under the procedures adopted by the agency pursuant to Sec. 1507.3 of
                this chapter; or
                 (ii) The nature of the proposed action is one without precedent.
                 (b) The finding of no significant impact shall include the
                environmental assessment or incorporate it by reference and shall note
                any other environmental documents related to it (Sec. 1501.9(f)(3)).
                If the assessment is included, the finding need not repeat any of the
                discussion in the assessment but may incorporate it by reference.
                 (c) The finding of no significant impact shall state the authority
                for any mitigation that the agency has adopted and any applicable
                monitoring or enforcement provisions. If the agency finds no
                significant impacts based on mitigation, the mitigated finding of no
                significant impact shall state any enforceable mitigation requirements
                or commitments that will be undertaken to avoid significant impacts.
                Sec. 1501.7 Lead agencies.
                 (a) A lead agency shall supervise the preparation of an
                environmental impact statement or a complex environmental assessment if
                more than one Federal agency either:
                 (1) Proposes or is involved in the same action; or
                 (2) Is involved in a group of actions directly related to each
                other because of their functional interdependence or geographical
                proximity.
                 (b) Federal, State, Tribal, or local agencies, including at least
                one Federal agency, may act as joint lead agencies to prepare an
                environmental impact statement or environmental assessment (Sec.
                1506.2 of this chapter).
                 (c) If an action falls within the provisions of paragraph (a) of
                this section, the potential lead agencies shall determine, by letter or
                memorandum, which agency will be the lead agency and which will be
                cooperating agencies. The agencies shall resolve the lead agency
                question so as not to cause delay. If there is disagreement among the
                agencies, the following factors (which are listed in order of
                descending importance) shall determine lead agency designation:
                 (1) Magnitude of agency's involvement.
                 (2) Project approval or disapproval authority.
                 (3) Expertise concerning the action's environmental effects.
                 (4) Duration of agency's involvement.
                 (5) Sequence of agency's involvement.
                 (d) Any Federal agency, or any State, Tribal, or local agency or
                private person substantially affected by the absence of lead agency
                designation, may make a written request to the senior agency officials
                of the potential lead agencies that a lead agency be designated.
                 (e) If Federal agencies are unable to agree on which agency will be
                the lead agency or if the procedure described in paragraph (c) of this
                section has not resulted in a lead agency designation within 45 days,
                any of the agencies or persons concerned may file a request with the
                Council asking it to determine which Federal agency shall be the lead
                agency. A copy of the request shall be transmitted to each potential
                lead agency. The request shall consist of:
                 (1) A precise description of the nature and extent of the proposed
                action; and
                 (2) A detailed statement of why each potential lead agency should
                or should not be the lead agency under the criteria specified in
                paragraph (c) of this section.
                 (f) Any potential lead agency may file a response within 20 days
                after a request is filed with the Council. As soon as possible, but not
                later than 20 days after receiving the request and all responses to it,
                the Council shall determine which Federal agency will be the lead
                agency and which other Federal agencies will be cooperating agencies.
                 (g) To the extent practicable, if a proposal will require action by
                more than one Federal agency and the lead agency determines that it
                requires preparation of an environmental impact statement, the lead and
                cooperating agencies shall evaluate the proposal in a single
                environmental impact statement and issue a joint record of decision. To
                the extent practicable, if a proposal will require action by more than
                one Federal agency and the lead agency determines that it requires
                preparation of an environmental assessment, the lead and cooperating
                agencies should evaluate the proposal in a single environmental
                assessment and, where appropriate, issue a joint finding of no
                significant impact.
                 (h) With respect to cooperating agencies, the lead agency shall:
                 (1) Request the participation of each cooperating agency in the
                NEPA process at the earliest practicable time.
                 (2) Use the environmental analysis and proposals of cooperating
                agencies with jurisdiction by law or special expertise, to the maximum
                extent practicable.
                 (3) Meet with a cooperating agency at the latter's request.
                 (4) Determine the purpose and need, and alternatives in
                consultation with any cooperating agency.
                 (i) The lead agency shall develop a schedule, setting milestones
                for all environmental reviews and authorizations required for
                implementation of the action, in consultation with any applicant and
                all joint lead, cooperating, and participating agencies, as soon as
                practicable.
                 (j) If the lead agency anticipates that a milestone will be missed,
                it shall notify appropriate officials at the responsible agencies. As
                soon as practicable, the responsible agencies shall elevate the issue
                to the appropriate officials of the responsible agencies for timely
                resolution.
                Sec. 1501.8 Cooperating agencies.
                 (a) The purpose of this section is to emphasize agency cooperation
                early in the NEPA process. Upon request of the lead agency, any Federal
                agency with jurisdiction by law shall be a cooperating agency. In
                addition, upon request of the lead agency, any other Federal agency
                with special expertise with respect to any environmental issue may be a
                cooperating agency. A State, Tribal, or local agency of similar
                qualifications may become a cooperating agency by agreement with the
                lead agency. An agency may request that the lead agency designate it a
                cooperating agency, and a Federal agency may appeal a denial of its
                request to the Council, in accordance with Sec. 1501.7(e).
                 (b) Each cooperating agency shall:
                 (1) Participate in the NEPA process at the earliest practicable
                time.
                 (2) Participate in the scoping process (described in Sec. 1501.9).
                 (3) On request of the lead agency, assume responsibility for
                developing information and preparing environmental analyses, including
                portions of the environmental impact statement or environmental
                assessment concerning which the cooperating agency has special
                expertise.
                 (4) On request of the lead agency, make available staff support to
                enhance
                [[Page 43362]]
                the lead agency's interdisciplinary capability.
                 (5) Normally use its own funds. To the extent available funds
                permit, the lead agency shall fund those major activities or analyses
                it requests from cooperating agencies. Potential lead agencies shall
                include such funding requirements in their budget requests.
                 (6) Consult with the lead agency in developing the schedule (Sec.
                1501.7(i)), meet the schedule, and elevate, as soon as practicable, to
                the senior agency official of the lead agency any issues relating to
                purpose and need, alternatives, or other issues that may affect any
                agencies' ability to meet the schedule.
                 (7) Meet the lead agency's schedule for providing comments and
                limit its comments to those matters for which it has jurisdiction by
                law or special expertise with respect to any environmental issue
                consistent with Sec. 1503.2 of this chapter.
                 (8) To the maximum extent practicable, jointly issue environmental
                documents with the lead agency.
                 (c) In response to a lead agency's request for assistance in
                preparing the environmental documents (described in paragraph (b)(3),
                (4), or (5) of this section), a cooperating agency may reply that other
                program commitments preclude any involvement or the degree of
                involvement requested in the action that is the subject of the
                environmental impact statement or environmental assessment. The
                cooperating agency shall submit a copy of this reply to the Council and
                the senior agency official of the lead agency.
                Sec. 1501.9 Scoping.
                 (a) Generally. Agencies shall use an early and open process to
                determine the scope of issues for analysis in an environmental impact
                statement, including identifying the significant issues and eliminating
                from further study non-significant issues. Scoping may begin as soon as
                practicable after the proposal for action is sufficiently developed for
                agency consideration. Scoping may include appropriate pre-application
                procedures or work conducted prior to publication of the notice of
                intent.
                 (b) Invite cooperating and participating agencies. As part of the
                scoping process, the lead agency shall invite the participation of
                likely affected Federal, State, Tribal, and local agencies and
                governments, the proponent of the action, and other likely affected or
                interested persons (including those who might not be in accord with the
                action), unless there is a limited exception under Sec. 1507.3(f)(1)
                of this chapter.
                 (c) Scoping outreach. As part of the scoping process the lead
                agency may hold a scoping meeting or meetings, publish scoping
                information, or use other means to communicate with those persons or
                agencies who may be interested or affected, which the agency may
                integrate with any other early planning meeting. Such a scoping meeting
                will often be appropriate when the impacts of a particular action are
                confined to specific sites.
                 (d) Notice of intent. As soon as practicable after determining that
                a proposal is sufficiently developed to allow for meaningful public
                comment and requires an environmental impact statement, the lead agency
                shall publish a notice of intent to prepare an environmental impact
                statement in the Federal Register, except as provided in Sec.
                1507.3(f)(3) of this chapter. An agency also may publish notice in
                accordance with Sec. 1506.6 of this chapter. The notice shall include,
                as appropriate:
                 (1) The purpose and need for the proposed action;
                 (2) A preliminary description of the proposed action and
                alternatives the environmental impact statement will consider;
                 (3) A brief summary of expected impacts;
                 (4) Anticipated permits and other authorizations;
                 (5) A schedule for the decision-making process;
                 (6) A description of the public scoping process, including any
                scoping meeting(s);
                 (7) A request for identification of potential alternatives,
                information, and analyses relevant to the proposed action (see Sec.
                1502.17 of this chapter); and
                 (8) Contact information for a person within the agency who can
                answer questions about the proposed action and the environmental impact
                statement.
                 (e) Determination of scope. As part of the scoping process, the
                lead agency shall determine the scope and the significant issues to be
                analyzed in depth in the environmental impact statement. To determine
                the scope of environmental impact statements, agencies shall consider:
                 (1) Actions (other than unconnected single actions) that may be
                connected actions, which means that they are closely related and
                therefore should be discussed in the same impact statement. Actions are
                connected if they:
                 (i) Automatically trigger other actions that may require
                environmental impact statements;
                 (ii) Cannot or will not proceed unless other actions are taken
                previously or simultaneously; or
                 (iii) Are interdependent parts of a larger action and depend on the
                larger action for their justification.
                 (2) Alternatives, which include the no action alternative; other
                reasonable courses of action; and mitigation measures (not in the
                proposed action).
                 (3) Impacts.
                 (f) Additional scoping responsibilities. As part of the scoping
                process, the lead agency shall:
                 (1) Identify and eliminate from detailed study the issues that are
                not significant or have been covered by prior environmental review(s)
                (Sec. 1506.3 of this chapter), narrowing the discussion of these
                issues in the statement to a brief presentation of why they will not
                have a significant effect on the human environment or providing a
                reference to their coverage elsewhere.
                 (2) Allocate assignments for preparation of the environmental
                impact statement among the lead and cooperating agencies, with the lead
                agency retaining responsibility for the statement.
                 (3) Indicate any public environmental assessments and other
                environmental impact statements that are being or will be prepared and
                are related to but are not part of the scope of the impact statement
                under consideration.
                 (4) Identify other environmental review, authorization, and
                consultation requirements so the lead and cooperating agencies may
                prepare other required analyses and studies concurrently and integrated
                with the environmental impact statement, as provided in Sec. 1502.24
                of this chapter.
                 (5) Indicate the relationship between the timing of the preparation
                of environmental analyses and the agencies' tentative planning and
                decision-making schedule.
                 (g) Revisions. An agency shall revise the determinations made under
                paragraphs (b), (c), (e), and (f) of this section if substantial
                changes are made later in the proposed action, or if significant new
                circumstances or information arise which bear on the proposal or its
                impacts.
                Sec. 1501.10 Time limits.
                 (a) To ensure that agencies conduct NEPA reviews as efficiently and
                expeditiously as practicable, Federal agencies should set time limits
                appropriate to individual actions or types of actions (consistent with
                the time intervals required by Sec. 1506.11 of this chapter).
                 (b) To ensure timely decision making, agencies shall complete:
                 (1) Environmental assessments within 1 year unless a senior agency
                official of the lead agency approves a longer
                [[Page 43363]]
                period in writing and establishes a new time limit. One year is
                measured from the date of agency decision to prepare an environmental
                assessment to the publication of an environmental assessment or a
                finding of no significant impact.
                 (2) Environmental impact statements within 2 years unless a senior
                agency official of the lead agency approves a longer period in writing
                and establishes a new time limit. Two years is measured from the date
                of the issuance of the notice of intent to the date a record of
                decision is signed.
                 (c) The senior agency official may consider the following factors
                in determining time limits:
                 (1) Potential for environmental harm.
                 (2) Size of the proposed action.
                 (3) State of the art of analytic techniques.
                 (4) Degree of public need for the proposed action, including the
                consequences of delay.
                 (5) Number of persons and agencies affected.
                 (6) Availability of relevant information.
                 (7) Other time limits imposed on the agency by law, regulations, or
                Executive order.
                 (d) The senior agency official may set overall time limits or
                limits for each constituent part of the NEPA process, which may
                include:
                 (1) Decision on whether to prepare an environmental impact
                statement (if not already decided).
                 (2) Determination of the scope of the environmental impact
                statement.
                 (3) Preparation of the draft environmental impact statement.
                 (4) Review of any comments on the draft environmental impact
                statement from the public and agencies.
                 (5) Preparation of the final environmental impact statement.
                 (6) Review of any comments on the final environmental impact
                statement.
                 (7) Decision on the action based in part on the environmental
                impact statement.
                 (e) The agency may designate a person (such as the project manager
                or a person in the agency's office with NEPA responsibilities) to
                expedite the NEPA process.
                 (f) State, Tribal, or local agencies or members of the public may
                request a Federal agency to set time limits.
                Sec. 1501.11 Tiering.
                 (a) Agencies should tier their environmental impact statements and
                environmental assessments when it would eliminate repetitive
                discussions of the same issues, focus on the actual issues ripe for
                decision, and exclude from consideration issues already decided or not
                yet ripe at each level of environmental review. Tiering may also be
                appropriate for different stages of actions.
                 (b) When an agency has prepared an environmental impact statement
                or environmental assessment for a program or policy and then prepares a
                subsequent statement or assessment on an action included within the
                entire program or policy (such as a project- or site-specific action),
                the tiered document needs only to summarize and incorporate by
                reference the issues discussed in the broader document. The tiered
                document shall concentrate on the issues specific to the subsequent
                action. The tiered document shall state where the earlier document is
                available.
                 (c) Tiering is appropriate when the sequence from an environmental
                impact statement or environmental assessment is:
                 (1) From a programmatic, plan, or policy environmental impact
                statement or environmental assessment to a program, plan, or policy
                statement or assessment of lesser or narrower scope or to a site-
                specific statement or assessment.
                 (2) From an environmental impact statement or environmental
                assessment on a specific action at an early stage (such as need and
                site selection) to a supplement (which is preferred) or a subsequent
                statement or assessment at a later stage (such as environmental
                mitigation). Tiering in such cases is appropriate when it helps the
                lead agency to focus on the issues that are ripe for decision and
                exclude from consideration issues already decided or not yet ripe.
                Sec. 1501.12 Incorporation by reference.
                 Agencies shall incorporate material, such as planning studies,
                analyses, or other relevant information, into environmental documents
                by reference when the effect will be to cut down on bulk without
                impeding agency and public review of the action. Agencies shall cite
                the incorporated material in the document and briefly describe its
                content. Agencies may not incorporate material by reference unless it
                is reasonably available for inspection by potentially interested
                persons within the time allowed for comment. Agencies shall not
                incorporate by reference material based on proprietary data that is not
                available for review and comment.
                0
                4. Revise part 1502 to read as follows:
                PART 1502--ENVIRONMENTAL IMPACT STATEMENT
                Sec.
                1502.1 Purpose of environmental impact statement.
                1502.2 Implementation.
                1502.3 Statutory requirements for statements.
                1502.4 Major Federal actions requiring the preparation of
                environmental impact statements.
                1502.5 Timing.
                1502.6 Interdisciplinary preparation.
                1502.7 Page limits.
                1502.8 Writing.
                1502.9 Draft, final, and supplemental statements.
                1502.10 Recommended format.
                1502.11 Cover.
                1502.12 Summary.
                1502.13 Purpose and need.
                1502.14 Alternatives including the proposed action.
                1502.15 Affected environment.
                1502.16 Environmental consequences.
                1502.17 Summary of submitted alternatives, information, and
                analyses.
                1502.18 List of preparers.
                1502.19 Appendix.
                1502.20 Publication of the environmental impact statement.
                1502.21 Incomplete or unavailable information.
                1502.22 Cost-benefit analysis.
                1502.23 Methodology and scientific accuracy.
                1502.24 Environmental review and consultation requirements.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
                E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1502.1 Purpose of environmental impact statement.
                 The primary purpose of an environmental impact statement prepared
                pursuant to section 102(2)(C) of NEPA is to ensure agencies consider
                the environmental impacts of their actions in decision making. It shall
                provide full and fair discussion of significant environmental impacts
                and shall inform decision makers and the public of reasonable
                alternatives that would avoid or minimize adverse impacts or enhance
                the quality of the human environment. Agencies shall focus on
                significant environmental issues and alternatives and shall reduce
                paperwork and the accumulation of extraneous background data.
                Statements shall be concise, clear, and to the point, and shall be
                supported by evidence that the agency has made the necessary
                environmental analyses. An environmental impact statement is a document
                that informs Federal agency decision making and the public.
                [[Page 43364]]
                Sec. 1502.2 Implementation.
                 (a) Environmental impact statements shall not be encyclopedic.
                 (b) Environmental impact statements shall discuss impacts in
                proportion to their significance. There shall be only brief discussion
                of other than significant issues. As in a finding of no significant
                impact, there should be only enough discussion to show why more study
                is not warranted.
                 (c) Environmental impact statements shall be analytic, concise, and
                no longer than necessary to comply with NEPA and with the regulations
                in this subchapter. Length should be proportional to potential
                environmental effects and project size.
                 (d) Environmental impact statements shall state how alternatives
                considered in it and decisions based on it will or will not achieve the
                requirements of sections 101 and 102(1) of NEPA as interpreted in the
                regulations in this subchapter and other environmental laws and
                policies.
                 (e) The range of alternatives discussed in environmental impact
                statements shall encompass those to be considered by the decision
                maker.
                 (f) Agencies shall not commit resources prejudicing selection of
                alternatives before making a final decision (see also Sec. 1506.1 of
                this chapter).
                 (g) Environmental impact statements shall serve as the means of
                assessing the environmental impact of proposed agency actions, rather
                than justifying decisions already made.
                Sec. 1502.3 Statutory requirements for statements.
                 As required by section 102(2)(C) of NEPA, environmental impact
                statements are to be included in every Federal agency recommendation or
                report on proposals for legislation and other major Federal actions
                significantly affecting the quality of the human environment.
                Sec. 1502.4 Major Federal actions requiring the preparation of
                environmental impact statements.
                 (a) Agencies shall define the proposal that is the subject of an
                environmental impact statement based on the statutory authorities for
                the proposed action. Agencies shall use the criteria for scope (Sec.
                1501.9(e) of this chapter) to determine which proposal(s) shall be the
                subject of a particular statement. Agencies shall evaluate in a single
                environmental impact statement proposals or parts of proposals that are
                related to each other closely enough to be, in effect, a single course
                of action.
                 (b) Environmental impact statements may be prepared for
                programmatic Federal actions, such as the adoption of new agency
                programs. When agencies prepare such statements, they should be
                relevant to the program decision and timed to coincide with meaningful
                points in agency planning and decision making.
                 (1) When preparing statements on programmatic actions (including
                proposals by more than one agency), agencies may find it useful to
                evaluate the proposal(s) in one of the following ways:
                 (i) Geographically, including actions occurring in the same general
                location, such as body of water, region, or metropolitan area.
                 (ii) Generically, including actions that have relevant
                similarities, such as common timing, impacts, alternatives, methods of
                implementation, media, or subject matter.
                 (iii) By stage of technological development including Federal or
                federally assisted research, development or demonstration programs for
                new technologies that, if applied, could significantly affect the
                quality of the human environment. Statements on such programs should be
                available before the program has reached a stage of investment or
                commitment to implementation likely to determine subsequent development
                or restrict later alternatives.
                 (2) Agencies shall as appropriate employ scoping (Sec. 1501.9 of
                this chapter), tiering (Sec. 1501.11 of this chapter), and other
                methods listed in Sec. Sec. 1500.4 and 1500.5 of this chapter to
                relate programmatic and narrow actions and to avoid duplication and
                delay. Agencies may tier their environmental analyses to defer detailed
                analysis of environmental impacts of specific program elements until
                such program elements are ripe for final agency action.
                Sec. 1502.5 Timing.
                 An agency should commence preparation of an environmental impact
                statement as close as practicable to the time the agency is developing
                or receives a proposal so that preparation can be completed in time for
                the final statement to be included in any recommendation or report on
                the proposal. The statement shall be prepared early enough so that it
                can serve as an important practical contribution to the decision-making
                process and will not be used to rationalize or justify decisions
                already made (Sec. Sec. 1501.2 of this chapter and 1502.2). For
                instance:
                 (a) For projects directly undertaken by Federal agencies, the
                agency shall prepare the environmental impact statement at the
                feasibility analysis (go/no-go) stage and may supplement it at a later
                stage, if necessary.
                 (b) For applications to the agency requiring an environmental
                impact statement, the agency shall commence the statement as soon as
                practicable after receiving the application. Federal agencies should
                work with potential applicants and applicable State, Tribal, and local
                agencies and governments prior to receipt of the application.
                 (c) For adjudication, the final environmental impact statement
                shall normally precede the final staff recommendation and that portion
                of the public hearing related to the impact study. In appropriate
                circumstances, the statement may follow preliminary hearings designed
                to gather information for use in the statements.
                 (d) For informal rulemaking, the draft environmental impact
                statement shall normally accompany the proposed rule.
                Sec. 1502.6 Interdisciplinary preparation.
                 Agencies shall prepare environmental impact statements using an
                interdisciplinary approach that will ensure the integrated use of the
                natural and social sciences and the environmental design arts (section
                102(2)(A) of NEPA). The disciplines of the preparers shall be
                appropriate to the scope and issues identified in the scoping process
                (Sec. 1501.9 of this chapter).
                Sec. 1502.7 Page limits.
                 The text of final environmental impact statements (paragraphs
                (a)(4) through (6) of Sec. 1502.10) shall be 150 pages or fewer and,
                for proposals of unusual scope or complexity, shall be 300 pages or
                fewer unless a senior agency official of the lead agency approves in
                writing a statement to exceed 300 pages and establishes a new page
                limit.
                Sec. 1502.8 Writing.
                 Agencies shall write environmental impact statements in plain
                language and may use appropriate graphics so that decision makers and
                the public can readily understand such statements. Agencies should
                employ writers of clear prose or editors to write, review, or edit
                statements, which shall be based upon the analysis and supporting data
                from the natural and social sciences and the environmental design arts.
                Sec. 1502.9 Draft, final, and supplemental statements.
                 (a) Generally. Except for proposals for legislation as provided in
                Sec. 1506.8 of this chapter, agencies shall prepare environmental
                impact statements in two stages and, where necessary,
                [[Page 43365]]
                supplement them, as provided in paragraph (d)(1) of this section.
                 (b) Draft environmental impact statements. Agencies shall prepare
                draft environmental impact statements in accordance with the scope
                decided upon in the scoping process (Sec. 1501.9 of this chapter). The
                lead agency shall work with the cooperating agencies and shall obtain
                comments as required in part 1503 of this chapter. To the fullest
                extent practicable, the draft statement must meet the requirements
                established for final statements in section 102(2)(C) of NEPA as
                interpreted in the regulations in this subchapter. If a draft statement
                is so inadequate as to preclude meaningful analysis, the agency shall
                prepare and publish a supplemental draft of the appropriate portion. At
                appropriate points in the draft statement, the agency shall discuss all
                major points of view on the environmental impacts of the alternatives
                including the proposed action.
                 (c) Final environmental impact statements. Final environmental
                impact statements shall address comments as required in part 1503 of
                this chapter. At appropriate points in the final statement, the agency
                shall discuss any responsible opposing view that was not adequately
                discussed in the draft statement and shall indicate the agency's
                response to the issues raised.
                 (d) Supplemental environmental impact statements. Agencies:
                 (1) Shall prepare supplements to either draft or final
                environmental impact statements if a major Federal action remains to
                occur, and:
                 (i) The agency makes substantial changes to the proposed action
                that are relevant to environmental concerns; or
                 (ii) There are significant new circumstances or information
                relevant to environmental concerns and bearing on the proposed action
                or its impacts.
                 (2) May also prepare supplements when the agency determines that
                the purposes of the Act will be furthered by doing so.
                 (3) Shall prepare, publish, and file a supplement to a statement
                (exclusive of scoping (Sec. 1501.9 of this chapter)) as a draft and
                final statement, as is appropriate to the stage of the statement
                involved, unless the Council approves alternative procedures (Sec.
                1506.12 of this chapter).
                 (4) May find that changes to the proposed action or new
                circumstances or information relevant to environmental concerns are not
                significant and therefore do not require a supplement. The agency
                should document the finding consistent with its agency NEPA procedures
                (Sec. 1507.3 of this chapter), or, if necessary, in a finding of no
                significant impact supported by an environmental assessment.
                Sec. 1502.10 Recommended format.
                 (a) Agencies shall use a format for environmental impact statements
                that will encourage good analysis and clear presentation of the
                alternatives including the proposed action. Agencies should use the
                following standard format for environmental impact statements unless
                the agency determines that there is a more effective format for
                communication:
                 (1) Cover.
                 (2) Summary.
                 (3) Table of contents.
                 (4) Purpose of and need for action.
                 (5) Alternatives including the proposed action (sections
                102(2)(C)(iii) and 102(2)(E) of NEPA).
                 (6) Affected environment and environmental consequences (especially
                sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA).
                 (7) Submitted alternatives, information, and analyses.
                 (8) List of preparers.
                 (9) Appendices (if any).
                 (b) If an agency uses a different format, it shall include
                paragraphs (a)(1) through (8) of this section, as further described in
                Sec. Sec. 1502.11 through 1502.19, in any appropriate format.
                Sec. 1502.11 Cover.
                 The cover shall not exceed one page and include:
                 (a) A list of the responsible agencies, including the lead agency
                and any cooperating agencies.
                 (b) The title of the proposed action that is the subject of the
                statement (and, if appropriate, the titles of related cooperating
                agency actions), together with the State(s) and county(ies) (or other
                jurisdiction(s), if applicable) where the action is located.
                 (c) The name, address, and telephone number of the person at the
                agency who can supply further information.
                 (d) A designation of the statement as a draft, final, or draft or
                final supplement.
                 (e) A one-paragraph abstract of the statement.
                 (f) The date by which the agency must receive comments (computed in
                cooperation with EPA under Sec. 1506.11 of this chapter).
                 (g) For the final environmental impact statement, the estimated
                total cost to prepare both the draft and final environmental impact
                statement, including the costs of agency full-time equivalent (FTE)
                personnel hours, contractor costs, and other direct costs. If
                practicable and noted where not practicable, agencies also should
                include costs incurred by cooperating and participating agencies,
                applicants, and contractors.
                Sec. 1502.12 Summary.
                 Each environmental impact statement shall contain a summary that
                adequately and accurately summarizes the statement. The summary shall
                stress the major conclusions, areas of disputed issues raised by
                agencies and the public, and the issues to be resolved (including the
                choice among alternatives). The summary normally will not exceed 15
                pages.
                Sec. 1502.13 Purpose and need.
                 The statement shall briefly specify the underlying purpose and need
                for the proposed action. When an agency's statutory duty is to review
                an application for authorization, the agency shall base the purpose and
                need on the goals of the applicant and the agency's authority.
                Sec. 1502.14 Alternatives including the proposed action.
                 The alternatives section should present the environmental impacts
                of the proposed action and the alternatives in comparative form based
                on the information and analysis presented in the sections on the
                affected environment (Sec. 1502.15) and the environmental consequences
                (Sec. 1502.16). In this section, agencies shall:
                 (a) Evaluate reasonable alternatives to the proposed action, and,
                for alternatives that the agency eliminated from detailed study,
                briefly discuss the reasons for their elimination.
                 (b) Discuss each alternative considered in detail, including the
                proposed action, so that reviewers may evaluate their comparative
                merits.
                 (c) Include the no action alternative.
                 (d) Identify the agency's preferred alternative or alternatives, if
                one or more exists, in the draft statement and identify such
                alternative in the final statement unless another law prohibits the
                expression of such a preference.
                 (e) Include appropriate mitigation measures not already included in
                the proposed action or alternatives.
                 (f) Limit their consideration to a reasonable number of
                alternatives.
                Sec. 1502.15 Affected environment.
                 The environmental impact statement shall succinctly describe the
                environment of the area(s) to be affected or created by the
                alternatives under consideration, including the reasonably foreseeable
                environmental trends and planned actions in the area(s). The
                environmental impact statement may
                [[Page 43366]]
                combine the description with evaluation of the environmental
                consequences (Sec. 1502.16), and it shall be no longer than is
                necessary to understand the effects of the alternatives. Data and
                analyses in a statement shall be commensurate with the importance of
                the impact, with less important material summarized, consolidated, or
                simply referenced. Agencies shall avoid useless bulk in statements and
                shall concentrate effort and attention on important issues. Verbose
                descriptions of the affected environment are themselves no measure of
                the adequacy of an environmental impact statement.
                Sec. 1502.16 Environmental consequences.
                 (a) The environmental consequences section forms the scientific and
                analytic basis for the comparisons under Sec. 1502.14. It shall
                consolidate the discussions of those elements required by sections
                102(2)(C)(i), (ii), (iv), and (v) of NEPA that are within the scope of
                the statement and as much of section 102(2)(C)(iii) of NEPA as is
                necessary to support the comparisons. This section should not duplicate
                discussions in Sec. 1502.14. The discussion shall include:
                 (1) The environmental impacts of the proposed action and reasonable
                alternatives to the proposed action and the significance of those
                impacts. The comparison of the proposed action and reasonable
                alternatives shall be based on this discussion of the impacts.
                 (2) Any adverse environmental effects that cannot be avoided should
                the proposal be implemented.
                 (3) The relationship between short-term uses of man's environment
                and the maintenance and enhancement of long-term productivity.
                 (4) Any irreversible or irretrievable commitments of resources that
                would be involved in the proposal should it be implemented.
                 (5) Possible conflicts between the proposed action and the
                objectives of Federal, regional, State, Tribal, and local land use
                plans, policies and controls for the area concerned. (Sec. 1506.2(d)
                of this chapter)
                 (6) Energy requirements and conservation potential of various
                alternatives and mitigation measures.
                 (7) Natural or depletable resource requirements and conservation
                potential of various alternatives and mitigation measures.
                 (8) Urban quality, historic and cultural resources, and the design
                of the built environment, including the reuse and conservation
                potential of various alternatives and mitigation measures.
                 (9) Means to mitigate adverse environmental impacts (if not fully
                covered under Sec. 1502.14(e)).
                 (10) Where applicable, economic and technical considerations,
                including the economic benefits of the proposed action.
                 (b) Economic or social effects by themselves do not require
                preparation of an environmental impact statement. However, when the
                agency determines that economic or social and natural or physical
                environmental effects are interrelated, the environmental impact
                statement shall discuss and give appropriate consideration to these
                effects on the human environment.
                Sec. 1502.17 Summary of submitted alternatives, information, and
                analyses.
                 (a) The draft environmental impact statement shall include a
                summary that identifies all alternatives, information, and analyses
                submitted by State, Tribal, and local governments and other public
                commenters during the scoping process for consideration by the lead and
                cooperating agencies in developing the environmental impact statement.
                 (1) The agency shall append to the draft environmental impact
                statement or otherwise publish all comments (or summaries thereof where
                the response has been exceptionally voluminous) received during the
                scoping process that identified alternatives, information, and analyses
                for the agency's consideration.
                 (2) Consistent with Sec. 1503.1(a)(3) of this chapter, the lead
                agency shall invite comment on the summary identifying all submitted
                alternatives, information, and analyses in the draft environmental
                impact statement.
                 (b) The final environmental impact statement shall include a
                summary that identifies all alternatives, information, and analyses
                submitted by State, Tribal, and local governments and other public
                commenters for consideration by the lead and cooperating agencies in
                developing the final environmental impact statement.
                Sec. 1502.18 List of preparers.
                 The environmental impact statement shall list the names, together
                with their qualifications (expertise, experience, professional
                disciplines), of the persons who were primarily responsible for
                preparing the environmental impact statement or significant background
                papers, including basic components of the statement. Where possible,
                the environmental impact statement shall identify the persons who are
                responsible for a particular analysis, including analyses in background
                papers. Normally the list will not exceed two pages.
                Sec. 1502.19 Appendix.
                 If an agency prepares an appendix, the agency shall publish it with
                the environmental impact statement, and it shall consist of:
                 (a) Material prepared in connection with an environmental impact
                statement (as distinct from material that is not so prepared and is
                incorporated by reference (Sec. 1501.12 of this chapter)).
                 (b) Material substantiating any analysis fundamental to the impact
                statement.
                 (c) Material relevant to the decision to be made.
                 (d) For draft environmental impact statements, all comments (or
                summaries thereof where the response has been exceptionally voluminous)
                received during the scoping process that identified alternatives,
                information, and analyses for the agency's consideration.
                 (e) For final environmental impact statements, the comment
                summaries and responses consistent with Sec. 1503.4 of this chapter.
                Sec. 1502.20 Publication of the environmental impact statement.
                 Agencies shall publish the entire draft and final environmental
                impact statements and unchanged statements as provided in Sec.
                1503.4(c) of this chapter. The agency shall transmit the entire
                statement electronically (or in paper copy, if so requested due to
                economic or other hardship) to:
                 (a) Any Federal agency that has jurisdiction by law or special
                expertise with respect to any environmental impact involved and any
                appropriate Federal, State, Tribal, or local agency authorized to
                develop and enforce environmental standards.
                 (b) The applicant, if any.
                 (c) Any person, organization, or agency requesting the entire
                environmental impact statement.
                 (d) In the case of a final environmental impact statement, any
                person, organization, or agency that submitted substantive comments on
                the draft.
                Sec. 1502.21 Incomplete or unavailable information.
                 (a) When an agency is evaluating reasonably foreseeable significant
                adverse effects on the human environment in an environmental impact
                statement, and there is incomplete or unavailable information, the
                agency shall make clear that such information is lacking.
                 (b) If the incomplete but available information relevant to
                reasonably foreseeable significant adverse impacts is essential to a
                reasoned choice among alternatives, and the overall costs of obtaining
                it are not unreasonable, the agency shall include the information in
                the environmental impact statement.
                [[Page 43367]]
                 (c) If the information relevant to reasonably foreseeable
                significant adverse impacts cannot be obtained because the overall
                costs of obtaining it are unreasonable or the means to obtain it are
                not known, the agency shall include within the environmental impact
                statement:
                 (1) A statement that such information is incomplete or unavailable;
                 (2) A statement of the relevance of the incomplete or unavailable
                information to evaluating reasonably foreseeable significant adverse
                impacts on the human environment;
                 (3) A summary of existing credible scientific evidence that is
                relevant to evaluating the reasonably foreseeable significant adverse
                impacts on the human environment; and
                 (4) The agency's evaluation of such impacts based upon theoretical
                approaches or research methods generally accepted in the scientific
                community.
                 (d) For the purposes of this section, ``reasonably foreseeable''
                includes impacts that have catastrophic consequences, even if their
                probability of occurrence is low, provided that the analysis of the
                impacts is supported by credible scientific evidence, is not based on
                pure conjecture, and is within the rule of reason.
                Sec. 1502.22 Cost-benefit analysis.
                 If the agency is considering a cost-benefit analysis for the
                proposed action relevant to the choice among alternatives with
                different environmental effects, the agency shall incorporate the cost-
                benefit analysis by reference or append it to the statement as an aid
                in evaluating the environmental consequences. In such cases, to assess
                the adequacy of compliance with section 102(2)(B) of NEPA (ensuring
                appropriate consideration of unquantified environmental amenities and
                values in decision making, along with economical and technical
                considerations), the statement shall discuss the relationship between
                that analysis and any analyses of unquantified environmental impacts,
                values, and amenities. For purposes of complying with the Act, agencies
                need not display the weighing of the merits and drawbacks of the
                various alternatives in a monetary cost-benefit analysis and should not
                do so when there are important qualitative considerations. However, an
                environmental impact statement should at least indicate those
                considerations, including factors not related to environmental quality,
                that are likely to be relevant and important to a decision.
                Sec. 1502.23 Methodology and scientific accuracy.
                 Agencies shall ensure the professional integrity, including
                scientific integrity, of the discussions and analyses in environmental
                documents. Agencies shall make use of reliable existing data and
                resources. Agencies may make use of any reliable data sources, such as
                remotely gathered information or statistical models. They shall
                identify any methodologies used and shall make explicit reference to
                the scientific and other sources relied upon for conclusions in the
                statement. Agencies may place discussion of methodology in an appendix.
                Agencies are not required to undertake new scientific and technical
                research to inform their analyses. Nothing in this section is intended
                to prohibit agencies from compliance with the requirements of other
                statutes pertaining to scientific and technical research.
                Sec. 1502.24 Environmental review and consultation requirements.
                 (a) To the fullest extent possible, agencies shall prepare draft
                environmental impact statements concurrent and integrated with
                environmental impact analyses and related surveys and studies required
                by all other Federal environmental review laws and Executive orders
                applicable to the proposed action, including the Fish and Wildlife
                Coordination Act (16 U.S.C. 661 et seq.), the National Historic
                Preservation Act of 1966 (54 U.S.C. 300101 et seq.), and the Endangered
                Species Act of 1973 (16 U.S.C. 1531 et seq.).
                 (b) The draft environmental impact statement shall list all Federal
                permits, licenses, and other authorizations that must be obtained in
                implementing the proposal. If it is uncertain whether a Federal permit,
                license, or other authorization is necessary, the draft environmental
                impact statement shall so indicate.
                0
                5. Revise part 1503 to read as follows:
                PART 1503--COMMENTING ON ENVIRONMENTAL IMPACT STATEMENTS
                Sec.
                1503.1 Inviting comments and requesting information and analyses.
                1503.2 Duty to comment.
                1503.3 Specificity of comments and information.
                1503.4 Response to comments.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; E.O.
                13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1503.1 Inviting comments and requesting information and
                analyses.
                 (a) After preparing a draft environmental impact statement and
                before preparing a final environmental impact statement the agency
                shall:
                 (1) Obtain the comments of any Federal agency that has jurisdiction
                by law or special expertise with respect to any environmental impact
                involved or is authorized to develop and enforce environmental
                standards.
                 (2) Request the comments of:
                 (i) Appropriate State, Tribal, and local agencies that are
                authorized to develop and enforce environmental standards;
                 (ii) State, Tribal, or local governments that may be affected by
                the proposed action;
                 (iii) Any agency that has requested it receive statements on
                actions of the kind proposed;
                 (iv) The applicant, if any; and
                 (v) The public, affirmatively soliciting comments in a manner
                designed to inform those persons or organizations who may be interested
                in or affected by the proposed action.
                 (3) Invite comment specifically on the submitted alternatives,
                information, and analyses and the summary thereof (Sec. 1502.17 of
                this chapter).
                 (b) An agency may request comments on a final environmental impact
                statement before the final decision and set a deadline for providing
                such comments. Other agencies or persons may make comments consistent
                with the time periods under Sec. 1506.11 of this chapter.
                 (c) An agency shall provide for electronic submission of public
                comments, with reasonable measures to ensure the comment process is
                accessible to affected persons.
                Sec. 1503.2 Duty to comment.
                 Cooperating agencies and agencies that are authorized to develop
                and enforce environmental standards shall comment on statements within
                their jurisdiction, expertise, or authority within the time period
                specified for comment in Sec. 1506.11 of this chapter. A Federal
                agency may reply that it has no comment. If a cooperating agency is
                satisfied that the environmental impact statement adequately reflects
                its views, it should reply that it has no comment.
                Sec. 1503.3 Specificity of comments and information.
                 (a) To promote informed decision making, comments on an
                environmental impact statement or on a proposed action shall be as
                specific as possible, may address either the adequacy of the statement
                or the merits of the alternatives discussed or both, and shall
                [[Page 43368]]
                provide as much detail as necessary to meaningfully participate and
                fully inform the agency of the commenter's position. Comments should
                explain why the issues raised are important to the consideration of
                potential environmental impacts and alternatives to the proposed
                action, as well as economic and employment impacts, and other impacts
                affecting the quality of the human environment. Comments should
                reference the corresponding section or page number of the draft
                environmental impact statement, propose specific changes to those parts
                of the statement, where possible, and include or describe the data
                sources and methodologies supporting the proposed changes.
                 (b) Comments on the submitted alternatives, information, and
                analyses and summary thereof (Sec. 1502.17 of this chapter) should be
                as specific as possible. Comments and objections of any kind shall be
                raised within the comment period on the draft environmental impact
                statement provided by the agency, consistent with Sec. 1506.11 of this
                chapter. If the agency requests comments on the final environmental
                impact statement before the final decision, consistent with Sec.
                1503.1(b), comments and objections of any kind shall be raised within
                the comment period provided by the agency. Comments and objections of
                any kind not provided within the comment period(s) shall be considered
                unexhausted and forfeited, consistent with Sec. 1500.3(b) of this
                chapter.
                 (c) When a participating agency criticizes a lead agency's
                predictive methodology, the participating agency should describe the
                alternative methodology that it prefers and why.
                 (d) A cooperating agency shall specify in its comments whether it
                needs additional information to fulfill other applicable environmental
                reviews or consultation requirements and what information it needs. In
                particular, it shall specify any additional information it needs to
                comment adequately on the draft statement's analysis of significant
                site-specific effects associated with the granting or approving by that
                cooperating agency of necessary Federal permits, licenses, or
                authorizations.
                 (e) When a cooperating agency with jurisdiction by law specifies
                mitigation measures it considers necessary to allow the agency to grant
                or approve applicable permit, license, or related requirements or
                concurrences, the cooperating agency shall cite to its applicable
                statutory authority.
                Sec. 1503.4 Response to comments.
                 (a) An agency preparing a final environmental impact statement
                shall consider substantive comments timely submitted during the public
                comment period. The agency may respond to individual comments or groups
                of comments. In the final environmental impact statement, the agency
                may respond by:
                 (1) Modifying alternatives including the proposed action.
                 (2) Developing and evaluating alternatives not previously given
                serious consideration by the agency.
                 (3) Supplementing, improving, or modifying its analyses.
                 (4) Making factual corrections.
                 (5) Explaining why the comments do not warrant further agency
                response, recognizing that agencies are not required to respond to each
                comment.
                 (b) An agency shall append or otherwise publish all substantive
                comments received on the draft statement (or summaries thereof where
                the response has been exceptionally voluminous).
                 (c) If changes in response to comments are minor and are confined
                to the responses described in paragraphs (a)(4) and (5) of this
                section, an agency may write any changes on errata sheets and attach
                the responses to the statement instead of rewriting the draft
                statement. In such cases, only the comments, the responses, and the
                changes and not the final statement need be published (Sec. 1502.20 of
                this chapter). The agency shall file the entire document with a new
                cover sheet with the Environmental Protection Agency as the final
                statement (Sec. 1506.10 of this chapter).
                0
                6. Revise part 1504 to read as follows:
                PART 1504--PRE-DECISIONAL REFERRALS TO THE COUNCIL OF PROPOSED
                FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY
                Sec.
                1504.1 Purpose.
                1504.2 Criteria for referral.
                1504.3 Procedure for referrals and response.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; E.O.
                13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1504.1 Purpose.
                 (a) This part establishes procedures for referring to the Council
                Federal interagency disagreements concerning proposed major Federal
                actions that might cause unsatisfactory environmental effects. It
                provides means for early resolution of such disagreements.
                 (b) Section 309 of the Clean Air Act (42 U.S.C. 7609) directs the
                Administrator of the Environmental Protection Agency to review and
                comment publicly on the environmental impacts of Federal activities,
                including actions for which agencies prepare environmental impact
                statements. If, after this review, the Administrator determines that
                the matter is ``unsatisfactory from the standpoint of public health or
                welfare or environmental quality,'' section 309 directs that the matter
                be referred to the Council (hereafter ``environmental referrals'').
                 (c) Under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)), other
                Federal agencies may prepare similar reviews of environmental impact
                statements, including judgments on the acceptability of anticipated
                environmental impacts. These reviews must be made available to the
                President, the Council, and the public.
                Sec. 1504.2 Criteria for referral.
                 Environmental referrals should be made to the Council only after
                concerted, timely (as early as practicable in the process), but
                unsuccessful attempts to resolve differences with the lead agency. In
                determining what environmental objections to the matter are appropriate
                to refer to the Council, an agency should weigh potential adverse
                environmental impacts, considering:
                 (a) Possible violation of national environmental standards or
                policies;
                 (b) Severity;
                 (c) Geographical scope;
                 (d) Duration;
                 (e) Importance as precedents;
                 (f) Availability of environmentally preferable alternatives; and
                 (g) Economic and technical considerations, including the economic
                costs of delaying or impeding the decision making of the agencies
                involved in the action.
                Sec. 1504.3 Procedure for referrals and response.
                 (a) A Federal agency making the referral to the Council shall:
                 (1) Notify the lead agency at the earliest possible time that it
                intends to refer a matter to the Council unless a satisfactory
                agreement is reached;
                 (2) Include such a notification whenever practicable in the
                referring agency's comments on the environmental assessment or draft
                environmental impact statement;
                 (3) Identify any essential information that is lacking and request
                that the lead agency make it available at the earliest possible time;
                and
                [[Page 43369]]
                 (4) Send copies of the referring agency's views to the Council.
                 (b) The referring agency shall deliver its referral to the Council
                no later than 25 days after the lead agency has made the final
                environmental impact statement available to the Environmental
                Protection Agency, participating agencies, and the public, and in the
                case of an environmental assessment, no later than 25 days after the
                lead agency makes it available. Except when the lead agency grants an
                extension of this period, the Council will not accept a referral after
                that date.
                 (c) The referral shall consist of:
                 (1) A copy of the letter signed by the head of the referring agency
                and delivered to the lead agency informing the lead agency of the
                referral and the reasons for it; and
                 (2) A statement supported by factual evidence leading to the
                conclusion that the matter is unsatisfactory from the standpoint of
                public health or welfare or environmental quality. The statement shall:
                 (i) Identify any disputed material facts and incorporate (by
                reference if appropriate) agreed upon facts;
                 (ii) Identify any existing environmental requirements or policies
                that would be violated by the matter;
                 (iii) Present the reasons for the referral;
                 (iv) Contain a finding by the agency whether the issue raised is of
                national importance because of the threat to national environmental
                resources or policies or for some other reason;
                 (v) Review the steps taken by the referring agency to bring its
                concerns to the attention of the lead agency at the earliest possible
                time; and
                 (vi) Give the referring agency's recommendations as to what
                mitigation alternative, further study, or other course of action
                (including abandonment of the matter) are necessary to remedy the
                situation.
                 (d) No later than 25 days after the referral to the Council, the
                lead agency may deliver a response to the Council and the referring
                agency. If the lead agency requests more time and gives assurance that
                the matter will not go forward in the interim, the Council may grant an
                extension. The response shall:
                 (1) Address fully the issues raised in the referral;
                 (2) Be supported by evidence and explanations, as appropriate; and
                 (3) Give the lead agency's response to the referring agency's
                recommendations.
                 (e) Applicants may provide views in writing to the Council no later
                than the response.
                 (f) No later than 25 days after receipt of both the referral and
                any response or upon being informed that there will be no response
                (unless the lead agency agrees to a longer time), the Council may take
                one or more of the following actions:
                 (1) Conclude that the process of referral and response has
                successfully resolved the problem.
                 (2) Initiate discussions with the agencies with the objective of
                mediation with referring and lead agencies.
                 (3) Obtain additional views and information.
                 (4) Determine that the issue is not one of national importance and
                request the referring and lead agencies to pursue their decision
                process.
                 (5) Determine that the referring and lead agencies should further
                negotiate the issue, and the issue is not appropriate for Council
                consideration until one or more heads of agencies report to the Council
                that the agencies' disagreements are irreconcilable.
                 (6) Publish its findings and recommendations (including, where
                appropriate, a finding that the submitted evidence does not support the
                position of an agency).
                 (7) When appropriate, submit the referral and the response together
                with the Council's recommendation to the President for action.
                 (g) The Council shall take no longer than 60 days to complete the
                actions specified in paragraph (f)(2), (3), or (5) of this section.
                 (h) The referral process is not intended to create any private
                rights of action or to be judicially reviewable because any voluntary
                resolutions by the agency parties do not represent final agency action
                and instead are only provisional and dependent on later consistent
                action by the action agencies.
                0
                7. Revise part 1505 to read as follows:
                PART 1505--NEPA AND AGENCY DECISION MAKING
                Sec.
                1505.1 [Reserved]
                1505.2 Record of decision in cases requiring environmental impact
                statements.
                1505.3 Implementing the decision.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
                E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1505.1 [Reserved]
                Sec. 1505.2 Record of decision in cases requiring environmental
                impact statements.
                 (a) At the time of its decision (Sec. 1506.11 of this chapter) or,
                if appropriate, its recommendation to Congress, each agency shall
                prepare and timely publish a concise public record of decision or joint
                record of decision. The record, which each agency may integrate into
                any other record it prepares, shall:
                 (1) State the decision.
                 (2) Identify alternatives considered by the agency in reaching its
                decision, specifying the alternative or alternatives considered
                environmentally preferable. An agency may discuss preferences among
                alternatives based on relevant factors including economic and technical
                considerations and agency statutory missions. An agency shall identify
                and discuss all such factors, including any essential considerations of
                national policy, that the agency balanced in making its decision and
                state how those considerations entered into its decision.
                 (3) State whether the agency has adopted all practicable means to
                avoid or minimize environmental harm from the alternative selected, and
                if not, why the agency did not. The agency shall adopt and summarize,
                where applicable, a monitoring and enforcement program for any
                enforceable mitigation requirements or commitments.
                 (b) Informed by the summary of the submitted alternatives,
                information, and analyses in the final environmental impact statement
                (Sec. 1502.17(b) of this chapter), together with any other material in
                the record that he or she determines to be relevant, the decision maker
                shall certify in the record of decision that the agency has considered
                all of the alternatives, information, analyses, and objections
                submitted by State, Tribal, and local governments and public commenters
                for consideration by the lead and cooperating agencies in developing
                the environmental impact statement. Agency environmental impact
                statements certified in accordance with this section are entitled to a
                presumption that the agency has considered the submitted alternatives,
                information, and analyses, including the summary thereof, in the final
                environmental impact statement (Sec. 1502.17(b)).
                Sec. 1505.3 Implementing the decision.
                 Agencies may provide for monitoring to assure that their decisions
                are carried out and should do so in important cases. Mitigation (Sec.
                1505.2(a)(3)) and other conditions established in the environmental
                impact statement or during its review and committed as part of the
                decision shall be implemented by the lead agency or other appropriate
                consenting agency. The lead agency shall:
                 (a) Include appropriate conditions in grants, permits, or other
                approvals.
                [[Page 43370]]
                 (b) Condition funding of actions on mitigation.
                 (c) Upon request, inform cooperating or participating agencies on
                progress in carrying out mitigation measures that they have proposed
                and were adopted by the agency making the decision.
                 (d) Upon request, publish the results of relevant monitoring.
                0
                8. Revise part 1506 to read as follows:
                PART 1506--OTHER REQUIREMENTS OF NEPA
                Sec.
                1506.1 Limitations on actions during NEPA process.
                1506.2 Elimination of duplication with State, Tribal, and local
                procedures.
                1506.3 Adoption.
                1506.4 Combining documents.
                1506.5 Agency responsibility for environmental documents.
                1506.6 Public involvement.
                1506.7 Further guidance.
                1506.8 Proposals for legislation.
                1506.9 Proposals for regulations.
                1506.10 Filing requirements.
                1506.11 Timing of agency action.
                1506.12 Emergencies.
                1506.13 Effective date.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
                E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1506.1 Limitations on actions during NEPA process.
                 (a) Except as provided in paragraphs (b) and (c) of this section,
                until an agency issues a finding of no significant impact, as provided
                in Sec. 1501.6 of this chapter, or record of decision, as provided in
                Sec. 1505.2 of this chapter, no action concerning the proposal may be
                taken that would:
                 (1) Have an adverse environmental impact; or
                 (2) Limit the choice of reasonable alternatives.
                 (b) If any agency is considering an application from a non-Federal
                entity and is aware that the applicant is about to take an action
                within the agency's jurisdiction that would meet either of the criteria
                in paragraph (a) of this section, then the agency shall promptly notify
                the applicant that the agency will take appropriate action to ensure
                that the objectives and procedures of NEPA are achieved. This section
                does not preclude development by applicants of plans or designs or
                performance of other activities necessary to support an application for
                Federal, State, Tribal, or local permits or assistance. An agency
                considering a proposed action for Federal funding may authorize such
                activities, including, but not limited to, acquisition of interests in
                land (e.g., fee simple, rights-of-way, and conservation easements),
                purchase of long lead-time equipment, and purchase options made by
                applicants.
                 (c) While work on a required programmatic environmental review is
                in progress and the action is not covered by an existing programmatic
                review, agencies shall not undertake in the interim any major Federal
                action covered by the program that may significantly affect the quality
                of the human environment unless such action:
                 (1) Is justified independently of the program;
                 (2) Is itself accompanied by an adequate environmental review; and
                 (3) Will not prejudice the ultimate decision on the program.
                Interim action prejudices the ultimate decision on the program when it
                tends to determine subsequent development or limit alternatives.
                Sec. 1506.2 Elimination of duplication with State, Tribal, and local
                procedures.
                 (a) Federal agencies are authorized to cooperate with State,
                Tribal, and local agencies that are responsible for preparing
                environmental documents, including those prepared pursuant to section
                102(2)(D) of NEPA.
                 (b) To the fullest extent practicable unless specifically
                prohibited by law, agencies shall cooperate with State, Tribal, and
                local agencies to reduce duplication between NEPA and State, Tribal,
                and local requirements, including through use of studies, analysis, and
                decisions developed by State, Tribal, or local agencies. Except for
                cases covered by paragraph (a) of this section, such cooperation shall
                include, to the fullest extent practicable:
                 (1) Joint planning processes.
                 (2) Joint environmental research and studies.
                 (3) Joint public hearings (except where otherwise provided by
                statute).
                 (4) Joint environmental assessments.
                 (c) To the fullest extent practicable unless specifically
                prohibited by law, agencies shall cooperate with State, Tribal, and
                local agencies to reduce duplication between NEPA and comparable State,
                Tribal, and local requirements. Such cooperation shall include, to the
                fullest extent practicable, joint environmental impact statements. In
                such cases, one or more Federal agencies and one or more State, Tribal,
                or local agencies shall be joint lead agencies. Where State or Tribal
                laws or local ordinances have environmental impact statement or similar
                requirements in addition to but not in conflict with those in NEPA,
                Federal agencies may cooperate in fulfilling these requirements, as
                well as those of Federal laws, so that one document will comply with
                all applicable laws.
                 (d) To better integrate environmental impact statements into State,
                Tribal, or local planning processes, environmental impact statements
                shall discuss any inconsistency of a proposed action with any approved
                State, Tribal, or local plan or law (whether or not federally
                sanctioned). Where an inconsistency exists, the statement should
                describe the extent to which the agency would reconcile its proposed
                action with the plan or law. While the statement should discuss any
                inconsistencies, NEPA does not require reconciliation.
                Sec. 1506.3 Adoption.
                 (a) Generally. An agency may adopt a Federal draft or final
                environmental impact statement, environmental assessment, or portion
                thereof, or categorical exclusion determination provided that the
                statement, assessment, portion thereof, or determination meets the
                standards for an adequate statement, assessment, or determination under
                the regulations in this subchapter.
                 (b) Environmental impact statements. (1) If the actions covered by
                the original environmental impact statement and the proposed action are
                substantially the same, the adopting agency shall republish it as a
                final statement consistent with Sec. 1506.10. If the actions are not
                substantially the same, the adopting agency shall treat the statement
                as a draft and republish it, consistent with Sec. 1506.10.
                 (2) Notwithstanding paragraph (b)(1) of this section, a cooperating
                agency may adopt in its record of decision without republishing the
                environmental impact statement of a lead agency when, after an
                independent review of the statement, the cooperating agency concludes
                that its comments and suggestions have been satisfied.
                 (c) Environmental assessments. If the actions covered by the
                original environmental assessment and the proposed action are
                substantially the same, the adopting agency may adopt the environmental
                assessment in its finding of no significant impact and provide notice
                consistent with Sec. 1501.6 of this chapter.
                 (d) Categorical exclusions. An agency may adopt another agency's
                determination that a categorical exclusion applies to a proposed action
                if the action covered by the original categorical exclusion
                determination and the adopting agency's proposed action are
                substantially the same. The agency shall document the adoption.
                 (e) Identification of certain circumstances. The adopting agency
                [[Page 43371]]
                shall specify if one of the following circumstances is present:
                 (1) The agency is adopting an assessment or statement that is not
                final within the agency that prepared it.
                 (2) The action assessed in the assessment or statement is the
                subject of a referral under part 1504 of this chapter.
                 (3) The assessment or statement's adequacy is the subject of a
                judicial action that is not final.
                Sec. 1506.4 Combining documents.
                 Agencies should combine, to the fullest extent practicable, any
                environmental document with any other agency document to reduce
                duplication and paperwork.
                Sec. 1506.5 Agency responsibility for environmental documents.
                 (a) Responsibility. The agency is responsible for the accuracy,
                scope (Sec. 1501.9(e) of this chapter), and content of environmental
                documents prepared by the agency or by an applicant or contractor under
                the supervision of the agency.
                 (b) Information. An agency may require an applicant to submit
                environmental information for possible use by the agency in preparing
                an environmental document. An agency also may direct an applicant or
                authorize a contractor to prepare an environmental document under the
                supervision of the agency.
                 (1) The agency should assist the applicant by outlining the types
                of information required or, for the preparation of environmental
                documents, shall provide guidance to the applicant or contractor and
                participate in their preparation.
                 (2) The agency shall independently evaluate the information
                submitted or the environmental document and shall be responsible for
                its accuracy, scope, and contents.
                 (3) The agency shall include in the environmental document the
                names and qualifications of the persons preparing environmental
                documents, and conducting the independent evaluation of any information
                submitted or environmental documents prepared by an applicant or
                contractor, such as in the list of preparers for environmental impact
                statements (Sec. 1502.18 of this chapter). It is the intent of this
                paragraph (b)(3) that acceptable work not be redone, but that it be
                verified by the agency.
                 (4) Contractors or applicants preparing environmental assessments
                or environmental impact statements shall submit a disclosure statement
                to the lead agency that specifies any financial or other interest in
                the outcome of the action. Such statement need not include privileged
                or confidential trade secrets or other confidential business
                information.
                 (5) Nothing in this section is intended to prohibit any agency from
                requesting any person, including the applicant, to submit information
                to it or to prohibit any person from submitting information to any
                agency for use in preparing environmental documents.
                Sec. 1506.6 Public involvement.
                 Agencies shall:
                 (a) Make diligent efforts to involve the public in preparing and
                implementing their NEPA procedures (Sec. 1507.3 of this chapter).
                 (b) Provide public notice of NEPA-related hearings, public
                meetings, and other opportunities for public involvement, and the
                availability of environmental documents so as to inform those persons
                and agencies who may be interested or affected by their proposed
                actions. When selecting appropriate methods for providing public
                notice, agencies shall consider the ability of affected persons and
                agencies to access electronic media.
                 (1) In all cases, the agency shall notify those who have requested
                notice on an individual action.
                 (2) In the case of an action with effects of national concern,
                notice shall include publication in the Federal Register. An agency may
                notify organizations that have requested regular notice.
                 (3) In the case of an action with effects primarily of local
                concern, the notice may include:
                 (i) Notice to State, Tribal, and local agencies that may be
                interested or affected by the proposed action.
                 (ii) Notice to interested or affected State, Tribal, and local
                governments.
                 (iii) Following the affected State or Tribe's public notice
                procedures for comparable actions.
                 (iv) Publication in local newspapers (in papers of general
                circulation rather than legal papers).
                 (v) Notice through other local media.
                 (vi) Notice to potentially interested community organizations
                including small business associations.
                 (vii) Publication in newsletters that may be expected to reach
                potentially interested persons.
                 (viii) Direct mailing to owners and occupants of nearby or affected
                property.
                 (ix) Posting of notice on and off site in the area where the action
                is to be located.
                 (x) Notice through electronic media (e.g., a project or agency
                website, email, or social media).
                 (c) Hold or sponsor public hearings, public meetings, or other
                opportunities for public involvement whenever appropriate or in
                accordance with statutory requirements applicable to the agency.
                Agencies may conduct public hearings and public meetings by means of
                electronic communication except where another format is required by
                law. When selecting appropriate methods for public involvement,
                agencies shall consider the ability of affected entities to access
                electronic media.
                 (d) Solicit appropriate information from the public.
                 (e) Explain in its procedures where interested persons can get
                information or status reports on environmental impact statements and
                other elements of the NEPA process.
                 (f) Make environmental impact statements, the comments received,
                and any underlying documents available to the public pursuant to the
                provisions of the Freedom of Information Act, as amended (5 U.S.C.
                552).
                Sec. 1506.7 Further guidance.
                 (a) The Council may provide further guidance concerning NEPA and
                its procedures consistent with Executive Order 13807, Establishing
                Discipline and Accountability in the Environmental Review and
                Permitting Process for Infrastructure Projects (August 5, 2017),
                Executive Order 13891, Promoting the Rule of Law Through Improved
                Agency Guidance Documents (October 9, 2019), and any other applicable
                Executive orders.
                 (b) To the extent that Council guidance issued prior to September
                14, 2020 is in conflict with this subchapter, the provisions of this
                subchapter apply.
                Sec. 1506.8 Proposals for legislation.
                 (a) When developing legislation, agencies shall integrate the NEPA
                process for proposals for legislation significantly affecting the
                quality of the human environment with the legislative process of the
                Congress. Technical drafting assistance does not by itself constitute a
                legislative proposal. Only the agency that has primary responsibility
                for the subject matter involved will prepare a legislative
                environmental impact statement.
                 (b) A legislative environmental impact statement is the detailed
                statement required by law to be included in an agency's recommendation
                or report on a legislative proposal to Congress. A legislative
                environmental impact statement shall be considered part of the formal
                transmittal of a legislative proposal to Congress; however, it may be
                transmitted to Congress up to 30 days
                [[Page 43372]]
                later in order to allow time for completion of an accurate statement
                that can serve as the basis for public and Congressional debate. The
                statement must be available in time for Congressional hearings and
                deliberations.
                 (c) Preparation of a legislative environmental impact statement
                shall conform to the requirements of the regulations in this
                subchapter, except as follows:
                 (1) There need not be a scoping process.
                 (2) Agencies shall prepare the legislative statement in the same
                manner as a draft environmental impact statement and need not prepare a
                final statement unless any of the following conditions exist. In such
                cases, the agency shall prepare and publish the statements consistent
                with Sec. Sec. 1503.1 of this chapter and 1506.11:
                 (i) A Congressional committee with jurisdiction over the proposal
                has a rule requiring both draft and final environmental impact
                statements.
                 (ii) The proposal results from a study process required by statute
                (such as those required by the Wild and Scenic Rivers Act (16 U.S.C.
                1271 et seq.)).
                 (iii) Legislative approval is sought for Federal or federally
                assisted construction or other projects that the agency recommends be
                located at specific geographic locations. For proposals requiring an
                environmental impact statement for the acquisition of space by the
                General Services Administration, a draft statement shall accompany the
                Prospectus or the 11(b) Report of Building Project Surveys to the
                Congress, and a final statement shall be completed before site
                acquisition.
                 (iv) The agency decides to prepare draft and final statements.
                 (d) Comments on the legislative statement shall be given to the
                lead agency, which shall forward them along with its own responses to
                the Congressional committees with jurisdiction.
                Sec. 1506.9 Proposals for regulations.
                 Where the proposed action is the promulgation of a rule or
                regulation, procedures and documentation pursuant to other statutory or
                Executive order requirements may satisfy one or more requirements of
                this subchapter. When a procedure or document satisfies one or more
                requirements of this subchapter, the agency may substitute it for the
                corresponding requirements in this subchapter and need not carry out
                duplicative procedures or documentation. Agencies shall identify which
                corresponding requirements in this subchapter are satisfied and consult
                with the Council to confirm such determinations.
                Sec. 1506.10 Filing requirements.
                 (a) Agencies shall file environmental impact statements together
                with comments and responses with the Environmental Protection Agency
                (EPA), Office of Federal Activities, consistent with EPA's procedures.
                 (b) Agencies shall file statements with the EPA no earlier than
                they are also transmitted to participating agencies and made available
                to the public. EPA may issue guidelines to agencies to implement its
                responsibilities under this section and Sec. 1506.11.
                Sec. 1506.11 Timing of agency action.
                 (a) The Environmental Protection Agency shall publish a notice in
                the Federal Register each week of the environmental impact statements
                filed since its prior notice. The minimum time periods set forth in
                this section are calculated from the date of publication of this
                notice.
                 (b) Unless otherwise provided by law, including statutory
                provisions for combining a final environmental impact statement and
                record of decision, Federal agencies may not make or issue a record of
                decision under Sec. 1505.2 of this chapter for the proposed action
                until the later of the following dates:
                 (1) 90 days after publication of the notice described in paragraph
                (a) of this section for a draft environmental impact statement.
                 (2) 30 days after publication of the notice described in paragraph
                (a) of this section for a final environmental impact statement.
                 (c) An agency may make an exception to the rule on timing set forth
                in paragraph (b) of this section for a proposed action in the following
                circumstances:
                 (1) Some agencies have a formally established appeal process after
                publication of the final environmental impact statement that allows
                other agencies or the public to take appeals on a decision and make
                their views known. In such cases where a real opportunity exists to
                alter the decision, the agency may make and record the decision at the
                same time it publishes the environmental impact statement. This means
                that the period for appeal of the decision and the 30-day period set
                forth in paragraph (b)(2) of this section may run concurrently. In such
                cases, the environmental impact statement shall explain the timing and
                the public's right of appeal and provide notification consistent with
                Sec. 1506.10; or
                 (2) An agency engaged in rulemaking under the Administrative
                Procedure Act or other statute for the purpose of protecting the public
                health or safety may waive the time period in paragraph (b)(2) of this
                section, publish a decision on the final rule simultaneously with
                publication of the notice of the availability of the final
                environmental impact statement, and provide notification consistent
                with Sec. 1506.10, as described in paragraph (a) of this section.
                 (d) If an agency files the final environmental impact statement
                within 90 days of the filing of the draft environmental impact
                statement with the Environmental Protection Agency, the decision-making
                period and the 90-day period may run concurrently. However, subject to
                paragraph (e) of this section, agencies shall allow at least 45 days
                for comments on draft statements.
                 (e) The lead agency may extend the minimum periods in paragraph (b)
                of this section and provide notification consistent with Sec. 1506.10.
                Upon a showing by the lead agency of compelling reasons of national
                policy, the Environmental Protection Agency may reduce the minimum
                periods and, upon a showing by any other Federal agency of compelling
                reasons of national policy, also may extend the minimum periods, but
                only after consultation with the lead agency. The lead agency may
                modify the minimum periods when necessary to comply with other specific
                statutory requirements. (Sec. 1507.3(f)(2) of this chapter) Failure to
                file timely comments shall not be a sufficient reason for extending a
                period. If the lead agency does not concur with the extension of time,
                EPA may not extend it for more than 30 days. When the Environmental
                Protection Agency reduces or extends any period of time it shall notify
                the Council.
                Sec. 1506.12 Emergencies.
                 Where emergency circumstances make it necessary to take an action
                with significant environmental impact without observing the provisions
                of the regulations in this subchapter, the Federal agency taking the
                action should consult with the Council about alternative arrangements
                for compliance with section 102(2)(C) of NEPA. Agencies and the Council
                will limit such arrangements to actions necessary to control the
                immediate impacts of the emergency. Other actions remain subject to
                NEPA review.
                Sec. 1506.13 Effective date.
                 The regulations in this subchapter apply to any NEPA process begun
                after September 14, 2020. An agency may apply the regulations in this
                subchapter to ongoing activities and environmental
                [[Page 43373]]
                documents begun before September 14, 2020.
                0
                9. Revise part 1507 to read as follows:
                PART 1507--AGENCY COMPLIANCE
                Sec.
                1507.1 Compliance.
                1507.2 Agency capability to comply.
                1507.3 Agency NEPA procedures.
                1507.4 Agency NEPA program information.
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
                E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1507.1 Compliance.
                 All agencies of the Federal Government shall comply with the
                regulations in this subchapter.
                Sec. 1507.2 Agency capability to comply.
                 Each agency shall be capable (in terms of personnel and other
                resources) of complying with the requirements of NEPA and the
                regulations in this subchapter. Such compliance may include use of the
                resources of other agencies, applicants, and other participants in the
                NEPA process, but the agency using the resources shall itself have
                sufficient capability to evaluate what others do for it and account for
                the contributions of others. Agencies shall:
                 (a) Fulfill the requirements of section 102(2)(A) of NEPA to
                utilize a systematic, interdisciplinary approach that will ensure the
                integrated use of the natural and social sciences and the environmental
                design arts in planning and in decision making that may have an impact
                on the human environment. Agencies shall designate a senior agency
                official to be responsible for overall review of agency NEPA
                compliance, including resolving implementation issues.
                 (b) Identify methods and procedures required by section 102(2)(B)
                of NEPA to ensure that presently unquantified environmental amenities
                and values may be given appropriate consideration.
                 (c) Prepare adequate environmental impact statements pursuant to
                section 102(2)(C) of NEPA and cooperate on the development of
                statements in the areas where the agency has jurisdiction by law or
                special expertise or is authorized to develop and enforce environmental
                standards.
                 (d) Study, develop, and describe alternatives to recommended
                courses of action in any proposal that involves unresolved conflicts
                concerning alternative uses of available resources, consistent with
                section 102(2)(E) of NEPA.
                 (e) Comply with the requirements of section 102(2)(H) of NEPA that
                the agency initiate and utilize ecological information in the planning
                and development of resource-oriented projects.
                 (f) Fulfill the requirements of sections 102(2)(F), 102(2)(G), and
                102(2)(I), of NEPA, Executive Order 11514, Protection and Enhancement
                of Environmental Quality, section 2, as amended by Executive Order
                11991, Relating to Protection and Enhancement of Environmental Quality,
                and Executive Order 13807, Establishing Discipline and Accountability
                in the Environmental Review and Permitting for Infrastructure Projects.
                Sec. 1507.3 Agency NEPA procedures.
                 (a) Where existing agency NEPA procedures are inconsistent with the
                regulations in this subchapter, the regulations in this subchapter
                shall apply, consistent with Sec. 1506.13 of this chapter, unless
                there is a clear and fundamental conflict with the requirements of
                another statute. The Council has determined that the categorical
                exclusions contained in agency NEPA procedures as of September 14, 2020
                are consistent with this subchapter.
                 (b) No more than 12 months after September 14, 2020, or 9 months
                after the establishment of an agency, whichever comes later, each
                agency shall develop or revise, as necessary, proposed procedures to
                implement the regulations in this subchapter, including to eliminate
                any inconsistencies with the regulations in this subchapter. When the
                agency is a department, it may be efficient for major subunits (with
                the consent of the department) to adopt their own procedures. Except
                for agency efficiency (see paragraph (c) of this section) or as
                otherwise required by law, agency NEPA procedures shall not impose
                additional procedures or requirements beyond those set forth in the
                regulations in this subchapter.
                 (1) Each agency shall consult with the Council while developing or
                revising its proposed procedures and before publishing them in the
                Federal Register for comment. Agencies with similar programs should
                consult with each other and the Council to coordinate their procedures,
                especially for programs requesting similar information from applicants.
                 (2) Agencies shall provide an opportunity for public review and
                review by the Council for conformity with the Act and the regulations
                in this subchapter before adopting their final procedures. The Council
                shall complete its review within 30 days of the receipt of the proposed
                final procedures. Once in effect, the agency shall publish its NEPA
                procedures and ensure that they are readily available to the public.
                 (c) Agencies shall adopt, as necessary, agency NEPA procedures to
                improve agency efficiency and ensure that agencies make decisions in
                accordance with the Act's procedural requirements. Such procedures
                shall include:
                 (1) Designating the major decision points for the agency's
                principal programs likely to have a significant effect on the human
                environment and assuring that the NEPA process begins at the earliest
                reasonable time, consistent with Sec. 1501.2 of this chapter, and
                aligns with the corresponding decision points.
                 (2) Requiring that relevant environmental documents, comments, and
                responses be part of the record in formal rulemaking or adjudicatory
                proceedings.
                 (3) Requiring that relevant environmental documents, comments, and
                responses accompany the proposal through existing agency review
                processes so that decision makers use the statement in making
                decisions.
                 (4) Requiring that the alternatives considered by the decision
                maker are encompassed by the range of alternatives discussed in the
                relevant environmental documents and that the decision maker consider
                the alternatives described in the environmental documents. If another
                decision document accompanies the relevant environmental documents to
                the decision maker, agencies are encouraged to make available to the
                public before the decision is made any part of that document that
                relates to the comparison of alternatives.
                 (5) Requiring the combination of environmental documents with other
                agency documents. Agencies may designate and rely on one or more
                procedures or documents under other statutes or Executive orders as
                satisfying some or all of the requirements in this subchapter, and
                substitute such procedures and documentation to reduce duplication.
                When an agency substitutes one or more procedures or documents for the
                requirements in this subchapter, the agency shall identify the
                respective requirements that are satisfied.
                 (d) Agency procedures should identify those activities or decisions
                that are not subject to NEPA, including:
                 (1) Activities or decisions expressly exempt from NEPA under
                another statute;
                 (2) Activities or decisions where compliance with NEPA would
                clearly
                [[Page 43374]]
                and fundamentally conflict with the requirements of another statute;
                 (3) Activities or decisions where compliance with NEPA would be
                inconsistent with Congressional intent expressed in another statute;
                 (4) Activities or decisions that are non-major Federal actions;
                 (5) Activities or decisions that are non-discretionary actions, in
                whole or in part, for which the agency lacks authority to consider
                environmental effects as part of its decision-making process; and
                 (6) Actions where the agency has determined that another statute's
                requirements serve the function of agency compliance with the Act.
                 (e) Agency procedures shall comply with the regulations in this
                subchapter except where compliance would be inconsistent with statutory
                requirements and shall include:
                 (1) Those procedures required by Sec. Sec. 1501.2(b)(4)
                (assistance to applicants) and 1506.6(e) of this chapter (status
                information).
                 (2) Specific criteria for and identification of those typical
                classes of action:
                 (i) Which normally do require environmental impact statements.
                 (ii) Which normally do not require either an environmental impact
                statement or an environmental assessment and do not have a significant
                effect on the human environment (categorical exclusions (Sec. 1501.4
                of this chapter)). Any procedures under this section shall provide for
                extraordinary circumstances in which a normally excluded action may
                have a significant environmental effect. Agency NEPA procedures shall
                identify when documentation of a categorical exclusion determination is
                required.
                 (iii) Which normally require environmental assessments but not
                necessarily environmental impact statements.
                 (3) Procedures for introducing a supplement to an environmental
                assessment or environmental impact statement into its formal
                administrative record, if such a record exists.
                 (f) Agency procedures may:
                 (1) Include specific criteria for providing limited exceptions to
                the provisions of the regulations in this subchapter for classified
                proposals. These are proposed actions that are specifically authorized
                under criteria established by an Executive order or statute to be kept
                secret in the interest of national defense or foreign policy and are in
                fact properly classified pursuant to such Executive order or statute.
                Agencies may safeguard and restrict from public dissemination
                environmental assessments and environmental impact statements that
                address classified proposals in accordance with agencies' own
                regulations applicable to classified information. Agencies should
                organize these documents so that classified portions are included as
                annexes, so that the agencies can make the unclassified portions
                available to the public.
                 (2) Provide for periods of time other than those presented in Sec.
                1506.11 of this chapter when necessary to comply with other specific
                statutory requirements, including requirements of lead or cooperating
                agencies.
                 (3) Provide that, where there is a lengthy period between the
                agency's decision to prepare an environmental impact statement and the
                time of actual preparation, the agency may publish the notice of intent
                required by Sec. 1501.9(d) of this chapter at a reasonable time in
                advance of preparation of the draft statement. Agency procedures shall
                provide for publication of supplemental notices to inform the public of
                a pause in its preparation of an environmental impact statement and for
                any agency decision to withdraw its notice of intent to prepare an
                environmental impact statement.
                 (4) Adopt procedures to combine its environmental assessment
                process with its scoping process.
                 (5) Establish a process that allows the agency to use a categorical
                exclusion listed in another agency's NEPA procedures after consulting
                with that agency to ensure the use of the categorical exclusion is
                appropriate. The process should ensure documentation of the
                consultation and identify to the public those categorical exclusions
                the agency may use for its proposed actions. Then, the agency may apply
                the categorical exclusion to its proposed actions.
                Sec. 1507.4 Agency NEPA program information.
                 (a) To allow agencies and the public to efficiently and effectively
                access information about NEPA reviews, agencies shall provide for
                agency websites or other means to make available environmental
                documents, relevant notices, and other relevant information for use by
                agencies, applicants, and interested persons. Such means of publication
                may include:
                 (1) Agency planning and environmental documents that guide agency
                management and provide for public involvement in agency planning
                processes;
                 (2) A directory of pending and final environmental documents;
                 (3) Agency policy documents, orders, terminology, and explanatory
                materials regarding agency decision-making processes;
                 (4) Agency planning program information, plans, and planning tools;
                and
                 (5) A database searchable by geographic information, document
                status, document type, and project type.
                 (b) Agencies shall provide for efficient and effective interagency
                coordination of their environmental program websites, including use of
                shared databases or application programming interface, in their
                implementation of NEPA and related authorities.
                0
                10. Revise part 1508 to read as follows:
                PART 1508--DEFINITIONS
                Sec.
                1508.1 Definitions.
                1508.2 [Reserved]
                 Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C.
                7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as
                amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and
                E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.
                Sec. 1508.1 Definitions.
                 The following definitions apply to the regulations in this
                subchapter. Federal agencies shall use these terms uniformly throughout
                the Federal Government.
                 (a) Act or NEPA means the National Environmental Policy Act, as
                amended (42 U.S.C. 4321, et seq.).
                 (b) Affecting means will or may have an effect on.
                 (c) Authorization means any license, permit, approval, finding,
                determination, or other administrative decision issued by an agency
                that is required or authorized under Federal law in order to implement
                a proposed action.
                 (d) Categorical exclusion means a category of actions that the
                agency has determined, in its agency NEPA procedures (Sec. 1507.3 of
                this chapter), normally do not have a significant effect on the human
                environment.
                 (e) Cooperating agency means any Federal agency (and a State,
                Tribal, or local agency with agreement of the lead agency) other than a
                lead agency that has jurisdiction by law or special expertise with
                respect to any environmental impact involved in a proposal (or a
                reasonable alternative) for legislation or other major Federal action
                that may significantly affect the quality of the human environment.
                 (f) Council means the Council on Environmental Quality established
                by title II of the Act.
                [[Page 43375]]
                 (g) Effects or impacts means changes to the human environment from
                the proposed action or alternatives that are reasonably foreseeable and
                have a reasonably close causal relationship to the proposed action or
                alternatives, including those effects that occur at the same time and
                place as the proposed action or alternatives and may include effects
                that are later in time or farther removed in distance from the proposed
                action or alternatives.
                 (1) Effects include ecological (such as the effects on natural
                resources and on the components, structures, and functioning of
                affected ecosystems), aesthetic, historic, cultural, economic (such as
                the effects on employment), social, or health effects. Effects may also
                include those resulting from actions that may have both beneficial and
                detrimental effects, even if on balance the agency believes that the
                effect will be beneficial.
                 (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
                its limited statutory authority or would occur regardless of the
                proposed action.
                 (3) An agency's analysis of effects shall be consistent with this
                paragraph (g). Cumulative impact, defined in 40 CFR 1508.7 (1978), is
                repealed.
                 (h) Environmental assessment means a concise public document
                prepared by a Federal agency to aid an agency's compliance with the Act
                and support its determination of whether to prepare an environmental
                impact statement or a finding of no significant impact, as provided in
                Sec. 1501.6 of this chapter.
                 (i) Environmental document means an environmental assessment,
                environmental impact statement, finding of no significant impact, or
                notice of intent.
                 (j) Environmental impact statement means a detailed written
                statement as required by section 102(2)(C) of NEPA.
                 (k) Federal agency means all agencies of the Federal Government. It
                does not mean the Congress, the Judiciary, or the President, including
                the performance of staff functions for the President in his Executive
                Office. For the purposes of the regulations in this subchapter, Federal
                agency also includes States, units of general local government, and
                Tribal governments assuming NEPA responsibilities from a Federal agency
                pursuant to statute.
                 (l) Finding of no significant impact means a document by a Federal
                agency briefly presenting the reasons why an action, not otherwise
                categorically excluded (Sec. 1501.4 of this chapter), will not have a
                significant effect on the human environment and for which an
                environmental impact statement therefore will not be prepared.
                 (m) Human environment means comprehensively the natural and
                physical environment and the relationship of present and future
                generations of Americans with that environment. (See also the
                definition of ``effects'' in paragraph (g) of this section.)
                 (n) Jurisdiction by law means agency authority to approve, veto, or
                finance all or part of the proposal.
                 (o) Lead agency means the agency or agencies, in the case of joint
                lead agencies, preparing or having taken primary responsibility for
                preparing the environmental impact statement.
                 (p) Legislation means a bill or legislative proposal to Congress
                developed by a Federal agency, but does not include requests for
                appropriations or legislation recommended by the President.
                 (q) Major Federal action or action means an activity or decision
                subject to Federal control and responsibility subject to the following:
                 (1) Major Federal action does not include the following activities
                or decisions:
                 (i) Extraterritorial activities or decisions, which means agency
                activities or decisions with effects located entirely outside of the
                jurisdiction of the United States;
                 (ii) Activities or decisions that are non-discretionary and made in
                accordance with the agency's statutory authority;
                 (iii) Activities or decisions that do not result in final agency
                action under the Administrative Procedure Act or other statute that
                also includes a finality requirement;
                 (iv) Judicial or administrative civil or criminal enforcement
                actions;
                 (v) Funding assistance solely in the form of general revenue
                sharing funds with no Federal agency control over the subsequent use of
                such funds;
                 (vi) Non-Federal projects with minimal Federal funding or minimal
                Federal involvement where the agency does not exercise sufficient
                control and responsibility over the outcome of the project; and
                 (vii) Loans, loan guarantees, or other forms of financial
                assistance where the Federal agency does not exercise sufficient
                control and responsibility over the effects of such assistance (for
                example, action does not include farm ownership and operating loan
                guarantees by the Farm Service Agency pursuant to 7 U.S.C. 1925 and
                1941 through 1949 and business loan guarantees by the Small Business
                Administration pursuant to 15 U.S.C. 636(a), 636(m), and 695 through
                697g).
                 (2) Major Federal actions may include new and continuing
                activities, including projects and programs entirely or partly
                financed, assisted, conducted, regulated, or approved by Federal
                agencies; new or revised agency rules, regulations, plans, policies, or
                procedures; and legislative proposals (Sec. 1506.8 of this chapter).
                 (3) Major Federal actions tend to fall within one of the following
                categories:
                 (i) Adoption of official policy, such as rules, regulations, and
                interpretations adopted under the Administrative Procedure Act, 5
                U.S.C. 551 et seq. or other statutes; implementation of treaties and
                international conventions or agreements, including those implemented
                pursuant to statute or regulation; formal documents establishing an
                agency's policies which will result in or substantially alter agency
                programs.
                 (ii) Adoption of formal plans, such as official documents prepared
                or approved by Federal agencies, which prescribe alternative uses of
                Federal resources, upon which future agency actions will be based.
                 (iii) Adoption of programs, such as a group of concerted actions to
                implement a specific policy or plan; systematic and connected agency
                decisions allocating agency resources to implement a specific statutory
                program or executive directive.
                 (iv) Approval of specific projects, such as construction or
                management activities located in a defined geographic area. Projects
                include actions approved by permit or other regulatory decision as well
                as Federal and federally assisted activities.
                 (r) Matter includes for purposes of part 1504 of this chapter:
                 (1) With respect to the Environmental Protection Agency, any
                proposed legislation, project, action or regulation as those terms are
                used in section 309(a) of the Clean Air Act (42 U.S.C. 7609).
                 (2) With respect to all other agencies, any proposed major Federal
                action to which section 102(2)(C) of NEPA applies.
                 (s) 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 adoption of any mitigation. Mitigation
                includes:
                [[Page 43376]]
                 (1) Avoiding the impact altogether by not taking a certain action
                or parts of an action.
                 (2) Minimizing impacts 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.
                 (t) NEPA process means all measures necessary for compliance with
                the requirements of section 2 and title I of NEPA.
                 (u) Notice of intent means a public notice that an agency will
                prepare and consider an environmental impact statement.
                 (v) Page means 500 words and does not include explanatory maps,
                diagrams, graphs, tables, and other means of graphically displaying
                quantitative or geospatial information.
                 (w) Participating agency means a Federal, State, Tribal, or local
                agency participating in an environmental review or authorization of an
                action.
                 (x) Proposal means a proposed action at a stage when an agency has
                a goal, is actively preparing to make a decision on one or more
                alternative means of accomplishing that goal, and can meaningfully
                evaluate its effects. A proposal may exist in fact as well as by agency
                declaration that one exists.
                 (y) Publish and publication mean methods found by the agency to
                efficiently and effectively make environmental documents and
                information available for review by interested persons, including
                electronic publication, and adopted by agency NEPA procedures pursuant
                to Sec. 1507.3 of this chapter.
                 (z) Reasonable alternatives means 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 applicant.
                 (aa) Reasonably foreseeable means sufficiently likely to occur such
                that a person of ordinary prudence would take it into account in
                reaching a decision.
                 (bb) Referring agency means the Federal agency that has referred
                any matter to the Council after a determination that the matter is
                unsatisfactory from the standpoint of public health or welfare or
                environmental quality.
                 (cc) Scope consists of the range of actions, alternatives, and
                impacts to be considered in an environmental impact statement. The
                scope of an individual statement may depend on its relationships to
                other statements (Sec. 1501.11 of this chapter).
                 (dd) Senior agency official means an official of assistant
                secretary rank or higher (or equivalent) that is designated for overall
                agency NEPA compliance, including resolving implementation issues.
                 (ee) Special expertise means statutory responsibility, agency
                mission, or related program experience.
                 (ff) 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 discussions and concentrating
                solely on the issues specific to the statement subsequently prepared.
                Sec. 1508.2 [Reserved]
                PARTS 1515 THROUGH 1518 [DESIGNATED AS SUBCHAPTER B]
                0
                11. Designate parts 1515 through 1518 as subchapter B and add a heading
                for newly designated subchapter B to read as follows:
                Subchapter B--Administrative Procedures and Operations
                [FR Doc. 2020-15179 Filed 7-15-20; 4:15 pm]
                BILLING CODE 3225-F0-P
                

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