StatA

EPA and Department of Justice

§ 1400.13

and civil liability as provided in 42
U.S.C. 7413.
§ 1400.11 Limitation on dissemination
to State and local government officials.
Except as authorized by this part and
by 42 U.S.C. 7412(r)(7)(H)(v)(III), Federal, State, and local government officials, and qualified researchers are prohibited from disseminating OCA information to State and local government
officials. Violation of this provision
subjects the violator to civil liability
as provided in 42 U.S.C. 7413.
§ 1400.12

Qualified researchers.

erowe on DSK5CLS3C1PROD with CFR

The Administrator is authorized to
provide OCA information, including fa-

cility identification, to qualified researchers pursuant to a system developed and implemented under 42 U.S.C.
7412(r)(7)(H)(vii), in consultation with
the Attorney General.
§ 1400.13 Read-only database.
The Administrator is authorized to
establish, pursuant to 42 U.S.C.
7412(r)(7)(H)(viii), an information technology system that makes available to
the public off-site consequence analysis
information by means of a central
database under the control of the Federal government that contains information that users may read, but that
provides no means by which an electronic or mechanical copy of the information may be made.

831

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00841

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

erowe on DSK5CLS3C1PROD with CFR

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00842

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

CHAPTER V—COUNCIL ON ENVIRONMENTAL
QUALITY
Part

1500
1501
1502
1503
1504
1505
1506
1507
1508
1515
1516
1517

erowe on DSK5CLS3C1PROD with CFR

1518

Page

Purpose, policy, and mandate .................................
NEPA and agency planning .....................................
Environmental impact statement ...........................
Commenting ............................................................
Predecision referrals to the Council of proposed
Federal actions determined to be environmentally unsatisfactory .......................................
NEPA and agency decisionmaking ..........................
Other requirements of NEPA ..................................
Agency compliance .................................................
Terminology and index ...........................................
Index to Parts 1500 Through 1508 .............................
Freedom of Information Act procedures .................
Privacy Act implementation ...................................
Public meeting procedures of the Council on Environmental Quality ...............................................
Office of Environmental Quality Management
Fund .....................................................................

833

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00843

Fmt 8008

Sfmt 8008

Y:\SGML\223176.XXX

223176

835
837
841
848
849
851
852
857
859
864
865
872
874
878

erowe on DSK5CLS3C1PROD with CFR

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00844

Fmt 8008

Sfmt 8008

Y:\SGML\223176.XXX

223176

vironmental consequences, and take
actions that protect, restore, and enhance the environment. These regulations provide the direction to achieve
this purpose.

PART 1500—PURPOSE, POLICY,
AND MANDATE
Sec.
1500.1 Purpose.
1500.2 Policy.
1500.3 Mandate.
1500.4 Reducing paperwork.
1500.5 Reducing delay.
1500.6 Agency authority.

§ 1500.2

AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609) and E.O.
11514, Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).

erowe on DSK5CLS3C1PROD with CFR

SOURCE: 43 FR 55990, Nov. 28, 1978, unless
otherwise noted.

§ 1500.1 Purpose.
(a) The National Environmental Policy Act (NEPA) is our basic national
charter for protection of the environment. It establishes policy, sets goals
(section 101), and provides means (section 102) for carrying out the policy.
Section 102(2) contains ‘‘action-forcing’’ provisions to make sure that federal agencies act according to the letter and spirit of the Act. The regulations that follow implement section
102(2). Their purpose is to tell federal
agencies what they must do to comply
with the procedures and achieve the
goals of the Act. The President, the
federal agencies, and the courts share
responsibility for enforcing the Act so
as to achieve the substantive requirements of section 101.
(b) NEPA procedures must insure
that environmental information is
available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate
scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are truly
significant to the action in question,
rather than amassing needless detail.
(c) Ultimately, of course, it is not
better documents but better decisions
that count. NEPA’s purpose is not to
generate paperwork—even excellent
paperwork—but to foster excellent action. The NEPA process is intended to
help public officials make decisions
that are based on understanding of en-

Policy.

Federal agencies shall to the fullest
extent possible:
(a) Interpret and administer the policies, regulations, and public laws of the
United States in accordance with the
policies set forth in the Act and in
these regulations.
(b) Implement procedures to make
the NEPA process more useful to decisionmakers and the public; to reduce
paperwork and the accumulation of extraneous background data; and to emphasize real environmental issues and
alternatives. Environmental impact
statements shall be concise, clear, and
to the point, and shall be supported by
evidence that agencies have made the
necessary environmental analyses.
(c) Integrate the requirements of
NEPA with other planning and environmental review procedures required
by law or by agency practice so that all
such procedures run concurrently rather than consecutively.
(d) Encourage and facilitate public
involvement in decisions which affect
the quality of the human environment.
(e) Use the NEPA process to identify
and assess the reasonable alternatives
to proposed actions that will avoid or
minimize adverse effects of these actions upon the quality of the human
environment.
(f) Use all practicable means, consistent with the requirements of the
Act and other essential considerations
of national policy, to restore and enhance the quality of the human environment and avoid or minimize any
possible adverse effects of their actions
upon the quality of the human environment.
§ 1500.3

Mandate.

Parts 1500 through 1508 of this title
provide regulations 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)

835

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00845

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1500.4

40 CFR Ch. V (7–1–11 Edition)

except where compliance would be inconsistent with other statutory requirements. These regulations are
issued pursuant to NEPA, the Environmental Quality Improvement Act of
1970, as amended (42 U.S.C. 4371 et seq.)
section 309 of the Clean Air Act, as
amended (42 U.S.C. 7609) and Executive
Order 11514, Protection and Enhancement of Environmental Quality (March
5, 1970, as amended by Executive Order
11991, May 24, 1977). These regulations,
unlike the predecessor guidelines, are
not confined to sec. 102(2)(C) (environmental impact statements). The regulations apply to the whole of section
102(2). The provisions of the Act and of
these regulations must be read together as a whole in order to comply
with the spirit and letter of the law. It
is the Council’s intention that judicial
review of agency compliance with
these regulations not occur before an
agency has filed the final environmental impact statement, or has made
a final finding of no significant impact
(when such a finding will result in action affecting the environment), or
takes action that will result in irreparable injury. Furthermore, it is the
Council’s intention that any trivial
violation of these regulations not give
rise to any independent cause of action.

erowe on DSK5CLS3C1PROD with CFR

§ 1500.4

Reducing paperwork.

Agencies shall reduce excessive paperwork by:
(a) Reducing the length of environmental impact statements (§ 1502.2(c)),
by means such as setting appropriate
page limits (§§ 1501.7(b)(1) and 1502.7).
(b) Preparing analytic rather than
encyclopedic environmental impact
statements (§ 1502.2(a)).
(c) Discussing only briefly issues
other than significant ones (§ 1502.2(b)).
(d) Writing environmental impact
statements in plain language (§ 1502.8).
(e) Following a clear format for environmental
impact
statements
(§ 1502.10).
(f) Emphasizing the portions of the
environmental impact statement that
are useful to decisionmakers and the
public (§§ 1502.14 and 1502.15) and reducing emphasis on background material
(§ 1502.16).

(g) 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 (§ 1501.7).
(h) Summarizing the environmental
impact statement (§ 1502.12) and circulating the summary instead of the entire environmental impact statement if
the latter is unusually long (§ 1502.19).
(i) Using program, 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 (§§ 1502.4 and 1502.20).
(j)
Incorporating
by
reference
(§ 1502.21).
(k) Integrating NEPA requirements
with other environmental review and
consultation requirements (§ 1502.25).
(l) Requiring comments to be as specific as possible (§ 1503.3).
(m) Attaching and circulating only
changes to the draft environmental impact statement, rather than rewriting
and circulating the entire statement
when changes are minor (§ 1503.4(c)).
(n) Eliminating duplication with
State and local procedures, by providing for joint preparation (§ 1506.2),
and with other Federal procedures, by
providing that an agency may adopt
appropriate environmental documents
prepared by another agency (§ 1506.3).
(o) Combining environmental documents with other documents (§ 1506.4).
(p) Using categorical exclusions to
define categories of actions which do
not individually or cumulatively have
a significant effect on the human environment and which are therefore exempt from requirements to prepare an
environmental
impact
statement
(§ 1508.4).
(q) Using a finding of no significant
impact when an action not otherwise
excluded will not have a significant effect on the human environment and is
therefore exempt from requirements to
prepare an environmental impact
statement (§ 1508.13).
[43 FR 55990, Nov. 29, 1978; 44 FR 873, Jan. 3,
1979]

§ 1500.5 Reducing delay.
Agencies shall reduce delay by:

836

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00846

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1501.1

erowe on DSK5CLS3C1PROD with CFR

(a) Integrating the NEPA process
into early planning (§ 1501.2).
(b) Emphasizing interagency cooperation before the environmental impact
statement is prepared, rather than submission of adversary comments on a
completed document (§ 1501.6).
(c) Insuring the swift and fair resolution of lead agency disputes (§ 1501.5).
(d) Using the scoping process for an
early identification of what are and
what are not the real issues (§ 1501.7).
(e) Establishing appropriate time
limits for the environmental impact
statement process (§§ 1501.7(b)(2) and
1501.8).
(f) Preparing environmental impact
statements early in the process
(§ 1502.5).
(g) Integrating NEPA requirements
with other environmental review and
consultation requirements (§ 1502.25).
(h) Eliminating duplication with
State and local procedures by providing for joint preparation (§ 1506.2)
and with other Federal procedures by
providing that an agency may adopt
appropriate environmental documents
prepared by another agency (§ 1506.3).
(i) Combining environmental documents with other documents (§ 1506.4).
(j) Using accelerated procedures for
proposals for legislation (§ 1506.8).
(k) Using categorical exclusions to
define categories of actions which do
not individually or cumulatively have
a significant effect on the human environment (§ 1508.4) and which are therefore exempt from requirements to prepare an environmental impact statement.
(l) Using a finding of no significant
impact when an action not otherwise
excluded will not have a significant effect on the human environment
(§ 1508.13) and is therefore exempt from
requirements to prepare an environmental impact statement.
§ 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 traditional policies and missions in the light of the Act’s national
environmental objectives. Agencies
shall review their policies, procedures,
and regulations accordingly and revise
them as necessary to insure full com-

pliance with the purposes and provisions of the Act. The phrase ‘‘to the
fullest extent possible’’ in section 102
means that each agency of the Federal
Government shall comply with that
section unless existing law applicable
to the agency’s operations expressly
prohibits or makes compliance impossible.

PART 1501—NEPA AND AGENCY
PLANNING
Sec.
1501.1 Purpose.
1501.2 Apply NEPA early in the process.
1501.3 When to prepare an environmental
assessment.
1501.4 Whether to prepare an environmental
impact statement.
1501.5 Lead agencies.
1501.6 Cooperating agencies.
1501.7 Scoping.
1501.8 Time limits.
AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609, and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).
SOURCE: 43 FR 55992, Nov. 29, 1978, unless
otherwise noted.

§ 1501.1

Purpose.

The purposes of this part include:
(a) Integrating the NEPA process
into early planning to insure appropriate consideration of NEPA’s policies
and to eliminate delay.
(b) Emphasizing cooperative consultation among agencies before the
environmental impact statement is
prepared rather than submission of adversary comments on a completed document.
(c) Providing for the swift and fair
resolution of lead agency disputes.
(d) Identifying at an early stage the
significant environmental issues deserving of study and deemphasizing insignificant issues, narrowing the scope
of the environmental impact statement
accordingly.
(e) Providing a mechanism for putting appropriate time limits on the environmental impact statement process.

837

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00847

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1501.2

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

§ 1501.2 Apply NEPA early in the process.
Agencies shall integrate the NEPA
process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in
the process, and to head off potential
conflicts. Each agency shall:
(a) Comply with the mandate of section 102(2)(A) to ‘‘utilize a systematic,
interdisciplinary approach which will
insure the integrated use of the natural
and social sciences and the environmental design arts in planning and in
decisionmaking which may have an impact on man’s environment,’’ as specified by § 1507.2.
(b) Identify environmental effects
and values in adequate detail so they
can be compared to economic and technical analyses. Environmental documents and appropriate analyses shall
be circulated and reviewed at the same
time as other planning documents.
(c) Study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of available
resources as provided by section
102(2)(E) of the Act.
(d) Provide for cases where actions
are planned by private applicants or
other non-Federal entities before Federal involvement so that:
(1) Policies or designated staff are
available to advise potential applicants
of studies or other information
foreseeably required for later Federal
action.
(2) The Federal agency consults early
with appropriate State and local agencies and Indian tribes and with interested private persons and organizations
when its own involvement is reasonably foreseeable.
(3) The Federal agency commences
its NEPA process at the earliest possible time.
§ 1501.3 When to prepare an environmental assessment.
(a) Agencies shall prepare an environmental assessment (§ 1508.9) when necessary under the procedures adopted by
individual agencies to supplement
these regulations as described in
§ 1507.3. An assessment is not necessary

if the agency has decided to prepare an
environmental impact statement.
(b) Agencies may prepare an environmental assessment on any action at
any time in order to assist agency
planning and decisionmaking.
§ 1501.4 Whether to prepare an environmental impact statement.
In determining whether to prepare an
environmental impact statement the
Federal agency shall:
(a) Determine under its procedures
supplementing these regulations (described in § 1507.3) whether the proposal
is one which:
(1) Normally requires an environmental impact statement, or
(2) Normally does not require either
an environmental impact statement or
an environmental assessment (categorical exclusion).
(b) If the proposed action is not covered by paragraph (a) of this section,
prepare an environmental assessment
(§ 1508.9). The agency shall involve environmental agencies, applicants, and
the public, to the extent practicable, in
preparing assessments required by
§ 1508.9(a)(1).
(c) Based on the environmental assessment make its determination
whether to prepare an environmental
impact statement.
(d) Commence the scoping process
(§ 1501.7), if the agency will prepare an
environmental impact statement.
(e) Prepare a finding of no significant
impact (§ 1508.13), if the agency determines on the basis of the environmental assessment not to prepare a
statement.
(1) The agency shall make the finding
of no significant impact available to
the affected public as specified in
§ 1506.6.
(2) In certain limited circumstances,
which the agency may cover in its procedures under § 1507.3, the agency shall
make the finding of no significant impact available for public review (including State and areawide clearinghouses) for 30 days before the agency
makes its final determination whether
to prepare an environmental impact
statement and before the action may
begin. The circumstances are:

838

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00848

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1501.6

erowe on DSK5CLS3C1PROD with CFR

(i) The proposed action is, or is closely similar to, one which normally requires the preparation of an environmental impact statement under the
procedures adopted by the agency pursuant to § 1507.3, or
(ii) The nature of the proposed action
is one without precedent.
§ 1501.5 Lead agencies.
(a) A lead agency shall supervise the
preparation of an environmental impact statement 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, or local agencies,
including at least one Federal agency,
may act as joint lead agencies to prepare an environmental impact statement (§ 1506.2).
(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 shall be the lead agency and
which shall 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/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
or local agency or private person substantially affected by the absence of
lead agency designation, may make a
written request to 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 within 45 days in a lead agency

designation, 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.
(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) A response may be filed by any potential lead agency concerned within 20
days after a request is filed with the
Council. The Council shall determine
as soon as possible but not later than
20 days after receiving the request and
all responses to it which Federal agency shall be the lead agency and which
other Federal agencies shall be cooperating agencies.
[43 FR 55992, Nov. 29, 1978; 44 FR 873, Jan. 3,
1979]

§ 1501.6

Cooperating agencies.

The purpose of this section is to emphasize agency cooperation early in the
NEPA process. Upon request of the lead
agency, any other Federal agency
which has jurisdiction by law shall be a
cooperating agency. In addition any
other Federal agency which has special
expertise with respect to any environmental issue, which should be addressed in the statement may be a cooperating agency upon request of the
lead agency. An agency may request
the lead agency to designate it a cooperating agency.
(a) The lead agency shall:
(1) Request the participation of each
cooperating agency in the NEPA process at the earliest possible time.
(2) Use the environmental analysis
and proposals of cooperating agencies
with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility
as lead agency.
(3) Meet with a cooperating agency at
the latter’s request.
(b) Each cooperating agency shall:
(1) Participate in the NEPA process
at the earliest possible time.

839

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00849

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1501.7

40 CFR Ch. V (7–1–11 Edition)

(2) Participate in the scoping process
(described below in § 1501.7).
(3) Assume on request of the lead
agency responsibility for developing information and preparing environmental analyses including portions of
the environmental impact statement
concerning which the cooperating
agency has special expertise.
(4) Make available staff support at
the lead agency’s request to enhance
the latter’s interdisciplinary capability.
(5) Normally use its own funds. The
lead agency shall, to the extent available funds permit, fund those major activities or analyses it requests from cooperating agencies. Potential lead
agencies shall include such funding requirements in their budget requests.
(c) A cooperating agency may in response to a lead agency’s request for
assistance in preparing the environmental impact statement (described in
paragraph (b)(3), (4), or (5) of this section) 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. A copy
of this reply shall be submitted to the
Council.

erowe on DSK5CLS3C1PROD with CFR

§ 1501.7

Scoping.

There shall be an early and open
process for determining the scope of
issues to be addressed and for identifying the significant issues related to a
proposed action. This process shall be
termed scoping. As soon as practicable
after its decision to prepare an environmental impact statement and before the scoping process the lead agency shall publish a notice of intent
(§ 1508.22) in the FEDERAL REGISTER except as provided in § 1507.3(e).
(a) As part of the scoping process the
lead agency shall:
(1) Invite the participation of affected Federal, State, and local agencies, any affected Indian tribe, the proponent of the action, and other interested persons (including those who
might not be in accord with the action
on environmental grounds), unless
there is a limited exception under
§ 1507.3(c). An agency may give notice
in accordance with § 1506.6.

(2) Determine the scope (§ 1508.25) and
the significant issues to be analyzed in
depth in the environmental impact
statement.
(3) Identify and eliminate from detailed study the issues which are not
significant or which have been covered
by
prior
environmental
review
(§ 1506.3), 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.
(4) Allocate assignments for preparation of the environmental impact
statement among the lead and cooperating agencies, with the lead agency
retaining responsibility for the statement.
(5) Indicate any public environmental
assessments and other environmental
impact statements which are being or
will be prepared that are related to but
are not part of the scope of the impact
statement under consideration.
(6) Identify other environmental review and consultation requirements so
the lead and cooperating agencies may
prepare other required analyses and
studies concurrently with, and integrated with, the environmental impact
statement as provided in § 1502.25.
(7) Indicate the relationship between
the timing of the preparation of environmental analyses and the agency’s
tentative planning and decisionmaking
schedule.
(b) As part of the scoping process the
lead agency may:
(1) Set page limits on environmental
documents (§ 1502.7).
(2) Set time limits (§ 1501.8).
(3) Adopt procedures under § 1507.3 to
combine its environmental assessment
process with its scoping process.
(4) Hold an early scoping meeting or
meetings which may be integrated with
any other early planning meeting the
agency has. Such a scoping meeting
will often be appropriate when the impacts of a particular action are confined to specific sites.
(c) An agency shall revise the determinations made under paragraphs (a)
and (b) of this section if substantial
changes are made later in the proposed

840

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00850

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1502.1

action, or if significant new circumstances or information arise which
bear on the proposal or its impacts.

erowe on DSK5CLS3C1PROD with CFR

§ 1501.8

Time limits.

Although the Council has decided
that prescribed universal time limits
for the entire NEPA process are too inflexible, Federal agencies are encouraged to set time limits appropriate to
individual actions (consistent with the
time intervals required by § 1506.10).
When multiple agencies are involved
the reference to agency below means
lead agency.
(a) The agency shall set time limits
if an applicant for the proposed action
requests them: Provided, That the limits are consistent with the purposes of
NEPA and other essential considerations of national policy.
(b) The agency may:
(1) Consider the following factors in
determining time limits:
(i) Potential for environmental harm.
(ii) Size of the proposed action.
(iii) State of the art of analytic techniques.
(iv) Degree of public need for the proposed action, including the consequences of delay.
(v) Number of persons and agencies
affected.
(vi) Degree to which relevant information is known and if not known the
time required for obtaining it.
(vii) Degree to which the action is
controversial.
(viii) Other time limits imposed on
the agency by law, regulations, or executive order.
(2) Set overall time limits or limits
for each constituent part of the NEPA
process, which may include:
(i) Decision on whether to prepare an
environmental impact statement (if
not already decided).
(ii) Determination of the scope of the
environmental impact statement.
(iii) Preparation of the draft environmental impact statement.
(iv) Review of any comments on the
draft environmental impact statement
from the public and agencies.
(v) Preparation of the final environmental impact statement.
(vi) Review of any comments on the
final environmental impact statement.

(vii) Decision on the action based in
part on the environmental impact
statement.
(3) Designate a person (such as the
project manager or a person in the
agency’s office with NEPA responsibilities) to expedite the NEPA process.
(c) State or local agencies or members of the public may request a Federal Agency to set time limits.

PART 1502—ENVIRONMENTAL
IMPACT STATEMENT
Sec.
1502.1 Purpose.
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 sheet.
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 List of preparers.
1502.18 Appendix.
1502.19 Circulation of the environmental impact statement.
1502.20 Tiering.
1502.21 Incorporation by reference.
1502.22 Incomplete or unavailable information.
1502.23 Cost-benefit analysis.
1502.24 Methodology and scientific accuracy.
1502.25 Environmental review and consultation requirements.
AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).
SOURCE: 43 FR 55994, Nov. 29, 1978, unless
otherwise noted.

§ 1502.1 Purpose.
The primary purpose of an environmental impact statement is to serve as
an action-forcing device to insure that
the policies and goals defined in the

841

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00851

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1502.2

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

Act are infused into the ongoing programs and actions of the Federal Government. It shall provide full and fair
discussion of significant environmental
impacts and shall inform decisionmakers and the public of the reasonable alternatives which 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 more than a disclosure
document. It shall be used by Federal
officials in conjunction with other relevant material to plan actions and
make decisions.
§ 1502.2 Implementation.
To achieve the purposes set forth in
§ 1502.1 agencies shall prepare environmental impact statements in the following manner:
(a) Environmental impact statements
shall be analytic rather than encyclopedic.
(b) Impacts shall be discussed 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 kept concise and shall be no
longer than absolutely necessary to
comply with NEPA and with these regulations. Length should vary first with
potential environmental problems and
then with 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 the Act and
other environmental laws and policies.
(e) The range of alternatives discussed in environmental impact statements shall encompass those to be considered by the ultimate agency decisionmaker.
(f) Agencies shall not commit resources prejudicing selection of alter-

natives before making a final decision
(§ 1506.1).
(g) Environmental impact statements
shall serve as the means of assessing
the environmental impact of proposed
agency actions, rather than justifying
decisions already made.
§ 1502.3 Statutory
statements.

requirements

As required by sec. 102(2)(C) of NEPA
environmental
impact
statements
(§ 1508.11) are to be included in every
recommendation or report.
On proposals (§ 1508.23).
For legislation and (§ 1508.17).
Other
major
Federal
actions
(§ 1508.18).
Significantly (§ 1508.27).
Affecting (§§ 1508.3, 1508.8).
The quality of the human environment (§ 1508.14).
§ 1502.4 Major Federal actions requiring the preparation of environmental impact statements.
(a) Agencies shall make sure the proposal which is the subject of an environmental impact statement is properly defined. Agencies shall use the criteria for scope (§ 1508.25) to determine
which proposal(s) shall be the subject
of a particular statement. Proposals or
parts of proposals which are related to
each other closely enough to be, in effect, a single course of action shall be
evaluated in a single impact statement.
(b) Environmental impact statements
may be prepared, and are sometimes
required, for broad Federal actions
such as the adoption of new agency
programs or regulations (§ 1508.18).
Agencies shall prepare statements on
broad actions so that they are relevant
to policy and are timed to coincide
with meaningful points in agency planning and decisionmaking.
(c) When preparing statements on
broad actions (including proposals by
more than one agency), agencies may
find it useful to evaluate the proposal(s) in one of the following ways:
(1) Geographically, including actions
occurring in the same general location,
such as body of water, region, or metropolitan area.
(2) Generically, including actions
which have relevant similarities, such

842

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00852

Fmt 8010

for

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1502.9

erowe on DSK5CLS3C1PROD with CFR

as common timing, impacts, alternatives, methods of implementation,
media, or subject matter.
(3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the
human environment. Statements shall
be prepared on such programs and shall
be available before the program has
reached a stage of investment or commitment to implementation likely to
determine subsequent development or
restrict later alternatives.
(d) Agencies shall as appropriate employ scoping (§ 1501.7), tiering (§ 1502.20),
and other methods listed in §§ 1500.4
and 1500.5 to relate broad and narrow
actions and to avoid duplication and
delay.
§ 1502.5 Timing.
An agency shall commence preparation of an environmental impact statement as close as possible to the time
the agency is developing or is presented with a proposal (§ 1508.23) 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 practically as an important contribution to the decisionmaking process and will not be used to
rationalize or justify decisions already
made (§§ 1500.2(c), 1501.2, and 1502.2). For
instance:
(a) For projects directly undertaken
by Federal agencies the environmental
impact statement shall be prepared at
the feasibility analysis (go-no go) stage
and may be supplemented at a later
stage if necessary.
(b) For applications to the agency appropriate environmental assessments
or statements shall be commenced no
later than immediately after the application is received. Federal agencies are
encouraged to begin preparation of
such assessments or statements earlier, preferably jointly with applicable
State or local agencies.
(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.
§ 1502.6 Interdisciplinary preparation.
Environmental impact statements
shall be prepared using an inter-disciplinary approach which will insure
the integrated use of the natural and
social sciences and the environmental
design arts (section 102(2)(A) of the
Act). The disciplines of the preparers
shall be appropriate to the scope and
issues identified in the scoping process
(§ 1501.7).
§ 1502.7 Page limits.
The text of final environmental impact statements (e.g., paragraphs (d)
through (g) of § 1502.10) shall normally
be less than 150 pages and for proposals
of unusual scope or complexity shall
normally be less than 300 pages.
§ 1502.8 Writing.
Environmental impact statements
shall be written in plain language and
may use appropriate graphics so that
decisionmakers and the public can
readily understand them. Agencies
should employ writers of clear prose or
editors to write, review, or edit statements, which will be based upon the
analysis and supporting data from the
natural and social sciences and the environmental design arts.
§ 1502.9 Draft, final, and supplemental
statements.
Except for proposals for legislation
as provided in § 1506.8 environmental
impact statements shall be prepared in
two stages and may be supplemented.
(a) Draft environmental impact
statements shall be prepared in accordance with the scope decided upon in the
scoping process. The lead agency shall
work with the cooperating agencies
and shall obtain comments as required
in part 1503 of this chapter. The draft
statement must fulfill and satisfy to
the fullest extent possible the requirements established for final statements

843

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00853

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1502.10

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

in section 102(2)(C) of the Act. If a draft
statement is so inadequate as to preclude meaningful analysis, the agency
shall prepare and circulate a revised
draft of the appropriate portion. The
agency shall make every effort to disclose and discuss at appropriate points
in the draft statement all major points
of view on the environmental impacts
of the alternatives including the proposed action.
(b) Final environmental impact
statements shall respond to comments
as required in part 1503 of this chapter.
The agency shall discuss at appropriate
points in the final statement any responsible opposing view which was not
adequately discussed in the draft statement and shall indicate the agency’s
response to the issues raised.
(c) Agencies:
(1) Shall prepare supplements to either draft or final environmental impact statements if:
(i) The agency makes substantial
changes in 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 adopt procedures for introducing a supplement into its formal administrative record, if such a record
exists.
(4) Shall prepare, circulate, and file a
supplement to a statement in the same
fashion (exclusive of scoping) as a draft
and final statement unless alternative
procedures are approved by the Council.
§ 1502.10 Recommended format.
Agencies shall use a format for environmental impact statements which
will encourage good analysis and clear
presentation of the alternatives including the proposed action. The following
standard format for environmental impact statements should be followed unless the agency determines that there
is a compelling reason to do otherwise:
(a) Cover sheet.
(b) Summary.
(c) Table of contents.

(d) Purpose of and need for action.
(e) Alternatives including proposed
action
(sections
102(2)(C)(iii)
and
102(2)(E) of the Act).
(f) Affected environment.
(g) Environmental consequences (especially sections 102(2)(C)(i), (ii), (iv),
and (v) of the Act).
(h) List of preparers.
(i) List of Agencies, Organizations,
and persons to whom copies of the
statement are sent.
(j) Index.
(k) Appendices (if any).
If a different format is used, it shall include paragraphs (a), (b), (c), (h), (i),
and (j), of this section and shall include
the substance of paragraphs (d), (e), (f),
(g), and (k) of this section, as further
described in §§ 1502.11 through 1502.18, in
any appropriate format.
§ 1502.11 Cover sheet.
The cover sheet shall not exceed one
page. It shall 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 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 comments must
be received (computed in cooperation
with EPA under § 1506.10).
The information required by this section may be entered on Standard Form
424 (in items 4, 6, 7, 10, and 18).
§ 1502.12 Summary.
Each environmental impact statement shall contain a summary which
adequately and accurately summarizes
the statement. The summary shall
stress the major conclusions, areas of
controversy (including issues raised by
agencies and the public), and the issues
to be resolved (including the choice

844

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00854

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1502.16

among alternatives). The summary will
normally not exceed 15 pages.
§ 1502.13 Purpose and need.
The statement shall briefly specify
the underlying purpose and need to
which the agency is responding in proposing the alternatives including the
proposed action.

erowe on DSK5CLS3C1PROD with CFR

§ 1502.14 Alternatives including the
proposed action.
This section is the heart of the environmental impact statement. Based on
the information and analysis presented
in the sections on the Affected Environment (§ 1502.15) and the Environmental Consequences (§ 1502.16), it
should present the environmental impacts of the proposal and the alternatives in comparative form, thus
sharply defining the issues and providing a clear basis for choice among
options by the decisionmaker and the
public. In this section agencies shall:
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which
were eliminated from detailed study,
briefly discuss the reasons for their
having been eliminated.
(b) Devote substantial treatment to
each alternative considered in detail
including the proposed action so that
reviewers may evaluate their comparative merits.
(c) Include reasonable alternatives
not within the jurisdiction of the lead
agency.
(d) Include the alternative of no action.
(e) 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.
(f) Include appropriate mitigation
measures not already included in the
proposed action or alternatives.
§ 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. The descriptions 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.
§ 1502.16 Environmental consequences.
This section forms the scientific and
analytic basis for the comparisons
under § 1502.14. It shall consolidate the
discussions of those elements required
by sections 102(2)(C)(i), (ii), (iv), and (v)
of NEPA which are within the scope of
the statement and as much of section
102(2)(C)(iii) as is necessary to support
the comparisons. The discussion will
include the environmental impacts of
the alternatives including the proposed
action, any adverse environmental effects which cannot be avoided should
the proposal be implemented, the relationship between short-term uses of
man’s environment and the maintenance and enhancement of long-term
productivity, and any irreversible or irretrievable commitments of resources
which would be involved in the proposal should it be implemented. This
section should not duplicate discussions in § 1502.14. It shall include discussions of:
(a) Direct effects and their significance (§ 1508.8).
(b) Indirect effects and their significance (§ 1508.8).
(c) Possible conflicts between the
proposed action and the objectives of
Federal, regional, State, and local (and
in the case of a reservation, Indian
tribe) land use plans, policies and controls for the area concerned. (See
§ 1506.2(d).)
(d) The environmental effects of alternatives including the proposed action. The comparisons under § 1502.14
will be based on this discussion.
(e) Energy requirements and conservation potential of various alternatives and mitigation measures.
(f) Natural or depletable resource requirements and conservation potential
of various alternatives and mitigation
measures.

845

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00855

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1502.17

40 CFR Ch. V (7–1–11 Edition)

(g) 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.
(h) Means to mitigate adverse environmental impacts (if not fully covered
under § 1502.14(f)).
[43 FR 55994, Nov. 29, 1978; 44 FR 873, Jan. 3,
1979]

§ 1502.17 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 (§§ 1502.6 and
1502.8). Where possible the persons who
are responsible for a particular analysis, including analyses in background
papers, shall be identified. Normally
the list will not exceed two pages.

erowe on DSK5CLS3C1PROD with CFR

§ 1502.18 Appendix.
If an agency prepares an appendix to
an environmental impact statement
the appendix shall:
(a) Consist of material prepared in
connection with an environmental impact statement (as distinct from material which is not so prepared and which
is incorporated by reference (§ 1502.21)).
(b) Normally consist of material
which substantiates any analysis fundamental to the impact statement.
(c) Normally be analytic and relevant
to the decision to be made.
(d) Be circulated with the environmental impact statement or be readily
available on request.
§ 1502.19 Circulation of the environmental impact statement.
Agencies shall circulate the entire
draft and final environmental impact
statements except for certain appendices as provided in § 1502.18(d) and unchanged statements as provided in
§ 1503.4(c). However, if the statement is
unusually long, the agency may circulate the summary instead, except
that the entire statement shall be furnished to:
(a) Any Federal agency which has jurisdiction by law or special expertise

with respect to any environmental impact involved and any appropriate Federal, State 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 which submitted substantive comments on the
draft.
If the agency circulates the summary
and thereafter receives a timely request for the entire statement and for
additional time to comment, the time
for that requestor only shall be extended by at least 15 days beyond the
minimum period.
§ 1502.20

Tiering.

Agencies are encouraged to tier their
environmental impact statements to
eliminate repetitive discussions of the
same issues and to focus on the actual
issues ripe for decision at each level of
environmental review (§ 1508.28). Whenever a broad environmental impact
statement has been prepared (such as a
program or policy statement) and a
subsequent statement or environmental assessment is then prepared on
an action included within the entire
program or policy (such as a site specific action) the subsequent statement
or environmental assessment need only
summarize the issues discussed in the
broader statement and incorporate discussions from the broader statement
by reference and shall concentrate on
the issues specific to the subsequent
action. The subsequent document shall
state where the earlier document is
available. Tiering may also be appropriate for different stages of actions.
(Section 1508.28).
§ 1502.21

Incorporation by reference.

Agencies shall incorporate material
into an environmental impact statement by reference when the effect will
be to cut down on bulk without impeding agency and public review of the action. The incorporated material shall
be cited in the statement and its content briefly described. No material

846

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00856

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1502.24

may be incorporated by reference unless it is reasonably available for inspection by potentially interested persons within the time allowed for comment. Material based on proprietary
data which is itself not available for review and comment shall not be incorporated by reference.

erowe on DSK5CLS3C1PROD with CFR

§ 1502.22 Incomplete or unavailable information.
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 always
make clear that such information is
lacking.
(a) If the incomplete 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 exorbitant, the agency shall include the information in the environmental impact statement.
(b) If the information relevant to reasonably foreseeable significant adverse
impacts cannot be obtained because
the overall costs of obtaining it are exorbitant 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 which 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. For the purposes of this section, ‘‘reasonably foreseeable’’ includes impacts which 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.

(c) The amended regulation will be
applicable to all environmental impact
statements for which a Notice of Intent
(40 CFR 1508.22) is published in the FEDERAL REGISTER on or after May 27, 1986.
For environmental impact statements
in progress, agencies may choose to
comply with the requirements of either
the original or amended regulation.
[51 FR 15625, Apr. 25, 1986]

§ 1502.23

Cost-benefit analysis.

If a cost-benefit analysis relevant to
the choice among environmentally different alternatives is being considered
for the proposed action, it shall be incorporated by reference or appended to
the statement as an aid in evaluating
the environmental consequences. To
assess the adequacy of compliance with
section 102(2)(B) of the Act the statement shall, when a cost-benefit analysis is prepared, discuss the relationship between that analysis and any
analyses of unquantified environmental impacts, values, and amenities.
For purposes of complying with the
Act, the weighing of the merits and
drawbacks of the various alternatives
need not be displayed in a monetary
cost-benefit analysis and should not be
when there are important qualitative
considerations. In any event, an environmental impact statement should at
least indicate those considerations, including factors not related to environmental quality, which are likely to be
relevant and important to a decision.
§ 1502.24 Methodology
accuracy.

and

Agencies shall insure the professional
integrity, including scientific integrity, of the discussions and analyses in
environmental
impact
statements.
They shall identify any methodologies
used and shall make explicit reference
by footnote to the scientific and other
sources relied upon for conclusions in
the statement. An agency may place
discussion of methodology in an appendix.

847

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00857

Fmt 8010

scientific

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1502.25

40 CFR Ch. V (7–1–11 Edition)

§ 1502.25 Environmental review
consultation requirements.

and

(a) To the fullest extent possible,
agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analyses and related
surveys and studies required by the
Fish and Wildlife Coordination Act (16
U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (16 U.S.C. 470
et seq.), the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.), and other
environmental review laws and executive orders.
(b) The draft environmental impact
statement shall list all Federal permits, licenses, and other entitlements
which must be obtained in implementing the proposal. If it is uncertain
whether a Federal permit, license, or
other entitlement is necessary, the
draft environmental impact statement
shall so indicate.

PART 1503—COMMENTING
Sec.
1503.1
1503.2
1503.3
1503.4

§ 1503.2
Inviting comments.
Duty to comment.
Specificity of comments.
Response to comments.

AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).
SOURCE: 43 FR 55997, Nov. 29, 1978, unless
otherwise noted.

§ 1503.1

erowe on DSK5CLS3C1PROD with CFR

(iii) Any agency which has requested
that it receive statements on actions of
the kind proposed.
Office of Management and Budget Circular A–95 (Revised), through its system of clearinghouses, provides a
means of securing the views of State
and local environmental agencies. The
clearinghouses may be used, by mutual
agreement of the lead agency and the
clearinghouse, for securing State and
local reviews of the draft environmental impact statements.
(3) Request comments from the applicant, if any.
(4) Request comments from the public, affirmatively soliciting comments
from those persons or organizations
who may be interested or affected.
(b) An agency may request comments
on a final environmental impact statement before the decision is finally
made. In any case other agencies or
persons may make comments before
the final decision unless a different
time is provided under § 1506.10.

Inviting comments.

(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 which has jurisdiction by
law or special expertise with respect to
any environmental impact involved or
which is authorized to develop and enforce environmental standards.
(2) Request the comments of:
(i) Appropriate State and local agencies which are authorized to develop
and enforce environmental standards;
(ii) Indian tribes, when the effects
may be on a reservation; and

Duty to comment.

Federal agencies with jurisdiction by
law or special expertise with respect to
any environmental impact involved
and agencies which are authorized to
develop and enforce environmental
standards shall comment on statements within their jurisdiction, expertise, or authority. Agencies shall comment within the time period specified
for comment in § 1506.10. A Federal
agency may reply that it has no comment. If a cooperating agency is satisfied that its views are adequately reflected in the environmental impact
statement, it should reply that it has
no comment.
§ 1503.3

Specificity of comments.

(a) Comments on an environmental
impact statement or on a proposed action shall be as specific as possible and
may address either the adequacy of the
statement or the merits of the alternatives discussed or both.
(b) When a commenting agency criticizes a lead agency’s predictive methodology,
the
commenting
agency
should describe the alternative methodology which it prefers and why.

848

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00858

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1504.1

erowe on DSK5CLS3C1PROD with CFR

(c) 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 entitlements.
(d) When a cooperating agency with
jurisdiction by law objects to or expresses reservations about the proposal
on grounds of environmental impacts,
the agency expressing the objection or
reservation shall specify the mitigation measures it considers necessary to
allow the agency to grant or approve
applicable permit, license, or related
requirements or concurrences.
§ 1503.4 Response to comments.
(a) An agency preparing a final environmental impact statement shall assess and consider comments both individually and collectively, and shall respond by one or more of the means listed below, stating its response in the
final statement. Possible responses are
to:
(1) Modify alternatives including the
proposed action.
(2) Develop and evaluate alternatives
not previously given serious consideration by the agency.
(3) Supplement, improve, or modify
its analyses.
(4) Make factual corrections.
(5) Explain why the comments do not
warrant further agency response, citing the sources, authorities, or reasons
which support the agency’s position
and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response.
(b) All substantive comments received on the draft statement (or summaries thereof where the response has
been exceptionally voluminous), should
be attached to the final statement
whether or not the comment is thought
to merit individual discussion by the
agency in the text of the statement.
(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, agencies
may write them on errata sheets and
attach them 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 circulated
(§ 1502.19). The entire document with a
new cover sheet shall be filed as the
final statement (§ 1506.9).

PART 1504—PREDECISION REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL ACTIONS DETERMINED TO BE ENVIRONMENTALLY
UNSATISFACTORY
Sec.
1504.1
1504.2
1504.3

Purpose.
Criteria for referral.
Procedure for referrals and response.

AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).

§ 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) Under section 309 of the Clean Air
Act (42 U.S.C. 7609), the Administrator
of the Environmental Protection Agency is directed to review and comment
publicly on the environmental impacts
of Federal activities, including actions
for which environmental impact statements are prepared. 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 the Act
other Federal agencies may make similar reviews of environmental impact
statements, including judgments on
the acceptability of anticipated environmental impacts. These reviews

849

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00859

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1504.2

40 CFR Ch. V (7–1–11 Edition)

must be made available to the President, the Council and the public.
[43 FR 55998, Nov. 29, 1978]

§ 1504.2 Criteria for referral.
Environmental referrals should be
made to the Council only after concerted, timely (as early as possible 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.

erowe on DSK5CLS3C1PROD with CFR

[43 FR 55998, Nov. 29, 1978]

§ 1504.3 Procedure for referrals and
response.
(a) A Federal agency making the referral to the Council shall:
(1) Advise 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 advice in the referring agency’s comments on the draft
environmental impact statement, except when the statement does not contain adequate information to permit an
assessment of the matter’s environmental acceptability.
(3) Identify any essential information
that is lacking and request that it be
made available at the earliest possible
time.
(4) Send copies of such advice to the
Council.
(b) The referring agency shall deliver
its referral to the Council not later
than twenty-five (25) days after the
final environmental impact statement
has been made available to the Environmental Protection Agency, commenting agencies, and the public. Except when an extension of this period
has been granted by the lead agency,
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 requesting that no action be taken to implement the matter
until the Council acts upon the referral. The letter shall include a copy of
the statement referred to in (c)(2) of
this section.
(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 material facts in controversy and incorporate (by reference
if appropriate) agreed upon facts,
(ii) Identify any existing environmental requirements or policies which
would be violated by the matter,
(iii) Present the reasons why the referring agency believes the matter is
environmentally unsatisfactory,
(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) Not later than twenty-five (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.
(3) Give the lead agency’s response to
the referring agency’s recommendations.
(e) Interested persons (including the
applicant) may deliver their views in
writing to the Council. Views in support of the referral should be delivered

850

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00860

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1505.1

not later than the referral. Views in
support of the response shall be delivered not later than the response.
(f) Not later than twenty-five (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) Hold public meetings or hearings
to 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 issue should
be further negotiated by the referring
and lead agencies and 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) When the referral involves an action required by statute to be determined on the record after opportunity
for agency hearing, the referral shall
be conducted in a manner consistent
with 5 U.S.C. 557(d) (Administrative
Procedure Act).
[43 FR 55998, Nov. 29, 1978; 44 FR 873, Jan. 3,
1979]

erowe on DSK5CLS3C1PROD with CFR

PART 1505—NEPA AND AGENCY
DECISIONMAKING
Sec.
1505.1

1505.2 Record of decision in cases requiring
environmental impact statements.
1505.3 Implementing the decision.
AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).
SOURCE: 43 FR 55999, Nov. 29, 1978, unless
otherwise noted.

§ 1505.1 Agency decisionmaking procedures.
Agencies shall adopt procedures
(§ 1507.3) to ensure that decisions are
made in accordance with the policies
and purposes of the Act. Such procedures shall include but not be limited
to:
(a) Implementing procedures under
section 102(2) to achieve the requirements of sections 101 and 102(1).
(b) 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 corresponds with them.
(c) Requiring that relevant environmental documents, comments, and responses be part of the record in formal
rulemaking
or
adjudicatory
proceedings.
(d) Requiring that relevant environmental documents, comments, and responses
accompany
the
proposal
through existing agency review processes so that agency officials use the
statement in making decisions.
(e) Requiring that the alternatives
considered by the decisionmaker are
encompassed by the range of alternatives discussed in the relevant environmental documents and that the decisionmaker consider the alternatives
described in the environmental impact
statement. If another decision document accompanies the relevant environmental documents to the decisionmaker, 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.

Agency decisionmaking procedures.

851

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00861

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1505.2

40 CFR Ch. V (7–1–11 Edition)

§ 1505.2 Record of decision in cases requiring
environmental
impact
statements.
At the time of its decision (§ 1506.10)
or, if appropriate, its recommendation
to Congress, each agency shall prepare
a concise public record of decision. The
record, which may be integrated into
any other record prepared by the agency, including that required by OMB
Circular A–95 (Revised), part I, sections
6(c) and (d), and part II, section 5(b)(4),
shall:
(a) State what the decision was.
(b) Identify all alternatives considered by the agency in reaching its decision, specifying the alternative or alternatives which were considered to be
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 which were balanced by the agency
in making its decision and state how
those considerations entered into its
decision.
(c) State whether all practicable
means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not,
why they were not. A monitoring and
enforcement program shall be adopted
and summarized where applicable for
any mitigation.

erowe on DSK5CLS3C1PROD with CFR

§ 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 (§ 1505.2(c)) and other
conditions established in the environmental impact statement or during its
review and committed as part of the
decision shall be implemented by the
lead agency or other appropriate consenting agency. The lead agency shall:
(a) Include appropriate conditions in
grants, permits or other approvals.
(b) Condition funding of actions on
mitigation.
(c) Upon request, inform cooperating
or commenting agencies on progress in
carrying out mitigation measures
which they have proposed and which

were adopted by the agency making
the decision.
(d) Upon request, make available to
the public the results of relevant monitoring.

PART 1506—OTHER REQUIREMENTS
OF NEPA
Sec.
1506.1 Limitations on actions during NEPA
process.
1506.2 Elimination of duplication with State
and local procedures.
1506.3 Adoption.
1506.4 Combining documents.
1506.5 Agency responsibility.
1506.6 Public involvement.
1506.7 Further guidance.
1506.8 Proposals for legislation.
1506.9 Filing requirements.
1506.10 Timing of agency action.
1506.11 Emergencies.
1506.12 Effective date.
AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).
SOURCE: 43 FR 56000, Nov. 29, 1978, unless
otherwise noted.

§ 1506.1 Limitations on actions during
NEPA process.
(a) Until an agency issues a record of
decision as provided in § 1505.2 (except
as provided in paragraph (c) of this section), no action concerning the proposal shall be taken which 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
insure that the objectives and procedures of NEPA are achieved.
(c) While work on a required program
environmental impact statement is in
progress and the action is not covered
by an existing program statement,

852

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00862

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1506.3

erowe on DSK5CLS3C1PROD with CFR

agencies shall not undertake in the interim any major Federal action covered by the program which 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 impact statement; 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.
(d) This section does not preclude development by applicants of plans or designs or performance of other work
necessary to support an application for
Federal, State or local permits or assistance. Nothing in this section shall
preclude Rural Electrification Administration approval of minimal expenditures not affecting the environment
(e.g. long leadtime equipment and purchase options) made by non-governmental entities seeking loan guarantees from the Administration.
§ 1506.2 Elimination of duplication
with State and local procedures.
(a) Agencies authorized by law to cooperate with State agencies of statewide jurisdiction pursuant to section
102(2)(D) of the Act may do so.
(b) Agencies shall cooperate with
State and local agencies to the fullest
extent possible to reduce duplication
between NEPA and State and local requirements, unless the agencies are
specifically barred from doing so by
some other law. Except for cases covered by paragraph (a) of this section,
such cooperation shall to the fullest
extent possible include:
(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) Agencies shall cooperate with
State and local agencies to the fullest
extent possible to reduce duplication
between NEPA and comparable State
and local requirements, unless the
agencies are specifically barred from
doing so by some other law. Except for

cases covered by paragraph (a) of this
section, such cooperation shall to the
fullest extent possible include joint environmental impact statements. In
such cases one or more Federal agencies and one or more State or local
agencies shall be joint lead agencies.
Where State laws or local ordinances
have environmental impact statement
requirements in addition to but not in
conflict with those in NEPA, Federal
agencies shall 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
or local planning processes, statements
shall discuss any inconsistency of a
proposed action with any approved
State or local plan and laws (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.
§ 1506.3

Adoption.

(a) An agency may adopt a Federal
draft or final environmental impact
statement or portion thereof provided
that the statement or portion thereof
meets the standards for an adequate
statement under these regulations.
(b) If the actions covered by the
original environmental impact statement and the proposed action are substantially the same, the agency adopting another agency’s statement is not
required to recirculate it except as a
final statement. Otherwise the adopting agency shall treat the statement as
a draft and recirculate it (except as
provided in paragraph (c) of this section).
(c) A cooperating agency may adopt
without recirculating 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.
(d) When an agency adopts a statement which is not final within the
agency that prepared it, or when the
action it assesses is the subject of a referral under part 1504, or when the
statement’s adequacy is the subject of

853

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00863

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1506.4

40 CFR Ch. V (7–1–11 Edition)

a judicial action which is not final, the
agency shall so specify.

erowe on DSK5CLS3C1PROD with CFR

§ 1506.4 Combining documents.
Any environmental document in
compliance with NEPA may be combined with any other agency document
to reduce duplication and paperwork.
§ 1506.5 Agency responsibility.
(a) Information. If an agency requires
an applicant to submit environmental
information for possible use by the
agency in preparing an environmental
impact statement, then the agency
should assist the applicant by outlining the types of information required. The agency shall independently
evaluate the information submitted
and shall be responsible for its accuracy. If the agency chooses to use the
information submitted by the applicant in the environmental impact
statement, either directly or by reference, then the names of the persons
responsible for the independent evaluation shall be included in the list of preparers (§ 1502.17). It is the intent of this
paragraph that acceptable work not be
redone, but that it be verified by the
agency.
(b) Environmental assessments. If an
agency permits an applicant to prepare
an environmental assessment, the
agency, besides fulfilling the requirements of paragraph (a) of this section,
shall make its own evaluation of the
environmental issues and take responsibility for the scope and content of the
environmental assessment.
(c) Environmental impact statements.
Except as provided in §§ 1506.2 and 1506.3
any environmental impact statement
prepared pursuant to the requirements
of NEPA shall be prepared directly by
or by a contractor selected by the lead
agency or where appropriate under
§ 1501.6(b), a cooperating agency. It is
the intent of these regulations that the
contractor be chosen solely by the lead
agency, or by the lead agency in cooperation with cooperating agencies, or
where appropriate by a cooperating
agency to avoid any conflict of interest. Contractors shall execute a disclosure statement prepared by the lead
agency, or where appropriate the cooperating agency, specifying that they
have no financial or other interest in

the outcome of the project. If the document is prepared by contract, the responsible Federal official shall furnish
guidance and participate in the preparation and shall independently evaluate the statement prior to its approval
and take responsibility for its scope
and contents. Nothing in this section is
intended to prohibit any agency from
requesting any person to submit information to it or to prohibit any person
from submitting information to any
agency.
§ 1506.6 Public involvement.
Agencies shall:
(a) Make diligent efforts to involve
the public in preparing and implementing their NEPA procedures.
(b) Provide public notice of NEPA-related hearings, public meetings, and
the availability of environmental documents so as to inform those persons
and agencies who may be interested or
affected.
(1) In all cases the agency shall mail
notice to those who have requested it
on an individual action.
(2) In the case of an action with effects of national concern notice shall
include publication in the FEDERAL
REGISTER and notice by mail to national organizations reasonably expected to be interested in the matter
and may include listing in the 102 Monitor. An agency engaged in rulemaking
may provide notice by mail to national
organizations who have requested that
notice regularly be provided. Agencies
shall maintain a list of such organizations.
(3) In the case of an action with effects primarily of local concern the notice may include:
(i) Notice to State and areawide
clearinghouses pursuant to OMB Circular A–95 (Revised).
(ii) Notice to Indian tribes when effects may occur on reservations.
(iii) Following the affected State’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.

854

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00864

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1506.8

erowe on DSK5CLS3C1PROD with CFR

(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.
(c) Hold or sponsor public hearings or
public meetings whenever appropriate
or in accordance with statutory requirements applicable to the agency.
Criteria shall include whether there is:
(1) Substantial environmental controversy concerning the proposed action or substantial interest in holding
the hearing.
(2) A request for a hearing by another
agency with jurisdiction over the action supported by reasons why a hearing will be helpful. If a draft environmental impact statement is to be considered at a public hearing, the agency
should make the statement available
to the public at least 15 days in advance (unless the purpose of the hearing is to provide information for the
draft environmental impact statement).
(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 (5 U.S.C.
552), without regard to the exclusion
for interagency memoranda where such
memoranda transmit comments of
Federal agencies on the environmental
impact of the proposed action. Materials to be made available to the public
shall be provided to the public without
charge to the extent practicable, or at
a fee which is not more than the actual
costs of reproducing copies required to
be sent to other Federal agencies, including the Council.
§ 1506.7 Further guidance.
The Council may provide further
guidance concerning NEPA and its procedures including:

(a) A handbook which the Council
may supplement from time to time,
which shall in plain language provide
guidance and instructions concerning
the application of NEPA and these regulations.
(b) Publication of the Council’s
Memoranda to Heads of Agencies.
(c) In conjunction with the Environmental Protection Agency and the publication of the 102 Monitor, notice of:
(1) Research activities;
(2) Meetings and conferences related
to NEPA; and
(3) Successful and innovative procedures used by agencies to implement
NEPA.
§ 1506.8

Proposals for legislation.

(a) The NEPA process for proposals
for legislation (§ 1508.17) significantly
affecting the quality of the human environment shall be integrated with the
legislative process of the Congress. A
legislative
environmental
impact
statement is the detailed statement required by law to be included in a recommendation or report on a legislative
proposal to Congress. A legislative environmental impact statement shall be
considered part of the formal transmittal of a legislative proposal to Congress; however, it may be transmitted
to Congress up to 30 days later in order
to allow time for completion of an accurate statement which can serve as
the basis for public and Congressional
debate. The statement must be available in time for Congressional hearings
and deliberations.
(b) Preparation of a legislative environmental impact statement shall conform to the requirements of these regulations except as follows:
(1) There need not be a scoping process.
(2) The legislative statement shall be
prepared in the same manner as a draft
statement, but shall be considered the
‘‘detailed statement’’ required by statute; Provided, That when any of the following conditions exist both the draft
and final environmental impact statement on the legislative proposal shall
be prepared and circulated as provided
by §§ 1503.1 and 1506.10.
(i) A Congressional Committee with
jurisdiction over the proposal has a

855

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00865

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1506.9

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

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.) and
the Wilderness Act (16 U.S.C. 1131 et
seq.)).
(iii) Legislative approval is sought
for Federal or federally assisted construction or other projects which 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.
(c) 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.
§ 1506.9 Filing requirements.
(a) Environmental impact statements
together with comments and responses
shall be filed with the Environmental
Protection Agency, attention Office of
Federal Activities, EIS Filing Section,
Ariel Rios Building (South Oval
Lobby), Mail Code 2252–A, Room 7220,
1200 Pennsylvania Ave., NW., Washington, DC 20460. This address is for deliveries by US Postal Service (including USPS Express Mail).
(b) For deliveries in-person or by
commercial express mail services, including Federal Express or UPS, the
correct address is: US Environmental
Protection Agency, Office of Federal
Activities, EIS Filing Section, Ariel
Rios Building (South Oval Lobby),
Room 7220, 1200 Pennsylvania Avenue,
NW., Washington, DC 20004.
(c) Statements shall be filed with the
EPA no earlier than they are also
transmitted to commenting agencies
and made available to the public. EPA
shall deliver one copy of each statement to the Council, which shall satisfy the requirement of availability to
the President. EPA may issue guidelines to agencies to implement its re-

sponsibilities under this section and
§ 1506.10.
[70 FR 41148, July 18, 2005]

§ 1506.10

Timing of agency action.

(a) The Environmental Protection
Agency shall publish a notice in the
FEDERAL REGISTER each week of the
environmental impact statements filed
during the preceding week. The minimum time periods set forth in this
section shall be calculated from the
date of publication of this notice.
(b) No decision on the proposed action shall be made or recorded under
§ 1505.2 by a Federal agency until the
later of the following dates:
(1) Ninety (90) days after publication
of the notice described above in paragraph (a) of this section for a draft environmental impact statement.
(2) Thirty (30) days after publication
of the notice described above in paragraph (a) of this section for a final environmental impact statement.
An exception to the rules on timing
may be made in the case of an agency
decision which is subject to a formal
internal appeal. Some agencies have a
formally established appeal process
which allows other agencies or the public to take appeals on a decision and
make their views known, after publication of the final environmental impact
statement. In such cases, where a real
opportunity exists to alter the decision, the decision may be made and recorded at the same time the environmental impact statement is published.
This means that the period for appeal
of the decision and the 30-day period
prescribed 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. 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 and publish a decision on the
final rule simultaneously with publication of the notice of the availability of
the final environmental impact statement as described in paragraph (a) of
this section.

856

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00866

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1507.2

(c) If the final environmental impact
statement is filed within ninety (90)
days after a draft environmental impact statement is filed with the Environmental Protection Agency, the minimum thirty (30) day period and the
minimum ninety (90) day period may
run concurrently. However, subject to
paragraph (d) of this section agencies
shall allow not less than 45 days for
comments on draft statements.
(d) The lead agency may extend prescribed periods. The Environmental
Protection Agency may upon a showing by the lead agency of compelling
reasons of national policy reduce the
prescribed periods and may upon a
showing by any other Federal agency
of compelling reasons of national policy also extend prescribed periods, but
only after consultation with the lead
agency. (Also see § 1507.3(d).) 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.
[43 FR 56000, Nov. 29, 1978; 44 FR 874, Jan. 3,
1979]

§ 1506.11

Emergencies.

Where
emergency
circumstances
make it necessary to take an action
with significant environmental impact
without observing the provisions of
these regulations, the Federal agency
taking the action should consult with
the Council about alternative arrangements. 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.

erowe on DSK5CLS3C1PROD with CFR

§ 1506.12

Effective date.

The effective date of these regulations is July 30, 1979, except that for
agencies that administer programs
that qualify under section 102(2)(D) of
the Act or under section 104(h) of the
Housing and Community Development
Act of 1974 an additional four months
shall be allowed for the State or local
agencies to adopt their implementing
procedures.

(a) These regulations shall apply to
the fullest extent practicable to ongoing activities and environmental documents begun before the effective date.
These regulations do not apply to an
environmental impact statement or
supplement if the draft statement was
filed before the effective date of these
regulations. No completed environmental documents need be redone by
reasons of these regulations. Until
these regulations are applicable, the
Council’s guidelines published in the
FEDERAL REGISTER of August 1, 1973,
shall continue to be applicable. In
cases where these regulations are applicable the guidelines are superseded.
However, nothing shall prevent an
agency from proceeding under these
regulations at an earlier time.
(b) NEPA shall continue to be applicable to actions begun before January
1, 1970, to the fullest extent possible.

PART 1507—AGENCY
COMPLIANCE
Sec.
1507.1
1507.2
1507.3

Compliance.
Agency capability to comply.
Agency procedures.

AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).
SOURCE: 43 FR 56002, Nov. 29, 1978, unless
otherwise noted.

§ 1507.1

Compliance.

All agencies of the Federal Government shall comply with these regulations. It is the intent of these regulations to allow each agency flexibility
in adapting its implementing procedures authorized by § 1507.3 to the requirements of other applicable laws.
§ 1507.2

Agency capability to comply.

Each agency shall be capable (in
terms of personnel and other resources)
of complying with the requirements
enumerated below. Such compliance
may include use of other’s resources,
but the using agency shall itself have
sufficient capability to evaluate what
others do for it. Agencies shall:

857

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00867

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1507.3

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

(a) Fulfill the requirements of section 102(2)(A) of the Act to utilize a
systematic, interdisciplinary approach
which will insure the integrated use of
the natural and social sciences and the
environmental design arts in planning
and in decisionmaking which may have
an impact on the human environment.
Agencies shall designate a person to be
responsible for overall review of agency
NEPA compliance.
(b) Identify methods and procedures
required by section 102(2)(B) to insure
that presently unquantified environmental amenities and values may be
given appropriate consideration.
(c) Prepare adequate environmental
impact statements pursuant to section
102(2)(C) and comment on 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 which involves
unresolved conflicts concerning alternative uses of available resources. This
requirement of section 102(2)(E) extends to all such proposals, not just the
more
limited
scope
of
section
102(2)(C)(iii) where the discussion of alternatives is confined to impact statements.
(e) Comply with the requirements of
section 102(2)(H) 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 the Act and of Executive Order 11514,
Protection and Enhancement of Environmental Quality, Sec. 2.
§ 1507.3 Agency procedures.
(a) Not later than eight months after
publication of these regulations as finally adopted in the FEDERAL REGISTER, or five months after the establishment of an agency, whichever shall
come later, each agency shall as necessary adopt procedures to supplement
these regulations. When the agency is a
department, major subunits are encouraged (with the consent of the department) to adopt their own procedures. Such procedures shall not paraphrase these regulations. They shall

confine themselves to implementing
procedures. Each agency shall consult
with the Council while developing its
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. The
procedures shall be adopted only after
an opportunity for public review and
after review by the Council for conformity with the Act and these regulations. The Council shall complete its
review within 30 days. Once in effect
they shall be filed with the Council and
made readily available to the public.
Agencies are encouraged to publish explanatory guidance for these regulations and their own procedures. Agencies shall continue to review their policies and procedures and in consultation
with the Council to revise them as necessary to ensure full compliance with
the purposes and provisions of the Act.
(b) Agency procedures shall comply
with these regulations except where
compliance would be inconsistent with
statutory requirements and shall include:
(1) Those procedures required by
§§ 1501.2(d), 1502.9(c)(3), 1505.1, 1506.6(e),
and 1508.4.
(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
(categorical exclusions (§ 1508.4)).
(iii) Which normally require environmental assessments but not necessarily
environmental impact statements.
(c) Agency procedures may include
specific criteria for providing limited
exceptions to the provisions of these
regulations for classified proposals.
They are proposed actions which 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. Environmental assessments
and environmental impact statements

858

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00868

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1508.5

which address classified proposals may
be safeguarded and restricted from public dissemination in accordance with
agencies’ own regulations applicable to
classified information. These documents may be organized so that classified portions can be included as annexes, in order that the unclassified
portions can be made available to the
public.
(d) Agency procedures may provide
for periods of time other than those
presented in § 1506.10 when necessary to
comply with other specific statutory
requirements.
(e) Agency procedures may 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
notice of intent required by § 1501.7
may be published at a reasonable time
in advance of preparation of the draft
statement.

PART 1508—TERMINOLOGY AND
INDEX

erowe on DSK5CLS3C1PROD with CFR

Sec.
1508.1
1508.2
1508.3
1508.4
1508.5
1508.6
1508.7
1508.8
1508.9
1508.10
1508.11
1508.12
1508.13
1508.14
1508.15
1508.16
1508.17
1508.18
1508.19
1508.20
1508.21
1508.22
1508.23
1508.24
1508.25
1508.26
1508.27
1508.28

Terminology.
Act.
Affecting.
Categorical exclusion.
Cooperating agency.
Council.
Cumulative impact.
Effects.
Environmental assessment.
Environmental document.
Environmental impact statement.
Federal agency.
Finding of no significant impact.
Human environment.
Jurisdiction by law.
Lead agency.
Legislation.
Major Federal action.
Matter.
Mitigation.
NEPA process.
Notice of intent.
Proposal.
Referring agency.
Scope.
Special expertise.
Significantly.
Tiering.

SOURCE: 43 FR 56003, Nov. 29, 1978, unless
otherwise noted.

§ 1508.1

§ 1508.2

Act.

Act means the National Environmental Policy Act, as amended (42
U.S.C. 4321, et seq.) which is also referred to as ‘‘NEPA.’’
§ 1508.3

Affecting.

Affecting means will or may have an
effect on.
§ 1508.4

Categorical exclusion.

Categorical exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment
and which have been found to have no
such effect in procedures adopted by a
Federal agency in implementation of
these regulations (§ 1507.3) and for
which, therefore, neither an environmental assessment nor an environmental impact statement is required.
An agency may decide in its procedures
or otherwise, to prepare environmental
assessments for the reasons stated in
§ 1508.9 even though it is not required to
do so. Any procedures under this section shall provide for extraordinary
circumstances in which a normally excluded action may have a significant
environmental effect.
§ 1508.5

AUTHORITY: NEPA, the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.), sec. 309 of the Clean
Air Act, as amended (42 U.S.C. 7609), and E.O.
11514 (Mar. 5, 1970, as amended by E.O. 11991,
May 24, 1977).

Terminology.

The terminology of this part shall be
uniform throughout the Federal Government.

Cooperating agency.

Cooperating agency means any Federal agency other than a lead agency
which 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
significantly affecting the quality of
the human environment. The selection
and responsibilities of a cooperating
agency are described in § 1501.6. A State
or local agency of similar qualifications or, when the effects are on a reservation, an Indian Tribe, may by
agreement with the lead agency become a cooperating agency.

859

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00869

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1508.6
§ 1508.6

40 CFR Ch. V (7–1–11 Edition)
Council.

Council means the Council on Environmental Quality established by title
II of the Act.
§ 1508.7

Cumulative impact.

Cumulative impact is the impact on
the environment which results from
the incremental impact of the action
when added to other past, present, and
reasonably foreseeable future actions
regardless of what agency (Federal or
non-Federal) or person undertakes such
other actions. Cumulative impacts can
result from individually minor but collectively significant actions taking
place over a period of time.
§ 1508.8

Effects.

Effects include:
(a) Direct effects, which are caused
by the action and occur at the same
time and place.
(b) Indirect effects, which are caused
by the action and are later in time or
farther removed in distance, but are
still reasonably foreseeable. Indirect
effects may include growth inducing effects and other effects related to induced changes in the pattern of land
use, population density or growth rate,
and related effects on air and water
and other natural systems, including
ecosystems.
Effects and impacts as used in these
regulations are synonymous. Effects
includes ecological (such as the effects
on natural resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic, social, or
health, whether direct, indirect, or cumulative. Effects may also include
those resulting from actions which
may have both beneficial and detrimental effects, even if on balance the
agency believes that the effect will be
beneficial.

erowe on DSK5CLS3C1PROD with CFR

§ 1508.9

Environmental assessment.

Environmental assessment:
(a) Means a concise public document
for which a Federal agency is responsible that serves to:
(1) Briefly provide sufficient evidence
and analysis for determining whether
to prepare an environmental impact

statement or a finding of no significant
impact.
(2) Aid an agency’s compliance with
the Act when no environmental impact
statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of
the need for the proposal, of alternatives as required by section 102(2)(E),
of the environmental impacts of the
proposed action and alternatives, and a
listing of agencies and persons consulted.
§ 1508.10

Environmental document.

Environmental document includes the
documents specified in § 1508.9 (environmental assessment), § 1508.11 (environmental impact statement), § 1508.13
(finding of no significant impact), and
§ 1508.22 (notice of intent).
§ 1508.11 Environmental impact statement.
Environmental impact statement means
a detailed written statement as required by section 102(2)(C) of the Act.
§ 1508.12

Federal agency.

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. It also includes for purposes of these regulations
States and units of general local government and Indian tribes assuming
NEPA responsibilities under section
104(h) of the Housing and Community
Development Act of 1974.
§ 1508.13 Finding of no significant impact.
Finding of no significant impact means
a document by a Federal agency briefly
presenting the reasons why an action,
not otherwise excluded (§ 1508.4), will
not have a significant effect on the
human environment and for which an
environmental
impact
statement
therefore will not be prepared. It shall
include the environmental assessment
or a summary of it and shall note any
other environmental documents related to it (§ 1501.7(a)(5)). If the assessment is included, the finding need not

860

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00870

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1508.19

repeat any of the discussion in the assessment but may incorporate it by
reference.
§ 1508.14 Human environment.
Human environment shall be interpreted comprehensively to include the
natural and physical environment and
the relationship of people with that environment. (See the definition of ‘‘effects’’ (§ 1508.8).) This means that economic or social effects are not intended
by themselves to require preparation of
an environmental impact statement.
When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then
the environmental impact statement
will discuss all of these effects on the
human environment.
§ 1508.15 Jurisdiction by law.
Jurisdiction by law means agency authority to approve, veto, or finance all
or part of the proposal.
§ 1508.16 Lead agency.
Lead agency means the agency or
agencies preparing or having taken primary responsibility for preparing the
environmental impact statement.

erowe on DSK5CLS3C1PROD with CFR

§ 1508.17 Legislation.
Legislation includes a bill or legislative proposal to Congress developed by
or with the significant cooperation and
support of a Federal agency, but does
not include requests for appropriations.
The test for significant cooperation is
whether the proposal is in fact predominantly that of the agency rather
than another source. Drafting does not
by itself constitute significant cooperation. Proposals for legislation include requests for ratification of treaties. Only the agency which has primary responsibility for the subject
matter involved will prepare a legislative environmental impact statement.
§ 1508.18 Major Federal action.
Major Federal action includes actions
with effects that may be major and
which are potentially subject to Federal control and responsibility. Major
reinforces but does not have a meaning
independent of significantly (§ 1508.27).
Actions include the circumstance

where the responsible officials fail to
act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as
agency action.
(a) Actions 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 (§§ 1506.8, 1508.17). Actions do not include funding assistance
solely in the form of general revenue
sharing funds, distributed under the
State and Local Fiscal Assistance Act
of 1972, 31 U.S.C. 1221 et seq., with no
Federal agency control over the subsequent use of such funds. Actions do not
include bringing judicial or administrative civil or criminal enforcement
actions.
(b) Federal actions tend to fall within
one of the following categories:
(1) Adoption of official policy, such
as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et
seq.; treaties and international conventions or agreements; formal documents
establishing an agency’s policies which
will result in or substantially alter
agency programs.
(2) Adoption of formal plans, such as
official documents prepared or approved by federal agencies which guide
or prescribe alternative uses of Federal
resources, upon which future agency
actions will be based.
(3) 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.
(4) 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.
§ 1508.19 Matter.
Matter includes for purposes of part
1504:

861

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00871

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1508.20

40 CFR Ch. V (7–1–11 Edition)

(a) 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).
(b) With respect to all other agencies,
any proposed major federal action to
which section 102(2)(C) of NEPA applies.
§ 1508.20 Mitigation.
Mitigation includes:
(a) Avoiding the impact altogether
by not taking a certain action or parts
of an action.
(b) Minimizing impacts by limiting
the degree or magnitude of the action
and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
(d) Reducing or eliminating the impact over time by preservation and
maintenance operations during the life
of the action.
(e) Compensating for the impact by
replacing or providing substitute resources or environments.
§ 1508.21 NEPA process.
NEPA process means all measures
necessary for compliance with the requirements of section 2 and title I of
NEPA.

erowe on DSK5CLS3C1PROD with CFR

§ 1508.22 Notice of intent.
Notice of intent means a notice that
an environmental impact statement
will be prepared and considered. The
notice shall briefly:
(a) Describe the proposed action and
possible alternatives.
(b) Describe the agency’s proposed
scoping process including whether,
when, and where any scoping meeting
will be held.
(c) State the name and address of a
person within the agency who can answer questions about the proposed action and the environmental impact
statement.
§ 1508.23 Proposal.
Proposal exists at that stage in the
development of an action when an
agency subject to the Act has a goal
and is actively preparing to make a decision on one or more alternative

means of accomplishing that goal and
the effects can be meaningfully evaluated. Preparation of an environmental
impact statement on a proposal should
be timed (§ 1502.5) so that the final
statement may be completed in time
for the statement to be included in any
recommendation or report on the proposal. A proposal may exist in fact as
well as by agency declaration that one
exists.
§ 1508.24

Referring agency.

Referring agency means the federal
agency which 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.
§ 1508.25

Scope.

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 (§§ 1502.20 and
1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3
types of alternatives, and 3 types of impacts. They include:
(a) Actions (other than unconnected
single actions) which may be:
(1) 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 which may require environmental
impact statements.
(ii) Cannot or will not proceed unless
other actions are taken previously or
simultaneously.
(iii) Are interdependent parts of a
larger action and depend on the larger
action for their justification.
(2) Cumulative actions, which when
viewed with other proposed actions
have cumulatively significant impacts
and should therefore be discussed in
the same impact statement.
(3) Similar actions, which when
viewed with other reasonably foreseeable or proposed agency actions, have
similarities that provide a basis for
evaluating
their
environmental

862

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00872

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1508.28

consequencies together, such as common timing or geography. An agency
may wish to analyze these actions in
the same impact statement. It should
do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives
to such actions is to treat them in a
single impact statement.
(b) Alternatives, which include:
(1) No action alternative.
(2) Other reasonable courses of actions.
(3) Mitigation measures (not in the
proposed action).
(c) Impacts, which may be: (1) Direct;
(2) indirect; (3) cumulative.
§ 1508.26

Special expertise.

Special expertise means statutory responsibility, agency mission, or related
program experience.

erowe on DSK5CLS3C1PROD with CFR

§ 1508.27

Significantly.

Significantly as used in NEPA requires considerations of both context
and intensity:
(a) Context. This means that the significance of an action must be analyzed
in several contexts such as society as a
whole (human, national), the affected
region, the affected interests, and the
locality. Significance varies with the
setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend
upon the effects in the locale rather
than in the world as a whole. Both
short- and long-term effects are relevant.
(b) Intensity. This refers to the severity of impact. Responsible officials
must bear in mind that more than one
agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:
(1) Impacts that may be both beneficial and adverse. A significant effect
may exist even if the Federal agency
believes that on balance the effect will
be beneficial.
(2) The degree to which the proposed
action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands,
prime farmlands, wetlands, wild and

scenic rivers, or ecologically critical
areas.
(4) The degree to which the effects on
the quality of the human environment
are likely to be highly controversial.
(5) The degree to which the possible
effects on the human environment are
highly uncertain or involve unique or
unknown risks.
(6) The degree to which the action
may establish a precedent for future
actions with significant effects or represents a decision in principle about a
future consideration.
(7) Whether the action is related to
other actions with individually insignificant but cumulatively significant
impacts. Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment.
Significance cannot be avoided by
terming an action temporary or by
breaking it down into small component
parts.
(8) The degree to which the action
may adversely affect districts, sites,
highways, structures, or objects listed
in or eligible for listing in the National
Register of Historic Places or may
cause loss or destruction of significant
scientific, cultural, or historical resources.
(9) The degree to which the action
may adversely affect an endangered or
threatened species or its habitat that
has been determined to be critical
under the Endangered Species Act of
1973.
(10) Whether the action threatens a
violation of Federal, State, or local law
or requirements imposed for the protection of the environment.
[43 FR 56003, Nov. 29, 1978; 44 FR 874, Jan. 3,
1979]

§ 1508.28

Tiering.

Tiering refers to the coverage of general matters in broader environmental
impact statements (such as national
program or policy statements) with
subsequent narrower statements or environmental analyses (such as regional
or basinwide program statements or ultimately site-specific statements) incorporating by reference the general
discussions and concentrating solely on
the issues specific to the statement

863

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00873

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Index

40 CFR Ch. V (7–1–11 Edition)

subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is:
(a) From a program, plan, or policy
environmental impact statement to a
program, plan, or policy statement or
analysis of lesser scope or to a site-specific statement or analysis.
(b) From an environmental impact
statement 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
analysis 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
which are ripe for decision and exclude
from consideration issues already decided or not yet ripe.

Index to Parts 1500 Through 1508
EDITORIAL NOTE: This listing is provided
for information purposes only. It is compiled
and kept up-to-date by the Council on Environmental Quality, and is revised through
July 1, 2011.

Appendices ............................
Applicant ................................

Apply NEPA Early in the
Process.
Categorical Exclusion ............

erowe on DSK5CLS3C1PROD with CFR

Circulation of Environmental
Impact Statement.
Classified Information ............
Clean Air Act ..........................
Combining Documents ..........
Commenting ...........................
Consultation Requirement .....
Context ...................................

Cost-Benefit ...........................
Council on Environmental
Quality.

Cover Sheet ...........................
Cumulative Impact .................
Decisionmaking ......................
Decision points ......................
Dependent .............................
Draft Environmental Impact
Statement.
Early Application of NEPA .....
Economic Effects ...................
Effective Date ........................
Effects ....................................
Emergencies ..........................
Endangered Species Act .......
Energy ....................................
Environmental Assessment ...

Environmental Consequences
Environmental Consultation
Requirements.
Environmental Documents .....
Environmental Impact Statement.

INDEX
Act ..........................................
Action .....................................
Action-forcing .........................
Adoption .................................
Affected Environment ............
Affecting .................................
Agency Authority ....................
Agency Capability ..................
Agency Compliance ...............
Agency Procedures ...............
Agency Responsibility ............
Alternatives ............................

INDEX—Continued
Cooperating Agency ..............

1508.2.
1508.18, 1508.25.
1500.1, 1502.1.
1500.4(n), 1500.5(h), 1506.3.
1502.10(f), 1502.15.
1502.3, 1508.3.
1500.6.
1501.2(a), 1507.2.
1507.1.
1505.1, 1507.3.
1506.5.
1501.2(c), 1502.2,
1502.10(e), 1502.14,
1505.1(e), 1505.2,
1507.2(d), 1508.25(b).
1502.10(k), 1502.18,
1502.24.
1501.2(d)(1), 1501.4(b),
1501.8(a), 1502.19(b),
1503.1(a)(3), 1504.3(e),
1506.1(d), 1506.5(a),
1506.5(b).
1501.2.

Environmental Protection
Agency.
Environmental Review Requirements.
Expedite .................................
Federal Agency ......................
Filing ......................................
Final Environmental Impact
Statement.
Finding of No Significant Impact.
Fish and Wildlife Coordination
Act.
Format for Environmental Impact Statement.
Freedom of Information Act ...
Further Guidance ...................
Generic ..................................
General Services Administration.
Geographic ............................
Graphics .................................
Handbook ...............................
Housing and Community Development Act.

1500.4(p), 1500.5(k),
1501.4(a), 1507.3(b),
1508.4.
1502.19, 1506.3.
1507.3(c).
1504.1(b), 1508.19(a).
1500.4(o), 1500.5(i), 1506.4.
1502.19, 1503.1, 1503.2,
1503.3, 1503.4, 1506.6(f).
1500.4(k), 1500.5(g),
1501.7(a)(6), 1502.25.
1508.27(a).

1500.5(b), 1501.1(b),
1501.5(c), 1501.5(f),
1501.6, 1503.1(a)(1),
1503.2, 1503.3, 1506.3(c),
1506.5(c), 1508.5.
1502.23.
1500.3, 1501.5(e), 1501.5(f),
1501.6(c), 1502.9(c)(4),
1504.1, 1504.2, 1504.3,
1506.6(f), 1506.9,
1506.10(d), 1506.11,
1507.3, 1508.6, 1508.24.
1502.10(a), 1502.11.
1508.7, 1508.25(a),
1508.25(c).
1505.1, 1506.1.
1505.1(b).
1508.25(a).
1502.9(a).
1501.2.
1508.8.
1506.12.
1502.16, 1508.8.
1506.11.
1502.25, 1508.27(b)(9).
1502.16(e).
1501.3, 1501.4(b), 1501.4(c),
1501.7(b)(3), 1506.2(b)(4),
1506.5(b), 1508.4, 1508.9,
1508.10, 1508.13.
1502.10(g), 1502.16.
1500.4(k), 1500.5(g),
1501.7(a)(6), 1502.25,
1503.3(c).
1508.10.
1500.4, 1501.4, 1501.7,
1502.1, 1502.2, 1502.3,
1502.4, 1502.5, 1502.6,
1502.7, 1502.8, 1502.9,
1502.10, 1502.11, 1502.12,
1502.13, 1502.14, 1502.15,
1502.16, 1502.17, 1502.18,
1502.19, 1502.20, 1502.21,
1502.22, 1502.23, 1502.24,
1502.25, 1506.2(c),
1506.3, 1506.8, 1508.11.
1502.11(f), 1504.1, 1504.3,
1506.7(c), 1506.9,
1506.10, 1508.19(a).
1500.4(k), 1500.5(g),
1501.7(a)(6), 1502.25,
1503.3(c).
1501.8(b)(3).
1508.12.
1506.9.
1502.9(b), 1503.1, 1503.4(b).
1500.3, 1500.4(q), 1500.5(l),
1501.4(e), 1508.13.
1502.25.
1502.10.
1506.6(f).
1506.7.
1502.4(c)(2).
1506.8(b)(2)(iii).
1502.4(c)(1).
1502.8.
1506.7(a).
1506.12, 1508.12.

864

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00874

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

Pt. 1515

INDEX—Continued
Human Environment ..............
Impacts ..................................
Implementing the Decision ....
Incomplete or Unavailable Information.
Incorporation by Reference ...
Index ......................................
Indian Tribes ..........................

Intensity ..................................
Interdisciplinary Preparation ..
Interim Actions .......................
Joint Lead Agency .................
Judicial Review ......................
Jurisdiction by Law ................
Lead Agency ..........................

Legislation ..............................
Limitation on Action During
NEPA Process.
List of Preparers ....................
Local or State ........................

Major Federal Action .............
Mandate .................................
Matter .....................................
Methodology ..........................
Mitigation ................................

Monitoring ..............................
National Historic Preservation
Act.
National Register of Historical
Places.
Natural or Depletable Resource Requirements.
Need for Action ......................
NEPA Process .......................
Non-Federal Sponsor ............
Notice of Intent ......................
OMB Circular A–95 ................
Ongoing Activities ..................
Page Limits ............................
Planning .................................
Policy .....................................
Program Environmental Impact Statement.
Programs ...............................
Projects ..................................
Proposal .................................

erowe on DSK5CLS3C1PROD with CFR

Proposed Action ....................
Public Health and Welfare .....
Public Involvement .................
Purpose ..................................

INDEX—Continued

1502.3, 1502.22, 1508.14.
1508.8, 1508.25(c).
1505.3.
1502.22.

Purpose of Action ..................
Record of Decision ................
Referrals ................................

1500.4(j), 1502.21.
1502.10(j).
1501.2(d)(2), 1501.7(a)(1),
1502.16(c), 1503.1(a)(2)(ii),
1506.6(b)(3)(ii), 1508.5,
1508.12.
1508.27(b).
1502.6, 1502.17.
1506.1.
1501.5(b), 1506.2.
1500.3.
1508.15.
1500.5(c), 1501.1(c), 1501.5,
1501.6, 1501.7, 1501.8,
1504.3, 1506.2(c),
1506.8(c), 1506.10(d),
1508.16.
1500.5(j), 1502.3, 1506.8,
1508.17, 1508.18(a).
1506.1.
1502.10(h), 1502.17.
1500.4(n), 1500.5(h),
1501.2(d)(2), 1501.5(b),
1501.5(d), 1501.7(a)(1),
1501.8(c), 1502.16(c),
1503.1(a)(2), 1506.2(b),
1506.6(b)(3), 1508.5,
1508.12, 1508.18.
1502.3, 1508.18.
1500.3.
1504.1, 1504.2, 1504.3,
1508.19.
1502.24.
1502.14(f), 1502.16(h),
1503.3(d), 1505.2(c),
1505.3, 1508.20.
1505.2(c), 1505.3.
1502.25.

Referring Agency ...................
Response to Comments ........
Rural Electrification Administration.
Scientific Accuracy .................
Scope .....................................
Scoping ..................................

Significantly ............................
Similar ....................................
Small Business Associations
Social Effects .........................
Special Expertise ...................
Specificity of Comments ........
State and Areawide Clearinghouses.
State and Local ......................

State and Local Fiscal Assistance Act.
Summary ................................
Supplements to Environmental Impact Statements.
Table of Contents ..................
Technological Development ..
Terminology ...........................
Tiering ....................................
Time Limits ............................
Timing ....................................
Treaties ..................................
When to Prepare an Environmental Assessment.
Whether to Prepare an Environmental Impact Statement.
Wild and Scenic Rivers Act ...
Wilderness Act .......................
Writing ....................................

1508.27(b)(8).
1502.16(f).
1502.10(d), 1502.13.
1508.21.
1501.2(d).
1501.7, 1507.3(e), 1508.22.
1503.1(a)(2)(iii), 1505.2,
1506.6(b)(3)(i).
1506.12.
1500.4(a), 1501.7(b), 1502.7.
1500.5(a), 1501.2(b),
1502.4(b), 1508.18.
1500.2, 1502.4(b),
1508.18(a).
1500.4(i), 1502.4, 1502.20,
1508.18.
1502.4, 1508.18(b).
1508.18.
1502.4, 1502.5, 1506.8,
1508.23.
1502.10(e), 1502.14,
1506.2(d).
1504.1.
1501.4(e), 1503.1(a)(4),
1506.6.
1500.1, 1501.1, 1502.1,
1504.1.

1502.10(d), 1502.13.
1505.2, 1506.1.
1504.1, 1504.2, 1504.3,
1506.3(d).
1504.1, 1504.2, 1504.3.
1503.4.
1506.1(d).
1502.24.
1502.4(a), 1502.9(a),
1508.25.
1500.4(g), 1501.1(d),
1501.4(d), 1501.7,
1502.9(a), 1506.8(b).
1502.3, 1508.27.
1508.25.
1506.6(b)(3)(vi).
1508.8.
1508.26.
1500.4(l), 1503.3.
1501.4(e)(2), 1503.1(a)(2)(iii),
1506.6(b)(3)(i).
1500.4(n), 1500.5(h),
1501.2(d)(2), 1501.5(b),
1501.5(d), 1501.7(a)(1),
1501.8(c), 1502.16(c),
1503.1(a)(2), 1506.2(b),
1506.6(b)(3), 1508.5,
1508.12, 1508.18.
1508.18(a).
1500.4(h), 1502.10(b),
1502.12.
1502.9(c).
1502.10(c).
1502.4(c)(3).
1508.1.
1500.4(i), 1502.4(d), 1502.20,
1508.28.
1500.5(e), 1501.1(e),
1501.7(b)(2), 1501.8.
1502.4, 1502.5, 1506.10.
1508.17.
1501.3.
1501.4.

1506.8(b)(2)(ii).
1506.8(b)(2)(ii).
1502.8.

PART 1515—FREEDOM OF
INFORMATION ACT PROCEDURES
PURPOSE
Sec.
1515.1

FOIA procedures.
ORGANIZATION OF CEQ

1515.2 About the Council on Environmental
Quality (CEQ).
1515.3 CEQ organization.
1515.4 CEQ FOIA Officials.
PROCEDURES FOR REQUESTING RECORDS
1515.5 Making a Freedom of Information
Act request.

865

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00875

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1515.1

40 CFR Ch. V (7–1–11 Edition)

1515.6 CEQ’s response to a request.
1515.7 Expedited processing.
1515.8 Appeals.
1515.9 Extending CEQ’s time to respond.

U.S.C. 4321 through 4347). The Council’s
authority is primarily derived from
that Act, the Environmental Quality
Improvement Act of 1970, as amended
(42 U.S.C. 4371–4374), Reorganization
Plan No. 1 of 1977 (July 15, 1977), and
Executive Order 11514, ‘‘Protection and
Enhancement of Environmental Quality,’’ March 5, 1970, as amended by Executive Order 11991, May 24, 1977.

AVAILABILITY OF INFORMATION
1515.10

Obtaining available information.
COSTS

1515.11 Definitions.
1515.12 Fees in general.
1515.13 Fees for categories of requesters.
1515.14 Other charges.
1515.15 Payment and waiver.
1515.16 Other rights and services.
1515.17–1515.19 [Reserved]

§ 1515.3

AUTHORITY: 5 U.S.C. 552, as amended by
Pub. L. 93–502, Pub. L. 99–570, Pub. L. 104–231,
Pub. L. 110–175; E.O. 13392; Pres. Mem. 74 FR
4685. Source: 42 FR 65158, Dec. 30, 1977, unless
otherwise noted.
SOURCE: 75 FR 48590, Aug. 11, 2010, unless
otherwise noted.

PURPOSE
§ 1515.1 FOIA procedures.
The Freedom of Information Act (5
U.S.C. 552), as amended, commonly
known as FOIA, is a Federal law that
creates a procedure for any person to
request documents and other records
from United States Government agencies. The law requires every Federal
agency to make available to the public
the material requested, unless the material falls under one of the limited exemptions stated in Section 552(b) of the
Act. These procedures explain how the
Council on Environmental Quality
(CEQ)—one of several agencies in the
Executive Office of the President—will
carry out the FOIA. They are written
from the standpoint of a FOIA requester and should be read together
with the FOIA, which provides additional information about access to
records maintained by CEQ. This information is furnished for the guidance of
the public and in compliance with the
requirements of Section 552 of title 5,
United States Code, as amended.

erowe on DSK5CLS3C1PROD with CFR

ORGANIZATION OF CEQ
§ 1515.2 About the Council on Environmental Quality (CEQ).
The Council on Environmental Quality (‘‘CEQ’’ or ‘‘the Council’’) was created by the National Environmental
Policy Act of 1969, as amended (42

CEQ organization.

(a) The Council is made up of a Chair
appointed by the President and subject
to approval by the Senate who serves
in a full-time capacity. Congress has
allowed CEQ to consist of a Council of
one member who serves as Chairman or
Chair.
(b) The National Environmental Policy Act and the Environmental Quality
Improvement Act give the Council the
authority to hire any officers and staff
that may be necessary to carry out responsibilities and functions specified in
these two Acts. Also, the use of consultants and experts is permitted.
(c) In addition to the Chair, the
Council has program and legal staff.
(d) The Council has no field or regional offices.
(e) The Council is located at 722
Jackson Place NW., Washington, DC
20503. Office hours are 9 a.m.–5:30 p.m.,
Monday through Friday, except Federal holidays. To meet with any of the
staff, please write or phone ahead for
an appointment. The main number is
202–456–6224.
§ 1515.4

CEQ FOIA Officials.

(a) The Chair shall appoint a Chief
Freedom of Information Act Officer
(Chief FOIA Officer) who is responsible
for overseeing the Council’s administration of the Freedom of Information
Act and for receiving, routing and
overseeing the processing of all Freedom of Information requests as set
forth in these regulations. The Chair
shall appoint an Appeals Officer, who is
responsible for processing and acting
upon any appeals and may designate
one or more CEQ officials, as appropriate, as FOIA Officers authorized to
oversee and process FOIA requests. The
Chief FOIA Officer may serve as the
Appeals Officer.

866

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00876

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1515.5

(b) The Chief FOIA officer shall designate a FOIA Public Liaison who is
the supervisory official to whom a
FOIA requester can raise concerns
about the service the FOIA requester
has received from the CEQ FOIA Center, described in Section 1515.5(a), following an initial response from the
staff of the CEQ FOIA Center staff. The
FOIA Public Liaison shall assist, as appropriate, in reducing delays and increasing understanding of the status of
requests. The Chief FOIA officer shall
also designate a CEQ FOIA Officer responsible for overseeing CEQ’s day-today administration of the FOIA and for
receiving, routing, and overseeing the
processing of all FOIA requests.
PROCEDURES FOR REQUESTING RECORDS

erowe on DSK5CLS3C1PROD with CFR

§ 1515.5 Making a Freedom of Information Act request.
(a) Availability of records. The Council
maintains a World Wide Web site,
http://www.whitehouse.gov/administration/eop/ceq, and an online Freedom of
Information Act Requester Service
Center
(‘‘Center’’),
http://
www.whitehouse.gov/administration/eop/
ceq/foia. From the Center, a requester
can find contact information regarding
the CEQ’s FOIA Public Liaison, as defined in Section 1515.4(b), and access
CEQ’s Online Reading Room where
CEQ makes available records pertaining to matters within the scope of
5 U.S.C. 552(a)(2), as amended, and environmental issues and other documents
that, because of the nature of their
subject matter, are likely to be the
subject of FOIA requests. To save both
time and money, CEQ strongly urges
requesters to review documents currently available from the Center’s Online Reading Room before submitting a
request.
(b) Requesting information from the
Council. (1) Requesters must make a
Freedom of Information Act request in
writing. For quickest possible handling, it should be sent via e-mail to:
[email protected] and must include in
the subject line of the e-mail message:
‘‘Freedom of Information Act Request.’’ Written requests may also be
faxed to (202) 456–0753 or addressed and
mailed to: Council on Environmental
Quality, Executive Office of the Presi-

dent, 722 Jackson Place NW., Washington, DC 20503. Requesters should
mark both the request letter and the
envelope ‘‘Freedom of Information Act
Request’’ and include their name, address, and sufficient contact information to allow follow up regarding the
scope and status of your request.
(2) The request should identify or
reasonably describe the desired record.
It should be as specific as possible, so
that the item can be readily found.
Blanket requests, such as requests for
‘‘all materials relating to’’ a specified
subject are not recommended. Requesters should specify the preferred form or
format (including electronic format)
for the response. CEQ will accommodate such requests, if the record is
readily reproducible in that form or
format. Please be aware that FOIA requests and responses may themselves
be made available for public inspection.
(3) The CEQ FOIA Officer is responsible for acting on all initial requests;
however, he or she may consult and
refer,
pursuant
to
Section
552(a)(6)(B)(iii)(III) of the FOIA, with
another agency if he or she determines
that that agency is better able to act
on the request. Whenever the CEQ
FOIA Officer refers all or any part of
the responsibility for responding to a
request to another agency, he or she
will notify the requester of the referral, the name of the agency and agency
official to whom it has been referred,
and which portion of the request has
been referred. Unless a request is
deemed ‘‘expedited’’ as set forth in Section 1515.7 below, the CEQ FOIA Officer
will respond to requests in order of receipt. CEQ may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of time
and work needed to process the request. CEQ may provide requesters on
a slower track an opportunity to limit
the scope of their request in order to
qualify for faster processing.
(4) The Council will make a reasonable effort to assist with defining the
request to eliminate extraneous and
unwanted materials and to keep search
and copying fees to a minimum. If
budgetary constraints exist, the requester should indicate the maximum

867

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00877

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1515.6

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

fee he or she is prepared to pay to acquire the information. (See also
§ 1515.11)
(5) The Freedom of Information Act
does not require a government agency
to create or research information;
rather, it only requires that existing
records be made available to the public.
§ 1515.6 CEQ’s response to a request.
(a) Upon receipt of any written request for information or records, under
the Act, the CEQ FOIA Officer or his or
her designee, will make an initial determination on the request within 20
days (excepting Saturdays, Sundays
and Federal holidays) from the date
CEQ receives the request unless unusual or exceptional circumstances
exist. The CEQ FOIA Officer will provide written notification of the determination, including, if applicable, notification that the request has been referred to another agency for consultation as set forth above in § 1515.5(b)(3).
CEQ may make one request to the requester for information and toll the 20day period while it is awaiting such information that it has reasonably requested from the requester. It may also
toll the 20-day period if necessary to
clarify with the requester issues regarding fee assessment. In either case,
CEQ’s receipt of the requester’s response to its request for information or
clarification ends the tolling period.
(b) Requests received by the CEQ
FOIA Officer or his or her designee will
be assigned an individualized tracking
number if they will take more than 10
days to process. Requesters may call
the FOIA Public Liaison at (202) 456–
6224 and, using the tracking number,
obtain information about the request,
including the date on which CEQ originally received the request and an estimated date on which CEQ will complete action on the request.
(c) If it is appropriate to grant the request, a staff member will immediately
collect the requested materials in
order to accompany, wherever possible,
the Freedom of Information Officer’s
letter conveying decision.
(d) If a request is denied in part or in
full, the letter conveying the decision
will be signed by the CEQ FOIA Officer,
and will include: The reasons for any

denial, including any FOIA exemption(s) applied by the FOIA Officer in
denying the request; an estimate of the
volume of records or information withheld, in number of pages or in some
other reasonable form of estimation.
This estimate does not need to be provided, if the volume is otherwise indicated through exemptions on records
disclosed in part or, if providing an estimate would harm an interest protected by an applicable exemption; and
the procedure for filing an appeal.
§ 1515.7 Expedited processing.
(a) Requests and appeals will be
taken out of order and given expedited
treatment whenever it is determined
that they involve:
(1) Circumstances in which the lack
of expedited treatment could reasonably be expected to pose an imminent
threat to the life or physical safety of
an individual; or
(2) An urgency to inform the public
about an actual or alleged Federal Government activity, if made by a person
primarily engaged in disseminating information.
(b) A request for expedited processing
may be made at the time of the initial
request for records or at any later
time.
(c) A requester who seeks expedited
processing must submit a written
statement, certified to be true and correct to the best of that person’s knowledge and belief, explaining in detail the
basis for requesting expedited processing. For example, a requester within
the category described in paragraph
(a)(2) of this section, if not a full-time
member of the news media, must establish that he or she is a person whose
main professional activity or occupation is information dissemination,
though it need not be his or her sole
occupation. A requester within the category (a)(2) of this section must also
establish a particular urgency to inform the public about the government
activity involved in the request, beyond the public’s right to know about
government activity generally. Formal
certification may be waived as a matter of administrative discretion.
(d) Within 10 days of its receipt of a
request for expedited processing, the
CEQ FOIA Officer will decide whether

868

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00878

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1515.10

to grant it and will notify the requester of the decision. If a request for
expedited treatment is granted, the request will be placed in the expedited
processing track, given priority, and
processed as soon as practicable. If a
request for expedited processing is denied, any appeal of that decision will
be acted on expeditiously.

erowe on DSK5CLS3C1PROD with CFR

§ 1515.8 Appeals.
(a) The requester may appeal an adverse determination, in any respect, to
the CEQ FOIA Appeals Officer. Any appeal must be received by CEQ within 60
days of the date on the CEQ letter denying the request.
(b) Appeals must be in writing and
may
be
sent
via
e-mail
to:
[email protected]. They may also be
sent via facsimile to: (202) 456–0753 or
via U.S. mail addressed to: FOIA Appeals Officer, Council on Environmental Quality, Executive Office of the
President, 722 Jackson Place NW.,
Washington, DC 20503.
(c) The appeal letter should specify
the records requested and ask the Appeals Officer to review the determination made by the Freedom of Information Officer. The letter should explain
the basis for the appeal.
(d) The Appeals Officer will make a
final determination on an appeal within 20 working days (excepting Saturdays, Sundays and Federal holidays)
from the date CEQ receives the appeal.
The Appeals Officer (or designee) will
send a letter to the requester conveying the decision as soon as it is
made. If an appeal is denied, in part or
in whole, the letter will also include
the provisions for judicial review.
§ 1515.9 Extending CEQ’s time to respond.
(a) In unusual circumstances as defined in paragraph (c) of this section,
the time limits for responding to a request (§§ 1515.6(a) and 1515.8(d)) may be
extended by the Council for not more
than 10 working days. Extensions may
be granted by the CEQ FOIA Officer in
the case of initial requests and by the
Appeals Officer in the case of any appeals. The extension period may be
split between the initial request and
the appeal but may not exceed 10 working days overall. Extensions will be

confirmed in writing and set forth the
reasons for the extension and the date
that the final determination is expected.
(b) With respect to a request for
which a written notice under this section extends the time limits prescribed
under § 1515.6(a), the CEQ FOIA Officer
will notify the requester, if the request
cannot be processed within the time
limit specified in § 1515.6(a) and provide
an opportunity to limit the scope of
the request, so that it may be processed within that time limit or an opportunity to arrange an alternative
time frame for processing the request
or a modified request. A requester’s refusal to reasonably modify the request
or arrange such an alternative time
frame will be considered as a factor in
determining whether exceptional circumstances exist for purposes of 5
U.S.C. 552(a)(6)(C). When CEQ reasonably believes that a requester, or a
group of requesters, has submitted a
request constituting a single request
that would otherwise satisfy the unusual circumstances specified under
this section, CEQ may aggregate those
requests for purposes of this paragraph.
Multiple requests involving unrelated
matters will not be aggregated.
(c)
The
term
‘‘unusual
circumstances’’ means:
(1) The need to search for and collect
the requested records from establishments that are separate from the office
processing the request;
(2) The need to search for, collect,
and appropriately examine a voluminous amount of separate and distinct
records which are demanded in a single
request; or
(3) The need for consultation, which
will be conducted with all practicable
speed, with another agency having a
substantial interest in the determination of the request or among two or
more components of the agency having
substantial subject-matter interest
therein.
AVAILABILITY OF INFORMATION
§ 1515.10
tion.

Obtaining available informa-

(a) When a request for information
has been granted in whole or in part,

869

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00879

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

erowe on DSK5CLS3C1PROD with CFR

§ 1515.11

40 CFR Ch. V (7–1–11 Edition)

CEQ will notify the requester in writing, inform the requester in the notice
of any fee charged under § 1515.11 and
will disclose records to the requester
promptly on payment of any applicable
fees. The requested material may be
made available on CEQ’s Online FOIA
Center,
http://www.whitehouse.gov/administration/eop/ceq/foia, and also in the
form or format requested if the record
is readily reproducible in that form or
format with reasonable effort. When a
form or format of the response is not
requested, CEQ will respond in the
form or format in which the document
is most accessible to CEQ. ‘‘Readily reproducible’’ means, with respect to
electronic format, that the requested
record or records can be downloaded or
transferred intact to a computer disk
or other electronic medium using
equipment currently in use by CEQ.
(b) Records disclosed in part will be
marked or annotated to show information deleted, unless doing so would
harm an interest protected by an applicable exemption. The location of the
information deleted will also be indicated in the record, if technically feasible.
(c) The legislative history of the establishment of CEQ states that the
Congress intended CEQ to be a confidential advisor to the President on
matters of environmental policy.
Therefore, members of the public
should be aware that communications
between CEQ and the President (including communications between their
staff) may be confidential; they will
usually fall, at a minimum, within Exemption 5 of the Act. The Freedom of
Information Officer shall review each
request to determine whether the
record is exclusively factual or may
have factual portions which may be
reasonably segregated and made available to the requester. Furthermore, on
the recommendation of the CEQ FOIA
Officer or Appeals Officer, CEQ will
consider the release of an entire record,
even if it comes within an exemption
or contains policy advice, if its disclosure would not impair Executive policymaking processes or CEQ’s participation in decisionmaking.

COSTS
§ 1515.11 Definitions.
For purposes of these regulations:
Commercial use request means a request from or on behalf of a person who
seeks information for a use or purpose
that furthers the requester’s or other
person’s commercial, trade, or profit
interests.
Direct costs means those costs incurred in searching for and duplicating
(and, in the case of commercial use requests, reviewing) documents to respond to a FOIA request. Direct costs
include, for example, salaries of employees who perform the work and
costs of conducting large-scale computer searches.
Duplicate means to copy records to be
released to the FOIA requester. Copies
can take the form of paper, audio-visual materials, or electronic records,
among others.
Educational institution means a school
that operates a program of scholarly
research.
Non-commercial scientific institution
means an institution that is not operated on a commercial basis and that
operates solely for the purpose of conducting scientific research the results
of which are not intended to promote
any particular product or industry.
Representative of the news media
means any person or entity that gathers information of potential interest to
a segment of the public, uses its editorial skills to turn the raw materials
into a distinct work, and distributes
that work to an audience.
Review means to examine a record to
determine whether any portion of the
record may be withheld and to process
a record for disclosure, including by redacting it.
Search means to look for and retrieve
records covered by a FOIA request, including by looking page-by-page or
line-by-line to identify responsive material within individual records.
§ 1515.12 Fees in general.
CEQ shall charge fees that recoup the
full allowable direct costs it incurs in
responding to FOIA requests. CEQ may
assess charges for time spent searching
for records even if CEQ fails to locate
the records or if the records are located

870

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00880

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

erowe on DSK5CLS3C1PROD with CFR

Council on Environmental Quality

§ 1515.14

and determined to be exempt from disclosure. In general, CEQ shall apply the
following fee schedule, subject to
§§ 1515.13 through 1515.15:
(a) Manual searches. Time devoted to
manual searches shall be charged on
the basis of the salary of the employee(s) conducting the search (basic
hourly rate(s) of pay for the employee(s), plus 16 percent).
(b) Electronic searches. Fees shall reflect the direct cost of conducting the
search. This will include the cost of operating the central processing unit for
that portion of operating time that is
directly attributable to searching for
and printing records responsive to the
FOIA request and operator/programmer
salary attributable to the search.
(c) Record reviews. Time devoted to
reviewing records shall be charged on
the same basis as under paragraph (a)
of this section, but shall only be applicable to the review of records located
in response to commercial use requests.
(d) Duplication. Fees for copying
paper records or for printing electronic
records shall be assessed at a rate of
$.15 per page. For other types of copies
such as disks or audio visual tapes,
CEQ shall charge the direct cost of producing the document(s). If total costs
are expected to exceed $25, the FOIA
Officer shall provide the requester with
an estimate in writing and, in return,
obtain from the requester a commitment to pay the estimated fee. This
does not apply if the requester has indicated in advance a willingness to pay
fees as high as those anticipated. If a
requester wishes to limit costs, the
FOIA Officer shall provide the requester an opportunity to reformulate
the request in order to reduce costs. If
the requester reformulates a request, it
shall be considered a new request and
the 20-day period described in § 1515.6(a)
shall be deemed to begin when the
FOIA Officer receives the request.
(e)(1) Advance payments required. The
FOIA Officer may require a requester
to make an advance deposit of up to
the amount of the entire anticipated
fee before the FOIA Officer begins to
process the request if:
(i) The FOIA Officer estimates that
the fee will exceed $250; or

(ii) The requester has previously
failed to pay a fee in a timely fashion.
(2) When the FOIA Officer requires a
requester to make an advance payment, the 20-day period described in
§ 1515.6(a) shall begin when the FOIA
Officer receives the payment.
(f) No assessment of fee. CEQ shall not
charge a fee to any requester if:
(1) The cost of collecting the fee
would be equal to or greater than the
fee itself; or
(2) After the effective date of these
regulations CEQ fails to comply with a
time limit under the Freedom of Information Act for responding to the request for records where no unusual or
exceptional circumstances apply.
§ 1515.13 Fees for categories of requesters.
CEQ shall assess fees for certain categories of requesters as follows:
(a) Commercial use requesters. In responding to commercial use requests,
CEQ shall assess fees that recover the
full direct costs of searching for, reviewing, and duplicating records.
(b) Educational and non-commercial
scientific institutions. CEQ shall provide
records to requesters in this category
for the cost of duplication alone, excluding charges for the first 100 pages.
To qualify for inclusion in this fee category, a requester must show that the
request is authorized by and is made
under the auspices of a qualifying institution and that the records are
sought to further scholarly research,
not an individual goal.
(c) Representatives of the news media.
CEQ shall provide records to requesters
in this category for the cost of duplication alone, excluding charges for the
first 100 pages.
(d) All other requesters. CEQ shall
charge requesters who do not fall within paragraphs (a) through (c) of this
section fees that recover the full direct
cost of searching for and duplicating
records, excluding charges for the first
100 pages of reproduction and the first
two hours of search time.
§ 1515.14

Other charges.

CEQ may apply other charges, including the following:

871

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00881

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1515.15

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

(a) Special charges. CEQ shall recover
the full cost of providing special services, such as sending records by express
mail, to the extent that CEQ elects to
provide them in that manner.
(b) Interest charges. CEQ may begin
assessing interest charges on an unpaid
bill starting on the 31st day following
the day on which the FOIA Officer sent
the billing. Interest shall be charged at
the rate prescribed in 31 U.S.C. 3717 and
will accrue from the date of billing.
(c) Aggregating requests. When the
FOIA Officer reasonably believes that a
requester or a group of requesters acting in concert is attempting to divide a
request into a series of requests for the
purpose of avoiding fees, the FOIA Officer shall aggregate those requests and
charge accordingly.
§ 1515.15 Payment and waiver.
(a) Remittances. Payment shall be
made in the form of check or money
order made payable to the Treasury of
the United States. At the time the
FOIA Officer notifies a requester of the
applicable fees, the Officer shall inform
the requester of where to send the payment.
(b) Waiver of fees. CEQ may waive all
or part of any fee provided for in
§§ 1515.12 and 1515.13 when the FOIA Officer deems that disclosure of the information is in the general public’s interest because it is likely to contribute
significantly to public understanding
of the operations or activities of the
government and is not primarily in the
commercial interest of the requester.
In determining whether a fee should be
waived, the FOIA Officer may consider
whether:
(1) The subject matter specifically
concerns identifiable operations or activities of the government;
(2) The information is already in the
public domain;
(3) Disclosure of the information
would contribute to the understanding
of the public-at-large as opposed to a
narrow segment of the population;
(4) Disclosure of the information
would
significantly
enhance
the
public’s understanding of the subject
matter;
(5) Disclosure of the information
would further a commercial interest of
the requester; and

(6) The public’s interest is greater
than any commercial interest of the requester.
§ 1515.16

Other rights and services.

Nothing in this subpart will be construed to entitle any person, as of
right, to any service or to the disclosure of any record to which such person
is not entitled under the FOIA.
§ 1515.17–1515.19

[Reserved]

PART 1516—PRIVACY ACT
IMPLEMENTATION
Sec.
1516.1 Purpose and scope.
1516.2 Definitions.
1516.3 Procedures for requests pertaining to
individual records in a record system.
1516.4 Times, places, and requirements for
the identification of the individual making a request.
1516.5 Disclosure of requested information
to the individual.
1516.6 Request for correction or amendment
to the record.
1516.7 Agency review of request for correction or amendment of the record.
1516.8 Appeal of an initial adverse agency
determination on correction or amendment of the record.
1516.9 Disclosure of a record to a person
other than the individual to whom the
record pertains.
1516.10 Fees.
AUTHORITY: 5 U.S.C. 552a; Pub. L. 93–579.
SOURCE: 42 FR 32537, June 27, 1977, unless
otherwise noted.

§ 1516.1

Purpose and scope.

The purposes of these regulations are
to:
(a) Establish a procedure by which an
individual can determine if the Council
on Environmental Quality (hereafter
known as the Council) maintains a system of records which includes a record
pertaining to the individual; and
(b) Establish a procedure by which an
individual can gain access to a record
pertaining to him or her for the purpose of review, amendment and/or correction.
§ 1516.2 Definitions.
For the purpose of these regulations:
(a) The term individual means a citizen of the United States or an alien

872

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00882

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1516.7

lawfully admitted for permanent residence;
(b) The term maintain means maintain, collect, use or disseminate;
(c) The term record means any item
or collection or grouping of information about an individual that is maintained by the Council (including, but
not limited to, his or her employment
history, payroll information, and financial transactions), and that contains his or her name, or an identifying
number, symbol, or other identifying
particular assigned to the individual
such as a social security number;
(d) The term system of records means
a group of any records under the control of the Council from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual; and
(e) The term routine use means with
respect to the disclosure of a record,
the use of such record for a purpose
which is compatible with the purpose
for which it was collected.
§ 1516.3 Procedures for requests pertaining to individual records in a
record system.
An individual shall submit a written
request to the Administrative Officer
of the Council to determine if a system
of records named by the individual contains a record pertaining to the individual. The individual shall submit a
written request to the Administrative
Officer of the Council which states the
individual’s desire to review his or her
record. The Administrative Officer of
the Council is available to answer questions regarding these regulations and
to provide assistance in locating
records in the Council’s system of
records.

erowe on DSK5CLS3C1PROD with CFR

[42 FR 32537, June 27, 1977; 42 FR 35960, July
13, 1977]

§ 1516.4 Times, places, and requirements for the identification of the
individual making a request.
An individual making a request to
the Administrative Officer of the Council pursuant to § 1516.3 shall present the
request at the Council’s office, 722
Jackson Place NW., Washington, DC
20006, on any business day between the
hours of 9 a.m. and 5 p.m. and should be

prepared to identify himself by signature. Requests will also be accepted in
writing if mailed to the Council’s offices and signed by the requester.
§ 1516.5 Disclosure of requested information to the individual.
Upon verification of identity, the
Council shall disclose to the individual
the information contained in the
record which pertains to that individual.
(a) The individual may be accompanied for this purpose by a person of
his choosing.
(b) Upon request of the individual to
whom the record pertains, all information in the accounting of disclosures
will be made available.
[42 FR 35960, July 13, 1977]

§ 1516.6 Request for correction
amendment to the record.

The individual may submit a request
to the Administrative Officer of the
Council which states the individual’s
desire to correct or to amend his or her
record. This request must be made in
accordance with the procedures of
§ 1516.4 and shall describe in detail the
change which is requested.
[42 FR 32537, June 27, 1977. Redesignated at 42
FR 35960, July 13, 1977]

§ 1516.7 Agency review of request for
correction or amendment of the
record.
Within ten working days of the receipt of a request to correct or to
amend a record, the Administrative Officer of the Council will acknowledge
in writing such receipt and promptly
either:
(a) Make any correction or amendment of any portion thereof which the
individual believes is not accurate, relevant, timely, or complete; or
(b) Inform the individual of his or her
refusal to correct or amend the record
in accordance with the request, the
reason for the refusal, and the procedure established by the Council for the
individual to request a review of that
refusal.

873

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00883

Fmt 8010

or

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1516.8

40 CFR Ch. V (7–1–11 Edition)

§ 1516.8 Appeal of an initial adverse
agency determination on correction
or amendment of the record.
An individual may appeal refusal by
the Administrative Officer of the Council to correct or to amend his or her
record by submitting a request for a review of such refusal to the General
Counsel, Council on Environmental
Quality, 722 Jackson Place NW., Washington, DC 20006. The General Counsel
shall, not later than thirty working
days from the date on which the individual requests such a review, complete
such review and make a final determination unless, for good cause shown,
the General Counsel extends such thirty day period. If, after his or her review, the General Counsel also refuses
to correct or to amend the record in accordance with the request, the individual may file with the Council a concise statement setting forth the reasons for his or her disagreement with
the General Counsel’s decision and may
seek judicial relief under 5 U.S.C.
552a(g)(1)(A).
§ 1516.9 Disclosure of a record to a
person other than the individual to
whom the record pertains.
The Council will not disclose a record
to any individual other than to the individual to whom the record pertains
without receiving the prior written
consent of the individual to whom the
record pertains, unless the disclosure
either has been listed as a ‘‘routine
use’’ in the Council’s notices of its systems of records or falls within the special conditions of disclosure set forth
in section 3 of the Privacy Act of 1974.
§ 1516.10 Fees.
If an individual requests copies of his
or her record, he or she shall be
charged ten cents per page, excluding
the cost of any search for the record, in
advance of receipt of the pages.

erowe on DSK5CLS3C1PROD with CFR

PART 1517—PUBLIC MEETING PROCEDURES OF THE COUNCIL ON
ENVIRONMENTAL QUALITY
Sec.
1517.1
1517.2
1517.3
1517.4

Policy and scope.
Definitions.
Open meeting requirement.
Exceptions.

1517.5 Procedure for closing meetings.
1517.6 Notice of meetings.
1517.7 Records of closed meetings.
AUTHORITY: 5 U.S.C. 552b(g); Pub. L. 94–409.
SOURCE: 42 FR 20818, Apr. 22, 1977, unless
otherwise noted.

§ 1517.1

Policy and scope.

Consistent with the policy that the
public is entitled to the fullest information regarding the decisionmaking
processes of the Federal Government,
it is the purpose of this part to open
the meetings of the Council on Environmental Quality to public observation while protecting the rights of individuals and the ability of the Council
to carry out its primary responsibility
of providing advice to the President.
Actions taken by the Chairman acting
as Director of the Office of Environmental Quality and Council actions involving advice to the President when
such advice is not formulated collegially during a meeting are outside the
scope of this part. In addition to conducting the meetings required by this
part, it is the Council’s policy to conduct, open to public observation, periodic meetings involving Council discussions of Council business, including
where appropriate, matters outside the
scope of this part. This part does not
affect the procedures set forth in part
1515 pursuant to which records of the
Council are made available to the public for inspection and copying, except
that the exemptions set forth in
§ 1517.4(a) shall govern in the case of
any request made to copy or inspect
the transcripts, recording or minutes
described in § 1517.7.
[47 FR 6277, Feb. 11, 1982]

§ 1517.2

Definitions.

For the purpose of this part:
(a) The term Council shall mean the
Council on Environmental Quality established under title II of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 through 4347).
(b) The term meeting means the deliberations of at least two Council members where such deliberations determine or result in the joint conduct or
disposition of official collegial Council
business, but does not include deliberations to take actions to open or close a

874

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00884

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1517.4

meeting under §§ 1517.4 and 1517.5 or to
release or withhold information under
§§ 1517.4 and 1517.7. ‘‘Meeting’’ shall not
be construed to prevent Council members from considering individually
Council business that is circulated to
them sequentially in writing.
(c) Director means the Chairman of
the Council on Environmental Quality
acting as the head of the Office of Environmental Quality pursuant to the Environmental Quality Improvement Act
of 1970, Pub. L. 91–224, 42 U.S.C. 4371
through 4374.
[44 FR 34946, June 18, 1979, as amended at 47
FR 6277, Feb. 11, 1982]

§ 1517.3

Open meeting requirement.

(a) Every portion of every meeting of
the Council is open to public observation subject to the exemptions provided in § 1517.4. Members of the Council may not jointly conduct or dispose
of the business of the Council other
than in accordance with this part.
(b) The Council will conduct open to
public observation periodic meetings
involving Council discussions of Council business including where appropriate matters outside the scope of this
part. Such meetings will be noticed
pursuant to § 1517.6.
(c) Members of the public may attend
open meetings of the Council for the
sole purpose of observation and may
not participate in or photograph any
meeting without prior permission of
the Council. Members of the public who
desire to participate in or photograph
an open meeting of the Council may request permission to do so from the
General Counsel of the Council before
such meeting. Members of the public
may record open meetings of the Council by means of any mechanical or electronic device unless the Council determines such recording would disrupt the
orderly conduct of such meeting.
[44 FR 34946, June 18, 1979, as amended at 47
FR 6277, Feb. 11, 1982]

erowe on DSK5CLS3C1PROD with CFR

§ 1517.4

Exceptions.

(a) A meeting or portion thereof may
be closed to public observation, and information pertaining to such meeting
or portion thereof may be withheld
from the public, if the Council determines that such meeting or portion

thereof or disclosure of such information is likely to:
(1) Disclose matters that are (i) specifically authorized under criteria established by an Executive order to be
kept secret in the interest of national
defense or foreign policy and (ii) in fact
properly classified pursuant to that Executive order;
(2) Relate solely to the internal personnel rules and practices of the Council;
(3) Disclose matters specifically exempted from disclosure by statute
(other than the Freedom of Information Act, 5 U.S.C. 552), provided that
the statute: (i) Requires that the matters be withheld from the public in
such a manner as to leave no discretion
on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to
be withheld;
(4) Disclose the trade secrets and
commercial or financial information
obtained from a person and privileged
or confidential;
(5) Involve accusing any person of a
crime, or formally censuring any person;
(6) Disclose information of a personal
nature if disclosure would constitute a
clearly unwarranted invasion of personal privacy;
(7) Disclose investigatory records
compiled for law enforcement purposes,
or information which if written would
be contained in such records, but only
to the extent that the production of
those records or information would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a
fair trial or an impartial adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source and, in the case of a
record compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency
conducting a lawful national security
intelligence investigation, confidential
information furnished only by the confidential source,
(v) Disclose investigative techniques
and procedures, or,
(vi) Endanger the life or physical
safety of law enforcement personnel;

875

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00885

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1517.5

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

(8) Disclose information contained in
or related to examination, operating,
or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;
(9) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed action of the
Council. This exception shall not apply
in any instance where the Council has
already disclosed to the public the content or nature of the proposed action,
or where the Council is required by law
to make such disclosure on its own initiative prior to taking final action on
the proposal; or
(10) Specifically concern the issuance
of a subpoena by the Council, or the
participation of the Council in a civil
action or proceeding, an action in a
foreign court or international tribunal,
or an arbitration, or the initiation,
conduct, or disposition by the Council
of a particular case of formal adjudication pursuant to the procedures in 5
U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing.
(b) Before a meeting is closed to public observation the Council shall determine whether or not the public interest
requires that the meeting be open. The
Council may open a meeting to public
observation which could be closed
under paragraph (a) of this section, if
the Council finds it to be in the public
interest to do so.
§ 1517.5 Procedure for closing meetings.
(a) A majority of the entire membership of the Council may vote to close
to public observation a meeting or a
portion or portions thereof, or to withhold information pertaining to such
meeting. A separate vote of the members of the Council shall be taken with
respect to each meeting of the Council,
a portion or portions of which are proposed to be closed to the observation of
the public or with respect to any information concerning such meetings or
portion thereof. A single vote may be
taken with respect to a series of meetings, a portion or portions of which are
proposed to be closed to the public, or
with respect to information concerning

such series of meetings, so long as each
meeting in such series involves the
same particular matters and is scheduled to be held no more than thirty
days after the initial meeting in such
series. The vote of each member of the
Council participating in a vote shall be
recorded and no proxies shall be allowed.
(b) Whenever any person whose interest may be directly affected by a portion of a meeting requests that the
Council close that portion to public observation for any of the reasons referred to in § 1517.4(a) the Council, upon
request of any of the members of the
Council, shall decide by recorded vote
whether to close that portion of the
meeting.
(c) For every meeting or portion
thereof closed under this part, the General Counsel of the Council before such
meeting is closed shall publicly certify
that, in his or her opinion, the meeting
may properly be closed to the public
stating each relevant exemptive provision. The Council shall retain a copy of
the General Counsel’s certification, together with a statement from the presiding officer of the meeting setting
forth the time and place of the meeting
and listing the persons present.
(d) Within one day of any vote taken
on a proposal to close a meeting, the
Council shall make publicly available a
record reflecting the vote of each member on the question. In addition, within
one day of any vote which closes a portion or portions of a meeting to the
public, the Council shall make publicly
available a full written explanation of
its closure action together with a list
naming all persons expected to attend
and identifying their affiliation, unless
such disclosure would reveal the information that the meeting itself was
closed to protect.
(e) Following any announcement that
the Council intends to close a meeting
or portion thereof, any person may
make a request that the meeting or
portion thereof be opened. Such request shall be made of the Chairman of
the Council who shall ensure that the
request is circulated to all members of
the Council on the same business day
on which it is received. The request
shall set forth the reasons why the requestor believes the meeting should be

876

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00886

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1517.7

erowe on DSK5CLS3C1PROD with CFR

open. The Council upon the request of
any member or its General Counsel,
shall vote on the request.
§ 1517.6 Notice of meetings.
(a) Except as otherwise provided in
this section, the Council shall make a
public announcement at least one week
before a meeting, to include the following:
(1) Time, place, and subject matter of
the meeting;
(2) Whether the meeting is to be open
or closed; and
(3) Name and telephone number of
the official who will respond to requests for information about the meeting.
(b) A majority of the members of the
Council may determine by recorded
vote that the business of the Council
requires a meeting to be called with
less than one week’s notice. At the earliest practicable time, the Council
shall publicly announce the time, place
and subject matter of the meeting, and
whether or not it is to be open or
closed to the public.
(c) If announcement of the subject
matter of a closed meeting would reveal the information that the meeting
itself was closed to protect, the subject
matter shall not be announced.
(d) Following the public announcement required by paragraph (a) or (b)
of this section:
(1) A majority of the members of the
Council may change the time or place
of a meeting. At the earliest practicable time, the Council shall publicly
announce the change.
(2) A majority of the entire membership of the Council may change the
subject matter of a meeting, or the determination to open or close a meeting
to the public, if it determines by a recorded vote that the change is required
by the business of the Council and that
no earlier announcement of the change
was possible. At the earliest practicable time, the Council shall publicly
announce the change, and the vote of
each member upon the change.
(e) Individuals or organizations having a special interest in activities of
the Council may request the Council to
place them on a mailing list for receipt
of information available under this section.

(f) Following public announcement of
a meeting, the time or place of a meeting may be changed only if the change
is announced publicly at the earliest
practicable time. The subject matter of
a meeting or the determination to open
or close a meeting may be changed following public announcement of a meeting only if both of the following conditions are met:
(1) There must be a recorded vote of
a majority of the Council that the business of the Council requires the change
and that no earlier announcement of
such change was possible; and
(2) There must be a public announcement of the change and of the individual Council members’ votes at the
earliest practicable time.
(g) Immediately following each public announcement required by this section, the following information, as applicable, shall be submitted for publication in the FEDERAL REGISTER.
(1) Notice of the time, place, and subject matter of a meeting;
(2) Whether the meeting is open or
closed;
(3) Any change in one of the preceding; and
(4) The name and telephone number
of the official who will respond to requests for information about the meeting.
§ 1517.7 Records of closed meetings.
(a) A record of each meeting or portion thereof which is closed to the public shall be made and retained for two
years or for one year after the conclusion of any Council proceeding involved in the meeting whichever occurs
later. The record of any portion of a
meeting closed to the public shall be a
verbatim transcript or electronic recording. In lieu of a transcript or recording, a comprehensive set of minutes may be produced if the closure decision was made pursuant to § 1517.4(a)
(8) or (10).
(b) If minutes are produced, such
minutes shall fully and clearly describe
all matters discussed, provide a full
and accurate summary of any actions
taken and the reasons expressed therefor, and include a description of each of
the views expressed on any item. The
minutes shall also reflect the vote of
each member of the Council on any roll

877

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00887

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Pt. 1518

40 CFR Ch. V (7–1–11 Edition)

call vote taken during the proceedings
and identify all documents produced at
the meeting.
(c) The following documents shall be
retained by the Council as part of the
transcript, recording, or minutes of the
meeting:
(1) Certification by the General Counsel that the meeting may properly be
closed; and
(2) Statement from the presiding officer of the meeting setting forth the
date, time, and place of the meeting
and listing the persons present.
(d) The Council shall make promptly
available to the public at its offices at
722 Jackson Place, NW., Washington,
DC the transcript, electronic recording,
or minutes maintained as a record of a
closed meeting, except for such information as may be withheld under one
of the provisions of § 1517.5. Copies of
such transcript, minutes, or transcription of an electronic recording,
disclosing the identity of each speaker,
shall be furnished to any person at the
actual cost of duplication or transcription.
(e) [Reserved]
(f) Requests to review or obtain copies of records other than transcripts,
electronic recordings or minutes of a
meeting will be processed under the
Freedom of Information Act (5 U.S.C.
552) or, where applicable, the Privacy
Act of 1974. (5 U.S.C. 552a). Nothing in
these regulations authorizes the Council to withhold from any individual any
record, including the transcripts or
electronic recordings described in
§ 1517.8, to which the individual may
have access under the Privacy Act of
1974 (5 U.S.C. 552a).

PART 1518—OFFICE OF ENVIRONMENTAL QUALITY MANAGEMENT
FUND

erowe on DSK5CLS3C1PROD with CFR

Sec.
1518.1
1518.2
1518.3
1518.4

Purpose.
Definitions.
Policy.
Procedures.

AUTHORITY: 42 U.S.C. 4375(c).
SOURCE: 67 FR 62189, Oct. 4, 2002, unless
otherwise noted.

§ 1518.1 Purpose.
The purpose of the OEQ Management
Fund is to finance:
(a) Study contracts that are jointly
sponsored by OEQ and one or more
other Federal agency; and
(b) Federal interagency environmental projects (including task forces)
in which OEQ participates. See 42
U.S.C. 4375(a).
§ 1518.2 Definitions.
(a) Advance Payment: Amount of
money prepaid pursuant to statutory
authorization in contemplation of the
later receipt of goods, services, or
other assets.
(b) Director: The Director of the Office of Environmental Quality. The Environmental Quality Improvement Act
specifies that the Chairman of the
Council on Environmental quality
shall serve as the Director of OEQ. 42
U.S.C. 4372(a).
(c) OEQ Management Fund (‘‘Fund’’):
The Management Fund for the Office of
Environmental Quality.
(d) Interagency Agreement: A document jointly executed by OEQ and another agency or agencies, which sets
forth the details of a joint study or
project and the funding arrangements
for such a study or project.
(e) Project Officer: The Council on Environmental Quality staff member
charged with day-to-day supervision of
an OEQ Management Fund study or
project.
(f) Source: The agency or account
from which funds are contributed into
the Fund.
§ 1518.3 Policy.
(a) All studies and projects financed
through the OEQ Management Fund
shall be consistent with the purposes
and goals of the National Environmental Policy Act and/or the Environmental Quality Improvement Act.
(b) Agency funds accepted by the Director for transfer into the OEQ Management Fund shall specify the purposes permissible under the source appropriation and any restrictions relating thereto.
(c) The Director may authorize expenditures to support OEQ Management Fund studies and projects, including:

878

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00888

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

Council on Environmental Quality

§ 1518.4

erowe on DSK5CLS3C1PROD with CFR

(1) Leasing office space and providing
utilities;
(2) Leasing or purchasing equipment;
(3) Funding travel;
(4) Contracting for goods and services; and
(5) Funding consultants and personnel costs for task force employees.
(d) In carrying out the purposes of
the OEQ Management Fund, the Director is authorized to contract with public or private agencies, institutions, organizations and individuals, by negotiation, without regard to 31 U.S.C.
3324(a) and (b) 41 U.S.C. 5, and 42 U.S.C.
4372(e). All such contracting activities
shall be accomplished through the Office of Administration, Executive Office of the President. The Director
may, by interagency agreement with
another federal agency or agencies and
with the concurrence of the Office of
Administration’s Financial Management Division, obtain specific administrative services (including contracting
activities) in support of OEQ Management Fund studies or projects.
(e) Task forces and projects funded
by the OEQ Management Fund are permitted to make expenditures for all
project and study activities, except for
compensation or benefits for full-time
OEQ employees or to reimburse OEQ or
CEQ for ordinarily appropriated expenses, such as salaries, benefits, rent,
telephone and supplies.
§ 1518.4 Procedures.
(a) Charters: (1) A charter must be
prepared for each project or study to be
financed and supported by the OEQ
Management Fund.
(2) The charter must clearly state the
relation of the study or project to the
goals and purposes of the Office of Environmental Quality and the National
Environmental Policy Act; describe the
study or project; identify the participating agency or agencies; provide the
names, titles and phone numbers of the
Project Officer and administrative contact.
(3) Charters may be amended by preparing a formal amendment, which sets
forth the new language to be incorporated in the existing charter.
(4) The Director shall approve all
Management
Fund
charters
and
amendments in writing.

(5) Copies of each charter and charter
amendment approved by the Director
shall be provided to the Contracts
Branch and the Financial Management
Division of the Office of Administration, Executive Office of the President.
(b) Finances and accounting: (1) Annual budget estimates shall be prepared for the OEQ Management Fund.
(2) An operating budget for each
project or study shall be submitted to
the Financial Management Division of
the Office of Administration, Executive
Office of the President.
(3) All contributions from other agencies to the OEQ Management Fund for
a joint study or project shall be accomplished by interagency agreements,
which shall provide for full payment of
funds on an advance basis. 42 U.S.C.
4375(a).
(4) All contributions by the Office of
Environmental Quality or the Council
on Environmental Quality to the OEQ
Management Fund for a joint study or
project shall be accomplished by a letter of transmittal which specifies the
particular study or project to be funded. A copy of this transmittal letter
shall be provided to the Financial Management Division of the Office of Administration, Executive Office of the
President.
(5) The OEQ Management Fund is a
no-year appropriations account, which
can accept one-year or multiple-year
funds, and is available until the objectives for which the authority was made
available are attained. Funds transferred into the Management Fund are
individually accounted for and expire
under the terms of their appropriation.
(6) Any agency, including the Office
of Environmental Quality and the
Council on Environmental Quality,
may provide technical expertise, physical resources, facilities, equipment, or
other assets; perform support or administrative
services;
or
assign
detailees or agency representatives to
an OEQ Management Fund project or
study. These contributions may be in
addition to funding.
(7) Subaccounts shall be established
within OEQ Management Fund for each
project or study. All expenditures for a
particular project or study must be
matched with the source contribution

879

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00889

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176

§ 1518.4

40 CFR Ch. V (7–1–11 Edition)

erowe on DSK5CLS3C1PROD with CFR

and approved by the Director or the
Project Officer.
(8) The Director may transfer Management Fund resources for any study
or project to other federal accounts or
other OEQ subaccounts provided that
the transfer:
(i) Is approved in writing by the
source agency that provided the portion of the funds being transferred;
(ii) Promotes the statutory mission
of OEQ; and
(iii) Is justified by the Director as
being in the best interests of the government.

(9) Financial transactions shall be
classified under each Management
Funds subaccount in sufficient detail
to satisfy management planning, control requirements and financial audit
requirements.
(10) All fund expenditures must comport with the purposes of the Management Fund and follow CEQ approval
procedures. Any fund expenditures pursuant to interagency agreement for the
provision of administrative services
shall comport with the CEQ approval
procedures specified in the interagency
agreement.

880

VerDate Mar<15>2010

10:27 Aug 12, 2011

Jkt 223176

PO 00000

Frm 00890

Fmt 8010

Sfmt 8010

Y:\SGML\223176.XXX

223176