1625-0015 Stat/Authority

Council on Environmental Quality

§ 1504.1

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(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

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§ 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.

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[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

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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]

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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.

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