1625-0015 Stat/Authority

§ 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.

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§ 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,

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Council on Environmental Quality

§ 1506.3

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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

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§ 1506.4

40 CFR Ch. V (7–1–11 Edition)

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

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§ 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.

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Council on Environmental Quality

§ 1506.8

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(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

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§ 1506.9

40 CFR Ch. V (7–1–11 Edition)

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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.

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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.

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§ 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:

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