[Federal Register: December 19, 2006 (Volume 71, Number 243)]
[Proposed Rules]
[Page 76081-76106]
[DOCID:fr19de06-30]

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Part V

Environmental Protection Agency

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40 CFR Part 6

Procedures for Implementing the National Environmental Policy Act and
Assessing the Environmental Effects Abroad of EPA Actions; Proposed
Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 6

[EPA-HQ-OECA-2005-0062; FRL-8257-1]
RIN 2020-AA42

Procedures for Implementing the National Environmental Policy Act
and Assessing the Environmental Effects Abroad of EPA Actions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
proposing amendments to its procedures for implementing the
requirements of the National Environmental Policy Act of 1969 (NEPA).
This proposed rule also includes minor, technical amendments to the
Agency's procedures for implementing Executive Order 12114,
``Environmental Effects Abroad of Major Federal Actions.''
    This proposed rule would amend EPA's NEPA implementing procedures
by: consolidating and standardizing the procedural provisions and
requirements of the Agency's environmental review process under NEPA;
clarifying the general procedures associated with categorical
exclusions, consolidating the categories of actions subject to
categorical exclusion, amending existing and adding new categorical
exclusions, and consolidating and amending existing and adding new
extraordinary circumstances; consolidating and amending the listing of
actions that generally require an environmental impact statement;
clarifying the procedural requirements for consideration of applicable
environmental review laws and executive orders; and incorporating other
proposed revisions consistent with the Council on Environmental
Quality's regulations (CEQ's Regulations).

DATES: Comments must be received on or before February 20, 2007. Under
the Paperwork Reduction Act, comments on the information collection
provisions must be received by the Office of Management and Budget
(OMB) on or before January 18, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2005-0062, by one of the following methods:
     http://www.regulations.gov: Follow the on-line

instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>, Attention: Robert Hargrove.
     Mail: EPA-HQ-OECA-2005-0062, Environmental Protection
Agency, EPA Docket Center (EPA/DC), Enforcement and Compliance Docket
and Information Center, Mailcode: 2201T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. In addition, please mail a copy of your comments
on the information collection provisions to the Office of Information
and Regulatory Affairs, Office of Management and Budget (OMB), Attn:
Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
     Hand Delivery: Public Reading Room, Room B102, Enforcement
and Compliance Docket and Information Center, EPA West Building, 1301
Constitution Avenue, NW., Washington, DC 20004. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2005-0062. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site

is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be

automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.

    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the

Public Reading Room, Room B102, Enforcement and Compliance Docket and
Information Center, EPA West Building, 1301 Constitution Avenue, NW.,
Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the OECA Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Hargrove; NEPA Compliance
Division; Office of Federal Activities (Mailcode 2252A); Environmental
Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
telephone<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION: This preamble is organized according to the
following outline:

I. General Information
    A. Does This Proposed Rule Apply to Me?
    B. Tips for Preparing Your Comments
II. Introduction
    A. Statutory authority
    B. Background
    C. Exemptions From NEPA for Certain EPA Actions
    D. EPA's Voluntary NEPA Policy and Procedures
III. Purpose and Policy
IV. Proposed Changes to the Regulations and Objectives of These
Proposed Changes
    A. Proposed Revision to the Title for EPA's Regulations at Part
6
B. Restructuring and Standardizing EPA's NEPA Implementing
Regulations
    1. Consolidate and Standardize the Procedural Provisions and
Requirements of the Agency's Environmental Review Process Under NEPA
    2. Clarify the General Procedures Associated With Categorical
Exclusions; Consolidate the Categories of Actions Subject to
Categorical Exclusion; Amend Existing and Add New Categorical
Exclusions; and Consolidate and Amend Existing and Add New
Extraordinary Circumstances
    3. Consolidate and Amend the Listing of Actions that Generally
Require an Environmental Impact Statement

    4. Clarify the Procedural Requirements for Consideration of
Applicable Environmental Review Laws and Executive Orders
    5. Other Proposed Revisions Consistent With the CEQ Regulations
C. Proposed amendments to EPA's Procedures for Implementing
Executive Order 12114
    1. Amendment to Re-Designate the Subpart for EPA's Procedures
Implementing Executive Order 12114
    2. Amendments to Update Office Names and Titles
    3. Amendment to Reference in the Executive Order 12114
Implementing Procedures to EPA's Voluntary NEPA Policy
    4. Amendment to Reference in the Executive Order 12114
Implementing Procedures to EPA's NEPA Implementing Procedures
    5. Amendments for Correction of Cross-References and
Typographical Errors
V. Proposed Amended and New Categories of Actions Eligible for
Categorical Exclusion; Amended and New Extraordinary Circumstances;
and Amended Listing of Actions That Generally Require an
Environmental Impact Statement
VI. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution and Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. Does This Proposed Rule Apply to Me?

    Those subject to the proposed rule include EPA employees who must
comply with NEPA or Executive Order 12114, and certain grant and permit
applicants who must submit environmental information documentation to
EPA for their proposed projects.
    EPA's Procedures for Implementing NEPA. As with EPA's current NEPA
implementing regulations, compliance with the proposed regulations
would be the responsibility of EPA's Responsible Officials. For
applicant-proposed actions, certain procedures in the proposed NEPA
regulations would require those defined in the proposed regulations as
applicants (that is, grant and permit applicants) to provide
environmental information for EPA's use in its environmental review
process.
    Currently, EPA's NEPA implementing regulations apply, by subpart,
to specific types of EPA proposed actions. For example, Subpart E
applies to the award of wastewater treatment construction grants under
Title II of the Clean Water Act, and Subpart F applies to EPA's
environmental review process for issuance of new source National
Pollutant Discharge Elimination System (NPDES) permits. The proposed
regulations would consolidate and standardize the environmental review
process applicable to all EPA proposed actions subject to NEPA,
including those actions now specifically addressed in the current
regulations and other actions subject to NEPA but not specifically
addressed in the current regulations (e.g., certain EPA grant awards
for special projects identified in the State and Tribal Assistance
Grants (STAG) account authorized by Congress through the Agency's
annual Appropriations Act, including grants for the Border
Environmental Cooperation Commission/Border Environmental
Infrastructure Fund and Colonias grant projects). As with EPA's current
regulations, the proposed regulations would supplement and be used in
conjunction with the government-wide Council on Environmental Quality
(CEQ) NEPA Regulations (40 CFR Parts 1500-1508).
    For additional information of interest to applicants, please see
Preamble IV.B.5, ``Other proposed revisions consistent with the CEQ
Regulations. This section provides further information on proposed
revisions that apply to applicants.
    EPA's Procedures for Implementing Executive Order 12114. As with
EPA's current Executive Order 12114 implementing procedures, compliance
with these procedures would be the responsibility of EPA's Responsible
Officials. As with the current procedures, for applicant-proposed
actions, applicants may be required to provide environmental
information for EPA's use in its environmental review process. EPA's
Executive Order 12114 implementing procedures ensure that environmental
information is available to the Agency's decision-makers and other
appropriate Federal agencies and officials for proposed actions subject
to Executive Order 12114.
    Today's proposed rule also includes minor, technical amendments to
the Agency's procedures for implementing Executive Order 12114 (42
U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR 1979, Comp., p. 356).
EPA actions typically subject to Executive Order 12114 include major
EPA actions that affect the environment of a foreign nation or the
global commons and may include: major research or demonstration
projects, ocean dumping activities carried out under section 102 of the
Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 et
seq.), and major permitting or licensing of facilities by EPA (such as
EPA-issued permits for hazardous waste treatment, storage, or disposal
facilities under section 3005 of the Resource Conservation and Recovery
Act (42 U.S.C. 6925), National Pollutant Discharge Elimination System
permits under section 402 of the Clean Water Act (33 U.S.C. 1342), and
prevention of significant deterioration approvals under Part C of the
Clean Air Act (42 U.S.C. 7470 et seq.).
    To determine whether your project would be subject to these
procedures, you should carefully examine the applicability criteria in
Sec.  6.101 and Subpart C of the NEPA implementing procedures, and
Sec.  6.401 of the Executive Order 12114 implementing procedures in
this proposed rule. If you have questions regarding the applicability
of these procedures to a particular entity, consult the person listed
in the preceding FOR FURTHER INFORMATION CONTACT section of this
Preamble.

B. Tips for Preparing Your Comments

    When submitting comments, remember to:
    (a) Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
    (b) Follow directions for commenting according to the ADDRESSES
section of this Preamble.
    (c) Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    (d) Describe any assumptions and provide any technical information
and/or data that you used.
    (e) If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    (f) Provide specific examples to illustrate your concerns, and
suggest alternatives.
    (g) Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    (h) Make sure to submit your comments by the comment period
deadline identified.

II. Introduction

A. Statutory Authority

    The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321-4347, establishes the federal government's national policy for
protection of the environment. The Council on Environmental Quality
Regulations (CEQ Regulations) at 40 CFR parts 1500 through 1508
establish procedures implementing this national policy. The CEQ
Regulations (40 CFR 1505.1) require federal agencies to adopt and, as
needed, revise their own NEPA implementing procedures to supplement the
CEQ Regulations and to ensure their decision-making processes are
consistent with NEPA.
    Executive Order 12114, ``Environmental Effects Abroad of Major
Federal Actions,'' (see 46 FR 3364) is the authority and basis for
EPA's policy, criteria, and procedures contained in the portion of
today's proposed rule entitled ``Assessing the Environmental Effects
Abroad of EPA Actions.''

B. Background

    The Environmental Protection Agency initially established its NEPA
regulations as 40 CFR Part 6 (Part 6), Subparts A through H on April
14, 1975 (see 40 FR 16823). Subpart I was added on January 11, 1977
(see 42 FR 2450). On November 29, 1978, the Council on Environmental
Quality (CEQ) promulgated regulations establishing uniform federal
procedures for implementing NEPA (see 43 FR 55978). Section 103 of NEPA
and the CEQ Regulations require federal agencies to adopt appropriate
NEPA procedures to supplement those regulations. As a result, EPA
amended its NEPA regulations on November 6, 1979, to make them
consistent with the CEQ Regulations (see 44 FR 64177).
    Under the Agency's 1979 Part 6 amendments, Subparts A through D
described general NEPA procedures for preparing environmental reviews
applicable to all EPA NEPA actions and established certain categorical
exclusions. Subpart A contained an overview of EPA's NEPA regulations,
including environmental impact statement (EIS) requirements for EPA
legislative proposals and requirements for environmental information
documents (EIDs) to be submitted to EPA by applicants, grantees, or
permitees as required in Subparts E through I. Subpart B described the
requirements for the content of an EIS prepared pursuant to Subparts E
through I. Subpart C described the requirements for coordination of
applicable environmental laws and certain executive orders with the
environmental review procedures. It provided a brief recitation of the
provisions of those laws or executive orders and EPA implementing
procedures. Subpart D described the public information requirements to
be undertaken in conjunction with the environmental review requirements
under Subparts E through I. Subparts E through I established specific
criteria for conducting environmental reviews for particular types of
actions and categorical exclusions applicable to those actions.
Specifically, Subpart E established NEPA environmental review
procedures for the Wastewater Treatment Construction Grants Program of
the Clean Water Act; Subpart F for the issuance of new source NPDES
permits; Subpart G for research and development program actions;
Subpart H for solid waste demonstration projects; and Subpart I for EPA
actions for construction of special purpose facilities or facility
renovations. EPA's ``Statement of Procedures on Floodplain Management
and Wetlands Protection,'' dated January 5, 1979, was included as
Appendix A to clarify the effective date and to emphasize the
importance of this Statement of Procedures.
    In 1981, Subpart J, ``Assessing the Environmental Effects Abroad of
EPA Actions,'' was added as EPA's general policy, criteria, and
procedures for implementing Executive Order 12114, ``Environmental
Effects Abroad of Major Federal Actions'' (see 46 FR 3364). Executive
Order 12114 does not impose NEPA compliance requirements on Federal
agencies, rather it ``furthers the purpose'' of NEPA and identifies the
documents, including environmental impact statements (EISs) and
environmental assessments (EAs), to be used when conducting assessments
under Executive Order 12114.
    In 1982, the Agency revised its Part 6 NEPA regulations by removing
CEQ from the consultation process on requests to segment wastewater
treatment facility construction grant projects (see 47 FR 9831). In
1983, EPA revised the categorical exclusions and the criteria for not
granting an exclusion, and corrected a factual error on the
responsibility for preparing a final EA (see 48 FR 1012).
    In 1985, the Agency promulgated procedural amendments and minor
substantive amendments to its Part 6 NEPA regulations to accommodate
changes in EPA's regulations for the construction grants program found
at 40 CFR Part 35 (see 50 FR 26310). The modifications in the
construction grants program changed the process that EPA grant
recipients followed in planning and building wastewater treatment
facilities. The amendments to Subpart E and related sections of the EPA
NEPA regulations streamlined and clarified the criteria and process for
an environmental review and for preparing an EIS, including
partitioning of the review process and the public involvement
requirements. These amendments also included Office name and technical
changes to reflect an Agency reorganization.
    In 1986, EPA amended its Part 6 NEPA regulations to clarify and
streamline procedures for partitioning and re-evaluating environmental
reviews, making categorical exclusion determinations, providing for
public participation, and producing and distributing environmental
review documents; and to make various technical changes including
Office name changes due to reorganizations.
    In 1991, EPA amended Subpart G of its Part 6 NEPA regulations by
adding categorical exclusions and a list of projects that normally
result in preparation of EAs; revising the criteria used to determine
whether preparation of an EIS is required; revising the provision
directing coordination, where feasible, with other EPA program reviews;
and clarifying the NEPA review process for Office of Research and
Development actions (see 56 FR 20541). In addition, EPA amended Subpart
D by eliminating the requirement for public notice of categorical
exclusion determinations for all EPA programs except the Wastewater
Treatment Construction Grants Program.
    In 1993, EPA amended its Part 6 NEPA regulations to address the
requirement that EPA actions conform to any air quality State
implementation plan, and to clarify that air pollution control
requirements need to be considered when performing NEPA reviews for
wastewater treatment works (see 58 FR 63214).

C. Exemptions From NEPA for Certain EPA Actions

    Certain EPA actions are exempt from the procedural requirements of
NEPA, including the CEQ Regulations. Congress has provided specific
statutory exemptions for certain EPA actions taken under the Clean
Water Act (CWA) and all EPA actions taken under the Clean Air Act
(CAA). Specifically, under CWA Section 511(c)(1), EPA is exempt from
preparing EISs for all actions taken under the CWA except for issuance
of NPDES permits under CWA Section 402 for ``new sources'' as defined
in Section 306, and for Federal financial assistance provided for
assisting construction of publicly owned

treatment works under CWA Section 201 (33 U.S.C. 1371(c)). Under the
Energy Supply and Environmental Coordination Act of 1974 (15 U.S.C.
793(c)(1)), all actions taken under the CAA are deemed not to be major
federal actions significantly affecting the environment.
    Further, the courts have exempted certain EPA actions from the
procedural requirements of NEPA through the functional equivalence
doctrine. Under the functional equivalence doctrine, courts have found
EPA to be exempt from the procedural requirements of NEPA for certain
actions under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA); the Resource Conservation and Recovery Act (RCRA), the Toxic
Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and
the Marine Protection, Research, and Sanctuaries Act (MPRSA). The
courts reasoned that EPA actions under these statutes are functionally
equivalent to the analysis required under NEPA because they are
undertaken with full consideration of environmental impacts and
opportunities for public involvement. See, e.g., EDF v. EPA, 489 F.2d
1247 (D.C. Cir. 1973) (FIFRA); State of Alabama v. EPA, 911 F. 2d 499
(11th Cir. 1990) (RCRA); Warren County v. North Carolina, 528 F. Supp.
276 (E.D. N.C. 1981) (TSCA); Western Nebraska Resources Council v. U.S.
EPA, 943 F.2d 867 (8th Cir. 1991) (SDWA); Maryland v. Train, 415 F.
Supp. 116 (D. Md. 1976) (MPRSA).
    Agency actions exempt from the requirements of NEPA would remain
exempt under this proposed rule. If a question arises regarding the
applicability of the NEPA requirements to certain proposed actions, the
Responsible Official should consult with the NEPA Official and the
Office of General Counsel.

D. EPA's Voluntary NEPA Policy and Procedures

    In 1974, EPA Administrator Russell Train determined that the Agency
could voluntarily prepare EISs for certain regulatory activities that
were exempt from NEPA. In 1998, Administrator Carol Browner amended
this policy to permit the preparation of non-EIS NEPA documents for
certain EPA regulatory actions. The Agency's current ``Notice of Policy
and Procedures for Voluntary Preparation of National Environmental
Policy Act (NEPA) Documents'' (see 63 FR 58045) sets out the policy and
procedures EPA uses when preparing environmental review documents under
the Voluntary NEPA Policy. This proposed rule does not make any changes
to the voluntary NEPA policy and procedures. However, the proposed rule
can serve as a framework for the preparation of voluntary NEPA
documents.

III. Purpose and Policy

    This proposed rule has two purposes. The first purpose is to update
and revise EPA's procedures for implementing the procedural
requirements of NEPA and the CEQ Regulations by restructuring and
standardizing these regulations (see Section IV below). The revised
NEPA procedures would continue to be consistent with the declaration of
national environmental policy as stated in Title I, Section 101(a) of
NEPA (42 U.S.C. 4331(a)). Under the proposed NEPA rule, EPA's
environmental review process would continue to ensure that, when
required, environmental information is available and taken into account
before EPA makes a finding of no significant impact or signs a Record
of Decision. The NEPA environmental review process would continue to
include: identification of alternatives to the proposed action,
description of the affected environment, and analyses of the
environmental consequences. For proposed actions subject to NEPA, EPA
would continue to prepare environmental impact statements (EISs) for
major federal actions significantly affecting the quality of the human
environment. As part of its NEPA environmental review process, EPA also
would continue to determine the applicability of other laws and
executive orders early in the planning process and incorporate
applicable requirements as early in the NEPA review process as
possible. EPA's NEPA implementing regulations will be amended in
consultation with the Council on Environmental Quality (see 40 CFR
1507.3(a)).
    The second purpose of today's proposed rule is to make minor,
technical amendments to Subpart D, ``Assessing the Environmental
Effects Abroad of EPA Actions,'' which contains the Agency's procedures
for implementing Executive Order 12114, ``Environmental Effects Abroad
of Major Federal Actions.'' The scope of this portion of the proposed
regulations is limited to these minor, technical changes. These minor,
technical changes are described in the Preamble in Section IV.C. and
include amendments to: Re-designate the subpart for EPA's procedures
implementing Executive Order 12114; update office names and titles and
the references to EPA's Voluntary NEPA Policy and NEPA implementing
procedures; and correct cross-references and typographical errors.

IV. Proposed Changes to the Regulations and Objectives of These
Proposed Changes

A. Proposed Revision to the Title for EPA's Regulations at Part 6

    EPA proposes to retitle its regulations at Part 6 to clarify that
the proposed rule includes two sets of Agency procedures: the Agency's
procedures for implementing the National Environmental Policy Act; and
the Agency's procedures for implementing Executive Order 12114,
``Environmental Effects Abroad of Major Federal Actions.'' Both sets of
implementing procedures are currently, and will remain, in Part 6.
However, EPA believes the proposed amended title will clarify that the
procedures implementing Executive Order 12114 are not based on NEPA
authority and do not impose NEPA compliance requirements on EPA.

B. Restructuring and Standardizing EPA's NEPA Implementing Regulations

    Restructuring and standardizing EPA's NEPA implementing procedures
will clarify that the regulations apply to all proposed actions that
are subject both to EPA's control and responsibility and NEPA,
including actions not specifically addressed in the current regulations
(e.g., certain grants awarded for special projects identified in the
STAG account authorized through the Agency's annual Appropriations
Act). The proposed revisions also take into account the environmental
review exemptions to NEPA established by Congress and the courts.
    This proposed rule would restructure and amend EPA's NEPA
implementing regulations in order to: (1) Consolidate and standardize
the procedural provisions and requirements of the Agency's
environmental review process under NEPA; (2) clarify the general
procedures associated with categorical exclusions, consolidate the
categories of actions subject to categorical exclusion, amend existing
and add new categorical exclusions, and consolidate and amend existing
and add new extraordinary circumstances; (3) consolidate and amend the
listing of actions that generally require an EIS; (4) clarify the
procedural requirements for consideration of applicable environmental
review laws and executive orders; and (5) incorporate other proposed
revisions consistent with the CEQ Regulations. Preamble sections IV.B.1
through 5 summarize the objectives of these proposed changes.

1. Consolidate and Standardize the Procedural Provisions and
Requirements of the Agency's Environmental Review Process Under NEPA
    Currently, as discussed in Section II above, EPA's NEPA
implementing regulations apply, by subpart, to specific actions. The
proposed regulations would consolidate the definitions and
environmental review procedures in a single set of definitions and
environmental review procedures applicable to all EPA proposed actions
subject to NEPA.
    The proposed regulations also would consolidate the notification
and public participation procedures that apply to all EPA proposed
actions subject to NEPA. The proposed regulations no longer require a
public meeting or hearing as part of the NEPA process. However,
consistent with the CEQ Regulations (40 CFR 1506.6(c)), the Agency will
hold meetings and/or hearings when appropriate or in accordance with
statutory requirements. This does not diminish the Agency's commitment
to NEPA's requirement for full public disclosure. The proposed
regulations also state the conditions for notification of and
consultation with state and local governments, and federally-recognized
Indian tribes (tribes) and for public participation.
2. Clarify the General Procedures Associated With Categorical
Exclusions; Consolidate the Categories of Actions Subject to
Categorical Exclusion; Amend Existing and Add New Categorical
Exclusions; and Consolidate and Amend Existing and Add New
Extraordinary Circumstances
    Currently, EPA's NEPA implementing regulations include general and,
by subpart, action-specific categorical exclusions and extraordinary
circumstances. The proposed regulations would consolidate the
categorical exclusions and extraordinary circumstances in a single
location. Thus, the procedures for determining if a proposed action
fits within a categorical exclusion or involves any extraordinary
circumstances would be applicable to all EPA actions subject to NEPA.
    The proposed regulations also propose amending existing and adding
new categories of actions for categorical exclusion as discussed in
Section V below, Proposed Amended and New Categories of Actions
Eligible for Categorical Exclusion; Amended and New Extraordinary
Circumstances; and Amended Listing of Actions that Generally Require an
Environmental Impact Statement.
3. Consolidate and Amend the Listing of Actions That Generally Require
an Environmental Impact Statement
    Currently, some subparts of EPA's NEPA implementing regulations
list proposed actions that generally require EISs, and one also lists
proposed actions that generally require EAs. The proposed regulations
would consolidate and amend the criteria for actions that generally
require EISs. These criteria for actions that generally require EISs in
the proposed regulations would be applicable to all EPA actions subject
to NEPA.
4. Clarify the Procedural Requirements for Consideration of Applicable
Environmental Review Laws and Executive Orders
    Currently, Subpart C of EPA's NEPA implementing regulations focuses
on integrating the requirements of applicable environmental laws and
executive orders with environmental review requirements independent of
NEPA with the Agency's NEPA environmental review procedures. Subpart C
also provides a brief outline of the provisions of certain
environmental laws and executive orders and EPA implementing
procedures, including but not limited to: The National Historic
Preservation Act (16 U.S.C. 470 et seq.); the Archaeological and
Historic Preservation Act (16 U.S.C. 469 et seq.); Executive Order
11593, ``Protection and Enhancement of the Cultural Environment;'' the
Historic Sites Act (16 U.S.C. 461 et seq.); Executive Order 11990,
``Protection of Wetlands;'' Executive Order 11988, ``Floodplain
Management;'' the Farmland Protection Policy Act (7 U.S.C. 4201 et
seq.); the Coastal Zone Management Act (16 U.S.C. 1451 et seq.); the
Wild and Scenic Rivers Act (16 U.S.C. 1274 et seq.); the Coastal
Barrier Resources Act (16 U.S.C. 3501 et seq.); the Fish and Wildlife
Coordination Act (16 U.S.C. et seq.); the Endangered Species Act (16
U.S.C. 1531 et seq.); and air quality conformity pursuant to the Clean
Air Act (42 U.S.C. 7476(c) and 42 U.S.C. 7616). Appendix A provides
EPA's ``Statement of Procedures on Floodplain Management and Wetlands
Protection.'' The proposed NEPA regulations would remove the outlines
and Appendix A, and replace them with the general procedural
requirement to determine, to the fullest extent possible, the
applicability of other environmental laws and executive orders early in
the planning process, and to incorporate applicable requirements as
early in the NEPA review process as possible. This general procedural
requirement would be applicable to all EPA actions subject to NEPA.
This revision also would eliminate the need to amend the regulations
whenever the laws and executive orders change. Moreover, today, the
environmental review laws, regulations, and executive orders are
available through the Internet (for example, many executive orders are
linked through CEQ's Web site on NEPAnet at: http://ceq.eh.doe.gov/nepa/regs/executiveorders.htm
). Guidance documents have been issued by

the responsible oversight agencies, CEQ, and EPA for many of these
including those frequently addressed in a NEPA review. (For example,
see: CEQ guidance documents available at: http://ceq.eh.doe.gov/nepa/regs/guidance.html
; and EPA guidance such as ``Guidance for

Incorporating Environmental Justice Concerns in EPA's NEPA Compliance
Analyses,'' EPA, April 1998.)
5. Other Proposed Revisions Consistent With the CEQ Regulations
    Consolidate and standardize the definitions in the existing
regulations. The proposed NEPA implementing regulations would
consolidate and standardize the definitions in EPA's current NEPA
regulations, as well as adding new definitions. Currently, EPA's NEPA
implementing regulations apply, by subpart, to specific actions. The
proposed regulations would consolidate the definitions in a single set
of definitions applicable to all EPA actions subject to NEPA. For
example, the proposed NEPA rule defines the term ``action,'' and
replaces the terms ``grantee,'' ``applicant'' and ``permit applicant''
with the single defined term ``applicant.'' The current regulations
define and list by title the specific EPA officials responsible for the
various program and action-specific actions identified by subpart. In
the proposed rule, the Responsible Official would be defined simply and
without title as the EPA official responsible for compliance with NEPA
for individual actions thereby precluding the need for technical change
to the regulations whenever there is an Agency reorganization and/or
change to the title of an organizational unit or management position.
Generally, the Responsible Official is an Assistant Administrator or a
Regional Administrator, and the NEPA Official is the EPA official
responsible for overall review of EPA's NEPA compliance (currently the
Director of the Office of Federal Activities within

the Office of Enforcement and Compliance Assurance).
    Delegation of responsibilities. Currently, Subpart G of EPA's NEPA
implementing regulations provides for delegation of responsibilities
for carrying out the environmental review process by EPA's Office of
Research and Development; other subparts are silent regarding
delegation of responsibilities. In order to clarify and standardize the
regulations, the proposed NEPA rule would standardize the delegation of
responsibilities by stating that the NEPA-related responsibilities may
be delegated to a level no lower than the Branch Chief or equivalent
organizational level.
    Clarify the general requirements for an environmental assessment.
Consistent with the CEQ Regulations at Sec. Sec.  1501.3 and 1508.9,
and considering the information contained in ``The NEPA Task Force
Report to the Council on Environmental Quality, Modernizing NEPA
Implementation'' (September 2003), the proposed NEPA regulations would
include specific elements that generally must be addressed in an EA
such as the need for the proposed action, the alternatives considered,
description of the affected environment, and the environmental impacts
of the proposed action and the alternatives.
    Consolidate and standardize the procedures that apply to
applicants. Currently, EPA's NEPA implementing regulations include, by
subpart, procedures applicable to certain grantees and new source NPDES
permit applicants. These procedures require those grantees and permit
applicants (together referred to as applicants) to submit information
to the Responsible Official for use in EPA's environmental review
process. The proposed NEPA regulations would consolidate and
standardize these procedures in Subpart C, ``Requirements for
Environmental Information Documents and Third-Party Agreements.'' These
procedures would be applicable to all applicant-proposed actions
subject to NEPA.
    Compliance with the proposed NEPA regulations would be the
responsibility of the Responsible Official. The proposed NEPA
regulations require the applicant to submit an environmental
information document (EID) unless the action is categorically excluded
or the applicant prepares and submits a draft EA and supporting
documents. As appropriate and according to the proposed procedures in
Subpart C, the applicant would be able to submit information to the
Responsible Official regarding the applicability of a categorical
exclusion to the applicant's pending action. The Responsible Official
would notify the applicant if the Responsible Official determines that
the action is categorically excluded; if EPA needs additional
information to support the application of a categorical exclusion; or
if the submitted information does not support the application of a
categorical exclusion and an EA or an EIS and supporting documents
would be required for the project. The Responsible Official also would
notify the applicant if an EID would not be required. Unless so
notified or unless the applicant and Responsible Official implement a
third-party agreement, the applicant, in consultation with the
Responsible Official, would prepare an EID that is of sufficient scope
to enable the Responsible Official to prepare an EA or, if necessary,
an EIS.

C. Proposed Amendments to EPA's Procedures for Implementing Executive
Order 12114

    Today's proposed rule also includes minor, technical amendments to
the Agency's procedures for implementing Executive Order 12114,
``Environmental Effects Abroad of Major Federal Actions,'' included in
EPA's proposed regulations in Subpart D, ``Assessing the Environmental
Effects Abroad of EPA Actions.'' These proposed amendments are
described below. For this subpart, the scope of the proposal is limited
to these minor, technical amendments and EPA is requesting comments
only on these amendments.
1. Amendment to Re-Designate the Subpart for EPA's Procedures
Implementing Executive Order 12114
    Currently, EPA's procedures implementing Executive Order 12114 are
in Part 6 at Subpart J. As part of the overall restructuring of Part 6,
these procedures are proposed to be re-designated as Subpart D. The
sections in this subpart are proposed to be re-numbered accordingly;
Sec.  6.1001 would become Sec.  6.400, Sec.  6.1002 would become Sec.
6.401, Sec.  6.1003 would become Sec.  6.402, Sec.  6.1004 would become
Sec.  6.403, Sec.  6.1005 would become Sec.  6.404, Sec.  6.1006 would
become Sec.  6.405, and Sec.  6.1007 would become Sec.  6.406,
respectively and in accordance with Federal Register numbering, in the
proposed rule.
2. Amendments To Update Office Names and Titles
    In 1981 when Subpart J was included in Part 6, the Office of
Environmental Review (OER) housed the EPA official responsible for
overall review of EPA's NEPA compliance as required by 40 CFR
1507.2(a). Today, this responsibility resides in the Office of Federal
Activities (OFA). The proposed rule contains amendments to update this
information. Likewise, the proposed rule also contains amendments to
update other office names and titles. The following proposed office
name and title amendments are identified according to the paragraph
numbers in the proposed rule; e.g., Sec.  6.401(a)(5) in the proposed
rule corresponds to Sec.  6.1002(a)(5) in the current rule, Sec.
6.403(b)(1) in the proposed rule corresponds to Sec.  6.1004(b)(1) in
the current rule, Sec.  6.405 in the proposed rule corresponds to Sec.
6.1006 in the current rule, and Sec.  6.406 in the proposed rule
corresponds to Sec.  6.1007 in the current rule. In Sec.  6.401(a)(5),
``OER'' would be amended to ``OFA''. In Sec.  6.403(b)(1), ``The
Assistant Administrator for Water and Waste Management'' would be
amended to ``The Assistant Administrator for Water''. In Sec.  6.405,
``the Director, Office of Environmental Review (OER)'' would be amended
to ``the Director, Office of Federal Activities (OFA)''; ``Director
Office of International Activities (OIA)'' would be amended to
``Assistant Administrator, Office of International Affairs (OIA)'';
``Director, OER'' would be amended to ``Director, OFA''; and
``Director, OIA'' would be amended to ``Assistant Administrator, OIA''.
In Sec.  6.406, paragraphs (a) through (c), ``OER'' would be amended to
``OFA''.
3. Amendment to Reference in the Executive Order 12114 Implementing
Procedures to EPA's Voluntary NEPA Policy
    Currently, EPA's procedures for implementing Executive Order 12114
reference EPA's Voluntary EIS Policy dated October 21, 1974. The Agency
revised this policy in 1998. For this reason and to clarify the
applicability of these procedures to ocean dumping activities in the
global commons under section 102(a) of the MPRSA, in Sec.  6.403(b)(1),
the sentences: ``For ocean dumping site designations prescribed
pursuant to section 102(c) of the MPRSA and 40 CFR part 228, EPA shall
prepare an environmental impact statement consistent with the
requirements of EPA's Procedures for the Voluntary Preparation of
Environmental Impact Statements dated October 21, 1974 (see 30 FR
37419). Also EPA shall prepare an environmental impact statement for
the establishment or revision of criteria under section 102(a) of
MPRSA.'' would be amended to: ``For ocean dumping site designations
prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228,
and for the establishment or revision of criteria under section

102(a) of the MPRSA, EPA shall prepare appropriate environmental
documents consistent with EPA's Notice of Policy and Procedures for
Voluntary Preparation of National Environmental Policy Act (NEPA)
Documents dated October 29, 1998 (see 63 FR 58045).'' This proposed
amendment is identified according to the paragraph number in the
proposed rule; e.g., Sec.  6.403(b)(1) in the proposed rule corresponds
to Sec.  6.1004(b)(1) in the current rule.
4. Amendment to Reference in the Executive Order 12114 Implementing
Procedures to EPA's NEPA Implementing Procedures
    Currently, EPA's procedures for implementing Executive Order 12114
reference Sec.  6.506 of EPA's current NEPA implementing procedures.
Because EPA proposes to restructure its NEPA implementing procedures,
in Sec.  6.403(d), ``40 CFR 6.506 details'' would be amended to ``40
CFR part 6, subparts A through C, detail''. This proposed amendment is
identified according to the paragraph number in the proposed rule;
e.g., Sec.  6.403(d) in the proposed rule corresponds to Sec.
6.1004(d) in the current rule.
5. Amendments for Correction of Cross-References and Typographical
Errors
    In Sec.  6.400(a), ``the Marine Protection Research and Sanctuaries
Act'' would be amended to ``the Marine Protection, Research, and
Sanctuaries Act''. In Sec.  6.401(a), ``of by EPA as set forth below:''
would be amended to ``of EPA as follows:''. In Sec.  6.401(a)(5),
``(see Sec.  6.1007(c)).'' would be amended to ``(see Sec.
6.406(c)).'' In Sec.  6.401, ``(b) [Reserved].'' would be added to meet
the Federal Register requirement for a second paragraph in this
section. In Sec.  6.403(d), ``or water quality agreements'' would be
amended to ``of water quality agreements'' in the sentence, ``Where
water quality impacts identified in a facility plan are the subject of
water quality agreements with Canada or Mexico, nothing in these
regulations shall impose on the facility planning process coordination
and consultation requirements in addition to those required by such
agreements.'' These proposed amendments are identified according to the
paragraph numbers in the proposed rule; e.g., Sec.  6.400(a) in the
proposed rule corresponds to Sec.  6.1001(a) in the current rule, Sec.
6.401(a) in the proposed rule corresponds to Sec.  6.1002(a) in the
current rule, Sec.  6.401(a)(5) in the proposed rule corresponds to
Sec.  6.1002(a)(5) in the current rule, Sec.  6.401 in the proposed
rule corresponds to Sec.  6.1002 in the current rule, and Sec.
6.403(d) in the proposed rule corresponds to Sec.  6.1004(d) in the
current rule.

V. Proposed Amended and New Categories of Actions Eligible for
Categorical Exclusion; Amended and New Extraordinary Circumstances; and
Amended Listing of Actions That Generally Require an Environmental
Impact Statement

    The Environmental Protection Agency (EPA or Agency) is proposing
amendments to its procedures for implementing the requirements of the
National Environmental Policy Act of 1969 (NEPA). The proposed rule
also includes minor, technical amendments to the Agency's procedures
for implementing Executive Order 12114, ``Environmental Effects Abroad
of Major Federal Actions.''
    Pursuant to CEQ's Regulations that are applicable to all Federal
agencies for implementing the procedural provisions of NEPA, Federal
agencies must, to the fullest extent possible, reduce paperwork and
accumulation of extraneous background data and emphasize real
environmental issues and alternatives. (40 CFR 1500.2(b)) CEQ's
Regulations (40 CFR 1507.3(b)(2)(ii)) provide that agencies are to
adopt their own implementing procedures to supplement CEQ's NEPA
implementing procedures, including specific criteria for and
identification of classes of action which normally do not require
either an environmental impact statement or an environmental assessment
(e.g., categorical exclusions (see 40 CFR 1508.4)).
    As part of the amendments to its NEPA implementing regulations, the
Agency is proposing to amend existing and add new categories of actions
eligible for categorical exclusion. Consistent with the CEQ Regulations
at Sec.  1508.4, the proposed rule would define ``categorical
exclusion'' to mean ``a category of actions that does not individually
or cumulatively have a significant effect on the human environment * *
*'' and have been found by EPA to have no such effect. The proposed
rule would require that to find that a proposed action is categorically
excluded, EPA's Responsible Official must determine that the proposed
action fits within a categorical exclusion listed in the proposed
regulations, and the proposed action does not involve any extraordinary
circumstances. Some of EPA's proposed new categorical exclusions are
essentially the same as categorical exclusions of other Federal
agencies; others are more specific to EPA.
    Consistent with the CEQ Regulations at Sec.  1508.4, the proposed
rule would define ``extraordinary circumstances'' to mean ``those
circumstances * * * that may cause a significant environmental effect
such that an action that otherwise meets the requirements of a
categorical exclusion may not be categorically excluded.'' Like its
current NEPA implementing regulations, EPA's proposed rule includes a
list of extraordinary circumstances. Some are generally the same as
those in its current NEPA implementing regulations, some are new, and
some are proposed amendments based on current extraordinary
circumstances, the criteria for actions that generally require
environmental impact statements (EISs), and NEPA's policy direction to
emphasize real environmental issues and alternatives. The extraordinary
circumstances would be consolidated in the proposed rule. As required
by CEQ's Regulations, the proposed rule also includes a consolidated
listing of actions that generally require an EIS (see 40 CFR
1507.3(b)(2)(i)).
    The proposed amendments to EPA's NEPA implementing regulations
include: (1) Consolidating and standardizing the procedural provisions
and requirements of the Agency's environmental review process under
NEPA; (2) clarifying the general procedures associated with categorical
exclusions, consolidating the categories of actions subject to
categorical exclusion, amending existing and adding new categorical
exclusions, and consolidating and amending existing and adding new
extraordinary circumstances; (3) consolidating and amending the listing
of actions that generally require environmental impact statements; (4)
clarifying the procedural requirements for consideration of applicable
environmental review laws and executive orders; and (5) incorporating
other proposed revisions consistent with CEQ's Regulations. The general
reasons for the amended and new categorical exclusions, extraordinary
circumstances, and criteria for actions that generally require an EIS
are as follows:
(1) Consolidation and standardization of the procedural provisions and
requirements of the Agency's environmental review process under NEPA
    The proposed regulations would consolidate and standardize the
environmental review process applicable to all EPA actions subject to
NEPA, including those actions now specifically addressed in the current
regulations and other actions subject to

NEPA but not specifically addressed in the current regulations (e.g.,
certain grants awarded for special projects identified in the State and
Tribal Assistance Grants (STAG) account authorized by Congress through
the Agency's annual Appropriations Act).
(2) Clarify the general procedures associated with categorical
exclusions, consolidate the categories of actions subject to
categorical exclusion, amend existing and add new categorical
exclusions, and consolidate and amend existing and add new
extraordinary circumstances
    Currently, EPA's NEPA implementing regulations include general and,
by subpart, program-specific categorical exclusions and extraordinary
circumstances. The proposed regulations would consolidate the
categorical exclusions and extraordinary circumstances in a single
location. Thus, the procedures for determining if a proposed action
fits within a categorical exclusion or involves any extraordinary
circumstances would be the same for all EPA actions subject to NEPA.
(3) Consolidate and amend the listing of actions that generally require
an environmental impact statement
    Currently, some subparts of EPA's NEPA implementing regulations
list actions that generally require EISs, and one also lists specific
actions that generally require EAs. The proposed regulations would
consolidate and amend the criteria for actions that generally require
EISs. These criteria for actions that generally require EISs in the
proposed regulations would be applicable to all EPA actions subject to
NEPA.
    EPA's NEPA regulations apply to the actions and decisions of EPA
that are subject to NEPA's procedural requirements in order to ensure
that environmental information is available to the Agency's decision-
makers and the public before decisions are made and before actions are
taken. This includes actions such as the award of wastewater treatment
construction grants under Title II of the Clean Water Act, EPA's
issuance of new source National Pollutant Discharge Elimination System
(NPDES) permits, certain research and development projects, EPA actions
involving renovations at or new construction of EPA facilities, and
certain grants awarded for special projects identified in the STAG
account authorized by Congress through the Agency's annual
Appropriations Act. EPA actions subject to NEPA that are based on
applicant proposals may include any of these except EPA actions for
construction of special purpose facilities or facility renovations. As
with EPA's current NEPA implementing regulations, compliance with the
proposed NEPA regulations would be the responsibility of EPA's
Responsible Officials and certain grant or permit applicants who must
submit environmental information documentation to EPA for their
proposed projects.
    Currently, EPA's NEPA implementing regulations apply, by subpart,
to specific actions. For example, Subpart E applies to the award of
wastewater treatment construction grants under Title II of the Clean
Water Act, and Subpart F applies to EPA's environmental review process
for issuance of new source NPDES permits. The proposed regulations
would consolidate and standardize the environmental review process
applicable to all EPA actions subject to NEPA, including those actions
now specifically addressed in the current regulations and other actions
subject to NEPA but not specifically addressed in the current
regulations (e.g., certain grants awarded for special projects
identified in the STAG account.) As with EPA's current regulations, the
proposed regulations would supplement and be used in conjunction with
the CEQ Regulations. Certain EPA actions are exempt from the procedural
requirements of NEPA and would remain exempt under the proposed rule.
    EPA is proposing to consolidate and standardize the environmental
review process applicable to all EPA actions subject to NEPA. As part
of this process, EPA is consolidating the categories of actions
eligible for categorical exclusion, and amending existing and adding
new categorical exclusions. CEQ's Regulations state that Federal
agencies must implement NEPA procedures, in part, ``to reduce paperwork
and the accumulation of extraneous background data; and to emphasize
real environmental issues and alternatives.'' (40 CFR 1500.2(b)) EPA
believes that the proposed amended and identification of new
categorical exclusions meets the intent of this NEPA policy as
paperwork is reduced or eliminated for EPA's Responsible Officials and
applicants. Likewise, EPA's attention will be focused on proposed
actions with real environmental issues and the associated analysis of
alternatives, including mitigation measures, that will eliminate or
reduce the project's environmental impacts.
    The NEPA Task Force Report to the Council on Environmental Quality
notes that federal agency administrative records prepared to support
categorical exclusions may include documentation of: Professional staff
and expert opinions; research study results; past NEPA action records;
and similar categorical exclusion actions by other agencies.
[``Modernizing NEPA Implementation, Chapter 5, Categorical
Exclusions,'' The NEPA Task Force Report to the Council on
Environmental Quality, September 2003]
    Categorical Exclusions. EPA's proposed rule identifies 15
categories of action eligible for categorical exclusion included in two
listings. The first five proposed categorical exclusions, listed in the
proposed rule at Sec.  6.204(a)(1)(i) through (v), are more likely to
involve extraordinary circumstances and require the EPA Responsible
Official to document a determination that a categorical exclusion
applies. It is also EPA's opinion that these actions generally do not
pose the potential for environmental impacts, and that confirmation
there are no extraordinary circumstances would satisfy a determination
that the use of a CE is appropriate. The first three of these are
substantially the same as, or similar to, categorical exclusions in
EPA's current NEPA implementing regulations with amendments to clarify
their applicability to all EPA actions subject to NEPA and to clarify
the intended applicability of the categorical exclusion. Proposed
categorical exclusion (i) is similar to other Federal agencies'
categorical exclusions (in general terms, minor rehabilitation).
Proposed categorical exclusions (ii) and (iii) are specific to EPA and
are similar to current EPA categorical exclusions; they have been
documented as proposed categorical exclusions through past NEPA action
records. Categorical exclusion (iv) is a proposed new categorical
exclusion based on EPA's past NEPA action records. Categorical
exclusion (v) is a proposed new categorical exclusion based on EPA's
view that these actions for award of funds are not likely to have the
potential for environmental impacts because the project for which the
grant is being awarded was completed prior to the date the
appropriation was enacted. However, EPA has discretion to award these
grants, so they should be screened to determine whether there may be
extraordinary circumstances associated with the completed project that
should be addressed by conducting a NEPA review (e.g., avoidance or
mitigation of potential impacts).
    It is EPA's view that the next 10 listed categorical exclusions are
generally administrative in nature, do not generally involve
extraordinary

circumstances and do not require the EPA Responsible Official to
document a determination that a categorical exclusion applies (see
proposed rule, Sec.  6.204(a)(2)(i) through (x)). One of these proposed
categorical exclusions is substantially the same as one in EPA's
current Part 6 rule. The other 9 are proposed new categorical
exclusions, one of which incorporates three of the categorical
exclusions in EPA's current NEPA implementing regulations. These
proposed new categorical exclusions are generally for actions involving
administrative procedures of the Agency. Most are similar to other
Federal agencies' categorical exclusions, and some are also based on
EPA's view that they are administrative in nature and generally do not
involve extraordinary circumstances. In any case, even for these
categorical exclusions, the Responsible Official would be required to
ensure that none of the extraordinary circumstances applies to the
action.
    EPA's ``Supporting Statement for Amended and New Categorical
Exclusions, Extraordinary Circumstances, and Criteria for Actions that
Generally Require EISs under 40 CFR Part 6: `Procedures for
Implementing the National Environmental Policy Act and Assessing the
Environmental Effects Abroad of EPA Actions' '' is available in the
docket for this proposed rulemaking at http://www.regulations.gov and provides

specific reasons for the proposed amended and new categorical
exclusions included in EPA's proposed rule. EPA's documentation
includes: references to EPA projects documented with environmental
assessments and findings of no significant impact; reference to other
Federal agencies with similar provisions for categorical exclusions;
and statements of EPA's opinion.
    Extraordinary Circumstances. EPA's proposed rule identifies 10
extraordinary circumstances in the proposed rule at Sec.  6.204(b)(1)
through (10). Four of the proposed extraordinary circumstances are
substantially the same as the eight in EPA's current regulations, and
one of the proposed new extraordinary circumstances combines the
elements of two in the current regulations. This proposed rule updates
and amends the current extraordinary circumstances to clarify the
conditions for their applicability, and consolidates all of the
extraordinary circumstances into a single listing that would be
applicable to all EPA actions subject to NEPA. EPA is also proposing
six new extraordinary circumstances based on NEPA's policy direction to
emphasize real environmental issues and alternatives and on
consideration of EPA's proposed criteria for actions that generally
require an EIS. EPA believes there is a relationship between the
extraordinary circumstances and the criteria for actions that generally
require EISs. EPA notes, however, that extraordinary circumstances are
used to help the Responsible Official determine whether, or not, a
categorical exclusion applies to the proposed action, and that the
criteria for actions that generally require an EIS are criteria that
generally, but not always, require an EIS.
    EPA's ``Supporting Statement for Amended and New Categorical
Exclusions, Extraordinary Circumstances, and Criteria for Actions that
Generally Require EISs under 40 CFR Part 6: `Procedures for
Implementing the National Environmental Policy Act and Assessing the
Environmental Effects Abroad of EPA Actions' '' is available in the
docket for this proposed rulemaking at http://www.regulations.gov and provides

specific reasons for the amended and new extraordinary circumstances
included in the proposed rule. In summary, the intent is to standardize
the essential concepts and combine the variously stated criteria into a
consolidated set of extraordinary circumstances applicable to all EPA
actions subject to NEPA. The proposed extraordinary circumstances are
not intended to be a listing of requirements for preparing EISs.
Rather, they are to be used to determine whether a categorical
exclusion applies to the action. If not, the EPA Responsible Official
may prepare an environmental assessment to determine whether a finding
of no significant impact, or an EIS, is the appropriate NEPA document
for the project, or the Responsible Official proceeds directly with
preparing an EIS.
    Criteria for Actions that Generally Require EISs. EPA's proposed
rule identifies 11 criteria for actions that generally require an EIS.
These proposed criteria are substantially the same as, or similar to,
16 of the 17 criteria in EPA's current NEPA implementing regulations.
The criterion in EPA's current rule at Sec.  6.509(b), `the project is
highly controversial,' is not included in the proposed criteria for
actions that generally require EISs because EPA believes that the
potential environmental impacts of such a project may not necessarily
rise to the level of significance such that an EIS is generally
required; e.g., an environmental assessment with provisions for
mitigation could be the appropriate level of environmental review for
the action. Further, as stated in the current rule, there is no direct
tie to environmental impacts. Rather, EPA's proposed rule includes an
extraordinary circumstance at Sec.  6.204(b)(8) that addresses this
concept, including the potential for environmental impact.
    EPA's ``Supporting Statement for Amended and New Categorical
Exclusions, Extraordinary Circumstances, and Criteria for Actions that
Generally Require EISs under 40 CFR Part 6: `Procedures for
Implementing the National Environmental Policy Act and Assessing the
Environmental Effects Abroad of EPA Actions' '' is available in the
docket for this proposed rulemaking at http://www.regulations.gov and provides

specific reasons for the amended criteria for actions that generally
require EISs included in the proposed rule. In summary, the intent is
to standardize the essential concepts and combine the variously stated
criteria into a consolidated set of criteria for actions that generally
require EISs that are applicable to all EPA actions subject to NEPA.
The proposed criteria are not intended to be a listing of requirements
for preparing EISs in all cases. This is because not all actions
examined under the criteria rise to the level of significance such that
EISs are required (e.g., an environmental assessment with provisions
for mitigation could be the appropriate level of environmental review
for an action).
    In keeping with the public comment process for this proposed
rulemaking, EPA is interested in the public's comments on these
proposed amended and new categorical exclusions, extraordinary
circumstances, and criteria for actions that generally require an EIS.

VI. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
    In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. A copy of the analysis is
available in the docket for this action and the analysis is briefly
summarized here. The total annual public reporting and recordkeeping
burden for this collection of information is estimated at 48,147 hours
and

$3,823,740 for contractor hours and costs, direct labor hours and
costs, and O&M costs. This burden reflects the annual preparation of
documentation for an anticipated 312 applicant-proposed projects that
may be documented with a CE, or an EA/FONSI, or an EIS/ROD. Under the
proposed rule, EPA assumes there will be approximately 300 grantee
projects annually with about 60% of these projects documented with a
CE, and about 40% with an EA/FONSI. In addition, EPA estimates that one
project will have an EIS/ROD completed during the 3-year period of this
ICR. For permit applicants, EPA assumes there will be approximately 12
projects annually with about 11 documented with an EA/FONSI. In
addition, EPA estimates one project will have an EIS/ROD completed
annually. None will be documented initially with a CE. Over a 3-year
period, EPA anticipates 937 applicant-proposed projects with a 3-year
total burden estimate of 144,440 hours and $11,471,220. Under the
current rule, the individual cost for each type of documentation is the
same. However, EPA estimates that 50% of grantee projects are
documented with a CE, and 50% are documented with an EA/FONSI.
Approximately one project will have an EIS/ROD completed per three-year
period, and project estimates for permit applicants are approximately
the same (11 projects documented with an EA/FONSI; 1 project documented
with an EIS/ROD). The total burden of the current rule is 54,497 hours
and $4,275,180. The proposed rule would decrease the number of hours
spent on documentation by 6,350 hours, and would have an annual yearly
savings of $451,440. Over a three-year period, the proposed rule would
decrease burden by 19,050 hours and $1,354,320. Burden means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.

B. Paperwork Reduction Act

    The information collection requirements of this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2243.02.
    The Environmental Protection Agency (EPA or Agency) is proposing to
amend its procedures for implementing the requirements of the National
Environmental Policy Act of 1969 (NEPA). Today's proposed rule also
includes minor, technical amendments to the Agency's procedures for
implementing Executive Order 12114, ``Environmental Effects Abroad of
Major Federal Actions.''
    EPA is collecting information from certain applicants as part of
the process of complying with either NEPA or Executive Order 12114.
EPA's Executive Order 12114 procedures further the purpose of NEPA and
provide that EPA may be guided by these procedures to the extent they
are applicable. Therefore, when EPA conducts an environmental
assessment pursuant to its Executive Order 12114 procedures, the Agency
generally follows its NEPA procedures. For this ICR, applicant-proposed
projects subject to either NEPA or Executive Order 12114 (and that are
not addressed in other EPA programs' ICRs), are addressed through the
NEPA assessment process.
    Those subject to the proposed rule include EPA employees who must
comply with NEPA and certain grant and permit applicants who must
submit environmental information to EPA for their proposed projects.
The EPA Responsible Official is responsible for the environmental
review process, including any categorical exclusion determination or
the scope, accuracy, and contents of a final environmental assessment
(EA) or environmental impact statement (EIS) and any associated
documents. The applicant contributes by submitting environmental
information to EPA as part of the environmental review process. The
information collected from grant or permit applicants is one-time only
on a per-project basis for EPA actions subject to NEPA that are based
on applicant proposals. Grantees (primarily grants for special projects
identified in EPA's State and Tribal Assistance Grants (STAG) account)
or permit applicants (for new source NPDES permits issued by EPA) are
required to provide environmental information to EPA as part of the
environmental review process unless the EPA Responsible Official
decides to prepare the NEPA documents without assistance from the
applicant. If the applicant cannot afford to provide the required
environmental information to EPA, then EPA would undertake the
environmental review without input from the applicant. Further,
grantees may be grant-eligible for certain costs associated with
providing environmental information to EPA; permit applicants are not
eligible for EPA financial assistance.
    The NEPA review for a project may result in a categorical exclusion
(CE), or an EA documented with a finding of no significant impact (EA/
FONSI), or an EIS documented with a record of decision (EIS/ROD). (EPA
assumes a project may be documented with a CE only for grantee-proposed
projects. EPA does not anticipate that an initial new source NPDES
permit application would be documented with a CE.) For any specific
project, only one of these levels of documentation is generally
prepared. Applicants may submit an environmental information document
(EID) to EPA as part of the environmental review process. Alternately,
an applicant may submit a draft EA or a draft EIS and supporting
documents. Applicants may prepare and submit the information directly,
or may enter a third-party contract agreement with EPA for preparation
of an EA or EIS and supporting documentation. For purposes of
determining the maximum costs to applicants for this ICR, EPA assumed
that grant and permit applicants would expend time and contractor costs
to submit: (1) Information to support application of a CE with
environmental information prepared directly by the applicant's
contractor; or (2) a draft EA and supporting documents prepared
directly by the applicant's contractor; or (3) a draft and final EIS
and supporting documents prepared by the applicant's contractor under a
third-party contract agreement with EPA.
    Based on EPA's past experience, under the proposed rule, EPA
anticipates there will be approximately 300 grantee projects annually
with about 60% of these projects documented with a CE, and about 40%
with an EA/FONSI. In addition, EPA estimates that one project (less
than one percent of the total annual grantee projects) will have an
EIS/ROD completed during the 3-year period of this ICR. For permit
applicants, EPA assumes there will be approximately 12 projects
annually with about 11 of the projects documented with an EA/FONSI. In
addition, EPA estimates one project will have an EIS/

ROD completed annually. None will be documented initially with a CE.
EPA estimated the one-time costs for applicants to prepare the
environmental documentation by including contractor hours and costs,
direct labor hours and costs, and O&M for documentation submitted to
EPA to support a CE determination, or an EA/FONSI, or an EIS/ROD. For a
grantee, EPA estimates an applicant's one-time costs for submitting
environmental information will be: 45 hours and $3,292 for CE
documentation, or 260 hours and $18,340 for EA/FONSI documentation, or
2,840 hours and $324,480 for EIS/ROD documentation. For a permit
applicant, EPA estimates an applicant's one-time costs for submitting
environmental information will be: 460 hours and $53,940 for EA/FONSI
documentation, or 2,840 hours and $328,880 for EIS/ROD documentation.
These figures may vary depending on the complexity of issues associated
with the project and the availability of relevant information,
particularly for EISs. (For example, EPA's experience with a limited
number of EISs has included one-time costs ranging from nominal for
information submitted by letter to supplement an existing oil and gas
extraction EIS to over a million dollars for new EISs for a mining
project and an oil and gas extraction project with multiple complex
issues.) EPA believes the calculations for this ICR are representative
of most projects.
    For purposes of this ICR, the total annual public reporting and
recordkeeping burden for this collection of information is estimated at
48,147 hours and $3,823,740 for contractor hours and costs, direct
labor hours and costs, and O&M costs. This burden reflects the annual
submission of documentation for an anticipated 312 applicant-proposed
projects that may be documented with a CE, or an EA/FONSI, or an EIS/
ROD. Under the proposed rule, EPA assumes there will be approximately
300 grantee projects annually with about 60% of these projects
documented with a CE, and about 40% with an EA/FONSI. In addition, EPA
estimates that one project will have an EIS/ROD completed during the 3-
year period of this ICR. For permit applicants, EPA assumes there will
be approximately 12 projects annually with about 11 documented with an
EA/FONSI. In addition, EPA estimates one project will have an EIS/ROD
completed annually. None will be documented initially with a CE. The
total burden estimate for this ICR reduces the burden of the previous
collection by 6,350 hours and $451,440 (the previous collection
estimated that there were approximately 300 grantee projects annually
with about 50% of these projects documented with a CE and about 50%
documented with an EA/FONSI. Approximately one project completed an
EIS/ROD during the 3-year period of the ICR). Over the 3-year period of
this ICR, EPA anticipates 937 applicant-proposed projects with a 3-year
total burden estimate of 144,440 hours and $11,471,220. For the 3-year
period of this ICR, the proposed rule would reduce the total burden by
19,050 hours and $1,354,320. Burden means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR Part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this proposed rule,
which includes this ICR, under Docket ID number EPA-HQ-OECA-2005-0062.
Submit any comments related to the ICR for this proposed rule to EPA
and OMB. See ADDRESSEES section of the beginning of this notice for
where to submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after December 19, 2006, a comment to OMB is
best assured of having its full effect if OMB receives it by January
18, 2007. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.

C . Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. We are
proposing amendments to the Agency's procedures for implementing the
requirements of the National Environmental Policy Act of 1969 (NEPA).
This proposed rule also includes minor, technical amendments to the
Agency's procedures for implementing Executive Order 12114,
``Environmental Effects Abroad of Major Federal Actions.''
    Certain applicants must submit environmental information to EPA as
part of the process of complying with either NEPA or Executive Order
12114. EPA's Executive Order 12114 procedures further the purpose of
NEPA and provide that EPA may be guided by these procedures to the
extent they are applicable. Therefore, when EPA conducts an
environmental assessment pursuant to its Executive Order 12114
procedures, the Agency generally follows its NEPA procedures.
    This proposed rule is applicable to certain EPA actions subject to
NEPA, including certain applicant-proposed projects. Because the
projects are proposed by the applicants, who are non-federal entities,
including small businesses and small governments, EPA does not know
what projects will be proposed, when they will be proposed, or what
level of NEPA review will be

required for each individual project. In this regard, EPA's NEPA review
process is reactive to an applicant's request. These factors are built
into this screening assessment, including assumptions about the
entities likely to be subject to the regulations, the types of projects
they are likely to propose, and the degree of possible economic impact
based on the NEPA review process and the three levels of environmental
documentation possible under this process using available historical
information as future indicators. More detailed information on the
small entity screening analysis can be found in the docket for this
proposed rulemaking, EPA-HQ-OECA-2005-0062 (available at http://www.regulations.gov
), and is summarized below.

    Based on EPA's past experience, EPA anticipates that annually there
will be approximately 170 small governments applying to EPA for STAG
grants for projects subject to NEPA, and four small businesses applying
to EPA for new source NPDES permits for a total of approximately 174
small entities out of potential 312 total entities. Of the 174 small
entities possibly affected by this proposed rule, we have determined
that the economic impact of submitting one-time environmental
documentation to support a CE determination would be less than 1% of
annual revenues for all small entities; and that for the one-time costs
associated with submitting EA-related environmental documentation six
small entities (3.4%) could experience an economic impact of 1-3%, and
up to four small entities (2%) could experience an economic impact of
greater than 3%. Additionally, we have also determined that
approximately 57 of the 174 small entities (33%) could experience an
economic impact of 1-3%, and up to 26 of the 174 small entities (15%)
could experience an economic impact of greater than 3% for the one-time
costs associated with submitting EIS-related environmental
documentation. In all, these approximately 83 small entities represent
about 48% of the estimated 174 total number of small entities that
could experience a one-time economic impact of 1-3% or greater of
annual revenues. Of these 83 small entities, 79 are likely to be
governmental grant applicants and could be grant-eligible for EPA
financial assistance with only one EIS anticipated per three years with
this likelihood spread over 300 total grant applicants, including small
and large governments, including tribes, and special districts.
    Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this proposed rule on small entities. The
environmental information submitted by an applicant under the proposed
rule is one-time only for EPA actions subject to NEPA based on
applicant proposals; i.e., actions proposed by grantees seeking funding
assistance from EPA or for an NPDES permit application initiated by the
permit applicant. In either case, EPA assumes the action will directly
benefit the applicant (such as a grantee seeking STAG funding for
renovation of a community drinking water system, or a permit applicant
seeking an NPDES permit from EPA to further the applicant's business
interests). Nonetheless, if the applicant cannot afford to provide the
required environmental information to EPA, then EPA would undertake the
environmental review without input from the applicant. (Applicants
would normally be requested to demonstrate financial hardship,
including inability to provide the requested environmental
information.) Grantees may be grant-eligible for certain costs
associated with providing environmental information to EPA; permit
applicants are not eligible for EPA financial assistance. Further, EPA
has attempted to reduce the cost on all entities, including small
entities, through the following provisions of the proposed rule:
Section 6.300 provides that an EID is not required when the action is
categorically excluded, or the applicant will prepare a draft EA and
supporting documents. The Responsible Official may prepare the NEPA
documents without assistance from the applicant. Section 6.302 provides
that the Responsible Official may prepare generic guidance for
categories of actions involving a large number of applicants; and must
ensure early involvement of applicants, consult with the applicant and
provide guidance describing the scope and level of environmental
information required, and provide guidance on a project-by-project
basis to any applicant seeking assistance. This Section also provides
that the Responsible Official must consider the extent to which the
applicant is capable of providing the required information, must not
require the applicant to gather data or perform analyses that
unnecessarily duplicate either existing data or the results of existing
analyses available to EPA, and must limit the request for environmental
information to that necessary for the environmental review. Section
6.303 provides that an applicant may enter into a third-party agreement
with EPA. For grantees, third-party agreement contractor costs may be
grant-eligible. Permit applicants are not eligible for EPA financial
assistance.
    We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year.
    EPA is proposing to amend its procedures for implementing the
requirements of the National

Environmental Policy Act of 1969 (NEPA). Today's proposed rule also
includes minor, technical amendments to the Agency's procedures for
implementing Executive Order 12114, ``Environmental Effects Abroad of
Major Federal Actions.''
    EPA is collecting information from certain applicants as part of
the process of complying with either NEPA or Executive Order 12114.
EPA's Executive Order 12114 procedures further the purpose of NEPA and
provide that EPA may be guided by these procedures to the extent they
are applicable. Therefore, when EPA conducts an environmental
assessment pursuant to its Executive Order 12114 procedures, the Agency
generally follows its NEPA procedures. For purposes of UMRA, applicant-
proposed projects subject to either NEPA or Executive Order 12114 are
addressed through the NEPA assessment process.
    Those subject to the proposed NEPA rule include EPA employees who
must comply with NEPA and certain grant and permit applicants who must
submit environmental information to EPA for their proposed projects.
The EPA Responsible Official is responsible for the environmental
review process, including any categorical exclusion (CE) determination
or the scope, accuracy, and contents of a final environmental
assessment (EA) or environmental impact statement (EIS) and any
associated documents. The applicant contributes by submitting
environmental information to EPA as part of the environmental review
process. The information submitted by grant or permit applicants is
one-time only on a per-project basis for EPA actions subject to NEPA
that are based on applicant proposals. Grantees are generally
governmental jurisdictions, including State and local governments, and
tribes applying to EPA for special projects identified in EPA's State
and Tribal Assistance Grants (STAG account) or private sector
applicants for new source NPDES permits issued by EPA. Applicants are
required to provide environmental information to EPA as part of the
environmental review process unless the EPA Responsible Official
decides to prepare the NEPA documents without assistance from the
applicant. If the applicant, including governmental grantees, cannot
afford to provide the required environmental information to EPA, then
EPA would undertake the environmental review without input from the
applicant. Further, governmental grantees may be grant-eligible for
certain costs associated with providing environmental information to
EPA.
    The NEPA review for a project may result in a CE determination, or
an EA documented with a finding of no significant impact (EA/FONSI), or
an EIS documented with a record of decision (EIS/ROD). For any specific
project, only one of these levels of documentation is generally
prepared. Applicants may submit an environmental information document
(EID) to EPA as part of the environmental review process. Alternately,
an applicant may submit a draft EA or a draft EIS and supporting
documents. Applicants may prepare and submit the information directly,
or may enter a third-party contract agreement with EPA for preparation
of an EA or EIS and supporting documentation. Governmental grantees may
be grant-eligible for certain costs associated with providing
environmental information to EPA, including certain third-party
contract costs; private sector permit applicants are not eligible for
EPA financial assistance. For purposes of maximum cost estimates to
applicants for UMRA purposes, EPA assumed that applicants would expend
time and contractor costs to submit: (1) Information to support
application of a CE with environmental information prepared directly by
the applicant's contractor; or (2) a draft EA and supporting documents
prepared directly by the applicant's contractor; or (3) a draft and
final EIS and supporting documents prepared by the applicant's
contractor under a third-party contract agreement with EPA.
    Based on EPA's past experience, under the proposed rule, EPA
anticipates there will be approximately 300 grantee projects annually
with about 60% of these projects documented with a CE, and about 40%
with an EA/FONSI. In addition, EPA estimates that one project (less
than one percent of the total annual grantee projects) will have an
EIS/ROD completed during a 3-year period. For permit applicants, EPA
assumes there will be approximately 12 projects annually with about 11
of the projects documented with an EA/FONSI. In addition, EPA estimates
one project will have an EIS/ROD completed annually. None of the
projects will be documented initially with a CE. EPA estimated one-time
costs for applicants to prepare the environmental documentation by
including contractor hours and costs, direct labor hours and costs, and
O&M for documentation submitted to EPA to support a CE determination,
or an EA/FONSI, or an EIS/ROD. For a grantee, EPA estimates an
applicant's one-time costs for submitting environmental information
will be: $3,292 for CE documentation, or $18,340 for EA/FONSI
documentation, or $324,480 for EIS/ROD documentation. For a permit
applicant, EPA estimates an applicant's one-time costs for submitting
environmental information will be: $53,940 for EA/FONSI documentation,
or $328,880 for EIS/ROD documentation. These figures may vary depending
on the complexity of issues associated with the project and the
availability of relevant information, particularly for EISs. (For
example, EPA's experience with a limited number of EISs has included
one-time costs ranging from nominal for information submitted by letter
to supplement an existing oil and gas extraction EIS to over a million
dollars for new EISs for a mining project and an oil and gas extraction
project with multiple complex issues.) EPA believes the calculation for
this UMRA assessment is representative of most projects. On an annual
one-time submission basis, EPA's aggregate estimate for applicants is
$3,823,740 for contractor hours and costs, direct labor hours and
costs, including third-year costs for an EIS/ROD for one grantee
project. The requirement in today's proposed rule for applicants to
submit one-time, project-specific environmental information does not
impose substantial compliance costs on applicants, including
governmental grantees, because it is not likely to result in the
expenditure by applicants, including State and local governments, and
tribes, in the aggregate, or the private sector, of $100 million or
more in any one year. Thus, today's proposed rule is not subject to the
requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    Neither the proposed amendments to EPA's NEPA implementing
regulations nor the minor, technical amendments to EPA's procedures
implementing Executive Order 12114 have federalism implications. They
will not have substantial direct effects on the States, on the
relationship between the national

government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. The proposed NEPA regulations do not impose
new regulatory obligations on the States. Under EPA's current NEPA
regulations, as well as the proposed rule, State and local governments
are required to submit environmental information only when the State or
local government is a project-applicant for an EPA action subject to
NEPA, for example, when the State or local government applies for a
grant for a special project identified in EPA's State and Tribal
Assistance (STAG) account, or for a new source NPDES permit issued by
EPA. The requirement to submit environmental information to EPA for the
NEPA review does not impose substantial compliance costs because it is
not likely to result in the expenditure by State and local governments
in the aggregate of $100 million or more in any one year. Further, this
requirement does not preempt State law. The proposed minor, technical
amendments to EPA's procedures for implementing Executive Order 12114
do not impose new regulatory obligations on the States or alter the
current relationship between the States and the Federal government.
Under EPA's current Executive Order 12114 regulations, as well as the
proposed amendments, States are required to submit environmental
information only when the State is a project-applicant for an EPA
action subject to Executive Order 12114. The requirement to submit
environmental information to EPA for the Executive Order 12114 review
does not impose substantial compliance costs because it is not likely
to result in the expenditure by State and local governments in the
aggregate of $100 million or more in any one year. Further, this
requirement does not preempt State law. Thus, Executive Order 13132
does not apply to this proposed rule.
    Although this proposed rule does not have federalism implications,
as with EPA's current rule, some parts of the proposed NEPA regulations
might require EPA to involve the States in the NEPA environmental
review process. For example, Sec.  6.202 encourages early coordination
and cooperation with federal agencies, state and local governments, and
tribes with jurisdiction by law or special expertise. Section 6.203
requires the Responsible Official to ensure meaningful public
participation. EPA anticipates that State and local governments would
participate in the public participation process. Section 6.204 of the
proposed NEPA regulations lists extraordinary circumstances that would
bar the Responsible Official from determining that a categorical
exclusion applies to the action. The Responsible Official may ask the
relevant State for assistance in determining whether the proposed
action meets these criteria.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175.
    Neither the proposed amendments to EPA's NEPA implementing
regulations nor the minor, technical amendments to EPA's procedures
implementing Executive Order 12114 impose new regulatory obligations on
tribes. They will not have substantial direct effects on tribes, on the
relationship between the national government and tribes, or on the
distribution of power and responsibilities between the national
government and tribes. Under EPA's current regulations, as well as the
proposed rule, Tribes are required to submit environmental information
only when the Tribes are project-applicants for EPA actions subject to
NEPA or Executive Order 12114, for example, when Tribes apply for
grants for special projects identified in EPA's State and Tribal
Assistance (STAG) account, or for new source NPDES permits issued by
EPA. The requirement to submit environmental information to EPA for the
environmental review process do not impose substantial compliance costs
because it is not likely to result in the expenditure by state, local,
and tribal governments in the aggregate of $100 million or more in any
one year. Further, these requirements do not preempt tribal law. Thus,
Executive Order 13175 does not apply to this proposed rule.
    Although this proposed rule does not have Executive Order 13175
implications, as with EPA's current rule, some parts of the proposed
NEPA regulations might require EPA to involve tribes in the
environmental review process. For example, Sec.  6.202 encourages early
coordination and cooperation with federal agencies, state and local
governments, and tribes with jurisdiction by law or special expertise.
Section 6.203 requires the Responsible Official to ensure meaningful
public participation. EPA anticipates that tribes would participate in
the public participation process as appropriate. Section 6.204 of the
proposed NEPA regulations lists extraordinary circumstances that would
bar the Responsible Official from determining that a categorical
exclusion applies to the action. The Responsible Official may ask the
relevant tribe for assistance in determining whether the proposed
action meets these criteria.
    EPA specifically solicits additional comment on this proposed rule
from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed rule, including
the proposed amendments to EPA's NEPA implementing procedures and the
proposed minor, technical amendments to the Agency's procedures for
implementing Executive Order 12114, is not subject to Executive Order
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution and Use

    This proposed rule is not a ``significant energy action'' as
defined in

Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Today's proposed
rule includes EPA's proposed amendments to its procedures for
implementing the requirements of the National Environmental Policy Act
of 1969 and minor, technical amendments to the Agency's procedures for
implementing Executive Order 12114, ``Environmental Effects Abroad of
Major Federal Actions.'' It does not impose new regulatory obligations
related to energy supply, distribution, or use of energy on EPA, state
or local governments, tribes, or individual applicants required to
provide environmental information to EPA for certain grants or permits.
Therefore, we have concluded that this proposed rule is not likely to
have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This proposed
rulemaking, which includes EPA's proposed amendments to its procedures
for implementing the requirements of the National Environmental Policy
Act of 1969 and minor, technical amendments to the Agency's procedures
for implementing Executive Order 12114, ``Environmental Effects Abroad
of Major Federal Actions,'' does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. EPA welcomes comments on this aspect of the proposed
rulemaking and, specifically, invites the public to identify
potentially-applicable voluntary consensus standards and to explain why
such standards should be used in this regulation.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA maintains an ongoing commitment to ensure environmental justice
for all people, regardless of race, color, national origin, or income.
Ensuring environmental justice means not only protecting human health
and the environment for everyone, but also ensuring that all people are
treated fairly and given the opportunity to participate meaningfully in
the development, implementation, and enforcement of environmental laws,
regulations, and policies. In recognizing that minority and/or low-
income communities frequently may be exposed disproportionately to
environmental harms and risks, EPA works to protect these and other
burdened communities from adverse human health and environmental
effects of its programs, consistent with existing environmental and
civil rights laws, and their implementing regulations, as well as
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations.'' (59 FR
7629 (Feb. 11, 1994)). Executive Order 12898 establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and/or low-income populations. In
developing this proposed rule in compliance with Executive Order 12898,
EPA determined that the proposed rule did not raise any environmental
justice concerns.
    Today's proposed rule, including the proposed amendments to EPA's
NEPA implementing procedures and the proposed minor, technical
amendments to the Agency's procedures for implementing Executive Order
12114, does not impose new regulatory program, policy, or activity
obligations on EPA, state or local governments, tribes, or individual
applicants required to provide environmental information to EPA for
certain grants or permits. Therefore, we have concluded that this
proposed rule is not likely to have any adverse effects on minority or
low-income populations, including tribes. However, the proposed NEPA
rule at Sec.  6.201 requires that for specific projects, consistent
with 40 CFR 1500.5(g) and 1502.25, the EPA Responsible Official must
determine the applicability of executive orders, including Executive
Order 12898, and should incorporate applicable requirements as early in
the NEPA review process as possible. In addition, Sec.  6.203(a)(5) and
(c)(3)(iv) require the Responsible Official to choose public
participation methods and engage in outreach designed to reach those in
``potentially affected communities where the proposed action is known
or expected to have potentially significant environmental impacts or
where the proposed action may have disproportionately high and adverse
human health or environmental effects in any communities, including
minority communities, low-income communities, or federally-recognized
Indian tribal communities.'' EPA provides guidance to Responsible
Officials and EPA staff on incorporating environmental justice concerns
into the NEPA analysis. See ``Final Guidance For Incorporating
Environmental Justice Concerns in EPA's NEPA Compliance Analyses,
``April 1998.

List of Subjects in 40 CFR Part 6

    Environmental protection, Environmental assessments, Environmental
impact statements, Environmental protection reporting, Foreign
relations, Grant programs--environmental protection, Reporting and
recordkeeping requirements.

    Dated: December 11, 2006.
Stephen L. Johnson,
Administrator.

    Therefore, for the reasons set forth in the preamble, EPA hereby
proposes to amend title 40 chapter I of the Code of Federal Regulations
by revising part 6 to read as follows:

PART 6--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL
POLICY ACT AND ASSESSING THE ENVIRONMENTAL EFFECTS ABROAD OF EPA
ACTIONS

Subpart A--General Provisions for EPA Actions Subject to NEPA
6.100 Policy and Purpose.
6.101 Applicability.
6.102 Definitions.
6.103 Responsibilities of the NEPA Official and Responsible
Officials.
Subpart B--EPA's NEPA Environmental Review Procedures
6.200 General requirements.
6.201 Coordination with other environmental review requirements.
6.202 Interagency cooperation.
6.203 Public participation.
6.204 Categorical exclusions and extraordinary circumstances.

6.205 Environmental assessments.
6.206 Findings of no significant impact.
6.207 Environmental impact statements.
6.208 Records of decision.
6.209 Filing requirements for EPA EISs.
6.210 Emergency circumstances.
Subpart C--Requirements for Environmental Information Documents and
Third-Party Agreements for EPA Actions Subject to NEPA
6.300 Applicability.
6.301 Applicant requirements.
6.302 Responsible Official requirements.
6.303 Third-party agreements.
Subpart D--Assessing the Environmental Effects Abroad of EPA Actions
6.400 Purpose and policy.
6.401 Applicability.
6.402 Definitions.
6.403 Environmental review and assessment requirements.
6.404 Lead or cooperating agency.
6.405 Exemptions and considerations.
6.406 Implementation.

    Authority: 42 U.S.C. 4321 et seq., 7401-7671q. Subpart D also
issued under 42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR,
1979 Comp., p. 356.

Subpart A--General Provisions for EPA Actions Subject to NEPA

Sec.  6.100  Policy and Purpose.

    (a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 et seq., as implemented by the Council on Environmental Quality
(CEQ) Regulations (40 CFR Parts 1500-1508), requires that Federal
agencies include in their decision-making processes appropriate and
careful consideration of all environmental effects of proposed actions,
analyze potential environmental effects of proposed actions and their
alternatives for public understanding and scrutiny, avoid or minimize
adverse effects of proposed actions, and restore and enhance
environmental quality to the extent practicable. The U.S. Environmental
Protection Agency (EPA) will integrate these NEPA requirements as early
in the Agency planning processes as possible. The environmental review
process will be the focal point to ensure NEPA considerations are taken
into account.
    (b) Through this proposed rule, EPA adopts the CEQ's regulations
(40 CFR Parts 1500-1508) implementing NEPA; subparts A through C of
this part supplement those regulations, for actions proposed by EPA
that are subject to NEPA requirements. Subparts A through C are to be
used in conjunction with the CEQ Regulations.

Sec.  6.101  Applicability.

    (a) Subparts A through C apply to the proposed actions of EPA that
are subject to NEPA. EPA actions subject to NEPA include the award of
wastewater treatment construction grants under Title II of the Clean
Water Act, EPA's issuance of new source National Pollutant Discharge
Elimination System (NPDES) permits under section 402 of the Clean Water
Act, certain research and development projects, development and
issuance of regulations, EPA actions involving renovations or new
construction of facilities, and certain grants awarded for special
projects identified in the State and Tribal Assistance Grants (STAG)
account authorized by Congress through the Agency's annual
Appropriations Act.
    (b) The appropriate Responsible Official will undertake certain EPA
actions required by the provisions of subparts A through C of this
part.
    (c) Certain procedures in subparts A through C of this part apply
to the responsibilities of the NEPA Official.
    (d) Certain procedures in subparts A through C of this part apply
to applicants who are required to provide environmental information to
EPA.
    (e) When the Responsible Official decides to perform an
environmental review under EPA's Voluntary NEPA Policy (see 63 FR
58045), the Responsible Official generally will follow the procedures
set out in subparts A through C of this part.
    (f) Subparts A through C of this part do not apply to the actions
of EPA for which NEPA review is not required, including proposed
actions for which analyses that have been conducted under another
statute have been determined to be functionally equivalent to NEPA.

Sec.  6.102  Definitions.

    (a) Subparts A through C of this part use the definitions found at
40 CFR part 1508. Additional definitions are listed in this subpart.
    (b) Definitions. (1) Administrator means the Administrator of the
United States Environmental Protection Agency.
    (2) Applicant means any individual, agency, or other entity that
has:
    (i) Filed an application for federal assistance; or
    (ii) Applied to EPA for a permit.
    (3) Assistance agreement means an award of federal assistance in
the form of money or property in lieu of money from EPA to an eligible
applicant including grants or cooperative agreements.
    (4) Environmental information document (EID) means a written
analysis prepared by an applicant that provides sufficient information
for the Responsible Official to undertake an environmental review and
prepare either an EA and FONSI or an EIS and record of decision (ROD)
for the proposed action.
    (5) Environmental review or NEPA review means the process used to
comply with section 102(2) of NEPA or the CEQ Regulations including
development, supplementation, adoption, and revision of NEPA documents.
    (6) Extraordinary circumstances means those circumstances listed in
Sec.  6.204 that may cause a significant environmental effect such that
a proposed action that otherwise meets the requirements of a
categorical exclusion may not be categorically excluded.
    (7) NEPA document is a document prepared pursuant to NEPA.
    (8) NEPA Official is the Assistant Administrator for Enforcement
and Compliance Assurance, who is responsible for EPA's NEPA compliance.
    (9) Responsible Official means the EPA official responsible for
compliance with NEPA for individual proposed actions.

Sec.  6.103  Responsibilities of the NEPA Official and Responsible
Officials.

    (a) The NEPA Official will:
    (1) Ensure EPA's compliance with NEPA pursuant to 40 CFR 1507.2(a)
and the regulations in subparts A through C of this part.
    (2) Act as EPA's liaison with the CEQ and other federal agencies,
state and local governments, and federally-recognized Indian tribes on
matters of policy and administrative procedures regarding compliance
with NEPA.
    (3) Approve procedural deviations from subparts A through C of this
part.
    (4) Monitor the overall timeliness and quality of EPA's compliance
with subparts A through C of this part.
    (5) Advise the Administrator on NEPA-related actions that involve
more than one EPA office, are highly controversial, are nationally
significant, or establish new EPA NEPA-related policy.
    (6) Support the Administrator by providing policy guidance on NEPA-
related issues.
    (7) Assist EPA's Responsible Officials with establishing and
maintaining adequate administrative procedures to comply with subparts
A through C of this part, performing their NEPA duties, and training
personnel and applicants involved in the environmental review process.
    (8) Consult with Responsible Officials and CEQ regarding the
addition, amendment, or deletion of a categorical exclusion.

    (b) For individual proposed actions, the Responsible Official will:
    (1) Ensure EPA's compliance with the CEQ regulations and subparts A
through C of this part.
    (2) Ensure that environmental reviews are conducted on proposed
actions at the earliest practicable point in EPA's decision-making
process and in accordance with the provisions of subparts A through C
of this part.
    (3) Ensure, to the extent practicable, early and continued
involvement of interested federal agencies, state and local
governments, federally-recognized Indian tribes, and affected
applicants in the environmental review process.
    (4) Coordinate with the NEPA Official and other Responsible
Officials, as appropriate, on resolving issues involving EPA-wide NEPA
policy and procedures and/or unresolved conflicts with other federal
agencies, state and local governments, and federally-recognized Indian
tribes, and/or advising the Administrator when necessary.
    (5) Coordinate with other Responsible Officials, as appropriate, on
NEPA-related actions involving their specific interests.
    (6) Consistent with national NEPA guidance, provide specific policy
guidance, as appropriate, and ensure that the Responsible Official's
office establishes and maintains adequate administrative procedures to
comply with subparts A through C of this part.
    (7) Upon request of an applicant and consistent with 40 CFR 1501.8,
set time limits on the NEPA review appropriate to individual proposed
actions.
    (8) Make decisions relating to the preparation of the appropriate
NEPA documents, including preparing an EA or EIS, and signing the
decision document.
    (9) Monitor the overall timeliness and quality of the Responsible
Official's respective office's efforts to comply with subparts A
through C of this part.
    (c) The NEPA Official and the Responsible Officials may delegate
NEPA-related responsibilities to a level no lower than the Branch Chief
or equivalent organizational level.

Subpart B--EPA's NEPA Environmental Review Procedures

Sec.  6.200  General requirements.

    (a) The Responsible Official must determine whether the proposed
action meets the criteria for categorical exclusion or whether it
requires preparation of an EA or an EIS to identify and evaluate its
environmental impacts. The Responsible Official may decide to prepare
an EIS without first undertaking an EA.
    (b) The Responsible Official must determine the scope of the
environmental review by considering the type of proposed action, the
reasonable alternatives, and the type of environmental impacts. The
scope of an EIS will be determined as provided in 40 CFR 1508.25.
    (c) During the environmental review process, the Responsible
Official must:
    (1) Integrate the NEPA process and the procedures of subparts A
through C of this part into early planning to ensure appropriate
consideration of NEPA's policies and to minimize or eliminate delay;
    (2) Emphasize cooperative consultation among federal agencies,
state and local governments, and federally-recognized Indian tribes
before an EA or EIS is prepared to help ensure compliance with the
procedural provisions of subparts A through C of this part and with
other environmental review requirements, to address the need for
interagency cooperation, to identify the requirements for other
agencies' reviews, and to ensure appropriate public participation.
    (3) Identify at an early stage any potentially significant
environmental issues to be evaluated in detail and insignificant issues
to be de-emphasized, focusing the scope of the environmental review
accordingly;
    (4) Involve other agencies and the public, as appropriate, in the
environmental review process for proposed actions that are not
categorically excluded to:
    (i) Identify the federal, state, local, and federally-recognized
Indian tribal entities and the members of the public that may have an
interest in the action;
    (ii) Request that appropriate federal, state, and local agencies
and federally-recognized Indian tribes serve as cooperating agencies
consistent with 40 CFR 1501.6 and 1508.5; and
    (iii) Integrate, where possible, review of applicable federal laws
and executive orders into the environmental review process in
conjunction with the development of NEPA documents.
    (d) When preparing NEPA documents, the Responsible Official must:
    (1) Utilize a systematic, interdisciplinary approach to integrate
the natural and social sciences with the environmental design arts in
planning and making decisions on proposed actions subject to
environmental review under subparts A through C of this part (see 40
CFR 1501.2(a) and 1507.2);
    (2) Plan adequate time and funding for the NEPA review and
preparation of the NEPA documents. Planning includes consideration of
whether an applicant will be required to prepare an EID for the
proposed action.
    (3) Review relevant planning or decision-making documents, whether
prepared by EPA or another federal agency, to determine if the proposed
action or any of its alternatives have been considered in a prior
federal NEPA document. EPA may adopt the existing document, or will
incorporate by reference any pertinent part of it, consistent with 40
CFR 1506.3 and 1502.21.
    (4) Review relevant environmental review document prepared by a
state or local government or federally-recognized Indian tribe to
determine if the proposed action or any of its alternatives have been
considered in such a document. EPA will incorporate by reference any
pertinent part of that document consistent with 40 CFR 1502.21.
    (e) During the decision-making process for the proposed action, the
Responsible Official must:
    (1) Incorporate the NEPA review in decision-making on the action.
Processing and review of an applicant's application must proceed
concurrently with the NEPA review procedures set out in subparts A
through C of this part. EPA must complete its NEPA review before making
a decision on the action.
    (2) Consider the relevant NEPA documents, public and other agency
comments (if any) on those documents, and EPA responses to those
comments, as part of consideration of the action (see 40 CFR
1505.1(d)).
    (3) Consider the alternatives analyzed in an EA or EIS before
rendering a decision on the action; and
    (4) Ensure that the decision on the action is to implement an
alternative analyzed or is within the range of alternatives analyzed in
the EA or EIS (see 40 CFR 1505.1(e)).
    (f) To eliminate duplication and to foster efficiency, the
Responsible Official should use tiering (see 40 CFR 1502.20 and
1508.28) and incorporate material by reference (see 40 CFR 1502.21) as
appropriate.
    (g) For applicant-related proposed actions:
    (1) The Responsible Official may request that the applicant submit
information to support the application of a categorical exclusion to
the applicant's pending action.
    (2) The Responsible Official may gather the information and prepare
the NEPA document without assistance from the applicant, or, pursuant
to Subpart C of this part, have the applicant prepare an EID or a draft
EA and supporting documents, or enter into

a third-party agreement with the applicant.
    (3) During the environmental review process, applicants may
continue to compile additional information needed for the environmental
review and/or information necessary to support an application for a
permit or assistance agreement from EPA.
    (h) For all NEPA determinations (CEs, EA/FONSIs, or EIS/RODs) that
are five years old or older, and for which the subject action has not
yet been implemented, the Responsible Official must re-evaluate the
proposed action, environmental conditions, and public views to
determine whether to conduct a supplemental environmental review of the
action and complete an appropriate NEPA document or reaffirm EPA's
original NEPA determination. If there has been substantial change in
the proposed action that is relevant to environmental concerns, or if
there are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts, the Responsible Official must conduct a supplemental
environmental review of the action and complete an appropriate NEPA
document.

Sec.  6.201  Coordination with other environmental review requirements.

    Consistent with 40 CFR 1500.5(g) and 1502.25, the Responsible
Official must determine the applicability of other environmental laws
and executive orders, to the fullest extent possible. The Responsible
Official should incorporate applicable requirements as early in the
NEPA review process as possible.

Sec.  6.202  Interagency cooperation.

    (a) Consistent with 40 CFR 1501.5, 1501.6, and 1508.5, the
Responsible Official will request other appropriate federal and non-
federal agencies to be joint lead or cooperating agencies in the
preparation of NEPA documents for actions as a means of encouraging
early coordination and cooperation with federal agencies, state and
local governments, and federally-recognized Indian tribes with
jurisdiction by law or special expertise.
    (b) For an EPA action related to an action of any other federal
agency, the Responsible Official must comply with the requirements of
40 CFR 1501.5 and 1501.6 relating to lead agencies and cooperating
agencies, respectively. The Responsible Official will work with the
other involved agencies to facilitate coordination and to reduce delay
and duplication.
    (c) To prepare a single document to fulfill both NEPA and state or
local government, or federally-recognized Indian tribe requirements,
consistent with 40 CFR 1506.2, the Responsible Official should enter
into a written agreement with the involved state or local government,
or federally-recognized Indian tribe that sets out the intentions of
the parties, including the responsibilities each party intends to
assume and procedures the parties intend to follow.