75628 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

1A discussion of NEPA applicability is beyond 

the scope of this guidance. For more information 

see CEQ, The Citizen’s Guide to the National 

Environmental Policy Act, available at 

ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf. 

2For more information on this announcement, 

see http://www.whitehouse.gov/administration/eop/ 

ceq/initiatives/nepa. 

3National Environmental Policy Act (NEPA) Draft 

Guidance, Establishing, Applying, and Revising 

Categorical Exclusions under the National 

Environmental Policy Act, 75 FR 8045, Feb. 23, 

2010. 

COUNCIL ON ENVIRONMENTAL 

QUALITY 

40 CFR Parts 1500, 1501, 1502, 1503, 

1504, 1505, 1506, 1507, and 1508 

Final Guidance for Federal 

Departments and Agencies on 

Establishing, Applying, and Revising 

Categorical Exclusions Under the 

National Environmental Policy Act 

AGENCY: Council on Environmental 

Quality. 

ACTION: Notice of availability. 

SUMMARY: The Council on 

Environmental Quality (CEQ) is issuing 

its final guidance on categorical 

exclusions. This guidance provides 

methods for substantiating categorical 

exclusions, clarifies the process for 

establishing categorical exclusions, 

outlines how agencies should engage 

the public when establishing and using 

categorical exclusions, describes how 

agencies can document the use of 

categorical exclusions, and recommends 

periodic agency review of existing 

categorical exclusions. A categorical 

exclusion is a category of actions that a 

Federal agency determines does not 

normally result in individually or 

cumulatively significant environmental 

effects. This guidance clarifies the rules 

for establishing, applying, and revising 

categorical exclusions. It applies to 

categorical exclusions established by 

Federal agencies in accordance with 

CEQ regulations for implementing the 

procedural provisions of the National 

Environmental Policy Act. The guidance 

was developed to assist agencies in 

making their implementation of the 

National Environmental Policy Act 

(NEPA) more transparent and efficient. 

DATES: The guidance is effective 

December 6, 2010. 

FOR FURTHER INFORMATION CONTACT: The 

Council on Environmental Quality 

(ATTN: Horst Greczmiel, Associate 

Director for National Environmental 

Policy Act Oversight), 722 Jackson 

Place, NW., Washington, DC 20503. 

Telephone: (202) 395–5750. 

SUPPLEMENTARY INFORMATION: This 

guidance applies to categorical 

exclusions established by Federal 

agencies in accordance with § 1507.3 of 

the CEQ Regulations for Implementing 

the Procedural Provisions of the 

National Environmental Policy Act, 40 

CFR parts 1500–1508. 

Enacted in 1970, the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 4321–4370, is a fundamental tool 

used to harmonize our environmental, 

economic, and social aspirations and is 

a cornerstone of our Nation’s efforts to 

protect the environment. NEPA 

recognizes that many Federal activities 

affect the environment and mandates 

that Federal agencies consider the 

environmental impacts of their 

proposed actions before deciding to 

adopt proposals and take action.1 Many 

Federal actions do not normally have 

significant effects on the environment. 

When agencies identify categories of 

activities that do not normally have the 

potential for individually or 

cumulatively significant impacts, they 

may establish a categorical exclusion for 

those activities. The use of categorical 

exclusions can reduce paperwork and 

delay, so that more resources are 

available to assess proposed actions that 

are likely to have the potential to cause 

significant environmental effects in an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

This guidance clarifies the rules for 

establishing categorical exclusions by 

describing: (1) How to establish or 

revise a categorical exclusion; (2) how to 

use public involvement and 

documentation to help define and 

substantiate a proposed categorical 

exclusion; (3) how to apply an 

established categorical exclusion; (4) 

how to determine when to prepare 

documentation and involve the public 

when applying a categorical exclusion; 

and (5) how to conduct periodic reviews 

of categorical exclusions to assure their 

continued appropriate use and 

usefulness. 

On February 18, 2010, the Council on 

Environmental Quality announced three 

proposed draft guidance documents to 

modernize and reinvigorate NEPA, in 

conjunction with the fortieth 

anniversary of the statute’s enactment.2

This guidance document is the first of 

those three to be released in final form. 

With respect to the other two guidance 

documents, one addresses when and 

how Federal agencies should consider 

greenhouse gas emissions and climate 

change in their proposed actions, and 

the other addresses when agencies need 

to monitor commitments made in EAs 

and EISs, and how agencies can 

appropriately use mitigated ‘‘Findings of 

No Significant Impact.’’ The Federal 

Register notice announcing the draft 

categorical exclusion guidance and 

requesting public comments was 

published on February 23, 2010.3 CEQ 

appreciates the thoughtful responses to 

its request for comments on the draft 

guidance. Commenters included private 

citizens, corporations, environmental 

organizations, trade associations, and 

State agencies. CEQ received fifty-eight 

comments, which are available online at 

http://www.whitehouse.gov/ 

administration/eop/ceq/initiatives/ 

nepa/comments and at http:// 

www.nepa.gov. The comments that 

suggested editorial revisions and 

requested clarification of terms are 

addressed in the text of the final 

guidance. Comments that raised policy 

or substantive concerns are grouped into 

thematic issues and addressed in the 

following sections of this notice. 

Process for Developing and Using 

Categorical Exclusions 

Many commenters expressed support 

for CEQ’s categorical exclusion 

guidance and for the timely and 

efficient use of categorical exclusions in 

the NEPA environmental review process 

to inform agency decisionmaking. Some 

commenters favored guidance that 

would limit the use of categorical 

exclusions. Others expressed concern 

that this guidance will discourage the 

appropriate use of categorical 

exclusions or make the NEPA process 

more difficult for agencies, and thereby 

delay agency decisionmaking. 

This guidance was developed to 

provide for the consistent, proper, and 

appropriate development and use of 

categorical exclusions by Federal 

agencies. It reinforces the process 

required to establish categorical 

exclusions by explaining methods 

available to substantiate categorical 

exclusions. It also seeks to ensure 

opportunities for public involvement 

and increasing transparency when 

Federal agencies establish categorical 

exclusions and subsequently use those 

categorical exclusions to satisfy their 

NEPA obligations for specific proposed 

actions. Additionally, this guidance 

affords Federal agencies flexibility in 

developing and implementing 

categorical exclusions while ensuring 

that categorical exclusions are 

administered in compliance with NEPA 

and the CEQ Regulations. When 

appropriately established and applied, 

categorical exclusions expedite the 

environmental review process for 

proposals that normally do not require 

additional analysis and documentation 

in an EA or an EIS. 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75629 

4See 40 CFR 1506.6(a) (requiring agencies to 

make diligent efforts to involve the public in 

preparing and implementing their NEPA 

procedures). 

Applicability and Limitations 

Some commenters expressed concern 

that the guidance creates additional 

limitations and constraints on the 

establishment of categorical exclusions, 

while others expressed unqualified 

support for using text that constrains the 

scope of the actions to which a 

categorical exclusion could apply. The 

discussion in the guidance of physical, 

temporal, or environmental factors that 

would constrain the use of a categorical 

exclusion is consistent with NEPA and 

past CEQ guidance. 

Federal agencies that identify 

physical, temporal, or environmental 

constraints in the definition of a 

proposed category of actions may be 

able to better ensure that a new or 

revised categorical exclusion is neither 

too broadly nor too narrowly defined. 

Some information regarding 

implementation of mitigation measures 

that are an integral part of the proposed 

actions and how those actions will be 

carried out may be necessary to 

adequately understand and describe the 

category of actions and their projected 

impacts. A better and more 

comprehensive description of a category 

of actions provides clarity and 

transparency for proposed projects that 

could be categorically excluded from 

further analysis and documentation in 

an EA or an EIS. 

Public Involvement 

Some commenters expressed concern 

over the timeliness and burden of NEPA 

reviews when there is greater public 

involvement. The final guidance makes 

it clear that CEQ strongly encourages 

public involvement in the establishment 

and revision of categorical exclusions. 

As the guidance explains, engaging the 

public in the environmental aspects of 

Federal decisionmaking is a key policy 

goal of NEPA and the CEQ Regulations. 

Public involvement is not limited to the 

provision of information by agencies; it 

should also include meaningful 

opportunities for the public to provide 

comment and feedback on the 

information made available. 

Considering recent advances in 

information technology, agencies should 

consider employing additional measures 

to involve the public beyond simply 

publishing a Federal Register notice as 

required when an agency seeks to 

establish new or revised categorical 

exclusions.4

The perceived environmental effects 

of the proposed category of actions are 

a factor that an agency should consider 

when it decides whether there is a need 

for public involvement in determining 

whether to apply a categorical 

exclusion. Accordingly, the guidance 

clarifies that agencies have flexibility 

when applying categorical exclusions to 

focus their public involvement on those 

proposed actions and issues the agency 

expects to raise environmental issues 

and concerns that are important to the 

public. 

In the final guidance, CEQ uses the 

terms ‘‘encourage’’ and ‘‘recommend’’ 

interchangeably. The language of the 

guidance relating to public engagement 

reflects CEQ’s authority under NEPA 

and the CEQ regulations to guide agency 

development and implementation of 

agency NEPA procedures. It also reflects 

the importance of allowing agencies to 

use their expertise to determine the 

appropriate level of engagement with 

the public. 

Substantiating and Documenting 

Categorical Exclusions 

Some commenters raised the concern 

that the requirement to substantiate and 

document categorical exclusions would 

be burdensome and cause delay. One 

commenter recommended that the 

guidance should encourage consultation 

with State agencies, other Federal 

agencies with special expertise, and 

other stakeholders. Another commenter 

suggested that the guidance permit 

agencies to consult with industry 

project proponents that possess 

information that would be useful in 

substantiating a categorical exclusion. 

Along the same lines, another 

commenter stated that agencies should 

be encouraged to seek information from 

the most relevant and reliable sources 

possible. 

The guidance has been revised to 

reflect that, when substantiating and 

documenting the environmental effects 

of a category of actions, a Federal 

agency need not be limited to its own 

experiences. Instead, the agency should 

consider information and records from 

other private and public entities, 

including other Federal agencies that 

have experience with the actions 

covered in a proposed categorical 

exclusion. The guidance acknowledges 

that the reliability of scientific 

information varies according to its 

source and the rigor with which it was 

developed, and that it is the 

responsibility of the agency to 

determine whether the information 

reflects accepted knowledge, accurate 

findings, and experience with the 

environmental effects relevant to the 

actions that would be included in the 

proposed categorical exclusion. 

The guidance addresses the concerns 

over timeliness and undue burdens by 

explaining that the amount of 

information required to substantiate a 

proposed new or revised categorical 

exclusion should be proportionate to the 

type of activities included in the 

proposed category of actions. Actions 

that potentially have little or no impact 

should not require extensive 

information or documentation. 

Determining the extent of substantiation 

and documentation is ultimately the 

responsibility of the agency and will 

vary depending on the nature of the 

proposed action and the effects 

associated with the action. The 

guidance encourages agencies to make 

use of agency Web sites to provide 

further clarity and transparency to their 

NEPA procedures. It also recommends 

using modern technology to maintain 

and facilitate the use of documentation 

in future evaluations and benchmarking. 

Extraordinary Circumstances 

Several commenters requested clearer 

and more detailed guidance on the 

application of extraordinary 

circumstances. Extraordinary 

circumstances are appropriately 

understood as those factors or 

circumstances that will help an agency 

identify the situations or environmental 

settings when an otherwise 

categorically-excludable action merits 

further analysis and documentation in 

an EA or an EIS. Specific comments 

noted that the determination that an 

extraordinary circumstance will require 

additional environmental review in an 

EA or an EIS should depend not solely 

on the existence of the extraordinary 

circumstance but rather on an analysis 

of its impacts. CEQ agrees with this 

perspective. For example, when an 

agency uses a protected resource, such 

as historic property or threatened and 

endangered species, as an extraordinary 

circumstance, the guidance clarifies that 

whether additional review and 

documentation of a proposed action’s 

potential environmental impacts in an 

EA or an EIS is required is based on the 

potential for significantly impacting that 

protected resource. However, CEQ 

recognizes that some agency NEPA 

procedures require additional analysis 

based solely on the existence of an 

extraordinary circumstance. In such 

cases, the agencies may define their 

extraordinary circumstances differently, 

so that a particular situation, such as the 

presence of a protected resource, is not 

considered an extraordinary 

circumstance per se, but a factor to 

consider when determining if there are 

extraordinary circumstances, such as a 

significant impact to that resource. This 


jdjones on DSK8KYBLC1PROD with RULES
75630 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

5See 40 CFR 1508.27 (defining ‘‘significantly’’ for 

NEPA purposes in terms of several context and 

intensity factors for agencies to consider). 

way of structuring NEPA procedures is 

also appropriate. What is important is 

that situations or circumstances that 

may warrant additional analysis and 

documentation in an EA or an EIS are 

fully considered before a categorical 

exclusion is used. 

The guidance was also revised to 

clarify how agencies can use the factors 

set out in the CEQ Regulations to 

determine significance. The Federal 

agencies are ultimately responsible for 

the determination of specific 

extraordinary circumstances for a 

category of actions, as well as the 

determination of whether to use the 

significance factors set out in the CEQ 

Regulations when establishing 

extraordinary circumstances.5 Agency 

determinations are informed by the 

public and CEQ during the development 

of the categorical exclusions. 

Documenting the Use of Categorical 

Exclusions 

Commenters were most concerned 

over the potential for delay and the 

creation of administrative burdens for 

projects and programs. The guidance 

makes it clear that the documentation 

prepared when categorically excluding 

an action should be as concise as 

possible to avoid unnecessary delays 

and administrative burdens for projects 

and programs. The guidance explains 

that each agency should determine the 

circumstances in which it is appropriate 

to prepare additional documentation. It 

also explains that for some activities 

with little risk of significant 

environmental effects, there may be no 

practical need for, or benefit from, 

preparing any documentation beyond 

the existing record supporting the 

underlying categorical exclusion and 

any administrative record for that 

activity. The guidance makes it clear 

that the extent of the documentation 

prepared is the responsibility of the 

agency and should be tailored to the 

type of action involved, the potential for 

extraordinary circumstances, and 

compliance requirements of other laws, 

regulations, and policies. 

Cumulative Impacts 

Some commenters were concerned 

that the guidance overlooked the 

importance of cumulative effects. As 

specifically set out in the CEQ 

Regulations and the final guidance, the 

consideration of the potential 

cumulative impacts of proposed actions 

is an important and integral aspect of 

the NEPA process. The guidance makes 

it clear that both individual and 

cumulative impacts must be considered 

when establishing categorical 

exclusions. With regard to the 

cumulative impacts of actions that an 

agency has categorically excluded, the 

guidance recommends that agencies 

consider the frequency with which the 

categorically-excluded actions are 

applied. For some types of categorical 

exclusions, it may also be appropriate 

for the agency to track and periodically 

assess use of the categorical exclusion to 

ensure that cumulative impacts do not 

rise to a level that would warrant further 

NEPA analysis and documentation. 

Monitoring 

Commenters voiced concerns that the 

guidance would create a new 

requirement for monitoring. The final 

guidance makes it clear that any Federal 

agency program charged with 

complying with NEPA should develop 

and maintain sufficient capacity to 

ensure the validity of NEPA reviews 

that predict that there will not be 

significant impacts. The amount of 

effort and the methods used for 

assessing environmental effects should 

be proportionate to the potential effects 

of the action that is the subject of a 

proposed categorical exclusion and 

should ensure that the use of categorical 

exclusions does not inadvertently result 

in significant impacts. 

As the guidance explains, agencies 

seeking to substantiate new or revised 

categorical exclusions can rely on the 

information gathered from monitoring 

actions the agency took in the past, as 

well as from monitoring the effects of 

impact demonstration projects. Relying 

solely on completed EAs and Findings 

of No Significant Impact (FONSIs) is not 

sufficient without information 

validating the FONSI which was 

projected in advance of implementation. 

The guidance makes it clear that 

FONSIs cannot be relied on as a basis 

for establishing a categorical exclusion 

unless the absence of significant 

environmental effects has been verified 

through credible monitoring of the 

implemented activity or other sources of 

corroborating information. The intensity 

of monitoring efforts for particular 

categories of actions or impact 

demonstration projects is appropriately 

left to the judgment of the agencies. 

Furthermore, the guidance explains that 

in some cases monitoring may not be 

appropriate and agencies can evaluate 

other information. 

Review of Existing Categorical 

Exclusions 

Several commenters advocated 

‘‘grandfathering’’ existing categorical 

exclusions. Two other commenters 

voiced support for the periodic review 

of agency categorical exclusions and 

specifically requested that the guidance 

call for rigorous review of existing 

categorical exclusions. Two commenters 

requested that the guidance explicitly 

provide for public participation during 

the review process. Several verbal 

comments focused on the recommended 

seven year review period and suggested 

alternative review periods ranging from 

two to ten years. Several commenters 

also requested that the guidance 

describe with greater clarity how the 

periodic review should be implemented. 

CEQ believes it is extremely 

important to review the categorical 

exclusions already established by the 

Federal agencies. The fact that an 

agency’s categorical exclusions were 

established years ago is all the more 

reason to review them to ensure that 

changes in technology, operations, 

agency missions, and the environment 

do not call into question the continued 

use of these categorical exclusions. The 

guidance also explains the value of such 

a review. Reviewing categorical 

exclusions can serve as the impetus for 

clarifying the actions covered by an 

existing categorical exclusion. It can 

also help agencies identify additional 

extraordinary circumstances and 

consider the appropriate documentation 

when using certain categorical 

exclusions. The guidance states that the 

review should focus on categorical 

exclusions that no longer reflect current 

environmental circumstances or an 

agency’s policies, procedures, programs, 

or mission. 

This guidance recommends that 

agencies develop a process and timeline 

to periodically review their categorical 

exclusions (and extraordinary 

circumstances) to ensure that their 

categorical exclusions remain current 

and appropriate, and that those reviews 

should be conducted at least every 

seven years. A seven-year cycle allows 

the agencies to regularly review 

categorical exclusions to avoid the use 

of categorical exclusions that are 

outdated and no longer appropriate. If 

the agency believes that a different 

timeframe is appropriate, the agency 

should articulate a sound basis for that 

conclusion, explaining how the 

alternate timeframe will still allow the 

agency to avoid the use of categorical 

exclusions that are outdated and no 

longer appropriate. As described in the 

guidance, agencies should use their Web 

sites to notify the public and CEQ about 

how and when their reviews of existing 

categorical exclusions will be 

conducted. CEQ will perform oversight 

of agencies’ reviews, beginning with 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75631 

6The Council on Environmental Quality (CEQ) 

Regulations for Implementing the Procedural 

Provisions of NEPA (CEQ Regulations), available on 

www.nepa.gov at ceq.hss.doe.gov/ceq_regulations/ 

regulations.html. This guidance applies only to 

categorical exclusions established by Federal 

agencies in accordance with section 1507.3 of the 

CEQ Regulations, 40 CFR 1507.3. It does not 

address categorical exclusions established by 

statute, as their use is governed by the terms of 

specific legislation and subsequent interpretation 

by the agencies charged with the implementation of 

that statute and NEPA requirements. CEQ 

encourages agencies to apply their extraordinary 

circumstances to categorical exclusions established 

by statute when the statute is silent as to the use 

and application of extraordinary circumstances. 

7This guidance is not a rule or regulation, and the 

recommendations it contains may not apply to a 

particular situation based upon the individual facts 

and circumstances. This guidance does not change 

or substitute for any law, regulation, or any other 

legally binding requirement and is not legally 

enforceable. The use of non-mandatory language 

such as ‘‘guidance,’’ ‘‘recommend,’’ ‘‘may,’’ ‘‘should,’’ 

and ‘‘can,’’ is intended to describe CEQ policies and 

recommendations. The use of mandatory 

terminology such as ‘‘must’’ and ‘‘required’’ is 

intended to describe controlling requirements 

under the terms of NEPA and the CEQ regulations, 

but this document does not establish legally 

binding requirements in and of itself. 

8The term ‘‘public’’ in this guidance refers to any 

individuals, groups, entities or agencies external to 

the Federal agency analyzing the proposed 

categorical exclusion or proposed activity. 

9 40 CFR 1507.1 (noting that CEQ Regulations 

intend to allow each agency flexibility in adapting 

its NEPA implementing procedures to requirements 

of other applicable laws). 

10 Id. at § 1508.4. 

11 Id. 12See id. at §§ 1500.4(p) (recommending use of 

categorical exclusions as a tool to reduce 

paperwork), 1500.5(k) (recommending categorical 

exclusions as a tool to reduce delay). 13 40 CFR 1508.4 (requiring Federal agencies to 

adopt procedures to ensure that categorical 

exclusions are not applied to proposed actions 

involving extraordinary circumstances that might 

have significant environmental effects). 14 40 CFR 1501.3(b). 

those agencies currently reassessing or 

experiencing difficulties with 

implementing their categorical 

exclusions, as well as with agencies 

facing challenges to their application of 

categorical exclusions. 

The Final Guidance 

The final guidance is provided here 

and is available on the National 

Environmental Policy Act Web site 

(http://www.nepa.gov) specifically at, 

ceq.hss.doe.gov/ceq_regulations/ 

guidance.html. For reasons stated in the 

preamble, above, CEQ issues the 

following guidance on establishing, 

applying, and revising categorical 

exclusions. 

MEMORANDUM FOR HEADS OF 

FEDERAL DEPARTMENTS AND 

AGENCIES 

FROM: NANCY H. SUTLEY 

Chair 

Council on Environmental Quality 

SUBJECT: Final Guidance for Federal 

Departments and Agencies on 

Establishing, Applying, and 

Revising Categorical Exclusions 

under the National Environmental 

Policy Act 

The Council on Environmental 

Quality (CEQ) is issuing this guidance 

for Federal departments and agencies on 

how to establish, apply, and revise 

categorical exclusions in accordance 

with section 102 of the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 4332, and the CEQ Regulations 

for Implementing the Procedural 

Provisions of NEPA (CEQ Regulations), 

40 CFR Parts 1500–1508.6 This guidance 

explains the requirements of NEPA and 

the CEQ Regulations, describes CEQ 

policies, and recommends procedures 

for agencies to use to ensure that their 

use of categorical exclusions is 

consistent with applicable law and 

regulations.7 The guidance is based on 

NEPA, the CEQ Regulations, legal 

precedent and agency NEPA experience 

and practice. It describes: 

• How to establish or revise a 

categorical exclusion; 

• How to use public involvement and 

documentation to help define and 

substantiate a proposed categorical 

exclusion; 

• How to apply an established 

categorical exclusion, and determine 

when to prepare documentation and 

involve the public; 8 and 

• How to conduct periodic reviews of 

categorical exclusions to assure their 

continued appropriate use and 

usefulness. 

This guidance is designed to afford 

Federal agencies flexibility in 

developing and implementing 

categorical exclusions, while ensuring 

that categorical exclusions are 

administered to further the purposes of 

NEPA and the CEQ Regulations.9

I. Introduction 

The CEQ Regulations provide basic 

requirements for establishing and using 

categorical exclusions. Section 1508.4 of 

the CEQ Regulations defines a 

‘‘categorical exclusion’’ as 

a category of actions which do not 

individually or cumulatively have a 

significant effect on the human environment 

and which have been found to have no such 

effect in procedures adopted by a Federal 

agency in implementation of these 

regulations (§ 1507.3) and for which, 

therefore, neither an environmental 

assessment nor an environmental impact 

statement is required.10

Categories of actions for which 

exclusions are established can be 

limited by their terms. Furthermore, the 

application of a categorical exclusion 

can be limited by ‘‘extraordinary 

circumstances.’’ Extraordinary 

circumstances are factors or 

circumstances in which a normally 

excluded action may have a significant 

environmental effect that then requires 

further analysis in an environmental 

assessment (EA) or an environmental 

impact statement (EIS).11

Categorical exclusions are not 

exemptions or waivers of NEPA review; 

they are simply one type of NEPA 

review. To establish a categorical 

exclusion, agencies determine whether a 

proposed activity is one that, on the 

basis of past experience, normally does 

not require further environmental 

review. Once established, categorical 

exclusions provide an efficient tool to 

complete the NEPA environmental 

review process for proposals that 

normally do not require more resourceintensive EAs or EISs. The use of 

categorical exclusions can reduce 

paperwork and delay, so that EAs or 

EISs are targeted toward proposed 

actions that truly have the potential to 

cause significant environmental 

effects.12

When determining whether to use a 

categorical exclusion for a proposed 

activity, a Federal agency must carefully 

review the description of the proposed 

action to ensure that it fits within the 

category of actions described in the 

categorical exclusion. Next, the agency 

must consider the specific 

circumstances associated with the 

proposed activity, to rule out any 

extraordinary circumstances that might 

give rise to significant environmental 

effects requiring further analysis and 

documentation in an EA or an EIS.13 In 

other words, when evaluating whether 

to apply a categorical exclusion to a 

proposed activity, an agency must 

consider the specific circumstances 

associated with the activity and may not 

end its review based solely on the 

determination that the activity fits 

within the description of the categorical 

exclusion; rather, the agency must also 

consider whether there are 

extraordinary circumstances that would 

warrant further NEPA review. Even if a 

proposed activity fits within the 

definition of a categorical exclusion and 

does not raise extraordinary 

circumstances, the CEQ Regulations 

make clear that an agency can, at its 

discretion, decide ‘‘to prepare an 

environmental assessment * * * in 

order to assist agency planning and 

decisionmaking.’’ 14

Since Federal agencies began using 

categorical exclusions in the late 1970s, 


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75632 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

15See CEQ reports to Congress on the status and 

progress of NEPA reviews for Recovery Act funded 

projects and activities, available on http:// 

www.nepa.gov at ceq.hss.doe.gov/ceq_reports/ 

recovery_act_reports.html. 

16When legislative or administrative action 

creates a new agency or restructures an existing 

agency, the agency should determine if its 

decisionmaking processes have changed and ensure 

that its NEPA implementing procedures align the 

NEPA review and other environmental planning 

processes with agency decisionmaking. 

17 40 CFR 1502.4(d), 1502.20, 1508.28. 

18Council on Environmental Quality, ‘‘Guidance 

Regarding NEPA Regulations,’’ 48 FR 34,263, 

34,265, Jul. 28, 1983, available on http:// 

www.nepa.gov at ceq.hss.doe.gov/nepa/regs/1983/ 

1983guid.htm. 

19 Id. 

the number and scope of categoricallyexcluded activities have expanded 

significantly. Today, categorical 

exclusions are the most frequently 

employed method of complying with 

NEPA, underscoring the need for this 

guidance on the promulgation and use 

of categorical exclusions.15 Appropriate 

reliance on categorical exclusions 

provides a reasonable, proportionate, 

and effective analysis for many 

proposed actions, helping agencies 

reduce paperwork and delay. If used 

inappropriately, categorical exclusions 

can thwart NEPA’s environmental 

stewardship goals, by compromising the 

quality and transparency of agency 

environmental review and 

decisionmaking, as well as 

compromising the opportunity for 

meaningful public participation and 

review. 

II. Establishing and Revising 

Categorical Exclusions 

A. Conditions Warranting New or 

Revised Categorical Exclusions 

Federal agencies may establish a new 

or revised categorical exclusion in a 

variety of circumstances. For example, 

an agency may determine that a class of 

actions—such as payroll processing, 

data collection, conducting surveys, or 

installing an electronic security system 

in a facility—can be categorically 

excluded because it is not expected to 

have significant individual or 

cumulative environmental effects. As 

discussed further in Section III.A.1, 

below, agencies may also identify 

potential new categorical exclusions 

after the agencies have performed NEPA 

reviews of a class of proposed actions 

and found that, when implemented, the 

actions resulted in no significant 

environmental impacts. Other categories 

of actions may become appropriate for 

categorical exclusions as a result of 

mission changes. When agencies acquire 

new responsibilities through legislation 

or administrative restructuring, they 

should propose new categorical 

exclusions after they, or other agencies, 

gain sufficient experience with the new 

activities to make a reasoned 

determination that any resulting 

environmental impacts are not 

significant.16

Agencies sometimes employ ‘‘tiering’’ 

to incorporate findings from NEPA 

environmental reviews that address 

broad programs or issues into reviews 

that subsequently deal with more 

specific and focused proposed actions.17

Agencies may rely on tiering to make 

predicate findings about environmental 

impacts when establishing a categorical 

exclusion. To the extent that mitigation 

commitments developed during the 

broader review become an integral part 

of the basis for subsequently excluding 

a proposed category of actions, care 

must be taken to ensure that those 

commitments are clearly presented as 

required design elements in the 

description of the category of actions 

being considered for a categorical 

exclusion. 

If actions in a proposed categorical 

exclusion are found to have potentially 

significant environmental effects, an 

agency can abandon the proposed 

categorical exclusion, or revise it to 

eliminate the potential for significant 

impacts. This can be done by: (1) 

Limiting or removing activities included 

in the categorical exclusion; (2) placing 

additional constraints on the categorical 

exclusion’s applicability; or (3) revising 

or identifying additional applicable 

extraordinary circumstances. When an 

agency revises an extraordinary 

circumstance, it should make sure that 

the revised version clearly identifies the 

circumstances when further 

environmental evaluation in an EA or 

an EIS is warranted. 

B. The Text of the Categorical Exclusion 

In prior guidance, CEQ has generally 

addressed the crafting of categorical 

exclusions, encouraging agencies to 

‘‘consider broadly defined criteria which 

characterize types of actions that, based 

on the agency’s experience, do not cause 

significant environmental effects,’’ and 

to ‘‘offer several examples of activities 

frequently performed by that agency’s 

personnel which would normally fall in 

these categories.’’ 18 CEQ’s prior 

guidance also urges agencies to consider 

whether the cumulative effects of 

multiple small actions ‘‘would cause 

sufficient environmental impact to take 

the actions out of the categoricallyexcluded class.’’ 19 This guidance 

expands on CEQ’s earlier guidance, by 

advising agencies that the text of a 

proposed new or revised categorical 

exclusion should clearly define the 

eligible category of actions, as well as 

any physical, temporal, or 

environmental factors that would 

constrain its use. 

Some activities may be variable in 

their environmental effects, such that 

they can only be categorically excluded 

in certain regions, at certain times of the 

year, or within a certain frequency. For 

example, because the status and 

sensitivity of environmental resources 

varies across the nation or by time of 

year (e.g., in accordance with a 

protected species’ breeding season), it 

may be appropriate to limit the 

geographic applicability of a categorical 

exclusion to a specific region or 

environmental setting. Similarly, it may 

be appropriate to limit the frequency 

with which a categorical exclusion is 

used in a particular area. Categorical 

exclusions for activities with variable 

impacts must be carefully described to 

limit their application to circumstances 

where the activity has been shown not 

to have significant individual or 

cumulative environmental effects. 

Those limits may be spatial (restricting 

the extent of the proposed action by 

distance or area); temporal (restricting 

the proposed action during certain 

seasons or nesting periods in a 

particular setting); or numeric (limiting 

the number of proposed actions that can 

be categorically excluded in a given area 

or timeframe). Federal agencies that 

identify these constraints can better 

ensure that a categorical exclusion is 

neither too broadly nor too narrowly 

defined. 

When developing a new or revised 

categorical exclusion, Federal agencies 

must be sure the proposed category 

captures the entire proposed action. 

Categorical exclusions should not be 

established or used for a segment or an 

interdependent part of a larger proposed 

action. The actions included in the 

category of actions described in the 

categorical exclusion must be standalone actions that have independent 

utility. Agencies are also encouraged to 

provide representative examples of the 

types of activities covered in the text of 

the categorical exclusion, especially for 

broad categorical exclusions. These 

examples will provide further clarity 

and transparency regarding the types of 

actions covered by the categorical 

exclusion. 

C. Extraordinary Circumstances 

Extraordinary circumstances are 

appropriately understood as those 

factors or circumstances that help a 

Federal agency identify situations or 

environmental settings that may require 


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20 Id. at § 1508.27(b). 

21See id. at §§ 1508.7, 1508.8, 1508.27. 

22Agencies should still consider the 

environmental effects of actions that are taken on 

a large scale. Agency-wide procurement and 

personnel actions could have cumulative impacts. 

For example, purchasing paper with higher 

recycled content uses less natural resources and 

will have lesser environmental impacts. See 

‘‘Federal Leadership in Environmental, Energy, and 

Economic Performance,’’ E.O. No. 13,514, 74 FR 

52,117, Oct. 8, 2009. 

23Agencies should be mindful of their obligations 

under the Information Quality Act to ensure the 

quality, objectivity, utility, and integrity of the 

information they use or disseminate as the basis of 

an agency decision to establish a categorical 

exclusion. See Information Quality Act, Pub. L. No. 

106–554, section 515 (2000), 114 Stat. 2763, 2763A– 

153 (codified at 44 U.S.C. 3516 (2001)); see also 

‘‘Guidelines for Ensuring and Maximizing the 

Quality, Objectivity, Utility, and Integrity of 

Information Disseminated by Federal Agencies, 

Republication,’’ 60 FR 8452, Feb. 22, 2002, available 

at http://www.whitehouse.gov/omb/inforeg/ 

infopoltech.html. Additional laws and regulations 

that establish obligations that apply or may apply 

to the processes of establishing and applying 

categorical exclusions (such as the Federal Records 

Act) are beyond the scope of this guidance. 

24An EMS provides a systematic framework for 

a Federal agency to monitor and continually 

improve its environmental performance through 

audits, evaluation of legal and other requirements, 

and management reviews. The potential for EMS to 

support NEPA work is further described in CEQ’s 

Continued 

an otherwise categorically-excludable 

action to be further analyzed in an EA 

or an EIS. Often these factors are similar 

to those used to evaluate intensity for 

purposes of determining significance 

pursuant to section 1508.27(b) of the 

CEQ Regulations.20 For example, several 

agencies list as extraordinary 

circumstances the potential effects on 

protected species or habitat, or on 

historic properties listed or eligible for 

listing in the National Register of 

Historic Places. 

When proposing new or revised 

categorical exclusions, Federal agencies 

should consider the extraordinary 

circumstances described in their NEPA 

procedures to ensure that they 

adequately account for those situations 

and settings in which a proposed 

categorical exclusion should not be 

applied. An extraordinary circumstance 

requires the agency to determine how to 

proceed with the NEPA review. For 

example, the presence of a factor, such 

as a threatened or endangered species or 

a historic resource, could be an 

extraordinary circumstance, which, 

depending on the structure of the 

agency’s NEPA implementing 

procedures, could either cause the 

agency to prepare an EA or an EIS, or 

cause the agency to consider whether 

the proposed action’s impacts on that 

factor require additional analysis in an 

EA or an EIS. In other situations, the 

extraordinary circumstance could be 

defined to include both the presence of 

the factor and the impact on that factor. 

Either way, agency NEPA implementing 

procedures should clearly describe the 

manner in which an agency applies 

extraordinary circumstances and the 

circumstances under which additional 

analysis in an EA or an EIS is 

warranted. 

Agencies should review their existing 

extraordinary circumstances 

concurrently with the review of their 

categorical exclusions. If an agency’s 

existing extraordinary circumstances do 

not provide sufficient parameters to 

limit a proposed new or revised 

categorical exclusion to actions that do 

not have the potential for significant 

environmental effects, the agency 

should identify and propose additional 

extraordinary circumstances or revise 

those that will apply to the proposed 

categorical exclusion. If extensive 

extraordinary circumstances are needed 

to limit a proposed categorical 

exclusion, the agency should also 

consider whether the proposed 

categorical exclusion itself is 

appropriate. Any new or revised 

extraordinary circumstances must be 

issued together with the new or revised 

categorical exclusion in draft form and 

then in final form according to the 

procedures described in Section IV. 

III. Substantiating a New or Revised 

Categorical Exclusion 

Substantiating a new or revised 

categorical exclusion is basic to good 

decisionmaking. It serves as the 

agency’s own administrative record of 

the underlying reasoning for the 

categorical exclusion. A key issue 

confronting Federal agencies is how to 

substantiate a determination that a 

proposed new or revised categorical 

exclusion describes a category of actions 

that do not individually or cumulatively 

have a significant effect on the human 

environment.21 Provided below are 

methods agencies can use to gather and 

evaluate information to substantiate 

proposed new or revised categorical 

exclusions. 

A. Gathering Information To 

Substantiate a Categorical Exclusion 

The amount of information required 

to substantiate a categorical exclusion 

depends on the type of activities 

included in the proposed category of 

actions. Actions that are reasonably 

expected to have little impact (for 

example, conducting surveys or 

purchasing small amounts of office 

supplies consistent with applicable 

acquisition and environmental 

standards) should not require extensive 

supporting information.22 For actions 

that do not obviously lack significant 

environmental effects, agencies must 

gather sufficient information to support 

establishing a new or revised categorical 

exclusion. An agency can substantiate a 

categorical exclusion using the sources 

of information described below, either 

alone or in combination.23

1. Previously Implemented Actions 

An agency’s assessment of the 

environmental effects of previously 

implemented or ongoing actions is an 

important source of information to 

substantiate a categorical exclusion. 

Such assessment allows the agency’s 

experience with implementation and 

operating procedures to be taken into 

account in developing the proposed 

categorical exclusion. 

Agencies can obtain useful 

substantiating information by 

monitoring and/or otherwise evaluating 

the effects of implemented actions that 

were analyzed in EAs that consistently 

supported Findings of No Significant 

Impact. If the evaluation of the 

implemented action validates the 

environmental effects (or lack thereof) 

predicted in the EA, this provides strong 

support for a proposed categorical 

exclusion. Care must be taken to ensure 

that any mitigation measures developed 

during the EA process are an integral 

component of the actions considered for 

inclusion in a proposed categorical 

exclusion. 

Implemented actions analyzed in an 

EIS can also be a useful source of 

substantiating information if the 

implemented action has independent 

utility to the agency, separate and apart 

from the broader action analyzed in the 

EIS. The EIS must specifically address 

the environmental effects of the 

independent proposed action and 

determine that those effects are not 

significant. For example, when a 

discrete, independent action is analyzed 

in an EIS as part of a broad management 

action, an evaluation of the actual 

effects of that discrete action may 

support a proposed categorical 

exclusion for the discrete action. As 

with actions previously analyzed in 

EAs, predicted effects (or lack thereof) 

should be validated through monitoring 

or other corroborating evidence. 

Agencies can also identify or 

substantiate new categorical exclusions 

and extraordinary circumstances by 

using auditing and implementation data 

gathered in accordance with an 

Environmental Management System or 

other systems that track environmental 

performance and the effects of particular 

actions taken to attain that 

performance.24


jdjones on DSK8KYBLC1PROD with RULES
75634 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

Guidebook, ‘‘Aligning National Environmental 

Policy Act Processes with Environmental 

Management Systems’’ (2007), available on http:// 

www.nepa.gov at ceq.hss.doe.gov/publications/ 

nepa_and_ems.html. 25See 40 CFR 1500.1(b), 1502.24. 

Agencies should also consider 

appropriate monitoring or other 

evaluation of the environmental effects 

of their categorically-excluded actions, 

to inform periodic reviews of existing 

categorical exclusions, as discussed in 

Section VI, below. 

2. Impact Demonstration Projects 

When Federal agencies lack 

experience with a particular category of 

actions that is being considered for a 

proposed categorical exclusion, they 

may undertake impact demonstration 

projects to assess the environmental 

effects of those actions. As part of a 

demonstration project, the Federal 

agency should monitor the actual 

environmental effects of the proposed 

action during and after implementation. 

The NEPA documentation prepared for 

impact demonstration projects should 

explain how the monitoring and 

analysis results will be used to evaluate 

the merits of a proposed categorical 

exclusion. When designing impact 

demonstration projects, an agency must 

ensure that the action being evaluated 

accurately represents the scope, the 

operational context, and the 

environmental context of the entire 

category of actions that will be 

described in the proposed categorical 

exclusion. For example, if the proposed 

categorical exclusion would be used in 

regions or areas of the country with 

different environmental settings, a series 

of impact demonstration projects may 

be needed in those areas where the 

categorical exclusion would be used. 

3. Information From Professional Staff, 

Expert Opinions, and Scientific 

Analyses 

A Federal agency may rely on the 

expertise, experience, and judgment of 

its professional staff as well as outside 

experts to assess the potential 

environmental effects of applying 

proposed categorical exclusions, 

provided that the experts have 

knowledge, training, and experience 

relevant to the implementation and 

environmental effects of the actions 

described in the proposed categorical 

exclusion. The administrative record for 

the proposed categorical exclusion 

should document the experts’ 

credentials (e.g., education, training, 

certifications, years of related 

experience) and describe how the 

experts arrived at their conclusions. 

Scientific analyses are another good 

source of information to substantiate a 

new or revised categorical exclusion. 

Because the reliability of scientific 

information varies according to its 

source and the rigor with which it was 

developed, the Federal agency remains 

responsible for determining whether the 

information reflects accepted 

knowledge, accurate findings, and 

experience relevant to the 

environmental effects of the actions that 

would be included in the proposed 

categorical exclusion. Peer-reviewed 

findings may be especially useful to 

support an agency’s scientific analysis, 

but agencies may also consult 

professional opinions, reports, and 

research findings that have not been 

formally peer-reviewed. Scientific 

information that has not been externally 

peer-reviewed may require additional 

scrutiny and evaluation by the agency. 

In all cases, findings must be based on 

high-quality, accurate technical and 

scientific information.25

4. Benchmarking Other Agencies’ 

Experiences 

A Federal agency cannot rely on 

another agency’s categorical exclusion 

to support a decision not to prepare an 

EA or an EIS for its own actions. An 

agency may, however, substantiate a 

categorical exclusion of its own based 

on another agency’s experience with a 

comparable categorical exclusion and 

the administrative record developed 

when the other agency’s categorical 

exclusion was established. Federal 

agencies can also substantiate 

categorical exclusions by benchmarking, 

or drawing support, from private and 

public entities that have experience 

with the actions covered in a proposed 

categorical exclusion, such as State and 

local agencies, Tribes, academic and 

professional institutions, and other 

Federal agencies. 

When determining whether it is 

appropriate to rely on another entity’s 

experience, an agency must demonstrate 

that the benchmarked actions are 

comparable to the actions in a proposed 

categorical exclusion. The agency can 

demonstrate this based on: (1) 

Characteristics of the actions; (2) 

methods of implementing the actions; 

(3) frequency of the actions; (4) 

applicable standard operating 

procedures or implementing guidance 

(including extraordinary 

circumstances); and (5) timing and 

context, including the environmental 

settings in which the actions take place. 

B. Evaluating the Information 

Supporting Categorical Exclusions 

After gathering substantiating 

information and determining that the 

category of actions in the proposed 

categorical exclusion does not normally 

result in individually or cumulatively 

significant environmental effects, a 

Federal agency should develop findings 

that demonstrate how it made its 

determination. These findings should 

account for similarities and differences 

between the proposed categorical 

exclusion and the substantiating 

information. The findings should 

describe the method and criteria the 

agency used to assess the environmental 

effects of the proposed categorical 

exclusion. These findings, and the 

relevant substantiating information, 

should be maintained in an 

administrative record that will support: 

Benchmarking by other agencies (as 

discussed in Section III.A.4, above); 

applying the categorical exclusions (as 

discussed in Section V.A, below); and 

periodically reviewing the continued 

viability of the categorical exclusion (as 

discussed in Section VI, below). These 

findings should also be made available 

to the public, at least in preliminary 

form, as part of the process of seeking 

public input on the establishment of 

new or revised categorical exclusions, 

though the final findings may be revised 

based on new information received from 

the public and other sources. 

IV. Procedures for Establishing a New 

or Revised Categorical Exclusion 

Pursuant to section 1507.3(a) of the 

CEQ Regulations, Federal agencies are 

required to consult with the public and 

with CEQ whenever they amend their 

NEPA procedures, including when they 

establish new or revised categorical 

exclusions. An agency can only adopt 

new or revised NEPA implementing 

procedures after the public has had 

notice and an opportunity to comment, 

and after CEQ has issued a 

determination that the procedures are in 

conformity with NEPA and the CEQ 

regulations. Accordingly, an agency’s 

process for establishing a new or revised 

categorical exclusion should include the 

following steps: 

• Draft the proposed categorical 

exclusion based on the agency’s 

experience and substantiating 

information; 

• Consult with CEQ on the proposed 

categorical exclusion; 

• Consult with other Federal agencies 

that conduct similar activities to 

coordinate with their current 

procedures, especially for programs 


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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75635 

26 40 CFR 1507.3(a) (requiring agencies with 

similar programs to consult with one another and 

with CEQ to coordinate their procedures). 

27 Id. 

28National Environmental Policy Act of 1969, 

§ 2 et seq., 42 U.S.C. 4321 et seq.; see, e.g., 40 CFR 

1506.6(a) (requiring agencies to make diligent 

efforts to involve the public in preparing and 

implementing their NEPA procedures); 40 CFR 

1507.3(a) (requiring each agency to consult with 

CEQ while developing its procedures and before 

publishing them in the Federal Register for 

comment; providing that an agency’s NEPA 

procedures shall be adopted only after an 

opportunity for public review; and providing that, 

once in effect, the procedures must be made readily 

available to the public). 

29See 40 CFR 1507.3 (outlining procedural 

requirements for agencies to establish and revise 

their NEPA implementing regulations), 1506.6(a) 

(requiring agencies to involve the public in 

rulemaking, including public notice and an 

opportunity to comment). 

30NEPA and the CEQ Regulations do not require 

agency NEPA implementing procedures, of which 

categorical exclusions are a key component, to be 

promulgated as regulations through rulemaking. 

Agencies should ensure they comply with all 

appropriate agency requirements for issuing and 

revising their NEPA implementing procedures. 

31This step is particularly beneficial when the 

agency determines that the public will view a 

potential impact as significant, as it provides the 

agency the opportunity to explain why it believes 

that impact to be presumptively insignificant. 

Whenever practicable, the agency should include a 

link to a Web site containing all the supporting 

information, evaluations, and findings. Ready 

access to all supporting information will likely 

minimize the need for members of the public to 

depend on Freedom of Information Act requests 

and enhance the NEPA goals of outreach and 

disclosure. Agencies should consider using their 

regulatory development tools to assist in 

maintaining access to supporting information, such 

as establishing an online docket using http:// 

www.regulations.gov. 

requesting similar information from 

members of the public (e.g., applicants); 

• Publish a notice of the proposed 

categorical exclusion in the Federal 

Register for public review and 

comment; 

• Consider public comments; 

• Consult with CEQ on the public 

comments received and the proposed 

final categorical exclusion to obtain 

CEQ’s written determination of 

conformity with NEPA and the CEQ 

Regulations; 

• Publish the final categorical 

exclusion in the Federal Register; 

• File the categorical exclusion with 

CEQ; and 

• Make the categorical exclusion 

readily available to the public through 

the agency’s Web site and/or other 

means. 

A. Consultation With CEQ 

The CEQ Regulations require agencies 

to consult with CEQ prior to publishing 

their proposed NEPA procedures in the 

Federal Register for public comment. 

Agencies are encouraged to involve CEQ 

as early as possible in the process and 

to enlist CEQ’s expertise and assistance 

with interagency coordination to make 

the process as efficient as possible.26

Following the public comment 

period, the Federal agency must 

consider the comments received and 

consult again with CEQ to discuss 

substantive comments and how they 

will be addressed. CEQ shall complete 

its review within thirty (30) days of 

receiving the final text of the agency’s 

proposed categorical exclusion. For 

consultation to successfully conclude, 

CEQ must provide the agency with a 

written statement that the categorical 

exclusion was developed in conformity 

with NEPA and the CEQ Regulations. 

Finally, when the Federal agency 

publishes the final version of the 

categorical exclusion in the Federal 

Register and on its established agency 

Web site, the agency should notify CEQ 

of such publication so as to satisfy the 

requirements to file the final categorical 

exclusion with CEQ and to make the 

final categorical exclusion readily 

available to the public.27

B. Seeking Public Involvement When 

Establishing or Revising a Categorical 

Exclusion 

Engaging the public in the 

environmental aspects of Federal 

decisionmaking is a key aspect of NEPA 

and the CEQ Regulations.28 At a 

minimum, the CEQ Regulations require 

Federal agencies to make any proposed 

amendments to their categorical 

exclusions available for public review 

and comment in the Federal Register,29

regardless of whether the categorical 

exclusions are promulgated as 

regulations through rulemaking, or 

issued as departmental directives or 

orders.30 To maximize the value of 

comments from interested parties, the 

agency’s Federal Register notice should: 

• Describe the proposed activities 

covered by the categorical exclusion and 

provide the proposed text of the 

categorical exclusion; 

• Summarize the information in the 

agency’s administrative record that was 

used to substantiate the categorical 

exclusion, including an evaluation of 

the information and related findings; 31

• Define all applicable terms; 

• Describe the extraordinary 

circumstances that may limit the use of 

the categorical exclusion; and 

• Describe the available means for 

submitting questions and comments 

about the proposed categorical 

exclusion (for example, e-mail 

addresses, mailing addresses, Web site 

addresses, and names and phone 

numbers of agency points of contact). 

When establishing or revising a 

categorical exclusion, agencies should 

also pursue additional opportunities for 

public involvement beyond publication 

in the Federal Register in cases where 

there is likely to be significant public 

interest and additional outreach would 

facilitate public input. The extent of 

public involvement can be tailored to 

the nature of the proposed categorical 

exclusion and the degree of expected 

public interest. 

CEQ encourages Federal agencies to 

engage interested parties such as public 

interest groups, Federal NEPA contacts 

at other agencies, Tribal governments 

and agencies, and State and local 

governments and agencies. The purpose 

of this engagement is to share relevant 

data, information, and concerns. 

Agencies can involve the public by 

using the methods noted in section 

1506.6 of the CEQ Regulations, as well 

as other public involvement techniques 

such as focus groups, e-mail exchanges, 

conference calls, and Web-based 

forums. 

CEQ also strongly encourages Federal 

agencies to post updates on their official 

Web sites whenever they issue Federal 

Register notices for new or revised 

categorical exclusions. An agency Web 

site may serve as the primary location 

where the public learns about agency 

NEPA implementing procedures and 

their use, and obtains efficient access to 

updates and supporting information. 

Therefore, agencies should ensure that 

their NEPA implementing procedures 

and any final revisions or amendments 

are easily accessed through the agency’s 

official Web site including when an 

agency is adding, deleting, or revising 

the categorical exclusions and/or the 

extraordinary circumstances in its 

NEPA implementing procedures. 

V. Applying an Established Categorical 

Exclusion 

When applying a categorical 

exclusion to a proposed action, Federal 

agencies face two key decisions: 

(1) Whether to prepare documentation 

supporting their determination to use a 

categorical exclusion for a proposed 

action; and (2) whether public 

engagement and disclosure may be 

useful to inform determinations about 

using categorical exclusions. 

A. When To Document Categorical 

Exclusion Determinations 

In prior guidance, CEQ has ‘‘strongly 

discourage[d] procedures that would 

require the preparation of additional 

paperwork to document that an activity 

has been categorically excluded,’’ based 

on an expectation that ‘‘sufficient 

information will usually be available 


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75636 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

32 ‘‘Guidance Regarding NEPA Regulations,’’ 

48 FR 34,263, 34,265, Jul. 28, 1983, 

available on http://www.nepa.gov_at 

ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm. 33 Id. 34See, e.g., California v. Norton, 311 F.3d 1162, 

1175–78 (9th Cir. 2002). 35The agency determination that an action is 

categorically excluded may itself be challenged 

under the Administrative Procedure Act, 5 U.S.C. 

501 et seq. 

36Many agencies publish two lists of categorical 

exclusions: (1) Those which typically do not raise 

public concerns due to the low risk of potential 

environmental effects, and (2) those more likely to 

raise public concerns. 

37See Department of Energy, Categorical 

Exclusion Determinations, available at 

http://www.gc.energy.gov/NEPA/ 

categorical_exclusion_determinations.htm. 

38 40 CFR 1507.3. 

during the course of normal project 

development’’ to determine whether an 

EIS or an EA is needed.32 Moreover, 

‘‘the agency’s administrative record (for 

the proposed action) will clearly 

document the basis for its decision.’’ 33

This guidance modifies our prior 

guidance to the extent that it recognizes 

that each Federal agency should 

decide—and update its NEPA 

implementing procedures and guidance 

to indicate—whether any of its 

categorical exclusions warrant 

preparation of additional 

documentation. 

Some activities, such as routine 

personnel actions or purchases of small 

amounts of supplies, may carry little 

risk of significant environmental effects, 

such that there is no practical need for, 

or benefit from, preparing additional 

documentation when applying a 

categorical exclusion to those activities. 

For those activities, the administrative 

record for establishing the categorical 

exclusion and any normal project 

development documentation may be 

considered sufficient. 

For other activities, such as decisions 

to allow various stages of resource 

development after a programmatic 

environmental review, documentation 

may be appropriate to demonstrate that 

the proposed action comports with any 

limitations identified in prior NEPA 

analysis and that there are no 

potentially significant impacts expected 

as a result of extraordinary 

circumstances. In such cases, the 

documentation should address 

proposal-specific factors and show 

consideration of extraordinary 

circumstances with regard to the 

potential for localized impacts. It is up 

to agencies to decide whether to prepare 

separate NEPA documentation in such 

cases or to include this documentation 

in other project-specific documents that 

the agency is preparing. 

In some cases, courts have required 

documentation to demonstrate that a 

Federal agency has considered the 

environmental effects associated with 

extraordinary circumstances.34

Documenting the application of a 

categorical exclusion provides the 

agency the opportunity to demonstrate 

why its decision to use the categorical 

exclusion is entitled to deference.35

Documentation may be necessary to 

comply with the requirements of other 

laws, regulations, and policies, such as 

the Endangered Species Act or the 

National Historic Preservation Act. 

When that is the case, all resource 

analyses and the results of any 

consultations or coordination should be 

incorporated by reference in the 

administrative record developed for the 

proposed action. Moreover, the nature 

and severity of the effect on resources 

subject to additional laws or regulations 

may be a reason for limiting the use of 

a categorical exclusion and therefore 

should, where appropriate, also be 

addressed in documentation showing 

how potential extraordinary 

circumstances were considered and 

addressed in the decision to use the 

categorical exclusion. 

For those categorical exclusions for 

which an agency determines that 

documentation is appropriate, the 

documentation should cite the 

categorical exclusion being used and 

show that the agency determined that: 

(1) The proposed action fits within the 

category of actions described in the 

categorical exclusion; and (2) there are 

no extraordinary circumstances that 

would preclude the proposed action 

from being categorically excluded. The 

extent of the documentation should be 

tailored to the type of action involved, 

the potential for extraordinary 

circumstances and environmental 

effects, and any applicable requirements 

of other laws, regulations, and policies. 

If lengthy documentation is needed to 

address these aspects, an agency should 

consider whether it is appropriate to 

apply the categorical exclusion in that 

particular situation. In all 

circumstances, any documentation 

prepared for a categorical exclusion 

should be concise. 

B. When To Seek Public Engagement 

and Disclosure 

Most Federal agencies do not 

routinely notify the public when they 

use a categorical exclusion to meet their 

NEPA responsibilities. There are some 

circumstances, however, where the 

public may be able to provide an agency 

with valuable information, such as 

whether a proposal involves 

extraordinary circumstances or 

potentially significant cumulative 

impacts that can help the agency decide 

whether to apply a categorical 

exclusion. CEQ therefore encourages 

Federal agencies to determine—and 

specify in their NEPA implementing 

procedures—those circumstances in 

which the public should be engaged or 

notified before a categorical exclusion is 

used. 

Agencies should utilize information 

technology to provide the public with 

access to information about the agency’s 

NEPA compliance. CEQ strongly 

recommends that agencies post key 

information about their NEPA 

procedures and implementation on a 

publicly available Web site. The Web 

site should include: 

• The text of the categorical 

exclusions and applicable extraordinary 

circumstances; 

• A synopsis of the administrative 

record supporting the establishment of 

each categorical exclusion with 

information on how the public can 

access the entire administrative record; 

• Those categorical exclusions which 

the agency determines are and are not 

likely to be of interest to the public; 36

and 

• Information on agencies’ use of 

categorical exclusions for proposed 

actions, particularly in those situations 

where there is a high level of public 

interest in a proposed action. 

Where an agency has documented a 

categorical exclusion, it should also 

consider posting that documentation 

online. For example, in 2009, the 

Department of Energy adopted a policy 

to post documented categorical 

exclusion determinations online.37 By 

adopting a similar policy, other agencies 

can significantly increase the quality 

and transparency of their 

decisionmaking when using categorical 

exclusions. 

VI. Periodic Review of Established 

Categorical Exclusions 

The CEQ Regulations direct Federal 

agencies to ‘‘continue to review their 

policies and procedures and in 

consultation with [CEQ] to revise them 

as necessary to ensure full compliance 

with the purposes and provisions of 

[NEPA].’’ 38 Many agencies have 

categorical exclusions that were 

established many years ago. Some 

Federal agencies have internal 

procedures for identifying and revising 

categorical exclusions that no longer 

reflect current environmental 

circumstances, or current agency 

policies, procedures, programs, or 

mission. Where an agency’s categorical 

exclusions have not been regularly 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 75637 

39Council on Environmental Quality, Report 

Regarding the Mineral Management Service’s 

National Environmental Policy Act Policies, 

Practices, and Procedures as They Relate to Outer 

Continental Shelf Oil and Gas Exploration, 

available at ceq.hss.doe.gov/current_developments/ 

docs/CEQ_Report_Reviewing_MMS_OCS_

NEPA_Implementation.pdf (Aug. 2010) at 18–20 

(explaining that MMS NEPA review for the 

Macondo Exploratory Well relied on categorical 

exclusions established in the 1980s, before 

deepwater drilling became widespread). 

40 40 CFR 1507.2. 41Council on Environmental Quality, The NEPA 

Task Force Report to the Council on Environmental 

Quality—Modernizing NEPA Implementation, p. 63 

(Sept. 2003), available on http://www.nepa.gov at 

ceq.hss.doe.gov/ntf/report/index.html. 

reviewed, they should be reviewed by 

the agency as soon as possible. 

There are several reasons why Federal 

agencies should periodically review 

their categorical exclusions. For 

example, a Federal agency may find that 

an existing categorical exclusion is not 

being used because the category of 

actions is too narrowly defined. In such 

cases, the agency should consider 

amending its NEPA implementing 

procedures to expand the description of 

the category of actions included in the 

categorical exclusion. An agency could 

also find that an existing categorical 

exclusion includes actions that raise the 

potential for significant environmental 

effects with some regularity. In those 

cases, the agency should determine 

whether to delete the categorical 

exclusion, or revise it to either limit the 

category of actions or expand the 

extraordinary circumstances that limit 

when the categorical exclusion can be 

used. Periodic review can also help 

agencies identify additional factors that 

should be included in their 

extraordinary circumstances and 

consider whether certain categorical 

exclusions should be documented. 

Agencies should exercise sound 

judgment about the appropriateness of 

categorically excluding activities in 

light of evolving or changing conditions 

that might present new or different 

environmental impacts or risks. The 

assumptions underlying the nature and 

impact of activities encompassed by a 

categorical exclusion may have changed 

over time. Different technological 

capacities of permitted activities may 

present very different risk or impact 

profiles. This issue was addressed in 

CEQ’s August 16, 2010 report reviewing 

the Department of the Interior’s 

Minerals Management Service’s 

application of NEPA to the permitting of 

deepwater oil and gas drilling.39

Agencies should review their 

categorical exclusions on an established 

timeframe, beginning with the 

categorical exclusions that were 

established earliest and/or the 

categorical exclusions that may have the 

greatest potential for significant 

environmental impacts. This guidance 

recommends that agencies develop a 

process and timeline to periodically 

review their categorical exclusions (and 

extraordinary circumstances) to ensure 

that their categorical exclusions remain 

current and appropriate, and that those 

reviews should be conducted at least 

every seven years. A seven-year cycle 

allows the agencies to regularly review 

categorical exclusions to avoid the use 

of categorical exclusions that are 

outdated and no longer appropriate. If 

the agency believes that a different 

timeframe is appropriate, the agency 

should articulate a sound basis for that 

conclusion, explaining how the 

alternate timeframe will still allow the 

agency to avoid the use of categorical 

exclusions that are outdated and no 

longer appropriate. The agency should 

publish its process and time period, 

along with its articulation of a sound 

basis for periods over seven years, on 

the agency’s Web site and notify CEQ 

where on the Web site the review 

procedures are posted. We recognize 

that due to competing priorities, 

resource constraints, or for other 

reasons, agencies may not always be 

able to meet these time periods. The fact 

that a categorical exclusion has not been 

evaluated within the time established 

does not invalidate its use for NEPA 

compliance, as long as such use is 

consistent with the defined scope of the 

exclusion and has properly considered 

any potential extraordinary 

circumstances. 

In establishing this review process, 

agencies should take into account 

factors including changed 

circumstances, how frequently the 

categorical exclusions are used, the 

extent to which resources and 

geographic areas are potentially 

affected, and the expected duration of 

impacts. The level of scrutiny and 

evaluation during the review process 

should be commensurate with a 

categorically-excluded activity’s 

potential to cause environmental 

impacts and the extent to which 

relevant circumstances have changed 

since it was issued or last reviewed. 

Some categorical exclusions, such as for 

routine purchases or contracting for 

office-related services, may require 

minimal review. Other categorical 

exclusions may require a more thorough 

reassessment of scope, environmental 

effects, and extraordinary 

circumstances, such as when they are 

tiered to programmatic EAs or EISs that 

analyzed activities whose underlying 

circumstances have since changed. 

To facilitate reviews, the Federal 

agency offices charged with overseeing 

their agency’s NEPA compliance should 

develop and maintain sufficient 

capacity to periodically review their 

existing categorical exclusions to ensure 

that the agency’s prediction of no 

significant impacts is borne out in 

practice.40 Agencies can efficiently 

assess changed circumstances by 

utilizing a variety of methods such as 

those recommended in Section III, 

above, for substantiating new or revised 

categorical exclusions. These methods 

include benchmarking, monitoring of 

previously implemented actions, and 

consultation with professional staff. The 

type and extent of monitoring and other 

information that should be considered 

in periodic reviews, as well as the 

particular entity or entities within the 

agency that would be responsible for 

gathering this information, will vary 

depending upon the nature of the 

actions and their anticipated effects. 

Consequently, agencies should utilize 

the expertise, experience, and judgment 

of agency professional staff when 

determining the appropriate type and 

extent of monitoring and other 

information to consider. This 

information will help the agency 

determine whether its categorical 

exclusions are used appropriately, or 

whether a categorical exclusion needs to 

be revised. Agencies can also use this 

information when they engage 

stakeholders in developing proposed 

revisions to categorical exclusions and 

extraordinary circumstances. 

Agencies can also facilitate reviews by 

keeping records of their experiences 

with certain activities in a number of 

ways, including tracking information 

provided by agency field offices.41 In 

such cases, a Federal agency could 

conduct its periodic review of an 

established categorical exclusion by 

soliciting information from field offices 

about the observed effects of 

implemented actions, both from agency 

personnel and the public. On-theground monitoring to evaluate 

environmental effects of an agency’s 

categorically-excluded actions, where 

appropriate, can also be incorporated 

into an agency’s procedures for 

conducting its oversight of ongoing 

projects and can be included as part of 

regular site visits to project areas. 

Agencies can also conduct periodic 

review of existing categorical exclusions 

through broader program reviews. 

Program reviews can occur at various 

levels (for example, field office, division 

office, headquarters office) and on 

various scales (for example, geographic 

location, project type, or areas identified 

in an interagency agreement). While a 


jdjones on DSK8KYBLC1PROD with RULES
75638 Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / Rules and Regulations 

42Agencies should be mindful of their obligations 

to maintain and preserve agency records under the 

Federal Records Act for maintaining and preserving 

agency records. 44 U.S.C. 3101 et seq. 

Federal agency may choose to initiate a 

program review specifically focused on 

categorical exclusions, it is possible that 

program reviews with a broader focus 

may yield information relevant to 

categorical exclusions and may thus 

substitute for reviews specifically 

focused on categorical exclusions. 

However, the substantial flexibility that 

agencies have in how they structure 

their review procedures underscores the 

importance of ensuring that the review 

procedures are clear and transparent. 

In working with agencies on 

reviewing their existing categorical 

exclusions, CEQ will look to the actual 

impacts from activities that have been 

subject to categorical exclusions, and 

will consider the extent and scope of 

agency monitoring and/or other 

substantiating evidence. As part of its 

oversight role and responsibilities under 

NEPA, CEQ will contact agencies 

following the release of this guidance to 

ascertain the status of their reviews of 

existing categorical exclusions. CEQ 

will make every effort to align its 

oversight with reviews being conducted 

by the agency and will begin with those 

agencies that are currently reassessing 

their categorical exclusions, as well as 

with agencies that are experiencing 

difficulties or facing challenges to their 

application of categorical exclusions. 

Finally, it is important to note that the 

rationale and supporting information for 

establishing or documenting experience 

with using a categorical exclusion may 

be lost if an agency has inadequate 

procedures for recording, retrieving, and 

preserving documents and 

administrative records. Therefore, 

Federal agencies will benefit from a 

review of their current practices for 

maintaining and preserving such 

records. Measures to ensure future 

availability could include greater 

centralization of records, use of modern 

storage systems and improvements in 

the agency’s electronic and hard copy 

filing systems.42

VII. Conclusion 

This guidance will help to guide CEQ 

and the agencies when an agency seeks 

to propose a new or revised categorical 

exclusion. It should also guide the 

agencies when categorical exclusions 

are used for proposed actions, when 

reviewing existing categorical 

exclusions, or when proposing new 

categorical exclusions. Questions 

regarding this guidance should be 

directed to the CEQ Associate Director 

for NEPA Oversight. 

Nancy H. Sutley, 

Chair. 

[FR Doc. 2010–30017 Filed 12–3–10; 8:45 am] 

BILLING CODE 3125–W0–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 100218107–0199–01] 

RIN 0648–XY31 

Fisheries Off West Coast States; 

Modifications of the West Coast 

Commercial and Recreational Salmon 

Fisheries; Inseason Actions #12 and 

#13 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Modification of fishing seasons, 

gear restrictions, and landing and 

possession limits; request for comments. 

SUMMARY: NOAA Fisheries announces 

two inseason actions in the ocean 

salmon fisheries. Inseason action #12 

modified the commercial fishery in the 

area from the U.S./Canada Border to 

Cape Falcon, Oregon. Inseason action 

#13 modified the commercial and 

recreational fisheries in the area from 

U.S./Canada Border to Cape Falcon, 

Oregon. 

DATES: Inseason actions #12 and #13 

were effective on August 6, 2010, and 

remain in effect until the closing date of 

the 2010 salmon season announced in 

the 2010 annual management measures 

or through additional inseason action. 

Comments will be accepted through 

December 21, 2010. 

ADDRESSES: You may submit comments, 

identified by 0648–XY31, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: 206–526–6736, Attn: Peggy 

Busby. 

• Mail: 7600 Sand Point Way, NE., 

Building 1, Seattle, WA, 98115. 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive or protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Peggy Busby, by phone at 206–526– 

4323. 

SUPPLEMENTARY INFORMATION: In the 

2010 annual management measures for 

ocean salmon fisheries (75 FR 24482, 

May 5, 2010), NMFS announced the 

commercial and recreational fisheries in 

the area from the U.S./Canada Border to 

the U.S./Mexico Border, beginning 

May 1, 2010. 

The Regional Administrator (RA) 

consulted with representatives of the 

Council, Washington Department of 

Fish and Wildlife, and Oregon 

Department of Fish and Wildlife on 

August 5, 2010. The information 

considered during this consultation 

related to Chinook and coho salmon 

catch to date and Chinook and coho 

salmon catch rates compared to quotas 

and other management measures 

established preseason. 

Inseason action #12 reduced the 

landing and possession limit for 

Chinook salmon in the commercial 

salmon fishery from the U.S./Canada 

Border to Cape Falcon, Oregon. 

Previously, inseason action #11 (75 FR 

54791, September, 9, 2010) imposed an 

open period landing and possession 

limit of 60 Chinook salmon and 50 coho 

per vessel. Inseason action #12 

decreased the Chinook salmon landing 

and possession limit to 30 Chinook 

salmon per vessel; the open period 

landing and possession limit for coho 

was unchanged by inseason action #12. 

This action was taken because Chinook 

salmon catches increased dramatically 

in the previous week, and there was 

concern that if the landing limit was not 

reduced the fishery would quickly 

exhaust the remaining Chinook salmon 

quota. On August 5, 2010, the States 

recommended this action and the RA 

concurred; inseason action #12 took 

effect on August 6, 2010. Modification 

of quota and/or fishing seasons is 

authorized by 50 CFR 660.409 (b)(1)(i). 

Inseason action #13 modified the 

quotas for the commercial and 

recreational fisheries through an 

inseason trade and transfer of quota; 

7,000 coho were transferred from the 


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