Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 14473 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves establishing a temporary safety 

zone that will be enforced for only two 

hours. An environmental analysis 

checklist and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add a temporary § 165.T07–0110 to 

read as follows: 

§ 165.T07–0110 Safety Zone; Festival of 

States 2012 Night Parade Fireworks 

Display, Tampa Bay, St. Petersburg, FL. 

(a) Regulated Area. The following 

regulated area is a safety zone: All 

waters of Tampa Bay within a 375 yard 

radius of position 27°46′31′′ N, 

82°37′38′′ W. All coordinates are North 

American Datum 1983. 

(b) Definition. The term ‘‘designated 

representative’’ means Coast Guard 

Patrol Commanders, including Coast 

Guard coxswains, petty officers, and 

other officers operating Coast Guard 

vessels, and Federal, state, and local 

officers designated by or assisting the 

Captain of the Port St. Petersburg in the 

enforcement of the regulated area. 

(c) Regulations. (1) All persons and 

vessels are prohibited from entering, 

transiting through, anchoring in, or 

remaining within the regulated area 

unless authorized by the Captain of the 

Port St. Petersburg or a designated 

representative. 

(2) Persons and vessels desiring to 

enter, transit through, anchor in, or 

remain within the regulated area may 

contact the Captain of the Port St. 

Petersburg by telephone at (727) 824– 

7524, or a designated representative via 

VHF radio on channel 16, to request 

authorization. If authorization to enter, 

transit through, anchor in, or remain 

within the regulated area is granted by 

the Captain of the Port St. Petersburg or 

a designated representative, all persons 

and vessels receiving such authorization 

must comply with the instructions of 

the Captain of the Port St. Petersburg or 

a designated representative. 

(3) The Coast Guard will provide 

notice of the regulated area by Local 

Notice to Mariners, Broadcast Notice to 

Mariners, and on-scene designated 

representatives. 

(d) Effective Date. This rule is 

effective from 8 p.m. until 10 p.m. on 

March 22, 2012. 

Dated: February 21, 2012. 

S.L. Dickinson, 

Captain, U.S. Coast Guard, Captain of the 

Port. 

[FR Doc. 2012–5858 Filed 3–9–12; 8:45 am] 

BILLING CODE 9110–04–P 

COUNCIL ON ENVIRONMENTAL 

QUALITY 

40 CFR Parts 1500, 1501, 1502, 1503, 

1505, 1506, 1507, and 1508 

Final Guidance on Improving the 

Process for Preparing Efficient and 

Timely Environmental Reviews Under 

the National Environmental Policy Act 

AGENCY: Council on Environmental 

Quality. 

ACTION: Notice of availability, final 

guidance. 

SUMMARY: The Council on 

Environmental Quality (CEQ) is issuing 

its final guidance on Improving the 

Process for Preparing Efficient and 

Timely Environmental Reviews under 

the National Environmental Policy Act. 

The National Environmental Policy Act 

(NEPA) and CEQ Regulations 

implementing NEPA provide numerous 

techniques for preparing efficient and 

timely environmental reviews. CEQ is 

issuing this guidance for Federal 

departments and agencies to emphasize 

and clarify that these techniques are 

available for all NEPA Environmental 

Assessments and Environmental Impact 

Statements. These techniques are 

consistent with a thorough and 

meaningful environmental review and 

agencies using these techniques should 

keep in mind the following basic 

principles: NEPA encourages 

straightforward and concise reviews and 

documentation that are proportionate to 

potential impacts and effectively convey 

the relevant considerations in a timely 

manner to the public and decision 

makers, while rigorously addressing the 

issues presented; NEPA shall be 

integrated into project planning to 

ensure planning and decisions reflect 

environmental considerations, avoid 

delays later in the process, and 

anticipate and attempt to resolve issues, 

rather than be an after-the-fact process 

that justifies decisions already made; 

NEPA reviews should coordinate and 

take appropriate advantage of existing 

documents and studies, including 

through adoption and incorporation by 

reference; early and well-defined 

scoping can assist in focusing 

environmental reviews on appropriate 

issues that would be meaningful to a 

decision on the proposed action; 

agencies are encouraged to develop 

meaningful, predictable, and 

expeditious timelines for environmental 

reviews; and agencies should respond to 

comments in proportion to the scope 

and scale of the environmental issues 

raised. This guidance applies equally to 

the preparation of an Environmental 

Assessment or an Environmental Impact 

Statement consistent with legal 

precedent and agency NEPA experience 

and practice. This guidance does not 

change or substitute for any law, 

regulations, or any other legally binding 

requirement. It does provide CEQ’s 

interpretation of existing regulations 

promulgated under NEPA. 

DATES: The guidance is effective March 

12, 2012. 

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: Enacted in 

1970, the National Environmental 

Policy Act (NEPA), 42 U.S.C. 4321– 

4346b, 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 


pmangrum on DSK3VPTVN1PROD with RULES
14474 Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / 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. 

2 ‘‘Improving Regulation and Regulatory Review,’’ 

E.O. 13,563, 76 FR 3821 (January 21, 2011), 

available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/ 

pdf/2011-1385.pdf. 

3National Enviromental Policy Act (NEPA) Draft 

Guidance, Improving the Process for Preparing 

Efficient and Timely Environmental Reviews under 

the National Environmental Policy Act, 76 FR 

77,492, Dec. 11, 2011. 

affect the environment and mandates 

that Federal agencies consider the 

environmental impacts of their 

proposed actions before deciding to 

adopt proposals or take action.1 Our 

ongoing review of the CEQ Regulations 

implementing NEPA at 40 Code of 

Federal Regulations Parts 1500–1508 

confirms the benefits of integrating 

planning and environmental reviews, 

coordinating multi-agency or multigovernmental reviews and approvals, 

and setting clear schedules for preparing 

EAs and EISs. This guidance promotes 

a sufficient and effective process that is 

tailored to avoid excessive burden. This 

guidance also reflects CEQ’s continuing 

commitment to implement its Plan for 

Retrospective Review of Existing 

Regulations (Plan) in accordance with 

Executive Order 13563.2

The guidance addresses numerous 

individual issues associated with the 

NEPA review process in a manner that 

meets the CEQ goals of promoting 

techniques that will modernize the use 

of NEPA, enabling agencies to more 

effectively and efficiently make use of 

the NEPA. The individual issues 

addressed include the use of concise 

NEPA documents focused on particular 

environmental issues, the integration of 

NEPA into preliminary parts of the 

planning process, and a more prevalent 

role of scoping in the development of 

NEPA reviews. The guidance also 

advises agencies to collaborate with 

other Federal, State, local, or Tribal 

agencies and representatives as well as 

to coordinate reviews and documents 

with other laws to allow for greater 

efficiency. It further explains the 

procedures to adopt other Federal 

agency reviews and to incorporate by 

reference information and analyses 

contained in other documents, and 

emphasizes the need for reasonable and 

proportionate responses to comments 

within the NEPA process. Finally, the 

guidance recommends agencies use 

appropriate time limits to promote 

efficiency. Thus, this guidance offers 

concrete tools for NEPA reviews to 

facilitate a more targeted, efficient, and 

informative analysis of environmental 

issues and impacts. 

This guidance provides CEQ’s 

interpretation of existing regulations 

promulgated under NEPA, and does not 

change agencies’ obligations with regard 

to NEPA and the CEQ Regulations 

implementing NEPA. 

The Federal Register notice 

announcing the draft Guidance on 

Improving the Process for Preparing 

Efficient and Timely Environmental 

Reviews under the National 

Environmental Policy Act was 

published on December 13, 2011.3 CEQ 

appreciates the thoughtful responses to 

its request for comments on the draft 

guidance. Commenters included private 

citizens, corporations, environmental 

organizations, trade associations, 

Federal agencies, and state agencies. 

CEQ received 61 comments, which are 

available online at 

www.whitehouse.gov/administration/ 

eop/ceq/initiatives/nepa/comments. 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. 

What’s New in This Guidance 

Many commenters felt that the draft 

guidance was merely a rehash of 

previous guidance issued by the CEQ, 

with no new insights or procedures for 

making the NEPA process more 

efficient. This guidance highlights and 

focuses on the existing provisions under 

the CEQ Regulations implementing 

NEPA and clarifies that they are 

available for the preparation of 

Environmental Assessments, as well as 

Environmental Impact Statements, so 

that Federal agencies can focus on 

specific techniques that provide the best 

use of agency resources in ensuring a 

timely, effective, and efficient NEPA 

review. This guidance applies equally to 

the preparation of Environmental 

Assessments and Environmental Impact 

Statements consistent with legal 

precedent and agencies’ NEPA 

experience and practice. It does not 

create or endorse any new requirements 

or obligations that would lengthen the 

process. 

Strength of Guidance 

Comments on the strength of the draft 

guidance varied widely, with some 

commenters finding that the guidance 

did not do enough to force agencies to 

expedite review and other commenters 

feared the guidance weakened the 

importance of NEPA for agency decision 

making. The guidance reinforces and 

clarifies what Federal agencies should 

do, and are already allowed to do, under 

NEPA and the CEQ’s NEPA 

implementing regulations. For example, 

the second principle on integrating 

NEPA with planning now states that 

agencies ‘‘shall’’ integrate NEPA into 

project planning which reflects the 

direction provided in current 

regulations. When Congress enacted 

NEPA, it charged CEQ with interpreting 

the statute. Pursuant to its authority, 

over the years CEQ has issued guidance 

on a variety of topics. Today’s guidance 

provides CEQ’s interpretation of its 

already established regulations 

promulgated for NEPA implementation 

and does not change agencies’ 

obligations with regard to those 

regulations. 

Public Participation 

Some comments desired further 

emphasis on the public participation 

component of NEPA as a part of this 

guidance, or felt that the lack of public 

participation guidance in this document 

suggested that public participation is 

not viewed by the CEQ to be an integral 

part of the NEPA process. The CEQ 

believes that public participation is a 

crucial and integral part of NEPA, and 

the portions of this guidance which 

address public participation do nothing 

to change or deemphasize this fact. The 

focus of much of this guidance is on the 

review and implementation procedures 

of agencies, especially the physical 

writing of NEPA documents and 

internal agency review procedures 

which do not have a direct interaction 

with the public. Earlier CEQ guidance 

has emphasized the importance of 

public participation; see, for example 

the guidance for developing and using 

categorical exclusions available at 

http://ceq.hss.doe.gov/ceq_regulations/

NEPA_CE_Guidance_Nov232010.pdf. 

The Final Guidance 

For reasons stated in the preamble, 

above, CEQ issues the following 

guidance on Improving the Process for 

Preparing Efficient and Timely 

Environmental Reviews under the 

National Environmental Policy Act. The 

final guidance is provided here and is 

available on the National Environmental 

Policy Act Web site (http:// 

www.nepa.gov) at http:// 

ceq.hss.doe.gov/ceq_regulations/

guidance.html and on the CEQ Web site 

at http://www.whitehouse.gov/

administration/eop/ceq/initiatives/ 

nepa. 


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Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 14475 

4 Improving Regulation and Regulatory Review, 

E.O. No. 13,563, 76 Fed. Reg. 3,821 (Jan. 21, 2011), 

available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/ 

pdf/2011-1385.pdf. 

5This 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, regulations, or any other 

legally binding requirement and is not legally 

enforceable. The use of non-mandatory terminology 

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

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

policies and recommendations. The use of 

mandatory terminology such as ‘‘shall,’’ ‘‘must,’’ 

and ‘‘required’’ is intended to describe controlling 

requirements under NEPA and the CEQ 

Regulations, but this document does not establish 

legally binding requirements in and of itself. 

6The Council on Environmental Quality (CEQ) 

Regulations for Implementing the Procedural 

Provisions of the National Environmental Policy 

Act, 40 CFR parts 1500–1508 (2011) [hereinafter 

CEQ Regulations], available on www.nepa.gov at 

ceq.hss.doe.gov/ceq_regulations/regulations.html. 

7These guidance documents are available online 

at ceq.hss.doe.gov/ceq_regulations/guidance. 

8Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). 

9 40 CFR 1500.1(c). 

10Categorical exclusions can also be created 

through legislation. 

11 40 CFR 1508.4, 1500.5(k). 

12 40 CFR 1508.9. 

13 40 CFR 1505.2. 

14CEQ, ‘‘Establishing, Applying, and Revising 

Categorical Exclusions under the National 

Environmental Policy Act’’ (Nov. 23, 2010), 

available at ceq.hss.doe.gov/ceq_regulations/NEPA_

CE_Guidance_Nov232010.pdf. 

Memorandum for Heads of Federal 

Departments and Agencies 

FROM: NANCY H. SUTLEY, Chair, 

Council on Environmental Quality 

SUBJECT: Improving the Process for 

Preparing Efficient and Timely 

Environmental Reviews Under the 

National Environmental Policy Act 

A wide array of tools is available to 

meet the goal of high quality, efficient, 

and timely environmental reviews 

under the National Environmental 

Policy Act (NEPA). The Council on 

Environmental Quality (CEQ) 

Regulations implementing NEPA 

contain a number of opportunities for 

achieving this goal. CEQ is issuing this 

guidance for Federal departments and 

agencies to emphasize and clarify those 

opportunities, fully consistent with a 

thorough and meaningful environmental 

review. The guidance also makes it clear 

that many of the provisions of the CEQ 

Regulations which specifically refer to 

an Environmental Impact Statement 

(EIS) provide efficiencies that can also 

be used to prepare an Environmental 

Assessment (EA). This guidance applies 

equally to the preparation of an EA or 

an EIS consistent with legal precedent 

and agency NEPA experience and 

practice. 

In conducting all environmental 

reviews pursuant to NEPA, agencies 

should use the methods set out in the 

CEQ Regulations and in their own 

agency NEPA implementing procedures 

in a way that is mindful of the following 

basic principles: 

• NEPA encourages straightforward 

and concise reviews and documentation 

that are proportionate to potential 

impacts and effectively convey the 

relevant considerations to the public 

and decisionmakers in a timely manner 

while rigorously addressing the issues 

presented; 

• NEPA shall be integrated into 

project planning to ensure planning and 

decisions reflect environmental 

considerations, avoid delays later in the 

process, and anticipate and attempt to 

resolve potential issues rather than be 

an after-the-fact process that justifies a 

decision already made; 

• NEPA reviews should coordinate 

and take appropriate advantage of 

existing documents and studies, 

including through adoption and 

incorporation by reference; 

• Early and well-defined scoping can 

assist in focusing environmental 

reviews on appropriate issues that 

would be meaningful to a decision; 

• Agencies are encouraged to develop 

meaningful and expeditious timelines 

for environmental reviews; and 

• Agencies should respond to 

comments in proportion to the scope 

and scale of the environmental issues 

raised. 

This guidance also reflects CEQ’s 

continuing commitment to implement 

its Plan for Retrospective Review of 

Existing Regulations (‘‘Plan’’) in 

accordance with Executive Order 

13563.4 Our ongoing review of the CEQ 

Regulations confirms the benefits of 

integrating environmental reviews into 

the decisionmaking process, 

coordinating multi-agency or multigovernmental reviews and approvals, 

and setting clear schedules for preparing 

EAs and EISs. This guidance promotes 

a sufficient and effective process that is 

tailored to avoid excessive burden. This 

guidance provides CEQ’s interpretation 

of existing regulations promulgated 

under NEPA, and does not change 

agencies’ obligations with regard to 

NEPA and the CEQ Regulations.5

Introduction and Steps to Date 

CEQ was created by NEPA in 1970 

and is charged with overseeing NEPA 

implementation by Federal agencies. In 

1978, CEQ issued the CEQ Regulations 

implementing NEPA.6 From time to 

time, CEQ issues guidance for the 

Federal agencies, to clarify the 

requirements and applicability of 

various provisions of NEPA and the 

CEQ Regulations, and to ensure that 

those requirements can be met in a 

timely and effective fashion.7 These 

guidance documents represent CEQ’s 

interpretation of NEPA, which the U.S. 

Supreme Court has said is ‘‘entitled to 

substantial deference.’’ 8

NEPA requires Federal agencies to 

consider the potential environmental 

consequences of their proposed action, 

and any reasonable alternatives, before 

deciding whether and in what form to 

take an action. Environmental reviews 

prepared under NEPA should provide a 

decisionmaker and the public with 

relevant and timely information, and the 

CEQ Regulations make it clear that 

‘‘NEPA’s purpose is not to generate 

paperwork—even excellent 

paperwork—but to foster excellent 

action.’’ 9

NEPA compliance can take three 

forms, a Categorical Exclusion, an EA, 

or an EIS: 

• Categorical Exclusion (CE): A CE 

describes a category of actions that are 

expected not to have individually or 

cumulatively significant environmental 

impacts.10 Each agency’s procedures for 

implementing NEPA sets out that 

agency’s CEs, which are established 

after CEQ and public review. A 

proposed action within such a category 

does not require further analysis and 

documentation in an EA or an EIS.11 A 

CE can be used after determining that a 

proposed action falls within the 

categories of actions described in the CE 

and that there are no extraordinary 

circumstances indicating further 

environmental review is warranted. 

• Environmental Assessment (EA): 

When a CE is not appropriate and the 

agency has not determined whether the 

proposed action will cause significant 

environmental effects, then an EA is 

prepared. If, as a result of the EA, a 

Finding of No Significant Impact 

(FONSI) is made, then the NEPA review 

process is completed with the FONSI, 

including documentation of its basis in 

the EA; otherwise an EIS is prepared.12

• Environmental Impact Statement 

(EIS): The most intensive level of 

analysis is the EIS, which is typically 

reserved for the analysis of proposed 

actions that are expected to result in 

significant environmental impacts. 

When an EIS is prepared, the NEPA 

review process is concluded when a 

record of decision (ROD) is issued.13

CEQ has been working with agencies 

to modernize and reinvigorate NEPA 

implementation in several ways. CEQ 

issued guidance on the development 

and use of Categorical Exclusions in 

November 2010.14 Properly developed 

and applied, CEs provide an efficient 


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15See 40 CFR 1500.4(p) (recommending 

categorical exclusions as a tool to reduce 

paperwork) and 1500.5(k) (recommending 

categorical exclusions as a tool to reduce delay). 

16CEQ, ‘‘Appropriate Use of Mitigation and 

Monitoring and Clarifying the Appropriate Use of 

Mitigated Findings of No Significant Impact’’ (Jan. 

14, 2011), available at ceq.hss.doe.gov/current_

developments/docs/Mitigation_and_Monitoring_

Guidance_14Jan2011.pdf. 

17CEQ, ‘‘Emergencies and the National 

Environmental Policy Act,’’ (May 12, 2010), 

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

Emergencies_and_NEPA_Memorandum_

12May2010.pdf. 

18Presidential Memorandum, ‘‘Speeding 

Infrastructure Development Through More Efficient 

and Effective Permitting and Environmental 

Review’’ (Aug. 31, 2011), available at 

www.whitehouse.gov/the-press-office/2011/08/31/

presidential-memorandum-speeding-infrastructuredevelopment-through-more. 

19 40 CFR 1500.4(b), 1502.2(b). 20 40 CFR 1502.2(c); see also 40 CFR 1502.2(a) 

(‘‘Environmental impact statements shall be 

analytic rather than encyclopedic.’’). 21 40 CFR 1502.2(b). 22 40 CFR 1500.4(g). 23 40 CFR 1500.4(j). 24 40 CFR 1500.4(k). 25See generally 40 CFR 1502.1 (EISs should be 

written in clear language so that decisionmakers 

and the public can understand them). 26 40 CFR 1502.8; see also www.plainlanguage.

gov. 27 40 CFR 1502.7. 

28 40 CFR 1502.2(c) (EISs ‘‘shall be kept concise 

and * * * [l]ength should vary first with potential 

environmental problems and then with project 

size’’). 29See CEQ, ‘‘Forty Most Asked Questions 

Concerning CEQ’s National Environmental Policy 

Act Regulations’’ (Mar. 16, 1981), available at ceq.

hss.doe.gov/nepa/regs/40/30-40.HTM#36 (Question 

36a and Answer). Note that at the time of FortyQuestions memorandum CEQ was of the opinion 

that mitigated Findings of No Significant Impact 

were only appropriate if the mitigation measures 

were imposed by statute or regulation, or submitted 

by an applicant or agency as part of the original 

proposal. See Id. (Question 40 and Answer). CEQ 

has since published guidance accepting mitigated 

FONSIs as another means of efficiently concluding 

the NEPA process without producing an EIS. CEQ, 

‘‘Appropriate Use of Mitigation and Monitoring and 

Clarifying the Appropriate Use of Mitigated 

Findings of No Significant Impact’’ (Jan. 14, 2011), 

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

docs/Mitigation_and_Monitoring_Guidance_

14Jan2011.pdf. 

30See 40 CFR 1508.9 (stating the EA is ‘‘a concise 

public document’’) and 40 CFR 1502.2(c) 

(interpreting the conciseness requirement for an EIS 

to mean that ‘‘[l]ength should vary first with 

potential environmental problems and then with 

project size’’). 

31 40 CFR 1508.9(a). 

tool to complete the NEPA 

environmental review process for 

proposals that normally do not require 

more resource-intensive EAs or EISs. 

The use of CEs can reduce paperwork 

and delay for proposed actions that do 

not raise the potential for significant 

environmental effects.15 In January 

2011, CEQ provided guidance that 

specifically addressed the appropriate 

use of a FONSI or mitigated FONSI to 

conclude a NEPA review process relying 

on an EA. A mitigated FONSI is 

appropriate when mitigation is used to 

avoid or lessen potentially significant 

environmental effects of proposed 

actions that would otherwise need to be 

analyzed in an EIS.16 In addition, in 

May 2010, CEQ issued guidance on 

ensuring efficient and expeditious 

compliance with NEPA when agencies 

must take exigent action to protect 

human health or safety and valued 

resources in a timeframe that does not 

allow sufficient time for the normal 

NEPA process.17

In August 2011 the President called 

for further steps to enhance the efficient 

and effective permitting and 

environmental review of infrastructure 

development ‘‘through such strategies as 

integrating planning and environmental 

reviews; coordinating multi-agency or 

multi-governmental reviews and 

approvals to run concurrently; setting 

clear schedules for completing steps in 

the environmental review and 

permitting process; and utilizing 

information technologies to inform the 

public about the progress of 

environmental reviews as well as the 

progress of Federal permitting and 

review processes.’’ 18 This guidance sets 

forth straightforward means by which 

the CEQ Regulations support these 

strategies. 

1. Concise NEPA Documents 

Agencies are encouraged to 

concentrate on relevant environmental 

analysis in their EAs and EISs, not to 

produce an encyclopedia of all 

applicable information.19

Environmental analysis should focus on 

significant issues, discussing 

insignificant issues only briefly.20

Impacts should be discussed in 

proportion to their significance, and if 

the impacts are not deemed significant 

there should be only enough discussion 

to show why more study is not 

warranted.21 Scoping,22 incorporation 

by reference,23 and integration of other 

environmental analyses 24 are additional 

methods that may be used to avoid 

redundant or repetitive discussion of 

issues.25

All NEPA environmental documents, 

not just EISs, shall be written in plain 

language,26 follow a clear format, and 

emphasize important impact analyses 

and information necessary for those 

analyses rather than providing extensive 

background material. Clarity and 

consistency ensure that the substance of 

the agency’s analysis is understood, 

avoiding unnecessary confusion or risk 

of litigation that could result from an 

ambiguous or opaque analysis. The CEQ 

Regulations indicate that the text of a 

final EIS that addresses the purpose and 

need, alternatives, affected 

environment, and environmental 

consequences should normally be less 

than 150 pages and a final EIS for 

proposals of unusual scope or 

complexity should normally be less 

than 300 pages.27

In light of the growth of 

environmental requirements since the 

publication of the CEQ Regulations, and 

the desire to use the EIS to address, via 

integration, those requirements, it is 

recognized that there will be a range of 

appropriate lengths of EISs. 

Nevertheless, agencies should keep EISs 

as concise as possible (continuing to 

relegate to appendices the relevant 

studies and technical analyses used to 

support the determinations and 

conclusions reached in the EIS) and no 

longer than necessary to comply with 

NEPA and the other legal and regulatory 

requirements being addressed in the 

EIS, and to provide decision makers and 

the public with the information they 

need to assess the significant 

environmental effects of the action 

under review. Length should vary with 

the number, complexity and 

significance of potential environmental 

problems.28

Similarly, the CEQ guidance issued in 

1981 indicated that 10–15 pages is 

generally appropriate for EAs.29 This 

guidance must be balanced with the 

requirement to take a hard look at the 

impacts of the proposed action. As with 

EISs, an EA’s length should vary with 

the scope and scale of potential 

environmental problems as well as the 

extent to which the determination of no 

significant impact relies on mitigation, 

rather than just with the scope and scale 

of the proposed action.30 The EA should 

be no more detailed than necessary to 

fulfill the functions and goals set out in 

the CEQ Regulations: (1) Briefly provide 

sufficient evidence and analysis for 

determining whether to prepare an EIS; 

(2) aid an agency’s compliance with 

NEPA when no EIS is necessary, i.e., the 

EA helps to identify and analyze better 

alternatives and mitigation measures; 

and (3) facilitate preparation of an EIS 

when one is necessary.31

2. Early NEPA Integration in Planning 

An agency should first consider 

integrating the NEPA process into 

planning when it structures its internal 

process for developing a proposed 

policy, program, management plan, or 

project. Agencies must integrate the 

NEPA process into their planning at the 

earliest possible time to ensure that 

planning and decisions reflect 

environmental values, avoid delays later 

in the process, and anticipate and 


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Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 14477 

32 40 CFR 1501.2. 

33 40 CFR 1502.2(g). 

34See CEQ Memorandum to Agencies, ‘‘Forty 

Most Asked Questions Concerning CEQ’s National 

Environmental Policy Act Regulations’’ (Mar. 16, 

1981), available at ceq.hss.doe.gov/nepa/regs/40/

11-19.HTM#13 (Question 13 and Answer). 

35See 40 CFR 1508.23 (explaining that a proposal 

exists as soon as an agency ‘‘has a goal and is 

actively preparing to make a decision on one or 

more alternative means of accomplishing that goal 

and the effects can be meaningfully evaluated’’). 

36 40 CFR 1502.5. For guidelines specific to 

different agency activities, see 40 CFR 1502.5(a)– 

(d). Misuse of the NEPA process to justify decisions 

already made is counterproductive and can result 

in litigation that could delay and ultimately prevent 

a proposed action from proceeding. 

37See 40 CFR 1501.2(d) (non-Federal entities 

plan activities prior to Federal involvement that 

trigger NEPA requirements). 

38 40 CFR 1507.3(b)(1). All agencies are required 

to adopt procedures that supplement the CEQ 

Regulations and provide NEPA implementing 

guidance that both provides agency personnel with 

additional, more specific direction for 

implementing the procedural provisions of NEPA 

and informs the public and State and local officials 

of how the CEQ Regulations will be implemented 

in agency decisionmaking. Agency procedures 

should therefore provide Federal personnel with 

the direction they need to implement NEPA on a 

day-to-day basis. The procedures must also provide 

a clear and uncomplicated picture of what those 

outside the Federal government may do to become 

involved in the environmental review process 

under NEPA. See CEQ, ‘‘Agency Implementing 

Procedures Under CEQ’s NEPA Regulations’’ (Jan. 

19, 1979), available at ceq.hss.doe.gov/nepa/regs/

exec11979.html. Some examples of agency NEPA 

implementing procedures are the Department of the 

Interior, ‘‘Department Manual: Managing the NEPA 

Process—National Park Service’’ (May 27, 2004), 

available at http://206.131.241.18/app_dm/act_

getfiles.cfm?relnum=3622 and the Department of 

the Interior, ‘‘Departmental Manual: Managing the 

NEPA Process—Bureau of Land Management’’ (May 

8, 2008), available at http://elips.doi.gov/app_dm/ 

act_getfiles.cfm?relnum=3799. 

39 40 CFR 1501.2(d)(1). 

40 40 CFR 1501.2(d)(2). Agencies should be 

cognizant of their obligations under current 

Executive Orders 13175 (Consultation and 

Coordination with Indian Tribal Governments, Nov. 

6, 2000) and 112898 (Federal Actions to Address 

Environmental Justice in Minority Populations and 

Low-Income Populations, Feb 11, 1994), available 

at ceq.hss.doe.gov/laws_and_executive_orders/

executive_orders.html. 

41 40 CFR 1501.2(d)(3). 

42See 40 CFR 1501.7 (‘‘There shall be an early 

and open process for determining the scope of 

issues to be addressed and for identifying the 

significant issues related to a proposed action. This 

process shall be termed scoping.’’). 

43 40 CFR 1500.4(b), (g) and 1501.7. 

44 See 40 CFR 1501.6, 1508.5 (responsibilities of 

the lead agency include the requirement to request 

the participation of any other Federal agency which 

has jurisdiction by law). CEQ has released previous 

guidance on engaging other agencies with 

jurisdiction over permits and other approvals 

required for a proposal to proceed. CEQ, 

‘‘Cooperating Agencies in Implementing the 

Procedural Requirements of the National 

Environmental Policy Act’’ (Jan. 30, 2002), available 

at ceq.hss.doe.gov/nepa/regs/cooperating/

cooperatingagenciesmemorandum.html; CEQ, 

‘‘Forty Most Asked Questions Concerning CEQ’s 

National Environmental Policy Act Regulations’’ 

(Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/ 

regs/40/11-19.HTM#14 (Question and Answer 14). 

45 40 CFR 1501.7(a)(3). 

46 40 CFR 1500.4(g). 

47See generally 40 CFR 1501.4(b) (agencies are to 

involve the public in the preparation of EAs; the 

manner in which they do so is left to the agency). 

attempt to resolve potential issues.32

NEPA should not become an after-thefact process that justifies decisions that 

have already been made.33

The CEQ Regulations emphasize early 

NEPA planning in the context of an EIS. 

The scoping process can be used before 

an agency issues a notice of intent to 

seek useful information on a proposal 

from agencies and the public.34 For 

example, agencies can commence the 

process to prepare an EIS during the 

early stages of development of a 

proposal, to ensure that the 

environmental analysis can be 

completed in time for the agency to 

consider the final EIS before making a 

decision on the proposal.35 Further, an 

agency shall prepare an EIS so that it 

can inform the decisionmaking process 

in a timely manner ‘‘and will not be 

used to rationalize or justify decisions 

already made.’’ 36

To prepare efficient EAs, agencies 

should adhere to these same principles 

and ensure that the EA is prepared in 

conjunction with the development of 

the proposed action in time to inform 

the public and the decisionmaker. 

Agencies should review their NEPA 

implementing procedures as well as 

their NEPA practices to ensure that 

NEPA is integrated into overall project 

planning and management to the fullest 

extent possible. 

The CEQ Regulations call upon 

agencies to provide for situations where 

the initial planning process is in the 

hands of an applicant or other nonFederal entity.37 The Regulations 

require Federal agencies to address 

these situations in their NEPA 

implementing procedures.38

Consequently, agencies that have a 

reasonably foreseeable role in actions 

that are initially developed by private 

applicants or other non-Federal entities 

must plan for those situations. The 

NEPA implementing procedures for 

such agencies must provide access to 

designated staff or the policies that can 

inform applicants and other non-Federal 

entities of studies or other information 

foreseeably required for later Federal 

action.39

Advanced planning prior to Federal 

involvement in an action must also 

ensure that the Federal agency is able to 

initiate early consultation with 

appropriate Tribes, States, local 

agencies, and interested private persons 

and organizations when Federal 

involvement is reasonably foreseeable.40

For actions initiated at the request of a 

non-Federal entity, Federal agencies 

should begin the NEPA process for 

preparing their EA or EIS as early as 

possible but no later than upon receipt 

of a complete application.41 Federal 

agencies should, whenever possible, 

guide applicants to gather and develop 

the appropriate level of information and 

analyses in advance of submitting an 

application or other request for Federal 

agency action. For example, several 

agencies require an applicant to prepare 

and submit an environmental report to 

help prepare the NEPA analyses and 

documentation and facilitate the lead 

agency’s independent environmental 

review of the proposal. 

3. Scoping 

To effectuate integrated decision 

making, avoid duplication, and focus 

the NEPA review, the CEQ Regulations 

provide for ‘‘scoping.’’ 42 In scoping, the 

lead agency determines the issues that 

the EA or EIS will address and identifies 

the significant impacts related to the 

proposed action that will be considered 

in the analysis.43 To increase efficiency, 

the lead agency can solicit cooperation 

at the earliest possible time from other 

agencies that have jurisdiction by law or 

special expertise on any environmental 

issue that should be considered. 

Cooperating agencies with jurisdiction 

by law or special expertise can work 

with the lead agency to ensure that, 

whenever possible, one NEPA review 

process informs all the decisions needed 

to determine whether and, if so, how a 

proposed action will proceed.44

The CEQ Regulations explicitly 

address the role of scoping in 

preparation of an EIS. Agencies can also 

choose to take advantage of scoping 

whenever preparing an EA. Scoping can 

be particularly useful when an EA deals 

with uncertainty or controversy 

regarding potential conflicts over the 

use of resources or the environmental 

effects of the proposed action, or where 

mitigation measures are likely to play a 

large role in determining whether the 

impacts will be reduced to a level where 

a Finding of No Significant Impact can 

be made. A lead agency preparing an EA 

may use scoping to identify and 

eliminate from detailed study the issues 

that are not significant or that have been 

covered by prior environmental 

review.45 The scoping process provides 

a transparent way to identify significant 

environmental issues and to 

deemphasize insignificant issues,46

thereby focusing the analysis on the 

most pertinent issues and impacts.47 We 

recommend that agencies review their 

NEPA implementing procedures, as well 


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14478 Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 

48 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. 

Establishing cooperating agency status is discussed 

in greater detail in a CEQ memorandum addressed 

to the heads of Federal agencies, entitled 

‘‘Cooperating Agencies in Implementing the 

Procedural Requirements of the National 

Environmental Policy Act.’’ CEQ, ‘‘Cooperating 

Agencies in Implementing the Procedural 

Requirements of the National Environmental Policy 

Act’’ (Jan. 30, 2002), available at ceq.hss.doe.gov/

nepa/regs/cooperating/

cooperatingagenciesmemorandum.html. 

49 In cases where a Federal agency uses scoping 

for an EA and subsequently determines it is 

necessary to conduct an EIS, the agency should 

refer to the guidance previously published by the 

CEQ. See CEQ, ‘‘Forty Most Asked Questions 

Concerning CEQ’s National Environmental Policy 

Act Regulations’’ (Mar. 16, 1981), available at ceq.

hss.doe.gov/nepa/regs/40/30-40.HTM#13 (Question 

13 and the following answer state that scoping done 

before the assessment, and in aid of its preparation, 

cannot substitute for the normal scoping process 

after publication of the notice of intent, unless the 

earlier public notice stated clearly that this 

possibility was under consideration, and the notice 

of intent expressly provides that written comments 

on the scope of alternatives and impacts will still 

be considered). 

50 40 CFR 1501.6, 1508.5. CEQ has published 

guidance encouraging lead agencies to establish a 

formal cooperating agency relationship with other 

Federal agencies as well as State, Tribal, and local 

governmental entities. CEQ, ‘‘Cooperating Agencies 

in Implementing the Procedural Requirements of 

the National Environmental Policy Act’’ (Jan. 30, 

2002), available at ceq.hss.doe.gov/nepa/regs/

cooperating/cooperatingagenciesmemorandum.

html. 

51See, e.g., 40 CFR 1501.7(a)(4) (a lead agency 

may allocate assignments for EIS preparation and 

analysis among cooperating agencies during 

scoping). 

52 40 CFR 1501.7(a)(7). 

53 40 CFR 1501.7(b)(1)–(2), 1501.8. 

54 40 CFR 1506.2(b) (calling for collaboration ‘‘to 

the fullest extent possible’’). 

55 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) 

(encouraging Federal agencies to eliminate 

duplication with State and local procedures 

through joint preparation of documents). 

56 40 CFR 1500.2(c). This point is reiterated 

throughout the CEQ Regulations. 

57 40 CFR 1506.2(c). 

58Although joint processes usually lead to greater 

efficiency and better decisionmaking, a joint 

process may become unwieldy and the result is 

that, for some projects, combining a State and 

Federal process is not practical. 

59 40 CFR 1506.2(d). 

60 40 CFR 1506.2(d). 

61 40 CFR 1502.25(a). Examples provided in the 

Regulation are: The Fish and Wildlife Coordination 

Act (16 U.S.C. 661 et seq.); the National Historic 

Preservation Act (16 U.S.C. 470 et seq.); and the 

Endangered Species Act (16 U.S.C. 1531 et seq.). 

as their NEPA practices, to ensure they 

have the option of scoping for EAs. 

The scoping process can be 

particularly helpful in identifying 

opportunities to coordinate reviews and 

related surveys and studies required by 

other laws or by executive orders. 

Scoping can also be used to begin interand intra-governmental coordination if 

it is not already ongoing. To accomplish 

these goals, the lead agency preparing 

an EA or an EIS can choose to invite the 

participation of affected Federal, State, 

and local agencies, any affected Indian 

tribe, the proponent of the action, and 

‘‘other interested persons (including 

those who might not be in accord with 

the action on environmental 

grounds).’’ 48 In addition to facilitating 

coordination and the development of 

required environmental reviews, 

scoping will help to identify the 

universe of matters that need to be 

addressed with particular care and flag 

issues for thorough consideration, 

thereby defusing potential conflict that, 

absent early attention, could arise later 

and potentially delay the timely 

completion of the relevant NEPA review 

and agency decision.49

In sum, the scoping process provides 

an early opportunity to plan 

collaboration with other governments,50

assign responsibilities,51 and develop 

the planning and decisionmaking 

schedule.52 It also affords lead agencies 

the option of setting page limits for 

environmental documents and setting 

time limits for the steps in the NEPA 

process.53 Agencies may choose to use 

scoping whenever any of these 

techniques can provide for the more 

effective and efficient preparation of an 

EA. 

4. Inter-Governmental Coordination 

(State, Local, or Tribal Environmental 

Reviews) 

CEQ encourages Federal agencies to 

collaborate with Tribal, State, and local 

governments to the fullest extent 

possible to reduce duplication, unless 

the agencies are specifically barred from 

doing so by some other law.54 The CEQ 

Regulations explicitly provide for 

agencies to conduct joint planning 

processes, joint environmental research 

and studies, joint public hearings 

(except where otherwise precluded by 

statute), and joint environmental 

assessments.55 Federal agencies should 

explore every reasonable opportunity to 

integrate the requirements of NEPA with 

the external planning and 

environmental reviews required on the 

Federal as well as the State, Tribal, and 

local levels of government so that those 

reviews can run concurrently rather 

than consecutively.56

Where State law or local ordinances 

contain environmental impact analysis 

and documentation requirements in 

addition to, but not in conflict with, 

those in NEPA, the CEQ Regulations 

provide authority for producing joint 

EISs.57 In such cases, Federal agencies 

shall cooperate with the State, Tribal, 

and local governments to integrate 

environmental impact analysis and 

documentation requirements so that one 

document will suffice for complying 

with as many applicable environmental 

laws and requirements as practicable. 

Agencies should adhere to these same 

principles when preparing an EA. 

Federal agencies should seek 

efficiencies and avoid delay by 

attempting to meet applicable nonFederal NEPA-like requirements in 

conjunction with either an EA or an EIS 

wherever possible.58

The CEQ Regulations also require that 

a Federal agency preparing an EIS better 

integrate the EIS into non-Federal 

planning processes by discussing and 

explaining any inconsistency of a 

proposed Federal action with any 

approved State or local plans and 

laws.59 When preparing an EA or EIS, if 

an inconsistency with any approved 

Tribal, State, or local plan or law exists, 

the Federal agency should describe the 

extent to which it will reconcile its 

proposed action with the non-Federal 

plan or law.60

5. Coordinating Reviews and Documents 

Under Other Applicable Laws 

Agencies must integrate, to the fullest 

extent possible, their draft EIS with 

environmental impact analyses and 

related surveys and studies required by 

other statutes or Executive Orders.61

Coordinated and concurrent 

environmental reviews are appropriate 

whenever other analyses, surveys, and 

studies will consider the same issues 

and information as a NEPA analysis. 

Such coordination should be considered 

when preparing an EA as well as when 

preparing an EIS. Techniques available 

to agencies when coordinating a 

combined or a concurrent process 

include combining the scoping, requests 

for public comment, and preparation 

and display of responses to public 

comments. 

The goal should be to conduct 

concurrent rather than sequential 

processes whenever appropriate. In 

situations where one aspect of a project 

is within the particular expertise or 

jurisdiction of another agency an agency 

should consider whether adoption or 

incorporation by reference of materials 

prepared by the other agency would be 

more efficient. 

A coordinated or concurrent process 

may provide a better basis for informed 

decision making, or at least achieve the 

same result as separate or consecutive 

processes more quickly and with less 

potential for unnecessary duplication of 

effort. In addition to integrating the 

reviews and analyses, the CEQ 

Regulations allow an environmental 

document that complies with NEPA to 


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62 40 CFR 1506.4, 1500.4(k), 1500.4(n). 

63 40 CFR 1506.3. 

64See generally 40 CFR 1501.4(b), 1506.6 (both 

regulations direct agencies to involve the public in 

the preparation of EAs; however, the manner in 

which they do so is left to the agency). 

65 40 CFR 1506.3(c). 

66This guidance does not address tiering. Further 

guidance will be developed to address the use of 

broad, programmatic, analyses to focus future 

reviews and the subsequent, tiered, review of siteor project- specific proposed actions. 

67 40 CFR 1502.21. 

68 40 CFR 1502.21. 

69 40 CFR 1502.21 (material based on proprietary 

data which is itself not available for review and 

comment cannot be incorporated by reference). 

70 40 CFR 1503.4(c), 1500.4(m). 

71 40 CFR 1503.4(c). 

72 40 CFR 1503.4(c). 

73 40 CFR 1500.5(e). 

74 40 CFR 1501.8(b)(3). 

75See 40 CFR 1506.10 (setting 90 day time period 

between EPA publication of the notice of 

availability of a draft EIS and the Record of 

Decision, 30 day time period between EPA 

publication of the notice of availability of a final 

EIS and the Record of Decision, and 45 days for 

comment on a draft EIS). 

76CEQ encourages Federal agencies to set time 

limits consistent with the time intervals required by 

§ 1506.10. 40 CFR 1501.8. 

be combined with a subsequent agency 

document to reduce duplication and 

paperwork.62

6. Adoption 

The adoption of one Federal agency’s 

EIS, or a portion of that EIS, by another 

Federal agency is an efficiency that the 

CEQ Regulations provide.63 An agency 

preparing an EA should similarly 

consider adopting another agency’s EA 

or EIS when the EA or EIS, or a portion 

thereof, addresses the proposed action 

and meets the standards for an adequate 

analysis under NEPA, the CEQ’s 

Regulations, and the adopting agency’s 

NEPA implementing procedures. 

The CEQ Regulations require agencies 

to involve agencies, applicants, and the 

public when preparing an EA; however, 

they do not require agencies to do so by 

preparing a draft or final EA for public 

review or comment.64 If an agency’s 

implementing NEPA procedures 

establish requirements for public review 

and comment when preparing an EA, 

then the agency must provide a similar 

process when it adopts another agency’s 

EA, but may use the same efficiencies 

that are available when adopting 

another agency’s EIS. 

If the actions covered by the original 

EIS and the proposed action are 

substantially the same, the agency 

adopting the EIS is not required to 

recirculate the EIS as a draft for public 

review and comment. The same is true 

for the adoption of another agency’s EA 

when the original and proposed actions 

are substantially the same. In addition, 

in cases where the adopting agency is 

also a cooperating agency in the 

preparation of an EIS, it may adopt the 

lead agency’s EIS without recirculating 

the EIS as a draft or as a final EIS when, 

after an independent review, it 

concludes that the lead agency has 

adequately addressed the adopting 

agency’s comments and suggestions.65

Similarly, when the adopting agency 

was a cooperating agency in the 

preparation of an EA, it may adopt the 

EA without recirculating the EA. 

7. Incorporation by Reference 66

Incorporation by reference is another 

method that provides efficiency and 

timesaving when preparing either an EA 

or an EIS. The CEQ Regulations direct 

agencies to incorporate by reference 

material into an EIS to reduce the size 

of the EIS and avoid duplicative effort.67

An agency must provide a citation that 

clearly identifies the incorporated 

material in an EIS and briefly describe 

the content.68 The brief description 

should identify the referenced materials 

and the entity (Federal or non-Federal) 

that prepared the materials, inform the 

reader of the purpose and value of those 

materials (e.g., explain how the 

information or analyses are relevant to 

the issues associated with the proposal 

under review), and synopsize the basis 

provided in those materials that support 

any conclusions being incorporated. An 

agency may not incorporate any 

material by reference in an EIS unless 

the material is reasonably available for 

inspection by potentially interested 

persons within the time allowed for 

comment.69 There are many techniques 

available to make the referenced 

material readily available such as: 

Placing the relevant materials in an 

appendix; providing a hyperlink that 

provides Internet access to the 

materials; and placing materials in local 

libraries or facilities accessible to the 

public. Agencies can, consistent with 

NEPA and the CEQ Regulations, 

incorporate by reference analyses and 

information from existing documents 

into an EA provided the material has 

been appropriately cited and described, 

and the materials are reasonably 

available for review by interested 

parties. 

8. Expediting Responses to Comments 

Agencies should provide a reasonable 

and proportionate response to 

comments on a draft EIS by focusing on 

the environmental issues and 

information conveyed by the comments. 

When preparing a final EIS, if the draft 

EIS complies with NEPA, CEQ 

regulations, and agency implementing 

procedures, the agency may use the 

draft EIS as the final EIS under certain 

conditions. If changes in response to 

comments are minor and are limited to 

factual corrections and/or explanations 

of why the comments do not warrant 

further agency response, agencies may 

write them on errata sheets and attach 

them to the statement instead of 

rewriting the draft statement.70 In such 

cases, the agency must circulate and 

make available for public review as the 

final EIS only the comments, the 

responses and the changes.71 The 

comments, responses, and changes, as 

well as the draft document and a new 

cover sheet need to be filed to make the 

EIS final, under those circumstances.72

Similarly, if an agency issues an EA 

for comment and the changes in 

response to comments are minor and 

limited to factual corrections and/or 

explanations of why the comments do 

not warrant further agency response, 

then the agency may prepare a similar 

cover and errata sheet and use its draft 

EA as the final EA. When circulating 

draft EAs or EISs for public review and 

comment, we recommend agencies 

facilitate public review and comment by 

also publishing the EISs and EAs, and 

subsequently the comments received, on 

agency Web sites. 

9. Clear Time Lines for NEPA Reviews 

Establishing appropriate and 

predictable time limits promotes the 

efficiency of the NEPA process.73 The 

CEQ Regulations recommend that 

agencies designate a person (such as a 

project manager or a person in the 

agency’s office with NEPA 

responsibilities) to lead and shepherd 

the NEPA review to expedite the 

process.74 The CEQ Regulations do not 

prescribe universal time limits for the 

entire NEPA process; instead they set 

certain minimum time limits for the 

various portions of the NEPA process.75

The CEQ Regulations do encourage 

Federal agencies to set appropriate time 

limits for individual actions, however, 

and provide a list of factors to consider 

in establishing timelines.76 Those 

factors include: The potential for 

environmental harm; the size of the 

proposed action; other time limits 

imposed on the action by other statutes, 

regulations, or Executive Orders; the 

degree of public need for the proposed 

action and the consequences of delay; 

and the need for a reasonable 

opportunity for public review. 

The CEQ Regulations refer to the EIS 

process when describing the 

‘‘constituent parts of the NEPA process’’ 

to which time limits may apply, require 

agencies to set time limits at the request 


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14480 Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 

77 40 CFR 1501.8(b), (c). 

of an applicant, and allow agencies to 

set time limits at the request of other 

interested parties.77 It is entirely 

consistent with the purposes and goals 

of NEPA and with the CEQ Regulations 

for agencies to consider the same factors 

and determine appropriate time limits 

for the various phases of the EA process 

when requested by applicants, Tribes, 

States, local agencies, or members of the 

public. 

Conclusion 

This guidance highlights for agencies 

preparing either an EA or an EIS the 

ability to employ all the methods 

provided in the CEQ regulations to 

prepare concise and timely NEPA 

reviews. Using methods such as 

integrating planning and environmental 

reviews and permitting, coordinating 

multi-agency or multi-governmental 

reviews and approvals, and setting 

schedules for completing the 

environmental review will assist 

agencies in preparing efficient and 

timely EAs and EISs consistent with 

legal precedent and agency NEPA 

experience and practice. 

Nancy H. Sutley, 

Chair, Council on Environmental Quality. 

[FR Doc. 2012–5812 Filed 3–9–12; 8:45 am] 

BILLING CODE 3225–F2–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 212 

RIN 0750–AH61 

Defense Federal Acquisition 

Regulation Supplement: Commercial 

Determination Approval (DFARS Case 

2011–D041) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement to 

require higher-level approval for 

commercial item determinations for 

acquisitions exceeding $1 million when 

the determination is based on ‘‘of a 

type’’ or ‘‘offered for sale’’ language 

contained in the definition of 

commercial item. The rule also clarifies 

approval requirements for 

determinations for acquisitions of 

services exceeding $1 million using part 

12 procedures but which do not meet 

the definition of commercial item. 

DATES: March 12, 2012. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is revising the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a 

recommendation made by the Panel on 

Contracting Integrity and included in its 

2009 Report to Congress concerning 

compliance with the DFARS 

documentation requirements for 

commercial item determinations. The 

Panel on Contracting Integrity working 

group concluded, after reviewing a 

sampling of commercial contract 

awards, that contracting officer 

determinations are not always 

sufficiently documented in accordance 

with DFARS 212.102. 

DoD is issuing a final rule because 

this rule does not have a significant 

effect beyond the internal operating 

procedures of DoD and does not have a 

significant cost or administrative impact 

on contractors or offerors. This rule 

addresses DoD’s internal approval 

process for contracting officer 

determinations made pursuant to 

DFARS part 12 for actions in excess of 

$1 million. 

II. Discussion and Analysis 

The DFARS changes are as follows: 

• DFARS 212.102(a)(i) is revised to 

add ‘‘except for acquisitions made 

pursuant to Federal Acquisition 

Regulation (FAR) 12.102(f)(1).’’ This 

language clarifies that no additional 

contracting officer determination is 

required for acquisitions made pursuant 

to FAR 12.102(f)(1). 

• DFARS 212.102(a)(i)(A) is revised 

to add ‘‘or meets the criteria at FAR 

12.102(g)(1).’’ This language addresses 

the inconsistency between the existing 

DFARS language at 212.102(a)(i)(A) that 

all FAR part 12 acquisitions exceeding 

$1 million must meet the commercial 

item definition, and the exception at 

FAR 12.102(g)(1) that allows for the use 

of part 12 procedures for services that 

do not meet the definition of 

commercial item in FAR 2.101, as long 

as it meets specific criteria listed in FAR 

12.102(g)(1). The change clarifies that 

the contracting officer must determine 

that an acquisition exceeding $1 million 

and using part 12 procedures either 

meets the commercial item definition in 

part FAR 2.101 or the criteria set out at 

FAR 12.102(g)(1). 

• Adds DFARS 212.102(a)(i)(C) to 

require approval at one level above the 

contracting officer when the commercial 

item determination relies on subsections 

(1)(ii), (3), (4), or (6) of the ‘‘commercial 

item’’ definition at FAR 2.101. The 

higher-level approval is required for 

commercial item determinations for 

actions that exceed $1 million that are 

based on ‘‘of a type’’ commercial 

procurements or items ‘‘offered for sale’’ 

but not yet sold to the general public. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because this final 

rule does not constitute a significant 

DFARS revision as defined within the 

meaning at FAR 1.501–1, and 41 U.S.C. 

1707 does not require publication for 

comment. 

V. Paperwork Reduction Act 

The proposed rule does not contain 

any information collection requirements 

that require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Part 212 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 212 is 

amended as follows: 

■ 1. The authority citation for 48 CFR 

part 212 is revised to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Revise section 212.102 to read as 

follows: 


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