This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

45421 

Vol. 82, No. 188 

Friday, September 29, 2017 

NATIONAL CAPITAL PLANNING 

COMMISSION 

1 CFR Part 601 

National Environmental Policy Act 

Regulations 

AGENCY: National Capital Planning 

Commission. 

ACTION: Final rule. 

SUMMARY: The National Capital Planning 

Commission (NCPC or Commission) 

rescinds its current Environmental and 

Historic Preservation Policies and 

Procedures (2004 Policies) and hereby 

adopts new rules governing NCPC’s 

implementation of the National 

Environmental Policy Act (NEPA). 

DATES: This rule is effective October 30, 

2017. 

FOR FURTHER INFORMATION CONTACT: 

Anne R. Schuyler, (202) 482–7223 or 

NEPA@ncpc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Changes 

A. Background 

NCPC’s 2004 Policies were adopted in 

2004 (69 FR 41299, July 8, 2004) and 

generally remain appropriate. However 

certain portions of the 2004 Policies 

require revision to simplify, streamline, 

and improve the effectiveness of NCPC’s 

process for complying with NEPA. 

Accordingly, this document adopts a 

complete new rule. 

B. Elimination of Section 106 

Procedures 

One of the most significant changes 

reflected in the new rule is the 

elimination of procedures for complying 

with Section 106 of the National 

Historic Preservation Act (NHPA). In 

2004, when it adopted the 2004 Policies, 

NCPC opted to issue combined NEPA 

and NHPA guidance to ensure 

coordinated implementation of both 

procedures. However, regulations 

promulgated by the Advisory Council 

on Historic Preservation (ACHP) do not 

require agencies to adopt agency 

specific processes and procedures (see 

36 CFR chapter VIII). Instead ACHP 

regulations establish the processes and 

procedures all Federal Agencies must 

follow. This resulted in the inclusion of 

duplicative information in NCPC’s 2004 

Policies. While this information proved 

helpful, it diverted attention away from 

NCPC’s agency-specific NEPA 

procedures mandated by the Council on 

Environmental Quality (CEQ). 

Accordingly, this rule does not include 

detailed references to the Section 106 

consultation process. It does include a 

reference to coordination between 

NEPA and NHPA and consideration of 

historic resources in the NEPA process. 

C. Federal and Non-Federal Agencies 

To clarify roles and responsibilities, 

these Regulations distinguish between 

Federal Agency applicants and NonFederal Agency applicants. Federal 

Agency applicants include cabinet level 

departments and executive agencies 

such as the U.S. General Services 

Administration (GSA). Non-Federal 

Agency applicants include, without 

limitation, the Smithsonian Institution, 

the John F. Kennedy Center for the 

Performing Arts, the National Gallery of 

Art, the U.S. Institute of Peace, the 

Government of the District of Columbia, 

the Maryland National Capital Park and 

Planning Commission (MNCPPC), and 

private parties and entities 

implementing projects on Federal land. 

NCPC’s jurisdiction extends to NonFederal Agency applicants when they 

undertake projects on federally-owned 

land. Under this rule, NCPC serves as 

the Lead Agency for Non-Federal 

Agency applications. This is 

necessitated by the fact the Non-Federal 

Agencies are not subject to NEPA. 

However, if the Commission takes an 

approval action on a Non-Federal 

Agency application, the requirements of 

NEPA apply to the Commission’s 

decision-making process. This means 

NCPC must undertake the requisite 

steps of the NEPA process for a NonFederal Agency application to meet its 

legal obligation. 

D. Timing and Sequencing of 

Submission of NEPA Documents 

These Regulations also alter the 

timing and sequencing of an applicant’s 

submission of NEPA documentation for 

applications governed by the National 

Capital Planning Act and the 

Commemorative Works Act. Under the 

2004 Policies, an applicant was required 

to complete the NEPA process at the 

time of preliminary review. Under this 

rule, an applicant must complete its 

NEPA process at the time of final 

review. This revised approach allows 

the Commission an opportunity to 

provide input on a project when it is 

still in the developmental phase. It also 

provides a NEPA sequencing consistent 

with Federal Agency project 

development schedules. This eliminates 

the pressure on Federal Agency 

applicants to expedite its NEPA process 

to meet NCPC’s current sequencing 

requirements. 

E. Categorical Exclusions 

NCPC’s rule also includes changes to 

the list of projects eligible for 

application of a Categorical Exclusion 

(CATEX). The Regulations include 

several new CATEXs. NCPC eliminated 

several existing CATEXs because they 

were based on old, antiquated 

authorities which have little to no 

relationship to NCPC’s present day 

review roles. The rule also increase the 

number of extraordinary circumstances 

which negate the application of a 

CATEX. 

II. Summary of and Response to 

Comments 

A. General 

NCPC published a Proposed Rule (82 

FR 42570, May 30, 2017) addressing 

revisions to its 2004 Policies, 

establishing a 45-day public comment 

period. The public comment period 

closed on July 14, 2017. 

NCPC received a little under 100 

comments on its proposed NEPA rule 

Regulations. Comments were submitted 

by the General Services Administration, 

the U.S. Department of the Interior and 

it’s National Park Service, and the 

National Aeronautics and Space 

Administration; the Smithsonian 

Institution; the Washington Area 

Metropolitan Transit Authority; the 

National Trust for Historic Preservation; 

The Committee of 100 on the Federal 

City; approximately 21 members of the 

general public; and two private 

consulting firms. A summary chart of all 

the comments received and NCPC’s 

response thereto can be found on 

NCPC’s Web site at www.ncpc.gov/ 

subnepa. 


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The major comments can be grouped 

into six categories: (1) The elimination 

of detailed reference to compliance with 

Section 106 of the NHPA; (2) the 

treatment of Non-Federal Agencies in 

the Regulations; (3) the timing and 

sequencing of submitting NEPA 

Documents/Co-Signing a Finding of No 

Significant Impact (FONSI) or a Record 

of Decision (ROD); (4) NCPC’s reliance 

on the CATEX of other government 

agencies; and (5) the minimal focus on 

public participation in the NEPA 

process/lack of public knowledge of 

process for administering CATEXs. 

B. Revised Name for the Regulations 

NCPC decided to rename its NEPA 

requirements the National 

Environmental Policy Act Regulations 

(Regulations). This title is more 

descriptive of the true nature of the 

Regulations versus the title of 

Environmental Policies and Procedures 

conferred on the 2004 Policies. 

C. Elimination of NHPA Section 106 

Requirements 

Several comments addressed the 

elimination of NHPA Section 106 

procedures from the Regulations. The 

National Trust for Historic Preservation 

generally agreed with the elimination, 

but it suggested designating the NEPA 

Lead and Cooperating Agencies as the 

Lead and Consulting Parties for the 

Section 106 process. NCPC disagrees 

with this suggestion. NCPC maintains it 

is inappropriate to designate roles for 

the Section 106 process in its NEPA 

Regulations. To compensate for the 

elimination, a member of the public 

suggested reference to ACHP guidance 

on the ACHP for integrating NEPA and 

the Section 106 processes. While NCPC 

found merit to this comment and 

initially inserted an endnote to the 

ACHP Web site and the CEQ Web site 

for general NEPA guidance, CEQ 

believed the references unnecessary. 

Finally, the Committee of 100 on the 

Federal City maintained the elimination 

of references to the Section 106 process 

sent a negative message about the 

connection between the two processes. 

NCPC notes this was not its intention as 

evidenced by the clearly articulated 

policy in § 601.2(d) to integrate the 

requirements of NEPA with, among 

others, the requirements of the NHPA. 

D. Role of Non-Federal Agencies 

The role of Non-Federal Agencies in 

the NEPA process generated a number 

of comments. The Smithsonian 

Institution (designated a Non-Federal 

Agency in the Regulations) 

recommended the re-designation of 

Federal and Non-Federal Agencies as 

Executive and Non-Executive Agencies 

on the theory that this might be less 

confusing. NCPC declined to make this 

change because of the repeated use of 

the term ‘‘federal’’ in the National 

Capital Planning Act (40 U.S.C. 8701 et 

seq.). However, for clarification 

purposes, NCPC revised the definition 

of Non-Federal Agencies to indicate this 

designation applies only for purposes of 

NEPA. 

One member of the public challenged 

the legality of designating Non-Federal 

Agencies as ‘‘Cooperating Agencies’’ 

given that the CEQ regulatory definition 

only designates ‘‘federal agencies’’ as 

capable of serving in this capacity. 

NCPC notes this statement is only 

partially correct. The definition of 

Cooperating Agency in 40 CFR 1508.5 

also extends to state or local agencies 

rendering such agencies eligible to serve 

as Cooperating Agencies. This makes 

Cooperating Agency status appropriate 

for the Government of the District of 

Columbia and the Maryland National 

Capital Park and Planning Commission. 

As to the others listed in the 

definition—Smithsonian Institution, the 

John F. Kennedy Center for the 

Performing Arts, the National Gallery of 

Art, the U.S. Institute of Peace, and 

private parties undertaking 

development on Federal land—NCPC 

agrees an alternative approach is 

necessary. 

NCPC also agrees with the same 

individual’s multiple comments that 

NCPC does not undertake NEPA ‘‘on 

behalf’’ of Non-Federal Agencies. NCPC 

recognizes that the NEPA obligation for 

a Non-Federal Agency application 

belongs to NCPC. NCPC believes a 

minor wording change to ‘‘undertakes 

NEPA for a Non-Federal Agency 

application’’ solves this concern. 

Turning to an alternative approach for 

NEPA compliance for Non-Federal 

Agency applications, NCPC notes it is 

not alone in confronting the issue of 

Non-Federal Agency applications to 

which NEPA applies because of the 

Federal Agency’s approval/permitting 

authority. NCPC looked at the NEPA 

regulations for similarly situated 

Federal Agencies to ascertain how they 

handle the issue. One Federal Agency 

lists in its regulations the information 

that the Non-Federal Agency (permittee 

and owner of the project) must submit 

to facilitate staff’s preparation of the 

requisite NEPA document. Because this 

approach increased the complexity of 

the agency’s regulations, and NCPC’s 

goal is to streamline its regulations 

consistent with the Administration’s 

articulated regulatory reduction goals, 

NCPC adopted a modified version of 

this approach. 

NCPC will enter into a Memorandum 

of Agreement (MOA) (renamed from a 

Memorandum of Understanding or 

MOU in the proposed rule) with NonFederal Agencies. The MOA will 

specify, among others, the information 

the Non-Federal Agency must submit to 

enable preparation of the requisite 

environmental document by NCPC staff 

and the timing of the information’s 

submission. Contrary to the comments 

on one individual, NCPC disagrees the 

MOA approach is legally insufficient. 

This comment implies NCPC is 

relinquishing its NEPA responsibilities 

by entering into a MOA. This is not the 

case. NCPC considers the MOA an 

internal operating procedure within its 

authority to implement. It is also an 

efficient and effective way to fulfill its 

NEPA obligation and avoid some of the 

pitfalls associated with the prior 

approach of Cooperating Agency status. 

The problems avoided include 

budgetary issues if the Non-Federal 

Agency provides money to NCPC to 

retain a contractor, Non-Federal Agency 

participation in NCPC’s retention of the 

Non-Federal Agency funded contractor, 

and the potential for two A&E 

contractors working on different aspects 

of the same project. To facilitate public 

awareness, NCPC will post the 

completed MOA on the NCPC’s Web 

site. 

NCPC notes that in a follow-up 

conversation with the commenter to 

explore the rationale for opposing an 

MOA, the commenter agreed the MOA 

approach as outlined above is legally 

sufficient. NCPC conducted the followup conversation after the comment 

period closed, and no new comments 

were discussed during the conversation. 

E. Timing and Sequencing of Submitting 

NEPA Documents/Co-Signing FONSIs 

and RODs 

All the government agencies 

supported NCPC’s process change of 

moving NEPA completion to coincide 

with the Commission’s final approval. 

There was one concern expressed about 

the sequencing of NEPA and the 

Commemorative Works Act’s review 

process, but NCPC believes the 

comment was the result of a 

misunderstanding of the process. 

Multiple Federal Agencies also 

advised against incorporation of a 

provision allowing NCPC to co-sign 

another agency’s FONSI or ROD. NCPC 

notes that the Regulations render this 

practice discretionary. However, if both 

agencies agree on the contents of a 

FONSI or ROD, it makes no sense for 

NCPC to prepare a duplicated document 

for NCPC to sign. Obviously, if the two 

agencies have different reasons for 


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reaching a FONSI or a ROD, cosignature is not an option, and each 

agency will have to prepare its own 

document. Co-signature is also not an 

option if there is disagreement over the 

ability to reach a FONSI or ROD. This 

disagreement points to problems with 

the Environmental Document that must 

be resolved before the project can be 

presented to the Commission. Finally, 

NCPC reminds Federal Agencies that cosigning a FONSI or ROD is entirely 

consistent with the Administration’s 

efforts to streamline regulatory 

processes especially NEPA. 

F. Use of Another Agency’s CATEX 

The inclusion of five Categorical 

Exclusions that allowed NCPC to use 

the exclusion of another agency when it 

had no corresponding CATEX generated 

a number of comments pro and con. 

Federal Agencies supported the concept 

because it removed the possible need for 

them to prepare an EA if they used a 

Categorical Exclusions for their project 

but NCPC had no exclusion it could 

apply. The National Trust for Historic 

preservation and a member of the 

general public objected to the approach 

noting it was inconsistent with CEQ’s 

long standing policy to disallow such an 

approach. 

As required, NCPC submitted an 

administrative record to CEQ for all of 

its proposed CATEX, most of which are 

carry-overs from several iterations of 

prior regulations. The administrative 

record noted that the five CATEXs 

predicated upon use of another agency’s 

exclusion had not been enlarged in 

scope and the CATEX continued to be 

appropriately limited by extraordinary 

circumstances, the number of which has 

been significantly increased in the 

Regulations. 

NCPC’s Administrative Record for the 

five CATEXs at issue was initially 

accepted, but upon further reflection 

CEQ has decided to adhere to its long 

standing policy to disallow such an 

approach. Consequently, NCPC has 

removed all five of the CATEXs at issue. 

Since four of the five CATEX at issue 

have been put to little use for a 

prolonged period of time, NCPC does 

not believe its implementation of NEPA 

will be unduly burdened by this 

removal. The addition of new CATEX 

may also fill the gap. 

G. Public Participation/Public 

Knowledge of Process for Administering 

CATEX 

The Committee of 100 on the Federal 

City commented on the silence of the 

proposed regulation on the goals, 

criteria and process for meaningful 

public participation. They encouraged 

the incorporation of meaningful public 

participation policy and goals to rectify 

this deficiency. 

NCPC is fully committed to open 

government and transparency and 

believes its past actions amply 

substantiate this commitment not only 

in the NEPA and Section 106 processes 

but to all of its significant planning 

activities. Accordingly, the Regulations 

clearly articulate a policy of using the 

NEPA process to ‘‘. . . foster 

meaningful public involvement in 

NCPC’s decisions.’’ Moreover, 

throughout the Regulations, there are 

repeated opportunities for public 

participation to include in the EIS 

scoping process with an option for 

NCPC to conduct a public scoping 

process for Environmental Assessments 

as well; in the review of draft 

Environmental Assessments (EAs) (at 

NCPC’s option) and Environmental 

Impact Statements (EISs); and in the 

review of FONSIs and RODs. Moreover, 

at the suggestion of another commenter, 

documents required to be published in 

the Federal Register (Notice of Intent to 

Prepare an EIS and Notice of 

Availability of an EIS) will also be 

published on the NCPC Web site where 

parties interested in NCPC activities are 

more likely to go to stay abreast of 

current NCPC events. 

The Committee of 100 on the Federal 

City also expressed concern about the 

Regulation’s silence on the 

administrative process for the 

application of a CATEX. NCPC notes 

that among the Commission’s official 

delegations is one conferring 

administrative responsibility for NEPA 

on the Executive Director. In the future, 

owing to the recent redesign of NCPC’s 

Web site, the delegations will be listed 

on the Web site. However, NCPC notes 

this responsibility, how and when it is 

made, and how the public is notified of 

the decision is set forth in §§ 601.11(c) 

and 601.12(b) of the Regulations. 

H. CEQ Comments 

As required by CEQ Regulations, 

NCPC submitted a draft of this final rule 

to CEQ for its review and approval 

following revisions to the Regulations to 

reflect comments received during the 

public comment period. CEQ responded 

with a number of recommendations. 

Most of the recommendations were 

minor in nature and involved language 

clarifications, addition of crossreferences to relevant sections of CEQ’s 

regulations, and inclusion of additional 

language. 

The one recommendation falling 

outside the minor category related to the 

timing of the signing FONSIs and RODs 

by Federal Agency applicants and NCPC 

for Non-Federal Agency applications. 

NCPC has in the past accepted signed 

FONSIs and RODs at the time an 

application for final approval is 

submitted to the Commission. This 

practice reflects the close coordination 

between NCPC and its applicants and 

the likelihood that the Commission, 

with rare exceptions, will approve the 

final application. CEQ (and one 

commenter) pointed out that 

notwithstanding the high probability the 

signed FONSI or ROD would reflect the 

Commission’s decision, it was 

technically incorrect. The signature of a 

FONSI or ROD can only occur after the 

Commission takes a final action and 

cannot precede a future, anticipated 

decision of approval. 

In response to CEQ’s comment, the 

rule requires NCPC to sign its decision 

documents following Commission final 

approval of an application. As to 

Federal Agencies, the rule is silent as to 

when the Federal Agency may sign its 

FONSI or ROD. However, there is now 

an express provision that places the 

burden on Federal Agency applicants to 

review their Environmental Documents 

and their FONSI or ROD to determine if 

revisions are necessary if at the time of 

final approval the Commission 

disapproves an application and requires 

changes to the project. 

Following incorporation of all of 

CEQ’s recommended changes into the 

regulations, NCPC received final CEQ 

sign off on September 21, 2017. 

III. Compliance With Laws and 

Executive Orders 

Executive Orders 12866 and 13563 

By Memorandum dated October 12, 

1993 from Sally Katzen, Administrator, 

Office of Information and Regulatory 

Affairs (OIRA) to Heads of Executive 

Departments and Agencies, and 

Independent Agencies, OMB rendered 

the NCPC exempt from the requirements 

of Executive Order 12866 (See, 

Appendix A of cited Memorandum). 

Nonetheless, NCPC endeavors to adhere 

to the provisions of the Executive Order. 

Executive Order 13771 

NCPC is exempt from this Executive 

Order because it is exempt from E.O. 

12866, NCPC confirmed this fact with 

OIRA. 

Regulatory Flexibility Act 

As required by the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.), the 

NCPC certifies that the rule will not 

have a significant economic effect on a 

substantial number of small entities. 


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Small Business Regulatory Enforcement 

Fairness Act 

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

804(2), the Small Business Regulatory 

Enforcement Fairness Act. It does not 

have an annual effect on the economy 

of $100 million or more; will not cause 

a major increase in costs for individuals, 

various levels of governments or various 

regions; and does not have a significant 

adverse effect on completion, 

employment, investment, productivity, 

innovation or the competitiveness of 

U.S. enterprises with foreign 

enterprises. 

Unfunded Mandates Reform Act (2 

U.S.C. 1531 et seq.) 

A statement regarding the Unfunded 

Mandates Reform Act is not required. 

The rule neither imposes an unfunded 

mandate of more than $100 million per 

year nor imposes a significant or unique 

effect on State, local or tribal 

governments or the private sector. 

Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

The rule does not substantially and 

directly affect the relationship between 

the Federal and state governments. 

Civil Justice Reform (Executive Order 

12988) 

The General Counsel of NCPC has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of Executive 

Order 12988 3(a) and 3(b)(2). 

Paperwork Reduction Act 

The rule does not contain information 

collection requirements, and it does not 

require a submission to the Office of 

Management and Budget under the 

Paperwork Reduction Act. 

National Environmental Policy Act 

The rule is of an administrative 

nature, and its adoption does not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. NCPC’s adoption 

of the rule will have minimal or no 

effect on the environment; impose no 

significant change to existing 

environmental conditions; and will 

have no cumulative environmental 

impacts. 

Clarity of the Regulation 

Executive Order 12866, Executive 

Order 12988, and the Presidential 

Memorandum of June 1, 1998 requires 

the NCPC to write all rules in plain 

language. NCPC maintains the rule 

meets this requirement. 

Public Availability of Comments 

Be advised that personal information 

such as name, address, phone number 

electronic address, or other identifying 

personal information contained in a 

comment may be made publically 

available. Individuals may ask NCPC to 

withhold the personal information in 

their comment, but there is no guarantee 

the agency can do so. 

List of Subjects in 1 CFR Part 601 

Environmental impact statements, 

Environmental protection. 

■ For the reasons stated in the preamble, 

the National Capital Planning 

Commission adds 1 CFR part 601 to 

read as follows: 

PART 601—IMPLEMENTATION OF THE 

NATIONAL ENVIRONMENTAL POLICY 

ACT 

Subpart A—General 

Sec. 

601.1 Purpose. 

601.2 Policies. 

601.3 Definitions. 

Subpart B—Lead and Cooperating 

Agencies 

601.4 Designation of Lead Agency. 

601.5 Lead Agency obligations. 

601.6 Resolving disputes over Lead Agency 

status. 

601.7 Cooperating Agencies. 

Subpart C—NEPA Submission Schedules 

601.8 NEPA submission schedule for 

applications governed by the National 

Capital Planning Act. 

601.9 NEPA submission schedule for 

applications governed by the 

Commemorative Works Act. 

Subpart D—Initiating the NEPA Process 

601.10 Characteristics of Commission 

actions eligible for a Categorical 

Exclusion. 

601.11 Extraordinary Circumstances. 

601.12 National Capital Planning 

Commission Categorical Exclusions. 

Subpart E—Environmental Assessments 

601.13 Characteristics of Commission 

actions eligible for an Environmental 

Assessment. 

601.14 Commission actions generally 

eligible for an Environmental 

Assessment. 

601.15 Process for preparing an 

Environmental Assessment. 

601.16 Finding of No Significant Impact. 

601.17 Supplemental Environmental 

Assessments. 

Subpart F—Environmental Impact 

Statements 

601.18 Requirement for and timing of an 

Environmental Impact Statement. 

601.19 Context, intensity, and significance 

of impacts. 

601.20 Streamlining Environmental Impact 

Statements. 

601.21 Programmatic Environmental Impact 

Statements and tiering. 

601.22 Contents of an Environmental 

Impact Statement. 

601.23 The Environmental Impact 

Statement process. 

601.24 Final Environmental Impact 

Statement. 

601.25 Record of Decision. 

601.26 Supplemental Environmental 

Impact Statement. 

601.27 Legislative Environmental Impact 

Statement. 

Subpart G—Dispute Resolution 

601.28 Dispute resolution. 

601.29 [Reserved] 

Authority: 40 CFR 1507.3. 

Subpart A—General 

§ 601.1 Purpose. 

This part establishes rules that 

supplement the Council on 

Environmental Quality’s (CEQ) National 

Environmental Policy Act (NEPA) 

regulations that the National Capital 

Planning Commission (NCPC or 

Commission) and its applicants shall 

follow to ensure: 

(a) Compliance with NEPA, as 

amended (42 U.S.C. 4321 et seq.) and 

CEQ regulations for implementing the 

procedural provisions of NEPA (40 CFR 

parts 1501 through 1508). 

(b) Compliance with other laws, 

regulations, and Executive Orders 

identified by NCPC as applicable to a 

particular application. 

§ 601.2 Policies. 

Consistent with 40 CFR 1500.1 and 

1500.2, it shall be the policy of the 

NCPC to: 

(a) Comply with the procedures and 

policies of NEPA and other related laws, 

regulations, and orders applicable to 

Commission actions. 

(b) Provide applicants sufficient 

guidance to ensure plans and projects 

comply with the rules of this part and 

other laws, regulations, and orders 

applicable to Commission actions. 

(c) Integrate NEPA into its decisionmaking process at the earliest possible 

stage. 

(d) Integrate the requirements of 

NEPA and other planning and 

environmental reviews required by law 

including, without limitation, the 

National Historic Preservation Act, 54 

U.S.C. 306108 (NHPA), to ensure all 

such procedures run concurrently. 

(e) Use the NEPA process to identify 

and assess the reasonable alternatives to 

proposed actions that will avoid or 

minimize adverse effects on the quality 

of the human environment in the 

National Capital Region. 


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(f) Use all practicable means to 

protect, restore, and enhance the quality 

of the human environment including 

the built and socioeconomic 

environments and historic properties 

within the National Capital Region. 

(g) Streamline the NEPA process and 

Environmental Impact Statements (EIS) 

to the maximum extent possible. 

(h) Use the NEPA process to assure 

orderly and effective NCPC decisionmaking and to foster meaningful public 

involvement in NCPC’s decisions. 

§ 601.3 Definitions. 

For purposes of this part, the 

following definitions shall apply: 

Administrative Record means a 

compilation of all materials (written and 

electronic) that were before the agency 

at the time it made its final decision. An 

Administrative Record documents an 

agency’s decision-making process and 

the basis for the decision. 

Categorical Exclusion or CATEX 

means, as defined by 40 CFR 1508.4, a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment except under 

Extraordinary Circumstances and which 

have been found to have no such effect 

in procedures adopted by a Federal 

Agency (NCPC) in implementation of 

CEQ’s regulations and for which, 

therefore, neither an Environmental 

Assessment (EA) nor an EIS is required. 

Central Area means the geographic 

area in the District of Columbia 

comprised of the Shaw School and 

Downtown Urban Renewal Areas or 

such other area as the District of 

Columbia and NCPC shall subsequently 

jointly determine. 

Chairman means the Chairman of the 

National Capital Planning Commission 

appointed by the President, pursuant to 

40 U.S.C. 8711(c). 

Commemorative Works Act or CWA 

means the Federal law codified at 40 

U.S.C. 8901 et seq. that sets forth the 

requirements for the location and 

development of new memorials and 

monuments on land under the 

jurisdiction of the National Park Service 

(NPS) or the General Services 

Administration (GSA) in the District of 

Columbia and its Environs. 

Commission means the National 

Capital Planning Commission created by 

40 U.S.C. 8711. 

Comprehensive Plan means The 

Comprehensive Plan for the National 

Capital: Federal Elements prepared and 

adopted by the Commission pursuant to 

40 U.S.C. 8721(a). 

Cooperating Agency means, as 

defined in 40 CFR 1508.5, any Federal 

Agency other than a Lead Agency that 

has jurisdiction by law or special 

expertise with respect to a proposal (or 

reasonable alternative) for legislation or 

other major action significantly affecting 

the quality of the human environment; 

a state or local agency of similar 

qualifications; or when the effects are on 

a reservation, an Indian Tribe when 

agreed to by the Lead Agency. 

Cumulative impact means, as defined 

in 40 CFR 1508.7, the impact on the 

environment that results from the 

incremental impact of an action when 

added to other past, present, and 

reasonably foreseeable future actions 

regardless of what agency (Federal or 

Non-Federal) or person undertakes such 

other actions. Cumulative impacts can 

result from individually minor, but 

collectively significant, actions taking 

place over a period of time. 

Emergency Circumstances means a 

sudden and serious occurrence or 

situation requiring immediate attention 

to protect the lives and safety of the 

public and protect property and 

ecological resources and functions from 

imminent harm. 

Environmental Assessment or EA 

means, as defined in 40 CFR 1508.9, a 

concise document for which a Federal 

Agency is responsible that serves to 

briefly provide sufficient evidence and 

analysis for determining whether to 

prepare an EIS or a FONSI; aid an 

agency’s compliance with NEPA when 

no EIS is necessary; facilitate 

preparation of an EIS when one is 

necessary; and includes a brief 

discussion of the need for the proposal, 

alternatives as required by section 

102(2)(E) of NEPA, the environmental 

impacts of the proposed action and 

alternatives, and a listing of agencies 

and persons consulted. 

Environmental Document means, as 

set forth in 40 CFR 1508.10, an 

Environmental Assessment, and 

Environmental Impact Statement, and 

for purposes of these regulations, a 

Categorical Exclusion determination. 

Environmental Impact Statement or 

EIS means, as defined in 40 CFR 

1508.11, a detailed written statement as 

required by 42 U.S.C. 4332(2)(C). 

Environs means the territory 

surrounding the District of Columbia 

included in the National Capital Region 

pursuant to 40 U.S.C. 8702(a)(1). 

Executive Director means the 

Executive Director employed by the 

National Capital Planning Commission 

pursuant to 40 U.S.C. 8711(d). 

Executive Director’s Recommendation 

or EDR means a concise written report 

and recommendation prepared by NCPC 

staff under the direction of NCPC’s 

Executive Director regarding a proposed 

action that is transmitted to the 

Commission for its consideration. 

Extraordinary Circumstances means 

special circumstances that when present 

negate an agency’s ability to 

categorically exclude a project and 

require an agency to undertake further 

NEPA review. 

Federal Agency means the executive 

agencies of the Federal government as 

defined in 5 U.S.C. 105. 

Finding of No Significant Impact or 

FONSI means, as defined at 40 CFR 

1508.13, a document prepared by NCPC 

or a Federal Agency applicant that 

briefly presents the reasons why an 

action, not otherwise excluded (40 CFR 

1508.4), will not have a significant effect 

on the human environment and for 

which an EIS will not be prepared. It 

shall include the EA or a summary of it 

and shall note any other EAs or EISs 

related to it (40 CFR 1501.7(a)(5)). If the 

EA is included in the FONSI, the FONSI 

need not repeat any of the discussion in 

the EA but may include the EA by 

reference. 

Lead Agency means, as defined in 40 

CFR 1508.16, the agency or agencies 

preparing or having primary 

responsibility for preparing an EA or an 

EIS. 

Memorandum of Agreement or MOA 

means for purposes of implementing the 

regulations in this part, a written 

agreement entered into between a Lead, 

Co-lead, Cooperating Agency, or a NonFederal Agency to facilitate 

implementation of NEPA and 

preparation of the requisite 

environmental documentation. A MOA 

can be written at a programmatic level 

to apply to all projects involving NCPC 

and particular applicant or on a projectby-project basis. 

Mitigation means, as defined in 40 

CFR 1508.20, avoiding an impact 

altogether by not taking a certain action 

or parts of an action; minimizing 

impacts by limiting the degree or 

magnitude of the action and its 

implementation; rectifying the impact 

by repairing, rehabilitating, or restoring 

the affected environment; reducing or 

eliminating the impact over time by 

preservation and maintenance 

operations during the life of the action; 

and compensating for the impact by 

replacing or providing substitute 

resources or environments. 

Monumental Core means the general 

area encompassed by the U.S. Capitol 

grounds, the National Mall, the 

Washington Monument grounds, the 

White House grounds, the Ellipse, West 

Potomac Park, East Potomac Park, the 

Southwest Federal Center, the Federal 

Triangle area, President’s Park, the 

Northwest Rectangle, Arlington 


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Cemetery and the Pentagon area, and 

Joint Base Myer-Henderson Hall. 

National Capital Planning Act means 

the July 1952 legislative enactment, 

codified at 40 U.S.C. 8701 et seq. that 

created the present day National Capital 

Planning Commission and conferred 

authority upon it to serve as the 

planning authority for the Federal 

government in the National Capital 

Region. 

National Capital Region means, as 

defined in 40 U.S.C. 8702(2), the District 

of Columbia; Montgomery and Prince 

Georges Counties in Maryland; 

Arlington Fairfax, Loudon, and Prince 

William Counties in Virginia; and all 

cities in Maryland or Virginia in the 

geographic area bounded by the outer 

boundaries of the combined area of the 

counties listed. 

Non-Federal Agency for purposes of 

the National Environmental Policy Act 

and the regulations in this part means 

those applicants outside the definition 

of Federal Agency that prepare plans for 

or undertake projects on land within the 

National Capital Region subject to 

NCPC’s jurisdiction. Non-Federal 

Agencies include, without limitation, 

the Smithsonian Institution, the John F. 

Kennedy Center for the Performing Arts, 

the National Gallery of Art, the United 

States Institute of Peace, the 

Government of the District of Columbia, 

private parties undertaking 

development on Federal land, and the 

Maryland National Capital Parks and 

Planning Commission. In most 

instances, the Non-Federal Agency has 

legal jurisdiction over the project and 

special expertise relative to the project’s 

components. 

Notice of Availability or NOA means 

a public notice or other means of public 

communication that announces the 

availability of an EA or an EIS for public 

review. 

Notice of Intent or NOI means, as 

defined in 40 CFR 1508.22, a notice 

published in the Federal Register that 

an EIS will be prepared and considered. 

The notice shall briefly describe the 

proposed action and possible 

alternatives; describe the agency’s 

proposed Public Scoping process 

including whether, when, and where 

any Public Scoping meeting will be 

held; and state the name and address of 

a person within the agency who can 

answer questions about the proposed 

action and the EIS. For purposes of 

NCPC implementation of NEPA, NCPC 

may determine, at its sole discretion, to 

publish an NOI that an EA will be 

prepared and considered. 

Purpose and need as described in 40 

CFR 1502.13 means the underlying 

purpose and need for agency action to 

which the agency is responding in 

proposing the alternatives including the 

proposed action. 

Programmatic NEPA Review means a 

broad or high level NEPA review that 

assesses the environmental impacts of 

proposed policies, plans or programs, or 

projects for which subsequent project or 

site-specific NEPA analysis will be 

conducted. A Programmatic NEPA 

Review utilizes a tiering approach. 

Record of Decision or ROD means a 

concise public record of an agency’s 

decision in cases requiring an EIS that 

is prepared in accordance with 40 CFR 

1505.2. 

Scope means, as defined in 40 U.S.C. 

1508.25, the range of actions 

(connected, cumulative and similar); 

alternatives (no action, other reasonable 

courses of action; and Mitigation 

measures not included in the proposed 

action); and impacts (direct, indirect 

and cumulative) considered in an EIS or 

an EA. The process of defining and 

determining the scope of issues to be 

addressed in an EIS or EA with public 

involvement shall be referred to as 

Public Scoping. Internal scoping 

activities shall be referred to by the 

word scoping without capitalization. 

Submission Guidelines means the 

formally-adopted document which 

describes the application process and 

application requirements for projects 

requiring review by the Commission. 

Tiering means, as defined in 40 CFR 

1508.28, an approach where Federal 

Agency applicants, NCPC on behalf of 

Non-Federal Agency applicants, or 

NCPC for its own projects initially 

consider the broad, general impacts of a 

proposed program, plan, policy, or large 

scale project—or at the early stage of a 

phased proposal—and then conduct 

subsequent narrower, decision focused 

reviews. 

Subpart B—Lead and Cooperating 

Agencies 

§ 601.4 Designation of Lead Agency. 

(a) A Federal Agency applicant shall 

serve as the Lead Agency and prepare 

an EA or an EIS for: 

(1) An application that requires 

Commission approval; and 

(2) An application for action on a 

master plan that includes future projects 

that require Commission approval; 

provided that: 

(i) The applicant intends to submit 

individual projects covered by the 

master plan to the Commission within 

five years of the date of Commission 

action on the master plan; and 

(ii) The applicant intends to use the 

master plan EA or EIS to satisfy its 

NEPA obligation for specific projects 

referenced in the master plan. 

(b) NCPC shall serve as Lead Agency 

and prepare an EA or an EIS for: 

(1) An application submitted by a 

Non-Federal Agency that requires 

Commission approval; 

(2) An application submitted by a 

Non-Federal Agency for action on a 

master plan that includes future projects 

that require Commission approval; 

provided that: 

(i) The Non-Federal Agency applicant 

intends to submit individual projects 

covered by the master plan to the 

Commission within five years of the 

date of Commission action on the 

master plan; and 

(ii) The Non-Federal Agency 

applicant intends to use the master plan 

EA or EIS to satisfy its NEPA obligation 

for a specific project referenced in the 

master plan; and 

(3) An application for approval of 

land acquisitions undertaken pursuant 

to 40 U.S.C. 8731–8732. 

§ 601.5 Lead Agency obligations. 

(a) The obligations of a Federal 

Agency applicant designated as the 

Lead Agency in accordance with 

§ 601.4(a) shall include, without 

limitation, the following: 

(1) Act as Lead Agency as defined in 

40 CFR 1501.5 for the NEPA process. 

(2) Integrate other environmental 

reviews and other applicable regulatory 

requirements to include, without 

limitation, Section 106 of the NHPA. 

(3) Allow NCPC, to participate as a 

Co-lead or Cooperating Agency, as 

appropriate, and consult with 

Commission staff as early as possible in 

the planning process to obtain guidance 

with respect to the goals, objectives, 

standards, purpose, need, and 

alternatives for the NEPA analysis. 

(4) Invite affected Federal, state, 

regional and local agencies to 

participate as a Cooperating Agency in 

the NEPA process. 

(5) Consult with the affected agencies 

as early as possible in the planning 

process to obtain guidance on the goals, 

objectives, standards, purpose, need, 

and alternatives for the NEPA analysis. 

(6) Work with Cooperating Agencies 

and stakeholders in the following 

manner: 

(i) Keep them informed on the project 

schedule and substantive matters; and 

(ii) Allow them an opportunity to 

review and comment within reasonable 

time frames on, without limitation, 

Public Scoping notices; technical 

reports; public materials (including 

responses to comments received from 

the public); potential Mitigation 

measures; the draft EA or EIS; and the 

draft FONSI or ROD. 


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(7) Prepare the appropriate 

Environmental Document consistent 

with the applicant’s NEPA regulations, 

the requirements of this part, and CEQ 

regulations. If the Lead Agency applies 

a CATEX and NCPC as Cooperating 

Agency does not have a corresponding 

CATEX that it can apply, the Lead 

Agency shall prepare an EA to satisfy 

NCPC’s NEPA requirement. 

(8) Determine in its Environmental 

Document whether an action will have 

an adverse environmental impact or 

would limit the choice of reasonable 

alternatives under 40 CFR 1505.1(e) and 

take appropriate action to ensure that 

the objectives and procedures of NEPA 

are achieved. 

(9) Prepare, make available for public 

review, and issue a FONSI or ROD. 

(10) Ensure that the draft and final EIS 

comply with the requirements of 40 CFR 

1506.5(c) and include a disclosure 

statement executed by any contractor (or 

subcontractor) under contract to prepare 

the EIS document and that the 

disclosure appears as an appendix to the 

EIS. 

(11) Compile, maintain, and produce 

the Administrative Record. 

(12) Provide periodic reports on 

implementation of Mitigation measures 

to NCPC and other Cooperating Parties 

consistent with a schedule established 

in the Environmental Document. All 

such reports shall be posted on NCPC’s 

Web site. 

(13) For an application that has yet to 

obtain final Commission approval, reevaluate and update Environmental 

Documents that are five or more years 

old as measured from the time of their 

adoption when either or both of the 

following criteria apply: 

(i) There are substantial changes to 

the proposed action that are relevant to 

environmental concerns. 

(ii) There are significant new 

circumstances or information that are 

relevant to environmental concerns and 

have a bearing on the proposed action 

or its impacts. 

(14) Consult with NCPC on the 

outcome of the re-evaluation of its 

Environmental Document; provided that 

if NCPC disagrees with the Lead 

Agency’s conclusion on the need to 

update its Environmental Document, 

NCPC may, at its sole discretion, either 

prepare its own Environmental 

Document or decline to consider the 

application. 

(b) When NCPC serves as Lead 

Agency in accordance with § 601.4(b), 

in addition to the obligations listed in 

paragraphs (a)(1) through (14) of this 

section, NCPC shall: 

(1) Require Non-Federal Agency 

applicants other than the District of 

Columbia and the Maryland National 

Capital Parks and Planning Commission 

to enter into a MOA with NCPC. In the 

MOA, and in subsequent 

implementation thereof, the NonFederal Agency shall commit to 

providing all necessary assistance to 

facilitate and ensure NCPC’s compliance 

with its NEPA obligation. 

(2) The MOA may be prepared as a 

programmatic MOA that addresses a 

uniform approach for the treatment of 

all applications from a particular NonFederal Agency applicant or address a 

specific Non-Federal Agency 

application. The request to enter into a 

project specific MOA shall be made 

after a determination is made as to the 

inability to utilize a CATEX. 

(3) A MOA with a Non-Federal 

Agency shall specify, without 

limitation, roles and responsibilities; 

project information necessary to prepare 

the proper Environmental Document; 

project timelines and submission 

schedules; the submission of periodic 

reports on implementation of Mitigation 

measures, principal contacts and 

contact information; and a mechanism 

for resolving disputes. 

(4) Upon adoption of the MOA, NCPC 

shall publish the MOA in the Federal 

Register and post it on NCPC’s Web site. 

§ 601.6 Resolving disputes over Lead 

Agency status. 

(a) In the event of a dispute with a 

Federal Agency applicant over Co-Lead 

Agency status, the parties shall use their 

best efforts to cooperatively resolve 

disputes at the working levels of their 

respective agencies and, if necessary, by 

elevating such disputes within their 

respective agencies. 

(b) If internal resolution at higher 

agency levels proves unsuccessful, at 

NCPC’s sole discretion, one of the 

following actions shall be pursued: The 

parties shall request CEQ’s 

determination on which agency shall 

serve as Lead, or NCPC shall prepare its 

own Environmental Document, or NCPC 

shall decline to take action on the 

underlying application. 

(c) Disputes other than those relating 

to the designation of Lead Agency status 

or Cooperating Agency status as 

described in § 601.7(b), shall be 

governed by the requirements of subpart 

G of this part. 

§ 601.7 Cooperating Agencies. 

(a) When a Federal Agency applicant 

serves as the Lead Agency, NCPC shall 

act as a Cooperating Agency. As a 

Cooperating Agency, NCPC shall, 

without limitation, undertake the 

following: 

(1) Act as a Cooperating Agency as 

described in 40 CFR 1501.6. 

(2) Assist in the preparation of and 

sign a MOA with terms agreeable to 

NCPC if requested by the Lead Agency. 

At the Lead Agency’s discretion, the 

MOA may be prepared as a 

programmatic MOA that addresses a 

uniform approach for the treatment of 

all applications where NCPC serves as a 

Cooperating Agency or address a 

specific application. The request to 

enter into a project specific MOA shall 

be made after a determination is made 

by the Lead Agency on the inability to 

utilize a CATEX. 

(3) Participate in the NEPA process by 

providing comprehensive, timely 

reviews of and comments on key NEPA 

materials including, without limitation, 

Public Scoping notices; technical 

reports; documents (including responses 

to comments received from the public); 

the draft and final EA or EIS; and the 

Draft FONSI or ROD. 

(4) Supply available data, 

assessments, and other information that 

may be helpful in the preparation of the 

Environmental Document or the 

Administrative Record in a timely 

manner. 

(5) Make an independent evaluation 

of the Federal Agency applicant’s 

Environmental Document and take 

responsibility for the scope and contents 

of the EIS or EA when it is sufficient as 

required by 40 CFR 1506.5. 

(6) Prepare and, following 

Commission final approval of an 

application, sign a FONSI or ROD. 

Alternatively, if NCPC concurs with the 

contents of a Federal Agency’s FONSI or 

ROD, NCPC may co-sign the Federal 

Agency’s document following the 

Commission’s final approval of an 

application if co-signing is consistent 

with the Federal Agency’s NEPA 

regulations. 

(7) Provide documentation requested 

and needed by the Lead Agency for the 

Administrative Record. 

(b) In the event a Federal Agency 

applicant fails to allow NCPC to 

participate in a meaningful manner as a 

Cooperating Agency, the parties shall 

agree to use their best efforts to 

cooperatively resolve the issue at the 

working levels of their respective 

agencies, and, if necessary, by elevating 

the issue within their respective 

agencies. If internal resolution at higher 

agency levels is unsuccessful, the 

parties may agree to seek mediation. 

Alternatively, NCPC may prepare its 

own Environmental Document either as 

a stand-alone document or a 

supplement to the Federal Agency 

applicant’s Environmental Document or 


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take no action on the underlying 

application. 

Subpart C—NEPA Submission 

Schedules 

§ 601.8 NEPA submission schedule for 

applications governed by the National 

Capital Planning Act. 

(a) NEPA compliance requirements. 

Federal Agency applicants, and NCPC 

for non-Federal Agency applications, 

shall comply with NEPA for the 

following types of projects: 

(1) Projects requiring Commission 

approval; and 

(2) Master plans requiring 

Commission action with future projects 

requiring subsequent Commission 

approval; provided that: 

(i) The applicant intends to submit 

individual projects depicted in the 

master plan to the Commission within 

five years of the date of Commission 

action on the master plan; and 

(ii) The applicant intends to use the 

master plan EA or EIS to satisfy its 

NEPA obligation for specific projects 

referenced in the master plan. 

(b) Timing of NEPA compliance. 

When Federal Agency and Non-Federal 

Agency applicants submit projects of 

the type described in paragraph (a) of 

this section, the Federal Agency 

applicant or NCPC for a Non-Federal 

agency application shall submit the 

requisite Environmental Documentation 

timed to coincide with the 

Commission’s review stages as set forth 

in paragraphs (c) through (f) of this 

section. 

(c) Concept review. The NEPA Public 

Scoping process shall have been 

initiated by the Federal Agency 

applicant or NCPC for a Non-Federal 

Agency application before the applicant 

submits an application for concept 

review. Alternatively, if the Federal 

Agency applicant or NCPC is 

contemplating use of a CATEX, the 

initiation of the Public Scoping process 

may be deferred until the final decision 

on use of a CATEX is made. Any NEPA 

information available at the time of 

concept review shall be submitted by 

the Federal Agency applicant or NCPC 

for a Non-Federal Agency application to 

facilitate effective Commission concept 

review. 

(d) Preliminary review. A Draft 

Environmental Document shall be 

issued or published before the applicant 

submits an application for preliminary 

review. The NEPA information shall be 

provided to the Commission to facilitate 

the Commission’s preliminary review 

and the provision of meaningful 

Commission comments and direction. 

(e) Final review. (1) At the time a NonFederal Agency submits an application 

for final approval, the determination 

(FONSI or ROD) resulting from the 

Environmental Document shall be 

submitted by NCPC in a form consistent 

with the rules of this part. At the time 

a Federal Agency applicant submits an 

application to the Commission for final 

review, the Federal Agency applicant 

shall submit a determination (FONSI or 

ROD) in a form consistent with the 

applicant’s NEPA regulations. As a 

Cooperating Agency, NCPC may co-sign 

the Federal Agency’s FONSI or ROD 

following final Commission approval if 

co-signing is consistent with the Federal 

Agency’s NEPA regulations. 

Alternatively, NCPC may prepare and 

sign its own independent document in 

accordance with the requirements of 

§§ 601.16(a) or 601.25(a) through (c). 

(2) If at the time of final review, the 

Commission denies a Federal Agency 

applicant’s project and requests changes 

thereto, the Federal Agency applicant 

shall proceed in a manner consistent 

with applicable law. The Federal 

Agency applicant may pursue, among 

others, the option of revising the project 

in a manner responsive to the 

Commission’s comments. If the Federal 

Agency pursues this option, it shall 

review and consider the need for 

possible changes to its Environmental 

Document and its FONSI or ROD. Upon 

resubmission of a revised application 

for final review, the applicant shall 

submit a revised Environmental 

Document and a revised FONSI or ROD 

if in its judgement revised documents 

are necessary. If NCPC and the applicant 

disagree regarding the need for a revised 

Environmental Document and FONSI or 

ROD, the parties shall work together to 

resolve their differences. The final 

decision regarding the need for a revised 

Environmental Document and a revised 

FONSI or ROD shall be made by the 

Commission’s Executive Committee. 

(f) Deviations from the submission 

schedule for Emergency Circumstances. 

(1) This paragraph (f) applies when the 

following three conditions exist: NCPC 

is the Lead Agency; Emergency 

Circumstances exist; and an 

Extraordinary Circumstance as set forth 

in § 601.11 is present that precludes use 

of a CATEX. 

(2) When the three conditions 

described above exist, NCPC shall 

undertake one of the following actions: 

(i) When Emergency Circumstances 

render it necessary to take an action that 

requires an EA, the Executive Director 

shall prepare a concise, focused EA 

consistent with CEQ guidance. At the 

earliest opportunity, the Commission 

shall grant approval for the EA. 

(ii) Where Emergency Circumstances 

make it necessary for the Commission to 

take an action with significant 

environmental impact without 

observing the provisions of these 

regulations, NCPC shall consult with 

CEQ about alternative arrangements. 

NCPC will limit such arrangements to 

actions necessary to control the 

immediate impacts of the emergency. 

Other actions remain subject to NEPA 

review. 

§ 601.9 NEPA submission schedule for 

applications governed by the 

Commemorative Works Act. 

(a) Timing of NEPA compliance. 

When, pursuant to the Commemorative 

Works Act, the National Park Service 

(NPS) or the General Services 

Administration (GSA) submits an 

application to the Commission for 

approval of a site and design for a 

commemorative work, NPS or GSA shall 

be required to comply with NEPA and 

submit the NEPA documentation timed 

to coincide with the Commission’s 

review stages as set forth in paragraphs 

(b) through (e) of this section. 

(b) Concept site review. (1) The NEPA 

Scoping Process shall have been 

initiated by NPS or GSA before the 

appropriate agency submits an 

application to the Commission for 

concept site review. Available NEPA 

documentation for all concept sites shall 

be included in the application to 

facilitate effective Commission concept 

review. 

(2) The Commission shall provide 

comments to NPS or GSA on the 

multiple sites to assist the applicant in 

selecting a preferred site. 

(c) Concept design review for 

preferred sites. (1) The NEPA Public 

Scoping Process shall have been 

initiated before NPS or GSA submits an 

application to the Commission for 

concept design review. Available NEPA 

documentation shall be included in the 

application to facilitate effective 

Commission concept review. 

(2) The Commission shall provide 

comments to NPS or GSA on the 

preferred site(s) and the concept designs 

for each site to facilitate selection of a 

preferred site and refinement of the 

memorial design for that site. The 

Commission may establish guidelines 

for the applicant to follow in preparing 

its preliminary and final 

commemorative work design to avoid, 

minimize or mitigate environmental 

impacts including adverse effects on 

historic properties. If the Commission 

imposes guidelines to avoid, minimize 

or mitigate adverse impacts, the 

applicant shall address the guidelines in 

its Environmental Document. 

(d) Preliminary site and design review. 

(1) NPS or GSA shall have issued or 


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published its Draft Environmental 

Document for the site selection process 

and the memorial design and shall have 

initiated the requisite public comment 

period before the applicant submits an 

application for preliminary site and 

design approval. The NEPA information 

shall be provided to the Commission to 

facilitate the Commission’s preliminary 

review and the provision of meaningful 

Commission comments and directions. 

(2) The Commission shall take an 

action on the preliminary site and 

design and provide comments to the 

applicant on the preliminary design to 

assist the applicant’s preparation of a 

final design. 

(e) Final site and design review. (1) At 

the time NPS or GSA submits an 

application to the Commission for final 

site and design review, the 

determination (FONSI or ROD) resulting 

from the Environmental Document shall 

be submitted by the applicant in a form 

consistent with its NEPA regulations. As 

a Cooperating Agency, NCPC may cosign the applicant’s FONSI or ROD 

following final Commission approval if 

co-signing is consistent with the 

applicant’s NEPA regulations. 

Alternatively, NCPC may prepare and 

sign its own independent document in 

accordance with the requirements of 

§ 601.16(a) or § 601.25(a) through (c). 

(2) If at the time of final review, the 

Commission denies the NPS or GSA 

project and requests changes thereto, the 

applicant shall proceed in a manner 

consistent with applicable law. The 

Federal Agency applicant may pursue, 

among others, the option of revising the 

project in a manner responsive to the 

Commission’s comments. If the Federal 

Agency pursues this option, it shall 

review and consider the need for 

possible changes to its Environmental 

Document and its FONSI or ROD. Upon 

resubmission of a revised application 

for final review, the applicant shall 

submit a revised Environmental 

Document and a revised FONSI or ROD 

if in its judgement revised documents 

are necessary. If NCPC and the applicant 

disagree regarding the need for a revised 

Environmental Document and FONSI or 

ROD, the parties shall work together to 

resolve their differences. The final 

decision regarding the need for a revised 

Environmental Document and a revised 

FONSI or ROD shall be made by the 

Commission’s Executive Committee. 

Subpart D—Initiating the NEPA 

Process 

§ 601.10 Characteristics of Commission 

actions eligible for a Categorical Exclusion. 

(a) A Categorical Exclusion is a type 

of action that does not individually or 

cumulatively have a significant effect on 

the human environment and which has 

been found to have no such effect by 

NCPC. 

(b) Actions that generally qualify for 

application of a Categorical Exclusion 

and do not require either an EA or an 

EIS exhibit the following characteristics: 

(1) Minimal or no effect on the human 

environment; 

(2) No significant change to existing 

environmental conditions; 

(3) No significant cumulative 

environmental impacts; and 

(4) Similarity to actions previously 

assessed in an EA concluding in a 

FONSI and monitored to confirm the 

FONSI. 

§ 601.11 Extraordinary Circumstances. 

(a) Before applying a CATEX listed in 

§ 601.12, the Executive Director shall 

determine if a project or plan requires 

additional environmental review or 

analysis due to the presence of 

Extraordinary Circumstances. If any of 

the Extraordinary Circumstances listed 

in paragraphs (b)(1) through (11) of this 

section are present, the Executive 

Director shall not apply a CATEX and 

ensure that the proper Environmental 

Document (EA or EIS) shall be prepared 

and made available to the Commission 

before the Commission takes action on 

the matter. 

(b) Extraordinary Circumstances that 

negate the application of a CATEX 

include: 

(1) A reasonable likelihood of 

significant impact on public health or 

safety. 

(2) A reasonable likelihood of 

significant environmental impacts on 

sensitive resources unless the impacts 

have been or will be avoided, 

minimized, or mitigated to nonsignificant levels through another 

process to include, without limitation, 

Section 106 of the NHPA. 

Environmentally sensitive resources 

include without limitation: 

(i) Proposed federally listed, 

threatened or endangered species or 

their designated critical habitats. 

(ii) Properties listed or eligible for 

listing on the National Register of 

Historic Places. 

(iii) Areas having special designation 

or recognition based on Federal law or 

an Executive Order, to include without 

limitation, National Historic Landmarks, 

floodplains, wetlands, and National 

Parks. 

(iv) Cultural, scientific or historic 

resources. 

(3) A reasonable likelihood of effects 

on the environment that are risky, 

highly uncertain, or unique. 

(4) A reasonable likelihood of 

violating an Executive Order, or Federal, 

state or local law or requirements 

imposed for the protection of the 

environment. 

(5) A reasonable likelihood of causing 

a significant increase in surface 

transportation congestion, disruption of 

mass transit, and interference with 

pedestrian and bicycle movements. 

(6) A reasonable likelihood of 

significantly degrading air quality or 

violating air quality control standards 

under the Clean Air Act (42 U.S.C. 

7401–7671q). 

(7) A reasonable likelihood of 

significantly impacting water quality, 

public water supply systems, or state or 

local water quality control standards 

under the Clean Water Act (33 U.S.C. 

1251 et seq.) and the Safe Drinking Act 

(42 U.S.C. 300f). 

(8) A reasonable likelihood of a 

disproportionately high and adverse 

effect on low income and minority 

populations. 

(9) A reasonable likelihood of 

degrading existing unsatisfactory 

environmental conditions. 

(10) A reasonable likelihood of 

establishing a precedent for future 

action or making a decision in principle 

about future actions with potentially 

significant environmental effects. 

(11) Any other circumstance that 

makes the action sufficiently unique in 

its potential impacts on the human 

environment that further environmental 

analysis and review is appropriate. 

(c) The Executive Director shall 

include in his/her EDR, or the 

documentation of a delegated action, 

his/her decision to apply a Categorical 

Exclusion including consideration of 

possible Extraordinary Circumstances or 

not apply a Categorical Exclusion 

because of Extraordinary Circumstances. 

§ 601.12 National Capital Planning 

Commission Categorical Exclusions. 

(a) Commission actions that may be 

categorically excluded and normally do 

not require either an EA or an EIS are 

listed in paragraphs (a)(1) through (13) 

of this section. An action not 

specifically included in the list is not 

eligible for a Categorical Exclusion even 

if it appears to meet the general criteria 

listed in § 601.10(b). 

(1) Approval of the installation or 

restoration of onsite primary or 

secondary electrical distribution 

systems including minor solar panel 

arrays. 

(2) Approval of the installation or 

restoration of minor site elements, such 

as but not limited to identification signs, 

sidewalks, patios, fences, curbs, 

retaining walls, landscaping, and trail or 

stream improvements. Additional 

features include water distribution lines 


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and sewer lines which involve work 

that is essentially replacement in kind. 

(3) Approval of the installation or 

restoration of minor building elements, 

such as, but not limited to windows, 

doors, roofs, building signs, and rooftop 

equipment and green roofs. 

(4) Adoption of a Federal Element of 

the Comprehensive Plan or amendment 

thereto or broad based policy or 

feasibility plans prepared and adopted 

by the Commission in response to the 

Comprehensive Plan. 

(5) Approval of the installation of 

communication antennae on Federal 

buildings and co-location of 

communication antennae on Federal 

property consistent with GSA Bulletin 

FMR D–242, Placement of Commercial 

Antennas on Federal Property. 

(6) Approval of Federal and District 

government agency proposals for new 

construction, building expansion, or 

improvements to existing facilities, 

when all of the following apply: 

(i) The new structure and proposed 

use are in compliance with local 

planning and zoning and any applicable 

District of Columbia, state, or Federal 

requirements. 

(ii) The site and the scale of 

construction are consistent with those of 

existing adjacent or nearby buildings. 

(iii) The proposed use will not 

substantially increase the number of 

motor vehicles in the vicinity of the 

facility. 

(iv) There is little to no evidence of 

unresolved resource conflicts or 

community controversy related to 

environmental concerns or other 

environmental issues. 

(7) Approval of transfers of 

jurisdiction pursuant to 40 U.S.C. 8124 

that are not anticipated to result in 

changes in land-use and that have no 

potential for environmental impact. 

(8) Approval of a minor modification 

to a General Development Plan 

applicable to lands acquired pursuant to 

the Capper-Cramton Act, 46 Stat. 482 

(1930), as amended, when nonsignificant environmental impacts are 

anticipated. 

(9) Reorganization of NCPC. 

(10) Personnel actions, including, but 

not limited to, investigations; 

performance reviews; award of personal 

service contracts, promotions and 

awards; reductions in force, 

reassignments and relocations; and 

employee supervision and training. 

(11) Legal activities including, but not 

limited to, legal advice and opinions; 

litigation or other methods of dispute 

resolution; and procurement of outside 

legal services. 

(12) Procurement of goods and 

services, transactions, and other types of 

activities related to the routine and 

continuing administration, 

management, maintenance and 

operations of the Commission or its 

facilities. 

(13) Adoption and issuance of rules, 

directives, official policies, guidelines, 

and publications or recommendations of 

an educational, financial, informational, 

legal, technical or procedural nature. 

(b) The Executive Director shall 

include in his/her EDR, or the 

documentation of a delegated action, 

his/her decision to apply a Categorical 

Exclusion and the rationale for this 

decision. 

Subpart E—Environmental 

Assessments 

§ 601.13 Characteristics of Commission 

actions eligible for an Environmental 

Assessment. 

(a) An EA is a concise document with 

sufficient information and analysis to 

enable the Executive Director to 

determine whether to issue a FONSI or 

prepare an EIS. 

(b) Commission actions that generally 

require an EA exhibit the following 

characteristics: 

(1) Minor but likely insignificant 

degradation of environmental quality; 

(2) Minor but likely insignificant 

cumulative impact on environmental 

quality; and 

(3) Minor but likely insignificant 

impact on protected resources. 

§ 601.14 Commission actions generally 

eligible for an Environmental Assessment. 

Commission actions that typically 

require preparation of an EA include 

without limitation: 

(a) Approval of final plans for Federal 

public buildings in the District of 

Columbia, and the provisions for open 

space in and around the same, pursuant 

to 40 U.S.C. 8722(d) and D.C. Code 2– 

1004(c). 

(b) Approval of final plans for District 

of Columbia public buildings and the 

open space around them within the 

Central Area pursuant to 40 U.S.C. 

8722(e) and D.C. Code 2–1004(d). 

(c) Recommendations to a Federal or 

District of Columbia agency on any 

master plan or master plan modification 

submitted to the Commission that 

include proposed future projects that 

require Commission approval pursuant 

to 40 U.S.C. 8722(d)–(e) and D.C. Code 

2–1004(c)–(d) within a five-year 

timeframe. 

(d) Approval of a final site and design 

for a commemorative work authorized 

under the Commemorative Works Act 

pursuant to 40 U.S.C. 8905. 

(e) Approval of transfers of 

jurisdiction over properties within the 

District of Columbia owned by the 

United States or the District among or 

between Federal and District 

authorities, pursuant to 40 U.S.C. 8124, 

unless such transfers met the criteria of 

§ 601.12(a)(7). 

§ 601.15 Process for preparing an 

Environmental Assessment. 

An EA prepared by NCPC as the Lead 

Agency for a project requiring 

Commission approval shall comply with 

the following requirements: 

(a) The EA shall include, without 

limitation, a brief discussion of the 

proposed action; the purpose and need 

for the proposed action; the 

environmental impacts of the proposed 

action; the environmental impacts of the 

alternatives considered; Mitigation 

measures, if necessary; and a list of 

agencies and persons consulted in 

preparation of the assessment. 

(b) The NCPC shall involve to the 

extent practicable applicants; Federal 

and District of Columbia agencies; the 

public; and stakeholders in the 

preparation of an EA. 

(c) The NCPC, at the sole discretion of 

the Executive Director, may undertake 

Public Scoping for an action requiring 

an EA. The Public Scoping shall 

generally commence after issuance of a 

public notice in a media source with 

widespread circulation and the NCPC 

Web site of NCPC’s intent to prepare an 

EA. The notice shall include the date, 

time and location of the Public Scoping 

meeting. 

(d) The NCPC may solicit public 

review and comment of a Draft EA. The 

public comment period generally shall 

be thirty (30) calendar days. The public 

comment period shall begin when the 

Executive Director announces the 

availability of the Draft EA on the NCPC 

Web site (www.ncpc.gov). The NCPC, at 

its sole discretion, may decline to 

circulate a draft EA for noncontroversial projects. 

§ 601.16 Finding of No Significant Impact. 

(a) If NCPC is the Lead Agency and 

the final EA supports a FONSI, NCPC 

shall prepare and execute a FONSI. The 

FONSI shall be prepared following 

closure of the discretionary public 

comment period on a Draft EA, or if no 

public comment period is deemed 

necessary, at the conclusion of the 

preparation of an EA. The FONSI shall 

briefly state the reasons why the 

proposed action will not have a 

significant effect on the environment 

and include the EA or a summary 

thereof, any Mitigation commitments, 

and a schedule for implementing the 

Mitigation commitments. The FONSI 

shall be signed following the 


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Commission final approval of the 

applicant’s project. 

(b) If NCPC is not the Lead Agency, 

it shall evaluate the adequacy of the 

Lead Agency’s FONSI. If NCPC 

determines the FONSI to be adequate, 

NCPC shall proceed as follows. If 

consistent with the Federal Agency’s 

NEPA regulations, NCPC may co-sign 

the Lead Agency’s FONSI following the 

Commission final approval of the 

application. Alternatively, NCPC may 

prepare and execute its own FONSI 

consistent with the requirements of 

paragraph (a) of this section and sign the 

FONSI following the Commission’s final 

approval of the project. 

(c) In certain limited circumstances 

described in 40 CFR 1501.4(e)(2)(i) and 

(ii), a FONSI prepared by NCPC shall be 

available for public review for thirty 

(30) days before NCPC makes it final 

determination. NCPC shall also publish 

all FONSIs on its Web site seven (7) 

calendar days before the Commission 

takes action on the underlying 

application. 

(d) If the Commission determines a 

Lead Agency’s EA does not support a 

FONSI, either the Lead Agency shall 

prepare an EIS, or the Commission shall 

not approve or consider further the 

underlying application. 

§ 601.17 Supplemental Environmental 

Assessments. 

(a) The NCPC shall prepare a 

supplemental EA if five or more years 

have elapsed since adoption of the EA 

and: 

(1) There are substantial changes to 

the proposed action that are relevant to 

environmental concerns; or 

(2) There are significant new 

circumstances or information that are 

relevant to environmental concerns and 

have a bearing on the proposed action 

or its impacts. 

(b) The NCPC may supplement a Draft 

or Final EA at any time to further the 

purposes of NEPA. 

(c) The NCPC shall prepare, circulate, 

and file a supplement to a Draft or Final 

EA, and adopt a FONSI in accordance 

with the requirements of §§ 601.15 and 

601.16. If NCPC is not the Lead Agency, 

it shall proceed as outlined in 

§ 601.16(b) and (c). 

Subpart F—Environmental Impact 

Statements 

§ 601.18 Requirement for and timing of an 

Environmental Impact Statement. 

Prior to the Commission’s approval of 

a major Federal action significantly 

affecting the quality of the human 

environment, the Executive Director 

shall prepare an EIS for a Non-Federal 

Agency application. 

§ 601.19 Context, intensity, and 

significance of impacts. 

(a) As required by 40 CFR 1508.27(a) 

and (b), NCPC’s determination of 

whether an EIS is required and whether 

impacts are significant shall be made 

with consideration to the context and 

intensity of the impacts associated with 

a proposed action. 

(b) The significance of an action is 

determined in the context of its effects 

on society as a whole, the National 

Capital Region and its Environs, the 

particular interests affected, and the 

specific locality or area within which 

the proposed action is located. The 

context will vary from project to project 

and will be based on the type, attributes, 

and characteristics of a particular 

proposal. 

(c) The significance of an action is 

also determined based on the severity of 

impacts imposed by the proposal. 

Severity shall be determined based on 

an evaluation of a proposal in the 

manner outlined in 40 CFR 

1508.27(b)(1) through (10). The 

evaluation shall also be informed by the 

relevant policies of ‘‘The 

Comprehensive Plan for the National 

Capital: Federal Elements’’ and other 

applicable Commission plans and 

programs. Proposed actions that conflict 

with or delay achievement of the goals 

and objectives of Commission plans and 

programs are generally more likely to be 

found to have significant impacts than 

proposals that are consistent with 

Commission plans and programs. 

(d) Proposed actions shall also be 

deemed significant and require an EIS if 

they exhibit at least one of the following 

characteristics: 

(1) The proposed action results in a 

substantial change to the Monumental 

Core. 

(2) The proposed action causes 

substantial alteration to the important 

historical, cultural, and natural features 

of the National Capital and its Environs. 

(3) The proposed action is likely to be 

controversial because of its impacts on 

the human environment. 

§ 601.20 Streamlining Environmental 

Impact Statements. 

The NCPC as Lead Agency shall use 

all available techniques to minimize the 

length of an EIS. Such techniques 

include, without limitation, drafting an 

EIS in clear, concise language; preparing 

an analytic vs. encyclopedic EIS; 

reducing emphasis on background 

information; using the scoping process 

to emphasize significant issues and deemphasize non-significant issues; 

incorporating relevant information by 

reference; using a programmatic EIS and 

tiering to eliminate duplication in 

subsequent EISs; and following the 

format guidelines of § 601.22. 

§ 601.21 Programmatic Environmental 

Impact Statements and tiering. 

(a) The NCPC shall prepare a 

programmatic Environmental Document 

(Programmatic EA or PEA or 

Programmatic EIS or PEIS) to assess the 

impacts of proposed projects and plans 

when there is uncertainty regarding the 

timing, location and environmental 

impacts of subsequent implementing 

actions. At the time NCPC undertakes a 

site or project specific action within the 

parameters of the PEA or PEIS, NCPC 

shall tier its Environmental Document 

by summarizing information in the PEIS 

or PEA, as applicable, and concentrate 

on the issues applicable to the specific 

action. 

(b) A PEIS or PEA prepared by NCPC 

shall be governed by the CEQ 

regulations and the rules of this part. 

§ 601.22 Contents of an Environmental 

Impact Statement. 

(a) When NCPC serves as Lead 

Agency for an EIS, the following 

information shall be included in the 

EIS: 

(1) A cover sheet. The cover sheet 

shall be one-page and include a list of 

responsible and Cooperating Agencies; 

the title of the proposed action that is 

the subject of the EIS; the name, 

address, and telephone number of the 

NCPC point of contact; the designation 

as to whether the statement is draft, 

final, or draft or final supplement; a one 

paragraph abstract of the EIS; and the 

date by which comments must be 

received. 

(2) A summary. The summary shall 

accurately summarize the information 

presented in the EIS. The summary shall 

focus on the main conclusions, areas of 

controversy, and the issues to be 

resolved. 

(3) A table of contents. The table of 

contents shall allow a reader to quickly 

locate subject matter in the EIS—either 

by topic area and/or alternatives 

analyzed. 

(4) The purpose and need. A 

statement of the purpose of and need for 

the action briefly stating the underlying 

purpose and need to which the agency 

is responding. 

(5) The identification of alternatives 

including the proposed action. This 

section shall provide a brief description 

and supporting documentation for all 

alternatives including the proposed 

action; the no action alternative; all 

reasonable alternatives including those 

not within the jurisdiction of the 

agency; alternatives considered but 

eliminated and the reason for their 


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elimination; the agency’s preferred 

alternative, if one exists; the 

environmentally preferred alternative; 

and Mitigation measures not already 

included in the proposed action. 

(6) The identification of the affected 

environment. This section shall provide 

a succinct description of the 

environment to be affected by the 

proposed action and the alternatives 

considered. This section shall include, 

if applicable, other activities in the area 

affected by or related to the proposed 

action. 

(7) The identification of 

environmental consequences. This 

section shall focus on the environmental 

impacts of the alternatives including the 

proposed action, any adverse 

environmental effects which cannot be 

avoided should the proposal be 

implemented, the relationship between 

short-term uses of the environment and 

the maintenance and enhancement of 

long-term productivity, and any 

irreversible commitments of resources 

which would be involved if the 

proposal is implemented. The impacts 

shall be discussed in terms of direct, 

indirect and cumulative effects and 

their significance, as well as any 

appropriate means to mitigate adverse 

impacts. The discussion shall also 

include issues and impact topics 

considered but dismissed to reveal nonimpacted resources. Resource areas and 

issues requiring consideration shall 

include those identified in the scoping 

process, and, without limitation, the 

following: 

(i) Possible conflicts between the 

proposed action and the land use plans, 

policies, or controls (local, state, or 

Indian tribe) for the area concerned. 

(ii) Natural and biological resources 

including topography, hydrology, soils, 

flora, fauna, floodplains, wetlands, and 

endangered species. 

(iii) Air quality. 

(iv) Noise. 

(v) Water resources including 

wastewater treatment and storm water 

management. 

(vi) Utilities including energy 

requirements and conservation. 

(vii) Solid waste and hazardous waste 

generation/removal. 

(viii) Community facilities. 

(ix) Housing. 

(x) Transportation network. 

(xi) Socio-cultural and economic 

environments. 

(xii) Environmental Justice and the 

requirements of Executive Order 12898 

(Federal Actions to Address 

Environmental Justice in Minority 

Populations). 

(xiii) Urban quality and design of the 

built environment including visual 

resources and aesthetics. 

(xiv) Historic and cultural resources 

to include documentation of the results 

of the Section 106 Consultation process. 

(xv) Public health and safety. 

(8) A list of preparers. This list shall 

include all pertinent organizations, 

agencies, individuals, and government 

representatives primarily responsible for 

the preparation of the EIS and their 

qualifications. 

(9) An index. The index shall be 

structured to reasonably assist the 

reader of the Draft or Final EIS in 

identifying and locating major topic 

areas or elements of the EIS information. 

The level of detail of the index shall 

provide sufficient focus on areas of 

interest to any reader not just the most 

important topics. 

(10) An appendix. The appendix shall 

consist of material prepared in 

connection with an EIS (as distinct from 

material which is incorporated by 

reference) and material which 

substantiates any analysis fundamental 

to the EIS. The material in the appendix 

shall be analytical and relevant to the 

decision to be made. The appendix shall 

be posted on NCPC’s Web site. 

(b) [Reserved] 

§ 601.23 The Environmental Impact 

Statement process. 

(a) The NCPC shall involve the 

applicant, Federal and District of 

Columbia agencies, members of the 

public and stakeholders in the 

preparation of an EIS. Public 

participation shall be required as part of 

the Public Scoping process and review 

of the Draft EIS. The NCPC shall also 

consult with agencies having 

jurisdiction by law or expertise. 

Agencies with ‘‘jurisdiction by law’’ are 

those with ultimate jurisdiction over a 

project and whose assistance may be 

required on certain issues and those 

with other kinds of regulatory or 

advisory authority with respect to the 

action or its effects on particular 

environmental resources. 

(b) To determine the scope of an EIS 

through a Public Scoping process, NCPC 

shall proceed as follows: 

(1) Disseminate a NOI in accordance 

with 40 CFR 1501.7 and 1506.6. 

(2) Publish a NOI in the Federal 

Register and on NCPC’s Web site which 

shall begin the Public Scoping process. 

(3) Include the date, time, and 

location of a Public Scoping meeting in 

the NOI. The public meeting shall be 

announced at least thirty (30) calendar 

days in advance of its scheduled date. 

(4) Hold Public Scoping meeting(s) in 

facilities that are accessible to the 

disabled; include translators if 

requested in advance; include signers or 

interpreters for the hearing impaired if 

requested in advance; and allow special 

arrangements for consultation with 

affected Indian tribes or other Native 

American groups who have 

environmental concerns that cannot be 

shared in a public forum. 

(5) Consider all comments received 

during the announced comment period 

regarding the analysis of alternatives, 

the affected environment, and 

identification of potential impacts. 

(6) Apply the provisions of this 

section to a Supplemental EIS if the 

Executive Director of NCPC, in his/her 

sole discretion, determines a Public 

Scoping process is required for a 

Supplemental EIS. 

(c) A Draft EIS shall be available to 

the public for their review and 

comment, for a period of generally fortyfive (45) calendar days. The public 

comment period shall begin when NCPC 

shares a copy of the Draft EIS with EPA 

in anticipation of EPA’s publication of 

an NOA. The NCPC shall hold at least 

one public meeting during the public 

comment period on a Draft EIS. The 

public meeting shall be announced at 

least thirty (30) calendar days in 

advance of its scheduled occurrence. 

The announcement shall identify the 

subject of the Draft EIS and include the 

public meeting date, time, and location. 

§ 601.24 Final Environmental Impact 

Statement. 

(a) The NCPC shall prepare a Final 

EIS following the public comment 

period and the public meeting(s) on the 

Draft EIS. The Final EIS shall respond 

to oral and written comments received 

during the Draft EIS public comment 

period. 

(b) The Commission shall take final 

action on an application following a 

thirty (30) day Commission-sponsored 

review period of the Final EIS. The 

thirty (30) day period shall start when 

the EPA publishes a NOA for the Final 

EIS in the Federal Register. 

§ 601.25 Record of Decision. 

(a) If NCPC is the Lead Agency and 

decides to recommend approval of a 

proposed action covered by an EIS, it 

shall prepare and sign a ROD stating the 

Commission’s decision and any 

Mitigation measures required by the 

Commission. 

(1) The ROD shall include among 

others: 

(i) A statement of the decision. 

(ii) The identification of alternatives 

considered in reaching a decision 

specifying the alternatives that were 

considered to be environmentally 


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preferable. The ROD shall discuss 

preferences among alternatives based on 

relevant factors including economic and 

technical planning considerations and 

the Commission’s statutory mission. 

The ROD shall identify those factors 

balanced to reach a decision and the 

influence of various factors on the 

decision. 

(iii) A statement as to whether all 

practicable means to avoid or minimize 

environmental harm from the 

alternative selected has been adopted, 

and if not, why they are not. 

(iv) A monitoring and enforcement 

program that summarizes Mitigation 

measures. 

(v) Date of issuance. 

(vi) Signature of the Chairman. 

(2) The contents of the draft ROD 

proposed for Commission adoption 

shall be summarized in the EDR and a 

full version of the draft document shall 

be included as an Appendix to the EDR. 

The Draft ROD, independently of the 

EDR, shall be made available to the 

public for review fourteen (14) calendar 

days prior to the Commission’s 

consideration of the proposed action for 

which the EIS was prepared. 

(3) The Commission shall arrive at its 

decision about the proposed action for 

which NCPC serves as the Lead Agency 

and its environmental effects in a public 

meeting of record as identified by the 

Commission’s monthly agenda. 

(b) If NCPC is not the Lead Agency, 

following the Commission final 

approval of a project to which a ROD 

pertains, and consistent with the 

Federal Agency’s NEPA regulations, 

NCPC may take one of the following 

actions. It may either co-sign the Lead 

Agency’s ROD following Commission 

approval of the project if NCPC agrees 

with its contents and conclusions or it 

shall prepare, sign, and sign and adopt 

its own ROD in accordance with the 

requirements of paragraphs (a)(1) 

through (3) of this section. 

(c) If the Commission determines a 

Lead Agency’s EIS fails to support a 

ROD, the Lead Agency shall revise its 

EIS, or, alternatively, the Commission 

shall not approve or give any further 

consideration to underlying application. 

§ 601.26 Supplemental Environmental 

Impact Statement. 

(a) The NCPC shall prepare a 

supplemental EIS if five or more years 

has elapsed since adoption of the EIS 

and: 

(1) There are substantial changes to 

the proposed action that are relevant to 

environmental concerns; or 

(2) There are significant new 

circumstances or information that are 

relevant to environmental concerns and 

have a bearing on the proposed action 

or its impacts. 

(b) The NCPC may supplement a Draft 

or Final EIS at any time, to further the 

purposes of NEPA. 

(c) The NCPC shall prepare, circulate, 

and file a supplement to a Draft or Final 

EIS in in accordance with the 

requirements of §§ 601.22 through 

601.24 except that Public Scoping is 

optional for a supplemental EIS. 

(d) The NCPC shall prepare a ROD for 

a Supplemental EIS. The ROD’s 

contents, the procedure for public 

review, and the manner in which it 

shall be adopted shall be as set forth in 

§ 601.25. 

§ 601.27 Legislative Environmental Impact 

Statement. 

(a) Consistent with 40 CFR1506.8, the 

Executive Director shall prepare an EIS 

for draft legislation initiated by NCPC 

for submission to Congress. The EIS for 

the proposed legislation shall be 

included as part of the formal 

transmittal of NCPC’s legislative 

proposal to Congress. 

(b) The requirements of this section 

shall not apply to legislation Congress 

directs NCPC to prepare. 

Subpart G—Dispute Resolution 

§ 601.28 Dispute resolution. 

Any disputes arising under this part, 

shall be resolved, unless otherwise 

otherwise provided by law or regulation 

by the parties through interagency, good 

faith negotiations starting at the working 

levels of each agency, and if necessary, 

by elevating such disputes within the 

respective Agencies. If resolution at 

higher levels is unsuccessful, the parties 

may participate in mediation. 

§ 601.29 [Reserved] 

Dated: September 21, 2017. 

Anne R. Schuyler, 

General Counsel. 

[FR Doc. 2017–20614 Filed 9–28–17; 8:45 am] 

BILLING CODE P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 38 

RIN 3038–AE64 

Commission Delegated Authority 

Provisions for Designated Contract 

Markets’ System Safeguards 

Requirements 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commodity Futures 

Trading Commission (‘‘CFTC’’ or 

‘‘Commission’’) is adopting final rules to 

establish a new delegation of authority 

to Commission staff under the 

Commission’s system safeguards rules 

to notify each designated contract 

market (‘‘DCM’’) of its percentage of the 

total annual trading volume among all 

DCMs regulated by the Commission for 

purposes of whether it is a covered DCM 

under the system safeguards rules. 

DATES: This rule is effective September 

29, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Rachel Berdansky, Deputy Director, 

202–418–5429 or rberdansky@cftc.gov; 

David Steinberg, Associate Director, 

202–418–5102 or dsteinberg@cftc.gov; 

David Taylor, Associate Director, 202– 

418–5488 or dtaylor@cftc.gov, Division 

of Market Oversight, Commodity 

Futures Trading Commission, Three 

Lafayette Centre, 1151 21st Street NW., 

Washington, DC 20581. 

SUPPLEMENTARY INFORMATION: 

I. Delegation of Authority—Commission 

Regulation § 38.1051 

Section 38.1051 of the Commission’s 

regulations, 17 CFR 38.1051, governs 

the system safeguards requirements for 

DCMs. Pursuant to § 38.1051(n), DCMs 

are required to provide the Commission 

with their annual total trading volume 

by January 31 each calendar year. 

Section 38.1051(n)(2) also requires the 

Commission to provide each DCM with 

their percentage of the combined annual 

total trading volume among all DCMs 

regulated by the Commission by 

February 28 each calendar year. This 

annual Commission notification informs 

each DCM whether it is a ‘‘covered 

DCM’’ as that term is defined in 

§ 38.1051(h)(1). A covered DCM is a 

DCM whose annual trading volume in a 

given year is five percent or more of the 

combined annual trading volume of all 

DCMs regulated by the Commission. 

Covered DCMs are required to comply 

with enhanced requirements with 

respect to the frequency of cybersecurity 

testing and the use of independent 

contractors. The Commission is 

amending § 38.1051 by adding 

paragraph (n)(3) to delegate authority to 

the Director of the Division of Market 

Oversight and designated staff to notify 

DCMs of their annual trading volume 

percentage. 

II. Effective Date 

As the revisions to the Commission’s 

regulations in this rulemaking will not 

cause any party to undertake efforts to 

comply with the regulations as revised, 

the Commission has determined to 


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