(a) Potential environmental effects of agency actions shall begin to
be examined at the time a topic for potential action is submitted to the
agency staff for research, proposal development, or other consideration.
During this stage the agency shall determine whether the type of action
which may be proposed may be categorically excluded from NEPA
environmental analysis requirements pursuant to Sec. 11.10. If the type
of action being considered is not categorically excluded, or is an
extraordinary case of a normally excluded action which may have
significant environmental impacts, development of the information needed
to make an environmental assessment shall begin. Actions described in
Sec. 11.10(b) shall be submitted to the Assistant Secretary for
Administration and Management at this point, pursuant to applicable
Departmental procedures, for appropriate review, including a
determination with respect to whether or not the action is located in or
near a floodplain or wetlands area in connection with the requirements
of Executive Orders 11988 and 11990.
(b) When information gathered during the early stages of proposal
development indicates that preparation of an environmental impact
statement will be required, the agency shall begin
preparation of such a document by initiating the scoping process in
accordance with 40 CFR 1501.7. However, if the information is not
clearly indicative of the need for preparation of an environmental
impact statement, an environmental assessment shall be prepared.
(c) Agencies are encouraged, in developing environmental
assessments, to explore all factors which it may become necessary to
examine should it be determined that preparation of an environmental
impact statement is necessary, even though some of those factors, such
as economic and social effects, ``are not intended by themselves to
require preparation of an environmental impact statement'' (40 CFR
1508.14). Thus in making environmental assessments of real property
actions described in Sec. 11.10(b), agencies are encouraged to consider
the following factors, among others:
(1) The nature and degree of any former use of a proposed facility
and the number of individuals the facility formerly served, as compared
with its use and population to be served under the new proposal;
(2) The population of the area (numbers, density and makeup);
(3) Community facilities and services, taking into consideration
capacity and present and former use, including: Health services
(hospitals, physicians), business and community development policy,
recreational facilities (parks, theaters), fire and police protection,
schools, energy resources, waste disposal, water, traffic and roadway
systems, sewage systems, communications, and public transportation;
(4) The proximity of the facility to residential areas;
(5) The potential impact on the quality of drinking water, air
quality, noise levels, designated scenic areas, land use, soil quality
(including drainage or erosion problems), buildings valued for their
design or which are otherwise locally significant, the listing or
eligibility for listing of a site in the National Register for Historic
places, consistent with the requirements of 20 CFR 684.24a where
applicable, neighborhood character, and health and safety of residents;
(6) The potential impact on natural systems and resources including
rivers and streams, forests, wetlands, floodplains, wilderness areas or
places, and species designated for preservation, including species of
plants and animals and their critical habitats as identified in
regulations published by the Secretary of the Interior (50 CFR chapter
I, part 17), and by the Secretary of Commerce (50 CFR chapter II, parts
217, 222.23, 223, and 227.4); and
(7) Other considerations appropriate in light of the nature and size
of the project.
(d) If an agency determines, on the basis of an environmental
assessment, that preparation of an environmental impact statement is not
required, notice of a finding of no significant impact and the
availability of the environmental assessment shall be prepared and
published in the Federal Register. In the case of proposed rulemaking,
the notice of a finding of no significant impact may be published in the
Federal Register at any time prior to the publication of the proposed
action, or it may be included in the Federal Register notice of proposed
rulemaking. Issuance of a finding of no significant impact at the
proposal stage of rulemaking shall not foreclose further consideration
of environmental issues during the rulemaking proceedings. Therefore the
Department of Labor notes that, consistent with 40 CFR 1500.3, the
finding shall not be considered final until promulgation of the rule
involved (the action affecting the environment).
(1) If it is determined that preparation of an environmental impact
statement is not required for an action, but that action is one which
would normally require the preparation of an environmental impact
statement, an action closely similar to one which would normally require
the preparation of an environmental impact statement, or an action
without precedent in this regard, the agency shall make a preliminary
finding of no significant impact available for public review and
comment. In accordance with 40 CFR 1501.4(e)(2), this finding shall be
made available for at least 30 days before a final determination is made
as to whether an environmental impact statement will be prepared, and
before any public record may be closed and
the proposed action may become effective.
(2) Although not required by 40 CFR 1501.4(e)(2), an agency may use
the procedure described in Sec. 11.11(d)(1) whenever the agency
determines it to be appropriate.
(e) If it is determined on the basis of an environmental assessment,
prepared in connection with an action described in Sec. 11.10(b), that
preparation of an environmental impact statement is required, or that
public review is required in connection with actions in floodplains or
wetlands that do not require environmental impact statements under E.O.
11988 or E.O. 11990, the agency shall consider altering the proposed
action or changing the site of the proposed project, and shall proceed
with preparation of an environmental impact statement or appropriate
public review actions only after obtaining written authorization from
the Assistant Secretary for Administration and Management.
(f) Filing of any draft environmental impact statement with the
Environmental Protection Agency (EPA), pursuant to 40 CFR 1506.9, and
circulation to the public, will ordinarily coincide with publication of
the proposed agency action, which is the subject of that document, in
the Federal Register. In any event, the statement will be made available
for public comment for at least a 45-day period.
(g) The final decision on the proposed action shall be made not
earlier than 90 days following publication of EPA's notice of the filing
of the draft environmental impact statement, and, except as provided
below, not earlier than 30 days following publication of EPA's notice of
the filing of the final environmental impact statement.
(1) In accordance with 40 CFR 1506.10, an agency engaged in
rulemaking under the Administrative Procedure Act or other statute, for
the purpose of protecting the public health or safety, may waive the 30-
day time period noted above and publish a decision on a final rule
simultaneously with publication of the notice of the availability of the
final environmental impact statement. Therefore, Departmental agencies
(such as OSHA and MSHA) meeting these requirements, may file and
circulate the final environmental impact statement at the same time a
notice of decision is being published, provided that the final rule or
action may not become effective for at least 30 days from the date of
publication of the EPA's notice of filing of the final environmental
impact statement.
(2) If a supplement to a final environmental impact statement is
prepared, it shall be incorporated into the rulemaking record. If the
supplement is prepared following the close of the rulemaking record and
is based on, or introduces, new data or major new alternatives or
analyses, the rulemaking record will be reopened for at least 30 days to
receive public comments. The final action may not become effective for
at least 30 days following EPA publication of the filing of the
supplemental statement.
(h) In accordance with 40 CFR 1505.2, when an agency prepares a
final environmental impact statement, the agency shall prepare a concise
public record of decision detailing what the decision was, what
alternatives were considered (specifying the environmentally preferable
alternative), how those considerations entered into the decision, and
whether all practicable means to avoid or minimize environmental harm
from the alternative selected have been adopted, and if not, the reason
they were not. This record may be contained in, or integrated with, the
preamble to the Federal Register notice of final action or in any other
public document considered appropriate by the agency.
