[Federal Register Volume 77, Number 165 (Friday, August 24, 2012)]
[Notices]
[Pages 51530-51532]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20914]


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ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL9004-7]


Amended Environmental Impact Statement Filing System Guidance for 
Implementing 40 CFR 1506.9 and 1506.10 of the Council on Environmental 
Quality's Regulations Implementing the National Environmental Policy 
Act

1. Introduction

    On October 7, 1977, the Council of Environmental Quality (CEQ) and 
the Environmental Protection Agency (EPA) signed a Memorandum of 
Agreement (MOA) that allocated the responsibilities of the two agencies 
for assuring the government-wide implementation of the National 
Environmental Policy Act of 1969 (NEPA). Specifically, the MOA 
transferred to EPA the administrative aspects of the environmental 
impact statement (ElS) filing process. Within EPA, the Office of 
Federal Activities has been designated the official recipient in EPA of 
all EISs. These responsibilities have been codified in CEQ's NEPA 
Implementing Regulations (40 CFR Parts 1500-1508), and are totally 
separate from the substantive EPA reviews performed pursuant to both 
NEPA and Section 309 of the Clean Air Act.
    Under 40 CFR 1506.9, EPA can issue guidelines to implement its EIS 
filing responsibilities. The purpose of the EPA Filing System 
Guidelines is to provide guidance to Federal agencies on filing EISs, 
including draft, final, and supplemental EISs. Information is provided 
on: (1) How to file EISs; (2) the steps to follow when a Federal agency 
is adopting an EIS, or when an EIS is withdrawn, delayed or reopened; 
(3) public review periods; (4) issuance of notices of availability in 
the Federal Register; and (5) retention of filed EISs.
    The guidelines published today update the previous guidelines, 
which were first published in the Federal Register on March 7, 1989. 
These updated guidelines have been modified to incorporate changes 
necessary to implement the e-NEPA electronic filing system.

2. Purpose

    Pursuant to 40 CFR 1506.9 and 1506.10, EPA is responsible for 
administering the EIS filing process, and can issue guidelines to 
implement those responsibilities. The process of EIS filing includes 
the following: (1) Receiving and recording of the EISs, so that 
information in them can be incorporated into EPA's computerized

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data base; (2) establishing the beginning and ending dates for comment 
and review periods for draft and final EISs, respectively; (3) 
publishing these dates in a weekly Notice of Availability (NOA) in the 
Federal Register; (4) retaining the EISs in a central repository; and 
(5) determining whether time periods can be lengthened or shortened for 
``compelling reasons of national policy.''
    Under 40 CFR 1506.9, lead agencies are responsible for distributing 
EISs, and for providing additional copies of already distributed EISs, 
to the interested public for review. However, EPA will assist the 
public and other Federal agencies by providing agency contacts on, and 
information about, EISs.

3. Filing Draft, Final, and Supplemental EISs

    Federal agencies are required to prepare EISs in accordance with 40 
CFR part 1502, and to file the EISs with EPA as specified in 40 CFR 
1506.9. As of October 1, 2012, Federal agencies file an EIS by 
submitting the complete EIS, including appendices, to EPA through the 
e-NEPA electronic filing system.
    To sign up for e-NEPA, register for an account at: https://cdx.epa.gov/epa_home.asp
    Select ``NEPA Electronic Filing System (e-NEPA)'' when prompted to 
add a program. Inquiries can also be made to: (202) 564-7146 or (202) 
564-0678 or by email to: EISfiling@epa.gov.
    Please note that if a Federal agency prepares an abbreviated Final 
EIS (as described in 40 CFR 1503.4(c)), it should include copies of the 
Draft EIS when filing the Final EIS.
    The EISs must be filed no earlier than they are transmitted to 
commenting agencies and made available to the public (40 CFR 1506.9). 
This will assure that the EIS is received by all interested parties by 
the time EPA's NOA appears in the Federal Register, and, therefore, 
allows for the full minimum comment and review periods.
    If EPA receives a request to file an EIS and transmittal of that 
EIS is not complete, it will not publish a NOA in the Federal Register 
until assurances have been given that the transmittal process is 
complete. Similarly, if EPA discovers that a filed EIS has not been 
transmitted, EPA will issue a notice with the weekly Notices of 
Availability retracting the EIS from public review of the EIS until the 
transmittal process is completed. Once the agency has fulfilled the 
requirements of 40 CFR 1506.9, and has completed the transmittal 
process, EPA will reestablish the filing date and the minimum time 
period, and will publish this information in the next NOA. Requirements 
for circulation of EISs appear in 40 CFR 1502.19. Please note that the 
EIS submitted to the Office of Federal Activities through e-NEPA is 
only for filing purposes.
    EPA must be notified when a Federal agency adopts an EIS in order 
to commence the appropriate comment or review period. If a Federal 
agency chooses to adopt an EIS written by another agency, and it was 
not a cooperating agency in the preparation of the original EIS, the 
EIS must be re-circulated and filed with EPA according to the 
requirements set forth in 40 CFR 1506.3(b). In turn, EPA will publish a 
NOA in the Federal Register announcing that the document will have an 
appropriate comment or review period. When an agency adopts an EIS on 
which it served as a cooperating agency, the document does not need to 
be circulated for public comment or review; it is not necessary to file 
the EIS again with EPA. However, EPA should be notified in order to 
ensure that the official EIS record is accurate. Notifications can be 
sent by email to: EISfiling@epa.gov. EPA will publish an amended NOA in 
the Federal Register that states that an adoption has occurred. This 
will not establish a comment period, but will complete the public 
record.
    EPA should also be notified of all situations where an agency has 
decided to withdraw, delay, or reopen a review period on an EIS. 
Notifications can be sent by email to: EISfiling@epa.gov. All such 
notices to EPA will be reflected in EPA's weekly Notices of 
Availability published in the Federal Register. In the case of 
reopening EIS review periods, the lead agency should notify EPA as to 
what measures will be taken to ensure that the EIS is available to all 
interested parties. This is especially important for EIS reviews that 
are being reopened after a substantial amount of time has passed since 
the original review period closed.
    Once received by EPA, each EIS is assigned an official filing date 
and checked for completeness and compliance with 40 CFR 1502.10. If the 
EIS is not ``complete'' (i.e., if the documents do not contain the 
required components), EPA will contact the lead agency to obtain the 
omitted information or to resolve any questions prior to publishing the 
NOA in the Federal Register.
    Agencies often publish (either in their EISs or individual notices 
to the public) a date by which all comments on an EIS are to be 
received; such actions are encouraged. However, agencies should ensure 
that the date they use is based on the date of publication of the NOA 
in the Federal Register. If the published date gives reviewers less 
than the minimum review time computed by EPA, EPA will send the agency 
contact a letter explaining how the review period is calculated and the 
correct date by which comments are due back to the lead agency. This 
letter also encourages agencies to notify all reviewers and interested 
parties of the corrected review periods.

4. Notice in the Federal Register

    EPA will prepare a weekly report of all EISs filed during the 
preceding week for publication each Friday under a NOA in the Federal 
Register. If the Friday is a Federal holiday the publication will be on 
Thursday. At the time EPA sends its weekly report for publication in 
the Federal Register, the report will also be sent to the CEQ. Amended 
notices may be added to the NOA to include corrections, changes in time 
periods of previously filed EISs, withdrawals of EISs by lead agencies, 
and retraction of EISs by EPA.

5. Time Periods

    The minimum time periods set forth in 40 CFR 1506.10 (b), (c), and 
(d) are calculated from the date EPA publishes the NOA in the Federal 
Register. Comment periods for draft EISs, draft supplements, and 
revised draft EISs will end 45 calendar days after publication of the 
NOA in the Federal Register; review periods for final EISs and final 
supplements will end 30 calendar days after publication of the NOA in 
the Federal Register. If a calculated time period would end on a non-
working day, the assigned time period will be the next working day 
(i.e., time periods will not end on weekends or Federal holidays). 
While these time periods are minimum time periods, a lead agency may 
establish longer time periods. If the lead agency employs a longer time 
period, it must notify EPA of the extended time period when either 
filing the EIS through e-NEPA or by email to: EISfiling@epa.gov when 
the lead agency extends the time period. It should be noted that 40 CFR 
1506.10(b) allows for an exception to the rules of timing. An exception 
may be made in the case of an agency decision which is subject to a 
formal internal appeal. Agencies should assure that EPA is informed so 
that the situation is accurately reflected in the NOA.
    Moreover, under 40 CFR 1506.10(d), EPA has the authority to both 
extend and reduce the time periods on draft and final EISs based on a 
demonstration of ``compelling reasons of national

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policy.'' A lead agency request to EPA to reduce time periods or 
another Federal agency (not the lead agency) request to formally extend 
a time period should be submitted in writing to the Director, Office of 
Federal Activities, and outline the reasons for the request. These 
requests can be submitted by email to: EISfiling@epa.gov. EPA will 
accept telephone requests; however, agencies should follow up such 
requests in writing so that the documentation supporting the decision 
is complete. A meeting to discuss the consequences for the project and 
any decision to change time periods may be necessary. For this reason, 
EPA asks that it be made aware of any intent to submit requests of this 
type as early as possible in the NEPA process. This is to prevent the 
possibility of the time frame for the decision on the time period 
modification from interfering with the lead agency's schedule for the 
EIS. EPA will notify CEQ of any reduction or extension granted.

6. Retention

    Filed EISs are retained in the e-NEPA Filing system for two years. 
After two years the EISs are sent to the National Records Center. After 
a total of twenty (20) years the EISs are transferred to the National 
Archives Records Administration (NARA).
    Please note that EPA maintains a Web site that will make available 
copies of the filed EISs to the public. The retention schedule does not 
affect the availability of these electronic copies.

    Dated: August 21, 2012.
Cliff Rader,
Director, NEPA Compliance Division, Office of Federal Activities.
[FR Doc. 2012-20914 Filed 8-23-12; 8:45 am]
BILLING CODE 6560-50-P