[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR6.107]
[Page 103-105]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 6_PROCEDURES FOR IMPLEMENTING THE REQUIREMENTS OF THE COUNCIL ON
ENVIRONMENTAL QUALITY ON THE NATIONAL ENVIRONMENTAL POLICY ACT--
Subpart A_General
Sec. 6.107 Categorical exclusions.
(a) General. Categories of actions which do not individually,
cumulatively over time, or in conjunction with other Federal, State,
local, or private actions have a significant effect on the quality of
the human environment and which have been identified as having no such
effect based on the requirements in Sec. 6.505, may be exempted from
the substantive environmental review requirements of this part.
Environmental information documents and
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environmental assessments or environmental impact statements will not be
required for excluded actions.
(b) Determination. The responsible official shall determine whether
an action is eligible for a categorical exclusion as established by
general criteria in Sec. 6.107 (d) and (e) and any applicable criteria
in program specific subparts of part 6 of this title. A determination
shall be made as early as possible following the receipt of an
application. The responsible official shall document the decision to
issue or deny an exclusion as soon as practicable following review in
accordance with Sec. 6.400(f). For qualified actions, the documentation
shall include the application, a brief description of the proposed
action, and a brief statement of how the action meets the criteria for a
categorical exclusion without violating criteria for not granting an
exclusion.
(c) Revocation. The responsible official shall revoke a categorical
exclusion and shall require a full environmental review if, subsequent
to the granting of an exclusion, the responsible official determines
that: (1) The proposed action no longer meets the requirements for a
categorical exclusion due to changes in the proposed action; or (2)
determines from new evidence that serious local or environmental issues
exist; or (3) that Federal, State, local, or tribal laws are being or
may be violated.
(d) General categories of actions eligible for exclusion. Actions
consistent with any of the following categories are eligible for a
categorical exclusion:
(1) Actions which are solely directed toward minor rehabilitation of
existing facilities, functional replacement of equipment, or towards the
construction of new ancillary facilities adjacent or appurtenant to
existing facilities;
(2) Other actions specifically allowed in program specific subparts
of this regulation; or
(3) Other actions developed in accordance with paragraph (f) of this
section.
(e) General criteria for not granting a categorical exclusion. (1)
The full environmental review procedures of this part must be followed
if undertaking an action consistent with allowable categories in
paragraph (d) of this section may involve serious local or environmental
issues, or meets any of the criteria listed below:
(i) The action is known or expected to have a significant effect on
the quality of the human environment, either individually, cumulatively
over time, or in conjunction with other Federal, State, local, tribal or
private actions;
(ii) The action is known or expected to directly or indirectly
affect:
(A) Cultural resource areas such as archaeological and historic
sites in accordance with Sec. 6.301,
(B) Endangered or threatened species and their critical habitats in
accordance with Sec. 6.302 or State lists,
(C) Environmentally important natural resource areas such as
floodplains, wetlands, important farmlands, aquifer recharge zones in
accordance with Sec. 6.302, or
(D) Other resource areas identified in supplemental guidance issued
by the OEA;
(iii) The action is known or expected not to be cost-effective or to
cause significant public controversy; or
(iv) Appropriate specialized program specific criteria for not
granting an exclusion found in other subparts of this regulation are
applicable to the action.
(2) Notwithstanding the provisions of paragraph (d) of this section,
if any of the conditions cited in paragraph (e)(1) of this section
exist, the responsible official shall ensure:
(i) That a categorical exclusion is not granted or, if previously
granted, that it is revoked according to paragraph (c) of this section;
(ii) That an adequate EID is prepared; and
(iii) That either an environmental assessment and FNSI or a notice
of intent for an EIS and ROD is prepared and issued.
(f) Developing new categories of excluded actions. The responsible
official, or other interested parties, may request that a new general or
specialized program specific category of excluded actions be created, or
that an existing category be amended or deleted. The request shall be in
writing to the Assistant Administrator, OEA, and shall contain adequate
information to support the request. Proposed new categories shall be
developed by OEA and published in the Federal Register as
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a proposed rule, amending paragraph (d) of this section when the
proposed new category applies to all eligible programs or, amending
appropriate paragraphs in other subparts of this part when the proposed
new category applies to one specific program. The publication shall
include a thirty (30) day public comment period. In addition to criteria
for specific programs listed in other subparts of this part, the
following general criteria shall be considered in evaluating proposals
for new categories:
(1) Any action taken seldom results in the effects identified in
general or specialized program specific criteria identified through the
application of criteria for not granting a categorical exclusion;
(2) Based upon previous environmental reviews, actions consistent
with the proposed category have not required the preparation of an EIS;
and
(3) Whether information adequate to determine if a potential action
is consistent with the proposed category will normally be available when
needed.
[50 FR 26315, June 25, 1985, as amended at 51 FR 32610, Sept. 12, 1986]
