Procedures for Implementation of the National Environmental Policy Act

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BILUNG CODE 7510-01-M FEDERAL TRADE COMMISSION 16 CFR P a rti Procedures for Implementation of the National Environmental Policy Act of AGENCY: Federal Trade Commission. a c t io n : Final rule. * s u m m a r y: The Federal Trade Commission is adopting new rules for implementing the procedural provisions of the National Environmental Policy Act. The rules provide that it is the Commission’s policy to comply with the Council on Environmental Quality regulations (40 CFR Parts 1500-1508). The rules set forth supplementary definitions and procedures to be applied in conjunction with the Council’s regulations.

e ffe c tiv e DATE: February 22,1982.

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Federal Register / Vol. FOR FURTHER INFORMATION CONTACT; Jerold D. Cummins, Deputy Assistant General Counsel, Office of the General Counsel, Federal Trade Commission, Sixth Street and Pennsylvania Avenue, N.W., Washington, D.G 20580 (202-523- 1928).

SUPPLEMENTARY INFORMATION: The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., requires all federal agencies to give appropriate consideration to the environmental effects of their proposed actions in their decisionmaking and to prepare detailed environmental statements on proposals for legislation significantly affecting the quality of the human environment and on other major federal actions significantly affecting the quality of the human environment.,"Hie Council on Environmental Quality (CEQ) issued regulations to implement ' the procedural provisions of NEPA (codified at 40 CFR Part 1500-1508) under the direction of Executive Order No. 11991. These regulations require all agencies to prepare supplemental procedures as necessary to implement the regulations (§ 1507.3). Although it is the Commission’s position that these regulations are not binding on it, the Commission’s policy is to comply fully with the CEQ regulations unless it determines in a particular instance or for a category of actions that compliance would not be consistent with the requirements of law. In the Federal Register of July 20,1979 (45 FR 42712-14), the Commission proposed procedures to implement and supplement CEQ’s regulations. Only one substantive comment was received. The commenter challenged that part of proposed rule § 1.82(a) which, like its counterpart in existing 16 CFR 1.82(d), construes the environmental impact provision of NEPA (42 U.S.C. 102(2)(C)) as not applying to law enforcement proceedings. The Commission in the past has rejected arguments that the impact statement requirements are applicable at any stage of a law enforcement proceeding. Coca-Cola Co., 91 F.T.C. pl7, 666-67 (1978), order vacated and case remanded on other grounds, 642 F.2d 1387 (D.C. Cir. 1981); Jim Walter Corp., 91 F.T.C. 514, 516 (1970), order vacated and case remanded on other grounds, 625 F.2d 676 (5th Cir. 1980). The issue has been raised but not decided in other court proceedings. See, e.g., Gifford-Hill & Co. v. FTC, 523 F.2d 730 (D.C. Cir. 1975); Mobil Oil Corp. v. FTC, 562 F. 2d 170 (2d Cir. 1977). As provided in the rules issued today, the Commission adheres to its view that Congress did not intend that the environmental impact statement 47, No. 15 / Friday, January 22, 1982 requirement of section 102(2)(C) of NEPA be applicable to the bringing of law enforcement proceedings. This position is also set forth in CEQ Regulation § 1508.18(a). Ordinarily, final disposition of such matters, whether by Adjudication or consent order proceedings, will not significantly affect the quality of the human environment. In the rare event that the Commission in such proceedings might actively contemplate final relief, or the promulgation of standards, which may have a significant environmental effect, the rules provide {§ 1.82(a)) that the Commission will, when consistent with the requirements of law, provide for the preparation of an environmental assessm'ent or an environmental impact statement or such other action as will permit the Commission to assess alternatives with a view toward avoiding or minimizing any adverse effect upon the environment. Text of the Rules: Part 1 of 16 CFR Chapter I, Subpart I, is revised to read in its entirety as follows: PART 1—GENERAL PROCEDURES * * * * * Subpart I—Procedures for Implementation of the National Environmental Policy Act of 1969 Sec.

1.81 Authority and incorporation of CEQ regulations.

1.82 Declaration of policy. 1.83 Whether to commence the process for an Environmental Impact Statement 1.84 Draft Environmental Impact Statements: Availability and comment. 1.85 Final Environmental Impact Statements.

1.86 Supplemental statements. 1.87 NEPA and agency decisionmaking. 1.88 Implementation procedures. 1.89 Effect on prior actions. * * * * * Subpart I—Procedures for Implementation of the National Environmental Policy Act of 1969 Authority: 15 U.S.C. 46(g), 42 U.S.C. 4371 et seq.

§ 1.81 Authority and Incorporation of CEQ Regulations.

This subpart is issued pursuant to 102(2) of the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4371 et seq.). Pursuant to Executive Order 11514 (March 5,1970, as amended by Executive Order 11991, May 24,1977) the Council on Environmental Quality (CEQ) has issued comprehensive regulations for implementing the procedural provisions of NEPA (43 FR 55978-56007) (“CEQ / Rules and Regulations Regulations”). Although it is the Commission’s position that these regulations are not binding on it, the Commission’s policy is to comply fully with the CEQ Régulations unless it determines in a particular instance or for a category of actions that compliance would not be consistent with the requirements of law. With this caveat, the Commission incorporates into this subpart the CEQ Regulations. The following are supplementary definitions and procedures to be applied in conjunction with the CEQ Regulations.

§ 1.82 Declaration of policy. (a) Except for actions which are not subject to the requirements of section 102(2)(C) of NEPA, no Commission proposal for a major action significantly affecting the quality of the human environment will be instituted unless an environmental impact statement has been prepared for consideration in the decisionmaking. All relevant environmental documents, comments, and responses as provided in this subpart shall accompany such proposal through all review processes. “Major actions, significantly affecting the quality of the human environment" referred to in this subpart “do not include bringing judicial or administrative civil or criminal enforcement actions” CEQ Regulation (40 CFR 1508.18(a)). In the event that the Commission in an administrative enforcement proceeding actively contemplates the adoption of standards or a form of relief which it determines may have a significant effect on the environment. the Commission will, when consistent with the requirements of law, provide for the preparation of an environmental assessment or an environmental impact statement or such other action as will permit the Commission to assess alternatives with a view toward avoiding or minimizing any adverse effect upon the environment.

(b) No Commission proposal for legislation significantly affecting the quality of the human environment and concerning a subject matter in which the Commission has primary responsibility will be submitted to Congress without an accompanying environmental impact statement.

(c) When the Commission finds that emergency action is necessary and an environmental impact statement cannot be prepared in conformance with the CEQ Regulations, the Commission will consult with CEQ about alternative arrangements in accordance with CEQ Regulation (40 CFR 1506.11).

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Federal Register / Vol. 47, No. 15 / Friday, January 22, 1982 / Rules and Regulations § 1.83 Whether to commence the process for an Environmental impact Statement. (a) The Bureau responsible for submitting a proposed rule, guide, or proposal for legislation to the Commission for agency action shall, after consultation with the Office of the General Counsel, initially determine whether or not the proposal is one which requires an environmental impact statement. Except for matters where the environmental effects, if ¿any, would appear to be either (1) clearly significant and therefore the decision is made to prepare an environmental impact statement, or (2) so uncertain that environmental analysis would be based on speculation, the Bureau should normally prepare an “environmental assessment” CEQ Regulation (40 CFR 1508.9) for purposes of providing sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. The Bureau should involve environmental agencies to the extent practicable in preparing an assessment. An environmental assessment shall be made available to the public when the proposed action is made public along with any ensuing environmental impact statement or finding of no significant impact.

(b) If the Bureau determines that the proposal is one which requires an environmental impact statement, it shall commence the “scoping process” GEQ Regulation (40 CFR 1501.7) except that the impact statement which is part of a proposal for legislation need not go through a scoping process but shall conform to CEQ Regulation (40 CFR 1506.8). As soon as practicable after its decision to prepare an environmental impact statement and before the scoping process, the Bureau shall publish a notice of intent as provided in CEQ Regulations (40 CFR 1501.7 and 1508.22). (c) If, on the basis of an environmental assessment, the determination is made not to prepare a statement, a finding of “no significant impact” shall be made in accordance with GEQ Regulation (40 CFR 1508.3) and shall be made available to the public as specified in CEQ Regulation (40 CFR 1506.6). § 1.84 Draft environmental impact statements: Availability and comment. Except for proposals for legislation, environmental impact statements shall be prepared in two stages: Draft statement and final statement. (a) Proposed rules or guides. (1) An environmental impact statement, if deemed necessary, shall be in draft form at the time a proposed rule or guide is published in the Federal Register and shall accompany the proposal throughout the decisionmaking process. (2) The major decision points with respect to rules and guides are: (i) Preliminary formulation of a staff proposal;

(ii) The time the proposal is initially published in the Federal Register as a Commission proposal;

(iii) Presiding officer’s report (in trade regulation rule proceedings); (iv) Submission to the Commission of the staff report or recommendation for final action on the proposed guide or rule;

(v) Final decision by the Commission. The decision on whether or not to prepare an environmental impact statement should occur at point (i). The publication of any draft impact statement should occur at point (ii). The publication of the final environmental impact statement should occur at point (iv).

(b) Legislative proposals. In legislative matters, a legislative environmental impact statement shall be prepared in accordance with CEQ Regulation (40 CFR 1506.8). (c) In rule or guide proceedings the draft environmental impact statement shall be prepared in accordance with CEQ Regulation (40 CFR 1502.9) and shall be placed in the public record to which it pertains; in legislative matters, • the legislative impact statement shall be placed in a public record to be established, containing the legislative report to which it pertains; these will be available to the public through the Office of the Secretary and will be published in full with the appropriate proposed rule, guide, or legislative report; such statements shall also be filed with the Environmental Protection Agency’s (EPA) Office of Environmental Review (CEQ Regulation (40 CFR 1506.9) for listing in the weekly Federal Register Notice of draft environmental impact statements, and shall be circulated, in accordance with CEQ Regulations (40 CFR 1502.19,1506.6) to appropriate federal, state and local agencies. (d) Forty-five (45) days will be allowed for comment on the draft environmental impact statement, calculated from the date of publication in the EPA’s weekly Federal Register list of draft environmental impact statements. The Commission may in its discretion grant such longer period as the complexity of the issues may warrant.

§ 1.85 Final environmental impact statements.

(a) After the close of the comment period, the Bureau responsible for the matter will consider the comments received on the draft environmental impact statement and will put the draft statement into final form in accordance with the requirements of CEQ Regulation (40 CFR 1502.9(b)), attaching the comments received (or summaries if response was exceptionally voluminous).

(b) Upon Bureau approval of the final environmental impact statement the final statement will be (1) Filed with the EPA; (2) Forwarded to all parties which commented on the draft environmental impact statement and to other interested parties, if practicable; (3) Placed in the public record of the proposed rule or guide proceeding or legislative matter to which it pertains; (4) Distributed in any other way which the Bureau in consultation with CEQ deems appropriate.

(c) In rule and guide proceedings, at least thirty (30) days will be allowed for comment on the final environmental impact statement, calculated from the date of publication in the EPA’s weekly Federal Register list of final environmental impact statements. In no event will a final rule or guide be promulgated prior to ninety (90) days after notice of the draft environmental impact statement, except where emergency action makes such time period impossible.

§ 1.86 Supplemental statements. Except for proposals for legislation, as provided in CEQ Regulation (40 CFR 1502.9(c)), the Commission shall publish supplements to either draft or final environmental statements if: (a) The Commission makes substantial changes in the proposed action that are relevant to environmental concerns; or (b) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action and its impacts. In the course of a trade regulation rule proceeding, the supplement will be placed in the rulemaking record.

§ 1.87 NEPA and agency decisionmaking. In its final decision on the proposed action or, if appropriate, in its recommendation to Congress, the Commission shall consider all the alternatives in the environmental impact statement and other relevant environmental documents and shall prepare a concise statement which, in accordance with CEQ Regulation § 1505.2, shall

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Federal Register / Vol. 47, No. 15 / Friday, January 22, 1982 / Rules and Regulations (a) Identify all alternatives considered by the Commission in reaching its decision or recommendation, specifying the alternatives which were considered to be environmentally preferable; (b) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not.

§ 1.88 Implementing procedures. (a) The General Counsel is designated the official responsible for coordinating the Commission’s efforts to improve environmental quality. He will provide assistance to the staff in determining when an environmental impact statement is needed and in its preparation.

(b) The Commission will determine finally whether an action complies with NEPA.

(c) The Directors of the Bureaus of Consumer Protection and Competition will supplement these procedures for their Bureaus to assure that every proposed rule and guide is reviewed to assess the need for an environmental impact statement and that, where need exists, an environmental impact statement is developed to assure timely consideration of environmental factors. (d) The General Counsel will establish procedures to assure that every legislative proposal on a matter for which the Commission has primary responsibility is reviewed to assess the need for an environmental impact statement and that, where need exists, and environmental impact statement is developed to assure timely consideration of environmental factors. (e) Parties seeking information or status reports on environmental impact statements and other elements of the NEPA process, should contact the Assistant General Counsel for Litigation and Environmental Policy. § 1.89 Effect on prior actions. It is the policy of the Commission to apply these procedures to the fullest extent possible to proceedings which are already in progress. By direction of the Commission dated January 5,1982.

Carol M. Thomas, Secretary.

[FR Doc. 82-1546 Filed 1-21^82; 8:45 am]