[Code of Federal Regulations]
[Title 40, Volume 31]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR1504.3]

[Page 884-885]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER V--COUNCIL ON ENVIRONMENTAL QUALITY
 
PART 1504_PREDECISION REFERRALS TO THE COUNCIL OF PROPOSED FEDERAL
ACTIONS DETERMINED TO BE ENVIRONMENTALLY UNSATISFACTORY--
 
Sec.  1504.3  Procedure for referrals and response.

    (a) A Federal agency making the referral to the Council shall:
    (1) Advise the lead agency at the earliest possible time that it 
intends to refer a matter to the Council unless a satisfactory agreement 
is reached.
    (2) Include such advice in the referring agency's comments on the 
draft environmental impact statement, except when the statement does not 
contain adequate information to permit an assessment of the matter's 
environmental acceptability.
    (3) Identify any essential information that is lacking and request 
that it be made available at the earliest possible time.
    (4) Send copies of such advice to the Council.
    (b) The referring agency shall deliver its referral to the Council 
not later than twenty-five (25) days after the final environmental 
impact statement has been made available to the Environmental Protection 
Agency, commenting agencies, and the public. Except when an extension of 
this period has been granted by the lead agency, the Council will not 
accept a referral after that date.
    (c) The referral shall consist of:
    (1) A copy of the letter signed by the head of the referring agency 
and delivered to the lead agency informing the lead agency of the 
referral and the reasons for it, and requesting that no action be taken 
to implement the matter until the Council acts upon the referral. The 
letter shall include a copy of the statement referred to in (c)(2) of 
this section.
    (2) A statement supported by factual evidence leading to the 
conclusion that the matter is unsatisfactory from the standpoint of 
public health or welfare or environmental quality. The statement shall:
    (i) Identify any material facts in controversy and incorporate (by 
reference if appropriate) agreed upon facts,
    (ii) Identify any existing environmental requirements or policies 
which would be violated by the matter,
    (iii) Present the reasons why the referring agency believes the 
matter is environmentally unsatisfactory,
    (iv) Contain a finding by the agency whether the issue raised is of 
national importance because of the threat to national environmental 
resources or policies or for some other reason,
    (v) Review the steps taken by the referring agency to bring its 
concerns to the attention of the lead agency at the earliest possible 
time, and
    (vi) Give the referring agency's recommendations as to what 
mitigation alternative, further study, or other course of action 
(including abandonment of the matter) are necessary to remedy the 
situation.
    (d) Not later than twenty-five (25) days after the referral to the 
Council the lead agency may deliver a response to the Council, and the 
referring agency. If the lead agency requests more time and gives 
assurance that the matter will not go forward in the interim, the 
Council may grant an extension. The response shall:
    (1) Address fully the issues raised in the referral.
    (2) Be supported by evidence.
    (3) Give the lead agency's response to the referring agency's 
recommendations.
    (e) Interested persons (including the applicant) may deliver their 
views in writing to the Council. Views in support of the referral should 
be delivered

[[Page 885]]

not later than the referral. Views in support of the response shall be 
delivered not later than the response.
    (f) Not later than twenty-five (25) days after receipt of both the 
referral and any response or upon being informed that there will be no 
response (unless the lead agency agrees to a longer time), the Council 
may take one or more of the following actions:
    (1) Conclude that the process of referral and response has 
successfully resolved the problem.
    (2) Initiate discussions with the agencies with the objective of 
mediation with referring and lead agencies.
    (3) Hold public meetings or hearings to obtain additional views and 
information.
    (4) Determine that the issue is not one of national importance and 
request the referring and lead agencies to pursue their decision 
process.
    (5) Determine that the issue should be further negotiated by the 
referring and lead agencies and is not appropriate for Council 
consideration until one or more heads of agencies report to the Council 
that the agencies' disagreements are irreconcilable.
    (6) Publish its findings and recommendations (including where 
appropriate a finding that the submitted evidence does not support the 
position of an agency).
    (7) When appropriate, submit the referral and the response together 
with the Council's recommendation to the President for action.
    (g) The Council shall take no longer than 60 days to complete the 
actions specified in paragraph (f)(2), (3), or (5) of this section.
    (h) When the referral involves an action required by statute to be 
determined on the record after opportunity for agency hearing, the 
referral shall be conducted in a manner consistent with 5 U.S.C. 557(d) 
(Administrative Procedure Act).

[43 FR 55998, Nov. 29, 1978; 44 FR 873, Jan. 3, 1979]