SL2_SOW_ATCH F_AR INSTRUCTIONS_2025.pdf

Environmental Impact Analysis Process (EIAP)

Administrative Record Guidance

Department of the Air Force

Air Force Installation Management Support Center Air Force Civil Engineer Center NEPA Division and Air Force Operations and International Law Environmental Law and

Litigation Division – Environmental Law Field Support Center

March 2025

EIAP Administrative Record Guidance April 2024

1 Introduction Under the Administrative Procedures Act, a court can review a Department of the Air Force (DAF) decision to ensure it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”1 In general, a court makes its decision after reviewing the DAF’s Administrative Record (AR). The AR is sometimes informally called the “paper trail” that documents a federal agency’s decision-making process, including the basis for an agency decision and that agency’s final decision. The DAF is usually limited to the AR when justifying its decision to the court. As a result, the inability of the DAF to certify that it has compiled a complete AR can be very damaging to its case.

Some environmental and other laws specifically list items that must be in ARs for certain types of decisions. 2 However, this document is not intended to provide AR guidance for specific environmental laws. Instead, it is intended to provide broad guidance on the development of ARs under the National Environmental Policy Act (NEPA) and uses an Environmental Impact Statement (EIS) scenario as its example. For clarification, the DAF implements NEPA through its Environmental Impact Analysis Process (EIAP).

An AR consists of documents and materials that were directly and indirectly considered by the decision-maker, regardless of whether such documents or materials are supportive or contrary to the final DAF action. In order to determine which documents and materials should be included in the AR, project managers should consider the purpose of compiling an AR – to document the DAF’s decision-making process under NEPA, the National Historic Preservation Act (NHPA), the Coastal Zone Management Act (CZMA), and/or the Endangered Species Act (ESA). Generally, the types of documents and materials that should be included in the AR include documents and materials that were generated during the DAF’s decision-making process and were considered or relied on in the course of the analyses conducted under NEPA, NHPA, CZMA and/or ESA.

These instructions are intended to assist the project managers in reviewing their project files to identify AR documents and materials by providing some examples and general guidelines. These examples and general guidelines are not intended to be exhaustive, however. The review of project files requires careful consideration by the project managers, and requires their understanding of

1 5 USC § 706(2)(A).

2 For example, 42 USC § 7607(d)(7)(A) for the Clean Air Act, 42 USC § 9613(j) and 40 CFR §§ 300.800

- .825 for the Comprehensive Environmental Response, Compensation and Liability Act.

In general, an AR must include all documents and materials available to the agency for direct or indirect consideration or reliance when making its decision. Such documents and materials should be included regardless of whether they support or contradict the final decision. In addition, they must still be included even if the decision-maker did not personally know about or review them.

the issues under consideration in the DAF’s decision-making process. Project managers should confer with their supporting Staff Judge Advocate if they have any questions regarding whether documents and materials in their project files should be included in the AR or require support to ensure professionalism in communications is maintained.

2 Definition of AR Documents and Materials:

For the purposes of the AR, documents and materials include all documents such as memoranda and letters, as well as other means of communication which store or present information, including but not limited to e-mails, electronic files, computer tapes, compact discs, microfilm and microfiche, data files, photographs, graphs and charts, web pages and faxes. Hard copies of all documents, materials, and correspondences shall be saved into an electronic format for inclusion into the AR.

2.1 Document Classifications

Even though documents are labeled as protected in one form or another these documents must still be included in the AR if they otherwise meet the criteria set forth in this document. These documents labels include:

• “Attorney Client/Attorney Work Product material”

• “Controlled Unclassified Information (CUI)”

• “Deliberative Process/Freedom of Information Act (FOIA) Exempt”

• “Do Not Distribute”

3 Records Management by Federal Agencies, 44 USC Chp 31, and DoD Manual 5200.01-V4, DoD Information Security Program: Controlled Unclassified Information (CUI), AFI 33-322 Records Management and Information Governance Program, and AFMAN 33-302 Freedom of Information Program.

In addition to understanding what types of documents and materials must be in an AR, everyone who is working on a project should understand that their e-mails and other created documents and materials related to the project may become part of the AR. Therefore, it is important to maintain professionalism when drafting e-mails and other documents and materials.

It is the responsibility of the project manager and project team (including the contractor) to properly label all documents in accordance with Records Management Act3. The DAF program manager should establish the parameters of document classification at the beginning of the EIAP. For example, Meeting Minutes from bi-weekly calls will often contain “CUI” and “Attorney Client/Attorney Work Product material” and should be labeled accordingly.”

Maintaining documents and materials labeled “Attorney-Client Privileged/Attorney Work Product” in a separate file. This will aid the legal review of the AR and enhance the protection of these documents.

For any electronic file in the AR for which a protected status is asserted, the type of asserted protection should be included at the end of the filename to assist if litigation occurs in identifying protected files:

For example - “JAOE CRM on Interim Draft EIS - Attorney Work Product” or “CIE CRM on Preliminary Draft EIS - Deliberative Process.”

This simple file-naming technique will make screening for protected files much easier if litigation occurs.

2.2 File Formats for the AR:

All AR files must include the original file format and a searchable pdf, where applicable. This dual file formats allows reviewers and users to access, find, or manipulate the widest variety of file types (i.e., GIS, KMZs, etc.) and see the associated metadata. The Contractor should prepare a searchable electronic AR on appropriate portable digital storage devices (i.e., DVD/CD-ROM at the culmination of the project in Microsoft Word and PDF formats and whatever original file formats were used. PDF files will include hyper-links from the Table of Contents, List of Figures, and List of Tables to each representative section, map, or table. The itemized summary will be provided in electronic formats.

3 AR DOCUMENTS

For compilation purposes, the AR may consist of two categories of documents and materials:

1) Core documents and

2) Other documents and materials.

See Attachment 1 for a suggested example of an AR index for an EIS.

3.1 Core Documents

Core documents are those documents or materials that are typically generated during the DAF’s decision-making process under NEPA, NHPA, CZMA and/or ESA. These documents may be collected from the Contractor compiling the EIS, or other documentation required as part of the decision-making process. In the event these documents are not collected from the EIS Contractor, individual record custodians at relevant commands or offices involved in the NEPA, NHPA, CZMA or ESA process may be asked to provide such documents or materials. The various types of core documents are discussed in the following sections.

3.1.1 Final Documents and Deliverables

All materials, documents, and deliverables generated during the EIAP as part of the defined contract deliverables should be included in this category of core documents. These documents may include, but are not limited to the following:

• Notice of Intent (NOI)

• Draft Environmental Impact Statements (DEIS) (all volumes)

• Final Environmental Impact Statements (FEIS) (all volumes)

• Notices of Availability (NOAs)

• Record of Decision (ROD)

• Biological Assessments (BA)

• Biological Opinions (BO)

• Section 106 Memorandum of Agreement (MOA) or Programmatic Agreement (PA)

• Clean Air Act (CAA) Conformity Determinations and Applicability Analyses

• CZMA Consistency Determinations

• Permits

3.1.2 Reference Materials

Materials cited as references in the DEIS or FEIS and relied upon in consultation under the ESA and/or the NHPA would also be considered core documents. This category of core documents may include, but are not limited to, documents and materials such as:

• Studies cited in the EIS, MOA or PA, BA, and/or BO

• Plant and wildlife inventories

• Economic impact studies

• Cultural and natural resource surveys and reports, including maps and photographs providing information concerning cultural or natural resources

• Noise studies

• Utilities studies

• Maps depicting alternatives and existing uses

• Other studies or inventories prepared to support analyses

• Other studies or reports relied upon by the Air Force and shared with the consulting parties in the course of consultation under the NHPA and/or ESA

3.1.3 Public participation

Any material or correspondence that is generated or received during any aspect of public engagement is also considered a core document. This would include any correspondence that is received or generated outside of the formal comment periods (i.e., formal scoping or public comment periods). The public participation category of core documents may include, but are not limited to, documents and materials such as:

• Scoping documents

• Correspondence to agencies, organizations and tribes

• Responses to the above-listed items

• Mailing lists

• Partnering meeting agendas and notes

• Public notices/Advertisements, such as notices of meetings, availability of information, screen shots of website/webpages, or other opportunities to comment

• Documentation of informal public meetings

• Public requests for information

• Public comments o Comments received after the formal comment period, but before the decision document is signed should be considered as appropriate and included in the AR as received outside of the formal comment period.)

• Responses to comments

• Transcripts of public hearings

• Communications during consultation under Section 106 of the NHPA with consulting parties other than the State Historic Preservation Office (SHPO)/Tribal Historic Preservation Office (THPO) and/or the Advisory Council on Historic Preservation

(ACHP)

3.1.4 Lead, Cooperating and/or consulting agencies

All documents and correspondence associated with lead, cooperating, partnering or consulting agencies should be included in this category of core documents. These documents may include, but are not limited to the following documents and materials:

• Comments from state, lead, cooperating, partnering or consulting agencies on the NEPA process, including but not limited to the scope of the analysis, specific alternatives chosen for analysis, and mitigation measures.

• Communications between and amongst the various lead, cooperating, partnering or consulting agencies concerning the review of any versions of the DEIS and/or FEIS that were provided to the other agencies, in advance, for review and comment.

• Any formal correspondence with local and Federal resource agencies (e.g., Environmental Protection Agency (EPA), United States Fish and Wildlife Service (USFWS), National Marine Fisheries Service (NMFS) or State environmental agency) related to analyses, assessment and/or consultation under NEPA, ESA, NHPA and/or CZMA. This shall include, for example, the Air Force’s formal letter initiating consultation under Section 106 of the NHPA.

• Communications between and amongst the various federal agencies and the Council on Environmental Quality (CEQ) related to the DAF’s analyses, assessment and/or consultation under NEPA, ESA, NHPA and/or CZMA

• Communications between the SHPO/THPO, ACHP and the DAF related to the MOA or PA, including the provision of comments on draft versions of the MOA or PA (as well as any portion of the MOA or PA)

3.1.5 Congressional Testimony, Committee Reports, and Formal Correspondence All materials and documents relating to any Congressional engagement, reports, responses, and correspondence should be included in this category of core documents. These materials may include, but are not limited to, documents and materials such as:

• Final versions of Congressional testimony

• Reports prepared by or for Congressional Committees

• Formal correspondence (on official letterhead with a signature) between members of

Congress and the DAF

3.1.6 Decision Documents

All materials, correspondence, and documents that reflect a decision point in the EIAP should be included in this category of core documents. These materials may include, but are not limited to, documents and correspondence such as:

• Memorandums to the Record reflecting decision points

• Final versions of any fact sheets, bullet background papers, or white papers related to the decision document

• Formal PowerPoint and written briefings to key DAF decision makers:

o DAF decision-makers may include, but are not limited to the following: SAF/IE, SAF/IEI, SAF/IEE, AF/A3/5, AF/A7CI, and MAJCOM/A7 o Government working groups

3.1.7 Consolidated Final Comment Matrices

Comment Response Matrices containing consolidated comments on the various versions of core documents that were provided for review (intra- or inter-agency) throughout the EIAP and are considered core documents. Final versions of the comment matrices will consist of the comments, as well as the DAF’s responses and/or resolutions to those comments.

For example, a Preliminary Draft EIS may be disseminated to the interdisciplinary team and/or various agencies, as appropriate, for review and comment. Individual or consolidated Comment Response Matrices would be provided to the Contractor and/or Project Management team for inclusion into the document. The Project Management team subsequently insert responses in the matrices that state how each comment was resolved or incorporated into the working draft version of the document, or explanations may be provided to clarify issues that were not clear to the reviewer.

3.1.8 Freedom of Information Act

Formal requests under the Freedom of Information Act (FOIA) from members of the public, state or local government representatives, including Congressional representatives, for production of documents relating to the EIS proposal are considered core documents. These requests may be in the form of an e-mail or more formal correspondence, such as a letter. These materials includes, but are not limited to:

• Correspondence between the DAF and the requesting party

• Correspondence or materials requesting or providing more information about the FOIA request

• Correspondence or materials denying the FOIA request, or producing documents in response to the FOIA request

Core documents do not include intra-agency correspondence notifying others about the request or discussing or processing the request. Also, this does not include the DAF’s response to the requester acknowledging receipt of the FOIA request.

3.2 Other Documents and Materials

There are other types of documents, correspondence, and materials generated by individuals participating in the EIAP that should be included in the AR. As a result, the remainder of the materials in the AR will be information kept by individual document custodians (i.e., the individuals involved in NEPA, NHPA, ESA or CZMA processes). In carefully reviewing their project files, individuals must remember that the AR includes only those documents and materials that were indirectly or directly considered by the DAF decision-maker when making the decision.

4 GENERAL RULES FOR INCLUSION IN THE ADMINISTRATIVE

RECORD

The AR should include any documents, correspondence, and materials that contain discussions regarding changes to the content and scope of the EIS, such as deletions, additions, or other changes that are not incidental, regardless of whether such changes were ultimately made to the EIS. The AR should include any documents, correspondence, and materials that contain issues of debate, points of disagreement or controversy, to the extent such discussions relate to the content of a core document, regardless of whether the content of such documents or materials support or contradict the decision reached and regardless of whether any aspect of the analysis was discarded and not included in the core document.

4.1 Extraneous Discussions and Debates

Care should be taken to include documents, correspondence, and materials discussing issues that were the subject of public comments on the NOI, DEIS or similar NEPA building blocks, especially if the issue is not discussed at length in the FEIS. These types of issues may include, but are not limited to:

• Briefed “up the chain of command”

• Reflect the progression of the analyses or evaluations conducted by the agency as part of the decision-making process, regardless of whether the content of such documents or materials were ultimately included in the core document

Specific examples of documents that should be considered for inclusion in the AR include, but are not limited to:

• Final drafts of briefings and memoranda to officials other than key decision-makers

• Documents, including e-mails that contain substantive debates where the final document does not fully reflect the outcome of the debate o Include all materials and correspondence of the debates and discussions that resulted in various items NOT being incorporated into the final documents

• Other correspondence with local and Federal resource agencies (i.e., EPA, USFWS, NMFS, or State environmental agency) related to the proposed action that contain substantive debates where the final document does not fully reflect the outcome of the discussion

4.2 Classified Information

Classified material is to be handled separately. Immediately notify the project manager if there is classified material that should be included in the AR.

5 GENERALLY EXCLUDED DOCUMENTS AND MATERIALS

There are administrative documents and materials that do not need to be included in the AR. The following types of administrative documents and materials generally can be excluded:

• Contract and contract work documents

• Project cost documentation (as opposed to cost effectiveness information)

• Purely administrative communications, such as documents or materials simply coordinating meetings that contain no discussion of the content of the EIS. However, if administrative communications also contain information that is considered or relied on in the analysis or, ultimately, in the decision reached after completion of EIAP, and the information is not contained elsewhere in the AR, then the documents or materials should be included in the AR

• Purely personal notes made for the use of an individual that are not circulated and reviewed by other attendees at meetings

• Related actions not part of this decision-making process o The AR should also not include documents related to a separate agency action that is not part of the particular EIS process at issue

5.1 Draft Documents and Internal Memoranda

Generally, the AR should not include draft documents such as preliminary draft documents that are revised or superseded by subsequent drafts—noting, of course, that the DEIS released to the public is treated as a final document. Various draft versions of the EIS may be excluded if the preliminary versions of the EIS are superseded by a subsequent version of the EIS, and there is no change to the underlying content of the EIS.

5.2 Post Decision Information

Documents generated or received after the Record of Decision is signed are normally not part of the AR. Such documents should be retained in a post-decision document file.

5.3 Duplicates and E-mail Chains

Only one copy of each document must be provided. In the case of e-mail chains, only include the final version of the chain, that is, the version that includes the final e-mail in the chain and all of the e-mails that precede it in the chain.

6 PROJECT FILE RETENTION

All files and documents related to the project that do not meet the criteria in this guidance must still be retained in accordance with information management requirements or, in the event of litigation, until further notice. Retain electronic documents by copying them onto DVDs or by copying them into an area of a shared drive that is regularly backed up and is designated for such purpose.

CAVEAT: This internal guidance does not create any rights, substantive or procedural, which are enforceable at law by any party. It is meant to compliment and not replace any legal or regulatory requirements.

We acknowledge the contributions of the U.S. Navy in the formulation of this guidance.

Additionally, there are links provided in this section to online guides by other agencies that may provide additional guidance. These links contain supplemental guidance on what types of documents should be protected and other issues that may arise when compiling the AR. Any legal questions over these materials should be staffed to the DAF legal advisors for clarification on the EIAP issue in question.

7 REFERENCE

AASHTO (American Association of State Highway and Transportation Officials) Center for Environmental Excellence; 2016; Practioner’s Handbook, Maintaining a Project File and Preparing an Administrative Record for a NEPA Study; (*chapters 4 and 5 are very helpful).

https://environment.transportation.org/wp-content/uploads/2021/05/ph01-2.pdf

FHWA (Federal Highways Administration): Order M 1324.1B, “FHWA Record Management” (July 29, 2013); https://www.fhwa.dot.gov/legsregs/directives/orders/13241b.cfm

J. Goldfrank, “Guidance to Client Agencies on Compiling the Administrative Record,” U.S.

Attorneys’ Bulletin, Vol. 48, No. 1 (Feb. 2000) https://www.justice.gov/sites/default/files/usao/legacy/2006/06/30/usab4801.pdf https://environment.transportation.org/wp-content/uploads/2021/05/ph01-2.pdf https://www.fhwa.dot.gov/legsregs/directives/orders/13241b.cfm https://www.justice.gov/sites/default/files/usao/legacy/2006/06/30/usab4801.pdf

ATTACHMENT 1 EXAMPLE AR INDEX FOR AN EIS

Administrative Record Project File Structure

Environmental Impact Statement for ____________ [Proposal Name]

The Administrative Record includes only those documents and materials that were indirectly or directly considered by the Air Force decision-maker when making the decision.

1. Final Documents and Substantive Deliverables 1a. Environmental Impact Statement (EIS)

• Draft EIS

• Final EIS

1b. Record of Decision 1c. Mitigation Plan

2. Technical Documentation/References 2a. EIS References 2b. Appendix Airspace and Air Traffic Analysis 2c. Appendix Airspace Obstruction Analysis 2d. Appendix Natural Resources 2e. Appendix Noise Analysis

3. Public Involvement 3a. Pre-Scoping

• Notice of Intent

• Newspaper Releases/Tear sheets

• Press Releases

3b. Scoping

• Final Scoping Plan

• All Public and Stakeholder Comments

• Memos for Record

• Scoping Summary Report

3c. Draft EIS

• Notice of Availability o Federal Register o Newspaper Releases/Tear sheets

• Mailing/Stakeholder List

• Public Hearing o Public Hearing Plan o Transcripts o Public Hearing Summary Report

• Comments o Emailed o Verbal Hearing Transcripts o Mailed o Written Submitted at Hearing o Website Export

3d. Final EIS o Federal Register o Newspaper Releases/Tear sheets

• Mailing/Stakeholder List

• Comments during 30-day waiting period

3e. Record of Decision o Federal Register o Newspaper Releases/Tear sheets

4. Lead, Participating and Cooperating Agencies

4a. Federal Aviation Administration

• Request letter and response

• Any correspondence and communications (i.e., emails, letters, memos, etc.)

• All information, reports, and supporting materials

4b. xxx

• Request letter and response

• Any correspondence and communications (i.e., emails, letters, memos, etc.)

• All information, reports, and supporting materials

4c. xxx

• Request letter and response

• Any correspondence and communications (i.e., emails, letters, memos, etc.)

• All information, reports, and supporting materials

5. Interagency Coordination

5a. Scoping Letters 5b. Draft EIS Letters 5c. Final EIS Letters

6. Consultation 6a. Endangered Species Act, Section 7

• Documents and materials

• Correspondence

6b. National Historic Preservation Act, Section 106

• Documents and materials

• Correspondence

7. Government-to-Government Consultation with Indian Tribes

7a. Tribes Scoping Letters 7b. Tribes Draft EIS Letters 7c. Tribes Final EIS Letters 7d. Tribes Other Communications and Briefing Materials

8. Internal Coordination and Meetings

8a. Kick-off Meeting Materials, Agenda, Meeting Minutes 8b. Project Bi-weekly Meeting Minutes 8c. Document Development and Reviews

• DOPAA Development and Supporting Comment Response Matrices o V1 Pre-Draft DOPAA o V2 Draft DOPAA o V3 Check Copy DOPAA o V4 Stabilized DOPAA

• On-board Reviews and Supporting Comment Response Matrices o OBR Preliminary Draft DOPAA o OBR Preliminary Draft EIS o OBR Interim Draft EIS o OBR Interim Final EIS

8d. Email Correspondence

• Project Kickoff through Scoping

• Scoping through Draft EIS

• Draft EIS through ROD

9. Website Content (to include screen shots) 9a. NOI to Scoping Close 9b. Draft EIS to Comment Close 9d. Final EIS to ROD

10. Imagery and GIS Files-Data GIS Data Files

11. Noise Files Noise Modeling Files

12. Other External Communications Received and Delivered 12a. Congressional engagement, reports, inquiries, and responses 12b. Written communications between DAF Action Officers and non-cooperating federal agencies and non-federal regulators 12c. Written comments or inquiries from the public not otherwise captured in this file structure