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126 Federal Register / Vol. 73, No.

1 / Wednesday, January 2, 2008 / Proposed Rules

Dated: November 16, 2007. Resources Management; Office of and finalized in the DM in March 2004;
Laura Yoshii, Environmental Policy and Compliance; and (2) addressing new NEPA-related
Acting Regional Administrator, Region IX. 1849 C Street, NW., Washington, DC policy issues. Specifically, they provide
[FR Doc. E7–25100 Filed 12–31–07; 8:45 am] 20240. Telephone: 202–208–6661. E- for, among others, greater public and
BILLING CODE 6560–50–P
mail: vijai_rai@ios.doi.gov. stakeholders’ participation in the NEPA
SUPPLEMENTARY INFORMATION: process, collaborative NEPA planning,
conflict avoidance, and use of adaptive
Background and Need for the Proposed management.
DEPARTMENT OF THE INTERIOR Rule Finally, this proposal will allow for
Office of the Secretary CEQ regulations at 40 Code of Federal better integration of NEPA procedures
Regulations (CFR) 1507.3 require and documentation into current
43 CFR Part 46 Federal agencies to adopt procedures as Departmental decision-making
necessary to supplement CEQ’s processes, including collaborative and
RIN 1090–AA95 regulations implementing NEPA and to incremental decision-making.
consult with CEQ during their In 2002, the Department undertook a
Implementation of the National development and prior to publication in review of its NEPA practices. This
Environmental Policy Act (NEPA) of the Federal Register. The regulation review was done at the practitioner
1969 further encourages agencies to publish level to obtain best practices in the field.
AGENCY:Office of the Secretary, Interior. agency explanatory guidance for CEQ’s In addition, the Department held four
Proposed rule; request for
ACTION: regulations and agency procedures. regional listening sessions open to the
comments. The Department’s procedures public, to assist in the identification of
implementing NEPA as required by CEQ best NEPA practices that could be
SUMMARY: The Department of the have been contained in chapter 516 of applied across the Department.
Interior (Department) proposes to the DM. We revised these procedures Following these public listening
amend its regulations by adding a new and published the revisions in the sessions, the Department promulgated
part to codify its NEPA procedures Federal Register on March 8, 2004 (69 best practices in two phases: first,
currently in the Departmental Manual FR 10866) and June 6, 2005 (70 FR through the issuance of five ESMs in
(DM). This proposed regulation contains 32840). We have now decided to 2003 (directives to bureaus on best
Departmental policies and procedures publish the procedures as rules to be practices); and second, through
for compliance with NEPA, Executive codified in the CFR. finalizing those NEPA best practices in
Order (E.O.) 11514, E.O. 13352 and the This proposed regulation the DM in March 2004. The five NEPA
Council on Environmental Quality’s supplements the CEQ regulations and best practices that were first addressed
(CEQ) regulations. By converting the must be used in conjunction with those in ESMs were:
Departmental NEPA procedures from regulations. The bureaus of the
Department are required to use this ESM 03–3, Procedures for Implementing
the DM to new regulations that are
regulation when meeting their Tiered and Combined Analyses (http://
consistent with NEPA and the CEQ
responsibilities under NEPA. oepc.doi.gov/ESM/
regulations, the Department intends to
This proposed regulation meets the ESM03%2D3%2Epdf)
promote greater transparency in the
NEPA process for the public and intent of 40 CFR 1507.3 by placing Bureaus need to determine the
enhance cooperative conservation. agency-implementing procedures in a sufficiency of existing environmental
regulatory framework. We believe analyses. If an existing analyses is found
DATES: Submit comments by March 3,
placing agency explanatory guidance (as to be sufficient, those documents should
2008.
distinguished from agency be cited in the Record of Decision (ROD)
ADDRESSES: You may submit comments implementing procedures) into the DM, without doing additional and possibly
on the rulemaking by any of the Environmental Statement Memoranda duplicate analysis.
following methods. Please use the (ESM), which are Departmental
regulation identification number (RIN) guidance documents, and bureaus’ ESM 03–4, Procedures for Implementing
1090–AA95 as an identifier in your NEPA handbooks, will facilitate quicker Public Participation and Community-
message. See also ‘‘Public availability of agency responses to new ideas and Based Training (http://oepc.doi.gov/
comments’’ under Procedural information, procedural interpretations, ESM/ESM03%2D4%2Epdf)
Requirements below. training needs, and editorial changes. Public participation is the
• Federal eRulemaking Portal: http:// involvement, as early as possible, in the
www.regulations.gov. Follow the Reasons for an Improved
NEPA process of persons and
instructions for submitting comments. Environmental Analysis Process
organizations having an interest in any
• E-mail: This proposed regulation is the Departmental activity, which must meet
doi_nepa@contentanalysisgroup.com culmination and natural progression of the requirements of NEPA. Public
and use the RIN 1090–AA95 in the work begun in 2002 to improve our participation also includes the proactive
subject line. NEPA compliance process. Since the efforts of Departmental personnel to
• Fax: 801–397–2601. Identify with Department last updated its NEPA locate and involve the public.
RIN 1090–AA95. procedures, CEQ has issued guidance
• Mail comments to the Department the Department wishes to incorporate in ESM 03–5, Procedures for Implementing
of the Interior, NEPA Proposed Rule, its regulations. The concepts described Integrated Analyses in National
Environmental Policy Act (NEPA)
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C/O Bear West, 1584 S 500 W Ste 201, below are currently used, but there are
Woods Cross, UT 84010. Please no explicit provisions in the current Process (http://oepc.doi.gov/ESM/
reference RIN 1090–AA95 in your procedures. This proposed regulation ESM03%2D5%2Epdf)
comments and also include your name provides further guidance on NEPA by: The Department should integrate
and return address. (1) Integrating best practices elements analyses using a single NEPA process to
FOR FURTHER INFORMATION CONTACT: Dr. described in the series of ESMs that enable several agencies to satisfy
Vijai N. Rai, Team Leader, Natural were issued by the Department in 2003 multiple environmental requirements by

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Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules 127

conducting concurrent rather than Planning System. Throughout this time Because of this, millions of dollars,
consecutive analyses. frame, the Department has continually years of time, and tons of paper have
looked for ways to improve its NEPA been spent on documents that have little
ESM 03–6, Procedures for Implementing
compliance. For example, we’ve worked effect on decision-making.’’ The report
Adaptive Management Practices (http://
with the Department of Agriculture, points out that ‘‘some citizens’ groups
oepc.doi.gov/ESM/
U.S. Forest Service to make our and concerned individuals view the
ESM03%2D6%2Epdf)
procedures more consistent whenever NEPA process as largely a one-way
Adaptive management is a system of possible. communications track that does not use
management practices based on clearly At the 2005 White House Conference their input effectively’’ and ‘‘when they
identified outcomes, monitoring to on Cooperative Conservation (http:// are invited to a formal scoping meeting
determine if management actions are cooperativeconservation.gov/ to discuss a well-developed project
meeting outcomes, and, if not, conference805home.html), the about which they have heard little, they
facilitating management changes that Department heard many success stories may feel they have been invited too late
will best ensure that outcomes are met that involved various levels of in the process.’’ Finally, the report states
or to re-evaluate the outcomes. government working with the public ‘‘some citizens complain that their time
Although not explicitly mentioned in and private sectors to protect and and effort spent providing good ideas is
the CEQ regulations, adaptive enhance the environment. Many of not reflected in changes to proposals.’’
management can be considered as part these examples addressed issues we had As a part of its continuing efforts to
of a proposed action. The CEQ dealt with in our previous DM changes. streamline NEPA, CEQ established a
determined that the adaptive During the Listening Sessions (http:// NEPA Task Force in 2002 to review
management provisions in the DM, cooperativeconservation.gov/sessions/ current NEPA implementation practices
which are now included in this index.html), held as a follow up to the and procedures to determine
proposed regulation, are in conformity Conference, we heard many of the same opportunities to improve and modernize
with NEPA and the CEQ regulations. concerns regarding NEPA compliance as the NEPA process. The Task Force
ESM 03–7, Procedures for Implementing we had under our own review and prepared a report in 2003 entitled
Consensus-Based Management in reviews with the Forest Service. ‘‘Modernizing NEPA Implementation,’’
Almost 30 years ago CEQ stated in its (http://ceq.eh.doe.gov/ntf/report/
Agency Planning and Operations
preamble to the final NEPA index.html) where a number of
(http://oepc.doi.gov/ESM/
implementing regulations (43 FR 55978, recommendations were made to
ESM03%2D7%2Epdf)
November 29, 1978) that the EIS has improve and modernize the NEPA
Under this proposed rule, when ‘‘tended to become an end in itself, process. CEQ continues to issue
feasible and practicable, the community rather than a means to making better guidance based on the Modernizing
alternative should be designated as the decisions.’’ CEQ noted further: ‘‘One NEPA Implementation Report. The
bureau’s preferred alternative in the serious problem with the administration Department continues to be an active
NEPA process, so long as a consensus of NEPA has been the separation participant in this effort.
exists within the community for support between an agency’s NEPA process and A 2005 National Environmental
of that alternative. This designation is its decision-making process. In too Conflict Resolution Advisory Committee
also subject to statutory, regulatory, and many cases bulky EISs have been (NECRAC) Report chartered by the U.S.
policy constraints. As a practical prepared and transmitted but not used Institute for Environmental Conflict
consideration, ‘‘consensus’’ is by the decision-maker.’’ The innovation Resolution (http://www.ecr.gov/necrac/
ultimately determined by the at that time was a new requirement for reports.htm) of the Morris K. Udall
Responsible Official. a ROD to show ‘‘how the EIS was used Foundation reflected further on the state
Following the issuance of these ESMs, in arriving at the decision.’’ At that of the NEPA process 27 years after CEQ
the Department undertook the process time, CEQ broadened the focus from published its regulations and
of incorporating these concepts into its emphasis on a single document EIS to recommended furthering the evolution
DM. This process included a notice and ‘‘emphasize the entire NEPA process, of making procedural requirements
comment period for the public. from early planning through assessment under section 102 of NEPA less an end
Following that public comment period, and EIS preparation through decisions in themselves and more a means to
the Department finalized those and provisions for follow-up.’’ Today, fulfill the policies set out in section 101.
procedures (516 DM—Proposed Revised after receiving comments on a draft EIS, The report calls for improvements in the
Procedures, September 4, 2003, 68 FR agencies prepare a final EIS and ‘‘traditional model for NEPA
52595; Final, March 8, 2004, 69 FR document their decision in a ROD, tying implementation’’ where ‘‘agencies
10866) the analysis from the EIS to the final announce their plans, share their
In 2005, the Department, through agency decision. analyses of potential impacts of a range
another public notice and comment Almost 20 years later a CEQ report, of options, solicit public comment,
process (516 DM 2.5—Proposed, March ‘‘The National Environmental Policy make decisions, deal with the fallout, if
18, 2005, 70 FR 13203; Final, June 6, Act—A Study of Its Effectiveness After any, and move on to the next project.’’
2005, 70 FR 32840) implemented a Twenty-five Years’’ (January 1997; This model results in agency decisions
policy requiring that eligible Federal, http://ceq.eh.doe.gov/nepa/ ‘‘based on a collection of views and
State, Tribal, and local entities be nepa25fn.pdf) stated that ‘‘frequently interests’’ but ‘‘generally not a collective
invited to be cooperating agencies to NEPA takes too long and costs too decision.’’ The report goes on to state
assist in the preparation of any much, agencies make decisions before that while not a failure, the traditional
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Environmental Impact Statement (EIS). hearing from the public, documents are model for NEPA ‘‘does not take full
Also in 2005, the Department began a too long and technical for many people advantage of the many strengths of
Management Planning and NEPA to use’’ and according to Federal agency section 101.’’
Modernization Blueprint. This blueprint NEPA liaisons, ‘‘the EIS process is still The NECRAC recognized that
recommended Departmental functional frequently viewed as merely a ‘‘Americans expect to be able to work
requirements to be implemented in an compliance requirement rather than as a things out and make things better over
automated Interior Land Management tool to effect better decision-making. time. It is not inevitable, and it is clearly

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128 Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules

not desirable, that society’s ability to process. The agency is proposing new Federal agencies implement laws
constructively address and resolve NEPA procedures to allow content and relating to the environment and natural
conflicts should languish or fail to adapt circulation requirements for resources in a manner that promotes
to changing times. The current state of environmental documents to reflect how cooperation amongst interested parties,
environmental and natural resource agency decisions actually occur, with emphasis on appropriate inclusion
decision-making is dominated by the especially with more emphasis on of local participation in Federal
traditional model, which too often fails cooperation and collaboration. decision-making. As a result, the
to capture the breadth and quality of the This proposed regulation will help Federal government has placed
values and purposes of NEPA.’’ The the Department’s bureaus better increasing emphasis on ‘‘cooperating
NECRAC called for Federal decision- document environmental impacts of agencies,’’ ‘‘cooperative conservation,’’
making that ‘‘enables interested parties’’ proposed actions and their alternatives, environmental conflict resolution, and
to ‘‘engage more effectively in the and facilitate development of an EIS ‘‘collaboration’’ in agency planning,
decision-making process’’ where that evolves as the decision evolves and NEPA analysis, and decision-making.
‘‘interested parties are no longer merely therefore can be used throughout the The ongoing public involvement and
commenters on a Federal proposal, but entire NEPA process. Subsequent collaborative processes encouraged and
act as partners in defining Federal detailed statements could document practiced in the Department and other
plans, programs, and projects.’’ changes to the proposal, its agencies today can benefit from more
The 2005 NECRAC Report notes many alternative(s), and the environmental expressed flexibility than the agency
examples of the Federal government effects to reflect the on-going evolution NEPA procedures currently encourage.
placing an increased emphasis on to a final Department decision while Thus, these proposed changes to our
‘‘cooperating agencies’’ (CEQ keeping the Responsible Official and NEPA procedures are intended to
Memorandum for Heads of Federal interested parties informed. The EIS provide the Department, in cooperation
Agencies: Designation of Non-Federal would then be used as a tool to foster with other Federal, State, and local
Agencies to be Cooperating Agencies in collaborative and incremental decision- agencies, Tribes, and other interested
Implementing the Procedural making processes. The record would parties greater flexibility to meet the
Requirements of NEPA, July 28, 1999, reflect a history of how the detailed intent of NEPA through the procedural
http://ceq.eh.doe.gov/nepa/regs/ statement was used in collaboration and provisions of section 102(2) of NEPA.
ceqcoop.pdf; and CEQ Memorandum for incremental decision-making, and the As an example, this proposed regulation
Heads of Federal Agencies: Cooperating final draft and final EISs would address allows incremental alternative
Agencies in Implementing the a more narrowly focused Department development through scoping where the
Procedural Requirements of the action for a final decision. While this agency together with interested and
National Environmental Policy Act, proposed regulation does not require a affected members of the public are given
January 30, 2002, http://ceq.eh.doe.gov/ decision to be made collaboratively, it the opportunity to develop alternatives.
nepa/regs/cooperating/cooperating does allow the Department to meet the As a part of the conversion of the
agenciesmemorandum.html), procedural requirements of section 102 Department’s NEPA procedures from
‘‘cooperative conservation’’ (E.O. 13352 (2) of NEPA while fostering fulfillment 516 DM to the CFR, a number of key
on Facilitation of Cooperative of the Act’s purpose in section 101. changes will be made. This proposed
Conservation, August 26, 2004), The proposed NEPA procedures regulation:
environmental conflict resolution (CEQ designed to allow for better alignment of • Clarifies actions subject to NEPA
& OMB Memorandum on Environmental an EIS with Department decision- section 102(2) by locating all relevant
Conflict Resolution, November 28, 2005, making include: (1) Allowing proposals CEQ guidance in one place.
http://ceq.eh.doe.gov/nepa/regs/ and alternative(s) to be explored and • Amends current direction so that
OMB_CEQ_Joint_Statement.pdf), and modified throughout the NEPA process immediate emergency responses do not
‘‘collaboration’’ (Background and Other (46.415(b)(2)); and (2) allowing the require documentation under the CEQ
Cooperative Conservation Activities, circulation of multiple preliminary regulations or NEPA section 102(2). The
http://www.doi.gov/initiatives/ detailed statement(s) without filing Responsible Official must assess and
conservation2.html) in agency planning, requirements (46.415(c)(2)). minimize potential environmental
NEPA analysis, and decision-making. The intent is to use environmental damage to the extent consistent with
As the Department integrates the information effectively by multiple protecting life, property, and important
NEPA process into its collaborative and parties during the NEPA process rather resources.
cooperative decision-making process, than only at distinct comment periods • Incorporates CEQ guidance
the Department needs documentation for a draft and final impact statement. language that states that a past action
that reflects the way interactive and This is to allow interested parties to must be ‘‘relevant’’ in illuminating or
incremental decision-making occurs. inform Department decision-making as predicting direct and indirect effects of
There is a need to ensure that NEPA they regularly exchange and discuss a proposed action when conducting
documents are used in ‘‘arriving at the issues; differences; and necessary cumulative effects analysis.
decision.’’ In order to do this, environmental, social, and economic • Clarifies that alternatives, including
Department NEPA procedures need to effects analyses while alternatives are the proposed action, may be modified
reflect a more integrated process. As the explored, evaluated, and modified through an incremental process if
NECRAC Report points out, there throughout the NEPA process. The modifications are analyzed and
continues to be focus on preparing intent is to focus on a process and the documented.
NEPA documents such as an EIS or appropriate disclosure outlined in • Clarifies that the agency has
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Environmental Assessment (EA) for section 102 of NEPA to promote the discretion to determine, on a case-by-
litigation rather than to facilitate an Act’s purposes. case basis, how to involve the public in
informed decision process. The This proposed regulation is intended the preparation of EAs and whether an
proposed NEPA documentation to implement fully the intent and spirit EA will be published in draft for public
requirements are intended to enable of the E.O. 13352 on Facilitation of comment.
interested parties to engage more Cooperative Conservation. This E.O. • Clarifies that adaptive management
effectively in the decision-making was issued specifically to ensure that strategies may be incorporated into

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Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules 129

alternatives, including the proposed is subject to the procedural invites public comment on this issue.
action. requirements of NEPA. For instance, an EA prepared in support
• Incorporates language from the Section 46.105 Using a contractor to of an individual action can be tiered to
statute and CEQ guidance that states prepare environmental documents. This a programmatic or other broader EIS.
EAs need only analyze the proposed section explains how bureaus may use The Department is considering under
action if there are no unresolved a contractor to prepare any what conditions a FONSI may be
conflicts concerning alternative uses of environmental document in accordance reached for the individual action on the
available resources. with the standards of 40 CFR 1506.5. basis of such a tiered EA, if significant
This proposed regulation is organized Section 46.110 Using consensus- effects noted in that EA have already
under subparts A through E, covering based management. This section been disclosed and analyzed in the EIS
the material in 516 DM Chapters 1 incorporates consensus-based to which the EA is tiered. The FONSI,
through 6. The Department did not management as part of the NEPA in such circumstances would be, in
include 516 DM Chapter 7 in this planning process. effect, a finding of no significant impact
proposed regulation because it provides Section 46.113 Scope of the other than those already disclosed and
guidance on review of environmental analysis. This section addresses the analyzed in the EIS to which the EA is
documents and project proposals relationships between connected, tiered.
prepared by other Federal agencies. cumulative, and similar actions and Section 46.145 Using adaptive
Bureau-specific NEPA implementing direct, indirect and cumulative impacts. management. This section incorporates
procedures in 516 DM Chapters 8–15 Section 46.115 Consideration of past adaptive management as part of the
continue to be available for their actions in the cumulative effects NEPA planning process.
respective use. analysis. This section incorporates CEQ Section 46.150 Emergency
This proposed regulation does not guidance issued on June 24, 2005, that responses. This section clarifies that
include sections in the DM that clarifies how past actions should be Responsible Officials can take
generally provide guidance to bureaus. considered in a cumulative effects immediate actions in response to the
This guidance will be addressed analysis. immediate effects of emergencies
Section 46.120 Using existing necessary to mitigate harm to life,
separately in bureaus’ NEPA handbooks
environmental analyses. This section property, or important resources
or in other Departmental documents
explains how to incorporate existing without complying with the procedural
such as 516 DM and ESMs.
environmental analysis into the analysis requirements of NEPA, the CEQ
The following paragraphs contain a
being prepared. regulations, or this proposed regulation.
section-by-section analysis of key Section 46.125 Incomplete or
proposed changes under each subpart Furthermore, Responsible Officials can
unavailable information. This section take urgent actions to respond to the
from those currently in the 516 DM clarifies that the overall costs of immediate effects of an emergency
procedures. The Department has obtaining information referred to in 40 when there is not sufficient time to
highlighted key changes, including new CFR 1502.22 are not limited to the comply with the procedural
sections, under each subpart so that estimated cost of obtaining information requirements of NEPA, the CEQ
commenters can focus on the specific unavailable at the time of the EIS, but regulations, or this proposed regulation
changes proposed by the Department in can include other costs such as social by consulting with the Department (and
this proposed regulation. costs that are more difficult to monetize. CEQ in cases where the response action
Section-by-Section Analysis of Specifically the Department requests is expected to have significant
Proposed Changes comments on whether to provide environmental impacts) about
guidance on how to incorporate non- alternative arrangements.
Subpart A: General Information
monetized social costs into its Section 46.155 Consultation,
Section 46.30 Definitions. This determination of whether the costs of coordination, and cooperation with
section supplements the terms found in incomplete or unavailable information other agencies and organizations. This
the CEQ regulations and adds several are exorbitant. The Department also section describes the use of procedures
new definitions. The terms affected are requests comments on what non- to consult, coordinate, and cooperate
the following: Adaptive management; monetized social costs might be with relevant State, local, and tribal
Bureau; Community-based training; appropriate to include in this governments, other bureaus, and
Controversial; Environmental Statement determination; e.g., social-economic and Federal agencies concerning the
Memoranda; Environmentally preferable environmental (including biological) environmental effects of Department
alternative; Preliminary EIS; Reasonably costs of delay in fire risk assessments for plans, programs, and activities.
foreseeable future action; and high risk fire-prone areas. Section 46.160 Limitations on
Responsible Official. Section 46.130 Mitigation measures actions during the NEPA analysis
Subpart B: Protection and Enhancement in analyses. This section clarifies how process. This section incorporates
of Environmental Quality mitigation measures and environmental guidance to aid in fulfilling the
best management practices are to be requirements of 40 CFR 1506.1.
We removed portions of 516 DM incorporated into and analyzed as part Section 46.165 Ensuring public
Chapter 1 that address purely of the proposed action and its involvement. This section incorporates
Departmental processes. This alternatives. public information and involvement
information will be retained in the DM Section 46.135 Using incorporation requirements for Departmental proposed
or will be issued as additional guidance by reference. This section establishes actions that have potential
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by the Office of Environmental Policy regulations for incorporating by environmental impacts.


and Compliance. This subpart includes reference. Section 46.170 Environmental
the following sections: Section 46.140 Using tiered effects abroad of major Federal actions.
Section 46.100 Federal action documents. This section clarifies the This section describes procedures the
subject to the procedural requirements use of tiering. The Department is bureaus must follow in implementing
of NEPA. This section provides considering developing more specific E.O. 12114, which addresses the United
clarification on when a proposed action provisions as to the use of tiering, and States government’s exclusive and

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130 Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules

complete determination of the CXs: Extraordinary Circumstances as public involvement in the EA and EIS
procedural and other proposed actions were in the DM and the wording in the processes. This section requires bureaus
to be taken by Federal agencies to CXs: Extraordinary Circumstances is to provide notice when they are
further the purpose of NEPA, with essentially unchanged. Similarly to the proposing to undertake an action but
respect to the environment outside the listing of CXs, each of the Extraordinary gives bureaus discretion to determine
United States, its territories, and Circumstances was published for public the format for providing opportunities
possessions. comment prior to inclusion in the DM. for public involvement. It has been
The CXs: Extraordinary Circumstances expanded to give bureaus the discretion
Subpart C: Initiating the NEPA Process
are in paragraphs (a) through (l). to provide cooperating agency status for
In the conversion from 516 DM 2 to Section 46.220 How to designate EAs. It specifies that the publication of
43 CFR Part 46, Subpart C, we have lead agencies. This section provides a draft EA for public comment is not
restructured the Department’s specific detail regarding the selection of always required.
requirements for initiating the NEPA lead agencies. Section 46.310 Contents of an EA.
process. We have put into regulation the Section 46.225 How to select This section establishes new language
essential parts of the NEPA process that cooperating agencies. This section outlining what information must be
are unique to the Department and which establishes procedures for selecting included in an EA. It describes the
require further clarification of the CEQ cooperating agencies and determining requirements for alternatives, if any, and
regulations. This proposed regulation the roles of non-Federal agencies, such provides for incorporating adaptive
clarifies the requirements for applying as tribal governments, and the further management strategies in alternatives.
NEPA early, using categorical identification of eligible governmental Sections on tiered analysis, from 516
exclusions (CXs), designating lead entities for cooperating agency DM Chapter 3, are found in subpart B
agencies, determining eligible relationships. Criteria for identifying, of this proposed regulation since this
cooperating agencies, implementing the and procedures for defining, the roles of information pertains to both EISs and
Department’s scoping process, and cooperating agencies and the specific EAs.
adhering to time limits for the NEPA requirements to be carried out by Section 46.315 How to format an
process. cooperators in the NEPA process are set EA. This section provides clarification
Section 46.200 Applying NEPA forth in this section. on the EA format.
early. This section emphasizes early Section 46.230 Role of cooperating Section 46.320 Adopting EAs
consultation and coordination with agencies in the NEPA process. This prepared by another agency, entity, or
Federal, State, local, and Tribal entities section provides specific detail person. In this section, the term ‘‘and
and with interested private parties regarding the responsibilities of other program requirements’’ has been
whenever practical and feasible. cooperating agencies. added to the compliance stipulations. It
Section 46.205 Actions categorically Section 46.235 NEPA scoping also expands the requirements of the
excluded from further NEPA review. process. This section discusses the use Responsible Official in adopting an EA.
This section provides Department- of NEPA’s scoping requirements to Section 46.325 Conclusion of the EA
specific guidance on the use of CXs. engage the public in collaboration and process. This section has been added to
Section 46.210 Listing of consultation for the purpose of outline the possible conclusions of the
Departmental CXs. This section identifying concerns, potential impacts, EA process and to clarify the
includes a listing of the Department’s possible alternatives, and responsibilities of bureaus in the
CXs (currently 516 DM Chapter 2, interdisciplinary considerations. The documentation of such conclusions.
Appendix B–1). This section includes regulatory language encourages the use
the same number of CXs as were in the Subpart E: Environmental Impact
of communication methods for a more Statements
DM and the wording in the CXs is efficient and proactive approach to
essentially unchanged. These CXs were scoping. The language from 516 DM Chapter 4
each published for public comment Section 46.240 Establishing time that simply reiterates the CEQ
prior to inclusion in the DM. There is limits for the NEPA process. The section regulations is not included in subpart E
one change in § 46.210(i), which requires bureaus to establish time limits of this proposed regulation. These DM
replaces 516 DM Chapter 2, Appendix to make the NEPA process more sections are: statutory requirements,
B–1, Number 1.10, correcting a efficient. cover sheet, summary, purpose and
typographical error. The phase ‘‘ * * * need, appendix, methodology and
technical or procedural nature; or Subpart D: Environmental Assessments scientific accuracy, proposals for
* * *’’ from 516 DM as it existed in In the conversion from 516 DM legislation, and time periods. Sections
1984 was inadvertently changed in 2004 Chapter 3 to 43 Part 46 Subpart D, we on tiering, incorporation by reference,
in 516 DM to read ‘‘ * * * technical or have written this proposed regulation to incomplete or unavailable information,
procedural nature; and * * *’’. We have incorporate procedural changes, expand adaptive management, and contractor
corrected this error because there are upon existing procedures, give greater prepared environmental documents,
certain circumstances where NEPA does discretion and responsibilities to from 516 DM Chapter 4 are found in
not apply. For example, guidance to bureaus, and provide clarity in the EA subpart B of this proposed regulation
applicants for transferring funds process. since this information pertains to EISs
electronically to the Federal Section 46.300 Purpose of an EA and EAs. The term ‘‘environmentally
Government is an action not subject to and when it must be prepared. This preferred alternative’’ is found in the
NEPA. The CXs are in paragraphs (a) section clarifies that the action being definitions, subpart A. This phrase
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through (l). analyzed is a ‘‘proposed’’ action. It expands on the definition as currently


Section 46.215 CXs: Extraordinary expands upon the purpose and clarifies exists in 516 DM 4.10(A)(5). This
circumstances. This section contains a when to prepare an EA. proposed regulation incorporates
listing of the Department’s CXs: Section 46.305 Public involvement procedural changes, clarifies the extent
Extraordinary Circumstances (currently in the EA process. This section of discretion and responsibility that may
516 DM Chapter 2, Appendix B–2). This incorporates procedural changes and be exercised by bureaus and provides
section includes the same number of differentiates the requirements for clarity in the EIS process.

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Section 46.400 Timing of EIS agencies, or tribal governments, and the Moving NEPA procedures from the
development. This section provides public at large. This section also DM to the CFR is expected to provide
specific detail regarding when an EIS clarifies that bureaus do not have to a variety of potential beneficial effects.
must be prepared. The Department is delay a final EIS because they have not This rule would meet the requirements
considering developing more specific received comments. of 40 CFR 1507.3 by placing
provisions as to the timing of EIS Section 46.440 Eliminating Department’s implementing procedures
preparation, and invites public duplication with State and local in their proper regulatory position.
comment on this issue. For example, procedures. This section allows a State Maintaining Departmental explanatory
courts have stated that NEPA requires agency to jointly prepare an EIS, if guidance in directives would facilitate
an agency to complete its evaluation of applicable. timely agency responses to new ideas
the environmental effects before making Section 46.445 Preparing a and information, procedural
its decision, which is prior to the point legislative EIS. This section ensures that interpretations, training needs, and
of commitment to any action which a legislative EIS is included as a part of editorial changes to addresses and
results in an irreversible and the formal transmittal of a legislative internet links to assist bureaus when
irretrievable commitment of resources. proposal to the Congress. implementing the NEPA process.
Specifically, we are seeking comments Section 46.450 Identifying the Finally, the proposed changes to the
with respect to whether guidance environmentally preferable alternative. Department NEPA procedures are
should be developed to assist the This section provides for identifying the intended to provide the Department
Responsible Official toward identifying environmentally preferable alternative specific options to meet the intent of
the point prior to the decision. We are in the ROD. NEPA through collaboration, the
also soliciting comments on whether it establishment of incremental alternative
would be helpful to include in Procedural Requirements development, and the use of adaptive
paragraph (a) examples of a major Regulatory Planning and Review (E.O. management principles.
Federal action significantly affecting the 12866) Thus, while no single effect of this
quality of the human environment. proposed rule creates a significant
Section 46.405 Remaining within The Office of Management and Budget
quantifiable improvement, the benefits
page limits. This section encourages (OMB) has determined that this rule:
outlined above taken together create the
bureaus to keep EISs within the page (1) Is not an economically significant
potential for visible improvements in
limits described in the CEQ regulations action because it will not have an
the Department’s NEPA program.
using incorporation by reference and annual effect of $100 million or more on
Further discussion of the cost-benefits
tiering. the economy nor adversely affect
associated with the proposed regulation
Section 46.415 EIS format. This productivity, competition, jobs, the
is contained in the economic analysis
section establishes an alternative EIS environment, public health or safety,
which is incorporated in the
format. This section also provides nor state or local governments.
administrative record for this proposed
direction for the development of (2) Will not interfere with an action
rulemaking and may be accessed on the
alternatives, establishes language on the taken or planned by another agency.
Department’s Office of Environmental
documentation of environmental effects (3) Will not alter the budgetary impact
Policy and Compliance Web site located
with a focus on NEPA statutory of entitlements, grants, user fees, or loan
at: http://www.doi.gov/oepc.
requirements, and provides direction for programs or the rights and obligations of
circulating and filing the draft and final recipients of such programs. Regulatory Flexibility Act
EIS. (4) Is a significant rulemaking action The Department certifies that this
Section 46.420 Terms used in an subject to OMB review because of the document will not have a significant
EIS. This section describes terms that extensive interest in Department economic effect on a substantial number
are commonly used to describe concepts planning and decision making relating of small entities under the Regulatory
or activities in an EIS, including: (a) to NEPA. Flexibility Act (5 U.S.C. 601 et seq.).
Statement of purpose and need, (b) In accordance with the Office of This document provides the Department
Reasonable alternatives, (c) Range of Management and Budget (OMB) with policy and procedures under
alternatives, (d) Proposed action, (e) Circular A–4, ‘‘Regulatory Analysis,’’ NEPA and does not compel any other
Preferred alternative, and (f) No action the Department has conducted a cost/ party to conduct any action.
alternative. benefit analysis. The analysis compared
Section 46.425 Identification of the the costs and benefits associated with Small Business Regulatory Enforcement
preferred alternative in an EIS. This the current condition of having Fairness Act (SBREFA)
section clarifies when the preferred Departmental implementing procedures This rule is not a major rule under 5
alternative must be identified. combined with Departmental U.S.C. 804(2), the SBREFA. This rule:
Section 46.430 Environmental explanatory guidance in the DM and the a. Does not have an annual effect on
review and consultation requirements. proposed condition of having the economy of $100 million or more.
This section establishes procedures for implementing direction in regulation As explained above, this rule will not
an EIS that also addresses other and explanatory guidance in the DM. have an annual effect on the economy
environmental review requirements and Many benefits and costs associated of $100 million or more and is expected
approvals. It should be noted that this with the proposed rule are not to have no significant economic
section allows for the completion of the quantifiable. Some of the benefits of this impacts.
NEPA analysis prior to obtaining all rule include collaborative and b. Will not cause a major increase in
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permits. However, if the terms of the participatory public involvement to costs or prices for consumers;
permit are outside of the scope more fully address public concerns, individual industries; Federal, State,
analyzed, additional NEPA analysis will timely and focused environmental Tribal, or local government agencies; or
be required. analysis, flexibility in preparation of geographic regions. Compliance with
Section 46.435 Inviting comments. environmental documents, and NEPA and supplementing the CEQ
This section requires bureaus to request improved legal standing. These will be regulations will not affect costs or
comments from Federal, State, and local positive effects of the new rule. prices.

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132 Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules

c. Does not have significant adverse (c) Meets the criteria of section 3(b)(2) —Use the active voice to address
effects on competition, employment, requiring that all regulations be written readers directly;
investment, productivity, innovation, or in clear language and contain clear legal —Use clear language rather than jargon;
the ability of U.S.-based enterprises to standards. —Be divided into short sections and
compete with foreign-based enterprises. sentences; and
Consultation With Indian Tribes (E.O. —Use lists and tables wherever
Compliance with NEPA and
13175) possible.
supplementing CEQ regulations in this
rule should have no effects, adverse or In accordance with E.O. 13175 of If you feel that we have not met these
beneficial, on competition, employment, November 6, 2000, and 512 DM 2, we requirements, send us comments as
investment, productivity, innovation, or have assessed this document’s impact instructed in the ADDRESSES section. To
the ability of United States-based on Tribal trust resources and have better help us revise the rule, your
enterprises to compete with foreign determined that it does not directly comments should be as specific as
based enterprises. affect Tribal resources since it describes possible. For example, you should tell
the Department’s procedures for its us the numbers of the sections or
Unfunded Mandates Reform Act
compliance with NEPA. paragraphs that you find unclear, which
Under Title II of the Unfunded sections or sentences are too long, the
Paperwork Reduction Act
Mandates Reform Act of 1995 (2 U.S.C. sections where you think lists or tables
1531–1538), the Department has This rule does not require an would be useful, etc.
assessed the effects of this proposed rule information collection from 10 or more
on State, local, and tribal governments parties and a submission under the Public Availability of Comments
and the private sector. This proposed Paperwork Reduction Act is not Before including your address, phone
rule does not compel the expenditure of required. An OMB form 83–I is not number, e-mail address, or other
$100 million or more by any State, local, required. personal identifying information in your
or tribal government or anyone in the comment, you should be aware that
National Environmental Policy Act your entire comment—including your
private sector. Therefore, a statement
under section 202 of the Act is not The CEQ does not direct agencies to personal identifying information—may
required. prepare a NEPA analysis or document be made publicly available at any time.
before establishing agency procedures While you can ask us in your comment
Takings (E.O. 12630) to withhold your personal identifying
that supplement the CEQ regulations for
This proposed rule has been analyzed implementing NEPA. Agency NEPA information from public review, we
in accordance with the principles and procedures are procedural guidance to cannot guarantee that we will be able to
criteria contained in E.O. 12630, assist agencies in the fulfillment of do so.
Governmental Actions and Interference agency responsibilities under NEPA, but List of Subjects in 43 CFR Part 46
with Constitutionally Protected Property are not the agency’s final determination
Rights, and it has been determined that of what level of NEPA analysis is Environmental protection, EISs.
the proposed rule does not pose the risk required for a particular proposed James E. Cason,
of a taking of Constitutionally protected action. The requirements for Associate Deputy Secretary.
private property. establishing agency NEPA procedures For the reasons given in the preamble,
are set forth at 40 CFR 1505.1 and the Office of the Secretary proposes to
Federalism (E.O. 13132)
1507.3. The determination that add a new part 46 to Subtitle A of title
The Department has considered this establishing agency NEPA procedures 43 of the Code of Federal Regulations to
proposed rule under the requirements of does not require NEPA analysis and read as follows:
E.O. 13132, Federalism. The Department documentation has been upheld in
has concluded that the proposed rule Heartwood, Inc. v. U.S. Forest Service, PART 46—IMPLEMENTATION OF THE
conforms with the federalism principles 73 F. Supp. 2d 962, 972–73 (S.D. III. NATIONAL ENVIRONMENTAL POLICY
set out in this E.O.; will not impose any 1999), aff’d 230 F.3d 947. 954–55 (7th ACT OF 1969
compliance costs on the States; and will Cir. 2000).
not have substantial direct effects on the Sec.
Data Quality Act
States or the relationship between the Subpart A—General Information
national government and the States, or In developing this rule we did not 46.10 Purpose of this part.
on the distribution of power and conduct or use a study requiring peer 46.20 How to use this part.
responsibilities among the various review under the Data Quality Act (Pub. 46.30 Definitions.
levels of government. Therefore, the L. 106–554).
Subpart B—Protection and Enhancement of
Department has determined that no
Effects on the Energy Supply (E.O. Environmental Quality
further assessment of federalism
13211) 46.100 Federal action subject to the
implications is necessary.
procedural requirements of NEPA.
This rule is not a significant energy
Civil Justice Reform (E.O. 12988) 46.105 Using a contractor to prepare
action under the definition in E.O. environmental documents.
This rule complies with the 13211. A Statement of Energy Effects is 46.110 Using consensus-based
requirements of E.O. 12988. not required. management.
Specifically, this rule: Clarity of This Proposed Regulation 46.113 Scope of the analysis.
46.115 Consideration of past actions in the
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(a) Does not unduly burden the


judicial system; We are required by E.O.s 12866 and cumulative effects analysis.
12988 and by the Presidential 46.120 Using existing environmental
(b) Meets the criteria of section 3(a) analyses.
requiring that all regulations be Memorandum of June 1, 1998, to write
46.125 Incomplete or unavailable
reviewed to eliminate errors and all rules in plain language. This means
information.
ambiguity, and be written to minimize that each rule we publish must: 46.130 Mitigation measures in analyses.
litigation; and —Be logically organized; 46.135 Using incorporation by reference.

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Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules 133

46.140 Using tiered documents. § 46.20 How to use this part. (c) During the decisionmaking process
46.145 Using adaptive management. (a) This part supplements, and is to be for each proposal subject to this part,
46.150 Emergency responses. used in conjunction with, the CEQ the Responsible Official shall consider
46.155 Consultation, coordination, and
cooperation with other agencies and
regulations except where it is the relevant NEPA documents, public
organizations. inconsistent with other statutory and agency comments (if any) on those
46.160 Limitations on actions during the requirements. The following table documents, and responses to those
NEPA analysis process. shows the corresponding CEQ comments, as part of consideration of
46.165 Ensuring public involvement. regulations for the sections in subparts the proposal and with the exception of
46.170 Environmental effects abroad of A–E of this part. Some sections in those § 46.210(a) through (j), shall include
major Federal actions. subparts do not have a corresponding such documents, including
Subpart C—Initiating the NEPA Process CEQ regulation. supplements, comments, and responses
46.200 Applying NEPA early. as part of the administrative record.
46.205 Actions categorically excluded from 40 CFR (d) The Responsible Official’s
further NEPA review. decision on a proposed action shall be
46.210 Listing of Departmental CXs. Subpart A: within the range of alternatives
46.215 CXs: Extraordinary circumstances. 46.10 ......... Parts 1500–1508.
46.20 ......... No corresponding CEQ regu-
discussed in the relevant environmental
46.220 How to designate lead agencies. document.
46.225 How to select cooperating agencies. lation.
46.30 ......... No corresponding CEQ regu- (e) For situations involving an
46.230 Role of cooperating agencies in the
NEPA process. lation. applicant, the Responsible Official
46.235 NEPA scoping process. Subpart B: should initiate the NEPA process upon
46.240 Establishing time limits for the 46.100 ....... 1508.14, 1508.18, 1508.23 acceptance of an application for a
NEPA process. 46.105 ....... 1506.5 proposed Federal action. The
46.110 ....... No corresponding CEQ regu- Responsible Official shall make policies
Subpart D—Environmental Assessments lation. or staff available to advise potential
46.300 Purpose of an EA and when it must 46.113 ....... 1508.25
46.115 ....... 1508.7 applicants of studies or other
be prepared.
46.305 Public involvement in the EA 46.120 ....... 1502.9, 1502.20, 1502.21, information foreseeably required for
process. 1506.3 later Federal action.
46.310 Contents of an EA. 46.125 ....... 1502.22
46.130 ....... 1502.14 § 46.30 Definitions.
46.315 How to format an EA.
46.320 Adopting EAs prepared by another 46.135 ....... 1502.21 For purposes of this part, the
agency, entity, or person. 46.140 ....... 1502.20 following definitions supplement terms
46.325 Conclusion of the EA process. 46.145 ....... No corresponding CEQ regu- defined at 40 CFR parts 1500–1508.
lation. Adaptive management is a system of
Subpart E—Environmental Impact 46.150 ....... 1506.11
Statements management practices based on clearly
46.155 ....... 1502.25, 1506.2
46.160 ....... 1506.1
identified outcomes and monitoring to
46.400 Timing of EIS development.
46.405 Remaining within page limits. 46.165 ....... 1506.6 determine if management actions are
46.415 EIS format. 46.170 ....... No corresponding CEQ regu- meeting desired outcomes; and, if not,
46.420 Terms used in an EIS. lation. facilitating management changes that
46.425 Identification of the preferred Subpart C: will best ensure that outcomes are met
alternative in an EIS. 46.200 ....... 1501.2 or re-evaluated. Adaptive management
46.430 Environmental review and 46.205 ....... 1508.4 recognizes that knowledge about natural
consultation requirements. 46.210 ....... 1508.4 resource systems is sometimes
46.435 Inviting comments. 46.215 ....... 1508.4
46.440 Eliminating duplication with State 46.220 ....... 1501.5 uncertain.
and local procedures. 46.225 ....... 1501.6 Bureau means bureau, office, service,
46.445 Preparing a legislative EIS. 46.230 ....... 1501.6 or survey.
46.450 Identifying the environmentally 46.235 ....... 1501.7 Community-based training in the
preferable alternative. 46.240 ....... 1501.8 NEPA context is the training of local
Subpart D: participants together with Federal
Authority: 42 U.S.C. 4321, et seq. (The
46.300 ....... 1501.3 participants in the intricacies of the
National Environmental Policy Act of 1969,
46.305 ....... 1501.7, 1506.6 environmental planning effort as it
as amended); Executive Order 11514, 46.310 ....... 1508.9
(Protection and Enhancement of 46.315 ....... No corresponding CEQ regu-
relates to the local community(ies).
Environmental Quality (March 5, 1970, as
lation. Controversial refers to cases where a
amended by Executive Order 11991, May 24, substantial dispute exists as to the size,
46.320 ....... 1506.3
1977)); 40 CFR parts 1500–1508 (43 FR nature, or effect of the proposed action
46.325 ....... 1505.1
55978) (National Environmental Policy Act, rather than to the existence of
Subpart E:
Implementation of Procedural Provisions).
46.400 ....... 1502.5 opposition to a proposed action, the
46.405 ....... 1502.7 effect of which is relatively undisputed.
Subpart A—General Information 46.415 ....... 1502.10 Environmental Statement Memoranda
§ 46.10 Purpose of this part. 46.420 ....... 1502.14 (ESM) are a series of instructions to
46.425 ....... 1502.14
This part establishes procedures for provide information and guidance in the
46.430 ....... 1502.25
the Department, and its constituent 46.435 ....... 1503.1 preparation, completion, and circulation
bureaus, to use for compliance with: 46.440 ....... 1506.2 of NEPA documents.
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(a) The National Environmental 46.445 ....... 1506.8 Environmentally preferable


Policy Act (NEPA) of 1969, as amended 46.450 ....... 1505.2 alternative is the alternative required by
(42 U.S.C. 4321, et seq.); and 40 CFR 1505.2(b) to be identified in a
(b) The Council on Environmental (b) The Responsible Official shall ROD, that causes the least damage to the
Quality (CEQ) regulations for coordinate the appropriate NEPA review biological and physical environment
implementing the procedural provisions with the decisionmaking process for and best protects, preserves, and
of NEPA (40 CFR parts 1500–1508). proposals subject to this part. enhances historical, cultural, and

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134 Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules

natural resources. The Responsible § 46.105 Using a contractor to prepare indirect and cumulative impacts of the
Official must consider and weigh long- environmental documents. proposed Federal action.
term environmental impacts against A bureau may use a contractor to
short-term impacts in evaluating what is § 46.115 Consideration of past actions in
prepare any environmental document in the cumulative effects analysis.
the best protection of these resources. In accordance with the standards of 40
some situations, there may be more than When considering the effects of past
CFR 1506.5(b) and (c). If a bureau uses
one environmentally preferable actions as part of a cumulative effects
a contractor, the bureau remains
alternative. analysis, the Responsible Official must
responsible for:
analyze the effects in accordance with
Preliminary environmental impact (a) Preparation and adequacy of the guidance established by CEQ:
statement is an interim environmental environmental documents; and (a) The analysis of cumulative effects
document that a Responsible Official (b) Independent evaluation of the begins with consideration of the direct
may use to initiate discussion, solicit environmental documents after their and indirect effects on the environment
comments, and inform interested parties completion. that are expected or likely to result from
and agency personnel while proposals, the alternative proposals for bureau
alternatives, and environmental effects § 46.110 Using consensus-based
management. action. Bureaus then look for present
are explored and considered prior to effects of past actions that are, in the
filing a draft or final EIS. A preliminary (a) For the purposes of this Part, judgment of the bureau, relevant and
EIS is an option available for consensus-based management is the useful because they have a significant
Responsible Official to use and is not inclusion of interested parties with an cause-and-effect relationship with the
required. assurance for the participants that the direct and indirect effects of the
Reasonably foreseeable future actions results of their work will be given proposal for bureau action and its
include those activities not yet consideration by the Responsible alternatives. CEQ regulations do not
undertaken, for which there are existing Official in selecting a course of action. require the consideration of the
decisions, funding, or proposals (b) In practicing consensus-based individual effects of all past actions to
identified by the agency. management, bureaus should give full determine the present effects of past
Responsible Official is the bureau consideration to any reasonable actions. Once the bureau has identified
employee who exercises the authority to alternative(s) put forth by participating those present effects of past actions that
make and implement a decision on a interested parties. While there can be no warrant consideration, the bureau
proposed action. guarantee that a community’s proposed assesses the extent that the effects of the
alternative will be taken as the agency proposal for bureau action or its
Subpart B—Protection and proposed action, bureaus must be able alternatives will add to, modify, or
Enhancement of Environmental Quality to show that a community’s work is mitigate those effects. The final analysis
reflected in the evaluation of the documents a bureau assessment of the
§ 46.100 Federal action subject to the proposed action and the final decision.
procedural requirements of NEPA. cumulative effects of the actions
To be considered, the community’s considered (including past, present, and
(a) The determination of whether a alternative must be fully consistent with reasonably foreseeable future actions)
proposed action is subject to the NEPA, the CEQ Regulations, and all on the affected environment.
procedural requirements of NEPA applicable Departmental and bureau (b) With respect to past actions,
depends on the extent to which bureaus written policies and guidance. during the scoping process and
exercise control and responsibility over subsequent preparation of the analysis,
the proposed action and whether § 46.113 Scope of the analysis.
the bureau must determine what
Federal funding or approval will be To determine the scope of the NEPA information regarding past actions is
provided to implement it. If Federal analysis and documentation for a useful and relevant to the required
funding is provided in the form of proposed action, bureaus shall consider analysis of cumulative effects.
general revenue sharing funds with no whether, to what extent, and how they Cataloging past actions and specific
Federal agency control as to the will analyze connected, cumulative, and information about the direct and
expenditure of such funds by the similar actions. The NEPA document indirect effects of their design and
recipient, NEPA compliance is not should contain discussions of the effects implementation could in some contexts
necessary. of connected and cumulative actions, be useful to predict the cumulative
(b) A bureau proposal is a Federal and may contain discussions of the effects of the proposal. The CEQ
action and subject to the procedural effects of similar actions. For example, regulations, however, do not require
requirements of NEPA when it meets all when the proposed Federal action bureaus to catalogue or exhaustively list
of the following criteria: determines the location or design of a and analyze all individual past actions.
(1) The bureau has a goal and is non-Federal connected action, the Simply because information about past
actively preparing to make a decision on effects of that connected action should actions may be available or obtained
one or more alternative means of be included in the discussion of the with reasonable effort does not mean
accomplishing that goal; indirect impacts of the proposed Federal that it is relevant and necessary to
action. The effects of non-Federal and inform decisionmaking.
(2) The proposed action is subject to Federal cumulative actions and actions
bureau control and responsibility (40 with cumulative effects on the same § 46.120 Using existing environmental
CFR 1508.18); resource values affected by the proposed analyses.
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(3) The proposed action would cause Federal action should be included in the (a) The Responsible Official should
effects on the human environment (40 discussion of the cumulative impacts of use existing analyses for assessing the
CFR 1508.14) that can be meaningfully the proposed Federal action. A non- impacts of a proposed action and any
evaluated (40 CFR 1508.23); and Federal connected action that impacts alternatives as allowed by this section.
(4) The proposed action is not the same resource values affected by the (b) If existing analyses include data
statutorily exempt from the proposed Federal action should be and assumptions appropriate for the
requirements of section 102(2) of NEPA. included in the discussion of the analysis at hand, the Responsible

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Federal Register / Vol. 73, No. 1 / Wednesday, January 2, 2008 / Proposed Rules 135

Official should use the existing analyses environmental effects described in the paragraph (b) of this section, are not
where feasible. broader NEPA document are still valid. likely to have significant environmental
(c) An existing environmental (a) Where the impacts of the narrower impacts, the Responsible Official shall
analysis may be used if the Responsible action are identified and analyzed in the document that determination in an EA
Official determines, with appropriate broader NEPA document, no further and finding of no significant impact
supporting documentation, that it analysis is necessary. (FONSI) prepared in accordance with
adequately assesses the environmental (b) To the extent that any relevant this regulation, unless categorically
effects of the proposed action and analysis in the broader NEPA document excluded (subpart C of this part). If the
reasonable alternatives. The supporting is out-of-date or otherwise inadequate, Responsible Official finds that the
record must include an evaluation of the tiered NEPA document must explain nature and scope of the subsequent
whether new circumstances, new this and provide any necessary analysis. actions related to the emergency require
information, changes in the action or its (c) Bureaus will review their existing taking such proposed actions prior to
impacts not previously analyzed, guidance concerning the use of tiering, completing an EA and FONSI, the
warrant new analysis. and ascertain whether additional Responsible Official shall consult with
(d) Bureaus should make the best use guidance is needed. Guidance must the Department about alternative
of existing NEPA documents and avoid include, but is not limited to, guidance arrangements for NEPA compliance.
redundancy and unneeded paperwork on finding and using similar Consultation with the Department must
through supplementing, incorporating information, examples of tiered be coordinated through the appropriate
by reference, or adopting previous analyses, a set of procedural steps to bureau’s office.
environmental analyses. make the most of tiered analyses, (d) If the Responsible Official
knowledge of when to use previous determines that proposed emergency
§ 46.125 Incomplete or unavailable material, and how to use tiered analyses actions, beyond actions noted in
information. without sacrificing references to original paragraph (b) of this section, are likely
In 40 CFR 1502.22, the over-all costs sources. to have significant environmental
of obtaining information being impacts, then the Responsible Official
exorbitant refers not only to monetary § 46.145 Using adaptive management.
shall consult with CEQ, through the
costs, but can include other non- Bureaus should use adaptive appropriate bureau office and the
monetized social costs when management as part of their decision Department, about alternative
appropriate. making processes, as appropriate, arrangements as soon as possible.
particularly in circumstances where Alternative arrangements address the
§ 46.130 Mitigation measures in analyses. long-term impacts may be uncertain and proposed actions necessary to control
The analysis of the proposed action future monitoring will be needed to the immediate impacts of the
and any alternatives must include an make necessary adjustments in emergency. Other proposed actions
analysis of the effects of the proposed subsequent implementation decisions. remain subject to NEPA analysis and
action or alternative without additional The NEPA analysis conducted in documentation in accordance with this
mitigation as well as analysis of the support of a bureau’s decision to adopt regulation.
effects of any other appropriate an adaptive management approach
mitigation measures or best should identify the range of § 46.155 Consultation, coordination, and
management practices that are management options that may be taken cooperation with other agencies and
considered for addition to the proposed in response to the results of monitoring, organizations.
action or alternatives. The additional and should analyze the effects of such (a) The Responsible Official must
mitigation measures can be analyzed options. The environmental effects of whenever possible:
either as elements of alternatives or in any adaptive management strategy must (1) Consult, coordinate, and cooperate
a separate discussion of mitigation. be evaluated in this or subsequent with relevant State, local, and tribal
NEPA analysis. governments and other bureaus and
§ 46.135 Using incorporation by reference. Federal agencies concerning the
(a) The Responsible Official must § 46.150 Emergency responses. environmental effects of bureau plans,
determine that the analysis and (a) If the Responsible Official programs, and activities within the
assumptions used in the reference determines that an emergency exists jurisdictions or related to the interests of
document are appropriate for the that makes it necessary to take these outside entities; and
analysis at hand. emergency actions before completing a (2) Include consensus-based
(b) Citations of specific information or NEPA analysis and documentation in management (see § 46.110) and, when
analysis from other source documents accordance with the provisions in doing so, comply with the applicable
must include the pertinent page subparts D and E of this part, then these provisions of the Federal Advisory
numbers. provisions apply. Committee Act (FACA).
(c) All literature references must be (b) The Responsible Official may take (b) Bureaus must develop procedures
listed in the bibliography. Literature emergency actions necessary to control to implement this section.
references that are incorporated by the immediate impacts of the emergency
reference shall be readily available for to mitigate harm to life, property, or § 46.160 Limitations on actions during the
review; literature references that are not important resources. When taking such NEPA analysis process.
readily available shall be made available actions, the Responsible Official shall During the preparation of a program
for review as part of the administrative take into account the probable or plan NEPA document, the
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record supporting the proposed action. environmental consequences of the Responsible Official may undertake any
emergency action and mitigate major Federal action within the scope
§ 46.140 Using tiered documents. foreseeable adverse environmental of, and analyzed in the existing NEPA
A NEPA document that tiers to a effects to the extent practical. document supporting the current plan
broader NEPA document in accordance (c) If the Responsible Official or program, so long as there is adequate
with 40 CFR 1508.28 must include a determines that proposed emergency NEPA documentation to support the
finding that the conditions and actions, beyond actions noted in individual action.

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§ 46.165 Ensuring public involvement. (c) Bureaus should provide, where (b) Internal organizational changes
Bureaus should develop and practicable, any appropriate and facility and bureau reductions and
implement procedures in accordance community-based training to reduce closings.
with this part to ensure: costs, prevent delays, and facilitate and (c) Routine financial transactions
(a) The fullest practical provision of promote efficiency in the NEPA process. including such things as salaries and
timely public information about bureau (d) Bureaus should inform private or expenses, procurement contracts (e.g.,
proposed actions that have non-Federal applicants, to the extent in accordance with applicable
environmental impacts, including feasible, of: procedures and Executive Orders for
information on the environmental (1) Any appropriate environmental sustainable development or green
impacts of alternative courses of action; information that the applicants must procurement), guarantees, financial
and include in their applications; and assistance, income transfers, audits,
(b) Appropriate public involvement in (2) Any consultation with other fees, bonds, and royalties.
the development of NEPA analyses and Federal agencies, or State, local, or tribal (d) Departmental legal activities
documents. governments that the applicant must including, but not limited to, such
accomplish before or during the things as arrests, investigations, patents,
§ 46.170 Environmental effects abroad of
major Federal actions. application process. claims, and legal opinions. This does
not include bringing judicial or
(a) In order to facilitate informed and § 46.205 Actions categorically excluded administrative civil or criminal
responsible decision-making, the from further NEPA review. enforcement actions which are outside
Responsible Official having ultimate
CXs are a group of actions that have the scope of NEPA in accordance with
responsibility for authorizing and
no significant individual or cumulative 40 CFR 1508.18(a).
approving proposed actions (e) Nondestructive data collection,
encompassed by the provisions of effect on the quality of the human
environment. inventory (including field, aerial, and
Executive Order (E.O.) 12114 shall
(a) Except as provided in paragraph satellite surveying and mapping), study,
follow the provisions and procedures of
(c) of this section, if an action is covered research, and monitoring activities.
that E.O. E.O. 12114 represents the (f) Routine and continuing
United States government’s exclusive by a Departmental CX, the bureau is not
required to prepare an EA (see subpart government business, including such
and complete determination of the things as supervision, administration,
procedural and other proposed actions D of this part) or an EIS (see subpart E
of this part). operations, maintenance, renovations,
to be taken by Federal agencies to
(b) The actions listed in § 46.210 are and replacement activities having
further the purpose of NEPA, with
categorically excluded, Department- limited context and intensity (e.g.,
respect to the environment outside the
wide, from preparation of EAs or EISs. limited size and magnitude or short-
United States, its territories, and
(c) The CEQ Regulations at 40 CFR term effects).
possessions. (g) Management, formulation,
(b) When implementing E.O. 12114, 1508.4 require agency procedures to
allocation, transfer, and reprogramming
bureaus shall coordinate with the provide for extraordinary circumstances
of the Department’s budget at all levels.
Department. The Department shall then in which a normally excluded action
(This does not exclude the preparation
consult with the Department of State, may have a significant environmental
of environmental documents for
which shall coordinate all effect and require additional analysis
communications by the Department proposals included in the budget when
and action. Section 46.215 lists the
with foreign governments concerning otherwise required.)
extraordinary circumstances under (h) Legislative proposals of an
environmental agreements and other which actions otherwise covered by a administrative or technical nature
arrangements in implementing E.O. CX require analyses under NEPA. (including such things as changes in
12114. (1) Any action that is normally authorizations for appropriations and
categorically excluded must be minor boundary changes and land title
Subpart C—Initiating the NEPA evaluated to determine whether it meets
Process transactions) or having primarily
any of these extraordinary economic, social, individual, or
§ 46.200 Applying NEPA early. circumstances, in which case, further institutional effects; and comments and
(a) For any proposed Federal action analysis and environmental documents reports on referrals of legislative
(40 CFR 1508.23 and 1508.18) that may must be prepared for the action. proposals.
have environmental impacts, bureaus (2) Bureaus must work within existing (i) Policies, directives, regulations,
must coordinate, as early as feasible, administrative frameworks, including and guidelines:
with: any existing programmatic agreements, (1) That are of an administrative,
(1) Any other bureaus or Federal when deciding how to apply any of the financial, legal, technical, or procedural
agencies, State, local, and tribal § 46.215 extraordinary circumstances. nature; or
governments having jurisdiction by law (d) Congress may establish CXs by (2) Whose environmental effects are
or special expertise; and legislation, in which case the terms of too broad, speculative, or conjectural to
(2) Appropriate Federal, State, local, the legislation determine how to apply lend themselves to meaningful analysis
and tribal governments authorized to the CX. and will later be subject to the NEPA
develop and enforce environmental process, either collectively or case-by-
standards or to manage and protect § 46.210 Listing of Departmental CXs.
case.
natural resources or other aspects of the The following actions are (j) Activities which are educational,
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human environment. categorically excluded under informational, advisory, or consultative


(b) Bureaus must solicit the § 46.205(b), unless any of the to other agencies, public and private
participation of all interested parties extraordinary circumstances in § 46.215 entities, visitors, individuals, or the
and organizations as early as possible, apply: general public.
such as at the time an application is (a) Personnel actions and (k) Hazardous fuels reduction
received, or when the bureau initiates investigations and personnel services activities using prescribed fire not to
the NEPA process for a proposed action. contracts. exceed 4,500 acres, and mechanical

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methods for crushing, piling, thinning, (b) Have significant impacts on such other Federal, State, and local agencies
pruning, cutting, chipping, mulching, natural resources and unique geographic can work to ensure that the NEPA
and mowing, not to exceed 1,000 acres. characteristics as historic or cultural document will meet their needs for
Such activities: resources; park, recreation or refuge adoption and application to their related
(1) Shall be limited to areas— lands; wilderness areas; wild or scenic decision(s).
(i) In wildland-urban interface; and rivers; national natural landmarks; sole (b) In some cases, a non-Federal
(ii) Condition Classes 2 or 3 in Fire or principal drinking water aquifers; agency (including a tribal government)
Regime Groups I, II, or III, outside the prime farmlands; wetlands (E.O. 11990); must comply with State or local
wildland-urban interface; floodplains (E.O. 11988); national requirements that are comparable to the
(2) Shall be identified through a monuments; migratory birds; and other NEPA requirements. In these cases, the
collaborative framework as described in ecologically significant or critical areas. Responsible Official may designate the
‘‘A Collaborative Approach for (c) Have highly controversial non-Federal agency as a joint lead
Reducing Wildland Fire Risks to environmental effects or involve agency. (See 40 CFR 1501.5 and 1506.2
Communities and the Environment 10– unresolved conflicts concerning for a description of the selection of lead
Year Comprehensive Strategy alternative uses of available resources agencies, the settlement of lead agency
Implementation Plan;’’ [NEPA section 102(2)(E)]. disputes, and the use of joint lead
(3) Shall be conducted consistent with (d) Have highly uncertain and agencies.)
bureau and Departmental procedures potentially significant environmental (c) In some cases, the Responsible
and applicable land and resource effects or involve unique or unknown Official may establish a joint lead
management plans; environmental risks. relationship among several Federal
(4) Shall not be conducted in (e) Establish a precedent for future agencies. If there is a joint lead, then
wilderness areas or impair the action or represent a decision in one Federal agency must be identified
suitability of wilderness study areas for principle about future actions with as the agency responsible for filing the
preservation as wilderness; and potentially significant environmental EIS with EPA.
(5) Shall not include the use of effects.
herbicides or pesticides or the (f) Have a direct relationship to other § 46.225 How to select cooperating
construction of new permanent roads or actions with individually insignificant agencies.
other new permanent infrastructure; and but cumulatively significant (a) An ‘‘eligible governmental entity’’
may include the sale of vegetative environmental effects. is:
material if the primary purpose of the (g) Have significant impacts on (1) Any Federal agency that is
activity is hazardous fuels reduction. properties listed, or eligible for listing, qualified to participate in the
(Refer to the ESM Series for additional, on the National Register of Historic development of an EIS as provided for
required guidance.) Places. in 40 CFR 1501.6 and 1508.5 by virtue
(l) Post-fire rehabilitation activities (h) Have significant impacts on of its jurisdiction by law, as defined in
not to exceed 4,200 acres (such as tree species listed, or proposed to be listed, 40 CFR 1508.15; or
planting, fence replacement, habitat on the List of Endangered or Threatened (2) Any Federal agency that is
restoration, heritage site restoration, Species, or have significant impacts on qualified to participate in the
repair of roads and trails, and repair of designated Critical Habitat for these development of an EIS by virtue of its
damage to minor facilities such as species. special expertise, as defined in 40 CFR
campgrounds) to repair or improve (i) Violate a Federal law, or a State, 1508.26; or
lands unlikely to recover to a local, or tribal law or requirement (3) Any non-Federal agency (State,
management approved condition from imposed for the protection of the Tribal, or local) with qualifications
wildland fire damage, or to repair or environment. similar to those in paragraphs (a)(1) and
replace minor facilities damaged by fire. (j) Have a disproportionately high and (a)(2) of this section.
Such activities must comply with the adverse effect on low income or (b) Except as described in paragraph
following (Refer to the ESM Series for minority populations (E.O. 12898). (c) of this section, the Responsible
additional, required guidance.): (k) Limit access to and ceremonial use Official for the lead bureau must invite
(1) Shall be conducted consistent with of Indian sacred sites on Federal lands eligible governmental entities to
bureau and Departmental procedures by Indian religious practitioners or participate as cooperating agencies
and applicable land and resource significantly adversely affect the when the bureau is developing an EIS.
management plans; physical integrity of such sacred sites (c) The Responsible Official for the
(2) Shall not include the use of (E.O. 13007). lead bureau must consider any request
herbicides or pesticides or the (l) Contribute to the introduction, by an eligible governmental entity to
construction of new permanent roads or continued existence, or spread of participate in a particular EIS as a
other new permanent infrastructure; and noxious weeds or non-native invasive cooperating agency. If the Responsible
(3) Shall be completed within three species known to occur in the area or Official for the lead bureau denies a
years following a wildland fire. actions that may promote the request, or determines it is
introduction, growth, or expansion of inappropriate to extend an invitation, it
§ 46.215 CXs: Extraordinary the range of such species (Federal must state the reasons in the EIS. Denial
circumstances. Noxious Weed Control Act and E.O. of a request or not extending an
Extraordinary circumstances (see 13112). invitation for cooperating agency status
§ 46.205(c)) exist for individual actions is not subject to any internal
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within CXs that may meet any of the § 46.220 How to designate lead agencies. administrative appeals process, nor is it
criteria listed in paragraphs (a) through (a) In most cases, the Responsible a final agency action subject to review
(l) of this section. Applicability of Official should designate one Federal under the Administrative Procedure
extraordinary circumstances to CXs is agency as the lead with the remaining Act, 5 U.S.C. 701 et seq.
determined by the Responsible Official. Federal, State, tribal governments, and (d) Bureaus should work with
(a) Have significant impacts on public local agencies assuming the role of cooperating agencies to develop and
health or safety. cooperating agency. In this manner, the adopt a memorandum of understanding

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that includes their respective roles, lead agency must make it clear that the (2) Although scoping is not required,
assignment of issues, schedules, and lead agency is ultimately responsible for the bureau may apply a scoping process
staff commitments so that the NEPA the scope of an EIS and that suggestions to an EA.
process remains on track and within the obtained during scoping are considered (b) Publication of a ‘‘draft’’ EA is not
time schedule. Memoranda of to be advisory. required. Bureaus may seek comments
understanding must be used in the case on an EA if they determine it to be
§ 46.240 Establishing time limits for the
of non-Federal agencies and must appropriate, such as when the level of
NEPA process.
include a commitment to maintain the public interest or the uncertainty of
confidentiality of documents and (a) For each proposed action, on a
effects warrants.
deliberations during the period prior to case-by-case basis, bureaus shall:
(1) Set time limits from the start (c) The bureau must notify the public
the public release by the bureau of the of the availability of an EA and any
draft NEPA document. through to the finish of the NEPA
analysis and documentation consistent associated FONSI once they have been
(e) The procedures of this section may completed. Comments on a FONSI must
be used for an EA. with the requirements of 40 CFR 1501.8
and other legal obligations, including be solicited only as required by 40 CFR
§ 46.230 Role of cooperating agencies in statutory and regulatory timeframes; 1501.4(e)(2).
the NEPA process. (2) Consult with cooperating agencies (d) Bureaus may allow cooperating
In accordance with 40 CFR 1501.6, in setting time limits; and agencies (as defined in § 46.225) to
throughout the development of an (3) Encourage cooperating agencies to participate in developing EAs.
environmental document the lead meet established time frames.
§ 46.310 Contents of an EA.
bureau will collaborate, to the fullest (b) Time limits should reflect the
extent possible, with all cooperating availability of personnel and funds. (a) At a minimum, an EA must
agencies concerning those issues Efficiency of the NEPA process is include brief discussions of:
relating to their jurisdiction and special dependent on the management (1) The proposal;
expertise. Cooperating agencies may, by capabilities of the lead bureau, which (2) The need for the proposal;
agreement with the lead bureau, help to must assemble a qualified staff (3) The environmental impacts of the
do the following: commensurate with the type of project proposed action;
(a) Identify issues to be addressed in to be analyzed to ensure timely (4) The environmental impacts of the
the EIS; completion of NEPA documents. alternatives considered; and
(b) Arrange for the collection and/or (5) A list of agencies and persons
assembly of necessary resource, Subpart D—Environmental consulted.
environmental, social, economic, and Assessments (b) When there is consensus about the
institutional data; § 46.300 Purpose of an EA and when it proposed action with respect to
(c) Analyze data; must be prepared. alternative uses of available resources,
(d) Develop alternatives; the EA need only consider the proposed
(e) Evaluate alternatives and estimate The purpose of an EA is to allow the
Responsible Official to determine action and proceed without
the effects of implementing each consideration of additional alternatives,
alternative; and whether to prepare an EIS or a FONSI.
(a) A bureau must prepare an EA for including the no action alternative. (See
(f) Carry out any other task necessary section 102(2)(e) of NEPA).
for the development of the EIS. all proposed Federal actions, except
those: (c) In addition, an EA may describe a
§ 46.235 NEPA scoping process. (1) That are covered by a CX; broader range of alternatives to facilitate
(a) Scoping is a process that continues (2) That are covered sufficiently by an planning and decision-making.
throughout the planning and early earlier environmental document as (d) A proposed action or alternative(s)
stages of preparation of an EIS. While determined by the Responsible Official; may include adaptive management
scoping is required for an EIS, as or strategies allowing for adjustment of the
described in this section, it may also be (3) For which the bureau has already action during implementation. If the
appropriate to engage in scoping during decided to prepare an EIS. adjustments to an action are clearly
the preparation of an EA. For an EIS, (b) A bureau may prepare an EA for articulated and pre-specified in the
bureaus must use scoping to engage any proposed action at any time to: description of the alternative and fully
(1) Assist in planning and decision- analyzed, then the action may be
State, local and tribal governments, and
making; adjusted during implementation
the public in the early identification of (2) Further the purposes of NEPA
concerns, potential impacts, possible without the need for further analysis.
when no EIS is necessary; or Adaptive management includes a
alternative actions, and (3) Facilitate EIS preparation.
interdisciplinary considerations. monitoring component, approved
Scoping is an opportunity to bring § 46.305 Public involvement in the EA adaptive actions that may be taken, and
agencies and applicants together to lay process. environmental effects analysis for the
the groundwork for setting time limits, (a) The bureau must provide for adaptive actions approved.
expediting reviews where possible, public notification when an EA is being (e) The level of detail and depth of
integrating other environmental prepared. The bureau must, to the impact analysis should normally be
reviews, and identifying any major extent practicable, provide for public limited to the minimum needed to
obstacles that could delay the process. involvement when an EA is being determine whether there would be
The Responsible Official shall prepared. However, the method for significant environmental effects.
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determine whether, in some cases, the providing opportunities for public (f) Bureaus may choose to provide
invitation requirement in 40 CFR involvement is at the discretion of the additional detail and depth of analysis
1501.7(a)(1) may be satisfied by bureau. as appropriate in those EAs prepared
including such an invitation in the (1) The bureau must consider under § 46.300(b).
notice of intent (NOI). comments resulting from the notice that (g) An EA must contain objective
(b) In scoping meetings, newsletters, are timely received, whether specifically analyses that support conclusions
or other communication methods, the solicited or not. concerning environmental impacts.

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§ 46.315 How to format an EA. an effort to remain within the normal changes as alternatives considered. The
(a) An EA may be prepared in any page limits stated in 40 CFR 1502.7. documentation of these incremental
format useful to facilitate planning, changes to a proposed action or
§ 46.415 EIS format. alternatives may be incorporated by
decision-making, and appropriate
public participation. The Responsible Official may use any reference in accordance with 40 CFR
(b) An EA may be accompanied by EIS format and design as long as the 1502.21 rather than duplicating the
any other planning or decision-making statement is in accordance with 40 CFR description and analysis in the
document. The portion of the document 1502.10. statement.
that analyzes the environmental impacts (a) Contents. The Responsible Official (3) A proposed action or alternative(s)
of the proposal and alternatives must be may use any EIS format as long as the may include adaptive management
clearly and separately identified and not statement discloses: strategies allowing for adjustment of the
spread throughout or interwoven into (1) A statement of the purpose and action during implementation. If the
other sections of the document. need for the action; adjustments to an action are clearly
(2) A description of the proposed articulated and pre-specified in the
§ 46.320 Adopting EAs prepared by action; description of the alternative and fully
another agency, entity, or person. (3) The environmental impact of the analyzed, then the action may be
(a) A Responsible Official may adopt proposed action; adjusted during implementation
an EA prepared by another agency, (4) A brief description of the affected without the need for further analysis.
entity, or person, including an environment; Adaptive management includes a
applicant, if the Responsible Official: (5) Any adverse environmental effects monitoring component, approved
(1) Independently reviews the EA; which cannot be avoided should the adaptive actions that may be taken, and
and proposal be implemented; environmental effects analysis for the
(2) Finds that the EA complies with (6) Alternatives to the proposed
adaptive actions approved.
this subpart and relevant provisions of action; (c) Circulating and filing draft and
the CEQ Regulations and with other (7) The relationship between local
final EISs.
program requirements. short-term uses of man’s environment (1) The draft and final EISs shall be
(b) When appropriate, the Responsible and the maintenance and enhancement filed with EPA’s Office of Federal
Official may augment the EA to be of long-term productivity; Activities in Washington, DC (40 CFR
consistent with the bureau’s proposed (8) Any irreversible or irretrievable 1506.9).
action. commitments of resources which would (2) If preliminary drafts are prepared,
(c) In adopting or augmenting the EA, be involved in the proposed action the Responsible Official shall make
the Responsible Official will cite the should it be implemented; and those preliminary draft and preliminary
original EA. (9) The incremental process used, if final EISs available to those interested
(d) The Responsible Official must any, of coordination with other Federal and affected persons and agencies for
ensure that its bureau’s public agencies, State, Tribal and local comment; however, requirements at 40
involvement requirements have been governments, and commonly recognized CFR 1506.10 and 40 CFR 1502.19 shall
met before it adopts another agency’s community groups pursuant to only apply to the last draft statement
EA. §§ 46.110, 46.145 and 46.155 and the and the final statement.
results thereof.
§ 46.325 Conclusion of the EA process. (b) Alternatives. The EIS shall § 46.420 Terms used in an EIS.
(a) Upon review of the EA by the document the examination of reasonable The following terms are commonly
Responsible Official, the EA process alternatives to the proposed action. used to describe concepts or activities in
concludes in either: Reasonable alternatives are those that an EIS:
(1) A NOI to prepare an EIS; meet the purpose and need and address (a) Statement of purpose and need. In
(2) A FONSI; or one or more significant issues (40 CFR accordance with 40 CFR 1502.13, the
(3) No further action on the proposal. 1501.7) related to the proposed action. statement of purpose and need briefly
(b) Bureaus must document the final Since an alternative may be developed indicates the underlying purpose and
decision reached under paragraph (a) of to address more than one significant need to which the bureau is responding.
this section. issue, no specific number of alternatives (1) In some instances it may be
is required or prescribed. In addition to appropriate for the bureau to describe
Subpart E—Environmental Impact
the requirements at 40 CFR 1502.14, the its ‘‘purpose’’ and its ‘‘need’’ as distinct
Statements
Responsible Official has an option to aspects. The ‘‘need’’ for the action may
§ 46.400 Timing of EIS development. use the following procedures to develop be described as the underlying problem
(a) The bureau must prepare an EIS and analyze alternatives. or opportunity to which the agency is
for each proposed major Federal action (1) The effects of the no-action responding with the action. The
significantly affecting the quality of the alternative may be documented by ‘‘purpose’’ may refer to the goal or
human environment before making a contrasting the current condition and objective that the agency is trying to
decision on whether or not to proceed expected future condition should the achieve, and should be stated to the
with the proposed action. proposed action not be undertaken with extent possible, in terms of desired
(b) The Responsible Official must the impacts of the proposed action and outcomes.
inform applicants as soon as practicable any reasonable alternatives. (2) When an agency is asked to
of any responsibility they will bear for (2) To facilitate collaborative approve an application or permit, the
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funding environmental analyses processes and sound decisions, the agency should consider the needs and
associated with their proposals. Responsible Official may collaborate goals of the parties involved in the
with interested parties to modify a application or permit as well as the
§ 46.405 Remaining within page limits. proposed action and alternative(s) under public interest.
To the extent possible, bureaus consideration prior to issuing a draft (b) Reasonable alternatives. In
should use techniques such as EIS. In such cases the Responsible addition to the requirements of 40 CFR
incorporation by reference and tiering in Official may consider the incremental 1502.14, this term also includes

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alternatives that are technically and agency as a part of that review and § 46.450 Identifying the environmentally
economically practical or feasible and consultation. Also: preferable alternative.
that meet the purpose and need of the (1) The EIS should indicate that the In accordance with the requirements
proposed action. associated analyses are included; of 40 CFR 1505.2, a bureau must
(c) Range of alternatives. This term (2) The EIS must reference or include identify the environmentally preferable
includes all alternatives that would as an appendix any supporting analyses alternative in the ROD. It is not
reasonably accomplish the purpose of or reports; and necessary that the environmentally
the proposed action, that will be (3) The bureau preparing the EIS must preferable alternative be selected in the
rigorously explored and objectively send copies of all supporting analyses or ROD.
evaluated as well as other alternatives reports to reviewing agencies as
[FR Doc. E7–25484 Filed 12–31–07; 8:45 am]
that are analyzed in any preliminary appropriate in accordance with
BILLING CODE 4310–RG–P
draft or preliminary final EIS. applicable regulations or procedures.
(d) Proposed action. This term refers (b) The draft EIS must list all Federal
to the agency activity under permits, licenses, or approvals that must
be obtained to implement the proposal. DEPARTMENT OF COMMERCE
consideration. It includes a non-Federal
entity’s planned activity that falls under To the extent possible and authorized
National Oceanic and Atmospheric
a Federal agency’s authority to issue by law, the environmental analyses for
Administration
permits, licenses, grants, rights-of-way, these related permits, licenses, and
or other common Federal approvals, approvals should be integrated and 50 CFR Part 300
funding, or regulatory instruments. The performed concurrently. The bureau
proposed action: may complete the NEPA analysis before [Docket No. 071218860–7866–01]
(1) Is not necessarily, but may all approvals are in place. RIN 0648–AW26
become, during the NEPA process, a § 46.435 Inviting comments.
preferred alternative or an Pacific Halibut Fisheries; Catch
(a) A bureau must seek comment from Sharing Plan
environmentally preferable alternative;
the public as part of the NOI to prepare
and AGENCY: National Marine Fisheries
(2) Must be clearly described in order an EIS and notice of availability on the
draft EISs; Service (NMFS), National Oceanic and
to proceed with NEPA analysis. Atmospheric Administration (NOAA),
(b) In addition to paragraph (a) of this
(e) Preferred alternative. This term Commerce.
section, a bureau must request
refers to the alternative which the
comments from: ACTION: Proposed rule.
agency believes would best accomplish (1) Federal agencies;
the purpose and need of the proposed (2) State agencies through procedures SUMMARY: NMFS proposes to approve
action, while fulfilling its statutory established by the Governor under E.O. and implement changes to the Pacific
mission and responsibilities, giving 12372; Halibut Catch Sharing Plan (Plan) for
consideration to economic, (3) Local agencies, to the extent that the International Pacific Halibut
environmental, technical, and other they include the affected local Commission’s (IPHC or Commission)
factors. It may or may not be the same jurisdictions; and regulatory Area 2A off Washington,
as the agency’s or the non-Federal (4) Applicant, if any, and persons or Oregon, and California (Area 2A). NMFS
entity’s proposed action. organizations who may be interested or proposes to implement the portions of
(f) No action alternative. This term affected. the Plan and management measures that
has two interpretations. First ‘‘no (c) The bureau must request are not implemented through the IPHC,
action’’ may mean ‘‘no change’’ from a comments from the tribal government, which includes the sport fishery
current management direction or level unless the tribal government has management measures for Area 2A.
of management intensity. Second ‘‘no designated an alternate review process, These actions are intended to enhance
action’’ may mean ‘‘no project’’ in cases when the proposed action may affect the the conservation of Pacific halibut, to
where a new project is proposed for environment of either: provide greater angler opportunity
construction. Regardless of the (1) Indian trust or restricted land; or where available, and to protect
interpretation, a ‘‘no action’’ alternative (2) Other Indian trust resources, trust yelloweye rockfish and other overfished
is required to be analyzed in an EIS. assets, or tribal health and safety. groundfish species from incidental
(d) A bureau does not need to delay catch in the halibut fisheries.
§ 46.425 Identification of the preferred preparation and issuance of a final EIS
alternative in an EIS. DATES: Comments on the proposed
when any Federal, State, and local changes to the Plan and on the proposed
(a) Unless another law prohibits the agencies, or tribal governments from domestic Area 2A halibut management
expression of a preference, the draft EIS which comments must be obtained or measures must be received no later than
should identify the bureau’s preferred requested do not comment within the 5 p.m., local time on February 1, 2008.
alternative or alternatives, if one or prescribed time period.
more exists. ADDRESSES: Copies of the Plan and
(b) Unless another law prohibits the § 46.440 Eliminating duplication with State Regulatory Impact Review (RIR)/Initial
expression of a preference, the final EIS and local procedures. Regulatory Flexibility Analysis (IRFA)
must identify the bureau’s preferred A bureau must incorporate in its are available from D. Robert Lohn,
alternative. regulations provisions allowing a State Regional Administrator, Northwest
agency to jointly prepare an EIS, to the Region, NMFS, 7600 Sand Point Way
mstockstill on PROD1PC66 with PROPOSALS

§ 46.430 Environmental review and extent provided in 40 CFR 1506.2. NE, Seattle, WA 98115–0070. Electronic
consultation requirements. copies of the Plan, including proposed
(a) An EIS that also addresses other § 46.445 Preparing a legislative EIS. changes for 2008, and of the draft RIR/
environmental review and consultation When required, the Department must IRFA are also available at the NMFS
requirements must clearly identify and ensure that a legislative EIS is included Northwest Region website: http://
discuss all the associated analyses, as a part of the formal transmittal of a www.nwr.noaa.gov, click on
studies, and surveys relied upon by the legislative proposal to the Congress. ‘‘Groundfish & Halibut.’’

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