61292 Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 46 

RIN 1090–AA95 

Implementation of the National 

Environmental Policy Act (NEPA) of 

1969 

AGENCY: Office of the Secretary, Interior. 

ACTION: Final rule. 

SUMMARY: The Department of the 

Interior (Department) is amending its 

regulations by adding a new part to 

codify its procedures for implementing 

the National Environmental Policy Act 

(NEPA), which are currently located in 

chapters 1–6 of Part 516 of the 

Departmental Manual (DM). This rule 

contains Departmental policies and 

procedures for compliance with NEPA, 

Executive Order (E.O.) 11514, E.O. 

13352 and the Council on 

Environmental Quality’s (CEQ) 

regulations (40 CFR Parts 1500–1508). 

Department officials will use this rule in 

conjunction with and supplementary to 

these authorities. The Department 

believes that codifying the procedures 

in regulations that are consistent with 

NEPA and the CEQ regulations will 

provide greater visibility to that which 

was previously contained in the DM and 

enhance cooperative conservation by 

highlighting opportunities for public 

engagement and input in the NEPA 

process. 

The Department will continue to 

maintain Department’s information and 

explanatory guidance pertaining to 

NEPA in the DM and Environmental 

Statement Memoranda (ESM) to assist 

bureaus in complying with NEPA. 

Bureau-specific NEPA procedures 

remain in 516 DM Chapters 8–15 and 

bureau guidance in explanatory and 

informational directives. Maintaining 

explanatory information in the 

Department’s DM chapters and ESM, 

and bureau-specific explanatory and 

informational directives will facilitate 

timely responses to new ideas, new 

information, procedural interpretations, 

training needs, and editorial changes to 

assist field offices when implementing 

the NEPA process. 

EFFECTIVE DATE: November 14, 2008. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Vijai N. Rai, Team Leader, Natural 

Resources Management, Office of 

Environmental Policy and Compliance, 

1849 C Street, NW., Washington, DC 

20240. Telephone: 202–208–6661. Email: vijai_rai@ios.doi.gov. 

SUPPLEMENTARY INFORMATION: As a part 

of the conversion of the Department’s 

NEPA procedures from 516 DM to 

regulations, a number of key changes 

have been made. This rule: 

• Clarifies which actions are subject 

to NEPA section 102(2) by locating all 

relevant CEQ guidance in one place, 

along with supplementary Department 

procedures. 

• Establishes the Department’s 

documentation requirements for 

urgently needed emergency responses. 

The Responsible Official (RO) must 

assess and minimize potential 

environmental damage to the extent 

consistent with protecting life, property, 

and important natural, cultural and 

historic resources and, after the 

emergency, document that an 

emergency existed and describe the 

responsive actions taken. 

• Incorporates CEQ guidance that the 

effects of a past action relevant to a 

cumulative impacts analysis of a 

proposed action may in some cases be 

documented by describing the current 

state of the resource the RO expects will 

be affected. 

• Clarifies that the Department has 

discretion to determine, on a case-bycase basis, how to involve the public in 

the preparation of EAs. 

• Highlights that adaptive 

management strategies may be 

incorporated into alternatives, including 

the proposed action. 

• Incorporates language from the 

statute and CEQ guidance that EAs need 

only analyze the proposed action and 

may proceed without consideration of 

additional alternatives when there are 

no unresolved conflicts concerning 

alternative uses of available resources. 

This rule is organized under subparts 

A through E, covering the material 

currently in 516 DM Chapters 1 through 

6. The Department is replacing these 

chapters with new 516 DM Chapters 1– 

3, which will include explanatory 

guidance on these regulations. These 

revised chapters will be available to the 

public before the effective date of this 

rule and will be found at http:// 

www.doi.gov/oepc. The Department did 

not include 516 DM Chapter 7 in this 

rule because it provides internal 

administrative guidance specific to 

Department review of environmental 

documents and project proposals 

prepared by other Federal agencies. 

Chapters 8–15 of 516 DM continue to 

contain bureau-specific NEPA 

implementing procedures. In addition, 

other guidance pertaining to the 

Department’s NEPA regulations and the 

bureaus’ NEPA procedures will be 

contained in explanatory and 

informational directives. These 

explanatory and information directives 

will be contained either in the DM or 

ESM (for Departmental guidance), 

bureau NEPA handbooks (for bureauspecific guidance), or both. 

The CEQ was consulted on the 

proposed and final rule. CEQ issued a 

letter stating that CEQ has reviewed this 

rule and found it to be in conformity 

with NEPA and CEQ regulations (per 40 

CFR 1507.3 and NEPA section 

102(2)(B)). 

Comments on the Proposal 

This rule was published as a proposed 

rule in the Federal Register (73 FR 126) 

on January 2, 2008, and there was a 60- 

day comment period that closed on 

March 3, 2008. The Department 

received 100 comments. These 

comments were in the form of letters, emails, and faxes. Of the 100 comments 

received 50 were substantive; the 

remaining comments were all variations 

of a single form letter addressing one or 

more of three issues, which have been 

addressed below. The Department very 

much appreciates the response of the 

public, which has assisted the 

Department in improving the clarity of 

this final rule. 

In addition to changes made to the 

final rule in response to specific 

comments received, which are noted 

below, the Department has made minor 

revisions throughout in order to 

improve the clarity of the rule. In 

general, these latter revisions do not 

change the substance or meaning of any 

of the provisions proposed on January 2, 

2008, except in one or two instances as 

noted. As contemplated in the preamble 

to the proposed rule, the Department 

has added a provision specifying the 

circumstances in which an 

Environmental Assessment (EA) may 

tier to an Environmental Impact 

Statement (EIS) and in which a bureau 

may reach a Finding of No Significant 

Impact (FONSI) or Finding of No New 

Significant Impact (FONNSI). Please see 

paragraph 46.140(c). 

General Comments on the Proposed 

Rule 

Comment: Several commenters 

questioned the rationale for moving the 

Department’s NEPA procedures from 

the DM to regulations and requested 

further clarification of this rationale. 

Response: The Department believes 

that codifying the procedures in 

regulation will provide greater visibility 

to that which was previously contained 

in the DM and highlight opportunities 

for public engagement and input in the 

NEPA process. The Department believes 

that this greater accessibility of the 

regulations, when published in the Code 

of Federal Regulations (CFR), will allow 


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the public to more easily participate in 

the NEPA process. 

Comment: Some commenters stated 

that the Department should include the 

issue of global climate change in all 

environmental analysis documents. 

They stated that the Department has a 

legal obligation under NEPA to analyze 

the effects of global climate change as 

shaping the context within which 

proposed actions take place, as well as 

the impacts of proposed projects on 

climate change. Another group 

recommended that the Department 

include a mandate that an 

environmental analysis of climate 

change impacts be included in the 

NEPA analysis prepared for Resource 

Management Plans (RMPs). Several 

groups suggested that the Department 

should require planning documents for 

fossil fuel developments to consider 

various energy alternatives, including 

conservation and energy efficiency. 

They also recommended that the 

Department analyze greenhouse gas 

emissions in all decision documents 

related to energy development on public 

lands. Another commenter suggested 

that the Department compile 

information about landscape changes in 

response to climate change to use for 

programmatic NEPA documents. 

Response: Climate change issues can 

arise in relation to the consideration of 

whether there are direct or indirect 

effects of the greenhouse gas emissions 

from a proposed action, the cumulative 

effect of greenhouse gas emissions, and 

the effect of climate change on the 

proposed action or alternatives. The 

extent to which agencies address the 

effects of climate change on the aspects 

of the environment affected by the 

proposed action depends on the specific 

effects of the proposed action, their 

nexus with climate change effects on the 

same aspects of the environment, and 

their implications for adaptation to the 

effects of climate change. Whether and 

to what extent greenhouse gas emissions 

and/or climate change effects warrant 

analysis is the type of determination 

that Responsible Officials make when 

determining the appropriate scope of 

the NEPA analysis. Extensive discussion 

regarding the role of the Department, as 

well as the Federal government as a 

whole, with respect to the effects of 

greenhouse gas emissions and/or global 

climate change is beyond the scope of 

this rule concerning environmental 

analysis generally. Consequently, the 

final rule does not contain explicit 

provisions addressing global climate 

change. 

Comment: One commenter stated that 

the Department should include a 

provision that agencies must seek input 

through the NEPA process from local, 

regional, State, and tribal health 

agencies when making decisions that 

may impact human health. Several 

groups recommend requiring a Health 

Impact Assessment (which is a tool used 

by the World Health Organization) 

when a project may impact human 

health. 

Response: The Department 

appreciates this suggestion but does not 

believe inclusion of a specific 

requirement in this regard is appropriate 

in this rule. Individual bureaus of the 

Department have addressed and will 

continue to address possible impacts to 

human health in certain circumstances, 

such as with respect to subsistence 

issues in Alaska. Whether or not a 

Health Impact Assessment is the 

appropriate means to assess potential 

impacts on human health with regard to 

a particular proposal is the type of 

determination that Responsible Officials 

make for all manner of possible impacts 

when determining the appropriate scope 

of the NEPA analysis. 

Responses to Comments on Individual 

Provisions, Including Analysis of 

Changes Made 

The following paragraphs contain 

responses to comments made on 

individual provisions of the proposed 

rule and incorporate discussion of 

changes made to the rule as proposed in 

January 2008. 

Subpart A: General Information 

Section 46.10 Purpose of this Part. A 

new paragraph (c) has been added to 

clarify that, in accordance with CEQ 

regulations at 40 CFR 1500.3, trivial 

violations of these regulations are not 

intended to give rise to any independent 

cause of action. 

Section 46.30 Definitions. This 

section supplements the terms found in 

the CEQ regulations and adds several 

new definitions. The terms affected are 

the following: Adaptive management; 

Bureau; Community-based training; 

Controversial; Environmental Statement 

Memoranda; Environmentally preferable 

alternative; No action alternative; 

Proposed action; Reasonably foreseeable 

future actions; and Responsible Official. 

A definition of consensus-based 

management has been placed in section 

46.110. The definitions of no action 

alternative and proposed action have 

been moved to this section for the final 

rule from proposed section 46.420, as 

these terms may apply to both EAs and 

EISs. Comments and responses 

addressing these terms may be found 

below, in the discussion of section 

46.420. 

Comment: Several commenters 

expressed concern that the definition of 

‘‘community’’ may be ‘‘misinterpreted 

in a variety of ways to mean local and 

county governments affected by a 

proposed action, or communities of 

individuals with a common interest in 

the project who do not necessarily live 

in the area directly affected by the 

project.’’ Several groups recommended 

that the Department include and review 

the definition(s) in Environmental 

Statement Memorandum No. ESM03–7. 

Response: Because of the possibility 

of confusion noted by the commenter, 

the Department has included a 

provision at section 46.110 focusing on 

‘‘consensus-based management’’ as 

incorporating the ideas reflected in the 

emphasis on community involvement in 

the NEPA process. In developing the 

provision addressing consensus-based 

management, the Department relied 

upon the existing ESM03–7. 

Comment: Many commenters 

expressed concerns with the proposed 

definition of ‘‘controversial.’’ Some 

stated that the size or nature of a 

proposed action should not render the 

action controversial under NEPA. 

Several individuals are concerned that 

the proposed definition of 

‘‘controversial’’ would render all 

proposed projects on public lands as 

being controversial and will protract 

NEPA analyses. One group applauded 

the Department for defining 

‘‘controversial’’ in terms of disputes 

over the bio-physical effects of a project 

rather than merely opposition to a 

project. 

Response: The language in the 

proposed rule reflects current case 

precedent on the meaning of 

‘‘controversial’’ under NEPA and has 

been retained, but with modification to 

address the confusion regarding the 

reference to ‘‘size’’ and ‘‘nature’’ in the 

final rule. Courts have consistently 

specified that disagreement must be 

with respect to the character of the 

effects on the quality of the human 

environment in order to be considered 

to be ‘‘controversial’’ within the 

meaning of NEPA, rather than a mere 

matter of the unpopularity of a proposal. 

See Como-Falcon Coalition, Inc. v. U.S. 

Dept. of Labor, 609 F.2d 342 (8th Cir. 

1978), cert. denied, 446 U.S. 936 (‘‘Mere 

opposition to federal project does not 

make project controversial so as to 

require environmental impact 

statement.’’) 

Comment: Some commenters 

suggested that the definition of 

‘‘environmentally preferable 

alternatives’’ does not make clear 

whether the requirement applies to 

Records of Decision (RODs) on projects 


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analyzed in an EIS or EA or only to 

those analyzed in an EIS. They 

recommended adding a sentence at the 

end of the definition clarifying that the 

requirement applies to EAs and EISs. 

Response: CEQ regulations require the 

identification of at least one 

environmentally preferable alternative 

in a ROD, which is the decision 

document issued after completion of an 

EIS. (40 CFR 1505.2(b); see also 

Question 6b of CEQ’s ‘‘Forty Most 

Asked Questions Concerning CEQ’s 

National Environmental Policy Act 

Regulations,’’ 46 Fed. Reg. 18026 (Mar. 

23, 1981), as amended (hereinafter 

CEQ’s ‘‘Forty Most Asked Questions’’). 

The CEQ regulations do not identify the 

decision document issued after 

completion of an EA/FONSI, and 

bureaus do not issue RODs in this 

situation. Therefore, the Department has 

not changed the definition in response 

to this comment. 

Comment: Several commenters 

expressed reservations about the 

definition of Preliminary Environmental 

Impact Statement (PEIS). They 

suggested that the role of the PEIS be 

clarified. One commenter wanted the 

Department to include provisions on 

how the scoping process and the PEIS 

will interact. Others wanted to know 

what level of detail should be included 

in a PEIS and whether use of a PEIS 

would introduce an additional 

requirement for public comment. One 

commenter strongly disagreed with the 

use of a PEIS, stating that the use of a 

PEIS could delay a DEIS or FEIS and 

could add additional expenses to 

private proponents that are funding 

NEPA projects. They recommended that 

the Department add a provision to the 

rule that would enforce time restrictions 

on the PEIS process. 

Response: Because of the confusion 

and concern surrounding the PEIS, and 

upon further reflection, the Department 

has decided not to include this 

provision in the final rule. The 

definition in the proposed rule found at 

section 46.30 and description in 

sections 46.415 and 46.420 have been 

removed in the final rule. The 

Department continues to encourage 

collaboration with the public in an 

approach to alternative development 

and decision-making. The 

implementation of any such approach is 

determined by the RO. The PEIS was 

simply an optional tool and its removal 

from the final rule will not diminish 

this continuing Departmental emphasis 

on collaboration. The RO will still be 

free to involve and inform the public 

regarding each particular NEPA analysis 

in a manner that best meets the public 

and government needs. 

Comment: One commenter stated that 

the Department should add ‘‘agency’’ to 

the definition of ‘‘Reasonably 

Foreseeable Future Actions’’ to ensure 

the agency covers all reasonably 

foreseeable actions that flow from 

proposed actions. Several commenters 

stated that the proposed definition of 

‘‘Reasonably Foreseeable Future 

Actions’’ conflicts with the definition of 

‘‘Reasonably Foreseeable Development 

Scenario’’ contained in the Instruction 

Memorandum 2004–089 issued by the 

BLM. Another commenter stated that 

the proposed definition of ‘‘Reasonably 

Foreseeable Future Actions’’ does not 

follow CEQ guidelines. 

Response: The final rule defines 

‘‘reasonably foreseeable future actions’’ 

to explain a term used in CEQ’s 

definition for ‘‘cumulative impact’’ at 40 

CFR 1508.7. The Department has 

attempted to strike a balance by 

eliminating speculation about activities 

that are not yet planned, but including 

those that are reasonably foreseeable 

and are expected to occur (for example, 

based on other development in the area 

when there has been some decision, 

funding, or development of a proposal 

(see 40 CFR 1508.23)). The Department 

does not believe that the definition of 

‘‘reasonably foreseeable future actions’’ 

conflicts with the description of the 

Bureau of Land Management’s 

analytical tool, the ‘‘reasonably 

foreseeable development scenario’’ or 

RFD. The RFD is a projection (scenario) 

of oil and gas exploration, development, 

production, and reclamation activity 

that may occur in a specific resource 

area during a specific period of time; as 

such, the analysis in the RFD can 

provide basic information about oil and 

gas activities that may inform the 

analysis of reasonably foreseeable future 

actions. 

In order to clarify that reasonably 

foreseeable future actions include both 

‘‘federal and non-federal’’ activities, we 

have added these terms in the definition 

in section 46.30. This is consistent with 

40 CFR 1508.7. The Department has 

added language to clarify that the 

existing decisions, funding, or proposals 

are those that have been brought to the 

attention of the RO. 

In its mention of the ‘‘Responsible 

Official of ordinary prudence’’ the 

definition also incorporates the 

reasonableness standard emphasized by 

the Supreme Court as ‘‘inherent in 

NEPA and its implementing 

regulations.’’ In Department of 

Transportation v. Public Citizen, 541 

U.S. 752, 770 (2004), the Court 

reaffirmed that this ‘‘rule of reason’’ is 

what ensures that agencies include in 

the analyses that they prepare 

information useful in the decisionmaking process. In that case, the Court 

noted that the agency in question, the 

Federal Motor Carrier Safety 

Administration in the Department of 

Transportation, properly considered the 

incremental effects of its own safety 

rules in the context of the effects of the 

reasonably foreseeable possibility that 

the President might lift the moratorium 

on cross-border operations of Mexican 

motor carriers. Id. In those 

circumstances, the possibility that the 

President might act in one of several 

ways was neither an existing decision, 

matter of funding, or proposal, but was 

nevertheless a possibility that a person 

of ordinary prudence would consider 

when reaching a decision regarding the 

proposed action of promulgating the 

rule at issue in that case. Similarly, in 

some circumstances an RO of ordinary 

prudence would include analysis of 

actions that, while not yet proposed, 

funded, or the subject of a decision, 

nevertheless are likely or foreseeable 

enough to provide important 

information and context within which 

any significant incremental effects of the 

proposed action would be revealed. 

Subpart B: Protection and Enhancement 

of Environmental Quality 

The proposed rule did not include 

portions of 516 DM Chapter 1 that are 

merely explanatory in that they address 

internal Departmental processes. This 

information will be retained in the DM 

or will be issued as additional 

explanatory information by the 

Department’s Office of Environmental 

Policy and Compliance in 

Environmental Statement Memoranda. 

In this final rule, this subpart includes 

the following sections: 

Section 46.100 Federal action 

subject to the procedural requirements 

of NEPA. This section provides 

clarification on when a proposed action 

is subject to the procedural 

requirements of NEPA. Paragraph 

46.100(b)(4), ‘‘The proposed action is 

not exempt from the requirements of 

section 102(2) of NEPA,’’ refers to those 

situations where, either a statute 

specifically provides that compliance 

with section 102(2) of NEPA is not 

required, or where, for instance, a 

bureau is required by law to take a 

specific action such that NEPA is not 

triggered. For example, Public Law 105– 

167 mandates the Bureau of Land 

Management (BLM) to exchange certain 

mineral interests. In this situation, 

section 102(2) of NEPA would not apply 

because the law removes BLM’s 

decision making discretion. Also, this 

provision refers to situations where 

there is a clear and unavoidable conflict 


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between NEPA compliance and another 

statutory authority such that NEPA 

compliance is not required. For 

example, if the timing requirements of 

a more recent statutory authority makes 

NEPA compliance impossible, NEPA 

must give way to the more recent 

statute. 

Similarly, the final rule clarifies that 

the proposed action is subject to the 

procedural requirements of NEPA and 

the CEQ regulations depending on ‘‘the 

extent to which bureaus exercise control 

and responsibility over the proposed 

action and whether Federal funding or 

approval will be provided to implement 

it’’ paragraph 46.100(a). The criteria for 

making this determination include, inter 

alia, ‘‘when the bureau has a goal and 

is actively preparing to make a decision 

on one or more alternative means of 

accomplishing that goal’’ paragraph 

46.100(b)(1), and ‘‘the effects can be 

meaningfully evaluated’’ and ‘‘the 

proposed action would cause effects on 

the human environment’’ paragraph 

46.100(b)(3). 

The clarifications provided in this 

section have been made, in part, in 

order to ensure that the rule is 

consistent with the Supreme Court’s 

decision in Department of 

Transportation v. Public Citizen, 541 

U.S. 752, 770 (2004). In Public Citizen, 

the Court explained that a ‘‘but for’’ 

causal relationship is insufficient to 

make an agency responsible for a 

particular effect under NEPA and the 

relevant regulations, but that there must 

be ‘‘a reasonably close causal 

relationship’’ between the 

environmental effect and the alleged 

cause and that this requirement was 

analogous to the ‘‘familiar doctrine of 

proximate cause from tort law.’’ 541 

U.S. at 767. The Court reaffirmed that 

‘‘courts must look to the underlying 

policies or legislative intent in order to 

draw a manageable line between those 

causal changes that may make an actor 

responsible for an effect and those that 

do not’’ and that inherent in NEPA and 

its implementing regulations is a ‘‘rule 

of reason.’’ Id. 

Comment: Some commenters 

expressed concern regarding the 

procedural requirements of NEPA. One 

group stated that the Department’s 

procedural actions should be subject to 

NEPA requirements regardless of 

whether or not sufficient funds are 

available. This group stated that if a 

proposed action is even being 

considered by a RO, the procedural 

requirements of NEPA must apply. 

Another group suggested the 

Department add an additional 

subsection that offers guidance whether 

an ‘‘action’’ is subject to NEPA 

compliance. 

Response: The Department agrees that 

the procedural requirements of NEPA 

apply when a proposal consistent with 

40 CFR 1508.23 has been developed. 

Mere consideration of a possible project 

however does not constitute a proposed 

action that can be analyzed under 

NEPA. Rather, under 40 CFR 1508.23, a 

proposal is ripe for analysis when an 

agency is ‘‘actively preparing to make a 

decision.’’ 

When the proposed action involves 

funding, Federal control over the 

expenditure of the funds by the 

recipient is essential to determining 

what constitutes a ‘‘Federal’’ action that 

requires NEPA compliance. This is 

consistent with 40 CFR 1508.18(a). The 

issue of funding does not turn on the 

sufficiency, or lack thereof, of the 

funding, but on the degree of Federal 

control or influence over the use of the 

funds. The language in the final rule 

regarding whether a proposal is subject 

to NEPA compliance has been clarified 

by addressing the question of whether 

NEPA applies in paragraph 46.100(a), 

and when the NEPA analysis should be 

conducted in paragraph 46.100(b). 

Comment: One individual urged the 

Department to not add additional 

obligations that are not currently 

required under NEPA, particularly with 

respect to the emphasis on public 

participation. 

Response: This final rule adds no 

additional obligations not currently 

required under NEPA and the CEQ 

regulations. Section 46.100 is an effort 

to consolidate existing requirements in 

40 CFR 1508.18, 40 CFR 1508.23, and 40 

CFR 1508.25, among others. For 

instance in 40 CFR 1500.2(d) CEQ 

requires that Federal agencies ‘‘* * * 

encourage and facilitate public 

involvement in decisions which affect 

the quality of the human environment.’’ 

Consistent with this provision, 

paragraph 46.305(a) requires that a 

bureau must, to the extent practicable, 

provide for public notification and 

public involvement when an 

environmental assessment is being 

prepared. However, the methods for 

providing public notification and 

opportunities for public involvement 

are at the discretion of the RO. 

Individual bureaus will be able to 

provide in their explanatory and 

informational directives descriptions of 

ways of carrying out public notification 

and involvement appropriate to 

different kinds of proposed actions. 

Comment: One commenter stated that 

the proposed rule as written suggests 

that a NEPA review would only occur 

to the extent the effects on the human 

environment could be meaningfully 

evaluated and that the proposed 

provision at 46.100 seemed to ‘‘conflict 

with situations where there are 

‘unknowns’ and the bureau cannot 

meaningfully evaluate the effects, but it 

nonetheless is necessary to move ahead 

with the proposal.’’ This commenter 

suggested that the Department clarify 

that NEPA review will proceed and will 

be based on the best available data. 

Response: The Department agrees that 

NEPA analysis takes place when the 

effects of a proposed action can be 

meaningfully evaluated, as stated in the 

revised paragraph 46.100(b). Further, 

the Department appreciates the 

commenter highlighting the possibility 

of confusion resulting from the structure 

of 46.100 as proposed. As proposed, 

section 46.100 addressed both the 

questions of whether and when a 

proposed action is subject to the 

procedural requirements of NEPA, but 

without grouping the provisions 

addressing these two issues separately. 

In response to this comment, and upon 

further review, the Department has 

restructured section 46.100 to separate 

these two issues into paragraphs (a) and 

(b) for the sake of clarity. The revised 

paragraph 46.100(b) identifies when in 

its development the proposed Federal 

action the NEPA process should be 

applied and, if meaningful evaluation of 

effects cannot occur, then the proposal 

is not yet ripe for analysis under NEPA. 

That being said, NEPA itself does not 

require the use of ‘‘best available data;’’ 

rather, CEQ regulations demand 

information of ‘‘high quality’’ and 

professional integrity. 40 CFR 1500.1, 

1502.24. However, the Department’s 

obligations under other authorities, such 

as the Information Quality Act Section 

515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554), do 

require bureaus to use the best available 

data. While discussion of the 

Department’s obligations under the 

Information Quality Act is outside the 

scope of this rule, the Department 

concurs that meaningful evaluation 

must be carried out on the basis of 

whatever data is available. The 

Department does not believe that this is 

inconsistent with CEQ’s provision 

regarding those situations where 

information is incomplete or 

unavailable (40 CFR 1502.22). In fact, 

rather than stating that meaningful 

evaluation cannot take place when there 

are ‘‘unknowns’’ as the commenter 

appears to suggest, the CEQ regulations 

provide steps to take in order that 

meaningful evaluation can continue 

when information is lacking; therefore, 

the Department does not believe 


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revision of this rule is necessary to 

address this point. 

Comment: Several individuals 

responded to our request for input 

regarding the use of FONSIs based on 

tiered EAs where a FONSI would be, in 

effect, a finding of no significant 

impacts other than those already 

disclosed and analyzed in the EIS to 

which the EA is tiered. These 

individuals supported the concept. 

Response: The Department 

appreciates the comment. The 

Department has added the provision as 

contemplated. See section 46.140, 

which provides for the use of tiered 

documents. See also the detailed 

response to comments on section 

46.140, below. Under this final rule a 

FONSI or FONNSI (Finding of No New 

Significant Impact) can be prepared 

based on an EA that is tiered to an EIS. 

This approach is consistent with CEQ 

regulations at 40 CFR 1508.28. 

Comment: One group recommended 

the Department clarify that the National 

Park Service (NPS) should prepare an 

EA or EIS as part of its submission to 

the National Capital Planning 

Commission. 

Response: This comment was 

specifically referring to situations where 

a particular type of proposed action may 

be subject to categorical exclusion (CX 

or CE) under the Department’s NEPA 

procedures but not under the NEPA 

procedures of another Federal agency 

such as, in this case, the NEPA 

procedures of the National Capital 

Planning Commission (NCPC). While, as 

a general rule, each Federal agency is 

responsible for compliance with NEPA 

consistent with both CEQ’s regulations 

and its own procedures for 

implementing NEPA, the particular 

issue raised concerns a very specific 

situation involving two Federal agencies 

acting under very specific and distinct 

authorities. Therefore, the Department 

declines to address this comment more 

specifically and does not believe a 

specific provision is necessary in 

general Departmental procedures. 

Section 46.105 Using a contractor to 

prepare environmental documents. This 

section explains how bureaus may use 

a contractor to prepare any 

environmental document in accordance 

with the standards of 40 CFR 1506.5(c). 

Comment: Some commenters wanted 

the Department to clarify requirements 

for working with a contractor. Some 

stated that strict requirements should be 

put into place for selection of a 

contractor to ensure the adequacy of 

documents, independent evaluation, 

and sound management practices. One 

individual stated that the Department 

should adopt existing CEQ guidance on 

the use and selection of contractors. 

Response: The Department complies 

with CEQ regulations and follows 

existing CEQ guidance on the selection 

and use of contractors. Each bureau is 

responsible for determining how its 

officials will work with contractors, 

subject to the CEQ regulations and 

guidance. In any event, the RO is 

responsible for, or is the approving 

official for, the adequacy of the 

environmental document. The 

Department does not believe any further 

clarification of the rule is necessary. 

Comment: Another commenter 

applauded the Department for a ‘‘clear 

articulation of the use of contractors for 

NEPA document preparation.’’ 

Response: The Department 

appreciates the comment. 

Section 46.110 Incorporating 

consensus-based management. This 

section provides a definition of 

consensus-based management and 

incorporates this approach as part of the 

Department’s NEPA processes. 

Paragraph 46.110(e), requiring bureaus 

to develop directive to implement 

section 46.110 has been removed from 

the final rule as not appropriate for 

regulatory treatment. 

Comment: Most commenters 

supported the Department’s proposed 

rule on consensus-based management. 

However, many individuals expressed 

concerns regarding the breadth of the 

definition of consensus-based 

management. Because of the lack of 

concrete provisions within this section, 

many individuals suggested the NEPA 

process could become ‘‘unnecessarily 

time consuming and costly.’’ Several 

individuals stated that the word 

‘‘consensus’’ should be taken out of the 

proposed rule because ‘‘consensus’’ 

suggests interested parties will 

determine the preferred alternative. 

Other individuals suggested that the 

term ‘‘consensus’’ has the potential to 

create ‘‘unreasonable expectations in the 

public.’’ One group suggested replacing 

‘‘consensus’’ with ‘‘open and 

transparent community involvement 

and input.’’ Another suggestion for the 

replacement of the word ‘‘consensus’’ 

was ‘‘collaboration.’’ Several 

individuals stated that the proposal for 

consensus-based management should be 

withdrawn and that the Department 

should continue following the current 

CEQ regulations on collaboration. 

Individuals suggested that the 

Department clearly define what 

constitutes community. 

Response: The Department has 

revised section 46.110, and added a 

definition for ‘‘consensus-based 

management’’ to this section. The 

definition comes from the existing 

ESM03–7, and expresses existing 

Department policy. The definition of 

‘‘consensus-based management’’ has 

been modified in order to render it in 

regulatory language. Many of the 

commenters seem to assume that in the 

absence of consensus the Department 

will not take action. This is not the case. 

While the RO is required to consider the 

consensus-based management 

alternative whenever practicable, at all 

times discretion remains with the RO 

regarding decisions, if any, to be made 

with respect to the proposed action. 

While the Department requires the use 

of consensus-based management, 

whenever practicable, we have added a 

provision that if the RO determines that 

the consensus-based alternative should 

not be the preferred alternative, an 

explanation of the rationale behind this 

decision is to be incorporated in the 

environmental document. 

Comment: Some commenters stated 

that the technique of consensus-based 

management may be impossible to 

implement. One group was particularly 

concerned with the definition of 

‘‘interested party.’’ They believe it may 

be impossible for the Department to 

determine who the interested parties are 

and that the process of managing 

interested parties may be cumbersome 

and add expense and time onto NEPA 

projects. This group suggested that the 

Department develop a clear and concise 

definition of ‘‘interested parties.’’ 

Response: The Department 

acknowledges that consensus may not 

always be achievable or consistent with 

the Department’s legal obligations or 

policy decisions. However, the 

Department requires the use of 

consensus-based management whenever 

practicable. CEQ regulations direct 

agencies to encourage and facilitate 

public involvement in the NEPA 

process. 40 CFR 1500.2(d), 40 CFR 

1506.6. The Department agrees that use 

of the term ‘‘interested parties’’ may 

cause confusion. The Department has 

replaced the term ‘‘interested parties’’ 

with ‘‘those persons or organizations 

who may be interested or affected’’ 

which is used in the CEQ regulations. 

See for example 40 CFR 1503.1. 

Comment: Several individuals stated 

that it is vital that the interests of the 

‘‘regional community’’ be taken into 

account during the NEPA process. One 

commenter applauded the Department 

for including consensus-based 

management in the proposed rule and 

for taking additional steps to support 

the ‘‘cooperative conservation policy.’’ 

One group believed this proposal would 

‘‘provide an avenue for impacted local 

governments and citizens to become 


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involved in the agency review process, 

and have their interests acknowledged 

in a meaningful way, and achieve a winwin final decision.’’ 

Response: The Department 

appreciates the comment and agrees that 

the interests of the regional and local 

community should be taken into 

account during the NEPA process. 

Comment: Several commenters stated 

that the Department needs to add a 

provision to the rule that clearly spells 

out the role of the RO. This provision 

would include directives on selecting 

alternatives. 

Response: The Department has 

defined ‘‘Responsible Official’’ under 

section 46.30. The Department has also 

specified in the definition that the RO 

is responsible for NEPA compliance 

(which includes the selection of 

alternatives). The particular identity of 

the RO for any given proposed action is 

determined by the relevant statute, 

regulation, DM, or specific delegation 

document that grants the authority for 

that particular action. 

Comment: Some individuals also 

stated that a process should be included 

to assure the public that the 

community’s work is reflected in the 

evaluation of the proposed action and 

the final decision, even if the 

community alternative is not eventually 

selected as the agency’s preferred 

alternative. One group suggested that 

the Department define what constitutes 

‘‘assurance’’ that participant work is 

considered in the decision-making 

process. Several groups stated that the 

community alternative must fully 

comply with NEPA, CEQ regulations, 

and all Department policies and 

procedures in order to be considered by 

the RO. Several groups refer to court 

cases stating that NEPA ‘‘does not 

require agencies to consider alternatives 

that are not feasible or practical.’’ 

Individuals would like the Department 

to explain what a community alternative 

consists of, how it will be evaluated, 

who is the relevant community, and 

how many community alternatives can 

be proposed for each project. They also 

expressed concern that the proposed 

rule suggests all alternatives submitted 

must be analyzed in detail. 

Response: Section 46.110 provides for 

the evaluation of reasonable alternatives 

presented by persons, organizations or 

communities who may be interested or 

affected by a proposed action in the 

NEPA document even if the RO does not 

select that alternative for 

implementation. The final rule clarifies 

that, while all or a reasonable number 

of examples covering the full spectrum 

of reasonable alternatives may be 

considered, a consensus-based 

management alternative (if there are any 

presented) may only be selected if it is 

fully consistent with the purpose of and 

need for the proposed action, as well as 

with NEPA generally, the CEQ 

regulations, and all applicable statutory 

and regulatory provisions, as well as 

Departmental and bureau written 

policies and guidance could be selected. 

It also provides that bureaus must be 

able to show that participants’ or 

community’s input is reflected in the 

evaluation of the proposed action and 

the final decision. Therefore, the 

Department believes that the final rule 

adequately addresses these comments. 

Comment: Some individuals 

indicated that NEPA does not require 

consensus and stated the proposed rule 

goes against the direction of the CEQ 

regulations. Some commenters directed 

the Department to review CEQ’s 

‘‘Collaboration in NEPA’’ handbook. 

Several groups recommended that the 

Department include and review the 

Environmental Statement Memorandum 

No. ESM03–7. 

Response: The Department agrees 

neither NEPA nor the CEQ regulations 

require consensus. This new regulation 

requires the use of consensus-based 

management whenever practicable. 

Consensus-based management is not 

inconsistent with the intent of NEPA 

and the CEQ regulations. The 

Department has reviewed CEQ’s 

publication ‘‘Collaboration in NEPA—A 

Handbook for NEPA Practitioners’’ 

available at http://ceq.eh.doe.gov/nepa/ 

nepapubs/ 

Collaboration_in_NEPA_Oct2007.pdf. 

While consensus-based management, 

like collaboration, can be a useful tool, 

the Department recognizes that 

consensus-based management may not 

be appropriate in every case. The final 

rule does not set consensus-based 

management requirements, including 

timelines or documentation of when 

parties become involved in the process. 

Similar to collaborative processes, 

consensus-based management 

processes, like public involvement and 

scoping, will vary depending on the 

circumstances surrounding a particular 

proposed action. Some situations will 

require a lot of time and others will not. 

Regardless of the level or kind of public 

involvement that takes place, at all 

times the RO remains the decision 

maker. 

Comment: One group suggested that 

the Department remove paragraph (b) 

because it is ‘‘duplicative, ambiguous, 

and unnecessary.’’ They believed this 

section simply restates the requirement 

in section 1502.14 of the CEQ 

regulations that requires agencies 

evaluate ‘‘all reasonable alternatives.’’ 

They also expressed concern that 

community-based alternatives may be 

given preferential weight over the 

project proponent’s alternative. 

Response: The Department does not 

agree that the section is unnecessary 

and duplicative or that it simply restates 

the requirement in section 1502.14 of 

the CEQ regulations. Although there are 

some common elements to 40 CFR 

1502.14 and paragraph 46.110(b), this 

paragraph requires the use of consensusbased management in NEPA processes 

and decision-making whenever 

practicable. The RO is responsible for an 

analysis of the reasonable alternatives, 

and the NEPA process allows for the 

selection of an alternative based on the 

consideration of environmental effects, 

as well as the discretionary evaluation 

of the RO. The intent of this provision 

is that alternatives presented by those 

persons or organizations that may be 

interested or affected, including 

applicants, be given consideration. 

Comment: One group wanted to see a 

mandate added to the proposed rule that 

requires the Department to work with 

tribal governments. One individual 

suggested that the word ‘‘considered’’ 

should be changed to ‘‘adopted,’’ 

‘‘accepted,’’ or ‘‘implemented’’ to ensure 

consideration is given to an alternative 

proposed by a tribe. 

Response: The Department has a 

government-to-government relationship 

with federally-recognized tribes and as 

such specifically provides for 

consultation, coordination and 

cooperation. We consider all 

alternatives, including those proposed 

by the tribes, as part of the NEPA 

process, but cannot adopt, accept, or 

implement any alternative before full 

evaluation of all reasonable alternatives. 

Therefore, the Department declines to 

adopt the group’s recommendation. 

Section 46.113 Scope of the 

analysis. This section, as proposed, 

addressed the relationships between 

connected, cumulative, and similar 

actions and direct, indirect and 

cumulative impacts. This section has 

been removed from the final rule. 

Comment: Some commenters stated 

that the proposed rule is not clear with 

respect to the issue of what projects 

need to be included in the scope of 

analysis. One individual suggested that 

the Department should include language 

in the proposed rule clarifying that the 

effects of connected, cumulative and 

similar actions must be included in the 

effects analysis as indirect or 

cumulative effects. These actions do not 

become part of the proposed action, and 

alternatives for these actions need not 

be considered in the analysis. 


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One individual suggests that the 

Department change the language to 

provide guidance that allows bureaus to 

determine which projects need to be 

included in a cumulative effects 

analysis. They recommend clearly 

defining ‘‘connected,’’ ‘‘cumulative,’’ 

‘‘direct,’’ and ‘‘indirect.’’ If these 

changes are made, some believe this 

rule will provide uniformity, 

consistency, and predictability to the 

NEPA process. 

Another individual suggested 

‘‘should’’ be removed from this section. 

They expressed concern that the current 

wording implies that connected and 

cumulative action analysis is optional. 

One commenter recommended that 

this section should be deleted in its 

entirety because it is inconsistent with 

CEQ regulations. They recommended 

that the Department revise the section to 

reflect the difference between the 

treatment of connected, cumulative, and 

similar actions and the treatment of the 

effects of such actions. 

Response: In light of the confusion 

reflected in several of the comments, as 

well as upon further consideration, the 

Department has eliminated this 

provision from the final rule. Bureaus 

will continue to follow CEQ regulations 

regarding scope of analysis at 40 CFR 

1508.25, as well as bureau specific 

directives. 

Section 46.115 Consideration of past 

actions in the analysis of cumulative 

effects. This section incorporates CEQ 

guidance issued on June 24, 2005 that 

clarifies how past actions should be 

considered in a cumulative effects 

analysis. The Department has elected 

not to repeat the specific provisions of 

the CEQ guidance in the final rule. 

Responsible Officials are directed to 

refer to the applicable CEQ regulations 

and the June 24, 2005 CEQ guidance. 

Comment: Several groups 

commended the Department for its 

efforts to bring clarity to the NEPA 

cumulative effects analysis. 

Response: The Department 

appreciates the comments. 

Comment: Several groups stated that 

CEQ regulations do not contain a 

‘‘significant cause-and-effect’’ filter 

excluding projects from cumulative 

impact analysis because the project’s 

effects are minor. One group was 

concerned that the proposed rule 

contains measures that would 

‘‘constrain the usefulness of agencies’ 

analyses of cumulative impacts,’’ and 

would violate CEQ regulations. This 

group suggested that the proposed rule 

would constrain the scope of actions 

whose effects should be considered in a 

cumulative impacts analysis. 

Some individuals stated that the 

Department is proposing to curtail the 

consideration and evaluation of past 

actions when proposing future 

activities. They stated that the agencies 

and public should be informed of 

potential environmental consequences 

before decisions are made. Others 

suggested this section does not provide 

guidance to the RO on what past actions 

and proposed future actions should be 

included in the analysis. Groups stated 

that a Department field office has no 

inherent expertise in determining which 

actions are relevant to a cumulative 

impacts analysis and should therefore 

not be vested with such discretion. 

Several groups suggested that the entire 

section should be removed from the 

proposed rule, and that the Department 

should conduct environmental analyses 

pursuant to CEQ regulations. One 

individual stated ‘‘NEPA is intended to 

ensure that bureaus make sound 

decisions informed by the ‘‘cumulative 

and incremental environmental 

impacts’’ of the proposed projects and 

how those impacts will actually affect 

the environment.’’ Several groups stated 

that vague language for past actions to 

be included in cumulative impact 

analysis will result in more confusion 

and litigation. 

Response: At section 46.115, this final 

rule incorporates guidance on the 

analysis of past actions from the June 

24, 2005 CEQ Guidance on the 

Consideration of Past Actions in 

Cumulative Effects Analysis, which may 

be found at http://ceq.eh.doe.gov/nepa/ 

regs/Guidance_on_CE.pdf. This section 

is consistent with existing CEQ 

regulations, which use the terms 

‘‘effects’’ and ‘‘impacts’’ synonymously 

and define cumulative impact as ‘‘the 

incremental impact of an action when 

added to other past, present, and 

reasonably foreseeable future actions’’ 

(40 CFR 1508.7). 

The focus of the CEQ guidance 

incorporated in this final rule is on the 

consideration of useful and relevant 

information related to past actions when 

determining the cumulative effects of 

proposals and alternatives. Bureaus will 

conduct cumulative effects analyses 

necessary to inform decision-making 

and disclose environmental effects in 

compliance with NEPA. A ‘‘significant 

cause-and-effect’’ filter is specifically 

provided for in the CEQ guidance. 

To clarify the Department’s 

commitment to follow CEQ guidance 

concerning consideration of past 

actions, the final rule at section 46.115 

is revised to state, ‘‘When considering 

the effects of past actions as part of a 

cumulative effects analysis, the 

Responsible Official must analyze the 

effects in accordance with 40 CFR 

1508.7 and in accordance with relevant 

guidance issued by the Council on 

Environmental Quality, such as ‘The 

Council on Environmental Quality 

Guidance Memorandum on 

Consideration of Past Actions in 

Cumulative Effects Analysis’ dated June 

24, 2005, or any superseding Council on 

Environmental Quality guidance.’’ The 

Department believes that by 

incorporating CEQ’s guidance we have 

included sufficient specificity in the 

rule; any other ‘‘how to’’ information 

may be provided through the 

Departmental chapters in the DM, 

environmental statement memoranda 

series, or bureau-specific explanatory 

and informational directives. 

Comment: Groups expressed concern 

over the definition of ‘‘reasonably 

foreseeable future actions’’ and 

suggested this definition should be 

removed from the final proposal. They 

understood that the Department cannot 

conduct a ‘‘crystal ball’’ analysis but 

that actions should be considered in the 

analysis even if decisions and funding 

for specific future proposals does not 

exist. 

Response: The Department agrees. In 

response, the Department has added 

specificity and provided guidance on 

what should be considered a reasonably 

foreseeable future action in order to 

ensure that speculative activities or 

actions are not incorporated into the 

analysis while actions that may inform 

the RO’s analysis of cumulative impacts 

for the proposed action are included, 

even if they are not yet funded, 

proposed, or the subject of a decision 

identified by the bureau. This approach 

is consistent with CEQ regulations. 

Section 46.120 Using existing 

environmental analyses prepared 

pursuant to NEPA and the Council on 

Environmental Quality regulations. This 

section explains how to incorporate 

existing environmental analysis 

previously prepared pursuant to NEPA 

and the CEQ regulations into the 

analysis being prepared. 

Comment: Several individuals agreed 

that using existing documentation will 

reduce lengthy analysis and duplication 

of work and applaud the Department for 

including this section in the proposed 

rule. However, commenters would like 

a provision added to the section to 

ensure the supporting documentation is 

provided to the public online and in the 

bureau’s office. 

Response: The Department agrees that 

any information relied upon in a NEPA 

analysis should be publicly available, 

either independently or in connection 

with the specific proposed action at 


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issue, and has so stated in section 

46.135. 

Section 46.125 Incomplete or 

unavailable information. CEQ 

regulations at 40 CFR 1502.22 provide 

‘‘When an agency is evaluating 

reasonably foreseeable significant 

adverse effects on the human 

environment in an environmental 

impact statement and there is 

incomplete or unavailable information, 

the agency shall always make clear that 

such information is lacking’’ and sets 

out steps that agencies must follow in 

these circumstances. This section 

clarifies that the overall costs of 

obtaining information referred to in 40 

CFR 1502.22 are not limited to the 

estimated monetary cost of obtaining 

information unavailable at the time of 

the EIS, but can include other costs such 

as social costs that are more difficult to 

monetize. Specifically, the Department 

requested comments on whether to 

provide guidance on how to incorporate 

non-monetized social costs into its 

determination of whether the costs of 

incomplete or unavailable information 

are exorbitant. The Department also 

requested comments on what nonmonetized social costs might be 

appropriate to include in this 

determination; e.g., social-economic and 

environmental (including biological) 

costs of delay in fire risk assessments for 

high risk fire-prone areas. 

Comment: Many commenters 

expressed concern with the incomplete 

or unavailable information section. 

They stated that the rule does not 

provide guidance to bureaus on how to 

address ‘‘non-monetized social costs.’’ 

Some individuals stated that critical 

information is missing from this section, 

such as an exclusive list of nonmonetized social costs. Several groups 

suggested the Department expand on 

CEQ regulation section 1502.22 which 

addresses agency procedure in the face 

of incomplete or unavailable 

information. Groups stated that the 

Department should ‘‘direct its bureaus 

to specifically evaluate the risks of 

proceeding without relevant 

information, including risks to sensitive 

resources.’’ Some suggested the 

Department provide their findings to the 

public so the public can provide 

meaningful comment and scrutiny. 

They stated that this approach would be 

more consistent with case law and with 

CEQ regulations. Groups stated that if 

the section remains ‘‘as is,’’ the 

Department has provided ‘‘the bureaus 

with an incentive to cease collecting 

information and providing it to the 

public.’’ One group stated that the 

proposed rule encourages agencies to 

find reasons not to obtain information 

that they have already acknowledged is 

relevant to reasonably foreseeable 

significant impacts and that this 

message is contrary to NEPA and CEQ 

regulations. Several other commenters 

noted that the proposed rule provides 

clarity in assessing the monetary costs 

of gathering information and is 

consistent with CEQ regulations. 

Response: The Department believes 

that section 46.125 provides guidance 

sufficient to implement 40 CFR 1502.22 

in so far as CEQ’s regulation addresses 

this issue of costs. The Department has 

added some language in response to 

comments regarding what sorts of 

considerations constitute ‘‘nonmonetized social costs.’’ However, the 

Department believes that other factors 

that may need to be weighed include the 

risk of undesirable outcomes in 

circumstances where information is 

insufficient or incomplete. Paragraph 

1502.22(b) specifically provides for the 

steps the Department will take if the 

overall cost of obtaining the data is 

exorbitant or the means to obtain the 

data are not known. 

Comment: One commenter suggested 

that the Department must ‘‘utiliz[e] 

public comment and the best available 

scientific information’’ and 

recommended including a provision to 

this effect in the final rule. 

Response: There is no question that 

public involvement is an integral part of 

the NEPA process and can take a variety 

of forms, depending on the nature of the 

proposed action and the environmental 

document being prepared; therefore the 

final rule includes several provisions 

addressing public involvement. There 

is, however, some level of confusion 

regarding the data standard applicable 

to the type of information NEPA 

requires. The assertion is frequently 

made in court cases, as the commenter 

suggests here, that NEPA analyses must 

use the ‘‘best available science’’ to 

support their conclusions. In fact, the 

‘‘best available science’’ standard comes 

from section 7 of the Endangered 

Species Act, specifically 16 U.S.C. 

1536(a)(2), which requires that ‘‘each 

agency shall use the best scientific and 

commercial data available’’ when 

evaluating a proposed action’s impact 

on an endangered species. In addition, 

the ‘‘best available science’’ standard is 

used by the United States Department of 

Agriculture Forest Service’s regulations 

implementing the National Forest 

Management Act of 1976, 16 U.S.C. 

1600 et seq. (see Final Rule and Record 

of Decision, National Forest System 

Land Management Planning Part III, 73 

Fed. Reg. 21468 (Apr. 21, 2008) (to be 

codified at 36 CFR Part 219)). NEPA 

imposes a different standard: rather than 

insisting on the best scientific 

information available, CEQ regulations 

demand information of ‘‘high quality’’ 

and professional integrity. 40 CFR 

1500.1, 1502.24. Therefore, the 

Department declines to accept the 

commenter’s recommendation. 

Section 46.130 Mitigation measures 

in analyses. This section has been 

clarified from the proposed rule. The 

revision clarifies how mitigation 

measures and environmental best 

management practices are to be 

incorporated into and analyzed as part 

of the proposed action and its 

alternatives. 

Comment: Most individuals stated 

that the Department should address 

mitigation measures in the proposed 

rule. These individuals explained that, 

in order to provide interested parties an 

accurate portrayal of potential effects, it 

is necessary to include all mitigation 

measures in the impacts analysis. 

Several individuals indicate the 

language in the proposed rule is broad 

and unclear. Several groups opposed the 

proposed rule in its current form and 

suggested that the Department should 

revise and narrow the rule to ‘‘clarify 

that possible mitigation measures are 

discussed in NEPA documents in order 

to help inform an agency’s decision, but 

reflect the well-settled legal principle 

that the agency need not guarantee that 

particular mitigation measures be 

implemented or that such mitigation 

measures be successful.’’ One group 

suggested that the Department revise the 

proposed rule to clarify that NEPA does 

not require agencies to adopt particular 

mitigation measures or to guarantee the 

success of the mitigation plans. One 

group stated that avoiding significant 

environmental effects should be the 

primary goal in the development of any 

proposed action and mitigation should 

be a final course of action when all 

other attempts to avoid impacts have 

been exhausted. 

Response: The Department agrees 

with the comments about the 

importance of mitigation; the provision 

addressing mitigation is carried forward 

into this final rule. The Department has, 

however, refined the language of the 

provision for clarity. The Department 

agrees that NEPA does not require 

bureaus to adopt particular mitigation 

measures and that it is not possible to 

guarantee the success of mitigation 

plans, but does not believe revision to 

the final rule reflecting this 

understanding is necessary. 

Comment: One group argued that 

including mitigation measures in the 

effects analysis is crucial to demonstrate 

that potential effects can be mitigated 

through the use of stipulations, 


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conditions of approval, and best 

management practices. They did not 

believe it necessary to ‘‘strip’’ mitigation 

measures or best management practices 

from an applicant’s proposal just for the 

sake of analyzing the stripped down 

version. 

Response: It was not the Department’s 

intent that applicants’ proposals be 

stripped of all best management 

practices or mitigation measures. The 

Department has included language to 

clarify this point. Independent of NEPA, 

any application must provide a proposal 

that includes any ameliorative design 

elements (for example, stipulations, 

conditions, or best management 

practices) required to make that 

proposal conform to legal requirements. 

In addition, the applicant’s proposal 

presented to the bureau for decisionmaking will include any voluntary 

ameliorative design element(s) that are 

part of the applicant’s proposal. 

Therefore, the analysis of the applicant’s 

proposal, as an alternative, includes, 

and does not strip out, these elements. 

Should the bureau wish to consider 

and/or require any additional mitigation 

measures other than the design elements 

included in the applicant’s proposal, the 

effects of such mitigation measures must 

also be analyzed. This analysis can be 

structured as a matter of consideration 

of alternatives to approving the 

applicant’s proposal or as separate 

mitigation measures to be imposed on 

any alternative selected for 

implementation. 

Section 46.135 Incorporation of 

referenced documents into NEPA 

analysis. This section establishes 

procedures for incorporating referenced 

documents as provided for in the CEQ 

regulations at 40 CFR 1502.21. 

No comments were received on this 

section, but clarifying changes have 

been made in this final rule. 

Section 46.140 Using tiered 

documents. This section clarifies the 

use of tiering. As contemplated in the 

preamble to the rule, and in response to 

favorable comments, the Department 

has added a new subsection clarifying 

that an environmental assessment may 

be prepared, and a finding of no 

significant impact reached, for a 

proposed action with significant effects, 

whether direct, indirect, or cumulative, 

if the environmental assessment is 

tiered to a broader environmental 

impact statement which fully analyzed 

those significant effects. Tiering to the 

programmatic or broader-scope 

environmental impact statement would 

allow the preparation of an 

environmental assessment and a finding 

of no significant impact for the 

individual proposed action, so long as 

any previously unanalyzed effects are 

not significant. The finding of no 

significant impact, in such 

circumstances, would be, in effect, a 

finding of no significant impact other 

than those already disclosed and 

analyzed in the environmental impact 

statement to which the environmental 

assessment is tiered. The finding of no 

significant impact in these 

circumstances may also be called a 

‘‘finding of no new significant impact.’’ 

In addition, the provision requiring 

bureaus to review existing directives 

addressing tiering, and listing topics 

that must be included in such directives 

has been removed from the final rule as 

not appropriate for regulatory treatment. 

The numbering of the subsections has 

been adjusted accordingly. 

Comment: One group supported using 

existing analyses to avoid duplication of 

effort and to minimize costs. However, 

they stated that the Department should 

clearly indicate that existing data does 

not need to be supplemented with new 

data if there is no evidence that the 

current conditions differ from the 

conditions in which the existing data 

was developed. 

Response: The Department concurs 

with the comment, but believes that it 

has been addressed in paragraph 

46.140(a). As contemplated in the 

preamble to the rule, and in response to 

favorable comments, the Department 

has added a new paragraph 46.140(c). 

Section 46.145 Using adaptive 

management. This section incorporates 

adaptive management as part of the 

NEPA planning process. 

Comment: Most commenters 

supported the concept of adaptive 

management. However, they stated that 

the Department has not clearly 

explained how adaptive management 

will be incorporated into the NEPA 

process. One individual believed 

adaptive management could be a useful 

tool in allowing ‘‘mid-course 

corrections’’ without requiring new or 

supplemental NEPA review. Several 

groups suggest that the Department 

clarify that adaptive management is 

only appropriate where risk of failure 

will not cause harm to sensitive 

resources. Also, they stated that a 

requirement for a sufficient inventory of 

current conditions of affected resources 

should be included in the adaptive 

management plan. A detailed 

monitoring plan should be developed 

with specific indicators that will serve 

to define the limits of acceptable 

change. They also requested a 

‘‘fallback’’ plan, which would be 

implemented if adaptive management, 

monitoring, or funding is not available. 

Several commenters suggested the 

Department include sufficient detail and 

commitments as to how impacts will be 

measured, avoided, and mitigated. They 

urged the Department to make this plan 

available for public comment. Another 

group suggested that the Department 

clearly delineate the scope, duration, 

and availability of funding for any 

planned monitoring programs before 

they are implemented. One individual 

suggested that the Department include 

additional detail that will clarify how 

and when it is appropriate to evaluate 

the effects of adaptive management in 

subsequent NEPA analysis. Another 

commenter suggests the Department 

develop a manual to demonstrate to 

managers circumstances where adaptive 

management has worked on-the-ground. 

Many groups were concerned that 

adaptive management is a costly 

practice and will result in accruing 

additional costs for project proponents. 

One group was concerned that lack of 

information may be used to excuse and 

allow actions to proceed without 

sufficient protective measures in place. 

Some commenters expressed concern 

that it would be impossible to 

adequately analyze impacts of adaptive 

management ‘‘since those actions rely 

on future conditions that could be 

complicated and cumulative.’’ 

Modifications to requirements and 

conclusions in decision documents 

must be allowed to ensure appropriate 

adjustments to management actions, 

according to one group. One commenter 

was concerned that the Department may 

misuse adaptive management with 

regard to on-the-ground monitoring due 

to lack of funding. Another group 

suggested the project proponent should 

play a role in defining the adaptive 

management strategy and ensuring 

funding will be available. They also 

suggested the Department clarify that 

public involvement is welcome but 

adaptive management strategies and 

implementation are the full 

responsibility of the agency. 

Groups questioned adaptive 

management’s consistency with current 

case law, NEPA, and CEQ regulations. 

Several commenters suggested that this 

section should be eliminated due to its 

inconsistencies with NEPA and CEQ. 

Due to lack of CEQ framework and no 

guidance for implementation, one group 

suggested that the Department should 

remove this section from the proposed 

rule. 

Response: The Department has made 

minor wording changes to this section. 

Adaptive Management (AM) is an 

approach to management; however, it 

can be integrated with the NEPA 

process. The establishment of specific 

provisions with respect to the use of AM 


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is beyond the scope of this rule. The 

intent of this provision is only to clarify 

that the use of an AM approach is not 

inconsistent with NEPA. That is, 

proposed actions must be analyzed 

under NEPA. Each proposed action, 

including possible changes in 

management resulting from an AM 

approach, may be analyzed at the outset 

of the process, or these changes in 

management may be analyzed when 

actually implemented. 

Section 46.150 Emergency 

responses. This section clarifies that 

ROs, in response to the immediate 

effects of emergencies, can take 

immediate actions necessary to mitigate 

harm to life, property, or important 

resources without complying with the 

procedural requirements of NEPA, the 

CEQ regulations, or this rule. 

Furthermore, ROs can take urgent 

actions to respond to the immediate 

effects of an emergency when there is 

not sufficient time to comply with the 

procedural requirements of NEPA, the 

CEQ regulations, or this rule by 

consulting with the Department (and 

CEQ in cases where the response action 

is expected to have significant 

environmental impacts) about 

alternative arrangements. 

Comment: Some commenters 

expressed concern regarding the broad 

definitions provided in the emergency 

response section. They stated the 

section is ‘‘written too broadly and 

could potentially lead to the misuse of 

the provision that would allow a bureau 

to bypass the preparation of an 

environmental document.’’ One group 

objected to the lack of specificity in 

terms provided in this section, such as 

‘‘emergency,’’ ‘‘emergency actions,’’ 

‘‘immediate impact,’’ and ‘‘important 

resources,’’ leaves uncertainty as to how 

this provision may be implemented by 

the Department. 

Response: There is no special 

meaning intended for the term 

‘‘emergency’’ beyond its common usage 

as ‘‘an unforeseen combination of 

circumstances or the resulting state that 

calls for immediate action’’ (Webster’s 

Third New International Dictionary Of 

The English Language 1961 and 

Merriam-Webster’s Collegiate Dictionary 

(11th ed. 2004)); ‘‘a sudden, urgent, 

usually unexpected occurrence or 

occasion requiring immediate action’’ 

(Random House Dictionary Of The 

English Language (2ed. 1987)); ‘‘a state 

of things unexpectedly arising, and 

urgently demanding immediate action’’ 

(The Oxford English Dictionary 2ed. 

1991) and ‘‘[a] situation that demands 

unusual or immediate action and that 

may allow people to circumvent usual 

procedures * * *’’ (Black’s Law 

Dictionary 260, 562 (8th ed. 2004)). The 

proposed regulation, as revised in this 

final rule, recognizes that responsible 

officials can take immediate actions to 

control the immediate impacts of an 

emergency to mitigate harm to life, 

property, or important natural or 

cultural resources. 

The final rule, at section 46.150, 

replaces ‘‘other important resources’’ 

with ‘‘important natural, cultural, or 

historic resources’’ to more clearly 

identify the type of resources impacted 

by the emergency. The Department has 

not defined an emergency because it is 

impossible to list all circumstances that 

constitute an emergency; it is up to the 

RO to decide what constitutes an 

emergency. 

Only such actions required to address 

the ‘‘immediate impacts of the 

emergency that are urgently required to 

mitigate harm to life, property, or 

important natural, cultural, or historic 

resources’’ may be taken without regard 

to the procedural requirements of NEPA 

or the CEQ regulations. Thus, there are 

no NEPA documentation requirements 

for these types of situations and the 

final rule requires NEPA to apply to any 

and all subsequent proposed actions 

that address the underlying emergency 

(paragraphs 46.150 (c) and (d)). The 

provisions of section 46.150 codify the 

existing Department practice and CEQ 

guidance for emergency actions. 

Comment: Another group suggested 

that the Department add a sentence that 

states ‘‘the RO shall document in 

writing the action taken, any mitigation, 

and how the action meets the 

requirements of this paragraph.’’ Several 

commenters stated that this section does 

not comply with Congress’ mandate to 

comply with NEPA and CEQ 

regulations. Several groups believed the 

proposed rule would allow a bureau to 

implement any action at any time and 

avoid the NEPA planning process. 

Others stated that the ‘‘important 

resources’’ clause should be removed 

from this section. Several commenters 

were concerned that the Department is 

implementing emergency response in 

order to preclude analysis of fire 

suppression activities. 

Response: The Department agrees that 

the RO should document the 

determination of an emergency and 

have modified the final rule to require 

this. The Department will continue to 

act to protect lives, property, and 

important natural, cultural, or historic 

resources through means including the 

use of fire suppression. The Department 

notes that fire suppression alternatives 

are addressed in plans that are subject 

to NEPA analysis. 

Section 46.155 Consultation, 

coordination, and cooperation with 

other agencies. This section describes 

the use of procedures to consult, 

coordinate, and cooperate with relevant 

State, local, and tribal governments, 

other bureaus, and Federal agencies 

concerning the environmental effects of 

Department plans, programs, and 

activities. The Department deleted the 

reference to organizations since this 

section will deal only with Federal, 

State, and tribal governmental entities. 

Material related to consensus-based 

management has been moved to section 

46.110 in order to consolidate all 

provisions related to consensus-based 

management. Paragraph 46.155(b), 

directing bureaus to develop procedures 

to implement this section, has been 

deleted as not appropriate for regulatory 

treatment. 

Comment: Many commenters 

supported this section and stated 

collaboration would benefit all 

interested parties. 

Response: The Department 

appreciates the comments. 

Comment: Some individuals pointed 

out that consensus is often unachievable 

and unnecessary. One group stated that 

the Department should put federal 

project reviews into a consensus 

building process to ensure that opinions 

and experience are captured in the 

NEPA process. 

Response: Please see our response 

above to comments on section 46.110. 

Comment: Many groups suggested the 

Department require bureaus to work 

with cooperating agencies, such as the 

U.S. Fish and Wildlife Service. One 

commenter indicated that the 

Department should ensure that 

enhanced involvement does not add 

unnecessary cost or burden to project 

proponents. They also stated that 

‘‘memorializing cooperative 

conservation in regulations, rather than 

policy guidance, will result in 

unnecessary burdens and litigation.’’ 

Response: The Department requires 

that the RO of the lead bureau consider 

any request by an eligible government 

entity to participate in a particular EIS 

as a cooperating agency. The 

Department recognizes that an emphasis 

on the use of cooperating agencies may 

result in additional steps in the NEPA 

process, but is likely to lead to 

improved cooperative conservation and 

enhanced decision making. Executive 

Order 13352 on Facilitation of 

Cooperative Conservation requires all 

federal agencies to implement 

cooperative conservation in their 

programs and activities. Cooperative 

conservation is consistent with the CEQ 

requirement that agencies should 


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encourage and facilitate public 

involvement in the NEPA process. See 

40 CFR 1500.2(d), 1506.6. 

Comment: Several tribes expressed 

concern that the proposed rule will 

negate the government-to-government 

consultation with tribes. The tribes 

believed that the Department should 

include a provision to ensure Indian 

tribes are given the opportunity to fully 

participate in the NEPA process and 

address concerns that are unique to each 

action. 

Response: See our response above 

with respect to government-togovernment consultation under section 

46.110. 

Section 46.160 Limitations on 

actions during the NEPA analysis 

process. This section incorporates 

guidance to aid in fulfilling the 

requirements of 40 CFR 1506.1. 

Comment: Several individuals agreed 

with the proposed rule and believe there 

is legal authority to support this section. 

One individual suggested that the 

Department should address actions that 

can be taken while a ‘‘project’’ is 

underway, specifically ‘‘actions taken 

by a private project applicant that are 

outside the jurisdiction of the bureau 

are not an irreversible or irretrievable 

commitment of agency resources.’’ They 

suggested the Department add a 

provision to this section to clarify the 

Department’s commitment to projects. 

Although the direction is clear in the 

provision, one group stated bureau field 

offices are not adhering to this policy 

and that an additional provision should 

be added to this section regarding the 

use of existing NEPA documents for 

major federal actions. Another group 

wanted the Department to add an 

additional sentence clarifying that a 

particular action must be justified 

independently of the program and will 

not prejudice the ultimate decision of 

the proposed program. 

Response: The Department 

appreciates the support expressed for 

this provision. The Department believes 

that this provision is clear and 

consistent with 40 CFR 1506.1 and does 

not believe any additional statement to 

this effect need be added to the final 

rule. The requested addition is not 

required because the provision here at 

section 46.160 only addresses situations 

where the major Federal action is within 

the scope of and analyzed in an existing 

NEPA document supporting the current 

plan or program. With respect to current 

practice within the Department, as 

explained in the preamble to the 

proposed rule, see 73 FR 126 (Jan. 2, 

2008), the Department believes that one 

of the benefits of establishing this final 

rule is greater transparency in the NEPA 

process. Such transparency is likely to 

improve consistency of implementation 

across the Department, as well. 

Section 46.165 Ensuring public 

involvement. This section has been 

removed from the final rule. CEQ 

regulations include requirements for 

public involvement in the preparation 

of an EIS. Section 46.305 of this final 

rule addresses public involvement in 

the EA process. The requirement in 

paragraph 46.305(a), that the bureau 

must, to the extent practicable, provide 

for public notification and public 

involvement when an EA is being 

prepared, includes an element of 

timeliness. The RO has the discretion to 

choose method(s) of public notification 

and public involvement that ensure 

that, if practicable, the public receives 

timely information on the proposed 

action. 

Comment: One commenter stated that 

this provision does not provide clarity 

in the role of public participation. They 

suggested the Department add 

additional language to explain the 

timing, processes and opportunities this 

provision will provide. 

Response: CEQ regulations 

implementing NEPA direct agencies to 

encourage and facilitate public 

involvement in the NEPA process ‘‘to 

the fullest extent possible.’’ 40 CFR 

1500.2(d); see also 40 CFR 1506.6. 

Bureaus conduct a wide variety of 

actions under various conditions and 

circumstances. Therefore, the 

Department has determined that the best 

approach is for individual bureaus to 

provide direction as to how ROs should 

exercise their discretion in ensuring that 

this involvement takes place in a 

manner practicable in the particular 

circumstances of each proposed action, 

but that it is not appropriate to provide 

specifics as to how this should occur in 

this final rule. The Department has 

provided some information regarding 

public involvement in ESM 03–4 and 

may address this topic in future ESMs. 

Section 46.170 Environmental 

effects abroad of major Federal actions. 

This section describes procedures the 

bureaus must follow in implementing 

EO 12114, which ‘‘represents the United 

States government’s exclusive and 

complete determination of the 

procedural and other actions to be taken 

by Federal agencies to further the 

purpose of the National Environmental 

Policy Act, with respect to the 

environment outside the United States, 

its territories and possessions.’’ 

No comments were received on this 

provision. 

Subpart C: Initiating the NEPA Process 

In the conversion from 516 DM 2 to 

43 CFR Part 46, Subpart C, we have 

restructured the Department’s 

requirements for initiating the NEPA 

process. We have put into regulations 

the essential parts of the NEPA process 

that are unique to the Department and 

which require further clarification of the 

CEQ regulations. This rule clarifies the 

requirements for applying NEPA early, 

using categorical exclusions (CEs), 

designating lead agencies, determining 

eligible cooperating agencies, 

implementing the Department’s scoping 

process, and adhering to time limits for 

the NEPA process. 

Section 46.200 Applying NEPA 

early. This section emphasizes early 

consultation and coordination with 

Federal, State, local, and tribal entities 

and with those persons or organizations 

who may be interested or affected 

whenever practical and feasible. A new 

paragraph 46.200(e) has been added to 

clarify that bureaus must inform 

applicants as soon as practicable of any 

responsibility they will bear for funding 

environmental analyses associated with 

their proposals. Any cost estimates 

provided to applicants are not binding 

upon the bureau. This provision had 

already been included with respect to 

the preparation of EISs, but should also 

have been included with respect to EAs. 

Therefore, the provision has been 

moved from 46.400 (EISs) to 46.200. 

Comment: Some commenters 

supported this section of the proposed 

rule as it is currently written. 

Response: The Department 

appreciates the comments. 

Comment: Some commenters stated 

that the proposed rule is not clear with 

respect to how community-based 

training will be conducted and what the 

content of the training will include. 

These commenters suggested the 

proposed rule should provide a detailed 

discussion of the purpose of such 

training, as well as when it is warranted. 

Response: The Department has 

determined that this topic is most 

appropriately addressed in the 

environmental statement memoranda. 

Community-based training, including 

the content of the training, is included 

in ESM03–7 and, if appropriate, will be 

expanded in future ESMs or bureauspecific explanatory and informational 

directives. No change to the proposed 

rule has been made. 

Comment: Some commenters also 

recommended that the proposed rule 

should clarify that it does not expand 

the amount of information required for 

applications under the relevant 

substantive statute. 


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Response: The final rule does not 

expand the amount of information 

required beyond what is required by 

NEPA and CEQ regulations, which may 

be more than the information required 

for applications under the relevant 

substantive statute. This provision 

simply provides that the bureaus be 

forthcoming with descriptions of 

information that the applicant may 

need. 

Comment: A few commenters stated 

that public involvement should be 

limited to submitting comments on the 

scoping notice, attending public 

meetings, and submitting comments on 

the final version of draft NEPA 

documents. Various commenters suggest 

that the proposed rule require early 

consultation with applicants. Others 

proposed additional changes to the 

proposed rule to further facilitate early 

coordination between the Department 

and applicants. These commenters 

recommended that the proposed rule 

distinguish between public involvement 

in the EA process and the EIS process. 

Response: As noted above, CEQ 

regulations implementing NEPA direct 

agencies to encourage and facilitate 

public involvement in the NEPA 

process ‘‘to the fullest extent possible.’’ 

40 CFR 1500.2(d); see also 40 CFR 

1506.6. The Department is encouraging 

enhanced public involvement and 

broad-based environmental 

coordination early in the NEPA process. 

The purpose is to facilitate better 

outcomes by encouraging dialogue 

among the affected parties. Public 

involvement is encouraged during the 

EA and EIS process. CEQ regulations 

prescribe the manner in which the 

minimum level of public involvement 

must be carried out under the EIS 

process; the manner of conducting 

public involvement in the EA process is 

left to the discretion of RO. 

Section 46.205 Actions categorically 

excluded from further NEPA review. 

This section provides Departmentspecific guidance on the use of 

categorical exclusions. 

Comment: Many commenters 

supported this section of the proposed 

rule as it is currently written. These 

commenters supported the position that 

NEPA does not ‘‘apply to statutorily 

created categorical exclusions,’’ such as 

those created by Congress in 2005. 

Response: The Department concurs 

that legislation governs the application 

of statutory categorical exclusions. For 

example, the Energy Policy Act of 2005 

(EPAct) establishes how NEPA applies 

with respect to these categorical 

exclusions. 

Comment: Several groups suggested 

that the Department ‘‘ensure that its 

bureaus involve the public in the 

development and application of CEs and 

clearly state that extraordinary 

circumstances need to be provided for 

unless Congress specifically exempts an 

agency from doing so.’’ These groups 

maintained that CE disagreements could 

be reduced through greater transparency 

in their application. Some of these 

comments recommended the deletion of 

paragraph 46.205(d) from the proposed 

rule. Overall, commenters generally 

believed it is important to articulate the 

extraordinary circumstance under 

which a CE will not apply. 

Response: As noted above, CEQ 

regulations include specific 

requirements for the establishment of 

procedures, including CEs, for 

implementing NEPA. When established 

as part of the DM, the categories listed 

in the final rule and the extraordinary 

circumstances language were approved 

by CEQ and subject to public review 

and comment, in accordance with 40 

CFR 1507.3, by publication in the 

Federal Register, March 8, 2004 (69 FR 

10866). The final CEs, as originally 

published in the DM, and as presented 

in this final rule, were developed based 

on a consideration of those comments. 

The Department has provided for 

extraordinary circumstances in the 

application of its CEs. Each bureau has 

a process whereby proposed actions are 

evaluated for whether particular CEs are 

applicable including whether 

extraordinary circumstances exist. As 

noted above, part of the Department’s 

intent in publishing its NEPA 

procedures as regulations is to increase 

transparency in their implementation. 

By moving its NEPA procedures, 

including CEs and the listing of 

extraordinary circumstances from the 

DM to regulations, the Department does 

not intend to alter the substance of these 

CEs or extraordinary circumstances. In 

paragraph 46.205(d) the Department is 

merely acknowledging the fact that 

Congress may establish CEs by 

legislation, in which case the terms of 

the legislation determine how to apply 

those CEs. 

Section 46.210 Listing of 

Departmental Categorical Exclusions. 

This section includes a listing of the 

Department’s CEs (currently 516 DM 

Chapter 2, Appendix B–1). The CEs are 

in paragraphs (a) through (l). These CEs 

were all published for public comment 

prior to inclusion in the DM. This 

section includes the same number of 

CEs as were in the DM and the wording 

in the CEs is unchanged, with five 

exceptions. Four of those changes are 

made between the rule as proposed and 

final because of minor editorial changes 

from how the categorical exclusions 

appeared in the DM. 

First, § 46.210(b) has been revised 

from ‘‘Internal organizational changes 

and facility and office reductions and 

closings’’ as it appeared in the DM to 

‘‘Internal organizational changes and 

facility and bureau reductions and 

closings’’ to conform to the definition of 

‘‘bureau’’ in the final rule, at § 46.30, 

which includes ‘‘office.’’ The DM had 

not provided a definition of ‘‘bureau’’ 

and so used both ‘‘bureau’’ and ‘‘office.’’ 

Second, the word ‘‘development’’ was 

inadvertently added, so that the 

parenthetical in the proposed rule at 

§ 46.210(c) read ‘‘(e.g., in accordance 

with applicable procedures and 

Executive Orders for sustainable 

development or green procurement).’’ 

This change has been deleted from this 

final rule. 

Third, the numbering system has been 

changed in the CE § 46.210(k) from the 

DM, originally published as final on 

June 5, 2003 (68 FR 33814), in order to 

more clearly set out the requirements for 

use of the CE for hazardous fuels 

reduction activities. The meaning of the 

CE has not changed. And fourth, in 

paragraphs 46.210(k) and (l), the 

citations to the ESM series, which 

appeared in parentheticals in the DM, 

but as footnotes in the Notice published 

on March 8, 2004 (69 FR 10866), have 

been placed in the text itself for ease of 

reference. 

Finally, paragraph 46.210(i), which 

replaces 516 DM Chapter 2, Appendix 

B–1, Number 1.10, has been changed to 

correct an error during the finalization 

of the revision to these DM chapters in 

2004. Prior to 1984, and up until 2004, 

this CE, as established and employed by 

the Department, covered ‘‘Policies, 

directives, regulations, and guidelines 

that are of an administrative, financial, 

legal, technical, or procedural nature; or 

the environmental effects of which are 

too broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase.’’ 49 FR 21437 (May 21, 1984); 516 

DM 2, Appendix 1 (June 30, 2003) 

(Archived versions of 516 DM chapters, 

including the 1984, 2003, and 2004 

versions of 516 DM 2, may be accessed 

at http://elips.doi.gov/app_dm/ 

index.cfm?fuseaction=ShowArchive). 

No problems with the use of the CE 

were brought to the attention of the 

Department during this period. It is the 

version of the CE that was in place prior 

to 2004 that was proposed in the 

Department’s January 2, 2008 Notice of 

Proposed Rulemaking (73 FR 126, 130), 

and is announced as final in the rule 

published today. 


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From 2004, however, a slightly 

different version of the CE appeared in 

the DM chapters. In 2000, the 

Department proposed revisions to 516 

DM, including 516 DM 2. 65 FR 52212, 

52215 (Aug. 28, 2000). No change was 

proposed to this CE at that time, and no 

comments were received regarding this 

CE. No further action was taken on the 

2000 proposal until 2003, when the 

Department again published the 

proposed revision to the 516 DM 

chapters at issue; however, as proposed 

this revision included an erroneous 

change to this CE. 68 FR 52595 (Sept. 

4, 2003). No comments were received 

regarding this CE in response to the 

2003 Notice. As a result, although no 

change had been intended, the 

following version was published as final 

in 2004 (69 FR 10866, 10877–78 (Mar. 

8, 2004)), and incorporated into 516 DM 

2, Appendix 1.10: ‘‘Policies, directives, 

regulations, and guidelines that are of 

an administrative, financial, legal, 

technical, or procedural nature and 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase.’’ 

As noted in the preamble to the 

proposed rule, published January 2, 

2008 (73 FR 126, 130), the Department 

is correcting an unintended drafting 

error in the 2004 Rule. The text which 

previously described two categories of 

policies, directives, regulations and 

guidelines (‘‘* * * that are of an 

administrative, financial, legal, 

technical, or procedural nature; or the 

environmental effects of which are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process * * *’’), was replaced with a 

more restrictive category of policies, 

directives, regulations and guidelines 

(‘‘* * * that are of an administrative, 

financial, legal, technical, or procedural 

nature and whose environmental effects 

are too broad, speculative, or conjectural 

to lend themselves to meaningful 

analysis and will later be subject to the 

NEPA process * * *’’). During the 

Departmental review beginning in 2006, 

in preparation for this rulemaking, the 

Department discovered the drafting 

error that infected both the 2003 

proposal and the 2004 final revision to 

the DM. This error has made it difficult 

to use the CE as originally intended, and 

has engendered confusion in the 

Department. It is now clear that the 

erroneous version that became final in 

2004, though inadvertent, had resulted 

in a substantive difference in meaning. 

For example, the use of the word ‘‘and’’ 

made it difficult to apply the CE to an 

agency action, such as a procedural rule, 

that has no individual or cumulative 

significant environmental effects. With 

the correction effectuated by this 2008 

rulemaking (no comments were received 

with respect to this proposed 

correction), this CE has now been 

replaced with its original version. As 

such, actions such as procedural rules 

with no individual or cumulative 

significant environmental effects are 

covered by the categorical exclusion, as 

well as circumstances where the action 

will later be subject to NEPA 

compliance. 

Comment: One commenter stated that 

the bureau-specific CEs should be 

included in the proposed rule. 

Comments also suggest the addition of 

a new category in the proposed rule 

which allows the bureaus the discretion 

to establish other Departmental CEs 

which are consistent with 43 CFR 

46.205. One group suggests revising the 

proposed rule to cross-reference bureauspecific CEs. This group maintained that 

this cross-reference will provide better 

information for the public, as well as 

promote greater transparency in the 

NEPA process. 

Response: Bureau specific CEs are 

listed separately in the 516 DM Chapters 

8–15 to reflect bureau specific mission 

and activities. Those DM Chapters 

remain in effect. Bureaus have specific 

resource management and 

environmental conservation 

responsibilities and their CEs are 

tailored to these unique missions and 

mandates. The Departmental CEs are 

general and are applicable throughout 

the Department and across all bureaus. 

Bureaus have the discretion to propose 

additional CEs that apply in a bureau 

specific context and which are included 

in the bureau specific chapters of the 

DM. If appropriate, bureaus can also 

propose to the Department additional 

CEs to augment those already in this 

rule for future consideration. Such 

additional proposed CEs would have to 

be consistent with the broad nature of 

the already existing Departmental CEs. 

Cross referencing is unnecessary 

because bureau specific CEs are unique 

to that particular bureau and do not 

apply to other bureaus. 

Comment: Several groups cited 40 

CFR 1508.27(b), and stated that the 

Department ‘‘must also perform a 

cumulative effects analysis prior to 

promulgation of the CE.’’ These groups 

stated that impacts analysis at the 

project level does not relieve the 

Department from the obligation to 

ensure that the CE has no cumulative 

impacts. These groups were concerned 

that the proposed rule on CEs does not 

comply with NEPA requirements and 

would violate recent court rulings. 

Response: The requirements for 

establishing agency procedures for 

implementing NEPA—such as the 

procedures set forth in this rule, and 

including CEs—are set forth in CEQ’s 

regulations at 40 CFR 1505.1 and 

1507.3. These provisions require 

agencies to consult with CEQ while 

developing procedures and to publish 

the procedures in the Federal Register 

for public comment prior to adoption. 

The CEQ regulations do not direct 

agencies to prepare a NEPA analysis or 

document before establishing agency 

NEPA procedures. This means that 

agencies are not required to prepare a 

NEPA analysis to establish their NEPA 

procedures; however, agencies must 

have a basis for determining that actions 

covered by proposed CEs do not have 

individual or cumulative impacts. 

Agency NEPA procedures assist 

agencies in fulfilling agency 

responsibilities under NEPA and are 

not, themselves, actions or programs 

that may have effects on the human 

environment. Moreover, agency NEPA 

procedures do not dictate what level of 

NEPA analysis is required for a 

particular proposed action or program. 

Thus, such procedures are not federal 

actions subject to the requirements of 

NEPA. The determination that 

establishing agency NEPA procedures 

does not itself require NEPA analysis 

and documentation has been upheld in 

Heartwood, Inc. v. U.S. Forest Service, 

73 F. Supp. 2d 962, 972–73 (S.D. Ill. 

1999), aff’d 230 F.3d 947, 954–55 (7th 

Cir. 2000). 

By including the Department’s CEs in 

this rule, the Department is merely 

moving established categories and 

language addressing extraordinary 

circumstances from their current 

location in the DM to the new 43 CFR 

Part 46. When established as part of the 

DM, these categories and extraordinary 

circumstances language were approved 

by CEQ and subject to public review 

and comment, in accordance with 40 

CFR 1507.3. The substantiation for those 

actions included the bases for 

determining that the actions covered by 

the CE do not ‘‘individually or 

cumulatively have a significant effect on 

the human environment.’’(40 CFR 

1508.4). This final rule does not add any 

new categories or—apart from one 

clarifying addition (explained below)— 

alter existing language regarding 

extraordinary circumstances. Therefore, 

the Department does not believe that 

this final rule fails to comply with 

NEPA or the CEQ regulations and 

believes that the existing procedural 


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framework established by the statute, 

CEQ regulations, and existing 

Department procedures is maintained. 

In Sierra Club v. Bosworth, 2007 U.S. 

App. LEXIS 28013 (9th Cir., Dec. 5, 

2007), the case cited by commenters, the 

Ninth Circuit determined, in part, that 

the U.S. Forest Service’s establishment 

of a CE constituted establishment of a 

program for which a cumulative effects 

analysis was required. Because this 

litigation involves a CE that is analogous 

to a CE used by the Department, the 

Department has determined that the 

category in question will remain in the 

final rule, with the understanding and 

written direction that it will not be used 

by the individual bureaus in areas 

within the jurisdiction of the Ninth 

Circuit. If, at a later date, the 

Department determines changes must be 

made to sections 210 and 215 of part 46, 

those changes will similarly undergo 

CEQ review as well as public review 

and comment. Further, in such event, 

the Department will comply with all 

applicable requirements for rulemaking. 

Comment: Some groups also 

suggested that this section of the 

proposed rule is ‘‘extremely vague and 

broad.’’ These commenters 

recommended removal of, or expanded 

limits on, the portions of the CE that 

authorize mechanical treatment to 

reduce fuels, as well as those portions 

which authorize post-fire rehabilitation. 

Commenters maintain that the 

allowance of these authorizations would 

be ‘‘environmentally disastrous.’’ 

Furthermore, these groups 

recommended implementation of strict 

measures to ensure that ‘‘temporary 

roads’’ remain temporary. 

Response: As explained above, by 

including the Department’s CEs in this 

rule, the Department is merely moving 

established categories and language 

addressing extraordinary circumstances 

from their current location in the DM to 

the new 43 CFR Part 46. When 

established as part of the DM, these 

categories and extraordinary 

circumstances language were approved 

by CEQ and subject to public review 

and comment, in accordance with 40 

CFR 1507.3 (for example, see 68 Federal 

Register 33813 published on June 5, 

2003). This final rule does not add any 

new categories or alter existing language 

regarding extraordinary circumstances, 

with the exceptions noted above with 

respect to the language of the CEs, 

including the correction of the 

typographical error in paragraph 

46.210(i) and the clarification in section 

46.215 noted below. 

Comment: Some commenters 

suggested modification of the proposed 

rule in such a way that the collection of 

small samples for mineral assessments 

be included within educational CEs. 

Other commenters recommended the 

proposed rule be modified to 

incorporate CEs for the Fish and 

Wildlife Service. Another commenter 

recommended that the Department 

adopt its own CE relating to the 

installation, maintenance, or restoration 

of artificial water developments used in 

the conservation of wildlife. In addition, 

this commenter suggests clearly 

defining small water control structures 

in the proposed rule. 

Response: See responses above. 

Section 46.215 Categorical 

Exclusions: Extraordinary 

circumstances. This section contains a 

listing of the Department’s CEs: 

Extraordinary Circumstances (currently 

516 DM Chapter 2, Appendix B–2). This 

section includes the same number of 

CEs: Extraordinary Circumstances as 

were in the DM, and the wording in the 

CEs: Extraordinary Circumstances is 

essentially unchanged. Similar to the 

listing of CEs, each of the Extraordinary 

Circumstances was published for public 

comment prior to inclusion in the DM. 

The CEs: Extraordinary Circumstances 

are in paragraphs (a) through (l). In the 

proposed rule, and in this final rule, the 

only change from the way the 

Extraordinary Circumstances appeared 

in the DM is the addition of the 

following sentence to section 46.215: 

‘‘Applicability of extraordinary 

circumstances to categorical exclusions 

is determined by the Responsible 

Official.’’ This is not a substantive 

change to the extraordinary 

circumstances themselves, but reflects 

the authority and the responsibility of 

the RO. Similarly, the phrase ‘‘as 

determined by the bureau’’ (which 

appears in the DM) was inadvertently 

left out of the proposed rule at 

paragraph 46.215(g); the final rule 

therefore reads: ‘‘Have significant 

impacts on properties listed, or eligible 

for listing, on the National Register of 

Historic Places as determined by the 

bureau.’’ While the DM provision (see 

69 FR 19866, Mar. 8, 2004) that is being 

replaced by this rule read ‘‘as 

determined by either the bureau or 

office,’’ only ‘‘bureau’’ is used here, to 

be consistent with the definition of 

‘‘bureau’’ in the final rule, at section 

46.30. 

Comment: Another commenter 

believed that the Executive Order on 

Facilitation of Hunting Heritage and 

Wildlife Conservation should form the 

basis of extraordinary circumstances 

and should be added to the proposed 

rule. 

Response: As noted above, no new 

CEs or extraordinary circumstances are 

being added at this time. That being 

said, the Department is aware of the 

referenced Executive Order and will 

incorporate in Departmental directives, 

as appropriate, any plan developed 

under the Executive Order for the 

management of resources under the 

Department’s jurisdiction. 

Comment: Some commenters stated 

that lands found to have ‘‘wilderness 

characteristics,’’ such as citizen 

proposed wilderness areas, do not 

constitute extraordinary circumstances. 

Many commenters suggested that the 

Department revise this section of the 

proposed rule to clarify that the term 

‘‘highly controversial environmental 

effects’’ does not include instances 

where there is merely a public 

controversy. 

Response: The Departmental list of 

extraordinary circumstances specifies 

wilderness areas or wilderness study 

areas but not wilderness characteristics 

or citizen proposed wilderness areas. As 

noted above, no new extraordinary 

circumstances are being added as part of 

this initiative. That being said, just as 

with any other resource value, there 

may be circumstances where the issue 

of effects on areas with wilderness 

characteristics may be captured under 

the existing extraordinary 

circumstances. 

Comment: One commenter requested, 

‘‘where an Interior agency proposes to 

categorically exclude a decision from 

review under NEPA, that the agency 

include the proposed decision on NEPA 

registers available on the agency’s Web 

site.’’ This commenter also requested 

eliminating the adoption of regulations 

and policies from the list of 

Departmental CEs, as found in 

paragraph (i). 

Response: The Department declines to 

adopt the commenter’s recommendation 

regarding making the proposed 

decisions supported by CEs available on 

bureau Web site(s). From a practical 

standpoint, many thousands of 

proposed actions annually are 

categorically excluded. To list each use 

of a CE on a NEPA register or bureaus’ 

Web sites would prove overly 

burdensome. The Department declines 

to adopt the commenter’s 

recommendation regarding eliminating 

the adoption of regulations and policies 

from the list of Departmental CEs, as 

found in paragraph (i). As explained 

above, the Department is not changing 

the language of the CEs or the 

extraordinary circumstances in the final 

rule, but is merely moving them from 

the DM to regulations. 

Comment: Some groups stated that 

the proposed rule severely narrows the 

definition of extraordinary 


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circumstances. These groups also 

believed the proposed rule allows the 

Department to illegally manipulate 

NEPA’s threshold question. 

Response: This final rule simply 

moves established categories and 

language on extraordinary 

circumstances from the Department’s 

NEPA procedures previously located in 

516 DM 2, Appendix 1 and 2; no change 

was proposed or is made to the 

extraordinary circumstances themselves 

in the final rule. As noted above, these 

categories and requirements were 

established following public review and 

comment, in consultation with CEQ and 

with CEQ’s concurrence, pursuant to 40 

CFR 1507.3. The final rule does not add 

any new categories, nor does it 

substantively alter existing requirements 

regarding review for extraordinary 

circumstances. The Department notes 

that contrary to the commenter’s 

assertion that the threshold question 

with respect to the extraordinary 

circumstances review is altered, the 

prefatory statement to the list of 

extraordinary circumstances was, and 

remains ‘‘Extraordinary circumstances 

(see § 46.205(c)) exist for individual 

actions within CXs that may meet any 

of the criteria listed in paragraphs (a) 

through (l) of this section.’’ (Emphasis 

added.) 

Section 46.220 How to designate 

lead agencies. This section provides 

specific detail regarding the selection of 

lead agencies. 

Comment: Some commenters stated 

that the proposed rule needs to address 

how a lead agency will be designated 

when more than one federal agency is 

involved. These commenters 

recommended that the Department 

consider requiring the consent of an 

agency before it can be named the lead 

agency. In addition, commenters 

suggested that the Department may want 

to recognize in the proposed rule that 

the RO would need to comply with any 

applicable statutory or regulatory 

requirements in the designation of the 

lead agency. 

Response: CEQ regulations at 40 CFR 

1501.5 establish guidelines on the 

designation of a lead agency, including 

resolution of the question of 

designation, in the event of dispute. The 

RO complies with this rule in the 

designation of a lead agency. 

Section 46.225 How to select 

cooperating agencies. This section 

establishes procedures for selecting 

cooperating agencies and determining 

the roles of non-Federal agencies, such 

as tribal governments, and the further 

identification of eligible governmental 

entities for cooperating agency 

relationships. Criteria for identifying, 

and procedures for defining, the roles of 

cooperating agencies and the specific 

requirements to be carried out by 

cooperators in the NEPA process are set 

forth in this section. 

Comment: Several commenters 

supported consensus-based 

management for resolving competing 

government interests. 

Response: The Department 

appreciates the comments. 

Comment: Some commenters 

suggested that lead NEPA agencies must 

collect the ‘‘best available information,’’ 

with the decision-making process based 

on this information. These commenters 

also proposed modification of the 

proposed rule to ‘‘encourage’’ the use of 

this section in preparing an EA. 

Response: The Department collects 

the high quality information, and that 

information supports the NEPA analysis 

which contributes to the decisionmaking process. This is consistent with 

CEQ requirements. The Department 

declines to make the recommended 

change to paragraph 46.225(e); ROs are 

given the latitude to exercise discretion 

in this regard. 

Comment: Many commenters 

supported the use of memoranda of 

understanding (MOU) and 

recommended revision of the proposed 

rule to include clarification on 

cooperating agency status and 

limitations, as well as a schedule for the 

environmental document. 

Response: Paragraph 46.225(d) 

provides for the use of memoranda of 

understanding (MOU) between the lead 

and cooperating agencies. The MOU 

provides a framework for cooperating 

agencies to agree to their respective 

roles, responsibilities and limitations, 

including, as appropriate, target 

schedules. The requirement with 

respect to memoranda of understanding 

in paragraph 46.225(e) may apply to 

EAs also. 

Section 46.230 Role of cooperating 

agencies in the NEPA process. This 

section provides specific detail 

regarding the responsibilities of 

cooperating agencies. 

No comments were received for this 

section. 

Section 46.235 NEPA scoping 

process. This section discusses the use 

of NEPA’s scoping requirements to 

engage the public in collaboration and 

consultation for the purpose of 

identifying concerns, potential impacts, 

relevant effects of past actions, possible 

alternatives, and interdisciplinary 

considerations. The regulatory language 

encourages the use of communication 

methods (such as using the Internet for 

the publications of status of NEPA 

documents on bulletin boards) for a 

more efficient and proactive approach to 

scoping. 

Comment: Some organizations stated 

that the Department has offered no 

explanation for the lack of required 

scoping when preparing an EA or 

applying a CE, as compared with 

scoping for an EIS. These organizations 

maintained that this lack of scoping 

contradicts the proposed guidance 

found in paragraph 46.200(b). These 

commenters stated that federal agencies 

are required to ensure proper public 

involvement when implementing NEPA 

and suggested public scoping assists in 

making an informed decision. 

Response: Although scoping is not 

required for the preparation of an EA 

(CEQ regulations at 40 CFR 1501.7 

specifically reference the preparation of 

an EIS), the Department encourages the 

use of scoping where appropriate as it 

does represent a form of public 

involvement, which is a requirement of 

EAs. The Department has added 

language to clarify the relationship 

between this section and section 46.305. 

In addition, in contrast to the rule as 

proposed, the Department has also 

clarified that while public notification 

and public involvement are required to 

the extent practicable in the preparation 

of an EA, the RO has the discretion to 

determine the manner of this public 

notification and public involvement. 

See paragraph 46.305(a). Scoping is not 

a step necessary to document a CE. The 

Department recognizes and 

acknowledges the importance of scoping 

as a form of public involvement and 

participation in the NEPA process, 

wherever it is appropriate, in that it can 

serve the purpose of informed decision 

making. 

Comment: One commenter 

recommended clarification of 

‘‘interdisciplinary considerations’’ in 

the proposed rule. 

Response: This rule ensures that the 

use of the natural, social, and the 

environmental sciences as required 

under section 102(2)(A) of NEPA. As 

recommended by the commenter, we 

have clarified this provision by 

replacing the phrase ‘‘interdisciplinary 

considerations’’ in paragraph 46.235(a) 

with the phrase ‘‘interdisciplinary 

approach’’ as provided in 40 CFR 

1502.6. 

Section 46.240 Establishing time 

limits for the NEPA process. The section 

requires bureaus to establish time limits 

to make the NEPA process more 

efficient. 

Comment: One commenter pointed 

out that the proposed rule does not 

explain why time limits should be 

established. This commenter 

recommended the addition of specific 


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guidance and direction to the proposed 

rule so bureau staff can process NEPA 

documents with minimal delay. 

Response: CEQ regulations at 40 CFR 

1501.8 encourage federal agencies to set 

time limits appropriate to individual 

actions. This rule requires individual 

bureaus to establish time limits, as 

appropriate, to expedite the NEPA 

process and to ensure efficiency, 

especially when project completion may 

be time sensitive or when statutory or 

regulatory timeframes may be 

applicable. The Department believes 

individual bureaus are best situated to 

establish time frames on a case-by-case 

basis, and does not deem it necessary to 

implement specific additional guidance 

to ensure that delays are not 

encountered in the NEPA process. 

Comment: Another commenter stated 

that the proposed rule appears to be 

focused solely on internal 

administrative factors and fails to 

acknowledge that complex projects and 

potential impacts could seriously affect 

timelines. Commenters also suggested 

that the availability of the public to 

participate in the process needs to be 

considered and accounted for when 

setting time limits. Multiple 

commenters supported establishing time 

limits for the NEPA process on a caseby-case basis, as long as the time limits 

do not impose a schedule that cannot 

facilitate the project proponent’s goals 

and objectives for the proposed action. 

Response: The Department does not 

have a prescribed time limit for each 

proposed step in the NEPA process. In 

each case, time limits are set based on 

a consideration of factors such as 

funding, staff availability, public needs, 

and the complexity of the proposed 

action. The Department realizes that the 

proponent’s goals and objectives are a 

consideration in scheduling the time 

considerations, as well as the factors 

mentioned above. 

Comment: Several commenters 

requested an addition to the proposed 

rule ‘‘that cooperating agencies 

represent that they have sufficient 

qualified staff and necessary resources 

to participate as a cooperating agency on 

the project and meet project deadlines.’’ 

Several commenters also recommended 

several additions to the proposed rule to 

strengthen time limit requirements. 

Response: The MOU as required 

under paragraph 46.225(d) is a 

mechanism for establishing that such 

cooperating agencies represent that they 

have sufficient qualified staff to 

participate on the project and meet 

project deadlines. The Department does 

not believe any change to the final rule 

is necessary. 

Subpart D: Environmental Assessments 

In the conversion from 516 DM 

Chapter 3 to 43 Part 46 Subpart D, we 

have written this rule to incorporate 

procedural changes, expand upon 

existing procedures, give greater 

discretion and responsibilities to 

bureaus, and provide clarity in the EA 

process. 

Section 46.300 Purpose of an EA 

and when it must be prepared. This 

section clarifies that the action being 

analyzed is a ‘‘proposed’’ action. It 

expands upon the purpose and clarifies 

when to prepare an EA. 

Comment: One group recommended 

that the Department add a provision to 

assure that all decisions made by the RO 

after preparing an EA or an EA and 

FONSI are in writing and include the 

Official’s reasoning behind that 

decision. 

Response: This rule addresses the 

Department’s NEPA procedures and not 

the Department’s decision-making 

authorities. The Department has 

decided that documentation 

requirements for decisions on proposed 

actions made on the basis of preparation 

of EAs and FONSIs are outside the 

scope of this rule. That is, bureau 

decision making itself is governed by 

Department and bureau-specific 

authorities. Section 46.325 describes the 

culmination of the EA process rather 

than documentation of a final decision 

on the proposed action and has been 

edited to ensure this point is clearly 

made. 

Comment: Another group stated that 

wording in paragraph (a), in the context 

of the Bureau of Indian Affairs, may be 

misleading since many EAs are 

prepared by a tribal government agency. 

These commenters suggested that 

paragraph (a) be revised as follows: ‘‘A 

bureau must ensure that an EA is 

prepared for all proposed Federal 

actions * * *’’ 

Response: The Department concurs 

and has revised the language at 

paragraph 46.300(a) to reflect the 

suggested change. 

Section 46.305 Public involvement 

in the EA process. This section 

incorporates procedural changes and 

differentiates the requirements for 

public involvement in the EA and EIS 

processes. This section has been revised 

from the proposed to require bureaus, to 

the extent practicable, to provide for 

public notification and public 

involvement when an environmental 

assessment is being prepared. This 

represents a change from the rule as 

proposed, which had included a 

requirement that ‘‘The bureau must 

provide for public notification when an 

EA is being prepared.’’ The Department 

has made this change in order to be 

more consistent with CEQ regulations, 

which do not require bureaus to provide 

such notice in each and every instance, 

but only require that Federal agencies 

‘‘shall to the fullest extent possible 

encourage and facilitate public 

involvement in decisions which affect 

the quality of the human environment.’’ 

40 CFR 1500.2(d). With respect to EAs, 

CEQ regulations require that agencies 

provide notice of the availability of such 

environmental documents, but are 

otherwise quite general in approach to 

public involvement in EAs. See 40 CFR 

1501.4(b) and 1506.6. As the 

Department’s bureaus prepare 

thousands of EAs each year—many 

times for routine matters for which there 

are not categorical exclusions, but for 

which there is no interest on the part of 

the public—a categorical public 

notification requirement would prove a 

fairly substantial burden. Therefore, 

discretion is left to the RO in each case 

to determine how best to involve the 

public in a decision that affects the 

quality of the human environment. 

This section has also been expanded 

to give bureaus the discretion to provide 

cooperating agency status for EAs. It 

specifies that the publication of a draft 

EA for public comment is one method 

available for public involvement, but it 

is not required. 

Comment: Some commenters 

supported this section of the proposed 

rule as it is currently written. These 

commenters believed that the proposed 

rule is consistent with CEQ regulations, 

which only require public involvement 

in EAs to the extent practicable. 

Response: The Department 

appreciates the comments and has 

clarified that because notification is a 

means of public involvement, it too is 

subject to the qualifier ‘‘practicable’’ 

and has revised the final rule as 

described above. 

Comment: This section of the 

proposed rule directs bureaus to 

consider comments that are ‘‘timely’’ 

received. One commenter maintained 

that the proposed rule did not 

adequately define ‘‘timely.’’ This 

commenter also recommended stating in 

the rule ‘‘that if no comments are 

received during this 30-day comment 

period, the decision is made using the 

content of the draft document.’’ 

Response: Publication of a ‘‘draft’’ EA 

is not required. The RO has the 

discretion whether to invite comments 

on an EA. If an RO requests comments, 

there will be a stated time limit to the 

comment period. Comments not 

received within this stated time limit 

may be deemed untimely by the RO. It 


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is left to the discretion of the RO to take 

action when comments have been 

received after the end of the comment 

period. 

Comment: Several commenters also 

supported the proposed provision 

which would allow cooperating 

agencies to participate in the 

development of EAs. They 

recommended rewording of the 

proposed rule to ‘‘encourage’’ 

cooperating agency participation, not 

merely ‘‘permit’’ this participation. 

Response: The rule has used ‘‘may 

allow’’ rather than the term 

‘‘encourage,’’ because cooperating 

agency involvement in an EA is a matter 

of discretion for the RO; no change is 

made to the final rule. 

Comment: Many commenters 

supported publication of draft EAs and 

recommended modification of the 

proposed rule to support publication of 

draft EAs. These commenters believed 

that this section of the proposed rule is 

in violation of CEQ direction and that 

public review of environmental 

documents has the potential to identify 

information about impacts or resource 

uses that would be otherwise unknown. 

Response: The manner of public 

involvement, including the publication 

of a draft EA, is a matter of discretion 

for the RO; this provision is consistent 

with 40 CFR 1501.3. 

Comment: Several commenters 

expressed disappointment that ‘‘the 

language in the Department’s NEPA 

proposed rule focuses on how not to 

provide public involvement 

opportunities in section 46.305.’’ This 

group maintained that it is essential that 

the public effectively be involved in the 

NEPA process, that public participation 

is a fundamental component of NEPA, 

and that public involvement extends to 

all ‘‘environmental documents,’’ 

including EAs. These commenters urged 

the Department to include positive 

language in the proposed rule to involve 

the public in the preparation of an EA, 

including requiring publishing of draft 

EAs for public comment, and 

establishing clear and specific 

guidelines for public involvement in the 

EA process. 

Response: The Department strongly 

encourages public involvement and 

participation in the NEPA process at all 

stages. However, consistent with CEQ 

regulations, the Department’s final rule 

distinguishes between ‘‘public 

involvement’’ and ‘‘public comment.’’ 

With respect to EISs, CEQ’s regulations 

specify that the public must have the 

opportunity to comment on a draft EIS. 

By contrast, the CEQ regulations do not 

specify that public involvement should 

take any particular form for EAs, as 

recognized by every court that has 

decided the issue. Therefore, the 

Department’s final rule clarifies that the 

RO has the discretion to determine how 

public involvement in the preparation 

of an EA is to occur, depending on the 

particular circumstances surrounding 

the proposed action. Bureaus engage in 

a wide variety of routine actions, for 

which EAs are prepared (e.g., approval 

of replacement of culverts, erection of 

fences, etc.). Therefore, it is neither 

necessary nor practical for public 

comment to be required for each of 

these EAs. Public involvement can take 

a variety of forms, ranging from 

notification on bureau or field office 

Web sites to the holding of public 

meetings. Some of the bureaus provide 

more specific direction on facilitating 

public involvement (see 516 DM 

Chapters 8–15 and bureau handbooks). 

Comment: Another commenter 

recommends that the proposed rule 

should ensure that communities and 

tribes potentially impacted by the 

proposed action have adequate 

opportunities to participate in the 

development of an EA. 

Response: See response above 

regarding the CEQ requirement 

respecting public involvement. The 

circumstances surrounding each 

proposed action may interest a variety 

of members of the public, including, but 

not limited to, communities and tribes 

potentially impacted by the proposed 

action. The RO has the discretion to 

implement public notification and 

public involvement measures 

appropriate to the proposed action, and 

affected communities. In addition, as 

noted above, and independent of its 

responsibilities under NEPA, the United 

States has a government-to-government 

relationship with federally-recognized 

tribes. In accordance with this 

responsibility, the Department 

specifically provides for consultation, 

coordination and cooperation within the 

framework of government-togovernment consultation. 

Section 46.310 Contents of an EA. 

This section establishes new language 

outlining what information must be 

included in an EA. It describes the 

requirements for alternatives, if any, and 

provides for incorporating adaptive 

management strategies in alternatives. 

Sections on tiered analysis, from 516 

DM Chapter 3, are found in subpart B 

of this rule, since this information 

pertains to both EISs and EAs. 

Comment: Several commenters 

supported this section of the proposed 

rule as it is currently drafted. These 

commenters maintained that CEQ 

regulations only require that an EA 

contain a brief discussion of the 

environmental impacts of the proposed 

action and alternatives. 

Response: The Department 

appreciates the comments. 

Comment: Other commenters stated 

that this section of the proposed rule 

should be removed because it conflicts 

with NEPA, CEQ regulations, and 

existing case law. 

Response: The Department disagrees. 

This section fully complies with NEPA 

and CEQ regulations, as well as CEQ 

guidance. On September 8, 2005, the 

CEQ issued EA guidance to Federal 

agencies entitled ‘‘Emergency Actions 

and NEPA’’ that explained language at 

section 102(2)(E) of NEPA ‘‘unresolved 

conflicts concerning alternative uses of 

available resources’’ (42 U.S.C. 

4332(2)(E)). The CEQ guidance states: 

‘‘When there is consensus about the 

proposed action based on input from 

interested parties, you can consider the 

proposed action and proceed without 

consideration of additional alternatives. 

Otherwise, you need to develop 

reasonable alternatives to meet project 

needs’’ (Attachment 2 ‘‘Preparing 

Focused, Concise and Timely 

Environmental Assessments’’, http:// 

ceq.eh.doe.gov/nepa/regs/Preparing

_Focused_Concise_and_

Timely_EAs.pdf). 

Comment: Several commenters stated 

that the proposed rule calls for a 

superficial analysis of impacts, which 

creates the potential for inadequate 

research. These commenters were 

concerned that this superficial analysis 

will not provide an adequate analysis of 

impacts, will only serve to exacerbate 

conflict and will result in poor decisionmaking and possible litigation. 

Response: The Department disagrees. 

CEQ regulations describe EAs as 

‘‘concise’’ documents that ‘‘briefly’’ 

provide information sufficient to 

determine whether preparation of an 

EIS is required. CEQ has issued 

guidance consistent with this idea (see 

September 8, 2005 CEQ guidance 

referenced above). The Department does 

not believe that conciseness necessarily 

leads to a superficial analysis. 

Comment: These commenters 

therefore suggested that ‘‘consensus’’ be 

changed to ‘‘unanimity’’ to assure that 

there is no confusion about the limited 

circumstances in which paragraph 

46.310(b) applies. 

Response: ‘‘Unanimity’’ is not 

required; therefore, the Department 

declines to make the suggested 

alteration to the final rule. 

Comment: One commenter suggested 

that the cumulative effects of the 

proposed action and other previous 

actions should be included in the list of 

things that must be discussed in an EA. 


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Response: This rule does not attempt 

to alter the requirements of the CEQ 

regulations. Rather, paragraph 

46.310(a)(3) of the Department’s final 

rule requires that EAs include brief 

discussions of the environmental 

impacts of the proposed action. 

Environmental impacts include direct, 

indirect and cumulative impacts (40 

CFR 1508.7 and 1508.8). A separate 

listing of the requirement to include 

discussion of any cumulative impacts is 

not necessary. 

Section 46.315 How to format an 

EA. This section provides clarification 

on the EA format. 

No comments were received on this 

provision. 

Section 46.320 Adopting EAs 

prepared by another agency, entity, or 

person. In this section, the term ‘‘and 

other program requirements’’ has been 

added to the compliance stipulations. It 

also expands the requirements of the RO 

in adopting another agency’s EA. 

Comment: One commenter suggested 

that a new section be added to the 

proposed rule which includes the 

requirement that the RO ‘‘consults with 

other agencies that have regulatory 

authority over the project’’ when 

adopting an EA prepared by another 

agency. This commenter maintained 

this will help ensure that other affected 

agencies agree with the adoption. 

Another organization suggested that this 

section of the proposed rule should state 

that an Indian tribe may be the 

applicant. 

Response: The determination to adopt 

another agency’s EA is left solely to the 

discretion of the RO. However, the 

Department expects that the RO will 

consult with any other agency that has 

regulatory authority over the project that 

is the subject of a bureau’s proposed 

action and environmental analysis. In 

fact, this final rule provides at section 

46.155: ‘‘The Responsible Official must 

whenever possible consult, coordinate, 

and cooperate with relevant State, local, 

and tribal governments and other 

bureaus and Federal agencies 

concerning the environmental effects of 

bureau plans, programs, and activities 

within the jurisdictions or related to the 

interests of these agencies.’’ This 

provision applies to proposed actions 

supported by both EAs and EISs. As 

such no change has been made to 

section 46.320. 

The Department recognizes generally 

that an Indian tribe may be an applicant, 

as well as a State or other unit of 

government; paragraph 46.300(a) has 

been modified to read: ‘‘A bureau must 

ensure that an EA is prepared for all 

proposed Federal actions’’ in order to 

reflect that it may be the applicant who 

is preparing the EA, especially when a 

tribe is the applicant. No other change 

in this respect has been made to the 

final rule. 

Section 46.325 Conclusion of the EA 

process. Documentation requirements 

for decisions made on the basis of EAs 

and FONSIs are beyond the scope of this 

rule. After a bureau has completed an 

EA for a proposed action, the bureau 

will make a finding of no significant 

impact, or will determine that it is 

necessary to prepare an EIS, in which 

case, the bureau will publish a Notice of 

Intent in the Federal Register or will 

take no further action on the proposal. 

Comment: Several commenters 

‘‘suggested that the requirement that a 

decision be documented also include a 

requirement that the document be made 

public.’’ 

Response: Bureau decision documents 

are public documents. While some 

bureaus routinely publish these 

documents (for instance on bureau or 

field office Web sites), the Department 

is not including a requirement that all 

decision documents be published. 

Decision documents are available from 

bureaus upon request. 

Subpart E: Environmental Impact 

Statements 

This subpart takes the place of 516 

DM Chapter 4, with following 

exceptions. 

The language from 516 DM Chapter 4 

that simply reiterates the CEQ 

regulations is not included in subpart E 

of this rule. Those DM sections are: 

statutory requirements, cover sheet, 

summary, purpose and need, appendix, 

methodology and scientific accuracy, 

proposals for legislation, and time 

periods. 

Sections on tiering, incorporation of 

referenced documents into NEPA 

analysis, incomplete or unavailable 

information, adaptive management, and 

contractor prepared environmental 

documents, from 516 DM Chapter 4 are 

found in subpart B of this rule since that 

information pertains to EISs and EAs. 

The phrase ‘‘environmentally 

preferable alternative’’ is found in the 

definitions, subpart A. This phrase 

expands on the definition that currently 

exists in 516 DM 4.10(A)(5). 

This rule also incorporates procedural 

changes, clarifies the extent of 

discretion and responsibility that may 

be exercised by bureaus and provides 

clarity in the EIS process. 

Section 46.400 Timing of EIS 

development. This section describes 

when an EIS must be prepared. 

Comment: One commenter 

recommended revising the definition of 

‘‘environment’’ within the proposed 

rule to avoid disputes. 

Response: Neither the Department’s 

proposed nor final rule includes a 

definition of ‘‘environment.’’ Neither 

NEPA nor the CEQ regulations define 

this term; however, the CEQ regulations 

do define ‘‘human environment,’’ and 

the definitions in the CEQ regulations 

apply (see sections 46.20 and 46.30). 

The Department does not believe that a 

definition is required. 

Comment: One commenter stated that 

it is important to note that the RO 

should not have the authority to 

mandate whether an applicant must pay 

for environmental analyses. The 

commenter recommended that the 

applicant should be given the 

opportunity to voluntarily fund the 

NEPA analysis. Others recommended 

that any reference to who pays for the 

analysis be deleted from the proposed 

rule. 

Response: The provision in the 

Department’s final rule specifies only 

that the RO ‘‘must inform applicants as 

soon as practicable of any responsibility 

they will bear for funding 

environmental analyses associated with 

their proposal.’’ This provision refers 

specifically to the responsibility of the 

RO to inform the applicant of any such 

requirements in each instance. (As 

noted above in the introduction to 

section 46.200, this provision has been 

moved from section 46.400 to section 

46.200 because it applies to EAs as well, 

and the application to EAs was 

inadvertently left out of the proposed 

rule.) The question of whether an RO 

may require an applicant to pay for 

NEPA analysis is outside the scope of 

this rule because programs and bureaus 

have different payment requirements, 

for example, under their cost recovery 

authority, if applicable. 

Section 46.405 Remaining within 

page limits. This section encourages 

bureaus to keep EISs within the page 

limits described in the CEQ regulations 

using incorporation of referenced 

documents into NEPA analysis and 

tiering. 

No comments were received on this 

provision. 

Section 46.415 EIS Content, 

Alternatives, Circulation and Filing 

Requirements. This section provides 

direction for the development of 

alternatives, establishes language on the 

documentation of environmental effects 

with a focus on NEPA statutory 

requirements, and provides direction for 

circulating and filing the draft and final 

EIS or any supplement(s) thereto. The 

Department changed the title of this 

section and added a sentence to address 


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Federal Advisory Committee Act 

(FACA) implications. 

Comment: Some commenters 

supported this portion of the proposed 

rule as it is written. 

Response: The Department 

appreciates the comments. 

Comment: One group stated that the 

term ‘‘interested parties’’ is too broadly 

defined, resulting in significant delays 

in agency decision-making. 

Consequently, standing would be given 

to parties that otherwise would lack 

standing to pursue future legal action. 

Response: The Department agrees that 

the meaning of ‘‘interested parties’’ is 

potentially ambiguous and has revised 

this term to match the language used in 

the CEQ regulations. Please see the final 

rule at section 46.110, as well as the 

responses to comments on that section. 

Comment: Some commenters believed 

that the cumulative effects of the 

proposed action and other previous 

actions must also be disclosed in an EIS. 

Consequently, these commenters 

recommended adding cumulative effects 

to the list of terms that must be 

disclosed in the contents of an EIS. 

Response: Paragraph 46.415(a)(3) of 

the Department’s final rule requires that 

an EIS disclose ‘‘the environmental 

impact of the proposed action.’’ 

Environmental impact includes direct, 

indirect and cumulative impacts (40 

CFR 1508.7 and 1508.8). The 

Department does not believe that a 

separate listing of the requirement to 

include discussion of cumulative 

impacts is necessary. 

Comment: Several commenters 

commented on paragraph (c), which 

provides ‘‘the RO shall make those 

preliminary draft and final EISs 

available to those interested and 

affected persons and agencies for 

comment.’’ The main concern discussed 

by commenters is that the word ‘‘shall’’ 

implies that the RO will be required to 

circulate preliminary drafts of EISs. 

These commenters recommended that 

the proposed rule should allow public 

circulation of preliminary EISs when 

the RO determines that such circulation 

would be beneficial, but public 

disclosure should not be required. Other 

commenters stated it is inappropriate 

for agencies to share preliminary EISs 

that represent preliminary agency 

thoughts. They were concerned that 

public release of a preliminary 

document would hinder internal 

discussion regarding innovative 

management options available for 

consideration and analysis. 

Response: The Department has 

elected not to include a ‘‘preliminary 

environmental impact statement’’ in the 

final rule. Please see the response above 

to comments on section 46.30. 

Comment: One group recommended 

clarification of the proposed rule by 

stating that the human environment 

changes over time, regardless of the 

action being assessed under NEPA. 

They recommended this clarification 

should ‘‘explicitly exclude the idea that 

nothing changes over time, so the no 

action alternative means no change.’’ 

Response: The Department 

acknowledges that some clarification 

was needed and added language to the 

final rule. Natural systems evolve over 

time. The ‘‘no action’’ alternative is not 

the alternative that results in ‘‘no 

change’’ to the environment; rather it 

represents the state of the environment 

without the proposed action or any of 

the alternatives. When the proposed 

action involves a proposed change in 

management then, under the no action 

alternative, what does not change is 

management direction or level of 

intensity. 

Comment: Another commenter stated 

‘‘it is not clear from the proposed rule 

how or why ‘‘incremental changes’’ will 

be considered as alternatives’’ and asked 

for additional detail regarding the 

‘‘incremental process’’ and how it 

interacts with the alternative discussion. 

Response: The Department 

appreciates this comment. The intent of 

this provision is that modifications to 

alternatives developed through a 

collaborative process, may, themselves, 

be considered alternatives to a proposed 

action. To avoid confusion, the final 

rule no longer uses the term 

‘‘incremental’’ when dealing with 

alternatives. 

Comment: Many commenters fully 

supported and encouraged analysis of 

the no action alternative. Several 

recommended clarification in the 

proposed rule on how the tenets of 

adaptive management will work with 

the requirements for clearly articulating 

and pre-specifying the adjustments and 

the respective environmental effects that 

might later occur. Another commenter 

encouraged the Department to specify in 

the proposed rule that alternatives 

considered throughout the NEPA 

process must be capable of achieving 

the project goals. 

Response: The Department believes 

that no further clarification is necessary. 

The intent of the provision respecting 

adaptive management is to clarify that 

the use of an adaptive management 

approach does not preclude the 

necessity of complying with NEPA. 

Each proposed action, including 

possible changes in management made 

as a result of an adaptive management 

approach may be analyzed at the outset 

of the process or the changes in 

management made may be analyzed 

when implemented. 

Comment: Several commenters 

strongly opposed the idea that the RO, 

with or without input from any 

interested parties, would be permitted 

to make modifications to a proponent’s 

proposed action. These commenters 

recommend eliminating this language in 

its entirety from the proposed rule. 

Response: Bureaus would analyze 

reasonable alternatives that would meet 

the purpose and need for action. In 

determining the range of reasonable 

alternatives, the range may in some 

cases be limited by the proponent’s 

proposed action, but the RO must still 

evaluate reasonable alternatives within 

that range. As such the RO may include 

additional alternatives for analysis, 

including those which represent 

different modifications of the proposed 

action. No change to the provision has 

been made. 

Comment: Some commenters 

requested clarification on the public 

comment opportunity that follows the 

publication of a final EIS. They 

maintained the rule should explain that 

the public can submit comments on a 

final EIS prior to an agency’s final 

decision. 

Response: CEQ regulations at 40 CFR 

1506.10(b)(2) require a 30-day waiting 

period between publication of the final 

EIS and signing of a ROD. CEQ guidance 

states: ‘‘During that period, in addition 

to the agency’s own internal final 

review, the public and other agencies 

can comment on the final EIS prior to 

the agency’s final action on the 

proposal. CEQ’s ‘‘Forty Most Asked 

Questions.’’ Therefore, while this period 

is not a formal comment period, the 

public may comment after the 

publication of the final EIS. 

Section 46.420 Terms used in an 

EIS. This section describes terms that 

are commonly used to describe concepts 

or activities in an EIS, including: (a) 

Statement of purpose and need, (b) 

Reasonable alternatives, (c) Range of 

alternatives, (d) Proposed action, (e) 

Preferred alternative, and (f) No action 

alternative. Definitions for proposed 

action and no action alternative have 

been moved to the definitions in section 

46.30 as they may both be applicable to 

EAs as well as EISs. Comments and 

responses on these terms, however, are 

below. In order to clarify that it is the 

bureau’s exercise of discretion that 

constitutes a proposed action that is 

subject to NEPA requirements, not just 

that the bureau might have a statutory 

role over a non-Federal entity’s planned 

activity, the final rule has been changed 

to read ‘‘discretion’’ rather than 


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‘‘authority’’ in proposed paragraph 

46.420(d), which is now in section 

46.30. Section 46.30 explains that a 

‘‘proposed action’’ includes ‘‘the 

bureau’s exercise of discretion over a 

non-Federal entity’s planned activity 

that falls under a Federal agency’s 

authority to issue permits, licenses, 

grants, rights-of-way, or other common 

Federal approvals, funding, or 

regulatory instruments.’’ 

Comment: Several commenters stated 

that the proposed rule should clarify 

that, in order for an alternative to be 

reasonable, it must also be technically 

and economically feasible based upon 

input from the project proponent. These 

commenters stated that the term ‘‘range 

of alternatives’’ is defined without 

regard to the technical and economic 

feasibility of the alternatives. 

Response: The Department’s final 

rule, at paragraph 46.420(b), specifies 

that the term ‘‘reasonable alternative’’ 

includes alternatives that are technically 

and economically practical or feasible 

and that satisfy the purpose and need. 

The Department agrees that the project 

proponent, as a member of the public, 

may provide input to the bureau with 

respect to the technical and economic 

feasibility of alternatives. Ultimately, 

however, the bureau determines 

whether an alternative is technically 

and economically practical or feasible 

and meets the purpose and need of the 

proposed action. The Department did 

not include a reference to technical and 

economic feasibility in the definition of 

‘‘range of alternatives.’’ Consistent with 

CEQ’s regulations, 40 CFR 1505.1(e), 

and as explained in CEQ’s ‘‘Forty Most 

Asked Questions’’ document, the range 

of alternatives includes all or a 

reasonable number of examples 

covering the full spectrum of reasonable 

alternatives, each of which must be 

rigorously explored and objectively 

evaluated, as well as those other 

alternatives which are eliminated from 

detailed study with a brief discussion of 

the reasons for eliminating them. This 

includes alternatives that may not be 

technically and economically feasible. 

The Department’s final rule, at 

paragraph 46.420(c), maintains this 

broad meaning of ‘‘range of 

alternatives.’’ 

Comment: Many commenters 

recommended that the rule expressly 

state that the applicant’s goals should be 

the primary consideration in the 

development of the statement of 

purpose and need. These commenters 

stated the Department should remove 

language in the proposed rule that 

requires agencies to consider the public 

interest in approving an application. 

Response: The Department agrees that 

the bureau should consider the needs 

and goals of the parties involved, 

including the applicant. However, the 

public interest is also a key 

consideration under NEPA. As such the 

Department has not changed the 

language of this provision in the final 

rule. 

Comment: One group recommended 

using the definition in paragraph 

46.420(b) for the feasibility requirement 

throughout the proposed rule because it 

is the most complete definition. 

Response: The Department concurs 

with the intent of this recommendation 

and has implemented this 

recommendation by changing 46.415(b) 

to read ‘‘range of alternatives’’ rather 

than ‘‘reasonable alternatives,’’ as 

‘‘range of alternatives’’ as defined at 

paragraph 46.420(c) incorporates the 

definition of ‘‘reasonable alternatives’’ 

at paragraph 46.420(b). 

Comment: One commenter stated that 

the definition of ‘‘range of alternatives’’ 

is circular and should be revised. 

Response: The Department agrees and 

has clarified that the phrase ‘‘rigorously 

explored and objectively evaluated’’ in 

the CEQ regulations applies only to 

reasonable alternatives. 

Comment: One commenter 

recommended that the Department 

distinguish the proposed federal action 

from the proposed project or activity for 

which the federal action is necessary. 

Response: The Department agrees and 

has clarified the language of section 

46.30 (formerly proposed as paragraph 

46.420(d)). Paragraph 46.420(d) explains 

that a ‘‘proposed action’’ includes ‘‘the 

bureau’s exercise of discretion over a 

non-Federal entity’s planned activity 

that falls under a Federal agency’s 

authority to issue permits, licenses, 

grants, rights-of-way, or other common 

Federal approvals, funding, or 

regulatory instruments.’’ 

Comment: A commenter agreed with 

the statement that no action can mean 

either no action or no change and that 

the proposed rule should acknowledge 

that the effect of the no action 

alternative is not always maintenance of 

the status quo. 

Response: As specified in proposed 

paragraph 46.420(f) and now at section 

46.30, the Department agrees that the no 

action alternative has two 

interpretations—‘‘no change from a 

current management direction or level 

of management intensity’’ or ‘‘no 

project.’’ Natural systems evolve over 

time. The ‘‘no action’’ alternative is not 

the alternative that results in ‘‘no 

change’’ to the environment; rather it 

represents the state of the environment 

without the proposed action or any of 

the alternatives. The Department has 

made minor edits to this section to 

clarify this point. 

Comment: One individual 

recommended inserting ‘‘national 

policies’’ after ‘‘giving consideration to’’ 

in paragraph (e). 

Response: The Department does not 

believe it is necessary to specifically 

include ‘‘national policies’’ as one of the 

factors that the bureau considers in 

identifying the preferred alternative. 

Proposed paragraph (e), now (d), refers 

to ‘‘other factors,’’ which is broad 

enough to include a variety of 

considerations, including, if 

appropriate, national policies. 

Comment: One commenter stated that 

it is unclear whether the terms 

‘‘practical’’ and ‘‘feasible’’ are intended 

to be synonymous within the proposed 

rule. 

Response: These terms are not 

intended to be synonymous. CEQ’s 

‘‘Forty Most Asked Questions’’ explains 

‘‘reasonable alternatives include those 

that are practical or feasible from the 

technical and economic standpoint and 

using common sense.’’ Any given 

reasonable alternative could be 

practical, feasible, or both. 

Comment: One commenter 

encouraged the Department to revise the 

proposed rule to clarify and reflect 

established NEPA precedent that 

agencies need not conduct a separate 

analysis of alternatives that have 

substantially similar consequences. 

Response: The Department agrees that 

bureaus need not separately analyze 

alternatives that have been shown to 

have substantially similar 

environmental consequences. This is a 

well-established principle; no change to 

the final rule is necessary. 

Section 46.425 Identification of the 

preferred alternative in an EIS. This 

section clarifies when the preferred 

alternative must be identified. 

Comment: Several groups questioned 

why more than one preferred alternative 

would be necessary and recommend 

that only one preferred alternative be 

allowed to avoid confusion. 

Response: The Department’s final rule 

is consistent with CEQ regulations, 

which expressly contemplate situations 

in which more than one preferred 

alternative may exist. 40 CFR 

1502.14(e). Rather than confusing the 

public, the Department believes that in 

certain circumstances presentation of 

more than one preferred alternatives 

may encourage public involvement in 

the process. 

Section 46.430 Environmental 

review and consultation requirements. 

This section establishes procedures for 

an EIS that also addresses other 


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environmental review requirements and 

approvals. It should be noted that this 

section allows for the completion of the 

NEPA analysis prior to obtaining all 

permits. However, if the terms of the 

permit are outside of the scope of 

analysis, additional NEPA analysis may 

be required. 

Comment: One commenter 

commented that CEQ is currently 

undertaking a project to integrate review 

under NEPA and the National Historic 

Preservation Act (NHPA). This 

commenter recommended that the 

Department assure effective integration 

of that project’s results with the 

proposed rule. In order to protect 

statutory rights of Indian tribes, another 

group recommended integration of 

regulations from the Advisory Council 

on Historic Preservation in this section 

of the proposed rule. 

Response: Regulations implementing 

the National Historic Preservation Act 

(NHPA) at 36 CFR Part 800 encourage 

Federal agencies to coordinate 

compliance with section 106 of the 

NHPA with steps taken to meet the 

requirements of NEPA (36 CFR 

800.8(a)). The Department is aware of 

the CEQ initiative to develop guidance 

to integrate review under NEPA and the 

NHPA, as called for in both the NHPA 

and the CEQ regulations (40 CFR 

1502.25(a)) and will work with CEQ to 

integrate any such guidance in the 

Department’s directives as appropriate. 

Please see response to comments 

addressing section 46.110 above 

regarding the Department’s fulfillment 

of its responsibilities toward Indian 

tribes. 

Comment: One group strongly 

supported consolidation of processes 

whenever possible to reduce delays and 

eliminate duplication of effort. This 

group proposed revision of the proposed 

rule to promote the consolidation of 

processes ‘‘to the extent possible and 

otherwise not prohibited by law.’’ This 

group also recommended the 

establishment of an exemption for 

mining operations based on the 

‘‘functional equivalence doctrine.’’ They 

maintained that other laws and 

regulations applicable to the mining 

operations provide a rigorous 

framework for providing a ‘‘harder 

look’’ at environmental consequences 

than NEPA. 

Response: The Department 

appreciates the support for its efforts to 

encourage consolidation of processes 

whenever possible. However, the 

Department does not believe the 

revision proposed by the commenter to 

paragraph 46.430(b) is necessary. The 

Department does not believe such an 

exemption for mining operations as 

advocated by the commenter is 

warranted, as it addresses matters 

beyond the scope of this rulemaking. 

Comment: One commenter 

recommended revision of ‘‘Paragraph (a) 

to clarify that an EIS need only identify 

and discuss studies relied upon for 

other consultation and review processes 

if the EIS is intended to serve as the 

NEPA compliance for those review 

processes.’’ 

Response: The Department believes 

no revision to the final rule is necessary. 

When paragraph 46.430(a) states ‘‘An 

EIS that also addresses other 

environmental review and consultation 

requirements. * * *’’ this means that it 

is precisely when the EIS in question is 

to serve as the NEPA compliance (in 

whole or in part) for the other 

environmental review and consultation 

requirements that the EIS needs to 

identify and discuss studies relied upon 

for these other review and consultation 

processes. 

Section 46.435 Inviting comments. 

This section requires bureaus to request 

comments from Federal, State, and local 

agencies, or tribal governments, and the 

public at large. This section also 

clarifies that bureaus do not have to 

delay a final EIS because they have not 

received comments. 

Comment: One group proposed 

revisions to the proposed rule, which 

include: (1) Requesting comments from 

any potentially affected tribal 

government, (2) recognizing the federal 

government’s continuing obligation to 

consult with tribal governments prior to 

making decisions which may impact 

tribal rights, (3) revising paragraph (c) to 

include all lands and waters within the 

boundaries of tribal lands, (4) inserting 

language to explicitly include Alaska 

Native tribes, and (5) including 

additional clauses covering various 

situations in which the Department 

must invite comments from a tribe. This 

group proposed these revisions because 

it believes the current language could be 

interpreted too narrowly by the 

Department bureaus, resulting in 

bureaus deciding not to request 

comments from tribal governments, 

even though a proposed action may 

affect tribal rights or interests. 

Response: CEQ regulations at 40 CFR 

1503.1(a)(4) require that agencies shall 

request the comments on a draft EIS 

from ‘‘the public, affirmatively soliciting 

comments from those persons or 

organizations who may be interested or 

affected.’’ This would necessarily 

include ‘‘any potentially affected tribal 

government’’ regardless of whether the 

proposed action may affect the 

environment of Indian trust or restricted 

land or other Indian trust resources, 

trust assets, or tribal health and safety, 

as specified in 46.435(c). In view of the 

CEQ regulations, the Department does 

not believe it is necessary to include the 

commenter’s proposed language in this 

final rule. For instance, under 40 CFR 

1503.1(a)(4), the bureaus would need to 

request comments from those persons or 

organizations affected by impacts to the 

resources noted by the commenters, 

including ‘‘one or more historic 

properties to which the tribe attaches 

religious and cultural significance’’ or 

‘‘wildlife or plant species that are 

important to the tribe for cultural 

purposes.’’ Likewise, if any member of 

the public specifically requests 

information regarding the analysis of 

effects of a proposed action on a specific 

identified area, the bureau would 

provide that information. 

This being said, the requirement to 

engage in government-to-government 

consultation with Indian tribes is a 

requirement apart from NEPA, and, in 

effect, broadens any consultation that 

needs to take place as a function of 

compliance with NEPA. The 

Department has other, more specific 

directives addressing government-togovernment consultation, as well as 

how the Department is to fulfill its trust 

responsibilities. See, e.g., 512 DM 2: 

‘‘Departmental Responsibilities for 

Indian Trust Resources’’; ECM97–2 

‘‘Departmental Responsibilities for 

Indian Trust Resources and Indian 

Sacred Sites on Federal Lands’’. 

Comment: One commenter 

encouraged the Department to provide 

for better coordination with permit 

applicants when the federal action being 

examined involves the issuance of a 

federal permit or authorization. 

Response: Please see discussion, 

above, regarding paragraph 46.430(a). 

Section 46.440 Eliminating 

duplication with State and local 

procedures. This section allows a State 

agency to jointly prepare an EIS, if 

applicable. 

No comments were received 

addressing this provision. 

Section 46.445 Preparing a 

legislative EIS. This section ensures 

that, when appropriate, a legislative EIS 

will be included as a part of the formal 

transmittal of a legislative proposal to 

the Congress. 

No comments were received 

addressing this provision. 

Section 46.450 Identifying the 

environmentally preferable alternative. 

This section provides for identifying the 

environmentally preferable alternative 

in the ROD. 

Comment: One commenter supported 

this part of the proposed rule as it is 

written. Multiple commenters oppose 


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this section of the proposed rule and 

urge the Department to delete this 

section from the proposed rule. They 

believed ‘‘that this provision is not 

necessary in light of the existing CEQ 

regulation found at 40 CFR 1505.2.’’ In 

the event that Department does not 

remove this section from the proposed 

rule, these commenters recommended 

that the Department revise this section 

to include clarification that this rule in 

no way obligates agencies to identify 

and select an ‘‘environmentally 

preferable alternative’’ during its NEPA 

analysis. 

Response: The Department 

appreciates these comments, but 

believes this provision is necessary to 

distinguish between ‘‘identifying’’ and 

‘‘selecting’’ an environmentally 

preferable alternative, both for 

Departmental personnel and members of 

the public. Although the 

environmentally preferable alternative 

must be identified in the ROD, the RO 

is not required to select the 

environmentally preferable alternative 

as the alternative that will be 

implemented. No change is made in the 

final rule. 

Procedural Requirements 

Regulatory Planning and Review (E.O. 

12866) 

This is a significant rule and has been 

reviewed by the Office of Management 

and Budget (OMB) under Executive 

Order 12866. This rule: 

(1) Is not an economically significant 

action because it will not have an 

annual effect of $100 million or more on 

the economy nor adversely affect 

productivity, competition, jobs, the 

environment, public health or safety, 

nor state or local governments. 

(2) Will not interfere with an action 

taken or planned by another agency. 

(3) Will not alter the budgetary impact 

of entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients of such programs. 

(4) Raises novel policy and legal 

issues. It is a significant rulemaking 

action subject to OMB review because of 

the extensive interest in Department 

planning and decision making relating 

to NEPA. 

In accordance with the Office of 

Management and Budget (OMB) 

Circular A–4, ‘‘Regulatory Analysis,’’ 

the Department has conducted a cost/ 

benefit analysis. The analysis compared 

the costs and benefits associated with 

the current condition of having 

Departmental implementing procedures 

combined with Departmental 

explanatory guidance in the DM and the 

condition of having implementing 

direction in regulations and explanatory 

guidance in the DM. 

Many benefits and costs associated 

with the rule are not quantifiable. Some 

of the benefits of this rule include 

collaborative and participatory public 

involvement to more fully address 

public concerns, timely and focused 

environmental analysis, and flexibility 

in preparation of environmental 

documents. These will be positive 

effects of the new rule. 

Moving NEPA procedures from the 

DM to regulations is expected to provide 

a variety of potential beneficial effects. 

This rule would meet the requirements 

of 40 CFR 1507.3 by placing the 

Department’s implementing procedures 

in their proper regulatory position. The 

Department will maintain Departmentand bureau-specific directives in the 

DM and bureau handbooks to assist 

field offices. This will facilitate timely 

bureau responses to procedural 

interpretations, training needs, and 

editorial changes to addresses and 

Internet links to assist bureaus when 

implementing the NEPA process. 

Finally, the changes to the Department 

NEPA procedures are intended to 

provide the Department specific options 

to meet the intent of NEPA through 

increased emphasis on collaboration 

and the use of a consensus-based 

approach when practicable. 

Thus, while no single effect of this 

rule creates a significant quantifiable 

improvement, the benefits outlined 

above taken together create the potential 

for visible improvements in the 

Department’s NEPA program. Further 

discussion of the costs and benefits 

associated with the rule is contained in 

the economic analysis which is 

incorporated in the administrative 

record for this rulemaking and may be 

accessed on the Department’s Office of 

Environmental Policy and Compliance 

Web site located at: http://www.doi.gov/ 

oepc. 

Regulatory Flexibility Act 

The Department certifies that this 

document will not have a significant 

economic effect on a substantial number 

of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

This document provides the Department 

with policy and procedures under 

NEPA and does not compel any other 

party to conduct any action. 

Congressional Review Act 

The Administrator of the Office of 

Information and Regulatory Affairs has 

determined that this rule is not a major 

rule under 5 U.S.C. 804(2). 

Unfunded Mandates Reform Act 

Under Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), the Department has 

assessed the effects of this rule on State, 

local, and tribal governments and the 

private sector. This rule does not 

compel the expenditure of $100 million 

or more by any State, local, or tribal 

government or anyone in the private 

sector. Therefore, a statement under 

section 202 of the Act is not required. 

Takings (E.O. 12630) 

This rule has been analyzed in 

accordance with the principles and 

criteria contained in E.O. 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights, and it has been determined that 

the rule does not pose the risk of a 

taking of Constitutionally protected 

private property. 

Federalism (E.O. 13132) 

The Department has considered this 

rule under the requirements of E.O. 

13132, Federalism. The Department has 

concluded that the rule conforms to the 

federalism principles set out in this 

E.O.; will not impose any compliance 

costs on the States; and will not have 

substantial direct effects on the States or 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

Department has determined that no 

further assessment of federalism 

implications is necessary. 

Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of E.O. 12988. 

Specifically, this rule: 

(a) Does not unduly burden the 

judicial system; 

(b) Meets the criteria of section 3(a) 

requiring that all regulations be 

reviewed to eliminate errors and 

ambiguity, and be written to minimize 

litigation; and 

(c) Meets the criteria of section 3(b)(2) 

requiring that all regulations be written 

in clear language and contain clear legal 

standards. 

Consultation With Indian Tribes (E.O. 

13175) 

In accordance with E.O. 13175 of 

November 6, 2000, and 512 DM 2, we 

have assessed this document’s impact 

on tribal trust resources and have 

determined that it does not directly 

affect tribal resources since it describes 

the Department’s procedures for its 

compliance with NEPA. 


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Paperwork Reduction Act 

This rule does not contain 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (44 U.S.C. 3501, et seq.). 

National Environmental Policy Act 

The CEQ does not direct agencies to 

prepare a NEPA analysis or document 

before establishing agency procedures 

that supplement the CEQ regulations for 

implementing NEPA. Agency NEPA 

procedures are procedural guidance to 

assist agencies in the fulfillment of 

agency responsibilities under NEPA, but 

are not the agency’s final determination 

of what level of NEPA analysis is 

required for a particular proposed 

action. The requirements for 

establishing agency NEPA procedures 

are set forth at 40 CFR 1505.1 and 

1507.3. The determination that 

establishing agency NEPA procedures 

does not require NEPA analysis and 

documentation has been upheld in 

Heartwood, Inc. v. U.S. Forest Service, 

73 F. Supp. 2d 962, 972–73 (S.D. III. 

1999), aff’d 230 F.3d 947. 954–55 (7th 

Cir. 2000). 

Data Quality Act 

In developing this rule we did not 

conduct or use a study requiring peer 

review under the Data Quality Act (Pub. 

L. 106–554). 

Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in E.O. 

13211. A Statement of Energy Effects is 

not required. 

Clarity of This Rule 

We are required by E.O.s 12866 and 

12988 and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

—Be logically organized; 

—Use the active voice to address 

readers directly; 

—Use clear language rather than jargon; 

—Be divided into short sections and 

sentences; and 

—Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments as 

instructed in the ADDRESSES section. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that you find unclear, which 

sections or sentences are too long, the 

sections where you think lists or tables 

would be useful, etc. 

List of Subjects in 43 CFR part 46 

Environmental protection, EISs. 

Dated: September 30, 2008. 

James E. Cason, 

Associate Deputy Secretary. 

■ For the reasons given in the preamble, 

the Office of the Secretary is adding a 

new part 46 to Subtitle A of title 43 of 

the Code of Federal Regulations to read 

as follows: 

PART 46—IMPLEMENTATION OF THE 

NATIONAL ENVIRONMENTAL POLICY 

ACT OF 1969 

Sec. 

Subpart A—General Information 

46.10 Purpose of this part. 

46.20 How to use this part. 

46.30 Definitions. 

Subpart B—Protection and Enhancement of 

Environmental Quality 

46.100 Federal action subject to the 

procedural requirements of NEPA. 

46.105 Using a contractor to prepare 

environmental documents. 

46.110 Incorporating consensus-based 

management. 

46.115 Consideration of past actions in 

analysis of cumulative effects. 

46.120 Using existing environmental 

analyses prepared pursuant to NEPA and 

the Council on Environmental Quality 

regulations. 

46.125 Incomplete or unavailable 

information. 

46.130 Mitigation measures in analyses. 

46.135 Incorporation of referenced 

documents into NEPA analysis. 

46.140 Using tiered documents. 

46.145 Using adaptive management. 

46.150 Emergency responses. 

46.155 Consultation, coordination, and 

cooperation with other agencies. 

46.160 Limitations on actions during the 

NEPA analysis process. 

46.170 Environmental effects abroad of 

major Federal actions. 

Subpart C—Initiating the NEPA Process 

46.200 Applying NEPA early. 

46.205 Actions categorically excluded from 

further NEPA review. 

46.210 Listing of Departmental Categorical 

Exclusions. 

46.215 Categorical Exclusions: 

Extraordinary circumstances. 

46.220 How to designate lead agencies. 

46.225 How to select cooperating agencies. 

46.230 Role of cooperating agencies in the 

NEPA process. 

46.235 NEPA scoping process. 

46.240 Establishing time limits for the 

NEPA process. 

Subpart D—Environmental Assessments 

46.300 Purpose of an environmental 

assessment and when it must be 

prepared. 

46.305 Public involvement in the 

environmental assessment process. 

46.310 Contents of an environmental 

assessment. 

46.315 How to format an environmental 

assessment. 

46.320 Adopting environmental 

assessments prepared by another agency, 

entity, or person. 

46.325 Conclusion of the environmental 

assessment process. 

Subpart E—Environmental Impact 

Statements 

46.400 Timing of environmental impact 

statement development. 

46.405 Remaining within page limits. 

46.415 Environmental impact statement 

content, alternatives, circulation and 

filing requirements. 

46.420 Terms used in an environmental 

impact statement. 

46.425 Identification of the preferred 

alternative in an environmental impact 

statement. 

46.430 Environmental review and 

consultation requirements. 

46.435 Inviting comments. 

46.440 Eliminating duplication with State 

and local procedures. 

46.445 Preparing a legislative 

environmental impact statement. 

46.450 Identifying the environmentally 

preferable alternative. 

Authority: 42 U.S.C. 4321 et seq. (The 

National Environmental Policy Act of 1969, 

as amended); Executive Order 11514, 

(Protection and Enhancement of 

Environmental Quality (March 5, 1970, as 

amended by Executive Order 11991, May 24, 

1977)); 40 CFR parts 1500–1508 (43 FR 

55978) (National Environmental Policy Act, 

Implementation of Procedural Provisions). 

Subpart A—General Information 

§ 46.10 Purpose of this part. 

(a) This part establishes procedures 

for the Department, and its constituent 

bureaus, to use for compliance with: 

(1) The National Environmental 

Policy Act (NEPA) of 1969, as amended 

(42 U.S.C. 4321 et seq.); and 

(2) The Council on Environmental 

Quality (CEQ) regulations for 

implementing the procedural provisions 

of NEPA (40 CFR parts 1500–1508). 

(b) Consistent with 40 CFR 1500.3, it 

is the Department’s intention that any 

trivial violation of these regulations will 

not give rise to any independent cause 

of action. 

§ 46.20 How to use this part. 

(a) This part supplements, and is to be 

used in conjunction with, the CEQ 

regulations except where it is 

inconsistent with other statutory 

requirements. The following table 

shows the corresponding CEQ 

regulations for the sections in subparts 

A—E of this part. Some sections in 

those subparts do not have a 

corresponding CEQ regulation. 

Subpart A 40 CFR 

46.10 Parts 1500–1508 


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46.20 No corresponding CEQ 

regulation 

46.30 No corresponding CEQ 

regulation 

Subpart B 

46.100 1508.14, 1508.18, 1508.23 

46.105 1506.5 

46.110 No corresponding CEQ 

regulation 

46.115 1508.7 

46.120 1502.9, 1502.20, 1502.21, 

1506.3 

46.125 1502.22 

46.130 1502.14 

46.135 1502.21 

46.140 1502.20 

46.145 No corresponding CEQ 

regulation 

46.150 1506.11 

46.155 1502.25, 1506.2 

46.160 1506.1 

46.170 No corresponding CEQ 

regulation 

Subpart C 

46.200 1501.2 

46.205 1508.4 

46.210 1508.4 

46.215 1508.4 

46.220 1501.5 

46.225 1501.6 

46.230 1501.6 

46.235 1501.7 

46.240 1501.8 

Subpart D 

46.300 1501.3 

46.305 1501.7, 1506.6 

46.310 1508.9 

46.315 No corresponding CEQ 

regulation 

46.320 1506.3 

46.325 1501.4 

Subpart E 

46.400 1502.5 

46.405 1502.7 

46.415 1502.10 

46.420 1502.14 

46.425 1502.14 

46.430 1502.25 

46.435 1503 

46.440 1506.2 

46.445 1506.8 

46.450 1505.2 

(b) The Responsible Official will 

ensure that the decision making process 

for proposals subject to this part 

includes appropriate NEPA review. 

(c) During the decision making 

process for each proposal subject to this 

part, the Responsible Official shall 

consider the relevant NEPA documents, 

public and agency comments (if any) on 

those documents, and responses to 

those comments, as part of 

consideration of the proposal and, 

except as specified in paragraphs 

46.210(a) through (j), shall include such 

documents, including supplements, 

comments, and responses as part of the 

administrative file. 

(d) The Responsible Official’s 

decision on a proposed action shall be 

within the range of alternatives 

discussed in the relevant environmental 

document. The Responsible Official’s 

decision may combine elements of 

alternatives discussed in the relevant 

environmental document if the effects of 

such combined elements of alternatives 

are reasonably apparent from the 

analysis in the relevant environmental 

document. 

(e) For situations involving an 

applicant, the Responsible Official 

should initiate the NEPA process upon 

acceptance of an application for a 

proposed Federal action. The 

Responsible Official must publish or 

otherwise provide policy information 

and make staff available to advise 

potential applicants of studies or other 

information, such as costs, foreseeably 

required for later Federal action. 

§ 46.30 Definitions. 

For purposes of this part, the 

following definitions supplement terms 

defined at 40 CFR parts 1500–1508. 

Adaptive management is a system of 

management practices based on clearly 

identified outcomes and monitoring to 

determine whether management actions 

are meeting desired outcomes; and, if 

not, facilitating management changes 

that will best ensure that outcomes are 

met or re-evaluated. Adaptive 

management recognizes that knowledge 

about natural resource systems is 

sometimes uncertain. 

Bureau means bureau, office, service, 

or survey within the Department of the 

Interior. 

Community-based training in the 

NEPA context is the training of local 

participants together with Federal 

participants in the workings of the 

environmental planning effort as it 

relates to the local community(ies). 

Controversial refers to circumstances 

where a substantial dispute exists as to 

the environmental consequences of the 

proposed action and does not refer to 

the existence of opposition to a 

proposed action, the effect of which is 

relatively undisputed. 

Environmental Statement Memoranda 

(ESM) are a series of instructions issued 

by the Department’s Office of 

Environmental Policy and Compliance 

to provide information and explanatory 

guidance in the preparation, 

completion, and circulation of NEPA 

documents. 

Environmentally preferable 

alternative is the alternative required by 

40 CFR 1505.2(b) to be identified in a 

record of decision (ROD), that causes 

the least damage to the biological and 

physical environment and best protects, 

preserves, and enhances historical, 

cultural, and natural resources. The 

environmentally preferable alternative 

is identified upon consideration and 

weighing by the Responsible Official of 

long-term environmental impacts 

against short-term impacts in evaluating 

what is the best protection of these 

resources. In some situations, such as 

when different alternatives impact 

different resources to different degrees, 

there may be more than one 

environmentally preferable alternative. 

No action alternative. 

(1) This term has two interpretations. 

First ‘‘no action’’ may mean ‘‘no 

change’’ from a current management 

direction or level of management 

intensity (e.g., if no ground-disturbance 

is currently underway, no action means 

no ground-disturbance). Second ‘‘no 

action’’ may mean ‘‘no project’’ in cases 

where a new project is proposed for 

implementation. 

(2) The Responsible Official must 

determine the ‘‘no action’’ alternative 

consistent with one of the definitions in 

paragraph (1) of this definition and 

appropriate to the proposed action to be 

analyzed in an environmental impact 

statement. The no action alternative 

looks at effects of not approving the 

action under consideration. 

Proposed action. This term refers to 

the bureau activity under consideration. 

It includes the bureau’s exercise of 

discretion over a non-Federal entity’s 

planned activity that falls under a 

Federal agency’s authority to issue 

permits, licenses, grants, rights-of-way, 

or other common Federal approvals, 

funding, or regulatory instruments. The 

proposed action: 

(1) Is not necessarily, but may 

become, during the NEPA process, the 

bureau preferred alternative or (in a 

record of decision for an environmental 

impact statement, in accordance with 40 

CFR 1505.2) an environmentally 

preferable alternative; and 

(2) Must be clearly described in order 

to proceed with NEPA analysis. 

Reasonably foreseeable future actions 

include those federal and non-federal 

activities not yet undertaken, but 

sufficiently likely to occur, that a 

Responsible Official of ordinary 

prudence would take such activities 

into account in reaching a decision. 

These federal and non-federal activities 

that must be taken into account in the 

analysis of cumulative impact include, 

but are not limited to, activities for 

which there are existing decisions, 

funding, or proposals identified by the 


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bureau. Reasonably foreseeable future 

actions do not include those actions that 

are highly speculative or indefinite. 

Responsible Official is the bureau 

employee who is delegated the authority 

to make and implement a decision on a 

proposed action and is responsible for 

ensuring compliance with NEPA. 

Subpart B—Protection and 

Enhancement of Environmental Quality 

§ 46.100 Federal action subject to the 

procedural requirements of NEPA. 

(a) A bureau proposed action is 

subject to the procedural requirements 

of NEPA if it would cause effects on the 

human environment (40 CFR 1508.14), 

and is subject to bureau control and 

responsibility (40 CFR 1508.18). The 

determination of whether a proposed 

action is subject to the procedural 

requirements of NEPA depends on the 

extent to which bureaus exercise control 

and responsibility over the proposed 

action and whether Federal funding or 

approval are necessary to implement it. 

If Federal funding is provided with no 

Federal agency control as to the 

expenditure of such funds by the 

recipient, NEPA compliance is not 

necessary. The proposed action is not 

subject to the procedural requirements 

of NEPA if it is exempt from the 

requirements of section 102(2) of NEPA. 

(b) A bureau shall apply the 

procedural requirements of NEPA when 

the proposal is developed to the point 

that: 

(1) The bureau has a goal and is 

actively preparing to make a decision on 

one or more alternative means of 

accomplishing that goal; and 

(2) The effects of the proposed action 

can be meaningfully evaluated (40 CFR 

1508.23). 

§ 46.105 Using a contractor to prepare 

environmental documents. 

A Responsible Official may use a 

contractor to prepare any environmental 

document in accordance with the 

standards of 40 CFR 1506.5(b) and (c). 

If a Responsible Official uses a 

contractor, the Responsible Official 

remains responsible for: 

(a) Preparation and adequacy of the 

environmental documents; and 

(b) Independent evaluation of the 

environmental documents after their 

completion. 

§ 46.110 Incorporating consensus-based 

management. 

(a) Consensus-based management 

incorporates direct community 

involvement in consideration of bureau 

activities subject to NEPA analyses, 

from initial scoping to implementation 

of the bureau decision. It seeks to 

achieve agreement from diverse 

interests on the goals of, purposes of, 

and needs for bureau plans and 

activities, as well as the methods 

anticipated to carry out those plans and 

activities. For the purposes of this Part, 

consensus-based management involves 

outreach to persons, organizations or 

communities who may be interested in 

or affected by a proposed action with an 

assurance that their input will be given 

consideration by the Responsible 

Official in selecting a course of action. 

(b) In incorporating consensus-based 

management in the NEPA process, 

bureaus should consider any consensusbased alternative(s) put forth by those 

participating persons, organizations or 

communities who may be interested in 

or affected by the proposed action. 

While there is no guarantee that any 

particular consensus-based alternative 

will be considered to be a reasonable 

alternative or be identified as the 

bureau’s preferred alternative, bureaus 

must be able to show that the reasonable 

consensus-based alternative, if any, is 

reflected in the evaluation of the 

proposed action and discussed in the 

final decision. To be selected for 

implementation, a consensus-based 

alternative must be fully consistent with 

NEPA, the CEQ regulations, and all 

applicable statutory and regulatory 

provisions, as well as Departmental and 

bureau written policies and guidance. 

(c) The Responsible Official must, 

whenever practicable, use a consensusbased management approach to the 

NEPA process. 

(d) If the Responsible Official 

determines that the consensus-based 

alternative, if any, is not the preferred 

alternative, he or she must state the 

reasons for this determination in the 

environmental document. 

(e) When practicing consensus-based 

management in the NEPA process, 

bureaus must comply with all 

applicable laws, including any 

applicable provisions of the Federal 

Advisory Committee Act (FACA). 

§ 46.115 Consideration of past actions in 

the analysis of cumulative effects. 

When considering the effects of past 

actions as part of a cumulative effects 

analysis, the Responsible Official must 

analyze the effects in accordance with 

40 CFR 1508.7 and in accordance with 

relevant guidance issued by the Council 

on Environmental Quality, such as ‘‘The 

Council on Environmental Quality 

Guidance Memorandum on 

Consideration of Past Actions in 

Cumulative Effects Analysis’’ dated June 

24, 2005, or any superseding Council on 

Environmental Quality guidance. 

§ 46.120 Using existing environmental 

analyses prepared pursuant to NEPA and 

the Council on Environmental Quality 

regulations. 

(a) When available, the Responsible 

Official should use existing NEPA 

analyses for assessing the impacts of a 

proposed action and any alternatives. 

Procedures for adoption or 

incorporation by reference of such 

analyses must be followed where 

applicable. 

(b) If existing NEPA analyses include 

data and assumptions appropriate for 

the analysis at hand, the Responsible 

Official should use these existing NEPA 

analyses and/or their underlying data 

and assumptions where feasible. 

(c) An existing environmental 

analysis prepared pursuant to NEPA 

and the Council on Environmental 

Quality regulations may be used in its 

entirety if the Responsible Official 

determines, with appropriate supporting 

documentation, that it adequately 

assesses the environmental effects of the 

proposed action and reasonable 

alternatives. The supporting record 

must include an evaluation of whether 

new circumstances, new information or 

changes in the action or its impacts not 

previously analyzed may result in 

significantly different environmental 

effects. 

(d) Responsible Officials should make 

the best use of existing NEPA 

documents by supplementing, tiering to, 

incorporating by reference, or adopting 

previous NEPA environmental analyses 

to avoid redundancy and unnecessary 

paperwork. 

§ 46.125 Incomplete or unavailable 

information. 

In circumstances where the 

provisions of 40 CFR 1502.22 apply, 

bureaus must consider all costs to 

obtain information. These costs include 

monetary costs as well as other nonmonetized costs when appropriate, such 

as social costs, delays, opportunity 

costs, and non-fulfillment or non-timely 

fulfillment of statutory mandates. 

§ 46.130 Mitigation measures in analyses. 

(a) Bureau proposed action. The 

analysis of the proposed action and any 

alternatives must include an analysis of 

the effects of the proposed action or 

alternative as well as analysis of the 

effects of any appropriate mitigation 

measures or best management practices 

that are considered. The mitigation 

measures can be analyzed either as 

elements of alternatives or in a separate 

discussion of mitigation. 

(b) Applicant proposals (i.e., bureau 

decision-making on such proposals is 

the proposed action). An applicant’s 


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proposal presented to the bureau for 

analysis must include any ameliorative 

design elements (including stipulations, 

conditions, or best management 

practices), required to make the 

proposal conform to applicable legal 

requirements, as well as any voluntary 

ameliorative design element(s). The 

effects of any mitigation measures other 

than the ameliorative design elements 

included in the applicant’s proposal 

must also be analyzed. The analysis of 

these mitigation measures can be 

structured as a matter of consideration 

of alternatives to approving the 

applicant’s proposal or as separate 

mitigation measures to be imposed on 

any alternative selected for 

implementation. 

§ 46.135 Incorporation of referenced 

documents into NEPA analysis. 

(a) The Responsible Official must 

determine that the analysis and 

assumptions used in the referenced 

document are appropriate for the 

analysis at hand. 

(b) Citations of specific information or 

analysis from other source documents 

should include the pertinent page 

numbers or other relevant identifying 

information. 

(c) Publications incorporated into 

NEPA analysis by reference must be 

listed in the bibliography. Such 

publications must be readily available 

for review and, when not readily 

available, they must be made available 

for review as part of the record 

supporting the proposed action. 

§ 46.140 Using tiered documents. 

A NEPA document that tiers to 

another broader NEPA document in 

accordance with 40 CFR 1508.28 must 

include a finding that the conditions 

and environmental effects described in 

the broader NEPA document are still 

valid or address any exceptions. 

(a) Where the impacts of the narrower 

action are identified and analyzed in the 

broader NEPA document, no further 

analysis is necessary, and the previously 

prepared document can be used for 

purposes of the pending action. 

(b) To the extent that any relevant 

analysis in the broader NEPA document 

is not sufficiently comprehensive or 

adequate to support further decisions, 

the tiered NEPA document must explain 

this and provide any necessary analysis. 

(c) An environmental assessment 

prepared in support of an individual 

proposed action can be tiered to a 

programmatic or other broader-scope 

environmental impact statement. An 

environmental assessment may be 

prepared, and a finding of no significant 

impact reached, for a proposed action 

with significant effects, whether direct, 

indirect, or cumulative, if the 

environmental assessment is tiered to a 

broader environmental impact statement 

which fully analyzed those significant 

effects. Tiering to the programmatic or 

broader-scope environmental impact 

statement would allow the preparation 

of an environmental assessment and a 

finding of no significant impact for the 

individual proposed action, so long as 

any previously unanalyzed effects are 

not significant. A finding of no 

significant impact other than those 

already disclosed and analyzed in the 

environmental impact statement to 

which the environmental assessment is 

tiered may also be called a ‘‘finding of 

no new significant impact.’’ 

§ 46.145 Using adaptive management. 

Bureaus should use adaptive 

management, as appropriate, 

particularly in circumstances where 

long-term impacts may be uncertain and 

future monitoring will be needed to 

make adjustments in subsequent 

implementation decisions. The NEPA 

analysis conducted in the context of an 

adaptive management approach should 

identify the range of management 

options that may be taken in response 

to the results of monitoring and should 

analyze the effects of such options. The 

environmental effects of any adaptive 

management strategy must be evaluated 

in this or subsequent NEPA analysis. 

§ 46.150 Emergency responses. 

This section applies only if the 

Responsible Official determines that an 

emergency exists that makes it 

necessary to take urgently needed 

actions before preparing a NEPA 

analysis and documentation in 

accordance with the provisions in 

subparts D and E of this part. 

(a) The Responsible Official may take 

those actions necessary to control the 

immediate impacts of the emergency 

that are urgently needed to mitigate 

harm to life, property, or important 

natural, cultural, or historic resources. 

When taking such actions, the 

Responsible Official shall take into 

account the probable environmental 

consequences of these actions and 

mitigate foreseeable adverse 

environmental effects to the extent 

practical. 

(b) The Responsible Official shall 

document in writing the determination 

that an emergency exists and describe 

the responsive action(s) taken at the 

time the emergency exists. The form of 

that documentation is within the 

discretion of the Responsible Official. 

(c) If the Responsible Official 

determines that proposed actions taken 

in response to an emergency, beyond 

actions noted in paragraph (a) of this 

section, are not likely to have significant 

environmental impacts, the Responsible 

Official shall document that 

determination in an environmental 

assessment and a finding of no 

significant impact prepared in 

accordance with this part, unless 

categorically excluded (see subpart C of 

this part). If the Responsible Official 

finds that the nature and scope of the 

subsequent actions related to the 

emergency require taking such proposed 

actions prior to completing an 

environmental assessment and a finding 

of no significant impact, the 

Responsible Official shall consult with 

the Office of Environmental Policy and 

Compliance about alternative 

arrangements for NEPA compliance. 

The Assistant Secretary, Policy 

Management and Budget or his/her 

designee may grant an alternative 

arrangement. Any alternative 

arrangement must be documented. 

Consultation with the Department must 

be coordinated through the appropriate 

bureau headquarters. 

(d) The Department shall consult with 

CEQ about alternative arrangements as 

soon as possible if the Responsible 

Official determines that proposed 

actions, taken in response to an 

emergency, beyond actions noted in 

paragraph (a) of this section, are likely 

to have significant environmental 

impacts. The Responsible Official shall 

consult with appropriate bureau 

headquarters and the Department, about 

alternative arrangements as soon as the 

Responsible Official determines that the 

proposed action is likely to have a 

significant environmental effect. Such 

alternative arrangements will apply only 

to the proposed actions necessary to 

control the immediate impacts of the 

emergency. Other proposed actions 

remain subject to NEPA analysis and 

documentation in accordance with this 

part. 

§ 46.155 Consultation, coordination, and 

cooperation with other agencies. 

The Responsible Official must 

whenever possible consult, coordinate, 

and cooperate with relevant State, local, 

and tribal governments and other 

bureaus and Federal agencies 

concerning the environmental effects of 

any Federal action within the 

jurisdictions or related to the interests of 

these entities. 

§ 46.160 Limitations on actions during the 

NEPA analysis process. 

During the preparation of a program 

or plan NEPA document, the 

Responsible Official may undertake any 


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major Federal action in accordance with 

40 CFR 1506.1 when that action is 

within the scope of, and analyzed in, an 

existing NEPA document supporting the 

current plan or program, so long as there 

is adequate NEPA documentation to 

support the individual action. 

§ 46.170 Environmental effects abroad of 

major Federal actions. 

(a) In order to facilitate informed 

decision-making, the Responsible 

Official having ultimate responsibility 

for authorizing and approving proposed 

actions encompassed by the provisions 

of Executive Order (EO) 12114 shall 

follow the provisions and procedures of 

that EO. EO 12114 ‘‘represents the 

United States government’s exclusive 

and complete determination of the 

procedural and other actions to be taken 

by Federal agencies to further the 

purpose of the National Environmental 

Policy Act, with respect to the 

environment outside the United States, 

its territories and possessions.’’ 

(b) When implementing EO 12114, 

bureaus shall coordinate with the 

Department. The Department shall then 

consult with the Department of State, 

which shall coordinate all 

communications by the Department 

with foreign governments concerning 

environmental agreements and other 

arrangements in implementing EO 

12114. 

Subpart C—Initiating the NEPA 

Process 

§ 46.200 Applying NEPA early. 

(a) For any potentially major proposed 

Federal action (40 CFR 1508.23 and 

1508.18) that may have potentially 

significant environmental impacts, 

bureaus must coordinate, as early as 

feasible, with: 

(1) Any other bureaus or Federal 

agencies, State, local, and tribal 

governments having jurisdiction by law 

or special expertise; and 

(2) Appropriate Federal, State, local, 

and tribal governments authorized to 

develop and enforce environmental 

standards or to manage and protect 

natural resources or other aspects of the 

human environment. 

(b) Bureaus must solicit the 

participation of all those persons or 

organizations that may be interested or 

affected as early as possible, such as at 

the time an application is received or 

when the bureau initiates the NEPA 

process for a proposed action. 

(c) Bureaus should provide, where 

practicable, any appropriate 

community-based training to reduce 

costs, prevent delays, and facilitate and 

promote efficiency in the NEPA process. 

(d) Bureaus should inform private or 

non-Federal applicants, to the extent 

feasible, of: 

(1) Any appropriate environmental 

information that the applicants must 

include in their applications; and 

(2) Any consultation with other 

Federal agencies, or State, local, or tribal 

governments that the applicant must 

accomplish before or during the 

application process. 

(e) Bureaus must inform applicants as 

soon as practicable of any responsibility 

they will bear for funding 

environmental analyses associated with 

their proposals. 

§ 46.205 Actions categorically excluded 

from further NEPA review. 

Categorical Exclusion means a 

category or kind of action that has no 

significant individual or cumulative 

effect on the quality of the human 

environment. See 40 CFR 1508.4. 

(a) Except as provided in paragraph 

(c) of this section, if an action is covered 

by a Departmental categorical exclusion, 

the bureau is not required to prepare an 

environmental assessment (see subpart 

D of this part) or an environmental 

impact statement (see subpart E of this 

part). If a proposed action does not meet 

the criteria for any of the listed 

Departmental categorical exclusions or 

any of the individual bureau categorical 

exclusions, then the proposed action 

must be analyzed in an environmental 

assessment or environmental impact 

statement. 

(b) The actions listed in section 

46.210 are categorically excluded, 

Department-wide, from preparation of 

environmental assessments or 

environmental impact statements. 

(c) The CEQ Regulations at 40 CFR 

1508.4 require agency procedures to 

provide for extraordinary circumstances 

in which a normally excluded action 

may have a significant environmental 

effect and require additional analysis 

and action. Section 46.215 lists the 

extraordinary circumstances under 

which actions otherwise covered by a 

categorical exclusion require analyses 

under NEPA. 

(1) Any action that is normally 

categorically excluded must be 

evaluated to determine whether it meets 

any of the extraordinary circumstances 

in section 46.215; if it does, further 

analysis and environmental documents 

must be prepared for the action. 

(2) Bureaus must work within existing 

administrative frameworks, including 

any existing programmatic agreements, 

when deciding how to apply any of the 

section 46.215 extraordinary 

circumstances. 

(d) Congress may establish categorical 

exclusions by legislation, in which case 

the terms of the legislation determine 

how to apply those categorical 

exclusions. 

§ 46.210 Listing of Departmental 

categorical exclusions. 

The following actions are 

categorically excluded under paragraph 

46.205(b), unless any of the 

extraordinary circumstances in section 

46.215 apply: 

(a) Personnel actions and 

investigations and personnel services 

contracts. 

(b) Internal organizational changes 

and facility and bureau reductions and 

closings. 

(c) Routine financial transactions 

including such things as salaries and 

expenses, procurement contracts (e.g., 

in accordance with applicable 

procedures and Executive Orders for 

sustainable or green procurement), 

guarantees, financial assistance, income 

transfers, audits, fees, bonds, and 

royalties. 

(d) Departmental legal activities 

including, but not limited to, such 

things as arrests, investigations, patents, 

claims, and legal opinions. This does 

not include bringing judicial or 

administrative civil or criminal 

enforcement actions which are outside 

the scope of NEPA in accordance with 

40 CFR 1508.18(a). 

(e) Nondestructive data collection, 

inventory (including field, aerial, and 

satellite surveying and mapping), study, 

research, and monitoring activities. 

(f) Routine and continuing 

government business, including such 

things as supervision, administration, 

operations, maintenance, renovations, 

and replacement activities having 

limited context and intensity (e.g., 

limited size and magnitude or shortterm effects). 

(g) Management, formulation, 

allocation, transfer, and reprogramming 

of the Department’s budget at all levels. 

(This does not exclude the preparation 

of environmental documents for 

proposals included in the budget when 

otherwise required.) 

(h) Legislative proposals of an 

administrative or technical nature 

(including such things as changes in 

authorizations for appropriations and 

minor boundary changes and land title 

transactions) or having primarily 

economic, social, individual, or 

institutional effects; and comments and 

reports on referrals of legislative 

proposals. 

(i) Policies, directives, regulations, 

and guidelines: that are of an 

administrative, financial, legal, 


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technical, or procedural nature; or 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase. 

(j) Activities which are educational, 

informational, advisory, or consultative 

to other agencies, public and private 

entities, visitors, individuals, or the 

general public. 

(k) Hazardous fuels reduction 

activities using prescribed fire not to 

exceed 4,500 acres, and mechanical 

methods for crushing, piling, thinning, 

pruning, cutting, chipping, mulching, 

and mowing, not to exceed 1,000 acres. 

Such activities: 

(1) Shall be limited to areas— 

(i) In wildland-urban interface; and 

(ii) Condition Classes 2 or 3 in Fire 

Regime Groups I, II, or III, outside the 

wildland-urban interface; 

(2) Shall be identified through a 

collaborative framework as described in 

‘‘A Collaborative Approach for 

Reducing Wildland Fire Risks to 

Communities and the Environment 10- 

Year Comprehensive Strategy 

Implementation Plan;’’ 

(3) Shall be conducted consistent with 

bureau and Departmental procedures 

and applicable land and resource 

management plans; 

(4) Shall not be conducted in 

wilderness areas or impair the 

suitability of wilderness study areas for 

preservation as wilderness; and 

(5) Shall not include the use of 

herbicides or pesticides or the 

construction of new permanent roads or 

other new permanent infrastructure; and 

may include the sale of vegetative 

material if the primary purpose of the 

activity is hazardous fuels reduction. 

(Refer to the ESM Series for additional, 

required guidance.) 

(l) Post-fire rehabilitation activities 

not to exceed 4,200 acres (such as tree 

planting, fence replacement, habitat 

restoration, heritage site restoration, 

repair of roads and trails, and repair of 

damage to minor facilities such as 

campgrounds) to repair or improve 

lands unlikely to recover to a 

management approved condition from 

wildland fire damage, or to repair or 

replace minor facilities damaged by fire. 

Such activities must comply with the 

following (Refer to the ESM Series for 

additional, required guidance.): 

(1) Shall be conducted consistent with 

bureau and Departmental procedures 

and applicable land and resource 

management plans; 

(2) Shall not include the use of 

herbicides or pesticides or the 

construction of new permanent roads or 

other new permanent infrastructure; and 

(3) Shall be completed within three 

years following a wildland fire. 

§ 46.215 Categorical Exclusions: 

Extraordinary circumstances. 

Extraordinary circumstances (see 

paragraph 46.205(c)) exist for individual 

actions within categorical exclusions 

that may meet any of the criteria listed 

in paragraphs (a) through (l) of this 

section. Applicability of extraordinary 

circumstances to categorical exclusions 

is determined by the Responsible 

Official. 

(a) Have significant impacts on public 

health or safety. 

(b) Have significant impacts on such 

natural resources and unique geographic 

characteristics as historic or cultural 

resources; park, recreation or refuge 

lands; wilderness areas; wild or scenic 

rivers; national natural landmarks; sole 

or principal drinking water aquifers; 

prime farmlands; wetlands (EO 11990); 

floodplains (EO 11988); national 

monuments; migratory birds; and other 

ecologically significant or critical areas. 

(c) Have highly controversial 

environmental effects or involve 

unresolved conflicts concerning 

alternative uses of available resources 

[NEPA section 102(2)(E)]. 

(d) Have highly uncertain and 

potentially significant environmental 

effects or involve unique or unknown 

environmental risks. 

(e) Establish a precedent for future 

action or represent a decision in 

principle about future actions with 

potentially significant environmental 

effects. 

(f) Have a direct relationship to other 

actions with individually insignificant 

but cumulatively significant 

environmental effects. 

(g) Have significant impacts on 

properties listed, or eligible for listing, 

on the National Register of Historic 

Places as determined by the bureau. 

(h) Have significant impacts on 

species listed, or proposed to be listed, 

on the List of Endangered or Threatened 

Species or have significant impacts on 

designated Critical Habitat for these 

species. 

(i) Violate a Federal law, or a State, 

local, or tribal law or requirement 

imposed for the protection of the 

environment. 

(j) Have a disproportionately high and 

adverse effect on low income or 

minority populations (EO 12898). 

(k) Limit access to and ceremonial use 

of Indian sacred sites on Federal lands 

by Indian religious practitioners or 

significantly adversely affect the 

physical integrity of such sacred sites 

(EO 13007). 

(l) Contribute to the introduction, 

continued existence, or spread of 

noxious weeds or non-native invasive 

species known to occur in the area or 

actions that may promote the 

introduction, growth, or expansion of 

the range of such species (Federal 

Noxious Weed Control Act and EO 

13112). 

§ 46.220 How to designate lead agencies. 

(a) In most cases, the Responsible 

Official should designate one Federal 

agency as the lead with the remaining 

Federal, State, tribal governments, and 

local agencies assuming the role of 

cooperating agency. In this manner, the 

other Federal, State, and local agencies 

can work to ensure that the NEPA 

document will meet their needs for 

adoption and application to their related 

decision(s). 

(b) In some cases, a non-Federal 

agency (including a tribal government) 

must comply with State or local 

requirements that are comparable to the 

NEPA requirements. In these cases, the 

Responsible Official may designate the 

non-Federal agency as a joint lead 

agency. (See 40 CFR 1501.5 and 1506.2 

for a description of the selection of lead 

agencies, the settlement of lead agency 

disputes, and the use of joint lead 

agencies.) 

(c) In some cases, the Responsible 

Official may establish a joint lead 

relationship among several Federal 

agencies. If there is a joint lead, then 

one Federal agency must be identified 

as the agency responsible for filing the 

environmental impact statement with 

EPA. 

§ 46.225 How to select cooperating 

agencies. 

(a) An ‘‘eligible governmental entity’’ 

is: 

(1) Any Federal agency that is 

qualified to participate in the 

development of an environmental 

impact statement as provided for in 40 

CFR 1501.6 and 1508.5 by virtue of its 

jurisdiction by law, as defined in 40 

CFR 1508.15; 

(2) Any Federal agency that is 

qualified to participate in the 

development of an environmental 

impact statement by virtue of its special 

expertise, as defined in 40 CFR 1508.26; 

or 

(3) Any non-Federal agency (State, 

tribal, or local) with qualifications 

similar to those in paragraphs (a)(1) and 

(a)(2) of this section. 

(b) Except as described in paragraph 

(c) of this section, the Responsible 

Official for the lead bureau must invite 

eligible governmental entities to 

participate as cooperating agencies 


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when the bureau is developing an 

environmental impact statement. 

(c) The Responsible Official for the 

lead bureau must consider any request 

by an eligible governmental entity to 

participate in a particular 

environmental impact statement as a 

cooperating agency. If the Responsible 

Official for the lead bureau denies a 

request, or determines it is 

inappropriate to extend an invitation, he 

or she must state the reasons in the 

environmental impact statement. Denial 

of a request or not extending an 

invitation for cooperating agency status 

is not subject to any internal 

administrative appeals process, nor is it 

a final agency action subject to review 

under the Administrative Procedure 

Act, 5 U.S.C. 701 et seq. 

(d) Bureaus should work with 

cooperating agencies to develop and 

adopt a memorandum of understanding 

that includes their respective roles, 

assignment of issues, schedules, and 

staff commitments so that the NEPA 

process remains on track and within the 

time schedule. Memoranda of 

understanding must be used in the case 

of non-Federal agencies and must 

include a commitment to maintain the 

confidentiality of documents and 

deliberations during the period prior to 

the public release by the bureau of any 

NEPA document, including drafts. 

(e) The procedures of this section may 

be used for an environmental 

assessment. 

§ 46.230 Role of cooperating agencies in 

the NEPA process. 

In accordance with 40 CFR 1501.6, 

throughout the development of an 

environmental document, the lead 

bureau will collaborate, to the fullest 

extent possible, with all cooperating 

agencies concerning those issues 

relating to their jurisdiction and special 

expertise. Cooperating agencies may, by 

agreement with the lead bureau, help to 

do the following: 

(a) Identify issues to be addressed; 

(b) Arrange for the collection and/or 

assembly of necessary resource, 

environmental, social, economic, and 

institutional data; 

(c) Analyze data; 

(d) Develop alternatives; 

(e) Evaluate alternatives and estimate 

the effects of implementing each 

alternative; and 

(f) Carry out any other task necessary 

for the development of the 

environmental analysis and 

documentation. 

§ 46.235 NEPA scoping process. 

(a) Scoping is a process that continues 

throughout the planning and early 

stages of preparation of an 

environmental impact statement. 

Scoping is required for an 

environmental impact statement; 

scoping may be helpful during 

preparation of an environmental 

assessment, but is not required (see 

paragraph 46.305(a) Public involvement 

in the environmental assessment 

process). For an environmental impact 

statement, bureaus must use scoping to 

engage State, local and tribal 

governments and the public in the early 

identification of concerns, potential 

impacts, relevant effects of past actions 

and possible alternative actions. 

Scoping is an opportunity to introduce 

and explain the interdisciplinary 

approach and solicit information as to 

additional disciplines that should be 

included. Scoping also provides an 

opportunity to bring agencies and 

applicants together to lay the 

groundwork for setting time limits, 

expediting reviews where possible, 

integrating other environmental 

reviews, and identifying any major 

obstacles that could delay the process. 

The Responsible Official shall 

determine whether, in some cases, the 

invitation requirement in 40 CFR 

1501.7(a)(1) may be satisfied by 

including such an invitation in the 

notice of intent (NOI). 

(b) In scoping meetings, newsletters, 

or by other communication methods 

appropriate to scoping, the lead agency 

must make it clear that the lead agency 

is ultimately responsible for 

determining the scope of an 

environmental impact statement and 

that suggestions obtained during 

scoping are only options for the bureau 

to consider. 

§ 46.240 Establishing time limits for the 

NEPA process. 

(a) For each proposed action, on a 

case-by-case basis, bureaus shall: 

(1) Set time limits from the start to the 

finish of the NEPA analysis and 

documentation, consistent with the 

requirements of 40 CFR 1501.8 and 

other legal obligations, including 

statutory and regulatory timeframes; 

(2) Consult with cooperating agencies 

in setting time limits; and 

(3) Encourage cooperating agencies to 

meet established time frames. 

(b) Time limits should reflect the 

availability of Department and bureau 

personnel and funds. Efficiency of the 

NEPA process is dependent on the 

management capabilities of the lead 

bureau, which must assemble an 

interdisciplinary team and/or qualified 

staff appropriate to the type of project to 

be analyzed to ensure timely completion 

of NEPA documents. 

Subpart D—Environmental 

Assessments 

§ 46.300 Purpose of an environmental 

assessment and when it must be prepared. 

The purpose of an environmental 

assessment is to allow the Responsible 

Official to determine whether to prepare 

an environmental impact statement or a 

finding of no significant impact. 

(a) A bureau must ensure that an 

environmental assessment is prepared 

for all proposed Federal actions, except 

those: 

(1) That are covered by a categorical 

exclusion; 

(2) That are covered sufficiently by an 

earlier environmental document as 

determined and documented by the 

Responsible Official; or 

(3) For which the bureau has already 

decided to prepare an environmental 

impact statement. 

(b) A bureau may prepare an 

environmental assessment for any 

proposed action at any time to: 

(1) Assist in planning and decisionmaking; 

(2) Further the purposes of NEPA 

when no environmental impact 

statement is necessary; or 

(3) Facilitate environmental impact 

statement preparation. 

§ 46.305 Public involvement in the 

environmental assessment process. 

(a) The bureau must, to the extent 

practicable, provide for public 

notification and public involvement 

when an environmental assessment is 

being prepared. However, the methods 

for providing public notification and 

opportunities for public involvement 

are at the discretion of the Responsible 

Official. 

(1) The bureau must consider 

comments that are timely received, 

whether specifically solicited or not. 

(2) Although scoping is not required, 

the bureau may apply a scoping process 

to an environmental assessment. 

(b) Publication of a ‘‘draft’’ 

environmental assessment is not 

required. Bureaus may seek comments 

on an environmental assessment if they 

determine it to be appropriate, such as 

when the level of public interest or the 

uncertainty of effects warrants, and may 

revise environmental assessments based 

on comments received without need of 

initiating another comment period. 

(c) The bureau must notify the public 

of the availability of an environmental 

assessment and any associated finding 

of no significant impact once they have 

been completed. Comments on a finding 

of no significant impact do not need to 

be solicited, except as required by 40 

CFR 1501.4(e)(2). 


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(d) Bureaus may allow cooperating 

agencies (as defined in § 46.225) to 

participate in developing environmental 

assessments. 

§ 46.310 Contents of an environmental 

assessment. 

(a) At a minimum, an environmental 

assessment must include brief 

discussions of: 

(1) The proposal; 

(2) The need for the proposal; 

(3) The environmental impacts of the 

proposed action; 

(4) The environmental impacts of the 

alternatives considered; and 

(5) A list of agencies and persons 

consulted. 

(b) When the Responsible Official 

determines that there are no unresolved 

conflicts about the proposed action with 

respect to alternative uses of available 

resources, the environmental 

assessment need only consider the 

proposed action and does not need to 

consider additional alternatives, 

including the no action alternative. (See 

section 102(2)(E) of NEPA). 

(c) In addition, an environmental 

assessment may describe a broader 

range of alternatives to facilitate 

planning and decision-making. 

(d) A proposed action or alternative(s) 

may include adaptive management 

strategies allowing for adjustment of the 

action during implementation. If the 

adjustments to an action are clearly 

articulated and pre-specified in the 

description of the alternative and fully 

analyzed, then the action may be 

adjusted during implementation 

without the need for further analysis. 

Adaptive management includes a 

monitoring component, approved 

adaptive actions that may be taken, and 

environmental effects analysis for the 

adaptive actions approved. 

(e) The level of detail and depth of 

impact analysis should normally be 

limited to the minimum needed to 

determine whether there would be 

significant environmental effects. 

(f) Bureaus may choose to provide 

additional detail and depth of analysis 

as appropriate in those environmental 

assessments prepared under paragraph 

46.300(b). 

(g) An environmental assessment 

must contain objective analyses that 

support conclusions concerning 

environmental impacts. 

§ 46.315 How to format an environmental 

assessment. 

(a) An environmental assessment may 

be prepared in any format useful to 

facilitate planning, decision-making, 

and appropriate public participation. 

(b) An environmental assessment may 

be accompanied by any other planning 

or decision-making document. The 

portion of the document that analyzes 

the environmental impacts of the 

proposal and alternatives must be 

clearly and separately identified and not 

spread throughout or interwoven into 

other sections of the document. 

§ 46.320 Adopting environmental 

assessments prepared by another agency, 

entity, or person. 

(a) A Responsible Official may adopt 

an environmental assessment prepared 

by another agency, entity, or person, 

including an applicant, if the 

Responsible Official: 

(1) Independently reviews the 

environmental assessment; and 

(2) Finds that the environmental 

assessment complies with this subpart 

and relevant provisions of the CEQ 

Regulations and with other program 

requirements. 

(b) When appropriate, the Responsible 

Official may augment the environmental 

assessment to be consistent with the 

bureau’s proposed action. 

(c) In adopting or augmenting the 

environmental assessment, the 

Responsible Official will cite the 

original environmental assessment. 

(d) The Responsible Official must 

ensure that its bureau’s public 

involvement requirements have been 

met before it adopts another agency’s 

environmental assessment. 

§ 46.325 Conclusion of the environmental 

assessment process. 

Upon review of the environmental 

assessment by the Responsible Official, 

the environmental assessment process 

concludes with one of the following: 

(1) A notice of intent to prepare an 

environmental impact statement; 

(2) A finding of no significant impact; 

or 

(3) A result that no further action is 

taken on the proposal. 

Subpart E—Environmental Impact 

Statements 

§ 46.400 Timing of environmental impact 

statement development. 

The bureau must prepare an 

environmental impact statement for 

each proposed major Federal action 

significantly affecting the quality of the 

human environment before making a 

decision on whether to proceed with the 

proposed action. 

§ 46.405 Remaining within page limits. 

To the extent possible, bureaus 

should use techniques such as 

incorporation of referenced documents 

into NEPA analysis (46.135) and tiering 

(46.140) in an effort to remain within 

the normal page limits stated in 40 CFR 

1502.7. 

§ 46.415 Environmental impact statement 

content, alternatives, circulation and filing 

requirements. 

The Responsible Official may use any 

environmental impact statement format 

and design as long as the statement is 

in accordance with 40 CFR 1502.10. 

(a) Contents. The environmental 

impact statement shall disclose: 

(1) A statement of the purpose and 

need for the action; 

(2) A description of the proposed 

action; 

(3) The environmental impact of the 

proposed action; 

(4) A brief description of the affected 

environment; 

(5) Any adverse environmental effects 

which cannot be avoided should the 

proposal be implemented; 

(6) Alternatives to the proposed 

action; 

(7) The relationship between local 

short-term uses of the human 

environment and the maintenance and 

enhancement of long-term productivity; 

(8) Any irreversible or irretrievable 

commitments of resources which would 

be involved in the proposed action 

should it be implemented; and 

(9) The process used to coordinate 

with other Federal agencies, State, tribal 

and local governments, and persons or 

organizations who may be interested or 

affected, and the results thereof. 

(b) Alternatives. The environmental 

impact statement shall document the 

examination of the range of alternatives 

(paragraph 46.420(c)). The range of 

alternatives includes those reasonable 

alternatives (paragraph 46.420(b)) that 

meet the purpose and need of the 

proposed action, and address one or 

more significant issues (40 CFR 

1501.7(a)(2–3)) related to the proposed 

action. Since an alternative may be 

developed to address more than one 

significant issue, no specific number of 

alternatives is required or prescribed. In 

addition to the requirements in 40 CFR 

1502.14, the Responsible Official has an 

option to use the following procedures 

to develop and analyze alternatives. 

(1) The analysis of the effects of the 

no-action alternative may be 

documented by contrasting the current 

condition and expected future condition 

should the proposed action not be 

undertaken with the impacts of the 

proposed action and any reasonable 

alternatives. 

(2) The Responsible Official may 

collaborate with those persons or 

organization that may be interested or 

affected to modify a proposed action 

and alternative(s) under consideration 

prior to issuing a draft environmental 

impact statement. In such cases the 

Responsible Official may consider these 


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modifications as alternatives 

considered. Before engaging in any 

collaborative processes, the Responsible 

Official must consider the Federal 

Advisory Committee Act (FACA) 

implications of such processes. 

(3) A proposed action or alternative(s) 

may include adaptive management 

strategies allowing for adjustment of the 

action during implementation. If the 

adjustments to an action are clearly 

articulated and pre-specified in the 

description of the alternative and fully 

analyzed, then the action may be 

adjusted during implementation 

without the need for further analysis. 

Adaptive management includes a 

monitoring component, approved 

adaptive actions that may be taken, and 

environmental effects analysis for the 

adaptive actions approved. 

(c) Circulating and filing draft and 

final environmental impact statements. 

(1) The draft and final environmental 

impact statements shall be filed with the 

Environmental Protection Agency’s 

Office of Federal Activities in 

Washington, DC (40 CFR 1506.9). 

(2) Requirements at 40 CFR 1506.9 

‘‘Filing requirements,’’ 40 CFR 1506.10 

‘‘Timing of agency action,’’ 40 CFR 

1502.9 ‘‘Draft, final, and supplemental 

statements,’’ and 40 CFR 1502.19 

‘‘Circulation of the environmental 

impact statement’’ shall only apply to 

draft, final, and supplemental 

environmental impact statements that 

are filed with EPA. 

§ 46.420 Terms used in an environmental 

impact statement. 

The following terms are commonly 

used to describe concepts or activities in 

an environmental impact statement: 

(a) Statement of purpose and need. In 

accordance with 40 CFR 1502.13, the 

statement of purpose and need briefly 

indicates the underlying purpose and 

need to which the bureau is responding. 

(1) In some instances it may be 

appropriate for the bureau to describe 

its ‘‘purpose’’ and its ‘‘need’’ as distinct 

aspects. The ‘‘need’’ for the action may 

be described as the underlying problem 

or opportunity to which the agency is 

responding with the action. The 

‘‘purpose’’ may refer to the goal or 

objective that the bureau is trying to 

achieve, and should be stated to the 

extent possible, in terms of desired 

outcomes. 

(2) When a bureau is asked to approve 

an application or permit, the bureau 

should consider the needs and goals of 

the parties involved in the application 

or permit as well as the public interest. 

The needs and goals of the parties 

involved in the application or permit 

may be described as background 

information. However, this description 

must not be confused with the bureau’s 

purpose and need for action. It is the 

bureau’s purpose and need for action 

that will determine the range of 

alternatives and provide a basis for the 

selection of an alternative in a decision. 

(b) Reasonable alternatives. In 

addition to the requirements of 40 CFR 

1502.14, this term includes alternatives 

that are technically and economically 

practical or feasible and meet the 

purpose and need of the proposed 

action. 

(c) Range of alternatives. This term 

includes all reasonable alternatives, or 

when there are potentially a very large 

number of alternatives then a reasonable 

number of examples covering the full 

spectrum of reasonable alternatives, 

each of which must be rigorously 

explored and objectively evaluated, as 

well as those other alternatives that are 

eliminated from detailed study with a 

brief discussion of the reasons for 

eliminating them. 40 CFR 1502.14. The 

Responsible Official must not consider 

alternatives beyond the range of 

alternatives discussed in the relevant 

environmental documents, but may 

select elements from several alternatives 

discussed. Moreover, the Responsible 

Official must, in fact, consider all the 

alternatives discussed in an 

environmental impact statement. 40 

CFR 1505.1 (e). 

(d) Preferred alternative. This term 

refers to the alternative which the 

bureau believes would best accomplish 

the purpose and need of the proposed 

action while fulfilling its statutory 

mission and responsibilities, giving 

consideration to economic, 

environmental, technical, and other 

factors. It may or may not be the same 

as the bureau’s proposed action, the 

non-Federal entity’s proposal or the 

environmentally preferable alternative. 

§ 46.425 Identification of the preferred 

alternative in an environmental impact 

statement. 

(a) Unless another law prohibits the 

expression of a preference, the draft 

environmental impact statement should 

identify the bureau’s preferred 

alternative or alternatives, if one or 

more exists. 

(b) Unless another law prohibits the 

expression of a preference, the final 

environmental impact statement must 

identify the bureau’s preferred 

alternative. 

§ 46.430 Environmental review and 

consultation requirements. 

(a) Any environmental impact 

statement that also addresses other 

environmental review and consultation 

requirements must clearly identify and 

discuss all the associated analyses, 

studies, or surveys relied upon by the 

bureau as a part of that review and 

consultation. The environmental impact 

statement must include these associated 

analyses, studies, or surveys, either in 

the text or in an appendix or indicate 

where such analysis, studies or surveys 

may be readily accessed by the public. 

(b) The draft environmental impact 

statement must list all Federal permits, 

licenses, or approvals that must be 

obtained to implement the proposal. 

The environmental analyses for these 

related permits, licenses, and approvals 

should be integrated and performed 

concurrently. The bureau, however, 

need not unreasonably delay its NEPA 

analysis in order to integrate another 

agency’s analyses. The bureau may 

complete the NEPA analysis before all 

approvals by other agencies are in place. 

§ 46.435 Inviting comments. 

(a) A bureau must seek comment from 

the public as part of the Notice of Intent 

to prepare an environmental impact 

statement and notice of availability for 

a draft environmental impact statement; 

(b) In addition to paragraph (a) of this 

section, a bureau must request 

comments from: 

(1) Federal agencies; 

(2) State agencies through procedures 

established by the Governor of such 

state under EO 12372; 

(3) Local governments and agencies, 

to the extent that the proposed action 

affects their jurisdictions; and 

(4) The applicant, if any, and persons 

or organizations who may be interested 

or affected. 

(c) The bureau must request 

comments from the tribal governments, 

unless the tribal governments have 

designated an alternate review process, 

when the proposed action may affect the 

environment of either: 

(1) Indian trust or restricted land; or 

(2) Other Indian trust resources, trust 

assets, or tribal health and safety. 

(d) A bureau does not need to delay 

preparation and issuance of a final 

environmental impact statement when 

any Federal, State, and local agencies, or 

tribal governments from which 

comments must be obtained or 

requested do not comment within the 

prescribed time period. 

§ 46.440 Eliminating duplication with State 

and local procedures. 

A bureau must incorporate in its 

directives provisions allowing a State 

agency to jointly prepare an 

environmental impact statement, to the 

extent provided in 40 CFR 1506.2. 


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Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations 61323 

§ 46.445 Preparing a legislative 

environmental impact statement. 

When required under 40 CFR 1506.8, 

the Department must ensure that a 

legislative environmental impact 

statement is included as a part of the 

formal transmittal of a legislative 

proposal to the Congress. 

§ 46.450 Identifying the environmentally 

preferable alternative(s). 

In accordance with the requirements 

of 40 CFR 1505.2, a bureau must 

identify the environmentally preferable 

alternative(s) in the record of decision. 

It is not necessary that the 

environmentally preferable 

alternative(s) be selected in the record of 

decision. 

[FR Doc. E8–23474 Filed 10–14–08; 8:45 am] 

BILLING CODE 4310–RG–P 


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