[Federal Register Volume 73, Number 200 (Wednesday, October 15, 2008)]
[Rules and Regulations]
[Pages 61292-61323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23474]



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Part IV





Department of the Interior





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Office of the Secretary



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43 CFR Part 46



Implementation of the National Environmental Policy Act (NEPA) of 1969; 
Final Rule

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

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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.

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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. E-
mail: <a href="/cdn-cgi/l/email-protection#03756a69626a5c71626a436a6c702d676c6a2d646c75"><span class="__cf_email__" data-cfemail="5c2a35363d35032e3d351c35332f72383335723b332a">[email protected]</span></a>.

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:
    <bullet> Clarifies which actions are subject to NEPA section 102(2) 
by locating all relevant CEQ guidance in one place, along with 
supplementary Department procedures.
    <bullet> 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.
    <bullet> 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.
    <bullet> Clarifies that the Department has discretion to determine, 
on a case-by-case basis, how to involve the public in the preparation 
of EAs.
    <bullet> Highlights that adaptive management strategies may be 
incorporated into alternatives, including the proposed action.
    <bullet> 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 
bureau-specific 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, e-mails, 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

[[Page 61293]]

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 decision-making 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

[[Page 61296]]

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

[[Page 61297]]

involved in the agency review process, and have their interests 
acknowledged in a meaningful way, and achieve a win-win 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 consensus-based 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.

[[Page 61298]]

    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

[[Page 61299]]

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 non-monetized 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 non-monetized 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 ``non-monetized 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,

[[Page 61300]]

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 decision-making 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

[[Page 61301]]

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

[[Page 61302]]

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-to-
government 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 bureau-specific 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.

[[Page 61303]]

    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 Department-specific 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, Sec.  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 Sec.  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 Sec.  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 Sec.  
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-by-case.'' 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.

[[Page 61304]]

    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-by-case.''
    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 bureau-specific 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

[[Page 61305]]

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

[[Page 61306]]

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 Sec.  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 
decision-making 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

[[Page 61307]]

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 case-by-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

[[Page 61308]]

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-to-government 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 
decision-making 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.

[[Page 61309]]

    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

[[Page 61310]]

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

[[Page 61311]]

``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

[[Page 61312]]

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-to-government 
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

[[Page 61313]]

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 Department- and 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.

[[Page 61314]]

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.

0
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


Sec.  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.


Sec.  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

[[Page 61315]]

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.


Sec.  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

[[Page 61316]]

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


Sec.  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).


Sec.  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.


Sec.  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 consensus-based 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 
consensus-based 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).


Sec.  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.


Sec.  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.


Sec.  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 non-monetized costs when 
appropriate, such as social costs, delays, opportunity costs, and non-
fulfillment or non-timely fulfillment of statutory mandates.


Sec.  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

[[Page 61317]]

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.


Sec.  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.


Sec.  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.''


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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

[[Page 61318]]

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.


Sec.  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


Sec.  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.


Sec.  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.


Sec.  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 short-term 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,

[[Page 61319]]

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-by-case.
    (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.


Sec.  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).


Sec.  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.


Sec.  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

[[Page 61320]]

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.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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 decision-making;
    (2) Further the purposes of NEPA when no environmental impact 
statement is necessary; or
    (3) Facilitate environmental impact statement preparation.


Sec.  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).

[[Page 61321]]

    (d) Bureaus may allow cooperating agencies (as defined in Sec.  
46.225) to participate in developing environmental assessments.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  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.


Sec.  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

[[Page 61322]]

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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.

[[Page 61323]]

Sec.  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.


Sec.  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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