[Federal Register Volume 75, Number 209 (Friday, October 29, 2010)]
[Notices]
[Pages 66774-66776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27356]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


National Environmental Policy Act (NEPA) Implementing Procedures

AGENCY: Office of the Secretary, Interior.

ACTION: Notice of Change to the Departmental Manual.

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SUMMARY: The U.S. Department of the Interior (DOI) has amended its 
Departmental Manual (DM) by adding a new chapter to provide 
supplementary requirements for implementing the National Environmental 
Policy Act (NEPA) within the Department's Office

[[Page 66775]]

of Native Hawaiian Relations. The change to the DM was published in the 
Federal Register on December 3, 2009. No comments were received on the 
DM change. By publishing these changes in the Federal Register, DOI 
intends to promote greater transparency and accountability to the 
public and enhance cooperative conservation.

DATES: The Departmental Manual change will take effect on November 29, 
2010.

FOR FURTHER INFORMATION CONTACT: Ka'i'ini Kaloi, Director; Office of 
Native Hawaiian Relations; 1849 C Street, NW.; Washington, DC 20240. 
Telephone: 202-513-0712. E-mail: <a href="/cdn-cgi/l/email-protection#dcb7bdb5b5b2b5f2b7bdb0b3b59cb5b3aff2b8b3b5f2bbb3aa"><span class="__cf_email__" data-cfemail="dbb0bab2b2b5b2f5b0bab7b4b29bb2b4a8f5bfb4b2f5bcb4ad">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Congress passed the Hawaiian Homes 
Commission Act (HHCA) in 1921, creating the Commission and designating 
approximately 200,000 acres available to rehabilitate the indigenous 
Hawaiian population by providing them with access to farm and homestead 
land. Under section 204(3) of the HHCA, ch. 42, 42 Stat. 110 (1921), 
all available lands were to become Hawaiian home lands under control of 
the Commission, provided that ``such lands should assume the status of 
the Hawaiian home lands until the Commission, with the approval of the 
Secretary of the Interior makes the selection and gives notice thereof 
to the Commissioner of Public Lands.'' 42 Stat. 110 (1921).
    Thirty-three years later, Congress passed the Act of June 18, 1954, 
ch. 319, 68 Stat. 262, which amended the HHCA, adding a new subsection 
204(4) ``to permit the [Commission] to exchange available lands as 
designated by the Act, for public land of equal value.'' H.R. Rep. No. 
1517, 83d Cong., 2d Sess. (1954); S. Rep. No. 1486, 83d Cong., 2d Sess. 
2 (1954). The new section 204(4), provided that ``the Commission may 
with the approval of the Governor (Governor approval no longer 
required) and the Secretary of the Interior, in purposes of this Act, 
exchange title to available lands for land publicly owned, of equal 
value.'' 68 Stat. 262 (1954). Hence, it was clear Congress intended the 
Commission would not have the authority to consummate any land exchange 
without secretarial approval.
    After Hawaii was admitted to the Union in 1959, the responsibility 
for the administration of the Hawaiian home lands was transferred to 
the State of Hawaii. Section 4 of the Hawaiian Admission Act, Public 
Law 86-3, 73 Stat. 5 (1959), 48 U.S.C. nt. Prec. Sec.  491 (1982) 
provides: ``[a]s a compact with the United States relating to the 
management and disposition of the Hawaiian Home lands, the Hawaiian 
Homes Commission Act, 1920, as amended, shall be adopted as a provision 
of the Constitution of such State.'' Thus, secretarial approval 
remained necessary before the Commission was empowered to conduct land 
exchanges.
    In 1995, Congress again iterated its intent to have the Secretary 
provide oversight of land exchanges occurring under the auspices of the 
HHCA. The Hawaiian Home Lands Recovery Act of 1995 (HHLRA), Public Law 
104-42, 109 Stat. 357, gave oversight responsibilities to the Secretary 
of the Department of Interior to ensure that real property under the 
HHCA is, among other things, administered in a manner which best serves 
the interests of the beneficiaries.
    The words of section 204(3) of the HHCA make clear that a land 
exchange is not valid until it has been approved by the Secretary (or 
his designee), but does not suggest that the Secretary is required to 
approve every land exchange placed before him. Indeed, the Secretary 
must at a minimum, satisfy himself that either of the purposes set 
forth in section 204(3) is met (i.e., that the exchange would 
consolidate Homes Commission holdings, or that it would help to 
``better effectuate'' the purposes of the Homes Commission Act), and 
that the lands proposed for exchange are ``of an equal value''. Each of 
these elements requires the exercise of judgment, most particularly the 
element of equal value for land valuations can be highly subjective and 
land appraisals are understood to represent an art, not a science. 
Because the discharge of the responsibility placed on the Secretary is 
discretionary and not ministerial, approval of a land exchange is 
subject to NEPA. In general, section 102(2)(C) of NEPA, 42 U.S. C. 
4332(2)(C) provides that a ``detailed statement'' must be prepared 
whenever a major Federal action will have a significant impact on the 
quality of the human environment. Accordingly, the new chapter to 
provide supplementary requirements for implementing NEPA within the 
Department's Office of Native Hawaiian Relations includes: A definition 
of the Office of Native Hawaiian Relations' NEPA responsibilities; 
guidance to the Department of Hawaiian Home Lands as to when NEPA is 
triggered and who maintains responsibility for compliance; guidance as 
to when an action would normally require the development of an 
Environmental Impact Statement (EIS) or Environmental Assessment (EA); 
and guidance as to when an action can be categorically excluded under 
NEPA.

Compliance Statements

1. Regulatory Planning and Review (E.O. 12866)

    This document is not a significant policy change and the Office of 
Management and Budget has not reviewed this Departmental Manual change 
under Executive Order 12866.
    We have made the assessments required by E.O. 12866 and have 
determined that this departmental policy: (1) Will not have an effect 
of $100 million or more on the economy. It will not adversely affect in 
a material way the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or Tribal 
governments or communities.
    (2) Will not create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency.
    (3) Does not alter the budgetary effects of entitlements, grants, 
user fees, or loan programs or the rights or obligations of their 
recipients.
    (4) Does not raise novel legal or policy issues.

2. Regulatory Flexibility Act

    The Department of the Interior 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.).

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This departmental manual change is not a major rule under 5 U.S.C. 
804(2), the Small Business Regulatory Enforcement Fairness Act. OMB 
made the determination that this departmental manual change:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act

    This departmental manual change does not impose an unfunded mandate 
on State, local, or Tribal governments or the private sector of more 
than $100 million per year. A statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

[[Page 66776]]

5. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this departmental 
manual change does not have significant takings implications. A takings 
implication assessment is not required.

6. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this departmental 
manual change does not have sufficient Federalism implications to 
warrant the preparation of a Federalism summary impact statement. A 
Federalism summary impact statement is not required.

7. Consultation with Indian Tribes (E.O. 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
departmental manual change and determined that it has no potential 
effects on Federally recognized Indian Tribes since Native Hawaiians 
are not a Federally recognized Indian Tribe.

8. 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).

9. Paperwork Reduction Act

    This change to the U.S. Department of the Interior Departmental 
Manual does not contain information collection requirements, and a 
submission under the Paperwork Reduction Act (PRA) is not required.

Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
    For the reasons stated in the preamble, the Department of the 
Interior has amended its Departmental Manual by adding a new chapter to 
provide supplementary requirements for implementing provisions of 516 
DM 1 through 4 within the Department's Office of Native Hawaiian 
Relations, as set forth below:

PART 516: NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

Chapter 7: MANAGING THE NEPA PROCESS--OFFICE OF NATIVE HAWAIIAN 
RELATIONS

    7.1 Purpose. This Chapter provides supplementary requirements for 
implementing provisions of the Department's NEPA regulations at 43 CFR 
part 46 and the provisions of 516 DM 1 through 3 [previously 516 DM 1 
through 6] within the Department's Office of Native Hawaiian Relations.
    7.2 NEPA Responsibility.
    A. The Director of the Office of Native Hawaiian Relations (OHR) is 
responsible for NEPA compliance for OHR activities.
    B. The Director of the Office of Native Hawaiian Relations, in 
conjunction with the Office of Environmental Policy Compliance, 
provides direction and oversight for environmental activities, 
including the implementation of NEPA.
    C. The OHR may request the Department of Hawaiian Home Lands (DHHL) 
to assist in preparing NEPA documentation for a proposed action 
submitted by the Secretary.
    7.3 Guidance to DHHL.
    A. Actions Proposed by the Department of Hawaiian Home Lands 
requiring OHR or other Federal approval.
    (1) OHR retains sole responsibility and discretion in all NEPA 
compliance matters related to the proposed action, although the 
Director of OHR may request the DHHL to assist in preparing all NEPA 
documentation.
    B. Actions proposed by the Department of Hawaiian Home Lands not 
requiring Federal approval, funding, or official actions, are not 
subject to NEPA requirements.
    7.4 Actions Normally Requiring an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS) if these activities are connected 
to a land exchange requiring the Secretary's approval.
    A. The following actions require preparation of an EA or EIS:
    (1) Actions not categorically excluded; or
    (2) Actions involving extraordinary circumstances as provided in 43 
CFR Part 46.215.
    B. Actions not categorically excluded or involving extraordinary 
circumstances as provided in 43 CFR Part 46.210, will require an EA 
when:
    (1) An EA will be used in deciding whether a finding of no 
significant impact is appropriate, or whether an EIS is required prior 
to implementing any action.
    (2) The action is not being addressed by an EIS.
    C. If an EA is prepared, it will comply with the requirements of 43 
CFR part 46 subpart D.
    D. The following actions normally require the preparation of an 
Environmental Impact Statement (EIS):
    (1) Proposed water development projects which would inundate more 
than 1,000 acres of land, or store more than 30,000 acre-feet of water, 
or irrigate more than 5,000 acres of undeveloped land.
    (2) Construction of a treatment, storage or disposal facility for 
hazardous waste or toxic substances.
    (3) Construction of a solid waste facility.
    E. If an EIS is prepared, it will comply with the requirements of 
43 CFR part 46 subpart E.
    7.5 Categorical Exclusion. In addition to the actions listed in the 
Departmental categorical exclusions specified in section 43 CFR 46.210, 
the following action is categorically excluded unless any of the 
extraordinary circumstances in section 43 CFR 46.215 apply, thus 
requiring an EA or an EIS. This activity is a single, independent 
action not associated with larger, existing or proposed complexes or 
facilities.
    A. Approval of conveyances, exchanges and other transfers of land 
or interests in land between DHHL and an agency of the State of Hawaii 
or a Federal agency, where no change in the land use is planned.

[FR Doc. 2010-27356 Filed 10-28-10; 8:45 am]
BILLING CODE 4310-RG-P


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