[Federal Register Volume 70, Number 107 (Monday, June 6, 2005)]
[Notices]
[Pages 32840-32844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11129]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
Notice of Final Changes to Procedures
AGENCY: Department of the Interior.
ACTION: Notice of final changes to procedures.
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SUMMARY: These changes to procedures modify the Departmental Manual at
516 DM 2.5, Cooperating Agencies (40 CFR 1501.6). These procedures
clarify the responsibility of managers to offer this status to
qualified agencies and governments, and to respond to requests for this
status. These procedures also make clear the role of cooperating
agencies in the implementation of the Department's National
Environmental Policy Act (NEPA) compliance process. With this
publication of these procedures they will be added to the Electronic
Library of Interior Policies (ELIPS). ELIPS is located at: http://elips.doi.gov/.
The changes to the procedures are necessary to emphasize the
importance of working with Federal and State agencies and Tribal and
local governments through cooperating agency relationships in preparing
environmental impact statements under NEPA.
FOR FURTHER INFORMATION CONTACT: 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: [email protected]. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION: This section provides general information,
background, a summary of comments and responses, and procedural
requirements.
General Information: In an Executive Order (EO 13352) on
Facilitation of Cooperative Conservation, the President seeks to ensure
that certain Federal agencies, including the Department of the
Interior, implement laws relating to the environment and natural
resources in a manner that promotes cooperative conservation. The EO
emphasizes appropriate local participation in Federal decision-making,
in accordance with agencies' respective agency missions, policies, and
regulations.
In an effort to carry out the intent of EO 13352, the Department of
the Interior is strengthening its National Environmental Policy Act
(NEPA) implementing procedures which appear in part 516 of the
Departmental Manual (DM) at 516 DM 2.5 on Cooperating Agencies.
Consistent with both EO 13352 and the Secretary of the Interior's
``4C's'' policy, that is, Conservation through Communication,
Consultation, and Cooperation, these revised
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procedures will reinforce existing bureau procedures that encourage the
types of cooperation envisioned in the EO 13352. The Department of the
Interior has long promoted, and successfully implemented, partnerships
with States, Tribes, local governments, and private landowners to
advance conservation. Such partnerships serve to preserve open space,
restore habitat for wildlife, and protect endangered species, among
other things.
The changes provide Department-wide direction to proactively engage
States, Tribes and local governments in the development of all
environmental impact statements.
We also wish to clarify here the invitation requirement for scoping
at 516 DM 2.6A. There the manual provides that the invitation
requirement in Section 40 CFR 1501.7(a)(1) may be satisfied by
including such an invitation in the Notice of Intent. Under the revised
procedures for cooperating agencies, bureaus do not need to invite
eligible governmental entities separately for purposes of scoping as
long as prior to scoping they have complied fully with the provisions
at 516 DM 2.5D.
In accordance with 1507.3 of the CEQ Regulations, this Department
submitted these final revisions to CEQ for their review and approval.
In a letter, CEQ approved these procedures for final publication. The
remaining sections of supplementary information will provide
background, a synopsis of comments and responses, and procedural
requirements. Following the supplementary information is the text of
the final procedures.
Background: On March 18, 2005, the Department published proposed
changes to modify the Departmental Manual at 516 DM 2.5, Cooperating
Agencies (40 CFR 1501.6) in the Federal Register (70 FR 13203) and
requested public comments. The purpose of the proposed changes to the
Department's Manual is to provide further guidance to implement the
President's Executive Order (EO 13352) on Facilitation of Cooperative
Conservation.
All comments received to date have been read, analyzed, and
considered during the revision process. No changes have been made to
the proposed procedures as published on March 18, 2005. The procedures
have been circulated in the Department for final clearance by each
assistant secretary. In some cases, responses to public comments have
been further revised during the final, internal review and clearance
process. No additional changes have been made to the proposed
procedures as published as a part of the final, internal review and
clearance process.
Comments and Responses: The Department received, reviewed, and
considered twelve items of correspondence from the public on the March
18, 2005, Federal Register notice. In general, the comments support the
proposed changes to procedures at 516 DM 2.5. Some comments focused on
specific concerns regarding implementation of the proposed procedures
and expressed the need for further clarification of certain points and
the definition of terms to eliminate any ambiguities. A discussion of
these issues follows and is presented topically with similar comments
grouped together for ease of analysis and discussion.
One commenter expressed concern that the current proposed
procedures do not contain adequate safeguards to prevent delays. Such
delays could result from a lack of timeframes for governmental entities
to respond to the invitation to participate or, after declining an
opportunity to participate, to change their position and later seek to
participate. The commenter seeks to have timeframes included in the
procedures to ensure against delays and suggests further that the
Department should take this opportunity to make improvements to the
NEPA process by adopting fully all the recommendations of the National
Academy of Sciences (NAS) regarding improvements to NEPA contained in
its report on Hardrock Mining on Federal Lands.
The Department believes that timeframes and milestones are not
applicable. Milestones and timeframes are generally included in the
administrative record of an environmental review process and therefore
provide a safeguard to prevent unnecessary and unreasonable delay.
Alternatively, timeframes for compliance can be incorporated into the
documents offering the opportunity to become a cooperator or, in the
case of production milestones, to include timeliness requirements in a
Memorandum of Understanding (MOU) that is prepared when Cooperating
Agency status is established. The Department believes these procedures
improve interagency coordination as recommended in the NAS report.
However, other recommendations in the NAS report are beyond the scope
of these procedural changes.
Three commenters noted that the proposed changes to the procedures
take the form of guidance not regulation. The concern is that guidance
can be changed by future Secretaries of the Interior; moreover,
guidance instead of regulation, leaves the policy more vulnerable and
less enforceable than it would be if it were a regulation. The
commenters cite the recently completed Bureau of Land Management (BLM)
rulemaking on the same subject as a reason that the Department should
do likewise. One commenter has suggested that the Department needs to
provide for more permanency to the process through rulemaking. The
stated reasons are that local governments, once they are assured of the
ability to participate, will plan accordingly. State agencies, once
they know their participation is needed and wanted, will develop the
necessary expertise to participate in the process. State agencies must
know they will be treated as partners in the process before they commit
the resources to develop this partnership. Secondly, a process made
permanent through rulemaking would demonstrate to the Department's
employees that State and local governments are expected to participate
and become cooperators in the process. Local input, the commenter
asserts, is currently discouraged instead of encouraged. Establishing a
rule would convey a greater level of importance to the field offices.
BLM's planning regulations cover more than NEPA compliance and
reflect land management requirements specified under Statutes such as
the Federal Land Policy Management Act and others. However, unlike the
BLM, the Department has not issued a specific planning rule. The
implementing regulations under the provisions of NEPA are issued by the
Council on Environmental Quality (CEQ), and the Department issues
guidance and procedures under those regulations. Like any revision to a
regulation, Departmental guidance and procedures involving NEPA are
subject to review and comment by the public and the CEQ. Therefore, any
future revision to Departmental NEPA guidance and procedures will also
undergo public review and comment.
The same commenters also seek a better definition of the level of
``collaboration'' that is likely to be applied or which may occur in
the field. It may be helpful, they claim, for the guidance to further
define the terms ``collaboration'' and ``the fullest extent
practicable,'' to ensure that consistent expectations are achieved for
all parties throughout the process.
To more precisely define these terms would serve only to place
arbitrary limits, constraints, and requirements on a process that, by
its very nature, is designed to be a consultative, consensus building,
and cooperative endeavor.
The one commenter asserts that proposed subsection D needs
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clarification because it appears to be inconsistent. The commenter
questions the rationale for the Federal agency to approve or deny a
request to become a cooperating agency and states that if the Federal
agency is required to invite qualified State, Tribal, and local
governments to participate as cooperating agencies, there is no need
for the qualified agency to have to make a request to participate.
A review of the entire subsection D reveals no inconsistency among
the statements. The Department believes that the lead Federal agency
should be able to deny cooperating agency status when the requester
does not have jurisdiction by law or special expertise as specified in
the CEQ's regulations implementing NEPA. However, to ensure that the
process is open and transparent, the Federal agency is required to
respond in writing to the requestor and provide a summary of the
request and the reasons for such denial within the environmental impact
statement. In addition, this section provides a mechanism to a
prospective qualified agency to request to become a cooperating agency
if for any reason the Federal agency did not invite the qualified
agency to become a cooperating agency.
A commenter recommended that the proposed procedures be applied to
Environmental Assessments (EA), in addition to Environmental Impact
Statements (EIS). As noted by the commenter, this recommendation is
related to the CEQ regulations implementing NEPA at 40 CFR 1501.6 which
refer to cooperating agencies in conjunction with EISs.
Although the CEQ regulations do not specifically limit the
establishment of cooperating agency relationships to the preparation of
EISs, the Department (and NEPA practitioners in general) has generally
not employed cooperating agencies in the preparation of EAs.
Considerable thought was given to requiring the Department's bureaus to
extend the cooperating agency invitation to appropriate governmental
entities for the preparation of EAs when the proposed changes to the
procedures at 516 DM 2.5 were being formulated. However, the number of
EAs prepared annually by the Department's bureaus is huge (several
thousands). The process of establishing cooperating agencies for the
many EAs that are prepared would unduly encumber that phase of the NEPA
process for all affected stakeholders. Also, most EAs are prepared for
actions that may not be expected to have significant environmental
impacts and usually result in the issuance of a finding of no
significant impact (FONSI). To require Federal agencies to invite
various entities to become cooperating agencies on proposed actions
that have no significant impact would become a major impediment to most
agency actions and would make the NEPA process highly inefficient and
ineffective. This procedure is directed to ensure that Federal agencies
invite all qualified government entities to become cooperating agencies
with respect to any proposed action that would have significant impact
on the quality of the human environment.
One commenter expressed the concern that the proposed procedures
would allow bureaus to reject a request by a cooperating agency to
participate in the preparation of an EIS. The commenter suggested that
if such a request to be a cooperating agency were rejected, it might be
prudent to have provisions that allow for an appeal of that decision.
Also, the power to reject such requests should be narrow and limited.
Appeal rights are outside the scope of the proposed procedures. The
objective of strengthening the requirement for bureaus to extend the
cooperating agency invitation to a broad range of potentially affected
governmental entities is to provide a more inclusive and collaborative
NEPA framework and environmental review process. It is the intent that
rejections of requests for cooperating agency status would be few,
limited, and only for good reason.
One individual commenter expressed the concern that allowing non-
Federal entities to have such a strong participatory role in the
preparation of NEPA documents carries the risk that the analysis is
likely to be biased and the integrity of the document compromised. The
commenter is concerned that the process will reduce the public's trust
in the information and analysis in the document.
The Department has NEPA compliance oversight responsibility and is
ultimately accountable for the integrity, scientific accuracy and
reliability of the analysis in its EIS. The decision to invite, and
subsequently grant, another governmental entity a role in the NEPA
process as a cooperating agency does not alter the role and
responsibility of the lead agency to ensure that the information and
the scientific analysis contained in the EIS are valid and
uncompromised.
Another commenter suggests that the procedural change is an attempt
by the agency to make secret of what goes on at this Department.
The Department takes a different view that this procedural change
will make the process more open and transparent.
Procedural Requirements: The following list of procedural
requirements has been assembled and addressed to contribute to this
open review process. Today's publication is a notice of final, internal
Departmental action and not a rulemaking. However, we have addressed
the various procedural requirements that are generally applicable to
proposed and final rulemaking to show how they would affect this notice
if it were a rulemaking.
Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993) it has
been determined that this action is the implementation of policy and
procedures applicable only to the Department of the Interior and not a
significant regulatory action. These policies and procedures would not
impose a compliance burden on the general economy.
Administrative Procedures Act
This document is not subject to prior notice and opportunity to
comment because it is a general statement of policy and procedure [(5
U.S.C. 553(b) (A)]. However, notice and opportunity to comment is
required by the CEQ Regulations [40 CFR 1507.3(a)].
Regulatory Flexibility Act
This document is not subject to notice and comment under the
Administrative Procedures Act, and, therefore, is not subject to the
analytical requirements of 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.
Small Business Regulatory Enforcement Fairness Act
These policies and procedures do not comprise a major rule under 5
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.
The document will not have an annual effect on the economy of $100
million or more and is expected to have no significant economic
impacts. Further, it will not cause a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions and will impose no
additional regulatory restraints in addition to those already in
operation. Finally, the document does not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability
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of United States based enterprises to compete with foreign based
enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.), this document will not significantly or uniquely affect small
governments. A Small Government Agency Plan is not required. The
document does not require any additional management responsibilities.
Further, this document will not produce a Federal mandate of $100
million or greater in any year, that is, it is not a significant
regulatory action under the Unfunded Mandates Reform Act. These
policies and procedures are not expected to have significant economic
impacts nor will they impose any unfunded mandates on other Federal,
State, or local government agencies to carry out specific activities.
Federalism
In accordance with Executive Order 13132, this document does not
have significant federalism effects; and, therefore, a federalism
assessment is not required. The policies and procedures will not have
substantial direct effects on the States, on the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. However,
this policy will likely improve, and enhance, State and local
relationships with Federal agencies. No intrusion on State policy or
administration is expected, roles or responsibilities of Federal or
State governments will not change, and fiscal capacity will not be
substantially, directly affected. Therefore, the document does not have
significant effects or implications on federalism.
Paperwork Reduction Act
This document does not require information collection as defined
under the Paperwork Reduction Act. Therefore, this document does not
constitute a new information collection system requiring Office of
Management and Budget (OMB) approval under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
National Environmental Policy Act
The Council on Environmental Quality 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 internal 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.
Essential Fish Habitat
We have analyzed this document in accordance with section 305(b) of
the Magnuson-Stevens Fishery Conservation and Management Act and
determined that issuance of this document will not affect the essential
fish habitat of Federally managed species; and, therefore, an essential
fish habitat consultation on this document is not required.
Consultation and Coordination With Indian Tribal Governments
In accordance with Executive Order 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.
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use
Executive Order 13211 of May 18, 2001, requires a Statement of
Energy Effects for significant energy actions. Significant energy
actions are actions normally published in the Federal Register that
lead to the promulgation of a final rule or regulation and may have any
adverse effects on energy supply, distribution, or use. We have
explained above that this document is an internal Departmental Manual
part which only affects how the Department conducts its business under
the National Environmental Policy Act. This manual part is not a
rulemaking; and, therefore, not subject to Executive Order 13211.
Actions To Expedite Energy-Related Projects
Executive Order 13212 of May 18, 2001, requires agencies to
expedite energy-related projects by streamlining internal processes
while maintaining safety, public health, and environmental protections.
Today's publication is in conformance with this requirement as it
promotes early collaboration and cooperation amongst agencies with
jurisdiction or expertise in activities requiring an environmental
impact study (including some energy-related projects).
Government Actions and Interference With Constitutionally Protected
Property Rights
In accordance with Executive Order 12630 (March 15, 1988) and Part
318 of the Departmental Manual, the Department has reviewed today's
notice to determine whether it would interfere with constitutionally
protected property rights. Again, we believe that as internal
instructions to bureaus on the implementation of the National
Environmental Policy Act, this publication would not cause such
interference.
Authority: NEPA, the National Environmental Quality Improvement
Act of 1970, as amended (42 U.S.C. 4371 et seq.); E.O. 11514, March
5, 1970, as amended by E.O. 11991, May 24, 1977; and CEQ Regulations
40 CFR 1507.3
P. Lynn Scarlett,
Assistant Secretary for Policy, Management and Budget.
Department of the Interior
Departmental Manual
Effective Date:
Series: Environmental Quality.
Part 516: National Environmental Policy Act of 1969.
Chapter 2: Initiating the NEPA Process.
Originating Office: Office of Environmental Policy and
Compliance.
516 DM 2
2.5 Cooperating Agencies (40 CFR 1501.6 and 1508.5).
A. Upon the request of a bureau, the OEPC will assist bureaus in
determining cooperating agencies and coordinating requests from non-
Interior agencies.
B. Bureaus will inform the OEPC of any requests to become a
cooperating agency or any declinations to become a cooperating
agency pursuant to 40 CFR 1501.6(c).
C. Upon the request of the lead agency, 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,
shall be a cooperating agency. In addition, upon request of the lead
agency, any Federal agency that is qualified to participate in the
development of an environmental impact statement by virtue of its
specialized expertise, as defined in 40 CFR 1508.26, may be a
cooperating agency. Any non-Federal agency (State, Tribal, or local)
with similar qualifications may by agreement be a cooperating
agency. Bureaus will consult with the Solicitor's Office in cases
where such non-Federal agencies are also applicants before the
Department to determine relative lead/cooperating agency
responsibilities.
D. An agency meeting the requirements of 516 DM 2.5 C is defined
as an eligible governmental entity.
E. Bureaus will invite eligible governmental entities to
participate as cooperating agencies when the bureau is developing an
environmental impact statement in accordance with the requirements
of NEPA and the CEQ regulations. Bureaus will also consider any
requests by eligible governmental entities to participate as a
cooperating agency with
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respect to a particular environmental impact statement, and will
either accept or deny such requests. If such a request is denied,
bureaus will state in writing, within the environmental impact
statement, the reasons for such denial.
F. Throughout the development of the environmental impact
statement, the bureau will collaborate, to the fullest extent
practicable, with all cooperating agencies, concerning those issues
relating to their jurisdiction and/or special expertise.
Collaboration will be to:
(1) Identify issues to be addressed in the environmental impact
statement;
(2) arrange for the collection and/or assembly of necessary
resource, environmental, social, economic, and institutional data;
(3) analyze data;
(4) develop alternatives; (1) Evaluate alternatives and estimate
the effects of implementing each alternative; and
(6) carry out any other task necessary for the development of
the environmental impact statement.
G. Bureaus and eligible governmental entities are required to
express in a memorandum of understanding their respective roles,
assignment of issues, schedules, and staff commitments so that the
NEPA process remains on track and within the time schedule.
[FR Doc. 05-11129 Filed 6-3-05; 8:45 am]
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