Notice of Final Changes to Procedures, 32840-32844 [05-11129]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 107 (Monday, June 6, 2005)]
[Notices]
[Pages 32840-32844]
From the Federal Register Online via the Government Printing 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: https://
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: vijai_rai@ios.doi.gov. 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

[[Page 32841]]

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

[[Page 32842]]

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

[[Page 32843]]

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

[[Page 32844]]

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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