Implementation of the National Environmental Policy Act (NEPA) of 1969, 126-140 [E7-25484]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 1 (Wednesday, January 2, 2008)]
[Proposed Rules]
[Pages 126-140]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25484]


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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: Proposed rule; request for comments.

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SUMMARY: The Department of the Interior (Department) proposes to amend 
its regulations by adding a new part to codify its NEPA procedures 
currently in the Departmental Manual (DM). This proposed regulation 
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. By converting the 
Departmental NEPA procedures from the DM to new regulations that are 
consistent with NEPA and the CEQ regulations, the Department intends to 
promote greater transparency in the NEPA process for the public and 
enhance cooperative conservation.

DATES: Submit comments by March 3, 2008.

ADDRESSES: You may submit comments on the rulemaking by any of the 
following methods. Please use the regulation identification number 
(RIN) 1090-AA95 as an identifier in your message. See also ``Public 
availability of comments'' under Procedural Requirements below.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: doi_nepa@contentanalysisgroup.com and use the RIN 
1090-AA95 in the subject line.
     Fax: 801-397-2601. Identify with RIN 1090-AA95.
     Mail comments to the Department of the Interior, NEPA 
Proposed Rule, C/O Bear West, 1584 S 500 W Ste 201, Woods Cross, UT 
84010. Please reference RIN 1090-AA95 in your comments and also include 
your name and return address.

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: vijai_rai@ios.doi.gov.

SUPPLEMENTARY INFORMATION: 

Background and Need for the Proposed Rule

    CEQ regulations at 40 Code of Federal Regulations (CFR) 1507.3 
require Federal agencies to adopt procedures as necessary to supplement 
CEQ's regulations implementing NEPA and to consult with CEQ during 
their development and prior to publication in the Federal Register. The 
regulation further encourages agencies to publish agency explanatory 
guidance for CEQ's regulations and agency procedures.
    The Department's procedures implementing NEPA as required by CEQ 
have been contained in chapter 516 of the DM. We revised these 
procedures and published the revisions in the Federal Register on March 
8, 2004 (69 FR 10866) and June 6, 2005 (70 FR 32840). We have now 
decided to publish the procedures as rules to be codified in the CFR.
    This proposed regulation supplements the CEQ regulations and must 
be used in conjunction with those regulations. The bureaus of the 
Department are required to use this regulation when meeting their 
responsibilities under NEPA.
    This proposed regulation meets the intent of 40 CFR 1507.3 by 
placing agency-implementing procedures in a regulatory framework. We 
believe placing agency explanatory guidance (as distinguished from 
agency implementing procedures) into the DM, Environmental Statement 
Memoranda (ESM), which are Departmental guidance documents, and 
bureaus' NEPA handbooks, will facilitate quicker agency responses to 
new ideas and information, procedural interpretations, training needs, 
and editorial changes.

Reasons for an Improved Environmental Analysis Process

    This proposed regulation is the culmination and natural progression 
of work begun in 2002 to improve our NEPA compliance process. Since the 
Department last updated its NEPA procedures, CEQ has issued guidance 
the Department wishes to incorporate in its regulations. The concepts 
described below are currently used, but there are no explicit 
provisions in the current procedures. This proposed regulation provides 
further guidance on NEPA by: (1) Integrating best practices elements 
described in the series of ESMs that were issued by the Department in 
2003 and finalized in the DM in March 2004; and (2) addressing new 
NEPA-related policy issues. Specifically, they provide for, among 
others, greater public and stakeholders' participation in the NEPA 
process, collaborative NEPA planning, conflict avoidance, and use of 
adaptive management.
    Finally, this proposal will allow for better integration of NEPA 
procedures and documentation into current Departmental decision-making 
processes, including collaborative and incremental decision-making.
    In 2002, the Department undertook a review of its NEPA practices. 
This review was done at the practitioner level to obtain best practices 
in the field. In addition, the Department held four regional listening 
sessions open to the public, to assist in the identification of best 
NEPA practices that could be applied across the Department.
    Following these public listening sessions, the Department 
promulgated best practices in two phases: first, through the issuance 
of five ESMs in 2003 (directives to bureaus on best practices); and 
second, through finalizing those NEPA best practices in the DM in March 
2004. The five NEPA best practices that were first addressed in ESMs 
were:

ESM 03-3, Procedures for Implementing Tiered and Combined Analyses 
(https://oepc.doi.gov/ESM/ESM03%2D3%2Epdf)

    Bureaus need to determine the sufficiency of existing environmental 
analyses. If an existing analyses is found to be sufficient, those 
documents should be cited in the Record of Decision (ROD) without doing 
additional and possibly duplicate analysis.

ESM 03-4, Procedures for Implementing Public Participation and 
Community-Based Training (https://oepc.doi.gov/ESM/ESM03%2D4%2Epdf)

    Public participation is the involvement, as early as possible, in 
the NEPA process of persons and organizations having an interest in any 
Departmental activity, which must meet the requirements of NEPA. Public 
participation also includes the proactive efforts of Departmental 
personnel to locate and involve the public.

ESM 03-5, Procedures for Implementing Integrated Analyses in National 
Environmental Policy Act (NEPA) Process (https://oepc.doi.gov/ESM/
ESM03%2D5%2Epdf)

    The Department should integrate analyses using a single NEPA 
process to enable several agencies to satisfy multiple environmental 
requirements by

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conducting concurrent rather than consecutive analyses.

ESM 03-6, Procedures for Implementing Adaptive Management Practices 
(https://oepc.doi.gov/ESM/ESM03%2D6%2Epdf)

    Adaptive management is a system of management practices based on 
clearly identified outcomes, monitoring to determine if management 
actions are meeting outcomes, and, if not, facilitating management 
changes that will best ensure that outcomes are met or to re-evaluate 
the outcomes. Although not explicitly mentioned in the CEQ regulations, 
adaptive management can be considered as part of a proposed action. The 
CEQ determined that the adaptive management provisions in the DM, which 
are now included in this proposed regulation, are in conformity with 
NEPA and the CEQ regulations.

ESM 03-7, Procedures for Implementing Consensus-Based Management in 
Agency Planning and Operations (https://oepc.doi.gov/ESM/
ESM03%2D7%2Epdf)

    Under this proposed rule, when feasible and practicable, the 
community alternative should be designated as the bureau's preferred 
alternative in the NEPA process, so long as a consensus exists within 
the community for support of that alternative. This designation is also 
subject to statutory, regulatory, and policy constraints. As a 
practical consideration, ``consensus'' is ultimately determined by the 
Responsible Official.
    Following the issuance of these ESMs, the Department undertook the 
process of incorporating these concepts into its DM. This process 
included a notice and comment period for the public. Following that 
public comment period, the Department finalized those procedures (516 
DM--Proposed Revised Procedures, September 4, 2003, 68 FR 52595; Final, 
March 8, 2004, 69 FR 10866)
    In 2005, the Department, through another public notice and comment 
process (516 DM 2.5--Proposed, March 18, 2005, 70 FR 13203; Final, June 
6, 2005, 70 FR 32840) implemented a policy requiring that eligible 
Federal, State, Tribal, and local entities be invited to be cooperating 
agencies to assist in the preparation of any Environmental Impact 
Statement (EIS). Also in 2005, the Department began a Management 
Planning and NEPA Modernization Blueprint. This blueprint recommended 
Departmental functional requirements to be implemented in an automated 
Interior Land Management Planning System. Throughout this time frame, 
the Department has continually looked for ways to improve its NEPA 
compliance. For example, we've worked with the Department of 
Agriculture, U.S. Forest Service to make our procedures more consistent 
whenever possible.
    At the 2005 White House Conference on Cooperative Conservation 
(https://cooperativeconservation.gov/conference805home.html), the 
Department heard many success stories that involved various levels of 
government working with the public and private sectors to protect and 
enhance the environment. Many of these examples addressed issues we had 
dealt with in our previous DM changes. During the Listening Sessions 
(https://cooperativeconservation.gov/sessions/), held as a 
follow up to the Conference, we heard many of the same concerns 
regarding NEPA compliance as we had under our own review and reviews 
with the Forest Service.
    Almost 30 years ago CEQ stated in its preamble to the final NEPA 
implementing regulations (43 FR 55978, November 29, 1978) that the EIS 
has ``tended to become an end in itself, rather than a means to making 
better decisions.'' CEQ noted further: ``One serious problem with the 
administration of NEPA has been the separation between an agency's NEPA 
process and its decision-making process. In too many cases bulky EISs 
have been prepared and transmitted but not used by the decision-
maker.'' The innovation at that time was a new requirement for a ROD to 
show ``how the EIS was used in arriving at the decision.'' At that 
time, CEQ broadened the focus from emphasis on a single document EIS to 
``emphasize the entire NEPA process, from early planning through 
assessment and EIS preparation through decisions and provisions for 
follow-up.'' Today, after receiving comments on a draft EIS, agencies 
prepare a final EIS and document their decision in a ROD, tying the 
analysis from the EIS to the final agency decision.
    Almost 20 years later a CEQ report, ``The National Environmental 
Policy Act--A Study of Its Effectiveness After Twenty-five Years'' 
(January 1997; https://ceq.eh.doe.gov/nepa/nepa25fn.pdf) stated that 
``frequently NEPA takes too long and costs too much, agencies make 
decisions before hearing from the public, documents are too long and 
technical for many people to use'' and according to Federal agency NEPA 
liaisons, ``the EIS process is still frequently viewed as merely a 
compliance requirement rather than as a tool to effect better decision-
making. Because of this, millions of dollars, years of time, and tons 
of paper have been spent on documents that have little effect on 
decision-making.'' The report points out that ``some citizens' groups 
and concerned individuals view the NEPA process as largely a one-way 
communications track that does not use their input effectively'' and 
``when they are invited to a formal scoping meeting to discuss a well-
developed project about which they have heard little, they may feel 
they have been invited too late in the process.'' Finally, the report 
states ``some citizens complain that their time and effort spent 
providing good ideas is not reflected in changes to proposals.''
    As a part of its continuing efforts to streamline NEPA, CEQ 
established a NEPA Task Force in 2002 to review current NEPA 
implementation practices and procedures to determine opportunities to 
improve and modernize the NEPA process. The Task Force prepared a 
report in 2003 entitled ``Modernizing NEPA Implementation,'' (https://
ceq.eh.doe.gov/ntf/report/) where a number of recommendations 
were made to improve and modernize the NEPA process. CEQ continues to 
issue guidance based on the Modernizing NEPA Implementation Report. The 
Department continues to be an active participant in this effort.
    A 2005 National Environmental Conflict Resolution Advisory 
Committee (NECRAC) Report chartered by the U.S. Institute for 
Environmental Conflict Resolution (https://www.ecr.gov/necrac/
reports.htm) of the Morris K. Udall Foundation reflected further on the 
state of the NEPA process 27 years after CEQ published its regulations 
and recommended furthering the evolution of making procedural 
requirements under section 102 of NEPA less an end in themselves and 
more a means to fulfill the policies set out in section 101. The report 
calls for improvements in the ``traditional model for NEPA 
implementation'' where ``agencies announce their plans, share their 
analyses of potential impacts of a range of options, solicit public 
comment, make decisions, deal with the fallout, if any, and move on to 
the next project.'' This model results in agency decisions ``based on a 
collection of views and interests'' but ``generally not a collective 
decision.'' The report goes on to state that while not a failure, the 
traditional model for NEPA ``does not take full advantage of the many 
strengths of section 101.''
    The NECRAC recognized that ``Americans expect to be able to work 
things out and make things better over time. It is not inevitable, and 
it is clearly

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not desirable, that society's ability to constructively address and 
resolve conflicts should languish or fail to adapt to changing times. 
The current state of environmental and natural resource decision-making 
is dominated by the traditional model, which too often fails to capture 
the breadth and quality of the values and purposes of NEPA.'' The 
NECRAC called for Federal decision-making that ``enables interested 
parties'' to ``engage more effectively in the decision-making process'' 
where ``interested parties are no longer merely commenters on a Federal 
proposal, but act as partners in defining Federal plans, programs, and 
projects.''
    The 2005 NECRAC Report notes many examples of the Federal 
government placing an increased emphasis on ``cooperating agencies'' 
(CEQ Memorandum for Heads of Federal Agencies: Designation of Non-
Federal Agencies to be Cooperating Agencies in Implementing the 
Procedural Requirements of NEPA, July 28, 1999, https://ceq.eh.doe.gov/
nepa/regs/ceqcoop.pdf; and CEQ Memorandum for Heads of Federal 
Agencies: Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act, January 30, 
2002, https://ceq.eh.doe.gov/nepa/regs/cooperating/
cooperatingagenciesmemorandum.html), ``cooperative conservation'' (E.O. 
13352 on Facilitation of Cooperative Conservation, August 26, 2004), 
environmental conflict resolution (CEQ & OMB Memorandum on 
Environmental Conflict Resolution, November 28, 2005, https://
ceq.eh.doe.gov/nepa/regs/OMB_CEQ_Joint_Statement.pdf), and 
``collaboration'' (Background and Other Cooperative Conservation 
Activities, https://www.doi.gov/initiatives/conservation2.html) in 
agency planning, NEPA analysis, and decision-making.
    As the Department integrates the NEPA process into its 
collaborative and cooperative decision-making process, the Department 
needs documentation that reflects the way interactive and incremental 
decision-making occurs. There is a need to ensure that NEPA documents 
are used in ``arriving at the decision.'' In order to do this, 
Department NEPA procedures need to reflect a more integrated process. 
As the NECRAC Report points out, there continues to be focus on 
preparing NEPA documents such as an EIS or Environmental Assessment 
(EA) for litigation rather than to facilitate an informed decision 
process. The proposed NEPA documentation requirements are intended to 
enable interested parties to engage more effectively in the decision-
making process. The agency is proposing new NEPA procedures to allow 
content and circulation requirements for environmental documents to 
reflect how agency decisions actually occur, especially with more 
emphasis on cooperation and collaboration.
    This proposed regulation will help the Department's bureaus better 
document environmental impacts of proposed actions and their 
alternatives, and facilitate development of an EIS that evolves as the 
decision evolves and therefore can be used throughout the entire NEPA 
process. Subsequent detailed statements could document changes to the 
proposal, its alternative(s), and the environmental effects to reflect 
the on-going evolution to a final Department decision while keeping the 
Responsible Official and interested parties informed. The EIS would 
then be used as a tool to foster collaborative and incremental 
decision-making processes. The record would reflect a history of how 
the detailed statement was used in collaboration and incremental 
decision-making, and the final draft and final EISs would address a 
more narrowly focused Department action for a final decision. While 
this proposed regulation does not require a decision to be made 
collaboratively, it does allow the Department to meet the procedural 
requirements of section 102 (2) of NEPA while fostering fulfillment of 
the Act's purpose in section 101.
    The proposed NEPA procedures designed to allow for better alignment 
of an EIS with Department decision-making include: (1) Allowing 
proposals and alternative(s) to be explored and modified throughout the 
NEPA process (46.415(b)(2)); and (2) allowing the circulation of 
multiple preliminary detailed statement(s) without filing requirements 
(46.415(c)(2)).
    The intent is to use environmental information effectively by 
multiple parties during the NEPA process rather than only at distinct 
comment periods for a draft and final impact statement. This is to 
allow interested parties to inform Department decision-making as they 
regularly exchange and discuss issues; differences; and necessary 
environmental, social, and economic effects analyses while alternatives 
are explored, evaluated, and modified throughout the NEPA process. The 
intent is to focus on a process and the appropriate disclosure outlined 
in section 102 of NEPA to promote the Act's purposes.
    This proposed regulation is intended to implement fully the intent 
and spirit of the E.O. 13352 on Facilitation of Cooperative 
Conservation. This E.O. was issued specifically to ensure that Federal 
agencies implement laws relating to the environment and natural 
resources in a manner that promotes cooperation amongst interested 
parties, with emphasis on appropriate inclusion of local participation 
in Federal decision-making. As a result, the Federal government has 
placed increasing emphasis on ``cooperating agencies,'' ``cooperative 
conservation,'' environmental conflict resolution, and 
``collaboration'' in agency planning, NEPA analysis, and decision-
making.
    The ongoing public involvement and collaborative processes 
encouraged and practiced in the Department and other agencies today can 
benefit from more expressed flexibility than the agency NEPA procedures 
currently encourage. Thus, these proposed changes to our NEPA 
procedures are intended to provide the Department, in cooperation with 
other Federal, State, and local agencies, Tribes, and other interested 
parties greater flexibility to meet the intent of NEPA through the 
procedural provisions of section 102(2) of NEPA. As an example, this 
proposed regulation allows incremental alternative development through 
scoping where the agency together with interested and affected members 
of the public are given the opportunity to develop alternatives.
    As a part of the conversion of the Department's NEPA procedures 
from 516 DM to the CFR, a number of key changes will be made. This 
proposed regulation:
     Clarifies actions subject to NEPA section 102(2) by 
locating all relevant CEQ guidance in one place.
     Amends current direction so that immediate emergency 
responses do not require documentation under the CEQ regulations or 
NEPA section 102(2). The Responsible Official must assess and minimize 
potential environmental damage to the extent consistent with protecting 
life, property, and important resources.
     Incorporates CEQ guidance language that states that a past 
action must be ``relevant'' in illuminating or predicting direct and 
indirect effects of a proposed action when conducting cumulative 
effects analysis.
     Clarifies that alternatives, including the proposed 
action, may be modified through an incremental process if modifications 
are analyzed and documented.
     Clarifies that the agency has discretion to determine, on 
a case-by-case basis, how to involve the public in the preparation of 
EAs and whether an EA will be published in draft for public comment.
     Clarifies that adaptive management strategies may be 
incorporated into

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alternatives, including the proposed action.
     Incorporates language from the statute and CEQ guidance 
that states EAs need only analyze the proposed action if there are no 
unresolved conflicts concerning alternative uses of available 
resources.
    This proposed regulation is organized under subparts A through E, 
covering the material in 516 DM Chapters 1 through 6. The Department 
did not include 516 DM Chapter 7 in this proposed regulation because it 
provides guidance on review of environmental documents and project 
proposals prepared by other Federal agencies. Bureau-specific NEPA 
implementing procedures in 516 DM Chapters 8-15 continue to be 
available for their respective use.
    This proposed regulation does not include sections in the DM that 
generally provide guidance to bureaus. This guidance will be addressed 
separately in bureaus' NEPA handbooks or in other Departmental 
documents such as 516 DM and ESMs.
    The following paragraphs contain a section-by-section analysis of 
key proposed changes under each subpart from those currently in the 516 
DM procedures. The Department has highlighted key changes, including 
new sections, under each subpart so that commenters can focus on the 
specific changes proposed by the Department in this proposed 
regulation.

Section-by-Section Analysis of Proposed Changes

Subpart A: General Information

    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; Preliminary EIS; Reasonably 
foreseeable future action; and Responsible Official.

Subpart B: Protection and Enhancement of Environmental Quality

    We removed portions of 516 DM Chapter 1 that address purely 
Departmental processes. This information will be retained in the DM or 
will be issued as additional guidance by the Office of Environmental 
Policy and Compliance. 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.
    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.
    Section 46.110 Using consensus-based management. This section 
incorporates consensus-based management as part of the NEPA planning 
process.
    Section 46.113 Scope of the analysis. This section addresses the 
relationships between connected, cumulative, and similar actions and 
direct, indirect and cumulative impacts.
    Section 46.115 Consideration of past actions in the cumulative 
effects analysis. This section incorporates CEQ guidance issued on June 
24, 2005, that clarifies how past actions should be considered in a 
cumulative effects analysis.
    Section 46.120 Using existing environmental analyses. This section 
explains how to incorporate existing environmental analysis into the 
analysis being prepared.
    Section 46.125 Incomplete or unavailable information. This section 
clarifies that the overall costs of obtaining information referred to 
in 40 CFR 1502.22 are not limited to the estimated 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 requests 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 requests 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.
    Section 46.130 Mitigation measures in analyses. This section 
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.
    Section 46.135 Using incorporation by reference. This section 
establishes regulations for incorporating by reference.
    Section 46.140 Using tiered documents. This section clarifies the 
use of tiering. The Department is considering developing more specific 
provisions as to the use of tiering, and invites public comment on this 
issue. For instance, an EA prepared in support of an individual action 
can be tiered to a programmatic or other broader EIS. The Department is 
considering under what conditions a FONSI may be reached for the 
individual action on the basis of such a tiered EA, if significant 
effects noted in that EA have already been disclosed and analyzed in 
the EIS to which the EA is tiered. The FONSI, in such circumstances 
would be, in effect, a finding of no significant impact other than 
those already disclosed and analyzed in the EIS to which the EA is 
tiered.
    Section 46.145 Using adaptive management. This section incorporates 
adaptive management as part of the NEPA planning process.
    Section 46.150 Emergency responses. This section clarifies that 
Responsible Officials can take immediate actions in response to the 
immediate effects of emergencies necessary to mitigate harm to life, 
property, or important resources without complying with the procedural 
requirements of NEPA, the CEQ regulations, or this proposed regulation. 
Furthermore, Responsible Officials 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 proposed regulation by consulting with the 
Department (and CEQ in cases where the response action is expected to 
have significant environmental impacts) about alternative arrangements.
    Section 46.155 Consultation, coordination, and cooperation with 
other agencies and organizations. 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.
    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.
    Section 46.165 Ensuring public involvement. This section 
incorporates public information and involvement requirements for 
Departmental proposed actions that have potential environmental 
impacts.
    Section 46.170 Environmental effects abroad of major Federal 
actions. This section describes procedures the bureaus must follow in 
implementing E.O. 12114, which addresses the United States government's 
exclusive and

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complete determination of the procedural and other proposed actions to 
be taken by Federal agencies to further the purpose of NEPA, with 
respect to the environment outside the United States, its territories, 
and possessions.

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 regulation the essential parts of the NEPA 
process that are unique to the Department and which require further 
clarification of the CEQ regulations. This proposed regulation 
clarifies the requirements for applying NEPA early, using categorical 
exclusions (CXs), 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 interested private parties whenever practical and 
feasible.
    Section 46.205 Actions categorically excluded from further NEPA 
review. This section provides Department-specific guidance on the use 
of CXs.
    Section 46.210 Listing of Departmental CXs. This section includes a 
listing of the Department's CXs (currently 516 DM Chapter 2, Appendix 
B-1). This section includes the same number of CXs as were in the DM 
and the wording in the CXs is essentially unchanged. These CXs were 
each published for public comment prior to inclusion in the DM. There 
is one change in Sec.  46.210(i), which replaces 516 DM Chapter 2, 
Appendix B-1, Number 1.10, correcting a typographical error. The phase 
`` * * * technical or procedural nature; or * * *'' from 516 DM as it 
existed in 1984 was inadvertently changed in 2004 in 516 DM to read `` 
* * * technical or procedural nature; and * * *''. We have corrected 
this error because there are certain circumstances where NEPA does not 
apply. For example, guidance to applicants for transferring funds 
electronically to the Federal Government is an action not subject to 
NEPA. The CXs are in paragraphs (a) through (l).
    Section 46.215 CXs: Extraordinary circumstances. This section 
contains a listing of the Department's CXs: Extraordinary Circumstances 
(currently 516 DM Chapter 2, Appendix B-2). This section includes the 
same number of CXs: Extraordinary Circumstances as were in the DM and 
the wording in the CXs: Extraordinary Circumstances is essentially 
unchanged. Similarly to the listing of CXs, each of the Extraordinary 
Circumstances was published for public comment prior to inclusion in 
the DM. The CXs: Extraordinary Circumstances are in paragraphs (a) 
through (l).
    Section 46.220 How to designate lead agencies. This section 
provides specific detail regarding the selection of lead agencies.
    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.
    Section 46.230 Role of cooperating agencies in the NEPA process. 
This section provides specific detail regarding the responsibilities of 
cooperating agencies.
    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, possible alternatives, and interdisciplinary considerations. 
The regulatory language encourages the use of communication methods for 
a more efficient and proactive approach to scoping.
    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.

Subpart D: Environmental Assessments

    In the conversion from 516 DM Chapter 3 to 43 Part 46 Subpart D, we 
have written this proposed regulation 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.
    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 requires 
bureaus to provide notice when they are proposing to undertake an 
action but gives bureaus discretion to determine the format for 
providing opportunities for public involvement. It has 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 not always required.
    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 proposed regulation since this information pertains to both EISs 
and EAs.
    Section 46.315 How to format an EA. This section provides 
clarification on the EA format.
    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 Responsible Official in adopting an EA.
    Section 46.325 Conclusion of the EA process. This section has been 
added to outline the possible conclusions of the EA process and to 
clarify the responsibilities of bureaus in the documentation of such 
conclusions.

Subpart E: Environmental Impact Statements

    The language from 516 DM Chapter 4 that simply reiterates the CEQ 
regulations is not included in subpart E of this proposed regulation. 
These 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 by reference, incomplete or unavailable information, 
adaptive management, and contractor prepared environmental documents, 
from 516 DM Chapter 4 are found in subpart B of this proposed 
regulation since this information pertains to EISs and EAs. The term 
``environmentally preferred alternative'' is found in the definitions, 
subpart A. This phrase expands on the definition as currently exists in 
516 DM 4.10(A)(5). This proposed regulation incorporates procedural 
changes, clarifies the extent of discretion and responsibility that may 
be exercised by bureaus and provides clarity in the EIS process.

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    Section 46.400 Timing of EIS development. This section provides 
specific detail regarding when an EIS must be prepared. The Department 
is considering developing more specific provisions as to the timing of 
EIS preparation, and invites public comment on this issue. For example, 
courts have stated that NEPA requires an agency to complete its 
evaluation of the environmental effects before making its decision, 
which is prior to the point of commitment to any action which results 
in an irreversible and irretrievable commitment of resources. 
Specifically, we are seeking comments with respect to whether guidance 
should be developed to assist the Responsible Official toward 
identifying the point prior to the decision. We are also soliciting 
comments on whether it would be helpful to include in paragraph (a) 
examples of a major Federal action significantly affecting the quality 
of the human environment.
    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 by reference and tiering.
    Section 46.415 EIS format. This section establishes an alternative 
EIS format. This section also 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.
    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.
    Section 46.425 Identification of the preferred alternative in an 
EIS. This section clarifies when the preferred alternative must be 
identified.
    Section 46.430 Environmental review and consultation requirements. 
This section establishes procedures for an EIS that also addresses 
other 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 analyzed, additional NEPA analysis will be 
required.
    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.
    Section 46.440 Eliminating duplication with State and local 
procedures. This section allows a State agency to jointly prepare an 
EIS, if applicable.
    Section 46.445 Preparing a legislative EIS. This section ensures 
that a legislative EIS is included as a part of the formal transmittal 
of a legislative proposal to the Congress.
    Section 46.450 Identifying the environmentally preferable 
alternative. This section provides for identifying the environmentally 
preferable alternative in the ROD.

Procedural Requirements

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that 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) 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 proposed condition of having implementing direction 
in regulation and explanatory guidance in the DM.
    Many benefits and costs associated with the proposed 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, flexibility in 
preparation of environmental documents, and improved legal standing. 
These will be positive effects of the new rule.
    Moving NEPA procedures from the DM to the CFR is expected to 
provide a variety of potential beneficial effects. This rule would meet 
the requirements of 40 CFR 1507.3 by placing Department's implementing 
procedures in their proper regulatory position. Maintaining 
Departmental explanatory guidance in directives would facilitate timely 
agency responses to new ideas and information, procedural 
interpretations, training needs, and editorial changes to addresses and 
internet links to assist bureaus when implementing the NEPA process. 
Finally, the proposed changes to the Department NEPA procedures are 
intended to provide the Department specific options to meet the intent 
of NEPA through collaboration, the establishment of incremental 
alternative development, and the use of adaptive management principles.
    Thus, while no single effect of this proposed 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 cost-benefits 
associated with the proposed regulation is contained in the economic 
analysis which is incorporated in the administrative record for this 
proposed rulemaking and may be accessed on the Department's Office of 
Environmental Policy and Compliance Web site located at: https://
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.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. As explained above, this rule will not have an annual effect on 
the economy of $100 million or more and is expected to have no 
significant economic impacts.
    b. Will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, Tribal, or local 
government agencies; or geographic regions. Compliance with NEPA and 
supplementing the CEQ regulations will not affect costs or prices.

[[Page 132]]

    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. 
Compliance with NEPA and supplementing CEQ regulations in this rule 
should have no effects, adverse or beneficial, on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign based 
enterprises.

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 
proposed rule on State, local, and tribal governments and the private 
sector. This proposed 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 proposed 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 proposed rule does not pose the risk of 
a taking of Constitutionally protected private property.

Federalism (E.O. 13132)

    The Department has considered this proposed rule under the 
requirements of E.O. 13132, Federalism. The Department has concluded 
that the proposed rule conforms with 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.

Paperwork Reduction Act

    This rule does not require an information collection from 10 or 
more parties and a submission under the Paperwork Reduction Act is not 
required. An OMB form 83-I is not required.

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 Proposed Regulation

    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.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 43 CFR Part 46

    Environmental protection, EISs.

James E. Cason,
Associate Deputy Secretary.
    For the reasons given in the preamble, the Office of the Secretary 
proposes to add 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 Using consensus-based management.
46.113 Scope of the analysis.
46.115 Consideration of past actions in the cumulative effects 
analysis.
46.120 Using existing environmental analyses.
46.125 Incomplete or unavailable information.
46.130 Mitigation measures in analyses.
46.135 Using incorporation by reference.

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46.140 Using tiered documents.
46.145 Using adaptive management.
46.150 Emergency responses.
46.155 Consultation, coordination, and cooperation with other 
agencies and organizations.
46.160 Limitations on actions during the NEPA analysis process.
46.165 Ensuring public involvement.
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 CXs.
46.215 CXs: 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 EA and when it must be prepared.
46.305 Public involvement in the EA process.
46.310 Contents of an EA.
46.315 How to format an EA.
46.320 Adopting EAs prepared by another agency, entity, or person.
46.325 Conclusion of the EA process.
Subpart E--Environmental Impact Statements
46.400 Timing of EIS development.
46.405 Remaining within page limits.
46.415 EIS format.
46.420 Terms used in an EIS.
46.425 Identification of the preferred alternative in an EIS.
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 EIS.
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.

    This part establishes procedures for the Department, and its 
constituent bureaus, to use for compliance with:
    (a) The National Environmental Policy Act (NEPA) of 1969, as 
amended (42 U.S.C. 4321, et seq.); and
    (b) The Council on Environmental Quality (CEQ) regulations for 
implementing the procedural provisions of NEPA (40 CFR parts 1500-
1508).


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.

------------------------------------------------------------------------
                                                    40 CFR
------------------------------------------------------------------------
Subpart A:
  46.10.............................  Parts 1500-1508.
  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.
  46.113............................  1508.25
  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
  46.165............................  1506.6
  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............................  1505.1
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............................  1503.1
  46.440............................  1506.2
  46.445............................  1506.8
  46.450............................  1505.2
------------------------------------------------------------------------

    (b) The Responsible Official shall coordinate the appropriate NEPA 
review with the decisionmaking process for proposals subject to this 
part.
    (c) During the decisionmaking 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 with the exception of Sec.  46.210(a) through (j), shall include 
such documents, including supplements, comments, and responses as part 
of the administrative record.
    (d) The Responsible Official's decision on a proposed action shall 
be within the range of alternatives discussed 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 shall make policies 
or staff available to advise potential applicants of studies or other 
information 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 if 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.
    Community-based training in the NEPA context is the training of 
local participants together with Federal participants in the 
intricacies of the environmental planning effort as it relates to the 
local community(ies).
    Controversial refers to cases where a substantial dispute exists as 
to the size, nature, or effect of the proposed action rather than 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 to provide information and 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 ROD, that causes the least 
damage to the biological and physical environment and best protects, 
preserves, and enhances historical, cultural, and

[[Page 134]]

natural resources. The Responsible Official must consider and weigh 
long-term environmental impacts against short-term impacts in 
evaluating what is the best protection of these resources. In some 
situations, there may be more than one environmentally preferable 
alternative.
    Preliminary environmental impact statement is an interim 
environmental document that a Responsible Official may use to initiate 
discussion, solicit comments, and inform interested parties and agency 
personnel while proposals, alternatives, and environmental effects are 
explored and considered prior to filing a draft or final EIS. A 
preliminary EIS is an option available for Responsible Official to use 
and is not required.
    Reasonably foreseeable future actions include those activities not 
yet undertaken, for which there are existing decisions, funding, or 
proposals identified by the agency.
    Responsible Official is the bureau employee who exercises the 
authority to make and implement a decision on a proposed action.

Subpart B--Protection and Enhancement of Environmental Quality


Sec.  46.100  Federal action subject to the procedural requirements of 
NEPA.

    (a) 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 will be provided to implement 
it. If Federal funding is provided in the form of general revenue 
sharing funds with no Federal agency control as to the expenditure of 
such funds by the recipient, NEPA compliance is not necessary.
    (b) A bureau proposal is a Federal action and subject to the 
procedural requirements of NEPA when it meets all of the following 
criteria:
    (1) The bureau has a goal and is actively preparing to make a 
decision on one or more alternative means of accomplishing that goal;
    (2) The proposed action is subject to bureau control and 
responsibility (40 CFR 1508.18);
    (3) The proposed action would cause effects on the human 
environment (40 CFR 1508.14) that can be meaningfully evaluated (40 CFR 
1508.23); and
    (4) The proposed action is not statutorily exempt from the 
requirements of section 102(2) of NEPA.


Sec.  46.105  Using a contractor to prepare environmental documents.

    A bureau may use a contractor to prepare any environmental document 
in accordance with the standards of 40 CFR 1506.5(b) and (c). If a 
bureau uses a contractor, the bureau 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  Using consensus-based management.

    (a) For the purposes of this Part, consensus-based management is 
the inclusion of interested parties with an assurance for the 
participants that the results of their work will be given consideration 
by the Responsible Official in selecting a course of action.
    (b) In practicing consensus-based management, bureaus should give 
full consideration to any reasonable alternative(s) put forth by 
participating interested parties. While there can be no guarantee that 
a community's proposed alternative will be taken as the agency proposed 
action, bureaus must be able to show that a community's work is 
reflected in the evaluation of the proposed action and the final 
decision. To be considered, the community's alternative must be fully 
consistent with NEPA, the CEQ Regulations, and all applicable 
Departmental and bureau written policies and guidance.


Sec.  46.113  Scope of the analysis.

    To determine the scope of the NEPA analysis and documentation for a 
proposed action, bureaus shall consider whether, to what extent, and 
how they will analyze connected, cumulative, and similar actions. The 
NEPA document should contain discussions of the effects of connected 
and cumulative actions, and may contain discussions of the effects of 
similar actions. For example, when the proposed Federal action 
determines the location or design of a non-Federal connected action, 
the effects of that connected action should be included in the 
discussion of the indirect impacts of the proposed Federal action. The 
effects of non-Federal and Federal cumulative actions and actions with 
cumulative effects on the same resource values affected by the proposed 
Federal action should be included in the discussion of the cumulative 
impacts of the proposed Federal action. A non-Federal connected action 
that impacts the same resource values affected by the proposed Federal 
action should be included in the discussion of the indirect and 
cumulative impacts of the proposed Federal action.


Sec.  46.115  Consideration of past actions in the cumulative effects 
analysis.

    When considering the effects of past actions as part of a 
cumulative effects analysis, the Responsible Official must analyze the 
effects in accordance with guidance established by CEQ:
    (a) The analysis of cumulative effects begins with consideration of 
the direct and indirect effects on the environment that are expected or 
likely to result from the alternative proposals for bureau action. 
Bureaus then look for present effects of past actions that are, in the 
judgment of the bureau, relevant and useful because they have a 
significant cause-and-effect relationship with the direct and indirect 
effects of the proposal for bureau action and its alternatives. CEQ 
regulations do not require the consideration of the individual effects 
of all past actions to determine the present effects of past actions. 
Once the bureau has identified those present effects of past actions 
that warrant consideration, the bureau assesses the extent that the 
effects of the proposal for bureau action or its alternatives will add 
to, modify, or mitigate those effects. The final analysis documents a 
bureau assessment of the cumulative effects of the actions considered 
(including past, present, and reasonably foreseeable future actions) on 
the affected environment.
    (b) With respect to past actions, during the scoping process and 
subsequent preparation of the analysis, the bureau must determine what 
information regarding past a