Implementation of the National Environmental Policy Act (NEPA) of 1969, 61292-61323 [E8-23474]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

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



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Part IV





Department of the Interior





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Office of the Secretary



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43 CFR Part 46



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

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

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 46

RIN 1090-AA95


Implementation of the National Environmental Policy Act (NEPA) of 
1969

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Department of the Interior (Department) is amending its 
regulations by adding a new part to codify its procedures for 
implementing the National Environmental Policy Act (NEPA), which are 
currently located in chapters 1-6 of Part 516 of the Departmental 
Manual (DM). This rule contains Departmental policies and procedures 
for compliance with NEPA, Executive Order (E.O.) 11514, E.O. 13352 and 
the Council on Environmental Quality's (CEQ) regulations (40 CFR Parts 
1500-1508). Department officials will use this rule in conjunction with 
and supplementary to these authorities. The Department believes that 
codifying the procedures in regulations that are consistent with NEPA 
and the CEQ regulations will provide greater visibility to that which 
was previously contained in the DM and enhance cooperative conservation 
by highlighting opportunities for public engagement and input in the 
NEPA process.
    The Department will continue to maintain Department's information 
and explanatory guidance pertaining to NEPA in the DM and Environmental 
Statement Memoranda (ESM) to assist bureaus in complying with NEPA. 
Bureau-specific NEPA procedures remain in 516 DM Chapters 8-15 and 
bureau guidance in explanatory and informational directives. 
Maintaining explanatory information in the Department's DM chapters and 
ESM, and bureau-specific explanatory and informational directives will 
facilitate timely responses to new ideas, new information, procedural 
interpretations, training needs, and editorial changes to assist field 
offices when implementing the NEPA process.

EFFECTIVE DATE: November 14, 2008.

FOR FURTHER INFORMATION CONTACT: Dr. Vijai N. Rai, Team Leader, Natural 
Resources Management, Office of Environmental Policy and Compliance, 
1849 C Street, NW., Washington, DC 20240. Telephone: 202-208-6661. E-
mail: vijai_rai@ios.doi.gov.

SUPPLEMENTARY INFORMATION: As a part of the conversion of the 
Department's NEPA procedures from 516 DM to regulations, a number of 
key changes have been made. This rule:
     Clarifies which actions are subject to NEPA section 102(2) 
by locating all relevant CEQ guidance in one place, along with 
supplementary Department procedures.
     Establishes the Department's documentation requirements 
for urgently needed emergency responses. The Responsible Official (RO) 
must assess and minimize potential environmental damage to the extent 
consistent with protecting life, property, and important natural, 
cultural and historic resources and, after the emergency, document that 
an emergency existed and describe the responsive actions taken.
     Incorporates CEQ guidance that the effects of a past 
action relevant to a cumulative impacts analysis of a proposed action 
may in some cases be documented by describing the current state of the 
resource the RO expects will be affected.
     Clarifies that the Department has discretion to determine, 
on a case-by-case basis, how to involve the public in the preparation 
of EAs.
     Highlights that adaptive management strategies may be 
incorporated into alternatives, including the proposed action.
     Incorporates language from the statute and CEQ guidance 
that EAs need only analyze the proposed action and may proceed without 
consideration of additional alternatives when there are no unresolved 
conflicts concerning alternative uses of available resources.
    This rule is organized under subparts A through E, covering the 
material currently in 516 DM Chapters 1 through 6. The Department is 
replacing these chapters with new 516 DM Chapters 1-3, which will 
include explanatory guidance on these regulations. These revised 
chapters will be available to the public before the effective date of 
this rule and will be found at https://www.doi.gov/oepc. The Department 
did not include 516 DM Chapter 7 in this rule because it provides 
internal administrative guidance specific to Department review of 
environmental documents and project proposals prepared by other Federal 
agencies. Chapters 8-15 of 516 DM continue to contain bureau-specific 
NEPA implementing procedures. In addition, other guidance pertaining to 
the Department's NEPA regulations and the bureaus' NEPA procedures will 
be contained in explanatory and informational directives. These 
explanatory and information directives will be contained either in the 
DM or ESM (for Departmental guidance), bureau NEPA handbooks (for 
bureau-specific guidance), or both.
    The CEQ was consulted on the proposed and final rule. CEQ issued a 
letter stating that CEQ has reviewed this rule and found it to be in 
conformity with NEPA and CEQ regulations (per 40 CFR 1507.3 and NEPA 
section 102(2)(B)).

Comments on the Proposal

    This rule was published as a proposed rule in the Federal Register 
(73 FR 126) on January 2, 2008, and there was a 60-day comment period 
that closed on March 3, 2008. The Department received 100 comments. 
These comments were in the form of letters, e-mails, and faxes. Of the 
100 comments received 50 were substantive; the remaining comments were 
all variations of a single form letter addressing one or more of three 
issues, which have been addressed below. The Department very much 
appreciates the response of the public, which has assisted the 
Department in improving the clarity of this final rule.
    In addition to changes made to the final rule in response to 
specific comments received, which are noted below, the Department has 
made minor revisions throughout in order to improve the clarity of the 
rule. In general, these latter revisions do not change the substance or 
meaning of any of the provisions proposed on January 2, 2008, except in 
one or two instances as noted. As contemplated in the preamble to the 
proposed rule, the Department has added a provision specifying the 
circumstances in which an Environmental Assessment (EA) may tier to an 
Environmental Impact Statement (EIS) and in which a bureau may reach a 
Finding of No Significant Impact (FONSI) or Finding of No New 
Significant Impact (FONNSI). Please see paragraph 46.140(c).

General Comments on the Proposed Rule

    Comment: Several commenters questioned the rationale for moving the 
Department's NEPA procedures from the DM to regulations and requested 
further clarification of this rationale.
    Response: The Department believes that codifying the procedures in 
regulation will provide greater visibility to that which was previously 
contained in the DM and highlight opportunities for public engagement 
and input in the NEPA process. The Department believes that this 
greater accessibility of the regulations, when published in the Code of 
Federal Regulations (CFR), will allow

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the public to more easily participate in the NEPA process.
    Comment: Some commenters stated that the Department should include 
the issue of global climate change in all environmental analysis 
documents. They stated that the Department has a legal obligation under 
NEPA to analyze the effects of global climate change as shaping the 
context within which proposed actions take place, as well as the 
impacts of proposed projects on climate change. Another group 
recommended that the Department include a mandate that an environmental 
analysis of climate change impacts be included in the NEPA analysis 
prepared for Resource Management Plans (RMPs). Several groups suggested 
that the Department should require planning documents for fossil fuel 
developments to consider various energy alternatives, including 
conservation and energy efficiency. They also recommended that the 
Department analyze greenhouse gas emissions in all decision documents 
related to energy development on public lands. Another commenter 
suggested that the Department compile information about landscape 
changes in response to climate change to use for programmatic NEPA 
documents.
    Response: Climate change issues can arise in relation to the 
consideration of whether there are direct or indirect effects of the 
greenhouse gas emissions from a proposed action, the cumulative effect 
of greenhouse gas emissions, and the effect of climate change on the 
proposed action or alternatives. The extent to which agencies address 
the effects of climate change on the aspects of the environment 
affected by the proposed action depends on the specific effects of the 
proposed action, their nexus with climate change effects on the same 
aspects of the environment, and their implications for adaptation to 
the effects of climate change. Whether and to what extent greenhouse 
gas emissions and/or climate change effects warrant analysis is the 
type of determination that Responsible Officials make when determining 
the appropriate scope of the NEPA analysis. Extensive discussion 
regarding the role of the Department, as well as the Federal government 
as a whole, with respect to the effects of greenhouse gas emissions 
and/or global climate change is beyond the scope of this rule 
concerning environmental analysis generally. Consequently, the final 
rule does not contain explicit provisions addressing global climate 
change.
    Comment: One commenter stated that the Department should include a 
provision that agencies must seek input through the NEPA process from 
local, regional, State, and tribal health agencies when making 
decisions that may impact human health. Several groups recommend 
requiring a Health Impact Assessment (which is a tool used by the World 
Health Organization) when a project may impact human health.
    Response: The Department appreciates this suggestion but does not 
believe inclusion of a specific requirement in this regard is 
appropriate in this rule. Individual bureaus of the Department have 
addressed and will continue to address possible impacts to human health 
in certain circumstances, such as with respect to subsistence issues in 
Alaska. Whether or not a Health Impact Assessment is the appropriate 
means to assess potential impacts on human health with regard to a 
particular proposal is the type of determination that Responsible 
Officials make for all manner of possible impacts when determining the 
appropriate scope of the NEPA analysis.

Responses to Comments on Individual Provisions, Including Analysis of 
Changes Made

    The following paragraphs contain responses to comments made on 
individual provisions of the proposed rule and incorporate discussion 
of changes made to the rule as proposed in January 2008.

Subpart A: General Information

    Section 46.10 Purpose of this Part. A new paragraph (c) has been 
added to clarify that, in accordance with CEQ regulations at 40 CFR 
1500.3, trivial violations of these regulations are not intended to 
give rise to any independent cause of action.
    Section 46.30 Definitions. This section supplements the terms found 
in the CEQ regulations and adds several new definitions. The terms 
affected are the following: Adaptive management; Bureau; Community-
based training; Controversial; Environmental Statement Memoranda; 
Environmentally preferable alternative; No action alternative; Proposed 
action; Reasonably foreseeable future actions; and Responsible 
Official. A definition of consensus-based management has been placed in 
section 46.110. The definitions of no action alternative and proposed 
action have been moved to this section for the final rule from proposed 
section 46.420, as these terms may apply to both EAs and EISs. Comments 
and responses addressing these terms may be found below, in the 
discussion of section 46.420.
    Comment: Several commenters expressed concern that the definition 
of ``community'' may be ``misinterpreted in a variety of ways to mean 
local and county governments affected by a proposed action, or 
communities of individuals with a common interest in the project who do 
not necessarily live in the area directly affected by the project.'' 
Several groups recommended that the Department include and review the 
definition(s) in Environmental Statement Memorandum No. ESM03-7.
    Response: Because of the possibility of confusion noted by the 
commenter, the Department has included a provision at section 46.110 
focusing on ``consensus-based management'' as incorporating the ideas 
reflected in the emphasis on community involvement in the NEPA process. 
In developing the provision addressing consensus-based management, the 
Department relied upon the existing ESM03-7.
    Comment: Many commenters expressed concerns with the proposed 
definition of ``controversial.'' Some stated that the size or nature of 
a proposed action should not render the action controversial under 
NEPA. Several individuals are concerned that the proposed definition of 
``controversial'' would render all proposed projects on public lands as 
being controversial and will protract NEPA analyses. One group 
applauded the Department for defining ``controversial'' in terms of 
disputes over the bio-physical effects of a project rather than merely 
opposition to a project.
    Response: The language in the proposed rule reflects current case 
precedent on the meaning of ``controversial'' under NEPA and has been 
retained, but with modification to address the confusion regarding the 
reference to ``size'' and ``nature'' in the final rule. Courts have 
consistently specified that disagreement must be with respect to the 
character of the effects on the quality of the human environment in 
order to be considered to be ``controversial'' within the meaning of 
NEPA, rather than a mere matter of the unpopularity of a proposal. See 
Como-Falcon Coalition, Inc. v. U.S. Dept. of Labor, 609 F.2d 342 (8th 
Cir. 1978), cert. denied, 446 U.S. 936 (``Mere opposition to federal 
project does not make project controversial so as to require 
environmental impact statement.'')
    Comment: Some commenters suggested that the definition of 
``environmentally preferable alternatives'' does not make clear whether 
the requirement applies to Records of Decision (RODs) on projects

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analyzed in an EIS or EA or only to those analyzed in an EIS. They 
recommended adding a sentence at the end of the definition clarifying 
that the requirement applies to EAs and EISs.
    Response: CEQ regulations require the identification of at least 
one environmentally preferable alternative in a ROD, which is the 
decision document issued after completion of an EIS. (40 CFR 1505.2(b); 
see also Question 6b of CEQ's ``Forty Most Asked Questions Concerning 
CEQ's National Environmental Policy Act Regulations,'' 46 Fed. Reg. 
18026 (Mar. 23, 1981), as amended (hereinafter CEQ's ``Forty Most Asked 
Questions''). The CEQ regulations do not identify the decision document 
issued after completion of an EA/FONSI, and bureaus do not issue RODs 
in this situation. Therefore, the Department has not changed the 
definition in response to this comment.
    Comment: Several commenters expressed reservations about the 
definition of Preliminary Environmental Impact Statement (PEIS). They 
suggested that the role of the PEIS be clarified. One commenter wanted 
the Department to include provisions on how the scoping process and the 
PEIS will interact. Others wanted to know what level of detail should 
be included in a PEIS and whether use of a PEIS would introduce an 
additional requirement for public comment. One commenter strongly 
disagreed with the use of a PEIS, stating that the use of a PEIS could 
delay a DEIS or FEIS and could add additional expenses to private 
proponents that are funding NEPA projects. They recommended that the 
Department add a provision to the rule that would enforce time 
restrictions on the PEIS process.
    Response: Because of the confusion and concern surrounding the 
PEIS, and upon further reflection, the Department has decided not to 
include this provision in the final rule. The definition in the 
proposed rule found at section 46.30 and description in sections 46.415 
and 46.420 have been removed in the final rule. The Department 
continues to encourage collaboration with the public in an approach to 
alternative development and decision-making. The implementation of any 
such approach is determined by the RO. The PEIS was simply an optional 
tool and its removal from the final rule will not diminish this 
continuing Departmental emphasis on collaboration. The RO will still be 
free to involve and inform the public regarding each particular NEPA 
analysis in a manner that best meets the public and government needs.
    Comment: One commenter stated that the Department should add 
``agency'' to the definition of ``Reasonably Foreseeable Future 
Actions'' to ensure the agency covers all reasonably foreseeable 
actions that flow from proposed actions. Several commenters stated that 
the proposed definition of ``Reasonably Foreseeable Future Actions'' 
conflicts with the definition of ``Reasonably Foreseeable Development 
Scenario'' contained in the Instruction Memorandum 2004-089 issued by 
the BLM. Another commenter stated that the proposed definition of 
``Reasonably Foreseeable Future Actions'' does not follow CEQ 
guidelines.
    Response: The final rule defines ``reasonably foreseeable future 
actions'' to explain a term used in CEQ's definition for ``cumulative 
impact'' at 40 CFR 1508.7. The Department has attempted to strike a 
balance by eliminating speculation about activities that are not yet 
planned, but including those that are reasonably foreseeable and are 
expected to occur (for example, based on other development in the area 
when there has been some decision, funding, or development of a 
proposal (see 40 CFR 1508.23)). The Department does not believe that 
the definition of ``reasonably foreseeable future actions'' conflicts 
with the description of the Bureau of Land Management's analytical 
tool, the ``reasonably foreseeable development scenario'' or RFD. The 
RFD is a projection (scenario) of oil and gas exploration, development, 
production, and reclamation activity that may occur in a specific 
resource area during a specific period of time; as such, the analysis 
in the RFD can provide basic information about oil and gas activities 
that may inform the analysis of reasonably foreseeable future actions.
    In order to clarify that reasonably foreseeable future actions 
include both ``federal and non-federal'' activities, we have added 
these terms in the definition in section 46.30. This is consistent with 
40 CFR 1508.7. The Department has added language to clarify that the 
existing decisions, funding, or proposals are those that have been 
brought to the attention of the RO.
    In its mention of the ``Responsible Official of ordinary prudence'' 
the definition also incorporates the reasonableness standard emphasized 
by the Supreme Court as ``inherent in NEPA and its implementing 
regulations.'' In Department of Transportation v. Public Citizen, 541 
U.S. 752, 770 (2004), the Court reaffirmed that this ``rule of reason'' 
is what ensures that agencies include in the analyses that they prepare 
information useful in the decision-making process. In that case, the 
Court noted that the agency in question, the Federal Motor Carrier 
Safety Administration in the Department of Transportation, properly 
considered the incremental effects of its own safety rules in the 
context of the effects of the reasonably foreseeable possibility that 
the President might lift the moratorium on cross-border operations of 
Mexican motor carriers. Id. In those circumstances, the possibility 
that the President might act in one of several ways was neither an 
existing decision, matter of funding, or proposal, but was nevertheless 
a possibility that a person of ordinary prudence would consider when 
reaching a decision regarding the proposed action of promulgating the 
rule at issue in that case. Similarly, in some circumstances an RO of 
ordinary prudence would include analysis of actions that, while not yet 
proposed, funded, or the subject of a decision, nevertheless are likely 
or foreseeable enough to provide important information and context 
within which any significant incremental effects of the proposed action 
would be revealed.

Subpart B: Protection and Enhancement of Environmental Quality

    The proposed rule did not include portions of 516 DM Chapter 1 that 
are merely explanatory in that they address internal Departmental 
processes. This information will be retained in the DM or will be 
issued as additional explanatory information by the Department's Office 
of Environmental Policy and Compliance in Environmental Statement 
Memoranda.
    In this final rule, this subpart includes the following sections:
    Section 46.100 Federal action subject to the procedural 
requirements of NEPA. This section provides clarification on when a 
proposed action is subject to the procedural requirements of NEPA. 
Paragraph 46.100(b)(4), ``The proposed action is not exempt from the 
requirements of section 102(2) of NEPA,'' refers to those situations 
where, either a statute specifically provides that compliance with 
section 102(2) of NEPA is not required, or where, for instance, a 
bureau is required by law to take a specific action such that NEPA is 
not triggered. For example, Public Law 105-167 mandates the Bureau of 
Land Management (BLM) to exchange certain mineral interests. In this 
situation, section 102(2) of NEPA would not apply because the law 
removes BLM's decision making discretion. Also, this provision refers 
to situations where there is a clear and unavoidable conflict

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between NEPA compliance and another statutory authority such that NEPA 
compliance is not required. For example, if the timing requirements of 
a more recent statutory authority makes NEPA compliance impossible, 
NEPA must give way to the more recent statute.
    Similarly, the final rule clarifies that the proposed action is 
subject to the procedural requirements of NEPA and the CEQ regulations 
depending on ``the extent to which bureaus exercise control and 
responsibility over the proposed action and whether Federal funding or 
approval will be provided to implement it'' paragraph 46.100(a). The 
criteria for making this determination include, inter alia, ``when the 
bureau has a goal and is actively preparing to make a decision on one 
or more alternative means of accomplishing that goal'' paragraph 
46.100(b)(1), and ``the effects can be meaningfully evaluated'' and 
``the proposed action would cause effects on the human environment'' 
paragraph 46.100(b)(3).
    The clarifications provided in this section have been made, in 
part, in order to ensure that the rule is consistent with the Supreme 
Court's decision in Department of Transportation v. Public Citizen, 541 
U.S. 752, 770 (2004). In Public Citizen, the Court explained that a 
``but for'' causal relationship is insufficient to make an agency 
responsible for a particular effect under NEPA and the relevant 
regulations, but that there must be ``a reasonably close causal 
relationship'' between the environmental effect and the alleged cause 
and that this requirement was analogous to the ``familiar doctrine of 
proximate cause from tort law.'' 541 U.S. at 767. The Court reaffirmed 
that ``courts must look to the underlying policies or legislative 
intent in order to draw a manageable line between those causal changes 
that may make an actor responsible for an effect and those that do 
not'' and that inherent in NEPA and its implementing regulations is a 
``rule of reason.'' Id.
    Comment: Some commenters expressed concern regarding the procedural 
requirements of NEPA. One group stated that the Department's procedural 
actions should be subject to NEPA requirements regardless of whether or 
not sufficient funds are available. This group stated that if a 
proposed action is even being considered by a RO, the procedural 
requirements of NEPA must apply. Another group suggested the Department 
add an additional subsection that offers guidance whether an ``action'' 
is subject to NEPA compliance.
    Response: The Department agrees that the procedural requirements of 
NEPA apply when a proposal consistent with 40 CFR 1508.23 has been 
developed. Mere consideration of a possible project however does not 
constitute a proposed action that can be analyzed under NEPA. Rather, 
under 40 CFR 1508.23, a proposal is ripe for analysis when an agency is 
``actively preparing to make a decision.''
    When the proposed action involves funding, Federal control over the 
expenditure of the funds by the recipient is essential to determining 
what constitutes a ``Federal'' action that requires NEPA compliance. 
This is consistent with 40 CFR 1508.18(a). The issue of funding does 
not turn on the sufficiency, or lack thereof, of the funding, but on 
the degree of Federal control or influence over the use of the funds. 
The language in the final rule regarding whether a proposal is subject 
to NEPA compliance has been clarified by addressing the question of 
whether NEPA applies in paragraph 46.100(a), and when the NEPA analysis 
should be conducted in paragraph 46.100(b).
    Comment: One individual urged the Department to not add additional 
obligations that are not currently required under NEPA, particularly 
with respect to the emphasis on public participation.
    Response: This final rule adds no additional obligations not 
currently required under NEPA and the CEQ regulations. Section 46.100 
is an effort to consolidate existing requirements in 40 CFR 1508.18, 40 
CFR 1508.23, and 40 CFR 1508.25, among others. For instance in 40 CFR 
1500.2(d) CEQ requires that Federal agencies ``* * * encourage and 
facilitate public involvement in decisions which affect the quality of 
the human environment.'' Consistent with this provision, paragraph 
46.305(a) requires that a bureau must, to the extent practicable, 
provide for public notification and public involvement when an 
environmental assessment is being prepared. However, the methods for 
providing public notification and opportunities for public involvement 
are at the discretion of the RO. Individual bureaus will be able to 
provide in their explanatory and informational directives descriptions 
of ways of carrying out public notification and involvement appropriate 
to different kinds of proposed actions.
    Comment: One commenter stated that the proposed rule as written 
suggests that a NEPA review would only occur to the extent the effects 
on the human environment could be meaningfully evaluated and that the 
proposed provision at 46.100 seemed to ``conflict with situations where 
there are `unknowns' and the bureau cannot meaningfully evaluate the 
effects, but it nonetheless is necessary to move ahead with the 
proposal.'' This commenter suggested that the Department clarify that 
NEPA review will proceed and will be based on the best available data.
    Response: The Department agrees that NEPA analysis takes place when 
the effects of a proposed action can be meaningfully evaluated, as 
stated in the revised paragraph 46.100(b). Further, the Department 
appreciates the commenter highlighting the possibility of confusion 
resulting from the structure of 46.100 as proposed. As proposed, 
section 46.100 addressed both the questions of whether and when a 
proposed action is subject to the procedural requirements of NEPA, but 
without grouping the provisions addressing these two issues separately. 
In response to this comment, and upon further review, the Department 
has restructured section 46.100 to separate these two issues into 
paragraphs (a) and (b) for the sake of clarity. The revised paragraph 
46.100(b) identifies when in its development the proposed Federal 
action the NEPA process should be applied and, if meaningful evaluation 
of effects cannot occur, then the proposal is not yet ripe for analysis 
under NEPA.
    That being said, NEPA itself does not require the use of ``best 
available data;'' rather, CEQ regulations demand information of ``high 
quality'' and professional integrity. 40 CFR 1500.1, 1502.24. However, 
the Department's obligations under other authorities, such as the 
Information Quality Act Section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554), 
do require bureaus to use the best available data. While discussion of 
the Department's obligations under the Information Quality Act is 
outside the scope of this rule, the Department concurs that meaningful 
evaluation must be carried out on the basis of whatever data is 
available. The Department does not believe that this is inconsistent 
with CEQ's provision regarding those situations where information is 
incomplete or unavailable (40 CFR 1502.22). In fact, rather than 
stating that meaningful evaluation cannot take place when there are 
``unknowns'' as the commenter appears to suggest, the CEQ regulations 
provide steps to take in order that meaningful evaluation can continue 
when information is lacking; therefore, the Department does not believe

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revision of this rule is necessary to address this point.
    Comment: Several individuals responded to our request for input 
regarding the use of FONSIs based on tiered EAs where a FONSI would be, 
in effect, a finding of no significant impacts other than those already 
disclosed and analyzed in the EIS to which the EA is tiered. These 
individuals supported the concept.
    Response: The Department appreciates the comment. The Department 
has added the provision as contemplated. See section 46.140, which 
provides for the use of tiered documents. See also the detailed 
response to comments on section 46.140, below. Under this final rule a 
FONSI or FONNSI (Finding of No New Significant Impact) can be prepared 
based on an EA that is tiered to an EIS. This approach is consistent 
with CEQ regulations at 40 CFR 1508.28.
    Comment: One group recommended the Department clarify that the 
National Park Service (NPS) should prepare an EA or EIS as part of its 
submission to the National Capital Planning Commission.
    Response: This comment was specifically referring to situations 
where a particular type of proposed action may be subject to 
categorical exclusion (CX or CE) under the Department's NEPA procedures 
but not under the NEPA procedures of another Federal agency such as, in 
this case, the NEPA procedures of the National Capital Planning 
Commission (NCPC). While, as a general rule, each Federal agency is 
responsible for compliance with NEPA consistent with both CEQ's 
regulations and its own procedures for implementing NEPA, the 
particular issue raised concerns a very specific situation involving 
two Federal agencies acting under very specific and distinct 
authorities. Therefore, the Department declines to address this comment 
more specifically and does not believe a specific provision is 
necessary in general Departmental procedures.
    Section 46.105 Using a contractor to prepare environmental 
documents. This section explains how bureaus may use a contractor to 
prepare any environmental document in accordance with the standards of 
40 CFR 1506.5(c).
    Comment: Some commenters wanted the Department to clarify 
requirements for working with a contractor. Some stated that strict 
requirements should be put into place for selection of a contractor to 
ensure the adequacy of documents, independent evaluation, and sound 
management practices. One individual stated that the Department should 
adopt existing CEQ guidance on the use and selection of contractors.
    Response: The Department complies with CEQ regulations and follows 
existing CEQ guidance on the selection and use of contractors. Each 
bureau is responsible for determining how its officials will work with 
contractors, subject to the CEQ regulations and guidance. In any event, 
the RO is responsible for, or is the approving official for, the 
adequacy of the environmental document. The Department does not believe 
any further clarification of the rule is necessary.
    Comment: Another commenter applauded the Department for a ``clear 
articulation of the use of contractors for NEPA document preparation.''
    Response: The Department appreciates the comment.
    Section 46.110 Incorporating consensus-based management. This 
section provides a definition of consensus-based management and 
incorporates this approach as part of the Department's NEPA processes. 
Paragraph 46.110(e), requiring bureaus to develop directive to 
implement section 46.110 has been removed from the final rule as not 
appropriate for regulatory treatment.
    Comment: Most commenters supported the Department's proposed rule 
on consensus-based management. However, many individuals expressed 
concerns regarding the breadth of the definition of consensus-based 
management. Because of the lack of concrete provisions within this 
section, many individuals suggested the NEPA process could become 
``unnecessarily time consuming and costly.'' Several individuals stated 
that the word ``consensus'' should be taken out of the proposed rule 
because ``consensus'' suggests interested parties will determine the 
preferred alternative. Other individuals suggested that the term 
``consensus'' has the potential to create ``unreasonable expectations 
in the public.'' One group suggested replacing ``consensus'' with 
``open and transparent community involvement and input.'' Another 
suggestion for the replacement of the word ``consensus'' was 
``collaboration.'' Several individuals stated that the proposal for 
consensus-based management should be withdrawn and that the Department 
should continue following the current CEQ regulations on collaboration. 
Individuals suggested that the Department clearly define what 
constitutes community.
    Response: The Department has revised section 46.110, and added a 
definition for ``consensus-based management'' to this section. The 
definition comes from the existing ESM03-7, and expresses existing 
Department policy. The definition of ``consensus-based management'' has 
been modified in order to render it in regulatory language. Many of the 
commenters seem to assume that in the absence of consensus the 
Department will not take action. This is not the case. While the RO is 
required to consider the consensus-based management alternative 
whenever practicable, at all times discretion remains with the RO 
regarding decisions, if any, to be made with respect to the proposed 
action. While the Department requires the use of consensus-based 
management, whenever practicable, we have added a provision that if the 
RO determines that the consensus-based alternative should not be the 
preferred alternative, an explanation of the rationale behind this 
decision is to be incorporated in the environmental document.
    Comment: Some commenters stated that the technique of consensus-
based management may be impossible to implement. One group was 
particularly concerned with the definition of ``interested party.'' 
They believe it may be impossible for the Department to determine who 
the interested parties are and that the process of managing interested 
parties may be cumbersome and add expense and time onto NEPA projects. 
This group suggested that the Department develop a clear and concise 
definition of ``interested parties.''
    Response: The Department acknowledges that consensus may not always 
be achievable or consistent with the Department's legal obligations or 
policy decisions. However, the Department requires the use of 
consensus-based management whenever practicable. CEQ regulations direct 
agencies to encourage and facilitate public involvement in the NEPA 
process. 40 CFR 1500.2(d), 40 CFR 1506.6. The Department agrees that 
use of the term ``interested parties'' may cause confusion. The 
Department has replaced the term ``interested parties'' with ``those 
persons or organizations who may be interested or affected'' which is 
used in the CEQ regulations. See for example 40 CFR 1503.1.
    Comment: Several individuals stated that it is vital that the 
interests of the ``regional community'' be taken into account during 
the NEPA process. One commenter applauded the Department for including 
consensus-based management in the proposed rule and for taking 
additional steps to support the ``cooperative conservation policy.'' 
One group believed this proposal would ``provide an avenue for impacted 
local governments and citizens to become

[[Page 61297]]

involved in the agency review process, and have their interests 
acknowledged in a meaningful way, and achieve a win-win final 
decision.''
    Response: The Department appreciates the comment and agrees that 
the interests of the regional and local community should be taken into 
account during the NEPA process.
    Comment: Several commenters stated that the Department needs to add 
a provision to the rule that clearly spells out the role of the RO. 
This provision would include directives on selecting alternatives.
    Response: The Department has defined ``Responsible Official'' under 
section 46.30. The Department has also specified in the definition that 
the RO is responsible for NEPA compliance (which includes the selection 
of alternatives). The particular identity of the RO for any given 
proposed action is determined by the relevant statute, regulation, DM, 
or specific delegation document that grants the authority for that 
particular action.
    Comment: Some individuals also stated that a process should be 
included to assure the public that the community's work is reflected in 
the evaluation of the proposed action and the final decision, even if 
the community alternative is not eventually selected as the agency's 
preferred alternative. One group suggested that the Department define 
what constitutes ``assurance'' that participant work is considered in 
the decision-making process. Several groups stated that the community 
alternative must fully comply with NEPA, CEQ regulations, and all 
Department policies and procedures in order to be considered by the RO. 
Several groups refer to court cases stating that NEPA ``does not 
require agencies to consider alternatives that are not feasible or 
practical.'' Individuals would like the Department to explain what a 
community alternative consists of, how it will be evaluated, who is the 
relevant community, and how many community alternatives can be proposed 
for each project. They also expressed concern that the proposed rule 
suggests all alternatives submitted must be analyzed in detail.
    Response: Section 46.110 provides for the evaluation of reasonable 
alternatives presented by persons, organizations or communities who may 
be interested or affected by a proposed action in the NEPA document 
even if the RO does not select that alternative for implementation. The 
final rule clarifies that, while all or a reasonable number of examples 
covering the full spectrum of reasonable alternatives may be 
considered, a consensus-based management alternative (if there are any 
presented) may only be selected if it is fully consistent with the 
purpose of and need for the proposed action, as well as with NEPA 
generally, the CEQ regulations, and all applicable statutory and 
regulatory provisions, as well as Departmental and bureau written 
policies and guidance could be selected. It also provides that bureaus 
must be able to show that participants' or community's input is 
reflected in the evaluation of the proposed action and the final 
decision. Therefore, the Department believes that the final rule 
adequately addresses these comments.
    Comment: Some individuals indicated that NEPA does not require 
consensus and stated the proposed rule goes against the direction of 
the CEQ regulations. Some commenters directed the Department to review 
CEQ's ``Collaboration in NEPA'' handbook. Several groups recommended 
that the Department include and review the Environmental Statement 
Memorandum No. ESM03-7.
    Response: The Department agrees neither NEPA nor the CEQ 
regulations require consensus. This new regulation requires the use of 
consensus-based management whenever practicable. Consensus-based 
management is not inconsistent with the intent of NEPA and the CEQ 
regulations. The Department has reviewed CEQ's publication 
``Collaboration in NEPA--A Handbook for NEPA Practitioners'' available 
at https://ceq.eh.doe.gov/nepa/nepapubs/Collaboration_in_NEPA_
Oct2007.pdf. While consensus-based management, like collaboration, can 
be a useful tool, the Department recognizes that consensus-based 
management may not be appropriate in every case. The final rule does 
not set consensus-based management requirements, including timelines or 
documentation of when parties become involved in the process. Similar 
to collaborative processes, consensus-based management processes, like 
public involvement and scoping, will vary depending on the 
circumstances surrounding a particular proposed action. Some situations 
will require a lot of time and others will not. Regardless of the level 
or kind of public involvement that takes place, at all times the RO 
remains the decision maker.
    Comment: One group suggested that the Department remove paragraph 
(b) because it is ``duplicative, ambiguous, and unnecessary.'' They 
believed this section simply restates the requirement in section 
1502.14 of the CEQ regulations that requires agencies evaluate ``all 
reasonable alternatives.'' They also expressed concern that community-
based alternatives may be given preferential weight over the project 
proponent's alternative.
    Response: The Department does not agree that the section is 
unnecessary and duplicative or that it simply restates the requirement 
in section 1502.14 of the CEQ regulations. Although there are some 
common elements to 40 CFR 1502.14 and paragraph 46.110(b), this 
paragraph requires the use of consensus-based management in NEPA 
processes and decision-making whenever practicable. The RO is 
responsible for an analysis of the reasonable alternatives, and the 
NEPA process allows for the selection of an alternative based on the 
consideration of environmental effects, as well as the discretionary 
evaluation of the RO. The intent of this provision is that alternatives 
presented by those persons or organizations that may be interested or 
affected, including applicants, be given consideration.
    Comment: One group wanted to see a mandate added to the proposed 
rule that requires the Department to work with tribal governments. One 
individual suggested that the word ``considered'' should be changed to 
``adopted,'' ``accepted,'' or ``implemented'' to ensure consideration 
is given to an alternative proposed by a tribe.
    Response: The Department has a government-to-government 
relationship with federally-recognized tribes and as such specifically 
provides for consultation, coordination and cooperation. We consider 
all alternatives, including those proposed by the tribes, as part of 
the NEPA process, but cannot adopt, accept, or implement any 
alternative before full evaluation of all reasonable alternatives. 
Therefore, the Department declines to adopt the group's recommendation.
    Section 46.113 Scope of the analysis. This section, as proposed, 
addressed the relationships between connected, cumulative, and similar 
actions and direct, indirect and cumulative impacts. This section has 
been removed from the final rule.
    Comment: Some commenters stated that the proposed rule is not clear 
with respect to the issue of what projects need to be included in the 
scope of analysis. One individual suggested that the Department should 
include language in the proposed rule clarifying that the effects of 
connected, cumulative and similar actions must be included in the 
effects analysis as indirect or cumulative effects. These actions do 
not become part of the proposed action, and alternatives for these 
actions need not be considered in the analysis.

[[Page 61298]]

    One individual suggests that the Department change the language to 
provide guidance that allows bureaus to determine which projects need 
to be included in a cumulative effects analysis. They recommend clearly 
defining ``connected,'' ``cumulative,'' ``direct,'' and ``indirect.'' 
If these changes are made, some believe this rule will provide 
uniformity, consistency, and predictability to the NEPA process.
    Another individual suggested ``should'' be removed from this 
section. They expressed concern that the current wording implies that 
connected and cumulative action analysis is optional.
    One commenter recommended that this section should be deleted in 
its entirety because it is inconsistent with CEQ regulations. They 
recommended that the Department revise the section to reflect the 
difference between the treatment of connected, cumulative, and similar 
actions and the treatment of the effects of such actions.
    Response: In light of the confusion reflected in several of the 
comments, as well as upon further consideration, the Department has 
eliminated this provision from the final rule. Bureaus will continue to 
follow CEQ regulations regarding scope of analysis at 40 CFR 1508.25, 
as well as bureau specific directives.
    Section 46.115 Consideration of past actions in the analysis of 
cumulative effects. This section incorporates CEQ guidance issued on 
June 24, 2005 that clarifies how past actions should be considered in a 
cumulative effects analysis. The Department has elected not to repeat 
the specific provisions of the CEQ guidance in the final rule. 
Responsible Officials are directed to refer to the applicable CEQ 
regulations and the June 24, 2005 CEQ guidance.
    Comment: Several groups commended the Department for its efforts to 
bring clarity to the NEPA cumulative effects analysis.
    Response: The Department appreciates the comments.
    Comment: Several groups stated that CEQ regulations do not contain 
a ``significant cause-and-effect'' filter excluding projects from 
cumulative impact analysis because the project's effects are minor. One 
group was concerned that the proposed rule contains measures that would 
``constrain the usefulness of agencies' analyses of cumulative 
impacts,'' and would violate CEQ regulations. This group suggested that 
the proposed rule would constrain the scope of actions whose effects 
should be considered in a cumulative impacts analysis.
    Some individuals stated that the Department is proposing to curtail 
the consideration and evaluation of past actions when proposing future 
activities. They stated that the agencies and public should be informed 
of potential environmental consequences before decisions are made. 
Others suggested this section does not provide guidance to the RO on 
what past actions and proposed future actions should be included in the 
analysis. Groups stated that a Department field office has no inherent 
expertise in determining which actions are relevant to a cumulative 
impacts analysis and should therefore not be vested with such 
discretion. Several groups suggested that the entire section should be 
removed from the proposed rule, and that the Department should conduct 
environmental analyses pursuant to CEQ regulations. One individual 
stated ``NEPA is intended to ensure that bureaus make sound decisions 
informed by the ``cumulative and incremental environmental impacts'' of 
the proposed projects and how those impacts will actually affect the 
environment.'' Several groups stated that vague language for past 
actions to be included in cumulative impact analysis will result in 
more confusion and litigation.
    Response: At section 46.115, this final rule incorporates guidance 
on the analysis of past actions from the June 24, 2005 CEQ Guidance on 
the Consideration of Past Actions in Cumulative Effects Analysis, which 
may be found at https://ceq.eh.doe.gov/nepa/regs/Guidance_on_CE.pdf. 
This section is consistent with existing CEQ regulations, which use the 
terms ``effects'' and ``impacts'' synonymously and define cumulative 
impact as ``the incremental impact of an action when added to other 
past, present, and reasonably foreseeable future actions'' (40 CFR 
1508.7).
    The focus of the CEQ guidance incorporated in this final rule is on 
the consideration of useful and relevant information related to past 
actions when determining the cumulative effects of proposals and 
alternatives. Bureaus will conduct cumulative effects analyses 
necessary to inform decision-making and disclose environmental effects 
in compliance with NEPA. A ``significant cause-and-effect'' filter is 
specifically provided for in the CEQ guidance.
    To clarify the Department's commitment to follow CEQ guidance 
concerning consideration of past actions, the final rule at section 
46.115 is revised to state, ``When considering the effects of past 
actions as part of a cumulative effects analysis, the Responsible 
Official must analyze the effects in accordance with 40 CFR 1508.7 and 
in accordance with relevant guidance issued by the Council on 
Environmental Quality, such as `The Council on Environmental Quality 
Guidance Memorandum on Consideration of Past Actions in Cumulative 
Effects Analysis' dated June 24, 2005, or any superseding Council on 
Environmental Quality guidance.'' The Department believes that by 
incorporating CEQ's guidance we have included sufficient specificity in 
the rule; any other ``how to'' information may be provided through the 
Departmental chapters in the DM, environmental statement memoranda 
series, or bureau-specific explanatory and informational directives.
    Comment: Groups expressed concern over the definition of 
``reasonably foreseeable future actions'' and suggested this definition 
should be removed from the final proposal. They understood that the 
Department cannot conduct a ``crystal ball'' analysis but that actions 
should be considered in the analysis even if decisions and funding for 
specific future proposals does not exist.
    Response: The Department agrees. In response, the Department has 
added specificity and provided guidance on what should be considered a 
reasonably foreseeable future action in order to ensure that 
speculative activities or actions are not incorporated into the 
analysis while actions that may inform the RO's analysis of cumulative 
impacts for the proposed action are included, even if they are not yet 
funded, proposed, or the subject of a decision identified by the 
bureau. This approach is consistent with CEQ regulations.
    Section 46.120 Using existing environmental analyses prepared 
pursuant to NEPA and the Council on Environmental Quality regulations. 
This section explains how to incorporate existing environmental 
analysis previously prepared pursuant to NEPA and the CEQ regulations 
into the analysis being prepared.
    Comment: Several individuals agreed that using existing 
documentation will reduce lengthy analysis and duplication of work and 
applaud the Department for including this section in the proposed rule. 
However, commenters would like a provision added to the section to 
ensure the supporting documentation is provided to the public online 
and in the bureau's office.
    Response: The Department agrees that any information relied upon in 
a NEPA analysis should be publicly available, either independently or 
in connection with the specific proposed action at

[[Page 61299]]

issue, and has so stated in section 46.135.
    Section 46.125 Incomplete or unavailable information. CEQ 
regulations at 40 CFR 1502.22 provide ``When an agency is evaluating 
reasonably foreseeable significant adverse effects on the human 
environment in an environmental impact statement and there is 
incomplete or unavailable information, the agency shall always make 
clear that such information is lacking'' and sets out steps that 
agencies must follow in these circumstances. This section clarifies 
that the overall costs of obtaining information referred to in 40 CFR 
1502.22 are not limited to the estimated monetary cost of obtaining 
information unavailable at the time of the EIS, but can include other 
costs such as social costs that are more difficult to monetize. 
Specifically, the Department requested comments on whether to provide 
guidance on how to incorporate non-monetized social costs into its 
determination of whether the costs of incomplete or unavailable 
information are exorbitant. The Department also requested comments on 
what non-monetized social costs might be appropriate to include in this 
determination; e.g., social-economic and environmental (including 
biological) costs of delay in fire risk assessments for high risk fire-
prone areas.
    Comment: Many commenters expressed concern with the incomplete or 
unavailable information section. They stated that the rule does not 
provide guidance to bureaus on how to address ``non-monetized social 
costs.'' Some individuals stated that critical information is missing 
from this section, such as an exclusive list of non-monetized social 
costs. Several groups suggested the Department expand on CEQ regulation 
section 1502.22 which addresses agency procedure in the face of 
incomplete or unavailable information. Groups stated that the 
Department should ``direct its bureaus to specifically evaluate the 
risks of proceeding without relevant information, including risks to 
sensitive resources.'' Some suggested the Department provide their 
findings to the public so the public can provide meaningful comment and 
scrutiny. They stated that this approach would be more consistent with 
case law and with CEQ regulations. Groups stated that if the section 
remains ``as is,'' the Department has provided ``the bureaus with an 
incentive to cease collecting information and providing it to the 
public.'' One group stated that the proposed rule encourages agencies 
to find reasons not to obtain information that they have already 
acknowledged is relevant to reasonably foreseeable significant impacts 
and that this message is contrary to NEPA and CEQ regulations. Several 
other commenters noted that the proposed rule provides clarity in 
assessing the monetary costs of gathering information and is consistent 
with CEQ regulations.
    Response: The Department believes that section 46.125 provides 
guidance sufficient to implement 40 CFR 1502.22 in so far as CEQ's 
regulation addresses this issue of costs. The Department has added some 
language in response to comments regarding what sorts of considerations 
constitute ``non-monetized social costs.'' However, the Department 
believes that other factors that may need to be weighed include the 
risk of undesirable outcomes in circumstances where information is 
insufficient or incomplete. Paragraph 1502.22(b) specifically provides 
for the steps the Department will take if the overall cost of obtaining 
the data is exorbitant or the means to obtain the data are not known.
    Comment: One commenter suggested that the Department must 
``utiliz[e] public comment and the best available scientific 
information'' and recommended including a provision to this effect in 
the final rule.
    Response: There is no question that public involvement is an 
integral part of the NEPA process and can take a variety of forms, 
depending on the nature of the proposed action and the environmental 
document being prepared; therefore the final rule includes several 
provisions addressing public involvement. There is, however, some level 
of confusion regarding the data standard applicable to the type of 
information NEPA requires. The assertion is frequently made in court 
cases, as the commenter suggests here, that NEPA analyses must use the 
``best available science'' to support their conclusions. In fact, the 
``best available science'' standard comes from section 7 of the 
Endangered Species Act, specifically 16 U.S.C. 1536(a)(2), which 
requires that ``each agency shall use the best scientific and 
commercial data available'' when evaluating a proposed action's impact 
on an endangered species. In addition, the ``best available science'' 
standard is used by the United States Department of Agriculture Forest 
Service's regulations implementing the National Forest Management Act 
of 1976, 16 U.S.C. 1600 et seq. (see Final Rule and Record of Decision, 
National Forest System Land Management Planning Part III, 73 Fed. Reg. 
21468 (Apr. 21, 2008) (to be codified at 36 CFR Part 219)). NEPA 
imposes a different standard: rather than insisting on the best 
scientific information available, CEQ regulations demand information of 
``high quality'' and professional integrity. 40 CFR 1500.1, 1502.24. 
Therefore, the Department declines to accept the commenter's 
recommendation.
    Section 46.130 Mitigation measures in analyses. This section has 
been clarified from the proposed rule. The revision clarifies how 
mitigation measures and environmental best management practices are to 
be incorporated into and analyzed as part of the proposed action and 
its alternatives.
    Comment: Most individuals stated that the Department should address 
mitigation measures in the proposed rule. These individuals explained 
that, in order to provide interested parties an accurate portrayal of 
potential effects, it is necessary to include all mitigation measures 
in the impacts analysis. Several individuals indicate the language in 
the proposed rule is broad and unclear. Several groups opposed the 
proposed rule in its current form and suggested that the Department 
should revise and narrow the rule to ``clarify that possible mitigation 
measures are discussed in NEPA documents in order to help inform an 
agency's decision, but reflect the well-settled legal principle that 
the agency need not guarantee that particular mitigation measures be 
implemented or that such mitigation measures be successful.'' One group 
suggested that the Department revise the proposed rule to clarify that 
NEPA does not require agencies to adopt particular mitigation measures 
or to guarantee the success of the mitigation plans. One group stated 
that avoiding significant environmental effects should be the primary 
goal in the development of any proposed action and mitigation should be 
a final course of action when all other attempts to avoid impacts have 
been exhausted.
    Response: The Department agrees with the comments about the 
importance of mitigation; the provision addressing mitigation is 
carried forward into this final rule. The Department has, however, 
refined the language of the provision for clarity. The Department 
agrees that NEPA does not require bureaus to adopt particular 
mitigation measures and that it is not possible to guarantee the 
success of mitigation plans, but does not believe revision to the final 
rule reflecting this understanding is necessary.
    Comment: One group argued that including mitigation measures in the 
effects analysis is crucial to demonstrate that potential effects can 
be mitigated through the use of stipulations,

[[Page 61300]]

conditions of approval, and best management practices. They did not 
believe it necessary to ``strip'' mitigation measures or best 
management practices from an applicant's proposal just for the sake of 
analyzing the stripped down version.
    Response: It was not the Department's intent that applicants' 
proposals be stripped of all best management practices or mitigation 
measures. The Department has included language to clarify this point. 
Independent of NEPA, any application must provide a proposal that 
includes any ameliorative design elements (for example, stipulations, 
conditions, or best management practices) required to make that 
proposal conform to legal requirements. In addition, the applicant's 
proposal presented to the bureau for decision-making will include any 
voluntary ameliorative design element(s) that are part of the 
applicant's proposal. Therefore, the analysis of the applicant's 
proposal, as an alternative, includes, and does not strip out, these 
elements. Should the bureau wish to consider and/or require any 
additional mitigation measures other than the design elements included 
in the applicant's proposal, the effects of such mitigation measures 
must also be analyzed. This analysis can be structured as a matter of 
consideration of alternatives to approving the applicant's proposal or 
as separate mitigation measures to be imposed on any alternative 
selected for implementation.
    Section 46.135 Incorporation of referenced documents into NEPA 
analysis. This section establishes procedures for incorporating 
referenced documents as provided for in the CEQ regulations at 40 CFR 
1502.21.
    No comments were received on this section, but clarifying changes 
have been made in this final rule.
    Section 46.140 Using tiered documents. This section clarifies the 
use of tiering. As contemplated in the preamble to the rule, and in 
response to favorable comments, the Department has added a new 
subsection clarifying that an environmental assessment may be prepared, 
and a finding of no significant impact reached, for a proposed action 
with significant effects, whether direct, indirect, or cumulative, if 
the environmental assessment is tiered to a broader environmental 
impact statement which fully analyzed those significant effects. 
Tiering to the programmatic or broader-scope environmental impact 
statement would allow the preparation of an environmental assessment 
and a finding of no significant impact for the individual proposed 
action, so long as any previously unanalyzed effects are not 
significant. The finding of no significant impact, in such 
circumstances, would be, in effect, a finding of no significant impact 
other than those already disclosed and analyzed in the environmental 
impact statement to which the environmental assessment is tiered. The 
finding of no significant impact in these circumstances may also be 
called a ``finding of no new significant impact.'' In addition, the 
provision requiring bureaus to review existing directives addressing 
tiering, and listing topics that must be included in such directives 
has been removed from the final rule as not appropriate for regulatory 
treatment. The numbering of the subsections has been adjusted 
accordingly.
    Comment: One group supported using existing analyses to avoid 
duplication of effort and to minimize costs. However, they stated that 
the Department should clearly indicate that existing data does not need 
to be supplemented with new data if there is no evidence that the 
current conditions differ from the conditions in which the existing 
data was developed.
    Response: The Department concurs with the comment, but believes 
that it has been addressed in paragraph 46.140(a). As contemplated in 
the preamble to the rule, and in response to favorable comments, the 
Department has added a new paragraph 46.140(c).
    Section 46.145 Using adaptive management. This section incorporates 
adaptive management as part of the NEPA planning process.
    Comment: Most commenters supported the concept of adaptive 
management. However, they stated that the Department has not clearly 
explained how adaptive management will be incorporated into the NEPA 
process. One individual believed adaptive management could be a useful 
tool in allowing ``mid-course corrections'' without requiring new or 
supplemental NEPA review. Several groups suggest that the Department 
clarify that adaptive management is only appropriate where risk of 
failure wil