[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: http://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 
(http://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 (http://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 (http://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

[[Page 127]]

conducting concurrent rather than consecutive analyses.

ESM 03-6, Procedures for Implementing Adaptive Management Practices 
(http://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 (http://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 
(http://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 
(http://cooperativeconservation.gov/sessions/index.html), 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; http://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,'' (http://
ceq.eh.doe.gov/ntf/report/index.html) 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 (http://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

[[Page 128]]

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, http://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, http://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, http://
ceq.eh.doe.gov/nepa/regs/OMB_CEQ_Joint_Statement.pdf), and 
``collaboration'' (Background and Other Cooperative Conservation 
Activities, http://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

[[Page 129]]

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

[[Page 130]]

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.

[[Page 131]]

    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: http://
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.

[[Page 133]]

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 actions is useful and relevant to the 
required analysis of cumulative effects. Cataloging past actions and 
specific information about the direct and indirect effects of their 
design and implementation could in some contexts be useful to predict 
the cumulative effects of the proposal. The CEQ regulations, however, 
do not require bureaus to catalogue or exhaustively list and analyze 
all individual past actions. Simply because information about past 
actions may be available or obtained with reasonable effort does not 
mean that it is relevant and necessary to inform decisionmaking.


Sec.  46.120  Using existing environmental analyses.

    (a) The Responsible Official should use existing analyses for 
assessing the impacts of a proposed action and any alternatives as 
allowed by this section.
    (b) If existing analyses include data and assumptions appropriate 
for the analysis at hand, the Responsible

[[Page 135]]

Official should use the existing analyses where feasible.
    (c) An existing environmental analysis may be used if the 
Responsible Official determines, with appropriate supporting 
documentation, that it adequately assesses the environmental effects of 
the proposed action and reasonable alternatives. The supporting record 
must include an evaluation of whether new circumstances, new 
information, changes in the action or its impacts not previously 
analyzed, warrant new analysis.
    (d) Bureaus should make the best use of existing NEPA documents and 
avoid redundancy and unneeded paperwork through supplementing, 
incorporating by reference, or adopting previous environmental 
analyses.


Sec.  46.125  Incomplete or unavailable information.

    In 40 CFR 1502.22, the over-all costs of obtaining information 
being exorbitant refers not only to monetary costs, but can include 
other non-monetized social costs when appropriate.


Sec.  46.130  Mitigation measures in analyses.

    The analysis of the proposed action and any alternatives must 
include an analysis of the effects of the proposed action or 
alternative without additional mitigation as well as analysis of the 
effects of any other appropriate mitigation measures or best management 
practices that are considered for addition to the proposed action or 
alternatives. The additional mitigation measures can be analyzed either 
as elements of alternatives or in a separate discussion of mitigation.


Sec.  46.135  Using incorporation by reference.

    (a) The Responsible Official must determine that the analysis and 
assumptions used in the reference document are appropriate for the 
analysis at hand.
    (b) Citations of specific information or analysis from other source 
documents must include the pertinent page numbers.
    (c) All literature references must be listed in the bibliography. 
Literature references that are incorporated by reference shall be 
readily available for review; literature references that are not 
readily available shall be made available for review as part of the 
administrative record supporting the proposed action.


Sec.  46.140  Using tiered documents.

    A NEPA document that tiers to a broader NEPA document in accordance 
with 40 CFR 1508.28 must include a finding that the conditions and 
environmental effects described in the broader NEPA document are still 
valid.
    (a) Where the impacts of the narrower action are identified and 
analyzed in the broader NEPA document, no further analysis is 
necessary.
    (b) To the extent that any relevant analysis in the broader NEPA 
document is out-of-date or otherwise inadequate, the tiered NEPA 
document must explain this and provide any necessary analysis.
    (c) Bureaus will review their existing guidance concerning the use 
of tiering, and ascertain whether additional guidance is needed. 
Guidance must include, but is not limited to, guidance on finding and 
using similar information, examples of tiered analyses, a set of 
procedural steps to make the most of tiered analyses, knowledge of when 
to use previous material, and how to use tiered analyses without 
sacrificing references to original sources.


Sec.  46.145  Using adaptive management.

    Bureaus should use adaptive management as part of their decision 
making processes, as appropriate, particularly in circumstances where 
long-term impacts may be uncertain and future monitoring will be needed 
to make necessary adjustments in subsequent implementation decisions. 
The NEPA analysis conducted in support of a bureau's decision to adopt 
an adaptive management approach should identify the range of management 
options that may be taken in response to the results of monitoring, and 
should analyze the effects of such options. The environmental effects 
of any adaptive management strategy must be evaluated in this or 
subsequent NEPA analysis.


Sec.  46.150  Emergency responses.

    (a) If the Responsible Official determines that an emergency exists 
that makes it necessary to take emergency actions before completing a 
NEPA analysis and documentation in accordance with the provisions in 
subparts D and E of this part, then these provisions apply.
    (b) The Responsible Official may take emergency actions necessary 
to control the immediate impacts of the emergency to mitigate harm to 
life, property, or important resources. When taking such actions, the 
Responsible Official shall take into account the probable environmental 
consequences of the emergency action and mitigate foreseeable adverse 
environmental effects to the extent practical.
    (c) If the Responsible Official determines that proposed emergency 
actions, beyond actions noted in paragraph (b) of this section, are not 
likely to have significant environmental impacts, the Responsible 
Official shall document that determination in an EA and finding of no 
significant impact (FONSI) prepared in accordance with this regulation, 
unless categorically excluded (subpart C of this part). If the 
Responsible Official finds that the nature and scope of the subsequent 
actions related to the emergency require taking such proposed actions 
prior to completing an EA and FONSI, the Responsible Official shall 
consult with the Department about alternative arrangements for NEPA 
compliance. Consultation with the Department must be coordinated 
through the appropriate bureau's office.
    (d) If the Responsible Official determines that proposed emergency 
actions, beyond actions noted in paragraph (b) of this section, are 
likely to have significant environmental impacts, then the Responsible 
Official shall consult with CEQ, through the appropriate bureau office 
and the Department, about alternative arrangements as soon as possible. 
Alternative arrangements address the proposed actions necessary to 
control the immediate impacts of the emergency. Other proposed actions 
remain subject to NEPA analysis and documentation in accordance with 
this regulation.


Sec.  46.155  Consultation, coordination, and cooperation with other 
agencies and organizations.

    (a) The Responsible Official must whenever possible:
    (1) Consult, coordinate, and cooperate with relevant State, local, 
and tribal governments and other bureaus and Federal agencies 
concerning the environmental effects of bureau plans, programs, and 
activities within the jurisdictions or related to the interests of 
these outside entities; and
    (2) Include consensus-based management (see Sec.  46.110) and, when 
doing so, comply with the applicable provisions of the Federal Advisory 
Committee Act (FACA).
    (b) Bureaus must develop procedures to implement this section.


Sec.  46.160  Limitations on actions during the NEPA analysis process.

    During the preparation of a program or plan NEPA document, the 
Responsible Official may undertake any major Federal action within the 
scope of, and analyzed in the existing NEPA document supporting the 
current plan or program, so long as there is adequate NEPA 
documentation to support the individual action.

[[Page 136]]

Sec.  46.165  Ensuring public involvement.

    Bureaus should develop and implement procedures in accordance with 
this part to ensure:
    (a) The fullest practical provision of timely public information 
about bureau proposed actions that have environmental impacts, 
including information on the environmental impacts of alternative 
courses of action; and
    (b) Appropriate public involvement in the development of NEPA 
analyses and documents.


Sec.  46.170  Environmental effects abroad of major Federal actions.

    (a) In order to facilitate informed and responsible decision-
making, the Responsible Official having ultimate responsibility for 
authorizing and approving proposed actions encompassed by the 
provisions of Executive Order (E.O.) 12114 shall follow the provisions 
and procedures of that E.O. E.O. 12114 represents the United States 
government's exclusive and 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.
    (b) When implementing E.O. 12114, bureaus shall coordinate with the 
Department. The Department shall then consult with the Department of 
State, which shall coordinate all communications by the Department with 
foreign governments concerning environmental agreements and other 
arrangements in implementing E.O. 12114.

Subpart C--Initiating the NEPA Process


Sec.  46.200  Applying NEPA early.

    (a) For any proposed Federal action (40 CFR 1508.23 and 1508.18) 
that may have environmental impacts, bureaus must coordinate, as early 
as feasible, with:
    (1) Any other bureaus or Federal agencies, State, local, and tribal 
governments having jurisdiction by law or special expertise; and
    (2) Appropriate Federal, State, local, and tribal governments 
authorized to develop and enforce environmental standards or to manage 
and protect natural resources or other aspects of the human 
environment.
    (b) Bureaus must solicit the participation of all interested 
parties and organizations as early as possible, such as at the time an 
application is received, or when the bureau initiates the NEPA process 
for a proposed action.
    (c) Bureaus should provide, where practicable, any appropriate 
community-based training to reduce costs, prevent delays, and 
facilitate and promote efficiency in the NEPA process.
    (d) Bureaus should inform private or non-Federal applicants, to the 
extent feasible, of:
    (1) Any appropriate environmental information that the applicants 
must include in their applications; and
    (2) Any consultation with other Federal agencies, or State, local, 
or tribal governments that the applicant must accomplish before or 
during the application process.


Sec.  46.205  Actions categorically excluded from further NEPA review.

    CXs are a group of actions that have no significant individual or 
cumulative effect on the quality of the human environment.
    (a) Except as provided in paragraph (c) of this section, if an 
action is covered by a Departmental CX, the bureau is not required to 
prepare an EA (see subpart D of this part) or an EIS (see subpart E of 
this part).
    (b) The actions listed in Sec.  46.210 are categorically excluded, 
Department-wide, from preparation of EAs or EISs.
    (c) The CEQ Regulations at 40 CFR 1508.4 require agency procedures 
to provide for extraordinary circumstances in which a normally excluded 
action may have a significant environmental effect and require 
additional analysis and action. Section 46.215 lists the extraordinary 
circumstances under which actions otherwise covered by a CX require 
analyses under NEPA.
    (1) Any action that is normally categorically excluded must be 
evaluated to determine whether it meets any of these extraordinary 
circumstances, in which case, further analysis and environmental 
documents must be prepared for the action.
    (2) Bureaus must work within existing administrative frameworks, 
including any existing programmatic agreements, when deciding how to 
apply any of the Sec.  46.215 extraordinary circumstances.
    (d) Congress may establish CXs by legislation, in which case the 
terms of the legislation determine how to apply the CX.


Sec.  46.210  Listing of Departmental CXs.

    The following actions are categorically excluded under Sec.  
46.205(b), unless any of the extraordinary circumstances in Sec.  
46.215 apply:
    (a) Personnel actions and investigations and personnel services 
contracts.
    (b) Internal organizational changes and facility and bureau 
reductions and closings.
    (c) Routine financial transactions including such things as 
salaries and expenses, procurement contracts (e.g., in accordance with 
applicable procedures and Executive Orders for sustainable development 
or green procurement), guarantees, financial assistance, income 
transfers, audits, fees, bonds, and royalties.
    (d) Departmental legal activities including, but not limited to, 
such things as arrests, investigations, patents, claims, and legal 
opinions. This does not include bringing judicial or administrative 
civil or criminal enforcement actions which are outside the scope of 
NEPA in accordance with 40 CFR 1508.18(a).
    (e) Nondestructive data collection, inventory (including field, 
aerial, and satellite surveying and mapping), study, research, and 
monitoring activities.
    (f) Routine and continuing government business, including such 
things as supervision, administration, operations, maintenance, 
renovations, and replacement activities having limited context and 
intensity (e.g., limited size and magnitude or short-term effects).
    (g) Management, formulation, allocation, transfer, and 
reprogramming of the Department's budget at all levels. (This does not 
exclude the preparation of environmental documents for proposals 
included in the budget when otherwise required.)
    (h) Legislative proposals of an administrative or technical nature 
(including such things as changes in authorizations for appropriations 
and minor boundary changes and land title transactions) or having 
primarily economic, social, individual, or institutional effects; and 
comments and reports on referrals of legislative proposals.
    (i) Policies, directives, regulations, and guidelines:
    (1) That are of an administrative, financial, legal, technical, or 
procedural nature; or
    (2) Whose environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will later be 
subject to the NEPA process, either collectively or case-by-case.
    (j) Activities which are educational, informational, advisory, or 
consultative to other agencies, public and private entities, visitors, 
individuals, or the general public.
    (k) Hazardous fuels reduction activities using prescribed fire not 
to exceed 4,500 acres, and mechanical

[[Page 137]]

methods for crushing, piling, thinning, pruning, cutting, chipping, 
mulching, and mowing, not to exceed 1,000 acres. Such activities:
    (1) Shall be limited to areas--
    (i) In wildland-urban interface; and
    (ii) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, 
outside the wildland-urban interface;
    (2) Shall be identified through a collaborative framework as 
described in ``A Collaborative Approach for Reducing Wildland Fire 
Risks to Communities and the Environment 10-Year Comprehensive Strategy 
Implementation Plan;''
    (3) Shall be conducted consistent with bureau and Departmental 
procedures and applicable land and resource management plans;
    (4) Shall not be conducted in wilderness areas or impair the 
suitability of wilderness study areas for preservation as wilderness; 
and
    (5) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and may include the sale of vegetative material if the 
primary purpose of the activity is hazardous fuels reduction. (Refer to 
the ESM Series for additional, required guidance.)
    (l) Post-fire rehabilitation activities not to exceed 4,200 acres 
(such as tree planting, fence replacement, habitat restoration, 
heritage site restoration, repair of roads and trails, and repair of 
damage to minor facilities such as campgrounds) to repair or improve 
lands unlikely to recover to a management approved condition from 
wildland fire damage, or to repair or replace minor facilities damaged 
by fire. Such activities must comply with the following (Refer to the 
ESM Series for additional, required guidance.):
    (1) Shall be conducted consistent with bureau and Departmental 
procedures and applicable land and resource management plans;
    (2) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and
    (3) Shall be completed within three years following a wildland 
fire.


Sec.  46.215  CXs: Extraordinary circumstances.

    Extraordinary circumstances (see Sec.  46.205(c)) exist for 
individual actions within CXs that may meet any of the criteria listed 
in paragraphs (a) through (l) of this section. Applicability of 
extraordinary circumstances to CXs is determined by the Responsible 
Official.
    (a) Have significant impacts on public health or safety.
    (b) Have significant impacts on such natural resources and unique 
geographic characteristics as historic or cultural resources; park, 
recreation or refuge lands; wilderness areas; wild or scenic rivers; 
national natural landmarks; sole or principal drinking water aquifers; 
prime farmlands; wetlands (E.O. 11990); floodplains (E.O. 11988); 
national monuments; migratory birds; and other ecologically significant 
or critical areas.
    (c) Have highly controversial environmental effects or involve 
unresolved conflicts concerning alternative uses of available resources 
[NEPA section 102(2)(E)].
    (d) Have highly uncertain and potentially significant environmental 
effects or involve unique or unknown environmental risks.
    (e) Establish a precedent for future action or represent a decision 
in principle about future actions with potentially significant 
environmental effects.
    (f) Have a direct relationship to other actions with individually 
insignificant but cumulatively significant environmental effects.
    (g) Have significant impacts on properties listed, or eligible for 
listing, on the National Register of Historic Places.
    (h) Have significant impacts on species listed, or proposed to be 
listed, on the List of Endangered or Threatened Species, or have 
significant impacts on designated Critical Habitat for these species.
    (i) Violate a Federal law, or a State, local, or tribal law or 
requirement imposed for the protection of the environment.
    (j) Have a disproportionately high and adverse effect on low income 
or minority populations (E.O. 12898).
    (k) Limit access to and ceremonial use of Indian sacred sites on 
Federal lands by Indian religious practitioners or significantly 
adversely affect the physical integrity of such sacred sites (E.O. 
13007).
    (l) Contribute to the introduction, continued existence, or spread 
of noxious weeds or non-native invasive species known to occur in the 
area or actions that may promote the introduction, growth, or expansion 
of the range of such species (Federal Noxious Weed Control Act and E.O. 
13112).


Sec.  46.220  How to designate lead agencies.

    (a) In most cases, the Responsible Official should designate one 
Federal agency as the lead with the remaining Federal, State, tribal 
governments, and local agencies assuming the role of cooperating 
agency. In this manner, the other Federal, State, and local agencies 
can work to ensure that the NEPA document will meet their needs for 
adoption and application to their related decision(s).
    (b) In some cases, a non-Federal agency (including a tribal 
government) must comply with State or local requirements that are 
comparable to the NEPA requirements. In these cases, the Responsible 
Official may designate the non-Federal agency as a joint lead agency. 
(See 40 CFR 1501.5 and 1506.2 for a description of the selection of 
lead agencies, the settlement of lead agency disputes, and the use of 
joint lead agencies.)
    (c) In some cases, the Responsible Official may establish a joint 
lead relationship among several Federal agencies. If there is a joint 
lead, then one Federal agency must be identified as the agency 
responsible for filing the EIS with EPA.


Sec.  46.225  How to select cooperating agencies.

    (a) An ``eligible governmental entity'' is:
    (1) Any Federal agency that is qualified to participate in the 
development of an EIS as provided for in 40 CFR 1501.6 and 1508.5 by 
virtue of its jurisdiction by law, as defined in 40 CFR 1508.15; or
    (2) Any Federal agency that is qualified to participate in the 
development of an EIS by virtue of its special expertise, as defined in 
40 CFR 1508.26; or
    (3) Any non-Federal agency (State, Tribal, or local) with 
qualifications similar to those in paragraphs (a)(1) and (a)(2) of this 
section.
    (b) Except as described in paragraph (c) of this section, the 
Responsible Official for the lead bureau must invite eligible 
governmental entities to participate as cooperating agencies when the 
bureau is developing an EIS.
    (c) The Responsible Official for the lead bureau must consider any 
request by an eligible governmental entity to participate in a 
particular EIS as a cooperating agency. If the Responsible Official for 
the lead bureau denies a request, or determines it is inappropriate to 
extend an invitation, it must state the reasons in the EIS. Denial of a 
request or not extending an invitation for cooperating agency status is 
not subject to any internal administrative appeals process, nor is it a 
final agency action subject to review under the Administrative 
Procedure Act, 5 U.S.C. 701 et seq.
    (d) Bureaus should work with cooperating agencies to develop and 
adopt a memorandum of understanding

[[Page 138]]

that includes their respective roles, assignment of issues, schedules, 
and staff commitments so that the NEPA process remains on track and 
within the time schedule. Memoranda of understanding must be used in 
the case of non-Federal agencies and must include a commitment to 
maintain the confidentiality of documents and deliberations during the 
period prior to the public release by the bureau of the draft NEPA 
document.
    (e) The procedures of this section may be used for an EA.


Sec.  46.230  Role of cooperating agencies in the NEPA process.

    In accordance with 40 CFR 1501.6, throughout the development of an 
environmental document the lead bureau will collaborate, to the fullest 
extent possible, with all cooperating agencies concerning those issues 
relating to their jurisdiction and special expertise. Cooperating 
agencies may, by agreement with the lead bureau, help to do the 
following:
    (a) Identify issues to be addressed in the EIS;
    (b) Arrange for the collection and/or assembly of necessary 
resource, environmental, social, economic, and institutional data;
    (c) Analyze data;
    (d) Develop alternatives;
    (e) Evaluate alternatives and estimate the effects of implementing 
each alternative; and
    (f) Carry out any other task necessary for the development of the 
EIS.


Sec.  46.235  NEPA scoping process.

    (a) Scoping is a process that continues throughout the planning and 
early stages of preparation of an EIS. While scoping is required for an 
EIS, as described in this section, it may also be appropriate to engage 
in scoping during the preparation of an EA. For an EIS, bureaus must 
use scoping to engage State, local and tribal governments, and the 
public in the early identification of concerns, potential impacts, 
possible alternative actions, and interdisciplinary considerations. 
Scoping is an opportunity to bring agencies and applicants together to 
lay the groundwork for setting time limits, expediting reviews where 
possible, integrating other environmental reviews, and identifying any 
major obstacles that could delay the process. The Responsible Official 
shall determine whether, in some cases, the invitation requirement in 
40 CFR 1501.7(a)(1) may be satisfied by including such an invitation in 
the notice of intent (NOI).
    (b) In scoping meetings, newsletters, or other communication 
methods, the lead agency must make it clear that the lead agency is 
ultimately responsible for the scope of an EIS and that suggestions 
obtained during scoping are considered to be advisory.


Sec.  46.240  Establishing time limits for the NEPA process.

    (a) For each proposed action, on a case-by-case basis, bureaus 
shall:
    (1) Set time limits from the start through to the finish of the 
NEPA analysis and documentation consistent with the requirements of 40 
CFR 1501.8 and other legal obligations, including statutory and 
regulatory timeframes;
    (2) Consult with cooperating agencies in setting time limits; and
    (3) Encourage cooperating agencies to meet established time frames.
    (b) Time limits should reflect the availability of personnel and 
funds. Efficiency of the NEPA process is dependent on the management 
capabilities of the lead bureau, which must assemble a qualified staff 
commensurate with the type of project to be analyzed to ensure timely 
completion of NEPA documents.

Subpart D--Environmental Assessments


Sec.  46.300  Purpose of an EA and when it must be prepared.

    The purpose of an EA is to allow the Responsible Official to 
determine whether to prepare an EIS or a FONSI.
    (a) A bureau must prepare an EA for all proposed Federal actions, 
except those:
    (1) That are covered by a CX;
    (2) That are covered sufficiently by an earlier environmental 
document as determined by the Responsible Official; or
    (3) For which the bureau has already decided to prepare an EIS.
    (b) A bureau may prepare an EA for any proposed action at any time 
to:
    (1) Assist in planning and decision-making;
    (2) Further the purposes of NEPA when no EIS is necessary; or
    (3) Facilitate EIS preparation.


Sec.  46.305  Public involvement in the EA process.

    (a) The bureau must provide for public notification when an EA is 
being prepared. The bureau must, to the extent practicable, provide for 
public involvement when an EA is being prepared. However, the method 
for providing opportunities for public involvement is at the discretion 
of the bureau.
    (1) The bureau must consider comments resulting from the notice 
that are timely received, whether specifically solicited or not.
    (2) Although scoping is not required, the bureau may apply a 
scoping process to an EA.
    (b) Publication of a ``draft'' EA is not required. Bureaus may seek 
comments on an EA if they determine it to be appropriate, such as when 
the level of public interest or the uncertainty of effects warrants.
    (c) The bureau must notify the public of the availability of an EA 
and any associated FONSI once they have been completed. Comments on a 
FONSI must be solicited only as required by 40 CFR 1501.4(e)(2).
    (d) Bureaus may allow cooperating agencies (as defined in Sec.  
46.225) to participate in developing EAs.


Sec.  46.310  Contents of an EA.

    (a) At a minimum, an EA must include brief discussions of:
    (1) The proposal;
    (2) The need for the proposal;
    (3) The environmental impacts of the proposed action;
    (4) The environmental impacts of the alternatives considered; and
    (5) A list of agencies and persons consulted.
    (b) When there is consensus about the proposed action with respect 
to alternative uses of available resources, the EA need only consider 
the proposed action and proceed without consideration of additional 
alternatives, including the no action alternative. (See section 
102(2)(e) of NEPA).
    (c) In addition, an EA may describe a broader range of alternatives 
to facilitate planning and decision-making.
    (d) A proposed action or alternative(s) may include adaptive 
management strategies allowing for adjustment of the action during 
implementation. If the adjustments to an action are clearly articulated 
and pre-specified in the description of the alternative and fully 
analyzed, then the action may be adjusted during implementation without 
the need for further analysis. Adaptive management includes a 
monitoring component, approved adaptive actions that may be taken, and 
environmental effects analysis for the adaptive actions approved.
    (e) The level of detail and depth of impact analysis should 
normally be limited to the minimum needed to determine whether there 
would be significant environmental effects.
    (f) Bureaus may choose to provide additional detail and depth of 
analysis as appropriate in those EAs prepared under Sec.  46.300(b).
    (g) An EA must contain objective analyses that support conclusions 
concerning environmental impacts.

[[Page 139]]

Sec.  46.315  How to format an EA.

    (a) An EA may be prepared in any format useful to facilitate 
planning, decision-making, and appropriate public participation.
    (b) An EA may be accompanied by any other planning or decision-
making document. The portion of the document that analyzes the 
environmental impacts of the proposal and alternatives must be clearly 
and separately identified and not spread throughout or interwoven into 
other sections of the document.


Sec.  46.320  Adopting EAs prepared by another agency, entity, or 
person.

    (a) A Responsible Official may adopt an EA prepared by another 
agency, entity, or person, including an applicant, if the Responsible 
Official:
    (1) Independently reviews the EA; and
    (2) Finds that the EA complies with this subpart and relevant 
provisions of the CEQ Regulations and with other program requirements.
    (b) When appropriate, the Responsible Official may augment the EA 
to be consistent with the bureau's proposed action.
    (c) In adopting or augmenting the EA, the Responsible Official will 
cite the original EA.
    (d) The Responsible Official must ensure that its bureau's public 
involvement requirements have been met before it adopts another 
agency's EA.


Sec.  46.325  Conclusion of the EA process.

    (a) Upon review of the EA by the Responsible Official, the EA 
process concludes in either:
    (1) A NOI to prepare an EIS;
    (2) A FONSI; or
    (3) No further action on the proposal.
    (b) Bureaus must document the final decision reached under 
paragraph (a) of this section.

Subpart E--Environmental Impact Statements


Sec.  46.400  Timing of EIS development.

    (a) The bureau must prepare an EIS for each proposed major Federal 
action significantly affecting the quality of the human environment 
before making a decision on whether or not to proceed with the proposed 
action.
    (b) The Responsible Official must inform applicants as soon as 
practicable of any responsibility they will bear for funding 
environmental analyses associated with their proposals.


Sec.  46.405  Remaining within page limits.

    To the extent possible, bureaus should use techniques such as 
incorporation by reference and tiering in an effort to remain within 
the normal page limits stated in 40 CFR 1502.7.


Sec.  46.415  EIS format.

    The Responsible Official may use any EIS format and design as long 
as the statement is in accordance with 40 CFR 1502.10.
    (a) Contents. The Responsible Official may use any EIS format as 
long as the statement discloses:
    (1) A statement of the purpose and need for the action;
    (2) A description of the proposed action;
    (3) The environmental impact of the proposed action;
    (4) A brief description of the affected environment;
    (5) Any adverse environmental effects which cannot be avoided 
should the proposal be implemented;
    (6) Alternatives to the proposed action;
    (7) The relationship between local short-term uses of man's 
environment and the maintenance and enhancement of long-term 
productivity;
    (8) Any irreversible or irretrievable commitments of resources 
which would be involved in the proposed action should it be 
implemented; and
    (9) The incremental process used, if any, of coordination with 
other Federal agencies, State, Tribal and local governments, and 
commonly recognized community groups pursuant to Sec. Sec.  46.110, 
46.145 and 46.155 and the results thereof.
    (b) Alternatives. The EIS shall document the examination of 
reasonable alternatives to the proposed action. Reasonable alternatives 
are those that meet the purpose and need and address one or more 
significant issues (40 CFR 1501.7) related to the proposed action. 
Since an alternative may be developed to address more than one 
significant issue, no specific number of alternatives is required or 
prescribed. In addition to the requirements at 40 CFR 1502.14, the 
Responsible Official has an option to use the following procedures to 
develop and analyze alternatives.
    (1) The effects of the no-action alternative may be documented by 
contrasting the current condition and expected future condition should 
the proposed action not be undertaken with the impacts of the proposed 
action and any reasonable alternatives.
    (2) To facilitate collaborative processes and sound decisions, the 
Responsible Official may collaborate with interested parties to modify 
a proposed action and alternative(s) under consideration prior to 
issuing a draft EIS. In such cases the Responsible Official may 
consider the incremental changes as alternatives considered. The 
documentation of these incremental changes to a proposed action or 
alternatives may be incorporated by reference in accordance with 40 CFR 
1502.21 rather than duplicating the description and analysis in the 
statement.
    (3) A proposed action or alternative(s) may include adaptive 
management strategies allowing for adjustment of the action during 
implementation. If the adjustments to an action are clearly articulated 
and pre-specified in the description of the alternative and fully 
analyzed, then the action may be adjusted during implementation without 
the need for further analysis. Adaptive management includes a 
monitoring component, approved adaptive actions that may be taken, and 
environmental effects analysis for the adaptive actions approved.
    (c) Circulating and filing draft and final EISs.
    (1) The draft and final EISs shall be filed with EPA's Office of 
Federal Activities in Washington, DC (40 CFR 1506.9).
    (2) If preliminary drafts are prepared, the Responsible Official 
shall make those preliminary draft and preliminary final EISs available 
to those interested and affected persons and agencies for comment; 
however, requirements at 40 CFR 1506.10 and 40 CFR 1502.19 shall only 
apply to the last draft statement and the final statement.


Sec.  46.420  Terms used in an EIS.

    The following terms are commonly used to describe concepts or 
activities in an EIS:
    (a) Statement of purpose and need. In accordance with 40 CFR 
1502.13, the statement of purpose and need briefly indicates the 
underlying purpose and need to which the bureau is responding.
    (1) In some instances it may be appropriate for the bureau to 
describe its ``purpose'' and its ``need'' as distinct aspects. The 
``need'' for the action may be described as the underlying problem or 
opportunity to which the agency is responding with the action. The 
``purpose'' may refer to the goal or objective that the agency is 
trying to achieve, and should be stated to the extent possible, in 
terms of desired outcomes.
    (2) When an agency is asked to approve an application or permit, 
the agency should consider the needs and goals of the parties involved 
in the application or permit as well as the public interest.
    (b) Reasonable alternatives. In addition to the requirements of 40 
CFR 1502.14, this term also includes

[[Page 140]]

alternatives that are technically and economically practical or 
feasible and that meet the purpose and need of the proposed action.
    (c) Range of alternatives. This term includes all alternatives that 
would reasonably accomplish the purpose of the proposed action, that 
will be rigorously explored and objectively evaluated as well as other 
alternatives that are analyzed in any preliminary draft or preliminary 
final EIS.
    (d) Proposed action. This term refers to the agency activity under 
consideration. It includes a non-Federal entity's planned activity that 
falls under a Federal agency's authority to issue permits, licenses, 
grants, rights-of-way, or other common Federal approvals, funding, or 
regulatory instruments. The proposed action:
    (1) Is not necessarily, but may become, during the NEPA process, a 
preferred alternative or an environmentally preferable alternative; and
    (2) Must be clearly described in order to proceed with NEPA 
analysis.
    (e) Preferred alternative. This term refers to the alternative 
which the agency believes would best accomplish the purpose and need of 
the proposed action, while fulfilling its statutory mission and 
responsibilities, giving consideration to economic, environmental, 
technical, and other factors. It may or may not be the same as the 
agency's or the non-Federal entity's proposed action.
    (f) No action alternative. This term has two interpretations. First 
``no action'' may mean ``no change'' from a current management 
direction or level of management intensity. Second ``no action'' may 
mean ``no project'' in cases where a new project is proposed for 
construction. Regardless of the interpretation, a ``no action'' 
alternative is required to be analyzed in an EIS.


Sec.  46.425  Identification of the preferred alternative in an EIS.

    (a) Unless another law prohibits the expression of a preference, 
the draft EIS should identify the bureau's preferred alternative or 
alternatives, if one or more exists.
    (b) Unless another law prohibits the expression of a preference, 
the final EIS must identify the bureau's preferred alternative.


Sec.  46.430  Environmental review and consultation requirements.

    (a) An EIS that also addresses other environmental review and 
consultation requirements must clearly identify and discuss all the 
associated analyses, studies, and surveys relied upon by the agency as 
a part of that review and consultation. Also:
    (1) The EIS should indicate that the associated analyses are 
included;
    (2) The EIS must reference or include as an appendix any supporting 
analyses or reports; and
    (3) The bureau preparing the EIS must send copies of all supporting 
analyses or reports to reviewing agencies as appropriate in accordance 
with applicable regulations or procedures.
    (b) The draft EIS must list all Federal permits, licenses, or 
approvals that must be obtained to implement the proposal. To the 
extent possible and authorized by law, the environmental analyses for 
these related permits, licenses, and approvals should be integrated and 
performed concurrently. The bureau may complete the NEPA analysis 
before all approvals are in place.


Sec.  46.435  Inviting comments.

    (a) A bureau must seek comment from the public as part of the NOI 
to prepare an EIS and notice of availability on the draft EISs;
    (b) In addition to paragraph (a) of this section, a bureau must 
request comments from:
    (1) Federal agencies;
    (2) State agencies through procedures established by the Governor 
under E.O. 12372;
    (3) Local agencies, to the extent that they include the affected 
local jurisdictions; and
    (4) Applicant, if any, and persons or organizations who may be 
interested or affected.
    (c) The bureau must request comments from the tribal government, 
unless the tribal government has designated an alternate review 
process, when the proposed action may affect the environment of either:
    (1) Indian trust or restricted land; or
    (2) Other Indian trust resources, trust assets, or tribal health 
and safety.
    (d) A bureau does not need to delay preparation and issuance of a 
final EIS when any Federal, State, and local agencies, or tribal 
governments from which comments must be obtained or requested do not 
comment within the prescribed time period.


Sec.  46.440  Eliminating duplication with State and local procedures.

    A bureau must incorporate in its regulations provisions allowing a 
State agency to jointly prepare an EIS, to the extent provided in 40 
CFR 1506.2.


Sec.  46.445  Preparing a legislative EIS.

    When required, the Department must ensure that a legislative EIS is 
included as a part of the formal transmittal of a legislative proposal 
to the Congress.


Sec.  46.450  Identifying the environmentally preferable alternative.

    In accordance with the requirements of 40 CFR 1505.2, a bureau must 
identify the environmentally preferable alternative in the ROD. It is 
not necessary that the environmentally preferable alternative be 
selected in the ROD.

 [FR Doc. E7-25484 Filed 12-31-07; 8:45 am]
BILLING CODE 4310-RG-P