Reports and guidance documents; availability, etc.: Departmental Manual; procedures changes,

[Federal Register: June 6, 2005 (Volume 70, Number 107)]

[Notices]

[Page 32840-32844]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr06jn05-45]

DEPARTMENT OF THE INTERIOR

Office of the Secretary

Notice of Final Changes to Procedures

AGENCY: Department of the Interior.

ACTION: Notice of final changes to procedures.

SUMMARY: These changes to procedures modify the Departmental Manual at 516 DM 2.5, Cooperating Agencies (40 CFR 1501.6). These procedures clarify the responsibility of managers to offer this status to qualified agencies and governments, and to respond to requests for this status. These procedures also make clear the role of cooperating agencies in the implementation of the Department's National Environmental Policy Act (NEPA) compliance process. With this publication of these procedures they will be added to the Electronic Library of Interior Policies (ELIPS). ELIPS is located at: http://elips.doi.gov/ .

The changes to the procedures are necessary to emphasize the importance of working with Federal and State agencies and Tribal and local governments through cooperating agency relationships in preparing environmental impact statements under NEPA.

FOR FURTHER INFORMATION CONTACT: Vijai N. Rai, Team Leader, Natural Resources Management, Office of Environmental Policy and Compliance; 1849 C Street, NW., Washington, DC 20240. Telephone: 202-208-6661. e- mail: vijai_rai@ios.doi.gov. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: This section provides general information, background, a summary of comments and responses, and procedural requirements.

General Information: In an Executive Order (EO 13352) on Facilitation of Cooperative Conservation, the President seeks to ensure that certain Federal agencies, including the Department of the Interior, implement laws relating to the environment and natural resources in a manner that promotes cooperative conservation. The EO emphasizes appropriate local participation in Federal decision-making, in accordance with agencies' respective agency missions, policies, and regulations.

In an effort to carry out the intent of EO 13352, the Department of the Interior is strengthening its National Environmental Policy Act (NEPA) implementing procedures which appear in part 516 of the Departmental Manual (DM) at 516 DM 2.5 on Cooperating Agencies. Consistent with both EO 13352 and the Secretary of the Interior's ``4C's'' policy, that is, Conservation through Communication, Consultation, and Cooperation, these revised

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procedures will reinforce existing bureau procedures that encourage the types of cooperation envisioned in the EO 13352. The Department of the Interior has long promoted, and successfully implemented, partnerships with States, Tribes, local governments, and private landowners to advance conservation. Such partnerships serve to preserve open space, restore habitat for wildlife, and protect endangered species, among other things.

The changes provide Department-wide direction to proactively engage States, Tribes and local governments in the development of all environmental impact statements.

We also wish to clarify here the invitation requirement for scoping at 516 DM 2.6A. There the manual provides that the invitation requirement in Section 40 CFR 1501.7(a)(1) may be satisfied by including such an invitation in the Notice of Intent. Under the revised procedures for cooperating agencies, bureaus do not need to invite eligible governmental entities separately for purposes of scoping as long as prior to scoping they have complied fully with the provisions at 516 DM 2.5D.

In accordance with 1507.3 of the CEQ Regulations, this Department submitted these final revisions to CEQ for their review and approval. In a letter, CEQ approved these procedures for final publication. The remaining sections of supplementary information will provide background, a synopsis of comments and responses, and procedural requirements. Following the supplementary information is the text of the final procedures.

Background: On March 18, 2005, the Department published proposed changes to modify the Departmental Manual at 516 DM 2.5, Cooperating Agencies (40 CFR 1501.6) in the Federal Register (70 FR 13203) and requested public comments. The purpose of the proposed changes to the Department's Manual is to provide further guidance to implement the President's Executive Order (EO 13352) on Facilitation of Cooperative Conservation.

All comments received to date have been read, analyzed, and considered during the revision process. No changes have been made to the proposed procedures as published on March 18, 2005. The procedures have been circulated in the Department for final clearance by each assistant secretary. In some cases, responses to public comments have been further revised during the final, internal review and clearance process. No additional changes have been made to the proposed procedures as published as a part of the final, internal review and clearance process.

Comments and Responses: The Department received, reviewed, and considered twelve items of correspondence from the public on the March 18, 2005, Federal Register notice. In general, the comments support the proposed changes to procedures at 516 DM 2.5. Some comments focused on specific concerns regarding implementation of the proposed procedures and expressed the need for further clarification of certain points and the definition of terms to eliminate any ambiguities. A discussion of these issues follows and is presented topically with similar comments grouped together for ease of analysis and discussion.

One commenter expressed concern that the current proposed procedures do not contain adequate safeguards to prevent delays. Such delays could result from a lack of timeframes for governmental entities to respond to the invitation to participate or, after declining an opportunity to participate, to change their position and later seek to participate. The commenter seeks to have timeframes included in the procedures to ensure against delays and suggests further that the Department should take this opportunity to make improvements to the NEPA process by adopting fully all the recommendations of the National Academy of Sciences (NAS) regarding improvements to NEPA contained in its report on Hardrock Mining on Federal Lands.

The Department believes that timeframes and milestones are not applicable. Milestones and timeframes are generally included in the administrative record of an environmental review process and therefore provide a safeguard to prevent unnecessary and unreasonable delay. Alternatively, timeframes for compliance can be incorporated into the documents offering the opportunity to become a cooperator or, in the case of production milestones, to include timeliness requirements in a Memorandum of Understanding (MOU) that is prepared when Cooperating Agency status is established. The Department believes these procedures improve interagency coordination as recommended in the NAS report. However, other recommendations in the NAS report are beyond the scope of these procedural changes.

Three commenters noted that the proposed changes to the procedures take the form of guidance not regulation. The concern is that guidance can be changed by future Secretaries of the Interior; moreover, guidance instead of regulation, leaves the policy more vulnerable and less enforceable than it would be if it were a regulation. The commenters cite the recently completed Bureau of Land Management (BLM) rulemaking on the same subject as a reason that the Department should do likewise. One commenter has suggested that the Department needs to provide for more permanency to the process through rulemaking. The stated reasons are that local governments, once they are assured of the ability to participate, will plan accordingly. State agencies, once they know their participation is needed and wanted, will develop the necessary expertise to participate in the process. State agencies must know they will be treated as partners in the process before they commit the resources to develop this partnership. Secondly, a process made permanent through rulemaking would demonstrate to the Department's employees that State and local governments are expected to participate and become cooperators in the process. Local input, the commenter asserts, is currently discouraged instead of encouraged. Establishing a rule would convey a greater level of importance to the field offices.

BLM's planning regulations cover more than NEPA compliance and reflect land management requirements specified under Statutes such as the Federal Land Policy Management Act and others. However, unlike the BLM, the Department has not issued a specific planning rule. The implementing regulations under the provisions of NEPA are issued by the Council on Environmental Quality (CEQ), and the Department issues guidance and procedures under those regulations. Like any revision to a regulation, Departmental guidance and procedures involving NEPA are subject to review and comment by the public and the CEQ. Therefore, any future revision to Departmental NEPA guidance and procedures will also undergo public review and comment.

The same commenters also seek a better definition of the level of ``collaboration'' that is likely to be applied or which may occur in the field. It may be helpful, they claim, for the guidance to further define the terms ``collaboration'' and ``the fullest extent practicable,'' to ensure that consistent expectations are achieved for all parties throughout the process.

To more precisely define these terms would serve only to place arbitrary limits, constraints, and requirements on a process that, by its very nature, is designed to be a consultative, consensus building, and cooperative endeavor.

The one commenter asserts that proposed subsection D needs

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clarification because it appears to be inconsistent. The commenter questions the rationale for the Federal agency to approve or deny a request to become a cooperating agency and states that if the Federal agency is required to invite qualified State, Tribal, and local governments to participate as cooperating agencies, there is no need for the qualified agency to have to make a request to participate.

A review of the entire subsection D reveals no inconsistency among the statements. The Department believes that the lead Federal agency should be able to deny cooperating agency status when the requester does not have jurisdiction by law or special expertise as specified in the CEQ's regulations implementing NEPA. However, to ensure that the process is open and transparent, the Federal agency is required to respond in writing to the requestor and provide a summary of the request and the reasons for such denial within the environmental impact statement. In addition, this section provides a mechanism to a prospective qualified agency to request to become a cooperating agency if for any reason the Federal agency did not invite the qualified agency to become a cooperating agency.

A commenter recommended that the proposed procedures be applied to Environmental Assessments (EA), in addition to Environmental Impact Statements (EIS). As noted by the commenter, this recommendation is related to the CEQ regulations implementing NEPA at 40 CFR 1501.6 which refer to cooperating agencies in conjunction with EISs.

Although the CEQ regulations do not specifically limit the establishment of cooperating agency relationships to the preparation of EISs, the Department (and NEPA practitioners in general) has generally not employed cooperating agencies in the preparation of EAs. Considerable thought was given to requiring the Department's bureaus to extend the cooperating agency invitation to appropriate governmental entities for the preparation of EAs when the proposed changes to the procedures at 516 DM 2.5 were being formulated. However, the number of EAs prepared annually by the Department's bureaus is huge (several thousands). The process of establishing cooperating agencies for the many EAs that are prepared would unduly encumber that phase of the NEPA process for all affected stakeholders. Also, most EAs are prepared for actions that may not be expected to have significant environmental impacts and usually result in the issuance of a finding of no significant impact (FONSI). To require Federal agencies to invite various entities to become cooperating agencies on proposed actions that have no significant impact would become a major impediment to most agency actions and would make the NEPA process highly inefficient and ineffective. This procedure is directed to ensure that Federal agencies invite all qualified government entities to become cooperating agencies with respect to any proposed action that would have significant impact on the quality of the human environment.

One commenter expressed the concern that the proposed procedures would allow bureaus to reject a request by a cooperating agency to participate in the preparation of an EIS. The commenter suggested that if such a request to be a cooperating agency were rejected, it might be prudent to have provisions that allow for an appeal of that decision. Also, the power to reject such requests should be narrow and limited.

Appeal rights are outside the scope of the proposed procedures. The objective of strengthening the requirement for bureaus to extend the cooperating agency invitation to a broad range of potentially affected governmental entities is to provide a more inclusive and collaborative NEPA framework and environmental review process. It is the intent that rejections of requests for cooperating agency status would be few, limited, and only for good reason.

One individual commenter expressed the concern that allowing non- Federal entities to have such a strong participatory role in the preparation of NEPA documents carries the risk that the analysis is likely to be biased and the integrity of the document compromised. The commenter is concerned that the process will reduce the public's trust in the information and analysis in the document.

The Department has NEPA compliance oversight responsibility and is ultimately accountable for the integrity, scientific accuracy and reliability of the analysis in its EIS. The decision to invite, and subsequently grant, another governmental entity a role in the NEPA process as a cooperating agency does not alter the role and responsibility of the lead agency to ensure that the information and the scientific analysis contained in the EIS are valid and uncompromised.

Another commenter suggests that the procedural change is an attempt by the agency to make secret of what goes on at this Department.

The Department takes a different view that this procedural change will make the process more open and transparent.

Procedural Requirements: The following list of procedural requirements has been assembled and addressed to contribute to this open review process. Today's publication is a notice of final, internal Departmental action and not a rulemaking. However, we have addressed the various procedural requirements that are generally applicable to proposed and final rulemaking to show how they would affect this notice if it were a rulemaking.

Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993) it has been determined that this action is the implementation of policy and procedures applicable only to the Department of the Interior and not a significant regulatory action. These policies and procedures would not impose a compliance burden on the general economy.

Administrative Procedures Act

This document is not subject to prior notice and opportunity to comment because it is a general statement of policy and procedure [(5 U.S.C. 553(b) (A)]. However, notice and opportunity to comment is required by the CEQ Regulations [40 CFR 1507.3(a)].

Regulatory Flexibility Act

This document is not subject to notice and comment under the Administrative Procedures Act, and, therefore, is not subject to the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This document provides the Department with policy and procedures under NEPA and does not compel any other party to conduct any action.

Small Business Regulatory Enforcement Fairness Act

These policies and procedures do not comprise a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The document will not have an annual effect on the economy of $100 million or more and is expected to have no significant economic impacts. Further, it will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions and will impose no additional regulatory restraints in addition to those already in operation. Finally, the document does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability

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of United States based enterprises to compete with foreign based enterprises.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.), this document will not significantly or uniquely affect small governments. A Small Government Agency Plan is not required. The document does not require any additional management responsibilities. Further, this document will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a significant regulatory action under the Unfunded Mandates Reform Act. These policies and procedures are not expected to have significant economic impacts nor will they impose any unfunded mandates on other Federal, State, or local government agencies to carry out specific activities.

Federalism

In accordance with Executive Order 13132, this document does not have significant federalism effects; and, therefore, a federalism assessment is not required. The policies and procedures will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. However, this policy will likely improve, and enhance, State and local relationships with Federal agencies. No intrusion on State policy or administration is expected, roles or responsibilities of Federal or State governments will not change, and fiscal capacity will not be substantially, directly affected. Therefore, the document does not have significant effects or implications on federalism.

Paperwork Reduction Act

This document does not require information collection as defined under the Paperwork Reduction Act. Therefore, this document does not constitute a new information collection system requiring Office of Management and Budget (OMB) approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

National Environmental Policy Act

The Council on Environmental Quality does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agency NEPA procedures are internal procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action.

Essential Fish Habitat

We have analyzed this document in accordance with section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and determined that issuance of this document will not affect the essential fish habitat of Federally managed species; and, therefore, an essential fish habitat consultation on this document is not required.

Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175 of November 6, 2000, and 512 DM 2, we have assessed this document's impact on Tribal trust resources and have determined that it does not directly affect Tribal resources since it describes the Department's procedures for its compliance with NEPA.

Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Executive Order 13211 of May 18, 2001, requires a Statement of Energy Effects for significant energy actions. Significant energy actions are actions normally published in the Federal Register that lead to the promulgation of a final rule or regulation and may have any adverse effects on energy supply, distribution, or use. We have explained above that this document is an internal Departmental Manual part which only affects how the Department conducts its business under the National Environmental Policy Act. This manual part is not a rulemaking; and, therefore, not subject to Executive Order 13211.

Actions To Expedite Energy-Related Projects

Executive Order 13212 of May 18, 2001, requires agencies to expedite energy-related projects by streamlining internal processes while maintaining safety, public health, and environmental protections. Today's publication is in conformance with this requirement as it promotes early collaboration and cooperation amongst agencies with jurisdiction or expertise in activities requiring an environmental impact study (including some energy-related projects).

Government Actions and Interference With Constitutionally Protected Property Rights

In accordance with Executive Order 12630 (March 15, 1988) and Part 318 of the Departmental Manual, the Department has reviewed today's notice to determine whether it would interfere with constitutionally protected property rights. Again, we believe that as internal instructions to bureaus on the implementation of the National Environmental Policy Act, this publication would not cause such interference.

Authority: NEPA, the National Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.); E.O. 11514, March 5, 1970, as amended by E.O. 11991, May 24, 1977; and CEQ Regulations 40 CFR 1507.3

P. Lynn Scarlett, Assistant Secretary for Policy, Management and Budget.

Department of the Interior

Departmental Manual

Effective Date:

Series: Environmental Quality.

Part 516: National Environmental Policy Act of 1969.

Chapter 2: Initiating the NEPA Process.

Originating Office: Office of Environmental Policy and Compliance.

516 DM 2

2.5 Cooperating Agencies (40 CFR 1501.6 and 1508.5).

A. Upon the request of a bureau, the OEPC will assist bureaus in determining cooperating agencies and coordinating requests from non- Interior agencies.

B. Bureaus will inform the OEPC of any requests to become a cooperating agency or any declinations to become a cooperating agency pursuant to 40 CFR 1501.6(c).

C. Upon the request of the lead agency, any Federal agency that is qualified to participate in the development of an environmental impact statement as provided for in 40 CFR 1501.6 and 1508.5 by virtue of its jurisdiction by law, as defined in 40 CFR 1508.15, shall be a cooperating agency. In addition, upon request of the lead agency, any Federal agency that is qualified to participate in the development of an environmental impact statement by virtue of its specialized expertise, as defined in 40 CFR 1508.26, may be a cooperating agency. Any non-Federal agency (State, Tribal, or local) with similar qualifications may by agreement be a cooperating agency. Bureaus will consult with the Solicitor's Office in cases where such non-Federal agencies are also applicants before the Department to determine relative lead/cooperating agency responsibilities.

D. An agency meeting the requirements of 516 DM 2.5 C is defined as an eligible governmental entity.

E. Bureaus will invite eligible governmental entities to participate as cooperating agencies when the bureau is developing an environmental impact statement in accordance with the requirements of NEPA and the CEQ regulations. Bureaus will also consider any requests by eligible governmental entities to participate as a cooperating agency with

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respect to a particular environmental impact statement, and will either accept or deny such requests. If such a request is denied, bureaus will state in writing, within the environmental impact statement, the reasons for such denial.

F. Throughout the development of the environmental impact statement, the bureau will collaborate, to the fullest extent practicable, with all cooperating agencies, concerning those issues relating to their jurisdiction and/or special expertise. Collaboration will be to:

(1) Identify issues to be addressed in the environmental impact statement;

(2) arrange for the collection and/or assembly of necessary resource, environmental, social, economic, and institutional data;

(3) analyze data;

(4) develop alternatives; (1) Evaluate alternatives and estimate the effects of implementing each alternative; and

(6) carry out any other task necessary for the development of the environmental impact statement.

G. Bureaus and eligible governmental entities are required to express in a memorandum of understanding their respective roles, assignment of issues, schedules, and staff commitments so that the NEPA process remains on track and within the time schedule.

[FR Doc. 05-11129 Filed 6-3-05; 8:45 am]