[Federal Register Volume 61, Number 75 (Wednesday, April 17, 1996)]
[Rules and Regulations]
[Pages 16719-16728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8191]



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UTAH RECLAMATION MITIGATION AND CONSERVATION COMMISSION

43 CFR Part 10010


Policy and Procedures for Implementing the National Environmental 
Policy Act

AGENCY: Utah Reclamation Mitigation and Conservation Commission.

ACTION: Final rule.

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SUMMARY: The Central Utah Project Completion Act established the Utah 
Reclamation Mitigation and Conservation Commission (Commission) and 
directed that the Commission be considered a Federal agency for 
purposes of compliance with the National Environmental Policy Act of 
1969, as amended (NEPA). In accordance with NEPA and Council on 
Environmental Quality (CEQ) regulations, Federal agencies must 
establish procedures to guide their actions in implementing NEPA. This 
rule establishes the Commission's policies and procedures regarding 
NEPA implementation. It defines the procedures that the Commission will 
follow in preparing environmental documents and in making decisions 
pursuant to NEPA. The rule also provides information to other agencies 
and the public regarding how they may participate in the Commission's 
NEPA activities. The intended effects of this rule are that the 
Commission will have at its disposal specific guidance on how to 
fulfill its NEPA responsibilities, and that the public will have a 
clear understanding of the Commission's NEPA procedures.

EFFECTIVE DATE: March 15, 1996.

FOR FURTHER INFORMATION CONTACT: Joan Degiorgio, Telephone: 801-524-
3146.

SUPPLEMENTARY INFORMATION: The Draft NEPA Rule was published in the 
Federal Register on January 25, 1996, Vol. 61, No. 17. The Final NEPA 
Rule was adopted by the Commission in public session on March 15, 1996.

Background

    The Commission was established by the Central Utah Project 
Completion Act (Public Law 102-575, October 30, 1992). The Commission's 
mission is to implement mitigation and conservation measures to offset 
the effects of Federal reclamation projects in Utah and to take other 
actions for the conservation of important fish, wildlife, and 
recreation resources. The Commission was established to focus the 
authority for reclamation mitigation and to coordinate interagency 
efforts toward meeting mitigation needs. This rule

[[Page 16720]]

provides the Commission, affected Federal agencies, the State of Utah, 
and the public with the necessary guidance to evaluate the 
environmental effects of Commission activities and to ensure that these 
will promote the protection and enhancement of environmental quality. 
It is adopted in accordance with the National Environmental Policy Act 
of 1969, as amended (42 U.S.C. 4321-4347) and with Council on 
Environmental Quality (CEQ) regulations (40 CFR 1500-1508).

NEPA Rule Content

    This rule provides direction on all aspects of the Commission's 
NEPA process. It establishes general policies, provides guidance on 
initiating the NEPA process, describes procedures relating to 
Environmental Assessments (EA) and Environmental Impact Statements 
(EIS), describes the relationship between NEPA and the Commission's 
decision making process, and provides guidance on managing the NEPA 
process.

Relationship to Department of Interior NEPA Procedures

    The Commission's NEPA rule is modeled after the U.S. Department of 
the Interior's (Department) NEPA procedures (Departmental Manual, Part 
516) and relevant portions of Appendix I to that Part, which 
establishes U.S. Fish and Wildlife Service (Service) NEPA procedures. 
Four factors led the Commission to conclude that it is appropriate to 
closely follow Department and Service procedures. First, Department and 
Service reclamation mitigation and resource conservation activities 
closely parallel those of the Commission and needs relating to NEPA are 
therefore similar. Second, the Department's Office of the Solicitor is 
responsible for providing the Commission with legal advice regarding 
the Commission's NEPA activities and is familiar with the Department's 
NEPA procedures. Third, the Commission will be involved in numerous 
interagency activities with the Department, the Service, and other 
bureaus within the Department, all of whom are familiar with, and bound 
by, Departmental NEPA procedures. Fourth, other agencies and 
organizations that will likely participate in Commission sponsored 
activities, including the Utah Division of Wildlife Resources and the 
Central Utah Water Conservancy District, have been involved in 
mitigation and conservation initiatives involving Departmental NEPA 
procedures and are therefore familiar with these procedures.
    The Commission's NEPA rule generally adheres to the language 
contained in the Department's Manual. Exceptions are as follows. First, 
references to the Department, the Secretary, the Fish and Wildlife 
Service, and departmental bureaus have been substituted with ``the 
Commission'' or other appropriate language. Second, portions of the 
Departmental procedures that assign responsibilities for NEPA planning 
and approval processes have been modified to conform to the 
Commission's authorities and approval process. Third, references to 
regulatory and enforcement activities are omitted as the Commission is 
not a regulatory agency. Fourth, references to the activities of 
specific Department of the Interior bureaus are omitted. Fifth, 
references to activities and subjects that are outside of the 
Commission's jurisdiction or that are not applicable to the geographic 
area subject to Commission actions (for example, marine resources) are 
omitted. Sixth, a new section is added that references tiering of 
environmental documents.
    Categorical exclusions listed in paragraph (a) of Section 10010.61 
are from Part 516 of the Department's Manual. With one addition, 
categorical exclusions in paragraph (b) of that section are from the 
Fish and Wildlife Service's appendix to Part 516. The addition is 
(b)(6), derived from the Bureau of Reclamation's appendix to Part 516, 
and relates to the Commission's ability to transfer operations and 
maintenance of facilities.
    The rule's format deviates significantly from that of the 
Departmental Manual in order to be consistent with the format of the 
Code of Federal Regulations. Minor editorial changes have also been 
made.

Public Participation

    The Commission is committed to open and full public participation 
in its activities. The Commission has established a planning rule (43 
CFR Part 10005) that describes opportunities for the public to become 
involved in the preparation and implementation of the Commission's 
mandated five-year plan. The public will also be given ample 
opportunity to become involved in the evaluation of individual projects 
that are components of that plan. The procedures for this are described 
in this NEPA rule.

Rule Preparation and Review

    This rule was prepared in consultation with affected Federal and 
state agencies and other interested parties. The availability of the 
draft rule was published in the Federal Register January 25, 1996. A 
forty-five day public comment period was established. No comments were 
received and the Rule was adopted on March 15, 1996.
Michael C. Weland,
Executive Director.

List of Subjects in 43 CFR Part 10010

    Administrative practices and procedures, Environmental impact 
statements, Environmental protection, Intergovernmental relations, 
Natural resources, Reclamation, Water resources.

    For the reasons set out in the preamble, 43 CFR Chapter III is 
amended by adding a new part 10010 to read as follows:

PART 10010--POLICIES AND PROCEDURES FOR IMPLEMENTING THE NATIONAL 
ENVIRONMENTAL POLICY ACT

Subpart A--Protection and Enhancement of Environmental Quality

10010.1  Purpose.
10010.2  Policy.
10010.3  General responsibilities.
10010.4  Consideration of environmental values.
10010.5  Consultation, coordination, and cooperation with other 
agencies and organizations.
10010.6  Public involvement.
10010.7  Mandate.

Subpart B--Initiating the NEPA Process

10010.8  Purpose.
10010.9  Apply NEPA early.
10010.10  Whether to prepare an EIS.
10010.11  Lead agencies.
10010.12  Cooperating agencies.
10010.13  Scoping.
10010.14  Time limits.

Subpart C--Environmental Assessments

10010.15  Purpose.
10010.16  When to prepare.
10010.17  Public involvement.
10010.18  Content.
10010.19  Format.
10010.20  Adoption.

Subpart D--Environmental Impact Statements

10010.21  Purpose.
10010.22  Statutory requirements.
10010.23  Timing.
10010.24  Page limits.
10010.25  Supplemental environmental impact statements.
10010.26  Format.
10010.27  Cover sheet.
10010.28  Summary.
10010.29  Purpose and need.
10010.30  Alternatives including the proposed action.
10010.31  Appendix.
10010.32  Tiering.
10010.33  Incorporation by reference of material into NEPA 
documents.
10010.34  Incomplete or unavailable information.

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10010.35  Methodology and scientific accuracy.
10010.36  Environmental review and consultation requirements.
10010.37  Inviting comments.
10010.38  Response to comments.
10010.39  Elimination of duplication with state and local 
procedures.
10010.40  Combining documents.
10010.41  Commission responsibility.
10010.42  Public involvement.
10010.43  Further guidance.
10010.44  Proposals for legislation.
10010.45  Time periods.

Subpart E. Relationship to Decision-Making

10010.46  Purpose.
10010.47  Pre-decision referrals to CEQ.
10010.48  Decision-making procedures.
10010.49  Record of decision.
10010.50  Implementing the decision.
10010.51  Limitations on actions.
10010.52  Timing of actions.
10010.53  Emergencies.

Subpart F--Managing the NEPA Process

10010.54  Purpose.
10010.55  Organization for environmental quality.
10010.56  Approval of EISs.
10010.57  List of specific compliance responsibilities.
10010.58  Information about the NEPA process.

Subpart G--Actions Requiring an EIS and Actions Subject to Categorical 
Exclusion

10010.59  Purpose.
10010.60  Actions normally requiring an EIS.
10010.61  Actions subject to categorical exclusion.
10010.62  Exceptions to categorical exclusions.

    Authority: 43 U.S.C. 620k (note).

Subpart A--Protection and Enhancement of Environmental Quality


Sec. 10010.1  Purpose.

    This Subpart establishes the Commission's policies for complying 
with Title 1 of the National Environmental Policy Act of 1969, as 
amended (42 U.S.C. 4321-4347) (NEPA); Section 2 of Executive Order 
11514, Protection and Enhancement of Environmental Quality, as amended 
by Executive Order 11991; and the regulations of the Council on 
Environmental Quality (CEQ) implementing the procedural provisions of 
NEPA (40 CFR parts 1500 through 1508).


Sec. 10010.2  Policy.

    It is the policy of the Commission:
    (a) To provide leadership in protecting and enhancing those aspects 
of the quality of the Nation's environment which relate to or may be 
affected by the Commission's policies, goals, programs, plans, or 
functions in furtherance of national environmental policy;
    (b) To use all practicable means to improve, coordinate, and direct 
its policies, plans, functions, programs, and resources in furtherance 
of national environmental goals;
    (c) To interpret and administer, to the fullest extent possible, 
the policies, regulations, and public laws of the United States 
administered by the Commission in accordance with the policies of NEPA;
    (d) To consider and give significant weight to environmental 
factors, along with other essential considerations, in developing 
proposals and making decisions in order to achieve a proper balance 
between the development and utilization of natural, cultural, and human 
resources and the protection and enhancement of environmental quality;
    (e) To consult, coordinate, and cooperate with other Federal 
agencies and State, local, and Indian tribal governments in the 
development and implementation of the Commission's plans and programs 
affecting environmental quality and, in turn, to provide to the fullest 
extent practicable, these entities with information concerning the 
environmental impacts of their respective plans and programs;
    (f) To provide, to the fullest extent practicable, timely 
information to the public to better assist in understanding the 
Commission's plans and programs affecting environmental quality and to 
facilitate their involvement in the development of such plans and 
programs; and
    (g) To cooperate with and assist the CEQ.


Sec. 10010.3  General responsibilities.

    The following responsibilities reflect the Commission's decision 
that the officials responsible for making program decisions are also 
responsible for taking the requirements of NEPA into account in those 
decisions and will be held accountable for that responsibility:
    (a) Executive Director. (1) Is the Commission's focal point on NEPA 
matters and is responsible for overseeing the Commission's 
implementation of NEPA.
    (2) Serves as the Commission's principle contact with the CEQ.
    (3) Assigns to Commission staff the responsibilities outlined in 
this part.
    (4) Must comply with the provisions of NEPA, E.O. 11514 as amended, 
the CEQ regulations, and this part.
    (5) Will interpret and administer, to the fullest extent possible, 
the policies, regulations, and public laws of the United States 
administered under the Commission's jurisdiction in accordance with the 
policies of NEPA.
    (6) Will continue to review the Commission's statutory authorities, 
administrative regulations, policies, programs, and procedures, in 
order to identify any deficiencies or inconsistencies therein which 
prohibit or limit full compliance with the intent, purpose, and 
provisions of NEPA and, in consultation with the Department of the 
Interior Office of the Solicitor, shall take or recommend, as 
appropriate, corrective actions as may be necessary to bring these 
authorities and policies into conformance with the intent, purpose, and 
procedures of NEPA.
    (7) Will monitor, evaluate, and control on a continuing basis the 
Commission's activities so as to protect and enhance the quality of the 
environment. Such activities will include those directed to conserving 
and enhancing the environment and designed to accomplish other program 
objectives which may affect the quality of the environment. The 
Executive Director will develop programs and measures to protect and 
enhance environmental quality and assess progress in meeting the 
specific objectives of such activities as they affect the quality of 
the environment.
    (b) Members of the Commission. (1) Are responsible for compliance 
with NEPA, E.O. 11514, as amended, the CEQ regulations, and this part.
    (2) Will insure that, to the fullest extent possible, the policies, 
regulations, and public laws of the United States administered under 
the Commission's jurisdiction are interpreted and administered in 
accordance with the policies of NEPA.
    (c) Department of the Interior Office of the Solicitor. Is 
responsible for providing legal advice to the Commission regarding 
compliance with NEPA.


Sec. 10010.4  Consideration of environmental values.

    (a) In Commission management. (1) In the management of the natural, 
cultural, and human resources under its jurisdiction, the Commission 
must consider and balance a wide range of economic, environmental, and 
social objectives at the local, regional, and national levels, not all 
of which are quantifiable in comparable terms. In considering and 
balancing these objectives, Commission plans, proposals, and decisions 
often require recognition of complements and resolution of conflicts 
among interrelated uses of these natural, cultural, and human resources 
within

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technological, budgetary, and legal constraints.
    (2) Commission project reports, program proposals, issue papers, 
and other decision documents must carefully analyze the various 
objectives, resources, and constraints, and comprehensively and 
objectively evaluate the advantages and disadvantages of the proposed 
actions and their reasonable alternatives. Where appropriate, these 
documents will utilize and reference supporting and underlying 
economic, environmental, and other analyses.
    (3) The underlying environmental analyses will factually, 
objectively, and comprehensively analyze the environmental effects of 
proposed actions and their reasonable alternatives. They will 
systematically analyze the environmental impacts of alternatives, and 
particularly those alternatives and measures which would reduce, 
mitigate, or prevent adverse environmental impacts or which would 
enhance environmental quality.
    (b) In internally initiated proposals. Officials responsible for 
development or conduct of planning and decision making systems within 
the Commission shall incorporate to the maximum extent necessary 
environmental planning as an integral part of these systems in order to 
insure that environmental values and impacts are fully considered and 
in order to facilitate any necessary documentation of those 
considerations.
    (c) In externally initiated proposals. Officials responsible for 
development or conduct of grant, contract, or other externally 
initiated activities shall require applicants, to the extent necessary 
and practicable, to provide environmental information, analyses, and 
reports as an integral part of their applications. This will serve to 
encourage applicants to incorporate environmental considerations into 
their planning processes as well as provide the Commission with 
necessary information to meet its own environmental responsibilities.


Sec. 10010.5  Consultation, coordination, and cooperation with other 
agencies and organizations.

    (a) Commission plans and programs. (1) Officials responsible for 
planning or implementing Commission plans and programs will develop and 
utilize procedures to consult, coordinate, and cooperate with relevant 
State, local, and Indian tribal governments; other Federal agencies; 
and public and private organizations and individuals concerning the 
environmental effects of these plans and programs on their 
jurisdictions and/or interests.
    (2) The Commission will utilize, to the maximum extent possible, 
existing notification, coordination, and review mechanisms established 
by the Office of Management and Budget, the Water Resource Council, and 
CEQ. However, use of these mechanisms must not be a substitute for 
early and positive consultation, coordination, and cooperation with 
others, especially State, local, and Indian tribal governments.
    (b) Other Commission activities. (1) Technical assistance, advice, 
data, and information useful in restoring, maintaining, and enhancing 
the quality of the environment will be made available to other Federal 
agencies, State, local, and Indian tribal governments, institutions, 
and individuals as appropriate.
    (2) Information regarding existing or potential environmental 
problems and control methods developed as a part of research, 
development, demonstration, test, or evaluation activities will be made 
available to other Federal agencies, State, local, and Indian tribal 
governments, institutions and other entities as appropriate.
    (c) Plans and programs of other agencies and organizations. (1) 
Officials responsible for protecting, conserving, developing, or 
managing resources under the Commission's jurisdiction shall coordinate 
and cooperate with State, local and Indian tribal governments, other 
Federal agencies, and public and private organizations and individuals, 
and provide them with timely information concerning the environmental 
effects of these entities' plans and programs.
    (2) The Commission will participate early in applicable planning 
processes of other agencies and organizations in order to ensure full 
cooperation with and understanding of the Commission's programs and 
interests in natural, cultural, and human resources.
    (3) The Commission will utilize to the fullest extent possible, 
existing review mechanisms to avoid unnecessary duplication of effort 
and to avoid confusion by other organizations.


Sec. 10010.6  Public involvement.

    The Commission will develop and utilize procedures to ensure the 
fullest practicable provision of timely public information and 
understanding of its plans and programs including information on the 
environmental impacts of alternative courses of action. These 
procedures will include, wherever appropriate, provision for public 
meetings or hearings in order to obtain the views of interested 
parties. The Commission will also encourage State and local agencies 
and Indian tribal governments to adopt similar procedures for informing 
the public concerning their activities affecting the quality of the 
environment.


Sec. 10010.7  Mandate.

    (a) This part provides instructions for complying with NEPA and 
Executive Order 11514, Protection and Enhancement of Environmental 
Quality, as amended by Executive Order 11991.
    (b) The Commission hereby adopts the regulations of the CEQ, 
implementing the procedural provisions of NEPA (sec. 102(2)(C)) except 
where compliance would be inconsistent with other statutory 
requirements. In the case of any apparent discrepancies between these 
procedures and the mandatory provisions of the CEQ regulations the 
regulations shall govern.
    (c) Instructions supplementing the CEQ regulations are provided in 
subparts B through G of this part. Citations in brackets refer to the 
CEQ regulations. In addition, the Commission may prepare a handbook or 
other technical guidance, or adopt an appropriate handbook or guidance 
prepared by another agency, for its personnel on how to apply this part 
to principal programs.

Subpart B--Initiating the NEPA Process


Sec. 10010.8  Purpose.

    This subpart provides supplemental instructions for implementing 
those portions of the CEQ regulations pertaining to initiating the NEPA 
process (40 CFR Parts 1501 through 1506).


Sec. 10010.9  Apply NEPA early.

    (a) The Commission will initiate early consultation and 
coordination with other Federal agencies having jurisdiction by law or 
special expertise with respect to any environmental impact involved, 
and with appropriate Federal, State, local and Indian tribal agencies 
authorized to develop and enforce environmental standards.
    (b) The Commission will also consult early with interested private 
parties and organizations, including when the Commission's own 
involvement is reasonably foreseeable in a private or non-Federal 
application.
    (c) The Commission will insure that applicants are informed of any 
environmental information required, to be included in their 
applications and of any consultation with other Federal agencies, and 
State, local or Indian

[[Page 16723]]

tribal governments required prior to making the application.


Sec. 10010.10  Whether to prepare an EIS.

    (a) Categorical exclusions (CX) (40 CFR 1508.4).
    (1) The following criteria will be used to determine categories of 
actions to be excluded from preparation of an EA or EIS:
    (i) Analysis or experience shows that the action or group of 
actions would have no significant effect on the quality of the human 
environment; and
    (ii) The action or group of actions would not involve unresolved 
conflicts concerning alternative uses of available resources.
    (2) Based on the criteria in paragraph (a)(1) of this section, the 
categories of actions listed in subpart G of this part are excluded 
from the preparation of an EA or EIS.
    (3) The exceptions listed in subpart G of this part apply to 
individual actions subject to CX. Appropriate environmental documents 
must be prepared for any actions involving these exceptions.
    (4) Notwithstanding the criteria, exclusions, and exceptions in 
paragraphs (a)(1) through (3), extraordinary circumstances may dictate 
or a responsible Commission official may decide to prepare an 
environmental document to assist with decision-making.
    (b) Environmental Assessment (EA) (40 CFR 1508.9). Procedures 
regarding preparation of an EA are addressed in subpart C of this part.
    (c) Finding of No Significant Impact (FONSI) (40 CFR 1508.13). A 
FONSI will be prepared as a separate document based upon analysis of an 
EA and a determination that the proposed action will have no 
significant environmental impact.
    (d) Notice of Intent (NOI) (40 CFR 1508.22). A NOI will be prepared 
as soon as practicable after a decision to prepare an environmental 
impact statement and shall be published in the Federal Register and 
made available to the affected public in accordance with 40 CFR 1506.6. 
Publication of a NOI may be delayed if there is proposed to be more 
than three (3) months between the decision to prepare an environmental 
impact statement and the time preparation is actually initiated. The 
Commission will periodically publish a consolidated list of these 
notices in the Federal Register.
    (e) Environmental Impact Statement (EIS) (40 CFR 1508.11). 
Decisions/actions which would normally require the preparation of an 
EIS are identified in subpart G of this part. Procedures regarding 
preparation of an EIS are addressed in subpart D of this part.


Sec. 10010.11  Lead agencies.

    (a) The Commission will serve as lead, or, as appropriate, joint-
lead agency for any NEPA procedure that is sponsored by or otherwise 
significantly involves the Commission.
    (b) The Commission will inform the Office of the Solicitor of any 
agreements to assume lead or joint-lead agency status.
    (c) A non-Federal agency may be designated as a joint lead agency 
if it has a duty to comply with a local or State environmental review 
requirement. Any non-Federal agency may be a cooperating agency by 
agreement. The Commission will consult with the Office of the Solicitor 
in cases where such non-Federal agencies are also applicants before the 
Commission to determine joint-lead agency responsibilities.


Sec. 10010.12  Cooperating agencies.

    (a) The Commission will adhere to CEQ directives both in the 
designation of cooperating agencies for Commission sponsored NEPA 
procedures and in seeking designation as a cooperating agency for 
procedures sponsored by others. Any non-Federal agency may be a 
cooperating agency in Commission NEPA proceedings by agreement. The 
Commission will consult with the Office of the Solicitor in cases where 
such non-Federal agencies are also applicants before the Commission to 
determine cooperating agency responsibilities.
    (b) The Commission will inform the Office of the Solicitor of any 
agreements to assume cooperating agency status or any declinations 
pursuant to 40 CFR 1501.6 (c).


Sec. 10010.13  Scoping.

    (a) The invitation requirement in 40 CFR 1501.7(a)(1) may be 
satisfied by including such an invitation in the NOI.
    (b) If a scoping meeting is held, consensus is desirable; however, 
the lead agency is ultimately responsible for the scope of an EIS. In 
the case of procedures involving joint-lead agencies, all joint-lead 
agencies share this responsibility.


Sec. 10010.14  Time limits.

    When time limits are established to prepare an environmental 
document they should reflect the availability of personnel and funds.

Subpart C--Environmental Assessments


Sec. 10010.15  Purpose.

    This subpart provides supplemental instructions for implementing 
those portions of the CEQ regulations pertaining to environmental 
assessments (EA).


Sec. 10010.16  When to prepare.

    (a) An EA will be prepared for all actions, except those categories 
of action excluded from documentation or addressed adequately by a 
previous environmental document, or for those actions for which a 
decision has already been made to prepare an EIS. The purpose of such 
an EA is to allow the responsible official to determine whether to 
prepare an EIS.
    (b) In addition, an EA may be prepared on any action at any time in 
order to assist in planning and decision making.


Sec. 10010.17  Public involvement.

    (a) The public may be involved in the EA process when appropriate. 
Public notification will be made of the availability of an EA document 
(40 CFR 1506.6).
    (b) The scoping process may be applied to an EA (40 CFR 1501.7).


Sec. 10010.18  Content.

    (a) At a minimum, an EA will include brief discussions of the need 
for the proposal, of alternatives as required by section 102(2)(E) of 
NEPA, of the environmental impacts of the proposed action and such 
alternatives, and a listing of agencies and persons consulted (40 CFR 
1508.9(b)).
    (b) In addition, an EA may be expanded to more fully describe the 
proposal and a broader range of alternatives if this facilitates 
planning and decision making.
    (c) The level of detail and depth of impact analysis should 
normally be limited to that needed to determine whether there are 
significant environmental effects.
    (d) An EA will contain objective and credible analyses which 
support its environmental impact conclusions. It will not, in and of 
itself, conclude whether or not an EIS will be prepared. This 
conclusion will be made upon review of the EA by the responsible 
official and documented in either a NOI or FONSI.


Sec. 10010.19  Format.

    (a) An EA may be prepared in any format useful to facilitate 
planning and decision making.
    (b) An EA may be combined with any other planning or decision 
making

[[Page 16724]]

document; however, that portion which analyzes the environmental 
impacts of the proposal and alternatives will be clearly and separately 
identified and not spread throughout or interwoven into other sections 
of the document.


Sec. 10010.20  Adoption.

    (a) An EA prepared for a proposal before the Commission by another 
agency, entity or person, including an applicant, may be adopted if, 
upon independent evaluation by the responsible Commission official, it 
is found to comply with this part and relevant provisions of the CEQ 
regulations.
    (b) When appropriate and efficient, a responsible Commission 
official may augment such an EA when it is essentially, but not 
entirely, in compliance in order to make it so.
    (c) If an EA or augmented EA is adopted, the responsible Commission 
official must prepare his/her own NOI or FONSI which also acknowledges 
the origin of the EA and takes full responsibility for its scope and 
content.

Subpart D--Environmental Impact Statements


Sec. 10010.21  Purpose.

    This subpart provides supplemental instructions for implementing 
those portions of the CEQ regulations pertaining to environmental 
impact statements (EIS).


Sec. 10010.22  Statutory requirements.

    NEPA requires that an EIS be prepared by the responsible Federal 
official. This official is normally the lowest-level official who has 
overall responsibility for formulating, reviewing, or proposing an 
action or, alternatively, has been delegated the authority or 
responsibility to develop, approve, or adopt a proposal or action. 
Preparation at this level will ensure that the NEPA process will be 
incorporated into the planning process and that the EIS will accompany 
the proposal through existing review processes.


Sec. 10010.23  Timing.

    (a) The feasibility analysis (go/no-go) stage, at which time an EIS 
is to be completed, is to be interpreted as the stage prior to the 
first point of major commitment to the proposal.
    (b) An EIS need not be commenced until an application is 
essentially complete; e.g., any required environmental information is 
submitted, any consultation required with other agencies has been 
conducted, and any required advance funding is paid by the applicant or 
other appropriate party.


Sec. 10010.24  Page limits.

    An EIS should be as brief as possible and still convey the required 
information. Normally this should be accomplished in less than 150 
pages, though documents of up to 300 pages are acceptable for more 
comprehensive issues. Where the text of an EIS for a complex proposal 
or group of proposals appears to require more than the normally 
prescribed limit of 300 pages, the Commission will ensure that the 
length of such statements is no greater than necessary to comply with 
NEPA, the CEQ regulations, and this part.


Sec. 10010.25  Supplemental environmental impact statements.

    (a) Supplement Environmental Impact Statements (SEIS) are only 
required if such changes in the proposed action or alternatives, new 
circumstances, or resultant significant effects are not adequately 
analyzed in the previously prepared EIS.
    (b) The Commission will consult with the Office of the Solicitor 
prior to proposing to CEQ to prepare a final supplement without 
preparing an intervening draft.
    (c) If, after a Record of Decision has been executed based on a 
final EIS, a described proposal is further refined or modified and if 
there are only minor changes in effects or they are still within the 
scope of the earlier EIS, an EA and FONSI may be prepared for 
subsequent decisions rather than a SEIS. As identified in Sec. 
10010.61(b)(1)(i), changes having no potential for significant 
environmental impact are categorically excluded from environmental 
documentation requirements.


Sec. 10010.26  Format.

    (a) Proposed departures from the standard format described in the 
CEQ regulations and this part must be approved by the Executive 
Director.
    (b) The section listing the preparers of the EIS will also include 
other sources of information, including a bibliography or list of cited 
references, when appropriate.
    (c) The section listing the distribution of the EIS will also 
briefly describe the consultation and public involvement processes 
utilized in planning the proposal and in preparing the EIS, if this 
information is not discussed elsewhere in the document.
    (d) If CEQ's standard format is not used or if the EIS is combined 
with another planning or decision making document, the section which 
analyzes the environmental consequences of the proposal and its 
alternatives will be clearly and separately identified and not 
interwoven into other portions of or spread throughout the document.


Sec. 10010.27  Cover sheet.

    The cover sheet will indicate whether the EIS intended to serve any 
other environmental review or consultation requirements pursuant to 40 
CFR 1502.25.


Sec. 10010.28  Summary.

    The emphasis in the summary should be on those considerations, 
controversies, and issues which significantly affect the quality of the 
human environment.


Sec. 10010.29  Purpose and need.

    The purpose and need section may introduce a number of factors, 
including economic and technical considerations and Commission 
statutory missions, which may be outside the scope of the EIS. Care 
should be taken to insure an objective presentation and not a 
justification.


Sec. 10010.30  Alternatives including the proposed action.

    (a) As a general rule, the following guidance will apply:
    (1) For internally initiated proposals; i.e., for those cases where 
the Commission conducts or controls the planning process, both the 
draft and final EIS shall identify the Commission's proposed action, or 
preferred alternative.
    (2) For externally initiated proposals; i.e., for those cases where 
the Commission is reacting to an application or similar request, the 
draft and final EIS shall identify the applicant's proposed action and 
the Commission's preferred alternative unless another law prohibits 
such an expression.
    (3) Proposed departures from this guidance must be approved by the 
Executive Director and the Office of the Solicitor.
    (b) Mitigation measures to offset adverse effects of the proposed 
action or its alternatives are not necessarily independent of these 
actions and should be incorporated into and analyzed as a part of the 
proposal and appropriate alternatives. Where appropriate, major 
mitigation measures may be identified and analyzed as separate 
alternatives in and of themselves where the environmental consequences 
are distinct and significant enough to warrant separate evaluation.


Sec. 10010.31  Appendix.

    If an EIS is intended to serve other environmental review or 
consultation requirements pursuant to 40 CFR 1502.25, any more detailed 
information

[[Page 16725]]

needed to comply with these requirements may be included as an 
appendix.


Sec. 10010.32  Tiering.

    An environmental document prepared by or for the Commission may 
incorporate by reference, either in part or in its entirety, an earlier 
environmental impact statement or environmental assessment when the 
subject matter of the earlier document is directly applicable. The 
Commission may also choose to prepare, or cause to have prepared, a 
broad environmental document to cover an entire program or, 
alternatively, a series of projects within a distinct geographic area, 
with the intent of later undertaking project-specific documentation and 
``tiering'' to the more general statement or assessment.


Sec. 10010.33  Incorporation by reference of material into NEPA 
documents.

    Citations of specific topics will include the pertinent page 
numbers. All literature references will be listed in the bibliography.


Sec. 10010.34  Incomplete or unavailable information.

    The references to overall costs in 40 CFR 1502.22 of the CEQ 
regulations are not limited to market costs, but may also include other 
costs such as social costs due to delay.


Sec. 10010.35  Methodology and scientific accuracy.

    Conclusions about environmental effects will be preceded by an 
analysis that supports that conclusion unless explicit reference by 
footnote is made to other supporting documentation that is readily 
available to the public.


Sec. 10010.36  Environmental review and consultation requirements.

    (a) The Commission will maintain a list of applicable environmental 
review and consultation requirements pursuant to other federal or state 
laws and regulations and will make this available to interested 
parties.
    (b) If the EIS is intended to serve as the vehicle to fully or 
partially comply with the requirements of other federal or state laws 
and regulations, the associated analyses, studies, or surveys will be 
identified as such and discussed in the text of the EIS and the cover 
sheet will so indicate. Any supporting analyses or reports to the NEPA 
documents will be incorporated by reference or included as an appendix 
and shall be sent to reviewing agencies as appropriate in accordance 
with applicable regulations or procedures.


Sec. 10010.37  Inviting comments.

    (a) Comments from State agencies will be requested through 
procedures established by the Governor pursuant to Executive Order 
12372, and may be requested from local agencies through these 
procedures to the extent that they include the affected local 
jurisdictions.
    (b) When the proposed action may affect the environment of an 
Indian reservation, comments will be requested from the Indian tribe 
through the tribal governing body, unless the tribal governing body has 
designated an alternate review process.


Sec. 10010.38  Response to comments.

    (a) Preparation of a final EIS need not be delayed in those cases 
where a Federal agency, from which comments are required to be obtained 
(40 CFR 1503.1(a)(l)), does not comment within the prescribed time 
period. Informal attempts will be made to determine the status of any 
such comments and every reasonable attempt should be made to include 
the comments and a response in the final EIS.
    (b) When other commentors are late, their comments should be 
included in the final EIS to the extent practicable.


Sec. 10010.39  Elimination of duplication with state and local 
procedures.

    The Commission will incorporate in its appropriate program 
regulations provisions for the preparation of an EIS by a State agency 
to the extent authorized in section 102(2)(D) of NEPA.


Sec. 10010.40  Combining documents.

    Incorporating documentation requirements of other environmental 
regulations into an EIS is both acceptable and desirable. If the EIS is 
combined with another planning or decision making document, the section 
which analyzes the environmental consequences of the proposal and its 
alternatives will be clearly and separately identified and not 
interwoven into other portions of or spread throughout the document.


Sec. 10010.41  Commission responsibility.

    A Commission sponsored environmental document may be prepared by 
the Commission, a joint-lead agency, a contractor selected or approved 
by the Commission, or, when appropriate, a cooperating agency. 
Regardless, the Commission has the responsibility to independently 
evaluate and draw appropriate conclusions. Following the Commission's 
preparation or independent evaluation of and assumption of 
responsibility for an environmental document, an applicant may print it 
provided the applicant is bearing the cost of the document pursuant to 
other laws.


Sec. 10010.42  Public involvement.

    The Commission will adhere to CEQ requirements regarding the use of 
public notices, public meetings, public review of NEPA documents, and 
other techniques to ensure that the public has ample opportunity to 
provide input into the proceedings and to ensure that the Commission 
will give due consideration to this input.


Sec. 10010.43  Further guidance.

    The Commission may provide further guidance concerning NEPA 
pursuant to its organizational responsibilities and through 
supplemental directives.


Sec. 10010.44  Proposals for legislation.

    (a) When appropriate, the Commission shall identify in the annual 
submittal to the Office of Management and Budget of the Commission's 
proposed legislative program any requirements for and the status of any 
environmental documents.
    (b) When required, the Commission shall ensure that a legislative 
EIS is included as a part of the formal transmittal of a legislative 
proposal to the Congress.


Sec. 10010.45  Time periods.

    (a) The minimum review period for a draft EIS will be sixty (60) 
days from the date of transmittal to the Environmental Protection 
Agency.
    (b) The Commission will be responsible for consulting with the 
Environmental Protection Agency and/or CEQ about any proposed 
reductions in time periods or any extensions of time periods proposed 
by those agencies.

Subpart E--Relationship to Decision-Making


Sec. 10010.46  Purpose.

    This subpart provides supplementary instructions for implementing 
those portions of the CEQ regulations pertaining to decision-making.


Sec. 10010.47  Pre-decision referrals to CEQ.

    (a) Upon receipt of advice that another Federal agency intends to 
refer a Commission matter to CEQ, the Commission will immediately meet 
with that Federal agency to attempt to resolve the issues raised.
    (b) Upon any referral of a Commission matter to CEQ by another 
Federal agency, the Executive Director will be responsible for 
coordinating the Commission's position.

[[Page 16726]]

Sec. 10010.48  Decision-making procedures.

    (a) Procedures by which the Commission makes decisions are 
specified in 43 CFR part 10000.
    (b) The Commission will incorporate in its formal decision-making 
procedures provisions for consideration of environmental factors and 
relevant environmental documents. The major decision points for 
principal programs likely to have significant environmental effects 
will be clearly identified.
    (c) Relevant environmental documents, including supplements, will 
be included as part of the record in formal rule making or adjudicatory 
proceedings.
    (d) Relevant environmental documents, comments, and responses will 
accompany proposals through existing review processes so that 
Commission officials use them in making decisions.
    (e) The decision-maker will consider the environmental impacts of 
the entire range of alternatives described in any relevant 
environmental document; the range of these alternatives must encompass 
the actual alternatives considered by the decision-maker.


Sec. 10010.49  Record of decision.

    (a) Any decision documents prepared for proposals involving an EIS 
may incorporate all appropriate provisions of 40 CFR 1505.2 (b) and 
(c).
    (b) If a decision document incorporating these provisions is made 
available to the public following a decision, it will serve the purpose 
of a record of decision.


Sec. 10010.50  Implementing the decision.

    The terms ``monitoring'' and ``conditions'' in 40 CFR 1505.3 of the 
CEQ regulations will be interpreted as being relevant to factors 
affecting the quality of the human environment.


Sec. 10010.51  Limitations on actions.

    The Executive Director will notify the Chairman of the Commission 
and the Office of the Solicitor of any situations where Commission or 
applicant action would, if taken prior to completion of a NEPA 
proceeding, potentially have an adverse environmental impact or limit 
the choice of reasonable alternatives.


Sec. 10010.52  Timing of actions.

    The Commission will consult with the Office of the Solicitor before 
making any request for reducing the time period before a decision or 
action.


Sec. 10010.53  Emergencies.

    In the event of an unanticipated emergency situation, the 
Commission will immediately take any necessary action to prevent or 
reduce risks to public health or safety or serious resource losses and 
then expeditiously consult with the Office of the Solicitor about 
compliance with NEPA. The Commission will also be responsible for 
consulting with CEQ.

Subpart F--Managing the NEPA Process


Sec. 10010.54  Purpose.

    This subpart provides supplemental instruction for implementing 
those provisions for the CEQ regulations pertaining to procedures for 
implementing and managing the NEPA process.


Sec. 10010.55  Organization for environmental quality.

    (a) Executive Director. The Executive Director is responsible for 
providing advice and assistance to the Commission on matters pertaining 
to environmental quality and for overseeing and coordinating the 
Commission's compliance with NEPA, Executive Order 11514 as amended by 
Executive Order 11991, the CEQ regulations, and this part.
    (b) NEPA Coordinator. The Executive Director will designate 
organizational elements or individuals, as appropriate, to be 
responsible for overseeing matters pertaining to the environmental 
effects of the Commission's plans and programs. The individual(s) 
assigned these responsibilities should have management experience or 
potential, understand the Commission's planning and decision making 
processes, and be well trained in environmental matters, including the 
Commission's policies and procedures so that his/her/their advice has 
significance in the Commission's planning and decisions.


Sec. 10010.56  Approval of EISs.

    The Chairman of the Commission (Chairman), acting on the part of 
the full Commission, is authorized to approve an EIS. The Chairman may 
further assign the authority to approve the EIS if he or she chooses. 
The Executive Director will make certain that there are adequate 
safeguards to assure that EISs and other environmental documents comply 
with NEPA, the CEQ regulations, this part, and other relevant 
Commission procedures.


Sec. 10010.57  List of specific compliance responsibilities.

    (a) The Commission staff shall:
    (1) As deemed necessary, prepare a NEPA handbook or adapt 
applicable materials prepared by other agencies, providing guidance on 
how to implement NEPA in principal program areas.
    (2) Prepare program regulations or directives for applicants.
    (3) Propose categorical exclusions.
    (4) Prepare EAs.
    (5) Recommend whether to prepare an EIS.
    (6) Prepare NOIs and FONSIs.
    (7) Prepare EISs.
    (b) The Executive Director shall:
    (1) Approve agency handbooks and other NEPA guidance.
    (2) Approve regulations or directives for applicants.
    (3) Approve categorical exclusions.
    (4) Approve EAs.
    (5) Decide whether to prepare an EIS.
    (6) Approve NOIs and FONSIs.
    (7) Make recommendations regarding the adequacy of EISs.
    (c) The Chairman of the Commission, acting on behalf of the full 
Commission, shall:
    (1) Concur with regulations or directives for applicants.
    (2) Concur with EAs.
    (3) Approve EISs.


Sec. 10010.58  Information about the NEPA process.

    The Executive Director will identify staff contacts where 
information about the NEPA process and the status of EISs may be 
obtained.

Subpart G--Actions Requiring an EIS and Actions Subject to 
Categorical Exclusion


Sec. 10010.59  Purpose.

    This subpart provides supplemental instruction for determining 
major actions requiring an EIS and for determining actions that are 
categorically excluded from NEPA.


Sec. 10010.60  Actions normally requiring an EIS.

    (a) The following proposals will normally require the preparation 
of an EIS:
    (1) Establishment of major new refuges or wildlife management 
areas, fish hatcheries, and major additions to such installations.
    (2) Master development and/or management plans for major new 
installations.
    (3) Management plans for established installations where major new 
developments or substantial changes in management practices are 
proposed.
    (b) If for any of these proposals it is initially decided not to 
prepare an EIS, an EA will be prepared in accordance with 40 CFR 
1501.4(e)(2).


Sec. 10010.61  Actions subject to categorical exclusion.

    (a) General categorical exclusions. The following actions are 
categorical

[[Page 16727]]

exclusions (CX). However, environmental documents will be prepared for 
individual actions subject to CX if the exceptions listed in Sec. 
10010.62 apply.
    (1) Personnel actions and investigations and personnel services 
contracts.
    (2) Internal organizational charges and facility and office 
reductions and closings.
    (3) Routine financial transactions, including such things as 
salaries and expenses, procurement contracts, guarantees, financial 
assistance, income transfers, audits, fees, bonds and royalties.
    (4) Legal transactions, including such things as investigations, 
patents, claims, legal opinions, and judicial activities including 
their initiation, processing, settlement, appeal or compliance.
    (5) Monitoring actions, including inspections, assessments, 
administrative hearings and decisions; when the regulations themselves 
or the instruments of regulations (leases, permits, licences, etc.) 
have previously been covered by the NEPA process or exempt from it.
    (6) Non-destructive data collection, inventory (including field, 
aerial and satellite surveying and mapping), study, and research 
activities.
    (7) Routine and continuing government business, including such 
things as supervision, administration, activities having limited 
context and intensity, for example, activities of limited size and 
magnitude of short-term effects.
    (8) Management formulation, allocation, transfer and reprogramming 
of the Commission's budget at all levels. This does not exclude the 
preparation of environmental documents for proposals included in the 
budget when otherwise required.
    (9) Legislative proposals of an administrative or technical nature, 
including such things as changes in authorizations for appropriations, 
and minor boundary changes and land transactions; or having primarily 
economic, social, individual or institutional effects; and comments and 
reports on referrals of legislative proposals.
    (10) Policies, directives, regulations, and guidelines of an 
administrative, financial, legal, technical, or procedural nature; or 
the environmental effects of which are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will be 
subject later to the NEPA process, either collectively or case-by-case.
    (11) Activities which are educational, informational, advisory or 
consultative to other agencies, public and private entities, visitors, 
individuals or the general public.
    (12) Cooperative agreements and interagency agreements.
    (b) Specific categorical exclusions. The following actions are 
categorical exclusions (CX).
    (1) General:
    (i) Changes or amendments to an approved action when such changes 
have no potential for causing substantial environmental impact.
    (ii) Personnel training, environmental interpretation, public 
safety efforts and other educational activities.
    (iii) The issuance and modification of procedures, including 
manuals, orders and field rules, when the impacts are limited to 
administrative or technological effects.
    (iv) The acquisition of land or water rights in accordance with the 
Commission's procedures, when the acquisition is from a willing seller, 
the acquisition planning process has been performed in coordination 
with the affected public and essentially the existing use will be 
continued.
    (2) Resource management:
    (i) Research, inventory and information collection activities 
directly related to the conservation of fish and wildlife resources 
which involve negligible animal mortality or habitat destruction, and 
no introduction of either exotic organisms or contaminants.
    (ii) The operation, maintenance and management of existing 
facilities and improvements (i.e. structures, roads), including 
renovations and replacements which result in no or only minor changes 
in the capacity, use or purpose of the affected facilities.
    (iii) The addition of small structures or improvements in the area 
of existing facilities, which result in no or only minor changes in the 
capacity, use or purpose of the affected area.
    (iv) The reintroduction (stocking) of native or established species 
into suitable habitat within their historic or established range.
    (v) Minor changes in the amounts or types of public use on 
Commission managed land or land acquired with Commission funds, in 
accordance with existing regulations, management plans and procedures.
    (vi) Consultation and technical assistance activities directly 
related to the conservation of fish and wildlife resources.
    (3) Use of Commission-managed or funded lands:
    (i) The issuance of special approvals for public use of Commission-
managed land or land acquired with Commission funds, which maintains 
essentially the same level of use and does not continue a level of use 
that has resulted in adverse environmental effects.
    (ii) Permitting a limited additional use of an existing right-of-
way over Commission-managed land or land acquired with Commission 
funds, such as the addition of new power or telephone lines where no 
new structures or improvements are required, or the addition of buried 
lines.
    (iii) The issuance or reissuance of rights-of-way and special use 
approvals for Commission-managed land or land acquired with Commission 
funds that result in no or negligible environmental effects.
    (iv) The reissuance of grazing or agricultural use approvals for 
Commission-managed land or land acquired with Commission funds which do 
not increase the level of use nor continue a level of use that has 
resulted in adverse environmental effects.
    (4) Funding for activities by others:
    (i) Planning grants or other funding for planning activities and 
the administrative determination that plans were prepared in accordance 
with prescribed standards. However, when the plan is submitted to the 
Commission for implementation, the program proposed by the plan is 
subject to the NEPA process.
    (ii) Grants or other funding for categorically excluded actions 
listed in paragraphs (b) (1) through (3) of this section.
    (5) Inter-agency Initiatives: Actions where the Commission has 
concurrence or co-approval with another agency and the action is a 
categorical exclusion for that agency.
    (6) Transfer of the operations and maintenance of Federal lands, 
water, or facilities to water districts, recreation agencies, fish and 
wildlife agencies, or other entities where the anticipated operation 
and maintenance activities are agreed to in a contract or a memorandum 
of agreement, follow approved Commission policy, and no major change in 
operation and maintenance is anticipated or a proposed major change in 
operation and maintenance has previously been the subject of an 
appropriate NEPA document.


Sec. 10010.62  Exceptions to categorical exclusions.

    The following exceptions apply to individual actions within 
categorical exclusions (CX). Environmental documents must be prepared 
for actions which may:
    (a) Have significant adverse effects on public health or safety.

[[Page 16728]]

    (b) Have adverse effects on such unique geographic characteristics 
as historic or cultural resources, parks, recreation or refuge lands, 
wilderness areas, wild or scenic rivers, sole or principal drinking 
water aquifers, prime farmlands, wetlands, floodplains, or ecologically 
significant or critical areas, including those listed on the Department 
of the Interior's National Register of Natural Landmarks.
    (c) Have highly controversial environmental effects.
    (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) Be directly related to other actions with individually 
insignificant but cumulatively significant environmental effects.
    (g) Have adverse effects on properties listed or eligible for 
listing on the National Register of Historic Places.
    (h) Have adverse effects on species listed or proposed to be listed 
on the List of Endangered or Threatened Species, or have adverse 
effects on designated Critical Habitat for these species.
    (i) Require compliance with Executive Order 12988 (Floodplain 
Management), Executive Order 11990 (Protection of Wetlands), or the 
Fish and Wildlife Coordination Act. However, an action may be 
categorically excluded following applicable reviews if the action is 
found to be in conformance with the applicable law or executive order.
    (j) Threaten to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.

[FR Doc. 96-8191 Filed 4-16-96; 8:45 am]
BILLING CODE 4310-05-P