[Federal Register Volume 61, Number 248 (Tuesday, December 24, 1996)]
[Notices]
[Pages 67845-67848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32588]


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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs


National Environmental Policy Act: Implementing Procedures (516 
DM 6, Appendix 4)

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final notice of revised procedures.

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SUMMARY: This notice announces revisions to Appendix 4 of the 
Departmental Manual (516 DM 6) for implementing the National 
Environmental Policy Act (NEPA) procedures within the Bureau of Indian 
Affairs (BIA), which were published in the Federal Register on March 
31, 1988 (53 FR 10439).

EFFECTIVE DATE: December 24, 1996.

FOR FURTHER INFORMATION CONTACT: Dr. Willie R. Taylor, Director, Office 
of Environmental Policy and Compliance, at (202) 208-3891. For the BIA, 
contact Donald Sutherland at (202) 208-4791.

SUPPLEMENTARY INFORMATION: This notice is published in exercise of 
authority delegated by the Secretary of the Interior to the Assistant 
Secretary--Indian Affairs by 209 DM 8.

Background

    On July 7, 1995, the BIA published a notice in the Federal Register 
(60 FR 35417) proposing revisions to 516 DM 6, Appendix 4. These 
provided more specific NEPA compliance guidance to the BIA by updating 
the BIA's organizational responsibilities for compliance, updating 
guidance to applicants, adding to the list of actions normally 
requiring an environmental impact statement(EIS), and updating, 
revising and adding to the list of actions categorically excluded from 
the NEPA process. The notice afforded the public 30 days to review and 
comment on the proposed revisions. Certain changes in this final 
version of the revisions are in response to those comments.

Discussion of Comments and Changes

    The BIA received 14 comment letters on the proposed revisions to 
Appendix 4. Nine of these were from four federal agencies. Of these 
nine, one was from a central office and eight were from field offices. 
Three Indian tribes, an environmental organization and a private 
individual submitted the remaining five letters.
    Seven changes were made to the proposed revisions as a result of 
the comments received. Two of the changes are deletions; section 
4.2.C.24 because it was contradicted by section 4.2.B., and section 
4.4.G.4 because it was inconsistent with the case law (Connor v. 
Burford). The other five changes are clarifications in wording. These 
are in sections 4.3.A.3, 4.4.C, 4.4.H.2, 4.4.J and 4.4.L.2.
    One further change was made as a result of internal BIA review, and 
three as a result of Council on Environmental Quality (CEQ) review of 
the proposed revisions. The BIA change is the addition at section 
4.4.M.5 of the categorical exclusion for the issuance of permits under 
the Archaeological Resources Protection Act (16 U.S.C. 470aa-ll) in 
cases where the permitted work is connected with an action for which an 
environmental analysis has been, or is being prepared. In such cases, a 
separate environmental process for the archaeological permit would be 
redundant.
    One of the changes resulting from the CEQ review is the deletion of 
section 4.4.M.3., and the subsequent re-numbering within 4.4.M. The 
deleted item would have categorically excluded actions where the BIA 
had concurrence or co-approval with another agency and the action was a 
categorical exclusion for that agency. To be used, an exclusion must be 
listed by the BIA, as well. The other two changes are clarifications in 
the wording of sections 4.3.B and 4.4.H.1.
    Of the comments that did not result in changes, several recommended 
adding details that are covered in 30 BIAM Supplement 1. As noted under 
the supplemental information for the proposed revisions, Appendix 4 is 
intended to be used along with Supplement 1, as well as with 
Departmental procedures and the Council on Environmental Quality's 
regulations (40 CFR Parts 1500-1508). A number of other comments were 
editorial suggestions that offered no measurable improvement in the 
text. Yet others, while worthy of consideration in another context, 
were beyond the scope of this Appendix. One, for example, argued that 
BIA environmental guidance should be in the Code of Federal 
Regulations, not the Departmental Manual. Responses, by section, to 
comments that did not fall into one of the above three categories are 
as follows:

Section 4.3.A.1

    Comment: Recommendation that all mining development applications be 
analyzed to determine if an EIS is required, rather than categorically 
excluding applications according to production and acreage criteria.
    Response: The numbers provided in this section are intended as 
general guidance. The BIA understands that there will be exceptions to 
this categorical exclusion, and has a procedure to determine when such 
might be the case.

Section 4.4

    Comment: Recommendation that program by program regulations for 
NEPA compliance for a number of parts under 25 CFR be promulgated.
    Response: This would not be consistent with the Government's 
current policy of regulatory reduction.
    Comment: Numerous suggestions for new categorical exclusions to be 
added to the list.
    Response: The exclusions contained in this rule are flexible enough 
to cover the suggested exclusions. For example, most of the suggested 
additions fall within the broader exclusion for operation and 
maintenance (4.4.A.).

Section 4.4.I

    Comment: Recommendation that a categorical exclusion be added for 
federally funded housing projects wherein the Department of Housing and 
Urban Development (HUD) will be complying with NEPA for the housing and 
the only BIA action would be to acquire the land in trust.
    Response: The categorical exclusion was not included because such 
situations are covered under lead/cooperating agency arrangements in 
HUD's environmental documents.
    Comment: Question as to whether the categorical exclusion of land 
conveyances where no change in land use is planned might still allow 
for some degree of planned development or physical alteration of the 
land without triggering NEPA review.
    Response: It is unrealistic to expect land to be conveyed with no 
plan whatsoever for its future use. Whether or not the conveyance may 
be categorically excluded is a matter of judgement by the BIA official 
responsible for NEPA compliance as to how well the plan is established. 
The categorical exclusion does not, however, allow for any development 
or physical alteration to actually take place.
    Comment: Recommendation that all land transfers be categorically 
excluded, regardless of plans for future

[[Page 67846]]

development or physical alteration, as long as the subsequent activity 
will be subject to NEPA review.
    Response: This is in fact the way the categorical exclusion is 
meant to operate. What the BIA official responsible for NEPA compliance 
must decide is whether or not plans for development or physical 
alteration are established to the point where NEPA review of the 
proposed activity should be done in conjunction with the land transfer.
4.1  NEPA Responsibility
    A. Deputy Commissioner of Indian Affairs is responsible for NEPA 
compliance of Bureau of Indian Affairs (BIA) activities and programs.
    B. Director, Office of Trust Responsibilities (OTR) is responsible 
for oversight of the BIA program for achieving compliance with NEPA, 
program direction, and leadership for BIA environmental policy, 
coordination and procedures.
    C. Environmental Services Staff, reports to the Director (OTR). 
This office is the Bureau-wide focal point for overall NEPA policy and 
guidance and is responsible for advising and assisting Area Offices, 
Agency Superintendents, and other field support personnel in their 
environmental activities. The office also provides training and acts as 
the Central Office's liaison with Indian tribal governments on NEPA and 
other environmental compliance matters. Information about BIA NEPA 
documents or the NEPA process can be obtained from this office.
    D. Other Central Office Directors and Division Chiefs are 
responsible for ensuring that the programs and activities within their 
jurisdiction comply with NEPA.
    E. Area Directors and Project Officers are responsible for assuring 
NEPA compliance with all activities under their jurisdiction and 
providing advice and assistance to Agency Superintendents and 
consulting with the Indian tribes on environmental matters related to 
NEPA. Area Directors and Project Officers are also responsible for 
assigning sufficient trained staff to ensure NEPA compliance is carried 
out. An Environmental Coordinator is located at each Area Office.
    F. Agency Superintendents and Field Unit Supervisors are 
responsible for NEPA compliance and enforcement at the Agency or field 
unit level.
4.2  Guidance to Applicants and Tribal Governments
    A. Relationship with Applicants and Tribal Governments.
    1. Guidance to Applicants.
    a. An ``applicant'' is an entity which proposes to undertake any 
activity which will at some point require BIA action. These may include 
tribal governments, private entities, state and local governments or 
other Federal agencies. BIA compliance with NEPA is Congressionally 
mandated. Compliance is initiated when a BIA action is necessary in 
order to implement a proposal.
    b. Applicants should contact the BIA official at the appropriate 
level for assistance. This will be the Agency Superintendent, Area 
Director or the Director, Office of Trust Responsibilities.
    c. If the applicant's proposed action will affect or involve more 
than one tribal government, one government agency, one BIA Agency, or 
where the action may be of State-wide or regional significance, the 
applicant should contact the respective Area Director(s). The Area 
Director(s), using sole discretion, may assign the lead NEPA compliance 
responsibilities to one Area Office or, as appropriate, to one Agency 
Superintendent. From that point, the Applicant will deal with the 
designated lead office.
    d. Since much of the applicant's planning may take place outside 
the BIA system, it is the applicant's responsibility to prepare a 
milestone chart for BIA use at the earliest possible stage in order to 
coordinate the efforts of both parties. Early communication with the 
responsible BIA office will expedite determination of the appropriate 
type of NEPA documentation required. Other matters such as the scope, 
depth and sources of data for an environmental document will also be 
expedited and will help lead to a more efficient and more timely NEPA 
compliance process.
    2. Guidance to Tribal Governments.
    a. Tribal governments may be applicants, and/or be affected by a 
proposed action of BIA or another Federal agency. Tribal governments 
affected by a proposed action shall be consulted during the preparation 
of environmental documents and, at their option, may cooperate in the 
review or preparation of such documents. Notwithstanding the above, the 
BIA retains sole responsibility and discretion in all NEPA compliance 
matters.
    b. Any proposed tribal actions that do not require BIA or other 
Federal approval, funding or ``actions'' are not subject to the NEPA 
process.
    B. Prepared Program Guidance.
    BIA has implemented regulations for environmental guidance for 
surface mining in 25 CFR Part 216 (Surface Exploration, Mining and 
Reclamation of Lands.) Environmental guidance for Forestry activities 
is found in 25 CFR 163.27 and 53 BIAM Supplements 2 and 3.
    C. Other Guidance.
    Programs under 25 CFR for which BIA has not yet issued regulations 
or directives for environmental information for applicants are listed 
below. These programs may or may not require environmental documents 
and could involve submission of applicant information to determine NEPA 
applicability. Applicants for these types of programs should contact 
the appropriate BIA office for information and assistance:
    1. Partial payment construction charges on Indian irrigation 
projects (25 CFR Part 134).
    2. Construction assessments, Crow Indian irrigation project (25 CFR 
Part 135).
    3. Fort Hall Indian irrigation project, Idaho (25 CFR Part 136).
    4. Reimbursement of construction costs, San Carlos Indian 
irrigation project, Arizona (25 CFR Part 137).
    5. Reimbursement of construction costs, Ahtanum Unit, Wapato Indian 
irrigation project, Washington CFR Part 138).
    6. Reimbursement of construction costs, Wapato-Satus Unit, Wapato 
Indian Irrigation project, Washington (25 CFR Part 139).
    7. Land acquisitions (25 CFR Part 151).
    8. Leasing and permitting (Lands) (25 CFR Part 162).
    9. Sale of lumber and other forest products produced by Indian 
enterprises from the forests on Indian reservation (25 CFR Part 164).
    10. Sale of forest products, Red Lake Indian Reservation, Minn. (25 
CFR Part 165).
    11. General grazing regulations (25 CFR Part 166).
    12. Navajo grazing regulations (25 CFR Part 167).
    13. Grazing regulations for the Hopi partitioned lands (25 CFR Part 
168).
    14. Rights-of-way over Indian lands (25 CFR Part 169).
    15. Roads of the Bureau of Indian Affairs (25 CFR Part 170).
    16. Concessions, permits and leases on lands withdrawn or acquired 
in connection with Indian irrigation projects (25 CFR Part 173).
    17. Indian Electric Power Utilities (25 CFR Part 175).
    18. Resale of lands within the badlands Air Force Gunnery Range 
(Pine Ridge Aerial Gunnery Range) (25 CFR Part 178).
    19. Leasing of tribal lands for mining (25 CFR Part 211).

[[Page 67847]]

    20. Leasing of allotted lands for mining (25 CFR Part 212).
    21. Leasing of restricted lands of members of Five Civilized 
Tribes, Oklahoma, for mining (25 CFR Part 213).
    22. Leasing of Osage Reservation lands, Oklahoma, for mining, 
except oil and gas (25 CFR Part 214).
    23. Lead and zinc mining operations and leases, Quapaw Agency (25 
CFR Part 215).
    24. Leasing of Osage Reservation lands for oil and gas mining (25 
CFR Part 226).
    25. Leasing of certain lands in Wind River Indian Reservation, 
Wyoming, for oil and gas mining (25 CFR Part 227).
    26. Indian fishing in Alaska (25 CFR Part 241).
    27. Commercial fishing on Red Lake Indian Reservation (25 CFR 242).
    28. Use of Columbia River in-lieu fishing sites (25 CFR Part 248).
    29. Off-reservation treaty fishing (25 CFR Part 249).
    30. Indian fishing--Hoopa Valley Indian Reservation (25 CFR Part 
150).
    31. Housing Improvement Program (25 CFR Part 256).
    32. Contracts under Indian Self-Determination Act (25 CFR Part 
271).
    33. Grants under Indian Self-Determination Act (25 CFR Part 272).
    34. School construction or services for tribally operated 
previously private schools (25 CFR Part 274).
    35. Uniform administration requirements for grants (25 CFR 276).
    36. School construction contracts for public schools (25 CFR Part 
277).
4.3 Major Actions Normally Requiring an EIS
    A. The following BIA actions normally require the preparation of an 
Environmental Impact Statement (EIS):
    1. Proposed mining contracts (for other than oil and gas), or the 
combination of a number of smaller contracts comprising a mining unit 
for:
    a. New mines of 640 acres or more, other than surface coal mines.
    b. New surface coal mines of 1,280 acres or more, or having an 
annual full production level of 5 million tons or more.
    2. Proposed water development projects which would, for example, 
inundate more than 1,000 acres, or store more than 30,000 acre-feet, or 
irrigate more than 5,000 acres of undeveloped land.
    3. Construction of a treatment, storage or disposal facility for 
hazardous waste or toxic substances.
    4. Construction of a solid waste facility for commercial purposes.
    B. In exceptional cases, where one of the above actions appears 
unlikely to have a significant impact on the human environment, an 
Environmental Assessment (EA), at least, must be prepared in accordance 
with 40 CFR 1508.9. In no case may one of these actions be treated as a 
categorical exclusion.
4.4  Categorical Exclusions
    In addition to the actions listed in the Department's categorical 
exclusions in Appendix 1 of 516 DM 2, many of which the BIA also 
performs, the following BIA actions are hereby designated as 
categorical exclusions unless the action qualifies as an exception 
under Appendix 2 of 516 DM 2. These activities are single, independent 
actions not associated with a larger, existing or proposed, complex or 
facility. If cases occur that involve larger complexes or facilities, 
an EA or supplement should be accomplished.
    A. Operation, maintenance, and replacement of existing facilities.
    Examples are normal renovation of buildings, road maintenance and 
limited rehabilitation of irrigation structures.
    B. Transfer of Existing Federal Facilities to Other Entities.
    Transfer of existing operation and maintenance activities of 
Federal facilities to tribal groups, water user organizations, or other 
entities where the anticipated operation and maintenance activities are 
agreed to in a contract, follow BIA policy, and no change in operations 
or maintenance is anticipated.
    C. Human resources programs.
    Examples are social services, education services, employment 
assistance, tribal operations, law enforcement and credit and financing 
activities not related to development.
    D. Administrative actions and other activities relating to trust 
resources.
    Examples are: Management of trust funds (collection and 
distribution), budget, finance, estate planning, wills and appraisals.
    E. Self-Determination and Self-Governance.
    1. Self-Determination Act contracts and grants for BIA programs 
listed as categorical exclusions, or for programs in which 
environmental impacts are adequately addressed in earlier NEPA 
analysis.
    2. Self-Governance compacts for BIA programs which are listed as 
categorical exclusions or for programs in which environmental impacts 
are adequately addressed in earlier NEPA analysis.
    F. Rights-of-Way.
    1. Rights-of-Way inside another right-of-way, or amendments to 
rights-of-way where no deviations from or additions to the original 
right-of-way are involved and where there is an existing NEPA analysis 
covering the same or similar impacts in the right-of-way area.
    2. Service line agreements to an individual residence, building or 
well from an existing facility where installation will involve no 
clearance of vegetation from the right-of-way other than for placement 
of poles, signs (including highway signs), or buried power/cable lines.
    3. Renewals, assignments and conversions of existing rights-of-way 
where there would be essentially no change in use and continuation 
would not lead to environmental degradation.
    G. Minerals.
    1. Approval of permits for geologic mapping, inventory, 
reconnaissance and surface sample collecting.
    2. Approval of unitization agreements, pooling or communitization 
agreements.
    3. Approval of mineral lease adjustments and transfers, including 
assignments and subleases.
    4. Approval of royalty determinations such as royalty rate 
adjustments of an existing lease or contract agreement.
    H. Forestry.
    1. Approval of free-use cutting, without permit, to Indian owners 
for on-reservation personal use of forest products, not to exceed 2,500 
board feet.
    2. Approval and issuance of cutting permits for forest products not 
to exceed $5,000 in value.
    3. Approval and issuance of paid timber cutting permits or 
contracts for products valued at less than $25,000 when in compliance 
with policies and guidelines established by a current management plan 
addressed in earlier NEPA analysis.
    4. Approval of annual logging plans when in compliance with 
policies and guidelines established by a current management plan 
addressed in earlier NEPA analysis.
    5. Approval of Fire Management Planning Analysis detailing 
emergency fire suppression activities.
    6. Approval of emergency forest and range rehabilitation plans when 
limited to environmental stabilization on less than 10,000 acres and 
not including approval of salvage sales of damaged timber.
    7. Approval of forest stand improvement projects of less than 2000 
acres when in compliance with policies and guidelines established by a 
current management plan addressed in earlier NEPA analysis.
    8. Approval of timber management access skid trail and logging road 
construction when consistent with policies and guidelines established 
by a current management plan addressed in earlier NEPA analysis.

[[Page 67848]]

    9. Approval of prescribed burning plans of less than 2000 acres 
when in compliance with policies and guidelines established by a 
current management plan addressed in earlier NEPA analysis.
    10. Approval of forestation projects with native species and 
associated protection and site preparation activities on less than 2000 
acres when consistent with policies and guidelines established by a 
current management plan addressed in earlier NEPA analysis.
    I. Land Conveyance and Other Transfers.
    Approvals or grants of conveyances and other transfers of interests 
in land where no change in land use is planned.
    J. Reservation Proclamations.
    Lands established as or added to a reservation pursuant to 25 
U.S.C. 467, where no change in land use is planned.
    K. Waste Management.
    1. Closure operations for solid waste facilities when done in 
compliance with other federal laws and regulations and where cover 
material is taken from locations which have been approved for use by 
earlier NEPA analysis.
    2. Activities involving remediation of hazardous waste sites if 
done in compliance with applicable federal laws such as the Resource 
Conservation and Recovery Act (Pub. L. 94-580), Comprehensive 
Environmental Response, Compensation, and Liability Act (Pub. L. 96-
516) or Toxic Substances Control Act (Pub. L. 94-469).
    L. Roads and Transportation.
    1. Approval of utility installations along or across a 
transportation facility located in whole within the limits of the 
roadway right-of-way.
    2. Construction of bicycle and pedestrian lanes and paths adjacent 
to existing highways and within the existing rights-of-way.
    3. Activities included in a ``highway safety plan'' under 23 CFR 
Part 402.
    4. Installation of fencing, signs, pavement markings, small 
passenger shelters, traffic signals, and railroad warning devices where 
no substantial land acquisition or traffic disruption will occur.
    5. Emergency repairs under 23 U.S.C. 125.
    6. Acquisition of scenic easements.
    7. Alterations to facilities to make them accessible for the 
elderly or handicapped.
    8. Resurfacing a highway without adding to the existing width.
    9. Rehabilitation, reconstruction or replacement of an existing 
bridge structure on essentially the same alignment or location (eg. 
widening, adding shoulders or safety lanes, walkways, bikeways or 
guardrails).
    10. Approvals for changes in access control within existing right-
of-ways.
    11. Road construction within an existing right-of-way which has 
been acquired for a HUD housing project, and for which earlier NEPA 
analysis already exists.
    M. Other.
    1. Data gathering activities such as inventories, soil and range 
surveys, timber cruising, geological, geophysical, archeological, 
paleontological and cadastral surveys.
    2. Establishment of non-disturbance environmental quality 
monitoring programs and field monitoring stations including testing 
services.
    3. Approval of an Application for Permit to Drill for a new water 
source or observation well.
    4. Approval of conversion of an abandoned oil well to a water well 
if water facilities are established only near the well site.
    5. Approval and issuance of permits under the Archaeological 
Resources Protection Act (16 U.S.C. 470aa-ll) when the permitted 
activity is being done as a part of an action for which an NEPA 
analysis has been, or is being prepared.

    Dated: December 16, 1996.
Dr. Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 96-32588 Filed 12-23-96; 8:45 am]
BILLING CODE 4310-W7-P