[Federal Register Volume 70, Number 52 (Friday, March 18, 2005)]
[Notices]
[Pages 13203-13206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5416]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


Notice of Proposed Changes to Procedures; Request for Comments

SUMMARY: These proposed changes to procedures modify the Departmental 
Manual at 516 DM 2.5, Cooperating Agencies (40 CFR 1501.6). These 
proposed procedures clarify the responsibility of managers to offer 
this status to qualified agencies and governments, and to respond to 
requests for this status. These proposed procedures also make clear the 
role of cooperating agencies in the implementation of the Department's 
National Environmental Policy Act (NEPA) compliance process. When 
adopted, these procedures will be

[[Page 13204]]

published and added to the Electronic Library of Interior Policies 
(ELIPS). ELIPS is located at: http://elips.doi.gov/.
    The proposed 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.

DATES: Submit comments on or before April 18, 2005.

ADDRESSES: Comments may be mailed to: Department of the Interior; NEPA 
Revised Implementing Procedures; c/o Office of Environmental Policy and 
Compliance; U.S. Department of the Interior; MS 2342--MIB, 1849 C St 
NW., Washington DC 20240. Comments may also be faxed to the Office of 
Environmental Policy and Compliance (OEPC) at: 202/208-6970. Finally 
comments may be e-mailed to the OEPC: [email protected].

FOR FURTHER INFORMATION CONTACT: Willie R. Taylor, Director, Office of 
Environmental Policy and Compliance; 1849 C Street, NW.; Washington, DC 
20240. Telephone: 202-208-6661. e-mail: [email protected]. 
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: General: 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 proposing to strengthen 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 procedures will reinforce 
existing bureau procedures that encourage the types of cooperation 
envisioned in the EO 13352. The Department of the Interior long has 
promoted, and has 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 proposed changes provide Department-wide direction to 
proactively engage States, Tribes and local governments in the 
development of all environmental impact statements.
    Background and Purpose: Current Departmental policy emphasizes the 
importance of forming partnerships with Federal and State agencies, 
tribal and local, and private landowners to ensure effective 
participation in the management of Federal lands. These proposed 
procedural changes clarify the Department's expectation that bureaus 
will ensure that qualified Federal and non-Federal agencies have 
meaningful opportunities to participate as cooperating agencies when a 
bureau develops an environmental impact statement, in accordance with 
NEPA. These proposed procedures will strengthen the Department's 
commitment to employ all practicable means for facilitating 
cooperation, collaboration, and consultation. The Department believes 
that cooperative conservation is an important tool for working with 
other agencies and governments, Tribes, and private landowners.
    These proposed changes to cooperating agency procedures:
     Require bureaus to invite eligible governmental entities 
to participate as cooperating agencies when the bureau is developing an 
environmental impact statement;
     Require bureaus to consider any requests by governmental 
entities to participate as a cooperating agency with respect to a 
particular environmental impact statement; and
     Ensure that throughout the development of an environmental 
impact statement, the bureau will collaborate with all cooperating 
agencies, to the fullest extent practicable.
    These proposed changes do not affect any other public participation 
requirements of the Department. The collaboration between the 
Department's bureaus and cooperating agencies envisioned by these 
proposed changes will supplement existing requirements to engage the 
public in the decision making process.
    Because cooperating agencies are government agencies, meetings 
between the Department's bureaus and offices and agencies that hold 
cooperating agency status would not normally be subject to the 
requirements of the Federal Advisory Committee Act (FACA), 5 U.S.C. 
Appendix 1. This is because section 204 (b) of the Unfunded Mandates 
Reform Act of 1995, Pub. L. 104-4, provides that FACA does not apply to 
meetings held exclusively between Federal officials and officers of 
State, tribal and local governments.
    In accordance with 1507.3 of the CEQ Regulations, this Department 
is consulting with CEQ and is hereby requesting public review and 
comment on the proposed procedures.
    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 draft, 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

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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 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. However, this policy will likely improve and 
enhance the tribal relationship with Federal agencies.

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

Christopher B. Kearney,
Deputy Assistant Secretary for Policy and International Affairs.

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). Bureaus will consider requests 
to participate as a cooperating agency with respect to a particular 
environmental impact statement and will either accept or deny such 
requests given the bureau's other program commitments and the 
bureau's expertise. If such a request is denied, the bureau will 
respond in writing as provided for in 40 CFR 1501.6(c),
    C. Upon the request of the lead agency, any Federal agency that 
is qualified to participate in the NEPA process as a cooperating 
agency 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

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to participate in the NEPA process as a cooperating agency as 
provided for in 40 CFR 1501.6 and 1508.5 by virtue of its special 
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. (CEQ 
guidance to agencies dated July 28, 1999, and January 30, 2002, 
urges agencies to more actively solicit participation of Federal, 
State, tribal, and local governments as cooperating agencies.)
    D. Bureaus will invite governmental entities that are qualified 
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 respect to a particular 
environmental impact statement, and will either accept or deny such 
requests. If such a request is denied, bureaus will respond in 
writing to the requestor and provide a summary of the request and 
reasons for such denial within the environmental impact statement.
    E. Throughout the development of an 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;
    (5) 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.
    F. Bureaus and governmental entities that are potential 
cooperating agencies are required to express in a memorandum of 
understanding their respective roles, assignment of issues, 
schedules, and staff commitments so that the process of preparing an 
environmental impact statement remains on track and within the time 
schedule.

[FR Doc. 05-5416 Filed 3-17-05; 8:45 am]
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