[Federal Register Volume 71, Number 236 (Friday, December 8, 2006)]
[Rules and Regulations]
[Pages 71047-71051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20940]


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DEPARTMENT OF JUSTICE

28 CFR Part 61

[Docket No. USMS 101]
RIN 1105-AB13


Supplement to Justice Department Procedures and Council on 
Environmental Quality Regulations To Ensure Compliance With the 
National Environmental Policy Act

AGENCY: United States Marshals Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule adds Appendix E to part 61 of the Department of 
Justice's regulations to ensure better compliance with the National 
Environmental Policy Act (NEPA) of 1969. The rule supplements existing 
Department procedures and regulations of the Council on Environmental 
Quality and only pertains to internal procedures of the United States 
Marshals Service (USMS).

EFFECTIVE DATE: This rule is effective January 8, 2007.

FOR FURTHER INFORMATION CONTACT: Joseph Band, Office of Chief Counsel, 
United States Marshals Service, Washington, DC 20002; Telephone (202) 
307-9722.

SUPPLEMENTARY INFORMATION:

Background

    The USMS published a notice of proposed rulemaking on this subject 
on January 10, 2006 (71 FR 3248). The USMS received no comments before 
the comment period closed on March 21, 2006. Accordingly, this document 
finalizes the proposed rule without change.

Need for This Rule

    This rule is needed so that the USMS can comply more fully with 
NEPA. Under NEPA, Federal agencies are required to implement internal 
procedures to ensure proper environmental consideration of proposed 
agency actions. The internal procedures promote the protection of the 
environment by minimizing the use of natural resources and by improving 
planning and decision-making processes to avoid excess pollution and 
environmental degradation.

Overview of the Rule's Standards

    In complying with and implementing NEPA, the USMS shall make 
efforts to produce clear and concise NEPA documents and increase 
administrative efficiency.
    All NEPA documents, specifically Environmental Assessments (EAs) 
and Environmental Impact Statements (EISs), shall be analytical, clear, 
and concise. The documents shall focus on significant issues and shall 
be presented in plain language and in the standard format outlined in 
Appendix E. In order to reduce paperwork, EISs shall be limited to 
approximately 150 pages, or in unusually complex matters, 300 pages. To 
avoid duplicative work, NEPA documents shall, whenever possible, be 
prepared jointly with State and local governments and shall adopt, 
incorporate by reference, or combine, existing USMS and other agencies' 
analyses, documentation, and/or other environmental reports.
    The USMS shall make every effort to prevent and reduce delay. The 
USMS will follow the procedures outlined in the CEQ regulations 
including, (1) Integrating the NEPA process in the early stages of 
planning to ensure that decisions reflect environmental values, and to 
head off potential conflicts and/or delays, (2) emphasizing inter-
agency cooperation before the environmental analysis and documentation 
is prepared, (3) ensuring the swift and fair resolution of any dispute 
by designating a lead agency for any inter-agency projects, (4) 
employing the scoping process to distinguish the significant issues 
requiring consideration in the NEPA analysis, (5) setting deadlines for 
the NEPA process as appropriate for individual proposed actions, (6) 
initiating the NEPA analysis as early as possible to coincide with the 
agency's presentation of a proposal by another party, and (7) using 
accelerated procedures as described in the CEQ regulations for 
legislative proposals.

Implementation of Changes

    Through this rule, the USMS is revising its guidance, establishing 
policy, and assigning responsibilities for implementing the 
requirements of Section 102(2) of NEPA (42 U.S.C. 4321, et seq.), 
Executive Order 11514 of March 5, 1970, titled ``Protection and 
Enhancement of Environmental Quality,'' and regulations of the CEQ (40 
CFR parts 1500-1508).
    This rule is intended to (1) Enhance the USMS' ability to comply 
with NEPA, related legal authorities, and Executive Orders, (2) allow 
non-significant program actions to be exempt from the requirement to 
prepare an EA or EIS, (3) focus NEPA analysis upon major Federal 
actions significantly affecting the quality of the environment, (4) 
ensure public involvement in decision-making regarding environmental 
impact on local communities, and (5) reflect changes in the current 
USMS organizational structure. Development of these revised regulations 
was orchestrated by USMS headquarters and district office personnel who 
represent the USMS' collective technical and managerial expertise in 
environmental quality and NEPA compliance. In addition to revising part 
61 by adding Appendix E, the USMS will provide guidance materials to 
district offices.
    These changes affect USMS internal procedures. The USMS consulted 
with the CEQ during the development of this rule.

Regulatory Certifications

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' Sec.  1 (b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is not a ``significant regulatory action'' under Executive 
Order 12866, Sec.  3(f), Regulatory Planning and Review; and, 
accordingly, this rule has not been reviewed by the Office of 
Management and Budget. This rule provides environmental benefits by 
ensuring the USMS compliance with NEPA to improve planning and avoid 
excess pollution and environmental degradation. Further, this rule 
affects

[[Page 71048]]

USMS internal procedures. Whatever costs that may result from this rule 
should be outweighed by the reduction in delay and excessive paperwork 
from the improved procedures.

Executive Order 13132

    This regulation only affects the internal procedures of the USMS 
and, accordingly, will not have substantial direct effects on the 
States, relationship between the national government and the States, or 
the distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with Executive Order 13132, it 
is determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Director of the USMS, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and 
approved it, certifying that it will not have a significant economic 
impact on a substantial number of small entities because this 
regulation only affects the internal procedures of the USMS.

Unfunded Mandates Reform Act of 1995

    This rule will not result in an expenditure of $100,000,000 or more 
in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector, nor will it significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more, 
a major increase in costs or prices, significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Environmental Impact

    This rule supplements CEQ regulations and provides guidance to USMS 
employees regarding procedural requirements for NEPA analysis and 
documentation activities. In accordance with NEPA, the rule implements 
procedures that establish specific criteria, and identification, for 
three classes of actions: Those that require preparation of an 
environmental impact statement, those that require preparation of an 
environmental assessment, and those that are categorically excluded 
from further NEPA review (40 CFR 1507.3(b)). However, these procedures 
only provide internal guidance to assist USMS employees and do not 
serve to make the final determination of what level of NEPA analysis is 
required for any particular proposed action. The CEQ does not require 
agencies to prepare a NEPA analysis or document before establishing 
such procedures. See Heartwood, Inc. v. U.S. Forest Service, 73 F. 
Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th 
Cir. 2000) (holding that establishing categorical exclusions does not 
require NEPA analysis and documentation). The requirements for 
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 
1507.3. The USMS consulted with the CEQ during the development of these 
categorical exclusions and provided an opportunity for public review.

List of Subjects in 28 CFR Part 61

    Environmental protection, Environmental impact statements.

0
Accordingly, for the reasons set forth in the preamble, part 61 of 
chapter I of Title 28 of the Code of Federal Regulations is amended to 
read as follows:
0
1. The authority citation for part 61 continues to read as follows:

    Authority: 28 U.S.C. 509; 5 U.S.C. 301; Executive Order 11911.

0
2. Appendix E to part 61 is added to read as follows:

Appendix E to Part 61--United States Marshals Service Procedures 
Relating to the Implementation of the National Environmental Policy Act

1. Authority

    These procedures are issued pursuant to the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., 
regulations of the Council on Environmental Quality (CEQ), 40 CFR 
part 1500, et seq., regulations of the Department of Justice (DOJ), 
28 CFR part 61, et seq., the Environmental Quality Improvement Act 
of 1970, as amended, 42 U.S.C. 4371, et seq., Section 309 of the 
Clean Air Act, as amended, 42 U.S.C. 7609, and Executive Order 
11514, ``Protection and Enhancement of Environmental Quality,'' 
March 5, 1970, as amended by Executive Order 11991, May 24, 1977.

2. Purpose

    These provisions supplement existing DOJ and CEQ regulations and 
outline internal USMS procedures to ensure compliance with NEPA. 
Through these provisions, the USMS shall promote the environment by 
minimizing the use of natural resources, and by improving planning 
and decision-making processes to avoid excess pollution and 
environmental degradation.
    The USMS' Environmental Assessments (EAs) and Environmental 
Impact Statements (EISs) shall be as concise as possible and EISs 
should be limited to approximately 150 pages in normal circumstances 
or 300 pages for proposals of unusual scope or complexity. The USMS 
shall, whenever possible, jointly prepare documents with State and 
local governments and, when appropriate, avoid duplicative work by 
adopting, or incorporating by reference, existing USMS and other 
agencies' analyses and documentation.
    In developing an EA or EIS, the USMS shall comply with CEQ 
regulations, observing that EAs and EISs should (1) Be analytic, 
rather than encyclopedic, (2) be written in plain language, (3) 
follow a clear, standard format in accordance with CEQ regulations, 
(4) follow a scoping process to distinguish the significant issues 
from the insignificant issues, (5) include a brief summary, (6) 
emphasize the more useful sections of the document, such as the 
discussions of alternatives and their environmental consequences, 
while minimizing the discussion of less useful background 
information, (7) scrutinize existing NEPA documentation for relevant 
analyses of programs, policies, or other proposals that guide future 
action to eliminate repetition, (8) where appropriate, incorporate 
material by reference, with citations and brief descriptions, to 
avoid excessive length, and (9) integrate NEPA requirements with 
other environmental review and consultation requirements mandated by 
law, Executive Order, Department of Justice policy, or USMS policy. 
When preparing an EA or EIS, the USMS shall request comments to be 
as specific as possible.
    To ensure compliance with NEPA, the USMS shall make efforts to 
prevent and reduce delay. The USMS will follow the procedures 
outlined in the CEQ regulations including, (1) Integrating the NEPA 
process in the early stages of planning to ensure that decisions 
reflect environmental values, and to head off potential conflicts 
and/or delays, (2) emphasizing inter-agency cooperation before the 
environmental analysis and documentation is prepared, (3) ensuring 
the swift and fair resolution of any dispute over the designation of 
the lead agency, (4) employing the scoping process to distinguish 
the significant issues requiring consideration in the NEPA analysis, 
(5) setting deadlines for the NEPA process as appropriate for 
individual proposed actions, (6) initiating the NEPA analysis as 
early as possible to coincide with the agency's consideration of a 
proposal by another party, and (7) using accelerated procedures, as 
described in the CEQ regulations, for legislative proposals.

[[Page 71049]]

3. Agency Description

    The USMS is a Federal law enforcement agency. The agency 
performs numerous law enforcement activities, including judicial 
security, warrant investigations, witness protection, custody of 
individuals arrested by Federal agencies, prisoner transportation, 
management of seized assets, and other law enforcement missions.

4. Typical Classes of USMS Actions

    (a) The general types of proposed actions and projects that the 
USMS undertakes are as follows:
    (1) Operational concepts and programs, including logistics 
procurement, personnel assignment, real property and facility 
management, and environmental programs,
    (2) Transfers or disposal of equipment or property,
    (3) Leases or entitlement for use, including donation or 
exchange,
    (4) Federal contracts, actions, or agreements for detentions 
services. A detention facility may be a facility (A) owned and/or 
operated by a contractor, or (B) owned and/or operated by a State or 
local government, and
    (5) General law enforcement activities that are exempt from NEPA 
analysis under CEQ regulation 40 CFR 1508.18 that involve bringing 
judicial, administrative, civil, or criminal enforcement actions.
    (b) Scope of Analysis.
    (1) Some USMS projects, contracts, and agreements may propose a 
USMS action that is one component of a larger project involving a 
private action or an action by a local or State government. The 
USMS' NEPA analysis and document (e.g., the EA or EIS) should 
address the impact of the specific USMS activity and those portions 
of the entire project over which the USMS has sufficient control and 
responsibility to warrant Federal review.
    (2) The USMS has control and responsibility for portions of a 
project beyond the limits of USMS jurisdiction where the 
environmental consequences of the larger project are essentially 
products of USMS specific action. This control turns an otherwise 
non-federal project into a Federal action.
    (3) Sufficient control and responsibility for a facility is a 
site-specific determination based on the extent to which an entire 
project will be within the agency's jurisdiction and on other 
factors that determine the extent of Federal control and 
responsibility. For example, for construction of a facility, other 
factors would include, but not be limited to, the length of the 
contract for construction or use of the facility, the extent of 
government control and funding in the construction or use of the 
facility, whether the facility is being built solely for Federal 
requirements, the extent to which the costs of construction or use 
will be paid with Federal funds, the extent to which the facility 
will be used for non-Federal purposes, and whether the project 
should proceed without USMS action.
    (4) Some USMS projects, contracts, and agreements may propose a 
USMS action that is one component of a larger project involving 
actions by other Federal agencies. Federal control and 
responsibility determines whether the total Federal involvement of 
the USMS and other Federal agencies is sufficient to grant legal 
control over additional portions of the project. NEPA review would 
be extended to an entire project when the environmental consequences 
of the additional portions of the project are essentially products 
of Federal financing, assistance, direction, regulation, or 
approval. The USMS shall contact the other Federal agencies involved 
in the action to determine their respective roles (i.e., whether to 
be a lead or cooperating agency).
    (5) Once the scope of analysis has been defined, the NEPA 
analysis for an action should include direct, indirect, and 
cumulative impacts of all Federal proposals within the purview of 
NEPA. Whenever practicable, the USMS can incorporate by reference, 
and rely upon, the environmental analyses and reviews of other 
Federal, tribal, State, and local agencies.

5. Environmental Impact Statement (EIS)

    (a) An EIS is a document required of Federal agencies for 
proposals significantly affecting the quality of the human 
environment. EIS describes the positive and negative effects of the 
proposed action and any reasonable alternatives. A Notice of Intent 
(NOI) will be published in the Federal Register as soon a 
practicable after a decision to prepare an EIS is made and before 
the scoping process is initiated. An EIS shall describe how 
alternatives considered in it, and the decisions based on it, will 
or will not achieve the goals of NEPA to prevent damage to the 
environment and promote human health. Additionally, an EIS shall 
describe how the USMS will comply with relevant environmental laws 
and policies. The format and content of an EIS are set out at 40 CFR 
part 1502. The USMS may prepare an EIS without prior preparation of 
an EA.
    (b) A Record of Decision (ROD) will be prepared at the time a 
decision is made regarding a proposal that is analyzed and 
documented in an EIS. The ROD will state the decision, discuss the 
alternatives considered, and state whether all alternative 
practicable means to avoid or minimize environmental harms have been 
adopted, or if not, why they were not adopted. Where applicable, the 
ROD will also describe and adopt a monitoring and enforcement 
program for any mitigation.
    (c) Actions that normally require preparing an EIS include:
    (1) USMS actions that are likely to have a significant 
environmental impact on the human environment, or
    (2) Construction of a major facility on a previously undisturbed 
site.

6. Environmental Assessment (EA)

    (a) An EA is a concise public document that is prepared for 
actions that do not normally require preparation of an EIS, but do 
not meet the requirements of a Categorical Exclusion (CE). An EA 
serves to briefly provide sufficient evidence and analysis for 
determining whether to prepare an EIS or a Finding of No Significant 
Impact (FONSI), aid in complying with NEPA when an EIS is not 
necessary, and facilitate preparation of an EIS when one is 
required. The EA results in either a determination that a proposed 
action may have a significant impact on the human environment, and 
therefore, requires further study in an EIS, or the issuance of a 
FONSI. The contents of an EA are described at 40 CFR 1508.9.
    (b) A FONSI will include the EA or a summary of the EA. The 
FONSI will be prepared and made available to the public through 
means described in paragraph 9 of this Appendix, including 
publication in local newspapers and in the Federal Register for 
matters of national concern. The FONSI will be available for review 
and comment for 30 days prior to signature and the initiation of the 
action, unless special circumstances warrant reducing the public 
comment period to 15 days. Implementing the action can proceed after 
consideration of public comments and the decision-maker signs the 
FONSI.
    (c) Actions that normally require preparation of an EA include:
    (1) Proposals to conduct an expansion of an existing facility,
    (2) Awarding a contract or entering into an agreement for new 
construction at a previously developed site, or an expansion of an 
existing facility, or
    (3) Projects or other proposed actions that are activities 
described in categorical exclusions, but do not qualify for a 
categorical exclusion because they involve extraordinary 
circumstances.

7. Categorical Exclusions (CE)

    (a) CEs are certain categories of activities determined not to 
have individual or cumulative significant effects on the human 
environment, and absent extraordinary circumstances, are excluded 
from preparation of an EA, or EIS, under NEPA. Using CEs for such 
activities reduces unnecessary paperwork and delay. Such activities 
are not excluded from compliance with other applicable local, State, 
or Federal environmental laws.
    (b) Extraordinary circumstances must be considered before 
relying upon a CE to determine whether the proposed action may have 
a significant environmental effect. Any of the following 
circumstances preclude the use of a CE:
    (1) The project may have effects on the quality of the 
environment that are likely to be highly controversial;
    (2) The scope or size of the project is greater than normally 
experienced for a particular action described in subsection (c) 
below;
    (3) There is potential for degradation, even if slight, of 
already-existing poor environmental conditions;
    (4) A degrading influence, activity, or effect is initiated in 
an area not already significantly modified from its natural 
condition;
    (5) There is a potential for adverse effects on areas of 
critical environmental concern or other protected resources 
including, but not limited to, threatened or endangered species or 
their habitats, significant archaeological materials, prime or 
unique agricultural lands, wetlands, coastal zones, sole source 
aquifers, 100-year-old flood plains, places listed,

[[Page 71050]]

proposed, or eligible for listing on the National Register of 
Historic Places, natural landmarks listed, proposed, or eligible for 
listing on the National Registry of Natural Landmarks, Wilderness 
Areas or wilderness study areas, or Wild and Scenic River areas; or
    (6) Possible significant direct, indirect, or cumulative 
environmental impacts exist.
    (c) Actions that normally qualify for a CE include:
    (1) Minor renovations or repairs within an existing facility, 
unless the project would adversely affect a structure listed in the 
National Register of Historic Places or is eligible for listing in 
the register,
    (2) Facility expansion, or construction of a limited addition to 
an existing structure, or facility, and new construction or 
reconstruction of a small facility on a previously developed site. 
The exclusion applies only if:
    (i) The structure and proposed use comply with local planning 
and zoning and any applicable State or Federal requirements; and
    (ii) The site and the scale of construction are consistent with 
those of existing adjacent or nearby buildings.
    (3) Security upgrades of existing facility grounds and perimeter 
fences, not including such upgrades as adding lethal fences or major 
increases in height or lighting of a perimeter fence in a 
residential area or other area sensitive to the visual impacts 
resulting from height or lighting changes,
    (4) Federal contracts or agreements for detentions services, 
including actions such as procuring guards for detention services or 
leasing bed space (which may include operational costs) from an 
existing facility operated by a State or a local government or a 
private correctional corporation,
    (5) General administrative activities that involve a limited 
commitment of resources, such as personnel actions or policy related 
to personnel issues, organizational changes, procurement of office 
supplies and systems, and commitment or reallocation of funds for 
previously reviewed and approved programs or activities,
    (6) Change in contractor or Federal operators at an existing 
contractor-operated correctional or detention facility,
    (7) Transferring, leasing, maintaining, acquiring, or disposing 
of interests in land where there is no change in the current scope 
and intensity of land use, including management and disposal of 
seized assets pursuant to Federal laws,
    (8) Transferring, leasing, maintaining, acquiring, or disposing 
of equipment, personal property, or vessels that do not increase the 
current scope and intensity of USMS activities, including management 
and disposal of seized assets pursuant to Federal forfeiture laws,
    (9) Routine procurement of goods and services to support 
operations and infrastructure that are conducted in accordance with 
Department of Justice energy efficiency policies and applicable 
Executive Orders, such as E.O. 13148,
    (10) Routine transportation of prisoners or detainees between 
facilities and flying activities in compliance with Federal Aviation 
Administration Regulations, only applicable where the activity is in 
accordance with normal flight patterns and elevations for the 
facility and where the flight patterns/elevations have been 
addressed in an installation master plan or other planning document 
that has been the subject of a NEPA review, and
    (11) Lease extensions, renewals, or succeeding leases where 
there is no change in the intensity of the facility's use.

8. Responsibilities

    (a) The Director of the USMS, in conjunction with the Senior 
Environmental Advisor, possesses authority over the USMS NEPA 
compliance.
    (b) The Senior Environmental Advisor's duties include:
    (1) Advising the Director or other USMS decisionmakers on USMS 
NEPA procedures and compliance,
    (2) Supervising the Environmental Coordinator,
    (3) Acting as NEPA liaison to CEQ for the Director and other 
USMS decisionmakers on important decisions outside the authority of 
the Environmental Coordinator,
    (4) Consulting with CEQ regarding alternative NEPA procedures 
requiring the preparation of an EIS in emergency situations, and
    (5) Consulting with CEQ and officials of other Federal agencies 
to settle agency disputes over the NEPA process, including 
designating lead and cooperating agencies.
    (c) The USMS Environmental Coordinator will act as the agency's 
NEPA contact, and will be responsible for:
    (1) Ensuring that adequate EAs and EISs are prepared at the 
earliest possible time, ensuring that decisions are made in 
accordance with the general policies and purposes of NEPA, verifying 
information provided by applicants, evaluating environmental 
effects; assuring that, when appropriate, EAs and EISs contain 
documentation from independent parties with expertise in particular 
environmental matters, taking responsibility for the scope and 
content of EAs prepared by applicants, and returning EAs and EISs 
that are found to be inadequate,
    (2) Ensuring that the USMS conducts an independent evaluation, 
and where appropriate, prepares a FONSI, a NOI, and/or a ROD,
    (3) Coordinating the efforts for preparation of an EIS 
consistent with the requirements of the CEQ regulations at 40 CFR 
part 1500-1508,
    (4) Cooperating and coordinating planning efforts with other 
Federal agencies, and
    (5) Providing for agency training on environmental matters.
    (d) The agency shall ensure compliance with NEPA for cases where 
actions are planned by private applicants or other non-Federal 
entities before Federal involvement. The USMS, through the 
Environmental Coordinator shall:
    (1) Identify types of actions initiated by private parties, 
State and local agencies and other non-Federal entities for which 
agency involvement is reasonably foreseeable,
    (2) Provide (A) full public notice that agency advice on such 
matters is available, (B) detailed written publications containing 
that advice, and (C) early consultation in cases where agency 
involvement is reasonably foreseeable, and
    (3) Consult early with appropriate Indian tribes, State and 
local agencies, and interested private persons and organizations on 
those projects in which the USMS involvement is reasonably 
foreseeable.
    (e) To assist in ensuring that all Federal agencies' decisions 
are made in accordance with the general policies and purposes of 
NEPA, the USMS, through the Environmental Coordinator shall:
    (1) Comment within the specified time period on other Federal 
agencies' EISs, where the USMS has jurisdiction by law regarding a 
project, and make such comments as specific as possible with regard 
to adequacy of the document, the merits of the alternatives, or 
both,
    (2) Where the USMS is the lead agency on a project, coordinate 
with other Federal agencies and supervise the development of and 
retain responsibility for the EIS,
    (3) Where the USMS is a cooperating agency on a project, 
cooperate with any other Federal agency acting as lead agency 
through information sharing and staff support,
    (4) Independently evaluate, provide guidance on, and take 
responsibility for scope and contents of NEPA analyses performed by 
contractors or applicants used by USMS. When the USMS is the lead 
agency, USMS will choose the contractor to prepare an EIS, require 
the contractor to execute a disclosure statement stating that the 
contractor has no financial or other interest in the outcome of the 
project, and participate in the preparation of the EIS by providing 
guidance and an independent evaluation prior to approval,
    (5) Consider alternatives to a proposed action where it involves 
unresolved conflicts concerning available resources. The USMS shall 
make available to the public, prior to a final decision, any NEPA 
documents and additional decision documents, or parts thereof, 
addressing alternatives,
    (6) Conduct appropriate NEPA procedures for the proposed action 
as early as possible for consideration by the appropriate decision-
maker, and ensure that all relevant environmental documents, 
comments, and responses accompany the proposal through the agency 
review process for the final decision,
    (7) Include, as part of the administrative record, relevant 
environmental documents, comments, and responses in formal 
rulemaking or adjudicatory proceedings, and
    (8) Where emergency circumstances require taking action that 
will result in a significant environmental impact, contact CEQ via 
the USMS Senior Environmental Advisor for consultation on 
alternative arrangements, which will be limited to those necessary 
to control the immediate impacts of the emergency.

9. Public Involvement

    (a) In accordance with NEPA and CEQ regulations and to ensure 
public involvement in decision-making regarding environmental impact 
on local communities, the USMS shall also engage in the following 
procedures during its NEPA process:

[[Page 71051]]

    (1) When preparing an EA, EIS, or FONSI, USMS personnel in 
charge of preparing the document will invite comment from affected 
Federal, tribal, State, local agencies, and other interested 
persons, as early as the scoping process;
    (2) The USMS will disseminate information to potentially 
interested or affected parties, such as local communities and Indian 
tribes, through such means as news releases to various local media, 
announcements to local citizens groups, public hearings, and posted 
signs near the affected area;
    (3) The USMS will mail notice to those individuals or groups who 
have requested one on a specific action or similar actions;
    (4) For matters of national concern, the USMS will publish 
notification in the Federal Register, and will send notification by 
mail to national organizations reasonably expected to be interested;
    (5) If a decision is made to develop an EIS, the USMS will 
publish a NOI in the Federal Register as soon as possible;
    (6) The personnel in charge of preparing the NEPA analysis and 
documentation will invite public comment and maintain two-way 
communication channels throughout the NEPA process, provide 
explanations of where interested parties can obtain information on 
status reports of the NEPA process and other relevant documents, and 
keep all public affairs officers informed;
    (7) The USMS will establish a Web site to keep the public 
informed; and
    (8) During the NEPA process, responsible personnel will consult 
with local government and tribal officials, leaders of citizen 
groups, and members of identifiable population segments within the 
potentially affected environment, such as farmers and ranchers, 
homeowners, small business owners, minority and disadvantaged 
communities, and tribal members.

10. Scoping

    Prior to starting the NEPA analysis, USMS personnel responsible 
for preparing either an EA or EIS, shall engage in an early scoping 
process to identify the significant issues to be examined in depth, 
and to identify and eliminate from detailed study those issues which 
are not significant or which have been adequately addressed by prior 
environmental review. The scoping process should identify any other 
environmental analyses being conducted relevant to the proposed 
action, address timing and set time limits with respect to the NEPA 
process, set page limits, designate respective responsibilities 
among the lead and cooperating agencies, identify any other 
environmental review and consultation requirements to allow for 
integration with the NEPA analysis, and hold an early scoping 
meeting that may be integrated with other initial planning meetings.

11. Mitigation and Monitoring

    USMS personnel, who are responsible for preparing NEPA analyses 
and documents, will consider mitigation measures to avoid or 
minimize environmental harm. EAs and EISs will consider reasonable 
mitigation measures relevant to the proposed action and 
alternatives. Paragraph 5(b) of this Appendix describes the 
requirements for documenting mitigation measures in a ROD.

12. Supplementing an EA or EIS

    When substantial changes are made to a proposed action that is 
relevant to environmental concerns, a supplement will be prepared 
for an EA or a draft or a final EIS. A supplement will also be 
prepared when significant new circumstances arise or new relevant 
information surfaces concerning and bearing upon the proposed action 
or its impacts. Any necessary supplement shall be processed in the 
same way as an original EA or EIS, with the exception that new 
scoping is not required. Any supplement shall be added to the formal 
administrative record, if such record exists.

13. Compliance With Other Environmental Statutes

    To the extent practicable, a NEPA document shall include 
information necessary to assure compliance with all applicable 
environmental statutes.

    Dated: November 8, 2006.
John F. Clark,
Director, United States Marshals Service.
[FR Doc. E6-20940 Filed 12-7-06; 8:45 am]
BILLING CODE 4410-04-P