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Notice of Proposed Changes to Procedures; Request for Comments

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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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 Start Printed Page 13204published and added to the Electronic Library of Interior Policies (ELIPS). ELIPS is located at:​.

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.


Submit comments on or before April 18, 2005.


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:

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Willie R. Taylor, Director, Office of Environmental Policy and Compliance; 1849 C Street, NW.; Washington, DC 20240. Telephone: 202-208-6661. e-mail: 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.

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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 Start Printed Page 13205and 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.


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.

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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

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Christopher B. Kearney,

Deputy Assistant Secretary for Policy and International Affairs.

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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 Start Printed Page 13206to 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.

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