E9-28879. National Environmental Policy Act (NEPA) Implementing Procedures

AGENCY:

Office of the Secretary, Interior.

ACTION:

Notice of proposed change to the Departmental Manual; request for comments.

SUMMARY:

The Department of the Interior (Department) proposes to amend its Departmental Manual (DM) by adding a new chapter to provide supplementary requirements for implementing the National Environmental Policy Act (NEPA) within the Department's Office of Hawaiian Relations (OHR). By publishing these changes in the Federal Register, the Department intends to promote greater transparency and accountability to the public and enhance cooperative conservation.

DATES:

Submit comments by January 4, 2010.

ADDRESSES:

You may submit comments by any of the following methods. Please reference 516 DM 7 in your message. See also “Public availability of comments” under Procedural Requirements below.

• E-mail [e-mail] and use the reference “516 DM 7” in the subject line.
• Fax: [phone]. Identify with “516 DM 7”.
• Mail or hand-carry comments to the Department of the Interior, Office of Hawaiian Relations, Room Number 3543, Main Interior Building, 1849 C Street, NW., Washington, DC 20240. Please reference “516 DM 7” in your comments and also include your name and return address.
• Public availability of comments—before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

FOR FURTHER INFORMATION CONTACT:

Ka‘i‘ini Kaloi, Director; Office of Hawaiian Relations; 1849 C Street, NW.; Washington, DC 20240. Telephone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Congress passed the Hawaiian Homes Commission Act (HHCA) in 1921, creating the Commission and designating approximately 200,000 acres available to rehabilitate the indigenous Hawaiian population by providing them with access to farm and homestead land. Under section 204(3) of the HHCA, ch. 42, 42 Stat. 110 (1921), all available lands were to become Hawaiian Home lands under control of the Commission, provided that “such lands should assume the status of the Hawaiian Home lands until the Commission, with the approval of the Secretary of the Interior, makes the selection and gives notice thereof to the Commissioner of Public Lands.” 42 Stat. 110 (1921).

Thirty-three years later, Congress passed the Act of June 18, 1954, ch. 319, 68 Stat. 262, which amended the HHCA, adding new subsection 204(4) “to permit the [Commission] to exchange available lands as designated by the Act, for public land of equal value.” H.R. Rep. No. 1517, 83d Cong., 2d Sess. (1954); S. Rep. No. 1486, 83d Cong., 2d Sess. 2 (1954). New section 204(4) provided that “the Commission may with the approval of the Governor (Governor approval no longer required) and the Secretary of the Interior, in purposes of this Act, exchange title to available lands for land publicly owned, of equal value.” 68 Stat. 262 (1954). Hence, it was clear Congress intended the Commission would not have the authority to consummate any land exchange without secretarial approval.

After Hawaii was admitted to the Union in 1959, the responsibility for the administration of the Hawaiian Home lands was transferred to the State of Hawaii. Section 4 of the Hawaiian Admission Act, Public Law 86-3, 73 Stat. 5 (1959), 48 U.S.C. nt. Prec. § 491 (1982) provides: “[A]s a compact with the United States relating to the management and disposition of the Hawaiian Home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of such State.” Thus, secretarial approval remained necessary before the Commission was empowered to conduct land exchanges.

In 1995, Congress again iterated its intent to have the Secretary provide oversight of land exchanges occurring under the auspices of the HHCA. The Hawaiian Home Lands Recovery Act of 1995 (HHLRA), Public Law 104-42, 109 Stat. 357, gave oversight responsibilities to the Secretary of the Department of Interior to ensure that real property under the HHCA is, among other things, administered in a manner which best serves the interests of the beneficiaries.

The words of section 204(3) of the HHCA make clear that a land exchange is not valid until it has been approved by the Secretary (or his designee), but does not suggest that the Secretary is required to approve every land exchange placed before him. Indeed, the Secretary must at a minimum, satisfy himself that either of the purposes set forth in section 204(3) is met (i.e., that the exchange would consolidate Homes Commission holdings, or that it would help to “better effectuate” the purposes of the Homes Commission Act), and that the lands proposed for exchange are “of an equal value”. Each of these elements requires the exercise of judgment, most particularly the element of equal value for land valuations can be highly subjective and land appraisals are understood to represent an art, not a science. Because the discharge of the responsibility placed on the Secretary is discretionary and not ministerial, approval of a land exchange is subject to NEPA. In general, section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C) provides that a “detailed statement” must be prepared whenever a major Federal action will have a significant impact on the quality of the human environment.

Compliance Statements:

1. Regulatory Planning and Review (E.O. 12866).

This document is not a significant policy change and the Office of Management and Budget (OMB) has not reviewed this DM change under E.O. 12866. We have made the assessments required by E.O. 12866 and have determined that this departmental policy:

(1) Will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) Will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) Does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) Does not raise novel legal or policy issues.

2. Regulatory Flexibility Act.

The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

3. Small Business Regulatory Enforcement Fairness Act (SBREFA).

This DM change is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The OMB made the determination that this DM change:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act.

This departmental manual change does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630).

Under the criteria in E.O. 12630, this departmental manual change does not have significant takings implications. A takings implication assessment is not required.

6. Federalism (E.O. 13132).

Under the criteria in E.O. 13132, this DM change does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.

7. Consultation With Indian tribes (E.O. 13175).

Under the criteria in E.O. 13175, we have evaluated this DM change and determined that it has no potential effects on federally recognized Indian tribes since Native Hawaiians are not a federally recognized Indian tribe.

8. National Environmental Policy Act.

The CEQ 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 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. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing agency NEPA procedures does not require NEPA analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd 230 F.3d 947. 954-55 (7th Cir. 2000).

9. Paperwork Reduction Act.

This rule does not contain information collection requirements, and a submission under the Paperwork Reduction Act is not required.

Willie R. Taylor,

Director, Office of Environmental Policy and Compliance.

For the reasons stated in the preamble, the Department proposes to amend its DM by adding a new chapter to provide supplementary requirements for implementing provisions of 516 DM 1 through 4 within the Department's Office of Hawaiian Relations (OHR), as set forth below:

PART 516: NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

CHAPTER 7: MANAGING THE NEPA PROCESS—OFFICE OF HAWAIIAN RELATIONS

7.1 Purpose. This Chapter provides supplementary requirements for implementing provisions of 516 DM 1 through 6 within the Department's Office of Hawaiian Relations.

7.2 NEPA Responsibility.

A. The Director of the Office of Hawaiian Relations is responsible for NEPA compliance for OHR activities.

B. The Director of the Office of Hawaiian Relations, in conjunction with the Office of Environmental Policy Compliance, provides direction and oversight for environmental activities, including the implementation of NEPA.

C. The OHR may request the Department of Hawaiian Home Lands (DHHL) to assist in preparing NEPA documentation for a proposed action submitted by the Secretary.

7.3 Guidance to DHHL.

A. Actions Proposed by the DHHL requiring OHR or other Federal approval.

(1) The OHR retains sole responsibility and discretion in all NEPA compliance matters related to the proposed action, although the Director of OHR may request the DHHL to assist in preparing all NEPA documentation.

B. Actions proposed by the DHHL not requiring Federal approval, funding, or official actions, are not subject to NEPA requirements.

7.4 Actions Normally Requiring an Environmental Assessment (EA) or Environmental Impact Statement (EIS) if these activities are connected to a land exchange requiring the Secretary's approval.

A. The following actions require preparation of an EA or EIS:

(1) Actions not categorically excluded; or

(2) Actions involving extraordinary circumstances as provided in 43 C.F.R. Part 46.215.

B. Actions not categorically excluded or involving extraordinary circumstances as provided in 43 C.F.R. Part 46.210, will require an EA when:

(1) An EA will be used in deciding whether a finding of no significant impact is appropriate, or whether an EIS is required prior to implementing any action.

(2) The action is not being addressed by an EIS.

C. If an EA is prepared, it will comply with the requirements of 43 CFR part 46 subpart D.

D. The following actions normally require the preparation of an EIS:

(1) Proposed water development projects which would inundate more than 1,000 acres of land, or store more than 30,000 acre-feet of water, or irrigate more than 5,000 acres of undeveloped land.

(2) Construction of a treatment, storage or disposal facility for hazardous waste or toxic substances.

(3) Construction of a solid waste facility.

E. If an EIS is prepared, it will comply with the requirements of 43 CFR part 46 subpart E

7.5 Categorical Exclusion. In addition to the actions listed in the Departmental categorical exclusions specified in section 43 C.F.R. 46.210, the following action is categorically excluded unless any of the extraordinary circumstances in section 43 C.F.R. 46.215 apply, thus requiring an EA or an EIS. This activity is a single, independent action not associated with larger, existing or proposed complexes or facilities.

A. Approval of conveyances, exchanges and other transfers of land or interests in land between DHHL, and an agency of the State of Hawaii, or a Federal agency, where no change in the land use is planned.