[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13403]


[[Page Unknown]]

[Federal Register: June 3, 1994]


                                                   VOL. 59, NO. 106

                                               Friday, June 3, 1994

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 372

[Docket No. 93-165-1]
RIN 0579-AA33

 

National Environmental Policy Act Implementing Procedures

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to establish procedures that set forth the 
principles and practices the Animal and Plant Health Inspection Service 
will follow to comply with the National Environmental Policy Act of 
1969, the Council on Environmental Quality regulations, and the U.S. 
Department of Agriculture regulations implementing the National 
Environmental Policy Act. These procedures would replace APHIS 
Guidelines Concerning Implementation of NEPA Procedures.

DATES: Consideration will be given only to comments received on or 
before July 18, 1994.

ADDRESSES: Please send an original and three copies of your comments to 
Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, room 804, 
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please 
state that your comments refer to Docket No. 93-165-1. Comments 
received may be inspected at USDA, room 1141, South Building, 14th 
Street and Independence Avenue, SW., Washington, DC, between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays. Persons wishing to 
inspect comments are encouraged to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT:
Mr. Robert E. Pizel, Branch Chief, Biotechnology, Biologics, and 
Environmental Protection, APHIS, USDA, room 827, Federal Building, 6505 
Belcrest Road, Hyattsville, MD 20782, (301) 436-8565.

SUPPLEMENTARY INFORMATION:

Background

    The regulations of the President's Council on Environmental Quality 
(CEQ) implementing section 102(2) of the National Environmental Policy 
Act (hereinafter referred to as NEPA or the Act) are applicable to and 
binding on all agencies of the Federal Government. Pursuant to the CEQ 
implementing regulations, the Animal and Plant Health Inspection 
Service (APHIS) is proposing to implement procedures to ensure that its 
planning and decisionmaking are in accordance with the policies and 
purposes of NEPA. The CEQ implementing regulations direct that agencies 
shall include, at a minimum, procedures required by 40 CFR 1501.2(d), 
1502.9(c)(3), 1505.1, 1506.6(e), 1507.3(b)(2), and 1508.4. APHIS' 
proposed procedures would supplant the APHIS Guidelines Concerning 
Implementation of NEPA Procedures originally published in the Federal 
Register on August 28, 1979 (44 FR 50381-50384) and corrections as 
published in the Federal Register on August 31, 1979 (44 FR 51272-
51274).

The Animal and Plant Health Inspection Service

    APHIS, established in 1972 (7 CFR 371.1(a)), is a regulatory and 
facilitative agency responsible for the protection of plant and animal 
health. Its mission is to protect American agriculture by providing 
leadership in ensuring the health, safety, and care of animals and 
plants, improving agricultural productivity and competitiveness, and 
contributing to the national economy and public health and safety. 
APHIS accomplishes this mission by:
    1. Excluding exotic plant and animal pests and diseases and noxious 
weeds.
    2. Detecting, monitoring, and managing plant and animal pests and 
diseases and noxious weeds.
    3. Facilitating agricultural imports and exports.
    4. Providing for pure, safe, and efficacious veterinary biologics.
    5. Protecting the welfare of certain animals.
    6. Controlling nuisance mammals and birds.
    7. Collecting, analyzing, and disseminating information.
    8. Providing scientific and technical services.
    APHIS' mission is carried out under five functional areas:
    Pest and disease exclusion. APHIS conducts inspection and 
quarantine activities at U.S. ports-of-entry to prevent the 
introduction of exotic animal and plant diseases and pests. APHIS also 
participates in inspection, survey, and control activities in foreign 
countries to reinforce its domestic activities.
    Animal and plant health monitoring. APHIS conducts programs to 
assess animal and plant health and to detect endemic and exotic 
diseases and pests.
    Pest and disease management programs. APHIS carries out or 
cooperates in programs to: Control and eradicate animal and plant pests 
and diseases; reduce losses caused by wildlife damage; provide 
technical assistance to State and local governments, farmer or rancher 
groups, foundations, and the public; and ensure compliance with 
interstate movement and other disease and pest control regulations 
within the jurisdiction of APHIS.
    Animal care. APHIS conducts regulatory activities that ensure the 
humane treatment and care of certain animals.
    Scientific and technical services. APHIS carries out other 
activities, including the licensing and testing of veterinary 
biologicals and the development of standards to ensure their safety and 
effectiveness, diagnostic activities for control and eradication 
programs, applied research for the development of methods and tools, 
regulatory oversight to prevent damage and reduce risk, and regulation 
of imports and exports of terrestrial plants under the Endangered 
Species Act.
    APHIS conducts cooperative programs with State and local agencies 
and organizations and foreign countries to eradicate, manage, or 
prevent the movement of plant and animal diseases and pests. More than 
2,500 exotic insects, plants and animal diseases, weeds, and vertebrate 
pests have been identified as posing a potentially serious threat to 
agriculture in the United States.
    APHIS' inspection and regulatory programs help prevent the 
introduction into the United States of animal and plant pests and 
diseases and noxious weeds of foreign origin and the spread of certain 
established animal and plant pests and diseases and noxious weeds 
within the country. Although limited inspection and testing activities 
take place in certain countries of origin, APHIS' port-of-entry 
inspection and quarantine are the primary line of defense against 
exotic pests and pathogens. However, notwithstanding these efforts, 
pests and pathogens occasionally are introduced into the United States.
    Therefore, in order to comply with NEPA, CEQ, and U.S. Department 
of Agriculture regulations, we are proposing to establish regulations 
in 7 CFR by adding a new part 372 (Secs. 372.1 through 372.10) as 
described below:

Section-by-Section Analysis

Purpose (Section 372.1)

    This section would set forth the purpose of the procedures, namely 
to implement section 102(2) of NEPA by assuring early and adequate 
consideration of environmental factors in APHIS planning and 
decisionmaking and by promoting the effective, efficient integration of 
all relevant environmental requirements under NEPA. This strategy of 
early and integrated consideration of environmental factors, diligently 
pursued, will facilitate achieving the requirements of sections 101 and 
102(1) as required by 40 CFR 1505.1(a).

Designation of Responsible APHIS Official (Section 372.2)

    This section would designate the Administrator of APHIS, or an 
agency official to whom the Administrator may formally delegate the 
task, as the individual responsible for overall review of APHIS' NEPA 
compliance.

Information and Assistance (Section 372.3)

    This section would provide that information, including the status 
of studies, and the availability of reference materials, as well as the 
informal interpretations of APHIS' NEPA procedures and other forms of 
assistance, will be made available upon request to: Environmental 
Analysis and Documentation, Biotechnology, Biologics, and Environmental 
Protection, APHIS, USDA, 6505 Belcrest Road, Hyattsville, Maryland 
20782, (301) 436-8565; FAX (301) 436-8669.

Definitions (Section 372.4)

    In addition to the definitions of terms contained in CEQ's 
implementing regulations, which are incorporated by reference herein, 
this section would define four terms which are unique to these proposed 
regulations. As used in these procedures, the term ``APHIS'' means the 
Animal and Plant Health Inspection Service; ``Decisionmaker'' means the 
agency official responsible for executing findings of no significant 
impact in the environmental assessment process and the record of 
decision in the environmental impact statement process; ``Department'' 
means the United States Department of Agriculture (USDA); and 
``environmental unit'' means Environmental Analysis and Documentation, 
which is an analytical unit in Biotechnology, Biologics, and 
Environmental Protection, charged with the responsibility of 
coordinating APHIS compliance with NEPA and other environmental laws 
and regulations.

Classification of Actions (Section 372.5)

    This proposed section, developed in four parts, complies with the 
directive in CEQ's implementing regulations that agencies classify 
actions for purposes of the NEPA process (40 CFR 1507.3(b)(2)). The CEQ 
regulation call for development of ``specific criteria for and 
identification of those typical classes of action'' that (1) normally 
require environmental impact statements, (2) normally require 
environmental assessments but not necessarily environmental impact 
statements, (3) normally require neither environmental impact 
statements nor environmental assessments and are therefore 
categorically excluded, and (4) normally are categorically excluded 
but, because of extraordinary circumstances, may have significant 
environmental effects and require preparation of environmental 
documentation.
1. Actions Normally Requiring Environmental Impact Statements
    An environmental impact statement (EIS) will normally be prepared 
for the following types of actions:
     Administrative procedures that seek to establish broad-
scale, significant, impact-generating strategies, methods, or 
techniques (e.g., treatment options of individual large-scale aerial 
application of chemicals) as the means of dealing with pervasive animal 
and plant health issues within the purview of APHIS.
    This category of action might include (1) contingency or 
``emergency'' response strategies (comprehensive in scope)--the design 
of which is intended to provide solutions, generally on very short 
notice (thereby severely limiting subsequent consideration of 
alternatives by planners and decisionmakers)--to widespread outbreaks 
of animal and plant diseases or similar exigencies; and (2) strategic 
or other long-range plans that purport to adopt for future application 
in the context of extensive APHIS programs a preferred course of action 
having the potential for significant environmental impact.
     General administrative (programmatic) examination of APHIS 
strategies and options for dealing with issues that have important 
implications for the maintenance and enhancement of environmental 
quality.
    Programmatic environmental impact statements are useful not only 
when dealing with exigencies of substantial proportion, but also for 
any substantive APHIS program as a means of effectively and efficiently 
integrating environmental considerations, process, and values into 
program planning and service delivery efforts. The type of action for 
which a programmatic EIS might be appropriate could include an 
administrative proceeding undertaken to rationalize, prioritize, and 
streamline--particularly from the standpoint of competing policies 
(e.g., environmental policies and economic development)--essential 
activities related to program mission and functions. Consider, for 
example, the scoping notice for the Veterinary Services programmatic 
document that was published by APHIS in the Federal Register on October 
9, 1992 (57 FR 46533-46534).
2. Actions Normally Requiring Environmental Assessments
    The preparation of program EIS's--whether or not exigent 
circumstances may be involved--does not relieve APHIS from taking a 
``hard look'' at refinements to, or site-specific implementation of, 
program alternatives that have not been ``categorically excluded.'' The 
following classes of action, which normally do not have the potential 
to affect significantly the quality of the human environment, will be 
evaluated for NEPA purposes in the context of environmental assessments 
(EA's), some of which may be tiered to broader programmatic EIS's:
     Policymaking and rulemaking proposals that involve program 
plans, techniques, methods, or other activities likely to have a 
consequential effect on the physical or natural environment or that may 
affect opportunities for the public, nongovernmental organizations, and 
others to influence environmental planning and decisionmaking.
     Development of program plans or similar nonexperimental 
approaches that seek to establish in more limited contexts impact-
generating strategies, methods, or techniques as the means of dealing 
with animal and plant health issues within the purview of APHIS.
    Included in this class would be ``action plans'' designed to 
address proposals to remedy specific problems, including plant pest 
infestations, animal diseases, depredating animals, and the like. Other 
planning activities for which EA's normally will be prepared include 
substantial APHIS involvement in the efforts of USDA's Forest Service, 
the Department of Interior's Bureau of Land Management, States, and 
Indian Tribes to eradicate or control plant pests, animal diseases, or 
depredating or nuisance species in various districts or regions.
     Site-specific implementation of action plans and 
approaches mentioned in the previous paragraph of this section, except 
where isolated activities, introductions, or applications, as developed 
more fully in the following subsection entitled ``Categorically 
Excluded Actions,'' are contemplated.
    There are some categories of APHIS action that, while susceptible 
to consideration in broad programmatic impact statements undertaken 
pursuant to NEPA, are usually identified with more resource-specific 
environmental mandates and may be the subject of periodic planning and 
review requirements. In the process of satisfying those requirements, 
all operational aspects of APHIS facilities, including storage and 
disposal of pesticides, chemicals, and laboratory wastes, will normally 
be thoroughly examined. But compliance with such planning and review 
requirements does not satisfy NEPA, which is applicable to ``adoption 
of formal plans * * *'' (40 CFR 1508.18(b)(2)).
    The following classes of action may be examined in the context of 
specific environmental mandates other than NEPA, but will nevertheless 
be analyzed within an EA in order to facilitate the NEPA decision:
     Planning, design, and construction or acquisition of major 
new facilities or proposals to modify substantially existing 
facilities.
     Disposition of laboratory waste and other hazardous or 
toxic materials, except as provided under subsection 3 of this section.
    Biotechnology and biological control activities within APHIS' 
oversight authority are conducted pursuant to permits or other 
authorizations that may include conditions to protect the environment, 
the granting of exemption from regulation, or a notification procedure. 
These activities normally will be examined in the context of EA's 
crafted to the permitting processes:
     Approval and issuance of permits for the release into the 
environment of genetically engineered organisms and products, and the 
release into the environment of exotic organisms.
    There is one final category of action that fits within the 
classification of normally requiring an EA-research and testing. Not 
all research and testing, however, need be subjected to the EA process. 
Only where research or testing either creates a likelihood of harm to 
the quality of the human environment or represents an irretrievable 
commitment to the resulting technology will EA's normally be required:
     Research or testing that will be conducted outside of a 
laboratory or other containment area--field trials, for example--or 
that reaches a stage of development (e.g., formulation of pre-marketing 
strategies) that forecasts an irretrievable commitment to new products 
or technology.
3. Categorically Excluded Actions
    The CEQ implementing regulations define the term ``categorical 
exclusion'' as ``a category of actions which do not individually or 
cumulatively have a significant effect on the human environment and 
which have been found to have no such effect in procedures adopted by a 
Federal agency in implementation of these regulations * * *.'' (40 CFR 
1508.4). Environmental documents are not prepared for categorically 
excluded actions unless exceptional circumstances, as provided in 
subsection 4 below, are present. Indeed, CEQ ``strongly discourages 
procedures that would require the preparation of additional paperwork 
to document that an activity has been categorically excluded'' (CEQ 
Guidance Regarding NEPA Regulations, 48 FR 34265, July 28, 1983).
    The Department has promulgated categorical exclusions of actions 
that are applicable to all departmental agencies whose procedures do 
not provide otherwise. Those categorical exclusions, codified at 7 CFR 
1b.3a), are appropriate for APHIS. Other APHIS actions that qualify for 
categorical exclusion from the NEPA process are identified herein. 
Consistent with CEQ's directive, ``broadly defined criteria'' have been 
employed to ``characterize types of actions that, based on APHIS' 
experience, do not cause significant environmental effects'' (49 FR 
34265, July 28, 1983).
    Insofar as safeguarding environmental quality is concerned, the 
proper use of chemicals, pesticides, and other potentially hazardous or 
harmful substances, materials, and devices in the development and 
delivery of program goods and services is of the utmost concern to 
APHIS. But not every proposed use of potentially hazardous or harmful 
substances, materials, or devices will require application of the NEPA 
process. Experience suggests that the following category of actions, 
individually or cumulatively, will not have a significant effect on the 
human environment:
     Routine measures employed by the agency to pursue its 
mission and functions, such as identifications, inspections, surveys, 
sampling, testing, seizures, quarantines, removals, sanitizing, 
inoculations, and monitoring, including the use--according to any label 
instructions or other lawful requirements and consistent with standard, 
published program practices and precautions--of chemicals, pesticides, 
or other potentially hazardous or harmful substances, materials, and 
target-specific devices or remedies, provided that such use (1) is 
localized in nonurban areas to individual parcels such as farms, 
ranches, or nurseries, or contained (and not aerially applied or 
administered) in urbanized areas to discrete sites that do not cater to 
the general public, and is limited in terms of quantity, i.e., low- or 
ultra-low volume or individualized dosages and remedies; (2) will not 
cause contaminants to enter water bodies, including wetlands; (3) does 
not adversely affect any federally protected species or critical 
habitat; and (4) is not persistent in the environment and does not 
cause bioaccumulation. All circumstances delineated above (insofar as 
they may pertain to a particular action) must be present for any such 
use to be categorically excluded from the NEPA process.
    Examples of actions covered by this categorical exclusion include 
inoculation of discrete herds of livestock, or wildlife treatment 
strategies undertaken in contained areas (such as a zoo, an exhibition, 
or an aviary); pesticide treatments applied to infested plants on a 
homesite; and isolated (for example, along a highway) weed control 
efforts.
    Research and small-scale testing activities represent another 
category of actions that will require application of the NEPA process 
only in very limited contexts--essentially those described in ``Actions 
normally requiring EA's, Research and Testing.'' Other statutory 
requirements (those contained in the Federal Insecticide, Fungicide, 
and Rodenticide Act, for example) may be applicable to some research 
and testing activities regardless of how they may be classified for 
NEPA purposes in these procedures. Nevertheless, categorical exclusion 
from the NEPA process is appropriate for the following described 
actions:
     Activities that are carried out in laboratories, 
facilities, or other areas designed to eliminate the potential for 
harmful environmental effects (internal or external) and to provide for 
lawful waste disposal.
    Examples of actions covered by this categorical exclusion include: 
The development and/or production (including formulation, repackaging, 
movement, and distribution) of approved and/or licensed program 
material, devices, reagents, and biologics; research, testing, and 
development of animal repellents; and development and production of 
sterile insects.
    The following additional categories of actions also qualify for 
categorical exclusion from the NEPA process:
     Routine precautionary measures, including identifications, 
inspections, surveys, testing, inoculating, and monitoring, of a 
limited scope and intensity that are designed to assure the proper 
care, protection, and treatment of animals.
     Rehabilitation of existing laboratories and other APHIS 
facilities, functional replacement of parts and equipment, and minor 
additions to such existing APHIS facilities.
     Agency actions including the issuance of permits, 
authorization to ship, or licensing involving a category of veterinary 
biological product which has been previously licensed, unless the 
product has been subsequently shown to be unsafe, or will be used at 
substantially higher dosage levels or for substantially different 
applications or circumstances than in the use for which the product was 
previously approved. Also, the issuance of a license, permit, or 
authorization to ship for field testing products that had not been 
previously licensed that do not contain live microorganisms or that are 
used only for in vitro diagnostic testing.
4. Exceptions for Categorically Excluded Actions
    Whenever the decisionmaker determines that an action listed in 
``Categorically Excluded Actions'' may have the potential to affect 
``significantly'' the quality of the ``human environment,'' as those 
terms are defined at 40 CFR 1508.27 and 1508.14, respectively, an 
environmental impact statement or an EA will be prepared.

Early Planning for Applicants and Non-APHIS Entities (Section 372.6)

    This section is designed to satisfy the directive in the CEQ 
implementing regulations that agencies make provision ``for cases where 
actions are planned by private applicants or other *** entities before 
Federal involvement ***.'' (40 CFR 1501.2(d)). Written instructions or 
guidelines outlining what is needed to comply with environmental 
planning and documentation requirements for all prospective applicants 
cannot be included in these procedures. It is the intention of APHIS 
ultimately to identify environmental data needs for each major APHIS 
program that requires analysis under these procedures and to provide 
for those needs as an integral part of program standards and practices. 
Until that goal can be attained, however, each prospective applicant 
needing approval for proposed activities normally requiring 
environmental documentation is encouraged to contact, at the earliest 
opportunity, APHIS' program staff, which will then coordinate with the 
environmental unit to design an appropriate compliance procedure 
tailored to the needs of the particular proposal.

Consultation (Section 372.7)

    This section encourages prospective applicants and others to 
contact APHIS program officials to determine what types of 
environmental analyses or documentation, if any, need to be prepared. 
Early consultation is not intended to satisfy the requirements of NEPA 
alone. NEPA documents should incorporate, to the fullest extent 
possible, surveys and studies required by other environmental statutes. 
Implementing regulations of other primary environmental statutes, such 
as the Endangered Species Act, also make provision for early 
consultation and resolution of major issues by prospective applicants. 
Only by taking full advantage of opportunities for early environmental 
planning can APHIS, entities it regulates, the public, and others, 
avoid excessive costs and undue administrative delays often associated 
with a poorly timed environmental analysis process.
    Questions regarding these procedures and their applicability to 
particular planning and decisionmaking situations are inevitable. No 
procedure, regardless of how meticulously it may have been fashioned, 
can anticipate every contingency. For this reason, prospective 
applicants, and others who may have questions concerning these 
procedures, their applicability, meaning, or any other problem, should 
not hesitate to contact program officials and consult with the 
environmental unit at the earliest opportunity. Responses to all such 
questions will be provided as quickly as possible, in most cases within 
a single work day of securing any necessary factual information.

Major Planning and Decision Points and Public Involvement (Section 
372.8)

    This section is designed to satisfy the directives in the CEQ 
implementing regulations that agencies (1) designate ``the major 
decision points for APHIS' principal programs likely to have a 
significant effect on the human environment and (assure) that the NEPA 
process corresponds with them'' (40 CFR 1505.1(b) (1992)); and (2) 
``make diligent efforts to involve the public'' in NEPA-related 
activities (40 CFR 1506.6).
    Proposed Sec. 372.5(a) of these procedures describes actions that 
normally require preparation of an EIS. The narrative explanation for 
that section emphasizes the desirability of adopting a broad 
programmatic approach to NEPA compliance that corresponds with APHIS' 
planning and service delivery efforts. Furthermore, it is in the 
planning stages of policy, program, or project development where the 
NEPA process can most effectively and efficiently be employed in the 
furtherance of the Act's ``pollution prevention'' purpose.
    Like many agencies, APHIS makes ample use of long-range planning 
for policy development and formulation of program strategies. Most 
major policies and programs are already in place. Still, NEPA is 
applicable to ongoing activities, including policies, programs, and 
projects, no less than it is to new ones (40 CFR 1508.18). Thus, for 
purposes of rationalizing and better coordinating existing policies and 
program strategies consistent with NEPA, a broad programmatic approach 
to environmental planning is logical.
    Planning is often ad hoc in nature and specific points (especially 
the beginning point) can seldom be anticipated, at least with respect 
to particular events, times, or individuals. It may also be difficult 
to judge at what point in the planning process a ``proposal'' exists 
for NEPA purposes.\1\ The NEPA process will be fully coordinated with 
APHIS planning. Specific decision points will be identified and 
communicated to the public in a notice of intent and in the context of 
the public scoping process.
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    \1\``Proposal'' exists at that stage in the development of an 
action when an agency subject to the Act has a goal and is actively 
preparing to make a decision on one or more alternative means of 
accomplishing that goal, and the effects can be meaningfully 
evaluated. Preparation of an environmental impact statement on a 
proposal should be timed (Sec. 1502.5) so that the final statement 
may be completed in time for inclusion in any recommendation or 
report on the proposal. A proposal may exist in fact as well as by 
agency declaration that one exists (40 CFR 1508.23). But see, 
Executive Office of the President, Council on Environmental Quality, 
Environmental Quality 1989 21 (20th Annual Report, 1990) (``The 
impact statement was required to force the agencies to take the 
substantive provisions of the Act seriously and to consider the 
environmental policy directives of the Congress in the formulation 
of agency plans and procedures'') (emphasis supplied).
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    A principal purpose of NEPA is to restore public confidence in the 
Federal Government's capacity to achieve important public purposes and 
objectives while at the same time maintaining and enhancing the quality 
of the environment. In furtherance of that purpose, both the Act and 
the CEQ implementing regulations require extensive public involvement 
in the preparation of necessary environmental documentation. APHIS is 
committed to an open and accessible NEPA process. There will be an 
early and open process for determining the scope of issues to be 
addressed in the EIS process.
    A notice of intent to prepare an EIS will be published in the 
Federal Register as soon as it is determined that a proposed major 
Federal action has the potential to affect significantly the quality of 
the human environment. The notice may include a preliminary scope of 
environmental study. All public and other involvement in APHIS' EIS 
process, including the scoping process, commenting on draft documents, 
and participation in the preparation of any supplemental documents, 
will be pursuant to the CEQ implementing regulations.
    Early public and other agency involvement is especially useful in 
the EA process where exigent circumstances (animal disease or plant 
pest outbreaks, for example) require rapid APHIS response. In such an 
event, any EA comment period would, of necessity, be extremely 
abbreviated. Opportunities for early public involvement in the EA 
process will be announced in the same fashion as the availability of 
EA's and findings of no significant impact, as specified in 
Sec. 372.8(b)(3).
    Section 1506.6 of the CEQ regulations requires agencies to involve 
the public and others in implementing their NEPA procedures which, 
according to CEQ, ``includes public involvement in the preparation of 
EA's and findings of no significant impact. These are public 
``environmental documents'' under Sec. 1506.6(b), and, therefore, 
agencies must give public notice of their availability'' (CEQ, Forty 
Most Asked Questions Concerning CEQ's National Environmental Policy Act 
Regulations, 46 FR 18037, March 23, 1981). Notification of the 
availability of EA's and findings of no significant impact for proposed 
activities will be published in the Federal Register, unless it is 
determined that the effects of the action are primarily of local 
concern. Where the effects of the action are primarily of local 
concern, notice will normally be provided through publication of notice 
in a local or area newspaper of general circulation, or through the 
provisions of Executive Order 12372, Intergovernmental Review of 
Federal Programs. Under this order, the State would act as a 
clearinghouse for review and public notice of the EA. See, the 
regulations implementing Executive Order 12372--Intergovernmental 
Review of Department of Agriculture Programs and Activities, 7 CFR part 
3015, subpart V.
    All environmental documents, comments received, and any underlying 
documents, including interagency correspondence where such 
correspondence transmits comments of Federal agencies on the 
environmental impact of proposals for which documents were prepared, 
will be made available to the public upon request. Materials to be made 
available will be provided without charge, to the extent practicable, 
or at a fee which is not more than the actual cost of reproducing 
copies required to be sent to other Federal agencies, including CEQ.

Processing and Use of Environmental Documents (Section 372.9)

    This section would satisfy provisions of the CEQ regulations 
designed ``to ensure that decisions are made in accordance with the 
policies and purposes of the Act'' (40 CFR 1505.1).
    EA's will be forwarded immediately upon completion to the 
decisionmaker for a determination of whether the proposed action may 
have significant effects on the human environment, and for the 
execution, as appropriate, of a finding of no significant impact or a 
notice of intent to prepare an EIS. At this time, the EA's will be made 
available consistent with the notification provisions of Sec. 372.8 of 
these procedures.
    Comments, if any, will be transmitted, together with any analyses 
and recommendations, to the APHIS decisionmaker who may then take 
appropriate action.
    Changes to environmental assessments and findings of no significant 
impact which are prompted by comments, new information, or any other 
source, will normally be announced in the same manner as the notice of 
availability (except that all commenters will be mailed copies of 
changes directly) prior to implementing the proposed action or any 
alternative.
    EIS's will be processed according to the CEQ regulations from 
inception (publication in the Federal Register of the notice of intent) 
to completion (publication of a final environmental impact statement or 
a supplement).
    For rulemaking or adjudicatory proceedings, relevant environmental 
documents, comments, and responses will be part of the administrative 
record.
    For all APHIS activity that is subject to the NEPA process, the 
environmental record, including comments and responses, will accompany 
proposals through the existing review process. The APHIS decisionmaking 
for each NEPA document will consider the range of alternatives 
discussed in environmental documents in reaching their determinations 
on the merits of proposed actions.

Supplementing Environmental Impact Statements (Section 372.10)

    This section describes how supplemental EIS's are introduced into 
the administrative record.
    The decision to prepare a supplemental EIS is similar to the 
decision to prepare an EIS in the first instance. As such, that 
decision turns on a myriad of factors. But once a decision to 
supplement an EIS is made, a notice of intent will be published in the 
Federal Register, which in effect serves to reopen the administrative 
record. The supplemental document will then be processed in the same 
fashion (exclusive of scoping) as a draft and a final statement, unless 
alternative procedures are approved by CEQ.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for purposes of 
Executive Order 12866, and, therefore, has not been reviewed by the 
Office of Management and Budget.
    These proposed procedures satisfy the requirement to implement 
CEQ's NEPA regulations and have been designed to reduce to a minimum 
the regulatory burden on small entities and all other individuals and 
organizations, public and private.
    Under these circumstances, the Administrator of APHIS has 
determined that these procedures would not have a significant economic 
impact on a substantial number of small entities.

Executive Order 12372

    This program/activity is listed in the catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V).

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If these proposed procedures are adopted: (1) All 
State and local laws and regulations that are in conflict with these 
procedures will be preempted; (2) no retroactive effect will be given 
to this rule; and (3) administrative proceedings will not be required 
before parties may file suit in court challenging this rule.

The National Environmental Policy Act

    Section 372.5(b)(1) of these proposed procedures provides, in part, 
that an EA will normally be prepared for ``rulemaking proposals that * 
* * may affect opportunities for the public, nongovernmental 
organizations, and others to influence environmental planning and 
decisionmaking.'' See, Illinois Commerce Comm'n v. ICC, 848 F.2d 1246, 
1256 (D.C. Cir. 1988) (``it is not at all apparent that a change in 
procedure alone will not affect the environment--the new procedure may, 
for example, lessen the opportunity for environmental groups to 
influence the agency's final decision''). An environmental assessment, 
which examines opportunities for public involvement in APHIS' 
environmental process, has been prepared. The environmental assessment 
concludes essentially that public involvement in APHIS' environmental 
planning and decisionmaking is consistent with NEPA requirements. In 
the circumstances, a finding of no significant impact is appropriate.
    Copies of the environmental assessment may be obtained by writing 
the contact for this rulemaking provided under the section heading For 
Further Information Contact. Comments are invited and should be 
submitted to this same contact on or before the comment due date for 
this proposed rulemaking.

Paperwork Reduction Act

    These proposed procedures contain no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1980 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 372

    Administrative practice and procedure, Environmental assessment, 
Environmental impact statement, National Environmental Policy Act.

    Accordingly, title 7, chapter III, of the Code of Federal 
Regulations is proposed to be amended by adding a new part 372, to read 
as follows:

PART 372--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES

Sec.
372.1  Purpose.
372.2  Designation of responsible APHIS official.
372.3  Information and assistance.
372.4  Definitions.
372.5  Classification of actions.
372.6  Early planning for applicants and non-APHIS entities.
372.7  Consultation.
372.8  Major planning and decision points and public involvement.
372.9  Processing and use of environmental documents.
372.10  Supplementing environmental impact statements.

    Authority: 42 U.S.C. 4321 et seq.; 40 CFR parts 1500-1508; 7 CFR 
parts 1b, 2.17, 2.51, 371.2, 371.2(m), 371.13(d), and 371.14(b).


Sec. 372.1  Purpose.

    These procedures implement section 102(2) of the National 
Environmental Policy Act by assuring early and adequate consideration 
of environmental factors in Animal and Plant Health Inspection Service 
planning and decisionmaking and by promoting the effective, efficient 
integration of all relevant environmental requirements under the 
National Environmental Policy Act.


Sec. 372.2  Designation of responsible APHIS official.

    The Administrator of APHIS, or an agency official to whom the 
Administrator may formally delegate the task, is responsible for 
overall review of APHIS' NEPA compliance.


Sec. 372.3  Information and assistance.

    Information, including the status of studies, and the availability 
of reference materials, as well as the informal interpretations of 
APHIS' NEPA procedures and other forms of assistance, will be made 
available upon request to Environmental Analysis and Documentation, 
Biotechnology, Biologics, and Environmental Protection, APHIS, USDA, 
6505 Belcrest Road, Hyattsville, Maryland 20782, (301) 436-8565; FAX 
(301) 436-8669.


Sec. 372.4  Definitions.

    The terminology set forth in the Council on Environmental Quality's 
(CEQ) implementing regulations at 40 CFR part 1508 is incorporated 
herein. In addition, the following terms as used in these procedures 
are defined as follows:
    APHIS. The Animal and Plant Health Inspection Service (APHIS).
    Decisionmaker. The agency official responsible for executing 
findings of no significant impact in the environmental assessment 
process and the record of decision in the environmental impact 
statement process.
    Department. The United States Department of Agriculture (USDA).
    Environmental unit. Environmental Analysis and Documentation, the 
analytical unit in the Biotechnology, Biologics, and Environmental 
Protection responsible for coordinating APHIS' compliance with the 
National Environmental Policy Act and other environmental laws and 
regulations.


Sec. 372.5  Classification of actions.

    (a) Actions normally requiring environmental impact statements. An 
environmental impact statement will normally be prepared for the 
following types of actions:
    (1) Administrative procedures that seek to establish broad-scale, 
significant, impact-generating strategies, methods, or techniques 
(e.g., treatment options of individual large-scale aerial application 
of chemicals) as the means of dealing with pervasive animal and plant 
health issues within the purview of APHIS. Examples of this category of 
actions include:
    (i) Contingency or ``emergency'' response strategies (comprehensive 
in scope)--the design of which is intended to provide solutions, 
generally on very short notice, thereby severely limiting subsequent 
consideration of alternatives by planners and decisionmakers--to 
widespread outbreaks of animal and plant diseases or similar 
exigencies, and
    (ii) Strategic or other long-range plans that purport to adopt for 
future application, in the context of extensive APHIS programs, a 
preferred course of action having the potential for significant 
environmental impact.
    (2) General administrative (programmatic) examination of APHIS 
strategies and options for dealing with issues that have important 
implications for the maintenance and enhancement of environmental 
quality. An example of this category of actions is:
    (1) An administrative proceeding undertaken to rationalize, 
prioritize, and streamline--particularly from the standpoint of 
competing policies (e.g., environmental policies and economic 
development)--essential activities related to program mission and 
functions.
    (b) Actions normally requiring environmental assessments. Classes 
of actions identified below, which normally do not have the potential 
to affect significantly the quality of the human environment, will, for 
NEPA purposes, be evaluated in the context of environmental 
assessments.
    (1) Policymaking and rulemaking proposals that involve program 
plans, techniques, methods, or other activities likely to have a 
consequential effect on the physical or natural environment or that may 
affect opportunities for the public, nongovernmental organizations, and 
others to influence environmental planning and decisionmaking.
    (2) Development of program plans or similar nonexperimental 
approaches that seek to establish in more limited contexts impact-
generating strategies, methods, or techniques as the means of dealing 
with animal and plant health issues within the purview of APHIS. 
Examples of this category of actions include:
    (i) Proposals to remedy specific problems, including plant pest 
infestations, animal diseases, and depredating animals; and
    (ii) Substantial APHIS involvement in the planning efforts of the 
USDA's Forest Service, the Department of the Interior's Bureau of Land 
Management, States, and Indian Tribes to eradicate or control plant 
pests, animal disease, or depredating animals.
    (3) Site-specific implementation of action plans and approaches 
mentioned in paragraph (b)(2) of this section, except where isolated 
activities, introductions, or applications, as developed more fully in 
the following subsection entitled ``Categorically Excluded Actions,'' 
are contemplated.
    (4) Planning, design, and construction or acquisition of major new 
facilities, or proposals for substantial modifications to existing 
facilities.
    (5) Disposition of laboratory waste and other hazardous or toxic 
materials, except as provided under paragraph (c) of this section.
    (6) Approval and issuance of permits for:
    (i) The release into the environment of genetically engineered 
organisms and products; and
    (ii) The release into the environment of exotic organisms.
    (7) Research or testing that:
    (i) Will be conducted outside of a laboratory or other containment 
area (field trials, for example); or
    (ii) Reaches a stage of development (e.g., formulation of pre-
marketing strategies) that forecasts an irretrievable commitment to the 
resulting products or technology.
    (c) Categorically excluded actions. The Department has promulgated 
categorical exclusions of actions that are applicable to all agencies 
whose procedures do no provide otherwise. Those categorical exclusions, 
codified at 7 CFR 1b.3(a), are adopted as entirely appropriate for 
APHIS. Other categories of APHIS actions which do not individually or 
cumulatively have a significant effect on the human environment and for 
which neither environmental assessment nor environmental impact 
statements will be prepared include:
    (1)(i) Routine measures employed by the agency to pursue its 
mission and functions, such as identifications, inspections, surveys, 
sampling, testing, seizures, quarantines, removals, sanitizing, 
inoculations, and monitoring, including the use--according to any label 
instructions or other lawful requirements and consistent with standard, 
published program practices and precautions--of chemicals, pesticides, 
or other potentially hazardous or harmful substances, materials, and 
target-specific devices or remedies, provided that such use:
    (A) Is localized in nonurban areas to individual parcels such as 
farms, ranches, or nurseries, or contained (and not aerially applied or 
administered) in urbanized areas to discrete sites that do not cater to 
the general public, and is limited in terms of quantity, i.e., low- or 
ultra-low volume or individualized dosages and remedies;
    (B) Will not cause contaminants to enter water bodies, including 
wetlands;
    (C) Does not adversely affect any federally protected species or 
critical habitat; and
    (D) Is not persistent in the environment and does not cause 
bioaccumulation.
    (ii) All circumstances delineated in paragraph (c)(i) (A) through 
(D) of this section (insofar as they may pertain to a particular 
action) must be affirmed for any such use to be categorically excluded 
from the NEPA process. Examples of this category of actions include:
    (A) Inoculation of discrete herds of livestock, or wildlife 
treatment strategies undertaken in contained areas (such as a zoo, an 
exhibition, or an aviary);
    (B) Pesticide treatments applied to infested plants on a homesite 
without contamination of water; and
    (C) Isolated (for example, along a highway) weed control efforts.
    (2) Activities that are carried out in laboratories, facilities, or 
other areas designed to eliminate the potential for harmful 
environmental effects--internal or external--and to provide lawful 
waste disposal. Examples of this category of actions include:
    (i) The development and/or production (including formulation, 
repackaging, movement, and distribution) of approved and/or licensed 
program material, devices, reagents, and biologics;
    (ii) Research, testing, and development of animal repellents; and
    (iii) Development and production of sterile insects.
    (3) Routine precautionary measures, including identifications, 
inspections, surveys, testing, inoculating, and monitoring of a limited 
scope and intensity, designed to assure the proper care, protection, 
and treatment of animals.
    (4) Rehabilitation of existing laboratories and other APHIS 
facilities, functional replacement of parts and equipment, and minor 
additions to such existing APHIS facilities.
    (5) Agency actions, including the issuance of permits, 
authorization to ship, or licensing involving a category of veterinary 
biological product which has been previously licensed, unless the 
product has been subsequently shown to be unsafe, or will be used at 
substantially higher dosage levels or for substantially different 
applications or circumstances than in the use for which the product was 
previously approved. Also, the issuance of a license, permit, or 
authorization to ship for field testing products that had not been 
previously licensed that do not contain live microorganisms or that are 
used only for in vitro diagnostic testing.
    (d) Exceptions for categorically excluded actions. Whenever the 
decisionmaker determines that an action listed in paragraph (c) of this 
section may have the potential to affect ``significantly'' the quality 
of the ``human environment,'' as those terms are defined at 40 CFR 
1508.27 and 1508.14, respectively, an environmental impact statement or 
an environmental assessment will be prepared.


Sec. 372.6  Early planning for applicants and non-APHIS entities.

    Each prospective applicant who anticipates the need for approval of 
proposed activities classified as normally requiring environmental 
documentation is encouraged to contact, at the earliest opportunity, 
APHIS' program staff, which will then coordinate with the environmental 
unit to design a streamlined compliance course tailored to the needs of 
the particular proposal.


Sec. 372.7  Consultation.

    Prospective applicants are encouraged to contact APHIS program 
officials to determine what types of environmental analyses or 
documentation, if any, need to be prepared. Early consultation is not 
intended to satisfy the requirements of NEPA alone. NEPA documents will 
incorporate, to the fullest extent possible, surveys and studies 
required by other environmental statutes, such as the Endangered 
Species Act.


Sec. 372.8  Major planning and decision points and public involvement.

    (a) Major planning and decision points. The NEPA process will be 
fully coordinated with APHIS planning by APHIS' environmental unit in 
cooperation with program personnel. Specific decision points or 
milestones will be identified and communicated to the public and others 
in a notice of intent and in the context of the public scoping process.
    (b) Public involvement. There will be an early and open process for 
determining the scope of issues to be addressed during environmental 
analysis.
    (1) A notice of intent to prepare an environmental impact statement 
will be published in the Federal Register as soon as it is determined 
that a proposed major Federal action has the potential to affect 
significantly the quality of the human environment. The notice may 
include a preliminary scope of environmental study. All public and 
other involvement in APHIS' environmental impact statement process, 
including the scoping process, commenting on draft documents, and 
participation in the preparation of any supplemental documents, will be 
pursuant to CEQ's implementing regulations.
    (2) Early public and other agency involvement in the environmental 
assessment process will be invited through announcements made available 
in the same fashion as the environmental assessments and findings of no 
significant impact.
    (3) Notification of the availability of environmental assessments 
and findings of no significant impact for proposed activities will be 
published in the Federal Register, unless it is determined that the 
effects of the action are primarily of local concern. Where the effects 
of the action are primarily of local concern, notice will normally be 
provided through publication in a local or area newspaper of general 
circulation and/or the procedures implementing Executive Order 12372, 
``Intergovernmental Review of Federal Programs.''
    (4) All environmental documents, comments received, and any 
underlying documents, including interagency correspondence where such 
correspondence transmits comments of Federal agencies on the 
environmental impact of proposals for which documents were prepared, 
will be made available to the public upon request. Materials to be made 
available will be provided without charge, to the extent practicable, 
or at a fee which is not more than the actual cost of reproducing 
copies required to be sent to other Federal agencies, including CEQ.


Sec. 372.9  Processing and use of environmental documents.

    (a) Environmental assessments will be forwarded immediately upon 
completion to the decisionmaker for a determination of whether the 
proposed action may have significant effects on the quality of the 
human environment, and for the execution, as appropriate, of a finding 
of no significant impact or a notice of intent to prepare an 
environmental impact statement. Simultaneously, the availability of 
environmental assessments will be announced by publishing a notice 
consistent with the notification provisions of Sec. 372.8.
    (b) Comments, if any, will be transmitted, together with any 
analyses and recommendations, to the APHIS decisionmaker who may then 
take appropriate action.
    (c) Changes to environmental assessments and findings of no 
significant impact which are prompted by comments, new information, or 
any other source, will normally be announced in the same manner as the 
notice of availability (except that all commenters will be mailed 
copies of changes directly) prior to implementing the proposed action 
or any alternative.
    (d) Environmental impact statements will be processed from 
inception (publication of the notice of intent) to completion 
(publication of a final environmental impact statement or a supplement) 
according to the Council on Environmental Quality implementing 
regulations.
    (e) For rulemaking or adjudicatory proceedings, relevant 
environmental documents, comments, and responses will be a part of the 
administrative record.
    (f) For all APHIS activity that is subject to the NEPA process, 
relevant environmental documents, comments, and responses will 
accompany proposals through the review process.
    (g) The APHIS decisionmaker for each NEPA document will consider 
the range of alternatives discussed in environmental documents in 
reaching their determinations on the merits of proposed actions.


Sec. 372.10  Supplementing environmental impact statements.

    Once a decision to supplement an environmental impact statement is 
made, a notice of intent will be published. The administrative record 
will thereafter be open. The supplemental document will then be 
processed in the same fashion (exclusive of scoping) as a draft and a 
final statement, unless alternative procedures are approved by CEQ, and 
will become part of the administrative record.

    Done in Washington, DC, this 26th day of May 1994.
Lonnie J. King,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-13403 Filed 6-2-94; 8:45 am]
BILLING CODE 3410-34-M