[Federal Register Volume 79, Number 170 (Wednesday, September 3, 2014)]
[Proposed Rules]
[Pages 52239-52259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20836]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 79, No. 170 / Wednesday, September 3, 2014 /
Proposed Rules
[[Page 52239]]
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Parts 761, 762, 763, 764, 765, 766, 767, 770, 772, 773, 774,
and 799
Commodity Credit Corporation
7 CFR Part 1436
Rural Housing Service, Rural Business-Cooperative Service, Rural
Utilities Service, and Farm Service Agency
7 CFR Part 1940
RIN 0560-AH02
Environmental Policies and Procedures; Compliance with the
National Environmental Policy Act and Related Authorities
AGENCY: Farm Service Agency, Rural Housing Service, Rural Business-
Cooperative Service, Rural Utilities Service, and Commodity Credit
Corporation, USDA.
ACTION: Proposed rule.
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SUMMARY: The Farm Service Agency (FSA) proposes to consolidate, update,
and amend its regulations implementing the National Environmental
Policy Act of 1969, as amended (NEPA). FSA's NEPA regulations have been
in place since 1980. Significant changes to the structure of FSA and
the scope of FSA's programs require changes in FSA's NEPA regulations.
The proposed changes would also better align FSA's NEPA regulations
with the President's Council on Environmental Quality (CEQ) NEPA
regulations and guidance and meet the FSA responsibilities for periodic
review of their categorical exclusions. One component of the changes
proposed to improve the clarity and consistency of the regulations, is
the proposed additions to the existing list of categorical exclusions
(CatExs). CatExs involve actions that typically do not result in
individual or cumulative significant environmental effects or impacts
and therefore do not merit further environmental review in an
Environmental Assessment (EA) or Environmental Impact Statement (EIS).
This proposed rule would also propose to expand and clarify the list of
actions that require an EA. In addition, this rule proposes conforming
changes to existing references to FSA NEPA regulations in other current
USDA regulations. The revisions to the FSA NEPA implementing
regulations are intended to improve transparency and clarity of the FSA
NEPA process for FSA program participants and to provide for a more
efficient environmental review that will lead to better decisions and
outcomes for stakeholders and the environment.
DATES: We will consider comments that we receive by December 2, 2014.
ADDRESSES: We invite you to submit comments on this proposed rule and
the information collection. In your comment, specify RIN 0560-AH02 and
the volume, date, and page number of this issue of the Federal
Register. You may submit comments by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail, Hand Delivery, or Courier: Nell Fuller, Conservation
and Environmental Program Division, FSA, USDA, Mail Stop 0513, 1400
Independence Avenue SW., Washington, DC 20250-0513.
FSA will post all comments received without change, including any
personal information that is included with the comments, on http://www.regulations.gov. Comments will be available for inspection online
at http://www.regulations.gov and at the address listed above between
8:00 a.m. and 4:30 p.m., Monday through Friday, except holidays. A copy
of this proposed rule is also available through the FSA homepage at
http://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT: Nell Fuller; telephone (202) 720-6303.
Persons with disabilities or who require alternative means for
communication should contact the USDA Target Center at (202) 720-2600.
SUPPLEMENTARY INFORMATION:
Background--NEPA
NEPA (Pub. L. 91-190, 42 U.S.C. 4321-4370) establishes a national
environmental policy, sets goals for the protection, maintenance, and
enhancement of the environment and provides a process for carrying out
the policy and working toward those policy goals. The NEPA process
requires different levels of environmental review and analysis of
Federal agency actions, depending on the nature of the action. As
stated in 40 CFR 1508.18(a), actions include new and continuing
activities, including projects and programs entirely or partly
financed, assisted, conducted, regulated, or approved by federal
agencies; new or revised agency rules, regulations, plans, policies, or
procedures; and legislative proposals. Some actions, because of the
nature of their potential environmental effects are categorically
excluded from further environmental analysis and are known as CatExs.
If an action is not categorically excluded, additional review will be
performed either through an EA, or, where the circumstances warrant, a
more rigorous EIS to ensure that the additional time and analysis is
both expeditious and serves to better inform the decision at hand.
Rules specifying the requirements for NEPA analysis are in government-
wide NEPA regulations issued by CEQ and available at 40 CFR parts 1500
through 1508, and in individual agency regulations, including the
Department of Agriculture's NEPA implementing regulations (7 CFR part
1b). The scope of this proposed rule is to update the FSA NEPA
implementing regulations.
A CatEx is used typically for actions that do not have a
significant impact on the quality of the human environment, such as a
farm loan consolidation or funding for the maintenance of existing
buildings. The general NEPA regulations define the human environment as
``the natural and physical environment, and the relationship of people
with that environment'' (40 CFR 1508.14). Individual actions are not
categorically excluded by this rulemaking; in the future, those actions
that fit into a specific category can be categorically excluded if
there are no extraordinary circumstances for the specific proposed
action at hand. If an action is not in a categorically excluded
category, then the next step in the NEPA process is usually an EA. An
EA is prepared to analyze the potential environmental impact of a
Federal agency action and
[[Page 52240]]
alternatives to the action to determine whether proposed actions can
proceed without supplemental environmental review. An EA can result in
a proposal not proceeding, a Finding of No Significant Impact (FONSI),
or a determination that the environmental impact will be significant
and therefore an EIS is required. If the agency determines at an early
stage that there is clearly the potential for significant environmental
impact, FSA can start the EIS process without first doing an EA.
NEPA requires a Federal agency to prepare an EIS for any major
Federal action that significantly affects the quality of the human
environment (see 42 U.S.C. 4332(c)). The criteria for what constitutes
a ``major Federal action significantly affecting the quality of the
human environment'' are specified in the general NEPA regulations that
apply to all Federal agencies in 40 CFR 1508.18. The EIS must include a
detailed evaluation of:
(1) The environmental impact of the proposed action;
(2) Any adverse environmental effects that cannot be avoided;
(3) Alternatives to the proposed action;
(4) The relationship between the local, short-term resource uses
and the maintenance and enhancement of long-term ecosystem
productivity; and
(5) Any irreversible and irretrievable commitments of resources.
NEPA requires that the environmental evaluation must be started
once a proposal to take an action is concrete enough to warrant
analysis and must be completed at the earliest possible time to ensure
that planning and implementation decisions reflect environmental
values. The NEPA review informs the decision maker and the public, and
must be completed before a decision is made.
NEPA also establishes the President's Council on Environmental
Quality (CEQ). Executive Order 11514, ``Protection and Enhancement of
Environmental Quality,'' as amended by Executive Order 11991,
``Relating to Protection and Enhancement of Environmental Quality,''
directs the CEQ to prepare binding regulations governing how Federal
agencies are to implement NEPA. The CEQ NEPA regulations (40 CFR parts
1500-1508) provide this general regulatory framework.
The CEQ NEPA regulations require every Federal agency to develop
agency-specific procedures for implementing NEPA. Each Federal agency's
NEPA implementing procedures supplement the CEQ regulations to address
the agency's specific environmental review needs. This proposed rule
supplements the CEQ's NEPA regulations, and the USDA general NEPA
regulations at 7 CFR part 1b, addressing their implementation by FSA.
Background--FSA Organizational History
FSA was created in 1995 by merging the former Agricultural
Stabilization and Conservation Service (ASCS) and the farm loan portion
of the Farmers Home Administration (FmHA); currently the Farm Programs
and Farm Loan Programs, respectively. (As required by the Federal Crop
Insurance Reform and Department of Agriculture Reorganization Act of
1994 (Pub. L. 103-354).) Since that reorganization, FSA has been
operating under two separate sets of NEPA regulations, one for the
programs within the scope of the former ASCS and one for programs
within the scope of the former FmHA. This proposed rule would
consolidate, clarify, and update FSA NEPA regulations to establish a
single set of NEPA regulations for FSA, and so that those regulations
reflect current FSA organizational structure, environmental laws,
Executive Orders, and CEQ guidance and policy.
FSA's scope also includes field operations and commodity warehouse
activities that were included in the scope of the former ASCS. These
activities are categorically excluded as inventory, informational, or
administrative actions under USDA's general NEPA implementing rules in
7 CFR part 1b and those CatExs would continue to be available for
application by the FSA. This rule would not change the USDA department-
wide CatExs that would apply to FSA programs that solely involve those
actions or similar actions identified in 7 CFR 1b.3.
Current Structure of NEPA Regulations That Apply to FSA; Proposed
Restructuring
The Farm Programs part of FSA oversees conservation, disaster
assistance, direct and countercyclical payments, price support, farm
storage facility loans, and commodity loan programs. Currently, the
NEPA regulations governing FSA Farm Programs are in 7 CFR part 799.
Many current FSA programs did not exist in 1980 and are therefore not
specifically addressed under the current NEPA regulations in 7 CFR part
799.
The Farm Loan Programs part of FSA is responsible for providing
direct farm loans, guaranteed farm loans, and land contract guaranteed
loans. Currently, the NEPA regulations governing Farm Loan Programs are
at 7 CFR part 1940, subpart G, and apply to FSA farm loans and to other
USDA activities associated with the Rural Housing Service, Rural
Business-Cooperative Service, and Rural Utilities Service, (also
formerly part of FmHA). These regulations contain provisions that refer
to programs that either no longer exist or are not FSA programs.
FSA is responsible for NEPA compliance for the Commodity Credit
Corporation (CCC) programs that FSA administers. FSA currently has no
separate NEPA regulations for CCC; existing FSA NEPA regulations in 7
CFR part 799 apply for CCC programs that are administered by FSA. Those
will be included in this rule.
The proposed rule would implement a single consolidated set of FSA
NEPA regulations in 7 CFR part 799. As a result, the regulations in 7
CFR part 1940, subpart G, would no longer apply to FSA, and would be
amended accordingly. The proposed changes are intended to improve
clarity in the regulations, allow more efficient program implementation
at the field level, provide more openness and transparency during FSA's
environmental decision-making, and simplify program administration.
The revised part 799 would have six subparts, titled ``General FSA
Implementing Regulations for NEPA,'' ``FSA and Program Participant
Responsibilities,'' Environmental Screening Worksheet,'' ``Categorical
Exclusions,'' ``Environmental Assessments,'' and ``Environmental Impact
Statements.'' The ``FSA and Program Participant Responsibilities''
subpart would include a summary chart of the entire FSA NEPA process.
Following the discussion of the regulatory changes, a summary table
provides a general comparison of the major NEPA provisions, the current
regulations, and the proposed regulation. In general, FSA has already
administratively implemented FSA NEPA procedures to meet current NEPA
requirements as specified in Executive Orders and CEQ guidance; those
currently implemented FSA NEPA procedures are reflected in this rule as
proposed changes to the regulation. For example, Programmatic EAs
(PEAs) are not in the current regulations, but FSA already does such
analyses in compliance with current CEQ regulations and guidance. So,
the proposed provisions for PEAs represent a revision to the
regulations, which specifically authorize and further explain FSA NEPA
procedures. A detailed crosswalk comparing the specific regulatory
changes between the current FSA regulations and the
[[Page 52241]]
proposed regulations would not accurately reflect the changes in FSA
NEPA procedures that would impact the public. Combining the
requirements from the existing 7 CFR parts 799 and 1940 involved
significant editing and restructuring. This resulted in proposed
regulations that are significantly rewritten, but the underlying FSA
NEPA procedures remain largely unchanged. Therefore, the summary table
highlights the substantive procedure changes, rather than the detailed
editorial restructuring and removal of obsolete provisions. This table
is intended to provide a quick comparison of the major NEPA provisions
and show how they are treated in both the current regulations and the
proposed regulation to clarify the actual changes that will have an
impact on the public and the actions that FSA funds.
The CEQ regulations require that Federal agencies implement NEPA
procedures, in part to ``reduce paperwork and the accumulation of
extraneous background data and to emphasize real environmental issues
and alternatives'' (40 CFR 1500.2(b)). FSA believes that the proposed
changes will meet that requirement, by clarifying the procedures for
completing EAs and EISs, and by expanding and making the CatEx list
more specific. The changes will significantly reduce paperwork and
allow FSA to focus limited resources on real environmental issues and
alternatives for other actions, as appropriate.
Emergency circumstances will continue to be handled consistent with
40 CFR 1506.11 and applicable CEQ guidance.
Environmental Screening Worksheet
This rule includes procedures to increase transparency and
accountability of FSA's NEPA process. One of those procedures is a new
worksheet that will be used to assess the need for, and extent of, NEPA
evaluations for all FSA programs. This proposed rule describes the use
of the new environmental screening worksheet (ESW) in the revised 7 CFR
part 799, subpart C. ESW and the process for using it would represent a
substantive change from current practice. Implementation of the ESW
would consolidate two forms required by 7 CFR parts 799 and 1940,
subpart G, reducing total paperwork and ensuring better compliance with
NEPA. FSA staff would use the ESW as an initial screening tool to
evaluate and document any likely environmental impacts of proposed
actions and determine the potential significance and appropriate level
of NEPA review (CatEx, EA, or EIS). For some types of CatEx, completion
of the ESW will identify the CatEx being considered and document the
determination whether extraordinary circumstances exist, and will
determine whether the CatEx is appropriately applied or further NEPA
review of that proposed action is appropriate. The new ESW consolidates
the evaluation criteria from multiple forms and checklists currently
used by FSA for environmental evaluation. Having one form will reduce
the paperwork for FSA and ensure compliance with NEPA.
As proposed, 7 CFR part 799, subpart C, specifies the categories of
actions that would require the use of the ESW and how the ESW would be
used. In general, the ESW would be required for all actions except
those CatExs listed in Sec. 799.31, which FSA has determined do not
require further documentation (beyond that provided in the
substantiation for establishing the CatEx and the project file) for
specific proposed actions. An administrative record was created, in
consultation with CEQ, to substantiate the CatExs in this rule. The
administrative record includes benchmarking CatExs by other government
agencies and documentation from previous FSA NEPA analysis of these
types of actions.
The next section of this document explains the new categories of
CatExs, some of which require an ESW. Some examples of CatEx actions
proposed in Sec. 799.31 that would not require an ESW include many
loan actions, fence repair, and maintenance of existing buildings. The
list of actions specified in Sec. 799.32 of this rule may be
categorically excluded depending on the outcome of the review
documented in the ESW. Those CatEx actions would require an ESW to
determine if extraordinary circumstances exist that require further
environmental analysis. Some examples of these actions that would be
analyzed with an ESW include loan transfers with planned new land
disturbance and fence installation.
Extraordinary circumstances, as specified in this proposed rule,
are considered in the context of a specific action and include
situations with potentially significant impacts. If such circumstances
do exist, then an EA is required for an action that would otherwise be
categorically excluded.
In addition to its use for NEPA review, the ESW would also be
required for a list of specific actions, specified in Sec. 799.34,
that FSA has determined may have the potential to affect historic
properties. This includes actions such as operating loans for
construction and well drilling.
For all actions for which there is no applicable CatEx, the ESW
would be used to determine whether an EA or an EIS is the next step in
the NEPA process.
USDA agencies and other Federal agencies have similar environmental
screening tools (for example, USDA's Natural Resources Conservation
Service (NRCS) and Rural Development, the Department of Energy, the
Department of Defense). FSA reviewed those screening tools and
considered these agencies' approaches during development of the ESW.
The ESW would replace the existing form FSA 850 ``Environmental
Evaluation Checklist'' document and the RD 1940-22, which local FSA
staff and County Office Committee reviewers have found to be somewhat
lengthy, confusing, and duplicative paperwork. Due to its length and
complexity, the existing checklist has been used inconsistently. The
new, more concise ESW is designed to be applied consistently.
This proposed rule specifies the situations in which the ESW would
be used by FSA. The ESW would be completed by FSA field office
personnel during the review of an application for any FSA program,
unless the program is categorically excluded from further NEPA analysis
without documentation in an ESW, or FSA receives technical assistance
with the environmental evaluation from USDA or another Federal agency
that can be used in place of the ESW. For example, FSA often receives
technical assistance from NRCS, which uses its own evaluation form. The
NRCS form provides the same information as the ESW and therefore is
used instead of the ESW when NRCS supplies FSA technical assistance.
The use of the new FSA ESW as specified in this rule is expected to
make overall action planning, and project-specific environmental
reviews, more timely and cost effective. It is also expected to provide
more clarity and transparency to the environmental review process.
CatEx Changes
This proposed rule would update and clarify the CatEx requirements
that apply to FSA programs and group those requirements in a new
subpart. Consistent with CEQ regulations, subpart D of the proposed
rule specifies that a ``categorical exclusion'' is a category of agency
actions that normally have no individually or cumulatively significant
effect on the human environment (see 7 CFR 799.30). Subpart D would
provide a longer and more specific list of categorically excluded
actions than is in the current
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regulations (see 7 CFR 799.31 and 799.32). The updated and expanded
list of CatExs represents a substantive change. Many of the actions
proposed in this rule as CatExs are not explicitly listed as CatExs in
the current FSA NEPA regulation, but have been considered as CatExs
under the Departmental regulations (for example 7 CFR part 1b(3)(a)(2)
activities which deal solely with funding programs). In the past, some
program regulations should have been categorically excluded, but were
not; this rule requests public comment on all of the proposed CatExs
and proposes to add all such actions that should have been
categorically excluded in the FSA NEPA regulations. Adding the specific
list of CatExs to the FSA NEPA regulation adds clarity and transparency
to the NEPA process by consolidating all FSA CatExs in a single
regulation and by providing an opportunity for public comment on the
CatExs in this proposed rule.
Some of the proposed CatExs are similar to the CatExs of other
Federal agencies and reflect FSA's experience with similar factual
circumstances. For example, the action of ``fencing'' is an action that
FSA has categorized as a CatEx that also has been identified as a CatEx
by other agencies, such as the Department of Energy, in their NEPA
implementing regulations. It has also been documented in several FSA
EISs for the Emergency Conservation Program to have no significant
impact on the environment. Other new CatExs are more specific to FSA
and reflect FSA's past experience with similar factual circumstances.
These CatExs have been found to have no potential to produce
significant environmental impacts on the human environment based on
past NEPA documentation by FSA environmental experts and their review
of the impacts for implementing those actions. For example, many of the
loan program actions conducted by FSA such as refinancing, closing cost
payments, and deferral of loan payments, have been shown consistently
to have no potential to significantly impact the human environment as a
result of the FSA action. In addition, those actions are categorically
excluded in 7 CFR 1940.310(e)(2) as loan-closing and servicing
activities.
There are many CatExs proposed in this rule on the basis of the
location where the specific actions would be occurring. For example,
various actions that would take place within previously disturbed or
developed farmland, and actions on land where the former state of the
area and its ecological functions have already been altered, are
appropriate for a CatEx. These would also include actions on land that
has been previously cultivated, as long as the proposed new action
would not disturb below the plow zone or amount to very limited
disturbance. The Department of Energy uses this same previously
disturbed ground criteria as an integral component of their CatExs.
FSA proposes to separate its actions into three broad categories
with regards to categorical exclusion and any further required
environmental review. As explained below, these are actions that (1)
are automatically excluded from further environmental review without
further documentation, (2) may be excluded from further environmental
review based on the result of the ESW, and (3) are not excluded and
require further environmental review (EA or EIS):
First, those actions that would be categorically excluded
from further environmental review without documentation. There are a
total of 71 of these types of actions proposed in this rule and include
actions such as paying loan closing costs, refinancing debt, and a
payment to support commodity prices with no requirement for any action
on part of the recipient. Most of these type of actions would also not
be considered as undertakings that have potential to affect a historic
property and therefore would not be subject to section 106 of the
National Historic Preservation Act of 1966 (NHPA) (16 U.S.C. 470f). FSA
may also add CatExs to the regulations in the future. As specified in
this rule, and discussed below future CatExs would be proposed in the
Federal Register with an opportunity for public comment (see Sec.
799.35 and 40 CFR 1507.3). FSA will consult with CEQ on any new CatExs
prior to publication, as is the normal process for establishing CatExs,
and as was done with this rule.
Second, those actions that would be considered as CatExs
so long as they are documented with an ESW. Extraordinary
circumstances, as specified in this proposed rule, are unique to a
specific action and include situations where an action has potentially
significant impacts. The presence or absence of such extraordinary
circumstances would be determined by the completion of the ESW. There
are a total of 21 of these actions proposed in this rule, including
actions such as loans for livestock purchases, construction in
previously disturbed areas, grading, shaping, leveling, and refilling.
These are categories of actions where such extraordinary circumstances
with the potential for environmental impact have rarely resulted in
potentially significant effects. In addition, most of these actions are
not considered as undertakings that have the potential to affect a
historic property and therefore would not be subject to section 106 of
the NHPA.
Third, those actions that typically have the potential to
have a significant impact on the human environment but for which, as a
general matter, mitigation measures can be applied to decrease the
level of significance to support a Finding of No Significant Impact.
For those actions an environmental review in the form of an EA or EIS
will be required and a CatEx would not be considered. These would be
analyzed by completing the ESW and using the results to determine the
need for an EA or an EIS. There are a total of 47 of these actions and
include actions such as pond planning and construction, dike planning
and construction, and operating loans for actions with demolition or
construction planned. If a property is deemed historic, these actions
are also considered as undertakings that have the potential to affect a
historic property and would be subject to section 106 of NHPA.
Consultation with the State Historic Preservation Officer (SHPO),
Tribal Historic Preservation Officer (THPO), Tribal governments, and
the public will be conducted as appropriate based on the location,
nature, and scale of the action.
As specified in Sec. 799.35 of this proposed rule, the CEQ
regulations at 40 CFR 1507.3, and in CEQ guidance on ``Establishing,
Applying and Revising Categorical Exclusions under the National
Environmental Policy Act (NEPA)'' and published in the Federal Register
on December 6, 2010 (75 FR 75628-75638), FSA is required to publish a
document in the Federal Register to announce new CatExs. The document
must provide no less than 30 days for public review and comment. This
proposed rule serves as the notice of the new CatExs proposed in this
rule, and comments are requested for a 90-day period on all of the
proposed rule, including the CatExs specified in Sec. Sec. 799.31 and
799.32.
The inclusion in the regulations of CatExs that were previously not
explicitly listed as CatExs in the current FSA NEPA regulations but
were previously documented as CatExs in their corresponding program
regulations and FSA handbooks will increase transparency and clarity of
FSA's NEPA process. The new CatExs added with this rule, and the new
ESW, will reduce the time and effort required for the
[[Page 52243]]
environmental evaluation of actions that in the past required an EA,
but almost always resulted in a FONSI as the result of the EA.
EA Changes
The current FSA NEPA regulations in 7 CFR part 1940, subpart G,
have two categories of Environmental Assessments (Class I and Class
II). As currently specified by CEQ, there is no variation on EA
requirements, for example, a checklist does not meet the definition of
an EA (40 CFR 1508.9). This proposed regulation has only one category
of Environmental Assessment, which would make the NEPA process less
complex and consistent with the CEQ regulations. This is a substantive
change in the regulation, but not in the current process.
The current FSA Farm Programs NEPA regulations in 7 CFR part 799 do
not specify the types of actions for which an EA is required. This rule
proposes a specific list of actions for which an EA is normally
required, in addition to the previously discussed list of CatExs where
an ESW is needed to determine if an EA is required (see 7 CFR 799.31
and 799.32, respectively). This rule also proposes the information that
must be included in an EA (see 7 CFR 799.42). These provisions would
help add clarity to the NEPA process.
This rule proposes to add criteria for developing a programmatic EA
(PEA) if proposed actions in a program individually have an
insignificant environmental impact, but cumulatively could have a
significant impact (see 7 CFR 799.40(c)). FSA currently performs PEAs
under the current regulations. FSA's PEAs are broad NEPA documents that
examine a program or policy on a larger scale and provide an analytical
framework to examine environmental impacts in comprehensive manner
while providing the basis for future proposed actions and site-specific
analyses (``tiering''). For example, the rulemaking to implement the
Voluntary Public Access and Habitat Incentive Program (VPA-HIP)
required State-level PEAs for all grant recipients. This eliminates the
need to review and prepare an ESW for each of the individual incentives
to provide public access or implement public access related activities
for any single parcel of land in a State. The PEA process allows FSA to
identify similar actions that share common issues, timing or geography;
provides a framework for future tiered analyses to be consistent with
one another; shortens development time; and reduces funding needs while
streamlining or eliminating the environmental review process for
certain individual actions analyzed in the PEA.
The use of the amended CatEx lists would likely substantially
reduce the number of EAs that FSA is required to complete in a year, as
compared to the number of EAs that FSA has completed in the past. The
expected reduction in the number of EAs would depend on the finding of
no extraordinary circumstances during the ESW analysis--in some cases
the ESW process could result in a finding that an EA is required.
Specifically, many Farm Loan Programs actions that currently require an
EA would be categorically excluded with documentation required using
the new ESW process. Some would be categorically excluded without
documentation.
EIS Changes
This rule proposes a new subpart on the EIS process that
consolidates EIS requirements from the existing regulations and more
specifically describes the processes involved. As proposed in this rule
and as required by NEPA and CEQ regulations, an EIS would be required
for the following four types of actions:
Legislative proposals, not including appropriations
requests, drafted and submitted to Congress by FSA that have the
potential to have significant impact on the quality of the human
environment, as specified in 40 CFR 1506.8;
Regulations for new programs, if through the preparation
of an EA, FSA has determined that an EIS is necessary;
Broad Federal assistance programs administered by FSA
involving significant financial assistance for ground disturbing
activities or payments to program participants that may have
significant cumulative impacts on the human environment or national
economy; and
Ongoing programs that have been found through previous
environmental analyses to have major environmental concerns.
These four categories of actions, while more clearly defined in
this proposed rule than in the current regulations, are substantially
similar to the requirements in the current NEPA regulations for FSA
Farm Programs in 7 CFR part 799. The current NEPA regulations for FSA
Farm Loan Programs in 7 CFR part 1940, subpart G, specify some general
criteria for determining if an EIS is needed, with an emphasis on the
location of the action (for example, floodplains, wetlands). The
proposed changes are intended to clarify the requirements for an EIS,
but are not intended to substantively change when an EIS is required.
The changes in this proposed rule are not expected to result in a
change in the number of EISs that FSA conducts each year. The proposed
changes explain more clearly the procedures and process FSA will follow
when preparing an EIS, including specific requirements for the
information that must be included in an EIS. This rule also adds
specific information on the process for developing a programmatic EIS,
which is currently specified in the FSA handbooks rather than the
regulations. As noted earlier, much of that process has already been
implemented administratively.
Summary of Proposed Substantive Changes
This proposed rule consolidates and reorganizes the provisions
currently in 7 CFR parts 799 and 1940, subpart G, into a revised 7 CFR
part 799, adds longer and more specific lists of CatExs and of actions
requiring an EA, and adds new provisions to comply with current CEQ
guidance. The following table summarizes how the major provisions in
this proposed regulation compare to similar provisions in the existing
regulations.
Table 1--Changes From Current 7 CFR Parts 799 and 1940 to Proposed 7 CFR Part 799
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Current 7 CFR part Current 7 CFR part Proposed 7 CFR Additional
Major provisions 799 1940 part 799 information
----------------------------------------------------------------------------------------------------------------
Categorical Exclusions (CatEx).. The term Some specific Farm Lists all Proposed rule also
categorical Loan Programs categories of FSA includes specific
exclusion is not actions are actions and process for
used, although categorically separates them publishing new
there is a list excluded under 7 into three CatExs in the
of actions not CFR 1940.310(d). categories: future, including
normally Actions public review and
requiring an EA that are always comment process.
or EIS. CatExs, with no
documentation
required.
[[Page 52244]]
Actions
that are
categorically
excluded with
documentation in
an ESW to
determine whether
an extraordinary
circumstance
exists in which
case an EA would
be required.
Actions
that cannot be
CatExs and
require the
completion of the
ESW to determine
if an EA or EIS
is required.
Environmental Assessments (EAs). Requires NEPA Requires EAs, Eliminates the Some actions that
process to be depending on Class I and Class currently require
followed but does circumstances, II actions for an EA would be
not specify which for certain Farm Farm Loan categorically
Farm Programs Loan Programs Programs. Lists excluded actions.
actions require actions. See 7 all specific FSA
an EA. CFR 1940.311, actions that
312, 318, and 319. require an EA,
and those that
require an ESW to
determine if an
EA is required.
Environmental Impact Statements Specifies general Specifies criteria Specifies the No change in the
(EIS). categories of FSA for determining general types of actions
Farm Programs significant categories of FSA for which an EIS
actions that are impact, with an actions that are is required, but
likely to have a emphasis on likely to have a more detail on
significant floodplains and significant the content and
impact on the wetlands. See 7 impact on the review process of
environment, and CFR 1940.313, environment. an EIS.
specific programs 314, and 320. Specifies the
that are not. content of an EIS
and the review
process.
Environmental Screening An appendix Environmental An ESW would be The description of
Worksheet (ESW). provides the now Evaluation (RD required for FSA how to use the
obsolete ASCS-929 1940-22 (NOTE: RD actions that fall current FSA
form. is a successor into a listed Environmental
agency to FmHA)) CatEx requiring Evaluation form
is required to documentation to (FSA 850) is in
determine if a determine if an the handbooks,
Class I or Class extraordinary not the
II EA should be circumstance regulations. The
prepared. See 7 exists and if an ESW is shorter
CFR 1940.317(c). EA or EIS should and has more
be prepared. specific criteria
than the current
FSA 850.
Programmatic NEPA Process....... Not addressed..... Not addressed Specified process This is not a new
specifically, for conducting process for FSA,
although tiering programmatic NEPA but the process
is in 7 CFR for FSA programs is currently not
1940.327. and actions that specified in the
have a national FSA regulations.
scope.
Integration of other NEPA and CEQ's Some other Many environmental FSA already
environmental laws and NEPA regulations environmental law laws, Executive complies with the
regulations. are the only requirements are Orders, and Executive Orders,
environmental mentioned, but regulations are USDA regulations,
laws and not in detail and added as laws, and CEQ
regulations with little references. guidance listed
referenced. guidance on how Compliance with in the proposed
they apply. other rule, but most of
environmental those references
laws such as NHPA are not in the
is explained in current
detail and regulations.
integrated into
the ESW.
----------------------------------------------------------------------------------------------------------------
Consolidating and Clarifying Amendments
Many of the proposed changes in this rule are essentially minor
technical and clarifying changes, some changes reorganize the
requirements from the current regulations. This section of the preamble
discusses the technical and structural changes to the regulations that
are intended to increase clarity and remove obsolete provisions, but
would not change requirements for the public or change the
environmental review processes administratively.
All of the definitions that apply to NEPA implementation for FSA
Farm Programs, Farm Loan Programs, and CCC programs administered by FSA
would be in one section of the consolidated regulations, Sec. 799.4.
In addition to the definitions already in the current regulations, this
rule proposes to add definitions for ``application,'' ``construction,''
``consultation,'' ``environmental screening worksheet,'' ``financial
assistance,'' ``historic properties,'' ``memorandum of agreement,''
``program participant,'' ``protected resources,'' ``State Historic
Preservation Officer,'' ``Tribal Historic Preservation Officer,'' and
``wetlands.'' These terms are all already used in FSA's current NEPA
implementation and Environmental Quality Programs handbook (1-EQ);
adding them to the regulations will provide clarity to the FSA NEPA
process, but will not change the existing process. For example, the
definition for ``historic properties'' in this rule, includes
prehistoric or historic districts, sites, buildings, structures or
objects, which are included in, or eligible for inclusion in, the
National Register of Historic Places, which is consistent with the
other Federal agencies and NHPA (16 U.S.C. 470-470x-6) regulations.
[[Page 52245]]
Similarly, the definition for ``consultation'' in this rule
includes the process of considering the views of other participants in
the environmental review process and seeking agreement where feasible
is consistent with how other USDA agencies (for example, NRCS) define
``consultation'' in their NEPA and NHPA regulations.
As proposed in this rule, all of the FSA NEPA compliance
responsibilities would be specified in 7 CFR part 799. The regulations
would clarify who is responsible for NEPA and NHPA compliance at the
national level by specifying that the Administrator or designee will
appoint a National Environmental Compliance Manager as required by 40
CFR 1507.2(a) and a Federal Preservation Officer as required by section
110 of NHPA (16 U.S.C. 470hndash;2(a)) and Executive Order 13287. These
are not new responsibilities; this would clarify the regulations. To
update the current position titles in FSA, the references to State
Director from 7 CFR part 1940, subpart G, would be changed to State
Executive Director. Other revised provisions would clarify the role of
the State Environmental Coordinator, to be consistent with current
practice.
The requirements for CatExs, EAs, and EISs would be organized into
separate subparts, so that it would be clearer which requirements and
processes apply to each type of environmental review. For example, the
section on ``tiering,'' a process that is relevant to the EIS process
but not used for EAs or CatExs, would be in the EIS subpart, but the
requirements for ``tiering'' would not change.
Many of the changes in this proposed rule would remove obsolete
provisions and terminology. For example, references to agencies that no
longer exist would be removed, and replaced with references to FSA.
This rule would also remove references to programs that no longer exist
(such as the Agricultural Conservation Program, Water Bank Program,
Tobacco Production Adjustment Program, Bee Indemnity Program, and Naval
Stores Program), replacing them with more general provisions that apply
to types of programs and actions rather than to specific programs.
These changes would make the regulations clearer, more transparent, and
up to date, but are not substantive changes and should have no impact
on the NEPA analysis process.
The current regulations in 7 CFR parts 799 and 1940, subpart G,
have numerous exhibits and appendices. These include obsolete forms and
obsolete organizational charts. This rule would remove those exhibits
and appendices, which would not change the current process because in
most cases the referenced items are no longer used. This rule would add
references in Sec. 799.1, ``Purpose,'' to several dozen relevant
environmental laws, Executive Orders, and regulations that were
developed since the current regulations were published. References to
departmental regulations currently listed in appendices to 7 CFR part
1940 would also be moved to this list of references. FSA is already
required to comply with these laws, Executive Orders, departmental
regulations, and regulations of other agencies, so listing all of the
relevant references in one consolidated section would not be a change
the current practice.
Conforming Changes
In addition to the changes discussed above, a number of changes
would need to be made in other related FSA regulations. Throughout the
FSA regulations, references to NEPA regulations and environmental
compliance would be updated to refer to 7 CFR part 799. Several
environmental compliance sections would become redundant and would be
removed. For example, the separate environmental compliance section for
the Farm Storage Facility Loan program would be removed, because that
program is subject to the same environmental compliance requirements as
every other FSA program.
Currently, the Rural Housing Service and Rural Business-Cooperative
Service also use 7 CFR part 1940, subpart G. However, exhibit M to
subpart G, ``Implementation Procedures for the Conservation of Wetlands
and Highly Erodible Land Affecting Farmer Program Loans and Loans to
Indian Tribes and Tribal Corporations,'' is currently only used by FSA.
The Rural Development agencies do not use exhibit M to subpart G
because the provisions related to swampbuster and sodbuster do not
apply to the Rural Development agencies. There are cross references to
exhibit M throughout subpart G that would be unnecessarily complicated
to change at this time because the goal is to remove subpart G when
both Rural Development and FSA have their own replacement regulations
in place. Therefore, the content of exhibit M to subpart G would be
replaced with references for specific types of information, for
example, when to refer to 7 CFR part 12 or 7 CFR part 799.
Along with the changes proposed to the regulations, FSA will make
conforming changes to any references to 7 CFR part 1940, subpart G, for
example, in forms and handbooks.
Executive Orders 12866 and 13563
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review,''
direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as
significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and has reviewed this rule. A summary of the cost benefit
analysis is provided below and is available at www.regulations.gov and
from the contact information listed above.
Clarity of the Regulations
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on this proposed rule, we invite your
comments on how to make it easier to understand. For example:
Are the requirements in the rule clearly stated? Are the
scope and intent of the rule clear?
Does the rule contain technical language or jargon that is
not clear?
Is the material logically organized?
Would changing the grouping or order of sections or adding
headings make the rule easier to understand?
Could we improve clarity by adding tables, lists, or
diagrams?
Would more, but shorter, sections be better? Are there
specific sections that are too long or confusing?
What else could we do to make the rule easier to
understand?
Summary of Economic Impacts
This rule is expected to provide both quantifiable and qualitative
benefits. It is expected to provide qualitative benefits by improving
the efficiency and transparency of the NEPA process. By consolidating
FSA NEPA procedures into a single rule and more clearly identifying the
process required under different types of circumstances, this rule is
expected to increase understanding and consistency in implementing the
NEPA process while decreasing the time spent addressing NEPA
requirements. Confusion in
[[Page 52246]]
selecting the correct type of NEPA analysis can cause unnecessary
delays in implementing projects and approving loans. For example, delay
can occur if an EA was done but a CatEx could have applied. The current
number of any NEPA analysis errors, as well as the delays caused by the
lack of clarity and consistency in the current rules, is difficult to
quantify. However, it is clear that increasing consistency and
transparency, and reducing errors and uncertainty, will provide public
benefit.
The expanded and clarified list of CatExs in this rule is expected
to generate specific, quantifiable benefits associated with reducing
the number of EAs required. One benefit will be the cost savings due to
reduced FSA workload. The public, including, but not limited to,
individual program participants, lenders, and State agencies and
organizations, will likely see both cost savings and qualitative
benefits from the reduced time required to complete the NEPA process
for both Farm Programs and Farm Loan Programs actions. To estimate the
impact of fewer EAs, the Cost Benefit Analysis uses the assumptions
that current programs continue and that most Farm Loan Programs actions
for which the current regulation would require site level EAs would
qualify for either CatExs without documentation or for CatExs that
require the use of the ESW. Using these assumptions, the proposed NEPA
rule changes could eliminate, on average, 314 environmental assessments
per year based on our analysis of Farm Loan Programs EAs done between
2002 and 2009. In 2008, the average cost to FSA for these EAs was
estimated at $1,100, suggesting an annual savings of $345,000 in FSA
expenses for environmental reviews as a result of this rule.
Actual cost savings may be higher or lower than $345,000 in any
specific year, because the number and types of required NEPA analyses
in any given year depend on participation in the specific FSA programs
for which NEPA applies. For example, the impact for Farm Loan Programs
depends on how many loans are for actions on land that has already been
disturbed, as opposed to those that involve additional disturbance such
as pond or building construction.
This rule does not change the basic requirements for an EIS, so it
is not expected to result in a change in the number of EISs associated
with FSA programs. Therefore, no costs or benefits, other than
increased clarity of procedure, are expected for the EIS process as a
result of this rule.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), generally requires an agency to prepare a regulatory
flexibility analysis of any rule whenever an agency is required by the
Administrative Procedure Act (5 U.S.C. 553) or any other law to publish
a proposed rule, unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. FSA has determined that this rule would not have a
significant impact on a substantial number of small entities for the
reasons explained below. Consequently, FSA has not prepared a
regulatory flexibility analysis.
This rule would generally reduce the level of NEPA analysis
required for most Farm Loan Programs and some Farm Programs actions. It
should have a minor positive effect on small entities, including small
government entities, by reducing the uncertainty and delay associated
with NEPA compliance.
Environmental Evaluation
The Council on Environmental Quality regulations do not direct
agencies to prepare a NEPA analysis or document before establishing
Agency procedures (such as this regulation) that supplement the CEQ
regulations for implementing NEPA. Agencies are required to adopt NEPA
procedures that establish specific criteria for, and identification of,
three classes of actions: Those that normally require preparation of an
environmental impact statement; those that normally require preparation
of an environmental assessment; and those that are categorically
excluded from further NEPA review (40 CFR 1507.3(b)). Categorical
exclusions are one part of those agency procedures, and therefore
establishing categorical exclusions does not require preparation of a
NEPA analysis or document. 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 categorical exclusions 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. Ill. 1999),
aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
Executive Order 12372
Executive Order 12372, ``Intergovernmental Review of Federal
Programs,'' requires consultation with State and local officials. The
objectives of the Executive Order are to foster an intergovernmental
partnership and a strengthened Federalism, by relying on State and
local processes for State and local government coordination and review
of proposed Federal Financial assistance and direct Federal
development. This rule does not provide grants, cooperative agreements,
or any other benefits. Therefore, FSA has concluded that this rule does
not require consultation with State and local officials as when USDA
provides Federal financial assistance or direct Federal development
(see 7 CFR 3015.307). Therefore, this rule is not subject to Executive
Order 12372.
Executive Order 12988
This rule has been reviewed in accordance with Executive Order
12988, ``Civil Justice Reform.'' This rule preempts State and local
laws, regulations, or policies that are in conflict with the provisions
of this rule. The rule will not have retroactive effect. Any action
under this rule may be appealed, consistent with the Administrative
Procedure Act (Pub. L. 79-404). Before any judicial action may be
brought regarding the provisions of this rule, all administrative
remedies in accordance with 7 CFR parts 11 and 780 must be exhausted.
Executive Order 13132
This rule has been reviewed under Executive Order 13132,
``Federalism.'' The policies contained in this rule do not have any
substantial direct effect on States, the relationship between the
Federal government and the States, or the distribution of power and
responsibilities among the various levels of government. Nor does this
proposed rule impose substantial direct compliance costs on State and
local governments. The provisions in this proposed rule may impose
compliance costs on State and local governments, but these are not new
costs, as the provisions in this rule have already been implemented as
required by per various Executive Orders, laws, and CEQ guidance.
Therefore, consultation with the States is not required.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation
[[Page 52247]]
and Coordination with Indian Tribal Governments.'' Executive Order
13175 requires Federal agencies to consult and coordinate with tribes
on a government-to-government basis on policies that have tribal
implications, including regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes.
FSA has assessed the impact of this rule on Indian tribes and
determined that this rule does not, to our knowledge, have tribal
implications that require tribal consultation under Executive Order
13175. If a Tribe requests consultation, FSA will work with the USDA
Office of Tribal Relations to ensure meaningful consultation is
provided where changes, additions, and modifications are identified for
this rule, which are not expressly mandated by any law or regulation.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, or Tribal governments, or the
private sector. Agencies generally must prepare a written statement,
including a cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local, or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule does not contain Federal mandates for State, local, or tribal
governments or for the private sector that would result in the addition
analysis as required by Title II of UMRA. Therefore, this rule is not
subject to the requirements of sections 202 and 205 of UMRA.
Federal Assistance Programs
This rule applies to all Farm Service Agency Federal assistance
programs found in the Catalog of Federal Domestic Assistance.
Paperwork Reduction Act of 1995
Currently, as specified in 7 CFR 1940.350, the OMB control number
approving the NEPA information collection, for FSA and the Rural
Development agencies is 0575-0094. The proposed changes to the
regulation eliminate FSA's use of the form, RD 1940-22, Request for
Environmental Information, previously used by FSA and included in that
approval. In the past, financial institutions completed the form RD
1940-22 and submitted the form to FSA; that process has been revised
and that form is no longer used.
The proposed FSA NEPA regulation does not have any information
collection activities related to the NEPA process. An FSA county office
employee gathers information from soil maps, wetland maps, etc. then
visits the site. The FSA county office employee uses the ESW form,
which is an internal form within FSA only. The ESW is completed by the
FSA county office staff, with relevant information from one or more of
the following as appropriate: completed application, from the visiting
farmers, and like all other FSA programs an AD-1026, which is approved
for FSA use under OMB control number 0560-0185 is required to be on
file to comply with swampbuster and sodbuster. There is no information
collection burden for this proposed rule because it is associated with
application for or participation in one or more FSA programs and that
information collection burden is approved for each respective FSA
program, as needed. As noted in Sec. 799.42(c), FSA may request a
program participant to provide information for use in an EA. That
supplemental information will be case specific; the primary information
comes from the information the applicant gave to the program itself
(already covered by PRA) and site visits. Any additional information
will be specific to the action in question. Therefore, it does not
require additional approval under the Paperwork Reduction Act.
E-Government Act Compliance
FSA is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes. The proposed rule and
substantiating documents, and the final rule when approved, will be
available on the FSA Web site at http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep.
List of Subjects
7 CFR Part 761
Accounting, Loan programs-agriculture, Rural areas.
7 CFR Part 762
Agriculture, Banks, Banking, Credit, Loan programs-agriculture,
Reporting and recordkeeping requirements.
7 CFR Part 763
Agriculture, Banks, Banking, Credit, Loan programs-agriculture.
7 CFR Part 764
Agriculture, Disaster assistance, Loan programs-agriculture.
7 CFR Part 765
Agriculture, Agricultural commodities, Credit, Livestock, Loan
programs--agriculture.
7 CFR Part 766
Agriculture, Agricultural commodities, Credit, Livestock, Loan
programs--agriculture.
7 CFR Part 767
Agriculture, Credit, Government property, Government property
management, Indians--loans, Loan programs--agriculture.
7 CFR Part 770
Credit, Indians, Loan programs-agriculture, Reporting and
recordkeeping requirements.
7 CFR Part 772
Agriculture, Credit, Loan programs-agriculture, Rural areas.
7 CFR Part 773
Apples, Loan programs-agriculture.
7 CFR Part 774
Loan programs-agriculture, Seeds.
7 CFR Part 799
Environmental impact statements.
7 CFR Part 1436
Administrative practice and procedure, Loan programs-agriculture,
Penalties, Price support programs, Reporting and recordkeeping
requirements.
7 CFR Part 1940
Agriculture, Environmental protection, Flood plains, Grant
programs-agriculture, Grant programs-housing and community development,
Loan programs-agriculture, Loan programs-housing and community
development, Low and moderate income housing, Reporting and
recordkeeping requirements, Rural areas, Truth in lending.
For the reasons discussed in the preamble, FSA proposes to amend 7
CFR chapters VII, XIV, and XVIII as follows:
[[Page 52248]]
7 CFR Chapter VII
PART 761--FARM LOAN PROGRAMS; GENERAL PROGRAM ADMINISTRATION
0
1. The authority citation for part 761 would continue to read as
follows:
Authority: 5 U.S.C. 301 and 7 U.S.C. 1989.
Sec. 761.10 [Amended]
0
2. Amend Sec. 761.10(c)(3) by removing the words ``subpart G of 7 CFR
part 1940'' and adding the words ``part 799 of this chapter'' in their
place.
PART 762--GUARANTEED FARM LOANS
0
3. The authority citation for part 762 continues to read as follows:
Authority: 5 U.S.C. 301 and 7 U.S.C. 1989.
Sec. 762.128 [Amended]
0
4. Amend Sec. 762.128 as follows:
0
a. In paragraph (a) remove the words ``part 1940, subpart G, of this
title'' and add the words ``part 799 of this chapter'' in their place;
and
0
b. In paragraph (c)(3) remove the words ``part 1940, subpart G'' and
add the words ``part 799 of this chapter'' in their place.
PART 763--LAND CONTRACT GUARANTEE PROGRAM
0
5. The authority citation for part 763 continues to read as follows:
Authority: 5 U.S.C. 501 and 7 U.S.C. 1989.
Sec. 763.7 [Amended]
0
6. In Sec. 763.7(b)(12) remove the words ``part 1940, subpart G, of
this title'' and add the words ``part 799 of this chapter'' in their
place.
Sec. 763.16 [Amended]
0
7. In Sec. 763.16(a) remove the words ``part 799 and part 1940,
subpart G, of this title'' and add the words ``part 799 of this
chapter'' in their place.
PART 764--DIRECT LOAN MAKING
0
8. The authority citation for part 764 continues to read as follows:
Authority: 5 U.S.C. 301 and 7 U.S.C. 1989.
Sec. Sec. 764.51 and 764.106 [Amended]
0
9. Amend Sec. Sec. 764.51(b)(7) and 764.106(b) by removing the words
``subpart G of 7 CFR part 1940'' and adding the words ``part 799 of
this chapter'' in their place.
PART 765--DIRECT LOAN SERVICING--REGULAR
0
10. The authority citation for part 765 continues to read as follows:
Authority: 5 U.S.C. 301 and 7 U.S.C. 1989.
Sec. Sec. 765.205, 765.252, and 765.351 [Amended]
0
11. Amend Sec. Sec. 765.205, 765.252, and 765.351 by removing the
words ``subpart G of 7 CFR part 1940'' and adding the words ``part 799
of this chapter'' in their place in the following places:
0
a. In Sec. 765.205(a)(3);
0
b. Sec. 765.252(b)(3)(ii); and
0
c. Sec. 765.351(a)(6).
PART 766--DIRECT LOAN SERVICING--SPECIAL
0
12. Revise the authority citation for part 766 to read as follows:
Authority: 5 U.S.C. 301, 7 U.S.C. 1989, and 1981d(c).
Subpart C--Loan Servicing Programs
Sec. Sec. 766.102 and 766.112 [Amended]
0
13. Amend Sec. Sec. 766.102(a)(5) and 766.112(b)(2) by removing the
words ``subpart G of 7 CFR part 1940'' and adding the words ``part 799
of this chapter'' in their place.
PART 767--INVENTORY PROPERTY MANAGEMENT
0
14. The authority citation for part 767 continues to read as follows:
Authority: 5 U.S.C. 301 and 7 U.S.C. 1989.
Sec. 767.201 [Amended]
0
15. Amend Sec. 767.201, introductory text, by removing the words
``subpart G of 7 CFR part 1940'' and adding the words ``part 799 of
this chapter'' in their place.
PART 770--INDIAN TRIBAL LAND ACQUISITION LOANS
0
16. The authority citation for part 770 is revised to read as follows:
Authority: 5 U.S.C. 301 and 25 U.S.C. 488.
Sec. 770.5 [Amended]
0
17. Amend Sec. 770.5(a) by removing the words ``exhibit M to subpart G
of part 1940 of this title'' and adding the words ``part 799 of this
chapter'' in their place.
PART 772--SERVICING MINOR PROGRAM LOANS
0
18. The authority citation for part 772 continues to read as follows:
Authority: 5 U.S.C. 301, 7 U.S.C. 1989, 25 U.S.C. 490.
Sec. 772.4 [Amended]
0
19. In Sec. 772.4 remove the words ``7 CFR part 1940, subpart G and
the exhibits to that subpart and''.
Sec. 772.6 [Amended]
0
20. Amend Sec. 772.6(a)(6) by removing the words ``7 CFR part 1940,
subpart G'' and adding the words ``part 799 of this chapter'' in their
place.
PART 773--SPECIAL APPLE LOAN PROGRAM
0
21. The authority citation for part 773 continues to read as follows:
Authority: Pub. L. 106-224.
Sec. 773.9 [Removed]
0
22. Remove Sec. 773.9.
Sec. 773.18 [Amended]
0
23. Amend Sec. 773.18(a)(3) by removing the words ``7 CFR part 1940,
subpart G'' and adding the words ``part 799 of this chapter'' in their
place.
PART 774--EMERGENCY LOAN FOR SEED PRODUCERS PROGRAM
0
24. The authority citation for part 774 continues to read as follows:
Authority: Pub. L. 106-224
Sec. 774.9 [Removed]
0
25. Remove Sec. 774.9.
Sec. 774.17 [Amended]
0
26. Amend Sec. 774.17(d) by removing the words ``7 CFR part 1940,
subpart G'' and adding the words ``part 799 of this chapter'' in their
place.
0
27. Revise part 799 to read as follows:
PART 799--COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT
Subpart A--General Farm Service Agency (FSA) Regulations Implementing
NEPA
Sec.
799.1 Purpose.
799.2 FSA environmental policy.
799.3 Applicability.
799.4 Abbreviations and definitions.
Subpart B--FSA and Program Participant Responsibilities
799.5 National office environmental responsibilities.
799.6 FSA State office environmental responsibilities.
799.7 FSA program participant responsibilities.
799.8 Significant environmental effect.
799.9 Environmental review documents.
799.10 Administrative records.
799.11 Actions during NEPA reviews.
799.12 Emergency circumstances.
799.13 FSA as lead agency.
799.14 FSA as cooperating agency.
799.15 Public involvement in environmental review.
799.16 Scoping.
799.17 Public meetings.
799.18 Overview of FSA NEPA process.
[[Page 52249]]
Subpart C--Environmental Screening Worksheet
799.20 Purpose of environmental screening worksheet.
799.21 [Reserved]
Subpart D--Categorical Exclusions
799.30 Purpose of categorical exclusion process.
799.31 Categorical exclusions not requiring an environmental
screening worksheet.
799.32 Categorical exclusions requiring an environmental screening
worksheet.
799.33 Extraordinary circumstances.
799.34 Review for extraordinary circumstances.
799.35 Establishing and revising categorical exclusions.
Subpart E--Environmental Assessments (EA)
799.40 Purpose of an EA.
799.41 When an EA is required.
799.42 Contents of an EA.
799.43 Adoption of an EA prepared by another entity.
799.44 Finding of No Significant Impact (FONSI).
Subpart F--Environmental Impact Statements
799.50 Purpose of an EIS.
799.51 When an EIS is required.
799.52 Notice of intent to prepare EIS.
799.53 Contents of an EIS.
799.54 Draft EIS.
799.55 Final EIS.
799.56 Supplemental EIS.
799.57 Tiering.
799.58 Adoption of an EIS prepared by another entity.
799.59 Record of Decision.
Authority: 42 U.S.C. 4321-4370.
Subpart A--General FSA Implementing Regulations for NEPA
Sec. 799.1 Purpose.
(a) This part:
(1) Explains major U.S. Department of Agriculture Farm Service
Agency (FSA) environmental policies.
(2) Establishes FSA procedures to implement the:
(i) National Environmental Policy Act (NEPA) of 1969, as amended
(42 U.S.C. 4321-4370);
(ii) Council on Environmental Quality (CEQ) regulations (40 CFR
parts 1500 through1518); and
(iii) United States Department of Agriculture (USDA) NEPA
regulations (Sec. Sec. 1b.1 through 1b.4 of this title).
(3) Establishes procedures to ensure that FSA complies with other
applicable laws, regulations, and Executive Orders, including but not
limited to the following:
(i) American Indian Religious Freedom Act (42 U.S.C. 1996);
(ii) Archaeological and Historic Preservation Act (16 U.S.C. 469-
469c);
(iii) Archaeological Resources Protection Act of 1979 (16 U.S.C.
470aa-470mm);
(iv) Clean Air Act (42 U.S.C. 7401-7671q);
(v) Clean Water Act (33 U.S.C. 1251-1387);
(vi) Coastal Barrier Resources Act (16 U.S.C. 3501-3510);
(vii) Coastal Zone Management Act of 1972 (CZMA) (16 U.S.C. 1451-
1466);
(viii) Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. 9601-9675);
(ix) Endangered Species Act (16 U.S.C. 1531-1544);
(x) Farmland Protection Policy Act (7 U.S.C. 4201-4209);
(xi) Migratory Bird Treaty Act (16 U.S.C. 703-712);
(xii) National Historic Preservation Act (NHPA) of 1966, as amended
(16 U.S.C. 470-470x-6),
(xiii) Native American Graves Protection and Repatriation Act (25
U.S.C. 3001-3013);
(xiv) Resource Conservation and Recovery Act (42 U.S.C. 6901-
6992k);
(xv) Safe Drinking Water Act (42 U.S.C. 300h-300h.8);
(xvi) Wild and Scenic Rivers Act (16 U.S.C. 1271-1287);
(xvii) Wilderness Act (16 U.S.C. 1131-1136);
(xviii) Advisory Council on Historic Preservation regulations in 36
CFR part 800 ``Protection of Historic Properties;''
(xix) USDA, Office of Environmental Quality regulations in part
3100 of this title, ``Cultural and Environmental Quality'' (see part
190, subpart F, of this title, ``Procedures for the Protection of
Historic and Archaeological Properties,'' for more specific
implementation procedures);
(xx) USDA, Natural Resources Conservation Service regulations in
part 658 of this title, ``Farmland Protection Policy Act;''
(xxi) USDA regulations in part 12 of this title, ``Highly Erodible
Land and Wetland Conservation;''
(xxii) U.S. Department of the Interior, National Park Service
regulations in 36 CFR part 60, ``National Register of Historic
Places;''
(xxiii) U.S. Department of the Interior, National Park Service
regulations in 36 CFR part 63, ``Determinations of Eligibility for
Inclusion in the National Register of Historic Places;''
(xxiv) USDA, Departmental Regulation 9500-3, ``Land Use Policy;''
(xxv) USDA, Departmental Regulation 9500-4, ``Fish and Wildlife
Policy;''
(xxvi) Executive Order 11514, ``Protection and Enhancement of
Environmental Quality;''
(xxvii) Executive Order 11593, ``Protection and Enhancement of the
Cultural Environment;''
(xxviii) Executive Order 11988, ``Floodplain Management;''
(xxix) Executive Order 11990, ``Protection of Wetlands;''
(xxx) Executive Order 11991, ``Relating to Protection and
Enhancement of Environmental Quality;''
(xxxi) Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations;''
(xxxii) Executive Order 13007, ``Indian Sacred Sites;''
(xxxiii) Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments;''
(xxxiv) Executive Order 13186, ``Responsibilities of Federal
Agencies to Protect Migratory Birds;'' and
(xxxv) Executive Order 13287, ``Preserve America;''
(b) The procedures and requirements in this part supplement CEQ and
USDA regulations; they do not replace or supersede them.
Sec. 799.2 FSA environmental policy.
(a) FSA will:
(1) Use all practical means to protect and, where possible, improve
the quality of the human environment and avoid or minimize any adverse
environmental effects of FSA actions;
(2) Ensure the requirements of NEPA and other State and national
environmental policies designed to protect and manage impacts on the
human environment are addressed:
(i) As required by 40 CFR 1501.2, at the earliest feasible stage in
the planning of any FSA action,
(ii) Concurrently and in a coordinated manner,
(iii) During all stages of the decision making process,
(iv) Using professional and scientific integrity in their
discussions and analyses, identify applicable methodologies, and
explain the use of the best available information, and
(v) In consultation with all interested parties, including Federal,
State, and Tribal governments;
(3) Make environmental analysis available to the public before
decisions are finalized though various means including posting the
analyses on the FSA Web site; and
(4) Ensure that, if an FSA action represents one of several phases
of a larger proposal, the entire proposal is the subject of an
environmental review independent of the phases of funding. If the FSA
action is one segment of a
[[Page 52250]]
larger action funded by private parties or other governmental agencies,
the entire action will be used in determining the appropriate level of
FSA environmental review.
(b) A proposal that consists of more than one categorically
excluded action may be categorically excluded only if all components of
the action are eligible for a single categorical exclusion.
Sec. 799.3 Applicability.
(a) Except as provided for in paragraph (b) of this section, this
part applies to:
(1) The development or revision of FSA rules, regulations, plans,
policies, or procedures;
(2) New or continuing FSA actions and programs, including Commodity
Credit Corporation (CCC) programs, Farm Loan Programs, and Farm
Programs; and
(3) FSA legislative proposals, not including appropriations
requests, developed by FSA or with significant FSA cooperation and
support.
(b) This part does not apply to FSA programs specifically exempted
from environmental review by the authorizing legislation for those
programs.
Sec. 799.4 Abbreviations and definitions.
(a) The following abbreviations apply to this part:
CAFO Concentrated Animal Feeding Operation.
CCC Commodity Credit Corporation.
CEQ Council on Environmental Quality.
EA Environmental Assessment.
EIS Environmental Impact Statement.
FONSI Finding of No Significant Impact.
FPO Federal Preservation Officer.
FSA Farm Service Agency.
MOU Memorandum of Understanding.
NECM National Environmental Compliance Manager.
NEPA National Environmental Policy Act.
NHPA National Historic Preservation Act.
NOA Notice of Availability.
NOI Notice of Intent.
PEA Programmatic Environmental Assessment.
PEIS Programmatic Environmental Impact Statement.
RAO Responsible Approving Official.
ROD Record of Decision.
SEC State Environmental Coordinator.
SED State Executive Director for FSA.
SEIS Supplemental Environmental Impact Statement.
SHPO State Historic Preservation Officer.
THPO Tribal Historic Preservation Officer.
USDA United States Department of Agriculture.
(b) The definitions in 40 CFR part 1508 apply and are supplemented
by parts 718 and 1400 of this title, and in the event of a conflict
with the definitions in this section will be controlling. In addition,
the following definitions apply to this part:
Application is the formal process of seeking FSA assistance.
Construction includes building, rehabilitation, modification,
repair, and demolition of facilities, and earthmoving actions.
Consultation is the process of seeking, discussing, and considering
the views of other participants in the environmental review process and
seeking agreement where feasible.
Environmental screening worksheet is the FSA screening procedure
used to evaluate if a proposed action that can be categorically
excluded involves extraordinary circumstances that could produce
potential environmental impacts, and to evaluate the appropriate level
and extent of review and analysis in an EA or EIS when a CatEx is not
available.
Financial assistance is any form of loan, loan guarantee, grant,
guaranty, insurance, payment, rebate, subsidy, or any other form of
direct or indirect Federal monetary assistance.
Floodplains are the lowland and relatively flat areas adjoining
inland and coastal waters, including flood-prone areas of offshore
islands, including, at a minimum, those that are subject to a 1-percent
or greater chance of flooding in any given year.
Historic property means any prehistoric or historic district, site,
building, structure, or object included in, or eligible for inclusion
in, the National Register of Historic Places maintained by the
Secretary of the Interior as defined in 36 CFR 800.16.
Memorandum of Agreement is a document that records the terms and
conditions agreed upon to resolve the potential effects of a Federal
agency action or program. Often used interchangeably with Memorandum of
Understanding.
Programmatic Environmental Assessment (PEA) is an assessment
prepared when the significance of impacts of a program are uncertain to
assist in making this determination.
Programmatic Environmental Impact Statement (PEIS) is an analysis
of the potential impacts that could be associated with various
components of a program or action that may not yet be clearly defined
or even known to determine if the program or its various components
have the potential to significantly affect the quality of the human
environment.
Program participant is any person, agency, or other entity that
applies for or receives FSA program benefits or assistance.
Protected resources are sensitive resources that are protected by
laws, regulations, or Executive Orders for which FSA actions may pose
highly uncertain and potentially significant environmental effects or
involve unique or unknown environmental risks.
State Historic Preservation Officer (SHPO) is the official
appointed or designated under the NHPA to administer a State historic
preservation program or a representative to act for the SHPO.
Tribal Historic Preservation Officer (THPO) is the Tribal official
appointed by a Tribe's chief governing authority or designated by a
Tribal ordinance or preservation program who has assumed the
responsibilities of the SHPO on Tribal lands under the NHPA.
Wetlands are areas that are inundated by surface or ground water
with a frequency sufficient to support and, under normal circumstances,
do support or would support a prevalence of vegetative or aquatic life
that requires saturated or seasonally saturated soil conditions for
growth and reproduction. Wetlands generally include swamps, marshes,
bogs, and similar areas, such as sloughs, potholes, wet meadows, river
overflows, mudflats, and natural ponds.
Subpart B--FSA and Program Participant Responsibilities
Sec. 799.5 National office environmental responsibilities.
(a) The FSA Administrator or designee:
(1) Is the Responsible Federal Officer (RFO) for FSA compliance
with applicable environmental laws, regulations, and Executive Orders,
including NEPA;
(2) Will ensure responsibilities for complying with NEPA are
adequately delegated to FSA personnel within their areas of
responsibility at the Federal, State, and county levels;
(3) Will appoint a National Environmental Compliance Manager
(NECM), as required by 40 CFR 1507.2(a), who reports directly to the
FSA Administrator; and
(4) Will appoint a qualified Federal Preservation Officer (FPO), as
required by Executive Order 13287 ``Preserve America'' section 3(e) and
by section 110 of NHPA (16 U.S.C. 470h-2(a)). This individual must meet
the National
[[Page 52251]]
Park Service professional qualification standards requirements
referenced in 36 CFR part 61 and will report directly to the NECM.
(b) The NECM or designee coordinates FSA environmental policies and
reviews under this part on a national basis and is responsible for:
(1) Ensuring FSA legislative proposals and multistate and national
programs are in compliance with NEPA and other applicable environmental
and cultural resource laws, regulations, and Executive Orders;
(2) Providing education and training on implementing NEPA and other
environmental requirements to appropriate FSA personnel;
(3) Serving as the principal FSA advisor to the FSA Administrator
on NEPA requirements;
(4) Representing FSA, and serving as an intra- and inter- agency
liaison, on NEPA-related matters on a national basis;
(5) Maintaining a record of FSA environmental actions; and
(6) Ensuring State and county office compliance with NEPA and other
applicable environmental laws, regulations, and Executive Orders.
(c) The FPO or designee coordinates NHPA compliance under this part
and is responsible for:
(1) Serving as the principal FSA advisor to the NECM on NHPA
requirements;
(2) Representing FSA, and serving as FSA intra- and inter- agency
liaison, on all NHPA-related matters on a national basis;
(3) Maintaining current FSA program guidance on NHPA requirements;
(4) Maintaining a record of FSA environmental actions related to
the NHPA; and
(5) Ensuring State and county office compliance with the NHPA.
Sec. 799.6 FSA State office environmental responsibilities.
(a) FSA State Executive Directors (SEDs) or designees are the
responsible approving officials (RAOs) in their respective States and
are responsible for:
(1) Ensuring FSA actions within their State comply with applicable
environmental laws, regulations, and Executive Orders, including NEPA;
and
(2) Appointing one or more State Environmental Coordinators (SECs).
(b) An SED will not appoint more than one SEC for Farm Programs and
one SEC for Farm Loan Programs in a State unless approved in writing by
the NECM.
(c) SECs or designees are responsible for:
(1) Serving as the environmental compliance coordinators on all
environmental-related matters within their respective State;
(2) Advising SEDs on environmental issues;
(3) Providing training, in coordination with the NECM, on NEPA and
other environmental compliance requirements to appropriate FSA State
and county office personnel;
(4) Providing technical assistance on environmental-related matters
on an action-by-action basis to State and county office personnel, as
needed;
(5) Developing controls for avoiding or mitigating adverse
environmental impacts and monitoring the implementation of those
controls;
(6) Reviewing FSA actions that are not categorically excluded from
NEPA and that require State office approval or clearance, and making
appropriate recommendations to the approving official;
(7) Providing assistance to resolve post approval environmental
issues at the State office level;
(8) Maintaining decision records for State office environmental
compliance matters;
(9) Monitoring their respective State's compliance with
environmental laws, regulations, and Executive Orders;
(10) Acting as a liaison on FSA State office environmental
compliance matters with the public and other Federal, State, and Tribal
governments;
(11) Representing the SED on environmental issues as requested;
(12) Delegating duties under this section with the approval of both
the SED and NECM; and
(13) Other NEPA related duties as assigned.
(d) County Executive Directors, District Directors, and Farm Loan
Programs loan approval officers or designees are responsible for
compliance with this part within their geographical areas.
Sec. 799.7 FSA program participant responsibilities.
(a) Potential FSA program participants seeking FSA assistance must
do all of the following, unless the action is categorically excluded as
specified in Sec. Sec. 799.31 or 799.32:
(1) Consult with FSA early in the application process about
potential environmental concerns associated with program participation.
(2) Submit applications for all Federal, regional, State, and local
approvals and permits early in the planning process.
(3) Coordinate the submission of applications to FSA and other
agencies (for example, if a conservation plan is required the
application is also submitted to USDA's Natural Resources Conservation
Service).
(4) Work with other appropriate Federal, State, and Tribal
governments to ensure all environmental factors are identified and
impacts addressed and, to the extent possible, mitigated consistent
with how mitigation is defined in 40 CFR 1508.20.
(5) Inform FSA of other Federal, State, and Tribal government
environmental reviews that have previously been completed or required
of the program participant.
(6) Provide FSA with a list of all parties affected by or
interested in the proposed action.
(b) When FSA receives an application for assistance or notification
that an application will be filed, FSA will contact the potential
program participant about the environmental information the program
participant must provide as part of the application process. This
required information may include:
(1) Design specifications;
(2) Topographical, aerial, and location maps;
(3) Surveys and assessments necessary for determining the impact on
environmentally sensitive resources listed in Sec. 799.33(c);
(4) Nutrient management plans; and
(5) Applications and permits for all Federal, regional, State and
local approvals including construction permits, storm water run-off and
operational permits, and engineering plans.
(c) FSA will prepare and make available general guidelines for
program participants that describe the scope and level of environmental
information required for evaluating proposed actions and make those
available on the FSA Web site at http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep.
Sec. 799.8 Significant environmental effect.
In determining whether a proposed action will have a significant
effect on the quality of the human environment, FSA will consider the
action's potential effects in the context of society as a whole, the
affected region and interests, and the locality, and the intensity of
the potential impact as specified in 40 CFR 1508.27.
Sec. 799.9 Environmental review documents.
(a) FSA may prepare the following documents during the
environmental review process:
(1) Environmental screening worksheet;
[[Page 52252]]
(2) Programmatic Environmental Assessment (PEA);
(3) Environmental Assessment (EA);
(4) Supplemental Environmental Assessment;
(4) Programmatic Environmental Impact Statement (PEIS);
(5) Environmental Impact Statement (EIS);
(6) Supplemental Environmental Impact Statement (SEIS);
(7) Finding of No Significant Impact (FONSI);
(8) Record of Decision (ROD);
(9) Notice of Intent (NOI) to prepare any type of EA or EIS;
(10) Notice of Availability (NOA) of environmental documents for
public review or comment;
(11) Notice of public scoping meetings;
(12) Other notices, including those required under Executive Order
11988, ``Floodplain Management,'' and Executive Order 11990,
``Protection of Wetlands;''
(13) Memorandums of Agreement or Understanding (MOA or MOU), such
as those for mitigation of adverse effects on historic properties as
specified in 36 CFR part 800, ``Protection of Historic Properties;''
and
(14) Environmental studies, as indicated and appropriate.
(b) [Reserved]
Sec. 799.10 Administrative records.
(a) FSA will maintain an administrative record of documents and
materials FSA created or considered during its NEPA decision making
process for a proposed action and referenced as such in the NEPA
documentation, which can include any or all the following:
(1) All NEPA environmental review documents listed in Sec. 799.9,
as applicable;
(2) Technical information, sampling results, survey information,
engineering reports, and studies, including environmental impact
studies and assessments;
(3) Policies, guidelines, directives, and manuals;
(4) Internal memorandums or informational papers;
(5) Contracts or agreements;
(6) Notes of telephone conversations and meetings, unless they are
personal notes;
(7) Meeting minutes;
(8) Correspondence with agencies and stakeholders;
(9) Communications to and from the public;
(10) Documents and materials that contain any information that
supports or conflicts with the FSA decision;
(11) Maps, drawings, charts, and displays; and
(12) All public comments received during the NEPA comment periods.
(b) The administrative record may be used, among other purposes, to
facilitate better decision making.
Sec. 799.11 Actions during NEPA reviews.
(a) Except as specified in paragraphs (b) and (c) of this section,
FSA or a program participant must not take any action, implement any
component of an action, or make any final decision during FSA's NEPA
review process that could have an adverse environmental impact or limit
the range of alternatives until FSA:
(1) Determines that the proposed action is categorically excluded
under NEPA under subpart D of this part; or
(2) Issues a FONSI or ROD under subpart E or F of this part.
(b) FSA may approve interim actions related to proposed actions
provided the:
(1) Interim actions will not have an adverse environmental impact;
(2) Expenditure is necessary to maintain a schedule for the
proposed action;
(3) Interim actions and expenditures will not compromise FSA's
review and decision making process; and
(4) NEPA review has been completed for the interim action or
expenditure; or
(c) FSA and program participants may develop preliminary plans or
designs, or perform work necessary to support an application for
Federal, State, or local permits or assistance, during the NEPA review
process.
Sec. 799.12 Emergency circumstances.
(a) If emergency circumstances exist that make it necessary to take
action to mitigate harm to life, property, or important natural,
cultural, or historic resources, FSA may take an action with
significant environmental impact without complying with the
requirements of this part.
(b) If emergency circumstances exist, the NECM will consult with
CEQ as soon as feasible about alternative NEPA arrangements for
controlling the immediate impact of the emergency, as specified in 40
CFR 1506.11.
(c) If emergency circumstances exist, the FPO will follow the
emergency procedures specified in 36 CFR 800.12 regarding preservation
of historic properties, if applicable.
(d) FSA assistance provided in response to a Presidentially-
declared disaster under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as subsequently amended, is exempt from NEPA
requirements, as specified in 42 U.S.C. 5159. Under a Presidentially-
declared disaster, the following actions are exempt from NEPA and NHPA:
(1) Clearing roads and constructing temporary bridges necessary for
performing emergency tasks and essential community services;
(2) Debris removal;
(3) Demolishing unsafe structures that endanger the public or could
create a public health hazard if not demolished;
(4) Disseminating public information and assistance for health and
safety measures;
(5) Providing technical assistance to State, regional, local, or
Tribal governments on disaster management control;
(6) Reducing immediate threats to life, property, and public health
and safety; and
(7) Warning of further risks and hazards.
Sec. 799.13 FSA as lead agency.
(a) When FSA acts as the lead agency in a NEPA review as specified
in 40 CFR 1501.5, FSA will:
(1) Coordinate its review with other appropriate Federal, State,
and Tribal governments; and
(2) Request other agencies to act as cooperating agencies as
specified in 40 CFR 1501.6 and defined at 40 CFR 1508.5 as early in the
review process as possible.
(b) If FSA acts as a lead agency for a proposed action that affects
more than one State, the NECM will designate one SEC to act as RAO.
(c) If the role of lead agency is disputed, the RAO will refer the
matter to the FSA Administrator, who will attempt to resolve the matter
with the other agency. If the Federal agencies cannot agree which will
serve as the lead agency, the FSA Administrator will follow the
procedures specified in 40 CFR 1501.5(e) to request that CEQ determine
the lead agency.
Sec. 799.14 FSA as cooperating agency.
(a) FSA will act as a cooperating agency if requested by another
agency, as specified in 40 CFR 1501.6 and defined at 40 CFR 1508.5.
However, FSA may decline another agency's request if FSA determines the
proposed action does not fall within FSA's area of expertise or FSA
does not have jurisdiction by law. If FSA declines such a request to
cooperate, that will be documented in writing to the requesting agency
and a copy will be provided to CEQ.
(b) FSA may request to be designated as a cooperating agency if
another agency's proposed action falls within FSA's area of expertise.
[[Page 52253]]
Sec. 799.15 Public involvement in environmental review.
(a) FSA will involve the public in the environmental review process
as early as possible and in a manner consistent with 40 CFR 1506.6. To
determine the appropriate level of public participation, FSA will
consider:
(1) The scale of the proposed action and its probable effects;
(2) The likely level of public interest and controversy; and
(3) Advice received from knowledgeable parties and experts.
(b) Depending upon the scale of the proposed action, FSA will:
(1) Coordinate public notices and consultation with the U.S. Fish
and Wildlife Service, USDA's Natural Resources Conservation Service,
Federal Emergency Management Agency, the National Marine Fisheries
Service, the U.S. Army Corp of Engineers, and other agencies, as
appropriate, if wetlands, floodplains, or endangered species have the
potential to be impacted;
(2) Make appropriate environmental documents available to
interested parties on request;
(3) Publish a Notice of Intent (NOI) to prepare an EA or EIS as
specified in subparts E and F; and
(4) Publish a Notice of Availability (NOA) of draft and final EAs,
FONSIs, EISs, and RODs as specified in subparts E and F.
(c) If the effects of a proposed action are local in nature and the
scale of the proposed action is likely to generate interest and
controversy at the local level, in addition to the actions specified in
paragraphs (a) and (b) of this section, FSA will:
(1) Notify appropriate State, local, regional, and Tribal
governments and clearinghouses, and parties and organizations,
including the State Historic Preservation Officer (SHPO) and Tribal
Historic Preservation Officer (THPO), known to have environmental,
cultural, and economic interests in the locality affected by the
proposed action; and
(2) Publish notice of the proposed action in the local media.
(d) If the effects of a proposed action will set a precedent for
future actions with potentially widespread effects, or the proposed
action is highly controversial in nature, FSA will publish notice of
the proposed action in the regional or national media, and in the
Federal Register with a request for public comment. The public comment
period will be not less than 30 days after publication in the Federal
Register.
Sec. 799.16 Scoping.
(a) FSA will determine the appropriate scoping process for the NEPA
analysis of a proposed action based upon the nature, complexity, and
level of controversy of the proposed action.
(b) As part of its scoping process, FSA will:
(1) Invite appropriate Federal, State, and Tribal governments, and
other interested parties to participate in the process, if determined
necessary by FSA;
(2) Identify the significant issues to be analyzed;
(3) Identify and eliminate from further analysis issues that were
determined not significant or have been adequately addressed in prior
environmental reviews;
(4) Determine the roles of lead and cooperating agencies, if
appropriate;
(5) Identify any related EAs or EISs;
(6) Identify other environmental reviews and consultation
requirements, including NHPA requirements and State, local, regional,
and Tribal requirements, so they are integrated into the NEPA process;
(7) Identify the relationship between the timing of the
environmental review process and FSA's decision making process;
(8) Determine points of contact within FSA; and
(9) Establish time limits for the environmental review process.
(c) FSA may hold public meetings as part of the scoping process, if
appropriate and as time permits. The process that FSA will use to
determine if a public scoping meeting is needed, and how such meetings
will be announced, is specified in Sec. 799.17.
Sec. 799.17 Public meetings.
(a) The NECM will determine if public meetings will be held on a
proposed action to:
(1) Inform the public about the details of a proposed action and
its possible environmental effects;
(2) Gather information about the public concerns; and
(3) Resolve, address, or respond to issues raised by the public.
(b) In determining whether to hold a public meeting, FSA will
consider whether:
(1) There is substantial controversy concerning the environmental
impact of the proposed action;
(2) There is substantial interest in holding a public meeting; and
(3) Another Federal agency or Tribal government has requested a
public scoping meeting and their request is warranted.
(c) FSA will publish notice of a public meeting, including the
time, date and location of the meeting, in the local media or Federal
Register, as appropriate, at least 15 days before the first meeting for
EAs and at least 30 days for EISs. A notice of a public scoping meeting
may be included in a Notice of Intent to prepare an EIS.
(d) If a NEPA document is to be considered at a public meeting, FSA
will make the appropriate documentation available to the public at
least 15 days before the meeting.
Sec. 799.18 Overview of FSA NEPA process.
------------------------------------------------------------------------
If the proposed action: FSA:
------------------------------------------------------------------------
Is an emergency action................. Follows the procedures in Sec.
799.12.
Is exempt from section 102(2)(C) of Implements the action.
NEPA (42 U.S.C. 4332(2)(C)) by
authorizing legislation for the
program.
Is categorically excluded under Sec. Implements the action.
799.31(b) or Sec. 1b.3 of this title.
Is an action that has the potential to Completes an environmental
impact historic properties as screening worksheet to
specified in Sec. 799.34(b) and determine if there will be an
therefore requires the completion of impact on historic properties.
an environmental screening worksheet. FSA will prepare an EA or EIS,
as indicated, before
implementing the action.
Is a categorically excluded action Completes an environmental
listed in Sec. 799.32 that requires screening worksheet to
the completion of an environmental determine whether
screening worksheet. extraordinary circumstances
are present. This review
includes a determination of
whether the action will
potentially impact
environmentally sensitive
resources. If there are no
extraordinary circumstances,
FSA implements the action; if
there are extraordinary
circumstances, FSA will
prepare an EA or EIS, as
indicated, before implementing
the action.
Involves a category of actions Prepares an EA.
requiring an EA listed in Sec.
799.41.
Involves a category of actions Prepares an EIS.
requiring an EIS listed in Sec.
799.51.
------------------------------------------------------------------------
[[Page 52254]]
Subpart C--Environmental Screening Worksheet
Sec. 799.20 Purpose of environmental screening worksheet.
(a) FSA uses the environmental screening worksheet as an initial
screening tool to evaluate and document any likely environmental
impacts of a proposed action and to determine the appropriate type of
analysis required.
(b) The environmental screening worksheet is not required for
actions that are categorically excluded as specified in Sec. 799.31(b)
or Sec. 1b.3 of this title, or for actions where FSA determines at an
early stage that there is clearly the potential for environmental
impact and therefore an EA or EIS is required.
Sec. 799.21 [Reserved]
Subpart D--Categorical Exclusions
Sec. 799.30 Purpose of categorical exclusion process.
(a) FSA has determined that the categories of actions listed in
Sec. Sec. 799.31 and 799.32 do not normally individually or
cumulatively have a significant effect on the human environment and do
not threaten a violation of applicable statutory, regulatory, or permit
requirements for environment, safety, and health, including
requirements of Executive Orders and other USDA regulations in this
chapter.
(b) If a proposed action falls within one of the categories of
actions listed in Sec. Sec. 1b.3 of this title, 799.31, or 799.32, and
there are no extraordinary circumstances present as specified in Sec.
799.33, then the action is categorically excluded from the requirements
to prepare an EA or an EIS.
Sec. 799.31 Categorical exclusions not requiring an environmental
screening worksheet.
(a) Actions that fit within a category of action listed in
paragraph (b) of this section may be categorically excluded if there
are no extraordinary circumstances as specified in Sec. 799.33. Unless
otherwise noted in paragraph (b) of this section, the proposed actions
listed in paragraph (b) of this section also do not have the potential
to cause effects to historic properties, and will therefore not be
reviewed for compliance with section 106 of NHPA (16 U.S.C. 470f) or
its implementing regulations, 36 CFR part 800.
(b) The following actions are categorically excluded without the
need to complete an environmental screening worksheet. However, some
actions may require other Federal consultation as indicated. These
actions are grouped into broader categories of similar types of
actions. Based on FSA's previous experience implementing these actions
and similar actions through the completion of EAs, these actions are
categorically excluded. Those actions that are similar in nature and
intent to those listed below and not listed in Sec. Sec. 799.32 or
799.33, will be considered a categorical exclusion in this category:
(1) Loan actions. The following list includes examples of
categorical exclusions for certain types of FSA loans and actions
related to FSA loans. Certain types of FSA loans and loan actions
typically involve limited or no ground disturbance. Therefore, the
following list includes those types of FSA loans and loan actions that
are categorically excluded.
(i) Closing cost payments;
(ii) Commodity loans;
(iii) Debt set asides;
(iv) Deferral of loan payments;
(v) Income producing projects associated with youth loans;
(vi) Loan consolidation;
(vii) Loans for annual operating expenses, except livestock;
(viii) Loans for equipment;
(ix) Loans for family living expenses;
(x) Loan subordination, with no or minimal construction or change
in operations (may require NHPA consultation under section 106 of NHPA
(16 U.S.C. 470f));
(xi) Loans to pay for labor costs;
(xii) Loan (debt) transfers and assumptions with no new ground
disturbance;
(xiii) Partial or complete release of loan collateral;
(xiv) Re-amortization of loans;
(xv) Refinancing of debt;
(xvi) Rescheduling loans;
(xvii) Restructuring of loans; and
(xviii) Writing down of debt;
(2) Repair, improvement, or minor modification actions. The
following list includes examples of categorical exclusions for proposed
repair, improvement, or minor modification actions. Each of the
following actions typically has no significant impact on the quality of
the human environment based on previous FSA analysis and FSA compliance
experience for actions in this category. These actions typically
involve limited or no ground disturbance.
(i) Fence repair; and
(ii) Improvement or repair of farm-related structures under 50
years of age (if property is older than 50 years NHPA consultation will
be required under section 106 of NHPA (16 U.S.C. 470f);
(3) Administrative actions. The following list includes examples of
categorically excluded administrative actions. These actions involve no
ground disturbance and are considered administrative or operational in
nature.
(i) Issuing technical corrections to regulations, handbooks, and
internal guidance, as well as amendments to them;
(ii) Minor amendments or revisions to previously approved projects
provided such actions do not alter the purpose, operation, location, or
design of the project as originally approved;
(iii) Personnel actions, reduction-in-force, or employee transfers;
and
(iv) Procurement actions for goods and services conducted in
accordance with Executive Orders;
(4) Planting actions. The following list includes examples of
categorical exclusions for planting actions that will occur on land
that has been tilled in the past and do not exceed the depth of
previous tillage.
(i) Bareland planting or planting without site preparation;
(ii) Bedding site establishment for wildlife;
(iii) Chiseling and subsoiling;
(iv) Clean tilling firebreaks;
(v) Conservation crop rotation;
(vi) Contour farming;
(vii) Contour grass strip establishment;
(viii) Cover crop and green manure crop planting;
(ix) Critical area planting;
(x) Firebreak installation;
(xi) Grass, forbs, or legume planting;
(xii) Heavy use area protection;
(xiii) Installation and maintenance of field borders or field
strips;
(xiv) Pasture, range, and hayland planting;
(xv) Seeding of shrubs;
(xvi) Seedling shrub planting;
(xvii) Site preparation;
(xviii) Strip cropping;
(xix) Wildlife food plot planting; and
(xx) Windbreak and shelterbelt establishment;
(5) Management actions. The following list includes examples of
land and resource management actions.
(i) Forage harvest management;
(ii) Integrated crop management;
(iii) Mulching, including plastic mulch;
(iv) Netting for hard woods;
(v) Nutrient management;
(vi) Obstruction removal;
(vii) Pest management;
(viii) Plant grafting;
(ix) Plugging artesian wells;
(x) Residue management including seasonal management;
(xi) Roof runoff management (if property is older than 50 years
NHPA consultation will be required under section 106 of NHPA (16 U.S.C.
470f);
[[Page 52255]]
(xii) Thinning and pruning of plants;
(xiii) Toxic salt reduction; and
(xiv) Water spreading;
(6) Other FSA actions. The following list includes examples of
categorical exclusions for other FSA actions.
(i) Conservation easement purchases with no construction planned;
(ii) Emergency program actions (including Emergency Conservation
Program and Emergency Forest Restoration Program) that have a cost
share of less than $5,000;
(iii) Financial assistance to supplement income, manage the supply
of agricultural commodities, influence the cost and supply of such
commodities or programs of a similar nature or intent;
(iv) Individual farm participation in FSA programs where no ground
disturbance or change in land use occurs as a result of the action or
participation;
(v) Inventory property disposal or lease with protective easements
or covenants;
(vi) Issuance of grants under the Voluntary Public Access and
Habitat Incentive Program;
(vii) Safety net programs administered by FSA;
(viii) Site characterization, environmental testing, and monitoring
where no significant alteration of existing ambient conditions would
occur, including air, surface water, groundwater, wind, soil, or rock
core sampling; installation of monitoring wells; installation of small
scale air, water, or weather monitoring equipment;
(ix) Stand analysis for forest management planning; and
(x) Tree protection including plastic tubes.
Sec. 799.32 Categorical exclusions requiring an environmental
screening worksheet.
(a) The actions listed in paragraph (b) of this section are
eligible for categorical exclusion after completion of an environmental
screening worksheet to document that an action does not involve any of
the extraordinary circumstances specified in Sec. 799.33. Unless
otherwise noted in paragraph (b) of this section, the actions listed in
paragraph (b) also do not have the potential to cause effects to
historic properties and will therefore not be reviewed for compliance
with section 106 of NHPA or its implementing regulations, 36 CFR part
800.
(b) The following actions are eligible for categorical exclusion
with completion of an environmental screening worksheet. These actions
are grouped into broader categories of similar types of actions:
(1) Loan actions. The following list includes examples of types of
loans and loan actions for which an environmental screening worksheet
will be required.
(i) Farm storage and drying facility loans for added capacity;
(ii) Loans for livestock purchases;
(iii) Release of loan for forestry improvements;
(iv) Reorganizing farm operations (if new construction is planned
or buildings over 50 years will be impacted, NHPA consultation will be
required under section 106 of NHPA (16 U.S.C. 470f)); and
(v) Replacement building loans (if property is older than 50 years
NHPA consultation will be required under section 106 of NHPA (16 U.S.C.
470f));
(2) Limited construction or repair actions. The following list
includes examples of limited construction or repair actions in areas of
previous disturbance and actions that will not impact soil below
previous level of disturbance.
(i) Construction in previously disturbed areas;
(ii) Construction involving an addition (if property is older than
50 years NHPA consultation will be required under section 106 of NHPA
(16 U.S.C. 470f));
(iii) Drain tile replacement;
(iv) Erosion control measures;
(v) Grading, leveling, shaping, and filling;
(vi) Grassed waterway establishment;
(vii) Hillside ditches; (may require NHPA consultation under
section 106 of NHPA (16 U.S.C. 470f));
(viii) Land-clearing operations of no more than 15 acres, provided
any amount of land involved in tree harvesting is to be conducted on a
sustainable basis and according to a Federal, State, Tribal, or other
governmental unit approved forestry management plan (may require NHPA
consultation under section 106 of NHPA (16 U.S.C. 470f));
(ix) Permanent establishment of a water source for wildlife;
(x) Restoring and replacing property (if property is older than 50
years NHPA consultation will be required under section 106 of NHPA (16
U.S.C. 470f));
(xi) Soil and water development;
(xii) Spring development;
(xiii) Trough or tank installation; and
(iiv) Water harvesting catchment; and
(3) Other FSA actions. The following list includes examples of
other FSA actions for which an environmental screening worksheet will
be required.
(i) Fence installation and replacement;
(ii) Fish stream improvement;
(iii) Grazing land mechanical treatment; (if disturbance will be
below plow zone NHPA consultation will be required under section 106 of
NHPA (16 U.S.C. 470f)); and
(iv) Herbicide, insecticide, fungicide, or mineral application;
(v) Inventory property disposal or lease without protective
easements or covenants (this action has the potential to cause effects
to historic properties and therefore requires analysis under section
106 of NHPA (16 U.S.C. 470f)).
Sec. 799.33 Extraordinary circumstances.
(a) Extraordinary circumstances are unique situations presented by
specific proposals. Extraordinary circumstances include, but are not
limited to:
(1) Scientific controversy about environmental effects of the
proposal; and
(2) Uncertain effects or effects involving unique or unknown risks.
(b) A categorical exclusion is possible in situations specified in
paragraph (a) of this section only if the proposal:
(1) Is also not ``connected'' (as specified in 40 CFR
1508.25(a)(1)) to other actions with potentially significant impacts,
(2) Is not related to other proposed actions with cumulatively
significant impacts (40 CFR 1508.25(a)(2)), and
(3) Complies with 40 CFR 1506.1, ``Limitations on actions during
NEPA process.''
(c) FSA will use an environmental screening worksheet (ESW) to
review proposed actions that are eligible for categorical exclusion to
determine if extraordinary circumstances exist that could impact
environmentally sensitive resources. If extraordinary circumstances
exist, then an EA or EIS will be prepared as specified in this part.
(d) Environmentally sensitive resources include, but are not
limited to:
(1) Property (for example, sites, buildings, structures, and
objects) of historic, archeological, or architectural significance
designated by Federal, Tribal, State, or local governments or property
eligible for listing on the National Register of Historic Places;
(2) Federally-listed threatened or endangered species or their
habitat (including critical habitat), Federally-proposed or candidate
species or their habitat, or State-listed endangered or threatened
species or their habitat;
(3) Important and prime agricultural, forest, and range lands, as
specified in part 657 of this chapter and in USDA Departmental
Regulation 9500-3;
(4) Wetlands regulated under the Clean Water Act (33 U.S.C. 1344),
highly erodible land, and floodplains;
(5) Areas having a special designation, such as Federally- and
State-designated
[[Page 52256]]
wilderness areas, national parks, national natural landmarks, wild and
scenic rivers, State and Federal wildlife refuges, and marine
sanctuaries; and
(6) Special sources of water such as sole-source aquifers, wellhead
protection areas, and other water sources that are vital in a region.
Sec. 799.34 Review for extraordinary circumstances.
(a) FSA will complete an environmental screening worksheet for
proposed actions that fall within the list of categorical exclusions
specified in Sec. 799.32 to determine whether extraordinary
circumstances under Sec. 799.33 are present.
(b) FSA or an authorized technical representative will also
complete an ESW to determine whether to prepare an EA or EIS for the
following actions, unless technical assistance is provided by another
Federal agency that uses its own environmental screening documentation
and provide the information called for in an ESW. These actions have
the potential to cause effects to historic properties, and therefore
analysis is required for compliance under section 106 of the NHPA (16
U.S.C. 470f). FSA will comply with 36 CFR part 800, ``Protection of
Historic Properties,'' when reviewing the environmental impact of these
actions. If an authorized technical representative from another Federal
agency assists with compliance with 36 CFR part 800, FSA will remain
responsible for any consultation with SHPO, THPO, or Tribal
governments. These actions are grouped into broader categories of
similar types of actions. All of the categories include, but are not
limited to, the specific actions listed in this section; other actions
that are similar in nature will also require review for extraordinary
circumstances that would require either an EA or EIS:
(1) Loan actions. Although most loan actions are addressed in
Sec. Sec. 799.31 and 799.32, the following actions have the potential
for significant impacts on resources. Additional environmental review
will therefore be necessary. An environmental screening worksheet must
be completed to determine if an EA or EIS should be completed.
(i) Loans and loan subordination with construction, demolition, or
ground disturbance planned;
(ii) Real estate purchase loans with new ground disturbance
planned; and
(iii) Term operating loans with construction or demolition planned;
(2) Construction with ground disturbance actions. The following
list includes examples of construction actions for which an
environmental screening worksheet will be required to determine if an
EA or EIS will be needed. The ground disturbance of the construction
actions in this category have the potential for impacts and therefore
additional environmental review is required.
(i) Animal trails and walkways;
(ii) Bridges;
(iii) Chiseling and subsoiling in areas not previously tilled;
(iv) Construction of a new farm storage facility;
(v) Dams;
(vi) Dikes and levees;
(vii) Diversions;
(viii) Drop spillways;
(ix) Dugouts;
(x) Excavation;
(xi) Grade stabilization structures;
(xii) Grading, leveling, shaping and filling in areas not
previously disturbed;
(xiii) Installation of structures designed to regulate water flow
such as pipes, flashboard risers, gates, chutes, and outlets;
(xiv) Irrigation systems;
(xv) Land smoothing;
(xvi) Line waterways or outlets;
(xvii) Lining;
(xviii) Livestock crossing facilities;
(xix) Pesticide containment facility;
(xx) Pipe drop;
(xxi) Pipeline for watering facility;
(xxii) Ponds, including sealing and lining;
(xxiii) Precision land farming with ground disturbance;
(xxiv) Riparian buffer establishment;
(xxv) Roads, including access roads;
(xxvi) Rock barriers;
(xxvii) Rock filled infiltration trenches;
(xxvii) Sediment basin;
(xxix) Sediment structures;
(xxx) Site preparation for planting or seeding in areas not
previously tilled;
(xxxi) Soil and water conservation structures;
(xxxii) Stream bank and shoreline protection;
(xxxiii) Structures for water control;
(xxxiv) Subsurface drains;
(xxxv) Surface roughening;
(xxxvi) Terracing;
(xxxvii) Underground outlets;
(xxxviii) Watering tank or trough installation, if in areas not
previously disturbed;
(xxxix) Wells; and
(xl) Wetland restoration; and
(3) Management and planting type actions. The following list
includes examples of resource management and planting actions for which
an environmental screening worksheet will be required to determine if
an EA or EIS will be needed. The actions in this category have been
found to have the potential for impacts and therefore additional
environmental review is required.
(i) Establishing or maintaining wildlife plots in areas not
previously tilled or disturbed;
(ii) Prescribed burning;
(iii) Tree planting when trees have root balls of one gallon
container size or larger; and
(iv) Wildlife upland habitat management.
(c) If technical assistance is provided by another Federal agency,
FSA will ensure that the environmental documentation provided is
commensurate to or exceeds the requirements of the FSA environmental
screening worksheet.
Sec. 799.35 Establishing and revising categorical exclusions.
(a) As part of the process to establish a new categorical
exclusion, FSA will consider all relevant information, including the
following:
(1) Completed FSA NEPA documents;
(2) Other Federal agency NEPA documents on actions that could be
considered similar to the categorical exclusion being considered;
(3) Results of impact demonstration or pilot projects;
(4) Information from professional staff, expert opinion, and
scientific analyses; and
(5) The experiences of FSA, private, and public parties that have
taken similar actions.
(b) FSA will consult with CEQ and appropriate Federal agencies
while developing or modifying a categorical exclusion.
(c) Before establishing a new final categorical exclusion, FSA
will:
(1) Publish a notice of the proposed categorical exclusion in the
Federal Register for public review and comment for at least 30 calendar
days;
(2) Consider the public comments in developing the final
categorical exclusion;
(3) Consult with CEQ on the final categorical exclusion and obtain
a written statement from CEQ that the final categorical exclusion was
developed in conformity with NEPA requirements and CEQ regulations;
(4) Publish the final categorical exclusion in the Federal
Register; and
(5) Post the final categorical exclusion on the FSA Web site.
(d) FSA will maintain an administrative record that includes the
supporting information and findings used in establishing a categorical
exclusion.
(e) FSA will periodically review its categorical exclusions at
least once
[[Page 52257]]
every seven years to identify and revise exclusions that no longer
effectively reflect environmental circumstances or current FSA program
scope.
(f) FSA will use the same process specified in this section and the
results of its periodic reviews to revise a categorical exclusion or
remove a categorical exclusion.
Subpart E--Environmental Assessments
Sec. 799.40 Purpose of an EA.
(a) FSA prepares an EA to determine whether a proposed action would
significantly affect the environment and to consider the potential
impact of reasonable alternatives and the potential mitigation measures
to the alternatives and proposed action.
(b) FSA may determine that a proposed action will significantly
affect the environment or is environmentally controversial without
first preparing an EA. In that case, FSA will prepare an EIS as
specified in subpart F of this part.
(c) FSA will prepare a programmatic EA to determine if proposed
actions that are broad in scope or similar in nature have cumulative
significant environmental impacts, although the impacts of the actions
may be individually insignificant.
(d) The result of the EA process will be either a FONSI or a
determination that an EIS is required.
Sec. 799.41 When an EA is required.
(a) Actions that require the preparation of an EA include the
following:
(1) Conservation Reserve Enhancement Program (CREP) agreements;
(2) Development of farm ponds or lakes greater than or equal to 20
acres;
(3) Restoration of wetlands greater than or equal to 100 acres
aggregate;
(4) Installation or enlargement of irrigation facilities, including
storage reservoirs, diversions, dams, wells, pumping plants, canals,
pipelines, and sprinklers designed to irrigate greater than 320 acres
aggregate;
(5) Land clearing operations involving greater than or equal to 40
acres aggregate;
(6) Clear cutting operations for timber involving greater than or
equal to 100 acres aggregate;
(7) Construction or enlargement of aquaculture facilities when the
capacity is either 20,000 pounds for cold water flow through systems or
100,000 pounds for warm water confined systems;
(8) Construction of commercial facilities or structures;
(9) Construction or expansion of a CAFO, regardless of the type of
manure handling system or water system;
(10) Refinancing of a newly constructed CAFO, including medium
CAFOs, as defined in 40 CFR 122.23, or aquaculture facilities that have
been in operation for 12 months or less;
(11) Issuance of FSA regulations, Federal Register notices, or
amendments to existing programs that authorize FSA or CCC funding for
actions that have the potential to adversely affect the human
environment;
(12) Newly authorized programs that involve actions specified in
Sec. 799.34;
(13) Any FSA action that after completion of the environmental
screening worksheet for extraordinary circumstances specified in Sec.
799.33(b) has been determined to have a potentially significant impact
on the quality of the human environment; and
(14) Any action that will involve the planting of a potential
invasive species, unless exempted by Federal law.
(b) [Reserved]
Sec. 799.42 Contents of an EA.
(a) The EA must include at least the following:
(1) FSA cover sheet;
(2) Executive summary;
(3) Table of contents;
(4) List of acronyms;
(5) A discussion of the purpose of and need for the proposed
action;
(6) A discussion of alternatives, if the proposal involves
unresolved conflicts concerning the uses of available resources;
(7) A discussion of environmental impacts of the proposed action,
with reference to the significance of the impact as specified in Sec.
799.8 and 40 CFR 1508.27;
(8) Likelihood of any significant impact and potential mitigation
measures to include those FSA will undertake to support a FONSI;
(9) A list of preparers and contributors;
(10) A list of agencies and persons consulted;
(11) References; and
(12) Appendixes, if appropriate.
(b) FSA will prepare a Supplemental EA, and place the supplements
in the administrative record of the original EA, if:
(1) Substantial changes occur in the proposed action that are
relevant to environmental concerns previously presented, or
(2) Significant new circumstances or information arise that are
relevant to environmental concerns and to the proposed action or its
impacts.
(c) FSA may request that a program participant prepare or provide
information for FSA to use in the EA and may use the program
participant's information in the EA or Supplemental EA provided that
FSA also:
(1) Independently evaluates the environmental issues; and
(2) Takes responsibility for the scope and content of the EA.
Sec. 799.43 Adoption of an EA prepared by another entity.
(a) FSA may adopt an EA prepared by another Federal agency, State,
or Tribal government if the EA meets the requirements of this subpart.
(b) If FSA adopts another agency's EA and issues a FONSI, FSA will
follow the procedures specified in Sec. 799.44.
Sec. 799.44 Finding of No Significant Impact (FONSI).
(a) If after completing the EA, FSA determines that the proposed
action will not have a significant effect on the quality of the human
environment, FSA will issue a FONSI.
(b) The FONSI will include the reasons FSA determined that the
proposed action will have no significant environmental impacts.
(c) If the decision to issue the FONSI is conditioned upon the
implementation of measures (mitigation actions) to ensure that impacts
will be held to a nonsignificant level, the FONSI must include an
enforceable commitment to implement such measures on the part of FSA,
and any applicant or other party responsible for implementing the
measures will be responsible for the commitments outlined in the FONSI.
(d) FSA will make the FONSI available to the public prior to making
a decision as specified in 40 CFR 1506.6, including publishing a notice
of availability of the final EA and FONSI in the local media or Federal
Register as appropriate.
(e) FSA will make the final EA and FONSI available for public
review for at least 15 days before taking any final agency action. FSA
will determine whether an EIS is required based in part on the comments
received during such review.
Subpart E--Environmental Impact Statements
Sec. 799.50 Purpose of an EIS.
(a) FSA will prepare an EIS for proposed actions that are expected
to have a significant effect on the human environment. The purpose of
the EIS is to ensure that all significant environmental impacts and
reasonable alternatives are fully considered in connection with the
proposed action.
[[Page 52258]]
(b) FSA will prepare a PEIS for proposed actions that are broad in
scope or similar in nature and may cumulatively have significant
environmental impacts, although the impact of the individual actions
may be insignificant.
Sec. 799.51 When an EIS is required.
(a) The following FSA actions normally require preparation of an
EIS:
(1) Legislative proposals, not including appropriations requests,
with the potential for significant environmental impact that are
drafted and submitted to Congress by FSA;
(2) Broad Federal assistance programs administered by FSA involving
significant financial assistance or payments to program participants
that may have significant cumulative impacts on the human environment
or national economy; and
(3) Ongoing programs that have been found through previous
environmental analyses to have major environmental concerns.
(b) [Reserved]
Sec. 799.52 Notice of intent to prepare an EIS.
(a) FSA will publish a Notice of Intent to prepare an EIS in the
Federal Register and, depending on the scope of the proposed action,
may publish a notice in other media.
(b) The notice will include the following:
(1) A description of the proposed action and possible alternatives;
(2) A description of FSA's proposed scoping process, including
information about any public meetings; and
(3) The name of an FSA point of contact who can receive input and
answer questions about the proposed action and the preparation of the
EIS.
Sec. 799.53 Contents of an EIS.
(a) FSA will prepare the EIS as specified in 40 CFR part 1502.
(b) The EIS must include at least the following:
(1) An FSA cover sheet;
(2) An executive summary explaining the major conclusions, areas of
controversy, and the issues to be resolved;
(3) A table of contents;
(4) List of acronyms and abbreviations;
(5) A brief statement explaining the purpose and need of the
proposed action;
(6) A detailed discussion of the environmental impacts of the
proposed action and reasonable alternatives to the proposed action, a
description and brief analysis of the alternatives considered but
eliminated from further consideration, the no-action alternative, FSA's
preferred alternative(s), and discussion of appropriate mitigation
measures;
(7) A discussion of the affected environment;
(8) A detailed discussion of:
(i) The direct and indirect environmental consequences, including
any cumulative impacts, of the proposed action and of the alternatives;
(ii) Any unavoidable adverse environmental effects;
(iii) The relationship between local short-term uses of the
environment and long-term ecosystem productivity;
(iv) Any irreversible and irretrievable commitments of resources;
(vi) Possible conflicts with the objectives of Federal, regional,
State, local, regional, and Tribal land use plans, policies, and
controls for the area concerned;
(vii) Energy and natural depletable resource requirements, and
conservation potential of the alternatives and mitigation measures; and
(viii) Urban quality, historic, and cultural resources and the
design of the built environment, including the reuse and conservation
potential of the alternatives and mitigation measures;
(9) In the draft EIS, a list of all Federal permits, licenses, and
other entitlements that must be obtained for implementation of the
proposal;
(10) A list of preparers;
(11) Persons and agencies contacted;
(12) References, if appropriate;
(13) Glossary, if appropriate;
(14) Index;
(15) Appendixes, if appropriate;
(16) A list of agencies, organizations, and persons to whom copies
of the EIS are sent; and
(17) In the final EIS, a response to substantive comments on
environmental issues.
(c) FSA may have a contractor prepare an EIS as specified in 40 CFR
1506.5(b). If FSA has a contractor prepare an EIS, FSA will:
(1) Require the contractor to sign a disclosure statement
specifying it has no financial or other interest in the outcome of the
action, which will be included in the Administrative Record; and
(2) Furnish guidance and participate in the preparation of the EIS,
and independently evaluate the EIS before its approval.
Sec. 799.54 Draft EIS.
(a) FSA will prepare the draft EIS addressing the information
specified in Sec. 799.53.
(b) FSA will circulate the draft EIS as specified in 40 CFR
1502.19.
(c) FSA will request comments on the draft EIS from:
(1) Any Federal agency that has jurisdiction by law or has special
expertise with respect to the environmental impact involved or is
authorized to develop and enforce environmental standards;
(2) Appropriate State and local agencies authorized to develop and
enforce environmental standards relevant to the scope of the EIS;
(3) Tribal governments that have interests that could be impacted;
(4) Any agency that requested to receive statements on the type of
action proposed;
(5) The public, particularly persons or organizations who may be
interested or affected;
(6) If the action affects historic properties, the appropriate
SHPO, THPO, and the Advisory Council on Historic Preservation; and
(7) An applicant or program participant, if applicable.
(d) FSA will file the draft EIS with the Environmental Protection
Agency as specified in 40 CFR 1506.9 and in accordance with the EPA
filing requirements (available at http://www.epa.gov/compliance/nepa/submiteis/index.html).
(e) The draft EIS will include a cover sheet with the information
specified in 40 CFR 1502.11.
(f) FSA will provide for a minimum 45-day comment period calculated
from the date the Environmental Protection Agency publishes the NOA of
the draft EIS.
Sec. 799.55 Final EIS.
(a) FSA will prepare the final EIS addressing the information
specified in Sec. 799.53.
(b) FSA will evaluate the comments received on the draft EIS and
respond in the final EIS as specified in 40 CFR 1503.4. FSA will
discuss in the final EIS any issues raised by commenters that were not
discussed in the draft EIS and provide a response to those comments.
(c) FSA will attach substantive comments, or summaries of lengthy
comments, to the final EIS and will include all comments in the
administrative record.
(d) FSA will circulate the final EIS as specified in 40 CFR
1502.19.
(e) FSA will file the final EIS with the Environmental Protection
Agency as specified in 40 CFR 1506.9.
(f) The final EIS will include a cover sheet with the information
specified in 40 CFR 1502.11.
Sec. 799.56 Supplemental EIS.
(a) FSA will prepare supplements to a draft or final EIS if:
[[Page 52259]]
(1) Substantial changes occur in the proposed action that are
relevant to environmental concerns previously presented; or
(2) Significant new circumstances or information arise that are
relevant to environmental concerns and to the proposed action or its
impacts.
(b) The requirements of this subpart for completing the original
EIS apply to the supplemental EIS, with the exception of the scoping
process, which is optional.
Sec. 799.57 Tiering.
(a) As specified in 40 CFR 1508.28, tiering is a process of
covering general environmental review in a broad programmatic EIS,
followed by subsequent narrower scope analysis to address specific
actions, action stages, or sites. FSA will use tiering when FSA
prepares a broad programmatic EIS and subsequently prepares a site-
specific EA or PEA for a proposed action included within the program
addressed in the original, broad programmatic EIS.
(b) When FSA uses tiering, the subsequent EA or PEA will:
(1) Summarize the issues discussed in the broader statement;
(2) Incorporate by reference the discussions from the broader
statement and the conclusions carried forward into the subsequent
tiered analysis and documentation; and
(3) State where the programmatic EIS document is available.
Sec. 799.58 Adoption of an EIS prepared by another entity.
(a) FSA may elect to adopt an EIS prepared by another Federal
agency, State, or Tribal government if:
(1) The NECM determines that the EIS and the analyses and
procedures by which they were developed meet the requirements of this
part; and
(2) The agency responsible for preparing the EIS concurs.
(b) If FSA participated in the NEPA process as a cooperating
agency, FSA may adopt the lead agency's final EIS and reference it in
the FSA ROD. However, the NECM must independently review the EIS and
determine that FSA requirements in this part have been satisfied.
(c) If FSA was not a cooperating agency but the FSA action is
substantially the same as the subject of another agency's EIS, the NECM
may adopt the EIS and recirculate it as a final EIS. However, the NECM
must independently review the EIS and determine that FSA requirements
in this part have been satisfied. The final EIS must identify the other
Federal action involved.
(d) If the FSA action is not substantially the same as the subject
of another agency's EIS, FSA may incorporate by reference the relevant
portions of the EIS into the FSA draft EIS. The draft EIS must include
the content specified in Sec. 799.53. The NECM must inform the agency
that prepared the original EIS of FSA's intent and the proposed FSA
action for which the EIS will be used.
(e) If an adopted EIS is not final, or it is subject to a referral
to CEQ as specified in 40 CFR part 1504, or the EIS's adequacy is the
subject of a judicial action that is not final, the NECM must include
an explanation in the FSA EIS why adoption of the EIS was appropriate.
Sec. 799.59 Record of decision.
(a) FSA will issue an ROD within the time periods specified in 40
CFR 1506.10(b) but no sooner than 30 days after the Environmental
Protection Agency's publication of the NOA of the final EIS. The ROD
will:
(1) State the decision reached;
(2) Identify all alternatives considered by FSA in reaching its
decision, specifying the alternative or alternatives considered to be
environmentally preferable;
(3) Identify and discuss all factors, including any essential
considerations of national policy, which were balanced by FSA in making
its decision, and state how those considerations entered into its
decision; and
(4) State whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted and,
if not, explain why these mitigation measures were not adopted.
(b) FSA will distribute the ROD to all parties who request it.
(c) FSA will publish the ROD or a notice of availability of the ROD
in the Federal Register.
7 CFR CHAPTER XIV--COMMODITY CREDIT CORPORATION
PART 1436--FARM STORAGE FACILITY LOAN PROGRAM REGULATIONS
0
28. The authority citation for part 1436 continues to read as follows:
Authority: 7 U.S.C. 7971 and 8789; and 15 U.S.C. 714-714p.
Sec. 1436.17 [Removed]
0
29. Remove Sec. 1436.17.
7 CFR CHAPTER XVIII--RURAL HOUSING SERVICE, RURAL BUSINESS-COOPERATIVE
SERVICE, RURAL UTILITIES SERVICE, AND FARM SERVICE AGENCY, DEPARTMENT
OF AGRICULTURE
PART 1940--GENERAL
0
30. The authority citation for part 1940 continues to read as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; and 42 U.S.C. 1480.
Subpart G--Environmental Program
0
31. Amend Sec. 1940.301 by adding paragraph (i) to read as follows:
Sec. 1940.301 Purpose.
* * * * *
(i) This subpart does not apply to the Farm Service Agency Farm
Loan Programs. (See part 799 of this title for the Farm Service Agency
NEPA implementing regulations.)
0
32. Revise Exhibit M to Subpart G of Part 1940 to read as follows:
Exhibit M to Subpart G of Part 1940--Conservation of Wetlands and
Highly Erodible Land Affecting Farm Loan Programs and Loans to Indian
Tribes and Tribal Corporations
The Farm Service Agency consolidated the Farm Loan Programs NEPA
implementing regulations into part 799 of this title. (The swampbuster
and sodbuster provisions previously contained in Exhibit M do not apply
to the Rural Housing Service, Rural Business-Cooperative Service, and
Rural Utilities Service.) Therefore, see part 799 of this title for
information related to the Farm Service Agency's NEPA implementing
regulations; see part 12 of this title for information related to
highly erodible land and wetland conservation; and see parts 761
through 774 of this title for information related to Farm Loan
Programs.
Signed on August 25, 2014.
Juan M. Garcia,
Administrator, Farm Service Agency, and Executive Vice President,
Commodity Credit Corporation.
Signed on August 26, 2014.
Douglas J. O'Brien,
Acting Under Secretary, Rural Development.
[FR Doc. 2014-20836 Filed 9-2-14; 8:45 am]
BILLING CODE 3410-05-P