[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29632-29674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-12326]
[[Page 29631]]
Vol. 90
Thursday,
No. 126
July 3, 2025
Part II
Department of Agriculture
-----------------------------------------------------------------------
7 CFR Parts 1b, 372, 520, et al.
36 CFR Part 220
National Environmental Policy Act; Interim Final Rule
Federal Register / Vol. 90 , No. 126 / Thursday, July 3, 2025 / Rules
and Regulations
[[Page 29632]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Parts 1b, 372, 520, 650, 799, 1970, and 2407
36 CFR Part 220
[USDA-2025-0008]
RIN 0503-AA86
National Environmental Policy Act
AGENCY: Agriculture (USDA).
ACTION: Interim final rule; request for public comment.
-----------------------------------------------------------------------
SUMMARY: This interim final rule modifies the U.S. Department of
Agriculture (USDA) regulations implementing the National Environmental
Policy Act (NEPA) and removes various USDA agency regulations for
implementing NEPA. USDA is taking this action in response to the
Council on Environmental Quality's rescission of its NEPA implementing
regulations (which USDA's NEPA regulations were designed to
supplement), statutory changes to NEPA, executive orders, and case law.
Comments are voluntarily requested on this action to inform USDA's
decision-making.
DATES: This rule is effective July 3, 2025. Comments concerning this
rule must be received by July 30, 2025.
ADDRESSES: Comments, identified by USDA-2025-0008, should be sent via
one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: USDA, 1400 Independence Ave. SW, Washington, DC
20250-0108.
Comments should be confined to issues pertinent to the interim
final rule, explain the reasons for any recommended changes, and
reference the specific section and wording being addressed, where
possible. All timely comments will be placed in the record and be
available for public inspection at https://www.regulations.gov,
including any personal information provided. Do not submit any
information you consider to be private, confidential business
information, or other information whose disclosure is restricted by
statute.
FOR FURTHER INFORMATION CONTACT: Scott Vandegrift, Chief Environmental
Review and Permitting Officer, Office of the Secretary, 202-720-5166,
[email protected]. Individuals who use telecommunications
devices for the hearing-impaired may call 711 to reach the
Telecommunications Relay Service, 24 hours a day, every day of the
year, including holidays.
SUPPLEMENTARY INFORMATION:
I. Background
On February 25, 2025, CEQ issued an interim final rule rescinding
their regulations in response to Executive Order (E.O.) 14154,
Unleashing American Energy.
CEQ's interim final rule rescinded its NEPA implementing
regulations, including 40 CFR parts 1500, 1501, 1502, 1503, 1504, 1505,
1506, 1507, and 1508. The effective date of CEQ's interim rule was
April 11, 2025. The background of CEQ's regulations, recent litigation,
and relevant executive orders leading up to their February 25, 2025,
interim final rule support the rationale underlying this interim final
rule.
The Department of Agriculture (USDA) is issuing this interim final
rule to revise, move and republish, or remove portions of USDA's
existing regulations for implementing the National Environmental Policy
Act (NEPA) of 1969, 42 U.S.C. 4321-4347, as amended by the Fiscal
Responsibility Act of 2023, as well as add new portions to the USDA
NEPA implementing regulations for three independent reasons.
First, CEQ's regulations were repealed effective April 11, 2025;
see Removal of National Environmental Policy Act Implementing
Regulations, 90 FR 10610 (Feb. 25, 2025). USDA and its agencies'
regulations were promulgated as a ``supplement'' that ``incorporates
and adopts'' the CEQ's NEPA regulations, see 7 CFR 1b.1(a). However,
the CEQ regulations (40 CFR parts 1500 through 1508) no longer provide
a valid foundation for USDA NEPA regulations. Second, Congress recently
amended NEPA in significant part, in the Fiscal Responsibility Act of
2023 (FRA), Public Law 118-5, signed on June 3, 2023, in which Congress
added substantial detail and direction in Title I of NEPA regarding
procedural issues that CEQ and individual acting agencies had
previously addressed in their own procedures. USDA recognized the need
to update its regulations considering these significant legislative
changes. Since USDA's regulations were originally designed as a
supplement to CEQ's NEPA regulations, USDA had been awaiting CEQ action
before revising its regulations, consistent with CEQ direction. See 40
CFR 1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However,
with CEQ's regulations now rescinded, and with USDA's NEPA implementing
procedures still unmodified more than two years after this significant
legislative overhaul, it is exigent that USDA move quickly to conform
its procedures to the statute as amended. And third, the U.S. Supreme
Court recently issued a landmark decision in Seven County
Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct. 1497
(2025), in which it decried the ``transform[ation]'' of NEPA from its
roots as ``a modest procedural requirement,'' into a significant
``substantive roadblock'' that ``paralyze[s]'' ``agency decision-
making.'' Id. at 1507, 1513 (quotations omitted). The Supreme Court
explained that part of that problem had been caused by decisions of
lower courts, which it rejected, issuing a ``course correction''
mandating that courts give ``substantial deference'' to reasonable
agency conclusions underlying its NEPA process. Id. at 1513-14. But the
Court also acknowledged, and through its course correction sought to
address, the effect on ``litigation-averse agencies'' which, in light
of judicial ``micromanage[ment],'' had been ``tak[ing] ever more time
and [ ] prepar[ing] ever longer EISs [environmental impact statements]
for future projects.'' Id. at 1513. USDA incorporated this case's
holdings into these procedures, availing itself of the latest
information and guidance from the Court for its future NEPA
application.
These reasons now prompt USDA to publish this interim final rule to
revise, move and republish, or remove portions of the USDA NEPA
implementing regulations, as well as add new portions, given the CEQ
NEPA regulations no longer provide a foundation for USDA NEPA
regulations and leave the Department without necessary interpretation
of, and implementing procedures for, NEPA. NEPA is a vital part of
Federal agency planning and decision-making, and USDA agencies need
clear standards and guidelines as soon as possible to conduct the work
of providing critical services and funds to Americans, as directed by
Congress. Conducting a standard rulemaking process would impede USDA's
planning and decision-making for longer than necessary and would be
impracticable and contrary to the public interest. For these reasons,
USDA is using the interim final rule process. (Also see discussion
under Section III. for additional rationale for using the interim rule
process.)
National Environmental Policy Act
Congress enacted NEPA to declare a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote
[[Page 29633]]
the general welfare, to create and maintain conditions under which man
and nature can exist in productive harmony, and [to] fulfill the
social, economic, and other requirements of present and future
generations of Americans.'' 42 U.S.C. 4331(a).
As amended by the Fiscal Responsibility Act of 2023, Public Law
118-5, NEPA furthers this national policy by requiring Federal agencies
to prepare a ``detailed statement'' for proposed ``major Federal
actions significantly affecting the quality of the human environment.''
42 U.S.C. 4332(2)(C). This statement must address: (1) the reasonably
foreseeable environmental impacts of the proposed agency action; (2)
the reasonably foreseeable adverse environmental impacts that cannot be
avoided; (3) a reasonable range of alternatives to the proposed agency
action that are technically and economically feasible and meet the
purpose and need of the proposal, including an analysis of any negative
environmental impacts of not implementing the proposed agency action in
the case of a no action alternative; (4) the relationship between local
short-term uses of man's environment and the maintenance and
enhancement of long-term productivity; and (5) any irreversible and
irretrievable commitments of resources that would be involved in the
proposed action (or action alternatives). 42 U.S.C. 4332(2)(C).
NEPA further mandates that Federal agencies ensure the professional
and scientific integrity of environmental documents; use reliable data
and resources when carrying out NEPA; and study, develop, and describe
technically and economically feasible alternatives. 42 U.S.C.
4332(2)(D)-(F). NEPA provides procedures for making threshold
determinations about whether an environmental document must be prepared
and, if so, which type of environmental document. 42 U.S.C. 4336(a)-
(b).
NEPA identifies three levels of review--categorical exclusion,
environmental assessment, and environmental impact statement. NEPA
Sec. 107, 42 U.S.C. 4336a. A categorical exclusion is a ``a category
of actions that a Federal agency has determined normally does not
significantly affect the quality of the human environment within the
meaning of [NEPA] section 102(2)(C).'' NEPA Sec. 111(1), 42 U.S.C.
4336e(1). An environmental assessment is a ``concise'' document
``set[ting] forth the basis of [an] agency's finding of no significant
impact or determination that an environmental impact statement is
necessary,'' prepared in connection with a proposed agency action that
does not have a significant impact or the significance of whose impact
is unknown. NEPA Sec. 106(b)(2), 42 U.S.C. 4336(b)(2). An
environmental impact statement is a detailed statement analyzing a
proposed agency action with reasonably foreseeable significant impacts,
governed by the provisions of NEPA Sec. Sec. 102(2)(C), 106(b)(1); 42
U.S.C. 4332(2)(C), 4336(b)(1).
NEPA does not mandate particular results or substantive outcomes.
Seven County, 145 S. Ct., at 1510. Rather, NEPA requires Federal
agencies to consider the environmental effects of proposed actions as
part of Federal agency decision-making processes. As amended by the
Fiscal Responsibility Act, NEPA provides additional requirements to
facilitate timely and unified Federal reviews, including provisions
clarifying lead, joint lead, and cooperating agency designations,
generally requiring the development of a single environmental document,
directing agencies to develop procedures for proposal sponsors to
prepare environmental assessments and environmental impact statements,
and prescribing page limits and deadlines. NEPA Sec. 107, 42 U.S.C.
4336a. NEPA also sets forth the circumstances under which agencies may
rely on programmatic environmental documents, NEPA Sec. 108, 42 U.S.C.
4663b, and adopt and use another agency's categorical exclusions, NEPA
Sec. 109, 42 U.S.C. 4336c.
II. Basis for Consolidating and Revising USDA's NEPA Regulations
A. USDA NEPA Regulations
In 1974, the Secretary of Agriculture issued Memorandum No. 1695,
Supplement 4 (Revised), to establish guidelines for the preparation of
environmental impact statements and compliance with other procedural
requirements of Sec. 102(2) of the National Environmental Policy Act
(NEPA). On May 1, 1979 (44 FR 25606) and July 30, 1979 (44 FR 44802),
the Department of Agriculture (USDA) proposed and finalized rules
setting forth policies and procedures for compliance with NEPA and the
Council on Environmental Quality's (CEQ) implementing regulations (40
CFR parts 1500 through 1508). On occasion, the Department has further
amended its NEPA regulations to refine and adjust to better meet its
organizational and program needs. See 44 FR 44802, 46 FR 47747, 48 FR
11403, 60 FR 66481, 76 FR 4802.
USDA promulgated its current regulations in 1995 (60 FR 66481, Dec.
22, 1995), to ``[supplement] the regulations for the implementation of
the National Environmental Policy Act (NEPA), for which regulations
were published by the CEQ in 40 CFR parts 1500 through 1508 [and
incorporate and adopt] those regulations.'' Subtitle A, part 1b.1 of
title 7 of the Code of Federal Regulations (hereinafter 7 CFR 1b). USDA
NEPA regulations were dependent upon provisions in the 1978 CEQ
regulations. Similarly, individual USDA agency NEPA regulations
expressly state that their ``purpose'' is to supplement and implement
CEQ regulations:
(1) Agricultural Research Service, subtitle B, chapter V, part 520,
of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 520):
``These procedures incorporate and supplement, and are not a substitute
for, CEQ regulations under 40 CFR parts 1500-1508, and Department of
Agriculture NEPA Policies and Procedures under 7 CFR part 1b.'' (7 CFR
520.1);
(2) Animal Plant Health and Inspection Service, subtitle B, chapter
III, part 372, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 372): ``These procedures implement section 102(2) of
the National Environmental Policy Act (NEPA) by assuring early and
adequate consideration of environmental factors in Animal and Plant
Health Inspection Service planning and decision-making and by promoting
the effective, efficient integration of all relevant environmental
requirements under NEPA. The goal of timely, relevant environmental
analysis will be secured principally by adhering to NEPA implementing
regulations (40 CFR parts 1500-1508), especially provisions pertaining
to timing (Sec. 1502.5), integration (Sec. 1502.25), and scope of
analysis (Sec. 1508.25).'' (7 CFR 372.1);
(3) Farm Service Agency, subtitle B, chapter VII, subchapter G,
part 799, of title 7 of the Code of Federal Regulations (hereinafter 7
CFR 799): ``This part: . . . (2) Establishes FSA procedures to
implement the (i) National Environmental Policy Act (NEPA) of 1969, as
amended (42 U.S.C. 4321 through 4370); (ii) CEQ regulations (40 CFR
parts 1500 through 1518); and (iii) USDA NEPA regulations (Sec. Sec.
1b.1 through 1b.4 of this title).'' (7 CFR 799.1);
(4) National Institute of Food and Agriculture, subtitle B, chapter
XXXIV, part 3407, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 3407): ``The purpose of this regulation is to
supplement the regulations for implementation of NEPA established by
the CEQ and codified at 40 CFR parts
[[Page 29634]]
1500-1508, as adopted by USDA in 7 CFR part 1b.'' (7 CFR 3407.1);
(5) Natural Resources Conservation Service, subtitle B, chapter VI,
subchapter F, part 650, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 650): ``The procedures included in this rule
supplement CEQ's NEPA regulations, 40 CFR parts 1500-1508. CEQ
regulations that need no additional elaboration to address NRCS-
assisted actions are not repeated in this rule, although the
regulations are cited as references. The procedures include some
overlap with CEQ regulations. This is done to highlight items of
importance for NRCS. This does not supersede the existing body of NEPA
regulations.'' (7 CFR 650.1);
(6) Rural Development, subtitle B, chapter XVIII, subchapter H,
part 1970, of title 7 of the Code of Federal Regulations (hereinafter 7
CFR 1970): ``This part also supplements the CEQ regulations
implementing the procedural provisions of NEPA, 40 CFR parts 1500
through 1508. To the extent appropriate, the agency will take into
account CEQ guidance and memoranda.'' (7 CFR 1970.1); and
(7) U.S. Forest Service, chapter II, part 220, of title 36 of the
Code of Federal Regulations (hereinafter 36 CFR 220): ``This part
establishes Forest Service, U.S. Department of Agriculture (USDA)
procedures for compliance with the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321-4347) and the CEQ regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500
through 1508) . . . This part supplements and does not lessen the
applicability of the CEQ regulations and is to be used in conjunction
with the CEQ regulations and USDA regulations at 7 CFR part 1b.'' (36
CFR 220.1).
Departmental and agency NEPA regulations have been largely
organizational and technical, with limited substantive content. The
Department's past judgment has been that effective NEPA implementation
could be achieved by reliance on a policy statement in 7 CFR 1b.2 and
individual USDA agency NEPA regulations for tailored technical
procedures. For the reasons described above, the Department now
believes that a change is necessary to advance the Department's mission
in an efficient, flexible, and innovative manner while ensuring the
conservation and protection of the environment.
USDA has analyzed how best to respond to the CEQ's interim final
rule and fulfill NEPA's statutory requirements while allowing for
efficient program implementation. In the Department's judgment, given
that NEPA is a procedural statute that simply directs consideration of
reasonably foreseeable environmental impacts, it is sufficient for the
Department to issue a set of uniform procedures, and it is not
necessary for each agency with NEPA responsibilities across the
Department to supplement the Department NEPA regulations. Therefore,
USDA is proposing to correct course and right-size its NEPA regulations
consistent with applicable law.
B. USDA Agency-Specific NEPA Regulation Summaries
1. Statement of Purpose
USDA's new NEPA implementing procedures, as adopted via this
interim final rule, are a more faithful implementation of the statute
as amended in 2023 than its old procedures. These procedures implement
major structural features of the 2023 amendments, such as deadlines and
page limits for environmental assessments and environmental impact
statements, as directed at NEPA Sec. 107(g), 42 U.S.C. 4336(g), and
provide that USDA will complete preparation of these documents within
the maximum length and on the timeline that Congress intends. They
incorporate Congress's definition of ``major Federal action'' and the
exclusions thereto, as codified at NEPA Sec. 111(10), 42 U.S.C.
4336e(10). They incorporate Congress's mandated procedure for
determining the appropriate level of review under NEPA, as codified in
NEPA Sec. 106, 42 U.S.C. 4336. They incorporate Congress's direction
with respect to establishment, adoption, and application of categorical
exclusions, as codified at NEPA Sec. 111(10), 42 U.S.C. 4336e(10).
They provide procedures governing project-sponsor-prepared
environmental assessments and environmental impact statements, as
directed at NEPA Sec. 107(f), 42 U.S.C. 4336a(f). And they incorporate
Congress's revision to the requirements for what an agency must address
in its environmental impact statements, as codified at NEPA Sec.
102(2)(C), 42 U.S.C. 4332(2)(C), and Congress's requirement that public
notice and solicitation of comment be provided when issuing a notice of
intent to prepare an environmental impact statement, as directed at
NEPA Sec. 107(c), 42 U.S.C. 4336a(c). All of these are crucial
features of Congress's policy design and its purpose in the 2023
amendments that NEPA review be more efficient and certain.
Moreover, all of these respond to the President's directive in E.O.
14154; and all of these reflect the Supreme Court's recent and
unequivocal statement that NEPA is a purely procedural statute. The
Department is conscious of the Supreme Court's admonition that NEPA
review has grown out of all proportion to its origins of a ``modest
procedural requirement,'' creating, `` `under the guise' of just a
little more process,'' ``[d]elay upon delay, so much so that the
process seems to `borde[r] on the Kafkaesque.' '' Seven County, 145 S.
Ct. at 1513-1514. These procedures, therefore, are intended to align
NEPA with its Congressionally mandated dimensions, reflecting the
guidance given also by the President and the Supreme Court, and making
review under it faster, more flexible, and more efficient.
In reaching this decision, USDA acknowledges that third parties may
claim to have reliance interests in USDA's existing NEPA procedures.
But revised agency procedures will have no effect on ongoing NEPA
reviews, where USDA, following CEQ guidance, has held it will continue
to apply existing applications. Moreover, as the Supreme Court has just
explained, NEPA ``is a purely procedural statute'' that ``imposes no
substantive environmental obligations or restrictions.'' Seven County,
145 S. Ct. at 1507. Any asserted reliance interests grounded in
substantive environmental concerns are not in accord with the best
meaning of the law and are entitled to ``no . . . weight.'' Dep't of
Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891,
1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, the Department holds
that they are ``outweigh[ed]'' by ``other interests and policy
concerns.'' Id. Namely, the complex web of regulations that preexisted
the 2023 amendments to NEPA and the new Procedures repeatedly ``led to
more agency analysis of separate projects, more consideration of
attenuated effects, more exploration of alternatives to proposed agency
action, more speculation and consultation and estimation and
litigation,'' which in turn has meant that ``[f]ewer projects make it
to the finish line,'' or even ``to the starting line.'' Seven County,
145 S. Ct. at 1513-14. This has increased the cost of projects
dramatically, ``both for the agency preparing the EIS and for the
builder of the project,'' resulting in systemic harms to America's
infrastructure and
[[Page 29635]]
economy. Id. Correspondingly, the wholesale revision and simplification
of this regime, effectuated by these procedures, is necessary to ensure
efficient and predictable reviews, with significant upsides for the
economy and for projects of all sorts. This set of policy
considerations drastically outweighs any claimed reliance interests in
the preexisting procedures.
USDA has revised its NEPA implementing regulations to conform to
the 2023 statutory amendments, to respond to President Trump's
direction in E.O. 14154 to, ``[c]onsistent with applicable law,
prioritize efficiency and certainty over any other objectives,
including those of activist groups, that do not align with the policy
goals set forth in section 2 of [that] order or that could otherwise
add delays and ambiguity to the permitting process,'' and to address
the pathologies of the NEPA process and NEPA litigation as identified
by the Supreme Court. Where USDA has retained an aspect of its
preexisting NEPA implementing procedures, it is because that aspect is
compatible with these guiding principles; where USDA has revised or
removed an aspect, it is because that aspect is not so compatible.
2. General Overview of Changes
USDA is modifying the department-level NEPA regulations found at 7
CFR 1b to provide a valid foundation from which USDA mission areas,
agencies, and staff offices (or subcomponents) implement NEPA. 7 CFR 1b
would primarily retain and move the placement of the following
information currently contained in 7 CFR 1b and the individual agency
NEPA regulations below: categorical exclusions, which includes a list
of USDA agencies and offices excluded from completing an environmental
assessment or environmental impact statement; and emergency action
provisions. Some additional sections from agency-specific regulations
are also retained, as described in the agency-specific regulation
discussions listed below. Except for the information to be moved to the
revised 7 CFR 1b regulation, the following individual agency NEPA
regulations will be rescinded in full:
--Agricultural Research Service: 7 CFR 520;
--Animal and Plant Health Inspection Service: 7 CFR 372;
--Farm Service Agency: 7 CFR 799;
--National Institute of Food and Agriculture: 7 CFR 3407;
--Natural Resources Conservation Service: 7 CFR 650;
--Rural Development: 7 CFR 1970; and
--U.S. Forest Service: 36 CFR 220.
The following summaries capture additional specific changes that
are occurring for each affected USDA regulation. For all regulations,
references to CEQ's rescinded NEPA implementing regulations (40 CFR
parts 1500 through 1508) were removed. Where USDA agency NEPA
regulations cited portions of the agency regulation that are now being
rescinded, those references were also removed and revised to refer to
the applicable section in the revised 7 CFR 1b regulation. Where USDA
agency NEPA regulations used agency-developed terms, such as those
associated with agency-developed forms and other document types, these
have been generalized to allow for the application of consistent
Department implementing procedures for NEPA. As discussed previously,
USDA agencies will be able to issue agency-specific procedures through
technical and program guidance that aligns with NEPA and the Department
regulations at 7 CFR 1b.
3. USDA Departmental NEPA Regulations (7 CFR 1b)
USDA is revising the department-level NEPA regulations at 7 CFR 1b
to provide necessary guidance and direction for implementing NEPA in
the absence of the CEQ NEPA implementing regulations, as rescinded
effective April 11, 2025.
With the CEQ NEPA implementing regulations having been rescinded,
USDA identified opportunities to reduce redundant and duplicative
regulation revision efforts for agency-specific NEPA regulations and
instead establish necessary direction at the department-level. This
allows the Department to establish consistency across the
subcomponents, where desired, in how NEPA is implemented.
The following provides a summary of what is included or being
revised in each section of the department-level NEPA regulations, as
well as the rationale for the changes.
7 CFR 1b.1--Purpose: Previous paragraphs (a) and (b) in this
section are removed. Paragraphs (a) through (d) are added and this
section is now revised to read as indicated in 7 CFR 1b.1.
In this section, USDA removes reference to CEQ NEPA regulations at
40 CFR parts 1500 through 1508 and adds clarification of the purpose of
the revised departmental NEPA regulations. This section specifies the
mission areas, agencies, and staff offices (hereinafter USDA
subcomponents or subcomponent) the part applies to.
7 CFR 1b.2--Policy: Previous paragraphs (a), (b), (c), and (d) in
this section are removed. Paragraphs (a) through (i) are added and this
section is now revised to read as indicated in 7 CFR 1b.2. In this
section, USDA outlines the Department's policy on complying with NEPA
and specifies roles and responsibilities at the Department for managing
NEPA compliance. The Under Secretary of Natural Resources and
Environment continues to hold responsibility for ensuring overall
Department compliance with NEPA. This section provides clarification on
the issuance of agency-specific NEPA guidance for processes and
practices that address agency-specific laws and program efficiency.
USDA adds requirements to this section to submit to Congress on an
annual basis a report that identifies any environmental assessment and
environmental impact statement that such lead agency did not complete
by the deadline described in NEPA Sec. 107(g), 42 U.S.C. 4336a(g), as
amended in 2023, and provide an explanation for failure to meet
deadlines. Specifies USDA roles and responsibilities for completing
this report.
This section adds the process for how USDA subcomponents will
determine when NEPA does not apply. Consideration of whether the action
is a major Federal action is added, as the definition of major Federal
action was added to NEPA, as amended by the Fiscal Responsibility Act
of 2023. NEPA does not apply to ``non-Federal actions''; therefore,
under the terms of the statute, NEPA does not apply to actions with no
or minimal Federal funding, or with no or minimal Federal involvement
where a Federal agency cannot control the outcome of the proposal. A
but-for causal relationship is insufficient to make an agency
responsible for a particular action under NEPA. See Dept. of Transp. v.
Pub. Citizen, 541 U.S. 752, 767 (2004). By the same token, minimal
Federal funding or involvement, which may in a causal sense be a but-
for cause of an action, does not by itself convert that action into a
Federal action within the meaning of the language of the statute.
This section adds the process for how USDA subcomponents will
determine the level of NEPA that applies. Where some agency-specific
NEPA regulations identified categories of actions generally requiring
an environmental assessment or environmental impact statement, these
sections have not been carried forward into 7 CFR 1b. NEPA does not
require the identification of categories of actions other than those
actions that are categorically excluded from documentation in an
environmental assessment or environmental impact statement when a
Federal agency has
[[Page 29636]]
determined the actions normally do not significantly affect the quality
of the human environment within the meaning of NEPA Sec. 102(2)(C), 42
U.S.C. 4332(2)(C), NEPA Sec. 111(1), 42 U.S.C. 4336e(1)). Because the
determination of no significance was made during the process of
establishing the categorical exclusion, it is the consideration of
whether an extraordinary circumstance exists that may preclude the use
of the category (see 7 CFR 1b.3(f)). In determining whether a
categorical exclusion applies to a proposed action, and therefore does
not require preparation of an environmental assessment or environmental
impact statement, an agency should evaluate the action for
extraordinary circumstances that indicate a normally excluded action is
likely to have reasonably foreseeable significant adverse effect.
Determinations of whether to prepare an environmental assessment or
environmental impact statement should be based on the anticipated
degree of effect, in accordance with NEPA, not on the type of action.
An environmental assessment shall be prepared when a Federal agency
finds that a categorical exclusion does not apply to an action and the
action does not have a reasonably foreseeable significant impact on the
quality of the human environment, or the significance of such effect is
unknown (NEPA Sec. 106(b)(2) (42 U.S.C. 4336(b)(2); 7 CFR
1b.2(f)(iv)(A)) and 1b.5(a)). An environmental impact statement shall
be issued when a Federal agency finds that a categorical exclusion does
not apply and determines an action has a reasonably foreseeable
significant impact on the quality of the human environment (NEPA Sec.
106(b)(1) 42 U.S.C. 4336(b)(1); 7 CFR 1b.2(f)(iv)(B) and 1b.7(a)). This
policy accurately reflects the statutory requirements of NEPA for
determining the appropriate level of NEPA review (categorical
exclusion, environmental assessment, or environmental impact
statement).
This section also includes the new considerations for whether the
effects of the proposed action (or alternatives) are significant (7 CFR
1b.2(f)(3)). When defining considerations for significance, USDA is
using the concept of ``affected environment'' and a list of types of
effects that include both short- and long-term effects, both beneficial
and adverse effects, effects on public health and safety, economic
effects, and effects on the quality of life of the American people.
With regards to the rationale the responsible official provides as
to whether the degree of effect is significant, USDA is aligning
considerations of significance with the statutory items that must be
disclosed in an environmental impact statement, per NEPA Sec.
102(2)(C)(i-v) (42 U.S.C. 4332), such as disclosure of reasonably
foreseeable environmental impacts (as both short- and long-term
effects), consequences of not implementing the action, irreversible or
irretrievable commitment of Federal resources, and long-term
productivity of the human environment. Instead of leaving the list of
types of effects as disparate disclosures, USDA finds it logical to
bring these together when it comes to considerations for significance.
The terms ``compares to'' and ``contributes to,'' as included in the
considerations for significance, provide the necessary precision or
focus for conducting the analysis of the effects and considering how
the potential impacts compare to the consequences, especially as it
relates to effects on public health and safety, economics, and the
quality of life of the American people, as well as identifying
irreversible and irretrievable commitments and how these contribute to
loss of long-term productivity for the human environment. Outlining the
significance considerations in this manner allows those conducting
effects analysis to better focus on the issues to be analyzed in detail
for reasonably foreseeable significant impacts and allows the
responsible official to better communicate their rationale for deciding
how to proceed and why.
Specifies that as part of USDA subcomponent decision-making, NEPA
should be integrated with other environmental analyses to demonstrate
compliance with other laws. Also adds limitations on actions taken
during the NEPA process.
7 CFR 1b.3--Categorical Exclusions and Findings of Applicability
and No Extraordinary Circumstance: Revises the title of this section
from ``Categorical Exclusions'' to ``Categorical Exclusions and
Findings of Applicability and No Extraordinary Circumstance''.
Department-level categorical exclusions previously included in
paragraph (a) of this section are moved to Sec. 1b.4, with revisions
occurring to these as described in the discussion of changes for Sec.
1b.4. Previous paragraphs (b) and (c) in this section are removed.
Paragraphs (a) through (j) are added and this section is now revised to
read as indicated in 7 CFR 1b.3.
Adds procedures for establishing, revising, adopting, removing, and
applying categorical exclusions, as well as relying on other agency
categorical exclusion determinations.
Adds clarification that USDA subcomponents may use any of the
categorical exclusions listed at 7 CFR 1b.4, as well as use non-USDA
categories that were adopted by any other USDA subcomponent. The USDA
NEPA regulations have always included Department-wide CEs (now moved to
Sec. 1b.4). See 48 FR 11403 (March 18, 1983) and 60 FR 66481 (Dec. 22,
1995). Given the issuance of one set of departmental NEPA regulations
to provide consistency for all USDA subcomponents implementing NEPA,
the recission of agency-specific NEPA regulations, and the overlap of
similar programs and activities across USDA mission areas and agencies,
the Department finds it is appropriate for USDA subcomponents to apply
the same categorical exclusions where it makes sense to do so for the
actions proposed by the subcomponent.
Adds procedures for considering extraordinary circumstances,
explanation of what constitutes an extraordinary circumstance, and
clarification for how the subcomponent should proceed based on the
determination of whether there are extraordinary circumstances.
Clarifies an extraordinary circumstance means a unique situation exists
in which actions that normally do not have significant impacts and are
therefore categorically excluded from documentation in an environmental
assessment or environmental impact statement, create uncertainty
whether the degree of the impact is significant for the relevant
resources considered (7 CFR 1b.11(a)(17)). Previously, some agencies
had mandated lists of resources to consider for extraordinary
circumstances while other agencies had no list. Adds a list of
resources (based on the previously existing lists in some USDA agency-
specific NEPA regulations) a responsible official may consider for
extraordinary circumstances but does not mandate any of these must be
considered. Considerations for extraordinary circumstances will be made
at the responsible official's sole discretion and determined on a case-
by-case basis, considering the nature of the proposed action and the
potentially affected environment. Adds clarification on what
constitutes the existence of an extraordinary circumstance and
specifies that effects analysis completed to demonstrate compliance
with other applicable laws also can be relied on to determine no
extraordinary circumstance exists.
Adds the concept of a finding of applicability and no extraordinary
circumstance (FANEC), which applies
[[Page 29637]]
to all categorical exclusions. For those categories requiring NEPA
documentation, specifies that these determinations must be documented
to demonstrate the appropriate use of the category, adequate
consideration of extraordinary circumstances, and a determination that
no extraordinary circumstance exists. Gives agencies flexibility on how
to document these determinations so long as certain items are
addressed. Clarifies documentation considerations for other applicable
environmental laws and regulations and timing of action.
7 CFR 1b.4--Categorical Exclusion of USDA Subcomponents and
Actions: Revises the title of this section from ``Exclusion of
Agencies'' to ``Categorical Exclusion of USDA Subcomponents and
Actions''. Previous paragraphs (a) and (b) are combined into one
paragraph, now paragraph (a), which is revised to read as indicated in
7 CFR 1b.4. This section is revised to read as indicated in 7 CFR 1b.4.
Paragraphs (b), (c), and (d) are added to this section.
Paragraphs (a) include the list of USDA subcomponents generally
excluded from preparing an environmental assessment or environmental
impact statement and adds general offices of the Department to this
list.
The department-level categorical exclusions previously listed in
Sec. 1b.3 have been moved to paragraph (c) in this section. Examples
of actions that fit the category were added to some of the department-
wide categories, as further described under the agency-specific
regulation changes discussed below. Some agencies had categorical
exclusions that were duplicative of the department-wide categories or
served as examples of those categories; therefore, these were removed
as separate categories and added as examples of the department-wide
categories where applicable.
Categorical exclusions previously codified in USDA agency-specific
NEPA regulations are now consolidated under paragraphs (c) and (d) in
this section. Any changes to the categorical exclusion language, as
previously documented in agency-specific NEPA regulations, are
discussed under the applicable agency-specific justification sections
below. Other than these few modifications to categories, the majority
of categories remain unchanged as originally promulgated and are simply
moved from one section of USDA's regulations to another. Categories are
organized by those that do or do not require NEPA documentation. New
numbering was assigned to each categorical exclusion to make it easier
to reference categories across the Department as any USDA subcomponent
may utilize the categorical exclusions listed in 7 CFR 1b. Numbering
includes acronyms at the end indicating the agency that initially
established the category to help agency personnel more readily locate
the categories they are likely to continue using frequently.
7 CFR 1b.5--Environmental Assessments: This section is added to
read as indicated in 7 CFR 1b.5.
Adds procedures for issuing environmental assessments. Reinforces
the role of an environmental assessment (EA). Gives agencies
flexibility on how to format the EA so long as certain items are
addressed. Provides clarification on requirements for analysis of
alternatives for an EA and reiterates the importance of deadline and
page limit requirements from NEPA, as amended in 2023. Consideration of
taking no action shall be included as part of the environmental impacts
analysis to contrast the potential impacts of the proposed action, and
any alternative(s) if developed, with the current condition and
expected future condition if the proposed action or alternative were
not implemented (7 CFR 1b.5(c)(2)(i)). This is necessary to inform
aspects of the consideration of significance, as specified in 7 CFR
1b.2(f)(3).
States that subcomponents are to adhere to the statutory deadlines
and publish an EA ``in as substantially complete form as is possible.''
Requires responsible officials to certify that they made a good faith
effort to satisfy the requirements in the statute. Clarifies when
seeking an extension to the deadline is appropriate. These new
additions provide the Department's policy on how it will apply the new
statutory deadlines in 42 U.S.C. 4336a(g) and page limits in 42 U.S.C.
4336a(e). This policy is based on the rationale that NEPA is governed
by a ``rule of reason.'' Dept. of Transp. v. Pub. Citizen, 541 U.S. 752
(2004). In establishing deadlines for the environmental assessment
process in the 2023 revision of NEPA, Congress supplied the measure of
that reason in NEPA Sec. 107(g), 42 U.S.C. 4336a(g). ``Time and
resources are simply too limited for us to believe that Congress
intended'' consideration under NEPA to extend indefinitely. Metro.
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983)
(citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551
(1978)). Clarifies when it may be appropriate to publish a notice of
intent to prepare an EA. Provides direction on making the EA available
to the public.
7 CFR 1b.6--Finding of No Significant Impact: This section is added
to read as indicated in 7 CFR 1b.6.
Adds procedures for issuing findings of no significant impact.
Reinforces the role of a finding of no significant impact (FONSI).
Gives agencies flexibility on how to format the FONSI so long as
certain items are addressed. Provides direction on making the FONSI
available to the public, providing notifications, and timing of the
action.
7 CFR 1b.7--Environmental impact statements: This section is added
to read as indicated in 7 CFR 1b.7.
Adds procedures for issuing environmental impact statements.
Reinforces the role of an environmental impact statement (EIS).
Provides direction on lead agency responsibilities for publication of
the notice of intent, and scoping if conducted, including how to
address delays, pauses, or withdrawals regarding intent to prepare an
EIS.
Adds clarity on the process for requesting comments during
preparation of an EIS to align with statutory requirements in NEPA
(Sec. 102(2)(C), 42 U.S.C. 4332(2)(C); (NEPA Sec. 107(c), 42 U.S.C.
4336a(2)(C)).
Specifies that a request for comment may be undertaken at any time
that is reasonable in the process of preparing an EIS, as the
publication of a draft EIS is no longer required. NEPA (the Act itself)
does not require publication of a draft EIS, and filing a draft EIS
with the Environmental Protection Agency and publishing the notice of
availability in the Federal Register adds time and unnecessary process.
Responsible officials still have the discretion to publish a draft EIS
on a USDA website, along with any other pre-decisional materials that,
in their judgment, may assist in fulfilling their responsibilities
under NEPA and in facilitating the request for comments.
Reiterates that USDA subcomponents must ensure the process of
obtaining and addressing comments and the publication of draft or pre-
decisional materials must not cause the subcomponent to violate the
Congressionally mandated deadline for completion of an EIS. Specifies
that subcomponents shall consider comments and should address comments
raising substantive issues or recommendations. Focuses the subcomponent
on addressing comments by capturing the action the responsible official
took in response to the issue raised or recommendation made. Recommends
documentation of how comments were addressed should be included as an
appendix in the EIS.
[[Page 29638]]
Requires electronic publication of substantive comments and
provides an alternative course of action if USDA subcomponents do not
have the capability or capacity to electronically publish comments.
Specifies that USDA subcomponents shall consider substantive
comments but leaves discretion for addressing substantive comments in
writing. There is no requirement in NEPA to address comments in
writing; however, documentation of how comments were considered is
highly encouraged to demonstrate the rationale for how the responsible
official decides to proceed during the iterative development of the
proposed action and action alternatives and the iterative analysis
process. This documentation of how the responsible official proceeded
and why is advantageous to demonstrating that decisions made during the
iterative NEPA process are not arbitrary or capricious; however,
experience implementing the previous CEQ NEPA regulation requirement
for responding to comments has demonstrated this process led to
burdensome and time-consuming efforts that routinely prevented USDA
subcomponents from meeting the 2-year deadline for completing an EIS,
which is now mandated in NEPA Sec. 107(g)(1)(A), 42 U.S.C.
4336a(g)(1)(A). Additionally, the approach to ``response to comments''
that has been employed by some USDA subcomponents was not always the
most effective in that it did not focus on demonstrating the action the
responsible official took in response to the substantive issue raised
and/or recommendation made. In some cases, the ``response to comments''
documentation generated levels of paperwork that exceeded the page
count of the environmental document itself, defying one of the key
principles of NEPA to generate ``better decisions, not better
documents''. For this reason, this section also clarifies that if
documentation is completed to demonstrate how comments were considered
and addressed, the documentation should focus on capturing the actions
taken, as specified at 7 CFR 1b.7(f)(2), to facilitate a more efficient
and effective approach to demonstrating how the responsible official
responded to the substantive issue raised and/or recommendation made to
improve the decision made on how to proceed (for example, issues to be
analyzed in detail, alternatives to be considered or analyzed, or the
alternative selected for implementation).
Gives subcomponents flexibility on how to format the EIS so long as
certain items are addressed. Eliminates some aspects of EIS formatting
previously required in the CEQ NEPA Implementing Regulations, such as
the summary, table of contents, list of preparers, and index. These
sections also add additional time and process that do not meaningfully
inform decision-making and were more relevant when documents were
primarily issued in hard copy instead of electronically.
Reiterates deadline and page limit requirements from NEPA, as
amended in 2023. Specifies the requirement to file the EIS with the
Environmental Protection Agency is still the primary means for making
the completed EIS available to the public, in addition to publishing
the EIS on a USDA website. States that agency officials are to adhere
to the statutory deadlines and publish an EIS ``in as substantially
complete form as is possible'' and requires responsible officials to
certify that they made a good faith effort to satisfy the requirements
in the statute. Clarifies when seeking an extension to the deadline is
appropriate. These new additions provide the Department's policy on how
it will apply the new statutory deadlines in NEPA Sec. 107(g), 42
U.S.C. 4336a(g) and page limits in NEPA Sec. 107(e), 42 U.S.C.
4336a(e). This policy is based on the rationale that NEPA is governed
by a ``rule of reason.'' Dept. of Transp. v. Pub. Citizen, 541 U.S. 752
(2004). In establishing deadlines for the environmental impact
statement process in the 2023 revision of NEPA, Congress supplied the
measure of that reason in NEPA Sec. 107(g), 42 U.S.C. 4336a(g). ``Time
and resources are simply too limited for us to believe that Congress
intended'' consideration under NEPA to extend indefinitely. Metro.
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983)
(citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551
(1978)).
7 CFR 1b.8--Records of decision: This section is added to read as
indicated in 7 CFR 1b.8.
Adds procedures for issuing records of decision. Gives
subcomponents flexibility on how to format the record of decision (ROD)
so long as certain items are addressed. Specifies requirements to make
the ROD available to the public and provide notification to certain
parties.
Clarifies timing of action. Notwithstanding other statutory or
regulatory requirements, there is no longer a requirement to delay
implementation of the action once the Environmental Protection Agency
has published the notice of availability for the EIS, the ROD has been
made available to the public, and necessary notifications are provided.
7 CFR 1b.9--Efficient and effective environmental reviews: This
section is added to read as indicated in 7 CFR 1b.9.
Adds best practices for efficient and effective environmental
reviews.
Provides best practices for managing the proposal record. Includes
recommendations for assembling and managing documentation developed
during the environmental review process, responding to Freedom of
Information Act requests, managing potential withholdings and
privileges, and managing classified information.
Outlines best practices for reducing paperwork. For clarity, USDA
has revised its usage of the terms ``tiering'' and ``adopting,'' which
were described in the now rescinded CEQ NEPA Implementing Regulations.
The term ``rely'' or ``relying'' is used (instead of adopting) as this
is the term used in NEPA when referring to programmatic documents (NEPA
Sec. 108; 42 U.S.C. 4336b) and expands the original concept of
``adopting'' (now relying) to include not only whole environmental
documents but also portions thereof, to include supporting analysis
that may not be included in an environmental, finding, or decision
document in whole. To avoid confusion with NEPA Sec. 109, the term
``adopting'' is only used in reference to adopting another Federal
agency's categorical exclusions (the subject of NEPA Sec. 109) and is
no longer used in the context of adopting analyses. Additional
clarification is provided regarding reliance on programmatic documents,
to align with language added to NEPA, as amended in 2023. The terms
``incorporating'' or ``incorporating by reference'' continue to apply
and are included in the regulations.
Outlines best practices for reducing delay.
Emphasizes the importance of interdisciplinary preparation,
methodology, scientific accuracy, and disclosing information
availability.
Public involvement discussions are reduced to the most pertinent
points that encourage USDA subcomponents to consider the most effective
ways of engaging and informing the public, while allowing necessary
discretion on the methods to use given the nature of the proposal and
the public entities most likely to be interested or affected.
Emphasizes the need to eliminate duplication with State, Tribal,
and local procedures, outlines process for identifying lead, joint, and
cooperating agencies, promotes timely and unified Federal reviews, and
provides process
[[Page 29639]]
for resolving disagreements concerning major Federal actions.
Adds additional clarification on how USDA agencies should proceed
with unified documentation, as required by NEPA, where another Federal
agency is the lead agency. Specifies the agency official at USDA who
will determine when a disagreement needs to be elevated to CEQ when
there are interagency disagreements concerning the designation of a
lead or joint agency or disagreements over proposed major Federal
actions that might cause unsatisfactory environmental effects.
Outlines recommended approaches for preparing environmental
assessments and environmental impact statements for programmatic
actions and provides direction for relying on and reevaluating
programmatic (and non-programmatic) documents.
Outlines approaches for evaluating proposals for rules,
regulations, and legislation.
Specifies need to apply unique identification numbers to
environmental assessments and environmental impact statements.
Adds direction on how to proceed for emergencies, with a
distinction provided between ``immediate actions'' and ``urgent but not
immediate actions''. Some emergency authorization or emergency
procedure language previously included in agency-specific NEPA
regulations has been moved to this section in 7 CFR 1b, with much of
the language being revised, as described in the agency-specific
regulation changes included below. Where language and procedures were
essentially the same across agencies, these procedures are now
discussed only once. Where procedures differed necessarily across
agencies, these different procedures are included. Specifics as to some
wording changes that were made for agency-specific procedures are
discussed under the applicable agency-specific regulation, listed
below. Adds a general emergency action provision for agencies that did
not have such provisions in their regulations to coordinate on issuing
alternative arrangements for complying with NEPA when completing a
categorical exclusion or environmental assessment when significant
effects are not anticipated.
7 CFR 1b.10--Documents prepared by applicant or third party: This
section is added to read as indicated in 7 CFR 1b.10.
Adds procedures for environmental assessments and environmental
impact statements prepared by an applicant or third party. Specifies
responsibilities of USDA subcomponents when documentation is being
prepared by an applicant or third party. Recognizes that NEPA Sec.
107(f), 42 U.S.C. 4336a(f), allows an applicant or other third party
(e.g., contractor) to complete an environmental assessment or
environmental impact statement in whole or in part, under supervision
of a Federal agency. For purposes of the USDA NEPA regulations,
applicant or other third-party preparation is expanded to include, in
whole or in part, documentation for a finding of applicability and no
extraordinary circumstance for categorical exclusions requiring NEPA
documentation. This is to account for the various ways USDA
subcomponents currently work with applicants and third parties to
complete documentation associated with a proposal, which includes more
than just the preparation of environmental assessments and
environmental impact statements. Applicants often complete
documentation for actions that fit categorical exclusions requiring
NEPA documentation.
7 CFR 1b.11--Definitions and Acronyms: This section is added to
read as indicated in 7 CFR 1b.11.
Adds cross-references to key definitions from NEPA and carries over
some definitions from the 2020 CEQ NEPA Implementation Regulations,
with modifications made for some definitions such as: mitigation (or
mitigation measure) and significance.
``Mitigation'' (7 CFR 1b.11(a)(29)) was edited to clarify
mitigations are determined by the responsible official and are a
reactive response to the effects analysis and are documented in the
finding of no significant impact or record of decision. See further
discussion below on adding the term ``design criteria'' to the
definition section.
``Significance'' (7 CFR 1b.11(a)(50)) is defined as explained under
the changes made to section 7 CFR 1b.2.
Adds definitions for new terms introduced in the regulations, such
as: design criteria (or design elements or design features), emergency,
environmental review, extraordinary circumstances, finding of
applicability and no extraordinary circumstance, issue, level of NEPA,
NEPA process, notice of availability, proposal record, proposed action,
purpose and need, scale, scope, senior agency official, and
substantive.
The definition for ``design criteria'' (7 CFR 1b.11(a)(11)) is
added to demonstrate that when these criteria are added to proposed
actions or alternatives to achieve similar outcomes of ``mitigations''
(7 CFR 1b.11(a)(29)), they are added in response to an issue and
therefore once the issue has been addressed in this manner it is not an
issue that needs to be analyzed in detail. Design criteria are
proactive responses to issues identified early in the interdisciplinary
process of developing the proposed action and/or action alternatives or
when conducting preliminary effects analysis, whereas adding
``mitigations'' (or ``mitigation measures'') is a reactive response by
the responsible official to the effects analysis. The definition
clarifies that these two terms achieve similar outcomes (for example,
avoid or minimize adverse effects), yet apply in distinctly different
ways, and also facilitate analytic analysis.
The definition of ``emergency'' (7 CFR 1b.11(a)(13)) is added as
this term was used in some of the USDA agency-specific NEPA regulations
for emergency action provisions and the concept is carried forward into
the USDA NEPA regulations for ``immediate actions'' and ``urgent but
not immediate actions'' (7 CFR 1b.9(v) and (w)).
The definition of ``extraordinary circumstances'' (7 CFR
1b.11(a)(17)) is a concept carried forward from the now rescinded CEQ
NEPA regulations and is defined in the USDA NEPA regulations. Some USDA
agency-specific NEPA regulations included a definition of extraordinary
circumstances, while others did not. While these former definitions
served to inform the new definition, none of the previous definitions
were used in their entirety. The definition included in the USDA NEPA
regulations clarifies that an extraordinary circumstance is a unique
situation that exists in which actions that normally do not have
significant impacts--and are therefore categorically excluded from
documentation in an environmental assessment or environmental impact
statement--create uncertainty whether the degree of the effect is
significant. The CEQ NEPA regulations and some USDA agency-specific
NEPA regulations defined or discussed extraordinary circumstances in a
way that created confusion as to when an extraordinary circumstance
existed. Some interpreted an extraordinary circumstance to be present
when a resource considered for extraordinary circumstances, such as
federally listed threatened or endangered species or wetlands, was
present. It is not the mere presence of a resource that means an
extraordinary circumstance exists, but rather the cause-effect
relationship between the proposed actions and the resource considered.
An extraordinary circumstance exists only when there is reasonable
uncertainty about whether
[[Page 29640]]
the degree of the impact is significant for the resource being
considered.
The definition of ``finding of applicability and no extraordinary
circumstance'' (7 CFR 1b.11(a)(19)) is added, as the USDA NEPA
regulations clarify that the use of a categorical exclusion is
dependent on determinations that a category (or categories) applies to
the proposed actions and no extraordinary circumstance exists.
The definition of ``issue'' (7 CFR 1b.11(a)(23)) is added to
promote analytic analysis that is focused on cause-effect relationships
between the actions proposed (cause) and the reasonably foreseeable
impacts (effect) on resources found in the affected environment. The
purpose of considering issues is to identify opportunities to modify
the proposed action, develop an action alternative, or supplement,
improve, or modify the analysis to better understand the effects.
The definitions of ``level of NEPA'' and ``NEPA process'' (7 CFR
1b.11(a)(27) and (30)) are added as these terms are used in the
regulations in several instances to refer to the different levels of
NEPA or process to be completed, those being categorical exclusion,
environmental assessment, or environmental impact statement. This also
helps clarify that using a categorical exclusion is a NEPA process, as
some entities in the past have erroneously alleged that an agency's use
of a categorical exclusion is ``circumventing NEPA''.
The definition of ``proposal record'' (or ``project record'') (7
CFR 1b.11(a)(38)) is added to standardize this term and concept for
USDA as it is a key piece of the NEPA and integrated environmental
review processes that can be overlooked. A well-organized and complete
proposal record also can facilitate paperwork reduction.
The definition of ``proposed action'' (7 CFR 1b.11(a)(39)) is added
to differentiate this from a proposal. ``Proposal'' is defined by NEPA
as ``a proposed action at a stage when an agency has a goal, is
actively preparing to make a decision on one or more alternative means
of accomplishing that goal, and can meaningfully evaluate its
effects''. The definition of proposed action takes this a step further
to indicate this includes ``design criteria'' (where these apply) and
that this is the version submitted for final interdisciplinary review
and effects analysis. Defining a proposed action also can help
responsible officials better determine when timelines start for
environmental assessments and environmental impact statements to track
and meet the deadlines now established in NEPA.
The definition of ``purpose and need'' (7 CFR 1b.11(a)(41)) is
added as this is a term used in NEPA (the Act itself) but not defined.
The definition clarifies the purpose and need explains the ``why here,
why now'' rationale for proposing an action, and that this also can
incorporate the goals of an applicant (when applicable) and the
subcomponent's statutory duty to review an application for
authorization.
The definitions of ``scale'' and ``scope'' (7 CFR 1b.11(a)(47) and
(48)) are added as these terms are used in the USDA NEPA regulations
when referring to the scale and scope of actions proposed and issues
considered for analysis.
The definition of ``substantive'' (7 CFR 1b.11(a)(53)) is added to
promote analytic analysis that focuses on information that meaningfully
informs the consideration of reasonably foreseeable impacts on the
human environment and the resulting significance determination or
decisions on how to proceed. Not all issues need the same level of
attention and analysis. Rather, it is substantive issues that should be
the focus when conducting effects analysis and making iterative and
final decisions on how to design, analyze, and implement an action.
Adds a list of acronyms (7 CFR 1b.11(b)) that may appear throughout
7 CFR 1b or that may be used when applying 7 CFR 1b during the
applicable NEPA process.
7 CFR 1b.12--Severability: This section is added to read as
indicated in 7 CFR 1b.12.
Adds a severability clause that clarifies that the sections of the
USDA NEPA Implementing Regulations are separate and severable from one
another and describes how other sections or portions may remain valid
if another section or portion is stayed or determined to be invalid.
3. Agricultural Research Service Procedures for Implementing NEPA
(Previously at 7 CFR 520)
The Agriculture Research Service (ARS) NEPA regulations are
rescinded in full except for the following sections that have been
consolidated in the 7 CFR 1b regulations: 7 CFR 520.5(b)(2)(i) and
(iii).
--7 CFR 520.5(b)(2)(i) and (iii) were moved to examples of activities
under one of the categorical exclusions previously codified at 7 CFR
1b.3 (department-wide CEs previously under section 1b.3 are now moved
to section 1b.4). (now 7 CFR 1b.4(c)(3)(iv) and (v))
4. Animal and Plant Health Inspection Service NEPA Implementing
Procedures (Previously at 7 CFR 372)
The Animal and Plant Health Inspection Service's (APHIS) NEPA
Implementing Procedures at 7 CFR part 372 are rescinded in full except
for the following sections that have been moved to 7 CFR part 1b: 7 CFR
372.5(c)(1) through (3) and 7 CFR 372.5(c)(5) (any previously reserved
sections are removed as new numbering is applied under 7 CFR 1b); and 7
CFR 372.10(b). Previously codified APHIS categorical exclusions are now
found at 7 CFR 1b.4(c)(08) through (11).
Minor changes were made to former 7 CFR 372.5(c)(1) through (3) and
7 CFR 372.5(c)(5) as follows when they were moved over to 7 CFR 1b:
--372.5(c)(1)(i): some terms were removed from this paragraph and added
them to examples of activities under department-wide CEs previously
codified at 7 CFR 1b.3 (department-wide CEs previously under Sec. 1b.3
are now moved to Sec. 1b.4). The example now reads as:
``Identifications, inspections, surveys, sampling, testing, and
monitoring that does not cause physical alteration of the
environment.'' (now 7 CFR 1b.4(c)(3)(i))
--372.5(c)(1)(ii): revised ``Examples of routine measures include'' to
now read as ``Examples of routine measures include but are not limited
to''. (now 7 CFR 1b.4(c)(8)(ii))
--372.5(c)(2)(i)(B) and (D) were moved to examples of activities under
one of the categorical exclusions previously codified at 7 CFR 1b.3
(department-wide CEs previously under Sec. 1b.3 are now moved to Sec.
1b.4). (now 7 CFR 1b.4(c)(3)(ii) and (iii))
--372.5(c)(2)(i) and 372.5(c)(5): revised ``Examples are'' to now read
as ``Examples include but are not limited to''. (now 7 CFR 1b.4(c)(9)
and (11))
--372.5(c)(3)(ii) and (iii): modified by removing erroneous ``or'' in
(ii) and removing erroneous ``and'' in (iii) and replacing it with
``or''. (now 7 CFR 1b.4(c)(10))
Former section 372.10(b) had more extensive changes when it was
moved to 7 CFR 1b.9(w)(1)(i). It was revised as follows:
--Eliminates language regarding environmental assessments as this
discussion is now covered for all USDA agencies; uses more generalized
language about who can approve alternative arrangements for emergency
actions not anticipated to have a reasonably foreseeable significant
effect given the ongoing
[[Page 29641]]
organizational restructuring at USDA that could affect office names or
staff position titles; and, eliminates the requirement to document and
report to CEQ the alternative arrangements approved at the agency
level. (USDA agencies will continue to coordinate with CEQ on
alternative arrangements for those activities anticipated to have
reasonably foreseeable significant effects.)
5. Farm Service Agency General Implementing Regulations for NEPA
(Previously at 7 CFR 799)
The Farm Service Agency (FSA) NEPA regulations are rescinded in
full except for the following sections that have been moved to the 7
CFR 1b regulations: 7 CFR 799.12(b), 7 CFR 799.31(b)(1)(2) and (4)
through (6), 7 CFR 799.32(d)(1)(2) and (3), 7 CFR 799.32(e)(1)(2) and
(3). Previously codified FSA categorical exclusions are now found at 7
CFR 1b.4(c)(12) through (16) and (30) and (d)(1) and (2).
7 CFR 799.12(b) was moved to 7 CFR 1b.9(v) and (w) but is
incorporated into the overall Department guidance for Emergencies, with
one paragraph 1b.9(w)(1)(ii) clarifying how the FSA should coordinate
alternative arrangements for urgent actions not anticipated to have
reasonably foreseeable significant effects.
Categorical Exclusions (CEs) moved to 7 CFR 1b.4(c) (CEs not
requiring documentation under NEPA) because they are historically low
impact actions:
--7 CFR part 799.31(b)(1) Loan Actions (combined with other ``Loan
Actions'' categories under one category at 7 CFR 1b.4(c)(30))
--7 CFR part 799.31(b)(2) Repair, improvement, or minor modification
actions (now 7 CFR 1b.4(c)(13))
--7 CFR part 799.31(b)(3) Administrative actions are deleted as a
category and added as examples under one of the categorical exclusions
previously codified at 7 CFR 1b.3. (now 7 CFR 1b.4(c)(1)(i) through
(iii))
--7 CFR part 799.31(b)(4) Planting actions. (now 7 CFR 1b.4(c)(14))
--7 CFR part 799.31(b)(5) Management actions. (now 7 CFR 1b.4(c)(15))
--7 CFR part 799.31(b)(6) Other FSA actions (now labeled
``Miscellaneous FSA Actions''). 799.31(b)(6)(vi) is revised to read as:
Safety net programs without ground disturbance. ``Without ground
disturbance'' was added as a clarifier, as the sentence providing this
clarification is not moved to 7 CFR 1b. 7CFR 799.31(b)(6)(x) is removed
because the adoption provision is no longer needed here. (now 7 CFR
1b.4(c)(16))
--7 CFR 799.32(d)(1) Loan Actions (combined with other ``Loan Actions''
categories under one category at 7 CFR 1b.4(c)(30))
--7 CFR 799.32(d)(2) Minor management, construction, or repair actions
(now 7 CFR 1b.4(c)(12))
--7 CFR 799.32(d)(3) Other FSA actions (combined in list with
categories labeled ``Miscellaneous FSA Actions'') (now 7 CFR
1b.4(c)(16))
--799.32(d)(3)(iv): Removed as it is duplicative to another category
already included in the now combined ``Miscellaneous FSA Actions'' list
and the phrase ``(this proposed action, in particular, has the
potential to cause effects to historic properties and therefore
requires analysis under section 106 of NHPA (54 U.S.C. 306108), as well
as under the ESA and wetland protection requirements)'' is not
necessary as the determination for when compliance with NHPA (National
Historic Preservation Act) and ESA (Endangered Species Act) is needed
is appropriately done on a case-by-case or programmatic basis and is
not appropriate to include in NEPA regulations.
--7 CFR 799.32(e)(1) Loan Actions (combined with other ``Loan Actions''
categories under one category at 7 CFR 1b.4(c)(30))
CEs moved to 7 CFR 1b (CEs requiring documentation under NEPA):
--7 CFR 799.32(e)(2) Construction or ground disturbance actions (now 7
CFR 1b.4(d)(1))
--7 CFR 799.32(e)(3) Management and planting type actions (now 7 CFR
1b.4(d)(2))
FSA is applying the definition of major Federal action, as
established in the Fiscal Responsibility Act of 2023 (Pub. L. 118-5),
which also amended NEPA. The agency has determined that several types
of loan actions fall within one or more of the exclusions in the
definition of major Federal actions and will be treating them as such;
however, it's possible not all types of loans fall within the
exclusions. For this reason, FSA is retaining the existing categories
titled ``Loan Actions''. FSA will continue to make case-by-case or
programmatic determinations as to whether certain loans and potentially
other programs or actions meet the statutory definition of major
Federal action. Justifications for these and any other programmatic
determinations will be made in agency-issued guidance.
6. National Institute of Food and Agriculture Implementation of NEPA
Regulations (Previously at 7 CFR 3407)
The National Institute of Food and Agriculture (NIFA) regulations
are rescinded in full except for the following sections that have been
moved to the 7 CFR 1b regulations: 7 CFR 3407.6(a)(2)(i)(A) and (C).
--7 CFR 3407.6(a)(2)(i)(A) and (C) were moved to examples of activities
under one of the categorical exclusions previously codified at 7 CFR
1b.3 (department-wide CEs previously under Sec. 1b.3 are now moved to
Sec. 1b.4). (now 7 CFR 1b.4(c)(3)(iv) and (v))
7. Natural Resources Conservation Service Compliance With NEPA
Regulations (Previously at 7 CFR 650)
The Natural Resources Conservation Service (NRCS) regulations are
rescinded in full except for the following sections that have been
consolidated in the 7 CFR 1b regulations: 7 CFR 650.6(a) and (d)(1)
through (21). Previously codified NRCS categorical exclusions are now
found at 7 CFR 1b.4(d)(3) through (23).
Minor changes were made to the categorical exclusion sections as
follows when they were moved over to 7 CFR 1b:
--7 CFR 650.6(a): This section was moved to examples of activities
under one of the categorical exclusions previously codified at 7 CFR
1b.3. (now 7 CFR 1b.4(c)(3)(vi) through (x))
--7 CFR 650.6(d)(14): Revised as follows. In the phrase ``Work will be
confined to the existing footprint of the dam . . .'', ``existing'' is
replaced with ``construction'' to now read as ``Work will be confined
to the construction footprint of the dam''. (now 7 CFR 1b.4(d)(16))
--7 CFR 650.6(d)(15): Revised as follows. In the phrase ``Work will be
confined to the dam or abutment areas . . .'', the language
``construction footprint of the'' was inserted, to now read as ``Work
will be confined to the construction footprint of the dam or abutment
areas . . .'' (now 7 CFR 1b.4(d)(17))
--7 CFR 650.6(d)(16): Revised as follows. In the phrase ``Repairing
embankment slope failures on structures . . .'', the language ``or
reshaping the embankment'' was inserted to now read as ``Repairing
embankment slope failures on structures or reshaping the embankment. .
. .'' (now 7 CFR 1b.4(d)(18))
--7 CFR 650.6(d)(17): Revised as follows. In the phrase ``Work will be
[[Page 29642]]
confined to the existing dam and abutment areas . . .'', ``existing''
is replaced with ``construction footprint of'' to now read as ``Work
will be confined to the construction footprint of the dam and abutment
areas. . . .'' (now 7 CFR 1b.4(d)(19))
These CEs focus on routine actions for the repair or updating of
existing structures constructed under the Watershed Protection and
Flood Prevention Act, Public Law 83-566, or the Flood Control Act,
Public Law 78-534. The purpose of rehabilitation projects is to comply
with current State safety standards and Federal performance standards,
as well as the protection of environmental values associated with the
project's structures.
Upon review of the substantiation records associated with the
development of these CEs and the NRCS staff's professional knowledge
and experience, NRCS determined it needed additional clarity to better
define the appropriate scope of these CEs. The term ``existing,'' in
reference to the dam structure, leads to an overly restrictive
interpretation that does not meet standard maintenance procedures
associated with rehabilitation actions, thus unintentionally
restricting the scope and application of the CEs. NRCS completed an
analysis of 51 recent site-specific dam rehabilitation EAs, all
resulting in a finding of no significant impact. NRCS concluded that 34
of these projects could have been categorically excluded because the
proposed action was limited to the dam construction footprint, which
was previously disturbed during construction. The remaining 17 project-
specific EAs did not meet the CE criteria because the rehabilitation
construction footprint exceeded the original dam construction footprint
or involved other actions outside the scope of the CE. These CEs are
limited to developed areas, so this modification is not expected to
create any new development. Therefore, NRCS determined that when
applying these CEs, clarifying the parameters to account for the
previously disturbed areas surrounding the finished dam, abutment, or
dam slope does not typically result in a significant impact on the
human environment and, therefore, justifies changes to the CEs.
The minor modifications reflect an effort by NRCS to provide
further clarity and provide transparency regarding the activities,
including the associated workspace, covered by the CEs. For actions
under these categorical exclusions, NRCS personnel will continue to
evaluate proposed actions for potential impacts and extraordinary
circumstances, including responsibility of the agency to comply with
the National Historic Preservation Act and the Endangered Species Act.
Additionally, NRCS considered whether 7 CFR 650.6(c)(3) needed to
be retained in the 7 CFR 1b as this section outlined conditions that
must be met before using the categorical exclusions listed at Sec.
650.6(d). Section 650.6(c)(3)(i) through (iii) do not warrant separate
inclusion on the list because each of these is already addressed by the
NRCS conservation practice standards and planning policies, which set
forth minimum criteria and technical requirements for conservation
projects nationwide. These standards are regularly updated through a
rigorous national review process and require that all conservation
practices be designed to mitigate soil erosion, sedimentation, and
downstream flooding. Likewise, the standards mandate that disturbed
areas be vegetated with adapted, non-invasive, and non-noxious species
to ensure ecological compatibility and long-term site stability.
Furthermore, NRCS standards and technical guides are built upon current
industry standard engineering principles of natural stream dynamics and
processes and are subject to ongoing review to reflect advances in
resource management and restoration science.
Additionally, Sec. 650.6(c)(3)(iv), ``incorporate the applicable
NRCS conservation practice standards as found in the Field Office
Technical Guide,'' is already built into NRCS planning procedures.
These procedures specifically require an evaluation of alternative
methods to meet conservation objectives and minimize negative impacts
on the environment.
Lastly, Sec. 650.6(c)(3)(v) (``Not require substantial dredging,
excavation, or placement of fill''); and (vi) (``Not involve a
significant risk of exposure to toxic or hazardous substances'') are
already evaluated as part of the agency's Determination of Significance
or Extraordinary Circumstances, which must be considered by the
agency's Responsible Federal Official as part of the environmental
review analysis.
NRCS has found that including these conditions as sideboards to
applying the categorical exclusions is redundant and could create
unnecessary regulatory overlap, as the NRCS Field Office Technical
Guide and national standards already require adherence to these
criteria as a prerequisite for all conservation planning, design, and
implementation efforts. Recent coordination with another Federal agency
adopting some of NRCS' categorical exclusions reached the same
conclusion as other Federal agencies have similar agency-specific
conservation or best management practices as those outlined by NRCS.
8. Rural Development Environmental Policies and Procedures (Previously
at 7 CFR 1970)
The Rural Development regulations are rescinded in full except for
the following sections that have been moved to the 7 CFR 1b
regulations: 7 CFR 1970.11(b); 7 CFR 1970.18(b); 1970.53(a)(7), (c)(1)
through (c)(7) and (c)(9), (d)(2) through (11), (e), (f), and (g);
1970.54(a) through (c). Previously codified Rural Development
categorical exclusions are now found at 7 CFR 1b.4(c)(17) and (18) and
(d)(24) and (25).
Through this interim final rule, Rural Development is rescinding
the process by which it determined which actions require environmental
review as previously codified at 7 CFR 1970.8(c) and implementing the
definition of major Federal action as established in the Fiscal
Responsibility Act of 2023 (Pub. L. 118-5), which also amended NEPA.
The agency has determined that several types of actions fall within one
or more of the exclusions in the definition of major Federal action,
and will be treating them as such. Rural Development will make case-by-
case or programmatic determinations of which programs or actions do not
meet the statutory definition of major Federal action. Justifications
of programmatic determinations will be made in agency-issued guidance.
Due to these changes, Rural Development is removing several CEs for
actions that the agency has determined do not meet the definition of
major Federal action under NEPA and, therefore, do not require NEPA
analysis. As such, actions previously codified at 7 CFR 1970.53(a)(1)
through (a)(6), (b)(1) through (b)(3), (c)(8), (c)(9), (d)(1), and (f)
through (h); and 1970.55 are being removed.
7 CFR 1970.11(b) is moved to 7 CFR 1b.2(h)(3) verbatim except for
the addition of the following phrase at the beginning of the section to
indicate it applies to the Rural Development mission area: ``When
agencies under the Rural Development mission area are obligating
funds''.
7 CFR 1970.18(b) is revised and moved to 7 CFR 1b.9(w)(1)(iii) to
align with the overarching Department guidance for Emergencies. Adds
clarification for how to coordinate to get alternative arrangements
approved for emergency actions not anticipated to have a reasonably
foreseeable significant effect.
[[Page 29643]]
7 CFR 1970.53(d)(4) is revised to change the phrase ``Includes pole
replacements but does not include overhead-to-underground conversions''
to now read as ``Includes pole replacements and overhead-to-underground
conversions''. (Now 7 CFR 1b.4(c)(18)(x).) The equipment used in
overhead-to-underground is the same equipment used to install
telecommunication fiber, which is covered by other agency categorical
exclusions (for example, 7 CFR 1970.53(d)(1) and (2) for both aerial
and buried fiber cable within existing rights-of-way). The action of
installing underground electric is normally does not have a significant
effect on the environment when performed in an existing previously
disturbed utility right-of-way. Pole replacements and overhead-to-
underground conversions are not significant construction activities
with the potential to cause significant effects on the environment when
constructed within a previously disturbed right-of-way and do not
always require environmental documentation, provided that the
activities are reviewed to rule out extraordinary circumstances. This
revises the previous codification at 7 CFR 1970.53(d)(4), which
required an environmental report. Since 2016, the agency has reviewed
numerous projects of this type (overhead-to-underground conversion) as
a categorical exclusion without significant impact on the environment
and therefore has determined they were improperly excluded in previous
rulemaking [March 2, 2016, 81 FR 11032].
7 CFR 1970.54(b)(2)(i) is revised to change the phrase ``Within one
mile of currently served areas irrespective of the percent of increase
in new capacity'' to now read as ``Within 20 miles of currently served
areas irrespective of the percent of increase in new capacity''. (Now 7
CFR 1b.4(d)(24)(ii)(B).) The change from one (1) mile to twenty (20)
miles is based on the review and analysis of environmental assessments
issued by the agency, as well as other Federal agency categorical
exclusions. In addition, the removal of small-scale corridor
development that increased capacity by more than 30 percent of the
existing user population as a threshold requiring an environmental
assessment, as previously codified at 7 CFR 1970.54(b)(2)(ii), is based
on the review and analysis of environmental assessments issued by the
agency, which documents that making the modifications will not normally
result in significant effects on the environment. Rural Development has
the administrative record of applying 7 CFR1970.53(b)(2) since the
promulgation of 7 CFR 1970 and has found no instances where the review
was elevated to an environmental assessment due to extraordinary
circumstances. Further, the agency has reviewed records for over 100
environmental assessments completed for projects that proposed
expansion of the distribution or collection system past one mile of the
currently served areas or otherwise increased the capacity by more than
30 percent of the existing user population and found all of these to
have concluded in a finding of no significant impact on the
environment. As none of these projects has documented a significant
impact on the environment, the agency is removing the population
threshold.
7 CFR 1970.54(a)(4) is revised to remove the last sentence in the
following: ``Infrastructure to support utility systems such as water or
wastewater facilities; headquarters, maintenance, equipment storage, or
microwave facilities; and energy management systems. This does not
include proposals that either create a new or relocate an existing
discharge to or a withdrawal from surface or ground waters, or cause
substantial increase in a withdrawal or discharge at an existing
site.'' (Now 7 CFR 1b.4(d)(24)(i)(D).) The agency has reviewed more
than 300 environmental assessments for the activities described in the
last sentence and found all of these to have concluded in a finding of
no significant impact on the environment. Therefore, the agency has
determined these activities do not normally result in a reasonably
foreseeable significant effect and it is now appropriate for these
actions to occur as part of using this category.
9. U.S. Forest Service NEPA Compliance Regulations (Previously at 36
CFR 220)
The U.S. Forest Service regulations are rescinded in full except
for the following sections that are moved to the 7 CFR 1b regulations:
36 CFR 220.6(d)(1) through (12) and (e)(1) through (25) (any previously
reserved sections are removed); and 220.4(b)(2). Previously codified
Forest Service categorical exclusions are now found at 7 CFR
1b.4(c)(19) through (29) and (d)(26) through (47).
Minor changes were made to the categorical exclusion sections, 36
CFR 220.6(d) and (e), as follows when they were moved over to 7 CFR
1b.4(c) and (d): Generalized the requirement, or lack thereof, for
documentation for categorical exclusions. The categorical exclusions
requiring documentation did not change. Where the discussion of
documentation used Forest Service-specific terminology (for example,
decision memo), this terminology has been removed, and the 7 CFR 1b
regulations just state that documentation is required. This aligns with
the 7 CFR 1b regulations, which establish consistent categorical
exclusion documentation requirements for all USDA agencies.
36 CFR 220.6(e)(9) In the phrase, ``Implementation or modification
of minor management practices to improve allotment condition or animal
distribution when an allotment management plan is not yet in place'',
the following language was removed: ``when an allotment management plan
is not yet in place''. (Now 7 CFR 1b.4(d)(33).) An allotment management
plan (AMP) is a document that specifies how the components of the
program action will be implemented to reach a given set of objectives.
An AMP is prepared in consultation with the permittee(s) associated
with the allotment, and it prescribes the manner and extent to which
livestock operations will be conducted; describes the type, location,
and construction specifications for rangeland improvements; and
contains such other provisions relating to livestock grazing on the
associated allotment (see 36 CFR 222.1(b)). AMPs are created after a
unit's land management plan and a site-specific grazing decision, both
of which undergo their own NEPA analysis. An AMP is the outcome of the
grazing decision process. The presence or absence of an AMP does not
change the on-the-ground effects of a rangeland improvement because
AMPs do not override land management plans or grazing decisions. As
such, the revision of language in the categorical exclusion is a minor
change and technical in nature and does not modify the way rangeland
improvements are designed or implemented, nor what is authorized in the
land management plan or the grazing decision. Currently, most Forest
Service grazing allotments have AMPs in place, making this CE
unavailable to them. The proposed minor wording change will allow
Federal agencies to efficiently maintain or improve rangeland
conditions and animal distribution by eliminating a restriction based
on paperwork requirements rather than indicators of whether the action
may have significant effects, as was considered when initially
establishing the category.
36 CFR 220.6(e)(16) was revised to clarify that the land management
plan approval document required by 36 CFR part 219 satisfies the
documentation
[[Page 29644]]
requirement for this categorical exclusion. (Now 7 CFR 1b.4(d)(38).) In
the phrase, ``. . . are outside the scope of this category and shall be
considered separately under Forest Service NEPA procedures,'' ``Forest
Service'' was replaced with ``USDA'' to now read as, ``. . . are
outside the scope of this category and shall be considered separately
under USDA NEPA procedures.'' An update to recordkeeping procedures
does not change the significance determination made when establishing
this CE.
36 CFR 220.4(b)(2) was revised as follows when moved to 7 CFR
1b.9(w)(1)(iv): eliminates language regarding categorical exclusions,
environmental assessments, and findings of no significant impact as
this discussion is now covered for all USDA agencies; and, uses more
generalized language about the process for approving alternative
arrangements for emergency actions not anticipated to have reasonably
foreseeable significant effects given the ongoing organizational
restructuring at USDA that could affect office names and staff position
titles.
The Forest Service recognizes that the rescission of the 36 CFR 220
regulations has implications on the 36 CFR 218 regulation for the
project-level pre-decisional administrative review process. Until the
36 CFR 218 regulation is revised to align with 7 CFR 1b, the Forest
Service will continue to apply 36 CFR 218 as currently required. While
the 7 CFR 1b regulations do not include a ``decision notice'' for
environmental assessments, the revised regulations do clarify at 7 CFR
1b.6(c) that, ``If a statute or regulation explicitly requires a
decision document to approve actions analyzed in an environmental
assessment, the finding of no significant impact can be retitled to
indicate its function as a decision document''. This is to account for
continued application of the 36 CFR 218 regulations for environmental
assessments that required issuance of a decision notice under the 36
CFR 220 regulations (Sec. 220.7(c)).
C. Transition Period for USDA NEPA Regulations
The Department intends to provide USDA subcomponents with
discretion to determine which NEPA procedures to apply to individual
proposals, given the widely varying circumstances and stages of pending
NEPA analyses. To ensure an orderly transition without undue impact on
the USDA mission, USDA subcomponents have discretion to continue using
the versions of USDA and agency-specific NEPA regulations in place
before publication of this interim final rule, as well as the 2020
version of the CEQ NEPA regulations, where it makes sense for proposals
that are at a certain stage in the applicable NEPA process (categorical
exclusion, environmental assessment, or environmental impact
statement). To the extent any of these prior regulations conflict with
the statute, as amended by the Fiscal Responsibility Act in 2023 or the
U.S. Supreme Court decision in Seven County Infrastructure Coalition v.
Eagle County, Colorado, 145 S. Ct. 1497 (2025), the statute governs.
USDA subcomponents also have the discretion to begin applying the USDA
NEPA regulations, as revised, effective immediately upon publication of
this interim final rule where it makes sense to do so for new proposals
and applications, or for existing proposals or applications that are in
the early stages of the applicable NEPA process and can easily
transition to using the revised USDA NEPA regulations. Upon the
effective date of a final rule, USDA subcomponents will be expected to
apply the revised 7 CFR 1b when initiating proposals and accepting new
applications. The final rule will contain additional transition
language.
III. Request for Comments
A. Notice-and-Comment Rulemaking Is Not Required
USDA is revising its prior procedures and practices for
implementing NEPA, a ``purely procedural statute'' which ``simply
prescribes the necessary process for an agency's environmental review
of a project''--a review that is, even in its most rigorous form,
``only one input into an agency's decision and does not itself require
any particular substantive outcome.'' Seven County, 145 S. Ct., at
1510-11 (internal quotation marks omitted). ``NEPA imposes no
substantive constraints on the agency's ultimate decision to build,
fund, or approve a proposed project,'' and ``is relevant only to the
question of whether an agency's final decision--i.e., that decision to
authorize, fund, or otherwise carry out a particular proposed project
or activity--``was reasonably explained.'' Id. at 1511. Procedures for
implementing a purely procedural statute must be, by their nature,
procedural rules. And even if that were not universally true, the new
rules adopted in this notice are purely procedural.
Thus, unsurprisingly, both the prior and revised versions of USDA's
NEPA regulations do not dictate what outcomes such consideration must
produce, nor do they impose binding legal obligations on private
citizens. Rather, they prescribe how USDA will conduct NEPA reviews:
detailing the structure of environmental impact statements, specifying
submission requirements, and directing the timing of public comment
periods. These are procedural provisions, not substantive environmental
ones. Thus, because procedural rules do not require notice and comment,
they do not require notice and comment to be revised. See 5 U.S.C.
553(b)(A).
Moreover, even if (and to the extent that) USDA's regulations are
not procedural rules, they may be characterized as interpretive rules
or general statements of policy under 5 U.S.C. 553(b)(A). An
interpretive rule provides an interpretation of a statute, rather than
make discretionary policy choices that establish enforceable rights or
obligations for regulated parties under delegated congressional
authority. The definitions section at 7 CFR 1b.11, for instance, may be
classified as such. General statements of policy, meanwhile, provide
notice of an agency's intentions as to how it will enforce statutory
requirements, again without creating enforceable rights or obligations
for regulated parties under delegated congressional authority. 7 CFR
1b.1 and 1b.2, for instance, may be classified as general statements of
policy. Both of these types of agency actions are expressly exempted
from notice and comment by statute. 5 U.S.C. 553(b)(A).
Accordingly, although USDA is voluntarily providing notice and an
opportunity to comment on this interim final rule, it has determined
that notice-and-comment procedures prior to issuance are not required.
The fact that USDA previously undertook notice-and-comment rulemaking
in promulgating these regulations is immaterial. As the Supreme Court
has held, where notice-and-comment procedures are not required, prior
use of them in promulgating a rule does not bind the agency to use such
procedures in making future changes. See Perez v. Mortg. Bankers Ass'n,
575 U.S. 92, 101 (2015).
B. USDA Has Good Cause for Proceeding With an Interim Final Rule
Moreover, USDA also finds that, to the extent that prior notice and
solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the ``good cause'' exceptions in 5
U.S.C. 553(b)(B) and (d). The APA authorizes agencies to issue
regulations without notice and public comment when an agency finds, for
[[Page 29645]]
good cause, that notice and comment is ``impracticable, unnecessary, or
contrary to the public interest,'' 5 U.S.C. 553(b)(B), and to make the
rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As
discussed in Sections I and II, above, USDA's prior rules were
promulgated as a ``supplement[ ]'' to the Council on Environmental
Quality's (CEQ's) NEPA regulations, and USDA also ``adopt[ed]'' the
CEQ's regulations by incorporation. 7 CFR 1b.1(a) Following the
rescission of CEQ's regulations, USDA's current rules are left to
supplement a NEPA framework that no longer exists. USDA, thus far and
as a temporary, emergency measure, has been continuing to operate under
its prior procedures as if the CEQ NEPA framework still existed. This
is not, however, tenable. As soon as proper procedures are available--
which they are now--this makeshift framework needs to be rescinded
immediately.
That being so, rescinding the old procedures immediately without
replacing them could create a vacuum that would inflict immense
uncertainty on agencies and regulated parties and potentially grind all
projects under USDA's purview to a halt. So, pairing the rescission
with a new structure immediately is absolutely critical. Because of
this need for speed and certainty, notice-and-comment is, to the extent
it was otherwise required at all, impracticable and contrary to the
public interest.
For the same reasons stated in the present section, above, USDA
finds that ``good cause'' exists under 5 U.S.C.Sec. 553(d)(3) to waive
the 30-day delay of the effective date that would otherwise be
required. This interim final rule will accordingly be effective
immediately.
C. USDA Voluntarily Solicits Comment
As explained above, comment is not required prior to issuance
because USDA's NEPA procedures were and are procedural and because,
even if comment were otherwise required under the APA, good cause
exists to forego it. Nevertheless, USDA has elected to voluntarily
solicit comment on this interim final rule and encourages public
comments on all aspects of this interim final rule. However, USDA
emphasizes that reconsideration of CEQ rulemakings and actions, for
example, CEQ's determination to rescind its NEPA regulations, are
beyond the scope of this interim final rule. USDA is not soliciting
comment on any of CEQ's prior rulemakings or amendments to CEQ's NEPA
regulations. Nor does this interim final rule take a position on the
Department's or any USDA agency's prior interpretations of NEPA's
procedural requirements. Comments are requested for 30 days and must be
submitted timely by July 30, 2025 to receive proper consideration by
the Department. The Department may, after consideration of comments
received, make changes accordingly to the interim final rule.
IV. Regulatory Certifications
A. Regulatory Planning and Review
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether a regulatory action is significant as
defined by E.O. 12866 and will review significant regulatory actions.
OIRA has determined that this interim final rule is significant as
defined by E.O. 12866. E.O. 13563 reaffirms the principles of E.O.
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Department has developed the interim final rule consistent with
E.O. 13563.
B. Congressional Review Act
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this interim final rule as not a
major rule as defined by 5 U.S.C. 804(2). This procedural action, in
any event, is not a rule at all under 5 U.S.C. 804(3)(C).
C. National Environmental Policy Act
This interim final rule is procedural in its entirety and therefore
does not require preparation of a NEPA analysis. NEPA does not require
environmental analysis or documentation when establishing procedural
guidance. The determination that establishing department-level NEPA
procedures does not require NEPA analysis and documentation has been
upheld in Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55
(7th Cir. 2000).
D. Regulatory Flexibility Act
The Regulatory Flexibility Act only applies to general notices of
proposed rulemaking. Because a notice of proposed rulemaking is not
required for this action pursuant to 5 U.S.C. 553, or any other law, no
regulatory flexibility analysis has been prepared for this interim
final rule. See 5 U.S.C. 601(2), 603(a).
E. Federalism
The Department has considered this interim final rule under the
requirements of E.O. 13132, Federalism. The Department has determined
that the interim final rule conforms with the federalism principles set
out in this E.O.; will not impose any compliance costs on the States;
and will not have substantial direct effects on the States, on the
relationship between the Federal government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the Department has concluded that this interim
final rule will not have federalism implications, and no further
assessment of federalism implications is necessary.
F. Consultation and Coordination With Indian Tribal Governments
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, 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 the
distribution of power and responsibilities between the Federal
Government and Indian Tribes. This interim final rule does not impose
substantial direct compliance costs on Tribal governments and does not
preempt Tribal law. The Department has reviewed this interim final rule
in accordance with the requirements of E.O. 13175 and has determined
that this interim final rule will not have substantial direct effects
on 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. Therefore,
consultation and coordination with Indian Tribal governments is not
required for this interim final rule.
G. Energy Effects
The Department has reviewed the interim final rule under E.O.
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. The Department has determined that the
interim final rule will not constitute a significant energy action as
defined in E.O. 13211.
[[Page 29646]]
H. Civil Justice Reform
The Department has analyzed the interim final rule in accordance
with the principles and criteria in E.O. 12988, Civil Justice Reform.
Upon publication of the interim final rule, (1) all State and local
laws and regulations that conflict with the interim final rule or that
impede its full implementation will be preempted; (2) no retroactive
effect will be given to this interim final rule; and (3) it will not
require administrative proceedings before parties may file suit in
court challenging its provisions.
Under section 3(a) E.O. 12988, agencies must review their
regulations to eliminate drafting errors and ambiguities, draft them to
minimize litigation, and provide a clear legal standard for affected
conduct. Section 3(b) provides a list of specific issues for review to
conduct the reviews required by section 3(a). USDA has conducted this
review and determined that this interim final rule complies with the
requirements of E.O. 12988.
I. Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of the
interim final rule on State, local, and Tribal governments and the
private sector. The interim final rule will not compel the expenditure
of $100 million or more, adjusted annually for inflation, in any one
(1) year by State, local, and Tribal governments in the aggregate or by
the private sector. Therefore, a statement under section 202 of the Act
is not required. This action also does not impose any enforceable duty,
contain any unfunded mandate, or otherwise have any effect subject to
the requirements of 2 U.S.C. 1531-1538.
J. Paperwork Reduction Act
The interim final rule does not contain any recordkeeping or
reporting requirements, or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects
7 CFR Parts 1b and 372
Environmental impact statements.
7 CFR Part 520
Agricultural research, Environmental impact statements.
7 CFR Part 650
Environmental impact statements, Flood plains.
7 CFR Part 799
Environmental impact statements, Organization and functions
(Government agencies).
7 CFR Part 1970
Administrative practice and procedure, Buildings and facilities,
Environmental impact statements, Environmental protection, Grant
programs, Housing, Loan programs, Natural resources, Utilities.
7 CFR Part 3407
Agricultural research, Environmental impact statements, Grant
programs--agriculture.
36 CFR Part 220
Administrative practice and procedure, Environmental impact
statements, Environmental protection, National forests, Science and
technology.
Therefore, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301 and 42 U.S.C. 4321-4347, the Department
revises 7 CFR part 1b, and removes and reserves 7 CFR parts 372, 520,
650, 799, 1970, 3407, and 36 CFR part 220 as follows:
Title 7--Agriculture
0
1. Revise part 1b to read as follows:
PART 1b--NATIONAL ENVIRONMENT POLICY ACT
Sec.
1b.1 Purpose.
1b.2 Policy.
1b.3 Categorical exclusions and findings of applicability and no
extraordinary circumstance.
1b.4 Categorical exclusion of USDA subcomponents and actions.
1b.5 Environmental assessments.
1b.6 Finding of no significant impact.
1b.7 Environmental impact statements.
1b.8 Records of decision.
1b.9 Efficient and effective environmental reviews.
1b.10 Documentation prepared by applicant or third party.
1b.11 Definitions and acronyms.
1b.12 Severability.
Authority: 5 U.S.C. 301; 42 U.S.C. 4321 et seq.; E.O. 11514, 3
CFR, 1966-1970 Comp., p. 902, as amended by E.O. 11991, 3 CFR, 1978
Comp., p. 123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40 CFR 1507.3.
Sec. 1b.1 Purpose.
(a) Purpose. The purpose of this part is to outline the procedures
by which the U.S. Department of Agriculture (hereinafter USDA or the
Department) will integrate the National Environmental Policy Act (NEPA)
into decision-making processes. Specifically, this part: describes the
process by which USDA determines what actions are subject to NEPA's
procedural requirements and the applicable level of NEPA review;
ensures that relevant environmental information is identified and
considered early in the process in order to ensure informed decision
making; enables USDA to conduct coordinated, consistent, predictable
and timely environmental reviews; reduces unnecessary burdens and
delays; and implements NEPA's mandates regarding lead and cooperating
agency roles, page and time limits, and sponsor preparation of
environmental assessments and environmental impact statements.
(b) Procedural and interpretive rule. This part sets forth USDA's
procedures and practices for implementing NEPA. It further explains
USDA's interpretation of certain key terms in NEPA. It does not, nor
does it intend to, govern the rights and obligations of any party
outside the Federal government. It does, however, establish the
procedures under which USDA will typically fulfill its requirements
under NEPA.
(c) Applicability. This part is applicable to all mission areas,
agencies and general offices (hereinafter USDA subcomponent or
subcomponent) of the U.S. Department of Agriculture.
(d) Authority. NEPA imposes certain procedural requirements on the
exercise of USDA's existing legal authority in relevant circumstances.
Nothing contained in these procedures is intended, nor should be
construed to limit, USDA's other authorities or legal responsibilities.
Sec. 1b.2 Policy.
(a) USDA compliance with NEPA. It is the policy of USDA that all
USDA subcomponents' policies and programs shall be planned, developed,
and implemented to comply with Congress' directives in NEPA, as amended
by the Fiscal Responsibility Act of 2023, with the understanding that
NEPA is a purely procedural statute that imposes no substantive
environmental obligations or restrictions.
(1) The Under Secretary of Natural Resources and Environment (NRE)
is responsible for ensuring that these USDA NEPA regulations are
consistent with NEPA and will coordinate compliance for the Department.
(2) The Under Secretary of NRE may engage the Agricultural Council
on Environmental Quality (7 U.S.C. 5401, Pub. L. 101-624) when
developing, revising, or amending the necessary
[[Page 29647]]
processes to be used by the Office of the Secretary in reviewing,
implementing, and planning its NEPA activities, determinations, and
policies.
(3) The Under Secretary of NRE will consult with the Council on
Environmental Quality (CEQ) while developing or revising the USDA NEPA
regulations, as established in this part, in accordance with NEPA
section 102(2)(B), 42 U.S.C. 4332(B).
(b) Managing NEPA compliance. Within USDA, the Under Secretary of
NRE shall perform all of the duties and exercise all of the powers and
functions of the senior agency official to ensure compliance with NEPA
and the Department's policies for NEPA, including resolving
implementation issues.
(1) The senior agency official shall:
(i) Administer the implementation of NEPA for USDA, to include USDA
subcomponent adherence to this part and approving all revisions to this
part;
(ii) Centralize information technology and databases regarding
documentation and analyses required by NEPA and this part; and
(iii) Compile and submit the annual report to the Committee on
Natural Resources of the House of Representatives and the Committee on
Environment and Public Works of the Senate that identifies any
environmental assessment and environmental impact statement that such
lead agency did not complete by the deadline described in NEPA section
107(g), 42 U.S.C. 4336a(g) and provides an explanation for any failure
to meet such deadline.
(2) The senior agency official may delegate authority to another
mission area Under Secretary, or other USDA official for a subcomponent
with NEPA responsibilities, to perform the duties of the senior agency
official for the following:
(i) Ensuring that subcomponent staff have the resources and
competencies necessary to produce timely, concise, and effective
environmental documents;
(ii) Reviewing and approving the adoption or modification of any
subcomponent-specific NEPA guidance (as permitted in paragraph (c) of
this section);
(iii) Determining that an environmental impact statement is of
extraordinary complexity and therefore, pursuant to NEPA section
107(e)(1)(B), 42 U.S.C. 4336a(e)(1)(B), may exceed 150 pages but not
exceed 300 pages;
(iv) Reviewing and determining whether to authorize any deviation
from the time limit for preparation of environmental assessments and
environmental impacts statements, as established by NEPA section
107(g), 42 U.S.C. 4336a(g);
(v) Resolving implementation issues concerning documentation
prepared by applicants and third parties (e.g., contractors), as well
as ensuring NEPA analyses for proposals of private applicants or other
non-Federal entities commence at the earliest reasonable time;
(vi) Establishing subcomponent procedures for appropriate bonding
or other security;
(vii) Approving, or identifying a designee to approve, alternative
arrangements for complying with NEPA for emergency actions when a
reasonably foreseeable significant impact is not anticipated, as
described in Sec. 1b.9(w)(1);
(viii) Receiving or responding to written requests that a lead
agency be designated when requests are received from any Federal
agency, or any State, Tribal, or local agency, or private person
substantially affected by the absence of lead agency designation; and
(ix) Facilitating interagency disagreements concerning designation
of a lead or joint agency or disagreements over proposed major Federal
actions that might cause reasonably foreseeable significant impacts and
determining whether the disagreement needs elevated to the Council on
Environmental Quality.
(c) Subcomponent-specific NEPA guidance. It is the policy of USDA
that USDA subcomponents may establish subcomponent-specific NEPA
guidance when necessary to refine NEPA processes and practices to
address subcomponent-specific laws and program efficiency. Additional
subcomponent-specific guidance shall avoid creating unnecessary process
and should not repeat the requirements, definitions, or other matters
that are set forth in this part or the Act itself.
(d) Annual report to Congress. NEPA section 107(h)(1)(A) and (B),
42 U.S.C. 4336a(h)(1)(A) and (B), requires the head of each lead agency
to annually submit to the Committee on Natural Resources of the House
of Representatives and the Committee on Environment and Public Works of
the Senate a report that identifies any environmental assessment and
environmental impact statement that such lead agency did not complete
by the deadline described in NEPA section 107(g), 42 U.S.C. 4336a(g)
and provides an explanation for any failure to meet such deadline.
(1) The USDA Senior Agency Official (or their designee) shall
coordinate USDA subcomponent responses for the annual report to
Congress and consolidate these into one response that will be provided
to Congress to ensure departmental awareness and oversight of
environmental assessments and environmental impact statements not
completed within the required deadlines established in NEPA section
107(g), 42 U.S.C. 4336a(g).
(2) Each USDA mission area that contains subcomponents with NEPA
responsibilities will submit a report to the USDA Senior Agency
Official, or their designee, following guidance provided by the
Department on an annual basis.
(i) For those USDA mission areas with more than one subcomponent
contributing to the report, subcomponent responses shall be
consolidated and one response provided for the mission area.
(ii) The USDA Senior Agency Official, or their designee, shall
ensure the final report meets the requirements of NEPA section 107(h),
42 U.S.C. 4336a(h).
(e) Determining when NEPA applies. Threshold determinations of
whether NEPA applies may be made on a case-by-case or programmatic
basis and record keeping of the justifications for these determinations
is advisable. In determining whether NEPA applies, USDA will consider
only the proposed action or a project at hand. NEPA does not apply to a
proposal when:
(1) The proposal is not a ``major Federal action.'' The terms
``major'' and ``Federal action,'' each have independent force. NEPA
applies only when both of these two criteria are met. Such a
determination is inherently bound up in the facts and circumstances of
each individual situation, and is thus reserved to the judgment of USDA
in each instance;
(2) The proposal or decision is exempted from NEPA by law;
(3) The proposal or decision do not result in final Federal agency
action under the Administrative Procedure Act, see 5 U.S.C. 704, or
other relevant statute that also includes a finality requirement;
(4) In circumstances where Congress, by statute, has prescribed
decisional criteria with sufficient completeness and precision such
that a Federal agency retains no residual discretion to alter its
action based on the consideration of environmental factors, then that
function of USDA is nondiscretionary within the meaning of NEPA section
106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and
4336e(10)(B)(vii), respectively), and NEPA does not apply to the action
in question;
(5) Compliance with NEPA would clearly and fundamentally conflict
with
[[Page 29648]]
the requirements of another provision of law; or
(6) The proposal is an action for which another statute's
requirements serve the function of the Federal agency's compliance with
the Act.
(f) Determining the appropriate level of NEPA review. At all steps
in the following process, USDA subcomponents will consider the nature
of the proposal or project at hand, the potentially affected
environment, and the anticipated degree of effect:
(1) In accordance with NEPA section 106(b)(3), 42 U.S.C.
4336(b)(3), when making a determination on the level of review needed,
a USDA subcomponent:
(i) May make use of any reliable data source; and
(ii) Is not required to undertake new scientific or technical
research unless the new scientific or technical research is essential
to a reasoned choice among alternatives, and the overall costs and time
frame of obtaining it are not unreasonable.
(2) If a USDA subcomponent determines under Sec. 1b.2(e) that NEPA
applies to a proposal or decision, the subcomponent will then determine
the appropriate level of NEPA review in the following sequence and
manner:
(i) If the subcomponent has established, or adopted pursuant to
NEPA section 109, 42 U.S.C. 336c, a categorical exclusion that covers
the proposed action, the subcomponent will analyze whether to apply the
categorical exclusion to the proposed action and apply the categorical
exclusion, if appropriate, pursuant to Sec. 1b.3(f) and (g).
(ii) If another agency has already established a categorical
exclusion that covers the proposed action, the subcomponent will
consider whether to adopt that exclusion pursuant to Sec. 1b.3(c) so
that it can be applied to the proposed action at issue, and to future
activities or decisions of that type.
(iii) If the proposed action warrants the establishment of a new
categorical exclusion, or the revision of an existing categorical
exclusion, pursuant to Sec. 1b.3(b), the subcomponent will consider
whether to establish, or revise, and then apply the categorical
exclusion to the proposed action pursuant to Sec. 1b.3(f) and (g).
(iv) If a USDA subcomponent cannot apply a categorical exclusion to
the proposed action consistent with paragraph (f)(2)(i) through (iii)
of this section, the subcomponent will consider the proposed action's
reasonably foreseeable significant impacts consistent with paragraph
(f)(3) of this section, and then will:
(A) if the proposed action is not likely to have reasonably
foreseeable significant impacts or the significance of the impacts is
unknown, develop an environmental assessment, as described in Sec.
1b.5; or
(B) if the proposed action is likely to have reasonably foreseeable
significant impacts, develop an environmental impact statement, as
described in Sec. 1b.7.
(3) When considering whether the reasonably foreseeable impacts of
an action are significant, USDA subcomponents will consider and analyze
the potentially affected environment and degree of the effects of the
action.
(i) Potentially affected environment means the condition of the
physical, biological, social, and economic factors that may be impacted
by an action.
(ii) In considering the degree of effects, USDA subcomponents
should consider the following, as appropriate to the specific action
and in the context of the potentially affected environment:
(A) Both short- and long-term effects.
(B) Both beneficial and adverse effects.
(C) Effects on public health and safety.
(D) Economic effects.
(E) Effects on the quality of life of the American people.
(iii) In providing rationale for whether the degree of effect is
significant, responsible officials shall consider:
(A) How the unavoidable short- and long-term adverse impacts of
implementing the action compares to the short- and long-term adverse or
beneficial consequences of not implementing the action; and
(B) How the irreversible or irretrievable commitment of a resource,
as part of the action, contributes to a loss of long-term productivity
for the human environment.
(g) Integrated environmental review and compliance. It is the
policy of USDA that, to the fullest extent possible, USDA subcomponents
should conduct NEPA reviews concurrent and integrated with other
environmental effects analyses and related surveys and studies required
by all other Federal environmental review laws and Executive orders
applicable to the proposal, including the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (54 U.S.C. 300101-306108), the Endangered
Species Act of 1973 (16 U.S.C. 1531-1544), and the Clean Water Act of
1972 (33 U.S.C. 1251 et seq.).
(h) Limitations on actions during the NEPA process. It is the
policy of USDA that, except as provided in Sec. 1b.9(v) and (w), while
a NEPA review is ongoing a USDA subcomponent will take no action
concerning a proposal that would have an adverse environmental effect
or limit the choice of reasonable alternatives when alternatives are
necessary.
(1) For proposals that are initially developed by applicants or
other non-Federal entities, USDA subcomponents will:
(i) Coordinate with the non-Federal entity at the earliest
reasonable time in the planning process to inform the entity what
information a USDA subcomponent might need to comply with NEPA, as well
as any other applicable environmental review processes, and establish a
schedule for completing steps in the NEPA review process consistent
with NEPA's statutory deadlines and any internal subcomponent NEPA
schedule requirements; and
(ii) Begin the NEPA process by determining whether NEPA applies, as
described in paragraph (e) of this section, and if it does, determine
the appropriate level of NEPA review, as described in paragraph (f) of
this section, as soon as practicable after receiving the complete
application.
(2) If USDA is considering an application from a non-Federal entity
and becomes aware that the applicant is about to take an action within
USDA's jurisdiction that would meet either of the criteria in Sec.
1b.2.h, USDA will promptly notify the applicant that USDA will take
appropriate action to ensure that the objectives and procedures of NEPA
are achieved. This section does not preclude development by applicants
of plans or designs or performance of other activities necessary to
support an application for Federal, State, Tribal, or local permits or
assistance. When considering a proposed action for Federal funding,
USDA may authorize such activities, including, but not limited to,
acquisition of interests in land (e.g., fee simple, rights-of-way, and
conservation easements), purchase of long lead-time equipment, and
purchase options made by applicants.
(3) When agencies under the Rural Development mission area are
obligating funds, the environmental review process must be concluded
before the obligation of funds except for infrastructure projects where
the assurance that funds will be available for community health,
safety, or economic development has been determined as necessary by the
Agency Administrator. At the discretion of the Agency Administrator,
funds may be obligated contingent upon the
[[Page 29649]]
conclusion of the environmental review process prior to any action that
would have an adverse effect on the environment or limit the choices of
any reasonable alternatives. Funds so obligated shall be rescinded if
the agency cannot conclude the environmental review process before the
end of the fiscal year after the year in which the funds were
obligated, or if the agency determines that it cannot proceed with
approval based on findings in the environmental review process. For the
purposes of this section, infrastructure projects shall include
projects such as broadband, telecommunications, electric, energy
efficiency, smart grid, water, sewer, transportation, and energy
capital investments in physical plant and equipment, but not
investments authorized in the Housing Act of 1949.
(4) Adjudication. An adjudication may be a multi-member commission
that employs staff recommendations as described here. For adjudication,
the environmental document will normally precede the final staff
recommendation and that portion of the public hearing related to the
impact study. In appropriate circumstances, the document may follow
preliminary hearings designed to gather information for use in the
statements.
Sec. 1b.3 Categorical exclusions and findings of applicability and no
extraordinary circumstance.
(a) Generally. This section describes the process USDA uses for
establishing and revising categorical exclusions (CEs), for adopting
other agencies' CEs, for removing CEs, for applying CEs to a proposed
action, for considering extraordinary circumstances, and for relying on
another Federal agency's CE determination. USDA categorical exclusions,
including CEs USDA established and substantiated consistent with CEQ's
previous NEPA procedures, are listed at Sec. 1b.4. Notification of CEs
adopted by a USDA subcomponent from other agencies will be in
accordance with paragraph (c) of this section and tracked by USDA's
Natural Resources and Environment mission area for use by any other
USDA agency.
(b) Establishing and revising categorical exclusions. To establish
or revise a categorical exclusion, USDA subcomponents will determine
that the category of actions normally does not have reasonably
foreseeable significant impacts that affect the quality of the human
environment. In making this determination, subcomponents will:
(1) Develop a written record containing information to substantiate
its determination;
(2) Consult with CEQ on its proposed categorical exclusion,
including the written record, for a period not to exceed 30 days prior
to providing public notice as described in paragraph (b)(3) of this
section; and
(3) Provide public notice of USDA's establishment or revision of
the categorical exclusion and the written justification in the Federal
Register.
(c) Adopting categorical exclusions from other Federal agencies.
Consistent with NEPA section 109, 42 U.S.C. 4336c, USDA subcomponents
may adopt a categorical exclusion listed in another agency's NEPA
procedures. When adopting a categorical exclusion, USDA subcomponents
will:
(1) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its category of proposed or related
actions;
(2) Consult with the agency that established the categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion is appropriate; and
(3) Provide public notification of the categorical exclusion that
USDA is adopting, including a brief description of the proposed action
or category of proposed actions to which USDA intends to apply the
adopted categorical exclusion.
(i) Public notification will be provided on a USDA website and the
adoption of the category will be tracked by USDA's Natural Resources
and Environment mission area. Once a categorical exclusion is adopted
by one USDA subcomponent, it will be available for use to all other
USDA subcomponents.
(ii) Non-USDA categories that were already adopted by a USDA
subcomponent prior to the 2025 revision of this part are tracked by
USDA's Natural Resources and Environment mission area and may be used
by any other USDA subcomponent on proposed actions that fit the
categorically excluded actions. Adopted categories will be listed on a
USDA website.
(d) Removal of categorical exclusions. To remove a categorical
exclusion from Sec. 1b.4 of this part, a USDA subcomponent will:
(1) Develop a written justification for the removal;
(2) Consult with CEQ on its proposed removal of the categorical
exclusion, including the written justification, for a period not to
exceed 30 days prior to providing public notice as described in
subparagraph (3) below; and
(3) Provide public notice of USDA's removal of the categorical
exclusion and the written justification in the Federal Register.
(e) Applying categorical exclusions. If a USDA subcomponent
determines that one or more categorical exclusions applies to a
proposed action, the subcomponent will evaluate the action for
extraordinary circumstances. USDA subcomponents may apply any of the
categorical exclusions listed at Sec. 1b.4. If a USDA subcomponent
determines that a categorical exclusion established through
legislation, or a categorical exclusion that Congress through
legislation has directed USDA to establish, covers a proposed agency
action, USDA will conclude review consistent with applicable law. If
appropriate, USDA may examine extraordinary circumstances, modify the
proposed action, or document the determination that the legislative
categorical exclusion applies, consistent with paragraph (g) of this
section and the legal authority for the establishment of the
legislative categorical exclusion.
(f) Extraordinary circumstances. When applying categorical
exclusions, USDA subcomponents shall consider relevant resources in the
potentially affected environment for which an extraordinary
circumstance may exist that would require the action to instead be
documented in an environmental assessment (when there is uncertainty
regarding the degree of effect) or an environmental impact statement
(if it is determined there is a reasonably foreseeable significant
impact). Resources for consideration for extraordinary circumstances
will be determined at the responsible official's sole discretion and
shall be based on the nature of the actions proposed and in the context
of the potentially affected environment.
(1) The resources to screen for in the potentially affected
environment when considering extraordinary circumstances may include,
but are not limited to:
(i) Federally listed threatened or endangered species or designated
critical habitat or species proposed for Federal listing or proposed
critical habitat;
(ii) Flood plains, wetlands, or other such sensitive areas;
(iii) Special sources of water, such as sole-source aquifers,
wellhead protection areas, municipal watersheds, or other water sources
that are vital in a region;
(iv) Areas having formal Federal or state designations, such as
wilderness areas, parks, or wildlife refuges; wild and scenic rivers;
marine sanctuaries; national natural landmarks; inventoried roadless
areas; or national recreation areas;
[[Page 29650]]
(v) Specially managed areas, such as designated research or
experimental areas, coral reefs, coastal barrier resources, or, unless
exempt, coastal zone management areas;
(vi) Important or prime agricultural, forest, or range lands; or
(vii) Property (e.g., sites, buildings, structures, and objects) of
historic, archeological, or architectural significance, as designated
by Federal, Tribal, State, or local governments, or property eligible
for listing on the National Register of Historic Places.
(2) The mere presence of one or more of the resources listed in
paragraph (f)(1) of this section, or as otherwise identified at the
sole discretion of the responsible official, does not mean an
extraordinary circumstance exists. If there is a cause-effect
relationship (impact) between the proposed actions and the resource
considered, an extraordinary circumstance exists only when there is
reasonable uncertainty whether the degree of the effect is significant
or certainty that the degree of effect is significant.
(3) If an extraordinary circumstance exists, the responsible
official may modify the proposed action, or take other steps, such that
certainty is created regarding the degree of effect and it is
determined the degree of effect is not a reasonably foreseeable
significant impact for the resource(s) considered that initially led to
the existence of an extraordinary circumstance. With this outcome, the
extraordinary circumstance will be considered to no longer exist and
use of the categorical exclusion may proceed.
(4) When effects analysis is completed to demonstrate compliance
with other applicable environmental laws, regulations, or executive
orders (e.g., analysis completed for Endangered Species Act, National
Historic Preservation Act, Clean Water Act, etc.) and already addresses
one of the resources in paragraph (f)(1) of this section or as
identified at the sole discretion of the responsible official, and it
is clear from that analysis and compliance discussion that no
extraordinary circumstance exists for the resource considered, the
responsible official may rely on that analysis to inform their finding
of no extraordinary circumstance.
(g) Findings of applicability and no extraordinary circumstances
(FANEC). To apply a categorical exclusion, a responsible official must
determine that one or more categorical exclusions apply to a proposed
action and that no extraordinary circumstance exists. For those
categories that require NEPA documentation, as specified in Sec.
1b.4(d), responsible officials shall document these determinations as
outlined in paragraphs (g)(1) and (2) of this section.
(1) A USDA subcomponent shall document a finding of applicability
and no extraordinary circumstance (FANEC) if the subcomponent
determines, based on the NEPA review, that:
(i) An action is categorically excluded from documentation in an
environmental assessment or environmental impact statement;
(ii) No extraordinary circumstance exists; and
(iii) The category requires NEPA documentation in accordance with
statute, Sec. 1b.4(d), or as required by the Federal agency
regulations or procedures from which a category was adopted.
(2) USDA subcomponents may apply any format they choose to document
the finding of applicability and no extraordinary circumstance, but
shall address the following elements at a minimum:
(i) Incorporate by reference any other relevant documentation
developed as part of the environmental review process and contained in
the proposal record, such as documentation of compliance with other
applicable laws or regulations as deemed necessary by the responsible
official;
(ii) State the category or categories being used. If a category
being used is adopted from another non-USDA agency, specify that it was
adopted;
(iii) Describe the proposed action and certify the category or
categories used are applicable to the actions;
(iv) State the resources that the responsible official considered
in determining whether an extraordinary circumstance exists;
(v) State that no extraordinary circumstances exist, as informed by
the interdisciplinary review; and
(vi) Include the date issued and signature of the responsible
official.
(h) Reliance on categorical exclusion determinations of other
agencies. Responsible officials may also rely on another agency's
determination that a categorical exclusion applies, and no
extraordinary circumstance exists, for a particular proposed action if
the agency action covered by those determinations and the USDA
subcomponent's proposed actions and potentially affected environment
are substantially the same. The responsible official will document
their reliance on another agency's categorical exclusion determination
and include this in the proposal record.
(i) Other documentation considerations. If use of a categorical
exclusion requires documentation in addition to those items listed in
paragraph (g)(2) of this section, as specified in statute or
regulation, USDA subcomponents may add them to the documentation for
the finding of applicability and no extraordinary circumstance as
needed.
(j) Timing of action. Once the responsible official has signed the
documentation for the finding of applicability and no extraordinary
circumstance, and unless other statutes or regulations require
otherwise, the USDA subcomponent or applicant may begin implementing
the action. When NEPA documentation is not required for a categorical
exclusion, once the responsible official has determined one or more
categorical exclusions applies to a proposed action and no
extraordinary circumstance exists and has completed any other necessary
environmental review documentation, and unless other statutes or
regulations require otherwise, the USDA subcomponent or applicant may
begin implementing the action.
Sec. 1b.4 Categorical exclusion of USDA subcomponents and actions.
(a) The USDA subcomponents listed in paragraphs (a)(1) through (9)
of this section conduct programs and activities that do not normally
result in reasonably foreseeable significant impacts on the natural or
physical environment. As such, these subcomponents' actions are
excluded from the preparation of an environmental assessment (EA) or
environmental impact statement (EIS). Programs and activities of the
USDA subcomponents listed in this paragraph may utilize categorical
exclusions, as described in this part, but do not require the
preparation of an EA or EIS unless the subcomponent determines that an
extraordinary circumstance exists for an individual action and obtains
the concurrence of the USDA Senior Agency Official (Undersecretary of
Natural Resources and Environment) (or their designee):
(1) Agricultural Marketing Service
(2) Economic Research Service
(3) Federal Crop Insurance Corporation
(4) Food and Nutrition Service
(5) Food Safety and Inspection Service
(6) Foreign Agricultural Service
(7) National Agricultural Library
(8) National Agricultural Statistics Service
(9) The following general offices of the Department: Office of the
Chief Economist, Office of the Chief Financial Officer, Office of the
Chief Information Officer, Office of the General Counsel,
[[Page 29651]]
Office of the Inspector General, National Appeals Division, Office of
Budget and Program Analysis, Office of Communications, Office of
Partnerships and Public Engagement, Office of Tribal Relations, and
Office of Small and Disadvantaged Business Utilization.
(b) The categories in paragraphs (c) and (d) of this section are
for activities which have been determined by USDA to not have a
reasonably foreseeable significant impact on the human environment and
are excluded from the preparation of an environmental assessment or
environmental impact statement. Categories have been assigned unique
numbers for ease of reference. The following acronyms at the end of the
number sequence indicate the USDA subcomponent that originally
promulgated the category. These acronyms are used in the numbering
sequence for USDA subcomponent tracking and continuity purposes and do
not imply that the subcomponent indicated is the only USDA subcomponent
that may use the category:
(1) OSEC (Office of the Secretary)
(2) APHIS (Animal and Plant Health Inspection Service)
(3) FSA (Farm Service Agency)
(4) NRCS (Natural Resources Conservation Service)
(5) RD (Rural Development)
(6) USFS (U.S. Forest Service)
(c) The following categorical exclusions do not require NEPA
documentation.
(1) (USDA-01c-OSEC) Policy development, planning and implementation
which relate to routine activities, such as personnel, organizational
changes, or similar administrative functions. Examples include, but are
not limited to:
(i) Issuing minor technical corrections to regulations, handbooks,
and internal guidance, as well as amendments to them;
(ii) Personnel actions, reduction-in-force, or employee transfers;
and
(iii) Procurement actions for goods and services conducted in
accordance with applicable laws, regulations, and executive orders.
(2) (USDA-02c-OSEC) Activities which deal solely with the funding
of programs, such as program budget proposals, disbursements, and
transfer or reprogramming of funds.
(3) (USDA-03c-OSEC) Inventories, research activities, and studies,
such as resource inventories and routine data collection when such
actions are clearly limited in context and intensity. Examples include,
but are not limited to:
(i) Identifications, inspections, surveys, sampling, testing, and
monitoring that does not cause physical alteration of the environment;
(ii) Laboratory research involving the evaluation and use of
chemicals in a manner not specifically listed on the product label
pursuant to applicable Federal authorizations;
(iii) Research evaluating wildlife management products or tools,
such as animal repellents, frightening devices, or fencing, that is
carried out in a manner and area designed to eliminate the potential
for harmful environmental effects and in accordance with applicable
regulatory requirements;
(iv) Research operations conducted within any laboratory,
greenhouse or other contained facility where research practices and
safeguards prevent environment impacts, such as the release of
hazardous materials into the environment;
(v) Testing outside of the laboratory, such as in small, isolated
field plots, which involves the routine use of familiar chemicals or
biological materials and does not involve the use of control agents
requiring containment or a special license or a permit from a
regulatory agency.
(vi) Soil surveys;
(vii) Snow surveys and water supply forecasts;
(viii) Plant materials for conservation;
(ix) Inventory and monitoring;
(x) River Basin Studies under section 6 of Pub. L. 83-566, as
amended.
(4) (USDA-04c-OSEC) Educational and informational programs and
activities.
(5) (USDA-05c-OSEC) Civil and criminal law enforcement and
investigative activities.
(6) (USDA-06c-OSEC) Activities which are advisory and consultative
to other agencies and public and private entities, such as legal
counselling and representation.
(7) (USDA-07c-OSEC) Activities related to trade representation and
market development activities abroad.
(8) (USDA-08c-APHIS) Routine measures, such as, seizures,
quarantines, removals, sanitizing, inoculations, and control employed
by agency programs to pursue their missions and functions.
(i) Such measures may include the use--according to any label
instructions or other lawful requirements and consistent with standard,
published program practices and precautions--of chemicals, pesticides,
or other potentially hazardous or harmful substances, materials, and
target-specific devices or remedies, provided that such use meets all
of the following criteria (insofar as they may pertain to a particular
action):
(A) The use is localized or contained in areas where humans are not
likely to be exposed, and is limited in terms of quantity, i.e.,
individualized dosages and remedies;
(B) The use will not cause contaminants to enter water bodies,
including wetlands;
(C) The use does not adversely affect any federally protected
species or critical habitat; and
(D) The use does not cause bioaccumulation.
(ii) Examples of routine measures include, but are not limited to:
(A) Inoculation or treatment of discrete herds of livestock or
wildlife undertaken in contained areas (such as a barn or corral, a
zoo, an exhibition, or an aviary);
(B) Use of vaccinations or inoculations including new vaccines
(e.g., genetically engineered vaccines) and applications of existing
vaccines to new species provided that the project is conducted in a
controlled and limited manner, and the impacts of the vaccine can be
predicted; and
(C) Isolated (e.g., along a highway) weed control efforts.
(9) (USDA-09c-APHIS) Research and development activities limited in
magnitude, frequency, and scope that occur in laboratories, facilities,
pens, or field sites. Examples include, but are not limited to:
(i) Vaccination trials that occur on groups of animals in areas
designed to limit interaction with similar animals, or include other
controls needed to mitigate potential risk.
(ii) The development and/or production (including formulation,
packaging or repackaging, movement, and distribution) of articles such
as program materials, devices, reagents, and biologics that were
approved and/or licensed in accordance with existing regulations, or
that are for evaluation in confined animal, plant, or insect
populations under conditions that prevent exposure to the general
population.
(iii) Development, production, and release of sterile insects.
(10) (USDA-10c-APHIS) Licensing and permitting.
(i) Issuance of a license, permit, authorization, or approval to
ship or field test previously unlicensed veterinary biologics,
including veterinary biologics containing genetically engineered
organisms (such as vector-based vaccines and nucleic acid-based
vaccines);
(ii) Issuance of a license, permit, authorization, or approval for
movement
[[Page 29652]]
or uses of pure cultures of organisms (relatively free of extraneous
micro-organisms and extraneous material) that are not strains of
quarantine concern and occur, or are likely to occur, in a State's
environment;
(iii) Permitting for confined field releases of genetically
engineered organisms and products; or
(iv) Permitting of:
(A) Importation of nonindigenous species into containment
facilities,
(B) Interstate movement of nonindigenous species between
containment facilities, or
(C) Releases into a State's environment of pure cultures of
organisms that are either native or are established introductions.
(11) (USDA-11c-APHIS) Minor renovation, improvement, and
maintenance of facilities. Examples include, but are not limited to:
(i) Renovation of existing laboratories and other facilities.
(ii) Functional replacement of parts and equipment.
(iii) Minor additions to existing facilities.
(iv) Minor excavations of land and repairs to properties.
(12) (USDA-12c-FSA) Minor management, construction, or repair
actions.
(i) Minor construction, such as a small addition;
(ii) Drain tile replacement;
(iii) Erosion control measures;
(iv) Grading, leveling, shaping, and filling;
(v) Grassed waterway establishment;
(vi) Hillside ditches;
(vii) Land-clearing operations of no more than 15 acres, provided
any amount of land involved in tree harvesting (without stump removal)
is to be conducted on a sustainable basis and according to a Federal,
State, Tribal, or other governmental unit approved forestry management
plan;
(viii) Nutrient management;
(ix) Permanent establishment of a water source for wildlife (not
livestock);
(x) Restoring and replacing property;
(xi) Soil and water development;
(xii) Spring development;
(xiii) Trough or tank installation; and
(xiv) Water harvesting catchment.
(13) (USDA-13c-FSA) Repair, improvement, or minor modification
actions.
(i) Existing fence repair;
(ii) Improvement or repair of farm-related structures under 50
years of age; and
(iii) Minor amendments or revisions to previously approved
projects, provided such proposed actions do not substantively alter the
purpose, operation, location, impacts, or design of the project as
originally approved.
(14) (USDA-14c-FSA) Planting actions.
(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.
(15) (USDA-15c-FSA) Management actions.
(i) Forage harvest management;
(ii) Integrated crop management;
(iii) Mulching, including plastic mulch;
(iv) Netting for hard woods;
(v) Obstruction removal;
(vi) Pest management (consistent with all labelling and use
requirements);
(vii) Plant grafting;
(viii) Plugging artesian wells;
(ix) Residue management including seasonal management;
(x) Roof runoff management;
(xi) Thinning and pruning of plants;
(xii) Toxic salt reduction; and
(xiii) Water spreading.
(16) (USDA-16c-FSA) Miscellaneous FSA actions.
(i) Fence installation and replacement;
(ii) Fish stream improvement;
(iii) Grazing land mechanical treatment; and
(iv) Inventory property disposal or lease without protective
easements or covenants;
(v) Conservation easement purchases with no construction planned;
(vi) Emergency program proposed actions (including Emergency
Conservation Program and Emergency Forest Restoration Program) that
have a total cost share of less than $5,000;
(vii) Financial assistance to supplement income, manage the supply
of agricultural commodities, or influence the cost and supply of such
commodities or programs of a similar nature or intent (that is, price
support programs);
(viii) Individual farm participation in Farm Service Agency
programs where no ground disturbance or change in land use occurs as a
result of the proposed action or participation;
(ix) Safety net programs without ground disturbance;
(x) 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;
(xi) Stand analysis for forest management planning; and
(xii) Tree protection including plastic tubes.
(17) (USDA-17c-RD) A guarantee provided to the Federal Financing
Bank pursuant to Section 313A(a) of the Rural Electrification Act of
1936 for the purpose of:
(i) Refinancing existing debt instruments of a lender organized on
a not-for-profit basis; or
(ii) Prepaying outstanding notes or bonds made to or guaranteed by
the Agency.
(18) (USDA-18c-RD) Financial assistance for minor construction
proposals. The CEs in this section are for proposals for financial
assistance that involve no or minimal alterations in the physical
environment and typically occur on previously disturbed land. These
actions normally do not require an applicant to submit environmental
documentation with the application. However, based on the review of the
project description, the Agency may request additional environmental
documentation from the applicant at any time, specifically if the
Agency determines that extraordinary circumstances may exist. In
accordance with section 106 of the National Historic Preservation Act
(54 U.S.C. 300101-306108) and its implementing regulations under 36 CFR
800.3(a), the agency has determined that the actions in this section
are undertakings, and in accordance with 36 CFR 800.3(a)(1) has
identified those undertakings for which no further review under 36 CFR
part 800 is required because they have no potential to cause effects to
historic properties. In accordance with section 7 of the Endangered
Species Act (16 U.S.C. 1531-1544) and its implementing regulations at
50 CFR part 402, the agency has determined that the actions
[[Page 29653]]
in this section are actions for purposes of the Endangered Species Act,
and in accordance with 50 CFR 402.06 has identified those actions for
which no further review under 50 CFR part 402 is required because they
will have no effect to listed threatened and endangered species.
(i) Minor amendments or revisions to previously approved projects
provided such activities do not alter the purpose, operation,
geographic scope, or design of the project as originally approved;
(ii) Repair, upgrade, or replacement of equipment in existing
structures for such purposes as improving habitability, energy
efficiency (including heat rate efficiency), replacement or conversion
to enable use of renewable fuels, pollution prevention, or pollution
control;
(iii) Any internal modification or minimal external modification,
restoration, renovation, maintenance, and replacement in-kind to an
existing facility or structure;
(iv) Construction of or substantial improvement to a single-family
dwelling, or a Rural Housing Site Loan project or multi-family housing
project serving up to four families and affecting less than 10 acres of
land;
(v) Siting, construction, and operation of new or additional water
supply wells for residential, farm, or livestock use;
(vi) Replacement of existing water and sewer lines within the
existing right-of-way and as long as the size of pipe is either no
larger than the inner diameter of the existing pipe or is an increased
diameter as required by Federal or state requirements. If a larger pipe
size is required, applicants must provide a copy of written
administrative requirements mandating a minimum pipe diameter from the
regulatory agency with jurisdiction;
(vii) Modifications of an existing water supply well to restore
production in existing commercial well fields, if there would be no
drawdown other than in the immediate vicinity of the pumping well, no
resulting long-term decline of the water table, and no degradation of
the aquifer from the replacement well;
(viii) Burying new facilities for communication purposes in
previously developed, existing rights-of-way and in areas already in or
committed to urbanized development or rural settlements whether
incorporated or unincorporated that are characterized by high human
densities and within contiguous, highly disturbed environments with
human-built features. Covered actions include associated vaults and
pulling and tensioning sites outside rights-of-way in nearby previously
disturbed or developed land;
(ix) Changes to electric transmission lines that involve pole
replacement or structural components only where either the same or
substantially equivalent support structures at the approximate existing
support structure locations are used;
(x) Phase or voltage conversions, reconductoring, upgrading, or
rebuilding of existing electric distribution lines that would not
affect the environment beyond the previously developed, existing
rights-of-way. Includes pole replacements and overhead-to-underground
conversions;
(xi) Collocation of telecommunications equipment on existing
infrastructure and deployment of distributed antenna systems and small
cell networks provided the latter technologies are not attached to and
will not cause adverse effects to historic properties;
(xii) Siting, construction, and operation of small, ground source
heat pump systems that would be located on previously developed land;
(xiii) Siting, construction, and operation of small solar electric
projects or solar thermal projects to be installed on or adjacent to an
existing structure and that would not affect the environment beyond the
previously developed facility area and are not attached to and will not
cause adverse effects to historic properties;
(xiv) Siting, construction, and operation of small biomass
projects, such as animal waste anaerobic digesters or gasifiers, that
would use feedstock produced on site (such as a farm where the site has
been previously disturbed) and supply gas or electricity for the site's
own energy needs with no or only incidental export of energy;
(xv) Construction of small standby electric generating facilities
with a rating of one average megawatt (MW) or less, and associated
facilities, for the purpose of providing emergency power for or startup
of an existing facility;
(xvi) Additions or modifications to electric transmission
facilities that would not affect the environment beyond the previously
developed facility area including, but not limited to, switchyard rock,
grounding upgrades, secondary containment projects, paving projects,
seismic upgrading, tower modifications, changing insulators, and
replacement of poles, circuit breakers, conductors, transformers, and
crossarms; and
(xvii) Safety, environmental, or energy efficiency (including heat
rate efficiency) improvements within an existing electric generation
facility, including addition, replacement, or upgrade of facility
components (such as precipitator, baghouse, or scrubber installations),
that do not result in a change to the design capacity or function of
the facility and do not result in an increase in pollutant emissions,
effluent discharges, or waste products.
(19) (USDA-19c-USFS) Orders issued pursuant to 36 CFR part 261:
Prohibitions to provide short-term resource protection or to protect
public health and safety. Examples include, but are not limited to:
(i) Closing a road to protect bighorn sheep during lambing season,
and
(ii) Closing an area during a period of extreme fire danger.
(20) (USDA-20c-USFS) Rules, regulations, or policies to establish
service-wide administrative procedures, program processes, or
instructions. Examples include, but are not limited to:
(i) Adjusting special use or recreation fees using an existing
formula;
(ii) Proposing a technical or scientific method or procedure for
screening effects of emissions on air quality related values in Class I
wildernesses;
(iii) Proposing a policy to defer payments on certain permits or
contracts to reduce the risk of default;
(iv) Proposing changes in contract terms and conditions or terms
and conditions of special use authorizations;
(v) Establishing a service-wide process for responding to offers to
exchange land and for agreeing on land values; and
(vi) Establishing procedures for amending or revising forest land
and resource management plans.
(21) (USDA-21c-USFS) Repair and maintenance of administrative
sites. Examples include, but are not limited to:
(i) Mowing lawns at a district office;
(ii) Replacing a roof or storage shed;
(iii) Painting a building; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(22) (USDA-22c-USFS) Repair and maintenance of roads, trails, and
landline boundaries. Examples include, but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts
of an established National Forest System (NFS) road;
(ii) Grading a road and clearing the roadside of brush without the
use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and
grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
[[Page 29654]]
(23) (USDA-23c-USFS) Repair and maintenance of recreation sites and
facilities. Examples include, but are not limited to:
(i) Applying registered herbicides to control poison ivy on
infested sites in a campground;
(ii) Applying registered insecticides by compressed air sprayer to
control insects at a recreation site complex;
(iii) Repaving a parking lot; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(24) (USDA-24c-USFS) Acquisition of land or interest in land.
Examples include, but are not limited to:
(i) Accepting the donation of lands or interests in land to the
NFS, and
(ii) Purchasing fee, conservation easement, reserved interest deed,
or other interests in lands.
(25) (USDA-25c-USFS) Sale or exchange of land or interest in land
and resources where resulting land uses remain essentially the same.
Examples include, but are not limited to:
(i) Selling or exchanging land pursuant to the Small Tracts Act;
(ii) Exchanging NFS lands or interests with a State agency, local
government, or other non-Federal party (individual or organization)
with similar resource management objectives and practices;
(iii) Authorizing the Bureau of Land Management to issue leases on
producing wells when mineral rights revert to the United States from
private ownership and there is no change in activity; and
(iv) Exchange of administrative sites involving other than NFS
lands.
(26) (USDA-26c-USFS) Approval, modification, or continuation of
minor, short-term (1 year or less) special uses of NFS lands. Examples
include, but are not limited to:
(i) Approving, on an annual basis, the intermittent use and
occupancy by a State-licensed outfitter or guide;
(ii) Approving the use of NFS land for apiaries; and
(iii) Approving the gathering of forest products for personal use.
(27) (USDA-27c-USFS) Issuance of a new permit for up to the maximum
tenure allowable under the National Forest Ski Area Permit Act of 1986
(16 U.S.C. 497b) for an existing ski area when such issuance is a
purely ministerial action to account for administrative changes, such
as a change in ownership of ski area improvements, expiration of the
current permit, or a change in the statutory authority applicable to
the current permit. Examples include, but are not limited to:
(i) Issuing a permit to a new owner of ski area improvements within
an existing ski area with no changes to the master development plan,
including no changes to the facilities or activities for that ski area;
(ii) Upon expiration of a ski area permit, issuing a new permit to
the holder of the previous permit where the holder is not requesting
any changes to the master development plan, including changes to the
facilities or activities; and
(iii) Issuing a new permit under the National Forest Ski Area
Permit Act of 1986 to the holder of a permit issued under the Term
Permit and Organic Acts, where there are no changes in the type or
scope of activities authorized and no other changes in the master
development plan.
(28) (USDA-28c-USFS) Issuance of a new special use authorization to
replace an existing or expired special use authorization, when such
issuance is to account only for administrative changes, such as a
change in ownership of authorized improvements or expiration of the
current authorization, and where there are no changes to the authorized
facilities or increases in the scope or magnitude of authorized
activities. The applicant or holder must be in compliance with all the
terms and conditions of the existing or expired special use
authorization. Subject to the foregoing conditions, examples include,
but are not limited to:
(i) Issuing a new authorization to replace a powerline facility
authorization that is at the end of its term;
(ii) Issuing a new permit to replace an expired permit for a road
that continues to be used as access to non-NFS lands; and
(iii) Converting a transitional priority use outfitting and guiding
permit to a priority use outfitting and guiding permit.
(29) (USDA-29c-USFS) Issuance of a new authorization or amendment
of an existing authorization for recreation special uses that occur on
existing roads or trails, in existing facilities, in existing
recreation sites, or in areas where such activities are allowed.
Subject to the foregoing condition, examples include, but are not
limited to:
(i) Issuance of an outfitting and guiding permit for mountain
biking on NFS trails that are not closed to mountain biking;
(ii) Issuance of a permit to host a competitive motorcycle event;
(iii) Issuance of an outfitting and guiding permit for backcountry
skiing;
(iv) Issuance of a permit for a one-time use of existing facilities
for other recreational events; and
(v) Issuance of a campground concession permit for an existing
campground that has previously been operated by the Forest Service.
(30) (USDA-30c-FSA) FSA Loan Actions
(i) Closing cost payments;
(ii) Commodity loans;
(iii) Debt set asides;
(iv) Deferral of loan payments;
(v) 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 below the
depth of previous tillage or ground disturbance, and no change in
operations, including, but not limited to, an increase in animal
numbers to exceed the current CAFO designation (as defined by the U.S.
Environmental Protection Agency in 40 CFR 122.23);
(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.
(xiv) Farm storage and drying facility loans for added capacity;
(xx) Loans for livestock purchases;
(xxi) Release of loan security for forestry purposes;
(xxii) Reorganizing farm operations; and
(xxiii) Replacement building loans;
(xxiv) Loans and loan subordination with construction, demolition,
or ground disturbance planned;
(xxv) Real estate purchase loans with new ground disturbance
planned; and
(xxvi) Term operating loans with construction or demolition
planned;
(31) (USDA-31c-RD) The promulgation of rules or formal notices for
policies or programs that are administrative or financial procedures
for implementing Agency assistance activities.
(32) (USDA-32c-RD) Agency proposals for legislation that have no
potential for significant environmental impacts because they would
allow for no or minimal construction or change in operations.
(d) The following categorical exclusions require NEPA
documentation, which will be completed as set forth at Sec. 1b.3(g).
(1) (USDA-01d-FSA) Construction or ground disturbance actions.
[[Page 29655]]
(i) Bridges;
(ii) Chiseling and subsoiling in areas not previously tilled;
(iii) Construction of a new farm storage facility;
(iv) Dams;
(v) Dikes and levees;
(vi) Diversions;
(vii) Drop spillways;
(viii) Dugouts;
(ix) Excavation;
(x) Grade stabilization structures;
(xi) Grading, leveling, shaping and filling in areas or to depths
not previously disturbed;
(xii) Installation of structures designed to regulate water flow
such as pipes, flashboard risers, gates, chutes, and outlets;
(xiii) Irrigation systems;
(xiv) Land smoothing;
(xv) Line waterways or outlets;
(xvi) Lining;
(xvii) Livestock crossing facilities;
(xviii) Pesticide containment facility;
(xix) Pipe drop;
(xx) Pipeline for watering facility;
(xxi) Ponds, including sealing and lining;
(xxii) Precision land farming with ground disturbance;
(xxiii) Riparian buffer establishment;
(xxiv) Roads, including access roads;
(xxv) Rock barriers;
(xxvi) Rock filled infiltration trenches;
(xxvii) Sediment basin;
(xxviii) Sediment structures;
(xxix) Site preparation for planting or seeding in areas not
previously tilled;
(xxx) Soil and water conservation structures;
(xxxi) Stream bank and shoreline protection;
(xxxii) Structures for water control;
(xxxiii) Subsurface drains;
(xxxiv) Surface roughening;
(xxxv) Terracing;
(xxxvi) Underground outlets;
(xxxvii) Watering tank or trough installation, if in areas not
previously disturbed;
(xxxviii) Wells; and
(xxxix) Wetland restoration.
(2) (USDA-02d-FSA) Management and planting type actions.
(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.
(3) (USDA-03d-NRCS) Planting appropriate herbaceous and woody
vegetation, which does not include noxious weeds or invasive plants, on
disturbed sites to restore and maintain the sites ecological functions
and services.
(4) (USDA-04d-NRCS) Removing dikes and associated appurtenances
(such as culverts, pipes, valves, gates, and fencing) to allow waters
to access floodplains to the extent that existed prior to the
installation of such dikes and associated appurtenances.
(5) (USDA-05d-NRCS) Plugging and filling excavated drainage ditches
to allow hydrologic conditions to return to pre-drainage conditions to
the extent practicable.
(6) (USDA-06d-NRCS) Replacing and repairing existing culverts,
grade stabilization, and water control structures and other small
structures that were damaged by natural disasters where there is no new
depth required and only minimal dredging, excavation, or placement of
fill is required.
(7) (USDA-07d-NRCS) Restoring the natural topographic features of
agricultural fields that were altered by farming and ranching
activities for the purpose of restoring ecological processes.
(8) (USDA-08d-NRCS) Removing or relocating residential, commercial,
and other public and private buildings and associated structures
constructed in the 100-year floodplain or within the breach inundation
area of an existing dam or other flood control structure in order to
restore natural hydrologic conditions of inundation or saturation,
vegetation, or reduce hazards posed to public safety.
(9) (USDA-09d-NRCS) Removing storm debris and sediment following a
natural disaster where there is a continuing and eminent threat to
public health or safety, property, and natural and cultural resources
and removal is necessary to restore lands to pre-disaster conditions to
the extent practicable. Excavation will not exceed the pre-disaster
condition.
(10) (USDA-10d-NRCS) Stabilizing stream banks and associated
structures to reduce erosion through bioengineering techniques
following a natural disaster to restore pre-disaster conditions to the
extent practicable, e.g., utilization of living and nonliving plant
materials in combination with natural and synthetic support materials,
such as rocks, rip-rap, geo-textiles, for slope stabilization, erosion
reduction, and vegetative establishment and establishment of
appropriate plant communities (bank shaping and planting, brush
mattresses, log, root wad, and boulder stabilization methods).
(11) (USDA-11d-NRCS) Repairing or maintenance of existing small
structures or improvements (including structures and improvements
utilized to restore disturbed or altered wetland, riparian, in stream,
or native habitat conditions). Examples of such activities include the
repair or stabilization of existing stream crossings for livestock or
human passage, levees, culverts, berms, dikes, and associated
appurtenances.
(12) (USDA-12d-NRCS) Constructing small structures or improvements
for the restoration of wetland, riparian, in stream, or native
habitats. Examples of activities include installation of fences and
construction of small berms, dikes, and associated water control
structures.
(13) (USDA-13d-NRCS) Restoring an ecosystem, fish and wildlife
habitat, biotic community, or population of living resources to a
determinable pre-impact condition.
(14) (USDA-14d-NRCS) Repairing or maintenance of existing
constructed fish passageways, such as fish ladders or spawning areas
impacted by natural disasters or human alteration.
(15) (USDA-15d-NRCS) Repairing, maintaining, or installing fish
screens to existing structures.
(16) (USDA-16d-NRCS) Repairing or maintaining principal spillways
and appurtenances associated with existing serviceable dams, originally
constructed to NRCS standards, in order to meet current safety
standards. Work will be confined to the construction footprint of the
dam, and no major change in reservoir or downstream operations will
result.
(17) (USDA-17d-NRCS) Repairing or improving (deepening/widening/
armoring) existing auxiliary/emergency spillways associated with dams,
originally constructed to NRCS standards, in order to meet current
safety standards. Work will be confined to the construction footprint
of the dam or abutment areas, and no major change in reservoir or
downstream operation will result.
(18) (USDA-18d-NRCS) Repairing embankment slope failures on
structures or reshaping the embankment, originally built to NRCS
standards, where the work is confined to the embankment or abutment
areas.
(19) (USDA-19d-NRCS) Increasing the freeboard (which is the height
from the auxiliary (emergency) spillway crest to the top of embankment)
of an existing dam or dike, originally built to NRCS standards, by
raising the top elevation in order to meet current safety and
performance standards. The purpose of the safety standard and
associated work is to ensure that during extreme rainfall events, flows
are confined to the auxiliary/emergency spillway so that the existing
structure is not overtopped which may result in a catastrophic failure.
Elevating the top of the dam will
[[Page 29656]]
not result in an increase to lake or stream levels. Work will be
confined to the construction footprint of the dam and abutment areas,
and no major change in reservoir operations will result. Examples of
work may include the addition of fill material such as earth or gravel
or placement of parapet walls.
(20) (USDA-20d-NRCS) Modifying existing residential, commercial,
and other public and private buildings to prevent flood damages, such
as elevating structures or sealing basements to comply with current
State safety standards and Federal performance standards.
(21) (USDA-21d-NRCS) Undertaking minor agricultural practices to
maintain and restore ecological conditions in floodplains after a
natural disaster or on lands impacted by human alteration. Examples of
these practices include: mowing, haying, grazing, fencing, off-stream
watering facilities, and invasive species control which are undertaken
when fish and wildlife are not breeding, nesting, rearing young, or
during other sensitive timeframes.
(22) (USDA-22d-NRCS) Implementing soil control measures on existing
agricultural lands, such as grade stabilization structures (pipe
drops), sediment basins, terraces, grassed waterways, filter strips,
riparian forest buffer, and critical area planting.
(23) (USDA-23d-NRCS) Implementing water conservation activities on
existing agricultural lands, such as minor irrigation land leveling,
irrigation water conveyance (pipelines), irrigation water control
structures, and various management practices.
(24) The CEs in this section are for proposals for financial
assistance that require an applicant to submit environmental
documentation with their application to facilitate agency determination
of extraordinary circumstances. At a minimum, the environmental
documentation will include a complete description of all components of
the applicant's proposal and any connected actions, including its
specific location on detailed site plans as well as location maps
equivalent to a U.S. Geological Survey (USGS) quadrangle map; and
information from authoritative sources acceptable to the agency
confirming the presence or absence of sensitive environmental resources
in the area that could be affected by the applicant's proposal. The
environmental documentation submitted must be accurate, complete, and
capable of verification. The agency may request additional information
as needed to make an environmental determination. Failure to submit the
required environmental documentation will postpone further
consideration of the applicant's proposal until the environmental
documentation is submitted, or the agency may deny the request for
financial assistance. The agency will review the environmental
documentation and determine if extraordinary circumstances exist. The
agency's review may determine that classification as an environmental
assessment or an environmental impact statement is more appropriate
than a categorical exclusion classification.
(i) (USDA-24-1d-RD) Small-scale site-specific development. The
following CEs apply to proposals where site development activities
(including construction, expansion, repair, rehabilitation, or other
improvements) for rural development purposes would impact not more than
10 acres of real property and would not cause a substantial increase in
traffic. These CEs are identified in subparagraphs (A) through (J) of
this subparagraph (i). This paragraph does not apply to new industrial
proposals (such as ethanol and biodiesel production facilities).
(A) Multi-family housing and Rural Housing Site Loans.
(B) Business development.
(C) Community facilities such as municipal buildings, libraries,
security services, fire protection, schools, and health and recreation
facilities.
(D) Infrastructure to support utility systems such as water or
wastewater facilities; headquarters, maintenance, equipment storage, or
microwave facilities; and energy management systems.
(E) Installation of new, commercial-scale water supply wells and
associated pipelines or water storage facilities that are required by a
regulatory authority or standard engineering practice as a backup to
existing production well(s) or as reserve for fire protection.
(F) Construction of telecommunications towers and associated
facilities, if the towers and associated facilities are 450 feet or
less in height and would not be in or visible from an area of
documented scenic value.
(G) Repair, rehabilitation, or restoration of water control, flood
control, or water impoundment facilities, such as dams, dikes, levees,
detention reservoirs, and drainage ditches, with minimal change in use,
size, capacity, purpose, operation, location, or design from the
original facility.
(H) Installation or enlargement of irrigation facilities on an
applicant's land, including storage reservoirs, diversion dams, wells,
pumping plants, canals, pipelines, and sprinklers designed to irrigate
less than 80 acres.
(I) Replacement or restoration of irrigation facilities, including
storage reservoirs, diversion dams, wells, pumping plants, canals,
pipelines, and sprinklers, with no or minimal change in use, size,
capacity, or location from the original facility(s).
(J) Vegetative biomass harvesting operations of no more than 15
acres, provided any amount of land involved in harvesting is to be
conducted managed on a sustainable basis and according to a Federal,
state, or other governmental unit approved management plan.
(ii) (USDA-24-2d-RD) Financial assistance for small-scale corridor
development.
(A) Construction or repair of roads, streets, and sidewalks,
including related structures such as curbs, gutters, storm drains, and
bridges, in an existing right-of-way with minimal change in use, size,
capacity, purpose, or location from the original infrastructure;
(B) Improvement and expansion of existing water, wastewater, and
gas utility systems: within 20 miles of currently served areas
irrespective of the percent of increase in new capacity;
(C) Replacement of utility lines where road reconstruction
undertaken by non-Agency applicants requires the relocation of lines
either within or immediately adjacent to the new road easement or
right-of-way; and
(D) Installation of new linear telecommunications facilities and
related equipment and infrastructure.
(iii) (USDA-24-3d-RD) Financial assistance for small-scale energy
proposals.
(A) Construction of electric power substations (including switching
stations and support facilities) or modification of existing
substations, switchyards, and support facilities;
(B) Construction of electric power lines and associated facilities
designed for or capable of operation at a nominal voltage of either:
(1) Less than 69 kilovolts (kV);
(2) Less than 230 kV if no more than 25 miles of line are involved;
or
(3) 230 kV or greater involving no more than three miles of line,
but not for the integration of major new generation resources into a
bulk transmission system;
(C) Reconstruction (upgrading or rebuilding) or minor relocation of
existing electric transmission lines (230 kV or less) 25 miles in
length or less to enhance environmental and land use values or to
improve reliability or access. Such actions include relocations to
avoid right-of-way encroachments,
[[Page 29657]]
resolve conflict with property development, accommodate road/highway
construction, allow for the construction of facilities such as canals
and pipelines, or reduce existing impacts on environmentally sensitive
areas;
(D) Repowering or uprating modifications or expansion of an
existing unit(s) up to a rating of 50 average MW at electric generating
facilities in order to maintain or improve the efficiency, capacity, or
energy output of the facility. Any air emissions from such activities
must be within the limits of an existing air permit;
(E) Installation of new generating units or replacement of existing
generating units at an existing hydroelectric facility or dam which
results in no change in the normal maximum surface area or normal
maximum surface elevation of the existing impoundment. All supporting
facilities and new related electric transmission lines 10 miles in
length or less are included;
(F) Installation of a heat recovery steam generator and steam
turbine with a rating of 200 average MW or less on an existing electric
generation site for the purpose of combined cycle operations. All
supporting facilities and new related electric transmission lines 10
miles in length or less are included;
(G) Construction of small electric generating facilities (except
geothermal and solar electric projects), including those fueled with
wind or biomass, with a rating of 10 average MW or less. All supporting
facilities and new related electric transmission lines 10 miles in
length or less are included;
(H) Siting, construction, and operation of small biomass projects
(except small electric generating facilities projects fueled with
biomass) producing not more than 3 million gallons of liquid fuel or
300,000 million British thermal units annually, developed on up 10
acres of land;
(I) Geothermal electric power projects or geothermal heating or
cooling projects developed on up to 10 acres of land and including
installation of one geothermal well for the production of geothermal
fluids for direct use application (such as space or water heating/
cooling) or for power generation. All supporting facilities and new
related electric transmission lines 10 miles in length or less are
included;
(J) Solar electric projects or solar thermal projects developed on
up to 10 acres of land including all supporting facilities and new
related electric transmission lines 10 miles in length or less;
(K) Distributed resources of any capacity located at or adjacent to
an existing landfill site or wastewater treatment facility that is
powered by refuse-derived fuel. All supporting facilities and new
related electric transmission lines 10 miles in length or less are
included;
(L) Small conduit hydroelectric facilities having a total installed
capacity of not more than 5 average MW using an existing conduit such
as an irrigation ditch or a pipe into which a turbine would be placed
for the purpose of electric generation. All supporting facilities and
new related electric transmission lines 10 miles in length or less are
included; and
(M) Modifications or enhancements to existing facilities or
structures that would not substantially change the footprint or
function of the facility or structure and that are undertaken for the
purpose of improving energy efficiency (including heat rate
efficiency), promoting pollution prevention or control, safety,
reliability, or security. This includes, but is not limited to,
retrofitting existing facilities to produce biofuels and replacing
fossil fuels used to produce heat or power in biorefineries with
renewable biomass. This also includes installation of fuel blender
pumps and associated changes within an existing fuel facility.
(25) (USDA-25d-RD) Repairs made because of an emergency situation
to return to service damaged facilities of an applicant's utility
system or other actions necessary to preserve life and control the
immediate impacts of the emergency.
(26) (USDA-26d-USFS) Construction and reconstruction of trails.
Examples include, but are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook,
and
(ii) Reconstructing an existing trail to allow use by handicapped
individuals.
(27) (USDA-27d-USFS) Additional construction or reconstruction of
existing telephone or utility lines in a designated corridor. Examples
include, but are not limited to:
(i) Replacing an underground cable trunk and adding additional
phone lines, and
(ii) Reconstructing a power line by replacing poles and wires.
(28) (USDA-28d-USFS) Approval, modification, or continuation of
special uses that require less than 20 acres of NFS lands. Subject to
the preceding condition, examples include but are not limited to:
(i) Approving the construction of a meteorological sampling site;
(ii) Approving the use of land for a one-time group event;
(iii) Approving the construction of temporary facilities for
filming of staged or natural events or studies of natural or cultural
history;
(iv) Approving the use of land for a utility corridor that crosses
a national forest;
(v) Approving the installation of a driveway or other facilities
incidental to use of a private residence; and
(vi) Approving new or additional communication facilities,
associated improvements, or communication uses at a site already
identified as available for these purposes.
(29) (USDA-29d-USFS) Regeneration of an area to native tree
species, including site preparation that does not involve the use of
herbicides or result in vegetation type conversion. Examples include,
but are not limited to:
(i) Planting seedlings of superior trees in a progeny test site to
evaluate genetic worth, and
(ii) Planting trees or mechanical seed dispersal of native tree
species following a fire, flood, or landslide.
(30) (USDA-30d-USFS) Timber stand and/or wildlife habitat
improvement activities that do not include the use of herbicides or do
not require more than 1 mile of low standard road construction.
Examples include, but are not limited to:
(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire
hazard including the opening of an existing road to a dense timber
stand;
(iii) Prescribed burning to control understory hardwoods in stands
of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve
plant vigor.
(31) (USDA-31d-USFS) Modification or maintenance of stream or lake
aquatic habitat improvement structures using native materials or normal
practices. Examples include, but are not limited to:
(i) Reconstructing a gabion with stone from a nearby source;
(ii) Adding brush to lake fish beds; and
(iii) Cleaning and resurfacing a fish ladder at a hydroelectric
dam.
(32) (USDA-32d-USFS) Short-term (1 year or less) mineral, energy,
or geophysical investigations and their incidental support activities
that may require cross-country travel by vehicles and equipment,
construction of less than 1 mile of low standard road, or use and minor
repair of existing roads. Examples include, but are not limited to:
(i) Authorizing geophysical investigations which use existing roads
[[Page 29658]]
that may require incidental repair to reach sites for drilling core
holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or
surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for
investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an
approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of
an existing road and the construction of 1-3 mile of temporary road;
clearing vegetation from an acre of land for trenches, drill pads, or
support facilities.
(33) (USDA-33d-USFS) Implementation or modification of minor
management practices to improve allotment condition or animal
distribution. Examples include, but are not limited to:
(i) Rebuilding a fence to improve animal distribution;
(ii) Adding a stock watering facility to an existing water line;
and
(iii) Spot seeding native species of grass or applying lime to
maintain forage condition.
(34) (USDA-34d-USFS) Post-fire rehabilitation activities, not to
exceed 4,200 acres (such as tree planting, fence replacement, habitat
restoration, heritage site restoration, repair of roads and trails, and
repair of damage to minor facilities such as campgrounds), to repair or
improve lands unlikely to recover to a management approved condition
from wildland fire damage, or to repair or replace minor facilities
damaged by fire. Such activities:
(i) Shall be conducted consistent with Agency and departmental
procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(iii) Shall be completed within 3 years following a wildland fire.
(35) (USDA-35d-USFS) Harvest of live trees not to exceed 70 acres,
requiring no more than \1/2\ mile of temporary road construction. Do
not use this category for even-aged regeneration harvest or vegetation
type conversion. The proposed action may include incidental removal of
trees for landings, skid trails, and road clearing. Examples include,
but are not limited to:
(i) Removal of individual trees for sawlogs, specialty products, or
fuelwood, and
(ii) Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
(36) (USDA-36d-USFS) Salvage of dead and/or dying trees not to
exceed 250 acres, requiring no more than \1/2\ mile of temporary road
construction. The proposed action may include incidental removal of
live or dead trees for landings, skid trails, and road clearing.
Examples include, but are not limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice event
and construction of a short temporary road to access the damaged trees,
and
(ii) Harvest of fire-damaged trees.
(37) (USDA-37d-USFS) Commercial and non-commercial sanitation
harvest of trees to control insects or disease not to exceed 250 acres,
requiring no more than \1/2\ mile of temporary road construction,
including removal of infested/infected trees and adjacent live
uninfested/uninfected trees as determined necessary to control the
spread of insects or disease. The proposed action may include
incidental removal of live or dead trees for landings, skid trails, and
road clearing. Examples include, but are not limited to:
(i) Felling and harvest of trees infested with southern pine
beetles and immediately adjacent uninfested trees to control expanding
spot infestations, and
(ii) Removal and/or destruction of infested trees affected by a new
exotic insect or disease, such as emerald ash borer, Asian long horned
beetle, and sudden oak death pathogen.
(38) (USDA-38d-USFS) Land management plans, plan amendments, and
plan revisions developed in accordance with 36 CFR part 219 et seq.
that provide broad guidance and information for project and activity
decision-making in a NFS unit. (The plan approval document required by
36 CFR part 219 satisfies the documentation requirement for this
categorical exclusion.) Proposals for actions that approve projects and
activities, or that command anyone to refrain from undertaking projects
and activities, or that grant, withhold or modify contracts, permits or
other formal legal instruments, are outside the scope of this category
and shall be considered separately under USDA NEPA procedures.
(39) (USDA-39d-USFS) Approval of a Surface Use Plan of Operations
for oil and natural gas exploration and initial development activities,
associated with or adjacent to a new oil and/or gas field or area, so
long as the approval will not authorize activities in excess of any of
the following:
(i) One mile of new road construction;
(ii) One mile of road reconstruction;
(iii) Three miles of individual or co-located pipelines and/or
utilities disturbance; or
(iv) Four drill sites.
(40) (USDA-40d-USFS) Restoring wetlands, streams, riparian areas or
other water bodies by removing, replacing, or modifying water control
structures such as, but not limited to, dams, levees, dikes, ditches,
culverts, pipes, drainage tiles, valves, gates, and fencing, to allow
waters to flow into natural channels and floodplains and restore
natural flow regimes to the extent practicable where valid existing
rights or special use authorizations are not unilaterally altered or
canceled. Examples include but are not limited to:
(i) Repairing an existing water control structure that is no longer
functioning properly with minimal dredging, excavation, or placement of
fill, and does not involve releasing hazardous substances;
(ii) Installing a newly-designed structure that replaces an
existing culvert to improve aquatic organism passage and prevent
resource and property damage where the road or trail maintenance level
does not change;
(iii) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change; and
(iv) Removing a small earthen and rock fill dam with a low hazard
potential classification that is no longer needed.
(41) (USDA-41d-USFS) Removing and/or relocating debris and sediment
following disturbance events (such as floods, hurricanes, tornados,
mechanical/engineering failures, etc.) to restore uplands, wetlands, or
riparian systems to pre-disturbance conditions, to the extent
practicable, such that site conditions will not impede or negatively
alter natural processes. Examples include but are not limited to:
(i) Removing an unstable debris jam on a river following a flood
event and relocating it back in the floodplain and stream channel to
restore water flow and local bank stability;
(ii) Clean-up and removal of infrastructure flood debris, such as,
benches, tables, outhouses, concrete, culverts, and asphalt following a
hurricane from a stream reach and adjacent wetland area; and
(iii) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering
[[Page 29659]]
techniques following a flood event, including the use of living and
nonliving plant materials in combination with natural and synthetic
support materials, such as rocks, riprap, geo-textiles, for slope
stabilization, erosion reduction, and vegetative establishment and
establishment of appropriate plant communities (bank shaping and
planting, brush mattresses, log, root wad, and boulder stabilization
methods).
(42) (USDA-42d-USFS) Activities that restore, rehabilitate, or
stabilize lands occupied by roads and trails, including unauthorized
roads and trails and National Forest System (NFS) roads and NFS trails,
to a more natural condition that may include removing, replacing, or
modifying drainage structures and ditches, reestablishing vegetation,
reshaping natural contours and slopes, reestablishing drainage-ways, or
other activities that would restore site productivity and reduce
environmental impacts. Examples include but are not limited to:
(i) Decommissioning a road to a more natural state by restoring
natural contours and removing construction fills, loosening compacted
soils, revegetating the roadbed and removing ditches and culverts to
reestablish natural drainage patterns;
(ii) Restoring a trail to a natural state by reestablishing natural
drainage patterns, stabilizing slopes, reestablishing vegetation, and
installing water bars; and
(iii) Installing boulders, logs, and berms on a road segment to
promote naturally regenerated grass, shrub, and tree growth.
(43) (USDA-43d-USFS) Construction, reconstruction, decommissioning,
relocation, or disposal of buildings, infrastructure, or other
improvements at an existing administrative site, as that term is
defined in section 502(1) of Public Law 109-54 (119 Stat. 559; 16
U.S.C. 580d note). Examples include but are not limited to:
(i) Relocating an administrative facility to another existing
administrative site;
(ii) Construction, reconstruction, or expansion of an office, a
warehouse, a lab, a greenhouse, or a fire-fighting facility;
(iii) Surface or underground installation or decommissioning of
water or waste disposal system infrastructure;
(iv) Disposal of an administrative building; and
(v) Construction or reconstruction of communications
infrastructure.
(44) (USDA-44d-USFS) Construction, reconstruction, decommissioning,
or disposal of buildings, infrastructure, or improvements at an
existing recreation site, including infrastructure or improvements that
are adjacent or connected to an existing recreation site and provide
access or utilities for that site. Recreation sites include but are not
limited to campgrounds and camping areas, picnic areas, day use areas,
fishing sites, interpretive sites, visitor centers, trailheads, ski
areas, and observation sites. Activities within this category are
intended to apply to facilities located at recreation sites managed by
the Forest Service and those managed by concessioners under a special
use authorization. Examples include but are not limited to:
(i) Constructing, reconstructing, or expanding a toilet or shower
facility;
(ii) Constructing or reconstructing a fishing pier, wildlife
viewing platform, dock, or other constructed feature at a recreation
site;
(iii) Installing or reconstructing a water or waste disposal
system;
(iv) Constructing or reconstructing campsites;
(v) Disposal of facilities at a recreation site;
(vi) Constructing or reconstructing a boat landing;
(vii) Replacing a chair lift at a ski area;
(viii) Constructing or reconstructing a parking area or trailhead;
and
(ix) Reconstructing or expanding a recreation rental cabin.
(45) (USDA-45d-USFS) Road management activities on up to 8 miles of
National Forest System (NFS) roads and associated parking areas.
Activities under this category cannot include construction or
realignment. Examples include but are not limited to:
(i) Rehabilitating an NFS road or parking area where management
activities go beyond repair and maintenance;
(ii) Shoulder-widening or other safety improvements within the
right-of-way for an NFS road; and
(iii) Replacing a bridge along an NFS road.
(46) (USDA-46d-USFS) Construction and realignment of up to 2 miles
of National Forest System (NFS) roads and associated parking areas.
Examples include but are not limited to:
(i) Constructing an NFS road to improve access to a trailhead or
parking area;
(ii) Rerouting an NFS road to minimize resource impacts; and
(iii) Improving or upgrading the surface of an NFS road to expand
its capacity.
(47) (USDA-47d-USFS) Forest and grassland management activities
with a primary purpose of meeting restoration objectives or increasing
resilience. Activities to improve ecosystem health, resilience, and
other watershed and habitat conditions may not exceed 2,800 acres.
(i) Activities to meet restoration and resilience objectives may
include, but are not limited to:
(A) Stream restoration, aquatic organism passage rehabilitation, or
erosion control;
(B) Invasive species control and reestablishment of native species;
(C) Prescribed burning;
(D) Reforestation;
(E) Road and/or trail decommissioning (system and non-system);
(F) Pruning;
(G) Vegetation thinning; and
(H) Timber harvesting.
(ii) The following requirements or limitations apply to this
category:
(A) Projects shall be developed or refined through a collaborative
process that includes multiple interested persons representing diverse
interests;
(B) Vegetation thinning or timber harvesting activities shall be
designed to achieve ecological restoration objectives, but shall not
include salvage harvesting as defined in Agency policy; and
(C) Construction and reconstruction of permanent roads is limited
to 0.5 miles. Construction of temporary roads is limited to 2.5 miles,
and all temporary roads shall be decommissioned no later than 3 years
after the date the project is completed. Projects may include repair
and maintenance of National Forest System (NFS) roads and trails to
prevent or address resource impacts; repair and maintenance of NFS
roads and trails is not subject to the above mileage limits.
Sec. 1b.5 Environmental assessments.
(a) Generally. If an action is subject to NEPA, as determined
following the policy in Sec. 1b.2(e), and unless a USDA subcomponent
finds that the proposed action is excluded from having to prepare an
environmental assessment or environmental impact statement pursuant to
a categorical exclusion as determined following the policy in Sec.
1b.2(f), or by another provision of law, when USDA is the lead agency
the USDA subcomponent will prepare an environmental assessment with
respect to a proposed action that does not have a reasonably
foreseeable significant impact on the quality of the human environment,
or if the significance of such effect is unknown. USDA is mindful of
Congress' direction that environmental assessments are to be
``concise'' and set forth the basis of the subcomponent's analysis to
support, if
[[Page 29660]]
appropriate, a finding of no significant impact (NEPA section
106(b)(2); 42 U.S.C. 4336(b)(2).
(b) Scope of analysis. (1) In preparing the environmental
assessment, the USDA subcomponent will focus its analysis on whether
the environmental effects of the proposed action (and action
alternatives, if any) or project at hand are significant.
(2) Similarly, the USDA subcomponent will document in the
environmental assessment where and how it drew a reasonable and
manageable line relating to its consideration of any environmental
effects from the proposed action (and action alternatives, if any) or
project at hand that extend outside the geographical territory of the
proposal or might materialize later in time.
(3) To the extent it assists in reasoned decision-making, the USDA
subcomponent may, but is not required to by NEPA, analyze environmental
effects from other actions separate in time, or separate in place, or
that fall outside of the USDA subcomponent's regulatory authority, or
that would have to be initiated by a third party. If the USDA
subcomponent determines that such analysis would assist it in reasoned
decision-making, it will document this determination in the
environmental assessment and explain where it drew a reasonable and
manageable line relating to the consideration of such effects from such
separate actions.
(c) Elements. For the purpose of providing evidence and analysis
for determining whether to prepare an environmental impact statement or
a finding of no significant impact, USDA subcomponents may apply any
format they choose for the environmental assessment, but shall address
the following elements at a minimum:
(1) Purpose and need for the proposal. The purpose and need should
generally be based on the USDA subcomponent's statutory authority. When
a subcomponent's statutory duty is to review an application for
authorization, the subcomponent may base the purpose and need on the
goals of the applicant and the subcomponent's authority.
(2) No action, proposed action, and alternatives (if any). (i) No
action may be listed as a stand-alone alternative but is not required.
The consequences of taking no action, however, shall be included as
part of the environmental impacts analysis to contrast the impacts of
the proposed action, and any alternative(s) if developed, with the
current condition and expected future condition if the proposed action
or alternative were not implemented.
(ii) Alternatives may be included to the extent required by NEPA
section 102(2)(H), 42 U.S.C. 4332(2)(H). When there are no unresolved
conflicts concerning alternative uses of available resources, the
environmental assessment need only analyze the proposed action and may
proceed without consideration of additional alternatives.
(iii) Where conflicts have been resolved during development of the
proposed action or during the environmental analysis process through
iterative modifications to the proposed action--such as addition of
design criteria for the proposed action, changing the activities
proposed, or adjusting locations of where activities are proposed--this
should be described in the environmental assessment as rationale for
why additional alternatives were not developed.
(3) Potentially affected environment and environmental impacts.
Succinctly describe the potentially affected environment that may be
affected by the proposed action and alternatives (if any) under
consideration. The environmental assessment may combine the potentially
affected environment description with evaluation of the environmental
consequences, and it should be no longer than is necessary to provide
context for the effects of the proposed action and alternatives (if
any). Briefly discuss the reasonably foreseeable environmental impacts
of the proposed action and alternatives (if any) and provide sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact,
taking into consideration the potential for reasonably foreseeable
significant impacts as outlined in Sec. 1b.2(f)(3).
(4) Agencies and persons consulted. Provide a succinct list of
agencies and persons consulted.
(5) Other environmental reviews. Briefly document determinations
for compliance with other applicable laws or regulations, as deemed
necessary by the responsible official. When effects analysis is
completed to demonstrate compliance with other applicable environmental
laws, regulations, or executive orders and already addresses a resource
being considered for effects under NEPA (e.g., analysis completed for
Endangered Species Act, National Historic Preservation Act, Clean Water
Act, etc.) and it is clear from that analysis and compliance discussion
that no reasonably foreseeable significant impact exists, the
responsible official may rely on that analysis to inform their finding
of no significant impact.
(6) Certifying statements for page limit and deadline. The
responsible official shall certify the environmental assessment
complies with the page limit and deadline required by NEPA.
Certification statements shall apply the criteria in paragraphs (d)(4)
and (h) of this section.
(d) Page limits--(1) Length of text. The text of an environmental
assessment will not exceed 75 pages, not including citations or
appendices.
(2) Appendices. Appendices are to be used for voluminous materials,
such as scientific tables, collections of data, statistical
calculations, and the like, which substantiate the analysis provided in
the environmental assessment. Appendices are not to be used to provide
additional substantive analysis, because that would circumvent the
Congressionally mandated page limits.
(3) Page formatting. Environmental assessments shall be formatted
for an 8.5 by 11 inches page with one-inch margins using a word
processor with 12-point proportionally spaced font, single spaced.
Footnotes may be in 10-point font. Such size restrictions do not apply
to explanatory maps, diagrams, graphs, tables, and other means of
graphically displaying quantitative or geospatial information, although
pages containing such material do count towards the page limit. When an
item of graphical material is larger than 8.5 by 11 inches, each such
item will count as one page.
(4) Certification related to page limits. The breadth and depth of
analysis in an environmental assessment will be tailored to ensure that
the environmental analysis does not exceed this page limit. In this
regard, as part of the finalization of the environmental assessment, a
responsible official will certify (and the certification will be
incorporated into the environmental assessment) that the USDA
subcomponent has considered the factors mandated by NEPA; that the
environmental assessment represents the subcomponent's good-faith
effort to prioritize documentation of the substantive issues and most
important considerations required by the Act within the congressionally
mandated page limits; that this prioritization reflects the
subcomponent's expert judgment; and that any issues or considerations
addressed briefly or left unaddressed were, in the subcomponent's
judgment, comparatively not of a substantive nature (see Sec.
1b.11(53) of this part).
(e) Deadlines. As the Supreme Court has repeatedly held, NEPA is
governed
[[Page 29661]]
by a ``rule of reason'' and Congress established deadlines for the
environmental assessment process in the 2023 revision of NEPA (NEPA
section 107(g), 42 U.S.C. 4336a(g)). Thus, USDA subcomponents will
complete the environmental assessment not later than the date that is
one (1) year after the sooner of, as applicable:
(1) The date on which such agency (or subcomponent) determines that
NEPA section 106(b)(2), 42 U.S.C. 4336(b)(2) requires the preparation
of an environmental assessment with respect to such action. For
internally driven proposals, this determination should not be made
until a proposed action is finalized and determined by the responsible
official to be ready for interdisciplinary review. For externally-
driven proposals (e.g., applications) submitted to a USDA subcomponent
which require preparation of an environmental assessment, the
responsible official should not make a determination that an action
requires the issuance of an environmental assessment until receiving an
application the responsible official deems complete and final;
(2) The date on which such agency (or subcomponent) notifies the
applicant that the application to establish a right-of-way for such
action is complete; or
(3) The date on which such agency (or subcomponent) issues a notice
of intent to prepare the environmental assessment for such action. If
the subcomponent determines that it will prepare an environmental
assessment for a proposed action, the subcomponent may publish notice
of intent to publish an environmental assessment. Publication of a
notice of intent in the Federal Register for an environmental
assessment should be the exception rather than the norm and should only
be done for those proposals that are of a more complex scope or scale,
such as proposals that are regional or national in scope or other
instances for which there are numerous cooperating agencies, or
interested or affected parties, given the scope of the actions or scale
of the proposal.
(f) Publication of the environmental assessment. USDA subcomponents
shall make the environmental assessment available to the public on a
USDA website. At the time the environmental assessment is published on
the website, it shall be considered complete and conclude the timeline
for the environmental assessment. The USDA subcomponent will publish
the environmental assessment (unless the deadline is extended pursuant
to paragraph (g) of this section), at the latest, on the day the
deadline elapses, in as substantially complete form as is possible.
(g) Deadline extensions. The deadlines described in paragraph (e)
of this section indicate Congress' determination that an agency has
presumptively spent a reasonable amount of time on analysis and the
document should issue, absent very unusual circumstances. In such
circumstances an extension will be given only for such as time as is
necessary to complete the analysis. If a USDA subcomponent determines
it is not able to meet the deadline prescribed by NEPA section
107(g)(1)(B), 42 U.S.C. 4336a(g)(1)(B), it must consult with the
applicant, if any, pursuant to NEPA section 107(g)(2), 42 U.S.C.
4336a(g)(2). After such consultation, if needed, and for cause stated,
it may establish a new deadline. If an extension is approved, the new
deadline will be documented in writing and included in the proposal
record. The documentation of the new deadline will specify the reason
why the environmental assessment was not able to be completed under the
statutory deadline and whether the applicant consented to the new
deadline. The responsible official should consider if other agencies or
persons consulted as part of preparing the environmental assessment
need to be notified of the change in the deadline.
(1) Cause for establishing a new deadline is only established if
the environmental assessment is so incomplete, at the time at which the
USDA subcomponent determines it is not able to meet the statutory
deadline, that publication pursuant to paragraph (f) of this section
would, in the responsible official's judgment, result in an inadequate
analysis that does not meaningfully inform the responsible official's
final decision regarding the proposed action or selected alternative
(if applicable). Such new deadline must provide only so much additional
time as is necessary to complete such environmental assessment.
(2) USDA subcomponents shall coordinate with the USDA Senior Agency
Official (Undersecretary of Natural Resources and Environment), or the
applicable mission area Under Secretary or other USDA official with
delegated authority, prior to extending the deadline for an
environmental assessment, in accordance with Sec. 1b.2(b)(5)(iv).
(h) Certification Related to Deadline. When the environmental
assessment (EA) is published, the responsible official will certify
(and the certification will be incorporated into the environmental
assessment) that the resulting EA represents the USDA subcomponent's
good-faith effort to fulfill NEPA's requirements within the
Congressional timeline; that such effort is substantially complete;
that, in the subcomponent's expert opinion, it has thoroughly
considered the factors mandated by NEPA; and that, in the responsible
official's judgment, the analysis contained therein is adequate to
inform and reasonably explain the responsible official's finding
regarding the proposed action or selected alternative.
Sec. 1b.6 Finding of no significant impact.
(a) General. When a USDA subcomponent is the lead agency, it will
prepare a finding of no significant impact if the subcomponent
determines, based on the environmental assessment, not to prepare an
environmental impact statement because the proposed action or selected
alternative, or project at hand, will not have a reasonably foreseeable
significant impact on the quality of the human environment. When it
will not prevent the USDA subcomponent from meeting the deadline in
Sec. 1b.5(e), the finding of no significant impact may be prepared in
conjunction with the environmental assessment and included in the same
document and will not count towards the page limits in Sec. 1b.5(d).
(b) Elements. USDA subcomponents may apply any format they choose
for the FONSI, but shall address the following elements at a minimum:
(1) Incorporate by reference the environmental assessment and note
any other documentation related to it, such as documentation contained
in the proposal record. The finding need not repeat any of the
discussion in the environmental assessment;
(2) Include a statement of the selected alternative if other
alternatives were considered and analyzed in detail in addition to the
proposed action;
(3) Document the reasons why the responsible official has
determined that the proposed action or selected alternative will not
have a reasonably foreseeable significant impact on the quality of the
human environment, based on analysis and evidence provided in the
environmental assessment, and conclude with a statement that for these
reasons an environmental impact statement will not be prepared. If the
responsible official finds no significant impacts based on mitigation,
state the authority for any mitigation that the responsible official
has adopted and any applicable monitoring or enforcement provisions. If
the responsible official finds no significant effects based on
mitigation, the mitigated finding of no significant
[[Page 29662]]
impact will state any mitigation requirements enforceable by the
subcomponent or voluntary mitigation commitments that will be
undertaken to avoid significant effects, and any applicable monitoring
or enforcement provisions.
(4) A statement regarding when implementation of the action is
anticipated to begin; and
(5) Include the date issued and the signature of the responsible
official.
(c) Other documentation consideration. If a statute or regulation
explicitly requires a decision document to approve actions analyzed in
an environmental assessment, the finding of no significant impact can
be retitled to indicate its function as a decision document.
(d) Publication of the finding of no significant impact (FONSI).
When the FONSI is not included in the same document as the
environmental assessment, as permitted in paragraph (a) of this
section, the USDA subcomponents shall make the FONSI available to the
public on the USDA website where the environmental assessment is
published.
(e) Notification. The responsible official shall notify any
agencies or persons consulted, as identified in the environmental
assessment, that the FONSI is available. Notification shall be in the
manner of communication used to consult with the agency or person.
(f) Timing of action. Once the USDA subcomponent has published the
FONSI on the USDA website and provided necessary notifications (as
required in paragraph (e) of this section), and unless other statutes
or regulations require otherwise, the USDA subcomponent or applicant
may begin implementing the action.
Sec. 1b.7 Environmental impact statements.
(a) Generally. A USDA subcomponent will prepare an environmental
impact statement only with respect to proposed actions that otherwise
require preparation of an environmental document and that have a
reasonably foreseeable significant impact on the quality of the human
environment (NEPA section 106(b)(1); 42 U.S.C. 4336(b)(1)). Whether an
action rises to the level of significant is a matter of the responsible
official's expert judgment, as informed by interdisciplinary analysis.
Environmental impact statements will discuss effects in proportion to
their reasonably foreseeable significance. With respect to issues that
are not of a substantive nature (see Sec. 1b.11(53)) there will be no
more than the briefest possible discussion to explain why those issues
are not substantive and therefore not deemed necessary, at the sole
discretion of the responsible official, of any further analysis.
Environmental impact statements will be analytic, concise, and no
longer than necessary to comply with NEPA in light of the
congressionally mandated page limits and deadlines.
(b) Notice of intent. As soon as practicable after determining that
a proposal is sufficiently developed to allow for meaningful public
comment and requires an environmental impact statement, when a USDA
subcomponent is the lead agency it will publish a notice of intent in
the Federal Register to prepare an environmental impact statement.
Where there is a lengthy delay between the USDA subcomponent's decision
to prepare an environmental impact statement and the time of actual
preparation, the subcomponent may publish the notice of intent at a
reasonable time in advance of preparation of the statement.
(1) The notice of intent to publish an environmental impact
statement shall include:
(i) The purpose and need for the proposed action;
(ii) A preliminary description of the proposed action and any known
alternatives the environmental impact statement will consider;
(iii) A preliminary list of substantive issues to be analyzed in
detail, with a brief summary of expected impacts for each issue;
(iv) Anticipated permits and other authorizations (i.e.,
anticipated related actions);
(v) A schedule for the decision-making process;
(vi) A description of the public scoping process, if any, including
any scoping meeting(s);
(vii) Identification of any cooperating and participating agencies
(i.e., agencies responsible for related actions), and any information
that such agencies require in the notice to facilitate their decisions
or authorizations;
(viii) a request for public comment on alternatives or effects and
on relevant information, studies, or analyses with respect to the
proposal (NEPA section 107(c); 42 U.S.C. 4336a(c));
(ix) A link to the website where additional information about the
proposal can be found, to include publication of the environmental
impact statement and record of decision, as required by paragraph (n)
of this section and Sec. 1b.8(c); and
(x) Contact information for a person within the lead agency who can
answer questions about the proposed action and the environmental impact
statement.
(2) A USDA subcomponent may publish a notice in the Federal
Register to inform the public of a pause in its preparation of an
environmental impact statement.
(3) USDA subcomponents shall publish a notice of intent in the
Federal Register if a decision is made to withdraw the intent to
complete an environmental impact statement, or to withdraw an
environmental impact statement already filed with the Environmental
Protection Agency (see paragraph (o) of this section).
(c) Scoping. When a USDA subcomponent is the lead agency, the
subcomponent may use an early and open process to determine the scope
of issues and alternatives for analysis in an environmental impact
statement, including identifying substantive issues (see Sec.
1b.11(23) and (53)) and eliminating from further study non-substantive
issues and action alternatives that are not technically or economically
feasible or do not meet the purpose and need of the proposal (NEPA
section 102(2)(C)(iii), 42 U.S.C. 4332(2)(C)(iii)). Scoping may begin
as soon as practicable after the proposal is sufficiently developed for
consideration. Scoping may include appropriate pre-application
procedures or work conducted prior to publication of the notice of
intent. Scoping is not a statutorily required step in the NEPA review
procedures and there is no prescribed process or procedure required for
scoping. If a USDA subcomponent is the lead agency, and the responsible
official chooses to apply a scoping process, the subcomponent may, as
appropriate:
(1) Invite the participation of likely affected Federal, State,
Tribal, and local agencies and governments, the applicant, and other
likely affected or interested persons;
(2) Hold a scoping meeting or meetings, publish scoping
information, or use other means to communicate with those persons or
agencies who may be interested or affected, which the subcomponent may
integrate with any other early planning meeting; and
(3) Take responsibility for the following:
(i) Allocate assignments for preparation of the environmental
impact statement when there are joint and/or cooperating agencies, with
the lead agency retaining responsibility for the statement;
(ii) Identify and eliminate from detailed study the issues that are
not substantive or have been covered by prior environmental review(s),
narrowing the discussion of these issues in the environmental impact
statement
[[Page 29663]]
to a brief presentation of why they are not of a substantive nature
that meaningfully informed the consideration of environmental effects
and the resulting decision on how to proceed;
(iii) Identify and eliminate from detailed study action
alternatives that are not technically or economically feasible or do
not meet the purpose and need of the proposal (NEPA section
102(2)(C)(iii), 42 U.S.C. 4332(2)(C)(iii));
(iv) Indicate any public environmental assessments and other
environmental impact statements that are being or will be prepared and
are related to, but are not part of, the scope of the impact statement
under consideration;
(v) Identify other environmental review, authorization, and
consultation requirements to allow for other required analyses and
studies to be prepared concurrently and integrated with the
environmental impact statement and ensure any joint and/or cooperating
agencies have shared understanding of their role in meeting these
requirements;
(vi) Indicate the relationship between the timing of the
preparation of the environmental impact statement and the
subcomponent's (or agencies') tentative planning and decision-making
schedule; and
(vii) Specify the USDA website where additional information will be
provided as the environmental impact statement is developed.
(d) Requesting comments. During the process of preparing an
environmental impact statement, when a USDA subcomponent is the lead
agency, it:
(1) Will request the comments of (NEPA section 102(2)(C), 42 U.S.C.
4332(2)(C)):
(i) Any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact resulting from the
proposed action (or action alternatives), or project at hand, or is
authorized to develop and enforce environmental standards that govern
the proposed action (or action alternatives), or project at hand; and
(ii) Appropriate State, Tribal, and local agencies that are
authorized to develop and enforce environmental standards.
(2) May request the comments of:
(i) State, Tribal, or local governments that may be affected by the
proposed action;
(ii) Any agency that has requested it receive statements on actions
of the kind proposed;
(iii) The applicant, if any; and
(iv) The public, including by affirmatively soliciting comments in
a manner designed to inform those persons or organizations who may be
interested in or affected by the proposed action or action
alternatives.
(3) The process of obtaining and requesting comments may be
undertaken at any time that is determined reasonable by the responsible
official in the process of preparing the environmental impact
statement.
(4) The USDA subcomponent shall ensure that the process of
obtaining and requesting comments, and the responsible official's
subsequent consideration of those comments (as outlined in paragraph
(f) of this section), does not cause the subcomponent to violate the
congressionally mandated deadline for completion of an environmental
impact statement, as specified in paragraph (k) of this section.
(e) Electronic submission and publication of comments. USDA
subcomponents shall:
(1) Provide for electronic submission of comments.
(2) Electronically publish all substantive comments received on an
environmental impact statement, including those received in response to
the notice of intent to prepare an environmental impact statement, or
any other opportunities for comment. If a USDA subcomponent does not
have the capability or capacity to publish substantive comments
electronically, the subcomponent shall include a summary of substantive
comments received, including those received in response to the notice
of intent publication or any other opportunities for comment, as an
appendix in the environmental impact statement.
(f) Considering and addressing substantive comments. A USDA
subcomponent preparing an environmental impact statement:
(1) Shall consider and should address in writing comments that
raise substantive issues and/or recommendations.
(i) Comments shall be analyzed to determine substantive issues
raised (see Sec. 1b.11(23) and (53)) and, if applicable,
recommendations made to remedy the issues.
(ii) Multiple comments regarding the same or similar substantive
issues and/or recommendations may be grouped and paraphrased as one
issue or recommendation. The USDA subcomponent need not address every
comment individually. Rather, the manner and degree to which comments
should be addressed should be commensurate with the degree to which the
comments raise issues and/or recommendations that have bearing on the
proposed action, development of alternatives, or analysis of the
reasonably foreseeable significant impacts of the proposed action or
alternatives.
(2) When addressing in writing substantive issues raised and/or
recommendations made, documentation should focus on identifying the
action the responsible official took in response to the issue and/or
recommendation. The action taken in response to a substantive issue or
recommendation may include:
(i) Modifying alternatives, including the proposed action;
(ii) Developing and evaluating alternatives not previously given
serious consideration by the subcomponent;
(iii) Supplementing, improving, or modifying analyses;
(iv) Consideration of science or literature not previously
considered, if the commenter clearly identifies cause-and-effect issues
relating the literature to the environmental analysis;
(v) Making factual corrections; or
(vi) No action needed. The USDA subcomponent may provide brief
rationale for taking no action, such as: the comment is outside the
scope of what is being proposed; there is no cause-effect relationship
between the actions the subcomponent is proposing and the issue raised
and/or recommendation made; the commenter misinterpreted the
information provided; or the recommendation made does not comply with
applicable laws or regulations and/or is not feasible to implement
(technically or economically) or does not meet the purpose and need of
the proposal, etc.
(3) Where action was taken and when substantive issues and
recommendations are addressed in writing, the USDA subcomponent should,
where feasible, cite to where in the environmental impact statement or
supporting proposal record the indicated action taken is accounted for.
(4) The USDA subcomponent's documentation of how substantive issues
and recommendations were addressed should be included as an appendix in
the environmental impact statement when this will not prevent the
subcomponent from publishing the environmental impact statement within
the deadlines specified in paragraph (k) of this section.
(g) Scope of analysis. (1) In preparing the environmental impact
statement, the USDA subcomponent will focus its analysis on whether the
environmental effects of the proposed action and action alternatives,
or project at hand, are significant.
[[Page 29664]]
(2) Similarly, the USDA subcomponent will document in the
environmental impact statement where and how it drew a reasonable and
manageable line relating to its consideration of any environmental
effects from the proposed action and action alternatives, or project at
hand, that extend outside the geographical territory of the proposal or
might materialize later in time.
(3) To the extent it assists in reasoned decision-making, the USDA
subcomponent may, but is not required to by NEPA, analyze environmental
effects from other actions separate in time, or separate in place, or
that fall outside of the USDA subcomponent's regulatory authority, or
that would have to be initiated by a third party. If the USDA
subcomponent determines that such analysis would assist it in reasoned
decision-making, it will document this determination in the
environmental impact statement and explain where it drew a reasonable
and manageable line relating to the consideration of such effects from
such separate actions.
(h) Elements. Environmental impact statements shall state the
alternatives considered and disclose the difference in anticipated
effects between alternatives. USDA subcomponents may apply any format
they choose for the environmental impact statement, but shall address
the following elements at a minimum:
(1) Cover. The cover shall not exceed two pages, front and back,
and should include the following to convey necessary information
associated with the proposal:
(i) The title of the proposal that is the subject of the statement;
(ii) A list of the responsible agencies, including the lead agency
and any joint or cooperating agencies. Where the number of cooperating
agencies is excessive, the list need only include the types of agencies
participating as cooperating agencies;
(iii) Specification of where the action is located, such as the
State(s), county(ies), or other applicable jurisdiction(s); and
(iv) The name, mailing address, email address, and telephone number
of the person at the lead agency who can supply further information
about the proposal.
(2) Purpose and need for the proposal. The purpose and need should
generally be based on the USDA subcomponent's statutory authority. When
a USDA subcomponent's statutory duty is to review an application for
authorization, the subcomponent may base the purpose and need on the
goals of the applicant and the subcomponent's authority.
(3) Proposed action and alternatives (NEPA sections 102(2)(C)(iii)
and 102(2)(E), 42 U.S.C. 4332(2)(C)(iii) and (2)(E)). The alternatives
section should list the no action alternative and describe the proposed
action and the action alternatives in comparative form based on the
difference in scope and scale of the activities proposed. Negative
environmental impacts of not implementing the proposed action may be
discussed in this section of the environmental impact statement or in
conjunction with environmental impacts, as specified in paragraph
(h)(5)(iv) of this section. In this section, USDA subcomponents shall:
(i) Evaluate a reasonable range of alternatives, in addition to the
proposed action. Alternatives analyzed in detail must be technically
and economically feasible and meet the purpose and need of the proposal
(NEPA section 102(2)(C)(iii), 42 U.S.C. 4332(2)(C)(iii));
(ii) Not commit resources prejudicing selection of alternatives
before making a final decision;
(iii) Briefly discuss the reasons the subcomponent eliminated
alternatives from detailed study; and
(iv) Discuss each alternative considered in detail, including the
proposed action, so that the responsible official may evaluate their
comparative merits.
(4) Potentially affected environment. Succinctly describe the
environment of the area(s) that may potentially be affected by the
alternatives under consideration. The environmental impact statement
may combine the potentially affected environment description with
evaluation of the environmental consequences, and it should be no
longer than is necessary to provide context for the effects of the
alternatives.
(5) Environmental impacts. The environmental impacts section forms
the scientific and analytic basis for the comparisons under
subparagraph (3) above. It shall consolidate the discussions of those
elements required by NEPA sections 102(2)(C)(i), (ii), (iv), and (v),
42 U.S.C. 4332(2)(C)(i)(ii)(iv) and (v), and that are within the scope
of the statement and as much of section 102(2)(C)(iii) of NEPA, section
4332(2)(C)(iii), as is necessary to support the comparisons. This
section should not duplicate discussions outlined in paragraph (h)(3)
of this section. When conducting analysis and documenting
determinations for compliance with other applicable environmental laws,
regulations, or executive orders (e.g., analysis completed for
Endangered Species Act, National Historic Preservation Act, Clean Water
Act, etc.), as deemed necessary by the responsible official, that
analysis may be relied on to inform discussions of significance in the
environmental impact statement. The discussion shall include:
(i) Reasonably foreseeable environmental impacts of the proposed
action and alternatives;
(ii) Any means identified to reduce adverse environmental effects,
such as design criteria included in the proposed action or action
alternatives;
(iii) Any reasonably foreseeable adverse environmental impacts
which cannot be avoided should the proposed action or alternatives be
implemented;
(iv) Consequences of taking no action to contrast the impacts of
the proposed action and alternatives with the current condition and
expected future condition if the proposed action or alternative were
not implemented;
(v) Any adverse environmental impacts or consequences of not
implementing the proposed action or alternatives;
(vi) Any irreversible and irretrievable commitments of Federal
resources which would be involved in the proposed action, or an action
alternative, should it be implemented; and
(vii) The relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity.
(6) Environmental review and consultation requirements, to include
a list of agencies and persons consulted. The environmental impact
statement shall document compliance with other applicable laws or
regulations, as deemed necessary by the responsible official, and list
all Federal permits, licenses, and other authorizations that must be
obtained in implementing the proposed action. If it is uncertain
whether a Federal permit, license, or other authorization is necessary,
the environmental impact statement shall so indicate. Provide a
succinct list of agencies and persons consulted.
(7) Appendices (if any). (i) Appendices in the environmental impact
statement may consist of:
(A) Material prepared in connection with an environmental impact
statement (as distinct from material that is not incorporated by
reference);
(B) Material substantiating any analysis fundamental to the
environmental impact statement; and
(C) Material relevant to the decision to be made.
(ii) See paragraph (e) of this section regarding the need to
provide a
[[Page 29665]]
summary of comments received in response to the publication of the
notice of intent, or any other opportunities for public comment, as an
appendix in the environmental impact statement if comments cannot be
electronically published.
(iii) See paragraph (f)(4) regarding the recommendation to provide
documentation of how comments were addressed as an appendix in the
environmental impact statement.
(iv) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations, and
the like, which substantiate the analysis provided in the environmental
assessment. Appendices are not to be used to provide additional
substantive analysis, because that would circumvent the Congressionally
mandated page limits.
(8) Certifying statements for page limit and deadline. The
responsible official shall certify the environmental impact statement
complies with the page limit and deadline required by NEPA.
Certification statements shall apply the criteria in paragraphs (j) and
(m) of this section.
(i) Page limits. Except as provided in paragraph (i)(1) of this
section, the text of an environmental impact statement will not exceed
150 pages, not including citations or appendices.
(1) An environmental impact statement for a proposal of
extraordinary complexity will not exceed 300 pages, not including any
citations or appendices.
(2) USDA subcomponents shall coordinate with the USDA Senior Agency
Official (Undersecretary of Natural Resources and Environment), or the
applicable mission area Under Secretary or other USDA official with
delegated authority, prior to determining that an environmental impact
statement is of extraordinary complexity.
(3) Environmental impact statements shall be prepared on 8.5 inch
by 11-inch paper with one-inch margins using a word processor with 12-
point proportionally spaced font, single spaced. Footnotes may be in
10-point font. Such size restrictions do not apply to explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information, although pages containing such
material do count towards the page limit. When an item of graphical
material is larger than 8.5 by 11 inches, each such item shall count as
one page.
(j) Certification related to page limits. The breadth and depth of
analysis in an environmental impact statement will be tailored to
ensure that the environmental analysis does not exceed the page limit.
In this regard, as part of the finalization of the environmental impact
statement, a responsible official will certify (and the certification
will be incorporated into the environmental impact statement) that the
USDA subcomponent has considered the factors mandated by NEPA; that the
environmental impact statement represents the subcomponent's good-faith
effort to prioritize documentation of the substantive issues and most
important considerations required by the Act within the congressionally
mandated page limits; that this prioritization reflects the
subcomponent's expert judgment; and that any issues or considerations
addressed briefly or left unaddressed were, in the subcomponent's
judgment, comparatively not of a substantive nature (see Sec.
1b.11(53)).
(k) Deadlines. As the Supreme Court has repeatedly held, NEPA is
governed by a ``rule of reason'' and Congress established deadlines for
the environmental impact statement process in the 2023 revision of NEPA
(NEPA section 107(g), 42 U.S.C. 4336a(g)). A USDA subcomponent will
complete the environmental impact statement not later than the date
that is 2 years after the sooner of, as applicable:
(1) The date on which the subcomponent determines that section
102(2)(C) requires the issuance of an environmental impact statement
with respect to such action. For internally driven proposals, this
determination should not be made until a proposed action is finalized
and determined by the responsible official to be ready for
interdisciplinary review. For externally-driven proposals (e.g.,
applications) to a USDA subcomponent which require preparation of an
environmental impact statement, the responsible official should not
make a determination that an action requires the issuance of an
environmental impact statement until receiving an application the
responsible official deems complete and final.
(2) The date on which the subcomponent notifies the applicant that
the application to establish a right-of-way for such action is
complete; or
(3) The date on which the subcomponent issues a notice of intent to
prepare the environmental impact statement for such action.
(l) End of deadline. The environmental impact statement will be
considered complete at the time it is published on a USDA website and
is not indicated to be a draft. The USDA subcomponent will publish the
environmental impact statement (unless the deadline is extended
pursuant to paragraph (l)(1) of this section) on the day the deadline
elapses, in as substantially complete form as is possible.
(1) Deadline extensions. The deadlines described in paragraph (k)
of this section indicate Congress' determination that an agency has
presumptively spent a reasonable amount of time on analysis and the
document should issue, absent very unusual circumstances. In such
circumstances, an extension will be given only for such as time as is
necessary to complete the analysis. If a USDA subcomponent determines
it is not able to meet the deadline prescribed by NEPA section
107(g)(1)(A), 42 U.S.C. 4336a(g)(1)(A), it must consult with the
applicant, if any, pursuant to NEPA section 107(g)(2), 42 U.S.C.
4336a(g)(2). After such consultation, if needed, and for cause stated,
it may establish a new deadline by getting approval from the USDA
official delegated authority for extending deadlines as specified in
1b.2(b)(2)(iv). If an extension is approved, the new deadline will be
documented in writing and included in the proposal record. The
documentation of the new deadline will specify the reason why the
environmental impact statement was not able to be completed under the
statutory deadline and whether the applicant consented to the new
deadline. The documentation for extending an environmental impact
statement deadline shall be posted on the USDA website specified in the
notice of intent to prepare an environmental impact statement. The
responsible official should consider if other agencies or persons
consulted as part of preparing the environmental impact statement need
to be notified of the change in the deadline.
(2) Cause for deadline extension. Cause for establishing a new
deadline is only established if the environmental impact statement is
so incomplete, at the time at which the USDA subcomponent determines it
is not able to meet the statutory deadline, that issuance pursuant to
paragraph (l) of this section would, in the responsible official's
judgment, result in an inadequate analysis that does not meaningfully
inform the responsible official's final decision regarding the proposed
action or selected alternative. Such new deadline must provide only so
much additional time as is necessary to complete such environmental
impact statement.
(m) Certification related to deadlines. When the environmental
impact statement is published, a responsible official will certify (and
the certification will be incorporated into the
[[Page 29666]]
environmental impact statement) that the resulting environmental impact
statement represents the USDA subcomponent's good-faith effort to
fulfill NEPA's requirements within the Congressional timeline; that
such effort is substantially complete; and that, in the subcomponent's
expert opinion, it has thoroughly considered the factors mandated by
NEPA; and that, in the responsible official's judgment, the analysis
contained therein is adequate to inform and reasonably explain the
responsible official's final decision regarding the proposed action or
selected alternative.
(n) Publishing the environmental impact statement. (1) During the
process of preparing the environmental impact statement, a responsible
official may choose to publish a draft environmental impact statement
and any other pre-decisional materials that, in their judgment, may
assist in fulfilling their responsibilities under NEPA and in
facilitating the request for comments. Any draft environmental impact
statement will be published to the USDA website that was specified in
the notice of intent to prepare an environmental impact statement and
will not be filed with the Environmental Protection Agency until such
time it is considered complete. The responsible official shall ensure
that the process of publishing a draft environmental impact statement
does not cause the subcomponent to violate the congressionally mandated
deadline for completion of an environmental impact statement as
specified in paragraph (k) of this section.
(2) If the responsible official does not publish a draft
environmental impact statement, they will publish the completed
environmental impact statement to the USDA website that was specified
in the notice of intent to prepare an environmental impact statement.
The same version published to the USDA website must also be filed with
the Environmental Protection Agency in accordance with the provision at
paragraph (o) of this section.
(o) Filing the environmental impact statement. USDA subcomponents
shall file completed environmental impact statements with the
Environmental Protection Agency (EPA), Office of Federal Activities,
consistent with EPA's procedures. Subcomponents may file environmental
impact statements with the EPA at the same time they are transmitted to
participating agencies and made available to the public. When the
record of decision is included in the same document as the
environmental impact statement, as permitted in paragraph (a) of Sec.
1b.8, it shall also be filed.
Sec. 1b.8 Records of decision.
(a) General. Upon completing the environmental impact statement, at
the time of its decision a USDA subcomponent, if the lead agency, shall
prepare and publish a record of decision or joint record of decision.
When it will not prevent the USDA subcomponent from meeting the
deadline in Sec. 1b.7(k), the record of decision may be prepared in
conjunction with the environmental impact statement and included in the
same document and will not count towards the page limits in Sec.
1b.7(i). When including the record of decision in the environmental
impact statement (EIS), the EIS cover page should be updated to reflect
the document also includes the record of decision.
(b) Elements. USDA subcomponents may apply any format they choose
for the record of decision, but shall address the following elements at
a minimum:
(1) Incorporate by reference the environmental impact statement and
note any other documentation related to it, such as documentation
contained in the proposal record. The record of decision need not
repeat any of the discussion in the environmental impact statement;
(2) Certify that the subcomponent has considered all the
substantive alternatives, information, and analyses submitted by State,
Tribal, and local governments and public commenters for consideration
by the lead and cooperating agencies in developing the environmental
impact statement;
(3) State the decision, that is, the alternative selected;
(4) Provide explanation on how the responsible official considered
significance, in accordance with Sec. 1b.2(f)(3), relative to the
alternatives described in the environmental impact statement;
(5) Identify and discuss all such factors, including any essential
considerations of national policy, that the responsible official
balanced in making the decision and state how those considerations
informed the decision. The discussion may include preferences among
alternatives based on other relevant factors, such as environmentally
preferable, economic and technical feasibility considerations, and
subcomponent statutory missions;
(6) State any means identified to mitigate adverse environmental
effects of the proposed action or selected alternative. The responsible
official is mindful in this respect that NEPA imposes no substantive
environmental obligations or restrictions and does not require or
authorize the subcomponent to impose any mitigation measures. The
subcomponent shall adopt and summarize, where applicable, a monitoring
and enforcement program for any enforceable mitigation requirements or
commitments;
(7) A statement regarding when implementation of the action is
anticipated to begin; and
(8) Include the date issued and the signature of the responsible
official.
(c) Publication of the ROD. When the ROD is not included in the
same document as the environmental impact statement, as permitted in
paragraph (a) of this section, USDA subcomponents shall make the record
of decision available to the public on the USDA website that was
specified in the notice of intent to prepare an environmental impact
statement.
(d) Notification. The responsible official shall notify any
agencies or persons consulted, as listed in the environmental impact
statement, and any parties that submitted comments during in response
to publication of the notice of intent or any other opportunities for
comment on the environmental impact statement, that the record of
decision has been signed and is available on a USDA website.
Notification shall be in the manner of communication used to consult
with the agency, person, or party.
(e) Timing of action. The Environmental Protection Agency publishes
a notice of availability in the Federal Register each week of the
environmental impact statements filed since its prior notice. Once the
Environmental Protection Agency publishes the notice of availability in
the Federal Register for the environmental impact statement filed by
the USDA subcomponent and the subcomponent has published the record of
decision on a USDA website and provided necessary notifications (as
required in paragraph (d) of this section), and unless other statutes
or regulations require otherwise, the USDA subcomponent or applicant
may begin implementing the action.
Sec. 1b.9 Efficient and effective environmental reviews.
(a) Proposal Record. Upon determining NEPA applies and an
environmental document must be developed, USDA subcomponents should
begin compiling the proposal record early in the process. The proposal
record should be maintained throughout the NEPA process to ensure the
responsible official has all necessary information available on which
they base iterative decisions during the
[[Page 29667]]
NEPA process, required findings and determinations (to include those
required for other applicable laws or regulations), and approval of the
action. The proposal record should include the following:
(1) Internal communications that contain substantive information
demonstrating why the responsible official proceeded the way it did, to
include briefing papers, presentations, emails, or other documented
communications that capture rationale and decisions made at key points
in the NEPA process;
(2) Necessary documentation generated by applicants or contractors,
where documentation is determined not to be a potentially privileged
information (see paragraph (c) of this section);
(3) Technical information, to include sampling results, survey
information, engineering reports, applicable resource and program
assessments, maps, etc.;
(4) Cost-benefit analysis if completed, as well as any technical or
feasibility studies completed to inform development of the proposed
action or action alternatives;
(5) External communications that contain substantive information
about the proposal, to include a notice of intent to prepare an
environmental impact statement and other such documents that invite
feedback from the public or other external parties, and consultation
communications with regulatory agencies and tribes (where information
is not determined to be a potential withholding or privileged, as
specified in paragraph (c) of this section);
(6) Comments or other submissions received from external parties or
the public, as well as documentation, if any, of how substantive issues
raised and/or recommendations made were considered and the action
taken;
(7) Draft versions of any documents circulated externally for
comment or review;
(8) Documents containing guidance or information that the USDA
subcomponent relied on when developing the proposed action (or action
alternatives) or conducting analysis, to include literature and
scientific papers;
(9) Environmental documents, to include updated or supplemental
versions when applicable, as specified in paragraph (r) of this
section;
(10) Finding and determination documents, as well as decision
documents; and
(11) Any other information deemed applicable by the responsible
official.
(b) Freedom of Information Act requests. USDA subcomponents shall
make documents associated with the NEPA review and integrated
environmental review, comments received, and any other underlying
documents available pursuant to the provisions of the Freedom of
Information Act, as amended (5 U.S.C. 552), and in accordance with the
subcomponent's statutory authority for protecting certain information.
(c) Potential withholdings and privileges. USDA subcomponents shall
identify data or information with potential withholdings or
privileges--such as potentially sensitive information about threatened
or endangered species locations, cultural or heritage sites when
certain conditions are met, third-party proprietary information, or
personally identifiable information--and mark it as such in the
proposal record to ensure it is properly reviewed prior to responding
to Freedom of Information Act requests or other such requests for
documentation regarding the NEPA process and other environmental
analysis, consultation, or compliance efforts occurring commensurate
with the NEPA process.
(d) Classified information. To the extent practicable, USDA
subcomponents shall segregate any information that has been classified
pursuant to Executive order or statute. Subcomponents shall maintain
the confidentiality of such information in a manner required for the
information involved. Such information may not be included in any
publicly disclosed documents. If such material cannot be reasonably
segregated, or if segregation would leave essentially meaningless
material, the subcomponent must withhold the entire analysis document
from the public; however, the subcomponent shall otherwise prepare the
analysis documentation in accord with applicable regulations.
(e) Reducing paperwork. USDA subcomponents should avoid excessive
paperwork and shall ensure environmental assessments and environmental
impact statements meet specified page limits established by NEPA
section 107(e), 42 U.S.C. 4336a(e). Recommended best practices for
reducing paperwork include, but are not limited to:
(1) Preparing analytic and concise environmental documents by using
web-based collaboration and document management platforms that allow
for interdisciplinary review and analysis to occur in a centralized
document that reduces redundant and contradictory discussions that can
occur when analysis is documented in a partitioned and individualized
manner;
(2) Compiling and maintaining the proposal record throughout the
NEPA process so information can be efficiently incorporated by
reference when it is appropriate to do so and meets the requirements
specified in paragraph (c)(7) of this section;
(3) Discussing only briefly issues that are not identified as
substantive issues and eliminating from further study non-substantive
issues;
(4) Writing environmental documents and associated analyses in
plain language;
(5) Following a clear format for environmental documents and
associated decision documents that is tailored to address only the
minimum requirements outlined in NEPA and this part;
(6) Integrating NEPA requirements with other environmental review
and consultation requirements, and where appropriate to do so relying
on analyses done to demonstrate compliance with other laws and
regulations to inform findings and determinations made for NEPA;
(7) Incorporating (by reference), into an environmental document,
any applicable material--such as planning studies, analyses, or other
relevant information--developed specifically to support that
environmental document or associated decision document when the effect
will be to cut down on bulk without impeding other agency and public
review of the action; and
(i) USDA subcomponents shall cite the incorporated material in the
document in a manner that identifies the content it contains.
(ii) Subcomponents may not incorporate material by reference unless
it is reasonably available for inspection by potentially interested
persons within the time allowed for comment, when an opportunity for
comment is provided.
(iii) Subcomponents should not incorporate by reference material
with potential withholdings or privileges or that is classified (see
paragraphs (c) and (d) of this section) as such material is not
available for review and comment.
(8) Relying on an existing environmental assessment (EA),
environmental impact statement (EIS), finding of no significant impact
(FONSI), record of decision (ROD), documentation of a finding of
applicability and no extraordinary circumstance (FANEC), or a portion
thereof--to include supporting analysis documentation not included in
an EA, EIS, FONSI, ROD or FANEC documentation itself--provided that the
assessment, statement, finding,
[[Page 29668]]
decision, analyses, or portion thereof provides the information
necessary to inform the required findings or conclusions required for
the level of NEPA being completed. USDA subcomponents may rely on
previous analysis completed by the subcomponent or analysis completed
by any other Federal agency where it makes sense to do so given the
nature of the proposal, the potentially affected environment, and the
anticipated effects.
(i) Environmental impact statements and environmental assessments.
When relying on a previous environmental impact statement or
environmental assessment in full, if the actions covered by the
original document and anticipated effects are substantially the same
for the current proposal being considered, the USDA subcomponent
relying on the previously completed document shall specify the reliance
in the applicable finding or decision document and provide explanation
of how the actions were determined similar and the effects determined
adequate (both quantitatively and qualitatively). For an environmental
impact statement, the document need not be refiled with the
Environmental Protection Agency but shall be published, with the new
record of decision, on a USDA website and included in the proposal
record. For an environmental assessment, the document shall be
published, with the new finding of no significant impact, on a USDA
website and included in the proposal record.
(ii) Categorical exclusions. Refer to Sec. 1b.3(h).
(iii) Other analysis or portions of environmental documents. USDA
subcomponents may also rely on other analysis or portions of
environmental documents when these contain information that supports
necessary NEPA or other environmental law conclusions or determinations
required by provisions of environmental law other than NEPA's
procedural requirements (e.g., those required by Endangered Species
Act, National Historic Preservation Act, Clean Water Act, etc.). The
analysis or environmental document(s) relied upon shall be included in
the proposal record.
(iv) Adequacy of analysis and inclusion in the proposal record. A
brief description shall be provided in the environmental document being
completed as to how the effects analysis being relied on is adequate
(both quantitatively and qualitatively) given the actions being
proposed. The other analysis or environmental documents being relied on
shall be included in the proposal record (as outlined in paragraph (a)
of this section).
(v) Programmatic documents. Refer to paragraph (q) of this section
for discussion on relying on programmatic environmental documents.
(vi) Identification of certain circumstances. When relying on
another environmental document, other analysis, or portion thereof,
USDA subcomponents shall specify if the subcomponent is relying on an
environmental document, other analysis, or portion thereof that is:
(A) Not final within the agency that prepared it;
(B) The subject of an adequacy referral to the Council on
Environmental Quality for NEPA or a referral to the applicable
regulatory agency for other laws (e.g., U.S. Fish and Wildlife Service
for Endangered Species Act compliance); or
(C) The subject of a judicial action that is not final.
(f) Reducing delay. USDA subcomponents should reduce delay in the
environmental review process. For environmental assessments and
environmental impact statements, subcomponents shall ensure documents
are completed within the deadlines specified in NEPA section 107(g), 42
U.S.C. 4336a(g). Recommended best practices for reducing delay include,
but are not limited to:
(1) Establishing (Sec. 1b.3(b)), adopting (Sec. 1b.3(c)), and
applying (Sec. 1b.3(e)) categorical exclusions for categories of
actions that normally do not have a significant effect on the human
environment and therefore do not require preparation of an
environmental assessment or environmental impact statement;
(2) Completing an environmental assessment when an action, which is
not otherwise categorically excluded, is not anticipated to have a
significant effect on the human environment and therefore is not
expected to require preparation of an environmental impact statement;
(3) Integrating considerations of the applicable NEPA process early
in proposed action development;
(4) Integrating NEPA requirements with other environmental review
and consultation requirements;
(5) Designating a person to manage and expedite the NEPA and
overall environmental review process, such as a project manager or an
individual with adequate NEPA and environmental review experience;
(6) Engaging in interagency cooperation before or as the
environmental impact statement is prepared, rather than awaiting
submission of comments;
(7) Identifying and eliminating from detailed study the issues that
are not substantive or have been covered by prior environmental
review(s), and narrowing the discussion of these issues in the effects
analysis to a brief presentation of why they are not of a substantive
nature;
(8) Ensuring swift and fair resolution of lead agency disputes;
(9) Requiring comments received during in response to publication
of a notice of intent to prepare an environmental impact statement, or
other opportunities for comment, to be as specific as possible and, if
documenting how substantive comments were considered, focusing on
documenting the action taken in response to the substantive issues
raised and/or recommendations made; and
(10) Eliminating duplication with State, Tribal, and local
procedures by providing for joint preparation of environmental
documents where practicable (see paragraph (l) of this section), and
with other Federal procedures, by providing that a USDA subcomponent
may rely on appropriate environmental documents or analysis prepared by
another agency (see paragraph (e)(8) of this section).
(g) Interdisciplinary preparation. As required in NEPA section
102(2)(A), 42 U.S.C. 4332(2)(A), USDA subcomponents shall prepare
environmental documents using an interdisciplinary approach that will
ensure the integrated use of the natural and social sciences and the
environmental design arts. The disciplines of the preparers should be
appropriate to the scope and issues identified at the sole discretion
of the responsible official.
(h) Methodology. As required by NEPA section 102(2)(D), 42 U.S.C.
4332(2)(D), USDA subcomponents:
(1) Shall ensure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental documents;
(2) May make use of any reliable data sources, such as remotely
gathered information or statistical models;
(3) Should identify any methodologies used and make explicit
reference to the scientific and other sources relied upon for
conclusions in the environmental document; and
(4) May place discussion of methodology used or list references
cited in the proposal record or include these as an appendix in an
environmental assessment or environmental impact statement.
[[Page 29669]]
(i) Scientific accuracy. USDA subcomponents should make use of
existing credible and reliable scientific resources, data, and evidence
that is relevant to evaluating the reasonably foreseeable impacts on
the human environment. Subcomponents should not undertake new
scientific and technical research to inform its analyses unless it is
essential to a reasoned choice among alternatives and the overall costs
and time frame of such undertaking are not unreasonable.
(j) Information availability. When a USDA subcomponent is
evaluating a proposed action's reasonably foreseeable impacts on the
human environment, and there is incomplete or unavailable information
that cannot be obtained at a reasonable cost or the means to obtain it
are unknown, the subcomponent should make clear in the relevant
environmental document that such information is lacking.
(k) Public involvement. USDA subcomponents may host or sponsor
public hearings, public meetings, or other opportunities for public
involvement as deemed necessary by the responsible official to inform
the decision-making process or in accordance with statutory
requirements applicable to the subcomponent. Subcomponents may conduct
public hearings and public meetings by means of electronic
communication except where another format is required by law. When
selecting appropriate methods for public involvement, subcomponents
should consider the ability of affected entities to access the methods
used. USDA subcomponents:
(1) Should announce opportunities for public involvement on USDA
websites where environmental documents are published.
(2) May provide additional guidance as needed to ensure interested
persons can get information or status reports on environmental
documents and other elements of the NEPA process.
(3) Should establish online platforms or systems that facilitate
the sharing of environmental documents and other information pertinent
to the management of environmental reviews conducted in conjunction
with the applicable level of NEPA.
(l) Elimination of duplication with State, Tribal, and local
procedures. USDA subcomponents may cooperate with State, Tribal, and
local agencies that are responsible for preparing environmental
documents, including those prepared pursuant to NEPA section 102(2)(G),
42 U.S.C. 4332(2)(G). To the fullest extent practicable, unless
specifically prohibited by law, USDA subcomponents will cooperate with
State, Tribal, and local agencies to reduce duplication between NEPA
and State, Tribal, and local requirements, including through use of
studies, analysis, and decisions developed by State, Tribal, or local
agencies. Such cooperation may include:
(1) Joint planning processes;
(2) Joint environmental research and studies;
(3) Joint public hearings (except where otherwise provided by
statute); or
(4) Joint environmental documents.
(m) Timely and unified Federal reviews. In many instances, a
proposal or decision is undertaken in the context which entails
activities or decisions undertaken by other Federal agencies (for
example, where multiple Federal authorizations or analyses are required
with respect to a proposal sponsor's overall purpose and goal). These
activities and decisions are ``related actions,'' in that they are each
the responsibility of a particular agency but they are all related in a
matter relevant to NEPA by their relationship with one overarching
proposal. In such instances, Congress has provided that the multiple
agencies involved shall determine which of them will be the lead agency
pursuant to the criteria identified in NEPA section 107(a)(1)(A), 42
U.S.C. 4336a(a)(1)(A). When serving as the lead agency, a USDA
subcomponent is ultimately responsible for completing the NEPA process.
When a joint lead relationship is established pursuant to NEPA section
107(a)(1)(B), 42 U.S.C. 4336a(a)(1)(B), a USDA subcomponent and the
other joint lead agency or agencies are collectively responsible for
completing the NEPA process.
(1) Lead agency. If a USDA subcomponent is participating in
developing a proposal and there are two or more participating Federal
agencies, the lead agency shall be determined in accordance with NEPA
section 107(a)(1)(A), 42 U.S.C. 4336a(a)(1)(A). A lead agency shall
fill the role described in NEPA section 107(a)(1)(B)(2), 42 U.S.C.
4336a(a)(1)(B)(2).
(i) Any Federal, State, Tribal, or local agency or person that is
substantially affected by the lack of a designation of a lead agency
with respect to a proposal, as described in paragraph (m) of this
section, may submit a written request for such a designation to a
participating Federal agency. An agency that receives a request under
this paragraph shall transmit such request to each participating
Federal agency and to the Council on Environmental Quality, in
accordance with NEPA section 107(a)(4), 42 U.S.C. 4336a(a)(4).
(ii) When serving as the lead agency, the USDA subcomponent will
determine the scope of the analysis for the proposal in accordance with
Sec. Sec. 1b.5(b) and 1b.7(g) and document the scope of the project at
hand.
(2) Joint lead agencies. In making a determination under paragraph
(m) of this section, the participating Federal agencies may appoint
such State, Tribal, or local agencies as joint lead agencies as the
involved Federal agencies shall determine appropriate. Joint lead
agencies shall jointly fulfill the role described in NEPA section
107(a)(1)(B)(2), 42 U.S.C. 4336a(a)(1)(B)(2).
(3) Cooperating agencies. In accordance with NEPA section
107(a)(3), 42 U.S.C. 4336a(a)(3), the lead agency may, with respect to
a proposal, designate any Federal, State, Tribal, or local agency that
has jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal to serve as a cooperating
agency. A cooperating agency may, not later than a date specified in
the schedule established by the lead agency, submit comments to the
lead agency.
(n) Unified documentation. If a USDA subcomponent proposal will
require action by more than one Federal agency and the lead agency, as
described in NEPA section 107(A), 42 U.S.C. 4336a(A), has determined
that it requires preparation of an environmental document, the lead and
cooperating agencies should evaluate the proposed action (and any
action alternatives) in a single environmental document. If a USDA
subcomponent is not the lead agency and the lead agency's NEPA
implementing procedures specify:
(1) Format requirements for documenting categorical exclusion
considerations, environmental assessments, or environmental impact
statements, the USDA subcomponent should follow the formatting
requirements for the lead agency.
(2) Format and signature requirements for findings of no
significant impact or records of decision (and for categorical
exclusion NEPA documentation if required), the USDA subcomponent should
follow the format and signature requirements for the lead agency's
finding or decision document. If more than one responsible official
needs to sign a document, multiple signature blocks should be added to
the one document created by the lead agency. When multiple signature
blocks are included, the document shall specify what each signing
responsible official is approving given the nature of the actions
proposed and the responsible official's statutory authority.
[[Page 29670]]
(o) Disagreement concerning proposed major Federal actions. In the
event there are interagency disagreements concerning designation of a
lead or joint agency or disagreements over proposed major Federal
actions that might cause significant environmental effects, these
matters shall be referred to the USDA Senior Agency Official for
determination on whether the disagreement needs elevated to the Council
on Environmental Quality. The USDA Senior Agency Official may delegate
this authority to the applicable mission-area Undersecretary or other
USDA official for a subcomponent with NEPA responsibilities, per Sec.
1b.2(b)(2)(ix)).
(p) Programmatic actions. Environmental impact statements and
environmental assessments may be prepared for programmatic Federal
actions. When USDA subcomponents prepare such statements, they should
be relevant to the program decision and timed to coincide with
meaningful points in subcomponent planning and decision-making. When
preparing statements on programmatic actions (including proposed
actions by more than one agency), USDA subcomponents may find it useful
to evaluate the proposed actions in one of the following ways:
(1) Geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area;
(2) Generically, including actions that have relevant similarities,
such as common timing, impacts, alternatives, methods of
implementation, media, or subject matter; or
(3) By stage of technological development including Federal or
federally assisted research, development or demonstration programs for
new technologies that, if applied, could significantly affect the
quality of the human environment. Statements on such programs should be
available before the program has reached a stage of investment or
commitment to implementation likely to determine subsequent development
or restrict later alternatives.
(q) Relying on programmatic documents. Consistent with NEPA section
108, 42 U.S.C. 4336b, and paragraph (e)(8) of this section, after
completing a programmatic environmental assessment or environmental
impact statement, USDA subcomponents may rely on that document for 5
years if there are not substantial new circumstances or information
about the significance of adverse impacts that bear on the analysis.
After 5 years, as long as the subcomponent reevaluates the analysis
(see paragraph (r) of this section regarding reevaluation of
environmental documents) in the programmatic environmental document and
any underlying assumption to ensure reliance on the analysis remains
valid and briefly documents its reevaluation and explains why the
analysis remains valid considering any new and substantial information
or circumstances, the subcomponent may continue to rely on the
document. Determinations of whether the analysis in the programmatic
document and reliance on any underlying assumptions remains valid may
be made on a case-by-case or programmatic basis and record keeping of
the justifications for these determinations is advisable.
(r) Reevaluation of environmental documents. USDA subcomponents
shall reevaluate, and if necessary, correct, revise, or supplement
(hereinafter update) environmental documents, if a major Federal action
or portion thereof remains to occur, and:
(1) The subcomponent makes changes to the proposed action, or
selected alternative, that have the potential to change the anticipated
degree of effect; or
(2) There are new circumstances or information with relevance to
the proposal and these have bearing on the proposed action (or selected
alternative) or potential to change the anticipated degree of effect.
(s) Proposals for rules or regulations. Where the proposal is the
promulgation of a rule or regulation, procedures and documentation
pursuant to other statutory or Executive order requirements may satisfy
one or more requirements of this part. When a procedure or document
satisfies one or more requirements of this part, a USDA subcomponent
may substitute it for the corresponding requirements in this part and
need not carry out duplicative procedures or documentation.
Subcomponents will identify which corresponding requirements in this
part are satisfied and consult with CEQ to confirm such determinations.
For informal rulemaking conducted pursuant to the Administrative
Procedure Act, 5 U.S.C. 553, the environmental document will normally
accompany the proposed rule.
(t) Proposals for legislation. When developing legislation, USDA
subcomponents shall integrate the NEPA process for proposals for
legislation significantly affecting the quality of the human
environment with the legislative process of the Congress. Technical
drafting assistance does not by itself constitute a legislative
proposal. Only the Federal agency that has primary responsibility for
the subject matter involved will prepare a legislative environmental
impact statement.
(1) A legislative environmental impact statement is the detailed
statement required by law to be included in a Federal agency's
recommendation or report on a legislative proposal to Congress. A
legislative environmental impact statement shall be considered part of
the formal transmittal of a legislative proposal to Congress; however,
it may be transmitted to Congress up to 30 days later in order to allow
time for completion of an accurate statement that can serve as the
basis for public and Congressional debate. The statement must be
available in time for Congressional hearings and deliberations.
(2) Preparation of a legislative environmental impact statement
shall conform to the requirements of the regulations in this
subchapter, except there need not be a scoping process.
(u) Unique identification numbers. For environmental assessments
and environmental impacts statements, USDA subcomponents will provide a
unique identification number for tracking purposes, which the
subcomponent will reference on other documents associated with the
proposal and in any database or tracking system for such documents. A
subcomponent may provide a unique identification number on
documentation for a finding of applicability and no extraordinary
circumstances where useful to do so. The unique identification number
may be a number generated by a USDA subcomponent system used to track
environmental reviews or an identification numbering process specified
by the USDA Senior Agency Official or the Council on Environmental
Quality.
(v) Emergencies--Immediate actions. If emergency circumstances
exist that make it necessary to take action to mitigate harm to life,
property, or important natural, cultural, or historic resources, the
responsible official may take such actions without preparing an
environmental analysis or environmental document. When taking such
actions, the responsible official shall take into account the probable
environmental consequences of the emergency action and mitigate
foreseeable adverse environmental effects to the extent practical.
(w) Emergencies--Urgent but not immediate actions. If emergency
circumstances exist that make it necessary to take urgently needed
actions before the NEPA process can be
[[Page 29671]]
completed, the responsible official shall proceed as follows:
(1) When urgent actions are not likely to have a reasonably
foreseeable significant environmental impacts, but an emergency exists
that makes it necessary to take urgently needed actions before
preparing documentation associated with a categorical exclusion,
environmental assessment, or finding of no significant impact, USDA
subcomponents may authorize alternative arrangements for environmental
compliance so long as the alternative arrangements are limited to
actions necessary to address the emergency circumstance. Alternative
arrangements will, to the extent practicable, attempt to achieve the
substantive requirements of this part for the level of NEPA being
completed. USDA subcomponents should proceed as follows:
(i) Animal and Plant Health Inspection Services. The responsible
official shall consult with the APHIS official who is delegated the
authority to oversee NEPA compliance for the environmental unit. The
APHIS official who is delegated the authority may authorize emergency
alternative arrangements for completing the required NEPA compliance
documentation.
(ii) Farm Service Agency. The responsible official shall consult
the National Environmental Compliance Manager (or designee) who, with
direction from the FSA Administrator (or designee), will identify
alternative arrangements for compliance with this part with the
appropriate subcomponents.
(iii) Rural Development. (Rural Business-Cooperative Service, Rural
Housing Service, and Rural Utilities Service.) The responsible official
shall consult the National Director for Environmental and Historic
Preservation (or designee) who, in coordination with the Administrator
(or designee) and appropriate subcomponents, will identify alternative
arrangements for compliance with this part.
(iv) U.S. Forest Service. The responsible official shall consult
with the national headquarters office about alternative arrangements.
Consultation with national headquarters shall be coordinated through
the applicable regional (or equivalent) office. The Chief or Associate
Chief of the Forest Service may grant emergency alternative
arrangements under NEPA for categorical exclusions, environmental
assessments, and associated findings.
(v) All other USDA subcomponents. The responsible official shall
consult with the national program manager for environmental review,
NEPA compliance, or other equivalent program to determine the
appropriate mission area official who can authorize alternative
arrangements for categorical exclusions, environmental assessments, and
findings of no significant impact. When the national program manager is
unsure how to proceed, they should consult the USDA Senior Agency
Official (or their designee).
(2) When urgent actions are likely to have significant
environmental impacts, but an emergency exists that makes it necessary
to take urgently needed actions before preparing an environmental
impact statement or record of decision, the responsible official taking
the action shall request consultation with the Council on Environmental
Quality (CEQ) about alternative arrangements for compliance with NEPA
section 102(2)(C), 42 U.S.C. 4332(2)(C). Consultation with CEQ shall be
requested through the USDA Senior Agency Official (Undersecretary of
Natural Resources and Environment). The USDA Senior Agency Official
will coordinate with the applicable USDA mission area when arranging
consultation with CEQ. The USDA Senior Agency Official and CEQ will
limit such arrangements to urgent actions necessary to address the
emergency circumstance prior to preparing the environmental impact
statement.
Sec. 1b.10 Documentation prepared by applicant or third party.
(a) Environmental assessments and environmental impact statements.
In accordance with NEPA section 107(f), 42 U.S.C. 4336a(f), USDA
subcomponents may allow an applicant or other third party (e.g.,
contractor) to prepare an environmental assessment or environmental
impact statement, in whole or in part, under their supervision. Each
USDA subcomponent is responsible for the accuracy, scope, and content
of documentation prepared by an applicant or third party under the
supervision of the agency. USDA subcomponents shall ensure applicants
or third parties apply the process and documentation criteria set forth
in this part and comply with all other applicable environmental laws,
regulations, or executive orders under the subcomponent's purview. The
agency may provide additional guidance to the applicants or third
parties. Applicant and third-party preparation is subject to the
following:
(1) A USDA subcomponent may require an applicant to submit
environmental information for possible use by the subcomponent in
preparing an environmental assessment or environmental impact
statement. The subcomponent may also direct an applicant or authorize a
third party to prepare an environmental assessment or environmental
impact statement under the supervision of the agency.
(2) The subcomponent will assist the applicant by outlining the
types of information required or, for the preparation of an
environmental assessment or environmental impact statement, should
provide guidance to the applicant or third party and participate in
their preparation.
(3) The subcomponent may also provide appropriate guidance and
assist in preparation of an environmental assessment or environmental
impact statement, to the extent that the subcomponent's resources and
policy priorities admit. The subcomponent will work with the applicant
to define the purpose and need, and, when appropriate, to develop a
reasonable range of alternatives to meet that purpose and need.
(4) The subcomponent shall independently evaluate the information
or documentation submitted to determine if the accuracy, scope, and
contents are sufficient and comply with USDA documentation criteria for
an environmental assessment or environmental impact statement, and it
shall take responsibility for its contents.
(5) Applicants or third parties preparing an environmental
assessment or environmental impact statement shall submit a disclosure
statement to the lead agency that specifies any financial or other
interest in the outcome of the action. Such statement need not include
privileged or confidential trade secrets or other confidential business
information.
(6) Nothing in this section is intended to prohibit any USDA
subcomponent from requesting any person, including the applicant, to
submit information to it or to prohibit any person from submitting
information to any agency for use in preparing an environmental
assessment or environmental impact statement.
(7) The USDA subcomponent will work with the applicant to develop a
schedule for preparation of an environmental assessment or an
environmental impact statement. Major changes to the schedule or
related matters will be documented through written correspondence in
accordance with Sec. 1b.5(g) and 1b.7(l)(1).
(b) NEPA documentation for categorical exclusions. For purposes of
this part, subcomponents may also allow an applicant or other third
party
[[Page 29672]]
to complete, in whole or in part, documentation for a finding of
applicability and no extraordinary circumstance for categorical
exclusions requiring NEPA documentation. Applicant and third-party
preparation of categorical exclusion NEPA documentation is also subject
to paragraphs (a)(1) through (6) of this section, as it would pertain
to NEPA documentation for a categorical exclusion.
Sec. 1b.11 Definitions and acronyms.
(a) Definitions. As used in this part, terms have the meanings
provided in NEPA section 111, 42 U.S.C. 4336(e). The following
definitions apply to this part. USDA subcomponents shall use these
terms uniformly throughout the Department.
(1) Act or NEPA means the National Environmental Policy Act, as
amended (42 U.S.C. 4321-4347).
(2) Action alternative (or alternative) means an alternate means of
implementing actions that is different from the agency's proposed
action. Alternatives are developed in response to a substantive
issue(s) and should demonstrate a clear difference in impacts when
compared to the proposed action.
(3) Agency means a subcomponent of the Unites States Department of
Agriculture.
(4) Affecting means will or may have an effect on.
(5) Alternative. See action alternative.
(6) Authorization means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law in order to implement
a proposed action or selected alternative.
(7) Categorical exclusion (CE). See NEPA section 111(1), 42 U.S.C.
4336e(1).
(8) Control agents means biological material or chemicals that are
intended to enhance the production efficiency of an agricultural crop
or animal such as through elimination of a pest.
(9) Cooperating agency. See NEPA section 111(2), 42 U.S.C.
4336e(2).
(10) Council means the Council on Environmental Quality established
by title II of NEPA.
(11) Design criteria (or design elements, design features, or
conservation practices etc.) means constraints or requirements
proactively added to the proposed action (or action alternatives) or
through an iterative interdisciplinary process to avoid or minimize
adverse impacts. The need for design criteria is informed by the need
to comply with other laws, regulations, or executive orders;
interdisciplinary discussions that identify best management practices
or other design recommendations; feedback from the public or external
parties; or other input provided during proposed action development and
preliminary effects analysis phases. When design criteria are added in
response to an issue, that issue should no longer be analyzed in detail
in the analysis process. Design criteria include:
(i) Avoiding the adverse impact altogether by not taking a certain
action or parts of an action;
(ii) Minimizing adverse impacts by limiting the degree or magnitude
of the action and its implementation; or
(iii) Reducing or eliminating the adverse impact over time by
preservation and maintenance operations during the life of the action.
(12) Effects or impact means changes to the human environment from
the proposed action or action alternatives that are reasonably
foreseeable and have a reasonably close causal relationship to the
proposed action or alternatives.
(i) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such as
the effects on employment), social, or health effects. Effects may also
include those resulting from actions that may have both beneficial and
detrimental effects, even if on balance the USDA subcomponent believes
that the effect will be beneficial.
(ii) A ``but for'' causal relationship is insufficient to make a
USDA subcomponent responsible for a particular effect under NEPA.
Effects should generally not be considered if they are remote in time,
geographically remote, or the product of a lengthy causal chain.
Effects do not include those effects that the subcomponent has no
ability to prevent due to the limits of its regulatory authority or
that would occur regardless of the proposed action or selected
alternative, or that would need to be initiated by a third party.
(iii) A USDA subcomponent's analysis of effects shall be consistent
with this paragraph.
(13) Emergency means a situation demanding immediate or urgent
action, where delaying action to follow standard procedures would be
contrary to the public interest, as determined by a responsible
official.
(14) Environmental assessment (EA). See NEPA section 111(4), 42
U.S.C. 4336e(4). An EA is also an environmental document. (Refer to the
definition for ``environmental documents'' in subparagraph (15) of this
section.)
(15) Environmental document. See NEPA section 111(5), 42 U.S.C.
4336e(5).
(16) Environmental impact statement (EIS). See NEPA section 111(6),
42 U.S.C. 4336e(6). An EIS is also an environmental document. (Refer to
the definition for ``environmental documents'' in paragraph (a)(15) of
this section.)
(17) Extraordinary circumstance means a unique situation exists in
which actions that normally do not have significant impacts--and are
therefore categorically excluded from documentation in an environmental
assessment or environmental impact statement--create uncertainty
whether the degree of the effect is significant, or certainty that the
degree of effect is significant, for the relevant resources considered.
(18) Federal agency means all agencies of the Federal Government.
It does not mean the Congress, the Judiciary, or the President,
including the performance of staff functions for the President in his
Executive Office. For the purposes of these USDA implementing
procedures, Federal agency also includes States, units of general local
government, and Tribal governments assuming NEPA responsibilities from
a Federal agency pursuant to statute.
(19) Finding of applicability and no extraordinary circumstance
(FANEC) means a determination by a USDA subcomponent that a category
(or categories) fits the proposed actions and extraordinary
circumstances (as defined in paragraph (a)(17) of this section) do not
exist for a categorically excluded action, and therefore the issuance
of an environmental assessment or environmental impact statement is not
required.
(20) Finding of no significant impact (FONSI). See NEPA section
111(7), 42 U.S.C. 4336e(7). A FONSI is also an environmental document.
(Refer to the definition for ``environmental documents'' in paragraph
(a)(15) of this section.)
(21) Human environment means comprehensively the natural and
physical environment and the relationship of present and future
generations of Americans with that environment. (See also the
definition of ``effects'' in paragraph (a)(12) of this section.)
(22) Impact. See Effect.
(23) Issue means a logical cause-effect relationship between the
actions proposed (cause) and the reasonably foreseeable impacts
(effect) on resources
[[Page 29673]]
found in the affected environment. An issue may be addressed by
modifying the proposed action, developing an action alternative, or
supplementing, improving, or modifying the analysis to better
understand the effects.
(24) Jurisdiction by law (or statutory authority) means Federal
agency authority to approve, veto, or finance all or part of the
proposal.
(25) Lead agency. See NEPA section 111(9), 42 U.S.C. 4336e(9).
(26) Legislation means a bill or legislative proposal to Congress
developed by a Federal agency but does not include requests for
appropriations or legislation recommended by the President.
(27) Level of NEPA refers to categorical exclusion, environmental
assessment, or environmental impact statement.
(28) Major Federal action: See NEPA section 111(10), 42 U.S.C.
4336e(10).
(29) Mitigation (or mitigation measure) means constraints or
requirements that avoid, minimize, or compensate for adverse impacts
caused by a proposed action or selected alternative. Mitigations are
documented in a finding of no significant impact or record of decision
and are determined by the responsible official in reaction to the
effects described in an environmental assessment or environmental
impact statement. While NEPA requires consideration of mitigation, it
does not mandate the form or adoption of any mitigation. Mitigation
includes:
(i) Avoiding the adverse impact altogether by not taking a certain
action or parts of an action;
(ii) Minimizing adverse impacts by limiting the degree or magnitude
of the action and its implementation;
(iii) Rectifying the adverse impact by repairing, rehabilitating,
or restoring the affected environment;
(iv) Reducing or eliminating the adverse impact over time by
preservation and maintenance operations during the life of the action;
or
(v) Compensating for the adverse impact by replacing or providing
substitute resources or environments.
(30) NEPA process means all the steps necessary to complete a level
of NEPA (categorical exclusion, environmental assessment, or
environmental impact statement) and issue the associated finding or
decision document (finding of applicability and no extraordinary
circumstance when NEPA documentation is required for a categorical
exclusion, finding of no significant impact, or record of decision) to
conclude the process.
(31) Notice of availability means a public announcement in the
Federal Register that a document, generally an environmental impact
statement (EIS), is available for review.
(32) Notice of intent means a public notice in the Federal Register
that an agency will prepare an environmental impact statement (EIS), is
pausing or resuming preparation of an EIS, or is withdrawing an EIS. In
limited situations it can mean a public notice in the Federal Register
that an agency will prepare an environmental assessment.
(33) Page means 8.5 by 11 inches paper with one-inch margins using
a word processor with 12-point proportionally spaced font, single
spaced. Footnotes may be in 10-point font. Such size restrictions do
not apply to explanatory maps, diagrams, graphs, tables, and other
means of graphically displaying quantitative or geospatial information.
When an item of graphical material is larger than 8.5 by 11 inches,
each such item shall count as one page.
(34) Participating agency means a Federal, State, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(35) Potentially affected environment means the condition of the
physical, biological, social, and economic factors that may be impacted
by a proposed action (or action alternative).
(36) Programmatic environmental document. See NEPA section 111(11),
42 U.S.C. 4336e(11).
(37) Proposal (or Project). See NEPA section 111(12), 42 U.S.C.
4336e(12).
(38) Proposal record (or project record) means all relevant
documentation and records, including all environmental analysis
documents and comment submissions, that contain information the
responsible official relies on to make iterative decisions throughout
the NEPA process or to determine if and how the action will be
approved.
(39) Proposed action means the set of actions, to include design
criteria when applicable, that is submitted for final interdisciplinary
environmental review and effects analysis.
(40) Publish and publication mean methods found by the agency to
efficiently and effectively make environmental documents and
information available for review by interested persons, including
electronic publication.
(41) Purpose and need means the reason action is needed in a
location at this time. The purpose and need should generally be based
on the USDA subcomponent's statutory authority. When a subcomponent's
statutory duty is to review an application for authorization, the
subcomponent may base the purpose and need on the goals of the
applicant and the subcomponent's authority.
(42) Reasonable alternatives means a reasonable range of
alternatives that are technically and economically feasible, meet the
purpose and need for the proposal, and, where applicable, meet the
goals of the applicant.
(43) Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
(44) Record of decision is a determination by the responsible
official on how to proceed with respect to a proposed action and action
alternatives that have reasonably foreseeable significant impacts on
the quality of the human environment, as described in an environmental
impact statement.
(45) Related action means an action undertaken by an agency, such
as a permitting action, some other type of authorization action, an
analysis required by statute, or the like, that bears a relationship to
other actions undertaken by other agencies relevant to NEPA, whereas
the set of related actions are all related to one overarching proposal.
(46) Responsible official means the USDA subcomponent employee who
has the authority to determine: when NEPA applies, what level of NEPA
review is appropriate, the extent of environmental review; the final
NEPA finding and compliance with other applicable laws, regulations,
and executive orders; and, how to proceed for a proposed action or
action alternative(s).
(47) Scale refers to the spatial extent or magnitude of the actions
being proposed.
(48) Scope consists of the range of actions and alternatives
developed for a proposal or the issues and impacts to be considered in
an environmental analysis.
(49) Senior agency official means an official of assistant
secretary rank or higher (or equivalent) that is designated for overall
agency NEPA compliance, including resolving implementation issues.
(50) Significance means considering whether the reasonably
foreseeable impacts of the proposed action are significant and
analyzing the potentially affected environment and degree of the
effects of the action.
(i) Potentially affected environment means the condition of the
physical, biological, social, and economic factors that may be impacted
by an action.
(ii) In considering the degree of effects, USDA subcomponents
should
[[Page 29674]]
consider the following, as appropriate to the specific action and in
the context of the potentially affected environment:
(A) Both short- and long-term effects.
(B) Both beneficial and adverse effects.
(C) Effects on public health and safety.
(D) Economic effects.
(E) Effects on the quality of life of the American people.
(iii) In providing rationale for whether the degree of effect is
significant, responsible officials shall consider:
(A) How the unavoidable short- and long-term adverse impacts of
implementing the action compares to the short- and long-term adverse or
beneficial consequences of not implementing the action as it relates to
effects on public health and safety, economics, and the quality of life
of the American people; and
(B) How the irreversible or irretrievable commitment of a resource,
as part of the action, contributes to a loss of long-term productivity
for the human environment.
(51) Special expertise means statutory responsibility, agency
mission, or related program experience.
(52) Subcomponent means a mission area, agency, or staff office of
the United States Department of Agriculture (USDA).
(53) Substantive means information that meaningfully informs the
consideration of reasonably foreseeable impacts on the human
environment and the resulting significance determination or decisions
on how to proceed (i.e., alternatives to be considered or analyzed or
the alternative selected for implementation).
(54) USDA Senior Agency Official means the Under Secretary of
Natural Resources and Environment.
(b) Acronyms. The following acronyms may appear throughout this
part or may be used when applying this part during the applicable NEPA
process:
(1) APHIS--Animal and Plant Health Inspection Service
(2) CE--Categorical Exclusion
(3) CEQ--Council on Environmental Quality
(4) CFR--Code of Federal Regulations
(5) EA--Environmental Assessment
(6) EIS--Environmental Impact Statement
(7) FANEC--Finding of Applicability and No Extraordinary Circumstance
(8) FONSI--Finding of No Significant Impact
(9) FSA--Farm Service Agency
(10) NEPA--National Environmental Policy Act
(11) NRCS--Natural Resources Conservation Service
(12) RD--Rural Development
(13) ROD--Record of Decision
(14) OSEC--Office of the Secretary
(15) USDA--U.S. Department of Agriculture
(16) USFS--U.S. Forest Service
Sec. 1b.12 Severability.
The sections of this part are separate and severable from one
another. If any section or portion therein is stayed or determined to
be invalid, or the applicability of any section to any person or entity
is held invalid, it is USDA's intention that the validity of the
remainder of those parts will not be affected, with the remaining
sections and all applications thereof to continue in effect.
Part 372 [Removed and Reserved]
0
2. Remove and reserve part 372.
Part 520 [Removed and Reserved]
0
3. Remove and reserve part 520.
Part 650 [Removed and Reserved]
0
4. Remove and reserve part 650.
Part 799 [Removed and Reserved]
0
5. Remove and reserve part 799.
Part 1970 [Removed and Reserved]
0
6. Remove and reserve part 1970.
Part 3407 [Removed and Reserved]
0
7. Remove and reserve part 3407.
Title 36--Parks, Forests, and Public Property
Part 220 [Removed and Reserved]
0
8. Remove and reserve part 220.
Kristin Sleeper,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2025-12326 Filed 7-1-25; 2:30 pm]
BILLING CODE 3410-90-P