[Federal Register Volume 91, Number 64 (Friday, April 3, 2026)]
[Rules and Regulations]
[Pages 17062-17122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-06537]
[[Page 17061]]
Vol. 91
Friday,
No. 64
April 3, 2026
Part II
Department of Agriculture
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7 CFR Part 1b
National Environmental Policy Act; Final Rule
Federal Register / Vol. 91, No. 64 / Friday, April 3, 2026 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1b
[USDA-2025-0008]
RIN 0503-AA86
National Environmental Policy Act
AGENCY: Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: The U.S. Department of Agriculture (USDA) is adopting the
interim final rule (IFR) published on July 3, 2025, with minor changes,
as final. The IFR revised departmental regulations implementing the
National Environmental Policy Act (NEPA) and removed various USDA
agency regulations for implementing NEPA. The IFR was in response to
the Council on Environmental Quality's (CEQ) rescission of its NEPA
implementing regulations (which USDA's NEPA regulations were designed
to supplement), statutory changes to NEPA, executive orders, and case
law. In the IFR, USDA provided a 30-day comment period for the public
to review and make comments. This final rule addresses public comments
and adopts as final the IFR, with certain substantive changes as
explained herein.
DATES: This final rule is effective April 3, 2026.
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: The following acronyms are used frequently:
APA--Administrative Procedure Act
CE--Categorical Exclusion
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
EA--Environmental Assessment
EIS--Environmental Impact Statement
E.O.--Executive Order
FANEC--Finding of Applicability and No Extraordinary Circumstance
FONSI--Finding of No Significant Impact
FRA--Fiscal Responsibility Act of 2023
IFR--Interim Final Rule
NEPA--National Environmental Policy Act
ROD--Record of Decision
U.S.C.--United States Code
USDA--U.S. Department of Agriculture
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 (IFR) 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,
IFR support the rationale underlying this final rule. CEQ published a
final rule on January 8, 2026, affirming their IFR.
The Department of Agriculture (USDA) is issuing this final rule to
affirm its IFR that revised, moved and republished, or removed 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 (FRA), as well as add
new portions to the USDA NEPA implementing regulations. USDA issued the
IFR for three independent reasons, and those reasons remain valid.
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 provided
a valid foundation for USDA NEPA regulations.
Second, Congress recently amended NEPA in significant part, in the
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 rescinded, and with USDA's NEPA implementing
regulations then unmodified more than two years after this significant
legislative overhaul, it was exigent that USDA move quickly to conform
its regulations 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 regulations, availing itself of the latest information and
guidance from the Court for its future NEPA application.
For these reasons USDA published an IFR 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 regulations for, NEPA (90 FR 29632 (July 3, 2025)). In the
IFR preamble, USDA addressed how NEPA is a vital part of Federal agency
planning and decision-making, and explained that 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. USDA is affirming the final rule for these same reasons.
In publishing the IFR, USDA found that notice and comment was not
required because the rule was interpretive or a rule of agency
procedure or practice under 5 U.S.C 553(b)(A) and that, to the extent
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 satisfied the ``good cause''
exceptions in 5 U.S.C. 553(b)(B) and (d). The Administrative Procedure
Act (APA) authorizes agencies to issue regulations without notice and
public comment when an agency finds, for good cause, that notice
[[Page 17063]]
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). USDA's prior rules were
promulgated as a ``supplement[ ]'' to the CEQ's NEPA regulations, and
USDA also ``adopt[ed]'' the CEQ's regulations by incorporation.
Following the rescission of CEQ's regulations, USDA's current rules
were left to supplement a NEPA framework that no longer exists.
That being so, rescinding the old regulations immediately without
replacing them would have created a vacuum that would inflict immense
uncertainty on agencies and regulated parties and potentially grind all
projects under USDA's purview to a halt. This could have had
significant economic effects on USDA's customers due to delays in
approvals or investing in projects that could be subject to legal
challenges from not having clear uniform NEPA standards, which could
have also been delayed. Therefore, pairing the rescission with a new
structure immediately was absolutely critical. Because of this need for
speed and certainty, notice-and-comment was, 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
found that ``good cause'' existed under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
The IFR was accordingly effective immediately. USDA voluntarily took
comments on the IFR. USDA requested and encouraged public comments on
the IFR with the rationale that comments may inform USDA's decision
making during this time of substantial regulatory change.
Several commenters stated that the IFR is subject to the APA, which
they allege requires public notice and comment when issuing, amending,
or rescinding a rule through informal rulemaking processes unless one
of two exceptions applies. These commenters disagreed with USDA's
determination that the IFR is procedural or interpretive in nature, and
that USDA had good cause that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest. These
commenters deemed the voluntary 30-day comment period insufficient and
requested that the comment period for the IFR be extended given the
amount of content to review for not only the USDA IFR, but for those
IFRs related to NEPA implementing regulations and procedures published
by other departments/agencies at the same time. Other commenters agreed
with USDA's good cause rationale regarding the comment period and
encouraged USDA to publish a final rule as soon as possible.
As described in the IFR preamble, USDA maintains that notice and
comment was not required because the rulemaking fell within various
exceptions to the notice-and-comment requirement. See 5 U.S.C. 553(b).
The APA did not require USDA to publish a notice of proposed rulemaking
and consider public comments before the effective date of the rule
because three separate exceptions to the APA's general requirement
apply here: (1) the USDA departmental and agency-specific NEPA
regulations were procedural only and did not dictate or preclude any
specific actions that could be taken; rather, the legacy USDA
departmental and agency-specific NEPA regulations prescribed processes
for USDA and agencies to follow when complying with NEPA; (2) the
legacy USDA departmental and agency-specific NEPA regulations merely
provided an interpretation of a statute rather than making
discretionary policy choices establishing enforceable rights or
obligations for regulated parties; and (3) good cause exists to forgo
notice-and-comment procedures and put the rule into immediate effect
because the legacy USDA departmental and agency-specific NEPA
regulations were expressly promulgated to supplement CEQ's NEPA
regulations.
Following the rescission of CEQ's NEPA regulations, USDA and its
agencies were left with vestigial NEPA regulations that
``supplemented'' a CEQ regulatory regime that no longer existed, which
was not tenable and could have caused significant economic harm to
USDA's customers. 5 U.S.C. 553(b)(A)-(B). Portions of this rulemaking
also include general statements of policy. 5 U.S.C. 553(b)(A).
Regardless, USDA did provide notice and an opportunity to comment on
the IFR for a 30-day period. USDA determined that 30 days was adequate
because the scope of the IFR was limited to revising or rescinding
previously promulgated USDA departmental and agency-specific NEPA
regulations. Moreover, USDA monitored and posted the comments as they
were received. The public comment period concluded on August 4, 2025.
Furthermore, USDA's IFR contained all the elements of a notice of
proposed rulemaking as required by the APA. 5 U.S.C. 553(b); see also
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
591 U.S. 657 (2020). USDA explained its position with sufficient detail
to put the public on notice that it was revising the departmental NEPA
regulations and rescinding the seven agency-specific regulations and
provided its rationale along with an opportunity to comment. The public
understood the action USDA was taking and took advantage of the
opportunity to comment.
USDA issued two corrections during the comment period. The first
was to change the erroneous citation to 7 CFR 2407 to the correct
citation of 7 CFR 3407 and correct numbering of items listed in Sec.
1b.4 by redesignating the second paragraph (c)(30)(xiv) as (c)(30)(xix)
(90 FR 33871 (July 18, 2025)). The second was to clarify the comment
deadline ending date as August 4, 2025, rather than July 30, 2025 (90
FR 34165 (July 21, 2025)).
USDA received approximately 6,075 written submissions in response
to the IFR published on July 3, 2025. The overwhelming majority of the
comments (approximately 5,020) were identical campaign form letters
sent in response to organized initiatives. USDA received approximately
1,055 unique public comments, though many of these were also very
similar in form with only minor content added to make them unique. The
volume and substantive content of the comments received indicates that
the public had an adequate opportunity to comment. Thus, while USDA
maintains for the reasons noted above that its IFR is subject to the
exceptions set forth in 5 U.S.C. 553(b), this final rule represents the
culmination of a process functionally equivalent to a traditional
notice-and-comment rulemaking regardless of the initial procedural
basis for the IFR.
Since publishing the IFR, USDA has identified opportunities to
clarify content included in this final rule to make implementation of
the revised regulations more efficient, effective, and consistent with
other departments or agencies where applicable.
USDA is issuing this final rule to primarily respond to public
comments on the IFR, as well as explain clarifications provided in
response to feedback provided by reviewers and implementers of the
revised regulations. This final rule explains that USDA is reaffirming
its decision to rescind seven agency-specific NEPA regulations and
revise the departmental NEPA regulations, subject to the additional
revisions made by this final rule. This final rule therefore supersedes
the IFR.
USDA considered and is responding to substantive public comments in
this final rule. Summaries of and responses to these comments are
provided in the pertinent sections of this final rule preamble. Both
general support and
[[Page 17064]]
opposition to the IFR were expressed by unique comments received. None
of the comments received altered USDA's conclusion that there is a need
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 regulations for, NEPA. Comments did, however,
inform opportunities to change some content between the interim and
final rule as described in the sections pertinent to the comment topic.
Several commenters on the IFR expressed support for the revised
regulations and USDA's approach to fulfilling NEPA's statutory
requirements while allowing for efficient, timely, and effective NEPA
reviews and program implementation. Many of these commenters described
their experience trying to move important infrastructure, energy,
timber, and other projects through the NEPA process over the last
couple of decades. They expressed frustration with the overly
burdensome processes and analysis requirements that were created in
response to evolving case law and the frequent revisions to the now-
rescinded CEQ NEPA regulations, all of which have created confusion and
unnecessary delays. For these reasons, they expressed support for a
course-correction on NEPA compliance by aligning the USDA regulations
with the intent of the Act in a way that meaningfully evaluates
environmental effects to inform the decision-making process while still
expanding the various services and resources that USDA programs provide
across the nation.
Other numerous commenters on the IFR expressed lack of support for
the revised regulations and USDA's approach to fulfilling NEPA's
statutory requirements. These commenters see the revised regulations as
failing to facilitate informed agency decisions that require a full
evaluation of environmental impacts and not promoting a transparent
process for informing and engaging the public. Many of these commenters
described their positive and results-oriented experience engaging with
federal agencies to inform the decision-making process and ensure
sufficient environmental effects analysis was completed. They expressed
frustration with the rescission of the CEQ NEPA regulations and the
confusion and inconsistency that will be created by each federal
department and/or agency issuing their own version of NEPA implementing
regulations and/or procedures. For these reasons, they encouraged a
version of USDA regulations that more readily mirror the processes and
procedures that were described in the now-rescinded CEQ NEPA
regulations.
USDA acknowledges both these supportive and non-supportive
comments.
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 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 CEQ's 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 46 FR 47747, 48 FR 11403, 60 FR 66479, 76 FR
4801.
Prior to the IFR, USDA promulgated the most recent iteration of its
NEPA regulations in 1995 (60 FR 66479, 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 (1995) (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 (1986));
(2) Animal and Plant Health 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 (2018));
(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 (2016));
(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 1500-1508, as adopted by USDA in 7
CFR part 1b.'' (7 CFR 3407.1 (1991));
(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 (1979));
(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
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memoranda.'' (7 CFR 1970.1 (2016)); 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 (2008)).
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 CEQ's interim and 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 subcomponent with NEPA responsibilities across the
Department to supplement the Department NEPA regulations. Therefore,
USDA is correcting course and right-sizing its NEPA regulations
consistent with applicable law.
B. USDA Agency-Specific NEPA Regulation Summaries
1. Statement of Purpose
USDA's revised NEPA implementing regulations, as adopted via this
final rule, are a more faithful implementation of the statute as
amended in 2023 than its previous version of regulations. These
regulations implement major structural features of the 2023 amendments
to NEPA, such as deadlines and page limits for environmental
assessments (EAs) and environmental impact statements (EISs), as
directed at NEPA Sec. 107 (e) and (g), 42 U.S.C. 4336a(e) and (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 (CEs), as codified at NEPA Sec. 109 (42 U.S.C. 4336c) and
Sec. 111(1), 42 U.S.C. 4336e(1). They provide procedures governing
project-sponsor-prepared EAs and EISs, as directed at NEPA Sec.
107(f), 42 U.S.C. 4336a(f). They incorporate Congress's revision to the
requirements for what an agency must address in its EISs, 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 EIS, 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, the revised regulations respond to the President's
directive in E.O. 14154, Unleashing American Energy, 90 FR 8,353, and
E.O. 14192, Unleashing Prosperity Through Deregulation, 90 FR 9065
(Feb. 6, 2025), to ensure that regulatory requirements are grounded in
applicable law and to alleviate any unnecessary regulatory burdens. The
revised regulations also 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 regulations, 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 and
effective.
Several commenters on the IFR disagree with USDA's approach in the
revised regulations and allege it is not consistent with E.O. 14154,
nor is it justified by the executive order which some state is contrary
to the statutory direction contained in NEPA. Several other commenters
support USDA's approach and expressed their appreciation for USDA's
compliance with the E.O. 14154 and attempt to more closely align the
departmental NEPA regulations with the statutory intent of NEPA as
originally intended and amended.
E.O. 14154 directs all agencies to prioritize efficiency and
certainty and avoid and minimize delays and ambiguity in the permitting
process. USDA's revised departmental regulations guide compliance with
NEPA that will better advance the priorities articulated in E.O. 14154.
Consolidating NEPA procedures under one department-wide regulation
provides consistency, making USDA's NEPA process more transparent,
efficient, and certain for both employees and sponsors, applicants, or
other third parties who may work on efforts that span more than one
USDA subcomponent.
The rescission of the CEQ NEPA regulations, along with the U.S.
Supreme Court decision in Seven County Infrastructure Coalition v.
Eagle County, Colorado, 145 S. Ct. 1497 (2025), provided additional
reason for USDA to take a hard look at the NEPA regulatory structure
across the Department. With the broader NEPA regulatory environment
upended with the rescission of the CEQ regulations, USDA saw this as an
opportunity to make necessary course corrections to the department's
NEPA regulatory structure and move away from the overcomplicated and
burdensome NEPA regulatory framework that evolved over the decades due
to promulgation of agency-specific NEPA regulations that continued to
layer process requirements on top of those already required by CEQ's
NEPA regulations. While previous USDA NEPA regulations (to include
agency-specific regulations) necessarily incorporated and adopted the
CEQ regulations, CEQ's rescission of their NEPA regulations means
departments and agencies are no longer entirely beholden to
interpreting and applying NEPA as laid out in any version of 40 CFR
parts 1500-1508.
USDA acknowledges that CEQ's regulations previously provided a
framework for NEPA compliance and informed agency practices. However,
as CEQ explained in its final rule affirming the removal of its
regulations, CEQ lacks
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independent statutory authority to maintain NEPA implementing
regulations that bind agencies in the absence of an executive order
delegating rulemaking authority to CEQ. 91 FR at 622-23; see also
Executive Order 14154, Unleashing American Energy, 90 FR 8,353.
Accordingly, departments and agencies may now exercise discretion to
adopt procedures consistent with NEPA and executive policies. Indeed,
as explained above, because USDA's prior NEPA implementing procedures
were expressly designed as a supplement to CEQ's rescinded regulations,
CEQ's recission necessitated that USDA adopt new procedures designed to
independently implement NEPA.
To this end, USDA is not carrying forward process requirements,
which may have been codified in now rescinded regulations, where these
do not prioritize efficiency and certainty and do not avoid and
minimize delays and ambiguity in the permitting process. Additionally,
USDA took into consideration that USDA subcomponents and responsible
officials have multiple obligations to consider, such as analyzing the
most important resource impacts within statutorily mandated page limits
and deadlines, being responsive to varying levels of public interest,
managing fluctuations in budget and workforce capacity, and accounting
for other situations that require process flexibility. Therefore, in
revising the departmental NEPA regulations, USDA consulted with CEQ
under NEPA section 102(2)(B), 42 U.S.C. 4332(2)(B) and placed emphasis
on: (1) more closely aligning the procedures and processes outlined in
the revised 7 CFR 1b regulations with statutory requirements; and (2)
promoting responsible official discretion to determine whether to
conduct certain processes based on circumstances unique to the USDA
subcomponent and the proposal or project at hand.
Furthermore, USDA is currently coordinating with CEQ on the
Permitting Technology Action Plan that responds to the Presidential
Memorandum of April 15, 2025 on Updating Permitting Technology for the
21st Century. This permitting technology update is departmental in
scope. Logistically and fiscally, it is more efficient and effective to
have the entire Department operating under one set of NEPA regulations
as part of information technology modernization, improved customer
service delivery, and establishment of more predictable and consistent
permitting and environmental review processes--rather than trying to
accommodate and design around seven or more ways of conducting NEPA
within the same Department, as would be the case with the seven agency-
specific NEPA regulations that had been promulgated within USDA.
Some commenters noted that USDA's IFR was not consistent with
regulations or procedures published in other department and agency
IFRs. USDA recognizes that its approach to implementing NEPA may differ
from other department and agency approaches to implementing NEPA.
Through this final rulemaking, USDA is revising and affirming NEPA
implementing procedures that fit its programs and authorities while
maintaining government-wide consistency to the extent possible. As
previously discussed, following the removal of CEQ's NEPA regulations,
USDA has flexibility to determine department and agency-specific NEPA
procedures to modernize, simplify, and accelerate NEPA reviews and
support responsible development.
Furthermore, USDA notes that NEPA requires departments/agencies to
consult with CEQ when developing NEPA procedures. See 42 U.S.C.
4332(2)(B). NEPA does not require departments and agencies to
coordinate with one another to ensure identicality between their
respective NEPA procedures, let alone between the means by which each
department/agency issues those procedures. Department and agency
statutory authorities and subject-matter expertise and capacity differ
greatly, and variance on these matters is to be expected. Indeed,
department and agency NEPA regulations and procedures were not
homogenous or identical during the era in which CEQ maintained
overarching implementing regulations, as demonstrated by seven non-
identical, agency-specific NEPA regulations that had been promulgated
within USDA, and there is no requirement or reasonable expectation that
they should now be consistent with other departments and agencies when
the CEQ regulations have been vacated and rescinded.
Several commenters on the IFR allege that the revised regulations
require NEPA compliance and an EIS, or EA at a minimum, needs to be
completed.
The establishment of NEPA implementing regulations does not require
a NEPA analysis. See Heartwood v. U.S. Forest Serv., 230 F.3d 947, 954-
55 (7th Cir. 2000) (finding that neither NEPA or the CEQ regulations
required the Forest Service to conduct an EA or an EIS prior to the
promulgation of its procedures creating a CE).
Several commenters on the IFR allege the changes made to the
departmental NEPA regulations, as well as rescission of some agency
NEPA regulations, requires programmatic consultation with U.S. Fish and
Wildlife Service and National Marine Fisheries Service to comply with
the Endangered Species Act (ESA).
Neither the revised USDA NEPA implementing regulations themselves
nor the rescission of agency-specific NEPA regulations would result in
adverse impacts on endangered or threatened species or designated
critical habitat. NEPA and USDA's implementing regulations provide
procedures to ensure that agencies account for the environmental
impacts of their actions. The commenter's alleged harm to species is
speculative. Procedural regulations do not create proximate cause of
any potential harm or take, which would result from future agency
actions rather than USDA's procedural structure. Such future actions
would be subject to the ESA's consultation requirements. Therefore,
Section 7 of the ESA does not apply to this rulemaking.
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,'' (E.O. 14154,
Section 5(c)) 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 regulations, 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
primarily retains and moves the placement of the following information
currently contained in 7 CFR 1b and the individual agency NEPA
regulations below: CEs, which includes a list of USDA agencies and
offices excluded from completing an EA or EIS; and emergency action
provisions. Some additional sections from agency-specific
[[Page 17067]]
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 are 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 regulations 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.
Some commenters on the IFR supported USDA's decision to issue
revised regulations alone rather than issuing regulations and
procedures/technical guidance together or procedures/technical guidance
alone. Commenters view this regulations-only approach as establishing
more transparency, stability, and durability of USDA's intended
approach and commitment to implementing NEPA over the long-term,
whereas procedures/technical guidance can be updated at any time with
little to no public notice.
USDA is adopting the regulations-only approach in this final rule.
It finds that a department-wide regulation offers consistency,
stability, transparency, and clear expectations for USDA subcomponents
and their stakeholders.
The following provides a summary of what is included or 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.
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. It codifies the Department's
determination that this rule is an interpretative rule. This section
specifies the mission areas, agencies, and staff offices (hereinafter
USDA subcomponents or subcomponent) the part applies to.
In the final rule, 7 CFR 1b.1(c) is revised to remove ``the U.S.
Department of Agriculture'' and replace it with the acronym USDA. This
aligns with the use of USDA throughout the regulations.
No changes have been made to 7 CFR 1b.1(a), (b), and (d) relative
to the version released with the IFR in July 2025.
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.
7 CFR 1b.2(a) outlines USDA's intent to comply with NEPA. In the
final rule, the phrase ``as amended by the Fiscal Responsibility Act of
2023'' is revised to ``as amended''. NEPA was amended again by the One
Big Beautiful Bill Act of 2025 one day after the IFR published.
Additional legislation could be proposed and passed that would amend
NEPA again; therefore, USDA finds it appropriate to keep the language
regarding amendments to NEPA general instead of citing specific Acts to
circumvent the need for administrative updates to the regulations in
the future.
7 CFR 1b.2(b) clarifies how USDA will manage NEPA compliance. The
final rule changes the USDA senior agency official from the Under
Secretary of Natural Resources and Environment to the Deputy Secretary
of USDA, as referenced in 7 CFR 1b.2(a) and (b) (to include applicable
paragraphs). As all agency or mission area NEPA regulations have been
rescinded and USDA is operating under one department-wide regulation,
it was determined the senior agency official should be a level higher
than a mission area Under Secretary as the senior agency official holds
responsibility for ensuring overall Department compliance with NEPA.
(All references to the ``senior agency official'' throughout the
regulations were revised to reflect this change and any references to
the Under Secretary of Natural Resources and Environment were removed
throughout the regulations.) This section provides clarification on the
issuance of agency-specific NEPA guidance for processes and practices
that address agency-specific laws and program efficiency. 7 CFR
1b.2(b)(2) is revised to refer to ``any mission area'', rather than
``another mission area''. This change was necessitated because of the
change in the senior agency official (now the Deputy Secretary, not a
mission area Under Secretary).
Some commenters on the IFR disagreed with the language in 7 CFR
1b.2(b)(2)(vi) that allows subcomponents to establish procedures for
bonding provisions, alleging the language is ambiguous and questioning
USDA's statutory authority for this provision. Commenters expressed
concern that this provision could be misinterpreted as allowing bonding
requirements on the public to participate in the NEPA process as it is
not clear what parties this provision applies to. This provision is
removed and the list in 7 CFR 1b.2(b)(2) renumbered to reflect this
change.
7 CFR 1b.2(c) allows USDA subcomponents to establish subcomponent-
specific NEPA guidance so long as the guidance avoids creating
unnecessary process. No changes have been made to this section relative
to the version released with the IFR in July 2025.
7 CFR 1b.2(d) adds requirements to submit to Congress on an annual
basis a report that identifies any EA and EIS 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
[[Page 17068]]
failure to meet deadlines. This section specifies USDA roles and
responsibilities for completing this report. No changes have been made
to this section relative to the version released with the IFR in July
2025.
7 CFR 1b.2(e) 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, in line with the definition of
major Federal action in NEPA, as amended by the FRA. 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.
Several commenters on the IFR disagreed with the definition of
``major Federal action'' and proposed changes to the definition, while
several other commenters supported the definition as it is defined in
NEPA and encouraged USDA to accurately apply it to agency programs and
actions, especially as it pertains to loans and loan guarantees. Some
commenters disagreed with inclusion of the clause that states the
``terms `major' and `Federal action' each have independent force'' and
alleged this inappropriately changes the definition of major Federal
action as provided in NEPA. Some commenters proposed that USDA include
a list in 7 CFR 1b that identifies actions that are not considered
major Federal actions.
Some commenters on the IFR also disagreed with the consideration of
``whether the proposal is an action for which another statute's
requirements serve the function of the Federal agency's compliance with
the Act'' and suggested this was not appropriate to include as
considerations for when NEPA applies and therefore should be removed.
The term ``major Federal action'' is statutorily defined in NEPA,
as amended by the Fiscal Responsibility Act of 2023. 42 U.S.C.
4336e(10). USDA does not have the authority to change the definition.
The clarification that the terms ``major'' and ``Federal action'' have
independent force is to prompt consideration that an action may be
Federal but not major, or major but not Federal. This does not change
the definition of major Federal action but rather ensures it is
accurately considered and applied. The definition of, and exclusions
from, the NEPA term of art ``major Federal action'', read holistically,
support the view that the words ``major'' and ``Federal'' within that
term of art do have independent force--e.g., ``non-Federal actions''
with ``no or minimal'' federal funding or involvement (i.e., actions
that are not ``Federal'' in common-sense terms, and/or that are not
``major'' when viewed from the perspective of ``how much'' of the
action is truly Federal), are not ``major Federal actions''. Therefore,
the clarification that the terms ``major'' and ``Federal action'' have
independent force is in keeping with the text and structure of NEPA
generally and the definition of ``major Federal action'' specifically.
USDA considered whether the regulations should specify those
actions that are not considered major Federal actions; however, it was
decided these determinations are best made on a case-by-case basis--
either at a program or project level--by USDA subcomponents so that the
regulations do not have to be routinely revised to amend this list. As
the regulations apply to multiple USDA subcomponents, it would be
difficult to create a list that universally applies to all USDA
subcomponents. 7 CFR 1b.2(e) clarifies that 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. This includes determination of whether an action is a
major Federal action.
With regards to consideration of whether the proposal is an action
for which another statute's requirements serve the function of the
Federal agency's compliance with the Act, USDA finds this ``functional
equivalent'' provision is appropriate. Other laws, such as the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), may serve as a functional equivalent for NEPA. The functional
equivalent of NEPA for CERCLA (Superfund) actions is the CERCLA
Remedial Investigation (RI) and Feasibility Study (FS) process, which
includes the Record of Decision. While NEPA requires the formal
preparation of an EIS, the RI/FS process under CERCLA assesses a site's
impacts and selects a remedy, embodying the intent of NEPA.
The Department is not proposing any change in its current
application of the functional equivalent doctrine by codifying it. It
is codifying the status quo by incorporating the functional equivalence
doctrine into its regulations (7 CFR 1b.2(e)(6)). This is a
longstanding doctrine from case law. See Mandelker, Daniel NEPA Law and
Litig. 5:16 (2025). ``Where federal regulatory action is circumscribed
by extensive procedures, including public participation, for evaluating
environmental issues and is taken by an agency with recognized
expertise, formal adherence to the NEPA requirements is not required
unless Congress has specifically so directed.'' Id., quoting State of
MD. v. Train, 415 F. Supp. 116, 122 (D. Md. 1976).
In the final rule, references to ``USDA'' in 7 CFR 1b.2(e) and
applicable paragraphs are revised to ``USDA subcomponent'' to be
consistent with terminology used throughout the revised regulations.
7 CFR 1b.2(f) 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 EA or EIS, 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 EA or EIS when a Federal agency has 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 CE, 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 CE applies to a
proposed action, and therefore does not require preparation of an EA or
EIS, an agency should evaluate the action for extraordinary
circumstances that indicate a normally excluded action is likely to
have reasonably foreseeable significant adverse effects. Determinations
of whether to prepare an EA or EIS should be based on the anticipated
degree of effect, in accordance with NEPA, not on the type of action.
An EA shall be prepared when a Federal agency finds that a CE 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
[[Page 17069]]
1b.2(f)(2)(iv)(A)) and 1b.5(a)). An EIS shall be issued when a Federal
agency finds that a CE 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)(2)(iv)(B) and 1b.7(a)). This policy accurately reflects the
statutory requirements of NEPA for determining the appropriate level of
NEPA review (CE, EA, or EIS). In the final rule, the references to
``USDA'' in 1b.2(e), (e)(1), and (e)(4) were revised to read as ``a
USDA subcomponent''.
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.
Some commenters on the IFR disagreed with USDA's considerations for
significance. Some would like to see the considerations of significance
as they existed in the CEQ NEPA regulations prior to the 2020 revision
(context and intensity framing). Others did not support the inclusion
of considerations for social and economic factors as part of the
affected environment and degree of effects, alleging this will expand--
not streamline--effects analysis beyond what NEPA intended. Still other
commenters supported the addition of considerations for social and
economic effects.
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 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). Given the statutory language as it
relates to fulfilling the social and economic requirements of present
and future generations, USDA finds it appropriate to include
considerations of social (i.e., ``effects on the quality of life of the
American people'') and economic effects in the consideration of
affected environment and degree of effects.
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 EIS, 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 and 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.
As part of the final rule, 7 CFR 1b.2(f)(3)(iii)(A) is revised to
add ``and beneficial'' to the phrase ``How the unavoidable short- and
long-term adverse [and beneficial] impacts . . .''. As pointed out by
some commenters on the IFR, it is appropriate to also compare the
beneficial impacts of implementing the action to the short- and long-
term adverse or beneficial consequences of not implementing the action,
especially as 7 CFR 1b.2(f)(3)(ii)(B) and 7 CFR 1b.11(a)(12)(i) say
both beneficial and adverse effects should be considered. 7 CFR
1b.2(f)(3)(iii)(B) is revised to change ``or'' to ``and'' and add the
word ``Federal'' in the phrase ``How the irreversible [and]
irretrievable commitment of a [Federal] resource'', as this aligns with
the statutory language found in NEPA Sec. 102(2)(C)(v), 42 U.S.C.
4332(2)(C)(v).
7 CFR 1b.2(g) specifies that as part of USDA subcomponent decision-
making, NEPA should be integrated with other environmental analyses to
demonstrate compliance with other laws. No changes have been made to
this section relative to the version released with the IFR in July
2025.
7 CFR 1b.2(h) adds limitations on actions taken during the NEPA
process. In the final rule, 7 CFR 1b.2(h) is revised to correct the
citation ``Sec. 1b.2.h'' to ``paragraph (h)'' and change the reference
to ``USDA'' to ``USDA subcomponent'' or ``subcomponent'' to be
consistent with terminology used throughout the revised regulations.
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 CEs 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.
This section adds procedures for establishing and revising (7 CFR
1b.3(b)), adopting (7 CFR 1b.3(c)), removing (7 CFR 1b.3(d)), and
applying (7 CFR 1b.3(e)) CEs.
In the final rule, 7 CFR 1b.3(a) and 7 CFR 1b.3(c)(3) are revised
to change the phrase ``USDA's Natural Resources and Environment mission
area'' to ``USDA''. This change is necessary due to the senior agency
official changing from the Under Secretary of Natural Resources and
Environment to the Deputy Secretary. In the last sentence of 7 CFR
1b.3(a), the term ``USDA agency'' at the end of the sentence was
changed to ``USDA subcomponent'' to be consistent with terminology used
throughout the revised regulations.
In the final rule, 7 CFR 1b.3(b)(3) is revised to clarify that
public notice must be provided in the Federal Register regarding USDA's
establishment or revision of a CE and location of availability of any
additional written record. As previously written, it was interpreted
that the entire written record must be provided in the Federal
Register, and that was not the intent. The intent is to make the public
aware of where the written justification can be found, which does not
need to be in the Federal Register notice itself. The final rule also
revises the term ``justification'' to ``record'' in this section, as
well as in 7 CFR 1b.3(d)(1-3) and revises references to ``categories''
in Sec. 1b.3(c)(3)(iii) to now read as ``categorical exclusions''.
7 CFR 1b.3(e) adds clarification that USDA subcomponents may use
any of
[[Page 17070]]
the CEs listed at 7 CFR 1b.4, as well as use non-USDA categories that
were adopted by any other USDA subcomponent as specified at Sec.
1b.3(c)(3)(ii).
Several commenters on the IFR disagreed with the provision in the
revised regulations that allows any USDA subcomponent to use the CEs
now listed in the departmental NEPA regulations at 7 CFR 1b.4, which
were initially promulgated through USDA agency-specific NEPA
regulations that have now been rescinded. Some commenters also
disagreed with the provision that allows any USDA subcomponent to use a
CE already established by another USDA subcomponent or adopted from
another agency by another USDA subcomponent. Commenters allege
additional analysis is required to understand the effects anticipated
if the CEs are used by different USDA subcomponents. Some commenters
want all agency-promulgated CEs to be formally ``adopted'' by the
Department to allow for appropriate use by subcomponents implementing
actions in different settings.
As explained in the preamble for the IFR, the USDA NEPA regulations
have always included Department-wide CEs (now moved to 7 CFR 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
rescission 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 CE where the actions proposed by the subcomponent apply to the
actions described by a CE. The focus of a CE is on the character of the
actions being proposed and ensuring such actions do not result in an
extraordinary circumstance that creates reasonable uncertainty whether
the degree of the effect is significant or certainty that a reasonably
foreseeable significant effect will occur. The focus is not on the
identity of the agency that conducts the action. Where a CE is relevant
only to a USDA subcomponent's bespoke program, the CE is already
written in a way that its use will be limited to that subcomponent. For
example, CE USDA-26c-USFS applies to the ``Approval, modification, or
continuation of minor, short-term (1 year or less) special uses of NFS
lands''; therefore, this CE clearly only applies to the U.S. Forest
Service. Additionally, the revised regulations applied numbering that
includes the acronym of the USDA subcomponent that initially
promulgated the CE, making it clear which subcomponent the CE generally
applies to or indicating which subcomponent should be consulted to
ensure proper application should another USDA subcomponent want to
apply the CE.
There is, therefore, no reason in principle that a USDA
subcomponent cannot rely on another agency's CE or adopted CE for the
same kind of proposed action. In the case of USDA subcomponents being
able to use one another's CEs, USDA subcomponents also share the same
extraordinary circumstances review protocol and are readily able to
confer with their fellow USDA subcomponents when questions arise.
Similarly, for CEs that have already been adopted by a USDA
subcomponent, another USDA subcomponent using that CE for the first
time can readily confer with the agency that originally promulgated the
CE without going through another formal adoption process. In addition,
should a USDA subcomponent's proposed action be different from the
proposed action encompassed by the CE originally promulgated by another
agency, there would be no reason for the USDA subcomponent to rely on
that other agency's CE, and the concerns the commenter raises would not
arise.
Upon reviewing CEs adopted by USDA agencies since 2024, USDA found
that 5 categories had been adopted twice by USDA agencies (Rural
Utility Service and Forest Service) for actions that overlap mission
areas and instances where these two agencies often function as joint
leads or participating agencies on an action. Furthermore, the one
example raised by a commenter alleging a CE promulgated by the Farm
Service Agency for construction or ground disturbance actions could not
apply to the Forest Service is moot because the CE has already been
adopted by the Forest Service. These examples readily illustrate why
USDA included the provisions in the revised regulations that allow USDA
subcomponents to use any CE originally promulgated by another USDA
subcomponent (as found in 7 CFR 1b.4) or adopted by another USDA
subcomponent (as listed on a USDA website). USDA subcomponents already
consult with each other on the historical use and substantiation used
to establish a CE when they are unsure if a CE supports an action.
7 CFR 1b.3(e) also clarifies that USDA subcomponents may apply one
or more CEs to a proposed action.
Several commenters on the IFR disagreed with the clarification in
the revised regulations that more than one CE can be applied to a set
of actions, alleging that this practice could lead to significant
adverse impacts when ``stacking'' the use of more than one CE in the
same area.
In some circumstances, the combination of CEs can cover all aspects
of a proposed action and support a subcomponent's determination that
the proposed actions, when considered in their entirety, are not likely
to have a reasonably foreseeable significant adverse effect. The intent
is not to allow for improper segmentation, whereby a subcomponent would
improperly divide a single project into arbitrary segments divorced
from logical termini, e.g., by dividing a 10-acre project into 1-acre
segments. Rather, the intent is to clarify that a subcomponent may
apply multiple CEs when considering proposed actions in their entirety.
In such cases, the subcomponent must make a single, comprehensive
determination that the CEs, when applied together, are applicable to
the action as a whole and do not undermine the conclusion that the
proposed action as a whole does not warrant further review in an EA or
EIS.
A USDA subcomponent's reliance on multiple CEs is not precluded by
NEPA, as they constitute ``categories of action,'' not distinct
``actions,'' and therefore a subcomponent can reasonably determine that
an action or all constituent elements of an action fit within multiple
designated ``categories''. If applying more than one CE to a set of
actions, the cause-effect relationship must account for the impact of
all the actions. It may very well be that the actions as a whole, even
though implemented under more than one category, do not lead to an
extraordinary circumstance or significant effects. Therefore, the
actions may appropriately proceed under more than one category and
would continue to be excluded from further analysis in an EA or EIS.
In summary, no changes have been made to section 1b.3(e) relative
to the version released with the IFR in July 2025.
7 CFR 1b.3(f) 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. Consideration of extraordinary circumstances takes into
account the nature of the proposed actions and the context of the
potentially affected environment, with a list of resources or
[[Page 17071]]
circumstances the responsible official may want to screen for in the
potentially affected environment. This section also 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 EA or EIS, create
uncertainty whether the degree of the impact is significant for the
relevant resources considered (7 CFR 1b.11(a)(17)). The mere presence
of one or more of the resources or circumstances listed in 7 CFR
1b.3(f)(1) 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.
In such instances, the agency will conduct additional NEPA review under
an EA or EIS, as appropriate.
In the final rule, 7 CFR 1b.3(f)(2) is revised to add clarification
to the sentence that begins with ``If there is a cause-effect
relationship . . .''. This sentence is split into two sentences and the
first sentence now reads as: ``If there is a cause-effect relationship
(impact) between the proposed actions and the resource considered, the
responsible official should consider if there is something unique to
the actions proposed or to the condition of the affected environment or
resource(s) considered that creates uncertainty about the degree of
potential effect or would lead to a reasonably foreseeable significant
effect.'' This clarification better conveys USDA's intent for how
responsible officials should consider extraordinary circumstances.
Categories are identified for those actions that routinely have been
found to not result in reasonably foreseeable significant effects, and
thus that the agency has determined ``normally does not significantly
affect the quality of the human environment. However, when applying a
CE, responsible officials should consider if there is something unique
to the actions proposed or to the condition of the affected environment
or resource(s) considered that creates uncertainty about the degree of
potential effect or would lead to a reasonably foreseeable significant
effect.
Previously, some agencies had mandated lists of resources to
consider for extraordinary circumstances while other agencies had no
list. USDA 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.
This section 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 for the
resource considered. The Department added this clarification because
some agencies were creating duplicative and unnecessary reports in the
past.
Several commenters on the IFR expressed concern with the way
extraordinary circumstances are defined in the revised regulations.
Commenters also generally did not support the clarification that
responsible officials have sole discretion to determine resources to be
considered for extraordinary circumstances, to modify the proposed
action or take other steps to create certainty regarding the degree of
effect, or to determine there is ``reasonable certainty'' a reasonably
foreseeable significant impact will not occur. Some commenters also
requested that consideration of ``important or prime agricultural,
forest, or range lands'' be removed from resources that may be
considered, and the consideration of ``American Indians and Alaska
Native religious or cultural sites'' be added to resources that may be
considered.
USDA finds it appropriate to provide for responsible official sole
discretion when determining resources for consideration for
extraordinary circumstances, as this determination shall be based on
the nature of the actions proposed and in the context of the
potentially affected environment. Responsible official discretion and
determinations of whether an extraordinary circumstance exists is
informed by interdisciplinary review (7 CFR 1b.3(g)(2)(v)). To make
this clearer in response to the comments expressing concern about
responsible official ``sole discretion'', a sentence in 7 CFR 1b.3(f)
is revised to read: ``Resources for consideration for extraordinary
circumstances will be determined at the responsible official's sole
discretion, [added: as informed by interdisciplinary review] . . .''.
Rather than adding undue process for each and every action
undergoing a CEs review, the USDA regulations promote responsible
official discretion to determine which resources need to be considered
for extraordinary circumstances. Consideration of some resources may be
filtered out when looking at what is present in the potentially
affected environment and where or how actions will occur.
Section 1b.3(f)(1), which provides a non-exclusive list of the
resources the responsible official may screen for in the potentially
affected environment when considering extraordinary circumstances, is
revised in the final rule to change ``important or prime agricultural,
forest, or range lands'' to ``prime, unique, or important farmland as
defined by and subject to the provisions of the Farm Protection Policy
Act''. The extraordinary circumstance that was listed as ``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'' in the IFR is revised in
the final rule to have the last portion of the sentence read as ``or
property eligible for or listed on the National Register of Historic
Places''. The intent is for properties already listed on the National
Register of Historic Places to be considered for extraordinary
circumstances, but the previous wording implied it was only properties
eligible for listing that needed to be considered. The same section is
also revised in the final rule to add ``American Indians and Alaska
Native religious or cultural sites'' as a standalone consideration.
7 CFR 1b.3(g) adds the concept of a finding of applicability and no
extraordinary circumstance (FANEC), which applies to all CEs. For those
categories requiring NEPA documentation, the regulations specify 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. The regulations give agencies flexibility on how to document
these determinations so long as certain items are addressed. It also
clarifies documentation considerations for other applicable
environmental laws and regulations and timing of action.
In the final rule, 7 CFR 1b.3(g)(2)(iii) is revised to replace the
word ``certify'' with the phrase ``state how'', to now read: ``Describe
the proposed action and state how the category or categories
[[Page 17072]]
used are applicable to the actions''. The word ``certify'' was raising
questions internally as to what was required to certify the category or
categories used, when the intent is merely to state how the
category(ies) apply.
7 CFR 1b.3(h) clarifies that USDA subcomponents may rely on other
CE determinations. In the final rule, 7 CFR 1b.3(h) is revised to
clarify that reliance on CE determinations can also include those
determinations made within the USDA subcomponent, not just those
determinations of other agencies, as there was internal interpretation
that USDA subcomponents could not rely on their own previous
determinations. The title of this section was also revised to remove
the phrase ``of other agencies'', as this phrase was contributing to
much of the misinterpretation. This change also aligns with the
reliance approach outlined in 7 CFR 1b.9(e)(8). This section was also
revised to clarify how responsible officials may rely on CE
determinations. Reliance can just be on a previous determination that a
category or categories applies to the activities being proposed when
the activities are substantially the same as those described by the
USDA subcomponent or other agency, but the extraordinary circumstance
considerations are not substantially the same. Reliance can also be on
both the previous determination that a category or categories applies
to the activities being proposed when the activities are substantially
the same and the previous determination that no extraordinary
circumstances exist when the potentially affected environment and
resources considered for extraordinary circumstances are substantially
the same. The phrase ``substantially the same'' was already used in 7
CFR 1b.3(h) and was used in 7 CFR 1b.9(e)(8)(i) (as published in the
IFR); therefore, this phrase is not solely introduced as part of this
final rule but is appropriately used in place of language that was
similar in meaning but not exact in wording. As previously worded, it
was not clear internally that reliance could only be for the finding
that the category (or categories) fits the actions being proposed, or
for both that finding and the finding that no extraordinary
circumstances exist, as specified at 7 CFR 1b.3(g). In the final rule,
the last sentence in this section regarding documentation of reliance
was deleted and is now addressed at 7 CFR 1b.9(e)(8)(ii).
7 CFR 1b.3(i) outlines other documentation USDA subcomponents may
need to consider when applying CEs. No changes have been made to this
section relative to the version released with the IFR in July 2025.
7 CFR 1b.3(j) clarifies when timing of the agency action may occur
when a CE applies. No changes have been made to this section relative
to the version released with the IFR in July 2025.
7 CFR 1b.4--Categorical Exclusion of USDA Subcomponents and
Actions: This section revises the title 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.
Paragraphs (b), (c), and (d) are added to this section.
7 CFR 1b.4(a) includes the list of USDA subcomponents generally
excluded from preparing an EA or EIS, with the list of those
subcomponents previously listed not changing during this rulemaking
process; however, other general offices of the Department were added to
this list.
Some commenters on the IFR suggested that the programs and
activities of the Food Safety and Inspection Service (FSIS) should not
be excluded from the preparation of an EA or EIS. FSIS programs and
activities are currently excluded from the preparation of an EA or EIS
in 7 CFR 1b.4(a)(5) of the IFR. This CE was carried over from the prior
version of 7 CFR 1b.4.
Several commenters on the IFR assert that FSIS' actions constitute
major Federal actions with significant environmental effects and that
the CE is inconsistent with NEPA. One group of commenters, the Center
for Biological Diversity (CBD), Humane World for Animals (formerly,
Humane Society of the United States), and Humane World Action
(formerly, Humane Society Legislative Fund) previously submitted a
petition requesting promulgation of a rule rescinding the CE for FSIS
programs and activities in 7 CFR 1b.4(a)(5). In their comments on the
IFR, these organizations include some of the same arguments made in
their petition for rulemaking and reference the petition for
rulemaking. Another commenter independently submitted comments on this
rulemaking that mirror the comments submitted by CBD, Humane World for
Animals, and Humane World Action on the IFR and some of the arguments
in the petition.
After carefully considering the issues raised by the comments on
the IFR, USDA has decided to retain the CE in 7 CFR 1b.4(a)(5).
Specific arguments raised in these comment letters on the IFR are
addressed below.
The commenters argue that NEPA authorizes categorical exclusions
only for individual actions or categories of actions. Commenters claim
that the CE in 7 CFR 1b.4(a)(5) violates NEPA because it categorically
excludes FSIS as an entity and does not categorically exclude
individual actions or categories of actions of FSIS.
The commenters mischaracterize the nature of FSIS' categorical
exclusion by suggesting it applies to the agency as an entity. The CEs
in 7 CFR 1b.4(a) apply to ``programs and activities'' of the listed
subcomponent agencies, not the agencies as entities. The CEs in 7 CFR
1b.4(a) thus reflect USDA's determination that the programs and
activities carried out by FSIS (and other USDA subcomponents) do not
normally result in reasonably foreseeable significant impacts on the
natural or physical environment, which is the statutory standard for
establishment of a CE, see 42 U.S.C. 4336e(1). This analysis, while
clearer under the current version of 7 CFR 1b.4(a), was the fundamental
analysis underlying the initial promulgation of the CE. The original
language from 1983 establishing the CE for FSIS' programs and
activities was as follows: ``The USDA agencies listed below carry out
programs and activities which have been found to have no individual or
cumulative effect on the human environment. These agencies are excluded
from the requirements to prepare implementing procedures. Actions of
these agencies are categorically excluded from the preparation of an EA
or EIS unless the agency head determines that an action may have a
significant environmental effect.''
Thus, the CE is not a blanket exemption from NEPA documentation.
Rather, the establishment of a CE, and subsequent agency findings that
an action is excluded pursuant to that categorical exclusion, are forms
of NEPA compliance expressly authorized by statute, see 42 U.S.C.
4336(a)(2), (b)(2), 4336e(1). The establishment of (or, in this case,
the decision to maintain) a CE is based on a determination that FSIS'
programs and activities do not normally require preparation of an EA or
EIS.
The commenters also argue that FSIS authorizes actions that have
significant impacts on the environment. USDA disagrees. USDA has
concluded that FSIS actions involve programs and activities that
normally do not significantly affect the quality of the human
environment and therefore, to the extent that NEPA applies to the FSIS'
actions at the threshold state (which, as explained in what follows, it
does not, as clarified by recent statutory amendments), the CE is
appropriate.
[[Page 17073]]
Moreover, FSIS' actions involve programs and activities that are either
mandatory, i.e., non-discretionary, or ministerial in nature and,
therefore, do not constitute ``major Federal actions'' that trigger
NEPA review in the first instance, as illuminated by the definition of
and exclusions from the definition of that term as codified in the 2023
statutory amendments to NEPA, see 42 U.S.C. 4336e(10). In the
discussion below, we describe representative FSIS activities and
explain how they do not constitute major Federal actions.
FSIS administers inspection programs under the Federal Meat
Inspection Act (FMIA), (21 U.S.C. 601-695) the Poultry Products
Inspection Act (PPIA) (Id. Sec. Sec. 451-470), and the Egg Products
Inspection Act (EPIA) (Id. Sec. Sec. 1031-1056). These statutes
require FSIS to provide inspection services to establishments that meet
statutory requirements and to apply the mark of inspection to products
that are not adulterated or misbranded (See id. Sec. Sec. 455, 457,
603-604, 1034, 1035). FSIS has no authority to deny inspection or label
approval based on effects to natural resources such as emissions,
wastewater discharges, odors, traffic patterns, land use, or other
environmental factors regulated by agencies such as the Environmental
Protection Agency (EPA) or the Occupational Safety and Health
Administration (OSHA), or state and local authorities.
Likewise, FSIS' line speed rulemakings address a narrow,
inspection-administration question: what maximum rate, if any, is
compatible with FSIS' ability to carry out required post-mortem
inspection and with establishments' ability to maintain process control
so that adulterated products do not enter commerce. The statutes do not
give FSIS authority or discretion to make rulemaking decisions for line
speed based on potential environmental impacts.
The Secretary is authorized to withhold or suspend inspection
services, or issue ``regulatory control actions,'' where establishments
fail to comply with sanitation requirements. While FSIS has discretion
to choose among these enforcement mechanisms based on the facts of a
particular case, this discretion is limited to ensuring compliance with
food safety requirements and protecting public health. Nothing in the
FMIA, PPIA, or EPIA authorizes FSIS to alter the manner in which it
carries out its obligations to prevent adulterated products from
entering commerce in light of environmental considerations, waste
reduction, or other such policy objectives. These actions therefore do
not constitute major Federal actions and are therefore not subject to
NEPA as a threshold matter. See 42 U.S.C. 4336e(10)(B)(vii).
Additionally, FSIS' decisions regarding the number of government
inspectors assigned to an establishment are driven by statutory
inspection mandates and staffing needs and do not authorize, fund, or
control establishment operations or environmental outcomes. The
statutes do not authorize FSIS to assign or withhold inspectors to
influence establishment production volume, waste generation, or other
potential environmental effects. Therefore, FSIS' decisions regarding
the number of government inspectors assigned to an establishment do not
constitute major Federal actions. See 42 U.S.C. 4336e(10)(B)(i), (vii).
In commenters' final argument, they contend that FSIS actions,
particularly those related to slaughter line speeds, have reasonably
foreseeable downstream effects on animal production, transportation,
pollution, and waste management that must be analyzed under NEPA.
Under NEPA, the ``mandated focus . . . is `the proposed action'--
that is, the project at hand--not other future or geographically
separate projects that may be built (or expanded) as a result of or in
the wake of the immediate project under consideration''. (Seven County
Infrastructure Coalition v. Eagle County 145 S. Ct. 1497, 1515 (2025))
``[A] court may not invoke but-for causation or mere foreseeability to
order agency analysis of the effects of every project that might
somehow or someday follow from the current project. NEPA calls for the
agency to focus on the environmental effects of the project itself, not
on the potential environmental effects of future or geographically
separate projects.'' (Id. at 190 (internal citations omitted)) ``The
agency may draw what it reasonably concludes is a `manageable line'--
one that encompasses the effects of the project at hand, but not the
effects of projects separate in time or place.'' (Seven County, 145 S.
Ct. 1497, 1517) Therefore, ``[a]n agency may decline to evaluate
environmental effects from separate projects upstream or downstream
from the project at issue''. (Id. at 191)
These same principles apply here. FSIS' actions are limited to
ensuring food safety, proper labeling, and humane handling. As such,
FSIS regulates sanitation standards, wholesomeness of products,
labeling claims, and humane methods of handling and slaughter. FSIS
does not regulate animal production, transportation, pollution, or
waste management. These activities are regulated by other Federal,
state, or local authorities. As such, when determining whether an FSIS
action (i.e., regulation of slaughter line speeds) may require NEPA
analysis (as described above FSIS does not believe any of its actions
are major Federal actions), FSIS is not required to look at effects
that may be ``factually foreseeable'' but are irrelevant to the
agency's decision-making process and over which FSIS possesses no
regulatory authority. (Id. at 187) For these reasons, downstream
effects that an FSIS action may lead to or relate to, such as animal
production, transportation, pollution, and waste management activities
which are conducted and/or regulated by others, are not effects of
FSIS' action and do not trigger NEPA review by FSIS.
Though FSIS has no obligation to analyze these downstream effects,
it has addressed factual contentions about them in response to public
comments in prior line speed rulemakings. See Modernization of Swine
Slaughter Inspection, 84 FR 52300, 52317 (Oct. 1, 2019); Modernization
of Poultry Slaughter Inspection, 79 FR 49566, 49610-11 (Aug. 21, 2014).
In these rulemakings, commenters asserted that faster line speeds would
cause an increase in the total number of animals that a facility would
process, which in turn would cause increased water usage, emissions,
and consumption of electricity. As FSIS explained in those proceedings,
these assertions are misplaced. Faster line speed may allow for more
efficient processing but has no direct effect on consumer demand that
determines the total number of animals slaughtered. Accordingly, FSIS
determined these rulemakings would not have significant effects and
sustained the application of the categorical exclusion.
In summary, FSIS does not engage in major Federal actions
significantly affecting the quality of the human environment. Instead,
FSIS programs and activities either: (1) are ministerial or mandatory,
and not discretionary, and therefore do not fall within the definition
of ``major Federal action'' subject to NEPA, see 42 U.S.C. 4336e(10);
or (2), even if they did fall within this definition, normally do not
significantly affect the quality of the human environment, and are
therefore appropriate bases for establishment of a categorical
exclusion, see id. Sec. 4336e(1).
[[Page 17074]]
Therefore, it remains appropriate for USDA to retain the CE for FSIS'
programs and actions in 7 CFR 1b.4(a)(5).
7 CFR 1b.4(b) clarifies how CEs are organized and numbered in the
revised regulations. No changes have been made to this section relative
to the version released with the IFR in July 2025.
The department-level CEs previously listed in 7 CFR 1b.3 have been
moved to 7 CFR 1b.4(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 CEs 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.
CEs previously codified in USDA agency-specific NEPA regulations
are now consolidated under 7 CFR 1b.4(c) and (d) in this section. Any
changes to the CE 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 in the revised regulations by those that
do (7 CFR 1b.4(d)) or do not (7 CFR 1b.4(c)) require NEPA
documentation. New numbering was assigned to each CE to make it easier
to reference categories across the Department as any USDA subcomponent
may utilize the CEs 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, as well as to allow Department
personnel to identify the agency that originally promulgated the CE
should another USDA subcomponent need to consult that agency on
appropriate application of the category.
7 CFR 1b.5--Environmental Assessments: This section is added to
read as indicated in 7 CFR 1b.5. This section adds procedures for
issuing EAs and reinforces the role of an EA.
7 CFR 1b.5(a) outlines the conditions for when an EA will be
completed. In the final rule, 7 CFR 1b.5(a) is revised to remove two
erroneous inclusions of the phrase ``the policy in'' when referencing
sections 1b.2(e) and 1b.2(f) in the regulations.
7 CFR 1b.5(b) adds requirements for defining the ``Scope of
Analysis'' in an EA. No changes have been made to this section relative
to the version released with the IFR in July 2025.
7 CFR 1b.5(c) gives agencies flexibility on how to format the EA so
long as certain items are addressed. It also 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).
In the final rule, 7 CFR 1b.5(c) is revised to specify the scope of
analysis must be included in the elements for an EA. This is not a new
requirement; the requirement in 1b.5(b) to address scope of analysis in
the EA was included in the IFR. However, Department personnel pointed
out that this requirement could be easily missed in the process of
developing an EA because it was not highlighted as a required element
for an EA.
In the final rule, 7 CFR 1b.5(c)(3) is revised to change the word
``consequences'' to ``impacts''. As pointed out by Department
personnel, this change is necessary to align with terminology used in
this section (environmental impacts) when clarifying the option to
combine the potentially affected environment discussion with the
environmental impacts discussion.
In the final rule, 7 CFR 1b.5(c)(6) is revised to clarify that the
certifying statement for page limits and deadlines does not require a
signature, as this was raising questions internally as to whether an EA
needs to be signed by the responsible official to make this statement
``certified''. The revised language also clarifies that approval to
publish the EA to a USDA website indicates the responsible official has
reviewed the EA and concurs with the certifying statement.
In the final rule, 7 CFR 1b.5(c)(7) is added to the list of
elements required for an EA and reads as ``Unique identification
number''. The USDA subcomponent shall include a unique identification
number on the environmental assessment, as required by Sec. 1b.9(u)''.
This is not a new requirement, as the requirement in 1b.9(u) to provide
a unique identification number on EAs and EISs for tracking purposes
was included in the IFR. However, Department personnel pointed out that
this requirement could be easily missed in the process of developing an
EA because the unique identification number was not highlighted as a
required element for an EA.
7 CFR 1b.5(d) emphasizes the statutory requirements for EA page
limits. In the final rule, this section is revised to add the citations
to NEPA for page limits for EAs to clarify these page limits are
statutorily required and not a requirement established in the USDA NEPA
regulations.
7 CFR 1b.5(e) states that subcomponents are to adhere to the
statutory deadlines and publish an EA ``in as substantially complete
form as is possible''. This section also requires responsible officials
to certify that they made a good faith effort to satisfy the page limit
and deadline requirements in the statute. It 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, 767
(2004). In establishing deadlines for the EA 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)). This section also
clarifies when it may be appropriate to publish a notice of intent to
prepare an EA and provides direction on making the EA available to the
public.
In the final rule, the second sentence in 7 CFR 1b.5(e)(1) is
revised to add ``of environmental impacts'' at the end of the sentence.
This is to clarify the stage at which the interdisciplinary review
referred to is occurring. As pointed out by Department personnel,
interdisciplinary review also occurs to inform development of the
proposed action. This change clarifies that at this stage of
interdisciplinary review the proposed action is considered final and
now interdisciplinary review is shifting
[[Page 17075]]
to analyzing impacts of that proposed action.
In the final rule, 7 CFR 1b.5(e)(3) is revised to now include
paragraphs (i), (ii) and (iii). In paragraph (ii), clarification is
provided that publishing a notice of intent for an EA will be at the
sole discretion of the responsible official and clarifies what the
notice of intent will include if one is published, as there was
internal confusion as to whether the notice of intent for an EA needed
to be the same as that for an EIS (as outlined in 7 CFR 1b.7(b)). The
added language in paragraph (iii) also clarifies that, notwithstanding
other statutory or regulatory requirements, the decision to solicit
public comment in the notice of intent for an EA shall be at the sole
discretion of the responsible official, as there is no statutory
requirement in NEPA to solicit public comment in a notice of intent
published for an EA, though there is such a statutory requirement for a
notice of intent published for an EIS. This does not change the
Department's stance in the IFR because the IFR did not require EAs to
provide an opportunity for public comment, as this is not statutorily
required by NEPA.
7 CFR 1b.5(f) provides requirements for publishing the EA to a USDA
website. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.5(g) clarifies circumstances where it may be appropriate
to extend deadlines for an EA. In the final rule, this section is
revised to remove the erroneous first ``as'' in the phrase ``such as
time as'', now reading as ``such time as''.
7 CFR 1b.5(h) adds a requirement for the responsible official to
certify that the EA was completed within the deadline. No changes have
been made to this section relative to the version released with the IFR
in July 2025.
7 CFR 1b.6--Finding of No Significant Impact: This section is added
to read as indicated in 7 CFR 1b.6.
This section adds procedures for issuing findings of no significant
impact and reinforces the role of a finding of no significant impact
(FONSI). It gives agencies flexibility on how to format the FONSI so
long as certain items are addressed. It also provides direction on
making the FONSI available to the public, providing notifications, and
timing of the action.
7 CFR 1b.6(a) specifies the general requirements for when a FONSI
will be prepared. No changes have been made to this section relative to
the version released with the IFR in July 2025.
7 CFR 1b.6(b) outlines the elements that must be addressed in the
FONSI. In the final rule, 7 CFR 1b.6(b)(3) is revised to remove an
erroneous sentence at the end of the paragraph. The sentence had
previously been revised to reflect the correct statement found in the
sentence prior to the last sentence in this paragraph, but the
incorrect sentence at the end of the paragraph was not deleted. The
following correct sentence remains: ``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.'' The following erroneous
sentence has been deleted: ``If the responsible official finds no
significant effects based on mitigation, the mitigated finding of no
significant 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.''
7 CFR 1b.6(c) clarifies other considerations for documentation. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.6(d) includes requirements for publishing the FONSI. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.6(e) includes requirements for the responsible official to
provide notifications of the availability of the FONSI. No changes have
been made to this section relative to the version released with the IFR
in July 2025.
7 CFR 1b.6(f) provides clarification on the timing of the action.
No changes have been made to this section relative to the version
released with the IFR in July 2025.
7 CFR 1b.7--Environmental impact statements: This section is added
to read as indicated in 7 CFR 1b.7.
This section adds procedures for issuing EISs and reinforces the
role of an EIS.
7 CFR 1b.7(a) outlines the conditions for when an EIS will be
completed. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.7(b) outlines the requirements for publishing the notice
of intent. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.7(c) specifies the scoping process that may be applied. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.7(d) 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); (Sec. 107(c), 42 U.S.C.
4336a(c)).
7 CFR 1b.7(d) also 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
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, as previously required by the now
rescinded CEQ regulations, 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.
7 CFR 1b.7(d) also 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.
In the final rule, 7 CFR 1b.7(d)(2)(iv) is revised to remove the
phrase ``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''. A
slightly revised version of this phrase is added at the end of 7 CFR
1b.7(d)(2) that reads as: ``May request the comments of the following
in a manner designed to inform those persons or organizations who may
be interested in or affected by the proposed action or action
alternatives:''. This change was made to clarify that solicitation of
comments should occur in a manner designed to inform all of the
entities listed, as some Department personnel were interpreting that
only to apply to the public when the phrase was included at the end of
paragraph 1b.7(d)(2)(iv) of this section.
7 CFR 1b.7(e) provides requirements to provide for electronic
submission of comments and publishing all substantive comments
electronically, or summarizing substantive comments and including this
summary as an appendix in the EIS. No changes have been made to this
section relative to the version released with the IFR in July 2025.
7 CFR 1b.7(f) specifies that subcomponents shall consider comments
and should address
[[Page 17076]]
comments raising substantive issues or recommendations. This section
also focuses the subcomponent on addressing comments by capturing the
action the responsible official took in response to the issue raised or
recommendation made, and recommends that documentation of how comments
were addressed should be included as an appendix in the EIS.
Section 1b.7(f) also requires electronic publication of substantive
comments and provides an alternative course of action (providing a
summary of comments received) if USDA subcomponents do not have the
capability or capacity to electronically publish comments.
Section 1b.7(f) also 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,
capricious, an abuse of discretion, or otherwise not in accordance with
law; 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 statutorily required (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 been 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, section 1b.7(f) 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 demonstrate how the responsible official
responded to the substantive issue raised and/or recommendation made to
improve the decision on how to proceed (e.g., issues to be analyzed in
detail, alternatives to be considered or analyzed, or the alternative
selected for implementation).
Some commenters disagreed with the emphasis to focus on
``substantive'' comments and the definition of substantive as provided
in the revised regulations. In keeping with one of the key principles
of NEPA to generate better decisions, not better documents, USDA is
inclined to have responsible officials focus on those issues that are
substantive as these issues contain information that meaningfully
informs the decision-making process, which includes consideration of
reasonably foreseeable impacts on the human environment, the resulting
significance determination, decisions on how to proceed (i.e.,
alternatives to be considered or analyzed or the alternative selected
for implementation), and compliance with applicable laws and
regulations. (Also see discussion on edits made to the definition of
``substantive'' under section 1b.11 in the preamble.)
Numerous commenters on the IFR did not support the reduction in
opportunities for public comment for the various levels of NEPA review
(CE, EA, and EIS), as may have been outlined in some USDA agency-
specific NEPA regulations that are now rescinded. Commenters with
differing opinions on USDA's overall approach to amending the
regulations tended to agree that the lack of opportunity for public
comment, particularly for EISs, could have unintended adverse
consequences, particularly when it comes to informing and improving
agency decisions and waiving exhaustion of administrative remedies.
Several commenters on the IFR stated that the regulations should
require a comment period for EAs and require scoping for CEs (which may
provide an opportunity to comment), as may have been required by some
USDA agency-specific NEPA regulations prior to rescission. Several
other commenters supported EAs not having a comment period as they are
generally completed for projects that are not likely to have reasonably
foreseeable significant impacts but for which a CE does not apply to
the actions proposed.
Numerous commenters on the IFR stated that the regulations should
require publication of a draft EIS (DEIS) and require a comment period
on the DEIS, with many alleging this is a requirement of NEPA itself.
These commenters did not support what they see as the loss of
transparency and democracy that the DEIS comment period brought to
agency decision-making. Some commenters supported the reduction of
process associated with publishing a DEIS and soliciting, considering,
and responding to additional public comments, contending that the
public comment process has become a mechanism for some organizations to
spam agencies with form letters and create work that is not value added
to the decision-making process but rather serves to further delay
implementation of necessary agency actions.
Responsible officials have multiple obligations to consider, such
as analyzing the most important resource impacts within statutorily
mandated page limits and deadlines, being responsive to varying levels
of public interest, managing fluctuations in budget and workforce
capacity, and accounting for other situations that require process
flexibility. Rather than adding undue process for each and every action
undergoing NEPA review, the USDA regulations align with the statutory
intent and purpose of NEPA and promote responsible official discretion
to determine when and how to involve the public and solicit public
comment, unless otherwise statutorily required.
Comment on CEs and EAs is not statutorily required by NEPA. USDA
declines to add or keep comment opportunities for CEs and EAs when not
statutorily required. USDA acknowledges that this is a shift in
practice for the public regarding certain public scoping or comment
requirements included in the prior regulations for certain USDA
subcomponents. For example, the Forest Service's now rescinded NEPA
implementing regulations required scoping for all Forest Service
proposed actions, including actions that qualified for CEs (formerly 36
CFR 220.4(e)(1)). As discussed in more detail below, in the section
U.S. Forest Service NEPA Compliance Regulations (previously at 36 CFR
220), although there was no requirement in the text of those
regulations for written comments on CEs or EAs during scoping under the
Forest Service's prior regulations, agency practice generally provided
an opportunity for written comment.
[[Page 17077]]
USDA declines to continue to require scoping across-the-board
within the USDA NEPA regulations because scoping is not required by
statute for any level of NEPA review. Rather than adding undue process
for each and every action undergoing NEPA review, the USDA regulations
align with the statutory intent and purpose of NEPA and promote
responsible official discretion to determine when and how to conduct
scoping. With regards to the Forest Service, the agency has separate
statutory requirements to provide comment opportunities for certain
EAs. These comment opportunities are addressed in 36 CFR parts 218 and
219 and these regulations were not affected by the rescission of 36 CFR
part 220 or other aspects of this rulemaking.
Publication of a draft EIS and solicitation of public comments on a
draft EIS are not statutorily required by NEPA. CEQ's prior regulations
generally required, in relevant part, that agencies provide members of
the public an opportunity to comment on a draft EIS. 40 CFR 1503.1
(1978) (rescinded). However, Congress comprehensively amended NEPA in
the FRA to provide more prescriptive instructions to agencies on
completing timely and unified Federal NEPA reviews. 42 U.S.C. 4336a.
Specifically, Congress expressly provided for public comment for the
first time, at one (and only one) step of the process for developing an
environmental document: when an agency issues a notice of intent to
prepare an EIS, it must invite public comment on that notice regarding
``alternatives or impacts and on relevant information, studies, or
analyses with respect to the proposed agency action''. 42 U.S.C.
4336a(c). Congress retained the original obligation to make the EIS
available through the Freedom of Information Act (FOIA).
Congress elected only to require public comment at the notice of
intent stage in the NEPA process for an EIS. USDA's stance is that
comment at the notice of intent stage is unique in that it provides an
opportunity for fact-gathering from persons who may have relevant
(indeed, unique) information about environmental conditions of land
they live on or by with respect to projects that USDA subcomponents
have determined may have a reasonably foreseeable significant impact.
It makes sense that Congress required solicitation of public comment on
all notices of intent to prepare an EIS, while imposing no such
requirement with respect to an EA, because Congress imposed a shorter
deadline for agencies to develop an EA than to develop an EIS and
because an EA, by definition, is typically prepared only for proposed
actions that are not anticipated to have reasonably foreseeable
significant impacts. Accordingly, Congress intended that government and
public resources should focus on developing and facilitating public
engagement on matters considered in EISs.
As previously stated, the only statutory requirement to solicit
public comment is found at 42 U.S.C. 4336a(c), which requires that each
notice of intent to prepare an EIS shall include a request for public
comment on alternatives or impacts and on relevant information,
studies, or analysis with respect to the proposed agency action. There
is also a statutory requirement at 42 U.S.C. 4332(C) for the head of
the lead agency to consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise with respect
to any environmental impact involved. Both statutory requirements for
soliciting comments are accounted for in the revised regulations. USDA
will abide by the statutory requirement to solicit comments on EISs, as
outlined in this final rule, and declines to add comment opportunities
that are not statutorily required for EISs. As noted above, the Forest
Service continues to have separate statutory requirements to provide
public comment opportunities for certain EISs, as provided by 36 CFR
parts 218 and 219.
While USDA has considered and agrees with comments describing how
the agency decision-making process can be improved by public comments
and other forms of public participation, Congress has not elected to
make pre-decisional public involvement a requirement. Crucially,
however, the fact that USDA's NEPA procedures no longer prescribe a
particular public comment process or period over and above what NEPA
requires, apart from the USDA decision to require subcomponents to
publish a notice of intent in the Federal Register that invites comment
when intending to prepare an EIS, does not prevent responsible
officials from exercising their discretion to solicit additional public
comment when they determine that doing so would assist in reasoned
decision-making, not preclude them from meeting statutory deadlines
(for EAs/EISs), and not otherwise create unnecessary delays and
ambiguity in the environmental review and permitting process. USDA will
continue to make its environmental documents available to the public
consistent with FOIA, and this requirement is not affected by this
rulemaking.
Some commenters on the IFR disagreed with the clarification in the
revised regulations that while comments must be considered, there is no
requirement to address in writing how comments were considered,
alleging failure to address comments in writing would be a violation of
NEPA and/or the APA. Additionally, commenters that supported overall
streamlining of NEPA processes expressed concern that failure to
address in writing how comments were considered by the responsible
official could have unintended consequences under the guise of
efficiency. These commenters explained that implementation of agency
actions could become more difficult if and when these actions are
litigated, as the decision could be found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law under
the APA.
As clarified in the preamble of the IFR, there is no requirement in
NEPA to address comments in writing. 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. However, USDA prefers to maintain
responsible official discretion to determine when such documentation
would be useful, depending on the nature of the proposed action and the
comments received.
While there is no express requirement in NEPA or APA to address
comments on a NEPA analysis in writing, USDA subcomponents will
determine when such procedural requirements apply on a case-by-case
basis and address comments in writing as required or when determined
helpful at the discretion of the responsible official, with the
understanding that this discretionary additional process cannot
preclude the USDA subcomponent from meeting the statutory deadline for
completing an EA or EIS (NEPA Section 107(g); 42 U.S.C. 4336a(g)). NEPA
analyses are subject to judicial review under the APA, and this
regulation directs preparers to provide sufficient reasoning for
findings and decisions. The Department finds that subcomponents can
provide sufficient reasoning without prescribing a ``response to
comments'' or requiring comments to be addressed in writing. Agencies
have multiple obligations to consider, such as analyzing the most
important resource impacts within page limits and deadlines, and it is
up to preparers to prioritize the content and time of the analysis
while providing
[[Page 17078]]
sufficient reasoning for decisions made. The Department doesn't find
that a mandatory response to comment requirement meets that objective.
In summary, no changes have been made to section 1b.7(f) relative
to the version released with the IFR in July 2025.
7 CFR 1b.7(g) adds requirements for defining the ``Scope of
Analysis'' in an EIS. No changes have been made to this section
relative to the version released with the IFR in July 2025.
7 CFR 1b.7(h) gives subcomponents flexibility on how to format the
EIS so long as certain items are addressed. This section also
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.
In the final rule, 7 CFR 1b.7(h) is revised to specify the scope of
analysis must be included in the elements for an EIS. 7 CFR
1b.7(h)(1)(v) is added to the list of items that should be included on
the cover of the EIS. Item (v) reads as, ``The unique identification
number, as required by Sec. 1b.9(u).'' Neither of these are new
requirements, as the requirement in 1b.9(g) to address scope of
analysis in the EIS and 1b.9(u) to provide a unique identification
number on EAs and EISs for tracking purposes were included in the IFR.
However, Department personnel pointed out that these requirements could
be easily missed in the process of developing an EIS because they were
not highlighted as required elements for an EIS.
In the final rule, 7 CFR 1b.7(h)(3) is revised to change the phrase
``negative environmental impacts'' to ``consequences''. As pointed out
by Department personnel, this change is necessary to align the
consideration (in the EIS) of the consequences of taking no action in
the case of a no action alternative with the significance
considerations outlined at 7 CFR 1b.2(f)(3)(iii)(A), which includes
more than just negative environmental impacts. 7 CFR 1b.7(h)(3)(i) is
revised to add the phrase ``and recommend alternative uses of available
resources for unresolved conflicts associated with the proposed action
(NEPA section 102(2)(H))'' at the end. This addition is necessary to
align with the statutory requirement to study, develop, and describe
appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative
uses of available resources (NEPA section 102(2)(H); 42 U.S.C.
4332(H)).
In the final rule, 7 CFR 1b.7(h)(4) is revised to change the word
``consequences'' to ``impacts''. As pointed out by Department
personnel, this change is necessary to align with terminology used in
1b.7(h)(5) (environmental impacts), which is what 1b.7(h)(4) is
referring to when clarifying the option to combine the potentially
affected environment discussion with the environmental impacts
discussion.
In the final rule, 7 CFR 1b.7(h)(8) is revised to clarify that the
certifying statement for page limits and deadlines does not require a
signature, as this was raising questions internally as to whether an
EIS needs to be signed by the responsible official to make this
statement ``certified''. The revised language also clarifies that
approval to publish the EIS to a USDA website indicates the responsible
official has reviewed the EIS and concurs with the certifying
statement.
7 CFR 1b.7(i) emphasizes the statutory requirement for EIS page
limits. In the final rule, 7 CFR 1b.7(i) and (i)(1) were revised to add
the citations to NEPA for page limits for EISs to clarify these page
limits are statutorily required and not a requirement established in
the USDA NEPA regulations.
7 CFR 1b.7(j) adds a requirement for the responsible official to
certify the EIS meets the page limit. No changes have been made to this
section relative to the version released with the IFR in July 2025.
7 CFR 1b.7(k) emphasizes the statutory deadline for EISs. It states
that responsible 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. No changes have been
made to this section relative to the version released with the IFR in
July 2025.
7 CFR 1b.7(l) clarifies when seeking an extension to the deadline
is appropriate. In the final rule, this section is revised to remove
the erroneous first ``as'' in the phrase ``such as time as'', now
reading as ``such time as''.
7 CFR 1b.7(m) adds a requirement for the responsible official to
certify that the EIS was completed within the deadline. No changes have
been made to this section relative to the version released with the IFR
in July 2025.
The additions in sections 1b.7(i) through (m) 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 EIS
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.7(n) gives the responsible official discretion to publish
a draft EIS and provides requirements for publishing the completed EIS
to a USDA website. Publishing the EIS on a USDA website stops the NEPA
deadline clock (2 years to complete an EIS). No changes have been made
to this section relative to the version released with the IFR in July
2025.
7 CFR 1b.7(o) 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 publication
on a USDA website. In the final rule, the phrase ``Office of Federal
Activities'' was removed because EPA reorganized in 2025 and this
office now exists under another name. Due to the potential for future
reorganizations, USDA finds it prudent to keep the reference to EPA
general with regards to EIS filing procedures.
7 CFR 1b.8--Records of decision: This section is added to read as
indicated in 7 CFR 1b.8.
This section adds procedures for issuing records of decision and
gives subcomponents flexibility on how to format the record of decision
(ROD) so long as certain items are addressed. This section specifies
requirements to make the ROD available to the public and provide
notification to certain parties.
7 CFR 1b.8(a) specifies the general requirements for when a ROD
will be prepared. No changes have been made to this section relative to
the version released with the IFR in July 2025.
7 CFR 1b.8(b) outlines the elements that must be addressed in the
ROD. In the final rule, 7 CFR 1b.8(b)(6) is revised to include the
sentence, ``If the responsible official decides to adopt any
mitigation, state the statutory or regulatory authority for the
mitigation.'' This aligns with recommendations from some commenters on
the IFR, as indicated by the discussion on changes
[[Page 17079]]
made to the definition of ``mitigation'', found below in the preamble
for 7 CFR 1b.11--Definitions and Acronyms.
7 CFR 1b.8(c) includes requirements for publishing the ROD. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.8(d) includes requirements for the responsible official to
provide notifications of the availability of the ROD. In the final
rule, this section was revised to remove erroneous inclusion of the
word ``during'' in the phrase ``and any parties that submitted comments
during in response to publication of the notice of intent''.
7 CFR 1b.8(e) 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. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.9--Efficient and effective environmental reviews: This
section is added to read as indicated in 7 CFR 1b.9.
This section adds best practices for efficient and effective
environmental reviews.
7 CFR 1b.9(a), (b), (c), and (d) provides best practices for
managing the proposal record and 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.
In the final rule, 7 CFR 1b.9(a) is revised to clarify that the
proposal record is not determinative of the scope and content of an
administrative record prepared for litigation pursuant to the APA or
other law.
No changes have been made to 7 CFR 1b.9(b), (c), or (d) relative to
the version released with the IFR in July 2025.
7 CFR 1b.9(e) outlines best practices for reducing paperwork. USDA
has removed 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 or tiering)
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 (42 U.S.C. 4336c), the term ``adopting'' is only used in
reference to adopting another Federal agency's CEs (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.
Several commenters on the IFR disagreed with the page limits and
deadlines for EAs and EISs, as prescribed to in 7 CFR 1b.9(e) and other
sections of the revised regulations. Commenters described the page
limits and deadlines as being ``arbitrary and capricious'' and alleged
they are being used by the Department to circumvent adequate effects
analysis. Other commenters supported the establishment of page limits
and deadlines and encouraged strict adherence to these. Additionally,
some commenters proposed establishment of page limits and deadlines for
CEs that require NEPA documentation, 10 pages and 3 months
respectively, with recommendations for when the timeline would start.
The page limits and deadlines for EAs and EISs, as referred to in
the revised regulations, are statutory requirements now included in
NEPA, as amended by the FRA. The page limit and deadline discussion in
the revised regulations merely emphasizes and reflects congressional
intent for succinct and timely completion of EAs and EISs. Given the
variability in complexity of actions covered by CEs, whether the
categories are promulgated by agencies or statutorily authorized, USDA
declines to establish page limits or timelines for those categories
requiring NEPA documentation as laws considered during the
environmental review process, such as Endangered Species Act or
National Historic Preservation Act, could necessarily require page
limits or timelines longer than those proposed.
In the final rule, 7 CFR 1b.9(e)(7) is revised as the previous
wording in the phrase ``developed specifically to support that
environmental document or associated decision document'' was
interpreted to mean that information that may be developed for a
previous project and relied on for a project at hand (as described in 7
CFR 1b.9(e)(8)) could not also be incorporated by reference.
Information that is initially developed for another project could be
relied on for a project at hand and also incorporated by reference.
USDA's intent was not to preclude incorporation by reference of
information that may have initially been developed for another project
and is being relied on for the project at hand; therefore, the phrase
``developed specifically to support that environmental document or
associated decision document'' is revised to now read as: ``that
specifically supports the environmental document or associated finding
or decision document''. The term ``finding'' is added to this phrase as
well, as CEs and EAs have finding documents (finding of applicability
and no extraordinary circumstance and finding of no significant impact,
respectively), not decision documents like an EIS (record of decision).
Additionally, 7 CFR 1b.9(e)(7)(i) is revised to add the phrase
``and make the materials reasonably available for review by potentially
interested parties'' at the end of the sentence. 7 CFR 1b.9(e)(7)(ii)
is revised as the previous wording was being interpreted by Department
staff to imply that information could not be incorporated by reference
after an opportunity for comment was provided. The wording, as included
in the IFR, was: ``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.'' It is revised to read
as: ``When an opportunity for comment is provided and the documents or
information being commented on refer to material incorporated by
reference, this material must be reasonably available for inspection,
in draft or final form, by potentially interested persons within the
time allowed for comment.'' This better conveys USDA's intent that,
when USDA solicits comment on a proposal that incorporates by reference
certain documents or information, those materials must be readily
available for inspection during the comment period--in draft or final
form--as information relied on during a comment period may be
preliminary and then updated in response to comment received. (In those
instances where USDA is incorporating by reference certain documents or
information but is not soliciting comment, those materials incorporated
by reference will also be made readily available.) Material may also
continue to be incorporated by
[[Page 17080]]
reference after an opportunity for comment is provided, including in
response to comments. Nothing in this provision requires USDA
subcomponents to provide an opportunity to comment where not otherwise
required or where comment would be inconsistent with USDA's NEPA
procedures. 7 CFR 1b.9(e)(7)(iii) is revised with clarifying language
that unredacted information that is privileged, classified, or subject
to any other potential withholdings should also not be incorporated by
reference.
Several commenters on the IFR did not support the removal of the
Determination of NEPA Adequacy (DNA) as part of rescinding the Forest
Service NEPA regulations previously found at 36 CFR 220. These
commenters did not find the use of ``relying on analysis'' to be a
sufficient substitute for the DNA, as formerly outlined in the Forest
Service NEPA regulations. Commenters highlighted the efficiencies
provided by use of DNA as rationale for including this provision in the
revised departmental NEPA regulations. Still other commenters disagreed
with the concept of a DNA and relying on analysis altogether, asserting
that NEPA does not provide for use of previously completed analysis to
be applied to other actions.
The DNA only existed in the Forest Service NEPA regulations (36 CFR
part 220). The DNA was a tool to help evaluate the suitability of a
previously completed analysis document for potential application to a
new proposed action. In the 5 years the DNA was available (from the
2020 revision to 36 CFR part 220 to the rescission of this regulation
in July 2025), the agency only used this tool four times. The
Department coordinated with Forest Service staff when crafting the
language used in 7 CFR 1b.9(e)(8). The Forest Service does not see the
elimination of the DNA as a hinderance to gaining efficiencies and
conducting adequate consideration of effects given the provision
included in the departmental NEPA regulations for ``relying'' on
analysis. With the change in the regulations, the Forest Service plans
to use 7 CFR 1b.9(e)(8) as a DNA-type tool for assessing and relying on
previously completed analysis, either in whole or in part, whether the
analysis was completed within agency or by another agency or external
party. The efficiencies gained by relying on existing analyses are now
appropriately expanded to all USDA subcomponents.
In the final rule, 7 CFR 1b.9(e)(8) is revised to remove the phrase
``it makes sense to do so given'', as recommended by some commenters on
the IFR. The sentence where that phrase is found now reads as: ``USDA
subcomponents may rely on previous analysis completed by the
subcomponent or analysis completed by any other Federal agency where
the nature of the proposal, the potentially affected environment, and
the anticipated effects are substantially the same for the current
proposal being considered''. The following sentence, which was
previously included 7 CFR 1b.9(e)(8)(i), was moved to 7 CFR 1b.9(e)(8)
in the final rule with minor edits: ``The USDA subcomponent relying on
the previously completed analysis shall specify the reliance in the
applicable environmental document or finding or decision document and
provide explanation of how the nature of the proposal, the potentially
affected environment, and the anticipated effects (both quantitatively
and qualitatively) were determined to be substantially the same.'' (In
the final rule, in the phrase ``not included in an EA, EIS, FONSI, ROD
or FANEC documentation itself'', the erroneous inclusion of
``documentation'' was removed.)
The phrase ``substantially the same'' was already used in 7 CFR
1b.3(h) and was used in 7 CFR 1b.9(e)(8)(i) (as published in the IFR);
therefore, this phrase is not solely introduced as part of this final
rule but is appropriately used in place of language that was similar in
meaning but not exact in wording. The phrase ``substantially the same''
is used for these revisions as it refers to retaining the main
characteristics of intent, function, and impacts (effects) of a
proposal while allowing minor variations for specific situations (e.g.,
tailoring design criteria or mitigations to account for unique aspects
of the affected environment, or explaining why effects have slight
variation but the same outcome with regard to degree of anticipated
effect). The focus on main characteristics permits flexibility for
practical application without requiring factors or terminology to be
identical in every way.
7 CFR 1b.9(e)(8)(i) is revised in the final rule to not repeat
discussion included in the previous paragraph and now just focuses on
how EAs and EISs relied on in full should be published to a USDA
website. 7 CFR 1b.9(e)(8)(ii) is revised in the final rule to specify
how reliance on previous CE determinations will be documented for those
CEs requiring NEPA documentation, rather than referring back to Sec.
1b.3(h), which is revised as described previously in this preamble.
7 CFR 1.9(f) outlines best practices for reducing delay. In the
final rule, 7 CFR 1b.9(f)(9) is revised to remove erroneous inclusion
of the word ``during'' in the phrase ``Requiring comments received
during in response to publication of a notice of intent''.
7 CFR 1b.9(g), (h), (i), and (j) emphasizes the importance of
interdisciplinary preparation, methodology, scientific accuracy, and
disclosing information availability. No changes have been made to these
sections relative to the version released with the IFR in July 2025.
7 CFR 1b.9(k) adds public involvement discussions 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. No changes have been made to
this section relative to the version released with the IFR in July
2025.
7 CFR 1b.9(l) and (m) emphasize the need to eliminate duplication
with State, Tribal, and local procedures and promotes timely and
unified Federal reviews, to include outlining processes for identifying
lead, joint, and cooperating agencies, and provides process for
resolving disagreements concerning major Federal actions.
Several commenters on the IFR disagreed with the revised
regulations not specifying how responsible officials must engage
cooperating agencies. These commenters suggested the final rule specify
how responsible officials will ``request the participation of each
cooperating agency at the earliest practicable time'', as required by
NEPA, and ultimately how the lead agency ``may . . . 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''--with some asserting that
designation of cooperating agencies is required by NEPA. These
commenters contend that early engagement with state, local, and Tribal
governments promotes efficiency as these entities often bring local
knowledge, data, and working relationships to the NEPA process.
42 U.S.C. 4336a(a)(3) states that a ``lead agency may, with respect
to a proposed agency action, 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 lead agency may, but is not statutorily
required to, designate cooperating agencies; however, USDA
[[Page 17081]]
recognizes the value of inviting eligible agencies to participate as
cooperating agencies early in the proposal intake and development
process, especially when an eligible agency will need to rely on an EA
or EIS to authorize actions associated with the proposal for which they
have jurisdiction by law. Therefore, the final rule adds a requirement
for when a responsible official will extend an invitation to, or
approve a request from, an eligible agency to be a cooperating agency,
as described in the next paragraph.
Rather than adding unnecessary process for each and every action
undergoing NEPA review, the USDA regulations align with the statutory
intent and purpose of NEPA and generally promote responsible official
discretion to determine when and how to invite and designate
cooperating agencies. Clarification is added in the final rule at 7 CFR
1b.9(m)(1)(ii) that when a USDA subcomponent is serving as the lead
agency, it will fulfill the role of lead agency as outlined at 42
U.S.C. 4336a(a)(2), which includes statutory requirements on engaging
cooperating agencies if any have been designated. The cooperating
agency section at 7 CFR 1b.9(m)(3) was expanded in the final rule to
clarify expectations of responsible officials for considering eligible
agencies, as outlined in 42 U.S.C. 4336a(a)(3), as cooperating
agencies. A requirement is added that when an eligible agency will need
to rely on an EA or EIS to authorize actions associated with the
proposal for which they have jurisdiction by law, the responsible
official for the lead USDA subcomponent will extend an invitation to,
or approve a request from, the eligible agency.
7 CFR 1b.9(n) adds additional clarification on how USDA agencies
should proceed with unified documentation, as required by NEPA, where
another Federal agency is the lead agency. In the final rule, 7 CFR
1b.9(n) is revised to add a sentence that specifies that when an
environmental document is being developed by more than one USDA
subcomponent, all USDA subcomponents shall contribute to the completion
of one environmental document and shall not develop separate documents
for each subcomponent, unless justified by other statutory requirements
that make it more efficient to do so. This is in response to recent
internal experiences where USDA subcomponents have continued to push
for doing their own documents rather than unified documentation for
actions covered by more than one USDA subcomponent. 7 CFR 1b.9(n)(2)
was also revised to add ``or authorizing'' to the sentence that begins
as ``When multiple signature blocks are included, the document shall
specify what each signing responsible official is approving [or
authorizing] . . .''. This was in response to internal feedback that
there is a difference between ``approving'' and ``authorizing'' and the
regulations should account for this when requiring specification of
what responsible official is approving or authorizing.
7 CFR 1b.9(o) 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.
7 CFR 1b.9(p), (q), and (r), outlines recommended approaches for
preparing EAs and EISs for programmatic actions and provides direction
for relying on and reevaluating environmental documents. No changes
have been made to sections 1b.9(p) and (q) relative to the version
released with the IFR in July 2025.
A commenter raised concerns that it was not clear what triggered
the need to reevaluate an EIS and additionally what triggered the need
to issue a supplemental EIS. In the final rule, 7 CFR 1b.9(r) is
revised to clarify what triggers the need to reevaluate any
environmental document, as wording in the IFR was creating both
external and internal confusion. The phrase ``remains to occur'' was
replaced with ``incomplete and ongoing'' to be more specific to the
status of the action, which may have started but has not been
completed. Paragraphs (1), (2), and (3) are added to 7 CFR 1b.9(r)
provide necessary direction to USDA subcomponents on how to proceed
based on the outcome of the reevaluation for environmental documents
that are not an EIS that has been filed with the Environmental
Protection Agency (EPA), as well as for EISs that have been filed with
the EPA. In specifying procedures for EISs, it is also necessary to
specify procedures for those environmental documents that are not an
EIS. In addition to the public comment, since publishing the IFR,
numerous USDA staffs have inquired about the process and requirements
for making updates to environmental documents. Rather than having each
USDA subcomponent develop this guidance, USDA has determined it is
appropriate to include these procedures in the revised regulations to
ensure consistency and transparency in how environmental documents are
reevaluated, updated, necessary notifications considered and made, and
document access provided. The revised regulations still provide for a
necessary level of responsible official discretion when it comes to
documentation formatting, as this is necessary to account for unique
program circumstances across USDA mission areas.
7 CFR 1b.9(s) and (t) outline approaches for evaluating proposals
for rules, regulations, and legislation. No changes have been made to
these sections relative to the version released with the IFR in July
2025.
7 CFR 1b.9(u) specifies the need to apply unique identification
numbers to EAs and EISs. In the final rule, 7 CFR 1b.9(u) is revised to
change the word ``on'' to ``for'' in the phrase ``which the
subcomponent will reference on other documents associated with the
proposal''. This correction was necessary as it was being interpreted
by Department staff that every document included in a proposal record
for an EA or EIS would need to have the unique identification number
added to it. The intent is that the unique identification number is
used to associate other published documents with the EA or EIS, such as
the FONSI (for an EA) or ROD (for an EIS). The unique identification
number can also be used in the proposal record file name but does not
need to be added to every document included in the proposal record.
7 CFR 1b.9(v) adds direction on how to proceed for emergencies,
specifically allowing for actions to address imminent threats prior to
any NEPA analysis.
Some commenters on the IFR expressed concern with the emergency
authorities and the potential for responsible officials to mis-apply
them. Some commenters also questioned the authority of the Department
to establish emergency authorities and recommended carrying over
language from the rescinded CEQ NEPA regulations.
As explained in the preamble for the IFR, 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 to provide for
consistent department-wide language but with the intent remaining the
same, 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
[[Page 17082]]
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. This section 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 CE or EA when
reasonably foreseeable significant effects are not anticipated. It
specifies that for emergency actions where reasonably foreseeable
significant impacts are likely, the responsible official will consult
with CEQ about alternative arrangements for NEPA compliance.
The intent of NEPA is to improve agency decision-making and inform
the public of the anticipated degree of effects associated with major
Federal actions. There are instances where emergency circumstances
exist such that Federal agencies must make real-time decisions and
implement actions to address imminent threats to life, property, or
important natural, cultural, or historic resources. Examples include
wildfire suppression response activities or response to natural
disaster events impacting basic functionality of infrastructure and
utility services that are critical to public safety and initial
emergency response and recovery efforts (e.g., transmission lines,
communication networks, public transportation networks and systems).
The immediacy with which these actions need to be implemented makes it
infeasible and impracticable to complete a NEPA analysis without
incurring a high likelihood of harm to life, property, or important
natural, cultural, or historic resources. Where analysis and
documentation are feasible and practicable, even when focused or
delayed, agencies should use 7 CFR 1b.9(v)(2) or (3), as applicable.
The need to allow for implementation of actions for emergency
circumstances has been standard practice as evidenced by the rescinded
Forest Service (36 CFR part 220) (73 FR 43084-01 (July 24, 2008)) and
Rural Development (7 CFR Subtitle B part 1970) (81 FR 11000-01 (March
2, 2016)) NEPA regulations. While wording varied between the
regulations, both included a category of emergency actions that
provided for immediate implementation and did not require NEPA analysis
prior to implementation, though did require that adverse effects be
considered and mitigated where possible (36 CFR 220.4(b)(1); 7 CFR
1970.18(a)). Both regulations also included a category of emergency
actions that may need to be implemented before NEPA analysis was
completed, but for which alternative arrangements could be approved to
allow the actions to be initiated prior to documenting and disclosing
the effects of those actions (36 CFR 220.4(b)(2) and (3); 7 CFR
1970.18(b) and (c)).
In response to the concerns raised, and to align with guidance
issued by CEQ on January 21, 2026 regarding emergencies and NEPA, the
following revisions are made to 7 CFR 1b.9(v) to better clarify the
intent of emergency actions.
In the final rule, 7 CFR 1b.9(v) is revised. This section was
called ``Emergencies--Immediate actions'' in the IFR and in the final
rule is called ``Emergency actions''. Paragraph 1b.9(v) is now
paragraph 1b.9(v)(1) and is revised to clarify that NEPA's analysis and
documentation requirements should not impede timely execution of action
needed to address imminent threats to life, property, or important
natural, cultural, or historic resources. In the IFR, this section read
as: ``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.'' Paragraph 1b.9(v)(1) now reads as: ``If emergency
circumstances exist that make it necessary to take action to address
imminent threats to life, property, or important natural, cultural, or
historic resources, the responsible official may take such actions
without preparing a NEPA analysis. When taking such actions, the
responsible official shall take into account the probable environmental
consequences of the emergency action and consider taking steps to
mitigate reasonably foreseeable adverse environmental effects to the
extent practical and consistent with agency authority.'' The term
``immediate'', as it relates to describing the type of actions, has
been removed as the section is being retitled to ``emergency actions''.
The term ``imminent threat'' is added to describe why the actions need
to be implemented without preparing a NEPA analysis and to align with
CEQ guidance on emergencies. The term ``NEPA analysis'' replaces the
phrases ``environmental analysis or environmental documentation'' to
clarify the emergency action procedures are only applicable to NEPA.
The phrase ``and consistent with agency authority'' is added to the
last sentence to recognize that the responsible official's ability to
mitigate reasonably foreseeable adverse effects is also predicated on
agency authority to do so.
In the final rule, 7 CFR 1b.9(w) is removed. Paragraphs 1b.9(w)(1)
and (w)(2) in the IFR are now paragraphs 7 CFR 1b.9(v)(2) and (3),
respectively, in the final rule.
In the final rule, the first sentence of 7 CFR 1b.9(v)(2) (formerly
1b.9(w)(1)) is revised. In the IFR, this section read as: ``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.'' In the final rule, it reads as: ``When
taking actions other than those described in paragraph (1) that are not
likely to have reasonably foreseeable significant impacts, but
emergency circumstances exist that make it necessary to take actions
before preparing a categorical exclusion that requires NEPA
documentation, an environmental assessment, or a finding of no
significant impact, USDA subcomponents may authorize alternative
arrangements for NEPA compliance so long as the alternative
arrangements are limited to actions necessary to address the emergency
circumstance.'' The term ``urgent'', as it relates to describing the
type of actions, has been removed as there are now only ``emergency
actions''. The phrase ``reasonably foreseeable significant
environmental impacts'' is changed to ``reasonably foreseeable
significant impacts'' to be consistent with terminology used in statute
and elsewhere in the revised regulations. The term ``NEPA compliance''
replaces the phrase ``environmental compliance'' to clarify the
emergency action procedures are only applicable to NEPA.
In the final rule, 7 CFR 1b.9(v)(3) (formerly 1b.9(w)(2)) is
revised. In the IFR, the first sentence read as: ``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
[[Page 17083]]
environmental impact statement or record of decision, the responsible
official taking the action shall request consultation . . .''. In the
final rule, the first sentence is revised to read as: ``When taking
actions other than those described in paragraph (1) that are likely to
have reasonably foreseeable significant impacts, but emergency
circumstances exist that make it necessary to take the actions before
preparing an environmental impact statement or record of decision, the
responsible official taking the action shall request consultation . .
.''. The term ``urgent'', is as it relates to describing the type of
actions, has been removed as there are now only ``emergency actions''.
The phrase ``significant environmental impacts'' is changed to
``reasonably foreseeable significant impacts'' to be consistent with
terminology used in statute and elsewhere in the revised regulations.
In the 1b.9(v)(3) paragraph, after references to the USDA senior agency
official, ``or their designee'' is added as this clarification aligns
with 7 CFR 1b.2(b)(2)(vi) (as renumbered in the final rule, and which
did not otherwise change as part of the final rule), which allows the
senior agency official to delegate certain duties for NEPA compliance.
7 CFR 1b.10--Documents prepared by applicant or third party: This
section is added to read as indicated in 7 CFR 1b.10.
This section adds procedures for EAs and EISs 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 EA or EIS 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 CEs 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 EAs and EISs.
Applicants often complete documentation for actions that fit CEs
requiring NEPA or statutorily required environmental review
documentation.
Some commenters on the IFR disagreed with documentation prepared by
an applicant or third party being expanded to include documentation for
CEs, alleging this is not permitted by NEPA as the Act only addresses
this for EAs and EISs. However, NEPA does not speak to documentation
for CEs. 42. U.S.C. 4336a(f) requires procedures for project sponsor
preparation of EAs and EISs, but does not require procedures for
project sponsor preparation of CEs. The absence of a requirement is not
the same as a prohibition. Disallowing sponsor preparation of a lesser
form of NEPA review than an EA or EIS would seem to be inconsistent
with Congress's intent. The USDA NEPA regulations provide procedures
for CE determinations at 7 CFR 1b.3 and therefore it is also
appropriate to provide procedures for applicants or third parties who
are developing NEPA documentation for those CEs that require it.
In the final rule, this section is revised to remove erroneous uses
of the term ``agency'' and replace it with ``subcomponent'' for
consistency with other terminology used throughout the revised
regulations.
7 CFR 1b.11--Definitions and Acronyms: This section is added to
read as indicated in 7 CFR 1b.11.
This section adds cross-references to key definitions from NEPA and
carries over some definitions from the 2020 CEQ NEPA Implementation
Regulations (such as the definition for ``effects''), with
modifications made for some definitions such as: mitigation (or
mitigation measure) and significance.
In the final rule the definition of ``Agency'' (7 CFR 1b.11(a)(3))
is revised to remove ``the Unites [sic] States Department of
Agriculture'' and instead use the USDA acronym. This aligns with the
use of ``USDA'' throughout the regulations.
Several commenters on the IFR stated that consideration of direct,
indirect, and cumulative effects should explicitly be stated as a
requirement in the revised regulations and the definition of
``effects'' should be revised to include these terms.
Sections 1b.5 and 1b.7 in the revised regulations include ``Scope
of Analysis'' direction for EAs and EISs. The scope of analysis
direction stems from the U.S. Supreme Court decision in Seven County
Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct. 1497
(2025). The revised regulations clarify that when completing an EA or
EIS, a USDA subcomponent will document 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. 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 (i.e. temporal), or
separate in place (i.e. spatial), 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 EA or EIS and explain where it drew a
reasonable and manageable line relating to the consideration of such
effects from such separate actions.
Instead of formulating the evaluation of environmental effects of
USDA subcomponent actions using the artificial devices of ``direct,''
``indirect,'' and ``cumulative'' effects that do not appear in the
statute, USDA's NEPA regulations focus on the underlying principle of
what constitutes an ``effect''. In reorienting the focus of its
regulations, USDA does not change or purport to change the scope of
effects that USDA subcomponents are required by statute to consider.
Both before and after the updates to USDA's NEPA regulations, USDA
subcomponents were and are required to consider effects that are both
reasonably foreseeable and have a reasonably close causal relationship
to their proposed actions and reasonable action alternatives,
consistent with the statute, as clarified by the Supreme Court in the
Public Citizen and Seven County decisions.
Additionally, in light of Supreme Court's Seven County decision,
USDA elected to update its regulations to reflect the phrasing provided
by the Supreme Court regarding effects. That is, ``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 [or
environmental impact statement] and explain where it drew a reasonable
and manageable line relating to the consideration of such effects from
such separate actions.'' 7 CFR 1b.5(b)(3) and 7 CFR 1b.7(g)(3).
``Similarly, the USDA subcomponent will document in the
[[Page 17084]]
environmental assessment [or 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, if any) or project at hand that extend
outside the geographical territory of the proposal or might materialize
later in time.'' 7 CFR 1b.5(b)(2) and 7 CFR 1b.7(g)(2). Id. (citing
Seven County Infrastructure Coalition v. Eagle County, Colorado, 145 S.
Ct. 1497 (2025)).
This language, adapted directly from the Seven County decision,
provides USDA with direction on how to consider, as appropriate, the
environmental consequences of an USDA subcomponent's action that may
previously have been expressed in concepts such as ``indirect effects''
and ``cumulative effects''. This focus on the meaning of ``effect'' has
led USDA to restore in large part the concept of ``connected action''
to the way it was defined in the pre-2020 CEQ regulations, with
clarifying emphasis that the subject of analysis is the Federal action,
not action taken by non-Federal entities. See 40 CFR 1508.25(a)(1)
(rescinded). Even as originally defined in the pre-2020 CEQ
regulations, the term ``cumulative impact'' referred to the
``incremental impact'' of the proposed action in relation to the
context within which that action was taken. See 40 CFR 1508.7
(rescinded). That is, the focus, even of the ``cumulative impact
analysis'' should always have been on change wrought by the effects of
the proposed action, and the Seven County decision merely refines that
focus.
In summary, NEPA does not include a statutory requirement to
analyze direct, indirect, or cumulative effects, and the Supreme Court
Seven County decision further validates this interpretation. USDA's
Scope of Analysis provision sufficiently addresses the concept of
direct, indirect, and cumulative effects and provides for their
consideration in reasoned decision-making.
Some commenters assert that the revised regulations should require
that NEPA effects analysis address climate change and environmental
justice considerations.
NEPA does not contain any provisions addressing any specific type
of environmental impact. Direction from within the executive branch may
in the past have pushed agencies to place special emphasis upon certain
categories of effects (i.e., ``climate change,'' ``environmental
justice''), but that direction has now been rescinded. See 91 FR 618
(Jan. 8, 2026) (final rule rescinding CEQ's NEPA regulations);
Executive Order 14173, Ending Illegal Discrimination and Restoring
Merit-Based Opportunity (Jan. 21, 2025) (revoking Executive Order
12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations; Executive Order 14154,
Unleashing American Energy, 90 FR 8,353 (Jan. 20, 2025) (revoking
Executive Order 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All). In other words, the distinctions and
concepts identified by commenters do not exist in statute and were
conceptual creations of CEQ, some agencies, and courts to formulate
analysis and guide agency decision-making.
In the final rule, the definition of ``Effects'' (7 CFR
1b.11(a)(12)) is revised to reword the last sentence in bullet (i). The
sentence previously read as: ``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.'' It now reads as: ``Effects appropriate for analysis
under NEPA may be either beneficial or adverse, or both, with respect
to these values.'' This change better ensures a consistent definition
of effects across Federal departments and agencies. In this definition,
bullet (iii) was also removed as this bullet was included prior to
adding the Scope of Analysis direction included for EAs and EISs. It
was erroneously left in the IFR and now removed as it conflicts with
that direction.
``Mitigation'' (7 CFR 1b.11(a)(29)) is added 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. In
the final rule, the definition of ``Mitigation'' is revised to include
the following sentence, as recommended by some commenters on the IFR:
``When adopting mitigations as part of the FONSI or ROD, the statutory
or regulatory authority for any mitigation must be provided.'' This
addresses the concern that unless mitigations are tied to statute or
regulation, applicants/third parties could be subject to costly and
burdensome mitigations at the whim of the responsible official. Minor
edits were also made to the second sentence of the definition, changing
``mitigations'' to ``mitigation measures'' and adding the acronyms for
FONSI and ROD.
``Significance'' (7 CFR 1b.11(a)(50)) is defined as explained under
the changes made to section 7 CFR 1b.2.
This section also 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.
In the final rule, the definition for ``Design criteria'' is
revised to include ``resource protection measures'' and ``best
management practices'' as alternative terms that mean the same thing,
as informed by internal feedback that these are terms used by some USDA
subcomponents. The phrase ``proactively added to the proposed action''
in the first sentence is revised to now read as ``that are included as
part of the proposed action''. The phrase ``in coordination with the
applicant if applicable'' was also added to the first sentence as
recommended by some commenters on the IFR, with the first sentence now
reading as: ``Design criteria (or design elements, design features,
[resource protection measures], [best management practices], or
conservation practices etc.) means constraints or requirements
proactively added to the proposed action (or action alternatives) or
through an iterative interdisciplinary process, in coordination with
the applicant if applicable, to avoid or minimize
[[Page 17085]]
adverse impacts.'' This change was made to address the concern raised
by some commenters on the IFR that USDA subcomponents could add costly
and/or burdensome design criteria to proposals submitted by applicants/
third parties without their input or consent. The second to last
sentence in the definition paragraph is revised with wording that makes
it clear design criteria are part of the proposed action (similar
language was also added to the last sentence of the definition
paragraph) and wording is added to clarify that recommendations for
design criteria could be identified as part of interdisciplinary
preparation or through external comments. Verbs in (i) through (iii)
were revised to eliminate the present participle (removed ``ing''
endings).
Some commenters on the IFR disagreed with the revised regulations
highlighting the differences between ``design criteria'' and
``mitigation measures''. Some had particular concern with the phrase
used in the definition of design criteria that states, ``[w]hen design
criteria are added in response to an issue, that issue should no longer
be analyzed in detail in the analysis process''. Some also expressed
concern with the definition for mitigation measures and propose it
should carry forward the CEQ guidance that ``[m]itigation measures may
be relied upon to make a finding of no significant impact only if they
are imposed by statute or regulation, or submitted by an applicant or
agency as part of the original proposal''--alleging the agency cannot
enforce application of mitigations (or implementation of design
criteria) without statutory authority.
The USDA NEPA regulations purposefully differentiate between design
criteria that are intrinsic to the proposed action (i.e. proactively
added to the proposed action prior to final effects analysis occurring)
and mitigation measures that address effects (i.e. are reactive to the
effects described in the final effects analysis). If the applicant or
agency has included criteria or constraints as part of the original
proposal, these are design criteria (per USDA's definition), not
mitigation measures, though both design criteria and mitigation
measures serve to minimize or eliminate undesired adverse effects.
Section 1b.6(b)(3), which outlines the elements required for a finding
of no significant impact, already includes the suggested language that
the agency identify the statutory or regulatory authority for
mitigations. Section 1b.8(b)(6), which outlines the elements required
for a record of decision, is revised in the final rule to reflect the
language already included in section 1b.6(b)(3). USDA's application of
the terms ``design criteria'' and ``mitigation measures'', as well as
clarification that when an issue is addressed through the addition of
design criteria that issue should no longer be analyzed in detail (7
CFR 1b.11(a)(11)), is in alignment with the CEQ's 2011 guidance on
mitigation and monitoring, which was cited by some commenters (CEQ
Memo: Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact, January
14, 2011).
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 ``emergency actions'' (7 CFR 1b.9(v)). In
the final rule, the definition of ``Emergency'' is revised to now read
as: ``Emergency means circumstances exist that make it necessary to
take action where delaying action to follow standard procedures for
completing NEPA analysis would be contrary to the public interest, as
determined by a responsible official.'' This is to align with changes
made to terminology and wording used in 7 CFR 1b.9(v), for the reasons
described for that section.
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 EA or EIS--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 the degree of the impact
is significant for the resource being considered.
In the final rule, the definition of ``Federal Agency'' (7 CFR
1.11(a)(18)) is revised to remove the erroneous phrase ``these USDA
implementing procedures'' and correctly replaced with ``this part''.
The last sentence of the definition now begins with, ``For the purposes
of this part . . .''.
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 CE is dependent on determinations
that a category (or categories) applies to the proposed actions and no
extraordinary circumstance exists. In the final rule, this definition
is revised to add a sentence at the end that reads, ``For those
categories that require NEPA documentation, this finding must be
documented.'' This aligns with 7 CFR 1b.3(g).
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 CE, EA, or EIS. This also
helps clarify that using a CE is a NEPA process, as some entities in
the past have erroneously alleged that an agency's use of a CE 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.
[[Page 17086]]
``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 EAs and EISs 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.
In the final rule, the definition of ``Record of Decision'' (ROD)
(7 CFR 1b.11(a)(44)) is revised to add the word ``documented''. The
beginning of the definition now reads as ``Record of decision is a
documented determination by the responsible official . . .''. This is
to accurately reflect that the ROD is a document as it is not included
in the definition of ``environmental document'', as defined in NEPA
Sec. 111(5), 42 U.S.C. 4336e(5).
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.
In the final rule, the definition of ``Senior agency official'' (7
CFR 1b.11(a)(49)) is revised to add the following sentence at the end
of the definition: ``At USDA, the Deputy Secretary is the senior agency
official.'' This change was necessary to account for deleting the
definition of ``USDA senior agency official''. It was found duplicative
to have definitions for both of these terms when clarification could be
added to the senior agency official definition to specify what position
at USDA fills this role.
In the final rule, the definition of ``Significance'' (7 CFR
1b.11(a)(50)) is revised to remove the phrase ``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'' and replace it with ``the degree of effects of
the specific action on the potentially affected environment'', as
recommended during interagency review to avoid using the term
``significance'' in the definition and to provide greater precision
with respect to the definition of this term. The definition at (iii)(A)
is also revised to add the phrase ``and beneficial'' to the
consideration of short- and long-term impacts, with the sentence now
reading as: ``How the unavoidable short- and long-term adverse and
beneficial impacts of implementing the action . . .''. The definition
is also revised at (iii)(B) to change ``or'' to ``and'' and add the
word ``Federal'' in the phrase ``How the irreversible [and]
irretrievable commitment of a [Federal] resource''. These changes align
with changes made to 7 CFR 1b.2(f)(3), as previously described in this
preamble.
In the final rule the definition of ``Subcomponent'' (7 CFR
1b.11(a)(52)) is revised to remove ``the United States Department of
Agriculture'' but keeps the USDA acronym. This aligns with the use of
``USDA'' throughout the regulations.
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. In
the final rule, the definition of ``Substantive'' is revised to add
``or compliance with applicable laws, executive orders, and
regulations'' to the end of the definition as this is something that
must also be considered by the responsible official when reviewing
substantive information, as pointed out by some commenters on the IFR.
In the final rule, the definition of ``USDA Senior Agency
Official'' is removed at 7 CFR 1b.11(a)(54) and replaced by the
definition of ``USDA website'' to clarify how the requirement for
publishing environmental documents or otherwise making information
available to the public on a USDA website can be met as this was not
clear to Department staff implementing the IFR. The definition
clarifies the information or document required to be made available to
the public can also be published on another entity's website so long as
a USDA website directs to that other entity's website.
7 CFR 1b.11(b) adds a list of acronyms that may appear throughout 7
CFR 1b or that may be used when applying 7 CFR 1b during the applicable
NEPA process. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.12--Severability: This section is added to read as
indicated in 7 CFR 1b.12.
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. No changes have been made to this section relative to
the version released with the IFR in July 2025.
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 CEs 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 CEs 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
[[Page 17087]]
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 CEs 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(v)(2)(i). It is revised as follows:
--Eliminates language regarding EAs 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
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 CEs 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) but is incorporated into
the overall Department guidance for Emergencies, with one paragraph
1b.9(v)(2)(ii) clarifying how the FSA should coordinate alternative
arrangements for urgent actions not anticipated to have reasonably
foreseeable significant effects.
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 CEs 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'' is 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))
--7 CFR 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 FRA (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 CEs 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 CEs are now found at 7 CFR
1b.4(d)(3) through (23).
[[Page 17088]]
Minor changes were made to the CE 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 CEs 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
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 47 recent site-specific dam rehabilitation EAs, all
resulting in a finding of no significant impact. 38 of 47 EAs included
one or more actions (NRCS practices) that could qualify for a proposed
revised CE. NRCS concluded that 21 of these 38 projects could have been
categorically excluded because the proposed action was limited to the
dam construction footprint, which was previously disturbed during
construction. 17 of those 38 EAs included some actions that could fit
the revised CE. Thus, NRCS used the EA analysis to support the
conclusion that as individual actions, these actions would not normally
lead to significant impacts. The remaining 9 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 CEs, 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. A copy of the
substantiation record for these modifications can be found at https://www.nrcs.usda.gov/resources/guides-and-instructions/nrcs-environmental-evaluation-cpa-52-worksheet-tools-and-training.
Additionally, for the final rule NRCS reconsidered 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 CEs listed at
Sec. 650.6(d). Rationale was provided in the IFR as to why NRCS did
not find it necessary to include this language from an agency
perspective; however, in discussions with other USDA subcomponents that
may use the NRCS CEs and other federal agencies interested in adopting
some of the NRCS CEs, NRCS has determined it appropriate to include
revised language in 7 CFR 1b.4(d), as modified by this final rule, that
clarifies the need to consider application of a NRCS Conservation
Practice Standard or an agency-equivalent technical guideline when
using the CEs. NRCS Conservation Practice Standards are regularly
updated through a rigorous interdisciplinary national review process
and require scientific validity, technical feasibility, and alignment
with agency conservation objectives and statutory authorities.
Accordingly, although USDA subcomponents or other federal agencies may
apply NRCS CEs listed in Sec. 1b.4 (d)(3)-(24), the subcomponent's or
federal agency's responsible official must determine that either an
applicable NRCS Conservation Practice Standard(s), a comparable
subcomponent technical guideline(s), or similar agency-specific
conservation or best management practice(s), sufficiently supports its
use.
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)(1) through
(a)(7), (c)(1) through (c)(9), (d)(1) through (11), (e), (f), and (g);
1970.54(a) through (c). Previously codified Rural Development CEs are
now found at 7 CFR 1b.4(c)(17) and (18) and (31) through (40) and
(d)(24). The CE at 7 CFR 1b.4(d)(25) in the IFR was moved to 7 CFR
1b.4(c)(39) as part of the final rule as these actions do not require
NEPA documentation. 1b.4(d)(25) now shows [Reserved] so as not to
require the CEs to be renumbered.
Through this 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 and implementing the
definition of major Federal action as established in the FRA (Pub. L.
118-5), which also amended NEPA. 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.
In the IFR, Rural Development removed several CEs for actions that
the mission area had determined did not meet the definition of major
Federal action under NEPA and, therefore, did not require NEPA
analysis. However,
[[Page 17089]]
recent experiences have indicated there may still be unique
circumstances in which some actions do not meet the exclusions for a
major Federal action and would therefore be considered a major Federal
action and subject to NEPA review. Rural Development has decided, as
part of this final rule, to keep the following actions previously
codified at: 7 CFR 1970.53(a)(1) through (a)(6), (b)(3), (c)(8),
(c)(9), (d)(1), and (f). These categories are added at 7 CFR
1b.4(c)(18)(xviii) through (xx) and 7 CFR 1b.4(c)(33) through (40). The
actions are included exactly as they were promulgated in the 7 CFR part
1970 regulations, except for one that required a change (7 CFR
1970.53(a)(2)), as described below. For actions covered by these CEs,
Rural Development will make case-by-case or programmatic determinations
of which actions do not meet the statutory definition of major Federal
action, and where actions are determined to be major Federal actions,
the applicable CE can be applied.
Actions previously codified at 1970.53(b)(1) and (2), 1970.53(h),
and 1970.55 were removed in the IFR and remain removed as part of this
final rule. These actions are already covered by previously promulgated
Department-wide categories or are for actions that clearly do not meet
the definition of major Federal action.
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(v)(2)(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.
7 CFR 1970.53(a)(2)(i) is revised and moved to 7 CFR 1b.4(c)(34).
The original language in paragraph 1970.53(a)(2)(i) is removed and
labeled [Reserved] as Rural Development has determined that the actions
described are not major Federal actions. The original language also
cited two regulations that are now rescinded (40 CFR 1506.1(d) and 7
CFR 1970.12).
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 CEs (for
example, 7 CFR 1970.53(d)(1) (now 7 CFR 1b.4(c)(18)(xx) and (2) (now 7
CFR 1b.4(c)(18)(viii) 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 CE 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 EAs issued by the agency,
as well as other Federal agency CEs. 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 EA,
as previously codified at 7 CFR 1970.54(b)(2)(ii), is based on the
review and analysis of EAs 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 EA
due to extraordinary circumstances. Further, the agency has reviewed
records for over 100 EAs 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 EAs 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.
The substantiation record for these modifications can be found at
https://www.rd.usda.gov/resources/environmental-studies/environmental-guidance.
Some commenters on the IFR expressed concern regarding the
following language included in the CE now listed at 7 CFR 1b.4(c)(18)
(USDA-18c-RD): ``In accordance with section 106 of the National
Historic Preservation Act [NHPA] (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 [ESA] (16
U.S.C. 1531-1544) and its implementing regulations at 50 CFR part 402,
the agency has determined that the actions 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
[[Page 17090]]
endangered species''. As part of the final rule, this language has been
removed from the CE and Rural Development agencies will determine if
NHPA or ESA apply to proposals and, if applicable, determine compliance
based on the anticipated effects of the proposed actions.
In the final rule, 7 CFR 1b.4(c)(18) (USDA-18c-RD) was also revised
to add ``or for energy or telecommunication proposals'' to the end of
the first sentence. In the IFR, the CEs for financial assistance for
minor construction and energy or telecommunication proposals were
combined under one category in the new regulations, but the IFR
erroneously only referred to minor construction projects.
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 CEs are now found at 7 CFR 1b.4(c)(19) through (29) and
(d)(26) through (47).
Minor changes were made to the CE 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
CEs. The CEs 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
CE 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 CE 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) is revised to clarify that the land management
plan approval document required by 36 CFR part 219 satisfies the
documentation requirement for this CE. (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) is revised as follows when moved to 7 CFR
1b.9(v)(2)(iv): eliminates language regarding CEs, EAs, 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.
Based on comments received on the IFR, the Forest Service has
determined it is appropriate to remove the CE listed at USDA-27c-USFS
given these activities are statutorily exempt from NEPA in accordance
with 16 U.S.C. 497c(i)--Ski area permit rental charge. Inclusion of
this CE removal in this final rule is consistent with 7 CFR 1b.3(d) and
CEQ guidance to provide public notice of the removal in the Federal
Register. In the final rule, USDA is removing the CE USDA-27c-USFS in
response to comments stating that the existing CE is for an action that
has statutorily been identified as no longer being a major Federal
action. 16 U.S.C. 497(c)(i) states that ``[t]o reduce Federal costs in
administering the provisions of this section, the reissuance of a ski
area permit to provide activities similar in nature and amount to the
activities provided under the previous permit shall not constitute a
major Federal action for the purposes of the National Environmental
Policy Act of 1969 (42 U.S.C. 4331 et seq.).'' While the Forest Service
recognizes that the existing CE uses the term ``issuance of a new
permit,'' while 16 U.S.C. 497c(i) uses the term ``reissuance,'' the CE
clarifies the issuance of a new permit is 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''. This is, for
all intents and purposes, a reissuance of a permit for an existing ski
area, though that permit may be issued to a new owner to conduct the
same activities, issued to the same owner under a new term (similar to
reissuing a driver's license that is set to expire), or issued under a
new authority but for the same scope of activities--as outlined in the
examples. The activities outlined in the CE are clearly not intended
for a permit issued for a new ski area that does not already exist;
therefore, any permit issued for an existing ski area is considered a
reissuance. The USDA NEPA regulations at 7 CFR 1b.2(e)(2) states that
NEPA does not apply to proposals exempted from NEPA by law, which this
category of proposals is. Therefore, there is no need for the CE as it
covers the activities now identified as not being a major Federal
action for the purposes of NEPA in 16 U.S.C 497c(i) and there is no
need for the agency to engage in the NEPA process when reviewing these
ski area permit reissuances.
On January 13, 2026, after the promulgation of the IFR at 90 Fed
Reg 29632, the United States District Court for the District of Oregon
held that the CE at 7 CFR 1b.4(d)(30) (USDA-30d-
[[Page 17091]]
USFS), formerly codified at 36 CFR 220.6(e)(6), did not comply with the
APA, and set aside and remanded the CE, Oregon Wild v. USFS, No. 1:22-
1007 (D. Or.). On March 16, 2026, the court clarified, however, that
decisions that had been signed as of the date of the order could
proceed. The Department is currently evaluating whether to appeal the
district court ruling. Given the ongoing evaluation of the court's
decision, including the possibility of appeal and the ability of
certain existing signed decisions to proceed, the language for that CE
is included in this rule at 7 CFR 1b.4(d)(30). If USDA decides not to
appeal the decision, or if an appeal is unsuccessful, the rule will be
amended to reflect the legal status of the CE.
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. The Forest
Service published a proposed rule on February 6, 2026 to revise 36 CFR
218. While the 7 CFR 1b regulations do not include a ``decision
notice'' for EAs, 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 EA, 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 EAs that required issuance of a decision
notice under the 36 CFR 220 regulations (Sec. 220.7(c)), until such
time as the 36 CFR 218 regulations are revised to account for this
change.
Some commenters on the IFR disagreed with elimination, as part of
rescinding the 36 CFR 220 regulations, of what commenters characterized
as the Forest Service's requirements for public comment on EAs and
EISs, the mandated scoping requirement for all levels of NEPA review,
and the removal of the requirement for a ``schedule of proposed
actions'' (SOPA). Other commenters supported their understanding of
these changes, highlighting that what they understood to be
requirements in the Forest Service's now rescinded NEPA regulations
went above and beyond the statutory requirements of NEPA and the
regulatory requirements outlined in the now rescinded CEQ NEPA
regulations.
This final rule does not revise the Forest Service 36 CFR 218 or
219 regulations, which include public comment opportunities on some EAs
and EISs.
Upon reviewing the USDA agency-specific NEPA regulations, USDA
determined the Forest Service regulations went well beyond the
statutory requirements for public comment. Scoping for an EIS is not a
statutory requirement; however, the Forest Service NEPA regulations
made scoping a requirement for all levels of NEPA review, to include
CEs and EAs, and were the only USDA agency-specific NEPA regulations to
do so. While the agency established a practice of frequently soliciting
written comments during the scoping process, this was never required by
the text of 36 CFR 220. Rather, the practice emerged from an
understanding of how the Forest Service's regulations interacted with
CEQ's NEPA regulations. Those CEQ regulations have now been rescinded.
Nothing in the statutory text of NEPA as amended requires either
scoping or solicitation for public comment for CE determinations or for
EAs. Furthermore, the term ``scoping'' is not and should not be
conflated with statutorily required opportunities for comment on
certain EAs and EISs, as reflected in provisions of 36 CFR parts 218
and 219; such opportunities remain unaffected by this rulemaking.
Rather than adding undue process for each and every action
undergoing NEPA review, the USDA regulations align with the statutory
requirements of NEPA and promote responsible official discretion to
determine when and how to apply scoping on a project-by-project basis.
While the requirement in the Forest Service NEPA regulations to
publish a SOPA has been rescinded, this does not preclude the agency
from continuing to provide this information publicly--whether through
the SOPA or continued publication of project information to a forest/
grassland's public web page. The ability and capacity of the agency to
provide this information may vary based on funding and staffing levels;
therefore, the decision to provide this service should not be
predetermined in regulation but appropriately decided on a recurring
basis. Furthermore, USDA is currently coordinating with CEQ on the
Permitting Technology Action Plan that responds to the Presidential
Memorandum on Updating Permitting Technology for the 21st Century. This
permitting technology update is departmental in scope. This update aims
to identify the capabilities of existing agency systems that can be
replicated, using modern technology and software, to enhance the
efficiency, transparency, and effectiveness of environmental reviews
across USDA in alignment with this final rule. This effort will
inevitably lead to the decommissioning of outdated system platforms
that require costly maintenance. This is yet another reason to remove
regulatory requirements for systems that may not continue to exist in
their current form, but whose capabilities may be replicated and
expanded through current information technology modernization efforts.
C. Transition Period for USDA NEPA Regulations
Where a CE is anticipated and NEPA documentation is required by
statute, in accordance with 7 CFR 1b.4(d), or as required by the
Federal agency regulations or procedures from which a category was
adopted, if the proposal has been accepted and a final proposed action
is already being analyzed for CE applicability and extraordinary
circumstances, the USDA subcomponent has the discretion to apply 7 CFR
1b as published in this final rule or to continue applying the versions
of NEPA regulations being applied prior to publication of this final
rule.
Where a CE is anticipated and NEPA documentation is not required in
accordance with statute, 7 CFR 1b.4(c), or as required by the Federal
agency regulations or procedures from which a category was adopted, the
USDA subcomponent shall apply 7 CFR 1b as published in this final rule.
Any proposals that are accepted after the publication of this final
rule and for which a CE applies, the USDA subcomponent shall apply 7
CFR 1b as published in this final rule.
Where an EA is anticipated and publishes to a USDA website more
than 45 calendar days after publication of this final rule, the EA (and
associated FONSI) shall comply with 7 CFR 1b as published in this final
rule. If an EA publishes to a USDA website within 45 calendar days of
this final rule publishing, the USDA subcomponent has discretion to
continue applying the versions of NEPA regulations being applied or to
switch to applying 7 CFR 1b as published in this final rule.
Where an EIS is anticipated and a Notice of Intent (NOI) to prepare
an EIS has not yet published or the NOI published 90 days or less prior
to this final rule publishing, the proposal shall apply 7 CFR 1b as
published in this final rule. If the NOI for an EIS published more than
90 days prior to the publication of this final rule, the USDA
subcomponent has discretion to continue applying the versions of NEPA
regulations being applied before publication of the NOI or to switch to
applying 7 CFR 1b as published in this final rule. If the NOI stated
the version
[[Page 17092]]
of the regulations being applied and the EIS is prepared under a
different version of regulations, the EIS will clarify the regulations
being applied. USDA subcomponents should post notification of the
change to the USDA website, as specified in the NOI, where information
about the proposal can be found and may provide notification of the
change to any parties that submitted comments on the NOI.
To the extent any prior regulation is being applied because a
project passed the milestones described above for a CE, EA, or EIS, and
those regulations conflict with the statute, as amended, or the U.S.
Supreme Court decision in Seven County Infrastructure Coalition v.
Eagle County, Colorado, 145 S. Ct. 1497 (2025), the statute governs and
the Supreme Court's interpretation of that statute governs.
III. 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 final rule is a significant regulatory
action 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 final rule consistent with E.O.
13563.
B. National Environmental Policy Act
This 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
regulations 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).
C. 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 final rule.
See 5 U.S.C. 601(2), 603(a).
D. Federalism
The Department has considered this final rule under the
requirements of E.O. 13132, Federalism. The Department has determined
that the 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 final rule will not
have federalism implications, and no further assessment of federalism
implications is necessary.
E. 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 final rule does not impose
substantial direct compliance costs on Tribal governments and does not
preempt Tribal law. The Department has reviewed this final rule in
accordance with the requirements of E.O. 13175 and has determined that
this 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
final rule.
F. Energy Effects
The Department has reviewed the final rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Department has determined that the final rule
will not constitute a significant energy action as defined in E.O.
13211.
G. Civil Justice Reform
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12988, Civil Justice Reform. Upon
publication of the final rule, (1) all State and local laws and
regulations that conflict with the final rule or that impede its full
implementation will be preempted; (2) no retroactive effect will be
given to this 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 final rule complies with the
requirements of E.O. 12988.
H. 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 final
rule on State, local, and Tribal governments and the private sector.
The 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.
I. Paperwork Reduction Act
The 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 in 7 CFR Part 1b
Environmental impact statements.
0
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 to read as follows:
TITLE 7--Agriculture
PART 1b--NATIONAL ENVIRONMENT POLICY ACT
Sec.
1b.1 Purpose.
[[Page 17093]]
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. 4321-4347; 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 USDA.
(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, with the understanding that NEPA is a purely procedural
statute that imposes no substantive environmental obligations or
restrictions.
(1) The USDA Senior Agency Official is responsible for ensuring
that these USDA NEPA regulations are consistent with NEPA and will
coordinate compliance for the Department.
(2) The USDA Senior Agency Official may engage the Agricultural
Council on Environmental Quality (7 U.S.C. 5401, Pub. L. 101-624) when
developing, revising, or amending the necessary processes to be used by
the Office of the Secretary in reviewing, implementing, and planning
its NEPA activities, determinations, and policies.
(3) The USDA Senior Agency Official 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 Deputy Secretary
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 any
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) 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(v);
(vii) 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
(viii) 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.
[[Page 17094]]
(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, a USDA subcomponent
will consider only the proposed action or 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 a
USDA subcomponent 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 a USDA subcomponent 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 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 and beneficial
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 and irretrievable commitment of a Federal
resource, as part of the action, contributes to a loss of long-term
[[Page 17095]]
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), 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 a USDA subcomponent is considering an application from a
non-Federal entity and becomes aware that the applicant is about to
take an action within the subcomponent's jurisdiction that would meet
either of the criteria in paragraph (h) of this section, the
subcomponent will promptly notify the applicant that the subcomponent
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, a subcomponent 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 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) 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 for
use by any other USDA subcomponent.
(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 in the Federal Register of USDA's
establishment or revision of the categorical exclusion and location of
availability of any additional written record.
(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.
(ii) Once a categorical exclusion is adopted by one USDA
subcomponent, it will be available for use to all other USDA
subcomponents.
(iii) Non-USDA categorical exclusions that were already adopted by
a USDA subcomponent prior to the 2025
[[Page 17096]]
revision of this part are tracked by USDA and may be used by any other
USDA subcomponent on proposed actions that fit the categorically
excluded actions. Adopted categorical exclusions 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
paragraph (d)(3) of this section; 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, as
informed by interdisciplinary review, 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;
(v) Specially managed areas, such as designated research or
experimental areas, coral reefs, coastal barrier resources, or, unless
exempt, coastal zone management areas;
(vi) Prime, unique, or important farmland as defined by and subject
to the provisions of the Farm Protection Policy Act;
(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 or listed on the National Register of Historic Places; or
(viii) American Indian and Alaska Native religious or cultural
sites.
(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, the responsible official should consider if there is
something unique to the actions proposed or to the condition of the
affected environment or resource(s) considered that creates uncertainty
about the degree of potential effect or would lead to a reasonably
foreseeable significant effect. 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
[[Page 17097]]
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 state how 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. Responsible
officials may also rely on a previous determination by the USDA
subcomponent or another agency that:
(1) A category or categories applies to the activities being
proposed when the activities are substantially the same as those
activities being proposed by the USDA subcomponent; or
(2) A category or categories applies to the activities being
proposed when the activities are substantially the same as those
activities being proposed by the USDA subcomponent and no extraordinary
circumstance exists when the potentially affected environment and
resources considered for extraordinary circumstances are substantially
the same.
(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 (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, 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
[[Page 17098]]
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 Public Law 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 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.
[[Page 17099]]
(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 or for energy or telecommunication 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.
(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
[[Page 17100]]
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;
(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;
(xviii) New utility service connections to individual users or
construction of utility lines or associated components where the
applicant has no control over the placement of the utility facilities;
(xix) Upgrading or rebuilding existing telecommunication facilities
(both wired and wireless) or addition of aerial cables for
communication purposes to electric power lines that would not affect
the environment beyond the previously-developed, existing rights-of-
way; and
(xx) Conversion of land in agricultural production to pastureland
or forests, or conversion of pastureland to forest.
(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.
(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) [Reserved]
(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;
[[Page 17101]]
(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.
(xix) 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.
(33) (USDA-33c-RD) Financial assistance for the purchase, transfer,
lease, or other acquisition of real property when no or minimal change
in use is reasonably foreseeable.
(i) Real property includes land and any existing permanent or
affixed structures.
(ii) ``No or minimal change in use is reasonably foreseeable''
means no or only a small change in use, capacity, purpose, operation,
or design is expected where the foreseeable type and magnitude of
impacts would remain essentially the same.
(34) (USDA-34c-RD) Financial assistance for the purchase, transfer,
or lease of personal property or fixtures where no or minimal change in
operations is reasonably foreseeable. These include:
(i) [Reserved]
(ii) Acquisition of end-user equipment and programming for
telecommunication distance learning;
(iii) Purchase, replacement, or installation of equipment necessary
for the operation of an existing facility (such as Supervisory Control
and Data Acquisition Systems (SCADA), energy management or efficiency
improvement systems (including heat rate efficiency), replacement or
conversion to enable use of renewable fuels, standby internal
combustion electric generators, battery energy storage systems, and
associated facilities for the primary purpose of providing emergency
power);
(iv) Purchase of vehicles (such as those used in business, utility,
community, or emergency services operations);
(v) Purchase of existing water rights where no associated
construction is involved;
(vi) Purchase of livestock and essential farm equipment, including
crop storing and drying equipment; and
(vii) Purchase of stock in an existing enterprise to obtain an
ownership interest in that enterprise.
(35) (USDA-35c-RD) Financial assistance for operating (working)
capital for an existing operation to support day-to-day expenses.
(36) (USDA-36c-RD) Sale or lease of Agency-owned real property, if
the sale or lease of Agency-owned real property will have no or minimal
construction or change in current operations in the foreseeable future.
(37) (USDA-37c-RD) The provision of additional financial assistance
for cost overruns where the purpose, operation, location, and design of
the proposal as originally approved has not been substantially changed.
(38) (USDA-38c-RD) Rural Business Investment Program (7 U.S.C. 1989
and 2009cc et seq.) actions as follows:
(i) Non-leveraged program actions that include licensing by USDA of
Rural Business Investment Companies (RBIC); or
(ii) Leveraged program actions that include licensing by USDA of
RBIC and Federal financial assistance in the form of technical grants
or guarantees of debentures of an RBIC, unless such Federal assistance
is used to finance construction or development of land.
(39) (USDA-39c-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.
(40) (USDA-40c-RD) Site characterization, environmental testing,
and monitoring where no significant alteration of existing ambient
conditions would occur. This includes, but is not limited to, air,
surface water, groundwater, wind, soil, or rock core sampling;
installation of monitoring wells; and installation of small-scale air,
water, or weather monitoring equipment.
(d) The following categorical exclusions require NEPA
documentation, which will be completed as set forth at Sec. 1b.3(g).
For CEs promulgated by Natural Resources and Conservation Service
(indicated by NRCS at the end of the category number), USDA
subcomponents must adhere to NRCS Conservation Practice Standards, or
to comparable technical guidelines, or similar agency-specific
conservation or best management practices, as determined at the sole
discretion of the subcomponent's responsible official.
(1) (USDA-01d-FSA) Construction or ground disturbance actions.
(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;
[[Page 17102]]
(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 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-
[[Page 17103]]
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 paragraphs (d)(24)(i)(A) through
(J). 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, 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
[[Page 17104]]
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) [Reserved]
(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) (See discussion in the preamble for the final
rule regarding the status of this CE.)
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
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:
[[Page 17105]]
(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 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:
[[Page 17106]]
(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 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 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 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
[[Page 17107]]
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 scope of analysis required in paragraph (b) of this section and 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
impacts, 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. The certifying statement does not require a
signature. Approval to publish the environmental assessment to a USDA
website indicates the responsible official has reviewed the
environmental assessment and concurs with the certifying statement.
(7) Unique identification number. The USDA subcomponent shall
include a unique identification number on the environmental assessment,
as required by Sec. 1b.9(u).
(d) Page limits--(1) Length of text. The text of an environmental
assessment will not exceed 75 pages (NEPA section 107(e)(2), 42 U.S.C.
4336a(e)(2)), 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 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)
[[Page 17108]]
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 of
environmental impacts. 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.
(i) 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 national or regional
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.
(ii) Publication of a notice of intent for an environmental
assessment shall be at the sole discretion of the responsible official.
When opting to publish a notice of intent for an environmental
assessment, the responsible official will publish the notice in the
Federal Register and include the following:
(A) The purpose and need for the proposed action;
(B) A preliminary description of the proposed action and known
alternatives, if any, that will be considered in the environmental
assessment;
(C) A schedule for the decision-making process on whether to issue
a finding of no significant impact or prepare an environmental impact
statement;
(D) A link to the USDA website where additional information about
the proposal can be found, to include publication of the environmental
assessment and finding of no significant impact, as required by
paragraph (f) of this section and Sec. 1b.6(d); and
(F) Contact information for a person within the lead agency who can
answer questions about the proposed action and the environmental
assessment.
(iii) Notwithstanding other statutory or regulatory requirements,
the decision to solicit public comment in the notice of intent for an
environmental assessment shall be at the sole discretion of the
responsible official.
(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 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, 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
[[Page 17109]]
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.
(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
[[Page 17110]]
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 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 the following in a manner designed
to inform those persons or organizations who may be interested in or
affected by the proposed action or action alternatives:
(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.
(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.
[[Page 17111]]
(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.
(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 scope of analysis required in paragraph (g) of this section and 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.
(v) The unique identification number, as required by Sec. 1b.9(u).
(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. Consequences
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)) and recommend
alternative uses of available resources for unresolved conflicts
associated with the proposed action (NEPA section 102(2)(H)), 42 U.S.C.
4332(2)(H));
(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 impacts, 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 paragraph
(h)(3) of this section. 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
[[Page 17112]]
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 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. The certifying statement does not require a
signature. Approval to publish the environmental impact statement to a
USDA website indicates the responsible official has reviewed the
environmental impact statement and concurs with the certifying
statement.
(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 (NEPA section 107(e)(1)(A), 42 U.S.C. 4336a(e)(1)(A)), not
including citations or appendices.
(1) An environmental impact statement for a proposal of
extraordinary complexity will not exceed 300 pages (NEPA section
107(e)(1)(B), 42 U.S.C. 4336a(e)(1)(B)), not including any citations or
appendices.
(2) USDA subcomponents shall coordinate with the USDA Senior Agency
Official, 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 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
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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 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) 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. If the
responsible official decides to adopt any mitigation, state the
statutory or regulatory authority for the mitigation. 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 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
[[Page 17114]]
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 NEPA process, required
findings and determinations (to include those required for other
applicable laws or regulations), and approval of the action. The
proposal record is not determinative of the scope and content of an
administrative record prepared for litigation pursuant to the
Administrative Procedure Act or other law. 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
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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--that specifically supports the environmental
document or associated finding or 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 and make
the materials reasonably available for review by potentially interested
parties.
(ii) When an opportunity for comment is provided and the documents
or information being commented on refer to material incorporated by
reference, this material must be reasonably available for inspection,
in draft or final form, by potentially interested persons within the
time allowed for comment.
(iii) Subcomponents should not incorporate by reference unredacted
information that is privileged, classified, or subject to any other
potential withholdings (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 itself--provided that the assessment,
statement, finding, 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 the nature of the proposal,
the potentially affected environment, and the anticipated effects are
substantially the same for the current proposal being considered. The
USDA subcomponent relying on the previously completed analysis shall
specify the reliance in the applicable environmental document or
finding or decision document and provide explanation of how the nature
of the proposal, the potentially affected environment, and the
anticipated effects (both quantitatively and qualitatively) were
determined to be substantially the same.
(i) When relying on environmental impact statements and
environmental assessments in full. For an environmental impact
statement relied on in full, 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 relied on in full, the document
shall be published, with the new finding of no significant impact, on a
USDA website and included in the proposal record.
(ii) Relying on categorical exclusion determinations. For
categorical exclusions requiring documentation in accordance with
legislation, Sec. 1b.4(d), or as required by the agency from which a
category was adopted, the responsible official will document their
reliance on categorical exclusion determinations (as discussed in Sec.
1b.3(h)) when completing NEPA documentation in accordance with Sec.
1b.3(g).
(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 in response to publication of a
notice of intent to prepare an environmental
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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.
(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
fulfill the role of lead agency as outlined in NEPA section 107(a)(2)
and determine the scope of the analysis for the proposal in accordance
with sections 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
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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 USDA subcomponent may, with
respect to a proposal, designate as a cooperating agency any Federal,
State, Tribal, or local agency that has eligibility based on their
jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal.
(i) The responsible official for a lead USDA subcomponent may
invite eligible agencies to participate as cooperating agencies when a
USDA subcomponent is developing an environmental assessment or
environmental impact statement. When it will be necessary for an
eligible agency to rely on an environmental assessment or environmental
impact statement to authorize actions associated with the proposal for
which they have jurisdiction by law, the responsible official for the
lead USDA subcomponent shall invite the eligible agency to be a
cooperating agency.
(ii) The responsible official for the lead USDA subcomponent must
consider any request by an eligible agency to participate in a
particular environmental assessment or environmental impact statement
as a cooperating agency. Such request shall not be arbitrarily denied.
When it will be necessary for the requesting agency to rely on an
environmental assessment or environmental impact statement to authorize
actions associated with the proposal for which they have jurisdiction
by law, the responsible official for the lead USDA subcomponent shall
accept the agency's request to be a cooperating agency. If the
responsible official for the lead USDA subcomponent denies a request,
they must communicate the reasons to the requesting agency and ensure
the reasons are documented in the proposal record. Denial of a request
for cooperating agency status is not subject to any internal
administrative review process, nor is it a final agency action subject
to review under the Administrative Procedure Act, 5 U.S.C. 701 et seq.
(iii) USDA subcomponents within the Department will be cooperating
agencies with other USDA subcomponents when requested.
(iv) USDA subcomponents should work with cooperating agencies to
develop and adopt appropriate documentation that includes their
respective roles, assignment of issues, schedules, and staff
commitments so that the NEPA process remains on track and within the
time schedule. Such documentation must be used in the case of non-
Federal agencies and must include a commitment to maintain the
confidentiality of documents and deliberations during the period prior
to the public release by the USDA subcomponent of any environmental
document, including drafts that may be circulated for review, to the
extent permitted by the Freedom of Information Act and other applicable
law. However, no documentation can require a cooperating agency to
waive the right to judicial review.
(v) A lead USDA subcomponent shall consider comments from
cooperating agencies that have been submitted no later than a date
specified in the established schedule.
(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 an
environmental document is being developed by more than one USDA
subcomponent, all USDA subcomponents shall contribute to the completion
of one environmental document and shall not develop separate documents
for each subcomponent, unless other statutory requirements demonstrate
it is more efficient to do so. 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 or authorizing given the nature of
the actions proposed and the responsible official's statutory
authority.
(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
[[Page 17118]]
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. Responsible officials
shall reevaluate environmental documents for which a USDA subcomponent
was the lead agency if a major Federal action or portion thereof is
incomplete and ongoing, and the USDA subcomponent makes substantial
changes to the major Federal action, or there are new circumstances or
information with relevance to the proposal and these have bearing on
the major Federal action, such that there is potential to alter the
disclosure of adverse effects. USDA subcomponents will proceed as
follows depending on the outcome of the reevaluation:
(1) Reevaluation determines updates are not necessary. If the
responsible official determines after reevaluation that it is not
necessary to correct, revise, or supplement an environmental document,
implementation of the major Federal action may continue. The USDA
subcomponent may document the reevaluation determination in the
proposal record in a format deemed sufficient by the responsible
official.
(2) Reevaluation determines updates are necessary for documents
other than a filed EIS. If the responsible official determines an
environmental document, other than an environmental impact statement
that has been filed with the Environmental Protection Agency, requires
corrections, revisions, or supplements, updates should be made as
follows:
(i) If updates, such as minor corrections or revisions, do not
substantially change the major Federal action and do not substantially
alter the disclosure of adverse effects, the subcomponent may continue
to implement the major Federal action, or portion thereof, and shall
document the reevaluation and description of updates in the proposal
record in a format deemed sufficient by the responsible official. The
reevaluation documentation shall be posted to the USDA website along
with the original environmental document. The responsible official
should consider if courtesy notification of the updates needs to be
provided to any joint, cooperating, or participating agencies or other
pertinent parties that that may be affected by the updates.
(ii) If updates substantially change the major Federal action or
substantially alter the disclosure of adverse effects, the USDA
subcomponent should not continue implementing those portions of the
action that are changing or that have been materially affected by new
circumstances or information unless the subcomponent invokes an
emergency authority, as identified in paragraph (v) of this section, or
a NEPA exemption. The responsible official shall supplement the
published environmental document and shall consider whether the updates
warrant a higher level of NEPA review. Supplemental NEPA may require
notifications to any joint, cooperating, or participating agencies, or
other pertinent parties that will be directly affected by the updates.
The USDA subcomponent shall:
(A) Consider feedback received from joint, cooperating, or
participating agencies or other pertinent parties, if applicable;
(B) Post the supplemental document(s) to the USDA website as a
separate version from the original posted; and
(C) Notify joint, cooperating, or participating agencies or other
pertinent parties, if applicable, of the availability of the updated
document(s).
(3) Reevaluation determines updates are necessary for a filed EIS.
If the responsible official determines an environmental impact
statement that has been filed with the Environmental Protection Agency
requires corrections, revisions, or supplements, updates should be made
as follows:
(i) If minor corrections or revisions do not substantially change
the major Federal action and do not substantially alter or add
disclosure of significant adverse impacts, the subcomponent may
continue to implement the major Federal action, or portion thereof, and
shall file an errata sheet with the Environmental Protection Agency
(EPA), following the EPA filing guidance. The errata sheet may be
completed in any format so long as it includes and is made available as
follows:
(A) The title of the environmental impact statement, as it appears
on the document filed with the EPA;
(B) A citation to the notice of availability the EPA published in
the Federal Register after the environmental impact statement was
filed;
(C) Citations to the pages and sections in the environmental impact
statement where information is being updated;
(D) Clear descriptions of what is being updated and an explanation
of why the update is needed;
(E) A statement by the responsible official that the updates do not
substantially change the proposed action (or selected alternative), do
not add disclosure of additional significant adverse impacts, and do
not change the determinations made in the Record of Decision;
(F) Date and signature of the responsible official;
(G) A copy of the errata sheet is published to the USDA website
where a copy of the environmental impact statement is also published;
and
(H) Notification of the updates is provided, if necessary, to any
Federal agency that has jurisdiction by law or special expertise with
respect to any environmental impact involved or is authorized to
develop and enforce environmental standards, or to appropriate State,
Tribal, and local agencies that are authorized to develop and enforce
environmental standards, or other pertinent parties.
(ii) If updates substantially change the major Federal action or
substantially alter or add disclosure of significant adverse impacts,
the USDA subcomponent should not continue implementing those portions
of the action that are changing or that have been materially affected
by new circumstances or information unless the subcomponent invokes an
emergency authority, as identified in paragraph (v) of this section, or
a NEPA exemption. The USDA subcomponent shall prepare a supplemental
EIS in accordance with Sec. 1b.7.
(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
[[Page 17119]]
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 for 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) Emergency actions. (1) If emergency circumstances exist that
make it necessary to take action to address imminent threats to life,
property, or important natural, cultural, or historic resources, the
responsible official may take such actions without preparing a NEPA
analysis. When taking such actions, the responsible official shall take
into account the probable environmental consequences of the emergency
action and consider taking steps to mitigate reasonably foreseeable
adverse environmental effects to the extent practical and consistent
with agency authority.
(2) When taking actions other than those described in paragraph
(v)(1) of this section that are not likely to have a reasonably
foreseeable significant impacts, but emergency circumstances exist that
make it necessary to take actions before preparing a categorical
exclusion that requires NEPA documentation, an environmental
assessment, or a finding of no significant impact, USDA subcomponents
may authorize alternative arrangements for NEPA 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 Utility 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).
(3) When taking actions other than those described in paragraph
(v)(1) of this section that are likely to have reasonably foreseeable
significant impacts, but emergency circumstances exist that make it
necessary to take the 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, or their designee.
The USDA Senior Agency Official, or their designee, will coordinate
with the applicable USDA mission area when arranging consultation with
CEQ. The USDA Senior Agency Official, or their designee, and CEQ will
limit such arrangements to 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 subcomponent. 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
[[Page 17120]]
the subcomponent's purview. The subcomponent 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 subcomponent.
(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 subcomponent 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 Sec. 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 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 USDA.
(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, resource
protection measures, best management practices, or conservation
practices etc.) means constraints or requirements that are included as
part of the proposed action (or action alternatives) through an
iterative interdisciplinary process, in coordination with the applicant
if applicable, 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 to the proposed action in
response to an issue raised during interdisciplinary preparation or
through external comments submitted regarding the proposal, that issue
should no longer be analyzed in detail in the analysis process. Design
criteria include constraints or requirements as part of the proposed
action that:
(i) Avoid the adverse impact altogether;
(ii) Minimize adverse impacts by limiting the degree or magnitude
of the action and its implementation; or
(iii) Reduce or eliminate the adverse impact over time by
preservation and maintenance operations during the life of the action.
(12) Effect 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
appropriate for analysis under NEPA may be either beneficial or
adverse, or both, with respect to these values.
(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.
(13) Emergency means circumstances exist that make it necessary to
take action where delaying action to follow
[[Page 17121]]
standard procedures for completing NEPA analysis 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 paragraph (a)(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 this part, 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. For those categories that require NEPA documentation, this
finding must be documented.
(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 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. Mitigation is
documented in a finding of no significant impact (FONSI) or record of
decision (ROD) and is determined by the responsible official in
reaction to the effects described in an environmental assessment or
environmental impact statement. When adopting mitigation measures as
part of the FONSI or ROD, the statutory or regulatory authority for any
mitigation must be provided. 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
[[Page 17122]]
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 documented 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. At
USDA, the Deputy Secretary is the senior agency official.
(50) Significance means the degree of effects of the specific
action on the potentially affected environment.
(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 and beneficial
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 and irretrievable commitment of a Federal
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
USDA.
(53) Substantive means information that meaningfully informs the
consideration of reasonably foreseeable impacts on the human
environment, the resulting significance determination, decisions on how
to proceed (i.e., alternatives to be considered or analyzed or the
alternative selected for implementation), or compliance with applicable
laws, executive orders, and regulations.
(54) USDA website means a website managed by USDA or a USDA
subcomponent or the website of a proponent or other federal agency when
a USDA website redirects to the proponent or other agency website to
find the information or environmental documents required to be
published and accessible to the public.
(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.
Stephen Vaden,
Deputy Secretary, U.S. Department of Agriculture.
[FR Doc. 2026-06537 Filed 4-2-26; 8:45 am]
BILLING CODE 3410-90-P