Rule2025-12326
National Environmental Policy Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 3, 2025
Effective
July 3, 2025
Issuing agencies
Agriculture Department
Abstract
This interim final rule modifies the U.S. Department of Agriculture (USDA) regulations implementing the National Environmental Policy Act (NEPA) and removes various USDA agency regulations for implementing NEPA. USDA is taking this action in response to the Council on Environmental Quality's rescission of its NEPA implementing regulations (which USDA's NEPA regulations were designed to supplement), statutory changes to NEPA, executive orders, and case law. Comments are voluntarily requested on this action to inform USDA's decision-making.
Full Text
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<title>Federal Register, Volume 90 Issue 126 (Thursday, July 3, 2025)</title>
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[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29632-29674]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12326]
[[Page 29631]]
Vol. 90
Thursday,
No. 126
July 3, 2025
Part II
Department of Agriculture
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7 CFR Parts 1b, 372, 520, et al.
36 CFR Part 220
National Environmental Policy Act; Interim Final Rule
Federal Register / Vol. 90 , No. 126 / Thursday, July 3, 2025 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
7 CFR Parts 1b, 372, 520, 650, 799, 1970, and 2407
36 CFR Part 220
[USDA-2025-0008]
RIN 0503-AA86
National Environmental Policy Act
AGENCY: Agriculture (USDA).
ACTION: Interim final rule; request for public comment.
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SUMMARY: This interim final rule modifies the U.S. Department of
Agriculture (USDA) regulations implementing the National Environmental
Policy Act (NEPA) and removes various USDA agency regulations for
implementing NEPA. USDA is taking this action in response to the
Council on Environmental Quality's rescission of its NEPA implementing
regulations (which USDA's NEPA regulations were designed to
supplement), statutory changes to NEPA, executive orders, and case law.
Comments are voluntarily requested on this action to inform USDA's
decision-making.
DATES: This rule is effective July 3, 2025. Comments concerning this
rule must be received by July 30, 2025.
ADDRESSES: Comments, identified by USDA-2025-0008, should be sent via
one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: USDA, 1400 Independence Ave. SW, Washington, DC
20250-0108.
Comments should be confined to issues pertinent to the interim
final rule, explain the reasons for any recommended changes, and
reference the specific section and wording being addressed, where
possible. All timely comments will be placed in the record and be
available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal information provided. Do not submit any
information you consider to be private, confidential business
information, or other information whose disclosure is restricted by
statute.
FOR FURTHER INFORMATION CONTACT: Scott Vandegrift, Chief Environmental
Review and Permitting Officer, Office of the Secretary, 202-720-5166,
<a href="/cdn-cgi/l/email-protection#3467791a7b6771771a7a66711a7a71647574414750551a535b42"><span class="__cf_email__" data-cfemail="0c5f4122435f494f22425e492242495c4d4c797f686d226b637a">[email protected]</span></a>. Individuals who use telecommunications
devices for the hearing-impaired may call 711 to reach the
Telecommunications Relay Service, 24 hours a day, every day of the
year, including holidays.
SUPPLEMENTARY INFORMATION:
I. Background
On February 25, 2025, CEQ issued an interim final rule rescinding
their regulations in response to Executive Order (E.O.) 14154,
Unleashing American Energy.
CEQ's interim final rule rescinded its NEPA implementing
regulations, including 40 CFR parts 1500, 1501, 1502, 1503, 1504, 1505,
1506, 1507, and 1508. The effective date of CEQ's interim rule was
April 11, 2025. The background of CEQ's regulations, recent litigation,
and relevant executive orders leading up to their February 25, 2025,
interim final rule support the rationale underlying this interim final
rule.
The Department of Agriculture (USDA) is issuing this interim final
rule to revise, move and republish, or remove portions of USDA's
existing regulations for implementing the National Environmental Policy
Act (NEPA) of 1969, 42 U.S.C. 4321-4347, as amended by the Fiscal
Responsibility Act of 2023, as well as add new portions to the USDA
NEPA implementing regulations for three independent reasons.
First, CEQ's regulations were repealed effective April 11, 2025;
see Removal of National Environmental Policy Act Implementing
Regulations, 90 FR 10610 (Feb. 25, 2025). USDA and its agencies'
regulations were promulgated as a ``supplement'' that ``incorporates
and adopts'' the CEQ's NEPA regulations, see 7 CFR 1b.1(a). However,
the CEQ regulations (40 CFR parts 1500 through 1508) no longer provide
a valid foundation for USDA NEPA regulations. Second, Congress recently
amended NEPA in significant part, in the Fiscal Responsibility Act of
2023 (FRA), Public Law 118-5, signed on June 3, 2023, in which Congress
added substantial detail and direction in Title I of NEPA regarding
procedural issues that CEQ and individual acting agencies had
previously addressed in their own procedures. USDA recognized the need
to update its regulations considering these significant legislative
changes. Since USDA's regulations were originally designed as a
supplement to CEQ's NEPA regulations, USDA had been awaiting CEQ action
before revising its regulations, consistent with CEQ direction. See 40
CFR 1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However,
with CEQ's regulations now rescinded, and with USDA's NEPA implementing
procedures still unmodified more than two years after this significant
legislative overhaul, it is exigent that USDA move quickly to conform
its procedures to the statute as amended. And third, the U.S. Supreme
Court recently issued a landmark decision in Seven County
Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct. 1497
(2025), in which it decried the ``transform[ation]'' of NEPA from its
roots as ``a modest procedural requirement,'' into a significant
``substantive roadblock'' that ``paralyze[s]'' ``agency decision-
making.'' Id. at 1507, 1513 (quotations omitted). The Supreme Court
explained that part of that problem had been caused by decisions of
lower courts, which it rejected, issuing a ``course correction''
mandating that courts give ``substantial deference'' to reasonable
agency conclusions underlying its NEPA process. Id. at 1513-14. But the
Court also acknowledged, and through its course correction sought to
address, the effect on ``litigation-averse agencies'' which, in light
of judicial ``micromanage[ment],'' had been ``tak[ing] ever more time
and [ ] prepar[ing] ever longer EISs [environmental impact statements]
for future projects.'' Id. at 1513. USDA incorporated this case's
holdings into these procedures, availing itself of the latest
information and guidance from the Court for its future NEPA
application.
These reasons now prompt USDA to publish this interim final rule to
revise, move and republish, or remove portions of the USDA NEPA
implementing regulations, as well as add new portions, given the CEQ
NEPA regulations no longer provide a foundation for USDA NEPA
regulations and leave the Department without necessary interpretation
of, and implementing procedures for, NEPA. NEPA is a vital part of
Federal agency planning and decision-making, and USDA agencies need
clear standards and guidelines as soon as possible to conduct the work
of providing critical services and funds to Americans, as directed by
Congress. Conducting a standard rulemaking process would impede USDA's
planning and decision-making for longer than necessary and would be
impracticable and contrary to the public interest. For these reasons,
USDA is using the interim final rule process. (Also see discussion
under Section III. for additional rationale for using the interim rule
process.)
National Environmental Policy Act
Congress enacted NEPA to declare a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote
[[Page 29633]]
the general welfare, to create and maintain conditions under which man
and nature can exist in productive harmony, and [to] fulfill the
social, economic, and other requirements of present and future
generations of Americans.'' 42 U.S.C. 4331(a).
As amended by the Fiscal Responsibility Act of 2023, Public Law
118-5, NEPA furthers this national policy by requiring Federal agencies
to prepare a ``detailed statement'' for proposed ``major Federal
actions significantly affecting the quality of the human environment.''
42 U.S.C. 4332(2)(C). This statement must address: (1) the reasonably
foreseeable environmental impacts of the proposed agency action; (2)
the reasonably foreseeable adverse environmental impacts that cannot be
avoided; (3) a reasonable range of alternatives to the proposed agency
action that are technically and economically feasible and meet the
purpose and need of the proposal, including an analysis of any negative
environmental impacts of not implementing the proposed agency action in
the case of a no action alternative; (4) the relationship between local
short-term uses of man's environment and the maintenance and
enhancement of long-term productivity; and (5) any irreversible and
irretrievable commitments of resources that would be involved in the
proposed action (or action alternatives). 42 U.S.C. 4332(2)(C).
NEPA further mandates that Federal agencies ensure the professional
and scientific integrity of environmental documents; use reliable data
and resources when carrying out NEPA; and study, develop, and describe
technically and economically feasible alternatives. 42 U.S.C.
4332(2)(D)-(F). NEPA provides procedures for making threshold
determinations about whether an environmental document must be prepared
and, if so, which type of environmental document. 42 U.S.C. 4336(a)-
(b).
NEPA identifies three levels of review--categorical exclusion,
environmental assessment, and environmental impact statement. NEPA
Sec. 107, 42 U.S.C. 4336a. A categorical exclusion is a ``a category
of actions that a Federal agency has determined normally does not
significantly affect the quality of the human environment within the
meaning of [NEPA] section 102(2)(C).'' NEPA Sec. 111(1), 42 U.S.C.
4336e(1). An environmental assessment is a ``concise'' document
``set[ting] forth the basis of [an] agency's finding of no significant
impact or determination that an environmental impact statement is
necessary,'' prepared in connection with a proposed agency action that
does not have a significant impact or the significance of whose impact
is unknown. NEPA Sec. 106(b)(2), 42 U.S.C. 4336(b)(2). An
environmental impact statement is a detailed statement analyzing a
proposed agency action with reasonably foreseeable significant impacts,
governed by the provisions of NEPA Sec. Sec. 102(2)(C), 106(b)(1); 42
U.S.C. 4332(2)(C), 4336(b)(1).
NEPA does not mandate particular results or substantive outcomes.
Seven County, 145 S. Ct., at 1510. Rather, NEPA requires Federal
agencies to consider the environmental effects of proposed actions as
part of Federal agency decision-making processes. As amended by the
Fiscal Responsibility Act, NEPA provides additional requirements to
facilitate timely and unified Federal reviews, including provisions
clarifying lead, joint lead, and cooperating agency designations,
generally requiring the development of a single environmental document,
directing agencies to develop procedures for proposal sponsors to
prepare environmental assessments and environmental impact statements,
and prescribing page limits and deadlines. NEPA Sec. 107, 42 U.S.C.
4336a. NEPA also sets forth the circumstances under which agencies may
rely on programmatic environmental documents, NEPA Sec. 108, 42 U.S.C.
4663b, and adopt and use another agency's categorical exclusions, NEPA
Sec. 109, 42 U.S.C. 4336c.
II. Basis for Consolidating and Revising USDA's NEPA Regulations
A. USDA NEPA Regulations
In 1974, the Secretary of Agriculture issued Memorandum No. 1695,
Supplement 4 (Revised), to establish guidelines for the preparation of
environmental impact statements and compliance with other procedural
requirements of Sec. 102(2) of the National Environmental Policy Act
(NEPA). On May 1, 1979 (44 FR 25606) and July 30, 1979 (44 FR 44802),
the Department of Agriculture (USDA) proposed and finalized rules
setting forth policies and procedures for compliance with NEPA and the
Council on Environmental Quality's (CEQ) implementing regulations (40
CFR parts 1500 through 1508). On occasion, the Department has further
amended its NEPA regulations to refine and adjust to better meet its
organizational and program needs. See 44 FR 44802, 46 FR 47747, 48 FR
11403, 60 FR 66481, 76 FR 4802.
USDA promulgated its current regulations in 1995 (60 FR 66481, Dec.
22, 1995), to ``[supplement] the regulations for the implementation of
the National Environmental Policy Act (NEPA), for which regulations
were published by the CEQ in 40 CFR parts 1500 through 1508 [and
incorporate and adopt] those regulations.'' Subtitle A, part 1b.1 of
title 7 of the Code of Federal Regulations (hereinafter 7 CFR 1b). USDA
NEPA regulations were dependent upon provisions in the 1978 CEQ
regulations. Similarly, individual USDA agency NEPA regulations
expressly state that their ``purpose'' is to supplement and implement
CEQ regulations:
(1) Agricultural Research Service, subtitle B, chapter V, part 520,
of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 520):
``These procedures incorporate and supplement, and are not a substitute
for, CEQ regulations under 40 CFR parts 1500-1508, and Department of
Agriculture NEPA Policies and Procedures under 7 CFR part 1b.'' (7 CFR
520.1);
(2) Animal Plant Health and Inspection Service, subtitle B, chapter
III, part 372, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 372): ``These procedures implement section 102(2) of
the National Environmental Policy Act (NEPA) by assuring early and
adequate consideration of environmental factors in Animal and Plant
Health Inspection Service planning and decision-making and by promoting
the effective, efficient integration of all relevant environmental
requirements under NEPA. The goal of timely, relevant environmental
analysis will be secured principally by adhering to NEPA implementing
regulations (40 CFR parts 1500-1508), especially provisions pertaining
to timing (Sec. 1502.5), integration (Sec. 1502.25), and scope of
analysis (Sec. 1508.25).'' (7 CFR 372.1);
(3) Farm Service Agency, subtitle B, chapter VII, subchapter G,
part 799, of title 7 of the Code of Federal Regulations (hereinafter 7
CFR 799): ``This part: . . . (2) Establishes FSA procedures to
implement the (i) National Environmental Policy Act (NEPA) of 1969, as
amended (42 U.S.C. 4321 through 4370); (ii) CEQ regulations (40 CFR
parts 1500 through 1518); and (iii) USDA NEPA regulations (Sec. Sec.
1b.1 through 1b.4 of this title).'' (7 CFR 799.1);
(4) National Institute of Food and Agriculture, subtitle B, chapter
XXXIV, part 3407, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 3407): ``The purpose of this regulation is to
supplement the regulations for implementation of NEPA established by
the CEQ and codified at 40 CFR parts
[[Page 29634]]
1500-1508, as adopted by USDA in 7 CFR part 1b.'' (7 CFR 3407.1);
(5) Natural Resources Conservation Service, subtitle B, chapter VI,
subchapter F, part 650, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 650): ``The procedures included in this rule
supplement CEQ's NEPA regulations, 40 CFR parts 1500-1508. CEQ
regulations that need no additional elaboration to address NRCS-
assisted actions are not repeated in this rule, although the
regulations are cited as references. The procedures include some
overlap with CEQ regulations. This is done to highlight items of
importance for NRCS. This does not supersede the existing body of NEPA
regulations.'' (7 CFR 650.1);
(6) Rural Development, subtitle B, chapter XVIII, subchapter H,
part 1970, of title 7 of the Code of Federal Regulations (hereinafter 7
CFR 1970): ``This part also supplements the CEQ regulations
implementing the procedural provisions of NEPA, 40 CFR parts 1500
through 1508. To the extent appropriate, the agency will take into
account CEQ guidance and memoranda.'' (7 CFR 1970.1); and
(7) U.S. Forest Service, chapter II, part 220, of title 36 of the
Code of Federal Regulations (hereinafter 36 CFR 220): ``This part
establishes Forest Service, U.S. Department of Agriculture (USDA)
procedures for compliance with the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321-4347) and the CEQ regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500
through 1508) . . . This part supplements and does not lessen the
applicability of the CEQ regulations and is to be used in conjunction
with the CEQ regulations and USDA regulations at 7 CFR part 1b.'' (36
CFR 220.1).
Departmental and agency NEPA regulations have been largely
organizational and technical, with limited substantive content. The
Department's past judgment has been that effective NEPA implementation
could be achieved by reliance on a policy statement in 7 CFR 1b.2 and
individual USDA agency NEPA regulations for tailored technical
procedures. For the reasons described above, the Department now
believes that a change is necessary to advance the Department's mission
in an efficient, flexible, and innovative manner while ensuring the
conservation and protection of the environment.
USDA has analyzed how best to respond to the CEQ's interim final
rule and fulfill NEPA's statutory requirements while allowing for
efficient program implementation. In the Department's judgment, given
that NEPA is a procedural statute that simply directs consideration of
reasonably foreseeable environmental impacts, it is sufficient for the
Department to issue a set of uniform procedures, and it is not
necessary for each agency with NEPA responsibilities across the
Department to supplement the Department NEPA regulations. Therefore,
USDA is proposing to correct course and right-size its NEPA regulations
consistent with applicable law.
B. USDA Agency-Specific NEPA Regulation Summaries
1. Statement of Purpose
USDA's new NEPA implementing procedures, as adopted via this
interim final rule, are a more faithful implementation of the statute
as amended in 2023 than its old procedures. These procedures implement
major structural features of the 2023 amendments, such as deadlines and
page limits for environmental assessments and environmental impact
statements, as directed at NEPA Sec. 107(g), 42 U.S.C. 4336(g), and
provide that USDA will complete preparation of these documents within
the maximum length and on the timeline that Congress intends. They
incorporate Congress's definition of ``major Federal action'' and the
exclusions thereto, as codified at NEPA Sec. 111(10), 42 U.S.C.
4336e(10). They incorporate Congress's mandated procedure for
determining the appropriate level of review under NEPA, as codified in
NEPA Sec. 106, 42 U.S.C. 4336. They incorporate Congress's direction
with respect to establishment, adoption, and application of categorical
exclusions, as codified at NEPA Sec. 111(10), 42 U.S.C. 4336e(10).
They provide procedures governing project-sponsor-prepared
environmental assessments and environmental impact statements, as
directed at NEPA Sec. 107(f), 42 U.S.C. 4336a(f). And they incorporate
Congress's revision to the requirements for what an agency must address
in its environmental impact statements, as codified at NEPA Sec.
102(2)(C), 42 U.S.C. 4332(2)(C), and Congress's requirement that public
notice and solicitation of comment be provided when issuing a notice of
intent to prepare an environmental impact statement, as directed at
NEPA Sec. 107(c), 42 U.S.C. 4336a(c). All of these are crucial
features of Congress's policy design and its purpose in the 2023
amendments that NEPA review be more efficient and certain.
Moreover, all of these respond to the President's directive in E.O.
14154; and all of these reflect the Supreme Court's recent and
unequivocal statement that NEPA is a purely procedural statute. The
Department is conscious of the Supreme Court's admonition that NEPA
review has grown out of all proportion to its origins of a ``modest
procedural requirement,'' creating, `` `under the guise' of just a
little more process,'' ``[d]elay upon delay, so much so that the
process seems to `borde[r] on the Kafkaesque.' '' Seven County, 145 S.
Ct. at 1513-1514. These procedures, therefore, are intended to align
NEPA with its Congressionally mandated dimensions, reflecting the
guidance given also by the President and the Supreme Court, and making
review under it faster, more flexible, and more efficient.
In reaching this decision, USDA acknowledges that third parties may
claim to have reliance interests in USDA's existing NEPA procedures.
But revised agency procedures will have no effect on ongoing NEPA
reviews, where USDA, following CEQ guidance, has held it will continue
to apply existing applications. Moreover, as the Supreme Court has just
explained, NEPA ``is a purely procedural statute'' that ``imposes no
substantive environmental obligations or restrictions.'' Seven County,
145 S. Ct. at 1507. Any asserted reliance interests grounded in
substantive environmental concerns are not in accord with the best
meaning of the law and are entitled to ``no . . . weight.'' Dep't of
Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891,
1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, the Department holds
that they are ``outweigh[ed]'' by ``other interests and policy
concerns.'' Id. Namely, the complex web of regulations that preexisted
the 2023 amendments to NEPA and the new Procedures repeatedly ``led to
more agency analysis of separate projects, more consideration of
attenuated effects, more exploration of alternatives to proposed agency
action, more speculation and consultation and estimation and
litigation,'' which in turn has meant that ``[f]ewer projects make it
to the finish line,'' or even ``to the starting line.'' Seven County,
145 S. Ct. at 1513-14. This has increased the cost of projects
dramatically, ``both for the agency preparing the EIS and for the
builder of the project,'' resulting in systemic harms to America's
infrastructure and
[[Page 29635]]
economy. Id. Correspondingly, the wholesale revision and simplification
of this regime, effectuated by these procedures, is necessary to ensure
efficient and predictable reviews, with significant upsides for the
economy and for projects of all sorts. This set of policy
considerations drastically outweighs any claimed reliance interests in
the preexisting procedures.
USDA has revised its NEPA implementing regulations to conform to
the 2023 statutory amendments, to respond to President Trump's
direction in E.O. 14154 to, ``[c]onsistent with applicable law,
prioritize efficiency and certainty over any other objectives,
including those of activist groups, that do not align with the policy
goals set forth in section 2 of [that] order or that could otherwise
add delays and ambiguity to the permitting process,'' and to address
the pathologies of the NEPA process and NEPA litigation as identified
by the Supreme Court. Where USDA has retained an aspect of its
preexisting NEPA implementing procedures, it is because that aspect is
compatible with these guiding principles; where USDA has revised or
removed an aspect, it is because that aspect is not so compatible.
2. General Overview of Changes
USDA is modifying the department-level NEPA regulations found at 7
CFR 1b to provide a valid foundation from which USDA mission areas,
agencies, and staff offices (or subcomponents) implement NEPA. 7 CFR 1b
would primarily retain and move the placement of the following
information currently contained in 7 CFR 1b and the individual agency
NEPA regulations below: categorical exclusions, which includes a list
of USDA agencies and offices excluded from completing an environmental
assessment or environmental impact statement; and emergency action
provisions. Some additional sections from agency-specific regulations
are also retained, as described in the agency-specific regulation
discussions listed below. Except for the information to be moved to the
revised 7 CFR 1b regulation, the following individual agency NEPA
regulations will be rescinded in full:
--Agricultural Research Service: 7 CFR 520;
--Animal and Plant Health Inspection Service: 7 CFR 372;
--Farm Service Agency: 7 CFR 799;
--National Institute of Food and Agriculture: 7 CFR 3407;
--Natural Resources Conservation Service: 7 CFR 650;
--Rural Development: 7 CFR 1970; and
--U.S. Forest Service: 36 CFR 220.
The following summaries capture additional specific changes that
are occurring for each affected USDA regulation. For all regulations,
references to CEQ's rescinded NEPA implementing regulations (40 CFR
parts 1500 through 1508) were removed. Where USDA agency NEPA
regulations cited portions of the agency regulation that are now being
rescinded, those references were also removed and revised to refer to
the applicable section in the revised 7 CFR 1b regulation. Where USDA
agency NEPA regulations used agency-developed terms, such as those
associated with agency-developed forms and other document types, these
have been generalized to allow for the application of consistent
Department implementing procedures for NEPA. As discussed previously,
USDA agencies will be able to issue agency-specific procedures through
technical and program guidance that aligns with NEPA and the Department
regulations at 7 CFR 1b.
3. USDA Departmental NEPA Regulations (7 CFR 1b)
USDA is revising the department-level NEPA regulations at 7 CFR 1b
to provide necessary guidance and direction for implementing NEPA in
the absence of the CEQ NEPA implementing regulations, as rescinded
effective April 11, 2025.
With the CEQ NEPA implementing regulations having been rescinded,
USDA identified opportunities to reduce redundant and duplicative
regulation revision efforts for agency-specific NEPA regulations and
instead establish necessary direction at the department-level. This
allows the Department to establish consistency across the
subcomponents, where desired, in how NEPA is implemented.
The following provides a summary of what is included or being
revised in each section of the department-level NEPA regulations, as
well as the rationale for the changes.
7 CFR 1b.1--Purpose: Previous paragraphs (a) and (b) in this
section are removed. Paragraphs (a) through (d) are added and this
section is now revised to read as indicated in 7 CFR 1b.1.
In this section, USDA removes reference to CEQ NEPA regulations at
40 CFR parts 1500 through 1508 and adds clarification of the purpose of
the revised departmental NEPA regulations. This section specifies the
mission areas, agencies, and staff offices (hereinafter USDA
subcomponents or subcomponent) the part applies to.
7 CFR 1b.2--Policy: Previous paragraphs (a), (b), (c), and (d) in
this section are removed. Paragraphs (a) through (i) are added and this
section is now revised to read as indicated in 7 CFR 1b.2. In this
section, USDA outlines the Department's policy on complying with NEPA
and specifies roles and responsibilities at the Department for managing
NEPA compliance. The Under Secretary of Natural Resources and
Environment continues to hold responsibility for ensuring overall
Department compliance with NEPA. This section provides clarification on
the issuance of agency-specific NEPA guidance for processes and
practices that address agency-specific laws and program efficiency.
USDA adds requirements to this section to submit to Congress on an
annual basis a report that identifies any environmental assessment and
environmental impact statement that such lead agency did not complete
by the deadline described in NEPA Sec. 107(g), 42 U.S.C. 4336a(g), as
amended in 2023, and provide an explanation for failure to meet
deadlines. Specifies USDA roles and responsibilities for completing
this report.
This section adds the process for how USDA subcomponents will
determine when NEPA does not apply. Consideration of whether the action
is a major Federal action is added, as the definition of major Federal
action was added to NEPA, as amended by the Fiscal Responsibility Act
of 2023. NEPA does not apply to ``non-Federal actions''; therefore,
under the terms of the statute, NEPA does not apply to actions with no
or minimal Federal funding, or with no or minimal Federal involvement
where a Federal agency cannot control the outcome of the proposal. A
but-for causal relationship is insufficient to make an agency
responsible for a particular action under NEPA. See Dept. of Transp. v.
Pub. Citizen, 541 U.S. 752, 767 (2004). By the same token, minimal
Federal funding or involvement, which may in a causal sense be a but-
for cause of an action, does not by itself convert that action into a
Federal action within the meaning of the language of the statute.
This section adds the process for how USDA subcomponents will
determine the level of NEPA that applies. Where some agency-specific
NEPA regulations identified categories of actions generally requiring
an environmental assessment or environmental impact statement, these
sections have not been carried forward into 7 CFR 1b. NEPA does not
require the identification of categories of actions other than those
actions that are categorically excluded from documentation in an
environmental assessment or environmental impact statement when a
Federal agency has
[[Page 29636]]
determined the actions normally do not significantly affect the quality
of the human environment within the meaning of NEPA Sec. 102(2)(C), 42
U.S.C. 4332(2)(C), NEPA Sec. 111(1), 42 U.S.C. 4336e(1)). Because the
determination of no significance was made during the process of
establishing the categorical exclusion, it is the consideration of
whether an extraordinary circumstance exists that may preclude the use
of the category (see 7 CFR 1b.3(f)). In determining whether a
categorical exclusion applies to a proposed action, and therefore does
not require preparation of an environmental assessment or environmental
impact statement, an agency should evaluate the action for
extraordinary circumstances that indicate a normally excluded action is
likely to have reasonably foreseeable significant adverse effect.
Determinations of whether to prepare an environmental assessment or
environmental impact statement should be based on the anticipated
degree of effect, in accordance with NEPA, not on the type of action.
An environmental assessment shall be prepared when a Federal agency
finds that a categorical exclusion does not apply to an action and the
action does not have a reasonably foreseeable significant impact on the
quality of the human environment, or the significance of such effect is
unknown (NEPA Sec. 106(b)(2) (42 U.S.C. 4336(b)(2); 7 CFR
1b.2(f)(iv)(A)) and 1b.5(a)). An environmental impact statement shall
be issued when a Federal agency finds that a categorical exclusion does
not apply and determines an action has a reasonably foreseeable
significant impact on the quality of the human environment (NEPA Sec.
106(b)(1) 42 U.S.C. 4336(b)(1); 7 CFR 1b.2(f)(iv)(B) and 1b.7(a)). This
policy accurately reflects the statutory requirements of NEPA for
determining the appropriate level of NEPA review (categorical
exclusion, environmental assessment, or environmental impact
statement).
This section also includes the new considerations for whether the
effects of the proposed action (or alternatives) are significant (7 CFR
1b.2(f)(3)). When defining considerations for significance, USDA is
using the concept of ``affected environment'' and a list of types of
effects that include both short- and long-term effects, both beneficial
and adverse effects, effects on public health and safety, economic
effects, and effects on the quality of life of the American people.
With regards to the rationale the responsible official provides as
to whether the degree of effect is significant, USDA is aligning
considerations of significance with the statutory items that must be
disclosed in an environmental impact statement, per NEPA Sec.
102(2)(C)(i-v) (42 U.S.C. 4332), such as disclosure of reasonably
foreseeable environmental impacts (as both short- and long-term
effects), consequences of not implementing the action, irreversible or
irretrievable commitment of Federal resources, and long-term
productivity of the human environment. Instead of leaving the list of
types of effects as disparate disclosures, USDA finds it logical to
bring these together when it comes to considerations for significance.
The terms ``compares to'' and ``contributes to,'' as included in the
considerations for significance, provide the necessary precision or
focus for conducting the analysis of the effects and considering how
the potential impacts compare to the consequences, especially as it
relates to effects on public health and safety, economics, and the
quality of life of the American people, as well as identifying
irreversible and irretrievable commitments and how these contribute to
loss of long-term productivity for the human environment. Outlining the
significance considerations in this manner allows those conducting
effects analysis to better focus on the issues to be analyzed in detail
for reasonably foreseeable significant impacts and allows the
responsible official to better communicate their rationale for deciding
how to proceed and why.
Specifies that as part of USDA subcomponent decision-making, NEPA
should be integrated with other environmental analyses to demonstrate
compliance with other laws. Also adds limitations on actions taken
during the NEPA process.
7 CFR 1b.3--Categorical Exclusions and Findings of Applicability
and No Extraordinary Circumstance: Revises the title of this section
from ``Categorical Exclusions'' to ``Categorical Exclusions and
Findings of Applicability and No Extraordinary Circumstance''.
Department-level categorical exclusions previously included in
paragraph (a) of this section are moved to Sec. 1b.4, with revisions
occurring to these as described in the discussion of changes for Sec.
1b.4. Previous paragraphs (b) and (c) in this section are removed.
Paragraphs (a) through (j) are added and this section is now revised to
read as indicated in 7 CFR 1b.3.
Adds procedures for establishing, revising, adopting, removing, and
applying categorical exclusions, as well as relying on other agency
categorical exclusion determinations.
Adds clarification that USDA subcomponents may use any of the
categorical exclusions listed at 7 CFR 1b.4, as well as use non-USDA
categories that were adopted by any other USDA subcomponent. The USDA
NEPA regulations have always included Department-wide CEs (now moved to
Sec. 1b.4). See 48 FR 11403 (March 18, 1983) and 60 FR 66481 (Dec. 22,
1995). Given the issuance of one set of departmental NEPA regulations
to provide consistency for all USDA subcomponents implementing NEPA,
the recission of agency-specific NEPA regulations, and the overlap of
similar programs and activities across USDA mission areas and agencies,
the Department finds it is appropriate for USDA subcomponents to apply
the same categorical exclusions where it makes sense to do so for the
actions proposed by the subcomponent.
Adds procedures for considering extraordinary circumstances,
explanation of what constitutes an extraordinary circumstance, and
clarification for how the subcomponent should proceed based on the
determination of whether there are extraordinary circumstances.
Clarifies an extraordinary circumstance means a unique situation exists
in which actions that normally do not have significant impacts and are
therefore categorically excluded from documentation in an environmental
assessment or environmental impact statement, create uncertainty
whether the degree of the impact is significant for the relevant
resources considered (7 CFR 1b.11(a)(17)). Previously, some agencies
had mandated lists of resources to consider for extraordinary
circumstances while other agencies had no list. Adds a list of
resources (based on the previously existing lists in some USDA agency-
specific NEPA regulations) a responsible official may consider for
extraordinary circumstances but does not mandate any of these must be
considered. Considerations for extraordinary circumstances will be made
at the responsible official's sole discretion and determined on a case-
by-case basis, considering the nature of the proposed action and the
potentially affected environment. Adds clarification on what
constitutes the existence of an extraordinary circumstance and
specifies that effects analysis completed to demonstrate compliance
with other applicable laws also can be relied on to determine no
extraordinary circumstance exists.
Adds the concept of a finding of applicability and no extraordinary
circumstance (FANEC), which applies
[[Page 29637]]
to all categorical exclusions. For those categories requiring NEPA
documentation, specifies that these determinations must be documented
to demonstrate the appropriate use of the category, adequate
consideration of extraordinary circumstances, and a determination that
no extraordinary circumstance exists. Gives agencies flexibility on how
to document these determinations so long as certain items are
addressed. Clarifies documentation considerations for other applicable
environmental laws and regulations and timing of action.
7 CFR 1b.4--Categorical Exclusion of USDA Subcomponents and
Actions: Revises the title of this section from ``Exclusion of
Agencies'' to ``Categorical Exclusion of USDA Subcomponents and
Actions''. Previous paragraphs (a) and (b) are combined into one
paragraph, now paragraph (a), which is revised to read as indicated in
7 CFR 1b.4. This section is revised to read as indicated in 7 CFR 1b.4.
Paragraphs (b), (c), and (d) are added to this section.
Paragraphs (a) include the list of USDA subcomponents generally
excluded from preparing an environmental assessment or environmental
impact statement and adds general offices of the Department to this
list.
The department-level categorical exclusions previously listed in
Sec. 1b.3 have been moved to paragraph (c) in this section. Examples
of actions that fit the category were added to some of the department-
wide categories, as further described under the agency-specific
regulation changes discussed below. Some agencies had categorical
exclusions that were duplicative of the department-wide categories or
served as examples of those categories; therefore, these were removed
as separate categories and added as examples of the department-wide
categories where applicable.
Categorical exclusions previously codified in USDA agency-specific
NEPA regulations are now consolidated under paragraphs (c) and (d) in
this section. Any changes to the categorical exclusion language, as
previously documented in agency-specific NEPA regulations, are
discussed under the applicable agency-specific justification sections
below. Other than these few modifications to categories, the majority
of categories remain unchanged as originally promulgated and are simply
moved from one section of USDA's regulations to another. Categories are
organized by those that do or do not require NEPA documentation. New
numbering was assigned to each categorical exclusion to make it easier
to reference categories across the Department as any USDA subcomponent
may utilize the categorical exclusions listed in 7 CFR 1b. Numbering
includes acronyms at the end indicating the agency that initially
established the category to help agency personnel more readily locate
the categories they are likely to continue using frequently.
7 CFR 1b.5--Environmental Assessments: This section is added to
read as indicated in 7 CFR 1b.5.
Adds procedures for issuing environmental assessments. Reinforces
the role of an environmental assessment (EA). Gives agencies
flexibility on how to format the EA so long as certain items are
addressed. Provides clarification on requirements for analysis of
alternatives for an EA and reiterates the importance of deadline and
page limit requirements from NEPA, as amended in 2023. Consideration of
taking no action shall be included as part of the environmental impacts
analysis to contrast the potential impacts of the proposed action, and
any alternative(s) if developed, with the current condition and
expected future condition if the proposed action or alternative were
not implemented (7 CFR 1b.5(c)(2)(i)). This is necessary to inform
aspects of the consideration of significance, as specified in 7 CFR
1b.2(f)(3).
States that subcomponents are to adhere to the statutory deadlines
and publish an EA ``in as substantially complete form as is possible.''
Requires responsible officials to certify that they made a good faith
effort to satisfy the requirements in the statute. Clarifies when
seeking an extension to the deadline is appropriate. These new
additions provide the Department's policy on how it will apply the new
statutory deadlines in 42 U.S.C. 4336a(g) and page limits in 42 U.S.C.
4336a(e). This policy is based on the rationale that NEPA is governed
by a ``rule of reason.'' Dept. of Transp. v. Pub. Citizen, 541 U.S. 752
(2004). In establishing deadlines for the environmental assessment
process in the 2023 revision of NEPA, Congress supplied the measure of
that reason in NEPA Sec. 107(g), 42 U.S.C. 4336a(g). ``Time and
resources are simply too limited for us to believe that Congress
intended'' consideration under NEPA to extend indefinitely. Metro.
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983)
(citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551
(1978)). Clarifies when it may be appropriate to publish a notice of
intent to prepare an EA. Provides direction on making the EA available
to the public.
7 CFR 1b.6--Finding of No Significant Impact: This section is added
to read as indicated in 7 CFR 1b.6.
Adds procedures for issuing findings of no significant impact.
Reinforces the role of a finding of no significant impact (FONSI).
Gives agencies flexibility on how to format the FONSI so long as
certain items are addressed. Provides direction on making the FONSI
available to the public, providing notifications, and timing of the
action.
7 CFR 1b.7--Environmental impact statements: This section is added
to read as indicated in 7 CFR 1b.7.
Adds procedures for issuing environmental impact statements.
Reinforces the role of an environmental impact statement (EIS).
Provides direction on lead agency responsibilities for publication of
the notice of intent, and scoping if conducted, including how to
address delays, pauses, or withdrawals regarding intent to prepare an
EIS.
Adds clarity on the process for requesting comments during
preparation of an EIS to align with statutory requirements in NEPA
(Sec. 102(2)(C), 42 U.S.C. 4332(2)(C); (NEPA Sec. 107(c), 42 U.S.C.
4336a(2)(C)).
Specifies that a request for comment may be undertaken at any time
that is reasonable in the process of preparing an EIS, as the
publication of a draft EIS is no longer required. NEPA (the Act itself)
does not require publication of a draft EIS, and filing a draft EIS
with the Environmental Protection Agency and publishing the notice of
availability in the Federal Register adds time and unnecessary process.
Responsible officials still have the discretion to publish a draft EIS
on a USDA website, along with any other pre-decisional materials that,
in their judgment, may assist in fulfilling their responsibilities
under NEPA and in facilitating the request for comments.
Reiterates that USDA subcomponents must ensure the process of
obtaining and addressing comments and the publication of draft or pre-
decisional materials must not cause the subcomponent to violate the
Congressionally mandated deadline for completion of an EIS. Specifies
that subcomponents shall consider comments and should address comments
raising substantive issues or recommendations. Focuses the subcomponent
on addressing comments by capturing the action the responsible official
took in response to the issue raised or recommendation made. Recommends
documentation of how comments were addressed should be included as an
appendix in the EIS.
[[Page 29638]]
Requires electronic publication of substantive comments and
provides an alternative course of action if USDA subcomponents do not
have the capability or capacity to electronically publish comments.
Specifies that USDA subcomponents shall consider substantive
comments but leaves discretion for addressing substantive comments in
writing. There is no requirement in NEPA to address comments in
writing; however, documentation of how comments were considered is
highly encouraged to demonstrate the rationale for how the responsible
official decides to proceed during the iterative development of the
proposed action and action alternatives and the iterative analysis
process. This documentation of how the responsible official proceeded
and why is advantageous to demonstrating that decisions made during the
iterative NEPA process are not arbitrary or capricious; however,
experience implementing the previous CEQ NEPA regulation requirement
for responding to comments has demonstrated this process led to
burdensome and time-consuming efforts that routinely prevented USDA
subcomponents from meeting the 2-year deadline for completing an EIS,
which is now mandated in NEPA Sec. 107(g)(1)(A), 42 U.S.C.
4336a(g)(1)(A). Additionally, the approach to ``response to comments''
that has been employed by some USDA subcomponents was not always the
most effective in that it did not focus on demonstrating the action the
responsible official took in response to the substantive issue raised
and/or recommendation made. In some cases, the ``response to comments''
documentation generated levels of paperwork that exceeded the page
count of the environmental document itself, defying one of the key
principles of NEPA to generate ``better decisions, not better
documents''. For this reason, this section also clarifies that if
documentation is completed to demonstrate how comments were considered
and addressed, the documentation should focus on capturing the actions
taken, as specified at 7 CFR 1b.7(f)(2), to facilitate a more efficient
and effective approach to demonstrating how the responsible official
responded to the substantive issue raised and/or recommendation made to
improve the decision made on how to proceed (for example, issues to be
analyzed in detail, alternatives to be considered or analyzed, or the
alternative selected for implementation).
Gives subcomponents flexibility on how to format the EIS so long as
certain items are addressed. Eliminates some aspects of EIS formatting
previously required in the CEQ NEPA Implementing Regulations, such as
the summary, table of contents, list of preparers, and index. These
sections also add additional time and process that do not meaningfully
inform decision-making and were more relevant when documents were
primarily issued in hard copy instead of electronically.
Reiterates deadline and page limit requirements from NEPA, as
amended in 2023. Specifies the requirement to file the EIS with the
Environmental Protection Agency is still the primary means for making
the completed EIS available to the public, in addition to publishing
the EIS on a USDA website. States that agency officials are to adhere
to the statutory deadlines and publish an EIS ``in as substantially
complete form as is possible'' and requires responsible officials to
certify that they made a good faith effort to satisfy the requirements
in the statute. Clarifies when seeking an extension to the deadline is
appropriate. These new additions provide the Department's policy on how
it will apply the new statutory deadlines in NEPA Sec. 107(g), 42
U.S.C. 4336a(g) and page limits in NEPA Sec. 107(e), 42 U.S.C.
4336a(e). This policy is based on the rationale that NEPA is governed
by a ``rule of reason.'' Dept. of Transp. v. Pub. Citizen, 541 U.S. 752
(2004). In establishing deadlines for the environmental impact
statement process in the 2023 revision of NEPA, Congress supplied the
measure of that reason in NEPA Sec. 107(g), 42 U.S.C. 4336a(g). ``Time
and resources are simply too limited for us to believe that Congress
intended'' consideration under NEPA to extend indefinitely. Metro.
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983)
(citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551
(1978)).
7 CFR 1b.8--Records of decision: This section is added to read as
indicated in 7 CFR 1b.8.
Adds procedures for issuing records of decision. Gives
subcomponents flexibility on how to format the record of decision (ROD)
so long as certain items are addressed. Specifies requirements to make
the ROD available to the public and provide notification to certain
parties.
Clarifies timing of action. Notwithstanding other statutory or
regulatory requirements, there is no longer a requirement to delay
implementation of the action once the Environmental Protection Agency
has published the notice of availability for the EIS, the ROD has been
made available to the public, and necessary notifications are provided.
7 CFR 1b.9--Efficient and effective environmental reviews: This
section is added to read as indicated in 7 CFR 1b.9.
Adds best practices for efficient and effective environmental
reviews.
Provides best practices for managing the proposal record. Includes
recommendations for assembling and managing documentation developed
during the environmental review process, responding to Freedom of
Information Act requests, managing potential withholdings and
privileges, and managing classified information.
Outlines best practices for reducing paperwork. For clarity, USDA
has revised its usage of the terms ``tiering'' and ``adopting,'' which
were described in the now rescinded CEQ NEPA Implementing Regulations.
The term ``rely'' or ``relying'' is used (instead of adopting) as this
is the term used in NEPA when referring to programmatic documents (NEPA
Sec. 108; 42 U.S.C. 4336b) and expands the original concept of
``adopting'' (now relying) to include not only whole environmental
documents but also portions thereof, to include supporting analysis
that may not be included in an environmental, finding, or decision
document in whole. To avoid confusion with NEPA Sec. 109, the term
``adopting'' is only used in reference to adopting another Federal
agency's categorical exclusions (the subject of NEPA Sec. 109) and is
no longer used in the context of adopting analyses. Additional
clarification is provided regarding reliance on programmatic documents,
to align with language added to NEPA, as amended in 2023. The terms
``incorporating'' or ``incorporating by reference'' continue to apply
and are included in the regulations.
Outlines best practices for reducing delay.
Emphasizes the importance of interdisciplinary preparation,
methodology, scientific accuracy, and disclosing information
availability.
Public involvement discussions are reduced to the most pertinent
points that encourage USDA subcomponents to consider the most effective
ways of engaging and informing the public, while allowing necessary
discretion on the methods to use given the nature of the proposal and
the public entities most likely to be interested or affected.
Emphasizes the need to eliminate duplication with State, Tribal,
and local procedures, outlines process for identifying lead, joint, and
cooperating agencies, promotes timely and unified Federal reviews, and
provides process
[[Page 29639]]
for resolving disagreements concerning major Federal actions.
Adds additional clarification on how USDA agencies should proceed
with unified documentation, as required by NEPA, where another Federal
agency is the lead agency. Specifies the agency official at USDA who
will determine when a disagreement needs to be elevated to CEQ when
there are interagency disagreements concerning the designation of a
lead or joint agency or disagreements over proposed major Federal
actions that might cause unsatisfactory environmental effects.
Outlines recommended approaches for preparing environmental
assessments and environmental impact statements for programmatic
actions and provides direction for relying on and reevaluating
programmatic (and non-programmatic) documents.
Outlines approaches for evaluating proposals for rules,
regulations, and legislation.
Specifies need to apply unique identification numbers to
environmental assessments and environmental impact statements.
Adds direction on how to proceed for emergencies, with a
distinction provided between ``immediate actions'' and ``urgent but not
immediate actions''. Some emergency authorization or emergency
procedure language previously included in agency-specific NEPA
regulations has been moved to this section in 7 CFR 1b, with much of
the language being revised, as described in the agency-specific
regulation changes included below. Where language and procedures were
essentially the same across agencies, these procedures are now
discussed only once. Where procedures differed necessarily across
agencies, these different procedures are included. Specifics as to some
wording changes that were made for agency-specific procedures are
discussed under the applicable agency-specific regulation, listed
below. Adds a general emergency action provision for agencies that did
not have such provisions in their regulations to coordinate on issuing
alternative arrangements for complying with NEPA when completing a
categorical exclusion or environmental assessment when significant
effects are not anticipated.
7 CFR 1b.10--Documents prepared by applicant or third party: This
section is added to read as indicated in 7 CFR 1b.10.
Adds procedures for environmental assessments and environmental
impact statements prepared by an applicant or third party. Specifies
responsibilities of USDA subcomponents when documentation is being
prepared by an applicant or third party. Recognizes that NEPA Sec.
107(f), 42 U.S.C. 4336a(f), allows an applicant or other third party
(e.g., contractor) to complete an environmental assessment or
environmental impact statement in whole or in part, under supervision
of a Federal agency. For purposes of the USDA NEPA regulations,
applicant or other third-party preparation is expanded to include, in
whole or in part, documentation for a finding of applicability and no
extraordinary circumstance for categorical exclusions requiring NEPA
documentation. This is to account for the various ways USDA
subcomponents currently work with applicants and third parties to
complete documentation associated with a proposal, which includes more
than just the preparation of environmental assessments and
environmental impact statements. Applicants often complete
documentation for actions that fit categorical exclusions requiring
NEPA documentation.
7 CFR 1b.11--Definitions and Acronyms: This section is added to
read as indicated in 7 CFR 1b.11.
Adds cross-references to key definitions from NEPA and carries over
some definitions from the 2020 CEQ NEPA Implementation Regulations,
with modifications made for some definitions such as: mitigation (or
mitigation measure) and significance.
``Mitigation'' (7 CFR 1b.11(a)(29)) was edited to clarify
mitigations are determined by the responsible official and are a
reactive response to the effects analysis and are documented in the
finding of no significant impact or record of decision. See further
discussion below on adding the term ``design criteria'' to the
definition section.
``Significance'' (7 CFR 1b.11(a)(50)) is defined as explained under
the changes made to section 7 CFR 1b.2.
Adds definitions for new terms introduced in the regulations, such
as: design criteria (or design elements or design features), emergency,
environmental review, extraordinary circumstances, finding of
applicability and no extraordinary circumstance, issue, level of NEPA,
NEPA process, notice of availability, proposal record, proposed action,
purpose and need, scale, scope, senior agency official, and
substantive.
The definition for ``design criteria'' (7 CFR 1b.11(a)(11)) is
added to demonstrate that when these criteria are added to proposed
actions or alternatives to achieve similar outcomes of ``mitigations''
(7 CFR 1b.11(a)(29)), they are added in response to an issue and
therefore once the issue has been addressed in this manner it is not an
issue that needs to be analyzed in detail. Design criteria are
proactive responses to issues identified early in the interdisciplinary
process of developing the proposed action and/or action alternatives or
when conducting preliminary effects analysis, whereas adding
``mitigations'' (or ``mitigation measures'') is a reactive response by
the responsible official to the effects analysis. The definition
clarifies that these two terms achieve similar outcomes (for example,
avoid or minimize adverse effects), yet apply in distinctly different
ways, and also facilitate analytic analysis.
The definition of ``emergency'' (7 CFR 1b.11(a)(13)) is added as
this term was used in some of the USDA agency-specific NEPA regulations
for emergency action provisions and the concept is carried forward into
the USDA NEPA regulations for ``immediate actions'' and ``urgent but
not immediate actions'' (7 CFR 1b.9(v) and (w)).
The definition of ``extraordinary circumstances'' (7 CFR
1b.11(a)(17)) is a concept carried forward from the now rescinded CEQ
NEPA regulations and is defined in the USDA NEPA regulations. Some USDA
agency-specific NEPA regulations included a definition of extraordinary
circumstances, while others did not. While these former definitions
served to inform the new definition, none of the previous definitions
were used in their entirety. The definition included in the USDA NEPA
regulations clarifies that an extraordinary circumstance is a unique
situation that exists in which actions that normally do not have
significant impacts--and are therefore categorically excluded from
documentation in an environmental assessment or environmental impact
statement--create uncertainty whether the degree of the effect is
significant. The CEQ NEPA regulations and some USDA agency-specific
NEPA regulations defined or discussed extraordinary circumstances in a
way that created confusion as to when an extraordinary circumstance
existed. Some interpreted an extraordinary circumstance to be present
when a resource considered for extraordinary circumstances, such as
federally listed threatened or endangered species or wetlands, was
present. It is not the mere presence of a resource that means an
extraordinary circumstance exists, but rather the cause-effect
relationship between the proposed actions and the resource considered.
An extraordinary circumstance exists only when there is reasonable
uncertainty about whether
[[Page 29640]]
the degree of the impact is significant for the resource being
considered.
The definition of ``finding of applicability and no extraordinary
circumstance'' (7 CFR 1b.11(a)(19)) is added, as the USDA NEPA
regulations clarify that the use of a categorical exclusion is
dependent on determinations that a category (or categories) applies to
the proposed actions and no extraordinary circumstance exists.
The definition of ``issue'' (7 CFR 1b.11(a)(23)) is added to
promote analytic analysis that is focused on cause-effect relationships
between the actions proposed (cause) and the reasonably foreseeable
impacts (effect) on resources found in the affected environment. The
purpose of considering issues is to identify opportunities to modify
the proposed action, develop an action alternative, or supplement,
improve, or modify the analysis to better understand the effects.
The definitions of ``level of NEPA'' and ``NEPA process'' (7 CFR
1b.11(a)(27) and (30)) are added as these terms are used in the
regulations in several instances to refer to the different levels of
NEPA or process to be completed, those being categorical exclusion,
environmental assessment, or environmental impact statement. This also
helps clarify that using a categorical exclusion is a NEPA process, as
some entities in the past have erroneously alleged that an agency's use
of a categorical exclusion is ``circumventing NEPA''.
The definition of ``proposal record'' (or ``project record'') (7
CFR 1b.11(a)(38)) is added to standardize this term and concept for
USDA as it is a key piece of the NEPA and integrated environmental
review processes that can be overlooked. A well-organized and complete
proposal record also can facilitate paperwork reduction.
The definition of ``proposed action'' (7 CFR 1b.11(a)(39)) is added
to differentiate this from a proposal. ``Proposal'' is defined by NEPA
as ``a proposed action at a stage when an agency has a goal, is
actively preparing to make a decision on one or more alternative means
of accomplishing that goal, and can meaningfully evaluate its
effects''. The definition of proposed action takes this a step further
to indicate this includes ``design criteria'' (where these apply) and
that this is the version submitted for final interdisciplinary review
and effects analysis. Defining a proposed action also can help
responsible officials better determine when timelines start for
environmental assessments and environmental impact statements to track
and meet the deadlines now established in NEPA.
The definition of ``purpose and need'' (7 CFR 1b.11(a)(41)) is
added as this is a term used in NEPA (the Act itself) but not defined.
The definition clarifies the purpose and need explains the ``why here,
why now'' rationale for proposing an action, and that this also can
incorporate the goals of an applicant (when applicable) and the
subcomponent's statutory duty to review an application for
authorization.
The definitions of ``scale'' and ``scope'' (7 CFR 1b.11(a)(47) and
(48)) are added as these terms are used in the USDA NEPA regulations
when referring to the scale and scope of actions proposed and issues
considered for analysis.
The definition of ``substantive'' (7 CFR 1b.11(a)(53)) is added to
promote analytic analysis that focuses on information that meaningfully
informs the consideration of reasonably foreseeable impacts on the
human environment and the resulting significance determination or
decisions on how to proceed. Not all issues need the same level of
attention and analysis. Rather, it is substantive issues that should be
the focus when conducting effects analysis and making iterative and
final decisions on how to design, analyze, and implement an action.
Adds a list of acronyms (7 CFR 1b.11(b)) that may appear throughout
7 CFR 1b or that may be used when applying 7 CFR 1b during the
applicable NEPA process.
7 CFR 1b.12--Severability: This section is added to read as
indicated in 7 CFR 1b.12.
Adds a severability clause that clarifies that the sections of the
USDA NEPA Implementing Regulations are separate and severable from one
another and describes how other sections or portions may remain valid
if another section or portion is stayed or determined to be invalid.
3. Agricultural Research Service Procedures for Implementing NEPA
(Previously at 7 CFR 520)
The Agriculture Research Service (ARS) NEPA regulations are
rescinded in full except for the following sections that have been
consolidated in the 7 CFR 1b regulations: 7 CFR 520.5(b)(2)(i) and
(iii).
--7 CFR 520.5(b)(2)(i) and (iii) were moved to examples of activities
under one of the categorical exclusions previously codified at 7 CFR
1b.3 (department-wide CEs previously under section 1b.3 are now moved
to section 1b.4). (now 7 CFR 1b.4(c)(3)(iv) and (v))
4. Animal and Plant Health Inspection Service NEPA Implementing
Procedures (Previously at 7 CFR 372)
The Animal and Plant Health Inspection Service's (APHIS) NEPA
Implementing Procedures at 7 CFR part 372 are rescinded in full except
for the following sections that have been moved to 7 CFR part 1b: 7 CFR
372.5(c)(1) through (3) and 7 CFR 372.5(c)(5) (any previously reserved
sections are removed as new numbering is applied under 7 CFR 1b); and 7
CFR 372.10(b). Previously codified APHIS categorical exclusions are now
found at 7 CFR 1b.4(c)(08) through (11).
Minor changes were made to former 7 CFR 372.5(c)(1) through (3) and
7 CFR 372.5(c)(5) as follows when they were moved over to 7 CFR 1b:
--372.5(c)(1)(i): some terms were removed from this paragraph and added
them to examples of activities under department-wide CEs previously
codified at 7 CFR 1b.3 (department-wide CEs previously under Sec. 1b.3
are now moved to Sec. 1b.4). The example now reads as:
``Identifications, inspections, surveys, sampling, testing, and
monitoring that does not cause physical alteration of the
environment.'' (now 7 CFR 1b.4(c)(3)(i))
--372.5(c)(1)(ii): revised ``Examples of routine measures include'' to
now read as ``Examples of routine measures include but are not limited
to''. (now 7 CFR 1b.4(c)(8)(ii))
--372.5(c)(2)(i)(B) and (D) were moved to examples of activities under
one of the categorical exclusions previously codified at 7 CFR 1b.3
(department-wide CEs previously under Sec. 1b.3 are now moved to Sec.
1b.4). (now 7 CFR 1b.4(c)(3)(ii) and (iii))
--372.5(c)(2)(i) and 372.5(c)(5): revised ``Examples are'' to now read
as ``Examples include but are not limited to''. (now 7 CFR 1b.4(c)(9)
and (11))
--372.5(c)(3)(ii) and (iii): modified by removing erroneous ``or'' in
(ii) and removing erroneous ``and'' in (iii) and replacing it with
``or''. (now 7 CFR 1b.4(c)(10))
Former section 372.10(b) had more extensive changes when it was
moved to 7 CFR 1b.9(w)(1)(i). It was revised as follows:
--Eliminates language regarding environmental assessments as this
discussion is now covered for all USDA agencies; uses more generalized
language about who can approve alternative arrangements for emergency
actions not anticipated to have a reasonably foreseeable significant
effect given the ongoing
[[Page 29641]]
organizational restructuring at USDA that could affect office names or
staff position titles; and, eliminates the requirement to document and
report to CEQ the alternative arrangements approved at the agency
level. (USDA agencies will continue to coordinate with CEQ on
alternative arrangements for those activities anticipated to have
reasonably foreseeable significant effects.)
5. Farm Service Agency General Implementing Regulations for NEPA
(Previously at 7 CFR 799)
The Farm Service Agency (FSA) NEPA regulations are rescinded in
full except for the following sections that have been moved to the 7
CFR 1b regulations: 7 CFR 799.12(b), 7 CFR 799.31(b)(1)(2) and (4)
through (6), 7 CFR 799.32(d)(1)(2) and (3), 7 CFR 799.32(e)(1)(2) and
(3). Previously codified FSA categorical exclusions are now found at 7
CFR 1b.4(c)(12) through (16) and (30) and (d)(1) and (2).
7 CFR 799.12(b) was moved to 7 CFR 1b.9(v) and (w) but is
incorporated into the overall Department guidance for Emergencies, with
one paragraph 1b.9(w)(1)(ii) clarifying how the FSA should coordinate
alternative arrangements for urgent actions not anticipated to have
reasonably foreseeable significant effects.
Categorical Exclusions (CEs) moved to 7 CFR 1b.4(c) (CEs not
requiring documentation under NEPA) because they are historically low
impact actions:
--7 CFR part 799.31(b)(1) Loan Actions (combined with other ``Loan
Actions'' categories under one category at 7 CFR 1b.4(c)(30))
--7 CFR part 799.31(b)(2) Repair, improvement, or minor modification
actions (now 7 CFR 1b.4(c)(13))
--7 CFR part 799.31(b)(3) Administrative actions are deleted as a
category and added as examples under one of the categorical exclusions
previously codified at 7 CFR 1b.3. (now 7 CFR 1b.4(c)(1)(i) through
(iii))
--7 CFR part 799.31(b)(4) Planting actions. (now 7 CFR 1b.4(c)(14))
--7 CFR part 799.31(b)(5) Management actions. (now 7 CFR 1b.4(c)(15))
--7 CFR part 799.31(b)(6) Other FSA actions (now labeled
``Miscellaneous FSA Actions''). 799.31(b)(6)(vi) is revised to read as:
Safety net programs without ground disturbance. ``Without ground
disturbance'' was added as a clarifier, as the sentence providing this
clarification is not moved to 7 CFR 1b. 7CFR 799.31(b)(6)(x) is removed
because the adoption provision is no longer needed here. (now 7 CFR
1b.4(c)(16))
--7 CFR 799.32(d)(1) Loan Actions (combined with other ``Loan Actions''
categories under one category at 7 CFR 1b.4(c)(30))
--7 CFR 799.32(d)(2) Minor management, construction, or repair actions
(now 7 CFR 1b.4(c)(12))
--7 CFR 799.32(d)(3) Other FSA actions (combined in list with
categories labeled ``Miscellaneous FSA Actions'') (now 7 CFR
1b.4(c)(16))
--799.32(d)(3)(iv): Removed as it is duplicative to another category
already included in the now combined ``Miscellaneous FSA Actions'' list
and the phrase ``(this proposed action, in particular, has the
potential to cause effects to historic properties and therefore
requires analysis under section 106 of NHPA (54 U.S.C. 306108), as well
as under the ESA and wetland protection requirements)'' is not
necessary as the determination for when compliance with NHPA (National
Historic Preservation Act) and ESA (Endangered Species Act) is needed
is appropriately done on a case-by-case or programmatic basis and is
not appropriate to include in NEPA regulations.
--7 CFR 799.32(e)(1) Loan Actions (combined with other ``Loan Actions''
categories under one category at 7 CFR 1b.4(c)(30))
CEs moved to 7 CFR 1b (CEs requiring documentation under NEPA):
--7 CFR 799.32(e)(2) Construction or ground disturbance actions (now 7
CFR 1b.4(d)(1))
--7 CFR 799.32(e)(3) Management and planting type actions (now 7 CFR
1b.4(d)(2))
FSA is applying the definition of major Federal action, as
established in the Fiscal Responsibility Act of 2023 (Pub. L. 118-5),
which also amended NEPA. The agency has determined that several types
of loan actions fall within one or more of the exclusions in the
definition of major Federal actions and will be treating them as such;
however, it's possible not all types of loans fall within the
exclusions. For this reason, FSA is retaining the existing categories
titled ``Loan Actions''. FSA will continue to make case-by-case or
programmatic determinations as to whether certain loans and potentially
other programs or actions meet the statutory definition of major
Federal action. Justifications for these and any other programmatic
determinations will be made in agency-issued guidance.
6. National Institute of Food and Agriculture Implementation of NEPA
Regulations (Previously at 7 CFR 3407)
The National Institute of Food and Agriculture (NIFA) regulations
are rescinded in full except for the following sections that have been
moved to the 7 CFR 1b regulations: 7 CFR 3407.6(a)(2)(i)(A) and (C).
--7 CFR 3407.6(a)(2)(i)(A) and (C) were moved to examples of activities
under one of the categorical exclusions previously codified at 7 CFR
1b.3 (department-wide CEs previously under Sec. 1b.3 are now moved to
Sec. 1b.4). (now 7 CFR 1b.4(c)(3)(iv) and (v))
7. Natural Resources Conservation Service Compliance With NEPA
Regulations (Previously at 7 CFR 650)
The Natural Resources Conservation Service (NRCS) regulations are
rescinded in full except for the following sections that have been
consolidated in the 7 CFR 1b regulations: 7 CFR 650.6(a) and (d)(1)
through (21). Previously codified NRCS categorical exclusions are now
found at 7 CFR 1b.4(d)(3) through (23).
Minor changes were made to the categorical exclusion sections as
follows when they were moved over to 7 CFR 1b:
--7 CFR 650.6(a): This section was moved to examples of activities
under one of the categorical exclusions previously codified at 7 CFR
1b.3. (now 7 CFR 1b.4(c)(3)(vi) through (x))
--7 CFR 650.6(d)(14): Revised as follows. In the phrase ``Work will be
confined to the existing footprint of the dam . . .'', ``existing'' is
replaced with ``construction'' to now read as ``Work will be confined
to the construction footprint of the dam''. (now 7 CFR 1b.4(d)(16))
--7 CFR 650.6(d)(15): Revised as follows. In the phrase ``Work will be
confined to the dam or abutment areas . . .'', the language
``construction footprint of the'' was inserted, to now read as ``Work
will be confined to the construction footprint of the dam or abutment
areas . . .'' (now 7 CFR 1b.4(d)(17))
--7 CFR 650.6(d)(16): Revised as follows. In the phrase ``Repairing
embankment slope failures on structures . . .'', the language ``or
reshaping the embankment'' was inserted to now read as ``Repairing
embankment slope failures on structures or reshaping the embankment. .
. .'' (now 7 CFR 1b.4(d)(18))
--7 CFR 650.6(d)(17): Revised as follows. In the phrase ``Work will be
[[Page 29642]]
confined to the existing dam and abutment areas . . .'', ``existing''
is replaced with ``construction footprint of'' to now read as ``Work
will be confined to the construction footprint of the dam and abutment
areas. . . .'' (now 7 CFR 1b.4(d)(19))
These CEs focus on routine actions for the repair or updating of
existing structures constructed under the Watershed Protection and
Flood Prevention Act, Public Law 83-566, or the Flood Control Act,
Public Law 78-534. The purpose of rehabilitation projects is to comply
with current State safety standards and Federal performance standards,
as well as the protection of environmental values associated with the
project's structures.
Upon review of the substantiation records associated with the
development of these CEs and the NRCS staff's professional knowledge
and experience, NRCS determined it needed additional clarity to better
define the appropriate scope of these CEs. The term ``existing,'' in
reference to the dam structure, leads to an overly restrictive
interpretation that does not meet standard maintenance procedures
associated with rehabilitation actions, thus unintentionally
restricting the scope and application of the CEs. NRCS completed an
analysis of 51 recent site-specific dam rehabilitation EAs, all
resulting in a finding of no significant impact. NRCS concluded that 34
of these projects could have been categorically excluded because the
proposed action was limited to the dam construction footprint, which
was previously disturbed during construction. The remaining 17 project-
specific EAs did not meet the CE criteria because the rehabilitation
construction footprint exceeded the original dam construction footprint
or involved other actions outside the scope of the CE. These CEs are
limited to developed areas, so this modification is not expected to
create any new development. Therefore, NRCS determined that when
applying these CEs, clarifying the parameters to account for the
previously disturbed areas surrounding the finished dam, abutment, or
dam slope does not typically result in a significant impact on the
human environment and, therefore, justifies changes to the CEs.
The minor modifications reflect an effort by NRCS to provide
further clarity and provide transparency regarding the activities,
including the associated workspace, covered by the CEs. For actions
under these categorical exclusions, NRCS personnel will continue to
evaluate proposed actions for potential impacts and extraordinary
circumstances, including responsibility of the agency to comply with
the National Historic Preservation Act and the Endangered Species Act.
Additionally, NRCS considered whether 7 CFR 650.6(c)(3) needed to
be retained in the 7 CFR 1b as this section outlined conditions that
must be met before using the categorical exclusions listed at Sec.
650.6(d). Section 650.6(c)(3)(i) through (iii) do not warrant separate
inclusion on the list because each of these is already addressed by the
NRCS conservation practice standards and planning policies, which set
forth minimum criteria and technical requirements for conservation
projects nationwide. These standards are regularly updated through a
rigorous national review process and require that all conservation
practices be designed to mitigate soil erosion, sedimentation, and
downstream flooding. Likewise, the standards mandate that disturbed
areas be vegetated with adapted, non-invasive, and non-noxious species
to ensure ecological compatibility and long-term site stability.
Furthermore, NRCS standards and technical guides are built upon current
industry standard engineering principles of natural stream dynamics and
processes and are subject to ongoing review to reflect advances in
resource management and restoration science.
Additionally, Sec. 650.6(c)(3)(iv), ``incorporate the applicable
NRCS conservation practice standards as found in the Field Office
Technical Guide,'' is already built into NRCS planning procedures.
These procedures specifically require an evaluation of alternative
methods to meet conservation objectives and minimize negative impacts
on the environment.
Lastly, Sec. 650.6(c)(3)(v) (``Not require substantial dredging,
excavation, or placement of fill''); and (vi) (``Not involve a
significant risk of exposure to toxic or hazardous substances'') are
already evaluated as part of the agency's Determination of Significance
or Extraordinary Circumstances, which must be considered by the
agency's Responsible Federal Official as part of the environmental
review analysis.
NRCS has found that including these conditions as sideboards to
applying the categorical exclusions is redundant and could create
unnecessary regulatory overlap, as the NRCS Field Office Technical
Guide and national standards already require adherence to these
criteria as a prerequisite for all conservation planning, design, and
implementation efforts. Recent coordination with another Federal agency
adopting some of NRCS' categorical exclusions reached the same
conclusion as other Federal agencies have similar agency-specific
conservation or best management practices as those outlined by NRCS.
8. Rural Development Environmental Policies and Procedures (Previously
at 7 CFR 1970)
The Rural Development regulations are rescinded in full except for
the following sections that have been moved to the 7 CFR 1b
regulations: 7 CFR 1970.11(b); 7 CFR 1970.18(b); 1970.53(a)(7), (c)(1)
through (c)(7) and (c)(9), (d)(2) through (11), (e), (f), and (g);
1970.54(a) through (c). Previously codified Rural Development
categorical exclusions are now found at 7 CFR 1b.4(c)(17) and (18) and
(d)(24) and (25).
Through this interim final rule, Rural Development is rescinding
the process by which it determined which actions require environmental
review as previously codified at 7 CFR 1970.8(c) and implementing the
definition of major Federal action as established in the Fiscal
Responsibility Act of 2023 (Pub. L. 118-5), which also amended NEPA.
The agency has determined that several types of actions fall within one
or more of the exclusions in the definition of major Federal action,
and will be treating them as such. Rural Development will make case-by-
case or programmatic determinations of which programs or actions do not
meet the statutory definition of major Federal action. Justifications
of programmatic determinations will be made in agency-issued guidance.
Due to these changes, Rural Development is removing several CEs for
actions that the agency has determined do not meet the definition of
major Federal action under NEPA and, therefore, do not require NEPA
analysis. As such, actions previously codified at 7 CFR 1970.53(a)(1)
through (a)(6), (b)(1) through (b)(3), (c)(8), (c)(9), (d)(1), and (f)
through (h); and 1970.55 are being removed.
7 CFR 1970.11(b) is moved to 7 CFR 1b.2(h)(3) verbatim except for
the addition of the following phrase at the beginning of the section to
indicate it applies to the Rural Development mission area: ``When
agencies under the Rural Development mission area are obligating
funds''.
7 CFR 1970.18(b) is revised and moved to 7 CFR 1b.9(w)(1)(iii) to
align with the overarching Department guidance for Emergencies. Adds
clarification for how to coordinate to get alternative arrangements
approved for emergency actions not anticipated to have a reasonably
foreseeable significant effect.
[[Page 29643]]
7 CFR 1970.53(d)(4) is revised to change the phrase ``Includes pole
replacements but does not include overhead-to-underground conversions''
to now read as ``Includes pole replacements and overhead-to-underground
conversions''. (Now 7 CFR 1b.4(c)(18)(x).) The equipment used in
overhead-to-underground is the same equipment used to install
telecommunication fiber, which is covered by other agency categorical
exclusions (for example, 7 CFR 1970.53(d)(1) and (2) for both aerial
and buried fiber cable within existing rights-of-way). The action of
installing underground electric is normally does not have a significant
effect on the environment when performed in an existing previously
disturbed utility right-of-way. Pole replacements and overhead-to-
underground conversions are not significant construction activities
with the potential to cause significant effects on the environment when
constructed within a previously disturbed right-of-way and do not
always require environmental documentation, provided that the
activities are reviewed to rule out extraordinary circumstances. This
revises the previous codification at 7 CFR 1970.53(d)(4), which
required an environmental report. Since 2016, the agency has reviewed
numerous projects of this type (overhead-to-underground conversion) as
a categorical exclusion without significant impact on the environment
and therefore has determined they were improperly excluded in previous
rulemaking [March 2, 2016, 81 FR 11032].
7 CFR 1970.54(b)(2)(i) is revised to change the phrase ``Within one
mile of currently served areas irrespective of the percent of increase
in new capacity'' to now read as ``Within 20 miles of currently served
areas irrespective of the percent of increase in new capacity''. (Now 7
CFR 1b.4(d)(24)(ii)(B).) The change from one (1) mile to twenty (20)
miles is based on the review and analysis of environmental assessments
issued by the agency, as well as other Federal agency categorical
exclusions. In addition, the removal of small-scale corridor
development that increased capacity by more than 30 percent of the
existing user population as a threshold requiring an environmental
assessment, as previously codified at 7 CFR 1970.54(b)(2)(ii), is based
on the review and analysis of environmental assessments issued by the
agency, which documents that making the modifications will not normally
result in significant effects on the environment. Rural Development has
the administrative record of applying 7 CFR1970.53(b)(2) since the
promulgation of 7 CFR 1970 and has found no instances where the review
was elevated to an environmental assessment due to extraordinary
circumstances. Further, the agency has reviewed records for over 100
environmental assessments completed for projects that proposed
expansion of the distribution or collection system past one mile of the
currently served areas or otherwise increased the capacity by more than
30 percent of the existing user population and found all of these to
have concluded in a finding of no significant impact on the
environment. As none of these projects has documented a significant
impact on the environment, the agency is removing the population
threshold.
7 CFR 1970.54(a)(4) is revised to remove the last sentence in the
following: ``Infrastructure to support utility systems such as water or
wastewater facilities; headquarters, maintenance, equipment storage, or
microwave facilities; and energy management systems. This does not
include proposals that either create a new or relocate an existing
discharge to or a withdrawal from surface or ground waters, or cause
substantial increase in a withdrawal or discharge at an existing
site.'' (Now 7 CFR 1b.4(d)(24)(i)(D).) The agency has reviewed more
than 300 environmental assessments for the activities described in the
last sentence and found all of these to have concluded in a finding of
no significant impact on the environment. Therefore, the agency has
determined these activities do not normally result in a reasonably
foreseeable significant effect and it is now appropriate for these
actions to occur as part of using this category.
9. U.S. Forest Service NEPA Compliance Regulations (Previously at 36
CFR 220)
The U.S. Forest Service regulations are rescinded in full except
for the following sections that are moved to the 7 CFR 1b regulations:
36 CFR 220.6(d)(1) through (12) and (e)(1) through (25) (any previously
reserved sections are removed); and 220.4(b)(2). Previously codified
Forest Service categorical exclusions are now found at 7 CFR
1b.4(c)(19) through (29) and (d)(26) through (47).
Minor changes were made to the categorical exclusion sections, 36
CFR 220.6(d) and (e), as follows when they were moved over to 7 CFR
1b.4(c) and (d): Generalized the requirement, or lack thereof, for
documentation for categorical exclusions. The categorical exclusions
requiring documentation did not change. Where the discussion of
documentation used Forest Service-specific terminology (for example,
decision memo), this terminology has been removed, and the 7 CFR 1b
regulations just state that documentation is required. This aligns with
the 7 CFR 1b regulations, which establish consistent categorical
exclusion documentation requirements for all USDA agencies.
36 CFR 220.6(e)(9) In the phrase, ``Implementation or modification
of minor management practices to improve allotment condition or animal
distribution when an allotment management plan is not yet in place'',
the following language was removed: ``when an allotment management plan
is not yet in place''. (Now 7 CFR 1b.4(d)(33).) An allotment management
plan (AMP) is a document that specifies how the components of the
program action will be implemented to reach a given set of objectives.
An AMP is prepared in consultation with the permittee(s) associated
with the allotment, and it prescribes the manner and extent to which
livestock operations will be conducted; describes the type, location,
and construction specifications for rangeland improvements; and
contains such other provisions relating to livestock grazing on the
associated allotment (see 36 CFR 222.1(b)). AMPs are created after a
unit's land management plan and a site-specific grazing decision, both
of which undergo their own NEPA analysis. An AMP is the outcome of the
grazing decision process. The presence or absence of an AMP does not
change the on-the-ground effects of a rangeland improvement because
AMPs do not override land management plans or grazing decisions. As
such, the revision of language in the categorical exclusion is a minor
change and technical in nature and does not modify the way rangeland
improvements are designed or implemented, nor what is authorized in the
land management plan or the grazing decision. Currently, most Forest
Service grazing allotments have AMPs in place, making this CE
unavailable to them. The proposed minor wording change will allow
Federal agencies to efficiently maintain or improve rangeland
conditions and animal distribution by eliminating a restriction based
on paperwork requirements rather than indicators of whether the action
may have significant effects, as was considered when initially
establishing the category.
36 CFR 220.6(e)(16) was revised to clarify that the land management
plan approval document required by 36 CFR part 219 satisfies the
documentation
[[Page 29644]]
requirement for this categorical exclusion. (Now 7 CFR 1b.4(d)(38).) In
the phrase, ``. . . are outside the scope of this category and shall be
considered separately under Forest Service NEPA procedures,'' ``Forest
Service'' was replaced with ``USDA'' to now read as, ``. . . are
outside the scope of this category and shall be considered separately
under USDA NEPA procedures.'' An update to recordkeeping procedures
does not change the significance determination made when establishing
this CE.
36 CFR 220.4(b)(2) was revised as follows when moved to 7 CFR
1b.9(w)(1)(iv): eliminates language regarding categorical exclusions,
environmental assessments, and findings of no significant impact as
this discussion is now covered for all USDA agencies; and, uses more
generalized language about the process for approving alternative
arrangements for emergency actions not anticipated to have reasonably
foreseeable significant effects given the ongoing organizational
restructuring at USDA that could affect office names and staff position
titles.
The Forest Service recognizes that the rescission of the 36 CFR 220
regulations has implications on the 36 CFR 218 regulation for the
project-level pre-decisional administrative review process. Until the
36 CFR 218 regulation is revised to align with 7 CFR 1b, the Forest
Service will continue to apply 36 CFR 218 as currently required. While
the 7 CFR 1b regulations do not include a ``decision notice'' for
environmental assessments, the revised regulations do clarify at 7 CFR
1b.6(c) that, ``If a statute or regulation explicitly requires a
decision document to approve actions analyzed in an environmental
assessment, the finding of no significant impact can be retitled to
indicate its function as a decision document''. This is to account for
continued application of the 36 CFR 218 regulations for environmental
assessments that required issuance of a decision notice under the 36
CFR 220 regulations (Sec. 220.7(c)).
C. Transition Period for USDA NEPA Regulations
The Department intends to provide USDA subcomponents with
discretion to determine which NEPA procedures to apply to individual
proposals, given the widely varying circumstances and stages of pending
NEPA analyses. To ensure an orderly transition without undue impact on
the USDA mission, USDA subcomponents have discretion to continue using
the versions of USDA and agency-specific NEPA regulations in place
before publication of this interim final rule, as well as the 2020
version of the CEQ NEPA regulations, where it makes sense for proposals
that are at a certain stage in the applicable NEPA process (categorical
exclusion, environmental assessment, or environmental impact
statement). To the extent any of these prior regulations conflict with
the statute, as amended by the Fiscal Responsibility Act in 2023 or the
U.S. Supreme Court decision in Seven County Infrastructure Coalition v.
Eagle County, Colorado, 145 S. Ct. 1497 (2025), the statute governs.
USDA subcomponents also have the discretion to begin applying the USDA
NEPA regulations, as revised, effective immediately upon publication of
this interim final rule where it makes sense to do so for new proposals
and applications, or for existing proposals or applications that are in
the early stages of the applicable NEPA process and can easily
transition to using the revised USDA NEPA regulations. Upon the
effective date of a final rule, USDA subcomponents will be expected to
apply the revised 7 CFR 1b when initiating proposals and accepting new
applications. The final rule will contain additional transition
language.
III. Request for Comments
A. Notice-and-Comment Rulemaking Is Not Required
USDA is revising its prior procedures and practices for
implementing NEPA, a ``purely procedural statute'' which ``simply
prescribes the necessary process for an agency's environmental review
of a project''--a review that is, even in its most rigorous form,
``only one input into an agency's decision and does not itself require
any particular substantive outcome.'' Seven County, 145 S. Ct., at
1510-11 (internal quotation marks omitted). ``NEPA imposes no
substantive constraints on the agency's ultimate decision to build,
fund, or approve a proposed project,'' and ``is relevant only to the
question of whether an agency's final decision--i.e., that decision to
authorize, fund, or otherwise carry out a particular proposed project
or activity--``was reasonably explained.'' Id. at 1511. Procedures for
implementing a purely procedural statute must be, by their nature,
procedural rules. And even if that were not universally true, the new
rules adopted in this notice are purely procedural.
Thus, unsurprisingly, both the prior and revised versions of USDA's
NEPA regulations do not dictate what outcomes such consideration must
produce, nor do they impose binding legal obligations on private
citizens. Rather, they prescribe how USDA will conduct NEPA reviews:
detailing the structure of environmental impact statements, specifying
submission requirements, and directing the timing of public comment
periods. These are procedural provisions, not substantive environmental
ones. Thus, because procedural rules do not require notice and comment,
they do not require notice and comment to be revised. See 5 U.S.C.
553(b)(A).
Moreover, even if (and to the extent that) USDA's regulations are
not procedural rules, they may be characterized as interpretive rules
or general statements of policy under 5 U.S.C. 553(b)(A). An
interpretive rule provides an interpretation of a statute, rather than
make discretionary policy choices that establish enforceable rights or
obligations for regulated parties under delegated congressional
authority. The definitions section at 7 CFR 1b.11, for instance, may be
classified as such. General statements of policy, meanwhile, provide
notice of an agency's intentions as to how it will enforce statutory
requirements, again without creating enforceable rights or obligations
for regulated parties under delegated congressional authority. 7 CFR
1b.1 and 1b.2, for instance, may be classified as general statements of
policy. Both of these types of agency actions are expressly exempted
from notice and comment by statute. 5 U.S.C. 553(b)(A).
Accordingly, although USDA is voluntarily providing notice and an
opportunity to comment on this interim final rule, it has determined
that notice-and-comment procedures prior to issuance are not required.
The fact that USDA previously undertook notice-and-comment rulemaking
in promulgating these regulations is immaterial. As the Supreme Court
has held, where notice-and-comment procedures are not required, prior
use of them in promulgating a rule does not bind the agency to use such
procedures in making future changes. See Perez v. Mortg. Bankers Ass'n,
575 U.S. 92, 101 (2015).
B. USDA Has Good Cause for Proceeding With an Interim Final Rule
Moreover, USDA also finds that, to the extent that prior notice and
solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the ``good cause'' exceptions in 5
U.S.C. 553(b)(B) and (d). The APA authorizes agencies to issue
regulations without notice and public comment when an agency finds, for
[[Page 29645]]
good cause, that notice and comment is ``impracticable, unnecessary, or
contrary to the public interest,'' 5 U.S.C. 553(b)(B), and to make the
rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As
discussed in Sections I and II, above, USDA's prior rules were
promulgated as a ``supplement[ ]'' to the Council on Environmental
Quality's (CEQ's) NEPA regulations, and USDA also ``adopt[ed]'' the
CEQ's regulations by incorporation. 7 CFR 1b.1(a) Following the
rescission of CEQ's regulations, USDA's current rules are left to
supplement a NEPA framework that no longer exists. USDA, thus far and
as a temporary, emergency measure, has been continuing to operate under
its prior procedures as if the CEQ NEPA framework still existed. This
is not, however, tenable. As soon as proper procedures are available--
which they are now--this makeshift framework needs to be rescinded
immediately.
That being so, rescinding the old procedures immediately without
replacing them could create a vacuum that would inflict immense
uncertainty on agencies and regulated parties and potentially grind all
projects under USDA's purview to a halt. So, pairing the rescission
with a new structure immediately is absolutely critical. Because of
this need for speed and certainty, notice-and-comment is, to the extent
it was otherwise required at all, impracticable and contrary to the
public interest.
For the same reasons stated in the present section, above, USDA
finds that ``good cause'' exists under 5 U.S.C.Sec. 553(d)(3) to waive
the 30-day delay of the effective date that would otherwise be
required. This interim final rule will accordingly be effective
immediately.
C. USDA Voluntarily Solicits Comment
As explained above, comment is not required prior to issuance
because USDA's NEPA procedures were and are procedural and because,
even if comment were otherwise required under the APA, good cause
exists to forego it. Nevertheless, USDA has elected to voluntarily
solicit comment on this interim final rule and encourages public
comments on all aspects of this interim final rule. However, USDA
emphasizes that reconsideration of CEQ rulemakings and actions, for
example, CEQ's determination to rescind its NEPA regulations, are
beyond the scope of this interim final rule. USDA is not soliciting
comment on any of CEQ's prior rulemakings or amendments to CEQ's NEPA
regulations. Nor does this interim final rule take a position on the
Department's or any USDA agency's prior interpretations of NEPA's
procedural requirements. Comments are requested for 30 days and must be
submitted timely by July 30, 2025 to receive proper consideration by
the Department. The Department may, after consideration of comments
received, make changes accordingly to the interim final rule.
IV. Regulatory Certifications
A. Regulatory Planning and Review
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether a regulatory action is significant as
defined by E.O. 12866 and will review significant regulatory actions.
OIRA has determined that this interim final rule is significant as
defined by E.O. 12866. E.O. 13563 reaffirms the principles of E.O.
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Department has developed the interim final rule consistent with
E.O. 13563.
B. Congressional Review Act
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this interim final rule as not a
major rule as defined by 5 U.S.C. 804(2). This procedural action, in
any event, is not a rule at all under 5 U.S.C. 804(3)(C).
C. National Environmental Policy Act
This interim final rule is procedural in its entirety and therefore
does not require preparation of a NEPA analysis. NEPA does not require
environmental analysis or documentation when establishing procedural
guidance. The determination that establishing department-level NEPA
procedures does not require NEPA analysis and documentation has been
upheld in Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55
(7th Cir. 2000).
D. Regulatory Flexibility Act
The Regulatory Flexibility Act only applies to general notices of
proposed rulemaking. Because a notice of proposed rulemaking is not
required for this action pursuant to 5 U.S.C. 553, or any other law, no
regulatory flexibility analysis has been prepared for this interim
final rule. See 5 U.S.C. 601(2), 603(a).
E. Federalism
The Department has considered this interim final rule under the
requirements of E.O. 13132, Federalism. The Department has determined
that the interim final rule conforms with the federalism principles set
out in this E.O.; will not impose any compliance costs on the States;
and will not have substantial direct effects on the States, on the
relationship between the Federal government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the Department has concluded that this interim
final rule will not have federalism implications, and no further
assessment of federalism implications is necessary.
F. Consultation and Coordination With Indian Tribal Governments
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, requires Federal agencies to consult and coordinate with
Tribes on a government-to-government basis on policies that have Tribal
implications, including regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or the
distribution of power and responsibilities between the Federal
Government and Indian Tribes. This interim final rule does not impose
substantial direct compliance costs on Tribal governments and does not
preempt Tribal law. The Department has reviewed this interim final rule
in accordance with the requirements of E.O. 13175 and has determined
that this interim final rule will not have substantial direct effects
on Indian Tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes. Therefore,
consultation and coordination with Indian Tribal governments is not
required for this interim final rule.
G. Energy Effects
The Department has reviewed the interim final rule under E.O.
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. The Department has determined that the
interim final rule will not constitute a significant energy action as
defined in E.O. 13211.
[[Page 29646]]
H. Civil Justice Reform
The Department has analyzed the interim final rule in accordance
with the principles and criteria in E.O. 12988, Civil Justice Reform.
Upon publication of the interim final rule, (1) all State and local
laws and regulations that conflict with the interim final rule or that
impede its full implementation will be preempted; (2) no retroactive
effect will be given to this interim final rule; and (3) it will not
require administrative proceedings before parties may file suit in
court challenging its provisions.
Under section 3(a) E.O. 12988, agencies must review their
regulations to eliminate drafting errors and ambiguities, draft them to
minimize litigation, and provide a clear legal standard for affected
conduct. Section 3(b) provides a list of specific issues for review to
conduct the reviews required by section 3(a). USDA has conducted this
review and determined that this interim final rule complies with the
requirements of E.O. 12988.
I. Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of the
interim final rule on State, local, and Tribal governments and the
private sector. The interim final rule will not compel the expenditure
of $100 million or more, adjusted annually for inflation, in any one
(1) year by State, local, and Tribal governments in the aggregate or by
the private sector. Therefore, a statement under section 202 of the Act
is not required. This action also does not impose any enforceable duty,
contain any unfunded mandate, or otherwise have any effect subject to
the requirements of 2 U.S.C. 1531-1538.
J. Paperwork Reduction Act
The interim final rule does not contain any recordkeeping or
reporting requirements, or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects
7 CFR Parts 1b and 372
Environmental impact statements.
7 CFR Part 520
Agricultural research, Environmental impact statements.
7 CFR Part 650
Environmental impact statements, Flood plains.
7 CFR Part 799
Environmental impact statements, Organization and functions
(Government agencies).
7 CFR Part 1970
Administrative practice and procedure, Buildings and facilities,
Environmental impact statements, Environmental protection, Grant
programs, Housing, Loan programs, Natural resources, Utilities.
7 CFR Part 3407
Agricultural research, Environmental impact statements, Grant
programs--agriculture.
36 CFR Part 220
Administrative practice and procedure, Environmental impact
statements, Environmental protection, National forests, Science and
technology.
Therefore, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301 and 42 U.S.C. 4321-4347, the Department
revises 7 CFR part 1b, and removes and reserves 7 CFR parts 372, 520,
650, 799, 1970, 3407, and 36 CFR part 220 as follows:
Title 7--Agriculture
0
1. Revise part 1b to read as follows:
PART 1b--NATIONAL ENVIRONMENT POLICY ACT
Sec.
1b.1 Purpose.
1b.2 Policy.
1b.3 Categorical exclusions and findings of applicability and no
extraordinary circumstance.
1b.4 Categorical exclusion of USDA subcomponents and actions.
1b.5 Environmental assessments.
1b.6 Finding of no significant impact.
1b.7 Environmental impact statements.
1b.8 Records of decision.
1b.9 Efficient and effective environmental reviews.
1b.10 Documentation prepared by applicant or third party.
1b.11 Definitions and acronyms.
1b.12 Severability.
Authority: 5 U.S.C. 301; 42 U.S.C. 4321 et seq.; E.O. 11514, 3
CFR, 1966-1970 Comp., p. 902, as amended by E.O. 11991, 3 CFR, 1978
Comp., p. 123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40 CFR 1507.3.
Sec. 1b.1 Purpose.
(a) Purpose. The purpose of this part is to outline the procedures
by which the U.S. Department of Agriculture (hereinafter USDA or the
Department) will integrate the National Environmental Policy Act (NEPA)
into decision-making processes. Specifically, this part: describes the
process by which USDA determines what actions are subject to NEPA's
procedural requirements and the applicable level of NEPA review;
ensures that relevant environmental information is identified and
considered early in the process in order to ensure informed decision
making; enables USDA to conduct coordinated, consistent, predictable
and timely environmental reviews; reduces unnecessary burdens and
delays; and implements NEPA's mandates regarding lead and cooperating
agency roles, page and time limits, and sponsor preparation of
environmental assessments and environmental impact statements.
(b) Procedural and interpretive rule. This part sets forth USDA's
procedures and practices for implementing NEPA. It further explains
USDA's interpretation of certain key terms in NEPA. It does not, nor
does it intend to, govern the rights and obligations of any party
outside the Federal government. It does, however, establish the
procedures under which USDA will typically fulfill its requirements
under NEPA.
(c) Applicability. This part is applicable to all mission areas,
agencies and general offices (hereinafter USDA subcomponent or
subcomponent) of the U.S. Department of Agriculture.
(d) Authority. NEPA imposes certain procedural requirements on the
exercise of USDA's existing legal authority in relevant circumstances.
Nothing contained in these procedures is intended, nor should be
construed to limit, USDA's other authorities or legal responsibilities.
Sec. 1b.2 Policy.
(a) USDA compliance with NEPA. It is the policy of USDA that all
USDA subcomponents' policies and programs shall be planned, developed,
and implemented to comply with Congress' directives in NEPA, as amended
by the Fiscal Responsibility Act of 2023, with the understanding that
NEPA is a purely procedural statute that imposes no substantive
environmental obligations or restrictions.
(1) The Under Secretary of Natural Resources and Environment (NRE)
is responsible for ensuring that these USDA NEPA regulations are
consistent with NEPA and will coordinate compliance for the Department.
(2) The Under Secretary of NRE may engage the Agricultural Council
on Environmental Quality (7 U.S.C. 5401, Pub. L. 101-624) when
developing, revising, or amending the necessary
[[Page 29647]]
processes to be used by the Office of the Secretary in reviewing,
implementing, and planning its NEPA activities, determinations, and
policies.
(3) The Under Secretary of NRE will consult with the Council on
Environmental Quality (CEQ) while developing or revising the USDA NEPA
regulations, as established in this part, in accordance with NEPA
section 102(2)(B), 42 U.S.C. 4332(B).
(b) Managing NEPA compliance. Within USDA, the Under Secretary of
NRE shall perform all of the duties and exercise all of the powers and
functions of the senior agency official to ensure compliance with NEPA
and the Department's policies for NEPA, including resolving
implementation issues.
(1) The senior agency official shall:
(i) Administer the implementation of NEPA for USDA, to include USDA
subcomponent adherence to this part and approving all revisions to this
part;
(ii) Centralize information technology and databases regarding
documentation and analyses required by NEPA and this part; and
(iii) Compile and submit the annual report to the Committee on
Natural Resources of the House of Representatives and the Committee on
Environment and Public Works of the Senate that identifies any
environmental assessment and environmental impact statement that such
lead agency did not complete by the deadline described in NEPA section
107(g), 42 U.S.C. 4336a(g) and provides an explanation for any failure
to meet such deadline.
(2) The senior agency official may delegate authority to another
mission area Under Secretary, or other USDA official for a subcomponent
with NEPA responsibilities, to perform the duties of the senior agency
official for the following:
(i) Ensuring that subcomponent staff have the resources and
competencies necessary to produce timely, concise, and effective
environmental documents;
(ii) Reviewing and approving the adoption or modification of any
subcomponent-specific NEPA guidance (as permitted in paragraph (c) of
this section);
(iii) Determining that an environmental impact statement is of
extraordinary complexity and therefore, pursuant to NEPA section
107(e)(1)(B), 42 U.S.C. 4336a(e)(1)(B), may exceed 150 pages but not
exceed 300 pages;
(iv) Reviewing and determining whether to authorize any deviation
from the time limit for preparation of environmental assessments and
environmental impacts statements, as established by NEPA section
107(g), 42 U.S.C. 4336a(g);
(v) Resolving implementation issues concerning documentation
prepared by applicants and third parties (e.g., contractors), as well
as ensuring NEPA analyses for proposals of private applicants or other
non-Federal entities commence at the earliest reasonable time;
(vi) Establishing subcomponent procedures for appropriate bonding
or other security;
(vii) Approving, or identifying a designee to approve, alternative
arrangements for complying with NEPA for emergency actions when a
reasonably foreseeable significant impact is not anticipated, as
described in Sec. 1b.9(w)(1);
(viii) Receiving or responding to written requests that a lead
agency be designated when requests are received from any Federal
agency, or any State, Tribal, or local agency, or private person
substantially affected by the absence of lead agency designation; and
(ix) Facilitating interagency disagreements concerning designation
of a lead or joint agency or disagreements over proposed major Federal
actions that might cause reasonably foreseeable significant impacts and
determining whether the disagreement needs elevated to the Council on
Environmental Quality.
(c) Subcomponent-specific NEPA guidance. It is the policy of USDA
that USDA subcomponents may establish subcomponent-specific NEPA
guidance when necessary to refine NEPA processes and practices to
address subcomponent-specific laws and program efficiency. Additional
subcomponent-specific guidance shall avoid creating unnecessary process
and should not repeat the requirements, definitions, or other matters
that are set forth in this part or the Act itself.
(d) Annual report to Congress. NEPA section 107(h)(1)(A) and (B),
42 U.S.C. 4336a(h)(1)(A) and (B), requires the head of each lead agency
to annually submit to the Committee on Natural Resources of the House
of Representatives and the Committee on Environment and Public Works of
the Senate a report that identifies any environmental assessment and
environmental impact statement that such lead agency did not complete
by the deadline described in NEPA section 107(g), 42 U.S.C. 4336a(g)
and provides an explanation for any failure to meet such deadline.
(1) The USDA Senior Agency Official (or their designee) shall
coordinate USDA subcomponent responses for the annual report to
Congress and consolidate these into one response that will be provided
to Congress to ensure departmental awareness and oversight of
environmental assessments and environmental impact statements not
completed within the required deadlines established in NEPA section
107(g), 42 U.S.C. 4336a(g).
(2) Each USDA mission area that contains subcomponents with NEPA
responsibilities will submit a report to the USDA Senior Agency
Official, or their designee, following guidance provided by the
Department on an annual basis.
(i) For those USDA mission areas with more than one subcomponent
contributing to the report, subcomponent responses shall be
consolidated and one response provided for the mission area.
(ii) The USDA Senior Agency Official, or their designee, shall
ensure the final report meets the requirements of NEPA section 107(h),
42 U.S.C. 4336a(h).
(e) Determining when NEPA applies. Threshold determinations of
whether NEPA applies may be made on a case-by-case or programmatic
basis and record keeping of the justifications for these determinations
is advisable. In determining whether NEPA applies, USDA will consider
only the proposed action or a project at hand. NEPA does not apply to a
proposal when:
(1) The proposal is not a ``major Federal action.'' The terms
``major'' and ``Federal action,'' each have independent force. NEPA
applies only when both of these two criteria are met. Such a
determination is inherently bound up in the facts and circumstances of
each individual situation, and is thus reserved to the judgment of USDA
in each instance;
(2) The proposal or decision is exempted from NEPA by law;
(3) The proposal or decision do not result in final Federal agency
action under the Administrative Procedure Act, see 5 U.S.C. 704, or
other relevant statute that also includes a finality requirement;
(4) In circumstances where Congress, by statute, has prescribed
decisional criteria with sufficient completeness and precision such
that a Federal agency retains no residual discretion to alter its
action based on the consideration of environmental factors, then that
function of USDA is nondiscretionary within the meaning of NEPA section
106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and
4336e(10)(B)(vii), respectively), and NEPA does not apply to the action
in question;
(5) Compliance with NEPA would clearly and fundamentally conflict
with
[[Page 29648]]
the requirements of another provision of law; or
(6) The proposal is an action for which another statute's
requirements serve the function of the Federal agency's compliance with
the Act.
(f) Determining the appropriate level of NEPA review. At all steps
in the following process, USDA subcomponents will consider the nature
of the proposal or project at hand, the potentially affected
environment, and the anticipated degree of effect:
(1) In accordance with NEPA section 106(b)(3), 42 U.S.C.
4336(b)(3), when making a determination on the level of review needed,
a USDA subcomponent:
(i) May make use of any reliable data source; and
(ii) Is not required to undertake new scientific or technical
research unless the new scientific or technical research is essential
to a reasoned choice among alternatives, and the overall costs and time
frame of obtaining it are not unreasonable.
(2) If a USDA subcomponent determines under Sec. 1b.2(e) that NEPA
applies to a proposal or decision, the subcomponent will then determine
the appropriate level of NEPA review in the following sequence and
manner:
(i) If the subcomponent has established, or adopted pursuant to
NEPA section 109, 42 U.S.C. 336c, a categorical exclusion that covers
the proposed action, the subcomponent will analyze whether to apply the
categorical exclusion to the proposed action and apply the categorical
exclusion, if appropriate, pursuant to Sec. 1b.3(f) and (g).
(ii) If another agency has already established a categorical
exclusion that covers the proposed action, the subcomponent will
consider whether to adopt that exclusion pursuant to Sec. 1b.3(c) so
that it can be applied to the proposed action at issue, and to future
activities or decisions of that type.
(iii) If the proposed action warrants the establishment of a new
categorical exclusion, or the revision of an existing categorical
exclusion, pursuant to Sec. 1b.3(b), the subcomponent will consider
whether to establish, or revise, and then apply the categorical
exclusion to the proposed action pursuant to Sec. 1b.3(f) and (g).
(iv) If a USDA subcomponent cannot apply a categorical exclusion to
the proposed action consistent with paragraph (f)(2)(i) through (iii)
of this section, the subcomponent will consider the proposed action's
reasonably foreseeable significant impacts consistent with paragraph
(f)(3) of this section, and then will:
(A) if the proposed action is not likely to have reasonably
foreseeable significant impacts or the significance of the impacts is
unknown, develop an environmental assessment, as described in Sec.
1b.5; or
(B) if the proposed action is likely to have reasonably foreseeable
significant impacts, develop an environmental impact statement, as
described in Sec. 1b.7.
(3) When considering whether the reasonably foreseeable impacts of
an action are significant, USDA subcomponents will consider and analyze
the potentially affected environment and degree of the effects of the
action.
(i) Potentially affected environment means the condition of the
physical, biological, social, and economic factors that may be impacted
by an action.
(ii) In considering the degree of effects, USDA subcomponents
should consider the following, as appropriate to the specific action
and in the context of the potentially affected environment:
(A) Both short- and long-term effects.
(B) Both beneficial and adverse effects.
(C) Effects on public health and safety.
(D) Economic effects.
(E) Effects on the quality of life of the American people.
(iii) In providing rationale for whether the degree of effect is
significant, responsible officials shall consider:
(A) How the unavoidable short- and long-term adverse impacts of
implementing the action compares to the short- and long-term adverse or
beneficial consequences of not implementing the action; and
(B) How the irreversible or irretrievable commitment of a resource,
as part of the action, contributes to a loss of long-term productivity
for the human environment.
(g) Integrated environmental review and compliance. It is the
policy of USDA that, to the fullest extent possible, USDA subcomponents
should conduct NEPA reviews concurrent and integrated with other
environmental effects analyses and related surveys and studies required
by all other Federal environmental review laws and Executive orders
applicable to the proposal, including the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.), the National Historic
Preservation Act of 1966 (54 U.S.C. 300101-306108), the Endangered
Species Act of 1973 (16 U.S.C. 1531-1544), and the Clean Water Act of
1972 (33 U.S.C. 1251 et seq.).
(h) Limitations on actions during the NEPA process. It is the
policy of USDA that, except as provided in Sec. 1b.9(v) and (w), while
a NEPA review is ongoing a USDA subcomponent will take no action
concerning a proposal that would have an adverse environmental effect
or limit the choice of reasonable alternatives when alternatives are
necessary.
(1) For proposals that are initially developed by applicants or
other non-Federal entities, USDA subcomponents will:
(i) Coordinate with the non-Federal entity at the earliest
reasonable time in the planning process to inform the entity what
information a USDA subcomponent might need to comply with NEPA, as well
as any other applicable environmental review processes, and establish a
schedule for completing steps in the NEPA review process consistent
with NEPA's statutory deadlines and any internal subcomponent NEPA
schedule requirements; and
(ii) Begin the NEPA process by determining whether NEPA applies, as
described in paragraph (e) of this section, and if it does, determine
the appropriate level of NEPA review, as described in paragraph (f) of
this section, as soon as practicable after receiving the complete
application.
(2) If USDA is considering an application from a non-Federal entity
and becomes aware that the applicant is about to take an action within
USDA's jurisdiction that would meet either of the criteria in Sec.
1b.2.h, USDA will promptly notify the applicant that USDA will take
appropriate action to ensure that the objectives and procedures of NEPA
are achieved. This section does not preclude development by applicants
of plans or designs or performance of other activities necessary to
support an application for Federal, State, Tribal, or local permits or
assistance. When considering a proposed action for Federal funding,
USDA may authorize such activities, including, but not limited to,
acquisition of interests in land (e.g., fee simple, rights-of-way, and
conservation easements), purchase of long lead-time equipment, and
purchase options made by applicants.
(3) When agencies under the Rural Development mission area are
obligating funds, the environmental review process must be concluded
before the obligation of funds except for infrastructure projects where
the assurance that funds will be available for community health,
safety, or economic development has been determined as necessary by the
Agency Administrator. At the discretion of the Agency Administrator,
funds may be obligated contingent upon the
[[Page 29649]]
conclusion of the environmental review process prior to any action that
would have an adverse effect on the environment or limit the choices of
any reasonable alternatives. Funds so obligated shall be rescinded if
the agency cannot conclude the environmental review process before the
end of the fiscal year after the year in which the funds were
obligated, or if the agency determines that it cannot proceed with
approval based on findings in the environmental review process. For the
purposes of this section, infrastructure projects shall include
projects such as broadband, telecommunications, electric, energy
efficiency, smart grid, water, sewer, transportation, and energy
capital investments in physical plant and equipment, but not
investments authorized in the Housing Act of 1949.
(4) Adjudication. An adjudication may be a multi-member commission
that employs staff recommendations as described here. For adjudication,
the environmental document will normally precede the final staff
recommendation and that portion of the public hearing related to the
impact study. In appropriate circumstances, the document may follow
preliminary hearings designed to gather information for use in the
statements.
Sec. 1b.3 Categorical exclusions and findings of applicability and no
extraordinary circumstance.
(a) Generally. This section describes the process USDA uses for
establishing and revising categorical exclusions (CEs), for adopting
other agencies' CEs, for removing CEs, for applying CEs to a proposed
action, for considering extraordinary circumstances, and for relying on
another Federal agency's CE determination. USDA categorical exclusions,
including CEs USDA established and substantiated consistent with CEQ's
previous NEPA procedures, are listed at Sec. 1b.4. Notification of CEs
adopted by a USDA subcomponent from other agencies will be in
accordance with paragraph (c) of this section and tracked by USDA's
Natural Resources and Environment mission area for use by any other
USDA agency.
(b) Establishing and revising categorical exclusions. To establish
or revise a categorical exclusion, USDA subcomponents will determine
that the category of actions normally does not have reasonably
foreseeable significant impacts that affect the quality of the human
environment. In making this determination, subcomponents will:
(1) Develop a written record containing information to substantiate
its determination;
(2) Consult with CEQ on its proposed categorical exclusion,
including the written record, for a period not to exceed 30 days prior
to providing public notice as described in paragraph (b)(3) of this
section; and
(3) Provide public notice of USDA's establishment or revision of
the categorical exclusion and the written justification in the Federal
Register.
(c) Adopting categorical exclusions from other Federal agencies.
Consistent with NEPA section 109, 42 U.S.C. 4336c, USDA subcomponents
may adopt a categorical exclusion listed in another agency's NEPA
procedures. When adopting a categorical exclusion, USDA subcomponents
will:
(1) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its category of proposed or related
actions;
(2) Consult with the agency that established the categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion is appropriate; and
(3) Provide public notification of the categorical exclusion that
USDA is adopting, including a brief description of the proposed action
or category of proposed actions to which USDA intends to apply the
adopted categorical exclusion.
(i) Public notification will be provided on a USDA website and the
adoption of the category will be tracked by USDA's Natural Resources
and Environment mission area. Once a categorical exclusion is adopted
by one USDA subcomponent, it will be available for use to all other
USDA subcomponents.
(ii) Non-USDA categories that were already adopted by a USDA
subcomponent prior to the 2025 revision of this part are tracked by
USDA's Natural Resources and Environment mission area and may be used
by any other USDA subcomponent on proposed actions that fit the
categorically excluded actions. Adopted categories will be listed on a
USDA website.
(d) Removal of categorical exclusions. To remove a categorical
exclusion from Sec. 1b.4 of this part, a USDA subcomponent will:
(1) Develop a written justification for the removal;
(2) Consult with CEQ on its proposed removal of the categorical
exclusion, including the written justification, for a period not to
exceed 30 days prior to providing public notice as described in
subparagraph (3) below; and
(3) Provide public notice of USDA's removal of the categorical
exclusion and the written justification in the Federal Register.
(e) Applying categorical exclusions. If a USDA subcomponent
determines that one or more categorical exclusions applies to a
proposed action, the subcomponent will evaluate the action for
extraordinary circumstances. USDA subcomponents may apply any of the
categorical exclusions listed at Sec. 1b.4. If a USDA subcomponent
determines that a categorical exclusion established through
legislation, or a categorical exclusion that Congress through
legislation has directed USDA to establish, covers a proposed agency
action, USDA will conclude review consistent with applicable law. If
appropriate, USDA may examine extraordinary circumstances, modify the
proposed action, or document the determination that the legislative
categorical exclusion applies, consistent with paragraph (g) of this
section and the legal authority for the establishment of the
legislative categorical exclusion.
(f) Extraordinary circumstances. When applying categorical
exclusions, USDA subcomponents shall consider relevant resources in the
potentially affected environment for which an extraordinary
circumstance may exist that would require the action to instead be
documented in an environmental assessment (when there is uncertainty
regarding the degree of effect) or an environmental impact statement
(if it is determined there is a reasonably foreseeable significant
impact). Resources for consideration for extraordinary circumstances
will be determined at the responsible official's sole discretion and
shall be based on the nature of the actions proposed and in the context
of the potentially affected environment.
(1) The resources to screen for in the potentially affected
environment when considering extraordinary circumstances may include,
but are not limited to:
(i) Federally listed threatened or endangered species or designated
critical habitat or species proposed for Federal listing or proposed
critical habitat;
(ii) Flood plains, wetlands, or other such sensitive areas;
(iii) Special sources of water, such as sole-source aquifers,
wellhead protection areas, municipal watersheds, or other water sources
that are vital in a region;
(iv) Areas having formal Federal or state designations, such as
wilderness areas, parks, or wildlife refuges; wild and scenic rivers;
marine sanctuaries; national natural landmarks; inventoried roadless
areas; or national recreation areas;
[[Page 29650]]
(v) Specially managed areas, such as designated research or
experimental areas, coral reefs, coastal barrier resources, or, unless
exempt, coastal zone management areas;
(vi) Important or prime agricultural, forest, or range lands; or
(vii) Property (e.g., sites, buildings, structures, and objects) of
historic, archeological, or architectural significance, as designated
by Federal, Tribal, State, or local governments, or property eligible
for listing on the National Register of Historic Places.
(2) The mere presence of one or more of the resources listed in
paragraph (f)(1) of this section, or as otherwise identified at the
sole discretion of the responsible official, does not mean an
extraordinary circumstance exists. If there is a cause-effect
relationship (impact) between the proposed actions and the resource
considered, an extraordinary circumstance exists only when there is
reasonable uncertainty whether the degree of the effect is significant
or certainty that the degree of effect is significant.
(3) If an extraordinary circumstance exists, the responsible
official may modify the proposed action, or take other steps, such that
certainty is created regarding the degree of effect and it is
determined the degree of effect is not a reasonably foreseeable
significant impact for the resource(s) considered that initially led to
the existence of an extraordinary circumstance. With this outcome, the
extraordinary circumstance will be considered to no longer exist and
use of the categorical exclusion may proceed.
(4) When effects analysis is completed to demonstrate compliance
with other applicable environmental laws, regulations, or executive
orders (e.g., analysis completed for Endangered Species Act, National
Historic Preservation Act, Clean Water Act, etc.) and already addresses
one of the resources in paragraph (f)(1) of this section or as
identified at the sole discretion of the responsible official, and it
is clear from that analysis and compliance discussion that no
extraordinary circumstance exists for the resource considered, the
responsible official may rely on that analysis to inform their finding
of no extraordinary circumstance.
(g) Findings of applicability and no extraordinary circumstances
(FANEC). To apply a categorical exclusion, a responsible official must
determine that one or more categorical exclusions apply to a proposed
action and that no extraordinary circumstance exists. For those
categories that require NEPA documentation, as specified in Sec.
1b.4(d), responsible officials shall document these determinations as
outlined in paragraphs (g)(1) and (2) of this section.
(1) A USDA subcomponent shall document a finding of applicability
and no extraordinary circumstance (FANEC) if the subcomponent
determines, based on the NEPA review, that:
(i) An action is categorically excluded from documentation in an
environmental assessment or environmental impact statement;
(ii) No extraordinary circumstance exists; and
(iii) The category requires NEPA documentation in accordance with
statute, Sec. 1b.4(d), or as required by the Federal agency
regulations or procedures from which a category was adopted.
(2) USDA subcomponents may apply any format they choose to document
the finding of applicability and no extraordinary circumstance, but
shall address the following elements at a minimum:
(i) Incorporate by reference any other relevant documentation
developed as part of the environmental review process and contained in
the proposal record, such as documentation of compliance with other
applicable laws or regulations as deemed necessary by the responsible
official;
(ii) State the category or categories being used. If a category
being used is adopted from another non-USDA agency, specify that it was
adopted;
(iii) Describe the proposed action and certify the category or
categories used are applicable to the actions;
(iv) State the resources that the responsible official considered
in determining whether an extraordinary circumstance exists;
(v) State that no extraordinary circumstances exist, as informed by
the interdisciplinary review; and
(vi) Include the date issued and signature of the responsible
official.
(h) Reliance on categorical exclusion determinations of other
agencies. Responsible officials may also rely on another agency's
determination that a categorical exclusion applies, and no
extraordinary circumstance exists, for a particular proposed action if
the agency action covered by those determinations and the USDA
subcomponent's proposed actions and potentially affected environment
are substantially the same. The responsible official will document
their reliance on another agency's categorical exclusion determination
and include this in the proposal record.
(i) Other documentation considerations. If use of a categorical
exclusion requires documentation in addition to those items listed in
paragraph (g)(2) of this section, as specified in statute or
regulation, USDA subcomponents may add them to the documentation for
the finding of applicability and no extraordinary circumstance as
needed.
(j) Timing of action. Once the responsible official has signed the
documentation for the finding of applicability and no extraordinary
circumstance, and unless other statutes or regulations require
otherwise, the USDA subcomponent or applicant may begin implementing
the action. When NEPA documentation is not required for a categorical
exclusion, once the responsible official has determined one or more
categorical exclusions applies to a proposed action and no
extraordinary circumstance exists and has completed any other necessary
environmental review documentation, and unless other statutes or
regulations require otherwise, the USDA subcomponent or applicant may
begin implementing the action.
Sec. 1b.4 Categorical exclusion of USDA subcomponents and actions.
(a) The USDA subcomponents listed in paragraphs (a)(1) through (9)
of this section conduct programs and activities that do not normally
result in reasonably foreseeable significant impacts on the natural or
physical environment. As such, these subcomponents' actions are
excluded from the preparation of an environmental assessment (EA) or
environmental impact statement (EIS). Programs and activities of the
USDA subcomponents listed in this paragraph may utilize categorical
exclusions, as described in this part, but do not require the
preparation of an EA or EIS unless the subcomponent determines that an
extraordinary circumstance exists for an individual action and obtains
the concurrence of the USDA Senior Agency Official (Undersecretary of
Natural Resources and Environment) (or their designee):
(1) Agricultural Marketing Service
(2) Economic Research Service
(3) Federal Crop Insurance Corporation
(4) Food and Nutrition Service
(5) Food Safety and Inspection Service
(6) Foreign Agricultural Service
(7) National Agricultural Library
(8) National Agricultural Statistics Service
(9) The following general offices of the Department: Office of the
Chief Economist, Office of the Chief Financial Officer, Office of the
Chief Information Officer, Office of the General Counsel,
[[Page 29651]]
Office of the Inspector General, National Appeals Division, Office of
Budget and Program Analysis, Office of Communications, Office of
Partnerships and Public Engagement, Office of Tribal Relations, and
Office of Small and Disadvantaged Business Utilization.
(b) The categories in paragraphs (c) and (d) of this section are
for activities which have been determined by USDA to not have a
reasonably foreseeable significant impact on the human environment and
are excluded from the preparation of an environmental assessment or
environmental impact statement. Categories have been assigned unique
numbers for ease of reference. The following acronyms at the end of the
number sequence indicate the USDA subcomponent that originally
promulgated the category. These acronyms are used in the numbering
sequence for USDA subcomponent tracking and continuity purposes and do
not imply that the subcomponent indicated is the only USDA subcomponent
that may use the category:
(1) OSEC (Office of the Secretary)
(2) APHIS (Animal and Plant Health Inspection Service)
(3) FSA (Farm Service Agency)
(4) NRCS (Natural Resources Conservation Service)
(5) RD (Rural Development)
(6) USFS (U.S. Forest Service)
(c) The following categorical exclusions do not require NEPA
documentation.
(1) (USDA-01c-OSEC) Policy development, planning and implementation
which relate to routine activities, such as personnel, organizational
changes, or similar administrative functions. Examples include, but are
not limited to:
(i) Issuing minor technical corrections to regulations, handbooks,
and internal guidance, as well as amendments to them;
(ii) Personnel actions, reduction-in-force, or employee transfers;
and
(iii) Procurement actions for goods and services conducted in
accordance with applicable laws, regulations, and executive orders.
(2) (USDA-02c-OSEC) Activities which deal solely with the funding
of programs, such as program budget proposals, disbursements, and
transfer or reprogramming of funds.
(3) (USDA-03c-OSEC) Inventories, research activities, and studies,
such as resource inventories and routine data collection when such
actions are clearly limited in context and intensity. Examples include,
but are not limited to:
(i) Identifications, inspections, surveys, sampling, testing, and
monitoring that does not cause physical alteration of the environment;
(ii) Laboratory research involving the evaluation and use of
chemicals in a manner not specifically listed on the product label
pursuant to applicable Federal authorizations;
(iii) Research evaluating wildlife management products or tools,
such as animal repellents, frightening devices, or fencing, that is
carried out in a manner and area designed to eliminate the potential
for harmful environmental effects and in accordance with applicable
regulatory requirements;
(iv) Research operations conducted within any laboratory,
greenhouse or other contained facility where research practices and
safeguards prevent environment impacts, such as the release of
hazardous materials into the environment;
(v) Testing outside of the laboratory, such as in small, isolated
field plots, which involves the routine use of familiar chemicals or
biological materials and does not involve the use of control agents
requiring containment or a special license or a permit from a
regulatory agency.
(vi) Soil surveys;
(vii) Snow surveys and water supply forecasts;
(viii) Plant materials for conservation;
(ix) Inventory and monitoring;
(x) River Basin Studies under section 6 of Pub. L. 83-566, as
amended.
(4) (USDA-04c-OSEC) Educational and informational programs and
activities.
(5) (USDA-05c-OSEC) Civil and criminal law enforcement and
investigative activities.
(6) (USDA-06c-OSEC) Activities which are advisory and consultative
to other agencies and public and private entities, such as legal
counselling and representation.
(7) (USDA-07c-OSEC) Activities related to trade representation and
market development activities abroad.
(8) (USDA-08c-APHIS) Routine measures, such as, seizures,
quarantines, removals, sanitizing, inoculations, and control employed
by agency programs to pursue their missions and functions.
(i) Such measures may include the use--according to any label
instructions or other lawful requirements and consistent with standard,
published program practices and precautions--of chemicals, pesticides,
or other potentially hazardous or harmful substances, materials, and
target-specific devices or remedies, provided that such use meets all
of the following criteria (insofar as they may pertain to a particular
action):
(A) The use is localized or contained in areas where humans are not
likely to be exposed, and is limited in terms of quantity, i.e.,
individualized dosages and remedies;
(B) The use will not cause contaminants to enter water bodies,
including wetlands;
(C) The use does not adversely affect any federally protected
species or critical habitat; and
(D) The use does not cause bioaccumulation.
(ii) Examples of routine measures include, but are not limited to:
(A) Inoculation or treatment of discrete herds of livestock or
wildlife undertaken in contained areas (such as a barn or corral, a
zoo, an exhibition, or an aviary);
(B) Use of vaccinations or inoculations including new vaccines
(e.g., genetically engineered vaccines) and applications of existing
vaccines to new species provided that the project is conducted in a
controlled and limited manner, and the impacts of the vaccine can be
predicted; and
(C) Isolated (e.g., along a highway) weed control efforts.
(9) (USDA-09c-APHIS) Research and development activities limited in
magnitude, frequency, and scope that occur in laboratories, facilities,
pens, or field sites. Examples include, but are not limited to:
(i) Vaccination trials that occur on groups of animals in areas
designed to limit interaction with similar animals, or include other
controls needed to mitigate potential risk.
(ii) The development and/or production (including formulation,
packaging or repackaging, movement, and distribution) of articles such
as program materials, devices, reagents, and biologics that were
approved and/or licensed in accordance with existing regulations, or
that are for evaluation in confined animal, plant, or insect
populations under conditions that prevent exposure to the general
population.
(iii) Development, production, and release of sterile insects.
(10) (USDA-10c-APHIS) Licensing and permitting.
(i) Issuance of a license, permit, authorization, or approval to
ship or field test previously unlicensed veterinary biologics,
including veterinary biologics containing genetically engineered
organisms (such as vector-based vaccines and nucleic acid-based
vaccines);
(ii) Issuance of a license, permit, authorization, or approval for
movement
[[Page 29652]]
or uses of pure cultures of organisms (relatively free of extraneous
micro-organisms and extraneous material) that are not strains of
quarantine concern and occur, or are likely to occur, in a State's
environment;
(iii) Permitting for confined field releases of genetically
engineered organisms and products; or
(iv) Permitting of:
(A) Importation of nonindigenous species into containment
facilities,
(B) Interstate movement of nonindigenous species between
containment facilities, or
(C) Releases into a State's environment of pure cultures of
organisms that are either native or are established introductions.
(11) (USDA-11c-APHIS) Minor renovation, improvement, and
maintenance of facilities. Examples include, but are not limited to:
(i) Renovation of existing laboratories and other facilities.
(ii) Functional replacement of parts and equipment.
(iii) Minor additions to existing facilities.
(iv) Minor excavations of land and repairs to properties.
(12) (USDA-12c-FSA) Minor management, construction, or repair
actions.
(i) Minor construction, such as a small addition;
(ii) Drain tile replacement;
(iii) Erosion control measures;
(iv) Grading, leveling, shaping, and filling;
(v) Grassed waterway establishment;
(vi) Hillside ditches;
(vii) Land-clearing operations of no more than 15 acres, provided
any amount of land involved in tree harvesting (without stump removal)
is to be conducted on a sustainable basis and according to a Federal,
State, Tribal, or other governmental unit approved forestry management
plan;
(viii) Nutrient management;
(ix) Permanent establishment of a water source for wildlife (not
livestock);
(x) Restoring and replacing property;
(xi) Soil and water development;
(xii) Spring development;
(xiii) Trough or tank installation; and
(xiv) Water harvesting catchment.
(13) (USDA-13c-FSA) Repair, improvement, or minor modification
actions.
(i) Existing fence repair;
(ii) Improvement or repair of farm-related structures under 50
years of age; and
(iii) Minor amendments or revisions to previously approved
projects, provided such proposed actions do not substantively alter the
purpose, operation, location, impacts, or design of the project as
originally approved.
(14) (USDA-14c-FSA) Planting actions.
(i) Bareland planting or planting without site preparation;
(ii) Bedding site establishment for wildlife;
(iii) Chiseling and subsoiling;
(iv) Clean tilling firebreaks;
(v) Conservation crop rotation;
(vi) Contour farming;
(vii) Contour grass strip establishment;
(viii) Cover crop and green manure crop planting;
(ix) Critical area planting;
(x) Firebreak installation;
(xi) Grass, forbs, or legume planting;
(xii) Heavy use area protection;
(xiii) Installation and maintenance of field borders or field
strips;
(xiv) Pasture, range, and hayland planting;
(xv) Seeding of shrubs;
(xvi) Seedling shrub planting;
(xvii) Site preparation;
(xviii) Strip cropping;
(xix) Wildlife food plot planting; and
(xx) Windbreak and shelterbelt establishment.
(15) (USDA-15c-FSA) Management actions.
(i) Forage harvest management;
(ii) Integrated crop management;
(iii) Mulching, including plastic mulch;
(iv) Netting for hard woods;
(v) Obstruction removal;
(vi) Pest management (consistent with all labelling and use
requirements);
(vii) Plant grafting;
(viii) Plugging artesian wells;
(ix) Residue management including seasonal management;
(x) Roof runoff management;
(xi) Thinning and pruning of plants;
(xii) Toxic salt reduction; and
(xiii) Water spreading.
(16) (USDA-16c-FSA) Miscellaneous FSA actions.
(i) Fence installation and replacement;
(ii) Fish stream improvement;
(iii) Grazing land mechanical treatment; and
(iv) Inventory property disposal or lease without protective
easements or covenants;
(v) Conservation easement purchases with no construction planned;
(vi) Emergency program proposed actions (including Emergency
Conservation Program and Emergency Forest Restoration Program) that
have a total cost share of less than $5,000;
(vii) Financial assistance to supplement income, manage the supply
of agricultural commodities, or influence the cost and supply of such
commodities or programs of a similar nature or intent (that is, price
support programs);
(viii) Individual farm participation in Farm Service Agency
programs where no ground disturbance or change in land use occurs as a
result of the proposed action or participation;
(ix) Safety net programs without ground disturbance;
(x) Site characterization, environmental testing, and monitoring
where no significant alteration of existing ambient conditions would
occur, including air, surface water, groundwater, wind, soil, or rock
core sampling; installation of monitoring wells; installation of small
scale air, water, or weather monitoring equipment;
(xi) Stand analysis for forest management planning; and
(xii) Tree protection including plastic tubes.
(17) (USDA-17c-RD) A guarantee provided to the Federal Financing
Bank pursuant to Section 313A(a) of the Rural Electrification Act of
1936 for the purpose of:
(i) Refinancing existing debt instruments of a lender organized on
a not-for-profit basis; or
(ii) Prepaying outstanding notes or bonds made to or guaranteed by
the Agency.
(18) (USDA-18c-RD) Financial assistance for minor construction
proposals. The CEs in this section are for proposals for financial
assistance that involve no or minimal alterations in the physical
environment and typically occur on previously disturbed land. These
actions normally do not require an applicant to submit environmental
documentation with the application. However, based on the review of the
project description, the Agency may request additional environmental
documentation from the applicant at any time, specifically if the
Agency determines that extraordinary circumstances may exist. In
accordance with section 106 of the National Historic Preservation Act
(54 U.S.C. 300101-306108) and its implementing regulations under 36 CFR
800.3(a), the agency has determined that the actions in this section
are undertakings, and in accordance with 36 CFR 800.3(a)(1) has
identified those undertakings for which no further review under 36 CFR
part 800 is required because they have no potential to cause effects to
historic properties. In accordance with section 7 of the Endangered
Species Act (16 U.S.C. 1531-1544) and its implementing regulations at
50 CFR part 402, the agency has determined that the actions
[[Page 29653]]
in this section are actions for purposes of the Endangered Species Act,
and in accordance with 50 CFR 402.06 has identified those actions for
which no further review under 50 CFR part 402 is required because they
will have no effect to listed threatened and endangered species.
(i) Minor amendments or revisions to previously approved projects
provided such activities do not alter the purpose, operation,
geographic scope, or design of the project as originally approved;
(ii) Repair, upgrade, or replacement of equipment in existing
structures for such purposes as improving habitability, energy
efficiency (including heat rate efficiency), replacement or conversion
to enable use of renewable fuels, pollution prevention, or pollution
control;
(iii) Any internal modification or minimal external modification,
restoration, renovation, maintenance, and replacement in-kind to an
existing facility or structure;
(iv) Construction of or substantial improvement to a single-family
dwelling, or a Rural Housing Site Loan project or multi-family housing
project serving up to four families and affecting less than 10 acres of
land;
(v) Siting, construction, and operation of new or additional water
supply wells for residential, farm, or livestock use;
(vi) Replacement of existing water and sewer lines within the
existing right-of-way and as long as the size of pipe is either no
larger than the inner diameter of the existing pipe or is an increased
diameter as required by Federal or state requirements. If a larger pipe
size is required, applicants must provide a copy of written
administrative requirements mandating a minimum pipe diameter from the
regulatory agency with jurisdiction;
(vii) Modifications of an existing water supply well to restore
production in existing commercial well fields, if there would be no
drawdown other than in the immediate vicinity of the pumping well, no
resulting long-term decline of the water table, and no degradation of
the aquifer from the replacement well;
(viii) Burying new facilities for communication purposes in
previously developed, existing rights-of-way and in areas already in or
committed to urbanized development or rural settlements whether
incorporated or unincorporated that are characterized by high human
densities and within contiguous, highly disturbed environments with
human-built features. Covered actions include associated vaults and
pulling and tensioning sites outside rights-of-way in nearby previously
disturbed or developed land;
(ix) Changes to electric transmission lines that involve pole
replacement or structural components only where either the same or
substantially equivalent support structures at the approximate existing
support structure locations are used;
(x) Phase or voltage conversions, reconductoring, upgrading, or
rebuilding of existing electric distribution lines that would not
affect the environment beyond the previously developed, existing
rights-of-way. Includes pole replacements and overhead-to-underground
conversions;
(xi) Collocation of telecommunications equipment on existing
infrastructure and deployment of distributed antenna systems and small
cell networks provided the latter technologies are not attached to and
will not cause adverse effects to historic properties;
(xii) Siting, construction, and operation of small, ground source
heat pump systems that would be located on previously developed land;
(xiii) Siting, construction, and operation of small solar electric
projects or solar thermal projects to be installed on or adjacent to an
existing structure and that would not affect the environment beyond the
previously developed facility area and are not attached to and will not
cause adverse effects to historic properties;
(xiv) Siting, construction, and operation of small biomass
projects, such as animal waste anaerobic digesters or gasifiers, that
would use feedstock produced on site (such as a farm where the site has
been previously disturbed) and supply gas or electricity for the site's
own energy needs with no or only incidental export of energy;
(xv) Construction of small standby electric generating facilities
with a rating of one average megawatt (MW) or less, and associated
facilities, for the purpose of providing emergency power for or startup
of an existing facility;
(xvi) Additions or modifications to electric transmission
facilities that would not affect the environment beyond the previously
developed facility area including, but not limited to, switchyard rock,
grounding upgrades, secondary containment projects, paving projects,
seismic upgrading, tower modifications, changing insulators, and
replacement of poles, circuit breakers, conductors, transformers, and
crossarms; and
(xvii) Safety, environmental, or energy efficiency (including heat
rate efficiency) improvements within an existing electric generation
facility, including addition, replacement, or upgrade of facility
components (such as precipitator, baghouse, or scrubber installations),
that do not result in a change to the design capacity or function of
the facility and do not result in an increase in pollutant emissions,
effluent discharges, or waste products.
(19) (USDA-19c-USFS) Orders issued pursuant to 36 CFR part 261:
Prohibitions to provide short-term resource protection or to protect
public health and safety. Examples include, but are not limited to:
(i) Closing a road to protect bighorn sheep during lambing season,
and
(ii) Closing an area during a period of extreme fire danger.
(20) (USDA-20c-USFS) Rules, regulations, or policies to establish
service-wide administrative procedures, program processes, or
instructions. Examples include, but are not limited to:
(i) Adjusting special use or recreation fees using an existing
formula;
(ii) Proposing a technical or scientific method or procedure for
screening effects of emissions on air quality related values in Class I
wildernesses;
(iii) Proposing a policy to defer payments on certain permits or
contracts to reduce the risk of default;
(iv) Proposing changes in contract terms and conditions or terms
and conditions of special use authorizations;
(v) Establishing a service-wide process for responding to offers to
exchange land and for agreeing on land values; and
(vi) Establishing procedures for amending or revising forest land
and resource management plans.
(21) (USDA-21c-USFS) Repair and maintenance of administrative
sites. Examples include, but are not limited to:
(i) Mowing lawns at a district office;
(ii) Replacing a roof or storage shed;
(iii) Painting a building; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(22) (USDA-22c-USFS) Repair and maintenance of roads, trails, and
landline boundaries. Examples include, but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts
of an established National Forest System (NFS) road;
(ii) Grading a road and clearing the roadside of brush without the
use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and
grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
[[Page 29654]]
(23) (USDA-23c-USFS) Repair and maintenance of recreation sites and
facilities. Examples include, but are not limited to:
(i) Applying registered herbicides to control poison ivy on
infested sites in a campground;
(ii) Applying registered insecticides by compressed air sprayer to
control insects at a recreation site complex;
(iii) Repaving a parking lot; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(24) (USDA-24c-USFS) Acquisition of land or interest in land.
Examples include, but are not limited to:
(i) Accepting the donation of lands or interests in land to the
NFS, and
(ii) Purchasing fee, conservation easement, reserved interest deed,
or other interests in lands.
(25) (USDA-25c-USFS) Sale or exchange of land or interest in land
and resources where resulting land uses remain essentially the same.
Examples include, but are not limited to:
(i) Selling or exchanging land pursuant to the Small Tracts Act;
(ii) Exchanging NFS lands or interests with a State agency, local
government, or other non-Federal party (individual or organization)
with similar resource management objectives and practices;
(iii) Authorizing the Bureau of Land Management to issue leases on
producing wells when mineral rights revert to the United States from
private ownership and there is no change in activity; and
(iv) Exchange of administrative sites involving other than NFS
lands.
(26) (USDA-26c-USFS) Approval, modification, or continuation of
minor, short-term (1 year or less) special uses of NFS lands. Examples
include, but are not limited to:
(i) Approving, on an annual basis, the intermittent use and
occupancy by a State-licensed outfitter or guide;
(ii) Approving the use of NFS land for apiaries; and
(iii) Approving the gathering of forest products for personal use.
(27) (USDA-27c-USFS) Issuance of a new permit for up to the maximum
tenure allowable under the National Forest Ski Area Permit Act of 1986
(16 U.S.C. 497b) for an existing ski area when such issuance is a
purely ministerial action to account for administrative changes, such
as a change in ownership of ski area improvements, expiration of the
current permit, or a change in the statutory authority applicable to
the current permit. Examples include, but are not limited to:
(i) Issuing a permit to a new owner of ski area improvements within
an existing ski area with no changes to the master development plan,
including no changes to the facilities or activities for that ski area;
(ii) Upon expiration of a ski area permit, issuing a new permit to
the holder of the previous permit where the holder is not requesting
any changes to the master development plan, including changes to the
facilities or activities; and
(iii) Issuing a new permit under the National Forest Ski Area
Permit Act of 1986 to the holder of a permit issued under the Term
Permit and Organic Acts, where there are no changes in the type or
scope of activities authorized and no other changes in the master
development plan.
(28) (USDA-28c-USFS) Issuance of a new special use authorization to
replace an existing or expired special use authorization, when such
issuance is to account only for administrative changes, such as a
change in ownership of authorized improvements or expiration of the
current authorization, and where there are no changes to the authorized
facilities or increases in the scope or magnitude of authorized
activities. The applicant or holder must be in compliance with all the
terms and conditions of the existing or expired special use
authorization. Subject to the foregoing conditions, examples include,
but are not limited to:
(i) Issuing a new authorization to replace a powerline facility
authorization that is at the end of its term;
(ii) Issuing a new permit to replace an expired permit for a road
that continues to be used as access to non-NFS lands; and
(iii) Converting a transitional priority use outfitting and guiding
permit to a priority use outfitting and guiding permit.
(29) (USDA-29c-USFS) Issuance of a new authorization or amendment
of an existing authorization for recreation special uses that occur on
existing roads or trails, in existing facilities, in existing
recreation sites, or in areas where such activities are allowed.
Subject to the foregoing condition, examples include, but are not
limited to:
(i) Issuance of an outfitting and guiding permit for mountain
biking on NFS trails that are not closed to mountain biking;
(ii) Issuance of a permit to host a competitive motorcycle event;
(iii) Issuance of an outfitting and guiding permit for backcountry
skiing;
(iv) Issuance of a permit for a one-time use of existing facilities
for other recreational events; and
(v) Issuance of a campground concession permit for an existing
campground that has previously been operated by the Forest Service.
(30) (USDA-30c-FSA) FSA Loan Actions
(i) Closing cost payments;
(ii) Commodity loans;
(iii) Debt set asides;
(iv) Deferral of loan payments;
(v) Youth loans;
(vi) Loan consolidation;
(vii) Loans for annual operating expenses, except livestock;
(viii) Loans for equipment;
(ix) Loans for family living expenses;
(x) Loan subordination, with no or minimal construction below the
depth of previous tillage or ground disturbance, and no change in
operations, including, but not limited to, an increase in animal
numbers to exceed the current CAFO designation (as defined by the U.S.
Environmental Protection Agency in 40 CFR 122.23);
(xi) Loans to pay for labor costs;
(xii) Loan (debt) transfers and assumptions with no new ground
disturbance;
(xiii) Partial or complete release of loan collateral;
(xiv) Re-amortization of loans;
(xv) Refinancing of debt;
(xvi) Rescheduling loans;
(xvii) Restructuring of loans; and
(xviii) Writing down of debt.
(xiv) Farm storage and drying facility loans for added capacity;
(xx) Loans for livestock purchases;
(xxi) Release of loan security for forestry purposes;
(xxii) Reorganizing farm operations; and
(xxiii) Replacement building loans;
(xxiv) Loans and loan subordination with construction, demolition,
or ground disturbance planned;
(xxv) Real estate purchase loans with new ground disturbance
planned; and
(xxvi) Term operating loans with construction or demolition
planned;
(31) (USDA-31c-RD) The promulgation of rules or formal notices for
policies or programs that are administrative or financial procedures
for implementing Agency assistance activities.
(32) (USDA-32c-RD) Agency proposals for legislation that have no
potential for significant environmental impacts because they would
allow for no or minimal construction or change in operations.
(d) The following categorical exclusions require NEPA
documentation, which will be completed as set forth at Sec. 1b.3(g).
(1) (USDA-01d-FSA) Construction or ground disturbance actions.
[[Page 29655]]
(i) Bridges;
(ii) Chiseling and subsoiling in areas not previously tilled;
(iii) Construction of a new farm storage facility;
(iv) Dams;
(v) Dikes and levees;
(vi) Diversions;
(vii) Drop spillways;
(viii) Dugouts;
(ix) Excavation;
(x) Grade stabilization structures;
(xi) Grading, leveling, shaping and filling in areas or to depths
not previously disturbed;
(xii) Installation of structures designed to regulate water flow
such as pipes, flashboard risers, gates, chutes, and outlets;
(xiii) Irrigation systems;
(xiv) Land smoothing;
(xv) Line waterways or outlets;
(xvi) Lining;
(xvii) Livestock crossing facilities;
(xviii) Pesticide containment facility;
(xix) Pipe drop;
(xx) Pipeline for watering facility;
(xxi) Ponds, including sealing and lining;
(xxii) Precision land farming with ground disturbance;
(xxiii) Riparian buffer establishment;
(xxiv) Roads, including access roads;
(xxv) Rock barriers;
(xxvi) Rock filled infiltration trenches;
(xxvii) Sediment basin;
(xxviii) Sediment structures;
(xxix) Site preparation for planting or seeding in areas not
previously tilled;
(xxx) Soil and water conservation structures;
(xxxi) Stream bank and shoreline protection;
(xxxii) Structures for water control;
(xxxiii) Subsurface drains;
(xxxiv) Surface roughening;
(xxxv) Terracing;
(xxxvi) Underground outlets;
(xxxvii) Watering tank or trough installation, if in areas not
previously disturbed;
(xxxviii) Wells; and
(xxxix) Wetland restoration.
(2) (USDA-02d-FSA) Management and planting type actions.
(i) Establishing or maintaining wildlife plots in areas not
previously tilled or disturbed;
(ii) Prescribed burning;
(iii) Tree planting when trees have root balls of one gallon
container size or larger; and
(iv) Wildlife upland habitat management.
(3) (USDA-03d-NRCS) Planting appropriate herbaceous and woody
vegetation, which does not include noxious weeds or invasive plants, on
disturbed sites to restore and maintain the sites ecological functions
and services.
(4) (USDA-04d-NRCS) Removing dikes and associated appurtenances
(such as culverts, pipes, valves, gates, and fencing) to allow waters
to access floodplains to the extent that existed prior to the
installation of such dikes and associated appurtenances.
(5) (USDA-05d-NRCS) Plugging and filling excavated drainage ditches
to allow hydrologic conditions to return to pre-drainage conditions to
the extent practicable.
(6) (USDA-06d-NRCS) Replacing and repairing existing culverts,
grade stabilization, and water control structures and other small
structures that were damaged by natural disasters where there is no new
depth required and only minimal dredging, excavation, or placement of
fill is required.
(7) (USDA-07d-NRCS) Restoring the natural topographic features of
agricultural fields that were altered by farming and ranching
activities for the purpose of restoring ecological processes.
(8) (USDA-08d-NRCS) Removing or relocating residential, commercial,
and other public and private buildings and associated structures
constructed in the 100-year floodplain or within the breach inundation
area of an existing dam or other flood control structure in order to
restore natural hydrologic conditions of inundation or saturation,
vegetation, or reduce hazards posed to public safety.
(9) (USDA-09d-NRCS) Removing storm debris and sediment following a
natural disaster where there is a continuing and eminent threat to
public health or safety, property, and natural and cultural resources
and removal is necessary to restore lands to pre-disaster conditions to
the extent practicable. Excavation will not exceed the pre-disaster
condition.
(10) (USDA-10d-NRCS) Stabilizing stream banks and associated
structures to reduce erosion through bioengineering techniques
following a natural disaster to restore pre-disaster conditions to the
extent practicable, e.g., utilization of living and nonliving plant
materials in combination with natural and synthetic support materials,
such as rocks, rip-rap, geo-textiles, for slope stabilization, erosion
reduction, and vegetative establishment and establishment of
appropriate plant communities (bank shaping and planting, brush
mattresses, log, root wad, and boulder stabilization methods).
(11) (USDA-11d-NRCS) Repairing or maintenance of existing small
structures or improvements (including structures and improvements
utilized to restore disturbed or altered wetland, riparian, in stream,
or native habitat conditions). Examples of such activities include the
repair or stabilization of existing stream crossings for livestock or
human passage, levees, culverts, berms, dikes, and associated
appurtenances.
(12) (USDA-12d-NRCS) Constructing small structures or improvements
for the restoration of wetland, riparian, in stream, or native
habitats. Examples of activities include installation of fences and
construction of small berms, dikes, and associated water control
structures.
(13) (USDA-13d-NRCS) Restoring an ecosystem, fish and wildlife
habitat, biotic community, or population of living resources to a
determinable pre-impact condition.
(14) (USDA-14d-NRCS) Repairing or maintenance of existing
constructed fish passageways, such as fish ladders or spawning areas
impacted by natural disasters or human alteration.
(15) (USDA-15d-NRCS) Repairing, maintaining, or installing fish
screens to existing structures.
(16) (USDA-16d-NRCS) Repairing or maintaining principal spillways
and appurtenances associated with existing serviceable dams, originally
constructed to NRCS standards, in order to meet current safety
standards. Work will be confined to the construction footprint of the
dam, and no major change in reservoir or downstream operations will
result.
(17) (USDA-17d-NRCS) Repairing or improving (deepening/widening/
armoring) existing auxiliary/emergency spillways associated with dams,
originally constructed to NRCS standards, in order to meet current
safety standards. Work will be confined to the construction footprint
of the dam or abutment areas, and no major change in reservoir or
downstream operation will result.
(18) (USDA-18d-NRCS) Repairing embankment slope failures on
structures or reshaping the embankment, originally built to NRCS
standards, where the work is confined to the embankment or abutment
areas.
(19) (USDA-19d-NRCS) Increasing the freeboard (which is the height
from the auxiliary (emergency) spillway crest to the top of embankment)
of an existing dam or dike, originally built to NRCS standards, by
raising the top elevation in order to meet current safety and
performance standards. The purpose of the safety standard and
associated work is to ensure that during extreme rainfall events, flows
are confined to the auxiliary/emergency spillway so that the existing
structure is not overtopped which may result in a catastrophic failure.
Elevating the top of the dam will
[[Page 29656]]
not result in an increase to lake or stream levels. Work will be
confined to the construction footprint of the dam and abutment areas,
and no major change in reservoir operations will result. Examples of
work may include the addition of fill material such as earth or gravel
or placement of parapet walls.
(20) (USDA-20d-NRCS) Modifying existing residential, commercial,
and other public and private buildings to prevent flood damages, such
as elevating structures or sealing basements to comply with current
State safety standards and Federal performance standards.
(21) (USDA-21d-NRCS) Undertaking minor agricultural practices to
maintain and restore ecological conditions in floodplains after a
natural disaster or on lands impacted by human alteration. Examples of
these practices include: mowing, haying, grazing, fencing, off-stream
watering facilities, and invasive species control which are undertaken
when fish and wildlife are not breeding, nesting, rearing young, or
during other sensitive timeframes.
(22) (USDA-22d-NRCS) Implementing soil control measures on existing
agricultural lands, such as grade stabilization structures (pipe
drops), sediment basins, terraces, grassed waterways, filter strips,
riparian forest buffer, and critical area planting.
(23) (USDA-23d-NRCS) Implementing water conservation activities on
existing agricultural lands, such as minor irrigation land leveling,
irrigation water conveyance (pipelines), irrigation water control
structures, and various management practices.
(24) The CEs in this section are for proposals for financial
assistance that require an applicant to submit environmental
documentation with their application to facilitate agency determination
of extraordinary circumstances. At a minimum, the environmental
documentation will include a complete description of all components of
the applicant's proposal and any connected actions, including its
specific location on detailed site plans as well as location maps
equivalent to a U.S. Geological Survey (USGS) quadrangle map; and
information from authoritative sources acceptable to the agency
confirming the presence or absence of sensitive environmental resources
in the area that could be affected by the applicant's proposal. The
environmental documentation submitted must be accurate, complete, and
capable of verification. The agency may request additional information
as needed to make an environmental determination. Failure to submit the
required environmental documentation will postpone further
consideration of the applicant's proposal until the environmental
documentation is submitted, or the agency may deny the request for
financial assistance. The agency will review the environmental
documentation and determine if extraordinary circumstances exist. The
agency's review may determine that classification as an environmental
assessment or an environmental impact statement is more appropriate
than a categorical exclusion classification.
(i) (USDA-24-1d-RD) Small-scale site-specific development. The
following CEs apply to proposals where site development activities
(including construction, expansion, repair, rehabilitation, or other
improvements) for rural development purposes would impact not more than
10 acres of real property and would not cause a substantial increase in
traffic. These CEs are identified in subparagraphs (A) through (J) of
this subparagraph (i). This paragraph does not apply to new industrial
proposals (such as ethanol and biodiesel production facilities).
(A) Multi-family housing and Rural Housing Site Loans.
(B) Business development.
(C) Community facilities such as municipal buildings, libraries,
security services, fire protection, schools, and health and recreation
facilities.
(D) Infrastructure to support utility systems such as water or
wastewater facilities; headquarters, maintenance, equipment storage, or
microwave facilities; and energy management systems.
(E) Installation of new, commercial-scale water supply wells and
associated pipelines or water storage facilities that are required by a
regulatory authority or standard engineering practice as a backup to
existing production well(s) or as reserve for fire protection.
(F) Construction of telecommunications towers and associated
facilities, if the towers and associated facilities are 450 feet or
less in height and would not be in or visible from an area of
documented scenic value.
(G) Repair, rehabilitation, or restoration of water control, flood
control, or water impoundment facilities, such as dams, dikes, levees,
detention reservoirs, and drainage ditches, with minimal change in use,
size, capacity, purpose, operation, location, or design from the
original facility.
(H) Installation or enlargement of irrigation facilities on an
applicant's land, including storage reservoirs, diversion dams, wells,
pumping plants, canals, pipelines, and sprinklers designed to irrigate
less than 80 acres.
(I) Replacement or restoration of irrigation facilities, including
storage reservoirs, diversion dams, wells, pumping plants, canals,
pipelines, and sprinklers, with no or minimal change in use, size,
capacity, or location from the original facility(s).
(J) Vegetative biomass harvesting operations of no more than 15
acres, provided any amount of land involved in harvesting is to be
conducted managed on a sustainable basis and according to a Federal,
state, or other governmental unit approved management plan.
(ii) (USDA-24-2d-RD) Financial assistance for small-scale corridor
development.
(A) Construction or repair of roads, streets, and sidewalks,
including related structures such as curbs, gutters, storm drains, and
bridges, in an existing right-of-way with minimal change in use, size,
capacity, purpose, or location from the original infrastructure;
(B) Improvement and expansion of existing water, wastewater, and
gas utility systems: within 20 miles of currently served areas
irrespective of the percent of increase in new capacity;
(C) Replacement of utility lines where road reconstruction
undertaken by non-Agency applicants requires the relocation of lines
either within or immediately adjacent to the new road easement or
right-of-way; and
(D) Installation of new linear telecommunications facilities and
related equipment and infrastructure.
(iii) (USDA-24-3d-RD) Financial assistance for small-scale energy
proposals.
(A) Construction of electric power substations (including switching
stations and support facilities) or modification of existing
substations, switchyards, and support facilities;
(B) Construction of electric power lines and associated facilities
designed for or capable of operation at a nominal voltage of either:
(1) Less than 69 kilovolts (kV);
(2) Less than 230 kV if no more than 25 miles of line are involved;
or
(3) 230 kV or greater involving no more than three miles of line,
but not for the integration of major new generation resources into a
bulk transmission system;
(C) Reconstruction (upgrading or rebuilding) or minor relocation of
existing electric transmission lines (230 kV or less) 25 miles in
length or less to enhance environmental and land use values or to
improve reliability or access. Such actions include relocations to
avoid right-of-way encroachments,
[[Page 29657]]
resolve conflict with property development, accommodate road/highway
construction, allow for the construction of facilities such as canals
and pipelines, or reduce existing impacts on environmentally sensitive
areas;
(D) Repowering or uprating modifications or expansion of an
existing unit(s) up to a rating of 50 average MW at electric generating
facilities in order to maintain or improve the efficiency, capacity, or
energy output of the facility. Any air emissions from such activities
must be within the limits of an existing air permit;
(E) Installation of new generating units or replacement of existing
generating units at an existing hydroelectric facility or dam which
results in no change in the normal maximum surface area or normal
maximum surface elevation of the existing impoundment. All supporting
facilities and new related electric transmission lines 10 miles in
length or less are included;
(F) Installation of a heat recovery steam generator and steam
turbine with a rating of 200 average MW or less on an existing electric
generation site for the purpose of combined cycle operations. All
supporting facilities and new related electric transmission lines 10
miles in length or less are included;
(G) Construction of small electric generating facilities (except
geothermal and solar electric projects), including those fueled with
wind or biomass, with a rating of 10 average MW or less. All supporting
facilities and new related electric transmission lines 10 miles in
length or less are included;
(H) Siting, construction, and operation of small biomass projects
(except small electric generating facilities projects fueled with
biomass) producing not more than 3 million gallons of liquid fuel or
300,000 million British thermal units annually, developed on up 10
acres of land;
(I) Geothermal electric power projects or geothermal heating or
cooling projects developed on up to 10 acres of land and including
installation of one geothermal well for the production of geothermal
fluids for direct use application (such as space or water heating/
cooling) or for power generation. All supporting facilities and new
related electric transmission lines 10 miles in length or less are
included;
(J) Solar electric projects or solar thermal projects developed on
up to 10 acres of land including all supporting facilities and new
related electric transmission lines 10 miles in length or less;
(K) Distributed resources of any capacity located at or adjacent to
an existing landfill site or wastewater treatment facility that is
powered by refuse-derived fuel. All supporting facilities and new
related electric transmission lines 10 miles in length or less are
included;
(L) Small conduit hydroelectric facilities having a total installed
capacity of not more than 5 average MW using an existing conduit such
as an irrigation ditch or a pipe into which a turbine would be placed
for the purpose of electric generation. All supporting facilities and
new related electric transmission lines 10 miles in length or less are
included; and
(M) Modifications or enhancements to existing facilities or
structures that would not substantially change the footprint or
function of the facility or structure and that are undertaken for the
purpose of improving energy efficiency (including heat rate
efficiency), promoting pollution prevention or control, safety,
reliability, or security. This includes, but is not limited to,
retrofitting existing facilities to produce biofuels and replacing
fossil fuels used to produce heat or power in biorefineries with
renewable biomass. This also includes installation of fuel blender
pumps and associated changes within an existing fuel facility.
(25) (USDA-25d-RD) Repairs made because of an emergency situation
to return to service damaged facilities of an applicant's utility
system or other actions necessary to preserve life and control the
immediate impacts of the emergency.
(26) (USDA-26d-USFS) Construction and reconstruction of trails.
Examples include, but are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook,
and
(ii) Reconstructing an existing trail to allow use by handicapped
individuals.
(27) (USDA-27d-USFS) Additional construction or reconstruction of
existing telephone or utility lines in a designated corridor. Examples
include, but are not limited to:
(i) Replacing an underground cable trunk and adding additional
phone lines, and
(ii) Reconstructing a power line by replacing poles and wires.
(28) (USDA-28d-USFS) Approval, modification, or continuation of
special uses that require less than 20 acres of NFS lands. Subject to
the preceding condition, examples include but are not limited to:
(i) Approving the construction of a meteorological sampling site;
(ii) Approving the use of land for a one-time group event;
(iii) Approving the construction of temporary facilities for
filming of staged or natural events or studies of natural or cultural
history;
(iv) Approving the use of land for a utility corridor that crosses
a national forest;
(v) Approving the installation of a driveway or other facilities
incidental to use of a private residence; and
(vi) Approving new or additional communication facilities,
associated improvements, or communication uses at a site already
identified as available for these purposes.
(29) (USDA-29d-USFS) Regeneration of an area to native tree
species, including site preparation that does not involve the use of
herbicides or result in vegetation type conversion. Examples include,
but are not limited to:
(i) Planting seedlings of superior trees in a progeny test site to
evaluate genetic worth, and
(ii) Planting trees or mechanical seed dispersal of native tree
species following a fire, flood, or landslide.
(30) (USDA-30d-USFS) Timber stand and/or wildlife habitat
improvement activities that do not include the use of herbicides or do
not require more than 1 mile of low standard road construction.
Examples include, but are not limited to:
(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire
hazard including the opening of an existing road to a dense timber
stand;
(iii) Prescribed burning to control understory hardwoods in stands
of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve
plant vigor.
(31) (USDA-31d-USFS) Modification or maintenance of stream or lake
aquatic habitat improvement structures using native materials or normal
practices. Examples include, but are not limited to:
(i) Reconstructing a gabion with stone from a nearby source;
(ii) Adding brush to lake fish beds; and
(iii) Cleaning and resurfacing a fish ladder at a hydroelectric
dam.
(32) (USDA-32d-USFS) Short-term (1 year or less) mineral, energy,
or geophysical investigations and their incidental support activities
that may require cross-country travel by vehicles and equipment,
construction of less than 1 mile of low standard road, or use and minor
repair of existing roads. Examples include, but are not limited to:
(i) Authorizing geophysical investigations which use existing roads
[[Page 29658]]
that may require incidental repair to reach sites for drilling core
holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or
surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for
investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an
approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of
an existing road and the construction of 1-3 mile of temporary road;
clearing vegetation from an acre of land for trenches, drill pads, or
support facilities.
(33) (USDA-33d-USFS) Implementation or modification of minor
management practices to improve allotment condition or animal
distribution. Examples include, but are not limited to:
(i) Rebuilding a fence to improve animal distribution;
(ii) Adding a stock watering facility to an existing water line;
and
(iii) Spot seeding native species of grass or applying lime to
maintain forage condition.
(34) (USDA-34d-USFS) Post-fire rehabilitation activities, not to
exceed 4,200 acres (such as tree planting, fence replacement, habitat
restoration, heritage site restoration, repair of roads and trails, and
repair of damage to minor facilities such as campgrounds), to repair or
improve lands unlikely to recover to a management approved condition
from wildland fire damage, or to repair or replace minor facilities
damaged by fire. Such activities:
(i) Shall be conducted consistent with Agency and departmental
procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(iii) Shall be completed within 3 years following a wildland fire.
(35) (USDA-35d-USFS) Harvest of live trees not to exceed 70 acres,
requiring no more than \1/2\ mile of temporary road construction. Do
not use this category for even-aged regeneration harvest or vegetation
type conversion. The proposed action may include incidental removal of
trees for landings, skid trails, and road clearing. Examples include,
but are not limited to:
(i) Removal of individual trees for sawlogs, specialty products, or
fuelwood, and
(ii) Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
(36) (USDA-36d-USFS) Salvage of dead and/or dying trees not to
exceed 250 acres, requiring no more than \1/2\ mile of temporary road
construction. The proposed action may include incidental removal of
live or dead trees for landings, skid trails, and road clearing.
Examples include, but are not limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice event
and construction of a short temporary road to access the damaged trees,
and
(ii) Harvest of fire-damaged trees.
(37) (USDA-37d-USFS) Commercial and non-commercial sanitation
harvest of trees to control insects or disease not to exceed 250 acres,
requiring no more than \1/2\ mile of temporary road construction,
including removal of infested/infected trees and adjacent live
uninfested/uninfected trees as determined necessary to control the
spread of insects or disease. The proposed action may include
incidental removal of live or dead trees for landings, skid trails, and
road clearing. Examples include, but are not limited to:
(i) Felling and harvest of trees infested with southern pine
beetles and immediately adjacent uninfested trees to control expanding
spot infestations, and
(ii) Removal and/or destruction of infested trees affected by a new
exotic insect or disease, such as emerald ash borer, Asian long horned
beetle, and sudden oak death pathogen.
(38) (USDA-38d-USFS) Land management plans, plan amendments, and
plan revisions developed in accordance with 36 CFR part 219 et seq.
that provide broad guidance and information for project and activity
decision-making in a NFS unit. (The plan approval document required by
36 CFR part 219 satisfies the documentation requirement for this
categorical exclusion.) Proposals for actions that approve projects and
activities, or that command anyone to refrain from undertaking projects
and activities, or that grant, withhold or modify contracts, permits or
other formal legal instruments, are outside the scope of this category
and shall be considered separately under USDA NEPA procedures.
(39) (USDA-39d-USFS) Approval of a Surface Use Plan of Operations
for oil and natural gas exploration and initial development activities,
associated with or adjacent to a new oil and/or gas field or area, so
long as the approval will not authorize activities in excess of any of
the following:
(i) One mile of new road construction;
(ii) One mile of road reconstruction;
(iii) Three miles of individual or co-located pipelines and/or
utilities disturbance; or
(iv) Four drill sites.
(40) (USDA-40d-USFS) Restoring wetlands, streams, riparian areas or
other water bodies by removing, replacing, or modifying water control
structures such as, but not limited to, dams, levees, dikes, ditches,
culverts, pipes, drainage tiles, valves, gates, and fencing, to allow
waters to flow into natural channels and floodplains and restore
natural flow regimes to the extent practicable where valid existing
rights or special use authorizations are not unilaterally altered or
canceled. Examples include but are not limited to:
(i) Repairing an existing water control structure that is no longer
functioning properly with minimal dredging, excavation, or placement of
fill, and does not involve releasing hazardous substances;
(ii) Installing a newly-designed structure that replaces an
existing culvert to improve aquatic organism passage and prevent
resource and property damage where the road or trail maintenance level
does not change;
(iii) Removing a culvert and installing a bridge to improve aquatic
and/or terrestrial organism passage or prevent resource or property
damage where the road or trail maintenance level does not change; and
(iv) Removing a small earthen and rock fill dam with a low hazard
potential classification that is no longer needed.
(41) (USDA-41d-USFS) Removing and/or relocating debris and sediment
following disturbance events (such as floods, hurricanes, tornados,
mechanical/engineering failures, etc.) to restore uplands, wetlands, or
riparian systems to pre-disturbance conditions, to the extent
practicable, such that site conditions will not impede or negatively
alter natural processes. Examples include but are not limited to:
(i) Removing an unstable debris jam on a river following a flood
event and relocating it back in the floodplain and stream channel to
restore water flow and local bank stability;
(ii) Clean-up and removal of infrastructure flood debris, such as,
benches, tables, outhouses, concrete, culverts, and asphalt following a
hurricane from a stream reach and adjacent wetland area; and
(iii) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering
[[Page 29659]]
techniques following a flood event, including the use of living and
nonliving plant materials in combination with natural and synthetic
support materials, such as rocks, riprap, geo-textiles, for slope
stabilization, erosion reduction, and vegetative establishment and
establishment of appropriate plant communities (bank shaping and
planting, brush mattresses, log, root wad, and boulder stabilization
methods).
(42) (USDA-42d-USFS) Activities that restore, rehabilitate, or
stabilize lands occupied by roads and trails, including unauthorized
roads and trails and National Forest System (NFS) roads and NFS trails,
to a more natural condition that may include removing, replacing, or
modifying drainage structures and ditches, reestablishing vegetation,
reshaping natural contours and slopes, reestablishing drainage-ways, or
other activities that would restore site productivity and reduce
environmental impacts. Examples include but are not limited to:
(i) Decommissioning a road to a more natural state by restoring
natural contours and removing construction fills, loosening compacted
soils, revegetating the roadbed and removing ditches and culverts to
reestablish natural drainage patterns;
(ii) Restoring a trail to a natural state by reestablishing natural
drainage patterns, stabilizing slopes, reestablishing vegetation, and
installing water bars; and
(iii) Installing boulders, logs, and berms on a road segment to
promote naturally regenerated grass, shrub, and tree growth.
[…truncated; see source link]Indexed from Federal Register on July 3, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.