Rule2026-06537
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
April 3, 2026
Effective
April 3, 2026
Issuing agencies
Agriculture Department
Abstract
The U.S. Department of Agriculture (USDA) is adopting the interim final rule (IFR) published on July 3, 2025, with minor changes, as final. The IFR revised departmental regulations implementing the National Environmental Policy Act (NEPA) and removed various USDA agency regulations for implementing NEPA. The IFR was in response to the Council on Environmental Quality's (CEQ) rescission of its NEPA implementing regulations (which USDA's NEPA regulations were designed to supplement), statutory changes to NEPA, executive orders, and case law. In the IFR, USDA provided a 30-day comment period for the public to review and make comments. This final rule addresses public comments and adopts as final the IFR, with certain substantive changes as explained herein.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 64 (Friday, April 3, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 64 (Friday, April 3, 2026)]
[Rules and Regulations]
[Pages 17062-17122]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-06537]
[[Page 17061]]
Vol. 91
Friday,
No. 64
April 3, 2026
Part II
Department of Agriculture
-----------------------------------------------------------------------
7 CFR Part 1b
National Environmental Policy Act; Final Rule
Federal Register / Vol. 91, No. 64 / Friday, April 3, 2026 / Rules
and Regulations
[[Page 17062]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 1b
[USDA-2025-0008]
RIN 0503-AA86
National Environmental Policy Act
AGENCY: Agriculture (USDA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is adopting the
interim final rule (IFR) published on July 3, 2025, with minor changes,
as final. The IFR revised departmental regulations implementing the
National Environmental Policy Act (NEPA) and removed various USDA
agency regulations for implementing NEPA. The IFR was in response to
the Council on Environmental Quality's (CEQ) rescission of its NEPA
implementing regulations (which USDA's NEPA regulations were designed
to supplement), statutory changes to NEPA, executive orders, and case
law. In the IFR, USDA provided a 30-day comment period for the public
to review and make comments. This final rule addresses public comments
and adopts as final the IFR, with certain substantive changes as
explained herein.
DATES: This final rule is effective April 3, 2026.
FOR FURTHER INFORMATION CONTACT: Scott Vandegrift, Chief Environmental
Review and Permitting Officer, Office of the Secretary, 202-720-5166,
<a href="/cdn-cgi/l/email-protection#a0f3ed8eeff3e5e38eeef2e58eeee5f0e1e0d5d3c4c18ec7cfd6"><span class="__cf_email__" data-cfemail="c3908eed8c908680ed8d9186ed8d86938283b6b0a7a2eda4acb5">[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: The following acronyms are used frequently:
APA--Administrative Procedure Act
CE--Categorical Exclusion
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
EA--Environmental Assessment
EIS--Environmental Impact Statement
E.O.--Executive Order
FANEC--Finding of Applicability and No Extraordinary Circumstance
FONSI--Finding of No Significant Impact
FRA--Fiscal Responsibility Act of 2023
IFR--Interim Final Rule
NEPA--National Environmental Policy Act
ROD--Record of Decision
U.S.C.--United States Code
USDA--U.S. Department of Agriculture
I. Background
On February 25, 2025, CEQ issued an interim final rule rescinding
their regulations in response to Executive Order (E.O.) 14154,
Unleashing American Energy.
CEQ's interim final rule (IFR) rescinded its NEPA implementing
regulations, including 40 CFR parts 1500, 1501, 1502, 1503, 1504, 1505,
1506, 1507, and 1508. The effective date of CEQ's interim rule was
April 11, 2025. The background of CEQ's regulations, recent litigation,
and relevant executive orders leading up to their February 25, 2025,
IFR support the rationale underlying this final rule. CEQ published a
final rule on January 8, 2026, affirming their IFR.
The Department of Agriculture (USDA) is issuing this final rule to
affirm its IFR that revised, moved and republished, or removed portions
of USDA's existing regulations for implementing the National
Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321-4347, as
amended by the Fiscal Responsibility Act of 2023 (FRA), as well as add
new portions to the USDA NEPA implementing regulations. USDA issued the
IFR for three independent reasons, and those reasons remain valid.
First, CEQ's regulations were repealed effective April 11, 2025;
see Removal of National Environmental Policy Act Implementing
Regulations, 90 FR 10610 (Feb. 25, 2025). USDA and its agencies'
regulations were promulgated as a ``supplement'' that ``incorporates
and adopts'' the CEQ's NEPA regulations, see 7 CFR 1b.1(a). However,
the CEQ regulations (40 CFR parts 1500 through 1508) no longer provided
a valid foundation for USDA NEPA regulations.
Second, Congress recently amended NEPA in significant part, in the
FRA, Public Law 118-5, signed on June 3, 2023, in which Congress added
substantial detail and direction in Title I of NEPA regarding
procedural issues that CEQ and individual acting agencies had
previously addressed in their own procedures. USDA recognized the need
to update its regulations considering these significant legislative
changes. Since USDA's regulations were originally designed as a
supplement to CEQ's NEPA regulations, USDA had been awaiting CEQ action
before revising its regulations, consistent with CEQ direction. See 40
CFR 1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However,
with CEQ's regulations rescinded, and with USDA's NEPA implementing
regulations then unmodified more than two years after this significant
legislative overhaul, it was exigent that USDA move quickly to conform
its regulations to the statute as amended.
And third, the U.S. Supreme Court recently issued a landmark
decision in Seven County Infrastructure Coalition v. Eagle County,
Colorado, 145 S. Ct. 1497 (2025), in which it decried the
``transform[ation]'' of NEPA from its roots as ``a modest procedural
requirement,'' into a significant ``substantive roadblock'' that
``paralyze[s]'' ``agency decision-making''. Id. at 1507, 1513
(quotations omitted). The Supreme Court explained that part of that
problem had been caused by decisions of lower courts, which it
rejected, issuing a ``course correction'' mandating that courts give
``substantial deference'' to reasonable agency conclusions underlying
its NEPA process. Id. at 1513-14. But the Court also acknowledged, and
through its course correction sought to address, the effect on
``litigation-averse agencies'' which, in light of judicial
``micromanage[ment],'' had been ``tak[ing] ever more time and [ ]
prepar[ing] ever longer EISs [environmental impact statements] for
future projects''. Id. at 1513. USDA incorporated this case's holdings
into these regulations, availing itself of the latest information and
guidance from the Court for its future NEPA application.
For these reasons USDA published an IFR to revise, move and
republish, or remove portions of the USDA NEPA implementing
regulations, as well as add new portions, given the CEQ NEPA
regulations no longer provide a foundation for USDA NEPA regulations
and leave the Department without necessary interpretation of, and
implementing regulations for, NEPA (90 FR 29632 (July 3, 2025)). In the
IFR preamble, USDA addressed how NEPA is a vital part of Federal agency
planning and decision-making, and explained that USDA agencies need
clear standards and guidelines as soon as possible to conduct the work
of providing critical services and funds to Americans, as directed by
Congress. USDA is affirming the final rule for these same reasons.
In publishing the IFR, USDA found that notice and comment was not
required because the rule was interpretive or a rule of agency
procedure or practice under 5 U.S.C 553(b)(A) and that, to the extent
prior notice and solicitation of public comment would otherwise be
required or this action could not immediately take effect, the need to
expeditiously replace its existing rules satisfied the ``good cause''
exceptions in 5 U.S.C. 553(b)(B) and (d). The Administrative Procedure
Act (APA) authorizes agencies to issue regulations without notice and
public comment when an agency finds, for good cause, that notice
[[Page 17063]]
and comment is ``impracticable, unnecessary, or contrary to the public
interest,'' 5 U.S.C. 553(b)(B), and to make the rule effective
immediately for good cause. 5 U.S.C. 553(d)(3). USDA's prior rules were
promulgated as a ``supplement[ ]'' to the CEQ's NEPA regulations, and
USDA also ``adopt[ed]'' the CEQ's regulations by incorporation.
Following the rescission of CEQ's regulations, USDA's current rules
were left to supplement a NEPA framework that no longer exists.
That being so, rescinding the old regulations immediately without
replacing them would have created a vacuum that would inflict immense
uncertainty on agencies and regulated parties and potentially grind all
projects under USDA's purview to a halt. This could have had
significant economic effects on USDA's customers due to delays in
approvals or investing in projects that could be subject to legal
challenges from not having clear uniform NEPA standards, which could
have also been delayed. Therefore, pairing the rescission with a new
structure immediately was absolutely critical. Because of this need for
speed and certainty, notice-and-comment was, to the extent it was
otherwise required at all, impracticable and contrary to the public
interest.
For the same reasons stated in the present section, above, USDA
found that ``good cause'' existed under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
The IFR was accordingly effective immediately. USDA voluntarily took
comments on the IFR. USDA requested and encouraged public comments on
the IFR with the rationale that comments may inform USDA's decision
making during this time of substantial regulatory change.
Several commenters stated that the IFR is subject to the APA, which
they allege requires public notice and comment when issuing, amending,
or rescinding a rule through informal rulemaking processes unless one
of two exceptions applies. These commenters disagreed with USDA's
determination that the IFR is procedural or interpretive in nature, and
that USDA had good cause that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest. These
commenters deemed the voluntary 30-day comment period insufficient and
requested that the comment period for the IFR be extended given the
amount of content to review for not only the USDA IFR, but for those
IFRs related to NEPA implementing regulations and procedures published
by other departments/agencies at the same time. Other commenters agreed
with USDA's good cause rationale regarding the comment period and
encouraged USDA to publish a final rule as soon as possible.
As described in the IFR preamble, USDA maintains that notice and
comment was not required because the rulemaking fell within various
exceptions to the notice-and-comment requirement. See 5 U.S.C. 553(b).
The APA did not require USDA to publish a notice of proposed rulemaking
and consider public comments before the effective date of the rule
because three separate exceptions to the APA's general requirement
apply here: (1) the USDA departmental and agency-specific NEPA
regulations were procedural only and did not dictate or preclude any
specific actions that could be taken; rather, the legacy USDA
departmental and agency-specific NEPA regulations prescribed processes
for USDA and agencies to follow when complying with NEPA; (2) the
legacy USDA departmental and agency-specific NEPA regulations merely
provided an interpretation of a statute rather than making
discretionary policy choices establishing enforceable rights or
obligations for regulated parties; and (3) good cause exists to forgo
notice-and-comment procedures and put the rule into immediate effect
because the legacy USDA departmental and agency-specific NEPA
regulations were expressly promulgated to supplement CEQ's NEPA
regulations.
Following the rescission of CEQ's NEPA regulations, USDA and its
agencies were left with vestigial NEPA regulations that
``supplemented'' a CEQ regulatory regime that no longer existed, which
was not tenable and could have caused significant economic harm to
USDA's customers. 5 U.S.C. 553(b)(A)-(B). Portions of this rulemaking
also include general statements of policy. 5 U.S.C. 553(b)(A).
Regardless, USDA did provide notice and an opportunity to comment on
the IFR for a 30-day period. USDA determined that 30 days was adequate
because the scope of the IFR was limited to revising or rescinding
previously promulgated USDA departmental and agency-specific NEPA
regulations. Moreover, USDA monitored and posted the comments as they
were received. The public comment period concluded on August 4, 2025.
Furthermore, USDA's IFR contained all the elements of a notice of
proposed rulemaking as required by the APA. 5 U.S.C. 553(b); see also
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
591 U.S. 657 (2020). USDA explained its position with sufficient detail
to put the public on notice that it was revising the departmental NEPA
regulations and rescinding the seven agency-specific regulations and
provided its rationale along with an opportunity to comment. The public
understood the action USDA was taking and took advantage of the
opportunity to comment.
USDA issued two corrections during the comment period. The first
was to change the erroneous citation to 7 CFR 2407 to the correct
citation of 7 CFR 3407 and correct numbering of items listed in Sec.
1b.4 by redesignating the second paragraph (c)(30)(xiv) as (c)(30)(xix)
(90 FR 33871 (July 18, 2025)). The second was to clarify the comment
deadline ending date as August 4, 2025, rather than July 30, 2025 (90
FR 34165 (July 21, 2025)).
USDA received approximately 6,075 written submissions in response
to the IFR published on July 3, 2025. The overwhelming majority of the
comments (approximately 5,020) were identical campaign form letters
sent in response to organized initiatives. USDA received approximately
1,055 unique public comments, though many of these were also very
similar in form with only minor content added to make them unique. The
volume and substantive content of the comments received indicates that
the public had an adequate opportunity to comment. Thus, while USDA
maintains for the reasons noted above that its IFR is subject to the
exceptions set forth in 5 U.S.C. 553(b), this final rule represents the
culmination of a process functionally equivalent to a traditional
notice-and-comment rulemaking regardless of the initial procedural
basis for the IFR.
Since publishing the IFR, USDA has identified opportunities to
clarify content included in this final rule to make implementation of
the revised regulations more efficient, effective, and consistent with
other departments or agencies where applicable.
USDA is issuing this final rule to primarily respond to public
comments on the IFR, as well as explain clarifications provided in
response to feedback provided by reviewers and implementers of the
revised regulations. This final rule explains that USDA is reaffirming
its decision to rescind seven agency-specific NEPA regulations and
revise the departmental NEPA regulations, subject to the additional
revisions made by this final rule. This final rule therefore supersedes
the IFR.
USDA considered and is responding to substantive public comments in
this final rule. Summaries of and responses to these comments are
provided in the pertinent sections of this final rule preamble. Both
general support and
[[Page 17064]]
opposition to the IFR were expressed by unique comments received. None
of the comments received altered USDA's conclusion that there is a need
to revise, move and republish, or remove portions of the USDA NEPA
implementing regulations, as well as add new portions, given the CEQ
NEPA regulations no longer provide a foundation for USDA NEPA
regulations and leave the Department without necessary interpretation
of, and implementing regulations for, NEPA. Comments did, however,
inform opportunities to change some content between the interim and
final rule as described in the sections pertinent to the comment topic.
Several commenters on the IFR expressed support for the revised
regulations and USDA's approach to fulfilling NEPA's statutory
requirements while allowing for efficient, timely, and effective NEPA
reviews and program implementation. Many of these commenters described
their experience trying to move important infrastructure, energy,
timber, and other projects through the NEPA process over the last
couple of decades. They expressed frustration with the overly
burdensome processes and analysis requirements that were created in
response to evolving case law and the frequent revisions to the now-
rescinded CEQ NEPA regulations, all of which have created confusion and
unnecessary delays. For these reasons, they expressed support for a
course-correction on NEPA compliance by aligning the USDA regulations
with the intent of the Act in a way that meaningfully evaluates
environmental effects to inform the decision-making process while still
expanding the various services and resources that USDA programs provide
across the nation.
Other numerous commenters on the IFR expressed lack of support for
the revised regulations and USDA's approach to fulfilling NEPA's
statutory requirements. These commenters see the revised regulations as
failing to facilitate informed agency decisions that require a full
evaluation of environmental impacts and not promoting a transparent
process for informing and engaging the public. Many of these commenters
described their positive and results-oriented experience engaging with
federal agencies to inform the decision-making process and ensure
sufficient environmental effects analysis was completed. They expressed
frustration with the rescission of the CEQ NEPA regulations and the
confusion and inconsistency that will be created by each federal
department and/or agency issuing their own version of NEPA implementing
regulations and/or procedures. For these reasons, they encouraged a
version of USDA regulations that more readily mirror the processes and
procedures that were described in the now-rescinded CEQ NEPA
regulations.
USDA acknowledges both these supportive and non-supportive
comments.
II. Basis for Consolidating and Revising USDA's NEPA Regulations
A. USDA NEPA Regulations
In 1974, the Secretary of Agriculture issued Memorandum No. 1695,
Supplement 4 (Revised), to establish guidelines for the preparation of
environmental impact statements and compliance with other procedural
requirements of Sec. 102(2) of the NEPA. On May 1, 1979 (44 FR 25606)
and July 30, 1979 (44 FR 44802), the Department of Agriculture (USDA)
proposed and finalized rules setting forth policies and procedures for
compliance with NEPA and CEQ's implementing regulations (40 CFR parts
1500 through 1508). On occasion, the Department has further amended its
NEPA regulations to refine and adjust to better meet its organizational
and program needs. See 46 FR 47747, 48 FR 11403, 60 FR 66479, 76 FR
4801.
Prior to the IFR, USDA promulgated the most recent iteration of its
NEPA regulations in 1995 (60 FR 66479, Dec. 22, 1995), to
``[supplement] the regulations for the implementation of the National
Environmental Policy Act (NEPA), for which regulations were published
by the CEQ in 40 CFR parts 1500 through 1508 [and incorporate and
adopt] those regulations''. Subtitle A, part 1b.1 of title 7 of the
Code of Federal Regulations (1995) (hereinafter 7 CFR 1b). USDA NEPA
regulations were dependent upon provisions in the 1978 CEQ regulations.
Similarly, individual USDA agency NEPA regulations expressly state that
their ``purpose'' is to supplement and implement CEQ regulations:
(1) Agricultural Research Service, subtitle B, chapter V, part 520,
of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 520):
``These procedures incorporate and supplement, and are not a substitute
for, CEQ regulations under 40 CFR parts 1500-1508, and Department of
Agriculture NEPA Policies and Procedures under 7 CFR part 1b.'' (7 CFR
520.1 (1986));
(2) Animal and Plant Health Inspection Service, subtitle B, chapter
III, part 372, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 372): ``These procedures implement section 102(2) of
the National Environmental Policy Act (NEPA) by assuring early and
adequate consideration of environmental factors in Animal and Plant
Health Inspection Service planning and decision-making and by promoting
the effective, efficient integration of all relevant environmental
requirements under NEPA. The goal of timely, relevant environmental
analysis will be secured principally by adhering to NEPA implementing
regulations (40 CFR parts 1500-1508), especially provisions pertaining
to timing (Sec. 1502.5), integration (Sec. 1502.25), and scope of
analysis (Sec. 1508.25).'' (7 CFR 372.1 (2018));
(3) Farm Service Agency, subtitle B, chapter VII, subchapter G,
part 799, of title 7 of the Code of Federal Regulations (hereinafter 7
CFR 799): ``This part: . . . (2) Establishes FSA procedures to
implement the (i) National Environmental Policy Act (NEPA) of 1969, as
amended (42 U.S.C. 4321 through 4370); (ii) CEQ regulations (40 CFR
parts 1500 through 1518); and (iii) USDA NEPA regulations (Sec. Sec.
1b.1 through 1b.4 of this title).'' (7 CFR 799.1 (2016));
(4) National Institute of Food and Agriculture, subtitle B, chapter
XXXIV, part 3407, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 3407): ``The purpose of this regulation is to
supplement the regulations for implementation of NEPA established by
the CEQ and codified at 40 CFR parts 1500-1508, as adopted by USDA in 7
CFR part 1b.'' (7 CFR 3407.1 (1991));
(5) Natural Resources Conservation Service, subtitle B, chapter VI,
subchapter F, part 650, of title 7 of the Code of Federal Regulations
(hereinafter 7 CFR 650): ``The procedures included in this rule
supplement CEQ's NEPA regulations, 40 CFR parts 1500-1508. CEQ
regulations that need no additional elaboration to address NRCS-
assisted actions are not repeated in this rule, although the
regulations are cited as references. The procedures include some
overlap with CEQ regulations. This is done to highlight items of
importance for NRCS. This does not supersede the existing body of NEPA
regulations.'' (7 CFR 650.1 (1979));
(6) Rural Development, subtitle B, chapter XVIII, subchapter H,
part 1970, of title 7 of the Code of Federal Regulations (hereinafter 7
CFR 1970): ``This part also supplements the CEQ regulations
implementing the procedural provisions of NEPA, 40 CFR parts 1500
through 1508. To the extent appropriate, the agency will take into
account CEQ guidance and
[[Page 17065]]
memoranda.'' (7 CFR 1970.1 (2016)); and
(7) U.S. Forest Service, chapter II, part 220, of title 36 of the
Code of Federal Regulations (hereinafter 36 CFR 220): ``This part
establishes Forest Service, U.S. Department of Agriculture (USDA)
procedures for compliance with the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321-4347) and the CEQ regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500
through 1508) . . . This part supplements and does not lessen the
applicability of the CEQ regulations and is to be used in conjunction
with the CEQ regulations and USDA regulations at 7 CFR part 1b.'' (36
CFR 220.1 (2008)).
Departmental and agency NEPA regulations have been largely
organizational and technical, with limited substantive content. The
Department's past judgment has been that effective NEPA implementation
could be achieved by reliance on a policy statement in 7 CFR 1b.2 and
individual USDA agency NEPA regulations for tailored technical
procedures. For the reasons described above, the Department now
believes that a change is necessary to advance the Department's mission
in an efficient, flexible, and innovative manner while ensuring the
conservation and protection of the environment.
USDA has analyzed how best to respond to CEQ's interim and final
rule and fulfill NEPA's statutory requirements while allowing for
efficient program implementation. In the Department's judgment, given
that NEPA is a procedural statute that simply directs consideration of
reasonably foreseeable environmental impacts, it is sufficient for the
Department to issue a set of uniform procedures, and it is not
necessary for each subcomponent with NEPA responsibilities across the
Department to supplement the Department NEPA regulations. Therefore,
USDA is correcting course and right-sizing its NEPA regulations
consistent with applicable law.
B. USDA Agency-Specific NEPA Regulation Summaries
1. Statement of Purpose
USDA's revised NEPA implementing regulations, as adopted via this
final rule, are a more faithful implementation of the statute as
amended in 2023 than its previous version of regulations. These
regulations implement major structural features of the 2023 amendments
to NEPA, such as deadlines and page limits for environmental
assessments (EAs) and environmental impact statements (EISs), as
directed at NEPA Sec. 107 (e) and (g), 42 U.S.C. 4336a(e) and (g), and
provide that USDA will complete preparation of these documents within
the maximum length and on the timeline that Congress intends. They
incorporate Congress's definition of ``major Federal action'' and the
exclusions thereto, as codified at NEPA Sec. 111(10), 42 U.S.C.
4336e(10). They incorporate Congress's mandated procedure for
determining the appropriate level of review under NEPA, as codified in
NEPA Sec. 106, 42 U.S.C. 4336. They incorporate Congress's direction
with respect to establishment, adoption, and application of categorical
exclusions (CEs), as codified at NEPA Sec. 109 (42 U.S.C. 4336c) and
Sec. 111(1), 42 U.S.C. 4336e(1). They provide procedures governing
project-sponsor-prepared EAs and EISs, as directed at NEPA Sec.
107(f), 42 U.S.C. 4336a(f). They incorporate Congress's revision to the
requirements for what an agency must address in its EISs, as codified
at NEPA Sec. 102(2)(C), 42 U.S.C. 4332(2)(C), and Congress's
requirement that public notice and solicitation of comment be provided
when issuing a notice of intent to prepare an EIS, as directed at NEPA
Sec. 107(c), 42 U.S.C. 4336a(c). All of these are crucial features of
Congress's policy design and its purpose in the 2023 amendments that
NEPA review be more efficient and certain.
Moreover, the revised regulations respond to the President's
directive in E.O. 14154, Unleashing American Energy, 90 FR 8,353, and
E.O. 14192, Unleashing Prosperity Through Deregulation, 90 FR 9065
(Feb. 6, 2025), to ensure that regulatory requirements are grounded in
applicable law and to alleviate any unnecessary regulatory burdens. The
revised regulations also reflect the Supreme Court's recent and
unequivocal statement that NEPA is a purely procedural statute. The
Department is conscious of the Supreme Court's admonition that NEPA
review has grown out of all proportion to its origins of a ``modest
procedural requirement,'' creating, `` `under the guise' of just a
little more process,'' ``[d]elay upon delay, so much so that the
process seems to `borde[r] on the Kafkaesque.' '' Seven County, 145 S.
Ct. at 1513-1514. These regulations, therefore, are intended to align
NEPA with its Congressionally mandated dimensions, reflecting the
guidance given also by the President and the Supreme Court, and making
review under it faster, more flexible, and more efficient and
effective.
Several commenters on the IFR disagree with USDA's approach in the
revised regulations and allege it is not consistent with E.O. 14154,
nor is it justified by the executive order which some state is contrary
to the statutory direction contained in NEPA. Several other commenters
support USDA's approach and expressed their appreciation for USDA's
compliance with the E.O. 14154 and attempt to more closely align the
departmental NEPA regulations with the statutory intent of NEPA as
originally intended and amended.
E.O. 14154 directs all agencies to prioritize efficiency and
certainty and avoid and minimize delays and ambiguity in the permitting
process. USDA's revised departmental regulations guide compliance with
NEPA that will better advance the priorities articulated in E.O. 14154.
Consolidating NEPA procedures under one department-wide regulation
provides consistency, making USDA's NEPA process more transparent,
efficient, and certain for both employees and sponsors, applicants, or
other third parties who may work on efforts that span more than one
USDA subcomponent.
The rescission of the CEQ NEPA regulations, along with the U.S.
Supreme Court decision in Seven County Infrastructure Coalition v.
Eagle County, Colorado, 145 S. Ct. 1497 (2025), provided additional
reason for USDA to take a hard look at the NEPA regulatory structure
across the Department. With the broader NEPA regulatory environment
upended with the rescission of the CEQ regulations, USDA saw this as an
opportunity to make necessary course corrections to the department's
NEPA regulatory structure and move away from the overcomplicated and
burdensome NEPA regulatory framework that evolved over the decades due
to promulgation of agency-specific NEPA regulations that continued to
layer process requirements on top of those already required by CEQ's
NEPA regulations. While previous USDA NEPA regulations (to include
agency-specific regulations) necessarily incorporated and adopted the
CEQ regulations, CEQ's rescission of their NEPA regulations means
departments and agencies are no longer entirely beholden to
interpreting and applying NEPA as laid out in any version of 40 CFR
parts 1500-1508.
USDA acknowledges that CEQ's regulations previously provided a
framework for NEPA compliance and informed agency practices. However,
as CEQ explained in its final rule affirming the removal of its
regulations, CEQ lacks
[[Page 17066]]
independent statutory authority to maintain NEPA implementing
regulations that bind agencies in the absence of an executive order
delegating rulemaking authority to CEQ. 91 FR at 622-23; see also
Executive Order 14154, Unleashing American Energy, 90 FR 8,353.
Accordingly, departments and agencies may now exercise discretion to
adopt procedures consistent with NEPA and executive policies. Indeed,
as explained above, because USDA's prior NEPA implementing procedures
were expressly designed as a supplement to CEQ's rescinded regulations,
CEQ's recission necessitated that USDA adopt new procedures designed to
independently implement NEPA.
To this end, USDA is not carrying forward process requirements,
which may have been codified in now rescinded regulations, where these
do not prioritize efficiency and certainty and do not avoid and
minimize delays and ambiguity in the permitting process. Additionally,
USDA took into consideration that USDA subcomponents and responsible
officials have multiple obligations to consider, such as analyzing the
most important resource impacts within statutorily mandated page limits
and deadlines, being responsive to varying levels of public interest,
managing fluctuations in budget and workforce capacity, and accounting
for other situations that require process flexibility. Therefore, in
revising the departmental NEPA regulations, USDA consulted with CEQ
under NEPA section 102(2)(B), 42 U.S.C. 4332(2)(B) and placed emphasis
on: (1) more closely aligning the procedures and processes outlined in
the revised 7 CFR 1b regulations with statutory requirements; and (2)
promoting responsible official discretion to determine whether to
conduct certain processes based on circumstances unique to the USDA
subcomponent and the proposal or project at hand.
Furthermore, USDA is currently coordinating with CEQ on the
Permitting Technology Action Plan that responds to the Presidential
Memorandum of April 15, 2025 on Updating Permitting Technology for the
21st Century. This permitting technology update is departmental in
scope. Logistically and fiscally, it is more efficient and effective to
have the entire Department operating under one set of NEPA regulations
as part of information technology modernization, improved customer
service delivery, and establishment of more predictable and consistent
permitting and environmental review processes--rather than trying to
accommodate and design around seven or more ways of conducting NEPA
within the same Department, as would be the case with the seven agency-
specific NEPA regulations that had been promulgated within USDA.
Some commenters noted that USDA's IFR was not consistent with
regulations or procedures published in other department and agency
IFRs. USDA recognizes that its approach to implementing NEPA may differ
from other department and agency approaches to implementing NEPA.
Through this final rulemaking, USDA is revising and affirming NEPA
implementing procedures that fit its programs and authorities while
maintaining government-wide consistency to the extent possible. As
previously discussed, following the removal of CEQ's NEPA regulations,
USDA has flexibility to determine department and agency-specific NEPA
procedures to modernize, simplify, and accelerate NEPA reviews and
support responsible development.
Furthermore, USDA notes that NEPA requires departments/agencies to
consult with CEQ when developing NEPA procedures. See 42 U.S.C.
4332(2)(B). NEPA does not require departments and agencies to
coordinate with one another to ensure identicality between their
respective NEPA procedures, let alone between the means by which each
department/agency issues those procedures. Department and agency
statutory authorities and subject-matter expertise and capacity differ
greatly, and variance on these matters is to be expected. Indeed,
department and agency NEPA regulations and procedures were not
homogenous or identical during the era in which CEQ maintained
overarching implementing regulations, as demonstrated by seven non-
identical, agency-specific NEPA regulations that had been promulgated
within USDA, and there is no requirement or reasonable expectation that
they should now be consistent with other departments and agencies when
the CEQ regulations have been vacated and rescinded.
Several commenters on the IFR allege that the revised regulations
require NEPA compliance and an EIS, or EA at a minimum, needs to be
completed.
The establishment of NEPA implementing regulations does not require
a NEPA analysis. See Heartwood v. U.S. Forest Serv., 230 F.3d 947, 954-
55 (7th Cir. 2000) (finding that neither NEPA or the CEQ regulations
required the Forest Service to conduct an EA or an EIS prior to the
promulgation of its procedures creating a CE).
Several commenters on the IFR allege the changes made to the
departmental NEPA regulations, as well as rescission of some agency
NEPA regulations, requires programmatic consultation with U.S. Fish and
Wildlife Service and National Marine Fisheries Service to comply with
the Endangered Species Act (ESA).
Neither the revised USDA NEPA implementing regulations themselves
nor the rescission of agency-specific NEPA regulations would result in
adverse impacts on endangered or threatened species or designated
critical habitat. NEPA and USDA's implementing regulations provide
procedures to ensure that agencies account for the environmental
impacts of their actions. The commenter's alleged harm to species is
speculative. Procedural regulations do not create proximate cause of
any potential harm or take, which would result from future agency
actions rather than USDA's procedural structure. Such future actions
would be subject to the ESA's consultation requirements. Therefore,
Section 7 of the ESA does not apply to this rulemaking.
USDA has revised its NEPA implementing regulations to conform to
the 2023 statutory amendments, to respond to President Trump's
direction in E.O. 14154 to, ``[c]onsistent with applicable law,
prioritize efficiency and certainty over any other objectives,
including those of activist groups, that do not align with the policy
goals set forth in section 2 of [that] order or that could otherwise
add delays and ambiguity to the permitting process,'' (E.O. 14154,
Section 5(c)) and to address the pathologies of the NEPA process and
NEPA litigation as identified by the Supreme Court. Where USDA has
retained an aspect of its preexisting NEPA implementing regulations, it
is because that aspect is compatible with these guiding principles;
where USDA has revised or removed an aspect, it is because that aspect
is not so compatible.
2. General Overview of Changes
USDA is modifying the department-level NEPA regulations found at 7
CFR 1b to provide a valid foundation from which USDA mission areas,
agencies, and staff offices (or subcomponents) implement NEPA. 7 CFR 1b
primarily retains and moves the placement of the following information
currently contained in 7 CFR 1b and the individual agency NEPA
regulations below: CEs, which includes a list of USDA agencies and
offices excluded from completing an EA or EIS; and emergency action
provisions. Some additional sections from agency-specific
[[Page 17067]]
regulations are also retained, as described in the agency-specific
regulation discussions listed below. Except for the information to be
moved to the revised 7 CFR 1b regulation, the following individual
agency NEPA regulations are rescinded in full:
--Agricultural Research Service: 7 CFR 520;
--Animal and Plant Health Inspection Service: 7 CFR 372;
--Farm Service Agency: 7 CFR 799;
--National Institute of Food and Agriculture: 7 CFR 3407;
--Natural Resources Conservation Service: 7 CFR 650;
--Rural Development: 7 CFR 1970; and
--U.S. Forest Service: 36 CFR 220.
The following summaries capture additional specific changes that
are occurring for each affected USDA regulation. For all regulations,
references to CEQ's rescinded NEPA implementing regulations (40 CFR
parts 1500 through 1508) were removed. Where USDA agency NEPA
regulations cited portions of the agency regulation that are now being
rescinded, those references were also removed and revised to refer to
the applicable section in the revised 7 CFR 1b regulation. Where USDA
agency NEPA regulations used agency-developed terms, such as those
associated with agency-developed forms and other document types, these
have been generalized to allow for the application of consistent
Department implementing regulations for NEPA. As discussed previously,
USDA agencies will be able to issue agency-specific procedures through
technical and program guidance that aligns with NEPA and the Department
regulations at 7 CFR 1b.
3. USDA Departmental NEPA Regulations (7 CFR 1b)
USDA is revising the department-level NEPA regulations at 7 CFR 1b
to provide necessary guidance and direction for implementing NEPA in
the absence of the CEQ NEPA implementing regulations, as rescinded
effective April 11, 2025.
With the CEQ NEPA implementing regulations having been rescinded,
USDA identified opportunities to reduce redundant and duplicative
regulation revision efforts for agency-specific NEPA regulations and
instead establish necessary direction at the department-level. This
allows the Department to establish consistency across the
subcomponents, where desired, in how NEPA is implemented.
Some commenters on the IFR supported USDA's decision to issue
revised regulations alone rather than issuing regulations and
procedures/technical guidance together or procedures/technical guidance
alone. Commenters view this regulations-only approach as establishing
more transparency, stability, and durability of USDA's intended
approach and commitment to implementing NEPA over the long-term,
whereas procedures/technical guidance can be updated at any time with
little to no public notice.
USDA is adopting the regulations-only approach in this final rule.
It finds that a department-wide regulation offers consistency,
stability, transparency, and clear expectations for USDA subcomponents
and their stakeholders.
The following provides a summary of what is included or revised in
each section of the department-level NEPA regulations, as well as the
rationale for the changes.
7 CFR 1b.1--Purpose: Previous paragraphs (a) and (b) in this
section are removed. Paragraphs (a) through (d) are added.
In this section, USDA removes reference to CEQ NEPA regulations at
40 CFR parts 1500 through 1508 and adds clarification of the purpose of
the revised departmental NEPA regulations. It codifies the Department's
determination that this rule is an interpretative rule. This section
specifies the mission areas, agencies, and staff offices (hereinafter
USDA subcomponents or subcomponent) the part applies to.
In the final rule, 7 CFR 1b.1(c) is revised to remove ``the U.S.
Department of Agriculture'' and replace it with the acronym USDA. This
aligns with the use of USDA throughout the regulations.
No changes have been made to 7 CFR 1b.1(a), (b), and (d) relative
to the version released with the IFR in July 2025.
7 CFR 1b.2--Policy: Previous paragraphs (a), (b), (c), and (d) in
this section are removed. Paragraphs (a) through (i) are added and this
section is now revised to read as indicated in 7 CFR 1b.2. In this
section, USDA outlines the Department's policy on complying with NEPA
and specifies roles and responsibilities at the Department for managing
NEPA compliance.
7 CFR 1b.2(a) outlines USDA's intent to comply with NEPA. In the
final rule, the phrase ``as amended by the Fiscal Responsibility Act of
2023'' is revised to ``as amended''. NEPA was amended again by the One
Big Beautiful Bill Act of 2025 one day after the IFR published.
Additional legislation could be proposed and passed that would amend
NEPA again; therefore, USDA finds it appropriate to keep the language
regarding amendments to NEPA general instead of citing specific Acts to
circumvent the need for administrative updates to the regulations in
the future.
7 CFR 1b.2(b) clarifies how USDA will manage NEPA compliance. The
final rule changes the USDA senior agency official from the Under
Secretary of Natural Resources and Environment to the Deputy Secretary
of USDA, as referenced in 7 CFR 1b.2(a) and (b) (to include applicable
paragraphs). As all agency or mission area NEPA regulations have been
rescinded and USDA is operating under one department-wide regulation,
it was determined the senior agency official should be a level higher
than a mission area Under Secretary as the senior agency official holds
responsibility for ensuring overall Department compliance with NEPA.
(All references to the ``senior agency official'' throughout the
regulations were revised to reflect this change and any references to
the Under Secretary of Natural Resources and Environment were removed
throughout the regulations.) This section provides clarification on the
issuance of agency-specific NEPA guidance for processes and practices
that address agency-specific laws and program efficiency. 7 CFR
1b.2(b)(2) is revised to refer to ``any mission area'', rather than
``another mission area''. This change was necessitated because of the
change in the senior agency official (now the Deputy Secretary, not a
mission area Under Secretary).
Some commenters on the IFR disagreed with the language in 7 CFR
1b.2(b)(2)(vi) that allows subcomponents to establish procedures for
bonding provisions, alleging the language is ambiguous and questioning
USDA's statutory authority for this provision. Commenters expressed
concern that this provision could be misinterpreted as allowing bonding
requirements on the public to participate in the NEPA process as it is
not clear what parties this provision applies to. This provision is
removed and the list in 7 CFR 1b.2(b)(2) renumbered to reflect this
change.
7 CFR 1b.2(c) allows USDA subcomponents to establish subcomponent-
specific NEPA guidance so long as the guidance avoids creating
unnecessary process. No changes have been made to this section relative
to the version released with the IFR in July 2025.
7 CFR 1b.2(d) adds requirements to submit to Congress on an annual
basis a report that identifies any EA and EIS that such lead agency did
not complete by the deadline described in NEPA Sec. 107(g), 42 U.S.C.
4336a(g), as amended in 2023, and provide an explanation for
[[Page 17068]]
failure to meet deadlines. This section specifies USDA roles and
responsibilities for completing this report. No changes have been made
to this section relative to the version released with the IFR in July
2025.
7 CFR 1b.2(e) adds the process for how USDA subcomponents will
determine when NEPA does not apply. Consideration of whether the action
is a major Federal action is added, in line with the definition of
major Federal action in NEPA, as amended by the FRA. NEPA does not
apply to ``non-Federal actions''; therefore, under the terms of the
statute, NEPA does not apply to actions with no or minimal Federal
funding, or with no or minimal Federal involvement where a Federal
agency cannot control the outcome of the proposal. A but-for causal
relationship is insufficient to make an agency responsible for a
particular action under NEPA. See Dept. of Transp. v. Pub. Citizen, 541
U.S. 752, 767 (2004). By the same token, minimal Federal funding or
involvement, which may in a causal sense be a but-for cause of an
action, does not by itself convert that action into a Federal action
within the meaning of the language of the statute.
Several commenters on the IFR disagreed with the definition of
``major Federal action'' and proposed changes to the definition, while
several other commenters supported the definition as it is defined in
NEPA and encouraged USDA to accurately apply it to agency programs and
actions, especially as it pertains to loans and loan guarantees. Some
commenters disagreed with inclusion of the clause that states the
``terms `major' and `Federal action' each have independent force'' and
alleged this inappropriately changes the definition of major Federal
action as provided in NEPA. Some commenters proposed that USDA include
a list in 7 CFR 1b that identifies actions that are not considered
major Federal actions.
Some commenters on the IFR also disagreed with the consideration of
``whether the proposal is an action for which another statute's
requirements serve the function of the Federal agency's compliance with
the Act'' and suggested this was not appropriate to include as
considerations for when NEPA applies and therefore should be removed.
The term ``major Federal action'' is statutorily defined in NEPA,
as amended by the Fiscal Responsibility Act of 2023. 42 U.S.C.
4336e(10). USDA does not have the authority to change the definition.
The clarification that the terms ``major'' and ``Federal action'' have
independent force is to prompt consideration that an action may be
Federal but not major, or major but not Federal. This does not change
the definition of major Federal action but rather ensures it is
accurately considered and applied. The definition of, and exclusions
from, the NEPA term of art ``major Federal action'', read holistically,
support the view that the words ``major'' and ``Federal'' within that
term of art do have independent force--e.g., ``non-Federal actions''
with ``no or minimal'' federal funding or involvement (i.e., actions
that are not ``Federal'' in common-sense terms, and/or that are not
``major'' when viewed from the perspective of ``how much'' of the
action is truly Federal), are not ``major Federal actions''. Therefore,
the clarification that the terms ``major'' and ``Federal action'' have
independent force is in keeping with the text and structure of NEPA
generally and the definition of ``major Federal action'' specifically.
USDA considered whether the regulations should specify those
actions that are not considered major Federal actions; however, it was
decided these determinations are best made on a case-by-case basis--
either at a program or project level--by USDA subcomponents so that the
regulations do not have to be routinely revised to amend this list. As
the regulations apply to multiple USDA subcomponents, it would be
difficult to create a list that universally applies to all USDA
subcomponents. 7 CFR 1b.2(e) clarifies that threshold determinations of
whether NEPA applies may be made on a case-by-case or programmatic
basis and record keeping of the justifications for these determinations
is advisable. This includes determination of whether an action is a
major Federal action.
With regards to consideration of whether the proposal is an action
for which another statute's requirements serve the function of the
Federal agency's compliance with the Act, USDA finds this ``functional
equivalent'' provision is appropriate. Other laws, such as the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), may serve as a functional equivalent for NEPA. The functional
equivalent of NEPA for CERCLA (Superfund) actions is the CERCLA
Remedial Investigation (RI) and Feasibility Study (FS) process, which
includes the Record of Decision. While NEPA requires the formal
preparation of an EIS, the RI/FS process under CERCLA assesses a site's
impacts and selects a remedy, embodying the intent of NEPA.
The Department is not proposing any change in its current
application of the functional equivalent doctrine by codifying it. It
is codifying the status quo by incorporating the functional equivalence
doctrine into its regulations (7 CFR 1b.2(e)(6)). This is a
longstanding doctrine from case law. See Mandelker, Daniel NEPA Law and
Litig. 5:16 (2025). ``Where federal regulatory action is circumscribed
by extensive procedures, including public participation, for evaluating
environmental issues and is taken by an agency with recognized
expertise, formal adherence to the NEPA requirements is not required
unless Congress has specifically so directed.'' Id., quoting State of
MD. v. Train, 415 F. Supp. 116, 122 (D. Md. 1976).
In the final rule, references to ``USDA'' in 7 CFR 1b.2(e) and
applicable paragraphs are revised to ``USDA subcomponent'' to be
consistent with terminology used throughout the revised regulations.
7 CFR 1b.2(f) adds the process for how USDA subcomponents will
determine the level of NEPA that applies. Where some agency-specific
NEPA regulations identified categories of actions generally requiring
an EA or EIS, these sections have not been carried forward into 7 CFR
1b. NEPA does not require the identification of categories of actions
other than those actions that are categorically excluded from
documentation in an EA or EIS when a Federal agency has determined the
actions normally do not significantly affect the quality of the human
environment within the meaning of NEPA Sec. 102(2)(C), 42 U.S.C.
4332(2)(C), NEPA Sec. 111(1), 42 U.S.C. 4336e(1)). Because the
determination of no significance was made during the process of
establishing the CE, it is the consideration of whether an
extraordinary circumstance exists that may preclude the use of the
category (see 7 CFR 1b.3(f)). In determining whether a CE applies to a
proposed action, and therefore does not require preparation of an EA or
EIS, an agency should evaluate the action for extraordinary
circumstances that indicate a normally excluded action is likely to
have reasonably foreseeable significant adverse effects. Determinations
of whether to prepare an EA or EIS should be based on the anticipated
degree of effect, in accordance with NEPA, not on the type of action.
An EA shall be prepared when a Federal agency finds that a CE does not
apply to an action and the action does not have a reasonably
foreseeable significant impact on the quality of the human environment,
or the significance of such effect is unknown (NEPA Sec. 106(b)(2) (42
U.S.C. 4336(b)(2); 7 CFR
[[Page 17069]]
1b.2(f)(2)(iv)(A)) and 1b.5(a)). An EIS shall be issued when a Federal
agency finds that a CE does not apply and determines an action has a
reasonably foreseeable significant impact on the quality of the human
environment (NEPA Sec. 106(b)(1), 42 U.S.C. 4336(b)(1); 7 CFR
1b.2(f)(2)(iv)(B) and 1b.7(a)). This policy accurately reflects the
statutory requirements of NEPA for determining the appropriate level of
NEPA review (CE, EA, or EIS). In the final rule, the references to
``USDA'' in 1b.2(e), (e)(1), and (e)(4) were revised to read as ``a
USDA subcomponent''.
This section also includes the new considerations for whether the
effects of the proposed action (or alternatives) are significant (7 CFR
1b.2(f)(3)). When defining considerations for significance, USDA is
using the concept of ``affected environment'' and a list of types of
effects that include both short- and long-term effects, both beneficial
and adverse effects, effects on public health and safety, economic
effects, and effects on the quality of life of the American people.
Some commenters on the IFR disagreed with USDA's considerations for
significance. Some would like to see the considerations of significance
as they existed in the CEQ NEPA regulations prior to the 2020 revision
(context and intensity framing). Others did not support the inclusion
of considerations for social and economic factors as part of the
affected environment and degree of effects, alleging this will expand--
not streamline--effects analysis beyond what NEPA intended. Still other
commenters supported the addition of considerations for social and
economic effects.
Congress enacted NEPA to declare a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man and nature
can exist in productive harmony, and [to] fulfill the social, economic,
and other requirements of present and future generations of
Americans''. 42 U.S.C. 4331(a). Given the statutory language as it
relates to fulfilling the social and economic requirements of present
and future generations, USDA finds it appropriate to include
considerations of social (i.e., ``effects on the quality of life of the
American people'') and economic effects in the consideration of
affected environment and degree of effects.
With regards to the rationale the responsible official provides as
to whether the degree of effect is significant, USDA is aligning
considerations of significance with the statutory items that must be
disclosed in an EIS, per NEPA Sec. 102(2)(C)(i-v) (42 U.S.C. 4332),
such as disclosure of reasonably foreseeable environmental impacts (as
both short- and long-term effects), consequences of not implementing
the action, irreversible and irretrievable commitment of Federal
resources, and long-term productivity of the human environment. Instead
of leaving the list of types of effects as disparate disclosures, USDA
finds it logical to bring these together when it comes to
considerations for significance. The terms ``compares to'' and
``contributes to,'' as included in the considerations for significance,
provide the necessary precision or focus for conducting the analysis of
the effects and considering how the potential impacts compare to the
consequences, especially as it relates to effects on public health and
safety, economics, and the quality of life of the American people, as
well as identifying irreversible and irretrievable commitments and how
these contribute to loss of long-term productivity for the human
environment. Outlining the significance considerations in this manner
allows those conducting effects analysis to better focus on the issues
to be analyzed in detail for reasonably foreseeable significant impacts
and allows the responsible official to better communicate their
rationale for deciding how to proceed and why.
As part of the final rule, 7 CFR 1b.2(f)(3)(iii)(A) is revised to
add ``and beneficial'' to the phrase ``How the unavoidable short- and
long-term adverse [and beneficial] impacts . . .''. As pointed out by
some commenters on the IFR, it is appropriate to also compare the
beneficial impacts of implementing the action to the short- and long-
term adverse or beneficial consequences of not implementing the action,
especially as 7 CFR 1b.2(f)(3)(ii)(B) and 7 CFR 1b.11(a)(12)(i) say
both beneficial and adverse effects should be considered. 7 CFR
1b.2(f)(3)(iii)(B) is revised to change ``or'' to ``and'' and add the
word ``Federal'' in the phrase ``How the irreversible [and]
irretrievable commitment of a [Federal] resource'', as this aligns with
the statutory language found in NEPA Sec. 102(2)(C)(v), 42 U.S.C.
4332(2)(C)(v).
7 CFR 1b.2(g) specifies that as part of USDA subcomponent decision-
making, NEPA should be integrated with other environmental analyses to
demonstrate compliance with other laws. No changes have been made to
this section relative to the version released with the IFR in July
2025.
7 CFR 1b.2(h) adds limitations on actions taken during the NEPA
process. In the final rule, 7 CFR 1b.2(h) is revised to correct the
citation ``Sec. 1b.2.h'' to ``paragraph (h)'' and change the reference
to ``USDA'' to ``USDA subcomponent'' or ``subcomponent'' to be
consistent with terminology used throughout the revised regulations.
7 CFR 1b.3--Categorical Exclusions and Findings of Applicability
and No Extraordinary Circumstance: Revises the title of this section
from ``Categorical Exclusions'' to ``Categorical Exclusions and
Findings of Applicability and No Extraordinary Circumstance''.
Department-level CEs previously included in paragraph (a) of this
section are moved to Sec. 1b.4, with revisions occurring to these as
described in the discussion of changes for Sec. 1b.4. Previous
paragraphs (b) and (c) in this section are removed. Paragraphs (a)
through (j) are added and this section is now revised to read as
indicated in 7 CFR 1b.3.
This section adds procedures for establishing and revising (7 CFR
1b.3(b)), adopting (7 CFR 1b.3(c)), removing (7 CFR 1b.3(d)), and
applying (7 CFR 1b.3(e)) CEs.
In the final rule, 7 CFR 1b.3(a) and 7 CFR 1b.3(c)(3) are revised
to change the phrase ``USDA's Natural Resources and Environment mission
area'' to ``USDA''. This change is necessary due to the senior agency
official changing from the Under Secretary of Natural Resources and
Environment to the Deputy Secretary. In the last sentence of 7 CFR
1b.3(a), the term ``USDA agency'' at the end of the sentence was
changed to ``USDA subcomponent'' to be consistent with terminology used
throughout the revised regulations.
In the final rule, 7 CFR 1b.3(b)(3) is revised to clarify that
public notice must be provided in the Federal Register regarding USDA's
establishment or revision of a CE and location of availability of any
additional written record. As previously written, it was interpreted
that the entire written record must be provided in the Federal
Register, and that was not the intent. The intent is to make the public
aware of where the written justification can be found, which does not
need to be in the Federal Register notice itself. The final rule also
revises the term ``justification'' to ``record'' in this section, as
well as in 7 CFR 1b.3(d)(1-3) and revises references to ``categories''
in Sec. 1b.3(c)(3)(iii) to now read as ``categorical exclusions''.
7 CFR 1b.3(e) adds clarification that USDA subcomponents may use
any of
[[Page 17070]]
the CEs listed at 7 CFR 1b.4, as well as use non-USDA categories that
were adopted by any other USDA subcomponent as specified at Sec.
1b.3(c)(3)(ii).
Several commenters on the IFR disagreed with the provision in the
revised regulations that allows any USDA subcomponent to use the CEs
now listed in the departmental NEPA regulations at 7 CFR 1b.4, which
were initially promulgated through USDA agency-specific NEPA
regulations that have now been rescinded. Some commenters also
disagreed with the provision that allows any USDA subcomponent to use a
CE already established by another USDA subcomponent or adopted from
another agency by another USDA subcomponent. Commenters allege
additional analysis is required to understand the effects anticipated
if the CEs are used by different USDA subcomponents. Some commenters
want all agency-promulgated CEs to be formally ``adopted'' by the
Department to allow for appropriate use by subcomponents implementing
actions in different settings.
As explained in the preamble for the IFR, the USDA NEPA regulations
have always included Department-wide CEs (now moved to 7 CFR 1b.4). See
48 FR 11403 (March 18, 1983) and 60 FR 66481 (Dec. 22, 1995). Given the
issuance of one set of departmental NEPA regulations to provide
consistency for all USDA subcomponents implementing NEPA, the
rescission of agency-specific NEPA regulations, and the overlap of
similar programs and activities across USDA mission areas and agencies,
the Department finds it is appropriate for USDA subcomponents to apply
the same CE where the actions proposed by the subcomponent apply to the
actions described by a CE. The focus of a CE is on the character of the
actions being proposed and ensuring such actions do not result in an
extraordinary circumstance that creates reasonable uncertainty whether
the degree of the effect is significant or certainty that a reasonably
foreseeable significant effect will occur. The focus is not on the
identity of the agency that conducts the action. Where a CE is relevant
only to a USDA subcomponent's bespoke program, the CE is already
written in a way that its use will be limited to that subcomponent. For
example, CE USDA-26c-USFS applies to the ``Approval, modification, or
continuation of minor, short-term (1 year or less) special uses of NFS
lands''; therefore, this CE clearly only applies to the U.S. Forest
Service. Additionally, the revised regulations applied numbering that
includes the acronym of the USDA subcomponent that initially
promulgated the CE, making it clear which subcomponent the CE generally
applies to or indicating which subcomponent should be consulted to
ensure proper application should another USDA subcomponent want to
apply the CE.
There is, therefore, no reason in principle that a USDA
subcomponent cannot rely on another agency's CE or adopted CE for the
same kind of proposed action. In the case of USDA subcomponents being
able to use one another's CEs, USDA subcomponents also share the same
extraordinary circumstances review protocol and are readily able to
confer with their fellow USDA subcomponents when questions arise.
Similarly, for CEs that have already been adopted by a USDA
subcomponent, another USDA subcomponent using that CE for the first
time can readily confer with the agency that originally promulgated the
CE without going through another formal adoption process. In addition,
should a USDA subcomponent's proposed action be different from the
proposed action encompassed by the CE originally promulgated by another
agency, there would be no reason for the USDA subcomponent to rely on
that other agency's CE, and the concerns the commenter raises would not
arise.
Upon reviewing CEs adopted by USDA agencies since 2024, USDA found
that 5 categories had been adopted twice by USDA agencies (Rural
Utility Service and Forest Service) for actions that overlap mission
areas and instances where these two agencies often function as joint
leads or participating agencies on an action. Furthermore, the one
example raised by a commenter alleging a CE promulgated by the Farm
Service Agency for construction or ground disturbance actions could not
apply to the Forest Service is moot because the CE has already been
adopted by the Forest Service. These examples readily illustrate why
USDA included the provisions in the revised regulations that allow USDA
subcomponents to use any CE originally promulgated by another USDA
subcomponent (as found in 7 CFR 1b.4) or adopted by another USDA
subcomponent (as listed on a USDA website). USDA subcomponents already
consult with each other on the historical use and substantiation used
to establish a CE when they are unsure if a CE supports an action.
7 CFR 1b.3(e) also clarifies that USDA subcomponents may apply one
or more CEs to a proposed action.
Several commenters on the IFR disagreed with the clarification in
the revised regulations that more than one CE can be applied to a set
of actions, alleging that this practice could lead to significant
adverse impacts when ``stacking'' the use of more than one CE in the
same area.
In some circumstances, the combination of CEs can cover all aspects
of a proposed action and support a subcomponent's determination that
the proposed actions, when considered in their entirety, are not likely
to have a reasonably foreseeable significant adverse effect. The intent
is not to allow for improper segmentation, whereby a subcomponent would
improperly divide a single project into arbitrary segments divorced
from logical termini, e.g., by dividing a 10-acre project into 1-acre
segments. Rather, the intent is to clarify that a subcomponent may
apply multiple CEs when considering proposed actions in their entirety.
In such cases, the subcomponent must make a single, comprehensive
determination that the CEs, when applied together, are applicable to
the action as a whole and do not undermine the conclusion that the
proposed action as a whole does not warrant further review in an EA or
EIS.
A USDA subcomponent's reliance on multiple CEs is not precluded by
NEPA, as they constitute ``categories of action,'' not distinct
``actions,'' and therefore a subcomponent can reasonably determine that
an action or all constituent elements of an action fit within multiple
designated ``categories''. If applying more than one CE to a set of
actions, the cause-effect relationship must account for the impact of
all the actions. It may very well be that the actions as a whole, even
though implemented under more than one category, do not lead to an
extraordinary circumstance or significant effects. Therefore, the
actions may appropriately proceed under more than one category and
would continue to be excluded from further analysis in an EA or EIS.
In summary, no changes have been made to section 1b.3(e) relative
to the version released with the IFR in July 2025.
7 CFR 1b.3(f) adds procedures for considering extraordinary
circumstances, explanation of what constitutes an extraordinary
circumstance, and clarification for how the subcomponent should proceed
based on the determination of whether there are extraordinary
circumstances. Consideration of extraordinary circumstances takes into
account the nature of the proposed actions and the context of the
potentially affected environment, with a list of resources or
[[Page 17071]]
circumstances the responsible official may want to screen for in the
potentially affected environment. This section also clarifies an
extraordinary circumstance means a unique situation exists in which
actions that normally do not have significant impacts and are therefore
categorically excluded from documentation in an EA or EIS, create
uncertainty whether the degree of the impact is significant for the
relevant resources considered (7 CFR 1b.11(a)(17)). The mere presence
of one or more of the resources or circumstances listed in 7 CFR
1b.3(f)(1) does not mean an extraordinary circumstance exists. If there
is a cause-effect relationship (impact) between the proposed actions
and the resource considered, an extraordinary circumstance exists only
when there is reasonable uncertainty whether the degree of the effect
is significant or certainty that the degree of effect is significant.
In such instances, the agency will conduct additional NEPA review under
an EA or EIS, as appropriate.
In the final rule, 7 CFR 1b.3(f)(2) is revised to add clarification
to the sentence that begins with ``If there is a cause-effect
relationship . . .''. This sentence is split into two sentences and the
first sentence now reads as: ``If there is a cause-effect relationship
(impact) between the proposed actions and the resource considered, the
responsible official should consider if there is something unique to
the actions proposed or to the condition of the affected environment or
resource(s) considered that creates uncertainty about the degree of
potential effect or would lead to a reasonably foreseeable significant
effect.'' This clarification better conveys USDA's intent for how
responsible officials should consider extraordinary circumstances.
Categories are identified for those actions that routinely have been
found to not result in reasonably foreseeable significant effects, and
thus that the agency has determined ``normally does not significantly
affect the quality of the human environment. However, when applying a
CE, responsible officials should consider if there is something unique
to the actions proposed or to the condition of the affected environment
or resource(s) considered that creates uncertainty about the degree of
potential effect or would lead to a reasonably foreseeable significant
effect.
Previously, some agencies had mandated lists of resources to
consider for extraordinary circumstances while other agencies had no
list. USDA adds a list of resources (based on the previously existing
lists in some USDA agency-specific NEPA regulations) a responsible
official may consider for extraordinary circumstances but does not
mandate any of these must be considered. Considerations for
extraordinary circumstances will be made at the responsible official's
sole discretion and determined on a case-by-case basis, considering the
nature of the proposed action and the potentially affected environment.
This section adds clarification on what constitutes the existence of an
extraordinary circumstance and specifies that effects analysis
completed to demonstrate compliance with other applicable laws also can
be relied on to determine no extraordinary circumstance exists for the
resource considered. The Department added this clarification because
some agencies were creating duplicative and unnecessary reports in the
past.
Several commenters on the IFR expressed concern with the way
extraordinary circumstances are defined in the revised regulations.
Commenters also generally did not support the clarification that
responsible officials have sole discretion to determine resources to be
considered for extraordinary circumstances, to modify the proposed
action or take other steps to create certainty regarding the degree of
effect, or to determine there is ``reasonable certainty'' a reasonably
foreseeable significant impact will not occur. Some commenters also
requested that consideration of ``important or prime agricultural,
forest, or range lands'' be removed from resources that may be
considered, and the consideration of ``American Indians and Alaska
Native religious or cultural sites'' be added to resources that may be
considered.
USDA finds it appropriate to provide for responsible official sole
discretion when determining resources for consideration for
extraordinary circumstances, as this determination shall be based on
the nature of the actions proposed and in the context of the
potentially affected environment. Responsible official discretion and
determinations of whether an extraordinary circumstance exists is
informed by interdisciplinary review (7 CFR 1b.3(g)(2)(v)). To make
this clearer in response to the comments expressing concern about
responsible official ``sole discretion'', a sentence in 7 CFR 1b.3(f)
is revised to read: ``Resources for consideration for extraordinary
circumstances will be determined at the responsible official's sole
discretion, [added: as informed by interdisciplinary review] . . .''.
Rather than adding undue process for each and every action
undergoing a CEs review, the USDA regulations promote responsible
official discretion to determine which resources need to be considered
for extraordinary circumstances. Consideration of some resources may be
filtered out when looking at what is present in the potentially
affected environment and where or how actions will occur.
Section 1b.3(f)(1), which provides a non-exclusive list of the
resources the responsible official may screen for in the potentially
affected environment when considering extraordinary circumstances, is
revised in the final rule to change ``important or prime agricultural,
forest, or range lands'' to ``prime, unique, or important farmland as
defined by and subject to the provisions of the Farm Protection Policy
Act''. The extraordinary circumstance that was listed as ``Property
(e.g., sites, buildings, structures, and objects) of historic,
archeological, or architectural significance, as designated by Federal,
Tribal, State, or local governments, or property eligible for listing
on the National Register of Historic Places'' in the IFR is revised in
the final rule to have the last portion of the sentence read as ``or
property eligible for or listed on the National Register of Historic
Places''. The intent is for properties already listed on the National
Register of Historic Places to be considered for extraordinary
circumstances, but the previous wording implied it was only properties
eligible for listing that needed to be considered. The same section is
also revised in the final rule to add ``American Indians and Alaska
Native religious or cultural sites'' as a standalone consideration.
7 CFR 1b.3(g) adds the concept of a finding of applicability and no
extraordinary circumstance (FANEC), which applies to all CEs. For those
categories requiring NEPA documentation, the regulations specify that
these determinations must be documented to demonstrate the appropriate
use of the category, adequate consideration of extraordinary
circumstances, and a determination that no extraordinary circumstance
exists. The regulations give agencies flexibility on how to document
these determinations so long as certain items are addressed. It also
clarifies documentation considerations for other applicable
environmental laws and regulations and timing of action.
In the final rule, 7 CFR 1b.3(g)(2)(iii) is revised to replace the
word ``certify'' with the phrase ``state how'', to now read: ``Describe
the proposed action and state how the category or categories
[[Page 17072]]
used are applicable to the actions''. The word ``certify'' was raising
questions internally as to what was required to certify the category or
categories used, when the intent is merely to state how the
category(ies) apply.
7 CFR 1b.3(h) clarifies that USDA subcomponents may rely on other
CE determinations. In the final rule, 7 CFR 1b.3(h) is revised to
clarify that reliance on CE determinations can also include those
determinations made within the USDA subcomponent, not just those
determinations of other agencies, as there was internal interpretation
that USDA subcomponents could not rely on their own previous
determinations. The title of this section was also revised to remove
the phrase ``of other agencies'', as this phrase was contributing to
much of the misinterpretation. This change also aligns with the
reliance approach outlined in 7 CFR 1b.9(e)(8). This section was also
revised to clarify how responsible officials may rely on CE
determinations. Reliance can just be on a previous determination that a
category or categories applies to the activities being proposed when
the activities are substantially the same as those described by the
USDA subcomponent or other agency, but the extraordinary circumstance
considerations are not substantially the same. Reliance can also be on
both the previous determination that a category or categories applies
to the activities being proposed when the activities are substantially
the same and the previous determination that no extraordinary
circumstances exist when the potentially affected environment and
resources considered for extraordinary circumstances are substantially
the same. The phrase ``substantially the same'' was already used in 7
CFR 1b.3(h) and was used in 7 CFR 1b.9(e)(8)(i) (as published in the
IFR); therefore, this phrase is not solely introduced as part of this
final rule but is appropriately used in place of language that was
similar in meaning but not exact in wording. As previously worded, it
was not clear internally that reliance could only be for the finding
that the category (or categories) fits the actions being proposed, or
for both that finding and the finding that no extraordinary
circumstances exist, as specified at 7 CFR 1b.3(g). In the final rule,
the last sentence in this section regarding documentation of reliance
was deleted and is now addressed at 7 CFR 1b.9(e)(8)(ii).
7 CFR 1b.3(i) outlines other documentation USDA subcomponents may
need to consider when applying CEs. No changes have been made to this
section relative to the version released with the IFR in July 2025.
7 CFR 1b.3(j) clarifies when timing of the agency action may occur
when a CE applies. No changes have been made to this section relative
to the version released with the IFR in July 2025.
7 CFR 1b.4--Categorical Exclusion of USDA Subcomponents and
Actions: This section revises the title from ``Exclusion of Agencies''
to ``Categorical Exclusion of USDA Subcomponents and Actions''.
Previous paragraphs (a) and (b) are combined into one paragraph, now
paragraph (a), which is revised to read as indicated in 7 CFR 1b.4.
Paragraphs (b), (c), and (d) are added to this section.
7 CFR 1b.4(a) includes the list of USDA subcomponents generally
excluded from preparing an EA or EIS, with the list of those
subcomponents previously listed not changing during this rulemaking
process; however, other general offices of the Department were added to
this list.
Some commenters on the IFR suggested that the programs and
activities of the Food Safety and Inspection Service (FSIS) should not
be excluded from the preparation of an EA or EIS. FSIS programs and
activities are currently excluded from the preparation of an EA or EIS
in 7 CFR 1b.4(a)(5) of the IFR. This CE was carried over from the prior
version of 7 CFR 1b.4.
Several commenters on the IFR assert that FSIS' actions constitute
major Federal actions with significant environmental effects and that
the CE is inconsistent with NEPA. One group of commenters, the Center
for Biological Diversity (CBD), Humane World for Animals (formerly,
Humane Society of the United States), and Humane World Action
(formerly, Humane Society Legislative Fund) previously submitted a
petition requesting promulgation of a rule rescinding the CE for FSIS
programs and activities in 7 CFR 1b.4(a)(5). In their comments on the
IFR, these organizations include some of the same arguments made in
their petition for rulemaking and reference the petition for
rulemaking. Another commenter independently submitted comments on this
rulemaking that mirror the comments submitted by CBD, Humane World for
Animals, and Humane World Action on the IFR and some of the arguments
in the petition.
After carefully considering the issues raised by the comments on
the IFR, USDA has decided to retain the CE in 7 CFR 1b.4(a)(5).
Specific arguments raised in these comment letters on the IFR are
addressed below.
The commenters argue that NEPA authorizes categorical exclusions
only for individual actions or categories of actions. Commenters claim
that the CE in 7 CFR 1b.4(a)(5) violates NEPA because it categorically
excludes FSIS as an entity and does not categorically exclude
individual actions or categories of actions of FSIS.
The commenters mischaracterize the nature of FSIS' categorical
exclusion by suggesting it applies to the agency as an entity. The CEs
in 7 CFR 1b.4(a) apply to ``programs and activities'' of the listed
subcomponent agencies, not the agencies as entities. The CEs in 7 CFR
1b.4(a) thus reflect USDA's determination that the programs and
activities carried out by FSIS (and other USDA subcomponents) do not
normally result in reasonably foreseeable significant impacts on the
natural or physical environment, which is the statutory standard for
establishment of a CE, see 42 U.S.C. 4336e(1). This analysis, while
clearer under the current version of 7 CFR 1b.4(a), was the fundamental
analysis underlying the initial promulgation of the CE. The original
language from 1983 establishing the CE for FSIS' programs and
activities was as follows: ``The USDA agencies listed below carry out
programs and activities which have been found to have no individual or
cumulative effect on the human environment. These agencies are excluded
from the requirements to prepare implementing procedures. Actions of
these agencies are categorically excluded from the preparation of an EA
or EIS unless the agency head determines that an action may have a
significant environmental effect.''
Thus, the CE is not a blanket exemption from NEPA documentation.
Rather, the establishment of a CE, and subsequent agency findings that
an action is excluded pursuant to that categorical exclusion, are forms
of NEPA compliance expressly authorized by statute, see 42 U.S.C.
4336(a)(2), (b)(2), 4336e(1). The establishment of (or, in this case,
the decision to maintain) a CE is based on a determination that FSIS'
programs and activities do not normally require preparation of an EA or
EIS.
The commenters also argue that FSIS authorizes actions that have
significant impacts on the environment. USDA disagrees. USDA has
concluded that FSIS actions involve programs and activities that
normally do not significantly affect the quality of the human
environment and therefore, to the extent that NEPA applies to the FSIS'
actions at the threshold state (which, as explained in what follows, it
does not, as clarified by recent statutory amendments), the CE is
appropriate.
[[Page 17073]]
Moreover, FSIS' actions involve programs and activities that are either
mandatory, i.e., non-discretionary, or ministerial in nature and,
therefore, do not constitute ``major Federal actions'' that trigger
NEPA review in the first instance, as illuminated by the definition of
and exclusions from the definition of that term as codified in the 2023
statutory amendments to NEPA, see 42 U.S.C. 4336e(10). In the
discussion below, we describe representative FSIS activities and
explain how they do not constitute major Federal actions.
FSIS administers inspection programs under the Federal Meat
Inspection Act (FMIA), (21 U.S.C. 601-695) the Poultry Products
Inspection Act (PPIA) (Id. Sec. Sec. 451-470), and the Egg Products
Inspection Act (EPIA) (Id. Sec. Sec. 1031-1056). These statutes
require FSIS to provide inspection services to establishments that meet
statutory requirements and to apply the mark of inspection to products
that are not adulterated or misbranded (See id. Sec. Sec. 455, 457,
603-604, 1034, 1035). FSIS has no authority to deny inspection or label
approval based on effects to natural resources such as emissions,
wastewater discharges, odors, traffic patterns, land use, or other
environmental factors regulated by agencies such as the Environmental
Protection Agency (EPA) or the Occupational Safety and Health
Administration (OSHA), or state and local authorities.
Likewise, FSIS' line speed rulemakings address a narrow,
inspection-administration question: what maximum rate, if any, is
compatible with FSIS' ability to carry out required post-mortem
inspection and with establishments' ability to maintain process control
so that adulterated products do not enter commerce. The statutes do not
give FSIS authority or discretion to make rulemaking decisions for line
speed based on potential environmental impacts.
The Secretary is authorized to withhold or suspend inspection
services, or issue ``regulatory control actions,'' where establishments
fail to comply with sanitation requirements. While FSIS has discretion
to choose among these enforcement mechanisms based on the facts of a
particular case, this discretion is limited to ensuring compliance with
food safety requirements and protecting public health. Nothing in the
FMIA, PPIA, or EPIA authorizes FSIS to alter the manner in which it
carries out its obligations to prevent adulterated products from
entering commerce in light of environmental considerations, waste
reduction, or other such policy objectives. These actions therefore do
not constitute major Federal actions and are therefore not subject to
NEPA as a threshold matter. See 42 U.S.C. 4336e(10)(B)(vii).
Additionally, FSIS' decisions regarding the number of government
inspectors assigned to an establishment are driven by statutory
inspection mandates and staffing needs and do not authorize, fund, or
control establishment operations or environmental outcomes. The
statutes do not authorize FSIS to assign or withhold inspectors to
influence establishment production volume, waste generation, or other
potential environmental effects. Therefore, FSIS' decisions regarding
the number of government inspectors assigned to an establishment do not
constitute major Federal actions. See 42 U.S.C. 4336e(10)(B)(i), (vii).
In commenters' final argument, they contend that FSIS actions,
particularly those related to slaughter line speeds, have reasonably
foreseeable downstream effects on animal production, transportation,
pollution, and waste management that must be analyzed under NEPA.
Under NEPA, the ``mandated focus . . . is `the proposed action'--
that is, the project at hand--not other future or geographically
separate projects that may be built (or expanded) as a result of or in
the wake of the immediate project under consideration''. (Seven County
Infrastructure Coalition v. Eagle County 145 S. Ct. 1497, 1515 (2025))
``[A] court may not invoke but-for causation or mere foreseeability to
order agency analysis of the effects of every project that might
somehow or someday follow from the current project. NEPA calls for the
agency to focus on the environmental effects of the project itself, not
on the potential environmental effects of future or geographically
separate projects.'' (Id. at 190 (internal citations omitted)) ``The
agency may draw what it reasonably concludes is a `manageable line'--
one that encompasses the effects of the project at hand, but not the
effects of projects separate in time or place.'' (Seven County, 145 S.
Ct. 1497, 1517) Therefore, ``[a]n agency may decline to evaluate
environmental effects from separate projects upstream or downstream
from the project at issue''. (Id. at 191)
These same principles apply here. FSIS' actions are limited to
ensuring food safety, proper labeling, and humane handling. As such,
FSIS regulates sanitation standards, wholesomeness of products,
labeling claims, and humane methods of handling and slaughter. FSIS
does not regulate animal production, transportation, pollution, or
waste management. These activities are regulated by other Federal,
state, or local authorities. As such, when determining whether an FSIS
action (i.e., regulation of slaughter line speeds) may require NEPA
analysis (as described above FSIS does not believe any of its actions
are major Federal actions), FSIS is not required to look at effects
that may be ``factually foreseeable'' but are irrelevant to the
agency's decision-making process and over which FSIS possesses no
regulatory authority. (Id. at 187) For these reasons, downstream
effects that an FSIS action may lead to or relate to, such as animal
production, transportation, pollution, and waste management activities
which are conducted and/or regulated by others, are not effects of
FSIS' action and do not trigger NEPA review by FSIS.
Though FSIS has no obligation to analyze these downstream effects,
it has addressed factual contentions about them in response to public
comments in prior line speed rulemakings. See Modernization of Swine
Slaughter Inspection, 84 FR 52300, 52317 (Oct. 1, 2019); Modernization
of Poultry Slaughter Inspection, 79 FR 49566, 49610-11 (Aug. 21, 2014).
In these rulemakings, commenters asserted that faster line speeds would
cause an increase in the total number of animals that a facility would
process, which in turn would cause increased water usage, emissions,
and consumption of electricity. As FSIS explained in those proceedings,
these assertions are misplaced. Faster line speed may allow for more
efficient processing but has no direct effect on consumer demand that
determines the total number of animals slaughtered. Accordingly, FSIS
determined these rulemakings would not have significant effects and
sustained the application of the categorical exclusion.
In summary, FSIS does not engage in major Federal actions
significantly affecting the quality of the human environment. Instead,
FSIS programs and activities either: (1) are ministerial or mandatory,
and not discretionary, and therefore do not fall within the definition
of ``major Federal action'' subject to NEPA, see 42 U.S.C. 4336e(10);
or (2), even if they did fall within this definition, normally do not
significantly affect the quality of the human environment, and are
therefore appropriate bases for establishment of a categorical
exclusion, see id. Sec. 4336e(1).
[[Page 17074]]
Therefore, it remains appropriate for USDA to retain the CE for FSIS'
programs and actions in 7 CFR 1b.4(a)(5).
7 CFR 1b.4(b) clarifies how CEs are organized and numbered in the
revised regulations. No changes have been made to this section relative
to the version released with the IFR in July 2025.
The department-level CEs previously listed in 7 CFR 1b.3 have been
moved to 7 CFR 1b.4(c) in this section. Examples of actions that fit
the category were added to some of the department-wide categories, as
further described under the agency-specific regulation changes
discussed below. Some agencies had CEs that were duplicative of the
department-wide categories or served as examples of those categories;
therefore, these were removed as separate categories and added as
examples of the department-wide categories where applicable.
CEs previously codified in USDA agency-specific NEPA regulations
are now consolidated under 7 CFR 1b.4(c) and (d) in this section. Any
changes to the CE language, as previously documented in agency-specific
NEPA regulations, are discussed under the applicable agency-specific
justification sections below. Other than these few modifications to
categories, the majority of categories remain unchanged as originally
promulgated and are simply moved from one section of USDA's regulations
to another.
Categories are organized in the revised regulations by those that
do (7 CFR 1b.4(d)) or do not (7 CFR 1b.4(c)) require NEPA
documentation. New numbering was assigned to each CE to make it easier
to reference categories across the Department as any USDA subcomponent
may utilize the CEs listed in 7 CFR 1b. Numbering includes acronyms at
the end indicating the agency that initially established the category
to help agency personnel more readily locate the categories they are
likely to continue using frequently, as well as to allow Department
personnel to identify the agency that originally promulgated the CE
should another USDA subcomponent need to consult that agency on
appropriate application of the category.
7 CFR 1b.5--Environmental Assessments: This section is added to
read as indicated in 7 CFR 1b.5. This section adds procedures for
issuing EAs and reinforces the role of an EA.
7 CFR 1b.5(a) outlines the conditions for when an EA will be
completed. In the final rule, 7 CFR 1b.5(a) is revised to remove two
erroneous inclusions of the phrase ``the policy in'' when referencing
sections 1b.2(e) and 1b.2(f) in the regulations.
7 CFR 1b.5(b) adds requirements for defining the ``Scope of
Analysis'' in an EA. No changes have been made to this section relative
to the version released with the IFR in July 2025.
7 CFR 1b.5(c) gives agencies flexibility on how to format the EA so
long as certain items are addressed. It also provides clarification on
requirements for analysis of alternatives for an EA and reiterates the
importance of deadline and page limit requirements from NEPA, as
amended in 2023. Consideration of taking no action shall be included as
part of the environmental impacts analysis to contrast the potential
impacts of the proposed action, and any alternative(s) if developed,
with the current condition and expected future condition if the
proposed action or alternative were not implemented (7 CFR
1b.5(c)(2)(i)). This is necessary to inform aspects of the
consideration of significance, as specified in 7 CFR 1b.2(f)(3).
In the final rule, 7 CFR 1b.5(c) is revised to specify the scope of
analysis must be included in the elements for an EA. This is not a new
requirement; the requirement in 1b.5(b) to address scope of analysis in
the EA was included in the IFR. However, Department personnel pointed
out that this requirement could be easily missed in the process of
developing an EA because it was not highlighted as a required element
for an EA.
In the final rule, 7 CFR 1b.5(c)(3) is revised to change the word
``consequences'' to ``impacts''. As pointed out by Department
personnel, this change is necessary to align with terminology used in
this section (environmental impacts) when clarifying the option to
combine the potentially affected environment discussion with the
environmental impacts discussion.
In the final rule, 7 CFR 1b.5(c)(6) is revised to clarify that the
certifying statement for page limits and deadlines does not require a
signature, as this was raising questions internally as to whether an EA
needs to be signed by the responsible official to make this statement
``certified''. The revised language also clarifies that approval to
publish the EA to a USDA website indicates the responsible official has
reviewed the EA and concurs with the certifying statement.
In the final rule, 7 CFR 1b.5(c)(7) is added to the list of
elements required for an EA and reads as ``Unique identification
number''. The USDA subcomponent shall include a unique identification
number on the environmental assessment, as required by Sec. 1b.9(u)''.
This is not a new requirement, as the requirement in 1b.9(u) to provide
a unique identification number on EAs and EISs for tracking purposes
was included in the IFR. However, Department personnel pointed out that
this requirement could be easily missed in the process of developing an
EA because the unique identification number was not highlighted as a
required element for an EA.
7 CFR 1b.5(d) emphasizes the statutory requirements for EA page
limits. In the final rule, this section is revised to add the citations
to NEPA for page limits for EAs to clarify these page limits are
statutorily required and not a requirement established in the USDA NEPA
regulations.
7 CFR 1b.5(e) states that subcomponents are to adhere to the
statutory deadlines and publish an EA ``in as substantially complete
form as is possible''. This section also requires responsible officials
to certify that they made a good faith effort to satisfy the page limit
and deadline requirements in the statute. It clarifies when seeking an
extension to the deadline is appropriate. These new additions provide
the Department's policy on how it will apply the new statutory
deadlines in 42 U.S.C. 4336a(g) and page limits in 42 U.S.C. 4336a(e).
This policy is based on the rationale that NEPA is governed by a ``rule
of reason''. Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 767
(2004). In establishing deadlines for the EA process in the 2023
revision of NEPA, Congress supplied the measure of that reason in NEPA
Sec. 107(g), 42 U.S.C. 4336a(g). ``Time and resources are simply too
limited for us to believe that Congress intended'' consideration under
NEPA to extend indefinitely. Metro. Edison Co. v. People Against
Nuclear Energy, 460 U.S. 766, 776 (1983) (citing Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 551 (1978)). This section also
clarifies when it may be appropriate to publish a notice of intent to
prepare an EA and provides direction on making the EA available to the
public.
In the final rule, the second sentence in 7 CFR 1b.5(e)(1) is
revised to add ``of environmental impacts'' at the end of the sentence.
This is to clarify the stage at which the interdisciplinary review
referred to is occurring. As pointed out by Department personnel,
interdisciplinary review also occurs to inform development of the
proposed action. This change clarifies that at this stage of
interdisciplinary review the proposed action is considered final and
now interdisciplinary review is shifting
[[Page 17075]]
to analyzing impacts of that proposed action.
In the final rule, 7 CFR 1b.5(e)(3) is revised to now include
paragraphs (i), (ii) and (iii). In paragraph (ii), clarification is
provided that publishing a notice of intent for an EA will be at the
sole discretion of the responsible official and clarifies what the
notice of intent will include if one is published, as there was
internal confusion as to whether the notice of intent for an EA needed
to be the same as that for an EIS (as outlined in 7 CFR 1b.7(b)). The
added language in paragraph (iii) also clarifies that, notwithstanding
other statutory or regulatory requirements, the decision to solicit
public comment in the notice of intent for an EA shall be at the sole
discretion of the responsible official, as there is no statutory
requirement in NEPA to solicit public comment in a notice of intent
published for an EA, though there is such a statutory requirement for a
notice of intent published for an EIS. This does not change the
Department's stance in the IFR because the IFR did not require EAs to
provide an opportunity for public comment, as this is not statutorily
required by NEPA.
7 CFR 1b.5(f) provides requirements for publishing the EA to a USDA
website. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.5(g) clarifies circumstances where it may be appropriate
to extend deadlines for an EA. In the final rule, this section is
revised to remove the erroneous first ``as'' in the phrase ``such as
time as'', now reading as ``such time as''.
7 CFR 1b.5(h) adds a requirement for the responsible official to
certify that the EA was completed within the deadline. No changes have
been made to this section relative to the version released with the IFR
in July 2025.
7 CFR 1b.6--Finding of No Significant Impact: This section is added
to read as indicated in 7 CFR 1b.6.
This section adds procedures for issuing findings of no significant
impact and reinforces the role of a finding of no significant impact
(FONSI). It gives agencies flexibility on how to format the FONSI so
long as certain items are addressed. It also provides direction on
making the FONSI available to the public, providing notifications, and
timing of the action.
7 CFR 1b.6(a) specifies the general requirements for when a FONSI
will be prepared. No changes have been made to this section relative to
the version released with the IFR in July 2025.
7 CFR 1b.6(b) outlines the elements that must be addressed in the
FONSI. In the final rule, 7 CFR 1b.6(b)(3) is revised to remove an
erroneous sentence at the end of the paragraph. The sentence had
previously been revised to reflect the correct statement found in the
sentence prior to the last sentence in this paragraph, but the
incorrect sentence at the end of the paragraph was not deleted. The
following correct sentence remains: ``If the responsible official finds
no significant impacts based on mitigation, state the authority for any
mitigation that the responsible official has adopted and any applicable
monitoring or enforcement provisions.'' The following erroneous
sentence has been deleted: ``If the responsible official finds no
significant effects based on mitigation, the mitigated finding of no
significant impact will state any mitigation requirements enforceable
by the subcomponent or voluntary mitigation commitments that will be
undertaken to avoid significant effects, and any applicable monitoring
or enforcement provisions.''
7 CFR 1b.6(c) clarifies other considerations for documentation. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.6(d) includes requirements for publishing the FONSI. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.6(e) includes requirements for the responsible official to
provide notifications of the availability of the FONSI. No changes have
been made to this section relative to the version released with the IFR
in July 2025.
7 CFR 1b.6(f) provides clarification on the timing of the action.
No changes have been made to this section relative to the version
released with the IFR in July 2025.
7 CFR 1b.7--Environmental impact statements: This section is added
to read as indicated in 7 CFR 1b.7.
This section adds procedures for issuing EISs and reinforces the
role of an EIS.
7 CFR 1b.7(a) outlines the conditions for when an EIS will be
completed. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.7(b) outlines the requirements for publishing the notice
of intent. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.7(c) specifies the scoping process that may be applied. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.7(d) adds clarity on the process for requesting comments
during preparation of an EIS to align with statutory requirements in
NEPA (Sec. 102(2)(C), 42 U.S.C. 4332(2)(C); (Sec. 107(c), 42 U.S.C.
4336a(c)).
7 CFR 1b.7(d) also specifies that a request for comment may be
undertaken at any time that is reasonable in the process of preparing
an EIS, as the publication of a draft EIS is no longer required. NEPA
does not require publication of a draft EIS, and filing a draft EIS
with the Environmental Protection Agency and publishing the notice of
availability in the Federal Register, as previously required by the now
rescinded CEQ regulations, adds time and unnecessary process.
Responsible officials still have the discretion to publish a draft EIS
on a USDA website, along with any other pre-decisional materials that,
in their judgment, may assist in fulfilling their responsibilities
under NEPA and in facilitating the request for comments.
7 CFR 1b.7(d) also reiterates that USDA subcomponents must ensure
the process of obtaining and addressing comments and the publication of
draft or pre-decisional materials must not cause the subcomponent to
violate the Congressionally mandated deadline for completion of an EIS.
In the final rule, 7 CFR 1b.7(d)(2)(iv) is revised to remove the
phrase ``including by affirmatively soliciting comments in a manner
designed to inform those persons or organizations who may be interested
in or affected by the proposed action or action alternatives''. A
slightly revised version of this phrase is added at the end of 7 CFR
1b.7(d)(2) that reads as: ``May request the comments of the following
in a manner designed to inform those persons or organizations who may
be interested in or affected by the proposed action or action
alternatives:''. This change was made to clarify that solicitation of
comments should occur in a manner designed to inform all of the
entities listed, as some Department personnel were interpreting that
only to apply to the public when the phrase was included at the end of
paragraph 1b.7(d)(2)(iv) of this section.
7 CFR 1b.7(e) provides requirements to provide for electronic
submission of comments and publishing all substantive comments
electronically, or summarizing substantive comments and including this
summary as an appendix in the EIS. No changes have been made to this
section relative to the version released with the IFR in July 2025.
7 CFR 1b.7(f) specifies that subcomponents shall consider comments
and should address
[[Page 17076]]
comments raising substantive issues or recommendations. This section
also focuses the subcomponent on addressing comments by capturing the
action the responsible official took in response to the issue raised or
recommendation made, and recommends that documentation of how comments
were addressed should be included as an appendix in the EIS.
Section 1b.7(f) also requires electronic publication of substantive
comments and provides an alternative course of action (providing a
summary of comments received) if USDA subcomponents do not have the
capability or capacity to electronically publish comments.
Section 1b.7(f) also specifies that USDA subcomponents shall
consider substantive comments but leaves discretion for addressing
substantive comments in writing. There is no requirement in NEPA to
address comments in writing; however, documentation of how comments
were considered is highly encouraged to demonstrate the rationale for
how the responsible official decides to proceed during the iterative
development of the proposed action and action alternatives and the
iterative analysis process. This documentation of how the responsible
official proceeded and why is advantageous to demonstrating that
decisions made during the iterative NEPA process are not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law; however, experience implementing the previous CEQ NEPA regulation
requirement for responding to comments has demonstrated this process
led to burdensome and time-consuming efforts that routinely prevented
USDA subcomponents from meeting the 2-year deadline for completing an
EIS, which is now statutorily required (NEPA Sec. 107(g)(1)(A), 42
U.S.C. 4336a(g)(1)(A)).
Additionally, the approach to ``response to comments'' that has
been employed by some USDA subcomponents was not always been the most
effective in that it did not focus on demonstrating the action the
responsible official took in response to the substantive issue raised
and/or recommendation made. In some cases, the ``response to comments''
documentation generated levels of paperwork that exceeded the page
count of the environmental document itself, defying one of the key
principles of NEPA to generate better decisions, not better documents.
For this reason, section 1b.7(f) also clarifies that if
documentation is completed to demonstrate how comments were considered
and addressed, the documentation should focus on capturing the actions
taken, as specified at 7 CFR 1b.7(f)(2), to facilitate a more efficient
and effective approach to demonstrate how the responsible official
responded to the substantive issue raised and/or recommendation made to
improve the decision on how to proceed (e.g., issues to be analyzed in
detail, alternatives to be considered or analyzed, or the alternative
selected for implementation).
Some commenters disagreed with the emphasis to focus on
``substantive'' comments and the definition of substantive as provided
in the revised regulations. In keeping with one of the key principles
of NEPA to generate better decisions, not better documents, USDA is
inclined to have responsible officials focus on those issues that are
substantive as these issues contain information that meaningfully
informs the decision-making process, which includes consideration of
reasonably foreseeable impacts on the human environment, the resulting
significance determination, decisions on how to proceed (i.e.,
alternatives to be considered or analyzed or the alternative selected
for implementation), and compliance with applicable laws and
regulations. (Also see discussion on edits made to the definition of
``substantive'' under section 1b.11 in the preamble.)
Numerous commenters on the IFR did not support the reduction in
opportunities for public comment for the various levels of NEPA review
(CE, EA, and EIS), as may have been outlined in some USDA agency-
specific NEPA regulations that are now rescinded. Commenters with
differing opinions on USDA's overall approach to amending the
regulations tended to agree that the lack of opportunity for public
comment, particularly for EISs, could have unintended adverse
consequences, particularly when it comes to informing and improving
agency decisions and waiving exhaustion of administrative remedies.
Several commenters on the IFR stated that the regulations should
require a comment period for EAs and require scoping for CEs (which may
provide an opportunity to comment), as may have been required by some
USDA agency-specific NEPA regulations prior to rescission. Several
other commenters supported EAs not having a comment period as they are
generally completed for projects that are not likely to have reasonably
foreseeable significant impacts but for which a CE does not apply to
the actions proposed.
Numerous commenters on the IFR stated that the regulations should
require publication of a draft EIS (DEIS) and require a comment period
on the DEIS, with many alleging this is a requirement of NEPA itself.
These commenters did not support what they see as the loss of
transparency and democracy that the DEIS comment period brought to
agency decision-making. Some commenters supported the reduction of
process associated with publishing a DEIS and soliciting, considering,
and responding to additional public comments, contending that the
public comment process has become a mechanism for some organizations to
spam agencies with form letters and create work that is not value added
to the decision-making process but rather serves to further delay
implementation of necessary agency actions.
Responsible officials have multiple obligations to consider, such
as analyzing the most important resource impacts within statutorily
mandated page limits and deadlines, being responsive to varying levels
of public interest, managing fluctuations in budget and workforce
capacity, and accounting for other situations that require process
flexibility. Rather than adding undue process for each and every action
undergoing NEPA review, the USDA regulations align with the statutory
intent and purpose of NEPA and promote responsible official discretion
to determine when and how to involve the public and solicit public
comment, unless otherwise statutorily required.
Comment on CEs and EAs is not statutorily required by NEPA. USDA
declines to add or keep comment opportunities for CEs and EAs when not
statutorily required. USDA acknowledges that this is a shift in
practice for the public regarding certain public scoping or comment
requirements included in the prior regulations for certain USDA
subcomponents. For example, the Forest Service's now rescinded NEPA
implementing regulations required scoping for all Forest Service
proposed actions, including actions that qualified for CEs (formerly 36
CFR 220.4(e)(1)). As discussed in more detail below, in the section
U.S. Forest Service NEPA Compliance Regulations (previously at 36 CFR
220), although there was no requirement in the text of those
regulations for written comments on CEs or EAs during scoping under the
Forest Service's prior regulations, agency practice generally provided
an opportunity for written comment.
[[Page 17077]]
USDA declines to continue to require scoping across-the-board
within the USDA NEPA regulations because scoping is not required by
statute for any level of NEPA review. Rather than adding undue process
for each and every action undergoing NEPA review, the USDA regulations
align with the statutory intent and purpose of NEPA and promote
responsible official discretion to determine when and how to conduct
scoping. With regards to the Forest Service, the agency has separate
statutory requirements to provide comment opportunities for certain
EAs. These comment opportunities are addressed in 36 CFR parts 218 and
219 and these regulations were not affected by the rescission of 36 CFR
part 220 or other aspects of this rulemaking.
Publication of a draft EIS and solicitation of public comments on a
draft EIS are not statutorily required by NEPA. CEQ's prior regulations
generally required, in relevant part, that agencies provide members of
the public an opportunity to comment on a draft EIS. 40 CFR 1503.1
(1978) (rescinded). However, Congress comprehensively amended NEPA in
the FRA to provide more prescriptive instructions to agencies on
completing timely and unified Federal NEPA reviews. 42 U.S.C. 4336a.
Specifically, Congress expressly provided for public comment for the
first time, at one (and only one) step of the process for developing an
environmental document: when an agency issues a notice of intent to
prepare an EIS, it must invite public comment on that notice regarding
``alternatives or impacts and on relevant information, studies, or
analyses with respect to the proposed agency action''. 42 U.S.C.
4336a(c). Congress retained the original obligation to make the EIS
available through the Freedom of Information Act (FOIA).
Congress elected only to require public comment at the notice of
intent stage in the NEPA process for an EIS. USDA's stance is that
comment at the notice of intent stage is unique in that it provides an
opportunity for fact-gathering from persons who may have relevant
(indeed, unique) information about environmental conditions of land
they live on or by with respect to projects that USDA subcomponents
have determined may have a reasonably foreseeable significant impact.
It makes sense that Congress required solicitation of public comment on
all notices of intent to prepare an EIS, while imposing no such
requirement with respect to an EA, because Congress imposed a shorter
deadline for agencies to develop an EA than to develop an EIS and
because an EA, by definition, is typically prepared only for proposed
actions that are not anticipated to have reasonably foreseeable
significant impacts. Accordingly, Congress intended that government and
public resources should focus on developing and facilitating public
engagement on matters considered in EISs.
As previously stated, the only statutory requirement to solicit
public comment is found at 42 U.S.C. 4336a(c), which requires that each
notice of intent to prepare an EIS shall include a request for public
comment on alternatives or impacts and on relevant information,
studies, or analysis with respect to the proposed agency action. There
is also a statutory requirement at 42 U.S.C. 4332(C) for the head of
the lead agency to consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise with respect
to any environmental impact involved. Both statutory requirements for
soliciting comments are accounted for in the revised regulations. USDA
will abide by the statutory requirement to solicit comments on EISs, as
outlined in this final rule, and declines to add comment opportunities
that are not statutorily required for EISs. As noted above, the Forest
Service continues to have separate statutory requirements to provide
public comment opportunities for certain EISs, as provided by 36 CFR
parts 218 and 219.
While USDA has considered and agrees with comments describing how
the agency decision-making process can be improved by public comments
and other forms of public participation, Congress has not elected to
make pre-decisional public involvement a requirement. Crucially,
however, the fact that USDA's NEPA procedures no longer prescribe a
particular public comment process or period over and above what NEPA
requires, apart from the USDA decision to require subcomponents to
publish a notice of intent in the Federal Register that invites comment
when intending to prepare an EIS, does not prevent responsible
officials from exercising their discretion to solicit additional public
comment when they determine that doing so would assist in reasoned
decision-making, not preclude them from meeting statutory deadlines
(for EAs/EISs), and not otherwise create unnecessary delays and
ambiguity in the environmental review and permitting process. USDA will
continue to make its environmental documents available to the public
consistent with FOIA, and this requirement is not affected by this
rulemaking.
Some commenters on the IFR disagreed with the clarification in the
revised regulations that while comments must be considered, there is no
requirement to address in writing how comments were considered,
alleging failure to address comments in writing would be a violation of
NEPA and/or the APA. Additionally, commenters that supported overall
streamlining of NEPA processes expressed concern that failure to
address in writing how comments were considered by the responsible
official could have unintended consequences under the guise of
efficiency. These commenters explained that implementation of agency
actions could become more difficult if and when these actions are
litigated, as the decision could be found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law under
the APA.
As clarified in the preamble of the IFR, there is no requirement in
NEPA to address comments in writing. Documentation of how comments were
considered is highly encouraged to demonstrate the rationale for how
the responsible official decides to proceed during the iterative
development of the proposed action and action alternatives and the
iterative analysis process. However, USDA prefers to maintain
responsible official discretion to determine when such documentation
would be useful, depending on the nature of the proposed action and the
comments received.
While there is no express requirement in NEPA or APA to address
comments on a NEPA analysis in writing, USDA subcomponents will
determine when such procedural requirements apply on a case-by-case
basis and address comments in writing as required or when determined
helpful at the discretion of the responsible official, with the
understanding that this discretionary additional process cannot
preclude the USDA subcomponent from meeting the statutory deadline for
completing an EA or EIS (NEPA Section 107(g); 42 U.S.C. 4336a(g)). NEPA
analyses are subject to judicial review under the APA, and this
regulation directs preparers to provide sufficient reasoning for
findings and decisions. The Department finds that subcomponents can
provide sufficient reasoning without prescribing a ``response to
comments'' or requiring comments to be addressed in writing. Agencies
have multiple obligations to consider, such as analyzing the most
important resource impacts within page limits and deadlines, and it is
up to preparers to prioritize the content and time of the analysis
while providing
[[Page 17078]]
sufficient reasoning for decisions made. The Department doesn't find
that a mandatory response to comment requirement meets that objective.
In summary, no changes have been made to section 1b.7(f) relative
to the version released with the IFR in July 2025.
7 CFR 1b.7(g) adds requirements for defining the ``Scope of
Analysis'' in an EIS. No changes have been made to this section
relative to the version released with the IFR in July 2025.
7 CFR 1b.7(h) gives subcomponents flexibility on how to format the
EIS so long as certain items are addressed. This section also
eliminates some aspects of EIS formatting previously required in the
CEQ NEPA Implementing Regulations, such as the summary, table of
contents, list of preparers, and index. These sections also add
additional time and process that do not meaningfully inform decision-
making and were more relevant when documents were primarily issued in
hard copy instead of electronically.
In the final rule, 7 CFR 1b.7(h) is revised to specify the scope of
analysis must be included in the elements for an EIS. 7 CFR
1b.7(h)(1)(v) is added to the list of items that should be included on
the cover of the EIS. Item (v) reads as, ``The unique identification
number, as required by Sec. 1b.9(u).'' Neither of these are new
requirements, as the requirement in 1b.9(g) to address scope of
analysis in the EIS and 1b.9(u) to provide a unique identification
number on EAs and EISs for tracking purposes were included in the IFR.
However, Department personnel pointed out that these requirements could
be easily missed in the process of developing an EIS because they were
not highlighted as required elements for an EIS.
In the final rule, 7 CFR 1b.7(h)(3) is revised to change the phrase
``negative environmental impacts'' to ``consequences''. As pointed out
by Department personnel, this change is necessary to align the
consideration (in the EIS) of the consequences of taking no action in
the case of a no action alternative with the significance
considerations outlined at 7 CFR 1b.2(f)(3)(iii)(A), which includes
more than just negative environmental impacts. 7 CFR 1b.7(h)(3)(i) is
revised to add the phrase ``and recommend alternative uses of available
resources for unresolved conflicts associated with the proposed action
(NEPA section 102(2)(H))'' at the end. This addition is necessary to
align with the statutory requirement to study, develop, and describe
appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative
uses of available resources (NEPA section 102(2)(H); 42 U.S.C.
4332(H)).
In the final rule, 7 CFR 1b.7(h)(4) is revised to change the word
``consequences'' to ``impacts''. As pointed out by Department
personnel, this change is necessary to align with terminology used in
1b.7(h)(5) (environmental impacts), which is what 1b.7(h)(4) is
referring to when clarifying the option to combine the potentially
affected environment discussion with the environmental impacts
discussion.
In the final rule, 7 CFR 1b.7(h)(8) is revised to clarify that the
certifying statement for page limits and deadlines does not require a
signature, as this was raising questions internally as to whether an
EIS needs to be signed by the responsible official to make this
statement ``certified''. The revised language also clarifies that
approval to publish the EIS to a USDA website indicates the responsible
official has reviewed the EIS and concurs with the certifying
statement.
7 CFR 1b.7(i) emphasizes the statutory requirement for EIS page
limits. In the final rule, 7 CFR 1b.7(i) and (i)(1) were revised to add
the citations to NEPA for page limits for EISs to clarify these page
limits are statutorily required and not a requirement established in
the USDA NEPA regulations.
7 CFR 1b.7(j) adds a requirement for the responsible official to
certify the EIS meets the page limit. No changes have been made to this
section relative to the version released with the IFR in July 2025.
7 CFR 1b.7(k) emphasizes the statutory deadline for EISs. It states
that responsible officials are to adhere to the statutory deadlines and
publish an EIS ``in as substantially complete form as is possible'' and
requires responsible officials to certify that they made a good faith
effort to satisfy the requirements in the statute. No changes have been
made to this section relative to the version released with the IFR in
July 2025.
7 CFR 1b.7(l) clarifies when seeking an extension to the deadline
is appropriate. In the final rule, this section is revised to remove
the erroneous first ``as'' in the phrase ``such as time as'', now
reading as ``such time as''.
7 CFR 1b.7(m) adds a requirement for the responsible official to
certify that the EIS was completed within the deadline. No changes have
been made to this section relative to the version released with the IFR
in July 2025.
The additions in sections 1b.7(i) through (m) provide the
Department's policy on how it will apply the new statutory deadlines in
NEPA Sec. 107(g), 42 U.S.C. 4336a(g) and page limits in NEPA Sec.
107(e), 42 U.S.C. 4336a(e). This policy is based on the rationale that
NEPA is governed by a ``rule of reason''. Dept. of Transp. v. Pub.
Citizen, 541 U.S. 752 (2004). In establishing deadlines for the EIS
process in the 2023 revision of NEPA, Congress supplied the measure of
that reason in NEPA Sec. 107(g), 42 U.S.C. 4336a(g). ``Time and
resources are simply too limited for us to believe that Congress
intended'' consideration under NEPA to extend indefinitely. Metro.
Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983)
(citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551
(1978)).
7 CFR 1b.7(n) gives the responsible official discretion to publish
a draft EIS and provides requirements for publishing the completed EIS
to a USDA website. Publishing the EIS on a USDA website stops the NEPA
deadline clock (2 years to complete an EIS). No changes have been made
to this section relative to the version released with the IFR in July
2025.
7 CFR 1b.7(o) specifies the requirement to file the EIS with the
Environmental Protection Agency is still the primary means for making
the completed EIS available to the public, in addition to publication
on a USDA website. In the final rule, the phrase ``Office of Federal
Activities'' was removed because EPA reorganized in 2025 and this
office now exists under another name. Due to the potential for future
reorganizations, USDA finds it prudent to keep the reference to EPA
general with regards to EIS filing procedures.
7 CFR 1b.8--Records of decision: This section is added to read as
indicated in 7 CFR 1b.8.
This section adds procedures for issuing records of decision and
gives subcomponents flexibility on how to format the record of decision
(ROD) so long as certain items are addressed. This section specifies
requirements to make the ROD available to the public and provide
notification to certain parties.
7 CFR 1b.8(a) specifies the general requirements for when a ROD
will be prepared. No changes have been made to this section relative to
the version released with the IFR in July 2025.
7 CFR 1b.8(b) outlines the elements that must be addressed in the
ROD. In the final rule, 7 CFR 1b.8(b)(6) is revised to include the
sentence, ``If the responsible official decides to adopt any
mitigation, state the statutory or regulatory authority for the
mitigation.'' This aligns with recommendations from some commenters on
the IFR, as indicated by the discussion on changes
[[Page 17079]]
made to the definition of ``mitigation'', found below in the preamble
for 7 CFR 1b.11--Definitions and Acronyms.
7 CFR 1b.8(c) includes requirements for publishing the ROD. No
changes have been made to this section relative to the version released
with the IFR in July 2025.
7 CFR 1b.8(d) includes requirements for the responsible official to
provide notifications of the availability of the ROD. In the final
rule, this section was revised to remove erroneous inclusion of the
word ``during'' in the phrase ``and any parties that submitted comments
during in response to publication of the notice of intent''.
7 CFR 1b.8(e) clarifies timing of action. Notwithstanding other
statutory or regulatory requirements, there is no longer a requirement
to delay implementation of the action once the Environmental Protection
Agency has published the notice of availability for the EIS, the ROD
has been made available to the public, and necessary notifications are
provided. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.9--Efficient and effective environmental reviews: This
section is added to read as indicated in 7 CFR 1b.9.
This section adds best practices for efficient and effective
environmental reviews.
7 CFR 1b.9(a), (b), (c), and (d) provides best practices for
managing the proposal record and includes recommendations for
assembling and managing documentation developed during the
environmental review process, responding to Freedom of Information Act
requests, managing potential withholdings and privileges, and managing
classified information.
In the final rule, 7 CFR 1b.9(a) is revised to clarify that the
proposal record is not determinative of the scope and content of an
administrative record prepared for litigation pursuant to the APA or
other law.
No changes have been made to 7 CFR 1b.9(b), (c), or (d) relative to
the version released with the IFR in July 2025.
7 CFR 1b.9(e) outlines best practices for reducing paperwork. USDA
has removed usage of the terms ``tiering'' and ``adopting'', which were
described in the now rescinded CEQ NEPA Implementing Regulations. The
term ``rely'' or ``relying'' is used (instead of adopting or tiering)
as this is the term used in NEPA when referring to programmatic
documents (NEPA Sec. 108; 42 U.S.C. 4336b) and expands the original
concept of ``adopting'' (now relying) to include not only whole
environmental documents but also portions thereof, to include
supporting analysis that may not be included in an environmental,
finding, or decision document in whole. To avoid confusion with NEPA
Sec. 109 (42 U.S.C. 4336c), the term ``adopting'' is only used in
reference to adopting another Federal agency's CEs (the subject of NEPA
Sec. 109) and is no longer used in the context of adopting analyses.
Additional clarification is provided regarding reliance on programmatic
documents, to align with language added to NEPA, as amended in 2023.
The terms ``incorporating'' or ``incorporating by reference'' continue
to apply and are included in the regulations.
Several commenters on the IFR disagreed with the page limits and
deadlines for EAs and EISs, as prescribed to in 7 CFR 1b.9(e) and other
sections of the revised regulations. Commenters described the page
limits and deadlines as being ``arbitrary and capricious'' and alleged
they are being used by the Department to circumvent adequate effects
analysis. Other commenters supported the establishment of page limits
and deadlines and encouraged strict adherence to these. Additionally,
some commenters proposed establishment of page limits and deadlines for
CEs that require NEPA documentation, 10 pages and 3 months
respectively, with recommendations for when the timeline would start.
The page limits and deadlines for EAs and EISs, as referred to in
the revised regulations, are statutory requirements now included in
NEPA, as amended by the FRA. The page limit and deadline discussion in
the revised regulations merely emphasizes and reflects congressional
intent for succinct and timely completion of EAs and EISs. Given the
variability in complexity of actions covered by CEs, whether the
categories are promulgated by agencies or statutorily authorized, USDA
declines to establish page limits or timelines for those categories
requiring NEPA documentation as laws considered during the
environmental review process, such as Endangered Species Act or
National Historic Preservation Act, could necessarily require page
limits or timelines longer than those proposed.
In the final rule, 7 CFR 1b.9(e)(7) is revised as the previous
wording in the phrase ``developed specifically to support that
environmental document or associated decision document'' was
interpreted to mean that information that may be developed for a
previous project and relied on for a project at hand (as described in 7
CFR 1b.9(e)(8)) could not also be incorporated by reference.
Information that is initially developed for another project could be
relied on for a project at hand and also incorporated by reference.
USDA's intent was not to preclude incorporation by reference of
information that may have initially been developed for another project
and is being relied on for the project at hand; therefore, the phrase
``developed specifically to support that environmental document or
associated decision document'' is revised to now read as: ``that
specifically supports the environmental document or associated finding
or decision document''. The term ``finding'' is added to this phrase as
well, as CEs and EAs have finding documents (finding of applicability
and no extraordinary circumstance and finding of no significant impact,
respectively), not decision documents like an EIS (record of decision).
Additionally, 7 CFR 1b.9(e)(7)(i) is revised to add the phrase
``and make the materials reasonably available for review by potentially
interested parties'' at the end of the sentence. 7 CFR 1b.9(e)(7)(ii)
is revised as the previous wording was being interpreted by Department
staff to imply that information could not be incorporated by reference
after an opportunity for comment was provided. The wording, as included
in the IFR, was: ``Subcomponents may not incorporate material by
reference unless it is reasonably available for inspection by
potentially interested persons within the time allowed for comment,
when an opportunity for comment is provided.'' It is revised to read
as: ``When an opportunity for comment is provided and the documents or
information being commented on refer to material incorporated by
reference, this material must be reasonably available for inspection,
in draft or final form, by potentially interested persons within the
time allowed for comment.'' This better conveys USDA's intent that,
when USDA solicits comment on a proposal that incorporates by reference
certain documents or information, those materials must be readily
available for inspection during the comment period--in draft or final
form--as information relied on during a comment period may be
preliminary and then updated in response to comment received. (In those
instances where USDA is incorporating by reference certain documents or
information but is not soliciting comment, those materials incorporated
by reference will also be made readily available.) Material may also
continue to be incorporated by
[[Page 17080]]
reference after an opportunity for comment is provided, including in
response to comments. Nothing in this provision requires USDA
subcomponents to provide an opportunity to comment where not otherwise
required or where comment would be inconsistent with USDA's NEPA
procedures. 7 CFR 1b.9(e)(7)(iii) is revised with clarifying language
that unredacted information that is privileged, classified, or subject
to any other potential withholdings should also not be incorporated by
reference.
Several commenters on the IFR did not support the removal of the
Determination of NEPA Adequacy (DNA) as part of rescinding the Forest
Service NEPA regulations previously found at 36 CFR 220. These
commenters did not find the use of ``relying on analysis'' to be a
sufficient substitute for the DNA, as formerly outlined in the Forest
Service NEPA regulations. Commenters highlighted the efficiencies
provided by use of DNA as rationale for including this provision in the
revised departmental NEPA regulations. Still other commenters disagreed
with the concept of a DNA and relying on analysis altogether, asserting
that NEPA does not provide for use of previously completed analysis to
be applied to other actions.
The DNA only existed in the Forest Service NEPA regulations (36 CFR
part 220). The DNA was a tool to help evaluate the suitability of a
previously completed analysis document for potential application to a
new proposed action. In the 5 years the DNA was available (from the
2020 revision to 36 CFR part 220 to the rescission of this regulation
in July 2025), the agency only used this tool four times. The
Department coordinated with Forest Service staff when crafting the
language used in 7 CFR 1b.9(e)(8). The Forest Service does not see the
elimination of the DNA as a hinderance to gaining efficiencies and
conducting adequate consideration of effects given the provision
included in the departmental NEPA regulations for ``relying'' on
analysis. With the change in the regulations, the Forest Service plans
to use 7 CFR 1b.9(e)(8) as a DNA-type tool for assessing and relying on
previously completed analysis, either in whole or in part, whether the
analysis was completed within agency or by another agency or external
party. The efficiencies gained by relying on existing analyses are now
appropriately expanded to all USDA subcomponents.
In the final rule, 7 CFR 1b.9(e)(8) is revised to remove the phrase
``it makes sense to do so given'', as recommended by some commenters on
the IFR. The sentence where that phrase is found now reads as: ``USDA
subcomponents may rely on previous analysis completed by the
subcomponent or analysis completed by any other Federal agency where
the nature of the proposal, the potentially affected environment, and
the anticipated effects are substantially the same for the current
proposal being considered''. The following sentence, which was
previously included 7 CFR 1b.9(e)(8)(i), was moved to 7 CFR 1b.9(e)(8)
in the final rule with minor edits: ``The USDA subcomponent relying on
the previously completed analysis shall specify the reliance in the
applicable environmental document or finding or decision document and
provide explanation of how the nature of the proposal, the potentially
affected environment, and the anticipated effects (both quantitatively
and qualitatively) were determined to be substantially the same.'' (In
the final rule, in the phrase ``not included in an EA, EIS, FONSI, ROD
or FANEC documentation itself'', the erroneous inclusion of
``documentation'' was removed.)
The phrase ``substantially the same'' was already used in 7 CFR
1b.3(h) and was used in 7 CFR 1b.9(e)(8)(i) (as published in the IFR);
therefore, this phrase is not solely introduced as part of this final
rule but is appropriately used in place of language that was similar in
meaning but not exact in wording. The phrase ``substantially the same''
is used for these revisions as it refers to retaining the main
characteristics of intent, function, and impacts (effects) of a
proposal while allowing minor variations for specific situations (e.g.,
tailoring design criteria or mitigations to account for unique aspects
of the affected environment, or explaining why effects have slight
variation but the same outcome with regard to degree of anticipated
effect). The focus on main characteristics permits flexibility for
practical application without requiring factors or terminology to be
identical in every way.
7 CFR 1b.9(e)(8)(i) is revised in the final rule to not repeat
discussion included in the previous paragraph and now just focuses on
how EAs and EISs relied on in full should be published to a USDA
website. 7 CFR 1b.9(e)(8)(ii) is revised in the final rule to specify
how reliance on previous CE determinations will be documented for those
CEs requiring NEPA documentation, rather than referring back to Sec.
1b.3(h), which is revised as described previously in this preamble.
7 CFR 1.9(f) outlines best practices for reducing delay. In the
final rule, 7 CFR 1b.9(f)(9) is revised to remove erroneous inclusion
of the word ``during'' in the phrase ``Requiring comments received
during in response to publication of a notice of intent''.
7 CFR 1b.9(g), (h), (i), and (j) emphasizes the importance of
interdisciplinary preparation, methodology, scientific accuracy, and
disclosing information availability. No changes have been made to these
sections relative to the version released with the IFR in July 2025.
7 CFR 1b.9(k) adds public involvement discussions that encourage
USDA subcomponents to consider the most effective ways of engaging and
informing the public, while allowing necessary discretion on the
methods to use given the nature of the proposal and the public entities
most likely to be interested or affected. No changes have been made to
this section relative to the version released with the IFR in July
2025.
7 CFR 1b.9(l) and (m) emphasize the need to eliminate duplication
with State, Tribal, and local procedures and promotes timely and
unified Federal reviews, to include outlining processes for identifying
lead, joint, and cooperating agencies, and provides process for
resolving disagreements concerning major Federal actions.
Several commenters on the IFR disagreed with the revised
regulations not specifying how responsible officials must engage
cooperating agencies. These commenters suggested the final rule specify
how responsible officials will ``request the participation of each
cooperating agency at the earliest practicable time'', as required by
NEPA, and ultimately how the lead agency ``may . . . designate any
Federal, State, Tribal, or local agency that has jurisdiction by law or
special expertise with respect to any environmental impact involved in
a proposal to serve as a cooperating agency''--with some asserting that
designation of cooperating agencies is required by NEPA. These
commenters contend that early engagement with state, local, and Tribal
governments promotes efficiency as these entities often bring local
knowledge, data, and working relationships to the NEPA process.
42 U.S.C. 4336a(a)(3) states that a ``lead agency may, with respect
to a proposed agency action, designate any Federal, State, Tribal, or
local agency that has jurisdiction by law or special expertise with
respect to any environmental impact involved in a proposal to serve as
a cooperating agency''. A lead agency may, but is not statutorily
required to, designate cooperating agencies; however, USDA
[[Page 17081]]
recognizes the value of inviting eligible agencies to participate as
cooperating agencies early in the proposal intake and development
process, especially when an eligible agency will need to rely on an EA
or EIS to authorize actions associated with the proposal for which they
have jurisdiction by law. Therefore, the final rule adds a requirement
for when a responsible official will extend an invitation to, or
approve a request from, an eligible agency to be a cooperating agency,
as described in the next paragraph.
Rather than adding unnecessary process for each and every action
undergoing NEPA review, the USDA regulations align with the statutory
intent and purpose of NEPA and generally promote responsible official
discretion to determine when and how to invite and designate
cooperating agencies. Clarification is added in the final rule at 7 CFR
1b.9(m)(1)(ii) that when a USDA subcomponent is serving as the lead
agency, it will fulfill the role of lead agency as outlined at 42
U.S.C. 4336a(a)(2), which includes statutory requirements on engaging
cooperating agencies if any have been designated. The cooperating
agency section at 7 CFR 1b.9(m)(3) was expanded in the final rule to
clarify expectations of responsible officials for considering eligible
agencies, as outlined in 42 U.S.C. 4336a(a)(3), as cooperating
agencies. A requirement is added that when an eligible agency will need
to rely on an EA or EIS to authorize actions associated with the
proposal for which they have jurisdiction by law, the responsible
official for the lead USDA subcomponent will extend an invitation to,
or approve a request from, the eligible agency.
7 CFR 1b.9(n) adds additional clarification on how USDA agencies
should proceed with unified documentation, as required by NEPA, where
another Federal agency is the lead agency. In the final rule, 7 CFR
1b.9(n) is revised to add a sentence that specifies that when an
environmental document is being developed by more than one USDA
subcomponent, all USDA subcomponents shall contribute to the completion
of one environmental document and shall not develop separate documents
for each subcomponent, unless justified by other statutory requirements
that make it more efficient to do so. This is in response to recent
internal experiences where USDA subcomponents have continued to push
for doing their own documents rather than unified documentation for
actions covered by more than one USDA subcomponent. 7 CFR 1b.9(n)(2)
was also revised to add ``or authorizing'' to the sentence that begins
as ``When multiple signature blocks are included, the document shall
specify what each signing responsible official is approving [or
authorizing] . . .''. This was in response to internal feedback that
there is a difference between ``approving'' and ``authorizing'' and the
regulations should account for this when requiring specification of
what responsible official is approving or authorizing.
7 CFR 1b.9(o) specifies the agency official at USDA who will
determine when a disagreement needs to be elevated to CEQ when there
are interagency disagreements concerning the designation of a lead or
joint agency or disagreements over proposed major Federal actions that
might cause unsatisfactory environmental effects.
7 CFR 1b.9(p), (q), and (r), outlines recommended approaches for
preparing EAs and EISs for programmatic actions and provides direction
for relying on and reevaluating environmental documents. No changes
have been made to sections 1b.9(p) and (q) relative to the version
released with the IFR in July 2025.
A commenter raised concerns that it was not clear what triggered
the need to reevaluate an EIS and additionally what triggered the need
to issue a supplemental EIS. In the final rule, 7 CFR 1b.9(r) is
revised to clarify what triggers the need to reevaluate any
environmental document, as wording in the IFR was creating both
external and internal confusion. The phrase ``remains to occur'' was
replaced with ``incomplete and ongoing'' to be more specific to the
status of the action, which may have started but has not been
completed. Paragraphs (1), (2), and (3) are added to 7 CFR 1b.9(r)
provide necessary direction to USDA subcomponents on how to proceed
based on the outcome of the reevaluation for environmental documents
that are not an EIS that has been filed with the Environmental
Protection Agency (EPA), as well as for EISs that have been filed with
the EPA. In specifying procedures for EISs, it is also necessary to
specify procedures for those environmental documents that are not an
EIS. In addition to the public comment, since publishing the IFR,
numerous USDA staffs have inquired about the process and requirements
for making updates to environmental documents. Rather than having each
USDA subcomponent develop this guidance, USDA has determined it is
appropriate to include these procedures in the revised regulations to
ensure consistency and transparency in how environmental documents are
reevaluated, updated, necessary notifications considered and made, and
document access provided. The revised regulations still provide for a
necessary level of responsible official discretion when it comes to
documentation formatting, as this is necessary to account for unique
program circumstances across USDA mission areas.
7 CFR 1b.9(s) and (t) outline approaches for evaluating proposals
for rules, regulations, and legislation. No changes have been made to
these sections relative to the version released with the IFR in July
2025.
7 CFR 1b.9(u) specifies the need to apply unique identification
numbers to EAs and EISs. In the final rule, 7 CFR 1b.9(u) is revised to
change the word ``on'' to ``for'' in the phrase ``which the
subcomponent will reference on other documents associated with the
proposal''. This correction was necessary as it was being interpreted
by Department staff that every document included in a proposal record
for an EA or EIS would need to have the unique identification number
added to it. The intent is that the unique identification number is
used to associate other published documents with the EA or EIS, such as
the FONSI (for an EA) or ROD (for an EIS). The unique identification
number can also be used in the proposal record file name but does not
need to be added to every document included in the proposal record.
7 CFR 1b.9(v) adds direction on how to proceed for emergencies,
specifically allowing for actions to address imminent threats prior to
any NEPA analysis.
Some commenters on the IFR expressed concern with the emergency
authorities and the potential for responsible officials to mis-apply
them. Some commenters also questioned the authority of the Department
to establish emergency authorities and recommended carrying over
language from the rescinded CEQ NEPA regulations.
As explained in the preamble for the IFR, some emergency
authorization or emergency procedure language previously included in
agency-specific NEPA regulations has been moved to this section in 7
CFR 1b, with much of the language being revised to provide for
consistent department-wide language but with the intent remaining the
same, as described in the agency-specific regulation changes included
below. Where language and procedures were essentially the same across
agencies, these procedures are now discussed only once. Where
procedures
[[Page 17082]]
differed necessarily across agencies, these different procedures are
included. Specifics as to some wording changes that were made for
agency-specific procedures are discussed under the applicable agency-
specific regulation, listed below. This section adds a general
emergency action provision for agencies that did not have such
provisions in their regulations to coordinate on issuing alternative
arrangements for complying with NEPA when completing a CE or EA when
reasonably foreseeable significant effects are not anticipated. It
specifies that for emergency actions where reasonably foreseeable
significant impacts are likely, the responsible official will consult
with CEQ about alternative arrangements for NEPA compliance.
The intent of NEPA is to improve agency decision-making and inform
the public of the anticipated degree of effects associated with major
Federal actions. There are instances where emergency circumstances
exist such that Federal agencies must make real-time decisions and
implement actions to address imminent threats to life, property, or
important natural, cultural, or historic resources. Examples include
wildfire suppression response activities or response to natural
disaster events impacting basic functionality of infrastructure and
utility services that are critical to public safety and initial
emergency response and recovery efforts (e.g., transmission lines,
communication networks, public transportation networks and systems).
The immediacy with which these actions need to be implemented makes it
infeasible and impracticable to complete a NEPA analysis without
incurring a high likelihood of harm to life, property, or important
natural, cultural, or historic resources. Where analysis and
documentation are feasible and practicable, even when focused or
delayed, agencies should use 7 CFR 1b.9(v)(2) or (3), as applicable.
The need to allow for implementation of actions for emergency
circumstances has been standard practice as evidenced by the rescinded
Forest Service (36 CFR part 220) (73 FR 43084-01 (July 24, 2008)) and
Rural Development (7 CFR Subtitle B part 1970) (81 FR 11000-01 (March
2, 2016)) NEPA regulations. While wording varied between the
regulations, both included a category of emergency actions that
provided for immediate implementation and did not require NEPA analysis
prior to implementation, though did require that adverse effects be
considered and mitigated where possible (36 CFR 220.4(b)(1); 7 CFR
1970.18(a)). Both regulations also included a category of emergency
actions that may need to be implemented before NEPA analysis was
completed, but for which alternative arrangements could be approved to
allow the actions to be initiated prior to documenting and disclosing
the effects of those actions (36 CFR 220.4(b)(2) and (3); 7 CFR
1970.18(b) and (c)).
In response to the concerns raised, and to align with guidance
issued by CEQ on January 21, 2026 regarding emergencies and NEPA, the
following revisions are made to 7 CFR 1b.9(v) to better clarify the
intent of emergency actions.
In the final rule, 7 CFR 1b.9(v) is revised. This section was
called ``Emergencies--Immediate actions'' in the IFR and in the final
rule is called ``Emergency actions''. Paragraph 1b.9(v) is now
paragraph 1b.9(v)(1) and is revised to clarify that NEPA's analysis and
documentation requirements should not impede timely execution of action
needed to address imminent threats to life, property, or important
natural, cultural, or historic resources. In the IFR, this section read
as: ``If emergency circumstances exist that make it necessary to take
action to mitigate harm to life, property, or important natural,
cultural, or historic resources, the responsible official may take such
actions without preparing an environmental analysis or environmental
document. When taking such actions, the responsible official shall take
into account the probable environmental consequences of the emergency
action and mitigate foreseeable adverse environmental effects to the
extent practical.'' Paragraph 1b.9(v)(1) now reads as: ``If emergency
circumstances exist that make it necessary to take action to address
imminent threats to life, property, or important natural, cultural, or
historic resources, the responsible official may take such actions
without preparing a NEPA analysis. When taking such actions, the
responsible official shall take into account the probable environmental
consequences of the emergency action and consider taking steps to
mitigate reasonably foreseeable adverse environmental effects to the
extent practical and consistent with agency authority.'' The term
``immediate'', as it relates to describing the type of actions, has
been removed as the section is being retitled to ``emergency actions''.
The term ``imminent threat'' is added to describe why the actions need
to be implemented without preparing a NEPA analysis and to align with
CEQ guidance on emergencies. The term ``NEPA analysis'' replaces the
phrases ``environmental analysis or environmental documentation'' to
clarify the emergency action procedures are only applicable to NEPA.
The phrase ``and consistent with agency authority'' is added to the
last sentence to recognize that the responsible official's ability to
mitigate reasonably foreseeable adverse effects is also predicated on
agency authority to do so.
In the final rule, 7 CFR 1b.9(w) is removed. Paragraphs 1b.9(w)(1)
and (w)(2) in the IFR are now paragraphs 7 CFR 1b.9(v)(2) and (3),
respectively, in the final rule.
In the final rule, the first sentence of 7 CFR 1b.9(v)(2) (formerly
1b.9(w)(1)) is revised. In the IFR, this section read as: ``When urgent
actions are not likely to have a reasonably foreseeable significant
environmental impacts, but an emergency exists that makes it necessary
to take urgently needed actions before preparing documentation
associated with a categorical exclusion, environmental assessment, or
finding of no significant impact, USDA subcomponents may authorize
alternative arrangements for environmental compliance so long as the
alternative arrangements are limited to actions necessary to address
the emergency circumstance.'' In the final rule, it reads as: ``When
taking actions other than those described in paragraph (1) that are not
likely to have reasonably foreseeable significant impacts, but
emergency circumstances exist that make it necessary to take actions
before preparing a categorical exclusion that requires NEPA
documentation, an environmental assessment, or a finding of no
significant impact, USDA subcomponents may authorize alternative
arrangements for NEPA compliance so long as the alternative
arrangements are limited to actions necessary to address the emergency
circumstance.'' The term ``urgent'', as it relates to describing the
type of actions, has been removed as there are now only ``emergency
actions''. The phrase ``reasonably foreseeable significant
environmental impacts'' is changed to ``reasonably foreseeable
significant impacts'' to be consistent with terminology used in statute
and elsewhere in the revised regulations. The term ``NEPA compliance''
replaces the phrase ``environmental compliance'' to clarify the
emergency action procedures are only applicable to NEPA.
In the final rule, 7 CFR 1b.9(v)(3) (formerly 1b.9(w)(2)) is
revised. In the IFR, the first sentence read as: ``When urgent actions
are likely to have significant environmental impacts, but an emergency
exists that makes it necessary to take urgently needed actions before
preparing an
[[Page 17083]]
environmental impact statement or record of decision, the responsible
official taking the action shall request consultation . . .''. In the
final rule, the first sentence is revised to read as: ``When taking
actions other than those described in paragraph (1) that are likely to
have reasonably foreseeable significant impacts, but emergency
circumstances exist that make it necessary to take the actions before
preparing an environmental impact statement or record of decision, the
responsible official taking the action shall request consultation . .
.''. The term ``urgent'', is as it relates to describing the type of
actions, has been removed as there are now only ``emergency actions''.
The phrase ``significant environmental impacts'' is changed to
``reasonably foreseeable significant impacts'' to be consistent with
terminology used in statute and elsewhere in the revised regulations.
In the 1b.9(v)(3) paragraph, after references to the USDA senior agency
official, ``or their designee'' is added as this clarification aligns
with 7 CFR 1b.2(b)(2)(vi) (as renumbered in the final rule, and which
did not otherwise change as part of the final rule), which allows the
senior agency official to delegate certain duties for NEPA compliance.
7 CFR 1b.10--Documents prepared by applicant or third party: This
section is added to read as indicated in 7 CFR 1b.10.
This section adds procedures for EAs and EISs prepared by an
applicant or third party. Specifies responsibilities of USDA
subcomponents when documentation is being prepared by an applicant or
third party. Recognizes that NEPA Sec. 107(f), 42 U.S.C. 4336a(f),
allows an applicant or other third party (e.g., contractor) to complete
an EA or EIS in whole or in part, under supervision of a Federal
agency. For purposes of the USDA NEPA regulations, applicant or other
third-party preparation is expanded to include, in whole or in part,
documentation for a finding of applicability and no extraordinary
circumstance for CEs requiring NEPA documentation. This is to account
for the various ways USDA subcomponents currently work with applicants
and third parties to complete documentation associated with a proposal,
which includes more than just the preparation of EAs and EISs.
Applicants often complete documentation for actions that fit CEs
requiring NEPA or statutorily required environmental review
documentation.
Some commenters on the IFR disagreed with documentation prepared by
an applicant or third party being expanded to include documentation for
CEs, alleging this is not permitted by NEPA as the Act only addresses
this for EAs and EISs. However, NEPA does not speak to documentation
for CEs. 42. U.S.C. 4336a(f) requires procedures for project sponsor
preparation of EAs and EISs, but does not require procedures for
project sponsor preparation of CEs. The absence of a requirement is not
the same as a prohibition. Disallowing sponsor preparation of a lesser
form of NEPA review than an EA or EIS would seem to be inconsistent
with Congress's intent. The USDA NEPA regulations provide procedures
for CE determinations at 7 CFR 1b.3 and therefore it is also
appropriate to provide procedures for applicants or third parties who
are developing NEPA documentation for those CEs that require it.
In the final rule, this section is revised to remove erroneous uses
of the term ``agency'' and replace it with ``subcomponent'' for
consistency with other terminology used throughout the revised
regulations.
7 CFR 1b.11--Definitions and Acronyms: This section is added to
read as indicated in 7 CFR 1b.11.
This section adds cross-references to key definitions from NEPA and
carries over some definitions from the 2020 CEQ NEPA Implementation
Regulations (such as the definition for ``effects''), with
modifications made for some definitions such as: mitigation (or
mitigation measure) and significance.
In the final rule the definition of ``Agency'' (7 CFR 1b.11(a)(3))
is revised to remove ``the Unites [sic] States Department of
Agriculture'' and instead use the USDA acronym. This aligns with the
use of ``USDA'' throughout the regulations.
Several commenters on the IFR stated that consideration of direct,
indirect, and cumulative effects should explicitly be stated as a
requirement in the revised regulations and the definition of
``effects'' should be revised to include these terms.
Sections 1b.5 and 1b.7 in the revised regulations include ``Scope
of Analysis'' direction for EAs and EISs. The scope of analysis
direction stems from the U.S. Supreme Court decision in Seven County
Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct. 1497
(2025). The revised regulations clarify that when completing an EA or
EIS, a USDA subcomponent will document where and how it drew a
reasonable and manageable line relating to its consideration of any
environmental effects from the proposed action (and action
alternatives, if any) or project at hand that extend outside the
geographical territory of the proposal or might materialize later in
time. To the extent it assists in reasoned decision-making, the USDA
subcomponent may, but is not required to by NEPA, analyze environmental
effects from other actions separate in time (i.e. temporal), or
separate in place (i.e. spatial), or that fall outside of the USDA
subcomponent's regulatory authority, or that would have to be initiated
by a third party. If the USDA subcomponent determines that such
analysis would assist it in reasoned decision-making, it will document
this determination in the EA or EIS and explain where it drew a
reasonable and manageable line relating to the consideration of such
effects from such separate actions.
Instead of formulating the evaluation of environmental effects of
USDA subcomponent actions using the artificial devices of ``direct,''
``indirect,'' and ``cumulative'' effects that do not appear in the
statute, USDA's NEPA regulations focus on the underlying principle of
what constitutes an ``effect''. In reorienting the focus of its
regulations, USDA does not change or purport to change the scope of
effects that USDA subcomponents are required by statute to consider.
Both before and after the updates to USDA's NEPA regulations, USDA
subcomponents were and are required to consider effects that are both
reasonably foreseeable and have a reasonably close causal relationship
to their proposed actions and reasonable action alternatives,
consistent with the statute, as clarified by the Supreme Court in the
Public Citizen and Seven County decisions.
Additionally, in light of Supreme Court's Seven County decision,
USDA elected to update its regulations to reflect the phrasing provided
by the Supreme Court regarding effects. That is, ``To the extent it
assists in reasoned decision-making, the USDA subcomponent may, but is
not required to by NEPA, analyze environmental effects from other
actions separate in time, or separate in place, or that fall outside of
the USDA subcomponent's regulatory authority, or that would have to be
initiated by a third party. If the USDA subcomponent determines that
such analysis would assist it in reasoned decision-making, it will
document this determination in the environmental assessment [or
environmental impact statement] and explain where it drew a reasonable
and manageable line relating to the consideration of such effects from
such separate actions.'' 7 CFR 1b.5(b)(3) and 7 CFR 1b.7(g)(3).
``Similarly, the USDA subcomponent will document in the
[[Page 17084]]
environmental assessment [or environmental impact statement] where and
how it drew a reasonable and manageable line relating to its
consideration of any environmental effects from the proposed action
(and action alternatives, if any) or project at hand that extend
outside the geographical territory of the proposal or might materialize
later in time.'' 7 CFR 1b.5(b)(2) and 7 CFR 1b.7(g)(2). Id. (citing
Seven County Infrastructure Coalition v. Eagle County, Colorado, 145 S.
Ct. 1497 (2025)).
This language, adapted directly from the Seven County decision,
provides USDA with direction on how to consider, as appropriate, the
environmental consequences of an USDA subcomponent's action that may
previously have been expressed in concepts such as ``indirect effects''
and ``cumulative effects''. This focus on the meaning of ``effect'' has
led USDA to restore in large part the concept of ``connected action''
to the way it was defined in the pre-2020 CEQ regulations, with
clarifying emphasis that the subject of analysis is the Federal action,
not action taken by non-Federal entities. See 40 CFR 1508.25(a)(1)
(rescinded). Even as originally defined in the pre-2020 CEQ
regulations, the term ``cumulative impact'' referred to the
``incremental impact'' of the proposed action in relation to the
context within which that action was taken. See 40 CFR 1508.7
(rescinded). That is, the focus, even of the ``cumulative impact
analysis'' should always have been on change wrought by the effects of
the proposed action, and the Seven County decision merely refines that
focus.
In summary, NEPA does not include a statutory requirement to
analyze direct, indirect, or cumulative effects, and the Supreme Court
Seven County decision further validates this interpretation. USDA's
Scope of Analysis provision sufficiently addresses the concept of
direct, indirect, and cumulative effects and provides for their
consideration in reasoned decision-making.
Some commenters assert that the revised regulations should require
that NEPA effects analysis address climate change and environmental
justice considerations.
NEPA does not contain any provisions addressing any specific type
of environmental impact. Direction from within the executive branch may
in the past have pushed agencies to place special emphasis upon certain
categories of effects (i.e., ``climate change,'' ``environmental
justice''), but that direction has now been rescinded. See 91 FR 618
(Jan. 8, 2026) (final rule rescinding CEQ's NEPA regulations);
Executive Order 14173, Ending Illegal Discrimination and Restoring
Merit-Based Opportunity (Jan. 21, 2025) (revoking Executive Order
12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations; Executive Order 14154,
Unleashing American Energy, 90 FR 8,353 (Jan. 20, 2025) (revoking
Executive Order 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All). In other words, the distinctions and
concepts identified by commenters do not exist in statute and were
conceptual creations of CEQ, some agencies, and courts to formulate
analysis and guide agency decision-making.
In the final rule, the definition of ``Effects'' (7 CFR
1b.11(a)(12)) is revised to reword the last sentence in bullet (i). The
sentence previously read as: ``Effects may also include those resulting
from actions that may have both beneficial and detrimental effects,
even if on balance the USDA subcomponent believes that the effect will
be beneficial.'' It now reads as: ``Effects appropriate for analysis
under NEPA may be either beneficial or adverse, or both, with respect
to these values.'' This change better ensures a consistent definition
of effects across Federal departments and agencies. In this definition,
bullet (iii) was also removed as this bullet was included prior to
adding the Scope of Analysis direction included for EAs and EISs. It
was erroneously left in the IFR and now removed as it conflicts with
that direction.
``Mitigation'' (7 CFR 1b.11(a)(29)) is added to clarify mitigations
are determined by the responsible official and are a reactive response
to the effects analysis and are documented in the finding of no
significant impact or record of decision. See further discussion below
on adding the term ``design criteria'' to the definition section. In
the final rule, the definition of ``Mitigation'' is revised to include
the following sentence, as recommended by some commenters on the IFR:
``When adopting mitigations as part of the FONSI or ROD, the statutory
or regulatory authority for any mitigation must be provided.'' This
addresses the concern that unless mitigations are tied to statute or
regulation, applicants/third parties could be subject to costly and
burdensome mitigations at the whim of the responsible official. Minor
edits were also made to the second sentence of the definition, changing
``mitigations'' to ``mitigation measures'' and adding the acronyms for
FONSI and ROD.
``Significance'' (7 CFR 1b.11(a)(50)) is defined as explained under
the changes made to section 7 CFR 1b.2.
This section also adds definitions for new terms introduced in the
regulations, such as: design criteria (or design elements or design
features), emergency, environmental review, extraordinary
circumstances, finding of applicability and no extraordinary
circumstance, issue, level of NEPA, NEPA process, notice of
availability, proposal record, proposed action, purpose and need,
scale, scope, senior agency official, and substantive.
The definition for ``Design criteria'' (7 CFR 1b.11(a)(11)) is
added to demonstrate that when these criteria are added to proposed
actions or alternatives to achieve similar outcomes of ``mitigations''
(7 CFR 1b.11(a)(29)), they are added in response to an issue and
therefore once the issue has been addressed in this manner it is not an
issue that needs to be analyzed in detail. Design criteria are
proactive responses to issues identified early in the interdisciplinary
process of developing the proposed action and/or action alternatives or
when conducting preliminary effects analysis, whereas adding
``mitigations'' (or ``mitigation measures'') is a reactive response by
the responsible official to the effects analysis. The definition
clarifies that these two terms achieve similar outcomes (for example,
avoid or minimize adverse effects), yet apply in distinctly different
ways, and also facilitate analytic analysis.
In the final rule, the definition for ``Design criteria'' is
revised to include ``resource protection measures'' and ``best
management practices'' as alternative terms that mean the same thing,
as informed by internal feedback that these are terms used by some USDA
subcomponents. The phrase ``proactively added to the proposed action''
in the first sentence is revised to now read as ``that are included as
part of the proposed action''. The phrase ``in coordination with the
applicant if applicable'' was also added to the first sentence as
recommended by some commenters on the IFR, with the first sentence now
reading as: ``Design criteria (or design elements, design features,
[resource protection measures], [best management practices], or
conservation practices etc.) means constraints or requirements
proactively added to the proposed action (or action alternatives) or
through an iterative interdisciplinary process, in coordination with
the applicant if applicable, to avoid or minimize
[[Page 17085]]
adverse impacts.'' This change was made to address the concern raised
by some commenters on the IFR that USDA subcomponents could add costly
and/or burdensome design criteria to proposals submitted by applicants/
third parties without their input or consent. The second to last
sentence in the definition paragraph is revised with wording that makes
it clear design criteria are part of the proposed action (similar
language was also added to the last sentence of the definition
paragraph) and wording is added to clarify that recommendations for
design criteria could be identified as part of interdisciplinary
preparation or through external comments. Verbs in (i) through (iii)
were revised to eliminate the present participle (removed ``ing''
endings).
Some commenters on the IFR disagreed with the revised regulations
highlighting the differences between ``design criteria'' and
``mitigation measures''. Some had particular concern with the phrase
used in the definition of design criteria that states, ``[w]hen design
criteria are added in response to an issue, that issue should no longer
be analyzed in detail in the analysis process''. Some also expressed
concern with the definition for mitigation measures and propose it
should carry forward the CEQ guidance that ``[m]itigation measures may
be relied upon to make a finding of no significant impact only if they
are imposed by statute or regulation, or submitted by an applicant or
agency as part of the original proposal''--alleging the agency cannot
enforce application of mitigations (or implementation of design
criteria) without statutory authority.
The USDA NEPA regulations purposefully differentiate between design
criteria that are intrinsic to the proposed action (i.e. proactively
added to the proposed action prior to final effects analysis occurring)
and mitigation measures that address effects (i.e. are reactive to the
effects described in the final effects analysis). If the applicant or
agency has included criteria or constraints as part of the original
proposal, these are design criteria (per USDA's definition), not
mitigation measures, though both design criteria and mitigation
measures serve to minimize or eliminate undesired adverse effects.
Section 1b.6(b)(3), which outlines the elements required for a finding
of no significant impact, already includes the suggested language that
the agency identify the statutory or regulatory authority for
mitigations. Section 1b.8(b)(6), which outlines the elements required
for a record of decision, is revised in the final rule to reflect the
language already included in section 1b.6(b)(3). USDA's application of
the terms ``design criteria'' and ``mitigation measures'', as well as
clarification that when an issue is addressed through the addition of
design criteria that issue should no longer be analyzed in detail (7
CFR 1b.11(a)(11)), is in alignment with the CEQ's 2011 guidance on
mitigation and monitoring, which was cited by some commenters (CEQ
Memo: Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact, January
14, 2011).
The definition of ``emergency'' (7 CFR 1b.11(a)(13)) is added as
this term was used in some of the USDA agency-specific NEPA regulations
for emergency action provisions and the concept is carried forward into
the USDA NEPA regulations for ``emergency actions'' (7 CFR 1b.9(v)). In
the final rule, the definition of ``Emergency'' is revised to now read
as: ``Emergency means circumstances exist that make it necessary to
take action where delaying action to follow standard procedures for
completing NEPA analysis would be contrary to the public interest, as
determined by a responsible official.'' This is to align with changes
made to terminology and wording used in 7 CFR 1b.9(v), for the reasons
described for that section.
The definition of ``extraordinary circumstances'' (7 CFR
1b.11(a)(17)) is a concept carried forward from the now rescinded CEQ
NEPA regulations and is defined in the USDA NEPA regulations. Some USDA
agency-specific NEPA regulations included a definition of extraordinary
circumstances, while others did not. While these former definitions
served to inform the new definition, none of the previous definitions
were used in their entirety. The definition included in the USDA NEPA
regulations clarifies that an extraordinary circumstance is a unique
situation that exists in which actions that normally do not have
significant impacts--and are therefore categorically excluded from
documentation in an EA or EIS--create uncertainty whether the degree of
the effect is significant. The CEQ NEPA regulations and some USDA
agency-specific NEPA regulations defined or discussed extraordinary
circumstances in a way that created confusion as to when an
extraordinary circumstance existed. Some interpreted an extraordinary
circumstance to be present when a resource considered for extraordinary
circumstances, such as federally listed threatened or endangered
species or wetlands, was present. It is not the mere presence of a
resource that means an extraordinary circumstance exists, but rather
the cause-effect relationship between the proposed actions and the
resource considered. An extraordinary circumstance exists only when
there is reasonable uncertainty about whether the degree of the impact
is significant for the resource being considered.
In the final rule, the definition of ``Federal Agency'' (7 CFR
1.11(a)(18)) is revised to remove the erroneous phrase ``these USDA
implementing procedures'' and correctly replaced with ``this part''.
The last sentence of the definition now begins with, ``For the purposes
of this part . . .''.
The definition of ``finding of applicability and no extraordinary
circumstance'' (7 CFR 1b.11(a)(19)) is added, as the USDA NEPA
regulations clarify that the use of a CE is dependent on determinations
that a category (or categories) applies to the proposed actions and no
extraordinary circumstance exists. In the final rule, this definition
is revised to add a sentence at the end that reads, ``For those
categories that require NEPA documentation, this finding must be
documented.'' This aligns with 7 CFR 1b.3(g).
The definition of ``issue'' (7 CFR 1b.11(a)(23)) is added to
promote analytic analysis that is focused on cause-effect relationships
between the actions proposed (cause) and the reasonably foreseeable
impacts (effect) on resources found in the affected environment. The
purpose of considering issues is to identify opportunities to modify
the proposed action, develop an action alternative, or supplement,
improve, or modify the analysis to better understand the effects.
The definitions of ``level of NEPA'' and ``NEPA process'' (7 CFR
1b.11(a)(27) and (30)) are added as these terms are used in the
regulations in several instances to refer to the different levels of
NEPA or process to be completed, those being CE, EA, or EIS. This also
helps clarify that using a CE is a NEPA process, as some entities in
the past have erroneously alleged that an agency's use of a CE is
``circumventing NEPA''.
The definition of ``proposal record'' (or ``project record'') (7
CFR 1b.11(a)(38)) is added to standardize this term and concept for
USDA as it is a key piece of the NEPA and integrated environmental
review processes that can be overlooked. A well-organized and complete
proposal record also can facilitate paperwork reduction.
The definition of ``proposed action'' (7 CFR 1b.11(a)(39)) is added
to differentiate this from a proposal.
[[Page 17086]]
``Proposal'' is defined by NEPA as ``a proposed action at a stage when
an agency has a goal, is actively preparing to make a decision on one
or more alternative means of accomplishing that goal, and can
meaningfully evaluate its effects''. The definition of proposed action
takes this a step further to indicate this includes ``design criteria''
(where these apply) and that this is the version submitted for final
interdisciplinary review and effects analysis. Defining a proposed
action also can help responsible officials better determine when
timelines start for EAs and EISs to track and meet the deadlines now
established in NEPA.
The definition of ``purpose and need'' (7 CFR 1b.11(a)(41)) is
added as this is a term used in NEPA (the Act itself) but not defined.
The definition clarifies the purpose and need, explains the ``why here,
why now'' rationale for proposing an action, and that this also can
incorporate the goals of an applicant (when applicable) and the
subcomponent's statutory duty to review an application for
authorization.
In the final rule, the definition of ``Record of Decision'' (ROD)
(7 CFR 1b.11(a)(44)) is revised to add the word ``documented''. The
beginning of the definition now reads as ``Record of decision is a
documented determination by the responsible official . . .''. This is
to accurately reflect that the ROD is a document as it is not included
in the definition of ``environmental document'', as defined in NEPA
Sec. 111(5), 42 U.S.C. 4336e(5).
The definitions of ``scale'' and ``scope'' (7 CFR 1b.11(a)(47) and
(48)) are added as these terms are used in the USDA NEPA regulations
when referring to the scale and scope of actions proposed and issues
considered for analysis.
In the final rule, the definition of ``Senior agency official'' (7
CFR 1b.11(a)(49)) is revised to add the following sentence at the end
of the definition: ``At USDA, the Deputy Secretary is the senior agency
official.'' This change was necessary to account for deleting the
definition of ``USDA senior agency official''. It was found duplicative
to have definitions for both of these terms when clarification could be
added to the senior agency official definition to specify what position
at USDA fills this role.
In the final rule, the definition of ``Significance'' (7 CFR
1b.11(a)(50)) is revised to remove the phrase ``considering whether the
reasonably foreseeable impacts of the proposed action are significant
and analyzing the potentially affected environment and degree of the
effects of the action'' and replace it with ``the degree of effects of
the specific action on the potentially affected environment'', as
recommended during interagency review to avoid using the term
``significance'' in the definition and to provide greater precision
with respect to the definition of this term. The definition at (iii)(A)
is also revised to add the phrase ``and beneficial'' to the
consideration of short- and long-term impacts, with the sentence now
reading as: ``How the unavoidable short- and long-term adverse and
beneficial impacts of implementing the action . . .''. The definition
is also revised at (iii)(B) to change ``or'' to ``and'' and add the
word ``Federal'' in the phrase ``How the irreversible [and]
irretrievable commitment of a [Federal] resource''. These changes align
with changes made to 7 CFR 1b.2(f)(3), as previously described in this
preamble.
In the final rule the definition of ``Subcomponent'' (7 CFR
1b.11(a)(52)) is revised to remove ``the United States Department of
Agriculture'' but keeps the USDA acronym. This aligns with the use of
``USDA'' throughout the regulations.
The definition of ``substantive'' (7 CFR 1b.11(a)(53)) is added to
promote analytic analysis that focuses on information that meaningfully
informs the consideration of reasonably foreseeable impacts on the
human environment and the resulting significance determination or
decisions on how to proceed. Not all issues need the same level of
attention and analysis. Rather, it is substantive issues that should be
the focus when conducting effects analysis and making iterative and
final decisions on how to design, analyze, and implement an action. In
the final rule, the definition of ``Substantive'' is revised to add
``or compliance with applicable laws, executive orders, and
regulations'' to the end of the definition as this is something that
must also be considered by the responsible official when reviewing
substantive information, as pointed out by some commenters on the IFR.
In the final rule, the definition of ``USDA Senior Agency
Official'' is removed at 7 CFR 1b.11(a)(54) and replaced by the
definition of ``USDA website'' to clarify how the requirement for
publishing environmental documents or otherwise making information
available to the public on a USDA website can be met as this was not
clear to Department staff implementing the IFR. The definition
clarifies the information or document required to be made available to
the public can also be published on another entity's website so long as
a USDA website directs to that other entity's website.
7 CFR 1b.11(b) adds a list of acronyms that may appear throughout 7
CFR 1b or that may be used when applying 7 CFR 1b during the applicable
NEPA process. No changes have been made to this section relative to the
version released with the IFR in July 2025.
7 CFR 1b.12--Severability: This section is added to read as
indicated in 7 CFR 1b.12.
7 CFR 1b.12 adds a severability clause that clarifies that the
sections of the USDA NEPA Implementing Regulations are separate and
severable from one another and describes how other sections or portions
may remain valid if another section or portion is stayed or determined
to be invalid. No changes have been made to this section relative to
the version released with the IFR in July 2025.
3. Agricultural Research Service Procedures for Implementing NEPA
(Previously at 7 CFR 520)
The Agriculture Research Service (ARS) NEPA regulations are
rescinded in full except for the following sections that have been
consolidated in the 7 CFR 1b regulations: 7 CFR 520.5(b)(2)(i) and
(iii).
--7 CFR 520.5(b)(2)(i) and (iii) were moved to examples of activities
under one of the CEs previously codified at 7 CFR 1b.3 (department-wide
CEs previously under section 1b.3 are now moved to section 1b.4). (now
7 CFR 1b.4(c)(3)(iv) and (v))
4. Animal and Plant Health Inspection Service NEPA Implementing
Procedures (Previously at 7 CFR 372)
The Animal and Plant Health Inspection Service's (APHIS) NEPA
Implementing Procedures at 7 CFR part 372 are rescinded in full except
for the following sections that have been moved to 7 CFR part 1b: 7 CFR
372.5(c)(1) through (3) and 7 CFR 372.5(c)(5) (any previously reserved
sections are removed as new numbering is applied under 7 CFR 1b); and 7
CFR 372.10(b). Previously codified APHIS CEs are now found at 7 CFR
1b.4(c)(08) through (11).
Minor changes were made to former 7 CFR 372.5(c)(1) through (3) and
7 CFR 372.5(c)(5) as follows when they were moved over to 7 CFR 1b:
--372.5(c)(1)(i): some terms were removed from this paragraph and added
them to examples of activities under department-wide CEs previously
codified at 7 CFR 1b.3 (department-wide CEs previously
[[Page 17087]]
under Sec. 1b.3 are now moved to Sec. 1b.4). The example now reads
as: ``Identifications, inspections, surveys, sampling, testing, and
monitoring that does not cause physical alteration of the
environment.'' (now 7 CFR 1b.4(c)(3)(i))
--372.5(c)(1)(ii): revised ``Examples of routine measures include'' to
now read as ``Examples of routine measures include but are not limited
to''. (now 7 CFR 1b.4(c)(8)(ii))
--372.5(c)(2)(i)(B) and (D) were moved to examples of activities under
one of the CEs previously codified at 7 CFR 1b.3 (department-wide CEs
previously under Sec. 1b.3 are now moved to Sec. 1b.4). (now 7 CFR
1b.4(c)(3)(ii) and (iii))
--372.5(c)(2)(i) and 372.5(c)(5): revised ``Examples are'' to now read
as ``Examples include but are not limited to''. (now 7 CFR 1b.4(c)(9)
and (11))
--372.5(c)(3)(ii) and (iii): modified by removing erroneous ``or'' in
(ii) and removing erroneous ``and'' in (iii) and replacing it with
``or''. (now 7 CFR 1b.4(c)(10))
Former section 372.10(b) had more extensive changes when it was
moved to 7 CFR 1b.9(v)(2)(i). It is revised as follows:
--Eliminates language regarding EAs as this discussion is now covered
for all USDA agencies;; uses more generalized language about who can
approve alternative arrangements for emergency actions not anticipated
to have a reasonably foreseeable significant effect given the ongoing
organizational restructuring at USDA that could affect office names or
staff position titles; and, eliminates the requirement to document and
report to CEQ the alternative arrangements approved at the agency
level. (USDA agencies will continue to coordinate with CEQ on
alternative arrangements for those activities anticipated to have
reasonably foreseeable significant effects.)
5. Farm Service Agency General Implementing Regulations for NEPA
(Previously at 7 CFR 799)
The Farm Service Agency (FSA) NEPA regulations are rescinded in
full except for the following sections that have been moved to the 7
CFR 1b regulations: 7 CFR 799.12(b), 7 CFR 799.31(b)(1)(2) and (4)
through (6), 7 CFR 799.32(d)(1)(2) and (3), 7 CFR 799.32(e)(1)(2) and
(3). Previously codified FSA CEs are now found at 7 CFR 1b.4(c)(12)
through (16) and (30) and (d)(1) and (2).
7 CFR 799.12(b) was moved to 7 CFR 1b.9(v) but is incorporated into
the overall Department guidance for Emergencies, with one paragraph
1b.9(v)(2)(ii) clarifying how the FSA should coordinate alternative
arrangements for urgent actions not anticipated to have reasonably
foreseeable significant effects.
CEs moved to 7 CFR 1b.4(c) (CEs not requiring documentation under
NEPA) because they are historically low impact actions:
--7 CFR part 799.31(b)(1) Loan Actions (combined with other ``Loan
Actions'' categories under one category at 7 CFR 1b.4(c)(30))
--7 CFR part 799.31(b)(2) Repair, improvement, or minor modification
actions (now 7 CFR 1b.4(c)(13))
--7 CFR part 799.31(b)(3) Administrative actions are deleted as a
category and added as examples under one of the CEs previously codified
at 7 CFR 1b.3. (now 7 CFR 1b.4(c)(1)(i) through (iii))
--7 CFR part 799.31(b)(4) Planting actions. (now 7 CFR 1b.4(c)(14))
--7 CFR part 799.31(b)(5) Management actions. (now 7 CFR 1b.4(c)(15))
--7 CFR part 799.31(b)(6) Other FSA actions (now labeled
``Miscellaneous FSA Actions''). 799.31(b)(6)(vi) is revised to read as:
Safety net programs without ground disturbance. ``Without ground
disturbance'' is added as a clarifier, as the sentence providing this
clarification is not moved to 7 CFR 1b. 7CFR 799.31(b)(6)(x) is removed
because the adoption provision is no longer needed here. (now 7 CFR
1b.4(c)(16))
--7 CFR 799.32(d)(1) Loan Actions (combined with other ``Loan Actions''
categories under one category at 7 CFR 1b.4(c)(30))
--7 CFR 799.32(d)(2) Minor management, construction, or repair actions
(now 7 CFR 1b.4(c)(12))
--7 CFR 799.32(d)(3) Other FSA actions (combined in list with
categories labeled ``Miscellaneous FSA Actions'') (now 7 CFR
1b.4(c)(16))
--7 CFR 799.32(d)(3)(iv): Removed as it is duplicative to another
category already included in the now combined ``Miscellaneous FSA
Actions'' list and the phrase ``(this proposed action, in particular,
has the potential to cause effects to historic properties and therefore
requires analysis under section 106 of NHPA (54 U.S.C. 306108), as well
as under the ESA and wetland protection requirements)'' is not
necessary as the determination for when compliance with NHPA (National
Historic Preservation Act) and ESA (Endangered Species Act) is needed
is appropriately done on a case-by-case or programmatic basis and is
not appropriate to include in NEPA regulations
--7 CFR 799.32(e)(1) Loan Actions (combined with other ``Loan Actions''
categories under one category at 7 CFR 1b.4(c)(30))
CEs moved to 7 CFR 1b (CEs requiring documentation under NEPA):
--7 CFR 799.32(e)(2) Construction or ground disturbance actions (now 7
CFR 1b.4(d)(1))
--7 CFR 799.32(e)(3) Management and planting type actions (now 7 CFR
1b.4(d)(2))
FSA is applying the definition of major Federal action, as
established in the FRA (Pub. L. 118-5), which also amended NEPA. The
agency has determined that several types of loan actions fall within
one or more of the exclusions in the definition of major Federal
actions and will be treating them as such; however, it's possible not
all types of loans fall within the exclusions. For this reason, FSA is
retaining the existing categories titled ``Loan Actions''. FSA will
continue to make case-by-case or programmatic determinations as to
whether certain loans and potentially other programs or actions meet
the statutory definition of major Federal action. Justifications for
these and any other programmatic determinations will be made in agency-
issued guidance.
6. National Institute of Food and Agriculture Implementation of NEPA
Regulations (Previously at 7 CFR 3407)
The National Institute of Food and Agriculture (NIFA) regulations
are rescinded in full except for the following sections that have been
moved to the 7 CFR 1b regulations: 7 CFR 3407.6(a)(2)(i)(A) and (C).
--7 CFR 3407.6(a)(2)(i)(A) and (C) were moved to examples of activities
under one of the CEs previously codified at 7 CFR 1b.3 (department-wide
CEs previously under Sec. 1b.3 are now moved to Sec. 1b.4). (now 7
CFR 1b.4(c)(3)(iv) and (v))
7. Natural Resources Conservation Service Compliance With NEPA
Regulations (Previously at 7 CFR 650)
The Natural Resources Conservation Service (NRCS) regulations are
rescinded in full except for the following sections that have been
consolidated in the 7 CFR 1b regulations: 7 CFR 650.6(a) and (d)(1)
through (21). Previously codified NRCS CEs are now found at 7 CFR
1b.4(d)(3) through (23).
[[Page 17088]]
Minor changes were made to the CE sections as follows when they
were moved over to 7 CFR 1b:
--7 CFR 650.6(a): This section was moved to examples of activities
under one of the CEs previously codified at 7 CFR 1b.3. (now 7 CFR
1b.4(c)(3)(vi) through (x))
--7 CFR 650.6(d)(14): Revised as follows. In the phrase ``Work will be
confined to the existing footprint of the dam. . .'', ``existing'' is
replaced with ``construction'' to now read as ``Work will be confined
to the construction footprint of the dam''. (now 7 CFR 1b.4(d)(16))
--7 CFR 650.6(d)(15): Revised as follows. In the phrase ``Work will be
confined to the dam or abutment areas. . .'', the language
``construction footprint of the'' was inserted, to now read as ``Work
will be confined to the construction footprint of the dam or abutment
areas. . .'' (now 7 CFR 1b.4(d)(17))
--7 CFR 650.6(d)(16): Revised as follows. In the phrase ``Repairing
embankment slope failures on structures. . .'', the language ``or
reshaping the embankment'' was inserted to now read as ``Repairing
embankment slope failures on structures or reshaping the embankment. .
. .'' (now 7 CFR 1b.4(d)(18))
--7 CFR 650.6(d)(17): Revised as follows. In the phrase ``Work will be
confined to the existing dam and abutment areas. . .'', ``existing'' is
replaced with ``construction footprint of'' to now read as ``Work will
be confined to the construction footprint of the dam and abutment
areas. . . .'' (now 7 CFR 1b.4(d)(19))
These CEs focus on routine actions for the repair or updating of
existing structures constructed under the Watershed Protection and
Flood Prevention Act, Public Law 83-566, or the Flood Control Act,
Public Law 78-534. The purpose of rehabilitation projects is to comply
with current State safety standards and Federal performance standards,
as well as the protection of environmental values associated with the
project's structures.
Upon review of the substantiation records associated with the
development of these CEs and the NRCS staff's professional knowledge
and experience, NRCS determined it needed additional clarity to better
define the appropriate scope of these CEs. The term ``existing,'' in
reference to the dam structure, leads to an overly restrictive
interpretation that does not meet standard maintenance procedures
associated with rehabilitation actions, thus unintentionally
restricting the scope and application of the CEs. NRCS completed an
analysis of 47 recent site-specific dam rehabilitation EAs, all
resulting in a finding of no significant impact. 38 of 47 EAs included
one or more actions (NRCS practices) that could qualify for a proposed
revised CE. NRCS concluded that 21 of these 38 projects could have been
categorically excluded because the proposed action was limited to the
dam construction footprint, which was previously disturbed during
construction. 17 of those 38 EAs included some actions that could fit
the revised CE. Thus, NRCS used the EA analysis to support the
conclusion that as individual actions, these actions would not normally
lead to significant impacts. The remaining 9 project-specific EAs did
not meet the CE criteria because the rehabilitation construction
footprint exceeded the original dam construction footprint or involved
other actions outside the scope of the CE. These CEs are limited to
developed areas, so
[…truncated; see source link]Indexed from Federal Register on April 3, 2026.
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.