Rule2026-11973
Implementing Regulation for National Environmental Policy Act (NEPA): Environmental Effects of the Department of Veterans Affairs Actions
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
June 15, 2026
Effective
June 15, 2026
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is issuing this interim final rule to amend its agency procedures for implementing the requirements of the National Environmental Policy Act (NEPA). Since VA last updated its NEPA regulations in 1989, Congress amended NEPA through the Fiscal Responsibility Act of 2023 and the One Big Beautiful Bill Act of 2025, the Council on Environmental Quality rescinded its NEPA regulations, and substantial changes have occurred in VA's delivery of care and benefits to veterans. The revisions to VA's NEPA regulations improve the efficiency and quality of VA's NEPA process and align the NEPA process with decision-making across VA by more clearly focusing on the planning stages of VA actions, improving consistency in NEPA implementation throughout VA, updating the VA categorical exclusion list to reflect current VA activities, and complying with NEPA, as revised.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 114 (Monday, June 15, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 114 (Monday, June 15, 2026)]
[Rules and Regulations]
[Pages 36044-36069]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11973]
[[Page 36043]]
Vol. 91
Monday,
No. 114
June 15, 2026
Part II
Department of Veterans Affairs
-----------------------------------------------------------------------
38 CFR Part 26
Implementing Regulation for National Environmental Policy Act (NEPA):
Environmental Effects of the Department of Veterans Affairs Actions;
Interim Final Rule
Federal Register / Vol. 91, No. 114 / Monday, June 15, 2026 / Rules
and Regulations
[[Page 36044]]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 26
RIN 2900-AS33
Implementing Regulation for National Environmental Policy Act
(NEPA): Environmental Effects of the Department of Veterans Affairs
Actions
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is issuing this
interim final rule to amend its agency procedures for implementing the
requirements of the National Environmental Policy Act (NEPA). Since VA
last updated its NEPA regulations in 1989, Congress amended NEPA
through the Fiscal Responsibility Act of 2023 and the One Big Beautiful
Bill Act of 2025, the Council on Environmental Quality rescinded its
NEPA regulations, and substantial changes have occurred in VA's
delivery of care and benefits to veterans. The revisions to VA's NEPA
regulations improve the efficiency and quality of VA's NEPA process and
align the NEPA process with decision-making across VA by more clearly
focusing on the planning stages of VA actions, improving consistency in
NEPA implementation throughout VA, updating the VA categorical
exclusion list to reflect current VA activities, and complying with
NEPA, as revised.
DATES: This interim final rule is effective June 15, 2026. Comments
must be received by July 15, 2026.
ADDRESSES: You may submit comments through <a href="http://www.regulations.gov">www.regulations.gov</a> under
RIN 2900-AS33. That website includes a plain-language summary of this
rulemaking. Instructions for accessing agency documents, submitting
comments, and viewing the rulemaking docket, are available on
<a href="http://www.regulations.gov">www.regulations.gov</a> under ``FAQ.''
FOR FURTHER INFORMATION CONTACT: Glenn Elliott, Office of Construction
& Facilities Management (003C2), (202) 360-1243.
SUPPLEMENTARY INFORMATION:
I. Background
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).
NEPA furthers this national policy by requiring Federal agencies to
prepare an environmental impact statement (EIS)--``in essence, a
report''--for proposed ``major Federal actions significantly affecting
the quality of the human environment'' (42 U.S.C. 4332(2)(C); Seven
County Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct.
at 1497, 1507 (2025)). This statement must address: (1) the reasonably
foreseeable environmental effects of the proposed agency action; (2)
any reasonably foreseeable adverse environmental effects that cannot be
avoided should the proposal be implemented; (3) a reasonable range of
alternatives to the proposed agency action, including an analysis of
any negative environmental impacts of not implementing the proposed
agency action in the case of a no action alternative, that are
technically and economically feasible, and meet the purpose and need of
the proposal; (4) the relationship between local short-term uses of
man's environment and the maintenance and enhancement of long-term
productivity; and (5) any irreversible and irretrievable commitments of
Federal resources which would be involved in the proposed action should
it be implemented. 42 U.S.C. 4332(2)(C).
NEPA does not mandate particular results or substantive outcomes.
Seven County, 145 S. Ct. at 1510-12. Rather, NEPA requires Federal
agencies to consider the environmental effects of proposed actions as
part of agencies' decision-making processes. NEPA provides requirements
to facilitate timely and unified Federal reviews, including provisions
clarifying lead, joint lead, and cooperating agency designations,
generally requiring the development of a single environmental document,
directing agencies to develop procedures for project sponsors to
prepare environmental assessments (EAs) and EISs, and prescribing page
limits and deadlines. 42 U.S.C. 4336a. NEPA also sets forth the
circumstances under which agencies may rely on programmatic
environmental documents (42 U.S.C. 4336b) and adopt and use another
agency's categorical exclusions (CATEXs) (42 U.S.C. 4336c).
NEPA identifies three levels of review--CATEX, EA, and EIS. 42
U.S.C. 4336a. A CATEX is ``a category of actions that a Federal agency
has determined normally does not significantly affect the quality of
the human environment within the meaning of [NEPA] section 102(2)(C)''.
42 U.S.C. 4336e(1). An EA is a ``concise'' document ``set[ting] forth
the basis of [an] agency's finding of no significant impact or
determination that an environmental impact statement is necessary,''
prepared in connection with a proposed agency action that does not have
a significant impact or the significance of whose impact is unknown. 42
U.S.C. 4336(b)(2). An EIS is a document analyzing a proposed agency
action with significant impact, governed by the provisions of 42 U.S.C.
4332(2)(C) and 4336(b)(1).
VA developed its NEPA implementing procedures in 1986 and amended
them in 1989 ``in accordance with'' the Council on Environmental
Quality's (CEQ's) NEPA implementing regulations (title 38 Code of
Federal Regulations (CFR) 26.1). Since that time, VA policies and
activities have changed and expanded. Moreover, CEQ has rescinded its
NEPA implementing regulations, effective April 11, 2025 (Removal of
National Environmental Policy Act Implementing Regulations, 90 FR
10610, Feb. 25, 2025). This action was necessitated by, and is
consistent with, Executive Order 14154, Unleashing American Energy (90
FR 8353, Jan. 20, 2025), in which President Trump rescinded President
Carter's Executive Order 11991, Relating to Protection and Enhancement
of Environmental Quality (42 FR 26967, May 24, 1977), which was the
basis CEQ had invoked for its authority to make rules to begin with.
VA's regulations thus stand in obvious need of fundamental revision.
President Trump, in Executive Order 14154, further directed agencies to
revise their NEPA implementing procedures, consistent with the
executive order, including its direction to CEQ to rescind its
regulations.
In addition, Congress amended NEPA in substantial part in 2023
through the Fiscal Responsibility Act of 2023 (Public Law (Pub. L.)
118-5 (June 3, 2023)). Congress added substantial detail and direction
in Title I of NEPA, including in particular on procedural issues that
CEQ addressed in its regulations and that individual action agencies
had previously addressed in their own NEPA implementing procedures. VA
recognized the need to update its regulations in light of these
substantial legislative changes. Since VA's regulations were originally
written in accordance with CEQ's NEPA implementing regulations, VA had
been awaiting CEQ action before revising its regulations, consistent
with CEQ direction. See 40 CFR 1507.3(b) (2024); see also 86 FR 34154
(June 29, 2021). However, with CEQ's regulations now rescinded, and
with VA's NEPA implementing procedures still
[[Page 36045]]
unmodified more than two years after this substantial legislative
overhaul, it is exigent that VA quickly conform its procedures to the
statute as amended.
Moreover, the Supreme Court on May 29, 2025, issued the landmark
Seven County Infrastructure Coalition decision, in which it decried the
``transform[ation]'' of NEPA from its roots as ``a modest procedural
requirement,'' into a ``substantive roadblock'' that ``paralyze[s]''
``agency decisionmaking''.145 S.Ct. 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 their NEPA processes. 145
S.Ct. 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 for
future projects''. 145 S.Ct. at 1513. VA is therefore issuing this
interim final rule to align its actions with the Supreme Court's
decision and streamline its process of ensuring reasonable NEPA
decisions.
Finally, Congress again amended NEPA in 2025 through section 60026
of the One Big Beautiful Bill Act (Pub. L. 119-21 (July 4, 2025)),
adding section 112 of NEPA, entitled ``Project Sponsor Opt-in Fees for
Environmental Reviews.'' This provision allows project sponsors to pay
a fee to obtain shortened NEPA review deadlines.
Thus, VA is revising its NEPA regulations to reflect the current
policies and activities within VA, the rescission of the CEQ NEPA
implementing regulations, recent case law, and to comply with NEPA, as
revised. Further, this revision standardizes the approach to improve
both the quality and timeliness of VA's NEPA process. This revision has
been called for, authorized, and directed by all three branches of
government at the highest possible levels.
II. Discussion of the Interim Final Rule
A. Subpart A: General Information
The legal authorities for 38 CFR part 26 are revised to remove
reference to revoked Executive Order 11991 and Executive Order 11514,
add reference to Executive Order 14154, and retain citation of NEPA (42
U.S.C. 4321 et seq.).
Section 26.0 addresses the purpose of subpart A by explaining that
subpart A provides the procedures by which the VA considers the
environmental effects of its actions in carrying out the VA mission. It
also explains that subpart A sets forth the scope and terminology of
part 26, and the responsibilities for implementing the requirements of
the NEPA and part 26.
Existing 38 CFR 26.2 ``Applicability and scope'' is revised by
Sec. 26.11 to clearly state that VA's NEPA regulations encompass all
VA offices, administrations, and activities. Existing Sec. 26.1
``Issuance and purpose'' is revised by Sec. 26.10 to include VA's
objectives in the updated approach to implementing NEPA, by emphasizing
early incorporation of NEPA into agency planning, the quality of
environmental analysis, and timely decision-making.
Section 26.11, the revised ``Applicability and Scope'' Sec. ,
describes the types of actions within VA control and subject to NEPA.
Currently, the regulations contain a blanket statement (existing Sec.
26.2) applying the NEPA procedures to VA and its offices. The
applicability of NEPA, and the reach of VA's NEPA regulations, will not
change, but the new language clarifies the scope and applicability for
improved awareness and understanding. These regulations apply only to
major Federal actions as defined in section 111(10) of NEPA (42 U.S.C.
4336e(10)), including but not limited to construction and maintenance
projects, real property acquisition and disposal, leases and sharing
agreements, grants and other funding actions, other facility and asset
management decisions, and any other action that meets the statutory
definition of a major Federal action and has the potential for a
significant environmental impact. Section 26.11 of 38 CFR also
identifies activities and decisions that are not major Federal actions
and thus not subject to NEPA, for example, entitlements. Entitlements
are benefits provided to veterans in which VA's role is purely
administrative in nature such as pension benefits. The existing
regulations do not distinguish between VA actions that are major
Federal actions and those that are not.
Section 26.3, the existing ``Definitions'' Sec. , defines only the
terms ``United States'' and ``VA elements'' and provides a generic
reference to the definitions in the now-revoked CEQ regulations.
Section 26.12 of the interim final regulations references the statutory
definitions set forth in section 111 of NEPA (42 U.S.C. 4336e) and
provides the full text of definitions only for terms relevant to
implementing the VA NEPA procedures that are not defined in the
statute.
Existing 38 CFR 26.5 ``Responsibilities'' assigns roles to only
three types of VA staff. By contrast, new Sec. 26.13
``Responsibilities'' describes and includes a list of responsibilities
for ``applicants,'' ``Senior Agency Official,'' and other types of
agency staff who participate in the NEPA process.
The interim final rule provides a new Sec. 26.14 for specific
``Environmental Practices.'' Section 26.14 includes practices for
efficiency, capability, similar actions, combining NEPA with other
environmental and historic preservation requirements, programmatic NEPA
documents, and connected actions. Section 26.14 emphasizes the
efficient use of VA resources during the NEPA process by encouraging
the use of allowable efficiency approaches. The existing regulations do
not include information about these practices. VA is including Sec.
26.14 in the interim final rule to encourage strategic planning and
avoid redundant environmental analyses.
As part of this revision, some existing Sec. Sec. and text in the
current regulations have been relocated. The following summary provides
a guide to where the text originally found in 38 CFR 26.1 through 26.5
has been moved, along with a summary of any revisions to the existing
text:
Existing Sec. 26.1 ``Issuance and purpose.''
VA revises and moves existing Sec. 26.1 to Sec. 26.10 ``Purpose
of this part'' to provide legal authorities for the revised
regulations.
Existing Sec. 26.2 ``Applicability and scope.''
The revised and relocated text, in Sec. 26.11 ``Applicability and
scope,'' clarifies the applicability of the interim final rule and
describes the types of actions to which the interim final rule does and
does not apply.
Existing Sec. 26.3 ``Definitions.''
In Sec. 26.12 ``Definitions,'' moved from existing Sec. 26.3, VA
expands the list of definitions to include the full text of terms
commonly used within VA during the NEPA process.
Existing Sec. 26.4 ``Policy.''
In Sec. 26.14 ``Environmental practices,'' new practices emphasize
strategic environmental planning. Section 26.14 promotes early
integration of NEPA into the decision-making process, combining other
environmental and historic preservation requirements into the NEPA
process for efficiency, and analyzing similar actions together in
programmatic analyses for efficient decision-making.
Existing Sec. 26.5 ``Responsibilities.''
[[Page 36046]]
In Sec. 26.13, moved from existing Sec. 26.5, the interim final
rule expands the current list of responsible parties to clarify the
roles of VA staff participating in the NEPA process. VA is also
including two new NEPA oversight roles to reflect current practice
within VA: the NEPA Implementation Officer and the Senior Agency
Official. The interim final rule also authorizes chains of delegation
and promotes coordination.
B. Subpart B: NEPA Process for VA Actions
As explained in Sec. 26.20, subpart B outlines the requirements
and process for NEPA compliance to inform VA decision-making. Section
26.21 provides context by explaining how VA will integrate NEPA with VA
planning. Remaining Sec. Sec. 26.22 through 26.73 lay out NEPA
analysis options and NEPA implementation methods specific to those
options.
Section 26.7(b) of the existing regulations indicates the time at
which VA must complete relevant environmental analyses for leases,
grants, policies, legislative proposals, miscellaneous and non-
recurring delegated projects, land acquisitions, and emergency
circumstances. However, these activities no longer reflect the full
scope of VA activities and the list of activities did not provide for
decisions related to ongoing or new operations. Section 26.21 of the
interim final rule replaces the existing list of activities with
procedures for activities now common to VA, including acquisition
activities and construction projects. VA is combining and expanding
upon existing Sec. Sec. 26.6, 26.7, and 26.9 in the revised subpart B
Sec. Sec. . Acquisitions and construction projects represent the
majority of project types that require NEPA analyses within VA. VA is
including these projects in Sec. 26.21 ``Integrating NEPA with VA
planning'' to standardize NEPA analyses across VA and clarify the
proper timing of the NEPA process together with VA decision-making for
these activities. VA also adds an emphasis in Sec. 26.21(a)(1) on
beginning the NEPA process at the earliest reasonable time.
Additionally, VA added a requirement in Sec. 26.21(a)(2) for relevant
NEPA documents, comments, and responses to accompany the proposal
through existing agency review processes.
The interim final rule includes a new Sec. 26.22 ``Determining the
appropriate level of NEPA review,'' which explains VA's process for
choosing the appropriate level of NEPA review: CATEX, EA, or EIS. The
existing regulations do not explain the process for selecting the
appropriate level of review, which has made it difficult for VA
decision-makers to know which type of analysis is appropriate for a
given project. VA is adding this overview to help VA officials and to
standardize the process for determining the appropriate level of NEPA
review across VA.
The interim final rule contains specific requirements for CATEXs in
Sec. Sec. 26.30-26.32. Section 26.6 of the existing regulations
includes a list of actions that typically require CATEXs, EAs, and
EISs. Sections 26.30 and 26.32 revise the list of VA CATEXs and update
procedures for their application for consistent documentation and use
throughout the agency.
Within Sec. 26.7(b) of the existing VA NEPA regulations, there is
a list of ``major decision points'' when VA must complete a relevant
environmental analysis for a proposed action. However, the existing VA
regulations do not clearly state what to consider and prepare at each
major decision point and the list is not comprehensive for VA
activities. To clarify when VA must complete environmental analysis, VA
is specifying the requirements in Sec. Sec. 26.40 and 26.41
``Requirements for EAs'' and ``Requirements for EISs,'' respectively.
Requirements for time limits and page limits are included for each
analysis type. Additionally, Sec. 26.73 of the interim final rule
includes direction on reevaluating and supplementing EAs and EISs.
Through Sec. 26.42 of the interim final rule, VA is also providing
procedures for public engagement. The existing regulations do not
include information about how VA will reach out to the public. VA
recognizes open discussion at the outset of the NEPA process can
alleviate public concerns, where relevant. VA is including Sec. 26.42
``Public engagement procedures'' to standardize procedures for
providing notice of intent and scoping. Section 26.42(a) also clarifies
that the NEPA process for a CATEX does not exclude public engagement.
This interim final rule includes Sec. 26.50 ``Mitigation and
monitoring.'' Section 26.50 explains the purpose of mitigation measures
and provides examples of mitigation approaches to help VA decision
makers formulate and apply mitigation measures. VA is requiring
mitigation and monitoring costs to be included in project budgets when
the agency has such discretion. VA will identify monitoring and
mitigation requirements in the NEPA decision document. The interim
final rule also provides that VA may provide for required mitigation or
monitoring where VA has such discretion. While NEPA requires
consideration of mitigation, it does not mandate the form or adoption
of any mitigation.
In Sec. 26.60 ``The decision: documentation and initiation of
action'' this interim final rule codifies conditions for when VA can
take action evaluated in a NEPA document. Section 26.60 includes a
discussion of the required elements of a decision document, such as a
finding of no significant impact or record of decision. The existing
regulations do not explain when VA may proceed with a proposed action.
The revised regulations ensure VA does not violate NEPA by
inadvertently committing resources to a proposed action prior to the
conclusion of the NEPA process (42 U.S.C. 4332(C)(v)).
VA is adding Sec. 26.70 ``Programmatic NEPA documents,'' Sec.
26.71 ``Reliance on existing NEPA documents,'' Sec. 26.72 ``Combining
documents,'' and Sec. 26.73 ``Supplemental analyses'' to encourage
their use throughout VA. These efficiency approaches are not encouraged
within the existing regulations. As a result, these approaches are used
infrequently in VA and are generally not well understood. For example,
programmatic analyses allow VA to use NEPA for broad actions such as
the development of master plans at VA facilities. Analyzing broad
actions programmatically helps to capture all potential effects while
simplifying and focusing tiered analyses for individual projects and
improving the efficiency of the NEPA process for these projects. VA may
rely on another Federal agency's NEPA document if an action analyzed in
NEPA document prepared by another Federal agency and VA's action are
substantially the same. Direction on how VA may rely on and use an EIS,
EA, or CATEX determination have been incorporated into these
regulations. VA uses supplemental analyses when VA proposes changes to
a previously analyzed action or when there is substantial new
information or circumstances relevant to environmental concerns.
Supplemental analyses allow VA to add to an existing NEPA analysis
instead of redoing the entire NEPA analysis. Thus, VA is adding Sec.
26.73 ``Supplemental analyses'' to additionally clarify how the
administrative record should document a supplemental analysis. Sections
26.70 through 26.73 will help VA save resources by reducing redundant
analyses.
As part of the revision, some text in the current regulations has
been relocated to different Sec. Sec. . The following summary provides
a guide to these
[[Page 36047]]
changes to existing Sec. Sec. 26.6, 26.7, and 26.9:
VA is expanding existing Sec. 26.6 ``Environmental documents.''
into five new Sec. Sec. : Sec. 26.22 ``Determining the appropriate
level of NEPA review,'' Sec. 26.30 ``Categorical exclusions,'' Sec.
26.32 ``List of VA categorical exclusions,'' Sec. 26.40 ``Requirements
for EAs,'' and Sec. 26.40 ``Requirements for EISs.'' The interim final
rule also adds Sec. 26.31 ``Adoption and application of CATEXs from
another agency's NEPA procedures.''
VA moved existing Sec. 26.7 ``VA environmental decision making and
documents.'' to new Sec. 26.21 ``Integrating NEPA with VA planning''
and Sec. 26.22 ``Determining the appropriate level of NEPA review.''
In the interim final rule, VA reframes the discussion of environmental
decision-making in the context of seeking and applying efficiencies,
and focusing on reasonably foreseeable environmental effects specific
to that action.
Existing Sec. 26.9 addresses ``Information on and public
engagement in VA environmental process.'' The interim final rule
codifies public engagement procedures within VA by adding Sec. 26.42
``Public engagement procedures'' to provide consistency with and for
flexibilities in accordance with current statutory requirements.
C. Subpart C: The Role of Third Parties in the NEPA Process
As explained in Sec. 26.80, subpart C outlines the relationship
between VA and Federal, Tribal, State, and local environmental
agencies; identifies the role of VA in actions initiated by other
Federal agencies and the role other Federal agencies may play in VA
actions; and describes the role of applicants in VA's NEPA process.
Section 26.8 of the existing regulations identifies several types
of projects with third-party involvement that may require NEPA review
and generally states in existing Sec. 26.9 that VA will include other
parties in the preparation of environmental documents to the extent
practicable, but does not explain how or what type of involvement
should occur. Sections 26.81 through 26.84 discuss third parties in
greater detail, including relationships with third parties; State,
Tribal, and local requirements; and the role of applicants.
Subpart C includes a new Sec. 26.81 ``Relationships with third
parties.'' New Sec. 26.81 discusses how VA will participate as a lead,
joint-lead, or cooperating agency when Tribes and Federal, State, and
local agencies are involved in a proposed action. Section 26.5 of the
existing regulations assigns responsibility for picking the lead VA
element, but there are no procedures for determining the level of
participation of VA, Tribes, and other agencies in a shared action.
Section 26.81(c) of the interim final rule changes the responsibility
for determining VA's lead agency designation to the Senior Agency
Official. The existing regulations also do not discuss joint lead
agencies or cooperating agencies. New Sec. 26.81 will help VA to
improve coordination with Tribes and other agencies.
Section 26.82 ``State, Tribal, and local requirements'' addresses
two issues. First, VA is including new Sec. 26.82 to harmonize VA
actions with State, Tribal, and local compliance activities to the
extent practicable. State, Tribal, and local agencies may have
programs, plans, and procedures that impact VA actions; or conversely,
VA actions may impact the programs, plans, and procedures of State,
Tribal, and local agencies. Secondly, new Sec. 26.82 avoids
duplication of NEPA analyses when similar environmental analyses and
documents as those needed for a VA action exist or are necessary for
State, Tribal, and local environmental and historic preservation
requirements. VA does not have procedures for coordinating
environmental analyses with other agencies in its existing regulations.
Section 26.82 will help VA officials coordinate with their State,
Tribal, and local counterparts and improve efficiency.
Tribes are identified separately in Sec. 26.82 and throughout 38
CFR part 26 because of their sovereign status, the government-to-
government relationship between Tribes and the Federal government, and
the Federal-Tribal trust relationship. The Federal government must
respect Tribal sovereignty when its activities may impact Tribal
resources and engage with Tribes in a government-to-government
relationship. The Federal government also has a trust responsibility to
Tribes that includes the protection of Tribal sovereignty, and a legal
obligation arises when the Federal government has control or deprives a
Tribe of the ability to manage a Tribal resource. This legal obligation
will require the Federal government to act in good faith toward a
Tribe, Tribal property, and Tribal rights. VA recognizes the special
status of Tribes and will interact with Tribes appropriately for VA
activities that may impact Tribal resources.
VA is adding Sec. 26.83 ``Applicants for Federal assistance'' in
the interim final rule because an applicant's participation in the NEPA
process is critical to the completion of an EA or EIS for certain
Federal assistance actions, and the existing regulations do not discuss
the role of applicants in the NEPA process. To complete the NEPA
process, VA needs the applicant's information concerning environmental
resources at the site(s) of the proposed action. Applicants may prepare
the EA or EIS and perform subsequent mitigation and monitoring. The
revised regulations will provide information to applicants about their
role in the NEPA process for grants and discretionary benefits, and
actions the applicants may take to develop preliminary plans in
accordance with NEPA.
VA is adding Sec. 26.84 ``Non-compliance by applicants'' to codify
that VA will promptly notify applicants of any non-compliance with the
NEPA process. VA must ensure applicants comply with NEPA because the
ultimate responsibility for compliance falls upon VA.
D. Subpart D: Unique Procedures: Emergencies, Protected Information,
and International Actions
As explained in Sec. 26.90, subpart D provides the VA procedures
for complying with NEPA during emergencies, how VA will handle
sensitive or classified information, and how VA will consider the
international effects of VA actions. New subpart D includes NEPA
procedures for emergency actions in Sec. 26.91, actions with sensitive
or classified information in Sec. 26.92, and international actions or
effects in Sec. 26.93. The interim final rule groups Sec. Sec. 26.91
through 26.93 together because actions taken in these circumstances do
not follow the typical NEPA process. The existing regulations do not
provide NEPA procedures for these actions. VA is adding subpart D to
codify its procedures for developing alternative arrangements in
emergencies, protecting sensitive or classified information, and
considering international actions or effects to the extent practicable.
Section 26.7 of the existing regulations refers to the now-revoked
CEQ regulations for developing alternative arrangements in an
emergency, but it does not provide specific guidance on how to
determine when alternative arrangements are necessary. New Sec. 26.91
``Emergencies'' adds procedures to determine when to develop
alternative arrangements. VA is adding Sec. 26.91 to make it easier
for VA officials to include NEPA in their response to emergencies.
New Sec. 26.92 ``Sensitive or classified information'' provides VA
with policy and documentation requirements for protecting and
documenting sensitive
[[Page 36048]]
and classified information submitted during the NEPA process. VA does
not address sensitive or classified information in the existing VA
procedures. New Sec. 26.92 codifies its practice of protecting
individual veterans' information from dissemination to the public or
non-VA entities, consistent with the Freedom of Information Act (5
U.S.C. 552). VA will also protect sensitive and classified information
in the interest of national security.
The new regulations include 38 CFR 26.93 ``International actions or
effects'' to clarify what VA should consider with respect to
environmental effects overseas. The existing regulations do not discuss
international actions, which are actions taken outside of the United
States. Extraterritorial actions with effects located entirely outside
of the jurisdiction of the United States are excluded from the
statutory definition of ``major Federal action'' and thus not subject
to NEPA. 42 U.S.C. 4336e(10)(B). For such extraterritorial actions, the
governing authority as cited in the regulations is Executive Order
12114, Environmental Effects Abroad of Major Federal Actions. Executive
Order 12114 does not rely upon NEPA for its authority but does further
the purpose of NEPA and provides guidance for VA on how to consider
effects for its overseas operations.
III. Revisions to Categorical Exclusions
A. Explanation of Changes to CATEX List
Section 26.6(b) of current 38 CFR identifies 13 actions that are
categorically excluded from further detailed review under NEPA. This
list of categorically excluded actions has not been updated since 1989.
Since that time, VA has added new programs and missions and gained
additional experience implementing actions that do not generate
significant effects.
VA is replacing the existing list of 13 CATEXs with 28 categories
of actions that may be excluded from further NEPA review, as follows:
VA-Wide Operations
1. Field exercises and training.
2. Field studies and surveys.
3. Special events, ceremonies, and related activities.
4. Waste management.
5. Transportation.
Housing Operations
6. Provision of housing.
Acquisition or Disposition of Land, Buildings, or Space
7. Acquisition of space within an existing structure.
8. Acquisition of land and/or buildings.
9. Out-leases to third party tenants.
10. Agreements for use of VA-owned space.
11. Disposal of real property.
Services and Procurement
12. Medical-related services.
13. Research.
14. Laundry and food services.
15. Procurement, lease, transport, storage, and disposition of
supplies, materials, and equipment.
Cemetery Operations
16. Interment ceremony services.
17. Soil excavation and replacement for interments.
18. Cemetery land development.
Electronics
19. Communication systems.
New Construction and Related Activities
20. New construction.
21. Interior renovation.
22. Installing new or replacing or relocating onsite existing
building components, site elements, utilities, and equipment.
23. Repair, renovation, and maintenance.
24. Demolition.
25. Environmental remediation and abatement.
Energy
26. Solar and wind energy.
27. Retro commissioning.
28. Conservation and energy efficiency measures.
As appropriate, the activities described by VA's existing 13 CATEXs
are incorporated into the replacement set of 28 CATEXs. VA found it to
be more efficient to replace the existing CATEXs with a new list to add
specificity and clarity and provide VA NEPA practitioners with better
guidance on what qualifies for a CATEX. VA has found the brevity of the
current CATEX descriptions to be difficult to appropriately apply. The
revised list of CATEXs articulates with more specificity the types of
activities to categorically exclude under each CATEX and adds
appropriate limiting factors where needed.
The existing VA regulations do not identify documentation
requirements for CATEXs. The revised regulations identify which CATEXs
require documentation of the CATEX for each proposed action, prepared
in accordance with Sec. 26.30 of the interim final rule.
B. Categories of CATEXs in Revised List
The revised CATEX list is organized categorically by the type of
proposed action recognizable to VA staff across VA programs. These new
groupings will help staff efficiently identify the CATEX applicable to
their proposed action. The following paragraphs describe these CATEX
groups:
VA-Wide Operations
The interim final rule provides five CATEXs for actions common to
multiple VA administrations or offices including field exercises and
training; field studies and surveys; special events, ceremonies, and
related activities; waste management; and transportation. Two CATEXs in
the current regulations address some aspects of these actions but
required definition to clearly describe the types of actions and
prevent misapplication.
Housing Operations
The interim final rule provides one CATEX in this category related
to the provision of housing to veterans or other eligible persons.
There are no CATEXs in the current regulations that specifically
address housing operations.
Acquisition or Disposition of Land, Buildings, or Space
The interim final rule lists five CATEXs by type of proposed action
to address those acquisition and disposition activities that have been
demonstrated historically to have no significant environmental impacts.
These are acquisition of space within an existing structure,
acquisition of land and/or buildings with no near-term change in the
general type and intensity of use, out-leases of buildings and/or land
to third party tenants, agreements for use of VA-owned space, and
disposal of real property that conforms to the General Services
Administration guidance and meets applicable environmental and historic
preservation requirements. The current regulations include only a
single broad CATEX related to some real property type proposed actions.
Services and Procurement
The interim final rule provides four CATEXs specific to services
and procurement, including medical-related services; research; laundry
and food services; and procurement, lease, transport, storage, and
disposition of supplies, materials, and equipment. The current
regulations include two broad
[[Page 36049]]
CATEXs, one for procurement for goods and services for routine facility
operations and support and one for actions supporting normal operation.
Cemetery Operations
The interim final rule provides three CATEXs to capture routine
operations unique to VA's cemetery system. These are interment ceremony
services, soil excavation and replacement for interments, and cemetery
land development within the boundaries of an existing cemetery. There
is only one cemetery-related CATEX in the existing regulations, which
references land development, in addition to a broad CATEX for actions
supporting normal operation.
Electronics
The interim final rule provides one CATEX for communication systems
and ancillary equipment to clarify the types of such projects eligible
for exclusion. There are two CATEXs in the current regulations that are
related but not specific to such projects, resulting in inconsistent
application.
New Construction and Related Activities
The interim final rule provides six CATEXs in this category. These
CATEXs provide greater specificity to the types of activities allowable
and are organized according to the most common types of construction
activities within VA. The CATEXs are new construction on VA property,
or property acquisition plus new construction with a building footprint
that does not exceed 75,000 square feet or development of up to 20
acres of interment space, within certain limitations; interior
renovation; installation, replacement, and relocation of onsite
building components, site elements, site utilities, equipment, and
cemetery elements; repair, renovation, and maintenance at VA
facilities; demolition of structures in accordance with applicable
environmental and historic preservation requirements; and environmental
remediation and abatement. There are five CATEXs in the current
regulations related to construction, but their grouping and definition
require clarification to avoid misapplication.
Energy
The number of similar VA actions related to energy projects has
increased dramatically, pointing to the need for development of new
CATEXs to incorporate VA's experience with energy projects to simplify
review of these actions where appropriate. The interim final rule adds
three CATEXs for proposed actions related to solar and wind energy,
retro commissioning, and conservation measures. There are no CATEXs in
the current regulations that fully address energy projects.
C. Comparison of Existing and Revised CATEXs
This discussion correlates the revised list of CATEXs with existing
CATEXs, for which it provides the existing regulatory language.
1. Existing 38 CFR 26.6(b)(1)(i) Through (iii)
VA will remove the following CATEXs in the existing regulations and
replace them with new Sec. 26.32(a)(6)(i), (7)(iii), (7)(iv), and
(8)(ii), covering related activities:
<bullet> Existing Sec. 26.6(b)(1)(i) Repair, replacement, and new
installation of primary or secondary electrical distribution systems.
<bullet> Existing Sec. 26.6(b)(1)(ii) Repair, replacement, and new
installation of components such as windows, doors, roofs; and site
elements such as sidewalks, patios, fences, retaining walls, curbs,
water distribution lines, and sewer lines which involve work totally
within VA property boundaries.
<bullet> Existing Sec. 26.6(b)(1)(iii) Routine VA grounds and
facility maintenance activities.
The existing CATEXs Sec. 26.6(b)(1)(i) and (ii) group repair,
replacement, and installation activities together for electrical
distribution systems, and separately group repair, replacement, and
installation activities for building and site elements. Existing CATEX
Sec. 26.6(b)(1)(iii) provides for grounds and facility maintenance
activities. VA reorganizes these groupings, moving installation and
replacement under CATEX 22, repair and maintenance under CATEX 23,
alarms and communications equipment under CATEX 19, and retro
commissioning activities under CATEX 27. Note retro commissioning is
the application of the commissioning process to an existing building
that has not previously undergone the commissioning process to reduce
reactive repairs, improve building systems performance, and maintain
energy efficiency in an existing building. This regrouping will
eliminate potential overlapping applicability in the existing list and
clearly distinguish between activities that involve putting new
components onto VA property as installation or replacement; activities
that involve fixing minor components of VA properties; installation or
modification of communications equipment; and activities to analyze,
diagnose, repair, and maintain building systems.
CATEXs 22 and 23 provide examples (not all-inclusive) to illustrate
the type of installation and replacement, and repair and maintenance
activities allowable under the respective CATEX.
Application of CATEX 22 requires documentation of the CATEX for
each proposed action. Application of CATEX 19 requires documentation of
the CATEX for ground-disturbing actions. Application of CATEXs 23 and
27 does not require documentation of the CATEX for each proposed
action.
The substantiation record cites application of existing CATEXs (i),
(ii), and (iii) to demonstrate that VA has previously found these
activities do not generate significant effects and categorically
excluded the actions from further NEPA review. To further support CATEX
22, the substantiation record provides EAs of activities similar to
installation and replacement to demonstrate its experience with these
activities and its findings of no significant impact. VA also includes
the professional opinion of VA staff to support CATEX 27. The
substantiation record also includes benchmarking of a wide variety of
other agencies' CATEXs to demonstrate how other agencies have treated
similar activities. Agency benchmarking examples include CATEXs from
the Department of Agriculture, Air Force, Army, Department of Energy,
Environmental Protection Agency, Federal Highway Administration, U.S.
Forest Service, General Services Administration, Department of Homeland
Security, Department of the Interior, and Navy.
2. Existing 38 CFR 26.6(b)(1)(iv)
VA is removing the following CATEX in the existing regulations and
replacing it with new Sec. 26.32(a)(4)(iv), covering related
activities:
<bullet> Existing Sec. 26.6(b)(1)(iv) Procurement activities for
goods and services for routing [sic] facility operations maintenance
and support.
The existing CATEX (iv) addresses procurement activities for goods
and services for routine facility operations maintenance and support.
VA is issuing one new CATEX to replace existing CATEX (iv). The
revision will allow VA practitioners to evaluate the applicability of
the CATEX more specifically to a proposed action. Under CATEX 15, VA
clarified the CATEX requires that procurements must comply with
Federal, State, and local requirements and be purchased in accordance
with applicable policies and agency procurement requirements.
[[Page 36050]]
Application of CATEX 15 does not require documentation of the CATEX
for each proposed action.
The substantiation record cites to VA's application of existing
CATEX (iv), which encompasses services and goods for operations
maintenance and support as evidence of VA's previous experience with
these activities for which it has previously found procurement of
goods, including medical supplies and other materials, and services to
include a list of other agency CATEXs covering similar types of
activities; CATEX 18 includes CATEXs from the Navy and the Postal
Service; and CATEX 20 includes CATEXs from the Air Force, Army, Bureau
of Prisons, Department of Homeland Security, Department of the
Interior, Navy, and Postal Service. VA also includes the professional
opinion of VA staff to support CATEX 17.
3. Existing 38 CFR 26.6(b)(1)(viii)
VA is removing the following CATEX in the existing regulations and
replacing it with aspects of new Sec. 26.32(a)(1)(i), (iii), (iv),
(v); (2)(i); (4)(i), (ii), (iii), (iv); and (6)(i), covering similar
activities:
<bullet> Existing Sec. 26.6(b)(1)(viii) Actions which involve
support or ancillary appurtenances for normal operation.
VA currently uses existing CATEX (viii) to cover a variety of
activities that are necessary to support its primary operational focus
of supporting veterans. Activities covered by existing CATEX (viii)
include those proposed for provision of field exercises and training,
special events and ceremonies, waste management, transportation,
housing, medical-related services, aspects of research, laundry and
food services, procurement, and communication systems. Because the
language of existing CATEX (viii) is overly broad, VA staff and the
public have had difficulty understanding what the existing language
covers, resulting in inconsistent application of the CATEX. The CATEXs
are intended to provide greater specificity and consistency in
application of CATEXs throughout VA for these ancillary activities.
Application of CATEXs 1, 3, 4, 5, 6, 12, 13, 14, and 15 does not
require documentation of the CATEX for each proposed action.
Application of CATEX 19 requires documentation for ground-disturbing
activities.
The substantiation record for the CATEXs cites to existing CATEX
(viii), which VA currently uses to categorically exclude these
activities from further NEPA review. The substantiation record also
provides a number of similar CATEXs of other agencies to benchmark how
other agencies have similarly found these activities to not have the
potential for significant impacts. These other agencies include the Air
Force, Army, Bureau of Prisons, Department of Energy, Environmental
Protection Agency, Department of Homeland Security, Department of
Housing and Urban Development, Department of the Interior, Department
of Justice, National Aeronautics and Space Administration, Navy, and
Nuclear Regulatory Commission. VA also includes the professional
opinion of VA staff to support CATEXs 1, 4, 5, 6, 12, 13, and 14.
4. Existing 38 CFR 26.6(b)(1)(ix)
VA is removing the following CATEX in the existing regulations and
replacing it with new Sec. 26.32(a)(3)(i), (iii), and (iv) covering
similar activities:
<bullet> Existing Sec. 26.6(b)(1)(ix) Leases, licenses, permits,
and easements.
VA currently uses existing CATEX (ix) to categorically exclude any
activity related to obtaining (or extending or offering) leases,
licenses, permits, and easements VA have no significant impact. The
substantiation record also benchmarks other agencies' CATEXs covering
procurement of goods and services broadly, including agencies such as
the Army, Department of Energy, and Nuclear Regulatory Commission.
5. Existing 38 CFR 26.6(b)(1)(v)
VA is removing the following CATEX in the existing regulations and
replacing it with new Sec. 26.32(a)(7)(i), (ii), and (vi), covering
related activities:
<bullet> Existing Sec. 26.6(b)(1)(v) Interior construction or
renovation.
VA currently uses the existing Sec. 26.6(b)(1)(v) for all interior
construction and renovation work that it knows will not generate a
significant impact. However, the existing CATEX neither provides any
limiting factors nor clearly articulates the type of activities covered
within the broad range of interior construction or renovation actions.
To improve the application of NEPA for these activities and provide
better guidance to VA practitioners, VA provides CATEXs 20, 21, and 25,
which together cover activities previously categorically excluded under
the existing CATEX.
CATEX 21 clarifies that the scope of actions of ``interior
renovation'' refers to ``renovation, alteration, restoration, or
rehabilitation projects'' and removes the word ``construction,'' which
is now covered under CATEX 20. CATEX 25 includes, along with other
types of remediation, asbestos and lead-based paint abatement, which
are routine activities for VA during interior construction and
renovation projects that VA knows through experience do not generate
significant impacts when following all applicable environmental and
historic preservation requirements. The additional specificity added
through CATEXs 21 and 25, and the separation of construction actions
included in CATEX 20, will aid VA practitioners in appropriately and
consistently using these CATEXs across all VA facilities.
All VA CATEXs require VA to conduct the action in accordance with
applicable environmental and historic preservation requirements.
Application of CATEX 20 requires documentation of the CATEX for
each proposed action. Application of CATEXs 21 and 25 does not require
documentation of the CATEX for each proposed action.
As VA previously used existing CATEX (v) to cover these activities,
the substantiation record lists that existing CATEX for reference to
support CATEX 21. VA is also supporting the promulgation of the CATEXs
by including EAs in the substantiation record to demonstrate evidence
of findings of no significant impact for renovation activities. For
CATEX 25, VA cites to existing CATEX (v) to demonstrate its previous
experience with remediation and asbestos and lead-based paint abatement
activities and its decision to categorically exclude those activities
from further NEPA review. VA also states that other types of
environmental remediation actions that will be eligible for CATEX 25
would not have significant environmental impacts when conducted in
accordance with environmental and historic preservation requirements,
as their sole objective is to improve existing environmental
conditions. The substantiation record also includes EAs for which the
proposed action included abatement or remediation activities, and other
agency CATEXs that benchmark similar activities that have been found to
not generate significant impacts, including the Air Force, Army,
Defense Logistics Agency, Department of Energy, Environmental
Protection Agency, Federal Highway Administration, General Services
Administration, Department of Homeland Security, Department of the
Interior, Navy, and Postal Service.
6. Existing 38 CFR 26.6(b)(1)(vi and vii)
VA is removing the following CATEXs in the existing regulations and
replacing them with aspects of new Sec. 26.32(a)(5)(ii), (iii), and
(7)(i), covering similar activities:
[[Page 36051]]
<bullet> Existing Sec. 26.6(b)(1)(vi) New construction of 75,000
gross square feet or less.
<bullet> Existing Sec. 26.6(b)(1)(vii) Development of 20 acres of
land or less within an existing cemetery, or development on acquired
land of five acres or less.
In the new CATEXs, VA clarifies the parameters around when new
construction and development activities may be categorically excluded.
Existing CATEXs (vi) and (vii) provide square footage and acreage
limitations only, which do not address the necessary limiting factors
that VA historically considers when determining whether to
categorically exclude new construction activities from further NEPA
review, based on agency experience and understanding of what activities
may cause significant impacts. CATEX 18 provides for land development
within an existing cemetery when it complies with applicable
environmental and historic preservation requirements. CATEX 17 provides
for soil excavation and replacement for interments in pre-placed crypts
and direct burials in existing cemeteries. CATEX 20 applies to
construction supporting any of VA's missions (veterans' health care,
veterans' benefits, national cemeteries, and preparedness) and requires
the project, whether on existing or newly acquired VA property or
through a build-to-suit lease, to not exceed the capacity of existing
infrastructure and comply with applicable environmental and historic
preservation requirements. These details will enable VA practitioners
to more easily determine whether to apply a CATEX to new construction
activities.
Application of CATEXs 18 and 20 requires documentation of the CATEX
for each proposed action. Application of CATEX 17 does not require
documentation of the CATEX for each proposed action.
For CATEXs 18 and 20, the substantiation record cites to
application of existing CATEXs (vi) and (vii), which VA currently use
to categorically exclude new construction activities. VA also provides
support in the substantiation record through EAs of similar activities
to demonstrate the scope of the CATEXs aligns with its findings of the
types of new construction activities that will not generate significant
impacts, from onsite construction at hospitals and other medical
facilities. The substantiation record also knows will not generate
significant impacts. However, existing CATEX (ix) lacks descriptive
language and limiting factors to guide VA practitioners in its
application. In review, VA is establishing CATEXs 7, 9, and 10 to
better define these types of activities and requiring the activity to
result in no change in the general type of use and no more than minimal
occupancy level changes. In CATEX 7, VA is acquiring space within an
existing structure from a third party. In CATEX 9, VA is offering out-
leases of building and/or land to third party tenants. In CATEX 10, VA
is offering Federal or State agencies or entities an agreement for
sharing space and resources.
Application of CATEXs 7, 9, and 10 requires documentation of the
CATEX for each proposed action.
As VA previously categorically excluded all related leasing,
licensing, permitting, and easement activities that it knew through
experience would not generate significant impacts, existing CATEX (ix)
is the primary support for CATEXs 7, 9, and 10. The substantiation
record also includes a number of EAs for CATEX 9 as further
substantiation. The substantiation record also includes benchmarking of
similar CATEXs from other Federal agencies, including the Air Force,
Army, Bureau of Land Management, Department of Energy, Environmental
Protection Agency, Federal Aviation Administration, Department of
Homeland Security, General Services Administration, and National
Aeronautics and Space Administration.
7. Existing 38 CFR 26.6(b)(1)(x)
VA is removing the following CATEX in the existing regulations:
<bullet> Existing Sec. 26.6(b)(1)(x) Reduction in force resulting
from workload adjustments, reduced personnel or funding levels, skill
imbalances, or other similar causes.
Section 106 of the NEPA statute as revised states that an agency is
not required to prepare an environmental document if ``the proposed
agency action is a nondiscretionary action with respect to which such
agency does not have authority to take environmental factors into
consideration in determining whether to take the proposed action'', and
section 111 of the NEPA statute as revised excludes ``activities or
decisions that are non-discretionary and made in accordance with the
agency's statutory authority,'' as well as ones with no or minimal
Federal funding, from the definition of ``major Federal action''. 42
U.S.C. 4336(a)(4), 4336e(10)(B)(vii). Therefore, such actions are
excluded from the requirement for NEPA review and VA does not include
this CATEX in the interim final rule.
8. Existing 38 CFR 26.6(b)(1)(xi)
VA is removing the following CATEX in the existing regulations and
replacing it with new 38 CFR 26.32(a)(1)(ii), covering similar
activities:
<bullet> Existing Sec. 26.6(b)(1)(xi) VA policies, actions and
studies which do not significantly affect the quality of the human
environment.
VA is replacing existing CATEX (xi) with CATEX 2. The existing
CATEX (xi) is written broadly and does not specify what types of
policies, actions, studies, and guidance are major Federal actions
subject to NEPA review and that fall within the scope of the CATEX.
CATEX 2 will clarify this CATEX's applicability for VA practitioners.
The new CATEX specific to field studies and surveys clarifies the types
of activities that are eligible for this CATEX and promotes consistency
in NEPA reviews across VA.
For CATEX 2, the substantiation record cites to existing CATEX
(xi), which VA currently uses to CATEX these types of actions, and
benchmarks to other agency CATEXs. Other agency CATEXs similar to CATEX
2 and included in the substantiation record are from the Army,
Department of Energy, General Services Administration, Department of
Homeland Security, and National Aeronautics and Space Administration.
Application of CATEX 2 does not require documentation of the CATEX
for each proposed action.
9. Existing 38 CFR 26.6(b)(1)(xii) and (xiii)
VA is eliminating the following existing VA CATEXs:
<bullet> Existing Sec. 26.6(b)(1)(xii) Preparation of regulations,
directives, manuals or other guidance that implement, but do not
substantially change, the regulations, directives, manuals, or other
guidance of higher organizational levels or another Federal agency.
<bullet> Existing Sec. 26.6(b)(1)(xiii) Actions, activities, or
programs that do not require expenditure of Federal funds.
VA rarely, if ever, applied CATEX (xii) due to its ill-defined
nature, and it is not being retained. Regarding existing CATEX (xiii),
section 111 of the NEPA statute as revised excludes actions with no or
minimal Federal funding from the definition of ``major Federal
action''. 42 U.S.C. 4336e(10)(B)(i)(I). Therefore, such actions are
excluded from the requirement for NEPA review and VA does not include
these CATEXs in the interim final rule.
[[Page 36052]]
10. CATEXs for Activities Not Previously Categorically Excluded
The following CATEXs are for activities not previously clearly
categorically excluded under the existing VA CATEX list in 38 CFR part
26:
38 CFR 26.32(a)(3)(ii) CATEX 8: Acquisition of land and/or
buildings.
The substantiation record includes some aspects of existing VA
CATEXs (vi), (vii), and (ix); and a number of EAs demonstrating that VA
experience in acquisitions of land and/or buildings does not have the
potential for significant impacts when there is no near-term proposed
change in the general type of use or occupancy level. Also provided in
the substantiation record are similar CATEXs from other agencies to
benchmark how other agencies also found similar activities to not have
the potential for significant impacts, including the Department of
Energy, Environmental Protection Agency, and General Services
Administration. Application of CATEX 8 requires documentation of the
CATEX for each proposed action.
38 CFR 26.32(a)(3)(v) CATEX 11: Disposal of real property.
The substantiation record for CATEX 11 includes an EA demonstrating
VA experience conducting these activities through either the transfer
or sale of VA-owned property to other entities. The substantiation
record also provides benchmarks of similar CATEXs of other Federal
agencies including the Air Force, Army, Bureau of Land Management,
Department of Energy, Environmental Protection Agency, Federal Highway
Administration, and General Services Administration. Application of
CATEX 11 requires documentation of the CATEX for each proposed action.
38 CFR 26.32(a)(4)(ii) CATEX 13: Research.
The substantiation record includes some aspects of existing VA
CATEX (viii), and a number of similar CATEXs from other agencies to
benchmark how other agencies also found research actions similar to
those at VA where applicable environmental and safety requirements are
met. These other agency CATEXs include those from the Department of
Agriculture, Air Force, Army, Department of Energy, Environmental
Protection Agency, Department of Homeland Security, National
Aeronautics and Space Administration, and Navy. VA also provides the
professional opinion of VA staff with experience conducting this
activity to support CATEX 13. Application of CATEX 13 does not require
documentation of the CATEX for each proposed action.
38 CFR 26.32(a)(5)(i) CATEX 16: Interment ceremony services.
Other agencies with memorial services including the Army, the
National Aeronautics and Space Administration, and the Navy have found
that ceremonies for memorial and interment do not have the potential
for significant impacts. VA has included references to these other
agencies' CATEXs for similar activities to benchmark its own CATEX. VA
also includes the professional opinion of VA staff with experience
conducting these activities to support CATEX 16. Application of CATEX
16 does not require documentation of the CATEX for each proposed
action.
38 CFR 26.32(a)(7)(v) CATEX 24: Demolition.
For CATEX 24, the substantiation record includes several EAs to
demonstrate VA's consistent findings of no significant impact for
demolition of structures. Additionally, the substantiation record
provides references to similar CATEXs at other agencies to benchmark
those other agencies' determinations that demolition activities have no
potential for significant impacts with completion of National Historic
Preservation Act consultation, including the Army, Department of
Energy, and Department of Homeland Security. Application of CATEX 24
requires documentation of the CATEX for each proposed action.
38 CFR 26.32(a)(8)(i) CATEX 26: Solar and wind energy.
The substantiation record includes aspects of existing VA CATEX
(ii) and EAs for the installation of solar photovoltaic systems and
wind turbines on existing non-historic structures to substantiate the
CATEX. These EAs demonstrate the consistent finding of no significant
impact for installation of solar photovoltaic systems and wind turbines
by VA on structures such as buildings or carports that have no
historical significance. The substantiation record also includes two
references to Department of Energy CATEXs covering similar actions to
benchmark the CATEX. Application of CATEX 26 requires documentation of
the CATEX for each proposed action.
38 CFR 26.32(a)(8)(iii) CATEX 28: Conservation and energy
efficiency measures.
For CATEX 28, the substantiation record includes aspects of
existing CATEX (v) and EAs VA has conducted that included conservation
and energy efficiency improvements in its facilities as part of a
variety of larger actions including upgrade, renovation, and new
construction in different parts of the country and demonstrates the
consistent finding of no significant impact. The substantiation record
also benchmarks other agencies' CATEXs for similar actions by the
Department of Energy and Federal Transit Administration. Application of
CATEX 28 requires documentation of the CATEX for proposed actions
involving ground source heat pump and combined heat and power systems,
power storage, and small-scale research and development for energy
efficiency and conservation.
Executive Orders 12866, 13563, and 14192
VA examined the impact of this rulemaking as required by Executive
Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits. The Office of Information and
Regulatory Affairs has determined that this rulemaking is not a
significant regulatory action under Executive Order 12866, as
supplemented by Executive Order 13563. This interim final rule is a
deregulatory action under Executive Order 14192.
Economic Impact: VA expects minor cost savings that cannot be
quantified. VA does not have specific data to assess the economic
impact of this interim final rule because such data do not exist and
would be difficult to develop. This interim final rule modifies 38 CFR
part 26. VA anticipates that the changes in this interim final rule
will enable projects to move more expeditiously through the Federal
environmental review process. It will reduce the preparation of
extraneous environmental documentation and analysis not needed for
compliance with NEPA while still ensuring that projects are built in an
environmentally responsible manner and consistent with Federal law.
Administrative Procedure Act
The Secretary of Veterans Affairs finds that there is good cause
under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without
prior opportunity for public comment.
VA's basis for issuing an interim final rule is the Administrative
Procedure Act (APA) exception for ``interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice''. 5 U.S.C. 553(b)(A). VA's regulations implementing NEPA's
procedural requirements may be characterized as rules of agency
procedure and practice. NEPA itself is a
[[Page 36053]]
``purely procedural statute'' which `` `simply prescribes the necessary
process' for an agency's environmental review of a project''--a review
that is, even in its most rigorous form, ``only one input into an
agency's decision and does not itself require any particular
substantive outcome''. Seven County, 145 S. Ct. at 1511). ``NEPA
imposes no substantive constraints on the agency's ultimate decision to
build, fund, or approve a proposed project,'' and ``is relevant only to
the question of whether an agency's final decision . . . was reasonably
explained''. Seven County, 145 S. Ct. at 1511. VA's regulations
implementing NEPA do not dictate what outcomes such consideration must
produce, nor do they impose binding legal obligations on private
citizens. Rather, they prescribe the procedure by which VA should
conduct its NEPA reviews: for example, by detailing the structure of
EISs, specifying procedural requirements, and directing the timing of
public comment periods. These are procedural provisions, not
substantive environmental ones. Indeed, it is hard to see how they
could be otherwise, since the Supreme Court has recently repeatedly
emphasized that ``NEPA is a purely procedural statute''; ``NEPA is
purely procedural. . . . NEPA does not mandate particular results, but
simply prescribes the necessary process for an agency's environmental
review of a project'' (internal quotation omitted); ``NEPA is a purely
procedural statute''; `NEPA is properly understood as ``a modest
procedural requirement'' '; ``NEPA's status as a purely procedural
statute''; and ``Simply stated, NEPA is a procedural cross-check, not a
substantive roadblock''. Seven County, 145 S. Ct. at 1507, 1510, 1511,
1513, 1514. Procedures for implementing a purely procedural statute
must be, by their nature, procedural rules. Thus, they cannot be
legislative rules; as such, they do not need to be promulgated via
notice-and-comment rulemaking.
Even if VA's regulations were not procedural rules, they may be
characterized as interpretative rules or general statements of policy.
See 5 U.S.C. 553(b)(A). An interpretative rule provides an
interpretation of a statute rather than makes discretionary policy
choices, which establish enforceable rights or obligations for
regulated parties under delegated congressional authority. General
statements of policy provide notice of an agency's intentions as to how
it will conduct itself, again without creating enforceable rights or
obligations for regulated parties under delegated congressional
authority.
Both of these types of agency action are expressly exempted from
notice and comment by statute. 5 U.S.C. 553(b)(A). While the exception
excludes notice and comment procedures, VA invites public comments on
this interim final rule and will fully consider and address any
comments received.
Moreover, VA also finds that, to the extent that prior notice and
solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the APA's ``good cause''
exceptions (5 U.S.C. 553(b)(B), (d)). The APA authorizes agencies to
issue regulations without notice and public comment when an agency
finds, for good cause, that notice and comment is ``impracticable,
unnecessary, or contrary to the public interest'' (5 U.S.C. 553(b)(B))
and to make the rule effective immediately for good cause (5 U.S.C.
553(d)(3)). VA's existing regulations were promulgated to implement
NEPA in accordance with CEQ's NEPA regulations, and thus relied on
CEQ's NEPA regulations (38 CFR 26.1). As such, VA's current rules are
in an uncertain status, implementing a NEPA process that no longer
exists. VA, thus far and as a temporary, emergency measure, has been
continuing to operate under its prior procedures as if the CEQ NEPA
process still existed. However, this is not tenable.
That being so, rescinding the old procedures immediately without
replacing them would create a vacuum that would inflict immense
uncertainty and potentially grind all projects under VA's purview to a
halt. So, pairing the rescission with a new structure immediately is
critical. Because of this need for speed and certainty, notice-and-
comment is, to the extent it was required at all, impracticable and
contrary to the public interest.
To the extent that public comment may inform VA as to whether it
has legal authority to make a different choice than the one it has
taken in this interim final rule, VA's solicitation of public comment
for 30 days following the publication of the interim final rule is
intended to accommodate that possibility. To the extent that this
interim final rule would otherwise require a proposal and solicitation
of public comment, VA's view is that the ``good cause'' exception (5
U.S.C. 553(b)(B)) pertains here. And though VA seeks comments to obtain
the public's views, such comments could not alter the legal realities--
most notably the repeal of CEQ's NEPA rules and the rescission of the
executive order that purported to authorize them--that create the swift
need for such a change. VA will consider comments submitted in response
to this action and may address them when issuing a final rule, if
warranted, after consideration of the comments received.
For the same reasons, VA finds that ``good cause'' exists under 5
U.S.C. 553(d)(3) to waive the 30-day delay of the effective date that
would otherwise be required. This interim final rule will accordingly
be effective immediately.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) is not applicable
to this rulemaking because notice of proposed rulemaking is not
required. 5 U.S.C. 601(2), 603(a), 604(a).
Unfunded Mandates
This interim final rule will not result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year.
Paperwork Reduction Act
This interim final rule contains no provisions constituting a
collection of information under the Paperwork Reduction Act (44 U.S.C.
3501 through 3521).
Tribal Consultation
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, directs agencies to engage in nation-to-nation
consultation with Tribes on agency actions that have substantial direct
effects on Tribes. VA has assessed the impact of this interim final
rule on Indian Tribal governments and has determined preliminarily that
the interim final rule does not significantly or uniquely affect these
communities. VA will continue to consult with Tribal nations on
individual actions in compliance with Executive Order 13175, agency
policy, and other authorities such as the National Historic
Preservation Act.
NEPA
This interim final rule is procedural in its entirety and therefore
does not require preparation of a NEPA analysis. NEPA does not require
environmental analysis or documentation when establishing procedural
guidance. Thus, establishing NEPA procedures does not require NEPA
analysis and documentation (Heartwood, Inc. v. U.S. Forest Service, 230
F.3d 947, 954-55 (7th Cir. 2000)).
List of Subjects in 38 CFR Part 26
Environmental impact statements.
[[Page 36054]]
Signing Authority
Douglas A. Collins, Secretary of Veterans Affairs, approved this
document on June 8, 2026, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Gabriela DeCuir,
Alternate Federal Register Liaison Officer, Department of Veterans
Affairs.
0
For the reasons stated in the preamble, the Department of Veterans
Affairs revises 38 CFR part 26 to read as follows:
PART 26--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES
Subpart A--General Information
Sec.
26.0 Purpose of this subpart.
26.10 Purpose of this part.
26.11 Applicability and scope.
26.12 Definitions.
26.13 Responsibilities.
26.14 Environmental practices.
Subpart B--NEPA Process for VA Actions
26.20 Purpose of this subpart.
26.21 Integrating NEPA with VA planning.
26.22 Determining the appropriate level of NEPA review.
26.30 Categorical exclusions.
26.31 Adoption and application of CATEXs from another agency's NEPA
procedures.
26.32 List of VA categorical exclusions.
26.40 Requirements for EAs.
26.41 Requirements for EISs.
26.42 Public engagement procedures.
26.50 Mitigation and monitoring.
26.60 The decision: documentation and initiation of action.
26.70 Programmatic NEPA documents.
26.71 Reliance on existing NEPA documents.
26.72 Combining documents.
26.73 Supplemental analyses.
Subpart C--The Role of Third Parties in the NEPA Process
26.80 Purpose of this subpart.
26.81 Relationships with third parties.
26.82 State, Tribal, and local requirements.
26.83 Applicants for Federal assistance.
26.84 Non-compliance by applicants.
Subpart D--Unique Procedures: Emergencies, Protected Information, and
International Actions
26.90 Purpose of this subpart.
26.91 Emergencies.
26.92 Sensitive or classified information.
26.93 International actions or effects.
Authority: 42 U.S.C. 4321-4370a; E.O. 11514, 90 FR 8353.
Subpart A--General Information
Sec. 26.0 Purpose of this subpart.
This subpart provides the procedures by which the Department of
Veterans Affairs (VA) considers the environmental effects of its
actions in carrying out the VA mission. This subpart also sets forth
the scope and terminology of this part, and the responsibilities for
implementing the requirements of the National Environmental Policy Act
(NEPA) and this part.
Sec. 26.10 Purpose of this part.
(a) The purpose of this part is to implement NEPA as amended (42
U.S.C. 4321 et seq.) for VA actions. VA will follow the procedures and
policies outlined in this part; relevant Executive orders, statutes,
and regulations; and the policies of VA.
(b) This part establishes a framework for the early incorporation
of the NEPA process into VA planning and decision-making for all VA
activities that meet the definition of major Federal action in section
111(10) of NEPA (42. U.S.C. 4336e(10)).
(c) This part emphasizes the quality and timeliness of analysis of
environmental effects rather than simply the production of documents.
(d) VA intends this part to ensure that VA identifies and considers
relevant environmental information early in the process to ensure
informed decision-making; to ensure that VA conducts environmental
reviews in a coordinated, consistent, predictable, and timely manner;
to reduce unnecessary burdens and delays; and to promote concurrent
environmental reviews to ensure timely and efficient decision-making.
(e) This part does not, nor does it intend to, govern the rights
and obligations of any party outside the Federal Government. They do,
however, establish the procedures under which VA will typically fulfill
its requirements under NEPA.
(f) In addition to the process for establishing or revising
categorical exclusions (CATEXs) set forth in Sec. 26.30(d), VA will
consult with the Council on Environmental Quality (CEQ) on any proposed
future revisions to these NEPA implementing procedures in accordance
with section 102(2)(B) of NEPA (42 U.S.C. 4332(B)).
Sec. 26.11 Applicability and scope.
(a) This part applies to all VA elements in the United States, its
territories, and possessions. VA elements include, but are not limited
to, all of the sub-agencies, offices, organizations, and
administrations under VA control. This part also has information
relevant to third parties who participate or otherwise assist VA in the
NEPA process, including but not limited to States, Tribes, and
applicants for VA benefits or other assistance. Subpart C of this part
discusses the role of third parties in the NEPA process. In addition,
Sec. 26.93 provides information relevant to international actions or
effects.
(b) VA's major Federal actions as defined in section 111(10) of
NEPA (42 U.S.C. 4336e(10)) are subject to NEPA. In this part, VA
actions refer to actions for which VA is the decision-maker (see Sec.
26.12 for definition of decision-maker).
(1) This part applies to all VA major Federal actions. VA
anticipates, on the basis of its experience, that the following types
of actions are generally ``major'':
(i) Construction and maintenance projects;
(ii) Real property acquisition and disposal;
(iii) Leases and sharing agreements;
(iv) Grants and other funding actions; and
(v) Other facility and asset management decisions.
(2) VA will determine that NEPA does not apply to a proposed action
when:
(i) The activities or decision do not result in final agency action
under the Administrative Procedure Act (5 U.S.C. 704) or other relevant
statute that also includes a finality requirement;
(ii) The proposed activity or decision is explicitly exempt from
NEPA by law;
(iii) NEPA compliance would clearly and fundamentally conflict with
another provision of law;
(iv) Congress, by statute, has prescribed decisional criteria with
sufficient completeness and precision such that VA retains no residual
discretion to alter its action based on the consideration of
environmental factors, in which case that function of VA is
nondiscretionary within the meaning of NEPA section 106(a)(4) and/or
section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii),
respectively), and NEPA does not apply to the action in question;
(v) The proposed action is an action for which another statute's
requirements serve the function of agency compliance with NEPA; or
(vi) The proposed action is not a ``major Federal action.'' The
terms ``major'' and ``Federal action,'' each have independent force.
NEPA applies only when both of these two criteria are met. Such a
determination is inherently bound up in the facts and circumstances of
each individual situation, and is thus
[[Page 36055]]
reserved to the judgment of VA in each instance. NEPA does not apply to
``non-Federal actions.'' Therefore, under section 111(10)(B)(i) of
NEPA, 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 project (42 U.S.C.
4336e(10)(B)(i)). A ``but-for'' causal relationship is insufficient to
make an agency responsible for a particular action under NEPA. 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. VA has determined that the following non-
exhaustive list of VA activities or decisions are not subject to NEPA
because they presumptively do not meet the definition of a ``major
Federal action'':
(A) Entitlement actions (see Sec. 26.83(d)) and the VA home loan
guaranty program; or
(B) The actions involve routine administrative matters including
but not limited to funding salaries, fellowships, corresponding fringe
benefits, and travel; budgeting; finance; program management; and
record keeping.
(vii) In determining whether NEPA applies to a proposed agency
action, VA will consider only the action or project at hand.
Sec. 26.12 Definitions.
(a) All definitions of words and phrases in section 111 of NEPA (42
U.S.C. 4336e) apply to the procedures in this part.
(b) In addition to the terms defined in section 111 of NEPA (42
U.S.C. 4336e), the following definitions apply to the procedures in
this part:
Applicant means a non-Federal entity that seeks an action by VA
such as granting a permit, license, or financial assistance. The term
applicant includes Project Sponsors as referenced in sections 107(f)
and 112 of NEPA (42 U.S.C. 4336a(f); as amended through Pub. L. 119-21,
July 4, 2025).
Approval authority means the responsibility and authority to
approve and sign a decision document such as a finding of no
significant impact or record of decision, a memorandum of agreement, a
consultation letter, or programmatic agreement. VA has approval
authority for all VA actions. VA assigns and may delegate approval
authority according to Sec. 26.13.
Connected actions means a separate Federal action within the
authority of VA that is closely related to the proposed agency action
and should be addressed in a single NEPA document because the proposed
agency action:
(i) Automatically triggers the separate Federal action, which
independently would require the preparation of additional NEPA
documents;
(ii) Cannot proceed unless the separate Federal action is taken
previously or simultaneously; or
(iii) Is an interdependent part of a larger Federal action that
includes a separate Federal action, which mutually depend on the larger
Federal action for their justification.
Decision document means a record of decision for an environmental
impact statement, a finding of no significant impact for an
environmental assessment, or the categorical exclusion document
required for application of certain categorical exclusions as required
in Sec. 26.30(a).
Decision-maker means the entity or individual within VA with the
authority to decide whether to proceed on a proposed action or select
an alternative. In many, but not all, cases, the decision-maker will be
the same individual or entity as the proponent. See also Sec. 26.13(e)
for a discussion of decision-maker responsibilities.
Effects or impacts means changes to the human environment from the
proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives.
(i) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such as
the effects on employment), social, or health effects. Effects
appropriate for analysis under NEPA may be either beneficial or
adverse, or both, with respect to these values.
(ii) A ``but-for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include those effects that the agency has no ability to prevent due to
the limits of its regulatory authority, or that would occur regardless
of the proposed action, or that would need to be initiated by a third
party.
Extraordinary circumstances means factors or circumstances that
indicate a normally categorically excluded action may have a
potentially significant effect as described in Sec. 26.30(b).
Human environment or environment means comprehensively the natural
and physical environment and the relationship of present and future
generations with that environment.
Interim action means an action taken before the decision document
is issued. Interim actions include but are not limited to VA actions
for individual projects within a program before a programmatic analysis
is complete for the entire program. See Sec. 26.60(c) for limitations
on actions during the NEPA process.
Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
Mitigation means measures that avoid, minimize, or compensate for
effects caused by a proposed action or alternatives as described in a
NEPA document and that have a nexus to those effects. While NEPA
requires consideration of mitigation, it does not mandate the form or
adoption of any mitigation. Mitigation can include:
(i) Avoiding the impact altogether by not taking a certain action
or parts of an action.
(ii) Minimizing effects by limiting the degree or magnitude of the
action and its implementation.
(iii) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
(iv) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(v) Compensating for the impact by replacing or providing
substitute resources or environments.
NEPA document means a categorical exclusion document, environmental
assessment, environmental impact statement, finding of no significant
impact, record of decision, notice of intent, notice of availability,
or any other document prepared by VA pursuant to a requirement of NEPA.
This is inclusive of ``environmental documents'' as defined in section
111(5) of NEPA (42 U.S.C. 4336e(5), which refers specifically to
environmental impact statements, environmental assessments, and
findings of no significant impact.
NEPA Implementation Officer means the VA official responsible for
helping to ensure the successful implementation of the NEPA process
across all VA offices and administrations. See Sec. 26.13(f) for a
list of responsibilities.
NEPA process means all measures necessary for compliance with the
requirements of section 2 and title I of NEPA (42 U.S.C. 4321, 4331-
4336e; section 112 as amended through Pub. L. 119-21, July 4, 2025).
NEPA Specialist means a technical specialist in VA for matters
relating to
[[Page 36056]]
NEPA. See Sec. 26.13(h) for a list of responsibilities.
No action alternative means the option of maintaining the status
quo and not proceeding with any action. The no action alternative may
be included in the reasonable range of alternatives and may establish a
benchmark for comparative analysis under NEPA.
Notice of availability means a notice announcing the issuance and
public availability of a NEPA document.
Notice of intent means a public notice that an agency will prepare
and consider an environmental impact statement or, as applicable, an
environmental assessment.
Other environmental planning requirements means environmental
planning requirements including, but not limited to, section 106 of the
National Historic Preservation Act (54 U.S.C. 306108) and its
implementing regulations, section 7 of the Endangered Species Act (16
U.S.C. 1536) and its implementing regulations, Executive orders, and
other environmental laws.
Proponent means the VA element, employee, or representative
responsible for planning and initiating the proposed action. In many,
but not all, cases, the proponent will be the same individual or entity
as the decision-maker. See Sec. 26.13(g) for a list of
responsibilities.
Proposed action is used synonymously with ``proposal'' in this
part; see 42 U.S.C. 4336e(12) for the definition of a proposal.
Public means individuals, non-governmental organizations, and
community groups. VA may involve the public in the NEPA process through
notice and comment procedures. Affected public means those parties with
a special interest in a proposed action. Affected public includes, but
is not limited to, veterans, entities living in close proximity to a
proposed action, and entities whose property or other interests may be
affected by potential effects of a proposed action. See Sec. 26.42 for
public engagement procedures.
Publish and publication mean methods found by the agency to
efficiently and effectively make NEPA documents and information
available for review by interested persons, including electronic
publication.
Related action means an action undertaken by an agency, for
example, a permitting action, some other type of authorization action,
an analysis required by statute, or the like, that bears a relationship
to other actions undertaken by other agencies relevant to NEPA, such
that a set of related actions are all related to one overarching
project.
Reasonable alternatives means a reasonable range of alternatives
that are technically and economically feasible, meet the purpose and
need for the proposed action, and, where applicable, meet the goals of
the applicant.
Reasonably foreseeable means sufficiently likely to occur such that
a person of ordinary prudence would take it into account in reaching a
decision.
Record of decision means a concise public document prepared by VA
after an environmental impact statement is complete and that includes
all elements listed in Sec. 26.60(a)(2).
Scope consists of the range of actions, alternatives, and effects
to be considered in a NEPA document. The scope of an individual
statement may depend on its relationships to other statements.
Supplemental means an analysis performed after an environmental
assessment or environmental impact statement has been issued.
Supplemental analyses are prepared when the agency makes substantial
changes to the proposed action that are relevant to environmental
concerns or there are substantial new circumstances or information
relevant to environmental concerns and bearing on the proposed action
or its effects.
Tiering refers to the coverage of general matters in broader
environmental impact statements or environmental assessments (such as
national program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or basin-wide
program statements or ultimately site-specific statements)
incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently prepared.
United States means all States, territories, and possessions of the
United States, including all waters and air space subject to the
territorial jurisdiction of the United States.
VA elements mean all entities within VA, including but not limited
to all offices, programs, and administrations within VA.
Sec. 26.13 Responsibilities.
(a) Successful completion. The successful completion of the NEPA
process is the duty of:
(1) VA elements;
(2) Persons authorizing or approving VA actions; and
(3) Persons charged by VA to ensure the successful implementation
of any and all elements of NEPA.
(b) Applicants. VA relies upon applicants to supply the
environmental information necessary to complete the NEPA analysis of
proposed VA funded and Federal assistance actions and alternatives. VA
retains the responsibility for compliance with NEPA and cannot delegate
this responsibility to applicants.
(c) Secretary of VA. The Secretary of VA recognizes the importance
of environmental stewardship and promotes the integration of an
environmental ethic into all agency decision-making. The Secretary
possesses the ultimate responsibility to ensure VA's compliance with
NEPA and other environmental planning requirements.
(1) The Secretary has the following objectives for the NEPA
process:
(i) Efficient, timely, and effective NEPA planning;
(ii) Maintenance of sufficient resources to meet the goals of
timely, effective, and high-quality NEPA analyses;
(iii) Full compliance with all environmental laws, regulations, and
Executive orders; and
(iv) Consistency with other VA mission objectives, including
service to veterans, fiscal responsibility, and national security.
(2) The Secretary will:
(i) Consider the environmental effects of his/her decisions;
(ii) Plan, program, and budget for the requirements of this part;
(iii) Fully integrate the requirements of this part into planning
and decision-making for all policies, programs, activities, and
operations of VA; and
(iv) Delegate the authority to the Under Secretaries, Assistant
Secretaries, and Directors of Staff Offices to implement the
requirements of this part, including designation of the NEPA
Implementation Officer; delegation of the authority to review NEPA
analyses for technical adequacy and to sign NEPA decision documents
based on technical adequacy; and delegation of overall agency NEPA
compliance to the Senior Agency Official, who VA will specify in an
agency-wide directive on NEPA roles and responsibilities. The Senior
Agency Official is an individual with assistant secretary rank or
higher and is typically within the Office of Acquisition, Logistics,
and Construction.
(d) Under Secretaries, Assistant Secretaries, and Directors of
Staff Offices. The Under Secretaries, Assistant Secretaries, and
Directors of Staff Offices or their delegate will:
(1) Assess environmental and historic preservation consequences of
proposed, new, and on-going programs within their respective
organizational units; and
[[Page 36057]]
(2) Delegate to points of contact within their organizations as
needed to support NEPA compliance.
(e) Decision-makers. VA decision-makers may include but are not
limited to Under Secretaries; medical center and cemetery
administration directors; and regional medical, benefits, and cemetery
administration directors. VA decision-makers will:
(1) Integrate environmental and historic preservation
considerations into their decision-making prior to taking action; and
(2) Sign decision documents, as specified in an agency-wide
directive on NEPA roles and responsibilities.
(f) NEPA Implementation Officer. The NEPA Implementation Officer is
designated by the Secretary or the Secretary's designee, and has the
authority to implement the Secretary's objectives for the NEPA process.
The NEPA Implementation Officer has the requisite expertise and
experience with NEPA to manage implementation of NEPA throughout VA.
Typically, the NEPA Implementation Officer is a director within the
Office of Construction & Facilities Management; VA will specify the
location of this function in an agency-wide directive on NEPA roles and
responsibilities.
(1) Support VA's compliance with NEPA and other environmental
planning requirements;
(2) Provide technical expertise and guidance for proposed plans,
programs, and activities throughout VA;
(3) Inform key environmental staff and Under Secretaries, the
Senior Agency Official, Assistant Secretaries, and Directors of Staff
Offices about the methods and status of NEPA implementation throughout
VA programs and offices;
(4) Advise proponents, decision-makers, and procurement officials
on the status and requirements for the NEPA analysis of VA actions;
(5) Develop and provide, as needed, supplemental guidance and
training to enable the effective implementation of this part and other
environmental planning requirements across all VA elements;
(6) Promote early outreach and solicitation of environmental
information for NEPA analysis;
(7) Coordinate requests for cooperating agency status and joint
lead agency status and coordinate with State, local, and Tribal
agencies as needed with respect to completion of the NEPA process;
(8) Liaise with the Advisory Council on Historic Preservation, the
Environmental Protection Agency, and other Federal agencies as needed
to satisfy coordination requirements and implement the NEPA process;
(9) Promote the involvement of the public and other non-Federal
entities in the NEPA analysis of VA actions with respect to completion
of the NEPA process;
(10) Identify discretionary activities within VA and ensure that VA
fully integrates the requirements of this part into the planning and
implementation of those activities;
(11) Sign records of decision (RODs) for environmental technical
adequacy;
(12) Review and approve requests from NEPA Specialists to adopt
other agencies' CATEXs in accordance with Sec. 26.31 or rely on NEPA
documents from other Federal agencies in accordance with Sec. 26.71;
(13) Work with the Senior Agency Official, Under Secretaries,
Assistant Secretaries, and Directors of Staff Offices to accomplish the
VA mission in harmony with environmental stewardship by:
(i) Ensuring the NEPA process is complete before VA makes a
decision or takes an action concerning the proposal that has an adverse
environmental effect or limits the choice of reasonable alternatives;
(ii) Ensuring VA elements are aware of mitigation commitments to
address the potential environmental effects of VA programs, projects,
and plans; and
(iii) Monitoring the NEPA process to ensure compliance with timing,
page limit, scoping, consultation, circulation, and public engagement
requirements; and
(14) Delegating authority to sign NEPA documents to NEPA
Specialists as appropriate.
(g) Proponent. Proponents are those VA staff in project or
functional management positions in a facility or component organization
within the Veterans Health Administration, National Cemetery
Administration, Veterans Benefits Administration, or a VA program
office. Proponents do not include applicants, non-Federal entities, or
entities located organizationally outside of the VA element that is
responsible for implementing the project. The proponent will:
(1) Consult with a NEPA Specialist or the NEPA Implementation
Officer at the beginning of the planning and feasibility stage of any
proposed action and before involving the public;
(2) Ensure the budget for a proposed VA action is adequate to
comply with applicable environmental and historic preservation laws;
(3) Ensure the schedule for the proposed VA action includes
sufficient time for compliance with relevant environmental and historic
preservation laws, including NEPA and the National Historic
Preservation Act (NHPA);
(4) Initiate and coordinate with the appropriate environmental
support to conduct the NEPA analysis prior to undertaking an action;
(5) Review and consider NEPA analyses before making a decision that
has environmental or historic preservation effects or limits the
choices of alternatives for a VA action; and
(6) Consider mitigation measures and ensure VA requires and
provides for mitigation tasks and monitoring.
(h) NEPA Specialists. NEPA Specialists act as the technical
specialists in VA for matters relating to the NEPA process and help to
ensure its functional integration into the VA mission. NEPA Specialists
support the NEPA Implementation Officer with advice and assistance for
implementing NEPA in their respective offices and programs. NEPA
Specialists may include but are not limited to facility environmental
managers, national and regional environmental staff, and other staff
specialists throughout VA. NEPA Specialists will:
(1) Act to support and ensure compliance with the requirements of
NEPA, this part, applicable Executive orders, and other environmental
and historic preservation requirements in conjunction with the
proponent;
(2) Provide technical advice on the NEPA process to proponents,
decision-makers, the NEPA Implementation Officer, and Under
Secretaries, Assistant Secretaries, and Directors of Staff Offices; and
(3) Sign decision documents for technical adequacy, with the
project decision itself documented by the approval signature on each
decision document as specified throughout this section and in an
agency-wide directive on NEPA roles and responsibilities.
(i) Procurement Officials. The Procurement Officials will
expeditiously support and execute contract actions to support
completion of NEPA analyses within required timeframes.
(j) Office of General Counsel. The Office of General Counsel will:
(1) Advise VA, in consultation with the NEPA Implementation
Officer, on whether a proposed action is subject to the procedural
requirements of NEPA, NHPA, the Endangered Species Act (16 U.S.C. 1531-
1544), or other environmental or historic preservation laws, Executive
orders, and regulations;
(2) Advise VA on compliance with environmental and historic
preservation laws, regulations, applicable Executive
[[Page 36058]]
orders, and other planning requirements;
(3) Assist in establishing or revising VA's NEPA procedures and
guidance documents, including appropriate CATEXs; and
(4) Provide VA with legal sufficiency reviews on environmental and
historic preservation analyses, programmatic agreements, interagency
agreements, consultations with other Federal agencies, and general
legal advice as needed.
(k) Federal Preservation Officer. The Federal Preservation Officer
will:
(1) Act as the single point of contact for all matters in VA
related to stewardship of historic properties and cultural resources;
(2) Inform Under Secretaries, Assistant Secretaries, Directors of
Staff Offices, and key environmental and historic preservation staff of
current developments in historic preservation policy and programs;
(3) Provide guidance to VA project proponents and advise as needed
in consultations with Tribes, Native Hawaiian organizations, and State
Historic Preservation Officers; and
(4) Determine which personnel, VA staff, or contractors are
qualified to meet the requirements of section 112 of the NHPA (54
U.S.C. 306131) and work on historic resources issues.
(l) Senior Agency Official. The Senior Agency Official is an
individual with assistant secretary rank or higher. The Senior Agency
Official is typically within the Office of Acquisition, Logistics, and
Construction, and will be specified in an agency-wide directive on NEPA
roles and responsibilities. The Senior Agency Official will:
(1) Act as the designee for oversight over VA NEPA compliance;
(2) Promote timely NEPA analysis;
(3) Review and approve requests for VA to serve as the lead agency
for joint Federal NEPA actions, where VA and one or more Federal
agencies are cooperating on a project;
(4) Resolve implementation issues; and
(5) Delegate authority for these responsibilities as appropriate.
Sec. 26.14 Environmental practices.
(a) Efficiency. VA seeks out opportunities to avoid duplication and
delay in the approval of VA actions by integrating the NEPA process
into the VA decision-making process as early as possible. For this
reason, VA promotes an agency-wide system of NEPA analysis in this part
for quality assessment of environmental effects.
(b) Capability. VA will maintain the staff and resources necessary
to comply with the requirements of this part. VA may use a contractor
or other third party to meet the requirements of NEPA and the
procedures in this part, provided VA retains sufficient resources to
evaluate the work of those non-VA entities.
(c) Similar actions. VA will analyze similar actions the same way
regardless of the proponent or funding source.
(d) Combining NEPA with other environmental and historic
preservation requirements. VA encourages all VA elements to integrate
the effects analyses required by other Federal and State environmental
laws into the NEPA process to the maximum extent practicable. Through
integration into one decision-making process, VA improves the quality
of analysis of environmental effects, reduces project delays, and
enhances the scoping process for discovering relevant environmental
issues.
(1) Environmental laws. VA will integrate evaluation required by
other environmental laws into the NEPA process, including but not
limited to section 106 of the NHPA (54 U.S.C. 306108), section 7 of the
Endangered Species Act (16 U.S.C. 1536), and section 404 of the Clean
Water Act (33 U.S.C. 1344). VA achieves meaningful integration by
synchronizing the timing of reviews under separate laws, removing
duplication for requirements such as public comment periods when
allowable, and ensuring that the NEPA analysis includes a discussion of
the applicable laws and results of any consultation or analysis. VA may
also use NEPA as a substitute for section 106 of the NHPA (54 U.S.C.
306108), as allowable under 36 CFR 800.8(c), when the stipulated
requirements are met.
(2) Timing. VA will integrate other environmental laws into the
NEPA process as early as possible. Each environmental law has its own
timing requirements. Where VA can initiate or conduct consultations and
permits during the NEPA (planning) phase for a project, VA may
integrate them into the NEPA review.
(3) Responsibility. The NEPA Specialist and proponent are
responsible for early integration of other environmental laws. The NEPA
Specialist advises on the environmental laws applicable to the action.
(4) Documentation. VA will integrate documentation of compliance
with other environmental requirements into the NEPA process and include
this documentation in the documentation created during the NEPA
analysis.
(5) Executive orders. VA will integrate compliance with Executive
orders related to environmental issues into the NEPA process. VA
recognizes its duty to promote the policies set forth in Executive
orders that address environmental issues evaluated in NEPA documents,
including but not limited to environmental designations such as
floodplains, environmental quality, and resource protection.
(e) Programmatic NEPA documents. VA prepares programmatic NEPA
documents to analyze all or some of the environmental effects of a
policy, program, plan, or group of related actions. VA can use
programmatic NEPA documents as stand-alone documents when sufficient
information is available to evaluate all potential effects or when VA
anticipates subsequent analysis for specific projects once additional
information is available. A programmatic NEPA document pre-positions
environmental information for VA decision-makers to expedite the
approval process of a VA action and eliminates repetitive discussions
of the same issues. See Sec. 26.70 for VA requirements for a
programmatic NEPA analysis.
(f) Connected actions. VA will address connected actions in a
single NEPA document.
Subpart B--NEPA Process for VA Actions
Sec. 26.20 Purpose of this subpart.
This subpart outlines the requirements and process for NEPA
compliance to inform VA decision-making. Section 26.21 provides context
by explaining how VA will integrate NEPA with VA planning. Remaining
Sec. Sec. 26.22 through 26.73 lay out NEPA analysis options and NEPA
implementation methods specific to those options.
Sec. 26.21 Integrating NEPA with VA planning.
(a) General. (1) Integration of the NEPA process with VA project
and program planning will occur at the earliest relevant stage in the
project life cycle to ensure that:
(i) VA minimizes delays and potential conflicts in the NEPA
process;
(ii) VA decisions incorporate the environmental values and policies
reflected in this part; and
(iii) VA takes no action concerning the proposal that would have an
adverse environmental effect or limit the choice of reasonable
alternatives until VA issues a ROD or finding of no significant impact
(FONSI), or makes a CATEX determination. If VA is considering an
application from a non-Federal entity and becomes aware that the
applicant is about to take an action within VA's jurisdiction that
would meet either of
[[Page 36059]]
the criteria that would have an adverse environmental effect or limit
the choice of reasonable alternatives, VA will promptly notify the
applicant that VA will take appropriate action to ensure that VA
achieves the objectives and procedures of NEPA. This section does not
preclude development by applicants of plans or designs or performance
of other activities necessary to support an application for Federal,
State, Tribal, or local permits or assistance. When considering a
proposed action for Federal funding, VA may authorize such activities,
including, but not limited to, acquisition of interests in land (for
example, fee simple, rights-of-way, and conservation easements),
purchase of long lead-time equipment, and purchase options made by
applicants.
(2) Relevant NEPA documents, comments, and responses will accompany
other decision documents through the decision-making process.
(b) Acquisition. VA will integrate the NEPA process and schedule
with the acquisition and procurement process such that:
(1) Consideration of NEPA and planning for NEPA compliance begins
as soon as VA identifies the need to acquire real property or materials
that VA would use in implementing a major Federal action;
(2) Planning and budgeting activities include gathering data to
identify relevant environmental issues and alternatives through the
NEPA scoping process; and
(3) VA prepares the appropriate NEPA documents based on the
entirety of the proposed action, including VA's proposed development
and use of real property or materials.
(c) Construction projects--(1) Design/build. VA must align
contracting decisions for design and construction with VA construction
standards and requirements. VA will ensure the NEPA process is
completed for all design/build actions before initiating construction
or irretrievably committing resources to a construction project.
Design/build actions are those actions in which VA hires one contractor
to complete the design and construct the project, often shortening the
time for contract completion.
(i) To prevent taking actions concerning the proposal that would
have an adverse environmental effect or limit the choice of reasonable
alternatives prior to completion of the NEPA process, VA will:
(A) Ensure that reasonable alternatives are not eliminated before
the NEPA process is complete;
(B) Ensure the NEPA process is underway and advanced as far as
possible given the available data prior to award of the design/build
contract;
(C) Ensure the NEPA process is complete (as evidenced by signed
CATEX determination, signed FONSI, or signed ROD) prior to initiation
of on-site construction including site clearing or demolition; and
(D) Include language in design/build contracts that duly notes the
project may not proceed until the NEPA process is completed (as
evidenced by signed CATEX, signed FONSI, or signed ROD).
(ii) To facilitate the design/build process, VA may:
(A) Issue a request for quotations or request for proposals prior
to completion of NEPA, so long as the request for quotations or request
for proposals informs proposers of the status of the NEPA process and
makes no commitment as to any alternative under consideration including
any no action alternative;
(B) Conduct preliminary design work; and
(C) Support coordination with regulatory agencies under NHPA or
other environmental laws.
(2) Design/bid/build. VA will ensure compliance with the NEPA
process for design/bid/build projects. For design/bid/build projects,
VA has separate contracts for the design versus construction of a
project. To ensure compliance with NEPA, VA will:
(i) Ensure design and construction contractors align design and
construction activities with VA construction standards and
requirements; and
(ii) Not irretrievably commit resources to construction prior to
completion of the NEPA analysis of all reasonable alternatives.
(3) Mitigation and monitoring. VA will ensure construction
contractors follow any mitigation and monitoring measures committed to
during the NEPA process. While NEPA requires consideration of
mitigation, it does not mandate the form or adoption of any mitigation.
Sec. 26.22 Determining the appropriate level of NEPA review.
(a) If VA determines under Sec. 26.11 that NEPA applies to a
proposed activity or decision, VA will then determine the appropriate
level of NEPA review in the following sequence and manner. At all steps
in the following process, VA will consider the proposed action or
project at hand and its effects.
(1) If VA has established, or adopted pursuant to section 109 of
NEPA (42 U.S.C. 4336c), a CATEX that covers the proposed action, VA
will analyze whether to apply the CATEX to the proposed action and
apply the CATEX, if appropriate, pursuant to Sec. 26.30.
(2) If another agency has already established a CATEX that covers
the proposed action, VA will consider whether to adopt that CATEX
pursuant to Sec. 26.31 so that it can be applied to the proposed
action at issue, and to future activities or decisions of that type.
(3) If the proposed action warrants the establishment of a new
CATEX, or the revision of an existing CATEX, pursuant to Sec.
26.30(d), VA will consider whether to so establish or revise, and then
apply the CATEX to the proposed action pursuant to Sec. 26.30(d).
(4) If VA cannot apply a CATEX to the proposed action consistent
with paragraphs (a)(1) through (3) of this section, VA will consider
the proposed action's reasonably foreseeable effects consistent with
paragraph (b) of this section, and then will:
(i) If the proposed action is not likely to have reasonably
foreseeable significant effects or the significance of the effects is
unknown, develop an environmental assessment (EA), as described in
Sec. 26.40; or
(ii) If the proposed action is likely to have reasonably
foreseeable significant effects, develop an environmental impact
statement (EIS), as described in Sec. 26.41.
(b) When considering whether the reasonably foreseeable effects of
the proposed action are significant, VA will analyze the potentially
affected environment and degree of the effects of the action. VA may
use any reliable data source and will not undertake new research unless
it is essential to evaluating alternatives and the cost and time of
obtaining it are not unreasonable.
(1) In considering the potentially affected environment, VA may
consider, as appropriate to the specific action, the affected area
(national, regional, or local) and its resources.
(2) In considering the degree of the effects, VA may consider the
following, as appropriate to the specific action:
(i) Both short- and long-term effects.
(ii) Both beneficial and adverse effects.
(iii) Effects on public health and safety.
(iv) Economic effects.
(v) Effects on the quality of life of the American people.
Sec. 26.30 Categorical exclusions.
(a) Documentation and procedures--(1) Project description. For
CATEXs that require documentation for each proposed action, the
proponent or applicant must include the location of the project, the
project number (if
[[Page 36060]]
known), and a project description in a CATEX document. The project
description is a brief statement of the project or activities proposed
to occur, the existing environment at the project site, and any
mitigation incorporated into the project to ensure there are no
extraordinary circumstances that would prevent the application of the
CATEX. If any unusual activities or potential extraordinary
circumstances exist, then the description must disclose that
information and whether these circumstances prevent the application of
the CATEX. Where extraordinary circumstances are present, the agency
should consider whether the application of the CATEX is still
appropriate notwithstanding the presence of extraordinary circumstances
because, even with the extraordinary circumstance, the proposed action
does not have the potential to result in significant impacts. The mere
presence of an extraordinary circumstance does not prevent the
application of the CATEX.
(2) CATEX being applied. The CATEX document, if Sec. 26.32
requires one, must identify the specific CATEX or CATEXs from Sec.
26.32 for which the NEPA Specialist determines the proposed action is
eligible.
(3) Level of analysis. The NEPA Specialist must indicate, and the
approval authority consistent with VA policy or directive must approve,
in a CATEX document, if one is required, that no EA or EIS is required
and affirmatively state the intent to categorically exclude the
proposed action.
(4) Integration of other laws. VA will integrate other
environmental compliance requirements including NHPA into the NEPA
process for CATEX actions. If the review of a CATEX action results in a
determination that the proposed action complies with other
environmental requirements and the proposed action, as mitigated if
necessary, avoids significant impacts to those resources, then no
further NEPA analysis is required under this part and VA will document
this determination when required. If the level of effects related to
other environmental compliance requirements is unclear, VA will
determine whether to proceed to an EA or EIS.
(5) Determination. VA must make the determination of whether to
issue a CATEX or proceed to an EA or EIS. If Sec. 26.32 requires a
CATEX document for a proposed action, a NEPA Specialist and decision-
maker sign it to confirm the determination in the CATEX. The annotation
``CXdoc'' for certain CATEXs listed in Sec. 26.32 identifies those
that require a CATEX document for each proposed action.
(6) Documenting the decision to use a CATEX. When using a CATEX
that requires documentation of each proposed action, VA will document
the use of a CATEX prior to making a decision on the proposed action.
The CATEX document will provide the information required in paragraphs
(a)(1) through (3) of this section and be conducted in accordance with
the requirements in paragraphs (a)(4) and (5) of this section.
(b) Extraordinary circumstances review. Examples of extraordinary
circumstances include whether the action:
(1) Introduces and/or uses technology with unknown environmental
impacts;
(2) Has a reasonable likelihood of violating any Federal, State, or
local law or requirement imposed for the protection of the environment;
(3) Has an effect that has not been satisfactorily resolved through
another applicable environmental review or consultation process such as
Coastal Zone Management Act (16 U.S.C. 1451-1466) consistency, NHPA
section 106 (54 U.S.C. 306108) consultation, Endangered Species Act
section 7 (16 U.S.C. 1536) consultation, or issuance of a relevant
permit;
(4) Involves effects on the environment that are highly uncertain,
or involve unique or unknown risks; or
(5) Establishes a precedent (or makes decisions in principle) for
future or subsequent actions that are reasonably likely to have a
future significant effect.
(c) Public notice. In certain situations, VA may choose to publish
a CATEX document. These situations may include, but are not limited to,
proposed actions that are of national focus or otherwise involve
special issues that would make the proposed action of particular
interest to the public. VA may publish a CATEX document on its website,
in local newspapers, or in any other manner to reach the interested
public.
(d) VA review of list of categorical exclusions. (1) VA may
periodically review the list of CATEXs published in Sec. 26.32 for
continued relevance to VA programs and missions, additional experience
on implementing actions that do not generate significant impacts, and
improvements in clarity and appropriate limiting factors where needed.
This review may conclude with recommendations to add, delete, or revise
one or more CATEXs or to add or delete the requirement for project-
specific documentation for application of a specific CATEX.
(2) VA may also consider revisions to the CATEX list when
substantial changes or additions to VA plans, programs, or activities
occur such that the current CATEX list may be inadequate or inaccurate
given the current scope of VA activities. Potential triggers for
revising the VA CATEX list may include:
(i) VA determines a class of actions are not expected to have
significant environmental effects;
(ii) VA performs NEPA reviews of a class of actions and determines
that, when implemented, the actions resulted in no significant
environmental impacts;
(iii) Mission changes occur within the VA organization; or
(iv) VA acquires new responsibilities through legislation or
administrative restructuring.
(3) To establish or revise a CATEX, VA will determine that the
category of actions normally does not significantly affect the quality
of the human environment. In making this determination, VA will:
(i) Develop a written record containing information to substantiate
its determination;
(ii) Consult with CEQ on its proposed CATEX, including the written
record, for a period not to exceed 30 days prior to providing public
notice as described in paragraph (d)(3)(iii) of this section; and
(iii) Provide public notice in the Federal Register of VA's
establishment or revisions of the CATEX and the location (for example,
website) of availability of the written record.
Sec. 26.31 Adoption and application of CATEXs from another agency's
NEPA procedures.
(a) VA may adopt and then apply CATEXs listed in another agency's
NEPA procedures after consulting with the other agency when:
(1) VA has determined that it proposes to undertake actions for
which another agency has listed a CATEX in its final NEPA procedures;
and
(2) VA finds through consultation with the other agency that the
adoption and application of the other agency's CATEX to a specific VA
action or category of actions is appropriate.
(b) VA shall document the results of the consultation with the
other agency including:
(1) How the adoption and application of the CATEX is appropriate
for the VA actions;
(2) Whether the other agency identified any limiting factors or
extraordinary circumstances specific to the CATEX;
[[Page 36061]]
(3) The extraordinary circumstances VA will consider in applying
the CATEX; and
(4) Whether each application of the CATEX requires project-specific
documentation.
(c) This documentation may take the form of a VA memorandum with
attached concurrence of appropriate application of the CATEX to the VA
activity from the other agency and VA must publish it on the VA
website.
(d) When applying a CATEX adopted from another agency's NEPA
procedures to a VA project, VA shall not use another agency's CATEX if
there are extraordinary circumstances that would prevent the
application of the CATEX.
Sec. 26.32 List of VA categorical exclusions.
(a) The following classes of major Federal actions, which VA has
determined normally do not significantly affect the quality of the
human environment, may be categorically excluded from further NEPA
analysis. The actions in this section followed by the parenthetic
notation ``(CXdoc)'' require preparation of a CATEX document for each
action, in accordance with Sec. 26.30.
(1) VA-wide operations--(i) CATEX 1: Field exercises and training.
Training with field exercises (such as for medical, police, fire, and
emergency management personnel) for emergency preparedness that
substantially conforms to the use of the space where the training is
proposed or does not otherwise impact the proposed training area (no
ground disturbance or adverse effects to air, water, historic
resources, or wildlife habitat).
(ii) CATEX 2: Field studies and surveys. Site characterization
studies and environmental monitoring, including siting, erecting,
operating, and dismantling or closing of characterization and
monitoring devices, in compliance with applicable environmental and
historic preservation requirements. Such activities include, but are
not limited to:
(A) Site characterization and environmental monitoring activities;
(B) Feasibility studies;
(C) Geological, geophysical, geochemical, and engineering surveys,
including the establishment of survey marks;
(D) Installation and operation of ambient air monitoring equipment;
(E) Sampling and characterization of surface and ground waters,
soils, rocks, spills, or contaminants;
(F) Sampling and characterization of water effluents, air
emissions, or solid waste streams;
(G) Sampling of flora or fauna; and
(H) Historic property identification and evaluation studies.
(iii) CATEX 3: Special events, ceremonies, and related activities.
Hosting of special events or short-term ceremonies, including erection
of temporary shelters or other structures to be used for the event or
ceremony at VA cemeteries, medical centers, or ancillary facilities,
including but not limited to Federal holiday events. The event must not
exceed applicable noise ordinances or site capacity. The associated
structures must be used only for the purposes of the event or ceremony
and the duration of such structures must not substantially exceed the
duration of the event.
(iv) CATEX 4: Waste management. Routine waste management, including
transportation, collection, storage, treatment, removal, and
disposition activities for solid waste, medical waste, special hazards
(for example, asbestos, polychlorinated biphenyls, lead-based paint),
and hazardous waste that comply with existing Federal, State, and local
laws and regulations. This CATEX is not applicable to new construction
of facilities for such management purposes.
(v) CATEX 5: Transportation. Routine transportation of veterans, VA
employees, and/or other eligible persons and supplies for medical care,
administrative, or other mission-related purposes using existing roads
and vehicles.
(2) Housing operations--(i) CATEX 6: Provision of housing.
Provision of VA housing services to veterans, VA employees, or other
eligible persons in existing structures on property with substantially
completed infrastructure when the placement does not exceed the
capacity of existing transportation, waste, energy, or water
infrastructure.
(ii) [Reserved]
(3) Acquisition or disposition of land, buildings, or space--(i)
CATEX 7: Acquisition of space within an existing structure (CXdoc). VA
acquisition of space within an existing structure where there is no
change in the general type of use and no more than a 20 percent
increase in maximum occupancy level is proposed (previous occupant need
not have been a Federal tenant). This also includes lease extensions,
renewals, or succeeding leases for VA-occupied space provided the
continued use(s) are the same as those contained in the original lease.
(ii) CATEX 8: Acquisition of land and/or buildings (CXdoc). VA
acquisition of land and/or buildings in the following circumstances:
(A) Acquisition of land where there is no near-term (within
approximately five years) proposed change in the general type of use;
where, if the land is previously undisturbed, it will remain
undisturbed for the near term; or where the continued use will not
create significant impacts to the surrounding environment; or
(B) If there are structures or buildings on the land, the
acquisition will not increase the previous maximum occupancy level by
more than 20 percent (previous occupant need not have been a Federal
tenant), although demolition in compliance with environmental and
historic preservation requirements may occur.
(iii) CATEX 9: Out-leases to third party tenants (CXdoc). Out-
leases to third party tenants of buildings and/or land, where there is
no change in the general type of use and no more than a 20 percent
increase in the previous maximum occupancy level is proposed, where the
out-lease and use by third party tenants will comply with applicable
environmental and historic preservation requirements.
(iv) CATEX 10: Agreements for use of VA-owned space (CXdoc).
Agreements (for example, permits or licenses) for use of VA-owned space
with other Federal or State agencies or entities for sharing of space
and resources consistent with their previous use by either agency or
entity. This includes agreement extensions, renewals, or succeeding
permits or licenses provided the continued use(s) are the same as those
contained in the original permit or license to other agencies or
entities on VA land.
(v) CATEX 11: Disposal of real property (CXdoc). Disposal of real
property to another Federal, State, or local agency; Tribe; private
entity; or non-profit group, including demolition and site restoration,
that conforms to the requirements of the General Services
Administration Real Property Utilization and Disposal Resource Guide or
subsequent similar guidance and where the reasonably foreseeable
subsequent use is of similar intensity to VA's use and meets the
requirements of all applicable environmental and historic preservation
laws and guidance.
(4) Services and procurement--(i) CATEX 12: Medical-related
services. Provision of medical care to veterans or other eligible
persons including but not limited to medical diagnostic, treatment, and
care services; distribution (and return) of pharmaceuticals,
prosthetics, home oxygen, and other medical supplies; and provision of
home healthcare services in support of normal day-to-day activities for
provision of medical care.
[[Page 36062]]
(ii) CATEX 13: Research. Research activities conducted within an
existing laboratory or other contained facility where all applicable
safety and environmental requirements are met. May include use and
disposition of radionuclides or hazardous or biological materials for
research purposes that comply with VA master materials license
requirements and any other applicable environmental and health and
safety requirements.
(iii) CATEX 14: Laundry and food services. Laundry and food
services operations from existing facilities conducted on-site at VA
medical centers or ancillary VA facilities in compliance with
applicable environmental, historic, and health and safety requirements.
(iv) CATEX 15: Procurement, lease, transport, storage, and
disposition of supplies, materials, and equipment. Procurement and/or
lease, transport, storage, and disposition of materials, supplies, and
equipment related to medical treatment, diagnostic support, or
research; cemetery operations; and other agency functions. Materials,
supplies, and equipment must comply with applicable Federal, State, and
local requirements and be purchased in accordance with applicable
Federal procurement policies and VA procurement requirements.
(5) Cemetery Operations--(i) CATEX 16: Interment ceremony services.
Interment ceremony services including but not limited to the committal
service, motorcade, burial, and rendering of military honors.
(ii) CATEX 17: Soil excavation and replacement for interments. Soil
excavation and replacement for access to pre-placed crypts for
interment and for direct burials in designated interment areas in
compliance with applicable environmental and historic preservation
requirements.
(iii) CATEX 18: Cemetery land development (CXdoc). Expansion of
cemeteries where the expansion is limited to the construction and
development of one or more new crypt fields or columbaria within the
boundaries of an existing cemetery, and in compliance with applicable
environmental and historic preservation requirements.
(6) Electronics--(i) CATEX 19: Communication systems (CXdoc for
ground-disturbing actions only). Procurement, installation, operation,
modification, removal, or disposal of communication systems, computers,
data processing equipment, fiber optic cables, alarm systems, wiring,
antennae, and other communications equipment in accordance with
applicable Federal, State, and local requirements. Includes installing
or modifying communications equipment by VA, a vendor, or
telecommunications provider within or on existing structures, erecting
free-standing antennae, and constructing buildings or additions.
(ii) [Reserved]
(7) New construction and related activities--(i) CATEX 20: New
construction (CXdoc). New construction in either of the following
circumstances:
(A) Construction on existing VA property with substantially
developed infrastructure, in developed or undeveloped areas of the
property, the use or operation of which, when completed, is consistent
with existing VA use of the overall property, does not change the
function of the facility or modify VA's intended land use, and does not
exceed the capacity of existing transportation, waste, energy, or water
infrastructure serving the property. These activities include but are
not limited to new structures or additions to existing buildings that
comply with applicable environmental and historic preservation
requirements; associated utility extensions and connections; and
installation, use, and removal of facilities such as construction
trailers and use of materials laydown areas during the construction
process; or
(B) Acquisition of property and subsequent construction, with
construction that does not exceed a total building footprint of 75,000
square feet including by build-to-suit lease, and/or 20 acres of
interment space installation to be associated with an existing
cemetery, and may include installation, use, and removal of facilities
such as construction trailers and use of materials laydown areas during
the construction process; where use will not exceed the capacity of
existing transportation, waste, energy, or water infrastructure serving
the property; and construction and use will comply with applicable
Federal, State, and local environmental and historic preservation laws,
regulations, and ordinances.
(ii) CATEX 21: Interior renovation. Interior renovation,
alteration, restoration, or rehabilitation projects that do not
adversely affect properties listed on or eligible for the National
Register of Historic Places and are done in accordance with applicable
environmental and historic preservation requirements.
(iii) CATEX 22: Installing new or replacing or relocating onsite
existing building components, site elements, utilities, and equipment
(CXdoc). Installing, replacing, retrofitting, upgrading, or relocating
onsite in a manner that substantially conforms to the pre-existing
design, function, and location and complies with applicable
environmental and historic preservation requirements. These activities
include but are not limited to:
(A) Installation or replacement of building components such as
windows, doors, roofs, HVAC equipment, or electrical distribution
system components in existing facilities;
(B) Installation or replacement of VA facility site elements such
as sidewalks, patios, fences, sheds, retaining walls, curbs, parking
lots, trails, memorials, fountains, benches, roads, garages, drainage
structures, signs, and entrance features;
(C) Installation or replacement of site utilities whether by VA or
a third party, such as water distribution lines and storage, storm or
sanitary sewer lines, system generators, tanks for heating systems and/
or generators, or primary or secondary electrical or communications
lines, steam lines, and holding ponds, where the action does not exceed
the site or system's capacity and including granting easements to
utility companies to conduct these activities on VA property;
(D) Installation or replacement of equipment to support vehicular
maintenance and operation (such as fuel storage, repair equipment);
(E) Installation or replacement of headstones, grave markers,
statues, and monuments in existing VA cemeteries so long as the
activity does not negatively affect the historic integrity or national
shrine cemetery characteristics and is to a site that has been
previously disturbed and can reasonably accommodate the activity; and
(F) Relocation of statues and monuments in existing VA cemeteries
so long as the activity does not negatively affect historic integrity
or national shrine cemetery characteristics and is to a site that has
been previously disturbed and can reasonably accommodate the activity.
(iv) CATEX 23: Repair, renovation, and maintenance. Repair,
renovation, maintenance, grounds-keeping, and custodial activities at
VA facilities provided that the activities conform to pre-existing
design and are performed in accordance with applicable environmental
and historic preservation requirements such as those governing the use
of toxic or hazardous materials. These activities include but are not
limited to:
(A) Repair, renovation, and maintenance of building components such
as windows, doors, roofs, HVAC equipment, and electrical distribution
system components in existing facilities;
(B) Repair, renovation, and maintenance of VA facility site
elements
[[Page 36063]]
such as sidewalks, patios, fences, sheds, retaining walls, curbs,
parking lots, trails, memorials, fountains, and benches;
(C) Repair, renovation, and maintenance of site utilities such as
water distribution lines and storage (including water towers), storage
tanks, storm or sanitary sewer lines, primary or secondary electrical
or communications lines, steam lines, and holding ponds where the
action is in accordance with applicable regulations and does not exceed
the site or system's capacity, including granting easements to utility
companies for conducting these actions on VA property;
(D) Repair, renovation, and maintenance activities for property
site elements such as roads, garages, drainage structures, signs, and
entrance features;
(E) Interior and exterior facility maintenance, renovation, and
custodial actions to preserve facility appearance, working conditions,
and sanitation, and maintain and preserve buildings, structures,
infrastructures, and equipment in a condition suitable for a facility
to be used for its designed purpose such as pest management measures,
window washing, surface coatings, paint, street sweeping, trash
collecting, and snow removal that do not adversely impact wildlife
habitat or historic resources; and safety, environmental, and historic
preservation requirements are met;
(F) Grounds repairs, renovation, and maintenance activities
including but not limited to use of irrigation systems where there is
sufficient available water to do so; mowing and trimming of vegetation;
and application of fertilizers, pesticides, and herbicides;
(G) Repair, renovation, and maintenance of VA equipment and other
similar assets that are not attached to a structure; and
(H) Repair, maintenance, and treatment of headstones, grave
markers, columbaria, statues, monuments, and flagpoles in existing VA
cemeteries so long as the activities do not negatively affect the
historic integrity or national shrine cemetery characteristics.
(v) CATEX 24: Demolition (CXdoc). Actions involving partial or
complete demolition of non-historic structures or historic structures
in accordance with applicable environmental and historic preservation
requirements including but not limited to parking structures, medical
center buildings, and unused buildings.
(vi) CATEX 25: Environmental remediation and abatement. Actions
undertaken in accordance with applicable environmental and historic
preservation requirements for remediating contamination of soil, water,
air, biota, structures, or other environmental components and
associated disposal; waste remediation or disposal; or abatement,
containment, or removal and disposal of asbestos-containing material or
lead-based paint from VA-owned, leased, or operated facilities.
(8) Energy--(i) CATEX 26: Solar and wind energy (CXdoc).
Installation, modification, operation, and removal on property owned or
leased by VA of solar photovoltaic systems and wind turbines mounted on
existing non-historic buildings or structures (for example, buildings,
carports) or, if located on land, generally comprising less than 10
acres, in accordance with all applicable environmental and historic
preservation requirements. For wind turbines, total height would be
generally less than 200 feet (measured from ground to maximum height of
blade rotation) and would comply with Federal Aviation Administration,
National Weather Service, and U.S. Fish and Wildlife Service siting and
design requirements and guidelines.
(ii) CATEX 27: Retro commissioning. Retro commissioning or re-
commissioning of existing structures in accordance with applicable
environmental and historic preservation requirements.
(iii) CATEX 28: Conservation and energy efficiency measures (CXdoc
for certain project types). Actions to conserve water or energy,
demonstrate potential water or energy conservation, or promote energy
efficiency improvements that do not exceed capacity of system
components or have the potential to change concentrations of
potentially harmful substances including but not limited to:
(A) Upgrading equipment and systems with more efficient components,
green-roof retrofits, weatherization, timers on hot water heaters,
energy efficient lighting, low-flow plumbing fixtures, drip-irrigation
systems, and efficiency rating improvements for facilities or vehicles;
(B) Ground source heat pump and combined heat and power systems
(CXdoc);
(C) Beneficial landscaping;
(D) Power storage (CXdoc); and
(E) Small-scale research and development for energy efficiency and
conservation (CXdoc).
(b) VA may amend this list of CATEXs by following the procedure
described in Sec. 26.30(d).
Sec. 26.40 Requirements for EAs.
(a) Purpose and need. VA will briefly discuss the purpose and need
for the proposed action based on VA's statutory authority. When the
proposed action concerns VA's duty to act on an application for
authorization, the purpose and need for the proposed action will also
be informed by the goals of the applicant.
(b) Proposed action. The proponent will identify a proposed action.
The proposed action could be a plan, program, policy, or a specific
project. VA may incorporate avoidance or mitigation measures into the
proposed action to minimize or negate adverse effects. At a minimum,
the description of the proposed action will include:
(1) The proposed site location(s) or geographic extent of the
proposed project, plan, or program;
(2) The proposed footprint or area of the proposed project, plan,
or program;
(3) The expected duration of the project, plan, program, or policy;
and
(4) A detailed description of the proposed action, including any
related or connected actions.
(c) Alternatives. The EA will briefly discuss alternatives to the
extent required by section 102(2)(H) of NEPA (42 U.S.C. 4332(2)(H)).
(d) Scope of analysis. The EA will briefly discuss the reasonably
foreseeable effects of the proposed action and the alternatives
considered.
(1) VA will focus its analysis on whether the environmental effects
of the action or project at hand are significant.
(2) Similarly, VA will document in the EA where and how it drew a
reasonable and manageable line relating to its consideration of any
environmental effects from the action or project at hand that extend
outside the geographic territory of the project or might materialize
later in time.
(3) To the extent it assists in reasoned decision-making, VA may,
but is not required to by NEPA, analyze environmental effects from
other projects separate in time, or separate in place, or that fall
outside of VA's regulatory authority, or that would have to be
initiated by a third party. If VA determines that such analysis would
assist it in reasoned decision-making, it will document this
determination in the EA and explain where it drew a reasonable and
manageable line relating to the consideration of such effects from such
separate projects.
(e) Page limits. The text of an EA is strictly prohibited from
exceeding 75 pages, not including citations or appendices.
(f) Deadlines. As the Supreme Court has repeatedly held, NEPA is
governed
[[Page 36064]]
by a ``rule of reason.'' Congress supplied the measure of that reason
in the 2023 revision of NEPA by setting the deadlines in section 107(g)
of NEPA (42 U.S.C. 4336a(g)). These deadlines indicate Congress's
determination that an agency, working within Congress's allocation of
resources, has presumptively spent a reasonable amount of time on
analysis and the document should issue, absent very unusual
circumstances. In such circumstances, an extension will be given only
for such time as is necessary to complete the analysis. Thus:
(1) VA will complete the EA not later than the date that is one
year after the date a notice of intent to prepare the EA is published;
or, if a public notice of intent is not published, the date on which it
is confirmed by VA's assigned NEPA project manager for an agency- or
applicant-prepared EA, or by the NEPA contractor for a contractor-
prepared EA, that the proposed action is a major Federal action
requiring NEPA review and is sufficiently defined to estimate that it
would not have a reasonably foreseeable significant effect on the
quality of the human environment.
(2) VA will define the end date for an EA as the date that either a
FONSI is signed by the decision-maker or the date the VA NEPA project
manager has notified the NEPA Implementation Officer that an EIS is
required for the proposed action.
(3) VA will publish the EA, at the latest, on the day the one-year
deadline elapses, in as substantially complete form as is possible,
unless the deadline is extended pursuant to the provision in paragraph
(f)(4) of this section.
(4) If VA determines it is not able to meet the deadline prescribed
by section 107(g)(1)(B) of NEPA (42 U.S.C. 4336a(g)(1)(B)), it must
consult with the applicant, if any, pursuant to section 107(g)(2) of
NEPA (42 U.S.C. 4336a(g)(2)). After such consultation, if needed, and
for cause stated, it may establish a new deadline, approved in writing
by the NEPA Specialist responsible for completing the EA on schedule.
Cause for establishing a new deadline is only established if the EA is
so incomplete at the time at which VA determines it is not able to meet
the statutory deadline, that issuance pursuant to paragraph (f)(3) of
this section would, in VA's view, result in an inadequate analysis.
Such new deadline must provide only so much additional time as is
necessary to complete such EA. The announcement of the new deadline
will specify the reason why the EA was not able to be completed under
the statutory deadline and whether the applicant, if any, consented to
the new deadline.
(g) Scoping. Scoping is a process used to help determine the scope
of issues for analysis during the NEPA process. VA may determine to
publish a notice of intent to prepare the EA and accept public comments
on the scope of the EA. In such case, VA would follow the procedures
described in Sec. 26.42.
Sec. 26.41 Requirements for EISs.
(a) Purpose and need. The EIS will include the purpose and need for
the proposed action based on VA's statutory authority. When the
proposed action concerns VA's duty to act on an application for
authorization, the purpose and need for the proposed action will also
be informed by the goals of the applicant.
(b) Proposed action. The proponent will identify a proposed action.
The proposed action could be a plan, program, policy, or a specific
project. VA may incorporate avoidance or mitigation measures into the
proposed action to minimize or negate adverse effects. At a minimum,
the description of the proposed action will include:
(1) The proposed site location(s) or geographic extent of the
proposed project, plan, or program;
(2) The proposed footprint or area of the proposed project, plan,
or program;
(3) The expected duration of the project, plan, program, or policy;
and
(4) A detailed description of the proposed action, including any
related or connected actions.
(c) Alternatives. The EIS will include a detailed statement on a
reasonable range of alternatives to the proposed action, including an
analysis of any adverse environmental impacts of not implementing the
proposed agency action in the case of a no action alternative, that
are, in VA's expert judgment, technically and economically feasible,
and meet the purpose and need of the proposal.
(d) Analysis within the EIS. (1) The EIS will include a detailed
statement on:
(i) Reasonably foreseeable environmental effects of the proposed
action;
(ii) Any reasonably foreseeable adverse environmental effects which
cannot be avoided should the proposal be implemented;
(iii) The relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity;
(iv) Any irreversible and irretrievable commitments of Federal
resources that would be involved in the proposed action should it be
implemented; and
(v) Any means identified to mitigate adverse environmental effects
of the proposed action. VA is mindful in this respect that NEPA itself
does not require or authorize VA to impose any mitigation measures.
(2)(i) In preparing the EIS, VA will focus its analysis on the
environmental effects of the action or project at hand that are
significant.
(ii) Similarly, VA will document in the EIS where and how it drew a
reasonable and manageable line relating to its consideration of any
environmental effects from the action or project at hand that extend
outside the geographic territory of the project or might materialize
later in time.
(iii) To the extent it assists in reasoned decision-making, VA may,
but is not required to by NEPA, analyze environmental effects from
other projects separate in time, or separate in place, or that fall
outside of VA's regulatory authority, or that would have to be
initiated by a third party. If VA determines that such analysis would
assist it in reasoned decision-making, it will document this
determination in the EIS and explain where it drew a reasonable and
manageable line relating to the consideration of such effects from such
separate projects.
(3) EISs will discuss effects in proportion to their significance.
With respect to issues that are not of a substantive nature and do not
meaningfully inform the consideration of environmental effects and the
resulting decision on how to proceed, there will be no more than the
briefest possible discussion to explain why those issues are not
substantive and therefore not worthy of any further analysis. EISs will
be analytic, concise, and no longer than necessary to comply with NEPA
in light of the congressionally mandated page limits and deadlines.
(e) Format and page limits. (1) Except as provided in paragraph
(e)(2) of this section, the text of an EIS will not exceed 150 pages,
not including citations or appendices.
(2) An EIS for a proposed action of extraordinary complexity is
strictly prohibited from exceeding 300 pages, not including any
citations or appendices. VA will determine at the earliest possible
stage of preparation of an EIS whether the conditions for exceeding the
page limit in paragraph (e)(1) of this section are present.
(f) Deadlines. As the Supreme Court has repeatedly held, NEPA is
governed by a ``rule of reason.'' Congress supplied the measure of that
reason in the 2023 revision of NEPA by setting the deadlines in section
107(g) of NEPA (42 U.S.C. 4336a(g)). These deadlines indicate
Congress's determination that
[[Page 36065]]
an agency, working within Congress's allocation of resources, has
presumptively spent a reasonable amount of time on analysis and the
document should issue, absent very unusual circumstances. In such
circumstances, an extension will be given only for such time as is
necessary to complete the analysis. Thus:
(1) VA will complete the EIS not later than the date that is two
years after the sooner of, as applicable, the date a notice of intent
to prepare the EIS is published; or the date on which it is confirmed
by VA's assigned NEPA project manager for an agency- or applicant-
prepared EIS, or by the NEPA contractor for a contractor-prepared EIS,
that the proposed action is a major Federal action requiring NEPA
review and is sufficiently defined to estimate that the reasonably
foreseeable effects on the quality of the human environment would be
significant.
(2) VA will define the end date for an EIS as the date the EIS is
published or, in the case of a NEPA process in which VA first publishes
a Draft EIS for public comment, the date the Final EIS is published.
(3) The EIS will publish (unless the deadline is extended pursuant
to the provision in paragraph (f)(4) of this section) on the day the
deadline elapses, in as substantially complete form as is possible.
(4) If VA determines it is not able to meet the deadline prescribed
by section 107(g)(1)(A) of NEPA (42 U.S.C. 4336a(g)(1)(A)), it must
consult with the applicant, if any, pursuant to section 107(g)(2) of
NEPA (42 U.S.C. 4336a(g)(2)). After such consultation, if needed, and
for cause stated, it may establish a new deadline, approved in writing
by the NEPA Specialist responsible for completing the EIS on schedule,
by means of a notice published to the same VA website where the
original notice of intent for the EIS was posted. Cause for
establishing a new deadline is only established if the EIS is so
incomplete at the time at which VA determines it is not able to meet
the statutory deadline, that issuance pursuant to paragraph (f)(3) of
this section would, in VA's view, result in an inadequate analysis.
Such new deadline must provide only so much additional time as is
necessary to complete such EIS. The announcement of the new deadline
will specify the reason why the EIS was not able to be completed under
the statutory deadline and whether the applicant, if any, consented to
the new deadline.
(g) Publication of the EIS. (1) VA will publish the entire EIS on a
publicly accessible agency website.
(2) VA will file EISs together with comments and any responses with
the Environmental Protection Agency, Office of Federal Activities, for
publication in the Federal Register.
Sec. 26.42 Public engagement procedures.
(a) As a preliminary step to determining, in connection with a
proposal that is not excluded pursuant to a CATEX, whether VA will
prepare an EA or an EIS, VA will determine and document the scope of
the project at hand.
(b) As soon as practicable after determining that a proposal is
sufficiently developed to allow for meaningful public comment and
requires an EIS, VA will publish a notice of intent to prepare an EIS.
If VA determines that it will prepare an EA for a proposed action, VA
may publish a notice of intent to publish an EA.
(1) The notice of intent for an EIS will include a request for
public comment on alternatives or effects and on relevant information,
studies, or analyses with respect to the proposed agency action. See
section 107(c) of NEPA (42 U.S.C. 4336a(c)).
(2) In addition to a request for comment required for notices of
intent for EISs, notice of intent for any environmental document may
include:
(i) The purpose and need for the proposed action;
(ii) A preliminary description of the proposed action and
alternatives the environmental document will consider;
(iii) A brief summary of expected effects;
(iv) Anticipated permits and other authorizations (that is,
anticipated related actions);
(v) A schedule for the decision-making process;
(vi) A description of the public scoping process, including any
scoping meeting(s);
(vii) Contact information for a person within VA who can answer
questions about the proposed action and the environmental document; and
(viii) Identification of any cooperating and participating agencies
(that is, agencies responsible for related actions), and any
information that such agencies require in the notice to facilitate
their decisions or authorizations.
(c) VA may use an early and open process to determine the scope of
issues for analysis in an environmental document, including identifying
substantive issues that meaningfully inform the consideration of
environmental effects and the resulting decision on how to proceed,
eliminating from further study non-substantive issues, and determining
whether connected actions should be addressed in the same environmental
document. Scoping may begin as soon as practicable after the proposed
action is sufficiently developed for consideration. Scoping may include
appropriate pre-application procedures or work conducted prior to
publication of the notice of intent.
Sec. 26.50 Mitigation and monitoring.
(a) VA will consider possible mitigation measures to avoid,
minimize, or compensate for adverse effects caused by a proposed action
or alternatives as described in the NEPA document, and that have a
connection to those adverse effects. While NEPA requires consideration
of mitigation, it does not mandate the form or adoption of any
mitigation. NEPA documents will state the authority for any mitigation
adopted and any applicable monitoring or enforcement provisions.
(b) Possible mitigation measures for effects generated by the VA
action may include, but are not limited to, avoiding the effect by not
taking a certain action or parts of an action; minimizing the effect by
limiting the degree or magnitude of the action and its implementation;
rectifying the effect by repairing, rehabilitating, or restoring the
affected environment; reducing or eliminating the effect over time by
preservation and maintenance operations during the life of the action;
or compensating for the effect by replacing or providing substitute
resources or environments.
(c) Mitigation shall be enforceable when the proposed action
incorporates the mitigation measure(s) or conclusions about the
significance of reasonably foreseeable adverse effects are based on
implementation of mitigation measure(s).
(d) If VA finds no significant effects based on mitigation, the
mitigated FONSI will state any mitigation requirements enforceable by
VA or voluntary mitigation commitments that will be undertaken to avoid
significant effects. VA may require a monitoring and compliance plan
that includes:
(1) A basic description of the mitigation measure or measures;
(2) The parties responsible for monitoring and implementing the
mitigation;
(3) The anticipated timeframe for implementing and completing
mitigation;
(4) As applicable, the standard(s) for determining effectiveness of
mitigation and steps to be taken when a measure is determined to be not
sufficiently effective; and
[[Page 36066]]
(5) How the mitigation will be funded if other than by project
construction funds.
(e) VA will include the cost of the mitigation and monitoring
measures as part of the budget for the project when the agency has such
discretion.
(f) For grant awards, lease contracts, or land transfer agreements,
VA may include mitigation measure(s) as conditions, contract terms, or
agreement terms, respectively, that require the applicant, awardee, or
land transfer recipient to provide for their implementation.
Sec. 26.60 The decision: documentation and initiation of action.
(a) Decision documents. VA will prepare a FONSI or ROD at the
conclusion of the EA or EIS process to evidence the EA- or EIS-level
NEPA analysis and the decision that VA made after sufficient
consideration of alternatives and input from the public, as applicable.
VA will make the FONSI or ROD available to the public.
(1) FONSI. After preparing an EA, VA will prepare a FONSI when VA
determines a not otherwise categorically excluded proposed action does
not have the potential to cause significant impacts.
(i) VA shall include the EA in the FONSI or incorporate it by
reference.
(ii) VA shall include any mitigation requirements or commitments in
the FONSI (see Sec. 26.50).
(iii) VA will make the EA and FONSI available to the public on an
agency website.
(2) ROD. After completing an EIS, VA will issue a ROD that
summarizes the findings of the EIS and identifies VA's selected
alternative for implementation.
(i) The ROD will:
(A) State the decision.
(B) Identify the alternatives considered by VA in reaching its
decision.
(C) Identify and discuss all relevant factors that VA balanced in
making its decision and how their consideration entered into its
decision, including, as relevant, environmental, economic, technical,
considerations; VA's statutory mission; and essential considerations of
national policy.
(D) State whether VA has adopted all practicable means to mitigate
environmental harm from the selected alternative and, if not, why it
has not.
(E) Identify any enforceable mitigation requirements or commitments
(see Sec. 26.50).
(ii) VA will publish a notice of availability in the same manner as
the notice of intent to prepare the EIS was published, to notify the
public of the existence of the ROD.
(iii) VA may issue a decision concurrently with or at any time
after making an EIS publicly available, or making an EA publicly
available if a FONSI is deemed appropriate.
(b) Signatories. The VA decision-maker must sign the FONSI or ROD.
See Sec. 26.13(e) for information on the responsibilities and
designation of VA decision-makers.
(c) Initiation of VA action. With the exception of interim actions
and actions that would not have an adverse environmental effect or
limit the choice of reasonable alternatives:
(1) VA will not undertake actions evaluated in an EA until after VA
signs a FONSI; and
(2) VA will not undertake actions evaluated in an EIS until after
VA signs a ROD.
Sec. 26.70 Programmatic NEPA documents.
(a) Programmatic NEPA documents allow VA to conduct broad or
holistic evaluations of effects or policy alternatives, evaluate widely
applicable measures, or avoid duplicative analysis by considering all
or some of the environmental effects of a policy, program, plan, group
of projects or related types of projects, national or regional actions,
or otherwise related actions. Programmatic NEPA documents support
efficiency of NEPA review at the site-, action-, and project-specific
level. VA may evaluate the proposal(s) in one of the following ways:
(1) Geographically, including actions occurring in the same general
location, such as body of water, region, or metropolitan area.
(2) Generically, including actions that have relevant similarities,
such as common timing, effects, alternatives, methods of
implementation, media, or subject matter.
(3) By stage of technological development.
(b) Consistent with section 108 of NEPA (42 U.S.C. 4336b), after
completing a programmatic NEPA document, VA may rely on that document
for five years if there are not substantial new circumstances or
information about the significance of adverse effects that bear on the
analysis. After five years, as long as VA reevaluates the analysis in
the programmatic NEPA document and any underlying assumption to ensure
reliance on the analysis remains valid and briefly documents its
reevaluation and explains why the analysis remains valid considering
any new and substantial information or circumstances, VA may continue
to rely on the document.
(c) VA need not wait until the initiation of a specific project to
begin a programmatic review.
(d) VA may prepare a NEPA analysis specific to a unique program or
project that has aspects different from or not sufficiently evaluated
within a larger programmatic analysis. To tier an analysis to a
previous programmatic EIS or EA, VA must:
(1) Incorporate the programmatic EIS or EA by reference in the
tiered analysis, and
(2) Analyze all specific reasonably foreseeable environmental
effects and a reasonable range of alternatives not covered at the
programmatic level.
Sec. 26.71 Reliance on existing NEPA documents.
(a) Generally. If the action covered by an original NEPA document
from another Federal agency and VA's action are substantially the same,
VA may rely on the other agency's NEPA document to satisfy or complete
part of the NEPA analysis or to fulfill other Federal requirements
integrated into the NEPA process. Existing documents are prepared for a
purpose other than the proposed VA action. VA will only rely on another
agency's NEPA document after the VA NEPA Implementation Officer or
their delegate conducts and documents an independent review and creates
a decision document to finalize the reliance on the other agency's NEPA
document The document may be an EIS, EA, or CATEX. When relying on a
NEPA document, or portion thereof, VA will cite, briefly describe the
content and relevance to VA's proposed action, and may make
modifications that are necessary to render the relied-upon document, or
portion thereof, fit for fulfilling NEPA's analytic requirements for
the action at hand.
(b) Substantial similarity. (1) If the actions covered by an
original EIS or EA and the proposed action are substantially the same,
VA will republish the relied-upon EIS or EA.
(2) If the actions are not substantially the same, VA may modify
the EIS or EA as necessary to render the document fit for fulfilling
NEPA's analytic requirements for the action at hand, and publish the
relied-upon EIS or EA, as modified. Where appropriate, VA may solicit
comment to the extent that solicitation of comment will assist VA in
expeditiously adapting the relied-upon EIS or EA so that it is fit for
VA purposes.
Sec. 26.72 Combining documents.
Whenever practicable, VA will reduce duplication and paperwork by
combining NEPA analyses for two or
[[Page 36067]]
more VA actions or combining NEPA documents with other VA documents, to
the fullest extent practicable. Circumstances in which VA may combine
documents include but are not limited to actions located at the same
site or region, similar actions (such as construction of similar types
of facilities), and actions within the same program.
Sec. 26.73 Supplemental analyses.
VA will prepare a supplemental analysis if a major Federal action
is incomplete or ongoing and if there are substantial changes to the
proposed action that are relevant to environmental concerns or there
are substantial new circumstances or information about the significance
of adverse effects that bear on the analysis. VA may also prepare a
supplemental analysis when the purposes of NEPA will be furthered by
doing so. A supplemental analysis may be completed at any stage of an
EIS or EA. If, following internal agency review of an existing NEPA
document, VA finds that changes to the proposed action or new
circumstances or information relevant to environmental concerns are not
substantial and therefore do not require a supplement, a NEPA
Specialist will prepare a memorandum-to-file detailing the review
process and analysis, with concurrence from either the decision-maker
(or their successor) who signed the original NEPA document (EA or EIS)
or the current VA NEPA Implementation Officer.
(a) Supplemental EA. VA may publish for public comment a
supplemental EA to a draft or final EA, as appropriate to the stage of
the EA involved, in consideration of whether public comments on the EA
were previously solicited and the nature of any comments received as
relevant to the new information or circumstances.
(b) Supplemental EIS. VA may publish for public comment a
supplemental EIS to a draft or final EIS, as appropriate to the stage
of the EIS involved, in consideration of whether public comments on the
EIS were previously solicited and the nature of any comments received
as relevant to the new information or circumstances.
(c) Administrative record. VA must add any supplemental analysis,
or memorandum-to-file concluding supplemental analysis is not required,
to the administrative record of the original EA or EIS to which the
supplement applies. VA will integrate the supplemental EA or EIS using
a format and technology compatible with the administrative record for
the original EA or EIS. If an index for the original administrative
record exists, VA will update or supplement it to list the supplemental
EA or EIS.
Subpart C--The Role of Third Parties in the NEPA Process
Sec. 26.80 Purpose of this subpart.
This subpart outlines the relationship between VA and Federal,
Tribal, State, and local environmental agencies; identifies the role of
VA in actions initiated by other Federal agencies and the role other
Federal agencies may play in VA actions; and describes the role of
applicants in VA's NEPA process.
Sec. 26.81 Relationships with third parties.
Although VA is ultimately responsible for ensuring the NEPA process
is completed for VA actions, VA may share responsibility with third
parties for the completion of a NEPA analysis. VA will participate as a
lead agency, joint lead agency, or cooperating agency during the NEPA
process for VA actions and actions taken by third parties. See sections
111(2) and (9) of NEPA (42 U.S.C. 4336e(2) and (9)) for the definitions
of cooperating agency and lead agency.
(a) Cooperating agencies. Cooperating agencies assist the lead
agency during the NEPA process. VA may request Tribes and Federal,
State, and local agencies to participate in the NEPA process as a
cooperating agency for a VA action. Other agencies and Tribes may
request to participate in a VA action as cooperating agencies or may
request VA to participate in their NEPA processes as a cooperating
agency.
(1) Requests for another agency to participate as a cooperating
agency in a VA action. VA may request and approve another agency to
participate in the NEPA process for a VA action as a cooperating agency
when the other agency possesses specialized knowledge or jurisdiction
by law applicable to the VA action, VA makes the request early in the
NEPA process, and granting cooperating agency status will not create
undue delay.
(2) VA acting as a cooperating agency in another agency's action.
If another agency with a proposed action requests VA to participate in
the NEPA process as a cooperating agency, VA will participate in the
requesting agency's NEPA process whenever practicable. VA may request
to participate as a cooperating agency in another agency's NEPA process
when the other agency's proposed action overlaps with VA authority or
actions.
(b) Joint lead agencies. VA may share lead agency status with one
or more other agencies. Joint lead agencies can be Federal or non-
Federal entities. Ordinarily, the lead agency follows its own
regulations implementing NEPA when preparing an environmental document
in the NEPA analysis. However, when there are joint lead agencies, they
will each ensure consistency with their own NEPA procedures to ensure
they can rely on the environmental document. For each specific
procedure, they will typically need to follow the most conservative
agency procedure for each step.
(c) Lead agency designation. All requests from another agency for
VA to participate as a lead agency should be sent to the Senior Agency
Official.
(d) Documentation. VA will work with the other agencies
participating in the NEPA process to separate and establish
responsibilities among the agencies and will document these decisions
in accordance with departmental policy.
Sec. 26.82 State, Tribal, and local requirements.
State, Tribal, and local agencies may have programs in place that
apply to the implementation or planning of a VA action, including but
not limited to a State permitting system. When possible, VA will
eliminate duplicate documentation of compliance with State, Tribal, and
local procedures that involve similar analysis or information gathering
to what NEPA requires by producing one NEPA document to satisfy
environmental requirements at the Federal, State, Tribal, and local
levels.
Sec. 26.83 Applicants for Federal assistance.
(a) Procedures for applicant-prepared NEPA documents. (1) In
accordance with section 107(f) of NEPA (42 U.S.C. 4336a(f)), VA has
established procedures allowing applicants, or contractors hired by
applicants, to prepare environmental documents under VA's supervision.
(2) A VA NEPA Specialist will independently evaluate the
environmental document and VA will take responsibility for its
contents.
(3) VA will assist applicants and applicant-hired contractors by
providing guidance and outlining the types of information required for
the preparation of the environmental document. VA may also provide
appropriate guidance and assist in environmental document preparation,
to the extent that VA's resources and policy priorities permit. VA will
work with the applicant to define the purpose and need and, when
appropriate, to develop a reasonable range of alternatives to meet that
purpose and need.
[[Page 36068]]
(4) VA will develop and modify, as appropriate, a schedule for
preparation of the environmental document. VA will document major
changes to the schedule or related matters through written
correspondence.
(5) VA may request from an applicant environmental information for
use by VA in preparing or evaluating an environmental document. This
may include a decision file consisting of any factual, scientific, or
technical information used, developed, or considered by the applicant
or applicant-hired contractor in the course of preparing an
environmental document, including any correspondence with VA or third
parties.
(6) Project sponsors intending to pay a fee for an expedited EIS or
EA deadline pursuant to section 112 of NEPA (as amended through Pub. L.
119-21, July 4, 2025) for which VA would be the lead agency should
consult with VA before submitting a request to CEQ. VA will use such
consultation to assist the project sponsor in providing an accurate
description of the project as it relates to the anticipated EIS- or EA-
associated costs and understanding the anticipated scope of the
environmental review including whether to prepare an EA or an EIS.
(b) Grants. Third parties may apply for VA grants. Where VA can
identify similar types of grants, such as with the establishment of a
new grant program, a programmatic NEPA analysis may be appropriate.
Program applicants, including but not limited to entities such as a
State veterans agency, may have to provide information to VA to support
an environmental analysis of the project. Examples of grant actions
include but are not limited to State veterans home construction grants
and State cemetery grants.
(c) Discretionary benefits. VA may conduct a programmatic NEPA
analysis for any benefit program that constitutes a major Federal
action as defined in section 111(10) of NEPA (42 U.S.C. 4336e(10)).
(d) Entitlements. Entitlements are defined as assistance provided
to a veteran or veteran's beneficiary over which VA has no discretion.
VA's role in entitlements is purely administrative in nature. Since VA
actions on entitlements are non-discretionary, entitlement awards do
not meet the definition of a major action in section 111(10) of NEPA
(42 U.S.C. 4336e(10)), are outside of the scope of this part, and NEPA
does not apply. Examples of VA entitlements include but are not limited
to pensions and survivor benefits.
(e) Plans for VA assistance. Applicants for VA grants and
discretionary benefits may develop preliminary plans, designs, and
other work to support an application to VA. Preliminary plans do not
violate the purpose of this part.
Sec. 26.84 Non-compliance by applicants.
VA will promptly notify the applicant that VA requires appropriate
action to comply with NEPA when VA becomes aware that an applicant is
about to take action that would have an adverse environmental effect or
limit the choice of reasonable alternatives prior to the issuance of a
CATEX, FONSI, or ROD.
Subpart D--Unique Procedures: Emergencies, Protected Information,
and International Actions
Sec. 26.90 Purpose of this subpart.
This subpart provides the VA procedures for complying with NEPA
during emergencies, how VA will handle sensitive or classified
information, and how VA will consider the international effects of VA
actions.
Sec. 26.91 Emergencies.
An emergency is a situation in which human life or the human
environment is in jeopardy and urgent or immediate action is necessary
to prepare for or respond to the situation. Emergencies include natural
disasters and human-caused events such as terrorist attacks, oil
spills, and industrial explosions. Emergencies do not include a failure
to plan for a project or program or a failure to adequately prepare for
a NEPA analysis or other environmental requirements. During an
emergency, VA will comply with the NEPA process as established in this
part or implement alternative arrangements for compliance with NEPA to
the extent feasible, and only for actions necessary to control the
immediate impacts of the emergency; other actions remain subject to
NEPA review in accordance with this part.
(a) EISs. Alternative arrangements are alternatives to the
traditional documentation requirements for EISs in NEPA. VA creates
alternative arrangements based on specific facts and circumstances.
Alternative arrangements are limited to actions necessary to control
the immediate impacts of the emergency. The long-term response or
recovery actions remain subject to the regular NEPA process. When VA is
contemplating an emergency action with alternative arrangements to the
NEPA process, relevant factors include the nature and scope of the
emergency, whether the action is necessary to control the immediate
effects of the emergency, potential adverse effects of the proposed
action, components of the NEPA process that VA can follow and provide
value to decision-making, the duration of the emergency, and potential
mitigation measures.
(b) CATEXs. VA may respond to an emergency with an action that is
categorically excluded from further NEPA analysis. When a CATEX applies
in an emergency situation, no alternative arrangements are necessary.
(c) EAs. For VA emergency actions that are not expected to have
significant environmental impacts and are not categorically excluded,
VA prepares an EA. VA will waive its own procedural requirements for
actions normally subject to an EA if an emergency necessitates an
action to save human life and property. In such an emergency, VA will
develop alternative arrangements. VA will consider factors including
but not limited to the nature and scope of the emergency, whether the
action is necessary to control the immediate effects of the emergency,
potential adverse effects of the proposed action, aspects of the NEPA
process that VA may follow during the emergency response, the duration
of the emergency, and potential mitigation measures.
(d) Consultation with CEQ. VA consults with CEQ as early as
possible when VA determines alternative arrangements for compliance
with section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)) may be necessary
to respond to an emergency for an action with reasonably foreseeable
significant environmental effects. The NEPA Implementation Officer will
contact CEQ when VA makes such a determination.
Sec. 26.92 Sensitive or classified information.
(a) Policy. VA will not disclose information that is protected from
disclosure under the Freedom of Information Act. Although VA will not
release protected information to the public, VA may in some cases use
sensitive or classified information in preparing NEPA analyses. VA
policy for withholding sensitive and classified information will not
contravene VA's commitment to public engagement under NEPA. When a NEPA
analysis relies on sensitive or classified information, VA must
withhold the protected information from intentional disclosure while
releasing the environmental analysis to the public. VA will not
disclose sensitive information, including an individual veteran's
medical records, personal information, or other information considered
personal. Generally, VA will
[[Page 36069]]
use veterans' information in the aggregate in a NEPA analysis to
identify trends, needs, levels, types, and locations of services or
benefits that VA provides. VA must protect classified information for
national security reasons. See the Freedom of Information Act for an
explanation of classified information.
(b) Documentation. VA must assess and document the environmental
effects of its proposed action despite the presence of sensitive or
classified environmental information. If only part of the environmental
information is sensitive or classified, VA will segregate the sensitive
or classified information from the remainder of the environmental
information. VA will disclose the non-sensitive and non-classified
information to the public in the NEPA analysis.
Sec. 26.93 International actions or effects.
(a) Customary international law. VA programs and benefits extend to
veterans of the United States who live abroad. VA is committed to
pursuing an active role in addressing environmental quality issues in
VA relations with neighboring communities in foreign countries and
assuring that consideration of the environment is an integral part of
all decisions.
(b) VA actions abroad. Executive Order 12114, Environmental Effects
Abroad of Major Federal Actions, does not rely upon NEPA for its
authority but does further the purpose of NEPA and provides guidance
for analyzing the environmental impacts of VA actions abroad. VA will
act in accordance with the requirements of Executive Order 12114 and
document potential environmental effects of VA actions abroad to the
extent consistent with law.
[FR Doc. 2026-11973 Filed 6-12-26; 8:45 am]
BILLING CODE 8320-01-P
</pre></body>
</html>Indexed from Federal Register on June 15, 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.