Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6553 

the right to receive such cash payments 

in whole or in part. 

§ 625.19 Appeals. 

(a) A person participating in the HFRP 

may obtain a review of any 

administrative determination 

concerning eligibility for participation 

utilizing the administrative appeal 

regulations provided in 7 CFR parts 11 

and 614. 

(b) Before a person may seek judicial 

review of any administrative action 

concerning eligibility for program 

participation under this part, the person 

must exhaust all administrative appeal 

procedures set forth in paragraph (a) of 

this section, and for purposes of judicial 

review, no decision will be a final 

agency action except a decision of the 

Chief under these procedures. 

(c) Any appraisals, market analysis, or 

supporting documentation that may be 

used by NRCS in determining property 

value are considered confidential 

information, and will only be disclosed 

as determined at the sole discretion of 

NRCS in accordance with applicable 

law. 

(d) Enforcement actions undertaken 

by NRCS in furtherance of its federally 

held property rights are under the 

jurisdiction of the Federal District 

Court, and are not subject to review 

under administrative appeal regulations. 

§ 625.20 Scheme and device. 

(a) If it is determined by NRCS that a 

person has employed a scheme or 

device to defeat the purposes of this 

part, any part of any program payment 

otherwise due or paid to such person 

during the applicable period may be 

withheld or be required to be refunded 

with interest thereon, as determined 

appropriate by NRCS. 

(b) A scheme or device includes, but 

is not limited to, coercion, fraud, 

misrepresentation, depriving any other 

person of payments for 10-year costshare agreements, contracts, or 

easements for the purpose of obtaining 

a payment to which a person would 

otherwise not be entitled. 

(c) A person who succeeds to the 

responsibilities under this part will 

report in writing to NRCS any interest 

of any kind in enrolled land that is held 

by a predecessor or any lender. A failure 

of full disclosure will be considered a 

scheme or device under this section. 

Signed this 4th day of February, 2010, in 

Washington, DC. 

Dave White, 

Chief, Natural Resources Conservation 

Service. 

[FR Doc. 2010–2812 Filed 2–9–10; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF AGRICULTURE 

Natural Resources Conservation 

Service 

7 CFR Part 650 

RIN 0578–AA55 

Compliance With NEPA 

AGENCY: Natural Resources 

Conservation Service, United States 

Department of Agriculture. 

ACTION: Final rule. 

SUMMARY: The Natural Resources 

Conservation Service (NRCS) published 

an interim final rule on July 13, 2009, 

that identified additional categorical 

exclusions, which are actions that NRCS 

has determined do not individually or 

cumulatively have a significant effect on 

the human environment and, thus, 

should not require preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS) 

under the National Environmental 

Policy Act (NEPA). This final rule 

responds to comments received on the 

interim final rule and makes final the 

provisions set forth in the interim final 

rule. NRCS’ categorical exclusions 

encompass actions that promote 

restoration and conservation activities 

related to past natural or human 

induced damage, or alteration of 

floodplains and watershed areas. For 

projects being funded under the 

American Recovery and Reinvestment 

Act of 2009 (ARRA), this final rule will 

assist NRCS in meeting mandates set 

forth in ARRA for undertaking actions 

in the most expeditious manner and in 

compliance with NEPA. 

DATES: Effective Date: The rule is 

effective February 10, 2010. 

FOR FURTHER INFORMATION CONTACT: Matt 

Harrington, National Environmental 

Coordinator, Ecological Sciences 

Division, Department of Agriculture, 

Natural Resources Conservation Service, 

1400 Independence Avenue, SW., Room 

6158 South Building, Washington, DC 

20250; Telephone: (202) 720–4925; Fax: 

(202) 720–2646; or e-mail 

NEPA2008@wdc.usda.gov, and identify 

in the subject line, ‘‘Information 

Requested.’’ This final rule may be 

accessed via Internet. Users can access 

the final rule at: http:// 

www.nrcs.usda.gov/programs/ 

Env_Assess/index.html. Persons with 

disabilities who require alternative 

means for communication (Braille, large 

print, audio tape, etc.) should contact 

the USDA TARGET Center at: (202) 

720–2600 (voice and TDD). 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is a non-significant regulatory 

action under Executive Order 12866. 

Regulatory Flexibility Act 

Pursuant to 5 U.S.C. 605(c) of the 

Regulatory Flexibility Act, NRCS has 

determined that this final rule will not 

have a significant economic impact on 

a substantial number of small entities as 

defined by that Act. Therefore, a 

regulatory flexibility analysis is not 

required for this final rule. 

Environmental Analysis 

This final rule amends the procedures 

for implementing NEPA at 7 CFR part 

650 and will not directly impact the 

environment. An agency’s NEPA 

procedures are guidance to assist the 

agency in its fulfillment of 

responsibilities under NEPA, but are not 

the agency’s final determination of what 

level of NEPA analysis is required for a 

particular action. The Council for 

Environmental Quality (CEQ) set forth 

the requirements for establishing agency 

NEPA procedures in its regulations at 40 

CFR 1505.1 and 1507.3. The CEQ 

regulations do not require agencies to 

conduct NEPA analyses or prepare 

NEPA documentation when establishing 

their NEPA procedures. The 

determination that establishing agency 

NEPA procedures does not require 

NEPA analysis and documentation has 

been upheld in Heartwood, Inc. v U.S. 

Forest Service, 230 F.3d 947, 954–55 

(7th Cir. 2000). 

Paperwork Reduction Act 

There are no requirements for 

information collection associated with 

this final rule that would require 

approval under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

Unfunded Mandates Reform Act of 1995 

NRCS assessed the effects of this 

rulemaking action on State, local, or 

tribal governments and the public. This 

action does not compel the expenditure 

of $100 million or more in any one year 

(adjusted for inflation) by any State, 

local, or tribal governments or anyone in 

the private sector; therefore, a statement 

under section 202 of the Unfunded 

Mandates Reform Act of 1995 is not 

required. 

Executive Order 13175 

This final rule has been reviewed in 

accordance with Executive Order 13175, 

Consultation and Coordination with 


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6554 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

Indian tribal governments. NRCS has 

assessed the impact of this final rule on 

Indian tribal governments, and has 

concluded that this rule will not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

As a result, the rule did not meet the 

threshold for requiring consultation as 

specified by Executive Order 13175. 

NRCS remains committed to seeking 

advice, guidance, and counsel from 

Indian tribes in regard to natural 

resource concerns and issues. 

Civil Rights Impact Analysis 

In accordance with OMB’s 

determination that this final rule is 

deemed non-significant, NRCS was not 

required to conduct a Civil Rights 

Impact Analysis. However, the NRCS 

Civil Rights Division reviewed the final 

rule and determined through a Civil 

Rights assessment that NEPA’s final rule 

imposes no disproportionately adverse 

impacts for women, minorities, or 

persons with disabilities. On July 13, 

2009, NRCS published an interim final 

rule that identified additional 

categorical exclusions, which are 

actions that NRCS has determined do 

not individually or cumulatively have a 

significant effect on the human 

environment and, thus, they should not 

require preparation of an EA or an EIS 

under NEPA. NRCS’ categorical 

exclusion actions promote restoration 

and conservation activities related to 

past natural or human induced damage, 

or alteration of floodplains and 

watershed areas. For projects being 

funded under the ARRA, this final rule 

will assist NRCS in meeting mandates 

set forth in ARRA for undertaking 

actions in the most expeditious manner 

and in compliance with NEPA. The 

changes included in this regulation 

address the identified 21 new 

categorical exclusions and are 

applicable to all persons regardless of 

race, color, national origin, gender, sex, 

or disability status. Therefore, the NEPA 

final rule portends no adverse civil 

rights implications for women, 

minorities, or persons with disabilities. 

Civil Justice Reform 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. After adoption of this 

final rule: (1) All State and local laws 

and regulations that conflict with this 

rule, or that would impede full 

implementation of this rule, will be 

preempted, and (2) no retroactive effect 

would be given to this final rule. 

Executive Order 13132 

NRCS has considered this final rule in 

accordance with Executive Order 13132, 

issued August 4, 1999. NRCS has 

determined that the rule conforms to the 

Federalism principles set out in this 

Executive Order; would not impose any 

compliance costs on the States; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Therefore, 

NRCS concludes that this rule does not 

have Federalism implications. 

Energy Effects 

NRCS has determined that this final 

rule does not constitute a significant 

energy action as defined in Executive 

Order 13211. 

Background 

On July 13, 2009, NRCS published an 

interim final rule that amended 7 CFR 

650.6 to identify an additional 21 

actions that can, in the absence of 

extraordinary circumstances, be 

categorically excluded from further 

review in an EA or an EIS. NRCS 

determined that the new categorical 

exclusions routinely do not individually 

or cumulatively have a significant effect 

on the human environment. The 

statement supporting the categorical 

exclusions is available for review at the 

following Web site: http:// 

www.nrcs.usda.gov/programs/ 

Env_Assess/index.html or upon request 

from Matt Harrington, National 

Environmental Coordinator, Ecological 

Sciences Division, Department of 

Agriculture, Natural Resources 

Conservation Service, 1400 

Independence Avenue, SW., Room 6158 

South Building, Washington, DC 20250. 

NRCS provided a 60-day comment 

period to solicit responses from the 

public regarding the identification of the 

21 new categorical exclusions. NRCS 

received 16 substantive and timely filed 

letters containing approximately 25 

comments. Respondents included nine 

non-governmental organizations, one 

Federal government agency, one State 

agency, one local government agency, 

three individuals, and one tribal agency. 

Comments were received from Georgia, 

Iowa, Kansas, Kentucky, Maryland, 

Mississippi, New Mexico, Oklahoma, 

Rhode Island, South Dakota, Texas, and 

Washington, DC. The discussion that 

follows is a summarized version of the 

comments and the agency’s responses. 

Discussion of Comments 

The comments received focused on 

the following issues: (1) Support for the 

expanded list of categorical exclusions; 

(2) clarification on compliance with 

other environmental laws and 

permitting requirements when invoking 

a categorical exclusion; (3) assessment 

of tribal implications and consultation; 

and (4) clarification on certain terms 

and conditions under which a 

categorical exclusion may be used. 

Eleven of the 16 sets of comments 

received expressed support for the 

expanded list of categorical exclusions. 

Compliance With Other Environmental 

Laws 

Comment: One respondent asked 

whether other potentially applicable 

environmental laws, such as section 404 

of the Clean Water Act, would require 

NRCS to prepare an EA or EIS if the 

Environmental Protection Agency (EPA) 

or the United States Army Corps of 

Engineers (USACE) determined that 

there were significant impacts or 

extraordinary circumstances associated 

with a project. 

Response: NRCS uses its site-specific 

environmental evaluation (EE) process 

and assessment to make the appropriate 

determination of whether extraordinary 

circumstances exist which require 

preparing an EA or EIS. However, NRCS 

will consider any input received from 

EPA or USACE when determining the 

need for an EA or EIS. 

Comment: The respondent also 

questioned whether there would be a 

lessening of the environmental studies 

needed to proceed with the 

implementation of conservation 

practices and queried whether 

recommended mitigation by outside 

regulatory agencies, such as EPA or 

USACE, would require more in-depth 

analysis under NEPA. 

Response. NRCS will still undertake 

an EE for all projects and determine 

whether there is a need to prepare an 

EA or EIS. Appropriate environmental 

reviews would be undertaken, and there 

would be no less stringent 

environmental review performed 

regardless of any recommendation 

received from regulatory agencies. 

The conservation planning and EE 

process is designed to minimize any 

adverse impacts to resources. Thus, any 

mitigation that is proposed as an 

integral part of the project, whether that 

mitigation is recommended by NRCS as 

part of the planning process or an 

outside regulatory agency, is considered 

during preparation of the EE which is 

used to determine if there are 

extraordinary circumstances and the 

appropriate level of environmental 

review. The proposed action and all its 

integral parts will be reviewed, and if 

approved, implemented. 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6555 

Comment: Several comments were 

received requesting clarification on how 

NRCS will determine any extraordinary 

circumstances and the need for an EA 

or EIS. Also, a comment was raised that 

extraordinary circumstances were being 

referenced in the interim final rule and 

whether the list of extraordinary 

circumstances could be provided in the 

final rule. 

Response. As described in the 

preamble language of the interim final 

rule, NRCS prepares an EE for all 

assistance actions. Through this EE, 

NRCS assesses the project and any 

alternatives to the project as proposed. 

Specifically, a determination is made 

regarding whether there are 

extraordinary circumstances that may be 

present for a proposed action, and if any 

extraordinary circumstances exist, then 

a determination is made on the need to 

prepare an EA or EIS. 

NRCS evaluates each action using its 

list of special environmental concerns, 

along with the significance factors listed 

by the CEQ at 40 CFR 1508.27, to 

determine whether an action has 

extraordinary circumstances. NRCS has 

included the list of extraordinary 

circumstances in this rule at 

§ 650.6(c)(2). 

Comment: Four respondents 

commented that the final regulation 

should include language that specifies 

NRCS will comply with other applicable 

environmental laws and executive 

orders when categorical exclusions 

under NEPA are applied. The specific 

comments focused on the compliance 

for the National Historic Preservation 

Act (NHPA), Native American Graves 

and Repatriation Act, and the 

Archaeological and Historic 

Preservation Act. 

Response. NRCS has modified the 

regulatory language to include the 

following statement into the NEPA 

regulation language of § 650.6(d): ‘‘The 

use of the following categorical 

exclusions for a proposed action does 

not waive NRCS compliance with any 

applicable legal requirement including, 

but not limited to, the National Historic 

Preservation Act or the Endangered 

Species Act.’’ 

Comment: One respondent 

commented that the EE process and 

documentation was not explained in 

great detail in the interim final rule and 

requested that clarification be provided. 

Response. The interim final rule 

indicated and referred the public to 7 

CFR 650.5 which provides detailed 

information on the process and 

documentation required for an EE. The 

reference to 7 CFR 650.5 is considered 

sufficient because it requires the 

following: 

‘‘§ 650.5 Environmental evaluation in 

planning. 

(a) General. The EE integrates 

environmental concerns throughout the 

planning, installation, and operation of 

NRCS-assisted projects. The EE applies 

to all assistance provided by NRCS, but 

planning intensity, public involvement, 

and documentation of actions vary 

according to the scope of the action. 

NRCS begins consideration of 

environmental concerns when 

information gathered during the EE is 

used: 

(1) To identify environmental 

concerns that may be affected, gather 

baseline data, and predict effects of 

alternative courses of actions; 

(2) To provide data to applicants for 

use in establishing objectives 

commensurate with the scope and 

complexity of the proposed action; 

(3) To assist in the development of 

alternative courses of action (40 CFR 

part 1502.14). In NRCS-assisted project 

actions, nonstructural, water 

conservation, and other alternatives that 

are in keeping with the Water Resources 

Council’s Principles and Standards are 

considered, if appropriate; 

(4) To perform other related 

investigations and analyses, as needed, 

including economic evaluation, 

engineering investigations, etc.; and 

(5) To assist in the development of 

detailed plans for implementation and 

operation and maintenance.’’ 

Comment: One respondent stated that 

several of the categorical exclusions 

may have the potential to affect cultural 

resources and queried whether those 

actions should be listed as categorical 

exclusions. 

Response. NRCS prepared an 

extensive supporting document citing 

previous environmental reviews and 

experience with the actions listed as 

categorical exclusions and believes that 

the actions are appropriate as 

categorical exclusions. A copy of the 

supporting document can be reviewed 

on the following Web site: http:// 

www.nrcs.usda.gov/programs/ 

Env_Assess/index.html. NRCS will also 

prepare a site-specific EE which 

assesses whether the proposed action 

meets the agency’s criteria to be 

categorically excluded, or if an EA or 

EIS should be prepared. NRCS will not 

consider an action to be categorically 

excluded if the EE reveals that there 

may be extraordinary circumstances 

which entails an assessment of impacts 

to resource issues, including cultural 

resources. Furthermore, the regulation 

at 7 CFR part 650.6(c)(2)(B) stipulates 

that the proposed action cannot 

significantly affect cultural resources. 

Comment: NRCS received a comment 

disagreeing with the NRCS 

determination that there would not be 

any compliance costs imposed on 

States. The respondent stated that there 

could be an increase in the workload for 

State Historic Preservation Office 

(SHPO) staff related to educating NRCS 

on the differences between NEPA and 

NHPA because of the increase in 

categorical exclusions. 

Response: The increased number of 

categorical exclusions will not increase 

the workload on SHPOs since the 

magnitude of projects would not 

change. All projects will still be 

evaluated to determine the need to 

comply with NHPA, in addition to 

NEPA, for documenting the use of 

categorical exclusions. The project 

action being evaluated determines the 

level of work and consultation under 

section 106 of NHPA, not the level of 

NEPA documentation. Therefore, we 

disagree with the comment and believe 

that there would not be any compliance 

costs incurred by States. 

NRCS has extensive on-line and field 

classes on NHPA and NEPA for NRCS 

staff. In addition, NRCS has an annual 

training plan to educate State and field 

offices on all environmental laws. NRCS 

also has held five training sessions 

across the Nation to educate staff on the 

new categorical exclusions and sent out 

bulletins to field offices. NRCS has 

planned an additional five training 

sessions for fiscal year 2010 to further 

educate field offices on the utilization of 

these categorical exclusions. 

Comment: NRCS received a comment 

that NRCS did not consult or coordinate 

with tribal governments during the 

process of developing the interim final 

rule and requested that the regulation be 

withdrawn. 

Response: NRCS remains committed 

to seeking advice, guidance, and 

counsel from Indian tribes in regard to 

natural resource concerns and issues. 

Indian tribes interested in providing 

input regarding conservation program 

policies may submit their request 

directly to the Chief of NRCS. As part 

of this rulemaking, NRCS has assessed 

the impact of the interim final rule and 

this final rule on Indian tribal 

governments, and has concluded that 

these rulemakings will not have 

substantial direct effects on Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. The rule 

affects NRCS’ administrative procedures 

for preparing environmental reviews of 

NRCS actions that provide restoration 

and conservation assistance to 


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6556 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

landowners, applicants, tribal 

governments, and others. Specifically, 

the rule provides for an expanded list of 

categorical exclusions which should 

assist the agency in funding and 

implementing proposed conservation 

actions for landowners, applicants, 

Indian tribal governments, and others. 

As a result, the rule does not meet the 

threshold for requiring consultation as 

specified by Executive Order 13175. 

NRCS remains committed to seeking 

advice, guidance, and counsel from 

Indian tribes in regard to natural 

resource concerns and issues. 

Comment: NRCS received a comment 

requesting clarification of the term 

adapted species. The respondent noted 

that adapted species could connote the 

use of invasive and noxious species. 

The respondent also requested that the 

categorical exclusion in § 650.6(d)(1) 

concerning planting of vegetation be 

modified to remove the term adapted 

species and replaced with ‘‘native 

species.’’ 

Response: NRCS’ General Manual 

Title 190 part 414 subpart D does not 

allow the agency to utilize invasive or 

noxious species in conservation actions. 

While NRCS promotes the use of native 

species, it is not always feasible or 

practicable to utilize native species in 

some NRCS activities; therefore, NRCS 

is not making changes to the rule in 

response to this comment. However, the 

categorical exclusion in § 650.6(d)(1) 

has been modified to state only 

appropriate herbaceous and woody 

vegetation will be used which does not 

include invasive or noxious weeds. 

Comment: One respondent 

commented that vegetating disturbed 

areas should not result in conversion of 

native forest or grassland. 

Response: The areas to which the 

categorical exclusion will apply have 

already been disturbed or were in prior 

agricultural use. All categorical 

exclusions are intended to maintain or 

restore ecological functions and do not 

include conversion of native vegetation. 

The exception might be small areas 

requiring stabilization, but conversion 

in these cases would not be extensive. 

The categorical exclusion in section 

650.6(d)(1) requires that the established 

vegetative community maintain the sites 

ecological functions and services, which 

could not be accomplished by 

converting native forests or grasslands. 

Comment: NRCS received a comment 

recommending that a condition be 

placed on the use of categorical 

exclusions. Specifically, the respondent 

suggested that categorical exclusions 

should not result in increased threats to 

populations of at risk-species. Further, 

the respondent recommended including 

the following in the definition of at-risk 

species: species listed as endangered or 

threatened under the Endangered 

Species Act (ESA); proposed or 

candidate species for listing under the 

ESA; species likely to become 

candidates in the near future; species 

listed as endangered or threatened (or 

similar classification) under State law; 

and State species of conservation 

concern. 

Response: Significant adverse effects 

to threatened and endangered species as 

defined by the ESA is one of the 

extraordinary circumstances listed in 

§ 650.6(c). Therefore, the use of a 

categorical exclusion is conditioned on 

no significant effects to threatened and 

endangered species. 

Although non-ESA-listed species do 

not constitute extraordinary 

circumstances, NRCS does take into 

consideration species which have been 

identified as at risk or as ‘‘species of 

concern’’ by tribal, State, or other 

entities in its conservation planning and 

EE processes. Specifically, NRCS works 

with partners at the State and local 

levels to set priorities for conservation 

of species and habitats of special 

conservation concern. As part of the 

conservation planning process, the 

presence of priority ‘‘species of concern’’ 

is evaluated, and any potential impacts 

or risks to such species or their habitats 

would be determined. NRCS General 

Manual Title 190 part 410 provides 

guidance on consultation and 

coordination procedures, and defines 

‘‘species of concern’’ as ‘‘any species 

officially designated by law or 

administrative rule by a State or tribe as 

endangered, threatened, rare, declining, 

sensitive, or otherwise at risk.’’ 

Although NRCS is not adding effects 

on these species of concern as a 

condition to whether an action can be 

considered eligible for a categorical 

exclusion, NRCS, in accordance with its 

conservation planning process, ensures 

that implementation of conservation 

practices are protective of these species. 

If a protected species or designated 

critical habitat were present in the 

proposed action area and would 

potentially be adversely affected, then 

the appropriate consultation with the 

Department of Interior’s Fish and 

Wildlife Service, the Department of 

Commerce’s National Marine Fisheries 

Service, or State or tribal agency with 

jurisdiction for such species would be 

initiated to ensure limited effects to 

species and habitats in the area. 

Comment: One respondent noted that 

the categorical exclusions in 

§§ 650.6(d)(8) and 650.6(d)(11) should 

ensure consistency with efforts to 

restore, maintain, or enhance ecosystem 

functions and values. 

Response: NRCS believes that the 

identification of these categorical 

exclusions in the interim final rule for 

lands disturbed by human alteration or 

by natural disasters accomplishes the 

results desired by the respondent. The 

agency mission and policies encompass 

restoring, maintaining, and enhancing 

ecosystem functions and values. 

Accordingly, NRCS has not modified 

the language for these categorical 

exclusions. 

Changes to Final Rule Based on 

Comments 

The interim final rule amended 

650.6(b) and added a new section 

650.6(c) that expanded the agency’s list 

of categorical exclusions. Based on 

public comments expressing the need 

for the agency to add a list of conditions 

under which a proposed action would 

not be eligible for a categorical 

exclusion, the final rule has amended 

section 650.6(c) to add in the list of 

extraordinary circumstances at 

650.6(c)(2) that outlines the conditions 

under which a categorical exclusion 

may make a proposed action not eligible 

for a categorical exclusion. The final 

rule has also added language at 

650.6(c)(3) which outlines certain 

additional criteria that a proposed 

action must satisfy to be eligible for a 

categorical exclusion even when no 

extraordinary circumstances are present. 

In this final rule, the list of 21 

categorical exclusions was moved from 

section 650.6(c) in the interim final rule 

to a new section 650.6(d). Based on 

public comments, NRCS added language 

in 650.6(d) to specify that categorical 

exclusions under NEPA do not waive 

NRCS compliance with any applicable 

legal requirement including, but not 

limited to, the NHPA or the ESA. 

List of Subjects in 7 CFR Part 650 

Environmental impact statements, 

and Flood plains. 

■ For the reasons stated in the preamble, 

NRCS adopts the interim rule published 

on July 13, 2009 (74 FR 33319) as final 

and further amends Title 7 CFR part 650 

as set forth below: 

■ 1. The authority citation for Title 7 

CFR part 650 is amended to read as 

follows: 

Authority: 42 U.S.C. 4321 et seq.; 

Executive Order 11514 (Rev.); 7 CFR 2.62, 

unless otherwise noted. 

■ 2. Section 650.6 is amended by 

revising paragraph (c) and adding a new 

paragraph (d) to read as follows: 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 6557 

§ 650.6 Categorical exclusions. 

* * * * * 

(c)(1) The NRCS restoration and 

conservation actions and activities 

identified in paragraph (d) of this 

section are eligible for categorical 

exclusion and require the RFO to 

document a determination that a 

categorical exclusion applies. Agency 

personnel will use the EE review 

process detailed in § 650.5 to evaluate 

proposed activities for extraordinary 

circumstances and document the 

determination that the categorical 

exclusion applies. The extraordinary 

circumstances address the significance 

criteria provided in 40 CFR 1508.27. 

(2) The extraordinary circumstances 

identified in paragraph (c)(1) of this 

section include: 

(i) The proposed action cannot cause 

significant effects on public health or 

safety. 

(ii) The proposed action cannot 

significantly affect unique 

characteristics of the geographic area 

such as proximity to historic properties 

or cultural resources, park lands, prime 

farmlands, floodplains, wetlands, wild 

and scenic rivers, or ecologically critical 

areas. 

(iii) The effects of the proposed action 

on the quality of the human 

environment cannot be highly 

controversial. 

(iv) The proposed action cannot have 

highly uncertain effects, including 

potential unique or unknown risks on 

the human environment. 

(v) The proposed action cannot 

include activities or conservation 

practices that establish a potential 

precedent for future actions with 

significant impacts. 

(vi) The proposed action is known to 

have or reasonably cannot be expected 

to have potentially significant 

environment impacts to the quality of 

the human environment either 

individually or cumulatively over time. 

(vii) The proposed action cannot 

cause or promote the introduction of 

invasive species or have a significant 

adverse effect on any of the following 

special environmental concerns not 

previously identified in paragraph 

(c)(2)(B) of this section, such as: 

endangered and threatened species, 

environmental justice communities as 

defined in Executive Order 12898, 

wetlands, other waters of the United 

States, wild and scenic rivers, air 

quality, migratory birds, and bald and 

golden eagles. 

(viii) The proposed action will not 

violate Federal or other applicable law 

and requirements for the protection of 

the environment. 

(3) In the absence of any extraordinary 

circumstances as determined through 

NRCS’ EE review process, the activities 

will be able to proceed without 

preparation of an EA or EIS. Where 

extraordinary circumstances are 

determined to exist, the categorical 

exclusion will not apply, and the 

appropriate documentation for 

compliance with NEPA will be 

prepared. Prior to determining that a 

proposed action is categorically 

excluded under paragraph (d) of this 

section, the proposed action must: 

(i) Be designed to mitigate soil 

erosion, sedimentation, and 

downstream flooding; 

(ii) Require disturbed areas to be 

vegetated with adapted species that are 

neither invasive nor noxious; 

(iii) Be based on current Federal 

principals of natural stream dynamics 

and processes, such as those presented 

in the Federal Interagency Stream 

Corridor Restoration Working Group 

document, ‘‘Stream Corridor 

Restoration, Principles, Processes, and 

Practices;’’ 

(iv) Incorporate the applicable NRCS 

conservation practice standards as 

found in the Field Office Technical 

Guide; 

(v) Not require substantial dredging, 

excavation, or placement of fill; and 

(vi) Not involve a significant risk of 

exposure to toxic or hazardous 

substances. 

(d) The use of the following 

categorical exclusions for a proposed 

action does not waive NRCS compliance 

with any applicable legal requirement 

including, but not limited to, the 

National Historical Preservation Act or 

the Endangered Species Act. The 

following categorical exclusions are 

available for application to proposed 

actions provided the conditions 

described in paragraph (c) of this 

section are met: 

(1) Planting appropriate herbaceous 

and woody vegetation, which does not 

include noxious weeds or invasive 

plants, on disturbed sites to restore and 

maintain the sites ecological functions 

and services; 

(2) Removing dikes and associated 

appurtenances (such as culverts, pipes, 

valves, gates, and fencing) to allow 

waters to access floodplains to the 

extent that existed prior to the 

installation of such dikes and associated 

appurtenances; 

(3) Plugging and filling excavated 

drainage ditches to allow hydrologic 

conditions to return to pre-drainage 

conditions to the extent practicable; 

(4) Replacing and repairing existing 

culverts, grade stabilization, and water 

control structures and other small 

structures that were damaged by natural 

disasters where there is no new depth 

required and only minimal dredging, 

excavation, or placement of fill is 

required; 

(5) Restoring the natural topographic 

features of agricultural fields that were 

altered by farming and ranching 

activities for the purpose of restoring 

ecological processes; 

(6) Removing or relocating residential, 

commercial, and other public and 

private buildings and associated 

structures constructed in the 100-year 

floodplain or within the breach 

inundation area of an existing dam or 

other flood control structure in order to 

restore natural hydrologic conditions of 

inundation or saturation, vegetation, or 

reduce hazards posed to public safety; 

(7) Removing storm debris and 

sediment following a natural disaster 

where there is a continuing and eminent 

threat to public health or safety, 

property, and natural and cultural 

resources and removal is necessary to 

restore lands to pre-disaster conditions 

to the extent practicable. Excavation 

will not exceed the pre-disaster 

condition; 

(8) Stabilizing stream banks and 

associated structures to reduce erosion 

through bioengineering techniques 

following a natural disaster to restore 

pre-disaster conditions to the extent 

practicable, e.g., utilization of living and 

nonliving plant materials in 

combination with natural and synthetic 

support materials, such as rocks, riprap, geo-textiles, for slope stabilization, 

erosion reduction, and vegetative 

establishment and establishment of 

appropriate plant communities (bank 

shaping and planting, brush mattresses, 

log, root wad, and boulder stabilization 

methods); 

(9) Repairing or maintenance of 

existing small structures or 

improvements (including structures and 

improvements utilized to restore 

disturbed or altered wetland, riparian, 

in stream, or native habitat conditions). 

Examples of such activities include the 

repair or stabilization of existing stream 

crossings for livestock or human 

passage, levees, culverts, berms, dikes, 

and associated appurtenances; 

(10) Constructing small structures or 

improvements for the restoration of 

wetland, riparian, in stream, or native 

habitats. Examples of activities include 

installation of fences and construction 

of small berms, dikes, and associated 

water control structures; 

(11) Restoring an ecosystem, fish and 

wildlife habitat, biotic community, or 

population of living resources to a 

determinable pre-impact condition; 


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6558 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Rules and Regulations 

(12) Repairing or maintenance of 

existing constructed fish passageways, 

such as fish ladders or spawning areas 

impacted by natural disasters or human 

alteration; 

(13) Repairing, maintaining, or 

installing fish screens to existing 

structures; 

(14) Repairing or maintaining 

principal spillways and appurtenances 

associated with existing serviceable 

dams, originally constructed to NRCS 

standards, in order to meet current 

safety standards. Work will be confined 

to the existing footprint of the dam, and 

no major change in reservoir or 

downstream operations will result; 

(15) Repairing or improving 

(deepening/widening/armoring) existing 

auxiliary/emergency spillways 

associated with dams, originally 

constructed to NRCS standards, in order 

to meet current safety standards. Work 

will be confined to the dam or abutment 

areas, and no major change in reservoir 

or downstream operation will result; 

(16) Repairing embankment slope 

failures on structures, originally built to 

NRCS standards, where the work is 

confined to the embankment or 

abutment areas; 

(17) Increasing the freeboard (which is 

the height from the auxiliary 

(emergency) spillway crest to the top of 

embankment) of an existing dam or 

dike, originally built to NRCS standards, 

by raising the top elevation in order to 

meet current safety and performance 

standards. The purpose of the safety 

standard and associated work is to 

ensure that during extreme rainfall 

events, flows are confined to the 

auxiliary/emergency spillway so that 

the existing structure is not overtopped 

which may result in a catastrophic 

failure. Elevating the top of the dam will 

not result in an increase to lake or 

stream levels. Work will be confined to 

the existing dam and abutment areas, 

and no major change in reservoir 

operations will result. Examples of work 

may include the addition of fill material 

such as earth or gravel or placement of 

parapet walls; 

(18) Modifying existing residential, 

commercial, and other public and 

private buildings to prevent flood 

damages, such as elevating structures or 

sealing basements to comply with 

current State safety standards and 

Federal performance standards; 

(19) Undertaking minor agricultural 

practices to maintain and restore 

ecological conditions in floodplains 

after a natural disaster or on lands 

impacted by human alteration. 

Examples of these practices include: 

mowing, haying, grazing, fencing, offstream watering facilities, and invasive 

species control which are undertaken 

when fish and wildlife are not breeding, 

nesting, rearing young, or during other 

sensitive timeframes; 

(20) Implementing soil control 

measures on existing agricultural lands, 

such as grade stabilization structures 

(pipe drops), sediment basins, terraces, 

grassed waterways, filter strips, riparian 

forest buffer, and critical area planting; 

and 

(21) Implementing water conservation 

activities on existing agricultural lands, 

such as minor irrigation land leveling, 

irrigation water conveyance (pipelines), 

irrigation water control structures, and 

various management practices. 

Signed this 4th day of February, 2010, in 

Washington, DC. 

Dave White, 

Chief, Natural Resources Conservation 

Service. 

[FR Doc. 2010–2815 Filed 2–9–10; 8:45 am] 

BILLING CODE 3410–16–P 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Part 706 

RIN 3133–AD47 

Unfair or Deceptive Acts or Practices 

AGENCY: National Credit Union 

Administration (NCUA). 

ACTION: Final rule; withdrawal. 

SUMMARY: On January 29, 2009, jointly 

with the Federal Reserve System Board 

of Governors (FRB) and the Office of 

Thrift Supervision (OTS), the NCUA 

Board (Board) published a final rule and 

staff commentary amending its credit 

practices regulations (UDAP Rule). The 

UDAP Rule also included technical 

clarifications and was scheduled to 

become effective on July 1, 2010. The 

Board is now revising the UDAP Rule 

because its stipulations became 

unnecessary due to the enactment of the 

Credit Card Accountability, 

Responsibility, and Disclosure Act of 

2009 (Credit CARD Act) on May 22, 

2009, and amendments to Regulation Z 

implementing the Credit CARD Act that 

will become effective on February 22, 

2010. For procedural reasons, the 

substantive requirements of the UDAP 

Rule will be removed effective July 1, 

2010, but it is the Board’s intent that 

only the technical clarifications become 

effective and that the substantive 

requirements will not take effect. This 

final rule applies only to the NCUA 

Board’s regulations and does not affect 

the rules issued by the OTS and FRB. 

DATES: This rule is effective July 1, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Moisette I. Green, Staff Attorney, Office 

of General Counsel, National Credit 

Union Administration, 1775 Duke 

Street, Alexandria, Virginia 22314– 

3428, or telephone: (703) 518–6540. 

SUPPLEMENTARY INFORMATION: On 

December 18, 2008, NCUA, along with 

the Federal Reserve Board (FRB) and the 

Office of Thrift Supervision, exercised 

its authority under the Federal Trade 

Commission Act (FTC Act) to issue a 

final rule prohibiting unfair acts or 

practices regarding consumer credit 

card accounts. The rule was published 

in the Federal Register on January 29, 

2009, and the effective date for the 

amendments was July 1, 2010. 74 FR 

5498 (January 29, 2009) (UDAP Rule). 

The Credit CARD Act, enacted on 

May 22, 2009, amended the Truth in 

Lending Act (TILA) and established new 

substantive and disclosure requirements 

to establish fair and transparent 

practices pertaining to open-end 

consumer credit plans, including credit 

card accounts. Public Law 111–24, 123 

Stat. 1734 (2009). After consultation 

with NCUA and other Federal financial 

regulators, the FRB amended 12 CFR 

Part 226 and the staff commentary 

(Regulation Z) to implement the Credit 

CARD Act. The Credit CARD Act and 

Regulation Z cover the practices 

regulated in the UDAP Rule, and in 

some instances, expand the UDAP 

Rule’s requirements or consumer 

protections. For example, the UDAP 

Rule prohibited the financing of security 

deposits and fees for the availability of 

a credit card account in excess of 50% 

of the initial credit limit and limited 

how fees that did not exceed the 50% 

limit could be financed. The Credit 

CARD Act prohibits financing any fees 

charged within the first year an openend credit plan in excess of 25% of the 

credit limit from the available credit. In 

as much as the UDAP Rule duplicates, 

overlaps, or conflicts with the Credit 

CARD Act and recent amendments to 

Regulation Z, the NCUA Board believes 

the recent amendments to Part 706 are 

unnecessary and is withdrawing the 

substantive requirements of the UDAP 

Rule. Accordingly, the Board is 

amending Part 706 to remove the 

substantive requirements and retain the 

clarifying technical amendments in the 

UDAP Rule, such as the addition of an 

authority, purpose, and scope section 

and, the removal of the provision for 

State exemptions. 

This revision is applicable only to 

NCUA’s portion of the UDAP Rule. For 

procedural reasons, the substantive 


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