This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

52239 

Vol. 79, No. 170 

Wednesday, September 3, 2014 

DEPARTMENT OF AGRICULTURE 

Farm Service Agency 

7 CFR Parts 761, 762, 763, 764, 765, 

766, 767, 770, 772, 773, 774, and 799 

Commodity Credit Corporation 

7 CFR Part 1436 

Rural Housing Service, Rural 

Business-Cooperative Service, Rural 

Utilities Service, and Farm Service 

Agency 

7 CFR Part 1940 

RIN 0560–AH02 

Environmental Policies and 

Procedures; Compliance with the 

National Environmental Policy Act and 

Related Authorities 

AGENCY: Farm Service Agency, Rural 

Housing Service, Rural BusinessCooperative Service, Rural Utilities 

Service, and Commodity Credit 

Corporation, USDA. 

ACTION: Proposed rule. 

SUMMARY: The Farm Service Agency 

(FSA) proposes to consolidate, update, 

and amend its regulations implementing 

the National Environmental Policy Act 

of 1969, as amended (NEPA). FSA’s 

NEPA regulations have been in place 

since 1980. Significant changes to the 

structure of FSA and the scope of FSA’s 

programs require changes in FSA’s 

NEPA regulations. The proposed 

changes would also better align FSA’s 

NEPA regulations with the President’s 

Council on Environmental Quality 

(CEQ) NEPA regulations and guidance 

and meet the FSA responsibilities for 

periodic review of their categorical 

exclusions. One component of the 

changes proposed to improve the clarity 

and consistency of the regulations, is 

the proposed additions to the existing 

list of categorical exclusions (CatExs). 

CatExs involve actions that typically do 

not result in individual or cumulative 

significant environmental effects or 

impacts and therefore do not merit 

further environmental review in an 

Environmental Assessment (EA) or 

Environmental Impact Statement (EIS). 

This proposed rule would also propose 

to expand and clarify the list of actions 

that require an EA. In addition, this rule 

proposes conforming changes to existing 

references to FSA NEPA regulations in 

other current USDA regulations. The 

revisions to the FSA NEPA 

implementing regulations are intended 

to improve transparency and clarity of 

the FSA NEPA process for FSA program 

participants and to provide for a more 

efficient environmental review that will 

lead to better decisions and outcomes 

for stakeholders and the environment. 

DATES: We will consider comments that 

we receive by December 2, 2014. 

ADDRESSES: We invite you to submit 

comments on this proposed rule and the 

information collection. In your 

comment, specify RIN 0560–AH02 and 

the volume, date, and page number of 

this issue of the Federal Register. You 

may submit comments by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail, Hand Delivery, or Courier: 

Nell Fuller, Conservation and 

Environmental Program Division, FSA, 

USDA, Mail Stop 0513, 1400 

Independence Avenue SW., 

Washington, DC 20250–0513. 

FSA will post all comments received 

without change, including any personal 

information that is included with the 

comments, on http:// 

www.regulations.gov. Comments will be 

available for inspection online at http:// 

www.regulations.gov and at the address 

listed above between 8:00 a.m. and 4:30 

p.m., Monday through Friday, except 

holidays. A copy of this proposed rule 

is also available through the FSA 

homepage at http://www.fsa.usda.gov/. 

FOR FURTHER INFORMATION CONTACT: Nell 

Fuller; telephone (202) 720–6303. 

Persons with disabilities or who require 

alternative means for communication 

should contact the USDA Target Center 

at (202) 720–2600. 

SUPPLEMENTARY INFORMATION: 

Background—NEPA 

NEPA (Pub. L. 91–190, 42 U.S.C. 

4321–4370) establishes a national 

environmental policy, sets goals for the 

protection, maintenance, and 

enhancement of the environment and 

provides a process for carrying out the 

policy and working toward those policy 

goals. The NEPA process requires 

different levels of environmental review 

and analysis of Federal agency actions, 

depending on the nature of the action. 

As stated in 40 CFR 1508.18(a), actions 

include new and continuing activities, 

including projects and programs 

entirely or partly financed, assisted, 

conducted, regulated, or approved by 

federal agencies; new or revised agency 

rules, regulations, plans, policies, or 

procedures; and legislative proposals. 

Some actions, because of the nature of 

their potential environmental effects are 

categorically excluded from further 

environmental analysis and are known 

as CatExs. If an action is not 

categorically excluded, additional 

review will be performed either through 

an EA, or, where the circumstances 

warrant, a more rigorous EIS to ensure 

that the additional time and analysis is 

both expeditious and serves to better 

inform the decision at hand. Rules 

specifying the requirements for NEPA 

analysis are in government-wide NEPA 

regulations issued by CEQ and available 

at 40 CFR parts 1500 through 1508, and 

in individual agency regulations, 

including the Department of 

Agriculture’s NEPA implementing 

regulations (7 CFR part 1b). The scope 

of this proposed rule is to update the 

FSA NEPA implementing regulations. 

A CatEx is used typically for actions 

that do not have a significant impact on 

the quality of the human environment, 

such as a farm loan consolidation or 

funding for the maintenance of existing 

buildings. The general NEPA 

regulations define the human 

environment as ‘‘the natural and 

physical environment, and the 

relationship of people with that 

environment’’ (40 CFR 1508.14). 

Individual actions are not categorically 

excluded by this rulemaking; in the 

future, those actions that fit into a 

specific category can be categorically 

excluded if there are no extraordinary 

circumstances for the specific proposed 

action at hand. If an action is not in a 

categorically excluded category, then 

the next step in the NEPA process is 

usually an EA. An EA is prepared to 

analyze the potential environmental 

impact of a Federal agency action and 


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52240 Federal Register / Vol. 79, No. 170 / Wednesday, September 3, 2014 / Proposed Rules 

alternatives to the action to determine 

whether proposed actions can proceed 

without supplemental environmental 

review. An EA can result in a proposal 

not proceeding, a Finding of No 

Significant Impact (FONSI), or a 

determination that the environmental 

impact will be significant and therefore 

an EIS is required. If the agency 

determines at an early stage that there 

is clearly the potential for significant 

environmental impact, FSA can start the 

EIS process without first doing an EA. 

NEPA requires a Federal agency to 

prepare an EIS for any major Federal 

action that significantly affects the 

quality of the human environment (see 

42 U.S.C. 4332(c)). The criteria for what 

constitutes a ‘‘major Federal action 

significantly affecting the quality of the 

human environment’’ are specified in 

the general NEPA regulations that apply 

to all Federal agencies in 40 CFR 

1508.18. The EIS must include a 

detailed evaluation of: 

(1) The environmental impact of the 

proposed action; 

(2) Any adverse environmental effects 

that cannot be avoided; 

(3) Alternatives to the proposed 

action; 

(4) The relationship between the 

local, short-term resource uses and the 

maintenance and enhancement of longterm ecosystem productivity; and 

(5) Any irreversible and irretrievable 

commitments of resources. 

NEPA requires that the environmental 

evaluation must be started once a 

proposal to take an action is concrete 

enough to warrant analysis and must be 

completed at the earliest possible time 

to ensure that planning and 

implementation decisions reflect 

environmental values. The NEPA 

review informs the decision maker and 

the public, and must be completed 

before a decision is made. 

NEPA also establishes the President’s 

Council on Environmental Quality 

(CEQ). Executive Order 11514, 

‘‘Protection and Enhancement of 

Environmental Quality,’’ as amended by 

Executive Order 11991, ‘‘Relating to 

Protection and Enhancement of 

Environmental Quality,’’ directs the 

CEQ to prepare binding regulations 

governing how Federal agencies are to 

implement NEPA. The CEQ NEPA 

regulations (40 CFR parts 1500–1508) 

provide this general regulatory 

framework. 

The CEQ NEPA regulations require 

every Federal agency to develop agencyspecific procedures for implementing 

NEPA. Each Federal agency’s NEPA 

implementing procedures supplement 

the CEQ regulations to address the 

agency’s specific environmental review 

needs. This proposed rule supplements 

the CEQ’s NEPA regulations, and the 

USDA general NEPA regulations at 7 

CFR part 1b, addressing their 

implementation by FSA. 

Background—FSA Organizational 

History 

FSA was created in 1995 by merging 

the former Agricultural Stabilization 

and Conservation Service (ASCS) and 

the farm loan portion of the Farmers 

Home Administration (FmHA); 

currently the Farm Programs and Farm 

Loan Programs, respectively. (As 

required by the Federal Crop Insurance 

Reform and Department of Agriculture 

Reorganization Act of 1994 (Pub. L. 

103–354).) Since that reorganization, 

FSA has been operating under two 

separate sets of NEPA regulations, one 

for the programs within the scope of the 

former ASCS and one for programs 

within the scope of the former FmHA. 

This proposed rule would consolidate, 

clarify, and update FSA NEPA 

regulations to establish a single set of 

NEPA regulations for FSA, and so that 

those regulations reflect current FSA 

organizational structure, environmental 

laws, Executive Orders, and CEQ 

guidance and policy. 

FSA’s scope also includes field 

operations and commodity warehouse 

activities that were included in the 

scope of the former ASCS. These 

activities are categorically excluded as 

inventory, informational, or 

administrative actions under USDA’s 

general NEPA implementing rules in 7 

CFR part 1b and those CatExs would 

continue to be available for application 

by the FSA. This rule would not change 

the USDA department-wide CatExs that 

would apply to FSA programs that 

solely involve those actions or similar 

actions identified in 7 CFR 1b.3. 

Current Structure of NEPA Regulations 

That Apply to FSA; Proposed 

Restructuring 

The Farm Programs part of FSA 

oversees conservation, disaster 

assistance, direct and countercyclical 

payments, price support, farm storage 

facility loans, and commodity loan 

programs. Currently, the NEPA 

regulations governing FSA Farm 

Programs are in 7 CFR part 799. Many 

current FSA programs did not exist in 

1980 and are therefore not specifically 

addressed under the current NEPA 

regulations in 7 CFR part 799. 

The Farm Loan Programs part of FSA 

is responsible for providing direct farm 

loans, guaranteed farm loans, and land 

contract guaranteed loans. Currently, 

the NEPA regulations governing Farm 

Loan Programs are at 7 CFR part 1940, 

subpart G, and apply to FSA farm loans 

and to other USDA activities associated 

with the Rural Housing Service, Rural 

Business-Cooperative Service, and Rural 

Utilities Service, (also formerly part of 

FmHA). These regulations contain 

provisions that refer to programs that 

either no longer exist or are not FSA 

programs. 

FSA is responsible for NEPA 

compliance for the Commodity Credit 

Corporation (CCC) programs that FSA 

administers. FSA currently has no 

separate NEPA regulations for CCC; 

existing FSA NEPA regulations in 7 CFR 

part 799 apply for CCC programs that 

are administered by FSA. Those will be 

included in this rule. 

The proposed rule would implement 

a single consolidated set of FSA NEPA 

regulations in 7 CFR part 799. As a 

result, the regulations in 7 CFR part 

1940, subpart G, would no longer apply 

to FSA, and would be amended 

accordingly. The proposed changes are 

intended to improve clarity in the 

regulations, allow more efficient 

program implementation at the field 

level, provide more openness and 

transparency during FSA’s 

environmental decision-making, and 

simplify program administration. 

The revised part 799 would have six 

subparts, titled ‘‘General FSA 

Implementing Regulations for NEPA,’’ 

‘‘FSA and Program Participant 

Responsibilities,’’ Environmental 

Screening Worksheet,’’ ‘‘Categorical 

Exclusions,’’ ‘‘Environmental 

Assessments,’’ and ‘‘Environmental 

Impact Statements.’’ The ‘‘FSA and 

Program Participant Responsibilities’’ 

subpart would include a summary chart 

of the entire FSA NEPA process. 

Following the discussion of the 

regulatory changes, a summary table 

provides a general comparison of the 

major NEPA provisions, the current 

regulations, and the proposed 

regulation. In general, FSA has already 

administratively implemented FSA 

NEPA procedures to meet current NEPA 

requirements as specified in Executive 

Orders and CEQ guidance; those 

currently implemented FSA NEPA 

procedures are reflected in this rule as 

proposed changes to the regulation. For 

example, Programmatic EAs (PEAs) are 

not in the current regulations, but FSA 

already does such analyses in 

compliance with current CEQ 

regulations and guidance. So, the 

proposed provisions for PEAs represent 

a revision to the regulations, which 

specifically authorize and further 

explain FSA NEPA procedures. A 

detailed crosswalk comparing the 

specific regulatory changes between the 

current FSA regulations and the 


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proposed regulations would not 

accurately reflect the changes in FSA 

NEPA procedures that would impact the 

public. Combining the requirements 

from the existing 7 CFR parts 799 and 

1940 involved significant editing and 

restructuring. This resulted in proposed 

regulations that are significantly 

rewritten, but the underlying FSA NEPA 

procedures remain largely unchanged. 

Therefore, the summary table highlights 

the substantive procedure changes, 

rather than the detailed editorial 

restructuring and removal of obsolete 

provisions. This table is intended to 

provide a quick comparison of the major 

NEPA provisions and show how they 

are treated in both the current 

regulations and the proposed regulation 

to clarify the actual changes that will 

have an impact on the public and the 

actions that FSA funds. 

The CEQ regulations require that 

Federal agencies implement NEPA 

procedures, in part to ‘‘reduce 

paperwork and the accumulation of 

extraneous background data and to 

emphasize real environmental issues 

and alternatives’’ (40 CFR 1500.2(b)). 

FSA believes that the proposed changes 

will meet that requirement, by clarifying 

the procedures for completing EAs and 

EISs, and by expanding and making the 

CatEx list more specific. The changes 

will significantly reduce paperwork and 

allow FSA to focus limited resources on 

real environmental issues and 

alternatives for other actions, as 

appropriate. 

Emergency circumstances will 

continue to be handled consistent with 

40 CFR 1506.11 and applicable CEQ 

guidance. 

Environmental Screening Worksheet 

This rule includes procedures to 

increase transparency and 

accountability of FSA’s NEPA process. 

One of those procedures is a new 

worksheet that will be used to assess the 

need for, and extent of, NEPA 

evaluations for all FSA programs. This 

proposed rule describes the use of the 

new environmental screening worksheet 

(ESW) in the revised 7 CFR part 799, 

subpart C. ESW and the process for 

using it would represent a substantive 

change from current practice. 

Implementation of the ESW would 

consolidate two forms required by 7 

CFR parts 799 and 1940, subpart G, 

reducing total paperwork and ensuring 

better compliance with NEPA. FSA staff 

would use the ESW as an initial 

screening tool to evaluate and document 

any likely environmental impacts of 

proposed actions and determine the 

potential significance and appropriate 

level of NEPA review (CatEx, EA, or 

EIS). For some types of CatEx, 

completion of the ESW will identify the 

CatEx being considered and document 

the determination whether 

extraordinary circumstances exist, and 

will determine whether the CatEx is 

appropriately applied or further NEPA 

review of that proposed action is 

appropriate. The new ESW consolidates 

the evaluation criteria from multiple 

forms and checklists currently used by 

FSA for environmental evaluation. 

Having one form will reduce the 

paperwork for FSA and ensure 

compliance with NEPA. 

As proposed, 7 CFR part 799, subpart 

C, specifies the categories of actions that 

would require the use of the ESW and 

how the ESW would be used. In general, 

the ESW would be required for all 

actions except those CatExs listed in 

§ 799.31, which FSA has determined do 

not require further documentation 

(beyond that provided in the 

substantiation for establishing the CatEx 

and the project file) for specific 

proposed actions. An administrative 

record was created, in consultation with 

CEQ, to substantiate the CatExs in this 

rule. The administrative record includes 

benchmarking CatExs by other 

government agencies and 

documentation from previous FSA 

NEPA analysis of these types of actions. 

The next section of this document 

explains the new categories of CatExs, 

some of which require an ESW. Some 

examples of CatEx actions proposed in 

§ 799.31 that would not require an ESW 

include many loan actions, fence repair, 

and maintenance of existing buildings. 

The list of actions specified in § 799.32 

of this rule may be categorically 

excluded depending on the outcome of 

the review documented in the ESW. 

Those CatEx actions would require an 

ESW to determine if extraordinary 

circumstances exist that require further 

environmental analysis. Some examples 

of these actions that would be analyzed 

with an ESW include loan transfers with 

planned new land disturbance and 

fence installation. 

Extraordinary circumstances, as 

specified in this proposed rule, are 

considered in the context of a specific 

action and include situations with 

potentially significant impacts. If such 

circumstances do exist, then an EA is 

required for an action that would 

otherwise be categorically excluded. 

In addition to its use for NEPA 

review, the ESW would also be required 

for a list of specific actions, specified in 

§ 799.34, that FSA has determined may 

have the potential to affect historic 

properties. This includes actions such 

as operating loans for construction and 

well drilling. 

For all actions for which there is no 

applicable CatEx, the ESW would be 

used to determine whether an EA or an 

EIS is the next step in the NEPA 

process. 

USDA agencies and other Federal 

agencies have similar environmental 

screening tools (for example, USDA’s 

Natural Resources Conservation Service 

(NRCS) and Rural Development, the 

Department of Energy, the Department 

of Defense). FSA reviewed those 

screening tools and considered these 

agencies’ approaches during 

development of the ESW. 

The ESW would replace the existing 

form FSA 850 ‘‘Environmental 

Evaluation Checklist’’ document and the 

RD 1940–22, which local FSA staff and 

County Office Committee reviewers 

have found to be somewhat lengthy, 

confusing, and duplicative paperwork. 

Due to its length and complexity, the 

existing checklist has been used 

inconsistently. The new, more concise 

ESW is designed to be applied 

consistently. 

This proposed rule specifies the 

situations in which the ESW would be 

used by FSA. The ESW would be 

completed by FSA field office personnel 

during the review of an application for 

any FSA program, unless the program is 

categorically excluded from further 

NEPA analysis without documentation 

in an ESW, or FSA receives technical 

assistance with the environmental 

evaluation from USDA or another 

Federal agency that can be used in place 

of the ESW. For example, FSA often 

receives technical assistance from 

NRCS, which uses its own evaluation 

form. The NRCS form provides the same 

information as the ESW and therefore is 

used instead of the ESW when NRCS 

supplies FSA technical assistance. The 

use of the new FSA ESW as specified in 

this rule is expected to make overall 

action planning, and project-specific 

environmental reviews, more timely and 

cost effective. It is also expected to 

provide more clarity and transparency 

to the environmental review process. 

CatEx Changes 

This proposed rule would update and 

clarify the CatEx requirements that 

apply to FSA programs and group those 

requirements in a new subpart. 

Consistent with CEQ regulations, 

subpart D of the proposed rule specifies 

that a ‘‘categorical exclusion’’ is a 

category of agency actions that normally 

have no individually or cumulatively 

significant effect on the human 

environment (see 7 CFR 799.30). 

Subpart D would provide a longer and 

more specific list of categorically 

excluded actions than is in the current 


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52242 Federal Register / Vol. 79, No. 170 / Wednesday, September 3, 2014 / Proposed Rules 

regulations (see 7 CFR 799.31 and 

799.32). The updated and expanded list 

of CatExs represents a substantive 

change. Many of the actions proposed in 

this rule as CatExs are not explicitly 

listed as CatExs in the current FSA 

NEPA regulation, but have been 

considered as CatExs under the 

Departmental regulations (for example 7 

CFR part 1b(3)(a)(2) activities which 

deal solely with funding programs). In 

the past, some program regulations 

should have been categorically 

excluded, but were not; this rule 

requests public comment on all of the 

proposed CatExs and proposes to add all 

such actions that should have been 

categorically excluded in the FSA NEPA 

regulations. Adding the specific list of 

CatExs to the FSA NEPA regulation 

adds clarity and transparency to the 

NEPA process by consolidating all FSA 

CatExs in a single regulation and by 

providing an opportunity for public 

comment on the CatExs in this proposed 

rule. 

Some of the proposed CatExs are 

similar to the CatExs of other Federal 

agencies and reflect FSA’s experience 

with similar factual circumstances. For 

example, the action of ‘‘fencing’’ is an 

action that FSA has categorized as a 

CatEx that also has been identified as a 

CatEx by other agencies, such as the 

Department of Energy, in their NEPA 

implementing regulations. It has also 

been documented in several FSA EISs 

for the Emergency Conservation 

Program to have no significant impact 

on the environment. Other new CatExs 

are more specific to FSA and reflect 

FSA’s past experience with similar 

factual circumstances. These CatExs 

have been found to have no potential to 

produce significant environmental 

impacts on the human environment 

based on past NEPA documentation by 

FSA environmental experts and their 

review of the impacts for implementing 

those actions. For example, many of the 

loan program actions conducted by FSA 

such as refinancing, closing cost 

payments, and deferral of loan 

payments, have been shown 

consistently to have no potential to 

significantly impact the human 

environment as a result of the FSA 

action. In addition, those actions are 

categorically excluded in 7 CFR 

1940.310(e)(2) as loan-closing and 

servicing activities. 

There are many CatExs proposed in 

this rule on the basis of the location 

where the specific actions would be 

occurring. For example, various actions 

that would take place within previously 

disturbed or developed farmland, and 

actions on land where the former state 

of the area and its ecological functions 

have already been altered, are 

appropriate for a CatEx. These would 

also include actions on land that has 

been previously cultivated, as long as 

the proposed new action would not 

disturb below the plow zone or amount 

to very limited disturbance. The 

Department of Energy uses this same 

previously disturbed ground criteria as 

an integral component of their CatExs. 

FSA proposes to separate its actions 

into three broad categories with regards 

to categorical exclusion and any further 

required environmental review. As 

explained below, these are actions that 

(1) are automatically excluded from 

further environmental review without 

further documentation, (2) may be 

excluded from further environmental 

review based on the result of the ESW, 

and (3) are not excluded and require 

further environmental review (EA or 

EIS): 

• First, those actions that would be 

categorically excluded from further 

environmental review without 

documentation. There are a total of 71 

of these types of actions proposed in 

this rule and include actions such as 

paying loan closing costs, refinancing 

debt, and a payment to support 

commodity prices with no requirement 

for any action on part of the recipient. 

Most of these type of actions would also 

not be considered as undertakings that 

have potential to affect a historic 

property and therefore would not be 

subject to section 106 of the National 

Historic Preservation Act of 1966 

(NHPA) (16 U.S.C. 470f). FSA may also 

add CatExs to the regulations in the 

future. As specified in this rule, and 

discussed below future CatExs would be 

proposed in the Federal Register with 

an opportunity for public comment (see 

§ 799.35 and 40 CFR 1507.3). FSA will 

consult with CEQ on any new CatExs 

prior to publication, as is the normal 

process for establishing CatExs, and as 

was done with this rule. 

• Second, those actions that would be 

considered as CatExs so long as they are 

documented with an ESW. 

Extraordinary circumstances, as 

specified in this proposed rule, are 

unique to a specific action and include 

situations where an action has 

potentially significant impacts. The 

presence or absence of such 

extraordinary circumstances would be 

determined by the completion of the 

ESW. There are a total of 21 of these 

actions proposed in this rule, including 

actions such as loans for livestock 

purchases, construction in previously 

disturbed areas, grading, shaping, 

leveling, and refilling. These are 

categories of actions where such 

extraordinary circumstances with the 

potential for environmental impact have 

rarely resulted in potentially significant 

effects. In addition, most of these 

actions are not considered as 

undertakings that have the potential to 

affect a historic property and therefore 

would not be subject to section 106 of 

the NHPA. 

• Third, those actions that typically 

have the potential to have a significant 

impact on the human environment but 

for which, as a general matter, 

mitigation measures can be applied to 

decrease the level of significance to 

support a Finding of No Significant 

Impact. For those actions an 

environmental review in the form of an 

EA or EIS will be required and a CatEx 

would not be considered. These would 

be analyzed by completing the ESW and 

using the results to determine the need 

for an EA or an EIS. There are a total 

of 47 of these actions and include 

actions such as pond planning and 

construction, dike planning and 

construction, and operating loans for 

actions with demolition or construction 

planned. If a property is deemed 

historic, these actions are also 

considered as undertakings that have 

the potential to affect a historic property 

and would be subject to section 106 of 

NHPA. Consultation with the State 

Historic Preservation Officer (SHPO), 

Tribal Historic Preservation Officer 

(THPO), Tribal governments, and the 

public will be conducted as appropriate 

based on the location, nature, and scale 

of the action. 

As specified in § 799.35 of this 

proposed rule, the CEQ regulations at 40 

CFR 1507.3, and in CEQ guidance on 

‘‘Establishing, Applying and Revising 

Categorical Exclusions under the 

National Environmental Policy Act 

(NEPA)’’ and published in the Federal 

Register on December 6, 2010 (75 FR 

75628–75638), FSA is required to 

publish a document in the Federal 

Register to announce new CatExs. The 

document must provide no less than 30 

days for public review and comment. 

This proposed rule serves as the notice 

of the new CatExs proposed in this rule, 

and comments are requested for a 90- 

day period on all of the proposed rule, 

including the CatExs specified in 

§§ 799.31 and 799.32. 

The inclusion in the regulations of 

CatExs that were previously not 

explicitly listed as CatExs in the current 

FSA NEPA regulations but were 

previously documented as CatExs in 

their corresponding program regulations 

and FSA handbooks will increase 

transparency and clarity of FSA’s NEPA 

process. The new CatExs added with 

this rule, and the new ESW, will reduce 

the time and effort required for the 


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environmental evaluation of actions that 

in the past required an EA, but almost 

always resulted in a FONSI as the result 

of the EA. 

EA Changes 

The current FSA NEPA regulations in 

7 CFR part 1940, subpart G, have two 

categories of Environmental 

Assessments (Class I and Class II). As 

currently specified by CEQ, there is no 

variation on EA requirements, for 

example, a checklist does not meet the 

definition of an EA (40 CFR 1508.9). 

This proposed regulation has only one 

category of Environmental Assessment, 

which would make the NEPA process 

less complex and consistent with the 

CEQ regulations. This is a substantive 

change in the regulation, but not in the 

current process. 

The current FSA Farm Programs 

NEPA regulations in 7 CFR part 799 do 

not specify the types of actions for 

which an EA is required. This rule 

proposes a specific list of actions for 

which an EA is normally required, in 

addition to the previously discussed list 

of CatExs where an ESW is needed to 

determine if an EA is required (see 7 

CFR 799.31 and 799.32, respectively). 

This rule also proposes the information 

that must be included in an EA (see 7 

CFR 799.42). These provisions would 

help add clarity to the NEPA process. 

This rule proposes to add criteria for 

developing a programmatic EA (PEA) if 

proposed actions in a program 

individually have an insignificant 

environmental impact, but cumulatively 

could have a significant impact (see 7 

CFR 799.40(c)). FSA currently performs 

PEAs under the current regulations. 

FSA’s PEAs are broad NEPA documents 

that examine a program or policy on a 

larger scale and provide an analytical 

framework to examine environmental 

impacts in comprehensive manner 

while providing the basis for future 

proposed actions and site-specific 

analyses (‘‘tiering’’). For example, the 

rulemaking to implement the Voluntary 

Public Access and Habitat Incentive 

Program (VPA–HIP) required State-level 

PEAs for all grant recipients. This 

eliminates the need to review and 

prepare an ESW for each of the 

individual incentives to provide public 

access or implement public access 

related activities for any single parcel of 

land in a State. The PEA process allows 

FSA to identify similar actions that 

share common issues, timing or 

geography; provides a framework for 

future tiered analyses to be consistent 

with one another; shortens development 

time; and reduces funding needs while 

streamlining or eliminating the 

environmental review process for 

certain individual actions analyzed in 

the PEA. 

The use of the amended CatEx lists 

would likely substantially reduce the 

number of EAs that FSA is required to 

complete in a year, as compared to the 

number of EAs that FSA has completed 

in the past. The expected reduction in 

the number of EAs would depend on the 

finding of no extraordinary 

circumstances during the ESW 

analysis—in some cases the ESW 

process could result in a finding that an 

EA is required. Specifically, many Farm 

Loan Programs actions that currently 

require an EA would be categorically 

excluded with documentation required 

using the new ESW process. Some 

would be categorically excluded 

without documentation. 

EIS Changes 

This rule proposes a new subpart on 

the EIS process that consolidates EIS 

requirements from the existing 

regulations and more specifically 

describes the processes involved. As 

proposed in this rule and as required by 

NEPA and CEQ regulations, an EIS 

would be required for the following four 

types of actions: 

• Legislative proposals, not including 

appropriations requests, drafted and 

submitted to Congress by FSA that have 

the potential to have significant impact 

on the quality of the human 

environment, as specified in 40 CFR 

1506.8; 

• Regulations for new programs, if 

through the preparation of an EA, FSA 

has determined that an EIS is necessary; 

• Broad Federal assistance programs 

administered by FSA involving 

significant financial assistance for 

ground disturbing activities or payments 

to program participants that may have 

significant cumulative impacts on the 

human environment or national 

economy; and 

• Ongoing programs that have been 

found through previous environmental 

analyses to have major environmental 

concerns. 

These four categories of actions, while 

more clearly defined in this proposed 

rule than in the current regulations, are 

substantially similar to the requirements 

in the current NEPA regulations for FSA 

Farm Programs in 7 CFR part 799. The 

current NEPA regulations for FSA Farm 

Loan Programs in 7 CFR part 1940, 

subpart G, specify some general criteria 

for determining if an EIS is needed, with 

an emphasis on the location of the 

action (for example, floodplains, 

wetlands). The proposed changes are 

intended to clarify the requirements for 

an EIS, but are not intended to 

substantively change when an EIS is 

required. The changes in this proposed 

rule are not expected to result in a 

change in the number of EISs that FSA 

conducts each year. The proposed 

changes explain more clearly the 

procedures and process FSA will follow 

when preparing an EIS, including 

specific requirements for the 

information that must be included in an 

EIS. This rule also adds specific 

information on the process for 

developing a programmatic EIS, which 

is currently specified in the FSA 

handbooks rather than the regulations. 

As noted earlier, much of that process 

has already been implemented 

administratively. 

Summary of Proposed Substantive 

Changes 

This proposed rule consolidates and 

reorganizes the provisions currently in 7 

CFR parts 799 and 1940, subpart G, into 

a revised 7 CFR part 799, adds longer 

and more specific lists of CatExs and of 

actions requiring an EA, and adds new 

provisions to comply with current CEQ 

guidance. The following table 

summarizes how the major provisions 

in this proposed regulation compare to 

similar provisions in the existing 

regulations. 

TABLE 1—CHANGES FROM CURRENT 7 CFR PARTS 799 AND 1940 TO PROPOSED 7 CFR PART 799 

Major provisions Current 7 CFR part 799 Current 7 CFR part 1940 Proposed 7 CFR part 799 Additional information 

Categorical Exclusions 

(CatEx).

The term categorical exclusion is not used, although there is a list of 

actions not normally requiring an EA or EIS.

Some specific Farm Loan 

Programs actions are 

categorically excluded 

under 7 CFR 

1940.310(d).

Lists all categories of FSA 

actions and separates 

them into three categories: 

• Actions that are always 

CatExs, with no documentation required.

Proposed rule also includes specific process 

for publishing new 

CatExs in the future, including public review 

and comment process. 


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TABLE 1—CHANGES FROM CURRENT 7 CFR PARTS 799 AND 1940 TO PROPOSED 7 CFR PART 799—Continued 

Major provisions Current 7 CFR part 799 Current 7 CFR part 1940 Proposed 7 CFR part 799 Additional information 

• Actions that are categorically excluded with 

documentation in an 

ESW to determine 

whether an extraordinary 

circumstance exists in 

which case an EA would 

be required.

• Actions that cannot be 

CatExs and require the 

completion of the ESW 

to determine if an EA or 

EIS is required.

Environmental Assessments (EAs).Requires NEPA process to 

be followed but does not 

specify which Farm Programs actions require an 

EA.

Requires EAs, depending 

on circumstances, for 

certain Farm Loan Programs actions. See 7 

CFR 1940.311, 312, 

318, and 319.

Eliminates the Class I and 

Class II actions for Farm 

Loan Programs. Lists all 

specific FSA actions that 

require an EA, and 

those that require an 

ESW to determine if an 

EA is required.

Some actions that currently require an EA 

would be categorically 

excluded actions. 

Environmental Impact 

Statements (EIS).

Specifies general categories of FSA Farm 

Programs actions that 

are likely to have a significant impact on the 

environment, and specific programs that are 

not.

Specifies criteria for determining significant impact, with an emphasis 

on floodplains and wetlands. See 7 CFR 

1940.313, 314, and 320.

Specifies the general categories of FSA actions 

that are likely to have a 

significant impact on the 

environment. Specifies 

the content of an EIS 

and the review process.

No change in the types of 

actions for which an EIS 

is required, but more detail on the content and 

review process of an 

EIS. 

Environmental Screening 

Worksheet (ESW).

An appendix provides the 

now obsolete ASCS– 

929 form.

Environmental Evaluation 

(RD 1940–22 (NOTE: 

RD is a successor agency to FmHA)) is required 

to determine if a Class I 

or Class II EA should be 

prepared. See 7 CFR 

1940.317(c).

An ESW would be required for FSA actions 

that fall into a listed 

CatEx requiring documentation to determine if 

an extraordinary circumstance exists and if 

an EA or EIS should be 

prepared.

The description of how to 

use the current FSA Environmental Evaluation 

form (FSA 850) is in the 

handbooks, not the regulations. The ESW is 

shorter and has more 

specific criteria than the 

current FSA 850. 

Programmatic NEPA Process.Not addressed ................... Not addressed specifically, 

although tiering is in 7 

CFR 1940.327.

Specified process for conducting programmatic 

NEPA for FSA programs 

and actions that have a 

national scope.

This is not a new process 

for FSA, but the process 

is currently not specified 

in the FSA regulations. 

Integration of other environmental laws and regulations.NEPA and CEQ’s NEPA 

regulations are the only 

environmental laws and 

regulations referenced.

Some other environmental 

law requirements are 

mentioned, but not in 

detail and with little guidance on how they apply.

Many environmental laws, 

Executive Orders, and 

regulations are added as 

references. Compliance 

with other environmental 

laws such as NHPA is 

explained in detail and 

integrated into the ESW.

FSA already complies with 

the Executive Orders, 

USDA regulations, laws, 

and CEQ guidance listed in the proposed rule, 

but most of those references are not in the 

current regulations. 

Consolidating and Clarifying 

Amendments 

Many of the proposed changes in this 

rule are essentially minor technical and 

clarifying changes, some changes 

reorganize the requirements from the 

current regulations. This section of the 

preamble discusses the technical and 

structural changes to the regulations 

that are intended to increase clarity and 

remove obsolete provisions, but would 

not change requirements for the public 

or change the environmental review 

processes administratively. 

All of the definitions that apply to 

NEPA implementation for FSA Farm 

Programs, Farm Loan Programs, and 

CCC programs administered by FSA 

would be in one section of the 

consolidated regulations, § 799.4. In 

addition to the definitions already in the 

current regulations, this rule proposes to 

add definitions for ‘‘application,’’ 

‘‘construction,’’ ‘‘consultation,’’ 

‘‘environmental screening worksheet,’’ 

‘‘financial assistance,’’ ‘‘historic 

properties,’’ ‘‘memorandum of 

agreement,’’ ‘‘program participant,’’ 

‘‘protected resources,’’ ‘‘State Historic 

Preservation Officer,’’ ‘‘Tribal Historic 

Preservation Officer,’’ and ‘‘wetlands.’’ 

These terms are all already used in 

FSA’s current NEPA implementation 

and Environmental Quality Programs 

handbook (1–EQ); adding them to the 

regulations will provide clarity to the 

FSA NEPA process, but will not change 

the existing process. For example, the 

definition for ‘‘historic properties’’ in 

this rule, includes prehistoric or historic 

districts, sites, buildings, structures or 

objects, which are included in, or 

eligible for inclusion in, the National 

Register of Historic Places, which is 

consistent with the other Federal 

agencies and NHPA (16 U.S.C. 470– 

470x–6) regulations. 


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Similarly, the definition for 

‘‘consultation’’ in this rule includes the 

process of considering the views of 

other participants in the environmental 

review process and seeking agreement 

where feasible is consistent with how 

other USDA agencies (for example, 

NRCS) define ‘‘consultation’’ in their 

NEPA and NHPA regulations. 

As proposed in this rule, all of the 

FSA NEPA compliance responsibilities 

would be specified in 7 CFR part 799. 

The regulations would clarify who is 

responsible for NEPA and NHPA 

compliance at the national level by 

specifying that the Administrator or 

designee will appoint a National 

Environmental Compliance Manager as 

required by 40 CFR 1507.2(a) and a 

Federal Preservation Officer as required 

by section 110 of NHPA (16 U.S.C. 

470hndash;2(a)) and Executive Order 

13287. These are not new 

responsibilities; this would clarify the 

regulations. To update the current 

position titles in FSA, the references to 

State Director from 7 CFR part 1940, 

subpart G, would be changed to State 

Executive Director. Other revised 

provisions would clarify the role of the 

State Environmental Coordinator, to be 

consistent with current practice. 

The requirements for CatExs, EAs, 

and EISs would be organized into 

separate subparts, so that it would be 

clearer which requirements and 

processes apply to each type of 

environmental review. For example, the 

section on ‘‘tiering,’’ a process that is 

relevant to the EIS process but not used 

for EAs or CatExs, would be in the EIS 

subpart, but the requirements for 

‘‘tiering’’ would not change. 

Many of the changes in this proposed 

rule would remove obsolete provisions 

and terminology. For example, 

references to agencies that no longer 

exist would be removed, and replaced 

with references to FSA. This rule would 

also remove references to programs that 

no longer exist (such as the Agricultural 

Conservation Program, Water Bank 

Program, Tobacco Production 

Adjustment Program, Bee Indemnity 

Program, and Naval Stores Program), 

replacing them with more general 

provisions that apply to types of 

programs and actions rather than to 

specific programs. These changes would 

make the regulations clearer, more 

transparent, and up to date, but are not 

substantive changes and should have no 

impact on the NEPA analysis process. 

The current regulations in 7 CFR parts 

799 and 1940, subpart G, have 

numerous exhibits and appendices. 

These include obsolete forms and 

obsolete organizational charts. This rule 

would remove those exhibits and 

appendices, which would not change 

the current process because in most 

cases the referenced items are no longer 

used. This rule would add references in 

§ 799.1, ‘‘Purpose,’’ to several dozen 

relevant environmental laws, Executive 

Orders, and regulations that were 

developed since the current regulations 

were published. References to 

departmental regulations currently 

listed in appendices to 7 CFR part 1940 

would also be moved to this list of 

references. FSA is already required to 

comply with these laws, Executive 

Orders, departmental regulations, and 

regulations of other agencies, so listing 

all of the relevant references in one 

consolidated section would not be a 

change the current practice. 

Conforming Changes 

In addition to the changes discussed 

above, a number of changes would need 

to be made in other related FSA 

regulations. Throughout the FSA 

regulations, references to NEPA 

regulations and environmental 

compliance would be updated to refer to 

7 CFR part 799. Several environmental 

compliance sections would become 

redundant and would be removed. For 

example, the separate environmental 

compliance section for the Farm Storage 

Facility Loan program would be 

removed, because that program is 

subject to the same environmental 

compliance requirements as every other 

FSA program. 

Currently, the Rural Housing Service 

and Rural Business-Cooperative Service 

also use 7 CFR part 1940, subpart G. 

However, exhibit M to subpart G, 

‘‘Implementation Procedures for the 

Conservation of Wetlands and Highly 

Erodible Land Affecting Farmer Program 

Loans and Loans to Indian Tribes and 

Tribal Corporations,’’ is currently only 

used by FSA. The Rural Development 

agencies do not use exhibit M to subpart 

G because the provisions related to 

swampbuster and sodbuster do not 

apply to the Rural Development 

agencies. There are cross references to 

exhibit M throughout subpart G that 

would be unnecessarily complicated to 

change at this time because the goal is 

to remove subpart G when both Rural 

Development and FSA have their own 

replacement regulations in place. 

Therefore, the content of exhibit M to 

subpart G would be replaced with 

references for specific types of 

information, for example, when to refer 

to 7 CFR part 12 or 7 CFR part 799. 

Along with the changes proposed to 

the regulations, FSA will make 

conforming changes to any references to 

7 CFR part 1940, subpart G, for example, 

in forms and handbooks. 

Executive Orders 12866 and 13563 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ 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 (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

The Office of Management and Budget 

(OMB) designated this rule as 

significant under Executive Order 

12866, ‘‘Regulatory Planning and 

Review,’’ and has reviewed this rule. A 

summary of the cost benefit analysis is 

provided below and is available at 

www.regulations.gov and from the 

contact information listed above. 

Clarity of the Regulations 

Executive Order 12866, as 

supplemented by Executive Order 

13563, requires each agency to write all 

rules in plain language. In addition to 

your substantive comments on this 

proposed rule, we invite your comments 

on how to make it easier to understand. 

For example: 

• Are the requirements in the rule 

clearly stated? Are the scope and intent 

of the rule clear? 

• Does the rule contain technical 

language or jargon that is not clear? 

• Is the material logically organized? 

• Would changing the grouping or 

order of sections or adding headings 

make the rule easier to understand? 

• Could we improve clarity by adding 

tables, lists, or diagrams? 

• Would more, but shorter, sections 

be better? Are there specific sections 

that are too long or confusing? 

• What else could we do to make the 

rule easier to understand? 

Summary of Economic Impacts 

This rule is expected to provide both 

quantifiable and qualitative benefits. It 

is expected to provide qualitative 

benefits by improving the efficiency and 

transparency of the NEPA process. By 

consolidating FSA NEPA procedures 

into a single rule and more clearly 

identifying the process required under 

different types of circumstances, this 

rule is expected to increase 

understanding and consistency in 

implementing the NEPA process while 

decreasing the time spent addressing 

NEPA requirements. Confusion in 


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selecting the correct type of NEPA 

analysis can cause unnecessary delays 

in implementing projects and approving 

loans. For example, delay can occur if 

an EA was done but a CatEx could have 

applied. The current number of any 

NEPA analysis errors, as well as the 

delays caused by the lack of clarity and 

consistency in the current rules, is 

difficult to quantify. However, it is clear 

that increasing consistency and 

transparency, and reducing errors and 

uncertainty, will provide public benefit. 

The expanded and clarified list of 

CatExs in this rule is expected to 

generate specific, quantifiable benefits 

associated with reducing the number of 

EAs required. One benefit will be the 

cost savings due to reduced FSA 

workload. The public, including, but 

not limited to, individual program 

participants, lenders, and State agencies 

and organizations, will likely see both 

cost savings and qualitative benefits 

from the reduced time required to 

complete the NEPA process for both 

Farm Programs and Farm Loan 

Programs actions. To estimate the 

impact of fewer EAs, the Cost Benefit 

Analysis uses the assumptions that 

current programs continue and that 

most Farm Loan Programs actions for 

which the current regulation would 

require site level EAs would qualify for 

either CatExs without documentation or 

for CatExs that require the use of the 

ESW. Using these assumptions, the 

proposed NEPA rule changes could 

eliminate, on average, 314 

environmental assessments per year 

based on our analysis of Farm Loan 

Programs EAs done between 2002 and 

2009. In 2008, the average cost to FSA 

for these EAs was estimated at $1,100, 

suggesting an annual savings of 

$345,000 in FSA expenses for 

environmental reviews as a result of this 

rule. 

Actual cost savings may be higher or 

lower than $345,000 in any specific 

year, because the number and types of 

required NEPA analyses in any given 

year depend on participation in the 

specific FSA programs for which NEPA 

applies. For example, the impact for 

Farm Loan Programs depends on how 

many loans are for actions on land that 

has already been disturbed, as opposed 

to those that involve additional 

disturbance such as pond or building 

construction. 

This rule does not change the basic 

requirements for an EIS, so it is not 

expected to result in a change in the 

number of EISs associated with FSA 

programs. Therefore, no costs or 

benefits, other than increased clarity of 

procedure, are expected for the EIS 

process as a result of this rule. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule whenever an agency is required by 

the Administrative Procedure Act (5 

U.S.C. 553) or any other law to publish 

a proposed rule, unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

FSA has determined that this rule 

would not have a significant impact on 

a substantial number of small entities 

for the reasons explained below. 

Consequently, FSA has not prepared a 

regulatory flexibility analysis. 

This rule would generally reduce the 

level of NEPA analysis required for most 

Farm Loan Programs and some Farm 

Programs actions. It should have a 

minor positive effect on small entities, 

including small government entities, by 

reducing the uncertainty and delay 

associated with NEPA compliance. 

Environmental Evaluation 

The Council on Environmental 

Quality regulations do not direct 

agencies to prepare a NEPA analysis or 

document before establishing Agency 

procedures (such as this regulation) that 

supplement the CEQ regulations for 

implementing NEPA. Agencies are 

required to adopt NEPA procedures that 

establish specific criteria for, and 

identification of, three classes of 

actions: Those that normally require 

preparation of an environmental impact 

statement; those that normally require 

preparation of an environmental 

assessment; and those that are 

categorically excluded from further 

NEPA review (40 CFR 1507.3(b)). 

Categorical exclusions are one part of 

those agency procedures, and therefore 

establishing categorical exclusions does 

not require preparation of a NEPA 

analysis or document. Agency NEPA 

procedures are procedural guidance to 

assist agencies in the fulfillment of 

agency responsibilities under NEPA, but 

are not the agency’s final determination 

of what level of NEPA analysis is 

required for a particular proposed 

action. The requirements for 

establishing agency NEPA procedures 

are set forth at 40 CFR 1505.1 and 

1507.3. The determination that 

establishing categorical exclusions does 

not require NEPA analysis and 

documentation has been upheld in 

Heartwood, Inc. v. U.S. Forest Service, 

73 F. Supp. 2d 962, 972–73 (S.D. Ill. 

1999), aff’d, 230 F.3d 947, 954–55 (7th 

Cir. 2000). 

Executive Order 12372 

Executive Order 12372, 

‘‘Intergovernmental Review of Federal 

Programs,’’ requires consultation with 

State and local officials. The objectives 

of the Executive Order are to foster an 

intergovernmental partnership and a 

strengthened Federalism, by relying on 

State and local processes for State and 

local government coordination and 

review of proposed Federal Financial 

assistance and direct Federal 

development. This rule does not 

provide grants, cooperative agreements, 

or any other benefits. Therefore, FSA 

has concluded that this rule does not 

require consultation with State and 

local officials as when USDA provides 

Federal financial assistance or direct 

Federal development (see 7 CFR 

3015.307). Therefore, this rule is not 

subject to Executive Order 12372. 

Executive Order 12988 

This rule has been reviewed in 

accordance with Executive Order 12988, 

‘‘Civil Justice Reform.’’ This rule 

preempts State and local laws, 

regulations, or policies that are in 

conflict with the provisions of this rule. 

The rule will not have retroactive effect. 

Any action under this rule may be 

appealed, consistent with the 

Administrative Procedure Act (Pub. L. 

79–404). Before any judicial action may 

be brought regarding the provisions of 

this rule, all administrative remedies in 

accordance with 7 CFR parts 11 and 780 

must be exhausted. 

Executive Order 13132 

This rule has been reviewed under 

Executive Order 13132, ‘‘Federalism.’’ 

The policies contained in this rule do 

not have any substantial direct effect on 

States, the relationship between the 

Federal government and the States, or 

the distribution of power and 

responsibilities among the various 

levels of government. Nor does this 

proposed rule impose substantial direct 

compliance costs on State and local 

governments. The provisions in this 

proposed rule may impose compliance 

costs on State and local governments, 

but these are not new costs, as the 

provisions in this rule have already 

been implemented as required by per 

various Executive Orders, laws, and 

CEQ guidance. Therefore, consultation 

with the States is not required. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order 13175, ‘‘Consultation 


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and Coordination with Indian Tribal 

Governments.’’ Executive Order 13175 

requires Federal agencies to consult and 

coordinate with tribes on a governmentto-government basis on policies that 

have tribal implications, including 

regulations, legislative comments or 

proposed legislation, and other policy 

statements or actions that have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

FSA has assessed the impact of this 

rule on Indian tribes and determined 

that this rule does not, to our 

knowledge, have tribal implications that 

require tribal consultation under 

Executive Order 13175. If a Tribe 

requests consultation, FSA will work 

with the USDA Office of Tribal 

Relations to ensure meaningful 

consultation is provided where changes, 

additions, and modifications are 

identified for this rule, which are not 

expressly mandated by any law or 

regulation. 

Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandate 

Reform Act of 1995 (UMRA, Pub. L. 

104–4) requires Federal agencies to 

assess the effects of their regulatory 

actions on State, local, or Tribal 

governments, or the private sector. 

Agencies generally must prepare a 

written statement, including a cost 

benefit analysis, for proposed and final 

rules with Federal mandates that may 

result in expenditures of $100 million or 

more in any 1 year for State, local, or 

Tribal governments, in the aggregate, or 

to the private sector. UMRA generally 

requires agencies to consider 

alternatives and adopt the more cost 

effective or least burdensome alternative 

that achieves the objectives of the rule. 

This rule does not contain Federal 

mandates for State, local, or tribal 

governments or for the private sector 

that would result in the addition 

analysis as required by Title II of 

UMRA. Therefore, this rule is not 

subject to the requirements of sections 

202 and 205 of UMRA. 

Federal Assistance Programs 

This rule applies to all Farm Service 

Agency Federal assistance programs 

found in the Catalog of Federal 

Domestic Assistance. 

Paperwork Reduction Act of 1995 

Currently, as specified in 7 CFR 

1940.350, the OMB control number 

approving the NEPA information 

collection, for FSA and the Rural 

Development agencies is 0575–0094. 

The proposed changes to the regulation 

eliminate FSA’s use of the form, RD 

1940–22, Request for Environmental 

Information, previously used by FSA 

and included in that approval. In the 

past, financial institutions completed 

the form RD 1940–22 and submitted the 

form to FSA; that process has been 

revised and that form is no longer used. 

The proposed FSA NEPA regulation 

does not have any information 

collection activities related to the NEPA 

process. An FSA county office employee 

gathers information from soil maps, 

wetland maps, etc. then visits the site. 

The FSA county office employee uses 

the ESW form, which is an internal form 

within FSA only. The ESW is completed 

by the FSA county office staff, with 

relevant information from one or more 

of the following as appropriate: 

completed application, from the visiting 

farmers, and like all other FSA programs 

an AD–1026, which is approved for FSA 

use under OMB control number 0560– 

0185 is required to be on file to comply 

with swampbuster and sodbuster. There 

is no information collection burden for 

this proposed rule because it is 

associated with application for or 

participation in one or more FSA 

programs and that information 

collection burden is approved for each 

respective FSA program, as needed. As 

noted in § 799.42(c), FSA may request a 

program participant to provide 

information for use in an EA. That 

supplemental information will be case 

specific; the primary information comes 

from the information the applicant gave 

to the program itself (already covered by 

PRA) and site visits. Any additional 

information will be specific to the 

action in question. Therefore, it does not 

require additional approval under the 

Paperwork Reduction Act. 

E-Government Act Compliance 

FSA is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. The 

proposed rule and substantiating 

documents, and the final rule when 

approved, will be available on the FSA 

Web site at http://www.fsa.usda.gov/

FSA/webapp?area=home&subject=

ecrc&topic=nep. 

List of Subjects 

7 CFR Part 761 

Accounting, Loan programsagriculture, Rural areas. 

7 CFR Part 762 

Agriculture, Banks, Banking, Credit, 

Loan programs-agriculture, Reporting 

and recordkeeping requirements. 

7 CFR Part 763 

Agriculture, Banks, Banking, Credit, 

Loan programs-agriculture. 

7 CFR Part 764 

Agriculture, Disaster assistance, Loan 

programs-agriculture. 

7 CFR Part 765 

Agriculture, Agricultural 

commodities, Credit, Livestock, Loan 

programs—agriculture. 

7 CFR Part 766 

Agriculture, Agricultural 

commodities, Credit, Livestock, Loan 

programs—agriculture. 

7 CFR Part 767 

Agriculture, Credit, Government 

property, Government property 

management, Indians—loans, Loan 

programs—agriculture. 

7 CFR Part 770 

Credit, Indians, Loan programsagriculture, Reporting and 

recordkeeping requirements. 

7 CFR Part 772 

Agriculture, Credit, Loan programsagriculture, Rural areas. 

7 CFR Part 773 

Apples, Loan programs-agriculture. 

7 CFR Part 774 

Loan programs-agriculture, Seeds. 

7 CFR Part 799 

Environmental impact statements. 

7 CFR Part 1436 

Administrative practice and 

procedure, Loan programs-agriculture, 

Penalties, Price support programs, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 1940 

Agriculture, Environmental 

protection, Flood plains, Grant 

programs-agriculture, Grant programshousing and community development, 

Loan programs-agriculture, Loan 

programs-housing and community 

development, Low and moderate 

income housing, Reporting and 

recordkeeping requirements, Rural 

areas, Truth in lending. 

For the reasons discussed in the 

preamble, FSA proposes to amend 7 

CFR chapters VII, XIV, and XVIII as 

follows: 


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7 CFR Chapter VII 

PART 761—FARM LOAN PROGRAMS; 

GENERAL PROGRAM 

ADMINISTRATION 

■ 1. The authority citation for part 761 

would continue to read as follows: 

Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. 

§ 761.10 [Amended] 

■ 2. Amend § 761.10(c)(3) by removing 

the words ‘‘subpart G of 7 CFR part 

1940’’ and adding the words ‘‘part 799 

of this chapter’’ in their place. 

PART 762—GUARANTEED FARM 

LOANS 

■ 3. The authority citation for part 762 

continues to read as follows: 

Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. 

§ 762.128 [Amended] 

■ 4. Amend § 762.128 as follows: 

■ a. In paragraph (a) remove the words 

‘‘part 1940, subpart G, of this title’’ and 

add the words ‘‘part 799 of this chapter’’ 

in their place; and 

■ b. In paragraph (c)(3) remove the 

words ‘‘part 1940, subpart G’’ and add 

the words ‘‘part 799 of this chapter’’ in 

their place. 

PART 763—LAND CONTRACT 

GUARANTEE PROGRAM 

■ 5. The authority citation for part 763 

continues to read as follows: 

Authority: 5 U.S.C. 501 and 7 U.S.C. 1989. 

§ 763.7 [Amended] 

■ 6. In § 763.7(b)(12) remove the words 

‘‘part 1940, subpart G, of this title’’ and 

add the words ‘‘part 799 of this chapter’’ 

in their place. 

§ 763.16 [Amended] 

■ 7. In § 763.16(a) remove the words 

‘‘part 799 and part 1940, subpart G, of 

this title’’ and add the words ‘‘part 799 

of this chapter’’ in their place. 

PART 764—DIRECT LOAN MAKING 

■ 8. The authority citation for part 764 

continues to read as follows: 

Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. 

§§ 764.51 and 764.106 [Amended] 

■ 9. Amend §§ 764.51(b)(7) and 

764.106(b) by removing the words 

‘‘subpart G of 7 CFR part 1940’’ and 

adding the words ‘‘part 799 of this 

chapter’’ in their place. 

PART 765—DIRECT LOAN 

SERVICING—REGULAR 

■ 10. The authority citation for part 765 

continues to read as follows: 

Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. 

§§ 765.205, 765.252, and 765.351 

[Amended] 

■ 11. Amend §§ 765.205, 765.252, and 

765.351 by removing the words 

‘‘subpart G of 7 CFR part 1940’’ and 

adding the words ‘‘part 799 of this 

chapter’’ in their place in the following 

places: 

■ a. In § 765.205(a)(3); 

■ b. § 765.252(b)(3)(ii); and 

■ c. § 765.351(a)(6). 

PART 766—DIRECT LOAN 

SERVICING—SPECIAL 

■ 12. Revise the authority citation for 

part 766 to read as follows: 

Authority: 5 U.S.C. 301, 7 U.S.C. 1989, 

and 1981d(c). 

Subpart C—Loan Servicing Programs 

§§ 766.102 and 766.112 [Amended] 

■ 13. Amend §§ 766.102(a)(5) and 

766.112(b)(2) by removing the words 

‘‘subpart G of 7 CFR part 1940’’ and 

adding the words ‘‘part 799 of this 

chapter’’ in their place. 

PART 767—INVENTORY PROPERTY 

MANAGEMENT 

■ 14. The authority citation for part 767 

continues to read as follows: 

Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. 

§ 767.201 [Amended] 

■ 15. Amend § 767.201, introductory 

text, by removing the words ‘‘subpart G 

of 7 CFR part 1940’’ and adding the 

words ‘‘part 799 of this chapter’’ in their 

place. 

PART 770—INDIAN TRIBAL LAND 

ACQUISITION LOANS 

■ 16. The authority citation for part 770 

is revised to read as follows: 

Authority: 5 U.S.C. 301 and 25 U.S.C. 488. 

§ 770.5 [Amended] 

■ 17. Amend § 770.5(a) by removing the 

words ‘‘exhibit M to subpart G of part 

1940 of this title’’ and adding the words 

‘‘part 799 of this chapter’’ in their place. 

PART 772—SERVICING MINOR 

PROGRAM LOANS 

■ 18. The authority citation for part 772 

continues to read as follows: 

Authority: 5 U.S.C. 301, 7 U.S.C. 1989, 25 

U.S.C. 490. 

§ 772.4 [Amended] 

■ 19. In § 772.4 remove the words ‘‘7 

CFR part 1940, subpart G and the 

exhibits to that subpart and’’. 

§ 772.6 [Amended] 

■ 20. Amend § 772.6(a)(6) by removing 

the words ‘‘7 CFR part 1940, subpart G’’ 

and adding the words ‘‘part 799 of this 

chapter’’ in their place. 

PART 773—SPECIAL APPLE LOAN 

PROGRAM 

■ 21. The authority citation for part 773 

continues to read as follows: 

Authority: Pub. L. 106–224. 

§ 773.9 [Removed] 

■ 22. Remove § 773.9. 

§ 773.18 [Amended] 

■ 23. Amend § 773.18(a)(3) by removing 

the words ‘‘7 CFR part 1940, subpart G’’ 

and adding the words ‘‘part 799 of this 

chapter’’ in their place. 

PART 774—EMERGENCY LOAN FOR 

SEED PRODUCERS PROGRAM 

■ 24. The authority citation for part 774 

continues to read as follows: 

Authority: Pub. L. 106–224 

§ 774.9 [Removed] 

■ 25. Remove § 774.9. 

§ 774.17 [Amended] 

■ 26. Amend § 774.17(d) by removing 

the words ‘‘7 CFR part 1940, subpart G’’ 

and adding the words ‘‘part 799 of this 

chapter’’ in their place. 

■ 27. Revise part 799 to read as follows: 

PART 799—COMPLIANCE WITH THE 

NATIONAL ENVIRONMENTAL POLICY 

ACT 

Subpart A—General Farm Service Agency 

(FSA) Regulations Implementing NEPA 

Sec. 

799.1 Purpose. 

799.2 FSA environmental policy. 

799.3 Applicability. 

799.4 Abbreviations and definitions. 

Subpart B—FSA and Program Participant 

Responsibilities 

799.5 National office environmental 

responsibilities. 

799.6 FSA State office environmental 

responsibilities. 

799.7 FSA program participant 

responsibilities. 

799.8 Significant environmental effect. 

799.9 Environmental review documents. 

799.10 Administrative records. 

799.11 Actions during NEPA reviews. 

799.12 Emergency circumstances. 

799.13 FSA as lead agency. 

799.14 FSA as cooperating agency. 

799.15 Public involvement in 

environmental review. 

799.16 Scoping. 

799.17 Public meetings. 

799.18 Overview of FSA NEPA process. 


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Subpart C—Environmental Screening 

Worksheet 

799.20 Purpose of environmental screening 

worksheet. 

799.21 [Reserved] 

Subpart D—Categorical Exclusions 

799.30 Purpose of categorical exclusion 

process. 

799.31 Categorical exclusions not requiring 

an environmental screening worksheet. 

799.32 Categorical exclusions requiring an 

environmental screening worksheet. 

799.33 Extraordinary circumstances. 

799.34 Review for extraordinary 

circumstances. 

799.35 Establishing and revising categorical 

exclusions. 

Subpart E—Environmental Assessments 

(EA) 

799.40 Purpose of an EA. 

799.41 When an EA is required. 

799.42 Contents of an EA. 

799.43 Adoption of an EA prepared by 

another entity. 

799.44 Finding of No Significant Impact 

(FONSI). 

Subpart F—Environmental Impact 

Statements 

799.50 Purpose of an EIS. 

799.51 When an EIS is required. 

799.52 Notice of intent to prepare EIS. 

799.53 Contents of an EIS. 

799.54 Draft EIS. 

799.55 Final EIS. 

799.56 Supplemental EIS. 

799.57 Tiering. 

799.58 Adoption of an EIS prepared by 

another entity. 

799.59 Record of Decision. 

Authority: 42 U.S.C. 4321–4370. 

Subpart A—General FSA Implementing 

Regulations for NEPA 

§ 799.1 Purpose. 

(a) This part: 

(1) Explains major U.S. Department of 

Agriculture Farm Service Agency (FSA) 

environmental policies. 

(2) Establishes FSA procedures to 

implement the: 

(i) National Environmental Policy Act 

(NEPA) of 1969, as amended (42 U.S.C. 

4321–4370); 

(ii) Council on Environmental Quality 

(CEQ) regulations (40 CFR parts 1500 

through1518); and 

(iii) United States Department of 

Agriculture (USDA) NEPA regulations 

(§§ 1b.1 through 1b.4 of this title). 

(3) Establishes procedures to ensure 

that FSA complies with other applicable 

laws, regulations, and Executive Orders, 

including but not limited to the 

following: 

(i) American Indian Religious 

Freedom Act (42 U.S.C. 1996); 

(ii) Archaeological and Historic 

Preservation Act (16 U.S.C. 469–469c); 

(iii) Archaeological Resources 

Protection Act of 1979 (16 U.S.C. 470aa– 

470mm); 

(iv) Clean Air Act (42 U.S.C. 7401– 

7671q); 

(v) Clean Water Act (33 U.S.C. 1251– 

1387); 

(vi) Coastal Barrier Resources Act (16 

U.S.C. 3501–3510); 

(vii) Coastal Zone Management Act of 

1972 (CZMA) (16 U.S.C. 1451–1466); 

(viii) Comprehensive Environmental 

Response, Compensation, and Liability 

Act (42 U.S.C. 9601–9675); 

(ix) Endangered Species Act (16 

U.S.C. 1531–1544); 

(x) Farmland Protection Policy Act (7 

U.S.C. 4201–4209); 

(xi) Migratory Bird Treaty Act (16 

U.S.C. 703–712); 

(xii) National Historic Preservation 

Act (NHPA) of 1966, as amended (16 

U.S.C. 470–470x–6), 

(xiii) Native American Graves 

Protection and Repatriation Act (25 

U.S.C. 3001–3013); 

(xiv) Resource Conservation and 

Recovery Act (42 U.S.C. 6901–6992k); 

(xv) Safe Drinking Water Act (42 

U.S.C. 300h–300h.8); 

(xvi) Wild and Scenic Rivers Act (16 

U.S.C. 1271–1287); 

(xvii) Wilderness Act (16 U.S.C. 

1131–1136); 

(xviii) Advisory Council on Historic 

Preservation regulations in 36 CFR part 

800 ‘‘Protection of Historic Properties;’’ 

(xix) USDA, Office of Environmental 

Quality regulations in part 3100 of this 

title, ‘‘Cultural and Environmental 

Quality’’ (see part 190, subpart F, of this 

title, ‘‘Procedures for the Protection of 

Historic and Archaeological Properties,’’ 

for more specific implementation 

procedures); 

(xx) USDA, Natural Resources 

Conservation Service regulations in part 

658 of this title, ‘‘Farmland Protection 

Policy Act;’’ 

(xxi) USDA regulations in part 12 of 

this title, ‘‘Highly Erodible Land and 

Wetland Conservation;’’ 

(xxii) U.S. Department of the Interior, 

National Park Service regulations in 36 

CFR part 60, ‘‘National Register of 

Historic Places;’’ 

(xxiii) U.S. Department of the Interior, 

National Park Service regulations in 36 

CFR part 63, ‘‘Determinations of 

Eligibility for Inclusion in the National 

Register of Historic Places;’’ 

(xxiv) USDA, Departmental 

Regulation 9500–3, ‘‘Land Use Policy;’’ 

(xxv) USDA, Departmental Regulation 

9500–4, ‘‘Fish and Wildlife Policy;’’ 

(xxvi) Executive Order 11514, 

‘‘Protection and Enhancement of 

Environmental Quality;’’ 

(xxvii) Executive Order 11593, 

‘‘Protection and Enhancement of the 

Cultural Environment;’’ 

(xxviii) Executive Order 11988, 

‘‘Floodplain Management;’’ 

(xxix) Executive Order 11990, 

‘‘Protection of Wetlands;’’ 

(xxx) Executive Order 11991, 

‘‘Relating to Protection and 

Enhancement of Environmental 

Quality;’’ 

(xxxi) Executive Order 12898, 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations;’’ 

(xxxii) Executive Order 13007, 

‘‘Indian Sacred Sites;’’ 

(xxxiii) Executive Order 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments;’’ 

(xxxiv) Executive Order 13186, 

‘‘Responsibilities of Federal Agencies to 

Protect Migratory Birds;’’ and 

(xxxv) Executive Order 13287, 

‘‘Preserve America;’’ 

(b) The procedures and requirements 

in this part supplement CEQ and USDA 

regulations; they do not replace or 

supersede them. 

§ 799.2 FSA environmental policy. 

(a) FSA will: 

(1) Use all practical means to protect 

and, where possible, improve the 

quality of the human environment and 

avoid or minimize any adverse 

environmental effects of FSA actions; 

(2) Ensure the requirements of NEPA 

and other State and national 

environmental policies designed to 

protect and manage impacts on the 

human environment are addressed: 

(i) As required by 40 CFR 1501.2, at 

the earliest feasible stage in the 

planning of any FSA action, 

(ii) Concurrently and in a coordinated 

manner, 

(iii) During all stages of the decision 

making process, 

(iv) Using professional and scientific 

integrity in their discussions and 

analyses, identify applicable 

methodologies, and explain the use of 

the best available information, and 

(v) In consultation with all interested 

parties, including Federal, State, and 

Tribal governments; 

(3) Make environmental analysis 

available to the public before decisions 

are finalized though various means 

including posting the analyses on the 

FSA Web site; and 

(4) Ensure that, if an FSA action 

represents one of several phases of a 

larger proposal, the entire proposal is 

the subject of an environmental review 

independent of the phases of funding. If 

the FSA action is one segment of a 


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larger action funded by private parties 

or other governmental agencies, the 

entire action will be used in 

determining the appropriate level of 

FSA environmental review. 

(b) A proposal that consists of more 

than one categorically excluded action 

may be categorically excluded only if all 

components of the action are eligible for 

a single categorical exclusion. 

§ 799.3 Applicability. 

(a) Except as provided for in 

paragraph (b) of this section, this part 

applies to: 

(1) The development or revision of 

FSA rules, regulations, plans, policies, 

or procedures; 

(2) New or continuing FSA actions 

and programs, including Commodity 

Credit Corporation (CCC) programs, 

Farm Loan Programs, and Farm 

Programs; and 

(3) FSA legislative proposals, not 

including appropriations requests, 

developed by FSA or with significant 

FSA cooperation and support. 

(b) This part does not apply to FSA 

programs specifically exempted from 

environmental review by the 

authorizing legislation for those 

programs. 

§ 799.4 Abbreviations and definitions. 

(a) The following abbreviations apply 

to this part: 

CAFO Concentrated Animal Feeding 

Operation. 

CCC Commodity Credit Corporation. 

CEQ Council on Environmental 

Quality. 

EA Environmental Assessment. 

EIS Environmental Impact Statement. 

FONSI Finding of No Significant 

Impact. 

FPO Federal Preservation Officer. 

FSA Farm Service Agency. 

MOU Memorandum of Understanding. 

NECM National Environmental 

Compliance Manager. 

NEPA National Environmental Policy 

Act. 

NHPA National Historic Preservation 

Act. 

NOA Notice of Availability. 

NOI Notice of Intent. 

PEA Programmatic Environmental 

Assessment. 

PEIS Programmatic Environmental 

Impact Statement. 

RAO Responsible Approving Official. 

ROD Record of Decision. 

SEC State Environmental Coordinator. 

SED State Executive Director for FSA. 

SEIS Supplemental Environmental 

Impact Statement. 

SHPO State Historic Preservation 

Officer. 

THPO Tribal Historic Preservation 

Officer. 

USDA United States Department of 

Agriculture. 

(b) The definitions in 40 CFR part 

1508 apply and are supplemented by 

parts 718 and 1400 of this title, and in 

the event of a conflict with the 

definitions in this section will be 

controlling. In addition, the following 

definitions apply to this part: 

Application is the formal process of 

seeking FSA assistance. 

Construction includes building, 

rehabilitation, modification, repair, and 

demolition of facilities, and 

earthmoving actions. 

Consultation is the process of seeking, 

discussing, and considering the views of 

other participants in the environmental 

review process and seeking agreement 

where feasible. 

Environmental screening worksheet is 

the FSA screening procedure used to 

evaluate if a proposed action that can be 

categorically excluded involves 

extraordinary circumstances that could 

produce potential environmental 

impacts, and to evaluate the appropriate 

level and extent of review and analysis 

in an EA or EIS when a CatEx is not 

available. 

Financial assistance is any form of 

loan, loan guarantee, grant, guaranty, 

insurance, payment, rebate, subsidy, or 

any other form of direct or indirect 

Federal monetary assistance. 

Floodplains are the lowland and 

relatively flat areas adjoining inland and 

coastal waters, including flood-prone 

areas of offshore islands, including, at a 

minimum, those that are subject to a 1- 

percent or greater chance of flooding in 

any given year. 

Historic property means any 

prehistoric or historic district, site, 

building, structure, or object included 

in, or eligible for inclusion in, the 

National Register of Historic Places 

maintained by the Secretary of the 

Interior as defined in 36 CFR 800.16. 

Memorandum of Agreement is a 

document that records the terms and 

conditions agreed upon to resolve the 

potential effects of a Federal agency 

action or program. Often used 

interchangeably with Memorandum of 

Understanding. 

Programmatic Environmental 

Assessment (PEA) is an assessment 

prepared when the significance of 

impacts of a program are uncertain to 

assist in making this determination. 

Programmatic Environmental Impact 

Statement (PEIS) is an analysis of the 

potential impacts that could be 

associated with various components of 

a program or action that may not yet be 

clearly defined or even known to 

determine if the program or its various 

components have the potential to 

significantly affect the quality of the 

human environment. 

Program participant is any person, 

agency, or other entity that applies for 

or receives FSA program benefits or 

assistance. 

Protected resources are sensitive 

resources that are protected by laws, 

regulations, or Executive Orders for 

which FSA actions may pose highly 

uncertain and potentially significant 

environmental effects or involve unique 

or unknown environmental risks. 

State Historic Preservation Officer 

(SHPO) is the official appointed or 

designated under the NHPA to 

administer a State historic preservation 

program or a representative to act for the 

SHPO. 

Tribal Historic Preservation Officer 

(THPO) is the Tribal official appointed 

by a Tribe’s chief governing authority or 

designated by a Tribal ordinance or 

preservation program who has assumed 

the responsibilities of the SHPO on 

Tribal lands under the NHPA. 

Wetlands are areas that are inundated 

by surface or ground water with a 

frequency sufficient to support and, 

under normal circumstances, do support 

or would support a prevalence of 

vegetative or aquatic life that requires 

saturated or seasonally saturated soil 

conditions for growth and reproduction. 

Wetlands generally include swamps, 

marshes, bogs, and similar areas, such 

as sloughs, potholes, wet meadows, 

river overflows, mudflats, and natural 

ponds. 

Subpart B—FSA and Program 

Participant Responsibilities 

§ 799.5 National office environmental 

responsibilities. 

(a) The FSA Administrator or 

designee: 

(1) Is the Responsible Federal Officer 

(RFO) for FSA compliance with 

applicable environmental laws, 

regulations, and Executive Orders, 

including NEPA; 

(2) Will ensure responsibilities for 

complying with NEPA are adequately 

delegated to FSA personnel within their 

areas of responsibility at the Federal, 

State, and county levels; 

(3) Will appoint a National 

Environmental Compliance Manager 

(NECM), as required by 40 CFR 

1507.2(a), who reports directly to the 

FSA Administrator; and 

(4) Will appoint a qualified Federal 

Preservation Officer (FPO), as required 

by Executive Order 13287 ‘‘Preserve 

America’’ section 3(e) and by section 

110 of NHPA (16 U.S.C. 470h–2(a)). 

This individual must meet the National 


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Park Service professional qualification 

standards requirements referenced in 36 

CFR part 61 and will report directly to 

the NECM. 

(b) The NECM or designee coordinates 

FSA environmental policies and 

reviews under this part on a national 

basis and is responsible for: 

(1) Ensuring FSA legislative proposals 

and multistate and national programs 

are in compliance with NEPA and other 

applicable environmental and cultural 

resource laws, regulations, and 

Executive Orders; 

(2) Providing education and training 

on implementing NEPA and other 

environmental requirements to 

appropriate FSA personnel; 

(3) Serving as the principal FSA 

advisor to the FSA Administrator on 

NEPA requirements; 

(4) Representing FSA, and serving as 

an intra- and inter- agency liaison, on 

NEPA-related matters on a national 

basis; 

(5) Maintaining a record of FSA 

environmental actions; and 

(6) Ensuring State and county office 

compliance with NEPA and other 

applicable environmental laws, 

regulations, and Executive Orders. 

(c) The FPO or designee coordinates 

NHPA compliance under this part and 

is responsible for: 

(1) Serving as the principal FSA 

advisor to the NECM on NHPA 

requirements; 

(2) Representing FSA, and serving as 

FSA intra- and inter- agency liaison, on 

all NHPA-related matters on a national 

basis; 

(3) Maintaining current FSA program 

guidance on NHPA requirements; 

(4) Maintaining a record of FSA 

environmental actions related to the 

NHPA; and 

(5) Ensuring State and county office 

compliance with the NHPA. 

§ 799.6 FSA State office environmental 

responsibilities. 

(a) FSA State Executive Directors 

(SEDs) or designees are the responsible 

approving officials (RAOs) in their 

respective States and are responsible 

for: 

(1) Ensuring FSA actions within their 

State comply with applicable 

environmental laws, regulations, and 

Executive Orders, including NEPA; and 

(2) Appointing one or more State 

Environmental Coordinators (SECs). 

(b) An SED will not appoint more 

than one SEC for Farm Programs and 

one SEC for Farm Loan Programs in a 

State unless approved in writing by the 

NECM. 

(c) SECs or designees are responsible 

for: 

(1) Serving as the environmental 

compliance coordinators on all 

environmental-related matters within 

their respective State; 

(2) Advising SEDs on environmental 

issues; 

(3) Providing training, in coordination 

with the NECM, on NEPA and other 

environmental compliance requirements 

to appropriate FSA State and county 

office personnel; 

(4) Providing technical assistance on 

environmental-related matters on an 

action-by-action basis to State and 

county office personnel, as needed; 

(5) Developing controls for avoiding 

or mitigating adverse environmental 

impacts and monitoring the 

implementation of those controls; 

(6) Reviewing FSA actions that are not 

categorically excluded from NEPA and 

that require State office approval or 

clearance, and making appropriate 

recommendations to the approving 

official; 

(7) Providing assistance to resolve 

post approval environmental issues at 

the State office level; 

(8) Maintaining decision records for 

State office environmental compliance 

matters; 

(9) Monitoring their respective State’s 

compliance with environmental laws, 

regulations, and Executive Orders; 

(10) Acting as a liaison on FSA State 

office environmental compliance 

matters with the public and other 

Federal, State, and Tribal governments; 

(11) Representing the SED on 

environmental issues as requested; 

(12) Delegating duties under this 

section with the approval of both the 

SED and NECM; and 

(13) Other NEPA related duties as 

assigned. 

(d) County Executive Directors, 

District Directors, and Farm Loan 

Programs loan approval officers or 

designees are responsible for 

compliance with this part within their 

geographical areas. 

§ 799.7 FSA program participant 

responsibilities. 

(a) Potential FSA program 

participants seeking FSA assistance 

must do all of the following, unless the 

action is categorically excluded as 

specified in §§ 799.31 or 799.32: 

(1) Consult with FSA early in the 

application process about potential 

environmental concerns associated with 

program participation. 

(2) Submit applications for all 

Federal, regional, State, and local 

approvals and permits early in the 

planning process. 

(3) Coordinate the submission of 

applications to FSA and other agencies 

(for example, if a conservation plan is 

required the application is also 

submitted to USDA’s Natural Resources 

Conservation Service). 

(4) Work with other appropriate 

Federal, State, and Tribal governments 

to ensure all environmental factors are 

identified and impacts addressed and, 

to the extent possible, mitigated 

consistent with how mitigation is 

defined in 40 CFR 1508.20. 

(5) Inform FSA of other Federal, State, 

and Tribal government environmental 

reviews that have previously been 

completed or required of the program 

participant. 

(6) Provide FSA with a list of all 

parties affected by or interested in the 

proposed action. 

(b) When FSA receives an application 

for assistance or notification that an 

application will be filed, FSA will 

contact the potential program 

participant about the environmental 

information the program participant 

must provide as part of the application 

process. This required information may 

include: 

(1) Design specifications; 

(2) Topographical, aerial, and location 

maps; 

(3) Surveys and assessments 

necessary for determining the impact on 

environmentally sensitive resources 

listed in § 799.33(c); 

(4) Nutrient management plans; and 

(5) Applications and permits for all 

Federal, regional, State and local 

approvals including construction 

permits, storm water run-off and 

operational permits, and engineering 

plans. 

(c) FSA will prepare and make 

available general guidelines for program 

participants that describe the scope and 

level of environmental information 

required for evaluating proposed actions 

and make those available on the FSA 

Web site at http://www.fsa.usda.gov/

FSA/webapp?area=home&subject=ecrc

&topic=nep. 

§ 799.8 Significant environmental effect. 

In determining whether a proposed 

action will have a significant effect on 

the quality of the human environment, 

FSA will consider the action’s potential 

effects in the context of society as a 

whole, the affected region and interests, 

and the locality, and the intensity of the 

potential impact as specified in 40 CFR 

1508.27. 

§ 799.9 Environmental review documents. 

(a) FSA may prepare the following 

documents during the environmental 

review process: 

(1) Environmental screening 

worksheet; 


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(2) Programmatic Environmental 

Assessment (PEA); 

(3) Environmental Assessment (EA); 

(4) Supplemental Environmental 

Assessment; 

(4) Programmatic Environmental 

Impact Statement (PEIS); 

(5) Environmental Impact Statement 

(EIS); 

(6) Supplemental Environmental 

Impact Statement (SEIS); 

(7) Finding of No Significant Impact 

(FONSI); 

(8) Record of Decision (ROD); 

(9) Notice of Intent (NOI) to prepare 

any type of EA or EIS; 

(10) Notice of Availability (NOA) of 

environmental documents for public 

review or comment; 

(11) Notice of public scoping 

meetings; 

(12) Other notices, including those 

required under Executive Order 11988, 

‘‘Floodplain Management,’’ and 

Executive Order 11990, ‘‘Protection of 

Wetlands;’’ 

(13) Memorandums of Agreement or 

Understanding (MOA or MOU), such as 

those for mitigation of adverse effects on 

historic properties as specified in 36 

CFR part 800, ‘‘Protection of Historic 

Properties;’’ and 

(14) Environmental studies, as 

indicated and appropriate. 

(b) [Reserved] 

§ 799.10 Administrative records. 

(a) FSA will maintain an 

administrative record of documents and 

materials FSA created or considered 

during its NEPA decision making 

process for a proposed action and 

referenced as such in the NEPA 

documentation, which can include any 

or all the following: 

(1) All NEPA environmental review 

documents listed in § 799.9, as 

applicable; 

(2) Technical information, sampling 

results, survey information, engineering 

reports, and studies, including 

environmental impact studies and 

assessments; 

(3) Policies, guidelines, directives, 

and manuals; 

(4) Internal memorandums or 

informational papers; 

(5) Contracts or agreements; 

(6) Notes of telephone conversations 

and meetings, unless they are personal 

notes; 

(7) Meeting minutes; 

(8) Correspondence with agencies and 

stakeholders; 

(9) Communications to and from the 

public; 

(10) Documents and materials that 

contain any information that supports or 

conflicts with the FSA decision; 

(11) Maps, drawings, charts, and 

displays; and 

(12) All public comments received 

during the NEPA comment periods. 

(b) The administrative record may be 

used, among other purposes, to facilitate 

better decision making. 

§ 799.11 Actions during NEPA reviews. 

(a) Except as specified in paragraphs 

(b) and (c) of this section, FSA or a 

program participant must not take any 

action, implement any component of an 

action, or make any final decision 

during FSA’s NEPA review process that 

could have an adverse environmental 

impact or limit the range of alternatives 

until FSA: 

(1) Determines that the proposed 

action is categorically excluded under 

NEPA under subpart D of this part; or 

(2) Issues a FONSI or ROD under 

subpart E or F of this part. 

(b) FSA may approve interim actions 

related to proposed actions provided 

the: 

(1) Interim actions will not have an 

adverse environmental impact; 

(2) Expenditure is necessary to 

maintain a schedule for the proposed 

action; 

(3) Interim actions and expenditures 

will not compromise FSA’s review and 

decision making process; and 

(4) NEPA review has been completed 

for the interim action or expenditure; or 

(c) FSA and program participants may 

develop preliminary plans or designs, or 

perform work necessary to support an 

application for Federal, State, or local 

permits or assistance, during the NEPA 

review process. 

§ 799.12 Emergency circumstances. 

(a) If emergency circumstances exist 

that make it necessary to take action to 

mitigate harm to life, property, or 

important natural, cultural, or historic 

resources, FSA may take an action with 

significant environmental impact 

without complying with the 

requirements of this part. 

(b) If emergency circumstances exist, 

the NECM will consult with CEQ as 

soon as feasible about alternative NEPA 

arrangements for controlling the 

immediate impact of the emergency, as 

specified in 40 CFR 1506.11. 

(c) If emergency circumstances exist, 

the FPO will follow the emergency 

procedures specified in 36 CFR 800.12 

regarding preservation of historic 

properties, if applicable. 

(d) FSA assistance provided in 

response to a Presidentially-declared 

disaster under the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act, as subsequently 

amended, is exempt from NEPA 

requirements, as specified in 42 U.S.C. 

5159. Under a Presidentially-declared 

disaster, the following actions are 

exempt from NEPA and NHPA: 

(1) Clearing roads and constructing 

temporary bridges necessary for 

performing emergency tasks and 

essential community services; 

(2) Debris removal; 

(3) Demolishing unsafe structures that 

endanger the public or could create a 

public health hazard if not demolished; 

(4) Disseminating public information 

and assistance for health and safety 

measures; 

(5) Providing technical assistance to 

State, regional, local, or Tribal 

governments on disaster management 

control; 

(6) Reducing immediate threats to life, 

property, and public health and safety; 

and 

(7) Warning of further risks and 

hazards. 

§ 799.13 FSA as lead agency. 

(a) When FSA acts as the lead agency 

in a NEPA review as specified in 40 CFR 

1501.5, FSA will: 

(1) Coordinate its review with other 

appropriate Federal, State, and Tribal 

governments; and 

(2) Request other agencies to act as 

cooperating agencies as specified in 40 

CFR 1501.6 and defined at 40 CFR 

1508.5 as early in the review process as 

possible. 

(b) If FSA acts as a lead agency for a 

proposed action that affects more than 

one State, the NECM will designate one 

SEC to act as RAO. 

(c) If the role of lead agency is 

disputed, the RAO will refer the matter 

to the FSA Administrator, who will 

attempt to resolve the matter with the 

other agency. If the Federal agencies 

cannot agree which will serve as the 

lead agency, the FSA Administrator will 

follow the procedures specified in 40 

CFR 1501.5(e) to request that CEQ 

determine the lead agency. 

§ 799.14 FSA as cooperating agency. 

(a) FSA will act as a cooperating 

agency if requested by another agency, 

as specified in 40 CFR 1501.6 and 

defined at 40 CFR 1508.5. However, 

FSA may decline another agency’s 

request if FSA determines the proposed 

action does not fall within FSA’s area of 

expertise or FSA does not have 

jurisdiction by law. If FSA declines 

such a request to cooperate, that will be 

documented in writing to the requesting 

agency and a copy will be provided to 

CEQ. 

(b) FSA may request to be designated 

as a cooperating agency if another 

agency’s proposed action falls within 

FSA’s area of expertise. 


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§ 799.15 Public involvement in 

environmental review. 

(a) FSA will involve the public in the 

environmental review process as early 

as possible and in a manner consistent 

with 40 CFR 1506.6. To determine the 

appropriate level of public 

participation, FSA will consider: 

(1) The scale of the proposed action 

and its probable effects; 

(2) The likely level of public interest 

and controversy; and 

(3) Advice received from 

knowledgeable parties and experts. 

(b) Depending upon the scale of the 

proposed action, FSA will: 

(1) Coordinate public notices and 

consultation with the U.S. Fish and 

Wildlife Service, USDA’s Natural 

Resources Conservation Service, Federal 

Emergency Management Agency, the 

National Marine Fisheries Service, the 

U.S. Army Corp of Engineers, and other 

agencies, as appropriate, if wetlands, 

floodplains, or endangered species have 

the potential to be impacted; 

(2) Make appropriate environmental 

documents available to interested 

parties on request; 

(3) Publish a Notice of Intent (NOI) to 

prepare an EA or EIS as specified in 

subparts E and F; and 

(4) Publish a Notice of Availability 

(NOA) of draft and final EAs, FONSIs, 

EISs, and RODs as specified in subparts 

E and F. 

(c) If the effects of a proposed action 

are local in nature and the scale of the 

proposed action is likely to generate 

interest and controversy at the local 

level, in addition to the actions 

specified in paragraphs (a) and (b) of 

this section, FSA will: 

(1) Notify appropriate State, local, 

regional, and Tribal governments and 

clearinghouses, and parties and 

organizations, including the State 

Historic Preservation Officer (SHPO) 

and Tribal Historic Preservation Officer 

(THPO), known to have environmental, 

cultural, and economic interests in the 

locality affected by the proposed action; 

and 

(2) Publish notice of the proposed 

action in the local media. 

(d) If the effects of a proposed action 

will set a precedent for future actions 

with potentially widespread effects, or 

the proposed action is highly 

controversial in nature, FSA will 

publish notice of the proposed action in 

the regional or national media, and in 

the Federal Register with a request for 

public comment. The public comment 

period will be not less than 30 days after 

publication in the Federal Register. 

§ 799.16 Scoping. 

(a) FSA will determine the 

appropriate scoping process for the 

NEPA analysis of a proposed action 

based upon the nature, complexity, and 

level of controversy of the proposed 

action. 

(b) As part of its scoping process, FSA 

will: 

(1) Invite appropriate Federal, State, 

and Tribal governments, and other 

interested parties to participate in the 

process, if determined necessary by 

FSA; 

(2) Identify the significant issues to be 

analyzed; 

(3) Identify and eliminate from further 

analysis issues that were determined not 

significant or have been adequately 

addressed in prior environmental 

reviews; 

(4) Determine the roles of lead and 

cooperating agencies, if appropriate; 

(5) Identify any related EAs or EISs; 

(6) Identify other environmental 

reviews and consultation requirements, 

including NHPA requirements and 

State, local, regional, and Tribal 

requirements, so they are integrated into 

the NEPA process; 

(7) Identify the relationship between 

the timing of the environmental review 

process and FSA’s decision making 

process; 

(8) Determine points of contact within 

FSA; and 

(9) Establish time limits for the 

environmental review process. 

(c) FSA may hold public meetings as 

part of the scoping process, if 

appropriate and as time permits. The 

process that FSA will use to determine 

if a public scoping meeting is needed, 

and how such meetings will be 

announced, is specified in § 799.17. 

§ 799.17 Public meetings. 

(a) The NECM will determine if 

public meetings will be held on a 

proposed action to: 

(1) Inform the public about the details 

of a proposed action and its possible 

environmental effects; 

(2) Gather information about the 

public concerns; and 

(3) Resolve, address, or respond to 

issues raised by the public. 

(b) In determining whether to hold a 

public meeting, FSA will consider 

whether: 

(1) There is substantial controversy 

concerning the environmental impact of 

the proposed action; 

(2) There is substantial interest in 

holding a public meeting; and 

(3) Another Federal agency or Tribal 

government has requested a public 

scoping meeting and their request is 

warranted. 

(c) FSA will publish notice of a public 

meeting, including the time, date and 

location of the meeting, in the local 

media or Federal Register, as 

appropriate, at least 15 days before the 

first meeting for EAs and at least 30 

days for EISs. A notice of a public 

scoping meeting may be included in a 

Notice of Intent to prepare an EIS. 

(d) If a NEPA document is to be 

considered at a public meeting, FSA 

will make the appropriate 

documentation available to the public at 

least 15 days before the meeting. 

§ 799.18 Overview of FSA NEPA process. 

If the proposed action: FSA: 

Is an emergency action ............................................................................ Follows the procedures in § 799.12. 

Is exempt from section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)) by 

authorizing legislation for the program.

Implements the action. 

Is categorically excluded under § 799.31(b) or § 1b.3 of this title ............ Implements the action. 

Is an action that has the potential to impact historic properties as specified in § 799.34(b) and therefore requires the completion of an environmental screening worksheet.Completes an environmental screening worksheet to determine if there 

will be an impact on historic properties. FSA will prepare an EA or 

EIS, as indicated, before implementing the action. 

Is a categorically excluded action listed in § 799.32 that requires the 

completion of an environmental screening worksheet.

Completes an environmental screening worksheet to determine whether extraordinary circumstances are present. This review includes a 

determination of whether the action will potentially impact environmentally sensitive resources. If there are no extraordinary circumstances, FSA implements the action; if there are extraordinary 

circumstances, FSA will prepare an EA or EIS, as indicated, before 

implementing the action. 

Involves a category of actions requiring an EA listed in § 799.41 ........... Prepares an EA. 

Involves a category of actions requiring an EIS listed in § 799.51 .......... Prepares an EIS. 


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Subpart C—Environmental Screening 

Worksheet 

§ 799.20 Purpose of environmental 

screening worksheet. 

(a) FSA uses the environmental 

screening worksheet as an initial 

screening tool to evaluate and document 

any likely environmental impacts of a 

proposed action and to determine the 

appropriate type of analysis required. 

(b) The environmental screening 

worksheet is not required for actions 

that are categorically excluded as 

specified in § 799.31(b) or § 1b.3 of this 

title, or for actions where FSA 

determines at an early stage that there 

is clearly the potential for 

environmental impact and therefore an 

EA or EIS is required. 

§ 799.21 [Reserved] 

Subpart D—Categorical Exclusions 

§ 799.30 Purpose of categorical exclusion 

process. 

(a) FSA has determined that the 

categories of actions listed in §§ 799.31 

and 799.32 do not normally 

individually or cumulatively have a 

significant effect on the human 

environment and do not threaten a 

violation of applicable statutory, 

regulatory, or permit requirements for 

environment, safety, and health, 

including requirements of Executive 

Orders and other USDA regulations in 

this chapter. 

(b) If a proposed action falls within 

one of the categories of actions listed in 

§§ 1b.3 of this title, 799.31, or 799.32, 

and there are no extraordinary 

circumstances present as specified in 

§ 799.33, then the action is categorically 

excluded from the requirements to 

prepare an EA or an EIS. 

§ 799.31 Categorical exclusions not 

requiring an environmental screening 

worksheet. 

(a) Actions that fit within a category 

of action listed in paragraph (b) of this 

section may be categorically excluded if 

there are no extraordinary 

circumstances as specified in § 799.33. 

Unless otherwise noted in paragraph (b) 

of this section, the proposed actions 

listed in paragraph (b) of this section 

also do not have the potential to cause 

effects to historic properties, and will 

therefore not be reviewed for 

compliance with section 106 of NHPA 

(16 U.S.C. 470f) or its implementing 

regulations, 36 CFR part 800. 

(b) The following actions are 

categorically excluded without the need 

to complete an environmental screening 

worksheet. However, some actions may 

require other Federal consultation as 

indicated. These actions are grouped 

into broader categories of similar types 

of actions. Based on FSA’s previous 

experience implementing these actions 

and similar actions through the 

completion of EAs, these actions are 

categorically excluded. Those actions 

that are similar in nature and intent to 

those listed below and not listed in 

§§ 799.32 or 799.33, will be considered 

a categorical exclusion in this category: 

(1) Loan actions. The following list 

includes examples of categorical 

exclusions for certain types of FSA 

loans and actions related to FSA loans. 

Certain types of FSA loans and loan 

actions typically involve limited or no 

ground disturbance. Therefore, the 

following list includes those types of 

FSA loans and loan actions that are 

categorically excluded. 

(i) Closing cost payments; 

(ii) Commodity loans; 

(iii) Debt set asides; 

(iv) Deferral of loan payments; 

(v) Income producing projects 

associated with youth loans; 

(vi) Loan consolidation; 

(vii) Loans for annual operating 

expenses, except livestock; 

(viii) Loans for equipment; 

(ix) Loans for family living expenses; 

(x) Loan subordination, with no or 

minimal construction or change in 

operations (may require NHPA 

consultation under section 106 of NHPA 

(16 U.S.C. 470f)); 

(xi) Loans to pay for labor costs; 

(xii) Loan (debt) transfers and 

assumptions with no new ground 

disturbance; 

(xiii) Partial or complete release of 

loan collateral; 

(xiv) Re-amortization of loans; 

(xv) Refinancing of debt; 

(xvi) Rescheduling loans; 

(xvii) Restructuring of loans; and 

(xviii) Writing down of debt; 

(2) Repair, improvement, or minor 

modification actions. The following list 

includes examples of categorical 

exclusions for proposed repair, 

improvement, or minor modification 

actions. Each of the following actions 

typically has no significant impact on 

the quality of the human environment 

based on previous FSA analysis and 

FSA compliance experience for actions 

in this category. These actions typically 

involve limited or no ground 

disturbance. 

(i) Fence repair; and 

(ii) Improvement or repair of farmrelated structures under 50 years of age 

(if property is older than 50 years NHPA 

consultation will be required under 

section 106 of NHPA (16 U.S.C. 470f); 

(3) Administrative actions. The 

following list includes examples of 

categorically excluded administrative 

actions. These actions involve no 

ground disturbance and are considered 

administrative or operational in nature. 

(i) Issuing technical corrections to 

regulations, handbooks, and internal 

guidance, as well as amendments to 

them; 

(ii) Minor amendments or revisions to 

previously approved projects provided 

such actions do not alter the purpose, 

operation, location, or design of the 

project as originally approved; 

(iii) Personnel actions, reduction-inforce, or employee transfers; and 

(iv) Procurement actions for goods 

and services conducted in accordance 

with Executive Orders; 

(4) Planting actions. The following list 

includes examples of categorical 

exclusions for planting actions that will 

occur on land that has been tilled in the 

past and do not exceed the depth of 

previous tillage. 

(i) Bareland planting or planting 

without site preparation; 

(ii) Bedding site establishment for 

wildlife; 

(iii) Chiseling and subsoiling; 

(iv) Clean tilling firebreaks; 

(v) Conservation crop rotation; 

(vi) Contour farming; 

(vii) Contour grass strip 

establishment; 

(viii) Cover crop and green manure 

crop planting; 

(ix) Critical area planting; 

(x) Firebreak installation; 

(xi) Grass, forbs, or legume planting; 

(xii) Heavy use area protection; 

(xiii) Installation and maintenance of 

field borders or field strips; 

(xiv) Pasture, range, and hayland 

planting; 

(xv) Seeding of shrubs; 

(xvi) Seedling shrub planting; 

(xvii) Site preparation; 

(xviii) Strip cropping; 

(xix) Wildlife food plot planting; and 

(xx) Windbreak and shelterbelt 

establishment; 

(5) Management actions. The 

following list includes examples of land 

and resource management actions. 

(i) Forage harvest management; 

(ii) Integrated crop management; 

(iii) Mulching, including plastic 

mulch; 

(iv) Netting for hard woods; 

(v) Nutrient management; 

(vi) Obstruction removal; 

(vii) Pest management; 

(viii) Plant grafting; 

(ix) Plugging artesian wells; 

(x) Residue management including 

seasonal management; 

(xi) Roof runoff management (if 

property is older than 50 years NHPA 

consultation will be required under 

section 106 of NHPA (16 U.S.C. 470f); 


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(xii) Thinning and pruning of plants; 

(xiii) Toxic salt reduction; and 

(xiv) Water spreading; 

(6) Other FSA actions. The following 

list includes examples of categorical 

exclusions for other FSA actions. 

(i) Conservation easement purchases 

with no construction planned; 

(ii) Emergency program actions 

(including Emergency Conservation 

Program and Emergency Forest 

Restoration Program) that have a cost 

share of less than $5,000; 

(iii) Financial assistance to 

supplement income, manage the supply 

of agricultural commodities, influence 

the cost and supply of such 

commodities or programs of a similar 

nature or intent; 

(iv) Individual farm participation in 

FSA programs where no ground 

disturbance or change in land use 

occurs as a result of the action or 

participation; 

(v) Inventory property disposal or 

lease with protective easements or 

covenants; 

(vi) Issuance of grants under the 

Voluntary Public Access and Habitat 

Incentive Program; 

(vii) Safety net programs administered 

by FSA; 

(viii) Site characterization, 

environmental testing, and monitoring 

where no significant alteration of 

existing ambient conditions would 

occur, including air, surface water, 

groundwater, wind, soil, or rock core 

sampling; installation of monitoring 

wells; installation of small scale air, 

water, or weather monitoring 

equipment; 

(ix) Stand analysis for forest 

management planning; and 

(x) Tree protection including plastic 

tubes. 

§ 799.32 Categorical exclusions requiring 

an environmental screening worksheet. 

(a) The actions listed in paragraph (b) 

of this section are eligible for categorical 

exclusion after completion of an 

environmental screening worksheet to 

document that an action does not 

involve any of the extraordinary 

circumstances specified in § 799.33. 

Unless otherwise noted in paragraph (b) 

of this section, the actions listed in 

paragraph (b) also do not have the 

potential to cause effects to historic 

properties and will therefore not be 

reviewed for compliance with section 

106 of NHPA or its implementing 

regulations, 36 CFR part 800. 

(b) The following actions are eligible 

for categorical exclusion with 

completion of an environmental 

screening worksheet. These actions are 

grouped into broader categories of 

similar types of actions: 

(1) Loan actions. The following list 

includes examples of types of loans and 

loan actions for which an environmental 

screening worksheet will be required. 

(i) Farm storage and drying facility 

loans for added capacity; 

(ii) Loans for livestock purchases; 

(iii) Release of loan for forestry 

improvements; 

(iv) Reorganizing farm operations (if 

new construction is planned or 

buildings over 50 years will be 

impacted, NHPA consultation will be 

required under section 106 of NHPA (16 

U.S.C. 470f)); and 

(v) Replacement building loans (if 

property is older than 50 years NHPA 

consultation will be required under 

section 106 of NHPA (16 U.S.C. 470f)); 

(2) Limited construction or repair 

actions. The following list includes 

examples of limited construction or 

repair actions in areas of previous 

disturbance and actions that will not 

impact soil below previous level of 

disturbance. 

(i) Construction in previously 

disturbed areas; 

(ii) Construction involving an 

addition (if property is older than 50 

years NHPA consultation will be 

required under section 106 of NHPA (16 

U.S.C. 470f)); 

(iii) Drain tile replacement; 

(iv) Erosion control measures; 

(v) Grading, leveling, shaping, and 

filling; 

(vi) Grassed waterway establishment; 

(vii) Hillside ditches; (may require 

NHPA consultation under section 106 of 

NHPA (16 U.S.C. 470f)); 

(viii) Land-clearing operations of no 

more than 15 acres, provided any 

amount of land involved in tree 

harvesting is to be conducted on a 

sustainable basis and according to a 

Federal, State, Tribal, or other 

governmental unit approved forestry 

management plan (may require NHPA 

consultation under section 106 of NHPA 

(16 U.S.C. 470f)); 

(ix) Permanent establishment of a 

water source for wildlife; 

(x) Restoring and replacing property 

(if property is older than 50 years NHPA 

consultation will be required under 

section 106 of NHPA (16 U.S.C. 470f)); 

(xi) Soil and water development; 

(xii) Spring development; 

(xiii) Trough or tank installation; and 

(iiv) Water harvesting catchment; and 

(3) Other FSA actions. The following 

list includes examples of other FSA 

actions for which an environmental 

screening worksheet will be required. 

(i) Fence installation and 

replacement; 

(ii) Fish stream improvement; 

(iii) Grazing land mechanical 

treatment; (if disturbance will be below 

plow zone NHPA consultation will be 

required under section 106 of NHPA (16 

U.S.C. 470f)); and 

(iv) Herbicide, insecticide, fungicide, 

or mineral application; 

(v) Inventory property disposal or 

lease without protective easements or 

covenants (this action has the potential 

to cause effects to historic properties 

and therefore requires analysis under 

section 106 of NHPA (16 U.S.C. 470f)). 

§ 799.33 Extraordinary circumstances. 

(a) Extraordinary circumstances are 

unique situations presented by specific 

proposals. Extraordinary circumstances 

include, but are not limited to: 

(1) Scientific controversy about 

environmental effects of the proposal; 

and 

(2) Uncertain effects or effects 

involving unique or unknown risks. 

(b) A categorical exclusion is possible 

in situations specified in paragraph (a) 

of this section only if the proposal: 

(1) Is also not ‘‘connected’’ (as 

specified in 40 CFR 1508.25(a)(1)) to 

other actions with potentially 

significant impacts, 

(2) Is not related to other proposed 

actions with cumulatively significant 

impacts (40 CFR 1508.25(a)(2)), and 

(3) Complies with 40 CFR 1506.1, 

‘‘Limitations on actions during NEPA 

process.’’ 

(c) FSA will use an environmental 

screening worksheet (ESW) to review 

proposed actions that are eligible for 

categorical exclusion to determine if 

extraordinary circumstances exist that 

could impact environmentally sensitive 

resources. If extraordinary 

circumstances exist, then an EA or EIS 

will be prepared as specified in this 

part. 

(d) Environmentally sensitive 

resources include, but are not limited to: 

(1) Property (for example, sites, 

buildings, structures, and objects) of 

historic, archeological, or architectural 

significance designated by Federal, 

Tribal, State, or local governments or 

property eligible for listing on the 

National Register of Historic Places; 

(2) Federally-listed threatened or 

endangered species or their habitat 

(including critical habitat), Federallyproposed or candidate species or their 

habitat, or State-listed endangered or 

threatened species or their habitat; 

(3) Important and prime agricultural, 

forest, and range lands, as specified in 

part 657 of this chapter and in USDA 

Departmental Regulation 9500–3; 

(4) Wetlands regulated under the 

Clean Water Act (33 U.S.C. 1344), 

highly erodible land, and floodplains; 

(5) Areas having a special designation, 

such as Federally- and State-designated 


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wilderness areas, national parks, 

national natural landmarks, wild and 

scenic rivers, State and Federal wildlife 

refuges, and marine sanctuaries; and 

(6) Special sources of water such as 

sole-source aquifers, wellhead 

protection areas, and other water 

sources that are vital in a region. 

§ 799.34 Review for extraordinary 

circumstances. 

(a) FSA will complete an 

environmental screening worksheet for 

proposed actions that fall within the list 

of categorical exclusions specified in 

§ 799.32 to determine whether 

extraordinary circumstances under 

§ 799.33 are present. 

(b) FSA or an authorized technical 

representative will also complete an 

ESW to determine whether to prepare 

an EA or EIS for the following actions, 

unless technical assistance is provided 

by another Federal agency that uses its 

own environmental screening 

documentation and provide the 

information called for in an ESW. These 

actions have the potential to cause 

effects to historic properties, and 

therefore analysis is required for 

compliance under section 106 of the 

NHPA (16 U.S.C. 470f). FSA will 

comply with 36 CFR part 800, 

‘‘Protection of Historic Properties,’’ 

when reviewing the environmental 

impact of these actions. If an authorized 

technical representative from another 

Federal agency assists with compliance 

with 36 CFR part 800, FSA will remain 

responsible for any consultation with 

SHPO, THPO, or Tribal governments. 

These actions are grouped into broader 

categories of similar types of actions. All 

of the categories include, but are not 

limited to, the specific actions listed in 

this section; other actions that are 

similar in nature will also require 

review for extraordinary circumstances 

that would require either an EA or EIS: 

(1) Loan actions. Although most loan 

actions are addressed in §§ 799.31 and 

799.32, the following actions have the 

potential for significant impacts on 

resources. Additional environmental 

review will therefore be necessary. An 

environmental screening worksheet 

must be completed to determine if an 

EA or EIS should be completed. 

(i) Loans and loan subordination with 

construction, demolition, or ground 

disturbance planned; 

(ii) Real estate purchase loans with 

new ground disturbance planned; and 

(iii) Term operating loans with 

construction or demolition planned; 

(2) Construction with ground 

disturbance actions. The following list 

includes examples of construction 

actions for which an environmental 

screening worksheet will be required to 

determine if an EA or EIS will be 

needed. The ground disturbance of the 

construction actions in this category 

have the potential for impacts and 

therefore additional environmental 

review is required. 

(i) Animal trails and walkways; 

(ii) Bridges; 

(iii) Chiseling and subsoiling in areas 

not previously tilled; 

(iv) Construction of a new farm 

storage facility; 

(v) Dams; 

(vi) Dikes and levees; 

(vii) Diversions; 

(viii) Drop spillways; 

(ix) Dugouts; 

(x) Excavation; 

(xi) Grade stabilization structures; 

(xii) Grading, leveling, shaping and 

filling in areas not previously disturbed; 

(xiii) Installation of structures 

designed to regulate water flow such as 

pipes, flashboard risers, gates, chutes, 

and outlets; 

(xiv) Irrigation systems; 

(xv) Land smoothing; 

(xvi) Line waterways or outlets; 

(xvii) Lining; 

(xviii) Livestock crossing facilities; 

(xix) Pesticide containment facility; 

(xx) Pipe drop; 

(xxi) Pipeline for watering facility; 

(xxii) Ponds, including sealing and 

lining; 

(xxiii) Precision land farming with 

ground disturbance; 

(xxiv) Riparian buffer establishment; 

(xxv) Roads, including access roads; 

(xxvi) Rock barriers; 

(xxvii) Rock filled infiltration 

trenches; 

(xxvii) Sediment basin; 

(xxix) Sediment structures; 

(xxx) Site preparation for planting or 

seeding in areas not previously tilled; 

(xxxi) Soil and water conservation 

structures; 

(xxxii) Stream bank and shoreline 

protection; 

(xxxiii) Structures for water control; 

(xxxiv) Subsurface drains; 

(xxxv) Surface roughening; 

(xxxvi) Terracing; 

(xxxvii) Underground outlets; 

(xxxviii) Watering tank or trough 

installation, if in areas not previously 

disturbed; 

(xxxix) Wells; and 

(xl) Wetland restoration; and 

(3) Management and planting type 

actions. The following list includes 

examples of resource management and 

planting actions for which an 

environmental screening worksheet will 

be required to determine if an EA or EIS 

will be needed. The actions in this 

category have been found to have the 

potential for impacts and therefore 

additional environmental review is 

required. 

(i) Establishing or maintaining 

wildlife plots in areas not previously 

tilled or disturbed; 

(ii) Prescribed burning; 

(iii) Tree planting when trees have 

root balls of one gallon container size or 

larger; and 

(iv) Wildlife upland habitat 

management. 

(c) If technical assistance is provided 

by another Federal agency, FSA will 

ensure that the environmental 

documentation provided is 

commensurate to or exceeds the 

requirements of the FSA environmental 

screening worksheet. 

§ 799.35 Establishing and revising 

categorical exclusions. 

(a) As part of the process to establish 

a new categorical exclusion, FSA will 

consider all relevant information, 

including the following: 

(1) Completed FSA NEPA documents; 

(2) Other Federal agency NEPA 

documents on actions that could be 

considered similar to the categorical 

exclusion being considered; 

(3) Results of impact demonstration or 

pilot projects; 

(4) Information from professional 

staff, expert opinion, and scientific 

analyses; and 

(5) The experiences of FSA, private, 

and public parties that have taken 

similar actions. 

(b) FSA will consult with CEQ and 

appropriate Federal agencies while 

developing or modifying a categorical 

exclusion. 

(c) Before establishing a new final 

categorical exclusion, FSA will: 

(1) Publish a notice of the proposed 

categorical exclusion in the Federal 

Register for public review and comment 

for at least 30 calendar days; 

(2) Consider the public comments in 

developing the final categorical 

exclusion; 

(3) Consult with CEQ on the final 

categorical exclusion and obtain a 

written statement from CEQ that the 

final categorical exclusion was 

developed in conformity with NEPA 

requirements and CEQ regulations; 

(4) Publish the final categorical 

exclusion in the Federal Register; and 

(5) Post the final categorical exclusion 

on the FSA Web site. 

(d) FSA will maintain an 

administrative record that includes the 

supporting information and findings 

used in establishing a categorical 

exclusion. 

(e) FSA will periodically review its 

categorical exclusions at least once 


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every seven years to identify and revise 

exclusions that no longer effectively 

reflect environmental circumstances or 

current FSA program scope. 

(f) FSA will use the same process 

specified in this section and the results 

of its periodic reviews to revise a 

categorical exclusion or remove a 

categorical exclusion. 

Subpart E—Environmental 

Assessments 

§ 799.40 Purpose of an EA. 

(a) FSA prepares an EA to determine 

whether a proposed action would 

significantly affect the environment and 

to consider the potential impact of 

reasonable alternatives and the potential 

mitigation measures to the alternatives 

and proposed action. 

(b) FSA may determine that a 

proposed action will significantly affect 

the environment or is environmentally 

controversial without first preparing an 

EA. In that case, FSA will prepare an 

EIS as specified in subpart F of this part. 

(c) FSA will prepare a programmatic 

EA to determine if proposed actions that 

are broad in scope or similar in nature 

have cumulative significant 

environmental impacts, although the 

impacts of the actions may be 

individually insignificant. 

(d) The result of the EA process will 

be either a FONSI or a determination 

that an EIS is required. 

§ 799.41 When an EA is required. 

(a) Actions that require the 

preparation of an EA include the 

following: 

(1) Conservation Reserve 

Enhancement Program (CREP) 

agreements; 

(2) Development of farm ponds or 

lakes greater than or equal to 20 acres; 

(3) Restoration of wetlands greater 

than or equal to 100 acres aggregate; 

(4) Installation or enlargement of 

irrigation facilities, including storage 

reservoirs, diversions, dams, wells, 

pumping plants, canals, pipelines, and 

sprinklers designed to irrigate greater 

than 320 acres aggregate; 

(5) Land clearing operations involving 

greater than or equal to 40 acres 

aggregate; 

(6) Clear cutting operations for timber 

involving greater than or equal to 100 

acres aggregate; 

(7) Construction or enlargement of 

aquaculture facilities when the capacity 

is either 20,000 pounds for cold water 

flow through systems or 100,000 pounds 

for warm water confined systems; 

(8) Construction of commercial 

facilities or structures; 

(9) Construction or expansion of a 

CAFO, regardless of the type of manure 

handling system or water system; 

(10) Refinancing of a newly 

constructed CAFO, including medium 

CAFOs, as defined in 40 CFR 122.23, or 

aquaculture facilities that have been in 

operation for 12 months or less; 

(11) Issuance of FSA regulations, 

Federal Register notices, or 

amendments to existing programs that 

authorize FSA or CCC funding for 

actions that have the potential to 

adversely affect the human 

environment; 

(12) Newly authorized programs that 

involve actions specified in § 799.34; 

(13) Any FSA action that after 

completion of the environmental 

screening worksheet for extraordinary 

circumstances specified in § 799.33(b) 

has been determined to have a 

potentially significant impact on the 

quality of the human environment; and 

(14) Any action that will involve the 

planting of a potential invasive species, 

unless exempted by Federal law. 

(b) [Reserved] 

§ 799.42 Contents of an EA. 

(a) The EA must include at least the 

following: 

(1) FSA cover sheet; 

(2) Executive summary; 

(3) Table of contents; 

(4) List of acronyms; 

(5) A discussion of the purpose of and 

need for the proposed action; 

(6) A discussion of alternatives, if the 

proposal involves unresolved conflicts 

concerning the uses of available 

resources; 

(7) A discussion of environmental 

impacts of the proposed action, with 

reference to the significance of the 

impact as specified in § 799.8 and 40 

CFR 1508.27; 

(8) Likelihood of any significant 

impact and potential mitigation 

measures to include those FSA will 

undertake to support a FONSI; 

(9) A list of preparers and 

contributors; 

(10) A list of agencies and persons 

consulted; 

(11) References; and 

(12) Appendixes, if appropriate. 

(b) FSA will prepare a Supplemental 

EA, and place the supplements in the 

administrative record of the original EA, 

if: 

(1) Substantial changes occur in the 

proposed action that are relevant to 

environmental concerns previously 

presented, or 

(2) Significant new circumstances or 

information arise that are relevant to 

environmental concerns and to the 

proposed action or its impacts. 

(c) FSA may request that a program 

participant prepare or provide 

information for FSA to use in the EA 

and may use the program participant’s 

information in the EA or Supplemental 

EA provided that FSA also: 

(1) Independently evaluates the 

environmental issues; and 

(2) Takes responsibility for the scope 

and content of the EA. 

§ 799.43 Adoption of an EA prepared by 

another entity. 

(a) FSA may adopt an EA prepared by 

another Federal agency, State, or Tribal 

government if the EA meets the 

requirements of this subpart. 

(b) If FSA adopts another agency’s EA 

and issues a FONSI, FSA will follow the 

procedures specified in § 799.44. 

§ 799.44 Finding of No Significant Impact 

(FONSI). 

(a) If after completing the EA, FSA 

determines that the proposed action will 

not have a significant effect on the 

quality of the human environment, FSA 

will issue a FONSI. 

(b) The FONSI will include the 

reasons FSA determined that the 

proposed action will have no significant 

environmental impacts. 

(c) If the decision to issue the FONSI 

is conditioned upon the implementation 

of measures (mitigation actions) to 

ensure that impacts will be held to a 

nonsignificant level, the FONSI must 

include an enforceable commitment to 

implement such measures on the part of 

FSA, and any applicant or other party 

responsible for implementing the 

measures will be responsible for the 

commitments outlined in the FONSI. 

(d) FSA will make the FONSI 

available to the public prior to making 

a decision as specified in 40 CFR 

1506.6, including publishing a notice of 

availability of the final EA and FONSI 

in the local media or Federal Register 

as appropriate. 

(e) FSA will make the final EA and 

FONSI available for public review for at 

least 15 days before taking any final 

agency action. FSA will determine 

whether an EIS is required based in part 

on the comments received during such 

review. 

Subpart E—Environmental Impact 

Statements 

§ 799.50 Purpose of an EIS. 

(a) FSA will prepare an EIS for 

proposed actions that are expected to 

have a significant effect on the human 

environment. The purpose of the EIS is 

to ensure that all significant 

environmental impacts and reasonable 

alternatives are fully considered in 

connection with the proposed action. 


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(b) FSA will prepare a PEIS for 

proposed actions that are broad in scope 

or similar in nature and may 

cumulatively have significant 

environmental impacts, although the 

impact of the individual actions may be 

insignificant. 

§ 799.51 When an EIS is required. 

(a) The following FSA actions 

normally require preparation of an EIS: 

(1) Legislative proposals, not 

including appropriations requests, with 

the potential for significant 

environmental impact that are drafted 

and submitted to Congress by FSA; 

(2) Broad Federal assistance programs 

administered by FSA involving 

significant financial assistance or 

payments to program participants that 

may have significant cumulative 

impacts on the human environment or 

national economy; and 

(3) Ongoing programs that have been 

found through previous environmental 

analyses to have major environmental 

concerns. 

(b) [Reserved] 

§ 799.52 Notice of intent to prepare an EIS. 

(a) FSA will publish a Notice of Intent 

to prepare an EIS in the Federal 

Register and, depending on the scope of 

the proposed action, may publish a 

notice in other media. 

(b) The notice will include the 

following: 

(1) A description of the proposed 

action and possible alternatives; 

(2) A description of FSA’s proposed 

scoping process, including information 

about any public meetings; and 

(3) The name of an FSA point of 

contact who can receive input and 

answer questions about the proposed 

action and the preparation of the EIS. 

§ 799.53 Contents of an EIS. 

(a) FSA will prepare the EIS as 

specified in 40 CFR part 1502. 

(b) The EIS must include at least the 

following: 

(1) An FSA cover sheet; 

(2) An executive summary explaining 

the major conclusions, areas of 

controversy, and the issues to be 

resolved; 

(3) A table of contents; 

(4) List of acronyms and 

abbreviations; 

(5) A brief statement explaining the 

purpose and need of the proposed 

action; 

(6) A detailed discussion of the 

environmental impacts of the proposed 

action and reasonable alternatives to the 

proposed action, a description and brief 

analysis of the alternatives considered 

but eliminated from further 

consideration, the no-action alternative, 

FSA’s preferred alternative(s), and 

discussion of appropriate mitigation 

measures; 

(7) A discussion of the affected 

environment; 

(8) A detailed discussion of: 

(i) The direct and indirect 

environmental consequences, including 

any cumulative impacts, of the 

proposed action and of the alternatives; 

(ii) Any unavoidable adverse 

environmental effects; 

(iii) The relationship between local 

short-term uses of the environment and 

long-term ecosystem productivity; 

(iv) Any irreversible and irretrievable 

commitments of resources; 

(vi) Possible conflicts with the 

objectives of Federal, regional, State, 

local, regional, and Tribal land use 

plans, policies, and controls for the area 

concerned; 

(vii) Energy and natural depletable 

resource requirements, and conservation 

potential of the alternatives and 

mitigation measures; and 

(viii) Urban quality, historic, and 

cultural resources and the design of the 

built environment, including the reuse 

and conservation potential of the 

alternatives and mitigation measures; 

(9) In the draft EIS, a list of all Federal 

permits, licenses, and other entitlements 

that must be obtained for 

implementation of the proposal; 

(10) A list of preparers; 

(11) Persons and agencies contacted; 

(12) References, if appropriate; 

(13) Glossary, if appropriate; 

(14) Index; 

(15) Appendixes, if appropriate; 

(16) A list of agencies, organizations, 

and persons to whom copies of the EIS 

are sent; and 

(17) In the final EIS, a response to 

substantive comments on environmental 

issues. 

(c) FSA may have a contractor prepare 

an EIS as specified in 40 CFR 1506.5(b). 

If FSA has a contractor prepare an EIS, 

FSA will: 

(1) Require the contractor to sign a 

disclosure statement specifying it has no 

financial or other interest in the 

outcome of the action, which will be 

included in the Administrative Record; 

and 

(2) Furnish guidance and participate 

in the preparation of the EIS, and 

independently evaluate the EIS before 

its approval. 

§ 799.54 Draft EIS. 

(a) FSA will prepare the draft EIS 

addressing the information specified in 

§ 799.53. 

(b) FSA will circulate the draft EIS as 

specified in 40 CFR 1502.19. 

(c) FSA will request comments on the 

draft EIS from: 

(1) Any Federal agency that has 

jurisdiction by law or has special 

expertise with respect to the 

environmental impact involved or is 

authorized to develop and enforce 

environmental standards; 

(2) Appropriate State and local 

agencies authorized to develop and 

enforce environmental standards 

relevant to the scope of the EIS; 

(3) Tribal governments that have 

interests that could be impacted; 

(4) Any agency that requested to 

receive statements on the type of action 

proposed; 

(5) The public, particularly persons or 

organizations who may be interested or 

affected; 

(6) If the action affects historic 

properties, the appropriate SHPO, 

THPO, and the Advisory Council on 

Historic Preservation; and 

(7) An applicant or program 

participant, if applicable. 

(d) FSA will file the draft EIS with the 

Environmental Protection Agency as 

specified in 40 CFR 1506.9 and in 

accordance with the EPA filing 

requirements (available at http://

www.epa.gov/compliance/nepa/

submiteis/index.html). 

(e) The draft EIS will include a cover 

sheet with the information specified in 

40 CFR 1502.11. 

(f) FSA will provide for a minimum 

45-day comment period calculated from 

the date the Environmental Protection 

Agency publishes the NOA of the draft 

EIS. 

§ 799.55 Final EIS. 

(a) FSA will prepare the final EIS 

addressing the information specified in 

§ 799.53. 

(b) FSA will evaluate the comments 

received on the draft EIS and respond in 

the final EIS as specified in 40 CFR 

1503.4. FSA will discuss in the final EIS 

any issues raised by commenters that 

were not discussed in the draft EIS and 

provide a response to those comments. 

(c) FSA will attach substantive 

comments, or summaries of lengthy 

comments, to the final EIS and will 

include all comments in the 

administrative record. 

(d) FSA will circulate the final EIS as 

specified in 40 CFR 1502.19. 

(e) FSA will file the final EIS with the 

Environmental Protection Agency as 

specified in 40 CFR 1506.9. 

(f) The final EIS will include a cover 

sheet with the information specified in 

40 CFR 1502.11. 

§ 799.56 Supplemental EIS. 

(a) FSA will prepare supplements to 

a draft or final EIS if: 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 170 / Wednesday, September 3, 2014 / Proposed Rules 52259 

(1) Substantial changes occur in the 

proposed action that are relevant to 

environmental concerns previously 

presented; or 

(2) Significant new circumstances or 

information arise that are relevant to 

environmental concerns and to the 

proposed action or its impacts. 

(b) The requirements of this subpart 

for completing the original EIS apply to 

the supplemental EIS, with the 

exception of the scoping process, which 

is optional. 

§ 799.57 Tiering. 

(a) As specified in 40 CFR 1508.28, 

tiering is a process of covering general 

environmental review in a broad 

programmatic EIS, followed by 

subsequent narrower scope analysis to 

address specific actions, action stages, 

or sites. FSA will use tiering when FSA 

prepares a broad programmatic EIS and 

subsequently prepares a site-specific EA 

or PEA for a proposed action included 

within the program addressed in the 

original, broad programmatic EIS. 

(b) When FSA uses tiering, the 

subsequent EA or PEA will: 

(1) Summarize the issues discussed in 

the broader statement; 

(2) Incorporate by reference the 

discussions from the broader statement 

and the conclusions carried forward 

into the subsequent tiered analysis and 

documentation; and 

(3) State where the programmatic EIS 

document is available. 

§ 799.58 Adoption of an EIS prepared by 

another entity. 

(a) FSA may elect to adopt an EIS 

prepared by another Federal agency, 

State, or Tribal government if: 

(1) The NECM determines that the EIS 

and the analyses and procedures by 

which they were developed meet the 

requirements of this part; and 

(2) The agency responsible for 

preparing the EIS concurs. 

(b) If FSA participated in the NEPA 

process as a cooperating agency, FSA 

may adopt the lead agency’s final EIS 

and reference it in the FSA ROD. 

However, the NECM must 

independently review the EIS and 

determine that FSA requirements in this 

part have been satisfied. 

(c) If FSA was not a cooperating 

agency but the FSA action is 

substantially the same as the subject of 

another agency’s EIS, the NECM may 

adopt the EIS and recirculate it as a final 

EIS. However, the NECM must 

independently review the EIS and 

determine that FSA requirements in this 

part have been satisfied. The final EIS 

must identify the other Federal action 

involved. 

(d) If the FSA action is not 

substantially the same as the subject of 

another agency’s EIS, FSA may 

incorporate by reference the relevant 

portions of the EIS into the FSA draft 

EIS. The draft EIS must include the 

content specified in § 799.53. The 

NECM must inform the agency that 

prepared the original EIS of FSA’s intent 

and the proposed FSA action for which 

the EIS will be used. 

(e) If an adopted EIS is not final, or 

it is subject to a referral to CEQ as 

specified in 40 CFR part 1504, or the 

EIS’s adequacy is the subject of a 

judicial action that is not final, the 

NECM must include an explanation in 

the FSA EIS why adoption of the EIS 

was appropriate. 

§ 799.59 Record of decision. 

(a) FSA will issue an ROD within the 

time periods specified in 40 CFR 

1506.10(b) but no sooner than 30 days 

after the Environmental Protection 

Agency’s publication of the NOA of the 

final EIS. The ROD will: 

(1) State the decision reached; 

(2) Identify all alternatives considered 

by FSA in reaching its decision, 

specifying the alternative or alternatives 

considered to be environmentally 

preferable; 

(3) Identify and discuss all factors, 

including any essential considerations 

of national policy, which were balanced 

by FSA in making its decision, and state 

how those considerations entered into 

its decision; and 

(4) State whether all practicable 

means to avoid or minimize 

environmental harm from the 

alternative selected have been adopted 

and, if not, explain why these mitigation 

measures were not adopted. 

(b) FSA will distribute the ROD to all 

parties who request it. 

(c) FSA will publish the ROD or a 

notice of availability of the ROD in the 

Federal Register. 

7 CFR CHAPTER XIV—COMMODITY 

CREDIT CORPORATION 

PART 1436—FARM STORAGE 

FACILITY LOAN PROGRAM 

REGULATIONS 

■ 28. The authority citation for part 

1436 continues to read as follows: 

Authority: 7 U.S.C. 7971 and 8789; and 15 

U.S.C. 714–714p. 

§ 1436.17 [Removed] 

■ 29. Remove § 1436.17. 

7 CFR CHAPTER XVIII—RURAL HOUSING 

SERVICE, RURAL BUSINESS– 

COOPERATIVE SERVICE, RURAL UTILITIES 

SERVICE, AND FARM SERVICE AGENCY, 

DEPARTMENT OF AGRICULTURE 

PART 1940—GENERAL 

■ 30. The authority citation for part 

1940 continues to read as follows: 

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; and 

42 U.S.C. 1480. 

Subpart G—Environmental Program 

■ 31. Amend § 1940.301 by adding 

paragraph (i) to read as follows: 

§ 1940.301 Purpose. 

* * * * * 

(i) This subpart does not apply to the 

Farm Service Agency Farm Loan 

Programs. (See part 799 of this title for 

the Farm Service Agency NEPA 

implementing regulations.) 

■ 32. Revise Exhibit M to Subpart G of 

Part 1940 to read as follows: 

Exhibit M to Subpart G of Part 1940— 

Conservation of Wetlands and Highly 

Erodible Land Affecting Farm Loan 

Programs and Loans to Indian Tribes 

and Tribal Corporations 

The Farm Service Agency 

consolidated the Farm Loan Programs 

NEPA implementing regulations into 

part 799 of this title. (The swampbuster 

and sodbuster provisions previously 

contained in Exhibit M do not apply to 

the Rural Housing Service, Rural 

Business-Cooperative Service, and Rural 

Utilities Service.) Therefore, see part 

799 of this title for information related 

to the Farm Service Agency’s NEPA 

implementing regulations; see part 12 of 

this title for information related to 

highly erodible land and wetland 

conservation; and see parts 761 through 

774 of this title for information related 

to Farm Loan Programs. 

Signed on August 25, 2014. 

Juan M. Garcia, 

Administrator, Farm Service Agency, and 

Executive Vice President, Commodity Credit 

Corporation. 

Signed on August 26, 2014. 

Douglas J. O’Brien, 

Acting Under Secretary, Rural Development. 

[FR Doc. 2014–20836 Filed 9–2–14; 8:45 am] 

BILLING CODE 3410–05–P 


emcdonald on DSK67QTVN1PROD with PROPOSALS