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[Federal Register Volume 79, Number 170 (Wednesday, September 3, 2014)]
[Proposed Rules]
[Pages 52239-52259]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20836]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

========================================================================


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

[[Page 52239]]

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 Business-
Cooperative 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

[[Page 52240]]

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 long-term 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 
agency-specific 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

[[Page 52241]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 52242]]

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 Sec.  
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 Sec.  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 Sec. Sec.  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

[[Page 52243]]

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
----------------------------------------------------------------------------------------------------------------
                                  Current 7 CFR part  Current 7 CFR part    Proposed 7 CFR        Additional
        Major provisions                  799                1940              part 799           information
----------------------------------------------------------------------------------------------------------------
Categorical Exclusions (CatEx)..  The term            Some specific Farm  Lists all           Proposed rule also
                                   categorical         Loan Programs       categories of FSA   includes specific
                                   exclusion is not    actions are         actions and         process for
                                   used, although      categorically       separates them      publishing new
                                   there is a list     excluded under 7    into three          CatExs in the
                                   of actions not      CFR 1940.310(d).    categories:         future, including
                                   normally                                Actions     public review and
                                   requiring an EA                         that are always     comment process.
                                   or EIS.                                 CatExs, with no
                                                                           documentation
                                                                           required.

[[Page 52244]]

 
                                                                           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       Requires EAs,       Eliminates the      Some actions that
                                   process to be       depending on        Class I and Class   currently require
                                   followed but does   circumstances,      II actions for      an EA would be
                                   not specify which   for certain Farm    Farm Loan           categorically
                                   Farm Programs       Loan Programs       Programs. Lists     excluded actions.
                                   actions require     actions. See 7      all specific FSA
                                   an EA.              CFR 1940.311,       actions that
                                                       312, 318, and 319.  require an EA,
                                                                           and those that
                                                                           require an ESW to
                                                                           determine if an
                                                                           EA is required.
Environmental Impact Statements   Specifies general   Specifies criteria  Specifies the       No change in the
 (EIS).                            categories of FSA   for determining     general             types of actions
                                   Farm Programs       significant         categories of FSA   for which an EIS
                                   actions that are    impact, with an     actions that are    is required, but
                                   likely to have a    emphasis on         likely to have a    more detail on
                                   significant         floodplains and     significant         the content and
                                   impact on the       wetlands. See 7     impact on the       review process of
                                   environment, and    CFR 1940.313,       environment.        an EIS.
                                   specific programs   314, and 320.       Specifies the
                                   that are not.                           content of an EIS
                                                                           and the review
                                                                           process.
Environmental Screening           An appendix         Environmental       An ESW would be     The description of
 Worksheet (ESW).                  provides the now    Evaluation (RD      required for FSA    how to use the
                                   obsolete ASCS-929   1940-22 (NOTE: RD   actions that fall   current FSA
                                   form.               is a successor      into a listed       Environmental
                                                       agency to FmHA))    CatEx requiring     Evaluation form
                                                       is required to      documentation to    (FSA 850) is in
                                                       determine if a      determine if an     the handbooks,
                                                       Class I or Class    extraordinary       not the
                                                       II EA should be     circumstance        regulations. The
                                                       prepared. See 7     exists and if an    ESW is shorter
                                                       CFR 1940.317(c).    EA or EIS should    and has more
                                                                           be prepared.        specific criteria
                                                                                               than the current
                                                                                               FSA 850.
Programmatic NEPA Process.......  Not addressed.....  Not addressed       Specified process   This is not a new
                                                       specifically,       for conducting      process for FSA,
                                                       although tiering    programmatic NEPA   but the process
                                                       is in 7 CFR         for FSA programs    is currently not
                                                       1940.327.           and actions that    specified in the
                                                                           have a national     FSA regulations.
                                                                           scope.
Integration of other              NEPA and CEQ's      Some other          Many environmental  FSA already
 environmental laws and            NEPA regulations    environmental law   laws, Executive     complies with the
 regulations.                      are the only        requirements are    Orders, and         Executive Orders,
                                   environmental       mentioned, but      regulations are     USDA regulations,
                                   laws and            not in detail and   added as            laws, and CEQ
                                   regulations         with little         references.         guidance listed
                                   referenced.         guidance on how     Compliance with     in the proposed
                                                       they apply.         other               rule, but most of
                                                                           environmental       those references
                                                                           laws such as NHPA   are not in the
                                                                           is explained in     current
                                                                           detail and          regulations.
                                                                           integrated into
                                                                           the ESW.
----------------------------------------------------------------------------------------------------------------

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, Sec.  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.

[[Page 52245]]

    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 Sec.  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

[[Page 52246]]

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

[[Page 52247]]

and Coordination with Indian Tribal Governments.'' Executive Order 
13175 requires Federal agencies to consult and coordinate with tribes 
on a government-to-government basis on policies that have tribal 
implications, including regulations, legislative comments or proposed 
legislation, and other policy statements or actions that have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes or 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 Sec.  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 programs-agriculture, 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 programs-agriculture, Reporting and 
recordkeeping requirements.

7 CFR Part 772

    Agriculture, Credit, Loan programs-agriculture, 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 programs-housing 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:

[[Page 52248]]

7 CFR Chapter VII

PART 761--FARM LOAN PROGRAMS; GENERAL PROGRAM ADMINISTRATION

0
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.

Sec.  761.10  [Amended]

0
2. Amend Sec.  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

0
3. The authority citation for part 762 continues to read as follows:

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

Sec.  762.128  [Amended]

0
4. Amend Sec.  762.128 as follows:
0
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
0
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

0
5. The authority citation for part 763 continues to read as follows:

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

Sec.  763.7  [Amended]

0
6. In Sec.  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.

Sec.  763.16  [Amended]

0
7. In Sec.  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

0
8. The authority citation for part 764 continues to read as follows:

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

Sec. Sec.  764.51 and 764.106   [Amended]

0
9. Amend Sec. Sec.  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

0
10. The authority citation for part 765 continues to read as follows:

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

Sec. Sec.  765.205, 765.252, and 765.351   [Amended]

0
11. Amend Sec. Sec.  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:
0
a. In Sec.  765.205(a)(3);
0
b. Sec.  765.252(b)(3)(ii); and
0
c. Sec.  765.351(a)(6).

PART 766--DIRECT LOAN SERVICING--SPECIAL

0
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

Sec. Sec.  766.102 and 766.112   [Amended]

0
13. Amend Sec. Sec.  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

0
14. The authority citation for part 767 continues to read as follows:

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

Sec.  767.201  [Amended]

0
15. Amend Sec.  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

0
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.

Sec.  770.5  [Amended]

0
17. Amend Sec.  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

0
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.

Sec.  772.4  [Amended]

0
19. In Sec.  772.4 remove the words ``7 CFR part 1940, subpart G and 
the exhibits to that subpart and''.

Sec.  772.6  [Amended]

0
20. Amend Sec.  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

0
21. The authority citation for part 773 continues to read as follows:

    Authority: Pub. L. 106-224.

Sec.  773.9  [Removed]

0
22. Remove Sec.  773.9.

Sec.  773.18  [Amended]

0
23. Amend Sec.  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

0
24. The authority citation for part 774 continues to read as follows:

    Authority: Pub. L. 106-224

Sec.  774.9  [Removed]

0
25. Remove Sec.  774.9.

Sec.  774.17  [Amended]

0
26. Amend Sec.  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.
0
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.

[[Page 52249]]

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

Sec.  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 (Sec. Sec.  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.

Sec.  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

[[Page 52250]]

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.

Sec.  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.

Sec.  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

Sec.  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

[[Page 52251]]

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.

Sec.  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.

Sec.  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 Sec. Sec.  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 Sec.  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.

Sec.  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.

Sec.  799.9  Environmental review documents.

    (a) FSA may prepare the following documents during the 
environmental review process:
    (1) Environmental screening worksheet;

[[Page 52252]]

    (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]

Sec.  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 Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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.

[[Page 52253]]

Sec.  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.

Sec.  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 Sec.  799.17.

Sec.  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.

Sec.  799.18  Overview of FSA NEPA process.

------------------------------------------------------------------------
        If the proposed action:                        FSA:
------------------------------------------------------------------------
Is an emergency action.................  Follows the procedures in Sec.
                                           799.12.
Is exempt from section 102(2)(C) of      Implements the action.
 NEPA (42 U.S.C. 4332(2)(C)) by
 authorizing legislation for the
 program.
Is categorically excluded under Sec.     Implements the action.
 799.31(b) or Sec.   1b.3 of this title.
Is an action that has the potential to   Completes an environmental
 impact historic properties as            screening worksheet to
 specified in Sec.   799.34(b) and        determine if there will be an
 therefore requires the completion of     impact on historic properties.
 an environmental screening worksheet.    FSA will prepare an EA or EIS,
                                          as indicated, before
                                          implementing the action.
Is a categorically excluded action       Completes an environmental
 listed in Sec.   799.32 that requires    screening worksheet to
 the completion of an environmental       determine whether
 screening worksheet.                     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           Prepares an EA.
 requiring an EA listed in Sec.
 799.41.
Involves a category of actions           Prepares an EIS.
 requiring an EIS listed in Sec.
 799.51.
------------------------------------------------------------------------

[[Page 52254]]

Subpart C--Environmental Screening Worksheet

Sec.  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 Sec.  799.31(b) 
or Sec.  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.

Sec.  799.21  [Reserved]

Subpart D--Categorical Exclusions

Sec.  799.30  Purpose of categorical exclusion process.

    (a) FSA has determined that the categories of actions listed in 
Sec. Sec.  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 Sec. Sec.  1b.3 of this title, 799.31, or 799.32, and 
there are no extraordinary circumstances present as specified in Sec.  
799.33, then the action is categorically excluded from the requirements 
to prepare an EA or an EIS.

Sec.  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 Sec.  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 Sec. Sec.  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 farm-related 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-in-force, 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);

[[Page 52255]]

    (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.

Sec.  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 Sec.  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)).

Sec.  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), Federally-proposed 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

[[Page 52256]]

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.

Sec.  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 Sec.  799.32 to determine whether extraordinary 
circumstances under Sec.  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 
Sec. Sec.  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.

Sec.  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

[[Page 52257]]

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

Sec.  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.

Sec.  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 
Sec.  799.34;
    (13) Any FSA action that after completion of the environmental 
screening worksheet for extraordinary circumstances specified in Sec.  
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]

Sec.  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 Sec.  
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.

Sec.  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 Sec.  799.44.

Sec.  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

Sec.  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.

[[Page 52258]]

    (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.

Sec.  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]

Sec.  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.

Sec.  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.

Sec.  799.54  Draft EIS.

    (a) FSA will prepare the draft EIS addressing the information 
specified in Sec.  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.

Sec.  799.55  Final EIS.

    (a) FSA will prepare the final EIS addressing the information 
specified in Sec.  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.

Sec.  799.56  Supplemental EIS.

    (a) FSA will prepare supplements to a draft or final EIS if:

[[Page 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.

Sec.  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.

Sec.  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 Sec.  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.

Sec.  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

0
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.

Sec.  1436.17  [Removed]

0
29. Remove Sec.  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

0
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

0
31. Amend Sec.  1940.301 by adding paragraph (i) to read as follows:

Sec.  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.)
0
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
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