[Federal Register Volume 79, Number 202 (Monday, October 20, 2014)]
[Proposed Rules]
[Pages 62576-62587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24828]


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AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 237

RIN 0412-AA64


Environmental Compliance Procedures for Domestic Activities

AGENCY: United States Agency for International Development.

[[Page 62577]]


ACTION: Proposed rule.

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SUMMARY: The United States Agency for International Development (USAID) 
proposes a rule to establish environmental compliance procedures 
pursuant to the National Environmental Policy Act (NEPA). This proposed 
rule is applicable to all USAID activities, both program and operating 
expense (OE) funded, that occur within the United States, its 
territories and or possessions. Program funded activities that occur 
entirely outside of the United States, its territories and possessions 
undergo environmental impact assessment and compliance review under 
separate regulatory authority.
    This rule will ensure that the environmental consequences of USAID 
actions are considered prior to funding in accordance with NEPA.

DATES: Submit comments on or before December 19, 2014.

ADDRESSES: Address all comments concerning this proposed rule to Dennis 
Durbin, M/MPBP/POL, USAID/Washington, 1300 Pennsylvania Avenue NW., 
Washington, DC 20523.

FOR FURTHER INFORMATION CONTACT: Dennis Durbin, Telephone: 202-712-
0789, Email: <a href="/cdn-cgi/l/email-protection#086c6c7d7a6a6166487d7b69616c266f677e"><span class="__cf_email__" data-cfemail="fd9999888f9f9493bd888e9c9499d39a928b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Procedural Matters

I. Public Comment Procedures

How do I comment on the proposed rule?

    <bullet> Because security screening precautions have slowed the 
delivery and dependability of surface mail to USAID/Washington, USAID 
recommends sending all comments by electronic mail or by fax to the 
email address or fax number listed directly below (please note, all 
comments must be in writing to be reviewed). You may submit written 
electronic comments by sending electronic mail [email] to: 
<a href="/cdn-cgi/l/email-protection#f591918087979c9bb58086949c91db929a83"><span class="__cf_email__" data-cfemail="3256564740505b5c724741535b561c555d44">[email protected]</span></a>. Please submit comments as a Microsoft Word file 
avoiding the use of any special characters and any form of encryption.
    <bullet> Surface Mail (again, not advisable due to security 
screening): Dennis Durbin, M/MPBP/POL, USAID/Washington, 1300 
Pennsylvania Avenue NW., Washington, DC 20523.
    Please make your written comments on the proposed rule as specific 
as possible, confine them to issues pertinent to the proposed rule, and 
explain the reason for any changes you recommend. Where possible, your 
comments should reference the specific section or paragraph of the 
proposal that you are addressing.
    USAID may not necessarily consider or include in the Administrative 
Record for the final rule comments that USAID receives after the close 
of the comment period (see DATES) or comments delivered to an address 
other than those listed above (see ADDRESSES).

II. Background

Why is USAID proposing this rule?

    The procedures set forth in this proposal ensure that USAID actions 
and expenditures comply with the National Environmental Policy Act 
(NEPA), Public Law 91-190 42 U.S.C. 4321 et seq., as implemented by the 
Council on Environmental Quality (CEQ) Regulations (40 CFR parts 1500 
through 1508). These procedures apply specifically to Agency actions 
undertaken in the United States, its territories or possessions. It is 
USAID policy to ensure that the environmental and social consequences 
of USAID financed activities are identified and considered by USAID 
prior to a final decision to proceed and that appropriate environmental 
safeguards are adopted.

Do USAID overseas activities undergo environmental review?

    Yes. USAID environmental compliance for Agency program funded 
activities pursuant to the Foreign Assistance Act and the Agricultural 
Trade Development and Assistance Act of 1954 (Pub. L. 83-480, enacted 
July 10, 1954) which address such basic problems as hunger, 
malnutrition, overpopulation, disease, disaster, governance, economic 
growth, energy security, climate change, deterioration of the 
environment and the natural resource base, illiteracy, and the lack of 
adequate housing and transportation, and to facilitate economic 
development is addressed under 22 CFR part 216. The existing rule for 
overseas activities together with this proposal for domestic activities 
will ensure environmental stewardship for USAID activities.

What type of activities does the proposed rule cover?

    These proposed NEPA implementing procedures for considering the 
environmental consequences apply to all proposed Agency activities in 
the United States, its territories or possessions (hereinafter domestic 
activities). These activities include domestic activities such as 
building operations, acquisition and operation of fleet vehicles, 
personnel salary and administration, procurement of supplies and 
services, USAID facility construction and maintenance, payment of rent 
and utilities, general USAID internal operations and administration, 
and other OE funded activities.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    These proposed regulations are not a significant regulatory action 
and are not subject to review by Office of Management and Budget under 
Executive Order 12866. These proposed regulations will not have an 
effect of $100 million or more on the economy. They will not adversely 
affect in a material way the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities. These proposed regulations will not create 
a serious inconsistency or otherwise interfere with an action taken or 
planned by another agency. These proposed regulations do not alter the 
budgetary effects of entitlements, grants, user fees, or loan programs 
or the right or obligations of their recipients; nor do they raise 
novel legal or policy issues.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. President Clinton's 
Presidential memorandum of June 2, 1998, requires us to write new 
regulations in plain language. We invite your comments on how to make 
these proposed regulations easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed regulations clearly stated? (2) Do the proposed regulations 
contain technical language or jargon that interferes with their 
clarity? (3) Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity? (4) Would the regulations be easier to understand if 
they were divided into more (but shorter) sections? (A section appears 
in bold type and is preceded by the symbol and a numbered heading, for 
example) (5) Is the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble helpful in 
understanding the proposed regulations? How could this description be 
more helpful in making the proposed regulations easier to understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

[[Page 62578]]

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. The proposed rule would impact 
approximately 50 USAID partners per year where their proposed 
activities would undergo the procedural NEPA requirements under this 
proposal. Most of these entities would be academic institutions in the 
United States who partner with foreign entities for research and 
provision of development assistance. USAID foreign assistance actions 
are already reviewed for environmental compliance under the procedures 
in 22 CFR part 216. The NEPA compliance procedures stated in this 
proposal are not substantially different from those USAID undertakes 
from the environmental compliance procedures USAID under 22 CFR part 
216. Therefore, we have determined under the RFA that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act

    These proposed regulations do not impose an unfunded mandate on 
State, local, or tribal governments or the private sector of more than 
$100 million per year; nor do these proposed regulations have a 
significant or unique effect on State, local, or tribal governments or 
the private sector.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    The proposed rule does not represent a government action capable of 
interfering with constitutionally protected property rights. Therefore, 
we have determined that the rule would not cause a taking of private 
property or require further discussion of takings implications under 
this Executive Order.

Executive Order 12612, Federalism

    The proposed rule will not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, we have determined that this proposed rule does not have 
sufficient Federalism implications to warrant preparation of a 
Federalism Assessment.

Paperwork Reduction Act

    These regulations do not contain information collection 
requirements that the Office of Management and Budget must approve 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Author

    The principal author of this rule is Dennis Durbin, United States 
Agency for International Development.

List of Subjects in 22 CFR Part 237

    Environmental impact statements, Environmental protection, 
Pesticides and pests.

    For the reasons discussed in the preamble, the United States Agency 
for International Development proposes to add 22 CFR part 237 as 
follows:

PART 237--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES

Sec.
237.1 Introduction.
237.2 Scope.
237.3 Definitions.
237.4 Responsibilities of Agency officials.
237.5 Applicability of procedures.
237.6 Procedures.
237.7 Pesticide procedures.
237.8 Genetically modified organisms.
237.9 Endangered species.
237.10 Filing and publishing.
237.11 Public hearings.
237.12 Records and reports.

    Authority:  42 U.S.C. 4321-4347.


Sec.  237.1  Introduction.

    (a) The procedures set forth in these regulations ensure that the 
United States Agency for International Development (USAID) actions and 
expenditures comply with the National Environmental Policy Act (NEPA), 
42 U.S.C. 4321 et seq., as implemented by the Council on Environmental 
Quality (CEQ) Regulations (40 CFR parts 1500 through 1508). These 
procedures apply specifically to Agency actions undertaken in the 
United States, its territories or possessions.
    (b) USAID environmental compliance for Agency program funded 
activities pursuant to the Foreign Assistance Act and the Agricultural 
Trade Development and Assistance Act of 1954 (Pub. L. 83-480) which 
address such basic problems as hunger, malnutrition, overpopulation, 
disease, disaster, governance, economic growth, energy security, 
climate change, deterioration of the environment and the natural 
resource base, illiteracy, and the lack of adequate housing and 
transportation, and to facilitate economic development is addressed 
under 22 CFR part 216. Together, these two regulations ensure 
environmental stewardship for USAID activities.
    (c) It is USAID policy to ensure that the environmental and social 
consequences of USAID financed activities are identified and considered 
by USAID prior to a final decision to proceed and that appropriate 
environmental safeguards are adopted.


Sec.  237.2  Scope.

    These NEPA implementing procedures for considering the 
environmental consequences apply to all proposed Agency activities in 
the United States, its territories or possessions (hereinafter domestic 
activities). These activities include domestic activities such as 
building operations, acquisition and operation of fleet vehicles, 
personnel salary and administration, procurement of supplies and 
services, USAID facility construction and maintenance, payment of rent 
and utilities, general USAID internal operations and administration, 
and other OE funded activities.


Sec.  237.3  Definitions.

    For the purposes of this part, the following definitions apply:
    Action. Action and Major Federal Action as described in 40 CFR 
1508.18.
    Adaptive Management. The ongoing process during implementation of 
an activity where the Implementing Officer (COR, AOR, or equivalent) 
manages the activity or action to the mitigation measures and 
Environmental Management and Monitoring Plan that have been developed 
under the Environmental Assessment or Environmental Impact Statement; 
and, makes formal adjustments and amendments, in conjunction with the 
Environmental Assessment or Environmental Impact Statement signatory, 
as needed to ensure optimal environment soundness throughout the life 
of the activity.
    Administrator. The head or acting head of the U.S. Agency for 
International Development. The final decision-making executive on 
Environmental Impact Statements.
    Agency. The United States Agency for International Development. 
Also referred to as USAID.
    Agency Environmental Coordinator (AEC). USAID's executive 
management officer whose duties include oversight of the Agency's 
compliance with US environmental laws, regulations, and directives, 
including this Regulation

[[Page 62579]]

and its companion for program funded activities, 22 CFR part 216.
    Alternative Arrangements. Where emergency circumstances make it 
necessary to take an action with significant environmental impact 
without observing the provisions of this Regulation and the White House 
Council on Environmental Quality (CEQ) regulations, USAID shall consult 
with the CEQ about Alternative Arrangements. USAID and CEQ will limit 
such arrangements to actions necessary to control the immediate impacts 
of the emergency.
    Bureau Environment Officer (BEO). The USAID senior environmental 
regulatory officer for a given Bureau or Independent Office. Each 
operational Bureau or Independent Office has a BEO who oversees 
environmental compliance under this Regulation for all Operating 
Expense Activities in their Bureau or Independent Office. This expert 
environmental compliance officer typically also oversees compliance in 
their Bureau or Independent Office on program funded activities under 
22 CFR part 216. They are appointed in writing by an Assistant 
Administrator or an Independent Office Director with the concurrence of 
the AEC.
    Categorical exclusion. Categorical exclusions (CEs) describe 
categories of actions which meet the definition contained in 40 CFR 
1508.4, and, based on past experience with similar actions, do not 
normally involve significant environmental impacts.
    Connected actions. Actions which may or may not be funded by USAID 
but which are closely related and therefore should be discussed in the 
same USAID Environmental Assessment or Environmental Impact Statement. 
Actions are connected if they:
    (1) Automatically trigger other actions which may require 
Environmental Impact Statements by USAID or other agencies;
    (2) Cannot or will not proceed unless other actions are taken 
previously or simultaneously; or
    (3) Are interdependent parts of a larger action and depend on the 
larger action for their justification. Under 22 CFR part 216 this same 
concept is typically referred to as Associated Facilities.
    Cooperating Agency. Any Federal agency other than a lead agency 
which has jurisdiction by law or special expertise with respect to any 
environmental impact involved in a proposal (or a reasonable 
alternative) for legislation or other major Federal action 
significantly affecting the quality of the human environment. Also, a 
State or local agency of similar qualifications or, when the effects 
are on a reservation, an Indian Tribe, may by agreement with the lead 
agency become a cooperating agency.
    Council on Environmental Quality (CEQ). The White House Council in 
the Executive Office of the President that among other duties oversees 
National Environmental Policy Act (NEPA) compliance across all 
Executive Branch agencies; develops Executive Branch agency-wide policy 
and regulations for implementing the procedural provisions of NEPA; and 
resolves interagency disagreements concerning proposed major Federal 
actions.
    Cumulative impact. The impact on the environment which results from 
the incremental impact of the action when added to other past, present, 
and reasonably foreseeable future actions regardless of what agency 
(Federal or non-Federal) or person undertakes such other actions. 
Cumulative impacts can result from individually minor but collectively 
significant actions taking place over a period of time.
    DEIS. Draft Environmental Impact Statement (see Environmental 
Impact Statement).
    Environment. Environment shall be interpreted comprehensively to 
include the natural and physical environment and the relationship of 
people with that environment. When an environmental impact statement is 
prepared and economic or social and natural or physical environmental 
effects are interrelated, then the environmental impact statement will 
discuss all of these effects on the human environment.
    Environmental Assessment (EA). EA is defined in the CEQ regulations 
(40 CFR 1508.9), and is used to assess the environmental impact of 
proposed actions where a categorical exclusion is not appropriate and 
in which the potential for significant environmental impacts are not 
clearly established. When an EA is performed resulting in a Finding of 
No Significant Impact (FONSI), the environmental review process is 
completed. If the EA process results in a finding that the proposed 
activity will incur significant environmental impact an Environmental 
Impact Statement must be prepared. Note that the term EA in this 
regulation differs from that in 22 CFR part 216 and they should not be 
confused or conflated.
    Environmental Impact Statement (EIS). An EIS is defined in the CEQ 
Regulations at 40 CFR 1508.11 and is a detailed study of the reasonably 
foreseeable environmental and social impacts, both positive and 
negative, of a proposed USAID action that results in a significant 
impact on the United States, or the global commons.
    Environmental justice. The fair treatment and meaningful 
involvement of all people regardless of race, color, national origin, 
or income with respect to the development, implementation, and 
enforcement of EAs and EIAs that their related actions. Fair treatment 
means that no group of people, including racial, ethnic, or 
socioeconomic groups, should bear a disproportionate share of the 
negative environmental consequences resulting from USAID actions.
    Environmental Monitoring and Management Plan (EMMP). An EMMP is 
based on the findings of an EA or EIS and describes the activity or 
process of the activity associated with an environmental impact and 
associated mitigation measures and conditions to serve as environmental 
safeguards and monitoring requirements. They are an everyday road map 
used by the COR or AOR or comparable USAID officer and by the grantee 
or contractor to ensure environmental soundness throughout the life of 
an action. EMMPs are a mechanism to identify when environmental issues 
begin to arise during the implementation of an action to ensure they 
are addressed before they become a problem.
    EPA or USEPA--the United States Environmental Protection Agency. An 
independent agency in the Executive Branch of the United States 
government that is among other duties is responsible for supporting 
CEQ's implementation of NEPA under the EPA Office of Federal 
Activities; and for leading the US government's pesticide registration, 
safety, enforcement, and regulatory functions.
    FEIS. Final Environmental Impact Statement (See Environmental 
Impact Statement).
    Finding of No Significant Impact (FONSI). A document briefly 
providing the reasons why a proposed action will not have a significant 
impact on the environment and for which an Environmental Impact 
Statement (EIS) will not be prepared. In cases when environmental 
impacts are small and easily mitigated, a Mitigated FONSI may be 
appropriate and will identify the mitigative measures and funding 
requirements.
    Impact (Effect). A direct result of an action which occurs at the 
same time and place; or an indirect result of an action which occurs 
later in time or in a different place and is reasonably foreseeable; or 
the cumulative results from the incremental impact of the action when 
added to other past,

[[Page 62580]]

present, and reasonably foreseeable future actions regardless of what 
agency or person undertakes such other actions (40 CFR 1508.8).
    Implementing Officer. The Contracts Officer Representative (COR), 
or Agreements Officer Representative (AOR) or comparable USAID officer 
who manages a given contract, grant, lease or similar agreement. The 
Implementing Officer has the primary responsibility for ensuring 
compliance with this Regulation of Operating Expense funded activities 
they manage.
    No Action Alternative. The alternative where current conditions and 
trends are projected into the future without another proposed action 
(40 CFR 1502.14(d)).
    Record of Decision (ROD). A concise public document that records 
USAID's decision(s) concerning a proposed action for which the Agency 
has prepared an Environmental Impact Statement (EIS). The ROD is 
prepared in accordance with the requirements of the Council on 
Environmental Quality NEPA regulations (40 CFR 1505.2). A ROD 
identifies the alternatives considered in reaching the decision, the 
environmentally preferable alternative(s), factors balanced by the 
agency in making the decision, whether all practicable means to avoid 
or minimize environmental harm have been adopted, and if not, why they 
were not. (See Environmental Impact Statement).
    Responsible Action Officer. The Agency officer principally 
responsible for the approval of action memoranda, authorization of 
funds, and similar documents relating to a given Agency action to which 
by these regulations apply. They are normally the Assistant 
Administrator of a Bureau, Director of an Independent Office, or 
Director of a USAID Country Mission.
    Scoping. An early and open process for determining the extent and 
variety of issues to be addressed and for identifying the significant 
issues related to a proposed action (40 CFR 1501.7).
    Significantly. ``Significantly'' as used in NEPA requires 
considerations of social, spatial and temporal context and intensity:
    (1) Context. This means that the significance of an action must be 
analyzed in several contexts such as society as a whole (human, 
national), the affected region, the affected interests, and the 
locality. Significance varies with the setting of the proposed action. 
For instance, in the case of a site-specific action, significance would 
usually depend upon the effects in the locale rather than in the world 
as a whole. Both short- and long-term effects are relevant.
    (2) Intensity. This refers to the severity of the environmental 
impact.
    USAID. The United States Agency for International Development. An 
independent agency in the Executive Branch of the United States 
government responsible for leading international development programs.


Sec.  237.4  Responsibilities of Agency officials.

    (a) General. Each Bureau or Independent Office within the Agency 
shall be responsible for:
    (1) Implementing these regulations early and incorporating them 
into its normal decision-making and activity management processes;
    (2) Providing adequate funding, staff resources and sufficient time 
to complete required environmental impact assessment work under this 
Regulation prior to obligation of funds, and implement any needed 
actions to ensure environmental soundness throughout the life of the 
activity.
    (b) Responsible Action Officer. (1) Responsible Action Officer 
means the Agency officer principally responsible for the approval of 
action memoranda and other documents relating to a given Agency action 
which by these regulations apply. Ordinarily, the Responsible Action 
Officer will be the Assistant Administrator or equivalent, country 
mission director, or Independent Office director whose office has 
responsibility for a given action.
    (2) Preliminary environmental evaluations. Early in the process of 
considering any possible action the Responsible Action Officer shall 
review the action to determine if it may cause potential significant 
environmental effects on the environment of the United States. This 
review shall be shared with the relevant Bureau Environmental Officer 
for review and advice before proceeding to ensure timely and cost 
effective implementation of this Regulation. A proposed action shall be 
reviewed initially to determine into which of the following three basic 
categories of action it falls:
    (i) Actions normally requiring environmental impact statements;
    (ii) Actions categorically excluded from environmental impact 
statements; or
    (iii) Actions normally requiring environmental assessments (as 
defined by 40 CFR 1508.9). If the Responsible Action Officer concludes 
that the proposed action is a major action potentially having 
significant effects in the United States they shall, in cooperation 
with their BEO and any other appropriate USAID officials, carry out the 
steps described in these regulations.
    (c) Bureau Environmental Officer (BEO). The BEO shall have the 
primary responsibility for approving the recommendations from the RAO 
and advising on environmental compliance procedures for actions funded 
by their Bureau or Independent Office. The BEO shall:
    (1) Review and approve in writing all recommended decisions and 
documents from the Responsible Action Officers.
    (2) Provide advice and training to Bureaus, Independent Offices, 
and country missions and their staff to ensure optimal compliance with 
this Regulation.
    (3) Advise the Agency Environmental Coordinator on Environmental 
Impact Statements and overall trends or critical issues in implementing 
this Regulation.
    (d) USAID General Counsel (GC). The GC or their appointed attorney 
shall:
    (1) Advise the BEO and AEC on matters of law as they may pertain to 
this Regulation.
    (2) Represent USAID in any responses to legal challenges that may 
arise in matters related to this Regulation, in conjunction with the 
Department of Justice and any other appropriate Federal agencies.
    (e) Agency Environmental Coordinator (AEC). The AEC shall:
    (1) Oversee and ensure the Agency's compliance with this Regulation 
as part of his or her oversight of Agency environmental policies, 
Federal Regulations and procedures for domestic and international 
activities.
    (2) Arbitrate unresolved differences among Responsible Action 
Officers, BEOs, and other USAID officials to ensure effective 
implementation of this Regulation.
    (3) Concur in the appointment of BEOs by their Assistant 
Administrator or Independent Office Director and who will implement 
this Regulation to ensure the BEO's professional technical 
qualifications.
    (4) Participate with the relevant BEO on any Environmental Impact 
Statement (EIS) process undertaken through this Regulation and forward 
any EIS documents to the USAID Administrator for his or her decision 
per Sec.  237.6(c)(1).
    (5) Lead USAID representation to the White House Council on 
Environmental Quality (CEQ) and other Executive Branch agencies on 
matters relating to implementing this Regulation.


Sec.  237.5  Applicability of procedures.

    (a) The procedures herein apply to all USAID funded domestic 
activities. All

[[Page 62581]]

USAID program funded activities are reviewed under the environmental 
compliance procedures at 22 CFR part 216.
    (b) Emergency procedures. Requests for deviations from the 
procedures in this Regulation because of emergency circumstances (40 
CFR 1506.11) shall be evaluated after consultation with CEQ. Such 
consultations are rapid, do not materially affect the need to 
immediately address emergencies, and often result in more effective 
responses and results including increased lives and property saved.
    (c) Emergency actions. (1) Emergency circumstances may require 
immediate actions that preclude following standard NEPA processes. 
Immediate emergency actions necessary to protect the lives and safety 
of the public should never be delayed in order to comply with NEPA. In 
the event of emergency circumstances, the responsible bureau or office 
should coordinate with the relevant Bureau Environmental Officer (BEO) 
and the Agency Environmental Coordinator (AEC) as soon as practicable. 
When time permits, rapid environmental review and documentation should 
be prepared to the greatest extent practicable in accordance with these 
procedures. These actions should be taken as soon as is necessary to 
ensure the protection and safety of the public. However, the Agency 
shall consider and mitigate the impacts that the response action could 
have on the human and natural environment when developing the response 
strategy. After immediate first response saving of life and property, 
if following the normal procedures below is not possible to continue 
preserving lives and property USAID will follow the CEQ guidance on 
Alternative Arrangements. Alternative arrangements do not waive the 
requirement to comply with NEPA, but establish an alternative means for 
NEPA compliance.
    (2) Where emergency circumstances make it necessary to take an 
action with significant environmental impact without observing the 
provisions of this regulation and the related CEQ regulation (40 CFR 
part 1500), USAID will consult with the CEQ about Alternative 
Arrangements. This consultation will be facilitated by the Agency 
Environmental Coordinator with support from the relevant Bureau and the 
General Counsel's Office. USAID and CEQ will limit such Alternative 
Arrangements to actions necessary to control the immediate impacts of 
the emergency. Other mid and long term actions remain subject to the 
below NEPA review.
    (3) Categorical exclusions. Where emergency circumstances make it 
necessary to take an action before a determination is made regarding 
whether an extraordinary circumstance would preclude the use of a 
Categorical Exclusion, the Responsible Action Officer must make the 
determination in concert with the relevant Bureau Environmental 
Officer.
    (4) Environmental Assessments. Where emergency circumstances make 
it necessary to take an action that requires an EA before the EA can be 
completed, the Responsible Action Officer must agree with the Bureau 
Environmental Officer to develop Alternative Arrangements to meet the 
requirements of these procedures and CEQ Regulations pertaining to 
Environmental Assessments. Alternative arrangements should focus on 
minimizing adverse environmental consequences of the proposed action 
and the emergency. To the maximum extent practical, these Alternative 
Arrangements should include the public notification and involvement 
that would normally be undertaken for an Environmental Assessment for 
the action at issue. The Bureau Environmental Officer may grant an 
Alternative Arrangement. Any Alternative Arrangement must be documented 
and notification provided to the Council on Environmental Quality with 
the facilitation by the Agency Environmental Coordinator at the 
earliest opportunity.
    (5) Environmental Impact Statements. (i) CEQ may grant Alternative 
Arrangements for, but not eliminate, NEPA compliance where emergency 
circumstances make it necessary to take actions with potential 
significant environmental impacts without observing other provisions of 
the CEQ Regulations (40 CFR 1506.11, CEQ Regulations). In these 
situations, the processing times may be reduced or, if the emergency 
situation warrants, preparation and processing of EISs may be 
abbreviated. A request for Alternative Arrangements must be submitted 
to CEQ. The Responsible Action Officer shall consult with the Agency 
Environmental Coordinator as early as possible so that the Agency 
Environmental Coordinator can notify CEQ as early as possible.
    (ii) For projects undertaken by an applicant, the Responsible 
Action Officer in conjunction with their Bureau Environmental Officer 
will inform the Agency Environmental Coordinator. The Agency 
Environmental Coordinator will consult CEQ about Alternative 
Arrangements for complying with NEPA and work with the Responsible 
Action Officer and Bureau Environmental Officer to develop and 
implement a time sensitive and workable solution.
    (d) Categorical exclusions. The following categories of actions 
have been found to not normally have a significant effect on the 
natural or physical environment and for which an Environmental 
Assessment or an Environmental Impact Statement is, absent 
extraordinary circumstances, not required:
    (1) Internal personnel, fiscal, management, and administrative 
activities, such as recruiting, processing, paying, recordkeeping, 
lease payments, rent and utility payments, medical care, resource 
management, budgeting, personnel actions, official travel, and 
reductions, increases, realignments, or relocation of personnel.
    (2) Actions at USAID owned, operated, or leased facilities 
involving routine facility operations and maintenance, repair, and 
grounds keeping, and acquisition actions and contracting actions for 
management and operation of government facilities. Examples include 
acquisition and payment of office supplies and utilities, equipment, 
claims and indemnities, printing and reproduction, transportation of 
goods, and information technology software and systems. To qualify for 
a Categorical Exclusion under this subsection, such actions must be 
implemented under any Greening the Government or comparable White House 
directives.
    (3) Minor rehabilitation, restoration, renovation, or 
revitalization of USAID owned, operated, or leased facilities to 
include: Replacement, acquisition, and installation of information 
technology and similar office equipment; and minor or small-scale 
construction of ancillary facilities on previously disturbed areas 
adjacent to or on the same property as existing facilities and 
compatible with current land use. To qualify for a Categorical 
Exclusion under this subsection, such actions must be implemented under 
any Greening the Government or comparable White House directives to the 
extent practicable.
    (4) Document and information exchanges.
    (5) Education, technical assistance, or training programs except to 
the extent such programs include activities directly or indirectly 
affecting the environment (such as construction facilities, etc.)
    (6) Controlled experimentation exclusively for the purpose of 
research and field evaluation which are confined to small areas, are 
carefully monitored, and that follow any applicable Federal

[[Page 62582]]

and State environmental and safety regulations. Small areas typically 
include controlled access facilities including laboratories, small 
plots of land, or evaluations of existing programs in limited 
geographic areas.
    (7) Analysis, studies, academic, or research workshops and 
meetings.
    (8) Institutional buildings grants to research and educational 
institutions in the United States such as those provided for under 
section 122(d) and Title XII of Chapter 2 of Part I of the Foreign 
Assistance Act (22 USCA sections 2151 p. (b) 2220a. (1979)); 
Construction of new facilities is not included.
    (9) To use a Categorical Exclusion, the following three screening 
conditions must be met:
    (i) The action has not been segmented. The BEO must determine that 
the action has not been segmented to meet the definition of a CE. 
Segmentation can occur when an action is broken down into small parts. 
The activity approved under a CE must be a single and complete project 
that operates with independent utility. The scope of an action must 
include the consideration of Connected Actions as defined by 40 CFR 
1508.25 and the effects when applying extraordinary circumstances must 
consider Cumulative Impacts as defined by 40 CFR 1508.7.
    (ii) No Extraordinary circumstances exist for the activity being 
considered under these NEPA procedures. If a determination is made that 
the action involves one or more Extraordinary Circumstances it would 
preclude the use of a CE (see paragraph (d) of this section).
    (iii) One CE encompasses the proposed action.
    Identify a CE that encompasses the proposed action. If multiple CEs 
could be applicable, proceed only when it is clear that the entire 
proposed action is covered by one CE. Any limitation raised in other 
potentially applicable CEs should be considered when determining 
whether it is appropriate to proceed without further analysis in an EA 
or EIS. If there is no appropriate single CE, then an EA or an EIS must 
be prepared before proceeding with the proposed action.
    (e) Extraordinary circumstances. If the action involves any of the 
following Extraordinary Circumstances, a Categorical Exclusion is 
precluded and the proposed action shall require additional 
environmental analysis through an Environmental Assessment or 
Environmental Impact Statement:
    (1) The potential for significant adverse direct or indirect impact 
on the environment, public health, or safety.
    (2) The proposed action is known or expected to impose uncertain or 
unique environmental risks.
    (3) The proposed action is of greater scope or size than is normal 
for this category of action.
    (4) The proposed action is known or expected to have adverse or 
significant adverse effect on federally listed threatened or endangered 
species, or their critical habitat.
    (5) The proposed action is known or expected to significantly 
affect national or international natural landmarks or any property with 
nationally significant historic, architectural, prehistoric, 
archeological, or cultural value.
    (6) The proposed action is known or expected to adversely affect 
domestic or international environmentally important natural resource 
areas such as parks, forests, wetlands, floodplains, significant 
agricultural lands, aquifer recharge zones, coastal zones, coral reefs, 
barrier islands, wild and scenic rivers, and significant fish or 
wildlife habitat.
    (7) The proposed action is known or expected to cause significant 
adverse air quality effects.
    (8) The proposed action is known or expected to have a significant 
effect on the pattern and type of land use (industrial, commercial, 
agricultural, recreational, residential) or growth and distribution of 
population including altering the character of existing residential 
areas.
    (9) The proposed action may not be consistent with state or local 
government, or federally-recognized Indian tribe approved land use 
plans or federal land management plans.
    (10) The proposed action will either procure or use pesticides in 
any quantity and whether funded by USAID or some other entity. USAID 
uses the term pesticide as defined by the US Environmental Protection 
Agency and includes chemical and biological substances.


Sec.  237.6  Procedures.

    For USAID activities not categorically excluded, an Environmental 
Assessment or Environmental Impact Statement must be prepared. In 
deciding whether to prepare an Environmental Assessment or 
Environmental Impact Statement, the Responsible Action Officer shall 
make an initial review in the early planning stages of a proposed 
action to identify and evaluate potential environmental effects of the 
actions and all reasonable measures which may be taken to mitigate 
adverse impacts and submit it to the relevant Bureau Environmental 
Officer for their review and written approval before proceeding. The 
BEO may require changes if in their judgment such are needed to ensure 
environmental soundness.
    (a) Scoping. Scoping shall commence as soon as the Agency is 
actively preparing to make a decision on one or more alternative means 
to accomplish a proposed activity.
    (1) Scoping identifies the significant potential environmental 
issues related to the proposed action and determines the focused scope 
of the issues to be addressed in the EA or EIS increasing its 
effectiveness and focusing resources on the key issues. Persons 
potentially affected by the environmental aspects of the proposed 
action shall be invited to participate in this Scoping process. Scoping 
is applicable to both the EIS process and EA processes and results in a 
written Scoping statement that includes the following:
    (i) A determination of the scope and significance of issues to be 
analyzed in the EA or EIS, including direct, indirect, and Cumulative 
Effects of the project and its Connected Actions on the environment.
    (ii) A brief discussion of issues identified but subsequently 
eliminated during the scoping process because they were thought not to 
have a significant impact on the environment, based on expert opinion, 
or were addressed in another recent environmental review process.
    (iii) A time line for preparation of the environmental analysis 
that includes a tentative planning and decision making schedule.
    (iv) A description of how the analysis will be conducted and the 
disciplines that will participate in the analysis.
    (v) A description of how the public will be consulted which at a 
minimum will include at the draft stage of the EA or EIS.
    (vi) Any public Environmental Assessments and other Environmental 
Impact Statements which are being or will be prepared by USAID or any 
other Federal agency that are related to but are not part of the scope 
of the impact statement under consideration.
    (vii) A list of any Cooperating Agencies identified by USAID or who 
ask to be given this official status and other environmental review and 
consultation requirements so the lead and Cooperating Agencies may 
prepare any other required analyses and studies concurrently with, and 
integrated with, the environmental impact statement.
    (2) The Scoping activities result in a Scoping Statement that shall 
be in writing and be reviewed and approved by the responsible Bureau 
Environmental Officer (BEO). Once approved by the BEO, the Scoping

[[Page 62583]]

Statement may be circulated as provided in paragraph (a)(3) of this 
section.
    (3) Circulation of scoping statement. In addition to its internal 
processing and review, USAID may circulate copies of the written 
scoping statement for an EA. For EIS level activities, the Agency shall 
circulate copies of the written scoping statement, together with a 
request for written comments to selected Federal agencies if the Agency 
believes comments by other Federal agencies will be useful in the 
preparation of an EA or Environmental Impact Statement. Comments 
received from reviewing federal agencies will be considered in the 
preparation of the Environmental Impact Statement and be included in 
the project file.
    (4) All final Scoping documents and EAs will be made available to 
the public on USAID's public Web site. To the extent that there is 
classified or administratively controlled information (such as contract 
or agreement sensitive material) it shall be redacted before the 
remaining parts of these documents are made available in this way.
    (b) Preparation of an Environmental Assessment. (1) Should an 
Environmental Assessment (EA) be required, the Bureau or Independent 
Office supporting the activity shall be responsible for its 
preparation.
    (2) A copy of the EA shall accompany the proposal throughout the 
Agency internal activity review and approval process.
    (3) If, on the basis of an EA, it is determined that an 
Environmental Impact Statement (EIS) is not required, a Finding of No 
Significant Impact (FONSI) as described in 40 CFR 1508.13 will be 
prepared.
    (4) The responsible Bureau Environmental Officer (BEO) will either 
approve in writing the FONSI or request reconsideration by the officer 
responsible for preparation of the EA and FONSI, stating the reasons 
for the request.
    (5) Content and form. The EA shall be based upon the Scoping 
Statement and shall address the following elements:
    (i)Summary. The summary shall stress the major conclusions, areas 
of controversy, if any, and the issues to be resolved. To the extent 
specific mitigating measures and Environmental Monitoring and 
Management Plan (EMMP) are required, they shall be listed in summary 
form here. Should mitigating measures and EMMP be required, they shall 
be provided, along with the entire EA, to the contracting or agreement 
officer and be required to be included in any acquisition or agreement 
documents that may be needed to implement the activity. This will 
ensure the contractor or grantee is fully informed of their 
environmental responsibilities and that funding is included to 
implement them.
    (ii) Purpose and need. This section shall briefly specify the 
underlying purpose and need of the proposed activity and discuss the 
range of alternatives considered but not analyzed to meet the project 
objectives.
    (iii) Alternatives including the proposed action. This section 
should present the environmental impacts of the proposal and its 
alternatives in comparative form that provides a clear basis for 
selection among project alternatives. The Alternatives Analysis section 
should explore and evaluate reasonable alternatives for detailed 
comparative consideration and evaluation. There shall be at least one 
practical Alternative to the recommended action plus a No Action 
Alternative. This section will also briefly discuss the reasons for 
eliminating those Alternatives which were not included in the detailed 
study. The document must also include a discussion of the No Action 
Alternative. Based on the comparative analysis of each Alternative, the 
Agency will identify the preferred Alternative if one exists.
    (iv) Affected environment. The EA shall succinctly describe the 
existing environmental baseline conditions of the area(s) to be 
affected by each of the alternatives for the proposed action. The 
descriptions shall be no longer than is necessary to understand the 
effects of the alternatives, but shall be sufficient to determine 
during implementation of the action the degree to which it is 
improving, harming or having no effect on the environment. Data and 
analyses in the EA shall be commensurate with the significance of the 
impact with less important material summarized, consolidated or simply 
referenced. This section may be brief to enable a greater focus on the 
analysis of environmental consequences in paragraph (b)(5)(v) of this 
section.
    (v) Environmental consequences. This information forms the analytic 
basis for the alternatives analysis under paragraph (b)(6)(iii) of this 
section. It will include the environmental impacts of the Alternatives; 
any adverse effects that cannot be avoided should the proposed action 
be implemented; and any irreversible or irretrievable commitments of 
resources which would be involved in the proposal should it be 
implemented. It should not duplicate discussions in paragraph 
(b)(6)(iii) of this section. This section of the Environmental 
Assessment should include discussions of direct environmental effects 
and their significance; indirect effects and their significance; 
Cumulative Impacts and Connected Actions, Environmental Justice, 
possible conflicts between the proposed action and land use plans, 
policies and controls for the areas concerned; energy requirements and 
conservation potential of various alternatives and mitigation measures; 
natural or depletable resource requirements and conservation potential 
of various requirements and mitigation measures; urban quality; 
historic and cultural resources and the design of the built 
environment, including the reuse and conservation potential of various 
alternatives.
    (vi) The EA will include appropriate mitigation measures to 
compensate for adverse environmental impacts of the preferred 
alternative, or the final alternative selected for funding and shall 
use the mitigation hierarchy as defined in 40 CFR 1508.20. This shall 
be in the form of an actionable Environmental Mitigation and Monitoring 
Plan to enable the Activity Manager, Contract Officer Representative 
(COR), or comparable officer to adaptively manage the activity for 
environmental soundness throughout implementation.
    (vii) List of preparers. The Environmental Assessment shall list 
the names and qualifications (expertise, experience, professional 
discipline) of the persons primarily responsible for preparing the 
Environmental Assessment or significant background papers.
    (viii) Appendix. An appendix or appendices may be prepared.
    (ix) Classified material. An EA will not normally include 
classified or administratively controlled material. However, there may 
be situations where environmental aspects cannot be adequately 
discussed without the inclusion of such material. The handling and 
disclosure of classified or administratively controlled material shall 
be governed by 22 CFR part 9. Those portions of an EA which are not 
classified or administratively controlled will be made available to 
persons outside the Agency as provided for in 22 CFR part 212.
    (x) Public distribution and review. If the EA results in a Finding 
of No Significant Impact (FONSI), the EA and proposed FONSI shall be 
made available for a 30 day public review and comment period before the 
FONSI is signed and a decision to take any action is made. If the EA 
results in a determination that an EIS is required, public 
participation shall be undertaken in accordance with

[[Page 62584]]

the procedures described in paragraph (b)(3) of this section.
    (c) Environmental Impact Statement. (1) Procedure and Content. If 
the Agency determines an Environmental Impact Statement is required at 
the initial stages of the project development, or as a result of a 
completed Environmental Assessment, the environmental impact statement 
and associated documentation will be prepared by the originating office 
in accordance with section 102(2)(c) of NEPA, this section, and the CEQ 
regulations. The responsible bureau or office will submit the document 
through the Agency Environmental Coordinator to the Administrator who, 
after such review as deemed necessary, will circulate the document in 
accordance with section 1502.19 of the CEQ regulations. Specifically, 
the following steps, as discussed in the CEQ regulations, will be 
followed in preparing an EIS:
    (i) A notice of intent to prepare a draft EIS will be published as 
described in 40 CFR 1501.7.
    (ii) Scoping, as described in 40 CFR 1501.7, will be conducted.
    (iii) The format and contents of the draft and final EIS shall be 
as discussed in 40 CFR part 1502.
    (iv) Comments on the Draft EIS (DEIS) shall be invited as set forth 
in 40 CFR 1503.1. The minimum period to be afforded for comments on a 
DEIS shall be 45 days. The Agency will identify any conflicting 
statutory mandates that would preclude the 45 day comment period. 
Emergency circumstances are described in Sec.  237.3 when compliance 
with standard NEPA procedures is not feasible.
    (v) The requirements of 40 CFR 1506.9 for filing of documents with 
the Environmental Protection Agency's Office of Federal Activities 
shall be followed.
    (vi) The responsible Bureau or Independent Office shall examine 
carefully the basis on which supportive studies have been conducted to 
assure that such studies are objective and comprehensive in scope and 
in depth.
    (2) Applicability. An EIS shall be prepared when agency actions 
potentially significantly affect:
    (i) The global commons;
    (ii) The environment of the United States (or its territories); or
    (iii) Other aspects of the environment at the discretion of the 
USAID Administrator.
    (3) Effects on the United States.--Content and form. An EIS 
relating to paragraph (a)(2) of this section shall comply with the CEQ 
Regulations (40 CFR part 1500) and these procedures.
    (4) Processing and review within USAID. (i) All USAID funded 
domestic activities and any amendments thereto are subject to these 
procedures prior to implementation of the approved activity unless 
otherwise exempted.
    (ii) The Bureau Environmental Officer's functions may not be 
delegated--other than to an appointed Deputy Bureau Environmental 
Officer, if there is one, and who will act in this decision making 
capacity only in the absence of the BEO.
    (A) In cases when a Draft and Final EIS is prepared, each will be 
reviewed and cleared by the Agency Environmental Coordinator and the 
Office of the General Counsel.
    (B) The Agency Administrator or Acting Administrator shall give 
final approval of an EIS. This may not be delegated other than to the 
Deputy Administrator who may only act in the capacity in the absence of 
the Administrator.
    (C) A public Record of Decision (ROD) stating what the decision 
was; identifying alternatives that were considered, including the 
environmentally preferable one(s); discussing any national policy 
considerations that entered into the decision; and summarizing an 
Environmental Monitoring and Management Plan (EMMP) to enforce 
applicable for any mitigation that may be required, will be prepared. 
This record of decision (ROD) will be prepared at the time the decision 
is made, or if appropriate, when the agency makes its recommendation 
for action to Congress. (See 40 CFR 1505.2). It will also be included 
along with the full Final EIS in the appropriate acquisition or 
agreement documents to ensure it is funded and fully implemented.
    (5) Environmental Mitigation and Monitoring Plans (EMMPs). Projects 
and programs for which Environmental Assessments, or Environmental 
Impact Statements have been prepared, and where adverse environmental 
impacts are anticipated, must include monitoring of the change in 
environmental conditions during project implementation, and monitoring 
of environmental mitigation measures. These are laid out in an 
Environmental Mitigation and Monitoring Plan (EMMP) that will be 
incorporated into appropriate acquisition or assistance agreements to 
ensure they are transparent, widely understood, and funded. This will 
require recording of baseline data prior to starting the proposed 
activity, and monitoring environmental conditions as the activity 
progresses. Originating offices of USAID will formulate activity 
specific monitoring procedures during the activity life cycle. 
Throughout the environmental analysis process, the Agency will consider 
mitigation measures to avoid or minimize environmental harm. The USAID 
Implementing Officer responsible for this will be the Activity Manager 
or the Contracting Officer's or Agreements Officer's Representative or 
similar officer who manages the activity. Mitigation measures include:
    (i) Avoiding the impact altogether, by eliminating the action or 
parts of the action, or by redesigning or redirecting the activity to 
eliminate such actions or parts of the action.
    (ii) Minimizing impacts by limiting the degree or magnitude of the 
action, its implementation, and its subsequent impacts on the 
environment.
    (iii) Rectifying the impact; by repairing, rehabilitating, or 
restoring the adverse effect of the proposed action on the environment.
    (iv) Reducing or eliminating the impact over time, by preservation 
and maintenance operations during the life of the action.
    (v) Compensating for the impact, by replacing or providing 
substitute resources or ecological functions.
    (6) Mitigation and monitoring for EA and EIS level analysis. (i) 
When the environmental analysis described in this Regulation proceeds 
to an EA or EIS, mitigation measures, if any, will be clearly assessed 
and those selected for implementation will be identified in the FONSI 
or the ROD. Only those practical mitigation measures that can 
reasonably be accomplished as part of a proposed alternative will be 
identified. The Agency is required to implement those identified 
mitigations, because they are commitments made as part of the Agency 
decision to proceed with the activity.
    (ii) Mitigation identified in a FONSI or ROD including any EMMP 
shall become part of the budget or funding document, or other legal 
document that implements the activity (i.e. leases, contracts, or 
grants) so that it may be transparently monitored and enforced.
    (iii) Progress of the identified mitigations will be monitored and 
documented through an Environmental Management and Monitoring Plan 
(EMMP) report prepared by the Agency or entity undertaking the activity 
on its behalf. The Contracts Officer's Representative (COR), Agreements 
Officer's Representative (AOR) or comparable USAID manager of the 
activity shall have the primary responsibility for this function.

[[Page 62585]]

    (iv) If an analysis of the selected mitigation measures 
demonstrates that the environmental impacts of the activity are no 
longer significant, an EA may result in a FONSI. If the Agency commits 
to performing the identified mitigation measures in order to reduce the 
level of significance of the impact, the FONSI must identify these 
mitigating measures, and they become legally binding and must be 
accomplished as the project is implemented. This is called a Mitigated 
FONSI. If any of the mitigation measures identified in the FONSI are 
not performed, and significant adverse environmental impacts could 
reasonably result, the Agency must prepare an EIS.
    (v) Potential mitigation measures that appear practical will be 
identified in the NEPA analysis. Practical measures are those that can 
be reasonably undertaken considering factors including: Excessive cost, 
logistics, technical feasibility, Agency resources, and environmental 
benefit. This exclusion may not be used as an excuse to avoid 
mitigation when a Bureau or Independent Office has failed to budget 
reasonable time and resources to address environmental issues. This 
will also not be accepted in cases when serious environmental harm will 
result. The expectation is that reasonable practical mitigative 
measures to reduce or eliminate potential adverse environmental impacts 
can be identified and funded, or that actions can be redesigned to 
avoid or minimize otherwise impractical mitigation. Budgets must 
include funding for mitigation measures for them to be considered 
practical. The project or activity cannot be undertaken until all 
required mitigation efforts are fully resourced, or until the lack of 
funding and resultant effects, are fully addressed in the NEPA 
analysis.
    (vi) The practical mitigation measures that were considered but 
rejected must be discussed, along with the reason for the rejection, 
within the EA or EIS. If they occur in an EA, their rejection may lead 
to an EIS, if the resultant unmitigated environmental impacts are 
determined significant.
    (vii) The Agency or other appropriate cooperating agency will 
implement mitigations, an EMMP and other conditions established in the 
EA or EIS, or commitments made in the FONSI or ROD. Legal documents 
implementing the action (such as contracts, permits, and grants) will 
specify mitigation measures to be performed. Penalties against a 
contractor for noncompliance may also be specified as appropriate. 
Specification of penalties should be fully coordinated with the 
appropriate USAID legal advisor.
    (viii) A monitoring and enforcement program for any mitigation will 
be adopted and summarized in the NEPA documentation. Whether adoption 
of a monitoring and enforcement program is applicable (40 CFR 
1505.2(c)) and whether the specific adopted action requires monitoring 
(40 CFR 1505.3) may depend on the following:
    (A) A change in environmental conditions or project activities 
assumed in the EIS (such that original predictions of the extent of 
adverse environmental impacts may be too limited);
    (B) The outcome of the mitigation measure is uncertain (for 
example, new technology);
    (C) Major environmental controversy remains associated with the 
selected alternative; or
    (D) Failure of a mitigation measure, or other unforeseen 
circumstances, could result in a failure to meet achievement of 
requirements (such as adverse effects on federal or state listed 
endangered or threatened species, important historic or archaeological 
sites that are either listed or eligible for nomination to the National 
Register of Historic Places, wilderness areas, wild and scenic rivers, 
or other public or private protected resources).
    (E) Monitoring is an integral part of any mitigation system and 
involves enforcing the performance of the mitigation measures and 
determining the effectiveness of the mitigation measures.
    (F) Enforcement monitoring ensures that mitigation is being 
performed as described in the NEPA documentation, mitigation 
requirements and penalty clauses are written into any contracts, leases 
or similar implementing agreements, and required provisions are 
enforced. The development of an enforcement monitoring program is 
governed by who will actually perform the mitigation: A contractor, a 
cooperating agency, a grantee, or similar entity or by the Agency 
itself. The Agency is ultimately responsible for performing any 
mitigation activities required under its environmental compliance 
documents. All monitoring results will be sent to the responsible 
Bureau Environmental Officer. The Agency Environmental Coordinator may 
review such results to ensure consistent Agency-wide compliance.
    (G) Effectiveness monitoring measures the success of the mitigation 
effort and/or the environmental benefit. In establishing the monitoring 
system in the EMMP, the Implementing Officer should coordinate the 
monitoring with their appropriate Bureau Environmental Officer.
    (ix) The monitoring program should be established before the action 
begins. At this stage, any necessary contracts, grants, funding, and 
manpower assignments must be initiated.
    (x) If the mitigations are effective, the monitoring should be 
continued as long as the mitigations are needed to address the adverse 
impacts of the activity.
    (xi) If the mitigations were designed to reduce the level of 
adverse environmental impact below the level of significance and are 
shown ineffective, the Agency shall re-examine the mitigation measures 
and resolve the inadequacies of the mitigation through corrective 
actions or appropriate contingency mitigations that appropriately 
reduce the adverse environmental impact below the level of 
significance. If the approved mitigation measures and any subsequent 
corrective actions are shown to be ineffective, the Agency may be 
required to prepare an EIS.
    (xii) This information will also be reported in summary in the 
relevant USAID unit's annual Operational Plan (OP) or equivalent in the 
Environmental Compliance Report (ECR) or equivalent chapter.
    (7) Additional information--(i) Significant impact determined. If 
an activity receives a FONSI through the EA process and then the 
activity is later revised or new information becomes available which 
indicates that a proposed action is likely to have a significant 
environmental impact then an EIS will be prepared as appropriate.
    (ii) No significant impact determined. If an activity is determined 
to have potential for a significant environmental impact and the 
activity is later revised or new information becomes available that 
reduces the environmental impact below the level of significance, an 
amended EA may be performed.
    (iii) Adaptive management. Completed Categorical Exclusions, 
Environmental Assessments and Environmental Impact Statements will be 
amended and processed appropriately if there are substantive changes in 
the project or program; new activities, additional funds, or time 
extensions added; or, if significant new information becomes available 
which relates to the potential impact of the project, program, 
activity, or amendment on the environment that was not considered at 
the time the EA or EIS was approved. When ongoing programs are revised 
to incorporate a change in scope or nature, a determination will be 
made as to whether such change may have an

[[Page 62586]]

environmental impact not previously assessed. If so, the procedures 
outlined in this part will be followed.
    (iv) Classified material. An EA or EIS will not normally include 
classified or administratively controlled material. However, there may 
be situations where environmental aspects cannot be adequately 
discussed without the inclusion of such material. The handling and 
disclosure of classified or administratively controlled material shall 
be governed by 22 CFR part 9. Those portions of an EA or EIS which are 
not classified or administratively controlled will be made available to 
persons outside the Agency as provided for in 22 CFR part 212.


Sec.  237.7  Pesticide procedures.

    (a) Actions or projects. Except as provided in paragraph (h) of 
this section, all proposed actions or projects involving procurement or 
use, or both, of pesticides--whether by USAID or a grantee, contractor 
or other partner--shall be subject to the procedures prescribed in 
paragraph (b) of this section. These procedures shall also apply, to 
the extent permitted by agreements entered into by USAID before the 
effective date of these pesticide procedures, to such projects that 
have been authorized but for which pesticides have not been procured as 
of the effective date of these pesticide procedures.
    (b) When a project includes procurement or use, or both, of 
pesticides registered for the same or similar uses by USEPA without 
restriction, the Environmental Assessment or Environmental Impact 
Statement for the project shall include a separate section evaluating 
the economic, social and environmental risks and benefits of the 
planned pesticide use to determine whether the use may result in 
significant environmental impact. Factors to be considered in such an 
evaluation shall include, but not be limited to the following:
    (1) The USEPA registration status of the requested pesticide;
    (2) The basis for selection of the requested pesticide;
    (3) The extent to which the proposed pesticide use is part of an 
integrated pest management program;
    (4) The proposed method or methods of application, including 
availability of appropriate application and safety equipment;
    (5) Any acute and long-term toxicological hazards, either human or 
environmental, associated with the proposed use and measures available 
to minimize such hazards;
    (6) The effectiveness of the requested pesticide for the proposed 
use;
    (7) Compatibility of the proposed pesticide with target and non-
target ecosystems;
    (8) The conditions under which the pesticide is to be used, 
including climate, flora, fauna, geography, hydrology, and soils;
    (9) The availability and effectiveness of other pesticides or 
nonchemical control methods;
    (10) The provisions made for training of users and applicators; and
    (11) The provisions made for monitoring the use and effectiveness 
of the pesticide.
    (c) In those cases where the evaluation of the proposed pesticide 
use in the EA indicates that the use will significantly affect the 
human environment, the EA will include a recommendation for the 
preparation of an Environmental Impact Statement. An EIS may be 
prepared without an EA if the use of pesticides or other aspect of the 
project under consideration has the potential for a significant 
environmental impact.
    (d) When the pesticide evaluation section of the EA or EIS does not 
indicate a potentially unreasonable risk arising from the pesticide 
use, mitigation measures shall be included as appropriate.
    (e) When a project includes procurement or use, or both, of any 
pesticide by the USEPA on the basis of user hazard, the procedures set 
forth in paragraph (b) of this section will be followed. In addition, 
the EA or EIS will include an evaluation of the user hazards associated 
with the proposed USEPA restricted uses.
    (f) Only pesticides that are currently registered for the same or 
similar uses by the USEPA may be procured or used for Agency funded 
projects that occur in the United States or US territories. If a USEPA 
registered pesticide is approved for procurement or use in a USAID 
funded action and at some point during the action USEPA subsequently 
cancels the registration, USAID will order the contractor or grantee to 
stop the procurement or use of that pesticide and will immediately 
undertake an amendment to the EA or EIS to decide on an appropriate 
USEPA registered replacement pesticide.
    (g) If the project includes the procurement or use, or both of 
pesticides but the specific pesticides to be procured or used cannot be 
identified at the time the EA or EIS is prepared, the procedures 
outlined in paragraphs (a) through (c) of this section will be followed 
when the specific pesticides are identified and before procurement or 
use is authorized.
    (h) Exceptions to pesticide procedures. The procedures set forth in 
paragraph (b) of this section shall not apply to the following actions 
or projects under emergency conditions. Emergency conditions shall be 
deemed to exist when it is determined by the Administrator, USAID, in 
writing that:
    (1) An unforeseeable and significant pest outbreak has occurred or 
is imminent; and
    (2) Significant health problems (either human or animal) or 
significant economic problems will occur without the prompt use of the 
proposed pesticide; and
    (3) Insufficient time is available before the pesticide must be 
used to evaluate the proposed use in accordance with the provisions of 
this regulation.
    (4) Actions or Projects including assistance for procurement or 
use, or both, of pesticides for controlled laboratory research or 
limited controlled access, small area field evaluation purposes by or 
under the supervision of action or project research personnel. In such 
instances, however, USAID will ensure that the manufacturers of the 
pesticides provide toxicological and environmental data necessary to 
safeguard the health or research personnel and the quality of the local 
environment in which the pesticides will be used. Furthermore, treated 
crops will not be used for human or animal consumption unless 
appropriate tolerances have been established by USEPA and the rates and 
frequency of application, together with the prescribed pre-harvest 
intervals, do not result in residues exceeding such tolerances. This 
prohibition does not apply to the feeding of such crops to animals for 
controlled research purposes. Any pesticides used under this exception 
that are not registered by USEPA must be registered before they can be 
recommended for use in any regular USAID action or project, and 
successfully go through the EA or EIS process in this regulation.


Sec.  237.8  Genetically modified organisms.

    (a) If projects or activities will potentially involve the 
procurement or use of genetically modified organisms in research, field 
trials, or dissemination, the Agency biosafety staff, in Washington, 
must review and approve it for compliance with applicable U.S. 
requirements before the obligation of funds and before the transfer, 
testing, or release of biotechnology products into the environment.
    (b) This biosafety review is limited to the safety aspects of the 
proposed

[[Page 62587]]

activities and typically involves external scientific peer review or 
demonstration of comparable safety oversight by other expert U.S. 
Federal agencies. The biosafety review cannot be waived or delegated.
    (c) A biosafety review precludes the use of a categorical exclusion 
for the proposed activity. The EA or EIS for the activity will include 
the results of the biosafety review.


Sec.  237.9  Endangered species.

    An EIS must be prepared if a proposed project, program, or activity 
may adversely affect a federally listed threatened or endangered 
species, or adversely modify its critical habitat. It is USAID policy 
to conduct its Agency operations in a manner that is sensitive to the 
protection of endangered or threatened species and their critical 
habitats. The EIS for each project, program or activity having an 
effect on the environment shall specifically determine whether the 
project, program or activity will have an effect on endangered or 
threatened species, or critical habitat.


Sec.  237.10  Filing and publishing.

    All Draft, Final and Supplemental Environmental Impact Statements 
shall be filed electronically with USEPA's Office of Federal Activities 
as required in 40 CFR 1506.9. They must be filed no earlier than they 
are transmitted to Cooperating Agencies and made available to the 
public. This assures that the EIS is received by all interested parties 
by the time the USEPA Notice of Availability appears in the Federal 
Register, and therefore allows for the full minimum review periods 
prescribed in 40 CFR 1506.10. Such filings will be in collaboration 
with the relevant Bureau Environmental Officer and the Agency 
Environmental Coordinator.


Sec.  237.11  Public hearings.

    (a) In most instances USAID will be able to gain the benefit of 
public participation in the process through circulation of draft 
scoping documents, draft final EAs and EISs and notice of public 
availability as set out at 40 CFR 1506.6. However, in some cases the 
Administrator may wish to hold physical public hearings on a Draft 
Environmental Impact Statement (DEIS). In deciding whether or not such 
a public hearing is appropriate and making a recommendation to the 
Administrator, heads of Bureaus or Independent Offices in conjunction 
with the Agency Environmental Coordinator should consider:
    (1) The magnitude of the proposal in terms of economic costs, the 
geographic area involved, and the uniqueness or size of commitment of 
the resources involved;
    (2) The degree of interest in the proposal as evidenced by requests 
from the public and from Federal, state and local authorities, and 
private organizations and individuals, that a hearing be held;
    (3) The complexity of the issue and likelihood that information 
will be presented at the hearing which will be of assistance to the 
Agency; and
    (4) The extent to which public involvement already has been 
achieved through other means, Such as earlier public hearings, meetings 
with citizen representatives, and/or written comments on the proposed 
action.
    (b) If public hearings are held, the documents to be discussed 
should be made available to the public at least fifteen (15) days prior 
to the time of the public hearings, and a notice will be placed in the 
Federal Register giving the subject, time and place of the proposed 
hearings. To the extent possible, such public hearings shall be held in 
the local community or jurisdiction where the action is proposed.


Sec.  237.12  Records and reports.

    Agency Bureaus and Independent Offices will maintain copies of 
finalized NEPA compliance documents and approved decision documents as 
part of the official project files, and make them freely available to 
the public by posting them on the Agency's internet pages. To the 
extent any national security classified information or procurement 
sensitive information is included, those portions will be redacted 
before making such documents available to the public.

Angelique M. Crumbly,
Agency Regulatory Official, U.S. Agency for International Development.
[FR Doc. 2014-24828 Filed 10-17-14; 8:45 am]
BILLING CODE P


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