# National Environmental Policy Act

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2025-12326

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 3, 2025
- **Citation:** 90 FR 29632

## Text

DEPARTMENT OF AGRICULTURE
7 CFR Parts 1b, 372, 520, 650, 799, 1970, and 2407
36 CFR Part 220
[USDA-2025-0008]
RIN 0503-AA86
National Environmental Policy Act

AGENCY:

Agriculture (USDA).

ACTION:

Interim final rule; request for public comment.

SUMMARY:

This interim final rule modifies the U.S. Department of Agriculture (USDA) regulations implementing the National Environmental Policy Act (NEPA) and removes various USDA agency regulations for implementing NEPA. USDA is taking this action in response to the Council on Environmental Quality's rescission of its NEPA implementing regulations (which USDA's NEPA regulations were designed to supplement), statutory changes to NEPA, executive orders, and case law. Comments are voluntarily requested on this action to inform USDA's decision-making.

DATES:

This rule is effective July 3, 2025. Comments concerning this rule must be received by July 30, 2025.

ADDRESSES:

Comments, identified by USDA-2025-0008, should be sent via one of the following methods:

•
Federal eRulemaking Portal:

https://www.regulations.gov.
Follow the instructions for submitting comments.

•
Mail:
USDA, 1400 Independence Ave. SW, Washington, DC 20250-0108.

Comments should be confined to issues pertinent to the interim final rule, explain the reasons for any recommended changes, and reference the specific section and wording being addressed, where possible. All timely comments will be placed in the record and be available for public inspection at
https://www.regulations.gov,
including any personal information provided. Do not submit any information you consider to be private, confidential business information, or other information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT:

Scott Vandegrift, Chief Environmental Review and Permitting Officer, Office of the Secretary, 202-720-5166,
SM.OSEC.NRE.NEPA@usda.gov.
Individuals who use telecommunications devices for the hearing-impaired may call 711 to reach the Telecommunications Relay Service, 24 hours a day, every day of the year, including holidays.

SUPPLEMENTARY INFORMATION:

I. Background

On February 25, 2025, CEQ issued an interim final rule rescinding their regulations in response to Executive Order (E.O.) 14154,
Unleashing American Energy.

CEQ's interim final rule rescinded its NEPA implementing regulations, including 40 CFR parts 1500, 1501, 1502, 1503, 1504, 1505, 1506, 1507, and 1508. The effective date of CEQ's interim rule was April 11, 2025. The background of CEQ's regulations, recent litigation, and relevant executive orders leading up to their February 25, 2025, interim final rule support the rationale underlying this interim final rule.

The Department of Agriculture (USDA) is issuing this interim final rule to revise, move and republish, or remove portions of USDA's existing regulations for implementing the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321-4347, as amended by the Fiscal Responsibility Act of 2023, as well as add new portions to the USDA NEPA implementing regulations for three independent reasons.

First, CEQ's regulations were repealed effective April 11, 2025; see
Removal of National Environmental Policy Act Implementing Regulations,
90 FR 10610 (Feb. 25, 2025). USDA and its agencies' regulations were promulgated as a “supplement” that “incorporates and adopts” the CEQ's NEPA regulations, see 7 CFR 1b.1(a). However, the CEQ regulations (40 CFR parts 1500 through 1508) no longer provide a valid foundation for USDA NEPA regulations. Second, Congress recently amended NEPA in significant part, in the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, signed on June 3, 2023, in which Congress added substantial detail and direction in Title I of NEPA regarding procedural issues that CEQ and individual acting agencies had previously addressed in their own procedures. USDA recognized the need to update its regulations considering these significant legislative changes. Since USDA's regulations were originally designed as a supplement to CEQ's NEPA regulations, USDA had been awaiting CEQ action before revising its regulations, consistent with CEQ direction.
See
40 CFR 1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However, with CEQ's regulations now rescinded, and with USDA's NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that USDA move quickly to conform its procedures to the statute as amended. And third, the U.S. Supreme Court recently issued a landmark decision in
Seven County Infrastructure Coalition
v.
Eagle County, Colorado,
145 S. Ct. 1497 (2025), in which it decried the “transform[ation]” of NEPA from its roots as “a modest procedural requirement,” into a significant “substantive roadblock” that “paralyze[s]” “agency decision-making.”
Id.
at 1507, 1513 (quotations omitted). The Supreme Court explained that part of that problem had been caused by decisions of lower courts, which it rejected, issuing a “course correction” mandating that courts give “substantial deference” to reasonable agency conclusions underlying its NEPA process.
Id.
at 1513-14. But the Court also acknowledged, and through its course correction sought to address, the effect on “litigation-averse agencies” which, in light of judicial “micromanage[ment],” had been “tak[ing] ever more time and [ ] prepar[ing] ever longer EISs [environmental impact statements] for future projects.”
Id.
at 1513. USDA incorporated this case's holdings into these procedures, availing itself of the latest information and guidance from the Court for its future NEPA application.

These reasons now prompt USDA to publish this interim final rule to revise, move and republish, or remove portions of the USDA NEPA implementing regulations, as well as add new portions, given the CEQ NEPA regulations no longer provide a foundation for USDA NEPA regulations and leave the Department without necessary interpretation of, and implementing procedures for, NEPA. NEPA is a vital part of Federal agency planning and decision-making, and USDA agencies need clear standards and guidelines as soon as possible to conduct the work of providing critical services and funds to Americans, as directed by Congress. Conducting a standard rulemaking process would impede USDA's planning and decision-making for longer than necessary and would be impracticable and contrary to the public interest. For these reasons, USDA is using the interim final rule process. (Also see discussion under Section III. for additional rationale for using the interim rule process.)

National Environmental Policy Act

Congress enacted NEPA to declare a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote

the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and [to] fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a).

As amended by the Fiscal Responsibility Act of 2023, Public Law 118-5, NEPA furthers this national policy by requiring Federal agencies to prepare a “detailed statement” for proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. 4332(2)(C). This statement must address: (1) the reasonably foreseeable environmental impacts of the proposed agency action; (2) the reasonably foreseeable adverse environmental impacts that cannot be avoided; (3) a reasonable range of alternatives to the proposed agency action that are technically and economically feasible and meet the purpose and need of the proposal, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative; (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action (or action alternatives). 42 U.S.C. 4332(2)(C).

NEPA further mandates that Federal agencies ensure the professional and scientific integrity of environmental documents; use reliable data and resources when carrying out NEPA; and study, develop, and describe technically and economically feasible alternatives. 42 U.S.C. 4332(2)(D)-(F). NEPA provides procedures for making threshold determinations about whether an environmental document must be prepared and, if so, which type of environmental document. 42 U.S.C. 4336(a)-(b).

NEPA identifies three levels of review—categorical exclusion, environmental assessment, and environmental impact statement. NEPA § 107, 42 U.S.C. 4336a. A categorical exclusion is a “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of [NEPA] section 102(2)(C).” NEPA § 111(1), 42 U.S.C. 4336e(1). An environmental assessment is a “concise” document “set[ting] forth the basis of [an] agency's finding of no significant impact or determination that an environmental impact statement is necessary,” prepared in connection with a proposed agency action that does not have a significant impact or the significance of whose impact is unknown. NEPA § 106(b)(2), 42 U.S.C. 4336(b)(2). An environmental impact statement is a detailed statement analyzing a proposed agency action with reasonably foreseeable significant impacts, governed by the provisions of NEPA §§ 102(2)(C), 106(b)(1); 42 U.S.C. 4332(2)(C), 4336(b)(1).

NEPA does not mandate particular results or substantive outcomes.
Seven County,
145 S. Ct., at 1510. Rather, NEPA requires Federal agencies to consider the environmental effects of proposed actions as part of Federal agency decision-making processes. As amended by the Fiscal Responsibility Act, NEPA provides additional requirements to facilitate timely and unified Federal reviews, including provisions clarifying lead, joint lead, and cooperating agency designations, generally requiring the development of a single environmental document, directing agencies to develop procedures for proposal sponsors to prepare environmental assessments and environmental impact statements, and prescribing page limits and deadlines. NEPA § 107, 42 U.S.C. 4336a. NEPA also sets forth the circumstances under which agencies may rely on programmatic environmental documents, NEPA § 108, 42 U.S.C. 4663b, and adopt and use another agency's categorical exclusions, NEPA § 109, 42 U.S.C. 4336c.

II. Basis for Consolidating and Revising USDA's NEPA Regulations

A. USDA NEPA Regulations

In 1974, the Secretary of Agriculture issued Memorandum No. 1695, Supplement 4 (Revised), to establish guidelines for the preparation of environmental impact statements and compliance with other procedural requirements of § 102(2) of the National Environmental Policy Act (NEPA). On May 1, 1979 (44 FR 25606) and July 30, 1979 (44 FR 44802), the Department of Agriculture (USDA) proposed and finalized rules setting forth policies and procedures for compliance with NEPA and the Council on Environmental Quality's (CEQ) implementing regulations (40 CFR parts 1500 through 1508). On occasion, the Department has further amended its NEPA regulations to refine and adjust to better meet its organizational and program needs. See 44 FR 44802, 46 FR 47747, 48 FR 11403, 60 FR 66481, 76 FR 4802.

USDA promulgated its current regulations in 1995 (60 FR 66481, Dec. 22, 1995), to “[supplement] the regulations for the implementation of the National Environmental Policy Act (NEPA), for which regulations were published by the CEQ in 40 CFR parts 1500 through 1508 [and incorporate and adopt] those regulations.” Subtitle A, part 1b.1 of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 1b). USDA NEPA regulations were dependent upon provisions in the 1978 CEQ regulations. Similarly, individual USDA agency NEPA regulations expressly state that their “purpose” is to supplement and implement CEQ regulations:

(1) Agricultural Research Service, subtitle B, chapter V, part 520, of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 520): “These procedures incorporate and supplement, and are not a substitute for, CEQ regulations under 40 CFR parts 1500-1508, and Department of Agriculture NEPA Policies and Procedures under 7 CFR part 1b.” (7 CFR 520.1);

(2) Animal Plant Health and Inspection Service, subtitle B, chapter III, part 372, of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 372): “These procedures implement section 102(2) of the National Environmental Policy Act (NEPA) by assuring early and adequate consideration of environmental factors in Animal and Plant Health Inspection Service planning and decision-making and by promoting the effective, efficient integration of all relevant environmental requirements under NEPA. The goal of timely, relevant environmental analysis will be secured principally by adhering to NEPA implementing regulations (40 CFR parts 1500-1508), especially provisions pertaining to timing (§ 1502.5), integration (§ 1502.25), and scope of analysis (§ 1508.25).” (7 CFR 372.1);

(3) Farm Service Agency, subtitle B, chapter VII, subchapter G, part 799, of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 799): “This part: . . . (2) Establishes FSA procedures to implement the (i) National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321 through 4370); (ii) CEQ regulations (40 CFR parts 1500 through 1518); and (iii) USDA NEPA regulations (§§ 1b.1 through 1b.4 of this title).” (7 CFR 799.1);

(4) National Institute of Food and Agriculture, subtitle B, chapter XXXIV, part 3407, of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 3407): “The purpose of this regulation is to supplement the regulations for implementation of NEPA established by the CEQ and codified at 40 CFR parts

1500-1508, as adopted by USDA in 7 CFR part 1b.” (7 CFR 3407.1);

(5) Natural Resources Conservation Service, subtitle B, chapter VI, subchapter F, part 650, of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 650): “The procedures included in this rule supplement CEQ's NEPA regulations, 40 CFR parts 1500-1508. CEQ regulations that need no additional elaboration to address NRCS-assisted actions are not repeated in this rule, although the regulations are cited as references. The procedures include some overlap with CEQ regulations. This is done to highlight items of importance for NRCS. This does not supersede the existing body of NEPA regulations.” (7 CFR 650.1);

(6) Rural Development, subtitle B, chapter XVIII, subchapter H, part 1970, of title 7 of the Code of Federal Regulations (hereinafter 7 CFR 1970): “This part also supplements the CEQ regulations implementing the procedural provisions of NEPA, 40 CFR parts 1500 through 1508. To the extent appropriate, the agency will take into account CEQ guidance and memoranda.” (7 CFR 1970.1); and

(7) U.S. Forest Service, chapter II, part 220, of title 36 of the Code of Federal Regulations (hereinafter 36 CFR 220): “This part establishes Forest Service, U.S. Department of Agriculture (USDA) procedures for compliance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321-4347) and the CEQ regulations for implementing the procedural provisions of NEPA (40 CFR parts 1500 through 1508) . . . This part supplements and does not lessen the applicability of the CEQ regulations and is to be used in conjunction with the CEQ regulations and USDA regulations at 7 CFR part 1b.” (36 CFR 220.1).

Departmental and agency NEPA regulations have been largely organizational and technical, with limited substantive content. The Department's past judgment has been that effective NEPA implementation could be achieved by reliance on a policy statement in 7 CFR 1b.2 and individual USDA agency NEPA regulations for tailored technical procedures. For the reasons described above, the Department now believes that a change is necessary to advance the Department's mission in an efficient, flexible, and innovative manner while ensuring the conservation and protection of the environment.

USDA has analyzed how best to respond to the CEQ's interim final rule and fulfill NEPA's statutory requirements while allowing for efficient program implementation. In the Department's judgment, given that NEPA is a procedural statute that simply directs consideration of reasonably foreseeable environmental impacts, it is sufficient for the Department to issue a set of uniform procedures, and it is not necessary for each agency with NEPA responsibilities across the Department to supplement the Department NEPA regulations. Therefore, USDA is proposing to correct course and right-size its NEPA regulations consistent with applicable law.

B. USDA Agency-Specific NEPA Regulation Summaries

1. Statement of Purpose

USDA's new NEPA implementing procedures, as adopted via this interim final rule, are a more faithful implementation of the statute as amended in 2023 than its old procedures. These procedures implement major structural features of the 2023 amendments, such as deadlines and page limits for environmental assessments and environmental impact statements, as directed at NEPA § 107(g), 42 U.S.C. 4336(g), and provide that USDA will complete preparation of these documents within the maximum length and on the timeline that Congress intends. They incorporate Congress's definition of “major Federal action” and the exclusions thereto, as codified at NEPA § 111(10), 42 U.S.C. 4336e(10). They incorporate Congress's mandated procedure for determining the appropriate level of review under NEPA, as codified in NEPA § 106, 42 U.S.C. 4336. They incorporate Congress's direction with respect to establishment, adoption, and application of categorical exclusions, as codified at NEPA § 111(10), 42 U.S.C. 4336e(10). They provide procedures governing project-sponsor-prepared environmental assessments and environmental impact statements, as directed at NEPA § 107(f), 42 U.S.C. 4336a(f). And they incorporate Congress's revision to the requirements for what an agency must address in its environmental impact statements, as codified at NEPA § 102(2)(C), 42 U.S.C. 4332(2)(C), and Congress's requirement that public notice and solicitation of comment be provided when issuing a notice of intent to prepare an environmental impact statement, as directed at NEPA § 107(c), 42 U.S.C. 4336a(c). All of these are crucial features of Congress's policy design and its purpose in the 2023 amendments that NEPA review be more efficient and certain.

Moreover, all of these respond to the President's directive in E.O. 14154; and all of these reflect the Supreme Court's recent and unequivocal statement that NEPA is a purely procedural statute. The Department is conscious of the Supreme Court's admonition that NEPA review has grown out of all proportion to its origins of a “modest procedural requirement,” creating, “ `under the guise' of just a little more process,” “[d]elay upon delay, so much so that the process seems to `borde[r] on the Kafkaesque.' ”
Seven County,
145 S. Ct. at 1513-1514. These procedures, therefore, are intended to align NEPA with its Congressionally mandated dimensions, reflecting the guidance given also by the President and the Supreme Court, and making review under it faster, more flexible, and more efficient.

In reaching this decision, USDA acknowledges that third parties may claim to have reliance interests in USDA's existing NEPA procedures. But revised agency procedures will have no effect on ongoing NEPA reviews, where USDA, following CEQ guidance, has held it will continue to apply existing applications. Moreover, as the Supreme Court has just explained, NEPA “is a purely procedural statute” that “imposes no substantive environmental obligations or restrictions.”
Seven County,
145 S. Ct. at 1507. Any asserted reliance interests grounded in substantive environmental concerns are not in accord with the best meaning of the law and are entitled to “no . . . weight.”
Dep't of Homeland Sec.
v.
Regents of the Univ. of California,
140 S. Ct. 1891, 1914 (2020).

Because reliance interests are inherently backward-looking, it is unclear how any party could assert reliance interests in
prospective
procedures. To the extent such interests exist, the Department holds that they are “outweigh[ed]” by “other interests and policy concerns.”
Id.
Namely, the complex web of regulations that preexisted the 2023 amendments to NEPA and the new Procedures repeatedly “led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation,” which in turn has meant that “[f]ewer projects make it to the finish line,” or even “to the starting line.”
Seven County,
145 S. Ct. at 1513-14. This has increased the cost of projects dramatically, “both for the agency preparing the EIS and for the builder of the project,” resulting in systemic harms to America's infrastructure and

economy.
Id.
Correspondingly, the wholesale revision and simplification of this regime, effectuated by these procedures, is necessary to ensure efficient and predictable reviews, with significant upsides for the economy and for projects of all sorts. This set of policy considerations drastically outweighs any claimed reliance interests in the preexisting procedures.

USDA has revised its NEPA implementing regulations to conform to the 2023 statutory amendments, to respond to President Trump's direction in E.O. 14154 to, “[c]onsistent with applicable law, prioritize efficiency and certainty over any other objectives, including those of activist groups, that do not align with the policy goals set forth in section 2 of [that] order or that could otherwise add delays and ambiguity to the permitting process,” and to address the pathologies of the NEPA process and NEPA litigation as identified by the Supreme Court. Where USDA has retained an aspect of its preexisting NEPA implementing procedures, it is because that aspect is compatible with these guiding principles; where USDA has revised or removed an aspect, it is because that aspect is not so compatible.

2. General Overview of Changes

USDA is modifying the department-level NEPA regulations found at 7 CFR 1b to provide a valid foundation from which USDA mission areas, agencies, and staff offices (or subcomponents) implement NEPA. 7 CFR 1b would primarily retain and move the placement of the following information currently contained in 7 CFR 1b and the individual agency NEPA regulations below: categorical exclusions, which includes a list of USDA agencies and offices excluded from completing an environmental assessment or environmental impact statement; and emergency action provisions. Some additional sections from agency-specific regulations are also retained, as described in the agency-specific regulation discussions listed below. Except for the information to be moved to the revised 7 CFR 1b regulation, the following individual agency NEPA regulations will be rescinded in full:

—Agricultural Research Service: 7 CFR 520;

—Animal and Plant Health Inspection Service: 7 CFR 372;

—Farm Service Agency: 7 CFR 799;

—National Institute of Food and Agriculture: 7 CFR 3407;

—Natural Resources Conservation Service: 7 CFR 650;

—Rural Development: 7 CFR 1970; and

—U.S. Forest Service: 36 CFR 220.

The following summaries capture additional specific changes that are occurring for each affected USDA regulation. For all regulations, references to CEQ's rescinded NEPA implementing regulations (40 CFR parts 1500 through 1508) were removed. Where USDA agency NEPA regulations cited portions of the agency regulation that are now being rescinded, those references were also removed and revised to refer to the applicable section in the revised 7 CFR 1b regulation. Where USDA agency NEPA regulations used agency-developed terms, such as those associated with agency-developed forms and other document types, these have been generalized to allow for the application of consistent Department implementing procedures for NEPA. As discussed previously, USDA agencies will be able to issue agency-specific procedures through technical and program guidance that aligns with NEPA and the Department regulations at 7 CFR 1b.

3. USDA Departmental NEPA Regulations (7 CFR 1b)

USDA is revising the department-level NEPA regulations at 7 CFR 1b to provide necessary guidance and direction for implementing NEPA in the absence of the CEQ NEPA implementing regulations, as rescinded effective April 11, 2025.

With the CEQ NEPA implementing regulations having been rescinded, USDA identified opportunities to reduce redundant and duplicative regulation revision efforts for agency-specific NEPA regulations and instead establish necessary direction at the department-level. This allows the Department to establish consistency across the subcomponents, where desired, in how NEPA is implemented.

The following provides a summary of what is included or being revised in each section of the department-level NEPA regulations, as well as the rationale for the changes.

7 CFR 1b.1—Purpose:
Previous paragraphs (a) and (b) in this section are removed. Paragraphs (a) through (d) are added and this section is now revised to read as indicated in 7 CFR 1b.1.

In this section, USDA removes reference to CEQ NEPA regulations at 40 CFR parts 1500 through 1508 and adds clarification of the purpose of the revised departmental NEPA regulations. This section specifies the mission areas, agencies, and staff offices (hereinafter USDA subcomponents or subcomponent) the part applies to.

7 CFR 1b.2—Policy:
Previous paragraphs (a), (b), (c), and (d) in this section are removed. Paragraphs (a) through (i) are added and this section is now revised to read as indicated in 7 CFR 1b.2. In this section, USDA outlines the Department's policy on complying with NEPA and specifies roles and responsibilities at the Department for managing NEPA compliance. The Under Secretary of Natural Resources and Environment continues to hold responsibility for ensuring overall Department compliance with NEPA. This section provides clarification on the issuance of agency-specific NEPA guidance for processes and practices that address agency-specific laws and program efficiency.

USDA adds requirements to this section to submit to Congress on an annual basis a report that identifies any environmental assessment and environmental impact statement that such lead agency did not complete by the deadline described in NEPA § 107(g), 42 U.S.C. 4336a(g), as amended in 2023, and provide an explanation for failure to meet deadlines. Specifies USDA roles and responsibilities for completing this report.

This section adds the process for how USDA subcomponents will determine when NEPA does not apply. Consideration of whether the action is a major Federal action is added, as the definition of major Federal action was added to NEPA, as amended by the Fiscal Responsibility Act of 2023. NEPA does not apply to “non-Federal actions”; therefore, under the terms of the statute, NEPA does not apply to actions with no or minimal Federal funding, or with no or minimal Federal involvement where a Federal agency cannot control the outcome of the proposal. A but-for causal relationship is insufficient to make an agency responsible for a particular action under NEPA. See
Dept. of Transp.
v.
Pub. Citizen,
541 U.S. 752, 767 (2004). By the same token, minimal Federal funding or involvement, which may in a causal sense be a but-for cause of an action, does not by itself convert that action into a Federal action within the meaning of the language of the statute.

This section adds the process for how USDA subcomponents will determine the level of NEPA that applies. Where some agency-specific NEPA regulations identified categories of actions generally requiring an environmental assessment or environmental impact statement, these sections have not been carried forward into 7 CFR 1b. NEPA does not require the identification of categories of actions other than those actions that are categorically excluded from documentation in an environmental assessment or environmental impact statement when a Federal agency has

determined the actions normally do not significantly affect the quality of the human environment within the meaning of NEPA § 102(2)(C), 42 U.S.C. 4332(2)(C), NEPA § 111(1), 42 U.S.C. 4336e(1)). Because the determination of no significance was made during the process of establishing the categorical exclusion, it is the consideration of whether an extraordinary circumstance exists that may preclude the use of the category (see 7 CFR 1b.3(f)). In determining whether a categorical exclusion applies to a proposed action, and therefore does not require preparation of an environmental assessment or environmental impact statement, an agency should evaluate the action for extraordinary circumstances that indicate a normally excluded action is likely to have reasonably foreseeable significant adverse effect. Determinations of whether to prepare an environmental assessment or environmental impact statement should be based on the anticipated degree of effect, in accordance with NEPA, not on the type of action. An environmental assessment shall be prepared when a Federal agency finds that a categorical exclusion does not apply to an action and the action does not have a reasonably foreseeable significant impact on the quality of the human environment, or the significance of such effect is unknown (NEPA § 106(b)(2) (42 U.S.C. 4336(b)(2); 7 CFR 1b.2(f)(iv)(A)) and 1b.5(a)). An environmental impact statement shall be issued when a Federal agency finds that a categorical exclusion does not apply and determines an action has a reasonably foreseeable significant impact on the quality of the human environment (NEPA § 106(b)(1) 42 U.S.C. 4336(b)(1); 7 CFR 1b.2(f)(iv)(B) and 1b.7(a)). This policy accurately reflects the statutory requirements of NEPA for determining the appropriate level of NEPA review (categorical exclusion, environmental assessment, or environmental impact statement).

This section also includes the new considerations for whether the effects of the proposed action (or alternatives) are significant (7 CFR 1b.2(f)(3)). When defining considerations for significance, USDA is using the concept of “affected environment” and a list of types of effects that include both short- and long-term effects, both beneficial and adverse effects, effects on public health and safety, economic effects, and effects on the quality of life of the American people.

With regards to the rationale the responsible official provides as to whether the degree of effect is significant, USDA is aligning considerations of significance with the statutory items that must be disclosed in an environmental impact statement, per NEPA § 102(2)(C)(i-v) (42 U.S.C. 4332), such as disclosure of reasonably foreseeable environmental impacts (as both short- and long-term effects), consequences of not implementing the action, irreversible or irretrievable commitment of Federal resources, and long-term productivity of the human environment. Instead of leaving the list of types of effects as disparate disclosures, USDA finds it logical to bring these together when it comes to considerations for significance. The terms “compares to” and “contributes to,” as included in the considerations for significance, provide the necessary precision or focus for conducting the analysis of the effects and considering how the potential impacts compare to the consequences, especially as it relates to effects on public health and safety, economics, and the quality of life of the American people, as well as identifying irreversible and irretrievable commitments and how these contribute to loss of long-term productivity for the human environment. Outlining the significance considerations in this manner allows those conducting effects analysis to better focus on the issues to be analyzed in detail for reasonably foreseeable significant impacts and allows the responsible official to better communicate their rationale for deciding how to proceed and why.

Specifies that as part of USDA subcomponent decision-making, NEPA should be integrated with other environmental analyses to demonstrate compliance with other laws. Also adds limitations on actions taken during the NEPA process.

7 CFR 1b.3—Categorical Exclusions and Findings of Applicability and No Extraordinary Circumstance:
Revises the title of this section from “Categorical Exclusions” to “Categorical Exclusions and Findings of Applicability and No Extraordinary Circumstance”. Department-level categorical exclusions previously included in paragraph (a) of this section are moved to § 1b.4, with revisions occurring to these as described in the discussion of changes for § 1b.4. Previous paragraphs (b) and (c) in this section are removed. Paragraphs (a) through (j) are added and this section is now revised to read as indicated in 7 CFR 1b.3.

Adds procedures for establishing, revising, adopting, removing, and applying categorical exclusions, as well as relying on other agency categorical exclusion determinations.

Adds clarification that USDA subcomponents may use any of the categorical exclusions listed at 7 CFR 1b.4, as well as use non-USDA categories that were adopted by any other USDA subcomponent. The USDA NEPA regulations have always included Department-wide CEs (now moved to § 1b.4). See 48 FR 11403 (March 18, 1983) and 60 FR 66481 (Dec. 22, 1995). Given the issuance of one set of departmental NEPA regulations to provide consistency for all USDA subcomponents implementing NEPA, the recission of agency-specific NEPA regulations, and the overlap of similar programs and activities across USDA mission areas and agencies, the Department finds it is appropriate for USDA subcomponents to apply the same categorical exclusions where it makes sense to do so for the actions proposed by the subcomponent.

Adds procedures for considering extraordinary circumstances, explanation of what constitutes an extraordinary circumstance, and clarification for how the subcomponent should proceed based on the determination of whether there are extraordinary circumstances. Clarifies an extraordinary circumstance means a unique situation exists in which actions that normally do not have significant impacts and are therefore categorically excluded from documentation in an environmental assessment or environmental impact statement, create uncertainty whether the degree of the impact is significant for the relevant resources considered (7 CFR 1b.11(a)(17)). Previously, some agencies had mandated lists of resources to consider for extraordinary circumstances while other agencies had no list. Adds a list of resources (based on the previously existing lists in some USDA agency-specific NEPA regulations) a responsible official may consider for extraordinary circumstances but does not mandate any of these must be considered. Considerations for extraordinary circumstances will be made at the responsible official's sole discretion and determined on a case-by-case basis, considering the nature of the proposed action and the potentially affected environment. Adds clarification on what constitutes the existence of an extraordinary circumstance and specifies that effects analysis completed to demonstrate compliance with other applicable laws also can be relied on to determine no extraordinary circumstance exists.

Adds the concept of a finding of applicability and no extraordinary circumstance (FANEC), which applies

to all categorical exclusions. For those categories requiring NEPA documentation, specifies that these determinations must be documented to demonstrate the appropriate use of the category, adequate consideration of extraordinary circumstances, and a determination that no extraordinary circumstance exists. Gives agencies flexibility on how to document these determinations so long as certain items are addressed. Clarifies documentation considerations for other applicable environmental laws and regulations and timing of action.

7 CFR 1b.4—Categorical Exclusion of USDA Subcomponents and Actions:
Revises the title of this section from “Exclusion of Agencies” to “Categorical Exclusion of USDA Subcomponents and Actions”. Previous paragraphs (a) and (b) are combined into one paragraph, now paragraph (a), which is revised to read as indicated in 7 CFR 1b.4. This section is revised to read as indicated in 7 CFR 1b.4. Paragraphs (b), (c), and (d) are added to this section.

Paragraphs (a) include the list of USDA subcomponents generally excluded from preparing an environmental assessment or environmental impact statement and adds general offices of the Department to this list.

The department-level categorical exclusions previously listed in § 1b.3 have been moved to paragraph (c) in this section. Examples of actions that fit the category were added to some of the department-wide categories, as further described under the agency-specific regulation changes discussed below. Some agencies had categorical exclusions that were duplicative of the department-wide categories or served as examples of those categories; therefore, these were removed as separate categories and added as examples of the department-wide categories where applicable.

Categorical exclusions previously codified in USDA agency-specific NEPA regulations are now consolidated under paragraphs (c) and (d) in this section. Any changes to the categorical exclusion language, as previously documented in agency-specific NEPA regulations, are discussed under the applicable agency-specific justification sections below. Other than these few modifications to categories, the majority of categories remain unchanged as originally promulgated and are simply moved from one section of USDA's regulations to another. Categories are organized by those that do or do not require NEPA documentation. New numbering was assigned to each categorical exclusion to make it easier to reference categories across the Department as any USDA subcomponent may utilize the categorical exclusions listed in 7 CFR 1b. Numbering includes acronyms at the end indicating the agency that initially established the category to help agency personnel more readily locate the categories they are likely to continue using frequently.

7 CFR 1b.5—Environmental Assessments:
This section is added to read as indicated in 7 CFR 1b.5.

Adds procedures for issuing environmental assessments. Reinforces the role of an environmental assessment (EA). Gives agencies flexibility on how to format the EA so long as certain items are addressed. Provides clarification on requirements for analysis of alternatives for an EA and reiterates the importance of deadline and page limit requirements from NEPA, as amended in 2023. Consideration of taking no action shall be included as part of the environmental impacts analysis to contrast the potential impacts of the proposed action, and any alternative(s) if developed, with the current condition and expected future condition if the proposed action or alternative were not implemented (7 CFR 1b.5(c)(2)(i)). This is necessary to inform aspects of the consideration of significance, as specified in 7 CFR 1b.2(f)(3).

States that subcomponents are to adhere to the statutory deadlines and publish an EA “in as substantially complete form as is possible.” Requires responsible officials to certify that they made a good faith effort to satisfy the requirements in the statute. Clarifies when seeking an extension to the deadline is appropriate. These new additions provide the Department's policy on how it will apply the new statutory deadlines in 42 U.S.C. 4336a(g) and page limits in 42 U.S.C. 4336a(e). This policy is based on the rationale that NEPA is governed by a “rule of reason.”
Dept. of Transp.
v.
Pub. Citizen,
541 U.S. 752 (2004). In establishing deadlines for the environmental assessment process in the 2023 revision of NEPA, Congress supplied the measure of that reason in NEPA § 107(g), 42 U.S.C. 4336a(g). “Time and resources are simply too limited for us to believe that Congress intended” consideration under NEPA to extend indefinitely.
Metro. Edison Co.
v.
People Against Nuclear Energy,
460 U.S. 766, 776 (1983) (citing
Vermont Yankee Nuclear Power Corp.
v.
NRDC,
435 U.S. 519, 551 (1978)). Clarifies when it may be appropriate to publish a notice of intent to prepare an EA. Provides direction on making the EA available to the public.

7 CFR 1b.6—Finding of No Significant Impact:
This section is added to read as indicated in 7 CFR 1b.6.

Adds procedures for issuing findings of no significant impact. Reinforces the role of a finding of no significant impact (FONSI). Gives agencies flexibility on how to format the FONSI so long as certain items are addressed. Provides direction on making the FONSI available to the public, providing notifications, and timing of the action.

7 CFR 1b.7—Environmental impact statements:
This section is added to read as indicated in 7 CFR 1b.7.

Adds procedures for issuing environmental impact statements.

Reinforces the role of an environmental impact statement (EIS). Provides direction on lead agency responsibilities for publication of the notice of intent, and scoping if conducted, including how to address delays, pauses, or withdrawals regarding intent to prepare an EIS.

Adds clarity on the process for requesting comments during preparation of an EIS to align with statutory requirements in NEPA (§ 102(2)(C), 42 U.S.C. 4332(2)(C); (NEPA § 107(c), 42 U.S.C. 4336a(2)(C)).

Specifies that a request for comment may be undertaken at any time that is reasonable in the process of preparing an EIS, as the publication of a draft EIS is no longer required. NEPA (the Act itself) does not require publication of a draft EIS, and filing a draft EIS with the Environmental Protection Agency and publishing the notice of availability in the
Federal Register
adds time and unnecessary process. Responsible officials still have the discretion to publish a draft EIS on a USDA website, along with any other pre-decisional materials that, in their judgment, may assist in fulfilling their responsibilities under NEPA and in facilitating the request for comments.

Reiterates that USDA subcomponents must ensure the process of obtaining and addressing comments and the publication of draft or pre-decisional materials must not cause the subcomponent to violate the Congressionally mandated deadline for completion of an EIS. Specifies that subcomponents shall consider comments and should address comments raising substantive issues or recommendations. Focuses the subcomponent on addressing comments by capturing the action the responsible official took in response to the issue raised or recommendation made. Recommends documentation of how comments were addressed should be included as an appendix in the EIS.

Requires electronic publication of substantive comments and provides an alternative course of action if USDA subcomponents do not have the capability or capacity to electronically publish comments.

Specifies that USDA subcomponents shall consider substantive comments but leaves discretion for addressing substantive comments in writing. There is no requirement in NEPA to address comments in writing; however, documentation of how comments were considered is highly encouraged to demonstrate the rationale for how the responsible official decides to proceed during the iterative development of the proposed action and action alternatives and the iterative analysis process. This documentation of how the responsible official proceeded and why is advantageous to demonstrating that decisions made during the iterative NEPA process are not arbitrary or capricious; however, experience implementing the previous CEQ NEPA regulation requirement for responding to comments has demonstrated this process led to burdensome and time-consuming efforts that routinely prevented USDA subcomponents from meeting the 2-year deadline for completing an EIS, which is now mandated in NEPA § 107(g)(1)(A), 42 U.S.C. 4336a(g)(1)(A). Additionally, the approach to “response to comments” that has been employed by some USDA subcomponents was not always the most effective in that it did not focus on demonstrating the action the responsible official took in response to the substantive issue raised and/or recommendation made. In some cases, the “response to comments” documentation generated levels of paperwork that exceeded the page count of the environmental document itself, defying one of the key principles of NEPA to generate “better decisions, not better documents”. For this reason, this section also clarifies that if documentation is completed to demonstrate how comments were considered and addressed, the documentation should focus on capturing the actions taken, as specified at 7 CFR 1b.7(f)(2), to facilitate a more efficient and effective approach to demonstrating how the responsible official responded to the substantive issue raised and/or recommendation made to improve the decision made on how to proceed (for example, issues to be analyzed in detail, alternatives to be considered or analyzed, or the alternative selected for implementation).

Gives subcomponents flexibility on how to format the EIS so long as certain items are addressed. Eliminates some aspects of EIS formatting previously required in the CEQ NEPA Implementing Regulations, such as the summary, table of contents, list of preparers, and index. These sections also add additional time and process that do not meaningfully inform decision-making and were more relevant when documents were primarily issued in hard copy instead of electronically.

Reiterates deadline and page limit requirements from NEPA, as amended in 2023. Specifies the requirement to file the EIS with the Environmental Protection Agency is still the primary means for making the completed EIS available to the public, in addition to publishing the EIS on a USDA website. States that agency officials are to adhere to the statutory deadlines and publish an EIS “in as substantially complete form as is possible” and requires responsible officials to certify that they made a good faith effort to satisfy the requirements in the statute. Clarifies when seeking an extension to the deadline is appropriate. These new additions provide the Department's policy on how it will apply the new statutory deadlines in NEPA § 107(g), 42 U.S.C. 4336a(g) and page limits in NEPA § 107(e), 42 U.S.C. 4336a(e). This policy is based on the rationale that NEPA is governed by a “rule of reason.”
Dept. of Transp.
v.
Pub. Citizen,
541 U.S. 752 (2004). In establishing deadlines for the environmental impact statement process in the 2023 revision of NEPA, Congress supplied the measure of that reason in NEPA § 107(g), 42 U.S.C. 4336a(g). “Time and resources are simply too limited for us to believe that Congress intended” consideration under NEPA to extend indefinitely.
Metro. Edison Co.
v.
People Against Nuclear Energy,
460 U.S. 766, 776 (1983) (citing
Vermont Yankee Nuclear Power Corp.
v.
NRDC,
435 U.S. 519, 551 (1978)).

7 CFR 1b.8—Records of decision:
This section is added to read as indicated in 7 CFR 1b.8.

Adds procedures for issuing records of decision. Gives subcomponents flexibility on how to format the record of decision (ROD) so long as certain items are addressed. Specifies requirements to make the ROD available to the public and provide notification to certain parties.

Clarifies timing of action. Notwithstanding other statutory or regulatory requirements, there is no longer a requirement to delay implementation of the action once the Environmental Protection Agency has published the notice of availability for the EIS, the ROD has been made available to the public, and necessary notifications are provided.

7 CFR 1b.9—Efficient and effective environmental reviews:
This section is added to read as indicated in 7 CFR 1b.9.

Adds best practices for efficient and effective environmental reviews.

Provides best practices for managing the proposal record. Includes recommendations for assembling and managing documentation developed during the environmental review process, responding to Freedom of Information Act requests, managing potential withholdings and privileges, and managing classified information.

Outlines best practices for reducing paperwork. For clarity, USDA has revised its usage of the terms “tiering” and “adopting,” which were described in the now rescinded CEQ NEPA Implementing Regulations. The term “rely” or “relying” is used (instead of adopting) as this is the term used in NEPA when referring to programmatic documents (NEPA § 108; 42 U.S.C. 4336b) and expands the original concept of “adopting” (now relying) to include not only whole environmental documents but also portions thereof, to include supporting analysis that may not be included in an environmental, finding, or decision document in whole. To avoid confusion with NEPA § 109, the term “adopting” is only used in reference to adopting another Federal agency's categorical exclusions (the subject of NEPA § 109) and is no longer used in the context of adopting analyses. Additional clarification is provided regarding reliance on programmatic documents, to align with language added to NEPA, as amended in 2023. The terms “incorporating” or “incorporating by reference” continue to apply and are included in the regulations.

Outlines best practices for reducing delay.

Emphasizes the importance of interdisciplinary preparation, methodology, scientific accuracy, and disclosing information availability.

Public involvement discussions are reduced to the most pertinent points that encourage USDA subcomponents to consider the most effective ways of engaging and informing the public, while allowing necessary discretion on the methods to use given the nature of the proposal and the public entities most likely to be interested or affected.

Emphasizes the need to eliminate duplication with State, Tribal, and local procedures, outlines process for identifying lead, joint, and cooperating agencies, promotes timely and unified Federal reviews, and provides process

for resolving disagreements concerning major Federal actions.

Adds additional clarification on how USDA agencies should proceed with unified documentation, as required by NEPA, where another Federal agency is the lead agency. Specifies the agency official at USDA who will determine when a disagreement needs to be elevated to CEQ when there are interagency disagreements concerning the designation of a lead or joint agency or disagreements over proposed major Federal actions that might cause unsatisfactory environmental effects.

Outlines recommended approaches for preparing environmental assessments and environmental impact statements for programmatic actions and provides direction for relying on and reevaluating programmatic (and non-programmatic) documents.

Outlines approaches for evaluating proposals for rules, regulations, and legislation.

Specifies need to apply unique identification numbers to environmental assessments and environmental impact statements.

Adds direction on how to proceed for emergencies, with a distinction provided between “immediate actions” and “urgent but not immediate actions”. Some emergency authorization or emergency procedure language previously included in agency-specific NEPA regulations has been moved to this section in 7 CFR 1b, with much of the language being revised, as described in the agency-specific regulation changes included below. Where language and procedures were essentially the same across agencies, these procedures are now discussed only once. Where procedures differed necessarily across agencies, these different procedures are included. Specifics as to some wording changes that were made for agency-specific procedures are discussed under the applicable agency-specific regulation, listed below. Adds a general emergency action provision for agencies that did not have such provisions in their regulations to coordinate on issuing alternative arrangements for complying with NEPA when completing a categorical exclusion or environmental assessment when significant effects are not anticipated.

7 CFR 1b.10—Documents prepared by applicant or third party:
This section is added to read as indicated in 7 CFR 1b.10.

Adds procedures for environmental assessments and environmental impact statements prepared by an applicant or third party. Specifies responsibilities of USDA subcomponents when documentation is being prepared by an applicant or third party. Recognizes that NEPA § 107(f), 42 U.S.C. 4336a(f), allows an applicant or other third party (
e.g.,
contractor) to complete an environmental assessment or environmental impact statement in whole or in part, under supervision of a Federal agency. For purposes of the USDA NEPA regulations, applicant or other third-party preparation is expanded to include, in whole or in part, documentation for a finding of applicability and no extraordinary circumstance for categorical exclusions requiring NEPA documentation. This is to account for the various ways USDA subcomponents currently work with applicants and third parties to complete documentation associated with a proposal, which includes more than just the preparation of environmental assessments and environmental impact statements. Applicants often complete documentation for actions that fit categorical exclusions requiring NEPA documentation.

7 CFR 1b.11—Definitions and Acronyms:
This section is added to read as indicated in 7 CFR 1b.11.

Adds cross-references to key definitions from NEPA and carries over some definitions from the 2020 CEQ NEPA Implementation Regulations, with modifications made for some definitions such as: mitigation (or mitigation measure) and significance.

“Mitigation” (7 CFR 1b.11(a)(29)) was edited to clarify mitigations are determined by the responsible official and are a reactive response to the effects analysis and are documented in the finding of no significant impact or record of decision. See further discussion below on adding the term “design criteria” to the definition section.

“Significance” (7 CFR 1b.11(a)(50)) is defined as explained under the changes made to section 7 CFR 1b.2.

Adds definitions for new terms introduced in the regulations, such as: design criteria (or design elements or design features), emergency, environmental review, extraordinary circumstances, finding of applicability and no extraordinary circumstance, issue, level of NEPA, NEPA process, notice of availability, proposal record, proposed action, purpose and need, scale, scope, senior agency official, and substantive.

The definition for “design criteria” (7 CFR 1b.11(a)(11)) is added to demonstrate that when these criteria are added to proposed actions or alternatives to achieve similar outcomes of “mitigations” (7 CFR 1b.11(a)(29)), they are added in response to an issue and therefore once the issue has been addressed in this manner it is not an issue that needs to be analyzed in detail. Design criteria are proactive responses to issues identified early in the interdisciplinary process of developing the proposed action and/or action alternatives or when conducting preliminary effects analysis, whereas adding “mitigations” (or “mitigation measures”) is a reactive response by the responsible official to the effects analysis. The definition clarifies that these two terms achieve similar outcomes (for example, avoid or minimize adverse effects), yet apply in distinctly different ways, and also facilitate analytic analysis.

The definition of “emergency” (7 CFR 1b.11(a)(13)) is added as this term was used in some of the USDA agency-specific NEPA regulations for emergency action provisions and the concept is carried forward into the USDA NEPA regulations for “immediate actions” and “urgent but not immediate actions” (7 CFR 1b.9(v) and (w)).

The definition of “extraordinary circumstances” (7 CFR 1b.11(a)(17)) is a concept carried forward from the now rescinded CEQ NEPA regulations and is defined in the USDA NEPA regulations. Some USDA agency-specific NEPA regulations included a definition of extraordinary circumstances, while others did not. While these former definitions served to inform the new definition, none of the previous definitions were used in their entirety. The definition included in the USDA NEPA regulations clarifies that an extraordinary circumstance is a unique situation that exists in which actions that normally do not have significant impacts—and are therefore categorically excluded from documentation in an environmental assessment or environmental impact statement—create uncertainty whether the degree of the effect is significant. The CEQ NEPA regulations and some USDA agency-specific NEPA regulations defined or discussed extraordinary circumstances in a way that created confusion as to when an extraordinary circumstance existed. Some interpreted an extraordinary circumstance to be present when a resource considered for extraordinary circumstances, such as federally listed threatened or endangered species or wetlands, was present. It is not the mere presence of a resource that means an extraordinary circumstance exists, but rather the cause-effect relationship between the proposed actions and the resource considered. An extraordinary circumstance exists only when there is reasonable uncertainty about whether

the degree of the impact is significant for the resource being considered.

The definition of “finding of applicability and no extraordinary circumstance” (7 CFR 1b.11(a)(19)) is added, as the USDA NEPA regulations clarify that the use of a categorical exclusion is dependent on determinations that a category (or categories) applies to the proposed actions and no extraordinary circumstance exists.

The definition of “issue” (7 CFR 1b.11(a)(23)) is added to promote analytic analysis that is focused on cause-effect relationships between the actions proposed (cause) and the reasonably foreseeable impacts (effect) on resources found in the affected environment. The purpose of considering issues is to identify opportunities to modify the proposed action, develop an action alternative, or supplement, improve, or modify the analysis to better understand the effects.

The definitions of “level of NEPA” and “NEPA process” (7 CFR 1b.11(a)(27) and (30)) are added as these terms are used in the regulations in several instances to refer to the different levels of NEPA or process to be completed, those being categorical exclusion, environmental assessment, or environmental impact statement. This also helps clarify that using a categorical exclusion is a NEPA process, as some entities in the past have erroneously alleged that an agency's use of a categorical exclusion is “circumventing NEPA”.

The definition of “proposal record” (or “project record”) (7 CFR 1b.11(a)(38)) is added to standardize this term and concept for USDA as it is a key piece of the NEPA and integrated environmental review processes that can be overlooked. A well-organized and complete proposal record also can facilitate paperwork reduction.

The definition of “proposed action” (7 CFR 1b.11(a)(39)) is added to differentiate this from a proposal. “Proposal” is defined by NEPA as “a proposed action at a stage when an agency has a goal, is actively preparing to make a decision on one or more alternative means of accomplishing that goal, and can meaningfully evaluate its effects”. The definition of proposed action takes this a step further to indicate this includes “design criteria” (where these apply) and that this is the version submitted for final interdisciplinary review and effects analysis. Defining a proposed action also can help responsible officials better determine when timelines start for environmental assessments and environmental impact statements to track and meet the deadlines now established in NEPA.

The definition of “purpose and need” (7 CFR 1b.11(a)(41)) is added as this is a term used in NEPA (the Act itself) but not defined. The definition clarifies the purpose and need explains the “why here, why now” rationale for proposing an action, and that this also can incorporate the goals of an applicant (when applicable) and the subcomponent's statutory duty to review an application for authorization.

The definitions of “scale” and “scope” (7 CFR 1b.11(a)(47) and (48)) are added as these terms are used in the USDA NEPA regulations when referring to the scale and scope of actions proposed and issues considered for analysis.

The definition of “substantive” (7 CFR 1b.11(a)(53)) is added to promote analytic analysis that focuses on information that meaningfully informs the consideration of reasonably foreseeable impacts on the human environment and the resulting significance determination or decisions on how to proceed. Not all issues need the same level of attention and analysis. Rather, it is substantive issues that should be the focus when conducting effects analysis and making iterative and final decisions on how to design, analyze, and implement an action.

Adds a list of acronyms (7 CFR 1b.11(b)) that may appear throughout 7 CFR 1b or that may be used when applying 7 CFR 1b during the applicable NEPA process.

7 CFR 1b.12—Severability:
This section is added to read as indicated in 7 CFR 1b.12.

Adds a severability clause that clarifies that the sections of the USDA NEPA Implementing Regulations are separate and severable from one another and describes how other sections or portions may remain valid if another section or portion is stayed or determined to be invalid.

3. Agricultural Research Service Procedures for Implementing NEPA (Previously at 7 CFR 520)

The Agriculture Research Service (ARS) NEPA regulations are rescinded in full except for the following sections that have been consolidated in the 7 CFR 1b regulations: 7 CFR 520.5(b)(2)(i) and (iii).

—7 CFR 520.5(b)(2)(i) and (iii) were moved to examples of activities under one of the categorical exclusions previously codified at 7 CFR 1b.3 (department-wide CEs previously under section 1b.3 are now moved to section 1b.4). (now 7 CFR 1b.4(c)(3)(iv) and (v))

4. Animal and Plant Health Inspection Service NEPA Implementing Procedures (Previously at 7 CFR 372)

The Animal and Plant Health Inspection Service's (APHIS) NEPA Implementing Procedures at 7 CFR part 372 are rescinded in full except for the following sections that have been moved to 7 CFR part 1b: 7 CFR 372.5(c)(1) through (3) and 7 CFR 372.5(c)(5) (any previously reserved sections are removed as new numbering is applied under 7 CFR 1b); and 7 CFR 372.10(b). Previously codified APHIS categorical exclusions are now found at 7 CFR 1b.4(c)(08) through (11).

Minor changes were made to former 7 CFR 372.5(c)(1) through (3) and 7 CFR 372.5(c)(5) as follows when they were moved over to 7 CFR 1b:

—372.5(c)(1)(i): some terms were removed from this paragraph and added them to examples of activities under department-wide CEs previously codified at 7 CFR 1b.3 (department-wide CEs previously under § 1b.3 are now moved to § 1b.4). The example now reads as: “Identifications, inspections, surveys, sampling, testing, and monitoring that does not cause physical alteration of the environment.” (now 7 CFR 1b.4(c)(3)(i))

—372.5(c)(1)(ii): revised “Examples of routine measures include” to now read as “Examples of routine measures include but are not limited to”. (now 7 CFR 1b.4(c)(8)(ii))

—372.5(c)(2)(i)(B) and (D) were moved to examples of activities under one of the categorical exclusions previously codified at 7 CFR 1b.3 (department-wide CEs previously under § 1b.3 are now moved to § 1b.4). (now 7 CFR 1b.4(c)(3)(ii) and (iii))

—372.5(c)(2)(i) and 372.5(c)(5): revised “Examples are” to now read as “Examples include but are not limited to”. (now 7 CFR 1b.4(c)(9) and (11))

—372.5(c)(3)(ii) and (iii): modified by removing erroneous “or” in (ii) and removing erroneous “and” in (iii) and replacing it with “or”. (now 7 CFR 1b.4(c)(10))

Former section 372.10(b) had more extensive changes when it was moved to 7 CFR 1b.9(w)(1)(i). It was revised as follows:

—Eliminates language regarding environmental assessments as this discussion is now covered for all USDA agencies; uses more generalized language about who can approve alternative arrangements for emergency actions not anticipated to have a reasonably foreseeable significant effect given the ongoing

organizational restructuring at USDA that could affect office names or staff position titles; and, eliminates the requirement to document and report to CEQ the alternative arrangements approved at the agency level. (USDA agencies will continue to coordinate with CEQ on alternative arrangements for those activities anticipated to have reasonably foreseeable significant effects.)

5. Farm Service Agency General Implementing Regulations for NEPA (Previously at 7 CFR 799)

The Farm Service Agency (FSA) NEPA regulations are rescinded in full except for the following sections that have been moved to the 7 CFR 1b regulations: 7 CFR 799.12(b), 7 CFR 799.31(b)(1)(2) and (4) through (6), 7 CFR 799.32(d)(1)(2) and (3), 7 CFR 799.32(e)(1)(2) and (3). Previously codified FSA categorical exclusions are now found at 7 CFR 1b.4(c)(12) through (16) and (30) and (d)(1) and (2).

7 CFR 799.12(b) was moved to 7 CFR 1b.9(v) and (w) but is incorporated into the overall Department guidance for Emergencies, with one paragraph 1b.9(w)(1)(ii) clarifying how the FSA should coordinate alternative arrangements for urgent actions not anticipated to have reasonably foreseeable significant effects.

Categorical Exclusions (CEs) moved to 7 CFR 1b.4(c) (CEs not requiring documentation under NEPA) because they are historically low impact actions:

—7 CFR part 799.31(b)(1) Loan Actions (combined with other “Loan Actions” categories under one category at 7 CFR 1b.4(c)(30))

—7 CFR part 799.31(b)(2) Repair, improvement, or minor modification actions (now 7 CFR 1b.4(c)(13))

—7 CFR part 799.31(b)(3) Administrative actions are deleted as a category and added as examples under one of the categorical exclusions previously codified at 7 CFR 1b.3. (now 7 CFR 1b.4(c)(1)(i) through (iii))

—7 CFR part 799.31(b)(4) Planting actions. (now 7 CFR 1b.4(c)(14))

—7 CFR part 799.31(b)(5) Management actions. (now 7 CFR 1b.4(c)(15))

—7 CFR part 799.31(b)(6) Other FSA actions (now labeled “Miscellaneous FSA Actions”). 799.31(b)(6)(vi) is revised to read as: Safety net programs without ground disturbance. “Without ground disturbance” was added as a clarifier, as the sentence providing this clarification is not moved to 7 CFR 1b. 7CFR 799.31(b)(6)(x) is removed because the adoption provision is no longer needed here. (now 7 CFR 1b.4(c)(16))

—7 CFR 799.32(d)(1) Loan Actions (combined with other “Loan Actions” categories under one category at 7 CFR 1b.4(c)(30))

—7 CFR 799.32(d)(2) Minor management, construction, or repair actions (now 7 CFR 1b.4(c)(12))

—7 CFR 799.32(d)(3) Other FSA actions (combined in list with categories labeled “Miscellaneous FSA Actions”) (now 7 CFR 1b.4(c)(16))

—799.32(d)(3)(iv): Removed as it is duplicative to another category already included in the now combined “Miscellaneous FSA Actions” list and the phrase “(this proposed action, in particular, has the potential to cause effects to historic properties and therefore requires analysis under section 106 of NHPA (54 U.S.C. 306108), as well as under the ESA and wetland protection requirements)” is not necessary as the determination for when compliance with NHPA (National Historic Preservation Act) and ESA (Endangered Species Act) is needed is appropriately done on a case-by-case or programmatic basis and is not appropriate to include in NEPA regulations.

—7 CFR 799.32(e)(1) Loan Actions (combined with other “Loan Actions” categories under one category at 7 CFR 1b.4(c)(30))

CEs moved to 7 CFR 1b (CEs requiring documentation under NEPA):

—7 CFR 799.32(e)(2) Construction or ground disturbance actions (now 7 CFR 1b.4(d)(1))

—7 CFR 799.32(e)(3) Management and planting type actions (now 7 CFR 1b.4(d)(2))

FSA is applying the definition of major Federal action, as established in the Fiscal Responsibility Act of 2023 (Pub. L. 118-5), which also amended NEPA. The agency has determined that several types of loan actions fall within one or more of the exclusions in the definition of major Federal actions and will be treating them as such; however, it's possible not all types of loans fall within the exclusions. For this reason, FSA is retaining the existing categories titled “Loan Actions”. FSA will continue to make case-by-case or programmatic determinations as to whether certain loans and potentially other programs or actions meet the statutory definition of major Federal action. Justifications for these and any other programmatic determinations will be made in agency-issued guidance.

6. National Institute of Food and Agriculture Implementation of NEPA Regulations (Previously at 7 CFR 3407)

The National Institute of Food and Agriculture (NIFA) regulations are rescinded in full except for the following sections that have been moved to the 7 CFR 1b regulations: 7 CFR 3407.6(a)(2)(i)(A) and (C).

—7 CFR 3407.6(a)(2)(i)(A) and (C) were moved to examples of activities under one of the categorical exclusions previously codified at 7 CFR 1b.3 (department-wide CEs previously under § 1b.3 are now moved to § 1b.4). (now 7 CFR 1b.4(c)(3)(iv) and (v))

7. Natural Resources Conservation Service Compliance With NEPA Regulations (Previously at 7 CFR 650)

The Natural Resources Conservation Service (NRCS) regulations are rescinded in full except for the following sections that have been consolidated in the 7 CFR 1b regulations: 7 CFR 650.6(a) and (d)(1) through (21). Previously codified NRCS categorical exclusions are now found at 7 CFR 1b.4(d)(3) through (23).

Minor changes were made to the categorical exclusion sections as follows when they were moved over to 7 CFR 1b:

—7 CFR 650.6(a): This section was moved to examples of activities under one of the categorical exclusions previously codified at 7 CFR 1b.3. (now 7 CFR 1b.4(c)(3)(vi) through (x))

—7 CFR 650.6(d)(14): Revised as follows. In the phrase “Work will be confined to the existing footprint of the dam . . .”, “existing” is replaced with “construction” to now read as “Work will be confined to the construction footprint of the dam”. (now 7 CFR 1b.4(d)(16))

—7 CFR 650.6(d)(15): Revised as follows. In the phrase “Work will be confined to the dam or abutment areas . . .”, the language “construction footprint of the” was inserted, to now read as “Work will be confined to the construction footprint of the dam or abutment areas . . .” (now 7 CFR 1b.4(d)(17))

—7 CFR 650.6(d)(16): Revised as follows. In the phrase “Repairing embankment slope failures on structures . . .”, the language “or reshaping the embankment” was inserted to now read as “Repairing embankment slope failures on structures or reshaping the embankment. . . .” (now 7 CFR 1b.4(d)(18))

—7 CFR 650.6(d)(17): Revised as follows. In the phrase “Work will be

confined to the existing dam and abutment areas . . .”, “existing” is replaced with “construction footprint of” to now read as “Work will be confined to the construction footprint of the dam and abutment areas. . . .” (now 7 CFR 1b.4(d)(19))

These CEs focus on routine actions for the repair or updating of existing structures constructed under the Watershed Protection and Flood Prevention Act, Public Law 83-566, or the Flood Control Act, Public Law 78-534. The purpose of rehabilitation projects is to comply with current State safety standards and Federal performance standards, as well as the protection of environmental values associated with the project's structures.

Upon review of the substantiation records associated with the development of these CEs and the NRCS staff's professional knowledge and experience, NRCS determined it needed additional clarity to better define the appropriate scope of these CEs. The term “existing,” in reference to the dam structure, leads to an overly restrictive interpretation that does not meet standard maintenance procedures associated with rehabilitation actions, thus unintentionally restricting the scope and application of the CEs. NRCS completed an analysis of 51 recent site-specific dam rehabilitation EAs, all resulting in a finding of no significant impact. NRCS concluded that 34 of these projects could have been categorically excluded because the proposed action was limited to the dam construction footprint, which was previously disturbed during construction. The remaining 17 project-specific EAs did not meet the CE criteria because the rehabilitation construction footprint exceeded the original dam construction footprint or involved other actions outside the scope of the CE. These CEs are limited to developed areas, so this modification is not expected to create any new development. Therefore, NRCS determined that when applying these CEs, clarifying the parameters to account for the previously disturbed areas surrounding the finished dam, abutment, or dam slope does not typically result in a significant impact on the human environment and, therefore, justifies changes to the CEs.

The minor modifications reflect an effort by NRCS to provide further clarity and provide transparency regarding the activities, including the associated workspace, covered by the CEs. For actions under these categorical exclusions, NRCS personnel will continue to evaluate proposed actions for potential impacts and extraordinary circumstances, including responsibility of the agency to comply with the National Historic Preservation Act and the Endangered Species Act.

Additionally, NRCS considered whether 7 CFR 650.6(c)(3) needed to be retained in the 7 CFR 1b as this section outlined conditions that must be met before using the categorical exclusions listed at § 650.6(d). Section 650.6(c)(3)(i) through (iii) do not warrant separate inclusion on the list because each of these is already addressed by the NRCS conservation practice standards and planning policies, which set forth minimum criteria and technical requirements for conservation projects nationwide. These standards are regularly updated through a rigorous national review process and require that all conservation practices be designed to mitigate soil erosion, sedimentation, and downstream flooding. Likewise, the standards mandate that disturbed areas be vegetated with adapted, non-invasive, and non-noxious species to ensure ecological compatibility and long-term site stability. Furthermore, NRCS standards and technical guides are built upon current industry standard engineering principles of natural stream dynamics and processes and are subject to ongoing review to reflect advances in resource management and restoration science.

Additionally, § 650.6(c)(3)(iv), “incorporate the applicable NRCS conservation practice standards as found in the Field Office Technical Guide,” is already built into NRCS planning procedures. These procedures specifically require an evaluation of alternative methods to meet conservation objectives and minimize negative impacts on the environment.

Lastly, § 650.6(c)(3)(v) (“Not require substantial dredging, excavation, or placement of fill”); and (vi) (“Not involve a significant risk of exposure to toxic or hazardous substances”) are already evaluated as part of the agency's Determination of Significance or Extraordinary Circumstances, which must be considered by the agency's Responsible Federal Official as part of the environmental review analysis.

NRCS has found that including these conditions as sideboards to applying the categorical exclusions is redundant and could create unnecessary regulatory overlap, as the NRCS Field Office Technical Guide and national standards already require adherence to these criteria as a prerequisite for all conservation planning, design, and implementation efforts. Recent coordination with another Federal agency adopting some of NRCS' categorical exclusions reached the same conclusion as other Federal agencies have similar agency-specific conservation or best management practices as those outlined by NRCS.

8. Rural Development Environmental Policies and Procedures (Previously at 7 CFR 1970)

The Rural Development regulations are rescinded in full except for the following sections that have been moved to the 7 CFR 1b regulations: 7 CFR 1970.11(b); 7 CFR 1970.18(b); 1970.53(a)(7), (c)(1) through (c)(7) and (c)(9), (d)(2) through (11), (e), (f), and (g); 1970.54(a) through (c). Previously codified Rural Development categorical exclusions are now found at 7 CFR 1b.4(c)(17) and (18) and (d)(24) and (25).

Through this interim final rule, Rural Development is rescinding the process by which it determined which actions require environmental review as previously codified at 7 CFR 1970.8(c) and implementing the definition of major Federal action as established in the Fiscal Responsibility Act of 2023 (Pub. L. 118-5), which also amended NEPA. The agency has determined that several types of actions fall within one or more of the exclusions in the definition of major Federal action, and will be treating them as such. Rural Development will make case-by-case or programmatic determinations of which programs or actions do not meet the statutory definition of major Federal action. Justifications of programmatic determinations will be made in agency-issued guidance.

Due to these changes, Rural Development is removing several CEs for actions that the agency has determined do not meet the definition of major Federal action under NEPA and, therefore, do not require NEPA analysis. As such, actions previously codified at 7 CFR 1970.53(a)(1) through (a)(6), (b)(1) through (b)(3), (c)(8), (c)(9), (d)(1), and (f) through (h); and 1970.55 are being removed.

7 CFR 1970.11(b) is moved to 7 CFR 1b.2(h)(3) verbatim except for the addition of the following phrase at the beginning of the section to indicate it applies to the Rural Development mission area: “When agencies under the Rural Development mission area are obligating funds”.

7 CFR 1970.18(b) is revised and moved to 7 CFR 1b.9(w)(1)(iii) to align with the overarching Department guidance for Emergencies. Adds clarification for how to coordinate to get alternative arrangements approved for emergency actions not anticipated to have a reasonably foreseeable significant effect.

7 CFR 1970.53(d)(4) is revised to change the phrase “Includes pole replacements but does not include overhead-to-underground conversions” to now read as “Includes pole replacements and overhead-to-underground conversions”. (Now 7 CFR 1b.4(c)(18)(x).) The equipment used in overhead-to-underground is the same equipment used to install telecommunication fiber, which is covered by other agency categorical exclusions (for example, 7 CFR 1970.53(d)(1) and (2) for both aerial and buried fiber cable within existing rights-of-way). The action of installing underground electric is normally does not have a significant effect on the environment when performed in an existing previously disturbed utility right-of-way. Pole replacements and overhead-to-underground conversions are not significant construction activities with the potential to cause significant effects on the environment when constructed within a previously disturbed right-of-way and do not always require environmental documentation, provided that the activities are reviewed to rule out extraordinary circumstances. This revises the previous codification at 7 CFR 1970.53(d)(4), which required an environmental report. Since 2016, the agency has reviewed numerous projects of this type (overhead-to-underground conversion) as a categorical exclusion without significant impact on the environment and therefore has determined they were improperly excluded in previous rulemaking [March 2, 2016, 81 FR 11032].

7 CFR 1970.54(b)(2)(i) is revised to change the phrase “Within one mile of currently served areas irrespective of the percent of increase in new capacity” to now read as “Within 20 miles of currently served areas irrespective of the percent of increase in new capacity”. (Now 7 CFR 1b.4(d)(24)(ii)(B).) The change from one (1) mile to twenty (20) miles is based on the review and analysis of environmental assessments issued by the agency, as well as other Federal agency categorical exclusions. In addition, the removal of small-scale corridor development that increased capacity by more than 30 percent of the existing user population as a threshold requiring an environmental assessment, as previously codified at 7 CFR 1970.54(b)(2)(ii), is based on the review and analysis of environmental assessments issued by the agency, which documents that making the modifications will not normally result in significant effects on the environment. Rural Development has the administrative record of applying 7 CFR1970.53(b)(2) since the promulgation of 7 CFR 1970 and has found no instances where the review was elevated to an environmental assessment due to extraordinary circumstances. Further, the agency has reviewed records for over 100 environmental assessments completed for projects that proposed expansion of the distribution or collection system past one mile of the currently served areas or otherwise increased the capacity by more than 30 percent of the existing user population and found all of these to have concluded in a finding of no significant impact on the environment. As none of these projects has documented a significant impact on the environment, the agency is removing the population threshold.

7 CFR 1970.54(a)(4) is revised to remove the last sentence in the following: “Infrastructure to support utility systems such as water or wastewater facilities; headquarters, maintenance, equipment storage, or microwave facilities; and energy management systems. This does not include proposals that either create a new or relocate an existing discharge to or a withdrawal from surface or ground waters, or cause substantial increase in a withdrawal or discharge at an existing site.” (Now 7 CFR 1b.4(d)(24)(i)(D).) The agency has reviewed more than 300 environmental assessments for the activities described in the last sentence and found all of these to have concluded in a finding of no significant impact on the environment. Therefore, the agency has determined these activities do not normally result in a reasonably foreseeable significant effect and it is now appropriate for these actions to occur as part of using this category.

9. U.S. Forest Service NEPA Compliance Regulations (Previously at 36 CFR 220)

The U.S. Forest Service regulations are rescinded in full except for the following sections that are moved to the 7 CFR 1b regulations: 36 CFR 220.6(d)(1) through (12) and (e)(1) through (25) (any previously reserved sections are removed); and 220.4(b)(2). Previously codified Forest Service categorical exclusions are now found at 7 CFR 1b.4(c)(19) through (29) and (d)(26) through (47).

Minor changes were made to the categorical exclusion sections, 36 CFR 220.6(d) and (e), as follows when they were moved over to 7 CFR 1b.4(c) and (d): Generalized the requirement, or lack thereof, for documentation for categorical exclusions. The categorical exclusions requiring documentation did not change. Where the discussion of documentation used Forest Service-specific terminology (for example, decision memo), this terminology has been removed, and the 7 CFR 1b regulations just state that documentation is required. This aligns with the 7 CFR 1b regulations, which establish consistent categorical exclusion documentation requirements for all USDA agencies.

36 CFR 220.6(e)(9) In the phrase, “Implementation or modification of minor management practices to improve allotment condition or animal distribution when an allotment management plan is not yet in place”, the following language was removed: “when an allotment management plan is not yet in place”. (Now 7 CFR 1b.4(d)(33).) An allotment management plan (AMP) is a document that specifies how the components of the program action will be implemented to reach a given set of objectives. An AMP is prepared in consultation with the permittee(s) associated with the allotment, and it prescribes the manner and extent to which livestock operations will be conducted; describes the type, location, and construction specifications for rangeland improvements; and contains such other provisions relating to livestock grazing on the associated allotment (see 36 CFR 222.1(b)). AMPs are created after a unit's land management plan and a site-specific grazing decision, both of which undergo their own NEPA analysis. An AMP is the outcome of the grazing decision process. The presence or absence of an AMP does not change the on-the-ground effects of a rangeland improvement because AMPs do not override land management plans or grazing decisions. As such, the revision of language in the categorical exclusion is a minor change and technical in nature and does not modify the way rangeland improvements are designed or implemented, nor what is authorized in the land management plan or the grazing decision. Currently, most Forest Service grazing allotments have AMPs in place, making this CE unavailable to them. The proposed minor wording change will allow Federal agencies to efficiently maintain or improve rangeland conditions and animal distribution by eliminating a restriction based on paperwork requirements rather than indicators of whether the action may have significant effects, as was considered when initially establishing the category.

36 CFR 220.6(e)(16) was revised to clarify that the land management plan approval document required by 36 CFR part 219 satisfies the documentation

requirement for this categorical exclusion. (Now 7 CFR 1b.4(d)(38).) In the phrase, “. . . are outside the scope of this category and shall be considered separately under Forest Service NEPA procedures,” “Forest Service” was replaced with “USDA” to now read as, “. . . are outside the scope of this category and shall be considered separately under USDA NEPA procedures.” An update to recordkeeping procedures does not change the significance determination made when establishing this CE.

36 CFR 220.4(b)(2) was revised as follows when moved to 7 CFR 1b.9(w)(1)(iv): eliminates language regarding categorical exclusions, environmental assessments, and findings of no significant impact as this discussion is now covered for all USDA agencies; and, uses more generalized language about the process for approving alternative arrangements for emergency actions not anticipated to have reasonably foreseeable significant effects given the ongoing organizational restructuring at USDA that could affect office names and staff position titles.

The Forest Service recognizes that the rescission of the 36 CFR 220 regulations has implications on the 36 CFR 218 regulation for the project-level pre-decisional administrative review process. Until the 36 CFR 218 regulation is revised to align with 7 CFR 1b, the Forest Service will continue to apply 36 CFR 218 as currently required. While the 7 CFR 1b regulations do not include a “decision notice” for environmental assessments, the revised regulations do clarify at 7 CFR 1b.6(c) that, “If a statute or regulation explicitly requires a decision document to approve actions analyzed in an environmental assessment, the finding of no significant impact can be retitled to indicate its function as a decision document”. This is to account for continued application of the 36 CFR 218 regulations for environmental assessments that required issuance of a decision notice under the 36 CFR 220 regulations (§ 220.7(c)).

C. Transition Period for USDA NEPA Regulations

The Department intends to provide USDA subcomponents with discretion to determine which NEPA procedures to apply to individual proposals, given the widely varying circumstances and stages of pending NEPA analyses. To ensure an orderly transition without undue impact on the USDA mission, USDA subcomponents have discretion to continue using the versions of USDA and agency-specific NEPA regulations in place before publication of this interim final rule, as well as the 2020 version of the CEQ NEPA regulations, where it makes sense for proposals that are at a certain stage in the applicable NEPA process (categorical exclusion, environmental assessment, or environmental impact statement). To the extent any of these prior regulations conflict with the statute, as amended by the Fiscal Responsibility Act in 2023 or the U.S. Supreme Court decision in
Seven County Infrastructure Coalition
v.
Eagle County, Colorado,
145 S. Ct. 1497 (2025), the statute governs. USDA subcomponents also have the discretion to begin applying the USDA NEPA regulations, as revised, effective immediately upon publication of this interim final rule where it makes sense to do so for new proposals and applications, or for existing proposals or applications that are in the early stages of the applicable NEPA process and can easily transition to using the revised USDA NEPA regulations. Upon the effective date of a final rule, USDA subcomponents will be expected to apply the revised 7 CFR 1b when initiating proposals and accepting new applications. The final rule will contain additional transition language.

III. Request for Comments

A. Notice-and-Comment Rulemaking Is Not Required

USDA is revising its prior procedures and practices for implementing NEPA, a “purely procedural statute” which “simply prescribes the necessary process for an agency's environmental review of a project”—a review that is, even in its most rigorous form, “only one input into an agency's decision and does not itself require any particular substantive outcome.”
Seven County,
145 S. Ct., at 1510-11 (internal quotation marks omitted). “NEPA imposes no substantive constraints on the agency's ultimate decision to build, fund, or approve a proposed project,” and “is relevant only to the question of whether an agency's final decision—
i.e.,
that decision to authorize, fund, or otherwise carry out a particular proposed project or activity—“was reasonably explained.”
Id.
at 1511. Procedures for implementing a purely procedural statute must be, by their nature, procedural rules. And even if that were not universally true, the new rules adopted in this notice are purely procedural.

Thus, unsurprisingly, both the prior and revised versions of USDA's NEPA regulations do not dictate what outcomes such consideration must produce, nor do they impose binding legal obligations on private citizens. Rather, they prescribe how USDA will conduct NEPA reviews: detailing the structure of environmental impact statements, specifying submission requirements, and directing the timing of public comment periods. These are procedural provisions, not substantive environmental ones. Thus, because procedural rules do not require notice and comment, they do not require notice and comment to be revised.
See
5 U.S.C. 553(b)(A).

Moreover, even if (and to the extent that) USDA's regulations are not procedural rules, they may be characterized as interpretive rules or general statements of policy under 5 U.S.C. 553(b)(A). An interpretive rule provides an interpretation of a statute, rather than make discretionary policy choices that establish enforceable rights or obligations for regulated parties under delegated congressional authority. The definitions section at 7 CFR 1b.11, for instance, may be classified as such. General statements of policy, meanwhile, provide notice of an agency's intentions as to how it will enforce statutory requirements, again without creating enforceable rights or obligations for regulated parties under delegated congressional authority. 7 CFR 1b.1 and 1b.2, for instance, may be classified as general statements of policy. Both of these types of agency actions are expressly exempted from notice and comment by statute. 5 U.S.C. 553(b)(A).

Accordingly, although USDA is voluntarily providing notice and an opportunity to comment on this interim final rule, it has determined that notice-and-comment procedures prior to issuance are not required. The fact that USDA previously undertook notice-and-comment rulemaking in promulgating these regulations is immaterial. As the Supreme Court has held, where notice-and-comment procedures are not required, prior use of them in promulgating a rule does not bind the agency to use such procedures in making future changes.
See Perez
v.
Mortg. Bankers Ass'n,
575 U.S. 92, 101 (2015).

B. USDA Has Good Cause for Proceeding With an Interim Final Rule

Moreover, USDA also finds that, to the extent that prior notice and solicitation of public comment would otherwise be required or this action could not immediately take effect, the need to expeditiously replace its existing rules satisfies the “good cause” exceptions in 5 U.S.C. 553(b)(B) and (d). The APA authorizes agencies to issue regulations without notice and public comment when an agency finds, for

good cause, that notice and comment is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. 553(b)(B), and to make the rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As discussed in Sections I and II, above, USDA's prior rules were promulgated as a “supplement[ ]” to the Council on Environmental Quality's (CEQ's) NEPA regulations, and USDA also “adopt[ed]” the CEQ's regulations by incorporation. 7 CFR 1b.1(a) Following the rescission of CEQ's regulations, USDA's current rules are left to supplement a NEPA framework that no longer exists. USDA, thus far and as a temporary, emergency measure, has been continuing to operate under its prior procedures as if the CEQ NEPA framework still existed. This is not, however, tenable. As soon as proper procedures are available—which they are now—this makeshift framework needs to be rescinded immediately.

That being so, rescinding the old procedures immediately without replacing them could create a vacuum that would inflict immense uncertainty on agencies and regulated parties and potentially grind all projects under USDA's purview to a halt. So, pairing the rescission with a new structure immediately is absolutely critical. Because of this need for speed and certainty, notice-and-comment is, to the extent it was otherwise required at all, impracticable and contrary to the public interest.

For the same reasons stated in the present section, above, USDA finds that “good cause” exists under 5 U.S.C.§ 553(d)(3) to waive the 30-day delay of the effective date that would otherwise be required. This interim final rule will accordingly be effective immediately.

C. USDA Voluntarily Solicits Comment

As explained above, comment is not required prior to issuance because USDA's NEPA procedures were and are procedural and because, even if comment were otherwise required under the APA, good cause exists to forego it. Nevertheless, USDA has elected to voluntarily solicit comment on this interim final rule and encourages public comments on all aspects of this interim final rule. However, USDA emphasizes that reconsideration of CEQ rulemakings and actions, for example, CEQ's determination to rescind its NEPA regulations, are beyond the scope of this interim final rule. USDA is not soliciting comment on any of CEQ's prior rulemakings or amendments to CEQ's NEPA regulations. Nor does this interim final rule take a position on the Department's or any USDA agency's prior interpretations of NEPA's procedural requirements. Comments are requested for 30 days and must be submitted timely by July 30, 2025 to receive proper consideration by the Department. The Department may, after consideration of comments received, make changes accordingly to the interim final rule.

IV. Regulatory Certifications

A. Regulatory Planning and Review

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will determine whether a regulatory action is significant as defined by E.O. 12866 and will review significant regulatory actions. OIRA has determined that this interim final rule is significant as defined by E.O. 12866. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Department has developed the interim final rule consistent with E.O. 13563.

B. Congressional Review Act

Pursuant to subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801
et seq.
), OIRA has designated this interim final rule as not a major rule as defined by 5 U.S.C. 804(2). This procedural action, in any event, is not a rule at all under 5 U.S.C. 804(3)(C).

C. National Environmental Policy Act

This interim final rule is procedural in its entirety and therefore does not require preparation of a NEPA analysis. NEPA does not require environmental analysis or documentation when establishing procedural guidance. The determination that establishing department-level NEPA procedures does not require NEPA analysis and documentation has been upheld in
Heartwood, Inc.
v.
U.S. Forest Service,
230 F.3d 947, 954-55 (7th Cir. 2000).

D. Regulatory Flexibility Act

The Regulatory Flexibility Act only applies to general notices of proposed rulemaking. Because a notice of proposed rulemaking is not required for this action pursuant to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis has been prepared for this interim final rule. See 5 U.S.C. 601(2), 603(a).

E. Federalism

The Department has considered this interim final rule under the requirements of E.O. 13132,
Federalism.
The Department has determined that the interim final rule conforms with the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the Department has concluded that this interim final rule will not have federalism implications, and no further assessment of federalism implications is necessary.

F. Consultation and Coordination With Indian Tribal Governments

E.O. 13175,
Consultation and Coordination with Indian Tribal Governments,
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 the distribution of power and responsibilities between the Federal Government and Indian Tribes. This interim final rule does not impose substantial direct compliance costs on Tribal governments and does not preempt Tribal law. The Department has reviewed this interim final rule in accordance with the requirements of E.O. 13175 and has determined that this interim final rule will not have substantial direct effects on Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Therefore, consultation and coordination with Indian Tribal governments is not required for this interim final rule.

G. Energy Effects

The Department has reviewed the interim final rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
The Department has determined that the interim final rule will not constitute a significant energy action as defined in E.O. 13211.

H. Civil Justice Reform

The Department has analyzed the interim final rule in accordance with the principles and criteria in E.O. 12988,
Civil Justice Reform.
Upon publication of the interim final rule, (1) all State and local laws and regulations that conflict with the interim final rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this interim final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

Under section 3(a) E.O. 12988, agencies must review their regulations to eliminate drafting errors and ambiguities, draft them to minimize litigation, and provide a clear legal standard for affected conduct. Section 3(b) provides a list of specific issues for review to conduct the reviews required by section 3(a). USDA has conducted this review and determined that this interim final rule complies with the requirements of E.O. 12988.

I. Unfunded Mandates

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the effects of the interim final rule on State, local, and Tribal governments and the private sector. The interim final rule will not compel the expenditure of $100 million or more, adjusted annually for inflation, in any one (1) year by State, local, and Tribal governments in the aggregate or by the private sector. Therefore, a statement under section 202 of the Act is not required. This action also does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect subject to the requirements of 2 U.S.C. 1531-1538.

J. Paperwork Reduction Act

The interim final rule does not contain any recordkeeping or reporting requirements, or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.
) and its implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects

7 CFR Parts 1b and 372
Environmental impact statements.

7 CFR Part 520
Agricultural research, Environmental impact statements.

7 CFR Part 650
Environmental impact statements, Flood plains.

7 CFR Part 799
Environmental impact statements, Organization and functions (Government agencies).

7 CFR Part 1970
Administrative practice and procedure, Buildings and facilities, Environmental impact statements, Environmental protection, Grant programs, Housing, Loan programs, Natural resources, Utilities.

7 CFR Part 3407
Agricultural research, Environmental impact statements, Grant programs—agriculture.

36 CFR Part 220
Administrative practice and procedure, Environmental impact statements, Environmental protection, National forests, Science and technology.

Therefore, for the reasons set forth in the preamble, and under the authority of 5 U.S.C. 301 and 42 U.S.C. 4321-4347, the Department revises 7 CFR part 1b, and removes and reserves 7 CFR parts 372, 520, 650, 799, 1970, 3407, and 36 CFR part 220 as follows:

Title 7—Agriculture

1. Revise part 1b to read as follows:

PART 1b—NATIONAL ENVIRONMENT POLICY ACT

Sec.
1b.1
Purpose.
1b.2
Policy.
1b.3
Categorical exclusions and findings of applicability and no extraordinary circumstance.
1b.4
Categorical exclusion of USDA subcomponents and actions.
1b.5
Environmental assessments.
1b.6
Finding of no significant impact.
1b.7
Environmental impact statements.
1b.8
Records of decision.
1b.9
Efficient and effective environmental reviews.
1b.10
Documentation prepared by applicant or third party.
1b.11
Definitions and acronyms.
1b.12
Severability.

Authority:

5 U.S.C. 301; 42 U.S.C. 4321
et seq.;
E.O. 11514, 3 CFR, 1966-1970 Comp., p. 902, as amended by E.O. 11991, 3 CFR, 1978 Comp., p. 123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40 CFR 1507.3.

§ 1b.1
Purpose.

(a)
Purpose.
The purpose of this part is to outline the procedures by which the U.S. Department of Agriculture (hereinafter USDA or the Department) will integrate the National Environmental Policy Act (NEPA) into decision-making processes. Specifically, this part: describes the process by which USDA determines what actions are subject to NEPA's procedural requirements and the applicable level of NEPA review; ensures that relevant environmental information is identified and considered early in the process in order to ensure informed decision making; enables USDA to conduct coordinated, consistent, predictable and timely environmental reviews; reduces unnecessary burdens and delays; and implements NEPA's mandates regarding lead and cooperating agency roles, page and time limits, and sponsor preparation of environmental assessments and environmental impact statements.

(b)
Procedural and interpretive rule.
This part sets forth USDA's procedures and practices for implementing NEPA. It further explains USDA's interpretation of certain key terms in NEPA. It does not, nor does it intend to, govern the rights and obligations of any party outside the Federal government. It does, however, establish the procedures under which USDA will typically fulfill its requirements under NEPA.

(c)
Applicability.
This part is applicable to all mission areas, agencies and general offices (hereinafter USDA subcomponent or subcomponent) of the U.S. Department of Agriculture.

(d)
Authority.
NEPA imposes certain procedural requirements on the exercise of USDA's existing legal authority in relevant circumstances. Nothing contained in these procedures is intended, nor should be construed to limit, USDA's other authorities or legal responsibilities.

§ 1b.2
Policy.

(a)
USDA compliance with NEPA.
It is the policy of USDA that all USDA subcomponents' policies and programs shall be planned, developed, and implemented to comply with Congress' directives in NEPA, as amended by the Fiscal Responsibility Act of 2023, with the understanding that NEPA is a purely procedural statute that imposes no substantive environmental obligations or restrictions.

(1) The Under Secretary of Natural Resources and Environment (NRE) is responsible for ensuring that these USDA NEPA regulations are consistent with NEPA and will coordinate compliance for the Department.

(2) The Under Secretary of NRE may engage the Agricultural Council on Environmental Quality (7 U.S.C. 5401, Pub. L. 101-624) when developing, revising, or amending the necessary

processes to be used by the Office of the Secretary in reviewing, implementing, and planning its NEPA activities, determinations, and policies.

(3) The Under Secretary of NRE will consult with the Council on Environmental Quality (CEQ) while developing or revising the USDA NEPA regulations, as established in this part, in accordance with NEPA section 102(2)(B), 42 U.S.C. 4332(B).

(b)
Managing NEPA compliance.
Within USDA, the Under Secretary of NRE shall perform all of the duties and exercise all of the powers and functions of the senior agency official to ensure compliance with NEPA and the Department's policies for NEPA, including resolving implementation issues.

(1) The senior agency official shall:

(i) Administer the implementation of NEPA for USDA, to include USDA subcomponent adherence to this part and approving all revisions to this part;

(ii) Centralize information technology and databases regarding documentation and analyses required by NEPA and this part; and

(iii) Compile and submit the annual report to the Committee on Natural Resources of the House of Representatives and the Committee on Environment and Public Works of the Senate that identifies any environmental assessment and environmental impact statement that such lead agency did not complete by the deadline described in NEPA section 107(g), 42 U.S.C. 4336a(g) and provides an explanation for any failure to meet such deadline.

(2) The senior agency official may delegate authority to another mission area Under Secretary, or other USDA official for a subcomponent with NEPA responsibilities, to perform the duties of the senior agency official for the following:

(i) Ensuring that subcomponent staff have the resources and competencies necessary to produce timely, concise, and effective environmental documents;

(ii) Reviewing and approving the adoption or modification of any subcomponent-specific NEPA guidance (as permitted in paragraph (c) of this section);

(iii) Determining that an environmental impact statement is of extraordinary complexity and therefore, pursuant to NEPA section 107(e)(1)(B), 42 U.S.C. 4336a(e)(1)(B), may exceed 150 pages but not exceed 300 pages;

(iv) Reviewing and determining whether to authorize any deviation from the time limit for preparation of environmental assessments and environmental impacts statements, as established by NEPA section 107(g), 42 U.S.C. 4336a(g);

(v) Resolving implementation issues concerning documentation prepared by applicants and third parties (
e.g.,
contractors), as well as ensuring NEPA analyses for proposals of private applicants or other non-Federal entities commence at the earliest reasonable time;

(vi) Establishing subcomponent procedures for appropriate bonding or other security;

(vii) Approving, or identifying a designee to approve, alternative arrangements for complying with NEPA for emergency actions when a reasonably foreseeable significant impact is not anticipated, as described in § 1b.9(w)(1);

(viii) Receiving or responding to written requests that a lead agency be designated when requests are received from any Federal agency, or any State, Tribal, or local agency, or private person substantially affected by the absence of lead agency designation; and

(ix) Facilitating interagency disagreements concerning designation of a lead or joint agency or disagreements over proposed major Federal actions that might cause reasonably foreseeable significant impacts and determining whether the disagreement needs elevated to the Council on Environmental Quality.

(c)
Subcomponent-specific NEPA guidance.
It is the policy of USDA that USDA subcomponents may establish subcomponent-specific NEPA guidance when necessary to refine NEPA processes and practices to address subcomponent-specific laws and program efficiency. Additional subcomponent-specific guidance shall avoid creating unnecessary process and should not repeat the requirements, definitions, or other matters that are set forth in this part or the Act itself.

(d)
Annual report to Congress.
NEPA section 107(h)(1)(A) and (B), 42 U.S.C. 4336a(h)(1)(A) and (B), requires the head of each lead agency to annually submit to the Committee on Natural Resources of the House of Representatives and the Committee on Environment and Public Works of the Senate a report that identifies any environmental assessment and environmental impact statement that such lead agency did not complete by the deadline described in NEPA section 107(g), 42 U.S.C. 4336a(g) and provides an explanation for any failure to meet such deadline.

(1) The USDA Senior Agency Official (or their designee) shall coordinate USDA subcomponent responses for the annual report to Congress and consolidate these into one response that will be provided to Congress to ensure departmental awareness and oversight of environmental assessments and environmental impact statements not completed within the required deadlines established in NEPA section 107(g), 42 U.S.C. 4336a(g).

(2) Each USDA mission area that contains subcomponents with NEPA responsibilities will submit a report to the USDA Senior Agency Official, or their designee, following guidance provided by the Department on an annual basis.

(i) For those USDA mission areas with more than one subcomponent contributing to the report, subcomponent responses shall be consolidated and one response provided for the mission area.

(ii) The USDA Senior Agency Official, or their designee, shall ensure the final report meets the requirements of NEPA section 107(h), 42 U.S.C. 4336a(h).

(e)
Determining when NEPA applies.
Threshold determinations of whether NEPA applies may be made on a case-by-case or programmatic basis and record keeping of the justifications for these determinations is advisable. In determining whether NEPA applies, USDA will consider only the proposed action or a project at hand. NEPA does not apply to a proposal when:

(1) The proposal is not a “major Federal action.” The terms “major” and “Federal action,” each have independent force. NEPA applies only when both of these two criteria are met. Such a determination is inherently bound up in the facts and circumstances of each individual situation, and is thus reserved to the judgment of USDA in each instance;

(2) The proposal or decision is exempted from NEPA by law;

(3) The proposal or decision do not result in final Federal agency action under the Administrative Procedure Act, see 5 U.S.C. 704, or other relevant statute that also includes a finality requirement;

(4) In circumstances where Congress, by statute, has prescribed decisional criteria with sufficient completeness and precision such that a Federal agency retains no residual discretion to alter its action based on the consideration of environmental factors, then that function of USDA is nondiscretionary within the meaning of NEPA section 106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii), respectively), and NEPA does not apply to the action in question;

(5) Compliance with NEPA would clearly and fundamentally conflict with

the requirements of another provision of law; or

(6) The proposal is an action for which another statute's requirements serve the function of the Federal agency's compliance with the Act.

(f)
Determining the appropriate level of NEPA review.
At all steps in the following process, USDA subcomponents will consider the nature of the proposal or project at hand, the potentially affected environment, and the anticipated degree of effect:

(1) In accordance with NEPA section 106(b)(3), 42 U.S.C. 4336(b)(3), when making a determination on the level of review needed, a USDA subcomponent:

(i) May make use of any reliable data source; and

(ii) Is not required to undertake new scientific or technical research unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable.

(2) If a USDA subcomponent determines under § 1b.2(e) that NEPA applies to a proposal or decision, the subcomponent will then determine the appropriate level of NEPA review in the following sequence and manner:

(i) If the subcomponent has established, or adopted pursuant to NEPA section 109, 42 U.S.C. 336c, a categorical exclusion that covers the proposed action, the subcomponent will analyze whether to apply the categorical exclusion to the proposed action and apply the categorical exclusion, if appropriate, pursuant to § 1b.3(f) and (g).

(ii) If another agency has already established a categorical exclusion that covers the proposed action, the subcomponent will consider whether to adopt that exclusion pursuant to § 1b.3(c) so that it can be applied to the proposed action at issue, and to future activities or decisions of that type.

(iii) If the proposed action warrants the establishment of a new categorical exclusion, or the revision of an existing categorical exclusion, pursuant to § 1b.3(b), the subcomponent will consider whether to establish, or revise, and then apply the categorical exclusion to the proposed action pursuant to § 1b.3(f) and (g).

(iv) If a USDA subcomponent cannot apply a categorical exclusion to the proposed action consistent with paragraph (f)(2)(i) through (iii) of this section, the subcomponent will consider the proposed action's reasonably foreseeable significant impacts consistent with paragraph (f)(3) of this section, and then will:

(A) if the proposed action is not likely to have reasonably foreseeable significant impacts or the significance of the impacts is unknown, develop an environmental assessment, as described in § 1b.5; or

(B) if the proposed action is likely to have reasonably foreseeable significant impacts, develop an environmental impact statement, as described in § 1b.7.

(3) When considering whether the reasonably foreseeable impacts of an action are significant, USDA subcomponents will consider and analyze the potentially affected environment and degree of the effects of the action.

(i) Potentially affected environment means the condition of the physical, biological, social, and economic factors that may be impacted by an action.

(ii) In considering the degree of effects, USDA subcomponents should consider the following, as appropriate to the specific action and in the context of the potentially affected environment:

(A) Both short- and long-term effects.

(B) Both beneficial and adverse effects.

(C) Effects on public health and safety.

(D) Economic effects.

(E) Effects on the quality of life of the American people.

(iii) In providing rationale for whether the degree of effect is significant, responsible officials shall consider:

(A) How the unavoidable short- and long-term adverse impacts of implementing the action compares to the short- and long-term adverse or beneficial consequences of not implementing the action; and

(B) How the irreversible or irretrievable commitment of a resource, as part of the action, contributes to a loss of long-term productivity for the human environment.

(g)
Integrated environmental review and compliance.
It is the policy of USDA that, to the fullest extent possible, USDA subcomponents should conduct NEPA reviews concurrent and integrated with other environmental effects analyses and related surveys and studies required by all other Federal environmental review laws and Executive orders applicable to the proposal, including the Fish and Wildlife Coordination Act (16 U.S.C. 661
et seq.
), the National Historic Preservation Act of 1966 (54 U.S.C. 300101-306108), the Endangered Species Act of 1973 (16 U.S.C. 1531-1544), and the Clean Water Act of 1972 (33 U.S.C. 1251
et seq.
).

(h)
Limitations on actions during the NEPA process.
It is the policy of USDA that, except as provided in § 1b.9(v) and (w), while a NEPA review is ongoing a USDA subcomponent will take no action concerning a proposal that would have an adverse environmental effect or limit the choice of reasonable alternatives when alternatives are necessary.

(1) For proposals that are initially developed by applicants or other non-Federal entities, USDA subcomponents will:

(i) Coordinate with the non-Federal entity at the earliest reasonable time in the planning process to inform the entity what information a USDA subcomponent might need to comply with NEPA, as well as any other applicable environmental review processes, and establish a schedule for completing steps in the NEPA review process consistent with NEPA's statutory deadlines and any internal subcomponent NEPA schedule requirements; and

(ii) Begin the NEPA process by determining whether NEPA applies, as described in paragraph (e) of this section, and if it does, determine the appropriate level of NEPA review, as described in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2025-12326. Public record. Not legal advice.