[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13403]
[[Page Unknown]]
[Federal Register: June 3, 1994]
VOL. 59, NO. 106
Friday, June 3, 1994
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 372
[Docket No. 93-165-1]
RIN 0579-AA33
National Environmental Policy Act Implementing Procedures
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to establish procedures that set forth the
principles and practices the Animal and Plant Health Inspection Service
will follow to comply with the National Environmental Policy Act of
1969, the Council on Environmental Quality regulations, and the U.S.
Department of Agriculture regulations implementing the National
Environmental Policy Act. These procedures would replace APHIS
Guidelines Concerning Implementation of NEPA Procedures.
DATES: Consideration will be given only to comments received on or
before July 18, 1994.
ADDRESSES: Please send an original and three copies of your comments to
Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, room 804,
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please
state that your comments refer to Docket No. 93-165-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue, SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are encouraged to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT:
Mr. Robert E. Pizel, Branch Chief, Biotechnology, Biologics, and
Environmental Protection, APHIS, USDA, room 827, Federal Building, 6505
Belcrest Road, Hyattsville, MD 20782, (301) 436-8565.
SUPPLEMENTARY INFORMATION:
Background
The regulations of the President's Council on Environmental Quality
(CEQ) implementing section 102(2) of the National Environmental Policy
Act (hereinafter referred to as NEPA or the Act) are applicable to and
binding on all agencies of the Federal Government. Pursuant to the CEQ
implementing regulations, the Animal and Plant Health Inspection
Service (APHIS) is proposing to implement procedures to ensure that its
planning and decisionmaking are in accordance with the policies and
purposes of NEPA. The CEQ implementing regulations direct that agencies
shall include, at a minimum, procedures required by 40 CFR 1501.2(d),
1502.9(c)(3), 1505.1, 1506.6(e), 1507.3(b)(2), and 1508.4. APHIS'
proposed procedures would supplant the APHIS Guidelines Concerning
Implementation of NEPA Procedures originally published in the Federal
Register on August 28, 1979 (44 FR 50381-50384) and corrections as
published in the Federal Register on August 31, 1979 (44 FR 51272-
51274).
The Animal and Plant Health Inspection Service
APHIS, established in 1972 (7 CFR 371.1(a)), is a regulatory and
facilitative agency responsible for the protection of plant and animal
health. Its mission is to protect American agriculture by providing
leadership in ensuring the health, safety, and care of animals and
plants, improving agricultural productivity and competitiveness, and
contributing to the national economy and public health and safety.
APHIS accomplishes this mission by:
1. Excluding exotic plant and animal pests and diseases and noxious
weeds.
2. Detecting, monitoring, and managing plant and animal pests and
diseases and noxious weeds.
3. Facilitating agricultural imports and exports.
4. Providing for pure, safe, and efficacious veterinary biologics.
5. Protecting the welfare of certain animals.
6. Controlling nuisance mammals and birds.
7. Collecting, analyzing, and disseminating information.
8. Providing scientific and technical services.
APHIS' mission is carried out under five functional areas:
Pest and disease exclusion. APHIS conducts inspection and
quarantine activities at U.S. ports-of-entry to prevent the
introduction of exotic animal and plant diseases and pests. APHIS also
participates in inspection, survey, and control activities in foreign
countries to reinforce its domestic activities.
Animal and plant health monitoring. APHIS conducts programs to
assess animal and plant health and to detect endemic and exotic
diseases and pests.
Pest and disease management programs. APHIS carries out or
cooperates in programs to: Control and eradicate animal and plant pests
and diseases; reduce losses caused by wildlife damage; provide
technical assistance to State and local governments, farmer or rancher
groups, foundations, and the public; and ensure compliance with
interstate movement and other disease and pest control regulations
within the jurisdiction of APHIS.
Animal care. APHIS conducts regulatory activities that ensure the
humane treatment and care of certain animals.
Scientific and technical services. APHIS carries out other
activities, including the licensing and testing of veterinary
biologicals and the development of standards to ensure their safety and
effectiveness, diagnostic activities for control and eradication
programs, applied research for the development of methods and tools,
regulatory oversight to prevent damage and reduce risk, and regulation
of imports and exports of terrestrial plants under the Endangered
Species Act.
APHIS conducts cooperative programs with State and local agencies
and organizations and foreign countries to eradicate, manage, or
prevent the movement of plant and animal diseases and pests. More than
2,500 exotic insects, plants and animal diseases, weeds, and vertebrate
pests have been identified as posing a potentially serious threat to
agriculture in the United States.
APHIS' inspection and regulatory programs help prevent the
introduction into the United States of animal and plant pests and
diseases and noxious weeds of foreign origin and the spread of certain
established animal and plant pests and diseases and noxious weeds
within the country. Although limited inspection and testing activities
take place in certain countries of origin, APHIS' port-of-entry
inspection and quarantine are the primary line of defense against
exotic pests and pathogens. However, notwithstanding these efforts,
pests and pathogens occasionally are introduced into the United States.
Therefore, in order to comply with NEPA, CEQ, and U.S. Department
of Agriculture regulations, we are proposing to establish regulations
in 7 CFR by adding a new part 372 (Secs. 372.1 through 372.10) as
described below:
Section-by-Section Analysis
Purpose (Section 372.1)
This section would set forth the purpose of the procedures, namely
to implement section 102(2) of NEPA by assuring early and adequate
consideration of environmental factors in APHIS planning and
decisionmaking and by promoting the effective, efficient integration of
all relevant environmental requirements under NEPA. This strategy of
early and integrated consideration of environmental factors, diligently
pursued, will facilitate achieving the requirements of sections 101 and
102(1) as required by 40 CFR 1505.1(a).
Designation of Responsible APHIS Official (Section 372.2)
This section would designate the Administrator of APHIS, or an
agency official to whom the Administrator may formally delegate the
task, as the individual responsible for overall review of APHIS' NEPA
compliance.
Information and Assistance (Section 372.3)
This section would provide that information, including the status
of studies, and the availability of reference materials, as well as the
informal interpretations of APHIS' NEPA procedures and other forms of
assistance, will be made available upon request to: Environmental
Analysis and Documentation, Biotechnology, Biologics, and Environmental
Protection, APHIS, USDA, 6505 Belcrest Road, Hyattsville, Maryland
20782, (301) 436-8565; FAX (301) 436-8669.
Definitions (Section 372.4)
In addition to the definitions of terms contained in CEQ's
implementing regulations, which are incorporated by reference herein,
this section would define four terms which are unique to these proposed
regulations. As used in these procedures, the term ``APHIS'' means the
Animal and Plant Health Inspection Service; ``Decisionmaker'' means the
agency official responsible for executing findings of no significant
impact in the environmental assessment process and the record of
decision in the environmental impact statement process; ``Department''
means the United States Department of Agriculture (USDA); and
``environmental unit'' means Environmental Analysis and Documentation,
which is an analytical unit in Biotechnology, Biologics, and
Environmental Protection, charged with the responsibility of
coordinating APHIS compliance with NEPA and other environmental laws
and regulations.
Classification of Actions (Section 372.5)
This proposed section, developed in four parts, complies with the
directive in CEQ's implementing regulations that agencies classify
actions for purposes of the NEPA process (40 CFR 1507.3(b)(2)). The CEQ
regulation call for development of ``specific criteria for and
identification of those typical classes of action'' that (1) normally
require environmental impact statements, (2) normally require
environmental assessments but not necessarily environmental impact
statements, (3) normally require neither environmental impact
statements nor environmental assessments and are therefore
categorically excluded, and (4) normally are categorically excluded
but, because of extraordinary circumstances, may have significant
environmental effects and require preparation of environmental
documentation.
1. Actions Normally Requiring Environmental Impact Statements
An environmental impact statement (EIS) will normally be prepared
for the following types of actions:
Administrative procedures that seek to establish broad-
scale, significant, impact-generating strategies, methods, or
techniques (e.g., treatment options of individual large-scale aerial
application of chemicals) as the means of dealing with pervasive animal
and plant health issues within the purview of APHIS.
This category of action might include (1) contingency or
``emergency'' response strategies (comprehensive in scope)--the design
of which is intended to provide solutions, generally on very short
notice (thereby severely limiting subsequent consideration of
alternatives by planners and decisionmakers)--to widespread outbreaks
of animal and plant diseases or similar exigencies; and (2) strategic
or other long-range plans that purport to adopt for future application
in the context of extensive APHIS programs a preferred course of action
having the potential for significant environmental impact.
General administrative (programmatic) examination of APHIS
strategies and options for dealing with issues that have important
implications for the maintenance and enhancement of environmental
quality.
Programmatic environmental impact statements are useful not only
when dealing with exigencies of substantial proportion, but also for
any substantive APHIS program as a means of effectively and efficiently
integrating environmental considerations, process, and values into
program planning and service delivery efforts. The type of action for
which a programmatic EIS might be appropriate could include an
administrative proceeding undertaken to rationalize, prioritize, and
streamline--particularly from the standpoint of competing policies
(e.g., environmental policies and economic development)--essential
activities related to program mission and functions. Consider, for
example, the scoping notice for the Veterinary Services programmatic
document that was published by APHIS in the Federal Register on October
9, 1992 (57 FR 46533-46534).
2. Actions Normally Requiring Environmental Assessments
The preparation of program EIS's--whether or not exigent
circumstances may be involved--does not relieve APHIS from taking a
``hard look'' at refinements to, or site-specific implementation of,
program alternatives that have not been ``categorically excluded.'' The
following classes of action, which normally do not have the potential
to affect significantly the quality of the human environment, will be
evaluated for NEPA purposes in the context of environmental assessments
(EA's), some of which may be tiered to broader programmatic EIS's:
Policymaking and rulemaking proposals that involve program
plans, techniques, methods, or other activities likely to have a
consequential effect on the physical or natural environment or that may
affect opportunities for the public, nongovernmental organizations, and
others to influence environmental planning and decisionmaking.
Development of program plans or similar nonexperimental
approaches that seek to establish in more limited contexts impact-
generating strategies, methods, or techniques as the means of dealing
with animal and plant health issues within the purview of APHIS.
Included in this class would be ``action plans'' designed to
address proposals to remedy specific problems, including plant pest
infestations, animal diseases, depredating animals, and the like. Other
planning activities for which EA's normally will be prepared include
substantial APHIS involvement in the efforts of USDA's Forest Service,
the Department of Interior's Bureau of Land Management, States, and
Indian Tribes to eradicate or control plant pests, animal diseases, or
depredating or nuisance species in various districts or regions.
Site-specific implementation of action plans and
approaches mentioned in the previous paragraph of this section, except
where isolated activities, introductions, or applications, as developed
more fully in the following subsection entitled ``Categorically
Excluded Actions,'' are contemplated.
There are some categories of APHIS action that, while susceptible
to consideration in broad programmatic impact statements undertaken
pursuant to NEPA, are usually identified with more resource-specific
environmental mandates and may be the subject of periodic planning and
review requirements. In the process of satisfying those requirements,
all operational aspects of APHIS facilities, including storage and
disposal of pesticides, chemicals, and laboratory wastes, will normally
be thoroughly examined. But compliance with such planning and review
requirements does not satisfy NEPA, which is applicable to ``adoption
of formal plans * * *'' (40 CFR 1508.18(b)(2)).
The following classes of action may be examined in the context of
specific environmental mandates other than NEPA, but will nevertheless
be analyzed within an EA in order to facilitate the NEPA decision:
Planning, design, and construction or acquisition of major
new facilities or proposals to modify substantially existing
facilities.
Disposition of laboratory waste and other hazardous or
toxic materials, except as provided under subsection 3 of this section.
Biotechnology and biological control activities within APHIS'
oversight authority are conducted pursuant to permits or other
authorizations that may include conditions to protect the environment,
the granting of exemption from regulation, or a notification procedure.
These activities normally will be examined in the context of EA's
crafted to the permitting processes:
Approval and issuance of permits for the release into the
environment of genetically engineered organisms and products, and the
release into the environment of exotic organisms.
There is one final category of action that fits within the
classification of normally requiring an EA-research and testing. Not
all research and testing, however, need be subjected to the EA process.
Only where research or testing either creates a likelihood of harm to
the quality of the human environment or represents an irretrievable
commitment to the resulting technology will EA's normally be required:
Research or testing that will be conducted outside of a
laboratory or other containment area--field trials, for example--or
that reaches a stage of development (e.g., formulation of pre-marketing
strategies) that forecasts an irretrievable commitment to new products
or technology.
3. Categorically Excluded Actions
The CEQ implementing regulations define the term ``categorical
exclusion'' as ``a category of actions which do not individually or
cumulatively have a significant effect on the human environment and
which have been found to have no such effect in procedures adopted by a
Federal agency in implementation of these regulations * * *.'' (40 CFR
1508.4). Environmental documents are not prepared for categorically
excluded actions unless exceptional circumstances, as provided in
subsection 4 below, are present. Indeed, CEQ ``strongly discourages
procedures that would require the preparation of additional paperwork
to document that an activity has been categorically excluded'' (CEQ
Guidance Regarding NEPA Regulations, 48 FR 34265, July 28, 1983).
The Department has promulgated categorical exclusions of actions
that are applicable to all departmental agencies whose procedures do
not provide otherwise. Those categorical exclusions, codified at 7 CFR
1b.3a), are appropriate for APHIS. Other APHIS actions that qualify for
categorical exclusion from the NEPA process are identified herein.
Consistent with CEQ's directive, ``broadly defined criteria'' have been
employed to ``characterize types of actions that, based on APHIS'
experience, do not cause significant environmental effects'' (49 FR
34265, July 28, 1983).
Insofar as safeguarding environmental quality is concerned, the
proper use of chemicals, pesticides, and other potentially hazardous or
harmful substances, materials, and devices in the development and
delivery of program goods and services is of the utmost concern to
APHIS. But not every proposed use of potentially hazardous or harmful
substances, materials, or devices will require application of the NEPA
process. Experience suggests that the following category of actions,
individually or cumulatively, will not have a significant effect on the
human environment:
Routine measures employed by the agency to pursue its
mission and functions, such as identifications, inspections, surveys,
sampling, testing, seizures, quarantines, removals, sanitizing,
inoculations, and monitoring, including the use--according to any label
instructions or other lawful requirements and consistent with standard,
published program practices and precautions--of chemicals, pesticides,
or other potentially hazardous or harmful substances, materials, and
target-specific devices or remedies, provided that such use (1) is
localized in nonurban areas to individual parcels such as farms,
ranches, or nurseries, or contained (and not aerially applied or
administered) in urbanized areas to discrete sites that do not cater to
the general public, and is limited in terms of quantity, i.e., low- or
ultra-low volume or individualized dosages and remedies; (2) will not
cause contaminants to enter water bodies, including wetlands; (3) does
not adversely affect any federally protected species or critical
habitat; and (4) is not persistent in the environment and does not
cause bioaccumulation. All circumstances delineated above (insofar as
they may pertain to a particular action) must be present for any such
use to be categorically excluded from the NEPA process.
Examples of actions covered by this categorical exclusion include
inoculation of discrete herds of livestock, or wildlife treatment
strategies undertaken in contained areas (such as a zoo, an exhibition,
or an aviary); pesticide treatments applied to infested plants on a
homesite; and isolated (for example, along a highway) weed control
efforts.
Research and small-scale testing activities represent another
category of actions that will require application of the NEPA process
only in very limited contexts--essentially those described in ``Actions
normally requiring EA's, Research and Testing.'' Other statutory
requirements (those contained in the Federal Insecticide, Fungicide,
and Rodenticide Act, for example) may be applicable to some research
and testing activities regardless of how they may be classified for
NEPA purposes in these procedures. Nevertheless, categorical exclusion
from the NEPA process is appropriate for the following described
actions:
Activities that are carried out in laboratories,
facilities, or other areas designed to eliminate the potential for
harmful environmental effects (internal or external) and to provide for
lawful waste disposal.
Examples of actions covered by this categorical exclusion include:
The development and/or production (including formulation, repackaging,
movement, and distribution) of approved and/or licensed program
material, devices, reagents, and biologics; research, testing, and
development of animal repellents; and development and production of
sterile insects.
The following additional categories of actions also qualify for
categorical exclusion from the NEPA process:
Routine precautionary measures, including identifications,
inspections, surveys, testing, inoculating, and monitoring, of a
limited scope and intensity that are designed to assure the proper
care, protection, and treatment of animals.
Rehabilitation of existing laboratories and other APHIS
facilities, functional replacement of parts and equipment, and minor
additions to such existing APHIS facilities.
Agency actions including the issuance of permits,
authorization to ship, or licensing involving a category of veterinary
biological product which has been previously licensed, unless the
product has been subsequently shown to be unsafe, or will be used at
substantially higher dosage levels or for substantially different
applications or circumstances than in the use for which the product was
previously approved. Also, the issuance of a license, permit, or
authorization to ship for field testing products that had not been
previously licensed that do not contain live microorganisms or that are
used only for in vitro diagnostic testing.
4. Exceptions for Categorically Excluded Actions
Whenever the decisionmaker determines that an action listed in
``Categorically Excluded Actions'' may have the potential to affect
``significantly'' the quality of the ``human environment,'' as those
terms are defined at 40 CFR 1508.27 and 1508.14, respectively, an
environmental impact statement or an EA will be prepared.
Early Planning for Applicants and Non-APHIS Entities (Section 372.6)
This section is designed to satisfy the directive in the CEQ
implementing regulations that agencies make provision ``for cases where
actions are planned by private applicants or other *** entities before
Federal involvement ***.'' (40 CFR 1501.2(d)). Written instructions or
guidelines outlining what is needed to comply with environmental
planning and documentation requirements for all prospective applicants
cannot be included in these procedures. It is the intention of APHIS
ultimately to identify environmental data needs for each major APHIS
program that requires analysis under these procedures and to provide
for those needs as an integral part of program standards and practices.
Until that goal can be attained, however, each prospective applicant
needing approval for proposed activities normally requiring
environmental documentation is encouraged to contact, at the earliest
opportunity, APHIS' program staff, which will then coordinate with the
environmental unit to design an appropriate compliance procedure
tailored to the needs of the particular proposal.
Consultation (Section 372.7)
This section encourages prospective applicants and others to
contact APHIS program officials to determine what types of
environmental analyses or documentation, if any, need to be prepared.
Early consultation is not intended to satisfy the requirements of NEPA
alone. NEPA documents should incorporate, to the fullest extent
possible, surveys and studies required by other environmental statutes.
Implementing regulations of other primary environmental statutes, such
as the Endangered Species Act, also make provision for early
consultation and resolution of major issues by prospective applicants.
Only by taking full advantage of opportunities for early environmental
planning can APHIS, entities it regulates, the public, and others,
avoid excessive costs and undue administrative delays often associated
with a poorly timed environmental analysis process.
Questions regarding these procedures and their applicability to
particular planning and decisionmaking situations are inevitable. No
procedure, regardless of how meticulously it may have been fashioned,
can anticipate every contingency. For this reason, prospective
applicants, and others who may have questions concerning these
procedures, their applicability, meaning, or any other problem, should
not hesitate to contact program officials and consult with the
environmental unit at the earliest opportunity. Responses to all such
questions will be provided as quickly as possible, in most cases within
a single work day of securing any necessary factual information.
Major Planning and Decision Points and Public Involvement (Section
372.8)
This section is designed to satisfy the directives in the CEQ
implementing regulations that agencies (1) designate ``the major
decision points for APHIS' principal programs likely to have a
significant effect on the human environment and (assure) that the NEPA
process corresponds with them'' (40 CFR 1505.1(b) (1992)); and (2)
``make diligent efforts to involve the public'' in NEPA-related
activities (40 CFR 1506.6).
Proposed Sec. 372.5(a) of these procedures describes actions that
normally require preparation of an EIS. The narrative explanation for
that section emphasizes the desirability of adopting a broad
programmatic approach to NEPA compliance that corresponds with APHIS'
planning and service delivery efforts. Furthermore, it is in the
planning stages of policy, program, or project development where the
NEPA process can most effectively and efficiently be employed in the
furtherance of the Act's ``pollution prevention'' purpose.
Like many agencies, APHIS makes ample use of long-range planning
for policy development and formulation of program strategies. Most
major policies and programs are already in place. Still, NEPA is
applicable to ongoing activities, including policies, programs, and
projects, no less than it is to new ones (40 CFR 1508.18). Thus, for
purposes of rationalizing and better coordinating existing policies and
program strategies consistent with NEPA, a broad programmatic approach
to environmental planning is logical.
Planning is often ad hoc in nature and specific points (especially
the beginning point) can seldom be anticipated, at least with respect
to particular events, times, or individuals. It may also be difficult
to judge at what point in the planning process a ``proposal'' exists
for NEPA purposes.\1\ The NEPA process will be fully coordinated with
APHIS planning. Specific decision points will be identified and
communicated to the public in a notice of intent and in the context of
the public scoping process.
---------------------------------------------------------------------------
\1\``Proposal'' exists at that stage in the development of an
action when an agency subject to the Act has a goal and is actively
preparing to make a decision on one or more alternative means of
accomplishing that goal, and the effects can be meaningfully
evaluated. Preparation of an environmental impact statement on a
proposal should be timed (Sec. 1502.5) so that the final statement
may be completed in time for inclusion in any recommendation or
report on the proposal. A proposal may exist in fact as well as by
agency declaration that one exists (40 CFR 1508.23). But see,
Executive Office of the President, Council on Environmental Quality,
Environmental Quality 1989 21 (20th Annual Report, 1990) (``The
impact statement was required to force the agencies to take the
substantive provisions of the Act seriously and to consider the
environmental policy directives of the Congress in the formulation
of agency plans and procedures'') (emphasis supplied).
---------------------------------------------------------------------------
A principal purpose of NEPA is to restore public confidence in the
Federal Government's capacity to achieve important public purposes and
objectives while at the same time maintaining and enhancing the quality
of the environment. In furtherance of that purpose, both the Act and
the CEQ implementing regulations require extensive public involvement
in the preparation of necessary environmental documentation. APHIS is
committed to an open and accessible NEPA process. There will be an
early and open process for determining the scope of issues to be
addressed in the EIS process.
A notice of intent to prepare an EIS will be published in the
Federal Register as soon as it is determined that a proposed major
Federal action has the potential to affect significantly the quality of
the human environment. The notice may include a preliminary scope of
environmental study. All public and other involvement in APHIS' EIS
process, including the scoping process, commenting on draft documents,
and participation in the preparation of any supplemental documents,
will be pursuant to the CEQ implementing regulations.
Early public and other agency involvement is especially useful in
the EA process where exigent circumstances (animal disease or plant
pest outbreaks, for example) require rapid APHIS response. In such an
event, any EA comment period would, of necessity, be extremely
abbreviated. Opportunities for early public involvement in the EA
process will be announced in the same fashion as the availability of
EA's and findings of no significant impact, as specified in
Sec. 372.8(b)(3).
Section 1506.6 of the CEQ regulations requires agencies to involve
the public and others in implementing their NEPA procedures which,
according to CEQ, ``includes public involvement in the preparation of
EA's and findings of no significant impact. These are public
``environmental documents'' under Sec. 1506.6(b), and, therefore,
agencies must give public notice of their availability'' (CEQ, Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations, 46 FR 18037, March 23, 1981). Notification of the
availability of EA's and findings of no significant impact for proposed
activities will be published in the Federal Register, unless it is
determined that the effects of the action are primarily of local
concern. Where the effects of the action are primarily of local
concern, notice will normally be provided through publication of notice
in a local or area newspaper of general circulation, or through the
provisions of Executive Order 12372, Intergovernmental Review of
Federal Programs. Under this order, the State would act as a
clearinghouse for review and public notice of the EA. See, the
regulations implementing Executive Order 12372--Intergovernmental
Review of Department of Agriculture Programs and Activities, 7 CFR part
3015, subpart V.
All environmental documents, comments received, and any underlying
documents, including interagency correspondence where such
correspondence transmits comments of Federal agencies on the
environmental impact of proposals for which documents were prepared,
will be made available to the public upon request. Materials to be made
available will be provided without charge, to the extent practicable,
or at a fee which is not more than the actual cost of reproducing
copies required to be sent to other Federal agencies, including CEQ.
Processing and Use of Environmental Documents (Section 372.9)
This section would satisfy provisions of the CEQ regulations
designed ``to ensure that decisions are made in accordance with the
policies and purposes of the Act'' (40 CFR 1505.1).
EA's will be forwarded immediately upon completion to the
decisionmaker for a determination of whether the proposed action may
have significant effects on the human environment, and for the
execution, as appropriate, of a finding of no significant impact or a
notice of intent to prepare an EIS. At this time, the EA's will be made
available consistent with the notification provisions of Sec. 372.8 of
these procedures.
Comments, if any, will be transmitted, together with any analyses
and recommendations, to the APHIS decisionmaker who may then take
appropriate action.
Changes to environmental assessments and findings of no significant
impact which are prompted by comments, new information, or any other
source, will normally be announced in the same manner as the notice of
availability (except that all commenters will be mailed copies of
changes directly) prior to implementing the proposed action or any
alternative.
EIS's will be processed according to the CEQ regulations from
inception (publication in the Federal Register of the notice of intent)
to completion (publication of a final environmental impact statement or
a supplement).
For rulemaking or adjudicatory proceedings, relevant environmental
documents, comments, and responses will be part of the administrative
record.
For all APHIS activity that is subject to the NEPA process, the
environmental record, including comments and responses, will accompany
proposals through the existing review process. The APHIS decisionmaking
for each NEPA document will consider the range of alternatives
discussed in environmental documents in reaching their determinations
on the merits of proposed actions.
Supplementing Environmental Impact Statements (Section 372.10)
This section describes how supplemental EIS's are introduced into
the administrative record.
The decision to prepare a supplemental EIS is similar to the
decision to prepare an EIS in the first instance. As such, that
decision turns on a myriad of factors. But once a decision to
supplement an EIS is made, a notice of intent will be published in the
Federal Register, which in effect serves to reopen the administrative
record. The supplemental document will then be processed in the same
fashion (exclusive of scoping) as a draft and a final statement, unless
alternative procedures are approved by CEQ.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be not significant for purposes of
Executive Order 12866, and, therefore, has not been reviewed by the
Office of Management and Budget.
These proposed procedures satisfy the requirement to implement
CEQ's NEPA regulations and have been designed to reduce to a minimum
the regulatory burden on small entities and all other individuals and
organizations, public and private.
Under these circumstances, the Administrator of APHIS has
determined that these procedures would not have a significant economic
impact on a substantial number of small entities.
Executive Order 12372
This program/activity is listed in the catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V).
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If these proposed procedures are adopted: (1) All
State and local laws and regulations that are in conflict with these
procedures will be preempted; (2) no retroactive effect will be given
to this rule; and (3) administrative proceedings will not be required
before parties may file suit in court challenging this rule.
The National Environmental Policy Act
Section 372.5(b)(1) of these proposed procedures provides, in part,
that an EA will normally be prepared for ``rulemaking proposals that *
* * may affect opportunities for the public, nongovernmental
organizations, and others to influence environmental planning and
decisionmaking.'' See, Illinois Commerce Comm'n v. ICC, 848 F.2d 1246,
1256 (D.C. Cir. 1988) (``it is not at all apparent that a change in
procedure alone will not affect the environment--the new procedure may,
for example, lessen the opportunity for environmental groups to
influence the agency's final decision''). An environmental assessment,
which examines opportunities for public involvement in APHIS'
environmental process, has been prepared. The environmental assessment
concludes essentially that public involvement in APHIS' environmental
planning and decisionmaking is consistent with NEPA requirements. In
the circumstances, a finding of no significant impact is appropriate.
Copies of the environmental assessment may be obtained by writing
the contact for this rulemaking provided under the section heading For
Further Information Contact. Comments are invited and should be
submitted to this same contact on or before the comment due date for
this proposed rulemaking.
Paperwork Reduction Act
These proposed procedures contain no information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 372
Administrative practice and procedure, Environmental assessment,
Environmental impact statement, National Environmental Policy Act.
Accordingly, title 7, chapter III, of the Code of Federal
Regulations is proposed to be amended by adding a new part 372, to read
as follows:
PART 372--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES
Sec.
372.1 Purpose.
372.2 Designation of responsible APHIS official.
372.3 Information and assistance.
372.4 Definitions.
372.5 Classification of actions.
372.6 Early planning for applicants and non-APHIS entities.
372.7 Consultation.
372.8 Major planning and decision points and public involvement.
372.9 Processing and use of environmental documents.
372.10 Supplementing environmental impact statements.
Authority: 42 U.S.C. 4321 et seq.; 40 CFR parts 1500-1508; 7 CFR
parts 1b, 2.17, 2.51, 371.2, 371.2(m), 371.13(d), and 371.14(b).
Sec. 372.1 Purpose.
These procedures implement section 102(2) of the National
Environmental Policy Act by assuring early and adequate consideration
of environmental factors in Animal and Plant Health Inspection Service
planning and decisionmaking and by promoting the effective, efficient
integration of all relevant environmental requirements under the
National Environmental Policy Act.
Sec. 372.2 Designation of responsible APHIS official.
The Administrator of APHIS, or an agency official to whom the
Administrator may formally delegate the task, is responsible for
overall review of APHIS' NEPA compliance.
Sec. 372.3 Information and assistance.
Information, including the status of studies, and the availability
of reference materials, as well as the informal interpretations of
APHIS' NEPA procedures and other forms of assistance, will be made
available upon request to Environmental Analysis and Documentation,
Biotechnology, Biologics, and Environmental Protection, APHIS, USDA,
6505 Belcrest Road, Hyattsville, Maryland 20782, (301) 436-8565; FAX
(301) 436-8669.
Sec. 372.4 Definitions.
The terminology set forth in the Council on Environmental Quality's
(CEQ) implementing regulations at 40 CFR part 1508 is incorporated
herein. In addition, the following terms as used in these procedures
are defined as follows:
APHIS. The Animal and Plant Health Inspection Service (APHIS).
Decisionmaker. The agency official responsible for executing
findings of no significant impact in the environmental assessment
process and the record of decision in the environmental impact
statement process.
Department. The United States Department of Agriculture (USDA).
Environmental unit. Environmental Analysis and Documentation, the
analytical unit in the Biotechnology, Biologics, and Environmental
Protection responsible for coordinating APHIS' compliance with the
National Environmental Policy Act and other environmental laws and
regulations.
Sec. 372.5 Classification of actions.
(a) Actions normally requiring environmental impact statements. An
environmental impact statement will normally be prepared for the
following types of actions:
(1) Administrative procedures that seek to establish broad-scale,
significant, impact-generating strategies, methods, or techniques
(e.g., treatment options of individual large-scale aerial application
of chemicals) as the means of dealing with pervasive animal and plant
health issues within the purview of APHIS. Examples of this category of
actions include:
(i) Contingency or ``emergency'' response strategies (comprehensive
in scope)--the design of which is intended to provide solutions,
generally on very short notice, thereby severely limiting subsequent
consideration of alternatives by planners and decisionmakers--to
widespread outbreaks of animal and plant diseases or similar
exigencies, and
(ii) Strategic or other long-range plans that purport to adopt for
future application, in the context of extensive APHIS programs, a
preferred course of action having the potential for significant
environmental impact.
(2) General administrative (programmatic) examination of APHIS
strategies and options for dealing with issues that have important
implications for the maintenance and enhancement of environmental
quality. An example of this category of actions is:
(1) An administrative proceeding undertaken to rationalize,
prioritize, and streamline--particularly from the standpoint of
competing policies (e.g., environmental policies and economic
development)--essential activities related to program mission and
functions.
(b) Actions normally requiring environmental assessments. Classes
of actions identified below, which normally do not have the potential
to affect significantly the quality of the human environment, will, for
NEPA purposes, be evaluated in the context of environmental
assessments.
(1) Policymaking and rulemaking proposals that involve program
plans, techniques, methods, or other activities likely to have a
consequential effect on the physical or natural environment or that may
affect opportunities for the public, nongovernmental organizations, and
others to influence environmental planning and decisionmaking.
(2) Development of program plans or similar nonexperimental
approaches that seek to establish in more limited contexts impact-
generating strategies, methods, or techniques as the means of dealing
with animal and plant health issues within the purview of APHIS.
Examples of this category of actions include:
(i) Proposals to remedy specific problems, including plant pest
infestations, animal diseases, and depredating animals; and
(ii) Substantial APHIS involvement in the planning efforts of the
USDA's Forest Service, the Department of the Interior's Bureau of Land
Management, States, and Indian Tribes to eradicate or control plant
pests, animal disease, or depredating animals.
(3) Site-specific implementation of action plans and approaches
mentioned in paragraph (b)(2) of this section, except where isolated
activities, introductions, or applications, as developed more fully in
the following subsection entitled ``Categorically Excluded Actions,''
are contemplated.
(4) Planning, design, and construction or acquisition of major new
facilities, or proposals for substantial modifications to existing
facilities.
(5) Disposition of laboratory waste and other hazardous or toxic
materials, except as provided under paragraph (c) of this section.
(6) Approval and issuance of permits for:
(i) The release into the environment of genetically engineered
organisms and products; and
(ii) The release into the environment of exotic organisms.
(7) Research or testing that:
(i) Will be conducted outside of a laboratory or other containment
area (field trials, for example); or
(ii) Reaches a stage of development (e.g., formulation of pre-
marketing strategies) that forecasts an irretrievable commitment to the
resulting products or technology.
(c) Categorically excluded actions. The Department has promulgated
categorical exclusions of actions that are applicable to all agencies
whose procedures do no provide otherwise. Those categorical exclusions,
codified at 7 CFR 1b.3(a), are adopted as entirely appropriate for
APHIS. Other categories of APHIS actions which do not individually or
cumulatively have a significant effect on the human environment and for
which neither environmental assessment nor environmental impact
statements will be prepared include:
(1)(i) Routine measures employed by the agency to pursue its
mission and functions, such as identifications, inspections, surveys,
sampling, testing, seizures, quarantines, removals, sanitizing,
inoculations, and monitoring, including the use--according to any label
instructions or other lawful requirements and consistent with standard,
published program practices and precautions--of chemicals, pesticides,
or other potentially hazardous or harmful substances, materials, and
target-specific devices or remedies, provided that such use:
(A) Is localized in nonurban areas to individual parcels such as
farms, ranches, or nurseries, or contained (and not aerially applied or
administered) in urbanized areas to discrete sites that do not cater to
the general public, and is limited in terms of quantity, i.e., low- or
ultra-low volume or individualized dosages and remedies;
(B) Will not cause contaminants to enter water bodies, including
wetlands;
(C) Does not adversely affect any federally protected species or
critical habitat; and
(D) Is not persistent in the environment and does not cause
bioaccumulation.
(ii) All circumstances delineated in paragraph (c)(i) (A) through
(D) of this section (insofar as they may pertain to a particular
action) must be affirmed for any such use to be categorically excluded
from the NEPA process. Examples of this category of actions include:
(A) Inoculation of discrete herds of livestock, or wildlife
treatment strategies undertaken in contained areas (such as a zoo, an
exhibition, or an aviary);
(B) Pesticide treatments applied to infested plants on a homesite
without contamination of water; and
(C) Isolated (for example, along a highway) weed control efforts.
(2) Activities that are carried out in laboratories, facilities, or
other areas designed to eliminate the potential for harmful
environmental effects--internal or external--and to provide lawful
waste disposal. Examples of this category of actions include:
(i) The development and/or production (including formulation,
repackaging, movement, and distribution) of approved and/or licensed
program material, devices, reagents, and biologics;
(ii) Research, testing, and development of animal repellents; and
(iii) Development and production of sterile insects.
(3) Routine precautionary measures, including identifications,
inspections, surveys, testing, inoculating, and monitoring of a limited
scope and intensity, designed to assure the proper care, protection,
and treatment of animals.
(4) Rehabilitation of existing laboratories and other APHIS
facilities, functional replacement of parts and equipment, and minor
additions to such existing APHIS facilities.
(5) Agency actions, including the issuance of permits,
authorization to ship, or licensing involving a category of veterinary
biological product which has been previously licensed, unless the
product has been subsequently shown to be unsafe, or will be used at
substantially higher dosage levels or for substantially different
applications or circumstances than in the use for which the product was
previously approved. Also, the issuance of a license, permit, or
authorization to ship for field testing products that had not been
previously licensed that do not contain live microorganisms or that are
used only for in vitro diagnostic testing.
(d) Exceptions for categorically excluded actions. Whenever the
decisionmaker determines that an action listed in paragraph (c) of this
section may have the potential to affect ``significantly'' the quality
of the ``human environment,'' as those terms are defined at 40 CFR
1508.27 and 1508.14, respectively, an environmental impact statement or
an environmental assessment will be prepared.
Sec. 372.6 Early planning for applicants and non-APHIS entities.
Each prospective applicant who anticipates the need for approval of
proposed activities classified as normally requiring environmental
documentation is encouraged to contact, at the earliest opportunity,
APHIS' program staff, which will then coordinate with the environmental
unit to design a streamlined compliance course tailored to the needs of
the particular proposal.
Sec. 372.7 Consultation.
Prospective applicants are encouraged to contact APHIS program
officials to determine what types of environmental analyses or
documentation, if any, need to be prepared. Early consultation is not
intended to satisfy the requirements of NEPA alone. NEPA documents will
incorporate, to the fullest extent possible, surveys and studies
required by other environmental statutes, such as the Endangered
Species Act.
Sec. 372.8 Major planning and decision points and public involvement.
(a) Major planning and decision points. The NEPA process will be
fully coordinated with APHIS planning by APHIS' environmental unit in
cooperation with program personnel. Specific decision points or
milestones will be identified and communicated to the public and others
in a notice of intent and in the context of the public scoping process.
(b) Public involvement. There will be an early and open process for
determining the scope of issues to be addressed during environmental
analysis.
(1) A notice of intent to prepare an environmental impact statement
will be published in the Federal Register as soon as it is determined
that a proposed major Federal action has the potential to affect
significantly the quality of the human environment. The notice may
include a preliminary scope of environmental study. All public and
other involvement in APHIS' environmental impact statement process,
including the scoping process, commenting on draft documents, and
participation in the preparation of any supplemental documents, will be
pursuant to CEQ's implementing regulations.
(2) Early public and other agency involvement in the environmental
assessment process will be invited through announcements made available
in the same fashion as the environmental assessments and findings of no
significant impact.
(3) Notification of the availability of environmental assessments
and findings of no significant impact for proposed activities will be
published in the Federal Register, unless it is determined that the
effects of the action are primarily of local concern. Where the effects
of the action are primarily of local concern, notice will normally be
provided through publication in a local or area newspaper of general
circulation and/or the procedures implementing Executive Order 12372,
``Intergovernmental Review of Federal Programs.''
(4) All environmental documents, comments received, and any
underlying documents, including interagency correspondence where such
correspondence transmits comments of Federal agencies on the
environmental impact of proposals for which documents were prepared,
will be made available to the public upon request. Materials to be made
available will be provided without charge, to the extent practicable,
or at a fee which is not more than the actual cost of reproducing
copies required to be sent to other Federal agencies, including CEQ.
Sec. 372.9 Processing and use of environmental documents.
(a) Environmental assessments will be forwarded immediately upon
completion to the decisionmaker for a determination of whether the
proposed action may have significant effects on the quality of the
human environment, and for the execution, as appropriate, of a finding
of no significant impact or a notice of intent to prepare an
environmental impact statement. Simultaneously, the availability of
environmental assessments will be announced by publishing a notice
consistent with the notification provisions of Sec. 372.8.
(b) Comments, if any, will be transmitted, together with any
analyses and recommendations, to the APHIS decisionmaker who may then
take appropriate action.
(c) Changes to environmental assessments and findings of no
significant impact which are prompted by comments, new information, or
any other source, will normally be announced in the same manner as the
notice of availability (except that all commenters will be mailed
copies of changes directly) prior to implementing the proposed action
or any alternative.
(d) Environmental impact statements will be processed from
inception (publication of the notice of intent) to completion
(publication of a final environmental impact statement or a supplement)
according to the Council on Environmental Quality implementing
regulations.
(e) For rulemaking or adjudicatory proceedings, relevant
environmental documents, comments, and responses will be a part of the
administrative record.
(f) For all APHIS activity that is subject to the NEPA process,
relevant environmental documents, comments, and responses will
accompany proposals through the review process.
(g) The APHIS decisionmaker for each NEPA document will consider
the range of alternatives discussed in environmental documents in
reaching their determinations on the merits of proposed actions.
Sec. 372.10 Supplementing environmental impact statements.
Once a decision to supplement an environmental impact statement is
made, a notice of intent will be published. The administrative record
will thereafter be open. The supplemental document will then be
processed in the same fashion (exclusive of scoping) as a draft and a
final statement, unless alternative procedures are approved by CEQ, and
will become part of the administrative record.
Done in Washington, DC, this 26th day of May 1994.
Lonnie J. King,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-13403 Filed 6-2-94; 8:45 am]
BILLING CODE 3410-34-M
