Implementing Regulation for National Environmental Policy Act (NEPA): Environmental Effects of the Department of Veterans Affairs Actions

The legal authorities for 38 CFR part 26 are revised to remove reference to revoked Executive Order 11991 and Executive Order 11514, add reference to Executive Order 14154, and retain citation of NEPA (42 U.S.C. 4321 et seq.).

Section 26.0 addresses the purpose of subpart A by explaining that subpart A provides the procedures by which the VA considers the environmental effects of its actions in carrying out the VA mission. It also explains that subpart A sets forth the scope and terminology of part 26, and the responsibilities for implementing the requirements of the NEPA and part 26.

Existing 38 CFR 26.2 “Applicability and scope” is revised by Sec. 26.11 to clearly state that VA's NEPA regulations encompass all VA offices, administrations, and activities. Existing Sec. 26.1 “Issuance and purpose” is revised by Sec. 26.10 to include VA's objectives in the updated approach to implementing NEPA, by emphasizing early incorporation of NEPA into agency planning, the quality of environmental analysis, and timely decision-making.

Section 26.11, the revised “Applicability and Scope” Sec. , describes the types of actions within VA control and subject to NEPA. Currently, the regulations contain a blanket statement (existing Sec. 26.2) applying the NEPA procedures to VA and its offices. The applicability of NEPA, and the reach of VA's NEPA regulations, will not change, but the new language clarifies the scope and applicability for improved awareness and understanding. These regulations apply only to major Federal actions as defined in section 111(10) of NEPA (42 U.S.C. 4336e(10)), including but not limited to construction and maintenance projects, real property acquisition and disposal, leases and sharing agreements, grants and other funding actions, other facility and asset management decisions, and any other action that meets the statutory definition of a major Federal action and has the potential for a significant environmental impact. Section 26.11 of 38 CFR also identifies activities and decisions that are not major Federal actions and thus not subject to NEPA, for example, entitlements. Entitlements are benefits provided to veterans in which VA's role is purely administrative in nature such as pension benefits. The existing regulations do not distinguish between VA actions that are major Federal actions and those that are not.

Section 26.3, the existing “Definitions” Sec. , defines only the terms “United States” and “VA elements” and provides a generic reference to the definitions in the now-revoked CEQ regulations. Section 26.12 of the interim final regulations references the statutory definitions set forth in section 111 of NEPA (42 U.S.C. 4336e) and provides the full text of definitions only for terms relevant to implementing the VA NEPA procedures that are not defined in the statute.

Existing 38 CFR 26.5 “Responsibilities” assigns roles to only three types of VA staff. By contrast, new Sec. 26.13 “Responsibilities” describes and includes a list of responsibilities for “applicants,” “Senior Agency Official,” and other types of agency staff who participate in the NEPA process.

The interim final rule provides a new Sec. 26.14 for specific “Environmental Practices.” Section 26.14 includes practices for efficiency, capability, similar actions, combining NEPA with other environmental and historic preservation requirements, programmatic NEPA documents, and connected actions. Section 26.14 emphasizes the efficient use of VA resources during the NEPA process by encouraging the use of allowable efficiency approaches. The existing regulations do not include information about these practices. VA is including Sec. 26.14 in the interim final rule to encourage strategic planning and avoid redundant environmental analyses.

As part of this revision, some existing Sec. Sec. and text in the current regulations have been relocated. The following summary provides a guide to where the text originally found in 38 CFR 26.1 through 26.5 has been moved, along with a summary of any revisions to the existing text:

Existing Sec. 26.1 “Issuance and purpose.”

VA revises and moves existing Sec. 26.1 to Sec. 26.10 “Purpose of this part” to provide legal authorities for the revised regulations.

Existing Sec. 26.2 “Applicability and scope.”

The revised and relocated text, in Sec. 26.11 “Applicability and scope,” clarifies the applicability of the interim final rule and describes the types of actions to which the interim final rule does and does not apply.

Existing Sec. 26.3 “Definitions.”

In Sec. 26.12 “Definitions,” moved from existing Sec. 26.3, VA expands the list of definitions to include the full text of terms commonly used within VA during the NEPA process.

Existing Sec. 26.4 “Policy.”

In Sec. 26.14 “Environmental practices,” new practices emphasize strategic environmental planning. Section 26.14 promotes early integration of NEPA into the decision-making process, combining other environmental and historic preservation requirements into the NEPA process for efficiency, and analyzing similar actions together in programmatic analyses for efficient decision-making.

Existing Sec. 26.5 “Responsibilities.”

In Sec. 26.13, moved from existing Sec. 26.5, the interim final rule expands the current list of responsible parties to clarify the roles of VA staff participating in the NEPA process. VA is also including two new NEPA oversight roles to reflect current practice within VA: the NEPA Implementation Officer and the Senior Agency Official. The interim final rule also authorizes chains of delegation and promotes coordination.

As explained in Sec. 26.20, subpart B outlines the requirements and process for NEPA compliance to inform VA decision-making. Section 26.21 provides context by explaining how VA will integrate NEPA with VA planning. Remaining Sec. Sec. 26.22 through 26.73 lay out NEPA analysis options and NEPA implementation methods specific to those options.

Section 26.7(b) of the existing regulations indicates the time at which VA must complete relevant environmental analyses for leases, grants, policies, legislative proposals, miscellaneous and non- recurring delegated projects, land acquisitions, and emergency circumstances. However, these activities no longer reflect the full scope of VA activities and the list of activities did not provide for decisions related to ongoing or new operations. Section 26.21 of the interim final rule replaces the existing list of activities with procedures for activities now common to VA, including acquisition activities and construction projects. VA is combining and expanding upon existing Sec. Sec. 26.6, 26.7, and 26.9 in the revised subpart B Sec. Sec. . Acquisitions and construction projects represent the majority of project types that require NEPA analyses within VA. VA is including these projects in Sec. 26.21 “Integrating NEPA with VA planning” to standardize NEPA analyses across VA and clarify the proper timing of the NEPA process together with VA decision-making for these activities. VA also adds an emphasis in Sec. 26.21(a)(1) on beginning the NEPA process at the earliest reasonable time. Additionally, VA added a requirement in Sec. 26.21(a)(2) for relevant NEPA documents, comments, and responses to accompany the proposal through existing agency review processes.

The interim final rule includes a new Sec. 26.22 “Determining the appropriate level of NEPA review,” which explains VA's process for choosing the appropriate level of NEPA review: CATEX, EA, or EIS. The existing regulations do not explain the process for selecting the appropriate level of review, which has made it difficult for VA decision-makers to know which type of analysis is appropriate for a given project. VA is adding this overview to help VA officials and to standardize the process for determining the appropriate level of NEPA review across VA.

The interim final rule contains specific requirements for CATEXs in Sec. Sec. 26.30-26.32. Section 26.6 of the existing regulations includes a list of actions that typically require CATEXs, EAs, and EISs. Sections 26.30 and 26.32 revise the list of VA CATEXs and update procedures for their application for consistent documentation and use throughout the agency.

Within Sec. 26.7(b) of the existing VA NEPA regulations, there is a list of “major decision points” when VA must complete a relevant environmental analysis for a proposed action. However, the existing VA regulations do not clearly state what to consider and prepare at each major decision point and the list is not comprehensive for VA activities. To clarify when VA must complete environmental analysis, VA is specifying the requirements in Sec. Sec. 26.40 and 26.41 “Requirements for EAs” and “Requirements for EISs,” respectively. Requirements for time limits and page limits are included for each analysis type. Additionally, Sec. 26.73 of the interim final rule includes direction on reevaluating and supplementing EAs and EISs.

Through Sec. 26.42 of the interim final rule, VA is also providing procedures for public engagement. The existing regulations do not include information about how VA will reach out to the public. VA recognizes open discussion at the outset of the NEPA process can alleviate public concerns, where relevant. VA is including Sec. 26.42 “Public engagement procedures” to standardize procedures for providing notice of intent and scoping. Section 26.42(a) also clarifies that the NEPA process for a CATEX does not exclude public engagement.

This interim final rule includes Sec. 26.50 “Mitigation and monitoring.” Section 26.50 explains the purpose of mitigation measures and provides examples of mitigation approaches to help VA decision makers formulate and apply mitigation measures. VA is requiring mitigation and monitoring costs to be included in project budgets when the agency has such discretion. VA will identify monitoring and mitigation requirements in the NEPA decision document. The interim final rule also provides that VA may provide for required mitigation or monitoring where VA has such discretion. While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation.

In Sec. 26.60 “The decision: documentation and initiation of action” this interim final rule codifies conditions for when VA can take action evaluated in a NEPA document. Section 26.60 includes a discussion of the required elements of a decision document, such as a finding of no significant impact or record of decision. The existing regulations do not explain when VA may proceed with a proposed action. The revised regulations ensure VA does not violate NEPA by inadvertently committing resources to a proposed action prior to the conclusion of the NEPA process (42 U.S.C. 4332(C)(v)).

VA is adding Sec. 26.70 “Programmatic NEPA documents,” Sec. 26.71 “Reliance on existing NEPA documents,” Sec. 26.72 “Combining documents,” and Sec. 26.73 “Supplemental analyses” to encourage their use throughout VA. These efficiency approaches are not encouraged within the existing regulations. As a result, these approaches are used infrequently in VA and are generally not well understood. For example, programmatic analyses allow VA to use NEPA for broad actions such as the development of master plans at VA facilities. Analyzing broad actions programmatically helps to capture all potential effects while simplifying and focusing tiered analyses for individual projects and improving the efficiency of the NEPA process for these projects. VA may rely on another Federal agency's NEPA document if an action analyzed in NEPA document prepared by another Federal agency and VA's action are substantially the same. Direction on how VA may rely on and use an EIS, EA, or CATEX determination have been incorporated into these regulations. VA uses supplemental analyses when VA proposes changes to a previously analyzed action or when there is substantial new information or circumstances relevant to environmental concerns. Supplemental analyses allow VA to add to an existing NEPA analysis instead of redoing the entire NEPA analysis. Thus, VA is adding Sec. 26.73 “Supplemental analyses” to additionally clarify how the administrative record should document a supplemental analysis. Sections 26.70 through 26.73 will help VA save resources by reducing redundant analyses.

As part of the revision, some text in the current regulations has been relocated to different Sec. Sec. . The following summary provides a guide to these

changes to existing Sec. Sec. 26.6, 26.7, and 26.9:

VA is expanding existing Sec. 26.6 “Environmental documents.” into five new Sec. Sec. : Sec. 26.22 “Determining the appropriate level of NEPA review,” Sec. 26.30 “Categorical exclusions,” Sec. 26.32 “List of VA categorical exclusions,” Sec. 26.40 “Requirements for EAs,” and Sec. 26.40 “Requirements for EISs.” The interim final rule also adds Sec. 26.31 “Adoption and application of CATEXs from another agency's NEPA procedures.”

VA moved existing Sec. 26.7 “VA environmental decision making and documents.” to new Sec. 26.21 “Integrating NEPA with VA planning” and Sec. 26.22 “Determining the appropriate level of NEPA review.” In the interim final rule, VA reframes the discussion of environmental decision-making in the context of seeking and applying efficiencies, and focusing on reasonably foreseeable environmental effects specific to that action.

Existing Sec. 26.9 addresses “Information on and public engagement in VA environmental process.” The interim final rule codifies public engagement procedures within VA by adding Sec. 26.42 “Public engagement procedures” to provide consistency with and for flexibilities in accordance with current statutory requirements.

As explained in Sec. 26.80, subpart C outlines the relationship between VA and Federal, Tribal, State, and local environmental agencies; identifies the role of VA in actions initiated by other Federal agencies and the role other Federal agencies may play in VA actions; and describes the role of applicants in VA's NEPA process.

Section 26.8 of the existing regulations identifies several types of projects with third-party involvement that may require NEPA review and generally states in existing Sec. 26.9 that VA will include other parties in the preparation of environmental documents to the extent practicable, but does not explain how or what type of involvement should occur. Sections 26.81 through 26.84 discuss third parties in greater detail, including relationships with third parties; State, Tribal, and local requirements; and the role of applicants.

Subpart C includes a new Sec. 26.81 “Relationships with third parties.” New Sec. 26.81 discusses how VA will participate as a lead, joint-lead, or cooperating agency when Tribes and Federal, State, and local agencies are involved in a proposed action. Section 26.5 of the existing regulations assigns responsibility for picking the lead VA element, but there are no procedures for determining the level of participation of VA, Tribes, and other agencies in a shared action. Section 26.81(c) of the interim final rule changes the responsibility for determining VA's lead agency designation to the Senior Agency Official. The existing regulations also do not discuss joint lead agencies or cooperating agencies. New Sec. 26.81 will help VA to improve coordination with Tribes and other agencies.

Section 26.82 “State, Tribal, and local requirements” addresses two issues. First, VA is including new Sec. 26.82 to harmonize VA actions with State, Tribal, and local compliance activities to the extent practicable. State, Tribal, and local agencies may have programs, plans, and procedures that impact VA actions; or conversely, VA actions may impact the programs, plans, and procedures of State, Tribal, and local agencies. Secondly, new Sec. 26.82 avoids duplication of NEPA analyses when similar environmental analyses and documents as those needed for a VA action exist or are necessary for State, Tribal, and local environmental and historic preservation requirements. VA does not have procedures for coordinating environmental analyses with other agencies in its existing regulations. Section 26.82 will help VA officials coordinate with their State, Tribal, and local counterparts and improve efficiency.

Tribes are identified separately in Sec. 26.82 and throughout 38 CFR part 26 because of their sovereign status, the government-to- government relationship between Tribes and the Federal government, and the Federal-Tribal trust relationship. The Federal government must respect Tribal sovereignty when its activities may impact Tribal resources and engage with Tribes in a government-to-government relationship. The Federal government also has a trust responsibility to Tribes that includes the protection of Tribal sovereignty, and a legal obligation arises when the Federal government has control or deprives a Tribe of the ability to manage a Tribal resource. This legal obligation will require the Federal government to act in good faith toward a Tribe, Tribal property, and Tribal rights. VA recognizes the special status of Tribes and will interact with Tribes appropriately for VA activities that may impact Tribal resources.

VA is adding Sec. 26.83 “Applicants for Federal assistance” in the interim final rule because an applicant's participation in the NEPA process is critical to the completion of an EA or EIS for certain Federal assistance actions, and the existing regulations do not discuss the role of applicants in the NEPA process. To complete the NEPA process, VA needs the applicant's information concerning environmental resources at the site(s) of the proposed action. Applicants may prepare the EA or EIS and perform subsequent mitigation and monitoring. The revised regulations will provide information to applicants about their role in the NEPA process for grants and discretionary benefits, and actions the applicants may take to develop preliminary plans in accordance with NEPA.

VA is adding Sec. 26.84 “Non-compliance by applicants” to codify that VA will promptly notify applicants of any non-compliance with the NEPA process. VA must ensure applicants comply with NEPA because the ultimate responsibility for compliance falls upon VA.

D. Subpart D: Unique Procedures: Emergencies, Protected Information, and International Actions

As explained in Sec. 26.90, subpart D provides the VA procedures for complying with NEPA during emergencies, how VA will handle sensitive or classified information, and how VA will consider the international effects of VA actions. New subpart D includes NEPA procedures for emergency actions in Sec. 26.91, actions with sensitive or classified information in Sec. 26.92, and international actions or effects in Sec. 26.93. The interim final rule groups Sec. Sec. 26.91 through 26.93 together because actions taken in these circumstances do not follow the typical NEPA process. The existing regulations do not provide NEPA procedures for these actions. VA is adding subpart D to codify its procedures for developing alternative arrangements in emergencies, protecting sensitive or classified information, and considering international actions or effects to the extent practicable.

Section 26.7 of the existing regulations refers to the now-revoked CEQ regulations for developing alternative arrangements in an emergency, but it does not provide specific guidance on how to determine when alternative arrangements are necessary. New Sec. 26.91 “Emergencies” adds procedures to determine when to develop alternative arrangements. VA is adding Sec. 26.91 to make it easier for VA officials to include NEPA in their response to emergencies.

New Sec. 26.92 “Sensitive or classified information” provides VA with policy and documentation requirements for protecting and documenting sensitive

and classified information submitted during the NEPA process. VA does not address sensitive or classified information in the existing VA procedures. New Sec. 26.92 codifies its practice of protecting individual veterans' information from dissemination to the public or non-VA entities, consistent with the Freedom of Information Act (5 U.S.C. 552). VA will also protect sensitive and classified information in the interest of national security.

The new regulations include 38 CFR 26.93 “International actions or effects” to clarify what VA should consider with respect to environmental effects overseas. The existing regulations do not discuss international actions, which are actions taken outside of the United States. Extraterritorial actions with effects located entirely outside of the jurisdiction of the United States are excluded from the statutory definition of “major Federal action” and thus not subject to NEPA. 42 U.S.C. 4336e(10)(B). For such extraterritorial actions, the governing authority as cited in the regulations is Executive Order 12114, Environmental Effects Abroad of Major Federal Actions. Executive Order 12114 does not rely upon NEPA for its authority but does further the purpose of NEPA and provides guidance for VA on how to consider effects for its overseas operations.

1. Field exercises and training.

2. Field studies and surveys.

3. Special events, ceremonies, and related activities.

4. Waste management.

5. Transportation. Housing Operations

6. Provision of housing. Acquisition or Disposition of Land, Buildings, or Space

7. Acquisition of space within an existing structure.

8. Acquisition of land and/or buildings.

9. Out-leases to third party tenants.

10. Agreements for use of VA-owned space.

11. Disposal of real property. Services and Procurement

12. Medical-related services.

13. Research.

14. Laundry and food services.

15. Procurement, lease, transport, storage, and disposition of supplies, materials, and equipment. Cemetery Operations

16. Interment ceremony services.

17. Soil excavation and replacement for interments.

18. Cemetery land development. Electronics

19. Communication systems. New Construction and Related Activities

20. New construction.

21. Interior renovation.

22. Installing new or replacing or relocating onsite existing building components, site elements, utilities, and equipment.

23. Repair, renovation, and maintenance.

24. Demolition.

25. Environmental remediation and abatement. Energy

26. Solar and wind energy.

27. Retro commissioning.

28. Conservation and energy efficiency measures.

As appropriate, the activities described by VA's existing 13 CATEXs are incorporated into the replacement set of 28 CATEXs. VA found it to be more efficient to replace the existing CATEXs with a new list to add specificity and clarity and provide VA NEPA practitioners with better guidance on what qualifies for a CATEX. VA has found the brevity of the current CATEX descriptions to be difficult to appropriately apply. The revised list of CATEXs articulates with more specificity the types of activities to categorically exclude under each CATEX and adds appropriate limiting factors where needed.

The existing VA regulations do not identify documentation requirements for CATEXs. The revised regulations identify which CATEXs require documentation of the CATEX for each proposed action, prepared in accordance with Sec. 26.30 of the interim final rule.

The revised CATEX list is organized categorically by the type of proposed action recognizable to VA staff across VA programs. These new groupings will help staff efficiently identify the CATEX applicable to their proposed action. The following paragraphs describe these CATEX groups: VA-Wide Operations

The interim final rule provides five CATEXs for actions common to multiple VA administrations or offices including field exercises and training; field studies and surveys; special events, ceremonies, and related activities; waste management; and transportation. Two CATEXs in the current regulations address some aspects of these actions but required definition to clearly describe the types of actions and prevent misapplication. Housing Operations

The interim final rule provides one CATEX in this category related to the provision of housing to veterans or other eligible persons. There are no CATEXs in the current regulations that specifically address housing operations. Acquisition or Disposition of Land, Buildings, or Space

The interim final rule lists five CATEXs by type of proposed action to address those acquisition and disposition activities that have been demonstrated historically to have no significant environmental impacts. These are acquisition of space within an existing structure, acquisition of land and/or buildings with no near-term change in the general type and intensity of use, out-leases of buildings and/or land to third party tenants, agreements for use of VA-owned space, and disposal of real property that conforms to the General Services Administration guidance and meets applicable environmental and historic preservation requirements. The current regulations include only a single broad CATEX related to some real property type proposed actions. Services and Procurement

The interim final rule provides four CATEXs specific to services and procurement, including medical-related services; research; laundry and food services; and procurement, lease, transport, storage, and disposition of supplies, materials, and equipment. The current regulations include two broad

CATEXs, one for procurement for goods and services for routine facility operations and support and one for actions supporting normal operation. Cemetery Operations

The interim final rule provides three CATEXs to capture routine operations unique to VA's cemetery system. These are interment ceremony services, soil excavation and replacement for interments, and cemetery land development within the boundaries of an existing cemetery. There is only one cemetery-related CATEX in the existing regulations, which references land development, in addition to a broad CATEX for actions supporting normal operation. Electronics

The interim final rule provides one CATEX for communication systems and ancillary equipment to clarify the types of such projects eligible for exclusion. There are two CATEXs in the current regulations that are related but not specific to such projects, resulting in inconsistent application. New Construction and Related Activities

The interim final rule provides six CATEXs in this category. These CATEXs provide greater specificity to the types of activities allowable and are organized according to the most common types of construction activities within VA. The CATEXs are new construction on VA property, or property acquisition plus new construction with a building footprint that does not exceed 75,000 square feet or development of up to 20 acres of interment space, within certain limitations; interior renovation; installation, replacement, and relocation of onsite building components, site elements, site utilities, equipment, and cemetery elements; repair, renovation, and maintenance at VA facilities; demolition of structures in accordance with applicable environmental and historic preservation requirements; and environmental remediation and abatement. There are five CATEXs in the current regulations related to construction, but their grouping and definition require clarification to avoid misapplication. Energy

The number of similar VA actions related to energy projects has increased dramatically, pointing to the need for development of new CATEXs to incorporate VA's experience with energy projects to simplify review of these actions where appropriate. The interim final rule adds three CATEXs for proposed actions related to solar and wind energy, retro commissioning, and conservation measures. There are no CATEXs in the current regulations that fully address energy projects.

This discussion correlates the revised list of CATEXs with existing CATEXs, for which it provides the existing regulatory language. 1. Existing 38 CFR 26.6(b)(1)(i) Through (iii)

VA will remove the following CATEXs in the existing regulations and replace them with new Sec. 26.32(a)(6)(i), (7)(iii), (7)(iv), and (8)(ii), covering related activities:

Existing Sec. 26.6(b)(1)(i) Repair, replacement, and new installation of primary or secondary electrical distribution systems.

Existing Sec. 26.6(b)(1)(ii) Repair, replacement, and new installation of components such as windows, doors, roofs; and site elements such as sidewalks, patios, fences, retaining walls, curbs, water distribution lines, and sewer lines which involve work totally within VA property boundaries.

Existing Sec. 26.6(b)(1)(iii) Routine VA grounds and facility maintenance activities.

The existing CATEXs Sec. 26.6(b)(1)(i) and (ii) group repair, replacement, and installation activities together for electrical distribution systems, and separately group repair, replacement, and installation activities for building and site elements. Existing CATEX Sec. 26.6(b)(1)(iii) provides for grounds and facility maintenance activities. VA reorganizes these groupings, moving installation and replacement under CATEX 22, repair and maintenance under CATEX 23, alarms and communications equipment under CATEX 19, and retro commissioning activities under CATEX 27. Note retro commissioning is the application of the commissioning process to an existing building that has not previously undergone the commissioning process to reduce reactive repairs, improve building systems performance, and maintain energy efficiency in an existing building. This regrouping will eliminate potential overlapping applicability in the existing list and clearly distinguish between activities that involve putting new components onto VA property as installation or replacement; activities that involve fixing minor components of VA properties; installation or modification of communications equipment; and activities to analyze, diagnose, repair, and maintain building systems.

CATEXs 22 and 23 provide examples (not all-inclusive) to illustrate the type of installation and replacement, and repair and maintenance activities allowable under the respective CATEX.

Application of CATEX 22 requires documentation of the CATEX for each proposed action. Application of CATEX 19 requires documentation of the CATEX for ground-disturbing actions. Application of CATEXs 23 and 27 does not require documentation of the CATEX for each proposed action.

The substantiation record cites application of existing CATEXs (i), (ii), and (iii) to demonstrate that VA has previously found these activities do not generate significant effects and categorically excluded the actions from further NEPA review. To further support CATEX 22, the substantiation record provides EAs of activities similar to installation and replacement to demonstrate its experience with these activities and its findings of no significant impact. VA also includes the professional opinion of VA staff to support CATEX 27. The substantiation record also includes benchmarking of a wide variety of other agencies' CATEXs to demonstrate how other agencies have treated similar activities. Agency benchmarking examples include CATEXs from the Department of Agriculture, Air Force, Army, Department of Energy, Environmental Protection Agency, Federal Highway Administration, U.S. Forest Service, General Services Administration, Department of Homeland Security, Department of the Interior, and Navy. 2. Existing 38 CFR 26.6(b)(1)(iv)

VA is removing the following CATEX in the existing regulations and replacing it with new Sec. 26.32(a)(4)(iv), covering related activities:

Existing Sec. 26.6(b)(1)(iv) Procurement activities for goods and services for routing [sic] facility operations maintenance and support.

The existing CATEX (iv) addresses procurement activities for goods and services for routine facility operations maintenance and support. VA is issuing one new CATEX to replace existing CATEX (iv). The revision will allow VA practitioners to evaluate the applicability of the CATEX more specifically to a proposed action. Under CATEX 15, VA clarified the CATEX requires that procurements must comply with Federal, State, and local requirements and be purchased in accordance with applicable policies and agency procurement requirements.

Application of CATEX 15 does not require documentation of the CATEX for each proposed action.

The substantiation record cites to VA's application of existing CATEX (iv), which encompasses services and goods for operations maintenance and support as evidence of VA's previous experience with these activities for which it has previously found procurement of goods, including medical supplies and other materials, and services to include a list of other agency CATEXs covering similar types of activities; CATEX 18 includes CATEXs from the Navy and the Postal Service; and CATEX 20 includes CATEXs from the Air Force, Army, Bureau of Prisons, Department of Homeland Security, Department of the Interior, Navy, and Postal Service. VA also includes the professional opinion of VA staff to support CATEX 17. 3. Existing 38 CFR 26.6(b)(1)(viii)

VA is removing the following CATEX in the existing regulations and replacing it with aspects of new Sec. 26.32(a)(1)(i), (iii), (iv), (v); (2)(i); (4)(i), (ii), (iii), (iv); and (6)(i), covering similar activities:

Existing Sec. 26.6(b)(1)(viii) Actions which involve support or ancillary appurtenances for normal operation.

VA currently uses existing CATEX (viii) to cover a variety of activities that are necessary to support its primary operational focus of supporting veterans. Activities covered by existing CATEX (viii) include those proposed for provision of field exercises and training, special events and ceremonies, waste management, transportation, housing, medical-related services, aspects of research, laundry and food services, procurement, and communication systems. Because the language of existing CATEX (viii) is overly broad, VA staff and the public have had difficulty understanding what the existing language covers, resulting in inconsistent application of the CATEX. The CATEXs are intended to provide greater specificity and consistency in application of CATEXs throughout VA for these ancillary activities.

Application of CATEXs 1, 3, 4, 5, 6, 12, 13, 14, and 15 does not require documentation of the CATEX for each proposed action. Application of CATEX 19 requires documentation for ground-disturbing activities.

The substantiation record for the CATEXs cites to existing CATEX (viii), which VA currently uses to categorically exclude these activities from further NEPA review. The substantiation record also provides a number of similar CATEXs of other agencies to benchmark how other agencies have similarly found these activities to not have the potential for significant impacts. These other agencies include the Air Force, Army, Bureau of Prisons, Department of Energy, Environmental Protection Agency, Department of Homeland Security, Department of Housing and Urban Development, Department of the Interior, Department of Justice, National Aeronautics and Space Administration, Navy, and Nuclear Regulatory Commission. VA also includes the professional opinion of VA staff to support CATEXs 1, 4, 5, 6, 12, 13, and 14. 4. Existing 38 CFR 26.6(b)(1)(ix)

VA is removing the following CATEX in the existing regulations and replacing it with new Sec. 26.32(a)(3)(i), (iii), and (iv) covering similar activities:

Existing Sec. 26.6(b)(1)(ix) Leases, licenses, permits, and easements.

VA currently uses existing CATEX (ix) to categorically exclude any activity related to obtaining (or extending or offering) leases, licenses, permits, and easements VA have no significant impact. The substantiation record also benchmarks other agencies' CATEXs covering procurement of goods and services broadly, including agencies such as the Army, Department of Energy, and Nuclear Regulatory Commission. 5. Existing 38 CFR 26.6(b)(1)(v)

VA is removing the following CATEX in the existing regulations and replacing it with new Sec. 26.32(a)(7)(i), (ii), and (vi), covering related activities:

Existing Sec. 26.6(b)(1)(v) Interior construction or renovation.

VA currently uses the existing Sec. 26.6(b)(1)(v) for all interior construction and renovation work that it knows will not generate a significant impact. However, the existing CATEX neither provides any limiting factors nor clearly articulates the type of activities covered within the broad range of interior construction or renovation actions. To improve the application of NEPA for these activities and provide better guidance to VA practitioners, VA provides CATEXs 20, 21, and 25, which together cover activities previously categorically excluded under the existing CATEX.

CATEX 21 clarifies that the scope of actions of “interior renovation” refers to “renovation, alteration, restoration, or rehabilitation projects” and removes the word “construction,” which is now covered under CATEX 20. CATEX 25 includes, along with other types of remediation, asbestos and lead-based paint abatement, which are routine activities for VA during interior construction and renovation projects that VA knows through experience do not generate significant impacts when following all applicable environmental and historic preservation requirements. The additional specificity added through CATEXs 21 and 25, and the separation of construction actions included in CATEX 20, will aid VA practitioners in appropriately and consistently using these CATEXs across all VA facilities.

All VA CATEXs require VA to conduct the action in accordance with applicable environmental and historic preservation requirements.

Application of CATEX 20 requires documentation of the CATEX for each proposed action. Application of CATEXs 21 and 25 does not require documentation of the CATEX for each proposed action.

As VA previously used existing CATEX (v) to cover these activities, the substantiation record lists that existing CATEX for reference to support CATEX 21. VA is also supporting the promulgation of the CATEXs by including EAs in the substantiation record to demonstrate evidence of findings of no significant impact for renovation activities. For CATEX 25, VA cites to existing CATEX (v) to demonstrate its previous experience with remediation and asbestos and lead-based paint abatement activities and its decision to categorically exclude those activities from further NEPA review. VA also states that other types of environmental remediation actions that will be eligible for CATEX 25 would not have significant environmental impacts when conducted in accordance with environmental and historic preservation requirements, as their sole objective is to improve existing environmental conditions. The substantiation record also includes EAs for which the proposed action included abatement or remediation activities, and other agency CATEXs that benchmark similar activities that have been found to not generate significant impacts, including the Air Force, Army, Defense Logistics Agency, Department of Energy, Environmental Protection Agency, Federal Highway Administration, General Services Administration, Department of Homeland Security, Department of the Interior, Navy, and Postal Service. 6. Existing 38 CFR 26.6(b)(1)(vi and vii)

VA is removing the following CATEXs in the existing regulations and replacing them with aspects of new Sec. 26.32(a)(5)(ii), (iii), and (7)(i), covering similar activities:

Existing Sec. 26.6(b)(1)(vi) New construction of 75,000 gross square feet or less.

Existing Sec. 26.6(b)(1)(vii) Development of 20 acres of land or less within an existing cemetery, or development on acquired land of five acres or less.

In the new CATEXs, VA clarifies the parameters around when new construction and development activities may be categorically excluded. Existing CATEXs (vi) and (vii) provide square footage and acreage limitations only, which do not address the necessary limiting factors that VA historically considers when determining whether to categorically exclude new construction activities from further NEPA review, based on agency experience and understanding of what activities may cause significant impacts. CATEX 18 provides for land development within an existing cemetery when it complies with applicable environmental and historic preservation requirements. CATEX 17 provides for soil excavation and replacement for interments in pre-placed crypts and direct burials in existing cemeteries. CATEX 20 applies to construction supporting any of VA's missions (veterans' health care, veterans' benefits, national cemeteries, and preparedness) and requires the project, whether on existing or newly acquired VA property or through a build-to-suit lease, to not exceed the capacity of existing infrastructure and comply with applicable environmental and historic preservation requirements. These details will enable VA practitioners to more easily determine whether to apply a CATEX to new construction activities.

Application of CATEXs 18 and 20 requires documentation of the CATEX for each proposed action. Application of CATEX 17 does not require documentation of the CATEX for each proposed action.

For CATEXs 18 and 20, the substantiation record cites to application of existing CATEXs (vi) and (vii), which VA currently use to categorically exclude new construction activities. VA also provides support in the substantiation record through EAs of similar activities to demonstrate the scope of the CATEXs aligns with its findings of the types of new construction activities that will not generate significant impacts, from onsite construction at hospitals and other medical facilities. The substantiation record also knows will not generate significant impacts. However, existing CATEX (ix) lacks descriptive language and limiting factors to guide VA practitioners in its application. In review, VA is establishing CATEXs 7, 9, and 10 to better define these types of activities and requiring the activity to result in no change in the general type of use and no more than minimal occupancy level changes. In CATEX 7, VA is acquiring space within an existing structure from a third party. In CATEX 9, VA is offering out- leases of building and/or land to third party tenants. In CATEX 10, VA is offering Federal or State agencies or entities an agreement for sharing space and resources.

Application of CATEXs 7, 9, and 10 requires documentation of the CATEX for each proposed action.

As VA previously categorically excluded all related leasing, licensing, permitting, and easement activities that it knew through experience would not generate significant impacts, existing CATEX (ix) is the primary support for CATEXs 7, 9, and 10. The substantiation record also includes a number of EAs for CATEX 9 as further substantiation. The substantiation record also includes benchmarking of similar CATEXs from other Federal agencies, including the Air Force, Army, Bureau of Land Management, Department of Energy, Environmental Protection Agency, Federal Aviation Administration, Department of Homeland Security, General Services Administration, and National Aeronautics and Space Administration. 7. Existing 38 CFR 26.6(b)(1)(x)

VA is removing the following CATEX in the existing regulations:

Existing Sec. 26.6(b)(1)(x) Reduction in force resulting from workload adjustments, reduced personnel or funding levels, skill imbalances, or other similar causes.

Section 106 of the NEPA statute as revised states that an agency is not required to prepare an environmental document if “the proposed agency action is a nondiscretionary action with respect to which such agency does not have authority to take environmental factors into consideration in determining whether to take the proposed action”, and section 111 of the NEPA statute as revised excludes “activities or decisions that are non-discretionary and made in accordance with the agency's statutory authority,” as well as ones with no or minimal Federal funding, from the definition of “major Federal action”. 42 U.S.C. 4336(a)(4), 4336e(10)(B)(vii). Therefore, such actions are excluded from the requirement for NEPA review and VA does not include this CATEX in the interim final rule. 8. Existing 38 CFR 26.6(b)(1)(xi)

VA is removing the following CATEX in the existing regulations and replacing it with new 38 CFR 26.32(a)(1)(ii), covering similar activities:

Existing Sec. 26.6(b)(1)(xi) VA policies, actions and studies which do not significantly affect the quality of the human environment.

VA is replacing existing CATEX (xi) with CATEX 2. The existing CATEX (xi) is written broadly and does not specify what types of policies, actions, studies, and guidance are major Federal actions subject to NEPA review and that fall within the scope of the CATEX. CATEX 2 will clarify this CATEX's applicability for VA practitioners. The new CATEX specific to field studies and surveys clarifies the types of activities that are eligible for this CATEX and promotes consistency in NEPA reviews across VA.

For CATEX 2, the substantiation record cites to existing CATEX (xi), which VA currently uses to CATEX these types of actions, and benchmarks to other agency CATEXs. Other agency CATEXs similar to CATEX 2 and included in the substantiation record are from the Army, Department of Energy, General Services Administration, Department of Homeland Security, and National Aeronautics and Space Administration.

Application of CATEX 2 does not require documentation of the CATEX for each proposed action. 9. Existing 38 CFR 26.6(b)(1)(xii) and (xiii)

VA is eliminating the following existing VA CATEXs:

Existing Sec. 26.6(b)(1)(xii) Preparation of regulations, directives, manuals or other guidance that implement, but do not substantially change, the regulations, directives, manuals, or other guidance of higher organizational levels or another Federal agency.

Existing Sec. 26.6(b)(1)(xiii) Actions, activities, or programs that do not require expenditure of Federal funds.

VA rarely, if ever, applied CATEX (xii) due to its ill-defined nature, and it is not being retained. Regarding existing CATEX (xiii), section 111 of the NEPA statute as revised excludes actions with no or minimal Federal funding from the definition of “major Federal action”. 42 U.S.C. 4336e(10)(B)(i)(I). Therefore, such actions are excluded from the requirement for NEPA review and VA does not include these CATEXs in the interim final rule.

The following CATEXs are for activities not previously clearly categorically excluded under the existing VA CATEX list in 38 CFR part 26:

38 CFR 26.32(a)(3)(ii) CATEX 8: Acquisition of land and/or buildings.

The substantiation record includes some aspects of existing VA CATEXs (vi), (vii), and (ix); and a number of EAs demonstrating that VA experience in acquisitions of land and/or buildings does not have the potential for significant impacts when there is no near-term proposed change in the general type of use or occupancy level. Also provided in the substantiation record are similar CATEXs from other agencies to benchmark how other agencies also found similar activities to not have the potential for significant impacts, including the Department of Energy, Environmental Protection Agency, and General Services Administration. Application of CATEX 8 requires documentation of the CATEX for each proposed action.

38 CFR 26.32(a)(3)(v) CATEX 11: Disposal of real property.

The substantiation record for CATEX 11 includes an EA demonstrating VA experience conducting these activities through either the transfer or sale of VA-owned property to other entities. The substantiation record also provides benchmarks of similar CATEXs of other Federal agencies including the Air Force, Army, Bureau of Land Management, Department of Energy, Environmental Protection Agency, Federal Highway Administration, and General Services Administration. Application of CATEX 11 requires documentation of the CATEX for each proposed action.

38 CFR 26.32(a)(4)(ii) CATEX 13: Research.

The substantiation record includes some aspects of existing VA CATEX (viii), and a number of similar CATEXs from other agencies to benchmark how other agencies also found research actions similar to those at VA where applicable environmental and safety requirements are met. These other agency CATEXs include those from the Department of Agriculture, Air Force, Army, Department of Energy, Environmental Protection Agency, Department of Homeland Security, National Aeronautics and Space Administration, and Navy. VA also provides the professional opinion of VA staff with experience conducting this activity to support CATEX 13. Application of CATEX 13 does not require documentation of the CATEX for each proposed action.

38 CFR 26.32(a)(5)(i) CATEX 16: Interment ceremony services.

Other agencies with memorial services including the Army, the National Aeronautics and Space Administration, and the Navy have found that ceremonies for memorial and interment do not have the potential for significant impacts. VA has included references to these other agencies' CATEXs for similar activities to benchmark its own CATEX. VA also includes the professional opinion of VA staff with experience conducting these activities to support CATEX 16. Application of CATEX 16 does not require documentation of the CATEX for each proposed action.

38 CFR 26.32(a)(7)(v) CATEX 24: Demolition.

For CATEX 24, the substantiation record includes several EAs to demonstrate VA's consistent findings of no significant impact for demolition of structures. Additionally, the substantiation record provides references to similar CATEXs at other agencies to benchmark those other agencies' determinations that demolition activities have no potential for significant impacts with completion of National Historic Preservation Act consultation, including the Army, Department of Energy, and Department of Homeland Security. Application of CATEX 24 requires documentation of the CATEX for each proposed action.

38 CFR 26.32(a)(8)(i) CATEX 26: Solar and wind energy.

The substantiation record includes aspects of existing VA CATEX (ii) and EAs for the installation of solar photovoltaic systems and wind turbines on existing non-historic structures to substantiate the CATEX. These EAs demonstrate the consistent finding of no significant impact for installation of solar photovoltaic systems and wind turbines by VA on structures such as buildings or carports that have no historical significance. The substantiation record also includes two references to Department of Energy CATEXs covering similar actions to benchmark the CATEX. Application of CATEX 26 requires documentation of the CATEX for each proposed action.

38 CFR 26.32(a)(8)(iii) CATEX 28: Conservation and energy efficiency measures.

For CATEX 28, the substantiation record includes aspects of existing CATEX (v) and EAs VA has conducted that included conservation and energy efficiency improvements in its facilities as part of a variety of larger actions including upgrade, renovation, and new construction in different parts of the country and demonstrates the consistent finding of no significant impact. The substantiation record also benchmarks other agencies' CATEXs for similar actions by the Department of Energy and Federal Transit Administration. Application of CATEX 28 requires documentation of the CATEX for proposed actions involving ground source heat pump and combined heat and power systems, power storage, and small-scale research and development for energy efficiency and conservation.

Executive Orders 12866, 13563, and 14192

VA examined the impact of this rulemaking as required by Executive Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. This interim final rule is a deregulatory action under Executive Order 14192.

Economic Impact: VA expects minor cost savings that cannot be quantified. VA does not have specific data to assess the economic impact of this interim final rule because such data do not exist and would be difficult to develop. This interim final rule modifies 38 CFR part 26. VA anticipates that the changes in this interim final rule will enable projects to move more expeditiously through the Federal environmental review process. It will reduce the preparation of extraneous environmental documentation and analysis not needed for compliance with NEPA while still ensuring that projects are built in an environmentally responsible manner and consistent with Federal law.

The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without prior opportunity for public comment.

VA's basis for issuing an interim final rule is the Administrative Procedure Act (APA) exception for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”. 5 U.S.C. 553(b)(A). VA's regulations implementing NEPA's procedural requirements may be characterized as rules of agency procedure and practice. NEPA itself is 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 1511). “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 . . . was reasonably explained”. Seven County, 145 S. Ct. at 1511. VA's regulations implementing NEPA do not dictate what outcomes such consideration must produce, nor do they impose binding legal obligations on private citizens. Rather, they prescribe the procedure by which VA should conduct its NEPA reviews: for example, by detailing the structure of EISs, specifying procedural requirements, and directing the timing of public comment periods. These are procedural provisions, not substantive environmental ones. Indeed, it is hard to see how they could be otherwise, since the Supreme Court has recently repeatedly emphasized that “NEPA is a purely procedural statute”; “NEPA is purely procedural. . . . NEPA does not mandate particular results, but simply prescribes the necessary process for an agency's environmental review of a project” (internal quotation omitted); “NEPA is a purely procedural statute”; `NEPA is properly understood as “a modest procedural requirement” '; “NEPA's status as a purely procedural statute”; and “Simply stated, NEPA is a procedural cross-check, not a substantive roadblock”. Seven County, 145 S. Ct. at 1507, 1510, 1511, 1513, 1514. Procedures for implementing a purely procedural statute must be, by their nature, procedural rules. Thus, they cannot be legislative rules; as such, they do not need to be promulgated via notice-and-comment rulemaking.

Even if VA's regulations were not procedural rules, they may be characterized as interpretative rules or general statements of policy. See 5 U.S.C. 553(b)(A). An interpretative rule provides an interpretation of a statute rather than makes discretionary policy choices, which establish enforceable rights or obligations for regulated parties under delegated congressional authority. General statements of policy provide notice of an agency's intentions as to how it will conduct itself, again without creating enforceable rights or obligations for regulated parties under delegated congressional authority.

Both of these types of agency action are expressly exempted from notice and comment by statute. 5 U.S.C. 553(b)(A). While the exception excludes notice and comment procedures, VA invites public comments on this interim final rule and will fully consider and address any comments received.

Moreover, VA 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 APA's “good cause” exceptions (5 U.S.C. 553(b)(B), (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)). VA's existing regulations were promulgated to implement NEPA in accordance with CEQ's NEPA regulations, and thus relied on CEQ's NEPA regulations (38 CFR 26.1). As such, VA's current rules are in an uncertain status, implementing a NEPA process that no longer exists. VA, thus far and as a temporary, emergency measure, has been continuing to operate under its prior procedures as if the CEQ NEPA process still existed. However, this is not tenable.

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

To the extent that public comment may inform VA as to whether it has legal authority to make a different choice than the one it has taken in this interim final rule, VA's solicitation of public comment for 30 days following the publication of the interim final rule is intended to accommodate that possibility. To the extent that this interim final rule would otherwise require a proposal and solicitation of public comment, VA's view is that the “good cause” exception (5 U.S.C. 553(b)(B)) pertains here. And though VA seeks comments to obtain the public's views, such comments could not alter the legal realities-- most notably the repeal of CEQ's NEPA rules and the rescission of the executive order that purported to authorize them--that create the swift need for such a change. VA will consider comments submitted in response to this action and may address them when issuing a final rule, if warranted, after consideration of the comments received.

For the same reasons, VA 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.

Sec. 26.0 Purpose of this subpart.

This subpart provides the procedures by which the Department of Veterans Affairs (VA) considers the environmental effects of its actions in carrying out the VA mission. This subpart also sets forth the scope and terminology of this part, and the responsibilities for implementing the requirements of the National Environmental Policy Act (NEPA) and this part.

Sec. 26.10 Purpose of this part.

(a) The purpose of this part is to implement NEPA as amended (42 U.S.C. 4321 et seq.) for VA actions. VA will follow the procedures and policies outlined in this part; relevant Executive orders, statutes, and regulations; and the policies of VA.

(b) This part establishes a framework for the early incorporation of the NEPA process into VA planning and decision-making for all VA activities that meet the definition of major Federal action in section 111(10) of NEPA (42. U.S.C. 4336e(10)).

(c) This part emphasizes the quality and timeliness of analysis of environmental effects rather than simply the production of documents.

(d) VA intends this part to ensure that VA identifies and considers relevant environmental information early in the process to ensure informed decision-making; to ensure that VA conducts environmental reviews in a coordinated, consistent, predictable, and timely manner; to reduce unnecessary burdens and delays; and to promote concurrent environmental reviews to ensure timely and efficient decision-making.

(e) This part does not, nor does it intend to, govern the rights and obligations of any party outside the Federal Government. They do, however, establish the procedures under which VA will typically fulfill its requirements under NEPA.

(f) In addition to the process for establishing or revising categorical exclusions (CATEXs) set forth in Sec. 26.30(d), VA will consult with the Council on Environmental Quality (CEQ) on any proposed future revisions to these NEPA implementing procedures in accordance with section 102(2)(B) of NEPA (42 U.S.C. 4332(B)).

Sec. 26.11 Applicability and scope.

(a) This part applies to all VA elements in the United States, its territories, and possessions. VA elements include, but are not limited to, all of the sub-agencies, offices, organizations, and administrations under VA control. This part also has information relevant to third parties who participate or otherwise assist VA in the NEPA process, including but not limited to States, Tribes, and applicants for VA benefits or other assistance. Subpart C of this part discusses the role of third parties in the NEPA process. In addition, Sec. 26.93 provides information relevant to international actions or effects.

(b) VA's major Federal actions as defined in section 111(10) of NEPA (42 U.S.C. 4336e(10)) are subject to NEPA. In this part, VA actions refer to actions for which VA is the decision-maker (see Sec. 26.12 for definition of decision-maker).

(1) This part applies to all VA major Federal actions. VA anticipates, on the basis of its experience, that the following types of actions are generally “major”:

(i) Construction and maintenance projects;

(ii) Real property acquisition and disposal;

(iii) Leases and sharing agreements;

(iv) Grants and other funding actions; and

(v) Other facility and asset management decisions.

(2) VA will determine that NEPA does not apply to a proposed action when:

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

(ii) The proposed activity or decision is explicitly exempt from NEPA by law;

(iii) NEPA compliance would clearly and fundamentally conflict with another provision of law;

(iv) Congress, by statute, has prescribed decisional criteria with sufficient completeness and precision such that VA retains no residual discretion to alter its action based on the consideration of environmental factors, in which case that function of VA 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;

(v) The proposed action is an action for which another statute's requirements serve the function of agency compliance with NEPA; or

(vi) The proposed action 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 VA in each instance. NEPA does not apply to “non-Federal actions.” Therefore, under section 111(10)(B)(i) of NEPA, 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 project (42 U.S.C. 4336e(10)(B)(i)). A “but-for” causal relationship is insufficient to make an agency responsible for a particular action under NEPA. 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. VA has determined that the following non- exhaustive list of VA activities or decisions are not subject to NEPA because they presumptively do not meet the definition of a “major Federal action”:

(A) Entitlement actions (see Sec. 26.83(d)) and the VA home loan guaranty program; or

(B) The actions involve routine administrative matters including but not limited to funding salaries, fellowships, corresponding fringe benefits, and travel; budgeting; finance; program management; and record keeping.

(vii) In determining whether NEPA applies to a proposed agency action, VA will consider only the action or project at hand.

Sec. 26.12 Definitions.

(a) All definitions of words and phrases in section 111 of NEPA (42 U.S.C. 4336e) apply to the procedures in this part.

(b) In addition to the terms defined in section 111 of NEPA (42 U.S.C. 4336e), the following definitions apply to the procedures in this part:

Applicant means a non-Federal entity that seeks an action by VA such as granting a permit, license, or financial assistance. The term applicant includes Project Sponsors as referenced in sections 107(f) and 112 of NEPA (42 U.S.C. 4336a(f); as amended through Pub. L. 119-21, July 4, 2025).

Approval authority means the responsibility and authority to approve and sign a decision document such as a finding of no significant impact or record of decision, a memorandum of agreement, a consultation letter, or programmatic agreement. VA has approval authority for all VA actions. VA assigns and may delegate approval authority according to Sec. 26.13.

Connected actions means a separate Federal action within the authority of VA that is closely related to the proposed agency action and should be addressed in a single NEPA document because the proposed agency action:

(i) Automatically triggers the separate Federal action, which independently would require the preparation of additional NEPA documents;

(ii) Cannot proceed unless the separate Federal action is taken previously or simultaneously; or

(iii) Is an interdependent part of a larger Federal action that includes a separate Federal action, which mutually depend on the larger Federal action for their justification.

Decision document means a record of decision for an environmental impact statement, a finding of no significant impact for an environmental assessment, or the categorical exclusion document required for application of certain categorical exclusions as required in Sec. 26.30(a).

Decision-maker means the entity or individual within VA with the authority to decide whether to proceed on a proposed action or select an alternative. In many, but not all, cases, the decision-maker will be the same individual or entity as the proponent. See also Sec. 26.13(e) for a discussion of decision-maker responsibilities.

Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.

(i) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic (such as the effects on employment), social, or health effects. Effects appropriate for analysis under NEPA may be either beneficial or adverse, or both, with respect to these values.

(ii) A “but-for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include those effects that the agency has no ability to prevent due to the limits of its regulatory authority, or that would occur regardless of the proposed action, or that would need to be initiated by a third party.

Extraordinary circumstances means factors or circumstances that indicate a normally categorically excluded action may have a potentially significant effect as described in Sec. 26.30(b).

Human environment or environment means comprehensively the natural and physical environment and the relationship of present and future generations with that environment.

Interim action means an action taken before the decision document is issued. Interim actions include but are not limited to VA actions for individual projects within a program before a programmatic analysis is complete for the entire program. See Sec. 26.60(c) for limitations on actions during the NEPA process.

Jurisdiction by law means agency authority to approve, veto, or finance all or part of the proposal.

Mitigation means measures that avoid, minimize, or compensate for effects caused by a proposed action or alternatives as described in a NEPA document and that have a nexus to those effects. While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation. Mitigation can include:

(i) Avoiding the impact altogether by not taking a certain action or parts of an action.

(ii) Minimizing effects by limiting the degree or magnitude of the action and its implementation.

(iii) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(iv) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(v) Compensating for the impact by replacing or providing substitute resources or environments.

NEPA document means a categorical exclusion document, environmental assessment, environmental impact statement, finding of no significant impact, record of decision, notice of intent, notice of availability, or any other document prepared by VA pursuant to a requirement of NEPA. This is inclusive of “environmental documents” as defined in section 111(5) of NEPA (42 U.S.C. 4336e(5), which refers specifically to environmental impact statements, environmental assessments, and findings of no significant impact.

NEPA Implementation Officer means the VA official responsible for helping to ensure the successful implementation of the NEPA process across all VA offices and administrations. See Sec. 26.13(f) for a list of responsibilities.

NEPA process means all measures necessary for compliance with the requirements of section 2 and title I of NEPA (42 U.S.C. 4321, 4331- 4336e; section 112 as amended through Pub. L. 119-21, July 4, 2025).

NEPA Specialist means a technical specialist in VA for matters relating to

NEPA. See Sec. 26.13(h) for a list of responsibilities.

No action alternative means the option of maintaining the status quo and not proceeding with any action. The no action alternative may be included in the reasonable range of alternatives and may establish a benchmark for comparative analysis under NEPA.

Notice of availability means a notice announcing the issuance and public availability of a NEPA document.

Notice of intent means a public notice that an agency will prepare and consider an environmental impact statement or, as applicable, an environmental assessment.

Other environmental planning requirements means environmental planning requirements including, but not limited to, section 106 of the National Historic Preservation Act (54 U.S.C. 306108) and its implementing regulations, section 7 of the Endangered Species Act (16 U.S.C. 1536) and its implementing regulations, Executive orders, and other environmental laws.

Proponent means the VA element, employee, or representative responsible for planning and initiating the proposed action. In many, but not all, cases, the proponent will be the same individual or entity as the decision-maker. See Sec. 26.13(g) for a list of responsibilities.

Proposed action is used synonymously with “proposal” in this part; see 42 U.S.C. 4336e(12) for the definition of a proposal.

Public means individuals, non-governmental organizations, and community groups. VA may involve the public in the NEPA process through notice and comment procedures. Affected public means those parties with a special interest in a proposed action. Affected public includes, but is not limited to, veterans, entities living in close proximity to a proposed action, and entities whose property or other interests may be affected by potential effects of a proposed action. See Sec. 26.42 for public engagement procedures.

Publish and publication mean methods found by the agency to efficiently and effectively make NEPA documents and information available for review by interested persons, including electronic publication.

Related action means an action undertaken by an agency, for example, a permitting action, some other type of authorization action, an analysis required by statute, or the like, that bears a relationship to other actions undertaken by other agencies relevant to NEPA, such that a set of related actions are all related to one overarching project.

Reasonable alternatives means a reasonable range of alternatives that are technically and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant.

Reasonably foreseeable means sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.

Record of decision means a concise public document prepared by VA after an environmental impact statement is complete and that includes all elements listed in Sec. 26.60(a)(2).

Scope consists of the range of actions, alternatives, and effects to be considered in a NEPA document. The scope of an individual statement may depend on its relationships to other statements.

Supplemental means an analysis performed after an environmental assessment or environmental impact statement has been issued. Supplemental analyses are prepared when the agency makes substantial changes to the proposed action that are relevant to environmental concerns or there are substantial new circumstances or information relevant to environmental concerns and bearing on the proposed action or its effects.

Tiering refers to the coverage of general matters in broader environmental impact statements or environmental assessments (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basin-wide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.

United States means all States, territories, and possessions of the United States, including all waters and air space subject to the territorial jurisdiction of the United States.

VA elements mean all entities within VA, including but not limited to all offices, programs, and administrations within VA.

Sec. 26.13 Responsibilities.

(a) Successful completion. The successful completion of the NEPA process is the duty of:

(1) VA elements;

(2) Persons authorizing or approving VA actions; and

(3) Persons charged by VA to ensure the successful implementation of any and all elements of NEPA.

(b) Applicants. VA relies upon applicants to supply the environmental information necessary to complete the NEPA analysis of proposed VA funded and Federal assistance actions and alternatives. VA retains the responsibility for compliance with NEPA and cannot delegate this responsibility to applicants.

(c) Secretary of VA. The Secretary of VA recognizes the importance of environmental stewardship and promotes the integration of an environmental ethic into all agency decision-making. The Secretary possesses the ultimate responsibility to ensure VA's compliance with NEPA and other environmental planning requirements.

(1) The Secretary has the following objectives for the NEPA process:

(i) Efficient, timely, and effective NEPA planning;

(ii) Maintenance of sufficient resources to meet the goals of timely, effective, and high-quality NEPA analyses;

(iii) Full compliance with all environmental laws, regulations, and Executive orders; and

(iv) Consistency with other VA mission objectives, including service to veterans, fiscal responsibility, and national security.

(2) The Secretary will:

(i) Consider the environmental effects of his/her decisions;

(ii) Plan, program, and budget for the requirements of this part;

(iii) Fully integrate the requirements of this part into planning and decision-making for all policies, programs, activities, and operations of VA; and

(iv) Delegate the authority to the Under Secretaries, Assistant Secretaries, and Directors of Staff Offices to implement the requirements of this part, including designation of the NEPA Implementation Officer; delegation of the authority to review NEPA analyses for technical adequacy and to sign NEPA decision documents based on technical adequacy; and delegation of overall agency NEPA compliance to the Senior Agency Official, who VA will specify in an agency-wide directive on NEPA roles and responsibilities. The Senior Agency Official is an individual with assistant secretary rank or higher and is typically within the Office of Acquisition, Logistics, and Construction.

(d) Under Secretaries, Assistant Secretaries, and Directors of Staff Offices. The Under Secretaries, Assistant Secretaries, and Directors of Staff Offices or their delegate will:

(1) Assess environmental and historic preservation consequences of proposed, new, and on-going programs within their respective organizational units; and

(2) Delegate to points of contact within their organizations as needed to support NEPA compliance.

(e) Decision-makers. VA decision-makers may include but are not limited to Under Secretaries; medical center and cemetery administration directors; and regional medical, benefits, and cemetery administration directors. VA decision-makers will:

(1) Integrate environmental and historic preservation considerations into their decision-making prior to taking action; and

(2) Sign decision documents, as specified in an agency-wide directive on NEPA roles and responsibilities.

(f) NEPA Implementation Officer. The NEPA Implementation Officer is designated by the Secretary or the Secretary's designee, and has the authority to implement the Secretary's objectives for the NEPA process. The NEPA Implementation Officer has the requisite expertise and experience with NEPA to manage implementation of NEPA throughout VA. Typically, the NEPA Implementation Officer is a director within the Office of Construction & Facilities Management; VA will specify the location of this function in an agency-wide directive on NEPA roles and responsibilities.

(1) Support VA's compliance with NEPA and other environmental planning requirements;

(2) Provide technical expertise and guidance for proposed plans, programs, and activities throughout VA;

(3) Inform key environmental staff and Under Secretaries, the Senior Agency Official, Assistant Secretaries, and Directors of Staff Offices about the methods and status of NEPA implementation throughout VA programs and offices;

(4) Advise proponents, decision-makers, and procurement officials on the status and requirements for the NEPA analysis of VA actions;

(5) Develop and provide, as needed, supplemental guidance and training to enable the effective implementation of this part and other environmental planning requirements across all VA elements;

(6) Promote early outreach and solicitation of environmental information for NEPA analysis;

(7) Coordinate requests for cooperating agency status and joint lead agency status and coordinate with State, local, and Tribal agencies as needed with respect to completion of the NEPA process;

(8) Liaise with the Advisory Council on Historic Preservation, the Environmental Protection Agency, and other Federal agencies as needed to satisfy coordination requirements and implement the NEPA process;

(9) Promote the involvement of the public and other non-Federal entities in the NEPA analysis of VA actions with respect to completion of the NEPA process;

(10) Identify discretionary activities within VA and ensure that VA fully integrates the requirements of this part into the planning and implementation of those activities;

(11) Sign records of decision (RODs) for environmental technical adequacy;

(12) Review and approve requests from NEPA Specialists to adopt other agencies' CATEXs in accordance with Sec. 26.31 or rely on NEPA documents from other Federal agencies in accordance with Sec. 26.71;

(13) Work with the Senior Agency Official, Under Secretaries, Assistant Secretaries, and Directors of Staff Offices to accomplish the VA mission in harmony with environmental stewardship by:

(i) Ensuring the NEPA process is complete before VA makes a decision or takes an action concerning the proposal that has an adverse environmental effect or limits the choice of reasonable alternatives;

(ii) Ensuring VA elements are aware of mitigation commitments to address the potential environmental effects of VA programs, projects, and plans; and

(iii) Monitoring the NEPA process to ensure compliance with timing, page limit, scoping, consultation, circulation, and public engagement requirements; and

(14) Delegating authority to sign NEPA documents to NEPA Specialists as appropriate.

(g) Proponent. Proponents are those VA staff in project or functional management positions in a facility or component organization within the Veterans Health Administration, National Cemetery Administration, Veterans Benefits Administration, or a VA program office. Proponents do not include applicants, non-Federal entities, or entities located organizationally outside of the VA element that is responsible for implementing the project. The proponent will:

(1) Consult with a NEPA Specialist or the NEPA Implementation Officer at the beginning of the planning and feasibility stage of any proposed action and before involving the public;

(2) Ensure the budget for a proposed VA action is adequate to comply with applicable environmental and historic preservation laws;

(3) Ensure the schedule for the proposed VA action includes sufficient time for compliance with relevant environmental and historic preservation laws, including NEPA and the National Historic Preservation Act (NHPA);

(4) Initiate and coordinate with the appropriate environmental support to conduct the NEPA analysis prior to undertaking an action;

(5) Review and consider NEPA analyses before making a decision that has environmental or historic preservation effects or limits the choices of alternatives for a VA action; and

(6) Consider mitigation measures and ensure VA requires and provides for mitigation tasks and monitoring.

(h) NEPA Specialists. NEPA Specialists act as the technical specialists in VA for matters relating to the NEPA process and help to ensure its functional integration into the VA mission. NEPA Specialists support the NEPA Implementation Officer with advice and assistance for implementing NEPA in their respective offices and programs. NEPA Specialists may include but are not limited to facility environmental managers, national and regional environmental staff, and other staff specialists throughout VA. NEPA Specialists will:

(1) Act to support and ensure compliance with the requirements of NEPA, this part, applicable Executive orders, and other environmental and historic preservation requirements in conjunction with the proponent;

(2) Provide technical advice on the NEPA process to proponents, decision-makers, the NEPA Implementation Officer, and Under Secretaries, Assistant Secretaries, and Directors of Staff Offices; and

(3) Sign decision documents for technical adequacy, with the project decision itself documented by the approval signature on each decision document as specified throughout this section and in an agency-wide directive on NEPA roles and responsibilities.

(i) Procurement Officials. The Procurement Officials will expeditiously support and execute contract actions to support completion of NEPA analyses within required timeframes.

(j) Office of General Counsel. The Office of General Counsel will:

(1) Advise VA, in consultation with the NEPA Implementation Officer, on whether a proposed action is subject to the procedural requirements of NEPA, NHPA, the Endangered Species Act (16 U.S.C. 1531- 1544), or other environmental or historic preservation laws, Executive orders, and regulations;

(2) Advise VA on compliance with environmental and historic preservation laws, regulations, applicable Executive

orders, and other planning requirements;

(3) Assist in establishing or revising VA's NEPA procedures and guidance documents, including appropriate CATEXs; and

(4) Provide VA with legal sufficiency reviews on environmental and historic preservation analyses, programmatic agreements, interagency agreements, consultations with other Federal agencies, and general legal advice as needed.

(k) Federal Preservation Officer. The Federal Preservation Officer will:

(1) Act as the single point of contact for all matters in VA related to stewardship of historic properties and cultural resources;

(2) Inform Under Secretaries, Assistant Secretaries, Directors of Staff Offices, and key environmental and historic preservation staff of current developments in historic preservation policy and programs;

(3) Provide guidance to VA project proponents and advise as needed in consultations with Tribes, Native Hawaiian organizations, and State Historic Preservation Officers; and

(4) Determine which personnel, VA staff, or contractors are qualified to meet the requirements of section 112 of the NHPA (54 U.S.C. 306131) and work on historic resources issues.

(l) Senior Agency Official. The Senior Agency Official is an individual with assistant secretary rank or higher. The Senior Agency Official is typically within the Office of Acquisition, Logistics, and Construction, and will be specified in an agency-wide directive on NEPA roles and responsibilities. The Senior Agency Official will:

(1) Act as the designee for oversight over VA NEPA compliance;

(2) Promote timely NEPA analysis;

(3) Review and approve requests for VA to serve as the lead agency for joint Federal NEPA actions, where VA and one or more Federal agencies are cooperating on a project;

(4) Resolve implementation issues; and

(5) Delegate authority for these responsibilities as appropriate.

Sec. 26.14 Environmental practices.

(a) Efficiency. VA seeks out opportunities to avoid duplication and delay in the approval of VA actions by integrating the NEPA process into the VA decision-making process as early as possible. For this reason, VA promotes an agency-wide system of NEPA analysis in this part for quality assessment of environmental effects.

(b) Capability. VA will maintain the staff and resources necessary to comply with the requirements of this part. VA may use a contractor or other third party to meet the requirements of NEPA and the procedures in this part, provided VA retains sufficient resources to evaluate the work of those non-VA entities.

(c) Similar actions. VA will analyze similar actions the same way regardless of the proponent or funding source.

(d) Combining NEPA with other environmental and historic preservation requirements. VA encourages all VA elements to integrate the effects analyses required by other Federal and State environmental laws into the NEPA process to the maximum extent practicable. Through integration into one decision-making process, VA improves the quality of analysis of environmental effects, reduces project delays, and enhances the scoping process for discovering relevant environmental issues.

(1) Environmental laws. VA will integrate evaluation required by other environmental laws into the NEPA process, including but not limited to section 106 of the NHPA (54 U.S.C. 306108), section 7 of the Endangered Species Act (16 U.S.C. 1536), and section 404 of the Clean Water Act (33 U.S.C. 1344). VA achieves meaningful integration by synchronizing the timing of reviews under separate laws, removing duplication for requirements such as public comment periods when allowable, and ensuring that the NEPA analysis includes a discussion of the applicable laws and results of any consultation or analysis. VA may also use NEPA as a substitute for section 106 of the NHPA (54 U.S.C. 306108), as allowable under 36 CFR 800.8(c), when the stipulated requirements are met.

(2) Timing. VA will integrate other environmental laws into the NEPA process as early as possible. Each environmental law has its own timing requirements. Where VA can initiate or conduct consultations and permits during the NEPA (planning) phase for a project, VA may integrate them into the NEPA review.

(3) Responsibility. The NEPA Specialist and proponent are responsible for early integration of other environmental laws. The NEPA Specialist advises on the environmental laws applicable to the action.

(4) Documentation. VA will integrate documentation of compliance with other environmental requirements into the NEPA process and include this documentation in the documentation created during the NEPA analysis.

(5) Executive orders. VA will integrate compliance with Executive orders related to environmental issues into the NEPA process. VA recognizes its duty to promote the policies set forth in Executive orders that address environmental issues evaluated in NEPA documents, including but not limited to environmental designations such as floodplains, environmental quality, and resource protection.

(e) Programmatic NEPA documents. VA prepares programmatic NEPA documents to analyze all or some of the environmental effects of a policy, program, plan, or group of related actions. VA can use programmatic NEPA documents as stand-alone documents when sufficient information is available to evaluate all potential effects or when VA anticipates subsequent analysis for specific projects once additional information is available. A programmatic NEPA document pre-positions environmental information for VA decision-makers to expedite the approval process of a VA action and eliminates repetitive discussions of the same issues. See Sec. 26.70 for VA requirements for a programmatic NEPA analysis.

(f) Connected actions. VA will address connected actions in a single NEPA document.