§ 26.11 — Applicability and scope.

§ 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, § 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 § 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 § 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.