99-17475. Policies and Responsibilities For Implementation of the National Environmental Policy Act Within the Department of the Navy  

  • [Federal Register Volume 64, Number 131 (Friday, July 9, 1999)]
    [Proposed Rules]
    [Pages 37069-37072]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-17475]
    
    
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    DEPARTMENT OF DEFENSE
    
    Department of the Navy
    
    32 CFR Part 775
    
    RIN 0703-AA51
    
    
    Policies and Responsibilities For Implementation of the National 
    Environmental Policy Act Within the Department of the Navy
    
    AGENCY: Department of the Navy, DOD.
    
    ACTION: Proposed rule and withdrawal of proposed rule.
    
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    SUMMARY: The Department of the Navy (DON) is revising portions of its 
    regulations which establish the responsibilities and procedures for 
    complying with the National Environmental Policy Act (NEPA). This 
    revision clarifies when certain DON actions must be studied to 
    determine their effect on the human environment and what types of 
    activities are excluded from the NEPA documentation requirements. DON 
    is also withdrawing an earlier proposed rule published in the Federal 
    Register on February 25, 1999.
    
    DATES: Comments must be received by September 7, 1999.
    
    ADDRESSES: Interested parties should submit written comments to: Mr. 
    Lew Shotten, Office of the Assistant Secretary of the Navy 
    (Installations and Environment), 2000 Navy Pentagon, Washington, DC 
    20350.
    
    FOR FURTHER INFORMATION CONTACT: Mr. Lew Shotten, Office of the 
    Assistant Secretary of the Navy (Installations and Environment), 703-
    588-6671.
    
    SUPPLEMENTARY INFORMATION: The Department of the Navy published a 
    document in the Federal Register of February 25, 1999, (64 FR 9286) 
    proposing to revise 32 CFR part 775 in its entirety. Due to errors in 
    that submission it is withdrawn and these proposed amendments to 32 CFR 
    part 775 are submitted.
        The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
    4321 et seq.) establishes national policy and goals for protection of 
    the environment. Section 102(2) of NEPA contains certain procedural 
    requirements directed toward the attainment of such goals. In 
    particular, all federal agencies are required to give appropriate 
    consideration to the environmental effects of their proposed actions in 
    their decisionmaking and to prepare detailed environmental statements 
    on recommendations or reports significantly affecting the quality of 
    the human environment.
        Executive Order 11991 of May 24, 1977, directed the Council on 
    Environmental Quality (CEQ) to issue regulations to implement 
    procedural provisions of NEPA. Accordingly, CEQ issued final NEPA 
    regulations (40 CFR parts 1500-1508) on November 29, 1978, which are 
    binding on all federal agencies as of July 30, 1979. These regulations 
    require each federal agency, as necessary, to adopt implementing 
    procedures to supplement the CEQ regulations. Section 1507.3(b) of the 
    CEQ regulations identifies those sections of the regulations that must 
    be addressed in agency procedures.
        The proposed rule revises the Department's implementing regulations 
    that were originally published on August 20, 1990.
        Significant changes that these amendments bring about include: 
    revision of and additions to the DON list of approved categories of 
    actions excluded (CATEXed) from further documentation under NEPA; 
    revised criteria for disallowing the application of listed CATEXs; and, 
    assignment of responsibilities to the Assistant Secretary of the Navy 
    (Research, Development and Acquisition), the General Counsel of the 
    Navy, and the Judge Advocate General of the Navy.
        The Department of the Navy has determined that this regulation is 
    not a significant rule as defined by Executive Order 12866 and is not 
    subject to the relevant provisions of the Regulatory Flexibility Act of 
    1980 (5 U.S.C. 605(b)).
    
    List of Subjects in 32 CFR Part 775
    
        Environmental impact statements.
    
        Accordingly, part 775 of chapter VI of title 32 of the Code of 
    Federal Regulations is proposed to be amended as follows:
    
    PART 775--POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE 
    NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY
    
        1. The authority for part 775 continues to read as follows:
    
        Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR parts 1500-
    1508.
    
        2. Section 775.1 is revised to read as follows:
    
    
    Sec. 775.1  Purpose and Scope.
    
        (a) To implement the provisions of the National Environmental 
    Policy Act (NEPA), 42 U.S.C. 4321 et seq., 40 CFR 1500-1508, that 
    direct environmental planning procedures, and to assign 
    responsibilities within the Department of the Navy (DON) for 
    preparation, review, and approval of environmental documents prepared 
    under NEPA.
        (b) The policies and responsibilities set out in this part apply to 
    the DON, including the Office of the Secretary of the Navy, and Navy 
    and Marine Corps commands, operating forces, shore establishments, and 
    reserve components. This part is limited to the actions of these 
    elements with environmental effects in the United States, its 
    territories, and possessions.
        3. Section 775.2 is revised to read as follows:
    
    
    Sec. 775.2  Definitions.
    
        (a) Action. A new or continuing activity, program, project, or 
    exercise
    
    [[Page 37070]]
    
    which is under the control and direction of the DON and that may change 
    the physical environment or impact natural resources. An action is 
    considered a proposed action and the requirements of this instruction 
    become applicable when the action proponent has identified a program, 
    project, exercise, or other activity and is actively preparing to make 
    a decision among one or more alternative means of executing the 
    program, project, exercise or other activity.
        (b) Action proponent. The commander, commanding officer, or 
    civilian director of a unit, activity, or organization who initiates a 
    proposal for action, as defined in 40 CFR 1508.23, and who has command 
    and control authority over the action once it is authorized. For some 
    actions, the action proponent will also serve as the decisionmaking 
    authority for that action. In specific circumstances, the action 
    proponent and decisionmaker may be identified in Navy Regulations, 
    other SECNAV Instructions, operational instructions and orders, 
    acquisition instructions, and other sources which set out authority and 
    responsibility within the DON.
        (c) Environmental Impact Statement (EIS). An environmental document 
    prepared according to the requirements of Council on Environmental 
    Quality (CEQ) regulations (40 CFR parts 1500-1508) for a major action 
    which will have a significant effect on the quality of the human 
    environment.
        (d) Environmental Assessment (EA). A concise document prepared 
    according to the requirements of 40 CFR parts 1500-1508 which briefly 
    provides sufficient evidence and analysis for determining whether to 
    prepare an EIS. An EA aids compliance with NEPA when no EIS is 
    necessary and facilitates preparation of an EIS when one is necessary.
        (e) Categorical Exclusion (CATEX). A published category of actions 
    which, under normal conditions, are excluded from further documentation 
    requirements under NEPA.
        (f) Record of Decision (ROD). An environmental document signed by 
    an appropriate official of the DON. A ROD sets out a concise summary of 
    the final decision and selected measures for mitigation (if any) of 
    adverse environmental impacts of the alternative chosen from those 
    considered in an EIS.
        (g) Finding of No Significant Impact (FONSI). A document which sets 
    out the reasons why an action not otherwise categorically excluded will 
    not have a significant impact on the human environment, and for which 
    an EIS will not therefore be prepared. A FONSI may be one result of 
    review of an EA.
        4. Section 775.3 is revised to read as follows:
    
    
    Sec. 775.3  Policy.
    
        (a) It is the DON policy regarding NEPA, consistent with its 
    mission and the environmental laws and regulations of the United 
    States, to:
        (1) Initiate the NEPA processes as soon as possible in the course 
    of identifying a proposed action.
        (2) Develop and carefully consider a reasonable range of 
    alternatives for achieving the purpose(s) of proposed actions.
        (3) Assign responsibility for preparation of action specific 
    environmental analysis under NEPA to the action proponent. The action 
    proponent should understand the plans, analyses, and environmental 
    documents related to that action.
        (b) NEPA is intended to ensure that environmental issues are fully 
    considered and incorporated into the federal decision making process. 
    Consequently, actions for which the DON has no decision making 
    authority, such as those carried out under a non discretionary mandate 
    from Congress (e.g., congressional direction to transfer federal 
    property to a particular entity for a particular purpose) or as an 
    operation of law (e.g., reversionary interests in land recorded at the 
    time the property was obtained), are not major federal actions in the 
    context of NEPA and require no analysis or documentation under NEPA or 
    CEQ regulations.
        5. Section 775.4 is revised to read as follows:
    
    
    Sec. 775.4  Responsibilities.
    
        (a) The Assistant Secretary of the Navy (Installations and 
    Environment) (ASN (I&E)) shall:
        (1) Act as principal liaison with the Office of the Secretary of 
    Defense, the Council on Environmental Quality, the Environmental 
    Protection Agency, other federal agencies, Congress, state governments, 
    and the public with respect to significant environmental planning 
    matters.
        (2) Direct the preparation of appropriate environmental documents 
    and, with respect to those matters governed by SECNAV Instruction 
    5000.2 series, advise the Assistant Secretary of the Navy (Research 
    Development and Acquisition (ASN(RD&A)) concerning environmental issues 
    and concerning the appropriate level of environmental planning document 
    needed in any particular circumstance.
        (3) Except for proposed acquisition-related actions addressed in 
    paragraph (b)(2) of this section, review, sign, and approve for 
    publication, as appropriate, documents prepared under NEPA.
        (4) Establish and publish a list of categorical exclusions for the 
    DON.
        (b) The Assistant Secretary of the Navy (Research, Development and 
    Acquisition (ASN(RD&A)) shall, in accordance with SECNAV Instruction 
    5000.2 series:
        (1) Ensure that DON acquisition programs and procurements comply 
    with NEPA.
        (2) Review, sign, and approve for publication, as appropriate, 
    environmental documents prepared under NEPA for proposed acquisition-
    related actions.
        (c) The General Counsel of the Navy and the Judge Advocate General 
    of the Navy shall:
        (1) Ensure that legal advice for compliance with environmental 
    planning requirements is available to all decision-makers.
        (2) Advise the Secretary of the Navy, the Chief of Naval 
    Operations, and the Commandant of the Marine Corps as to the legal 
    requirements that must be met, and the conduct and disposition of all 
    legal matters arising in the context of environmental planning.
        (d) The Chief of Naval Operations (CNO) and the Commandant of the 
    Marine Corps (CMC) shall:
        (1) Implement effective environmental planning throughout their 
    respective Services.
        (2) Prepare and issue instructions or orders to implement 
    environmental planning policies of the DON. Forward proposed CNO/CMC 
    environmental planning instructions or orders to ASN (I&E) and, when 
    appropriate, ASN(RD&A), for review and comment prior to issuance.
        (3) Ensure that subordinate commands establish procedures for 
    implementing mitigation measures described in environmental planning 
    documents.
        (4) Provide coordination as required for the preparation of 
    environmental documents for actions initiated by non-DON/DOD entities, 
    state or local agencies and/or private individuals for which Service 
    involvement may be reasonably foreseen.
        (5) Bring environmental planning matters that involve controversial 
    issues or which may affect environmental planning policies or their 
    implementation to the attention of ASN(I&E), and where appropriate 
    ASN(RD&A), for coordination and determination.
        6. Section 775.6 is amended by revising paragraphs (a), (b), (e) 
    and (f) to read as follows:
    
    [[Page 37071]]
    
    Sec. 775.6  Planning considerations.
    
        (a) An EIS must be prepared for proposed major federal actions that 
    clearly will have significant impacts on the human environment. The 
    agency decision in the case of an EIS is reflected in a ROD.
        (b) Where a proposed major federal action has the potential for 
    significantly affecting the human environment, but it is not clear 
    whether the impacts of that particular action will in fact be 
    significant, or where the nature of an action precludes use of a 
    categorical exclusion, an EA may be used to assist the agency in 
    determining whether to prepare an EIS. If the agency determination in 
    the case of an EA is that there is no significant impact on the 
    environment, the findings will be reflected in a FONSI. If the EA 
    determines that the proposed action is likely to significantly affect 
    the environment (even after mitigation), than an EIS will be prepared.
    * * * * *
        (e) Where a federal agency has determined through experience, 
    studies, or prior NEPA analysis that impacts normally resulting from a 
    particular category of actions are not significant, a categorical 
    exclusion (CATEX) may be used to exclude the proposed action from 
    further analysis. Even though a proposed action generally is covered by 
    a listed categorical exclusion, a categorical exclusion will not be 
    used if the proposed action:
        (1) Would adversely affect public health or safety;
        (2) Involves effects on the human environment that are highly 
    uncertain, involve unique or unknown risks, or which are scientifically 
    controversial;
        (3) Establishes precedents or makes decisions in principle for 
    future actions which have the potential for significant impacts;
        (4) Threatens a violation of federal, state, or local environmental 
    laws applicable to the Department of the Navy; or
        (5) Involves an action that, as determined in coordination with the 
    appropriate resource agency, may:
        (i) Have an adverse effect on federally-listed endangered/
    threatened species or marine mammals;
        (ii) Have an adverse effect on coral reefs or on federally 
    designated wilderness areas, wildlife refuges, marine sanctuaries, or 
    park lands;
        (iii) Adversely affect the size, function or biological value of 
    wetlands and is not covered by a nation-wide or regional permit;
        (iv) Have an adverse effect on archaeological resources or 
    resources (including but not limited to ships, aircraft, vessels and 
    equipment) listed or determined eligible for listing on the National 
    Register of Historic Places;
        (v) Result in an uncontrolled or unpermitted release of hazardous 
    substances or require a conformity determination under standards of the 
    Clean Air Act General Conformity Rule.
        (f) Categorical exclusions. The following are actions which, under 
    normal conditions, are categorically excluded from further 
    documentation requirements under NEPA. These exclusions are separated 
    into two groupings. Group I consists of actions which clearly do not 
    have the potential for causing significant impacts on the human 
    environment and consequently do not meet the basic definition of major 
    federal action in the context of NEPA. Group II consists of actions 
    which have the potential for causing significant impacts on the human 
    environment but which, through experience, studies, or prior NEPA 
    analysis, have been shown not to have significant environmental 
    impacts. A decision to forego preparation of an EA or EIS on the basis 
    of one or more categorical exclusions in Group II shall be documented 
    by identifying the applicable CATEX and describing the proposed action 
    to the extent required to support selection and use of a CATEX. 
    Application of a categorical exclusion does not affect the 
    applicability of other laws/regulations (e.g., Endangered Species Act, 
    Clean Water Act, and National Historic Preservation Act) to the 
    proposed action.
        (1) Group I Categorical Exclusions:
        (i) Routine fiscal, administrative, and recreation/welfare 
    activities, including administration of contracts;
        (ii) Routine law and order activities performed by military 
    personnel, military police, or other security personnel, including 
    physical plant protection and security;
        (iii) Routine use and operation of existing facilities, 
    laboratories, and equipment;
        (iv) Administrative studies, surveys, and data collection;
        (v) Issuance or modification of administrative procedures, 
    regulations, directives, manuals, or policy;
        (vi) Military ceremonies;
        (vii) Routine procurement of goods and services;
        (viii) Routine repair and maintenance of buildings, facilities, 
    vessels, aircraft and equipment associated with existing operations and 
    activities (e.g., localized pest management activities, minor erosion 
    control measures, painting, refitting);
        (ix) Training of an administrative or classroom nature;
        (x) Routine personnel actions;
        (xi) Routine movement of mobile assets (such as ships and aircraft) 
    for homeport reassignments, for repair/overhaul, or to train/perform as 
    operational groups where no new support facilities are required;
        (xii) Routine procurement, management, storage, handling, 
    installation, and disposal of commercial items, where the items are 
    used and handled in accordance with applicable regulations (e.g., 
    consumables, electronic components, computer equipment, pumps).
        (2) Group II Categorical Exclusions:
        (i) Actions to conform or provide conforming use specifically 
    required by new or existing applicable legislation or regulations, 
    (e.g., hush houses for aircraft engines, scrubbers for air emissions, 
    improvements to stormwater and sanitary and industrial wastewater 
    collection and treatment systems, and installation of fire fighting 
    equipment);
        (ii) The modification of existing systems or equipment when the 
    environmental effects will remain substantially the same, and the use 
    is consistent with applicable regulations;
        (iii) Movement, handling and distribution of materials, including 
    hazardous materials/wastes that when moved, handled, or distributed are 
    in accordance with applicable regulations;
        (iv) New activities conducted at established laboratories and 
    plants, (including contractor-operated laboratories and plants) where 
    all airborne emissions, waterborne effluent, external ionizing and non-
    ionizing radiation levels, outdoor noise, and solid and bulk waste 
    disposal practices are in compliance with existing applicable federal, 
    state, and local laws and regulations;
        (v) Studies, data, and information gathering that involve no 
    permanent physical change to the environment, (e.g., topographic 
    surveys, wetlands mapping, surveys for evaluating environmental damage, 
    and engineering efforts to support environmental analyses);
        (vi) Temporary placement and use of simulated target fields (e.g., 
    inert mines, simulated mines, or passive hydrophones) in fresh, 
    estuarine, and marine waters for the purpose of military training 
    exercises or research, development, test and evaluation;
        (vii) Installation and operation of passive scientific measurement 
    devices (e.g., antenna, tide gauges, weighted hydrophones, salinity 
    measurement devices, and water quality measurement devices) where use 
    will not result in
    
    [[Page 37072]]
    
    changes in operations tempo and is consistent with applicable 
    regulations;
        (viii) Short term increases in air operations up to 50 percent of 
    the typical operation rate, or increases of 50 operations per day, 
    whichever is less;
        (ix) Decommissioning, disposal, or transfer of Navy vessels, 
    aircraft, vehicles, and equipment when conducted in accordance with 
    applicable regulations, including those regulations applying to removal 
    of hazardous materials;
        (x) Non-routine repair, renovation, and donation or other transfer 
    of structures, vessels, aircraft, vehicles, landscapes or other 
    contributing elements of facilities listed or eligible for listing on 
    the National Register of Historic Places which will result in no 
    adverse effect;
        (xi) Hosting or participating in public events (e.g., air shows, 
    open houses, Earth Day events, and athletic events) where no permanent 
    changes to existing infrastructure (e.g., road systems, parking and 
    sanitation systems) are required to accommodate all aspects of the 
    event;
        (xii) Military training conducted on or over nonmilitary land or 
    water areas, where such training is consistent with the type and tempo 
    of existing non-military airspace, land, and water use (e.g., night 
    compass training, forced marches along trails, roads and highways, use 
    of permanently established ranges, use of public waterways, or use of 
    civilian airfields);
        (xiii) Transfer of real property from DON to another military 
    department or to another federal agency;
        (xiv) Receipt of property from another federal agency when there is 
    no substantial change in land use;
        (xv) Minor land acquisitions or disposals where anticipated or 
    proposed land use is consistent with existing land use and zoning, both 
    in type and intensity;
        (xvi) Disposal of excess easement interests to the underlying fee 
    owner;
        (xvii) Renewals and minor amendments of existing real estate grants 
    for use of government-owned real property where no significant change 
    in land use is anticipated;
        (xviii) Land withdrawal continuances or extensions which merely 
    establish time periods and where there is no significant change in land 
    use;
        (xix) Renewals and/or initial real estate ingrants and outgrants 
    involving existing facilities and land wherein use does not change 
    significantly (e.g., leasing of federally-owned or privately-owned 
    housing or office space, and agricultural outleases);
        (xx) Grants of license, easement, or similar arrangements for the 
    use of existing rights-of-way or incidental easements complementing the 
    use of existing rights-of-way for use by vehicles (not to include 
    significant increases in vehicle loading); electrical, telephone, and 
    other transmission and communication lines; water, wastewater, 
    stormwater, and irrigation pipelines, pumping stations, and facilities; 
    and for similar utility and transportation uses;
        (xxi) New construction that is consistent with existing land use 
    and, when completed, the use or operation of which complies with 
    existing regulatory requirements (e.g., a building within a cantonment 
    area with associated discharges/runoff within existing handling 
    capacities);
        (xxii) Demolition, disposal, or improvements involving buildings or 
    structures not on or eligible for listing on the National Register of 
    Historic Places and when in accordance with applicable regulations 
    including those regulations applying to removal of asbestos, PCBs, and 
    other hazardous materials;
        (xxiii) Acquisition, installation, and operation of utility (e.g., 
    water, sewer, electrical) and communication systems, (e.g., data 
    processing cable and similar electronic equipment) which use existing 
    rights of way, easements, distribution systems, and/or facilities;
        (xxiv) Decisions to close facilities, decommission equipment, and/
    or temporarily discontinue use of facilities or equipment, where the 
    facility or equipment is not used to prevent/control environmental 
    impacts);
        (xxv) Maintenance dredging and debris disposal where no new depths 
    are required, applicable permits are secured, and disposal will be at 
    an approved disposal site;
        (xxvi) Relocation of personnel into existing federally owned or 
    commercially-leased space that does not involve a substantial change 
    affecting the supporting infrastructure (e.g., no increase in vehicular 
    traffic beyond the capacity of the supporting road network to 
    accommodate such an increase);
        (xxvii) Pre-lease exploration activities for oil, gas or geothermal 
    reserves, (e.g., geophysical surveys);
        (xxviii) Natural resources management actions where underlying 
    natural resources management decisions have been analyzed in an EA or 
    EIS;
        (xxix) Installation of devices to protect human or animal life, 
    (e.g., raptor electrocution prevention devices, fencing to restrict 
    wildlife movement onto airfields, and fencing and grating to prevent 
    accidental entry to hazardous areas);
        (xxx) Reintroduction of endemic or native species (other than 
    endangered or threatened species) into their historic habitat when no 
    substantial site preparation is involved;
        (xxxi) Temporary closure of public access to DON property in order 
    to protect human or animal life;
        (xxxii) Actions similar in type, intensity and setting (including 
    physical location and, where pertinent, time of year) to other actions 
    for which it has been determined, in a DON EA or EIS, that there were 
    no significant environmental impacts;
        (xxxiii) Actions which require the concurrence or approval of 
    another federal agency where the action is a categorical exclusion of 
    the other federal agency.
        7. Section 775.12 is revised to read as follows:
    
    
    Sec. 775.12  Delegation of Authority.
    
        (a) The ASN(I&E) may delegate his/her responsibilities under this 
    instruction for review, approval and/or signature of EISs and RODs to 
    appropriate Executive Schedule/Senior Executive Service civilians or 
    flag/general officers. ASN (I&E), CNO and CMC may delegate all other 
    responsibilities assigned in this instruction as deemed appropriate.
        (b) The ASN(RD&A) delegation of authority for approval and 
    signature of documents under NEPA is contained in SECNAV Instruction 
    5000.2 series which sets out policies and procedures for acquisition 
    programs.
        (c) Previously authorized delegations of authority are continued 
    until revised or withdrawn.
    
        Dated: June 29, 1999.
    Ralph W. Corey,
    Commander, U.S. Navy, Judge Advocate General's Corps, Alternate Federal 
    Register Liaison Officer.
    [FR Doc. 99-17475 Filed 7-8-99; 8:45 am]
    BILLING CODE 3810-FF-P
    
    
    

Document Information

Published:
07/09/1999
Department:
Navy Department
Entry Type:
Proposed Rule
Action:
Proposed rule and withdrawal of proposed rule.
Document Number:
99-17475
Dates:
Comments must be received by September 7, 1999.
Pages:
37069-37072 (4 pages)
RINs:
0703-AA51: Policies and Responsibilities for Implementation of the National Environmental Policy Act Within the Department of the Navy
RIN Links:
https://www.federalregister.gov/regulations/0703-AA51/policies-and-responsibilities-for-implementation-of-the-national-environmental-policy-act-within-the
PDF File:
99-17475.pdf
CFR: (6)
32 CFR 775.1
32 CFR 775.2
32 CFR 775.3
32 CFR 775.4
32 CFR 775.6
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