[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that submission it is withdrawn and these proposed amendments to 32 CFR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
