[Federal Register Volume 60, Number 149 (Thursday, August 3, 1995)]
[Proposed Rules]
[Pages 39694-39698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19136]
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FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 10
RIN 3067-AC41
Environmental Considerations/Categorical Exclusions
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Proposed rule.
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SUMMARY: This rule proposes to revise the categories of actions or
categorical exclusions that normally would not require an environmental
impact statement or environmental assessment. These proposed changes
are intended to reduce the administrative processes and decrease the
time required for project funding and implementation, while still
ensuring that FEMA satisfies environmental concerns and issues. The
proposed changes are consistent with Federal directives, regulations
and statutes.
DATES: We invite comments on the proposed rule, which must be received
on or before September 18, 1995.
ADDRESSES: Please submit written comments to the Rules Docket Clerk,
Office of the General Counsel, Federal Emergency Management Agency, 500
C Street SW., room 840, Washington, DC 20472, (fax) (202) 646-4536.
FOR FURTHER INFORMATION CONTACT: Rick Shivar, Office of Policy and
Assessment, Federal Emergency Management Agency, 500 C Street SW.,
Washington, DC 20472, or phone (202) 646-3610.
SUPPLEMENTARY INFORMATION: The proposed changes respond to numerous
suggestions for additional exclusion categories and for modifications
to existing exclusion categories. They reflect several years'
experience on the types of actions that generally receive a finding of
no significant impact after FEMA makes an environmental assessment. The
proposed changes are intended to speed the approval of those projects
with no potential for significant environmental effects and to allow
attention to be focused on those projects with potential environmental
concerns.
In order to produce a complete and effective update of exclusion
categories, we conducted a review of the environmental assessments (EA)
and the findings of no significant impact (FONSI) that FEMA has issued.
In the last few years we have completed over 340 EAs, but there is only
one case where an environmental impact statement (EIS) was written.
While many EAs identified impacts that were able to be mitigated below
the level of significance, we found that the clear majority of actions
have no significant impact. Reviewing this last group revealed specific
types of projects that historically did not produce significant
environmental effects. In conjunction with the review of FEMA's EAs, we
conducted a literature review of other Federal documents containing
similar types of exclusions to ensure consistency of FEMA's exclusions
with other Federal agencies' regulations. The results of these two
reviews are the basis for the proposed change to FEMA's list of
exclusion categories.
These proposed changes are also in keeping with the Council on
Environmental Quality's guidance to
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Federal agencies on this subject (48 FR 34263, July 28, 1983). That
guidance encourages Federal agencies to add flexibility to implementing
procedures to allow new types of actions to be classified as
categorical exclusions (CATEXs) with minimal documentation required.
This is done by developing more broadly defined categories as well as
providing examples of typical CATEXs, rather than a comprehensive list,
so that specific actions not previously listed by an agency can be
considered for CATEX status on a case-by-case basis.
The proposed exclusion categories would not affect FEMA's
responsibility to comply with all other applicable local, state, and
Federal laws and regulations relating to health, safety and the
environment. This would encompass Federal environmentally oriented
statutes including, among others: the Clean Air Act, the Clean Water
Act, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Coastal
Zone Management Act, the Coastal Barrier Resources Act, the Endangered
Species Act, the National Historic Preservation Act, and the
Archaeological and Historic Preservation Act. It would not affect
FEMA's responsibilities under Executive Orders 11988, 11990, and 12898.
Nor would it affect FEMA's implementing regulations at 44 CFR part 9,
or FEMA's National Flood Insurance Program rules at 44 CFR parts 59
through 77.
A point of clarification of the term ``categorical exclusion'' is
necessary in the discussion of this proposed rule. Section 316 of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act), Pub.L. 93-288, as amended, 42 U.S.C. 5159, provides (1)
for a statutory exclusion from NEPA requirements for certain actions
taken under specific sections of that Act (sections 402, 403, 407 and
502), and (2) for those actions under section 406 of the Stafford Act
that have ``the effect of restoring a facility substantially to its
condition prior to the disaster or emergency.'' While statutory
exclusions are exempted from all NEPA documentation, actions that are
categorically excluded from preparation of an EA or an EIS must be
documented by FEMA under this part. However, as with actions
categorically excluded, an action statutorily excluded from NEPA is not
exempt from the requirements of the other environmentally oriented
statutes indicated above. To help determine the level of environmental
review required and, specifically, when neither an EA nor an EIS is
likely to be required for a proposed action, the list of exclusion
categories presented by this rule is comprehensive in that it includes
both categorical exclusions and those actions that are statutorily
excluded (denoted by [SE]).
We present the list of proposed exclusion categories with
administrative type actions appearing first followed by emergency and
other actions. The administrative actions relate mainly to activities
that in and of themselves do not normally impact the environment, such
as: planning, design, procurement, acquisition, training, studies and
other administrative processes. The emergency and other actions mainly
address emergency, disaster-related, or other activities that could
impact features of the human and natural environment, such as:
construction; maintenance or repair of facilities or vegetation;
relocation of structures; floodproofing; emergency response and
deployment; physical and other assistance.
Since the proposed revision would republish and redesignate some
paragraphs, and modify other paragraphs, the following discussion is
directed only at those items that are added, removed, or revised.
44 CFR 10.8 would be revised to redesignate and revise the
discussion of statutory exclusions to recognize the difference between
the basic nature of the statutory exclusion and of the CATEX. We also
updated references to sections of the Stafford Act.
New paragraph (d)(2) modifies the nomenclature ``List of
categorical exceptions'' to ``List of exclusion categories'' to reflect
the categorical nature of the list as opposed to a list of exceptions.
This change is also reflected in new paragraph (d)(6). New paragraphs
(d)(2)(i),(ii),(iii),(v),(vi), and (vii) make minor wording revisions
and clarify the language of existing categories but do not change their
general substance.
New paragraph (d)(2)(iv) would address inspection and monitoring
processes that are part of the compliance requirements for various
programs. These activities are passive as to the environment. Any
federally funded action that the inspections or monitoring might
recommend is subject to the NEPA process.
Paragraph (d)(2)(viii) would allow for the timely evaluation and
acquisition of land in advance of project development to avoid land
speculation that could arise with early public disclosure. This
categorical exclusion applies only to acquisition of the land. Any
subsequent use of the property for a facility or project must be
considered as a separate action under this part without regard to
ownership of the land.
Paragraph (d)(2)(ix) would address the purchase or leasing of
existing facilities when land use requirements allow the proposed use.
Paragraph (d)(2)(x) would allow for interagency exchange of real
property.
Paragraph (d)(2)(xi) would cover the acquisition, installation, or
operation of utilities, gauges, communication and warning systems when
using established rights-of-way, existing systems or facilities.
Paragraph (d)(2)(xiii) would allow for the planting of indigenous
vegetation, for example, to reduce erosion or fire hazard.
Paragraph (d)(2)(xiv) would apply to the removal of structures,
improvements or debris to sites permitted for such material. The
paragraph also applies to the demolition, as well as removal, of
structures to such permitted locations.
Paragraph (d)(2)(xv) would apply to small, individual structures
that are to be relocated to a new site, where the new site is developed
with substantially completed infrastructure, and existing lots have
been previously disturbed, for example, by grading or prior
construction activities.
Paragraph (d)(2)(xvi) would exclude the act of granting a community
exception for residential basement floodproofing pursuant to the
National Flood Insurance Program.
Paragraph (d)(2)(xvii) would provide to actions under the
mitigation and other programs the same exclusion available by statute
to actions funded pursuant to section 406 of the Stafford Act whereby a
facility can be restored to its approximate preexisting design,
function and location.
Paragraph (d)(2)(xviii) would allow for improvements or upgrading
to current codes or standards an existing facility in an already
developed and appropriately zoned area on previously disturbed or
graded lots. This would include improvements in the disturbed portion
of a lot of an existing building, culverts and berms within the
previously disturbed perimeter of a road, storm drainage or utility
system or existing facility. New construction of hazard mitigation
measures that satisfy the conditions of this section are also covered.
Paragraph (d)(2)(xix) would permit actions within enclosed
facilities which comply with local construction, noise, pollution and
waste disposal regulations.
Paragraph (d)(2)(xx) and paragraph (d)(2)(xxi) would incorporate
some existing statutory exclusions into the CATEX list. Paragraph
(d)(2)(xx) would
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exclude, in addition to the existing category for the deployment and
support of Emergency Support Teams, direct response activities
including activation and support of the Catastrophic Disaster Response
Group, Regional Operations Centers, Emergency Response Teams, Urban
Search and Rescue teams, and situation assessment, reconnaissance and
other data gathering efforts in response to and for recovery from a
disaster.
Paragraph (d)(2)(xxi) would exclude emergency assistance and relief
activities and would rephrase terminology to reflect the amended
Stafford Act. This would include general federal and essential
assistance (Stafford Act sections 402 and 403), food coupons and
commodities (sections 412 and 413), and Federal emergency assistance
(section 502). Debris removal (section 407) would become less
restrictive. The temporary housing definition (section 408) would be
simplified as would the definitions of the individual and family grant
(section 411) and community disaster loan (section 417) exclusions.
In paragraph (d)(3) the list of Extraordinary Circumstances, which
was section 10.8(e), would be updated to clarify the circumstances that
may cause an action that is normally categorically excluded to have the
potential for significant environmental impact. The previous paragraph
(e)(2) describing ``actions in highly populated or congested areas'' is
replaced in paragraph (d)(3)(ii) with a more workable ``actions with a
high level of controversy.'' In paragraph (d)(3)(iv) clarifying
language is added to the term ``unproven technology.'' In paragraph
(d)(3)(vi) the hazardous substance condition was changed from ``use''
to ``presence.'' Paragraph (d)(3)(vii), which addresses flood plains or
wetlands, would be expanded to include other special or critical
resources, i.e., coastal zones, wildlife refuge and wilderness areas,
wild and scenic rivers, sole or principal drinking water aquifers, etc.
Two new categories were added to insure that adverse health and
safety effects, paragraph (d)(3)(viii) and the potential violation of
Federal, state, local or tribal requirements, paragraph(d)(3)(ix),
would be considered as extraordinary circumstances.
Paragraph (d)(5), Revocation, would be added to assure that if the
conditions upon which a categorical exclusion was granted have changed
or new information is discovered indicating that the action no longer
meets the conditions of the categorical exclusion, the responsible
official must revoke the exclusion and ask for a full environmental
review.
Paragraph (d)(6)(i) and (d)(6)(ii), which addresses changes to the
list of exclusion categories, adds ``directorates'' to ``offices and
administrations'' to more correctly reflect all the organizational
entities in FEMA.
National Environmental Policy Act
The requirements of 44 CFR Part 10, Environmental Consideration,
would exclude this proposed rule. FEMA has not prepared an
environmental impact statement.
Regulatory Flexibility Act
I certify that this proposed rule would not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule adds eight
categories to FEMA's categorical exclusions from reviews under the
National Environmental Policy Act, and FEMA does not expect the rule
(1) would affect adversely the availability of disaster assistance
funding to small entities, (2) would have significant secondary or
incidental effects on a substantial number of small entities, or (3)
would create any additional burden on small entities.
Regulatory Planning and Review
This proposed rule is not a significant regulatory action within
the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993,
Regulatory Planning and Review, 3 CFR, 1994 Comp., p. 638. To the
extent possible this proposed rule adheres to the regulatory principles
set forth in E.O. 12866, but has not been reviewed by the Office of
Management and Budget under E.O. 12866.
Paperwork Reduction Act
This proposed rule does not involve any collection of information
for the purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Executive Order 12612, Federalism
This proposed rule involves no policies that have federalism
implications under Executive Order 12612, Federalism, October 26, 1987,
3 CFR, 1987 Comp., p.252.
Executive Order 12778, Civil Justice Reform
This proposed rule meets the applicable standards of section
2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR,
1991 Comp., p.309.
List of Subjects in 44 CFR Part 10
Environmental impact statements.
Accordingly, 44 CFR part 10 is proposed to be amended as follows:
PART 10--ENVIRONMENTAL CONSIDERATIONS
1. The authority citation for part 10 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; E.O. 11514 of March 7, 1970,
35 FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977
Comp., p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3
CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3
CFR, 1979 Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3
CFR, 1979 Comp., p. 412, as amended.
2. In Sec. 10.8, paragraphs (c), (d), and (e) are revised to read
as follows:
Sec. 10.8 Determination of requirement for environmental review.
* * * * *
(c) Statutory exclusions. The following actions are statutorily
excluded from NEPA and the preparation of environmental impact
statements and environmental assessments by section 316 of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, as amended,
42 U.S.C. 5159 (Stafford Act);
(1) Action taken or assistance provided under sections 403, 407,
502, or 422 of the Stafford Act; and
(2) Action taken or assistance provided under section 406 or 422 of
the Stafford Act that has the effect of restoring facilities
substantially as they existed before a major disaster or emergency.
(d) Categorical Exclusions (CATEXs). CEQ regulations at 40 CFR
1508.4 provide for the categorical exclusion of actions that do not
individually or cumulatively have a significant impact on the human
environment and for which, therefore, neither an environmental
assessment nor an environmental impact statement is required. Full
implementation of this concept will help FEMA avoid unnecessary or
duplicate effort and concentrate resources on significant environmental
issues.
(1) Criteria. The criteria used for determination of those
categories of actions that normally do not require either an
environmental impact statement or an environmental assessment include:
(i) Minimal or no effect on environmental quality;
(ii) No significant change to existing environmental conditions;
and
(iii) No significant cumulative environmental impact.
[[Page 39697]]
(2) List of exclusion categories. FEMA has determined that the
following categories of actions have no significant effect on the human
environment and are, therefore, categorically excluded from the
preparation of environmental impact statements and environmental
assessments except where extraordinary circumstances as defined in
paragraph (d)(5) of this section exist. If the action is of an
emergency nature as described in section 316 of the Stafford Act (42
U.S.C. 5159), it is statutorily excluded and is noted with [SE].
Paragraphs (c)(2) (i) through (x) of this section address
administrative actions and paragraphs (c)(2) (xi) through (xxi) of this
section relate to emergency and other actions.
(i) Administrative actions such as personnel actions, travel,
procurement of supplies, etc., in support of normal day to day
activities and disaster related activities;
(ii) Preparation, revision, and adoption of regulations,
directives, manuals, and other guidance documents related to actions
which qualify for categorical exclusions;
(iii) Studies that involve no commitment of resources other than
manpower and associated funding;
(iv) Inspection and monitoring activities, granting of variances,
and actions to enforce Federal, state, or local codes, standards or
regulations;
(v) Training activities and both training and operational exercises
utilizing existing facilities in accordance with established procedures
and land use designations;
(vi) Procurement of goods and services for support of day-to-day
and emergency operational activities, and the storage of goods other
than hazardous materials, so long as storage occurs on previously
disturbed land or in existing facilities;
(vii) The acquisition of properties under any applicable authority
when the acquisition is from a willing seller, the buyer coordinated
acquisition planning with affected authorities, and the acquired
property will be dedicated in perpetuity to uses that are compatible
with open space, recreational, or wetland practices.
(viii) Acquisition of unimproved real property not related to
specific facility plans or when necessary to protect the interests of
FEMA in advance of final project approval; (This categorical exclusion
applies only to the acquisition. Any subsequent use of the property for
a facility or project must be considered under this part without regard
to ownership of the real property);
(ix) Acquisition or lease of existing facilities where planned uses
generally conform to past use or local land use requirements;
(x) Transfer of administrative control of FEMA real property to
another Federal agency;
(xi) Acquisition, installation, or operation of utility and
communication systems that use existing rights-of-way, distribution
systems, or facilities;
(xii) Routine maintenance, repair, and grounds-keeping activities;
(xiii) Planting of indigenous vegetation;
(xiv) Demolition of structures and/or disposal of uncontaminated
structures and other improvements for removal to permitted off-site
locations;
(xv) Physical relocation of individual structures to previously
disturbed or graded lots in existing developed areas with substantially
completed infrastructure;
(xvi) Granting of community-wide exceptions for floodproofed
residential basements meeting the requirements of 44 CFR 60.6(c) under
the National Flood Insurance Program;
(xvii) Repair, reconstruction, restoration, elevation, retrofiting,
or replacement of any facility in a manner that substantially conforms
to the preexisting design, function, and location; [SE, in part]
(xviii) Improvements or upgrading to current codes and standards of
existing facilities and construction of hazard mitigation measures when
those actions are in existing developed areas with substantially
completed infrastructure, and when those actions do not alter function,
system capacity, or land use; provided the operation of the completed
project will not, of itself, have an adverse effect on the quality of
the human environment;
(xix) Actions conducted within enclosed facilities where all
airborne emissions, waterborne effluent, external radiation levels,
outdoor noise, and solid and bulk waste disposal practices are in
compliance with existing Federal, state, and local laws and
regulations;
(xx) The following planning and administrative activities in
support of emergency and disaster response and recovery:
(A) Activation of the Emergency Support Team and convening of the
Catastrophic Disaster Response Group at FEMA headquarters;
(B) Activation of the Regional Operations Center and deployment of
the Emergency Response Team, in whole or in part;
(C) Deployment of Urban Search and Rescue teams;
(D) Situation Assessment including ground and aerial
reconnaissance;
(E) Information and data gathering and reporting efforts in support
of emergency and disaster response and recovery and hazard mitigation;
and
(xxi) The following emergency and disaster response, recovery and
hazard mitigation activities pursuant to the Stafford Act:
(A) General Federal Assistance (Sec. 402); [SE]
(B) Essential Assistance (Sec. 403); [SE]
(C) Debris Removal (Sec. 407) [SE]
(D) Temporary Housing (Sec. 408), except locating multiple mobile
homes or other readily fabricated dwellings on sites, other than
private residences, not previously used for such purposes;
(E) Unemployment Assistance (Sec. 410);
(F) Individual and Family Grant Programs (Sec. 411), except to the
extent that grants will be used for restoring, repairing or building
private bridges, or purchasing mobile homes or other readily fabricated
dwellings;
(G) Food Coupons and Distribution (Sec. 412);
(H) Food Commodities (Sec. 413);
(I) Legal Services (Sec. 415);
(J) Crisis Counseling Assistance and Training (Sec. 416);
(K) Community Disaster Loans (Sec. 417);
(L) Emergency Communications (Sec. 418);
(M) Emergency Public Transportation (Sec. 419);
(N) Fire Suppression Grants (Sec. 420); and
(O) Federal Emergency Assistance (Sec. 502) [SE].
(3) Extraordinary circumstances. If extraordinary circumstances
exist within an area affected by an action, such that an action that is
categorically excluded from NEPA compliance may have a significant
adverse environmental impact, an environmental assessment shall be
prepared. Extraordinary circumstances that may have a significant
environmental impact include:
(i) Greater scope or size than normally experienced for a
particular category of action;
(ii) Actions with a high level of public controversy;
(iii) Potential for degradation, even though slight, of already
existing poor environmental conditions;
(iv) Employment of unproven technology with potential adverse
effects or actions involving unique or unknown environmental risks;
(v) Presence of endangered or threatened species or their critical
habitat, archaeological remains, or other protected resources;
(vi) Presence of hazardous or toxic substances;
(vii) Actions with the potential to adversely affect special status
areas or other critical resources such as
[[Page 39698]]
wetlands, coastal zones, wildlife refuge and wilderness areas, wild and
scenic rivers, sole or principle drinking water aquifers;
(viii) Potential for adverse effects on health or safety; and
(ix) Potential to violate a Federal, State, local or tribal law or
requirement imposed for the protection of the environment.
(4) Documentation. The Regional Director will prepare and maintain
an administrative record of each proposal that is determined to be
categorically excluded from the preparation of an environmental impact
statement or an environmental assessment.
(5) Revocation. The Regional Director shall revoke a determination
of categorical exclusion and shall require a full environmental review
if, subsequent to the granting of an exclusion, the Regional Official
determines that due to changes in the proposed action or in light of
new findings, the action no longer meets the requirements for a
categorical exclusion.
(6) Changes to the list of exclusion categories. (i) The FEMA list
of exclusion categories will be continually reviewed and refined as
additional categories are identified and experience is gained in the
categorical exclusion process. An office, directorate, or
administration of FEMA may, at any time, recommend additions or changes
to the FEMA list of exclusion categories.
(ii) Offices, directorates, and administrations of FEMA are
encouraged to develop additional categories of exclusions necessary to
meet their unique operational and mission requirements.
(iii) If an office, directorate, or administration of FEMA proposes
to change or add to the list of exclusion categories, it shall first:
(A) Obtain the approval of the Environmental Officer and FEMA's
Office of the General Counsel; and
(B) Publish notice of such proposed change or addition in the
Federal Register at least 60 days before the effective date of such
change or addition.
(e) Actions that normally require an environmental assessment. When
a proposal is not one that normally requires an environmental impact
statement and does not qualify as a categorical exclusion, the Regional
Director shall prepare an environmental assessment.
Dated: July 28, 1995.
Harvey G. Ryland,
Deputy Director.
[FR Doc. 95-19136 Filed 8-2-95; 8:45 am]
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