National Environmental Policy Act Implementing Procedures and Executive Order 12114 Categorical Exclusions, 4306-4313 [2017-00553]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Notices]
[Pages 4306-4313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00553]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket Number: NOAA-HQ-2016-0145]
RIN 0648-XF137


National Environmental Policy Act Implementing Procedures and 
Executive Order 12114 Categorical Exclusions

AGENCY: National Oceanic and Atmospheric Administration, U.S. 
Department of Commerce.

ACTION: Notice of availability.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
publishes this notice to notify the public that NOAA has finalized 
revisions to the agency's procedures for implementing the National 
Environmental Policy Act (NEPA) and related authorities, as contained 
in the Companion Manual to NOAA Administrative Order NAO 216-6A 
(Companion Manual). Included in the Companion Manual are NOAA's revised 
categorical exclusions (CE) and related extraordinary circumstances. 
This notice provides a summary of the public comments received and the 
agency's responses as well as a summary of changes from the draft to 
the final procedures. The final Companion Manual is available online at 
https://www.nepa.noaa.nepa.gov.

DATES: The revised procedures are effective January 13, 2017.

FOR FURTHER INFORMATION CONTACT: For information regarding NOAA's NEPA 
procedures, contact Katherine Renshaw, NOAA NEPA Coordinator, at 
noaa.nepa@noaa.gov or 301-713-7380.

SUPPLEMENTARY INFORMATION: 

I. Background

    On April 22, 2016, NOAA issued NOAA Administrative Order 216-6A 
(NAO 216-6A), which updated NOAA's policy for compliance with NEPA, the 
CEQ NEPA regulations, and other related authorities, including 
Executive Order (EO) 12114, Environmental Effects Abroad of Major 
Federal Actions; EO 11988, Floodplain Management; and EO 11990, 
Protection of Wetlands. The NOAA Administrative Order authorized the 
development of a Companion Manual entitled Policy and Procedures for 
Compliance with the National Environmental Policy Act and Related 
Authorities (``Companion Manual''). On November, 17, 2016, NOAA 
published a notice in the Federal Register inviting public comments for 
a 30-day period on the draft Companion Manual, which included NOAA's 
revised CEs. After careful consideration of the public comments 
received in response to that notice, and upon further internal review, 
NOAA has decided to finalize the Companion Manual and CEs with some 
minor revisions from the November 17, 2016 draft.

II. Comments Received and NOAA's Responses

    NOAA received comments from private citizens, nongovernmental 
organizations, states and state organizations. All substantive comments 
received and considered are available online at (https://noaa.nepa.gov), 
and on the Regulations.gov Web site (www.regulations.gov) at docket ID: 
[NOAA-HQ-2016-0145]. NOAA has considered all comments received, and

[[Page 4307]]

NOAA's response to the comments is contained below.

A. Comments on NOAA's NEPA Process

    State commenters raised concerns regarding the process of applying 
NEPA to the Federal grant application process. State commenters also 
sought additional criteria for determining whether cumulative and 
secondary impacts will trigger an Environmental Assessment (EA), 
specifically requesting a clear flow chart on the process.
    NOAA appreciates the concerns expressed by these comments and will 
continue to seek ways to improve coordination of environmental review 
requirements as we begin implementing these revised procedures.

B. Comments on Previously Analyzed Activities

    State commenters requested that NOAA develop a CE that ``includes 
projects that have already undergone sufficient environmental review 
under NEPA.''
    NOAA does not agree that a broad CE that would cover all such 
activities would be appropriate. Instead, NOAA would point the 
commenters to section 5 of the Companion Manual that provides guidance 
on how to determine whether existing NOAA NEPA documents adequately 
analyze the impacts of a proposed action; as well as section 6(H) that 
provides guidance on adopting other agency NEPA documents. We believe 
that the processes outlined in those sections that include factors to 
consider and required documentation (including, for example, the 
requirement that NOAA issue its own FONSI when adopting another agency 
EA), are the appropriate processes to use when relying on existing NEPA 
documents, consistent with the Council on Environmental Quality (CEQ) 
regulations and guidance.

C. Comments on Definitions Used in the Companion Manual and CEs

    State commenters requested that NOAA provide definitions for 
frequently used terms including ``minor,'' ``small scale,'' 
``nondestructive,'' and ``substantial.''
    NOAA provided definitions for the terms ``previously disturbed 
ground,'' ``minor,'' ``small scale,'' and ``negligible'' in the 
November 17, 2016 Federal Register notice (81 FR 81067). In order to 
ensure consistent application of its procedures, NOAA determined that 
such definitions should be included in the Companion Manual and will 
add the definitions included in our initial Federal Register notice to 
the glossary at Appendix A of the Companion Manual. NOAA will also add 
definitions for the terms ``short term,'' ``long term,'' and 
``nondestructive,'' to provide further clarity. These additional terms 
will be defined as follows:
    Short-term--refers to a potential impact of short duration, 
relative to the proposed project and the environmental resource. Short-
term impacts occur while the activity is underway, and do not persist 
once the activity ends. Noise produced by temporary construction 
activities is an example of a short-term impact. Long-term--refers to a 
potential impact of long duration, relative to the proposed project and 
the environmental resources. Long-term impacts continue after the 
project has ceased. Permanent impacts that remain after the 
construction phase of a project is an example of a long-term impact.
    Nondestructive--this terms refers to actions that do not result in 
long term or permanent physical alteration of a component of the human 
environment. Passive acoustics, ground penetrating radar, and air 
quality sampling are examples of nondestructive methods to collect 
environmental data.

D. Comments on Individual CEs

A1
    One commenter recommended deleting the phrase ``access to fishery 
resources'' from A1. The commenter notes that actions that change 
access to fishery resources do not necessarily result in environmental 
impacts when there are no changes of any of the other actions listed in 
the CE, i.e., fishing location, timing, effort, authorized gear types, 
or harvest levels.
    We agree, and have removed the phrase ``access to fishery 
resources'' from the text of CE A1.
A5
    State commenters requested that NOAA modify CE A5 so as to include 
minor five-year updates to National Estuarine Research Reserve (NERR) 
management plans relative to boundary expansion based on acquisition of 
property for conservation purposes. The proposed A5 applies to updates 
to NERR management plans, provided that the update does not change NERR 
boundaries.
    Boundary changes will involve areas that fall outside the 
geographic scope of the original Environmental Impact Statement (EIS) 
prepared pursuant to 15 CFR 921.13, and may involve potentially 
significant impacts to additional species or habitats that were not 
considered when the reserve was established. For this reason, NOAA will 
retain the proposed limiting language in the CE in the final 
procedures.
B4
    One comment raised concerns with proposed CE B4. Generally, the 
comment expresses concern that the application of the CE will result in 
a failure to consider the cumulative impacts of activities authorized 
under that CE. Additionally, the commenter is concerned about NOAA's 
decision to include authorizations under both sections 101(a)(5)(A) and 
(D) of the Marine Mammal Protection Act (MMPA) in the same CE, arguing 
that doing so ignores the differences in these authorizations. The 
commenter finally expressed a concern that NOAA has eliminated language 
from the 1999 procedures that had specifically stated that ``if 
authorization under 101(a)(5)(A) does not tier from a programmatic 
environmental review, that action may require an EIS, EA, or CE, based 
on a case-by-case review.''
    NOAA has determined that this CE, by its terms, and in light of the 
requirement to consider extraordinary circumstances, is appropriate and 
would not have the potential for significant impacts. In particular, 
NOAA notes that extraordinary circumstances (l) refers to ``the 
potential for significant cumulative impacts when the proposed action 
is combined with other past, present and reasonably foreseeable future 
actions, even though the impacts of the proposed action may not be 
significant by themselves.'' See Companion Manual for NOAA 
Administrative Order 216-6A at 4-5.
    Additionally, the B4 CE does not ignore the differences between 
101(a)(5)(A) and (D); rather it was crafted to apply to incidental take 
authorizations issued under either provision if they meet the criterion 
of no serious injury or mortality (and are not disqualified under the 
extraordinary circumstances evaluation). While it is true that 
criterion will be satisfied with any authorization issued under section 
101(a)(5)(D), it is also true that in some cases authorizations issued 
under section 101(a)(5)(A) could meet that criterion as well, depending 
on the specified activity. Section 101(a)(5)(A) allows for 
authorization of take by serious injury or mortality but is not only 
for activities involving those effects.
    Finally, NOAA notes that although language specific to the 
application of NEPA to the MMPA process was removed in the revised NEPA 
procedures, generally applicable provisions still apply to MMPA 
authorizations. For example, section 3 of the Companion Manual explains 
how, on a case-by-case basis, to

[[Page 4308]]

determine the proper level of NEPA analysis for an action.
    One comment raises a concern that proposed CE B12 is overly broad 
and requests that NOAA delete the CE. As proposed, B12 would cover 
``issuance of Exempted Fishing Permits (EFP) under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA) and 
Scientific Research Permits (SRP) and other permits for research that 
may impact species regulated under the authority of the MSA and the 
Atlantic Tunas Convention Act (ATCA). This includes permitted research 
of limited size, magnitude or duration with negligible individual or 
cumulative impacts, which requires temporary relief of fishery 
management regulations.''
    NOAA has determined that this CE, by its terms, and in light of the 
requirement to consider extraordinary circumstances, is appropriate and 
would not have the potential for significant impacts. We agree, 
however, that as proposed, CE B12 would benefit from revision for 
clarity to make clear that the limitations described in the proposed 
category apply to all activities under the CE. NOAA will revise B12 in 
the following manner: ``Issuance of Exempted Fishing Permits (EFP), 
Scientific Research Permits (SRP), and other permits for research that 
may impact species regulated under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA) and the Atlantic 
Tunas Convention Act (ATCA). This CE is limited to permits that 
authorize activities of limited size, magnitude or duration, which have 
no potential for significant individual or cumulative impacts.''
C1
    State commenters asked for several areas of clarification regarding 
the application of CE C1 that addresses habitat restoration activities.
    The state commenters requested that NOAA either remove the CE's 
dredge and fill limitation, or provide additional clarity as to the 
application of that limitation. As proposed, C1 is limited to projects 
that ``[do] not require substantial placement of fill or dredging.''
    NOAA believes that the limitation of the CE with respect to 
dredging and placement of fill is appropriate and notes that its 
application will be context dependent. When considering whether 
placement of fill or dredging are ``substantial,'' NOAA will consider 
the volume of the fill to be placed, as well as the context in which it 
would occur to determine that the placement will not have the potential 
to cause significant environmental impacts. Thus, NOAA is not proposing 
any modifications to this CE to address this issue.
    Additionally, the states requested that NOAA further limit covered 
habitat restoration actions to those that transplant only native 
species. The proposed C1 language would limit actions to those that 
``transplant'' only organisms currently or formerly present at the site 
or in its immediate vicinity (if transplant is a component of the 
action). The states expressed concern that without limiting transplant 
to native species that such actions may result in impacts from exotic 
invasive species.
    NOAA has determined that this CE, by its terms, and in light of the 
requirement to consider extraordinary circumstances, is appropriate and 
would not have the potential for significant impacts. In particular, 
NOAA notes that extraordinary circumstance (j) refers to the 
``contribution to the introduction, continued existence, or spread of 
noxious weeds or non-native invasive species known to occur in the area 
or actions that may promote the introduction, growth, or expansion of 
the range of the species.'' See Companion Manual for NOAA 
Administrative Order 216-6A at 4-5. Accordingly, if a proposed action 
to transplant organisms has the potential to result in significant 
impacts due to the potential spread of exotic invasive species, such an 
action may require additional analysis.
    Finally, the states requested further guidance as to the 
applicability of C1 to various restoration activities such as living 
shoreline construction, routine terrestrial restoration activities, and 
stocking fish and associated activities.
    As noted in Appendix E, the examples provided with the CEs are 
intended to be illustrative, but not exhaustive. Thus, omission of a 
particular activity does not mean that such activity could not 
potentially be covered by the CE. In reviewing whether an activity, 
such as a living shoreline construction project would be potentially 
included within C1, NOAA would consider the particular elements of that 
project to determine whether the proposed action fits within the limits 
of the CE.
F3
    State commenters requested clarification as to whether CE F3 
applies to the restoration or repair of buildings of cultural or 
historic significance. Additionally, state commenters sought 
clarification as to whether the CE applies to small-scale construction 
of boat ramps, fishing piers, and observation platforms. Commenters 
note that limitations in F3(b), such as F3(b)(3) that would preclude 
proposed uses of newly constructed facilities that will substantially 
increase the number of marine vessels in the area would potentially 
preclude application to the construction of public access facilities 
such as boat ramps. Finally, one commenter questioned how NOAA will 
determine viewshed impacts.
    NOAA's extraordinary circumstance (e) would require evaluation of 
whether a proposed activity would involve adverse effects on properties 
listed or eligible for listing on the National Register of Historic 
Places authorized by the National Historic Preservation Act of 1966, 
National Historic Landmarks designated by the Secretary of the 
Interior, or National Monuments designated through the Antiquities Act 
of 1906; Federally recognized tribal and Native Alaskan lands, cultural 
or natural resources, or religious or cultural sites that cannot be 
resolved through applicable regulatory processes. See Companion Manual 
for NOAA Administrative Order 216-6A at 4-5.
    With respect to the construction of public access facilities, NOAA 
notes that such activities are covered explicitly under F3(c), and not 
F3(b). Thus, the limitations that the commenters are concerned with 
would not be applicable to the construction of public access facilities 
such as boat ramps, docks, or observation platforms. Those projects are 
potentially allowable under the CE so long as the proposed activity is 
(1) small-scale and nondestructive; and (2) is consistent with 
applicable right-of-way conditions and approved land use plans. NOAA 
notes that there is a typographical error in the proposed CE that 
included an ``and'' following F3(c)(2), which may be confusing, and has 
corrected that error.
    As discussed above, NOAA is adding several additional definitions 
to the handbook, including ``nondestructive.'' NOAA does not believe 
that it is necessary to make any modifications to the CE to exempt 
small scale construction of public access facilities such as boat 
ramps, fishing piers, and observation platforms as such activities are 
explicitly covered by F3(c), and included as examples of activities 
covered by the CE. As described in our definitions section, we believe 
that it is appropriate to define small scale relative to the potential 
impacts of the project, rather than with respect to the funding level 
involved.
    Finally, with respect to viewshed impact evaluation, NOAA's staff 
will rely upon their professional expertise

[[Page 4309]]

and standard practices and procedures to evaluate potential impacts to 
viewsheds. Viewshed analysis, through the use of GIS technology, is 
commonly used by researchers and natural resource managers to assess 
potential visual impacts of development.
F4
    State commenters request that NOAA clarify whether routine grounds 
keeping and landscaping would include native landscaping installation 
or rain gardens and other storm water Best Management Practices.
    As discussed above, when determining whether a particular proposed 
action would be potentially included within a CE, NOAA will consider 
the particular elements of the project to determine its eligibility. 
NOAA does note however, that activities that involve improvements of 
real property may be better categorized under CE F3.
G1
    State commenters request clarification as to whether CE G1 applies 
to the development of community development plans, vulnerability 
assessments, erosion management plans, feasibility studies, and 
engineering/design plans for restoration projects.
    G1 includes routine administrative actions such as development, 
establishment, and revisions to documents including, but not limited to 
interagency agreements, memoranda of understanding, memoranda of 
agreement, cooperative agreements and university agreements. As noted 
in Appendix E, the examples provided with the CEs are intended to be 
illustrative, but not exhaustive. Thus, omission of a particular 
activity does not mean that such activity could not potentially be 
covered by the CE. NOAA will evaluate proposed actions on a case-by-
case basis to determine whether they are appropriately addressed by the 
CE.
H4
    State commenters request clarification as to whether the 
acquisition of land intended for habitat restoration, including removal 
of invasive plant species or off-site native plants/trees would be 
included within CE H4. Commenters additionally request the development 
of a new CE to explicitly cover tree removal activities.
    CE H4 applies to the acquisition of real property that is not 
acquired through condemnation of a lease interest, and will not result 
in significant change in use and does involve construction or 
modification. Accordingly, so long as the acquisition is done in 
accordance with the terms of the CE, and upon review by NOAA's NEPA 
professional staff, acquisition of land intended for habitat 
restoration may potentially be covered. NOAA notes that one of the 
examples provided of activities covered by the CE includes funding for 
land acquisition under the Coastal Zone Management Act (CZMA) and Fish 
and Wildlife Conservation Act (FWCA)to purchase land (submerged or not 
submerged) or interests in land that includes but is not limited to 
conservation easements, for purposes that do not involve construction 
or modification.
    With respect to the request for the development of an additional CE 
to specifically cover tree removal, NOAA does not currently have the 
experience to support expanding the CE to include such projects, but 
this may change as NOAA gains experience over time.

III. Additional Changes to Companion Manual and Categorical Exclusions

    In addition to revisions to CEs based on its consideration of 
public comments, NOAA further reviewed the proposed CEs and determined 
that certain CEs would benefit from revisions that clarified the scope 
and applicability of the CE, specifically the limitations described in 
the text of the CE to ensure it is only applied to activities with no 
potential for significant effects on the environment under normal 
circumstances. Internal discussions also resulted in many instances in 
the addition or revision of examples provided for the CEs for the 
benefit of NOAA NEPA practitioners. Additionally, NOAA identified 
typographical and grammatical errors and corrected those errors. This 
section explains the substantive revisions NOAA made to its proposed 
CEs and the rationale for those revisions.
E3
    NOAA is adding two additional examples of activities that fit 
within this category: ``use of mobile platforms (e.g., ships, aircraft, 
balloons, vehicles) to study biological, chemical, or physical 
processes;'' and ``collection of cultural and environmental data to 
find and assess archaeological resources.''
E4
    NOAA has made minor modifications to the text of E4 following 
internal discussions with subject matter experts in order to ensure 
that the category of activities is sufficiently limited. The revised 
text is as follows: ``Activities that remotely survey or observe living 
resources in the field using non-invasive techniques, which have little 
to no potential to adversely affect the environment or interfere with 
organisms or habitat.'' NOAA has also slightly modified one of the 
examples provided to make clear that electronic monitoring activities 
under this category are limited to deployment of non animal-borne 
devices.
E5
    NOAA has made minor modifications to the text of E5 following 
internal discussions with subject matter experts in order to ensure 
that the category of activities is sufficiently limited. The revised 
text is as follows: ``Activities involving invasive techniques or 
methods that are conducted for scientific purposes, when such 
activities are conducted in accordance with all applicable provisions 
of the Endangered Species Act, Marine Mammal Protection Act, Migratory 
Bird Treaty Act, and Magnuson-Stevens Fishery Conservation and 
Management Act. Such activities will be limited to impacting living 
resources on a small scale relative to the size of their populations, 
and limited to methodologies and locations to ensure that there are no 
long-term, adverse ecosystem impacts.''
E6
    NOAA made a minor modification to the text of E6 to improve 
internal consistency. The text of the revised CE is as follows: 
``Research that involves the development and testing of new and 
modified fishing gear and technology in order to reduce adverse effects 
from fishing gear on non-target species, and is limited in size, 
magnitude or duration with no potential for significant individual or 
cumulative impacts.''
E7
    Based on internal discussions on proposed CE E7, NOAA has revised 
the text of the CE to remove the references to fishing vessels and 
dockside as locations for the collection of data and biological 
samples. These terms were intended to be broad and to encompass any 
number of locations, including, for example, on fishing vessels, on 
motherships, in processing plants, dockside, and shoreside. However, 
that broad scope might not have been obvious to readers on the face of 
the proposed CE, and including the terms ``fishing vessels'' and 
``dockside'' may have unintentionally suggested a narrower scope than 
what was intended. Therefore, we are removing those terms from the text 
of the CE and leaving the CE to broadly encompass data and biological 
samples collected as part of

[[Page 4310]]

previously authorized commercial and/or recreational fishing 
activities. This change does not change the intended scope of the 
proposed CE, but only makes the scope of the CE clearer for users and 
the public. In addition, we have revised the first example under this 
CE to add ``Collecting data from'' before ``observer coverage onboard 
commercial and recreational fishing vessels.'' This change is being 
made to make it more explicit that the example is referring only to the 
collection of data through previously authorized observer coverage, and 
nothing else related to observer coverage. This CE does not cover 
observer coverage requirements onboard commercial or recreational 
fishing vessels, which are generally addressed through fishery 
management plans or regulations for the fishery for which observer 
coverage is being implemented.
E8
    NOAA made a minor modification to the text of E8 following internal 
discussions with subject matter experts to ensure that the scope of the 
CE correctly described the activities undertaken and funded by NOAA. 
The text of the revised CE is as follows: ``Biological, chemical, food 
production, ecological, or toxicological research conducted in closed 
system mesocosm/aquaculture facilities that are conducted according to 
recommended protocols that provide containment and disposal of waste, 
chemicals, toxins, non-native species, etc., in compliance with 
established Federal and state regulatory guidelines, and best 
management practices.''

IV. NOAA Categorical Exclusions

    The following series of CEs includes actions that may be 
implemented either directly by NOAA or by the recipient of a financial 
assistance award. The activities contemplated in the series of CEs have 
been evaluated and found not to have individual or cumulative 
significant impacts on the human environment, whether implemented by a 
grantee through a financial assistance award or directly implemented by 
NOAA. These CEs can be found as appendix E to the Companion Manual, 
along with illustrative examples for many of the categories.

Trust Resource Management Actions

    [A1]. ``An action that is a technical correction or a change to a 
fishery management action or regulation, which does not result in a 
substantial change in any of the following: fishing location, timing, 
effort, authorized gear types, or harvest levels.''
    [A2]. ``Preparation of a recovery plan pursuant to section 4(f)(1) 
of the ESA. Such plans are advisory documents that provide consultative 
and technical assistance in recovery planning and do not implement 
site-specific or species-specific management actions. However, 
implementation of specific tasks identified in a recovery plan may 
require an EA or EIS depending on the nature of the action.''
    [A3.] ``Temporary fishery closures or extensions of closures under 
Section 305(c)(3)(C) of the Magnuson-Stevens Fishery Conservation and 
Management Act to ensure public health and safety.''
    [A4.] ``Minor updates to existing national marine sanctuary 
management plans. This CE does not apply to sanctuary designations, 
expansions, changes in terms of designation, or new sanctuary 
management plans.''
    [A5.] ``Updates to existing National Estuarine Research Reserve 
(NERR) management plans, provided that the update does not change NERR 
boundaries or add or significantly change allowable uses, uses 
requiring a permit, or restrictions on uses. This CE does not apply to 
new NERR management plans, or to the execution of any specific action 
subsequently funded to support the updated NERR management plan.''
    [A6.] ``Review and approval of changes to state coastal management 
programs under the Coastal Zone Management Act (CZMA) Sec.  306(e) (16 
U.S.C. 1455(e)) and NOAA's regulations at 15 CFR part 923.''

Trust Resource Authorization and Permitting Actions

    [B1.] ``Issuance of permits or permit modifications under section 
10(a)(1)(A) of the ESA for take, import, or export of endangered 
species for scientific purposes or to enhance the propagation or 
survival of the affected species, or in accordance with the 
requirements of an ESA section 4(d) regulation for threatened 
species.''
    [B2.] ``Issuance of permits or permit amendments under section 104 
of the MMPA for take or import of marine mammals for scientific 
research, enhancement, commercial or educational photography or public 
display purposes; and issuance of Letters of Confirmation under the 
General Authorization for scientific research involving only Level B 
harassment.''
    [B3.] ``Issuance of, and amendments to, ``low effect'' Incidental 
Take Permits and their supporting ``low effect'' Habitat Conservation 
Plans under section 10(a)(1)(B) of the ESA.''
    [B4.] ``Issuance of incidental harassment authorizations under 
section 101(a)(5)(A) and (D) of the MMPA for the incidental, but not 
intentional, take by harassment of marine mammals during specified 
activities and for which no serious injury or mortality is 
anticipated.''
    [B5.] ``Issuance of, or amendments to, general permits for 
activities that are included in established permit categories at 15 CFR 
pt. 922 and that meet the regulatory review criteria at 15 CFR pt. 922, 
that limit any potential impacts so that the proposed activity will be 
conducted in a manner compatible with the National Marine Sanctuaries 
Act's primary objective of resource protection.''
    [B6.] ``Issuance of, or amendments to, special use permits for 
activities in a national marine sanctuary that are necessary to either 
establish conditions of access to and use of any sanctuary resource or 
promote public use and understanding of a sanctuary resource and must 
be conducted in a manner that does not destroy, cause the loss of, or 
injure sanctuary resources in accordance with the National Marine 
Sanctuaries Act.''
    [B7.] ``Issuance of or amendments to, authorizations for activities 
allowed by a valid federal, regional, state, local or tribal government 
approval (e.g., leases, permits and licenses) issued after the 
effective date of sanctuary designation or expansion, so long as such 
authorizations are based upon a consideration of the regulatory review 
criteria at 15 CFR pt. 922, and will only result in negligible effects 
to sanctuary resources.''
    [B8.] ``Issuance of, or amendments to certifications for pre-
existing activities authorized by a valid federal, regional, state, 
local, or tribal government approval (e.g., leases, permits and 
licenses) or rights of subsistence use or access in existence on the 
date of the designation or expansion of any national marine sanctuary 
where the Office of National Marine Sanctuaries issues terms and 
conditions that are either ministerial or prescribe avoidance, 
minimization, or mitigation measures designed to ensure negligible 
effects to sanctuary resources.''
    [B9.] ``Issuance of, or amendments to Papah[amacr]naumoku[amacr]kea 
Marine National Monument (as originally established by Presidential 
Proclamation 8031 and named Papah[amacr]naumoku[amacr]kea Marine 
National Monument by Presidential Proclamation 8112) permits for 
activities that are included in established permit categories (50 CFR 
pt. 404) and that meet the regulatory review criteria at (50 CFR 
404.11), that

[[Page 4311]]

limit any potential impacts so that the proposed activity will be 
conducted in a manner compatible with the monument's primary objective 
of resource protection.''
    [B10.] ``Issuance of, or amendments to, 
Papah[amacr]naumoku[amacr]kea Marine National Monument special ocean 
use permits for activities or use of the monument that are engaged in 
to generate revenue or profits for one or more of the persons 
associated with the activity or use, and do not destroy, cause the loss 
of, or injure monument resources.''
    [B11.] ``Issuance of, or amendments to permits or authorizations 
for activities that are conducted within Marine National Monuments 
other than Papah[amacr]naumoku[amacr]kea that are limited in scope so 
that the potential impacts of the proposed activities will be conducted 
in a manner compatible with a monument's primary objective of resource 
protection, and do not destroy, cause the loss of, or injure monument 
resources.''
    [B12.] ``Issuance of Exempted Fishing Permits (EFPs), Scientific 
Research Permits (SRPs), and other permits for research that may impact 
species under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) and the Atlantic Tunas Convention 
Act (ATCA). This CE is limited to permits that authorize activities 
that are limited in size, magnitude or duration with no potential for 
significant individual or cumulative impacts.''

Habitat Restoration Actions

    [C1.] ``Habitat restoration actions, provided that such action: (1) 
transplants only organisms currently or formerly present at the site or 
in its immediate vicinity (if transplant is a component of the action); 
(2) does not require substantial placement of fill or dredging; (3) 
does not involve any removal of debris, excavation, or conditioning of 
soils unless such removal of debris, excavation, or conditioning of 
soils is geographically limited to the impact area such that site 
conditions will not impede or negatively alter natural processes, is in 
compliance with all permit and disposal requirements,), and will not 
impact critical aquifers or recharge areas; and (4) does not involve an 
added risk of human or environmental exposure to toxic or hazardous 
substances, pathogens, or radioactive materials.
    Notes: If applicable, limitations and mitigation measures 
identified in the NOAA Restoration Center Programmatic Environmental 
Impact Statement for Habitat Restoration Actions must be followed. This 
CE includes, but is not limited to, response or restoration actions 
under CERLCA, OPA, or NMSA, if such actions help to restore an 
ecosystem, habitat, biotic community, or population of living resources 
to a determinable preimpact condition prior to the incident leading to 
the response or restoration.''

Additional External Funding

    [D1.] ``Financial activities for the following financial services: 
(1) Loans for purchase, refinancing, or reconstruction of fishing 
vessels and purchase or refinancing of individual fishing quota through 
the Fisheries Finance Program; (2) Deferred tax program provided to 
fishermen to construct, reconstruct, or acquire fishing vessels through 
the Capital Construction Fund Program; and (3) Compensation to 
fishermen for economic and property losses caused by oil and gas 
obstructions on the U.S. Outer Continental Shelf under the Fishermen's 
Contingency Fund.''
    [D2.] ``Provision of a grant, a contract or other financial 
assistance to a State, Fishery Management Council or Marine Fisheries 
Commission under 16 U.S.C. 1881a(d).''

Research Actions

    [E1.] ``Activities conducted in laboratories and facilities where 
research practices and safeguards prevent environmental impacts.''
    [E2.] ``Social science projects and programs, including economic, 
political science, human geography, demography, and sociology studies, 
including information collection activities in support of studies.''
    [E3.] ``Activities to collect aquatic, terrestrial, and atmospheric 
data in a non-destructive manner.''
    [E4.] ``Activities that remotely survey or observe living resources 
in the field using non-invasive techniques, which have little to no 
potential to adversely affect the environment or interfere with 
organisms or habitat.''
    [E5.] ``Activities involving invasive techniques or methods that 
are conducted for scientific purposes, when such activities are 
conducted in accordance with all applicable provisions of the 
Endangered Species Act, Marine Mammal Protection Act, Migratory Bird 
Treaty Act, and Magnuson-Stevens Fishery Conservation and Management 
Act. Such activities will be limited to impacting living resources on a 
small scale relative to the size of their populations, and limited to 
methodologies and locations to ensure that there are no long-term 
adverse ecosystem impacts.''
    [E6.] ``Research that involves the development and testing of new 
and modified fishing gear and technology in order to reduce adverse 
effects from fishing gear on non-target species, and is limited in 
size, magnitude, or duration with no potential for significant 
individual or cumulative impacts.''
    [E7.] ``Collection of data and biological samples as part of 
previously authorized commercial and/or recreational fishing 
activities.''
    [E8.] ``Biological, chemical, food production, ecological, or 
toxicological research conducted in closed system mesocosm/aquaculture 
facilities that are conducted according to recommended protocols that 
provide containment and disposal of waste, chemicals, toxins, non-
native species, etc., in compliance with established Federal and state 
regulatory guidelines, and best management practices.''

Real and Personal Property Improvement, Maintenance, and Construction 
Actions

    [F1.] ``Siting, construction (or modification), and operation of 
support buildings and support structures (including, but not limited 
to, trailers and prefabricated buildings) within or contiguous to an 
already developed area (where active utilities and currently used roads 
are readily accessible).''
    [F2.] ``In-kind replacement of personal property and fixtures and 
other components of real property when such activities do not result in 
a substantial change in the existing construction footprint. In-kind 
replacement includes installation of new components to replace outmoded 
components if the replacement does not result in a substantial change 
to the design capacity, or function of the facility.''
    [F3.] ``(a) Routine repair, maintenance, and improvement of real 
and personal property, where such activities are required to maintain 
and preserve buildings, structures, infrastructures, vehicles, and 
equipment in a condition suitable to be used for its designed purpose.
    (b) New construction, expansion and/or improvement of facilities 
where all of the following conditions are met:
    (1) The site is in a developed area and/or a previously disturbed 
site;
    (2) The structure and proposed use are compatible with applicable 
Federal, Tribal, State, and local planning and zoning standards and 
consistent with Federally approved State coastal management programs 
and the National Historic Preservation Act;

[[Page 4312]]

    (3) The proposed use will not substantially increase the number of 
motor vehicles, marine vessels, or aircraft at the facility or in the 
area;
    (4) The site and scale of construction or improvement are 
consistent with those of existing, adjacent, or nearby buildings;
    (5) The construction or improvement will not result in uses that 
exceed existing infrastructure capacities (e.g., electrical, roads, 
sewer, water, parking);
    (6) The construction or improvement will not result in operational 
uses that adversely affect the surrounding community (e.g., noise); and
    (7) The community-valued view sheds are not adversely affected.
    (c) Installation, repair, maintenance, and enhancement of public 
access facilities and infrastructure, if the activity:
    (1) Is small-scale and nondestructive; and
    (2) Is consistent with applicable right-of-way conditions and 
approved land use plans.''
    [F4]. ``Routine groundskeeping and landscaping activities where 
ground disturbance is limited to previously disturbed areas (e.g., 
previously filled paved, or cleared areas).''
    [F5.] ``Installation, operation, maintenance, improvements, repair, 
upgrade, removal, and/or replacement of instruments or instrument 
systems in or on:
    1. An existing structure or object (e.g., tower, antenna, building, 
pier, buoy, terrestrial vehicle, or bridge) or
    2. on previously disturbed (e.g., filled, paved, or cleared) 
ground, or
    3. on undisturbed ground, if the equipment installation, operation, 
and removal will require no or minimal ground disturbance.''
    Microwave/radio communications towers and antennas must be limited 
to 200 feet in height without guy wires. NOAA proposes a new CE to 
cover activities of installing, operating, repairing, maintaining, 
upgrading, removing and/or replacing instruments or instrument systems 
in or on an existing structure or object, or on previously disturbed 
ground or on undisturbed ground that involve either no or minimal 
ground disturbance.
    [F6.] ``The determination that real property is excess to the needs 
of the Agency, when the real property is excessed in conformity with 
General Services Administration procedures or is legislatively 
authorized to be excessed.''
    [F7.] ``The disposal, demolition or removal of real property and 
related improvements, buildings and structures, including associated 
site restoration, and the disposal of personal property and debris in 
accordance with all applicable agency procedures and legal 
requirements.''

Operational Actions

    [G1.] ``Routine administrative actions such as (1) program 
planning, direction and evaluation, (2) administrative tasks, services 
and support including personnel and fiscal management, advisory 
services, document and policy preparation, and records management, and 
(3) development, establishment, and revisions to documents including, 
but not limited to interagency agreements, memoranda of understanding, 
memoranda of agreement, cooperative agreements, and university 
agreements. This CE does not include any associated activities proposed 
in these documents beyond the administrative task of creating and 
establishing the document. Actions subsequently funded by or undertaken 
pursuant to the approved documents may require additional NEPA review 
at the time those actions are proposed.''
    [G2.] ``Routine movement of mobile assets, such as vessels and 
aircraft, for homeport reassignments or repair/overhaul, where no new 
support facilities are required.''
    [G3.] ``Topographic, bathymetric, land use and land cover, 
geological, hydrologic mapping, charting, and surveying services that 
do not involve major surface or subsurface land disturbance and involve 
no permanent physical, chemical, or biological change to the 
environment.''
    [G4.] ``Basic environmental services and monitoring, such as 
weather observations, communications, analyses, and predictions; 
environmental satellite operations and services; digital and physical 
environmental data and information services; air and water quality 
observations and analysis, and IT operations. All such activities must 
be conducted within existing facilities.''
    [G5.] ``Enforcement operations conducted under legislative mandate 
such as the MSA, ESA, MMPA, the Lacey Act Amendments of 1981 (Lacey), 
and/or the National Marine Sanctuaries Act. This does not include 
bringing judicial or administrative civil or criminal enforcement 
actions which are outside the scope of NEPA in accordance with 40 CFR 
1508.18(a).''
    [G6.] ``Actions that change the NEXRAD radar coverage patterns that 
do not lower the lowest scan elevation and do not result in direct 
scanning of previously non-scanned terrain by the NEXRAD main beam.''
    [G7.] ``Preparation of policy directives, rules, regulations, and 
guidelines of an administrative, financial, legal, technical, or 
procedural nature, or for which the environmental effects are too 
broad, speculative or conjectural to lend themselves to meaningful 
analysis and will be subject later to the NEPA process, either 
collectively or on a case-by-case basis.''
    [G8.] ``Activities that are educational, informational, or advisory 
to other agencies, public and private entities, visitors, individuals, 
or the general public, including training exercises and simulations.''
    [G9.] ``Actions taken to identify, determine sources of, assess, 
prevent, reduce, remove, dispose, or recycle marine debris when removal 
is undertaken in a non-destructive manner and actions are in accordance 
with Federal, State, and local laws and regulations for environmental 
protection, and where all relevant regulatory consultation, and/or 
permit requirements have been satisfied.''

Acquisition and Real Property Actions

    [H1.] ``Procurement of labor, equipment, materials, data and 
software needed to execute mission requirements in accordance with 
applicable procurement regulations, executive orders, and policies. 
This includes, but is not limited to, procurement of mobile and 
portable equipment that is stored in existing structures or 
facilities.''
    [H2.] ``Procurement of space by purchase or lease of or within an 
existing facility or structure in accordance with applicable 
procurement regulations, executive orders, and policies when there is 
no change in the general type of use, no new construction of buildings 
or utilities, and minimal change in design from the previous occupancy 
level.''
    [H3.] ``Outgranting of government-controlled property in accordance 
with applicable regulations, executive orders, and policies to a 
Federal entity for any purpose consistent with the existing land or 
facility use or to a non-Federal entity, when the use will remain 
substantially the same.''
    [H4.] ``Acquisition of real property (including fee simple estates, 
leaseholds, and easements) that is not acquired through condemnation of 
a lease interest, and will not result in significant change in use and 
does not involve construction or modification.''
    [H5.] ``Granting easements or rights of entry to use NOAA 
controlled property for activities that, if conducted by NOAA, could be 
categorically excluded. Grants of easements or rights-of-way for the 
use of NOAA controlled real

[[Page 4313]]

property complementing the use of existing rights-of-way or real 
property use 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 similar utility and 
transportation uses.''
    [H6.] ``Relocation of employees into existing Federally-owned or 
commercially leased office space within the same metropolitan area not 
involving a substantial increase in the number of motor or other 
vehicles at a facility.''
    [H7.] ``Transferring real property to a non-Federal entity, an 
agency other than GSA, as well as to States, local agencies and Indian 
Tribes, including return of public domain lands to the Department of 
the Interior.''

    Dated: January 6, 2017.
Lois J. Schiffer,
General Counsel for the National Oceanic and Atmospheric 
Administration.
[FR Doc. 2017-00553 Filed 1-12-17; 8:45 am]
 BILLING CODE 3510-12-P