Policies and Responsibilities for Implementation of the National Environmental Policy Act Within the Department of the Navy, 12170-12177 [2019-06156]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Navy

[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Proposed Rules]
[Pages 12170-12177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06156]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 775

[Docket No. USN-2018-HQ-0001]
RIN 0703-AB01


Policies and Responsibilities for Implementation of the National 
Environmental Policy Act Within the Department of the Navy

AGENCY: Department of the Navy, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy (DoN) proposes to revise portions 
of its internal regulations that establish the responsibilities and 
procedures for complying with the National Environmental Policy Act 
(NEPA). An agency may determine that certain classes of actions 
normally do not individually or cumulatively have significant 
environmental impacts and therefore do not require further review under 
NEPA. Establishing these categories of activities, called categorical 
exclusions (CATEXs), in the agency's NEPA implementing procedures is a 
way to reduce unnecessary paperwork and delay. This revision clarifies 
what types of activities fall under CATEXs and normally do not require 
additional NEPA analysis.

DATES: Comments must be received by May 1, 2019.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov/. Follow 
the instructions for submitting comments.
    Mail: Department of Defense, Office of the Deputy Chief Management 
Officer, Directorate for Oversight and Compliance, Regulatory and 
Advisory Committee Division, 4800 Mark Center Drive, Mailbox #24, Suite 
08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency 
name, docket number and title for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
internet at https://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. J. Dan Cecchini, Office of the 
Deputy Assistant Secretary of the Navy (Environment), 703-614-1173.

[[Page 12171]]


SUPPLEMENTARY INFORMATION: 

Executive Summary

    This action would revise certain DoN procedures for implementing 
the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et 
seq.). NEPA 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 decision making and to prepare detailed environmental statements 
on recommendations or reports significantly affecting the quality of 
the human environment.
    The proposed rule revises the DoN's implementing regulations, 32 
CFR part 775, that were originally published on August 20, 1990 (55 FR 
33898), as revised on February 23, 2004 (69 FR 8108). The 2004 changes 
revised and added to DoN's list of approved categorical exclusions 
(CATEXs); revised criteria for disallowing the application of listed 
CATEXs (i.e., hereinafter ``extraordinary circumstances'') in which a 
normally excluded action may have a significant environmental effect; 
and assigned certain 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.
    Over time, through study and experience, agencies may identify 
activities--such as routine facility maintenance--that do not need to 
undergo detailed environmental analysis because the activities do not 
individually or cumulatively have a significant effect on the human 
environment. Agencies can define and exclude from further review 
categories of such activities, called CATEXs, in their NEPA 
implementing procedures as a way to reduce unnecessary paperwork and 
delay.

Authority for This Regulatory Action

    Authorities for this rule are 5 U.S.C. 301, NEPA, and 40 CFR parts 
1500-1508. Under 5 U.S.C. 301, the head of a military department may 
prescribe regulations for the government of the department, the conduct 
of its employees, the distribution and performance of its business, and 
the custody, use, and preservation of its records, papers, and 
property. As noted above, NEPA requires Federal agencies to analyze 
their proposed actions to determine if they could have significant 
environmental effects. The White House Council on Environmental Quality 
(CEQ) implementing regulations (40 CFR 1507.3) require Federal agencies 
to adopt supplemental NEPA implementing procedures, including agency-
specific CATEXs, either in the form of agency policy or a regulation, 
and to provide opportunity for public review prior to adoption.

Expected Impact of the Proposed Rule

    This rule revises internal procedures allowing for consistent 
implementation across the DoN for its responsibilities under NEPA. 
Promulgating CATEXs will reduce government spending on compliance as 
well as shorten project approval timelines for those activities which 
do not need detailed environmental analysis. The DoN currently prepares 
approximately 3,000 CATEXs annually (approximately 2,000 by the U.S. 
Navy and approximately 1,000 by the U.S. Marine Corps).

Development Process

    In 2015, the Office of the Deputy Assistant Secretary of the Navy 
for Environment directed a review of 32 CFR 775.6(e) and (f), which 
identify the DoN's criteria for excluding application of listed CATEXs 
and list the DoN's CATEXs, respectively. A review panel (hereinafter 
``panel'') was formed to provide administrative support and expertise 
to inform the efforts. The professionals comprising the panel were 
current DoN environmental practitioners with numerous years of NEPA 
planning and compliance experience, including the preparation of 
environmental documentation such as CATEX decision documents, 
environmental assessments (EAs), environmental impact statements 
(EISs), findings of no significant impact, and records of decision. The 
panel was supported by a legal working group comprised of experienced 
environmental law attorneys from the DoN's Office of the General 
Counsel and Office of the Judge Advocate General with advanced 
education and experience providing legal and policy advice to Federal 
agency decision makers, managers, and practitioners on environmental 
planning and compliance responsibilities.
    The panel reviewed and analyzed the supporting rationale, scope, 
applicability, and wording of each existing CATEX and extraordinary 
circumstance set forth in 32 CFR 775.6(e) and (f). The panel developed 
and deliberated on each proposed new CATEX and extraordinary 
circumstance change, balancing the resulting increase in administrative 
efficiency in NEPA implementation and compliance against the risk of 
misinterpretation and misapplication. During that process, numerous 
environmental professionals, representing various constituencies within 
the DoN, supported the panel's review and participated in meetings and 
conference calls over the course of 18 months to reach agreement on 
this proposed rule.
    In accordance with CEQ's regulations and its 2010 CATEX guidance, 
``Establishing, Applying, and Revising Categorical Exclusions under the 
National Environmental Policy Act,'' the DoN substantiated the proposed 
new and revised CATEXs by reviewing EA and EIS analyses to identify the 
environmental effects of previously implemented actions; benchmarking 
other Federal agencies' experiences; and leveraging the expertise, 
experience, and judgment of DoN professional staff. The panel noted 
that other Department of Defense (DoD) entities and numerous other 
Federal agencies have CATEXs for activities that are similar in nature, 
scope, and impact on the human environment as those undertaken by the 
DoN. The panel reviewed many of those CATEXs before proposing changes 
to 32 CFR 775.6(e) and (f).
    In addition, the panel recognized that all Federal agencies, 
including the DoD as a whole, with very few limitations, must meet the 
same requirements to consider environmental issues in decisionmaking 
with an ultimate goal to protect the environment. Based on experience 
with, or on behalf of, other Federal agencies, the panel determined 
that the characteristics of many of the DoN's activities were not 
significantly different from those performed by other Federal agencies, 
including other entities within the DoD.
    The CEQ was integral in the process to ensure that proposed changes 
to the DoN's CATEXs meet NEPA requirements. The DoN provided the CEQ 
with proposed draft changes and justifications for each proposed change 
to 32 CFR 775.6(e) and (f). Many of the changes that the DoN is 
proposing are administrative in nature to clarify application of a 
particular CATEX. On July 7, 2017, the CEQ concurred with the DoN 
proceeding to formal rulemaking on these proposed changes.

Proposed Revisions Generally

    Through the development process discussed in this preamble, the 
panel determined that the proposed changes to DoN's CATEXs and 
extraordinary circumstances encompass activities that normally do not 
individually or cumulatively have a significant impact on the human 
environment. Only the

[[Page 12172]]

provisions discussed below are proposed for substantive revision. In 
addition, minor clarifications that do not change the CATEX meaning are 
proposed.

Proposed Revisions to Extraordinary Circumstances [32 CFR 775.6(e)]

    The DoN's criteria for disallowing the application of listed CATEXs 
are set forth in 32 CFR 775.6(e). This proposed rule substantially 
revises paragraph (e) to provide specific introductory guidance 
regarding those circumstances under which use of a CATEX is 
inappropriate, reflecting a determination by the DoN that further 
environmental analysis is needed. Under this proposed change, a 
determination whether a CATEX is appropriate for a proposed action, 
even if one or more extraordinary circumstances are present, should 
focus on the action's potential effects and consider the environmental 
significance of those effects in terms of both context (i.e., 
consideration of the affected region, interests, and resources) and 
intensity (i.e., severity of impacts). This proposed change provides 
discretion that is missing from the current regulation and which can be 
applied when considering whether a CATEX is appropriate. This proposed 
change mirrors the extraordinary circumstances introductory language 
contained in National Oceanic and Atmospheric Administration (NOAA) and 
U.S. Forest Service NEPA regulations.
    The proposed rule adds a new paragraph (e)(2) which states that if 
a decision is made to apply a CATEX to a proposed action that is more 
than administrative in nature, the decision must be formally documented 
per existing Navy and Marine Corps policy. For actions with a 
documented CATEX where one or more extraordinary circumstances are 
present, a copy of the executed CATEX decision document (e.g., Record 
of CATEX or Decision Memorandum) must be forwarded for review to Navy 
Headquarters or Marine Corps Headquarters, as appropriate, before the 
action is implemented. This new requirement to send the documented 
CATEX to headquarters for review will end two years from the date of 
the final rule implementing the DoN's revised extraordinary 
circumstances and CATEXs.
    The proposed rule would amend and re-number current paragraphs 
(e)(1) through (5) as (e)(1)(i) through (v). The proposed rule would 
not revise paragraphs (e)(1) through (4) but they would be re-numbered 
(e)(1)(i) through (iv). Regarding the enumerated extraordinary 
circumstances set forth in paragraphs (e)(5)(i) through (v) (that would 
be re-numbered (e)(1)(v)(A) through (E)), the proposed rule revises 
paragraphs (e)(5)(i), (iii), and (iv) (and would re-number them 
(e)(1)(v)(A), (e)(1)(v)(C), and (e)(1)(v)(D)). Paragraph (e)(5)(i) 
(which would be renumbered as (e)(1)(v)(A)) would be revised to address 
those actions that, as determined after coordination with subject 
matter experts within the agency and, if appropriate with resources 
agencies (e.g., National Marine Fisheries Service, United States Fish 
and Wildlife Service), would have more than a negligible or 
discountable effect on Federally protected species under the Endangered 
Species Act, or would require issuance of an Incidental Harassment 
Authorization or Letter of Authorization under the Marine Mammal 
Protection Act. The current regulation only addresses those actions 
which have an adverse effect on Federally listed endangered or 
threatened species or marine mammals without consideration of the 
degree of effect. This change would provide flexibility to use a CATEX 
even if impacts under the Endangered Species Act or Marine Mammal 
Protection Act may be adverse. For the Endangered Species Act, this 
change mirrors language contained in NOAA's NEPA regulations. For the 
Marine Mammal Protection Act, this change links the trigger for this 
existing extraordinary circumstance to the specific regulatory 
threshold language of Marine Mammal Protection Act guidelines. 
Specifically, the panel determined that the use of the term ``adverse 
effect'' in the current regulation is incongruent with the prevailing 
resource management handbooks and guidelines of the National Marine 
Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service 
(USFWS).
    Regarding those actions adversely affecting the size, function, or 
biological value of wetlands, paragraph (e)(5)(iii) (to be re-numbered 
as (e)(1)(v)(C)) is revised to clarify that general permits are issued 
on a nationwide, regional, or state basis for particular categories of 
activities. This administrative change clarifies, but does not change 
the effect of, the existing extraordinary circumstance.
    Regarding those actions having an adverse effect on archaeological 
resources or resources listed or determined to be eligible for listing 
on the National Register of Historic Places (including, but not limited 
to, ships, aircraft, vessels, and equipment), paragraph (e)(5)(iv) (to 
be re-numbered as (e)(1)(v)(D)) is revised to include those 
circumstances where compliance with Section 106 of the National 
Historic Preservation Act has not been resolved through an agreement 
executed between the DoN and the appropriate historic preservation 
office and other appropriate consulting parties. This proposed change 
will eliminate the need to prepare an EA for an action whose sole 
impact is tied to a potential adverse impact on a historic structure. 
This approach is consistent with guidance contained in the March 2013 
CEQ and Advisory Council on Historic Preservation document ``NEPA and 
NHPA: A Handbook for Integrating NEPA and Section 106.''

Proposed Revisions to Categorical Exclusions [32 CFR 775.6(f)]

    32 CFR 775.6(f)(1) through (45) lists the 45 CATEXs currently 
promulgated by the DoN. This proposed rule would revise six CATEXs 
(i.e., #8, #11, #14, #32, #34, and #36), delete one CATEX (#15), and 
add five new CATEXs. CATEX #32 would be relocated and re-numbered as 
CATEX #29. Finally, current CATEXs #1 through #45 would be re-numbered 
as #1 through #44 as a result of the proposed deletion of CATEX #15 and 
re-numbering of CATEX #32, and the proposed new CATEXs would be 
numbered as #45 through #49.
    CATEX #8 (32 CFR 775.6(f)(8)): This proposed change would add 
ranges to the list of items subject to routine repair and maintenance. 
While the DoN regularly encounters routine repair and maintenance 
requirements on its ranges, this proposed revision would cover the 
repair and maintenance of existing range assets; it would not cover the 
conversion to a new range capability or a change in the use of the 
range (e.g., adding additional infrastructure to support new targets). 
The panel also determined that the use of new examples such as 
``general building/structural repair, landscaping, and grounds 
maintenance'' would further clarify the types of activities covered by 
this CATEX.
    CATEX #11 (32 CFR 775.6(f)(11)): This proposed rule would add 
submarines and ground assets to the list of mobile asset examples to 
clarify application of this CATEX. The panel added the term ``home 
basing'' to provide the appropriate terminology for aircraft or ground 
asset reassignment not covered by the term ``homeporting,'' which is 
used only in reference to ship or vessel reassignments. The panel 
determined that the use of new examples such as temporary reassignments 
and dismantling or disposal in this CATEX would further clarify 
application of this CATEX. CATEX #14 (32 CFR 775.6(f)(14)) and

[[Page 12173]]

CATEX #15 (32 CFR 775.6(f)(15)): This proposed change would combine 
CATEX #14 and CATEX #15 into a single CATEX #14.
    CATEX #32 (32 CFR 775.6(f)(32)): This proposed change would delete 
``renewals'' from the current CATEX, because renewal actions are 
covered by CATEX #31 (to be re-numbered as CATEX #30). Furthermore, the 
proposed rule would re-number existing CATEX #32 as CATEX #29 so that 
initial real estate in grants would precede ``renewals'' in the CATEX 
list.
    CATEX #34 (32 CFR 775.6(f)(34)): The proposed rule would revise 
CATEX #34 (to be re-numbered as #33) to cover new construction that is 
similar to or compatible with existing land use (i.e., site and scale 
of construction are consistent with those of existing adjacent or 
nearby facilities) 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 and runoff within existing 
handling capacities). As an example, for the proposed construction of a 
building in a previously disturbed cantonment area where this would be 
the first building of its type, as long as the building is generally 
consistent with the designated land use of the area, this revised CATEX 
could be applied (assuming no other extraordinary circumstances). The 
test for whether this CATEX can be applied should focus on whether the 
proposed action generally fits within the designated land use of the 
proposed site. This proposed change would clarify the term ``similar to 
existing land use'' in the current CATEX, which the panel determined is 
often confusing and prone to overly narrow interpretation.
    CATEX #36 (32 CFR 775.6(f)(36)): The proposed rule would revise 
CATEX #36 (to be re-numbered as #35) by adding ``modernization'' and 
``repair'' to clarify application of this CATEX. The panel felt it was 
important to include these terms to support energy resilience, 
alternative energy, and renewable energy projects given the DoN's 
emphasis on energy management throughout the Department.

Proposed New Categorical Exclusions

    CATEX #45: (32 CFR 775.6(f)(45)): With the re-numbering of current 
CATEX #45 as #44, this proposed new CATEX would cover natural resources 
management actions undertaken or permitted pursuant to agreement with 
or subject to regulation by Federal, State, or local organizations 
having management responsibility and authority over the natural 
resources in question, including, but not limited to, prescribed 
burning, invasive species actions, timber harvesting, and hunting and 
fishing during seasons established by state authorities pursuant to 
their State fish and game management laws. This proposed new CATEX 
would require that the natural resources management actions must be 
consistent with the overall management approach of the property as 
documented in an Integrated Natural Resources Management Plan (INRMP) 
or other applicable natural resources management plan. This is a 
reinstatement of a former CATEX #27 that was eliminated as unnecessary 
by the DoN in 2004 (69 FR 8108, 8109) that covered routine maintenance 
of timber stands, including down-wood firewood permits, hazardous tree 
removal, and sanitation salvage. It was assumed at that time that 
forest management activities would occur under the auspices of an INRMP 
for which an EA or EIS had been prepared and a CATEX would therefore be 
unnecessary. (A memorandum dated August 12, 1998, from the Assistant 
Secretary of the Navy for Installations and Energy to the Vice Chief of 
Naval Operations and Assistant Commandant of the Marine Corps required 
an EA or EIS be prepared for INRMPs.) The DoN prepares INRMPs on its 
installations and ranges that the USFWS and the appropriate State fish 
and wildlife agency review and approve. In accordance with DoN policy, 
a NEPA review (typically an EA) is conducted for each INRMP. Individual 
projects may receive additional, site-specific NEPA review, and 
existing CATEX #8 or #42 may apply. Individual projects are typically 
conducted in a single season, are limited in geographic scope, and 
benefit native vegetation and species habitat. Any indirect impacts to 
soils, wetlands, or riparian habitat should be minor and temporary and 
should result in an overall beneficial effect on the natural resources 
being managed. Review by the DoN of previous actions, NEPA analyses, 
and other agency CATEXs shows that no individually or cumulatively 
significant effects are typically attributable to the types of 
activities included in the proposed reinstatement of this CATEX. In 
reinstating this CATEX, the panel noted that INRMP coverage may not be 
robust or detailed enough with respect to certain practices in the 
field (e.g., invasive species control or controlled burns), noting that 
EAs for INRMPs have historically included only general discussions of 
these activities. This reinstated CATEX would cover certain natural 
resources management practices not discussed in detail in an INRMP, but 
which through experience are known to have no significant impacts on 
the environment.
    CATEX #46 (32 CFR 775.6(f)(46)): This proposed new CATEX would 
cover minor repairs in response to wildfires, floods, earthquakes, 
landslides, or severe weather events that threaten public health or 
safety, property, or natural and cultural resources, and that are 
necessary to repair or improve lands unlikely to recover to a 
management-approved condition (i.e., the previous state) without 
intervention. Covered activities must be completed within one year of 
the causal event and may not include the construction of new permanent 
roads or new permanent infrastructure. Such activities include, but are 
not limited to the repair of existing essential erosion control 
structures or installation of temporary erosion controls; replacement 
or repair of storm water conveyance structures, roads, trails, fences, 
and minor facilities; revegetation; construction of protection fences; 
and removal of hazard trees, rocks, soil, and other mobile debris from, 
on, or along roads, trails, or streams. During the development process 
summarized above, DoN entities recommended the panel develop a new 
CATEX that addressed minor repairs in response to wildfires, floods, 
earthquakes, landslides, or severe weather events. The DoN is proposing 
this CATEX which is similar to the Bureau of Land Management's (BLM's) 
categorical exclusion I (Departmental Manual, Part 516, 11.9 https://www.doi.gov/sites/doi.gov/files/uploads/doi_and_bureau_categorical_exclusions_feb2018.pdf). The DoN consulted 
with the BLM and found no record of significant impacts, either 
individually or cumulatively, resulting from the types of activities 
included in BLM's CATEX. When wildfires, floods, earthquakes, 
landslides, and severe weather events occur, the DoN, often on short 
notice, is required to execute immediate repairs to protect personnel 
and resources. These repairs typically consist of minor, localized, and 
temporary actions to stabilize a specific situation. Examples include 
stabilizing slopes with berms and earthwork after wildfires and heavy 
rains to preclude large erosion events; fixing culverts, roads, and 
fences; and removing damaged trees and other debris. In most cases, the 
intended purpose of the activity is to stabilize a threatening 
situation so that overall resource impacts are minimized. Any impacts 
on soils, wetlands, or other natural

[[Page 12174]]

resources are typically minor and temporary and should result in an 
overall beneficial effect on installation resources.
    CATEX #47 (32 CFR 775.6(f)(47)): This proposed new CATEX would 
cover the modernization (upgrade) of range and training areas, systems, 
and associated components that supports current testing and training 
levels and requirements. It would not cover those actions which would 
include a substantial change in the type or tempo of operation, or the 
nature of the range (i.e., creating an impact area in an area where 
munitions had not been previously used). During the development process 
described above, DoN entities recommended the panel develop a new CATEX 
that covered the modernization and upgrade of range and training area 
systems and components. Rather than provide policy guidance advising 
environmental planners to use another existing CATEX for such projects 
(e.g., CATEX #8), the panel determined that a new CATEX would be 
appropriate and would help to reduce the number of EAs being prepared 
for activities that DoN has in the past found not to have individual or 
cumulative significant impacts on the human environment. This CATEX is 
intended to cover upgrades to range assets within existing range 
footprints and would complement the proposed change to the DoN's 
existing CATEX #8, to which this proposed rule adds the term 
``ranges.'' Any actions taken under this new CATEX cannot result in a 
significant change in how the range is used, thus reducing the 
potential for any new operational impacts. Under this new CATEX, any 
impacts to soils, wetlands, or other natural resources would be minor 
and temporary, and the exclusionary criteria set forth in 32 CFR 
775.6(e) related to wetlands, endangered species, and cultural 
resources would require the preparation of an EA or EIS. The DoN's 
review of previous actions and NEPA analyses shows that no individually 
or cumulatively significant effects are typically attributable to the 
types of activities covered by this proposed new CATEX.
    CATEX #48 (32 CFR 775.6(f)(48)): This proposed new CATEX would 
cover revisions or updates to INRMPs that do not involve substantially 
new or different land use or natural resources management activities 
and for which an EA or EIS was previously prepared that does not 
require supplementation pursuant to 40 CFR 1502.9(c)(1). This new CATEX 
would reduce the number of EAs being unnecessarily prepared for 
activities that inherently do not have individually or cumulatively 
significant impacts on the human environment. This new CATEX would also 
document (via the CATEX process) that the INRMP update is covered by 
the original NEPA documentation. Current DoN guidance requires an 
installation to conduct informal INRMP reviews each year and formal 
INRMP reviews every five years with the USFWS (and NMFS, as 
appropriate) and State partners. Necessary INRMP modifications and 
updates that are identified during an annual review can usually be 
accomplished under the initial NEPA documentation. Upon presentation of 
a proposed INRMP update, the NEPA practitioner may consider the 
proposal as a within-scope modification. Thus, the responsible command 
would be comparing a proposed revision against the original action as 
documented (per existing NEPA processes). Under many circumstances, the 
conclusion may be that the update is not out of scope and the action is 
covered by the original NEPA documentation. Proposed INRMP updates with 
significant differences from the original INRMP would call for 
additional NEPA analysis via revision or new documentation, usually at 
the EA level. The DoN has prepared comprehensive EAs for INRMPs for all 
Navy and Marine Corps properties with significant natural resources. In 
many cases, installations/bases have gone through four or five formal, 
five-year INRMP reviews and updates. The overall management strategy 
for most Navy and Marine Corps facilities is well established. After 
reviewing a number of NEPA documents for INRMP updates and revisions, 
it is clear that NEPA documents are not uncovering new environmental 
impacts and are adding little, if any, value to the decision-making 
process. There should be only minor impacts to natural resources from 
non-substantial management adjustments. Additionally, there should be 
an overall beneficial effect on the natural resources from the 
implementation of an INRMP that has been approved by the USFWS and/or 
NMFS, as appropriate, and relevant state agencies. The DoN review of 
previous NEPA analyses shows that no individually or cumulatively 
significant effects are typically attributable to the types of 
activities covered by this new CATEX.
    CATEX #49 (32 CFR 775.6(f)(49)): This proposed new CATEX would 
cover DoN actions that occur on another Military Service's property 
where the action qualifies for a CATEX of that Service, or for actions 
on property designated as a Joint Base or Joint Region that would 
qualify for a CATEX of any of the Services included as part of the 
Joint Base or Joint Region. If the DoN action proponent chooses to use 
another Service's CATEX to cover a proposed action, the DoN must get 
written confirmation the other Service does not object to using their 
CATEX to cover the DoN action. The DoN official making the CATEX 
determination must ensure the application of the CATEX is appropriate 
and that the DoN proposed action was of a type contemplated when the 
CATEX was established by the other Service. Use of this CATEX would 
require preparation of a Record of CATEX or Decision Memorandum. This 
new CATEX leverages the thorough administrative record reviews 
undertaken by other Military Services that perform similar covered 
actions across the DoD, which is becoming more ``purple'' (i.e., bases 
that host multiple Military Services). For Navy and Marine Corps 
actions that occur on either Army or Air Force property, given that 
CATEXs were established for categories (or types) of activities, use of 
the CATEX by another Military Service should not have significant 
impacts if the activity clearly fits the intent and wording of that 
CATEX. Currently eight out of twelve joint bases throughout the DoD 
involve the DoN: (1) Joint Base McGuire-Dix-Lakehurst, New Jersey 
(Naval Air Engineering Station Lakehurst, Fort Dix, and McGuire Air 
Force Base (AFB)); (2) Joint Base Andrews-Naval Air Facility 
Washington, Maryland (Naval Air Facility Washington and Andrews AFB); 
(3) Joint Base Anacostia-Bolling, DC (Bolling AFB and Naval Station 
Anacostia); (4) Joint Base Myer-Henderson Hall, Virginia (Henderson 
Hall (USMC) and Fort Myer); (5) Joint Base Pearl Harbor-Hickam, Hawaii 
(Hickam AFB, Hawaii and Naval Station Pearl Harbor); (6) Joint Base 
Charleston, South Carolina (Naval Weapons Station Charleston and 
Charleston AFB); (7) Joint Expeditionary Base Little Creek-Fort Story, 
Virginia (Fort Story and Naval Expeditionary Base Little Creek); and 
(8) Joint Region Marianas, Guam (Andersen AFB and Naval Base Guam). The 
Department of the Army has a CATEX ((b)(13)) that is very similar to 
this proposed new CATEX (32 CFR Appendix B to Part 651). The DoN used 
Army experience with this CATEX as a benchmark.

[[Page 12175]]

Regulatory Reviews

Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, it has been reviewed by the Office 
of Management and Budget (OMB).

Executive Order 13771: Reducing Regulations and Controlling Regulatory 
Costs

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this 
proposed rule is expected to be related to agency organization, 
management, or personnel.

National Environmental Policy Act

    The CEQ does not direct agencies to prepare a NEPA analysis before 
establishing agency procedures that supplement the CEQ regulations for 
implementing NEPA. The DoN NEPA procedures assist in the fulfillment of 
its responsibilities under NEPA, but are not final determinations of 
what level of NEPA analysis is required for particular actions. The 
requirements for establishing agency NEPA procedures are set forth at 
40 CFR 1505.1 and 1507.3. The determination that establishing agency 
NEPA procedures does not require NEPA analysis and documentation has 
been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 
962, 972-73 (S.D. III. 1999), aff'd, 230 F.3d 947, 954- 55 (7th Cir. 
2000).

Paperwork Reduction Act

    The proposed action does not contain a collection-of-information 
requirement subject to review and approval by the OMB under the 
Paperwork Reduction Act.

Regulatory Flexibility Act

    The DoN has determined that this action is not subject to the 
relevant provisions of the Regulatory Flexibility Act of 1980 (5 U.S.C. 
605(b)).

Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This proposed rule does not impose any mandates on 
small entities. This action addresses the DoN's internal procedures for 
implementing the procedural requirements of the NEPA.

Executive Order 13132: Federalism

    The DoN has determined that this action does not contain policies 
with Federalism or ``takings'' implications as those terms are defined 
in E.O. 13132 and E.O. 12630, respectively. This action does not have 
federalism implications. It will not have substantial direct effects on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. This action contains no federal mandates 
for state and local governments and does not impose any enforceable 
duties on state and local governments. This action addresses only 
internal DoN procedures for implementing NEPA.

List of Subjects in 32 CFR Part 775

    Environmental impact statements.

    Accordingly, 32 CFR part 775 is proposed to be amended to read as 
follows:

PART 775--POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE 
NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY

0
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.

0
2. Amend Sec.  775.6 by revising paragraphs (e) and (f) as follows:


Sec.  775.6  Planning considerations.

* * * * *
    (e) A categorical exclusion (CATEX), as defined and listed in this 
regulation, may be used to satisfy NEPA, eliminating the need for an 
Environmental Assessment or an Environmental Impact Statement. 
Extraordinary circumstances are those circumstances for which the 
Department of the Navy has determined that further environmental 
analysis may be required because an action normally eligible for a 
CATEX may have significant environmental effects. The presence of one 
or more extraordinary circumstances does not automatically preclude the 
application of a CATEX. A determination of whether a CATEX is 
appropriate for an action, even if one or more extraordinary 
circumstances are present, should focus on the action's potential 
effects and consider the environmental significance of those effects in 
terms of both context (consideration of the affected region, interests, 
and resources) and intensity (severity of impacts).
    (1) Before applying a CATEX, the decision maker must consider 
whether the proposed action:
    (i) Would adversely affect public health or safety;
    (ii) Involves effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or which are scientifically 
controversial;
    (iii) Establishes precedents or makes decisions in principle for 
future actions that have the potential for significant impacts;
    (iv) Threatens a violation of Federal, State, or local 
environmental laws applicable to the Department of the Navy; or
    (v) Involves an action that may:
    (A) Have more than a negligible or discountable effect on Federally 
protected species under the Endangered Species Act or involves an 
action that would require issuance of an Incidental Harassment 
Authorization or Letter of Authorization under the Marine Mammal 
Protection Act;
    (B) Have an adverse effect on coral reefs or on Federally 
designated wilderness areas, wildlife refuges, marine sanctuaries, or 
parklands;
    (C) Adversely affect the size, function, or biological value of 
wetlands and is not covered by a general (nationwide, regional, or 
state) permit;
    (D) Have an adverse effect on archaeological resources or resources 
listed or determined to be eligible for listing on the National 
Register of Historic Places (including, but not limited to, ships, 
aircraft, vessels, and equipment) where compliance with Section 106 of 
the National Historic Preservation Act has not been resolved through an 
agreement executed between the Department of the Navy and the 
appropriate historic preservation office and other appropriate 
consulting parties; or
    (E) 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.

[[Page 12176]]

    (2) If a decision is made to apply a CATEX to a proposed action 
that is more than administrative in nature, the decision must be 
formally documented per existing Navy and Marine Corps policy. For 
actions with a documented CATEX where one or more extraordinary 
circumstances are present, a copy of the executed CATEX decision 
document (e.g., Record of CATEX or Decision Memorandum) must be 
forwarded for review to Navy Headquarters or Marine Corps Headquarters, 
as appropriate, before the action is implemented. This new requirement 
to send the documented CATEX to headquarters for review will end two 
years from the date of the final rule implementing the DoN's revised 
extraordinary circumstances and CATEXs.
    (f) Categorical exclusions. Subject to the criteria in paragraph 
(e) above, the following categories of actions are excluded from 
further analysis under NEPA. The CNO and CMC shall determine whether a 
decision to forego preparation of an EA or EIS on the basis of one or 
more categorical exclusions must be documented in an administrative 
record and the format for such record.
    (1) Routine fiscal and administrative activities, including 
administration of contracts;
    (2) Routine law and order activities performed by military 
personnel, military police, or other security personnel, including 
physical plant protection and security;
    (3) Routine use and operation of existing facilities, laboratories, 
and equipment;
    (4) Administrative studies, surveys, and data collection;
    (5) Issuance or modification of administrative procedures, 
regulations, directives, manuals, or policy;
    (6) Military ceremonies;
    (7) Routine procurement of goods and services conducted in 
accordance with applicable procurement regulations, executive orders, 
and policies;
    (8) Routine repair and maintenance of buildings, facilities, 
vessels, aircraft, ranges, and equipment associated with existing 
operations and activities (e.g., localized pest management activities, 
minor erosion control measures, painting, refitting, general building/
structural repair, landscaping, or grounds maintenance);
    (9) Training of an administrative or classroom nature;
    (10) Routine personnel actions;
    (11) Routine movement of mobile assets (such as ships, submarines, 
aircraft, and ground assets for repair, overhaul, dismantling, 
disposal, homeporting, home basing, temporary reassignments; and 
training, testing or scientific research) where no new support 
facilities are required;
    (12) 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);
    (13) Routine recreational and welfare activities;
    (14) Alterations of and additions to existing buildings, 
facilities, and systems (e.g., structures, roads, runways, vessels, 
aircraft, or equipment) when the environmental effects will remain 
substantially the same and the use is consistent with applicable 
regulations.
    (15) Routine movement, handling and distribution of materials, 
including hazardous materials and wastes that are moved, handled, or 
distributed in accordance with applicable regulations;
    (16) 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;
    (17) 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);
    (18) 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 non-explosive military 
training exercises or research, development, test and evaluation;
    (19) Installation and operation of passive scientific measurement 
devices (e.g., antennae, tide gauges, weighted hydrophones, salinity 
measurement devices, and water quality measurement devices) where use 
will not result in changes in operations tempo and is consistent with 
applicable regulations;
    (20) Short-term increases in air operations up to 50 percent of the 
typical operation rate, or increases of 50 operations per day, 
whichever is greater. Frequent use of this CATEX at an installation 
requires further analysis to determine there are no cumulative impacts;
    (21) 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;
    (22) Non-routine repair and 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;
    (23) 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;
    (24) 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);
    (25) Transfer of real property from the Department of the Navy to 
another military department or to another Federal agency;
    (26) Receipt of property from another Federal agency when there is 
no anticipated or proposed substantial change in land use;
    (27) Minor land acquisitions or disposals where anticipated or 
proposed land use is similar to existing land use and zoning, both in 
type and intensity;
    (28) Disposal of excess easement interests to the underlying fee 
owner;
    (29) Initial real estate in grants and out grants involving 
existing facilities or land with no significant change in use (e.g., 
leasing of Federally owned or privately owned housing or office space, 
and agricultural out leases).
    (30) 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;
    (31) Land withdrawal continuances or extensions that establish time 
periods with no significant change in land use;
    (32) 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

[[Page 12177]]

increases in vehicle loading); electrical, telephone, and other 
transmission and communication lines; water, wastewater, storm water, 
and irrigation pipelines, pumping stations, and facilities; and for 
similar utility and transportation uses;
    (33) New construction that is similar to or compatible with 
existing land use (i.e., site and scale of construction are consistent 
with those of existing adjacent or nearby facilities) 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 and runoff within existing handling capacities). 
The test for whether this CATEX can be applied should focus on whether 
the proposed action generally fits within the designated land use of 
the proposed site.
    (34) Demolition, disposal, or improvements involving buildings or 
structures when done in accordance with applicable regulations 
including those regulations applying to removal of asbestos, PCBs, and 
other hazardous materials;
    (35) Acquisition, installation, modernization, repair or operation 
of utility (including, but not limited to, water, sewer, and 
electrical) and communication systems (including, but not limited to, 
data processing cable and similar electronic equipment) that use 
existing rights of way, easements, distribution systems, and 
facilities.
    (36) Decisions to close facilities, decommission equipment, or 
temporarily discontinue use of facilities or equipment, where the 
facility or equipment is not used to prevent or control environmental 
impacts);
    (37) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at 
an approved disposal site;
    (38) 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);
    (39) Pre-lease upland exploration activities for oil, gas or 
geothermal reserves, (e.g., geophysical surveys);
    (40) 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);
    (41) Reintroduction of endemic or native species (other than 
endangered or threatened species) into their historic habitat when no 
substantial site preparation is involved;
    (42) Temporary closure of public access to Department of the Navy 
property in order to protect human or animal life;
    (43) Routine testing and evaluation of military equipment on a 
military reservation or an established range, restricted area, or 
operating area; similar in type, intensity and setting, including 
physical location and time of year, to other actions for which it has 
been determined, through NEPA analysis where the Department of the Navy 
was a lead or cooperating agency, that there are no significant 
impacts; and conducted in accordance with all applicable standard 
operating procedures protective of the environment;
    (44) Routine military training associated with transits, 
maneuvering, safety and engineering drills, replenishments, flight 
operations, and weapons systems conducted at the unit or minor exercise 
level; similar in type, intensity and setting, including physical 
location and time of year, to other actions for which it has been 
determined, through NEPA analysis where the Department of the Navy was 
a lead or cooperating agency, that there are no significant impacts; 
and conducted in accordance with all applicable standard operating 
procedures protective of the environment.
    (45) Natural resources management actions undertaken or permitted 
pursuant to agreement with or subject to regulation by Federal, State, 
or local organizations having management responsibility and authority 
over the natural resources in question, including, but not limited to, 
prescribed burning, invasive species actions, timber harvesting, and 
hunting and fishing during seasons established by State authorities 
pursuant to their State fish and game management laws. The natural 
resources management actions must be consistent with the overall 
management approach of the property as documented in an Integrated 
Natural Resources Management Plan (INRMP) or other applicable natural 
resources management plan.
    (46) Minor repairs in response to wildfires, floods, earthquakes, 
landslides, or severe weather events that threaten public health or 
safety, security, property, or natural and cultural resources, and that 
are necessary to repair or improve lands unlikely to recover to a 
management-approved condition (i.e., the previous state) without 
intervention. Covered activities must be completed within one year 
following the event and cannot include the construction of new 
permanent roads or other new permanent infrastructure. Such activities 
include, but are not limited to: repair of existing essential erosion 
control structures or installation of temporary erosion controls; 
repair of electric power transmission infrastructure; replacement or 
repair of storm water conveyance structures, roads, trails, fences, and 
minor facilities; revegetation; construction of protection fences; and 
removal of hazard trees, rocks, soil, and other mobile debris from, on, 
or along roads, trails, or streams.
    (47) Modernization (upgrade) of range and training areas, systems, 
and associated components (including, but not limited to, targets, 
lifters, and range control systems) that supports current testing and 
training levels and requirements. Covered actions do not include those 
involving a substantial change in the type or tempo of operation, or 
the nature of the range (i.e., creating an impact area in an area where 
munitions had not been previously used).
    (48) Revisions or updates to INRMPs that do not involve 
substantially new or different land use or natural resources management 
activities and for which an EA or EIS was previously prepared that does 
not require supplementation pursuant to 40 CFR 1502.9(c)(1).
    (49) Department of the Navy actions that occur on another Military 
Service's property where the action qualifies for a CATEX of that 
Service, or for actions on property designated as a Joint Base or Joint 
Region that would qualify for a CATEX of any of the Services included 
as part of the Joint Base or Joint Region. If the DoN action proponent 
chooses to use another Service's CATEX to cover a proposed action, the 
DoN must get written confirmation the other Service does not object to 
using their CATEX to cover the DoN action. The DoN official making the 
CATEX determination must ensure the application of the CATEX is 
appropriate and that the DoN proposed action was of a type contemplated 
when the CATEX was established by the other Service. Use of this CATEX 
requires preparation of a Record of CATEX or Decision Memorandum.

    Dated: March 26, 2019.
M.S. Werner,
Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register 
Liaison Officer.
[FR Doc. 2019-06156 Filed 3-29-19; 8:45 am]
 BILLING CODE 3810-FF-P