Policies and Responsibilities for Implementation of the National Environmental Policy Act Within the Department of the Navy, 66586-66591 [2019-26093]

Download as PDF 66586 Federal Register / Vol. 84, No. 234 / Thursday, December 5, 2019 / Rules and Regulations Goodrich Service Concession Request 026– 09, Revision C, dated April 17, 2009. (iii) Bombardier Repair Drawing 8/4–32– 099, Issue 3, dated December 3, 2009, and Goodrich Service Concession Request 026– 09, Revision D, dated November 27, 2009. (3) This paragraph provides credit for actions performed using the method of compliance specified in paragraph (k) of this AD, if those actions were performed before the effective date of this AD using the service information in paragraph (l)(3)(i) or (ii) of this AD. (i) Bombardier Service Bulletin 84–32–76, dated May 20, 2010. (ii) Bombardier Service Bulletin 84–32–76, Revision A, dated June 19, 2014. (m) Other FAA AD Provisions (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch. AMOCs approved previously in accordance with AD 2009–09– 02 are approved as AMOCs for the corresponding requirements in paragraph (g) of this AD. (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or TCCA; or Bombardier, Inc.’s TCCA DAO; or De Havilland Aircraft of Canada Limited’s TCCA DAO. If approved by the DAO, the approval must include the DAOauthorized signature. jbell on DSKJLSW7X2PROD with RULES (n) Related Information (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF–2009–11R2, dated May 31, 2018, for related information. This MCAI may be found in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA–2019–0479. (2) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516–228–7330; fax 516–794–5531; email 9-avs-nyaco-cos@faa.gov. (3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(5) and (6) of this AD. (o) Material Incorporated by Reference (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51. (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise. VerDate Sep<11>2014 16:17 Dec 04, 2019 Jkt 250001 (3) The following service information was approved for IBR on January 9, 2020. (i) Bombardier Repair Drawing 8/4–32– 099, Issue 4, dated September 4, 2018. (ii) Bombardier Service Bulletin 84–32–69, Revision C, dated January 20, 2011. (iii) Bombardier Service Bulletin 84–32–76, Revision B, dated August 1, 2018. (iv) UTC Aerospace Systems Service Concession Request 026–09, Revision H, dated August 29, 2018. (4) The following service information was approved for IBR on May 6, 2009 (75 FR 18121, April 21, 2009). (i) Bombardier Q400 All Operator Message 338, dated February 23, 2009. The issue date is specified on only the first page of this document. (ii) Bombardier Repair Drawing 8/4–32– 099, Issue 1, dated March 10, 2009. The issue date is specified on only the first page of this document. (iii) Goodrich Service Concession Request 026–09, Revision B, dated March 10, 2009. Pages 1 through 8 of this document are identified as Revision B, dated March 5, 2009; pages 9 through 22 are identified as Revision B, dated March 10, 2009. (5) For service information identified in this AD, contact De Havilland Aircraft of Canada Limited, Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416– 375–4000; fax 416–375–4539; email thd@ dehavilland.com; internet https:// dehavilland.com. (6) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. (7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email fedreg.legal@nara.gov, or go to: https:// www.archives.gov/federal-register/cfr/ibrlocations.html. Issued in Des Moines, Washington, on November 7, 2019. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service. [FR Doc. 2019–26232 Filed 12–4–19; 8:45 am] BILLING CODE 4910–13–P 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 Department of the Navy, Department of Defense. AGENCY: PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 ACTION: Final rule. The Department of the Navy (DON) revises 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: Effective January 6, 2020. FOR FURTHER INFORMATION CONTACT: Mr. J. Dan Cecchini, Office of the Deputy Assistant Secretary of the Navy (Environment), 703–614–1173. SUPPLEMENTARY INFORMATION: SUMMARY: Process Used by the DON in the Development of the Proposed Revisions 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 address the DON’s procedures for applying CATEXs. 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 comprising 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 E:\FR\FM\05DER1.SGM 05DER1 Federal Register / Vol. 84, No. 234 / Thursday, December 5, 2019 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES 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 the proposed rule (84 FR 12170). In accordance with Council on Environmental Quality (CEQ) regulations and CEQ’s 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 decision making 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 rulemaking on these proposed changes. Summary of Comments and Responses The DON published the proposed rule (84 FR 12170) on April 1, 2019, and received comments regarding the rule until May 1, 2019. In total, the DON received five (5) comment submissions VerDate Sep<11>2014 16:17 Dec 04, 2019 Jkt 250001 on the proposed rule from members of the general public, the Natural Resources Defense Council (NRDC), and Buchalter law firm. In general, the comments received could be placed into one of four (4) categories: (1) Comments beyond the scope of the proposed rule; (2) comments regarding the introductory language change for ‘‘extraordinary circumstances’’ under 32 CFR 775.6(e); (3) comments regarding how the proposed change to 32 CFR 775.6 may interact with the Marine Mammal Protection Act (MMPA); and, (4) comments regarding proposed CATEX #47, which allows for the ‘‘modernization (upgrade) of range and training areas, systems, and associated components . . . that support current testing and training levels and requirements.’’ Comments Beyond the Scope of the Proposed Rule The DON received comments expressing disagreement and lack of support for general naval operations, as well as dissatisfaction with Federal protections for marine mammals. The DON also received feedback regarding existing CATEXs, specifically CATEXs #44 and #45 (now numbered #43 and #44 in this final rule). The proposed rule did not change or alter these CATEXs. These comments were deemed to be outside the scope of this rulemaking and are therefore not addressed further. Modifications to 32 CFR 775.6(e) The DON received comments expressing concern that the proposed modifications to the text of 32 CFR 775.6(e) would ‘‘eliminate’’ the extraordinary circumstances exception to the use of a CATEX, contravening CEQ guidance. The DON stresses that the proposed changes to the criteria disallowing the application of a listed CATEX (hereafter ‘‘extraordinary circumstances’’) do not eliminate the requirement to demonstrate that an action has no significant effect on the human environment, either individually or cumulatively, prior to applying a CATEX. Rather, the rulemaking provides discretion in circumstances where one or more extraordinary circumstances are present but in which only negligible or insignificant impacts are expected. Under this rulemaking, the decision maker may determine that the CATEX is appropriate, notwithstanding the presence of one or more extraordinary circumstances, based on an evaluation of the action’s effects in terms of context and intensity. This change aligns with CEQ’s 2010 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 66587 CATEX guidance (page 6) which allows for the consideration of both ‘‘the presence of the factor and the impact on that factor.’’ Further, this language mirrors the extraordinary circumstances introductory language already contained in similar NEPA regulations of the U.S. Forest Service and the National Oceanic and Atmospheric Administration (NOAA)’s NEPA manual. Some commenters also expressed concern that the modifications to 32 CFR 775.6(e) could lead to environmental degradation if the DON sought to apply a CATEX under 32 CFR 775.6(f) to an action which on its face appeared to have negligible impacts, but cumulatively or over time could have more substantial negative environmental impacts. Again, consistent with CEQ guidance, the DON’s CATEXs can only be applied to actions that, both individually and cumulatively, have no significant impacts on the human environment. Under the new 32 CFR 775.6(e)(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 consistent with existing Navy and Marine Corps policy. Some commenters were concerned that the new language proposed under 32 CFR 775.6(e) would allow the DON to apply CATEXs for ‘‘routine training and evaluation’’ and ‘‘routine military training’’ (existing CATEXs renumbered as #43 and #44 in this final rule) to virtually all testing and training activities, thereby circumventing Federal law. The language, however, does not remove the requirement to demonstrate that such training and testing have no significant impacts on the human environment either individually or cumulatively. Moreover, it does not negate the DON’s responsibility to obtain legally required permits and/or approvals from regulatory agencies outside of the DON, many of which have their own NEPA review obligation. Finally, if a decision is made to apply a CATEX to a proposed action even though one or more extraordinary circumstances are present, a copy of the executed CATEX decision document must be forwarded to headquarters for review before the action can be implemented. These decisions then face a higher level of scrutiny which ensures the appropriate level of NEPA analysis is completed. To address the above comments regarding changes to 32 CFR 775.6(e), the DON will adopt the following language under 32 CFR 775.6(e) to clarify its position that application of a CATEX is inappropriate unless the E:\FR\FM\05DER1.SGM 05DER1 66588 Federal Register / Vol. 84, No. 234 / Thursday, December 5, 2019 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES action is determined not to have a significant impact on the human environment either individually or cumulatively: ‘‘A categorical exclusion (CATEX), as defined and listed in this regulation and 40 CFR 1508.4, may be used to exclude a proposed action from further analysis. . . Before applying a CATEX, the decision maker must consider whether the proposed action would individually or cumulatively: . . .’’ (emphasis added). Further, in response to comments, the DON will also remove the sunset provision previously included in the proposed rule for actions falling under 32 CFR 775.6(e)(1)(v)(A). The proposed rule terminated the requirement to forward CATEXs to headquarters for actions where one or more extraordinary circumstances were present after two years from the date of this final rule. Under the final rule, CATEXs for these actions will be forwarded to the headquarters level for review with no sunset provision. The purpose of this change is to ensure the highest level of scrutiny is dedicated to those actions which impact federally protected species. Finally, certain commenters took issue with the DON’s word choice. Examples of disputed wording include the use of ‘‘context and intensity’’ in 32 CFR 775.6(e) and ‘‘scientifically controversial’’ in 32 CFR 775.6(e)(1)(ii). The consideration of ‘‘context and intensity’’ of an action contemplated for a CATEX where one or more extraordinary circumstances is present is simply meant to provide guidance to decision makers in determining whether an action has the potential for significant effects under 40 CFR 1508.4. As noted previously, the consideration of ‘‘context and intensity’’ when determining whether a CATEX is appropriate aligns with CEQ’s 2010 CATEX guidance. The term ‘‘scientifically controversial’’ is in the DON’s existing NEPA regulations and has not been altered by this rulemaking. Interaction With the MMPA The DON also received comments expressing concern that the DON would rely on the language changes under 32 CFR 775.6 to circumvent certain procedures, approvals, or authorizations required under the MMPA or other environmental statutes. Changes to the DON’s CATEX regulations cannot negate the DON’s independent legal responsibilities under other environmental statutes. Rather, the regulatory changes proffered by the DON in this rulemaking more clearly delineate the interplay between the DON NEPA regulations and the MMPA VerDate Sep<11>2014 16:17 Dec 04, 2019 Jkt 250001 by linking the trigger for extraordinary circumstances to the specific regulatory threshold language of the MMPA. The DON has added language to 32 CFR 775.6(e)(1)(v)(A) to clarify a CATEX will not be used if potential impacts would rise to the level of requiring an Incidental Take Authorization under the MMPA, irrespective of whether an actual authorization is procured unless the DON determines, in accordance § 775.6(e), and after considering context and intensity, that the proposed action would not have significant environmental effects. Further, the language change to 32 CFR 775.6 in no way affects policy external to the DON. The proposed language does not contravene National Marine Fisheries Service (NMFS) authorization requirements or NOAA NEPA requirements. That is, the DON will still be required to seek MMPA Incidental Take Authorizations from NMFS for activities which trigger NMFS jurisdiction and NOAA’s issuance of those authorizations must still comply with its NEPA procedures. The DON will work closely with NMFS to ensure the appropriate level of NEPA analysis is completed to satisfy the NEPA requirements for both agencies. CATEX #47 (Modernization (Upgrade) of Range and Training Areas, Systems, and Components That Support Current Testing and Training Levels and Requirements) One commenter was concerned that this proposed new CATEX could enable ‘‘later increased and potentially different uses’’ of DON ranges that would never undergo NEPA analysis. This CATEX covers the modernization (upgrade) of range and training areas, systems, and associated components that support current (emphasis added) training and testing levels and requirements. It would be used for activities such as replacing worn out infrastructure and equipment. The language of this CATEX cannot be used to satisfy NEPA obligations for increased or potentially different uses of the range or training area that would result in additional environmental impacts. No changes were made to the text of the final rule as a result of this comment. Miscellaneous Changes In accordance with the comments section noted above, the DON makes minor edits to the wording of its proposed rule. The DON also makes several minor edits to improve the clarity, grammar, consistency and brevity of the regulations overall including a change which deletes PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 language from CATEX #22 that contradicts DON’s changes to extraordinary circumstances criteria regarding how to account for adverse effects on historic properties. Thereafter, for the reasons given in the proposed rule and in this document, the DON adopts the proposed rule as a final rule, with the changes discussed in this document. 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 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. 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). Congressional Review Act, 5 U.S.C. 804(2) Under the Congressional Review Act, a major rule may not take effect until at least 60 days after submission to Congress of a report regarding the rule. A major rule is one that would have an annual effect on the economy of $100 E:\FR\FM\05DER1.SGM 05DER1 Federal Register / Vol. 84, No. 234 / Thursday, December 5, 2019 / Rules and Regulations million or more; or a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. This final rule is not a major rule because it does not reach the economic threshold or have other impacts as required under the Congressional Review Act. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs This final rule is not subject to the requirements of Executive Order 13771 (82 FR 9339, February 3, 2017) because it is 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. 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 This regulatory action does not contain a collection-of-information requirement subject to review and approval by the OMB under the Paperwork Reduction Act. jbell on DSKJLSW7X2PROD with RULES 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 rule does not impose any mandates on small entities. This action addresses the DON’s internal 16:17 Dec 04, 2019 Jkt 250001 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 Executive Orders 13132 and 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, the DON amends 32 CFR part 775 as follows: PART 775—POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY 1. The authority for part 775 continues to read as follows: ■ Authority: 5 U.S.C. 301; 42 U.S.C. 4321– 4361; 40 CFR parts 1500–1508. 2. Revise the heading for part 775 to read as set forth above. ■ 3. Amend § 775.6 by revising paragraphs (e) and (f) as follows: ■ § 775.6 Planning considerations. * 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)). VerDate Sep<11>2014 procedures for implementing the procedural requirements of NEPA. * * * * (e) A categorical exclusion (CATEX), as defined and listed in this part and 40 CFR 1508.4, may be used to satisfy NEPA, eliminating the need for an EA or an EIS. Extraordinary circumstances are those circumstances for which the DON 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 of the extraordinary circumstances listed in paragraph (e)(1) of this section 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 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 66589 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 would individually or cumulatively: (i) Adversely affect public health or safety; (ii) Involve effects on the human environment that are highly uncertain, involve unique or unknown risks, or which are scientifically controversial; (iii) Establish precedents or make decisions in principle for future actions that have the potential for significant impacts; (iv) Threaten a violation of Federal, State, or local environmental laws applicable to the DON; or (v) Involve an action that may: (A) Have more than an insignificant or discountable effect on federally protected species under the Endangered Species Act or have impacts that would rise to the level of requiring an Incidental Take Authorization under the Marine Mammal Protection Act irrespective of whether one is procured; (B) Have an adverse effect on coral reefs or on federally designated wilderness areas, wildlife refuges, marine sanctuaries and monuments, 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 DON 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 in 40 CFR part 93, subpart B (the Clean Air Act General Conformity Rule). (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 E:\FR\FM\05DER1.SGM 05DER1 jbell on DSKJLSW7X2PROD with RULES 66590 Federal Register / Vol. 84, No. 234 / Thursday, December 5, 2019 / Rules and Regulations forwarded for review to Navy Headquarters or Marine Corps Headquarters, as appropriate, before the action is implemented. With the exception of actions that fall under paragraph (e)(1)(v)(A) of this section, the requirement to send the documented CATEX to headquarters for review will end on January 6, 2022. (f) Subject to the criteria in paragraph (e) of this section, 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); VerDate Sep<11>2014 16:17 Dec 04, 2019 Jkt 250001 (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 nonexplosive 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 naval 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 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 contributing elements of facilities listed or eligible for listing on the National Register of Historic Places; (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 nonmilitary 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 DON 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 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 E:\FR\FM\05DER1.SGM 05DER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 84, No. 234 / Thursday, December 5, 2019 / Rules and Regulations 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 DON property 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 VerDate Sep<11>2014 16:17 Dec 04, 2019 Jkt 250001 where the DON 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 DON 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 managementapproved 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 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 66591 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 support 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); and (49) 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 obtain written confirmation the other Service does not object to using its 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’s 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: November 27, 2019. D.J. Antenucci, Commander, Judge Advocate General’s Corps, U.S. Navy, Federal Register Liaison Officer. [FR Doc. 2019–26093 Filed 12–4–19; 8:45 am] BILLING CODE 3810–FF–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA–HQ–OPPT–2018–0649; FRL–10001– 47] RIN 2070–AB27 Significant New Use Rules on Certain Chemical Substances (18–2) Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: E:\FR\FM\05DER1.SGM 05DER1

Agencies

[Federal Register Volume 84, Number 234 (Thursday, December 5, 2019)]
[Rules and Regulations]
[Pages 66586-66591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26093]


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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: Final rule.

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SUMMARY: The Department of the Navy (DON) revises 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: Effective January 6, 2020.

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

SUPPLEMENTARY INFORMATION: 

Process Used by the DON in the Development of the Proposed Revisions

    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 
address the DON's procedures for applying CATEXs. 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 comprising 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

[[Page 66587]]

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 the 
proposed rule (84 FR 12170).
    In accordance with Council on Environmental Quality (CEQ) 
regulations and CEQ's 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 decision making 
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 rulemaking on these proposed changes.

Summary of Comments and Responses

    The DON published the proposed rule (84 FR 12170) on April 1, 2019, 
and received comments regarding the rule until May 1, 2019. In total, 
the DON received five (5) comment submissions on the proposed rule from 
members of the general public, the Natural Resources Defense Council 
(NRDC), and Buchalter law firm.
    In general, the comments received could be placed into one of four 
(4) categories: (1) Comments beyond the scope of the proposed rule; (2) 
comments regarding the introductory language change for ``extraordinary 
circumstances'' under 32 CFR 775.6(e); (3) comments regarding how the 
proposed change to 32 CFR 775.6 may interact with the Marine Mammal 
Protection Act (MMPA); and, (4) comments regarding proposed CATEX #47, 
which allows for the ``modernization (upgrade) of range and training 
areas, systems, and associated components . . . that support current 
testing and training levels and requirements.''

Comments Beyond the Scope of the Proposed Rule

    The DON received comments expressing disagreement and lack of 
support for general naval operations, as well as dissatisfaction with 
Federal protections for marine mammals. The DON also received feedback 
regarding existing CATEXs, specifically CATEXs #44 and #45 (now 
numbered #43 and #44 in this final rule). The proposed rule did not 
change or alter these CATEXs. These comments were deemed to be outside 
the scope of this rulemaking and are therefore not addressed further.

Modifications to 32 CFR 775.6(e)

    The DON received comments expressing concern that the proposed 
modifications to the text of 32 CFR 775.6(e) would ``eliminate'' the 
extraordinary circumstances exception to the use of a CATEX, 
contravening CEQ guidance. The DON stresses that the proposed changes 
to the criteria disallowing the application of a listed CATEX 
(hereafter ``extraordinary circumstances'') do not eliminate the 
requirement to demonstrate that an action has no significant effect on 
the human environment, either individually or cumulatively, prior to 
applying a CATEX. Rather, the rulemaking provides discretion in 
circumstances where one or more extraordinary circumstances are present 
but in which only negligible or insignificant impacts are expected. 
Under this rulemaking, the decision maker may determine that the CATEX 
is appropriate, notwithstanding the presence of one or more 
extraordinary circumstances, based on an evaluation of the action's 
effects in terms of context and intensity. This change aligns with 
CEQ's 2010 CATEX guidance (page 6) which allows for the consideration 
of both ``the presence of the factor and the impact on that factor.'' 
Further, this language mirrors the extraordinary circumstances 
introductory language already contained in similar NEPA regulations of 
the U.S. Forest Service and the National Oceanic and Atmospheric 
Administration (NOAA)'s NEPA manual.
    Some commenters also expressed concern that the modifications to 32 
CFR 775.6(e) could lead to environmental degradation if the DON sought 
to apply a CATEX under 32 CFR 775.6(f) to an action which on its face 
appeared to have negligible impacts, but cumulatively or over time 
could have more substantial negative environmental impacts. Again, 
consistent with CEQ guidance, the DON's CATEXs can only be applied to 
actions that, both individually and cumulatively, have no significant 
impacts on the human environment. Under the new 32 CFR 775.6(e)(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 
consistent with existing Navy and Marine Corps policy.
    Some commenters were concerned that the new language proposed under 
32 CFR 775.6(e) would allow the DON to apply CATEXs for ``routine 
training and evaluation'' and ``routine military training'' (existing 
CATEXs renumbered as #43 and #44 in this final rule) to virtually all 
testing and training activities, thereby circumventing Federal law. The 
language, however, does not remove the requirement to demonstrate that 
such training and testing have no significant impacts on the human 
environment either individually or cumulatively. Moreover, it does not 
negate the DON's responsibility to obtain legally required permits and/
or approvals from regulatory agencies outside of the DON, many of which 
have their own NEPA review obligation. Finally, if a decision is made 
to apply a CATEX to a proposed action even though one or more 
extraordinary circumstances are present, a copy of the executed CATEX 
decision document must be forwarded to headquarters for review before 
the action can be implemented. These decisions then face a higher level 
of scrutiny which ensures the appropriate level of NEPA analysis is 
completed.
    To address the above comments regarding changes to 32 CFR 775.6(e), 
the DON will adopt the following language under 32 CFR 775.6(e) to 
clarify its position that application of a CATEX is inappropriate 
unless the

[[Page 66588]]

action is determined not to have a significant impact on the human 
environment either individually or cumulatively: ``A categorical 
exclusion (CATEX), as defined and listed in this regulation and 40 CFR 
1508.4, may be used to exclude a proposed action from further analysis. 
. . Before applying a CATEX, the decision maker must consider whether 
the proposed action would individually or cumulatively: . . .'' 
(emphasis added).
    Further, in response to comments, the DON will also remove the 
sunset provision previously included in the proposed rule for actions 
falling under 32 CFR 775.6(e)(1)(v)(A). The proposed rule terminated 
the requirement to forward CATEXs to headquarters for actions where one 
or more extraordinary circumstances were present after two years from 
the date of this final rule. Under the final rule, CATEXs for these 
actions will be forwarded to the headquarters level for review with no 
sunset provision. The purpose of this change is to ensure the highest 
level of scrutiny is dedicated to those actions which impact federally 
protected species.
    Finally, certain commenters took issue with the DON's word choice. 
Examples of disputed wording include the use of ``context and 
intensity'' in 32 CFR 775.6(e) and ``scientifically controversial'' in 
32 CFR 775.6(e)(1)(ii). The consideration of ``context and intensity'' 
of an action contemplated for a CATEX where one or more extraordinary 
circumstances is present is simply meant to provide guidance to 
decision makers in determining whether an action has the potential for 
significant effects under 40 CFR 1508.4. As noted previously, the 
consideration of ``context and intensity'' when determining whether a 
CATEX is appropriate aligns with CEQ's 2010 CATEX guidance. The term 
``scientifically controversial'' is in the DON's existing NEPA 
regulations and has not been altered by this rulemaking.

Interaction With the MMPA

    The DON also received comments expressing concern that the DON 
would rely on the language changes under 32 CFR 775.6 to circumvent 
certain procedures, approvals, or authorizations required under the 
MMPA or other environmental statutes. Changes to the DON's CATEX 
regulations cannot negate the DON's independent legal responsibilities 
under other environmental statutes. Rather, the regulatory changes 
proffered by the DON in this rulemaking more clearly delineate the 
interplay between the DON NEPA regulations and the MMPA by linking the 
trigger for extraordinary circumstances to the specific regulatory 
threshold language of the MMPA. The DON has added language to 32 CFR 
775.6(e)(1)(v)(A) to clarify a CATEX will not be used if potential 
impacts would rise to the level of requiring an Incidental Take 
Authorization under the MMPA, irrespective of whether an actual 
authorization is procured unless the DON determines, in accordance 
Sec.  775.6(e), and after considering context and intensity, that the 
proposed action would not have significant environmental effects.
    Further, the language change to 32 CFR 775.6 in no way affects 
policy external to the DON. The proposed language does not contravene 
National Marine Fisheries Service (NMFS) authorization requirements or 
NOAA NEPA requirements. That is, the DON will still be required to seek 
MMPA Incidental Take Authorizations from NMFS for activities which 
trigger NMFS jurisdiction and NOAA's issuance of those authorizations 
must still comply with its NEPA procedures. The DON will work closely 
with NMFS to ensure the appropriate level of NEPA analysis is completed 
to satisfy the NEPA requirements for both agencies.

CATEX #47 (Modernization (Upgrade) of Range and Training Areas, 
Systems, and Components That Support Current Testing and Training 
Levels and Requirements)

    One commenter was concerned that this proposed new CATEX could 
enable ``later increased and potentially different uses'' of DON ranges 
that would never undergo NEPA analysis. This CATEX covers the 
modernization (upgrade) of range and training areas, systems, and 
associated components that support current (emphasis added) training 
and testing levels and requirements. It would be used for activities 
such as replacing worn out infrastructure and equipment. The language 
of this CATEX cannot be used to satisfy NEPA obligations for increased 
or potentially different uses of the range or training area that would 
result in additional environmental impacts. No changes were made to the 
text of the final rule as a result of this comment.

Miscellaneous Changes

    In accordance with the comments section noted above, the DON makes 
minor edits to the wording of its proposed rule. The DON also makes 
several minor edits to improve the clarity, grammar, consistency and 
brevity of the regulations overall including a change which deletes 
language from CATEX #22 that contradicts DON's changes to extraordinary 
circumstances criteria regarding how to account for adverse effects on 
historic properties.
    Thereafter, for the reasons given in the proposed rule and in this 
document, the DON adopts the proposed rule as a final rule, with the 
changes discussed in this document.

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 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.

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).

Congressional Review Act, 5 U.S.C. 804(2)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule. A major rule is one that would have an annual 
effect on the economy of $100

[[Page 66589]]

million or more; or a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets. This final rule is not a 
major rule because it does not reach the economic threshold or have 
other impacts as required under the Congressional Review Act.

Executive Order 13771: Reducing Regulation and Controlling Regulatory 
Costs

    This final rule is not subject to the requirements of Executive 
Order 13771 (82 FR 9339, February 3, 2017) because it is 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. 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

    This regulatory 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 rule does not impose any mandates on small 
entities. This action addresses the DON's internal procedures for 
implementing the procedural requirements of 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 Executive Orders 13132 and 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, the DON amends 32 CFR part 775 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. Revise the heading for part 775 to read as set forth above.

0
3. 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 
part and 40 CFR 1508.4, may be used to satisfy NEPA, eliminating the 
need for an EA or an EIS. Extraordinary circumstances are those 
circumstances for which the DON 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 of the extraordinary circumstances listed in 
paragraph (e)(1) of this section 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 would individually or cumulatively:
    (i) Adversely affect public health or safety;
    (ii) Involve effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or which are scientifically 
controversial;
    (iii) Establish precedents or make decisions in principle for 
future actions that have the potential for significant impacts;
    (iv) Threaten a violation of Federal, State, or local environmental 
laws applicable to the DON; or
    (v) Involve an action that may:
    (A) Have more than an insignificant or discountable effect on 
federally protected species under the Endangered Species Act or have 
impacts that would rise to the level of requiring an Incidental Take 
Authorization under the Marine Mammal Protection Act irrespective of 
whether one is procured;
    (B) Have an adverse effect on coral reefs or on federally 
designated wilderness areas, wildlife refuges, marine sanctuaries and 
monuments, 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 DON 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 in 40 
CFR part 93, subpart B (the Clean Air Act General Conformity Rule).
    (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

[[Page 66590]]

forwarded for review to Navy Headquarters or Marine Corps Headquarters, 
as appropriate, before the action is implemented. With the exception of 
actions that fall under paragraph (e)(1)(v)(A) of this section, the 
requirement to send the documented CATEX to headquarters for review 
will end on January 6, 2022.
    (f) Subject to the criteria in paragraph (e) of this section, 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 naval 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;
    (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 DON 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 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

[[Page 66591]]

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 DON property 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 DON 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 DON 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 support 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); and
    (49) 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 obtain 
written confirmation the other Service does not object to using its 
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's 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: November 27, 2019.
D.J. Antenucci,
Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register 
Liaison Officer.
[FR Doc. 2019-26093 Filed 12-4-19; 8:45 am]
BILLING CODE 3810-FF-P