Policies and Responsibilities for Implementation of the National Environmental Policy Act Within the Department of the Navy, 66586-66591 [2019-26093]
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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.
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(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.
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(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:
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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)).
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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
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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
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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);
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(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
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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
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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
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16:17 Dec 04, 2019
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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
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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:
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[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.
-----------------------------------------------------------------------
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