Procedures for Implementing the National Environmental Policy Act, 27804-27815 [2023-09038]

Agencies

• National Aeronautics and Space Administration

[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Proposed Rules]
[Pages 27804-27815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09038]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1216

[Document Number-23-038; Docket Number-NASA-2022-0005]
RIN 2700-AE56


Procedures for Implementing the National Environmental Policy Act

AGENCY: National Aeronautics and Space Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration (NASA) is 
proposing to amend and update its regulations for implementing the 
National Environmental Policy Act of 1969 (NEPA). The proposed 
amendments would update NASA's regulations to better align with the 
Agency's current and near future actions, adjust the level of NEPA 
review and documentation required for certain

[[Page 27805]]

actions, and provide more concise descriptions of NASA actions. 
Additionally, consistent with NASA's requirement to review existing 
Categorical Exclusions (CatExs) at least every seven years to determine 
whether modifications, additions, or deletions are appropriate, this 
proposed rule incorporates updates to NASA's CatExs based on that 
review.

DATES: Submit comments on or before July 3, 2023.

ADDRESSES: You may send comments, identified by 2700-AE56 to the 
Federal e-Rulemaking Portal: https://www.regulations.gov. Follow the 
instructions for sending comments. If access to the website is not 
feasible, NASA welcomes mailed comments to NASA Rulemaking Comments, 
Environmental Management Division, Suite 2U82, 300 E Street SW, 
Washington, DC 20546. As the security screening process may delay mail 
sent through the U.S. Postal Service, NASA encourages electronic 
submittal. Before including your address, phone number, email address, 
or other personally identifiable information (PII) in your comment, you 
should be aware that your entire comment, including your PII, may be 
made publicly available at any time. While you can request to withhold 
your PII from public review as part of the overall comment submittal, 
NASA cannot guarantee the execution of such a request.

FOR FURTHER INFORMATION CONTACT: Tina Norwood, (202) 358-7324, 
[email protected]. General information about NASA's NEPA process is 
available on the NASA NEPA Portal and NEPA Library at https://www.nasa.gov/emd/nepa.

SUPPLEMENTARY INFORMATION: 

Background

    The National Environmental Policy Act, as amended, 42 U.S.C. 4321-
4347, requires all Federal agencies to assess the environmental impact 
of their actions pursuant to 42 U.S.C. 4332(2)(C). The Council on 
Environmental Quality (CEQ) has issued regulations at 40 CFR parts 1500 
through 1508 (CEQ regulations) implementing NEPA that are binding on 
Federal agencies. On July 16, 2020, CEQ issued a final rule 
comprehensively updating its regulations implementing NEPA, 85 FR 43304 
(July 16, 2020). The CEQ regulations require Federal agencies to 
develop or revise their procedures for implementing NEPA, as necessary, 
for consistency with CEQ's regulations or for efficiency (40 CFR 
1507.3(b), (c)). However, CEQ has extended the deadline for agencies to 
propose conforming adjustments to their agency NEPA procedures until 
September 14, 2023, 86 FR 34154 (June 29, 2021). Moreover, consistent 
with Executive Orders (E.O.) 13990 of January 20, 2021, Protecting 
Public Health and the Environment and Restoring Science To Tackle the 
Climate Crisis, and E.O. 14008 of January 27, 2021, Tackling the 
Climate Crisis at Home and Abroad, CEQ is conducting a comprehensive 
review of the 2020 revisions to the CEQ regulations and is taking a 
phased approach to reconsider the regulations. See 86 FR 55757 (Oct. 7, 
2021); 87 FR 23453 (Apr. 20, 2022). In this rulemaking, NASA is 
proposing new and revised CatExs, revising its list of actions normally 
requiring environmental impact statements or environmental assessments 
(EA), and making other clarifying non-substantive revisions. NASA will 
consider whether to propose additional changes to its procedures at the 
conclusion of CEQ's rulemaking process.
    NASA's NEPA regulations are codified in 14 CFR 1216.3 (Procedures 
for Implementing the National Environmental Policy Act). NASA consulted 
with CEQ during the development of these proposed updated procedures 
and prior to their publication in the Federal Register (40 CFR 1507.3). 
These regulations would 1) codify changes to NASA's implementing 
regulations which reflect lessons learned since NASA last amended its 
NEPA regulations in 2012 (77 FR 3102 (Jan. 23, 2012)); 2) encourage 
increased use of programmatic NEPA documents and tiering for routine 
and repetitive actions for which the environmental impact is well 
understood; and 3) add several new CatExs for NASA actions that neither 
individually nor cumulatively have a significant impact on the quality 
of the human environment.
    In addition to NASA's implementing regulations, NASA provides 
specific instructions pertaining to NEPA program responsibilities 
internally through NASA Procedural Requirements (NPR) 8580.1, 
Implementing the National Environmental Policy Act and Executive Order 
12114, available at NASA's NEPA website https://www.nasa.gov/emd/nepa 
(under NEPA Process).
    Since NASA's last NEPA regulatory revision in 2012, NASA's mission, 
programs, and strategic goals have evolved with a key focus on leading 
a new era of human space exploration, performing transformative 
aeronautics technology research, and continuing to study our planet and 
the solar system. This proposed rule builds upon decades of NASA's 
experience and seeks to better align with NASA's evolving technology 
and mission demands. NASA's NEPA regulations and policy will continue 
to be available on NASA's Public Portal at https://www.nasa.gov/emd/nepa/ (under NEPA Process). In addition, NASA NEPA policy (NPR 8580.1) 
would be updated to reflect the revised updated NASA regulations and 
posted on the website. Consistent with the coordination requirement of 
40 CFR 1507.3, NASA consulted with CEQ throughout the development of 
this proposed rule.

Introduction

    NASA is proposing to amend its regulations for implementing the 
requirements of NEPA to (1) better align with the Agency's current and 
near-future actions, (2) adjust the level of NEPA review and 
documentation required for certain NASA actions that have become 
routine over the past decade for which NASA has determined they do not 
have significant environmental effects, (3) provide more concise 
descriptions of NASA actions and more specific CatExs to ensure 
appropriate application and tracking by NASA, and 4) ensure consistency 
with EOs and Presidential Memoranda (e.g., Presidential Memorandum on 
Launch of Spacecraft Containing Space Nuclear Systems issued August 20, 
2019) issued since the last update to NASA's procedures. The proposed 
amendments are designed to assist decision makers across NASA with a 
wide array of missions and activities that include space exploration 
and Earth observation missions, aeronautics research, launch facilities 
and activities, sounding rocket and balloon campaigns, field campaigns, 
and facilities construction and maintenance activities.
    The proposed amendments would update existing CatExs and add nine 
new CatExs, amend existing actions normally requiring an EA and add a 
new action normally requiring an EA, amend existing actions normally 
requiring an environmental impact statement (EIS), and include other 
amendments. These changes are described later in this notice.
    These proposed amendments to NASA's NEPA procedures incorporate and 
supplement CEQ's NEPA implementing regulations at 40 CFR parts 1500 
through 1508. NASA drafted these procedures to minimize repetition with 
CEQ regulations and with the understanding that these NASA-specific 
regulations would be applied in tandem with the CEQ regulations. The 
terminology used in this Preamble and the proposed amendments include

[[Page 27806]]

many words and phrases that are specifically defined in either NEPA or 
the CEQ regulations found in 40 CFR 1508.1.

Development Process

    In 2018, NASA Environmental Management Division (HQ/EMD) formed a 
working group to review 14 CFR part 1216, subpart 1216.3, including 
listed CatExs. The members comprising the working group were current 
NASA professionals with numerous years of NEPA planning and compliance 
history. Several of the members served on the working group for the 
2012 revision of NASA's NEPA regulations. A summary of the working 
group members' qualifications is available on the NASA NEPA Library 
website: https://www.nasa.gov/emd/nepa (under 2021 NEPA Regulation 
Update).
    In accordance with CEQ's regulations and its 2010 CatEx guidance, 
``Establishing, Applying, and Revising Categorical Exclusions under the 
National Environmental Policy Act,'' the working group reviewed each 
existing CatEx against NASA's existing policies, procedures, programs, 
and mission to determine if they were current and appropriate. The 
working group also reviewed the 2018 CEQ comprehensive list of Federal 
agencies' CatExs and identified other agencies' CatExs for activities 
that are similar in nature, scope, and impact on the human environment 
to those activities conducted by NASA. Based on this benchmarking of 
other Federal agencies' CatExs and review of their administrative 
records, the working group recommended NASA add three CatExs to Sec.  
1216.304(d). The working group also recommended amending several 
existing NASA CatExs to clarify and better define the actions and to 
ensure NASA consistently applies and tracks CatEx use. Concurrently, 
the working group reviewed NASA's existing extraordinary circumstances 
to ensure that they adequately account for those situations and 
settings in which a proposed new or revised CatEx may not be applied, 
and NASA must prepare an EA or EIS to support Agency action.
    In addition to reviewing NASA's CatExs and extraordinary 
circumstances, the working group reviewed NASA actions normally 
requiring an EA or EIS to determine if the level of analysis is 
appropriate and if additional actions should be added. The review 
considered NASA's current mission and routinely implemented actions, 
past experiences, and past NEPA reviews (EAs and EISs). The working 
group recommended adjusting the level of analysis for several actions 
from EIS to EA and from EA to CatEx because NASA has reviewed the 
environmental effects of each of the actions and found them not to be 
significant.
    The working group developed a draft proposed rule, then distributed 
the draft to the NEPA Managers at the ten NASA Centers and component 
facilities, and to other environmental professionals and stakeholders 
within NASA, for review and feedback. NASA also consulted with CEQ 
during the development process to ensure the proposed changes to 14 CFR 
part 1216, subpart 1216.3, would meet NEPA requirements.

Responsibilities and Implementation Process

    NASA proposes to designate the Assistant Administrator, Office of 
Strategic Infrastructure, within the Mission Support Directorate (MSD), 
as the NASA Senior Agency Official (SAO). The SAO would be responsible 
for establishing overall Agency NEPA compliance policy and implementing 
regulations for NASA, including resolving implementation issues and 
generally providing oversight of NASA's NEPA program. The proposed 
updates would incorporate the designation of NASA's SAO and would 
articulate the SAO's roles and responsibilities.
    The NASA Senior Environmental Official (SEO) would be responsible 
for implementing NASA's NEPA compliance program; including all 
regulations, policy directives, and procedural requirements; and 
maintaining up-to-date Agency-wide NEPA program guidance that fully 
integrates NEPA analysis into Agency planning and decision-making 
processes. The SEO is the Director, Environmental Management Division, 
within the Office of Strategic Infrastructure. The NASA NEPA Manager, 
HQ/EMD would be delegated the responsibility for overseeing the 
implementation of NEPA by providing guidance and support to the Mission 
Directorates and NEPA Managers at ten NASA Centers and component 
facilities that oversee field-level NEPA compliance at their 
facilities. The responsibility for NEPA compliance resides with the 
applicable mission's, program's, or project's Responsible Official 
(decision maker) at NASA who may reside in a Mission Directorate for 
HQ-led missions/programs or at the Center level for Center-led 
missions/programs.
    Most NASA actions occur at the Center level and the program or 
project manager (owner of the action requiring NEPA review) coordinates 
with the respective Center NEPA Manager in completing an environmental 
checklist for all levels of the NEPA review, reviewing the list of 
extraordinary circumstances for CatExs, preparing additional NEPA 
documentation as required, and coordinating with the Responsible 
Official on planning and decision making. For those actions in which 
principal responsibility has not been assigned to a Center or Centers 
(e.g., Agency-wide missions, complex programmatic actions), the NASA 
NEPA Manager coordinates with the appropriate HQ Mission Directorates 
and with the Responsible Official for planning and decision making to 
complete the required NEPA documentation.
    For the past 20 years, HQ/EMD has maintained and supplemented the 
internal NASA Environmental Tracking System (NETS), which contains 
separate modules for NASA's environmental resource areas (e.g., 
cultural resources). The HQ and Center NEPA Managers use the NETS NEPA 
Module as a repository for Center NEPA reviews, EAs, and EISs. The 
module also auto-populates NASA's NEPA Library public website with EAs 
and EISs. NETS also includes an annual CatEx reporting feature that 
allows HQ and Center NEPA Managers to track the application of CatExs 
on an annual basis. The NETS NEPA Module was upgraded in 2018 to 
include a multi-Center action component which allows for efficient and 
consolidated reviews of NASA actions that involve more than one Center. 
Over the years, the NETS NEPA Module has provided supporting data used 
in revising NASA's NEPA regulations. Since the last revision of this 
regulation in 2012, NASA has prepared 35 EAs, four EISs, and, in 2018, 
applied over 2,400 CatExs.
    Projects for which NASA expects to use these NEPA procedures during 
the upcoming years include airborne science campaigns, construction of 
facilities projects, International Space Station resupply launches, 
sample return and other space flight missions, and research field 
campaigns.

Revised Categorical Exclusions

    Section 1216.304 of 14 CFR includes NASA's general provisions for 
compliance with NEPA through the use of CatExs and identifies actions 
categorically excluded from EA and EIS review. Within Sec.  
1216.304(d), NASA groups similar CatExs under five category headings: 
Administrative, Operations and Management, Research and Development 
(R&D), Real and Personal Property, and Aircraft and Airfield 
Activities. The heading ``Research and Development Activities''

[[Page 27807]]

is revised to ``Research, Development, and Science Activities.'' As 
part of this rulemaking, NASA proposes to amend 16 existing and add 
nine new categories of actions eligible for categorical exclusion. Many 
of the changes that NASA is proposing are administrative in nature to 
clarify application of a particular CatEx. Consistent with CEQ 
regulations at 40 CFR 1501.4 and 1508.1(d), Sec.  1216.304 of the 
proposed rule defines ``categorical exclusion'' to mean ``categories of 
agency actions that normally do not have a significant effect on the 
human environment.'' The new CatExs reflect NASA's experience with 
similar factual circumstances, which it has found to have no 
significant impacts on the ``human environment'' (as that term is 
broadly defined in CEQ regulations at 40 CFR 1508.1(m)).
    The rationale supporting the amended and new CatExs is set forth in 
NASA's Administrative Record for Updates to the National Aeronautics 
and Space Administration Categorical Exclusions (administrative 
record). The administrative record is summarized below and may be 
accessed in full via the online docket and at https://www.nasa.gov/emd/nepa. The CEQ regulations encourage Federal agencies to reduce 
paperwork and delay when complying with NEPA by using CatExs to define 
categories of actions that normally do not have a significant effect on 
the human environment and therefore do not require preparation of an 
EIS (40 CFR 1500.4(a) and 1500.5(a)). NASA believes that amending 
current and identifying new CatExs meets this intent. Where CatExs are 
added, amended, or consolidated, the supporting rationale is explained.
    Sec.  1216.304(a): The proposed edits would incorporate a 
previously defined acronym, improve grammar, and streamline text. A 
Record of Environmental Consideration (REC) is required in some cases 
and text has been added to further clarify that a REC is required to 
document the application of some NASA CatExs to a proposed action. A 
REC is a brief document used to describe a proposed action, identify 
the applicable categorical exclusion, determine whether an 
extraordinary circumstance exists that may require preparation of an EA 
or EIS, or explain why further environmental analysis is not required.
    Sec.  1216.304(b): The proposed revisions improve grammar and 
streamline text.
    Sec.  1216.304(c): This section identifies six extraordinary 
circumstances that the Agency must consider in determining whether 
application of the CatEx is appropriate. In considering these 
extraordinary circumstances, if NASA determines that a significant 
effect is likely or the effect is unknown, then NASA will prepare an 
EIS or EA, as appropriate. The update of this section reflects the 
deletion of one extraordinary circumstance from the original seven and 
proposed edits to five of the remaining six circumstances to improve 
grammar and streamline text.
    Sec.  1216.304(d): The proposed edits improve grammar and 
streamline text. Within the subheadings of this section are the CatEx 
categories, grouped primarily under activity headings (i.e., (1) 
Administrative Activities, (2) Operations and Management Activities, 
(3) Research, Development, and Science Activities, (4) Real and 
Personal Property Activities, and (5) Aircraft and Airfield 
Activities). In addition, the proposed edits to Sec.  1216.304(d) 
include reorganizing and renumbering the paragraph to accommodate new 
and revised CatExs.
    Sec.  1216.304(d)(1)(ii): The proposed edit incorporates consistent 
grammar in the section.
    Sec.  1216.304(d)(1)(iv): The proposed edit incorporates consistent 
grammar in the section.
    Sec.  1216.304(d)(1)(v): The proposed change separates this CatEx 
into two CatExs with the second becoming a new CatEx in Sec.  
1216.304(d)(1)(ix). NASA is making this change to establish a clear 
distinction between administrative and field activities. The edit 
retains the text that applies to ``information-gathering exercises'' 
and updates the sentence to be grammatically correct.
    Sec.  1216.304(d)(1)(vi): The proposed edits incorporate consistent 
grammar in the section.
    Sec.  1216.304(d)(1)(ix): This proposed new CatEx was previously 
part of Sec.  1216.304(d)(1)(v). The description was also updated to 
include monitoring wells as well as temporary equipment into the 
description of field study examples. The updated text was added to 
further clarify covered water sampling activities.
    Sec.  1216.304(d)(2)(i): NASA proposed to add examples of routine 
operations at the end of the CatEx description to further clarify the 
types of activities addressed with this CatEx.
    Sec.  1216.304(d)(2)(ii): The proposed edits incorporate consistent 
grammar in the section.
    Sec.  1216.304(d)(2)(iii): The proposed edits incorporate 
consistent grammar in the section.
    Sec.  1216.304(d)(2)(v): The proposed change clarifies that routine 
disposal of materials and wastes in accordance with applicable 
requirements is included in this CatEx. It would also add examples at 
the end of the CatEx description to further clarify the types of 
activities addressed with this CatEx.
    Sec.  1216.304(d)(2)(vi): This proposed new CatEx would cover 
habitat and species management conducted within the boundaries of NASA-
controlled properties in accordance with applicable Federal, state, or 
local requirements. NASA is making this change after reviewing other 
Federal agency CatExs for similar actions. For example, the U.S. 
Department of Agriculture, Forest Service's CatExs include similar 
examples to the proposed new CatEx in 36 CFR 220.6(e)(6)(iv), 
``Prescribed burning to reduce natural fuel build-up and improve plant 
vigor,'' and 36 CFR 220.6(e)(6)(ii), ``Thinning or brush control to 
improve growth or to reduce fire hazard including the opening of an 
existing road to a dense timber stand.'' Currently, NASA's habitat and 
species management is conducted under Sec.  1216.304(d)(2)(i). 
Establishing a distinct CatEx for these types of activities will permit 
NASA to specifically track habitat and species management. Based on a 
review of other agencies' CatExs, NASA has determined that they conduct 
similar activities, under similar circumstances, and therefore, this 
proposed new CatEx has been developed to cover these similar habitat 
and species management activities. The proposed new CatEx would require 
documentation with a REC.
    Sec.  1216.304(d)(2)(vii): This proposed new CatEx would cover 
short-term cleanup actions conducted in compliance with the Resource 
Conservation and Recovery Act or other similar authorities. NASA is 
making this change after reviewing other Federal agency CatExs for 
similar actions. NASA is proposing this CatEx based on the Department 
of Energy's (DOE's) CatEx B6.1 (10 CFR part 1021, appendix B). Examples 
of actions typically covered under DOE's CatEx that would also be 
covered by NASA's new proposed CatEx include the following: repair or 
replacement of leaking containers; perimeter protection if needed to 
reduce the spread of, or direct contact with, the contamination; 
segregation of wastes that may react with one another; and installation 
of fences, warning signs, or other security precautions if humans or 
animals have access to the release.
    Sec.  1216.304(d)(2)(viii): This proposed new CatEx would cover 
replacement of existing energy sources with alternative energy sources. 
NASA is making this change after reviewing other Federal agency CatExs 
for similar actions. NASA is proposing this CatEx based on the Defense 
Logistics Agency's (DLA's)

[[Page 27808]]

CatEx 37 (DLA Regulation 1000.22, Appendix A). Currently, replacing 
existing energy sources with alternative energy sources is conducted 
under Sec.  1216.304(d)(2)(i). Establishing a distinct CatEx for these 
types of activities will permit NASA to track proactive measures taken 
as part of sustainability initiatives.
    Sec.  1216.304(d)(2)(ix): This proposed new CatEx would cover 
routine maintenance, repair, and operation of transportation systems. 
Currently, these types of activities are conducted under Sec.  
1216.304(d)(2)(i). Establishing this distinct CatEx provides 
clarification between the types of activities covered under each CatEx 
and creates a more concise description.
    Sec.  1216.304(d)(3): The proposed edit would incorporate the term 
``science'' into the heading to clarify applicability.
    Sec.  1216.304(d)(3)(i): NASA proposes to add a sentence with a 
list of examples at the end of the CatEx to further clarify the types 
of research, development, testing, and evaluation activities that this 
CatEx covers.
    Sec.  1216. 304(d)(3)(ii): The proposed change would streamline the 
description of small quantities of radioactive materials use included 
in this CatEx. NASA proposes to add a list of examples at the end of 
the CatEx description to further clarify where radioactive materials 
may potentially be used.
    Sec.  1216.304(d)(3)(iii): The proposed edits would add examples of 
laser uses to further clarify the types of activities this CatEx 
covers.
    Sec.  1216.304(d)(3)(iv): This proposed new CatEx would cover the 
use of NASA-sponsored payloads as a distinct action separate from the 
platform on which it is carried. Over the past decade, NASA has 
launched hundreds of payloads on different platforms. NASA has found 
the environmental impacts from these activities are not significant. 
Based on this extensive experience and past analysis, NASA has 
determined that this type of activity fits the definition of a CatEx 
under 40 CFR 1501.4 and 1508.1(d), a category of action that normally 
does not have a significant effect on the human environment.
    Sec.  1216.304(d)(3)(v): This proposed new CatEx category would 
shift this category of action from ``NASA actions normally requiring an 
EA'' and would cover the return of samples categorized as an 
Unrestricted Earth Return (UER). Celestial bodies are classified based 
on their possibility of containing life as either UER or Restricted 
Earth Return (RER). The subcategory of solar system bodies identified 
to have no indigenous life forms (e.g., asteroids, comets, planets, 
dwarf planets, and planetary moons) are defined as UER by NASA's 
Planetary Protection Office, within the Office of Safety and Mission 
Assurance (https://sma.nasa.gov/sma-disciplines/planetary-protection). 
Over the past decades, NASA has been conducting or contributing to UER 
missions and has found the environmental impacts from these activities 
not to be significant. Based on this extensive experience and past 
analysis, NASA has determined that this type of activity fits the 
definition of a CatEx. RER sample return missions will still be 
addressed in Sec.  1216.306(b)(2).
    Sec.  1216.304(d)(4)(ii): The proposed edits would incorporate a 
previously defined acronym, improves grammar, and streamlines text.
    Sec.  1216.304(d)(4)(iii): The proposed edits would streamline 
text.
    Sec.  1216.304(d)(4)(iv): The proposed edits would incorporate 
consistent grammar in the section.
    Sec.  1216.304(d)(4)(vi): This proposed new CatEx would cover 
temporary changes in facility status of real property assets between 
active and inactive. Inactive status assumes that the asset will be 
needed in the future and the status change would not pose a significant 
environmental impact. The proposed CatEx would cover such a temporary 
status change. Currently, these types of activities are categorically 
excluded under Sec.  1216.304(d)(2)(i). Establishing this distinct 
CatEx would improve tracking for NEPA purposes of real property 
actions.
    Sec.  1216.304(d)(4)(vii): This proposed new CatEx would cover 
shifting personnel within existing infrastructure at NASA locations. 
While all actions under the Real and Personal Property Activities 
include the potential for personnel reductions, realignments, and 
relocations, they did not specifically identify this aspect in the 
descriptions. This proposed CatEx would clarify that shifts or 
reductions in personnel are covered and avoids unnecessary analysis to 
support previous, repeated conclusions. Based on past experience, such 
as the examples set forth in the administrative record, NASA has 
determined that its activities under this proposed CatEx would not 
result in significant environmental impacts.
    Sec.  1216.304(d)(5)(i): The proposed change would clarify that 
unmanned aircraft systems are included as aircraft.
    Sec.  1216.304(d)(5)(ii): The proposed change would clarify that 
unmanned aircraft systems are included as aircraft.
    Sec.  1216.304(e): The proposed edits would incorporate consistent 
grammar and clarify the Responsible Official's role in determining 
whether extraordinary circumstances exist that may preclude reliance on 
a categorical exclusion.
    Sec.  1216.304(f): The proposed edits would delete the previous 
Sec.  1216.304(f) as unnecessary.

Revisions to NASA Actions Normally Requiring Preparation of an EA

    Under paragraph (b), which lists NASA actions normally requiring an 
EA, NASA is proposing to remove two actions, add one new action, and 
amend three actions. Where actions normally requiring EAs are removed, 
added, or amended, the supporting rationale is explained. As noted 
above, NASA's NEPA procedures incorporate and supplement CEQ's NEPA 
implementing regulations at 40 CFR parts 1500 through 1508, but do not 
restate those regulations. NASA relies on the procedural and processing 
requirements of CEQ's regulations for EAs. To the extent that 
additional guidance is needed for case-by-case application of a 
particular requirement, for example selecting the appropriate method of 
public involvement, NASA will provide specific instructions in NASA 
NEPA policy (NPR 8580.1). In considering whether a proposed NASA action 
does, or does not, have significant effects, NASA will consider the 
effects of connected actions and whether mitigation measures may be 
implemented which avoid, minimize, or compensate for significant 
effects caused by a proposed action. If, after consideration of the 
applicable criteria, NASA determines that a Finding of No Significant 
Impact (FONSI) cannot be reached, NASA will prepare an EIS using the 
EA's analysis as a starting point for preparation of the EIS.
    Sec.  1216.305: The proposed edit would align the heading name to 
be consistent with Sec.  1216.306.
    Sec.  1216.305(a): The proposed edits would incorporate consistent 
grammar in the section and replace ``The Responsible Official'' with 
``NASA'' to be consistent with terminology in Sec.  1216.306.
    Sec.  1216.305(b): The proposed edit would remove ``typical'' from 
the heading as the term is redundant with ``normally,'' which is the 
term used in the CEQ regulations and CEQ's 2010 CE guidance.
    Sec.  1216.305(b)(1) (removed): NASA would remove the existing EA 
category because the launch aspect of the activity is the driver for 
potential environmental impacts rather than the spacecraft development 
and space flight projects/programs (i.e., payload systems). Launch 
environmental impacts are

[[Page 27809]]

considered in an EIS under Sec.  1216.306(b)(1) and other Agency launch 
vehicle NEPA documents. For example, in the 2013 Supplemental 
Environmental Assessment to the November 2007 Environmental Assessment 
for the Operation and Launch of the Falcon 1 and Falcon 9 Space 
Vehicles at Cape Canaveral Air Force Station Florida, the United States 
Air Force analyzed potential environmental impacts associated with the 
operation and launch of a newer version of the Falcon 9 (version 1.1). 
In addition, a new CatEx, Sec.  1216.304(d)(3)(iv), is proposed to 
address payload systems.
    The proposal would renumber the existing example under paragraph 
(b)(2) to paragraph (b)(1), incorporate consistent grammar, and 
streamline the description.
    Sec.  1216.305(b)(2): The proposed edit would expand the 
description of activities to include some activities previously 
identified as ``normally requiring an EIS.'' The change would shift the 
level of environmental analysis associated with major changes of a 
master plan from an EIS to an EA. This edit clarifies that major 
changes of a master plan normally do not result in significant 
environmental impacts. For example, the 2017 Supplemental Environmental 
Assessment for the NASA Langley Research Center Master Plan, 2016 
Programmatic Environmental Assessment for Adoption of JSC's Master 
Plan, and 2011 Programmatic Environmental Assessment for the NASA Jet 
Propulsion Laboratory Facility Master Plan Updates analyzed the 
potential environmental impacts related to master plan updates and 
resulted in FONSIs. NASA would tier from a programmatic EA to document 
the implementation of elements of Center Master Plans that are not 
adequately addressed in the EA.
    Center Master Plans outline NASA's infrastructure plans to support 
Center operations projected over a 20-year period. An example of a 
major change would be a proposal for a new facility that was not 
envisioned in the Center Master Plan. It could also include a new 
facility that is included in the Center Master Plan that NASA wishes to 
consider as a new construction site within the Center that could impact 
natural resources. NASA may determine that the new site would not 
propose a change in environmental effect, such as construction on a 
site where a building has recently been demolished. Should NASA 
determine through EA analysis that a FONSI cannot be reached, NASA will 
prepare an EIS. This amended EA category also reflects a change in 
numbering from paragraph (b)(3) to paragraph (b)(2).
    Sec.  1216.305(b)(3): The proposed edit would clarify text 
associated with the level of analysis to reflect the expectation of no 
major changes to established land use. This revised EA category also 
reflects a change in numbering from paragraph (b)(4) to paragraph 
(b)(3).
    Sec.  1216.305(b)(4): This proposed new EA category would move from 
``NASA actions normally requiring an EIS'' to ``NASA actions normally 
requiring an EA'' for launching a nuclear space system. NASA has 
prepared one EA (i.e., 1994 Final Environmental Assessment for the Mars 
Pathfinder Mission) and eight EISs over the last three decades for 
nuclear space system (radioisotope power systems (RPS))-enabled 
missions listed below:
    2014 Final Environmental Impact Statement for the Mars 2020 Mission 
and 2020 Supplemental Environmental Impact Statement,
    2006 Final Environmental Impact Statement for the Mars Science 
Laboratory Mission,
    2005 Final Environmental Impact Statement for the New Horizons 
Mission,
    2002 Final Environmental Impact Statement for the Mars Exploration 
Rover,
    1995 Cassini Final Environmental Impact Statement,
    1990 Final Environmental Impact Statement for the Ulysses Mission 
(Tier 2),
    1989 Final Environmental Impact Statement for the Galileo Mission 
(Tier 2), and
    1988 Final (Tier 1) Environmental Impact Statement for the Galileo 
and Ulysses Missions.
    The DOE served as a cooperating agency in the preparation of each 
EIS because of its technical expertise and jurisdiction by law over the 
special nuclear material used in the spacecraft. In addition to 
extensive study of the safety features of the RPS, the DOE conducted 
radiological consequence analyses for each mission. This analysis has 
consistently demonstrated the low probabilities of a launch or post-
launch mishap that would result in damage to the nuclear material's 
containment systems that would result in a release into the human 
environment with associated environmental impacts. None of the safety 
consequences and environmental analyses prepared over the 30-year span 
of these EISs conclude a significant environmental effect would be 
likely.
    To date, all NASA nuclear-enabled missions have launched from 
Kennedy Space Center (KSC) in Cape Canaveral, FL. Prior to the launch 
of the Mars 2020 mission in August 2020, the NASA-KSC completed 
consultation with the United States Fish and Wildlife Service (USFWS) 
under Section 7 of the Endangered Species Act. The USFWS concurred with 
NASA's determination that the proposed action (Mars 2020 launch) may 
affect, but is not likely to adversely affect, threatened or endangered 
species or result in the destruction of designated critical habitat. In 
its consultation, NASA and USFWS agreed that in the event of a launch 
mishap, NASA would enter into emergency consultation to assess and 
remediate potential effects, if any, on listed species located in the 
affected area. NASA's long history in evaluating the safety, 
reliability, and potential environmental impacts of the use of nuclear-
enabled spacecraft leads the Agency to conclude that the environmental 
effects of the use of nuclear-enabled spacecraft, even in the highly 
unlikely event of a launch or post-launch mishap, would not be 
significant. This conclusion leads the Agency to propose that for 
future nuclear-enabled missions, the appropriate starting level of its 
NEPA analysis is an EA, which, as is required by NEPA, would allow for 
the preparation of an EIS if the environmental effects were assessed to 
be significant. This change in the starting level of the NEPA analysis 
does not change NASA's long-standing commitment to conduct a rigorous, 
risk-informed safety analysis and launch authorization process as 
detailed in the new Presidential Memorandum signed August 20, 2019, 
Launch of Spacecraft Containing Space Nuclear Systems. Additional 
information on NASA's RPS-enabled missions is available at https://www.nasa.gov/emd/nepa/rps.
    Sec.  1216.305(b)(5) (removed): As previously discussed, NASA is 
proposing to establish a CatEx at Sec.  1216.304(d)(3)(v) for UER 
missions. As noted in the description that supports the proposed new 
CatEx, NASA has been conducting or contributing to UER missions over 
the past decades and has found the environmental impacts from these 
activities normally are not significant.

Revisions to NASA Actions Normally Requiring Preparation of an EIS

    Under the heading ``NASA actions normally requiring an 
environmental impact statement (EIS),'' NASA is proposing to amend the 
headings to reflect categories under Sec.  1216.306(b) that were 
identified as Sec.  1216.306(c), (d), (e), and (f) (i.e., the 
activities should

[[Page 27810]]

have been under the heading ``NASA actions normally requiring an EIS). 
In addition, NASA is proposing to remove two (existing Sec.  
1216.306(c) and (e)) and amend three EIS categories. The two removed 
categories have been modified and incorporated into NASA actions 
normally requiring an EA as discussed in the previous section. As noted 
above, NASA's NEPA procedures incorporate and supplement CEQ's NEPA 
implementing regulations at 40 CFR parts 1500 through 1508, but do not 
restate those regulations. NASA relies on the procedural and processing 
requirements of CEQ's regulations for NASA EISs. To the extent that 
additional guidance is needed for case-by-case application of a 
particular requirement, such as selecting the appropriate method of 
public involvement as required by 40 CFR 1506.6, NASA will provide 
specific instructions in the NASA NEPA Policy (NPR 8580.1).
    Sec.  1216.306: The heading title would include the acronym 
definition.
    Sec.  1216.306(a): The proposed edits would improve grammar and 
streamline text while also incorporating a cross reference to CEQ's 
regulation.
    Sec.  1216.306(b): The proposed edit would remove ``typical'' from 
the heading as the term is redundant with ``normally,'' which is the 
term used in the CEQ regulations.
    Sec.  1216.306(b)(1): The edit adds ``NASA-developed'' to clarify 
that an EIS will be prepared when NASA proposes to develop a new space 
launch system, such as the EIS prepared (https://www.nasa.gov/directorates/heo/library/nepa/orion_sls.html) for the new launch 
vehicle that NASA is currently developing (https://www.nasa.gov/exploration/systems/sls/indix.html).
    Sec.  1216.306(b)(2): This proposed revised category of NASA 
actions normally requiring preparation of an EIS would replace the 
parenthetical reference to appendix A with the definition from appendix 
A, remove reference to a subcommittee that is no longer active, and 
restructure the description to clarify the aspect of NASA activities 
that would potentially result in environmental impacts necessitating an 
EIS level of analysis. For example, it is the management of restricted 
Earth return samples from solar system bodies and not the development 
of the space flight program for those returned samples that potentially 
result in environmental impacts. This revision also expands the 
description to include ground systems that will be needed to process 
and manage an RER sample such as recovery, transport, and curation. 
This revised category of actions normally requiring preparation of an 
EIS also reflects a change in numbering from paragraph (d) to paragraph 
(b)(2).
    Sec.  1216.306(b)(3): This proposed revised category of NASA 
actions normally requiring preparation of an EIS would add ``and 
natural'' to clarify that effects are potentially on the human and 
natural environment and remove text that is repetitive as it is not 
necessary to indicate that if an existing EIS covered the scope of the 
master plan, another EIS would not be required. This revised category 
of actions normally requiring preparation of an EIS also reflects a 
change in numbering from paragraph (f) to paragraph (b)(3).

Other Amendments

    Additional amendments are proposed in sections of the rule, other 
than Sec. Sec.  1216.304, 1216.305, and 1216.306. These proposed edits 
are described below.
    Sec.  1216.300(b): The proposed edits would streamline text.
    Sec.  1216.302(a): The proposed edit adds the name and 
responsibilities of the SAO.
    Sec.  1216.302(a)(1): The proposed edits would shift the definition 
of SEO from Sec.  1216.302(a), incorporate consistent grammar, and 
streamline the description.
    Sec.  1216.302(a)(2): The proposed edits would shift numbering due 
to the insert of Sec.  1216.302(a)(1) and streamline the description.
    Sec.  1216.302(a)(3): The proposed edits would shift numbering due 
to the insert of Sec.  1216.302(a)(1) and streamline the description.
    Sec.  1216.302(b): The proposed edits would simplify and clarify 
identification of decision makers as the NASA official with authority 
to commit the Agency to take the proposed action.
    Sec.  1216.302(c): The proposed edits would remove unnecessary 
text.
    Sec.  1216.303(a): The proposed edits would update text.
    Sec.  1216.303(a)(1): The proposed edits would incorporate 
consistent grammar.
    Sec.  1216.303(a)(2): The proposed edits would update NASA's policy 
on NEPA and public involvement.
    Sec.  1216.303(a)(3): The proposed edits would clarify text and 
incorporate consistent grammar.
    Sec.  1216.303(b): The proposed edits streamline text.
    Sec.  1216.303(c): The proposed edits would incorporate consistent 
grammar and add ``public health and safety'' and ``security'' as 
factors to be considered for a NASA proposed action. In addition, a 
cross reference to CEQ's regulation would be incorporated.
    Sec.  1216.303(d): This proposed new description under the NEPA 
process in NASA planning and decision making identifies when NASA uses 
a REC. For example, RECs are used to document: application of a 
specific Categorical Exclusion (CatEx); adoption of a draft or final 
EIS, EA, or portion thereof; reevaluation of an existing NEPA document; 
and determination on whether an action fits within an existing NEPA 
document, including a programmatic NEPA document. Adoption of the 
proposed new description would avoid unnecessary analysis to support 
previous, repeated conclusions.
    Sec.  1216.307: The proposed edits would add two paragraphs, Sec.  
1216.307(a) and (b), to clarify the conditions for tiering within 
NASA's process and incorporate consistent grammar. This change is 
intended to improve NASA efficiency and maximize the use of 
programmatic documents to streamline NASA's NEPA process.
    Sec.  1216.308: The proposed edits would clarify NASA's process for 
preparing supplemental NEPA documents. The proposed edits would also 
incorporate text to be consistent with CEQ regulations. The proposed 
edits also include incorporation of paragraphs (Sec.  1216.308(a) 
through (d)) and add text that identifies NASA's process for completion 
of Supplement Analysis. A Supplement Analysis is a NASA document used 
to determine whether a new or supplemental EA or EIS should be prepared 
or to support a decision to prepare a new EA or EIS.
    Sec.  1216.309: The proposed edit would incorporate consistent 
grammar.
    Sec.  1216.310(a): The proposed edit would incorporate consistent 
grammar.
    Sec.  1216.311(a): The proposed revisions would incorporate edits 
for consistency with the CEQ guidance memorandum ``Emergencies and the 
National Environmental Policy Act Guidance'' (85 FR 60137 (Sept. 14, 
2020)), and incorporate consistent grammar. The proposed revision also 
would remove ``in accordance with the provisions in sections 305 and 
307 of this subpart,'' as it duplicates text that refers to completion 
of NEPA analysis.
    Sec.  1216.311(a)(1): The proposed revisions incorporate edits for 
consistency with CEQ's updated emergencies guidance, incorporate 
consistent grammar, and streamline text.
    Sec.  1216.311(a)(2): The proposed revision shifts Sec.  
1216.311(b) to the previously reserved Sec.  1216.311(a)(2). The 
proposed revisions would incorporate edits for consistency with CEQ's 
updated emergencies guidance, incorporate consistent grammar,

[[Page 27811]]

streamline text, and incorporate elevation of oversight of compliance 
with NEPA in an emergency to the SAO rather than the SEO.
    Sec.  1216.311(b): The proposed revision would reflect a shift in 
subparagraph numbering and incorporate edits for consistency with CEQ's 
updated emergencies guidance, incorporate consistent grammar, 
streamline text, and incorporate elevation of oversight of compliance 
with NEPA in an emergency to the SAO rather than the SEO.
    Appendix A to Subpart 1216.3: The proposed edit removes definitions 
and incorporates new acronyms.

Regulatory Analysis

A. Executive Order (E.O.) 12866--Regulatory Planning and Review

    E.O.s 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, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. This proposed rule has 
been designated a ``significant regulatory action'' although not 
economically significant, under section 3(f) of E.O. 12866. 
Accordingly, the proposed rule has been reviewed by the Office of 
Management and Budget.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to prepare an initial regulatory flexibility analysis to be 
published at the time the proposed rule is published. This requirement 
does not apply if the agency ``certifies that the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities'' (5 U.S.C. 603). This proposed rule modifies 
existing policies and procedural requirements for NASA compliance with 
NEPA. The proposed rule makes no substantive changes to requirements 
imposed on applicants for licenses, permits, financial assistance, and 
similar actions as related to NEPA compliance. Therefore, NASA 
certifies this proposed rule would not have a ``significant economic 
impact on a substantial number of small entities.''

C. Review Under the Paperwork Reduction Act

    This proposed rule does not contain any information collection 
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

D. Environmental Review Under the National Environmental Policy Act

    The proposed rule would revise agency procedures and guidance for 
implementing NEPA. NASA NEPA procedures are procedural guidance to 
assist in the fulfillment of agency responsibilities under NEPA but are 
not the agency's final determination of what level of NEPA analysis is 
required for a particular proposed action. The CEQ sets forth the 
requirements for establishing agency NEPA procedures in its regulations 
at 40 CFR 1507.3. The CEQ regulations do not require agencies to 
conduct NEPA analyses or prepare NEPA documentation when establishing 
their NEPA procedures. The determination that establishing agency NEPA 
procedures does not require supporting NEPA analysis and documentation 
has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 
2d 962, 972-73 (S.D. Ill 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 
2000).

E. Review Under Executive Order 13132

    NASA has considered this proposed rule under the requirements of 
E.O. 13132, Federalism. The Agency has concluded that the rule conforms 
with the federalism principles set out in this E.O. will not impose any 
compliance costs on the states and will not have substantial direct 
effects on the states or the relationship between the National 
Government and the states or on the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Agency has determined that no further assessment of federalism 
implications is necessary.

F. Review Under the Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of 
1995 (2 U.S.C. 1531-1538), NASA has assessed the effects of the 
proposed rule on state, local, and Tribal governments, and the private 
sector. This proposed rule would not compel the expenditure of $100 
million or more by any state, local, or Tribal government, or anyone in 
the private sector. Therefore, this proposed rule is not subject to the 
requirements of section 202 and 205 of the UMRA.

G. Expected Impact of the Proposed Rule

    NASA does not expect this proposed rule to have any economic impact 
on the overall economy of the United States; state, local, or Tribal 
governments or communities; or any private party involved in commercial 
space launch activities at NASA facilities. Given the most recent data 
NASA has available, most NASA actions fall within the scope of a CatEx 
(98 percent categorically excluded, 1.4 percent had an EA/Finding of No 
Significant Impact, and 0.16 percent had an EIS/Record of Decision). By 
expanding the list of actions covered by a CatEx, NASA would promote 
more efficient NEPA compliance without sacrificing the integrity of the 
environmental impact review process for those actions which may require 
an EA or EIS.
    The proposed updates to several existing NASA CatExs and the 
addition of nine new CatExs are intended to further streamline NASA 
NEPA compliance for actions that, individually or cumulatively, do not 
have a significant impact on the quality of the human environment. The 
proposed rule does not materially alter the budgetary impact of 
entitlements, grants, NASA loan programs, or the rights and obligations 
of recipients thereof. The proposed rule does not raise novel legal or 
policy issues; rather it promotes consistency with the CEQ's NEPA 
implementing regulations, thereby providing more regulatory certainty 
concerning NEPA compliance obligations to both NASA programs and 
commercial space operators who may propose actions that would occur on 
NASA jurisdictional facilities. Therefore, this proposed rule is not 
expected to have any adverse effect, economically or otherwise, on 
NASA, any other Federal, state, local, or Tribal entity or any private 
party who may propose an action that would occur at a NASA 
jurisdictional facility.

List of Subjects in 14 CFR Part 1216

    Environmental impact statements, Flood plains, Foreign relations.
    For the reasons given in the preamble, NASA proposes to amend 14 
CFR part 1216 as follows:

PART 1216--ENVIRONMENTAL QUALITY

0
1. Add an authority citation for part 1216 to read as follows:

    Authority: 51 U.S.C. 20101 et seq.; 42 U.S.C. 4321 et seq.; 40 
CFR parts 1500 through 1508.

Subpart 1216.3--Procedures for Implementing the National 
Environmental Policy Act (NEPA)

0
2. The authority citation for subpart 1216.3 is revised to read as 
follows:



[[Page 27812]]


    Authority:  42 U.S.C. 2451 et seq.; 42 U.S.C. 4321 et seq.; 42 
U.S.C. 4371 et seq.; 42 U.S.C. 7609; E.O. 11514, 35 FR 4247, 3 CFR, 
1966-1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 
CFR, 1977 Comp., p. 123; E.O. 12114, 44 FR 1957, 3 CFR, 1979 Comp., 
p. 356; and 40 CFR parts 1500 through 1508.

0
3. Amend Sec.  1216.300 by revising paragraph (b) to read as follows:


Sec.  1216.300  Scope.

* * * * *
    (b) Through this subpart, NASA adopts the Council on Environmental 
Quality (CEQ regulations implementing NEPA (40 CFR parts 1500 through 
1508) and supplements those regulations with this subpart, for actions 
proposed by NASA that are subject to NEPA. This subpart and NASA's NEPA 
policy are available on NASA's Public Portal at https://www.nasa.gov/emd/nepa.
0
4. Revise Sec.  1216.302 to read as follows:


Sec.  1216.302  Responsibilities.

    (a) The NASA Senior Agency Official (SAO), is the Associate 
Administrator, Mission Support Directorate. The SAO is responsible for 
overall Agency NEPA compliance, including integration of NEPA into the 
Agency's planning and decision making and resolving implementation 
issues.
    (1) The NASA Senior Environmental Official (SEO) is the Assistant 
Administrator, Office of Strategic Infrastructure (OSI). The SEO, in 
consultation with the SAO, is responsible for development and 
implementation of NASA NEPA policy requirements and guidance which 
fully integrate NEPA compliance into Agency planning and decision-
making processes. To the extent the CEQ's implementing regulations at 
40 CFR parts 1500 through 1508 reserve a specific authority to the SAO, 
the SAO is the responsible NASA official for resolving matters related 
to that specific authority.
    (2) The NASA Headquarters/Environmental Management Division (HQ/
EMD), in consultation with the SEO, is responsible for implementing 
NEPA functions and guiding NASA's integration of NEPA into the Agency's 
planning and decision making. HQ/EMD provides oversight of all NASA 
entities in implementing their assigned responsibilities under NEPA. 
HQ/EMD, in coordination with the Center Environmental Management 
Office, is responsible for determining the appropriate level of NEPA 
documentation and maintaining a publicly accessible internet portal 
which includes information on the status of environmental impact 
statements (EISs) and other elements of NASA's NEPA program (https://www.nasa.gov/emd/nepa).
    (3) Each NASA Center has an environmental management office that 
directs and implements the NEPA process, such as evaluating proposed 
actions; developing, reviewing, and approving required documentation; 
and advising Center-level program and project managers.
    (b) The ``Responsible Official'' is the NASA official who will 
ensure that planning and decision making for each proposed Agency 
action complies with the regulations in this subpart and with Agency 
NEPA policy and guidance provided by the SAO, SEO, HQ/EMD, and the 
Center's environmental management office as applicable.
    (c) NASA must comply with this subpart when considering issuance of 
a permit, lease, easement, or grant to a non-Federal party and may seek 
such non-Federal party's assistance in obtaining necessary information 
and completing the NEPA process.
0
5. Revise Sec.  1216.303 to read as follows:


Sec.  1216.303  NEPA process in NASA planning and decision making.

    (a) NEPA is a procedural statute intended to ensure Federal 
agencies consider the environmental impacts of their proposed actions 
in the decision-making process. Full integration of the NEPA process 
with NASA project and program planning improves Agency decisions and 
ensures:
    (1) Consideration of sustainability, environmental stewardship, and 
compliance with applicable environmental statutes, regulations, and 
policies.
    (2) NASA's analyses and documentation are prepared using a process 
that is transparent to the public, including opportunities for receipt 
and consideration of public comment, when appropriate.
    (3) Potential program and project risks and delays are minimized.
    (b) In considering whether the effects of a proposed action are 
significant and determining the appropriate level of NEPA review and 
documentation (i.e., EIS, environmental assessments (EA), categorical 
exclusions (CatEx)), NASA shall consider and analyze the potentially 
affected environment (i.e., affected area [national, regional, or 
local] and resources located therein) and the degree of the effects of 
the proposed action (e.g., short- and long-term effects, effects both 
beneficial and adverse, effects on public health and safety, effects 
that would violate Federal, state, Tribal, or local law protecting the 
environment).
    (c) NASA shall consider the reasonably foreseeable environmental 
impacts of a proposed Agency action, along with technical, economic, 
public health and safety, security, and other factors that are 
reasonably foreseeable, beginning in the early planning stage of a 
proposed action. NASA will not take any action that would have an 
adverse environmental impact or limit the choice of reasonable 
alternatives prior to completing NEPA review except as provided in 40 
CFR 1506.1.
    (d) Records of Environmental Consideration (RECs) will be used to 
document:
    (1) Application of specific categorical exclusions to proposed 
actions;
    (2) Adoption of a Federal draft or final NEPA documents;
    (3) Reevaluation of an existing NEPA document; and
    (4) Determination of whether an action fits within an existing NEPA 
document, including a programmatic NEPA document.
0
6. Amend Sec.  1216.304 by:
0
a. Revising paragraphs (a), (b), (c) introductory text, (c)(1), and 
(c)(3) through (6);
0
b. Removing paragraph (c)(7);
0
c. Revising paragraphs (d) introductory text and (d)(1)(ii) and (iv) 
through (vi);
0
d. Adding paragraph (d)(1)(ix);
0
e. Revising paragraphs (d)(2)(i) through (iii) and (v);
0
f. Adding paragraphs (d)(2)(vi) through (ix);
0
g. Revising paragraphs (d)(3) and (d)(4)(ii) through (iv);
0
h. Adding paragraphs (d)(4)(vi) and (vii);
0
i. Revising paragraphs (d)(5)(i) and (ii) and (e); and
0
j. Removing paragraph (f).
    The revisions and additions read as follows:


Sec.  1216.304  Categorical exclusions.

    (a) Categorical exclusions (CatExs) are categories of Agency 
actions that normally do not have a significant effect on the human 
environment and therefore do not require preparation of an EA or EIS. 
CatExs reduce paperwork, improve Government efficiency, and eliminate 
delays in initiating and completing proposed actions having no 
significant environmental impact. For some CatExs, as indicated in 
paragraph (d) of this section, a REC is required.
    (b) Application of CatExs and presence of extraordinary 
circumstances:
    (1) A proposed action may be categorically excluded if the action 
fits

[[Page 27813]]

within the categories listed in paragraph (d) of this section and it 
does not involve any extraordinary circumstances in which a normally 
excluded action may have a significant effect.
    (2) If an extraordinary circumstance as described in paragraph (c) 
of this section is present, NASA may nevertheless categorically exclude 
the proposed action if the action fits within the categories listed in 
paragraph (d) of this section and NASA determines that implementation 
of mitigation measures, such as relocation of the proposed action to an 
alternative site or limiting construction activities to certain 
seasonal periods of the year to avoid the extraordinary circumstance(s) 
in question, are sufficient to allow the proposed action to be 
categorically excluded.
    (c) Extraordinary circumstances include situations where the 
proposed action:
    (1) Has a reasonable likelihood of having a significant effect on 
public health and safety or the human environment.
* * * * *
    (3) Is of significantly greater scope or size than is normal for 
the particular category of action.
    (4) Has a reasonable likelihood of having effects that would 
violate Federal, state, Tribal, or local laws, or other enforceable 
requirements applicable to environmental protection.
    (5) May adversely affect sensitive resources, such as, but not 
limited to, federally listed threatened or endangered species, their 
designated critical habitat, wilderness areas, floodplains, wetlands, 
aquifer recharge areas, coastal zones, wild and scenic rivers, and 
significant fish or wildlife habitat, unless the impact has been 
resolved through another environmental review process; e.g., the Clean 
Water Act (CWA) or the Coastal Zone Management Act (CZMA).
    (6) May adversely affect national natural landmarks or cultural or 
historic resources, including, but not limited to, property listed on 
or eligible for listing on the National Register of Historic Places, 
unless the impact has been resolved through another review process; 
e.g., the National Historic Preservation Act (NHPA).
    (d) The following actions normally do not have a significant effect 
on the human environment and are categorically excluded from the 
requirement to prepare an EA or EIS:
    (1) * * *
    (ii) Issuing procedural rules, manuals, directives, and 
requirements.
* * * * *
    (iv) Preparing documents, including design and feasibility studies, 
analytical supply and demand studies, reports and recommendations, 
master and strategic plans, and other advisory documents.
    (v) Information-gathering exercises, such as inventories, audits, 
and studies.
    (vi) Preparing and disseminating information, including document 
mailings, publications, classroom materials, conferences, speaking 
engagements, websites, and other educational/informational activities.
* * * * *
    (ix) Field studies, including water sampling, monitoring wells, 
cultural resources surveys, biological surveys, geologic surveys, 
modeling or simulations, routine data collection and analysis, and/or 
temporary equipment.
    (2) * * *
    (i) Routine maintenance, minor construction or rehabilitation, 
minor demolition, minor modification, minor repair, and continuing or 
altered operations at, or of, existing NASA or NASA-funded or -approved 
facilities and equipment, such as buildings, roads, grounds, utilities, 
communication systems, and ground support systems (e.g., space tracking 
and data systems). This includes routine operations such as security, 
public health and safety, and environmental services.
    (ii) Installing or removing equipment, including component parts, 
at existing Government or private facilities.
    (iii) Contributing equipment, software, technical advice, 
exchanging data, and consulting with other agencies and public and 
private entities.
* * * * *
    (v) Routine packaging, labeling, storage, transportation, and 
disposal of materials and wastes, in accordance with applicable 
Federal, state, Tribal, or local laws or requirements. Examples include 
but are not limited to hazardous, non-hazardous, and other regulated 
materials and wastes.
    (vi) Habitat and species management activities conducted within the 
boundaries of NASA-controlled properties in accordance with applicable 
Federal, state, or local requirements. Examples include but are not 
limited to restoration of unique or critical habitat; thinning or brush 
control to improve growth of natural habitat, reduce invasive species, 
or reduce fire hazard; prescribed burning to reduce natural fuel build-
up, reduce invasive species, or improve native plant vigor; planting 
appropriate vegetation that does not include noxious weeds or invasive 
plants; or wildlife management activities (REC required).
    (vii) Small-scale, short-term cleanup actions under the Resource 
Conservation and Recovery Act or other authorities to reduce risk to 
human health or the environment from the release or imminent and 
substantial threat of release of a hazardous substance other than high-
level radioactive waste and spent nuclear fuel, including treatment 
(such as incineration, encapsulation, physical or chemical separation, 
and compaction), recovery, storage, or disposal of wastes at existing 
facilities currently handling the type of waste involved in the action.
    (viii) Replacement of existing energy sources with alternative or 
renewable energy sources that comply with existing permit conditions.
    (ix) Routine maintenance, repair, and operation of vessels 
(including unmanned autonomous surface vessels), aircraft (including 
unmanned aircraft systems), overland/surface transportation vehicles, 
and other transportation systems as applicable. Examples include but 
are not limited to transportation or relocation of NASA equipment and 
hardware by barge, aircraft, or surface transportation system (e.g., 
tractor trailer or railroad); retrieval of spent solid rocket boosters 
by vessel; repair or overhaul of vessel, aircraft, or surface 
transportation systems that do not result in a change in the 
environmental impacts of their normal operation.
    (3) Research, Development, and Science Activities including:
    (i) Research, development, testing, and evaluation in compliance 
with all applicable Federal, state, Tribal, or local laws or 
requirements and Executive orders. This includes the research, 
development, testing, and evaluation of scientific instruments proposed 
for use on spacecraft, aircraft (including unmanned aircraft systems), 
sounding rockets, balloons, laboratories, watercraft, or other outdoor 
activities.
    (ii) Use of small quantities of radioactive materials used for 
instrument detectors, calibration, and other purposes. Materials may be 
associated with the proposed use on spacecraft, aircraft (including 
unmanned aircraft systems), sounding rockets, balloons, laboratories, 
watercraft, or other outdoor activities.
    (iii) Use of lasers for research and development, scientific 
instruments and measurements, and distance and ranging, where such use 
meets all applicable Federal, state, Tribal, or local laws or 
requirements and Executive orders. This includes lasers associated with 
spacecraft, aircraft (including unmanned aircraft systems), sounding 
rockets, balloons, laboratories, watercraft, or other outdoor 
activities.

[[Page 27814]]

    (iv) Use of non-space nuclear system payloads on various platforms 
(e.g., launch vehicle, sounding rocket, scientific balloon, and 
aircraft) (REC required).
    (v) Return of samples from solar system bodies (e.g., asteroids, 
comets, planets, dwarf planets, and planetary moons) to Earth when 
categorized as an Unrestricted Earth Return. NASA defines this activity 
as collecting extraterrestrial materials from solar system bodies, 
deemed by scientific opinion to have no indigenous life forms, and 
returning those samples to Earth (REC required).
    (4) * * *
    (ii) Granting or accepting easements, leases, licenses, rights-of-
entry, and permits to use NASA property, or any non-NASA property, for 
activities that would be categorically excluded in accordance with this 
section (REC required).
    (iii) Transfer or disposal of real property, property rights, or 
interests if a resulting change in use is a use that would be 
categorically excluded under this section (REC required).
    (iv) Transferring real property administrative control to another 
Federal agency, including the return of public domain lands to the 
Department of the Interior (DoI) or other Federal agencies, and 
reporting of property as excess and surplus to the General Services 
Administration (GSA) for disposal, when the agency receiving 
administrative control (or GSA, following receipt of a report of 
excess) shall complete any necessary NEPA review prior to any change in 
land use (REC required).
* * * * *
    (vi) Change in the facility status of real property assets (e.g., 
active or inactive).
    (vii) Reductions, realignments, or 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).
    (5) * * *
    (i) Periodic aircraft (including unmanned aircraft systems) flight 
activities, including training and research and development, which are 
routine and comply with applicable Federal, state, Tribal, or local 
laws or requirements, and Executive orders.
    (ii) Relocation of similar aircraft (including unmanned aircraft 
systems) not resulting in a substantial increase in total flying hours, 
number of aircraft operations, operational parameters (e.g., noise), or 
permanent personnel or logistics support requirements at the receiving 
installation (REC required).
    (e) The Responsible Official shall review the proposed action in 
its early planning stage and consider the scope of the action, the 
potentially affected environment, and the degree of the reasonably 
foreseeable effects of the action to determine whether extraordinary 
circumstances exist that could result, either individually or 
cumulatively, in significant environmental impacts. If extraordinary 
circumstances exist, the Responsible Official must determine whether 
application of the categorical exclusion to the proposed action is 
appropriate or whether preparation of an EA or EIS is required.
0
7. Revise Sec.  1216.305 to read as follows:


Sec.  1216.305  Actions normally requiring an environmental assessment 
(EA).

    (a) NASA shall prepare an EA, which complies with 40 CFR 1501.5, 
when a proposed action is not categorically excluded and is not likely 
to have significant effects or when the significance of the effects is 
unknown. NASA shall consider the potentially affected environment and 
degree of the effects of the action when determining whether to prepare 
an EA.
    (b) NASA actions normally requiring an EA include:
    (1) Altering the ongoing operations at a NASA Center where the 
significance of the environmental effect(s) is unknown.
    (2) Construction or modifications of facilities that represent a 
major change to an existing master plan and could result in a change in 
the environmental effect(s).
    (3) Actions that are expected to result in major changes to 
established land use.
    (4) Launching a spacecraft containing a space nuclear system. Space 
nuclear systems include radioisotope power systems, such as 
radioisotope thermoelectric generators and radioisotope heater units, 
and fission systems used for surface power and spacecraft propulsion.
0
8. Revise Sec.  1216.306 to read as follows:


Sec.  1216.306  Actions normally requiring an environmental impact 
statement (EIS).

    (a) NASA shall prepare an EIS for actions that are likely to 
significantly impact the quality of the human environment, including 
actions for which an EA demonstrates that significant environmental 
impacts will potentially occur which will not be reduced or eliminated 
by changes to the proposed action or mitigation of its potentially 
significant environmental impacts. An EIS shall be prepared and 
published in accordance with CEQ's implementing regulations (40 CFR 
part 1502).
    (b) NASA actions normally requiring an EIS include:
    (1) Development and operation of new NASA-developed launch vehicles 
or space transportation systems.
    (2) Management, including recovery, transport, and curation, of 
sample returns to Earth from solar system bodies (such as asteroids, 
comets, planets, dwarf planets, and planetary moons) that would receive 
a Restricted Earth Return categorization. NASA requires such a mission 
to include additional measures to ensure any potential indigenous life 
form would be contained so it could not adversely impact humans or 
Earth's environment.
    (3) Substantial construction projects expected to result in 
significant effect(s) on the quality of the human and natural 
environment, when such construction and its effects are not within the 
scope of an existing master plan.
0
9. Revise Sec.  1216.307 to read as follows:


Sec.  1216.307  Programmatic documents and tiering.

    (a) For actions that require EAs or EISs, NASA encourages 
programmatic-level analysis for actions that are similar in nature, 
broad in scope, or likely to have similar environmental effects. 
Programmatic NEPA analyses may take place in the form of an EA or EIS.
    (b) Tiering from previously prepared EISs or EAs is appropriate 
when it would eliminate repetitive discussions of the same issues and 
exclude from consideration issues already decided. Tiering from a 
programmatic-level NEPA document is appropriate for site- or project-
specific actions that are included within the scope of the 
programmatic-level analysis.
0
10. Revise Sec.  1216.308 to read as follows:


Sec.  1216.308  Supplemental EAs and EISs.

    (a) In cases where a major Federal action remains to occur, 
supplemental documentation may be required for previously prepared EAs 
or EISs under the following circumstances:
    (1) If substantial changes are made to the proposed action that are 
relevant to environmental concerns; or
    (2) There are significant new circumstances or information relevant 
to environmental concerns and bearing on the proposed action and its 
impacts; or

[[Page 27815]]

    (3) NASA determines that the purposes of NEPA will be furthered by 
doing so.
    (b) The preparation of a supplemental EA or EIS shall be undertaken 
using the same procedural requirements set forth in 40 CFR 1501.5 or 40 
CFR part 1502, as applicable; however, in the event a supplement to an 
EIS is required, scoping shall not be required unless, at NASA's 
discretion and in consideration of the factors and requirements of 40 
CFR 1501.9, it is determined to be necessary or would otherwise further 
the purposes of NEPA.
    (c) When it is unclear if an EA or EIS supplement is required, NASA 
may prepare a Supplement Analysis.
    (1) The Supplement Analysis will discuss the circumstances that are 
pertinent to deciding whether to prepare a supplemental EA or EIS.
    (2) The Supplement Analysis will contain sufficient information for 
NASA to determine whether:
    (i) An existing EA or EIS should be supplemented;
    (ii) A new EA or EIS should be prepared; or
    (iii) No further NEPA documentation is required.
    (3) NASA shall make the determination and the related Supplement 
Analysis available to the public for information.
    (d) When applicable, NASA shall incorporate the determination and 
supporting Supplement Analysis made under paragraph (b) of this 
section, into the administrative record related to the action that is 
the subject of the EA or EIS supplement or determination.
0
11. Revise Sec.  1216.309 to read as follows:


Sec.  1216.309  Mitigation and monitoring.

    When the analysis proceeds to an EA or EIS and mitigation measures 
are adopted for the purpose of avoiding or reducing the significance of 
environmental impacts, such mitigation measures will be identified in 
the EA Finding of No Significant Impact (FONSI) or the EIS Record of 
Decision (ROD). NASA shall implement mitigation measures (including 
adaptive management strategies, where appropriate) consistent with 
applicable FONSIs and/or RODs and shall monitor their implementation 
and effectiveness. The Responsible Official shall ensure that funding 
for such mitigation measures is included in the program or project 
budget.
0
12. Amend Sec.  1216.310 by revising paragraph (a) to read as follows:


Sec.  1216.310  Classified actions.

    (a) The classified status of a proposed action does not relieve 
NASA of the requirement to assess, document, and consider the 
environmental impacts of a proposed action.
* * * * *
0
13. Revise Sec.  1216.311 to read as follows:


Sec.  1216.311  Emergency responses.

    (a) When the Responsible Official determines that emergency 
circumstances exist which make it necessary to take immediate response 
and/or recovery action(s) before preparing a NEPA analysis, then the 
following provisions apply:
    (1) The Responsible Official may undertake immediate emergency 
response and/or recovery action(s) necessary to protect life, property, 
or valuable resources. When taking such action(s), the Responsible 
Official shall, to the extent practicable, mitigate foreseeable adverse 
environmental impacts.
    (2) At the earliest practicable time, the Responsible Official 
shall notify the SAO of the emergency and any past, ongoing, or future 
NASA emergency response and/or recovery action(s). The SAO shall 
determine if NEPA applies and the appropriate level of NEPA analysis to 
document the emergency. If the emergency response and/or recovery 
action(s) will reasonably result in significant environmental impacts, 
the SAO shall consult with the CEQ about alternative arrangements for 
compliance with NEPA.
    (b) If the Responsible Official proposes emergency response and/or 
recovery actions that will continue beyond those needed to immediately 
protect life, property, and valuable resources, the Responsible 
Official shall consult with the SAO to determine the appropriate level 
of NEPA compliance. If continuation of the emergency actions will 
reasonably result in significant environmental impacts, the SAO shall 
consult with the CEQ about alternative arrangements for compliance.
0
14. Revise appendix A to subpart 1216.3 to read as follows:

Appendix A to Subpart 1216.3 of Part 1216--Acronyms

CatEx Categorical Exclusion
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CWA Clean Water Act
CZMA Coastal Zone Management Act
DoI (U.S.) Department of the Interior
EA Environmental Assessment
EMD Environmental Management Division
EIS Environmental Impact Statement
FONSI Finding of No Significant Impact
FR Federal Register
GSA General Services Administration
HQ Headquarters
NASA National Aeronautics and Space Administration
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
REC Record of Environmental Consideration
RHU Radioisotope Heater Unit
RPS Radioisotope Power Systems
SAO Senior Agency Official
SEO Senior Environmental Official
OGC Office of the General Counsel
ROD Record of Decision
U.S.C. United States Code

Nanette Smith,
Team Lead, NASA Directive and Regulations.
[FR Doc. 2023-09038 Filed 5-2-23; 8:45 am]
BILLING CODE 7510-13-P