Notice of Adoption of Categorical Exclusions Under the National Environmental Policy Act, 92911-92914 [2024-27545]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Air Force

[Federal Register Volume 89, Number 227 (Monday, November 25, 2024)]
[Notices]
[Pages 92911-92914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27545]


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DEPARTMENT OF DEFENSE

Department of the Air Force


Notice of Adoption of Categorical Exclusions Under the National 
Environmental Policy Act

AGENCY: Department of the Air Force, Department of Defense.

ACTION: Notice of adoption of categorical exclusions.

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SUMMARY: The Department of the Air Force (DAF) has identified 
categorical exclusions (CATEXes) established by the Department of the 
Army (DA), Department of the Navy (DON), National Aeronautics and Space 
Administration (NASA), Tennessee Valley Authority (TVA) and 
Agricultural Research Service (ARS) that cover categories of actions 
that DAF is adopting. This notice identifies the thirty-five CATEXes 
established by the above listed Federal agencies and describes the 
categories of proposed actions for which the DAF intends to use these 
CATEXes. The DAF has consulted with these agencies, as described 
herein, and obtained concurrence on DAF use of these CATEXes.

DATES: The CATEXes identified below are available for DAF use effective 
immediately.

ADDRESSES: Mr. Jack Bush, DAF NEPA Policy and Execution Oversite, 703-
695-1773, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

NEPA and CATEXes

    Congress enacted the National Environmental Policy Act, 42 U.S.C. 
4321-4347 (NEPA) to encourage productive and enjoyable harmony between 
humans and the environment, recognizing the profound impact of human 
activity and the critical importance of restoring and maintaining 
environmental quality to the overall welfare of humankind. (42 U.S.C. 
4321 and 4331). NEPA seeks to ensure that agencies consider the 
environmental effects of their proposed major actions in their 
decision-making processes and inform and involve the public in that 
process. NEPA created the Council on Environmental Quality (CEQ), which 
promulgated NEPA implementing regulations, 40 CFR parts 1500-1508 (CEQ 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review of any major Federal action--an environmental impact statement 
(EIS), environmental assessment (EA), or categorical exclusion (CATEX) 
(40 CFR 1501.3). If a proposed action is likely to have significant 
environmental effects, the agency must prepare an EIS and document its 
decision in a record of decision (40 CFR part 1502, and Sec.  1505.2). 
If the proposed action is not likely to have significant environmental 
effects or the effects are unknown, the agency may instead prepare an 
environmental assessment (EA), which involves a more concise analysis 
and process than an EIS (40 CFR 1501.5). Following the EA, the agency 
may conclude that the action will have no significant effects and 
document that conclusion in a finding of no significant impact (40 CFR 
1501.6). If the analysis concludes that the action is likely to have 
significant effects, then an EIS is required.
    Pursuant to NEPA and the CEQ regulations, a Federal agency can also 
establish CATEXes--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their agency NEPA procedures (42 U.S.C. 4336e(1); 40 
CFR 1501.4, 1507.3(c)(8)(ii), and 1508.1(e)).
    If an agency determines that a CATEX covers a proposed action, it 
then evaluates the proposed action for extraordinary circumstances in 
which a normally excluded action may have a significant effect (40 CFR 
1501.4(b)). If no extraordinary circumstances are present, the agency 
may apply the CATEX to the proposed action without preparing an EA or 
EIS (42 U.S.C. 4336(a)(2), 40 CFR 1501.4). DAF considers extraordinary 
circumstances pursuant to appendix B to 32 CFR part 989--Categorical 
Exclusions, Sec.  A2.2. Additional Analysis and will concurrently use 
the agency extraordinary circumstances for the adopted CATEXes as 
identified below.
    If an extraordinary circumstance exists, the agency nevertheless 
may apply the categorical exclusion if the agency conducts an analysis 
and determines that the proposed action does not in fact have the 
potential to result in significant effects notwithstanding the 
extraordinary circumstance or the agency modifies the action to address 
the extraordinary circumstance. In such cases, the agency shall 
document such determination and should publish it on the agency's 
website or otherwise make it publicly available (40 CFR 1501.4 (b)(1)).
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to adopt another Federal agency's 
CATEX for proposed actions (42 U.S.C. 4336c). To use another agency's 
CATEXes under section 109, the adopting agency must identify the 
relevant CATEX listed in another agency's (``establishing agency'') 
NEPA procedures that covers the adopting agency's category of proposed 
actions or related actions; consult with the establishing agency to 
ensure that the proposed adoption of the CATEX is appropriate for a 
category of actions; identify to the public the CATEX that the adopting 
agency plans to use for its proposed actions; and document adoption of 
the CATEX (42 U.S.C. 4336c).

II. DA, DON, NASA, TVA, and ARS Categorical Exclusions

    DAF is adopting fifteen CATEXes established by the DA. These 
CATEXes are listed in DA's NEPA regulations at 32 CFR part 651, 
appendix B. Each of the DA CATEXes includes conditions on the scope and 
application of the

[[Page 92912]]

CATEX within the text of the numbered paragraphs listed below.
    1. (b)(13) Actions affecting Army property that fall under another 
Federal agency's list of categorical exclusions when the other Federal 
agency is the lead agency (decision maker), or joint actions on another 
Federal agency's property that fall under that agency's list of 
categorical exclusions (Record of Environmental Consideration [REC] 
required). (Note: The DAF Environmental Planning Function must document 
application of this CATEX on AF Form 813 Request for Environmental 
Impact Analysis as the DAF does not use Army required RECs; this 
applies to each instance of REC application in the following 
discussions).
    2. (c)(1) Construction of an addition to an existing structure or 
new construction on a previously undisturbed site if the area to be 
disturbed has no more than 5.0 cumulative acres of new surface 
disturbance. This does not include construction of facilities for the 
transportation, distribution, use, storage, treatment, and disposal of 
solid waste, medical waste, and hazardous waste (REC required).
    3. (c)(2) Demolition of non-historic buildings, structures, or 
other improvements and disposal of debris therefrom, or removal of a 
part thereof for disposal, in accordance with applicable regulations, 
including those regulations applying to removal of asbestos, 
polychlorinated biphenyls (PCBs), lead-based paint, and other special 
hazard items (REC required).
    4. (c)(3) Road or trail construction and repair on existing rights-
of-ways or on previously disturbed areas.
    5. (d)(1) Land regeneration activities using only native trees and 
vegetation, including site preparation. This does not include forestry 
operations (REC required).
    6. (d)(2) Routine maintenance of streams and ditches or other 
rainwater conveyance structures (in accordance with USACE permit 
authority under section 404 of the Clean Water Act and applicable state 
and local permits), and erosion control and stormwater control 
structures (REC required).
    7. (d)(3) Implementation of hunting and fishing policies or 
regulations that are consistent with state and local regulations.
    8. (e)(2) Acquisition, installation, and operation of utility and 
communication systems, mobile antennas, data processing cable and 
similar electronic equipment that use existing right-of-way, easement, 
distribution systems, and/or facilities (REC required).
    9. (e)(4) Modification, product improvement, or configuration 
engineering design change to materiel, structure, or item that does not 
change the original impact of the materiel, structure, or item on the 
environment (REC required).
    10. (e)(7) Modification and adaptation of commercially available 
items and products for military application (for example, sportsman's 
products and wear such as holsters, shotguns, sidearms, protective 
shields, etc.), as long as modifications do not alter the normal impact 
to the environment (REC required).
    11. (f)(1) Grants or acquisitions of leases, licenses, easements, 
and permits for use of real property or facilities in which there is no 
significant change in land or facility use. Examples include, but are 
not limited to, Army controlled property and Army leases of civilian 
property to include leases of training, administrative, general use, 
special purpose, or warehouse space (REC required).
    12. (f)(2) Disposal of excess easement areas to the underlying fee 
owner (REC required).
    13. (f)(6) Disposal of real property (including facilities) by the 
Army where the reasonably foreseeable use will not change significantly 
(REC required).
    14. (g)(1) Routine repair and maintenance of buildings, airfields, 
grounds, equipment, and other facilities. Examples include but are not 
limited to: Removal and disposal of asbestos-containing material (for 
example, roof material and floor tile) or lead-based paint in 
accordance with applicable regulations; removal of dead, diseased, or 
damaged trees; and repair of roofs, doors, windows, or fixtures (REC 
required for removal and disposal of asbestos-containing material and 
lead-based paint or work on historic structures).
    15. (g)(2) Routine repairs and maintenance of roads, trails, and 
firebreaks. Examples include but are not limited to: grading and 
clearing the roadside of brush with or without the use of herbicides; 
resurfacing a road to its original conditions; pruning vegetation, 
removal of dead, diseased, or damaged trees and cleaning culverts; and 
minor soil stabilization activities.
    The DAF is adopting fifteen CATEXes established by the DON. These 
CATEXes are listed in DON NEPA regulations at 32 CFR 775.6. Each of the 
DON CATEXes includes conditions on the scope and application of the 
CATEX within the text of the numbered paragraphs listed below.
    1. (f)(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.
    2. (f)(27) Minor land acquisitions or disposals where anticipated 
or proposed land use is like existing land use and zoning, both in type 
and intensity.
    3. (f)(33) New construction that is like or compatible with 
existing land use (i.e., site and scale of construction are consistent 
with those of existing adjacent or nearby facilities) and, when 
completed, the use or operation of which complies with existing 
regulatory requirements (e.g., a building within a cantonment area with 
associated discharges and runoff within existing handling capacities). 
The test for whether this CATEX can be applied should focus on whether 
the proposed action generally fits within the designated land use of 
the proposed site.
    4. (f)(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.
    5. (f)(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.
    6. (f)(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)
    7. (f)(39) Pre-lease upland exploration activities for oil, gas, or 
geothermal reserves (e.g., geophysical surveys).
    8. (f)(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).
    9. (f)(41) Reintroduction of endemic or native species (other than 
endangered or threatened species) into their historic habitat when no 
substantial site preparation is involved.
    10. (f)(42) Temporary closure of public access to DON property to 
protect human or animal life.
    11. (f)(45) Natural resources management actions undertaken or 
permitted pursuant to agreement with or subject to regulation by 
Federal, State, or local organizations having

[[Page 92913]]

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.
    12. (f)(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.
    13. (f)(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).
    14. (f)(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.
    15. (f)(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).
    The DAF is adopting three CATEXes established by the NASA. These 
CATEXes are listed in NASA NEPA regulations at 14 CFR 1216.304. Each of 
the NASA CATEXes includes conditions on the scope and application of 
the CATEX within the text of the numbered paragraphs listed below.
    1. (d)(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, 
such as space tracking and data systems.
    2. (d)(3)(i) Research, development, and testing in compliance with 
all applicable Federal, federally recognized Indian Tribe, State, and/
or local law or requirements and Executive orders.
    3. (d)(3)(iii) Use of lasers for research and development, 
scientific instruments and measurements, and distance and ranging, 
where such use meets all applicable Federal, federally recognized 
Indian Tribe, State, and/or local law or requirements, and Executive 
orders. This applies to lasers used in spacecraft, aircraft, 
laboratories, watercraft, or outdoor activities.
    The DAF is adopting one CATEX established by the TVA. This CATEX is 
listed in TVA's NEPA regulations at 18 CFR part 1318, appendix A. The 
TVA CATEX includes conditions on the scope and application of the CATEX 
within the text of the paragraph below.
    1. (31) The following forest management activities:
    a. Actions to manipulate species composition and age class, 
including, but not limited to, harvesting or thinning of live trees and 
other timber stand improvement actions (e.g., prescribed burns, non-
commercial removal, chemical control), generally covering up to 125 
acres and requiring no more than 1 mile of temporary or seasonal 
permanent road construction.
    b. Actions to salvage dead and/or dying trees including, but not 
limited to, harvesting of trees to control insects or disease or 
address storm damage (including removal of affected trees and adjacent 
live, unaffected trees as determined necessary to control the spread of 
insects or disease), generally covering up to 250 acres and requiring 
no more than 1 mile of temporary or seasonal permanent road 
construction; and
    c. Actions to regenerate forest stands, including, but not limited 
to, planting of native tree species upon site preparation, generally 
covering up to 125 acres and requiring no more than 1 mile of temporary 
or seasonal permanent road construction.
    The DAF is adopting a CATEX established by the ARS. This CATEX is 
listed in 7 CFR 520.5. The ARS CATEX includes conditions on the scope 
and application of the CATEX within the text of the paragraph below.
    1. (b)(2) Research programs or projects of limited size and 
magnitude or with only short-term effects on the environment. Examples 
are:
    (i) Research operations conducted within any laboratory, greenhouse 
or other contained facility where research practices and safeguards 
prevent environment impacts such as the release of hazardous materials 
into the environment.
    (ii) Inventories, studies or other such activities that have 
limited context and minimal intensity in terms of changes in the 
environment.
    (iii) Testing outside of the laboratory, such as in small, isolated 
field plots, which does not involve the use of control agents requiring 
containment or a special license or a permit from a regulatory agency.

III. DAF's Use of Adopted CATEXes

    DAF expects to use the above listed CATEXes for proposed actions 
that would enhance mission capabilities and effectiveness, improve 
safety, and increase operational efficiencies. The examples listed 
below are illustrative and not an exclusive list of the proposed 
actions for which CATEXes may be available. For example, the DAF would 
construct minor additions or small construction projects where the site 
and scale of the new construction is compatible with existing land use, 
and upon completion, the use or operation of the new construction would 
comply with existing regulations consistent with DA CATEX (c)(1) or DON 
CATEX (f)(33). Also, consistent with DA CATEX (c)(2), the DAF may 
utilize this CATEX

[[Page 92914]]

for the demolition of facilities and structures, not including historic 
buildings even where asbestos, PCB's, lead-based paint, and other 
special hazard items are present. DON CATEX (f)(37) would allow DAF to 
conduct routine dredging to maintain navigational channels to their 
original permitted depths. Use of DA CATEX (d)(2) would allow the DAF 
to conduct routine maintenance of stormwater conveyance structures in 
accordance with USACE permit requirements under section 404 of the 
Clean Water Act to reduce flooding. The categories of actions described 
herein are activities for which the DAF contemplates using the CATEXes 
at this time; however, DAF may expand use of the CATEXes identified in 
section II to other activities where appropriate and would consult with 
the establishing agency, as needed. When the establishing agency CATEX 
requires written record to document application of the CATEX, the DAF 
Environmental Planning Function (EPF) shall complete a detailed Air 
Force Form 813 Request for Environmental Impact Analysis to document 
application of the CATEX. Where the CATEX mentions the owning agency, 
DAF adoption makes the CATEX available for DAF activities.

IV. Consideration of Extraordinary Circumstances

    If an agency determines that a CATEX covers a proposed action, the 
agency must evaluate the proposed action for extraordinary 
circumstances in which a normally excluded action may have a 
significant effect consistent with 40 CFR 1501.4(b). DAF has its own 
NEPA implementing procedures to guide its application of extraordinary 
circumstances. Further, DAF will apply the owning agency's 
extraordinary circumstances. If an extraordinary circumstance is 
present, determine whether there are circumstances that lessen the 
impacts or other conditions sufficient to avoid significant effects, 
consistent with 40 CFR 1501.4(b). The DAF EPF must document application 
of any mitigated CATEX on a fully developed AF Form 813. If DAF cannot 
apply a CATEX to a particular proposed action due to extraordinary 
circumstances, DAF will prepare an EA or EIS, consistent with 40 CFR 
1501.4(b)(2).

V. Consultation With Establishing Agencies and Determination of 
Appropriateness

    DAF worked with DA, DON, NASA, TVA, and ARS to identify thirty-five 
CATEXes that could apply to DAF proposed actions and began consultation 
on 20 March 2024. During the consultation, the agencies discussed 
whether the categories of DAF proposed actions would be appropriately 
covered by CATEXes from the above listed Federal agencies; the 
extraordinary circumstances that DAF should consider before applying 
these CATEXes to DAF's proposed actions; the requirement to evaluate, 
before use of the above listed Federal agencies CATEXes, the conditions 
listed as integral elements in these agencies NEPA regulations (listed 
in Section II above); and what documentation DAF should complete when 
applying these CATEXes. The agencies also considered past use of the 
CATEXes by the DA, DON, NASA, TVA, and ARS, including how often these 
agencies modified a proposed action or prepared an EA or EIS for a 
proposed action otherwise covered by the CATEXes. At the conclusion of 
that process, the agencies determined that DAF's proposed use of the 
CATEXes as described in this notice would be appropriate.

VI. Conclusion

    This notice documents adoption of the thirty-five CATEXes listed 
above in accordance with 42 U.S.C. 4336c (4)), and they are available 
for use by DAF, effective immediately.

Tommy W. Lee,
Acting Air Force Federal Register Liaison Officer.
[FR Doc. 2024-27545 Filed 11-22-24; 8:45 am]
BILLING CODE 3911-44-P