[Federal Register: February 23, 2004 (Volume 69, Number 35)]
[Rules and Regulations]
[Page 8108-8112]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe04-8]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 775
RIN 0703-AA51
Policies and Responsibilities for Implementation of the National
Environmental Policy Act Within the Department of the Navy
AGENCY: Department of the Navy, DOD.
ACTION: Final rule.
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SUMMARY: The Department of the Navy (DON) is revising portions of its
internal regulations that establish the responsibilities and procedures
within the DON for complying with the National Environmental Policy Act
(NEPA). This revision clarifies when certain DON actions must be
studied to determine their effect on the human environment and what
types of activities are excluded from the NEPA analysis and
documentation requirements.
DATES: Effective February 23, 2004.
ADDRESSES: Interested parties should request copies of the rule from:
Mr. Thomas Egeland, Office of the Assistant Secretary of the Navy
(Installations and Environment), 1000 Navy Pentagon, Washington, DC
20350-1000.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Egeland, Office of the
Assistant Secretary of the Navy (Installations and Environment), 703-
614-5913.
SUPPLEMENTARY INFORMATION: The National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321 et seq.) establishes national policy and
goals for protection of the environment. Section 102(2) of NEPA
contains certain procedural requirements directed toward the attainment
of such goals. In particular, all Federal agencies are required to give
appropriate consideration to the environmental effects of their
proposed actions in their decision making and to prepare detailed
environmental statements on recommendations or reports significantly
affecting the quality of the human environment.
Executive Order 11991 of May 24, 1977, directed the Council on
Environmental Quality (CEQ) to issue regulations to implement
procedural provisions of NEPA. Accordingly, CEQ issued final NEPA
regulations (40 CFR parts 1500-1508) on November 29, 1978, which are
binding on all Federal agencies as of July 30, 1979. These regulations
require each Federal agency, as necessary, to adopt implementing
procedures to supplement the CEQ regulations. Section 1507.3(b) of the
CEQ regulations identifies those sections of the regulations that must
be addressed in agency procedures.
The final rule revises DON's implementing regulations that were
originally published in 55 FR 33898 on August 20, 1990. Significant
changes that these amendments bring about include: Revision of and
additions to the DON list of approved categories of actions excluded
from further analysis and documentation under NEPA; revised criteria
for disallowing the application of listed categorical exclusions; and
assignment of responsibilities to the Assistant Secretary of the Navy
(Research, Development and Acquisition), the General Counsel of the
Navy, and the Judge Advocate General of the Navy.
The DON published the proposed rule in 64 FR 37069 on July 9, 1999,
and granted a 60-day comment period. DON received comments from one
Federal agency, one state agency, one local government agency, and one
private party. DON coordinated the proposed rule with Council on
Environmental Quality (CEQ). DON carefully considered the comments
received. Most comments focused on two general areas: The discussion of
policies and responsibilities and the revision of DON categorical
exclusions. In response to comments on policies and responsibilities:
The rule was modified to more clearly reflect the relationship among
internal DON regulations and between the rule and internal Department
of Defense directives; the phrase ``environmental analysis'' was
substituted for the term ``NEPA document'' where appropriate; and
definitions and other discussions perceived as inconsistent with the
regulations promulgated by CEQ were deleted.
The discussion of categorical exclusions was also modified in
response to comments. Based upon a recommendation from CEQ that routine
documentation of categorical exclusions was not necessary, the two-
group approach to categorical exclusions contained in the draft rule
was eliminated. As a result, the categorical exclusions were placed in
a single group and renumbered. The consolidation into a single grouping
also reemphasized that, even though a proposed action generally is
covered by a listed categorical exclusion, a categorical exclusion will
not be used if the proposed action categorical exclusion involved any
one of several enumerated conditions.
Several categorical exclusions were modified to reflect that they
were
[[Page 8109]]
intended to apply to routine actions of the nature described in the
particular exclusion. Categorical exclusion XXVII, addressing natural
resource management actions covered by an Environmental Assessment (EA)
or Environmental Impact Statement (EIS) on the underlying management
plan, was eliminated as unnecessary. Categorical exclusion XXXII,
addressing actions similar in type, intensity, and setting to other
actions for which it had been determined in an EA or EIS that there
were no significant impacts, was revised and is now presented as two
separate and more specific categorical exclusions. The first of these
two exclusions applies to routine testing and evaluation of military
equipment on existing military reservations, ranges, and operating
areas. This exclusion is intended to encompass routine categories of
tests conducted in areas designated for or historically used for
military operations, training, and testing. Examples of this
categorical exclusion are captive-carry tests, weapons stores
separation tests, and minor component survivability tests. The second
of these two exclusions applies to routine military unit level training
or minor training exercises conducted by two or more units. As with all
DON categorical exclusions, these two exclusions cannot be used if they
involve any of the enumerated conditions set out in Section 775.6(e).
The Department of the Navy has determined that this regulation is
not a significant rule as defined by Executive Order 12866 and is not
subject to the relevant provisions of the Regulatory Flexibility Act of
1980 (5 U.S.C. 605(b)).
List of Subjects in 32 CFR Part 775
Environmental impact statements.
0
Accordingly, Part 775 of Chapter VI of title 32 of the Code of Federal
Regulations is amended as follows:
PART 775--POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE
NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY
0
1. The authority for Part 775 continues to read as follows:
Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR Parts 1500-
1508.
0
2. Section 775.1 is revised to read as follows:
Sec. 775.1 Purpose and scope.
(a) To implement the provisions of the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321 et seq., the Council on Environmental
Quality Regulations for Implementing the Procedural Provisions of NEPA,
40 CFR 1500-1508, and the Department of Defense Instruction on
Environmental Planning and Analysis, DODINST 4715.9, and to assign
responsibilities within the Department of the Navy (DON) for
preparation, review, and approval of environmental documents prepared
under NEPA.
(b) The policies and responsibilities set out in this part apply to
the DON, including the Office of the Secretary of the Navy, and Navy
and Marine Corps commands, operating forces, shore establishments, and
reserve components. This part is limited to the actions of these
elements with environmental effects in the United States, its
territories, and possessions.
0
3. Section 775.2 is revised to read as follows:
Sec. 775.2 Definitions.
(a) Action proponent. The commander, commanding officer, or
civilian director of a unit, activity, or organization who initiates a
proposal for action, as defined in 40 CFR 1508.23, and who has command
and control authority over the action once it is authorized. For some
actions, the action proponent will also serve as the decision-making
authority for that action. In specific circumstances, the action
proponent and decision maker may be identified in Navy Regulations,
other SECNAV Instructions, operational instructions and orders,
acquisition instructions, and other sources which set out authority and
responsibility within the DON.
(b) Environmental Impact Statement (EIS). An environmental document
prepared according to the requirements of Council on Environmental
Quality (CEQ) regulations (40 CFR parts 1500-1508) for a major action
that will have a significant effect on the quality of the human
environment.
(c) Environmental Assessment (EA). A concise document prepared
according to the requirements of 40 CFR parts 1500-1508 that briefly
provides sufficient evidence and analysis for determining whether to
prepare an EIS. An EA aids compliance with NEPA when no EIS is
necessary and facilitates preparation of an EIS when one is necessary.
(d) Categorical Exclusion (CATEX). A published category of actions
that do not individually or cumulatively have a significant impact on
the human environment under normal circumstances, and, therefore, do
not require either an environmental assessment or an environmental
impact statement.
(e) Record of Decision (ROD). An environmental document signed by
an appropriate official of the DON. A ROD sets out a concise summary of
the final decision and selected measures for mitigation (if any) of
adverse environmental impacts of the alternative chosen from those
considered in an EIS.
(f) Finding of No Significant Impact (FONSI). A document that sets
out the reasons why an action not otherwise categorically excluded will
not have a significant impact on the human environment, and for which
an EIS will not therefore be prepared. A FONSI will include the EA or a
summary of it and shall note any other environmental documents related
to it. A FONSI may be one result of review of an EA.
0
4. Section 775.3 is revised to read as follows:
Sec. 775.3 Policy.
(a) It is the DON policy regarding NEPA, consistent with its
mission and regulations and the environmental laws and regulations of
the United States, to:
(1) Initiate the NEPA processes at the earliest possible time to be
an effective decision making tool in the course of identifying a
proposed action.
(2) Develop and carefully consider a reasonable range of
alternatives for achieving the purpose(s) of proposed actions.
(3) Assign responsibility for preparation of action specific
environmental analysis under NEPA to the action proponent. The action
proponent should understand the plans, analyses, and environmental
documents related to that action.
(b) NEPA is intended to ensure that environmental issues are fully
considered and incorporated into the Federal decision making process.
Consequently, actions for which the DON has no decision-making
authority and no discretion in implementing the action, such as those
carried out under a non discretionary mandate from Congress (e.g.,
congressional direction to transfer Federal property to a particular
entity for a particular purpose that leaves DON no discretion in how
the transfer will be implemented) or as an operation of law (e.g.,
reversionary interests in land recorded at the time the property was
obtained and that provide no discretion in whether to trigger the
reversion or how the reversion will be implemented), require no
analysis or documentation under NEPA or its implementing regulations.
0
5. Section 775.4 is revised to read as follows:
[[Page 8110]]
Sec. 775.4 Responsibilities.
(a) The Assistant Secretary of the Navy (Installations and
Environment) (ASN (I&E)) shall:
(1) Act as principal liaison with the Office of the Secretary of
Defense, the Council on Environmental Quality, the Environmental
Protection Agency, other Federal agencies, Congress, state governments,
and the public with respect to significant NEPA matters.
(2) Direct the preparation of appropriate environmental analysis
and documentation and, with respect to those matters governed by SECNAV
Instruction 5000.2 series, advise the Assistant Secretary of the Navy
(Research Development and Acquisition) (ASN (RD&A)) concerning
environmental issues and the appropriate level of environmental
analysis and NEPA documentation needed in any particular circumstance.
(3) Except for proposed acquisition-related actions addressed in
paragraph (b)(2) of this section, review, sign, and approve for
publication, as appropriate, documents prepared under NEPA.
(4) Establish and publish a list of categorical exclusions for the
DON.
(b) The Assistant Secretary of the Navy (Research, Development and
Acquisition (ASN (RD&A)) shall, in accordance with SECNAV Instruction
5000.2 series:
(1) Ensure that DON acquisition programs, research programs, and
procurements comply with NEPA.
(2) Review, sign, and approve for publication, as appropriate,
environmental documents prepared under NEPA for proposed acquisition or
research and development related actions.
(c) The General Counsel of the Navy and the Judge Advocate General
of the Navy shall:
(1) Ensure that legal advice for compliance with environmental
planning requirements is available to all decision-makers.
(2) Advise the Secretary of the Navy, the Chief of Naval
Operations, and the Commandant of the Marine Corps as to the legal
requirements that must be met, and the conduct and disposition of all
legal matters arising in the context of environmental planning.
(d) The Chief of Naval Operations (CNO) and the Commandant of the
Marine Corps (CMC) shall:
(1) Implement effective environmental planning throughout their
respective services.
(2) Prepare and issue instructions or orders to implement
environmental planning policies of the DON. Forward proposed CNO/CMC
environmental planning instructions or orders to ASN (I&E) and, when
appropriate, ASN (RD&A) for review and comment prior to issuance.
(3) Make decisions on environmental assessments as to whether a
Finding of No Significant Impact is appropriate or preparation of an
environmental impact statement is required.
(4) Ensure that subordinate commands establish procedures for
implementing mitigation measures described in NEPA documents.
(5) Provide coordination as required for the preparation of NEPA
documents for actions initiated by non-DON/DOD entities, state or local
agencies and/or private individuals for which service involvement may
be reasonably foreseen.
(6) Bring environmental planning matters that involve controversial
issues or which may affect environmental planning policies or their
implementation to the attention of ASN (I&E) and, where appropriate,
ASN (RD&A) for coordination and determination.
(7) Notify ASN (I&E), and when appropriate, ASN (RD&A) of any
proposed EIS, and of any EA that may involve potentially sensitive
public interest issues. EIS notification shall occur prior to
commencing NEPA document preparation or receiving any public or
regulatory agency involvement. EA notification shall be made as soon as
it becomes apparent that potentially sensitive public issues are
involved.
0
6. Section 775.6 is amended by revising paragraphs (a), (b), (e) and
(f) to read as follows:
Sec. 775.6 Planning considerations.
(a) An EIS must be prepared for proposed major Federal actions that
will have significant impacts on the human environment. The agency
decision in the case of an EIS is reflected in a ROD.
(b) Where a proposed major Federal action has the potential for
significantly affecting the human environment, but it is not clear
whether the impacts of that particular action will in fact be
significant, or where the nature of an action precludes use of a
categorical exclusion, an EA may be used to assist the agency in
determining whether to prepare an EIS. If the agency determination in
the case of an EA is that there is no significant impact on the
environment, the findings will be reflected in a FONSI. If the EA
determines that the proposed action is likely to significantly affect
the environment (even after mitigation), then an EIS will be prepared.
An EA also may be used where it otherwise will aid compliance with
NEPA.
* * * * *
(e) A categorical exclusion (CATEX), as defined and listed in this
regulation, may be used to exclude a proposed action from further
analysis. Even though a proposed action generally is covered by a
listed categorical exclusion, a categorical exclusion will not be used
if the proposed action:
(1) Would adversely affect public health or safety;
(2) Involves effects on the human environment that are highly
uncertain, involve unique or unknown risks, or which are scientifically
controversial;
(3) Establishes precedents or makes decisions in principle for
future actions that have the potential for significant impacts;
(4) Threatens a violation of Federal, state, or local environmental
laws applicable to the Department of the Navy; or
(5) Involves an action that, as determined in coordination with the
appropriate resource agency, may:
(i) Have an adverse effect on Federally listed endangered/
threatened species or marine mammals;
(ii) Have an adverse effect on coral reefs or on Federally
designated wilderness areas, wildlife refuges, marine sanctuaries, or
parklands;
(iii) Adversely affect the size, function or biological value of
wetlands and is not covered by a nation-wide or regional permit;
(iv) Have an adverse effect on archaeological resources or
resources (including but not limited to ships, aircraft, vessels and
equipment) listed or determined eligible for listing on the National
Register of Historic Places; or
(v) Result in an uncontrolled or unpermitted release of hazardous
substances or require a conformity determination under standards of the
Clean Air Act General Conformity Rule.
(f) Categorical exclusions. Subject to the criteria in paragraph
(e) above, the following categories of actions are excluded from
further analysis under NEPA. The CNO and CMC shall determine whether a
decision to forego preparation of an EA or EIS on the basis of one or
more categorical exclusions must be documented in an administrative
record and the format for such record.
(1) Routine fiscal and administrative activities, including
administration of contracts;
(2) Routine law and order activities performed by military
personnel, military police, or other security personnel, including
physical plant protection and security;
[[Page 8111]]
(3) Routine use and operation of existing facilities, laboratories,
and equipment;
(4) Administrative studies, surveys, and data collection;
(5) Issuance or modification of administrative procedures,
regulations, directives, manuals, or policy;
(6) Military ceremonies;
(7) Routine procurement of goods and services conducted in
accordance with applicable procurement regulations, executive orders,
and policies;
(8) Routine repair and maintenance of buildings, facilities,
vessels, aircraft, and equipment associated with existing operations
and activities (e.g., localized pest management activities, minor
erosion control measures, painting, refitting);
(9) Training of an administrative or classroom nature;
(10) Routine personnel actions;
(11) Routine movement of mobile assets (such as ships and aircraft)
for homeport reassignments, for repair/overhaul, or to train/perform as
operational groups where no new support facilities are required;
(12) Routine procurement, management, storage, handling,
installation, and disposal of commercial items, where the items are
used and handled in accordance with applicable regulations (e.g.,
consumables, electronic components, computer equipment, pumps);
(13) Routine recreational/welfare activities;
(14) Alteration of and additions to existing buildings, facilities,
structures, vessels, aircraft, and equipment to conform or provide
conforming use specifically required by new or existing applicable
legislation or regulations (e.g., hush houses for aircraft engines,
scrubbers for air emissions, improvements to storm water and sanitary
and industrial wastewater collection and treatment systems, and
installation of fire fighting equipment);
(15) The modification of existing systems or equipment when the
environmental effects will remain substantially the same and the use is
consistent with applicable regulations;
(16) Routine movement, handling and distribution of materials,
including hazardous materials/wastes that are moved, handled, or
distributed in accordance with applicable regulations;
(17) New activities conducted at established laboratories and
plants (including contractor-operated laboratories and plants) where
all airborne emissions, waterborne effluent, external ionizing and non-
ionizing radiation levels, outdoor noise, and solid and bulk waste
disposal practices are in compliance with existing applicable Federal,
state, and local laws and regulations;
(18) Studies, data, and information gathering that involve no
permanent physical change to the environment (e.g., topographic
surveys, wetlands mapping, surveys for evaluating environmental damage,
and engineering efforts to support environmental analyses);
(19) Temporary placement and use of simulated target fields (e.g.,
inert mines, simulated mines, or passive hydrophones) in fresh,
estuarine, and marine waters for the purpose of non-explosive military
training exercises or research, development, test and evaluation;
(20) Installation and operation of passive scientific measurement
devices (e.g., antennae, tide gauges, weighted hydrophones, salinity
measurement devices, and water quality measurement devices) where use
will not result in changes in operations tempo and is consistent with
applicable regulations;
(21) Short-term increases in air operations up to 50 percent of the
typical operation rate, or increases of 50 operations per day,
whichever is greater. Frequent use of this CATEX at an installation
requires further analysis to determine there are no cumulative impacts;
(22) Decommissioning, disposal, or transfer of Navy vessels,
aircraft, vehicles, and equipment when conducted in accordance with
applicable regulations, including those regulations applying to removal
of hazardous materials;
(23) Non-routine repair and renovation, and donation or other
transfer of structures, vessels, aircraft, vehicles, landscapes or
other contributing elements of facilities listed or eligible for
listing on the National Register of Historic Places which will result
in no adverse effect;
(24) Hosting or participating in public events (e.g., air shows,
open houses, Earth Day events, and athletic events) where no permanent
changes to existing infrastructure (e.g., road systems, parking and
sanitation systems) are required to accommodate all aspects of the
event;
(25) Military training conducted on or over nonmilitary land or
water areas, where such training is consistent with the type and tempo
of existing non-military airspace, land, and water use (e.g., night
compass training, forced marches along trails, roads and highways, use
of permanently established ranges, use of public waterways, or use of
civilian airfields);
(26) Transfer of real property from DON to another military
department or to another Federal agency;
(27) Receipt of property from another Federal agency when there is
no anticipated or proposed substantial change in land use;
(28) Minor land acquisitions or disposals where anticipated or
proposed land use is similar to existing land use and zoning, both in
type and intensity;
(29) Disposal of excess easement interests to the underlying fee
owner;
(30) Renewals and minor amendments of existing real estate grants
for use of Government-owned real property where no significant change
in land use is anticipated;
(31) Land withdrawal continuances or extensions that merely
establish time periods and where there is no significant change in land
use;
(32) Renewals and/or initial real estate in grants and out grants
involving existing facilities and land wherein use does not change
significantly (e.g., leasing of federally-owned or privately-owned
housing or office space, and agricultural out leases);
(33) Grants of license, easement, or similar arrangements for the
use of existing rights-of-way or incidental easements complementing the
use of existing rights-of-way for use by vehicles (not to include
significant increases in vehicle loading); electrical, telephone, and
other transmission and communication lines; water, wastewater, storm
water, and irrigation pipelines, pumping stations, and facilities; and
for similar utility and transportation uses;
(34) New construction that is similar to existing land use 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/runoff within existing handling capacities);
(35) 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;
(36) Acquisition, installation, and operation of utility (e.g.,
water, sewer, electrical) and communication systems (e.g., data
processing cable and similar electronic equipment) which use existing
rights of way, easements, distribution systems, and/or facilities;
(37) Decisions to close facilities, decommission equipment, and/or
temporarily discontinue use of facilities or equipment, where the
facility or
[[Page 8112]]
equipment is not used to prevent/control environmental impacts);
(38) Maintenance dredging and debris disposal where no new depths
are required, applicable permits are secured, and disposal will be at
an approved disposal site;
(39) 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);
(40) Pre-lease upland exploration activities for oil, gas or
geothermal reserves, (e.g., geophysical surveys);
(41) 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);
(42) Reintroduction of endemic or native species (other than
endangered or threatened species) into their historic habitat when no
substantial site preparation is involved;
(43) Temporary closure of public access to DON property in order to
protect human or animal life;
(44) Routine testing and evaluation of military equipment on a
military reservation or an established range, restricted area, or
operating area; similar in type, intensity and setting, including
physical location and time of year, to other actions for which it has
been determined, through NEPA analysis where the DON was a lead or
cooperating agency, that there are no significant impacts; and
conducted in accordance with all applicable standard operating
procedures protective of the environment;
(45) Routine military training associated with transits,
maneuvering, safety and engineering drills, replenishments, flight
operations, and weapons systems conducted at the unit or minor exercise
level; similar in type, intensity and setting, including physical
location and time of year, to other actions for which it has been
determined, through NEPA analysis where the DON was a lead or
cooperating agency, that there are no significant impacts; and
conducted in accordance with all applicable standard operating
procedures protective of the environment.
0
7. Section 775.12 is revised to read as follows:
Sec. 775.12 Delegation of authority.
(a) The ASN (I&E) may delegate his/her responsibilities under this
instruction for review, approval and/or signature of EISs and RODs to
appropriate Executive Schedule/Senior Executive Service civilians or
flag/general officers. ASN (I&E), CNO, and CMC may delegate all other
responsibilities assigned in this instruction as deemed appropriate.
(b) The ASN (RD&A) delegation of authority for approval and
signature of documents under NEPA is contained in SECNAV Instruction
5000.2 series, which sets out policies and procedures for acquisition
programs.
(c) Previously authorized delegations of authority are continued
until revised or withdrawn.
Dated: February 13, 2004.
S.A. Hughes,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 04-3590 Filed 2-20-04; 8:45 am]