[Federal Register Volume 59, Number 145 (Friday, July 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18553]


[[Page Unknown]]

[Federal Register: July 29, 1994]


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DEPARTMENT OF TRANSPORTATION

Coast Guard
[CGD 93-090]

 

National Environmental Policy Act: Agency Procedures for 
Categorical Exclusions

AGENCY: Coast Guard, DOT.

ACTION: Notice of final agency procedures and policy for categorical 
exclusions.

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SUMMARY: The Coast Guard is revising its procedures and policies 
concerning agency actions which do not individually or cumulatively 
have a significant effect on the human environment. Under the National 
Environmental Policy Act, these actions are categorically excluded from 
the requirement that the proposed action undergo the additional 
analysis that accompanies preparation of an Environmental Assessment or 
an Environmental Impact Statement. This revision eliminates overly 
expansive and inconsistent interpretations of existing policies and 
procedures, aligns them with Categorical Exclusions of other agencies, 
reduces paperwork and delays, and produces better decision processes.

FOR FURTHER INFORMATION CONTACT:
Ms. Bonnie Gallahan, Environmental Compliance and Restoration Branch 
(G-ECV-1B), (202) 267-6034).

SUPPLEMENTARY INFORMATION:

Background and Purpose

    Under regulations implementing the National Environmental Policy 
Act (NEPA) (40 CFR parts 1500 through 1508), each Federal agency is 
required to adopt procedures to supplement those regulations (40 CFR 
1507.3). The Coast Guard's procedures and policies are published as a 
Commandant instruction entitled ``National Environmental Policy Act 
Implementing Procedures and Policy for Considering Environmental 
Impacts'' (COMDTINST M16475.1 series). In this notice, the Coast Guard 
is announcing the revision of section 2.B.2. of the instruction 
concerning Categorical Exclusions (CE). CEs are those categories of 
actions which may be taken by the Coast Guard without the analysis and 
documentation required for an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS).
    This is a complete revision of the instructions on CEs. It 
identifies the categories subject to exclusion with greater precision 
(paragraph 2.B.2.e), it provides criteria for screening an action which 
falls under an excluded category but which might otherwise warrant 
additional environmental review (paragraph 2.B.2.b), and it adds 
procedures for identifying new categories for future CEs (paragraph 
2.B.2.a).

Discussion of Comments and Changes

    The revision was published as a proposal for public review and 
comment under 40 CFR 1507.3, after consultation with the Council on 
Environmental Quality (CEQ), in 59 FR 3152 through 3155 (January 20, 
1994). Comments were received from two private individuals, an industry 
group, a State agency and a Federal agency.
    The comments focused on documentation requirements (preparation of 
an environmental analysis checklists or Categorical Exclusion 
Determination (CED)). The suggestions fell into two groups, some 
suggested the elimination of all documentation requirements and others 
requested requiring checklists and CEDs for all CEs. In keeping with 
the spirit and intent of NEPA, the CEQ regulations, and Executive 
Orders 11514 and 11991, this revision is intended ``to reduce paperwork 
and the accumulation of extraneous background data.'' Consequently, the 
requirement to complete and submit environmental checklists has been 
minimized. Future revisions will address the possibility of further 
reducing the number of CEs requiring checklists. The section on 
documentation (section 2.B.2.c.) has also been revised to clarify the 
situations when a Categorical Exclusion Determination (CED) is 
required. The CED requirement for regulations is consistent with the 
COMDTINST provision (section 2.A.3.) that requires documentation for 
Coast Guard regulatory actions.
    Several comments received focused on either expanding or limiting 
the situations in which use of a CE would be appropriate. Many such 
comments were considered unnecessary because the list of CEs (section 
2.B.2.e.) can only be applied in conjunction with the limitations 
(section 2.B.2.b.). For example, complying with current Federal, State, 
or local laws or requirements is specified in the limitations section 
and not repeated in every CE. In the same way, cumulative and 
incremental impacts or effects must be considered when determining 
whether the limitation in subsection 2.B.2.b.(6) precludes application 
of a CE to a specific action.
    The section describing compliance with other laws (section 
2.B.2.d.) has, in consideration of comments received from the 
Department of the Interior, been expanded to include requirements set 
forth in agreements. Therefore, Coast Guard personnel are responsible 
for ensuring compliance with any Memorandum of Agreement (MOA) or 
Memorandum of Understanding (MOU) with other agencies or entities.
    Additional revisions to specific CEs are as follows:
    CE (1): ``Training'' was eliminated from the types of actions 
listed here because it created the possibility of confusion and 
ambiguity due to its redundant nature with CEs (18) through (21) which 
specifically cover training activities.
    CE (12): The checklist requirement was kept for vessels and 
aircraft to insure major disposal actions receive additional attention. 
This is one example of a category requiring an environmental analysis 
checklist that will be addressed in future revisions.
    CE (13): This was clarified to address situations where the 
National Historic Preservation Act (NHPA) section 106 process 
determines there is no effect. This CE may still be used if there is a 
consensus that no impact will occur. Furthermore, the limitation set 
out in 2.B.2.b.(7) reinforces the requirement to comply with the NHPA.
    CE (18): Comments questioned the proposed revision's clarity in 
requiring NEPA compliance by lead agencies. This final revision makes 
it clear that the lead agency must meet its NEPA requirements prior to 
Coast Guard participation in defense preparedness training and 
exercises.
    CE (23): The words ``and the Aids to Navigation Program'' were 
added to address concerns that the original proposal would not 
encompass the placing of aids to navigation by private parties under 
the Coast Guard Aids to Navigation Program. As revised, this CE 
includes and treats privately placed aids in the same manner as aids 
placed by the Coast Guard.
    CE (32): Comments received regarding the provision for the Bridges 
Program expressed concern regarding the lack of reference to carrying 
capacity and the exclusion of ``bridges with historic significance or 
bridges providing access to undeveloped barrier islands and beaches.'' 
The exclusion was explicitly stated to focus attention on two issues 
that arise on a recurring basis. The sections describing limitations on 
the use of CEs require the parties responsible for environmental 
analysis and documentation to consider, pursuant to section 
2.B.2.b.(2), the unique characteristics of the geographic area, such as 
proximity to historic or cultural resources, wetlands, and ecologically 
critical areas. Section 2.B.2.b(7) requires consideration of the 
effects on structures that are listed in, or eligible for listing in, 
the National Register of Historic Places or that may cause loss or 
destruction of significant cultural or historical resources. Use of the 
limitations section also addresses the concern over incremental changes 
that involve carrying capacity. Specifically, the limitation on 
``individually insignificant, but cumulatively significant, impact'' 
(2.B.2.b.(6)), in conjunction with the requirements that all NEPA 
analyses consider connected, cumulative, and similar actions (50 CFR 
1508.25) and direct, indirect, and cumulative effects (50 CFR 1508.7 
and 1508.8) ensure that carrying capacity will be considered.
    CE (34): The Advanced Notice of Proposed Rule Making and Interim 
Rule are added to the list of regulatory actions requiring completion 
of an Environmental Analysis Checklist and preparation of a CED, 
because completion of the CE process applies to all regulatory actions. 
New subsections (a) through (e) were included in proposed subsection 
(a), the general description of editorial, procedural, or 
administrative regulations. The new subsections more clearly delineate 
and describe the types of regulations that qualify for CEs. New 
subsections (f) and (g) are revisions of subsections (b) and (c). The 
requirement to prepare a checklist unless the size of the Area, ground, 
or zone is being increased has been eliminated. Furthermore, subsection 
(g) has been revised to explicitly refer to Regulated Navigation Areas 
(RNAs) which are promulgated under 33 CFR part 165. In addition, no 
documentation is required for temporary areas or zones that are of 
limited duration and that were established to deal with emergency 
situations. New subsection (i), a revision of proposed subsection (e), 
uses the term ``rules of the road'' to include Shipping Safety Fairways 
promulgated under 33 CFR part 166 and International Regulations for the 
Prevention of Collisions at Sea (COLREGS) established under the 
auspices of the International Maritime Organization.
    CE (35): Several comments concerned the regatta and marine parade 
permit provisions. The comments suggested changes ranging from greatly 
expanding the actions qualifying for the CE to drastically contracting 
the actions. The provision, as proposed, reflected the need to strike a 
balance in favor of a CE that recognizes current experience and 
provides flexibility to field units and commanders issuing the permits. 
It allows field units and commanders to assess the impacts based upon 
site-specific circumstances, such as the characteristics of the body of 
water, the proximity to environmentally sensitive areas, and the actual 
numbers of participants and spectators involved. The CEs, when read and 
applied in conjunction with the limitations section, the statute, the 
CEQ regulations, provide reasonable parameters. Therefore, the 
provision as drafted is unchanged.
    For the reasons set out in the preamble, the Coast Guard amends 
section 2.B.2. of COMDTINST M16475.1B as follows:
    2.B. Environmental Documentation.
* * * * *
    2. Categorical Exclusions (CE).

a. Introduction

    As defined by the Council on Environmental Quality (CEQ), a 
``categorical exclusion'' or ``CE'' means a category of actions which 
do not individually or cumulatively have a significant effect on the 
human environment and for which, therefore, neither an Environmental 
Assessment (EA) nor an Environmental Impact Statement (EIS) is 
required. The use of a CE is intended to reduce paperwork and delay by 
eliminating the unnecessary preparation of EAs and EISs. The CEs listed 
below are subject to review and any suggested modifications should be 
provided to COMDT (G-ECV). Additional CEs should be suggested when it 
becomes clear, through the preparation of EAs, that Findings of No 
Significant Impact (FONSI) result after numerous analyses of similar 
types of actions.

b. Limitations on Using Categorical Exclusions

    Some actions that normally would be categorically excluded under 
section 2.B.2.e. could require additional environmental review and, for 
this reason, responsible personnel should be alert for circumstances 
that dictate the need to prepare an EA or EIS.
    A determination of whether an action that is normally excluded 
requires additional review must focus on the action's significance. The 
proposed action must be evaluated in its context (whether local, State, 
regional, tribal, national, or international) and in its intensity by 
considering whether the action is likely to involve one or more of the 
following:
    (1) An adverse effect on public health or safety.
    (2) A site that includes or is near a unique characteristic of the 
geographic area, such as a historic or cultural resource, park land, 
prime farmland, wetland, wild and scenic river, ecologically critical 
area, or property requiring special consideration under 49 U.S.C. 
303(c). [Section 303(c) of Title 49 U.S.C. is commonly referred to as 
section 4(f) of the Department of Transportation (DOT) Act which 
includes any land from a public park, recreation area, wildlife and 
waterfowl refuge, or historic site].
    (3) An effect on the quality of the human environment that is 
likely to be highly controversial, in terms of scientific validity or 
public opinion.
    (4) An effect on the human environment that is highly uncertain or 
involves unique or unknown risks.
    (5) A precedent for future actions with significant effects or a 
decision in principle about a future consideration.
    (6) An individually insignificant, but cumulatively significant, 
impact when considered along with other past, present, and reasonably 
foreseeable future actions.
    (7) An adverse effect on a district, site, highway, structure, or 
object that is listed in or eligible for listing in the National 
Register of Historic Places, or the loss or destruction of a 
significant scientific, cultural, or historical resource.
    (8) An adverse effect on species or habitats protected by the 
Endangered Species Act.
    (9) A potential or threatened violation of a Federal, State, or 
local law or requirement imposed for the protection of the environment.
    (10) An impact that may be both beneficial and adverse. A 
significant impact may exist even if it is believed that, on balance, 
the effect will be beneficial.
    In addition, a CE may not be used if the proposed action is likely 
to involve any of the circumstances set forth in section 20.b.(2) of 
DOT Order 5610.1 series (Enclosure 1). The ten listed circumstances and 
those in the DOT Order are addressed in the Environmental Analysis 
Checklist (Enclosure 10).
    If a CE is not appropriate, an EA or an EIS must be prepared.

c. Documentation

    When the specific CE requires that a checklist be completed, an 
environmental analysis checklist (Enclosure 10) will be completed and 
used to substantiate the use of the CE. The checklist must be submitted 
with, and accompany, the proposal for the action. If a CE is not 
appropriate, the environmental analysis checklist will be used for 
developing an EA or EIS.
    A written Categorical Exclusion Determination (CED) (Enclosure 6) 
must be prepared when a CE is being relied upon to promulgate a 
regulation that requires an environmental checklist.
    Checklists and CEDs supplementary to the requirements of this 
Instruction may be developed by subordinate commands for specific types 
of actions. Those documents must be approved by G-ECV before they are 
adopted for use.

d. Compliance With Other Laws and Requirements

    Even though an EA or EIS may not be indicated for a Federal action 
because of a CE, that fact does not exempt the action from compliance 
with any other Federal law or any review or consultation requirements 
contained in any applicable agreement. For example, compliance with the 
Endangered Species Act, the Fish and Wildlife Coordination Act, the 
National Historic Preservation Act, the Clean Water Act, the Clean Air 
Act (conformity requirements), etc. is always mandatory, even for 
actions that do not require an EA or EIS.

e. Categorical Exclusion List

    The following are actions that, unless consideration of the factors 
in section 2.B.2.b. trigger the need to conduct further analysis, are 
categorically excluded from further analysis and documentation 
requirements under NEPA. (Note: Unless otherwise indicated, completion 
of an environmental checklist (Enclosure 10) and preparation of a CED 
(Enclosure 6) is not required):
    (1) Routine personnel, fiscal, and administrative activities, 
actions, procedures, and policies which clearly do not have any 
environmental impacts, such as military and civilian personnel 
recruiting, processing, paying, and recordkeeping.
    (2) Routine procurement activities and actions for goods and 
services, including office supplies, equipment, mobile assets, and 
utility services for routine administration, operation, and 
maintenance.
    (3) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at 
an existing approved disposal site. (Checklist required).
    (4) Routine repair, renovation, and maintenance actions on aircraft 
and vessels.
    (5) Routine repair and maintenance of buildings, roads, airfields, 
grounds, equipment, and other facilities which do not result in a 
change in functional use, or an impact on a historically significant 
element or setting.
    (6) Minor renovations and additions to buildings, roads, airfields, 
grounds, equipment, and other facilities which do not result in a 
change in functional use, a historically significant element, or 
historically significant setting. (Checklist required).
    (7) Routine repair and maintenance to waterfront facilities, 
including mooring piles, fixed floating piers, existing piers, and 
unburied power cables.
    (8) Minor renovations and additions to waterfront facilities, 
including mooring piles, fixed floating piers, existing piers, and 
unburied power cables, which do not require special, site-specific 
regulatory permits. (Checklist required).
    (9) Routine grounds maintenance and activities at units and 
facilities. Examples include localized pest management actions and 
actions to maintain improved grounds (such as landscaping, lawn care 
and minor erosion control measures) that are conducted in accordance 
with applicable Federal, State and local directives.
    (10) Installation of devices to protect human or animal life, such 
as raptor electrocution prevention devices, fencing to restrict 
wildlife movement on to airfields, and fencing and grating to prevent 
accidental entry to hazardous areas. (Checklist required).
    (11) New construction on heavily developed portions of Coast Guard 
property, when construction, use, and operation will comply with 
regulatory requirements and constraints. (Checklist required).
    (12) Decisions to decommission equipment or temporarily discontinue 
use of facilities or equipment. This does not preclude the need to 
review decommissioning under section 106 of the National Historic 
Preservation Act. (Checklist required for vessels and aircraft).
    (13) Demolition or disposal actions that involve buildings or 
structures when conducted in accordance with regulations applying to 
removal of asbestos, PCB's, and other hazardous materials, or disposal 
actions mandated by Congress. In addition, if the building or structure 
is listed, or eligible for listing, in the National Register of 
Historic Places, then compliance with section 106 of the National 
Historic Preservation Act is required. (Checklist required).
    (14) Outleasing of historic lighthouse properties as outlined in 
the Programmatic Memorandum of Agreement between the Coast Guard, 
Advisory Council on Historic Preservation, and the National Conference 
of State Historic Preservation Officers. (Checklist required).
    (15) Transfer of real property from the Coast Guard to the General 
Services Administration, Department of the Interior, and other Federal 
departments and agencies, or as mandated by Congress; and the granting 
of leases, permits, and easements where there is no substantial change 
in use of the property. (Checklist required).
    (16) Renewals and minor amendments of existing real estate licenses 
or grants for use of government-owned real property where prior 
environmental review has determined that no significant environmental 
effects would occur.
    (17) New grants or renewal of existing 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; for such existing rights-of-way as electrical, 
telephone, and other transmission and communication lines; water, 
wastewater, stormwater, and irrigation pipelines, pumping stations, and 
facilities; and for similar utility and transportation uses. (Checklist 
required).
    (18) Defense preparedness training and exercises conducted on other 
than Coast Guard property, where the lead agency or department is not 
Coast Guard or DOT and the lead agency or department has completed its 
NEPA analysis and documentation requirements.
    (19) Defense preparedness training and exercises conducted on Coast 
Guard property that do not involve undeveloped property or increased 
noise levels over adjacent property and that involve a limited number 
of personnel, such as exercises involving primarily electronic 
simulation or command post personnel.
    (20) Simulated exercises, including tactical and logistical 
exercises that involve small numbers of personnel.
    (21) Training of an administrative or classroom nature.
    (22) Operations to carry out maritime safety, maritime law 
enforcement, search and rescue, domestic ice breaking, and oil or 
hazardous substance removal programs that have been the subject of a 
programmatic NEPA analysis and documentation.
    (23) Actions performed as a part of Coast Guard operations and the 
Aids to Navigation Program to carry out statutory authority in the area 
of establishment of floating and minor fixed aids to navigation, except 
electronic sound signals.
    (24) Routine movement of personnel and equipment, and the routine 
movement, handling, and distribution of nonhazardous and hazardous 
materials and wastes in accordance with applicable regulations.
    (25) Coast Guard participation in disaster relief efforts under the 
guidance or leadership of another Federal agency that has taken 
responsibility for NEPA compliance.
    (26) Data gathering, information gathering, and studies that 
involve no physical change to the environment. Examples include 
topographic surveys, bird counts, wetland mapping, and other 
inventories.
    (27) Natural and cultural resource management and research 
activities that are in accordance with interagency agreements and which 
are designed to improve or upgrade the Coast Guard's ability to manage 
those resources.
    (28) Contracts for activities conducted at established laboratories 
and facilities, to include contractor-operated laboratories and 
facilities, on Coast Guard-owned property where all airborne emissions, 
waterborne effluents, external radiation levels, outdoor noise, and 
solid and bulk waste disposal practices are in compliance with existing 
applicable Federal, State, and local laws and regulations. (Checklist 
required).
    (29) Approval of recreational activities (such as a Coast Guard 
unit picnic) which do not involve significant physical alteration of 
the environment, increase disturbance by humans of sensitive natural 
habitats, or disturbance of historic properties, and which do not occur 
in, or adjacent to, areas inhabited by threatened or endangered 
species. (Checklist required unless the activity will take place at a 
location developed or created for that type of activity).
    (30) Review of documents, such as studies, reports, and analyses, 
prepared for legislative proposals that did not originate in DOT and 
that relate to matters that are not the primary responsibility of the 
Coast Guard.
    (31) Planning and technical studies which do not contain 
recommendations for authorization or funding for future construction, 
but may recommend further study. This includes engineering efforts or 
environmental studies undertaken to define the elements of a proposal 
or alternatives sufficiently so that the environmental effects may be 
assessed and does not exclude consideration of environmental matters in 
the studies.
    (32) Bridge Administration Program actions which can be described 
as one of the following:
    (a) Modification or replacement of an existing bridge on 
essentially the same alignment or location. Excluded are bridges with 
historic significance or bridges providing access to undeveloped 
barrier islands and beaches.
    (b) Construction of pipeline bridges for transporting potable 
water.
    (c) Construction of pedestrian, bicycle, or equestrian bridges and 
stream gauging cableways used to transport people.
    (d) Temporary replacement of a bridge immediately after a natural 
disaster or a catastrophic failure for reasons of public safety, 
health, or welfare.
    (e) Promulgation of operating regulations or procedures for 
drawbridges. (Checklist required).
    (f) Identification of advance approval waterways under 33 CFR 
115.70.
    (g) Any Bridge Program action which is classified as a CE by 
another Department of Transportation agency acting as lead agency for 
such an action.
    (33) Preparation of guidance documents that implement, without 
substantive change, the applicable Commandant Instruction or other 
Federal agency regulations, procedures, manuals, and other guidance 
documents.
    (34) Promulgation of the following regulations: (Note: When relying 
upon a CE in promulgating regulations, an environmental analysis 
checklist and an attached CED (Enclosure 6) must be filed in the 
rulemaking docket before publication of a Notice of Proposed Rulemaking 
(NPRM), or an Interim or Final Rule not preceded by an NPRM, unless 
specifically indicated below.)
    (a) Regulations which are editorial or procedural, such as those 
updating addresses or establishing application procedures.
    (b) Regulations concerning internal agency functions or 
organization or personnel administration, such as funding, establishing 
Captain of the Port boundaries, or delegating authority.
    (c) Regulations concerning the training, qualifying, licensing, and 
disciplining of maritime personnel.
    (d) Regulations concerning manning, documentation, admeasurement, 
inspection, and equipping of vessels.
    (e) Regulations concerning equipment approval and carriage 
requirements.
    (f) Regulations establishing, disestablishing, or changing the size 
of Special Anchorage Areas or anchorage grounds. (Checklist and CED not 
required for actions that disestablish or reduce the size of the Area 
or grounds).
    (g) Regulations establishing, disestablishing, or changing 
Regulated Navigation Areas and security or safety zones. (Checklist and 
CED not required for actions that disestablish or reduce the size of 
the area or zone. For temporary areas and zones that are established to 
deal with emergency situations and that are less than one week in 
duration, the checklist and CED are not required. For temporary areas 
and zones that are established to deal with emergency situations and 
that are one week or longer in duration, the checklist and CED will be 
prepared and submitted after issuance or publication.)
    (h) Special local regulations issued as a condition of a granted 
regatta or marine parade permit that was issued after appropriate 
environmental analysis (Checklist and CED not required.)
    (i) Regulations in aid of navigation, such as those concerning 
rules of the road, International Regulations for the Prevention of 
Collisions at Sea (COLREGS), bridge-to-bridge communications, vessel 
traffic services, and marking of navigation systems.
    (35) Routine approvals of regatta and marine parade permits for 
marine events which are described as follows:
    (a) Fishing tournaments involving approximately 50 powerboats (up 
to approximately 26 feet in length with engines of approximately 50 HP) 
and not more than approximately 200 spectator craft.
    (b) Sailing competitions or demonstrations involving approximately 
50 sailboats (up to approximately 26 to 50 feet in length which may 
have auxiliary propulsion of approximately 50 HP) and not more than 
approximately 200 spectator craft.
    (c) Sailing competitions or demonstrations involving approximately 
100 sailboats (up to approximately 26 feet in length) or sailboats and 
not more than approximately 200 spectator craft.
    (d) Paddling, rowing, or floating competitions or demonstrations 
involving approximately 200 canoes, kayaks, rowboats, rowing sculls, or 
rafts (up to approximately 26 feet in length) and not more than 
approximately 200 spectator craft.
    (e) Rowing competitions or demonstrations involving approximately 
200 racing shells (up to approximately 60 feet in length) and not more 
than approximately 200 spectator craft.
    (f) Parades involving approximately 100 sailboats, powerboats, 
unpowered watercraft, or a combination thereof (up to approximately 50 
feet in length with approximately 50 HP primary or auxiliary 
propulsion), operating at no or low wake speed and not more than 
approximately 200 spectator craft.
    (g) Swimming competitions involving approximately 800 swimmers and 
not more than approximately 200 spectator craft.
    (h) Fireworks displays over water not lasting over approximately 30 
minutes and involving not more than approximately 200 spectator craft.

    Dated: July 18, 1994.
J.F. Milbrand,
Acting Chief, Office of Engineering, Logistics and Development.
[FR Doc. 94-18553 Filed 7-28-94; 8:45 am]
BILLING CODE 4910-14-M