[Federal Register Volume 60, Number 149 (Thursday, August 3, 1995)]
[Proposed Rules]
[Pages 39694-39698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19136]



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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 10

RIN 3067-AC41


Environmental Considerations/Categorical Exclusions

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: This rule proposes to revise the categories of actions or 
categorical exclusions that normally would not require an environmental 
impact statement or environmental assessment. These proposed changes 
are intended to reduce the administrative processes and decrease the 
time required for project funding and implementation, while still 
ensuring that FEMA satisfies environmental concerns and issues. The 
proposed changes are consistent with Federal directives, regulations 
and statutes.

DATES: We invite comments on the proposed rule, which must be received 
on or before September 18, 1995.

ADDRESSES: Please submit written comments to the Rules Docket Clerk, 
Office of the General Counsel, Federal Emergency Management Agency, 500 
C Street SW., room 840, Washington, DC 20472, (fax) (202) 646-4536.

FOR FURTHER INFORMATION CONTACT: Rick Shivar, Office of Policy and 
Assessment, Federal Emergency Management Agency, 500 C Street SW., 
Washington, DC 20472, or phone (202) 646-3610.

SUPPLEMENTARY INFORMATION: The proposed changes respond to numerous 
suggestions for additional exclusion categories and for modifications 
to existing exclusion categories. They reflect several years' 
experience on the types of actions that generally receive a finding of 
no significant impact after FEMA makes an environmental assessment. The 
proposed changes are intended to speed the approval of those projects 
with no potential for significant environmental effects and to allow 
attention to be focused on those projects with potential environmental 
concerns.
    In order to produce a complete and effective update of exclusion 
categories, we conducted a review of the environmental assessments (EA) 
and the findings of no significant impact (FONSI) that FEMA has issued. 
In the last few years we have completed over 340 EAs, but there is only 
one case where an environmental impact statement (EIS) was written. 
While many EAs identified impacts that were able to be mitigated below 
the level of significance, we found that the clear majority of actions 
have no significant impact. Reviewing this last group revealed specific 
types of projects that historically did not produce significant 
environmental effects. In conjunction with the review of FEMA's EAs, we 
conducted a literature review of other Federal documents containing 
similar types of exclusions to ensure consistency of FEMA's exclusions 
with other Federal agencies' regulations. The results of these two 
reviews are the basis for the proposed change to FEMA's list of 
exclusion categories.
    These proposed changes are also in keeping with the Council on 
Environmental Quality's guidance to 

[[Page 39695]]
Federal agencies on this subject (48 FR 34263, July 28, 1983). That 
guidance encourages Federal agencies to add flexibility to implementing 
procedures to allow new types of actions to be classified as 
categorical exclusions (CATEXs) with minimal documentation required. 
This is done by developing more broadly defined categories as well as 
providing examples of typical CATEXs, rather than a comprehensive list, 
so that specific actions not previously listed by an agency can be 
considered for CATEX status on a case-by-case basis.
    The proposed exclusion categories would not affect FEMA's 
responsibility to comply with all other applicable local, state, and 
Federal laws and regulations relating to health, safety and the 
environment. This would encompass Federal environmentally oriented 
statutes including, among others: the Clean Air Act, the Clean Water 
Act, the Resource Conservation and Recovery Act, the Comprehensive 
Environmental Response, Compensation and Liability Act, the Coastal 
Zone Management Act, the Coastal Barrier Resources Act, the Endangered 
Species Act, the National Historic Preservation Act, and the 
Archaeological and Historic Preservation Act. It would not affect 
FEMA's responsibilities under Executive Orders 11988, 11990, and 12898. 
Nor would it affect FEMA's implementing regulations at 44 CFR part 9, 
or FEMA's National Flood Insurance Program rules at 44 CFR parts 59 
through 77.
    A point of clarification of the term ``categorical exclusion'' is 
necessary in the discussion of this proposed rule. Section 316 of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act 
(Stafford Act), Pub.L. 93-288, as amended, 42 U.S.C. 5159, provides (1) 
for a statutory exclusion from NEPA requirements for certain actions 
taken under specific sections of that Act (sections 402, 403, 407 and 
502), and (2) for those actions under section 406 of the Stafford Act 
that have ``the effect of restoring a facility substantially to its 
condition prior to the disaster or emergency.'' While statutory 
exclusions are exempted from all NEPA documentation, actions that are 
categorically excluded from preparation of an EA or an EIS must be 
documented by FEMA under this part. However, as with actions 
categorically excluded, an action statutorily excluded from NEPA is not 
exempt from the requirements of the other environmentally oriented 
statutes indicated above. To help determine the level of environmental 
review required and, specifically, when neither an EA nor an EIS is 
likely to be required for a proposed action, the list of exclusion 
categories presented by this rule is comprehensive in that it includes 
both categorical exclusions and those actions that are statutorily 
excluded (denoted by [SE]).
    We present the list of proposed exclusion categories with 
administrative type actions appearing first followed by emergency and 
other actions. The administrative actions relate mainly to activities 
that in and of themselves do not normally impact the environment, such 
as: planning, design, procurement, acquisition, training, studies and 
other administrative processes. The emergency and other actions mainly 
address emergency, disaster-related, or other activities that could 
impact features of the human and natural environment, such as: 
construction; maintenance or repair of facilities or vegetation; 
relocation of structures; floodproofing; emergency response and 
deployment; physical and other assistance.
    Since the proposed revision would republish and redesignate some 
paragraphs, and modify other paragraphs, the following discussion is 
directed only at those items that are added, removed, or revised.
    44 CFR 10.8 would be revised to redesignate and revise the 
discussion of statutory exclusions to recognize the difference between 
the basic nature of the statutory exclusion and of the CATEX. We also 
updated references to sections of the Stafford Act.
    New paragraph (d)(2) modifies the nomenclature ``List of 
categorical exceptions'' to ``List of exclusion categories'' to reflect 
the categorical nature of the list as opposed to a list of exceptions. 
This change is also reflected in new paragraph (d)(6). New paragraphs 
(d)(2)(i),(ii),(iii),(v),(vi), and (vii) make minor wording revisions 
and clarify the language of existing categories but do not change their 
general substance.
    New paragraph (d)(2)(iv) would address inspection and monitoring 
processes that are part of the compliance requirements for various 
programs. These activities are passive as to the environment. Any 
federally funded action that the inspections or monitoring might 
recommend is subject to the NEPA process.
    Paragraph (d)(2)(viii) would allow for the timely evaluation and 
acquisition of land in advance of project development to avoid land 
speculation that could arise with early public disclosure. This 
categorical exclusion applies only to acquisition of the land. Any 
subsequent use of the property for a facility or project must be 
considered as a separate action under this part without regard to 
ownership of the land.
    Paragraph (d)(2)(ix) would address the purchase or leasing of 
existing facilities when land use requirements allow the proposed use.
    Paragraph (d)(2)(x) would allow for interagency exchange of real 
property.
    Paragraph (d)(2)(xi) would cover the acquisition, installation, or 
operation of utilities, gauges, communication and warning systems when 
using established rights-of-way, existing systems or facilities.
    Paragraph (d)(2)(xiii) would allow for the planting of indigenous 
vegetation, for example, to reduce erosion or fire hazard.
    Paragraph (d)(2)(xiv) would apply to the removal of structures, 
improvements or debris to sites permitted for such material. The 
paragraph also applies to the demolition, as well as removal, of 
structures to such permitted locations.
    Paragraph (d)(2)(xv) would apply to small, individual structures 
that are to be relocated to a new site, where the new site is developed 
with substantially completed infrastructure, and existing lots have 
been previously disturbed, for example, by grading or prior 
construction activities.
    Paragraph (d)(2)(xvi) would exclude the act of granting a community 
exception for residential basement floodproofing pursuant to the 
National Flood Insurance Program.
    Paragraph (d)(2)(xvii) would provide to actions under the 
mitigation and other programs the same exclusion available by statute 
to actions funded pursuant to section 406 of the Stafford Act whereby a 
facility can be restored to its approximate preexisting design, 
function and location.
    Paragraph (d)(2)(xviii) would allow for improvements or upgrading 
to current codes or standards an existing facility in an already 
developed and appropriately zoned area on previously disturbed or 
graded lots. This would include improvements in the disturbed portion 
of a lot of an existing building, culverts and berms within the 
previously disturbed perimeter of a road, storm drainage or utility 
system or existing facility. New construction of hazard mitigation 
measures that satisfy the conditions of this section are also covered.
    Paragraph (d)(2)(xix) would permit actions within enclosed 
facilities which comply with local construction, noise, pollution and 
waste disposal regulations.
    Paragraph (d)(2)(xx) and paragraph (d)(2)(xxi) would incorporate 
some existing statutory exclusions into the CATEX list. Paragraph 
(d)(2)(xx) would 

[[Page 39696]]
exclude, in addition to the existing category for the deployment and 
support of Emergency Support Teams, direct response activities 
including activation and support of the Catastrophic Disaster Response 
Group, Regional Operations Centers, Emergency Response Teams, Urban 
Search and Rescue teams, and situation assessment, reconnaissance and 
other data gathering efforts in response to and for recovery from a 
disaster.

    Paragraph (d)(2)(xxi) would exclude emergency assistance and relief 
activities and would rephrase terminology to reflect the amended 
Stafford Act. This would include general federal and essential 
assistance (Stafford Act sections 402 and 403), food coupons and 
commodities (sections 412 and 413), and Federal emergency assistance 
(section 502). Debris removal (section 407) would become less 
restrictive. The temporary housing definition (section 408) would be 
simplified as would the definitions of the individual and family grant 
(section 411) and community disaster loan (section 417) exclusions.

    In paragraph (d)(3) the list of Extraordinary Circumstances, which 
was section 10.8(e), would be updated to clarify the circumstances that 
may cause an action that is normally categorically excluded to have the 
potential for significant environmental impact. The previous paragraph 
(e)(2) describing ``actions in highly populated or congested areas'' is 
replaced in paragraph (d)(3)(ii) with a more workable ``actions with a 
high level of controversy.'' In paragraph (d)(3)(iv) clarifying 
language is added to the term ``unproven technology.'' In paragraph 
(d)(3)(vi) the hazardous substance condition was changed from ``use'' 
to ``presence.'' Paragraph (d)(3)(vii), which addresses flood plains or 
wetlands, would be expanded to include other special or critical 
resources, i.e., coastal zones, wildlife refuge and wilderness areas, 
wild and scenic rivers, sole or principal drinking water aquifers, etc.

    Two new categories were added to insure that adverse health and 
safety effects, paragraph (d)(3)(viii) and the potential violation of 
Federal, state, local or tribal requirements, paragraph(d)(3)(ix), 
would be considered as extraordinary circumstances.

    Paragraph (d)(5), Revocation, would be added to assure that if the 
conditions upon which a categorical exclusion was granted have changed 
or new information is discovered indicating that the action no longer 
meets the conditions of the categorical exclusion, the responsible 
official must revoke the exclusion and ask for a full environmental 
review.
    Paragraph (d)(6)(i) and (d)(6)(ii), which addresses changes to the 
list of exclusion categories, adds ``directorates'' to ``offices and 
administrations'' to more correctly reflect all the organizational 
entities in FEMA.

National Environmental Policy Act

    The requirements of 44 CFR Part 10, Environmental Consideration, 
would exclude this proposed rule. FEMA has not prepared an 
environmental impact statement.

Regulatory Flexibility Act

    I certify that this proposed rule would not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule adds eight 
categories to FEMA's categorical exclusions from reviews under the 
National Environmental Policy Act, and FEMA does not expect the rule 
(1) would affect adversely the availability of disaster assistance 
funding to small entities, (2) would have significant secondary or 
incidental effects on a substantial number of small entities, or (3) 
would create any additional burden on small entities.

Regulatory Planning and Review

    This proposed rule is not a significant regulatory action within 
the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993, 
Regulatory Planning and Review, 3 CFR, 1994 Comp., p. 638. To the 
extent possible this proposed rule adheres to the regulatory principles 
set forth in E.O. 12866, but has not been reviewed by the Office of 
Management and Budget under E.O. 12866.

Paperwork Reduction Act

    This proposed rule does not involve any collection of information 
for the purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism

    This proposed rule involves no policies that have federalism 
implications under Executive Order 12612, Federalism, October 26, 1987, 
3 CFR, 1987 Comp., p.252.

Executive Order 12778, Civil Justice Reform

    This proposed rule meets the applicable standards of section 
2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 
1991 Comp., p.309.

List of Subjects in 44 CFR Part 10

    Environmental impact statements.

    Accordingly, 44 CFR part 10 is proposed to be amended as follows:

PART 10--ENVIRONMENTAL CONSIDERATIONS

    1. The authority citation for part 10 is revised to read as 
follows:

    Authority: 42 U.S.C. 4321 et seq.; E.O. 11514 of March 7, 1970, 
35 FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977 
Comp., p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 
CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 
CFR, 1979 Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 
CFR, 1979 Comp., p. 412, as amended.

    2. In Sec. 10.8, paragraphs (c), (d), and (e) are revised to read 
as follows:


Sec. 10.8  Determination of requirement for environmental review.

* * * * *
    (c) Statutory exclusions. The following actions are statutorily 
excluded from NEPA and the preparation of environmental impact 
statements and environmental assessments by section 316 of the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 
42 U.S.C. 5159 (Stafford Act);
    (1) Action taken or assistance provided under sections 403, 407, 
502, or 422 of the Stafford Act; and
    (2) Action taken or assistance provided under section 406 or 422 of 
the Stafford Act that has the effect of restoring facilities 
substantially as they existed before a major disaster or emergency.
    (d) Categorical Exclusions (CATEXs). CEQ regulations at 40 CFR 
1508.4 provide for the categorical exclusion of actions that do not 
individually or cumulatively have a significant impact on the human 
environment and for which, therefore, neither an environmental 
assessment nor an environmental impact statement is required. Full 
implementation of this concept will help FEMA avoid unnecessary or 
duplicate effort and concentrate resources on significant environmental 
issues.
    (1) Criteria. The criteria used for determination of those 
categories of actions that normally do not require either an 
environmental impact statement or an environmental assessment include:
    (i) Minimal or no effect on environmental quality;
    (ii) No significant change to existing environmental conditions; 
and
    (iii) No significant cumulative environmental impact. 

[[Page 39697]]

    (2) List of exclusion categories. FEMA has determined that the 
following categories of actions have no significant effect on the human 
environment and are, therefore, categorically excluded from the 
preparation of environmental impact statements and environmental 
assessments except where extraordinary circumstances as defined in 
paragraph (d)(5) of this section exist. If the action is of an 
emergency nature as described in section 316 of the Stafford Act (42 
U.S.C. 5159), it is statutorily excluded and is noted with [SE]. 
Paragraphs (c)(2) (i) through (x) of this section address 
administrative actions and paragraphs (c)(2) (xi) through (xxi) of this 
section relate to emergency and other actions.
    (i) Administrative actions such as personnel actions, travel, 
procurement of supplies, etc., in support of normal day to day 
activities and disaster related activities;
    (ii) Preparation, revision, and adoption of regulations, 
directives, manuals, and other guidance documents related to actions 
which qualify for categorical exclusions;
    (iii) Studies that involve no commitment of resources other than 
manpower and associated funding;
    (iv) Inspection and monitoring activities, granting of variances, 
and actions to enforce Federal, state, or local codes, standards or 
regulations;
    (v) Training activities and both training and operational exercises 
utilizing existing facilities in accordance with established procedures 
and land use designations;
    (vi) Procurement of goods and services for support of day-to-day 
and emergency operational activities, and the storage of goods other 
than hazardous materials, so long as storage occurs on previously 
disturbed land or in existing facilities;
    (vii) The acquisition of properties under any applicable authority 
when the acquisition is from a willing seller, the buyer coordinated 
acquisition planning with affected authorities, and the acquired 
property will be dedicated in perpetuity to uses that are compatible 
with open space, recreational, or wetland practices.
    (viii) Acquisition of unimproved real property not related to 
specific facility plans or when necessary to protect the interests of 
FEMA in advance of final project approval; (This categorical exclusion 
applies only to the acquisition. Any subsequent use of the property for 
a facility or project must be considered under this part without regard 
to ownership of the real property);
    (ix) Acquisition or lease of existing facilities where planned uses 
generally conform to past use or local land use requirements;
    (x) Transfer of administrative control of FEMA real property to 
another Federal agency;
    (xi) Acquisition, installation, or operation of utility and 
communication systems that use existing rights-of-way, distribution 
systems, or facilities;
    (xii) Routine maintenance, repair, and grounds-keeping activities;
    (xiii) Planting of indigenous vegetation;
    (xiv) Demolition of structures and/or disposal of uncontaminated 
structures and other improvements for removal to permitted off-site 
locations;
    (xv) Physical relocation of individual structures to previously 
disturbed or graded lots in existing developed areas with substantially 
completed infrastructure;
    (xvi) Granting of community-wide exceptions for floodproofed 
residential basements meeting the requirements of 44 CFR 60.6(c) under 
the National Flood Insurance Program;
    (xvii) Repair, reconstruction, restoration, elevation, retrofiting, 
or replacement of any facility in a manner that substantially conforms 
to the preexisting design, function, and location; [SE, in part]
    (xviii) Improvements or upgrading to current codes and standards of 
existing facilities and construction of hazard mitigation measures when 
those actions are in existing developed areas with substantially 
completed infrastructure, and when those actions do not alter function, 
system capacity, or land use; provided the operation of the completed 
project will not, of itself, have an adverse effect on the quality of 
the human environment;
    (xix) Actions conducted within enclosed facilities where all 
airborne emissions, waterborne effluent, external radiation levels, 
outdoor noise, and solid and bulk waste disposal practices are in 
compliance with existing Federal, state, and local laws and 
regulations;
    (xx) The following planning and administrative activities in 
support of emergency and disaster response and recovery:
    (A) Activation of the Emergency Support Team and convening of the 
Catastrophic Disaster Response Group at FEMA headquarters;
    (B) Activation of the Regional Operations Center and deployment of 
the Emergency Response Team, in whole or in part;
    (C) Deployment of Urban Search and Rescue teams;
    (D) Situation Assessment including ground and aerial 
reconnaissance;
    (E) Information and data gathering and reporting efforts in support 
of emergency and disaster response and recovery and hazard mitigation; 
and
    (xxi) The following emergency and disaster response, recovery and 
hazard mitigation activities pursuant to the Stafford Act:
    (A) General Federal Assistance (Sec. 402); [SE]
    (B) Essential Assistance (Sec. 403); [SE]
    (C) Debris Removal (Sec. 407) [SE]
    (D) Temporary Housing (Sec. 408), except locating multiple mobile 
homes or other readily fabricated dwellings on sites, other than 
private residences, not previously used for such purposes;
    (E) Unemployment Assistance (Sec. 410);
    (F) Individual and Family Grant Programs (Sec. 411), except to the 
extent that grants will be used for restoring, repairing or building 
private bridges, or purchasing mobile homes or other readily fabricated 
dwellings;
    (G) Food Coupons and Distribution (Sec. 412);
    (H) Food Commodities (Sec. 413);
    (I) Legal Services (Sec. 415);
    (J) Crisis Counseling Assistance and Training (Sec. 416);
    (K) Community Disaster Loans (Sec. 417);
    (L) Emergency Communications (Sec. 418);
    (M) Emergency Public Transportation (Sec. 419);
    (N) Fire Suppression Grants (Sec. 420); and
    (O) Federal Emergency Assistance (Sec. 502) [SE].
    (3) Extraordinary circumstances. If extraordinary circumstances 
exist within an area affected by an action, such that an action that is 
categorically excluded from NEPA compliance may have a significant 
adverse environmental impact, an environmental assessment shall be 
prepared. Extraordinary circumstances that may have a significant 
environmental impact include:
    (i) Greater scope or size than normally experienced for a 
particular category of action;
    (ii) Actions with a high level of public controversy;
    (iii) Potential for degradation, even though slight, of already 
existing poor environmental conditions;
    (iv) Employment of unproven technology with potential adverse 
effects or actions involving unique or unknown environmental risks;
    (v) Presence of endangered or threatened species or their critical 
habitat, archaeological remains, or other protected resources;
    (vi) Presence of hazardous or toxic substances;
    (vii) Actions with the potential to adversely affect special status 
areas or other critical resources such as 

[[Page 39698]]
wetlands, coastal zones, wildlife refuge and wilderness areas, wild and 
scenic rivers, sole or principle drinking water aquifers;
    (viii) Potential for adverse effects on health or safety; and
    (ix) Potential to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.
    (4) Documentation. The Regional Director will prepare and maintain 
an administrative record of each proposal that is determined to be 
categorically excluded from the preparation of an environmental impact 
statement or an environmental assessment.
    (5) Revocation. The Regional Director shall revoke a determination 
of categorical exclusion and shall require a full environmental review 
if, subsequent to the granting of an exclusion, the Regional Official 
determines that due to changes in the proposed action or in light of 
new findings, the action no longer meets the requirements for a 
categorical exclusion.
    (6) Changes to the list of exclusion categories. (i) The FEMA list 
of exclusion categories will be continually reviewed and refined as 
additional categories are identified and experience is gained in the 
categorical exclusion process. An office, directorate, or 
administration of FEMA may, at any time, recommend additions or changes 
to the FEMA list of exclusion categories.
    (ii) Offices, directorates, and administrations of FEMA are 
encouraged to develop additional categories of exclusions necessary to 
meet their unique operational and mission requirements.
    (iii) If an office, directorate, or administration of FEMA proposes 
to change or add to the list of exclusion categories, it shall first:
    (A) Obtain the approval of the Environmental Officer and FEMA's 
Office of the General Counsel; and
    (B) Publish notice of such proposed change or addition in the 
Federal Register at least 60 days before the effective date of such 
change or addition.
    (e) Actions that normally require an environmental assessment. When 
a proposal is not one that normally requires an environmental impact 
statement and does not qualify as a categorical exclusion, the Regional 
Director shall prepare an environmental assessment.

    Dated: July 28, 1995.
Harvey G. Ryland,
Deputy Director.
[FR Doc. 95-19136 Filed 8-2-95; 8:45 am]
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