[Federal Register Volume 64, Number 37 (Thursday, February 25, 1999)]
[Proposed Rules]
[Pages 9286-9289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4705]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 64, No. 37 / Thursday, February 25, 1999 / 
Proposed Rules  

[[Page 9286]]


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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: Proposed rule.

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SUMMARY: The Department of the Navy is revising its regulations which 
establish the responsibilities and procedures for complying with the 
National Environmental Policy Act (NEPA). This revision clarifies when 
certain Department of the Navy actions must be studied to determine 
their effect on the human environment and what types of activities are 
excluded from the NEPA documentation requirements.

DATES: Comments must be received by April 26, 1999.

ADDRESSES: Interested parties should submit written comments to: Mr. 
Lew Shotten, Office of the Assistant Secretary of the Navy 
(Installations and Environment), 2000 Navy Pentagon, Washington, DC 
20350.

FOR FURTHER INFORMATION CONTACT: Mr. Lew Shotten, Office of the 
Assistant Secretary of the Navy (Installations and Environment), (703) 
588-6671.

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 decisionmaking 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 which must 
be addressed in agency procedures. These regulations revise the 
Department's implementing regulations that were originally issued on 
August 20, 1990.
    Significant changes that this new rule brings about include: 
revision of and additions to the DON list of approved categories of 
actions excluded (CATEXed) from further documentation under NEPA; 
revised criteria for disallowing the application of listed CATEXs; 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 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.

    Accordingly, part 775 of chapter VI of title 32 of the Code of 
Federal Regulations is proposed to be revised to read as follows:

PART 775--POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE 
NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY

Sec.
775.1  Purpose.
775.2  Scope.
775.3  Definitions.
775.4  Policy.
775.5  NEPA documentation.
775.6  Categorical exclusions.
775.7  Responsibilities.
775.8  Delegations of authority.
775.9  Completed documents.

    Authority: 49 U.S.C. 44502(d).

Sec. 775.1  Purpose.

    To implement the provisions of the National Environmental Policy 
Act (NEPA), 42 U.S.C. 4321 et. seq., 40 CFR 1500-1508, and other 
regulations, laws, Executive Orders and treaties and agreements that 
direct environmental planning procedures, and to assign 
responsibilities within the Department of the Navy (DON) for 
preparation, review, and approval of environmental documents prepared 
under NEPA.


Sec. 775.2  Scope.

    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.


Sec. 775.3  Definitions.

    (a) Action. A new or continuing activity, program, project , or 
exercise which is under the control and direction of the DON and that 
may change the physical environment or impact natural resources. An 
action is considered a proposed action and the requirements of this 
instruction become applicable when the action proponent has identified 
a program, project, exercise, or other activity and is actively 
preparing to make a decision among one or more alternative means of 
executing the program, project, exercise or other activity.
    (b) 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 decisionmaking 
authority for that action. In specific circumstances, the action 
proponent and decisionmaker 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.
    (c) Environmental Impact Statement (EIS). An environmental document 
prepared according to the requirements

[[Page 9287]]

of Council on Environmental Quality (CEQ) regulations (40 CFR parts 
1500-1508) for a major action which will have a significant effect on 
the quality of the human environment.
    (d) Environmental Assessment (EA). A concise document prepared 
according to the requirements of 40 CFR parts 1500-1508 which 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.
    (e) Categorical Exclusion (CATEX). A published category of actions 
which, under normal conditions, are excluded from further documentation 
requirements under NEPA.
    (f) 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.
    (g) Finding of No Significant Impact (FONSI). A document which sets 
out the reasons why an action not otherwise categorically excluded will 
not have a significant impact on the human environment.


Sec. 775.4  Policy.

    (a) It is the DON policy regarding NEPA, consistent with its 
mission and the environmental laws and regulations of the United States 
and applicable international treaties and agreements, to:
    (1) Initiate the NEPA processes as soon as possible 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 or Executive Order 12114 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, 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) or as an 
operation of law (e.g., reversionary interests in land recorded at the 
time the property was obtained), are not major federal actions in the 
context of NEPA and require no analysis or documentation under NEPA or 
CEQ regulations.


Sec. 775.5  NEPA documentation.

    (a) An EIS must be prepared for proposed major federal actions that 
clearly 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 to is likely to significantly 
affect the environment (even after mitigation), than an EIS will be 
prepared.
    (c) Where a federal agency has determined through experience, 
studies, or prior NEPA analysis that impacts normally resulting from a 
particular category of actions are not significant, a categorical 
exclusion (CATEX) may be used to exclude the proposed action from 
further analysis.
    (d) 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, which 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 
park lands;
    (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; and
    (v) Result in an uncontrolled or unpermitted releases of hazardous 
substances or require a conformity determination under standards of the 
Clean Air Act General Conformity Rule.


Sec. 775.6  Categorical exclusions.

    The following are actions which, under normal conditions, are 
categorically excluded from further documentation requirements under 
NEPA. These exclusions are separated into two groupings. Group I 
consists of actions which clearly do not have the potential for causing 
significant impacts on the human environment and consequently do not 
meet the basic definition of major federal action in the context of 
NEPA. Group II consists of actions which have the potential for causing 
significant impacts on the human environment but which, through 
experience, studies, or prior NEPA analysis, have been shown not to 
have significant environmental impacts. A decision to forego 
preparation of an EA or EIS on the basis of one or more categorical 
exclusions in Group II shall be documented by identifying the 
applicable CATEX and describing the proposed action to the extent 
required to support selection and use of a CATEX. Application of a 
categorical exclusion does not affect the applicability of other laws/
regulations (e.g., Endangered Species Act, Clean Water Act, and 
National Historic Preservation Act) to the proposed action.
    (a) Group I Categorical Exclusions.
    (1) Routine fiscal, administrative, and recreation/welfare 
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;
    (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;
    (8) Routine repair and maintenance of buildings, facilities, 
vessels, aircraft and

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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; and
    (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).
    (b) Group II Categorical Exclusions.
    (1) Actions 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 stormwater, and sanitary and industrial wastewater 
collection and treatment systems, and installation of fire fighting 
equipment);
    (2) The modification of existing systems or equipment when the 
environmental effects will remain substantially the same, and the use 
is consistent with applicable regulations;
    (3) Movement, handling and distribution of materials, including 
hazardous materials/wastes that when moved, handled, or distributed are 
in accordance with applicable regulations;
    (4) 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;
    (5) 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);
    (6) 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 military training 
exercises or research, development, test and evaluation;
    (7) Installation and operation of passive scientific measurement 
devices (e.g., antenna, 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;
    (8) Short term increases in air operations up to 50 percent of the 
typical operation rate, or increases of 50 operations per day, 
whichever is less;
    (9) 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;
    (10) Non-routine repair, 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;
    (11) 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;
    (12) 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);
    (13) Transfer of real property from DON to another military 
department or to another federal agency;
    (14) Receipt of property from another federal agency when there is 
no substantial change in land use;
    (15) Minor land acquisitions or disposals where anticipated or 
proposed land use is consistent with existing land use and zoning, both 
in type and intensity;
    (16) Disposal of excess easement interests to the underlying fee 
owner;
    (17) 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;
    (18) Land withdrawal continuances or extensions which merely 
establish time periods and where there is no significant change in land 
use;
    (19) Renewals and/or initial real estate ingrants and outgrants 
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 outleases);
    (20) 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, 
stormwater, and irrigation pipelines, pumping stations, and facilities; 
and for similar utility and transportation uses;
    (21) New construction that is consistent with 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);
    (22) Demolition, disposal, or improvements involving buildings or 
structures not on or eligible for listing on the National Register of 
Historic Places and when in accordance with applicable regulations 
including those regulations applying to removal of asbestos, PCBs, and 
other hazardous materials;
    (23) 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;
    (24) Decisions to close facilities, decommission equipment, and/or 
temporarily discontinue use of facilities or equipment, where the 
facility or equipment is not used to prevent/control environmental 
impacts);
    (25) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at 
an approved disposal site;
    (26) 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);
    (27) Pre-lease exploration activities for oil, gas or geothermal 
reserves, (e.g., geophysical surveys);
    (28) Natural resources management actions where underlying natural 
resources management decisions have been analyzed in an EA or EIS;

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    (29) 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);
    (30) Reintroduction of endemic or native species (other than 
endangered or threatened species) into their historic habitat when no 
substantial site preparation is involved;
    (31) Temporary closure of public access to DON property in order to 
protect human or animal life;
    (32) Actions similar in type, intensity and setting (including 
physical location and, where pertinent, time of year) to other actions 
for which it has been determined, in a DON EA or EIS, that there were 
no significant environmental impacts;
    (33) Actions which require the concurrence or approval of another 
federal agency where the action is a categorical exclusion of the other 
federal agency.


Sec. 775.7  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 environmental planning 
matters.
    (2) Direct the preparation of appropriate environmental documents 
and, with respect to those matters governed by SECNAV Instruction 
5000.2B of December 16, 1996, advise the Assistant Secretary of the 
Navy (Research Development and Acquisition (ASN(RD&A)) concerning 
environmental issues and concerning the appropriate level of 
environmental planning document 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 
5000.2B of December 16, 1996:
    (1) Ensure that DON acquisition programs and procurements comply 
with environmental laws, Executive Orders, regulations, and applicable 
Department of Defense (DOD) and DON environmental planning policies.
    (2) Review, sign, and approve for publication, as appropriate, 
environmental documents prepared under NEPA for proposed acquisition-
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) Ensure that subordinate commands establish procedures for 
implementing mitigation measures described in environmental planning 
documents.
    (4) Provide coordination as required for the preparation of 
environmental 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.
    (5) 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.


Sec. 775.8  Delegations 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 reference (g).
    (c) Previously authorized delegations of authority are continued 
until revised or withdrawn.


Sec. 775.9  Completed documents.

    This part does not invalidate, alter, or amend any NEPA documents 
already completed. Where only draft NEPA documents have been completed 
under previous guidance, final documents shall be completed in 
accordance with this part.

    Dated: February 17, 1999.
Ralph W. Corey,
Commander, U.S. Navy, Judge Advocate General's Corps, Alternate Federal 
Register Liaison Officer.
[FR Doc. 99-4705 Filed 2-24-99; 8:45 am]
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