[Federal Register Volume 69, Number 35 (Monday, February 23, 2004)]
[Rules and Regulations]
[Pages 8108-8112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3590]


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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]
BILLING CODE 3810-FF-P