[Federal Register Volume 79, Number 88 (Wednesday, May 7, 2014)]
[Notices]
[Pages 26213-26223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10342]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2014-0S-0062]


National Environmental Policy Act Implementation Procedures

AGENCY: Missile Defense Agency, Department of Defense.

ACTION: Proposed guidance with a request for comment.

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SUMMARY: The Missile Defense Agency (MDA or the Agency) plans to issue 
procedures to implement the National Environmental Policy Act (NEPA), 
Executive Order (E.O.) 11514, and Council on Environmental Quality 
(CEQ) regulations on implementing NEPA. Pursuant to CEQ regulations, 
the MDA is soliciting comments on its proposed procedures.

DATES: MDA is providing a 30-day review period. Comments must be 
received by: June 6, 2014.

ADDRESSES: You may submit comments, identified by docket number and 
title, using the Federal eRulemaking Portal: http://www.regulations.gov. All submissions received must include the agency 
name, docket number and title for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. Eric Sorrells, Chief, 
Environmental Management, at (256) 450-2677 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: MDA is responsible for developing, testing, 
and fielding an integrated, layered, Ballistic Missile Defense System 
(BMDS) to defend the United States, its deployed forces, allies, and 
friends against all ranges of enemy ballistic missiles in all phases of 
flight. Using complementary interceptors; land-, sea-, air-, and space-
based sensors; and battle management, command and control, and 
communications systems, the planned BMDS is intended to engage and 
negate all classes and ranges of ballistic missile threats.
    MDA and its predecessor organizations prepared several programmatic 
BMDS National Environmental Policy Act (NEPA) documents to analyze the 
environmental impacts of its actions. In addition, MDA has prepared or 
been a cooperating agency for over 70 environmental assessments (EAs) 
or environmental impact statements (EISs) for specific program 
activities. These NEPA documents cover activities including research 
and development, site preparation and construction, maintenance and 
sustainment, manufacture of test articles (prototypes), test and 
evaluation, fielding of missile defense systems and components, and the 
ultimate decommissioning and disposal or transfer of BMDS components 
and assets at many DoD installations, other agency sites, and 
industrial sites around the globe. Additionally, MDA has carefully 
considered over 200 records of environmental consideration (RECs)/
records of categorical exclusion/Air Force Form 813s documenting the 
use of the respective military Service's Categorical Exclusions 
(CATEXs) for

[[Page 26214]]

minor actions occurring on host installations or ranges.
    As a DoD agency, the MDA does not own real property. Because most 
MDA actions typically occur on host military service installations or 
ranges, or other Federal agency properties, MDA has historically relied 
upon our host installation or Federal agency's NEPA implementation, 
including their implementing procedures and CATEXs, to address the 
environmental impacts of MDA actions.
    With the issuance of CEQ guidance ``Establishing, Applying, and 
Revising Categorical Exclusions under the National Environmental Policy 
Act'' (2010) and after consulting informally with the CEQ, MDA 
determined the need to establish NEPA implementing procedures and 
CATEXs specific to MDA projects and actions. The information that MDA 
assembled while developing our CATEXs is described in the 
``Administrative Record for Missile Defense Agency Proposed Categorical 
Exclusions'' and is available on the MDA Web site at: http://www.mda.mil//news/environmental_reports.html.
    The proposed CATEXs describe the categories of actions that MDA 
determined will not normally have a potential significant effect, 
individually or cumulatively on the human environment; and together 
with the proposed implementing procedures will guide MDA organizations 
in carrying out the procedural requirements of NEPA.
    MDA has determined that issuing these procedures and CATEXs does 
not constitute a regulatory action or ``rule making'' as defined by 
Executive Order 12866 and the Regulatory Flexibility Act of 1980 (5 
U.S.C. 605(b)), which would have required additional review by the 
Office of Management and Budget.
    The text of the complete proposed Guidance document appears below.

    Dated: May 1, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

Table of Contents

Missile Defense Agency National Environmental Policy Act Procedures
    Purpose
    Scope
    Policy
    Responsibilities
    Public Involvement
    Environmental Review Categories
    Categorical Exclusions (CATEX)
    Environmental Assessment (EA)
    Finding of No Significant Impact (FONSI)
    Environmental Impact Statement (EIS)
    Scoping
    Draft Environmental Impact Statement (DEIS)
    Final Environmental Impact Statement (FEIS)
    Record of Decision (ROD)
    Memorandum for Record (MFR)
    Administrative Record
    Mitigation and Monitoring
    Cumulative Impacts
    Supplemental EAs or EISs
    Cooperating Agencies
    Adoption of EA or EIS
    Incorporation by Reference
    Tiering
    Classified Actions
    Actions Occurring on Host Installations or Ranges
    >Appendix A--Abbreviations and Acronyms
    Appendix B--Categorical Exclusions
    Appendix C--Record of Environmental Consideration (REC)

The National Environmental Policy Act Procedures for the Missile 
Defense Agency

1. Purpose

    These procedures implement the provisions of the NEPA, 42 U.S.C. 
4321 et seq. They adopt and supplement the CEQ regulations implementing 
NEPA, 40 CFR parts 1500-1508, by establishing policy, directing 
environmental planning, and assigning responsibilities in the MDA to 
prepare, review, and approve environmental documents that comply with 
NEPA.

2. Scope

    The policies and responsibilities in these procedures apply to 
activities conducted by MDA and its executing agents in the United 
States, its possessions, and territories. The potential environmental 
effects of MDA proposed activities in foreign countries and global 
commons will be considered in accordance with Executive Order 12114, 
``Environmental Effects Abroad of Major Federal Activities,'' DoD 
directives, host nation final governing standards, overseas 
environmental baseline guidance documents, status of forces agreements, 
and other international agreements.

3. Policy

    (a) It is MDA policy regarding NEPA, consistent with our mission 
and regulations and the environmental laws and regulations of the 
United States, to: (1) Start the NEPA process at the earliest possible 
time as an effective decision-making tool while evaluating a proposed 
action; (2) develop and carefully consider a range of reasonable 
alternatives to achieve the proposed actions; (3) write environmental 
analyses in plain English; and (4) to the maximum extent practical: (i) 
Include pollution prevention alternatives, (ii) consider sustainable 
transportation, greenhouse gas emissions, and energy choices, and (iii) 
ensure that, consistent with other national policies and national 
security requirements, we use practical means and measures to protect, 
restore, and enhance the quality of the environment and mitigate 
adverse consequences. MDA lacks projects or programs where actions are 
planned by private applicants or other non-Federal entities. Therefore, 
these procedures do not include the provision (as specified at 40 CFR 
1501.2(d)) to account for actions planned by private applicants or 
other non-Federal entities.
    (b) MDA will promote efficiency in its NEPA process through: (1) 
Being aware and involved with the MDA project advocate (or MDA 
proponent) in the NEPA process; (2) using programmatic analyses and 
``tiering,'' where appropriate, to make sure that decisions are made at 
the right levels, eliminating repetitive discussion, considering 
cumulative effects, and focusing on issues that are important and 
appropriate for discussion at each level; (3) using scoping and public 
involvement processes to ensure the analysis of issues of interest to 
the public and/or important to decision making; (4) eliminating 
needless paperwork by focusing documents on the major environmental 
issues affecting those decisions, including the use of adoption or 
incorporation by reference of previous, relevant NEPA analyses prepared 
by other agencies; (5) early integration of the NEPA process into all 
aspects of MDA planning to prevent disruption in decision making; (6) 
partnering or coordinating with agencies, organizations, and 
individuals whose specialized expertise improves the NEPA process; (7) 
clear and concise communication of data, documentation, and 
information; and (8) execution of the NEPA compliance process within 
the framework of the MDA's Environmental Management System.
    (c) MDA will periodically (at least every seven years) review the 
effectiveness of its NEPA program and these implementing procedures, 
the appropriateness and usefulness of our categorical exclusions 
(CATEXs), the accuracy of predicted findings of no significant impact, 
the effectiveness of mitigation, the ramifications of actions both 
individually and cumulatively, and the currency of the BMDS 2008 
Programmatic Environmental Impact Statement.
    (d) MDA will post NEPA implementing procedures, CATEXs, and summary 
information on our use of CATEXs for proposed actions on its public Web 
site.

[[Page 26215]]

4. Responsibilities

    (a) The MDA Director has overall authority to ensure MDA activities 
comply with NEPA and has final approval authority regarding EIS records 
of decision (RODs).
    (b) The Agency Environmental Executive (EE) acts as the principal 
MDA advisor on NEPA-related requirements. The EE will: (1) Ensure NEPA 
compliance of MDA activities in accordance with MDA NEPA implementing 
procedures and other applicable NEPA guidance and regulations; (2) 
coordinate with MDA stakeholders for NEPA issues regarding program/
element activities; (3) provide intra-agency and inter-agency liaison 
and coordination on NEPA-related matters; and (4) have signature 
authority for EA findings of no significant impact (FONSIs).
    (c) The Chief, Environmental Management will: (1) Educate and train 
MDA staff to implement NEPA; (2) coordinate with MDA's EE to maintain a 
record of the MDA's environmental activities and advance the national 
environmental policy articulated in NEPA, other Federal statutes, 
regulations, and Executive Orders; (3) prepare MDA NEPA reviews; (4) 
submit Federal Register (FR) notices for draft and final NEPA documents 
(as appropriate); (5) represent the MDA in NEPA-related matters with 
outside groups; (6) ensure applicable NEPA requirements are met on 
schedule during planning for any MDA action; (7) coordinate NEPA 
compliance actions at the proposal stage with MDA organizations; (8) 
ensure required NEPA mitigation measures are performed; and (9) ensure 
all documents being prepared by MDA are properly cleared for public 
release prior to the release or posting of the documents on any 
publicly accessible Web site or location.

5. Public Involvement

    MDA will make diligent efforts to involve the public in preparing 
and implementing its NEPA procedures in accordance with 40 CFR 
1501.4(b), 1506.6 and part 1503. When developing a plan to include the 
public and affected parties in the environmental analysis process, MDA 
will consider the following factors: (1) The magnitude of the 
environmental considerations associated with the proposed action; (2) 
the extent of expected public interest; and (3) any relevant questions 
of national concern.

6. Environmental Review Categories

    A proposed action may fall into these five broad categories for 
environmental review:
    (a) Exemption by law. To use an exemption by law, the law must 
apply to MDA and must prohibit, exempt, or make impossible full 
compliance with NEPA.
    (b) Emergencies. If an emergency requires MDA to take immediate 
actions for national defense or security or to protect life or 
property, the following provisions apply. (1) The responsible official 
may take actions necessary to control the immediate impacts of the 
emergency and are urgently needed to mitigate harm to life, property, 
or important natural or cultural resources. When taking such actions, 
the responsible official must take into account the probable 
environmental consequences of the emergency action and mitigate 
foreseeable adverse environmental effects to the extent practical. (2) 
For emergency actions other than those actions in paragraph (b)(1), if 
the responsible official responding to the emergency and the 
Environmental Management Division jointly conclude the emergency 
actions qualify for a CATEX and do not involve extraordinary 
circumstances that prevent using a CATEX as defined in these 
procedures, no further analysis is required to comply with NEPA before 
proceeding with emergency actions. The Environmental Management 
Division will prepare a Record of Environmental Consideration (REC) to 
document this conclusion. (3) If the responsible official proposes 
emergency actions other than those in paragraph (b)(1), and the actions 
do not qualify for a CATEX but will not likely have significant 
environmental impacts, MDA will document that determination in an 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) prepared in accordance with these procedures. If the 
responsible official determines that the proposed emergency actions 
must be undertaken before preparing an EA and FONSI, the Chief, 
Environmental Management will consult with the MDA EE about alternative 
arrangements for NEPA compliance. The EE may grant emergency 
alternative arrangements that meet the intent of NEPA, to the extent 
possible. To the maximum extent practical, these alternative 
arrangements will ensure public notification and involvement. They will 
focus on minimizing the adverse environmental consequences of the MDA 
response action and emergency. Any alternative arrangements must be 
documented. The Chief, Environmental Management will inform the Council 
on Environmental Quality (CEQ) of these arrangements at the earliest 
opportunity. (4) If the responsible official proposes emergency actions 
other than those in paragraph (b)(1) and those actions are likely to 
have significant environmental impacts, then the Chief, Environmental 
Management must consult with CEQ about alternative arrangements in 
accordance with CEQ regulations at 40 CFR 1506.11 as soon as possible.
    (c) Categorical Exclusions (CATEXs). These are categories of Agency 
actions (listed in Appendix B) that MDA has determined do not 
individually or cumulatively have a significant impact on the human 
environment. MDA may use CATEXs for a proposed action when there are no 
extraordinary circumstances that warrant further analysis in an EA or 
EIS.
    MDA will document designated CATEXs in writing using a REC 
(Appendix C). An MDA REC is a signed statement submitted with project 
documentation that concisely documents that an MDA action has received 
environmental review. The REC briefly describes the proposed action and 
time period, identifies the MDA proponent and approving official(s), 
addresses the use of screening criteria, and demonstrates that a review 
was conducted to ensure that no extraordinary circumstances indicate 
the need for further analysis. Qualifications for a CATEX are described 
later in this section.
    (d) Environmental Assessment (EA). Proposed MDA actions not covered 
in the first three categories must be analyzed to determine their 
potential environmental effects. An EA is used to determine whether to 
prepare an EIS or a FONSI (40 CFR 1501.4 and 1508.9); however, MDA is 
not required to prepare an EA if we have decided to prepare an EIS. 
(See 40 CFR 1501.3(a)). The requirements for the EA are addressed later 
in these procedures.
    (e) Environmental Impact Statement (EIS). When a proposed action 
has the potential for significant impacts or when an EA cannot support 
a FONSI, an EIS will be prepared (40 CFR 1501.4). An EIS is initiated 
by the notice of intent (NOI) and examines the potential significant 
environmental effects of the proposed action plus measures to mitigate 
those impacts. This process requires formal interaction with the 
public, a formal scoping process, specified timelines for public review 
of the documentation, and incorporation of public comments as well as 
any comments made by Federal, State, local, and tribal agencies. 
Requirements for the EIS are addressed later in these procedures.

[[Page 26216]]

7. CATEX

    (a) If the proposed action qualifies as a CATEX and the screening 
criteria are met, the action can proceed. Appendix B lists MDA's 
proposed CATEXs. Appendix C shows an MDA REC form to be used to 
document designated CATEXs.
    (b) MDA may use a CATEX only when the following screening criteria 
are met: (1) The proposed action is a Federal action over which we have 
primary responsibility and, as described in its entirety, is covered by 
one or more CATEXs listed in Appendix B; (2) the proposed action does 
not involve any of the extraordinary circumstances described in 
paragraph (d) below; and (3) the proposed action does not involve using 
unproven technology that could potentially result in unknown impacts.
    (c) Applying a CATEX to an action does not eliminate the need to 
meet other statutory or regulatory requirements including general 
conformity, federally-listed threatened or endangered species or their 
designated critical habitat, historic and cultural preservation, and 
safe drinking water requirements or other applicable Federal, state, or 
local regulatory requirements.
    (d) ``Extraordinary circumstances'' arise when a typically 
categorically-excluded action has the reasonable likelihood to result 
in individually or cumulatively significant impacts on public health, 
safety, or the environment, based on the specific situation where the 
CATEX is applied. Extraordinary circumstances that preclude using a 
CATEX include: (1) A reasonable likelihood the proposed action would 
result in uncertain, unique, or unknown environmental risks, or is 
scientifically controversial; (2) a reasonable likelihood the proposed 
action would establish precedents or commit MDA to future actions with 
potential for significant impacts; (3) a reasonable likelihood the 
proposed action would threaten to violate Federal, state, or local 
environmental laws; (4) a reasonable likelihood the proposed action 
would adversely affect environmentally sensitive resources, such as, 
but not limited to, Federally-listed threatened and endangered species, 
their designated critical habitat, wilderness areas, floodplains, 
wetlands, aquifer recharge areas, coastal zones, wild and scenic 
rivers, and significant fish or wildlife habitat, unless the impact was 
permitted, mitigated, or addressed through another environmental review 
process, for example, the Clean Water Act or Coastal Zone Management 
Act; (5) a reasonable likelihood the proposed action would adversely 
affect known national natural landmarks, or cultural or historic 
resources, including, but not limited to, property listed on or 
eligible for the National Register of Historic Places, unless the 
impact was permitted, mitigated, or addressed through another 
environmental review process, such as the National Historic 
Preservation Act; or (6) a reasonable likelihood of causing an increase 
in surface transportation congestion that would exceed capacity of the 
supporting infrastructure or otherwise cause significant impacts to the 
human environment.
    (e) MDA will review its CATEXs at least every seven years to 
determine whether modifications, additions, or deletions are 
appropriate, based on our experience and determination that 
environmental impacts of certain activities are not significant. If MDA 
acquires new responsibilities through legislation or administrative 
restructuring, we may propose new or modified CATEXs after gaining 
sufficient experience with the new activities to make a reasoned 
determination that any resulting environmental impacts are not 
significant. MDA will submit recommendations for modifications, 
additions, or deletions to CEQ for informal consultation and 
discussion.

8. Environmental Assessment (EA)

    (a) An EA is a concise public document agencies/services prepare to 
inform decision makers and determine if the proposed action has the 
potential to significantly impact the environment (which then would 
require the preparation of an EIS). In cases when no potentially 
significant impact is expected, an agency/service documents this 
determination with a FONSI. An EA may be prepared at any time to help 
agencies/services plan and make decisions. Typical MDA actions normally 
requiring an EA include: (1) New construction of facilities that 
involves more than five cumulative acres of new surface disturbance; 
(2) proposed actions that potentially result in significant changes to 
established land use; or (3) actions substantially altering ongoing MDA 
operations which could potentially lead directly, indirectly, or 
cumulatively to substantial environmental impacts.
    (b) An EA is prepared to assess the extent of potential 
environmental impacts resulting from a proposed action and 
alternatives, and to determine whether or not the impacts are likely to 
be significant. The EA must include, at a minimum, the following 
information and analyses: (1) Purpose and need for the proposed action 
or activity; (2) description of the proposed action; (3) brief 
discussion of the alternatives considered, including the ``no action'' 
alternative and the ``proposed action;'' (4) brief discussion of the 
affected environment and region of influence; (5) analysis of the 
potential environmental impacts of the proposed action and 
alternatives; (6) list of preparers, agencies and persons consulted; 
and (7) references.
    (c) The analysis of potential environmental impacts (item (b)(5) 
above) includes an assessment of the direct, indirect, and cumulative 
impacts that can reasonably be expected from taking the proposed action 
or reasonable alternatives. When there are direct or indirect effects 
on an aspect of the environment from the proposed action, then MDA must 
also consider cumulative effects. Cumulative effects are impacts on the 
environment resulting from the incremental impact of the action when 
added to other past, present, and reasonably foreseeable future 
actions. Actions by Federal agencies, non-Federal agencies and private 
parties must be included when considering cumulative effects, as 
specified in 40 CFR 1508.7.
    (d) The analysis for an EA leads to a determination to either issue 
a FONSI or a NOI to prepare an EIS.
    (e) MDA should coordinate preparing the EA with other agencies 
(e.g., Federal, state, local, or tribal governments) when the action 
involves resources they manage or protect. MDA may invite agencies with 
jurisdiction by law and with special expertise, to participate as 
cooperating agencies (40 CFR 1501.6, 1508.5, 1508.15, and 1508.26). 
Factors for determining whether to invite, decline, or end cooperating 
agency status are in Attachment 1 of the CEQ Memorandum for Heads of 
Federal Agencies: Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act (January 30, 
2002).
    (f) MDA may request public involvement in preparing the EA or 
revising or supplementing the EA, or choose to involve the public after 
the EA is prepared. MDA may use scoping but, would not publish the 
notice in the FR unless the proposed action was of national interest. 
MDA will select the type and format for public involvement to best 
support on-time and meaningful public input and coordinate it with the 
host range/installation where applicable.

[[Page 26217]]

9. Finding of No Significant Impact (FONSI)

    (a) MDA will prepare a FONSI as specified in 40 CFR 1508.13 to 
briefly describe why a proposed action will not have a significant 
effect on the environment and thus will not require an EIS.
    (b) MDA will make the proposed final EA and proposed FONSI 
available to the affected public, organizations, and individuals 
requesting them, and to whomever we have reason to believe is 
interested in the action through the various methods outlined in 40 CFR 
1506.6 as we deem appropriate. The public, other Federal, tribal, and 
state agencies and other government entities will be given an 
opportunity to review and comment on the proposed final EA and unsigned 
FONSI. The time period for public review will reflect the magnitude of 
the proposed action and its potential for controversy about 
environmental effects. A 30-day public review is normal, unless it is 
unwarranted due to the limited scope of the proposed action and/or lack 
of potential controversy about environmental effects. MDA will make EAs 
and FONSIs available on our public Web site and provide an electronic 
copy upon request. When MDA determines that it will enhance the 
opportunity for public review, we will provide hard copies to local 
public libraries or other public depositories.
    (c) After closure of the public review period and considering the 
comments received, the MDA Environmental Executive will determine 
whether to revise the EA, sign the FONSI, start preparing an EIS, or 
modify or stop considering the proposed action.
    (d) MDA will make the final EA and signed FONSI available on our 
public Web site.

10. Environmental Impact Statement (EIS)

    (a) Classes of activities that normally require an EIS (40 CFR 
1501.4) are: (1) Construction and operations of a major new deployment 
site or test range, and (2) development, testing and employment of a 
major new missile defense technology with unknown or potentially 
significant effects on the environment.
    (b) A draft and final EIS will include: (1) The purpose and need 
for the proposed action and reasonable alternatives (as specified in 40 
CFR 1502.13); (2) reasonable alternatives, including the preferred 
alternative and no-action alternative and designation of the preferred 
alternative (as specified in 40 CFR 1502.14); (3) the environment 
affected or created by the alternatives (as specified in 40 CFR 
1502.15); (4) the probable environmental impacts from alternatives 
including the proposed action and measures (if any) to minimize impacts 
(as specified in 40 CFR 1502.16); and (5) a list of the major preparers 
of the EIS (as specified in 40 CFR 1502.17). EIS scope and detail 
should be reasonably related to the scope and the probable 
environmental impacts of the proposed action and alternative actions 
(40 CFR part 1502).
    (c) Once MDA decides to prepare an EIS, we will start scoping (as 
specified in 40 CFR 1501.7). During scoping, participants help identify 
the range of actions, alternatives and impacts to consider (40 CFR 
1508.25). MDA will invite affected agencies and interested persons to 
help determine the significant issues and alternatives to be addressed. 
The scoping phase of the NEPA process, as part of project planning, 
will include identifying aspects of the proposal that may have a 
significant effect or involve controversy concerning environmental 
effects. Scoping will ensure the NEPA analyses are useful for the 
decision maker.
    (d) As soon as practical after deciding to prepare an EIS and 
before scoping, MDA will publish a notice of intent (NOI) to prepare an 
EIS in the FR (as specified in 40 CFR 1501.7). This NOI (as specified 
in 40 CFR 1508.22) will describe the purpose and need for the proposed 
action, and any reasonable alternatives and potential environmental 
impacts associated with the action that are available at this early 
stage of the NEPA process. Those impacts that tentatively are 
determined not to be significant and not warrant discussion in detail 
in the EIS may be identified. If a public scoping meeting will be held, 
the notice will state when and where. The NOI will identify the MDA 
point of contact who can supply more information about the action and 
to whom comments should be sent. There will normally be a public input 
period of 30 days from the date of publication of the NOI in the FR to 
allow other interested agencies and the public an opportunity to review 
and comment. Based on input received, MDA will determine if any 
additions or modifications to the schedule or scope of the EIS are 
appropriate. MDA will consider, in scoping the NEPA analysis and 
developing a draft EIS, the extent to which the greenhouse gas 
emissions caused by a proposed action should be estimated and 
evaluated.
    (e) Analyzing potential environmental impacts includes assessing 
the direct, indirect, and cumulative impacts that can reasonably be 
expected from taking the proposed action or reasonable alternatives. 
When there are direct or indirect effects on an aspect of the 
environment, then MDA must also consider cumulative effects. Cumulative 
effects are impacts on the environment resulting from the incremental 
impact of the action when added to other past, present, and reasonably 
foreseeable future actions. Actions by Federal and non-federal agencies 
and private parties must be included when considering cumulative 
effects (as specified in 40 CFR 1508.7).
    (f) MDA should coordinate preparing the EIS with other agencies 
when the action involves resources they manage or protect. MDA 
generally will invite those agencies with jurisdiction by law to 
participate as cooperating agencies. MDA may also invite them if they 
lack such jurisdiction, in addition to other agencies with special 
expertise, as cooperating agencies (40 CFR 1501.6 and 1508.5). Factors 
for determining whether to invite, decline, or end cooperating agency 
status are in Attachment 1 of the CEQ Memorandum for Heads of Federal 
Agencies: Cooperating Agencies in Implementing the Procedural 
Requirements of the National Environmental Policy Act (January 30, 
2002).

10.1 Draft Environmental Impact Statement (DEIS)

    (a) MDA will prepare a draft environmental impact statement (DEIS) 
(as specified in 40 CFR 1502.9) in the format recommended in the CEQ 
regulations at 40 CFR 1502.10 unless there is a compelling reason to 
use another format.
    (b) MDA will electronically file the DEIS with the Environmental 
Protection Agency (EPA) and request comments from any Federal agency 
that has jurisdiction by law, the public, native American tribes, or 
other interested Federal, state, and local agencies (as specified in 40 
CFR 1503.1). MDA will provide a minimum of 45 days for public comment 
on the DIES. The comment period will begin on the day of publication of 
the EPA-issued Notice of Availability (NOA) in the FR (40 CFR 1506.10).

10.2 Final Environmental Impact Statements (FEIS)

    After MDA internal approval, we will circulate the final 
environmental impact statement (FEIS) (as specified in 40 CFR 1502.19). 
MDA will transmit the FEIS to every person, organization, or agency 
from which we received substantive comments on the draft and file the 
FEIS electronically with the EPA (40 CFR 1506.9).

[[Page 26218]]

11. Record of Decision (ROD)

    (a) After filing the FEIS with the EPA, a ROD will be prepared (as 
specified in 40 CFR 1505.2) unless MDA announces that we are 
withdrawing the proposed action.
    (b) MDA will make the ROD available on the MDA public Web site. MDA 
will also make the ROD available to the public through the various 
methods outlined in 40 CFR 1506.6, as appropriate.
    (c) An action for which an EIS was approved will not start until: 
(1) 30 days after the EPA-issued notice of availability (NOA) that the 
final EIS was published in the FR; or (2) 90 days after the DEIS NOA 
was published in the FR by the EPA, whichever provides the public with 
the most notice.

12. Memorandum for Record (MFR)

    When MDA reviews actions covered in an existing EA or EIS that we 
prepared, we may write a memorandum for record (MFR) to document that 
review. When MDA is a cooperating agency in preparing an EIS, we may 
adopt the lead agency's EIS without recirculating the EIS as a draft or 
as a final EIS. MDA may do this when, after an independent review, we 
conclude and document in an MFR that the lead agency adequately 
addressed the adopting agency's comments and suggestions. Similarly, 
when MDA is a cooperating agency in preparing an EA, we may adopt the 
EA without recirculating the EA when, after an independent review, we 
conclude and document in an MFR that the lead agency adequately 
addressed the adopting agency's comments and suggestions (CEQ Guidance 
Memorandum for Heads of Federal Department and Agencies: Improving the 
Process for Preparing Efficient and Timely Environmental Reviews under 
the National Environmental Policy Act, March 6, 2012; 40 CFR 1506.3).

13. Administrative Record

    MDA must maintain the administrative record for the environmental 
analysis performed. The administrative record must be retained by MDA 
for seven years after completing the action, unless the action involves 
controversy concerning environmental effects or is of a nature that 
warrants keeping it longer. The administrative record includes all 
supporting documents and information used to make the decision. This 
administrative record should include, but is not limited to: (1) Maps 
and or documents relevant to developing an EA or EIS; (2) formal 
communication by a consulting or coordinating agency office; (3) 
studies and inventories of affected environmental resources; (4) 
correspondence with regulatory agencies; (5) correspondence with and 
comments from, private citizens, tribes, local governments, and other 
individuals and agencies contacted during public involvement; and (6) 
confirmation of publications and transcripts of any public hearing. MDA 
will prepare and maintain an index or table of contents for the 
administrative record.

14. Mitigation and Monitoring

    (a) MDA will indicate whether mitigation measures (as described in 
40 CFR 1508.20) will be implemented for the alternative selected in 
either the FONSI or ROD, what commitments MDA considered and selected, 
and who will be responsible for implementing, funding, and monitoring 
the mitigation measures.
    (b) Where possible and appropriate because of amount, MDA will 
include the cost of mitigation as a line item in the budget for a 
proposed project. Upon request, MDA will also make the results of 
mitigation monitoring available to the public.
    (c) MDA may ``mitigate to insignificance'' potentially significant 
environmental impacts found during preparation of an EA, instead of 
preparing an EIS. The FONSI for the EA will include these mitigation 
measures, which will be carried out as the project is implemented. If, 
for any reason, MDA later abandons or does not meet the mitigation 
commitments upon which the FONSI relied, we will prepare a supplemental 
environmental document before continuing the project. If potentially 
significant environmental impacts might result from any project 
revisions, MDA will prepare an EIS if we used an EA for the decision to 
proceed, or we will prepare a supplemental EIS, if we used an EIS for 
the decision to proceed.

15. Supplemental EAs or EISs

    (a) MDA will prepare a supplement to an EA or EIS in accordance 
with 40 CFR 1502.9(c), when there are substantial or significant new 
circumstances or information related to the proposed action, or to the 
environmental concerns of the proposed actions, which bear on the 
proposed action or its impacts. MDA may also prepare a supplement when 
the purposes of NEPA will be furthered by doing so.
    (b) MDA prepares supplemental documents following the same general 
process as the original EA or EIS. No new scoping is required for a 
supplemental EIS; however, we may choose to conduct scoping (40 CFR 
1502.9(c)(4)).
    (c) When a supplemental EA or EIS is prepared, MDA will issue a new 
FONSI or ROD as appropriate.

16. Cooperating Agencies

    When MDA is the lead agency (40 CFR 1501.5), we will invite Federal 
agencies with jurisdiction by law to serve as cooperating agencies. MDA 
may invite Federal, tribal, state and local agencies with special 
expertise to serve as cooperating agencies. The roles of lead and 
cooperating agencies are found in 40 CFR 1501.5, 1501.6, and 1508.5, 
and the definitions of jurisdiction by law and special expertise are 
found at 40 CFR 1508.15 and 1508.5.

17. Adoption of EA or EIS

    The MDA may adopt an EA or EIS, or portion thereof, prepared by 
another agency where the MDA proposed action is substantially the same 
as the action described in the EA, in accordance with CEQ Guidance 
Memorandum for Heads of Federal Departments and Agencies: Improving the 
Process for Preparing Efficient and Timely Environmental Reviews under 
the National Environmental Policy Act, March 6, 2012, or EIS, in 
accordance with 40 CFR 1506.3(b). MDA will independently review the EA 
or EIS and determine whether it is current, satisfies the requirements 
of NEPA, and covers the proposed action. If the actions covered by the 
original NEPA analysis and the MDA proposed action are substantially 
the same, and MDA was not a cooperating agency, then we will reissue 
the EA or EIS as a final document and prepare its own FONSI or ROD, as 
appropriate.

18. Incorporation by Reference

    MDA will incorporate material by reference to reduce paperwork and 
bulk. MDA will incorporate previous NEPA analyses or relevant material 
in an EA or EIS by citing and briefly describing the material, and 
ensuring that any material incorporated by reference will be made 
reasonably available for inspection by potentially interested persons 
within the time allowed for comment either in the EA, EIS, or on our 
Web site as specified in 40 CFR 1502.21.

19. Tiering

    MDA will use tiered environmental documents to eliminate repetitive 
discussions of the same issues and to focus on those issues relating to 
specific MDA actions (40 CFR 1502.20 and 1508.28). If MDA adopts 
another

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Federal agency's environmental document, we may also tier our 
subsequent MDA environmental documents from the adopted document.

20. Classified Actions

    (a) Classification of an action for national security does not 
relieve MDA from the requirements of NEPA. MDA will prepare, safeguard, 
and disseminate NEPA documents in accordance with MDA and DoD 
requirements for classified information (i.e., MDA Manual 5200.02-M 
``Information Security Program,'' DoD Manual 5200.01 ``DoD Information 
Security Program,'' or current issuance).
    (b) In accordance with DoD and MDA Security Policy, NEPA documents 
that include classified information/actions will be written so that the 
classified information/actions are included in separate appendix(es) so 
that the unclassified portions of the documents can be made available 
to the public.
    (c) When classified information is such an integral part of the 
analysis of a proposal that MDA cannot produce a meaningful 
unclassified NEPA analysis, the MDA proponent, in consultation with the 
appropriate environmental offices, will form a team to review the 
classified NEPA analysis. This team will include environmental 
professionals to ensure the consideration of environmental effects is 
consistent with the letter and intent of NEPA, including public 
participation requirements for unclassified aspects.

21. Actions Occurring on Host Installations or Ranges

    MDA as a tenant will work with the host agency/service to fulfill 
MDA and the host's implementing regulations (or procedures) and 
guidance in complying with NEPA and related Executive Orders. The 
specific requirements of the agency/service making a decision supported 
by the NEPA analysis and documentation will apply. If multiple agencies 
will use the NEPA analysis and documentation, then the process followed 
in developing it will comply with the most stringent requirement in the 
respective NEPA implementing procedures and regulations.

Appendix A

Abbreviations and Acronyms

ACM Asbestos-Containing Material
ANSI American National Standards Institute
BMDS Ballistic Missile Defense System
CATEX Categorical Exclusion
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
DEIS Draft Environmental Impact Statement
DPF Facilities, Military Construction, & Environmental Management 
Division
EA Environmental Assessment
EE Environmental Executive
EIS Environmental Impact Statement
E.O. Executive Order
EPA Environmental Protection Agency
FEIS Final Environmental Impact Assessment
FR Federal Register
FONSI Finding of No Significant Impact
IEEE Institute of Electrical and Electronics Engineers
LBP Lead-based paint
MDA Missile Defense Agency
MFR Memorandum for Record
NEPA National Environmental Policy Act
NOA Notice of Availability
NOI Notice of Intent
OSHA Occupational Safety and Health Administration
PCB Polychlorinated biphenyl
RCRA Resource Conservation and Recovery Act
REC Record of Environmental Consideration
ROD Record of Decision
SPCC Spill Prevention, Control and Countermeasure
U.S.C. United State Code

Appendix B

Categorical Exclusions (CATEXs)

    Actions categorically excluded in the absence of extraordinary 
circumstances are listed below.

CATEX List

    B-1. Normal personnel, fiscal or budgeting, and administrative 
activities and decisions including those involving military and 
civilian personnel (for example, recruiting, processing, paying, and 
recordkeeping).
    B-2. Preparing, revising, or adopting regulations, instructions, 
directives, or guidance documents including those that implement 
without substantial change the regulations, instructions, 
directives, or guidance documents from higher headquarters or other 
Federal agencies.
    B-3. Decreases, increases, relocation, and realignment of 
personnel into existing Federally-owned or commercially-leased space 
that does not involve a substantial change affecting the supporting 
infrastructure or use of space (e.g., no increase in traffic beyond 
the capacity of the supporting network to accommodate such an 
increase).
    B-4. Routine procurement of goods and services conducted in 
accordance with applicable procurement regulations, Executive 
Orders, and policies to support operations and infrastructure, 
including routine utility services and contracts.
    B-5. Administrative study efforts involving no commitment of 
resources other than personnel and funding allocations. If any of 
these study efforts result in proposals for further action, those 
proposals must be considered separately by an appropriate CATEX or 
NEPA analysis. Examples include, but are not limited to: Studies to 
further administrative, personnel-related, architectural, 
engineering, safety, security, siting, and facility audit 
activities.
    B-6. Studies, monitoring, data and sample collection, and 
information gathering that involve no permanent physical change to 
the environment. If any of these activities result in proposals for 
further action, those proposals must be considered by an appropriate 
CATEX or NEPA analysis. Examples include, but are not limited to:
    a. Surveys for threatened and endangered species, wildlife and 
wildlife habitat, historic properties and archeological sites; 
wetland delineations; minimal water, air, waste, material, and soil 
sampling (e.g., grab samples).
    b. Vulnerability, risk, and structural integrity assessments of 
infrastructure.
    c. Environmental Baseline Surveys or Environmental Condition of 
Property Surveys.
    d. Topographical surveying and mapping that does not require 
cutting and/or removal of trees.
    B-7. Sampling, well drilling and installation, analytical 
testing, site preparation, and minimally intrusive physical testing. 
These activities could involve minor clearing and grubbing or 
movement of heavy equipment such as drill rigs. If any of these 
actions result in proposals for further actions, those proposals 
must be considered by an appropriate CATEX or NEPA analysis. 
Examples include, but are not limited to:
    a. Sampling for asbestos-containing materials (ACMs), 
polychlorinated biphenyls (PCBs), and lead-based paint (LBP).
    b. Topographical surveys and surveys for unexploded ordnance.
    c. Minimally-intrusive geological, geophysical surveys, geo-
technical activities, and seismic studies.
    d. Minimally-intrusive sampling to determine if hazardous 
wastes, contaminants, pollutants, or special hazards are present.
    e. Ground water monitoring wells, subsurface soil sampling, and 
soil borings (REC required).
    B-8. Immediate response to the release or discharge of oil or 
hazardous materials in accordance with an approved Spill Prevention, 
Control, and Countermeasure (SPCC) Plan or Spill Contingency Plan, 
or that is otherwise consistent with the requirements of the EPA 
National Contingency Plan.
    B-9. Temporary use of transportable power generators or 
operational support equipment when located in a previously disturbed 
area and when operated in compliance with applicable regulatory 
requirements.
    B-10. Routine movement, handling, use, and distribution of 
materials, including hazardous materials or wastes moved, handled, 
or distributed in accordance with applicable regulations, such as 
the Resource Conservation and Recovery Act (RCRA), Occupational 
Safety and Health Administration (OSHA), and Hazardous Materials 
Transportation Act (HMTA).
    B-11. Routine movement of mobile test assets (such as ships, 
aircraft, mobile sensors, telemetry, etc.) for routine missile 
defense test and evaluation; repair, overhaul or maintenance; or 
home port reassignments where no new support facilities are 
required.
    B-12. Activities and operations to be conducted in an existing 
non-historic

[[Page 26220]]

structure which are within the scope of and are compatible with the 
present functional use of the building, will not cause a substantial 
increase in waste discharged to the environment, will not result in 
substantially different waste discharges from current or previous 
activities, and emissions will remain within established permit 
limits, if any.
    B-13. Acquisition, installation, modification, routine repair 
and replacement, and operation of utility (e.g., water, sewer, and 
electrical) and communication systems, mobile antennas, data 
processing cable and similar electronic equipment that use existing 
rights-of-way, easements, distribution systems, facilities, or 
previously disturbed land (REC required).
    B-14. Acquisition, installation or minor relocation, operation 
and maintenance, or evaluation of physical security devices or 
controls to protect human or animal life and to enhance the physical 
security of existing critical assets in compliance with applicable 
Federal, tribal, state and local requirements to protect the 
environment. Examples include, but are not limited to:
    a. Motion detection systems.
    b. Raptor electrocution prevention devices.
    c. Lighting.
    d. Remote video surveillance systems.
    e. Access controls.
    f. Physical barriers, fences, grating, on or adjacent to 
existing facilities (REC required).
    B-15. Maintenance of archaeological, historical, and endangered 
or threatened species avoidance markers, fencing, and signs.
    B-16. Road or trail construction and repair on existing rights-
of-ways or in previously disturbed areas which do not result in a 
change in functional use. Runoff, erosion, and sedimentation are 
controlled through implementation of best management practices (REC 
required).
    B-17. Routine repair and maintenance of buildings, vessels, 
aircraft, grounds, and other facilities and equipment which do not 
result in a change in functional use or a significant impact on a 
historically significant element or setting. Examples include, but 
are not limited to: Repair of roofs, doors, windows, or fixtures, 
localized pest management, and minor erosion control measures.
    B-18. New construction or equipment installation or alterations 
(interior and exterior) to or construction of an addition to an 
existing structure that is similar to existing land use if the area 
to be disturbed has no more than 5.0 cumulative acres of new surface 
disturbance. The following conditions must be met:
    a. The structure and proposed use are compatible with applicable 
Federal, tribal, state, and local planning and zoning standards.
    b. The site and scale of construction or improvement is 
consistent with those of existing, adjacent, or nearby buildings.
    c. The construction or improvement will not result in uses that 
exceed existing support infrastructure capacities (roads, sewer, 
water, parking, etc.).
    This does not include construction of facilities for the 
transportation, distribution, use, storage, treatment, and disposal 
of solid waste or hazardous waste (REC required).
    B-19. Demolition of non-historic buildings, structures, or other 
improvements and repairs that result in disposal of debris there-
from, or removal of a part thereof for disposal, in accordance with 
applicable regulations, including those regulations applying to 
removal of ACM, PCBs, LBP, and other special hazard items (REC 
required).
    B-20. Research, testing, and operations conducted at existing 
facilities and plants or laboratories (including contractor-operated 
laboratories and plants) and in compliance with all applicable 
safety, environmental, and natural conservation laws. Examples 
include, but are not limited to: Wind tunnels, high-energy lasers, 
remote-sensing instruments, vacuum chambers, high-altitude simulator 
facilities, and propellant testing facilities.
    B-21. Routine installation and use of radars, telemetry systems, 
communications equipment, and other essentially similar facilities 
and equipment within a launch facility, mobile platform, military 
installation, training area, or previously disturbed area that 
conform to current American National Standards Institute/Institute 
of Electrical and Electronics Engineers (ANSI/IEEE) guidelines for 
maximum permissible exposure to electromagnetic fields (REC 
required).

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[FR Doc. 2014-10342 Filed 5-6-14; 8:45 am]
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