[Federal Register Volume 84, Number 234 (Thursday, December 5, 2019)]
[Rules and Regulations]
[Pages 66586-66591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26093]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 775
[Docket No. USN-2018-HQ-0001]
RIN 0703-AB01
Policies and Responsibilities for Implementation of the National
Environmental Policy Act Within the Department of the Navy
AGENCY: Department of the Navy, Department of Defense.
ACTION: Final rule.
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SUMMARY: The Department of the Navy (DON) revises portions of its
internal regulations that establish the responsibilities and procedures
for complying with the National Environmental Policy Act (NEPA). An
agency may determine that certain classes of actions normally do not
individually or cumulatively have significant environmental impacts and
therefore do not require further review under NEPA. Establishing these
categories of activities, called categorical exclusions (CATEXs), in
the agency's NEPA implementing procedures is a way to reduce
unnecessary paperwork and delay. This revision clarifies what types of
activities fall under CATEXs and normally do not require additional
NEPA analysis.
DATES: Effective January 6, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. J. Dan Cecchini, Office of the
Deputy Assistant Secretary of the Navy (Environment), 703-614-1173.
SUPPLEMENTARY INFORMATION:
Process Used by the DON in the Development of the Proposed Revisions
In 2015, the Office of the Deputy Assistant Secretary of the Navy
for Environment directed a review of 32 CFR 775.6(e) and (f), which
address the DON's procedures for applying CATEXs. A review panel
(hereinafter ``panel'') was formed to provide administrative support
and expertise to inform the efforts. The professionals comprising the
panel were current DON environmental practitioners with numerous years
of NEPA planning and compliance experience, including the preparation
of environmental documentation such as CATEX decision documents,
environmental assessments (EAs), environmental impact statements
(EISs), findings of no significant impact, and records of decision. The
panel was supported by a legal working group comprising experienced
environmental law attorneys from the DON's Office of the General
Counsel and Office of the Judge Advocate General with advanced
education and experience providing legal and policy advice to Federal
agency decision makers, managers, and practitioners on environmental
planning and compliance responsibilities.
The panel reviewed and analyzed the supporting rationale, scope,
applicability, and wording of each existing CATEX and extraordinary
circumstance set forth in 32 CFR 775.6(e) and (f). The panel developed
and deliberated on each proposed new CATEX and extraordinary
circumstance
[[Page 66587]]
change, balancing the resulting increase in administrative efficiency
in NEPA implementation and compliance against the risk of
misinterpretation and misapplication. During that process, numerous
environmental professionals, representing various constituencies within
the DON, supported the panel's review and participated in meetings and
conference calls over the course of 18 months to reach agreement on the
proposed rule (84 FR 12170).
In accordance with Council on Environmental Quality (CEQ)
regulations and CEQ's 2010 CATEX guidance, ``Establishing, Applying,
and Revising Categorical Exclusions under the National Environmental
Policy Act,'' the DON substantiated the proposed new and revised CATEXs
by reviewing EA and EIS analyses to identify the environmental effects
of previously implemented actions; benchmarking other Federal agencies'
experiences; and leveraging the expertise, experience, and judgment of
DON professional staff. The panel noted that other Department of
Defense (DoD) entities and numerous other Federal agencies have CATEXs
for activities that are similar in nature, scope, and impact on the
human environment as those undertaken by the DON. The panel reviewed
many of those CATEXs before proposing changes to 32 CFR 775.6(e) and
(f).
In addition, the panel recognized that all Federal agencies,
including the DoD as a whole, with very few limitations, must meet the
same requirements to consider environmental issues in decision making
with an ultimate goal to protect the environment. Based on experience
with, or on behalf of, other Federal agencies, the panel determined
that the characteristics of many of the DON's activities were not
significantly different from those performed by other Federal agencies,
including other entities within the DoD.
The CEQ was integral in the process to ensure that proposed changes
to the DON's CATEXs meet NEPA requirements. The DON provided the CEQ
with proposed draft changes and justifications for each proposed change
to 32 CFR 775.6(e) and (f). Many of the changes that the DON is
proposing are administrative in nature to clarify application of a
particular CATEX. On July 7, 2017, the CEQ concurred with the DON
proceeding to rulemaking on these proposed changes.
Summary of Comments and Responses
The DON published the proposed rule (84 FR 12170) on April 1, 2019,
and received comments regarding the rule until May 1, 2019. In total,
the DON received five (5) comment submissions on the proposed rule from
members of the general public, the Natural Resources Defense Council
(NRDC), and Buchalter law firm.
In general, the comments received could be placed into one of four
(4) categories: (1) Comments beyond the scope of the proposed rule; (2)
comments regarding the introductory language change for ``extraordinary
circumstances'' under 32 CFR 775.6(e); (3) comments regarding how the
proposed change to 32 CFR 775.6 may interact with the Marine Mammal
Protection Act (MMPA); and, (4) comments regarding proposed CATEX #47,
which allows for the ``modernization (upgrade) of range and training
areas, systems, and associated components . . . that support current
testing and training levels and requirements.''
Comments Beyond the Scope of the Proposed Rule
The DON received comments expressing disagreement and lack of
support for general naval operations, as well as dissatisfaction with
Federal protections for marine mammals. The DON also received feedback
regarding existing CATEXs, specifically CATEXs #44 and #45 (now
numbered #43 and #44 in this final rule). The proposed rule did not
change or alter these CATEXs. These comments were deemed to be outside
the scope of this rulemaking and are therefore not addressed further.
Modifications to 32 CFR 775.6(e)
The DON received comments expressing concern that the proposed
modifications to the text of 32 CFR 775.6(e) would ``eliminate'' the
extraordinary circumstances exception to the use of a CATEX,
contravening CEQ guidance. The DON stresses that the proposed changes
to the criteria disallowing the application of a listed CATEX
(hereafter ``extraordinary circumstances'') do not eliminate the
requirement to demonstrate that an action has no significant effect on
the human environment, either individually or cumulatively, prior to
applying a CATEX. Rather, the rulemaking provides discretion in
circumstances where one or more extraordinary circumstances are present
but in which only negligible or insignificant impacts are expected.
Under this rulemaking, the decision maker may determine that the CATEX
is appropriate, notwithstanding the presence of one or more
extraordinary circumstances, based on an evaluation of the action's
effects in terms of context and intensity. This change aligns with
CEQ's 2010 CATEX guidance (page 6) which allows for the consideration
of both ``the presence of the factor and the impact on that factor.''
Further, this language mirrors the extraordinary circumstances
introductory language already contained in similar NEPA regulations of
the U.S. Forest Service and the National Oceanic and Atmospheric
Administration (NOAA)'s NEPA manual.
Some commenters also expressed concern that the modifications to 32
CFR 775.6(e) could lead to environmental degradation if the DON sought
to apply a CATEX under 32 CFR 775.6(f) to an action which on its face
appeared to have negligible impacts, but cumulatively or over time
could have more substantial negative environmental impacts. Again,
consistent with CEQ guidance, the DON's CATEXs can only be applied to
actions that, both individually and cumulatively, have no significant
impacts on the human environment. Under the new 32 CFR 775.6(e)(2), if
a decision is made to apply a CATEX to a proposed action that is more
than administrative in nature, the decision must be formally documented
consistent with existing Navy and Marine Corps policy.
Some commenters were concerned that the new language proposed under
32 CFR 775.6(e) would allow the DON to apply CATEXs for ``routine
training and evaluation'' and ``routine military training'' (existing
CATEXs renumbered as #43 and #44 in this final rule) to virtually all
testing and training activities, thereby circumventing Federal law. The
language, however, does not remove the requirement to demonstrate that
such training and testing have no significant impacts on the human
environment either individually or cumulatively. Moreover, it does not
negate the DON's responsibility to obtain legally required permits and/
or approvals from regulatory agencies outside of the DON, many of which
have their own NEPA review obligation. Finally, if a decision is made
to apply a CATEX to a proposed action even though one or more
extraordinary circumstances are present, a copy of the executed CATEX
decision document must be forwarded to headquarters for review before
the action can be implemented. These decisions then face a higher level
of scrutiny which ensures the appropriate level of NEPA analysis is
completed.
To address the above comments regarding changes to 32 CFR 775.6(e),
the DON will adopt the following language under 32 CFR 775.6(e) to
clarify its position that application of a CATEX is inappropriate
unless the
[[Page 66588]]
action is determined not to have a significant impact on the human
environment either individually or cumulatively: ``A categorical
exclusion (CATEX), as defined and listed in this regulation and 40 CFR
1508.4, may be used to exclude a proposed action from further analysis.
. . Before applying a CATEX, the decision maker must consider whether
the proposed action would individually or cumulatively: . . .''
(emphasis added).
Further, in response to comments, the DON will also remove the
sunset provision previously included in the proposed rule for actions
falling under 32 CFR 775.6(e)(1)(v)(A). The proposed rule terminated
the requirement to forward CATEXs to headquarters for actions where one
or more extraordinary circumstances were present after two years from
the date of this final rule. Under the final rule, CATEXs for these
actions will be forwarded to the headquarters level for review with no
sunset provision. The purpose of this change is to ensure the highest
level of scrutiny is dedicated to those actions which impact federally
protected species.
Finally, certain commenters took issue with the DON's word choice.
Examples of disputed wording include the use of ``context and
intensity'' in 32 CFR 775.6(e) and ``scientifically controversial'' in
32 CFR 775.6(e)(1)(ii). The consideration of ``context and intensity''
of an action contemplated for a CATEX where one or more extraordinary
circumstances is present is simply meant to provide guidance to
decision makers in determining whether an action has the potential for
significant effects under 40 CFR 1508.4. As noted previously, the
consideration of ``context and intensity'' when determining whether a
CATEX is appropriate aligns with CEQ's 2010 CATEX guidance. The term
``scientifically controversial'' is in the DON's existing NEPA
regulations and has not been altered by this rulemaking.
Interaction With the MMPA
The DON also received comments expressing concern that the DON
would rely on the language changes under 32 CFR 775.6 to circumvent
certain procedures, approvals, or authorizations required under the
MMPA or other environmental statutes. Changes to the DON's CATEX
regulations cannot negate the DON's independent legal responsibilities
under other environmental statutes. Rather, the regulatory changes
proffered by the DON in this rulemaking more clearly delineate the
interplay between the DON NEPA regulations and the MMPA by linking the
trigger for extraordinary circumstances to the specific regulatory
threshold language of the MMPA. The DON has added language to 32 CFR
775.6(e)(1)(v)(A) to clarify a CATEX will not be used if potential
impacts would rise to the level of requiring an Incidental Take
Authorization under the MMPA, irrespective of whether an actual
authorization is procured unless the DON determines, in accordance
Sec. 775.6(e), and after considering context and intensity, that the
proposed action would not have significant environmental effects.
Further, the language change to 32 CFR 775.6 in no way affects
policy external to the DON. The proposed language does not contravene
National Marine Fisheries Service (NMFS) authorization requirements or
NOAA NEPA requirements. That is, the DON will still be required to seek
MMPA Incidental Take Authorizations from NMFS for activities which
trigger NMFS jurisdiction and NOAA's issuance of those authorizations
must still comply with its NEPA procedures. The DON will work closely
with NMFS to ensure the appropriate level of NEPA analysis is completed
to satisfy the NEPA requirements for both agencies.
CATEX #47 (Modernization (Upgrade) of Range and Training Areas,
Systems, and Components That Support Current Testing and Training
Levels and Requirements)
One commenter was concerned that this proposed new CATEX could
enable ``later increased and potentially different uses'' of DON ranges
that would never undergo NEPA analysis. This CATEX covers the
modernization (upgrade) of range and training areas, systems, and
associated components that support current (emphasis added) training
and testing levels and requirements. It would be used for activities
such as replacing worn out infrastructure and equipment. The language
of this CATEX cannot be used to satisfy NEPA obligations for increased
or potentially different uses of the range or training area that would
result in additional environmental impacts. No changes were made to the
text of the final rule as a result of this comment.
Miscellaneous Changes
In accordance with the comments section noted above, the DON makes
minor edits to the wording of its proposed rule. The DON also makes
several minor edits to improve the clarity, grammar, consistency and
brevity of the regulations overall including a change which deletes
language from CATEX #22 that contradicts DON's changes to extraordinary
circumstances criteria regarding how to account for adverse effects on
historic properties.
Thereafter, for the reasons given in the proposed rule and in this
document, the DON adopts the proposed rule as a final rule, with the
changes discussed in this document.
Authority for This Regulatory Action
Authorities for this rule are 5 U.S.C. 301, NEPA, and 40 CFR parts
1500-1508. Under 5 U.S.C. 301, the head of a military department may
prescribe regulations for the government of the department, the conduct
of its employees, the distribution and performance of its business, and
the custody, use, and preservation of its records, papers, and
property. As noted above, NEPA requires Federal agencies to analyze
their proposed actions to determine if they could have significant
environmental effects. The CEQ implementing regulations (40 CFR 1507.3)
require Federal agencies to adopt supplemental NEPA implementing
procedures, including agency-specific CATEXs, either in the form of
agency policy or a regulation, and to provide opportunity for public
review prior to adoption.
Regulatory Reviews
Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, it has been reviewed by the Office
of Management and Budget (OMB).
Congressional Review Act, 5 U.S.C. 804(2)
Under the Congressional Review Act, a major rule may not take
effect until at least 60 days after submission to Congress of a report
regarding the rule. A major rule is one that would have an annual
effect on the economy of $100
[[Page 66589]]
million or more; or a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets. This final rule is not a
major rule because it does not reach the economic threshold or have
other impacts as required under the Congressional Review Act.
Executive Order 13771: Reducing Regulation and Controlling Regulatory
Costs
This final rule is not subject to the requirements of Executive
Order 13771 (82 FR 9339, February 3, 2017) because it is related to
agency organization, management, or personnel.
National Environmental Policy Act
The CEQ does not direct agencies to prepare a NEPA analysis before
establishing agency procedures that supplement the CEQ regulations for
implementing NEPA. DON NEPA procedures assist in the fulfillment of its
responsibilities under NEPA, but are not final determinations of what
level of NEPA analysis is required for particular actions. The
requirements for establishing agency NEPA procedures are set forth at
40 CFR 1505.1 and 1507.3. The determination that establishing agency
NEPA procedures does not require NEPA analysis and documentation has
been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d
962, 972-73 (S.D. III. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir.
2000).
Paperwork Reduction Act
This regulatory action does not contain a collection-of-information
requirement subject to review and approval by the OMB under the
Paperwork Reduction Act.
Regulatory Flexibility Act
The DON has determined that this action is not subject to the
relevant provisions of the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)).
Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This rule does not impose any mandates on small
entities. This action addresses the DON's internal procedures for
implementing the procedural requirements of NEPA.
Executive Order 13132: Federalism
The DON has determined that this action does not contain policies
with federalism or ``takings'' implications as those terms are defined
in Executive Orders 13132 and 12630, respectively. This action does not
have federalism implications. It will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. This action
contains no Federal mandates for state and local governments and does
not impose any enforceable duties on state and local governments. This
action addresses only internal DON procedures for implementing NEPA.
List of Subjects in 32 CFR Part 775
Environmental impact statements.
Accordingly, the DON amends 32 CFR part 775 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. Revise the heading for part 775 to read as set forth above.
0
3. Amend Sec. 775.6 by revising paragraphs (e) and (f) as follows:
Sec. 775.6 Planning considerations.
* * * * *
(e) A categorical exclusion (CATEX), as defined and listed in this
part and 40 CFR 1508.4, may be used to satisfy NEPA, eliminating the
need for an EA or an EIS. Extraordinary circumstances are those
circumstances for which the DON has determined that further
environmental analysis may be required because an action normally
eligible for a CATEX may have significant environmental effects. The
presence of one or more of the extraordinary circumstances listed in
paragraph (e)(1) of this section does not automatically preclude the
application of a CATEX. A determination of whether a CATEX is
appropriate for an action, even if one or more extraordinary
circumstances are present, should focus on the action's potential
effects and consider the environmental significance of those effects in
terms of both context (consideration of the affected region, interests,
and resources) and intensity (severity of impacts).
(1) Before applying a CATEX, the decision maker must consider
whether the proposed action would individually or cumulatively:
(i) Adversely affect public health or safety;
(ii) Involve effects on the human environment that are highly
uncertain, involve unique or unknown risks, or which are scientifically
controversial;
(iii) Establish precedents or make decisions in principle for
future actions that have the potential for significant impacts;
(iv) Threaten a violation of Federal, State, or local environmental
laws applicable to the DON; or
(v) Involve an action that may:
(A) Have more than an insignificant or discountable effect on
federally protected species under the Endangered Species Act or have
impacts that would rise to the level of requiring an Incidental Take
Authorization under the Marine Mammal Protection Act irrespective of
whether one is procured;
(B) Have an adverse effect on coral reefs or on federally
designated wilderness areas, wildlife refuges, marine sanctuaries and
monuments, or parklands;
(C) Adversely affect the size, function, or biological value of
wetlands and is not covered by a general (nationwide, regional, or
state) permit;
(D) Have an adverse effect on archaeological resources or resources
listed or determined to be eligible for listing on the National
Register of Historic Places (including, but not limited to, ships,
aircraft, vessels, and equipment) where compliance with Section 106 of
the National Historic Preservation Act has not been resolved through an
agreement executed between the DON and the appropriate historic
preservation office and other appropriate consulting parties; or
(E) Result in an uncontrolled or unpermitted release of hazardous
substances or require a conformity determination under standards in 40
CFR part 93, subpart B (the Clean Air Act General Conformity Rule).
(2) If a decision is made to apply a CATEX to a proposed action
that is more than administrative in nature, the decision must be
formally documented per existing Navy and Marine Corps policy. For
actions with a documented CATEX where one or more extraordinary
circumstances are present, a copy of the executed CATEX decision
document (e.g., Record of CATEX or Decision Memorandum) must be
[[Page 66590]]
forwarded for review to Navy Headquarters or Marine Corps Headquarters,
as appropriate, before the action is implemented. With the exception of
actions that fall under paragraph (e)(1)(v)(A) of this section, the
requirement to send the documented CATEX to headquarters for review
will end on January 6, 2022.
(f) Subject to the criteria in paragraph (e) of this section, 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;
(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, ranges, and equipment associated with existing
operations and activities (e.g., localized pest management activities,
minor erosion control measures, painting, refitting, general building/
structural repair, landscaping, or grounds maintenance);
(9) Training of an administrative or classroom nature;
(10) Routine personnel actions;
(11) Routine movement of mobile assets (such as ships, submarines,
aircraft, and ground assets for repair, overhaul, dismantling,
disposal, homeporting, home basing, temporary reassignments; and
training, testing, or scientific research) 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 and welfare activities;
(14) Alterations of and additions to existing buildings,
facilities, and systems (e.g., structures, roads, runways, vessels,
aircraft, or equipment) when the environmental effects will remain
substantially the same and the use is consistent with applicable
regulations;
(15) Routine movement, handling, and distribution of materials,
including hazardous materials and wastes that are moved, handled, or
distributed in accordance with applicable regulations;
(16) 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;
(17) 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);
(18) 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;
(19) 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;
(20) 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;
(21) Decommissioning, disposal, or transfer of naval vessels,
aircraft, vehicles, and equipment when conducted in accordance with
applicable regulations, including those regulations applying to removal
of hazardous materials;
(22) 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;
(23) 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;
(24) 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);
(25) Transfer of real property from the DON to another military
department or to another Federal agency;
(26) Receipt of property from another Federal agency when there is
no anticipated or proposed substantial change in land use;
(27) Minor land acquisitions or disposals where anticipated or
proposed land use is similar to existing land use and zoning, both in
type and intensity;
(28) Disposal of excess easement interests to the underlying fee
owner;
(29) Initial real estate in grants and out grants involving
existing facilities or land with no significant change in use (e.g.,
leasing of federally owned or privately owned housing or office space,
and agricultural out leases);
(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 establish time
periods with no significant change in land use;
(32) 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;
(33) New construction that is similar to or compatible with
existing land use (i.e., site and scale of construction are consistent
with those of existing adjacent or nearby facilities) and, when
completed, the use or operation of which complies with existing
regulatory requirements (e.g., a building within a
[[Page 66591]]
cantonment area with associated discharges and runoff within existing
handling capacities). The test for whether this CATEX can be applied
should focus on whether the proposed action generally fits within the
designated land use of the proposed site;
(34) 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;
(35) Acquisition, installation, modernization, repair, or operation
of utility (including, but not limited to, water, sewer, and
electrical) and communication systems (including, but not limited to,
data processing cable and similar electronic equipment) that use
existing rights of way, easements, distribution systems, and
facilities;
(36) Decisions to close facilities, decommission equipment, or
temporarily discontinue use of facilities or equipment, where the
facility or equipment is not used to prevent or control environmental
impacts;
(37) Maintenance dredging and debris disposal where no new depths
are required, applicable permits are secured, and disposal will be at
an approved disposal site;
(38) 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);
(39) Pre-lease upland exploration activities for oil, gas, or
geothermal reserves, (e.g., geophysical surveys);
(40) 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);
(41) Reintroduction of endemic or native species (other than
endangered or threatened species) into their historic habitat when no
substantial site preparation is involved;
(42) Temporary closure of public access to DON property to protect
human or animal life;
(43) 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;
(44) 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;
(45) Natural resources management actions undertaken or permitted
pursuant to agreement with or subject to regulation by Federal, state,
or local organizations having management responsibility and authority
over the natural resources in question, including, but not limited to,
prescribed burning, invasive species actions, timber harvesting, and
hunting and fishing during seasons established by state authorities
pursuant to their state fish and game management laws. The natural
resources management actions must be consistent with the overall
management approach of the property as documented in an Integrated
Natural Resources Management Plan (INRMP) or other applicable natural
resources management plan;
(46) Minor repairs in response to wildfires, floods, earthquakes,
landslides, or severe weather events that threaten public health or
safety, security, property, or natural and cultural resources, and that
are necessary to repair or improve lands unlikely to recover to a
management-approved condition (i.e., the previous state) without
intervention. Covered activities must be completed within one year
following the event and cannot include the construction of new
permanent roads or other new permanent infrastructure. Such activities
include, but are not limited to: Repair of existing essential erosion
control structures or installation of temporary erosion controls;
repair of electric power transmission infrastructure; replacement or
repair of storm water conveyance structures, roads, trails, fences, and
minor facilities; revegetation; construction of protection fences; and
removal of hazard trees, rocks, soil, and other mobile debris from, on,
or along roads, trails, or streams;
(47) Modernization (upgrade) of range and training areas, systems,
and associated components (including, but not limited to, targets,
lifters, and range control systems) that support current testing and
training levels and requirements. Covered actions do not include those
involving a substantial change in the type or tempo of operation, or
the nature of the range (i.e., creating an impact area in an area where
munitions had not been previously used);
(48) Revisions or updates to INRMPs that do not involve
substantially new or different land use or natural resources management
activities and for which an EA or EIS was previously prepared that does
not require supplementation pursuant to 40 CFR 1502.9(c)(1); and
(49) DON actions that occur on another Military Service's property
where the action qualifies for a CATEX of that Service, or for actions
on property designated as a Joint Base or Joint Region that would
qualify for a CATEX of any of the Services included as part of the
Joint Base or Joint Region. If the DON action proponent chooses to use
another Service's CATEX to cover a proposed action, the DON must obtain
written confirmation the other Service does not object to using its
CATEX to cover the DON action. The DON official making the CATEX
determination must ensure the application of the CATEX is appropriate
and that the DON's proposed action was of a type contemplated when the
CATEX was established by the other Service. Use of this CATEX requires
preparation of a Record of CATEX or Decision Memorandum.
Dated: November 27, 2019.
D.J. Antenucci,
Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register
Liaison Officer.
[FR Doc. 2019-26093 Filed 12-4-19; 8:45 am]
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