[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Proposed Rules]
[Pages 43616-43629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18279]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1216
[Notice (11-069)]
RIN 2700-AD71
Procedures for Implementing the National Environmental Policy Act
AGENCY: National Aeronautics and Space Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Aeronautics and Space Administration (NASA)
hereby gives notice that it is proposing revised policy and procedures
for implementing the National Environmental Policy Act of 1969 (NEPA)
and the Council on Environmental Quality's (CEQ) Code of Federal
Regulations (CFR). This proposed rule would replace procedures
contained in NASA's current regulation, Procedures for Implementing the
National Environmental Policy Act. The revision is necessary to clarify
and update the current regulation. Since the previous major update of
NASA's NEPA regulation in 1988, a number of Executive Orders have
streamlined the Federal Government through decentralization, reduction
and simplification of regulations, and management of risk. This
proposed rule strives to meet the spirit of these Executive Orders,
which are included in the section entitled Procedural Requirements
herein.
DATES: Submit comments on or before September 19, 2011.
ADDRESSES: Comments can be submitted by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the online instructions for submitting comments electronically.
Comments may be entered directly on the Web site. Electronic files may
be submitted to this Web site.
2. Mail comments to: NASA Rulemaking Comments, Environmental
Management Division, Suite 5B11, 300 E Street, SW., Washington, DC
20546. Because security screening may delay mail sent through the U.S.
Postal Service, NASA encourages electronic submittal of comments.
FOR FURTHER INFORMATION CONTACT: For general information about NASA's
NEPA process, readers are directed to the NASA NEPA Portal and NEPA
Library at http://www.nasa.gov/green/nepa/. Questions may be directed
to Tina Borghild Norwood, NASA NEPA Manager, at (202) 358-7324, or via
e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Comments: Before including your address,
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment,
including your personal identifying information, may be made publicly
available at any time. While you can ask us in your comment to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Background
This proposed rule revises policies and responsibilities for
assessing the effects of NASA's actions in accordance with NEPA
(revising the current regulation at 14 CFR 1216.3). The last major
revision of this regulation was
[[Page 43617]]
previously published in 53 FR 9761 on March 25, 1988. Since that time,
understanding and implementation of NEPA has matured, and initiatives
such as the National Performance Review have streamlined the Federal
Government through decentralization, reduction, and simplification of
regulations.
Introduction
NASA is amending its procedures for implementing the requirements
of NEPA, 42 U.S.C. 4321-4347. The proposed amendments include: (1)
Consolidating and standardizing the procedural provisions of the
Agency's environmental review process under NEPA; (2) clarifying the
general procedures associated with categorical exclusions (CatExs),
consolidating the categories of actions subject to categorical
exclusion, and amending existing and adding new CatExs; (3) adding
extraordinary circumstances as factors which limit the applicability of
CatExs; (4) consolidating and amending the actions that generally
require an EIS or Environmental Assessment (EA); and (5) incorporating
other proposed revisions consistent with the CEQ regulations.
These proposed regulations, like NASA's existing NEPA regulations,
are a supplement to the CEQ regulations implementing NEPA. These
proposed regulations were drafted with the objective of minimizing
repetition of requirements already contained in the CEQ regulations and
with the understanding that these NASA-specific regulations would be
applied with (and be bounded by) the CEQ regulations. The terminology
used in this Preamble and the proposed regulations include many words
and phrases that are specifically defined in either NEPA or the CEQ
regulations. Many of these definitions can be found in part 1508 of the
CEQ regulations (40 CFR part 1508).
Revised Categorical Exclusions
As part of this rulemaking, NASA is amending existing and adding
new categories of actions that are eligible for categorical exclusion
and proposing to add generally applicable extraordinary circumstances
to bound the use of all NASA categorical exclusions. Consistent with
CEQ regulations, Sec. 1216.304 of the proposed rule defines
``categorical exclusion'' to mean ``categories of agency actions with
no individually or cumulatively significant effect on the human
environment.'' Some of the new CatExs are similar to the CatExs of
other Federal agencies and reflect NASA's experience with similar
factual circumstances. Other new CatExs are more specific to NASA and
reflect NASA's past experience with similar factual circumstances,
which were considered by NASA's environmental professionals when
applying NASA's current NEPA process, and which have been found,
through monitoring, to have no significant impacts on the ``human
environment'' (as that term is broadly defined in CEQ regulations at 40
CFR 1508.4).
The rationale supporting the amended and new CatExs and
extraordinary circumstances is summarized herein. The CEQ regulations
state that Federal agencies must implement NEPA procedures, in part to
``reduce paperwork and the accumulation of extraneous background data
and to emphasize real environmental issues and alternatives.'' (40 CFR
1500.2(b)). NASA believes that amending current and identifying new
CatExs meets the intent of this NEPA policy. For ease of comparison,
the current NASA CatExs (adopted in 1988) are as follows:
(1) Research and Development (R&D) or Space Flight, Control, and
Data Communications (SFCDC) activities in space science (e.g., physics
and astronomy research and analysis, planetary exploration mission
operations and data analysis) other than specific spacecraft
development and flight projects.
(2) R&D activities in space and terrestrial applications (e.g.,
resource observations, applied research and data analysis, technology
utilization) other than specific spacecraft development and flight
projects.
(3) R&D activities in aeronautics and space technology and energy
technology applications (e.g., research and technology base, systems
technology programs) other than experimental projects.
(4) R&D (or SFCDC) activities in space transportation systems
engineering and scientific and technical support operations, routine
transportation operations, and advanced studies.
(5) R&D (or SFCDC) activities in space tracking and data systems.
(6) Facility planning and design (funding).
(7) Minor construction of new facilities, including rehabilitation,
modification, and repair.
(8) Continuing operations of a NASA installation at a level of
effort, or altered operations, provided the alterations induce only
social and/or economic effects, but no natural or physical
environmental effects.
For proposed Agency actions that do not clearly require an EIS or
EA, NASA uses a Record of Environmental Consideration (REC) to record:
(1) The fact that a proposed action has been reviewed for environmental
impacts and (2) the level of NEPA documentation required for the
proposed action. RECs typically cite an applicable CatEx. The RECs
cited in this preamble provide examples of past NASA activities that
support the proposed CatEx in that the activities were monitored and
did not create environmental effects.
Where a new CatEx is proposed and NASA relies on previous RECs,
these RECs are available for review in the NASA NEPA Library on the
NASA NEPA Web site at http://www.nasa.gov/green/nepa/index.html. The
public portal also includes links to other relevant NASA environmental
policies and practices. For example, NASA monitors actions while they
are being performed and after they are completed to ensure they have
caused no significant environmental effects. Such monitoring is
included as part of the NASA Environmental Management System (EMS).
NASA also utilizes an external environmental auditing system known as
Environmental Functional Reviews (EFRs) to ensure compliance with NEPA.
Both the EMS and EFR are discussed on the NASA NEPA Web site.
The NASA NEPA Web site also provides the full name and location of
all ten NASA Centers and five Component Facilities.
The applicability of any CatEx to Agency actions is limited by the
extraordinary- circumstances analysis required by this proposed
regulation and described in detail following the discussion of the
proposed CatExs. The following paragraphs review the 23 CatExs included
in the proposed rule. Where CatExs are amended or consolidated, the
reasons are provided. For new CatExs, the supporting rationale is
explained.
NASA provides specific instructions pertaining to implementation of
NEPA program responsibilities internally through NASA Procedural
Requirements (NPR), 8580.1. NASA has identified that the 13 proposed
CatExs under the heading ``Administrative Activities'' and ``Operations
and Management Activities'' do not result in individually or
cumulatively significant environmental impacts. As a result, the NPR
will be updated to reflect that no environmental checklist is required.
A REC will be required for the remaining ten CatExs.
Sec. 1216.304(d)(1): Administrative Activities including:
(i) Personnel actions, organizational changes, and procurement of
routine goods and services.
(ii) Issuance of procedural rules, manuals, directives, and
requirements.
[[Page 43618]]
(iii) Program budget proposals, disbursements, and transfer or
reprogramming of funds.
(iv) Preparation of documents, including design and feasibility
studies, analytical supply and demand studies, reports and
recommendations, master and strategic plans, and other advisory
documents.
(v) Information-gathering exercises such as inventories, audits,
studies, and field studies, including water sampling, cultural
resources surveys, biological surveys, geologic surveys, modeling or
simulations, and routine data collection and analysis activities.
(vi) Preparation and dissemination of information, including
document mailings, publications, classroom materials, conferences,
speaking engagements, Web sites, and other educational/informational
activities.
(vii) Software development, data analysis, and/or testing,
including computer modeling.
(viii) Interpretations, amendments, and modifications to contracts,
grants, or other awards.
Under the heading ``Administrative Activities,'' NASA is proposing
eight new CatExs. Based on NASA's experience with these types of
actions, as documented in the following examples of NASA RECs and other
environmental documentation which have been completed and monitored by
NASA environmental professional staff, these actions do not result in
individually or cumulatively significant environmental impacts.
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Center Date Title
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1. JPL, CA.................... 11/10/2008 NASA Extragalactic
Database.
2. JPL, CA.................... 03/12/2009 Advanced Information
System Technology.
3. JPL, CA.................... 05/19/2009 GIPSY/RTG Software
Support for
Specialized Studies.
4. NASA HQ.................... 09/23/2009 ARRA Implementation of
Venture-Class
Mission, HQ ID-1095.
5. LaRC, VA................... 11/20/2009 Develop Data
Acquisition System to
be added to Embedded
Avionics Research
Lab.
6. LaRC, VA................... 03/23/2010 Contrail Study
Document.
------------------------------------------------------------------------
In addition, based on a review of the activities covered by other
agencies' CatExs, NASA has determined that it would be conducting
similar activities, under similar circumstances, and with similar
environmental impacts. Examples of other agencies' CatExs include:
1. Army, 32 CFR, Appendix B, Section II(b)(1-14) Administrative/
Operation Activities.
2. Environmental Protection Agency, 40 CFR 6.204(a)(2)(I).
Procedural, ministerial, administrative, financial, personnel, and
management actions necessary to support the normal conduct of EPA
business.
3. Navy, 32 CFR 775.6(f)(1), (2), (4), (5), and (10) Routine final
and administrative activities.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activities under this CatEx would
not result in significant environmental impacts and are, therefore,
eligible for categorical exclusion.
Sec. 1216.304(d)(2): Operations and Management Activities
including:
(i) Routine maintenance, minor construction or rehabilitation,
minor demolition, minor modification, minor repair, and continuing or
altered operations at, or of, existing NASA or NASA-funded or -approved
facilities and equipment such as buildings, roads, grounds, utilities,
communication systems, and ground support systems, such as space
tracking and data systems.
(ii) Installation or removal of equipment, including component
parts, at existing Government or private facilities.
(iii) Contribution of equipment, software, technical advice,
exchange of data, and consultation to other agencies and public and
private entities, where such assistance does not control a receiving
entity's program, project, or activity.
(iv) NASA ceremonies, commemorative events, and memorial services.
(v) Routine packaging, labeling, storage, and transportation of
hazardous materials and wastes in accordance with applicable Federal,
federally recognized Indian tribe, State, and/or local law or
requirements.
Under the heading ``Operations and Management Activities,'' NASA is
proposing five CatExs. The first one is ``Routine maintenance, minor
construction or rehabilitation, minor demolition, minor modification,
minor repair, and continuing or altered operations at, or of, existing
NASA or NASA-funded or -approved facilities and equipment such as
buildings, roads, grounds, utilities, communication systems, and ground
support systems, such as space tracking and data systems.'' This
proposed CatEx consolidates two existing NASA CatExs. For years, NASA
has relied on the existing CatExs for routine maintenance and repair
activities at facilities it owns and operates. Based on NASA's
experience with these types of actions, as documented in the following
examples of NASA RECs and other environmental documentation which have
been completed and monitored by NASA's environmental professional
staff, these actions do not result in individually or cumulatively
significant environmental impacts.
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Center Date Title
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1. MSFC, AL................... 09/04/2002 Replace Roofing System
(103).
2. MSFC, AL................... 09/04/2002 Replace Roofs (101,
102).
3. KSC, FL.................... 07/17/2007 Close/Demolish
Facilities Structures
Project 97963.
4. SSC, MS.................... 08/18/2008 Replace Potable Water
Well System.
5. JSC, TX.................... 03/18/2009 Replace Hangar 280.
6. JSC, TX.................... 03/18/2009 Repair JSC Barge Dock.
7. SSC, MS.................... 02/23/2010 Child Day Care
Drainage System
Improvements.
8. SSC, MS.................... 7/19/2010 Internal Modification
North Gate Reception
Center.
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[[Page 43619]]
In addition, based on a review of the activities covered by other
agencies' CatExs, NASA has determined that it would be conducting
similar activities, under similar circumstances, and with similar
environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II(g)(1)(2)(3).
Routine repair and maintenance building equipment, roads, vehicles, and
grounds.
2. EPA, 40 CFR 6.204(a)(1)(i). Actions at EPA facilities involving
routine facility maintenance, repair, grounds keeping; minor
rehabilitation, restoration, renovation.
3. Navy, 32 CFR 775.6(f)(8). Routine repair and maintenance of
buildings, facilities, vessels, aircraft, and equipment.
4. Department of Energy (DoE), 10 CFR part 1021, Subpart D,
Appendix B, B1.3. Routine maintenance/custodial service for buildings,
structures, infrastructure, and equipment. DoE has proposed new NEPA
regulations; see Web site http://nepa.energy.gov/1601.htm. DOE's
proposed regulations do not modify their relevance to NASA's proposed
CatEx.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activities under this CatEx would
not result in significant environmental impacts and are, therefore,
eligible for categorical exclusion. The second CatEx proposed under
``Operations and Management Activities'' is ``Installation or removal
of equipment, including component parts, at existing government or
private facilities.'' This is a new CatEx, which NASA is proposing to
further clarify the existing ``minor construction'' CatEx with respect
to equipment at NASA facilities. Cost and size of equipment can vary
dramatically, but normally, equipment is installed within a new or
existing building or facility, or outside on the walls, roof, or
surrounding grounds. Examples of minor construction include, but are
not limited to, replacement of boilers and chillers and installation of
a nitrogen storage system outside on a small concrete pad in a grassy
area adjacent to a building. As is always the case with CatExs, this
CatEx would not apply when the proposed action is connected to another
action that has the potential, by itself or in conjunction with the
equipment action, to cause significant environmental impacts. Based on
NASA's experience with these types of actions, as documented in the
following NASA RECs and other environmental documentation which have
been completed and monitored by NASA's environmental professional
staff, these actions do not result in individually or cumulatively
significant environmental impacts.
------------------------------------------------------------------------
Center Date Title
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1. MSFC, AL................... 09/04/2002 Replace Cell E Air
Handling Units 1 and
2.
2. MSFC, AL................... 09/04/2002 Replace Site Wide High
Voltage Oil Switches.
3. JPL, CA.................... 02/09/2009 Multiangle
Spectropolarimetric
Aerosol
Characterization.
4. LaRC, VA................... 10/08/2009 Install Acoustic
Phased Array with
Test Section.
5. LaRC, VA................... 10/08/2009 Add Jet Engine
Simulator to Wind
Tunnel.
6. KSC, FL.................... 11/03/2009 Starfighters Fuel Tank
Project 4244.
7. SSC, MS.................... 03/19/2010 Removal of Emergency
Generator/Fuel
Aboveground Storage
Tank from Building
1100.
8. WSTF, NM................... 07/26/2010 Gantry Crane Removal
400 Area.
------------------------------------------------------------------------
The third proposed CatEx under ``Operations and Management
Activities'' is ``Contribution of equipment, software, technical
advice, exchange of data, and consultation to other agencies and public
and private entities, where such assistance does not control the
receiving entity's program, project, or activity.'' This is a new
CatEx. Examples of activities that would fall under this CatEx include
technical advice on implementing a science education activity or on the
design or operation of a space launch facility where the advice does
not control the design and implementation. Based on NASA's experience
with these types of actions, as documented in the following NASA REC
supported by a CatEx, which has been completed and monitored by NASA's
environmental professional staff, these actions do not result in
individually or cumulatively significant environmental impacts.
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. JPL, CA.................... 04/09/2009 Global Differential
GPS Technology
Transfer Data
Exchange.
------------------------------------------------------------------------
Based on a review of the activities covered by other agencies'
CatExs, NASA has determined that it would be conducting similar
activities, under similar circumstances, and with similar environmental
impacts. Examples include:
1. EPA, 40 CFR 6.204(a)(2)(vii). Actions involving providing the
provision of providing technical advice to Federal agencies, State and
local governments, federally recognized Indian tribes, foreign
governments, or public and private entities.
2. Department of Agriculture, 7 CFR 1 b.3(a)(6). Activities which
are advisory and consultative to other agencies and public and private
entities, such as legal counseling and representation.
3. Federal Highway Administration, 23 CFR 771.117(c)(16). Program
administration, technical assistance activities, and operating
assistance to transit authorities to continue existing service or
increase service to meet routine change in demand.
4. DoE, 10 CFR part 1021, Subpart D, Appendix A, A11. Technical
advice and planning assistance to international, national, State, and
local organizations. DoE has proposed new NEPA regulations; see Web
site http://nepa.energy.gov/1601.htm. DoE's proposed regulations do not
modify their relevance to NASA's proposed CatEx.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activity under this CatEx would
not result in significant environmental impacts and is, therefore,
eligible for categorical exclusion.
The fourth proposed CatEx under ``Operations and Management
Activities'' is ``NASA ceremonies, commemorative events, and memorial
services.'' NASA enjoys celebrating America's space history. NASA
celebrated its 50th Anniversary in 2008 with numerous events for
employees
[[Page 43620]]
and the public at all of its Centers. Events generally ranged from
formal, solemn services at Arlington National Cemetery to honor
America's lost astronauts to events such as NASA's participation in the
week-long Smithsonian Folk Festival on the National Mall in Washington,
DC. This is a new CatEx. Based on NASA's experience with past
ceremonies and commemorative events, which have been documented in the
following four NASA RECs and other environmental documentation, which
have been completed and monitored by NASA's environmental professional
staff, these actions do not result in individually or cumulatively
significant environmental impacts.
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Center Date Title
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1. KSC, FL.................... 10/15/2001 Expedition 2 Crew Tree
Planting Ceremony.
2. KSC, FL.................... 11/15/2002 Delta 4 Launch
Viewing.
3. KSC, FL.................... 12/22/2008 2009 Center All-
American Picnic.
4. KSC, FL.................... 03/03/2010 2010 Center All-
American Picnic.
------------------------------------------------------------------------
In addition, based on a review of the activities covered by other
agencies' CatExs, NASA has determined that it would be conducting
similar activities, under similar circumstances, and with similar
environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II, (b)(11).
Ceremonies, funerals, and concerts, including flyovers.
2. Navy, 32 CFR 775.6(f)(6). Military ceremonies.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.38. Conducting Air
Force ``open houses'' and similar events, including air shows, golf
tournaments, and horse shows.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activity under this CatEx would
not result in significant environmental impacts and is, therefore,
eligible for categorical exclusion.
The final proposed CatEx under ``Operations and Management
Activities'' is ``Routine packaging, labeling, storage, and
transportation of hazardous materials and waste in accordance with
applicable Federal, federally recognized Indian tribe, State, or local
law or requirement.'' This is a new CatEx. NASA currently packages,
labels, stores and transports hazardous material and waste in
accordance with all applicable Federal, State, tribal, and local
statutes and regulations. Based on this experience, NASA has determined
that these actions do not result in a significant impact to the
environment.
Based on a review of the activities covered by other agencies'
CatExs, NASA has determined that it would be conducting similar
activities, under similar circumstances, and with similar environmental
impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (h)(4). Routine
management, to include transportation, distribution, use, storage,
treatment, and disposal of solid waste and/or hazardous waste.
2. Navy, 32 CFR 775.6(f)(16). Routine movement, handling, and
distribution of materials, including hazardous materials/wastes.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.28. Routine
transporting of hazardous materials and waste in accordance with
applicable Federal, State, interstate, and local laws.
4. DoE, 10 CFR part 1021, Subpart D, Appendix B, B 3.4. Transport
packaging for radioactive/hazardous material. DoE has proposed new NEPA
regulations, see Web site http://nepa.energy.gov/1601.htm. DoE's
proposed regulations do not modify their relevance to NASA's proposed
CatEx.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activity under this CatEx would
not result in significant environmental impacts and is, therefore,
eligible for categorical exclusion.
Sec. 1216.304(d)(3): Research and Development (R&D) Activities
including:
(i) Research, development, and testing in compliance with all
applicable Federal, federally recognized Indian tribe, State, and/or
local law or requirements, and Executive orders.
(ii) Use of small quantities of radioactive materials in a
laboratory or in the field. Uses include material for instrument
detectors, calibration, and other purposes. Materials must be licensed,
as required, and properly contained and shielded.
(iii) Use of lasers for research and development, scientific
instruments and measurements, and distance and ranging, where such use
meets all applicable Federal, federally recognized Indian tribe, State,
and/or local law or requirements, and Executive orders. This applies to
lasers used in spacecraft, aircraft, laboratories, watercraft, or
outdoor activities.
Under the heading ``Research and Development (R&D) Activities,''
NASA is proposing three CatExs. The first one is ``Research,
development, and testing in compliance with all applicable Federal,
federally recognized Indian tribe, State, and/or local law or
requirements, and Executive orders.'' This proposed CatEx consolidates
five existing R&D CatExs and ensures applicability to the broad range
of NASA R&D activities that have minimal or no impact on the
environment. Based on NASA's experience with these types of actions, as
documented in the following NASA RECs and other environmental
documentation which have been completed and monitored by NASA's
environmental professional staff, these actions do not result in
individually or cumulatively significant environmental impacts.
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. MSFC, AL................... 09/04/2002 Pilot Scale Testing of
Remediation
Technologies.
2. JPL, CA.................... 03/15/2006 Array Prototype:
Construct of Operate.
3. KSC, FL.................... 07/07/2008 Post Landing Orion
Recovery Test.
4. LaRC, VA................... 10/06/2009 Develop Air Traffic
Management Concepts.
5. NASA HQ.................... 12/23/2009 ARRA-Funded Activities
(HQ ID-1119).
6. GSFC, MD................... 04/20/2010 Operation Ice Bridge.
7. LaRC, VA................... 05/05/2010 Integrated
Intelligence Flight
Deck.
------------------------------------------------------------------------
[[Page 43621]]
In addition, NASA has reviewed activities covered by R&D CatExs
used by other Federal agencies, and these other agency activities are
similar to some of NASA's R&D activities and thus provide additional
support for this proposed NASA CatEx. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section ii(h)(5). Research,
testing, and operations conducted at existing closed facilities.
2. EPA, 40 CFR 6.204(a)(2)(iv). Actions relating to or conducted
completely within a permanent, existing contained facility such as a
laboratory.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.27. Normal or
routine basic and applied scientific research.
NASA recognizes that these other agency examples are generally
bounded to existing facilities; however, the nature of NASA's R&D
activities is such that it is not practical for NASA to bound its R&D
CatExs to existing facilities or even existing ranges. Instead, NASA
has proposed its new ``Extraordinary Circumstances'' to bound this R&D
CatEx, as well as its other CatExs. NASA has performed numerous R&D
activities outside existing facilities and ranges, located both on its
Centers and off its Centers, with no significant environmental impacts.
The broad variety and geographic diversity of NASA's environmentally
benign research activities is illustrated by the seven examples of past
NASA R&D activities listed in this preamble and by the additional 24
examples included in the NASA NEPA Library on the previously mentioned
NASA NEPA Web site at http://www.nasa.gov/green/nepa/index.html.
Based on a review of NASA's own R&D experience and the activities
covered by other agencies' R&D CatExs, NASA's has determined that its
R&D activity under this CatEx, as bounded by the proposed Extraordinary
Circumstances, would not result in significant environmental impacts
and is, therefore, eligible for categorical exclusion.
The second proposed CatEx under ``Research and Development (R&D)
Activities'' is ``Use of small quantities of radioactive materials in a
laboratory or in the field. Uses include material for instrument
detectors, calibration, and other purposes. Materials must be licensed,
as required, and properly contained and shielded.'' This is a new
CatEx. Based on NASA's experience with these types of actions, as
documented in the following NASA RECs and other environmental
documentation which have been completed and monitored by NASA
environmental professional staff, these actions do not result in
individually or cumulatively significant environmental impacts.
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. WFF, VA.................... 05/18/2006 NASA African Monsoon
Multidisciplinary
Analysis.
2. WFF, VA.................... 05/14/2007 Tropical Composition,
Cloud, Climate
Coupling (TC-4).
3. WFF, VA.................... 03/28/2008 ARCTAS Mission.
------------------------------------------------------------------------
The third proposed CatEx under ``Research and Development (R&D)
Activities'' is ``Use of lasers for research and development,
scientific instruments and measurements, and distance and ranging,
which meet all applicable Federal, federally recognized Indian tribe,
State, and/or local law or requirements, and Executive orders. This
applies to lasers in spacecraft, aircraft, laboratories, watercraft, or
outdoor activities.'' This is a new CatEx. Based on NASA's experience
with these types of actions, as documented in the following NASA RECs
and other environmental documentation, which have been completed and
monitored by NASA environmental professional staff, these actions do
not result in individually or cumulatively significant environmental
impacts. Examples include:
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. GSFC, MD................... 06/20/2002 ICE SAT (Laser
Research) EA.
2. GSFC, MD................... 11/19/2007 Push Broom Laser
Altimeter
Demonstration.
3. KSC, FL.................... 02/12/2008 USCG Laser Test
Project.
4. LaRC, VA................... 10/05/2009 1064 nm Pump Laser
Transmitter.
------------------------------------------------------------------------
Sec. 1216.304 (d)(4): Real and Personal Property Activities
including:
(i) Acquisition, transfer, or disposal of any personal property, or
personal property rights or interests.
(ii) Granting or acceptance of easements, leases, licenses, rights-
of-entry, and permits to use NASA-controlled property or any other real
property for activities which, if conducted by NASA, would be
categorically excluded in accordance with this section. This assumes
NASA has included any terms and conditions necessary and any required
notices in the transfer documentation, as applicable, to ensure
protection of the environment.
(iii) Transfer or disposal of real property or real property rights
or interests if the change in use is one which, if conducted by NASA,
would be categorically excluded in accordance with this section.
(iv) Transfer of real property administrative control to another
Federal agency, including the return of public domain lands to the
Department of the Interior (DoI) or other Federal agencies, and
reporting of property as excess and surplus to the General Services
Administration (GSA) for disposal, when the agency receiving
administrative control (or GSA, following receipt of a report of
excess) will complete any necessary NEPA review prior to any change in
land use.
(v) Acquisition of real property (including facilities) where the
land use will not change substantially.
Under the heading ``Real and Personal Property Activities,'' NASA
is proposing five CatExs. The first is ``Acquisition, transfer, or
disposal of any personal property, or personal property rights or
interests.'' This is a new CatEx. Changes in ownership of personal
property (such as furnishings, vehicles, office, laboratory, or field
supplies and equipment), or interests in personal property do not
normally have the potential to significantly affect the environment.
Based on past experience with similar actions, NASA has determined that
its activity under this proposed CatEx would not result in
[[Page 43622]]
significant environmental impact and is, therefore, eligible for
categorical exclusion. Based on a review of the activities covered by a
similar DoE CatEx (10 CFR part 1021, Subpart D, Appendix A, A7
``Transfer of property, use unchanged''), NASA has further determined
that it would be conducting similar activities, under similar
circumstances, and with similar environmental impacts. Accordingly,
based on its own experience and that of DoE, NASA has concluded that
its activity under this CatEx would not result in significant
environmental impacts and is, therefore, eligible for categorical
exclusion.
The second proposed CatEx under ``Real and Personal Property
Activities'' is ``Granting or acceptance of easements, leases,
licenses, rights-of-entry, and permits to use NASA-controlled property
or any other real property for activities which, if conducted by NASA,
would be categorically excluded in accordance with this section. This
assumes that NASA has included any terms and conditions necessary to
ensure protection of the environment and any required notices in the
transfer documentation, as applicable.'' This is a new CatEx. Based on
NASA's experience with these types of actions, as documented in the
following NASA RECs and other environmental documentation, which has
been completed and monitored by NASA's environmental professional
staff, these actions do not result in individually or cumulatively
significant environmental impacts.
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. DFRC, CA................... 11/20/2002 Dryden Aircraft
Operations Facility
Lease.
2. DFRC, CA................... 02/23/2007 Installation of Flight
Termination System.
3. KSC, FL.................... 10/20/2008 AT&T Press Site
Enhanced Use Lease.
------------------------------------------------------------------------
In addition, based on a review of the activities covered by other
agencies' CatExs, NASA has determined that it would be conducting
similar activities, under similar circumstances, and with similar
environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(1). Grants or
acquisition of leases, licenses, easements, and permits for use of real
property or facilities.
2. Navy, 32 CFR 775.6(f)(33). Grants of license, easement, or
similar arrangements for the use of existing right-of-way. Air Force,
32 CFR part 989, Appendix B, A 2.3.19. Granting easements, leases,
licenses, rights of entry, and permits to use Air Force-controlled
property for activities that, if conducted by the Air Force, would be
categorically excluded.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activity under this CatEx would
not result in significant environmental impacts and is, therefore,
eligible for categorical exclusion.
The third proposed CatEx under ``Real and Personal Property
Activities'' is ``Transfer or disposal of real property or real
property rights or interests if the change in use is one which, if
conducted by NASA, would be categorically excluded in accordance with
this section.'' This is a new CatEx. Although NASA does not have
project-specific NEPA documentation to include as support for this
CatEx, NASA has conducted these types of activities without any
significant environmental impact. For example, Goddard Space Flight
Center transferred property to a county as part of a road project which
was analyzed in the Goddard Master Plan EA and Finding of No
Significant Impact (FONSI).
In addition, based on a review of the activities covered by other
agencies' CatExs, NASA has determined that it would be conducting
similar activities, under similar circumstances, and with similar
environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(6). Disposal
of real property (including facilities) by the Army where the
reasonably foreseeable use will not change significantly.
2. Navy, 32 CFR 775.6(f)(26)(28). Transfer of real property from
the Department of the Navy to another military department or to another
Federal agency. Minor land acquisition or disposal.
3. DOE, 10 CFR part 1021, Subpart D, Appendix A, A7. Transfer,
lease, disposition, or acquisition of interests in personal property or
real property, if property use is to remain unchanged. DOE has proposed
new NEPA regulations, see Web site http://nepa.energy.gov/1601.htm.
Language similar to that found in DOE's current regulation has been
moved to Appendix B 1.24. This modification does not change its
relevance to NASA's proposed CatEx.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activity under this CatEx would
not result in significant environmental impacts and is, therefore,
eligible for categorical exclusion.
The fourth proposed CatEx under ``Real and Personal Property
Activities'' is ``Transfer of real property administrative control to
another Federal agency, including the return of public domain lands to
the Department of the Interior (DoI) or other Federal agencies, and
reporting of property as excess and surplus to the General Services
Administration (GSA) for disposal, when the agency receiving
administrative control (or GSA, following receipt of a report of
excess) will complete any necessary NEPA review prior to any change in
land use.'' This is a new CatEx. Within the Federal real property
inventory, NASA is a small land management agency. At numerous NASA
Centers, NASA is collocated within or adjacent to, or is a tenant on, a
DoD base with no land-expansion capacity. Excess land is typically
transferred back to the landowner. Any such land no longer needed by
NASA would likely be transferred to DoD. In the rare case that NASA has
land to be excessed, as the Federal agent, NASA is required to declare
the property excess to GSA. In such situations, NASA's action with
regard to the United States' real property interest is merely an
administrative action, and GSA and/or any receiving agency would
conduct a NEPA review for any potential change in use. NASA has one
example of a declaration of excess property that was reviewed by NASA
and was determined not to require further NEPA action. The following
example of NASA's activity supports this new CatEx because the activity
did not have any environmental impacts.
[[Page 43623]]
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. MSFC, AL................... 11/14/2007 Reporting to GSA
Excess Property on
Santa Susana Field
Laboratory.
------------------------------------------------------------------------
In addition, based on a review of the activities covered by other
agencies' CatExs, NASA has determined that it would be conducting
similar activities, under similar circumstances, and with similar
environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(3). Transfer
of real property to another military department or to another Federal
agency and reporting that property as excess to the GSA.
2. Navy, 32 CFR 775.6(f)(26). Transfer of real property from the
Department of the Navy to another military department or to another
Federal agency.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.18. Transfer of
administrative control of real property within the Air Force to another
military department or to another Federal agency.
4. DoE, 10 CFR part 1021, Subpart D, Appendix A, A7. Transfer,
lease, disposition, or acquisition of interests in personal property or
real property, if property use is to remain unchanged. DoE has proposed
new NEPA regulations, see Web site http://nepa.energy.gov/1601.html.
Language similar to that found in DoE's current regulation has been
moved to Appendix B 1.24. This modification does not change its
relevance to NASA's proposed CatEx.
Accordingly, based on its own experience and that of other
agencies, NASA has concluded that its activity under this CatEx would
not result in significant environmental impacts and is, therefore,
eligible for categorical exclusion.
The fifth proposed CatEx under ``Real and Personal Property
Activities'' is ``Acquisition of real property (including facilities)
where the land use will not change substantially.'' This is a new
CatEx. Although NASA does not have specific NEPA documentation to
include as support for this CatEx, NASA has reviewed activities covered
by CatExs used by other Federal agencies for similar actions. Based on
a review of the activities covered by other agencies' CatExs, NASA has
determined that it would be conducting similar activities, under
similar circumstances, and with similar environmental impacts.
Accordingly, NASA has concluded that its activity under this CatEx
would not result in significant environmental impacts and is,
therefore, eligible for categorical exclusion. Examples of other
agencies' CatExs include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(5).
Acquisition of real property where the land use will not change
substantially.
2. Navy, 32 CFR 775.6(f)(28). Minor land acquisition or disposal
where anticipated or proposed land use is similar to existing land use
and zoning, both in type and intensity.
3. DOE, 10 CFR part 1021, Subpart D, Appendix A, A7. Transfer,
lease, disposition, or acquisition of interests in personal property or
real property, if property use is to remain unchanged. DOE has proposed
new NEPA regulations, see Web site http://nepa.energy.gov/1601.html.
Language similar to that found in DOE's current regulation has been
moved to Appendix B 1.24. This modification does not change its
relevance to NASA's proposed CatEx.
Sec. 1216.304(d)(5): Aircraft and Airfield Activities including:
(i) Periodic aircraft flight activities, including training and
research and development, which are routine and comply with applicable
Federal, federally recognized Indian tribe, State, and/or local law or
requirements, and Executive orders.
(ii) Relocation of similar aircraft not resulting in a substantial
increase in total flying hours, number of aircraft operations,
operational parameters (e.g., noise), or permanent personnel or
logistics support requirements at the receiving installation.
Under the heading ``Aircraft and Airfield Activities,'' NASA is
proposing two CatExs. The first proposed CatEx is ``Periodic aircraft
flight activities, including training and research and development,
which are routine and comply with applicable Federal, federally
recognized Indian tribe, State and/or local laws or requirements and
Executive orders.'' This is a new CatEx. Based on NASA's experience
with these types of actions, as documented in the following NASA RECs
and other environmental documentation, which have been completed and
monitored by NASA's environmental staff, these actions do not result in
individually or cumulatively significant environmental impacts.
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. MSFC, AL................... 10/31/2007 Compliance for Lunar
Reconnaissance
Orbiter.
2. DFRC, CA................... 11/20/2007 Dryden Aircraft
Operations Facility.
3. SSC, MS.................... 07/03/2010 Subscale Diffuser
Test.
------------------------------------------------------------------------
In addition, based on a review of the activities covered by the
Army's CatEx (32 CFR part 651, Appendix B, Section II (i)(2) ``Flying
activities in compliance with FAA regulations and in accordance with
normal flight patterns.''), NASA has determined that it would be
conducting similar activities, under similar circumstances, and with
similar environmental impacts. Accordingly, based on its own experience
and that of the Army, NASA has concluded that its activity under this
CatEx would not result in significant environmental impacts and is,
therefore, eligible for categorical exclusion.
The second proposed CatEx under this heading is ``Relocation of
similar aircraft not resulting in a substantial increase in total
flying hours, number of aircraft operations, operational parameters
(e.g., noise), or permanent personnel or logistics support requirements
at the receiving installation.'' This is a new CatEx. Based on NASA's
experience with these types of actions, as documented in the following
NASA RECs and other environmental documentation, which have been
completed and monitored by NASA's environmental staff, these actions do
not result in individually or cumulatively significant environmental
impacts.
[[Page 43624]]
------------------------------------------------------------------------
Center Date Title
------------------------------------------------------------------------
1. DFRC, CA................... 11/20/2007 Dryden Aircraft
Operations Facility.
2. DFRC, CA................... 07/21/2009 U.S. Army Twin Otter
Aircraft Operating
out of Dryden.
3. KSC, FL.................... 11/10/2009 Relocate Helicopter
Operation.
------------------------------------------------------------------------
In addition, based on a review of the activities covered by the Air
Force's CatEx (32 CFR part 989, Appendix B, A 2.3.31 ``Relocating a
small number of aircraft to an installation with similar aircraft that
does not result in a significant increase of total flying hours or
aircraft operations.''), NASA has determined that it would be
conducting similar activities, under similar circumstances, and with
similar environmental impacts. Accordingly, based on its own experience
and that of the Air Force, NASA has concluded that its activity under
this CatEx would not result in significant environmental impacts and
is, therefore, eligible for categorical exclusion.
Extraordinary Circumstances
NASA is proposing ``extraordinary circumstances'' to mean ``those
circumstances * * * that may cause a significant environmental effect
such that an action that otherwise meets the requirements of a
categorical exclusion may not be categorically excluded.'' This meaning
is consistent with CEQ regulations at Sec. 1508.4.
NASA has identified the following extraordinary circumstances which
must be considered as part of the environmental review process. NASA
will prepare an EA or an EIS when a proposed action involves
unmitigated extraordinary circumstances. All seven of the extraordinary
circumstances are new to NASA's NEPA regulations. They identify
criteria which normally require either an EA or an EIS. Extraordinary
circumstances precluding the use of CatExs occur when the proposed
action:
1. Has a reasonable likelihood of having individually or
cumulatively significant effects on public health, safety, or the
environment.
2. Imposes uncertain or unique environmental risks.
3. Is of significantly greater scope or size than is normal for
this category of action.
4. Has a reasonable likelihood of violating Federal, federally
recognized Indian tribe, State, or local law or requirements imposed
for the protection of the environment.
5. Involves effects on the quality of the environment that are
likely to be environmentally controversial.
6. May adversely affect environmentally sensitive resources, such
as, but not limited to, federally listed threatened 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 has been
resolved through another environmental review process; e.g., the Clean
Water Act (CWA), the Coastal Zone Management Act (CZMA).
7. May 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 has been resolved through another environmental
review process; e.g., the National Historic Preservation Act (NHPA).
NASA believes there is a relationship between the extraordinary
circumstances and the criteria for actions that generally require EAs
or EISs. The intent is to standardize the essential concepts and
combine the criteria into a consolidated set of extraordinary
circumstances applicable to all NASA actions subject to NEPA. The
extraordinary circumstances are not intended to be a listing of
requirements for preparing EAs or EISs. Rather, they are to be used to
determine whether a categorical exclusion applies to a proposed action.
What constitutes a ``unique'' environmental risk in the second
extraordinary circumstance can apply to a wide range of situations. For
example, it could be a small construction project that would normally
be categorically excluded, but a threatened bird species has been known
to nest in the general area. In such a situation, the Center may decide
that preparation of an EA is warranted. Similarly, what could be
``environmentally controversial'' under paragraph 5 of the
extraordinary circumstances can also apply to a wide range of actions.
An example could be that a proposed action involves science, which is
not conclusive as to its impacts or effects, and, as a result, is
considered environmentally controversial by the public. If initial
evaluation concludes that a categorical exclusion cannot be applied due
to an extraordinary circumstance, the NASA Responsible Official may
prepare an EA to determine whether a FONSI or an EIS is the appropriate
NEPA document for the project, or the Responsible Official may proceed
directly with preparing an EIS.
Actions Normally Requiring an EIS
NASA has identified five categories of Agency actions that
typically require an EIS. These actions, under the existing regulation,
are found at Sec. 1216.305 (c)(1)(2) and (3) which is currently
titled, Criteria for Actions Requiring Environmental Assessments. The
proposed rule provides a stand-alone section, Sec. 1216.308, titled,
Actions Normally Requiring an EIS. The five types of typical NASA
actions that normally require an EIS include two actions from the
current regulation, which have been modified to update and provide
clarity, and three new types of actions. These five actions are:
1. Development and operation of new launch vehicles or space
transportation systems.
2. Development and operation of a space flight project/program
which would launch and operate a nuclear reactor or radioisotope power
systems and devices using a total quantity of radioactive material
greater than the quantity for which the NASA Nuclear Flight Safety
Assurance Manager may grant nuclear safety launch approval (i.e., a
total quantity of radioactive material for which the A2 Mission
Multiple (see definitions in Appendix A) is greater than 10)).
3. Development and operation of a space flight project/program
which would return samples to Earth from solar system bodies (such as
asteroids, comets, planets, dwarf planets, planetary moons, etc.),
which would likely receive a Restricted Earth Return categorization (as
defined in Appendix A) from the NASA Planetary Protection Office or the
NASA Planetary Protection Subcommittee.
4. Substantial modification of a NASA facility's master plan in a
manner expected to result in significant effect(s) on the quality of
the human environment.
5. Substantial construction projects expected to result in
significant effect(s) on the quality of the human environment, when
such construction and its effects are not within the scope of an
existing master plan and EIS.
Other Modifications and Additions
NASA is amending its procedures for implementing the requirements
of
[[Page 43625]]
NEPA, 42 U.S.C. 4321-4347. These proposed regulations, like NASA's
existing NEPA regulations, are a supplement to the CEQ regulations
implementing NEPA. Consistent with this fact, these proposed
regulations were drafted with the objective of minimizing repetition of
requirements already contained in the CEQ regulations and with the
understanding that these NASA-specific regulations would be applied
with (and be bounded by) the CEQ regulations.
The proposed rule includes a number of additional modifications,
deletions, and additions that consolidate, streamline, and clarify
NASA's procedures for the implementation of NEPA. These include the
following:
1. Section 1216.300, Scope, adds the express adoption by NASA of
the CEQ regulations implementing NEPA.
2. The definition of key terms has been moved to Appendix A of 14
CFR 1216.3.
3. Section 1216.303, NEPA Process in NASA Planning and Decision-
Making, has been updated and streamlined.
4. Section 1216.304, Categorical Exclusions, NASA has added the
requirement that CatExs be reviewed every seven years, as specified in
the CEQ's November 2010 guidance on categorical exclusion under NEPA.
5. Section 1216.305, Criteria for Actions Requiring Environmental
Assessments, has been expanded from the previous rule and is now
specifically for EAs only. It identifies five specific actions that
normally require an EA.
6. Section 1216.308, Supplemental EAs and EISs have been added to
recognize the potential requirement for supplemental NEPA documentation
in accordance with CEQ regulations.
7. Section 1216.310, Classified Actions, has been modified to
reflect current NASA policy.
8. Section 1216.311, Emergency Responses, is a new section which
recognizes appropriate NEPA response in an emergency situation.
Procedural Requirements
NASA's proposed rule complies with and addresses the following
procedural requirements and policies as described in more detail below:
The Regulatory Flexibility Act (January 1981)
The Regulatory Flexibility Act, 5 United States Code (U.S.C.) 601
et seq., requires that a regulation that has a significant economic
impact on a substantial number of small entities, small businesses, or
small organizations must include an initial regulatory flexibility
analysis describing the regulation's impact on small entities.
NASA has considered the impact of the proposed rule under the
Regulatory Flexibility Act and certifies that the proposed rule will
not have a significant economic impact on a substantial number of small
entities.
The Paperwork Reduction Act (December 1980)
This proposed rule does not require information collection as
defined under the Paperwork Reduction Act. Therefore, this rule does
not constitute a new information collection system requiring Office of
Management and Budget (OMB) approval under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
Executive Order 13132, Federalism (August 1999)
This proposed rule does not have significant Federalism effects or
implications; therefore, a Federalism assessment under Executive Order
13132 is not required. The policies and procedures will not have
substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of Government. No
intrusion on State policy or administration is expected if roles or
responsibilities of Federal or State governments will not change and
fiscal capacity will not be substantially affected.
The Unfunded Mandates Reform Act (March 1995)
This proposed rule will not significantly or uniquely affect small
governments. Therefore, a Small Government Agency Plan is not required
under the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.). The
rule does not require any additional management responsibilities.
Further, this rule will not produce a Federal mandate of $100 million
or greater in any year; and thus, it is not a significant regulatory
action under the Unfunded Mandates Reform Act. This proposed rule is
not expected to have significant economic impacts nor will it impose
any unfunded mandates on other Federal, State, or local government
agencies to carry out specific activities.
Executive Order 12875, Enhancing the Intergovernmental Partnership
(October 1993)
This proposed rule does not impose non-statutory unfunded mandates
on small governments and is not subject to the requirements of
Executive Order 12875.
Executive Order 12898, Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations (February 1994)
Executive Order 12898 establishes Federal executive policy on
environmental justice. Its main provision directs Federal agencies, to
the greatest extent practicable and permitted by law, to make
environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and/or low-income populations. In
developing this proposed rule in compliance with Executive Order 12898,
NASA determined that the proposed rule did not raise any environmental
justice concerns.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments (November 2000)
Executive Order 13175 requires NASA to develop an accountable
process to ensure ``meaningful and timely input by tribal officials in
the development of regulatory policies that have tribal implications.''
This proposed rule does not have Indian tribal implications, as
specified in Executive Order 13175.
NASA's proposed rule imposes no new regulatory obligations on
tribes. It will not have substantial direct effects on tribes, on the
relationship between the national Government and tribes, or on the
distribution of power and responsibilities between the national
Government and tribes. These proposed regulations do not preempt tribal
law. Thus, Executive Order 13175 does not apply to this proposed rule.
Essential Fish Habitat (December 2006)
NASA has analyzed this proposed rule in accordance with Section 305
(b) of the Magnuson-Stevens Fishery Conservation and Management Act (18
U.S.C. 1855) and determined that the proposed rule will not affect the
essential fish habitat of federally managed species; and, therefore, an
essential fish habitat consultation on this rule is not required.
Executive Order 13045, Protection of Children From Environmental Health
Risks and Safety Risks (April 1997)
Executive Order 13045 applies to any rule that is determined to be
``economically significant,'' as defined
[[Page 43626]]
under Executive Order 12866, and concerns an environmental health or
safety risk that may have a disproportionate effect on children. This
proposed rule is not subject to Executive Order 13045 because it does
not establish an environmental standard to mitigate health; it does not
create a safety risk; and it is not ``economically significant.''
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (May 2001)
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211 because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. The proposed rule does not impose new regulatory obligations
related to energy supply, distribution, or use of energy on NASA, State
or local governments, tribes, or individuals. Therefore, NASA has
concluded that this proposed rule is not likely to have any adverse
energy effects.
Executive Order 13212, Actions To Expedite Energy-Related Projects (May
2001)
Executive Order 13212 requires agencies to expedite energy-related
projects by streamlining internal processes while maintaining safety,
public health, and environmental protections. The proposed rule is in
conformance with this requirement as it promotes the streamlining of
the existing NEPA process within NASA.
Executive Order 12630, Government Action and Interference With
Constitutionally Protected Property Rights (March 1988)
This proposed rule is issued with respect to NEPA and, therefore,
establishes NASA's responsibilities for early integration of
environmental consideration into planning and decision making. This
proposed rule is not expected to impact the provisions of Executive
Order 12630.
Executive Order 13423, Strengthening Federal Environmental, Energy, and
Transportation Management (January 2007)
Executive Order 13423 requires agencies to implement environmental
management systems and improve energy efficiency. NASA is developing
environmental management systems and energy efficiency programs in
compliance with this Executive order. The proposed rule furthers these
objectives and goals by ensuring that NEPA compliance is done in
accordance with the policy set forth in the Executive order.
Executive Order 13514, Federal Leadership in Environmental, Energy, and
Economic Performance (October 2009)
Executive Order 13514 requires agencies to prepare and annually
update an integrated Strategic Sustainability Performance Plan, which
will prioritize Agency actions based on life-cycle return on
investment. In addition, it requires agencies to establish greenhouse
gas emission reduction targets and report annually on their progress in
achieving these goals. The Executive order also requires agencies to
improve water use efficiency and management and promote pollution
prevention and elimination of waste. Sustainable building design,
construction, operation, and management are also required for future
Federal buildings. The proposed rule furthers the objectives and goals
by ensuring that NEPA compliance is done in accordance with the policy
set forth in the Executive order.
Executive Order 13563 and Executive Order 12866
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, distributive 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 as a ``significant
regulatory action,'' although not economically significant, under
section 3(f) of Executive Order 12866. Accordingly, the rule has been
reviewed by the Office of Management and Budget.
For the reasons given in the preamble, NASA proposes to amend 14
CFR part 1216 by revising subpart 1216.3 to read as follows:
PART 1216--ENVIRONMENTAL QUALITY
Subpart 1216.3--Procedures for Implementing the National Environmental
Policy Act (NEPA)
Sec.
1216.302 Responsibilities.
1216.303 NEPA process in NASA planning and decision making.
1216.304 Categorical exclusions.
1216.305 Actions requiring environmental assessments.
1216.306 Actions normally requiring an EIS.
1216.307 Programmatic EAs, and EISs, and tiering.
1216.308 Supplemental EAs and EISs.
1216.309 Mitigation and monitoring.
1216.310 Classified actions.
1216.311 Emergency responses.
Subpart 1216.3--Procedures for Implementing the National
Environmental Policy Act (NEPA)
Authority: The National Aeronautics and Space Act of 1958, as
amended (42 U.S.C. 2451 et seq.); The National Environmental Policy Act
of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq.); the Council on
Environmental Quality (CEQ) Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act (40 CFR parts 1500-
1508).
Sec. 1216.300 Scope.
This subpart implements NEPA, setting forth NASA's policies and
procedures for the early integration of environmental considerations
into planning and decision making. Through this subpart, NASA adopts
the CEQ regulations implementing NEPA (40 CFR parts 1500-1508) and
supplements those regulations with this subpart 1216.3, for actions
proposed by NASA that are subject to NEPA requirements. This regulation
is to be used in conjunction with the CEQ regulations. Consistent with
the CEQ regulations at 40 CFR 1500.3, no trivial violation of this part
shall give rise to any independent cause of action.
Sec. 1216.301 Applicability.
This subpart applies to all organizational elements of NASA.
Sec. 1216.302 Responsibilities.
(a) The NASA Senior Environmental Official (SEO) (as defined in
Appendix A to this subpart) is responsible for overseeing and guiding
NASA's integration of NEPA into the Agency's planning and decision
making. The SEO, with the assistance of the Office of the General
Counsel (OGC), is responsible for developing NASA NEPA regulations and
maintaining up-to-date Agency-wide NEPA guidance that fully integrates
NEPA analysis into Agency planning and decision-making processes. The
SEO shall monitor this process to ensure that these regulations and the
associated Agency guidance are achieving their purposes. In addition,
the NASA SEO is responsible for coordinating with other Federal
agencies and the CEQ and consolidating and transmitting NASA's comments
on
[[Page 43627]]
EISs and other NEPA documentation prepared by other Federal agencies:
(1) The NASA Headquarters/Environmental Management Division (HQ/
EMD) has delegated the SEO's overall responsibility of implementing
NEPA functions and guiding NASA's integration of NEPA into the Agency's
planning and decision making for all NASA activities. The HQ/EMD
provides advice and consultation to all NASA entities in implementing
their assigned responsibilities under NEPA.
(2) Each NASA Center has an environmental management office that
guides and supports the working-level functions of the NEPA process,
such as evaluating proposed actions; developing, reviewing, and
approving required documentation; and advising project managers.
(b) The Responsible Official shall ensure that planning and
decision making for each proposed Agency action complies with these
regulations and with Agency NEPA policy and guidance provided by the
SEO, HQ/EMD, and the Center's environmental management office. For
facility programs and projects, the Responsible Official is the
individual responsible for establishing, developing, and maintaining
the institutional capabilities required for the execution of programs
and projects (e.g., Center Director, facility manager). For other
programs and projects, (e.g., space flight programs/projects, R&D
programs/projects) the Responsible Official is the NASA official
responsible for the formulation and implementation of the program or
project (e.g., The Associate Administrator for Science Mission
Directorate, Center Director).
(c) NASA must comply with this regulation when considering issuance
of a permit, lease, easement, or grant to a non-Federal party and may
seek such non-Federal party's assistance in obtaining necessary
information and completing the NEPA process. The Responsible
Official(s) for such action(s), in consultation with HQ/EMD and/or the
Center's environmental management office, will determine the type of
environmental information needed from the non-Federal party and the
extent of the non-Federal party's participation in the necessary NEPA
process.
Sec. 1216.303 NEPA process in NASA planning and decision making.
(a) NEPA requires the systematic examination of the environmental
consequences of implementing a proposed Agency action. Full integration
of the NEPA process with NASA project and program planning improves
Agency decisions and ensures that:
(1) Planning and decision making support NASA's strategic plan
commitment to sustainability and environmental stewardship and comply
with applicable environmental statutes, regulations, and policies.
(2) The public is appropriately engaged in the decision-making
process.
(3) Procedural risks and delays are minimized.
(b) Determining the appropriate level of NEPA review and
documentation for a proposed NASA action will depend upon the scope of
the action and the context and intensity of the reasonably foreseeable
environmental impacts.
(c) The environmental impacts of a proposed Agency action must be
considered, along with technical, economic, and other factors that are
reasonably foreseeable, beginning in the early planning stage of a
proposed action. NASA will take no action which would have an adverse
environmental impact or limit the choice of reasonable alternatives
prior to completion of its NEPA review.
Sec. 1216.304 Categorical exclusions.
(a) Categorical Exclusions (CatExs) are categories of Agency
actions with no individually or cumulatively significant impact on the
human environment and for which neither an EA nor an EIS is required.
The use of a CatEx is intended to reduce paperwork, improve Government
efficiency, and eliminate delays in the initiation and completion of
proposed actions having no significant impact.
(b) A proposed action may be categorically excluded if the action
fits within a category of actions eligible for exclusion (such
categories are listed in paragraph (d) of this section), and the
proposed action does not involve any extraordinary circumstances as
described in paragraph (c) of this section.
(c) Extraordinary circumstances that may preclude the use of CatExs
occur when the proposed action:
(1) Has a reasonable likelihood of having (individually or
cumulatively) significant impacts on public health, safety, or the
environment;
(2) Imposes uncertain or unique environmental risks;
(3) Is of significantly greater scope or size than is normal for
this category of action;
(4) Has a reasonable likelihood of violating Federal, federally
recognized Indian tribe, State, and/or local law or requirements
imposed for the protection of the environment;
(5) Involves impacts on the quality of the environment that are
likely to be environmentally controversial;
(6) May adversely affect environmentally sensitive resources, such
as, but not limited to, federally listed threatened or 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 has been resolved through another environmental review process;
e.g., the Clean Water Act (CWA), the Coastal Zone Management Act
(CZMA); and
(7) May 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 has been resolved through another environmental
review process; e.g., the National Historic Preservation Act (NHPA).
(d) Specific NASA actions meeting the criteria for being
categorically excluded from the requirements for EAs and EISs are as
follows:
(1) Administrative Activities including:
(i) Personnel actions, organizational changes, and procurement of
routine goods and services.
(ii) Issuance of procedural rules, manuals, directives, and
requirements.
(iii) Program budget proposals, disbursements, and transfer or
reprogramming of funds.
(iv) Preparation of documents, including design and feasibility
studies, analytical supply and demand studies, reports and
recommendations, master and strategic plans, and other advisory
documents.
(v) Information-gathering exercises, such as inventories, audits,
studies, and field studies, including water sampling, cultural
resources surveys, biological surveys, geologic surveys, modeling or
simulations, and routine data collection and analysis activities.
(vi) Preparation and dissemination of information, including
document mailings, publications, classroom materials, conferences,
speaking engagements, Web sites, and other educational/informational
activities.
(vii) Software development, data analysis, and/or testing,
including computer modeling.
(viii) Interpretations, amendments, and modifications to contracts,
grants, or other awards.
(2) Operations and Management Activities including:
(i) Routine maintenance, minor construction or rehabilitation,
minor
[[Page 43628]]
demolition, minor modification, minor repair, and continuing or altered
operations at, or of, existing NASA or NASA-funded or -approved
facilities and equipment, such as buildings, roads, grounds, utilities,
communication systems, and ground support systems, such as space
tracking and data systems.
(ii) Installation or removal of equipment, including component
parts, at existing Government or private facilities.
(iii) Contribution of equipment, software, technical advice,
exchange of data, and consultation to other agencies and public and
private entities, where such assistance does not control a receiving
entity's program, project, or activity.
(iv) NASA ceremonies, commemorative events, and memorial services.
(v) Routine packaging, labeling, storage, and transportation of
hazardous materials and wastes, in accordance with applicable Federal,
federally recognized Indian tribe, State, and/or local law or
requirements.
(3) Research and Development (R&D) Activities including:
(i) Research, development, and testing in compliance with all
applicable Federal, federally recognized Indian tribe, State, and/or
local law or requirements and Executive orders.
(ii) Use of small quantities of radioactive materials in a
laboratory or in the field. Uses include material for instrument
detectors, calibration, and other purposes. Materials must be licensed,
as required, and properly contained and shielded.
(iii) Use of lasers for research and development, scientific
instruments and measurements, and distance and ranging, where such use
meets all applicable Federal, federally recognized Indian tribe, State,
and/or local law or requirements, and Executive orders. This applies to
lasers used in spacecraft, aircraft, laboratories, watercraft, or
outdoor activities.
(4) Real and Personal Property Activities including:
(i) Acquisition, transfer, or disposal of any personal property, or
personal property rights or interests.
(ii) Granting or acceptance of easements, leases, licenses, rights-
of-entry, and permits to use NASA-controlled property, or any other
real property, for activities which, if conducted by NASA, would be
categorically excluded in accordance with this section. This assumes
that NASA has included any required notices in transfer documentation
and any terms and conditions necessary to ensure protection of the
environment, as applicable.
(iii) Transfer or disposal of real property or real property rights
or interests if the change in use is one which, if conducted by NASA,
would be categorically excluded in accordance with this section.
(iv) Transfer of real property administrative control to another
Federal agency, including the return of public domain lands to the
Department of the Interior (DoI) or other Federal agencies, and
reporting of property as excess and surplus to the General Services
Administration (GSA) for disposal, when the agency receiving
administrative control (or GSA, following receipt of a report of
excess) will complete any necessary NEPA review prior to any change in
land use.
(v) Acquisition of real property (including facilities) where the
land use will not change substantially.
(5) Aircraft and Airfield Activities including:
(i) Periodic aircraft flight activities, including training and
research and development, which are routine and comply with applicable
Federal, federally recognized Indian tribe, State, and/or local law or
requirements, and Executive orders.
(ii) Relocation of similar aircraft not resulting in a substantial
increase in total flying hours, number of aircraft operations,
operational parameters (e.g., noise), or permanent personnel or
logistics support requirements at the receiving installation.
(e) The Responsible Official shall review the proposed action in
its early planning stage and will consider the scope of the action and
the context and intensity of any environmental impacts to determine
whether there are extraordinary circumstances that could result in
environmental impacts. If extraordinary circumstances exist, the
Responsible Official will either withdraw the proposed action or
initiate an EA or EIS.
(f) The NASA SEO will review the categorical exclusions at least
every seven years, in accordance with CEQ guidance, to determine
whether modifications, additions, or deletions are appropriate, based
upon NASA's experience. Recommendations for modifications, additions,
or deletions shall be submitted to the SEO for consideration and
informal discussion with the CEQ.
Sec. 1216.305 Actions requiring environmental assessments.
(a) The Responsible Official will prepare an EA when a proposed
action cannot be categorically excluded, and the proposed action is not
expected to result in impacts that require analysis in an EIS. The
Responsible Official will consider the scope of the action and the
context and intensity of any environmental impacts when determining
whether to prepare an EA.
(b) Typical NASA actions normally requiring an EA include:
(1) Specific spacecraft development and space flight projects/
programs (as defined in Appendix A to this subpart).
(2) Actions altering the ongoing operations at a NASA Center which
could lead directly, indirectly, or cumulatively to substantial natural
or physical environmental impacts.
(3) Construction or modifications of facilities which are not
minor.
(4) Proposed actions that are expected to result in significant
changes to established land use.
(5) A space flight project/program that would return
extraterrestrial samples to Earth from solar system bodies (such as
asteroids, comets, planets, dwarf planets, and planetary moons), which
would likely receive an Unrestricted Earth Return categorization (as
defined in Appendix A) from NASA's Planetary Protection Office (PPO) or
the NASA Planetary Protection Subcommittee prior to the return of
samples to the Earth.
Sec. 1216.306 Actions normally requiring an EIS.
(a) NASA will prepare an EIS for actions with the potential to
significantly impact the quality of the human environment, including
actions for which an EA analysis demonstrates that significant impacts
will potentially occur which will not be reduced or eliminated by
changes to the proposed action or mitigation of its potentially
significant impacts.
(b) Typical NASA actions normally requiring an EIS include:
(1) Development and operation of new launch vehicles or space
transportation systems.
(2) Development and operation of a space flight project/program
which would launch and operate a nuclear reactor or radioisotope power
systems and devices using a total quantity of radioactive material
greater than the quantity for which the NASA Nuclear Flight Safety
Assurance Manager may grant nuclear safety launch approval (i.e., a
total quantity of radioactive material for which the A2 Mission
Multiple (see definitions in Appendix A) is greater than 10)).
(3) Development and operation of a space flight project/program
which would return samples to Earth from solar system bodies (such as
asteroids,
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comets, planets, dwarf planets, and planetary moons), which would
likely receive a Restricted Earth Return categorization (as defined in
Appendix A) from the NASA Planetary Protection Office or the NASA
Planetary Protection Subcommittee.
(4) Substantial modification of a NASA facility's master plan in a
manner expected to result in significant effect(s) on the quality of
the human environment.
(5) Substantial construction projects expected to result in
significant effect(s) on the quality of the human environment, when
such construction and its effects are not within the scope of an
existing master plan and EIS.
Sec. 1216.307 Programmatic EAs, and EISs, and tiering.
NASA encourages the analysis of actions at the programmatic level
for those programs similar in nature or broad in scope. Programmatic
NEPA analyses may take place in the form of an EA or EIS. These
documents allow ``tiering'' of NEPA documentation for subsequent or
specific actions.
Sec. 1216.308 Supplemental EAs and EISs.
As detailed in CEQ regulations, supplemental documentation may be
required for previous EAs or EISs (see 40 CFR 1502.9). If changed
circumstances require preparation of a supplemental EA or EIS, such
document will be prepared following the same general process as the
original EA or EIS. No new scoping is required for a supplemental EIS;
however, NASA may choose to conduct scoping.
Sec. 1216.309 Mitigation and monitoring.
When the analysis proceeds to an EA or EIS and mitigation measures
are selected to avoid or reduce environmental impacts, such mitigation
measures will be identified in the EA/FONSI or the EIS Record of
Decision (ROD). NASA will implement mitigation measures (including
adaptive management strategies, where appropriate) consistent with
applicable FONSIs and/or RODs and will monitor their implementation and
effectiveness. The Responsible Official will ensure that funding
requests for such mitigation measures are included in the program or
project budget.
Sec. 1216.310 Classified actions.
(a) Classification does not relieve NASA of the requirement to
assess, document, and consider the environmental impacts of a proposed
action.
(b) When classified information can reasonably be separated from
other information and a meaningful environmental analysis can be
produced, unclassified documents will be prepared and processed in
accordance with these regulations. Classified portions will be kept
separate and provided to properly cleared reviewers and decision makers
in the form of a properly classified document that meets the
requirements of these regulations to the extent permitted, given such
classification.
Sec. 1216.311 Emergency responses.
(a) When the Responsible Official determines that an emergency
exists that makes it necessary to take urgently needed actions before
preparing a NEPA analysis and any required documentation, in accordance
with the provisions in sections 305 and 307 of this subpart, then the
following provisions apply:
(1) The Responsible Official may take urgently needed actions that
are necessary to control the immediate impacts of the emergency needed
to mitigate harm to life, property, or resources. When taking such
actions, the Responsible Official shall, to the extent practical,
mitigate foreseeable adverse environmental impacts.
(2) At the earliest practicable time, the Responsible Official
shall also notify the SEO of the emergency situation and the action(s)
taken. The SEO will determine the appropriate NEPA action associated
with the urgent actions taken as a result of the emergency. If the
urgent actions will reasonably result in significant environmental
impacts, the SEO will consult with the CEQ to ensure compliance with 40
CFR 1506.11 as soon as is reasonable.
(b) If the Responsible Official proposes emergency actions which
continue beyond the urgent actions taken as a result of the emergency,
and these actions are not categorically excluded, the Responsible
Official will consult with the SEO to determine the appropriate level
of NEPA compliance. If continuation of the emergency actions will
reasonably result in significant environmental impacts, the SEO will
consult with the CEQ to ensure compliance with 40 CFR 1506.11 as soon
as is reasonable.
Appendix A to Subpart 1216.3
Acronyms and Definitions
CatEx Categorical Exclusion
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
CWA Clean Water Act
CZMA Coastal Zone Management Act
DoI (U.S.) Department of the Interior
EA Environmental Assessment
EIS Environmental Impact Statement
FONSI Finding of No Significant Impact
FR Federal Register
GSA General Services Administration
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
SEO Senior Environmental Official
OGC Office of the General Counsel
PPO Planetary Protection Office
ROD Record of Decision
U.S.C. United States Code
Definitions
1. A2 Mission Multiple--The A2 Mission Multiple is a calculated
value based on the total amount of radioactive material being
launched. This value is used in defining the level of review and
approval required for launch.
2. Earth Return Mission (also known as a Sample Return)--A
subcategory of missions that would collect extraterrestrial
materials from solar system bodies and return them to Earth.
3. NASA Senior Environmental Official--The Senior NASA
Headquarters Official responsible for providing executive and
functional leadership for environmental compliance. As of January 1,
2011, the SEO is the Assistant Administrator for Strategic
Infrastructure.
4. Restricted Earth Return--A subcategory of Earth Return
Missions which requires additional measures to ensure that any
potential indigenous life form would be contained so that it could
not impact humans or Earth's environment.
5. Space Flight Projects/Programs--Those NASA actions that
develop products intended for use in space and/or that support
ground and space operations for products in space.
6. Unrestricted Earth Return--NASA Procedural Requirements
define this as a subcategory of Earth Return Missions that would
collect extraterrestrial materials from solar system bodies (deemed
by scientific opinion to have no indigenous life forms) and return
those samples to Earth. No planetary protection measures are
required for the inbound (return to Earth) phase of the mission.
Dated: July 14, 2011.
Charles F. Bolden, Jr.,
Administrator, National Aeronautics and Space Administration.
[FR Doc. 2011-18279 Filed 7-20-11; 8:45 am]
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