[Federal Register Volume 81, Number 222 (Thursday, November 17, 2016)]
[Notices]
[Pages 81066-81074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27567]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XF031
Revised National Environmental Policy Act Implementing Procedures
AGENCY: National Oceanic and Atmospheric Administration, Department of
Commerce.
ACTION: Notice of availability; request for comments.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
publishes this notice to request comments on its draft Companion Manual
to NOAA Administrative Order NAO 216-6A (``Companion Manual'')
containing policy and procedures for implementing the National
Environmental Policy Act (NEPA) and related authorities. Included in
the Companion Manual are NOAA's proposed revised categorical exclusions
(CE) and related extraordinary circumstances. Pursuant to Council on
Environmental Quality (CEQ) regulations, NOAA is soliciting comments on
its proposed procedures from members of the interested public.
Additionally, in this notice, NOAA is providing a synopsis of the
proposed changes to NOAA's CEs to assist the public in reviewing those
changes.
DATES: Comments on the revised NEPA procedures must be received by
December 19, 2016.
ADDRESSES: Comments on NOAA's proposed NEPA procedures may be submitted
through one of these methods: (1) Electronic Submission of Comments:
Submit electronic comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-HQ-2016-0145, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments; (2) Mail: Send to NOAA NEPA Coordinator,
Attention Katherine Renshaw, 1315 East-West Highway, Room 15132, Silver
Spring, MD 20910.
Instructions: NOAA may not consider comments if they are sent by
any other method, to any other address or individual, or received after
the comment period ends. All comments received are a part of the public
record and NOAA will generally post for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender is publicly accessible. NOAA will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). NOAA will make this notice and the draft Companion Manual
available online for public inspection at http://www.nepa.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Please send questions by email to
[email protected]; or contact Rachel Lipsy at 301-427-8247.
SUPPLEMENTARY INFORMATION:
Background
NEPA (42 U.S.C. 4321 et seq.) declares a national policy to promote
efforts that will prevent or eliminate damage to the environment,
stimulate the health and welfare of man, and enrich the understanding
of the ecological systems and natural resources important to the United
States. NEPA also established the CEQ to, among other things, analyze
and interpret environmental trends and information, to review and
appraise programs and activities of the Federal government in light of
NEPA's purpose, and to develop policies to promote the improvement of
environmental quality. As part of these responsibilities, the CEQ
promulgated regulations to implement NEPA (see 40 CFR part 1500 et
seq.). Those regulations direct Federal agencies to adopt procedures
for implementing NEPA and to review and revise those policies and
procedures as necessary to ensure full compliance with the purposes and
provisions of NEPA.
NEPA and the CEQ implementing regulations provide for environmental
review of a proposed government action in the form of an Environmental
Assessment (EA), Environmental Impact Statement (EIS), or Categorical
Exclusion (CE). A CE is ``a category of actions which do not
individually or cumulatively have a significant effect on the human
environment,'' and, based on the agency's past experience, does not
require further NEPA review in the form of either an EA or EIS. See 40
CFR 1508.4, CEQ, ``Final Guidance for Federal Departments and Agencies
on Establishing, Applying, and Revising Categorical Exclusions Under
the National Environmental Policy Act'' (75 FR 75628; December 6,
2010). A CE does not exempt an action from NEPA review; rather, it is
one form of environmental review under NEPA. See 75 FR 75631. A CE may
be applied to a proposed action after the decision maker has carefully
reviewed the description of the action and determined that it fits
within the category of actions encompassed by the CE. See 40 CFR
1508.4. In making this determination, the decision maker must also
consider whether extraordinary circumstances apply, which would lead to
a normally categorically excluded action to have the potential for
significant impacts. Thus, a CE does not eliminate environmental review
of a proposed action but reduces paperwork and delay and allows an
agency to efficiently focus its resources on proposed actions with the
potential for significant environmental effects.
On April 22, 2016, NOAA issued NOAA Administrative Order 216-6A
(NAO 216-6A), which updated NOAA's policy for compliance with NEPA, the
CEQ NEPA regulations, and other related authorities, including
Executive Order (EO) 12114, Environmental Effects Abroad of Major
Federal Actions; EO 11988, Floodplain Management; and EO 11990,
Protection of Wetlands. The NAO authorized the development of a
Companion Manual entitled Policy and Procedures for Compliance with the
National Environmental Policy Act and Related Authorities (``Companion
Manual''). The draft Companion Manual includes NOAA's proposed revised
CEs as an appendix. NAO 216-6A superseded NOAA Administrative Order NAO
216-6 dated May 20, 1999 (1999 NAO), with the exception of those
provisions implementing CEQ regulation 40 CFR 1507.3(b), including the
NOAA's CEs and related provision for extraordinary circumstances. Those
provisions temporarily remain in effect until superseded by revised CEs
and the authorized Companion Manual. Additionally, the National Marine
Fisheries Service's February 23, 2016 supplement to NAO 216-6, entitled
``Revised and Updated NEPA Procedures for Magnuson-Stevens Fishery
Management Actions,'' remains in effect. The supplement sets forth the
policies and procedures for NEPA compliance for such actions. For
convenience, the supplement is reproduced as Appendix C to the
Companion Manual. Decision makers for such actions may also consider
and apply the guidance in the Companion Manual to the extent it is
consistent with the policies and procedures in the supplement.
Process
NOAA last updated its NEPA Procedures in 1999. In order to ensure
that its procedures, including CEs and
[[Page 81067]]
extraordinary circumstances, remain appropriate to ensure full
compliance with the purposes and provisions of NEPA, NOAA began an
extensive review process. As part of its process for revising the
agency's NEPA procedures, NOAA convened a Working Group composed of
representatives across NOAA's Staff and Line Offices. The Working Group
members conducted significant scoping within their respective offices
to assess the need for revised NEPA procedures, the need for revised
CEs, and to gather information relevant to proposed new CEs, including
information necessary to support the proposed changes. Throughout the
revision process, NOAA also conducted outreach with other agencies with
similar missions, and consulted extensively with CEQ. See 40 CFR
1507.3.
Upon review of NOAA's overall NEPA procedures, the agency
determined that its existing procedures would benefit from clarifying
revisions and that NOAA's CEs would benefit from revisions to clarify
the scope and applicability and that several new CEs were appropriate
to improve NEPA review by categorically excluding actions that, based
on NOAA's experience, have no potential to significantly impact the
human environment. In some instances, NOAA determined that providing
additional language to describe the categories of actions covered by an
existing CE was necessary to clarify the intended scope of that CE. In
other cases, NOAA determined that the scope of a CE was unclear because
it covered too many disparate activities with few meaningful
limitations. The Working Group determined that breaking out components
of these CEs into discrete CEs that accurately described the category
of actions to be excluded from further NEPA review and including
appropriately limiting language clarified the proper scope and
application of the CE for the decision maker. Additionally, NOAA
identified CEs that either lacked adequate substantiation or were no
longer necessary because of mission changes. Accordingly, NOAA proposes
to eliminate these types of CEs.
NOAA proposes to substantiate its new and revised CEs by
benchmarking other agencies' CEs, relying on previously implemented
actions, and/or relying on the expert opinions of NOAA's professional
staff, all of which are methods recommended by CEQ to substantiate
proposed new or revised CEs. See 75 FR 75633-34. Benchmarking means
that NOAA is substantiating a CE based on other agencies' experience
with a comparable CE and the administrative record developed by other
agencies when they established their own CEs. To ensure the CEs that
NOAA proposes to benchmark properly support NOAA's proposed CEs, NOAA
analyzed the actions encompassed by other agencies' CEs by considering
the characteristics of the actions, methods of implementing the
actions, frequency of the actions, applicable standard operating
procedures or implementing guidance, and timing and context to
determine that the actions analyzed by these agencies are sufficiently
similar to those covered by the proposed CE to offer support for NOAA's
conclusion that these actions will not result in individually or
cumulatively significant impacts on the human environment under normal
circumstances.
Additionally, and where appropriate, NOAA relied on its
professional staff to analyze the activities encompassed by the
proposed CEs and explain the expert's conclusion that those activities
have no potential for significant effects on the environment. Finally,
NOAA relied on its own experience with previously implemented actions
(e.g., EAs that resulted in Findings of No Significant Impacts) to
determine that the analyses of those actions and the resulting absence
of environmental effects of those actions support the proposed CE.
Synopsis of Proposed Changes to CEs
Applicable Terms
Certain terms appear frequently in the language of NOAA's proposed
CEs to limit their scope and ensure they are applied properly and
limited to those activities that NOAA has determined have no potential
for significant impacts. The following list presents and describes
these terms:
(1) ``Previously disturbed ground'' refers to land that has been
changed such that its functioning ecological processes have been and
remain substantially altered by human activity. The term encompasses
areas that have been transformed from natural cover to non-native
species or a developed state, including but not limited to, utility and
electrical power transmission corridors and rights-of-way, paved and
unpaved roads, and construction footprints.
(2) ``Minor'' and ``small-scale'' are terms NOAA considers in the
context of the particular proposal, including its proposed location. In
assessing whether a proposed action is small, in addition to the actual
magnitude of the proposal, NOAA considers factors such as industry
norms and the relationship of the proposed action to similar types of
development or activity in the vicinity of the proposed action. When
considering the size of a proposed facility, for example, NOAA would
review the surround land uses, the scale of the proposed action
relative to existing development, and the capacity of existing roads
and other infrastructure to support the proposed action. When these
limiting terms are used within a specific CE, the administrative record
for that CE provides further explanation of their meaning in the
context of the activity addressed by that CE.
(3) ``Negligible'' refers to a level of impact that is below
significant to the point of being hardly detectable. Factors for
consideration include: Procedures that employ generally accepted
industry standards or best management practices that have been tested
and verified at the time an activity is proposed; whether an activity
has understood or well-documented impacts at the time an activity is
proposed; whether control and quality measures are in place (e.g.,
monitoring and verification; emergency plans and preparedness); the
direct, indirect, and cumulative effects of the proposed activity on a
resource; and the context and intensity of expected discharges or
deposits and disturbances to resources, like the submerged lands of any
sanctuary, corals, and other living, cultural, and historical
resources.
Categorical Exclusions
NOAA's proposed revised CEs are organized into eight series, based
on the types of activities encompassed by each group. Series A
encompasses CEs that pertain to Trust Resource Management Actions. B
pertains to Trust Resource Authorization and Permitting Actions. C
pertains to Habitat Restoration Actions. D pertains to Additional
External Funding. E pertains to Research Actions. F pertains to Real
and Personal Property Improvement, Maintenance, and Construction
Actions. G pertains to Operational Actions. Finally, H pertains to
Acquisition and Leasing Actions.
The following list presents NOAA's proposed CEs, followed by a
description of the CE's relationship to the existing CEs from the 1999
NAO and an explanation of how and why a CE was revised or developed.
Trust Resource Management Actions
[A1]. ``An action that is a technical correction or a change to a
fishery management action or regulation, which does not result in a
substantial change in any of the following: Fishing location, timing,
effort, authorized gear types, access to fishery resources or harvest
levels.''
[[Page 81068]]
NOAA proposes to consolidate components of several CEs from the
1999 NOA: 6.03a.3(b)(1), 6.03a.3(b)(2), 6.03d.4(a), and 6.03d.4(b).
NOAA realized in implementing NEPA since 1999 that there were several
very similar CEs that frequently served the same purpose. NOAA also
determined that it would be most helpful for practitioners to address
different types of management plans in separate CEs so that limitations
to ensure that the category of actions would not result in significant
impacts were appropriate to the types of management plan in place.
Accordingly, consolidating these classes of actions into a single CE
for fishery management actions and regulations clarified the CE's scope
and applicability for decision makers. The proposed revision limits the
scope of the CE so that any corrections or changes to which the CE is
to be applied may not result in a substantial change in fishing
location, timing, effort, authorized gear types, access to fishery
resources or harvest levels. The proposed changes and revisions do not
result in a substantial change in scope or applicability from the
listed CEs in the 1999 NAO.
[A2]. ``Preparation of a recovery plan pursuant to section 4(f)(1)
of the ESA. Such plans are advisory documents that provide consultative
and technical assistance in recovery planning and do not implement
site-specific or species-specific management actions. However,
implementation of specific tasks identified in a recovery plan may
require an EA or EIS depending on the nature of the action.''
NOAA proposes to revise CE 6.03e.3(a) by adding ``and do not direct
site-specific or species-specific management actions'' to the
definition of consultative. NOAA's use of the language ``. . . advisory
documents that provide consultative and technical assistance in
recovery planning and do not direct site-specific or species-specific
management actions. However, implementation of specific tasks
identified in a recovery plan may require additional NEPA analysis
depending on the nature of the action'' further clarifies the proper
use of the CE and ensures that it is not employed to cover specific
management actions. The proposed changes and revisions clarify the
scope and applicability of the CE and do not result in any change in
scope or applicability from the CE in the 1999 NAO.
[A3.] ``Temporary fishery closures or extensions of closures under
section 305(c)(3)(C) of the Magnuson-Stevens Fishery Conservation and
Management Act to ensure public health and safety.''
NOAA proposes a new CE to cover temporary fishery closures or
extensions of closures under section 305(c)(3)(C) of the Magnuson-
Stevens Fishery Conservation and Management Act to ensure public health
and safety following a public health emergency or an oil spill.
[A4.] ``Minor updates to existing national marine sanctuary
management plans. This CE does not apply to sanctuary designations,
expansions, changes in terms of designation, or new sanctuary
management plans.''
NOAA proposes to consolidate components of two CEs from the 1999
NOA: 6.03a.3(b)(1) and 6.03a.3(b)(2). NOAA realized in implementing
NEPA since 1999 that there were several very similar CEs that
frequently served the same purpose. NOAA also determined that discrete
CEs with appropriately limiting language specific to different types of
management plans would be most helpful to decision makers. Accordingly,
consolidating these classes of actions into a single CE for minor
updates to existing national marine sanctuary management plans
clarified the CE's scope and applicability for decision makers. NOAA
proposes to explicitly limit the use of this CE by not allowing the
category to be applied to actions that are amendments or changes to a
management plan that affect sanctuary boundaries or to new sanctuary
management plans. The National Marine Sanctuaries Act (16 U.S.C. 1431
et seq.) mandates that the Secretary of Commerce (as delegated to NOAA)
prepare an environmental impact statement for sanctuary designations
and boundary changes. The proposed changes and revisions do not result
in a substantial change in scope or applicability from the listed CEs
in the 1999 NAO.
[A5.] ``Updates to existing National Estuarine Research Reserve
(NERR) management plans, provided that the update does not change NERR
boundaries or add or significantly change allowable uses, uses
requiring a permit, or restrictions on uses. This CE does not apply to
new NERR management plans, or to the execution of any specific action
subsequently funded to support the updated NERR management plan.''
NOAA proposes to consolidate components of two CEs from the 1999
NOA: 6.03a.3(b)(1) and 6.03a.3(b)(2). NOAA realized in implementing
NEPA since 1999 that there were several very similar CEs that
frequently served the same purpose. NOAA also determined that discrete
CEs with appropriately limiting language specific to different types of
management plans would be most helpful to decision makers. Accordingly,
consolidating these classes of actions into a single CE for updates to
existing NERR management plans clarified the CE's scope and
applicability for decision makers. The CE is limited so that it may not
be applied to actions where the update changes reserve boundaries and
the change adds or significantly changes allowable uses requiring a
permit, or restrictions on uses. Additionally the CE is limited in that
it does not apply to new NERR management plans, or to the execution of
any specific action subsequently funded to support the updated NERR
management plan. The proposed changes and revisions do not result in a
substantial change in scope or applicability from the listed CEs in the
1999 NAO.
[A6.] ``Review and approval of changes to state coastal management
programs under the Coastal Zone Management Act (CZMA) Sec. 306(e) (16
U.S.C. 1455(e)) and NOAA's regulations at 15 CFR part 923.''
NOAA proposes to consolidate components of two CEs: 6.03a.3(b)(1)
and 6.03a.3(b)(2). NOAA realized in implementing NEPA since 1999 that
there were several very similar CEs that frequently served the same
purpose. NOAA also determined that discrete CEs with appropriately
limiting language specific to different types of management plans would
be most helpful to decision makers. Accordingly, consolidating these
classes of actions into a single CE for review and approval of changes
to state coastal management programs under the CZMA 16 U.S.C. 1455(e)
and NOAA's regulations at 15 CFR part 923 clarified the CE's scope and
applicability for decision makers. The Working Group determined that
these statutory and regulatory limitations appropriately limited the
scope of the CE so that activities encompassed by the CE have no
potential for significant effects on the environment under normal
circumstances.
Trust Resource Authorization and Permitting Actions
[B1.] ``Issuance of permits or permit modifications under section
10(a)(1)(A) of the ESA for take, import, or export of endangered
species for scientific purposes or to enhance the propagation or
survival of the affected species, or in accordance with the
requirements of an ESA section 4(d) regulation for threatened
species.''
NOAA proposes to make minor revisions to CE 6.03e.3(b) by adding
section 4(d) of the ESA to the text of the CE. The intent and purpose
of Sections
[[Page 81069]]
10(a)(1)(a) and 4(d) of the ESA to issue permits for scientific or
enhancement purposes. The proposed changes and revisions do not result
in any change in scope or applicability from the CE in the 1999 NAO.
[B2.] ``Issuance of permits or permit amendments under section 104
of the MMPA for take or import of marine mammals for scientific
research, enhancement, commercial or educational photography or public
display purposes; and issuance of Letters of Confirmation under the
General Authorization for scientific research involving only Level B
harassment.''
NOAA proposes to revise CE 6.03f.2(a) by removing section 101(a)(1)
of the MMPA from the text of the CE. The reference to section 101(a)(1)
was incorrect in the 1999 version and the revision corrects this error.
The proposed revision does not result in any change in the scope or
applicability of the CE.
[B3.] ``Issuance of, and amendments to, ``low effect'' Incidental
Take Permits and their supporting ``low effect'' Habitat Conservation
Plans under section 10(a)(1)(B) of the ESA.''
NOAA proposes minor text edits to revise CE 6.03e.3(d) for
clarification and readability. The proposed revision does not result in
a substantial change on the scope or applicability of the CE.
[B4.] ``Issuance of incidental harassment authorizations under
section 101(a)(5)(A) and (D) of the MMPA for the incidental, but not
intentional, take by harassment of marine mammals during specified
activities and for which no serious injury or mortality is
anticipated.''
NOAA proposes to maintain CE 6.03f.2(b) and revise the language to
clarify the proper scope and application of the CE. The 1999 NAO
included an error that referred to only section 101(a)(5)(A) of the
Marine Mammal Protection Act--this error has been corrected in this
revision, which now properly refers to both sections 101(a)(5)(A) and
101(a)(5)(D). Additionally, the 1999 version of the CE required
authorizations to be ``tiered from a programmatic environmental
review'' and this requirement has been removed. NOAA currently reviews
small take incidental harassment authorizations under NEPA without the
need for a ``tiering'' process. Accordingly, the proposed revision does
not result in a substantial change in scope or applicability from the
CEs in the 1999 NAO.
NOAA proposes four new CEs--B5, B6, B7, and B8--to cover the
issuance of, or amendments to general permits, special use permits,
authorizations, and certifications for activities conducted within
National Marine Sanctuaries. Previously, NOAA had applied CEs
6.03c.3(a), 6.03c.3(c), 6.03c.3(d), and 6.03c.(3)(i) to address these
actions. The Working Group determined that proposing new CEs that
specifically encompass the actions described in B5, B6, B7, B8, B9, and
B10 clarified the scope and applicability of the CEs for decision
makers. Each CE is limited by conditions to ensure that activities
encompassed by the CEs have no potential for significant effects on the
environment under normal circumstances.
[B5.] ``Issuance of, or amendments to, general permits for
activities that are included in established permit categories at 15 CFR
part 922 and that meet the regulatory review criteria at 15 CFR part
922, that limit any potential impacts so that the proposed activity
will be conducted in a manner compatible with the National Marine
Sanctuaries Act's primary objective of resource protection.''
[B6.] ``Issuance of, or amendments to, special use permits for
activities in a national marine sanctuary that are necessary to either
establish conditions of access to and use of any sanctuary resource or
promote public use and understanding of a sanctuary resource and must
be conducted in a manner that does not destroy, cause the loss of, or
injure sanctuary resources in accordance with the National Marine
Sanctuaries Act.''
[B7.] ``Issuance of or amendments to, authorizations for activities
allowed by a valid federal, regional, state, local or tribal government
approval (e.g., leases, permits and licenses) issued after the
effective date of sanctuary designation or expansion, so long as such
authorizations are based upon a consideration of the regulatory review
criteria at 15 CFR part 922, and will only result in negligible effects
to sanctuary resources.''
[B8.] ``Issuance of, or amendments to certifications for pre-
existing activities authorized by a valid federal, regional, state,
local, or tribal government approval (e.g., leases, permits and
licenses) or rights of subsistence use or access in existence on the
date of the designation or expansion of any national marine sanctuary
where the Office of National Marine Sanctuaries issues terms and
conditions that are either ministerial or prescribe avoidance,
minimization, or mitigation measures designed to ensure negligible
effects to sanctuary resources.''
[B9.] ``Issuance of, or amendments to Papah[amacr]naumoku[amacr]kea
Marine National Monument (as established by Presidential Proclamation
8031) permits for activities that are included in established permit
categories (50 CFR part 404) and that meet the regulatory review
criteria at (50 CFR 404.11), that limit any potential impacts so that
the proposed activity will be conducted in a manner compatible with the
monument's primary objective of resource protection.''
NOAA proposes a new CE to cover the issuance of, or amendments to
Papah[amacr]naumoku[amacr]kea Marine National Monument permits for
activities that are included in established permit categories under 50
CFR part 404 and that meet the regulatory review criteria under 50 CFR
404.11.
[B10.] ``Issuance of, or amendments to,
Papah[amacr]naumoku[amacr]kea Marine National Monument special ocean
use permits for activities or use of the monument that are engaged in
to generate revenue or profits for one or more of the persons
associated with the activity or use, and do not destroy, cause the loss
of, or injure monument resources.''
NOAA proposes a new CE to cover the issuance of, or amendments to
Papah[amacr]naumoku[amacr]kea Marine National Monument special ocean
use permits for activities or use of the monument that are engaged in
to generate revenue or profits for one or more of the persons
associated with the activity or use, and do not destroy, cause the loss
of, or injure monument resources.
[B11.] ``Issuance of Exempted Fishing Permits (EFPs) under the
authority of the Magnuson-Stevens Act and Scientific Research Permits
(SRPs) and other permits for research that may impact species regulated
under the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) and the Atlantic Tunas Convention Act (ATCA). This
includes permitted research of limited size, magnitude or duration with
negligible individual or cumulative impacts, which requires temporary
relief of fishery management regulations.''
NOAA proposes a new CE to cover the issuance of, or amendments to
permits or authorizations for activities that are conducted within
Marine National Monuments other than Papah[amacr]naumoku[amacr]kea that
are limited in scope so that the potential impacts of the proposed
activities will be conducted in a manner compatible with a monument's
primary objective of resource protection, and do not destroy, cause the
loss of, or injure monument resources.
[B12.] ``Issuance of Exempted Fishing Permits (EFPs) under the
authority of
[[Page 81070]]
the Magnuson-Stevens Act and Scientific Research Permits (SRPs) and
other permits for research that may impact species regulated under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (MSA) and the Atlantic Tunas Convention Act (ATCA). This includes
permitted research of limited size, magnitude or duration with
negligible individual or cumulative impacts, which requires temporary
relief of fishery management regulations. ``
NOAA proposes a new CE to cover the issuance of Exempted Fishing
Permits (EFPs) under the authority of the Magnuson-Stevens Act and
Scientific Research Permits (SRPs) and other permits for research that
may impact species regulated under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (MSA) and the Atlantic
Tunas Convention Act (ATCA). These revisions are intended to encompass
activities regarding the issuance of EFPs and SRPs for research
activities within the scope of the CE and conducted for the benefit of
fisheries and the environment.
Habitat Restoration Actions
[C1.] ``Habitat restoration actions, provided that such action: (1)
Transplants only organisms currently or formerly present at the site or
in its immediate vicinity (if transplant is a component of the action);
(2) does not require substantial placement of fill or dredging; (3)
does not involve any removal of debris, excavation, or conditioning of
soils unless such removal of debris, excavation, or conditioning of
soils is geographically limited to the impact area such that site
conditions will not impede or negatively alter natural processes, is in
compliance with all permit and disposal requirements,), and will not
impact critical aquifers or recharge areas; and (4) does not involve an
added risk of human or environmental exposure to toxic or hazardous
substances, pathogens, or radioactive materials.
Notes: If applicable, limitations and mitigation measures
identified in the NOAA Restoration Center Programmatic Environmental
Impact Statement for Habitat Restoration Actions must be followed.
This CE includes, but is not limited to, response or restoration
actions under CERLCA, OPA, or NMSA, if such actions are intended to
restore an ecosystem, habitat, biotic community, or population of
living resources to a determinable pre-impact condition prior to the
incident leading to the response or restoration.''
NOAA proposes to revise the version of CE 6.03b.2 by removing the
condition that actions encompassed by this CE ``are intended to restore
an ecosystem, habitat, biotic community, or population of living
resources to a determinable pre-impact condition.'' NOAA determined
that removing the requirement ``(1) are intended to restore an
ecosystem, habitat, biotic community, or population of living resources
to a determinable pre-impact condition'' clarified the applicability of
this CE. Previously, the condition limited the CE's application to
circumstances where NOAA was able to determine the pre-impact condition
of the resource to be restored and this created confusion as to the
scope and applicability of the CE. NOAA also added criteria that limit
the scope of the CE. These four limitations were developed and reviewed
by the Working Group and included to ensure that this category of
actions is properly limited in context and intensity such that there is
no potential for individual or cumulative significant effects on the
human environment under normal circumstances. Finally, NOAA added the
requirement that, if applicable, limitations and mitigation measures
identified in the NOAA Restoration Center Programmatic Environmental
Impact Statement for Habitat Restoration Actions (June 2015) (RC PEIS)
must be followed.
Additional External Funding
[D1.] ``Financial activities for the following financial services:
(1) Loans for purchase, refinancing, or reconstruction of fishing
vessels and purchase or refinancing of individual fishing quota through
the Fisheries Finance Program; (2) Deferred tax program provided to
fishermen to construct, reconstruct, or acquire fishing vessels through
the Capital Construction Fund Program; and (3) Compensation to
fishermen for economic and property losses caused by oil and gas
obstructions on the U.S. Outer Continental Shelf under the Fishermen's
Contingency Fund.''
NOAA proposes to break out a portion of CE 6.03c.3(b) to explicitly
cover only the limited financial activities for specific financial
services under the Fisheries Finance Program, the Capital Construction
Fund Program, and the Fisherman's Contingency Fund. The Working Group
determined that for the vast majority of financial assistance and
financial services actions, decision makers should look at whether the
underlying activity to be funded falls within one of the established
CEs. The activities addressed in proposed D1, however, while
appropriate for a CE, were not separately addressed in any of the other
NOAA CEs and thus are proposed here as a separate financial activities
category. The proposed revision clarifies the scope and applicability
of the CE.
[D2.] ``Provision of a grant, a contract or other financial
assistance to a State, Fishery Management Council or Marine Fisheries
Commission under 16 U.S.C. 1881a(d).''
NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly
cover the provision of a grant, contract, or other financial assistance
to a State, Fishery Management Council or Marine Fisheries Commission
under 16 U.S.C. 1881a(d). Similar to the activities addressed in D1,
the Working Group determined that the specific provision of funding
pursuant to 16 U.S.C. 1881(a)(d) was appropriately addressed in a CE
and not otherwise covered by other NOAA proposed CEs. The proposed
revision clarifies the scope and applicability of the CE.
Research Actions
NOAA proposes to break out a portion of CEs 6.03c.3(a) and
6.03c.3(d) to explicitly cover a variety of research activities with no
potential for individual or cumulative significant effects under normal
circumstances. The Working Group determined that it would be more
appropriate to address research programs and projects with more
specificity than the existing 1999 CE, which broadly covers all
``research programs or projects of limited size and duration or with
only short-term, minor effects on the human environment.'' Instead,
after an internal scoping process evaluating the types of research
activities that were routinely and appropriately relying on the
existing CE, the Working Group developed the following categories of
activities in proposed CEs E1-E8. For each of the proposed research
CEs, the Working Group proposed limitations appropriate to the category
of activities to ensure that the activities covered by each CE have no
potential for significant effects on the environment under normal
circumstances.
[E1.] ``Activities conducted in laboratories and facilities where
research practices and safeguards prevent environmental impacts.''
[E2.] ``Social science projects and programs, including economic,
political science, human geography, demography, and sociology studies,
including information collection activities in support of studies.''
[E3.] ``Activities to collect aquatic, terrestrial, and atmospheric
data in a non-destructive manner.''
[[Page 81071]]
[E4.] ``Activities that survey or observe living resources in the
field with little to no potential to adversely affect the environment
or interfere with organisms or habitat.''
[E5.] ``Activities involving invasive techniques or methods that
are conducted for scientific purposes, when such activities are
conducted in accordance with all applicable provisions of the
Endangered Species Act, Marine Mammal Protection Act, Migratory Bird
Treaty Act, and Magnuson-Stevens Fishery Conservation and Management
Act. Such activities will be limited to impacting living resources on a
small scale relative to the size of the populations, and limited to
methodologies and locations to ensure that there are no long-term
adverse impacts to benthic habitats, essential fish habitat, critical
habitat, or listed species.''
[E6.] ``Research that involves the development and testing of new
and modified fishing gear and technology in order to reduce adverse
effects from fishing gear on non-target species.''
[E7.] ``Collection of data and biological samples on fishing
vessels or dockside as part of previously authorized commercial and/or
recreational fishing activities.''
[E8.] ``Biological, chemical, or toxicological research conducted
in closed system mesocosm/aquaculture facilities that are conducted
according to recommended protocols that provide containment and
disposal of chemicals, toxins, non-native species, etc., in compliance
with established Federal and state regulatory guidelines, and best
management practices.''
Real and Personal Property Improvement, Maintenance, and Construction
Actions
[F1.] ``Siting, construction (or modification), and operation of
support buildings and support structures (including, but not limited
to, trailers and prefabricated buildings) within or contiguous to an
already developed area (where active utilities and currently used roads
are readily accessible).''
NOAA proposes a new CE to cover activities to place and operate
trailers, modular buildings, storage buildings, or shipping units
within or contiguous to an already developed area.
[F2.] ``In-kind replacement of personal property and fixtures and
other components of real property when such activities do not result in
a substantial change in the existing construction footprint. In-kind
replacement includes installation of new components to replace outmoded
components if the replacement does not result in a substantial change
to the design capacity, or function of the facility.''
NOAA proposes to make minor revisions to CE 6.03c.3(e) by breaking
out a component of this CE into a separate CE. NOAA's use of the
language ``In-kind replacement includes installation of new components
to replace outmoded components if the replacement does not result in a
substantial change to the design capacity, or function of the
facility'' further clarifies the CE. The proposed changes and revisions
do not result in any change in scope or applicability from the CEs in
the 1999 NAO.
[F3.] ``(a) Routine repair, maintenance, and improvement of real
and personal property, where such activities are required to maintain
and preserve buildings, structures, infrastructures, vehicles, and
equipment in a condition suitable to be used for its designed purpose.
(b) New construction, expansion and/or improvement of facilities
where all of the following conditions are met:
(1) The site is in a developed area and/or a previously disturbed
site;
(2) The structure and proposed use are compatible with applicable
Federal, Tribal, State, and local planning and zoning standards and
consistent with Federally approved State coastal management programs
and the National Historic Preservation Act;
(3) The proposed use will not substantially increase the number of
motor vehicles, marine vessels, or aircraft at the facility or in the
area;
(4) The site and scale of construction or improvement are
consistent with those of existing, adjacent, or nearby buildings;
(5) The construction or improvement will not result in uses that
exceed existing infrastructure capacities (e.g., electrical, roads,
sewer, water, parking);
(6) The construction or improvement will not result in operational
uses that adversely affect the surrounding community (e.g., noise); and
(7) The community-valued view sheds are not adversely affected.
(c) Installation, repair, maintenance, and enhancement of public
access facilities and infrastructure, if the activity:
(1) Is small-scale and nondestructive;
(2) Is consistent with applicable right-of-way conditions and
approved land use plans; and
This CE does not apply where the project must be submitted to the
National Capital Planning Commission (NCPC) for review and NCPC
determines that it does not have an applicable Categorical Exclusion.''
NOAA proposes to break out and merge several portions of the
following CEs: 6.03c.3(c) ``minor improvements to an existing site
(e.g., fences, roads, picnic facilities, etc.)''; 6.03c.3(e) ``routine
facility maintenance and repair''; 6.03c.3(f); 6.03c.3(g); and,
6.03c.3(i) ``routine maintenance.'' The proposed changes and revisions
clarify the scope and applicability of the CE.
[F4]. ``Routine groundskeeping and landscaping activities where
ground disturbance is limited to previously disturbed areas (e.g.,
previously filled paved, or cleared areas).''
NOAA proposes to make minor revisions to CE 6.03c.3(e) by breaking
out a portion of this CE into a separate CE. These types of actions are
already covered in the portion of CE 6.03c.3(e) in ``grounds-keeping
activities.'' The CE is limited to activities where ground disturbance
is limited to previously disturbed areas. The proposed revisions do not
result in a substantial change in scope or applicability from the CE in
the 1999 NAO.
[F5.] ``Installation, operation, maintenance, improvements, repair,
upgrade, removal, and/or replacement of instruments or instrument
systems in or on:
1. An existing structure or object (e.g., tower, antenna, building,
pier, buoy, terrestrial vehicle, or bridge) or
2. On previously disturbed (e.g., filled, paved, or cleared)
ground, or
3. On undisturbed ground, if the equipment installation, operation,
and removal will require no or minimal ground disturbance.''
Microwave/radio communications towers and antennas must be limited
to 200 feet in height without guy wires. NOAA proposes a new CE to
cover activities of installing, operating, repairing, maintaining,
upgrading, removing and/or replacing instruments or instrument systems
in or on an existing structure or object, or on previously disturbed
ground or on undisturbed ground that involve either no or minimal
ground disturbance.
[F6.] ``The determination that real property is excess to the needs
of the Agency, when the real property is excessed in conformity with
General Services Administration procedures or is legislatively
authorized to be excessed.''
NOAA proposes a new CE to cover declarations of real property as
excess in conformance with General Services Administration procedures
or as legislatively authorized.
[F7.] ``The disposal, demolition or removal of real property and
related improvements, buildings and structures, including associated
site restoration,
[[Page 81072]]
and the disposal of personal property and debris in accordance with all
applicable agency procedures and legal requirements.''
NOAA proposes a new CE to cover the disposal, demolition or removal
of real property and related improvements, buildings and structures,
including associated restoration, and the disposal of property and
debris in accordance with all applicable Agency procedures.
Operation Actions
[G1.] ``Routine administrative actions such as (1) program
planning, direction and evaluation, (2) administrative tasks, services
and support including personnel and fiscal management, advisory
services, document and policy preparation, and records management, and
(3) development, establishment, and revisions to documents including,
but not limited to interagency agreements, memoranda of understanding,
memoranda of agreement, cooperative agreements, and university
agreements. This CE does not include any associated activities proposed
in these documents beyond the administrative task of creating and
establishing the document. Actions subsequently funded by or undertaken
pursuant to the approved documents may require additional NEPA review
at the time those actions are proposed.''
NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly
cover program planning, direction and evaluation; administrative tasks;
development, establishment and revisions to administrative documents,
including interagency agreements, memoranda of understanding, memoranda
of agreement, cooperative agreements, and university agreements. Many
of these types of activities are already covered in the portion of the
1999 NAO 6.03c.3(d) in ``program planning and budgeting, including
strategic planning and operational planning . . . executive direction;
administrative services.'' The proposed revision to break out a portion
of the 1999 CE does not result in a significant change in scope or
applicability from the CE in the 1999 NAO.
[G2.] ``Routine movement of mobile assets, such as vessels and
aircraft, for homeport reassignments or repair/overhaul, where no new
support facilities are required.''
NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly
cover routine movement of mobile assets. These types of activities are
already covered in the portion of the 1999 NAO 6.03c.3(d) in ``ship and
aircraft operations.'' The CE is limited to the routine movement of
mobile assets for homeport reassignments or repair/overhaul, where no
new support facilities to ensure that activities encompassed by the CE
have no potential for significant effects on the environment under
normal circumstances.
[G3.] ``Topographic, bathymetric, land use and land cover,
geological, hydrologic mapping, charting, and surveying services that
do not involve major surface or subsurface land disturbance and involve
no permanent physical, chemical, or biological change to the
environment.''
NOAA proposes to break out and revise a portion of CE 6.03c.3(d) to
cover certain mapping and surveying services and activities. Many of
these types of activities are already covered in the portion of the
1999 NAO 6.03c.3(d) in ``mapping, charting, and surveying services.''
The CE is limited to activities that do not involve major surface or
subsurface land disturbance and involve no permanent physical,
chemical, or biological change to environment. The Working Group
determined these limitations were necessary to ensure the activities
encompassed by the CE have no potential for significant effects on the
environment under normal circumstances.
[G4.] ``Basic environmental services and monitoring, such as
weather observations, communications, analyses, and predictions;
environmental satellite operations and services; digital and physical
environmental data and information services; air and water quality
observations and analysis, and IT operations. All such activities must
be conducted within existing facilities.''
[G4.] ``Basic environmental services and monitoring, such as
weather observations, communications, analyses, and predictions;
environmental satellite operations and services; digital and physical
environmental data and information services; air and water quality
observations and analysis, and IT operations. All such activities must
be conducted within existing facilities.''
NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly
cover environmental satellite and environmental data and information
service activities, environmental service activities, and air quality
observations and analysis activities. These types of activities are
already covered in the portion of the 1999 NAO 6.03c.3(d) in ``basic
environmental services and monitoring, such as weather observations,
communications, analyses, and predictions; environmental satellite
services; environmental data and information services;'' and ``air
quality observations and analysis.'' The proposed revision to break out
a portion of the 1999 CE does not result in any change in scope of
applicability from the CE in the 1999 NAO.
[G5.] ``Enforcement operations conducted under legislative mandate
such as the MSA, ESA, MMPA, the Lacey Act Amendments of 1981 (Lacey),
and/or the National Marine Sanctuaries Act. This does not include
bringing judicial or administrative civil or criminal enforcement
actions which are outside the scope of NEPA in accordance with 40 CFR
1508.18(a).''
NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly
cover enforcement operations. These types of actions are already
covered in the portion of the 1999 NAO 6.03c.3(d) in ``enforcement
operations.'' As noted in the language of the CE, 40 CFR 1508.18(a)
provides that major federal actions subject to NEPA do not include
``bringing judicial or administrative civil or criminal enforcement
actions.'' Accordingly, this CE only covers those enforcement
operations outside of this scope that would not otherwise be excluded
from NEPA. The proposed revision to break out a portion of the 1999 CE
does not result in any change in scope or applicability from the CE in
the 1999 NAO.
[G6.] ``Actions that change the NEXRAD radar coverage patterns that
do not lower the lowest scan elevation and do not result in direct
scanning of previously non-scanned terrain by the NEXRAD main beam.''
NOAA proposes no substantive changes to CE 6.03c.3(h). The phrase
``actions that'' was added for grammatical reasons. The proposed
revision to break out a portion of the 1999 CE does not result in any
change in scope or applicability from the CE in the 1999 NAO.
[G7.] ``Preparation of policy directives, rules, regulations, and
guidelines of an administrative, financial, legal, technical, or
procedural nature, or for which the environmental effects are too
broad, speculative or conjectural to lend themselves to meaningful
analysis and will be subject later to the NEPA process, either
collectively or on a case-by-case basis.''
NOAA proposes to break out a portion of CE 6.03c.3(i) to explicitly
cover policy directives, order, regulations, and guidance. These types
of activities are already covered in the portion of the 1999 NAO
6.03c.3(i) in ``preparation of regulations, Orders, manuals or other
guidance that implement, but do not substantially change these
documents''
[[Page 81073]]
and ``policy directives, regulations, and guidelines of an
administrative financial, legal, technical, or procedures nature, or
the environmental effects of which are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will be
subject later to the NEPA process, either collectively or case-by-
case.'' The proposed revision to break out a portion of the 1999 CE
does not result in any change in scope or applicability from the CE in
the 1999 NAO.
[G8.] ``Activities that are educational, informational, or advisory
to other agencies, public and private entities, visitors, individuals,
or the general public, including training exercises and simulations.''
NOAA proposes to break out a portion of CE 6.03c.3(i) to explicitly
cover educational, informational, advisory, and consultative
activities. These types of activities are already covered in the
portion of the 1999 NAO 6.03c.3(i) in ``activities which are
educational, informational, advisory, or consultative to other
agencies, public and private entities, visitors, individuals or the
general public.'' The Working Group determined that expressly including
training exercises and simulations in the text of the CE clarified its
scope and applicability for decision makers. The proposed revision to
break out a portion of the 1999 CE does not result in any change in
scope or applicability from the CE in the 1999 NAO.
[G9.] ``Actions taken to identify, determine sources of, assess,
prevent, reduce, remove, dispose, or recycle marine debris when removal
is undertaken in a non-destructive manner and actions are in accordance
with Federal, State, and local laws and regulations for environmental
protection, and where all relevant regulatory consultation, and/or
permit requirements have been satisfied.''
NOAA proposes a new CE to cover actions taken to identify,
determine sources of, assess, prevent, reduce, remove, dispose, or
recycle marine debris. The CE is limited by the requirement that
actions encompassed by the CE must be undertaken in a non-destructive
manner and in accordance with Federal, State, and local laws and
regulations for environmental protection and all relevant regulatory
consultation and/or permit requirements have been satisfied.
Acquisition and Leasing Actions
[H1.] ``Procurement of labor, equipment, materials, data and
software needed to execute mission requirements in accordance with
applicable procurement regulations, executive orders, and policies.
This includes, but is not limited to, procurement of mobile and
portable equipment that is stored in existing structures or
facilities.''
NOAA proposes to break out a portion of CE 6.03c.3(e) and broaden
the coverage of the CE to include activities to procure labor,
equipment, materials, and software necessary to execute NOAA's mission,
including, but not limited to the purchase of mobile and portable
equipment to be stored in existing structures or facilities. A portion
of these activities are already covered in the portion of the 1999 NAO
6.0303.c(e) in ``procurement contracts for NEPA documents.''
[H2.] ``Procurement of space by purchase or lease of or within an
existing facility or structure in accordance with applicable
procurement regulations, executive orders, and policies when there is
no change in the general type of use, no new construction of buildings
or utilities, and minimal change in design from the previous occupancy
level.''
NOAA proposes to break out a portion of CE 6.03c.3(e) to explicitly
cover procurement by purchase or lease of space within a previously
occupied structure. These types of activities are already covered in
the portion of the 1999 NAO 6.03c.3(e) in ``acquisitions of space
within an existing previously occupied structure, either by purchase or
lease, where no change in the general type or use and minimal change
from previous occupancy level is proposed.'' The proposed revision to
break out a portion of the 1999 CE does not result in any change in
scope or applicability from the CE in the 1999 NAO.
[H3.] ``Outgranting of government-controlled property in accordance
with applicable regulations, executive orders, and policies to a
Federal entity for any purpose consistent with the existing land or
facility use or to a non-Federal entity, when the use will remain
substantially the same.''
NOAA proposes to break out a portion of the CE in the 1999 NAO
6.03c.3(e) to explicitly cover outgranting of government-controlled
space. These types of activities are already covered in the portion of
the 1999 NAO 6.03c.3(e) in ``out-lease or license of government-
controlled space, or sublease of government-leased space to a non-
Federal tenant when the use will remain substantially the same.'' The
proposed revision to break out a portion of the 1999 CE does not result
in any change in scope or applicability from the CE in the 1999 NAO;
the change in terminology from ``out-lease'' to outgranting is intended
to more accurately capture the type of action covered.
[H4.] ``Acquisition of real property (including fee simple estates,
leaseholds, and easements) that is not acquired through condemnation of
a lease interest, and will not result in significant change in use and
does not involve construction or modification.''
NOAA proposes to break out a portion of the CE in the 1999 NAO
6.03c.3(e) to explicitly cover procurement and lease of land. These
types of activities are already covered in the portion of the 1999.
NAO 6.03c.3(e) in ``acquisition of land which is not in a
floodplain or other environmentally sensitive area and does not result
in condemnation.'' NOAA proposes to remove the portion of the CE
explicitly stating ``which is not in a floodplain or other
environmentally sensitive area.'' NOAA revised its extraordinary
circumstances to include environmental, historic, or cultural unique
areas and floodplains, and therefore no longer required the text to be
explicit within this CE. The proposed revision to break out a portion
of the 1999 CE does not result in any change in scope or applicability
from the CE in the 1999 NAO.
[H5.] ``Granting easements or rights of entry to use NOAA
controlled property for activities that, if conducted by NOAA, could be
categorically excluded. Grants of easements or rights-of-way for the
use of NOAA controlled real property complementing the use of existing
rights-of-way or real property use for use by vehicles (not to include
significant increases in vehicle loading); electrical, telephone, and
other transmission and communication lines; water, wastewater,
stormwater, and irrigation pipelines, pumping stations, and facilities;
and similar utility and transportation uses.''
NOAA proposes to create a new categorical exclusion to encompass
the activity of granting an easement or right of entry to use NOAA-
controlled property for activities that could be categorically excluded
if conducted by NOAA.
[H6.] ``Relocation of employees into existing Federally-owned or
commercially leased office space within the same metropolitan area not
involving a substantial increase in the number of motor or other
vehicles at a facility.''
NOAA proposes to break out a portion of CE 6.03c.3(e) to explicitly
cover relocation of employees. These types of actions are already
covered in the portion of the 1999 NAO 9.03c.3(e) in ``relocation of
employees into existing Federally-owned or commercially
[[Page 81074]]
leased office space within the same metropolitan area not involving a
substantial number of employees or a substantial increase in the number
of motor vehicles at a facility.'' The proposed revision to break out a
portion of the 1999 CE does not result in any change in scope or
applicability from the CE in the 1999 NAO.
[H7.] ``Transferring real property to a non-Federal entity, an
agency other than GSA, as well as to States, local agencies and Indian
Tribes, including return of public domain lands to the Department of
the Interior.''
NOAA proposes a new CE to cover the transfer of real property to a
federal agency other than the General Services Administration as well
as to a non-Federal entity, including States, local agencies, and
Indian tribes. This proposed CE also applies to the return of public
domain lands to the Department of the Interior.
Dated: November 9, 2016.
Lois J. Schiffer,
General Counsel, National Oceanic and Atmospheric Administration.
[FR Doc. 2016-27567 Filed 11-16-16; 8:45 am]
BILLING CODE 3510-12-P