National Environmental Policy Act: Agency Procedures for Categorical Exclusions

DEPARTMENT OF TRANSPORTATION

Coast Guard

[CGD 93-090]

National Environmental Policy Act: Agency Procedures for

Categorical Exclusions

AGENCY: Coast Guard, DOT.

ACTION: Notice of final agency procedures and policy for categorical

exclusions.

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SUMMARY: The Coast Guard is revising its procedures and policies

concerning agency actions which do not individually or cumulatively

have a significant effect on the human environment. Under the National

Environmental Policy Act, these actions are categorically excluded from

the requirement that the proposed action undergo the additional

analysis that accompanies preparation of an Environmental Assessment or

an Environmental Impact Statement. This revision eliminates overly

expansive and inconsistent interpretations of existing policies and

procedures, aligns them with Categorical Exclusions of other agencies,

reduces paperwork and delays, and produces better decision processes.

FOR FURTHER INFORMATION CONTACT:

Ms. Bonnie Gallahan, Environmental Compliance and Restoration Branch

(G-ECV-1B), (202) 267-6034).

SUPPLEMENTARY INFORMATION:

Background and Purpose

Under regulations implementing the National Environmental Policy

Act (NEPA) (40 CFR parts 1500 through 1508), each Federal agency is

required to adopt procedures to supplement those regulations (40 CFR

1507.3). The Coast Guard's procedures and policies are published as a

Commandant instruction entitled ``National Environmental Policy Act

Implementing Procedures and Policy for Considering Environmental

Impacts'' (COMDTINST M16475.1 series). In this notice, the Coast Guard

is announcing the revision of section 2.B.2. of the instruction

concerning Categorical Exclusions (CE). CEs are those categories of

actions which may be taken by the Coast Guard without the analysis and

documentation required for an Environmental Assessment (EA) or an

Environmental Impact Statement (EIS).

This is a complete revision of the instructions on CEs. It

identifies the categories subject to exclusion with greater precision

(paragraph 2.B.2.e), it provides criteria for screening an action which

falls under an excluded category but which might otherwise warrant

additional environmental review (paragraph 2.B.2.b), and it adds

procedures for identifying new categories for future CEs (paragraph

2.B.2.a).

Discussion of Comments and Changes

The revision was published as a proposal for public review and

comment under 40 CFR 1507.3, after consultation with the Council on

Environmental Quality (CEQ), in 59 FR 3152 through 3155 (January 20,

1994). Comments were received from two private individuals, an industry

group, a State agency and a Federal agency.

The comments focused on documentation requirements (preparation of

an environmental analysis checklists or Categorical Exclusion

Determination (CED)). The suggestions fell into two groups, some

suggested the elimination of all documentation requirements and others

requested requiring checklists and CEDs for all CEs. In keeping with

the spirit and intent of NEPA, the CEQ regulations, and Executive

Orders 11514 and 11991, this revision is intended ``to reduce paperwork

and the accumulation of extraneous background data.'' Consequently, the

requirement to complete and submit environmental checklists has been

minimized. Future revisions will address the possibility of further

reducing the number of CEs requiring checklists. The section on

documentation (section 2.B.2.c.) has also been revised to clarify the

situations when a Categorical Exclusion Determination (CED) is

required. The CED requirement for regulations is consistent with the

COMDTINST provision (section 2.A.3.) that requires documentation for

Coast Guard regulatory actions.

Several comments received focused on either expanding or limiting

the situations in which use of a CE would be appropriate. Many such

comments were considered unnecessary because the list of CEs (section

2.B.2.e.) can only be applied in conjunction with the limitations

(section 2.B.2.b.). For example, complying with current Federal, State,

or local laws or requirements is specified in the limitations section

and not repeated in every CE. In the same way, cumulative and

incremental impacts or effects must be considered when determining

whether the limitation in subsection 2.B.2.b.(6) precludes application

of a CE to a specific action.

The section describing compliance with other laws (section

2.B.2.d.) has, in consideration of comments received from the

Department of the Interior, been expanded to include requirements set

forth in agreements. Therefore, Coast Guard personnel are responsible

for ensuring compliance with any Memorandum of Agreement (MOA) or

Memorandum of Understanding (MOU) with other agencies or entities.

Additional revisions to specific CEs are as follows:

CE (1): ``Training'' was eliminated from the types of actions

listed here because it created the possibility of confusion and

ambiguity due to its redundant nature with CEs (18) through (21) which

specifically cover training activities.

CE (12): The checklist requirement was kept for vessels and

aircraft to insure major disposal actions receive additional attention.

This is one example of a category requiring an environmental analysis

checklist that will be addressed in future revisions.

CE (13): This was clarified to address situations where the

National Historic Preservation Act (NHPA) section 106 process

determines there is no effect. This CE may still be used if there is a

consensus that no impact will occur. Furthermore, the limitation set

out in 2.B.2.b.(7) reinforces the requirement to comply with the NHPA.

CE (18): Comments questioned the proposed revision's clarity in

requiring NEPA compliance by lead agencies. This final revision makes

it clear that the lead agency must meet its NEPA requirements prior to

Coast Guard participation in defense preparedness training and

exercises.

CE (23): The words ``and the Aids to Navigation Program'' were

added to address concerns that the original proposal would not

encompass the placing of aids to navigation by private parties under

the Coast Guard Aids to Navigation Program. As revised, this CE

includes and treats privately placed aids in the same manner as aids

placed by the Coast Guard.

CE (32): Comments received regarding the provision for the Bridges

Program expressed concern regarding the lack of reference to carrying

capacity and the exclusion of ``bridges with historic significance or

bridges providing access to undeveloped barrier islands and beaches.''

The exclusion was explicitly stated to focus attention on two issues

that arise on a recurring basis. The sections describing limitations on

the use of CEs require the parties responsible for environmental

analysis and documentation to consider, pursuant to section

2.B.2.b.(2), the unique characteristics of the geographic area, such as

proximity to historic or cultural resources, wetlands, and ecologically

critical areas. Section 2.B.2.b(7) requires consideration of the

effects on structures that are listed in, or eligible for listing in,

the National Register of Historic Places or that may cause loss or

destruction of significant cultural or historical resources. Use of the

limitations section also addresses the concern over incremental changes

that involve carrying capacity. Specifically, the limitation on

``individually insignificant, but cumulatively significant, impact''

(2.B.2.b.(6)), in conjunction with the requirements that all NEPA

analyses consider connected, cumulative, and similar actions (50 CFR

1508.25) and direct, indirect, and cumulative effects (50 CFR 1508.7

and 1508.8) ensure that carrying capacity will be considered.

CE (34): The Advanced Notice of Proposed Rule Making and Interim

Rule are added to the list of regulatory actions requiring completion

of an Environmental Analysis Checklist and preparation of a CED,

because completion of the CE process applies to all regulatory actions.

New subsections (a) through (e) were included in proposed subsection

(a), the general description of editorial, procedural, or

administrative regulations. The new subsections more clearly delineate

and describe the types of regulations that qualify for CEs. New

subsections (f) and (g) are revisions of subsections (b) and (c). The

requirement to prepare a checklist unless the size of the Area, ground,

or zone is being increased has been eliminated. Furthermore, subsection

(g) has been revised to explicitly refer to Regulated Navigation Areas

(RNAs) which are promulgated under 33 CFR part 165. In addition, no

documentation is required for temporary areas or zones that are of

limited duration and that were established to deal with emergency

situations. New subsection (i), a revision of proposed subsection (e),

uses the term ``rules of the road'' to include Shipping Safety Fairways

promulgated under 33 CFR part 166 and International Regulations for the

Prevention of Collisions at Sea (COLREGS) established under the

auspices of the International Maritime Organization.

CE (35): Several comments concerned the regatta and marine parade

permit provisions. The comments suggested changes ranging from greatly

expanding the actions qualifying for the CE to drastically contracting

the actions. The provision, as proposed, reflected the need to strike a

balance in favor of a CE that recognizes current experience and

provides flexibility to field units and commanders issuing the permits.

It allows field units and commanders to assess the impacts based upon

site-specific circumstances, such as the characteristics of the body of

water, the proximity to environmentally sensitive areas, and the actual

numbers of participants and spectators involved. The CEs, when read and

applied in conjunction with the limitations section, the statute, the

CEQ regulations, provide reasonable parameters. Therefore, the

provision as drafted is unchanged.

For the reasons set out in the preamble, the Coast Guard amends

section 2.B.2. of COMDTINST M16475.1B as follows:

2.B. Environmental Documentation.

* * * * *

2. Categorical Exclusions (CE).

a. Introduction

As defined by the Council on Environmental Quality (CEQ), a

``categorical exclusion'' or ``CE'' means a category of actions which

do not individually or cumulatively have a significant effect on the

human environment and for which, therefore, neither an Environmental

Assessment (EA) nor an Environmental Impact Statement (EIS) is

required. The use of a CE is intended to reduce paperwork and delay by

eliminating the unnecessary preparation of EAs and EISs. The CEs listed

below are subject to review and any suggested modifications should be

provided to COMDT (G-ECV). Additional CEs should be suggested when it

becomes clear, through the preparation of EAs, that Findings of No

Significant Impact (FONSI) result after numerous analyses of similar

types of actions.

b. Limitations on Using Categorical Exclusions

Some actions that normally would be categorically excluded under

section 2.B.2.e. could require additional environmental review and, for

this reason, responsible personnel should be alert for circumstances

that dictate the need to prepare an EA or EIS.

A determination of whether an action that is normally excluded

requires additional review must focus on the action's significance. The

proposed action must be evaluated in its context (whether local, State,

regional, tribal, national, or international) and in its intensity by

considering whether the action is likely to involve one or more of the

following:

(1) An adverse effect on public health or safety.

(2) A site that includes or is near a unique characteristic of the

geographic area, such as a historic or cultural resource, park land,

prime farmland, wetland, wild and scenic river, ecologically critical

area, or property requiring special consideration under 49 U.S.C.

303(c). [Section 303(c) of Title 49 U.S.C. is commonly referred to as

section 4(f) of the Department of Transportation (DOT) Act which

includes any land from a public park, recreation area, wildlife and

waterfowl refuge, or historic site].

(3) An effect on the quality of the human environment that is

likely to be highly controversial, in terms of scientific validity or

public opinion.

(4) An effect on the human environment that is highly uncertain or

involves unique or unknown risks.

(5) A precedent for future actions with significant effects or a

decision in principle about a future consideration.

(6) An individually insignificant, but cumulatively significant,

impact when considered along with other past, present, and reasonably

foreseeable future actions.

(7) An adverse effect on a district, site, highway, structure, or

object that is listed in or eligible for listing in the National

Register of Historic Places, or the loss or destruction of a

significant scientific, cultural, or historical resource.

(8) An adverse effect on species or habitats protected by the

Endangered Species Act.

(9) A potential or threatened violation of a Federal, State, or

local law or requirement imposed for the protection of the environment.

(10) An impact that may be both beneficial and adverse. A

significant impact may exist even if it is believed that, on balance,

the effect will be beneficial.

In addition, a CE may not be used if the proposed action is likely

to involve any of the circumstances set forth in section 20.b.(2) of

DOT Order 5610.1 series (Enclosure 1). The ten listed circumstances and

those in the DOT Order are addressed in the Environmental Analysis

Checklist (Enclosure 10).

If a CE is not appropriate, an EA or an EIS must be prepared.

c. Documentation

When the specific CE requires that a checklist be completed, an

environmental analysis checklist (Enclosure 10) will be completed and

used to substantiate the use of the CE. The checklist must be submitted

with, and accompany, the proposal for the action. If a CE is not

appropriate, the environmental analysis checklist will be used for

developing an EA or EIS.

A written Categorical Exclusion Determination (CED) (Enclosure 6)

must be prepared when a CE is being relied upon to promulgate a

regulation that requires an environmental checklist.

Checklists and CEDs supplementary to the requirements of this

Instruction may be developed by subordinate commands for specific types

of actions. Those documents must be approved by G-ECV before they are

adopted for use.

d. Compliance With Other Laws and Requirements

Even though an EA or EIS may not be indicated for a Federal action

because of a CE, that fact does not exempt the action from compliance

with any other Federal law or any review or consultation requirements

contained in any applicable agreement. For example, compliance with the

Endangered Species Act, the Fish and Wildlife Coordination Act, the

National Historic Preservation Act, the Clean Water Act, the Clean Air

Act (conformity requirements), etc. is always mandatory, even for

actions that do not require an EA or EIS.

e. Categorical Exclusion List

The following are actions that, unless consideration of the factors

in section 2.B.2.b. trigger the need to conduct further analysis, are

categorically excluded from further analysis and documentation

requirements under NEPA. (Note: Unless otherwise indicated, completion

of an environmental checklist (Enclosure 10) and preparation of a CED

(Enclosure 6) is not required):

(1) Routine personnel, fiscal, and administrative activities,

actions, procedures, and policies which clearly do not have any

environmental impacts, such as military and civilian personnel

recruiting, processing, paying, and recordkeeping.

(2) Routine procurement activities and actions for goods and

services, including office supplies, equipment, mobile assets, and

utility services for routine administration, operation, and

maintenance.

(3) Maintenance dredging and debris disposal where no new depths

are required, applicable permits are secured, and disposal will be at

an existing approved disposal site. (Checklist required).

(4) Routine repair, renovation, and maintenance actions on aircraft

and vessels.

(5) Routine repair and maintenance of buildings, roads, airfields,

grounds, equipment, and other facilities which do not result in a

change in functional use, or an impact on a historically significant

element or setting.

(6) Minor renovations and additions to buildings, roads, airfields,

grounds, equipment, and other facilities which do not result in a

change in functional use, a historically significant element, or

historically significant setting. (Checklist required).

(7) Routine repair and maintenance to waterfront facilities,

including mooring piles, fixed floating piers, existing piers, and

unburied power cables.

(8) Minor renovations and additions to waterfront facilities,

including mooring piles, fixed floating piers, existing piers, and

unburied power cables, which do not require special, site-specific

regulatory permits. (Checklist required).

(9) Routine grounds maintenance and activities at units and

facilities. Examples include localized pest management actions and

actions to maintain improved grounds (such as landscaping, lawn care

and minor erosion control measures) that are conducted in accordance

with applicable Federal, State and local directives.

(10) Installation of devices to protect human or animal life, such

as raptor electrocution prevention devices, fencing to restrict

wildlife movement on to airfields, and fencing and grating to prevent

accidental entry to hazardous areas. (Checklist required).

(11) New construction on heavily developed portions of Coast Guard

property, when construction, use, and operation will comply with

regulatory requirements and constraints. (Checklist required).

(12) Decisions to decommission equipment or temporarily discontinue

use of facilities or equipment. This does not preclude the need to

review decommissioning under section 106 of the National Historic

Preservation Act. (Checklist required for vessels and aircraft).

(13) Demolition or disposal actions that involve buildings or

structures when conducted in accordance with regulations applying to

removal of asbestos, PCB's, and other hazardous materials, or disposal

actions mandated by Congress. In addition, if the building or structure

is listed, or eligible for listing, in the National Register of

Historic Places, then compliance with section 106 of the National

Historic Preservation Act is required. (Checklist required).

(14) Outleasing of historic lighthouse properties as outlined in

the Programmatic Memorandum of Agreement between the Coast Guard,

Advisory Council on Historic Preservation, and the National Conference

of State Historic Preservation Officers. (Checklist required).

(15) Transfer of real property from the Coast Guard to the General

Services Administration, Department of the Interior, and other Federal

departments and agencies, or as mandated by Congress; and the granting

of leases, permits, and easements where there is no substantial change

in use of the property. (Checklist required).

(16) Renewals and minor amendments of existing real estate licenses

or grants for use of government-owned real property where prior

environmental review has determined that no significant environmental

effects would occur.

(17) New grants or renewal of existing grants of license, easement,

or similar arrangements for the use of existing rights-of-way or

incidental easements complementing the use of existing rights-of-way

for use by vehicles; for such existing rights-of-way as electrical,

telephone, and other transmission and communication lines; water,

wastewater, stormwater, and irrigation pipelines, pumping stations, and

facilities; and for similar utility and transportation uses. (Checklist

required).

(18) Defense preparedness training and exercises conducted on other

than Coast Guard property, where the lead agency or department is not

Coast Guard or DOT and the lead agency or department has completed its

NEPA analysis and documentation requirements.

(19) Defense preparedness training and exercises conducted on Coast

Guard property that do not involve undeveloped property or increased

noise levels over adjacent property and that involve a limited number

of personnel, such as exercises involving primarily electronic

simulation or command post personnel.

(20) Simulated exercises, including tactical and logistical

exercises that involve small numbers of personnel.

(21) Training of an administrative or classroom nature.

(22) Operations to carry out maritime safety, maritime law

enforcement, search and rescue, domestic ice breaking, and oil or

hazardous substance removal programs that have been the subject of a

programmatic NEPA analysis and documentation.

(23) Actions performed as a part of Coast Guard operations and the

Aids to Navigation Program to carry out statutory authority in the area

of establishment of floating and minor fixed aids to navigation, except

electronic sound signals.

(24) Routine movement of personnel and equipment, and the routine

movement, handling, and distribution of nonhazardous and hazardous

materials and wastes in accordance with applicable regulations.

(25) Coast Guard participation in disaster relief efforts under the

guidance or leadership of another Federal agency that has taken

responsibility for NEPA compliance.

(26) Data gathering, information gathering, and studies that

involve no physical change to the environment. Examples include

topographic surveys, bird counts, wetland mapping, and other

inventories.

(27) Natural and cultural resource management and research

activities that are in accordance with interagency agreements and which

are designed to improve or upgrade the Coast Guard's ability to manage

those resources.

(28) Contracts for activities conducted at established laboratories

and facilities, to include contractor-operated laboratories and

facilities, on Coast Guard-owned property where all airborne emissions,

waterborne effluents, external radiation levels, outdoor noise, and

solid and bulk waste disposal practices are in compliance with existing

applicable Federal, State, and local laws and regulations. (Checklist

required).

(29) Approval of recreational activities (such as a Coast Guard

unit picnic) which do not involve significant physical alteration of

the environment, increase disturbance by humans of sensitive natural

habitats, or disturbance of historic properties, and which do not occur

in, or adjacent to, areas inhabited by threatened or endangered

species. (Checklist required unless the activity will take place at a

location developed or created for that type of activity).

(30) Review of documents, such as studies, reports, and analyses,

prepared for legislative proposals that did not originate in DOT and

that relate to matters that are not the primary responsibility of the

Coast Guard.

(31) Planning and technical studies which do not contain

recommendations for authorization or funding for future construction,

but may recommend further study. This includes engineering efforts or

environmental studies undertaken to define the elements of a proposal

or alternatives sufficiently so that the environmental effects may be

assessed and does not exclude consideration of environmental matters in

the studies.

(32) Bridge Administration Program actions which can be described

as one of the following:

(a) Modification or replacement of an existing bridge on

essentially the same alignment or location. Excluded are bridges with

historic significance or bridges providing access to undeveloped

barrier islands and beaches.

(b) Construction of pipeline bridges for transporting potable

water.

(c) Construction of pedestrian, bicycle, or equestrian bridges and

stream gauging cableways used to transport people.

(d) Temporary replacement of a bridge immediately after a natural

disaster or a catastrophic failure for reasons of public safety,

health, or welfare.

(e) Promulgation of operating regulations or procedures for

drawbridges. (Checklist required).

(f) Identification of advance approval waterways under 33 CFR

115.70.

(g) Any Bridge Program action which is classified as a CE by

another Department of Transportation agency acting as lead agency for

such an action.

(33) Preparation of guidance documents that implement, without

substantive change, the applicable Commandant Instruction or other

Federal agency regulations, procedures, manuals, and other guidance

documents.

(34) Promulgation of the following regulations: (Note: When relying

upon a CE in promulgating regulations, an environmental analysis

checklist and an attached CED (Enclosure 6) must be filed in the

rulemaking docket before publication of a Notice of Proposed Rulemaking

(NPRM), or an Interim or Final Rule not preceded by an NPRM, unless

specifically indicated below.)

(a) Regulations which are editorial or procedural, such as those

updating addresses or establishing application procedures.

(b) Regulations concerning internal agency functions or

organization or personnel administration, such as funding, establishing

Captain of the Port boundaries, or delegating authority.

(c) Regulations concerning the training, qualifying, licensing, and

disciplining of maritime personnel.

(d) Regulations concerning manning, documentation, admeasurement,

inspection, and equipping of vessels.

(e) Regulations concerning equipment approval and carriage

requirements.

(f) Regulations establishing, disestablishing, or changing the size

of Special Anchorage Areas or anchorage grounds. (Checklist and CED not

required for actions that disestablish or reduce the size of the Area

or grounds).

(g) Regulations establishing, disestablishing, or changing

Regulated Navigation Areas and security or safety zones. (Checklist and

CED not required for actions that disestablish or reduce the size of

the area or zone. For temporary areas and zones that are established to

deal with emergency situations and that are less than one week in

duration, the checklist and CED are not required. For temporary areas

and zones that are established to deal with emergency situations and

that are one week or longer in duration, the checklist and CED will be

prepared and submitted after issuance or publication.)

(h) Special local regulations issued as a condition of a granted

regatta or marine parade permit that was issued after appropriate

environmental analysis (Checklist and CED not required.)

(i) Regulations in aid of navigation, such as those concerning

rules of the road, International Regulations for the Prevention of

Collisions at Sea (COLREGS), bridge-to-bridge communications, vessel

traffic services, and marking of navigation systems.

(35) Routine approvals of regatta and marine parade permits for

marine events which are described as follows:

(a) Fishing tournaments involving approximately 50 powerboats (up

to approximately 26 feet in length with engines of approximately 50 HP)

and not more than approximately 200 spectator craft.

(b) Sailing competitions or demonstrations involving approximately

50 sailboats (up to approximately 26 to 50 feet in length which may

have auxiliary propulsion of approximately 50 HP) and not more than

approximately 200 spectator craft.

(c) Sailing competitions or demonstrations involving approximately

100 sailboats (up to approximately 26 feet in length) or sailboats and

not more than approximately 200 spectator craft.

(d) Paddling, rowing, or floating competitions or demonstrations

involving approximately 200 canoes, kayaks, rowboats, rowing sculls, or

rafts (up to approximately 26 feet in length) and not more than

approximately 200 spectator craft.

(e) Rowing competitions or demonstrations involving approximately

200 racing shells (up to approximately 60 feet in length) and not more

than approximately 200 spectator craft.

(f) Parades involving approximately 100 sailboats, powerboats,

unpowered watercraft, or a combination thereof (up to approximately 50

feet in length with approximately 50 HP primary or auxiliary

propulsion), operating at no or low wake speed and not more than

approximately 200 spectator craft.

(g) Swimming competitions involving approximately 800 swimmers and

not more than approximately 200 spectator craft.

(h) Fireworks displays over water not lasting over approximately 30

minutes and involving not more than approximately 200 spectator craft.

Dated: July 18, 1994.

J.F. Milbrand,

Acting Chief, Office of Engineering, Logistics and Development.

[FR Doc. 94-18553 Filed 7-28-94; 8:45 am]

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