Environmental Considerations/Categorical Exclusions

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 10

RIN 3067-AC41

Environmental Considerations/Categorical Exclusions

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: This rule proposes to revise the categories of actions or

categorical exclusions that normally would not require an environmental

impact statement or environmental assessment. These proposed changes

are intended to reduce the administrative processes and decrease the

time required for project funding and implementation, while still

ensuring that FEMA satisfies environmental concerns and issues. The

proposed changes are consistent with Federal directives, regulations

and statutes.

DATES: We invite comments on the proposed rule, which must be received

on or before September 18, 1995.

ADDRESSES: Please submit written comments to the Rules Docket Clerk,

Office of the General Counsel, Federal Emergency Management Agency, 500

C Street SW., room 840, Washington, DC 20472, (fax) (202) 646-4536.

FOR FURTHER INFORMATION CONTACT: Rick Shivar, Office of Policy and

Assessment, Federal Emergency Management Agency, 500 C Street SW.,

Washington, DC 20472, or phone (202) 646-3610.

SUPPLEMENTARY INFORMATION: The proposed changes respond to numerous

suggestions for additional exclusion categories and for modifications

to existing exclusion categories. They reflect several years'

experience on the types of actions that generally receive a finding of

no significant impact after FEMA makes an environmental assessment. The

proposed changes are intended to speed the approval of those projects

with no potential for significant environmental effects and to allow

attention to be focused on those projects with potential environmental

concerns.

In order to produce a complete and effective update of exclusion

categories, we conducted a review of the environmental assessments (EA)

and the findings of no significant impact (FONSI) that FEMA has issued.

In the last few years we have completed over 340 EAs, but there is only

one case where an environmental impact statement (EIS) was written.

While many EAs identified impacts that were able to be mitigated below

the level of significance, we found that the clear majority of actions

have no significant impact. Reviewing this last group revealed specific

types of projects that historically did not produce significant

environmental effects. In conjunction with the review of FEMA's EAs, we

conducted a literature review of other Federal documents containing

similar types of exclusions to ensure consistency of FEMA's exclusions

with other Federal agencies' regulations. The results of these two

reviews are the basis for the proposed change to FEMA's list of

exclusion categories.

These proposed changes are also in keeping with the Council on

Environmental Quality's guidance to

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Federal agencies on this subject (48 FR 34263, July 28, 1983). That

guidance encourages Federal agencies to add flexibility to implementing

procedures to allow new types of actions to be classified as

categorical exclusions (CATEXs) with minimal documentation required.

This is done by developing more broadly defined categories as well as

providing examples of typical CATEXs, rather than a comprehensive list,

so that specific actions not previously listed by an agency can be

considered for CATEX status on a case-by-case basis.

The proposed exclusion categories would not affect FEMA's

responsibility to comply with all other applicable local, state, and

Federal laws and regulations relating to health, safety and the

environment. This would encompass Federal environmentally oriented

statutes including, among others: the Clean Air Act, the Clean Water

Act, the Resource Conservation and Recovery Act, the Comprehensive

Environmental Response, Compensation and Liability Act, the Coastal

Zone Management Act, the Coastal Barrier Resources Act, the Endangered

Species Act, the National Historic Preservation Act, and the

Archaeological and Historic Preservation Act. It would not affect

FEMA's responsibilities under Executive Orders 11988, 11990, and 12898.

Nor would it affect FEMA's implementing regulations at 44 CFR part 9,

or FEMA's National Flood Insurance Program rules at 44 CFR parts 59

through 77.

A point of clarification of the term ``categorical exclusion'' is

necessary in the discussion of this proposed rule. Section 316 of the

Robert T. Stafford Disaster Relief and Emergency Assistance Act

(Stafford Act), Pub.L. 93-288, as amended, 42 U.S.C. 5159, provides (1)

for a statutory exclusion from NEPA requirements for certain actions

taken under specific sections of that Act (sections 402, 403, 407 and

502), and (2) for those actions under section 406 of the Stafford Act

that have ``the effect of restoring a facility substantially to its

condition prior to the disaster or emergency.'' While statutory

exclusions are exempted from all NEPA documentation, actions that are

categorically excluded from preparation of an EA or an EIS must be

documented by FEMA under this part. However, as with actions

categorically excluded, an action statutorily excluded from NEPA is not

exempt from the requirements of the other environmentally oriented

statutes indicated above. To help determine the level of environmental

review required and, specifically, when neither an EA nor an EIS is

likely to be required for a proposed action, the list of exclusion

categories presented by this rule is comprehensive in that it includes

both categorical exclusions and those actions that are statutorily

excluded (denoted by [SE]).

We present the list of proposed exclusion categories with

administrative type actions appearing first followed by emergency and

other actions. The administrative actions relate mainly to activities

that in and of themselves do not normally impact the environment, such

as: planning, design, procurement, acquisition, training, studies and

other administrative processes. The emergency and other actions mainly

address emergency, disaster-related, or other activities that could

impact features of the human and natural environment, such as:

construction; maintenance or repair of facilities or vegetation;

relocation of structures; floodproofing; emergency response and

deployment; physical and other assistance.

Since the proposed revision would republish and redesignate some

paragraphs, and modify other paragraphs, the following discussion is

directed only at those items that are added, removed, or revised.

44 CFR 10.8 would be revised to redesignate and revise the

discussion of statutory exclusions to recognize the difference between

the basic nature of the statutory exclusion and of the CATEX. We also

updated references to sections of the Stafford Act.

New paragraph (d)(2) modifies the nomenclature ``List of

categorical exceptions'' to ``List of exclusion categories'' to reflect

the categorical nature of the list as opposed to a list of exceptions.

This change is also reflected in new paragraph (d)(6). New paragraphs

(d)(2)(i),(ii),(iii),(v),(vi), and (vii) make minor wording revisions

and clarify the language of existing categories but do not change their

general substance.

New paragraph (d)(2)(iv) would address inspection and monitoring

processes that are part of the compliance requirements for various

programs. These activities are passive as to the environment. Any

federally funded action that the inspections or monitoring might

recommend is subject to the NEPA process.

Paragraph (d)(2)(viii) would allow for the timely evaluation and

acquisition of land in advance of project development to avoid land

speculation that could arise with early public disclosure. This

categorical exclusion applies only to acquisition of the land. Any

subsequent use of the property for a facility or project must be

considered as a separate action under this part without regard to

ownership of the land.

Paragraph (d)(2)(ix) would address the purchase or leasing of

existing facilities when land use requirements allow the proposed use.

Paragraph (d)(2)(x) would allow for interagency exchange of real

property.

Paragraph (d)(2)(xi) would cover the acquisition, installation, or

operation of utilities, gauges, communication and warning systems when

using established rights-of-way, existing systems or facilities.

Paragraph (d)(2)(xiii) would allow for the planting of indigenous

vegetation, for example, to reduce erosion or fire hazard.

Paragraph (d)(2)(xiv) would apply to the removal of structures,

improvements or debris to sites permitted for such material. The

paragraph also applies to the demolition, as well as removal, of

structures to such permitted locations.

Paragraph (d)(2)(xv) would apply to small, individual structures

that are to be relocated to a new site, where the new site is developed

with substantially completed infrastructure, and existing lots have

been previously disturbed, for example, by grading or prior

construction activities.

Paragraph (d)(2)(xvi) would exclude the act of granting a community

exception for residential basement floodproofing pursuant to the

National Flood Insurance Program.

Paragraph (d)(2)(xvii) would provide to actions under the

mitigation and other programs the same exclusion available by statute

to actions funded pursuant to section 406 of the Stafford Act whereby a

facility can be restored to its approximate preexisting design,

function and location.

Paragraph (d)(2)(xviii) would allow for improvements or upgrading

to current codes or standards an existing facility in an already

developed and appropriately zoned area on previously disturbed or

graded lots. This would include improvements in the disturbed portion

of a lot of an existing building, culverts and berms within the

previously disturbed perimeter of a road, storm drainage or utility

system or existing facility. New construction of hazard mitigation

measures that satisfy the conditions of this section are also covered.

Paragraph (d)(2)(xix) would permit actions within enclosed

facilities which comply with local construction, noise, pollution and

waste disposal regulations.

Paragraph (d)(2)(xx) and paragraph (d)(2)(xxi) would incorporate

some existing statutory exclusions into the CATEX list. Paragraph

(d)(2)(xx) would

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exclude, in addition to the existing category for the deployment and

support of Emergency Support Teams, direct response activities

including activation and support of the Catastrophic Disaster Response

Group, Regional Operations Centers, Emergency Response Teams, Urban

Search and Rescue teams, and situation assessment, reconnaissance and

other data gathering efforts in response to and for recovery from a

disaster.

Paragraph (d)(2)(xxi) would exclude emergency assistance and relief

activities and would rephrase terminology to reflect the amended

Stafford Act. This would include general federal and essential

assistance (Stafford Act sections 402 and 403), food coupons and

commodities (sections 412 and 413), and Federal emergency assistance

(section 502). Debris removal (section 407) would become less

restrictive. The temporary housing definition (section 408) would be

simplified as would the definitions of the individual and family grant

(section 411) and community disaster loan (section 417) exclusions.

In paragraph (d)(3) the list of Extraordinary Circumstances, which

was section 10.8(e), would be updated to clarify the circumstances that

may cause an action that is normally categorically excluded to have the

potential for significant environmental impact. The previous paragraph

(e)(2) describing ``actions in highly populated or congested areas'' is

replaced in paragraph (d)(3)(ii) with a more workable ``actions with a

high level of controversy.'' In paragraph (d)(3)(iv) clarifying

language is added to the term ``unproven technology.'' In paragraph

(d)(3)(vi) the hazardous substance condition was changed from ``use''

to ``presence.'' Paragraph (d)(3)(vii), which addresses flood plains or

wetlands, would be expanded to include other special or critical

resources, i.e., coastal zones, wildlife refuge and wilderness areas,

wild and scenic rivers, sole or principal drinking water aquifers, etc.

Two new categories were added to insure that adverse health and

safety effects, paragraph (d)(3)(viii) and the potential violation of

Federal, state, local or tribal requirements, paragraph(d)(3)(ix),

would be considered as extraordinary circumstances.

Paragraph (d)(5), Revocation, would be added to assure that if the

conditions upon which a categorical exclusion was granted have changed

or new information is discovered indicating that the action no longer

meets the conditions of the categorical exclusion, the responsible

official must revoke the exclusion and ask for a full environmental

review.

Paragraph (d)(6)(i) and (d)(6)(ii), which addresses changes to the

list of exclusion categories, adds ``directorates'' to ``offices and

administrations'' to more correctly reflect all the organizational

entities in FEMA.

National Environmental Policy Act

The requirements of 44 CFR Part 10, Environmental Consideration,

would exclude this proposed rule. FEMA has not prepared an

environmental impact statement.

Regulatory Flexibility Act

I certify that this proposed rule would not have a significant

economic impact on a substantial number of small entities under the

Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule adds eight

categories to FEMA's categorical exclusions from reviews under the

National Environmental Policy Act, and FEMA does not expect the rule

(1) would affect adversely the availability of disaster assistance

funding to small entities, (2) would have significant secondary or

incidental effects on a substantial number of small entities, or (3)

would create any additional burden on small entities.

Regulatory Planning and Review

This proposed rule is not a significant regulatory action within

the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993,

Regulatory Planning and Review, 3 CFR, 1994 Comp., p. 638. To the

extent possible this proposed rule adheres to the regulatory principles

set forth in E.O. 12866, but has not been reviewed by the Office of

Management and Budget under E.O. 12866.

Paperwork Reduction Act

This proposed rule does not involve any collection of information

for the purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism

This proposed rule involves no policies that have federalism

implications under Executive Order 12612, Federalism, October 26, 1987,

3 CFR, 1987 Comp., p.252.

Executive Order 12778, Civil Justice Reform

This proposed rule meets the applicable standards of section

2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR,

1991 Comp., p.309.

List of Subjects in 44 CFR Part 10

Environmental impact statements.

Accordingly, 44 CFR part 10 is proposed to be amended as follows:

PART 10--ENVIRONMENTAL CONSIDERATIONS

1. The authority citation for part 10 is revised to read as

follows:

Authority: 42 U.S.C. 4321 et seq.; E.O. 11514 of March 7, 1970,

35 FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977

Comp., p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3

CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3

CFR, 1979 Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3

CFR, 1979 Comp., p. 412, as amended.

2. In Sec. 10.8, paragraphs (c), (d), and (e) are revised to read

as follows:

Sec. 10.8 Determination of requirement for environmental review.

* * * * *

(c) Statutory exclusions. The following actions are statutorily

excluded from NEPA and the preparation of environmental impact

statements and environmental assessments by section 316 of the Robert

T. Stafford Disaster Relief and Emergency Assistance Act, as amended,

42 U.S.C. 5159 (Stafford Act);

(1) Action taken or assistance provided under sections 403, 407,

502, or 422 of the Stafford Act; and

(2) Action taken or assistance provided under section 406 or 422 of

the Stafford Act that has the effect of restoring facilities

substantially as they existed before a major disaster or emergency.

(d) Categorical Exclusions (CATEXs). CEQ regulations at 40 CFR

1508.4 provide for the categorical exclusion of actions that do not

individually or cumulatively have a significant impact on the human

environment and for which, therefore, neither an environmental

assessment nor an environmental impact statement is required. Full

implementation of this concept will help FEMA avoid unnecessary or

duplicate effort and concentrate resources on significant environmental

issues.

(1) Criteria. The criteria used for determination of those

categories of actions that normally do not require either an

environmental impact statement or an environmental assessment include:

(i) Minimal or no effect on environmental quality;

(ii) No significant change to existing environmental conditions;

and

(iii) No significant cumulative environmental impact.

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(2) List of exclusion categories. FEMA has determined that the

following categories of actions have no significant effect on the human

environment and are, therefore, categorically excluded from the

preparation of environmental impact statements and environmental

assessments except where extraordinary circumstances as defined in

paragraph (d)(5) of this section exist. If the action is of an

emergency nature as described in section 316 of the Stafford Act (42

U.S.C. 5159), it is statutorily excluded and is noted with [SE].

Paragraphs (c)(2) (i) through (x) of this section address

administrative actions and paragraphs (c)(2) (xi) through (xxi) of this

section relate to emergency and other actions.

(i) Administrative actions such as personnel actions, travel,

procurement of supplies, etc., in support of normal day to day

activities and disaster related activities;

(ii) Preparation, revision, and adoption of regulations,

directives, manuals, and other guidance documents related to actions

which qualify for categorical exclusions;

(iii) Studies that involve no commitment of resources other than

manpower and associated funding;

(iv) Inspection and monitoring activities, granting of variances,

and actions to enforce Federal, state, or local codes, standards or

regulations;

(v) Training activities and both training and operational exercises

utilizing existing facilities in accordance with established procedures

and land use designations;

(vi) Procurement of goods and services for support of day-to-day

and emergency operational activities, and the storage of goods other

than hazardous materials, so long as storage occurs on previously

disturbed land or in existing facilities;

(vii) The acquisition of properties under any applicable authority

when the acquisition is from a willing seller, the buyer coordinated

acquisition planning with affected authorities, and the acquired

property will be dedicated in perpetuity to uses that are compatible

with open space, recreational, or wetland practices.

(viii) Acquisition of unimproved real property not related to

specific facility plans or when necessary to protect the interests of

FEMA in advance of final project approval; (This categorical exclusion

applies only to the acquisition. Any subsequent use of the property for

a facility or project must be considered under this part without regard

to ownership of the real property);

(ix) Acquisition or lease of existing facilities where planned uses

generally conform to past use or local land use requirements;

(x) Transfer of administrative control of FEMA real property to

another Federal agency;

(xi) Acquisition, installation, or operation of utility and

communication systems that use existing rights-of-way, distribution

systems, or facilities;

(xii) Routine maintenance, repair, and grounds-keeping activities;

(xiii) Planting of indigenous vegetation;

(xiv) Demolition of structures and/or disposal of uncontaminated

structures and other improvements for removal to permitted off-site

locations;

(xv) Physical relocation of individual structures to previously

disturbed or graded lots in existing developed areas with substantially

completed infrastructure;

(xvi) Granting of community-wide exceptions for floodproofed

residential basements meeting the requirements of 44 CFR 60.6(c) under

the National Flood Insurance Program;

(xvii) Repair, reconstruction, restoration, elevation, retrofiting,

or replacement of any facility in a manner that substantially conforms

to the preexisting design, function, and location; [SE, in part]

(xviii) Improvements or upgrading to current codes and standards of

existing facilities and construction of hazard mitigation measures when

those actions are in existing developed areas with substantially

completed infrastructure, and when those actions do not alter function,

system capacity, or land use; provided the operation of the completed

project will not, of itself, have an adverse effect on the quality of

the human environment;

(xix) Actions conducted within enclosed facilities where all

airborne emissions, waterborne effluent, external radiation levels,

outdoor noise, and solid and bulk waste disposal practices are in

compliance with existing Federal, state, and local laws and

regulations;

(xx) The following planning and administrative activities in

support of emergency and disaster response and recovery:

(A) Activation of the Emergency Support Team and convening of the

Catastrophic Disaster Response Group at FEMA headquarters;

(B) Activation of the Regional Operations Center and deployment of

the Emergency Response Team, in whole or in part;

(C) Deployment of Urban Search and Rescue teams;

(D) Situation Assessment including ground and aerial

reconnaissance;

(E) Information and data gathering and reporting efforts in support

of emergency and disaster response and recovery and hazard mitigation;

and

(xxi) The following emergency and disaster response, recovery and

hazard mitigation activities pursuant to the Stafford Act:

(A) General Federal Assistance (Sec. 402); [SE]

(B) Essential Assistance (Sec. 403); [SE]

(C) Debris Removal (Sec. 407) [SE]

(D) Temporary Housing (Sec. 408), except locating multiple mobile

homes or other readily fabricated dwellings on sites, other than

private residences, not previously used for such purposes;

(E) Unemployment Assistance (Sec. 410);

(F) Individual and Family Grant Programs (Sec. 411), except to the

extent that grants will be used for restoring, repairing or building

private bridges, or purchasing mobile homes or other readily fabricated

dwellings;

(G) Food Coupons and Distribution (Sec. 412);

(H) Food Commodities (Sec. 413);

(I) Legal Services (Sec. 415);

(J) Crisis Counseling Assistance and Training (Sec. 416);

(K) Community Disaster Loans (Sec. 417);

(L) Emergency Communications (Sec. 418);

(M) Emergency Public Transportation (Sec. 419);

(N) Fire Suppression Grants (Sec. 420); and

(O) Federal Emergency Assistance (Sec. 502) [SE].

(3) Extraordinary circumstances. If extraordinary circumstances

exist within an area affected by an action, such that an action that is

categorically excluded from NEPA compliance may have a significant

adverse environmental impact, an environmental assessment shall be

prepared. Extraordinary circumstances that may have a significant

environmental impact include:

(i) Greater scope or size than normally experienced for a

particular category of action;

(ii) Actions with a high level of public controversy;

(iii) Potential for degradation, even though slight, of already

existing poor environmental conditions;

(iv) Employment of unproven technology with potential adverse

effects or actions involving unique or unknown environmental risks;

(v) Presence of endangered or threatened species or their critical

habitat, archaeological remains, or other protected resources;

(vi) Presence of hazardous or toxic substances;

(vii) Actions with the potential to adversely affect special status

areas or other critical resources such as

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wetlands, coastal zones, wildlife refuge and wilderness areas, wild and

scenic rivers, sole or principle drinking water aquifers;

(viii) Potential for adverse effects on health or safety; and

(ix) Potential to violate a Federal, State, local or tribal law or

requirement imposed for the protection of the environment.

(4) Documentation. The Regional Director will prepare and maintain

an administrative record of each proposal that is determined to be

categorically excluded from the preparation of an environmental impact

statement or an environmental assessment.

(5) Revocation. The Regional Director shall revoke a determination

of categorical exclusion and shall require a full environmental review

if, subsequent to the granting of an exclusion, the Regional Official

determines that due to changes in the proposed action or in light of

new findings, the action no longer meets the requirements for a

categorical exclusion.

(6) Changes to the list of exclusion categories. (i) The FEMA list

of exclusion categories will be continually reviewed and refined as

additional categories are identified and experience is gained in the

categorical exclusion process. An office, directorate, or

administration of FEMA may, at any time, recommend additions or changes

to the FEMA list of exclusion categories.

(ii) Offices, directorates, and administrations of FEMA are

encouraged to develop additional categories of exclusions necessary to

meet their unique operational and mission requirements.

(iii) If an office, directorate, or administration of FEMA proposes

to change or add to the list of exclusion categories, it shall first:

(A) Obtain the approval of the Environmental Officer and FEMA's

Office of the General Counsel; and

(B) Publish notice of such proposed change or addition in the

Federal Register at least 60 days before the effective date of such

change or addition.

(e) Actions that normally require an environmental assessment. When

a proposal is not one that normally requires an environmental impact

statement and does not qualify as a categorical exclusion, the Regional

Director shall prepare an environmental assessment.

Dated: July 28, 1995.

Harvey G. Ryland,

Deputy Director.

[FR Doc. 95-19136 Filed 8-2-95; 8:45 am]

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