Environmental Analysis of Army Actions

Federal RegisterJul 22, 1996

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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 651

Environmental Analysis of Army Actions

AGENCY: Department of the Army; Defense.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise Army Regulation 200-2, which

is the Army's implementing regulation for the National Environmental

Policy Act of 1969 (NEPA). Major changes are an expanded list of

categorical exclusions, clear separation of the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA) and

NEPA, and delegation of authority to approve environmental impact

statements (EIS).

DATES: To be given full consideration, comments must be received no

later than August 21, 1996.

ADDRESSES: Written comments should be sent to: Headquarters, Department

of the Army, ATTN: DAIM-ED (Mr. Timothy Julius), 600 Army Pentagon,

Washington, DC 20310-0600.

FOR FURTHER INFORMATION CONTACT: Timothy P. Julius, (703) 693-0543.

SUPPLEMENTARY INFORMATION: This proposed regulation establishes

policies and responsibilities for assessing the effects of Army

actions. It supplements Council on Environmental Quality (CEQ)

regulations for implementing the procedural provisions of NEPA (40 CFR

parts 1500-1508). The last major revision to this regulation was in

December 1988. Since that time, initiatives such as the National

Performance Review have tended to streamline the Federal Government

through decentralization, reduction and simplification of regulations,

and management of risk. This revision strives to meet the spirit of the

National Performance Review, and Executive Order (EO) 12861,

Elimination of One-Half of Executive Branch Internal Regulations, dated

September 11, 1993. This proposed regulation incorporates emerging

issues such as Environmental Justice (EO 12898, Federal Actions to

Address Environmental Justice in Minority Populations and Low-Income

Populations, dated February 11, 1994) and Community Right-to-Know (EO

12856, Federal Compliance with Right-to-Know Laws and Pollution

Prevention Requirements, dated August 3, 1993). The list of categorical

exclusions has been expanded to include a more comprehensive array of

actions routinely performed by the Army which have minimal or no

individual or cumulative effect on environmental quality. This is

intended to better focus on actions that warrant the expenditure of

time and resources for analysis and formal documentation. The authority

to approve environmental impact statements has been delegated to

Commanders of Major Commands (primarily for Installations), and Program

Executive Officers and Commanders of Major Subordinate Commands with

Milestone Decision Authority (for acquisition and development

programs). The purpose of delegation of approval authority for EISs is

to empower the officials who are responsible for accomplishing the

work. This empowerment will compel the decision makers to take more

complete ownership of their actions, and makes the NEPA process an

integral, rational part of Army decision making processes. CERCLA and

NEPA are clearly separated in recognition of the Department of

Justice's opinion with regard to the application of NEPA to CERCLA

cleanups, and to eliminate potential duplication of effort. Procedural

Requirements: This regulation does not involve the collection of

information and is therefore not subject to the provisions of the

Paperwork Reduction Act. This rule contains no policies that have

Federalism implications under EO 12612, Federalism, dated October 26,

1987. This proposed rule is not a major rule pursuant to EO 12291,

Federal Regulation, dated February 17, 1981, therefore a Regulatory

Flexibility Analysis is not require(d) This is not a significant

regulatory action pursuant to EO 12866, Regulatory Planning and Review,

dated September 30, 1993. This regulation meets the standards of Sec.

2(b)(2) of EO 12778, Civil Justice Reform, dated October 23, 1991.

List of Subjects in 32 CFR Part 651

Environmental impact statement, Environmental protection, Natural

resources.

[[Page 37866]]

The Proposal

Accordingly, it is proposed to revise 32 CFR part 651 to read as

follows:

PART 651-ENVIRONMENTAL EFFECTS OF ARMY ACTIONS (AR 200-2)

Sec.

Subpart A--Introduction

651.1 Applicability.

651.2 Purpose.

651.3 Definitions.

651.4 Responsibilities.

651.5 Policies.

Subpart B-National Environmental Policy Act of 1969 (NEPA) and the

Decision Processes

651.6 Introduction.

651.7 Actions Requiring Evaluation.

651.8 Exemptions, Exceptions, and Emergency Procedures.

651.9 Integration with Army Planning.

651.10 Classified Actions.

Subpart C-Required Records and Documents

651.11 Environmental Assessment (EA).

651.12 Finding of No Significant Impact (FONSI).

651.13 Notice of Intent (NOI).

651.14 Environmental Impact Statement (EIS).

651.15 Record of Decision (ROD).

651.16 Notice of Availability (NOA).

651.17 Notice of Availability of Weekly Receipts of EISs (NWR).

651.18 Record of Environmental Consideration (REC).

Part D--Categorical Exclusions (CXs)

651.19 General.

651.20 Determining when to use a CX.

651.21 List of Categorical Exclusions (CXs).

Part E--Environmental Assessment (EAs)

651.22 Conditions and Actions Normally Requiring an EA.

651.23 EA Format.

651.24 Finding of No Significant Impact (FONSI).

651.25 Review and Approval of EAs and FONSIs.

651.26 Public Involvement.

651.27 Mitigation and Implementation Plan.

Part F--Environmental Impact Statements (EISs)

651.28 Introduction.

651.29 Conditions Requiring an EIS.

651.30 Actions Normally Requiring an EIS.

651.31 EIS Format.

651.32 Approval Authority.

651.33 Notice of Intent (NOI).

651.34 Scoping.

651.35 Preparation and Processing of the Draft Environment Impact

Statement (DEIS).

651.36 Public Review of the DEIS.

651.37 Preparation of the Final Environmental Impact Statement

(FEIS).

651.38 Decision.

651.39 Supplemental EISs (SEISs).

651.40 The Army as a Cooperating Agency.

Authority: National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. 4321 et seq. Council on Environmental Quality Regulations, 40

CFR part 1500-1508, 43 FR 55978-56007, November 29, 1978, as amended

at 51 FR 15625, April 25, 1986, and Executive Orders 11988, 11990,

12114, 12856, 12898.

Subpart A--Introduction

Sec. 651.1 Applicability.

This regulation applies to pertinent functions of the Active Army

and Army Reserve, to functions of the Army National Guard (ARNG)

involving Federal funding, and to functions for which the Army is the

DoD executive agent. It does not apply to Civil Works functions. This

regulation applies to relevant actions within the United States, which

is defined as all States, the District of Columbia, territories, and

possessions of the United States; and all waters and airspace subject

to the territorial jurisdiction of the United States. The territories

and possessions of the United States include the Virgin Islands,

American Samoa, Wake Island, Midway Island, Guam, Palmyra Island,

Johnston Atoll, Navassa Island, and Kingman Reef. This regulation also

applies to actions in the Commonwealth of Puerto Rico, the Commonwealth

of the Northern Marianas, and the Republic of the Marshall Islands.

Sec. 651.2 Purpose.

(a) Environmental Analysis of Army Actions is the Army's

implementing regulation for the National Environmental Policy Act of

1969 (NEPA). This regulation sets forth the Army's policies and

responsibilities for the early integration of environmental

considerations into Army planning and decision making processes.

(b) This regulation establishes criteria to determine which Army

actions normally require preparation of an Environmental Assessment

(EA) or an Environmental Impact Statement (EIS), and lists Army actions

that are categorically excluded from the requirements to prepare an EA

or EIS.

CFR parts 1500-1508), and must be read in conjunction with it.

Sec. 651.3 Definitions.

(a) Proponent. The proponent is the Army office, DoD or non-DoD

Federal agency, state or local agency, organization, or individual that

proposes an action requiring Army approval.

(b) Decision maker. The decision maker is the Army official who has

the primary authority to approve NEPA documents, make decisions, and

commit government resources to a course of action.

Categories (ACAT) I, II, III, & IV programs as defined by Department of

Defense Instruction (DoDI) 5000.2.

(d) Major Decision Point. Review points in the development of a

project/program at which decisions are made whether to proceed. For the

acquisition process, these would be the major milestones as defined in

DoD Instruction 5000.2.

Sec. 651.4 Responsibilities.

(a) The Secretary of the Army (SA) has designated the Assistant

Secretary of the Army (Installations, Logistics and Environment)

(ASA(IL&E)) as the Army's responsible official for NEPA matters.

(b) The Assistant Secretary of the Army (Research, Development, and

Acquisition) will:

(1) In conjunction with the Assistant Secretary of the Army

(Installations, Logistics, and Environment), manage the environmental

compliance of materiel systems.

(2) Develop and implement a process to prepare, review, approve,

and catalog NEPA documents for the acquisition and development of Army

materiel.

will assign proponent responsibilities as required when multiple MACOM

or Headquarters offices are involved in a proposal.

(d) The Assistant Chief of Staff for Installation Management

(ACSIM) is responsible for coordinating and monitoring NEPA activities

within the Army. The Environmental Programs Directorate is the Army

Staff (ARSTAF) point of contact (POC) for environmental matters.

(e) The Director of Environmental Programs will--

(1) Assist Army agencies in completing environmental analysis and

documentation.

(2) Review, as requested, environmental documents submitted by

Army, other DoD components, and other Federal agencies.

(3) Monitor proposed Army policy and program documents that have

environmental implications to determine compliance with NEPA

requirements and to ensure integration of environmental considerations

into the decision making process.

(4) Maintain liaison with the Office of the Secretary of Defense,

Office of Management and Budget, Council on

[[Page 37867]]

Environmental Quality (CEQ), Environmental Protection Agency (EPA), and

other Federal, state, and local agencies on environmental policies that

may affect the Army. This liaison assists in identifying and evaluating

applicable regulatory policies for proposed actions.

(f) The Assistant Secretary of the Army (Financial Management) will

develop requirements for environmental budget exhibits and displays of

data in support of annual authorization and appropriation requests.

(g) The General Counsel (GC) provides legal advice to the Secretary

of the Army on all environmental matters, to include interpretation and

compliance with NEPA and implementing regulations.

(h) The Judge Advocate General (TJAG) will provide legal advice and

assistance in interpretation of NEPA and Federal implementing

regulations, and other applicable statutes.

(i) The Surgeon General will review, as requested, the health and

welfare aspects of proposals.

(j) The Chief of Public Affairs will:

(1) Provide guidance on issuing public announcements such as

Findings of No Significant Impact (FONSI), Notices of Intent (NOI),

scoping procedures, Notices of Availability (NOA), and other public

involvement activities.

(2) Review and coordinate planned announcements on actions of

national interest with appropriate ARSTAF elements and the Assistant

Secretary of Defense for Public Affairs (OASD (PA)).

(3) Assist in the issuance of appropriate press releases to

coincide with the publication of notices in the Federal Register.

(k) The Chief of Legislative Liaison will notify members of

Congress of impending proposed actions of national concern or interest.

The Chief will--

(1) Provide guidance on issuing congressional notifications on

actions of national concern or interest.

(2) Review planned congressional notifications on actions of

national concern or interest.

(3) Prior to and in concert with the issuance of press releases and

publications in the Federal Register, assist in the issuance of

congressional notifications on actions of national concern or interest.

(l) Commanders of Major Army Commands (MACOM), the Chief, National

Guard Bureau, and the U.S. Army Reserve Commander will--

(1) Monitor proposed actions and programs within their commands to

ensure compliance with this regulation.

(2) Task the appropriate proponent with funding and preparation of

NEPA documents and development of public involvement activities.

(3) Ensure that the proponent initiates the preparation of

necessary environmental documentation and assesses the environmental

consequences of proposed programs and projects early in the planning

process.

(4) Assist in the review of environmental documents prepared by DoD

and other Army or Federal agencies, as requested.

(5) Establish and maintain the capability (personnel and other

resources) to comply with the requirements of this regulation.

(6) Maintain official record copies of all environmental documents

for which they are the staff proponent.

(7) Provide coordination with HQDA for proposed actions of national

interest.

(8) Approve environmental impact statements and associated

documents (NOI, NOA, ROD) for actions under their purview.

(9) Office of the Chief of the National Guard Bureau is responsible

for approving all Federal environmental documents prepared by all Army

National Guard activities.

(m) Major Subordinate Commands, Installations (Base Operations

(BASEOPS) Army Reserve Command (ARCOM), activity (facility), unit (non-

BASEOPS Major U.S. Army Reserve Command (MUSARC) commanders and The

Adjutants General (TAG) will:

(1) Monitor proposed actions and programs within their commands to

ensure compliance with this regulation.

(2) Task the appropriate proponent with funding and preparation of

NEPA documents and development of public involvement activities.

(3) Ensure that the proponent initiates the preparation of

necessary environmental documentation and assesses the environmental

consequences of proposed programs and projects early in the planning

process.

(4) Assist in the review of environmental documents prepared by DoD

and other Army or Federal agencies, as requested.

(5) Establish and maintain the capability (personnel and other

resources) to comply with the requirements of this regulation.

(6) Maintain official record copies of all environmental documents

for which they are the staff proponent.

(7) Provide coordination for proposed actions of national interest.

(8) Approve environmental documents for actions under their purview

(does not include TAG).

(n) The Army Acquisition Executive (AAE) will:

(1) Administer acquisition programs to ensure compliance with all

applicable environmental laws, executive orders, and regulations.

(2) Ensure that life cycle environmental costs are an integral part

of system life cycle cost estimates.

(o) Program Executive Officers (PEO) and direct-reporting PMs will:

(1) Supervise assigned programs, projects, and products to ensure

that they comply with all applicable environmental laws, executive

orders, and regulations.

(2) Ensure that environmental considerations are integrated into

assigned systems planning process and systems engineering process.

(3) Approve environmental impact statements and associated

documents (NOI, NOA, ROD) for actions under their purview.

(p) Program, Project, and Product Managers will:

(1) Manage compliance with all applicable environmental laws,

executive orders, and regulations for assigned programs, projects, and

products.

(2) Integrate environmental considerations into the systems

planning process and systems engineering process.

(3) Apply policies and procedures set forth in this regulation to

programs and actions within their organizations and staff

responsibility.

(4) Initiate the preparation of environmental documentation and

assess the environmental consequences of proposed programs and

projects.

(5) Establish and maintain the capability (personnel and other

resources) to comply with the requirements of this regulation.

(6) Prepare and maintain the official record copy of all

environmental documents for which they are the proponent.

(q) Proponents at all levels will:

(1) Ensure that NEPA documents are prepared and staffed to the

satisfaction of the decision maker.

(2) Ensure accuracy and adequacy of environmental impact analyses

and documents regardless of the author.

(3) Adequately fund and implement the decision.

Sec. 651.5 Policies

(a) DA policy is to balance military mission activities, including

materials and industrial processes, with the capabilities of the

installations and surrounding communities. Decision makers will be

cognizant of the impact of their decisions upon the environment, and

will reduce undue and unnecessary adverse impacts to the extent

feasible.

(b) When appropriate, environmental documentation to consider

operations

[[Page 37868]]

security principles and procedures described in AR 530-1 will be

reviewed and documented on the cover sheet or signature page.

advanced project planning, and will be funded from other than military

construction (MILCON) funds. Operations and Maintenance/Operation and

Maintenance, ARNG (OMA/OMAR), Research, Development, Test, and

Evaluation (RDTE) or other operating funds are the proper sources of

funds for analysis and documentation. Alternative funds will be

identified for environmental documentation, monitoring, and other

required studies as part of the MILCON approval process.

(d) Costs of design and construction mitigation measures required

as a direct result of MILCON projects will be paid from MILCON funds if

included in the cost estimate and description of work on DD Form 1391.

(e) Ongoing Army activities require an environmental analysis when

significant new circumstances warrant consideration of changing the

activity. For example, the listing of a new species as endangered may

indicate, per consultation under the Endangered Species Act, the

modification of a training regime or major modification of an existing

weapons system.

(f) Environmental analyses will reflect due consideration of non-

statutory environmental issues implemented by Federal and DoD plans and

standards. Potential issues will be discussed and critically evaluated

during scoping and other public involvement processes. Some examples

are the issues articulated in Executive Order 12898, Federal Actions to

Address Environmental Justice in Minority Populations and Low-Income

Populations; and Executive Order 12856, Federal Compliance with Right-

to-Know Laws and Pollution Prevention Requirements.

(g) Consideration of the environment for decisions involving

activities outside the United States (see Applicability) will be

accomplished pursuant to Executive Order No. 12114, host country final

governing standards, and DoD Directives and Instructions.

Subpart B--The National Environmental Policy Act of 1969 (NEPA) and

Decision Processes

Sec. 651.6 Introduction.

(a) NEPA establishes broad Federal policies and goals for the

protection of the environment. Section 102(2) contains procedural

requirements directed toward the attainment of such goals.

(b) The NEPA process is the systematic examination of probable

environmental consequences of implementing a proposed action and

reasonable alternatives. To be effective, integration of the NEPA

process with other Army project planning will occur at the earliest

possible time to ensure that:

(1) Planning and decision making reflect environmental values.

(2) Policies listed in paragraph 1-5 are implemented.

(3) Delays and potential conflicts in the process are minimized.

(4) Evaluation of environmental effects, values and issues is in

sufficient detail for consideration concurrently with economic,

technical, and mission-related analyses. When EISs are undertaken, the

economic and social impacts will be included in the analysis of total

environmental impacts. However, economic and social impacts alone

(i.e., without accompanying natural or physical impacts) do not

necessitate the preparation of an environmental document for an Army

action.

Sec. 651.7 Actions requiring evaluation.

The general types of proposed actions to evaluate for environmental

impact include:

(a) Management and operational concepts and programs, including

such areas as logistics, research, development, test and evaluation,

procurement, and real property and facility management.

(b) Projects, including facilities construction, research and

development for weapons, vehicles, and other equipment or activities.

operations, overall operation of installation, or facility test and

evaluation programs.

(d) Licenses for operations or special material use, including

Nuclear Regulatory Commission (NRC) license, an Army radiation

authorization, or Federal Aviation Administration (FAA) Air Space

request.

(e) Materiel development, acquisition, and/or transition.

(f) Research and development, including such areas as genetic

engineering, laser testing, and electromagnetic pulse generation.

(g) Actions supported through Federal contracts, grants, subsidies,

loans, or other forms of funding such as Government Owned-Contractor

Operated (GOCO) industrial plants and construction of family housing

via third party contracting (Section 801/802 Housing, Military

Appropriations Act of 1984).

(h) Leases, easements, permits, licenses, certificates, or other

entitlement for use.

(i) Environmental Remediation/Restoration projects not addressed in

paragraph 2-3(b) below.

Sec. 651.8 Exemptions, exceptions, and emergency procedures.

(a) Exemption by Law. The law must apply to DoD and/or Army and

must prohibit, exempt, or make impossible full compliance with the

procedures of NEPA (40 CFR 1500.6).

(b) Environmental Remediation/Restoration projects implemented in

accordance with the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA) shall not be assessed under NEPA.

(1) In the event of an emergency, the Army may be required to take

immediate actions that have environmental impacts. These immediate

actions are necessary to promote national defense or security, or to

protect life or property. In such cases, the HQDA proponent will notify

the Environmental Programs Directorate, which in turn will notify the

Assistant Secretary of the Army for Installations, Logistics and

Environment (ASA (I,L&E)), who will coordinate with the Deputy Under

Secretary of Defense (Environmental Security) (DUSD(ES)) and CEQ

regarding actions necessary to control the immediate effects of the

emergency. In no event will the Army delay an emergency action

necessary for national defense, security, or preservation of human life

or property to comply with this regulation or the CEQ Regulations.

Call-ups of the ARNG during state emergencies are state actions

excluded from the requirements of this regulation.

(2) These notifications and consultations apply only to actions

necessary to control immediate effects of the emergency; other actions

remain subject to NEPA review (40 CFR 1506.11).

Sec. 651.9 Integration with Army Planning.

(a) Environmental considerations will be integrated into the Army's

decision making processes to ensure that:

(1) The planning process identifies major decision points for

principal programs and proposals that are likely to have an effect on

the environment.

(2) Decision makers are informed of and consider the environmental

consequences at the same time as other factors such as mission

requirements and cost.

[[Page 37869]]

(3) Environmental documents accompany the proposal through the

existing Army review and decision making processes. The Army will

integrate NEPA requirements with other planning and environmental

review procedures.

(4) The alternatives considered in the decision are within the

range of alternatives analyzed in relevant environmental documents.

(b) Proponents are responsible for providing funds for NEPA

documentation, and for implementation of decisions including

mitigations (regardless of the level of NEPA analysis).

analyses into its decision making process and will further ensure that

appropriate environmental life cycle costs become an integral part of

total program cost estimates and budgets. PEOs, and Program, Product,

and Project Managers will integrate the NEPA process along with other

program planning at the earliest possible time to ensure that

acquisition planning and decisions reflect environmental values and

considerations. During the planning process, materiel acquisition

proponents will, as early as possible, determine the type of

environmental analyses that will be required throughout the life cycle

of their assigned program and identify appropriate funding.

Sec. 651.10 Classified actions.

(a) For proposed actions and environmental documents involving

classified information, AR 380-5 will be followed.

(b) Classification does not relieve a proponent of the requirement

to assess and document the environmental effects of a proposed action.

separated from other information, and a meaningful environmental

analysis produced, unclassified documents will be prepared and

processed in accordance with this regulation. Classified portions will

be kept separate and provided to reviewers and decision makers in

accordance with AR 380-5.

(d) For cases where classified information is such an integral part

of the analysis of a proposal that a meaningful unclassified

environmental document cannot be produced, the proponent, in

consultation with the appropriate security and environmental offices,

will form a team to review classified environmental documents.

Subpart C--Army NEPA and NEPA-Related Documents

Sec. 651.11 Environmental Assessment (EA).

The EA provides the proponent, the public, and the decision maker

with sufficient evidence and analysis for determining whether

environmental impacts are significant. The EA ensures compliance with

NEPA when an environmental impact statement (EIS) is not required and a

categorical exclusion (CX) is inappropriate, and facilitates

preparation of an EIS if required.

Sec. 651.12 Finding of No Significant Impact (FONSI).

The FONSI is a decision document that briefly states why an action

will not significantly affect the environment, and that an EIS will not

be prepare(d). The FONSI includes a summary of the EA and notes any

related environmental documents. If the EA is attached, the FONSI need

not repeat any of the EA discussion, but may incorporate it by

reference.

Sec. 651.13 Notice of Intent (NOI).

The NOI is a notice published by the Army in the Federal Register

to inform the public that an EIS will be prepare(d). An NOI may also be

prepared for environmental assessments involving actions of national

interest.

Sec. 651.14 Environmental Impact Statement (EIS).

The EIS is a public document designed to ensure that NEPA policies

and goals are incorporated early into the programs and actions of

Federal agencies. An EIS is intended to provide a full, open, and

balanced discussion of significant environmental impacts. Along with

other project documentation, the EIS provides a basis for informed

decision making.

Sec. 651.15 Record of Decision (ROD).

The ROD is a concise public record of the decision and rationale

following completion of an EIS.

Sec. 651.16 Notice of Availability (NOA).

The NOA is a notice published by the Army in the Federal Register

to inform the public that an environmental document is available for

review. An NOA may be published for draft and final EISs (including

supplements), and will be published for RODs with national interest. An

NOA will also be published for environmental assessments of national

interest. This agency NOA should not be confused with EPA's notice of

availability of weekly receipts of EISs (NWR).

Sec. 651.17 Notice of Availability of Weekly Receipts of EISs (NWR).

This notice is published by the EPA and officially begins the

public review periods. The NWR is published each Friday, and lists the

EISs that were filed the previous week.

Sec. 651.18 Record of Environmental Consideration (REC).

A REC briefly describes the proposed action, identifies the

proponent and approving officials(s), and records the analysis for the

use of categorical exclusions (CX) that require such documentation.

There is no required format of a REC as long as the information above

is included.

Subpart D--Categorical Exclusions (CXs)

Sec. 651.19 General.

(a) Categorical exclusions are categories of actions with no

significant individual or cumulative effect on the human environment,

and for which neither an EA nor EIS is require(d). The use of a CX is

intended to reduce paperwork and eliminate delays in the initiation and

completion of proposed actions.

(b) Army installations and materiel developers are required to

prepare many types of management plans that should be environmentally

assessed (e.g., capital investment strategy, historic preservation,

natural resources etc.). In cases where activities are adequately

assessed as part of these normal planning processes, CXs should be

needed only infrequently to cover unanticipated proposals.

Sec. 651.20 Determining when to use a CX.

(a) To use a CX, the proponent must:

(1) Identify a CX (or multiple CXs) that encompasses the proposed

action.

(2) Ensure that the action has not been segmented to meet the

definition of a CX. This means that the whole proposal must be

considered (e.g., the operations of a construction project must be

taken into account).

(3) Apply the following screening criteria to determine if the

action involves extraordinary circumstances which would preclude the

use of a CX:

(i) Potential to adversely effect public health, safety or the

environment.

(ii) Possible significant cumulative effects, direct or indirect.

(iii) Impose uncertain or unique risks.

(iv) Greater scope or size than is normal for this category of

action.

(v) Reportable releases of hazardous or toxic substances as

specified by Section 102 of the Comprehensive Environmental Response

Compensation and Liability Act (CERCLA).

[[Page 37870]]

(vi) Discharges of petroleum, oils, and lubricants (POLs) or

radioactive substances.

(vii) Generation of noise which causes the existing C-weighted day-

night levels (CDNL) 62 dB or A-weighted day-night levels (ADNL) 65 dB

noise contours to expand within or into noise sensitive land use areas.

Generation of noise which increases the CDNL or ADNL in noise sensitive

land uses by more than 1.5 dB.

(viii) When air emissions exceed de minimis levels and a formal

Clean Air Act conformity determination is required.

(ix) Potential to violate any Federal, state, or local

environmental law, regulation, or ordinance.

(x) More than minor, or unresolved adverse effect on

environmentally sensitive resources.

(b) Environmentally sensitive resources include:

(1) Federally listed candidate, threatened, or endangered species

or their habitats;

(2) Properties listed on or eligible for the National Register of

Historic Places;

(3) Areas having special designation or recognition such as prime

or unique agricultural lands off Army property; coastal zones;

designated wilderness or wilderness study areas; wild and scenic

rivers; national landmarks; 100-year floodplains; wetlands; sole source

aquifers which are potential sources of drinking water; refuges; parks;

or other areas of high environmental sensitivity;

(4) Sacred sites (IAW American Indian Religious Freedom Act).

with other statutes, such as consultations under the Endangered Species

Act or the National Historic Preservation Act. Such consultations may

be required to determine the applicability of screening criteria.

Sec. 651.21 List of Categorical Exclusions (CXs).

(a) For convenience only, the CXs are listed under common types of

activities (e.g., administration/operation, construction/demolition,

and repair and maintenance). Certain CXs require a REC, which will be

completed and signed by the proponent. Concurrence on the use of a CX

by the installation environmental coordinator (EC) or other appropriate

EC (e.g., MSC or MACOM) is required. The list of CXs is subject to

continual review and modification. Requests for additions or changes to

the CXs should be sent to the Environmental Programs Directorate.

Subordinate Army headquarters may not modify the CX list through

supplements to this regulation. The proposed modifications to the list

of CXs will be published in the Federal Register by HQDA to provide an

opportunity for public comment.

(b) Administration/Operation Activities:

(1) Routine law and order activities performed by military/military

police and physical plant protection and security personnel.

(2) Preparing, revising, or adopting regulations, instructions,

directives, and plans that implement, without substantial change,

regulations, instructions, directives.

(3) Routine operation of existing facilities and laboratories.

(4) Normal fiscal, administrative, recreation and welfare

activities.

(5) Reductions in force and unit redesignations.

(6) Routine activities of personnel and equipment in facilities

which are compatible with the existing uses.

(7) Deployment of military units on a temporary duty (TDY) or

training basis where existing facilities are used for their intended

purposes.

(8) Administrative personnel-related studies.

(9) Non-construction activities in support of other agencies/

organizations involving community participation projects and law

enforcement activities.

(10) Routine military ceremonies, funerals, and concerts. Special

events such as State-funerals, to include flyovers.

(11) Routine administrative reorganizations and consolidations.

(12) Actions which fall under another Federal agency's list of

categorical exclusions when the other Federal agency is the lead agency

and the Army is the cooperating agency (REC required).

(1) Construction of an addition to an existing structure or

facility, and new construction which does not involve more than 5.0

cumulative acres of new surface disturbance. New construction does not

include facilities for the transportation, distribution, use, storage,

treatment, and disposal of solid waste, medical waste, and hazardous

waste (REC required).

(2) Demolition and disposal of buildings, structures, or other

improvements, or removal of part thereof for demolition and disposal in

accordance with applicable regulations, including those regulations

applying to removal of asbestos, polychlorinated biphenyls (PCBs), lead

base paint, and other hazardous materials (REC required).

(3) Road and trail construction that involves no more than 5.0

acres of new surface disturbance.

(d) Cultural and Natural Resource Management Activities:

(1) Routine maintenance of timber stands, including tree removal

and pruning.

(2) Timber harvest activities which remove 250,000 board feet or

less of merchantable wood products or salvage as a negotiated timber

sale (REC required).

(3) Land regeneration activities of native trees and vegetation,

including site preparation (REC required).

(4) Routine maintenance of streams (in accordance with U.S. Army

Corps of Engineers' permit authority under Section 404 of the Clean

Water Act and applicable state and local permits), and erosion control

and storm water control structures in accordance with management plans.

(5) Policy and control measures for pest control/removal in

accordance with pest management plans (REC required).

(6) Hunting and fishing policies or regulations that are consistent

with State and local regulations.

(7) Studies, data collection, and information gathering which does

not involve major surface disturbance. Examples include topographic

surveys, bird counts, wetland mapping, and other resources inventories.

(8) Routine maintenance of fish and wildlife habitat.

(9) Routine monitoring of fish and wildlife populations. Examples

include radio collaring, gill netting and counts.

(10) Reintroduction of endemic or native species (other than

endangered or threatened species) into historic habitat (REC Required).

(11) Maintenance of existing archaeological and historical

avoidance markers, fencing, and signs.

(12) Archaeological surveys, inventories, and minor field

excavations.

(e) Procurement and Contract Activities:

(1) Routine procurement of goods and services, including routine

utility services and contracts for services and goods.

(2) Acquisition, installation, and operation of utility and

communication systems, data processing cable and similar electronic

equipment which use existing right-of-way, easement, distribution

systems, and/or facilities (REC required).

(3) Conversion of commercial activities under the provisions of

Army Regulation 5-20.

(4) Modification, product improvement, or configuration

[[Page 37871]]

engineering design change to materiel, structure or item that does not

change the original impact of the materiel, structure or item on the

environment (REC required).

(5) Procurement, testing, use, and/or conversion of a commercial

product (e.g., forklift, generator, chain saw, etc.) which does not

meet the definition of a weapon system (Part 15, DoDI 5000.2), and does

not result in any unusual disposal problem.

(f) Real Estate Activities:

(1) Grants, acquisitions, and renewal of easements for the use of

existing rights-of-way for use by vehicles; electrical, telephone, and

other transmission and communication lines; transmitter and relay

facilities; water, wastewater, stormwater, irrigation pipelines,

pumping stations, and facilities; and for similar public utility and

transportation uses (REC required).

(2) Grants, acquisitions, and renewal or termination of leases,

licenses, agreements, and permits for use of real property for its

intended uses. Examples include, but are not limited to the following:

existing Army controlled property and Army leases of civilian property

for its intended uses to include leases of classroom, office, or

warehouse space leased by a unit for that purpose (REC required).

(3) Disposal of excess easement areas to the underlying fee owner

(REC required).

(4) Transfer of real property to or from another military

department, or other Federal agency if there is no intended or

anticipated significant land use change (REC required).

(5) Transfer of installation utilities to a commercial or

governmental utility.

(6) Acquisition and disposal of land not to exceed 40 acres;

includes facilities on site (REC required).

(7) Timber harvest activities which remove 250,000 board feet or

less of merchantable wood products or salvage as part of an otherwise

categorically excluded real estate transaction or other activity (REC

required).

(g) Repair and Maintenance Activities:

(1) Routine repair and maintenance of buildings, airfields,

grounds, equipment, and other facilities. Examples include, but are not

limited to: Removal and disposal of asbestos-containing material (e.g.,

roof material and floor tile) or lead based paint, and repair of roofs,

doors, windows, or fixtures.

(2) Routine repairs and maintenance of roads, trails, and

firebreaks. Examples include, but are not limited to: grading and

clearing the roadside of brush with or without the use of herbicides;

resurfacing a road to its original conditions; pruning vegetation and

cleaning culverts; and minor soil stabilization activities.

(h) Hazardous Materials/Hazardous Waste Management and Operations:

(1) Use of gauging devices, analytical instruments, and other

devices containing sealed radiological sources; industrial radiography;

use of radioactive material in medical and veterinary practices;

possession of radioactive material incident to performing services such

as installation, maintenance, leak tests and calibration; use of

uranium as shielding material in containers or devices; and use of

radioactive tracers (REC required).

(2) Emergency responses in accordance with emergency response plans

(e.g., Spill Prevention Control and Countermeasure Plan (SPCC)/

Installation Spill Contingency Plan, and Chemical Accident and Incident

Response Plan) as required by the regulatory agency responsible for

release or discharge of oil or hazardous materials/substances; or

emergency actions taken by Explosive Ordnance Demolition (EOD)

detachment or Technical Escort Unit.

(3) Sampling, surveying, well drilling and installation, analytical

testing, site preparation, and intrusive testing to determine if

hazardous wastes, contaminants, or pollutants are present.

(4) Routine management to include transportation, distribution,

use, storage, treatment, and disposal of solid waste, medical waste,

hazardous waste and/or material that complies with EPA, Army, or other

regulatory agency requirements. This CX is not applicable to new

construction of such facilities.

(5) Routine management of solid waste, hazardous waste, and/or

material recycled, reclaimed, reused, or recovered in accordance with

EPA or other applicable regulatory agency requirements. This CX is not

applicable to major new construction.

(6) Routine research, testing, and operations conducted at

established laboratories, to include contractor-operated laboratories.

This does not include laboratories constructed for Biosafety Level 3 or

Biosafety Level 4.

(7) Conduct and maintenance requirements for silver recovery,

alternative sterilization systems, and alternatives for regulated

medical waste treatment methodology (REC required).

(8) Disposal of waste and facilities which require a state or

Federal permit and specific disposal methods are dictated by the

regulating agency (e.g., asbestos, PCBs, and underground storage

tanks).

(9) Reutilization, marketing, distribution, donation, and resale of

items, equipment, or materiel; normal transfer of items to the Defense

Logistics Agency. Items, equipment, or materiel that have been

contaminated with hazardous materials will be adequately cleaned and

will conform to the applicable regulatory agency's requirements.

(i) Training and Testing

(1) On-post simulated war games and other tactical and logistical

exercises involving units of battalion size or smaller.

(2) Training entirely of an administrative or classroom nature.

(3) Intermittent on- and off-post training activities that involve

no live fire or vehicles off established roads or trails. Uses include,

but are not limited to: Land navigation, physical training, FAA

approved aerial overflights, and small unit level training. (REC

required for off-post activities).

(4) Testing of materiel, including off-the-shelf materiel, on DA

controlled real estate where the tests are conducted in conjunction

with the normal execution of the test and evaluation mission (REC

required).

(j) Aircraft and Airfield Activities

(1) Infrequent, temporary (less than 30 days) increases in air

operations up to 50 percent of the typical installation aircraft

operation rate.

(2) Flying activities in compliance with Federal Aviation

Regulations, that are dispersed over a wide area and do not frequently

(more than once per day) pass near the same ground points.

(3) Installation of remote transmitter or receiver facilities on

the installation, or addition of communication channels to existing

facilities.

(4) Installation or upgrade of airfield equipment (e.g., runway

visual range equipment, visual approach slope indicators).

(5) Participation in airshows.

Subpart E--Environmental Assessments (EAs)

Sec. 651.22 Conditions and Actions Normally Requiring an EA.

An EA is a document intended to help proponents and other decision

makers determine the extent of environmental impacts of a proposed

action, alternatives, and whether those impacts are significant. An EA

will be prepared if a proposed action:

(a) Is not an emergency;

(b) Is not exempt or an exception;

(d) Does not qualify for environmental impact statement (EIS)

criteria or actions.

[[Page 37872]]

Sec. 651.23 EA Format.

Environmental Assessments will include:

(a) Review and approval page.

(b) Purpose and need for the action.

(d) The alternatives considered, including appropriate

consideration of the no-action alternative.

(e) Affected environment.

(f) Environmental consequences of the proposed action and the

alternatives. Discussion of impacts should provide sufficient analysis

to reach a conclusion of ``significance'', and not be merely a

quantification of facts.

(g) Conclusions regarding the significance of impacts, and a

recommendation whether to proceed with an EIS.

(h) Listing of agencies and persons consulted.

(i) References.

Sec. 651.24 Finding of No Significant Impact (FONSI).

(a) An EA results in either a FONSI or a Notice of Intent (NOI) to

prepare an EIS. Initiation of a NOI to prepare an EIS should occur at

any time in the decision process when it is determined that significant

effects may occur as a result of the proposed action.

(b) The FONSI is a formal document that:

(1) Briefly states the decision and the reasons why the decision

will not have a significant effect on the human environment.

(2) Summarizes mitigation commitments (costs and resources required

to complete a mitigation measure).

(3) Explicitly states that an EIS will not be prepared.

EA attached and incorporated by reference.

(d) The FONSI should reference other documents used to make the

decision or finding of no significant impact.

Sec. 651.25 Review and Approval of EAs and FONSIs.

(a) The proponent is responsible for preparing, staffing,

processing (e.g., distributing for comment) and approving the EA with

the concurrence of the decision maker.

(b) The proponent is responsible for preparing and staffing the

FONSI. The decision maker or designee is responsible for approving and

signing the FONSI.

Sec. 651.26 Public Involvement.

(a) Agencies, applicants, local governments, organizations, the

general public, and other interested and affected parties will be

involved as appropriate in the development of a proposal and

preparation of an EA. When considering the type and extent of public

notice and involvement, some of the factors to be weighed are:

(1) Magnitude of the proposed project/action.

(2) Extent of anticipated public interest, based on experience with

similar proposals.

(3) Urgency of the proposal.

(4) National security classification.

(b) Public involvement should begin early in the proposal

development stage, and during preparation of an EA. The direct

involvement of agencies with jurisdiction or special expertise is an

integral part of impact analysis, and provides information and

conclusions for incorporation into EAs. Unclassified documents

incorporated into the EA or FONSI by reference are public documents.

and other documents routinely sent to the public will be sent directly

to appropriate Congressional state and district offices.

(d) All EAs will be made available for at least a 30-day public

comment period prior to approval of the FONSI, except as provided in

paragraph (e) of this section.

(e) The next higher level of authority may waive the 30-day comment

period if all of the following conditions are met:

(1) Delay would jeopardize the Army's mission or an applicant's

ability to implement a proposal; and

(2) The EA/FONSI have been sufficiently staffed within the Army and

with agencies with special expertise or with authority over an aspect

of the proposal; and

(3) The action does not involve wetlands, floodplains, or the

circumstances and actions described in 40 CFR 1501.4(e)(2). Appropriate

public notice of the availability of the completed EA and approved

FONSI shall be made.

Sec. 651.27 Mitigation and Implementation Plan.

(a) Throughout the NEPA process, the proponent will consider

mitigating measures to avoid or minimize environmental harm. Mitigation

measures or programs will be clearly assessed in the EA and identified

in the FONSI for the decision maker to approve. Mitigation committed to

as part of the decision will be implemented by the proponent; for

purposes of identifying funding requirements, mitigations should be

ranked on a priority basis.

(b) An EA may have a no significant impact conclusion because of

specific mitigation measures. Such key measures must be accomplished in

the stated time frame to support the no significant impact conclusion,

or the significance of the project impacts must be reevaluated.

Subpart F--Environmental Impact Statements (EISs)

Sec. 651.28 Introduction.

An EIS is a public document designed to ensure that NEPA policies

and goals are incorporated early into the programs and actions of

Federal agencies. An EIS is intended to provide a full, open, and

balanced discussion of significant environmental impacts that may

result from a proposed action. Along with other project documentation,

the EIS provides a basis for informed decision making.

Sec. 651.29 Conditions Requiring an EIS.

In determining if an EIS is appropriate, the proponent should

consider whether the proposed action has the potential to:

(a) Significantly degrade environmental quality or public health or

safety.

(b) Significantly adversely affect historic or archaeological

resources, public parks and recreation areas, wildlife refuge or

wilderness areas, wild and scenic rivers, or aquifers.

the criteria for listing in the National Register of Historic Places,

or the National Registry of Natural Landmarks.

(d) Significantly adversely impact prime and unique farmlands

located off-post, wetlands, floodplains, coastal zones, or ecologically

important areas or other areas of unique or critical environmental

sensitivity.

(e) Result in significant or uncertain environmental effects, or

unique or unknown environmental risks.

(f) Significantly adversely affect a species or habitat listed or

proposed for listing on the Federal list of endangered or threatened

species, and Federal candidate species.

(g) Either establish a precedent for future action or represent a

decision in principle about a future consideration with significant

environmental effects.

(h) Adversely interact with other actions with individually

insignificant effects so that cumulatively significant environmental

effects result.

(i) Involve the production, storage, transportation, use, treatment

and disposal of hazardous or toxic materials to include medical wastes

that may have significant environmental impact.

[[Page 37873]]

Sec. 651.30 Actions Normally Requiring an EIS.

(a) The following actions normally require preparation of an EIS:

(1) Land acquisition greater than 640 acres.

(2) Construction of major ranges, such as multipurpose range

complexes (MPRCs).

(3) Expansion/Development of a central impact area.

(4) A Category I (major) weapons system acquisition program.

(5) Permanent restationing of a Brigade or larger (TOE) unit during

peacetime in the continental United States.

(6) Training activities where approved land use plans or regulatory

(e.g.; soil/land/water) plans or goals are exceeded.

(7) Master Plans for established installations where major new

developments or substantial changes in mission requirements are

proposed.

(8) Division or larger training activities conducted outside the

boundaries of an existing military reservation.

(9) Introduction or reintroduction of Federally listed endangered/

threatened species, or exotic species.

(10) Construction projects in a National Priorities List (NPL) site

or other major cleanup site that are not related to an environmental

restoration project.

(11) Proposal similar to past project or action that contributed to

or created a major cleanup action.

(12) Construction or location of a facility within a 100-year

floodplain where there is potential for significant release of

hazardous substances.

(13) Construction or upgrading of a laboratory to a Biosafety Level

4 (32 CFR part 627, App. G).

(14) Proposed action would create or expand an existing Noise Zone

III in a noise sensitive area.

(15) Construction of facility to store, treat, or dispose of large

quantities of chemical agents (e.g., mustard, sarin, tabun). Does not

include riot agents.

(b) While these are individual actions, one must consider the full

spectrum of actions that constitute a single proposed action. For

example, construction of a multipurpose range must also consider the

impacts of operations; land acquisition must consider the intended

uses.

Sec. 651.31 EIS Format.

The EIS must contain:

(a) Cover sheet.

(b) Summary.

(d) Purpose of and need for the action.

(e) Alternatives considered, including proposed action and no

action alternative.

(f) Affected environment (baseline conditions that may be

impacted).

(g) Environmental and socioeconomic consequences.

(h) List of preparers.

(i) Distribution list.

(j) Index.

(k) Appendixes (as appropriate).

Sec. 651.32 Approval Authority.

(a) The primary approval authority for EISs and related documents

(NOI, NOA) is the MACOM Commander, Program Executive Officer, Major

Subordinate Command Commander with Milestone Decision Authority for

acquisition/development programs, or HQDA equivalent for Army-wide

programs for which HQDA is the proponent.

(b) Approval authority may be delegated for actions that are

limited in scope (e.g., affect only one installation) and are without

apparent major controversy. This delegation extends to garrison

commanders and Program or Systems Managers).

scope of the proposal, public/agency controversy and sensitivity, and

the capacity to adequately and objectively administer the analysis.

Sec. 651.33 Notice of Intent (NOI).

(a) The NOI initiates the formal scoping process, and is prepared

by the proponent.

(b) For proposed actions that are widely controversial, or of

national concern or interest, the Office, Chief of Legislative Liaison

(OCLL) shall be notified of the pending action so that appropriate

congressional coordination may be effected.

announcements through its chain of command.

(d) The approved NOI shall be forwarded to the Army Federal

Copies of the Notice may also be distributed to agencies,

organizations, and individuals who have expressed interest. A copy of

the approved NOI shall be forwarded to the Director of Environmental

Programs, HQDA.

Sec. 651.34 Scoping.

This scoping process identifies the significant issues related to a

proposed action. Issues which are not significant or which have been

covered by prior environmental review are identified and eliminated

from detailed study. Proper scoping also identifies reasonable

alternatives, essential participants, and information needed for

analysis. Affected Federal, state, and local agencies, affected Indian

Tribes, and other interested persons are included as part of the

scoping process. Proper scoping reduces the chances of overlooking

significant issues or reasonable alternatives, and increases public

confidence in the decision making process.

Sec. 651.35 Preparation and Processing of the Draft Environment Impact

Statement (DEIS).

(a) The proponent prepares draft environmental impact statements.

Following appropriate staffing and revisions, the DEIS is approved for

public release by the delegated authority.

(b) Following approval, the proponent will forward five copies of

the DEIS to EPA for filing and notice in the Federal Register;

publication of EPA's notice of availability of weekly receipts (NWR)

commences the public comment period. The proponent will distribute the

DEIS prior to, or simultaneous with, filing with EP(A) Distribution

will include appropriate Federal, state, regional and local agencies;

Native American tribes; and organizations and private citizens who have

expressed interest in the proposed action.

national concern or interest, the Office, Chief of Legislative Liaison

(OCLL) shall be notified of the pending action so that appropriate

congressional coordination may be effected.

(d) The Office, Chief of Public Affairs, will coordinate public

announcements through its chain of command.

(e) The proponent may prepare a separate Notice of Availability

(NOA) to be published in the Federal Register by the Army Federal

the affected area(s). Publication should be on the same date as the EPA

publication.

Sec. 651.36 Public Review of the DEIS.

(a) The DEIS public comment period will be no less than 45 days. If

the statement is unusually long, a summary of the DEIS may be

circulated, with an attached list of locations where the entire DEIS

may be reviewed (for example, local public libraries).

(b) Distribution of the complete DEIS must include the following:

(1) Any Federal agency that has jurisdiction by law or special

expertise with respect to any environmental impact involved and any

appropriate Federal, state, or local agency

[[Page 37874]]

authorized to develop and enforce environmental standards.

(2) The applicant, if any.

(3) Any person, organization, or agency requesting the entire draft

environmental impact statement.

to publicize any meetings or hearings that may be scheduled.

Sec. 651.37 Preparation of the Final Environmental Impact Statement

(FEIS).

(a) Response to comments. The proponent shall consider and respond

appropriately to public comments. Responses to comments on the DEIS

will be incorporated by modification of the text and/or written

explanation. Similar comments should be grouped for a common response.

(b) If the changes to the DEIS are exclusively clarifications or

minor factual corrections, a document consisting of only the DEIS

comments, responses to the comments, and errata sheets may be prepared

and circulated. If such an abbreviated FEIS is anticipated, the DEIS

should contain a statement advising reviewers to keep the document so

they will have a complete set of ``final'' documents. The final EIS to

be filed with EPA will consist of a complete document containing a new

cover sheet, the errata sheets, comments and responses, and the text of

the draft EIS. Coordination, approval, filing, and public notice of an

abbreviated FEIS is the same as for a draft EIS.

prepare a new, complete FEIS. Preparation, coordination, approval,

filing, and public notice of the FEIS is the same as the process

outlined for the DEIS.

(d) The FEIS distribution must include any person, organization, or

agency that submitted substantive comments on the DEIS. One copy of the

FEIS will be forwarded to the U.S. Army Environmental Center.

(e) The FEIS will clearly identify the Army's preferred alternative

unless prohibited by law.

Sec. 651.38 Decision.

(a) No final decision on a proposed action will be made until at

least 30 days after EPA has published the NWR of the FEIS in the

Federal Register, or at least 90 days after the NWR of the DEIS,

whichever is later.

(b) The proponent will prepare a Record of Decision (ROD) for the

decision maker(s) signature, which will--

(1) Clearly state the decision. Describe the decision in sufficient

detail to address the significant issues and ensure long-term

monitoring and execution.

(2) Identify all alternatives considered by the Army in reaching

its decision, specifying the environmentally preferred alternative(s).

The Army will discuss preferences among alternatives based on relevant

factors including environmental, economic, and technical considerations

and agency statutory missions.

(3) Identify and discuss all such factors, including any essential

considerations of national policy that were balanced by the Army in

making its decision. Because economic and technical analyses are

balanced with environmental analysis, the agency preferred alternative

will not necessarily be the environmentally preferred alternative.

(4) State how those considerations entered into the final decision.

(5) State whether all practicable means to avoid or minimize

environmental harm from the selected alternative have been adopted, and

if not, why they were not. A monitoring and enforcement program will be

adopted and summarized for any mitigation.

approval of the ROD.

(d) For RODs involving actions of national interest or concern, the

proponent will prepare a Notice of Availability (NOA) to be published

in the Federal Register by the Army Federal Register Liaison Officer.

Processing and approval of the NOA is the same as for an NOI.

(e) RODs will be distributed to agencies with authority or

oversight over aspects of the proposal, cooperating agencies,

appropriate Congressional state and district offices, all parties that

are directly affected, and others upon request.

(f) One copy of the ROD will be forwarded to the U.S. Army

Environmental Center.

(g) Implementing the Decision. The Army will ensure that its

decision is properly execute(d) Mitigation and other conditions

assessed in EISs and accepted as part of the decision will be

implemented by the proponent. The proponent will--

(1) Include appropriate conditions in grants, permits, or other

approvals.

(2) Ensure mitigation measures are properly resourced and

implemented.

(3) Upon request, inform cooperating or commenting agencies on the

progress in carrying out adopted mitigation measures that they have

proposed and that were adopted by the agency making the decision.

(4) Upon request, make the results of relevant monitoring available

to the public and Congress.

Sec. 651.39 Supplemental EISs (SEISs).

(a) An SEIS is an addition to a draft and/or final EIS that has

been filed; a supplement should not be considered a major revision to

an EIS. If the changes to a proposed action, circumstances, or analysis

are significant, a revised (new) EIS shall be prepared rather than a

supplemental EIS. A process of publishing ``supplements'' can become

confusing to reviewers, and should be done only when an analysis can be

substantially improved without confusion.

(b) SEISs are prepared, approved, filed, and given notice in the

same way as draft and final EISs.

scoping undertaken, for a supplemental draft EIS that is expected to be

filed within one year from the date the original EIS being supplemented

(draft or final) was filed with EPA, and the affected publics are not

expected to change drastically (i.e., supplement does not involve

actions that may impact heretofore unaffected publics).

Sec. 651.40 The Army as a Cooperating Agency.

(a) The Army may be a Cooperating Agency:

(1) To provide information or technical expertise to a Lead Agency.

(2) To approve portions of a proposed action.

(3) To ensure the Army has an opportunity to be involved in an

action of another Federal agency which will affect the Army.

(b) Review and Approval of EISs and RODs

(1) Adequacy of an EIS is the responsibility primarily of the Lead

Agency. However, as a Cooperating Agency with approval authority over

portions of a proposal, the Army may adopt an EIS after a review

concludes the EIS adequately satisfies the Army's comments and

suggestions.

(2) If the Army is a major approval authority for the proposed

action, the appropriate Army official may sign the Record of Decision

prepared by the Lead Agency, or prepare a separate, more focused ROD.

If the Army's approval authority is only a minor aspect of the overall

proposal, such as issuing a temporary use permit, the Army need not

sign the Lead Agency's ROD nor prepare a separate ROD.

(3) The magnitude of the Army's involvement in the proposal will

determine the appropriate level and

[[Page 37875]]

scope of Army review of NEPA documents. If the Army is a major approval

authority or may be severely impacted by the proposal or an

alternative, the Army should undertake the same level of review as if

it were the Lead Agency; if the involvement is limited, the review may

be substantially less. The Lead Agency is responsible for overall

supervision of the EIS, and the Army will attempt to meet all

reasonable timeframes imposed by the Lead Agency.

Gregory D. Showalter,

Army Federal Register Liaison Officer.

[FR Doc. 96-17991 Filed 7-19-96; 8:45 am]

BILLING CODE 3710-08-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.