Policies and Responsibilities for Implementation of the National Environmental Policy Act Within the Department of the Navy

AGENCY:

Department of the Navy, Department of Defense.

ACTION:

Proposed rule.

SUMMARY:

The Department of the Navy (DoN) proposes to revise portions of its internal regulations that establish the responsibilities and procedures for complying with the National Environmental Policy Act (NEPA). An agency may determine that certain classes of actions normally do not individually or cumulatively have significant environmental impacts and therefore do not require further review under NEPA. Establishing these categories of activities, called categorical exclusions (CATEXs), in the agency's NEPA implementing procedures is a way to reduce unnecessary paperwork and delay. This revision clarifies what types of activities fall under CATEXs and normally do not require additional NEPA analysis.

DATES:

Comments must be received by May 1, 2019.

ADDRESSES:

You may submit comments, identified by docket number and title, by any of the following methods:

Federal eRulemaking Portal: https://www.regulations.gov/. Follow the instructions for submitting comments.

Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, Regulatory and Advisory Committee Division, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.

Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at https://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Mr. J. Dan Cecchini, Office of the Deputy Assistant Secretary of the Navy (Environment), 703-614-1173.

SUPPLEMENTARY INFORMATION:

Executive Summary

This action would revise certain DoN procedures for implementing the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). NEPA establishes national policy and goals for protection of the environment. Section 102(2) of NEPA contains certain procedural requirements directed toward the attainment of such goals. In particular, all Federal agencies are required to give appropriate consideration to the environmental effects of their proposed actions in their decision making and to prepare detailed environmental statements on recommendations or reports significantly affecting the quality of the human environment.

The proposed rule revises the DoN's implementing regulations, 32 CFR part 775, that were originally published on August 20, 1990 (55 FR 33898), as revised on February 23, 2004 (69 FR 8108). The 2004 changes revised and added to DoN's list of approved categorical exclusions (CATEXs); revised criteria for disallowing the application of listed CATEXs (i.e., hereinafter “extraordinary circumstances”) in which a normally excluded action may have a significant environmental effect; and assigned certain responsibilities to the Assistant Secretary of the Navy (Research, Development and Acquisition), the General Counsel of the Navy, and the Judge Advocate General of the Navy.

Over time, through study and experience, agencies may identify activities—such as routine facility maintenance—that do not need to undergo detailed environmental analysis because the activities do not individually or cumulatively have a significant effect on the human environment. Agencies can define and exclude from further review categories of such activities, called CATEXs, in their NEPA implementing procedures as a way to reduce unnecessary paperwork and delay.

Authority for This Regulatory Action

Authorities for this rule are 5 U.S.C. 301, NEPA, and 40 CFR parts 1500-1508. Under 5 U.S.C. 301, the head of a military department may prescribe regulations for the government of the department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. As noted above, NEPA requires Federal agencies to analyze their proposed actions to determine if they could have significant environmental effects. The White House Council on Environmental Quality (CEQ) implementing regulations (40 CFR 1507.3) require Federal agencies to adopt supplemental NEPA implementing procedures, including agency-specific CATEXs, either in the form of agency policy or a regulation, and to provide opportunity for public review prior to adoption.

Expected Impact of the Proposed Rule

This rule revises internal procedures allowing for consistent implementation across the DoN for its responsibilities under NEPA. Promulgating CATEXs will reduce government spending on compliance as well as shorten project approval timelines for those activities which do not need detailed environmental analysis. The DoN currently prepares approximately 3,000 CATEXs annually (approximately 2,000 by the U.S. Navy and approximately 1,000 by the U.S. Marine Corps).

Development Process

In 2015, the Office of the Deputy Assistant Secretary of the Navy for Environment directed a review of 32 CFR 775.6(e) and (f), which identify the DoN's criteria for excluding application of listed CATEXs and list the DoN's CATEXs, respectively. A review panel (hereinafter “panel”) was formed to provide administrative support and expertise to inform the efforts. The professionals comprising the panel were current DoN environmental practitioners with numerous years of NEPA planning and compliance experience, including the preparation of environmental documentation such as CATEX decision documents, environmental assessments (EAs), environmental impact statements (EISs), findings of no significant impact, and records of decision. The panel was supported by a legal working group comprised of experienced environmental law attorneys from the DoN's Office of the General Counsel and Office of the Judge Advocate General with advanced education and experience providing legal and policy advice to Federal agency decision makers, managers, and practitioners on environmental planning and compliance responsibilities.

The panel reviewed and analyzed the supporting rationale, scope, applicability, and wording of each existing CATEX and extraordinary circumstance set forth in 32 CFR 775.6(e) and (f). The panel developed and deliberated on each proposed new CATEX and extraordinary circumstance change, balancing the resulting increase in administrative efficiency in NEPA implementation and compliance against the risk of misinterpretation and misapplication. During that process, numerous environmental professionals, representing various constituencies within the DoN, supported the panel's review and participated in meetings and conference calls over the course of 18 months to reach agreement on this proposed rule.

In accordance with CEQ's regulations and its 2010 CATEX guidance, “Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act,” the DoN substantiated the proposed new and revised CATEXs by reviewing EA and EIS analyses to identify the environmental effects of previously implemented actions; benchmarking other Federal agencies' experiences; and leveraging the expertise, experience, and judgment of DoN professional staff. The panel noted that other Department of Defense (DoD) entities and numerous other Federal agencies have CATEXs for activities that are similar in nature, scope, and impact on the human environment as those undertaken by the DoN. The panel reviewed many of those CATEXs before proposing changes to 32 CFR 775.6(e) and (f).

In addition, the panel recognized that all Federal agencies, including the DoD as a whole, with very few limitations, must meet the same requirements to consider environmental issues in decisionmaking with an ultimate goal to protect the environment. Based on experience with, or on behalf of, other Federal agencies, the panel determined that the characteristics of many of the DoN's activities were not significantly different from those performed by other Federal agencies, including other entities within the DoD.

The CEQ was integral in the process to ensure that proposed changes to the DoN's CATEXs meet NEPA requirements. The DoN provided the CEQ with proposed draft changes and justifications for each proposed change to 32 CFR 775.6(e) and (f). Many of the changes that the DoN is proposing are administrative in nature to clarify application of a particular CATEX. On July 7, 2017, the CEQ concurred with the DoN proceeding to formal rulemaking on these proposed changes.

Proposed Revisions Generally

Through the development process discussed in this preamble, the panel determined that the proposed changes to DoN's CATEXs and extraordinary circumstances encompass activities that normally do not individually or cumulatively have a significant impact on the human environment. Only the provisions discussed below are proposed for substantive revision. In addition, minor clarifications that do not change the CATEX meaning are proposed.

Proposed Revisions to Extraordinary Circumstances [32 CFR 775.6(e)]

The DoN's criteria for disallowing the application of listed CATEXs are set forth in 32 CFR 775.6(e). This proposed rule substantially revises paragraph (e) to provide specific introductory guidance regarding those circumstances under which use of a CATEX is inappropriate, reflecting a determination by the DoN that further environmental analysis is needed. Under this proposed change, a determination whether a CATEX is appropriate for a proposed action, even if one or more extraordinary circumstances are present, should focus on the action's potential effects and consider the environmental significance of those effects in terms of both context (i.e., consideration of the affected region, interests, and resources) and intensity (i.e., severity of impacts). This proposed change provides discretion that is missing from the current regulation and which can be applied when considering whether a CATEX is appropriate. This proposed change mirrors the extraordinary circumstances introductory language contained in National Oceanic and Atmospheric Administration (NOAA) and U.S. Forest Service NEPA regulations.

The proposed rule adds a new paragraph (e)(2) which states that if a decision is made to apply a CATEX to a proposed action that is more than administrative in nature, the decision must be formally documented per existing Navy and Marine Corps policy. For actions with a documented CATEX where one or more extraordinary circumstances are present, a copy of the executed CATEX decision document (e.g., Record of CATEX or Decision Memorandum) must be forwarded for review to Navy Headquarters or Marine Corps Headquarters, as appropriate, before the action is implemented. This new requirement to send the documented CATEX to headquarters for review will end two years from the date of the final rule implementing the DoN's revised extraordinary circumstances and CATEXs.

The proposed rule would amend and re-number current paragraphs (e)(1) through (5) as (e)(1)(i) through (v). The proposed rule would not revise paragraphs (e)(1) through (4) but they would be re-numbered (e)(1)(i) through (iv). Regarding the enumerated extraordinary circumstances set forth in paragraphs (e)(5)(i) through (v) (that would be re-numbered (e)(1)(v)(A) through (E)), the proposed rule revises paragraphs (e)(5)(i), (iii), and (iv) (and would re-number them (e)(1)(v)(A), (e)(1)(v)(C), and (e)(1)(v)(D)). Paragraph (e)(5)(i) (which would be renumbered as (e)(1)(v)(A)) would be revised to address those actions that, as determined after coordination with subject matter experts within the agency and, if appropriate with resources agencies (e.g., National Marine Fisheries Service, United States Fish and Wildlife Service), would have more than a negligible or discountable effect on Federally protected species under the Endangered Species Act, or would require issuance of an Incidental Harassment Authorization or Letter of Authorization under the Marine Mammal Protection Act. The current regulation only addresses those actions which have an adverse effect on Federally listed endangered or threatened species or marine mammals without consideration of the degree of effect. This change would provide flexibility to use a CATEX even if impacts under the Endangered Species Act or Marine Mammal Protection Act may be adverse. For the Endangered Species Act, this change mirrors language contained in NOAA's NEPA regulations. For the Marine Mammal Protection Act, this change links the trigger for this existing extraordinary circumstance to the specific regulatory threshold language of Marine Mammal Protection Act guidelines. Specifically, the panel determined that the use of the term “adverse effect” in the current regulation is incongruent with the prevailing resource management handbooks and guidelines of the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS).

Regarding those actions adversely affecting the size, function, or biological value of wetlands, paragraph (e)(5)(iii) (to be re-numbered as (e)(1)(v)(C)) is revised to clarify that general permits are issued on a nationwide, regional, or state basis for particular categories of activities. This administrative change clarifies, but does not change the effect of, the existing extraordinary circumstance.

Regarding those actions having an adverse effect on archaeological resources or resources listed or determined to be eligible for listing on the National Register of Historic Places (including, but not limited to, ships, aircraft, vessels, and equipment), paragraph (e)(5)(iv) (to be re-numbered as (e)(1)(v)(D)) is revised to include those circumstances where compliance with Section 106 of the National Historic Preservation Act has not been resolved through an agreement executed between the DoN and the appropriate historic preservation office and other appropriate consulting parties. This proposed change will eliminate the need to prepare an EA for an action whose sole impact is tied to a potential adverse impact on a historic structure. This approach is consistent with guidance contained in the March 2013 CEQ and Advisory Council on Historic Preservation document “NEPA and NHPA: A Handbook for Integrating NEPA and Section 106.”

Proposed Revisions to Categorical Exclusions [32 CFR 775.6(f)]

32 CFR 775.6(f)(1) through (45) lists the 45 CATEXs currently promulgated by the DoN. This proposed rule would revise six CATEXs (i.e., #8, #11, #14, #32, #34, and #36), delete one CATEX (#15), and add five new CATEXs. CATEX #32 would be relocated and re-numbered as CATEX #29. Finally, current CATEXs #1 through #45 would be re-numbered as #1 through #44 as a result of the proposed deletion of CATEX #15 and re-numbering of CATEX #32, and the proposed new CATEXs would be numbered as #45 through #49.

CATEX #8 (32 CFR 775.6(f)(8)): This proposed change would add ranges to the list of items subject to routine repair and maintenance. While the DoN regularly encounters routine repair and maintenance requirements on its ranges, this proposed revision would cover the repair and maintenance of existing range assets; it would not cover the conversion to a new range capability or a change in the use of the range (e.g., adding additional infrastructure to support new targets). The panel also determined that the use of new examples such as “general building/structural repair, landscaping, and grounds maintenance” would further clarify the types of activities covered by this CATEX.

CATEX #11 (32 CFR 775.6(f)(11)): This proposed rule would add submarines and ground assets to the list of mobile asset examples to clarify application of this CATEX. The panel added the term “home basing” to provide the appropriate terminology for aircraft or ground asset reassignment not covered by the term “homeporting,” which is used only in reference to ship or vessel reassignments. The panel determined that the use of new examples such as temporary reassignments and dismantling or disposal in this CATEX would further clarify application of this CATEX. CATEX #14 (32 CFR 775.6(f)(14)) and CATEX #15 (32 CFR 775.6(f)(15)): This proposed change would combine CATEX #14 and CATEX #15 into a single CATEX #14.

CATEX #32 (32 CFR 775.6(f)(32)): This proposed change would delete “renewals” from the current CATEX, because renewal actions are covered by CATEX #31 (to be re-numbered as CATEX #30). Furthermore, the proposed rule would re-number existing CATEX #32 as CATEX #29 so that initial real estate in grants would precede “renewals” in the CATEX list.

CATEX #34 (32 CFR 775.6(f)(34)): The proposed rule would revise CATEX #34 (to be re-numbered as #33) to cover new construction that is similar to or compatible with existing land use (i.e., site and scale of construction are consistent with those of existing adjacent or nearby facilities) and, when completed, the use or operation of which complies with existing regulatory requirements (e.g., a building within a cantonment area with associated discharges and runoff within existing handling capacities). As an example, for the proposed construction of a building in a previously disturbed cantonment area where this would be the first building of its type, as long as the building is generally consistent with the designated land use of the area, this revised CATEX could be applied (assuming no other extraordinary circumstances). The test for whether this CATEX can be applied should focus on whether the proposed action generally fits within the designated land use of the proposed site. This proposed change would clarify the term “similar to existing land use” in the current CATEX, which the panel determined is often confusing and prone to overly narrow interpretation.

CATEX #36 (32 CFR 775.6(f)(36)): The proposed rule would revise CATEX #36 (to be re-numbered as #35) by adding “modernization” and “repair” to clarify application of this CATEX. The panel felt it was important to include these terms to support energy resilience, alternative energy, and renewable energy projects given the DoN's emphasis on energy management throughout the Department.

Proposed New Categorical Exclusions

CATEX #45: (32 CFR 775.6(f)(45)): With the re-numbering of current CATEX #45 as #44, this proposed new CATEX would cover natural resources management actions undertaken or permitted pursuant to agreement with or subject to regulation by Federal, State, or local organizations having management responsibility and authority over the natural resources in question, including, but not limited to, prescribed burning, invasive species actions, timber harvesting, and hunting and fishing during seasons established by state authorities pursuant to their State fish and game management laws. This proposed new CATEX would require that the natural resources management actions must be consistent with the overall management approach of the property as documented in an Integrated Natural Resources Management Plan (INRMP) or other applicable natural resources management plan. This is a reinstatement of a former CATEX #27 that was eliminated as unnecessary by the DoN in 2004 (69 FR 8108, 8109) that covered routine maintenance of timber stands, including down-wood firewood permits, hazardous tree removal, and sanitation salvage. It was assumed at that time that forest management activities would occur under the auspices of an INRMP for which an EA or EIS had been prepared and a CATEX would therefore be unnecessary. (A memorandum dated August 12, 1998, from the Assistant Secretary of the Navy for Installations and Energy to the Vice Chief of Naval Operations and Assistant Commandant of the Marine Corps required an EA or EIS be prepared for INRMPs.) The DoN prepares INRMPs on its installations and ranges that the USFWS and the appropriate State fish and wildlife agency review and approve. In accordance with DoN policy, a NEPA review (typically an EA) is conducted for each INRMP. Individual projects may receive additional, site-specific NEPA review, and existing CATEX #8 or #42 may apply. Individual projects are typically conducted in a single season, are limited in geographic scope, and benefit native vegetation and species habitat. Any indirect impacts to soils, wetlands, or riparian habitat should be minor and temporary and should result in an overall beneficial effect on the natural resources being managed. Review by the DoN of previous actions, NEPA analyses, and other agency CATEXs shows that no individually or cumulatively significant effects are typically attributable to the types of activities included in the proposed reinstatement of this CATEX. In reinstating this CATEX, the panel noted that INRMP coverage may not be robust or detailed enough with respect to certain practices in the field (e.g., invasive species control or controlled burns), noting that EAs for INRMPs have historically included only general discussions of these activities. This reinstated CATEX would cover certain natural resources management practices not discussed in detail in an INRMP, but which through experience are known to have no significant impacts on the environment.

CATEX #46 (32 CFR 775.6(f)(46)): This proposed new CATEX would cover minor repairs in response to wildfires, floods, earthquakes, landslides, or severe weather events that threaten public health or safety, property, or natural and cultural resources, and that are necessary to repair or improve lands unlikely to recover to a management-approved condition (i.e., the previous state) without intervention. Covered activities must be completed within one year of the causal event and may not include the construction of new permanent roads or new permanent infrastructure. Such activities include, but are not limited to the repair of existing essential erosion control structures or installation of temporary erosion controls; replacement or repair of storm water conveyance structures, roads, trails, fences, and minor facilities; revegetation; construction of protection fences; and removal of hazard trees, rocks, soil, and other mobile debris from, on, or along roads, trails, or streams. During the development process summarized above, DoN entities recommended the panel develop a new CATEX that addressed minor repairs in response to wildfires, floods, earthquakes, landslides, or severe weather events. The DoN is proposing this CATEX which is similar to the Bureau of Land Management's (BLM's) categorical exclusion I (Departmental Manual, Part 516, 11.9 https://www.doi.gov/sites/doi.gov/files/uploads/doi_and_bureau_categorical_exclusions_feb2018.pdf ). The DoN consulted with the BLM and found no record of significant impacts, either individually or cumulatively, resulting from the types of activities included in BLM's CATEX. When wildfires, floods, earthquakes, landslides, and severe weather events occur, the DoN, often on short notice, is required to execute immediate repairs to protect personnel and resources. These repairs typically consist of minor, localized, and temporary actions to stabilize a specific situation. Examples include stabilizing slopes with berms and earthwork after wildfires and heavy rains to preclude large erosion events; fixing culverts, roads, and fences; and removing damaged trees and other debris. In most cases, the intended purpose of the activity is to stabilize a threatening situation so that overall resource impacts are minimized. Any impacts on soils, wetlands, or other natural resources are typically minor and temporary and should result in an overall beneficial effect on installation resources.

CATEX #47 (32 CFR 775.6(f)(47)): This proposed new CATEX would cover the modernization (upgrade) of range and training areas, systems, and associated components that supports current testing and training levels and requirements. It would not cover those actions which would include a substantial change in the type or tempo of operation, or the nature of the range (i.e., creating an impact area in an area where munitions had not been previously used). During the development process described above, DoN entities recommended the panel develop a new CATEX that covered the modernization and upgrade of range and training area systems and components. Rather than provide policy guidance advising environmental planners to use another existing CATEX for such projects (e.g., CATEX #8), the panel determined that a new CATEX would be appropriate and would help to reduce the number of EAs being prepared for activities that DoN has in the past found not to have individual or cumulative significant impacts on the human environment. This CATEX is intended to cover upgrades to range assets within existing range footprints and would complement the proposed change to the DoN's existing CATEX #8, to which this proposed rule adds the term “ranges.” Any actions taken under this new CATEX cannot result in a significant change in how the range is used, thus reducing the potential for any new operational impacts. Under this new CATEX, any impacts to soils, wetlands, or other natural resources would be minor and temporary, and the exclusionary criteria set forth in 32 CFR 775.6(e) related to wetlands, endangered species, and cultural resources would require the preparation of an EA or EIS. The DoN's review of previous actions and NEPA analyses shows that no individually or cumulatively significant effects are typically attributable to the types of activities covered by this proposed new CATEX.

CATEX #48 (32 CFR 775.6(f)(48)): This proposed new CATEX would cover revisions or updates to INRMPs that do not involve substantially new or different land use or natural resources management activities and for which an EA or EIS was previously prepared that does not require supplementation pursuant to 40 CFR 1502.9(c)(1). This new CATEX would reduce the number of EAs being unnecessarily prepared for activities that inherently do not have individually or cumulatively significant impacts on the human environment. This new CATEX would also document (via the CATEX process) that the INRMP update is covered by the original NEPA documentation. Current DoN guidance requires an installation to conduct informal INRMP reviews each year and formal INRMP reviews every five years with the USFWS (and NMFS, as appropriate) and State partners. Necessary INRMP modifications and updates that are identified during an annual review can usually be accomplished under the initial NEPA documentation. Upon presentation of a proposed INRMP update, the NEPA practitioner may consider the proposal as a within-scope modification. Thus, the responsible command would be comparing a proposed revision against the original action as documented (per existing NEPA processes). Under many circumstances, the conclusion may be that the update is not out of scope and the action is covered by the original NEPA documentation. Proposed INRMP updates with significant differences from the original INRMP would call for additional NEPA analysis via revision or new documentation, usually at the EA level. The DoN has prepared comprehensive EAs for INRMPs for all Navy and Marine Corps properties with significant natural resources. In many cases, installations/bases have gone through four or five formal, five-year INRMP reviews and updates. The overall management strategy for most Navy and Marine Corps facilities is well established. After reviewing a number of NEPA documents for INRMP updates and revisions, it is clear that NEPA documents are not uncovering new environmental impacts and are adding little, if any, value to the decision-making process. There should be only minor impacts to natural resources from non-substantial management adjustments. Additionally, there should be an overall beneficial effect on the natural resources from the implementation of an INRMP that has been approved by the USFWS and/or NMFS, as appropriate, and relevant state agencies. The DoN review of previous NEPA analyses shows that no individually or cumulatively significant effects are typically attributable to the types of activities covered by this new CATEX.

CATEX #49 (32 CFR 775.6(f)(49)): This proposed new CATEX would cover DoN actions that occur on another Military Service's property where the action qualifies for a CATEX of that Service, or for actions on property designated as a Joint Base or Joint Region that would qualify for a CATEX of any of the Services included as part of the Joint Base or Joint Region. If the DoN action proponent chooses to use another Service's CATEX to cover a proposed action, the DoN must get written confirmation the other Service does not object to using their CATEX to cover the DoN action. The DoN official making the CATEX determination must ensure the application of the CATEX is appropriate and that the DoN proposed action was of a type contemplated when the CATEX was established by the other Service. Use of this CATEX would require preparation of a Record of CATEX or Decision Memorandum. This new CATEX leverages the thorough administrative record reviews undertaken by other Military Services that perform similar covered actions across the DoD, which is becoming more “purple” (i.e., bases that host multiple Military Services). For Navy and Marine Corps actions that occur on either Army or Air Force property, given that CATEXs were established for categories (or types) of activities, use of the CATEX by another Military Service should not have significant impacts if the activity clearly fits the intent and wording of that CATEX. Currently eight out of twelve joint bases throughout the DoD involve the DoN: (1) Joint Base McGuire-Dix-Lakehurst, New Jersey (Naval Air Engineering Station Lakehurst, Fort Dix, and McGuire Air Force Base (AFB)); (2) Joint Base Andrews-Naval Air Facility Washington, Maryland (Naval Air Facility Washington and Andrews AFB); (3) Joint Base Anacostia-Bolling, DC (Bolling AFB and Naval Station Anacostia); (4) Joint Base Myer-Henderson Hall, Virginia (Henderson Hall (USMC) and Fort Myer); (5) Joint Base Pearl Harbor-Hickam, Hawaii (Hickam AFB, Hawaii and Naval Station Pearl Harbor); (6) Joint Base Charleston, South Carolina (Naval Weapons Station Charleston and Charleston AFB); (7) Joint Expeditionary Base Little Creek-Fort Story, Virginia (Fort Story and Naval Expeditionary Base Little Creek); and (8) Joint Region Marianas, Guam (Andersen AFB and Naval Base Guam). The Department of the Army has a CATEX ((b)(13)) that is very similar to this proposed new CATEX (32 CFR Appendix B to Part 651). The DoN used Army experience with this CATEX as a benchmark.

Regulatory Reviews

Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, it has been reviewed by the Office of Management and Budget (OMB).

Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This proposed rule is not expected to be subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this proposed rule is expected to be related to agency organization, management, or personnel.

National Environmental Policy Act

The CEQ does not direct agencies to prepare a NEPA analysis before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. The DoN NEPA procedures assist in the fulfillment of its responsibilities under NEPA, but are not final determinations of what level of NEPA analysis is required for particular actions. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing agency NEPA procedures does not require NEPA analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd, 230 F.3d 947, 954- 55 (7th Cir. 2000).

Paperwork Reduction Act

The proposed action does not contain a collection-of-information requirement subject to review and approval by the OMB under the Paperwork Reduction Act.

Regulatory Flexibility Act

The DoN has determined that this action is not subject to the relevant provisions of the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)).

Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This proposed rule does not impose any mandates on small entities. This action addresses the DoN's internal procedures for implementing the procedural requirements of the NEPA.

Executive Order 13132: Federalism

The DoN has determined that this action does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively. This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action contains no federal mandates for state and local governments and does not impose any enforceable duties on state and local governments. This action addresses only internal DoN procedures for implementing NEPA.

List of Subjects in 32 CFR Part 775

• Environmental impact statements

Accordingly, 32 CFR part 775 is proposed to be amended to read as follows:

PART 775—POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY

1. The authority for part 775 continues to read as follows:

Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR parts 1500-1508.

2. Amend § 775.6 by revising paragraphs (e) and (f) as follows: