[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Notices]
[Pages 33043-33066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13111]
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DEPARTMENT OF HOMELAND SECURITY
Environmental Planning Program
AGENCY: Department of the Homeland Security.
ACTION: Notice of proposed directive; request for comments.
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SUMMARY: The purpose of this notice is to provide an opportunity for
public comment on the Department of Homeland Security draft directive
containing policy and procedures for implementing the National
Environmental Policy Act of 1969 (NEPA), as amended, Executive Order
11514, as amended, Executive Order 12114, and Council on Environmental
Quality (CEQ) regulations for implementing the procedural provisions of
NEPA (40 CFR parts 1500-1508). Pursuant to CEQ regulations, the DHS is
soliciting comments on its proposed internal management directive from
members of the interested public.
DATES: Comments and related material must be received by July 14, 2004.
ADDRESSES: Please submit your comments by only one of the following
means: (1) By mail to: Environmental Planning, Office of Safety and
Environment, Management Directorate, Department of Homeland Security,
Washington, DC 20528
(2) By hand delivery to: Environmental Planning, Office of Safety
and Environment, Management Directorate, Department of Homeland
Security, Anacostia Naval Annex, Building 410, 245 Murray Lane, SW.,
Washington, DC 20528.
(3) By Fax to: (202) 772-9749.
In choosing among these means, please give due regard to the
difficulties and delays associated with delivery of mail through the
U.S. Postal Service.
FOR FURTHER INFORMATION CONTACT: Mr. David Reese, Office of Safety and
Environment, Department of Homeland Security, 202.692.4224. e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Request for Comments
The Department of Homeland Security encourages interested persons
to submit written data, views, or comments. Persons submitting comments
should please include their name, address, and other appropriate
contact information. You may submit your comments and material by one
of the means listed under ADDRESSES. If you submit them by mail or hand
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11
inches, suitable for copying and electronic filing. If you submit them
by mail and would like to know that they were received, please enclose
a stamped, self-addressed postcard or envelope. The DHS will consider
all comments received during the comment period.
Background
This directive establishes policy and procedures to ensure the
integration of environmental considerations into the unique mission of
the Department of Homeland Security (DHS). It outlines roles and
responsibilities for compliance with NEPA, as well as other laws and
requirements for stewardship of the environment. This directive
establishes a framework for the balanced and systematic consideration
of environmental stewardship in the planning and execution of DHS
activities.
DHS is composed of five major directorates and three services:
Border and Transportation Security, Emergency Preparedness and
Response, Science and Technology, Information Analysis and
Infrastructure Protection, Management, and Bureau of Citizenship and
Immigration Services, U.S. Coast Guard, and Secret Service. This
organization resulted from a total of 22 Federal agencies that were
brought together in March of 2003 and organized to form the new
Department. DHS has the mission to lead the unified national effort to
secure America. It has the responsibility to prevent and deter
terrorist attacks and protect against and respond to threats and
hazards to the Nation. As a part of this mission, DHS ensures safe and
secure borders, facilitates lawful immigrants and visitors, and
promotes the free flow of commerce among nations.
The policies and procedures in the Management Directive place
particular emphasis on the requirements of the project proponent to
ensure that environmental stewardship requirements are appropriately
integrated into the performance of DHS missions. Substantive or
procedural requirements in this directive apply to the program planning
and project development in all DHS directorates and organization
elements. In particular, there is special consideration of the
requirements for intergovernmental coordination, public involvement,
dispute resolution, handling of sensitive information, and emergency
procedures in DHS decisionmaking.
This proposed management directive includes processes for preparing
Environmental Assessments, Findings of No Significant Impact, and
Environmental Impact Statements. The DHS proposes to use this directive
in conjunction with NEPA, the CEQ regulations at 40 CFR parts 1500-
1508, and other pertinent environmental regulations, Executive Orders,
statutes, and laws developed for the consideration of environmental
impacts of Federal actions.
This directive was established by reviewing the actions and
existing regulations of all the elements that were integrated into the
new department. Under the direction of the Office of Safety and
Environment in the Management directorate, a panel of experts in
environmental policy and law were drawn from the elements to prepare
the new directive. This panel of experts worked for over 12 months to
develop this draft directive.
In preparing this directive, the panel of experts reviewed existing
law and requirements, former agency policies, existing guidance on the
implementation of NEPA from the Council on Environmental Quality, and
the latest studies on the implementation of NEPA. In addition, they
examined policies and procedures from other Federal agencies to
identify policies that could be appropriate for the missions of the new
Department.
An area of emphasis included the development of appropriate
categorical exclusions. Since DHS was brought together and organized
around a core mission, many of the organizational elements are engaged
in similar activities. Nearly all DHS component elements engage at
various times in activities related to law enforcement, emergency
response and recovery, screening and detection for dangerous or illegal
materials or individuals, research and development of new systems or
processes related to homeland security, and training exercises, among
other things. These activities are performed in various environmental
settings, for example both the Transportation Security Administration
(TSA) and the Customs and Border Protection (CBP) screen packages for
dangerous or illegal materials, but TSA works at airports while CBP
works at borders. Many of the new elements of the Department came from
agencies that had established categorical exclusions covering all or
parts of their activities. These legacy categorical exclusions were
evaluated for their broader applicability to similar missions and
activities throughout the new Department. Likewise, the panel of
experts examined existing categorical exclusions from other Federal
departments to determine whether any might be adopted for DHS actions
of a similar nature, scope, and intensity as those performed by other
Federal agencies. The resulting list of proposed categorical exclusions
in Attachment A of the Management Directive includes a large number
that are applicable to all component elements of the DHS.
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In addition, the panel reviewed the history of environmental
assessments and environmental impact statements and the administrative
history of the legacy categorical exclusions in developing proposed
categorical exclusions in Attachment A of the Management Directive. The
resultant list of proposed categorical exclusions contains several that
are specific to certain organizational elements of DHS. It is also
important to note that the directive maintains those categorical
exclusions previously established by both the Coast Guard and the
Federal Emergency Management Agency.
A copy of this Federal Register publication, as well as a summary
of the administrative record for the list of categorical exclusions is
available on the Internet at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0468.xml.
The Department of Homeland Security solicits public review of this
document and will review and consider those comments before this
directive is final.
Tom Ridge,
Secretary.
Management Directive 5100.1, Environmental Planning Program
1. Purpose
A. This directive establishes policy and procedures to ensure the
integration of environmental considerations into Department of Homeland
Security (DHS) mission planning and project decision making.
Environmental stewardship, homeland security, and economic prosperity
are compatible and complementary. This directive establishes a
framework for the balanced and systematic consideration of these
factors in the planning and execution of DHS activities.
B. In particular, this directive establishes procedures that the
DHS will use to comply with The National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321-4335) and the Council on Environmental
Quality (CEQ) Regulations for Implementing the Procedural Provisions of
NEPA (40 CFR parts 1500-1508). NEPA is the basic charter and foundation
for stewardship of environmental resources in the United States. It
establishes policy, sets goals, and provides a tool for carrying out
federal environmental policy. NEPA requires federal agencies to use all
practical means within their authority to create and maintain
conditions under which people and nature can exist in productive
harmony and fulfill the social, economic, and other needs of present
and future generations of Americans.
C. This directive provides the means for the DHS to follow the
letter and spirit of NEPA and comply fully with the CEQ regulations.
This directive adopts and supplements the CEQ regulations, and is to be
used in conjunction with the CEQ regulations. However, this directive
encompasses requirements in addition to NEPA and establishes the DHS
Environmental Planning Program.
2. Scope
A. Substantive or procedural requirements in this directive apply
to all DHS elements and are to be used in all program planning and
project development. This Directive applies to any DHS action with the
potential to affect the quality of the environment of the United
States, its territories, or its possessions. It also addresses those
DHS actions having effects outside the United States, its territories,
or its possessions under Executive Order 12114, Environmental Effects
Abroad. More specifically, this Directive applies to:
1. All areas of the DHS mission and operations planning
2. Promulgation of regulations
3. Acquisitions and procurements
4. Asset management
5. Research and development
6. Grants programs
B. This Directive supplements the regulations for implementing NEPA
published by CEQ at 40 CFR Parts 1500 through 1508. In the case of any
apparent discrepancies between these procedures and the mandatory
provisions of the CEQ regulations, the CEQ regulations will govern.
3. Authorities
This Directive is governed by numerous Public Laws, Regulations,
and Executive Orders, such as, but not limited to:
A. The National Environmental Policy Act (42 U.S.C. Sec. 4321 et.
seq.)
B. Environmental Quality Improvement Act of 1970, as amended (42
U.S.C. Sec. 4321-4335)
C. Marine Mammal Protection Act (16 U.S.C. Sec. 1361 et. seq.)
D. The National Historic Preservation Act (16 U.S.C. Sec. 470 et.
seq.)
E. The Clean Air Act (16 U.S.C. Sec. 470 et. seq.)
F. Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et.
seq.)
G. The Coastal Zone Management Act (16 U.S.C. Sec. 1451 et. seq.)
H. Endangered Species Act (16 U.S.C. Sec. 1531 et. seq.)
I. National Marine Sanctuaries Act (16 U.S.C. Sec. 1431 et. seq.)
J. CEQ Regulations November 29, 1978 (43 FR 55978) as 40 CFR Parts
1500-1508
K. Executive Order 11514, Protection and Enhancement of
Environmental Quality, March 5, 1970, 35 FR 4247, as amended by E.O.
11991, May 24, 1977, 42 FR 26967
L. Executive Order 11988, Floodplain Management, 42 FR 26971
M. Executive Order 11990, Protection of Wetlands, 42 FR 26961
N. Executive Order 12114, Environmental Effects Abroad of Major
Federal Actions, 44 FR 1957
O. Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629
4. Definitions
A. All definitions of words and phrases in 40 CFR Part 1508 apply
to this Directive.
B. Additional definitions of words and phrases as used in this
Directive are contained in Appendix A.
5. Responsibilities
Responsibility for oversight of the DHS NEPA activities, unless
otherwise delegated, is as follows:
A. The Secretary of DHS (Secretary) recognizes the long term value
of incorporating environmental stewardship into the planning and
development of all the DHS missions and activities and exercises the
ultimate responsibility in the Department to fulfill environmental
planning requirements. To this end, the Secretary has delegated
specific authority for environmental planning to the DHS Department
Environmental Executive, the Chief of Administrative Services, the
Director of Office of Safety and Environment, and to other DHS
officials as set forth in this Directive. The following objectives are
to be used in guiding environmental planning activities in the DHS:
1. Timely and effective support
2. Sustainable capability
3. Consistency with fiscal and other considerations of national
policy
4. Full compliance with all appropriate environmental planning
laws, Executive Orders, regulations, and other requirements, such as
environmental management systems (EMS)
B. The DHS Department Environmental Executive (DEE) is the DHS
Undersecretary for Management and has authority to fulfill the
Secretary's objectives by ensuring that the Department fully integrates
environmental planning requirements into all the DHS missions and
activities.
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The DEE recognizes that environmental planning is an important and
necessary part of good management practice in the Department. To this
end, the DEE has delegated specific authority for environmental
planning to the Chief of Administrative Services, the Director of the
Office of Safety and Environment, and to other DHS officials as set
forth in this Directive. In exercising the authority delegated from the
Secretary, the DEE will perform the following roles:
1. Ensure that Under Secretaries and Designated DHS Officials
incorporate environmental planning and stewardship requirements into
their policies and procedures to fulfill the Secretary's objectives and
the requirements of NEPA, the CEQ Regulations, this Directive,
applicable Executive Orders, and other environmental planning
requirements.
2. Support budget requests to meet the requirements of this
Directive.
3. Consult, as needed, with Under Secretaries and Designated DHS
Officials to ensure that they complete appropriate environmental
planning for highly sensitive programs or actions that may require the
attention of either the Deputy Secretary or the Secretary.
4. Delegate requests for environmental planning related information
received at the Departmental level to the Chief, Administrative
Services for action.
C. The Chief of Administrative Services (CAS) has authority to
support the DEE in its efforts to promote good management practice by
ensuring that the Department fully incorporates environmental planning
requirements into all of the DHS missions and activities. To this end,
the CAS has delegated specific authority for environmental planning to
the Director of Office of Safety and Environment and to other DHS
officials as set forth in this Directive. In exercising this authority,
the CAS will perform the following:
1. Advise the DEE, as needed, on all environmental planning matters
in the Department.
2. Establish, as needed, appropriate Department-wide policy,
guidance, or training to enable the effective performance of
environmental planning throughout the DHS.
3. Recommend, as requested by the DEE, appropriate action on budget
requests for environmental planning resources from Under Secretaries
and Designated DHS Officials.
4. Consult with Under Secretaries and Designated DHS Officials to
ensure that their policies and procedures incorporate the requirements
of this Directive.
5. Direct, as needed, the performance of environmental planning
activities within the DHS directorates and elements with particular
emphasis on highly sensitive programs or actions that may require the
attention of the senior executive levels of the Department.
6. Advise the responsible Under Secretary or Designated DHS
Official and, if appropriate, the Secretary, of a proposed action
believed not to conform with the DHS policies or, after consulting with
the General Counsel, applicable environmental laws and regulations.
7. Coordinate requests for environmental planning related
information received at the Departmental level among appropriate DHS
elements or assign the request to the appropriate element for
resolution.
8. Approve new or revised supplementary procedures proposed by the
DHS elements for the implementation of this Directive pursuant to the
recommendations of the Director, Office of Safety and Environment.
9. Grant a delegation authority to an Under Secretary or a DHS
official to sign environmental documents pursuant to the
recommendations of the Director, Office of Safety and Environment.
Delegations that exist within the DHS at the time this Directive
becomes effective (i.e., Coast Guard, Federal Emergency Management
Agency, Customs and Border Protection, Immigration and Customs
Enforcement, and Citizenship and Immigration Services) will remain in
effect until they are updated or revoked.
10. Revoke, as appropriate, a delegation of authority to a DHS
Under Secretary or designated official.
D. The Director, Office of Safety and Environment (DOSE) is
designated by the Secretary as the DHS Environmental Planning
coordinator and has oversight responsibilities for the management and
direction of the Department-wide environmental planning program. The
DOSE will support the CAS with advice and assistance in carrying out
the responsibilities of that office as set forth in the above
paragraph. Such advice and assistance will, at a minimum, consist of
the following:
1. Advise the CAS, as needed, on all environmental planning matters
in the Department.
2. Develop, as needed, appropriate Department-wide policy,
guidance, or training to enable the consistent, timely, and effective
performance of environmental planning throughout the Department to
fulfill the Secretary's objectives and other requirements of this
Directive.
3. Evaluate for CAS, as requested, budget requests for
environmental planning resources.
4. Guide programs within the DHS elements to ensure that their
policies, procedures, and actions fulfill the Secretary's objectives
and the requirements of this Directive.
5. Direct, as needed, the performance of environmental planning
activities within the DHS elements, with particular emphasis on
headquarters level programs or actions and those that have the interest
of the CAS.
6. Coordinate and respond to requests for environmental planning
related information received at the Departmental level among
appropriate DHS elements or assign the request to the appropriate
directorate for resolution.
7. Review environmental documents, public notices, and other
related external communications that require a Departmental level
approval prior to release by the project proponent. This includes all
draft, final, and supplemental Environmental Impact Statements (EIS)
originating in the Department prior to filing with EPA, unless
otherwise delegated.
8. Evaluate new or revised supplementary procedures for DHS
elements for the implementation of this Directive or other
environmental planning requirements that are proposed by an Under
Secretary or Designated DHS Official under 5.F.8. DHS element
supplemental procedures will only be recommended for approval after
successfully completing DOSE level review, all necessary CEQ and public
review requirements, and incorporating all appropriate comments and
revisions.
9. Evaluate requests for delegation of authority from an Under
Secretary or a designated DHS Official to sign environmental documents.
Such delegation shall only be recommended for approval if the requestor
has both approved supplementary procedures and adequate staff resources
to fulfill the Secretary's objectives and the requirements of this
Directive. The adequacy of staff resources will involve an evaluation
of knowledge and experience in fulfilling environmental planning
requirements and preparing NEPA analyses and documentation sufficient
to meet the Secretary's objectives. Requests for delegation of
authority and supplementary procedures may be evaluated concurrently.
10. Recommend revocation of a delegation of authority from an Under
Secretary or a designated DHS Official for inappropriate procedures or
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inadequate staff resources to ensure full compliance with this
Directive or other environmental planning requirements.
11. Assist the DHS elements, as needed, in reviewing and assessing
the environmental impacts of proposed DHS actions covered by Executive
Order (EO) 12114.
12. Discuss with CEQ any DHS requests for alternative arrangements
or procedures to comply with NEPA and the CEQ regulations.
13. Review and comment on EISs and NEPA analyses originating from
agencies outside of the DHS relating to:
(a) Actions with national policy implications relating to the DHS
missions;
(b) Legislation, regulations, and program proposals having a
potential national impact on a DHS mission, and
(c) Actions with the potential to encroach upon the DHS missions.
14. Act as the principal point of contact for the DHS on
environmental issues of DHS-wide applicability brought before the CEQ,
the Office of Management and Budget, the Advisory Council on Historic
Preservation, U.S. Environmental Protection Agency headquarters, and
other federal agency headquarters.
15. Perform other functions as are specified in this Directive or
as are appropriate under NEPA, the CEQ Regulations, applicable
Executive Orders, other environmental requirements, or other
instructions or recommendations of CEQ or EPA concerning environmental
matters.
E. The General Counsel and/or Element Chief Counsel will:
1. Provide legal sufficiency review, when appropriate, for all
draft, final, and supplemental Environmental Assessments (EAs),
Findings Of No Significant Impact (FONSIs), Environmental Impact
Statements (EISs), and Records Of Decision (RODs).
2. Advise proponents, in consultation with the EPC, whether a
proposed element action is subject to the procedural requirements of
NEPA.
3. Advise proponents on compliance with NEPA, the CEQ Regulations,
applicable Executive Orders, and other environmental planning
requirements.
4. Assist in establishing or revising Departmental or elements'
NEPA procedures, including appropriate categorical exclusions.
F. All Under Secretaries and Designated DHS Officials will:
1. Fully integrate the requirements of this Directive into planning
for all applicable programs, activities, and operations. Ensure that
the planning, development, and execution of all their missions and
activities conform to the guidance in this Directive, the requirements
of NEPA, the CEQ Regulations, applicable Executive Orders, and other
environmental planning requirements.
2. Ensure that DHS proponents take the lead in environmental
planning efforts and maintain an understanding of the potential
environmental impacts of their programs and projects.
3. Plan, program, and budget for the requirements of this Directive
and Prepare and submit budget requests for adequate staff and resources
to meet the requirements of this Directive.
4. Support outreach processes for environmental planning.
5. Coordinate with other DHS elements on environmental issues that
affect them.
6. Prepare and circulate environmental documents for the
consideration of others when an action or policy area in question falls
under their jurisdiction as required by 40 CFR Part 1506.9.
7. Request the assistance of DOSE in preparing the environmental
analysis for any actions covered by E.O. 12114 unless otherwise
delegated.
8. Propose to the CAS, for review and approval, any new or
substantive revisions to existing supplementary procedures for the
implementation of this Directive and other environmental planning
requirements that the element deems necessary. All supplementary
procedures will be consistent with this Directive and will be developed
in accordance with the CEQ Regulations. Procedures revised solely to
effect administrative changes or format issues do not need CAS and CEQ
approval.
(a) For those Undersecretaries and Designated DHS Officials with
delegated authority to sign environmental documents, preparation of
handbooks and other technical guidance for element personnel regarding
NEPA implementation do not need CAS and CEQ approval.
(b) The DHS elements, listed in paragraph 5.C.8, that have already
developed -specific NEPA implementing procedures prior to becoming part
of the DHS may continue to use those procedures. All revisions to
supplementary procedures must be consistent with this Directive.
9. Send all environmental documents via their respective
organizational hierarchy, to the DOSE for review, prior to release to
the public, unless otherwise delegated.
10. For the DHS elements not listed in paragraph 5.C.8, Request
from the CAS limited or unlimited delegation of authority to sign
environmental documents. The request should include documentation
demonstrating that the element has adequate staff resources with
sufficient knowledge and experience in preparing NEPA analysis and
documentation sufficient to ensure full compliance.
11. Ensure that all external communications on environmental
planning requirements related to matters with potential for department
wide implications are coordinated with the DOSE and provide DOSE with a
courtesy copy of all related formal communications. Unless otherwise
delegated, ensure that all external communications on matters
concerning the DHS compliance with environmental planning requirements
that relate to controversial, high-visibility, classified, or sensitive
actions are coordinated with the DOSE.
12. Respond to requests for copies of environmental documents and
reports or other information in connection with the implementation of
NEPA.
13. Designate an appropriate Environmental Planning Coordinator
(EPC) and alternate in their respective element as a single point of
contact for coordination with DOSE on relevant environmental planning
matters.
G. Environmental Planning Coordinators (EPCs) will:
1. Act as a single point of contact for DOSE on all environmental
planning matters.
2. Inform key officials within their respective element of current
developments in environmental policy and programs.
3. Coordinate environmental planning strategies for matters within
their respective element's purview.
4. Act to further their respective element's compliance with the
requirements of NEPA, the CEQ Regulations, this Directive, applicable
Executive Orders, and other environmental requirements.
5. Identify discretionary activities within their respective
element and ensure that the requirements of this Directive are fully
integrated into those activities.
6. Work with their respective element proponents, as needed, to
fulfill the requirements of this Directive and other environmental
planning requirements. Consultation with proponents will involve the
following objectives, at a minimum:
(a) Ensure that appropriate environmental planning, including the
analyses and documentation required by NEPA, is completed before the
proponent makes a decision that has adverse environmental effects or
limits the choices of alternatives to satisfy an
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objective, fix a problem, or address a weakness.
(b) Plan, program, and budget to meet the requirements of this
Directive.
(c) Support the execution of the requirements of this Directive.
(d) Ensure that their respective DHS proponents are cognizant of
the potential environmental impacts of their programs and projects.
(e) Monitor the preparation and review of environmental planning
efforts to ensure compliance with all applicable scheduling, scoping,
consultation, circulation, and public involvement requirements.
(f) Advocate and develop, as appropriate, agreements with federal,
tribal, and state regulatory and/or resource agencies concerning NEPA
and other environmental planning requirements.
(g) Coordinate with other DHS elements on environmental issues that
affect them.
(h) Coordinate with DOSE in preparing the environmental analysis
for any actions covered by E.O. 12114.
7. Propose new categorical exclusions to DOSE.
8. Support outreach processes for environmental planning.
9. In consultation with the DOSE, define appropriate environmental
training requirements for personnel within their respective element(s).
H. The Project Proponent is the project or program manager. The
proponent has the immediate authority to decide a course of action or
has the authority to recommend a course of action, from among options,
to the next higher organization level (e.g. district to region) for
approval. He or she has the lead role in the environmental planning
process and is responsible for meeting the following objectives, in
consultation with the EPC:
1. Ensuring that appropriate environmental planning, including the
analyses and/or documentation required by NEPA is completed before a
decision is made that limits the choices of alternatives to satisfy an
objective, fix a problem, address a weakness, or develop a program.
2. Preparing requests and or securing funding for environmental
analysis and documentation in the budget process.
3. Ensuring the quality of the analysis and the documentation
produced in the environmental planning process.
4. Ensuring that the project has adequate resources to complete all
environmental analyses and documentation.
5. Performing the necessary outreach and communication with
appropriate Federal, tribal, state, local, and public interests.
6. Ensuring that the project budget has sufficient resources to
meet all mitigation commitments.
7. Seeking technical assistance from the DOSE, as needed, through
the appropriate lines of authority to ensure compliance with NEPA.
6. Policy
A. Stewardship of the air, land, water, and cultural resources is
compatible with and complementary to the planning and execution of the
DHS missions. Environmental planning processes provide a systematic
means of evaluating and fulfilling this aspect of DHS responsibility.
The DHS will integrate environmental planning and management into
homeland security operational planning, program development, and
management methodologies consistent with homeland security
requirements, fiscal policies, and other considerations of national
policy.
B. The DHS proponents will have the lead role in the environmental
planning process. The DHS proponents will be cognizant of the impacts
of their decisions on cultural resources, soils, forests, rangelands,
water and air quality, fish, and wildlife, and other natural resources
in the context of terrestrial and aquatic ecosystems. The DHS
proponents will employ all practical means consistent with other
considerations of national policy to minimize or avoid adverse
environmental consequences and attain the goals and objectives stated
in section 101 of NEPA.
C. The DHS proponents will provide for adequate staff, funding, and
time to perform NEPA analysis for DHS proposed actions, including those
for programs, plans, policies, projects, regulations, orders,
legislation or applications for permits, grants, licenses, etc. Should
mitigation be necessary to reduce the environmental effects of a DHS
proposed action, the proponent will be responsible for providing the
costs of mitigation or ensuring that the applicant provides for
mitigation.
D. The DHS proponents will integrate the NEPA process with other
DHS planning and project decision making activities and other
environmental review requirements sufficiently early to:
1. Ensure that mission planning, program development, and project
decision making reflect the Secretary's objectives and the policies in
this Directive, such as stewardship of resources effected by the DHS
missions.
2. Ensure that no action moves forward for funding or approval
without the systematic and interdisciplinary examination of likely
environmental consequences resulting from the proposed action and
reasonable alternatives according to the policy and procedures in this
Directive.
3. Balance environmental concerns with mission requirements,
technical requirements, and economic feasibility in decision making
processes to ensure long-term sustainability of the DHS operations.
4. Allow for appropriate communication, cooperation, and
collaboration between the DHS, other government entities, the public,
and non-governmental entities as an integral part of the NEPA process.
E. The DHS Proponents will emphasize the quality analysis of the
potential for environmental effects among alternative courses of action
to meet mission needs and the development of strategies to minimize
those effects. Documentation required under NEPA will be a summary of
the effort to evaluate the environmental effects and the development of
the minimization strategies. The depth of analysis and volume of
documentation will be proportionate to the nature and scope of the
action, and to the complexity and level of anticipated effects on
important environmental resources. Documentation is necessary to
present results of the analysis, but the objective of NEPA and the DHS
NEPA policy is quality analysis to support DHS decisions, not the
production of documents.
F. The DHS proponent, in consultation with the EPC, will determine
the level of NEPA analysis required for the proposed action. The DHS
proponents will complete their NEPA analysis and review for each DHS
proposed action before making a final decision on whether to proceed
with the proposed action. No action or portion of an action, covered by
a ROD or FONSI, will be taken that limits reasonable alternatives,
involves a conflict of resource use, or has an adverse environmental
effect until the final decision as justified in the ROD or FONSI has
been made public. No actions or portions of an action covered by a CE
that requires a Record of Environmental Consideration (REC) will be
taken until the REC is completed.
G. Laws other than NEPA that require the DHS to obtain or confirm
the approval of other federal, tribal, state, or local government
agencies before taking actions that are subject to NEPA, will be
integrated into the NEPA process at the earliest possible stage and to
the fullest extent possible. However, compliance with other
environmental laws does not
[[Page 33049]]
relieve the proponent from preparing environmental impact analyses and
processing necessary environmental documents. NEPA compliance is
required unless another law, applicable to a specific action or
activity, prohibits, conflicts with, or exempts compliance.
7. Procedures
A. Attachment A contains specific procedures for the application of
environmental planning requirements to the DHS consistent with the
Secretary's objectives and the policies in this Directive.
B. A DHS element with delegation under section 5.C.9 may also
develop its own supplemental procedures. DHS element-specific
procedures will be immediately effective upon approval of CAS and may
be disseminated within the DHS element, even before this Directive is
revised to include them. A DHS element with approved supplemental
procedures may use them in addition to the procedures in this
instruction.
C. The DHS elements with approved supplemental procedures under
5.C.8 may use the categorical exclusions listed in their approved
procedures and as indicated in this Directive. DHS elements may not use
the categorical exclusions listed in another DHS element's or any other
federal agency's specific procedures.
D. The CAS may revoke all or part of an element delegation and any
implementing procedures. No element will be given approval of
implementing procedures unless they also have received complete
delegation authority.
E. The DHS elements may prepare handbooks or other technical
guidance for their personnel on how to apply these procedures to their
programs.
F. Any questions or concerns regarding this Directive should be
addressed to the Director, Office of Safety and Environment.
Attachment A, Timely and Effective Environmental Planning in the
Department of Homeland Security
Table of Contents
Introduction
1.0 General Policies and Provisions
1.1 Up Front Planning
Figure 1: The NEPA Decision Making Process
1.2 Ongoing Administration
1.3 Follow Through Monitoring and Mitigation (1505.3)
1.4 Dispute Resolution
Figure 2: Dispute Resolution Flowchart
2.0 Intergovernmental Collaboration and Public Involvement
2.1 Purpose
2.2 Scoping (1501.7)
2.3 Coordination with Other Government Agencies
2.4 Lead Agencies (1501.5)
2.5 Cooperating Agencies (1501.6)
2.6 Public Involvement (1506.6)
2.7 Review of Other Agencies' Analysis and Documents
3.0 Categorical Exclusions (1507.3(b)(2)(ii))12
3.1 Purpose
3.2 Conditions and Extraordinary Circumstances (1508.4)
3.3 List of Categorically Excludable Actions
Table 1: Categorical Exclusions
4.0 Environmental Assessments
4.1 When to Use
4.2 Actions Normally Requiring an EA or a Programmatic EA
(1501.3, 1508.9)
4.3 Decision Document: Finding of No Significant Impact (FONSI)
(1508.13)
4.4 Supplemental EAs
5.0 Environmental Impact Statements (EISs)
5.1 When to Use
5.2 Actions Normally Requiring an EIS (1501.4), a Programmatic
EIS, or a Legislative EIS (1506.8)
5.3 Preparation and Filing (1506.9)
5.4 Combining Documents
5.5 Supplemental EISs (1502.9)
5.6 Proposals for Legislation (1506.8)
5.7 Decision Document: Record of Decision (ROD) (1505.2)
5.8 Review of Other Agencies' EISs
6.0 Special Circumstances
6.1 Emergencies (1506.11)
6.2 Classified or Protected Information (1507.3(c))
6.3 Procedures for Applicants (1501.2, 1506.5)
Appendix A: Definitions
Introduction
This Attachment provides guidance for timely and effective
environmental planning and includes supplementary instructions for
implementing the NEPA process in the DHS. The numbers in parentheses
signify the relevant citation in the CEQ Regulations. The DHS and its
elements will use NEPA as a strategic planning tool, not a
documentation exercise. The DHS is committed to using all of the tools
at its disposal to ensure timely and effective environmental planning
and implementation of the NEPA process.
1.0 General Policies and Provisions
Timely and effective environmental planning involves a systematic
process to identify and evaluate the potential for significant
environmental effects from a proposed DHS action. Proponents of
programs and activities within the DHS have a major role in this
process. This process and the guidance in this Directive are designed
to focus effort on those types of actions with the most potential for
significant environmental effects. The process involves three levels of
evaluation effort as shown in Figure 1: Categorical exclusion;
environmental assessment; and environmental impact statement. These
levels of effort reflect increasing potential for significant
environmental effects. It is expected that the majority of proposed DHS
actions will be able to be evaluated through categorical exclusions or
environmental assessments. Fewer DHS actions are likely to require an
EIS, but those with the greatest potential to impact natural resources
and the human environment will likely require an environmental impact
statement.
1.1 Up Front Planning Activities
A. Continually assess environmental planning in the DHS to improve
its effectiveness in supporting and enabling departmental missions.
B. Adapt environmental planning goals and requirements to
complement the DHS mission requirements.
C. Fully integrate NEPA and other environmental planning goals and
requirements into internal element program planning and decision making
processes and formal direction.
D. Ensure that environmental planning staffs are located within the
DHS organization where they can function as effective members of
interdisciplinary planning and project teams.
E. Enable effective environmental planning through appropriate
training, education, and interagency support relationships.
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1.2 Ongoing Administration
A. Ensure that appropriate environmental planning, including the
analyses and documentation required by NEPA, is completed before the
proponent makes a decision that limits the choice of alternatives to
satisfy an objective, fix a problem, or address a weakness.
B. Integrate all other environmental and planning reviews
concurrently, rather than sequentially, with the NEPA process.
C. Use the scoping and public involvement processes to limit the
analysis of issues to those that are important to the decision making
at hand.
D. Share information with and coordinate with other federal,
tribal, state, and local agencies early in the planning process and
integrate planning responsibilities with other agencies and
governments.
E. Take into account the views of the surrounding community and
other interested members of the public during its planning and decision
making process.
F. Offer cooperating agency status to other federal, tribal, state,
and local agencies that have special expertise or jurisdiction by law.
G. Base all environmental impact analyses, development of
monitoring requirements, and mitigation requirements on sound science.
H. Make maximum use of programmatic analyses and tiering of
environmental planning efforts to provide relevant environmental
information at the appropriate element decision levels, eliminate
repetitive analyses and discussion, ensure proper consideration of
cumulative effects, and focus on issues that are important to the
decision being made.
I. Review any relevant planning and decision making documents,
whether prepared by the DHS or another agency, to determine if the DHS
proposed action or application or any of their alternatives has been
considered in a prior NEPA analysis. If so, the DHS will consider
adopting the existing analyses, or any pertinent part thereof, in
accordance with 40 CFR 1506.3. Adopted environmental impact analyses of
others may be revised or supplemented as needed to serve the DHS
purposes.
J. Incorporate material by reference to reduce unnecessary
paperwork without impeding public review. The referenced material must
be reasonably available for public review within the time allowed for
comment.
K. Update the list of categorical exclusions to ensure that the DHS
environmental planning resources remain focused on those activities
with the most potential for significant effects.
1.3 Follow Through--Monitoring and Mitigation (1505.3)
A. Only those practical mitigation measures that can reasonably be
accomplished as part of a proposed alternative will be identified. Any
mitigation measures selected by the proponent will be clearly outlined
in the NEPA decision document and will be included in the budget of the
internal DHS project or made a part of the approved application from
external entities.
B. Use best management practices, such as environmental monitoring
systems, to implement a project and monitor the predicted environmental
effects. Using adaptive management techniques, adapt the implementation
of a project as new information becomes available.
C. Budget for mitigation. The proponent will ensure funding to
implement mitigation commitments or ensure that external applicants
provide for mitigation funding in their proposal prior to approval by
the DHS.
D. Implement mitigation. Ensure that all mitigation commitments in
the ROD or FONSI are implemented.
E. Monitor Results. Monitoring of the expected environmental
effects from DHS projects, including appropriate indicators of
effectiveness, is an integral part of any mitigation system. The
proponent is responsible for ensuring monitoring during mitigation,
where necessary, to ensure that the final decision justified in the ROD
or FONSI is implemented. For external applicants, the proponent is
responsible for ensuring that the applicant provides for monitoring.
The proponent is responsible for responding to inquiries from the
public or other agencies regarding the status of mitigation measures
adopted in the NEPA process.
1.4[emspace]Dispute Resolution
During the NEPA process, a DHS proponent and another federal agency
may not agree on significant issues or aspects of the process. When
these situations arise, the proponent will provide the other federal
agency with written notification, using certified mail or a comparable
method, detailing the nature of the disagreement. The proponent will
attempt to resolve the dispute within 30 working days of notification,
using Alternative Dispute Resolution or a similar mechanism. If dispute
negotiations fail, the proponent must notify the other federal agency
in writing, with a copy sent to the DHS element HQ, that an agreement
is unlikely and the project or operation is jeopardized. From the date
of that letter, the DHS element HQ will initiate 30 additional working
days of negotiations. If after 30 working days, the DHS element HQ has
not resolved the issue, it will be forwarded to the DEE. The DEE may
appoint a negotiating team and/or seek Council on Environmental Quality
(CEQ) support in informal dispute resolution. Figure 2 provides a
diagram of this process. The DHS elements have the option to use the
Institute for Environmental Conflict Resolution, a federally-chartered
mediation group based in Tucson, Arizona. In rare instances another
agency may independently refer a DHS EIS to CEQ for formal dispute
resolution. Upon receipt of advice that another federal agency intends
to refer a Departmental matter to CEQ, the DHS lead element will
immediately notify and consult with the DOSE.
2.0 Intergovernmental Collaboration and Public Involvement
2.1 Purpose
Open communication, consistent with other Federal requirements, is
the DHS policy. The purpose of this policy is to build trust between
the DHS and the communities it serves. Collaboration with other
federal, tribal, state, and local agencies, as well as non-governmental
organizations (NGOs) and the general public assists in identifying
important issues in the environmental planning process. In many cases,
these governments have expertise not available in the DHS or they may
have authorities and obligations to protect specific resources.
The appropriate involvement of relevant organizations and citizens
early in environmental planning is an effective means to focus
environmental planning efforts on issues that are of most interest to
the public and importance to the relevant DHS decision. Collaboration,
through meaningful and regular dialogue with those outside of the DHS
can also serve to avoid conflicts and facilitate resolution when
conflicts occur. Other organizations and citizens play an important
role in protection of resources and their communities. Awareness and
consideration of the needs and requirements of other organizations and
the general public, consistent with mission requirements, will enhance
the effectiveness of the DHS missions.
2.2 Scoping (1501.7)
A. Scoping is a process for taking into account the views of the
surrounding
[[Page 33052]]
community and other interested parties during planning and decision
making processes. It helps managers set the boundaries of the
environmental evaluation and is an effective means to limit the
analysis of issues to those that are of interest to the public and/or
important to the decision making at hand. Scoping is a process that
starts early and continues throughout the planning and early stages of
conducting a NEPA analysis.
B. When the DHS is the lead agency, it is responsible for the scope
of the NEPA analysis.
C. Scoping is required for EISs and strongly encouraged for EAs.
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2.3 Coordination with Other Government Agencies, States, and Tribes
The DHS policy is to seek out and coordinate with other federal
departments and agencies, tribal, state, and local governments, non-
governmental organizations, and the general public early in the
environmental planning process. In many cases, these organizations have
expertise not available in the DHS or they may have authorities and
obligations to protect specific resources.
A. Where an agency has special expertise or jurisdiction by law,
the DHS proponent should invite and encourage the federal, state, or
tribal governmental agency to be a cooperating agency.
B. When another agency has expertise to analyze the potential
environmental effect of a DHS proposal, the proponent will coordinate
early to ensure high quality and complete analysis.
C. The DHS will coordinate draft environmental impact analyses with
appropriate federal, state and tribal governments, as well as other
interested parties.
D. Among the various Federal agencies that can be involved in an
environmental planning effort, EPA has a special role. Section 309 of
the Clean Air Act provides the Administrator of EPA with authority to
review and comment in writing on the environmental impact of any matter
relating to the environment contained in any authorized federal
projects for construction and any major federal agency action for which
NEPA applies. At a minimum, the DHS proponents must ensure that their
EISs are appropriately coordinated with the EPA.
2.4 Lead Agencies (1501.5)
The lead agency in an environmental planning process has the
responsibility to define the scope and substance of the environmental
planning effort.
A. The DHS will be the lead agency when a proposed action is
clearly within the province of the DHS authority. Likewise, an Under
Secretary or designated DHS official will seek to form a joint-lead
relationship, when another agency has initiated an action within the
province of the DHS authority or has a significant responsibility
regarding the action.
B. Unless otherwise delegated, the Department will designate lead
elements within the DHS when more than one element could be involved
and will represent the Department in consultations with CEQ or other
federal entities in the resolution of lead agency determinations.
C. To eliminate duplication with state and local procedures, a non-
federal agency may be designated as a joint lead agency when an element
has a duty to comply with state or local requirements that are
comparable to the NEPA requirements.
2.5 Cooperating Agencies (1501.6)
Other federal, tribal, or state agencies may share a role in the
planning and execution of a DHS mission. Likewise, these agencies often
have specialized expertise or authorities in environmental planning
requirements that can be of benefit to the DHS mission planning.
A. The Department, when requested, will coordinate and assist
requests from non-Department agencies in determining cooperating agency
status.
B. Any federal, tribal, state, or local government entity with
special expertise or jurisdiction may be a cooperating agency by
agreement, and elements of the Department are urged to use this
process.
2.6 Public Involvement (1506.6)
The DHS believes that public involvement early in the NEPA analysis
process will help produce better decisions. The DHS also believes that
the public and NGOs play an important role in the protection of
resources. The DHS will encourage early and open public involvement in
proposals. Open communication with the American public, consistent with
other federal requirements, is the DHS policy.
A. Environmental Assessments. While the proponent is encouraged to
provide public involvement in EAs, the proponent has discretion
regarding the type and level of public involvement in EAs (See Section
4.0). The guidance under the following section for EISs may be useful
for EAs as well. Factors to be weighed include:
(1) Magnitude of the proposed project/action and impacts.
(2) Extent of anticipated public interest, based on experience with
similar proposals.
(3) Urgency of the proposal.
(4) National security classification.
(5) The presence of minority or economically-disadvantaged
populations that may be impacted.
B. Environmental Impact Statements. CEQ regulations mandate
specific public involvement steps in the EIS. Elements will:
(1) Provide for appropriate public involvement. Public involvement
must begin early in the proposal development stage, and during
preparation of an EIS. The direct involvement of other agencies and
state, local and tribal governments with jurisdiction or special
expertise is an integral part of impact analysis, and provides
information and conclusions for incorporation into EISs. Information
obtained from public involvement efforts can help to focus
environmental analysis effort on the impacts with the most potential
for significance. A public meeting may be appropriate. The need for a
formal public hearing should be determined in accordance with the
criteria set forth in 40 CFR Part 1506.6(c).
(2) Provide public notice of NEPA-related hearings, public
meetings, and the availability of environmental documents. The notice
should be provided by effective and efficient means most likely to
inform those persons and agencies that may be interested or affected,
including minority populations and low-income populations. Special
outreach efforts should be made to identify affected minority
populations and low-income populations. Public notices for
controversial, high-visibility, classified, or sensitive issues should
be cleared with the DEE prior to publication.
(3) Tailor the methods to reach the audience of concern. Make every
effort to make materials available and accessible to affected or
interested populations. Special outreach efforts may be needed to reach
affected tribes and minority populations and low-income populations.
Translation may be required to reach limited-English speakers.
Additionally, elements are encouraged to use electronic means to
provide access to and distribution of environmental planning
information and NEPA documents.
2.7 Review of Other Agencies' Analysis and Documents
A. The DHS elements should review and comment on other agencies'
environmental analysis and documents when requested or when the
proposed action may impact the DHS mission, operations, or facilities.
B. Comments should be confined to matters within the jurisdiction
or expertise of the Department. However, comments need not be limited
to environmental aspects, but may relate to security, immigration,
enforcement, and other matters of concern to the Department.
C. If a DHS element intends to issue formal adverse comments on a
non-DHS agency's analysis or document, the matter should be coordinated
with DOSE prior to issuing the comments.
[[Page 33055]]
3.0 Categorical Exclusions (1507.3(b)(2)(ii))
This Chapter establishes the DHS categorical exclusions (CEs) and
provides instructions for their implementation.
3.1 Purpose
A. CEQ regulations (1508.4) provide for federal agencies to
establish categories of actions that based on experience do not
individually or cumulatively have a significant impact on the human
environment and, therefore do not require an Environmental Assessment
(EA) or Environmental Impact Statement (EIS). These CEs allow the DHS
elements to avoid unnecessary analysis, process, and paperwork and
concentrate their resources on those proposed actions having real
potential for environmental concerns.
B. An element may decide in its procedures or otherwise, to prepare
environmental assessments for the reasons stated in CEQ regulations
(1508.9) even though it is not required to do so.
C. All requests to establish, substantively revise, or delete CEs
(along with justification) will be forwarded through the elements to
the DOSE for review and comment, unless otherwise delegated. New or
substantively modified CEs are subject to CEQ review and public comment
before they will be available for use. Securing approval from both the
DOSE and CEQ and promulgation remain the responsibility of the DHS
element.
3.2 Conditions and Extraordinary Circumstances (1508.4)
For an action to be categorically excluded, the DHS element must
satisfy each of the following three conditions. Proponents must involve
the EPC in evaluating these conditions. If the proposed action does not
meet these conditions or a statute or emergency provision does not
exempt it, an EA or an EIS must be prepared before the action may
proceed. Where it may not be clear whether a proposed action will meet
these conditions, the proponent must ensure that the administrative
record reflects consideration of these conditions. Certain categorical
exclusions require documentation of the consideration of these
conditions in the form of a Record of Consideration.
A. Clearly Fits the Category. The entire action clearly fits within
one or more of the categories of excludable actions listed in Section
4.3 and/or in individual element's categorical exclusions. An element
should not use a CE for an action with significant impacts whether they
are beneficial or adverse.
B. Is Not A Small Piece of a Larger Action. The scope of the action
has not been segmented. Segmentation can occur when an action or
connected actions are broken into smaller parts in order to avoid the
appearance of significance of the total action and thus reduce the
level of NEPA review required. For purposes of NEPA, actions must be
considered in the same review if the actions are connected and
interdependent, such as: where one action triggers or forces another;
where one action depends on another; or where actions have the
potential for effects that would be cumulative.
C. No Extraordinary Circumstances Exist. No extraordinary
circumstances with potentially significant impacts relating to the
proposed action exist. Extraordinary circumstances are unique
conditions that are associated with the potential for significant
impacts. Specific actions that might otherwise be categorically
excluded, but are associated with one or more extraordinary
circumstances, should be carefully evaluated to determine whether a CE
is appropriate. A determination of whether an action that is normally
excluded requires additional analysis must focus on the action's
potential effects and the environmental significance in context
(whether local, state, regional, tribal, national, or international)
and in intensity. This determination is made by considering whether the
action is likely to involve one or more of the following circumstances:
(1) A potentially significant effect on public health or safety.
(2) A potentially significant effect on species or habitats
protected by the Endangered Species Act, Marine Mammal Protection Act,
or Magnuson-Stevens Fishery Conservation and Management Act.
(3) A potentially significant effect on a district, site, highway,
structure, or object that is listed in or eligible for listing in the
National Register of Historic Places, affects a historic or cultural
resource or traditional and sacred sites, or the loss or destruction of
a significant scientific, cultural, or historical resource.
(4) A potentially significant effect on a unique characteristic of
the geographic area, such as park land, prime farmland, wetland,
floodplain, coastal zone, or a wild and scenic river, sole or principal
drinking water aquifers, or an ecologically critical area.
(5) A potential or threatened violation of a federal, state, or
local law or administrative determination imposed for the protection of
the environment. Some examples of administrative determinations to
consider are a local noise control ordinance; the requirement to
conform to an applicable State Implementation Plan (SIP); and federal,
state, or local requirements for the control of hazardous or toxic
substances.
(6) An effect on the quality of the human environment that is
likely to be highly controversial in terms of scientific validity,
likely to be highly uncertain, likely to involve unique or unknown
environmental risks.
(7) Employment of new technology or unproven technology that is
likely to involve unique or unknown environmental risks, where the
effect on the human environment is likely to be highly uncertain, or
where the effect on the human environment is likely to be highly
controversial in terms of scientific validity.
(8) A precedent is set that forecloses future options that have
significant effects.
(9) Significantly greater scope or size than normally experienced
for a particular category of action.
(10) Potential for significant degradation of already existing poor
environmental conditions. Also, initiation of a potentially significant
environmental degrading influence, activity, or effect in areas not
already significantly modified from their natural condition.
3.3 List of Categorically Excludable Actions
A. Table 1 is a list of Categorical Exclusions, those activities
which normally require no further NEPA analysis. Proponents, in
consultation with their EPC, should be alert for the presence of those
extraordinary circumstances listed in section 3.2 of this attachment.
These categorical exclusions were developed on the basis of an
administrative record from the elements that comprise the new
department, from professional staff and expert opinion, and/or past
NEPA analyses. The DHS CEs are divided into the following functional
groupings of activities conducted by the DHS elements in fulfilling the
Department mission:
(1) Administrative and Regulatory Activities
(2) Operational Activities
(3) Real Estate Activities
(4) Repair and Maintenance Activities
(5) Construction, Installation, and Demolition Activities
(6) Hazardous/Radioactive Materials Management and Operations
[[Page 33056]]
(7) Training and Exercises
(8) Categorical Exclusions for specific DHS elements
B. Activities that involve greater potential for environmental
effect require a Record of Environmental Consideration (REC) to justify
the use of the CE. These activities are marked with an asterisk. A REC
is a means of documenting whether the conditions listed in 3.2 A, B,
and C are met. The DOSE will sign all RECs unless signature authority
has been delegated to the element. The REC will normally not exceed two
pages.
Table 1.--Categorical Exclusions
------------------------------------------------------------------------
CE
------------------------------------------------------------------------
ADMINISTRATIVE AND REGULATORY ACTIVITIES\1\
------------------------------------------------------------------------
A1................................ Personnel, fiscal, management, and
administrative activities, such as
recruiting, processing, paying,
recordkeeping, resource management,
budgeting, personnel actions, and
travel.
A2................................ Reductions, realignments, or
relocation of personnel that do not
result in exceeding the
infrastructure capacity or change
the use of space. An example of a
substantial change in use of the
supporting infrastructure would be
an increase in vehicular traffic
beyond the capacity of the
supporting road network to
accommodate such an increase.
A3................................ Promulgation of rules, issuance of
rulings or interpretations, and the
development and publication of
policies, orders, directives,
notices, procedures, manuals,
advisory circulars, and other
guidance documents of the following
nature:
(a) Those of a strictly
administrative or procedural
nature;
(b) Those that implement, without
substantive change, statutory or
regulatory requirements;
(c) Those that implement, without
substantive change, procedures,
manuals, and other guidance
documents;
(d) Those that interpret or amend an
existing regulation without
changing its environmental effect;
(e) Technical guidance on safety and
security matters; or
(f) Guidance for the preparation of
security plans.
A4................................ Information gathering, data analysis
and processing, information
dissemination, review,
interpretation, and development of
documents, that involves no
commitment of resources or
recommendations for future
commitments of resources other than
the associated manpower and
funding. Examples include but are
not limited to:
(a) Document mailings, publication
and distribution, and training and
information programs, historical
and cultural demonstrations, and
public affairs actions.
(b) Studies, reports, proposals,
analyses, literature reviews;
computer modeling; and other non-
intrusive intelligence gathering
activities.
A5................................ Contingency planning and
administrative activities in
anticipation of emergency and
disaster response and recovery.
Examples include response plans,
protocols for use of suppressants,
etc.
A6................................ Awarding of contracts for technical
support services, ongoing
management and operation of
government facilities, and
professional services that do not
involve unresolved conflicts
concerning alternative uses of
available resources.
A7................................ Procurement of non-hazardous goods
and services, and storage,
recycling, and disposal of non-
hazardous materials and wastes,
that complies with applicable
requirements and that is in support
of routine administrative,
operational, maintenance
activities. Storage activities must
occur on previously disturbed land
or in existing facilities. Examples
include but are not limited to:
(a) Office supplies.
(b) Equipment.
(c) Mobile assets.
(d) Utility services.
(e) Chemicals and low level radio
nuclides for analytical testing and
research.
(f) Deployable emergency response
supplies and equipment.
(g) Waste disposal and contracts for
waste disposal in permitted
landfills or other authorized
facilities..
A8................................ The commitment of resources,
personnel, and funding to conduct
audits, surveys, and data
collection of a minimally intrusive
nature. Examples include, but are
not limited to:
(a) Activities designed to support
the improvement or upgrade
management of natural resources,
such as surveys for threatened and
endangered species, wildlife and
wildlife habitat, historic
properties, and archeological
sites; wetland delineations; timber
stand examination; minimal water,
air, waste, material and soil
sampling; audits, photography, and
interpretation.
(b) Minimally-intrusive geological,
geophysical, and geo- technical
activities, including mapping and
engineering surveys.
(c) Site characterization studies
and environmental monitoring,
including siting, construction,
operation, and dismantling or
closing of characterization and
monitoring devices, Facility
Audits, Environmental Site
Assessments, and Environmental
Baseline Surveys.
(d) Vulnerability, risk, and
structural integrity assessments of
infrastructure.
-----------------------------------
OPERATIONAL ACTIVITIES
------------------------------------------------------------------------
B1................................ Research, development, testing, and
evaluation activities, or
laboratory operations conducted
within existing enclosed facilities
consistent with previously
established safety levels and in
compliance with federal, tribal,
state, and local requirements to
protect the environment when it
will result in no, or de minimus
change in the use of the facility.
If the operation will substantially
increase the extent of potential
environmental impacts or is
controversial, an EA (and possibly
an EIS) is required.
B2................................ Transportation of personnel,
detainees, equipment, and
evidentiary materials in wheeled
vehicles over existing roads or
established jeep trails, including
access to permanent and temporary
observation posts.
B3................................ Proposed activities and operations
to be conducted in an existing
structure that would be compatible
with and similar in scope to its
ongoing functional uses and would
be consistent with previously
established safety levels and in
compliance with federal, tribal,
state, and local requirements to
protect the environment.
B4................................ Provision of on-site technical
assistance to non-DHS organizations
to prepare plans, studies, or
evaluations or to conduct training
at sites currently used for such
activities, Examples include, but
are not limited to:
(a) General technical assistance to
assist with development and
enhancement of Weapons of Mass
Destruction (WMD) response plans,
exercise scenario development and
evaluation, facilitation of working
groups, etc.
[[Page 33057]]
(b) State strategy technical
assistance to assist states in
completing needs and threat
assessments and in developing their
domestic preparedness strategy.
(c) Training on use, maintenance,
calibration, and/or refurbishing of
specialized equipment.
B5................................ Support for community participation
projects. Examples include, but are
not limited to:
(a) Earth Day activities.
(b) Adopting schools.
(c) Cleanup of rivers and parkways.
(d) Repair and alteration of
housing.
B6................................ Approval of recreational or public
activities or events at a location
typically used for that type and
scope (size and intensity) of that
activity. Examples include, but are
not limited to:
(a) Picnics.
(b) Encampments.
(c) Interpretive programs for
historic and cultural resources,
such as programs in conjunction
with State and Tribal Historic
Preservation Officers, or with
local historic preservation or re-
enactment groups.
B7................................ Realignment or initial home porting
of mobile assets, including
vehicles, vessels and aircraft, to
existing operational facilities
that have the capacity to
accommodate such assets or where
supporting infrastructure changes
will be minor in nature to perform
as new homeports or for repair and
overhaul.
B8*............................... Acquisition, installation,
maintenance, operation, evaluation,
removal, or disposal of security
equipment to screen for or detect
dangerous or illegal individuals or
materials at existing facilities.
Examples include, but are not
limited to:
(a) Low-level x-ray devices.
(b) Cameras and biometric devices.
(c) Passive inspection devices.
(d) Detection or security systems
for explosive, biological, or
chemical substances.
(e) Access controls, screening
devices, and traffic management
systems.
B9*............................... Acquisition, installation,
maintenance, operation, evaluation,
removal, or disposal of target
hardening security equipment,
devices, or controls to enhance the
physical security of existing
critical assets to include, but not
limited to:
(a) Motion detection systems.
(b) Temporary use of barriers,
fences, and jersey walls on or
adjacent to existing facilities.
(c) Impact resistant doors and
gates.
(d) X-ray units.
(e) Remote video surveillance
systems.
(f) Diver/swimmer detection systems
except sonar.
(g) Blast/shock impact-resistant
systems.
(h) Column and surface wraps.
(i) Breakage/shatter-resistant
glass.
B10............................... Existing aircraft operations
conducted in accordance with normal
flight patterns and elevations.
This categorical exclusion
encompasses the actions of many
component elements of the DHS
during training and emergency
response and recovery efforts, but
would primarily be used by the
elements of Coast Guard and Border
and Transportation Security in
their daily activities.
B11............................... Identifications, inspections,
surveys, or sampling, testing,
seizures, quarantines, removals,
sanitization, and monitoring of
imported products and that cause
little or no physical alteration of
the environment. This categorical
exclusion would primarily encompass
a variety of daily activities
performed at the borders and ports
of entry by various elements of the
Border and Transportation Security
Directorate.
B12............................... Routine monitoring and surveillance
activities that support law
enforcement or homeland security
and defense operations, such as
patrols, investigations, and
intelligence gathering, but not
including any construction
activities except those set forth
in subsection F of these
categorical exclusions. This
categorical exclusion would
primarily encompass a variety of
daily activities performed by the
elements of Coast Guard, Border and
Transportation Security, and the
Secret Service.
B13[hairsp]*...................... Harvest of live trees on DHS
facilities not to exceed 70 acres,
requiring no more than \1/2\ mile
of temporary road construction. Do
not use this category for even-aged
regeneration harvest or vegetation
type conversion. The proposed
action may include incidental
removal of trees for landings, skid
trails, and road clearing. Examples
include but are not limited to:
(a) Removal of individual trees for
saw logs, specialty products, or
fuel wood.
(b) Commercial thinning of
overstocked stands to achieve the
desired stocking level to increase
health and vigor.
This categorical exclusion would
encompass property management
activities at larger properties
within the Coast Guard, Science and
Technology Directorate, and the
Federal Law Enforcement Training
Centers.
B14[hairsp]*...................... Salvage of dead and/or dying trees
on DHS facilities not to exceed 250
acres, requiring no more than \1/2\
mile of temporary road
construction. The proposed action
may include incidental removal of
live or dead trees for landings,
skid trails, and road clearing.
Examples include but are not
limited to:
(a) Harvest of a portion of a stand
damaged by a wind or ice event and
construction of a short temporary
road to access the damaged trees.
(b) Harvest of fire damaged trees.
(c) Harvest of insect or disease
damaged trees.
This categorical exclusion would
encompass property management
activities at larger properties
within the Coast Guard, Science and
Technology Directorate, and the
Federal Law Enforcement Training
Centers.
-----------------------------------
REAL ESTATE ACTIVITIES
------------------------------------------------------------------------
C1................................ Acquisition of an interest in real
property that is not within or
adjacent to environmentally
sensitive areas, including
interests less than a fee simple,
by purchase, lease, assignment,
easement, condemnation, or
donation, which does not result in
a change in the functional use of
the property.
[[Page 33058]]
C2................................ Lease extensions, renewals, or
succeeding leases where there is no
change in the facility's use and
all environmental operating permits
have been acquired and are current.
C3................................ Reassignment of real property,
including related personal property
within the DHS (e.g., from one DHS
element or activity to another)
which does not result in a change
in the functional use of the
property.
C4................................ Transfer of administrative control
over real property, including
related personal property, between
a non-DHS federal agency and the
DHS which does not result in a
change in the functional use of the
property.
C5................................ Determination that real property is
excess to the needs of the DHS and,
in the case of acquired real
property, the subsequent reporting
of such determination to the
General Services Administration or,
in the case of lands withdrawn or
otherwise reserved from the public
domain, the subsequent filing of a
notice of intent to relinquish with
the Bureau of Land Management,
Department of Interior.
-----------------------------------
REPAIR AND MAINTENANCE ACTIVITIES
------------------------------------------------------------------------
D1................................ Minor renovations and additions to
buildings, roads, airfields,
grounds, equipment, and other
facilities that do not result in a
change in the functional use of the
real property (e.g. realigning
interior spaces of an existing
building, extending an existing
roadway in a developed area a short
distance, adding a small storage
shed to an existing building, or
retrofitting for energy
conservation. This could also
include installing a small antenna
on an already existing antenna
tower that does not cause the total
height to exceed 200 feet and where
the FCC would not require an
environmental assessment or
environmental impact statement of
the installation).
D2................................ Routine upgrade, repair,
maintenance, or replacement of
equipment and vehicles, such as
aircraft, vessels, or airfield
equipment which does not result in
a change in the functional use of
the property.
D3................................ Repair and maintenance of buildings,
roads, airfields, grounds,
equipment, and other facilities
which do not result in a change in
functional use or an impact on a
historically significant element or
setting (e.g. replacing a roof,
painting a building, resurfacing a
road or runway, pest control
activities, restoration of trails
and firebreaks, culvert
maintenance, grounds maintenance,
existing security systems,
waterfront facilities that do not
require individual regulatory
permits, and other facilities).
D4[hairsp]*....................... Reconstruction and/or repair by
replacement of existing utilities
or surveillance systems in an
existing right-of-way or easement,
upon agreement with the owner of
the relevant property interest.
D5[hairsp]*....................... Maintenance dredging and repair
activities within waterways,
floodplains, and wetlands where no
new depths are required, applicable
permits are secured, and associated
debris disposal will be at an
approved disposal site. This
categorical exclusion encompasses
activities required for the
maintenance of waterfront
facilities managed primarily within
the Coast Guard and Customs and
Border Protection.
D6................................ Maintenance of aquatic and riparian
habitat in streams and ponds, using
native materials or best natural
resource management practices.
Examples include, but are not
limited to:
(a) Installing or repairing gabions
with stone from a nearby source.
(b) Adding brush for fish habitat.
(c) Stabilizing stream banks through
bioengineering techniques.
(d) Removing and controlling exotic
vegetation, not including the use
of herbicides or non-native
biological controls.
This categorical exclusion would
encompass property management
activities at larger properties
within the Coast Guard, Science and
Technology Directorate, and the
Federal Law Enforcement Training
Centers.
-----------------------------------
CONSTRUCTION, INSTALLATION, AND DEMOLITION ACTIVITIES
------------------------------------------------------------------------
E1................................ Construction, operation,
maintenance, and removal of utility
and communication systems, mobile
antennas, data processing cable,
intrusion detection systems, and
similar electronic equipment that
use existing rights-of-way,
easements, utility distribution
systems, and/or facilities and for
equipment and towers not higher
than 200 feet where the FCC would
not require an environmental
assessment or environmental impact
statement for the acquisition,
installation, operation or
maintenance.
E2*............................... New construction upon or improvement
of land where all of the following
conditions are met:
(a) The structure and proposed use
are compatible with applicable
local planning and zoning
standards.
(b) The site is in a developed area
and/or a previously disturbed site.
(c) The proposed use will not
substantially increase the number
of motor vehicles at the facility
or in the area.
(d) The site and scale of
construction or improvement are
consistent with those of existing,
adjacent, or nearby buildings.
(e) The construction or improvement
will not result in uses that exceed
existing support infrastructure
capacities (roads, sewer, water,
parking, etc.).
E3*............................... Acquisition, installation,
operation, and maintenance of
equipment, devices, and/or controls
necessary to mitigate effects of
the DHS missions on health and the
environment, including the
execution of appropriate real
estate agreements. Examples include
but are not limited to:
(a) Pollution prevention and
pollution control equipment
required to meet federal, tribal,
state, or local requirements.
(b) Noise abatement measures,
including construction of noise
barriers, installation of noise
control materials, or planting
native trees and/or native
vegetation for use as a noise
abatement measure.
(c) Devices to protect human or
animal life, such as raptor
electrocution prevention devices,
fencing to restrict wildlife
movement on to airfields, fencing
and grating to prevent accidental
entry to hazardous or restricted
areas, and rescue beacons to
protect human life.
E4*............................... Removal or demolition, along with
subsequent disposal of debris to
permitted or authorized off-site
locations, of non-historic
buildings, structures, other
improvements, and/or equipment in
compliance with applicable
environmental and safety
requirements.
E5................................ Natural resource management
activities to enhance native flora
and fauna, including site
preparation and landscaping. This
categorical exclusion would
encompass property management
activities primarily at properties
within the Coast Guard, Science and
Technology Directorate, and the
Federal Law Enforcement Training
Centers.
[[Page 33059]]
E6................................ Construction or reconstruction of
roads on previously disturbed areas
on DHS facilities, where runoff,
erosion, and sedimentation issues
are mitigated through
implementation of Best Management
Practices. This categorical
exclusion would encompass property
management activities primarily at
properties within the Coast Guard,
Science and Technology Directorate,
and the Federal Law Enforcement
Training Centers.
E7................................ Construction of exercise and
training trails for non-motorized
use in areas that are not
environmentally sensitive and that
are located on DHS facilities,
where run-off, erosion, and
sedimentation are mitigated through
implementation of Best Management
Practices. This categorical
exclusion would encompass property
management activities primarily at
properties within the Coast Guard,
Science and Technology Directorate,
and the Federal Law Enforcement
Training Centers.
E8*............................... Construction of aquatic and riparian
habitat in streams and ponds, using
native materials or best natural
resource management practices.
Examples include, but are not
limited to:
(a) Installing or repairing gabions
with stone from a nearby source.
(b) Adding brush for fish habitat.
(c) Stabilizing stream banks through
bioengineering techniques.
(d) Removing and controlling exotic
vegetation, not including the use
of herbicides or non-native
biological controls. This
categorical exclusion would
encompass property management
activities primarily at properties
within the Coast Guard, Science and
Technology Directorate, and the
Federal Law Enforcement Training
Centers.
E9*............................... Except in environmentally sensitive
areas, construction, operation,
modification, or closure of:
(a) Wells for drinking water,
sampling, and watering landscaping
at DHS facilities.
(b) Septic systems in accordance
with State and local environmental
and health requirements.
(c) Field instruments, such as
stream-gauging stations, flow-
measuring devices, telemetry
systems, geo-technical monitoring
tools, geophysical exploration
tools, water-level recording
devices, well logging systems,
water sampling systems, ambient air
monitoring equipment.
This categorical exclusion would
encompass property management
activities primarily at properties
within the Coast Guard, Science and
Technology Directorate, and the
Border and Transportation Security
Directorate.
-----------------------------------
HAZARDOUS/RADIOACTIVE MATERIALS MANAGEMENT AND OPERATIONS
------------------------------------------------------------------------
F1.............. Routine procurement, handling,
recycling, and off-site disposal of
hazardous material/waste that
complies with applicable
requirements. Examples include but
are not limited to:
(a) Process-related chemicals and
metals used in repair, maintenance,
alteration, and manufacturing.
(b) Routine transportation,
distribution, use, storage,
treatment, and disposal of solid
waste, medical waste, radiological
and special hazards conducted in
accordance with all federal, state,
local and tribal laws and
regulations.
(c) Hazardous waste minimization and
recycling activities.
F2................................ Use of instruments that contain
hazardous, radioactive, and
radiological materials. Examples
include, but are not limited to:
(a) Gauging devices, tracers,
analytical instruments, and other
devices containing sealed
radiological and radioactive
sources.
(b) Industrial radiography.
(c) Devices used in medical and
veterinary practices.
(d) Installation, maintenance, non-
destructive tests, and calibration.
F3................................ Use, transportation, and placement
of Nuclear Regulatory Commission
(NRC) approved, sealed, small
source radiation devices for
scanning vehicles and packages
where radiation exposure to
employees or the public does not
exceed 0.1 rem per year and where
systems are maintained within the
NRC license parameters at existing
facilities. This categorical
exclusion would primarily encompass
a variety of daily activities
performed by the elements of Coast
Guard, Border and Transportation
Security, and the Secret Service.
-----------------------------------
TRAINING AND EXERCISES
------------------------------------------------------------------------
G1................................ Training of homeland security
personnel, including international,
tribal, state, and local agency
representatives using existing
facilities where the training
occurs in accordance with
applicable permits and other
requirements for the protection of
the environment. This exclusion
does not apply to training that
involves the use of live chemical,
biological, or radiological agents
except when conducted at a location
designed and constructed for that
training. Examples include but are
not limited to:
(a) Administrative or classroom
training.
(b) Tactical training, including but
not limited to training in
explosives and incendiary devices,
arson investigation and
firefighting, and emergency
preparedness and response.
(c) Vehicle and small boat operation
training.
(d) Small arms and less-than-lethal
weapons training.
(e) Security specialties and
terrorist response training.
(f) Crowd control training,
including gas range training.
(g) Enforcement response, self-
defense, and interdiction
techniques training.
(h) Techniques for use in
fingerprinting and drug analysis.
G2................................ Projects, grants, cooperative
agreements, contracts, or
activities to design, develop, and
conduct national, state, local, or
international exercises to test the
readiness of the nation to prevent
or respond to a terrorist attack of
natural or manmade disasters and
where in accordance with existing
facility or land use designations.
This exclusion does not apply to
exercises that involve the use of
chemical, biological, radiological,
nuclear, or explosive agents/
devices (other than small devices
such as practice grenades/flash
bang devices used to simulate an
attack during exercise play).
-----------------------------------
[[Page 33060]]
UNIQUE CATEGORICAL EXCLUSIONS FOR THE TRANSPORTATION AND SECURITY
ADMINISTRATION
------------------------------------------------------------------------
H1................................ Approval or disapproval of security
plans required under legislative or
regulatory mandates unless such
plans would have a significant
effect on the environment.
H2................................ Issuance of grants for the conduct
of security-related research and
development or the implementation
of security plans or other measures
at existing facilities.
H3................................ Issuance of planning documents and
advisory circulars on planning for
security measures which are not
intended for direct implementation
or are issued as administrative and
technical guidance.
H4................................ Issuance or revocation of
certificates or other approvals,
including but not limited to:
(a) Airmen certificates.
(b) Security procedures at general
aviation airports.
(c) Airport security plans.
-----------------------------------
UNIQUE CATEGORICAL EXCLUSION FOR THE U.S. VISIT PROGRAM
------------------------------------------------------------------------
I1*............................... A portable or relocatable facility
or structure used to collect
traveler data at or adjacent to an
existing port of entry that does
not significantly disturb land,
air, or water resources and does
not individually or cumulatively
have a significant environmental
effect. The building footprint of
the facility must be less than 5000
square feet and the facility or
structure must not foreclose future
land use alternatives.
-----------------------------------
UNIQUE CATEGORICAL EXCLUSION FOR THE FEDERAL LAW ENFORCEMENT TRAINING
CENTER
------------------------------------------------------------------------
J7*............................... Prescribed burning, wildlife habitat
improvement thinning, and brush
removal for southern yellow pine at
the FLETC facility in Glynco,
Georgia. No more than 200 acres
will be treated in any single year.
These activities may include up to
0.5 mile of low- standard,
temporary road construction to
support these operations.
-----------------------------------
UNIQUE CATEGORICAL EXCLUSIONS FOR THE CUSTOMS AND BORDER PATROL
------------------------------------------------------------------------
K1................................ Road dragging of existing roads and
trails to maintain a clearly
delineated right-of-way and to
provide evidence of foot traffic
and that will not expand the width,
length, or footprint of the road or
trail.
K2................................ Repair and maintenance of existing
border fences that do not involve
expansion in width or length of the
project, and will not encroach on
adjacent habitat.
------------------------------------------------------------------------
\1\ These categorical exclusions have the additional requirement to be
conducted in conformance with the Greening the Government Executive
Orders (e.g., EO 13101, 13123, 13148, 13149, and 13150).
4.0 Environmental Assessments
This Chapter provides supplementary instructions for implementing
environmental assessments (EA).
An EA is a brief analysis that is prepared pursuant to NEPA to
assist the proponent in decision making. An EA concludes in either a
finding of no significant impact or a Notice of Intent to prepare an
environmental impact statement. The EA should include alternatives to
the proposed action. EAs and the associated environmental documents
should be reviewed and approved by the CAS, unless signature authority
has been specifically delegated to the DHS element.
Based upon the analysis and selection of mitigation measures that
reduce environmental impacts until they are no longer significant, an
EA may result in a FONSI. If a proponent uses mitigation measures in
such a manner, the FONSI must identify these mitigating measures, and
they become legally binding and must be accomplished as the project is
implemented. If any of these identified mitigation measures do not
occur, so that significant adverse environmental effects could
reasonably be expected to result, the proponent must stop the action
and prepare an EIS.
It is the DHS policy to involve the public to the extent
practicable. The proponent should consider the practicality of making
the EA available for public review and comment before completing the
FONSI. The proponent, working in consultation with the EPC, will
determine the practicality based on consideration of the factors in
section 2.6, Public Involvement. When practical, an EA will be made
available for public review and comment for a period of 30 days before
completing the FONSI.
4.1 When to Use
A. For any action proposed by an element that does not qualify for
a categorical exclusion or does not clearly require an EIS, the element
will prepare and circulate an EA.
B. If changes in the scope of a proposed element action could
significantly affect the quality of the human environment, an EA shall
be prepared as soon as possible to determine the significance of the
effects unless it is otherwise clear that an EIS is needed.
C. An EA should be prepared for proposed actions that would
normally be categorically excluded except that the proposed action
involves extraordinary circumstances that may result in the proposed
action having potential for a significant impact on the human
environment.
D. An EA need not be prepared if an element has decided to prepare
an EIS on a proposed action.
4.2 Actions Normally Requiring an EA or a Programmatic EA (1501.3,
1508.9)
A. Projects for which environmental assessments will be the minimum
level of analysis include, but are not limited to:
(1) Proposed construction, land use, activity, or operation that
has the potential to significantly affect environmentally sensitive
areas.
(2) Dredging projects that do not meet the criteria of the U.S.
Army Corps of Engineers Nationwide Permit Program.
(3) New or revised regulations, directives, or policy guidance that
is not categorically excluded.
(4) Proposal of new, low-altitude aircraft routes wherein over
flights have the potential to significantly affect persons, endangered
species, or property.
(5) Permanent closure or limitation of access to any areas that
were previously
[[Page 33061]]
open to public use (e.g., roads and recreational areas) where there is
a potential for significant environmental impacts.
(6) New law enforcement field operations for which the impacts are
unknown, or for which the potential for significant environmental
degradation or controversy is likely.
B. A Programmatic EA may be prepared on a broad federal action,
such as a program or plan, for which only very general environmental
information is known, yet for which the anticipated environmental
impacts are minor. A site or activity-specific EA or supplemental EA,
may then be tiered to the PEA and the environmental analysis discussed
in the broader statement be incorporated by reference in the site-
specific EA. In some cases the programmatic assessment may be specific
enough or contain sufficient information to require no or very little
tiered analysis.
4.3 Decision Document: Finding of No Significant Impact (FONSI)
(1508.13)
If the EA supports the conclusion that the action has no
significant impact on the environment, the element will prepare a
separate Finding of No Significant Impact (FONSI) that will accompany
the EA.
A. The FONSI must either be attached to the EA or incorporate the
EA by reference and consist of the following:
(1) The name of the proposed action.
(2) The facts and conclusions that led to the FONSI.
(3) Any mitigation commitments (including funding and/or
monitoring) essential to render the impacts of the proposed action not
significant, beyond those mitigations that are an integral part of the
proposed action.
(4) A statement that the action will not have a significant impact
on the human environment.
(5) The date of issuance and signature of the element official
approving the document.
B. The proponent, in consultation with the EPC, will determine
whether to make the FONSI available to the public for a reasonable
period of time before making a decision or taking action. A reasonable
period of time will be determined on the basis of an evaluation of the
criteria in CEQ regulations at 40 CFR 1501.4(e) and an evaluation of
the comments received during the EA review and comment period.
4.4 Supplemental EAs
A. The Proponent will prepare a supplemental EA if there are
substantial changes to the proposal that are relevant to environmental
concerns or significant new circumstances or information relevant to
environmental concerns.
B. The Proponent may supplement a draft or final EA at any time to
further the analysis. The proponent shall introduce any such supplement
into its formal administrative record if such a record exists.
C. The Proponent will prepare, circulate, and file a supplement to
an EA in the same manner as any other EA. A FONSI is required for the
supplement prior to any decision making.
D. While the Proponent is encouraged to provide public involvement
in Supplemental EAs, the proponent has discretion regarding the type
and level of public involvement in Supplemental EAs. Factors to be
weighed include those listed in Section 2.6 A.
5.0 Environmental Impact Statements (EISs)
This Chapter provides supplementary instructions for implementing
environmental impact statements (EIS). An EIS analyzes the
environmental impacts of a proposed action and all reasonable
alternatives. It displays them in a report for review by the decision
maker. The EIS provides an opportunity to work collaboratively with
other federal, state, and tribal authorities. The EIS provides an
opportunity for the public to understand the impacts and to influence
the decision. An EIS is a more detailed analysis than an EA and is
prepared for actions that appear to be major federal actions
significantly affecting the quality of the human environment. It
includes (1) a purpose and need statement (2) a reasonable range of
alternative means to meet that purpose and need (3) a description of
the affected environment and (4) a description of the environmental
effects of each of the alternatives. The EIS must identify the element
preferred alternative (if there is one) in the draft EIS.
5.1 When To Use
An EIS is prepared when a DHS element proposes an action that does
not qualify for a categorical exclusion or EA, and that could
constitute a major federal action significantly affecting the quality
of the human environment.
5.2 Actions Normally Requiring an EIS (1501.4), a Programmatic EIS, or
a Legislative EIS (1506.8)
A. Actions normally requiring EISs include, but are not limited to:
(1) Actions where the effects of a project or operation on the
human environment are likely to be highly controversial.
(2) Proposed major construction or construction of facilities that
would have a significant effect on wetlands, coastal zones, or other
environmentally sensitive areas.
(3) Major federal actions having a significant environmental effect
on the global commons, such as the oceans or Antarctica, as described
in section 2-3 of EO 12114.
(4) Change in area, scope, type, and/or tempo of operations that
may result in significant environmental effects.
(5) Where an action is required by statute or treaty to develop an
EIS.
B. A Programmatic EIS may be prepared on a broad federal action,
such as a program or plan, for which only very general environmental
information is known. A site-specific EIS or EA may then be tiered to
the PEIS and the environmental analysis discussed in the broader
statement be incorporated by reference in the site-specific analysis.
C. A Legislative EIS will be prepared and circulated for any
legislative proposal, for which the DHS or its elements are primarily
responsible and which involve significant environmental impacts.
5.3 Preparation and Filing (1506.9)
The proponent is responsible for initiation, preparation, and
approval of EISs. This official has overall responsibility for
formulating, reviewing, or proposing an action or, alternatively, has
been delegated the authority or responsibility to develop, approve, or
adopt a proposal or action. Preparation at this level will ensure that
the NEPA process will be incorporated into the planning process and
that the EIS will accompany the proposal through existing review
processes.
5.4 Combining Documents (1506.4)
Draft and Final EISs should refer to the underlying studies,
reports, and other documents considered in conjunction with the
preparation. The element should indicate how such documents could be
obtained. If possible, the supporting documents should be posted on a
DHS web site along with the EIS. With the exception of standard
reference documents, such as congressional materials, the proponent
should maintain a file of the respective documents, which may be
consulted by interested persons. If especially significant documents
are attached to the EIS, care should be taken to ensure that the
statement remains an essentially self-contained instrument easily
understood without the need for undue cross-reference.
[[Page 33062]]
5.5 Supplemental EISs (1502.9)
A. The proponent will prepare a supplemental EIS if there are
substantial changes to the proposal that are relevant to environmental
concerns or significant new circumstances or information relevant to
environmental concerns as discussed in 40 CFR 1502.9(c)(1). In those
cases where an action is not completed within a budget cycle (typically
2 years) from the execution of the ROD, the proponent will review the
EIS when proceeding with the action to determine whether a supplement
is needed.
B. The proponent may supplement a draft or final EIS or ROD at any
time to further the analysis. The proponent shall introduce any such
supplement into its formal administrative record if such a record
exists.
C. Any element decision to prepare a supplemental EIS will be
coordinated with the DEE unless such decision has been delegated to the
respective EPC.
D. The proponent will prepare, circulate, and file a supplement to
a draft or final EIS in the same manner as any other draft or final
EIS, except that scoping is optional for a SEIS. A separate ROD is
required for the supplement prior to any action being taken even if one
had been prepared for the final EIS that is being supplemented. In
special circumstances, it may be possible to negotiate alternative
procedures for the SEIS with CEQ. The DEE will lead any discussions of
alternative procedures with CEQ, unless delegated to the respective
EPC.
E. The public notice methods should be chosen to reach persons who
may be interested in or affected by the proposal, including actions
with effects of primarily local concern, may include, but not be
limited to, those listed in Attachment A, Section 2.6.B.
5.6 Proposals for Legislation (1506.8)
The proponent, in consultation with the DEE, is responsible for
ensuring compliance with NEPA in legislative proposals. The DEE will
maintain close coordination with the Office of the General Counsel
whenever legislation is proposed that requires NEPA compliance.
5.7 Decision Document: Record of Decision (ROD) (1505.2)
If the element decides to take action on a proposal covered by an
EIS, a ROD will be prepared. The element will publish the ROD in the
appropriate manner to make it available to the public and to reach the
range of interested parties involved. The element will also post the
ROD on the element web site, if one exists.
5.8 Review of Other Agencies' EISs
A. If any DHS element receives a request for EIS comment directly
from another agency, and the DHS element wants to provide comments on
the EIS, the DHS element will notify the DOSE about the request. DOSE
will check if other DHS elements have been requested to comment on the
same EIS.
(1) If no other DHS elements have received a request for comment,
DOSE will inform the requested element to provide comments it sees fit.
(2) If other DHS elements have received a request for comment, DOSE
will either:
(a) Coordinate the response between the DHS elements, or
(b) Direct one of the DHS elements to serve as the lead commenting
element.
B. Any pertinent DHS projects that are environmentally or
functionally related to the action proposed in the EIS should be
identified so that interrelationships can be discussed in the final
statement. In such cases, the DHS element should consider serving as a
joint lead agency or cooperating agency.
C. Several types of EIS proposals from non-DHS agencies should be
referred by the DHS element directly to DOSE for comment, including:
(1) Actions with national policy implications relating to the DHS
mission.
(2) Actions with national security, immigration, or law enforcement
implications.
(3) Legislation, regulations, and program proposals having national
impact on the DHS mission.
(4) Actions that may affect the DHS mission.
D. Provide a copy of formal comments on non-DHS agency EISs to
DOSE.
6.0 Special Circumstances
6.1 Emergencies (1506.11)
In addition to natural and technological hazards, Americans face
threats posed by hostile governments and extremist groups. These
threats to national security include acts of terrorism and war, and
require DHS action to protect public health and safety and may not
provide adequate time to prepare the appropriate NEPA analyses and
documentation.
A. In the event of such an emergency, the DHS will not delay an
emergency action necessary for national defense, security, or
preservation of human life or property in order to comply with this
Directive or the CEQ regulations. Examples of emergencies that may
require immediate DHS action include response to the release or
imminent release of hazardous, biological or radiological substances.
B. The DHS senior executive on site responding to the emergency
will consider the probable environmental consequences of the proposed
DHS actions and will minimize environmental damage to the maximum
degree practical, consistent with protecting human life, property, and
national security. At the earliest practical time, the DHS Senior
Executive on site responding to the emergency shall consult with the
DEE on the emergency and the DHS actions that may have environmental
impacts.
C. If the DHS Senior Executive on site and the DEE jointly conclude
that the DHS emergency response actions would qualify for a DHS or DHS
element categorical exclusion and give rise to no extraordinary
circumstances as defined in this Directive or the CEQ regulations, then
no further analysis or documentation is required to comply with NEPA
prior to proceeding with the DHS actions.
D. For those cases when the DHS senior executive on site and the
DEE jointly conclude that the DHS emergency response actions would not
qualify for a categorical exclusion, the DEE will, at a minimum,
document consideration of the potential environmental effects in an
environmental assessment for the DHS response action. If the DEE
concludes that no significant environmental effects will occur, a FONSI
will be prepared and filed. In the event the EA cannot be concluded
prior to the initiation of the DHS response actions, the DEE and DHS
senior executive will develop alternative arrangements for the
procedural requirements of other sections of this part and the CEQ
regulations pertaining to environmental assessments that, to the
maximum extent practical, ensure public notification and involvement
and focus on minimizing the adverse environmental consequences of the
DHS response action and the emergency. The DEE will inform CEQ of these
arrangements at the earliest opportunity.
E. If, at any time, the DHS Senior Executive on site responding to
the emergency or the DEE conclude that the emergency action appears to
be a major federal action significantly affecting the quality of the
human environment, the DEE will immediately notify the Council on
Environmental Quality regarding the emergency and will seek alternative
arrangements to comply with NEPA in accordance with 40 CFR section
1506.11.
F. The alternative arrangements developed under subsection D or E
apply only to actions necessary to control the immediate effects of the
[[Page 33063]]
emergency to prevent further harm to life or property. Other actions
remain subject to NEPA review as set forth herein.
G. A public affairs plan should be developed to ensure open
communication among the media, the public, and the DHS in the event of
an emergency.
6.2 Classified or Protected Information (1507.3(c))
A. Notwithstanding other sections of this Chapter, the DHS will not
disclose classified, protected, proprietary, or other information that
is exempted from disclosure by the Freedom of Information Act (FOIA)(5
U.S.C. 552), critical infrastructure information as defined in 6 U.S.C.
131(3), sensitive security information as defined in 49 CFR Part 1520,
E.O. 12958, the DHS Management Directive 0460.1, ``Freedom of
Information Act Compliance'', and the DHS Management Directive 11042,
``Safeguarding Sensitive But Unclassified (For Official Use Only)
Information'', or other laws, regulations, or Executive Orders
prohibiting or limiting the release of information.
B. The existence of classified or protected information does not
relieve the DHS of the requirement to assess and document the
environmental effects of a proposed action.
C. To the fullest extent possible, the DHS will segregate any such
classified or protected information into an appendix sent to
appropriate reviewers and decision makers, and allow public review of
the remainder of the NEPA analysis. If exempted material cannot be
segregated, or if segregation would leave essentially meaningless
material, the DHS elements will withhold the entire NEPA analysis from
the public; however, the DHS elements will prepare the NEPA analysis in
accordance with the CEQ Regulations and this Directive, and use it in
the DHS decision making process. The protected NEPA analysis may be
shared with appropriately cleared officials in CEQ, EPA, and within the
DHS. In such cases, other appropriate security and environmental
officials will ensure that the consideration of environmental effects
will be consistent with the letter and intent of NEPA. With regard to
an EIS requiring a security clearance for review, a team of cleared
personnel will review the classified or protected material for
compliance with federal, tribal, state, and local environmental
compliance. This team will be representative of internal environmental
professionals and external resource professionals with appropriate
clearances.
6.3 Procedures for Applicants (1501.2, 1506.5)
A. The DHS elements with the role of processing applications for
permits, grants, various certifications, awards, licenses, approvals,
or other major federal actions become the project proponent for
environmental planning purposes. These proponents must consider the
environmental effects of their action in accordance with this
Directive, unless the action is exempted by statute. The requirements
of this management Directive may be approached in a programmatic manner
(e.g. one NEPA evaluation and document for an entire category of
grants) or may be approached on a single application basis. In either
case, the DHS element must be alert to identify circumstances that may
be associated with any single application that would have potential for
significant environmental impacts.
B. For major categories of DHS actions involving a large number of
applicants, the appropriate DHS element will prepare and make available
generic guidance describing the recommended level and scope of
environmental information that applicants should provide and identify
studies or other information foreseeably required for later federal
action.
C. The DHS proponent shall begin the NEPA review as soon as
possible after receiving an application. The proponent must conduct an
independent and objective evaluation of the applicant's materials and
complete the NEPA process (including evaluation of any EA that may be
prepared by the applicant) before rendering a decision on the
application. The DHS proponents must consider the NEPA analysis in
reaching a decision.
D. In all cases, the DHS program proponent shall ensure that its
application submittal and approval process provides for appropriate
time and resources to meet the requirements of this Directive. At a
minimum, the application submittal and approval process must
incorporate the following provisions. Each DHS program proponent must
ensure, for each separate approval authority, that the responsibility
for meeting these provisions is appropriately allocated between the
applicant and the DHS for each program of applications and,
potentially, for each individual applicant.
(1) Consultation with the DHS proponent as early as possible in the
application development process to obtain guidance with respect to the
appropriate level and scope of any studies or environmental information
that the program proponent may require to be submitted as part of the
application. This includes the identification of the need for the DHS
proponents to consult with federal, tribal, state, and local
governments and with private entities and organizations potentially
affected by or interested in the proposed action in accordance with 40
CFR 1501.2(d)(2).
(2) Anticipation of issues that may lead to either or both (1) a
significant environmental impact; or (2) a concern with evaluating the
level of significance. This may include identification of information
gaps that may hinder an appropriate evaluation of significance.
(3) Performance of studies that the DHS proponent deems necessary
and appropriate to determine the potential for environmental impacts of
the proposed action.
(4) Identification and evaluation of appropriate options to resolve
potentially significant environmental impacts. This may include
development of appropriate actions to mitigate significant impacts.
(5) Consultation, as appropriate, with federal, tribal, state, and
local governments and with private entities and organizations
potentially affected by or interested in the proposed action as needed
during the NEPA process for scoping and other public involvement
activities. This would include consultation with minority populations
and low-income populations in accordance with E.O. 12898.
(6) Notification to the DHS proponent as early as possible of other
actions required to coordinate and complete the federal environmental
review and to eliminate duplication with state and local procedures.
(1506.2)
(7) Notification to the DHS proponent if the applicant changes the
scope of the proposed action.
(8) Notification to the DHS proponent if the applicant plans to
take an action that is within the proponent's jurisdiction that may
have a significant environmental impact or limit the choice of
alternatives. If the DHS proponent determines that the action would
have a significant environmental impact or limit the choice of
reasonable alternatives, the proponent will promptly notify the
applicant that the permit, license, etc. will be withheld until the
objectives and procedures of NEPA are achieved.
(9) Completion of appropriate NEPA documentation.
E. Final DHS approval of a grant, license, permit or other formal
request
[[Page 33064]]
from an applicant may be conditioned by provisions for appropriate
mitigation of potentially significant environmental impacts. The DHS
proponents will ensure that all mitigation committed to as part of the
ROD or FONSI is incorporated as conditions in whatever formal approval,
contract, or legal document is issued. The DHS proponents will also
ensure that appropriate monitoring of the implementation and success of
the mitigation is also a condition of the formal documentation. The
mitigation shall become a line item in the proponent's budget or other
funding document, if appropriate, or included in the legal documents
implementing the action (contracts, leases, or grants).
Appendix A: Definitions
Categorical exclusion (CE) (1508.4): ``Categorical exclusion''
means a category of actions which do not individually or
cumulatively have a significant effect on the environment and which
have been found to have no such effect in procedures adopted by a
federal agency in implementation of these regulations (Sec. 1507.3)
and for which, therefore, neither an environmental assessment nor an
environmental impact statement is required.
Cooperating Agency (1508.5): ``Cooperating agency'' means any
federal agency other than a lead agency which has jurisdiction by
law or special expertise with respect to any environmental impact
involved in a proposal (or a reasonable alternative) for legislation
or other major federal action significantly affecting the quality of
the human environment. The selection and responsibilities of a
cooperating agency are described in Sec. 1501.6. A State or local
agency of similar qualifications or an Indian Tribe, may by
agreement with the lead agency become a cooperating agency.
Council on Environmental Quality (CEQ): NEPA created in the
Executive Office of the President a Council on Environmental
Quality. The Chairman is appointed by the President with the advice
and consent of the Senate. The Council, among other things,
appraises programs and activities of the Federal Government in the
light of the policy set forth in title I of NEPA and formulates and
recommends national policies to promote the improvement of the
quality of the environment.
Designated DHS Official: Senior DHS officials as designated by
the Secretary, Deputy Secretary, or Under Secretaries.
Effects (1508.8): ``Effects'' include: (a) Direct effects, which
are caused by the action and occur at the same time and place. (b)
Indirect effects, which are caused by the action and are later in
time or farther removed in distance, but are still reasonably
foreseeable. Indirect effects may include growth inducing effects
and other effects related to induced changes in the pattern of land
use, population, density or growth rate, and related effects on air
and water and other natural systems, including ecosystems.
Effects and impacts as used in these regulations are synonymous.
Effects includes ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic,
social, or health, whether direct, indirect, or cumulative. Effects
may also include those resulting from actions which may have both
beneficial and detrimental effects, even if on balance the agency
believes that the effect will be beneficial.
Element: Any of the DHS organizational elements, including
agencies, bureaus, services, directorates, etc.
Environmental assessment (EA) (1508.9): ``Environmental
Assessment'':
(a) means a concise public document for which a federal agency
is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or
a finding of no significant impact.
(2) Aid an element in compliance with the Act when no
environmental impact is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the
proposal, of alternatives as required by NEPA section 102(2)(E), of
the environmental impacts of the proposed action and alternatives,
and a listing of agencies and persons consulted.
Environmental documents (1508.10): ``Environmental documents''
the document specified in Sec. 1508.9 (environmental assessment),
Sec. 1508.11 (environmental impact statement), Sec. 1508.13
(finding of no significant impact), and Sec. 1508.22 (notice of
intent).
Environmental impact analysis: A generic term that includes EAs
and EISs.
Environmental impact statement (EIS) (1508.11): ``Environmental
impact statement'' means a detailed written statement as required by
section 102(2)(C) of the Act. It includes (1) a purpose and need
statement, (2) a reasonable range of alternative means to meet that
purpose and need, (3) a description of the affected environment and
(4) a description of the environmental effects of each of the
alternatives. The EIS must identify the element preferred
alternative (if there is one) in the draft EIS.
Finding of No Significant Impact (FONSI) (1508.13): ``Finding of
no significant impact'' means a document by a federal agency briefly
presenting the reasons why an action, not otherwise excluded (Sec.
1508.4), will not have a significant effect on the human environment
and for which an environmental impact statement therefore will not
be prepared. It shall include the environmental assessment or a
summary of it and shall note any other environmental documents
related to it (Sec. 1501.7(a)(5)). If the assessment is included,
the finding need not repeat any of the discussion in the assessment
but may incorporate it by reference.
Environmentally Sensitive Areas: These include, but are not
limited to, (1) proposed federally listed, threatened, or endangered
species or their designated critical habitats; (2) properties listed
or eligible for listing on the National Register of Historic Places;
(3) areas having special designation or recognition such as prime or
unique agricultural lands, coastal zones, designated wilderness or
wilderness study areas, wild and scenic rivers, 100 year
floodplains, wetlands, sole source aquifers, National Wildlife
Refuge, National Parks, etc.
Lead Agency (1508.16): ``Lead agency'' means the agency or
agencies preparing or having taken primary responsibility for
preparing the environmental impact statement.
Major Federal Action (1508.18): ``Major federal action''
includes actions with effects that may be major and which are
potentially subject to federal control and responsibility. Major
reinforces but does not have a meaning independent of significantly
(Sec. 1508.27). Actions include the circumstance where the
responsible officials fail to act and that failure to act is
reviewable by courts or administrative tribunals under the
Administrative Procedure Act or other applicable law as element
action.
(a) Actions include new and continuing activities, including
projects and programs entirely or partly financed, assisted,
conducted, regulated, or approved by federal agencies; new or
revised element rules, regulations, plans, policies, or procedures;
and legislative proposals (Secs. 1506.8, 1508.17). Actions do not
include funding assistance solely in the form of general revenue
sharing funds, distributed under the State and Local Fiscal
Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no federal
agency control over the subsequent use of such funds. Actions do not
include bringing judicial or administrative civil or criminal
enforcement actions.
(b) Federal actions tend to fall within one of the following
categories:
(1) Adoption of official policy, such as rules, regulations, and
interpretations adopted pursuant to the Administrative Procedure
Act, 5 U.S.C. 551 et seq.; treaties and international conventions or
agreements; formal documents establishing an agency's policies which
will result in or substantially alter agency programs.
(2) Adoption of formal plans, such as official documents
prepared or approved by federal agencies which guide or prescribe
alternative uses of federal resources, upon which future element
actions will be based.
(3) Adoption of programs, such as a group of concerted actions
to implement a specific policy or plan; systematic and connected
element decisions allocating element resources to implement a
specific statutory program or executive directive.
(4) Approval of specific projects, such as construction or
management activities located in a defined geographic area. Projects
include actions approved by permit or other regulatory decision as
well as federal and federally assisted activities.
Mitigation (1508.20): ``Mitigation includes:
(a) Avoiding the impact altogether by not taking a certain
action or parts of an action.
(b) Minimizing impacts by limiting the degree or magnitude of
the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
[[Page 33065]]
(d) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing
substitute resources or environments.
National Environmental Policy Act (NEPA): Public Law 91-190
declares a national policy which will encourage productive and
enjoyable harmony between man and his environment; establishes a
Council on Environmental Quality in the Executive Office of the
President; and requires that every recommendation or report on
proposals for legislation and other major federal actions
significantly affecting the quality of the human environment, a
detailed statement (EIS) by the responsible official.
Notice of Intent (NOI) (1508.22): ``Notice of Intent'' means a
notice that an environmental impact statement will be prepared and
considered. The notice shall briefly:
(a) Describe the proposed action and possible alternatives.
(b) Describe the element's proposed scoping process including
whether, when, and where any scoping meeting will be held.
(c) State the name and address of a person within the element
who can answer questions about the proposed action and the
environmental impact statement.
Proponent: The identified project or program manager. Normally
this person resides in the operational line of authority. The
proponent has the immediate authority to decide a course of action
or has the authority to recommend course of action, from among
options, to the next higher organization level (e.g. district to
region) for approval. The proponent must also be in a position with
the authority to establish the total estimate of resource
requirements for the proposed action or, in the execution phase,
have the authority to direct the use of resources. While the
proponent is not normally expected to personally execute and
document the environmental planning process, he or she has the lead
role and is responsible for initiating the effort and retains
responsibility (with support from the EPC) for the content and
quality of the process and documentation.
Proposal (1508.23): ``Proposal'' exists at that stage in the
development of an action when an agency subject to the Act has a
goal and is actively preparing to make a decision on one or more
alternative means of accomplishing that goal and the effects can be
meaningfully evaluated. Preparation of an environmental impact
statement on a proposal should be timed (Sec. 1502.5) so that the
final statement may be completed in time for the statement to be
included in any recommendation or report on the proposal. A proposal
may exist in fact as well as by agency declaration that one exists.
Record of Environmental Consideration (REC): A REC is a means of
documenting element consideration of an action to ensure that it
clearly fits a category of excludable actions (section 4.3), that it
is not a small part of a larger action (section 3.2B), and that no
extraordinary circumstances exist (3.2C). A REC is an internal DHS
document to accompany the determination that a proposed action can
be categorically excluded.
Record of Decision (ROD) (1505.2): The record, which may be
integrated into any other record prepared by the agency shall:
(a) state what the decision was,
(b) identify all alternatives considered by the element in
reaching its decision, specifying the alternative or alternatives
which were considered to be environmentally preferable. An element
may discuss preferences among alternatives based on relevant factors
including economic and technical considerations and element
statutory missions. An element shall identify and discuss all such
factors including any essential considerations of national policy
which were balanced by the element making its decision and state how
those considerations entered into its decision.
(c) State whether all practical means to avoid or minimize
environmental harm from the alternative selected have been adopted,
and if not, why they were not. A monitoring and enforcement program
shall be adopted and summarized where applicable for any mitigation.
Scoping: Scoping (described at 40 CFR Sec. 1501.7) shall be an
early and open process for determining the scope of issues to be
addressed and for identifying the significant issues related to a
proposed action. This process shall be termed scoping. As soon as
practicable after its decision to prepare an environmental impact
statement and before the scoping process the lead agency shall
publish a notice of intent (Sec. 1508.22) in the Federal Register
except as provided in Sec. 1507.3(e).
(a) As part of the scoping process the lead agency shall:
(1) Invite the participation of affected Federal, State, and
local agencies, any affected Indian tribe, the proponent of the
action, and other interested persons (including those who might not
be in accord with the action on environmental grounds), unless there
is a limited exception under Sec. 1507.3(c). An agency may give
notice in accordance with Sec. 1506.6.
(2) Determine the scope (Sec. 1508.25) and the significant
issues to be analyzed in depth in the environmental impact
statement.
(3) Identify and eliminate from detailed study the issues which
are not significant or which have been covered by prior
environmental review (Sec. 1506.3), narrowing the discussion of
these issues in the statement to a brief presentation of why they
will not have a significant effect on the human environment or
providing a reference to their coverage elsewhere.
(4) Allocate assignments for preparation of the environmental
impact statement among the lead and cooperating agencies, with the
lead agency retaining responsibility for the statement.
(5) Indicate any public environmental assessments and other
environmental impact statements which are being or will be prepared
that are related to but are not part of the scope of the impact
statement under consideration.
(6) Identify other environmental review and consultation
requirements so the lead and cooperating agencies may prepare other
required analyses and studies concurrently with, and integrated
with, the environmental impact statement as provided in Sec.
1502.25.
(7) Indicate the relationship between the timing of the
preparation of environmental analyses and the agency's tentative
planning and decisionmaking schedule.
(b) As part of the scoping process the lead agency may:
(1) Set page limits on environmental documents (Sec. 1502.7).
(2) Set time limits (Sec. 1501.8).
(3) Adopt procedures under Sec. 1507.3 to combine its
environmental assessment process with its scoping process.
(4) Hold an early scoping meeting or meetings which may be
integrated with any other early planning meeting the agency has.
Such a scoping meeting will often be appropriate when the impacts of
a particular action are confined to specific sites.
(c) An agency shall revise the determinations made under
paragraphs (a) and (b) of this section if substantial changes are
made later in the proposed action, or if significant new
circumstances or information arise which bear on the proposal or its
impacts. Scoping is used to define the scope of the environmental
impact analysis and to identify institutional relationships in the
process of the study.
The scope (described at 40 C.F.R. Sec. 1508.25) consists of the
range of actions, alternatives, and impacts to be considered in an
environmental impact statement. The scope of an individual statement
may depend on its relationships to other statements (Secs.1502.20
and 1508.28). To determine the scope of environmental impact
statements, agencies shall consider 3 types of actions, 3 types of
alternatives, and 3 types of impacts. They include:
(a) Actions (other than unconnected single actions) which may
be:
1. Connected actions, which means that they are closely related
and therefore should be discussed in the same impact statement.
Actions are connected if they:
(i) Automatically trigger other actions which may require
environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken
previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on
the larger action for their justification.
2. Cumulative actions, which when viewed with other proposed
actions have cumulatively significant impacts and should therefore
be discussed in the same impact statement.
3. Similar actions, which when viewed with other reasonably
foreseeable or proposed agency actions, have similarities that
provide a basis for evaluating their environmental consequences
together, such as common timing or geography. An agency may wish to
analyze these actions in the same impact statement. It should do so
when the best way to assess adequately the combined impacts of
similar actions or reasonable alternatives to such actions is to
treat them in a single impact statement.
(b) Alternatives, which include:
4. No action alternative.
[[Page 33066]]
5. Other reasonable courses of actions.
6. Mitigation measures (not in the proposed action).
(c) Impacts, which may be: (1) Direct; (2) indirect; (3)
cumulative.
Tiering (1508.28): ``Tiering'' refers to the coverage of general
matters in broader environmental impact statements (such as national
program or policy statements) with subsequent narrower statements or
environmental analyses (such as regional or basin-wide program
statements or ultimately site-specific statements) incorporating by
reference the general discussions and concentrating solely on the
issues specific to the statement subsequently prepared. Tiering is
appropriate when the sequence of statements or analyses is:
(a) From a program, plan, or policy environmental impact
statement to a program, plan, or policy statement or analysis of
lesser scope or to a site-specific statement or analysis.
(b) From an environmental impact statement on a specific action
at an early stage (such as need and site selection) to a supplement
(which is preferred) or a subsequent statement or analysis at a
later stage (such as environmental mitigation). Tiering in such
cases is appropriate when it helps the lead element to focus on the
issues which are ripe for decision and exclude from consideration
issues already decided or not yet ripe.
[FR Doc. 04-13111 Filed 6-10-04; 8:45 am]
BILLING CODE 4410-10-P