[Federal Register: April 4, 2006 (Volume 71, Number 64)]
[Notices]               
[Page 16790-16820]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap06-43]                         


[[Page 16790]]

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DEPARTMENT OF HOMELAND SECURITY

 
Environmental Planning Program

AGENCY: Department of Homeland Security.

ACTION: Notice of final directive.

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SUMMARY: The purpose of this Notice is to inform the public that the 
Department of Homeland Security (DHS or the Department) is issuing its 
final policy and procedures for implementing the National Environmental 
Policy Act of 1969 (NEPA) and related executive orders and 
requirements. This Notice also responds to the comments received on the 
draft Management Directive (draft Directive), published on June 14, 
2004.

DATES: This Directive will be effective on April 19, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. David Reese, Office of Safety and 
Environment, Department of Homeland Security, 202.692.4224.

SUPPLEMENTARY INFORMATION:

Table of Abbreviations

CATEX--Categorical Exclusion
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
Department--Department of Homeland Security
EA--Environmental Assessment
E.O.--Executive Order
FEMA--Federal Emergency Management Agency
FLETC--Federal Law Enforcement Training Centers
FONSI--Finding of No Significant Impact
FSE--Full Scale Exercise
FR--Federal Register
NEPA--National Environmental Policy Act
ODP--Office of Domestic Preparedness
ROD--Record of Decision
U.S.C.--United States Code
USCG--United States Coast Guard

Table of Contents

Background
Scope and Applicability
General Comments and Responses
Section by Section Comments, Responses, and Other Changes
Specific Comments on Categorical Exclusions and Responses
Management Directive 5100.1, Environmental Planning Program
Management Directive 5100.1, Appendix A, Timely and Effective 
Environmental Planning in the Department of Homeland Security
Planning in the Department of Homeland Security
Management Directive 5100.1, Glossary

Background

    DHS has the mission to lead the unified national effort to secure 
the United States of 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, the Department 
ensures safe and secure borders, facilitates lawful immigrants and 
visitors, and promotes the free flow of commerce among nations.
    This Directive establishes policy and procedures to ensure the 
integration of environmental considerations into the unique mission of 
the Department. It outlines roles and responsibilities for compliance 
with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et 
seq., and other laws and requirements for stewardship of the 
environment. This Directive also establishes a framework for the 
detailed, balanced, and systematic consideration of environmental 
stewardship in the planning and execution of DHS activities.
    NEPA is the basic charter and foundation for stewardship of 
environmental resources by the agencies of the Federal government 
within the United States. It establishes policy, sets goals, and 
provides a tool for carrying out national environmental policy. NEPA 
requires 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. 42 U.S.C. 4331.
    This Directive includes processes for preparing Environmental 
Assessments (EA), Findings of No Significant Impact (FONSI), and 
Environmental Impact Statements (EIS). It also includes procedures for 
DHS to establish new or revised Categorical Exclusions (CATEX). DHS 
will use this Directive in conjunction with NEPA, the Council on 
Environmental Quality (CEQ) regulations at 40 CFR parts 1500-1508, and 
other pertinent environmental laws, regulations, and Executive Orders 
(E.O.).
    The Department published a draft Directive and a request for 
comments in the Federal Register on June 14, 2004. 69 FR 33043; see 
also 69 FR 42760 (Jul. 16, 2004) reopening comment period. The draft 
Directive proposed DHS policy for meeting the requirements under NEPA, 
including a proposed list of categories of DHS actions excluded from 
further consideration under NEPA, known as categorical exclusions.
    More than 7,500 letters and e-mails were received during the 
comment period. The vast majority of those comments consisted of 
identical letters and e-mails, where only the name and address 
differed. The Department received fewer than 100 unique comments. The 
Department has posted all unique comments and an example of each 
identical form comment on the DHS public web site, listed below. These 
comments are categorized and discussed below. This final Directive 
incorporates clarifications and limitations added in consideration of 
the public comments.
    A copy of this publication, the draft Directive, all unique 
comments received during the comment period, examples of form comments, 
and a summary of the administrative record are available at http://www.dhs.gov/dhspublic/display?theme=13&content=5278
.


Scope and Applicability

    This Directive applies to all of DHS, including its components. 
Components may supplement this Directive, provided that any supplements 
are consistent with the Directive. This Directive shall prevail in case 
of any inconsistencies between this directive and supplementary 
procedures. Currently, FEMA has NEPA regulations, 44 CFR Part 10, and 
the U.S. Coast Guard has a Commandant's Instruction Manual on NEPA, 
16475.1 series. These components will amend their procedures to conform 
to this Directive.

General Comments and Responses

    The draft Directive contained proposed policy and procedures for 
DHS to comply with NEPA and ensure the integration of environmental 
considerations into mission planning and project decision making. It 
also proposed the means for DHS to follow the letter and spirit of NEPA 
and comply fully with CEQ regulations. Both the draft and final 
Directive encompass requirements in addition to NEPA and establish the 
DHS Environmental Planning Program. The final Directive contains a 
detailed set of policy and procedural requirements to implement NEPA 
and the environmental planning function in a reliable, timely, and 
cost-effective manner.
    Following is a discussion of the comments. Comments of a general 
nature are addressed first, followed by comments on specific sections 
of the Directive. Since there were many comments on specific proposed 
CATEXs, these comments and responses have been placed into a separate 
grouping and are addressed one-by-one in the last section of comments 
and responses.
    1. Categorical Exclusions: Too Many and Too Broad. About 70 
commenters noted that the Department's draft

[[Page 16791]]

Directive had an exceptionally large number of components responsible 
for a vast array of activities and operations under its purview. It was 
generally argued that many of these activities have a clear potential 
for significant adverse environmental impacts. These comments indicated 
a concern that the draft ignored what some commenters defined as an 
accepted practice that the use of Categorical Exclusions be limited 
primarily to routine administrative actions. Some comments stated that 
the draft attempted to create a number of overly broad and vague 
Categorical Exclusions for activities with the potential for 
significant adverse environmental effects. Other comments noted that, 
while federal agencies are accorded a degree of deference in creating 
their Categorical Exclusions, they must still provide a sound and 
factually supported basis for finding that certain agency actions will 
not individually or cumulatively have a significant impact on the 
environment. Some commenters also generally argued that some proposed 
Categorical Exclusions go far beyond what is authorized by CEQ 
regulations and relevant case law.
    In response to these comments, DHS recognizes that the creation of 
a Cabinet-level Department from numerous agencies and elements of other 
agencies is certainly an historic and complex event. In addition, DHS 
was mandated by the Homeland Security Act to functionally integrate its 
activities to establish consistent business processes throughout the 
Department. Numerous functional areas such as financial management, 
procurement, human resources management, and asset management, either 
have or are actively completing the establishment of common rules and 
operating procedures throughout DHS. From an environmental planning 
perspective, this meant establishing a common set of policy, guidance, 
and implementing procedures for use by all DHS components.
    To respond to this challenge, DHS used a very lengthy and complex 
series of deliberations to create and support the CATEXs included in 
this NEPA Directive. The Council on Environmental Quality's Regulations 
for Implementing the Procedural Provisions of the National 
Environmental Policy Act contemplates that CATEXs will serve as a tool 
for agencies to conserve time and effort by defining categories of 
actions that do not individually or cumulatively have a significant 
effect on the human environment and are therefore exempt from the 
requirement to prepare further analysis in an environmental assessment 
or an environmental impact statement. 40 CFR 1500.4(p). This Directive 
and the NEPA directives of most agencies include a list of CATEXs that 
extend beyond routine administrative actions. The Department empanelled 
a group of federal employees from its components with sufficient 
expertise and experience to identify such categories of actions most 
relevant to DHS, hereinafter referred to as the Panel. That Panel 
critically analyzed the actions within the categories that they 
identified to ensure that only actions with no potential for individual 
or cumulative significant impact would be included in the list of 
CATEXs. The Panel also took pains to ensure that the actions were 
sufficiently limited to actions for which the Department maintained a 
demonstrated history of successful performance with no significant 
effect on the human environment. The CATEXs were developed on the basis 
of an administrative record from the components that comprise the 
Department and the experiences of the Panel members.
    2. Alleged Conflict between NEPA Scoping Requirements and 
Consultation Requirements under Section 106 of the National Historic 
Preservation Act. One set of comments stated that the scoping 
provisions that require involvement of other federal agencies, non-
federal interests, and the general public in defining the scope of 
potential environmental impacts from a proposed activity do not 
adequately fulfill requirements to consult with federally-recognized 
Indian Tribes and Native Hawaiian organizations under Section 106 of 
the National Historic Preservation Act when the proposal may impact a 
historic property and could become a source of conflict.
    DHS disagrees. These comments refer to an issue that was not 
referenced, expanded, or limited by the draft Directive. Neither the 
CEQ regulations that implement NEPA nor the draft Directive prescribe a 
standard scoping process. Furthermore, the Advisory Council on Historic 
Preservation's regulations for implementing Section 106 of the National 
Historic Preservation Act, at 36 CFR part 800, provide for coordinating 
Section 106 reviews with the NEPA process or using the NEPA process to 
fulfill the requirements of Section 106. More specifically, 36 CFR 
800.2(c)(2), requires consultation with federally recognized Indian 
Tribes and Native Hawaiian organizations in fulfilling Section 106 
review requirements.
    The Department's Directive defines the need to coordinate with 
federally-recognized Indian Tribes and Native Hawaiian organizations 
during the NEPA process in Section 6. That policy is further reinforced 
in Sections 1 and 2 of Appendix A, which states that the Department's 
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. Furthermore, Executive Order 13175, ``Consultation 
and Coordination with Indian Tribal Governments'' dated November 9, 
2000, directs all federal departments to, among other things, 
``strengthen the United States government-to-government relationships 
with Indian tribes and establish regular and meaningful consultation 
and collaboration with tribal officials in the development of Federal 
policies that have tribal implications * * *'' Each component in DHS 
provides the framework by which they consult and coordinate with tribes 
concerning their specific program areas, including any environmental 
planning activities that may involve tribes.
    3. General Administrative and Editorial Changes. Names and titles 
of offices and positions have been changed to reflect the current 
organizational structure, program responsibilities, and nomenclature 
within DHS. The abbreviation used for the term ``Categorical 
Exclusion'' has been changed from ``CE,'' the term used in the draft, 
to ``CATEX'' to avoid confusion with other commonly abbreviated terms 
used in DHS. Other changes have been made in coordination with CEQ to 
clarify language to ensure that this Directive would conform to CEQ 
regulations. Redundancies have been eliminated. Grammatical changes, 
structural changes, and clarifications have been made that are not 
intended to change any of the draft's meaning or intent.

Section By Section Comments, Responses, and Other Changes

    1. Management Directive, Section 6.F. There were no comments on 
this specific section. However, language in this section has been 
changed to clarify that no actions will be taken that limit 
alternatives considered for any proposed action for which an EA or EIS 
process is being conducted. These changes would not change the 
obligation for DHS to ensure that the Record of Decision (ROD) and the 
FONSI are public documents and will reflect the final decision.
    2. Appendix A, Section 2.6., Public Involvement. There were no 
comments

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on this section; however, the opening paragraph was modified to more 
clearly express DHS policy on public involvement in environmental 
planning.
    3. Appendix A, Section 2.6.A, Public Involvement. There were no 
comments on this section; however, consideration of some comments on 
Appendix A, Section 4.0 resulted in changes here. The extent of public 
comment and involvement in the EA and FONSI process is defined in 40 
CFR 1501.4(b) which states, ``The agency shall involve environmental 
agencies, applicants, and the public, to the extent practicable, in 
preparing assessments required by section 1508.9(a)(1)'' (where the 
referenced section refers to environmental assessments). Neither NEPA 
nor CEQ regulations prescribe a set period of public comment required 
in the EA and FONSI process--apart from the FONSI publication required 
in the special situations described in 40 CFR 1501.4(e)(2)--leaving it 
up to the agencies themselves to define the degree of public 
involvement deemed practicable under the circumstances. Appendix A, 
Section 2.6.A has been revised, in consultation with CEQ, to clarify 
that public involvement is required in the environmental impact 
evaluation process that would be documented in an environmental 
assessment under NEPA. Other changes have been made to clarify the 
relationship of this section to other sections in the Directive.
    4. Appendix A, Section 3.2. paragraph B. There were no comments on 
this section; however, several commenters expressed a general concern 
over the potential for CATEXs to be applied to smaller repetitive 
actions in a manner that could avoid a more in-depth review under NEPA 
of the potential for significant cumulative environmental impacts. The 
wording of this section has been modified to more clearly state that 
the CATEXs are not intended to be used in this repetitive manner.
    5. Appendix A, Section 3.2. paragraph C. Commenters objected to the 
treatment of ``extraordinary circumstances'' in connection with 
Categorical Exclusions. Categorical Exclusions are categories of 
actions that can be shown to have no potential for significant impact 
on the human environment under normal circumstances and would require 
no further analysis under NEPA. However, in recognition of the variety 
of situations where DHS may take action, DHS had proposed a series of 
extraordinary circumstances where an otherwise categorically excludable 
action may have potential for significant adverse impact to the human 
environment and would require further analysis under NEPA. Commenters 
claimed that the draft Directive erroneously used a significance test 
when legal precedent has established that a CATEX may not be used if 
there is the potential for ``any adverse effect.''
    DHS disagrees. Upon further review of the language in this 
Directive, including consultation with the Council on Environmental 
Quality, DHS believes that the manner in which it will apply 
``extraordinary circumstances'' in this Directive is in conformance 
with appropriate precedent. CEQ regulations specify that a CATEX may be 
used if there is no significant effect on the human environment, with 
exceptions to provide for those situations when there are 
``extraordinary circumstances.'' 40 CFR 1508.4. Section 3.2 of the 
Directive clearly defines that there are to be three ``tests'' by which 
the application of any CATEX to a particular action are viewed on a 
case-by-case basis. Sub-section (C) within section 3.2 defines one of 
those tests as that of ensuring that no ``extraordinary circumstances'' 
exist. That particular test requires that, in a matter that might 
otherwise be subject to a particular CATEX, ``* * * [n]o extraordinary 
circumstances with potentially significant impacts relating to the 
proposed action exist * * *'' Therefore, if potentially significant 
impacts related to the proposed action exist, the CATEX may not be 
applied. The consideration of this and the other ``tests'' contemplated 
by Section 3.2 ensure that, where ``* * * the proposed action does not 
meet these conditions or a statute does not exempt it or an emergency 
provision does not apply, an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS) must be prepared before the action 
may proceed.''
    The concern addressed by the comments in this area suggests that 
the language in the Directive that states, ``* * * [s]pecific actions 
that might otherwise be categorically excluded, but are associated with 
one or more extraordinary circumstances, should be carefully evaluated 
to determine whether a CATEX is appropriate * * *'' would allow the 
application of a CATEX to a particular action with foreseeable 
significant impact on the environment even where not exempted by a 
statute or emergency provision. The wording of this section has been 
revised to ensure that DHS will evaluate whether extraordinary 
circumstances may exist and have a record of the consideration of those 
extraordinary circumstances. Likewise, the language of Section 3.3.B 
has been modified to clarify this intent.
    Subparagraph (4) in this section has been revised from a lengthy 
list of possible natural resources and other geographic designations to 
simply require that procedures for applying categorical exclusions take 
into account the potential to effect an environmentally sensitive area. 
The effect of this change is to lengthen the list of concerns that must 
be considered under this subparagraph. Consideration of the 
extraordinary circumstances contained in Subparagraph (4) was 
previously limited to only those subjects listed. The term 
``environmentally sensitive area'' has been defined in the Glossary to 
be more comprehensive in its inclusion of various types of natural 
resources and geographic areas of special interest in an environmental 
impact evaluation process. The effect of this change is to ensure that 
a broader range of subjects will be addressed when Subparagraph (4) is 
used in consideration of extraordinary circumstances.
    A new subparagraph (11) has been added in consideration of public 
comments and to conform to CEQ regulations to ensure that CATEXs are 
not used in situations where a proposed DHS action is related to other 
actions with individually insignificant, but cumulatively significant, 
impacts.
    6. Appendix A, Section 3.3.B, Record of Environmental 
Consideration. There were no specific comments on this section. This 
section has been revised to clarify the purpose and use of a Record of 
Environmental Consideration and to conform to the changes in Appendix 
A, Section 3.2.C, Extraordinary Circumstances.
    7. Appendix A, Section 4.0, Environmental Assessments. Commenters 
urged DHS to adopt a policy that would favor seeking public comment on 
both Environmental Assessments and Environmental Impact Statements, 
especially where issues are likely to be controversial.
    Consideration of this recommendation resulted in several changes to 
Appendix A, section 2.6.A, as described earlier. Appendix A, section 
4.0, has also been revised to more clearly reflect a policy of 
involving the public in EAs and to more clearly provide direction on 
the appropriate public involvement process. A new section 4.1 has been 
added to clearly describe the purpose of an environmental assessment 
and the former section 4.1 was renumbered to section 4.2, with some 
edits and clarifying language. The text that provided direction on 
alternatives, the internal review process within DHS, the FONSI, and 
the public involvement requirements has been moved to a new

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section 4.3, Considerations in Preparation of an EA or a Programmatic 
EA.
    8. Appendix A, Section 4.3., Considerations in Preparation of an EA 
or a Programmatic EA. This is a new section of the Directive. 
Consideration of comments urging DHS to adopt a policy that would favor 
seeking public comment on Environmental Assessments resulted in the 
consolidation of information from several parts of the Directive into 
this new section and the addition of some clarifying language. The 
language in paragraphs A, E, and F now clearly emphasizes the policy to 
encourage public involvement in the preparation of an EA. This section 
now clearly describes its relationship to the public involvement 
factors listed in section 2.6, and provides options to achieve the 
public involvement policy. The legal importance of the FONSI and any 
mitigation measures that may be in the FONSI have been clarified. The 
responsibility of the agency to implement mitigation measures contained 
in a FONSI has also been more clearly stated.
    The sections following 4.3 have been renumbered to 4.4, 4.5, and 
4.6, with appropriate editorial and language clarifications, to reflect 
the addition of the two new sections 4.1 and 4.3.
    9. Appendix A, Section 6.2, Classified or Protected Information. 
Many comments stated that the draft Directive asserted unqualified 
authority to keep potentially large amounts of information on the 
environmental impacts of DHS operations secret and out of public view 
in contravention of the disclosure requirements of NEPA and CEQ 
regulations. The commenters argued that DHS should limit the 
Directive's nondisclosure provisions strictly to information that 
unambiguously qualifies for withholding pursuant to a Freedom of 
Information Act (FOIA) exemption. They further contended that to do 
otherwise would violate the provisions of NEPA and CEQ regulations 
governing the disclosure and nondisclosure of information. The comments 
also conveyed concern that certain provisions of the draft Directive, 
as well as new categories of information endorsed in the draft 
Directive, such as Critical Infrastructure Information (CII) and 
Sensitive Security Information (SSI), will be used to withhold 
information about the environmental impacts of DHS operations from the 
public. Some comments argued specifically that the manner in which CII 
and SSI were applied in the draft Directive exceeded the statutory 
mandate. In general, these comments claimed that the draft Directive 
was seeking to unacceptably restrict currently available types of 
information relevant to the health, safety, and well-being of the 
public in violation of the spirit and letter of NEPA.
    The Department carefully reviewed the comments received regarding 
public disclosure of information in environmental impact assessments 
and other documents prepared under NEPA and determined that the 
intention of the initial formulation of policy required clarification. 
DHS intends to comply with all applicable statutes and regulations 
aimed at securing the homeland and making environmental documents 
publicly available. The Department has many responsibilities, including 
the protection of certain information under statutes such as the 
Homeland Security Act, 6 U.S.C. 101, the Aviation Transportation 
Security Act, 49 U.S.C. 114, and the Maritime Transportation Security 
Act, 46 U.S.C. 701. The Department also has responsibilities under 
FOIA, 5 U.S.C. 552, to make information available to the public.
    DHS will appropriately share information that was relied upon to 
formulate decisions that have environmental implications. DHS 
recognizes that there may be instances where we cannot disclose all 
information that supports environmental determinations because the 
information is otherwise protected from disclosure under the mandates 
that the Department must follow. For example, classified information 
may not be released pursuant to FOIA. See 5 U.S.C. 552(b)(1). Likewise, 
SSI and Protected CII are exempted from disclosure under FOIA, pursuant 
to 5 U.S.C. 552(b)(3). See 49 U.S.C. 114(s), 49 CFR part 1520, 6 U.S.C. 
133(a), 6 CFR part 29. Other information will be available to the 
public in accordance with FOIA. Section 6.2 has been revised to clarify 
that FOIA will be followed in public disclosure of environmental impact 
assessments and other documents prepared under NEPA.

Specific Comments on Categorical Exclusions and Responses

    Categorical Exclusion A4. CATEX A4 governs certain administrative 
and regulatory activities. This CATEX has been revised, in consultation 
with CEQ, in order to avoid the potential for confusion in its 
application and to ensure that it is not applied to the development of 
documents that may recommend activities with potential to significantly 
impact the quality of the human environment. Specifically, the 
Department has limited the types of actions contemplated by this CATEX 
to ensure that if activities under this CATEX result in proposals for 
further action, this CATEX may only apply if those proposals are 
already contemplated by another DHS CATEX. Upon further review, it was 
found that this CATEX could be interpreted in a manner to include the 
development of documents containing proposals with potential to 
significantly impact the quality of the human environment. In 
particular the development of documents, such as those cited in the 
examples, could be interpreted broadly to include documents such as 
reports on levels of business activity or plans for physical 
infrastructure development that may have greater potential to 
significantly impact the quality of the human environment. The 
Department intends that the change will clarify the narrow focus of 
this CATEX by expressly excluding from its contemplation the 
development of any proposals for actions where the actions themselves 
would not be covered by a CATEX.
    Categorical Exclusion A6.\1\ This CATEX was the subject of comments 
concerning: (1) The references to waste disposal and (2) public 
information regarding the use of chemicals and low level radio nuclides 
for analytical testing and research. Commenters expressed concern that 
the analysis of impacts from waste disposal for permitted landfills may 
have been done in the past, but that may not account for new waste. 
Commenters also stated that using the existing categorical exclusions 
from the Federal Emergency Management Agency and the United States 
Coast Guard as a basis for this Categorical Exclusion was not 
appropriate, since those CATEXs were limited to procurement and storage 
of such materials and not to disposal. Commenters also expressed 
concern that the public should not be limited in its ability to access 
information regarding the use of chemicals and low level radio nuclides 
for analytical testing and research. One comment, for example, wanted 
DHS to demonstrate or document how ``* * * Chemicals and low level 
radio nuclides for analytical testing and research * * *'' are being 
used safely.
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    \1\ The proposed categorical exclusion A5 in the draft Directive 
was deleted in this final version. All subsequent categorical 
exclusions in the A section were renumbered, beginning with the 
current categorical exclusion A5, to reflect this deletion.
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    To address the concern that the analysis of impacts from waste 
disposal for permitted landfills may have been done in the past, but 
that may not account for new waste, DHS included

[[Page 16794]]

language in example (g) that limits this CATEX to apply to only 
activities of waste disposal in established, permitted landfills and 
authorized facilities; thereby, emphasizing that the Department is held 
to all of the same requirements that are applicable to commercial and 
other federal generators of non-hazardous waste.
    To address the concern that existing CATEXs from the Federal 
Emergency Management Agency and the United States Coast Guard were not 
appropriate to use as a basis for this CATEX, the following explanation 
is provided. During the development of these CATEX, the Panel found 
that various components of the Department, procure non-hazardous goods 
and services and store, recycle, and dispose of non-hazardous goods 
during the normal course of their activities in a manner like that of 
FEMA and the United States Coast Guard. Activities of a similar nature, 
scope, and intensity were found to be common throughout the Department 
in both administrative and operational activities. The vast majority of 
procurements, in conformance with procurement priorities, were found to 
consist of commercially available goods and services. A more limited 
number of procurements were for goods that were provided by commercial 
sources specifically for military (which could include the U.S. Coast 
Guard) or law enforcement purposes. Unique procurements were extremely 
infrequent and mostly adaptations of commercially available goods and 
services. It was also noted that other agencies have CATEX for similar 
activities that are sufficiently descriptive such that it could be 
determined that they included a much broader range of activities and 
encompassed activities of generally greater scope and intensity than 
any in DHS. In addition, all federal agencies, with very few 
limitations, must meet the same requirements to protect the 
environment. For example, the volume of goods and services procured and 
wastes disposed by other agencies dwarf those of DHS and are performed 
under the same regulatory policies with no significant impacts to the 
quality of the human environment.
    To address the concern that the public should not be limited in its 
ability to access information regarding the use of chemicals and low 
level radio nuclides for analytical testing and research, DHS modified 
Example (e) within this CATEX to further define ``analytical testing 
and research'' by clarifying that the intent for including examples of 
those types of non-hazardous materials would be ``for laboratory use'' 
and would thus be subject to the detailed requirements for the handling 
of such materials in established laboratories and similar facilities. 
Changes to Section 6 of the Directive, described elsewhere in this 
Notice, will also address this concern. Categorical Exclusion A7.\2\ 
When A7 was published in the draft Directive, it was the subject of 
comments concerning the availability of public information generally. 
The Department considered the comments regarding public information and 
these concerns are addressed in the Department's response to comments 
on section 6 of the Directive.
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    \2\ The proposed categorical exclusion A5 in the draft Directive 
was deleted in this final version. All subsequent categorical 
exclusions in the A section were subsequently renumbered to reflect 
this deletion.
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    Upon consideration of the scope of this CATEX, two other changes 
were made. A new limitation was added to state that ``If any of these 
commitments result in proposals for further action, those proposals 
must be covered by an appropriate CATEX'' to ensure that, if surveys or 
other actions contemplated under these CATEX result in recommendations 
for further action, those further actions will be appropriately 
evaluated under NEPA. Example (c) was modified and limited by removing 
the phrase ``Site characterization studies and environmental 
monitoring, including siting, construction, operation, and dismantling 
or closing of characterization and monitoring devices * * *'' from the 
descriptive examples to ensure that this CATEX was limited to audits, 
surveys, and data collection of a minimally intrusive nature. These 
additions and changes will better address the studies and other 
administrative activities contemplated by this CATEX. Categorical 
Exclusion B2. CATEX B2 was the subject of comments concerning the 
danger to the environment raised by access to observation posts. The 
chief concern expressed was regarding the risk that establishment of 
and access to observation posts might pose to the endangered Sonoran 
Pronghorn antelope. Specifically, one representative comment stated 
that ``* * * a well-established record overwhelmingly demonstrates that 
construction, use of, and access to such observation posts is clearly 
not appropriate for the [categorical exclusion].''
    The Department considered the comments and concluded that this 
CATEX does not encompass the development of new access roads or 
observation posts. To emphasize the Department's concern in this area, 
the Panel specifically limited the CATEX to, ``* * * existing roads or 
established jeep trails.'' In order to further stress the intent of the 
Department that this CATEX not be extended to areas where there is 
potential for significant impacts on the quality of the human 
environment, the language of this CATEX was modified to expressly limit 
the use of jeep trails to those established by a governmental authority 
which would have shared or primary responsibility for regulating the 
roads or trails.
    In addition, section 3.2 in Appendix A of the Directive contains a 
list of conditions and extraordinary circumstances that must be 
reviewed when applying this CATEX to a specific program or activity 
within DHS. These conditions and extraordinary circumstances were 
developed because, while the vast majority of DHS activities in this 
category do not have potential for significant impacts to the 
environment, activity proponents (Proponents) within DHS need to be 
alert for rare and unique conditions that may require more extensive 
evaluation of the potential for environmental impacts under NEPA. This 
evaluation would include not only the immediate effect of DHS decision, 
but also the potential environmental effects that may indirectly result 
from implementing the decision and the cumulative effects of the 
decision on the quality of the human environment. The Directive now 
contains language that clearly and explicitly prevents the use of the 
CATEX where there is ``A potentially significant effect on species or 
habitats protected by the Endangered Species Act, Marine Mammal 
Protection Act, Migratory Bird Treaty Act, or Magnuson-Stevens Fishery 
Conservation and Management Act.''
    Categorical Exclusion B4. This CATEX was the subject of comments 
regarding the reference to training on specialized equipment. 
Specifically, the comments stated that it should be limited to those 
activities that do not disturb the surface in any way and have no 
potential to disturb the environment. The Department considered the 
comments regarding the reference to training, noting that there existed 
redundant coverage of training with CATEX G1. The references to 
training activities and training activity examples have been deleted 
from this CATEX. Responses to comments on CATEX G1 further address the 
concern regarding the reference to training on specialized equipment.
    Categorical Exclusion B5. This CATEX was changed from the text 
published for public comment to clarify

[[Page 16795]]

that the phrase ``* * * Support for community participation projects * 
* *'' was intended to mean support for and participation in community 
projects. The Department is inherently dependent upon community 
involvement in providing the homeland security services required of it. 
The public is the key customer, beneficiary, and stakeholder for the 
products and services that the Department provides. It is essential 
that the Department engage in civic and community events that both 
serve the public and common good, as well as provide the Department 
with access to and credibility with its private sector customers. This 
change clarifies the nature of events and actions contemplated by this 
CATEX that may be undertaken for such purposes.
    This CATEX was also changed to limit the nature of activities 
contemplated by adding the phrase ``* * * that do not involve 
significant physical alteration of the environment * * *''. Although 
this aspect of this CATEX was not the subject of any public comments, 
it was determined that this limitation would serve to focus the 
activities undertaken by the Department and its components within this 
CATEX on those clearly lacking the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion B6. Although not the subject of any public 
comments, this CATEX for the approval of recreational or public 
activities or events at a location typically used for that type and 
scope of that activity was specifically limited to ensure that the 
activities contemplated under this CATEX would not involve significant 
physical alteration of the environment. This was done to emphasize that 
this CATEX is not to be applied if there is potential for significant 
environmental impact.
    Categorical Exclusion B8. CATEX B8 was the subject of comments 
regarding NEPA review of security equipment. Specifically, the comments 
generally stated that there are many security devices including x-rays 
and detection devices that include the use of dangerous chemical, 
biological, and radiological substances. The comments expressed the 
concern that the evaluation and disposal of these devices could pose an 
environmental risk.
    Security equipment used within the department must meet the 
appropriate requirements of the Nuclear Regulatory Commission (NRC), 
the Food and Drug Administration (FDA), or the Federal Communications 
Commission (FCC). In addition, most of the security equipment consists 
of commercially available products that are also in use by private 
industry and other government agencies.
    Some of the security equipment contains trace amounts of chemical 
or radiological substances or produce X-rays as part of the screening 
process. These chemical and radiological substances and X-rays are 
encapsulated, shielded, and secured within the interior of the 
equipment. All of the Department's security systems must meet federal 
requirements for allowable levels of radiation emissions. There are no 
biological substances in the security equipment. In addition, all 
components within the Department that use these types of equipment 
perform periodic radiation surveys or wipe tests of all X-ray producing 
equipment or equipment that contains a small radioactive source to 
ensure compliance with 21 CFR 1020.40, Cabinet X-ray Systems, and NRC 
licensing requirements. The systems are also surveyed and inspected 
whenever they are relocated or maintenance is performed on the X-ray 
components and shielding.
    Disposal of security equipment is consistent with Federal Property 
Management Regulations found at 41 CFR 101 and 102. Furthermore, DHS is 
also required to minimize disposal through maximum reutilization and 
specialized sales, and will ensure that maximum attainable recycling 
and recovery are achieved in accordance with the Resource Conservation 
and Recovery Act (RCRA), 42 U.S.C. 6901-6992, and participation in the 
Department of Energy's Homeland Defense Equipment Reutilization (HDER) 
Program.
    DHS has an agreement with DOE to refurbish, calibrate, and issue 
radiological detection equipment to local jurisdictions that request to 
participate in the HDER Program. No radioactive test sources are issued 
to local jurisdictions with this equipment, thereby limiting the 
potential for any radiological contamination. If DOE determines that 
equipment is not fit to refurbish, DOE is responsible for the 
equipment's disposition.
    This CATEX was changed to further demonstrate that the Department 
must contemplate applicable requirements to protect the environment 
when determining whether the removal or disposal of security equipment 
to screen for or detect dangerous or illegal individuals or materials 
would have the potential to significantly impact the quality of the 
human environment.
    Categorical Exclusion B9. CATEX B9 was the subject of comments 
regarding the temporary use of barriers and jersey walls. Specifically, 
comments sought clarification of the term ``temporary.'' ``Temporary,'' 
as contemplated in this CATEX, means that the barrier is easily 
installed with no need to disturb soils or the surrounding areas, and 
that it can be easily removed or moved to another area. Additional 
comments indicated that ``temporary'' should be limited to a term of 
time, with a time period of a week or less. Comments on CATEX B9 also 
included concerns regarding: (1) The inclusion of diver/swimmer devices 
that could harm marine species and habitat, (2) the evaluation of 
blast/shock impact resistant systems in manners that could pose a risk 
to migratory birds, endangered species, and air quality, and (3) the 
reference to remote video surveillance systems that could cause 
significant surface disturbance.
    The Department does not deem ``temporary'' regarding the use of 
barriers, fences, and jersey walls to mean one week or less. The term 
temporary is used by the Department to refer to structures that are not 
permanent and that, depending upon mission concerns, are eventually 
removed. The Department views the reference to the temporary use of 
barriers, fences, and jersey walls as sufficiently narrow in that only 
barriers, fences, and jersey walls on or adjacent to existing 
facilities are included in B9. A barrier, fence or jersey wall attached 
to, or set adjacent to, an existing facility will not normally have an 
adverse effect on the natural environment since the construction and 
location of the barrier will normally take place on land that has 
already been disturbed or built upon; consequently, the text has been 
clarified by adding ``or on land that has already been disturbed or 
built upon''. In addition, this CATEX has been modified to emphasize 
that removal and disposal must be in compliance with applicable 
requirements to protect the environment.
    In response to the concern that activities and examples under this 
CATEX may adversely impact the environment, the Department notes that 
section 3.2 in Appendix A of the Directive contains a list of 
conditions and extraordinary circumstances that were developed in 
recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. This evaluation would include not only the immediate effect of 
DHS decision, but also the potential environmental effects that may 
indirectly result from implementing the decision and the cumulative 
effects of the decision on the quality of the human environment. These 
extraordinary circumstances are

[[Page 16796]]

established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    This CATEX was changed to further demonstrate that the Department 
must contemplate applicable requirements to protect the environment 
when determining whether the removal or disposal of physical security 
devices or controls to enhance the physical security of existing 
critical assets would have the potential to significantly impact the 
quality of the human environment.
    Finally, the phrase, ``* * * for land based and waterfront 
facilities,'' was added to qualify, ``* * * blast/shock impact-
resistant systems,'' within the list of devices and controls to limit 
and clarify the intent of the CATEX.
    Categorical Exclusion B11.\3\ This CATEX was the subject of 
comments regarding the impact of routine monitoring patrols. 
Specifically, the comment indicated concern that routine monitoring 
patrols can have an impact on the environment depending on the 
intensity and number of persons involved in the patrols. The comment 
argued that this concern is particularly important in the case of 
patrols occurring in sensitive areas such as wilderness areas that may 
be habitat to endangered species.
---------------------------------------------------------------------------

    \3\ The proposed categorical exclusion B10 in the draft 
Directive was deleted in this final version. All subsequent 
categorical exclusions in the B section were renumbered, beginning 
with the current categorical exclusion B10, to reflect this 
deletion.
---------------------------------------------------------------------------

    The Department considered the concerns associated with this comment 
and noted that due to their generally more remote and undeveloped 
state, protected wilderness areas, national wildlife refuges, national 
forests, national monuments, marine sanctuaries, or critical habitat 
for marine mammals or endangered species tend to attract illegal 
entrants, smugglers, and potential terrorists who are seeking to avoid 
detection. The volume and frequency of this illegal activity in these 
environmentally sensitive areas results in harm to the natural 
resources that these areas have been set aside to protect. The patrols 
contemplated by this CATEX could serve as a deterrent to individuals 
who might otherwise harm sensitive natural resources. In any case, this 
CATEX could not be used for patrol activities that may be associated 
with extraordinary circumstances.
    DHS considered the concern that routine monitoring patrols under 
this CATEX may have a significant effect on the environment, in 
particular wilderness areas and critical habitat for endangered 
species. Section 3.2 in Appendix A of the Directive contains a list of 
conditions and extraordinary circumstances that were developed in 
recognition that activity proponents need to be alert for rare and 
unique conditions associated with routine monitoring patrols that may 
require more extensive evaluation of the potential for environmental 
impacts under NEPA. This evaluation would include not only the 
immediate effect of the DHS decision, but also the potential 
environmental effects that may indirectly result from implementing the 
decision and the cumulative effects of the decision on the quality of 
the human environment. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion D1. This CATEX was the subject of comments 
regarding the term, ``minor renovations and additions.'' Specifically, 
the comment expressed the concern that activities taking place outside 
of a building may have impacts on sensitive coastal resources that may 
be adjacent to a project. The comment expressed the desire that the 
categorical exclusion be limited to projects that are not located near 
such resources.
    DHS considered this concern regarding the potential for sensitive 
coastal resources adjacent to a project. Section 3.2 in Appendix A of 
the Directive contains a list of conditions and extraordinary 
circumstances that were developed in recognition that Proponents need 
to be alert for rare and unique conditions in the application of this 
CATEX that may require more extensive evaluation of the potential for 
environmental impacts under NEPA; more specifically, subparagraph (4) 
of section 3.2 states that DHS Proponents need to be alert for a 
potentially significant effect on an environmentally sensitive area. An 
environmentally sensitive area is defined in the Glossary to include 
coastal zones and other important natural resources that may be present 
in coastal areas. This evaluation would include not only the immediate 
effect of the Department's decision, but also the potential 
environmental effects that may indirectly result from implementing the 
decision and the cumulative effects of the decision on the quality of 
the human environment. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    This CATEX was changed in that the example, ``* * *extending an 
existing roadway in a developed area a short distance,'' was deleted to 
ensure that its application would not extend to DHS activities that 
would have the potential to significantly impact the quality of the 
human environment.
    Categorical Exclusion D3. This CATEX was the subject of comments 
regarding: (1) pest control activities, and (2) the impact of repair 
and maintenance activities on sensitive coastal areas. The comment 
focusing on pest control activities expressed concern that there exists 
the need for restrictions on pest control activities to avoid the 
potential for a significant impact on endangered species, groundwater, 
and public health.
    DHS considered the concern with pest control activities and notes 
that the reference to pest control was only an example of the type of 
activity envisioned by the CATEX. In providing examples, the Department 
does not seek to extend the CATEX to actions including extraordinary 
circumstances that may result in the activity having significant 
environmental effects. However, in response to these comments, the 
wording of this CATEX was narrowed to clarify its application to 
Department-managed properties. Pest control activities that may be 
conducted at Department-managed properties would be incidental to the 
management of the facility for mission requirements. DHS does not have 
a natural resources management mission that may require the general 
eradication of pests. Typical pest control activities would consist of 
but not necessarily be limited to those actions necessary to meet 
health requirements in and around cafeterias and residential 
facilities, actions to maintain the integrity of structures, or the 
Department's participation as one of many other property managers in 
larger pest control programs run by other Federal or state agencies.
    DHS also considered the comment concerning the impact of repair and 
maintenance activities on sensitive coastal areas. Section 3.2 in 
Appendix A of the Directive contains a list of conditions and 
extraordinary circumstances that were developed in recognition that 
Proponents need to be alert for rare and unique conditions in the 
application of this CATEX that may require more extensive evaluation of 
the potential for environmental impacts under NEPA; more specifically, 
subparagraph (4) of section 3.2 states that DHS Proponents need to be 
alert for a potentially significant effect on an environmentally 
sensitive area. An environmentally sensitive area is

[[Page 16797]]

defined in the Glossary to include coastal zones and other important 
natural resources that may be present in coastal areas. This evaluation 
would include not only the immediate effect of the Department's 
decision, but also the potential environmental effects that may 
indirectly result from implementing the decision and the cumulative 
effects of the decision on the quality of the human environment. These 
extraordinary circumstances are established as criteria to ensure that 
this CATEX would not be applied to any activity that would have the 
potential to significantly impact the quality of the human environment.
    Categorical Exclusion D5. This CATEX was the subject of comments 
regarding dredging. Specifically, several comments suggested that 
dredging activities can have a significant effect on marine and 
riparian habitats, effecting endangered species, critical habitat, 
water flow, flooding, waste management, and a host of other 
environmental concerns. Additionally, some commenters suggested 
limiting this categorical exclusion to the United States Coast Guard.
    The Department notes that its components do not generally have 
independent authority to conduct maintenance dredging without complying 
with the many laws and requirements established to protect the 
environment. This exclusion from further environmental analysis under 
NEPA is adequately limited by the need to secure applicable permits and 
any required approval for a disposal site. In the process of securing 
these permits, agencies such as the Army Corps of Engineers and the 
Environmental Protection Agency, as well as various state agencies, 
would perform independent environmental reviews of proposed DHS 
maintenance dredging activities. It is also noted that the U.S. Coast 
Guard maintenance dredging operations, which are the greatest in scope 
and intensity of any of these types of activities within DHS, have been 
conducted for many years without significant impact to the human 
environment.
    DHS considered this concern regarding the potential for dredging 
activities to have a significant effect on various environmental 
resources. Section 3.2 in Appendix A of the Directive contains a list 
of conditions and extraordinary circumstances that were developed in 
recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. More specifically, these conditions and extraordinary 
circumstances include consideration of the potential for significant 
effects on marine and riparian habitats, endangered species, critical 
habitat, water flow, flooding, waste management, and various other 
environmental concerns. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion E1. CATEX E1 was the subject of a comment 
regarding facilities that cross tidal, coastal, or navigable waters. 
Specifically, the comment suggested that the activities contemplated by 
this categorical exclusion are not of concern in upland areas; however, 
if any of the facilities cross tidal, coastal, or navigable waters 
there is the potential for environmental impacts.
    The Department considered this comment and notes that its elements 
do not have independent authority to conduct activities without 
complying with the many laws and requirements established to protect 
the environment. This exclusion from further environmental analysis 
under NEPA is adequately limited by the need to secure applicable 
permits and any required approvals from the appropriate federal, state, 
and local regulatory agencies.
    However, section 3.2 in Appendix A of the Directive contains a list 
of conditions and extraordinary circumstances that were developed in 
recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. More specifically, Appendix A, section 3.2, subparagraph (4) 
states that DHS Proponents need to be alert for a potentially 
significant effect on an environmentally sensitive area. An 
environmentally sensitive area is defined in the Glossary to include 
coastal zones, tidal, coastal, or navigable waters, and other important 
natural resources that may be present in coastal areas. An evaluation 
of these extraordinary circumstances would include not only the 
immediate effect of the Department's decision, but also the potential 
environmental effects that may indirectly result from implementing that 
decision and the cumulative effects of the decision on the quality of 
the human environment.
    Categorical Exclusion E2. CATEX E2 was the subject of comments 
expressing concern regarding the precise definition of, ``developed 
area'' or ``previously disturbed site'' which appear in paragraph (b), 
and the potential for this categorical exclusion serving as a loophole 
permitting an infinite amount of construction.
    The Department considered the comment regarding the definitions of 
``developed area'' or ``previously disturbed site.'' The comment 
specifically addressed wetland resources, stating that it was 
reasonable to believe that wetlands capable of restoration might be 
considered ``disturbed areas.'' The comment explains by way of example 
that any such disturbance of a wetland in a particular state that was 
not related to restoration would possibly be inconsistent with the 
enforceable policies of the federally-approved Coastal Management 
Program within that state. In response to that concern, the Department 
modified the text by replacing the phrase, ``* * * local planning and 
zoning standards,'' with the phrase, ``* * * Federal, State, tribal, 
and local planning and zoning standards and consistent with federally 
approved state coastal management programs'' as a condition precedent 
to any action taken under this CATEX.
    The Department also considered the concern that this CATEX might be 
read to permit an infinite amount of construction as long as it could 
be artfully tailored to meet or to allegedly meet the specified 
criterion. In response, the Department makes reference to section 3.2 
in Appendix A of the Directive which contains a list of conditions and 
extraordinary circumstances that must be reviewed in the application of 
this CATEX to a specific program or activity within the Department. 
These conditions and extraordinary circumstances were developed in 
recognition that, while the vast majority of the Department activities 
in this category do not have potential for significant impacts to the 
environment, activity Proponents within the Department need to be alert 
for rare and unique conditions that may require more extensive 
evaluation of the potential for environmental impacts under NEPA. This 
evaluation would include not only the immediate effect of the 
Department's decision, but also the potential environmental effects 
that may indirectly result from implementing the decision and the 
cumulative effects of the decision on the quality of the human 
environment.
    Categorical Exclusion E4. CATEX E4 was the subject of comments 
expressing concern regarding the destruction or disruption of adjacent 
habitat during demolition activities. The Department considered the 
comment regarding potentially significant impacts on

[[Page 16798]]

habitat areas adjacent to demolition activities. The comment 
specifically expressed a concern that the categorical exclusion needs 
to make provisions to prevent the destruction or disruption of adjacent 
habitat during demolition activities. The comment asserts that while 
activities may be otherwise in compliance with regulations compliance 
does not ensure that projects will cease when they have a significant 
effect on the environment.
    In response to the concern that activities under this CATEX may 
adversely impact adjacent habitat or may otherwise have a significant 
effect on the environment, the Department notes that section 3.2 in 
Appendix A of the Directive contains a list of conditions and 
extraordinary circumstances that were developed in recognition that 
activity Proponents need to be alert for rare and unique conditions in 
the application of this CATEX that may require more extensive 
evaluation of the potential for environmental impacts under NEPA. This 
evaluation would include not only the immediate effect of the DHS 
decision, but also the potential environmental effects that may 
indirectly result from implementing the decision and the cumulative 
effects of the decision on the quality of the human environment. These 
extraordinary circumstances are established as criteria to ensure that 
this CATEX would not be applied to any activity that would have the 
potential to significantly impact the quality of the human environment.
    Categorical Exclusion E5. CATEX E5 was the subject of comments 
expressing concern regarding actions that might cause imbalance to a 
stable ecosystem. The comment specifically addressed the concern that 
natural resource management activities might actually imbalance natural 
ecological functions and cause further environmental problems. The 
comment stated that restoration often causes short-term adverse effects 
in order to gain long-term beneficial effects and asserts that NEPA 
analysis is necessary to balance these competing effects in different 
timeframes.
    In response to these comments, the Department modified the text 
published for public comment by replacing the phrase, ``* * * to 
enhance native flora and fauna,'' with the phrase, ``* * * to aid in 
the maintenance or restoration of native flora and fauna,'' and added 
the limiting term, ``* * * and control of non-indigenous species'' as a 
natural resource management activity category within this CATEX. The 
Department also clarified the scope of this CATEX by adding the 
limiting term, ``* * * on Department managed property,'' to clarify 
that this CATEX is limited to property under the control of the 
Department. DHS made these changes to clarify that DHS is not a large 
land managing agency and the scope of activities contemplated would not 
encompass large scale land management activities, but would be limited 
to those properties where DHS had direct management responsibilities.
    In response to the concern that activities under this CATEX, such 
as restoration, may cause short-term adverse effects in order to gain 
long-term beneficial effects, procedures in the Directive require 
consideration of extraordinary circumstances when this CATEX would be 
applied to a specific action. Section 3.2 in Appendix A of the 
Directive contains a list of conditions and extraordinary circumstances 
that were developed in recognition that activity proponents need to be 
alert for rare and unique conditions in the application of this CATEX 
that may require more extensive evaluation of the potential for 
environmental impacts under NEPA. This evaluation would include not 
only the immediate effect of the DHS decision, but also the potential 
environmental effects that may indirectly result from implementing the 
decision and the cumulative effects of the decision on the quality of 
the human environment. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion E6. The Department received numerous comments 
to this CATEX asserting that the proposed categorical exclusion should 
be clearly limited to roads that would not cause new surface 
disturbance. The comments noted that road construction can have 
significant impact on the environment by increasing erosion, 
contaminated runoff, and fragmenting wildlife habitat. The comments 
suggest that the reference to ``previously disturbed areas'' needs 
clarification.
    In response to the comments, this CATEX was significantly revised 
and narrowed in scope. The comments submitted for this categorical 
exclusion noted that the important criterion to determine the potential 
for significant environmental impact was not the extent of prior 
disturbance, but rather the degree of environmental sensitivity. The 
Department recognizes that new road construction is highly 
controversial, and accordingly modified this CATEX by limiting the term 
``* * * construction or reconstruction,'' to read, ``* * * 
reconstruction.''
    Furthermore, Section 3.2 in Appendix A of the Directive, contains a 
list of conditions and extraordinary circumstances that were developed 
in recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. In particular, the extraordinary circumstances would require the 
need to be alert for a potentially significant effect on an 
environmentally sensitive area in the application of this CATEX. These 
extraordinary circumstances are established as criteria to ensure that 
this CATEX would not be applied to any activity that would have the 
potential to significantly impact the quality of the human environment.
    Categorical Exclusion E7. The Department received a general comment 
regarding this and several other CATEXs that essentially asserted that 
the Department maintained a relaxed threshold for what constitutes 
information that has no significant effect on the human environment. 
The comment referenced this categorical exclusion concerning 
construction of trails as an example of that relaxed threshold.
    In response to these comments, the Department first makes reference 
to the specific limitation in the CATEX which limits its application to 
construction of trails in non-environmentally sensitive areas where 
run-off, erosion, and sedimentation during construction are capable of 
mitigation through implementation of Best Management Practices. 
Furthermore, the Department references Section 3.2 in Appendix A of the 
Directive, containing a list of conditions and extraordinary 
circumstances that were developed in recognition that Proponents need 
to be alert for rare and unique conditions in the application of this 
CATEX that may require more extensive evaluation of the potential for 
environmental impacts under NEPA. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion E9. CATEX E9 was deleted as redundant in that 
all of its contemplated activities were included in other proposed, and 
now finalized, CATEXs. Wells for drinking water, sampling wells, and 
watering landscaping are included in E2 or E3. Septic systems are not 
built independent from other facilities and

[[Page 16799]]

are therefore included in the activities described in E2, D3, or D4. 
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, and ambient air monitoring equipment are 
included in E3.
    Categorical Exclusion F1. This CATEX was clarified to more 
accurately define its intent. It is more accurate to limit the actions 
contemplated to those applicable to hazardous materials and the 
relevant requirements and to provide a separate CATEX for actions 
related to the handling and disposal of hazardous waste. In order to 
ensure that this CATEX was sufficiently limited in that fashion without 
expanding or modifying its intended scope, the CATEX published for 
notice and comment as F1 has been limited by defining it as 
``Categorical exclusion F1: Routine procurement, transportation, 
distribution, use, and storage of hazardous materials that comply with 
all applicable requirements, such as Occupational Safety and Health Act 
(OSHA) and National Fire Protection Association (NFPA) requirements.
    The Department received a comment on CATEX F1 that was related 
primarily to hazardous waste disposal as opposed to hazardous materials 
usage. That comment will be addressed in CATEX F2.
    Categorical Exclusion F2. The Department received a comment on the 
CATEX originally published as F1, asserting that no standard exists by 
which to measure the routine use of hazardous materials/waste. 
Specifically, the comment stated that absent a deeper explanation of 
the activities being excluded, this categorical exclusion could easily 
become a rubber stamp to nearly all agency activities with hazardous 
waste. The comment expressed the additional concern that a categorical 
exclusion for these activities could mask the cumulative effects of 
routine hazardous waste use at agency facilities.
    DHS considered this comment and separated hazardous waste handling 
and disposal into CATEX F2 with specific limitations to assure 
compliance with appropriate hazardous waste handling and disposal 
requirements.
    In response to the concern over cumulative effects, section 3.2 in 
Appendix A of the Directive contains a list of conditions and 
extraordinary circumstances that were developed in recognition that 
Proponents need to be alert for rare and unique conditions in the 
application of this CATEX that may require more extensive evaluation of 
the potential for environmental impacts under NEPA. In particular, this 
evaluation would include not only the immediate effect of the 
Department's decision, but also the potential environmental effects 
that may indirectly result from implementing the decision and the 
potential cumulative effects of the decision on the quality of the 
human environment. These extraordinary circumstances are established as 
criteria to ensure that this CATEX would not be applied to any activity 
that would have the potential to significantly impact the quality of 
the human environment.
    Categorical Exclusion F3. The Department received a comment 
asserting that the former categorical exclusion F3 should be deleted 
because it excludes detection and scanning devices that, in sufficient 
numbers or with sufficient radiological effects, could pose a 
significant threat to the environment and public health. The Department 
also received a comment asserting that the former categorical exclusion 
F2 was too broad since it does not provide for an exception for devices 
with a significant amount of hazardous or radiological risk and/or 
waste, nor does it set a limit for the cumulative use of such devices.
    The Department considered these comments and realized that 
clarification was required. In addition, further review found that the 
former CATEX F2 and F3 language referencing the use of instruments that 
contain hazardous, radioactive, and radiological materials and the 
examples provided was somewhat redundant. Consequently, the CATEX that 
was originally published as CATEX F2 has been combined with the CATEX 
that was originally published as CATEX F3 and additional limiting 
language has been added to ensure that DHS activities contemplated by 
this CATEX meet all manufacturer specifications, as well as comply with 
all requirements to protect the environment. It is important to note 
that DHS meets all safety parameters for radiological devices as 
provided within the NRC license for those devices. In addition, DHS 
takes extra precautions with these devices, when installed, to ensure 
that these devices are separated by distance from each other, the 
operator, and the owners of the property being examined in conformance 
with the NRC license and to avoid potential for threats to the 
environment and public health. Furthermore, DHS does not accumulate 
these types of equipment in central storage, maintenance, or 
distribution facilities. No evidence of cumulative effects has been 
demonstrated from DHS uses of these types of equipment.
    Categorical Exclusion G1. Commenters agree with the language 
proposed that limited the application of this CATEX to training 
exercises using live chemical, biological, and radiological agents to 
designated facilities, but contend that this does not go far enough. 
Regardless of the facility, they believe the use of live agents cannot 
be said to inherently have no potential for significant environmental 
impacts. At a minimum, such activities should require a review of 
extraordinary circumstances and the preparation of a Record of 
Environmental Consideration.
    DHS, in consultation with the Council on Environmental Quality, 
considered the comments regarding the potential effects of training 
activities with live agents. The language of this CATEX has been 
modified to clarify that it does not apply to training that involves 
use of live chemical, biological, or radiological agents except when 
the training is conducted at a location designed and constructed to 
contain such materials. Construction and operation of these types of 
facilities remains subject to review under NEPA.
    Categorical Exclusion G2. One commenter believed that references to 
``conducting'' national, state, local, or international training 
exercises should be deleted. While design and development for readiness 
exercises may not significantly impact the environment, actually 
conducting them may and the current language of ``projects'' or 
``activities * * * to * * * conduct * * *'' could be interpreted as 
including the actual operation of the exercise. The commenter stated 
that the existing Federal Aviation Administration CATEX allowing for 
planning grants does not support an exemption for conducting readiness 
activities, nor does the Army CATEX for emergency or disaster 
assistance provide for the proposed CATEX. The commenter also stated 
that perhaps the intent was not to cover the actual exercises 
themselves; rather, the documents providing for them; however, this is 
not what the language provides.
    DHS considered the comments regarding the potential for significant 
environmental impact from the conduct of national, state, local, or 
international training exercises and offers the following additional 
explanation in response. Disaster contingency planning and training 
exercises have been conducted by a variety of federal agencies for many 
years with no significant environmental impact. The

[[Page 16800]]

Office of Domestic Preparedness (ODP), formerly in the Department of 
Justice and now merged into DHS, has conducted terrorist attack 
response exercises since 1997. The Federal Emergency Management Agency 
(FEMA), which was merged into DHS Emergency Preparedness and Response 
Directorate, has also conducted these types of training exercises for 
many years to train for response to natural disasters. No evidence of 
significant environmental impact has been demonstrated from the conduct 
of these exercises by ODP or FEMA.
    DHS provides direct support, technical assistance, and funding to 
plan, conduct, and evaluate training exercises based on natural 
disasters, accidents, and chemical, biological, radiological, nuclear, 
or explosive terrorism. Exercises take place in communities around the 
nation and involve members from several response disciplines. Realistic 
training scenarios that involve local, state, and federal agencies are 
necessary to simulate actual conditions and hone the skills first 
responders will need in the event of a disaster, whether from terrorist 
attack or other natural or manmade causes. Full-scale exercises (FSEs) 
are the largest and most complex of these training activities and are 
purposefully planned with the participation of the other relevant 
governments and response organizations to provide as realistic a 
scenario as possible without making unacceptable demands on available 
emergency response resources or unacceptable impacts on the communities 
or the environments where they occur. In particular, FSE activities 
contemplated in the development of this CATEX are normally conducted in 
venues such as sports stadia, fairgrounds, ports, or other sites where 
large-scale activities normally take place.
    Pursuant to the language of the proposed CATEX, training exercises 
are required to be conducted ``* * * in accordance with existing 
facility or land use designations.'' This means that the entire 
exercise, including airborne emissions, waterborne effluents, outdoor 
noise, and solid and bulk waste disposal practices, must comply with 
existing applicable federal, state and local laws and regulations. The 
CATEX on its face does not apply to ``* * * exercises that involve the 
use of chemical, biological, radiological, nuclear, or explosive 
agents/devices * * *'' that potentially could have an adverse 
environmental impact.
    Categorical Exclusion H2. The former CATEX published as H2 for 
``Issuance of grants for the conduct of security-related research and 
development or the implementation of security plans or other measures 
at existing facilities'' has been deleted, since it was found to be 
redundant with the laboratory operations in B1 and the physical 
security activities in B9. The former CATEX H3 for ``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'' was found to include 
activities that were redundant with the activities described in CATEX 
A3.
    Categorical Exclusion I1. The commenter suggested edits to ensure 
that the use of a portable or relocatable facility does not impact 
sensitive resources that may be near the facility. DHS accepted this 
comment and made the recommended changes, as well as other grammatical 
changes.
    Categorical Exclusions J2 and J3 (published in the draft Directive 
as categorical exclusions B13 and B14, respectively). Comments stated 
that Categorical Exclusion B13 created an incentive for logging by 
allowing commercial thinning of forests. Comments expressed concern 
that there were no stated requirements for agencies to cite a purpose 
for their logging activities such as to remove trees threatening 
essential DHS facilities or blocking construction of the same. Comments 
expressed concern that Categorical Exclusion B13 opened up the ability 
of an agency to allow multiple, 70-acre areas to be cumulatively cut in 
environmentally sensitive habitat. Comments requested explanation of 
how many projects will be covered under Categorical Exclusion B13, how 
many acres will be affected, how many board feet will be harvested, and 
what type of trees will be affected. Comments also expressed concern 
that Categorical Exclusion B13 may be used in a manner that would not 
consider impacts to cultural heritage areas. Comments stated that, 
while Categorical Exclusion B13 may be appropriate for certain agencies 
within DHS, such as the Federal Law Enforcement Training Center, it 
should not be a Department-wide categorical exclusion.
    Regarding Categorical Exclusion B14, comments expressed concern 
that it lacked requirements for agencies to provide a purpose for the 
salvage of dead or dying trees, such as a requirement to remove dead 
trees threatening essential DHS facilities or blocking construction of 
the same. The comments also expressed concern that Categorical 
Exclusion B14 would provide DHS with the opportunity to allow multiple, 
250-acre areas to be cumulatively harvested in environmentally 
sensitive habitat. Comments also expressed concern over consideration 
of impacts to cultural heritage areas. Comments requested some 
explanation of how many projects will be covered under Categorical 
Exclusion B14, how many acres will be affected, how many board feet 
will be harvested, or what type of trees will be affected.
    DHS considered these comments and noted several similarities 
regarding the potential for environmental impact from the activities 
contemplated in these CATEXs. Upon review of the comments and the 
administrative record, DHS determined that Department-wide Categorical 
Exclusions for these activities were not necessary. Therefore, both of 
these CATEXs have been limited in application to the Federal Law 
Enforcement Training Center (FLETC).
    Activities conducted under these CATEX would be performed for 
operational, safety, or natural resources management purposes on FLETC 
property. Examples of the situations where these CATEXs may be used 
include, but would not be limited to, situations where trees that are 
damaged by storms or disease or may be dead or dying would threaten the 
operation of FLETC facilities, situations where forest management is 
needed to encourage the return of native forest species or to promote 
forest health, or where control of fuel load is needed to protect 
residential or commercial property immediately adjacent to FLETC 
property. In all cases, FLETC property managers would be expected to 
employ forest management practices as defined by the Society of 
American Foresters.
    In addition, a commercial timber harvest program would not conform 
to the mission of DHS and DHS does not manage sufficient land area to 
sustain such a program. Consequently, there are no existing programs in 
DHS to encourage any type of commercial forest use nor are any expected 
to be established.
    Categorical Exclusion K1. The commenters expressed concerns about 
the use of this CATEX in sensitive habitats. They stated that limited 
monitoring conducted by wildlife and land management agencies suggests 
that there are systematic and on-going environmental abuses and 
degradation caused by the Border Patrol during road dragging 
activities. Specifically, these one-lane roads, according to the 
commenters, quickly become two and three lanes in addition to the off-
road driving on the shoulder done to read foot prints in the sand. The 
commenters

[[Page 16801]]

stated that much of the dragging takes place in important habitat for 
several endangered species. In addition, the commenter asserted that 
since ``trails'' are by definition limited to foot traffic, road 
dragging should not be permitted on trails.
    DHS considered these comments regarding the potential for 
environmental impact from the activities contemplated in this CATEX. In 
response to this comment, Customs and Border Protection believes that 
it will provide adequate protection for the environment by limiting 
this CATEX to road dragging that will not expand the width, length, or 
footprint of the road or trail. Drag roads are roads and soft shoulders 
that are purposefully made to be wide and are groomed daily for 
evidence of the foot traffic from illegal entrants or smugglers. Many 
of these roads have been actively maintained in this fashion since the 
predecessor to the current Office of the Border Patrol was established 
in 1936. This CATEX covers previously groomed and maintained roads and 
trails and does not cover the creation of new drag roads; minor edits 
have clarified that the purpose is for maintaining rather than creating 
roads and trails. New drag roads would go through the same 
environmental review that any new road development would require. Care 
is taken by the Border Patrol agents to minimize impact to wildlife 
assets in the normal course of their duties to defend the border areas 
of the Nation.

Michael Chertoff,
Secretary of Homeland Security.

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 or the Department) 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. This Directive establishes procedures that DHS will use to 
comply with the National Environmental Policy Act of 1969 (NEPA) (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 
practicable means within their authority and consistent with other 
essential considerations of national policy, 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 DHS to follow the letter 
and spirit of NEPA and comply fully with CEQ regulations. This 
Directive adopts and supplements CEQ regulations, and is to be used in 
conjunction with them. This Directive encompasses other requirements 
and establishes the DHS Environmental Planning Program.

2. Scope

    A. Substantive or procedural requirements in this Directive apply 
to DHS components as described herein and are to be used in program 
planning and project development. This Directive applies to any 
discretionary 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 of Major Federal Actions. 
More specifically, this Directive applies to:

1. 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 CEQ regulation for implementing NEPA. 
In the case of any apparent discrepancies between these procedures and 
the mandatory provisions of CEQ regulations, CEQ regulations will 
govern.

3. Authorities

    This Directive is governed by numerous Public Laws, Regulations, 
and Executive Orders, including, but not limited to:
A. Clean Air Act (16 U.S.C. 470 et seq.)
B. Coastal Zone Management Act (16 U.S.C. 1451 et seq.)
C. Endangered Species Act (16 U.S.C. 1531 et seq.)
D. Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 
4321-4335)
E. Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.)
F. Marine Mammal Protection Act (16 U.S.C. 1361 et seq.)
G. Migratory Bird Treaty Act (16 U.S.C. 703-712)
H. National Environmental Policy Act (42 U.S.C. 4321 et seq.)
I. National Historic Preservation Act (16 U.S.C. 470 et seq.)
J. National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.)
K. Title 40 of the Code of Federal Regulations Parts 1500-1508
L. Executive Order 11514, Protection and Enhancement of Environmental 
Quality, dated March 5, 1970, as amended by Executive Order 11991, 
dated May 24, 1977.
M. Executive Order 11988, Floodplain Management, dated May 24, 1977.
N. Executive Order 11990, Protection of Wetlands, dated May 24, 1977.
O. Executive Order 12114, Environmental Effects Abroad of Major Federal 
Actions, dated January 4, 1979.
P. Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, dated 
February 11, 1994.
Q. Executive Order 13101, Greening the Government through Waste 
Prevention, Recycling, and Federal Acquisition, dated September 14, 
1998.
R. Executive Order 13123, Greening the Government through Efficient 
Energy Management, dated June 3, 1999.
S. Executive Order 13148, Greening the Government through Leadership in 
Environmental Management, dated April 21, 2000.
T. Executive Order 13149, Greening the Government through Federal Fleet 
and Transportation Efficiency, dated April 21, 2000.

4. Definitions

    A. All definitions of words and phrases in 40 CFR Part 1508 apply 
to this Directive.
    B. A glossary of words and phrases as used in this Directive is 
included in Appendix A.

5. Responsibilities

    Responsibility for oversight of 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 DHS missions and activities and exercises the 
ultimate responsibility in the Department to fulfill environmental 
planning

[[Page 16802]]

requirements. To this end, the Secretary delegates specific authority 
for environmental planning to the heads of the Directorates, service 
chiefs, and other direct reports. The Secretary delegates to the Under 
Secretary for Management, as the Departmental Environmental Executive, 
the authority to establish an Environmental Planning Program and to 
ensure that environmental planning requirements are functionally 
integrated into DHS missions. The following objectives are to be used 
in guiding environmental planning activities in DHS:

1. Timely and effective support
2. Sustainable capability
3. Consistency with national security, fiscal responsibility, and other 
considerations of national policy
4. Full compliance with all appropriate environmental laws, Executive 
Orders, regulations, and other requirements, such as environmental 
management systems (EMS).

    B. The DHS Department Environmental Executive (DEE) is the Under 
Secretary for Management and has authority to fulfill the Secretary's 
objectives by ensuring that the Department fully integrates 
environmental planning requirements into all DHS missions and 
activities. 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 Environmental Programs, and to 
other DHS officials as set forth in this Directive. In exercising the 
authority delegated from the Secretary, the DEE will:
    1. Ensure that Under Secretaries and Designated DHS Officials 
incorporate environmental planning and stewardship requirements into 
their mission requirements to fulfill the Secretary's objectives, the 
requirements of NEPA, 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 efforts to promote good management practice by 
ensuring that environmental planning requirements are functionally 
integrated into all of DHS missions and activities. To this end, the 
CAS has delegated authority to establish a reliable and cost effective 
environmental planning program to the Director, Office of Safety and 
Environmental Programs. In exercising this authority, the CAS will:
    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 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 DHS components with particular emphasis on highly 
sensitive programs or actions that may require the attention of the 
senior executive levels of the Department.
    6. Coordinate requests for environmental planning related 
information received at the Departmental level among appropriate DHS 
components or assign the request to the appropriate components for 
resolution.
    7. Approve new or revised administrative procedures proposed by DHS 
components, including the delegation of authority to sign environmental 
documents pursuant to the recommendations of the Director, Office of 
Safety and Environmental Programs. Coast Guard, Federal Emergency 
Management Agency, and Customs and Border Protection, are delegated 
this authority when this directive goes into effect.
    8. Revoke, as appropriate, delegations of authority to a DHS Under 
Secretary or Designated Official.
    D. The Director, Office of Safety and Environmental Programs 
(DOSEP) is designated by the Secretary as DHS Environmental Planning 
Program Manager and is responsible for establishing and directing the 
Department's environmental planning program, and ensuring its 
functional integration into DHS missions. The DOSEP 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:
    1. Advise the CAS, as needed, on all environmental planning matters 
in the Department.
    2. Develop, as needed, policy, guidance, or training to enable the 
reliable, timely, and cost 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. Direct, as needed, the performance of environmental planning 
activities within DHS components, with particular emphasis on 
headquarters level programs or actions and those that have the interest 
of the CAS.
    5. Coordinate and respond to requests for environmental planning 
related information received at the Departmental level among 
appropriate DHS components or assign the request to the appropriate 
Directorate for resolution.
    6. Review environmental documents, public notices, and other 
related external communications that require a Departmental-level 
approval prior to release by the Proponent. This includes all draft, 
final, and supplemental Environmental Impact Statements (EIS) 
originating in the Department prior to filing with EPA, unless 
otherwise delegated.
    7. Evaluate new or substantively revised supplemental procedures 
from DHS components for conformance with this Directive. DHS 
components' supplemental procedures will only be recommended to CAS for 
approval after they are evaluated by DOSEP, meet all necessary CEQ and 
public review requirements, and incorporate all appropriate comments 
and revisions.
    8. Evaluate new or revised DHS component procedures for 
environmental planning requirements promulgated under laws other than 
NEPA to ensure appropriate consistency with existing policies or 
procedures and potential for department-wide applicability.
    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

[[Page 16803]]

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 
inadequate staff resources to ensure full compliance with this 
Directive or other environmental planning requirements.
    11. Assist DHS components, as needed, in reviewing and assessing 
the environmental impacts of proposed DHS actions covered by Executive 
Order (E.O.) 12114.
    12. Review and comment on EISs and NEPA analyses originating from 
agencies outside of DHS relating to:
    (a) Actions with national policy implications relating to 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 DHS missions.
    13. Coordinate requests from non-Departmental agencies regarding 
cooperating agency status within DHS, as appropriate.
    14. Act as the principal point of contact for DHS on environmental 
issues brought before CEQ, the Office of Management and Budget, the 
Advisory Council on Historic Preservation, U.S. Environmental 
Protection Agency headquarters, and other federal agency headquarters. 
This includes requests for alternative arrangements to comply with NEPA 
and CEQ regulations.
    15. Perform other functions as are specified in this Directive or 
as are appropriate under NEPA, CEQ regulations, applicable Executive 
Orders, other requirements concerning environmental matters.
    E. The Office of General Counsel will:
    1. Provide legal sufficiency review, when appropriate, for use of 
categorical exclusions, 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 (as defined in Appendix A, Glossary) in 
consultation with the Environmental Planning Program Manager (EPPM), 
whether a component's proposed action is subject to the procedural 
requirements of NEPA.
    3. Advise Proponents on compliance with NEPA, CEQ Regulations, 
applicable Executive Orders, and other environmental planning 
requirements.
    4. Assist in establishing or revising Departmental or component's 
NEPA procedures, including appropriate categorical exclusions (CATEX).
    F. All Under Secretaries, Designated DHS Officials, and Heads of 
Components 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 policy and procedures in this Directive.
    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.
    4. Support outreach processes for environmental planning.
    5. Coordinate with other DHS components 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 DOSEP 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, new or revised 
supplemental procedures for the implementation of this Directive. All 
supplemental procedures will be consistent with the National 
Environmental Policy Act, this Directive and the CEQ regulations.
    (a) Proposals to establish, substantively revise, or delete CATEXs 
are subject to DOSEP review, CEQ review, public comment, and 
publication of a final version in the Federal Register before they can 
be used.
    (b) For those Under Secretaries and Designated DHS Officials with 
delegated authority to sign environmental documents, preparation of 
handbooks and other technical guidance regarding NEPA implementation do 
not need CAS and CEQ approval.
    9. Propose to the CAS any new or revised procedures for 
environmental planning requirements promulgated pursuant to laws other 
than NEPA to confirm appropriate consistency with existing department-
wide policies or procedures and to evaluate potential applicability to 
other DHS components. Any new or revised procedures must be consistent 
with existing department-wide policies or procedures.
    10. Send all environmental documents and procedures via their 
respective organizational hierarchy to the DOSEP for review, prior to 
release to the public, unless otherwise delegated.
    11. Components not listed in paragraph 5.C.7 may request from the 
CAS a delegation of authority to sign environmental documents. The 
request should include documentation demonstrating that the component 
has adequate staff resources with knowledge and experience in preparing 
NEPA analyses and documentation sufficient to ensure full compliance.
    12. Ensure that all external communications on environmental 
planning requirements that are controversial, highly visible, 
classified, sensitive or related to matters with potential for 
Department-wide implications are coordinated with the DOSEP and provide 
DOSEP with a copy of all related formal communications.
    13. Respond to requests for copies of environmental documents, 
reports or other information related to the implementation of NEPA.
    14. Designate an appropriate Environmental Planning Program Manager 
(EPPM) and alternate in their respective components as a single point 
of contact for coordination with DOSEP on relevant environmental 
planning matters.
    G. Environmental Planning Program Managers (EPPMs) will:
    1. Act as a single point of contact for DOSEP on all environmental 
planning matters.
    2. Inform key officials within their respective components of 
current developments in environmental policy and programs.
    3. Coordinate environmental planning strategies for matters within 
their respective component's purview.
    4. Act to further their respective components compliance with the 
requirements of NEPA, CEQ regulations, this Directive, applicable 
Executive Orders, and other environmental requirements.
    5. Identify discretionary activities within their respective 
components and ensure that the requirements of this Directive are fully 
integrated into those activities.
    6. Work with Proponents in their respective components, as needed, 
to fulfill the requirements of this Directive and other environmental 
planning requirements. Consultation with Proponents will, at a minimum, 
involve the following objectives:

[[Page 16804]]

    (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 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 components on environmental issues 
that affect them.
    (h) Coordinate with DOSEP in preparing the environmental analysis 
for any actions covered by E.O. 12114.
    7. Propose changes in this Directive or their supplementary 
procedures through the appropriate lines of authority to DOSEP.
    8. Support outreach processes for environmental planning.
    9. In consultation with the DOSEP, define appropriate environmental 
training requirements for personnel within their respective components.
    10. Coordinate with DOSEP on environmental issues to be brought 
before CEQ, the Office of Management and Budget, the Advisory Council 
on Historic Preservation, U.S. Environmental Protection Agency 
headquarters, and other federal agency headquarters.
    11. Coordinate requests from non-Departmental agencies regarding 
cooperating agency status with DOSEP.
    H. Program or Project Proponents will (in consultation with their 
respective EPPM):
    1. Ensure 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. Ensure that the program or project has adequate funding and 
resources to complete appropriate environmental analysis and 
documentation.
    3. Ensure the quality of the analysis and the documentation 
produced in the environmental planning process.
    4. Perform the appropriate outreach and communication with federal, 
state, tribal, local, and public interests.
    5. Ensure that the project budget has sufficient resources to meet 
all mitigation commitments.
    6. Seek technical assistance from the DOSEP, 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 mission. Environmental planning processes provide a systematic 
means of evaluating and fulfilling this aspect of DHS responsibility. 
DHS recognizes that when environmental stewardship responsibilities are 
not managed effectively, there may be social, financial, and 
administrative costs, as well as lost opportunities and potential for 
lower quality mission outcomes. To effectively meet its environmental 
stewardship responsibilities, DHS will integrate environmental planning 
requirements into homeland security operational planning, program 
development, and management methodologies consistent with homeland 
security requirements, fiscal policies, and other considerations of 
national policy.
    B. DHS Proponents will have the lead role in the environmental 
planning process. 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. 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 NEPA.
    C. DHS Proponents will provide for adequate staff, funding, and 
time to integrate environmental planning into DHS missions and to 
perform appropriate NEPA analysis (in conformance with 40 CFR 1507.2) 
for programs, plans, policies, projects, regulations, orders, 
legislation or applications for permits, grants, or licenses. 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. 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.
    2. Ensure that no action moves forward for funding or approval 
without the systematic and interdisciplinary examination of likely 
environmental consequences according to the policy and procedures in 
this Directive.
    3. Balance environmental concerns with mission requirements, 
technical requirements, and costs in the decision making processes to 
ensure long-term sustainability of DHS operations.
    4. Allow for appropriate communication, cooperation, and 
collaboration between DHS, other government entities, the public, and 
non-governmental entities as an integral part of the NEPA process.
    E. DHS Proponents will emphasize 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 present the evaluation 
of 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 is quality analysis to support DHS 
decisions, not the production of documents.
    F. DHS Proponent, in consultation with the EPPM and the Office of 
General Counsel, will determine the level of NEPA analysis required for 
the proposed action. 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 that is the subject of an EA or EIS process will be taken 
that limits reasonable alternatives, involves a conflict of resource 
use, or has an adverse environmental effect until the ROD or FONSI has 
been made public. No actions or portions of an action covered by a 
CATEX that requires a Record of Environmental Consideration

[[Page 16805]]

(REC) will be taken until the REC is completed.
    G. Laws other than NEPA that require 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 relieve the Proponent from completing an environmental planning 
process, including appropriate compliance with NEPA. In addition, 
compliance with NEPA does not relieve the Proponent from complying with 
other environmental requirements.

7. Procedures

    A. Appendix A contains specific procedures for the application of 
environmental planning requirements to DHS consistent with the 
Secretary's objectives and the policies in this Directive. Appendix A 
also provides a glossary.
    B. A DHS component with delegation of authority under Section 5.C.7 
may also propose supplemental procedures for CAS approval. Supplemental 
procedures specific to a DHS component will be effective upon approval 
by CAS.
    C. All supplemental procedures must be fully consistent with this 
Directive.
    D. DHS components may not use the CATEX expressly limited to 
another DHS component or CATEX from any other federal agency.
    E. The CAS may revoke all or part of a component's delegation and 
any supplemental procedures. No component will be given approval to 
implement its own supplemental procedures, unless they also have 
received complete delegation authority.
    F. Components may prepare handbooks or other technical guidance for 
their personnel on how to apply these procedures to their programs.
    G. Any questions or concerns regarding this Directive should be 
addressed to the Director, Office of Safety and Environment.

Appendix A, Timely and Effective Environmental Planning in the 
Department of Homeland Security

Introduction

    This Appendix provides guidance for timely and effective 
environmental planning and includes supplementary instructions for 
implementing the NEPA process in DHS. The numbers in parentheses 
signify the relevant citation in CEQ Regulations. DHS and its 
components will use NEPA as a strategic planning tool, not as a 
documentation exercise. 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 DHS have a major role in this process 
and are responsible for implementing the policies and provisions set 
out in this section. 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 reflect the increasing potential for 
significant environmental effects. It is expected that the majority of 
proposed DHS actions will be able to be evaluated through CATEX or 
environmental assessments. Fewer DHS actions are likely to require an 
EIS, which is prepared for those proposals with the potential to 
significantly impact natural resources and the human environment.
1.1 Up-Front Planning Activities
    A. Continually assess environmental planning in DHS to improve its 
effectiveness in supporting and enabling departmental missions.
    B. Adapt environmental planning goals and requirements to 
complement DHS mission requirements.
    C. Fully integrate NEPA and other environmental planning goals and 
requirements into program planning and decision-making processes and 
formal direction, as appropriate, at all levels of the DHS 
organization.
    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 environmental and planning reviews concurrently, 
rather than sequentially, with the NEPA process.
    C. Use 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, where appropriate, to other 
federal, tribal, state, and local agencies that have

[[Page 16807]]

jurisdiction by law or special expertise, which means statutory 
responsibility, agency mission or related program experience, with 
respect to environmental issues.
    G. Ensure the scientific integrity of all environmental impact 
analyses, mitigation requirements, and monitoring requirements.
    H. Make maximum use of programmatic analyses and tiering of 
environmental planning efforts to provide relevant environmental 
information at the appropriate program and project 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. In accordance with 40 CFR 1506.3, consider adopting relevant 
existing environmental impact analyses, or any pertinent parts thereof, 
whether prepared by DHS or another agency. Adopted environmental impact 
analyses of others may be revised or supplemented as needed to serve 
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 CATEX to ensure that DHS environmental 
planning resources remain focused on those activities with the most 
potential for significant effects.
1.3 Follow Through--Monitoring and Mitigation (40 CFR 1505.3)
    A. Practical mitigation measures (i.e., those that can be 
reasonably accomplished within the scope of a proposed alternative, to 
include offsite mitigation) should be identified to address the impacts 
of the proposed action and alternatives. Any mitigation measures 
selected by the Proponent will be clearly outlined in the FONSI or ROD 
and will be included in the proposed budget for the project or made a 
part of the approved application from external entities.
    B. Use best management practices and existing environmental 
management 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 
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 Dispute Resolution
    A. The DHS Dispute Resolution Process. During the environmental 
planning process, a DHS Proponent and another federal agency may not 
agree on significant issues or aspects of the process. DHS policy is to 
seek to resolve these disputes at the lowest organizational level 
possible. However, there are occasions when disputes cannot be resolved 
at this level. Figure 2 provides a diagram of the full dispute 
resolution process within DHS. Alternative Dispute Resolution, using 
the Institute for Environmental Conflict Resolution (a federal agency 
based in Tucson, Arizona) or another mediation service, is an option 
that may be used at any stage of this dispute resolution process for 
more significant disputes.
    When significant disputes arise, it is important to maintain a 
record of the positions and interests of all of the disputing parties, 
as well as the eventual resolution of the dispute. 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.
    If dispute negotiations fail, the Proponent must notify the other 
federal agency in writing that an agreement is unlikely and provide a 
copy to the headquarters of the respective DHS component (where the 
component does not have a separate headquarters, then the notification 
must go to the Proponent's program office within their respective 
Assistant Secretary's staff). From the date of that letter, the 
headquarters of the DHS component will initiate 30 additional working 
days of negotiations.
    If after 30 working days, the headquarters of the DHS component 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 resolving the issue.
    B. The CEQ Referral Process (40 CFR Part 1504). The CEQ referral 
process is available when an agency is of the opinion that there are 
unacceptable environmental effects associated with another agency's 
proposed actions. Upon receipt of information that another federal 
agency intends to refer a DHS matter to CEQ, the DHS lead component 
will immediately notify and consult with the DOSEP to notify the DEE 
and determine how to proceed. In those instances where a DHS component 
is of the opinion that another agency's proposed action that is being 
analyzed in an EIS will result in unacceptable environmental effects, 
the component should elevate the matter to the DOSEP and DEE at the 
earliest possible time to determine how to proceed in accordance with 
40 CFR part 1504.
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2.0 Intergovernmental Collaboration and Public Involvement

2.1 Purpose
    Open communication, consistent with other federal requirements, is 
DHS policy. The purpose of this policy is to build trust between DHS 
and the communities it serves. Other organizations and citizens play an 
important role in protection of resources and their communities. 
Collaboration with other federal, tribal, state, and local agencies, as 
well as non-governmental organizations (NGOs) and the general public is 
an effective means to identify important issues to be considered in the 
environmental planning process. In many cases, these parties have 
expertise not available in DHS or they may have authorities and 
obligations to protect specific resources or to approve or fund all or 
a part of the proposal. Knowing these issues early in the environmental 
planning process enables a focused effort 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 DHS, can serve to avoid conflicts and facilitate resolution 
when conflicts occur. Awareness and consideration of the needs and 
requirements of other organizations and the general public,

[[Page 16809]]

consistent with mission requirements, will enhance the effectiveness of 
DHS missions.
2.2 Coordination With Other Government Agencies, Tribes, States, and 
the General Public
    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 all 
appropriate aspects of environmental planning, especially in an 
environmental impact analysis process. In many cases, these 
organizations have expertise not available in DHS or they may have 
authorities and obligations to protect specific resources.
    A. When DHS is the lead agency for an environmental planning 
effort, it is responsible for the scope of the NEPA analysis and the 
use of processes to coordinate with other government agencies, tribes, 
states, and the general public to assist in defining that scope.
    B. When another agency has expertise to analyze the potential 
environmental effect of a DHS proposal, the Proponent will coordinate 
with it early to ensure high quality and complete analysis.
    C. DHS will coordinate draft environmental impact analyses with 
appropriate federal, tribal, and state 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 EPA Administrator with authority to, 
among other things, 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, DHS Proponents must 
ensure that their EISs are appropriately coordinated with the EPA.
    E. Proponents will make special effort to coordinate with affected 
tribes. In particular, Executive Order 13175, entitled ``Consultation 
and Coordination with Indian Tribal Governments'' directs all federal 
departments to, among other things, ``strengthen the United States 
government-to-government relationships with Indian tribes and establish 
regular and meaningful consultation and collaboration with tribal 
officials in the development of Federal policies that have tribal 
implications * * *''
    F. Obtaining the views of the surrounding community and other 
interested parties during planning and decision making processes helps 
proponents to focus the analysis to issues that are important to the 
public or the decision making at hand and set the boundaries of the 
environmental evaluation. Public involvement is a process that starts 
early and continues throughout the planning and early stages of 
conducting a NEPA analysis.
    G. Scoping (40 CFR 1501.7) is a term for the process of 
coordination with other government agencies, tribes, states, and the 
general public that is required for EISs. DHS strongly encourages the 
use of a process like scoping for EAs.
2.3 Lead Agencies (40 CFR 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. DHS will be the lead agency when a proposed action is clearly 
within the province of 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 DHS 
authority or has a significant responsibility regarding the action.
    B. Unless otherwise delegated, the CAS will designate a component 
within DHS to be the lead agency when more than one component could be 
involved. As necessary, the CAS 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 a 
component has a duty to comply with state or local requirements that 
are comparable to the NEPA requirements.
2.4 Cooperating Agencies (40 CFR 1501.6 and 1508.5)
    DHS components are encouraged to use the cooperating agency 
process. Other federal, tribal, or state agencies may share a role in 
the environmental planning associated with programs or projects in DHS 
missions. These agencies often have specialized expertise or authority 
in environmental planning requirements that can benefit DHS mission 
planning. Where another federal, tribal, or state government agency has 
jurisdiction by law or special expertise with respect to environmental 
issues, the DHS Proponent should encourage the agency to be a 
cooperating agency pursuant to 40 CFR 1501.6 and 1508.5.
    Any federal agency with jurisdiction by law must be a cooperating 
agency, if requested by the lead agency. Any federal agency with 
special expertise with respect to environmental issues in an 
environmental impact analysis may also be a cooperating agency, by 
agreement. Any tribal, state, or local government entity with 
jurisdiction by law or special expertise on any environmental issue may 
also be a cooperating agency, by agreement.
    CAS, as needed, will coordinate requests from non-Departmental 
agencies in determining cooperating agency status within DHS.
2.5 Public Involvement (40 CFR 1506.6)
    Open communication with the American public in the environmental 
planning process, consistent with other federal requirements, is DHS 
policy. Public involvement in the environmental planning process helps 
produce better decisions. Other public organizations, NGOs, and 
citizens play an important role in the protection of resources. DHS 
encourages early and open public involvement in environmental planning 
processes.
    A. Environmental Assessments. The Proponent will involve other 
agencies, applicants, and the public in the environmental impact 
evaluation process leading to the preparation of an EA, to the extent 
practicable (to the extent that it can be done). The Proponent has 
discretion under 40 CFR 1501.4 (b) and 1506.6(a) regarding the type and 
level of public involvement and the length of any public comment period 
in EA preparation. Section 4.3 describes the public involvement policy 
for an EA in greater detail. The following factors are to be weighed in 
determining the nature of the public involvement effort and the length 
of the public comment period in EA preparation.
    (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.
    (6) Nature of the environmental impact evaluation; for example a 
determination of conformity with a state air quality implementation 
plan may require public review. The guidance under the following 
section for EISs (section 2.6.B) should also be considered when 
preparing an environmental assessment.
    B. Environmental Impact Statements. CEQ regulations mandate 
specific

[[Page 16810]]

public-involvement steps in the EIS. Component's will:
    (1) Provide for appropriate public involvement. Public involvement 
must begin early in the proposal development stage, and during 
preparation of an EIS. The involvement of other federal agencies and 
state, local, and tribal governments with jurisdiction or special 
expertise with respect to environmental issues, as well as the general 
public, is an integral part of impact analysis, and provides 
information and conclusions for incorporation into an EIS. 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 
effort should be made to identify and perform outreach to affected 
minority populations and low-income populations. Public notices for 
NEPA activities involving proposals that are controversial, likely to 
receive Congressional or high-level executive branch attention, likely 
to gain nationwide attention, have DHS wide effects, or involve 
classified or sensitive issues should be cleared with the Departmental 
Environmental Executive (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, components are encouraged to use electronic means to 
provide access to and distribution of environmental planning 
information and NEPA documents.
2.6 Review of Other Agencies' Analyses and Documents
    A. DHS components should review and comment on other agencies' 
environmental analyses and documents when the proposed action may 
impact DHS missions, operations, or facilities.
    B. Comments should be confined to matters within the jurisdiction 
or expertise of the Department; such as security, immigration, or 
enforcement.
    C. If a DHS component intends to issue formal adverse comments on a 
non-DHS agency's analysis or document, the matter should be coordinated 
with DOSEP prior to issuing the comments.

3.0 Categorical Exclusions (40 CFR 1507.3(b)(2)(ii))

3.1 Purpose
    A. CEQ regulations (40 CFR 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 CATEXs allow DHS 
components to avoid unnecessary efforts and paperwork and concentrate 
their resources on those proposed actions having real potential for 
environmental concerns.
    B. Components may otherwise decide 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 CATEXs 
(together with justification) will be forwarded through the component 
to the DOSEP for approval. Upon DOSEP approval, proposals to delete, 
modify, or establish new CATEXs will be subject to both CEQ review and 
public comment before they will be available for use.
3.2 Conditions and Extraordinary Circumstances (40 CFR 1508.4)
    For an action to be categorically excluded, DHS components, working 
with the EPPM, must satisfy each of the three conditions described 
below. If the proposed action does not meet these conditions, is not 
exempted by a statute or subject to emergency provisions for 
alternative compliance with NEPA, 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 CATEX require documentation of the consideration of 
these conditions in the form of a Record of Environmental 
Consideration. A component should not use a CATEX for an action with 
significant impacts, regardless of whether the impacts are beneficial 
or adverse.
    A. Clearly Fits the Category. The entire action clearly fits within 
one or more of the categories of excludable actions listed in Section 
3.3.
    B. Is Not a Piece of a Larger Action. It is not appropriate to 
segment an action or connected actions by division into smaller parts 
in order to avoid a more extensive evaluation of the potential for 
significant environmental impacts under NEPA. One form of segmentation 
occurs when the scope of the action has been divided solely for the 
purposes of using several CATEX or the repetitive use of a single 
CATEX. For purposes of NEPA, actions must be considered in the same 
review if the actions are connected, for example: where one action 
triggers or forces another; where one action depends on another (e.g., 
when one action is an interdependent part of a larger action, or where 
one action will not proceed unless another action is taken).
    C. No Extraordinary Circumstances Exist. It is not appropriate to 
categorically exclude an action when there are extraordinary 
circumstances present that would create the potential for a normally 
excluded action to have a significant environmental effect. In those 
cases where a specific action that might otherwise be categorically 
excluded is associated with one or more extraordinary circumstances, a 
Record of Environmental Consideration (REC), as described in paragraph 
3.3.B, will be prepared to document the determination that the proposed 
action is appropriately categorically excluded or requires further 
analysis through an EA or EIS process. A determination of whether an 
action that is normally excluded requires additional analysis because 
of extraordinary circumstances must focus on the action's potential 
effects and consider the environmental significance of those effects in 
terms of both context (whether local, state, regional, tribal, 
national, or international) and intensity. This determination is made 
by considering whether the specific 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, 
the Migratory Bird Treaty 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

[[Page 16811]]

a significant scientific, cultural, or historical resource.
    (4) A potentially significant effect on an environmentally 
sensitive 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, or 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) Extent to which a precedent is established for future actions 
with 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.
    (11) Whether the action is related to other actions with 
individually insignificant, but cumulatively significant impacts.
3.3 List of Categorically Excludable Actions
    A. Table 1 provides a list of Categorical Exclusions, i.e., those 
activities which normally require no further NEPA analysis in an EA or 
an EIS. When relying on Table 1, Proponents, in consultation with their 
EPPM, should be alert for the presence of the extraordinary 
circumstances listed in Section 3.2. DHS CATEXs are divided into the 
following functional groupings of activities conducted by DHS 
components in fulfilling the Department's mission:

(1) Administrative and Regulatory Activities
(2) Operational Activities
(3) Real Estate Management Activities
(4) Repair and Maintenance Activities
(5) Construction, Installation, and Demolition Activities
(6) Hazardous/Radioactive Materials Management and Operations
(7) Training and Exercises
(8) Categorical Exclusions for specific DHS components

    B. Record of Environmental Consideration (REC). When there are 
extraordinary circumstances associated with a specific proposal that is 
a part of class of actions that is otherwise categorically excluded, a 
REC must be prepared. A REC is a means of documenting the consideration 
of the conditions listed in Section 3.2 and the determination that the 
specific action contemplated is either appropriately categorically 
excluded or should be analyzed through an EA or an EIS process. Certain 
CATEX, identified by an asterisk, include classes of actions that have 
a higher possibility of involving extraordinary circumstances. A REC 
will be prepared whenever a CATEX that is identified by an asterisk is 
used. The DOSEP will sign all RECs unless signature authority has been 
delegated to the component. The REC will normally not exceed two pages.

                    Table 1.--Categorical Exclusions
------------------------------------------------------------------------
          CATEX
------------------------------------------------------------------------
     Administrative and Regulatory Activities. These CATEX have the
  additional requirement to be conducted in conformance with Executive
Orders on Greening the Government, E.O.s 13101, 13123, 13148, 13149, and
                                 13150.
------------------------------------------------------------------------
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 changing
                                     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. If any of these
                                     activities result in proposals for
                                     further action, those proposals
                                     must be covered by an appropriate
                                     CATEX. Examples include but are not
                                     limited to:
                                    (a) Document mailings, publication
                                     and distribution, training and
                                     information programs, historical
                                     and cultural demonstrations, and
                                     public affairs actions.
                                    (b) Studies, reports, proposals,
                                     analyses, literature reviews;
                                     computer modeling; and non-
                                     intrusive intelligence gathering
                                     activities.
A5................................  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.

[[Page 16812]]


A6................................  Procurement of non-hazardous goods
                                     and services, and storage,
                                     recycling, and disposal of non-
                                     hazardous materials and wastes,
                                     that complies with applicable
                                     requirements and is in support of
                                     routine administrative,
                                     operational, or 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 laboratory use,
                                    (f) Deployable emergency response
                                     supplies and equipment, and
                                    (g) Waste disposal and contracts for
                                     waste disposal in established
                                     permitted landfills and facilities.
A7................................  The commitment of resources,
                                     personnel, and funding to conduct
                                     audits, surveys, and data
                                     collection of a minimally intrusive
                                     nature. If any of these commitments
                                     result in proposals for further
                                     action, those proposals must be
                                     covered by an appropriate CATEX.
                                     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) Conducting Facility Audits,
                                     Environmental Site Assessments and
                                     Environmental Baseline Surveys, and
                                    (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 applicable 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
                                     jeep trails established by federal,
                                     tribal, state, or local
                                     governments, 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 applicable Federal,
                                     tribal, state, or local
                                     requirements to protect the
                                     environment.
B4................................  Provision of on-site technical
                                     assistance to non-DHS organizations
                                     to prepare plans, studies, or
                                     evaluations. 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.
                                    (b) State strategy technical
                                     assistance to assist states in
                                     completing needs and threat
                                     assessments and in developing their
                                     domestic preparedness strategy.
B5................................  Support for or participation in
                                     community projects that do not
                                     involve significant physical
                                     alteration of the environment.
                                     Examples include, but are not
                                     limited to:
                                    (a) Earth Day activities,
                                    (b) Adopting schools,
                                    (c) Cleanup of rivers and parkways,
                                     and
                                    (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
                                     activity that would not involve
                                     significant physical alteration of
                                     the environment. Examples include,
                                     but are not limited to:
                                    (a) Picnics,
                                    (b) Encampments, and
                                    (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................................  Initial assignment or realignment 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, or
                                     evaluation of security equipment to
                                     screen for or detect dangerous or
                                     illegal individuals or materials at
                                     existing facilities and the
                                     eventual removal and disposal of
                                     that equipment in compliance with
                                     applicable requirements to protect
                                     the environment. Examples of the
                                     equipment 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, and
                                    (e) Access controls, screening
                                     devices, and traffic management
                                     systems.

[[Page 16813]]


B9*...............................  Acquisition, installation,
                                     operation, or evaluation of
                                     physical security devices, or
                                     controls to enhance the physical
                                     security of existing critical
                                     assets and the eventual removal and
                                     disposal of that equipment in
                                     compliance with applicable
                                     requirements to protect the
                                     environment. Examples include, but
                                     are not limited to:
                                    (a) Motion detection systems,
                                    (b) Use of temporary barriers,
                                     fences, and jersey walls on or
                                     adjacent to existing facilities or
                                     on land that has already been
                                     disturbed or built upon,
                                    (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 for land based and
                                     waterfront facilities,
                                    (h) Column and surface wraps, and
                                    (i) Breakage/shatter-resistant
                                     glass.
B10...............................  Identifications, inspections,
                                     surveys, or sampling, testing,
                                     seizures, quarantines, removals,
                                     sanitization, and monitoring of
                                     imported products that cause little
                                     or no physical alteration of the
                                     environment. This CATEX would
                                     primarily encompass a variety of
                                     daily activities performed at the
                                     borders and ports of entry by
                                     various elements of the Customs and
                                     Border Protection and
                                     Transportation Security
                                     Administration.
B11...............................  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 (construction activities
                                     are addressed in Subsection F of
                                     these CATEX). This CATEX would
                                     primarily encompass a variety of
                                     daily activities performed by the
                                     components of U.S. Coast Guard,
                                     Immigration and Customs
                                     Enforcement, Customs and Border
                                     Protection, Transportation Security
                                     Administration, and the U.S. Secret
                                     Service.
------------------------------------------------------------------------
                         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.
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 Department (e.g., from
                                     one Departmental element to
                                     another) that 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
                                     another federal agency and the
                                     Department that 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
                                     Department 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, adding a small storage
                                     shed to an existing building,
                                     retrofitting for energy
                                     conservation, or 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 for
                                     the installation).
D2................................  Routine upgrade, repair,
                                     maintenance, or replacement of
                                     equipment and vehicles, such as
                                     aircraft, vessels, or airfield
                                     equipment that does not result in a
                                     change in the functional use of the
                                     property.
D3................................  Repair and maintenance of Department-
                                     managed 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, and maintenance
                                     of waterfront facilities that does
                                     not require individual regulatory
                                     permits).
D4*...............................  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*...............................  Maintenance dredging activities
                                     within waterways, floodplains, and
                                     wetlands where no new depths are
                                     required, applicable permits are
                                     secured, and associated debris
                                     disposal is done at an approved
                                     disposal site. This CATEX
                                     encompasses activities required for
                                     the maintenance of waterfront
                                     facilities managed primarily within
                                     the U.S. 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, and
                                    (d) Removing and controlling exotic
                                     vegetation, not including the use
                                     of herbicides or non-native
                                     biological controls.
                                    This CATEX would primarily involve
                                     property management activities at
                                     larger properties within the Coast
                                     Guard, Science and Technology
                                     Directorate, and the Federal Law
                                     Enforcement Training Centers.
------------------------------------------------------------------------

[[Page 16814]]


          Construction, Installation, and Demolition Activities
------------------------------------------------------------------------
E1................................  Construction, installation,
                                     operation, maintenance, and removal
                                     of utility and communication
                                     systems (such as mobile antennas,
                                     data processing cable, and similar
                                     electronic equipment) that use
                                     existing rights-of-way, easements,
                                     utility distribution systems, and/
                                     or facilities. This is limited to
                                     activities with towers where the
                                     resulting total height does not
                                     exceed 200 feet and 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
                                     Federal, tribal, state, and local
                                     planning and zoning standards and
                                     consistent with federally-approved
                                     state coastal management programs,
                                    (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, and,
                                    (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 Department's 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 applicable
                                     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, and,
                                    (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 on Department-managed
                                     property to aid in the maintenance
                                     or restoration of native flora and
                                     fauna, including site preparation,
                                     landscaping, and control of non-
                                     indigenous species. This CATEX
                                     would encompass property management
                                     activities primarily at properties
                                     within the U.S. Coast Guard,
                                     Science and Technology Directorate,
                                     and the Federal Law Enforcement
                                     Training Centers.
E6................................  Reconstruction of roads on
                                     Departmental facilities, where
                                     runoff, erosion, and sedimentation
                                     issues are mitigated through
                                     implementation of best management
                                     practices. This CATEX would
                                     encompass property management
                                     activities primarily at properties
                                     within the U.S. Coast Guard,
                                     Science and Technology Directorate,
                                     and the Federal Law Enforcement
                                     Training Centers.
E7................................  Construction of physical fitness and
                                     training trails for non-motorized
                                     use on Department facilities in
                                     areas that are not environmentally
                                     sensitive, where run-off, erosion,
                                     and sedimentation are mitigated
                                     through implementation of best
                                     management practices. This CATEX
                                     would encompass property management
                                     activities primarily at properties
                                     within the U.S. Coast Guard,
                                     Science and Technology Directorate,
                                     and the Federal Law Enforcement
                                     Training Centers.
E8*...............................  Construction of aquatic and riparian
                                     habitat in streams and ponds on
                                     Department-managed land, 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, and,
                                    (d) Removing and controlling exotic
                                     vegetation, not including the use
                                     of herbicides or non-native
                                     biological controls.
                                    This CATEX would encompass property
                                     management activities primarily at
                                     properties within the U.S. Coast
                                     Guard, Science and Technology
                                     Directorate, and the Federal Law
                                     Enforcement Training Centers.
------------------------------------------------------------------------
        Hazardous/Radioactive Materials Management and Operations
------------------------------------------------------------------------
F1................................  Routine procurement, transportation,
                                     distribution, use, and storage of
                                     hazardous materials that comply
                                     with all applicable requirements,
                                     such as Occupational Safety and
                                     Health Act (OSHA) and National Fire
                                     Protection Association (NFPA).
F2................................  Reuse, recycling, and disposal of
                                     solid, medical, radiological, and
                                     hazardous waste generated
                                     incidental to Department activities
                                     that comply with applicable
                                     requirements such as Resource
                                     Conservation and Recovery Act
                                     (RCRA), Occupational Safety and
                                     Health Act (OSHA), and state
                                     hazardous waste management
                                     practices. Examples include but are
                                     not limited to:
                                    (a) Appropriate treatment and
                                     disposal of medical waste conducted
                                     in accordance with all federal,
                                     state, local and tribal laws and
                                     regulations,
                                    (b) Temporary storage and disposal
                                     solid waste, conducted in
                                     accordance with all federal, state,
                                     local and tribal laws and
                                     regulations,
                                    (c) Disposal of radiological waste
                                     through manufacturer return and
                                     recycling programs, and
                                    (d) Hazardous waste minimization
                                     activities.

[[Page 16815]]


F3................................  Use (that may include the processes
                                     of installation, maintenance, non-
                                     destructive testing, and
                                     calibration), transport, and
                                     storage of hand-held, mobile or
                                     stationary instruments, containing
                                     sealed radiological and radioactive
                                     materials, to screen for or detect
                                     dangerous or illegal individuals or
                                     materials in compliance with
                                     commercial manufacturers
                                     specifications, as well as
                                     applicable Federal requirements to
                                     protect the human environment.
                                     Examples of such instruments
                                     include but are not limited to:
                                    (a) Gauging devices, tracers, and
                                     other analytical instruments,
                                    (b) Instruments used in industrial
                                     radiography,
                                    (c) Systems used in medical and
                                     veterinary practices; and
                                    (d) 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.
------------------------------------------------------------------------
                         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 to contain
                                     the materials used 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, and
                                    (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 or
                                     a natural or manmade disaster and
                                     where conducted 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).
------------------------------------------------------------------------
      Unique Categorical Exclusions for the Transportation 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 or revocation of
                                     certificates or other approvals,
                                     including but not limited to:
                                    (a) Airmen certificates,
                                    (b) Security procedures at general
                                     aviation airports, and
                                    (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 where the
                                     placement or use of the facility
                                     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 5,000 square feet and the
                                     facility or structure must not
                                     foreclose future land use
                                     alternatives.
------------------------------------------------------------------------
 Unique Categorical Exclusions for the Federal Law Enforcement Training
                                 Center
------------------------------------------------------------------------
J1*...............................  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.
J2................................  Harvest of live trees on Federal Law
                                     Enforcement Training Center
                                     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, and
                                    (b) Commercial thinning of
                                     overstocked stands to achieve the
                                     desired stocking level to increase
                                     health and vigor.
J3................................  Salvage of dead and/or dying trees
                                     on Federal Law Enforcement Training
                                     Center 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,
                                     and
                                    (c) Harvest of insect or disease
                                     damaged trees.
------------------------------------------------------------------------

[[Page 16816]]


     Unique Categorical Exclusions for Customs and Border Protection
------------------------------------------------------------------------
K1................................  Road dragging of existing roads and
                                     trails established by Federal,
                                     tribal, state, or local governments
                                     to maintain a clearly delineated
                                     right-of-way, 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.
------------------------------------------------------------------------
* Denotes classes of actions that have a higher possibility of involving
  extraordinary circumstances. A REC will be prepared whenever a CATEX
  that is identified by an asterisk is used.

4.0 Environmental Assessments

4.1 Purpose
    An EA is a brief analysis that is prepared pursuant to NEPA to 
assist the Proponent in decision making by determining whether an EIS 
must be prepared. The environmental impact evaluation process 
summarized in an EA will conclude in either a finding of no significant 
impact (FONSI) or a Notice of Intent to prepare an EIS.
4.2 When To Use
    A. For any proposed action by a component that does not qualify for 
a CATEX or involves extraordinary circumstances that preclude use of 
the CATEX, or does not clearly require an EIS, the Proponent will 
prepare an EA unless it is otherwise clear that an EIS is needed.
    B. If changes in the scope of a proposed component's 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 need not be prepared if a Proponent has decided to prepare 
an EIS on a proposed action.
    D. An EA may be prepared on any action at any time a Proponent 
determines that an EA would assist DHS planning and decision making.
4.3 Considerations in Preparation of an EA or a Programmatic EA
    A. CEQ regulations and DHS policy require public involvement in the 
environmental impact evaluation process leading to the preparation of 
an EA. The degree of public involvement is to be determined by 
evaluating the factors in Appendix A, Section 2.5. In addition, 
Appendix A, Section 2.2 strongly encourages the use of a process like 
scoping to fulfill public involvement requirements during the 
preparation of an EA. Subparagraphs 4.3.E and F of this Directive 
describe other procedures to obtain public involvement in the 
preparation of an EA.
    B. The EA should include alternatives to the proposed action.
    C. Unless signature authority has been specifically delegated to a 
relevant DHS component, EAs and the associated environmental documents 
should be reviewed and approved by the CAS.
    D. An EA may result in a FONSI when one of two situations exists: a 
FONSI may conclude the process when either (1) the evaluation of 
environmental effects of the proposed action finds no potential for 
significant impact to the quality of the human environment or (2) the 
component can commit to including measures in the proposed action that 
mitigate the potential for significant impact until it is no longer 
significant. If a Proponent uses mitigation measures in such a manner, 
the FONSI must identify these mitigating measures, and they 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.
    E. When a process like scoping is not used to involve the public 
early in the preparation of an EA, the Proponent, in consultation with 
the EPPM, will determine how to make any EA and proposed FONSI 
available to the public before making a decision or taking an action. 
This determination should be made after evaluation of the factors in 
Appendix A, Section 2.5. When it is determined that an EA and proposed 
FONSI will be made available for public review and comment pursuant to 
this subparagraph, a minimum period of thirty (30) days will normally 
be provided for comment.
    F. There are certain situations, described in 40 CFR 1501.4(e) (2), 
when a public review period is required for a draft FONSI. DHS will 
publish the EA with any draft FONSI that is published for public review 
pursuant to this subparagraph. Following the procedure in this 
subparagraph does not preclude the option to also use a process like 
scoping to obtain public involvement early in the process of preparing 
an EA.
    G. The EA process concludes with either a public notice of the 
availability of the approved EA and signed FONSI or a decision to 
proceed to prepare an EIS and the publication of a Notice of Intent in 
the Federal Register.
4.4 Actions Normally Requiring an EA or a Programmatic EA (40 CFR 
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 area that was 
previously 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, and the anticipated environmental impacts are 
minor. A site or activity-specific EA or supplemental EA, may be tiered 
to the Programmatic EA and the environmental analysis discussed in the 
broader statement be incorporated by reference in the site-specific EA. 
In some cases the

[[Page 16817]]

Programmatic EA may be specific enough or contain sufficient 
information to require no or very little tiered analysis.
4.5 Decision Document: Finding of No Significant Impact (FONSI) (40 CFR 
1508.13)
    If the EA supports the conclusion that the action has no 
significant impact on the environment, the Proponent will prepare a 
separate Finding of No Significant Impact (FONSI) that will accompany 
the EA. The action described in the FONSI will be the one that DHS or 
its component intends to implement. It is also known as the ``proposed 
action'' under NEPA.
    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) A summary of 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, and,
    (5) The date of issuance and signature of the components official 
approving the document.
4.6 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.
    C. The Proponent will prepare, circulate, and file a supplement to 
an EA in the same manner as any other EA. The Proponent will provide 
public involvement in Supplemental EAs like that for other 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.
    D. The supplemental EA process concludes with either a public 
notice of the availability of the approved EA and signed FONSI or a 
decision to proceed to prepare an EIS and the publication of a Notice 
of Intent in the Federal Register.

5.0 Environmental Impact Statements (EISs) (40 CFR 1502)

5.1 Purpose
    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 (4) a description of the environmental effects 
of each of the alternatives and (5) a list of persons primarily 
responsible for a particular analysis (including their expertise, 
experience, and professional discipline). The EIS must identify the 
preferred alternative or alternatives (if one or more exist) in the 
draft EIS.
5.2 When To Use
    An EIS is prepared when a DHS component proposes an action that 
does not qualify for a CATEX or EA, and that could constitute a major 
federal action significantly affecting the quality of the human 
environment.
5.3 Actions Normally Requiring an EIS (40 CFR 1501.4), a Programmatic 
EIS, or a Legislative EIS (40 CFR 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 E.O. 12114,
    (4) Change in area, scope, type, and/or tempo of operations that 
may result in significant environmental effects, and
    (5) Where an action is required by statute or treaty to develop an 
EIS.
    B. A Programmatic EIS (PEIS) 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 DHS or its components are primarily 
responsible and which involves significant environmental impacts.
5.4 Preparation and Filing (40 CFR 1506.9)
    The Proponent is responsible for initiation, preparation, and 
approval of EISs. Preparation at this level is intended to ensure that 
the NEPA process will be incorporated into the activity planning 
process and that the EIS will accompany the proposal through existing 
review processes.
5.5 Combining Documents (40 CFR 1506.4)
    Draft and final EISs should refer to the underlying studies, 
reports, and other documents considered in conjunction with the 
preparation. The components 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.
5.6 Supplemental EISs (40 CFR 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 discussed in 40 CFR 1502.9(c)(1). In those cases 
where an action is not completed within a budget cycle (typically two 
years) from the year of 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 component's decision to prepare a supplemental EIS will be 
coordinated with the DEE unless such

[[Page 16818]]

decision has been delegated to the respective EPPM.
    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 an 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 
EPPM.
    E. The public notice methods should be chosen to reach persons who 
may be interested in or affected by the proposal.
5.7 Proposals for Legislation (40 CFR 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.
5.8 Decision Document: Record of Decision (ROD) (40 CFR 1505.2)
    If the component decides to take action on a proposal covered by an 
EIS, a ROD will be prepared. The components 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 components will also post the 
ROD on the component's Web site, if one exists.
5.9 Review of Other Agencies' EISs
    A. If any DHS component receives a request for EIS comment directly 
from another agency, and the DHS component wants to provide comments on 
the EIS, the DHS component will notify the DOSEP about the request. 
DOSEP will check if other DHS components have been requested to comment 
on the same EIS.
    (1) If no other DHS component has received a request for comment, 
DOSEP will inform the requested component to provide comments. However, 
comments on another agency's EIS will not be posted on a public docket 
without DEE approval.
    (2) If another DHS component has received a request for comment, 
DOSEP will either:
    (a) Coordinate the response between DHS components, or
    (b) Direct one of DHS components to serve as the lead commenting 
component.
    (3) The lead commenting component will provide a copy of formal 
comments on non-DHS agency EISs to DOSEP.
    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, DHS components 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 DHS components directly to DOSEP for comment, including:
    (1) Actions with national policy implications relating to the DHS 
mission,
    (2) Actions with national security, immigration, or law enforcement 
implications, and
    (3) Legislation, regulations, and program proposals having national 
impact on DHS's mission.

6.0 Special Circumstances

6.1 Emergencies (40 CFR 1506.11)
    In addition to natural disasters 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 defend and protect public health and 
safety as expeditiously as possible. Consequently, there may not be 
adequate time to perform the appropriate NEPA analyses and 
documentation. In the event of any such emergency, whether from natural 
or man-made causes, 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 CEQ regulations. 
Examples of emergencies that may require immediate DHS action include 
responses to hurricanes, earthquakes, imminent threat of terrorist 
activity, or the release or imminent release of hazardous, biological, 
or radiological substances.
    A. The DHS senior official responsible for responding to an 
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 official responding to the emergency (in coordination with 
the appropriate EPPM, where authority has been delegated under section 
5.C) shall ensure that DOSEP is advised on actions taken in response to 
the emergency that may have environmental impacts.
    B. If the DHS senior official responding to the emergency and the 
DOSEP (or the appropriate EPPM, where authority has been delegated 
under section 5.C) jointly conclude that the emergency response actions 
would qualify for a CATEX and give rise to no extraordinary 
circumstances that would preclude the use of a CATEX as defined in this 
Directive or CEQ regulations, then no further analysis or documentation 
is required to comply with NEPA prior to proceeding with DHS actions.
    C. In situations where the DHS senior official responding to the 
emergency and the DOSEP (or the appropriate EPPM, where authority has 
been delegated under section section 5.C) jointly conclude that the DHS 
emergency response actions would not qualify for a CATEX, the DHS 
senior official will, at a minimum, document consideration of the 
potential environmental effects in an environmental assessment for the 
DHS response action. If the environmental impact evaluation process 
concludes that no significant environmental effects will occur, a FONSI 
will be prepared and published. In the event the EA cannot be concluded 
prior to the initiation of DHS response actions, the DHS senior 
official, DOSEP, and the appropriate EPPM will develop alternative 
arrangements to meet the requirements of this Directive and CEQ 
regulations pertaining to environmental assessments. To the maximum 
extent practical, these alternative arrangements will ensure public 
notification and involvement and focus on minimizing the adverse 
environmental consequences of DHS response action and the emergency. 
The DOSEP, in coordination with the appropriate EPPM, will inform CEQ 
of these arrangements at the earliest opportunity.
    D. If, at any time, including during the preparation of an EA as 
described in paragraph C above, the DHS senior official responding to 
the emergency and the DOSEP (or the appropriate EPPM, where authority 
has been delegated under section section 5.C) jointly conclude that the 
emergency action appears to be a major federal action significantly 
affecting the quality of the human environment, the DOSEP, in 
coordination with the appropriate EPPM, 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 
1506.11.

[[Page 16819]]

    E. The alternative arrangements developed under Subsection C or D 
apply only to actions necessary to control the immediate effects of the 
emergency to prevent further harm to life or property. Other actions 
remain subject to NEPA review as set forth herein. Factors to address 
when crafting alternative arrangements include: nature and scope of the 
emergency; actions necessary to control the immediate impacts of the 
emergency; potential adverse effects of the proposed action; components 
of the NEPA process that can be followed and provide value to the 
decision making (such as coordination with regulatory agencies and the 
public), duration of the emergency; and potential mitigation measures.
    F. A public affairs contingency plan should be developed to ensure 
open communication among the media, the public, and DHS to the extent 
practical in the event of an emergency to cover the requirements of 
NEPA and other related topics.
6.2 Classified or Protected Information (40 CFR 1507.3(c))
    A. DHS will take care to make information in NEPA analysis and 
documents available to the public in conformance with its 
responsibilities under the Council on Environmental Quality regulations 
at 40 CFR 1506.6(f). In accordance with CEQ regulations, DHS will not 
disclose classified, sensitive security information, or other 
information that DHS otherwise would not disclose pursuant to the 
Freedom of Information Act (FOIA) (5 U.S.C. 552).
    B. The existence of classified or protected information does not 
relieve DHS of the requirement to assess and document the environmental 
effects of a proposed action.
    C. To the fullest extent possible, 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 component will withhold the entire NEPA analysis from 
the public; however, the DHS component will prepare the NEPA analysis 
in accordance with 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 
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 applicable Federal, tribal, state, and local 
environmental compliance requirements. This team will include internal 
environmental professionals and external resource professionals with 
appropriate clearances.
6.3 Procedures for Applicants (40 CFR 1501.2, 1506.5)
    A. DHS components with the role of processing applications for 
permits, grants, awards, licenses, approvals, or other major federal 
actions become the Proponent for environmental planning purposes. These 
Proponents must consider the environmental effects of their action in 
accordance with this Directive, where applicable. The requirements of 
this 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, DHS 
components must be alert to identify circumstances that may be 
associated with any single application that would have the potential 
for significant environmental impacts.
    B. For major categories of DHS actions involving a large number of 
applicants, the appropriate DHS component 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 required for later federal 
action.
    C. 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. DHS Proponents must consider the NEPA analysis in reaching 
a decision.
    D. In all cases, 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. Each DHS 
program Proponent must ensure, for each separate approval authority, 
that the responsibility for meeting the requirements of this Directive 
is appropriately allocated between the applicant and DHS for each 
program of applications and, potentially, for each individual 
applicant. At a minimum, the application submittal and approval process 
must incorporate the following provisions:
    (1) Consultation with 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 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 (i) a 
significant environmental impact; or (ii) 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 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 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. 
(40 CFR 1506.2)
    (7) Notification to DHS Proponent if the applicant changes the 
scope of the proposed action.
    (8) Notification to 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 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

[[Page 16820]]

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 from an applicant may be conditioned by provisions for 
appropriate mitigation of potentially significant environmental 
impacts. 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. 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, e.g., 
contracts, leases, or grants.

Glossary

    All terminology and definitions contained in 40 CFR Parts 1500-1508 
are incorporated into this Directive. The following definitions are 
provided for other terms and phrases used.
    Component: Any of the DHS organizational elements, including 
agencies, bureaus, services, directorates, etc.
    Council on Environmental Quality (CEQ): NEPA created in the 
Executive Office of the President a Council on Environmental Quality. 
The Council is appointed by the President with the advice and consent 
of the Senate. The President designates the Chairman. The Council, 
among other things, appraises programs and activities of the federal 
Government in light of the policy set forth in Title I of NEPA and 
formulates and recommends national policies to promote improvement of 
the quality of the environment.
    Designated DHS Official: Senior DHS officials as designated by the 
Secretary, Deputy Secretary, or Under Secretaries.
    Environmental Baseline Survey: A generic term that refers to 
procedures to investigate a real property asset to determine the 
presence or absence of natural or man made conditions that would 
require consideration under various environmental laws and regulations. 
An environmental baseline survey may or may not be encompassed within 
an environmental impact evaluation.
    Environmental Impact Evaluation: A generic term that includes the 
processes that result in either an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS). Environmental impact evaluation 
is often a major portion, if not the whole portion, of an environmental 
planning process.
    Environmental Planning Process: The effort required to 
systematically address the environmental stewardship requirements in 
public policy during program and project planning, development, and 
design; and prior to execution. This process may consist wholly or in 
part of an environmental impact evaluation. The environmental planning 
process may extend into execution, deployment, or operational phases 
when the need to control potential for adverse environmental impacts 
requires mitigation and monitoring.
    Environmental Site Assessment: A form of environmental baseline 
survey that typically focuses on determining the potential for soil or 
water contamination due to historical activities on or adjacent to 
defined parcels of real property. An environmental site assessment is 
often conducted in a manner to conform to standards established by ASTM 
International (formerly the American Society for Testing and 
Materials).
    Environmentally Sensitive Areas: These include, but are not limited 
to: (1) Proposed or designated critical habitat for threatened or 
endangered species; (2) properties listed or eligible for listing on 
the National Register of Historic Places; and (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, Marine Sanctuaries, National Wildlife Refuges, National 
Parks, National Monuments, essential fish habitat, etc.
    Facility Audit: A procedure to assess ongoing compliance with 
environmental requirements at operating facilities.
    National Environmental Policy Act (NEPA): Public Law 91-190, as 
amended, 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.
    Office of the General Counsel: This phrase refers to the Office of 
the General Counsel as a component, as defined in the DHS Delegations 
of Authority.
    Proponent: The identified project or program manager and may reside 
at any level of the organization of a component. 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 would also normally have 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 EPPM) for the content and quality 
of the process and documentation.
    Record of Environmental Consideration (REC): A REC is an internal 
DHS administrative document for recording the results of a review of a 
specific proposal that may be included in a category of actions 
described in a Categorical Exclusion. The purpose, use, and content of 
the REC are explained in Appendix A, Section 3.3.B.
[FR Doc. 06-3078 Filed 4-3-06; 8:45 am]

BILLING CODE 4410-10-P