[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Notices]
[Pages 33043-33066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13111]


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DEPARTMENT OF HOMELAND SECURITY


Environmental Planning Program

AGENCY: Department of the Homeland Security.

ACTION: Notice of proposed directive; request for comments.

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[[Page 33044]]

SUMMARY: The purpose of this notice is to provide an opportunity for 
public comment on the Department of Homeland Security draft directive 
containing policy and procedures for implementing the National 
Environmental Policy Act of 1969 (NEPA), as amended, Executive Order 
11514, as amended, Executive Order 12114, and Council on Environmental 
Quality (CEQ) regulations for implementing the procedural provisions of 
NEPA (40 CFR parts 1500-1508). Pursuant to CEQ regulations, the DHS is 
soliciting comments on its proposed internal management directive from 
members of the interested public.

DATES: Comments and related material must be received by July 14, 2004.

ADDRESSES: Please submit your comments by only one of the following 
means: (1) By mail to: Environmental Planning, Office of Safety and 
Environment, Management Directorate, Department of Homeland Security, 
Washington, DC 20528
    (2) By hand delivery to: Environmental Planning, Office of Safety 
and Environment, Management Directorate, Department of Homeland 
Security, Anacostia Naval Annex, Building 410, 245 Murray Lane, SW., 
Washington, DC 20528.
    (3) By Fax to: (202) 772-9749.
    In choosing among these means, please give due regard to the 
difficulties and delays associated with delivery of mail through the 
U.S. Postal Service.

FOR FURTHER INFORMATION CONTACT: Mr. David Reese, Office of Safety and 
Environment, Department of Homeland Security, 202.692.4224. e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Department of Homeland Security encourages interested persons 
to submit written data, views, or comments. Persons submitting comments 
should please include their name, address, and other appropriate 
contact information. You may submit your comments and material by one 
of the means listed under ADDRESSES. If you submit them by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit them 
by mail and would like to know that they were received, please enclose 
a stamped, self-addressed postcard or envelope. The DHS will consider 
all comments received during the comment period.

Background

    This directive establishes policy and procedures to ensure the 
integration of environmental considerations into the unique mission of 
the Department of Homeland Security (DHS). It outlines roles and 
responsibilities for compliance with NEPA, as well as other laws and 
requirements for stewardship of the environment. This directive 
establishes a framework for the balanced and systematic consideration 
of environmental stewardship in the planning and execution of DHS 
activities.
    DHS is composed of five major directorates and three services: 
Border and Transportation Security, Emergency Preparedness and 
Response, Science and Technology, Information Analysis and 
Infrastructure Protection, Management, and Bureau of Citizenship and 
Immigration Services, U.S. Coast Guard, and Secret Service. This 
organization resulted from a total of 22 Federal agencies that were 
brought together in March of 2003 and organized to form the new 
Department. DHS has the mission to lead the unified national effort to 
secure America. It has the responsibility to prevent and deter 
terrorist attacks and protect against and respond to threats and 
hazards to the Nation. As a part of this mission, DHS ensures safe and 
secure borders, facilitates lawful immigrants and visitors, and 
promotes the free flow of commerce among nations.
    The policies and procedures in the Management Directive place 
particular emphasis on the requirements of the project proponent to 
ensure that environmental stewardship requirements are appropriately 
integrated into the performance of DHS missions. Substantive or 
procedural requirements in this directive apply to the program planning 
and project development in all DHS directorates and organization 
elements. In particular, there is special consideration of the 
requirements for intergovernmental coordination, public involvement, 
dispute resolution, handling of sensitive information, and emergency 
procedures in DHS decisionmaking.
    This proposed management directive includes processes for preparing 
Environmental Assessments, Findings of No Significant Impact, and 
Environmental Impact Statements. The DHS proposes to use this directive 
in conjunction with NEPA, the CEQ regulations at 40 CFR parts 1500-
1508, and other pertinent environmental regulations, Executive Orders, 
statutes, and laws developed for the consideration of environmental 
impacts of Federal actions.
    This directive was established by reviewing the actions and 
existing regulations of all the elements that were integrated into the 
new department. Under the direction of the Office of Safety and 
Environment in the Management directorate, a panel of experts in 
environmental policy and law were drawn from the elements to prepare 
the new directive. This panel of experts worked for over 12 months to 
develop this draft directive.
    In preparing this directive, the panel of experts reviewed existing 
law and requirements, former agency policies, existing guidance on the 
implementation of NEPA from the Council on Environmental Quality, and 
the latest studies on the implementation of NEPA. In addition, they 
examined policies and procedures from other Federal agencies to 
identify policies that could be appropriate for the missions of the new 
Department.
    An area of emphasis included the development of appropriate 
categorical exclusions. Since DHS was brought together and organized 
around a core mission, many of the organizational elements are engaged 
in similar activities. Nearly all DHS component elements engage at 
various times in activities related to law enforcement, emergency 
response and recovery, screening and detection for dangerous or illegal 
materials or individuals, research and development of new systems or 
processes related to homeland security, and training exercises, among 
other things. These activities are performed in various environmental 
settings, for example both the Transportation Security Administration 
(TSA) and the Customs and Border Protection (CBP) screen packages for 
dangerous or illegal materials, but TSA works at airports while CBP 
works at borders. Many of the new elements of the Department came from 
agencies that had established categorical exclusions covering all or 
parts of their activities. These legacy categorical exclusions were 
evaluated for their broader applicability to similar missions and 
activities throughout the new Department. Likewise, the panel of 
experts examined existing categorical exclusions from other Federal 
departments to determine whether any might be adopted for DHS actions 
of a similar nature, scope, and intensity as those performed by other 
Federal agencies. The resulting list of proposed categorical exclusions 
in Attachment A of the Management Directive includes a large number 
that are applicable to all component elements of the DHS.

[[Page 33045]]

    In addition, the panel reviewed the history of environmental 
assessments and environmental impact statements and the administrative 
history of the legacy categorical exclusions in developing proposed 
categorical exclusions in Attachment A of the Management Directive. The 
resultant list of proposed categorical exclusions contains several that 
are specific to certain organizational elements of DHS. It is also 
important to note that the directive maintains those categorical 
exclusions previously established by both the Coast Guard and the 
Federal Emergency Management Agency.
    A copy of this Federal Register publication, as well as a summary 
of the administrative record for the list of categorical exclusions is 
available on the Internet at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0468.xml.
    The Department of Homeland Security solicits public review of this 
document and will review and consider those comments before this 
directive is final.

Tom Ridge,
Secretary.

Management Directive 5100.1, Environmental Planning Program

1. Purpose

    A. This directive establishes policy and procedures to ensure the 
integration of environmental considerations into Department of Homeland 
Security (DHS) mission planning and project decision making. 
Environmental stewardship, homeland security, and economic prosperity 
are compatible and complementary. This directive establishes a 
framework for the balanced and systematic consideration of these 
factors in the planning and execution of DHS activities.
    B. In particular, this directive establishes procedures that the 
DHS will use to comply with The National Environmental Policy Act 
(NEPA) of 1969 (42 U.S.C. 4321-4335) and the Council on Environmental 
Quality (CEQ) Regulations for Implementing the Procedural Provisions of 
NEPA (40 CFR parts 1500-1508). NEPA is the basic charter and foundation 
for stewardship of environmental resources in the United States. It 
establishes policy, sets goals, and provides a tool for carrying out 
federal environmental policy. NEPA requires federal agencies to use all 
practical means within their authority to create and maintain 
conditions under which people and nature can exist in productive 
harmony and fulfill the social, economic, and other needs of present 
and future generations of Americans.
    C. This directive provides the means for the DHS to follow the 
letter and spirit of NEPA and comply fully with the CEQ regulations. 
This directive adopts and supplements the CEQ regulations, and is to be 
used in conjunction with the CEQ regulations. However, this directive 
encompasses requirements in addition to NEPA and establishes the DHS 
Environmental Planning Program.

2. Scope

    A. Substantive or procedural requirements in this directive apply 
to all DHS elements and are to be used in all program planning and 
project development. This Directive applies to any DHS action with the 
potential to affect the quality of the environment of the United 
States, its territories, or its possessions. It also addresses those 
DHS actions having effects outside the United States, its territories, 
or its possessions under Executive Order 12114, Environmental Effects 
Abroad. More specifically, this Directive applies to:
    1. All areas of the DHS mission and operations planning
    2. Promulgation of regulations
    3. Acquisitions and procurements
    4. Asset management
    5. Research and development
    6. Grants programs

    B. This Directive supplements the regulations for implementing NEPA 
published by CEQ at 40 CFR Parts 1500 through 1508. In the case of any 
apparent discrepancies between these procedures and the mandatory 
provisions of the CEQ regulations, the CEQ regulations will govern.

3. Authorities

    This Directive is governed by numerous Public Laws, Regulations, 
and Executive Orders, such as, but not limited to:
    A. The National Environmental Policy Act (42 U.S.C. Sec.  4321 et. 
seq.)
    B. Environmental Quality Improvement Act of 1970, as amended (42 
U.S.C. Sec.  4321-4335)
    C. Marine Mammal Protection Act (16 U.S.C. Sec.  1361 et. seq.)
    D. The National Historic Preservation Act (16 U.S.C. Sec.  470 et. 
seq.)
    E. The Clean Air Act (16 U.S.C. Sec.  470 et. seq.)
    F. Federal Water Pollution Control Act (33 U.S.C. Sec.  1251 et. 
seq.)
    G. The Coastal Zone Management Act (16 U.S.C. Sec.  1451 et. seq.)
    H. Endangered Species Act (16 U.S.C. Sec.  1531 et. seq.)
    I. National Marine Sanctuaries Act (16 U.S.C. Sec.  1431 et. seq.)
    J. CEQ Regulations November 29, 1978 (43 FR 55978) as 40 CFR Parts 
1500-1508
    K. Executive Order 11514, Protection and Enhancement of 
Environmental Quality, March 5, 1970, 35 FR 4247, as amended by E.O. 
11991, May 24, 1977, 42 FR 26967
    L. Executive Order 11988, Floodplain Management, 42 FR 26971
    M. Executive Order 11990, Protection of Wetlands, 42 FR 26961
    N. Executive Order 12114, Environmental Effects Abroad of Major 
Federal Actions, 44 FR 1957
    O. Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629

4. Definitions

    A. All definitions of words and phrases in 40 CFR Part 1508 apply 
to this Directive.
    B. Additional definitions of words and phrases as used in this 
Directive are contained in Appendix A.

5. Responsibilities

    Responsibility for oversight of the DHS NEPA activities, unless 
otherwise delegated, is as follows:
    A. The Secretary of DHS (Secretary) recognizes the long term value 
of incorporating environmental stewardship into the planning and 
development of all the DHS missions and activities and exercises the 
ultimate responsibility in the Department to fulfill environmental 
planning requirements. To this end, the Secretary has delegated 
specific authority for environmental planning to the DHS Department 
Environmental Executive, the Chief of Administrative Services, the 
Director of Office of Safety and Environment, and to other DHS 
officials as set forth in this Directive. The following objectives are 
to be used in guiding environmental planning activities in the DHS:

    1. Timely and effective support
    2. Sustainable capability
    3. Consistency with fiscal and other considerations of national 
policy
    4. Full compliance with all appropriate environmental planning 
laws, Executive Orders, regulations, and other requirements, such as 
environmental management systems (EMS)
    B. The DHS Department Environmental Executive (DEE) is the DHS 
Undersecretary for Management and has authority to fulfill the 
Secretary's objectives by ensuring that the Department fully integrates 
environmental planning requirements into all the DHS missions and 
activities.

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The DEE recognizes that environmental planning is an important and 
necessary part of good management practice in the Department. To this 
end, the DEE has delegated specific authority for environmental 
planning to the Chief of Administrative Services, the Director of the 
Office of Safety and Environment, and to other DHS officials as set 
forth in this Directive. In exercising the authority delegated from the 
Secretary, the DEE will perform the following roles:
    1. Ensure that Under Secretaries and Designated DHS Officials 
incorporate environmental planning and stewardship requirements into 
their policies and procedures to fulfill the Secretary's objectives and 
the requirements of NEPA, the CEQ Regulations, this Directive, 
applicable Executive Orders, and other environmental planning 
requirements.
    2. Support budget requests to meet the requirements of this 
Directive.
    3. Consult, as needed, with Under Secretaries and Designated DHS 
Officials to ensure that they complete appropriate environmental 
planning for highly sensitive programs or actions that may require the 
attention of either the Deputy Secretary or the Secretary.
    4. Delegate requests for environmental planning related information 
received at the Departmental level to the Chief, Administrative 
Services for action.
    C. The Chief of Administrative Services (CAS) has authority to 
support the DEE in its efforts to promote good management practice by 
ensuring that the Department fully incorporates environmental planning 
requirements into all of the DHS missions and activities. To this end, 
the CAS has delegated specific authority for environmental planning to 
the Director of Office of Safety and Environment and to other DHS 
officials as set forth in this Directive. In exercising this authority, 
the CAS will perform the following:
    1. Advise the DEE, as needed, on all environmental planning matters 
in the Department.
    2. Establish, as needed, appropriate Department-wide policy, 
guidance, or training to enable the effective performance of 
environmental planning throughout the DHS.
    3. Recommend, as requested by the DEE, appropriate action on budget 
requests for environmental planning resources from Under Secretaries 
and Designated DHS Officials.
    4. Consult with Under Secretaries and Designated DHS Officials to 
ensure that their policies and procedures incorporate the requirements 
of this Directive.
    5. Direct, as needed, the performance of environmental planning 
activities within the DHS directorates and elements with particular 
emphasis on highly sensitive programs or actions that may require the 
attention of the senior executive levels of the Department.
    6. Advise the responsible Under Secretary or Designated DHS 
Official and, if appropriate, the Secretary, of a proposed action 
believed not to conform with the DHS policies or, after consulting with 
the General Counsel, applicable environmental laws and regulations.
    7. Coordinate requests for environmental planning related 
information received at the Departmental level among appropriate DHS 
elements or assign the request to the appropriate element for 
resolution.
    8. Approve new or revised supplementary procedures proposed by the 
DHS elements for the implementation of this Directive pursuant to the 
recommendations of the Director, Office of Safety and Environment.
    9. Grant a delegation authority to an Under Secretary or a DHS 
official to sign environmental documents pursuant to the 
recommendations of the Director, Office of Safety and Environment. 
Delegations that exist within the DHS at the time this Directive 
becomes effective (i.e., Coast Guard, Federal Emergency Management 
Agency, Customs and Border Protection, Immigration and Customs 
Enforcement, and Citizenship and Immigration Services) will remain in 
effect until they are updated or revoked.
    10. Revoke, as appropriate, a delegation of authority to a DHS 
Under Secretary or designated official.
    D. The Director, Office of Safety and Environment (DOSE) is 
designated by the Secretary as the DHS Environmental Planning 
coordinator and has oversight responsibilities for the management and 
direction of the Department-wide environmental planning program. The 
DOSE will support the CAS with advice and assistance in carrying out 
the responsibilities of that office as set forth in the above 
paragraph. Such advice and assistance will, at a minimum, consist of 
the following:
    1. Advise the CAS, as needed, on all environmental planning matters 
in the Department.
    2. Develop, as needed, appropriate Department-wide policy, 
guidance, or training to enable the consistent, timely, and effective 
performance of environmental planning throughout the Department to 
fulfill the Secretary's objectives and other requirements of this 
Directive.
    3. Evaluate for CAS, as requested, budget requests for 
environmental planning resources.
    4. Guide programs within the DHS elements to ensure that their 
policies, procedures, and actions fulfill the Secretary's objectives 
and the requirements of this Directive.
    5. Direct, as needed, the performance of environmental planning 
activities within the DHS elements, with particular emphasis on 
headquarters level programs or actions and those that have the interest 
of the CAS.
    6. Coordinate and respond to requests for environmental planning 
related information received at the Departmental level among 
appropriate DHS elements or assign the request to the appropriate 
directorate for resolution.
    7. Review environmental documents, public notices, and other 
related external communications that require a Departmental level 
approval prior to release by the project proponent. This includes all 
draft, final, and supplemental Environmental Impact Statements (EIS) 
originating in the Department prior to filing with EPA, unless 
otherwise delegated.
    8. Evaluate new or revised supplementary procedures for DHS 
elements for the implementation of this Directive or other 
environmental planning requirements that are proposed by an Under 
Secretary or Designated DHS Official under 5.F.8. DHS element 
supplemental procedures will only be recommended for approval after 
successfully completing DOSE level review, all necessary CEQ and public 
review requirements, and incorporating all appropriate comments and 
revisions.
    9. Evaluate requests for delegation of authority from an Under 
Secretary or a designated DHS Official to sign environmental documents. 
Such delegation shall only be recommended for approval if the requestor 
has both approved supplementary procedures and adequate staff resources 
to fulfill the Secretary's objectives and the requirements of this 
Directive. The adequacy of staff resources will involve an evaluation 
of knowledge and experience in fulfilling environmental planning 
requirements and preparing NEPA analyses and documentation sufficient 
to meet the Secretary's objectives. Requests for delegation of 
authority and supplementary procedures may be evaluated concurrently.
    10. Recommend revocation of a delegation of authority from an Under 
Secretary or a designated DHS Official for inappropriate procedures or

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inadequate staff resources to ensure full compliance with this 
Directive or other environmental planning requirements.
    11. Assist the DHS elements, as needed, in reviewing and assessing 
the environmental impacts of proposed DHS actions covered by Executive 
Order (EO) 12114.
    12. Discuss with CEQ any DHS requests for alternative arrangements 
or procedures to comply with NEPA and the CEQ regulations.
    13. Review and comment on EISs and NEPA analyses originating from 
agencies outside of the DHS relating to:
    (a) Actions with national policy implications relating to the DHS 
missions;
    (b) Legislation, regulations, and program proposals having a 
potential national impact on a DHS mission, and
    (c) Actions with the potential to encroach upon the DHS missions.
    14. Act as the principal point of contact for the DHS on 
environmental issues of DHS-wide applicability brought before the CEQ, 
the Office of Management and Budget, the Advisory Council on Historic 
Preservation, U.S. Environmental Protection Agency headquarters, and 
other federal agency headquarters.
    15. Perform other functions as are specified in this Directive or 
as are appropriate under NEPA, the CEQ Regulations, applicable 
Executive Orders, other environmental requirements, or other 
instructions or recommendations of CEQ or EPA concerning environmental 
matters.
    E. The General Counsel and/or Element Chief Counsel will:
    1. Provide legal sufficiency review, when appropriate, for all 
draft, final, and supplemental Environmental Assessments (EAs), 
Findings Of No Significant Impact (FONSIs), Environmental Impact 
Statements (EISs), and Records Of Decision (RODs).
    2. Advise proponents, in consultation with the EPC, whether a 
proposed element action is subject to the procedural requirements of 
NEPA.
    3. Advise proponents on compliance with NEPA, the CEQ Regulations, 
applicable Executive Orders, and other environmental planning 
requirements.
    4. Assist in establishing or revising Departmental or elements' 
NEPA procedures, including appropriate categorical exclusions.
    F. All Under Secretaries and Designated DHS Officials will:
    1. Fully integrate the requirements of this Directive into planning 
for all applicable programs, activities, and operations. Ensure that 
the planning, development, and execution of all their missions and 
activities conform to the guidance in this Directive, the requirements 
of NEPA, the CEQ Regulations, applicable Executive Orders, and other 
environmental planning requirements.
    2. Ensure that DHS proponents take the lead in environmental 
planning efforts and maintain an understanding of the potential 
environmental impacts of their programs and projects.
    3. Plan, program, and budget for the requirements of this Directive 
and Prepare and submit budget requests for adequate staff and resources 
to meet the requirements of this Directive.
    4. Support outreach processes for environmental planning.
    5. Coordinate with other DHS elements on environmental issues that 
affect them.
    6. Prepare and circulate environmental documents for the 
consideration of others when an action or policy area in question falls 
under their jurisdiction as required by 40 CFR Part 1506.9.
    7. Request the assistance of DOSE in preparing the environmental 
analysis for any actions covered by E.O. 12114 unless otherwise 
delegated.
    8. Propose to the CAS, for review and approval, any new or 
substantive revisions to existing supplementary procedures for the 
implementation of this Directive and other environmental planning 
requirements that the element deems necessary. All supplementary 
procedures will be consistent with this Directive and will be developed 
in accordance with the CEQ Regulations. Procedures revised solely to 
effect administrative changes or format issues do not need CAS and CEQ 
approval.
    (a) For those Undersecretaries and Designated DHS Officials with 
delegated authority to sign environmental documents, preparation of 
handbooks and other technical guidance for element personnel regarding 
NEPA implementation do not need CAS and CEQ approval.
    (b) The DHS elements, listed in paragraph 5.C.8, that have already 
developed -specific NEPA implementing procedures prior to becoming part 
of the DHS may continue to use those procedures. All revisions to 
supplementary procedures must be consistent with this Directive.
    9. Send all environmental documents via their respective 
organizational hierarchy, to the DOSE for review, prior to release to 
the public, unless otherwise delegated.
    10. For the DHS elements not listed in paragraph 5.C.8, Request 
from the CAS limited or unlimited delegation of authority to sign 
environmental documents. The request should include documentation 
demonstrating that the element has adequate staff resources with 
sufficient knowledge and experience in preparing NEPA analysis and 
documentation sufficient to ensure full compliance.
    11. Ensure that all external communications on environmental 
planning requirements related to matters with potential for department 
wide implications are coordinated with the DOSE and provide DOSE with a 
courtesy copy of all related formal communications. Unless otherwise 
delegated, ensure that all external communications on matters 
concerning the DHS compliance with environmental planning requirements 
that relate to controversial, high-visibility, classified, or sensitive 
actions are coordinated with the DOSE.
    12. Respond to requests for copies of environmental documents and 
reports or other information in connection with the implementation of 
NEPA.
    13. Designate an appropriate Environmental Planning Coordinator 
(EPC) and alternate in their respective element as a single point of 
contact for coordination with DOSE on relevant environmental planning 
matters.
    G. Environmental Planning Coordinators (EPCs) will:
    1. Act as a single point of contact for DOSE on all environmental 
planning matters.
    2. Inform key officials within their respective element of current 
developments in environmental policy and programs.
    3. Coordinate environmental planning strategies for matters within 
their respective element's purview.
    4. Act to further their respective element's compliance with the 
requirements of NEPA, the CEQ Regulations, this Directive, applicable 
Executive Orders, and other environmental requirements.
    5. Identify discretionary activities within their respective 
element and ensure that the requirements of this Directive are fully 
integrated into those activities.
    6. Work with their respective element proponents, as needed, to 
fulfill the requirements of this Directive and other environmental 
planning requirements. Consultation with proponents will involve the 
following objectives, at a minimum:
    (a) Ensure that appropriate environmental planning, including the 
analyses and documentation required by NEPA, is completed before the 
proponent makes a decision that has adverse environmental effects or 
limits the choices of alternatives to satisfy an

[[Page 33048]]

objective, fix a problem, or address a weakness.
    (b) Plan, program, and budget to meet the requirements of this 
Directive.
    (c) Support the execution of the requirements of this Directive.
    (d) Ensure that their respective DHS proponents are cognizant of 
the potential environmental impacts of their programs and projects.
    (e) Monitor the preparation and review of environmental planning 
efforts to ensure compliance with all applicable scheduling, scoping, 
consultation, circulation, and public involvement requirements.
    (f) Advocate and develop, as appropriate, agreements with federal, 
tribal, and state regulatory and/or resource agencies concerning NEPA 
and other environmental planning requirements.
    (g) Coordinate with other DHS elements on environmental issues that 
affect them.
    (h) Coordinate with DOSE in preparing the environmental analysis 
for any actions covered by E.O. 12114.
    7. Propose new categorical exclusions to DOSE.
    8. Support outreach processes for environmental planning.
    9. In consultation with the DOSE, define appropriate environmental 
training requirements for personnel within their respective element(s).
    H. The Project Proponent is the project or program manager. The 
proponent has the immediate authority to decide a course of action or 
has the authority to recommend a course of action, from among options, 
to the next higher organization level (e.g. district to region) for 
approval. He or she has the lead role in the environmental planning 
process and is responsible for meeting the following objectives, in 
consultation with the EPC:
    1. Ensuring that appropriate environmental planning, including the 
analyses and/or documentation required by NEPA is completed before a 
decision is made that limits the choices of alternatives to satisfy an 
objective, fix a problem, address a weakness, or develop a program.
    2. Preparing requests and or securing funding for environmental 
analysis and documentation in the budget process.
    3. Ensuring the quality of the analysis and the documentation 
produced in the environmental planning process.
    4. Ensuring that the project has adequate resources to complete all 
environmental analyses and documentation.
    5. Performing the necessary outreach and communication with 
appropriate Federal, tribal, state, local, and public interests.
    6. Ensuring that the project budget has sufficient resources to 
meet all mitigation commitments.
    7. Seeking technical assistance from the DOSE, as needed, through 
the appropriate lines of authority to ensure compliance with NEPA.

6. Policy

    A. Stewardship of the air, land, water, and cultural resources is 
compatible with and complementary to the planning and execution of the 
DHS missions. Environmental planning processes provide a systematic 
means of evaluating and fulfilling this aspect of DHS responsibility. 
The DHS will integrate environmental planning and management into 
homeland security operational planning, program development, and 
management methodologies consistent with homeland security 
requirements, fiscal policies, and other considerations of national 
policy.
    B. The DHS proponents will have the lead role in the environmental 
planning process. The DHS proponents will be cognizant of the impacts 
of their decisions on cultural resources, soils, forests, rangelands, 
water and air quality, fish, and wildlife, and other natural resources 
in the context of terrestrial and aquatic ecosystems. The DHS 
proponents will employ all practical means consistent with other 
considerations of national policy to minimize or avoid adverse 
environmental consequences and attain the goals and objectives stated 
in section 101 of NEPA.
    C. The DHS proponents will provide for adequate staff, funding, and 
time to perform NEPA analysis for DHS proposed actions, including those 
for programs, plans, policies, projects, regulations, orders, 
legislation or applications for permits, grants, licenses, etc. Should 
mitigation be necessary to reduce the environmental effects of a DHS 
proposed action, the proponent will be responsible for providing the 
costs of mitigation or ensuring that the applicant provides for 
mitigation.
    D. The DHS proponents will integrate the NEPA process with other 
DHS planning and project decision making activities and other 
environmental review requirements sufficiently early to:
    1. Ensure that mission planning, program development, and project 
decision making reflect the Secretary's objectives and the policies in 
this Directive, such as stewardship of resources effected by the DHS 
missions.
    2. Ensure that no action moves forward for funding or approval 
without the systematic and interdisciplinary examination of likely 
environmental consequences resulting from the proposed action and 
reasonable alternatives according to the policy and procedures in this 
Directive.
    3. Balance environmental concerns with mission requirements, 
technical requirements, and economic feasibility in decision making 
processes to ensure long-term sustainability of the DHS operations.
    4. Allow for appropriate communication, cooperation, and 
collaboration between the DHS, other government entities, the public, 
and non-governmental entities as an integral part of the NEPA process.
    E. The DHS Proponents will emphasize the quality analysis of the 
potential for environmental effects among alternative courses of action 
to meet mission needs and the development of strategies to minimize 
those effects. Documentation required under NEPA will be a summary of 
the effort to evaluate the environmental effects and the development of 
the minimization strategies. The depth of analysis and volume of 
documentation will be proportionate to the nature and scope of the 
action, and to the complexity and level of anticipated effects on 
important environmental resources. Documentation is necessary to 
present results of the analysis, but the objective of NEPA and the DHS 
NEPA policy is quality analysis to support DHS decisions, not the 
production of documents.
    F. The DHS proponent, in consultation with the EPC, will determine 
the level of NEPA analysis required for the proposed action. The DHS 
proponents will complete their NEPA analysis and review for each DHS 
proposed action before making a final decision on whether to proceed 
with the proposed action. No action or portion of an action, covered by 
a ROD or FONSI, will be taken that limits reasonable alternatives, 
involves a conflict of resource use, or has an adverse environmental 
effect until the final decision as justified in the ROD or FONSI has 
been made public. No actions or portions of an action covered by a CE 
that requires a Record of Environmental Consideration (REC) will be 
taken until the REC is completed.
    G. Laws other than NEPA that require the DHS to obtain or confirm 
the approval of other federal, tribal, state, or local government 
agencies before taking actions that are subject to NEPA, will be 
integrated into the NEPA process at the earliest possible stage and to 
the fullest extent possible. However, compliance with other 
environmental laws does not

[[Page 33049]]

relieve the proponent from preparing environmental impact analyses and 
processing necessary environmental documents. NEPA compliance is 
required unless another law, applicable to a specific action or 
activity, prohibits, conflicts with, or exempts compliance.

7. Procedures

    A. Attachment A contains specific procedures for the application of 
environmental planning requirements to the DHS consistent with the 
Secretary's objectives and the policies in this Directive.
    B. A DHS element with delegation under section 5.C.9 may also 
develop its own supplemental procedures. DHS element-specific 
procedures will be immediately effective upon approval of CAS and may 
be disseminated within the DHS element, even before this Directive is 
revised to include them. A DHS element with approved supplemental 
procedures may use them in addition to the procedures in this 
instruction.
    C. The DHS elements with approved supplemental procedures under 
5.C.8 may use the categorical exclusions listed in their approved 
procedures and as indicated in this Directive. DHS elements may not use 
the categorical exclusions listed in another DHS element's or any other 
federal agency's specific procedures.
    D. The CAS may revoke all or part of an element delegation and any 
implementing procedures. No element will be given approval of 
implementing procedures unless they also have received complete 
delegation authority.
    E. The DHS elements may prepare handbooks or other technical 
guidance for their personnel on how to apply these procedures to their 
programs.
    F. Any questions or concerns regarding this Directive should be 
addressed to the Director, Office of Safety and Environment.

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

Table of Contents

Introduction
1.0 General Policies and Provisions
    1.1 Up Front Planning
    Figure 1: The NEPA Decision Making Process
    1.2 Ongoing Administration
    1.3 Follow Through Monitoring and Mitigation (1505.3)
    1.4 Dispute Resolution
    Figure 2: Dispute Resolution Flowchart

2.0 Intergovernmental Collaboration and Public Involvement
    2.1 Purpose
    2.2 Scoping (1501.7)
    2.3 Coordination with Other Government Agencies
    2.4 Lead Agencies (1501.5)
    2.5 Cooperating Agencies (1501.6)
    2.6 Public Involvement (1506.6)
    2.7 Review of Other Agencies' Analysis and Documents
3.0 Categorical Exclusions (1507.3(b)(2)(ii))12
    3.1 Purpose
    3.2 Conditions and Extraordinary Circumstances (1508.4)
    3.3 List of Categorically Excludable Actions

    Table 1: Categorical Exclusions
4.0 Environmental Assessments
    4.1 When to Use
    4.2 Actions Normally Requiring an EA or a Programmatic EA 
(1501.3, 1508.9)
    4.3 Decision Document: Finding of No Significant Impact (FONSI) 
(1508.13)
    4.4 Supplemental EAs

5.0 Environmental Impact Statements (EISs)
    5.1 When to Use
    5.2 Actions Normally Requiring an EIS (1501.4), a Programmatic 
EIS, or a Legislative EIS (1506.8)
    5.3 Preparation and Filing (1506.9)
    5.4 Combining Documents
    5.5 Supplemental EISs (1502.9)
    5.6 Proposals for Legislation (1506.8)
    5.7 Decision Document: Record of Decision (ROD) (1505.2)
    5.8 Review of Other Agencies' EISs

6.0 Special Circumstances
    6.1 Emergencies (1506.11)
    6.2 Classified or Protected Information (1507.3(c))
    6.3 Procedures for Applicants (1501.2, 1506.5)
Appendix A: Definitions

Introduction

    This Attachment provides guidance for timely and effective 
environmental planning and includes supplementary instructions for 
implementing the NEPA process in the DHS. The numbers in parentheses 
signify the relevant citation in the CEQ Regulations. The DHS and its 
elements will use NEPA as a strategic planning tool, not a 
documentation exercise. The DHS is committed to using all of the tools 
at its disposal to ensure timely and effective environmental planning 
and implementation of the NEPA process.

1.0 General Policies and Provisions

    Timely and effective environmental planning involves a systematic 
process to identify and evaluate the potential for significant 
environmental effects from a proposed DHS action. Proponents of 
programs and activities within the DHS have a major role in this 
process. This process and the guidance in this Directive are designed 
to focus effort on those types of actions with the most potential for 
significant environmental effects. The process involves three levels of 
evaluation effort as shown in Figure 1: Categorical exclusion; 
environmental assessment; and environmental impact statement. These 
levels of effort reflect increasing potential for significant 
environmental effects. It is expected that the majority of proposed DHS 
actions will be able to be evaluated through categorical exclusions or 
environmental assessments. Fewer DHS actions are likely to require an 
EIS, but those with the greatest potential to impact natural resources 
and the human environment will likely require an environmental impact 
statement.
1.1 Up Front Planning Activities
    A. Continually assess environmental planning in the DHS to improve 
its effectiveness in supporting and enabling departmental missions.
    B. Adapt environmental planning goals and requirements to 
complement the DHS mission requirements.
    C. Fully integrate NEPA and other environmental planning goals and 
requirements into internal element program planning and decision making 
processes and formal direction.
    D. Ensure that environmental planning staffs are located within the 
DHS organization where they can function as effective members of 
interdisciplinary planning and project teams.
    E. Enable effective environmental planning through appropriate 
training, education, and interagency support relationships.
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1.2 Ongoing Administration
    A. Ensure that appropriate environmental planning, including the 
analyses and documentation required by NEPA, is completed before the 
proponent makes a decision that limits the choice of alternatives to 
satisfy an objective, fix a problem, or address a weakness.
    B. Integrate all other environmental and planning reviews 
concurrently, rather than sequentially, with the NEPA process.
    C. Use the scoping and public involvement processes to limit the 
analysis of issues to those that are important to the decision making 
at hand.
    D. Share information with and coordinate with other federal, 
tribal, state, and local agencies early in the planning process and 
integrate planning responsibilities with other agencies and 
governments.
    E. Take into account the views of the surrounding community and 
other interested members of the public during its planning and decision 
making process.
    F. Offer cooperating agency status to other federal, tribal, state, 
and local agencies that have special expertise or jurisdiction by law.
    G. Base all environmental impact analyses, development of 
monitoring requirements, and mitigation requirements on sound science.
    H. Make maximum use of programmatic analyses and tiering of 
environmental planning efforts to provide relevant environmental 
information at the appropriate element decision levels, eliminate 
repetitive analyses and discussion, ensure proper consideration of 
cumulative effects, and focus on issues that are important to the 
decision being made.
    I. Review any relevant planning and decision making documents, 
whether prepared by the DHS or another agency, to determine if the DHS 
proposed action or application or any of their alternatives has been 
considered in a prior NEPA analysis. If so, the DHS will consider 
adopting the existing analyses, or any pertinent part thereof, in 
accordance with 40 CFR 1506.3. Adopted environmental impact analyses of 
others may be revised or supplemented as needed to serve the DHS 
purposes.
    J. Incorporate material by reference to reduce unnecessary 
paperwork without impeding public review. The referenced material must 
be reasonably available for public review within the time allowed for 
comment.
    K. Update the list of categorical exclusions to ensure that the DHS 
environmental planning resources remain focused on those activities 
with the most potential for significant effects.
1.3 Follow Through--Monitoring and Mitigation (1505.3)
    A. Only those practical mitigation measures that can reasonably be 
accomplished as part of a proposed alternative will be identified. Any 
mitigation measures selected by the proponent will be clearly outlined 
in the NEPA decision document and will be included in the budget of the 
internal DHS project or made a part of the approved application from 
external entities.
    B. Use best management practices, such as environmental monitoring 
systems, to implement a project and monitor the predicted environmental 
effects. Using adaptive management techniques, adapt the implementation 
of a project as new information becomes available.
    C. Budget for mitigation. The proponent will ensure funding to 
implement mitigation commitments or ensure that external applicants 
provide for mitigation funding in their proposal prior to approval by 
the DHS.
    D. Implement mitigation. Ensure that all mitigation commitments in 
the ROD or FONSI are implemented.
    E. Monitor Results. Monitoring of the expected environmental 
effects from DHS projects, including appropriate indicators of 
effectiveness, is an integral part of any mitigation system. The 
proponent is responsible for ensuring monitoring during mitigation, 
where necessary, to ensure that the final decision justified in the ROD 
or FONSI is implemented. For external applicants, the proponent is 
responsible for ensuring that the applicant provides for monitoring. 
The proponent is responsible for responding to inquiries from the 
public or other agencies regarding the status of mitigation measures 
adopted in the NEPA process.
1.4[emspace]Dispute Resolution
    During the NEPA process, a DHS proponent and another federal agency 
may not agree on significant issues or aspects of the process. When 
these situations arise, the proponent will provide the other federal 
agency with written notification, using certified mail or a comparable 
method, detailing the nature of the disagreement. The proponent will 
attempt to resolve the dispute within 30 working days of notification, 
using Alternative Dispute Resolution or a similar mechanism. If dispute 
negotiations fail, the proponent must notify the other federal agency 
in writing, with a copy sent to the DHS element HQ, that an agreement 
is unlikely and the project or operation is jeopardized. From the date 
of that letter, the DHS element HQ will initiate 30 additional working 
days of negotiations. If after 30 working days, the DHS element HQ has 
not resolved the issue, it will be forwarded to the DEE. The DEE may 
appoint a negotiating team and/or seek Council on Environmental Quality 
(CEQ) support in informal dispute resolution. Figure 2 provides a 
diagram of this process. The DHS elements have the option to use the 
Institute for Environmental Conflict Resolution, a federally-chartered 
mediation group based in Tucson, Arizona. In rare instances another 
agency may independently refer a DHS EIS to CEQ for formal dispute 
resolution. Upon receipt of advice that another federal agency intends 
to refer a Departmental matter to CEQ, the DHS lead element will 
immediately notify and consult with the DOSE.

2.0 Intergovernmental Collaboration and Public Involvement

2.1 Purpose
    Open communication, consistent with other Federal requirements, is 
the DHS policy. The purpose of this policy is to build trust between 
the DHS and the communities it serves. Collaboration with other 
federal, tribal, state, and local agencies, as well as non-governmental 
organizations (NGOs) and the general public assists in identifying 
important issues in the environmental planning process. In many cases, 
these governments have expertise not available in the DHS or they may 
have authorities and obligations to protect specific resources.
    The appropriate involvement of relevant organizations and citizens 
early in environmental planning is an effective means to focus 
environmental planning efforts on issues that are of most interest to 
the public and importance to the relevant DHS decision. Collaboration, 
through meaningful and regular dialogue with those outside of the DHS 
can also serve to avoid conflicts and facilitate resolution when 
conflicts occur. Other organizations and citizens play an important 
role in protection of resources and their communities. Awareness and 
consideration of the needs and requirements of other organizations and 
the general public, consistent with mission requirements, will enhance 
the effectiveness of the DHS missions.
2.2 Scoping (1501.7)
    A. Scoping is a process for taking into account the views of the 
surrounding

[[Page 33052]]

community and other interested parties during planning and decision 
making processes. It helps managers set the boundaries of the 
environmental evaluation and is an effective means to limit the 
analysis of issues to those that are of interest to the public and/or 
important to the decision making at hand. Scoping is a process that 
starts early and continues throughout the planning and early stages of 
conducting a NEPA analysis.
    B. When the DHS is the lead agency, it is responsible for the scope 
of the NEPA analysis.
    C. Scoping is required for EISs and strongly encouraged for EAs.

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2.3 Coordination with Other Government Agencies, States, and Tribes
    The DHS policy is to seek out and coordinate with other federal 
departments and agencies, tribal, state, and local governments, non-
governmental organizations, and the general public early in the 
environmental planning process. In many cases, these organizations have 
expertise not available in the DHS or they may have authorities and 
obligations to protect specific resources.
    A. Where an agency has special expertise or jurisdiction by law, 
the DHS proponent should invite and encourage the federal, state, or 
tribal governmental agency to be a cooperating agency.
    B. When another agency has expertise to analyze the potential 
environmental effect of a DHS proposal, the proponent will coordinate 
early to ensure high quality and complete analysis.
    C. The DHS will coordinate draft environmental impact analyses with 
appropriate federal, state and tribal governments, as well as other 
interested parties.
    D. Among the various Federal agencies that can be involved in an 
environmental planning effort, EPA has a special role. Section 309 of 
the Clean Air Act provides the Administrator of EPA with authority to 
review and comment in writing on the environmental impact of any matter 
relating to the environment contained in any authorized federal 
projects for construction and any major federal agency action for which 
NEPA applies. At a minimum, the DHS proponents must ensure that their 
EISs are appropriately coordinated with the EPA.
2.4 Lead Agencies (1501.5)
    The lead agency in an environmental planning process has the 
responsibility to define the scope and substance of the environmental 
planning effort.
    A. The DHS will be the lead agency when a proposed action is 
clearly within the province of the DHS authority. Likewise, an Under 
Secretary or designated DHS official will seek to form a joint-lead 
relationship, when another agency has initiated an action within the 
province of the DHS authority or has a significant responsibility 
regarding the action.
    B. Unless otherwise delegated, the Department will designate lead 
elements within the DHS when more than one element could be involved 
and will represent the Department in consultations with CEQ or other 
federal entities in the resolution of lead agency determinations.
    C. To eliminate duplication with state and local procedures, a non-
federal agency may be designated as a joint lead agency when an element 
has a duty to comply with state or local requirements that are 
comparable to the NEPA requirements.
2.5 Cooperating Agencies (1501.6)
    Other federal, tribal, or state agencies may share a role in the 
planning and execution of a DHS mission. Likewise, these agencies often 
have specialized expertise or authorities in environmental planning 
requirements that can be of benefit to the DHS mission planning.
    A. The Department, when requested, will coordinate and assist 
requests from non-Department agencies in determining cooperating agency 
status.
    B. Any federal, tribal, state, or local government entity with 
special expertise or jurisdiction may be a cooperating agency by 
agreement, and elements of the Department are urged to use this 
process.
2.6 Public Involvement (1506.6)
    The DHS believes that public involvement early in the NEPA analysis 
process will help produce better decisions. The DHS also believes that 
the public and NGOs play an important role in the protection of 
resources. The DHS will encourage early and open public involvement in 
proposals. Open communication with the American public, consistent with 
other federal requirements, is the DHS policy.
    A. Environmental Assessments. While the proponent is encouraged to 
provide public involvement in EAs, the proponent has discretion 
regarding the type and level of public involvement in EAs (See Section 
4.0). The guidance under the following section for EISs may be useful 
for EAs as well. Factors to be weighed include:
    (1) Magnitude of the proposed project/action and impacts.
    (2) Extent of anticipated public interest, based on experience with 
similar proposals.
    (3) Urgency of the proposal.
    (4) National security classification.
    (5) The presence of minority or economically-disadvantaged 
populations that may be impacted.
    B. Environmental Impact Statements. CEQ regulations mandate 
specific public involvement steps in the EIS. Elements will:
    (1) Provide for appropriate public involvement. Public involvement 
must begin early in the proposal development stage, and during 
preparation of an EIS. The direct involvement of other agencies and 
state, local and tribal governments with jurisdiction or special 
expertise is an integral part of impact analysis, and provides 
information and conclusions for incorporation into EISs. Information 
obtained from public involvement efforts can help to focus 
environmental analysis effort on the impacts with the most potential 
for significance. A public meeting may be appropriate. The need for a 
formal public hearing should be determined in accordance with the 
criteria set forth in 40 CFR Part 1506.6(c).
    (2) Provide public notice of NEPA-related hearings, public 
meetings, and the availability of environmental documents. The notice 
should be provided by effective and efficient means most likely to 
inform those persons and agencies that may be interested or affected, 
including minority populations and low-income populations. Special 
outreach efforts should be made to identify affected minority 
populations and low-income populations. Public notices for 
controversial, high-visibility, classified, or sensitive issues should 
be cleared with the DEE prior to publication.
    (3) Tailor the methods to reach the audience of concern. Make every 
effort to make materials available and accessible to affected or 
interested populations. Special outreach efforts may be needed to reach 
affected tribes and minority populations and low-income populations. 
Translation may be required to reach limited-English speakers. 
Additionally, elements are encouraged to use electronic means to 
provide access to and distribution of environmental planning 
information and NEPA documents.
2.7 Review of Other Agencies' Analysis and Documents
    A. The DHS elements should review and comment on other agencies' 
environmental analysis and documents when requested or when the 
proposed action may impact the DHS mission, operations, or facilities.
    B. Comments should be confined to matters within the jurisdiction 
or expertise of the Department. However, comments need not be limited 
to environmental aspects, but may relate to security, immigration, 
enforcement, and other matters of concern to the Department.
    C. If a DHS element intends to issue formal adverse comments on a 
non-DHS agency's analysis or document, the matter should be coordinated 
with DOSE prior to issuing the comments.

[[Page 33055]]

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

    This Chapter establishes the DHS categorical exclusions (CEs) and 
provides instructions for their implementation.
3.1 Purpose
    A. CEQ regulations (1508.4) provide for federal agencies to 
establish categories of actions that based on experience do not 
individually or cumulatively have a significant impact on the human 
environment and, therefore do not require an Environmental Assessment 
(EA) or Environmental Impact Statement (EIS). These CEs allow the DHS 
elements to avoid unnecessary analysis, process, and paperwork and 
concentrate their resources on those proposed actions having real 
potential for environmental concerns.
    B. An element may decide in its procedures or otherwise, to prepare 
environmental assessments for the reasons stated in CEQ regulations 
(1508.9) even though it is not required to do so.
    C. All requests to establish, substantively revise, or delete CEs 
(along with justification) will be forwarded through the elements to 
the DOSE for review and comment, unless otherwise delegated. New or 
substantively modified CEs are subject to CEQ review and public comment 
before they will be available for use. Securing approval from both the 
DOSE and CEQ and promulgation remain the responsibility of the DHS 
element.
3.2 Conditions and Extraordinary Circumstances (1508.4)
    For an action to be categorically excluded, the DHS element must 
satisfy each of the following three conditions. Proponents must involve 
the EPC in evaluating these conditions. If the proposed action does not 
meet these conditions or a statute or emergency provision does not 
exempt it, an EA or an EIS must be prepared before the action may 
proceed. Where it may not be clear whether a proposed action will meet 
these conditions, the proponent must ensure that the administrative 
record reflects consideration of these conditions. Certain categorical 
exclusions require documentation of the consideration of these 
conditions in the form of a Record of Consideration.
    A. Clearly Fits the Category. The entire action clearly fits within 
one or more of the categories of excludable actions listed in Section 
4.3 and/or in individual element's categorical exclusions. An element 
should not use a CE for an action with significant impacts whether they 
are beneficial or adverse.
    B. Is Not A Small Piece of a Larger Action. The scope of the action 
has not been segmented. Segmentation can occur when an action or 
connected actions are broken into smaller parts in order to avoid the 
appearance of significance of the total action and thus reduce the 
level of NEPA review required. For purposes of NEPA, actions must be 
considered in the same review if the actions are connected and 
interdependent, such as: where one action triggers or forces another; 
where one action depends on another; or where actions have the 
potential for effects that would be cumulative.
    C. No Extraordinary Circumstances Exist. No extraordinary 
circumstances with potentially significant impacts relating to the 
proposed action exist. Extraordinary circumstances are unique 
conditions that are associated with the potential for significant 
impacts. Specific actions that might otherwise be categorically 
excluded, but are associated with one or more extraordinary 
circumstances, should be carefully evaluated to determine whether a CE 
is appropriate. A determination of whether an action that is normally 
excluded requires additional analysis must focus on the action's 
potential effects and the environmental significance in context 
(whether local, state, regional, tribal, national, or international) 
and in intensity. This determination is made by considering whether the 
action is likely to involve one or more of the following circumstances:
    (1) A potentially significant effect on public health or safety.
    (2) A potentially significant effect on species or habitats 
protected by the Endangered Species Act, Marine Mammal Protection Act, 
or Magnuson-Stevens Fishery Conservation and Management Act.
    (3) A potentially significant effect on a district, site, highway, 
structure, or object that is listed in or eligible for listing in the 
National Register of Historic Places, affects a historic or cultural 
resource or traditional and sacred sites, or the loss or destruction of 
a significant scientific, cultural, or historical resource.
    (4) A potentially significant effect on a unique characteristic of 
the geographic area, such as park land, prime farmland, wetland, 
floodplain, coastal zone, or a wild and scenic river, sole or principal 
drinking water aquifers, or an ecologically critical area.
    (5) A potential or threatened violation of a federal, state, or 
local law or administrative determination imposed for the protection of 
the environment. Some examples of administrative determinations to 
consider are a local noise control ordinance; the requirement to 
conform to an applicable State Implementation Plan (SIP); and federal, 
state, or local requirements for the control of hazardous or toxic 
substances.
    (6) An effect on the quality of the human environment that is 
likely to be highly controversial in terms of scientific validity, 
likely to be highly uncertain, likely to involve unique or unknown 
environmental risks.
    (7) Employment of new technology or unproven technology that is 
likely to involve unique or unknown environmental risks, where the 
effect on the human environment is likely to be highly uncertain, or 
where the effect on the human environment is likely to be highly 
controversial in terms of scientific validity.
    (8) A precedent is set that forecloses future options that have 
significant effects.
    (9) Significantly greater scope or size than normally experienced 
for a particular category of action.
    (10) Potential for significant degradation of already existing poor 
environmental conditions. Also, initiation of a potentially significant 
environmental degrading influence, activity, or effect in areas not 
already significantly modified from their natural condition.
3.3 List of Categorically Excludable Actions
    A. Table 1 is a list of Categorical Exclusions, those activities 
which normally require no further NEPA analysis. Proponents, in 
consultation with their EPC, should be alert for the presence of those 
extraordinary circumstances listed in section 3.2 of this attachment. 
These categorical exclusions were developed on the basis of an 
administrative record from the elements that comprise the new 
department, from professional staff and expert opinion, and/or past 
NEPA analyses. The DHS CEs are divided into the following functional 
groupings of activities conducted by the DHS elements in fulfilling the 
Department mission:

(1) Administrative and Regulatory Activities
(2) Operational Activities
(3) Real Estate Activities
(4) Repair and Maintenance Activities
(5) Construction, Installation, and Demolition Activities
(6) Hazardous/Radioactive Materials Management and Operations

[[Page 33056]]

(7) Training and Exercises
(8) Categorical Exclusions for specific DHS elements
    B. Activities that involve greater potential for environmental 
effect require a Record of Environmental Consideration (REC) to justify 
the use of the CE. These activities are marked with an asterisk. A REC 
is a means of documenting whether the conditions listed in 3.2 A, B, 
and C are met. The DOSE will sign all RECs unless signature authority 
has been delegated to the element. The REC will normally not exceed two 
pages.

                    Table 1.--Categorical Exclusions
------------------------------------------------------------------------
            CE
------------------------------------------------------------------------
               ADMINISTRATIVE AND REGULATORY ACTIVITIES\1\
------------------------------------------------------------------------
A1................................  Personnel, fiscal, management, and
                                     administrative activities, such as
                                     recruiting, processing, paying,
                                     recordkeeping, resource management,
                                     budgeting, personnel actions, and
                                     travel.
A2................................  Reductions, realignments, or
                                     relocation of personnel that do not
                                     result in exceeding the
                                     infrastructure capacity or change
                                     the use of space. An example of a
                                     substantial change in use of the
                                     supporting infrastructure would be
                                     an increase in vehicular traffic
                                     beyond the capacity of the
                                     supporting road network to
                                     accommodate such an increase.
A3................................  Promulgation of rules, issuance of
                                     rulings or interpretations, and the
                                     development and publication of
                                     policies, orders, directives,
                                     notices, procedures, manuals,
                                     advisory circulars, and other
                                     guidance documents of the following
                                     nature:
                                    (a) Those of a strictly
                                     administrative or procedural
                                     nature;
                                    (b) Those that implement, without
                                     substantive change, statutory or
                                     regulatory requirements;
                                    (c) Those that implement, without
                                     substantive change, procedures,
                                     manuals, and other guidance
                                     documents;
                                    (d) Those that interpret or amend an
                                     existing regulation without
                                     changing its environmental effect;
                                    (e) Technical guidance on safety and
                                     security matters; or
                                    (f) Guidance for the preparation of
                                     security plans.
A4................................  Information gathering, data analysis
                                     and processing, information
                                     dissemination, review,
                                     interpretation, and development of
                                     documents, that involves no
                                     commitment of resources or
                                     recommendations for future
                                     commitments of resources other than
                                     the associated manpower and
                                     funding. Examples include but are
                                     not limited to:
                                    (a) Document mailings, publication
                                     and distribution, and training and
                                     information programs, historical
                                     and cultural demonstrations, and
                                     public affairs actions.
                                    (b) Studies, reports, proposals,
                                     analyses, literature reviews;
                                     computer modeling; and other non-
                                     intrusive intelligence gathering
                                     activities.
A5................................  Contingency planning and
                                     administrative activities in
                                     anticipation of emergency and
                                     disaster response and recovery.
                                     Examples include response plans,
                                     protocols for use of suppressants,
                                     etc.
A6................................  Awarding of contracts for technical
                                     support services, ongoing
                                     management and operation of
                                     government facilities, and
                                     professional services that do not
                                     involve unresolved conflicts
                                     concerning alternative uses of
                                     available resources.
A7................................  Procurement of non-hazardous goods
                                     and services, and storage,
                                     recycling, and disposal of non-
                                     hazardous materials and wastes,
                                     that complies with applicable
                                     requirements and that is in support
                                     of routine administrative,
                                     operational, maintenance
                                     activities. Storage activities must
                                     occur on previously disturbed land
                                     or in existing facilities. Examples
                                     include but are not limited to:
                                    (a) Office supplies.
                                    (b) Equipment.
                                    (c) Mobile assets.
                                    (d) Utility services.
                                    (e) Chemicals and low level radio
                                     nuclides for analytical testing and
                                     research.
                                    (f) Deployable emergency response
                                     supplies and equipment.
                                    (g) Waste disposal and contracts for
                                     waste disposal in permitted
                                     landfills or other authorized
                                     facilities..
A8................................  The commitment of resources,
                                     personnel, and funding to conduct
                                     audits, surveys, and data
                                     collection of a minimally intrusive
                                     nature. Examples include, but are
                                     not limited to:
                                    (a) Activities designed to support
                                     the improvement or upgrade
                                     management of natural resources,
                                     such as surveys for threatened and
                                     endangered species, wildlife and
                                     wildlife habitat, historic
                                     properties, and archeological
                                     sites; wetland delineations; timber
                                     stand examination; minimal water,
                                     air, waste, material and soil
                                     sampling; audits, photography, and
                                     interpretation.
                                    (b) Minimally-intrusive geological,
                                     geophysical, and geo- technical
                                     activities, including mapping and
                                     engineering surveys.
                                    (c) Site characterization studies
                                     and environmental monitoring,
                                     including siting, construction,
                                     operation, and dismantling or
                                     closing of characterization and
                                     monitoring devices, Facility
                                     Audits, Environmental Site
                                     Assessments, and Environmental
                                     Baseline Surveys.
                                    (d) Vulnerability, risk, and
                                     structural integrity assessments of
                                     infrastructure.
-----------------------------------
                         OPERATIONAL ACTIVITIES
------------------------------------------------------------------------
B1................................  Research, development, testing, and
                                     evaluation activities, or
                                     laboratory operations conducted
                                     within existing enclosed facilities
                                     consistent with previously
                                     established safety levels and in
                                     compliance with federal, tribal,
                                     state, and local requirements to
                                     protect the environment when it
                                     will result in no, or de minimus
                                     change in the use of the facility.
                                     If the operation will substantially
                                     increase the extent of potential
                                     environmental impacts or is
                                     controversial, an EA (and possibly
                                     an EIS) is required.
B2................................  Transportation of personnel,
                                     detainees, equipment, and
                                     evidentiary materials in wheeled
                                     vehicles over existing roads or
                                     established jeep trails, including
                                     access to permanent and temporary
                                     observation posts.
B3................................  Proposed activities and operations
                                     to be conducted in an existing
                                     structure that would be compatible
                                     with and similar in scope to its
                                     ongoing functional uses and would
                                     be consistent with previously
                                     established safety levels and in
                                     compliance with federal, tribal,
                                     state, and local requirements to
                                     protect the environment.
B4................................  Provision of on-site technical
                                     assistance to non-DHS organizations
                                     to prepare plans, studies, or
                                     evaluations or to conduct training
                                     at sites currently used for such
                                     activities, Examples include, but
                                     are not limited to:
                                    (a) General technical assistance to
                                     assist with development and
                                     enhancement of Weapons of Mass
                                     Destruction (WMD) response plans,
                                     exercise scenario development and
                                     evaluation, facilitation of working
                                     groups, etc.

[[Page 33057]]

 
                                    (b) State strategy technical
                                     assistance to assist states in
                                     completing needs and threat
                                     assessments and in developing their
                                     domestic preparedness strategy.
                                    (c) Training on use, maintenance,
                                     calibration, and/or refurbishing of
                                     specialized equipment.
B5................................  Support for community participation
                                     projects. Examples include, but are
                                     not limited to:
                                    (a) Earth Day activities.
                                    (b) Adopting schools.
                                    (c) Cleanup of rivers and parkways.
                                    (d) Repair and alteration of
                                     housing.
B6................................  Approval of recreational or public
                                     activities or events at a location
                                     typically used for that type and
                                     scope (size and intensity) of that
                                     activity. Examples include, but are
                                     not limited to:
                                    (a) Picnics.
                                    (b) Encampments.
                                    (c) Interpretive programs for
                                     historic and cultural resources,
                                     such as programs in conjunction
                                     with State and Tribal Historic
                                     Preservation Officers, or with
                                     local historic preservation or re-
                                     enactment groups.
B7................................  Realignment or initial home porting
                                     of mobile assets, including
                                     vehicles, vessels and aircraft, to
                                     existing operational facilities
                                     that have the capacity to
                                     accommodate such assets or where
                                     supporting infrastructure changes
                                     will be minor in nature to perform
                                     as new homeports or for repair and
                                     overhaul.
B8*...............................  Acquisition, installation,
                                     maintenance, operation, evaluation,
                                     removal, or disposal of security
                                     equipment to screen for or detect
                                     dangerous or illegal individuals or
                                     materials at existing facilities.
                                     Examples include, but are not
                                     limited to:
                                    (a) Low-level x-ray devices.
                                    (b) Cameras and biometric devices.
                                    (c) Passive inspection devices.
                                    (d) Detection or security systems
                                     for explosive, biological, or
                                     chemical substances.
                                    (e) Access controls, screening
                                     devices, and traffic management
                                     systems.
B9*...............................  Acquisition, installation,
                                     maintenance, operation, evaluation,
                                     removal, or disposal of target
                                     hardening security equipment,
                                     devices, or controls to enhance the
                                     physical security of existing
                                     critical assets to include, but not
                                     limited to:
                                    (a) Motion detection systems.
                                    (b) Temporary use of barriers,
                                     fences, and jersey walls on or
                                     adjacent to existing facilities.
                                    (c) Impact resistant doors and
                                     gates.
                                    (d) X-ray units.
                                    (e) Remote video surveillance
                                     systems.
                                    (f) Diver/swimmer detection systems
                                     except sonar.
                                    (g) Blast/shock impact-resistant
                                     systems.
                                    (h) Column and surface wraps.
                                    (i) Breakage/shatter-resistant
                                     glass.
B10...............................  Existing aircraft operations
                                     conducted in accordance with normal
                                     flight patterns and elevations.
                                     This categorical exclusion
                                     encompasses the actions of many
                                     component elements of the DHS
                                     during training and emergency
                                     response and recovery efforts, but
                                     would primarily be used by the
                                     elements of Coast Guard and Border
                                     and Transportation Security in
                                     their daily activities.
B11...............................  Identifications, inspections,
                                     surveys, or sampling, testing,
                                     seizures, quarantines, removals,
                                     sanitization, and monitoring of
                                     imported products and that cause
                                     little or no physical alteration of
                                     the environment. This categorical
                                     exclusion would primarily encompass
                                     a variety of daily activities
                                     performed at the borders and ports
                                     of entry by various elements of the
                                     Border and Transportation Security
                                     Directorate.
B12...............................  Routine monitoring and surveillance
                                     activities that support law
                                     enforcement or homeland security
                                     and defense operations, such as
                                     patrols, investigations, and
                                     intelligence gathering, but not
                                     including any construction
                                     activities except those set forth
                                     in subsection F of these
                                     categorical exclusions. This
                                     categorical exclusion would
                                     primarily encompass a variety of
                                     daily activities performed by the
                                     elements of Coast Guard, Border and
                                     Transportation Security, and the
                                     Secret Service.
B13[hairsp]*......................  Harvest of live trees on DHS
                                     facilities not to exceed 70 acres,
                                     requiring no more than \1/2\ mile
                                     of temporary road construction. Do
                                     not use this category for even-aged
                                     regeneration harvest or vegetation
                                     type conversion. The proposed
                                     action may include incidental
                                     removal of trees for landings, skid
                                     trails, and road clearing. Examples
                                     include but are not limited to:
                                    (a) Removal of individual trees for
                                     saw logs, specialty products, or
                                     fuel wood.
                                    (b) Commercial thinning of
                                     overstocked stands to achieve the
                                     desired stocking level to increase
                                     health and vigor.
                                    This categorical exclusion would
                                     encompass property management
                                     activities at larger properties
                                     within the Coast Guard, Science and
                                     Technology Directorate, and the
                                     Federal Law Enforcement Training
                                     Centers.
B14[hairsp]*......................  Salvage of dead and/or dying trees
                                     on DHS facilities not to exceed 250
                                     acres, requiring no more than \1/2\
                                     mile of temporary road
                                     construction. The proposed action
                                     may include incidental removal of
                                     live or dead trees for landings,
                                     skid trails, and road clearing.
                                     Examples include but are not
                                     limited to:
                                    (a) Harvest of a portion of a stand
                                     damaged by a wind or ice event and
                                     construction of a short temporary
                                     road to access the damaged trees.
                                    (b) Harvest of fire damaged trees.
                                    (c) Harvest of insect or disease
                                     damaged trees.
                                    This categorical exclusion would
                                     encompass property management
                                     activities at larger properties
                                     within the Coast Guard, Science and
                                     Technology Directorate, and the
                                     Federal Law Enforcement Training
                                     Centers.
-----------------------------------
                         REAL ESTATE ACTIVITIES
------------------------------------------------------------------------
C1................................  Acquisition of an interest in real
                                     property that is not within or
                                     adjacent to environmentally
                                     sensitive areas, including
                                     interests less than a fee simple,
                                     by purchase, lease, assignment,
                                     easement, condemnation, or
                                     donation, which does not result in
                                     a change in the functional use of
                                     the property.

[[Page 33058]]

 
C2................................  Lease extensions, renewals, or
                                     succeeding leases where there is no
                                     change in the facility's use and
                                     all environmental operating permits
                                     have been acquired and are current.
C3................................  Reassignment of real property,
                                     including related personal property
                                     within the DHS (e.g., from one DHS
                                     element or activity to another)
                                     which does not result in a change
                                     in the functional use of the
                                     property.
C4................................  Transfer of administrative control
                                     over real property, including
                                     related personal property, between
                                     a non-DHS federal agency and the
                                     DHS which does not result in a
                                     change in the functional use of the
                                     property.
C5................................  Determination that real property is
                                     excess to the needs of the DHS and,
                                     in the case of acquired real
                                     property, the subsequent reporting
                                     of such determination to the
                                     General Services Administration or,
                                     in the case of lands withdrawn or
                                     otherwise reserved from the public
                                     domain, the subsequent filing of a
                                     notice of intent to relinquish with
                                     the Bureau of Land Management,
                                     Department of Interior.
-----------------------------------
                    REPAIR AND MAINTENANCE ACTIVITIES
------------------------------------------------------------------------
D1................................  Minor renovations and additions to
                                     buildings, roads, airfields,
                                     grounds, equipment, and other
                                     facilities that do not result in a
                                     change in the functional use of the
                                     real property (e.g. realigning
                                     interior spaces of an existing
                                     building, extending an existing
                                     roadway in a developed area a short
                                     distance, adding a small storage
                                     shed to an existing building, or
                                     retrofitting for energy
                                     conservation. This could also
                                     include installing a small antenna
                                     on an already existing antenna
                                     tower that does not cause the total
                                     height to exceed 200 feet and where
                                     the FCC would not require an
                                     environmental assessment or
                                     environmental impact statement of
                                     the installation).
D2................................  Routine upgrade, repair,
                                     maintenance, or replacement of
                                     equipment and vehicles, such as
                                     aircraft, vessels, or airfield
                                     equipment which does not result in
                                     a change in the functional use of
                                     the property.
D3................................  Repair and maintenance of buildings,
                                     roads, airfields, grounds,
                                     equipment, and other facilities
                                     which do not result in a change in
                                     functional use or an impact on a
                                     historically significant element or
                                     setting (e.g. replacing a roof,
                                     painting a building, resurfacing a
                                     road or runway, pest control
                                     activities, restoration of trails
                                     and firebreaks, culvert
                                     maintenance, grounds maintenance,
                                     existing security systems,
                                     waterfront facilities that do not
                                     require individual regulatory
                                     permits, and other facilities).
D4[hairsp]*.......................  Reconstruction and/or repair by
                                     replacement of existing utilities
                                     or surveillance systems in an
                                     existing right-of-way or easement,
                                     upon agreement with the owner of
                                     the relevant property interest.
D5[hairsp]*.......................  Maintenance dredging and repair
                                     activities within waterways,
                                     floodplains, and wetlands where no
                                     new depths are required, applicable
                                     permits are secured, and associated
                                     debris disposal will be at an
                                     approved disposal site. This
                                     categorical exclusion encompasses
                                     activities required for the
                                     maintenance of waterfront
                                     facilities managed primarily within
                                     the Coast Guard and Customs and
                                     Border Protection.
D6................................  Maintenance of aquatic and riparian
                                     habitat in streams and ponds, using
                                     native materials or best natural
                                     resource management practices.
                                     Examples include, but are not
                                     limited to:
                                    (a) Installing or repairing gabions
                                     with stone from a nearby source.
                                    (b) Adding brush for fish habitat.
                                    (c) Stabilizing stream banks through
                                     bioengineering techniques.
                                    (d) Removing and controlling exotic
                                     vegetation, not including the use
                                     of herbicides or non-native
                                     biological controls.
                                    This categorical exclusion would
                                     encompass property management
                                     activities at larger properties
                                     within the Coast Guard, Science and
                                     Technology Directorate, and the
                                     Federal Law Enforcement Training
                                     Centers.
-----------------------------------
          CONSTRUCTION, INSTALLATION, AND DEMOLITION ACTIVITIES
------------------------------------------------------------------------
E1................................  Construction, operation,
                                     maintenance, and removal of utility
                                     and communication systems, mobile
                                     antennas, data processing cable,
                                     intrusion detection systems, and
                                     similar electronic equipment that
                                     use existing rights-of-way,
                                     easements, utility distribution
                                     systems, and/or facilities and for
                                     equipment and towers not higher
                                     than 200 feet where the FCC would
                                     not require an environmental
                                     assessment or environmental impact
                                     statement for the acquisition,
                                     installation, operation or
                                     maintenance.
E2*...............................  New construction upon or improvement
                                     of land where all of the following
                                     conditions are met:
                                    (a) The structure and proposed use
                                     are compatible with applicable
                                     local planning and zoning
                                     standards.
                                    (b) The site is in a developed area
                                     and/or a previously disturbed site.
                                    (c) The proposed use will not
                                     substantially increase the number
                                     of motor vehicles at the facility
                                     or in the area.
                                    (d) The site and scale of
                                     construction or improvement are
                                     consistent with those of existing,
                                     adjacent, or nearby buildings.
                                    (e) The construction or improvement
                                     will not result in uses that exceed
                                     existing support infrastructure
                                     capacities (roads, sewer, water,
                                     parking, etc.).
E3*...............................  Acquisition, installation,
                                     operation, and maintenance of
                                     equipment, devices, and/or controls
                                     necessary to mitigate effects of
                                     the DHS missions on health and the
                                     environment, including the
                                     execution of appropriate real
                                     estate agreements. Examples include
                                     but are not limited to:
                                    (a) Pollution prevention and
                                     pollution control equipment
                                     required to meet federal, tribal,
                                     state, or local requirements.
                                    (b) Noise abatement measures,
                                     including construction of noise
                                     barriers, installation of noise
                                     control materials, or planting
                                     native trees and/or native
                                     vegetation for use as a noise
                                     abatement measure.
                                    (c) Devices to protect human or
                                     animal life, such as raptor
                                     electrocution prevention devices,
                                     fencing to restrict wildlife
                                     movement on to airfields, fencing
                                     and grating to prevent accidental
                                     entry to hazardous or restricted
                                     areas, and rescue beacons to
                                     protect human life.
E4*...............................  Removal or demolition, along with
                                     subsequent disposal of debris to
                                     permitted or authorized off-site
                                     locations, of non-historic
                                     buildings, structures, other
                                     improvements, and/or equipment in
                                     compliance with applicable
                                     environmental and safety
                                     requirements.
E5................................  Natural resource management
                                     activities to enhance native flora
                                     and fauna, including site
                                     preparation and landscaping. This
                                     categorical exclusion would
                                     encompass property management
                                     activities primarily at properties
                                     within the Coast Guard, Science and
                                     Technology Directorate, and the
                                     Federal Law Enforcement Training
                                     Centers.

[[Page 33059]]

 
E6................................  Construction or reconstruction of
                                     roads on previously disturbed areas
                                     on DHS facilities, where runoff,
                                     erosion, and sedimentation issues
                                     are mitigated through
                                     implementation of Best Management
                                     Practices. This categorical
                                     exclusion would encompass property
                                     management activities primarily at
                                     properties within the Coast Guard,
                                     Science and Technology Directorate,
                                     and the Federal Law Enforcement
                                     Training Centers.
E7................................  Construction of exercise and
                                     training trails for non-motorized
                                     use in areas that are not
                                     environmentally sensitive and that
                                     are located on DHS facilities,
                                     where run-off, erosion, and
                                     sedimentation are mitigated through
                                     implementation of Best Management
                                     Practices. This categorical
                                     exclusion would encompass property
                                     management activities primarily at
                                     properties within the Coast Guard,
                                     Science and Technology Directorate,
                                     and the Federal Law Enforcement
                                     Training Centers.
E8*...............................  Construction of aquatic and riparian
                                     habitat in streams and ponds, using
                                     native materials or best natural
                                     resource management practices.
                                     Examples include, but are not
                                     limited to:
                                    (a) Installing or repairing gabions
                                     with stone from a nearby source.
                                    (b) Adding brush for fish habitat.
                                    (c) Stabilizing stream banks through
                                     bioengineering techniques.
                                    (d) Removing and controlling exotic
                                     vegetation, not including the use
                                     of herbicides or non-native
                                     biological controls. This
                                     categorical exclusion would
                                     encompass property management
                                     activities primarily at properties
                                     within the Coast Guard, Science and
                                     Technology Directorate, and the
                                     Federal Law Enforcement Training
                                     Centers.
E9*...............................  Except in environmentally sensitive
                                     areas, construction, operation,
                                     modification, or closure of:
                                    (a) Wells for drinking water,
                                     sampling, and watering landscaping
                                     at DHS facilities.
                                    (b) Septic systems in accordance
                                     with State and local environmental
                                     and health requirements.
                                    (c) Field instruments, such as
                                     stream-gauging stations, flow-
                                     measuring devices, telemetry
                                     systems, geo-technical monitoring
                                     tools, geophysical exploration
                                     tools, water-level recording
                                     devices, well logging systems,
                                     water sampling systems, ambient air
                                     monitoring equipment.
                                    This categorical exclusion would
                                     encompass property management
                                     activities primarily at properties
                                     within the Coast Guard, Science and
                                     Technology Directorate, and the
                                     Border and Transportation Security
                                     Directorate.
-----------------------------------
        HAZARDOUS/RADIOACTIVE MATERIALS MANAGEMENT AND OPERATIONS
------------------------------------------------------------------------
                  F1..............  Routine procurement, handling,
                                     recycling, and off-site disposal of
                                     hazardous material/waste that
                                     complies with applicable
                                     requirements. Examples include but
                                     are not limited to:
                                    (a) Process-related chemicals and
                                     metals used in repair, maintenance,
                                     alteration, and manufacturing.
                                    (b) Routine transportation,
                                     distribution, use, storage,
                                     treatment, and disposal of solid
                                     waste, medical waste, radiological
                                     and special hazards conducted in
                                     accordance with all federal, state,
                                     local and tribal laws and
                                     regulations.
                                    (c) Hazardous waste minimization and
                                     recycling activities.
F2................................  Use of instruments that contain
                                     hazardous, radioactive, and
                                     radiological materials. Examples
                                     include, but are not limited to:
                                    (a) Gauging devices, tracers,
                                     analytical instruments, and other
                                     devices containing sealed
                                     radiological and radioactive
                                     sources.
                                    (b) Industrial radiography.
                                    (c) Devices used in medical and
                                     veterinary practices.
                                    (d) Installation, maintenance, non-
                                     destructive tests, and calibration.
F3................................  Use, transportation, and placement
                                     of Nuclear Regulatory Commission
                                     (NRC) approved, sealed, small
                                     source radiation devices for
                                     scanning vehicles and packages
                                     where radiation exposure to
                                     employees or the public does not
                                     exceed 0.1 rem per year and where
                                     systems are maintained within the
                                     NRC license parameters at existing
                                     facilities. This categorical
                                     exclusion would primarily encompass
                                     a variety of daily activities
                                     performed by the elements of Coast
                                     Guard, Border and Transportation
                                     Security, and the Secret Service.
-----------------------------------
                         TRAINING AND EXERCISES
------------------------------------------------------------------------
G1................................  Training of homeland security
                                     personnel, including international,
                                     tribal, state, and local agency
                                     representatives using existing
                                     facilities where the training
                                     occurs in accordance with
                                     applicable permits and other
                                     requirements for the protection of
                                     the environment. This exclusion
                                     does not apply to training that
                                     involves the use of live chemical,
                                     biological, or radiological agents
                                     except when conducted at a location
                                     designed and constructed for that
                                     training. Examples include but are
                                     not limited to:
                                    (a) Administrative or classroom
                                     training.
                                    (b) Tactical training, including but
                                     not limited to training in
                                     explosives and incendiary devices,
                                     arson investigation and
                                     firefighting, and emergency
                                     preparedness and response.
                                    (c) Vehicle and small boat operation
                                     training.
                                    (d) Small arms and less-than-lethal
                                     weapons training.
                                    (e) Security specialties and
                                     terrorist response training.
                                    (f) Crowd control training,
                                     including gas range training.
                                    (g) Enforcement response, self-
                                     defense, and interdiction
                                     techniques training.
                                    (h) Techniques for use in
                                     fingerprinting and drug analysis.
G2................................  Projects, grants, cooperative
                                     agreements, contracts, or
                                     activities to design, develop, and
                                     conduct national, state, local, or
                                     international exercises to test the
                                     readiness of the nation to prevent
                                     or respond to a terrorist attack of
                                     natural or manmade disasters and
                                     where in accordance with existing
                                     facility or land use designations.
                                     This exclusion does not apply to
                                     exercises that involve the use of
                                     chemical, biological, radiological,
                                     nuclear, or explosive agents/
                                     devices (other than small devices
                                     such as practice grenades/flash
                                     bang devices used to simulate an
                                     attack during exercise play).
-----------------------------------

[[Page 33060]]

 
    UNIQUE CATEGORICAL EXCLUSIONS FOR THE TRANSPORTATION AND SECURITY
                             ADMINISTRATION
------------------------------------------------------------------------
H1................................  Approval or disapproval of security
                                     plans required under legislative or
                                     regulatory mandates unless such
                                     plans would have a significant
                                     effect on the environment.
H2................................  Issuance of grants for the conduct
                                     of security-related research and
                                     development or the implementation
                                     of security plans or other measures
                                     at existing facilities.
H3................................  Issuance of planning documents and
                                     advisory circulars on planning for
                                     security measures which are not
                                     intended for direct implementation
                                     or are issued as administrative and
                                     technical guidance.
H4................................  Issuance or revocation of
                                     certificates or other approvals,
                                     including but not limited to:
                                    (a) Airmen certificates.
                                    (b) Security procedures at general
                                     aviation airports.
                                    (c) Airport security plans.
-----------------------------------
         UNIQUE CATEGORICAL EXCLUSION FOR THE U.S. VISIT PROGRAM
------------------------------------------------------------------------
I1*...............................  A portable or relocatable facility
                                     or structure used to collect
                                     traveler data at or adjacent to an
                                     existing port of entry that does
                                     not significantly disturb land,
                                     air, or water resources and does
                                     not individually or cumulatively
                                     have a significant environmental
                                     effect. The building footprint of
                                     the facility must be less than 5000
                                     square feet and the facility or
                                     structure must not foreclose future
                                     land use alternatives.
-----------------------------------
  UNIQUE CATEGORICAL EXCLUSION FOR THE FEDERAL LAW ENFORCEMENT TRAINING
                                 CENTER
------------------------------------------------------------------------
J7*...............................  Prescribed burning, wildlife habitat
                                     improvement thinning, and brush
                                     removal for southern yellow pine at
                                     the FLETC facility in Glynco,
                                     Georgia. No more than 200 acres
                                     will be treated in any single year.
                                     These activities may include up to
                                     0.5 mile of low- standard,
                                     temporary road construction to
                                     support these operations.
-----------------------------------
     UNIQUE CATEGORICAL EXCLUSIONS FOR THE CUSTOMS AND BORDER PATROL
------------------------------------------------------------------------
K1................................  Road dragging of existing roads and
                                     trails to maintain a clearly
                                     delineated right-of-way and to
                                     provide evidence of foot traffic
                                     and that will not expand the width,
                                     length, or footprint of the road or
                                     trail.
K2................................  Repair and maintenance of existing
                                     border fences that do not involve
                                     expansion in width or length of the
                                     project, and will not encroach on
                                     adjacent habitat.
------------------------------------------------------------------------
\1\ These categorical exclusions have the additional requirement to be
  conducted in conformance with the Greening the Government Executive
  Orders (e.g., EO 13101, 13123, 13148, 13149, and 13150).

4.0 Environmental Assessments

    This Chapter provides supplementary instructions for implementing 
environmental assessments (EA).
    An EA is a brief analysis that is prepared pursuant to NEPA to 
assist the proponent in decision making. An EA concludes in either a 
finding of no significant impact or a Notice of Intent to prepare an 
environmental impact statement. The EA should include alternatives to 
the proposed action. EAs and the associated environmental documents 
should be reviewed and approved by the CAS, unless signature authority 
has been specifically delegated to the DHS element.
    Based upon the analysis and selection of mitigation measures that 
reduce environmental impacts until they are no longer significant, an 
EA may result in a FONSI. If a proponent uses mitigation measures in 
such a manner, the FONSI must identify these mitigating measures, and 
they become legally binding and must be accomplished as the project is 
implemented. If any of these identified mitigation measures do not 
occur, so that significant adverse environmental effects could 
reasonably be expected to result, the proponent must stop the action 
and prepare an EIS.
    It is the DHS policy to involve the public to the extent 
practicable. The proponent should consider the practicality of making 
the EA available for public review and comment before completing the 
FONSI. The proponent, working in consultation with the EPC, will 
determine the practicality based on consideration of the factors in 
section 2.6, Public Involvement. When practical, an EA will be made 
available for public review and comment for a period of 30 days before 
completing the FONSI.
4.1 When to Use
    A. For any action proposed by an element that does not qualify for 
a categorical exclusion or does not clearly require an EIS, the element 
will prepare and circulate an EA.
    B. If changes in the scope of a proposed element action could 
significantly affect the quality of the human environment, an EA shall 
be prepared as soon as possible to determine the significance of the 
effects unless it is otherwise clear that an EIS is needed.
    C. An EA should be prepared for proposed actions that would 
normally be categorically excluded except that the proposed action 
involves extraordinary circumstances that may result in the proposed 
action having potential for a significant impact on the human 
environment.
    D. An EA need not be prepared if an element has decided to prepare 
an EIS on a proposed action.
4.2 Actions Normally Requiring an EA or a Programmatic EA (1501.3, 
1508.9)
    A. Projects for which environmental assessments will be the minimum 
level of analysis include, but are not limited to:
    (1) Proposed construction, land use, activity, or operation that 
has the potential to significantly affect environmentally sensitive 
areas.
    (2) Dredging projects that do not meet the criteria of the U.S. 
Army Corps of Engineers Nationwide Permit Program.
    (3) New or revised regulations, directives, or policy guidance that 
is not categorically excluded.
    (4) Proposal of new, low-altitude aircraft routes wherein over 
flights have the potential to significantly affect persons, endangered 
species, or property.
    (5) Permanent closure or limitation of access to any areas that 
were previously

[[Page 33061]]

open to public use (e.g., roads and recreational areas) where there is 
a potential for significant environmental impacts.
    (6) New law enforcement field operations for which the impacts are 
unknown, or for which the potential for significant environmental 
degradation or controversy is likely.
    B. A Programmatic EA may be prepared on a broad federal action, 
such as a program or plan, for which only very general environmental 
information is known, yet for which the anticipated environmental 
impacts are minor. A site or activity-specific EA or supplemental EA, 
may then be tiered to the PEA and the environmental analysis discussed 
in the broader statement be incorporated by reference in the site-
specific EA. In some cases the programmatic assessment may be specific 
enough or contain sufficient information to require no or very little 
tiered analysis.
4.3 Decision Document: Finding of No Significant Impact (FONSI) 
(1508.13)
    If the EA supports the conclusion that the action has no 
significant impact on the environment, the element will prepare a 
separate Finding of No Significant Impact (FONSI) that will accompany 
the EA.
    A. The FONSI must either be attached to the EA or incorporate the 
EA by reference and consist of the following:
    (1) The name of the proposed action.
    (2) The facts and conclusions that led to the FONSI.
    (3) Any mitigation commitments (including funding and/or 
monitoring) essential to render the impacts of the proposed action not 
significant, beyond those mitigations that are an integral part of the 
proposed action.
    (4) A statement that the action will not have a significant impact 
on the human environment.
    (5) The date of issuance and signature of the element official 
approving the document.
    B. The proponent, in consultation with the EPC, will determine 
whether to make the FONSI available to the public for a reasonable 
period of time before making a decision or taking action. A reasonable 
period of time will be determined on the basis of an evaluation of the 
criteria in CEQ regulations at 40 CFR 1501.4(e) and an evaluation of 
the comments received during the EA review and comment period.
4.4 Supplemental EAs
    A. The Proponent will prepare a supplemental EA if there are 
substantial changes to the proposal that are relevant to environmental 
concerns or significant new circumstances or information relevant to 
environmental concerns.
    B. The Proponent may supplement a draft or final EA at any time to 
further the analysis. The proponent shall introduce any such supplement 
into its formal administrative record if such a record exists.
    C. The Proponent will prepare, circulate, and file a supplement to 
an EA in the same manner as any other EA. A FONSI is required for the 
supplement prior to any decision making.
    D. While the Proponent is encouraged to provide public involvement 
in Supplemental EAs, the proponent has discretion regarding the type 
and level of public involvement in Supplemental EAs. Factors to be 
weighed include those listed in Section 2.6 A.

5.0 Environmental Impact Statements (EISs)

    This Chapter provides supplementary instructions for implementing 
environmental impact statements (EIS). An EIS analyzes the 
environmental impacts of a proposed action and all reasonable 
alternatives. It displays them in a report for review by the decision 
maker. The EIS provides an opportunity to work collaboratively with 
other federal, state, and tribal authorities. The EIS provides an 
opportunity for the public to understand the impacts and to influence 
the decision. An EIS is a more detailed analysis than an EA and is 
prepared for actions that appear to be major federal actions 
significantly affecting the quality of the human environment. It 
includes (1) a purpose and need statement (2) a reasonable range of 
alternative means to meet that purpose and need (3) a description of 
the affected environment and (4) a description of the environmental 
effects of each of the alternatives. The EIS must identify the element 
preferred alternative (if there is one) in the draft EIS.
5.1 When To Use
    An EIS is prepared when a DHS element proposes an action that does 
not qualify for a categorical exclusion or EA, and that could 
constitute a major federal action significantly affecting the quality 
of the human environment.
5.2 Actions Normally Requiring an EIS (1501.4), a Programmatic EIS, or 
a Legislative EIS (1506.8)
    A. Actions normally requiring EISs include, but are not limited to:
    (1) Actions where the effects of a project or operation on the 
human environment are likely to be highly controversial.
    (2) Proposed major construction or construction of facilities that 
would have a significant effect on wetlands, coastal zones, or other 
environmentally sensitive areas.
    (3) Major federal actions having a significant environmental effect 
on the global commons, such as the oceans or Antarctica, as described 
in section 2-3 of EO 12114.
    (4) Change in area, scope, type, and/or tempo of operations that 
may result in significant environmental effects.
    (5) Where an action is required by statute or treaty to develop an 
EIS.
    B. A Programmatic EIS may be prepared on a broad federal action, 
such as a program or plan, for which only very general environmental 
information is known. A site-specific EIS or EA may then be tiered to 
the PEIS and the environmental analysis discussed in the broader 
statement be incorporated by reference in the site-specific analysis.
    C. A Legislative EIS will be prepared and circulated for any 
legislative proposal, for which the DHS or its elements are primarily 
responsible and which involve significant environmental impacts.
5.3 Preparation and Filing (1506.9)
    The proponent is responsible for initiation, preparation, and 
approval of EISs. This official has overall responsibility for 
formulating, reviewing, or proposing an action or, alternatively, has 
been delegated the authority or responsibility to develop, approve, or 
adopt a proposal or action. Preparation at this level will ensure that 
the NEPA process will be incorporated into the planning process and 
that the EIS will accompany the proposal through existing review 
processes.
5.4 Combining Documents (1506.4)
    Draft and Final EISs should refer to the underlying studies, 
reports, and other documents considered in conjunction with the 
preparation. The element should indicate how such documents could be 
obtained. If possible, the supporting documents should be posted on a 
DHS web site along with the EIS. With the exception of standard 
reference documents, such as congressional materials, the proponent 
should maintain a file of the respective documents, which may be 
consulted by interested persons. If especially significant documents 
are attached to the EIS, care should be taken to ensure that the 
statement remains an essentially self-contained instrument easily 
understood without the need for undue cross-reference.

[[Page 33062]]

5.5 Supplemental EISs (1502.9)
    A. The proponent will prepare a supplemental EIS if there are 
substantial changes to the proposal that are relevant to environmental 
concerns or significant new circumstances or information relevant to 
environmental concerns as discussed in 40 CFR 1502.9(c)(1). In those 
cases where an action is not completed within a budget cycle (typically 
2 years) from the execution of the ROD, the proponent will review the 
EIS when proceeding with the action to determine whether a supplement 
is needed.
    B. The proponent may supplement a draft or final EIS or ROD at any 
time to further the analysis. The proponent shall introduce any such 
supplement into its formal administrative record if such a record 
exists.
    C. Any element decision to prepare a supplemental EIS will be 
coordinated with the DEE unless such decision has been delegated to the 
respective EPC.
    D. The proponent will prepare, circulate, and file a supplement to 
a draft or final EIS in the same manner as any other draft or final 
EIS, except that scoping is optional for a SEIS. A separate ROD is 
required for the supplement prior to any action being taken even if one 
had been prepared for the final EIS that is being supplemented. In 
special circumstances, it may be possible to negotiate alternative 
procedures for the SEIS with CEQ. The DEE will lead any discussions of 
alternative procedures with CEQ, unless delegated to the respective 
EPC.
    E. The public notice methods should be chosen to reach persons who 
may be interested in or affected by the proposal, including actions 
with effects of primarily local concern, may include, but not be 
limited to, those listed in Attachment A, Section 2.6.B.
5.6 Proposals for Legislation (1506.8)
    The proponent, in consultation with the DEE, is responsible for 
ensuring compliance with NEPA in legislative proposals. The DEE will 
maintain close coordination with the Office of the General Counsel 
whenever legislation is proposed that requires NEPA compliance.
5.7 Decision Document: Record of Decision (ROD) (1505.2)
    If the element decides to take action on a proposal covered by an 
EIS, a ROD will be prepared. The element will publish the ROD in the 
appropriate manner to make it available to the public and to reach the 
range of interested parties involved. The element will also post the 
ROD on the element web site, if one exists.
5.8 Review of Other Agencies' EISs
    A. If any DHS element receives a request for EIS comment directly 
from another agency, and the DHS element wants to provide comments on 
the EIS, the DHS element will notify the DOSE about the request. DOSE 
will check if other DHS elements have been requested to comment on the 
same EIS.
    (1) If no other DHS elements have received a request for comment, 
DOSE will inform the requested element to provide comments it sees fit.
    (2) If other DHS elements have received a request for comment, DOSE 
will either:
    (a) Coordinate the response between the DHS elements, or
    (b) Direct one of the DHS elements to serve as the lead commenting 
element.
    B. Any pertinent DHS projects that are environmentally or 
functionally related to the action proposed in the EIS should be 
identified so that interrelationships can be discussed in the final 
statement. In such cases, the DHS element should consider serving as a 
joint lead agency or cooperating agency.
    C. Several types of EIS proposals from non-DHS agencies should be 
referred by the DHS element directly to DOSE for comment, including:
    (1) Actions with national policy implications relating to the DHS 
mission.
    (2) Actions with national security, immigration, or law enforcement 
implications.
    (3) Legislation, regulations, and program proposals having national 
impact on the DHS mission.
    (4) Actions that may affect the DHS mission.
    D. Provide a copy of formal comments on non-DHS agency EISs to 
DOSE.

6.0 Special Circumstances

 6.1 Emergencies (1506.11)
    In addition to natural and technological hazards, Americans face 
threats posed by hostile governments and extremist groups. These 
threats to national security include acts of terrorism and war, and 
require DHS action to protect public health and safety and may not 
provide adequate time to prepare the appropriate NEPA analyses and 
documentation.
    A. In the event of such an emergency, the DHS will not delay an 
emergency action necessary for national defense, security, or 
preservation of human life or property in order to comply with this 
Directive or the CEQ regulations. Examples of emergencies that may 
require immediate DHS action include response to the release or 
imminent release of hazardous, biological or radiological substances.
    B. The DHS senior executive on site responding to the emergency 
will consider the probable environmental consequences of the proposed 
DHS actions and will minimize environmental damage to the maximum 
degree practical, consistent with protecting human life, property, and 
national security. At the earliest practical time, the DHS Senior 
Executive on site responding to the emergency shall consult with the 
DEE on the emergency and the DHS actions that may have environmental 
impacts.
    C. If the DHS Senior Executive on site and the DEE jointly conclude 
that the DHS emergency response actions would qualify for a DHS or DHS 
element categorical exclusion and give rise to no extraordinary 
circumstances as defined in this Directive or the CEQ regulations, then 
no further analysis or documentation is required to comply with NEPA 
prior to proceeding with the DHS actions.
    D. For those cases when the DHS senior executive on site and the 
DEE jointly conclude that the DHS emergency response actions would not 
qualify for a categorical exclusion, the DEE will, at a minimum, 
document consideration of the potential environmental effects in an 
environmental assessment for the DHS response action. If the DEE 
concludes that no significant environmental effects will occur, a FONSI 
will be prepared and filed. In the event the EA cannot be concluded 
prior to the initiation of the DHS response actions, the DEE and DHS 
senior executive will develop alternative arrangements for the 
procedural requirements of other sections of this part and the CEQ 
regulations pertaining to environmental assessments that, to the 
maximum extent practical, ensure public notification and involvement 
and focus on minimizing the adverse environmental consequences of the 
DHS response action and the emergency. The DEE will inform CEQ of these 
arrangements at the earliest opportunity.
    E. If, at any time, the DHS Senior Executive on site responding to 
the emergency or the DEE conclude that the emergency action appears to 
be a major federal action significantly affecting the quality of the 
human environment, the DEE will immediately notify the Council on 
Environmental Quality regarding the emergency and will seek alternative 
arrangements to comply with NEPA in accordance with 40 CFR section 
1506.11.
    F. The alternative arrangements developed under subsection D or E 
apply only to actions necessary to control the immediate effects of the

[[Page 33063]]

emergency to prevent further harm to life or property. Other actions 
remain subject to NEPA review as set forth herein.
    G. A public affairs plan should be developed to ensure open 
communication among the media, the public, and the DHS in the event of 
an emergency.
6.2 Classified or Protected Information (1507.3(c))
    A. Notwithstanding other sections of this Chapter, the DHS will not 
disclose classified, protected, proprietary, or other information that 
is exempted from disclosure by the Freedom of Information Act (FOIA)(5 
U.S.C. 552), critical infrastructure information as defined in 6 U.S.C. 
131(3), sensitive security information as defined in 49 CFR Part 1520, 
E.O. 12958, the DHS Management Directive 0460.1, ``Freedom of 
Information Act Compliance'', and the DHS Management Directive 11042, 
``Safeguarding Sensitive But Unclassified (For Official Use Only) 
Information'', or other laws, regulations, or Executive Orders 
prohibiting or limiting the release of information.
    B. The existence of classified or protected information does not 
relieve the DHS of the requirement to assess and document the 
environmental effects of a proposed action.
    C. To the fullest extent possible, the DHS will segregate any such 
classified or protected information into an appendix sent to 
appropriate reviewers and decision makers, and allow public review of 
the remainder of the NEPA analysis. If exempted material cannot be 
segregated, or if segregation would leave essentially meaningless 
material, the DHS elements will withhold the entire NEPA analysis from 
the public; however, the DHS elements will prepare the NEPA analysis in 
accordance with the CEQ Regulations and this Directive, and use it in 
the DHS decision making process. The protected NEPA analysis may be 
shared with appropriately cleared officials in CEQ, EPA, and within the 
DHS. In such cases, other appropriate security and environmental 
officials will ensure that the consideration of environmental effects 
will be consistent with the letter and intent of NEPA. With regard to 
an EIS requiring a security clearance for review, a team of cleared 
personnel will review the classified or protected material for 
compliance with federal, tribal, state, and local environmental 
compliance. This team will be representative of internal environmental 
professionals and external resource professionals with appropriate 
clearances.
6.3 Procedures for Applicants (1501.2, 1506.5)
    A. The DHS elements with the role of processing applications for 
permits, grants, various certifications, awards, licenses, approvals, 
or other major federal actions become the project proponent for 
environmental planning purposes. These proponents must consider the 
environmental effects of their action in accordance with this 
Directive, unless the action is exempted by statute. The requirements 
of this management Directive may be approached in a programmatic manner 
(e.g. one NEPA evaluation and document for an entire category of 
grants) or may be approached on a single application basis. In either 
case, the DHS element must be alert to identify circumstances that may 
be associated with any single application that would have potential for 
significant environmental impacts.
    B. For major categories of DHS actions involving a large number of 
applicants, the appropriate DHS element will prepare and make available 
generic guidance describing the recommended level and scope of 
environmental information that applicants should provide and identify 
studies or other information foreseeably required for later federal 
action.
    C. The DHS proponent shall begin the NEPA review as soon as 
possible after receiving an application. The proponent must conduct an 
independent and objective evaluation of the applicant's materials and 
complete the NEPA process (including evaluation of any EA that may be 
prepared by the applicant) before rendering a decision on the 
application. The DHS proponents must consider the NEPA analysis in 
reaching a decision.
    D. In all cases, the DHS program proponent shall ensure that its 
application submittal and approval process provides for appropriate 
time and resources to meet the requirements of this Directive. At a 
minimum, the application submittal and approval process must 
incorporate the following provisions. Each DHS program proponent must 
ensure, for each separate approval authority, that the responsibility 
for meeting these provisions is appropriately allocated between the 
applicant and the DHS for each program of applications and, 
potentially, for each individual applicant.
    (1) Consultation with the DHS proponent as early as possible in the 
application development process to obtain guidance with respect to the 
appropriate level and scope of any studies or environmental information 
that the program proponent may require to be submitted as part of the 
application. This includes the identification of the need for the DHS 
proponents to consult with federal, tribal, state, and local 
governments and with private entities and organizations potentially 
affected by or interested in the proposed action in accordance with 40 
CFR 1501.2(d)(2).
    (2) Anticipation of issues that may lead to either or both (1) a 
significant environmental impact; or (2) a concern with evaluating the 
level of significance. This may include identification of information 
gaps that may hinder an appropriate evaluation of significance.
    (3) Performance of studies that the DHS proponent deems necessary 
and appropriate to determine the potential for environmental impacts of 
the proposed action.
    (4) Identification and evaluation of appropriate options to resolve 
potentially significant environmental impacts. This may include 
development of appropriate actions to mitigate significant impacts.
    (5) Consultation, as appropriate, with federal, tribal, state, and 
local governments and with private entities and organizations 
potentially affected by or interested in the proposed action as needed 
during the NEPA process for scoping and other public involvement 
activities. This would include consultation with minority populations 
and low-income populations in accordance with E.O. 12898.
    (6) Notification to the DHS proponent as early as possible of other 
actions required to coordinate and complete the federal environmental 
review and to eliminate duplication with state and local procedures. 
(1506.2)
    (7) Notification to the DHS proponent if the applicant changes the 
scope of the proposed action.
    (8) Notification to the DHS proponent if the applicant plans to 
take an action that is within the proponent's jurisdiction that may 
have a significant environmental impact or limit the choice of 
alternatives. If the DHS proponent determines that the action would 
have a significant environmental impact or limit the choice of 
reasonable alternatives, the proponent will promptly notify the 
applicant that the permit, license, etc. will be withheld until the 
objectives and procedures of NEPA are achieved.
    (9) Completion of appropriate NEPA documentation.
    E. Final DHS approval of a grant, license, permit or other formal 
request

[[Page 33064]]

from an applicant may be conditioned by provisions for appropriate 
mitigation of potentially significant environmental impacts. The DHS 
proponents will ensure that all mitigation committed to as part of the 
ROD or FONSI is incorporated as conditions in whatever formal approval, 
contract, or legal document is issued. The DHS proponents will also 
ensure that appropriate monitoring of the implementation and success of 
the mitigation is also a condition of the formal documentation. The 
mitigation shall become a line item in the proponent's budget or other 
funding document, if appropriate, or included in the legal documents 
implementing the action (contracts, leases, or grants).

Appendix A: Definitions

    Categorical exclusion (CE) (1508.4): ``Categorical exclusion'' 
means a category of actions which do not individually or 
cumulatively have a significant effect on the environment and which 
have been found to have no such effect in procedures adopted by a 
federal agency in implementation of these regulations (Sec. 1507.3) 
and for which, therefore, neither an environmental assessment nor an 
environmental impact statement is required.
    Cooperating Agency (1508.5): ``Cooperating agency'' means any 
federal agency other than a lead agency which has jurisdiction by 
law or special expertise with respect to any environmental impact 
involved in a proposal (or a reasonable alternative) for legislation 
or other major federal action significantly affecting the quality of 
the human environment. The selection and responsibilities of a 
cooperating agency are described in Sec. 1501.6. A State or local 
agency of similar qualifications or an Indian Tribe, may by 
agreement with the lead agency become a cooperating agency.
    Council on Environmental Quality (CEQ): NEPA created in the 
Executive Office of the President a Council on Environmental 
Quality. The Chairman is appointed by the President with the advice 
and consent of the Senate. The Council, among other things, 
appraises programs and activities of the Federal Government in the 
light of the policy set forth in title I of NEPA and formulates and 
recommends national policies to promote the improvement of the 
quality of the environment.
    Designated DHS Official: Senior DHS officials as designated by 
the Secretary, Deputy Secretary, or Under Secretaries.
    Effects (1508.8): ``Effects'' include: (a) Direct effects, which 
are caused by the action and occur at the same time and place. (b) 
Indirect effects, which are caused by the action and are later in 
time or farther removed in distance, but are still reasonably 
foreseeable. Indirect effects may include growth inducing effects 
and other effects related to induced changes in the pattern of land 
use, population, density or growth rate, and related effects on air 
and water and other natural systems, including ecosystems.
    Effects and impacts as used in these regulations are synonymous. 
Effects includes ecological (such as the effects on natural 
resources and on the components, structures, and functioning of 
affected ecosystems), aesthetic, historic, cultural, economic, 
social, or health, whether direct, indirect, or cumulative. Effects 
may also include those resulting from actions which may have both 
beneficial and detrimental effects, even if on balance the agency 
believes that the effect will be beneficial.
    Element: Any of the DHS organizational elements, including 
agencies, bureaus, services, directorates, etc.
    Environmental assessment (EA) (1508.9): ``Environmental 
Assessment'':
    (a) means a concise public document for which a federal agency 
is responsible that serves to:
    (1) Briefly provide sufficient evidence and analysis for 
determining whether to prepare an environmental impact statement or 
a finding of no significant impact.
    (2) Aid an element in compliance with the Act when no 
environmental impact is necessary.
    (3) Facilitate preparation of a statement when one is necessary.
    (b) Shall include brief discussions of the need for the 
proposal, of alternatives as required by NEPA section 102(2)(E), of 
the environmental impacts of the proposed action and alternatives, 
and a listing of agencies and persons consulted.
    Environmental documents (1508.10): ``Environmental documents'' 
the document specified in Sec.  1508.9 (environmental assessment), 
Sec.  1508.11 (environmental impact statement), Sec.  1508.13 
(finding of no significant impact), and Sec.  1508.22 (notice of 
intent).
    Environmental impact analysis: A generic term that includes EAs 
and EISs.
    Environmental impact statement (EIS) (1508.11): ``Environmental 
impact statement'' means a detailed written statement as required by 
section 102(2)(C) of the Act. It includes (1) a purpose and need 
statement, (2) a reasonable range of alternative means to meet that 
purpose and need, (3) a description of the affected environment and 
(4) a description of the environmental effects of each of the 
alternatives. The EIS must identify the element preferred 
alternative (if there is one) in the draft EIS.
    Finding of No Significant Impact (FONSI) (1508.13): ``Finding of 
no significant impact'' means a document by a federal agency briefly 
presenting the reasons why an action, not otherwise excluded (Sec. 
1508.4), will not have a significant effect on the human environment 
and for which an environmental impact statement therefore will not 
be prepared. It shall include the environmental assessment or a 
summary of it and shall note any other environmental documents 
related to it (Sec. 1501.7(a)(5)). If the assessment is included, 
the finding need not repeat any of the discussion in the assessment 
but may incorporate it by reference.
    Environmentally Sensitive Areas: These include, but are not 
limited to, (1) proposed federally listed, threatened, or endangered 
species or their designated critical habitats; (2) properties listed 
or eligible for listing on the National Register of Historic Places; 
(3) areas having special designation or recognition such as prime or 
unique agricultural lands, coastal zones, designated wilderness or 
wilderness study areas, wild and scenic rivers, 100 year 
floodplains, wetlands, sole source aquifers, National Wildlife 
Refuge, National Parks, etc.
    Lead Agency (1508.16): ``Lead agency'' means the agency or 
agencies preparing or having taken primary responsibility for 
preparing the environmental impact statement.
    Major Federal Action (1508.18): ``Major federal action'' 
includes actions with effects that may be major and which are 
potentially subject to federal control and responsibility. Major 
reinforces but does not have a meaning independent of significantly 
(Sec. 1508.27). Actions include the circumstance where the 
responsible officials fail to act and that failure to act is 
reviewable by courts or administrative tribunals under the 
Administrative Procedure Act or other applicable law as element 
action.
    (a) Actions include new and continuing activities, including 
projects and programs entirely or partly financed, assisted, 
conducted, regulated, or approved by federal agencies; new or 
revised element rules, regulations, plans, policies, or procedures; 
and legislative proposals (Secs. 1506.8, 1508.17). Actions do not 
include funding assistance solely in the form of general revenue 
sharing funds, distributed under the State and Local Fiscal 
Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no federal 
agency control over the subsequent use of such funds. Actions do not 
include bringing judicial or administrative civil or criminal 
enforcement actions.
    (b) Federal actions tend to fall within one of the following 
categories:
    (1) Adoption of official policy, such as rules, regulations, and 
interpretations adopted pursuant to the Administrative Procedure 
Act, 5 U.S.C. 551 et seq.; treaties and international conventions or 
agreements; formal documents establishing an agency's policies which 
will result in or substantially alter agency programs.
    (2) Adoption of formal plans, such as official documents 
prepared or approved by federal agencies which guide or prescribe 
alternative uses of federal resources, upon which future element 
actions will be based.
    (3) Adoption of programs, such as a group of concerted actions 
to implement a specific policy or plan; systematic and connected 
element decisions allocating element resources to implement a 
specific statutory program or executive directive.
    (4) Approval of specific projects, such as construction or 
management activities located in a defined geographic area. Projects 
include actions approved by permit or other regulatory decision as 
well as federal and federally assisted activities.
    Mitigation (1508.20): ``Mitigation includes:
    (a) Avoiding the impact altogether by not taking a certain 
action or parts of an action.
    (b) Minimizing impacts by limiting the degree or magnitude of 
the action and its implementation.
    (c) Rectifying the impact by repairing, rehabilitating, or 
restoring the affected environment.

[[Page 33065]]

    (d) Reducing or eliminating the impact over time by preservation 
and maintenance operations during the life of the action.
    (e) Compensating for the impact by replacing or providing 
substitute resources or environments.
    National Environmental Policy Act (NEPA): Public Law 91-190 
declares a national policy which will encourage productive and 
enjoyable harmony between man and his environment; establishes a 
Council on Environmental Quality in the Executive Office of the 
President; and requires that every recommendation or report on 
proposals for legislation and other major federal actions 
significantly affecting the quality of the human environment, a 
detailed statement (EIS) by the responsible official.
    Notice of Intent (NOI) (1508.22): ``Notice of Intent'' means a 
notice that an environmental impact statement will be prepared and 
considered. The notice shall briefly:
    (a) Describe the proposed action and possible alternatives.
    (b) Describe the element's proposed scoping process including 
whether, when, and where any scoping meeting will be held.
    (c) State the name and address of a person within the element 
who can answer questions about the proposed action and the 
environmental impact statement.
    Proponent: The identified project or program manager. Normally 
this person resides in the operational line of authority. The 
proponent has the immediate authority to decide a course of action 
or has the authority to recommend course of action, from among 
options, to the next higher organization level (e.g. district to 
region) for approval. The proponent must also be in a position with 
the authority to establish the total estimate of resource 
requirements for the proposed action or, in the execution phase, 
have the authority to direct the use of resources. While the 
proponent is not normally expected to personally execute and 
document the environmental planning process, he or she has the lead 
role and is responsible for initiating the effort and retains 
responsibility (with support from the EPC) for the content and 
quality of the process and documentation.
    Proposal (1508.23): ``Proposal'' exists at that stage in the 
development of an action when an agency subject to the Act has a 
goal and is actively preparing to make a decision on one or more 
alternative means of accomplishing that goal and the effects can be 
meaningfully evaluated. Preparation of an environmental impact 
statement on a proposal should be timed (Sec. 1502.5) so that the 
final statement may be completed in time for the statement to be 
included in any recommendation or report on the proposal. A proposal 
may exist in fact as well as by agency declaration that one exists.
    Record of Environmental Consideration (REC): A REC is a means of 
documenting element consideration of an action to ensure that it 
clearly fits a category of excludable actions (section 4.3), that it 
is not a small part of a larger action (section 3.2B), and that no 
extraordinary circumstances exist (3.2C). A REC is an internal DHS 
document to accompany the determination that a proposed action can 
be categorically excluded.
    Record of Decision (ROD) (1505.2): The record, which may be 
integrated into any other record prepared by the agency shall:

    (a) state what the decision was,
    (b) identify all alternatives considered by the element in 
reaching its decision, specifying the alternative or alternatives 
which were considered to be environmentally preferable. An element 
may discuss preferences among alternatives based on relevant factors 
including economic and technical considerations and element 
statutory missions. An element shall identify and discuss all such 
factors including any essential considerations of national policy 
which were balanced by the element making its decision and state how 
those considerations entered into its decision.
    (c) State whether all practical means to avoid or minimize 
environmental harm from the alternative selected have been adopted, 
and if not, why they were not. A monitoring and enforcement program 
shall be adopted and summarized where applicable for any mitigation.
    Scoping: Scoping (described at 40 CFR Sec.  1501.7) shall be an 
early and open process for determining the scope of issues to be 
addressed and for identifying the significant issues related to a 
proposed action. This process shall be termed scoping. As soon as 
practicable after its decision to prepare an environmental impact 
statement and before the scoping process the lead agency shall 
publish a notice of intent (Sec. 1508.22) in the Federal Register 
except as provided in Sec. 1507.3(e).
    (a) As part of the scoping process the lead agency shall:
    (1) Invite the participation of affected Federal, State, and 
local agencies, any affected Indian tribe, the proponent of the 
action, and other interested persons (including those who might not 
be in accord with the action on environmental grounds), unless there 
is a limited exception under Sec. 1507.3(c). An agency may give 
notice in accordance with Sec. 1506.6.
    (2) Determine the scope (Sec. 1508.25) and the significant 
issues to be analyzed in depth in the environmental impact 
statement.
    (3) Identify and eliminate from detailed study the issues which 
are not significant or which have been covered by prior 
environmental review (Sec. 1506.3), narrowing the discussion of 
these issues in the statement to a brief presentation of why they 
will not have a significant effect on the human environment or 
providing a reference to their coverage elsewhere.
    (4) Allocate assignments for preparation of the environmental 
impact statement among the lead and cooperating agencies, with the 
lead agency retaining responsibility for the statement.
    (5) Indicate any public environmental assessments and other 
environmental impact statements which are being or will be prepared 
that are related to but are not part of the scope of the impact 
statement under consideration.
    (6) Identify other environmental review and consultation 
requirements so the lead and cooperating agencies may prepare other 
required analyses and studies concurrently with, and integrated 
with, the environmental impact statement as provided in Sec. 
1502.25.
    (7) Indicate the relationship between the timing of the 
preparation of environmental analyses and the agency's tentative 
planning and decisionmaking schedule.

    (b) As part of the scoping process the lead agency may:

    (1) Set page limits on environmental documents (Sec. 1502.7).
    (2) Set time limits (Sec. 1501.8).
    (3) Adopt procedures under Sec. 1507.3 to combine its 
environmental assessment process with its scoping process.
    (4) Hold an early scoping meeting or meetings which may be 
integrated with any other early planning meeting the agency has. 
Such a scoping meeting will often be appropriate when the impacts of 
a particular action are confined to specific sites.

    (c) An agency shall revise the determinations made under 
paragraphs (a) and (b) of this section if substantial changes are 
made later in the proposed action, or if significant new 
circumstances or information arise which bear on the proposal or its 
impacts. Scoping is used to define the scope of the environmental 
impact analysis and to identify institutional relationships in the 
process of the study.
    The scope (described at 40 C.F.R. Sec.  1508.25) consists of the 
range of actions, alternatives, and impacts to be considered in an 
environmental impact statement. The scope of an individual statement 
may depend on its relationships to other statements (Secs.1502.20 
and 1508.28). To determine the scope of environmental impact 
statements, agencies shall consider 3 types of actions, 3 types of 
alternatives, and 3 types of impacts. They include:
    (a) Actions (other than unconnected single actions) which may 
be:

    1. Connected actions, which means that they are closely related 
and therefore should be discussed in the same impact statement. 
Actions are connected if they:
    (i) Automatically trigger other actions which may require 
environmental impact statements.
    (ii) Cannot or will not proceed unless other actions are taken 
previously or simultaneously.
    (iii) Are interdependent parts of a larger action and depend on 
the larger action for their justification.

    2. Cumulative actions, which when viewed with other proposed 
actions have cumulatively significant impacts and should therefore 
be discussed in the same impact statement.
    3. Similar actions, which when viewed with other reasonably 
foreseeable or proposed agency actions, have similarities that 
provide a basis for evaluating their environmental consequences 
together, such as common timing or geography. An agency may wish to 
analyze these actions in the same impact statement. It should do so 
when the best way to assess adequately the combined impacts of 
similar actions or reasonable alternatives to such actions is to 
treat them in a single impact statement.
    (b) Alternatives, which include:
    4. No action alternative.

[[Page 33066]]

    5. Other reasonable courses of actions.
    6. Mitigation measures (not in the proposed action).
    (c) Impacts, which may be: (1) Direct; (2) indirect; (3) 
cumulative.
    Tiering (1508.28): ``Tiering'' refers to the coverage of general 
matters in broader environmental impact statements (such as national 
program or policy statements) with subsequent narrower statements or 
environmental analyses (such as regional or basin-wide program 
statements or ultimately site-specific statements) incorporating by 
reference the general discussions and concentrating solely on the 
issues specific to the statement subsequently prepared. Tiering is 
appropriate when the sequence of statements or analyses is:
    (a) From a program, plan, or policy environmental impact 
statement to a program, plan, or policy statement or analysis of 
lesser scope or to a site-specific statement or analysis.
    (b) From an environmental impact statement on a specific action 
at an early stage (such as need and site selection) to a supplement 
(which is preferred) or a subsequent statement or analysis at a 
later stage (such as environmental mitigation). Tiering in such 
cases is appropriate when it helps the lead element to focus on the 
issues which are ripe for decision and exclude from consideration 
issues already decided or not yet ripe.

[FR Doc. 04-13111 Filed 6-10-04; 8:45 am]
BILLING CODE 4410-10-P