[Federal Register Volume 81, Number 100 (Tuesday, May 24, 2016)]
[Proposed Rules]
[Pages 32688-32693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11945]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 61

RIN 1110-AA32


National Environmental Policy Act Procedures

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Notice of proposed rule; request for public comment.

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SUMMARY: The Department of Justice is proposing to promulgate 
regulations establishing the Federal Bureau of Investigation's (FBI's) 
National Environmental Policy Act (NEPA) procedures. These proposed 
regulations would establish a process for the FBI's implementation of 
NEPA, Executive Order 11514, Executive Order 12114, and Council on 
Environmental Quality (CEQ) and Department of Justice (Department) 
regulations addressing the procedural provisions of NEPA. Pursuant to 
CEQ regulations, the FBI is soliciting comments on the proposed FBI 
NEPA regulations from members of the interested public.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before July 25, 2016. Commenters should be aware 
that the electronic Federal Docket Management System will not accept 
comments after 11:59 p.m. Eastern Time on the last day of the comment 
period.

ADDRESSES: Submit comments online at http://www.regulations.gov. Submit 
written comments by addressing them to FBI NEPA Comments, ATTN: Scott 
A. Bohnhoff, 935 Pennsylvania Ave. NW., Room WB-460, Washington, DC 
20535 or by facsimile to 202-436-7248.

FOR FURTHER INFORMATION CONTACT: Scott Bohnhoff, FBI Occupational 
Safety and Environmental Programs (OSEP) Unit Chief; Email: 
[email protected]; Telephone: (202) 436-7500.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    Electronic comments are preferred. For comments sent via U.S. 
Postal Service, please do not submit duplicate electronic or facsimile 
comments. Please confine comments to the proposed rule.
    All submissions received must include the agency name (FBI) and 
docket number or RIN for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

Explanation of Proposed Rule

    CEQ's NEPA implementing regulations contained in 40 CFR parts 1500 
through 1508 require each Federal agency to adopt procedures (40 CFR 
1507.3) to ensure that decisions are made in accordance with the 
policies and purposes of NEPA (40 CFR 1505.1). The Department has 
established such policies and procedures at 28 CFR part 61. The FBI 
NEPA Program has been established to supplement the Department's 
procedures and to ensure that environmental considerations are fully 
integrated into the FBI's mission activities.
    The FBI NEPA regulations are intended to promote reduction of 
paperwork by providing guidelines for development of streamlined and 
focused NEPA documents and to reduce delay by integrating the NEPA 
process into the early stages of planning. They are also intended to 
promote transparency by ensuring that NEPA documents are written in 
plain language and follow a clear format so that they are easily 
understood by the public and all parties involved in implementation of 
the proposed action.
    The FBI NEPA regulations are not intended to serve as a 
comprehensive NEPA guide, but will serve as a framework for the FBI 
NEPA Program. The FBI plans to apply its NEPA regulations in 
conjunction with NEPA, the CEQ regulations (40 CFR parts 1500 through 
1508), the Department's implementing regulations (28 CFR part

[[Page 32689]]

61), and all other applicable environmental regulations, executive 
orders, statutes, and laws developed for the protection of the 
environment.
    The FBI will, as appropriate, keep the public informed of the FBI 
NEPA program and NEPA actions and ensure that relevant environmental 
documents, comments, and responses accompany proposals through all 
levels of decision making (40 CFR 1505.1(d)). The FBI's NEPA program 
will be implemented primarily by the following key persons within the 
FBI:
     The Environmental Executive/Bureau Designated 
Environmental, Safety and Health Official (DESHO) will maintain 
signature authority over all Findings of No Significant Impact (FONSIs) 
and Records of Decision (RODs); oversee the FBI NEPA Program; ensure 
that NEPA reviews are initiated as early as possible in the project 
planning process; ensure that decisions are made in accordance with the 
general policies and purposes of NEPA; and use his or her best efforts 
to ensure that sufficient funds are available to perform NEPA 
management-related planning, actions, and reporting. These 
responsibilities may be delegated to the Program Deputy Bureau DESHO.
     The Program Deputy Bureau DESHO will designate and assign 
duties to the FBI NEPA Program Manager; ensure that the FBI NEPA 
Program is coordinated with other environmental policies and 
directives; review the FBI NEPA Program metrics; and sign FONSIs and 
RODs as delegated by the Environmental Executive/Bureau DESHO.
     The FBI NEPA Program Manager will serve as the FBI's 
primary, centralized NEPA contact; provide for overall development, 
implementation, coordination, administration, and quality assurance 
measures associated with the FBI NEPA Program; advise FBI employees on 
NEPA matters; establish and ensure implementation of FBI-wide NEPA 
policy, guidance, and training; and review NEPA documentation.
     Deputy Bureau DESHOs are heads of the FBI branches, 
divisions, or offices reporting directly to the FBI Deputy Director or 
Associate Deputy Director who, within their span of control, will 
ensure the NEPA program is properly implemented and managed; use their 
best efforts to ensure that sufficient funds within their branches, 
divisions, and offices are available to perform NEPA management-related 
planning, actions, and reporting; and assign staff to fill NEPA roles 
as required.

Regulatory Certifications

Executive Orders 12866 and 13563--Regulatory Planning and Review

    These proposed regulations have been drafted and reviewed in 
accordance with Executive Order 12866, ``Regulatory Planning and 
Review,'' section 1(b), Principles of Regulation, and in accordance 
with Executive Order 13563, ``Improving Regulation and Regulatory 
Review,'' section 1(b), General Principles of Regulation.
    The Department has determined that these proposed regulations are 
not a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), and accordingly, they have not been reviewed by the 
Office of Management and Budget.
    Both Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    The Department has assessed the costs and benefits associated with 
implementation of these proposed regulations and believes that the 
regulatory approach selected maximizes net benefits by better enabling 
the FBI to comply with NEPA. Further benefits associated with 
implementation of these proposed regulations include: A streamlined 
approach to performing NEPA reviews, which is expected to lead to a 
reduction in delay and excessive paperwork; enhanced environmental 
awareness; collaborative and participatory public involvement; clear 
compliance guidelines resulting in reduced liability risk; and enhanced 
cost savings arising from fewer requirements to prepare Environmental 
Assessments (EAs) where projects are covered by categorical exclusions 
(CATEXs).
    The FBI contracts out, on average, twenty EAs annually for actions 
that would be covered by the CATEXs instated by the proposed 
regulations. The average contracting costs associated with development 
of each of these EAs is approximately $50,000. Therefore, the proposed 
rule would result in an annual cost savings of approximately $1,000,000 
in contract payouts. The FBI anticipates that its own staffing costs 
with regard to NEPA compliance will remain roughly the same upon 
adoption of the new rule, as FBI personnel will still be involved in 
reviewing projects and developing and implementing a NEPA compliance 
strategy for each one.
    The exact impact of the proposed regulations on staffing and 
funding requirements cannot be calculated due to uncertainty about the 
number of future projects and the level at which environmental review 
will occur (CATEX, EA, or Environmental Impact Statement (EIS)). 
However, as discussed in the preceding paragraphs, the FBI estimates a 
net annual cost savings of up to $1,000,000.

Executive Order 13132--Federalism

    These proposed regulations will not have a substantial, direct 
effect on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. In accordance 
with Executive Order 13132, these proposed regulations do not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Regulatory Flexibility Act

    The Department, in accordance with the Regulatory Flexibility Act 
(5 U.S.C. 605(b)) has reviewed these proposed regulations and, by 
approving them, certifies that these regulations will not have a 
substantial economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    These proposed regulations will not result in the expenditure by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year, and it will 
not substantially or uniquely affect small governments. Therefore, no 
action was deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    These proposed regulations are not a major rule as defined by 
section 251 of the Small Business Regulatory Enforcement Fairness Act 
of 1996, (5 U.S.C. 804). These proposed regulations will not result in 
an annual effect on the economy of $100 million or more, a major 
increase in costs or prices, or have substantial adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

[[Page 32690]]

Paperwork Reduction Act of 1995

    The collection of information contained in this notice of proposed 
rulemaking will be submitted to the Office of Management and Budget for 
review in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501, et seq.).
    The proposed regulations are intended to promote reduction of 
paperwork by providing guidelines for the development of streamlined 
and focused NEPA documents and to reduce delay by integrating the NEPA 
process into the early stages of planning. They are also intended to 
promote transparency by ensuring that NEPA documents are written in 
plain language and follow a clear format so that they are easily 
comprehensible by the public and all parties involved in implementation 
of the proposed action. A CATEX is a category of actions that, barring 
extraordinary circumstances, do not individually or cumulatively have a 
significant effect on the quality of the human environment and for 
which neither an EA nor an EIS is required. Using CATEXs for such 
activities reduces unnecessary paperwork and delay. The estimated 
average document length is 15 pages for an EA and 150 pages for an EIS. 
EAs, EISs, and their associated administrative records must be retained 
for at least six years after signature of the NEPA decision document. 
By contrast, a CATEX requires either no documentation or very brief 
documentation (records of environmental consideration documenting 
CATEXs are typically only a few pages long). The estimated total annual 
NEPA documentation burden associated with these regulations is unknown 
at this time due to the uncertainty of the number of projects that will 
require various levels of NEPA review.

National Environmental Policy Act

    The Council on Environmental Quality regulations do not direct 
agencies to prepare a NEPA analysis or document before establishing 
agency procedures (such as this regulation) that supplement the CEQ 
regulations for implementing NEPA. Agencies are required to adopt NEPA 
procedures that establish specific criteria for, and identification of, 
three classes of actions: Those that normally require preparation of an 
environmental impact statement; those that normally require preparation 
of an environmental assessment; and those that are categorically 
excluded from further NEPA review (40 CFR 1507.3(b)). Establishing 
categorical exclusions does not require preparation of a NEPA analysis 
or document. Agency NEPA procedures are procedural guidance to assist 
agencies in the fulfillment of agency responsibilities under NEPA, but 
are not the agency's final determination of what level of NEPA analysis 
is required for a particular proposed action. The requirements for 
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 
1507.3. The issuance of regulations establishing categorical exclusions 
does not itself require NEPA analysis and documentation. See, e.g., 
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 
(S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).

List of Subjects in 28 CFR Part 61

    Environmental impact statements.

Authority and Issuance

    Accordingly, part 61 of title 28 of the Code of Federal Regulations 
is proposed to be amended as follows:

PART 61--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

0
1. The authority citation for part 61 continues to read as follows:

    Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; Executive Order No. 
11991.

0
2. Add appendix F to part 61 to read as follows:

Appendix F to Part 61--Federal Bureau of Investigation Procedures 
Relating to the Implementation of the National Environmental Policy Act

1. Authority

    These procedures are issued pursuant to the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., 
regulations of the Council on Environmental Quality (CEQ), 40 CFR 
part 1500, regulations of the Department of Justice (Department), 28 
CFR part 61, the Environmental Quality Improvement Act of 1970, as 
amended, 42 U.S.C. 4371, et seq., and Executive Order 11514 of March 
5, 1970, ``Protection and Enhancement of Environmental Quality,'' as 
amended by Executive Order 11991 of May 24, 1977.

2. Purpose

    The Federal Bureau of Investigation (FBI) NEPA Program has been 
established to assist the FBI in integrating environmental 
considerations into the FBI's mission and activities. The FBI NEPA 
regulations have been developed to supplement CEQ and Department 
NEPA regulations by outlining internal FBI policy and procedures. 
Through these provisions, the FBI shall promote compliance with NEPA 
and CEQ's implementing regulations, encourage environmental 
sustainability by integrating environmental considerations into 
mission and planning activities, and ensure that environmental 
analyses reflect consideration of non-regulatory requirements 
included in Federal orders, directives, and policy guidance.

3. Agency Description

    The FBI is an intelligence-driven national security and law 
enforcement component within the Department of Justice. The FBI's 
mission is to protect and defend the United States against terrorist 
and foreign intelligence threats, to uphold and enforce the criminal 
laws of the United States, and to provide leadership and criminal 
justice services to Federal, state, municipal, and international 
agencies and partners. General types of FBI actions include:
    (a) Operational activities, including the detection, 
investigation, and prosecution of crimes against the United States 
and the collection of intelligence.
    (b) Training activities, including the training of Federal, 
state, local, and foreign law enforcement personnel.
    (c) Real estate activities, including acquisitions and transfers 
of land and facilities and leasing.
    (d) Construction, including new construction, renovations, 
repair, and demolition of facilities, infrastructure, utilities 
systems, and other systems.
    (e) Property maintenance and management activities, including 
maintenance of facilities, equipment, and grounds and management of 
natural resources.
    (f) Administrative and regulatory activities, including 
personnel management, procurement of goods and services, and 
preparation of regulations and policy guidance.

4. NEPA Documentation and Decision Making

    The FBI will use the NEPA process as a tool to ensure an 
interdisciplinary review of its actions and to ensure that impacts 
of those actions on the quality of the human environment are given 
appropriate consideration in FBI decisions; to identify and assess 
reasonable alternatives to its actions; and to facilitate early and 
open communication, when practicable, with the public and other 
agencies and organizations.

(a) Level of NEPA Analysis

    The level of NEPA analysis will depend on the context and 
intensity of the environmental impacts associated with the proposed 
action. Environmental Assessments (EAs) and Environmental Impact 
Statements (EISs) should include a reasonable range of alternatives, 
and should also include descriptions of other alternatives that the 
decision maker determined did not require detailed study, with a 
brief discussion of the reasons for such determinations. If there 
are no reasonable alternatives, the EA or EIS must explain why no 
reasonable alternative exists. The decision maker must consider all 
the alternatives discussed in the EA or EIS. The decision maker may 
choose an alternative that is not expressly described in a draft EA 
or EIS, provided it is qualitatively within the spectrum of 
alternatives that were discussed in the draft.

[[Page 32691]]

(b) Responsibility for NEPA Analysis

    (1) The FBI's responsibility for NEPA review of actions shall be 
determined on a case-by-case basis depending on the extent to which 
the entire project will be within the FBI's jurisdiction and on 
other factors. For example, if a project involves the construction 
of a facility, the relevant factors include: The extent of FBI 
control and funding in the construction or use of the facility, 
whether the facility is being built solely for FBI requirements, and 
whether the project would proceed without FBI action.
    (2) The extent of the FBI's responsibility for NEPA review of 
joint Federal actions, where the FBI and another Federal agency are 
cooperating on a project, will be determined on a case-by-case basis 
depending on which agency is designated as the lead agency and which 
is the cooperating agency.
    (3) In cases where FBI actions are a component of a larger 
project involving a private action or an action by a local or state 
government, the FBI's proposed action analyzed in the NEPA document 
will include only the portions of the project over which the FBI has 
sufficient control and responsibility to warrant Federal review. 
However, the cumulative impacts analysis will account for past, 
present, and reasonably foreseeable future activities affecting the 
same natural resources as the FBI project. When actions are planned 
by private or other non-Federal entities, the FBI will provide the 
potential applicant reasonably foreseeable requirements for studies 
or other information for subsequent FBI action. In addition, the FBI 
will consult with appropriate state and local agencies, tribal 
entities, interested private persons, and organizations early in a 
project's planning process when the FBI's involvement is reasonably 
foreseeable.
    (4) Whenever appropriate and practicable, the FBI will 
incorporate by reference and rely upon the environmental analyses 
and reviews of other Federal, tribal, state, and local agencies.

5. Categorical Exclusions

(a) Categorical Exclusion (CATEX) Criteria (40 CFR 1508.4)

    A CATEX is a category of actions that, barring extraordinary 
circumstances, do not individually or cumulatively have a 
significant effect on the quality of the human environment and for 
which neither an EA nor an EIS is required. Using CATEXs for such 
activities reduces unnecessary paperwork and delay. Such activities 
are not excluded from compliance with other applicable Federal, 
state, or local environmental laws. To qualify for a CATEX, an 
action must meet all of the following criteria:
    (1) The proposed action fits entirely within one or more of the 
CATEXs;
    (2) The proposed action has not been segmented and is not a 
piece of a larger action. For purposes of NEPA, actions must be 
considered in the same review if it is reasonably foreseeable that 
the actions are connected (e.g., where one action depends on 
another).
    (3) No extraordinary circumstances exist that would cause the 
normally excluded proposed action to have significant environmental 
effects. Extraordinary circumstances are assumed to exist when the 
proposed action is likely to involve any of the following 
circumstances:
    (i) An adverse effect on public health or safety;
    (ii) An adverse effect on Federally listed endangered or 
threatened species, marine mammals, or critical habitat;
    (iii) An adverse effect on archaeological resources or resources 
listed or determined to be eligible for listing in the National 
Register of Historic Places;
    (iv) An adverse effect on an environmentally sensitive area, 
including floodplains, wetlands, streams, critical migration 
corridors, and wildlife refuges;
    (v) A material violation of a Federal, state, or local 
environmental law by the FBI;
    (vi) An effect on the quality of the human or natural 
environment that is likely to be highly scientifically controversial 
or uncertain, or likely to involve unique or unknown environmental 
risks;
    (vii) Establishment of precedents or decisions in principle for 
future action(s) that have the potential for significant impacts 
(e.g., master plans, Integrated Natural Resource Management Plans, 
Integrated Cultural Resource Management Plans);
    (viii) Significantly greater scope or size than normally 
experienced for a particular category of action;
    (ix) Potential for substantial degradation of already existing 
poor environmental conditions;
    (x) Initiation of a potentially substantial environmental 
degrading influence, activity, or effect in areas not already 
substantially modified; or
    (xi) A connection to other actions with individually 
insignificant, but cumulatively significant, impacts.

(b) Documentation of CATEX Usage

    As noted in paragraph (c) of this section, certain FBI actions 
qualifying for a CATEX have been predetermined to have a low risk of 
extraordinary circumstances and, as such, have been designated as 
not requiring preparation of a Record of Environmental Consideration 
(REC) Determination Form. A REC Determination Form must be prepared 
for all other FBI actions subject to NEPA review. The REC 
Determination Form will help determine if the proposed action falls 
within a category of actions that has been excluded from further 
NEPA review or if the action will require further analysis through 
an EA or EIS. The REC Determination Form will also identify any 
extraordinary circumstances that require the FBI to perform an EA or 
an EIS for an action that would otherwise qualify for a CATEX.

(c) List of No REC Required (NR) FBI CATEXs

    (NR1) Reductions, realignments, or relocation of personnel, 
equipment, or mobile assets that do not result in changing the use 
of the space in such a way that could cause environmental effects or 
exceed the infrastructure capacity outside of FBI-managed property. 
An example of exceeding the infrastructure capacity would be an 
increase in vehicular traffic beyond the capacity of the supporting 
road network to accommodate such an increase.
    (NR2) Personnel, fiscal, management, and administrative 
activities, including recruiting, processing, paying, contract 
administration, recordkeeping, budgeting, personnel actions, and 
travel.
    (NR3) Decisions to close facilities, decommission equipment, or 
temporarily discontinue use of facilities or equipment, where the 
facility or equipment is not used to prevent or control 
environmental impacts. This excludes demolition actions.
    (NR4) Preparation of policies, procedures, manuals, and other 
guidance documents for which the environmental effects are too 
broad, speculative, or conjectural to lend themselves to meaningful 
analysis and for which the applicability of the NEPA process will be 
evaluated upon implementation, either collectively or case-by-case.
    (NR5) Grants of license, easement, or similar arrangements for 
use by vehicles (not to include substantial increases in the number 
of vehicles loaded); electrical, telephone, and other transmission 
and communication lines; pipelines, pumping stations, and facilities 
for water, wastewater, stormwater, and irrigation; and for similar 
utility and transportation uses. Construction or acquisition of new 
facilities are not included.
    (NR6) Acquisition, installation, operation, and maintenance of 
temporary equipment, devices, or controls necessary to mitigate 
effects of FBI's missions on health and the environment. This CATEX 
is not intended to cover facility construction or related 
activities. Examples include:
    (i) Temporary sediment and erosion control measures required to 
meet applicable Federal, tribal, state, or local requirements;
    (ii) Installation of temporary diversion fencing to prevent 
earth disturbance within sensitive areas during construction 
activities; and
    (iii) Installation of temporary markers to delineate limits of 
earth disturbance in forested areas to prevent unnecessary tree 
removal.
    (NR7) Routine flying operations and infrequent, temporary (fewer 
than 30 days) increases in aircraft operations up to 50 percent of 
the typical FBI aircraft operation rate.
    (NR8) Proposed new activities and operations to be conducted in 
an existing structure that would be consistent with previously 
established safety levels and would not result in a change in use of 
the facility. Examples include new types of research, development, 
testing, and evaluation activities, and laboratory operations 
conducted within existing enclosed facilities designed to support 
research and development activities.
    (NR9) Conducting audits and surveys; data collection; data 
analysis; and processing, permitting, information dissemination, 
review, interpretation, and development of documents. If any of 
these activities result in proposals for further action, those 
proposals must be covered by an appropriate CATEX or other NEPA 
analysis. Examples include:
    (i) Document mailings, publication, and distribution, training 
and information

[[Page 32692]]

programs, historical and cultural demonstrations, and public affairs 
actions;
    (ii) Studies, reports, proposals, analyses, literature reviews, 
computer modeling, and intelligence gathering and sharing;
    (iii) Activities designed to support improvement or upgrade 
management of natural resources, such as surveys for threatened and 
endangered species or cultural resources; wetland delineations; and 
minimal water, air, waste, and soil sampling;
    (iv) Minimally intrusive geological, geophysical, and geo-
technical activities, including mapping and engineering surveys;
    (v) Conducting facility audits, Environmental Site Assessments, 
and environmental baseline surveys; and
    (vi) Vulnerability, risk, and structural integrity assessments 
of infrastructure.
    (NR10) Routine procurement, use, storage, and disposal of non-
hazardous goods and services in support of administrative, 
operational, or maintenance activities in accordance with executive 
orders and Federal procurement guidelines. Examples include:
    (i) Office supplies and furniture;
    (ii) Equipment;
    (iii) Mobile assets (i.e., vehicles, vessels, aircraft);
    (iv) Utility services; and
    (v) Deployable emergency response supplies and equipment.
    (NR11) Routine use of hazardous materials (including 
procurement, transportation, distribution, and storage of such 
materials) and reuse, recycling, and disposal of solid, medical, 
radiological, or hazardous waste in a manner that is consistent with 
all applicable laws, regulations, and policies. Examples include:
    (i) Use of chemicals and low-level radionuclides for laboratory 
applications;
    (ii) Refueling of storage tanks;
    (iii) Appropriate treatment and disposal of medical waste;
    (iv) Temporary storage and disposal of solid waste;
    (v) Disposal of radiological waste through manufacturer return 
and recycling programs; and
    (vi) Hazardous waste minimization activities.
    (NR12) Acquisition, installation, maintenance, operation, or 
evaluation of security equipment to screen for or detect dangerous 
or illegal individuals or materials at existing facilities or to 
enhance the physical security of existing critical assets. Examples 
include:
    (i) Low-level x-ray devices;
    (ii) Cameras and biometric devices;
    (iii) Passive inspection devices;
    (iv) Detection or security systems for explosive, biological, or 
chemical substances;
    (v) Access controls, screening devices, and traffic management 
systems;
    (vi) Motion detection systems;
    (vii) Impact resistant doors and gates;
    (viii) Diver and swimmer detection systems, except sonar; and
    (ix) Blast and shock impact-resistant systems for land-based and 
waterfront facilities.
    (NR13) Maintenance of facilities, equipment, and grounds. 
Examples include interior utility work, road maintenance, window 
washing, lawn mowing, trash collecting, facility cleaning, and snow 
removal.
    (NR14) Recreation and welfare activities (e.g., picnics and 
Family Day).
    (NR15) Training FBI personnel and persons external to the FBI 
using existing facilities and where the training occurs in 
accordance with applicable permitting requirements and other 
requirements for the protection of the environment. This exclusion 
does not apply to training that involves the use of live chemical, 
biological, radiological, or explosive agents, except when conducted 
at a location designed and constructed to accommodate those 
materials and their associated hazards. Examples include:
    (i) Administrative or classroom training;
    (ii) Tactical training, including training in explosives and 
incendiary devices, arson investigation and firefighting, and 
emergency preparedness and response;
    (iii) Chemical, biological, explosive, or hazardous material 
handling training;
    (iv) Vehicle, aircraft, and small boat operation training;
    (v) Small arms and less-than-lethal weapons training;
    (vi) Security specialties and terrorist response training;
    (vii) Crowd control training, including gas range training;
    (viii) Enforcement response, self-defense, and interdiction 
techniques training; and
    (ix) Fingerprinting and drug analysis training.
    (NR16) Projects, grants, cooperative agreements, contracts, or 
activities to design, develop, and conduct national, state, local, 
or international exercises to test the readiness of the nation to 
prevent or respond to a terrorist attack or a natural or manmade 
disaster where conducted in accordance with existing facility or 
land use designations. This exclusion does not apply to exercises 
that involve the use of live chemical, biological, radiological, 
nuclear, or explosive agents or devices (other than small devices 
such as practice grenades or flash bang devices used to simulate an 
attack during exercises), unless these exercises are conducted under 
the auspices of existing plans or permits that have undergone NEPA 
review.

(d) List of REC Required (R) FBI CATEXs

    (R1) Reductions, realignments, or relocation of personnel, 
equipment, or mobile assets that result in changing the use of the 
space in such a way that could cause changes to environmental 
effects, but do not result in exceeding the infrastructure capacity 
outside of FBI-managed property. An example of exceeding the 
infrastructure capacity would be an increase in vehicular traffic 
beyond the capacity of the supporting road network to accommodate 
such an increase.
    (R2) Acquisition or use of space within an existing structure, 
by purchase, lease, or use agreement. This includes structures that 
are in the process of construction or were recently constructed, 
regardless of whether the existing structure was built to satisfy an 
FBI requirement and the proposed FBI use would not exceed the 
carrying capacity of the utilities and infrastructure for the use 
and access to the space. This also includes associated relocation of 
personnel, equipment, or assets into the acquired space.
    (R3) Transfer of administrative control over real property, 
including related personal property, between another Federal agency 
and the FBI that does not result in a change in the functional use 
of the property.
    (R4) New construction (e.g., facilities, roads, parking areas, 
trails, solar panels, and wind turbines) or improvement of land 
where all of the following conditions are met:
    (i) The site is in a developed or a previously disturbed area;
    (ii) The proposed use will not substantially increase the number 
of motor vehicles at the facility or in the area;
    (iii) The construction or improvement will not result in 
exceeding the infrastructure capacity outside of FBI-managed 
property (e.g., roads, sewer, water, and parking);
    (iv) The site and scale of construction or improvement are 
consistent with those of existing, adjacent, or nearby buildings; 
and
    (v) The structure and proposed use are compatible with 
applicable Federal, tribal, state, and local planning and zoning 
standards and consistent with Federally approved state coastal 
management programs.
    (R5) Renovation, addition, repair, alteration, and demolition 
projects affecting buildings, roads, airfields, grounds, equipment, 
and other facilities, including subsequent disposal of debris, which 
may be contaminated with hazardous materials such as PCBs, lead, or 
asbestos. Hazardous materials must be disposed of at approved sites 
in accordance with Federal, state, and local regulations. Examples 
include the following:
    (i) Realigning interior spaces of an existing building;
    (ii) Adding a small storage shed to an existing building;
    (iii) Retrofitting for energy conservation, including 
weatherization, installation of timers on hot water heaters, 
installation of energy efficient lighting, installation of low-flow 
plumbing fixtures, and installation of drip-irrigation systems;
    (iv) 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's NEPA procedures allow for application of a CATEX; or
    (v) Closing and demolishing a building not eligible for listing 
under the National Register of Historic Places.
    (R6) Acquisition, installation, reconstruction, repair by 
replacement, and operation of utility (e.g., water, sewer, 
electrical), communication (e.g., data processing cable and similar 
electronic equipment), and security systems that use existing 
rights-of-way, easements, distribution systems, or facilities.
    (R7) Acquisition, installation, operation, and maintenance of 
permanent equipment, devices, or controls necessary to mitigate 
effects of FBI's missions on health and the environment. This CATEX 
is not intended to cover facility construction or related 
activities. Examples include:
    (i) Pollution prevention and pollution-control equipment 
required to meet

[[Page 32693]]

applicable Federal, tribal, state, or local requirements;
    (ii) Installation of fencing, including security fencing, that 
would not have the potential to significantly impede wildlife 
population movement (including migration) or surface water flow;
    (iii) Installation and operation of lighting devices;
    (iv) Noise-abatement measures, including construction of noise 
barriers, installation of noise control materials, or planting 
native trees or native vegetation for use as a noise abatement 
measure; and
    (v) Devices to protect human or animal life, such as raptor 
electrocution prevention devices, and fencing and grating to prevent 
accidental entry to hazardous or restricted areas.
    (R8) Non-routine procurement, use, storage, and disposal of non-
hazardous goods and services in support of administrative, 
operational, or maintenance activities in accordance with executive 
orders and Federal procurement guidelines.
    (R9) Use of hazardous materials (including procurement, 
transportation, distribution, and storage of such materials) and 
reuse, recycling, and disposal of solid, medical, radiological, or 
hazardous waste in a manner that is consistent with all applicable 
laws, regulations, and policies, but uncharacteristic of routine FBI 
use, reuse, recycling, and disposal of hazardous materials and 
waste. Examples include:
    (i) Procurement of a new type of chemical or procurement of a 
larger quantity of a particular chemical than generally used by FBI; 
and
    (ii) Disposal of items that contain PCBs (e.g., carpets, 
lighting, caulk).
    (R10) Herbicide application and pest management, including 
registered pesticide application, in accordance with Federal, state, 
and local regulations.
    (R11) Natural resource management activities on FBI-managed 
property to aid in the maintenance or restoration of native flora 
and fauna, including site preparation and control of non-indigenous 
species, excluding the application of herbicides.

6. Environmental Assessment (EA)

    An EA is a concise public document for actions that do not meet 
the requirements for applying a CATEX, but for which it is unclear 
whether an EIS is required. An EA briefly provides evidence and 
analysis for determining whether to prepare an EIS or a Finding of 
No Significant Impact (FONSI), and facilitates preparation of an EIS 
when one is required. The requirements and contents of an EA are 
described in 40 CFR 1508.9. Significance of impacts will be 
determined based on the criteria outlined in 40 CFR 1508.27. The FBI 
will comment on other agencies' EAs when relevant to the FBI 
mission, or when the FBI has jurisdiction by law or relevant special 
expertise.
    (a) Examples of types of FBI actions that typically require an 
EA include the following:
    (1) Long-term plans for FBI-managed properties and facilities.
    (2) Proposed construction, land use, activity, or operation 
where it is uncertain whether the action will significantly affect 
environmentally sensitive areas.
    (3) New activities for which the impacts are not known with 
certainty, but where the impacts are not expected to cause 
significant environmental degradation.

7. Environmental Impact Statement (EIS)

    An EIS is a detailed, written statement Federal agencies must 
prepare for major Federal actions that will significantly affect the 
quality of the human environment, or when an EA concludes that the 
significance threshold of the impacts associated with a proposed 
action would be crossed. An EIS describes effects of the proposed 
action and any reasonable alternatives. A Notice of Intent (NOI) is 
published in the Federal Register as soon as practicable after a 
decision to prepare an EIS is made. The FBI may prepare an EIS 
without prior preparation of an EA. The format and content of an EIS 
are described in 40 CFR part 1502.
    (a) A Record of Decision (ROD) is prepared at the time a 
decision is made regarding a proposal that is analyzed and 
documented in an EIS. The ROD will state the decision, discuss the 
alternatives considered, and state whether all practicable means to 
avoid or minimize environmental harms have been adopted or, if not, 
why they were not adopted. Where applicable, the ROD will also 
describe and adopt a monitoring and enforcement plan for any 
mitigation. The FBI will comment on other agencies' EISs when 
relevant to the FBI mission, or where the FBI has jurisdiction by 
law or relevant special expertise.
    (b) Examples of types of actions that typically require an EIS 
include the following:
    (1) Proposed major construction or construction of facilities 
that would have a significant effect on wetlands, coastal zones, or 
other environmentally sensitive areas.
    (2) Change in area, scope, type, or frequency of operations or 
training that will result in significant environmental effects.
    (3) Actions where the effects of a project or operation on the 
human environment are likely to be highly scientifically uncertain, 
but are perceived to have potential for significant impacts.

8. Scoping

    Scoping may be used for all NEPA documents in order to 
streamline the NEPA process by identifying significant issues and 
narrowing the scope of the environmental review process. The FBI may 
seek agencies with specialized expertise or authority in 
environmental planning requirements that may be beneficial to FBI 
mission planning and encourage such agencies to be cooperating 
agencies (40 CFR 1501.6 and 1508.5). In cases where an EIS is 
prepared in response to a finding of significant impact following 
preparation of an EA, the EIS scoping process shall incorporate the 
results of the EA development process.

9. Public Involvement

    The FBI may use such means as newspaper announcements, 
electronic media, and public hearings to disseminate information to 
potentially interested or affected parties about NEPA actions, as 
appropriate. When preparing an EIS, and in certain cases an EA, the 
FBI will invite comment from affected Federal, tribal, state, and 
local agencies, and other interested persons in accordance with 40 
CFR part 1503.

10. Mitigation

    (a) Mitigation measures, such as those described in 40 CFR 
1508.20, can be used to offset environmental impacts associated with 
implementation of an action. If a FONSI or ROD is based on 
mitigation measures, all mitigation measures stipulated in the EA or 
EIS must be implemented as described in the FONSI or ROD.
    (b) Mitigation measures must be included as conditions in 
grants, permits, and relevant contract documents. Funding of actions 
shall be contingent on performance of mitigation measures, where 
such measures are identified in a FONSI or ROD. If mitigation is 
required, a mitigation monitoring plan must be developed prior to 
the initiation of the proposed action. To the extent practicable, 
the FBI will make available the progress or results of monitoring 
upon request by the public or cooperating or commenting agencies.

11. Programmatic, Tiered, and Supplemental NEPA Documents

    (a) Programmatic EAs or EISs may be prepared to cover broad 
actions, such as programs or plans (e.g., Master Plan EA).
    (b) Tiered EAs or EISs may be prepared to cover narrower actions 
that are a component to previously prepared Programmatic EAs or EISs 
as described in 40 CFR 1508.28.
    (c) Supplemental EAs or EISs shall be prepared when the FBI 
makes substantial changes to the proposed action that are relevant 
to environmental concerns; when there are significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts (e.g., new study has 
revealed rare, threatened, and endangered species in the project 
vicinity); or when the FBI determines that the purposes of NEPA will 
be furthered by doing so.
    (1) Supplemental EAs may either be prepared by tracking changes 
in the original EA or by preparing a separate document that only 
discusses the changes in the project scope or new information and 
the associated changes with regard to impacts. The process concludes 
with a decision regarding whether to issue a revised FONSI (using 
one of the methods listed in section 9) or a decision to prepare an 
EIS.
    (2) Supplemental EISs are prepared in the same way as an EIS. 
If, however, a supplemental EIS is prepared within one year of 
filing the ROD for the original EIS, no new scoping process is 
required. The process concludes with a decision regarding whether to 
issue a revised ROD.

    Dated: April 13, 2016.
Sally Q. Yates,
Deputy Attorney General.
[FR Doc. 2016-11945 Filed 5-23-16; 8:45 am]
 BILLING CODE 4410-02-P