[Federal Register Volume 84, Number 68 (Tuesday, April 9, 2019)]
[Rules and Regulations]
[Pages 14011-14017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06970]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
28 CFR Part 61
RIN 1110-AA32
Federal Bureau of Investigation's National Environmental Policy
Act Regulations
AGENCY: Federal Bureau of Investigation, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice is promulgating regulations
establishing the Federal Bureau of Investigation's (FBI's) National
Environmental Policy Act (NEPA) procedures. These regulations establish
a process for implementing NEPA, Executive Order 11514, Executive Order
12114, and Council on Environmental Quality (CEQ) and Department of
Justice (DOJ) regulations for implementing the procedural provisions of
NEPA.
DATES: Effective date: May 9, 2019.
FOR FURTHER INFORMATION CONTACT: Catherine Shaw, FBI Occupational
Safety and Environmental Programs (OSEP) Unit Chief; 935 Pennsylvania
Avenue NW, Room WB-460, Washington, DC 20535; (202) 436-7500.
SUPPLEMENTARY INFORMATION: On May 24, 2016, the FBI published a Notice
of Proposed Rulemaking (NPRM) setting forth the NEPA procedures that
are the subject of this final rule. See 81 FR 32688 (2016). The NPRM
provided for a comment period ending July 25, 2016. No comments were
received.
CEQ's NEPA implementing regulations contained in 40 CFR parts 1500-
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). DOJ has established such policies and
procedures at 28 CFR part 61. The FBI NEPA regulations supplement DOJ's
procedures to ensure that environmental considerations are fully
integrated into the FBI's mission and activities.
The FBI 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 in 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.
[[Page 14012]]
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 1500-1508),
DOJ implementing regulations (28 CFR part 61), and all other applicable
environmental regulations, executive orders, and statutes 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:
(a) The FBI Director will maintain signature authority over all
Findings of No Significant Impact (FONSIs) and Records of Decision
(RODs).
(b) The Environmental Executive/Bureau Designated Environmental,
Safety and Health Official (DESHO) will offer recommendations to the
FBI Director regarding the disposition of all FONSIs and 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.
(c) 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 exercise
additional authority as delegated by the Environmental Executive/Bureau
DESHO.
(d) 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.
(e) The 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 Order 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), The Principles of Regulation, and in accordance with Executive
Order 13563, ``Improving Regulation and Regulatory Review,'' section
1(b), General Principles of Regulation.
The FBI has determined that this rule is not a ``significant
regulatory action'' under Executive Order 12866, section 3(f), and
accordingly, this rule has not been reviewed by the Office of
Management and Budget. In addition, because this rule is not
``significant,'' under Executive Order 12866, it is not subject to the
requirements of Executive Order 13771, which requires agencies to
eliminate two regulations for each new one adopted.
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.
DOJ has assessed the costs and benefits associated with
implementation of this rule 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 this rule
are 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, 20 EAs annually for actions that
would be covered by the CATEXs instated by the rule. The average
contracting costs associated with development of each of these EAs is
approximately $50,000. Therefore, the 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/
implementing a NEPA compliance strategy for each one.
The exact impact of the rule 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
This regulation 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,
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Regulatory Flexibility Act
DOJ, in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b), has reviewed this regulation and, by approving it, certifies
that this regulation will not have a substantial economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule 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
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
804). This
[[Page 14013]]
rule 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.
Paperwork Reduction Act of 1995
The collection of information contained in this notice of
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 FBI 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 in 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 which, barring
extraordinary circumstances, does 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 this rulemaking is unknown at
this time because of 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)). Categorical
exclusions are one part of those agency procedures, and therefore
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
determination that establishing categorical exclusions does not require
NEPA analysis and documentation has been upheld in Heartwood, Inc. v.
United States 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 protection; Environmental impact statements.
Authority and Issuance
Accordingly, part 61 of title 28 of the Code of Federal Regulations
is 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
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 (DOJ), 28 CFR
part 61, the Environmental Quality Improvement Act of 1970, as
amended, 42 U.S.C. 4371, et seq., and Executive Order 11514,
``Protection and Enhancement of Environmental Quality,'' March 5,
1970, as amended by Executive Order 11991, 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 DOJ 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 DOJ. 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 range of
reasonable alternatives, as well as other alternatives that are
eliminated from detailed study with a
[[Page 14014]]
brief discussion of the reasons for eliminating them. 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.
(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 is within the FBI's jurisdiction and on other factors. For
example, factors relevant to whether construction of a facility is
within FBI's jurisdiction include the following: 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, shall 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
shall 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 shall 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 shall provide the
potential applicant reasonably foreseeable requirements for studies
or other information for subsequent FBI action. In addition, the FBI
shall consult early with appropriate state and local agencies,
tribal entities, interested private persons, and organizations when
its own involvement is reasonably foreseeable.
(4) Whenever appropriate and practicable, the FBI shall
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 which, barring extraordinary
circumstances, does 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 actions 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. Also, initiation of a potentially
substantial environmental degrading influence, activity, or effect
in areas not already substantially modified; or
(x) A connection to other actions with individually
insignificant, but cumulatively significant, impacts.
(b) Documentation of CATEX usage. As noted in paragraph (c)
below, 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 shall 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
shall 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 Determination Form Required (NR) FBI CATEXs.
(NR1) Reductions, realignments, or relocation of personnel,
equipment, or mobile assets that does 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 requirement 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 licenses, easements, 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; and pipelines, pumping stations, and
facilities for water, wastewater, stormwater, and irrigation; and
for similar utility and transportation uses. Construction or
acquisition of new facilities is not included.
(NR6) Acquisition, installation, operation, and maintenance of
temporary equipment, devices, or controls necessary to mitigate
effects of the 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 disturbances within sensitive areas during construction
activities; and
(iii) Installation of temporary markers to delineate limits of
earth disturbances 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,
[[Page 14015]]
permitting, information dissemination, review, interpretation, and
development of documents. If any of these activities results 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 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 (to include
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 radio-nuclides 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 or 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 the activity in question is 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/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 Determination Form Required (R) FBI CATEXs. (R1)
Reductions, realignments, or relocation of personnel, equipment, or
mobile assets that results in changing the use of the space in such
a way that could cause changes to environmental effects, but does
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 requirement 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 requirement 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 polychlorinated
biphenyls (PCBs), lead, or asbestos. Hazardous materials shall 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.
[[Page 14016]]
(R7) Acquisition, installation, operation, and maintenance of
permanent equipment, devices, and/or controls necessary to mitigate
effects of the 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 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 (to include 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 the
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
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 shall 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's
mission, or where 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
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's 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, and/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, 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 shall 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, may 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, where applicable, 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 shall be
developed prior to the initiation of the proposed action. To the
extent practicable, the FBI shall make available the progress or
results of monitoring upon request by the public or cooperating/
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 and/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 of these procedures)
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
[[Page 14017]]
concludes with a decision regarding whether to issue a revised ROD.
Dated: April 3, 2019.
Rod J. Rosenstein,
Deputy Attorney General.
[FR Doc. 2019-06970 Filed 4-8-19; 8:45 am]
BILLING CODE 4410-02-P