[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]


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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.

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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