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[Federal Register Volume 79, Number 228 (Wednesday, November 26, 2014)]
[Notices]
[Pages 70538-70540]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27966]

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DEPARTMENT OF HOMELAND SECURITY

[Docket Number DHS-2013-0052]

Environmental Planning and Historic Preservation Program

AGENCY: Department of Homeland Security.

ACTION: Notice of Final National Environmental Policy Act Implementing 
Procedures.

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SUMMARY: The purpose of this notice is to inform the public that the 
Department of Homeland Security (DHS or the Department) is issuing the 
final update to its policy and procedures for implementing the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), as 
amended, and the Council on Environmental Quality (CEQ) regulations for 
implementing the procedural provisions of NEPA (40 CFR parts 1500-
1508). The Department's NEPA procedures are contained in Directive 023-
01, Rev. 01 and Instruction Manual 023-01-001-01, Rev. 01, 
Implementation of the National Environmental Policy Act (herein after 
referred to as Directive and Instruction). This notice also responds to 
the comments received on the Department's draft updated procedures 
published on June 5, 2014 (79 FR 32563).

DATES: The Directive and Instruction will be effective on March 26, 
2015.

FOR FURTHER INFORMATION CONTACT: A. Marie Ecton, Senior Environmental 
Specialist, Department of Homeland Security, Telephone (202) 360-5661, 
or Email a.marie.ecton@hq.dhs.gov.

SUPPLEMENTARY INFORMATION: Once effective, the Directive and 
Instruction will apply to all of DHS, which is currently comprised of 
over 20 support and operational components, and help ensure the 
integration of environmental stewardship into DHS decision making as 
required by NEPA. The Directive and Instruction will serve as the DHS 
implementing procedures for NEPA and the CEQ regulations (as required 
by 40 CFR 1505.1 and 1507.3) and therefore must be read in conjunction 
with the CEQ regulations.
    The Directive and Instruction were substantially revised to address 
a number of circumstances and requirements that have arisen since April 
19, 2006, the effective date of the original DHS NEPA procedures 
(Federal Register, Vol. 71, No. 64, April 4, 2006). For example, when 
originally published in 2006 the Directive and Instruction did not 
apply to the following three Components of DHS: Federal Emergency 
Management Agency (FEMA), Customs and Border Protection (CBP), and 
United States Coast Guard (USCG); these three Components each 
maintained their own procedures for implementing NEPA when the 
Department was established in 2002. This revision to the Directive and 
Instruction incorporates FEMA, CBP, and USCG into the Department's NEPA 
procedures and addresses the full scope of DHS activities to which NEPA 
applies. When the updated procedures become effective, they will apply 
to all Components of DHS, including FEMA, CBP, and USCG. In addition, 
every Component will have the option of developing Supplemental 
Instructions to establish how that particular Component will meet the 
requirements of the final version of the DHS Directive and Instruction. 
In a separate yet related effort, FEMA will pursue rescission of its 
regulations at 44 CFR 10 and replace them with Supplemental 
Instructions that conform to requirements of the DHS Directive and 
Instruction.
    The requirements put forth in the revised Directive and Instruction 
emphasize that the NEPA process must be appropriately integrated into 
the performance of DHS missions and activities and decision making. The 
revised Directive establishes the overall policy that DHS will comply 
with NEPA, and the revised Instruction establishes the procedures for 
ensuring this compliance is implemented in an effective and efficient 
manner. The Instruction covers the following: Overview of NEPA 
requirements, including requirements for the preparation and content of 
NEPA documents; management of NEPA implementation in DHS; criteria for 
Components to obtain a delegation of authority to approve their 
respective NEPA reviews; public involvement; dispute resolution; 
information protected from public disclosure; procedures for 
emergencies; review of applications from persons or organizations 
outside of DHS (e.g., grant applications); and an identification of the 
types of DHS activities normally reviewed in a CATEX, Environmental

[[Page 70539]]

Assessment, or Environmental Impact Statement.
    The CATEXs published in 2006 are being retained and are included in 
the Instruction (Appendix A, Table 1). In addition, the Instruction 
includes the following new CATEXs: One CATEX for an administrative 
activity; five CATEXs for real property management activities; 13 
CATEXs for non-grant activities unique to FEMA's mission and 
authorities; and 19 CATEXs for federal assistance (e.g., grant) 
activities. For synopses of the administrative record support for the 
Department's list of 2006 and new CATEXs, see the docket and the DHS 
NEPA Web page at http://www.dhs.gov/nepa.
    DHS invested over three years in developing the proposed revision 
to its NEPA procedures. The draft revised Directive and Instruction 
were provided to CEQ in the fall of 2013 for review and discussion 
prior to the June 5, 2014 publication for public comment. DHS provided 
its proposed final revised Directive and Instruction to CEQ in early 
September 2014; CEQ responded with a letter dated November 10, 2014 
prior to this publication of the final Directive and Instruction as 
required under 40 CFR 1507.3(a), indicating that the Department's 
revised procedures conform to NEPA and the CEQ regulations.
    Comments on Categorical Exclusions and DHS Response:
    DHS received a comment from the International Association of Fire 
Chiefs (IACF) regarding the proposed new CATEX for federally-assisted 
wildfire mitigation activities. To improve readability (but with no 
change to the scope), DHS revised the CATEX between the draft and final 
version to read as follows:
    *N11 Federal Assistance for Wildfire Hazard Mitigation Actions. 
Federal assistance for wildfire hazard mitigation actions involving the 
creation of defensible space or hazardous fuel reduction for up to 100 
feet of at-risk structures which includes the selective removal of 
vegetation less than 12 inches in diameter through thinning, pruning, 
limbing, sawing, or brush cutting; removal of downed, dead, or dry 
vegetation material as part of the overall action.
    The actions must be limited to less than 100 acres of vegetation 
removal either individually or when combined with other reasonably 
foreseeable private or public actions and follow appropriate best 
management practices.
    Although IACF was supportive of the draft proposed CATEX, they 
recommended removal of the 100-foot limit on the creation of defensible 
space. DHS supports the mission and respects the perspective of IACF; 
however, for the time being DHS has decided to retain the proposed 
wording of the CATEX. DHS relied on only a small number of FEMA 
Environmental Assessments (EAs) to support development of the new 
CATEX, and none of those EAs included a buffer greater than 100 feet. 
Without sufficient information from past DHS-funded wildfire mitigation 
projects that demonstrates that a larger buffer results in no potential 
for environmental impacts, DHS currently believes that a higher level 
of NEPA review and impact evaluation is necessary for actions involving 
more than 100 acres of vegetation removal.
    If, as a result of additional DHS reviews of wildfire mitigation 
projects, DHS is able to document and determine that the buffer can 
reasonably be extended because there are few to no environmental 
impacts associated with larger scale clearing for wildfire mitigation 
purposes, then DHS will consider revising the CATEX. In addition, DHS 
will work with subject matter experts, including IACF, to obtain other 
data that may support future revisions to the CATEX.
    Lastly, it is important to note that if proposed vegetation 
clearing for wildfire mitigation purposes is greater than 100 feet from 
a structure, DHS can still provide grant funding for the project once 
the appropriate level of environmental review has been conducted.
    DHS received two comments from the State of Arizona Game and Fish 
Department (AZGFD) regarding the following proposed CATEX for 
federally-assisted new construction activities:
    *N8 Federal Assistance for New Construction Activities of Less Than 
One Acre in Undisturbed or Undeveloped Areas. Federal assistance for 
new construction and associated site preparation activities in 
undisturbed or undeveloped areas when the activities comprise less than 
one acre and follow best management practices to control noise, water, 
and air pollution. This category does not apply to new construction in 
undisturbed or undeveloped floodplains, wetlands, or seaward of the 
limit of moderate wave action (or V zone when the limit of moderate 
wave action has not been identified). This CATEX covers the range of 
activities typically necessary for new construction, including field 
work (e.g.orings, site inspection) and temporary staging and use of 
construction equipment and vehicles.
    AZGFD's first comment was that the draft proposed CATEX as written 
``has the potential to impact wildlife resources in undisturbed/
undeveloped areas without appropriate direct or cumulative impact 
analysis of construction activities. Construction activities within an 
acre of undisturbed or undeveloped areas have the potential to result 
in direct take of wildlife, habitat fragmentation, and reduced 
landscape wildlife permeability.'' AZGFD's second comment was a request 
that DHS include ``clarifying language that ensures cumulative impacts 
for state trust wildlife resources are identified for all related 
actions, and that reasonable mitigation measures are implemented'' and 
include ``Best Management Practices (BMPs) . . . that reduce impacts to 
wildlife including timing restrictions, trenching guidelines, fencing 
guidelines, etc.''
    In response to AZGFD's comments on new CATEX N8, DHS added the 
following sentence to Section V.B(2) of the Instruction, which 
discusses how to appropriately apply CATEXs to proposed actions: 
``Application of a CATEX to a proposed action presumes review and 
compliance under other relevant environmental planning and historic 
preservation laws, regulations, and Executive Orders (e.g., National 
Historic Preservation Act, Endangered Species Act) has occurred, and 
that a higher level of NEPA analysis is not warranted as a result of 
any identified impacts to resources protected under those other 
requirements.'' In addition, DHS believes it has enough data from past 
actions to justify that no significant cumulative impacts result from 
the clearing of plots less than one acre each. If DHS were to provide 
federal assistance for the clearing of multiple one acre plots in close 
proximity to each other, this situation would constitute an 
extraordinary circumstance that would prohibit use of the CATEX and 
would require a higher level of NEPA analysis. The list of DHS 
extraordinary circumstances is provided in Section V.B(2)(c) of the 
Instruction; these include a consideration of impacts to protected 
species and habitat and environmentally sensitive areas, and a 
consideration of whether the proposed action is related to other 
actions with individually insignificant, but cumulatively significant 
impacts. As to cumulative impacts on habitat and species, these will 
get covered in the ESA consultation process; notwithstanding the new 
CATEX N8, DHS will consult with the U.S. Fish and Wildlife Service and 
relevant state agencies, such as AZGFD, for proposed

[[Page 70540]]

actions potentially affecting protected species and habitat.
    AZGFD also commented that the definition of Cooperating Agency 
included in Section II of the draft Instruction was not fully 
consistent with the CEQ definition in 40 CFR 1508.5. DHS agrees with 
AZGFD, and has revised the definition accordingly in the final 
Instruction.
    DHS received questions regarding the need for CATEXs for 
Congressionally-mandated activities (existing USCG CATEXs L18 and L53, 
and new DHS-wide CATEX C6), to which NEPA does not apply. When Congress 
mandates an activity, such as the transfer of DHS controlled real 
property to a non-Federal entity, DHS has no discretion whether or not 
to perform the activity; however, DHS may have discretion on some 
aspects of how the activity is executed. Therefore, DHS NEPA 
practitioners expressed the need for such CATEXs where DHS has some 
level of discretion and the activities have been determined not to have 
the potential for significant environmental impacts.
    Lastly, DHS received three comments regarding the accessibility and 
readability of the draft revised Directive and Instruction and 
supporting documents; namely that the Federal Register notice was 
inadequate as a means of communicating with stakeholders and the 
public, that hyperlinks to the documents should have been clearly 
identified and easily accessible, and that the documents were difficult 
to comprehend. The Federal Register and www.regulations.gov are widely 
recognized as appropriate sources for the public to learn about and 
comment on Federal government initiatives. DHS wrote the documents 
according to style guides and writing standards applicable to the 
federal government as well as DHS-specific requirements of its formal 
Directives system. All relevant documents were and remain available to 
the public on the Department's NEPA Web page (www.dhs.gov/nepa) and on 
the www.regulations.gov Web site under Docket Number DHS-2013-0052. The 
June 5, 2014 Federal Register notice provided clear instructions to 
readers to visit these two Web sites to view the draft revised 
Directive and Instruction and supporting documents.
    A copy of this Federal Register publication and the final Directive 
and Instruction and supporting documents are available on the internet 
at www.regulations.gov (Docket Number DHS-2013-0052) and http://www.dhs.gov/nepa.

Teresa R. Pohlman,
Director of Sustainability and Environmental Programs.
[FR Doc. 2014-27966 Filed 11-25-14; 8:45 am]
BILLING CODE 9110-9B-P
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