[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Rules and Regulations]
[Pages 56514-56534]
[FR Doc No: 2016-19536]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Parts 10, 60, 78, 79, 80, 206, and 209

[Docket ID FEMA-2016-0018]
RIN 1660-AA87

Removal of Environmental Considerations Regulations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: The Federal Emergency Management Agency (FEMA), a component of
the Department of Homeland Security (DHS), is removing its
environmental considerations regulations and replacing the regulations
with a new Directive and

Instruction on environmental planning and historical preservation
requirements. DHS instituted procedures for environmental
considerations that apply Department-wide (including FEMA) in a new
Directive and Instruction. FEMA is issuing supplemental procedures to
the new DHS Directive and Instruction; a Notice of Availability for
these supplemental procedures appears in the Notice section of today's
edition of the Federal Register.

DATES: This final rule is effective August 22, 2016.

FOR FURTHER INFORMATION CONTACT: Katherine Zeringue, Environmental
Officer, Federal Emergency Management Agency, 400 C Street SW., Suite
313, Washington, DC 20472-3020;<PHONE_NUMBER>, or
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    The National Environmental Policy Act (NEPA) \1\ declares a
national policy to promote efforts that will prevent or eliminate
damage to the environment and biosphere and stimulate the health and
welfare of man, and to enrich the understanding of the ecological
systems and natural resources important to the Nation.\2\ NEPA
establishes a Council on Environmental Quality (CEQ) within the
Executive Office of the President, composed of members who are
appointed by the President with the advice and consent of the Senate,
to analyze and interpret environmental trends and information of all
kinds, to appraise programs and activities of the Federal government in
light of NEPA's purpose, to be conscious of and responsive to the
scientific, economic, social, esthetic, and cultural needs and
interests of the Nation, and to formulate and recommend national
policies to promote the improvement of the quality of the
environment.\3\
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    \1\ 42 U.S.C. 4321, 4331-4335, 4344, 4365.
    \2\ See 42 U.S.C. 4321.
    \3\ See 42 U.S.C. 4342; see also 42 U.S.C. 4344.
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    CEQ has promulgated regulations at 40 CFR parts 1500 to 1518. The
CEQ regulations set out specific procedures that Federal agencies must
follow to comply with NEPA.\4\ The CEQ regulations require each agency
to ``adopt procedures'' to supplement the CEQ regulations.\5\
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    \4\ See 40 CFR 1507.1.
    \5\ See 40 CFR 1507.3(a).
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    FEMA established its Environmental Considerations regulations via a
final rule on June 18, 1980, which established part 10 of 44 CFR.\6\
Prior to publishing a final rule, FEMA published a proposed rule on
December 6, 1979, seeking public comment on the new regulations.\7\
FEMA received two public comments on the proposed rule. FEMA has not
substantively revised 44 CFR part 10 since promulgating a final rule in
1980.
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    \6\ See 45 FR 41141.
    \7\ See 44 FR 70197.
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II. Discussion of Removal of Part 10

    FEMA was an independent agency when it promulgated part 10 in 1980.
In 2003, FEMA became a component of the Department of Homeland Security
(DHS).\8\ DHS initially issued Management Directive 5100.1 to ensure
DHS components complied with the requirements of NEPA. On April 19,
2006, DHS promulgated a comprehensive Directive 023-01 to establish the
policies and procedures for assuring compliance with NEPA. DHS
components were required to comply with the DHS Directive unless a pre-
existing regulation required an action conflicting with the Directive.
On November 26, 2014, DHS issued revised NEPA implementing procedures,
applicable to all DHS components, via a Directive and Instruction,
which went into effect on March 26, 2015.\9\ The DHS Directive and
Instruction are included in the docket for this rulemaking at
www.regulations.gov.
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    \8\ Homeland Security Act of 2002, Public Law 107-296, 116 Stat.
2135 (Nov. 25, 2002). See also 6 U.S.C. 313 (``There is in the
Department [of Homeland Security] the Federal Emergency Management
Agency.'')
    \9\ See 79 FR 70538 (Nov. 26, 2014). DHS published a draft
Directive and Instruction for public comment on June 5, 2014. See 79
FR 32563.
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    Prior to the issuance of the 2006 DHS Directive and Instruction,
DHS did not have Department-wide NEPA procedures, but rather, each
component of DHS followed its own implementing procedures. FEMA's
implementing procedures, as already noted, are at 44 CFR part 10.
    As a component of DHS, FEMA is required to follow DHS Directives
and Instructions that apply to the whole Department. As such, FEMA is
removing 44 CFR part 10, so that it may follow completely the new DHS
Directive and Instruction. Accordingly, FEMA is also removing
references to Part 10 throughout the regulations at 44 CFR and, where
appropriate, replacing them with references to applicable environmental
and historic preservation laws, regulations, Executive Orders, and
agency policy. The DHS Directive and Instruction allow each DHS
component to issue supplemental procedures. FEMA is issuing
supplemental procedures in the form of a Directive and Instruction, a
Notice of Availability for which appears in the Notice section of
today's edition of the Federal Register. The similarities and
differences between 44 CFR part 10 and the new supplemental procedures
(the DHS Directive and Instruction and the FEMA Directive and
Instruction) are described in the following section-by-section
analysis. The changes to references to 44 CFR part 10 are also
discussed below.

III. Section-by-Section Analysis

A. 44 CFR 10.1 Background and Purpose

    Paragraph (a) of Sec.  10.1 describes the purpose of 44 CFR part
10: to implement the CEQ regulations and to provide policy and
procedures to enable FEMA officials to be informed of and take into
account environmental considerations when authorizing or approving
major FEMA actions that significantly affect the environment of the
United States. The new supplemental procedures have a broader scope
than Part 10. Part 10 focuses solely on NEPA implementation; the new
supplemental procedures will address all environmental and historic
preservation compliance (commonly referred to as ``EHP'' compliance).
EHP compliance includes NEPA compliance but is broader to include other
legal requirements for environmental and historic preservation. For
example, the new supplemental procedures address compliance with the
National Historic Preservation Act,\10\ the Endangered Species Act,\11\
Executive Order 11988 ``Floodplain Management,'' and Executive Order
12148 ``Protection of Wetlands,'' in addition to NEPA compliance.\12\
The introductory paragraphs of the FEMA Directive and FEMA Instruction
reflect this broader scope.\13\
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    \10\ 16 U.S.C. 470h-2(c).
    \11\ 16 U.S.C. 1531.
    \12\ The FEMA Directive and Instruction do not supersede 44 CFR
part 9, FEMA's implementing regulations for EO 11988 and EO 11990
(the precursor to EO 12148). Rather, these documents provide
guidance for FEMA's implementing regulations of that EO.
    \13\ The Introduction to the FEMA Directive and Section 1.5.A of
the FEMA Instruction state the following: ``Environmental
stewardship, preservation of historic and cultural resources, and
sustainability are complementary goals to the emergency management
mission and activities of FEMA. FEMA promotes these goals to support
development of resilient communities in light of disasters, sea
level rise, climate change, and other impacts that threaten the
human environment. Environmental, historic, and cultural resources
are important considerations when preparing for, responding to,
recovering from, and mitigating hazards to the United States.
Protection and stewardship of the Nation's natural resources
including floodplains and wetlands, coastal barriers, forests and
fauna, biodiversity, endangered species, habitats, and other natural
landscapes provide increased protection to communities throughout
the Nation and support resiliency. Consistent with the goals of
environmental and historic preservation laws and the policies of
DHS, FEMA promotes antidegradation and balances resource use and
development with sustainability and use of renewable resources to
manage these natural and cultural resources.''

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    Paragraphs (b) and (c) of Sec.  10.1 restate the CEQ requirements
directing all Federal agencies to adopt procedures to supplement the
CEQ regulations, and that the provisions of Part 10 must be read
together with the CEQ regulations and NEPA as a whole when applying the
NEPA process. As stated above, the new DHS Directive and Instruction,
as well as the FEMA Directive and Instruction, fulfill the CEQ
requirement to adopt procedures to supplement the CEQ regulations.\14\
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    \14\ See DHS Directive 023-01, Section I, ``This Directive and
the Instruction Manual adopt and supplement the CEQ regulations and
are to be used in conjunction with those regulations.''
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B. 44 CFR 10.2 Applicability and Scope

    Section 10.2 states that Part 10 applies to FEMA, including any
office or administration of FEMA, and the FEMA regional offices. The
applicability is unchanged under the new procedures, which apply to all
components of FEMA.\15\
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    \15\ Section II of the FEMA Directive states that ``Policies in
this EHP Directive apply to all FEMA headquarters, regional and
field offices, programs, and directorates inclusive of all
associated operations and facilities and including Joint Field
Offices (JFO).''
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C. 44 CFR 10.3 Definitions

    Paragraph (a) of Sec.  10.3 defines ``Regional Administrator'' as
``the Regional Administrator of the Federal Emergency Management Agency
for the region in which FEMA is acting.'' The Regional Administrator
positions have not changed since FEMA promulgated Part 10 in 1980 but
the Homeland Security Act sets forth the responsibilities of the
Regional Administrators.\16\ The FEMA Directive and Instruction do not
further define ``Regional Administrator'' per se, but the FEMA
Directive does describe the Regional Administrator's duties in detail
at Section VI.C.
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    \16\ 6 U.S.C. 317. To view the organizational structure of FEMA
and FEMA regions, go to this link: http://www.fema.gov/about-agency.
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    Paragraph (c) of Sec.  10.3 defines ``Environmental Officer'' as
the ``Director, Office of Environmental Planning and Historic
Preservation, Mitigation Directorate, or his or her designee.'' The
title of this position is relatively unchanged: The ``Director of the
Office of Environmental Planning and Historic Preservation (OEHP).''
The FEMA Directive, which describes the duties of this position in
section VI.E, states that this position is designated by the FEMA
Administrator and has the authority and responsibility to administer
the OEHP and ensure its functional integration into FEMA missions. The
FEMA Directive and Instruction do refer to an ``Environmental
Officer,'' but it is no longer the Director of OEHP. Now, the
Environmental Officer has duties distinct from the Director of OEHP,
and is designated by and reports directly to the Director of OEHP. The
FEMA Directive describes the duties of the Environmental Officer in
Section VI.G.
    Paragraph (b) of Sec.  10.3 states that the other terms used in
Part 10 are defined in the CEQ regulations at 40 CFR part 1508. The DHS
Directive includes all CEQ definitions that FEMA uses in its Directive
and Instruction. These include definitions for ``categorical exclusion
(CATEX),'' \17\ ``environmental assessment (EA),'' \18\ ``environmental
impact statement (EIS),'' \19\ ``finding of no significant impact,''
\20\ ``human environment,'' \21\ and ``record of decision''.\22\
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    \17\ 40 CFR 1508.4; DHS Instruction section II.
    \18\ 40 CFR 1508.9; DHS Instruction section II.
    \19\ 40 CFR 1508.11; DHS Instruction section II.
    \20\ 40 CFR 1508.13; DHS Instruction section II.
    \21\ 40 CFR 1508.14; DHS Instruction section II.
    \22\ 40 CFR 1505.2; DHS Instruction section II.
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D. 44 CFR 10.4 Policy

    Section 10.4(a) sets forth FEMA's goals to ensure that FEMA's
actions, including disaster planning, response and recovery, and hazard
mitigation and flood insurance are carried out in a manner consistent
with NEPA, and that all practical means and measures are used to
protect, restore, and enhance the quality of the environment, and to
avoid or minimize adverse environmental consequences. The introduction
to the FEMA Directive generally includes these goals, and FEMA
Instruction section 1.5 also generally sets forth the policies included
in 44 CFR 10.4. For example, paragraph 10.4(a)(1), regarding achieving
the use of the environment without degradation, and paragraph
10.4(a)(3), regarding achieving a balance between resource use and
development within the sustained carrying capacity of the ecosystem
involved, are now included in the introduction of the FEMA Directive
and Section 1.5.A of the Instruction, which state that ``FEMA promotes
antidegradation and balances resource use and development with
sustainability and use of renewable resources to manage these natural
and cultural resources.'' Paragraph (a)(2) of Sec.  10.4, addressing
the preservation of historic, cultural and natural aspects of national
heritage, is addressed in sections 1.5.A and B of the FEMA Instruction.
Sections 1.5.B.3.a and b state that FEMA will conduct NEPA and other
EHP reviews early in the decision making process and before making a
decision ``that adversely affects natural or cultural resources,'' and
will tailor the NEPA process so as to spend minimal time and resources
on decisions ``that do not have potential to adversely affect natural
and cultural resources.''

E. 44 CFR 10.5 Responsibilities

    Section 10.5 sets out the responsibilities of the FEMA Regional
Administrators, the Environmental Officer, the Heads of the Offices,
Directorates, and Administrations of FEMA, and the Office of Chief
Counsel.
    The responsibilities of the FEMA Regional Administrators, which are
in paragraph (a) of Sec.  10.5, appear in section VI.C of the FEMA
Directive. Note that many of the responsibilities of the FEMA Regional
Administrators that appear in paragraph (a) of Sec.  10.5 now fall
under or are shared with other positions as outlined in the FEMA
Directive, to reflect current FEMA practice. Paragraphs (a)(1) and (2)
of Sec.  10.5 require the Regional Administrators to prepare a finding
of no significant impact, an EA (to be sent to the Environmental
Officer and the Office of Chief Counsel), or EIS for each action not
categorically excluded from Part 10 and falling within their respective
jurisdictions. These duties appear generally under section VI.C, and
more specifically under section VI.C.2.viii, of the FEMA Directive.
    Paragraph (a)(3) of Sec.  10.5 requires Regional Administrators to
coordinate and provide information regarding environmental review with
applicants for FEMA assistance. This duty appears in section VI.C.1.vii
of the FEMA Directive, which states that Regional Administrators shall
support early, proactive, and comprehensive outreach processes for EHP
in their Regions with resource/regulatory agencies, applicants, and the
public.
    Paragraph (a)(4) of Sec.  10.5 requires Regional Administrators to
prepare and maintain an administrative record for each proposal that is
determined to be categorically excluded from Part 10. Similarly,
section VI.C.2.viii of the FEMA Directive states that Regional
Administrators must ensure appropriate documentation of records of

environmental consideration for CATEXs.
    Paragraph (a)(5) of Sec.  10.5 requires Regional Administrators to
involve environmental agencies, applicants, and the public to the
extent practicable in preparing EAs. The FEMA Directive describes this
duty more generally as public outreach, falling under the positions of
the Administrator (section VI.A.2.iv), the Heads of FEMA Offices,
Programs, and Directorates (section VI.B.2.vi), the Regional
Administrators (section VI.C.1.vii), the Director of the Office of
Environmental Planning and Historic Preservation (section VI.E.1.iv),
the Regional Environmental Officers (section VI.H.1.iii), and the EHP
Program Coordinator (section VI.L.1.iv).
    Paragraph (a)(6) requires the Regional Administrator to prepare, as
required, a supplement to either the draft or final EIS. This duty
falls under general NEPA compliance duties in the FEMA Directive.
Section VI.B.2.vii of the FEMA Directive requires the Heads of Offices,
Programs, and Directorates in FEMA to ensure the completion of
appropriate EHP documentation for actions within their responsibility.
Section VI.C.2.viii includes the same requirement for the Regional
Administrators, and section VI.D.1.vi includes the same requirement for
Federal Coordinating Officers. Section VI.E.4.ii.a requires the
Director of the Office of Environmental Planning and Historic
Preservation to oversee and ensure these duties are fulfilled. Section
VI.H.4.iii.a requires the Regional Environmental Officers to ensure
completion of appropriate NEPA documentation as well.
    Paragraph (a)(7) requires the Regional Administrator to circulate
draft and final EISs. This duty is no longer necessary and the FEMA
Directive and Instruction do not include this specific provision. The
appropriate FEMA personnel (such as the Environmental Officer) handle
internal agency circulation of any environmental documentation falling
under their responsibility as part of normal business practice.
    Paragraph (a)(8) requires Regional Administrators to ensure that
decisions are made in accordance with the policies and procedures of
NEPA and Part 10, and to prepare a concise public record of such
decisions. The FEMA Directive includes these duties generally for the
Administrator (section VI.A), the Heads of Offices, Programs, and
Directorates in FEMA (section VI.B.2.i: ``Ensure that all policies,
programs, activities, and operations in their respective offices,
programs, or directorates comply with all applicable EHP requirements''
and section VI.B.2.vii: ``Ensure completion of appropriate EHP
documentation for actions within their responsibility. This
responsibility includes ensuring that the action or project record
includes adequate EHP documentation.''), the Regional Administrators
(section VI.C.2.i: ``Ensure that all policies, programs, activities,
and operations in their regions comply with all applicable EHP
requirements'', section VI.C.2.ii: ``Consider the effects of their
decisions on environmental, historic, and cultural resources in
accordance with NEPA, CEQ regulations, the DHS Instruction 023-01, the
EHP Instruction, and this EHP Directive'', and section VI.C.2.viii:
``Ensure appropriate documentation of EHP compliance for actions within
their responsibility, such as Records of Environmental Consideration
(RECs) for CATEXs, . . . This includes ensuring that the administrative
record incorporates EHP documentation and a public record of decisions
made in accordance with the policies and procedures of NEPA and other
EHP requirements.''), the Federal Coordinating Officer (section
VI.D.1.ii: ``Perform oversight and monitoring of the EHP review
process'' and section VI.D.1.vi: ``Ensure appropriate documentation of
the EHP review process for actions within their responsibility''), the
Director of OEHP (section VI.E.2.i: ``Provide the quality assurance and
quality control function for OEHP''), and the Regional Environmental
Officers (section VI.H.2: ``Support EHP compliance within their
Regions'' and section VI.H.4.iii.a: ``Support completion of the
appropriate EHP review process, including the analyses and
documentation for EHP requirements'').
    Paragraph (a)(9) requires Regional Administrators to consider
mitigating measures to avoid or minimize environmental harm, and, in
particular, harm to and within floodplains and wetlands. The FEMA
Directive includes this Regional Administrator responsibility in
section VI.C.2.iv. The FEMA Directive also requires the Administrator
to ensure FEMA Offices, Programs, and Directorates recommend EHP
mitigation for FEMA's direct actions and grant decisions when
appropriate (section VI.A.1.vi), requires the Federal Coordinating
Officer to incorporate EHP mitigation measures as appropriate and
practicable (section VI.D.1.vii), and requires the Environmental
Officer to promote EHP mitigation as part of applicant projects and
support enforcement of associated monitoring and EHP mitigation
measures (section VI.G.3.i).
    Paragraph (a)(9) requires the Regional Administrators to review and
comment upon, as appropriate, EAs and impact statements of other
Federal agencies and of State and local entities within their
respective regions. The FEMA Directive includes this as a
responsibility of the Environmental Officer, stating in section
VI.G.2.vii that the Environmental Officer shall ``Review and comment
upon, as appropriate and following notification to and approval by DHS
SEP, EAs and EISs prepared by other Federal agencies or State and local
entities that affect FEMA programs.''
    The responsibilities of the Environmental Officer appear in
paragraph (b) of Sec.  10.5. The FEMA Directive includes these duties
under two separate positions, the Director of OEHP (section VI.E) and
the Environmental Officer (section VI.G). The Director of OEHP oversees
the position of the Environmental Officer.
    Paragraph (b)(1) states that the Environmental Officer shall
determine, on the basis of the EA, whether an EIS is required, or
whether a finding of no significant impact shall be prepared. The FEMA
Directive does not specifically address this particular task, but it
does require the Environmental Officer to oversee the EHP review
process (section VI.G.2.i), and the Office of Chief Counsel provides
legal sufficiency reviews, when appropriate, for EHP analyses and
documents (section VI.K.2.iv), and as such these entities assist in
making the determination of whether an action requires an EIS.
    Paragraph (b)(2) requires the Environmental Officer to review all
proposed changes or additions to the list of CATEXs. This
responsibility appears in section VI.G.1.i of the FEMA Directive, under
the duties of the Environmental Officer.
    Paragraph (b)(3) requires the Environmental Officer to review all
findings of no significant impact. This responsibility falls generally
under the duties of the Environmental Officer in section VI.G.2.v of
the FEMA Directive, which states that the Environmental Officer shall
review draft and final environmental documentation and analyses
prepared by OEHP or other headquarters offices when EHP Approval
Authority has not been delegated to those offices. If authority is
delegated, this task may fall to the Regional Environmental Officer
(section VI.H.2.v) or the EHP Program Coordinator (section VI.L.1.ix)
as oversight and review of environmental

documentation and analyses is included in EHP Approval Authority.
    Paragraph (b)(4) requires the Environmental Officer to review all
proposed draft and final environmental statements. As with the review
of findings of no significant impact, this responsibility falls
generally under the duties of the Environmental Officer in section
VI.G.2.v of the FEMA Directive, which states that the Environmental
Officer shall review draft and final environmental documentation and
analyses prepared by OEHP or other headquarters offices when EHP
Approval Authority has not been delegated to those offices. If
authority is delegated, this task may fall to the Regional
Environmental Officer (section VI.H.2.v) or the EHP Program Coordinator
(section VI.L.1.ix).
    Paragraph (b)(5) requires the Environmental Officer to publish the
required notices in the Federal Register. While not mentioned
specifically in the FEMA Directive, this duty would fall under the
Environmental Officer's general duties of overseeing the EHP review
process for FEMA (section VI.G.2.i).
    Paragraph (b)(6) requires the Environmental Officer to provide
assistance in the preparation of EAs and impact statements and assign
lead agency responsibility when more than one FEMA office or
administration is involved. In the FEMA Directive, this duty falls
under the Environmental Officer in section VI.G.3.ii, which states that
the Environmental Officer shall determine which FEMA program will lead
the EHP review process for a project that crosses multiple FEMA
programs when the FEMA programs involved in the project cannot agree
upon who will serve as the lead, and in section VI.G.2.iv, which states
that the Environmental Officer will provide assistance in the
preparation of environmental documentation in the Regions and Programs
as appropriate and assign lead agency responsibility when more than one
FEMA office or administration is involved.
    Paragraph (b)(7) requires the Environmental Officer to direct the
preparation of environmental documents for specific actions when
required. While not mentioned specifically in the FEMA Directive, this
duty would fall under the Environmental Officer's general duties of
overseeing the EHP review process for FEMA (section VI.G.2.i).
    Paragraph (b)(8) requires the Environmental Officer to comply with
the requirements of Part 10 when the FEMA Administrator promulgates
regulations, procedures, or other issuances making or amending Agency
policy. The Director of OEHP retains this duty generally to follow the
requirements of the Agency's NEPA procedures for any Agency-wide
action. The FEMA Directive states that it is the policy of FEMA to
comply with all EHP Requirements, including all applicable laws,
regulations, and executive orders, and it is the responsibility of the
Heads of Offices, Programs, and Directorates with support from the
Director of OEHP to comply with the Agency's policy (section VI.B.2.i
and VI.E.2).
    Paragraph (b)(9) requires the Environmental Officer to provide,
when appropriate, consolidated FEMA comments on draft and final impact
statements prepared for the issuance of regulations and procedures of
other agencies. The FEMA Directive includes this requirement under the
responsibilities of the Environmental Officer at section VI.G.2.vii,
which states that the Environmental Officer shall review and comment
upon, as appropriate, EAs and EISs of other Federal agencies.
    Paragraph (b)(10) requires the Environmental Officer to review FEMA
issuances that have environmental implications. While not mentioned
specifically in the FEMA Directive, this duty would fall under the
Environmental Officer's general duties of overseeing the EHP review
process for FEMA (section VI.G.2.i).
    Paragraph (b)(11) states that the Environmental Officer shall
maintain liaison with CEQ, the Environmental Protection Agency, the
Office of Management and Budget (OMB), other Federal agencies, and
State and local groups, with respect to environmental analysis for FEMA
actions affecting the environment. Under the DHS Directive section
IV.B.2, the DHS Director of Sustainability and Environmental Programs
(SEP) serves, unless otherwise delegated, as the single point of
contact for DHS on NEPA and NEPA related-matters in interactions with
CEQ, the OMB, the Advisory Council on Historic Preservation, and other
Federal agency headquarters. Under the FEMA Directive section
VI.G.2.iii, the Environmental Officer serves as the liaison with other
Federal, State, and local agencies regarding environmental analyses for
FEMA actions.
    The responsibilities of the Heads of the Offices, Directorates, and
Administrations of FEMA, which are listed in paragraph (c) of Sec.
10.5, appear in section VI.B of the FEMA Directive.
    Paragraph (c)(1) requires the Heads of the Offices, Directorates,
and Administrations of FEMA to assess environmental consequences of
proposed and ongoing programs within their respective organizational
units. Section VI.B.2.ii of the FEMA Directive requires these entities
to assess EHP requirements of proposed, new, and ongoing programs,
policies, plans and projects within their organizational units before
they make decisions or take action. Section VI.B.1.ii requires these
entities to incorporate EHP review processes into development of
regulations, procedures, and other policies for compliance with EHP
requirements.
    Paragraph (c)(2) requires the Heads of the Offices, Directorates,
and Administrations of FEMA to prepare and process EAs and EISs for all
regulations, procedures and other issuances making or amending program
policy related to actions which do not qualify for CATEXs. Under the
FEMA Directive, this responsibility falls under the Regional
Administrators to prepare an EA (to be sent to the Environmental
Officer and the Office of Chief Counsel), or EIS for each action not
categorically excluded from Part 10 and falling within their respective
jurisdictions. These duties appear generally under section VI.C, and
more specifically under section VI.C.2.viii, of the FEMA Directive.
    Paragraph (c)(3) requires the Heads of the Offices, Directorates,
and Administrations of FEMA to integrate environmental considerations
into their decision making process. This responsibility appears in
section VI.B.1.i of the FEMA Directive, which mirrors the language of
paragraph (c)(3) and adds the requirement that the integration occur
early in the decision making process.
    Paragraph (c)(4) requires the Heads of the Offices, Directorates,
and Administrations of FEMA to ensure that regulations, procedures and
other issuances making or amending program policy are reviewed for
consistency with the requirements of Part 10. As stated above, section
VI.B.1.ii of the FEMA Directive requires these entities to incorporate
EHP review processes into development of regulations, procedures, and
other policies for compliance with EHP requirements.
    Paragraph (c)(5) requires the Heads of the Offices, Directorates,
and Administrations of FEMA to designate a single point of contact for
matters pertaining to this part. The FEMA Directive, in section VI.L,
designates this single point of contact as the EHP Program Coordinator,
who serves as a technical EHP resource for a specific program office.
    Paragraph (c)(6) requires the Heads of the Offices, Directorates,
and

Administrations of FEMA to provide applicants for FEMA assistance with
technical assistance regarding FEMA's environmental review process. The
FEMA Directive captures this duty in section VI.B.4.iv.d which
stipulates that the Offices, Programs, and Directorates of FEMA must
assist applicants or eligible entities in identifying the EHP
requirements triggered by their proposed projects and the potential EHP
mitigation measures that may affect project design. The FEMA Directive
also lists this as a duty of the Regional Environmental Officer in
section VI.H.4.iii.e, which states that the Regional Environmental
Officer shall provide technical assistance and guidance to applicants
regarding EHP review processes.
    The responsibilities of the Office of Chief Counsel, which are in
listed paragraph (d) of Sec.  10.5, appear in section VI.K of the FEMA
Directive. Paragraph (d)(1) states that the Office of Chief Counsel
shall provide advice and assistance concerning the requirements of Part
10. The list of specific duties in section VI.K of the FEMA Directive
all fall under this requirement to provide advice and assistance
regarding compliance with NEPA. Specifically, section VI.K.2.v requires
the Office of Chief Counsel to provide guidance to the Director of
OEHP, FPO, EO, EHP Program Coordinators, the Heads of Offices,
Programs, and Directorates, and others as appropriate to assist FEMA in
maintaining EHP compliance.
    Paragraph (d)(2) requires the Office of Chief Counsel to review all
proposed changes or additions to the list of CATEXs. The FEMA Directive
includes this as a primary responsibility of the Environmental Officer
with support from the Office of Chief Counsel (section VI.G.1.i and
VI.K.1.iv).
    Paragraph (d)(3) requires the Office of Chief Counsel to review all
findings of no significant impact, and paragraph (d)(4) requires the
Office of Chief Counsel to review all proposed draft and final EISs.
These duties fall under section VI.K.2.iv of the FEMA Directive, which
requires the Office of Chief Counsel to provide legal sufficiency
reviews on EHP analyses and documents. These analyses and documents can
include findings of no significant impact and proposed draft and final
EISs.

F. 44 CFR 10.6 Making or Amending Policy

    Section 10.6 states that for all regulations, procedures, or other
issuances making or amending policy, the head of the FEMA office or
administration establishing such policy shall be responsible for
application of Part 10 to that action. This responsibility continues to
be that of the Heads of Offices, Programs, and Directorates under the
FEMA Directive (section VI.B.2.i). As noted above, Sec.  10.5(b)(8)
requires the Environmental Officer to comply with the requirements of
Part 10 when the FEMA Administrator promulgates regulations, procedures
or other issuances making or amending Agency policy. Under the FEMA
Directive, the Director of OEHP retains this duty generally to follow
the requirements of the Agency's NEPA procedures for any Agency-wide
action. The FEMA Directive states that it is the policy of FEMA to
comply with all EHP Requirements, including all applicable laws,
regulations, and executive orders, and it is the responsibility of the
Heads of Offices, Programs, and Directorates with support from the
Director of OEHP to comply with the Agency's policy (section VI.B.2.i
and VI.E.2).

G. 44 CFR 10.7 Planning

Early Planning
    Paragraph (a) of Sec.  10.7 states that the Regional Administrator
shall integrate the NEPA process with other planning at the earliest
possible time to ensure that planning decisions reflect environmental
values, to avoid delays later in the process, and to head off potential
conflicts. The FEMA Directive mirrors this language in its list of
Regional Administrator responsibilities in section VI.C.1.i. More
generally, the FEMA Instruction in section 1.5.B.3.a states that it is
the policy of FEMA to conduct NEPA and other EHP reviews early in the
decision making process and before making a decision that adversely
affects natural or cultural resources or limits the choices of
alternatives to satisfy an Agency objective. Other requirements to
integrate EHP review early in the process appear throughout the FEMA
Directive and Instruction; for example, section 1.5.B.3.f of the
Instruction states that it is the policy of FEMA to clearly convey EHP
requirements, expectations, timelines, and information needs to
applicants as early in the project lifecycle as possible, and section
VI.B.1.i of the Directive states that it is the responsibility of the
Heads of Offices, Programs, and Directorates in FEMA to integrate EHP
considerations early into their decision making. In addition, the FEMA
Instruction in section 3.1 addresses steps for applying NEPA early in
the decision-making process.
Lead Agency
    Paragraph (b) of Sec.  10.7 states that to determine the lead
agency for policy making in which more than one FEMA office or
administration is involved or any action in which another Federal
agency is involved, FEMA offices and administrations shall apply
criteria defined in Sec.  1501.5 of the CEQ regulation,\23\ and if
there is disagreement, the FEMA offices and/or administrations shall
forward a request for lead agency determination to the Environmental
Officer. The regulation states that the Environmental Officer will
determine lead agency responsibility among FEMA offices and
administration, and in those cases involving a FEMA office or
administration and another Federal agency, the Environmental Officer
will attempt to resolve the differences.\24\ Finally, the regulation
states that if unsuccessful, the Environmental Officer will file the
request with CEQ for determination.\25\
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    \23\ 40 CFR 1501.5 addresses when a lead agency is required, the
process for determining a lead agency, and the responsibilities of
the lead agency.
    \24\ 44 CFR 10.7(b)(1) & (2).
    \25\ 44 CFR 10.7(b)(2).
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    The FEMA Directive, at section VI.G.2.iv, assigns the Environmental
Officer the responsibility of assigning lead agency responsibility when
more than one FEMA office or administration is involved in the
preparation of environmental documentation. The FEMA Instruction more
fully addresses ``Lead and Cooperating Agencies,'' including the
involvement of other Federal agencies, in section 3.3. The DHS
Instruction, section V.F, provides the overarching general requirements
for ``Cooperating and Joint Lead Agency Relationships.'' As FEMA is a
component of DHS, DHS acts as the liaison with CEQ; if the
Environmental Officer is unable to resolve any differences with another
Federal agency, the Environmental Officer would raise it to DHS which
in turn may liaise with CEQ on the matter.
Technical Assistance to Applicants
    Paragraph (c) of Sec.  10.7 addresses the requirements of Sec.
1501.2(d) of the CEQ regulations which require agencies to provide for
early involvement in action which, while planned by private applicants
or other non-Federal entities, require some form of Federal approval.
The FEMA Instruction addresses technical assistance in section 2.2.B.
    Paragraph (c)(1)(i) states that the heads of the FEMA offices and
administration shall prepare where practicable, generic guidelines

describing the scope and level of environmental information required
from applicants as a basis for evaluating their proposed actions, and
make those guidelines available upon request. Section 2.2.B.3 of the
FEMA Instruction discusses program responsibilities in providing
guidance to applicants for collection of information for EHP review.
    Paragraph (c)(1)(ii) requires the Regional Administrator to provide
the guidance on a project-by-project basis to applicants seeking
assistance from FEMA. Section 2.2 of the FEMA Instruction describes in
detail how Programs and EHP staff will provide guidance to all
applicants whenever there is a proposed action.
    Paragraph (c)(1)(iii) states that upon receipt of an application
for agency approval, or notification that an application will be filed,
the Regional Administrator shall consult as required with other
appropriate parties to initiate and coordinate the necessary
environmental analyses. Section 2.2.B.5 of the FEMA Instruction mirrors
this language.
    Paragraph (c)(2) lists the responsibilities of applicants and other
non-Federal entities to facilitate the requirements of Sec.  1501.2(d)
of the CEQ regulations. The FEMA Directive and Instruction apply to
FEMA, not directly to applicants or other non-Federal entities. As the
EHP procedures will now appear in guidance documents (the FEMA
Directive and Instruction), FEMA is not including direct requirements
on applicants in those documents. However, the guidance does require
FEMA to provide the same information to applicants as is included in
paragraph (c)(2) of Sec.  10.7 (e.g., information regarding studies and
surveys the applicant may conduct, when to submit applications, and the
process for consulting with Federal, regional, State, and local
agencies).

H. 44 CFR 10.8 Determination of Requirement for Environmental Review

    The introduction to Sec.  10.8 addresses the first step in applying
the NEPA process, namely, the determination of whether to prepare an EA
or an EIS. The introduction to Sec.  10.8 states that early
determination will help ensure that necessary environmental
documentation is prepared and integrated into the decision making
process. It also states that EISs will be prepared for all major Agency
actions significantly affecting the quality of the human environment.
Paragraph (a) states that in determining whether to prepare an EIS, the
Regional Administrator will first determine whether the proposal is one
which normally requires an EIS, or normally does not require either an
EIS or an EA (CATEX).
    Sections 3.1 and 3.2 of the FEMA Instruction address NEPA
implementing procedures for FEMA and comprehensively address the
elements in the introduction and paragraph (a) of Sec.  10.8.
Specifically, section 3.1 of the FEMA Instruction addresses the
application of NEPA early in the FEMA decision making process. Section
3.2 of the FEMA Instruction explains the process of determining the
appropriate level of NEPA review, as part of a process referred to as
``scoping,'' and also covers the process of determining whether a
statutory exclusion or CATEX applies. Section 3.2.B explains the
process for determining the significance of a proposed action. Section
3.2.B.1 lists typical classes of actions that require an EA, and
sections 3.2.B.2 list typical classes of actions that require an EIS.
1. 10.8(b): Actions That Normally Require an EIS
    Paragraph (b) of Sec.  10.8 addresses actions that normally require
an EIS. Paragraph (b)(1) states that in some cases, it will be readily
apparent that a proposed action will have significant impact on the
environment, in which case, the Regional Administrator will begin the
process of preparing an EIS. While there is not an exact correspondence
to this provision in the FEMA Directive or Instruction, the procedures
set out in the FEMA Instruction at section 3.2.B will capture any
actions that seem likely, without the need for in-depth analysis, to
have significant impact on the environment.
    Paragraph (b)(2) sets out criteria for determining those actions
that normally do require an EIS: (i) An action that will result in an
extensive change in land use or the commitment of a large amount of
land, (ii) an action that will result in a land use change which is
incompatible with the existing or planned land use of the surrounding
area, (iii) an action where many people will be affected, (iv) an
action where the environmental impact of the project is likely to be
controversial, (v) an action that will, in large measure, affect
wildlife populations and their habitats, important natural resources,
floodplains, wetlands, estuaries, beaches, dunes, unstable soils, steep
slopes, aquifer recharge areas, or delicate or rare ecosystems,
including endangered species; (vi) an action that will result in a
major adverse impact upon air or water quality; (vii) an action that
will adversely affect a property listed on the National Register of
Historic Places; (viii) an action that is one of several actions
underway or planned for an area and the cumulative impact of these
projects is considered significant; (ix) an action that holds potential
for threat or hazard to the public; and (x) an action that is similar
to previous actions that were determined to require an EIS. The FEMA
Instruction includes an updated list of these elements in section
3.2.B.2. The list in section 3.2.B.2 includes an additional element to
reflect that an EIS may be required for the creation, modifications to
the implementation, or reformation of a nationwide FEMA program, with
known or potentially significant impacts to the environment. FEMA also
removed elements from the list that are no longer necessary to include,
in conformance with the DHS Directive and Instruction.
    Paragraph (b)(3) of Sec.  10.8 states that in any case involving an
action that normally does not require an EIS, the Regional
Administrator may prepare an EA to determine if an EIS is required.
There is no direct corollary to this provision in the FEMA Directive or
Instruction; however, under section 3.2.B.1 of the FEMA Instruction,
the Regional Environmental Officer or other FEMA official with EHP
Approval Authority may prepare an EA as part of the process of
determining the significance of an action.
2. 10.8(c): Statutory Exclusions
    Paragraph (c) of Sec.  10.8 lists the actions that are statutorily
excluded from NEPA by section 316 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act \26\ (Stafford Act); these actions
include action taken or assistance provided under sections 402,\27\
403,\28\ 407,\29\ or 502 \30\ of the Stafford Act, and action taken or
assistance provided under section 406 \31\ of the Stafford Act that has
the effect of restoring facilities substantially as they existed before
a major disaster or emergency.\32\ Neither the DHS Directive and
Instruction nor the FEMA Directive

and Instruction contain these statutory exclusions. The appearance of
the exclusions in statute (at 42 U.S.C. 5159) precludes the necessity
of listing them in guidance. The exclusions still apply to actions that
fall under them, but FEMA is no longer listing these exclusions in
either regulation or guidance.
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    \26\ 42 U.S.C. 5121-5207.
    \27\ 42 U.S.C. 5170a, General Federal assistance FEMA may
provide under a Presidential major disaster declaration.
    \28\ 42 U.S.C. 5170b, Essential assistance (often referred to as
``emergency protective measures'') FEMA may provide under a
Presidential major disaster declaration.
    \29\ 42 U.S.C. 5173, Assistance FEMA may provide for debris
removal.
    \30\ 42 U.S.C. 5192, Federal emergency assistance FEMA may
provide under a Presidential emergency declaration.
    \31\ 42 U.S.C. 5172, Assistance FEMA may provide for the repair,
restoration, and replacement of damaged facilities.
    \32\ See 42 U.S.C. 5159.
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3. 10.8(d): CATEXs
    The introduction to paragraph (d) of Sec.  10.8 reiterates CEQ
regulation 40 CFR 1508.4 which provides for the categorical exclusion
of actions that do not individually or cumulatively have a significant
impact on the human environment and for which, therefore, neither an EA
nor EIS is required. The DHS Instruction at section V.B.1 reiterates
the CEQ regulation. As described more fully below, the DHS Instruction
in Appendix A includes a list of all DHS CATEXs, including FEMA's
CATEXs.
10.8(d)(1): CATEXs: Criteria
    Paragraph (d)(1) of Sec.  10.8 addresses the criteria FEMA uses for
determining those categories of actions that normally do not require
either an EA or EIS, including actions that have (i) minimal or no
effect on environmental quality, (ii) no significant change to existing
environmental conditions, and (iii) no significant cumulative
environmental impact. There is no direct correlation of paragraph
(d)(1) to the DHS Directive or Instruction; however, section V.B of the
DHS Instruction details the DHS process for adding to, revising, or
deleting items on the DHS list of CATEXs. Under section V.B.2 of the
DHS Instruction, a proposed action must meet three conditions in order
to be categorically excluded: (1) It must clearly fit into a CATEX
category listed in Appendix A, (2) it is not a piece of a larger
action, and (3) no extraordinary circumstances exist. Extraordinary
circumstances are discussed more fully below.
10.8(d)(2): CATEXs: List of Exclusion Categories
    Paragraph (d)(2) of Sec.  10.8 lists FEMA's CATEXs. For the most
part, the list is unchanged in the DHS Instruction. The DHS Instruction
lists the CATEXs that apply to the entire Department in sections A
through G, and N of Appendix A.\33\ It lists the CATEXs that apply only
to FEMA in section M of Appendix A. The CATEXs that are listed in
paragraph (d)(2), along with any differences between (d)(2) and the DHS
Instruction, are noted as follows:
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    \33\ Each section covers specific activities, as follows:
Section A, Administrative and Regulatory Activities; Section B,
Operational Activities; Section C, Real Estate Activities; Section
D, Repair and Maintenance Activities; Section E, Construction,
Installation, and Demolition Activities; Section F, Hazardous/
Radioactive Materials Management and Operations; Section G, Training
and Exercises; Section N, Federal Assistance Activities. CATEXs are
numbered within each section; for example, A1, A2, A3; B1, B2, B3.
---------------------------------------------------------------------------

    44 CFR 10.8(d)(2)(i): Administrative actions such as personnel
actions, travel, or procurement of supplies in support of normal day-
to-day activities and disaster related activities. The DHS Instruction
covers administrative actions generally in section A of Appendix A. It
covers personnel actions and travel in CATEX A1, and it covers
procurement in CATEX A6.
    44 CFR 10.8(d)(2)(ii): Preparation, revision, and adoption of
regulations, directives, manuals, and other guidance documents related
to actions that qualify for CATEXs. There is no direct correlation to
this CATEX in the DHS Instruction. However, the DHS Instruction does
include a CATEX (A3) for these documents if they are (1) strictly of an
administrative or procedural nature, (2) they implement, without
substantive change, statutory or regulatory requirements, (3) they
implement, without substantive change, procedures, manuals, and other
guidance documents, (4) they interpret or amend an existing regulation
without changing its environmental effect, (5) they provide technical
guidance on safety or security matters, or, (6) they provide guidance
for the preparation of security plans.
    44 CFR 10.8(d)(2)(iii): Studies that involve no commitment of
resources other than manpower and associated funding. There is no
direct correlation to this CATEX in the DHS Instruction. However, the
DHS Instruction does include a CATEX (A4) for information gathering,
data analysis and processing, information dissemination, review,
interpretation, and development of documents, including studies,
reports, proposals, analyses, literature reviews; computer modeling;
and non-intrusive intelligence gathering activities.
    44 CFR 10.8(d)(2)(iv): Inspection and monitoring activities,
granting of variances, and actions to enforce Federal, State, or local
codes, standards, or regulations. There is no direct correlation to
this CATEX in the DHS Instruction. The DHS Instruction does not include
a CATEX for the granting of variances. It does include several CATEXs
that cover inspection, monitoring, and enforcement activities as
follows: CATEX C10, Real property inspections to ensure compliance with
deed or easement restrictions; CATEX M1, with respect to FEMA's
administration of the National Flood Insurance Program, actions
associated with inspections and monitoring, enforcement of Federal,
State, Tribal, or local floodplain management codes, standards, or
regulations, except for the suspension of communities from the National
Flood Insurance Program; CATEX M11, information and data gathering and
reporting in support of emergency and disaster response and recovery
activities, including ground and aerial reconnaissance and structure
inspection; and CATEX N1, with respect to administrative actions
associated with grants management, conducting inspections, financial
audits, and monitoring activities.
    44 CFR 10.8(d)(2)(v): Training activities and both training and
operational exercises utilizing existing facilities in accordance with
established procedures and land use designations. Section G of Appendix
A of the DHS Instruction covers training and exercises. In particular,
it covers in CATEX G1 training of homeland security personnel,
including international, Tribal, State, and local agency
representatives using existing facilities where the training occurs in
accordance with applicable permits and other requirements for the
protection of the environment. In addition, CATEX G2 covers 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 and where conducted
in accordance with existing facility or land use designations.
    44 CFR 10.8(d)(2)(vi): Procurement of goods and services for
support of day-to-day and emergency operational activities, and the
temporary storage of goods other than hazardous materials, so long as
storage occurs on previously disturbed land or in existing facilities.
CATEX A6 of the DHS Instruction covers procurement of non-hazardous
goods and services, and storage, recycling, and disposal of non-
hazardous materials and wastes, that complies with applicable
requirements and is in support of routine administrative, operational,
or maintenance activities. Storage activities must occur on previously
disturbed land or in existing facilities. Examples include but are not
limited to: Office supplies, equipment, mobile assets, utility
services, chemicals and low level radio nuclides for laboratory use,
deployable emergency response supplies and equipment, and waste

disposal and contracts for waste disposal in established permitted
landfills and facilities.
    44 CFR 10.8(d)(2)(vii): The acquisition of properties and the
associated demolition/removal or relocation of structures under any
applicable authority when the acquisition is from a willing seller, the
buyer coordinated acquisition planning with affected authorities, and
the acquired property will be dedicated in perpetuity to uses that are
compatible with open space, recreational, or wetland practices. CATEX
N3 of the DHS Instruction covers Federal assistance for the acquisition
of properties and associated demolition/removal when the acquisition is
from a willing seller and land is deed restricted to open space,
recreational, wildlife habitat, or wetland uses in perpetuity. CATEX N6
covers Federal assistance for the relocation of structures and
facilities, including the realignment of linear facilities that are
part of a bigger system, when they do not involve ground disturbance of
more than one acre. This category does not apply to the following:
Actions that involve hardening or armoring of stream banks, unless they
use stream or stream bank bioengineering techniques that improve fish
passage or habitat; realignment actions affecting a regulatory floodway
if they result in any increase in flood levels during the base flood
discharge; or actions occurring seaward of the limit of moderate wave
action (or V zone when the limit of moderate wave action has not been
identified).
    44 CFR 10.8(d)(2)(viii): Acquisition or lease of existing
facilities where planned uses conform to past use or local land use
requirements. CATEX C1 of the DHS Instruction covers acquisition of an
interest in real property that is not within or adjacent to
environmentally sensitive areas, including interests less than a fee
simple, by purchase, lease, assignment, easement, condemnation, or
donation, which does not result in a change in the functional use of
the property.
    44 CFR 10.8(d)(2)(ix): Acquisition, installation, or operation of
utility and communication systems that use existing distribution
systems or facilities, or currently used infrastructure rights-of-way.
CATEX E1 of the DHS Instruction covers construction, installation,
operation, maintenance, and removal of utility and communication
systems (such as mobile antennas, data processing cable, and similar
electronic equipment) that use existing rights-of-way, easements,
utility distribution systems, and/or facilities. This is limited to
activities with towers where the resulting total height does not exceed
200 feet and where the Federal Communications Commission would not
require an EA or EIS for the acquisition, installation, operation or
maintenance.
    44 CFR 10.8(d)(2)(x): Routine maintenance, repair, and grounds-
keeping activities at FEMA facilities. CATEX D3 in the DHS Instruction
covers repair and maintenance of Department \34\-managed buildings,
roads, airfields, grounds, equipment, and other facilities which do not
result in a change in functional use or an impact on a historically
significant element or setting (e.g., replacing a roof, painting a
building, resurfacing a road or runway, pest control activities,
restoration of trails and firebreaks, culvert maintenance, grounds
maintenance, existing security systems, and maintenance of waterfront
facilities that does not require individual regulatory permits).
---------------------------------------------------------------------------

    \34\ The DHS Instruction in Section II defines ``Department'' to
include FEMA.
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    44 CFR 10.8(d)(2)(xi): Planting of indigenous vegetation. CATEX N12
of the DHS Instruction covers Federal assistance for planting of
indigenous vegetation.
    44 CFR 10.8(d)(2)(xii): Demolition of structures and other
improvements or disposal of uncontaminated structures and other
improvements to permitted off-site locations, or both. CATEX E4 of the
DHS Instruction covers the removal or demolition, along with subsequent
disposal of debris to permitted or authorized off-site locations, of
non-historic buildings, structures, other improvements, and/or
equipment in compliance with applicable environmental and safety
requirements.
    44 CFR 10.8(d)(2)(xiii): Physical relocation of individual
structures where FEMA has no involvement in the relocation site
selection or development. Although the DHS Instruction does not include
a CATEX exactly on point with this provision, CATEX N6, which covers
Federal assistance for the relocation of structures and facilities,
including the realignment of linear facilities that are part of a
bigger system, when they do not involve ground disturbance of more than
one acre, addresses it most closely.
    44 CFR 10.8(d)(2)(xiv): Granting of community-wide exceptions for
floodproofed residential basements meeting the requirements of 44 CFR
60.6(c) under the National Flood Insurance Program. This CATEX is not
discussed in the FEMA Directive or Instruction because since the
addition of this CATEX, the National Flood Insurance Program has
concluded it is unnecessary, as work on basements is not considered a
major Federal action subject to NEPA review.
    44 CFR 10.8(d)(2)(xv): Repair, reconstruction, restoration,
elevation, retrofitting, upgrading to current codes and standards, or
replacement of any facility in a manner that substantially conforms to
the preexisting design, function, and location. This CATEX is covered
in part by the statutory exclusion at 42 U.S.C. 5159, and in part by
CATEX N7 of the DHS Instruction which covers Federal assistance for the
reconstruction, elevation, retrofitting, upgrading to current codes and
standards, and improvements of pre-existing facilities in existing
developed areas with substantially completed infrastructure, when the
immediate project area has already been disturbed, and when those
actions do not alter basic functions, do not exceed capacity of other
system components, or modify intended land use. CATEX N7 also states
that this category does not include actions within or affecting streams
or stream banks or actions seaward of the limit of moderate wave action
(or V zone when the limit of moderate wave action has not been
identified).
    44 CFR 10.8(d)(2)(xvi): Improvements to existing facilities and the
construction of small scale hazard mitigation measures in existing
developed areas with substantially completed infrastructure, when the
immediate project area has already been disturbed, and when those
actions do not alter basic functions, do not exceed capacity of other
system components, or modify intended land use, provided the operation
of the completed project will not, of itself, have an adverse effect on
the quality of the human environment. This FEMA CATEX, similar to the
FEMA CATEX at 44 CFR 10.8(d)(2)(xv), is covered by CATEX N7 of the DHS
Instruction.
    44 CFR 10.8(d)(2)(xvii): Actions conducted within enclosed
facilities where all airborne emissions, waterborne effluent, external
radiation levels, outdoor noise, and solid and bulk waste disposal
practices comply with existing Federal, State, and local laws and
regulations. CATEX B1 of the DHS Instruction, while slightly different
than the FEMA CATEX, covers actions within enclosed facilities;
specifically, CATEX B1 covers research, development, testing, and
evaluation activities, or laboratory operations conducted within
existing enclosed facilities consistent with previously established
safety levels and in compliance with applicable Federal, Tribal, State,
and local requirements to protect the environment when it will

result in no, or de minimus, change in the use of the facility. CATEX
B1 requires an EA (and possibly an EIS) if the operation will
substantially increase the extent of potential environmental impacts or
is controversial.
    44 CFR 10.8(d)(2)(xviii): Planning and administrative activities in
support of emergency and disaster response and recovery. Paragraphs (A)
through (E) of Sec.  10.8(d)(2)(X)(viii) cover these activities as
follows:
    44 CFR 10.8(d)(2)(xviii)(A): Activation of the Emergency Support
Team and convening of the Catastrophic Disaster Response Group at FEMA
headquarters. CATEX M10 of the DHS Instruction covers activation of
response and recovery frameworks and operations (e.g., National
Response Framework, National Disaster Recovery Framework, National
Response Coordination Center, Regional Response Coordination Center,
Emergency Response Teams, Incident Management Assistance Teams,
Emergency Support Functions, Recovery Support Functions).
    44 CFR 10.8(d)(2)(xviii)(B): Activation of the Regional Operations
Center and deployment of the Emergency Response Team, in whole or in
part. This FEMA CATEX, similar to the FEMA CATEX at 44 CFR
10.8(d)(2)(xviii)(A), is covered by CATEX M10 of the DHS Instruction.
    44 CFR 10.8(d)(2)(xviii)(C): Deployment of Urban Search and Rescue
teams. CATEX M3 of the DHS Instruction covers Urban Search and Rescue
(USR) activities, including deployment of USR teams.
    44 CFR 10.8(d)(2)(xviii)(D): Situation Assessment including ground
and aerial reconnaissance. CATEX M11 of the DHS Instruction covers
information and data gathering and reporting in support of emergency
and disaster response and recovery activities, including ground and
aerial reconnaissance and structure inspection.
    44 CFR 10.8(d)(2)(xviii)(E): Information and data gathering and
reporting efforts in support of emergency and disaster response and
recovery and hazard mitigation. This FEMA CATEX, similar to the FEMA
CATEX at 44 CFR 10.8(d)(2)(xviii)(D), is covered by CATEX M11 of the
DHS Instruction.
    44 CFR 10.8(d)(2)(xix): Emergency and disaster response, recovery
and hazard mitigation activities under the Stafford Act. Paragraphs (A)
through (O) of Sec.  10.8(d)(2)(xix) cover these activities as follows:
    44 CFR 10.8(d)(2)(xix)(A): General Federal Assistance (section 402
of the Stafford Act). This provision is statutorily excluded from NEPA
by 42 U.S.C. 5159. The DHS Instruction does not include statutory
exclusions in its list of CATEXs.
    44 CFR 10.8(d)(2)(xix)(B): Essential Assistance (section 403 of the
Stafford Act). This provision is statutorily excluded from NEPA by 42
U.S.C. 5159. The DHS Instruction does not include statutory exclusions
in its list of CATEXs.
    44 CFR 10.8(d)(2)(xix)(C): Debris Removal (section 407 of the
Stafford Act). This provision is statutorily excluded from NEPA by 42
U.S.C. 5159. The DHS Instruction does not include statutory exclusions
in its list of CATEXs.
    44 CFR 10.8(d)(2)(xix)(D): Temporary Housing (section 408 of the
Stafford Act), except locating multiple mobile homes or other readily
fabricated dwellings on sites, other than private residences, not
previously used for such purposes. CATEX N14(b) of the DHS Instruction
generally covers the Individuals and Households Program (IHP)
(authorized by section 408 of the Stafford Act), which includes
temporary housing. However, CATEX N14(b) excludes any grant that will
be used for purchasing mobile homes or other readily fabricated
dwellings.
    44 CFR 10.8(d)(2)(xix)(E) Unemployment Assistance (section 410 of
the Stafford Act). CATEX N14(a) of the DHS Instruction covers
unemployment assistance under section 410 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(F): Individual and Family Grant Program
(section 411 of the Stafford Act), except for grants that will be used
for restoring, repairing or building private bridges, or purchasing
mobile homes or other readily fabricated dwellings. The Individual and
Family Grant Program is a defunct program (the IHP superseded it) and
the DHS Instruction does not include it in its list of CATEXs.
    44 CFR 10.8(d)(2)(xix)(G): Food Coupons and Distribution (section
412 of the Stafford Act). CATEX N14(c) of the DHS Instruction covers
food coupons and distribution under section 412 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(H): Food Commodities (section 413 of the
Stafford Act). CATEX N14(d) of the DHS Instruction covers food
commodities under section 413 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(I): Legal Services (section 415 of the
Stafford Act). CATEX N14(e) of the DHS Instruction covers legal
services under section 415 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(J): Crisis Counseling Assistance and
Training (section 416 of the Stafford Act). CATEX N14(f) of the DHS
Instruction covers crisis counseling and training under section 416 of
the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(K): Community Disaster Loans (section 417 of
the Stafford Act). CATEX N14(g) of the DHS Instruction covers community
disaster loans under section 417 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(L): Emergency Communications (section 418 of
the Stafford Act). CATEX N14(h) of the DHS Instruction covers emergency
communications under section 418 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(M): Emergency Public Transportation (section
419 of the Stafford Act). CATEX N14(i) of the DHS Instruction covers
emergency public transportation under section 419 of the Stafford Act.
    44 CFR 10.8(d)(2)(xix)(N): Fire Management Assistance Grants
(section 420 of the Stafford Act). CATEX N14(j) of the DHS Instruction
covers fire management assistance grants under section 420 of the
Stafford Act.
    44 CFR 10.8(d)(2)(xix)(O): Federal Emergency Assistance (section
502 of the Stafford Act). This provision is statutorily excluded from
NEPA by 42 U.S.C. 5159. The DHS Instruction does not include statutory
exclusions in its list of CATEXs.
    44 CFR 10.8(d)(3): CATEXs: Extraordinary circumstances.
    Paragraph (d)(3) of Sec.  10.8 covers extraordinary circumstances.
It requires an EA to be prepared if extraordinary circumstances exist
such that an action that is categorically excluded from NEPA may have a
significant adverse environmental impact. Similarly, under the DHS
Instruction at section V.B.2.c, the presence of an extraordinary
circumstance precludes the application of a CATEX. Paragraphs (i)
through (x) of Sec.  10.8(d)(3) list the extraordinary circumstances
that may have a significant environmental impact. The extraordinary
circumstances listed in paragraphs (d)(3)(i) through (x), along with
any differences between (d)(3)(i) through (x) and the DHS Instruction,
are as follows:
    44 CFR 10.8(d)(3)(i) Greater scope or size than normally
experienced for a particular category of action. The DHS Instruction at
section V.B.2.c.viii correlates almost exactly to this provision, but
adds the word ``significantly'' before ``greater scope or size.''
    44 CFR 10.8(d)(3)(ii) Actions with a high level of public
controversy. The DHS Instruction at section V.B.2.c.vi covers actions
likely to be controversial. Specifically, it covers actions where the
effect on the quality of the human environment is likely to be highly

controversial in terms of scientific validity, likely to be highly
uncertain, or likely to involve unique or unknown environmental risks,
including effects that may result from the use of new technology or
unproven technology. However, it states that controversy over,
including public opposition to, a proposed action absent any
demonstrable potential for significant environmental impacts does not
itself constitute an extraordinary circumstance.
    44 CFR 10.8(d)(3)(iii) Potential for degradation, even though
slight, of already existing poor environmental conditions. The DHS
Instruction in section V.B.2.c.ix covers actions that have the
potential for significant degradation of already existing poor
environmental conditions, as well as the initiation of a potentially
significant environmental degrading influence, activity, or effect in
areas not already significantly modified from their natural condition.
    44 CFR 10.8(d)(3)(iv) Employment of unproven technology with
potential adverse effects or actions involving unique or unknown
environmental risks. As noted above, the DHS Instruction at section
V.B.2.c.vi covers effects that may result from the use of unproven
technology likely to involve unique or unknown environmental risks.
    44 CFR 10.8(d)(3)(v) Presence of endangered or threatened species
or their critical habitat, or archaeological, cultural, historical, or
other protected resources. The DHS Instruction at section V.B.2.c.iii
covers actions that may have a potentially significant effect on
historic properties (e.g., districts, sites, buildings, structures, or
objects) that are listed in or eligible for listing in the National
Register of Historic Places, affect traditional cultural properties or
sacred sites, or lead to the loss or destruction of a significant
scientific, cultural, or historical resource.
    44 CFR 10.8(d)(3)(vi) Presence of hazardous or toxic substances at
levels which exceed Federal, State, or local regulations or standards
requiring action or attention. The DHS Instruction at section V.B.2.c.v
covers a potential or threatened violation of a Federal, State, or
local law or requirement imposed to protect the environment, including
Federal, Tribal, State, or local requirements to control hazardous or
toxic substances.
    44 CFR 10.8(d)(3)(vii) Actions with the potential to affect special
status areas adversely or other critical resources such as wetlands,
coastal zones, wildlife refuge and wilderness areas, wild and scenic
rivers, sole or principal drinking water aquifers. The DHS Instruction
at section V.B.2.c.ii covers actions that may have a potentially
significant effect on species or habitats protected by the Endangered
Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act,
Magnuson-Stevens Fishery Conservation and Management Act, or other law
protecting a species or habitat. In addition, the DHS Instruction at
section V.B.2.c.iv covers actions that may have a potentially
significant effect on an environmentally sensitive area.\35\
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    \35\ The DHS Instruction defines ``environmentally sensitive
area'' as an area designated by law, regulation, or executive order
that merits special protection or stewardship because of its value
as a natural, historic, or cultural resource. Examples include, but
are not limited to: (1) Proposed or designated critical habitat for
threatened or endangered species; (2) properties listed or eligible
for listing on the National Register of Historic Places; and (3)
areas having special designation or recognition such as prime or
unique agricultural lands, coastal zones, designated wilderness or
wilderness study areas, wild and scenic rivers, 100 year
floodplains, wetlands, sole source aquifers, Marine Sanctuaries,
National Wildlife Refuges, National Parks, National Monuments,
essential fish habitat, etc. (emphasis added).
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    44 CFR 10.8(d)(3)(viii) Potential for adverse effects on health or
safety. The DHS Instruction at section V.B.2.c.i covers actions that
may have a potentially significant effect on public health or safety.
    44 CFR 10.8(d)(3)(ix) Potential to violate a Federal, State, local,
or Tribal law or requirement imposed for the protection of the
environment. The DHS Instruction at section V.B.2.c.v covers actions
that may have a potential or threatened violation of a Federal, State,
or local law or requirement imposed to protect the environment.
    44 CFR 10.8(d)(3)(x) Potential for significant cumulative impact
when the proposed action is combined with other past, present, and
reasonably foreseeable future actions, even though the impacts of the
proposed action may not be significant by themselves. The DHS
Instruction at section V.B.2.c.x covers actions related to other
actions with individually insignificant, but cumulatively significant
impacts.
    44 CFR 10.8(d)(4): CATEXs: Documentation.
    Paragraph (d)(4) of Sec.  10.8 requires the Regional Administrator
to prepare and maintain an administrative record of each proposal that
is determined to be categorically excluded from the preparation of an
EA or EIS. The DHS Instruction at section V.B.4 requires a record of
environmental consideration whenever a CATEX denoted by an asterisk is
applied \36\ in order to document that potential impacts to the human
environment have been appropriately considered and the determination
that the proposed action is either appropriately categorically excluded
or must be analyzed further through an EA or EIS process. In addition,
the DHS Instruction acknowledges there may be instances where a DHS
component may choose to prepare a record of environmental consideration
when it is not otherwise required. It is not mandatory, however.
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    \36\ CATEXs denoted by an asterisk include classes of actions
that have a higher possibility of involving extraordinary
circumstances that may preclude the use of a CATEX. See DHS
Instruction section V.B.4.
---------------------------------------------------------------------------

    44 CFR 10.8(d)(5): CATEXs: Revocation.
    Paragraph (d)(5) of Sec.  10.8 requires the Regional Administrator
to revoke a determination of a CATEX and require full environmental
review if, subsequent to granting an exclusion, the Regional
Administrator determines that due to changes in the proposed action or
in light of new findings, the action no longer meets the requirements
for a CATEX. Although there is no specific provision directly on point
in the new DHS or FEMA Directives or Instructions, the FEMA Instruction
in section 2.2.E does require FEMA to communicate to applicants the
need to notify FEMA of any changes to the proposed action,
alternatives, or project schedule; the FEMA Instruction specifically
states that when changes to project plans create substantial changes or
significant new circumstances or information relevant to EHP reviews,
FEMA will seek assistance from applicants so FEMA can prepare
supplemental or additional EHP analyses as required under EHP
requirements.
    44 CFR 10.8(d)(6): CATEXs: Changes to the list of exclusion
categories.
    Paragraph (d)(6) of Sec.  10.8 requires FEMA to continually review
and refine the list of exclusion categories as additional categories
are identified and experience is gained in the CATEX process. Paragraph
(d)(6) also outlines the internal process for a FEMA entity to
recommend additions or changes to the list. The DHS Instruction in
section V.B.3 addresses the establishment, deletion, and revision of
CATEXs. Under the DHS Instruction, components forward proposals to
substantively revise or establish new CATEXs (together with
justification) to the Director of SEP for approval. Proposals to
substantively revise or establish new CATEXs require an administrative
record that meets CEQ standards and are subject to both CEQ review and
public comment. SEP reviews such proposals to determine whether the
CATEX is appropriate for inclusion in the DHS-wide list or a component-
specific list. SEP revises Appendix A, Table 1 to

include approved new or substantially revised CATEXs. In addition,
components notify SEP of non-substantive revisions to or deletions of
component-specific CATEXs so that SEP can amend the table accordingly.
Finally, all CATEXs and the list of extraordinary circumstances are
reviewed by SEP in consultation with the components at least every 7
years to ensure they are still appropriate, and to identify any changes
that may be needed in light of additional experience gained in applying
the CATEXs to proposed DHS actions.
4. 44 CFR 10.8(e): Actions That Normally Require an EA
    Paragraph (e) of Sec.  10.8 requires the Regional Administrator to
prepare an EA when a proposal is not one that normally requires an EIS
and does not qualify as a CATEX. Similarly, the DHS Instruction in
section V.C.2.a states that when a proposed action is not in a category
of actions described in an available DHS CATEX and there is not enough
information to determine that the proposed action will have significant
environmental impacts requiring an EIS, the EA process is used to
determine, through environmental impact evaluation and opportunity for
public involvement, if the impacts on the quality of the human
environment would be significant or not.
5. 44 CFR 10.8(f): Documentation
    This paragraph 10.8(f) is duplicative of paragraph 10.8(d)(4),
which is addressed earlier in this preamble.
6. 44 CFR 10.8(g): Actions That Normally Require an EA
    This paragraph 10.8(g) is duplicative of paragraph 10.8(e), which
is addressed earlier in this preamble.

I. 44 CFR 10.9 Preparation of EAs.

1. 44 CFR 10.9(a) When To Prepare.
    Paragraph (a) of Sec.  10.9 requires the Regional Administrator to
begin preparation of an EA as early as possible after the determination
that an assessment is required, and may prepare an assessment at any
time to assist planning and decision making. The DHS Instruction covers
preparation of an EA in section V.C. It does not specifically state
that an EA should be prepared as early as possible, but it does state
that a component can decide to prepare an EA as a best practice
planning tool to inform decision-makers on the environmental impacts of
its actions.
2. 44 CFR 10.9(b) Content and Format
    Paragraph (b) of Sec.  10.9 covers the content and format of an EA,
and requires the EA to include the purpose and need for the proposed
action, a description of the proposed action, alternatives considered,
environmental impact of the proposed action and alternatives, listing
of agencies and persons consulted, and a conclusion of whether to
prepare an EIS. The DHS Instruction includes the same requirements in
section V.C.8.
3. 44 CFR 10.9(c) Public Participation
    Paragraph (c) of Sec.  10.9 requires the Regional Administrator to
involve environmental agencies, applicants, and the public, to the
extent practicable, in preparing EAs. In determining ``to the extent
practicable,'' it requires the Regional Administrator to consider the
magnitude of the proposal, likelihood of public interest, the need to
act quickly, the likelihood of meaningful public comment, national
security classification issues, the need for permits, and the statutory
authority of the environmental agency regarding the proposal.
    The DHS Instruction at section V.C.7 covers the public involvement
process involving an EA. It states that public involvement requirements
can be met during scoping at the start of an evaluation and/or by
distributing a draft EA and draft finding of no significant impact for
public review. It states that where a good faith effort has been used
to seek out and involve the public in the drafting of an EA and no
significant impacts (including potential for an impact on the quality
of the human environment that is highly controversial) have been
identified, a component can complete an EA and finding of no
significant impact without circulating a draft document for public
review. It states that a good faith effort includes consideration of
the extent of other related public involvement efforts, as well as
consideration of the following factors found in section IV.G of the DHS
Instruction:
     The size and type of the proposed action.
     Whether the proposed action is of international, national,
regional, or local interest.
     The potential environmental impacts of the proposed
action.
     Extent of previous environmental analysis for the proposed
action and/or the geographical location where the action would occur.
     Extent of anticipated controversy over the potential
environmental effects of the proposed action, based on DHS experience
with similar proposed actions.
     Urgency of the proposed action.
     National security classification of the proposed action.
     The presence of Tribal, minority, or low-income
populations that may be impacted by the proposed action.
     Other laws and requirements to protect the environment
that may require public review; for example, a determination of
conformity with a State air quality implementation plan may require
public review.

In addition, the FEMA Instruction at section 3.4.D.3 addresses public
involvement, stating that FEMA will involve environmental agencies,
applicants, tribes, and the public, to the extent practicable, in
preparing EAs and EISs. It states that in determining ``to the extent
practicable'' and appropriate public involvement methods and timing,
FEMA will consider the following (which mirror paragraph (c) of Sec.
10.9):
     Magnitude of the proposal;
     Likelihood of public interest;
     Need to act quickly;
     Likelihood of meaningful public comment;
     National security classification issues;
     Need for permits; and
     Statutory authority of environmental agency regarding the
proposal.
4. 44 CFR 10.9(d) When To Prepare an EIS
    Paragraph (d) of Sec.  10.9 requires the Regional Administrator to
prepare an EIS for all major Agency actions significantly affecting the
quality of the human environment. It states that the test of what is a
``significant'' enough impact to require an EIS is found in the CEQ
regulations at 40 CFR 1508.27 (defining ``significantly''). Similarly,
the DHS Instruction at section V.D.1 states that an EIS is prepared for
major Federal actions significantly affecting the quality of the human
environment (see 40 CFR part 1502, criteria for an EIS), and in section
V.D.2 states that a component prepares an EIS when its proposed action
and/or any reasonable alternative(s) would have significant
environmental effects, including actions where an EA concluded that
there would be significant impacts, and therefore preparation of an EIS
was necessary. In addition, the FEMA Instruction at section 3.2.B.2
lists the types of actions likely to be significant and thus may
trigger the preparation of an EIS.
5. 44 CFR 10.9(e) Finding of No Significant Impact
    Paragraph (e) of Sec.  10.9 states that if the Regional
Administrator determines

on the basis of the EA not to prepare an EIS, the Regional
Administrator shall prepare a finding of no significant impact in
accordance with 40 CFR 1501.4(e) of the CEQ regulations. It states that
the assessment and the finding shall be submitted to the Environmental
Officer and the Office of Chief Counsel for approval, and if such
approval is obtained, the Regional Administrator shall then make the
finding of no significant impact available to the public as specified
in 40 CFR 1506.6 of the CEQ regulations. Finally, paragraph (e) states
that a finding of no significant impact is not required when the
decision not to prepare an EIS is based on a CATEX.
    The DHS Instruction in section V.C.9 states that a component's
final determination on the environmental impacts of a proposed action
is required upon the completion of an EA. It states that the EA process
concludes with a finding of no significant impact when (1) the
evaluation of the impacts of the proposed action on the human
environment indicates that the environmental effects would not be
significant, or (2) the component commits to including measures in the
proposed action that mitigate impacts to a level of insignificance. The
DHS Instruction states that a finding of no significant impact is a
separate document from an EA, but may be integrated into any other
appropriate decision-making document that can be made publicly
available, provided it includes the minimum content requirements in
Section V.C.10 of the DHS Instruction.
    The FEMA Instruction in section 3.2.A.2.b states that upon
documenting a CATEX, the NEPA process is complete (implying a finding
of no significant impact is not required). Section VII of the FEMA
Directive describes procedures, program requirements, and delegation of
EHP Approval Authority required to approve findings of no significant
impacts.
6. 44 CFR 10.9(f) Environmental Officer or Office of Chief Counsel
Disallowance
Paragraph (f) of Sec.  10.9 states that if the Environmental Officer or
Office of Chief Counsel disagrees with the finding of no significant
impact, the Regional Administrator shall prepare an EIS, and prior to
preparation of an EIS, the Regional Administrator shall forward a
notice of intent to prepare an EIS to the Environmental Officer, who
shall publish such notice in the Federal Register.
    As stated above, section VII of the FEMA Directive addresses
program requirements and delegations of EHP Approval Authority for
findings of no significant impacts. The dual signatory process outlined
in section VII of the FEMA Directive is an updated structure that
operates similarly to the structure outlined in 44 CFR part 10. Under
the FEMA Directive, the Director of OEHP or delegate must approve a
finding of no significant impact, and the Office of Chief Counsel
serves in an advisory role. The Environmental Officer or delegate would
consult with the Office of Chief Counsel and take under advisement the
legal counsel provided.
7. 44 CFR 10.9(g) EIS Determination of Regional Administrator
    Paragraph (g) of Sec.  10.9 states that the Regional Administrator
\37\ may decide on his/her own to prepare an EIS, and in such case, the
Regional Administrator shall forward a notice of intent to prepare the
EIS to the Environmental Officer who shall publish such notice in the
Federal Register. EHP responsibilities outlined in the FEMA Directive
represent a new structure which operates differently than the structure
set out in 44 CFR part 10. Under the new structure, the Regional
Administrator would notify the appropriate EHP personnel in his/her
region to prepare the notice of intent (FEMA Instruction section
3.2.B.2).
---------------------------------------------------------------------------

    \37\ The regulatory text incorrectly refers to ``Regional
Director''; FEMA updated internal titles by technical amendment in
2009 (74 FR 15328) but overlooked the update for this reference.
---------------------------------------------------------------------------

J. 44 CFR 10.10 Preparation of EISs

1. 44 CFR 10.10(a) Scoping
    Paragraph (a) of Sec.  10.10 states that after determination that
an EIS will be prepared and publication of the notice of intent, the
Regional Administrator will initiate the scoping process in accordance
with 40 CFR 1501.7 of the CEQ regulations. The FEMA Instruction in
section 3.2.A.1 states that FEMA will determine the range of issues
that need to be addressed and the level of documentation required
during the scoping process, and as part of the scoping process, FEMA
may establish time limits for the NEPA process and hold early scoping
meetings to engage stakeholders and the public at large. It states that
the FEMA official with the appropriate level of EHP approval authority
will lead these scoping efforts.
2. 44 CFR 10.10(b) Preparation
    Paragraph (b) of Sec.  10.10 states that based on the scoping
process, the Regional Administrator will begin preparation of the EIS,
and detailed procedures for preparation of the EIS are provided in Part
1502 of the CEQ regulations. The DHS Instruction addresses preparation
of the EIS in section V.D and also refers to Part 1502 of the CEQ
regulations. The FEMA Instruction discusses EIS preparation in Chapter
3 and includes appropriate references to the DHS Instruction and CEQ
regulations.
3. 44 CFR 10.10(c) Supplemental EISs
    Paragraph (c) of Sec.  10.10 states that the Regional Administrator
may at any time supplement a draft or final EIS, and that the Regional
Administrator shall prepare a supplement to either a draft or final EIS
when required under the criteria set forth in 40 CFR 1502.9(2).\38\ It
states that the Regional Administrator will prepare, circulate, and
file a supplement to a statement in the same fashion (exclusive of
scoping) as a draft or final statement and will introduce the
supplement into their formal administrative record.
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    \38\ This appears to be a typo, as there is no 40 CFR 1502.9(2).
The correct cite is most likely 40 CFR 1502.9(c), which addresses
circumstances that would warrant a supplemental EIS and procedures
for preparing one.
---------------------------------------------------------------------------

    The DHS Instruction in section V.D.6 addresses supplemental EISs.
It states that a component may prepare a supplemental EIS (SEIS) if
there are substantial changes to the proposal that are relevant to
environmental concerns or if there are significant new circumstances or
information relevant to environmental concerns and bearing on the
proposal or its impacts, and refers to 40 CFR 1502.9(c)(1). It states
that a component may also supplement a draft EIS (DEIS) or Final EIS
(FEIS) at any time to further the evaluation presented in the original
EIS.
    The DHS Instruction further states that components prepare,
circulate, and file a supplement to a DEIS or FEIS in the same manner
as any other DEIS or FEIS, except that scoping is optional for an SEIS
(referring to 40 CFR 1502.9(c)(4)), and that public notice methods are
chosen that are appropriate for reaching persons who may be interested
in or affected by the proposal; if an FEIS is supplemented after a
record of decision has been completed, the component must complete a
new record of decision and publishes a notice of availability of the
record of decision and the supplemental information in the Federal
Register.
    The FEMA Instruction briefly addresses supplemental analyses at
section 3.6.F and refers back to the DHS Instruction at section V.D.6.

4. 44 CFR 10.10(d) Circulation of EISs
    Paragraph (d) of Sec.  10.10 requires the Regional Administrator to
circulate draft and final EISs as prescribed in 40 CFR 1502.19 \39\ of
the CEQ regulations, and that prior to signing off on a draft or final
EIS, the Regional Administrator shall obtain the approval of the
Environmental Officer and the Office of Chief Counsel. The FEMA
Instruction at section 3.5.B.3. requires FEMA to follow 40 CFR 1502.19.
As discussed above, the FEMA Directive addresses EHP Approval Authority
of FEMA personnel, which reflects a different internal agency approval
structure than that outlined in 44 CFR part 10.
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    \39\ 40 CFR 1502.19 addresses circulation of the EIS and
requires agencies to circulate it to (1) any Federal agency which
has jurisdiction by law or special expertise with respect to any
environmental impact involved, (2) any appropriate Federal, State or
local agency authorized to develop and enforce environmental
standards, (3) the applicant, (4) any person, organization, or
agency requesting the EIS, and (5) in the case of a final EIS, any
person, organization, or agency which submitted substantive comments
on the draft.
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K. 44 CFR 10.11 Environmental information

    Section 10.11 states that interested persons may contact the
Environmental Officer or the Regional Administrator for information
regarding FEMA's compliance with NEPA. The FEMA Directive is intended
for internal circulation within FEMA, not as a general reference for
the public, so it does not include guidance for the general public. The
FEMA Instruction at section 2.2 discusses Program responsibilities for
supporting applicants throughout the EHP process including meeting
requirements for notification and consultation with affected and
interested parties (section 2.2.B.3). In addition, the DHS Directive
and Instruction are on the DHS Web site at http://www.dhs.gov/national-environmental-policy-act, and FEMA will post the FEMA Directive and
Instruction on the FEMA public Web site at www.fema.gov/media-library/assets/documents/118323. The public may find further information about
FEMA's EHP process and requirements at www.fema.gov/office-environmental-planning-and-historic-preservation.

L. 44 CFR 10.12 Pre-implementation Actions

1. 44 CFR 10.12(a) Decision Making
    Paragraph (a) of Sec.  10.12 requires the Regional Administrator to
ensure that decisions are made in accordance with the policies and
procedures of NEPA, and that the NEPA process is integrated into the
decision making process. The FEMA Directive in section VI.A requires
the FEMA Administrator to consider the impacts of decisions on the
human environment before actions are taken or decisions are made
(VI.A.2.i), to regularly articulate the value of EHP (which includes
NEPA) in the FEMA decision making process to managers and staff
(VI.A.1.ii), and to fully integrate the EHP requirements into planning
and decision-making for all policies, programs, activities, and
operations of FEMA (VI.A.1.v).
    Paragraph (a) of Sec.  10.12 also addresses the existence of a
variety of FEMA programs, notes that each program will necessarily have
different decision making procedures, and notes that review and
approval authority may be exercised at various levels. As noted above,
the FEMA Directive addresses EHP Approval Authority which can exist at
various different FEMA levels (e.g., Heads of Offices, Programs, or
Directorates; the Regional Administrators; Federal Coordinating
Officers; Regional Environmental Officers), as well as the option for
delegation of authority to appropriate personnel.
    Finally, paragraph (a) of Sec.  10.12 lists specific requirements
that the Regional Administrator must follow under NEPA, for example, to
consider the specific alternatives analyzed in an EIS when evaluating
the proposal which is the subject of the EIS. The DHS Directive and
Instruction and FEMA Directive and Instruction (section 3.2.C) include
the same requirements and do not deviate from those listed in Sec.
10.12, as these requirements are dictated by NEPA and the CEQ
regulations.
2. 44 CFR 10.12(b) Record of Decision
    Paragraph (b) of Sec.  10.12 states that in those cases requiring
an EIS, the Regional Administrator at the time of his/her decision, or
if appropriate, his/her recommendation to Congress, shall prepare a
concise public record of that decision. It states that the record of
decision is not intended to be an extensive, detailed document for the
purpose of justifying the decision, but rather, it is a concise
document that sets forth the decision and describes the alternatives
and relevant factors considered as specified in 40 CFR 1505.2. Finally,
it states that the record of decision will normally be less than 3
pages in length.
    The DHS Instruction in section V.D.10 addresses the record of
decision. It states that when a component decides whether or not to
take action on a proposal covered by an EIS, it prepares a record of
decision which contains the requirements listed in 40 CFR 1505.2. It
states that a record of decision is a separate document from the EIS,
and may be integrated into any other appropriate decision-making
document that can be made publicly available provided that the content
requirements are met, presents all the factors an agency considered
when it reached its decision on whether to, and if so how to, proceed
with the proposed action.
    The FEMA Instruction in section 3.5.B.3 also addresses the record
of decision, stating that an EIS will conclude with a record of
decision to provide a concise public record of the decision whether to
proceed with a proposed action. It states that a record of decision
will complete the NEPA process, and will include the basis for the
decision, summarize any EHP mitigation measures, and describe the
alternatives and relevant factors considered during the NEPA process.
It states that it will identify the environmentally preferred
alternative, which is the alternative that will promote the national
environmental policy as expressed in NEPA Section 101.
    Neither the DHS Instruction nor the FEMA Instruction recommends a
specific page length, but both refer to the ``concise'' nature of the
document.
3. 44 CFR 10.12(c) Mitigation & 44 CFR 10.12(d) Monitoring
    Paragraph (c) of Sec.  10.12 addresses mitigation throughout the
NEPA process and paragraph (d) of Sec.  10.12 addresses monitoring of
the mitigation. Specifically, paragraph (c) states that the Regional
Administrator shall consider mitigating measures to avoid or minimize
environmental harm and, in particular, harm to or within flood plains
and wetlands. It states that mitigation measures or programs will be
identified in the EIS and made available to decision makers, and that
mitigation and other conditions established in the EIS or during its
review and committed as part of the decision shall be implemented by
the Regional Administrator.
    Paragraph (d) states that if the Regional Administrator determines
that monitoring is applicable for established mitigation, a monitoring
program will be adopted to assure the mitigation measures are
accomplished, and that the Regional Administrator shall provide
monitoring information, upon request, as specified in 40 CFR 1505.3
(regarding monitoring). Finally, it states that this does not include
standing or blanket requests for periodic reporting.
    The DHS Instruction at section V.E addresses mitigation and
monitoring together and provides requirements

similar to those stated in Sec.  10.12. It states that when a component
commits to mitigation measures to reduce or eliminate potential adverse
effects of an action, it is essential that the component implements the
measures and monitors their effectiveness. It states that components
commit to appropriate, practical, and implementable mitigation measures
identified in a finding of no significant impact or record of decision
that they have sufficient legal authority to implement or impose on
applicants.
    The DHS Instruction describes mitigation measures as practical and
implementable, i.e., those that are reasonably expected to achieve
their intended purpose; implementable mitigation measures require not
only that the component have the appropriate legal authority, but also
that it can reasonably foresee the availability of resources for
performing the mitigation. It states that where the mitigation is being
imposed on an applicant for DHS funding or approval to perform their
proposed action, components make the mitigation a condition of DHS
approval of the applications from persons or organizations external to
DHS (referring to the CEQ regulation on monitoring at 40 CFR 1505.3).
    The DHS Instruction stresses that adequately documenting and
monitoring mitigation advances NEPA's purpose of informed and
transparent environmental decision-making, and that failure to
implement, document, and/or monitor mitigation may undermine the
integrity of the NEPA analysis, and may compromise the adequacy of the
NEPA compliance effort. Once a component has committed to mitigation
measures, the DHS Instruction requires all decisions to modify or
suspend those measures to be made in consultation with the DHS Office
of General Counsel and the component's respective Environmental
Planning Program Manager.\40\
---------------------------------------------------------------------------

    \40\ This is FEMA's Director of the Office of Environmental
Planning and Historic Preservation. See FEMA Directive section VI.E.
---------------------------------------------------------------------------

    The FEMA Instruction also addresses mitigation and monitoring
together, in section 2.3.A. It states FEMA will consider EHP mitigation
measures to avoid or minimize impacts identified during the EHP review
process. It states that avoidance measures are the preferred method of
EHP mitigation, and only when avoidance cannot be achieved because it
is not feasible, practicable, or reasonable, may FEMA consider
minimizing, rectifying, or compensating for the impacts of the action,
in that order. It states that EHP mitigation measures will be
identified in EHP review documentation as well as appropriate award
documents and made available to decision makers, and that if FEMA
determines that monitoring is applicable for established EHP
mitigation, a monitoring program will be adopted to assure EHP
mitigation measures are implemented and intended outcomes are
accomplished (section 2.3.B.2).

M. 44 CFR 10.13 Emergencies

    Section 10.13 states that in the event of an emergency, the
Regional Administrator may be required to take immediate action with
significant environmental impact. It states that the Regional
Administrator shall notify the Environmental Officer of the emergency
action at the earliest possible time so that the Environmental Officer
may consult with CEQ, and in no event shall any Regional Administrator
delay an emergency action necessary for the preservation of human life
for the purpose of complying with the provision of this directive or
the CEQ regulations. Section VI of the DHS Instruction addresses
emergency actions, outlining four phases to apply when performing NEPA
activities during an emergency: (1) Secure lives and protect property,
(2) determine applicability of NEPA, (3) notification of SEP, (4)
determine level of NEPA evaluation.
    The FEMA Instruction addresses emergencies in Sec.  2.5 and covers
the following circumstances: (1) Legal Exemption. FEMA will determine
whether a legal exemption related to the proposed emergency action
exists and, if so, the EHP requirements to which the exemption applies;
(2) Principles, Requirements, and Guidelines do not apply when there is
emergency work essential to save lives and protect property, public
health, and safety performed under Sections 403 and 502 of the Stafford
Act (42 U.S.C. 5170b and 5192); (3) Stafford Act declaration: FEMA may
provide funding for emergency actions taken in direct response to a
disaster event that were not subject to EHP review provided the actions
satisfy other eligibility requirements as established by FEMA programs;
(4) Programmatic EHP Review and Existing Documentation: In cases where
programmatic consultations, memoranda of agreement, biological
assessments, general permits, and environmental analyses have already
been conducted for the emergency action, FEMA will incorporate the
existing documentation into its own analyses and documentation; (5)
Emergency Consultations and Notifications: If the emergency action is
not legally exempted and a previous analysis covering the action does
not exist, emergency consultation with the appropriate resource/
regulatory agency may be required. FEMA will consult with the
appropriate resource/regulatory agency as soon as possible. The FEMA
Instruction defines ``emergency'' for purposes of this section.\41\
---------------------------------------------------------------------------

    \41\ The FEMA Instruction defines ``emergency'' as ``A natural
or man-made disaster or other phenomenon of an exceptional,
inevitable, and irresistible character demanding immediate action
for the protection of human life, public safety, public health, or
the environment and avoidance of significant loss of property if it
relates to one of the other factors. This definition includes but is
not limited to situations triggering emergency and major disaster
declarations by the President under the Stafford Act.'' The Stafford
Act defines ``emergency'' for purposes of a Presidential emergency
declaration as ``any occasion or instance for which, in the
determination of the President, Federal assistance is needed to
supplement State and local efforts and capabilities to save lives
and to protect property and public health and safety, or to lessen
or avert the threat of a catastrophe in any part of the United
States.'' See 42 U.S.C. 5122(1).
---------------------------------------------------------------------------

N. 44 CFR 10.14 Flood Plains and Wetlands

    Section 10.14 states that for any action taken by FEMA in a flood
plain or wetland, the provisions of Part 10 are supplemental to, and
not instead of, the provisions of the FEMA regulation implementing
Executive Order 11988, Floodplain Management, and Executive Order
11990, Protection of Wetlands (44 CFR part 9). The introduction
paragraph of Chapter 2 of the FEMA Instruction refers to other EHP
requirements including Executive Orders 11988 and 11990, and indicates
that the FEMA Directive and Instruction do not serve as implementing
procedures for those requirements. The FEMA Directive and Instruction
do not take the place of 44 CFR part 9.

O. 44 CFR Part 60 Criteria for Land Management and Use

    Section 60.6 states that the decision whether an EIS or other
environmental document will be prepared, will be made in accordance
with the procedures set out in 44 CFR part 10. Because NEPA compliance
procedures will no longer be set out in Part 10, but are set out in CEQ
regulations, DHS implementing procedures, and supplemental
instructions, FEMA is removing the reference to Part 10 and stating
that the decision will be made in accordance with applicable
environmental and historic preservation laws, regulations, Executive
Orders, and agency policy.

P. 44 CFR Part 78 Flood Mitigation Assistance

    Section 78.11 states that projects must be in conformance with 44
CFR part 10, and any applicable environmental laws and regulations.
FEMA is simply removing the reference to Part 10. This change reflects
that projects must conform with applicable environmental laws and
regulations, including NEPA requirements, even though those
requirements are no longer set out in Part 10.

Q. 44 CFR Part 79 Flood Mitigation Grants

    Section 79.3 states that it is FEMA's responsibility to ``[c]omply
with applicable Federal statutory, regulatory, and Executive Order
requirements related to environmental and historic preservation
compliance, including reviewing and supplementing, if necessary, the
environmental analyses conducted by the State and subgrantee in
accordance with part 10 of this chapter.'' 44 CFR 79.3(a)(6). FEMA is
replacing the reference to Part 10 with a reference to applicable laws,
regulations, and agency policy, as FEMA will comply with applicable CEQ
regulations and Department and Agency-wide NEPA implementing
procedures.
    Section 79.6 states that mitigation grant projects must be in
conformance with ``part 9 of this chapter, Floodplain management and
protection of wetlands, part 10 of this chapter, Environmental
Considerations, Sec.  60.3 of this subchapter, Flood plain management
criteria for flood-prone areas, and other applicable Federal, State,
tribal, and local laws and regulations.'' 44 CFR 79.6(d)(2). FEMA is
simply removing the reference to Part 10. This change reflects that
projects must conform with applicable environmental laws and
regulations, including NEPA requirements, even though those
requirements are no longer set out in Part 10.

R. 44 CFR Part 80 Property Acquisition and Relocation for Open Space

    Section 80.5 describes FEMA's responsibility to ``[c]omply with
applicable Federal statutory, regulatory, and Executive Order
requirements related to environmental and historic preservation
compliance, including reviewing and supplementing, if necessary, the
environmental analyses conducted by the State and subgrantee in
accordance with part 10 of this chapter.'' 44 CFR 80.5(a)(5). FEMA is
replacing the reference to Part 10 with a reference to applicable laws,
regulations, and agency policy, as FEMA will comply with applicable CEQ
regulations and Department and Agency-wide NEPA implementing
procedures.

S. 44 CFR Part 206 Federal Disaster Assistance

    Section 206.110 states that ``[a]ssistance provided under this
subpart must comply with the National Environmental Policy Act (NEPA)
and other environmental laws and Executive Orders, consistent with 44
CFR part 10.'' 44 CFR 206.110(l). Because NEPA compliance procedures
are set out in CEQ regulations, DHS implementing procedures, and
supplemental instructions, FEMA is removing the reference to Part 10
and revising the paragraph to reflect that NEPA compliance procedures
are set out in applicable laws, regulations, and policies.
    Section 206.117, Housing Assistance, states that ``[a]ny site upon
which a FEMA-provided housing unit is placed must comply with
applicable State and local codes and ordinances, as well as 44 CFR part
9, Floodplain Management and Protection of Wetlands, and 44 CFR part
10, Environmental Considerations, and all other applicable
environmental laws and Executive Orders.'' 44 CFR 206.117(b)(1)(ii)(C).
Because NEPA compliance procedures are set out in CEQ regulations, DHS
implementing procedures, and supplemental instructions, FEMA is
removing the reference to Part 10 and revising the paragraph to reflect
that NEPA compliance procedures are set out in applicable laws,
regulations, and policies.
    Section 206.220, Public Assistance Eligibility, states that the
regulations under 44 CFR part 10 apply to public assistance. Because
the requirements formerly in Part 10 are now set out in applicable
regulation, implementing procedures, and supplemental instructions,
FEMA is removing the reference to Part 10 and clarifying that public
assistance must conform to requirements in applicable environmental and
historic preservation laws, regulations, and agency policies.
    Section 206.434 states that in order to be eligible for the Hazard
Mitigation Grant Program, a project must be in comformance with 44 CFR
part 10. Because the requirements formerly in Part 10 are now set out
in applicable regulation, implementing procedures, and supplemental
instructions, FEMA is removing the reference to Part 10 and clarifying
that a project must conform to requirements in applicable environmental
and historic preservation laws, regulations, and agency policies.
    Section 206.436 requires that the hazard mitigation application
include environmental information consistent with 44 CFR part 10. FEMA
is removing the reference to Part 10 and replacing it with a reference
to applicable environmental and historic preservation laws,
regulations, and agency implementing policies.

T. 44 CFR Part 209 Supplemental Property Acquisition and Elevation
Assistance

    Section 209.6 states that in order to be eligible, projects must
conform with 44 CFR part 9, Floodplain Management and Protection of
Wetlands; 44 CFR part 10, Environmental Considerations; and any
applicable environmental and historic preservation laws and
regulations. 44 CFR 209.6(b)(3). Because the requirements formerly in
Part 10 are now set out in applicable regulation, implementing
procedures, and supplemental instructions, FEMA is removing the
reference to Part 10 and clarifying that projects must conform to
requirements in applicable environmental and historic preservation
laws, regulations, and agency policies.

IV. Regulatory Analysis

Administrative Procedure Act

    The Administrative Procedure Act (APA) requires agencies to provide
public notice and seek public comment on substantive regulations. See 5
U.S.C. 553. The APA, however, provides limited exceptions to this
requirement for notice and public comment. See 5 U.S.C. 553(b). FEMA
did not undertake notice and comment for this final rule because this
final rule is a rule of ``agency organization, procedure, or practice''
and is exempt from notice and comment under section 553(b)(A) of the
APA. 5 U.S.C. 553(b)(A). This rule addresses FEMA's internal agency
procedures for carrying out NEPA, and maintains existing practice
within FEMA for completing the NEPA process. FEMA is removing these
internal agency procedures from regulation and replacing them with an
internal Directive and Instruction. Notice and opportunity for public
comment are not required because the internal procedures do not affect
or impose substantive requirements on the public.
    Section 553(d) of the APA also requires agencies to provide a 30-
day delayed effective date for substantive rules. See 5 U.S.C. 553(d).
However, FEMA finds that this final rule may be made effective
immediately because it

has good cause pursuant to section 553(d)(3) of the APA (5 U.S.C.
553(d)). This final rule removes internal agency NEPA procedures from
the Code of Federal Regulations and replaces them with a Directive and
Instruction. These procedures do not affect or impose substantive
requirements on the public, but rather apply to internal agency
procedure. Moreover, the Directive and Instruction maintain existing
practice within FEMA for completing the NEPA process. Therefore, FEMA
finds that this final rule may be made effective immediately upon
publication in the Federal Register.

Executive Order 12866, as Amended, Regulatory Planning and Review;
Executive Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the
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. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has not been reviewed by the Office of Management
and Budget.
    This rule removes FEMA regulations in 44 CFR part 10 which have
been replaced by new Department of Homeland Security procedures. FEMA
will no longer be implementing Environmental and Historic Preservation
requirements through regulation. Instead, it will follow DHS procedures
and supplement them through the issuance of an internal Directive and
Instruction. As such, this rule change will remove unnecessary FEMA
regulations. The policies and procedures in this final rule maintain
the existing practice within FEMA for completing the NEPA process and
thus, no additional costs on the public are expected. FEMA expects this
rule to result in additional opportunity costs to FEMA staff that are
estimated to cost $619,242 over ten years at a 7% discount rate.
    The Directive describes the responsibilities of senior FEMA staff
with regards to Environmental and Historic Preservation (EHP) policies
as well as procedures for all EHP analyses and associated decision
documents. The Instruction, which is more detailed than the Directive,
provides guidance for the implementation of NEPA and other EHP
requirements across FEMA.
    The transition to the Directive and Instruction only makes minimal
changes to the procedures identified in 44 CFR part 10 with regards to
responsibilities. For example, 44 CFR part 10.3(c) defines the
Environmental Officer as the Director of the Office of Environmental
and Historic Preservation (OEHP) or his or her designee while the
Directive establishes the Environmental Officer as a separate position.
By policy, the Environmental Officer has been a separate position
designated by the Director of OEHP. Thus, there is no impact to current
procedures. The Directive also shifts responsibility for reviewing
proposed changes to Categorical Exclusions (CATEXs) from the Office of
Chief Counsel to the Environmental Officer with support from the chief
counsel. In practice, the review of CATEXs has always had significant
input from the Environmental Officer, so this rule only shifts the
final sign-off from the Chief Counsel to the Environmental Officer
while not dramatically impacting the workload of either office.
    Other associated changes involve shifting responsibilities to DHS.
For instance, the Department is now responsible for adding to,
revising, or deleting items on the DHS list of CATEXs. In addition, the
DHS Director of Sustainability and Environmental Programs is now the
liaison with the CEQ, EPA, OMB, and other Federal agencies which was
previously the responsibility of the FEMA Environmental Officer.
    The Directive and Instruction provide instruction on the
implementation of the new internal requirements to FEMA programs.
Specifically, FEMA programs are now required to develop EHP
implementation plans and update them every 3 years. FEMA estimates this
will entail an average of 200 hours per program including staff work
and management review. To estimate cost, FEMA uses the equivalent of a
GS-13 Step 5 in the Washington Metro Area. Wage rates have been
multiplied by 1.46 to account for benefits, and other associated
employment costs to estimate the fully-loaded wage rate.\42\ The fully
loaded wage of a GS-13 Step 5 is $72.01 ($49.32 x 1.46 = $72.01).\43\
This equates to an initial cost of $14,401 (200 hours x $72.01 =
$14,401) per program. FEMA expects that development of EHP
implementation plans will impact the 3 major grant programs and have a
limited effect on FEMA facilities staff which FEMA equates to 0.5 of a
program for the purposes of analysis. This results in an estimated
total of $50,405 ($14,401 x 3.5 programs = $50,405) across FEMA. FEMA
anticipates these requirements will be completed with existing
resources and do not require any new Federal or contractor employees
and thus considered as opportunity costs. FEMA estimates the 3 year
updates will require an average of 100 hours to review. This results in
an estimated review cost of $25,203 ($72.01 x 00 hours x 3.5 programs =
$25,203).
---------------------------------------------------------------------------

    \42\ Bureau of Labor Statistics, Employer Costs for Employee
Compensation, Table 1. ``Employer costs per hour worked for employee
compensation and costs as a percent of total compensation: Civilian
workers, by major occupational and industry group, December 2015.''
Available at http://www.bls.gov/news.release/archives/ecec_03102016.htm. Accessed July 12, 2016. Calculated by dividing
total compensation for all workers of $33.58 by wages and salaries
for all workers of $23.06 per hour (yields a benefits multiplier of
approximately 1.46xwages).
    \43\ Office of Personnel Management 2015 General Schedule hourly
wage for the locality pay area of Washington--Baltimore-Northern
Virginia, DC-MD-VA-WV-PA retrieved from https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2015/DCB_h.pdf.
---------------------------------------------------------------------------

    FEMA programs with EHP responsibilities are also required to
undergo an EHP concurrence process that is expected to entail between
200 and 500 hours per program annually. To estimate cost, FEMA uses the
equivalent of a GS-12 Step 5 in the Washington Metro Area at a fully
loaded wage of $60.56 ($41.48 x 1.46 = $60.56). The resulting
additional unit cost across the major programs ranges between $12,112
($60.56 x 200hrs = $12,112) and $30,280 ($60.56 x 500 hours = $30,280),
with a primary estimate of $21,196 ($60.56 x 350 hours = $21,196)
annually. The total annual EHP concurrence process costs ranges between
$42,392 ($12,112 x 3.5 = $42,392) and $105,981 ($30,280 x 3.5 =
$105,981) with a primary estimate of $74,187 ($21,196 x 3.5 = $74,187).
FEMA intends to use its existing staff and funding to carry out these
functions and thus such costs are again only considered as opportunity
costs.
    Based on the above cost estimates, the estimated first year costs
of the new procedures range from $92,797 ($50,405 + $42,392) to
$156,386 ($50,405 + $105,981)with a primary estimate of $124,592
($50,405 + $74,187). The estimated annual costs after the first year
range from $42,392 to $105,981 with a primary estimate of $74,187 per
year except in years with EHP Implementation Plan Updates. These
updates are anticipated to occur in years three, six, and nine. The
estimated total undiscounted costs over 10 years ranges from $549,934
to $1,185,824 with a

primary estimate of $867,884. Discounted at 3% over 10 years leads to
an estimated annualized cost ranging from $55,572 to $119,161 with a
primary estimate of $87,367. At a 7% discount rate, the annualized
costs range from $56,371 to $119,960 with a primary estimate of
$88,166. See Table 1 for additional details.

                           Table 1--10-Year Costs of Directive and Instruction Changes
----------------------------------------------------------------------------------------------------------------
                              Year                                      Low           Primary          High
----------------------------------------------------------------------------------------------------------------
1...............................................................         $92,797        $124,592        $156,386
2...............................................................          42,392          74,187         105,981
3...............................................................          67,595          99,390         131,184
4...............................................................          42,392          74,187         105,981
5...............................................................          42,392          74,187         105,981
6...............................................................          67,595          99,390         131,184
7...............................................................          42,392          74,187         105,981
8...............................................................          42,392          74,187         105,981
9...............................................................          67,595          99,390         131,184
10..............................................................          42,392          74,187         105,981
----------------------------------------------------------------------------------------------------------------
10-Year Undiscounted Total......................................         549,934         867,884       1,185,824
10-Year Discounted at 3%........................................         474,037         745,254       1,016,464
Annualized at 3%................................................          55,572          87,367         119,161
10-Year Discounted at 7%........................................         395,927         619,242         842,549
Annualized at 7%................................................          56,371          88,166         119,960
----------------------------------------------------------------------------------------------------------------

    As the rule only applies to DHS and FEMA internal procedures and
does not impact the requirements of entities going through NEPA and EHP
procedures, FEMA does not anticipate any impacts to entities outside of
the Department of Homeland Security.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended, 5 U.S.C.
601-612, agencies must consider the impact of their rulemakings on
``small entities'' (small businesses, small organizations and local
governments) when issuing a notice of proposed rulemaking. As FEMA is