[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Rules and Regulations]
[Pages 56514-56534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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

[[Page 56515]]

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; 202-212-2282, or 
[email protected].

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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[[Page 56516]]

    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

[[Page 56517]]

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

[[Page 56518]]

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

[[Page 56519]]

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

[[Page 56520]]

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

[[Page 56521]]

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

[[Page 56522]]

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.
---------------------------------------------------------------------------

    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

[[Page 56523]]

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

[[Page 56524]]

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

[[Page 56525]]

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

[[Page 56526]]

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.

[[Page 56527]]

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.
---------------------------------------------------------------------------

    \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

[[Page 56528]]

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.

[[Page 56529]]

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

[[Page 56530]]

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

[[Page 56531]]

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 
not issuing a proposed rule for this action, the RFA does not apply.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et 
seq., requires each Federal agency, to the extent permitted by law, to 
prepare a written assessment of the effects of any Federal mandate in a 
proposed or final agency rule that may result in the expenditure by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year (approximately $157 million in 2015 
dollars). The final rule does not result in the expenditure of State, 
local, and Tribal governments of greater than $157 million in any given 
year. Therefore, this rule is not an unfunded Federal mandate under 
that Act.

National Environmental Policy Act of 1969 (NEPA)

    Under the National Environmental Policy Act of 1969 (NEPA), as 
amended, 42 U.S.C. 4321, 4331-4335, 4344, 4365, an agency must prepare 
an EA and EIS for any rulemaking that significantly affects the quality 
of the human environment. FEMA has determined that this rulemaking does 
not significantly affect the quality of the human environment and 
consequently has not prepared an EA or EIS.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 
U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless the 
agency obtains approval from OMB for the collection and the collection 
displays a valid OMB control number. See 44 U.S.C. 3506, 3507. There 
are no information collections required under 44 CFR part 10. There are 
specific FEMA programs that do collect information regarding 
environmental considerations for certain projects; \44\ however, those 
collections are sponsored by separate program information collections 
and not under Part 10. Those collections are not affected by the 
removal of Part 10.
---------------------------------------------------------------------------

    \44\ E.g., OMB No. 1660-0017 for the Public Assistance Program; 
OMB No. 1660-0072 for the Hazard Mitigation Grant Program; OMB No. 
1660-0022 for the Community Rating System (CRS) program.
---------------------------------------------------------------------------

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency 
regulations that have Tribal implications, that is, regulations that 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. Under this Executive Order, to the extent 
practicable and permitted by law, no agency shall promulgate any 
regulation that has Tribal implications, that imposes substantial 
direct compliance costs on Indian Tribal governments, and that is not 
required by statute, unless funds necessary to pay the direct costs 
incurred by the Indian Tribal government or the Tribe in complying with 
the regulation are provided by the Federal Government, or the agency 
consults with Tribal officials.
    This rule does not have Tribal implications. It governs internal 
agency procedure and does not place any requirements on Tribes.

Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism,'' 64 FR 43255, August 10, 
1999, sets forth principles and criteria that agencies must adhere to 
in formulating and implementing policies that have federalism 
implications, that is, regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Federal 
agencies must closely examine the statutory authority supporting any 
action that would limit the policymaking discretion of the States, and 
to the extent practicable, must consult with State and local officials 
before implementing any such action.

[[Page 56532]]

    FEMA has reviewed this rule under Executive Order 13132 and has 
determined that this rule does not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and therefore does not have federalism 
implications as defined by the Executive Order.

Executive Order 11988, Floodplain Management

    Pursuant to Executive Order 11988, each agency is required to 
provide leadership and take action to reduce the risk of flood loss, to 
minimize the impact of floods on human safety, health and welfare, and 
to restore and preserve the natural and beneficial values served by 
floodplains in carrying out its responsibilities for: (1) Acquiring, 
managing, and disposing of Federal lands and facilities; (2) providing 
Federally undertaken, financed, or assisted construction and 
improvements; and (3) conducting Federal activities and programs 
affecting land use, including but not limited to water and related land 
resources planning, regulating, and licensing activities. In carrying 
out these responsibilities, each agency must evaluate the potential 
effects of any actions it may take in a floodplain; to ensure that its 
planning programs and budget requests reflect consideration of flood 
hazards and floodplain management; and to prescribe procedures to 
implement the policies and requirements of the Executive Order.
    Before promulgating any regulation, an agency must determine 
whether the proposed regulations will affect a floodplain(s), and if 
so, the agency must consider alternatives to avoid adverse effects and 
incompatible development in the floodplain(s). If the head of the 
agency finds that the only practicable alternative consistent with the 
law and with the policy set forth in Executive Order 11988 is to 
promulgate a regulation that affects a floodplain(s), the agency must, 
prior to promulgating the regulation, design or modify the regulation 
in order to minimize potential harm to or within the floodplain, 
consistent with the agency's floodplain management regulations and 
prepare and circulate a notice containing an explanation of why the 
action is proposed to be located in the floodplain. The changes in this 
final rule will not have an effect on floodplain management. This rule 
addresses FEMA's internal agency procedures for carrying out NEPA, and 
maintains existing practice within FEMA for completing the NEPA 
process. When FEMA undertakes specific actions that may have effects on 
floodplain management, FEMA follows the procedures set forth in 44 CFR 
part 9 to assure compliance with this Executive Order. This serves as 
the notice that is required by the Executive Order.

Executive Order 11990, Protection of Wetlands

    Pursuant to Executive Order 11990, each agency must provide 
leadership and take action to minimize the destruction, loss or 
degradation of wetlands, and to preserve and enhance the natural and 
beneficial values of wetlands in carrying out the agency's 
responsibilities for: (1) Acquiring, managing, and disposing of Federal 
lands and facilities; and (2) providing Federally undertaken, financed, 
or assisted construction and improvements; and (3) conducting Federal 
activities and programs affecting land use, including but not limited 
to water and related land resources planning, regulating, and licensing 
activities. Each agency, to the extent permitted by law, must avoid 
undertaking or providing assistance for new construction located in 
wetlands unless the head of the agency finds: (1) That there is no 
practicable alternative to such construction, and (2) that the proposed 
action includes all practicable measures to minimize harm to wetlands 
which may result from such use. In making this finding the head of the 
agency may take into account economic, environmental and other 
pertinent factors.
    In carrying out the activities described in the Executive Order, 
each agency must consider factors relevant to a proposal's effect on 
the survival and quality of the wetlands. Among these factors are: 
Public health, safety, and welfare, including water supply, quality, 
recharge and discharge; pollution; flood and storm hazards; and 
sediment and erosion; maintenance of natural systems, including 
conservation and long term productivity of existing flora and fauna, 
species and habitat diversity and stability, hydrologic utility, fish, 
wildlife, timber, and food and fiber resources; and other uses of 
wetlands in the public interest, including recreational, scientific, 
and cultural uses.
    The changes in this final rule will not have an effect on land use 
or wetlands. This rule addresses FEMA's internal agency procedures for 
carrying out NEPA, and maintains existing practice within FEMA for 
completing the NEPA process. When FEMA undertakes specific actions that 
may have such effects, FEMA follows the procedures set forth in 44 CFR 
part 9 to assure compliance with this Executive Order.

Congressional Review of Agency Rulemaking

    Under the Congressional Review of Agency Rulemaking Act (CRA), 5 
U.S.C. 801-808, before a rule can take effect, the Federal agency 
promulgating the rule must submit to Congress and to the Government 
Accountability Office (GAO) a copy of the rule, a concise general 
statement relating to the rule, including whether it is a major rule, 
the proposed effective date of the rule, a copy of any cost-benefit 
analysis, descriptions of the agency's actions under the Regulatory 
Flexibility Act and the Unfunded Mandates Reform Act, and any other 
information or statements required by relevant executive orders.
    FEMA has sent this rule to the Congress and to GAO pursuant to the 
CRA. The rule is not a ``major rule'' within the meaning of the CRA. It 
will not have an annual effect on the economy of $100,000,000 or more, 
it will not result in a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions, and it will not have significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.

List of Subjects

44 CFR Part 10

    Environmental Impact Statements.

44 CFR Part 60

    Flood insurance, Flood plains, Reporting and recordkeeping 
requirements.

44 CFR Parts 78 and 79

    Flood insurance, Grant programs.

44 CFR Part 80

    Disaster assistance, Grant programs.

44 CFR Part 206

    Administrative practice and procedure, Coastal zone, Community 
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance, 
Intergovernmental relations, Loan programs-housing and community 
development, Natural resources, Penalties, Reporting and recordkeeping 
requirements.

[[Page 56533]]

44 CFR Part 209

    Administrative practice and procedure, Disaster assistance, Grant 
programs, Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, and under the authority 
of the Homeland Security Act of 2002, 6 U.S.C. 101 et seq., Department 
of Homeland Security Delegation 9001.1, and the National Environmental 
Policy Act, 42 U.S.C. 4321, 4331-4335, 4344, 4365, the Federal 
Emergency Management Agency amends 44 CFR Chapter I, as follows:

PART 10--[REMOVED AND RESERVED]

0
1. Remove and reserve part 10, consisting of Sec. Sec.  10.1 through 
10.14.

PART 60--CRITERIA FOR LAND MANAGEMENT AND USE

0
2. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

0
3. In Sec.  60.6, revise the second sentence of paragraph (b)(2) to 
read as follows:


Sec.  60.6  Variances and exceptions.

* * * * *
    (b) * * *
    (2) * * * The decision whether an Environmental Impact Statement or 
other environmental document will be prepared, will be made in 
accordance with applicable environmental and historic preservation 
laws, regulations, Executive Orders, and agency policy. * * *
* * * * *

PART 78--FLOOD MITIGATION ASSISTANCE

0
4. The authority citation for part 78 continues to read as follows:

    Authority:  6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C. 
4104c, 4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 
68 FR 10619, 3 CFR, 2003 Comp., p. 166.

0
5. In Sec.  78.11, revise paragraph (b) to read as follows:


Sec.  78.11   Minimum project eligibility criteria.

* * * * *
    (b) Be in conformance with 44 CFR part 9, Floodplain Management and 
Protection of Wetlands; Executive Order 12699, Seismic Safety of 
Federal and Federally Assisted or Regulated New Building Construction; 
and any applicable environmental laws and regulations.
* * * * *

PART 79--FLOOD MITIGATION GRANTS

0
6. The authority citation for part 79 continues to read as follows:

    Authority: 6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C. 
4104c, 4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 
68 FR 10619, 3 CFR, 2003 Comp., p. 166.

0
7. In Sec.  79.3, revise paragraph (a)(6) to read as follows:


Sec.  79.3   Responsibilities.

    (a) * * *
    (6) Comply 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 applicable laws, regulations, and agency 
policy;
* * * * *

0
8. In Sec.  79.6, revise paragraph (d)(2) to read as follows:


Sec.  79.6   Eligibility.

* * * * *
    (d) * * *
    (2) Be in conformance with part 9 of this chapter, Floodplain 
management and protection of wetlands, 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;
* * * * *

PART 80--PROPERTY ACQUISITION AND RELOCATION FOR OPEN SPACE

0
9. The authority citation for part 80 continues to read as follows:

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 through 5207; the National Flood 
Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.; 
Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., 
p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 
FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 
166.


0
10. In Sec.  80.5, revise paragraph (a)(5) to read as follows:


Sec.  80.5   Roles and responsibilities.

* * * * *
    (a) * * *
    (5) Complying with applicable Federal statutory, regulatory, and 
Executive Order requirements related to environmental and historic 
preservation compliance, including reviewing and supplementing, if 
necessary, environmental analyses conducted by the State and subgrantee 
in accordance with applicable laws, regulations, and agency policy;
* * * * *

PART 206--FEDERAL DISASTER ASSISTANCE

0
11. The authority citation for part 206 continues to read as follows:

    Authority:  Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act 
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security 
Delegation 9001.1; sec. 1105, Pub. L. 113-2, 127 Stat. 43 (42 U.S.C. 
5189a note).


0
12. In Sec.  206.110, revise paragraph (l) to read as follows:


Sec.  206.110   Federal assistance to individuals and households.

* * * * *
    (l) Environmental requirements. Assistance provided under this 
subpart must comply with the National Environmental Policy Act (NEPA) 
and other environmental laws, regulations, Executive Orders, and 
applicable agency policy.
* * * * *
0
13. In Sec.  206.117, revise paragraph (b)(1)(ii)(C) to read as 
follows:


Sec.  206.117   Housing assistance.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (C) Any 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 
all other applicable environmental and historic preservation laws, 
regulations, Executive Orders, and agency policy.
* * * * *

0
14. Revise Sec.  206.220 to read as follows:


Sec.  206.220   General.

    This subpart provides policies and procedures for determinations of 
eligibility of applicants for public assistance, eligibility of work, 
and eligibility of costs for assistance under sections 402, 403, 406, 
407, 418, 419,

[[Page 56534]]

421(d), 502, and 503 of the Stafford Act. Assistance under this subpart 
must also conform to requirements of 44 CFR part 201, Mitigation 
Planning, 44 CFR part 206, subparts G--Public Assistance Project 
Administration, I--Public Assistance Insurance Requirements, J--Coastal 
Barrier Resources Act, and M--Minimum Standards, 44 CFR part 9--
Floodplain Management, and other applicable environmental and historic 
preservation laws, regulations, Executive Orders, and agency policy.

0
15. In Sec.  206.434, revise paragraph (c)(3) to read as follows:


Sec.  206.434   Eligibility.

* * * * *
    (c) * * *
    (3) Be in conformance with 44 CFR part 9, Floodplain Management and 
Protection of Wetlands, and other applicable environmental and historic 
preservation laws, regulations, Executive Orders, and agency policy;
* * * * *

0
16. In Sec.  206.436, revise paragraph (c)(10) to read as follows:


Sec.  206.436   Application procedures.

* * * * *
    (c) * * *
    (10) Environmental information consistent with 44 CFR part 9, 
Floodplain Management and Protection of Wetlands, and other applicable 
environmental and historic preservation laws, regulations, Executive 
Orders, and agency policy.
* * * * *

PART 209--SUPPLEMENTAL PROPERTY ACQUISITION AND ELEVATION 
ASSISTANCE

0
17. The authority citation for part 209 continues to read as follows:

    Authority: Pub. L. 106-113, Div. B, sec. 1000(a)(5) (enacting 
H.R. 3425 by cross-reference), 113 Stat. 1501, 1536; Pub. L. 106-
246, 114 Stat. 511, 568; Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, 42 U.S.C. 5121, Reorganization Plan No. 3 
of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 
19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412.


0
18. In Sec.  209.6, revise paragraph (b)(3) to read as follows:


Sec.  209.6   Project eligibility.

* * * * *
    (b) * * *
    (3) Conform with 44 CFR part 9, Floodplain Management and 
Protection of Wetlands, and other applicable environmental and historic 
preservation laws, regulations, Executive Orders, and agency policy.
* * * * *

    Dated: August 2, 2016.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2016-19536 Filed 8-19-16; 8:45 am]
 BILLING CODE 9111-A6-P