Environmental Planning Program, 16790-16820 [06-3078]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 71, Number 64 (Tuesday, April 4, 2006)]
[Notices]
[Pages 16790-16820]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3078]



[[Page 16790]]

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DEPARTMENT OF HOMELAND SECURITY


Environmental Planning Program

AGENCY: Department of Homeland Security.

ACTION: Notice of final directive.

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SUMMARY: The purpose of this Notice is to inform the public that the 
Department of Homeland Security (DHS or the Department) is issuing its 
final policy and procedures for implementing the National Environmental 
Policy Act of 1969 (NEPA) and related executive orders and 
requirements. This Notice also responds to the comments received on the 
draft Management Directive (draft Directive), published on June 14, 
2004.

DATES: This Directive will be effective on April 19, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. David Reese, Office of Safety and 
Environment, Department of Homeland Security, 202.692.4224.

SUPPLEMENTARY INFORMATION:

Table of Abbreviations

CATEX--Categorical Exclusion
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
DHS--Department of Homeland Security
Department--Department of Homeland Security
EA--Environmental Assessment
E.O.--Executive Order
FEMA--Federal Emergency Management Agency
FLETC--Federal Law Enforcement Training Centers
FONSI--Finding of No Significant Impact
FSE--Full Scale Exercise
FR--Federal Register
NEPA--National Environmental Policy Act
ODP--Office of Domestic Preparedness
ROD--Record of Decision
U.S.C.--United States Code
USCG--United States Coast Guard

Table of Contents

Background
Scope and Applicability
General Comments and Responses
Section by Section Comments, Responses, and Other Changes
Specific Comments on Categorical Exclusions and Responses
Management Directive 5100.1, Environmental Planning Program
Management Directive 5100.1, Appendix A, Timely and Effective 
Environmental Planning in the Department of Homeland Security
Planning in the Department of Homeland Security
Management Directive 5100.1, Glossary

Background

    DHS has the mission to lead the unified national effort to secure 
the United States of America. It has the responsibility to prevent and 
deter terrorist attacks and protect against and respond to threats and 
hazards to the Nation. As a part of this mission, the Department 
ensures safe and secure borders, facilitates lawful immigrants and 
visitors, and promotes the free flow of commerce among nations.
    This Directive establishes policy and procedures to ensure the 
integration of environmental considerations into the unique mission of 
the Department. It outlines roles and responsibilities for compliance 
with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et 
seq., and other laws and requirements for stewardship of the 
environment. This Directive also establishes a framework for the 
detailed, balanced, and systematic consideration of environmental 
stewardship in the planning and execution of DHS activities.
    NEPA is the basic charter and foundation for stewardship of 
environmental resources by the agencies of the Federal government 
within the United States. It establishes policy, sets goals, and 
provides a tool for carrying out national environmental policy. NEPA 
requires agencies to use all practical means within their authority to 
create and maintain conditions under which people and nature can exist 
in productive harmony and fulfill the social, economic, and other needs 
of present and future generations of Americans. 42 U.S.C. 4331.
    This Directive includes processes for preparing Environmental 
Assessments (EA), Findings of No Significant Impact (FONSI), and 
Environmental Impact Statements (EIS). It also includes procedures for 
DHS to establish new or revised Categorical Exclusions (CATEX). DHS 
will use this Directive in conjunction with NEPA, the Council on 
Environmental Quality (CEQ) regulations at 40 CFR parts 1500-1508, and 
other pertinent environmental laws, regulations, and Executive Orders 
(E.O.).
    The Department published a draft Directive and a request for 
comments in the Federal Register on June 14, 2004. 69 FR 33043; see 
also 69 FR 42760 (Jul. 16, 2004) reopening comment period. The draft 
Directive proposed DHS policy for meeting the requirements under NEPA, 
including a proposed list of categories of DHS actions excluded from 
further consideration under NEPA, known as categorical exclusions.
    More than 7,500 letters and e-mails were received during the 
comment period. The vast majority of those comments consisted of 
identical letters and e-mails, where only the name and address 
differed. The Department received fewer than 100 unique comments. The 
Department has posted all unique comments and an example of each 
identical form comment on the DHS public web site, listed below. These 
comments are categorized and discussed below. This final Directive 
incorporates clarifications and limitations added in consideration of 
the public comments.
    A copy of this publication, the draft Directive, all unique 
comments received during the comment period, examples of form comments, 
and a summary of the administrative record are available at https://
www.dhs.gov/dhspublic/display?theme=13&content=5278.

Scope and Applicability

    This Directive applies to all of DHS, including its components. 
Components may supplement this Directive, provided that any supplements 
are consistent with the Directive. This Directive shall prevail in case 
of any inconsistencies between this directive and supplementary 
procedures. Currently, FEMA has NEPA regulations, 44 CFR Part 10, and 
the U.S. Coast Guard has a Commandant's Instruction Manual on NEPA, 
16475.1 series. These components will amend their procedures to conform 
to this Directive.

General Comments and Responses

    The draft Directive contained proposed policy and procedures for 
DHS to comply with NEPA and ensure the integration of environmental 
considerations into mission planning and project decision making. It 
also proposed the means for DHS to follow the letter and spirit of NEPA 
and comply fully with CEQ regulations. Both the draft and final 
Directive encompass requirements in addition to NEPA and establish the 
DHS Environmental Planning Program. The final Directive contains a 
detailed set of policy and procedural requirements to implement NEPA 
and the environmental planning function in a reliable, timely, and 
cost-effective manner.
    Following is a discussion of the comments. Comments of a general 
nature are addressed first, followed by comments on specific sections 
of the Directive. Since there were many comments on specific proposed 
CATEXs, these comments and responses have been placed into a separate 
grouping and are addressed one-by-one in the last section of comments 
and responses.
    1. Categorical Exclusions: Too Many and Too Broad. About 70 
commenters noted that the Department's draft

[[Page 16791]]

Directive had an exceptionally large number of components responsible 
for a vast array of activities and operations under its purview. It was 
generally argued that many of these activities have a clear potential 
for significant adverse environmental impacts. These comments indicated 
a concern that the draft ignored what some commenters defined as an 
accepted practice that the use of Categorical Exclusions be limited 
primarily to routine administrative actions. Some comments stated that 
the draft attempted to create a number of overly broad and vague 
Categorical Exclusions for activities with the potential for 
significant adverse environmental effects. Other comments noted that, 
while federal agencies are accorded a degree of deference in creating 
their Categorical Exclusions, they must still provide a sound and 
factually supported basis for finding that certain agency actions will 
not individually or cumulatively have a significant impact on the 
environment. Some commenters also generally argued that some proposed 
Categorical Exclusions go far beyond what is authorized by CEQ 
regulations and relevant case law.
    In response to these comments, DHS recognizes that the creation of 
a Cabinet-level Department from numerous agencies and elements of other 
agencies is certainly an historic and complex event. In addition, DHS 
was mandated by the Homeland Security Act to functionally integrate its 
activities to establish consistent business processes throughout the 
Department. Numerous functional areas such as financial management, 
procurement, human resources management, and asset management, either 
have or are actively completing the establishment of common rules and 
operating procedures throughout DHS. From an environmental planning 
perspective, this meant establishing a common set of policy, guidance, 
and implementing procedures for use by all DHS components.
    To respond to this challenge, DHS used a very lengthy and complex 
series of deliberations to create and support the CATEXs included in 
this NEPA Directive. The Council on Environmental Quality's Regulations 
for Implementing the Procedural Provisions of the National 
Environmental Policy Act contemplates that CATEXs will serve as a tool 
for agencies to conserve time and effort by defining categories of 
actions that do not individually or cumulatively have a significant 
effect on the human environment and are therefore exempt from the 
requirement to prepare further analysis in an environmental assessment 
or an environmental impact statement. 40 CFR 1500.4(p). This Directive 
and the NEPA directives of most agencies include a list of CATEXs that 
extend beyond routine administrative actions. The Department empanelled 
a group of federal employees from its components with sufficient 
expertise and experience to identify such categories of actions most 
relevant to DHS, hereinafter referred to as the Panel. That Panel 
critically analyzed the actions within the categories that they 
identified to ensure that only actions with no potential for individual 
or cumulative significant impact would be included in the list of 
CATEXs. The Panel also took pains to ensure that the actions were 
sufficiently limited to actions for which the Department maintained a 
demonstrated history of successful performance with no significant 
effect on the human environment. The CATEXs were developed on the basis 
of an administrative record from the components that comprise the 
Department and the experiences of the Panel members.
    2. Alleged Conflict between NEPA Scoping Requirements and 
Consultation Requirements under Section 106 of the National Historic 
Preservation Act. One set of comments stated that the scoping 
provisions that require involvement of other federal agencies, non-
federal interests, and the general public in defining the scope of 
potential environmental impacts from a proposed activity do not 
adequately fulfill requirements to consult with federally-recognized 
Indian Tribes and Native Hawaiian organizations under Section 106 of 
the National Historic Preservation Act when the proposal may impact a 
historic property and could become a source of conflict.
    DHS disagrees. These comments refer to an issue that was not 
referenced, expanded, or limited by the draft Directive. Neither the 
CEQ regulations that implement NEPA nor the draft Directive prescribe a 
standard scoping process. Furthermore, the Advisory Council on Historic 
Preservation's regulations for implementing Section 106 of the National 
Historic Preservation Act, at 36 CFR part 800, provide for coordinating 
Section 106 reviews with the NEPA process or using the NEPA process to 
fulfill the requirements of Section 106. More specifically, 36 CFR 
800.2(c)(2), requires consultation with federally recognized Indian 
Tribes and Native Hawaiian organizations in fulfilling Section 106 
review requirements.
    The Department's Directive defines the need to coordinate with 
federally-recognized Indian Tribes and Native Hawaiian organizations 
during the NEPA process in Section 6. That policy is further reinforced 
in Sections 1 and 2 of Appendix A, which states that the Department's 
policy is to seek out and coordinate with other federal departments and 
agencies, tribal, state, and local governments, non-governmental 
organizations, and the general public early in the environmental 
planning process. Furthermore, Executive Order 13175, ``Consultation 
and Coordination with Indian Tribal Governments'' dated November 9, 
2000, directs all federal departments to, among other things, 
``strengthen the United States government-to-government relationships 
with Indian tribes and establish regular and meaningful consultation 
and collaboration with tribal officials in the development of Federal 
policies that have tribal implications * * *'' Each component in DHS 
provides the framework by which they consult and coordinate with tribes 
concerning their specific program areas, including any environmental 
planning activities that may involve tribes.
    3. General Administrative and Editorial Changes. Names and titles 
of offices and positions have been changed to reflect the current 
organizational structure, program responsibilities, and nomenclature 
within DHS. The abbreviation used for the term ``Categorical 
Exclusion'' has been changed from ``CE,'' the term used in the draft, 
to ``CATEX'' to avoid confusion with other commonly abbreviated terms 
used in DHS. Other changes have been made in coordination with CEQ to 
clarify language to ensure that this Directive would conform to CEQ 
regulations. Redundancies have been eliminated. Grammatical changes, 
structural changes, and clarifications have been made that are not 
intended to change any of the draft's meaning or intent.

Section By Section Comments, Responses, and Other Changes

    1. Management Directive, Section 6.F. There were no comments on 
this specific section. However, language in this section has been 
changed to clarify that no actions will be taken that limit 
alternatives considered for any proposed action for which an EA or EIS 
process is being conducted. These changes would not change the 
obligation for DHS to ensure that the Record of Decision (ROD) and the 
FONSI are public documents and will reflect the final decision.
    2. Appendix A, Section 2.6., Public Involvement. There were no 
comments

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on this section; however, the opening paragraph was modified to more 
clearly express DHS policy on public involvement in environmental 
planning.
    3. Appendix A, Section 2.6.A, Public Involvement. There were no 
comments on this section; however, consideration of some comments on 
Appendix A, Section 4.0 resulted in changes here. The extent of public 
comment and involvement in the EA and FONSI process is defined in 40 
CFR 1501.4(b) which states, ``The agency shall involve environmental 
agencies, applicants, and the public, to the extent practicable, in 
preparing assessments required by section 1508.9(a)(1)'' (where the 
referenced section refers to environmental assessments). Neither NEPA 
nor CEQ regulations prescribe a set period of public comment required 
in the EA and FONSI process--apart from the FONSI publication required 
in the special situations described in 40 CFR 1501.4(e)(2)--leaving it 
up to the agencies themselves to define the degree of public 
involvement deemed practicable under the circumstances. Appendix A, 
Section 2.6.A has been revised, in consultation with CEQ, to clarify 
that public involvement is required in the environmental impact 
evaluation process that would be documented in an environmental 
assessment under NEPA. Other changes have been made to clarify the 
relationship of this section to other sections in the Directive.
    4. Appendix A, Section 3.2. paragraph B. There were no comments on 
this section; however, several commenters expressed a general concern 
over the potential for CATEXs to be applied to smaller repetitive 
actions in a manner that could avoid a more in-depth review under NEPA 
of the potential for significant cumulative environmental impacts. The 
wording of this section has been modified to more clearly state that 
the CATEXs are not intended to be used in this repetitive manner.
    5. Appendix A, Section 3.2. paragraph C. Commenters objected to the 
treatment of ``extraordinary circumstances'' in connection with 
Categorical Exclusions. Categorical Exclusions are categories of 
actions that can be shown to have no potential for significant impact 
on the human environment under normal circumstances and would require 
no further analysis under NEPA. However, in recognition of the variety 
of situations where DHS may take action, DHS had proposed a series of 
extraordinary circumstances where an otherwise categorically excludable 
action may have potential for significant adverse impact to the human 
environment and would require further analysis under NEPA. Commenters 
claimed that the draft Directive erroneously used a significance test 
when legal precedent has established that a CATEX may not be used if 
there is the potential for ``any adverse effect.''
    DHS disagrees. Upon further review of the language in this 
Directive, including consultation with the Council on Environmental 
Quality, DHS believes that the manner in which it will apply 
``extraordinary circumstances'' in this Directive is in conformance 
with appropriate precedent. CEQ regulations specify that a CATEX may be 
used if there is no significant effect on the human environment, with 
exceptions to provide for those situations when there are 
``extraordinary circumstances.'' 40 CFR 1508.4. Section 3.2 of the 
Directive clearly defines that there are to be three ``tests'' by which 
the application of any CATEX to a particular action are viewed on a 
case-by-case basis. Sub-section (C) within section 3.2 defines one of 
those tests as that of ensuring that no ``extraordinary circumstances'' 
exist. That particular test requires that, in a matter that might 
otherwise be subject to a particular CATEX, ``* * * [n]o extraordinary 
circumstances with potentially significant impacts relating to the 
proposed action exist * * *'' Therefore, if potentially significant 
impacts related to the proposed action exist, the CATEX may not be 
applied. The consideration of this and the other ``tests'' contemplated 
by Section 3.2 ensure that, where ``* * * the proposed action does not 
meet these conditions or a statute does not exempt it or an emergency 
provision does not apply, an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS) must be prepared before the action 
may proceed.''
    The concern addressed by the comments in this area suggests that 
the language in the Directive that states, ``* * * [s]pecific actions 
that might otherwise be categorically excluded, but are associated with 
one or more extraordinary circumstances, should be carefully evaluated 
to determine whether a CATEX is appropriate * * *'' would allow the 
application of a CATEX to a particular action with foreseeable 
significant impact on the environment even where not exempted by a 
statute or emergency provision. The wording of this section has been 
revised to ensure that DHS will evaluate whether extraordinary 
circumstances may exist and have a record of the consideration of those 
extraordinary circumstances. Likewise, the language of Section 3.3.B 
has been modified to clarify this intent.
    Subparagraph (4) in this section has been revised from a lengthy 
list of possible natural resources and other geographic designations to 
simply require that procedures for applying categorical exclusions take 
into account the potential to effect an environmentally sensitive area. 
The effect of this change is to lengthen the list of concerns that must 
be considered under this subparagraph. Consideration of the 
extraordinary circumstances contained in Subparagraph (4) was 
previously limited to only those subjects listed. The term 
``environmentally sensitive area'' has been defined in the Glossary to 
be more comprehensive in its inclusion of various types of natural 
resources and geographic areas of special interest in an environmental 
impact evaluation process. The effect of this change is to ensure that 
a broader range of subjects will be addressed when Subparagraph (4) is 
used in consideration of extraordinary circumstances.
    A new subparagraph (11) has been added in consideration of public 
comments and to conform to CEQ regulations to ensure that CATEXs are 
not used in situations where a proposed DHS action is related to other 
actions with individually insignificant, but cumulatively significant, 
impacts.
    6. Appendix A, Section 3.3.B, Record of Environmental 
Consideration. There were no specific comments on this section. This 
section has been revised to clarify the purpose and use of a Record of 
Environmental Consideration and to conform to the changes in Appendix 
A, Section 3.2.C, Extraordinary Circumstances.
    7. Appendix A, Section 4.0, Environmental Assessments. Commenters 
urged DHS to adopt a policy that would favor seeking public comment on 
both Environmental Assessments and Environmental Impact Statements, 
especially where issues are likely to be controversial.
    Consideration of this recommendation resulted in several changes to 
Appendix A, section 2.6.A, as described earlier. Appendix A, section 
4.0, has also been revised to more clearly reflect a policy of 
involving the public in EAs and to more clearly provide direction on 
the appropriate public involvement process. A new section 4.1 has been 
added to clearly describe the purpose of an environmental assessment 
and the former section 4.1 was renumbered to section 4.2, with some 
edits and clarifying language. The text that provided direction on 
alternatives, the internal review process within DHS, the FONSI, and 
the public involvement requirements has been moved to a new

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section 4.3, Considerations in Preparation of an EA or a Programmatic 
EA.
    8. Appendix A, Section 4.3., Considerations in Preparation of an EA 
or a Programmatic EA. This is a new section of the Directive. 
Consideration of comments urging DHS to adopt a policy that would favor 
seeking public comment on Environmental Assessments resulted in the 
consolidation of information from several parts of the Directive into 
this new section and the addition of some clarifying language. The 
language in paragraphs A, E, and F now clearly emphasizes the policy to 
encourage public involvement in the preparation of an EA. This section 
now clearly describes its relationship to the public involvement 
factors listed in section 2.6, and provides options to achieve the 
public involvement policy. The legal importance of the FONSI and any 
mitigation measures that may be in the FONSI have been clarified. The 
responsibility of the agency to implement mitigation measures contained 
in a FONSI has also been more clearly stated.
    The sections following 4.3 have been renumbered to 4.4, 4.5, and 
4.6, with appropriate editorial and language clarifications, to reflect 
the addition of the two new sections 4.1 and 4.3.
    9. Appendix A, Section 6.2, Classified or Protected Information. 
Many comments stated that the draft Directive asserted unqualified 
authority to keep potentially large amounts of information on the 
environmental impacts of DHS operations secret and out of public view 
in contravention of the disclosure requirements of NEPA and CEQ 
regulations. The commenters argued that DHS should limit the 
Directive's nondisclosure provisions strictly to information that 
unambiguously qualifies for withholding pursuant to a Freedom of 
Information Act (FOIA) exemption. They further contended that to do 
otherwise would violate the provisions of NEPA and CEQ regulations 
governing the disclosure and nondisclosure of information. The comments 
also conveyed concern that certain provisions of the draft Directive, 
as well as new categories of information endorsed in the draft 
Directive, such as Critical Infrastructure Information (CII) and 
Sensitive Security Information (SSI), will be used to withhold 
information about the environmental impacts of DHS operations from the 
public. Some comments argued specifically that the manner in which CII 
and SSI were applied in the draft Directive exceeded the statutory 
mandate. In general, these comments claimed that the draft Directive 
was seeking to unacceptably restrict currently available types of 
information relevant to the health, safety, and well-being of the 
public in violation of the spirit and letter of NEPA.
    The Department carefully reviewed the comments received regarding 
public disclosure of information in environmental impact assessments 
and other documents prepared under NEPA and determined that the 
intention of the initial formulation of policy required clarification. 
DHS intends to comply with all applicable statutes and regulations 
aimed at securing the homeland and making environmental documents 
publicly available. The Department has many responsibilities, including 
the protection of certain information under statutes such as the 
Homeland Security Act, 6 U.S.C. 101, the Aviation Transportation 
Security Act, 49 U.S.C. 114, and the Maritime Transportation Security 
Act, 46 U.S.C. 701. The Department also has responsibilities under 
FOIA, 5 U.S.C. 552, to make information available to the public.
    DHS will appropriately share information that was relied upon to 
formulate decisions that have environmental implications. DHS 
recognizes that there may be instances where we cannot disclose all 
information that supports environmental determinations because the 
information is otherwise protected from disclosure under the mandates 
that the Department must follow. For example, classified information 
may not be released pursuant to FOIA. See 5 U.S.C. 552(b)(1). Likewise, 
SSI and Protected CII are exempted from disclosure under FOIA, pursuant 
to 5 U.S.C. 552(b)(3). See 49 U.S.C. 114(s), 49 CFR part 1520, 6 U.S.C. 
133(a), 6 CFR part 29. Other information will be available to the 
public in accordance with FOIA. Section 6.2 has been revised to clarify 
that FOIA will be followed in public disclosure of environmental impact 
assessments and other documents prepared under NEPA.

Specific Comments on Categorical Exclusions and Responses

    Categorical Exclusion A4. CATEX A4 governs certain administrative 
and regulatory activities. This CATEX has been revised, in consultation 
with CEQ, in order to avoid the potential for confusion in its 
application and to ensure that it is not applied to the development of 
documents that may recommend activities with potential to significantly 
impact the quality of the human environment. Specifically, the 
Department has limited the types of actions contemplated by this CATEX 
to ensure that if activities under this CATEX result in proposals for 
further action, this CATEX may only apply if those proposals are 
already contemplated by another DHS CATEX. Upon further review, it was 
found that this CATEX could be interpreted in a manner to include the 
development of documents containing proposals with potential to 
significantly impact the quality of the human environment. In 
particular the development of documents, such as those cited in the 
examples, could be interpreted broadly to include documents such as 
reports on levels of business activity or plans for physical 
infrastructure development that may have greater potential to 
significantly impact the quality of the human environment. The 
Department intends that the change will clarify the narrow focus of 
this CATEX by expressly excluding from its contemplation the 
development of any proposals for actions where the actions themselves 
would not be covered by a CATEX.
    Categorical Exclusion A6.\1\ This CATEX was the subject of comments 
concerning: (1) The references to waste disposal and (2) public 
information regarding the use of chemicals and low level radio nuclides 
for analytical testing and research. Commenters expressed concern that 
the analysis of impacts from waste disposal for permitted landfills may 
have been done in the past, but that may not account for new waste. 
Commenters also stated that using the existing categorical exclusions 
from the Federal Emergency Management Agency and the United States 
Coast Guard as a basis for this Categorical Exclusion was not 
appropriate, since those CATEXs were limited to procurement and storage 
of such materials and not to disposal. Commenters also expressed 
concern that the public should not be limited in its ability to access 
information regarding the use of chemicals and low level radio nuclides 
for analytical testing and research. One comment, for example, wanted 
DHS to demonstrate or document how ``* * * Chemicals and low level 
radio nuclides for analytical testing and research * * *'' are being 
used safely.
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    \1\ The proposed categorical exclusion A5 in the draft Directive 
was deleted in this final version. All subsequent categorical 
exclusions in the A section were renumbered, beginning with the 
current categorical exclusion A5, to reflect this deletion.
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    To address the concern that the analysis of impacts from waste 
disposal for permitted landfills may have been done in the past, but 
that may not account for new waste, DHS included

[[Page 16794]]

language in example (g) that limits this CATEX to apply to only 
activities of waste disposal in established, permitted landfills and 
authorized facilities; thereby, emphasizing that the Department is held 
to all of the same requirements that are applicable to commercial and 
other federal generators of non-hazardous waste.
    To address the concern that existing CATEXs from the Federal 
Emergency Management Agency and the United States Coast Guard were not 
appropriate to use as a basis for this CATEX, the following explanation 
is provided. During the development of these CATEX, the Panel found 
that various components of the Department, procure non-hazardous goods 
and services and store, recycle, and dispose of non-hazardous goods 
during the normal course of their activities in a manner like that of 
FEMA and the United States Coast Guard. Activities of a similar nature, 
scope, and intensity were found to be common throughout the Department 
in both administrative and operational activities. The vast majority of 
procurements, in conformance with procurement priorities, were found to 
consist of commercially available goods and services. A more limited 
number of procurements were for goods that were provided by commercial 
sources specifically for military (which could include the U.S. Coast 
Guard) or law enforcement purposes. Unique procurements were extremely 
infrequent and mostly adaptations of commercially available goods and 
services. It was also noted that other agencies have CATEX for similar 
activities that are sufficiently descriptive such that it could be 
determined that they included a much broader range of activities and 
encompassed activities of generally greater scope and intensity than 
any in DHS. In addition, all federal agencies, with very few 
limitations, must meet the same requirements to protect the 
environment. For example, the volume of goods and services procured and 
wastes disposed by other agencies dwarf those of DHS and are performed 
under the same regulatory policies with no significant impacts to the 
quality of the human environment.
    To address the concern that the public should not be limited in its 
ability to access information regarding the use of chemicals and low 
level radio nuclides for analytical testing and research, DHS modified 
Example (e) within this CATEX to further define ``analytical testing 
and research'' by clarifying that the intent for including examples of 
those types of non-hazardous materials would be ``for laboratory use'' 
and would thus be subject to the detailed requirements for the handling 
of such materials in established laboratories and similar facilities. 
Changes to Section 6 of the Directive, described elsewhere in this 
Notice, will also address this concern. Categorical Exclusion A7.\2\ 
When A7 was published in the draft Directive, it was the subject of 
comments concerning the availability of public information generally. 
The Department considered the comments regarding public information and 
these concerns are addressed in the Department's response to comments 
on section 6 of the Directive.
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    \2\ The proposed categorical exclusion A5 in the draft Directive 
was deleted in this final version. All subsequent categorical 
exclusions in the A section were subsequently renumbered to reflect 
this deletion.
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    Upon consideration of the scope of this CATEX, two other changes 
were made. A new limitation was added to state that ``If any of these 
commitments result in proposals for further action, those proposals 
must be covered by an appropriate CATEX'' to ensure that, if surveys or 
other actions contemplated under these CATEX result in recommendations 
for further action, those further actions will be appropriately 
evaluated under NEPA. Example (c) was modified and limited by removing 
the phrase ``Site characterization studies and environmental 
monitoring, including siting, construction, operation, and dismantling 
or closing of characterization and monitoring devices * * *'' from the 
descriptive examples to ensure that this CATEX was limited to audits, 
surveys, and data collection of a minimally intrusive nature. These 
additions and changes will better address the studies and other 
administrative activities contemplated by this CATEX. Categorical 
Exclusion B2. CATEX B2 was the subject of comments concerning the 
danger to the environment raised by access to observation posts. The 
chief concern expressed was regarding the risk that establishment of 
and access to observation posts might pose to the endangered Sonoran 
Pronghorn antelope. Specifically, one representative comment stated 
that ``* * * a well-established record overwhelmingly demonstrates that 
construction, use of, and access to such observation posts is clearly 
not appropriate for the [categorical exclusion].''
    The Department considered the comments and concluded that this 
CATEX does not encompass the development of new access roads or 
observation posts. To emphasize the Department's concern in this area, 
the Panel specifically limited the CATEX to, ``* * * existing roads or 
established jeep trails.'' In order to further stress the intent of the 
Department that this CATEX not be extended to areas where there is 
potential for significant impacts on the quality of the human 
environment, the language of this CATEX was modified to expressly limit 
the use of jeep trails to those established by a governmental authority 
which would have shared or primary responsibility for regulating the 
roads or trails.
    In addition, section 3.2 in Appendix A of the Directive contains a 
list of conditions and extraordinary circumstances that must be 
reviewed when applying this CATEX to a specific program or activity 
within DHS. These conditions and extraordinary circumstances were 
developed because, while the vast majority of DHS activities in this 
category do not have potential for significant impacts to the 
environment, activity proponents (Proponents) within DHS need to be 
alert for rare and unique conditions that may require more extensive 
evaluation of the potential for environmental impacts under NEPA. This 
evaluation would include not only the immediate effect of DHS decision, 
but also the potential environmental effects that may indirectly result 
from implementing the decision and the cumulative effects of the 
decision on the quality of the human environment. The Directive now 
contains language that clearly and explicitly prevents the use of the 
CATEX where there is ``A potentially significant effect on species or 
habitats protected by the Endangered Species Act, Marine Mammal 
Protection Act, Migratory Bird Treaty Act, or Magnuson-Stevens Fishery 
Conservation and Management Act.''
    Categorical Exclusion B4. This CATEX was the subject of comments 
regarding the reference to training on specialized equipment. 
Specifically, the comments stated that it should be limited to those 
activities that do not disturb the surface in any way and have no 
potential to disturb the environment. The Department considered the 
comments regarding the reference to training, noting that there existed 
redundant coverage of training with CATEX G1. The references to 
training activities and training activity examples have been deleted 
from this CATEX. Responses to comments on CATEX G1 further address the 
concern regarding the reference to training on specialized equipment.
    Categorical Exclusion B5. This CATEX was changed from the text 
published for public comment to clarify

[[Page 16795]]

that the phrase ``* * * Support for community participation projects * 
* *'' was intended to mean support for and participation in community 
projects. The Department is inherently dependent upon community 
involvement in providing the homeland security services required of it. 
The public is the key customer, beneficiary, and stakeholder for the 
products and services that the Department provides. It is essential 
that the Department engage in civic and community events that both 
serve the public and common good, as well as provide the Department 
with access to and credibility with its private sector customers. This 
change clarifies the nature of events and actions contemplated by this 
CATEX that may be undertaken for such purposes.
    This CATEX was also changed to limit the nature of activities 
contemplated by adding the phrase ``* * * that do not involve 
significant physical alteration of the environment * * *''. Although 
this aspect of this CATEX was not the subject of any public comments, 
it was determined that this limitation would serve to focus the 
activities undertaken by the Department and its components within this 
CATEX on those clearly lacking the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion B6. Although not the subject of any public 
comments, this CATEX for the approval of recreational or public 
activities or events at a location typically used for that type and 
scope of that activity was specifically limited to ensure that the 
activities contemplated under this CATEX would not involve significant 
physical alteration of the environment. This was done to emphasize that 
this CATEX is not to be applied if there is potential for significant 
environmental impact.
    Categorical Exclusion B8. CATEX B8 was the subject of comments 
regarding NEPA review of security equipment. Specifically, the comments 
generally stated that there are many security devices including x-rays 
and detection devices that include the use of dangerous chemical, 
biological, and radiological substances. The comments expressed the 
concern that the evaluation and disposal of these devices could pose an 
environmental risk.
    Security equipment used within the department must meet the 
appropriate requirements of the Nuclear Regulatory Commission (NRC), 
the Food and Drug Administration (FDA), or the Federal Communications 
Commission (FCC). In addition, most of the security equipment consists 
of commercially available products that are also in use by private 
industry and other government agencies.
    Some of the security equipment contains trace amounts of chemical 
or radiological substances or produce X-rays as part of the screening 
process. These chemical and radiological substances and X-rays are 
encapsulated, shielded, and secured within the interior of the 
equipment. All of the Department's security systems must meet federal 
requirements for allowable levels of radiation emissions. There are no 
biological substances in the security equipment. In addition, all 
components within the Department that use these types of equipment 
perform periodic radiation surveys or wipe tests of all X-ray producing 
equipment or equipment that contains a small radioactive source to 
ensure compliance with 21 CFR 1020.40, Cabinet X-ray Systems, and NRC 
licensing requirements. The systems are also surveyed and inspected 
whenever they are relocated or maintenance is performed on the X-ray 
components and shielding.
    Disposal of security equipment is consistent with Federal Property 
Management Regulations found at 41 CFR 101 and 102. Furthermore, DHS is 
also required to minimize disposal through maximum reutilization and 
specialized sales, and will ensure that maximum attainable recycling 
and recovery are achieved in accordance with the Resource Conservation 
and Recovery Act (RCRA), 42 U.S.C. 6901-6992, and participation in the 
Department of Energy's Homeland Defense Equipment Reutilization (HDER) 
Program.
    DHS has an agreement with DOE to refurbish, calibrate, and issue 
radiological detection equipment to local jurisdictions that request to 
participate in the HDER Program. No radioactive test sources are issued 
to local jurisdictions with this equipment, thereby limiting the 
potential for any radiological contamination. If DOE determines that 
equipment is not fit to refurbish, DOE is responsible for the 
equipment's disposition.
    This CATEX was changed to further demonstrate that the Department 
must contemplate applicable requirements to protect the environment 
when determining whether the removal or disposal of security equipment 
to screen for or detect dangerous or illegal individuals or materials 
would have the potential to significantly impact the quality of the 
human environment.
    Categorical Exclusion B9. CATEX B9 was the subject of comments 
regarding the temporary use of barriers and jersey walls. Specifically, 
comments sought clarification of the term ``temporary.'' ``Temporary,'' 
as contemplated in this CATEX, means that the barrier is easily 
installed with no need to disturb soils or the surrounding areas, and 
that it can be easily removed or moved to another area. Additional 
comments indicated that ``temporary'' should be limited to a term of 
time, with a time period of a week or less. Comments on CATEX B9 also 
included concerns regarding: (1) The inclusion of diver/swimmer devices 
that could harm marine species and habitat, (2) the evaluation of 
blast/shock impact resistant systems in manners that could pose a risk 
to migratory birds, endangered species, and air quality, and (3) the 
reference to remote video surveillance systems that could cause 
significant surface disturbance.
    The Department does not deem ``temporary'' regarding the use of 
barriers, fences, and jersey walls to mean one week or less. The term 
temporary is used by the Department to refer to structures that are not 
permanent and that, depending upon mission concerns, are eventually 
removed. The Department views the reference to the temporary use of 
barriers, fences, and jersey walls as sufficiently narrow in that only 
barriers, fences, and jersey walls on or adjacent to existing 
facilities are included in B9. A barrier, fence or jersey wall attached 
to, or set adjacent to, an existing facility will not normally have an 
adverse effect on the natural environment since the construction and 
location of the barrier will normally take place on land that has 
already been disturbed or built upon; consequently, the text has been 
clarified by adding ``or on land that has already been disturbed or 
built upon''. In addition, this CATEX has been modified to emphasize 
that removal and disposal must be in compliance with applicable 
requirements to protect the environment.
    In response to the concern that activities and examples under this 
CATEX may adversely impact the environment, the Department notes that 
section 3.2 in Appendix A of the Directive contains a list of 
conditions and extraordinary circumstances that were developed in 
recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. This evaluation would include not only the immediate effect of 
DHS decision, but also the potential environmental effects that may 
indirectly result from implementing the decision and the cumulative 
effects of the decision on the quality of the human environment. These 
extraordinary circumstances are

[[Page 16796]]

established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    This CATEX was changed to further demonstrate that the Department 
must contemplate applicable requirements to protect the environment 
when determining whether the removal or disposal of physical security 
devices or controls to enhance the physical security of existing 
critical assets would have the potential to significantly impact the 
quality of the human environment.
    Finally, the phrase, ``* * * for land based and waterfront 
facilities,'' was added to qualify, ``* * * blast/shock impact-
resistant systems,'' within the list of devices and controls to limit 
and clarify the intent of the CATEX.
    Categorical Exclusion B11.\3\ This CATEX was the subject of 
comments regarding the impact of routine monitoring patrols. 
Specifically, the comment indicated concern that routine monitoring 
patrols can have an impact on the environment depending on the 
intensity and number of persons involved in the patrols. The comment 
argued that this concern is particularly important in the case of 
patrols occurring in sensitive areas such as wilderness areas that may 
be habitat to endangered species.
---------------------------------------------------------------------------

    \3\ The proposed categorical exclusion B10 in the draft 
Directive was deleted in this final version. All subsequent 
categorical exclusions in the B section were renumbered, beginning 
with the current categorical exclusion B10, to reflect this 
deletion.
---------------------------------------------------------------------------

    The Department considered the concerns associated with this comment 
and noted that due to their generally more remote and undeveloped 
state, protected wilderness areas, national wildlife refuges, national 
forests, national monuments, marine sanctuaries, or critical habitat 
for marine mammals or endangered species tend to attract illegal 
entrants, smugglers, and potential terrorists who are seeking to avoid 
detection. The volume and frequency of this illegal activity in these 
environmentally sensitive areas results in harm to the natural 
resources that these areas have been set aside to protect. The patrols 
contemplated by this CATEX could serve as a deterrent to individuals 
who might otherwise harm sensitive natural resources. In any case, this 
CATEX could not be used for patrol activities that may be associated 
with extraordinary circumstances.
    DHS considered the concern that routine monitoring patrols under 
this CATEX may have a significant effect on the environment, in 
particular wilderness areas and critical habitat for endangered 
species. Section 3.2 in Appendix A of the Directive contains a list of 
conditions and extraordinary circumstances that were developed in 
recognition that activity proponents need to be alert for rare and 
unique conditions associated with routine monitoring patrols that may 
require more extensive evaluation of the potential for environmental 
impacts under NEPA. This evaluation would include not only the 
immediate effect of the DHS decision, but also the potential 
environmental effects that may indirectly result from implementing the 
decision and the cumulative effects of the decision on the quality of 
the human environment. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion D1. This CATEX was the subject of comments 
regarding the term, ``minor renovations and additions.'' Specifically, 
the comment expressed the concern that activities taking place outside 
of a building may have impacts on sensitive coastal resources that may 
be adjacent to a project. The comment expressed the desire that the 
categorical exclusion be limited to projects that are not located near 
such resources.
    DHS considered this concern regarding the potential for sensitive 
coastal resources adjacent to a project. Section 3.2 in Appendix A of 
the Directive contains a list of conditions and extraordinary 
circumstances that were developed in recognition that Proponents need 
to be alert for rare and unique conditions in the application of this 
CATEX that may require more extensive evaluation of the potential for 
environmental impacts under NEPA; more specifically, subparagraph (4) 
of section 3.2 states that DHS Proponents need to be alert for a 
potentially significant effect on an environmentally sensitive area. An 
environmentally sensitive area is defined in the Glossary to include 
coastal zones and other important natural resources that may be present 
in coastal areas. This evaluation would include not only the immediate 
effect of the Department's decision, but also the potential 
environmental effects that may indirectly result from implementing the 
decision and the cumulative effects of the decision on the quality of 
the human environment. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    This CATEX was changed in that the example, ``* * *extending an 
existing roadway in a developed area a short distance,'' was deleted to 
ensure that its application would not extend to DHS activities that 
would have the potential to significantly impact the quality of the 
human environment.
    Categorical Exclusion D3. This CATEX was the subject of comments 
regarding: (1) pest control activities, and (2) the impact of repair 
and maintenance activities on sensitive coastal areas. The comment 
focusing on pest control activities expressed concern that there exists 
the need for restrictions on pest control activities to avoid the 
potential for a significant impact on endangered species, groundwater, 
and public health.
    DHS considered the concern with pest control activities and notes 
that the reference to pest control was only an example of the type of 
activity envisioned by the CATEX. In providing examples, the Department 
does not seek to extend the CATEX to actions including extraordinary 
circumstances that may result in the activity having significant 
environmental effects. However, in response to these comments, the 
wording of this CATEX was narrowed to clarify its application to 
Department-managed properties. Pest control activities that may be 
conducted at Department-managed properties would be incidental to the 
management of the facility for mission requirements. DHS does not have 
a natural resources management mission that may require the general 
eradication of pests. Typical pest control activities would consist of 
but not necessarily be limited to those actions necessary to meet 
health requirements in and around cafeterias and residential 
facilities, actions to maintain the integrity of structures, or the 
Department's participation as one of many other property managers in 
larger pest control programs run by other Federal or state agencies.
    DHS also considered the comment concerning the impact of repair and 
maintenance activities on sensitive coastal areas. Section 3.2 in 
Appendix A of the Directive contains a list of conditions and 
extraordinary circumstances that were developed in recognition that 
Proponents need to be alert for rare and unique conditions in the 
application of this CATEX that may require more extensive evaluation of 
the potential for environmental impacts under NEPA; more specifically, 
subparagraph (4) of section 3.2 states that DHS Proponents need to be 
alert for a potentially significant effect on an environmentally 
sensitive area. An environmentally sensitive area is

[[Page 16797]]

defined in the Glossary to include coastal zones and other important 
natural resources that may be present in coastal areas. This evaluation 
would include not only the immediate effect of the Department's 
decision, but also the potential environmental effects that may 
indirectly result from implementing the decision and the cumulative 
effects of the decision on the quality of the human environment. These 
extraordinary circumstances are established as criteria to ensure that 
this CATEX would not be applied to any activity that would have the 
potential to significantly impact the quality of the human environment.
    Categorical Exclusion D5. This CATEX was the subject of comments 
regarding dredging. Specifically, several comments suggested that 
dredging activities can have a significant effect on marine and 
riparian habitats, effecting endangered species, critical habitat, 
water flow, flooding, waste management, and a host of other 
environmental concerns. Additionally, some commenters suggested 
limiting this categorical exclusion to the United States Coast Guard.
    The Department notes that its components do not generally have 
independent authority to conduct maintenance dredging without complying 
with the many laws and requirements established to protect the 
environment. This exclusion from further environmental analysis under 
NEPA is adequately limited by the need to secure applicable permits and 
any required approval for a disposal site. In the process of securing 
these permits, agencies such as the Army Corps of Engineers and the 
Environmental Protection Agency, as well as various state agencies, 
would perform independent environmental reviews of proposed DHS 
maintenance dredging activities. It is also noted that the U.S. Coast 
Guard maintenance dredging operations, which are the greatest in scope 
and intensity of any of these types of activities within DHS, have been 
conducted for many years without significant impact to the human 
environment.
    DHS considered this concern regarding the potential for dredging 
activities to have a significant effect on various environmental 
resources. Section 3.2 in Appendix A of the Directive contains a list 
of conditions and extraordinary circumstances that were developed in 
recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. More specifically, these conditions and extraordinary 
circumstances include consideration of the potential for significant 
effects on marine and riparian habitats, endangered species, critical 
habitat, water flow, flooding, waste management, and various other 
environmental concerns. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion E1. CATEX E1 was the subject of a comment 
regarding facilities that cross tidal, coastal, or navigable waters. 
Specifically, the comment suggested that the activities contemplated by 
this categorical exclusion are not of concern in upland areas; however, 
if any of the facilities cross tidal, coastal, or navigable waters 
there is the potential for environmental impacts.
    The Department considered this comment and notes that its elements 
do not have independent authority to conduct activities without 
complying with the many laws and requirements established to protect 
the environment. This exclusion from further environmental analysis 
under NEPA is adequately limited by the need to secure applicable 
permits and any required approvals from the appropriate federal, state, 
and local regulatory agencies.
    However, section 3.2 in Appendix A of the Directive contains a list 
of conditions and extraordinary circumstances that were developed in 
recognition that Proponents need to be alert for rare and unique 
conditions in the application of this CATEX that may require more 
extensive evaluation of the potential for environmental impacts under 
NEPA. More specifically, Appendix A, section 3.2, subparagraph (4) 
states that DHS Proponents need to be alert for a potentially 
significant effect on an environmentally sensitive area. An 
environmentally sensitive area is defined in the Glossary to include 
coastal zones, tidal, coastal, or navigable waters, and other important 
natural resources that may be present in coastal areas. An evaluation 
of these extraordinary circumstances would include not only the 
immediate effect of the Department's decision, but also the potential 
environmental effects that may indirectly result from implementing that 
decision and the cumulative effects of the decision on the quality of 
the human environment.
    Categorical Exclusion E2. CATEX E2 was the subject of comments 
expressing concern regarding the precise definition of, ``developed 
area'' or ``previously disturbed site'' which appear in paragraph (b), 
and the potential for this categorical exclusion serving as a loophole 
permitting an infinite amount of construction.
    The Department considered the comment regarding the definitions of 
``developed area'' or ``previously disturbed site.'' The comment 
specifically addressed wetland resources, stating that it was 
reasonable to believe that wetlands capable of restoration might be 
considered ``disturbed areas.'' The comment explains by way of example 
that any such disturbance of a wetland in a particular state that was 
not related to restoration would possibly be inconsistent with the 
enforceable policies of the federally-approved Coastal Management 
Program within that state. In response to that concern, the Department 
modified the text by replacing the phrase, ``* * * local planning and 
zoning standards,'' with the phrase, ``* * * Federal, State, tribal, 
and local planning and zoning standards and consistent with federally 
approved state coastal management programs'' as a condition precedent 
to any action taken under this CATEX.
    The Department also considered the concern that this CATEX might be 
read to permit an infinite amount of construction as long as it could 
be artfully tailored to meet or to allegedly meet the specified 
criterion. In response, the Department makes reference to section 3.2 
in Appendix A of the Directive which contains a list of conditions and 
extraordinary circumstances that must be reviewed in the application of 
this CATEX to a specific program or activity within the Department. 
These conditions and extraordinary circumstances were developed in 
recognition that, while the vast majority of the Department activities 
in this category do not have potential for significant impacts to the 
environment, activity Proponents within the Department need to be alert 
for rare and unique conditions that may require more extensive 
evaluation of the potential for environmental impacts under NEPA. This 
evaluation would include not only the immediate effect of the 
Department's decision, but also the potential environmental effects 
that may indirectly result from implementing the decision and the 
cumulative effects of the decision on the quality of the human 
environment.
    Categorical Exclusion E4. CATEX E4 was the subject of comments 
expressing concern regarding the destruction or disruption of adjacent 
habitat during demolition activities. The Department considered the 
comment regarding potentially significant impacts on

[[Page 16798]]

habitat areas adjacent to demolition activities. The comment 
specifically expressed a concern that the categorical exclusion needs 
to make provisions to prevent the destruction or disruption of adjacent 
habitat during demolition activities. The comment asserts that while 
activities may be otherwise in compliance with regulations compliance 
does not ensure that projects will cease when they have a significant 
effect on the environment.
    In response to the concern that activities under this CATEX may 
adversely impact adjacent habitat or may otherwise have a significant 
effect on the environment, the Department notes that section 3.2 in 
Appendix A of the Directive contains a list of conditions and 
extraordinary circumstances that were developed in recognition that 
activity Proponents need to be alert for rare and unique conditions in 
the application of this CATEX that may require more extensive 
evaluation of the potential for environmental impacts under NEPA. This 
evaluation would include not only the immediate effect of the DHS 
decision, but also the potential environmental effects that may 
indirectly result from implementing the decision and the cumulative 
effects of the decision on the quality of the human environment. These 
extraordinary circumstances are established as criteria to ensure that 
this CATEX would not be applied to any activity that would have the 
potential to significantly impact the quality of the human environment.
    Categorical Exclusion E5. CATEX E5 was the subject of comments 
expressing concern regarding actions that might cause imbalance to a 
stable ecosystem. The comment specifically addressed the concern that 
natural resource management activities might actually imbalance natural 
ecological functions and cause further environmental problems. The 
comment stated that restoration often causes short-term adverse effects 
in order to gain long-term beneficial effects and asserts that NEPA 
analysis is necessary to balance these competing effects in different 
timeframes.
    In response to these comments, the Department modified the text 
published for public comment by replacing the phrase, ``* * * to 
enhance native flora and fauna,'' with the phrase, ``* * * to aid in 
the maintenance or restoration of native flora and fauna,'' and added 
the limiting term, ``* * * and control of non-indigenous species'' as a 
natural resource management activity category within this CATEX. The 
Department also clarified the scope of this CATEX by adding the 
limiting term, ``* * * on Department managed property,'' to clarify 
that this CATEX is limited to property under the control of the 
Department. DHS made these changes to clarify that DHS is not a large 
land managing agency and the scope of activities contemplated would not 
encompass large scale land management activities, but would be limited 
to those properties where DHS had direct management responsibilities.
    In response to the concern that activities under this CATEX, such 
as restoration, may cause short-term adverse effects in order to gain 
long-term beneficial effects, procedures in the Directive require 
consideration of extraordinary circumstances when this CATEX would be 
applied to a specific action. Section 3.2 in Appendix A of the 
Directive contains a list of conditions and extraordinary circumstances 
that were developed in recognition that activity proponents need to be 
alert for rare and unique conditions in the application of this CATEX 
that may require more extensive evaluation of the potential for 
environmental impacts under NEPA. This evaluation would include not 
only the immediate effect of the DHS decision, but also the potential 
environmental effects that may indirectly result from implementing the 
decision and the cumulative effects of the decision on the quality of 
the human environment. These extraordinary circumstances are 
established as criteria to ensure that this CATEX would not be applied 
to any activity that would have the potential to significantly impact 
the quality of the human environment.
    Categorical Exclusion E6. The Department received