81 FR 32688 - National Environmental Policy Act Procedures
DEPARTMENT OF JUSTICE
Federal Bureau of Investigation Federal Register Volume 81, Issue 100 (May 24, 2016)
Federal Bureau of Investigation
Federal Register Volume 81, Issue 100 (May 24, 2016)
| Page Range | 32688-32693 | |
| FR Document | 2016-11945 |
[Federal Register Volume 81, Number 100 (Tuesday, May 24, 2016)] [Proposed Rules] [Pages 32688-32693] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-11945] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Federal Bureau of Investigation 28 CFR Part 61 RIN 1110-AA32 National Environmental Policy Act Procedures AGENCY: Federal Bureau of Investigation, Department of Justice. ACTION: Notice of proposed rule; request for public comment. ----------------------------------------------------------------------- SUMMARY: The Department of Justice is proposing to promulgate regulations establishing the Federal Bureau of Investigation's (FBI's) National Environmental Policy Act (NEPA) procedures. These proposed regulations would establish a process for the FBI's implementation of NEPA, Executive Order 11514, Executive Order 12114, and Council on Environmental Quality (CEQ) and Department of Justice (Department) regulations addressing the procedural provisions of NEPA. Pursuant to CEQ regulations, the FBI is soliciting comments on the proposed FBI NEPA regulations from members of the interested public. DATES: Written comments must be postmarked and electronic comments must be submitted on or before July 25, 2016. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period. ADDRESSES: Submit comments online at http://www.regulations.gov. Submit written comments by addressing them to FBI NEPA Comments, ATTN: Scott A. Bohnhoff, 935 Pennsylvania Ave. NW., Room WB-460, Washington, DC 20535 or by facsimile to 202-436-7248. FOR FURTHER INFORMATION CONTACT: Scott Bohnhoff, FBI Occupational Safety and Environmental Programs (OSEP) Unit Chief; Email: [email protected]; Telephone: (202) 436-7500. SUPPLEMENTARY INFORMATION: Electronic Access and Filing Electronic comments are preferred. For comments sent via U.S. Postal Service, please do not submit duplicate electronic or facsimile comments. Please confine comments to the proposed rule. All submissions received must include the agency name (FBI) and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information. Explanation of Proposed Rule CEQ's NEPA implementing regulations contained in 40 CFR parts 1500 through 1508 require each Federal agency to adopt procedures (40 CFR 1507.3) to ensure that decisions are made in accordance with the policies and purposes of NEPA (40 CFR 1505.1). The Department has established such policies and procedures at 28 CFR part 61. The FBI NEPA Program has been established to supplement the Department's procedures and to ensure that environmental considerations are fully integrated into the FBI's mission activities. The FBI NEPA regulations are intended to promote reduction of paperwork by providing guidelines for development of streamlined and focused NEPA documents and to reduce delay by integrating the NEPA process into the early stages of planning. They are also intended to promote transparency by ensuring that NEPA documents are written in plain language and follow a clear format so that they are easily understood by the public and all parties involved in implementation of the proposed action. The FBI NEPA regulations are not intended to serve as a comprehensive NEPA guide, but will serve as a framework for the FBI NEPA Program. The FBI plans to apply its NEPA regulations in conjunction with NEPA, the CEQ regulations (40 CFR parts 1500 through 1508), the Department's implementing regulations (28 CFR part [[Page 32689]] 61), and all other applicable environmental regulations, executive orders, statutes, and laws developed for the protection of the environment. The FBI will, as appropriate, keep the public informed of the FBI NEPA program and NEPA actions and ensure that relevant environmental documents, comments, and responses accompany proposals through all levels of decision making (40 CFR 1505.1(d)). The FBI's NEPA program will be implemented primarily by the following key persons within the FBI:The Environmental Executive/Bureau Designated Environmental, Safety and Health Official (DESHO) will maintain signature authority over all Findings of No Significant Impact (FONSIs) and Records of Decision (RODs); oversee the FBI NEPA Program; ensure that NEPA reviews are initiated as early as possible in the project planning process; ensure that decisions are made in accordance with the general policies and purposes of NEPA; and use his or her best efforts to ensure that sufficient funds are available to perform NEPA management-related planning, actions, and reporting. These responsibilities may be delegated to the Program Deputy Bureau DESHO. The Program Deputy Bureau DESHO will designate and assign duties to the FBI NEPA Program Manager; ensure that the FBI NEPA Program is coordinated with other environmental policies and directives; review the FBI NEPA Program metrics; and sign FONSIs and RODs as delegated by the Environmental Executive/Bureau DESHO. The FBI NEPA Program Manager will serve as the FBI's primary, centralized NEPA contact; provide for overall development, implementation, coordination, administration, and quality assurance measures associated with the FBI NEPA Program; advise FBI employees on NEPA matters; establish and ensure implementation of FBI-wide NEPA policy, guidance, and training; and review NEPA documentation. Deputy Bureau DESHOs are heads of the FBI branches, divisions, or offices reporting directly to the FBI Deputy Director or Associate Deputy Director who, within their span of control, will ensure the NEPA program is properly implemented and managed; use their best efforts to ensure that sufficient funds within their branches, divisions, and offices are available to perform NEPA management-related planning, actions, and reporting; and assign staff to fill NEPA roles as required. Regulatory Certifications Executive Orders 12866 and 13563--Regulatory Planning and Review These proposed regulations have been drafted and reviewed in accordance with Executive Order 12866, ``Regulatory Planning and Review,'' section 1(b), Principles of Regulation, and in accordance with Executive Order 13563, ``Improving Regulation and Regulatory Review,'' section 1(b), General Principles of Regulation. The Department has determined that these proposed regulations are not a ``significant regulatory action'' under Executive Order 12866, section 3(f), and accordingly, they have not been reviewed by the Office of Management and Budget. Both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits associated with implementation of these proposed regulations and believes that the regulatory approach selected maximizes net benefits by better enabling the FBI to comply with NEPA. Further benefits associated with implementation of these proposed regulations include: A streamlined approach to performing NEPA reviews, which is expected to lead to a reduction in delay and excessive paperwork; enhanced environmental awareness; collaborative and participatory public involvement; clear compliance guidelines resulting in reduced liability risk; and enhanced cost savings arising from fewer requirements to prepare Environmental Assessments (EAs) where projects are covered by categorical exclusions (CATEXs). The FBI contracts out, on average, twenty EAs annually for actions that would be covered by the CATEXs instated by the proposed regulations. The average contracting costs associated with development of each of these EAs is approximately $50,000. Therefore, the proposed rule would result in an annual cost savings of approximately $1,000,000 in contract payouts. The FBI anticipates that its own staffing costs with regard to NEPA compliance will remain roughly the same upon adoption of the new rule, as FBI personnel will still be involved in reviewing projects and developing and implementing a NEPA compliance strategy for each one. The exact impact of the proposed regulations on staffing and funding requirements cannot be calculated due to uncertainty about the number of future projects and the level at which environmental review will occur (CATEX, EA, or Environmental Impact Statement (EIS)). However, as discussed in the preceding paragraphs, the FBI estimates a net annual cost savings of up to $1,000,000. Executive Order 13132--Federalism These proposed regulations will not have a substantial, direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. In accordance with Executive Order 13132, these proposed regulations do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Regulatory Flexibility Act The Department, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) has reviewed these proposed regulations and, by approving them, certifies that these regulations will not have a substantial economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 These proposed regulations will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not substantially or uniquely affect small governments. Therefore, no action was deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 These proposed regulations are not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C. 804). These proposed regulations will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or have substantial adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign- based enterprises in domestic and export markets. [[Page 32690]] Paperwork Reduction Act of 1995 The collection of information contained in this notice of proposed rulemaking will be submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). The proposed regulations are intended to promote reduction of paperwork by providing guidelines for the development of streamlined and focused NEPA documents and to reduce delay by integrating the NEPA process into the early stages of planning. They are also intended to promote transparency by ensuring that NEPA documents are written in plain language and follow a clear format so that they are easily comprehensible by the public and all parties involved in implementation of the proposed action. A CATEX is a category of actions that, barring extraordinary circumstances, do not individually or cumulatively have a significant effect on the quality of the human environment and for which neither an EA nor an EIS is required. Using CATEXs for such activities reduces unnecessary paperwork and delay. The estimated average document length is 15 pages for an EA and 150 pages for an EIS. EAs, EISs, and their associated administrative records must be retained for at least six years after signature of the NEPA decision document. By contrast, a CATEX requires either no documentation or very brief documentation (records of environmental consideration documenting CATEXs are typically only a few pages long). The estimated total annual NEPA documentation burden associated with these regulations is unknown at this time due to the uncertainty of the number of projects that will require various levels of NEPA review. National Environmental Policy Act The Council on Environmental Quality regulations do not direct agencies to prepare a NEPA analysis or document before establishing agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three classes of actions: Those that normally require preparation of an environmental impact statement; those that normally require preparation of an environmental assessment; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). Establishing categorical exclusions does not require preparation of a NEPA analysis or document. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The issuance of regulations establishing categorical exclusions does not itself require NEPA analysis and documentation. See, e.g., Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000). List of Subjects in 28 CFR Part 61 Environmental impact statements. Authority and Issuance Accordingly, part 61 of title 28 of the Code of Federal Regulations is proposed to be amended as follows: PART 61--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT 0 1. The authority citation for part 61 continues to read as follows: Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; Executive Order No. 11991. 0 2. Add appendix F to part 61 to read as follows: Appendix F to Part 61--Federal Bureau of Investigation Procedures Relating to the Implementation of the National Environmental Policy Act 1. Authority These procedures are issued pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., regulations of the Council on Environmental Quality (CEQ), 40 CFR part 1500, regulations of the Department of Justice (Department), 28 CFR part 61, the Environmental Quality Improvement Act of 1970, as amended, 42 U.S.C. 4371, et seq., and Executive Order 11514 of March 5, 1970, ``Protection and Enhancement of Environmental Quality,'' as amended by Executive Order 11991 of May 24, 1977. 2. Purpose The Federal Bureau of Investigation (FBI) NEPA Program has been established to assist the FBI in integrating environmental considerations into the FBI's mission and activities. The FBI NEPA regulations have been developed to supplement CEQ and Department NEPA regulations by outlining internal FBI policy and procedures. Through these provisions, the FBI shall promote compliance with NEPA and CEQ's implementing regulations, encourage environmental sustainability by integrating environmental considerations into mission and planning activities, and ensure that environmental analyses reflect consideration of non-regulatory requirements included in Federal orders, directives, and policy guidance. 3. Agency Description The FBI is an intelligence-driven national security and law enforcement component within the Department of Justice. The FBI's mission is to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to Federal, state, municipal, and international agencies and partners. General types of FBI actions include: (a) Operational activities, including the detection, investigation, and prosecution of crimes against the United States and the collection of intelligence. (b) Training activities, including the training of Federal, state, local, and foreign law enforcement personnel. (c) Real estate activities, including acquisitions and transfers of land and facilities and leasing. (d) Construction, including new construction, renovations, repair, and demolition of facilities, infrastructure, utilities systems, and other systems. (e) Property maintenance and management activities, including maintenance of facilities, equipment, and grounds and management of natural resources. (f) Administrative and regulatory activities, including personnel management, procurement of goods and services, and preparation of regulations and policy guidance. 4. NEPA Documentation and Decision Making The FBI will use the NEPA process as a tool to ensure an interdisciplinary review of its actions and to ensure that impacts of those actions on the quality of the human environment are given appropriate consideration in FBI decisions; to identify and assess reasonable alternatives to its actions; and to facilitate early and open communication, when practicable, with the public and other agencies and organizations. (a) Level of NEPA Analysis The level of NEPA analysis will depend on the context and intensity of the environmental impacts associated with the proposed action. Environmental Assessments (EAs) and Environmental Impact Statements (EISs) should include a reasonable range of alternatives, and should also include descriptions of other alternatives that the decision maker determined did not require detailed study, with a brief discussion of the reasons for such determinations. If there are no reasonable alternatives, the EA or EIS must explain why no reasonable alternative exists. The decision maker must consider all the alternatives discussed in the EA or EIS. The decision maker may choose an alternative that is not expressly described in a draft EA or EIS, provided it is qualitatively within the spectrum of alternatives that were discussed in the draft. [[Page 32691]] (b) Responsibility for NEPA Analysis (1) The FBI's responsibility for NEPA review of actions shall be determined on a case-by-case basis depending on the extent to which the entire project will be within the FBI's jurisdiction and on other factors. For example, if a project involves the construction of a facility, the relevant factors include: The extent of FBI control and funding in the construction or use of the facility, whether the facility is being built solely for FBI requirements, and whether the project would proceed without FBI action. (2) The extent of the FBI's responsibility for NEPA review of joint Federal actions, where the FBI and another Federal agency are cooperating on a project, will be determined on a case-by-case basis depending on which agency is designated as the lead agency and which is the cooperating agency. (3) In cases where FBI actions are a component of a larger project involving a private action or an action by a local or state government, the FBI's proposed action analyzed in the NEPA document will include only the portions of the project over which the FBI has sufficient control and responsibility to warrant Federal review. However, the cumulative impacts analysis will account for past, present, and reasonably foreseeable future activities affecting the same natural resources as the FBI project. When actions are planned by private or other non-Federal entities, the FBI will provide the potential applicant reasonably foreseeable requirements for studies or other information for subsequent FBI action. In addition, the FBI will consult with appropriate state and local agencies, tribal entities, interested private persons, and organizations early in a project's planning process when the FBI's involvement is reasonably foreseeable. (4) Whenever appropriate and practicable, the FBI will incorporate by reference and rely upon the environmental analyses and reviews of other Federal, tribal, state, and local agencies. 5. Categorical Exclusions (a) Categorical Exclusion (CATEX) Criteria (40 CFR 1508.4) A CATEX is a category of actions that, barring extraordinary circumstances, do not individually or cumulatively have a significant effect on the quality of the human environment and for which neither an EA nor an EIS is required. Using CATEXs for such activities reduces unnecessary paperwork and delay. Such activities are not excluded from compliance with other applicable Federal, state, or local environmental laws. To qualify for a CATEX, an action must meet all of the following criteria: (1) The proposed action fits entirely within one or more of the CATEXs; (2) The proposed action has not been segmented and is not a piece of a larger action. For purposes of NEPA, actions must be considered in the same review if it is reasonably foreseeable that the actions are connected (e.g., where one action depends on another). (3) No extraordinary circumstances exist that would cause the normally excluded proposed action to have significant environmental effects. Extraordinary circumstances are assumed to exist when the proposed action is likely to involve any of the following circumstances: (i) An adverse effect on public health or safety; (ii) An adverse effect on Federally listed endangered or threatened species, marine mammals, or critical habitat; (iii) An adverse effect on archaeological resources or resources listed or determined to be eligible for listing in the National Register of Historic Places; (iv) An adverse effect on an environmentally sensitive area, including floodplains, wetlands, streams, critical migration corridors, and wildlife refuges; (v) A material violation of a Federal, state, or local environmental law by the FBI; (vi) An effect on the quality of the human or natural environment that is likely to be highly scientifically controversial or uncertain, or likely to involve unique or unknown environmental risks; (vii) Establishment of precedents or decisions in principle for future action(s) that have the potential for significant impacts (e.g., master plans, Integrated Natural Resource Management Plans, Integrated Cultural Resource Management Plans); (viii) Significantly greater scope or size than normally experienced for a particular category of action; (ix) Potential for substantial degradation of already existing poor environmental conditions; (x) Initiation of a potentially substantial environmental degrading influence, activity, or effect in areas not already substantially modified; or (xi) A connection to other actions with individually insignificant, but cumulatively significant, impacts. (b) Documentation of CATEX Usage As noted in paragraph (c) of this section, certain FBI actions qualifying for a CATEX have been predetermined to have a low risk of extraordinary circumstances and, as such, have been designated as not requiring preparation of a Record of Environmental Consideration (REC) Determination Form. A REC Determination Form must be prepared for all other FBI actions subject to NEPA review. The REC Determination Form will help determine if the proposed action falls within a category of actions that has been excluded from further NEPA review or if the action will require further analysis through an EA or EIS. The REC Determination Form will also identify any extraordinary circumstances that require the FBI to perform an EA or an EIS for an action that would otherwise qualify for a CATEX. (c) List of No REC Required (NR) FBI CATEXs (NR1) Reductions, realignments, or relocation of personnel, equipment, or mobile assets that do not result in changing the use of the space in such a way that could cause environmental effects or exceed the infrastructure capacity outside of FBI-managed property. An example of exceeding the infrastructure capacity would be an increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase. (NR2) Personnel, fiscal, management, and administrative activities, including recruiting, processing, paying, contract administration, recordkeeping, budgeting, personnel actions, and travel. (NR3) Decisions to close facilities, decommission equipment, or temporarily discontinue use of facilities or equipment, where the facility or equipment is not used to prevent or control environmental impacts. This excludes demolition actions. (NR4) Preparation of policies, procedures, manuals, and other guidance documents for which the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and for which the applicability of the NEPA process will be evaluated upon implementation, either collectively or case-by-case. (NR5) Grants of license, easement, or similar arrangements for use by vehicles (not to include substantial increases in the number of vehicles loaded); electrical, telephone, and other transmission and communication lines; pipelines, pumping stations, and facilities for water, wastewater, stormwater, and irrigation; and for similar utility and transportation uses. Construction or acquisition of new facilities are not included. (NR6) Acquisition, installation, operation, and maintenance of temporary equipment, devices, or controls necessary to mitigate effects of FBI's missions on health and the environment. This CATEX is not intended to cover facility construction or related activities. Examples include: (i) Temporary sediment and erosion control measures required to meet applicable Federal, tribal, state, or local requirements; (ii) Installation of temporary diversion fencing to prevent earth disturbance within sensitive areas during construction activities; and (iii) Installation of temporary markers to delineate limits of earth disturbance in forested areas to prevent unnecessary tree removal. (NR7) Routine flying operations and infrequent, temporary (fewer than 30 days) increases in aircraft operations up to 50 percent of the typical FBI aircraft operation rate. (NR8) Proposed new activities and operations to be conducted in an existing structure that would be consistent with previously established safety levels and would not result in a change in use of the facility. Examples include new types of research, development, testing, and evaluation activities, and laboratory operations conducted within existing enclosed facilities designed to support research and development activities. (NR9) Conducting audits and surveys; data collection; data analysis; and processing, permitting, information dissemination, review, interpretation, and development of documents. If any of these activities result in proposals for further action, those proposals must be covered by an appropriate CATEX or other NEPA analysis. Examples include: (i) Document mailings, publication, and distribution, training and information [[Page 32692]] programs, historical and cultural demonstrations, and public affairs actions; (ii) Studies, reports, proposals, analyses, literature reviews, computer modeling, and intelligence gathering and sharing; (iii) Activities designed to support improvement or upgrade management of natural resources, such as surveys for threatened and endangered species or cultural resources; wetland delineations; and minimal water, air, waste, and soil sampling; (iv) Minimally intrusive geological, geophysical, and geo- technical activities, including mapping and engineering surveys; (v) Conducting facility audits, Environmental Site Assessments, and environmental baseline surveys; and (vi) Vulnerability, risk, and structural integrity assessments of infrastructure. (NR10) Routine procurement, use, storage, and disposal of non- hazardous goods and services in support of administrative, operational, or maintenance activities in accordance with executive orders and Federal procurement guidelines. Examples include: (i) Office supplies and furniture; (ii) Equipment; (iii) Mobile assets (i.e., vehicles, vessels, aircraft); (iv) Utility services; and (v) Deployable emergency response supplies and equipment. (NR11) Routine use of hazardous materials (including procurement, transportation, distribution, and storage of such materials) and reuse, recycling, and disposal of solid, medical, radiological, or hazardous waste in a manner that is consistent with all applicable laws, regulations, and policies. Examples include: (i) Use of chemicals and low-level radionuclides for laboratory applications; (ii) Refueling of storage tanks; (iii) Appropriate treatment and disposal of medical waste; (iv) Temporary storage and disposal of solid waste; (v) Disposal of radiological waste through manufacturer return and recycling programs; and (vi) Hazardous waste minimization activities. (NR12) Acquisition, installation, maintenance, operation, or evaluation of security equipment to screen for or detect dangerous or illegal individuals or materials at existing facilities or to enhance the physical security of existing critical assets. Examples include: (i) Low-level x-ray devices; (ii) Cameras and biometric devices; (iii) Passive inspection devices; (iv) Detection or security systems for explosive, biological, or chemical substances; (v) Access controls, screening devices, and traffic management systems; (vi) Motion detection systems; (vii) Impact resistant doors and gates; (viii) Diver and swimmer detection systems, except sonar; and (ix) Blast and shock impact-resistant systems for land-based and waterfront facilities. (NR13) Maintenance of facilities, equipment, and grounds. Examples include interior utility work, road maintenance, window washing, lawn mowing, trash collecting, facility cleaning, and snow removal. (NR14) Recreation and welfare activities (e.g., picnics and Family Day). (NR15) Training FBI personnel and persons external to the FBI using existing facilities and where the training occurs in accordance with applicable permitting requirements and other requirements for the protection of the environment. This exclusion does not apply to training that involves the use of live chemical, biological, radiological, or explosive agents, except when conducted at a location designed and constructed to accommodate those materials and their associated hazards. Examples include: (i) Administrative or classroom training; (ii) Tactical training, including training in explosives and incendiary devices, arson investigation and firefighting, and emergency preparedness and response; (iii) Chemical, biological, explosive, or hazardous material handling training; (iv) Vehicle, aircraft, and small boat operation training; (v) Small arms and less-than-lethal weapons training; (vi) Security specialties and terrorist response training; (vii) Crowd control training, including gas range training; (viii) Enforcement response, self-defense, and interdiction techniques training; and (ix) Fingerprinting and drug analysis training. (NR16) Projects, grants, cooperative agreements, contracts, or activities to design, develop, and conduct national, state, local, or international exercises to test the readiness of the nation to prevent or respond to a terrorist attack or a natural or manmade disaster where conducted in accordance with existing facility or land use designations. This exclusion does not apply to exercises that involve the use of live chemical, biological, radiological, nuclear, or explosive agents or devices (other than small devices such as practice grenades or flash bang devices used to simulate an attack during exercises), unless these exercises are conducted under the auspices of existing plans or permits that have undergone NEPA review. (d) List of REC Required (R) FBI CATEXs (R1) Reductions, realignments, or relocation of personnel, equipment, or mobile assets that result in changing the use of the space in such a way that could cause changes to environmental effects, but do not result in exceeding the infrastructure capacity outside of FBI-managed property. An example of exceeding the infrastructure capacity would be an increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase. (R2) Acquisition or use of space within an existing structure, by purchase, lease, or use agreement. This includes structures that are in the process of construction or were recently constructed, regardless of whether the existing structure was built to satisfy an FBI requirement and the proposed FBI use would not exceed the carrying capacity of the utilities and infrastructure for the use and access to the space. This also includes associated relocation of personnel, equipment, or assets into the acquired space. (R3) Transfer of administrative control over real property, including related personal property, between another Federal agency and the FBI that does not result in a change in the functional use of the property. (R4) New construction (e.g., facilities, roads, parking areas, trails, solar panels, and wind turbines) or improvement of land where all of the following conditions are met: (i) The site is in a developed or a previously disturbed area; (ii) The proposed use will not substantially increase the number of motor vehicles at the facility or in the area; (iii) The construction or improvement will not result in exceeding the infrastructure capacity outside of FBI-managed property (e.g., roads, sewer, water, and parking); (iv) The site and scale of construction or improvement are consistent with those of existing, adjacent, or nearby buildings; and (v) The structure and proposed use are compatible with applicable Federal, tribal, state, and local planning and zoning standards and consistent with Federally approved state coastal management programs. (R5) Renovation, addition, repair, alteration, and demolition projects affecting buildings, roads, airfields, grounds, equipment, and other facilities, including subsequent disposal of debris, which may be contaminated with hazardous materials such as PCBs, lead, or asbestos. Hazardous materials must be disposed of at approved sites in accordance with Federal, state, and local regulations. Examples include the following: (i) Realigning interior spaces of an existing building; (ii) Adding a small storage shed to an existing building; (iii) Retrofitting for energy conservation, including weatherization, installation of timers on hot water heaters, installation of energy efficient lighting, installation of low-flow plumbing fixtures, and installation of drip-irrigation systems; (iv) Installing a small antenna on an already existing antenna tower that does not cause the total height to exceed 200 feet and where the FCC's NEPA procedures allow for application of a CATEX; or (v) Closing and demolishing a building not eligible for listing under the National Register of Historic Places. (R6) Acquisition, installation, reconstruction, repair by replacement, and operation of utility (e.g., water, sewer, electrical), communication (e.g., data processing cable and similar electronic equipment), and security systems that use existing rights-of-way, easements, distribution systems, or facilities. (R7) Acquisition, installation, operation, and maintenance of permanent equipment, devices, or controls necessary to mitigate effects of FBI's missions on health and the environment. This CATEX is not intended to cover facility construction or related activities. Examples include: (i) Pollution prevention and pollution-control equipment required to meet [[Page 32693]] applicable Federal, tribal, state, or local requirements; (ii) Installation of fencing, including security fencing, that would not have the potential to significantly impede wildlife population movement (including migration) or surface water flow; (iii) Installation and operation of lighting devices; (iv) Noise-abatement measures, including construction of noise barriers, installation of noise control materials, or planting native trees or native vegetation for use as a noise abatement measure; and (v) Devices to protect human or animal life, such as raptor electrocution prevention devices, and fencing and grating to prevent accidental entry to hazardous or restricted areas. (R8) Non-routine procurement, use, storage, and disposal of non- hazardous goods and services in support of administrative, operational, or maintenance activities in accordance with executive orders and Federal procurement guidelines. (R9) Use of hazardous materials (including procurement, transportation, distribution, and storage of such materials) and reuse, recycling, and disposal of solid, medical, radiological, or hazardous waste in a manner that is consistent with all applicable laws, regulations, and policies, but uncharacteristic of routine FBI use, reuse, recycling, and disposal of hazardous materials and waste. Examples include: (i) Procurement of a new type of chemical or procurement of a larger quantity of a particular chemical than generally used by FBI; and (ii) Disposal of items that contain PCBs (e.g., carpets, lighting, caulk). (R10) Herbicide application and pest management, including registered pesticide application, in accordance with Federal, state, and local regulations. (R11) Natural resource management activities on FBI-managed property to aid in the maintenance or restoration of native flora and fauna, including site preparation and control of non-indigenous species, excluding the application of herbicides. 6. Environmental Assessment (EA) An EA is a concise public document for actions that do not meet the requirements for applying a CATEX, but for which it is unclear whether an EIS is required. An EA briefly provides evidence and analysis for determining whether to prepare an EIS or a Finding of No Significant Impact (FONSI), and facilitates preparation of an EIS when one is required. The requirements and contents of an EA are described in 40 CFR 1508.9. Significance of impacts will be determined based on the criteria outlined in 40 CFR 1508.27. The FBI will comment on other agencies' EAs when relevant to the FBI mission, or when the FBI has jurisdiction by law or relevant special expertise. (a) Examples of types of FBI actions that typically require an EA include the following: (1) Long-term plans for FBI-managed properties and facilities. (2) Proposed construction, land use, activity, or operation where it is uncertain whether the action will significantly affect environmentally sensitive areas. (3) New activities for which the impacts are not known with certainty, but where the impacts are not expected to cause significant environmental degradation. 7. Environmental Impact Statement (EIS) An EIS is a detailed, written statement Federal agencies must prepare for major Federal actions that will significantly affect the quality of the human environment, or when an EA concludes that the significance threshold of the impacts associated with a proposed action would be crossed. An EIS describes effects of the proposed action and any reasonable alternatives. A Notice of Intent (NOI) is published in the Federal Register as soon as practicable after a decision to prepare an EIS is made. The FBI may prepare an EIS without prior preparation of an EA. The format and content of an EIS are described in 40 CFR part 1502. (a) A Record of Decision (ROD) is prepared at the time a decision is made regarding a proposal that is analyzed and documented in an EIS. The ROD will state the decision, discuss the alternatives considered, and state whether all practicable means to avoid or minimize environmental harms have been adopted or, if not, why they were not adopted. Where applicable, the ROD will also describe and adopt a monitoring and enforcement plan for any mitigation. The FBI will comment on other agencies' EISs when relevant to the FBI mission, or where the FBI has jurisdiction by law or relevant special expertise. (b) Examples of types of actions that typically require an EIS include the following: (1) Proposed major construction or construction of facilities that would have a significant effect on wetlands, coastal zones, or other environmentally sensitive areas. (2) Change in area, scope, type, or frequency of operations or training that will result in significant environmental effects. (3) Actions where the effects of a project or operation on the human environment are likely to be highly scientifically uncertain, but are perceived to have potential for significant impacts. 8. Scoping Scoping may be used for all NEPA documents in order to streamline the NEPA process by identifying significant issues and narrowing the scope of the environmental review process. The FBI may seek agencies with specialized expertise or authority in environmental planning requirements that may be beneficial to FBI mission planning and encourage such agencies to be cooperating agencies (40 CFR 1501.6 and 1508.5). In cases where an EIS is prepared in response to a finding of significant impact following preparation of an EA, the EIS scoping process shall incorporate the results of the EA development process. 9. Public Involvement The FBI may use such means as newspaper announcements, electronic media, and public hearings to disseminate information to potentially interested or affected parties about NEPA actions, as appropriate. When preparing an EIS, and in certain cases an EA, the FBI will invite comment from affected Federal, tribal, state, and local agencies, and other interested persons in accordance with 40 CFR part 1503. 10. Mitigation (a) Mitigation measures, such as those described in 40 CFR 1508.20, can be used to offset environmental impacts associated with implementation of an action. If a FONSI or ROD is based on mitigation measures, all mitigation measures stipulated in the EA or EIS must be implemented as described in the FONSI or ROD. (b) Mitigation measures must be included as conditions in grants, permits, and relevant contract documents. Funding of actions shall be contingent on performance of mitigation measures, where such measures are identified in a FONSI or ROD. If mitigation is required, a mitigation monitoring plan must be developed prior to the initiation of the proposed action. To the extent practicable, the FBI will make available the progress or results of monitoring upon request by the public or cooperating or commenting agencies. 11. Programmatic, Tiered, and Supplemental NEPA Documents (a) Programmatic EAs or EISs may be prepared to cover broad actions, such as programs or plans (e.g., Master Plan EA). (b) Tiered EAs or EISs may be prepared to cover narrower actions that are a component to previously prepared Programmatic EAs or EISs as described in 40 CFR 1508.28. (c) Supplemental EAs or EISs shall be prepared when the FBI makes substantial changes to the proposed action that are relevant to environmental concerns; when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts (e.g., new study has revealed rare, threatened, and endangered species in the project vicinity); or when the FBI determines that the purposes of NEPA will be furthered by doing so. (1) Supplemental EAs may either be prepared by tracking changes in the original EA or by preparing a separate document that only discusses the changes in the project scope or new information and the associated changes with regard to impacts. The process concludes with a decision regarding whether to issue a revised FONSI (using one of the methods listed in section 9) or a decision to prepare an EIS. (2) Supplemental EISs are prepared in the same way as an EIS. If, however, a supplemental EIS is prepared within one year of filing the ROD for the original EIS, no new scoping process is required. The process concludes with a decision regarding whether to issue a revised ROD. Dated: April 13, 2016. Sally Q. Yates, Deputy Attorney General. [FR Doc. 2016-11945 Filed 5-23-16; 8:45 am] BILLING CODE 4410-02-P
![32688 Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules
$2,100,000. As required under rule 205– would not generally apply retroactively Bohnhoff, 935 Pennsylvania Ave. NW.,
3, both dollar amounts would take into to such contractual relationships, Room WB–460, Washington, DC 20535
account the effects of inflation by subject to the transition rules or by facsimile to 202–436–7248.
reference to historic and current levels incorporated in rule 205–3.27 FOR FURTHER INFORMATION CONTACT:
of the PCE Index. While the dollar By the Commission. Scott Bohnhoff, FBI Occupational Safety
amount of the assets-under-management Dated: May 18, 2016. and Environmental Programs (OSEP)
test would not change, because the Unit Chief; Email: Scott.Bohnhoff@
Brent J. Fields,
amount of the Commission’s inflation ic.fbi.gov; Telephone: (202) 436–7500.
adjustment calculation is smaller than Secretary.
[FR Doc. 2016–12167 Filed 5–23–16; 8:45 am] SUPPLEMENTARY INFORMATION:
the rounding amount specified under
rule 205–3, the dollar amount of the net BILLING CODE 8011–01–P Electronic Access and Filing
worth test would be adjusted as a result Electronic comments are preferred.
of the Commission’s inflation For comments sent via U.S. Postal
adjustment calculation effected DEPARTMENT OF JUSTICE Service, please do not submit duplicate
pursuant to the rule.24 electronic or facsimile comments. Please
We anticipate that future changes to Federal Bureau of Investigation
confine comments to the proposed rule.
the dollar amount tests that are issued
28 CFR Part 61 All submissions received must
by order will be reflected in technical
amendments to rule 205–3(d), which include the agency name (FBI) and
RIN 1110–AA32 docket number or RIN for this Federal
would be adopted after such order is
issued.25 Register document. The general policy
National Environmental Policy Act for comments and other submissions
B. Effective Date Procedures from members of the public is to make
We anticipate that, if we issue the AGENCY: Federal Bureau of these submissions available for public
order described above, the effective date Investigation, Department of Justice. viewing on the Internet at http://
will be 60 days following the order ACTION: Notice of proposed rule; request www.regulations.gov as they are
date.26 To the extent that contractual for public comment. received without change, including any
relationships are entered into prior to personal identifiers or contact
the order’s effective date, the dollar SUMMARY: The Department of Justice is information.
amount test adjustments in the order proposing to promulgate regulations
Explanation of Proposed Rule
establishing the Federal Bureau of
24 Specifically, rule 205–3(e) provides that the Investigation’s (FBI’s) National CEQ’s NEPA implementing
adjusted dollar amounts shall be computed by: (1) Environmental Policy Act (NEPA) regulations contained in 40 CFR parts
Dividing the year-end value of the PCE Index (or procedures. These proposed regulations 1500 through 1508 require each Federal
any successor index thereto) for the calendar year
preceding the calendar year in which the order is would establish a process for the FBI’s agency to adopt procedures (40 CFR
being issued (in this case, 2015), by the year-end implementation of NEPA, Executive 1507.3) to ensure that decisions are
value of the PCE Index (or successor) for the Order 11514, Executive Order 12114, made in accordance with the policies
calendar year 1997 (such quotient, the ‘‘Adjustment and purposes of NEPA (40 CFR 1505.1).
Percentage’’); (2) for the assets-under-management
and Council on Environmental Quality
test, multiplying $750,000 by the Adjustment (CEQ) and Department of Justice The Department has established such
Percentage and rounding the product to the nearest (Department) regulations addressing the policies and procedures at 28 CFR part
multiple of $100,000; and (3) for the net worth test, procedural provisions of NEPA. 61. The FBI NEPA Program has been
multiplying $1,500,000 by the Adjustment established to supplement the
Percentage and rounding the product to the nearest
Pursuant to CEQ regulations, the FBI is
multiple of $100,000.As of April 8, 2016, the end- soliciting comments on the proposed Department’s procedures and to ensure
of-year 2015 PCE Index was 109.819, and the end- FBI NEPA regulations from members of that environmental considerations are
of-year 1997 PCE Index was 79.657. Assets-under- the interested public. fully integrated into the FBI’s mission
management test calculation to adjust for the effects
of inflation: (109.819/79.657) × $750,000 = DATES: Written comments must be activities.
$1,033,986.34; $1,033,986.34 rounded to the nearest postmarked and electronic comments The FBI NEPA regulations are
multiple of $100,000 = $1,000,000. Net worth test must be submitted on or before July 25, intended to promote reduction of
calculation to adjust for the effects of inflation: paperwork by providing guidelines for
(109.819/79.657) × $1,500,000 = $2,067,972.68; 2016. Commenters should be aware that
$2,067,972.68 rounded to the nearest multiple of the electronic Federal Docket development of streamlined and
$100,000 = $2,100,000.The values of the PCE Index Management System will not accept focused NEPA documents and to reduce
are available from the Bureau of Economic comments after 11:59 p.m. Eastern Time delay by integrating the NEPA process
Analysis, a bureau of the United States Department into the early stages of planning. They
of Commerce. See http://www.bea.gov; see also on the last day of the comment period.
are also intended to promote
Bureau of Economic Analysis, Table 2.3.4., ‘‘Price ADDRESSES: Submit comments online at
Indexes for Personal Consumption Expenditures by transparency by ensuring that NEPA
http://www.regulations.gov. Submit
Major Type of Product,’’ available at http://www. documents are written in plain language
bea.gov/iTable/iTable.cfm?ReqID=9&step=1# written comments by addressing them
and follow a clear format so that they
reqid=9&step=1&isuri=1&903=64 (last visited April to FBI NEPA Comments, ATTN: Scott A.
8, 2016).
are easily understood by the public and
25 See May 2011 Release, supra note 13, at n.27 27 See rule 205–3(c)(1) (‘‘If a registered investment all parties involved in implementation
(noting that the Commission anticipated, when it adviser entered into a contract and satisfied the of the proposed action.
issued its notice of intent to issue an order revising conditions of this section that were in effect when The FBI NEPA regulations are not
mstockstill on DSK3G9T082PROD with PROPOSALS
the dollar amount thresholds of the assets-under- the contract was entered into, the adviser will be intended to serve as a comprehensive
management test and the net worth test, that ‘‘future considered to satisfy the conditions of this section;
changes to the dollar amount test that are issued by Provided, however, that if a natural person or
NEPA guide, but will serve as a
order, will be reflected in technical amendments to company who was not a party to the contract framework for the FBI NEPA Program.
rule 205–3’’). becomes a party (including an equity owner of a The FBI plans to apply its NEPA
26 When the Commission issued the 2011 Order private investment company advised by the regulations in conjunction with NEPA,
adjusting the dollar amount tests of rule 205–3 as adviser), the conditions of this section in effect at
described above, the 2011 Order’s effective date was that time will apply with regard to that person or
the CEQ regulations (40 CFR parts 1500
approximately 60 days following its issuance. See company.’’); see also May 2011 Release, supra note through 1508), the Department’s
supra note 14. 13, at section II.B.3. implementing regulations (28 CFR part
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![Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Proposed Rules 32693
applicable Federal, tribal, state, or local (3) New activities for which the impacts Federal, tribal, state, and local agencies, and
requirements; are not known with certainty, but where the other interested persons in accordance with
(ii) Installation of fencing, including impacts are not expected to cause significant 40 CFR part 1503.
security fencing, that would not have the environmental degradation.
potential to significantly impede wildlife 10. Mitigation
7. Environmental Impact Statement (EIS)
population movement (including migration) (a) Mitigation measures, such as those
or surface water flow; An EIS is a detailed, written statement
described in 40 CFR 1508.20, can be used to
(iii) Installation and operation of lighting Federal agencies must prepare for major
Federal actions that will significantly affect offset environmental impacts associated with
devices;
(iv) Noise-abatement measures, including the quality of the human environment, or implementation of an action. If a FONSI or
construction of noise barriers, installation of when an EA concludes that the significance ROD is based on mitigation measures, all
noise control materials, or planting native threshold of the impacts associated with a mitigation measures stipulated in the EA or
trees or native vegetation for use as a noise proposed action would be crossed. An EIS EIS must be implemented as described in the
abatement measure; and describes effects of the proposed action and FONSI or ROD.
(v) Devices to protect human or animal life, any reasonable alternatives. A Notice of (b) Mitigation measures must be included
such as raptor electrocution prevention Intent (NOI) is published in the Federal as conditions in grants, permits, and relevant
devices, and fencing and grating to prevent Register as soon as practicable after a contract documents. Funding of actions shall
accidental entry to hazardous or restricted decision to prepare an EIS is made. The FBI be contingent on performance of mitigation
areas. may prepare an EIS without prior preparation
measures, where such measures are
(R8) Non-routine procurement, use, of an EA. The format and content of an EIS
storage, and disposal of non-hazardous goods are described in 40 CFR part 1502. identified in a FONSI or ROD. If mitigation
and services in support of administrative, (a) A Record of Decision (ROD) is prepared is required, a mitigation monitoring plan
operational, or maintenance activities in at the time a decision is made regarding a must be developed prior to the initiation of
accordance with executive orders and proposal that is analyzed and documented in the proposed action. To the extent
Federal procurement guidelines. an EIS. The ROD will state the decision, practicable, the FBI will make available the
(R9) Use of hazardous materials (including discuss the alternatives considered, and state progress or results of monitoring upon
procurement, transportation, distribution, whether all practicable means to avoid or request by the public or cooperating or
and storage of such materials) and reuse, minimize environmental harms have been commenting agencies.
recycling, and disposal of solid, medical, adopted or, if not, why they were not
radiological, or hazardous waste in a manner adopted. Where applicable, the ROD will also 11. Programmatic, Tiered, and Supplemental
that is consistent with all applicable laws, describe and adopt a monitoring and NEPA Documents
regulations, and policies, but uncharacteristic enforcement plan for any mitigation. The FBI (a) Programmatic EAs or EISs may be
of routine FBI use, reuse, recycling, and will comment on other agencies’ EISs when prepared to cover broad actions, such as
disposal of hazardous materials and waste. relevant to the FBI mission, or where the FBI
programs or plans (e.g., Master Plan EA).
Examples include: has jurisdiction by law or relevant special
(i) Procurement of a new type of chemical expertise. (b) Tiered EAs or EISs may be prepared to
or procurement of a larger quantity of a (b) Examples of types of actions that cover narrower actions that are a component
particular chemical than generally used by typically require an EIS include the to previously prepared Programmatic EAs or
FBI; and following: EISs as described in 40 CFR 1508.28.
(ii) Disposal of items that contain PCBs (1) Proposed major construction or (c) Supplemental EAs or EISs shall be
(e.g., carpets, lighting, caulk). construction of facilities that would have a prepared when the FBI makes substantial
(R10) Herbicide application and pest significant effect on wetlands, coastal zones, changes to the proposed action that are
management, including registered pesticide or other environmentally sensitive areas. relevant to environmental concerns; when
application, in accordance with Federal, (2) Change in area, scope, type, or there are significant new circumstances or
state, and local regulations. frequency of operations or training that will information relevant to environmental
(R11) Natural resource management result in significant environmental effects. concerns and bearing on the proposed action
activities on FBI-managed property to aid in (3) Actions where the effects of a project or its impacts (e.g., new study has revealed
the maintenance or restoration of native flora or operation on the human environment are
and fauna, including site preparation and rare, threatened, and endangered species in
likely to be highly scientifically uncertain,
control of non-indigenous species, excluding but are perceived to have potential for the project vicinity); or when the FBI
the application of herbicides. significant impacts. determines that the purposes of NEPA will be
furthered by doing so.
6. Environmental Assessment (EA) 8. Scoping (1) Supplemental EAs may either be
An EA is a concise public document for Scoping may be used for all NEPA prepared by tracking changes in the original
actions that do not meet the requirements for documents in order to streamline the NEPA EA or by preparing a separate document that
applying a CATEX, but for which it is process by identifying significant issues and only discusses the changes in the project
unclear whether an EIS is required. An EA narrowing the scope of the environmental scope or new information and the associated
briefly provides evidence and analysis for review process. The FBI may seek agencies changes with regard to impacts. The process
determining whether to prepare an EIS or a with specialized expertise or authority in concludes with a decision regarding whether
Finding of No Significant Impact (FONSI), environmental planning requirements that
and facilitates preparation of an EIS when to issue a revised FONSI (using one of the
may be beneficial to FBI mission planning
one is required. The requirements and and encourage such agencies to be methods listed in section 9) or a decision to
contents of an EA are described in 40 CFR cooperating agencies (40 CFR 1501.6 and prepare an EIS.
1508.9. Significance of impacts will be 1508.5). In cases where an EIS is prepared in (2) Supplemental EISs are prepared in the
determined based on the criteria outlined in response to a finding of significant impact same way as an EIS. If, however, a
40 CFR 1508.27. The FBI will comment on following preparation of an EA, the EIS supplemental EIS is prepared within one
other agencies’ EAs when relevant to the FBI scoping process shall incorporate the results year of filing the ROD for the original EIS, no
mission, or when the FBI has jurisdiction by of the EA development process. new scoping process is required. The process
mstockstill on DSK3G9T082PROD with PROPOSALS
law or relevant special expertise. concludes with a decision regarding whether
(a) Examples of types of FBI actions that 9. Public Involvement
to issue a revised ROD.
typically require an EA include the following: The FBI may use such means as newspaper
(1) Long-term plans for FBI-managed announcements, electronic media, and public Dated: April 13, 2016.
properties and facilities. hearings to disseminate information to Sally Q. Yates,
(2) Proposed construction, land use, potentially interested or affected parties Deputy Attorney General.
activity, or operation where it is uncertain about NEPA actions, as appropriate. When
whether the action will significantly affect preparing an EIS, and in certain cases an EA, [FR Doc. 2016–11945 Filed 5–23–16; 8:45 am]
environmentally sensitive areas. the FBI will invite comment from affected BILLING CODE 4410–02–P
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Document Created: 2016-05-24 05:21:47
Document Modified: 2016-05-24 05:21:47
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rule; request for public comment. | |
| Dates | Written comments must be postmarked and electronic comments must be submitted on or before July 25, 2016. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period. | |
| Contact | Scott Bohnhoff, FBI Occupational Safety and Environmental Programs (OSEP) Unit Chief; Email: [email protected]; Telephone: (202) 436-7500. | |
| FR Citation | 81 FR 32688 | |
| RIN Number | 1110-AA32 |
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