74 Fed. Reg. 32876 (Jul. 9, 2009)

National Environmental Policy Act-Categorical Exclusions covering the Broadband Technology Opportunity Program (BTOP)

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Federal RegisterJul 9, 2009

74 Fed. Reg. 32876 (Jul. 9, 2009)

AGENCY:

U.S. Department of Commerce, National Telecommunications and Information Administration.

ACTION:

Notice and request for comments.

SUMMARY:

The National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce (DOC) is adopting the following Categorical Exclusions (CEs) covering the Broadband Technology Opportunity Program (BTOP). The CEs would better align NTIA implementation of the Council for Environmental Quality (CEQ) National Environmental Policy Act regulations by providing for the efficient and timely environmental review of specific American Recovery and Reinvestment Act (ARRA) job preservation actions for BTOP. Although NTIA adopts these CE's as of the date of this notice, NTIA welcomes comments from the public on the appropriateness or scope of the CE's, and will consider whether any CE's should be revised based on comments received.

DATES:

This Notice is immediately effective upon publication. All comments will be reviewed and considered to determine whether there is a need for potential amendment to the CEs. Comments on the list of categorical exclusions must be received by August 10, 2009 to ensure consideration prior to implementation of the program. Late comments will be considered to the extent practicable.

ADDRESSES:

All comments should be addressed to Office of Program Planning and Integration, National Oceanic and Atmospheric Administration, Attn.: Steve Kokkinakis, SSMC3—Room 15723, 1315 East-West Highway, Silver Spring, Maryland 20910. Comments may be sent by mail or hand-delivered to the above-listed address Monday—Friday between the hours of 9 a.m. and 4:30 p.m. Comments may also be sent by electronic mail to the following Internet address: Strategic.planning@noaa.gov.

The Administrative Record for the NTIA Broadband Technology Opportunity Program for the categorical exclusions is available at: http://www.nepa.noaa.gov/procedures.html under “NTIA Broadband Technology Opportunity Program Categorical Exclusions and Administrative Record”. Written requests for a hard copy of the “NTIA Broadband Technology Opportunity Program Categorical Exclusions and Administrative Record” should be submitted to: Steve Kokkinakis, National Oceanic and Atmospheric Administration, Office of Program Planning & Integration, SSMC3, Room 15723, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

For further information contact: Steve Kokkinakis, National Oceanic and Atmospheric Administration, Office of Program Planning & Integration, SSMC3, Room 15723, 1315 East-West Highway, Silver Spring, MD 20910, phone: 301-713-1622 x189.

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act (NEPA)

NEPA requires that Federal agencies prepare environmental impact statements for major Federal actions that may “significantly affect the quality of the human environment.” NEPA requirements apply to any federal project, decision, or action, including grants that might have an impact on the quality of the human environment. NEPA also established CEQ to provide guidance to federal agencies and to issue regulations implementing the procedural provisions of NEPA. Among other considerations, the CEQ regulations require Federal agencies to adopt their own implementing procedures to supplement the CEQ regulations, and to establish and use “categorical exclusions” to define categories of actions that do not individually or cumulatively have a significant effect on the human environment. These particular actions, therefore, do not require preparation of an environmental assessment or environmental impact statement as required by NEPA.

On May 26, 2008, the Department of Commerce published a notice in the Federal Register that solicited public comments on Department-wide CEs (74 FR 24782). The public comment period ended on June 15, 2009. Some of the CE's outlined in that notice address some aspects of BTOP, however, due to the similarity in project type, it was determined after consultation with the CEQ that the existing NEPA requirements of the US Department of Agriculture, Rural Utilities Services' (RUS) Telecommunication Program would serve as a better template for BTOP and the RUS Broadband Initiatives Program (BIP). Furthermore, the similarities between the two programs suggested that an alignment of the requirements documents and applicable CEs would streamline the application process and reduce confusion between similar applicants and future BTOP decisions.

Accordingly, NTIA in consultation with CEQ determined that it is in the best interest of the public to adopt the CEs effective immediately to ensure the efficient and timely environmental review of the BTOP ARRA job preservation actions. This notice supplements CEQ regulations and provides guidance to NTIA employees regarding procedural requirements for the application of NEPA provisions to the ARRA-funded BTOP grants.

II. Broadband Technology Opportunity Program (BTOP)

The American Recovery and Reinvestment Act of 2009, Public Law 111-5, (ARRA) authorized $4.37B for BTOP to accelerate broadband deployment to unserved and underserved areas, of which not less than $250M shall be available to increase sustained broadband adoption, not less than $200M to upgrade technology and capacity at public computing centers. Also, up to $350M is provided to develop and maintain a broadband inventory map of current U.S. broadband deployment. BTOP grants will provide funding to: (1) Acquire equipment, hardware and software, networking capability, and digital network technology for broadband services; (2) ensure access to broadband service by community organizations; (3) facilitate access to broadband service by low-income, aged and other vulnerable populations in order to provide educational and employment opportunities; and (4) construct and deploy broadband service related facilities and infrastructure.

Both NTIA and RUS will be funding similar projects entailing the construction and expansion of telecommunications infrastructure as described below:

Buried Plant/Facilities: The construction of buried outside plant facilities generally consists of plowing or trenching cable at a depth of approximately 36″ to 48″ alongside the road usually in a utility corridor or within public road rights-of-way.
Aerial Plant/Facilities: The construction of aerial facilities is either done by installing new poles and hanging cables on it on public rights-of-way or by installing cables using existing poles lines from a third party.
Buildings: Building construction generally consists of installing small pre-fabricated buildings that are used for housing electronic equipment. These buildings are usually placed on concrete pads and generally require very minimal disturbance of the land. On extremely rare occasions, funds are also used for constructing a headquarters and/or warehouse building. The amount of land disturbance resulting from this type of construction can vary depending on the size of the proposed building.
Towers: Tower construction is typically done by installing a concrete foundation and building the tower on it. The heights of the towers vary from 120 feet to 400 feet.

Due to the similarity in project type, it was determined after consultation with the CEQ that the NEPA program requirements for BTOP should align with the requirements of the RUS' Telecommunication Program and BIP. For decades, RUS has financed the installation of hundreds of telecommunication systems, including broadband systems across the United States. As a result, RUS has an understanding of the potential environmental impacts from installation of such systems on the environment in a variety of contexts. Furthermore, the similarities between the two programs suggest that an alignment of the requirements documents and applicable CEs would streamline the application process and reduce confusion between similar applicants.

Pursuant to CEQ's regulations (40 CFR 1507.3) RUS codified its environmental policies and procedures in 7 CFR 1794, Environmental Policies and Procedures. These regulations supplement the CEQ procedures and classify agency actions into classes of action, i.e., Categorical Exclusions, Environmental Assessments, and Environmental Impact Statements. Section 1794.3 states that “[t]he provisions of this part apply to actions by RUS including the approval of financial assistance pursuant to the Electric, Telecommunications, and Water and Waste Programs * * *.” RUS' and NTIA's federal action is providing financial assistance for BIP and BTOP respectively. Therefore, pursuant to the regulations, prior to the approval of financial assistance, NTIA/RUS must complete the environmental review process established by NEPA, the CEQ procedures and the agency's environmental policies and procedures.

III. Development Process used to Establish BTOP CEs

The list of NTIA BTOP CEs was compiled through an inter-agency effort that included participation from CEQ, RUS, NTIA, DOC's Energy, Safety and Environment Division and the Office of General Counsel, and the NEPA Coordinator of the National Oceanic and Atmospheric Administration. Representatives from these organizations comprised the review panel responsible for determining appropriate CEs for the BTOP program. In light of the time constraints placed on ARRA project funding and the need to establish associated CEs as quickly as possible, it was determined that only CEs that are supported by an adequate Administrative Record would be included in this list. In some cases, Administrative Records have been incorporated from Agencies other than DOC. Also, in those cases where there is a CE developed by another agency that could apply to BTOP, that CE has been included in the list as written with no modification to the text. The CEs have been approved by the DOC Office of General Counsel and the designated Senior Agency Official for NEPA.

Each CE was reviewed and deliberated in concept, coverage, applicability, and wording. The review panel carefully examined the portion of the administrative record associated with each CE to ensure that the exclusion is consistent with the goal of balancing increased administrative efficiency with avoidance of misinterpretations and misapplications of exclusionary language that could lead to non-compliance with NEPA requirements.

The review panel noted that RUS has CE activities that are sufficiently descriptive as to establish for the review panel that those activities were similar in nature, scope, and impact on the human environment as those for BTOP. The NTIA administrative record includes RUS determinations that the potential for environmental impacts of the activities covered by these CEs and based on the agency's experience with these types of activities will not individually or cumulatively create a significant impact on the environment, and therefore do not require additional NEPA analysis and documentation unless extraordinary circumstances exist.

In addition, the review panel recognized that all Federal agencies, with very few exceptions, must meet the same requirements to protect the environment. The review panel determined from their experience in or on behalf of other Federal agencies that the characteristics of the activities performed by BTOP were no different than those performed by RUS. Due to the different review processes, BTOP may require more extensive information from the applicant in the application package. The review panel also determined that RUS' extensive history of granting loans under these types of projects have adequately demonstrated that there are no significant impacts on the human environment.

The panel's conclusions were further supported by the determinations made by other Federal agencies that have established CEs for activities similar in nature, scope and impact to those contemplated for BTOP. The review panel determined from their experience in or on behalf of other Federal agencies that the characteristics of the activities proposed under BTOP were no different than those performed by other Federal agencies. Having determined that each CE met these objectives, the review panel ultimately concluded that the actions contemplated by these exclusions encompassed activities have no inherent potential for an individual or cumulative significant impact on the human environment.

Notwithstanding these conclusions, the review panel noted that all projects involving a major federal action will be subject to evaluation by the joint BTOP/BIP NEPA Environmental Questionnaire. Any project that receives a “YES” answer in any category is not permitted to utilize the CE without further consultation with BTOP/RUS and additional NEPA documentation may be required to prepare an Environmental Assessment or an Environmental Impact Statement. Moreover, the National Historic Preservation Act requirements, if appropriate, still apply to all projects. The use of these CEs does not constitute a release from Section 106 consultation requirements.

IV. BTOP Categorical Exclusions

A. General administrative/ministerial actions. Certain types of actions undertaken by BTOP will not normally require the completion of the BTOP/BIP NEPA Environmental Questionnaire (EQ). These categorically excluded proposals are:

A.1: The issuance of bulletins and information publications that do not concern environmental matters or substantial facility design, construction, or maintenance practices.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions and Environmental Assessments from the U.S. Department of Agriculture, U.S. Department of Homeland Security, Federal Emergency Management Agency, U.S. Coast Guard, and the U.S. Air Force.

A.2: Procurement activities related to the operation of BTOP.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified categorical exclusions from U.S. Department of Agriculture, U.S. Department of Homeland Security, Federal Emergency Management Agency, U.S. Coast Guard, U.S. Air Force, U.S. Navy, General Services Administration, and the U.S. Department of Interior.

A.3: Personnel and Administrative Actions.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, U.S. Coast Guard, U.S. Department of the Interior, U.S. Army and the U.S. Air Force.

A.4: Purchase of existing facilities or a portion thereof where use or operation will remain unchanged.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, and The General Services Administration.

A.5: Internal modifications or equipment additions (e.g., computer facilities, relocating interior walls) to structures or buildings.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, U.S. Department of Homeland Security, and the Federal Emergency Management Agency.

B. Broadband Activities. Applications for financial assistance for the types of proposed actions covered in this section require the submission of an EQ. Applicants shall sufficiently identify all proposed actions so their proper classification can be determined. Detailed descriptions shall be provided for each proposal noted in this section. BTOP may require additional information in addition to a description of what is being proposed, to ensure that proposals are properly classified. Proposed actions within this classification are:

B.1: Construction of buried and aerial telecommunications lines, cables, and related facilities.

B.2: Construction of microwave facilities involving no more than five acres (2 hectares) of physical disturbance at any single site.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions and Findings of No Significant Impact on Environmental Assessments from the U.S. Department of Agriculture, the National Telecommunications and Information Administration, and the U.S. Department of Energy.

B.3: Construction of cooperative or company headquarters, maintenance facilities, or other buildings involving no more than 10 acres (4 hectares) of physical disturbance or fenced property.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, the review panel identified the legacy categorical exclusions and Findings of No Significant Impact on Environmental Assessments from the U.S. Department of Agriculture, the U.S. Coast Guard, The U.S. Navy, the Economic Development Administration, and the National Oceanic and Atmospheric Administration.

B.4: Changes to existing transmission lines that involve less than 20 percent pole replacement, or the complete rebuilding of existing distribution lines within the same right of way. Changes to existing transmission lines that require 20 percent or greater pole replacement will be considered the same as new construction.

B.5: Changes or additions to existing substations, switching stations, telecommunications switching or multiplexing centers, or external changes to buildings or small structures requiring one acre (0.4 hectare) or more but no more than five acres (2 hectares) of new physically disturbed land or fenced property.

This categorical exclusion is supported by a long-standing categorical exclusion and administrative record. In particular, the review panel identified the legacy categorical exclusions from the U.S. Department of Agriculture, Rural Utilities Services. Based upon the extensive history of RUS application of these Categorical Exclusions and the lack of extraordinary circumstances associated with their application, this legacy Categorical Exclusion is determined to be applicable to BTOP projects.

B.6: Construction of substations, switching stations, or telecommunications switching or multiplexing centers requiring no more than five acres (2 hectares) of new physically disturbed land or fenced property.

B.7: Changes or additions to microwave sites, substations, switching stations, telecommunications switching or multiplexing centers, buildings, or small structures requiring new physical disturbance or fencing of less than one acre (0.4 hectare).

This categorical exclusion is supported by a long-standing categorical exclusion and administrative record from the U.S. Department of Agriculture, Rural Utilities Services Based upon the extensive history of RUS application of these Categorical Exclusions and the lack of extraordinary circumstances associated with their application, these legacy Categorical Exclusions are determined to be applicable to BTOP projects and appropriate justification for this Categorical Exclusion.

B.8: Ordinary maintenance or replacement of equipment or small structures (e.g. line support structures, line transformers, microwave facilities, telecommunications remote switching and multiplexing sites).

B.9: The construction of telecommunications facilities within the fenced area of an existing substation, switching station, or within the boundaries of an existing electric generating facility site.

B.10: Testing or monitoring work (e.g., soil or rock core sampling, monitoring wells, air monitoring).

B.11: Studies and engineering undertaken to define proposed actions or alternatives sufficiently so that environmental effects can be assessed.

B.12: Rebuilding of power lines or telecommunications cables where road or highway reconstruction requires the applicant to relocate the lines either within or adjacent to the new road or highway easement or right-of-way.

B.13: Phase or voltage conversions, reconductoring or upgrading of existing electric distribution lines, or telecommunication facilities.

B.14: Construction of standby diesel electric generators (one megawatt or less total capacity) and associated facilities, for the primary purpose of providing emergency power, at an existing applicant headquarters or district office, telecommunications switching or multiplexing site, or at an industrial, commercial or agricultural facility served by the applicant.

This categorical exclusion is supported by long-standing categorical exclusion and administrative record from the U.S. Department of Agriculture Rural Utilities Services. Based upon the extensive history of RUS application of these Categorical Exclusions and the lack of extraordinary circumstances associated with their application, this legacy Categorical Exclusion is determined to be applicable to BTOP projects.

The public is invited to submit comments on both the NTIA Broadband Technology Opportunity Program Categorical Exclusions and Administrative Record. See the ADDRESSES for instructions on submitting comments. The Administrative Record for the NTIA BTOP CEs is available at http://www.nepa.noaa.gov/procedures.html under “NTIA Broadband Technology Opportunity Program Categorical Exclusions and Administrative Record.” Hard copies may be obtained by contacting Steve Kokkinakis, as provided above.

Paperwork Reduction Act

This notice does not contain collection-of-information requirements subject to the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Notwithstanding any other provision of law, no person is required to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

A Paperwork package for the associated “BTOP/BIP NEPA Environmental Questionnaire” referenced in Section IV of the Supplementary Information has been submitted to the Office of Management and Budget (OMB) for review and approval. A Notice of Action in the Federal Register at the conclusion of OMB's review of the information collection.

Environmental Impact

This rule supplements CEQ regulations and Department of Commerce NEPA procedures and provides guidance to NTIA employees regarding procedural requirements for the application of NEPA provisions to BTOP decisions including grants and funding applicant actions. CEQ does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3

Dated: June 23, 2009.

Paul N. Doremus,

NOAA NEPA Coordinator, Office of Program Planning and Integration.

[FR Doc. E9-16151 Filed 7-8-09; 8:45 am]

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