13 October 2009
[Federal Register: October 13, 2009 (Volume 74, Number 196)]
[Notices]
[Page 52456-52459]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13oc09-35]
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DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
[Docket No. 0906221081-91339-02]
RIN 0648-XA10
National Environmental Policy Act--Categorical Exclusions
covering the Broadband Technology Opportunities Program (BTOP)
AGENCY: National Telecommunications and Information Administration,
Commerce.
ACTION: Notice.
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SUMMARY: The National Telecommunications and Information Administration
(NTIA), U.S. Department of Commerce (DOC) publishes these Categorical
Exclusions (CEs) of actions that the agency has determined do not
individually or cumulatively have a significant effect on the human
environment and thus, should be categorically excluded from the
requirement to prepare an environmental assessment or environmental
impact statement under the National Environmental Policy Act. These CEs
are intended to cover only the Broadband Technology Opportunities
Program (BTOP).
DATES: This notice is implemented October 13, 2009.
ADDRESSES: This notice and the Administrative Record for the NTIA
Broadband Technology Opportunities Program categorical exclusions are
available at: http://www.nepa.noaa.gov/procedures.html under ``NTIA
Broadband Technology Opportunities Program Categorical Exclusions and
Administrative Record''. Written requests for a hard copy of the ``NTIA
Broadband Technology Opportunities 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: 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
[[Page 52457]]
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 the Council on Environmental Quality (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, 2009, the Department of Commerce published a notice in
the Federal Register requesting comments on proposed Department-wide
CEs (74 FR 24782). On July 10, 2009, the Department of Commerce
published a notice in the Federal Register of final Department-wide CEs
(74 FR 33204).
Although some of the CE's outlined in the DOC-wide CE notice are
applicable to BTOP, it was determined in consultation with CEQ that the
existing NEPA requirements and the CEs of the U.S. Department of
Agriculture, Rural Utilities Services' (RUS) Telecommunication Program
would serve as a better template for BTOP and the RUS Broadband
Initiatives Program (BIP). Therefore, it was determined that
similarities between the two programs suggested that an alignment of
the requirements documents and applicable CEs would streamline the
application process and reduce confusion for applicants and future BTOP
decisions.
Accordingly, NTIA published a notice in the Federal Register on
July 9, 2009 of BTOP-specific CEs (74 FR 32876) and requested comments
from the public on the appropriateness and scope of the CEs. The public
comment period ended on August 10, 2009. NTIA received three comments
representing one private citizen and two organizations. NTIA fully
considered all of the comments and provides the responses in the
Comments and Agency Response section below.
II. Comments and Agency Responses
Comment 1
The National Audubon Society (NAS) expressed concern that the
proposed categorical exclusion for facilities would allow the
construction of communication towers without appropriate environmental
review, thus ``unnecessarily sacrificing the safety of avian wildlife,
their habitats, and the environment.'' The NAS commented that ``the
proposed categorical exclusions for BTOP projects include exclusions
for guyed towers and towers up to 400 feet in height with no findings
regarding their individual or cumulative impacts.'' The NAS commented
that the administrative record does not support the CE for towers.
Agency Response
The list of BTOP CEs published on July 9, 2009 (74 FR 32876) did
not include a specific CE for communication towers. The language that
the NAS quotes in its comment is from the ``Background'' section of the
document and was a general statement about the types of projects BTOP/
BIP might fund. NTIA never intended the statement to be used to justify
the use of a CE for these types of communication towers.
BTOP, however, does have an option for utilizing a CE for certain
specific communications towers. The Department of Commerce published on
July 10, 2009 (74 FR 33204) a final list of CEs available for use by
all DOC Operating Units. That list included a CE for communication
towers with specific limitations on tower height and guy wires: ``A-4
Siting/construction/operation of microwave/radio communication towers
less than 200 feet in height without guy wires on previously disturbed
ground.'' This CE did not receive a single public comment from the
Federal Register notice on draft CEs published for comment on May 26,
2009. Accordingly, NTIA would only issue a CE for a tower less than 200
feet in height without guy wires on previously disturbed ground. Any
NTIA BTOP project that proposes to construct a tower greater than 200
feet in height would require additional environmental documentation,
which includes the preparation of an Environmental Assessment or an
Environmental Impact Statement. References to the administrative record
for CEs for towers less than 200 feet without guy wires were included
in the July 10, 2009 notice and are not repeated here.
Comment 2
The Kodiak Kenai Cable Company commented that NTIA should consider
expanding Categorical Exclusion B.1, which covers ``construction of
buried and aerial telecommunications lines, cables, and related
facilities'' to include submarine cables. The commenter noted that many
underserved areas in Alaska are on remote islands where the only
practical means of providing broadband access is with submarine cables.
According to the commenter, the Army Corps of Engineers (COE) conducted
an environmental assessment and issued a finding of no significant
impact for a Nationwide Permit (NWP 12) involving ``the construction,
maintenance, repair, and removal of utility lines and associated
facilities in waters of the U.S.'', which are similar in nature to
projects involving submarine cables.
Agency Response
At this time, NTIA does not have the necessary administrative
record to add a CE for submarine cables, however, NTIA will consider
the background information provided by the commenter regarding the COE
NWP 12 in developing any future amendments to the BTOP CEs.
Comment 3
NTIA should consider a CE for Adirondack Park. Current siting
procedures make it difficult to obtain broadband access and wireless
communication services in rural areas of upstate New York, thus
hindering the ability to communicate with residents and emergency
management systems.
Agency Response
Categorical exclusions are intended to exempt certain activities,
rather than specific locations, from further environmental review.
Categorical exclusions apply to a range of activities that have been
shown, individually or cumulatively, not to create significant
environmental impacts on the human or natural environment. In addition,
in order to qualify for a CE, a project must comply with all state and
local laws and regulations. It is incumbent upon the applicant to
demonstrate that the project qualifies for a CE. Thus, if Adirondack
Park has certain restrictions on siting of broadband or wireless
services, then the applicant would need to address those concerns
before the project would qualify for a CE and receive funding.
III. 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
[[Page 52458]]
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 the 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 the 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. NTIA 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. 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
the Interior, and the U.S. Department of Energy.
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. 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
and the U.S. Department of Energy.
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. 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 and the U.S. Department of Energy.
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 Service. 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). This categorical exclusion is supported by long-standing
categorical exclusions and
[[Page 52459]]
administrative records. In particular, the review panel identified the
legacy categorical exclusions from the U.S. Department of Agriculture
and the U.S. Department of Energy.
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. 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 and the U.S. Department of Energy.
B.10: Testing or monitoring work (e.g., soil or rock core sampling,
monitoring wells, air monitoring). 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 and the
U.S. Department of Energy.
B.11: Studies and engineering undertaken to define proposed actions
or alternatives sufficiently so that environmental effects can be
assessed. 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 and the U.S. Department of Energy.
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. 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 and the U.S. Department of Energy.
B.13: Phase or voltage conversions, reconductoring or upgrading of
existing electric distribution lines, or telecommunication facilities.
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 and the U.S. Department of Energy.
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.
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.
Environmental Impact
These procedures supplement 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: October 5, 2009.
Paul N. Doremus,
NOAA NEPA Coordinator, Office of Program Planning and Integration.
[FR Doc. E9-24606 Filed 10-9-09; 8:45 am]
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