[Federal Register Volume 74, Number 86 (Wednesday, May 6, 2009)]
[Notices]
[Pages 21011-21013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10398]


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NATIONAL ENDOWMENT FOR THE ARTS

RIN 3135-AA23


Protocol for Categorical Exclusions Supplementing the Council on 
Environmental Quality Regulations Implementing the Procedural 
Provisions of the National Environmental Policy Act for Certain 
American Recovery and Reinvestment Act Projects

AGENCY: National Endowment for the Arts.

ACTION: Notice of final action and request for comments.

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SUMMARY: The National Endowment for the Arts has established a protocol 
that provides for categorical exclusions under the National 
Environmental Policy Act (NEPA) for projects funded under the American 
Recovery and Reinvestment Act (ARRA) that focus on the preservation of 
jobs (salary support, full or partial, for one or more positions, 
including support for contracted positions) in the nonprofit arts 
sector that are threatened by declines in philanthropic and other 
support during the current economic downturn. The proposed changes 
would better align NEA implementation of the CEQ NEPA

[[Page 21012]]

regulations by providing for the efficient and timely environmental 
review of specific ARRA job preservation actions.

DATES: Submit comments on or before June 5, 2009. This Protocol is 
immediately effective upon publication. All comments will be reviewed 
and considered to determine whether there is a need for potential 
amendment to the protocol.

ADDRESSES: Karen Elias, Acting General Counsel, National Endowment for 
the Arts, 1100 Pennsylvania Avenue, NW., Room 518, Washington, DC 
20506; telefax at (202)-682-5572; TDD at (202)-682-5496; or by 
electronic mail at [email protected].

FOR FURTHER INFORMATION CONTACT: Karen Elias, (202)-682-5418.

SUPPLEMENTARY INFORMATION: The NEA follows the regulations of the 
Council on Environmental Quality (CEQ) for complying with NEPA. 
Projects that focus on preservation of jobs in the nonprofit arts 
sector and are to be awarded ARRA funds are one type of grant 
administered by the NEA. The NEA's statutory authority to make grants 
is at 20 U.S.C. 951, et seq. and includes competitive grants for a 
variety of projects in various arts forms. The grants provided for 
under the American Recovery and Reinvestment Act (ARRA) are a 
particular category of activity that has been reviewed and determined 
not to have individual or cumulative significant effects on the human 
environment and therefore are the appropriate subject of a categorical 
exclusion under NEPA. These grants maintain the jobs and contract 
support that was in place prior to the economic downturn and do not 
provide for any new construction or activities with potential 
environmental effects. The protocol provides for a review to determine 
whether there are extraordinary circumstances and, in the absence of 
such circumstances, provide for the grant to proceed without 
preparation of an Environmental Assessment (EA) or Environmental Impact 
Study (EIS) under NEPA.
    The NEA plans to publish proposed NEPA regulations later this year 
and the protocol for the categorical exclusion of NEA action on ARRA 
grant proposals will be included in those proposed NEA NEPA 
regulations.
    Regulatory Ceritifications:

Executive Order 12866

    This Protocol has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review.'' The Office 
of Management and Budget has determined that this Protocol is not a 
``significant regulatory action'' under Executive Order 12866; and 
accordingly, this Protocol has not been reviewed by the Office of 
Management and Budget. This Protocol affects NEA internal procedures. 
Whatever costs that may result from this Protocol should be outweighed 
by the reduction in delay and excessive paperwork from these 
procedures.

Executive Order 13121

    This Protocol only affects the internal procedures of the NEA and 
accordingly, will not have substantial direct effects on the States, 
relationships between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, in accordance with Executive Order 13132, it is 
determined that this Protocol will not have sufficient federalism 
implications to warrant preparation of a Federalism Assessment.

Executive Order 12988

    This Protocol meets the applicable standards set forth in section 
3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Acting Chairman of the NEA, in accordance with the Regulatory 
Flexibility Act [5 U.S.C. 605(b)], has reviewed this Protocol and 
approved it. Because this Protocol only affects the internal procedures 
of the NEA, it will not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This Protocol will not result in an expenditure of $100,000,000 or 
more in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector, nor will it significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This Protocol is not a major rule as defined in section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This 
Protocol will not result in an annual effect on the economy of 
$100,000,000 or more, a major increase in costs or prices, significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Environmental Impact

    This Protocol supplements CEQ regulations and provides guidance to 
NEA employees regarding procedural requirements for the application of 
NEPA provisions to ARRA-funded grants. The 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.
    For the reasons set out in the preamble, the National Endowment for 
the Arts establishes the following Protocol:

Protocol for Categorical Exclusion of Recovery Projects

    Purpose: Establishment of National Environmental Policy Act (NEPA) 
Categorical Exclusions for National Endowment for the Arts American 
Recovery and Reinvestment Act (ARRA) Grants.
    Policy: The National Endowment for the Arts follows the regulations 
of the Council on Environmental Quality (CEQ) for complying with NEPA. 
Pursuant to these regulations, NEA establishes the following 
categorical exclusion for projects that focus on the preservation of 
jobs (salary support, full or partial, for one or more positions, 
including support for contracted positions) in the nonprofit arts 
sector that are threatened by declines in philanthropic and other 
support during the current economic downturn. Such ARRA grants are one 
type of grant administered by the NEA. The NEA's statutory authority to 
make grants is at 20 U.S.C. 951, et seq., and includes competitive 
grants for a variety of projects in various art forms. Awards can be 
for activities such as performing arts, arts education, arts touring 
projects (dance, theater, musical theater, music and opera), museum and 
visual arts exhibitions. Outdoor projects may include short-term arts 
or music festivals, redesigning public parks and other public spaces. 
The ARRA grants are a particular category of activity that has been 
determined not to have individual or cumulative significant effects on 
the human environment, and absent extraordinary circumstances 
(attached), are excluded from preparation of an Environmental

[[Page 21013]]

Assessment (EA) or Environmental Impact Study (EIS) under NEPA. The 
extraordinary circumstances are considered prior to grants approval.
    Applicability: This protocol applies to all grants awarded with 
ARRA funds by the National Endowment for the Arts. The protocol will be 
effective immediately and we will consider comments submitted on the 
protocol when developing the NEA NEPA regulation that will include this 
categorical exclusion.

Responsibilities

    The Chairman of the NEA has the final authority over the NEA's 
responsibilities over the NEPA process and has approved this protocol 
and will approve the NEA NEPA regulation.
    The Senior Deputy Chairman is the Senior Environmental Advisor to 
the Chairman and is responsible for NEPA policy, guidance, and 
oversight. The Senior Deputy Chairman will oversee the application of 
the categorical exclusion and development of the NEA NEPA regulation. 
In the absence of the Senior Deputy Chairman, the General Counsel will 
oversee the application of the categorical exclusion and development of 
the NEA NEPA regulation.
    The General Counsel is responsible for providing legal guidance as 
to NEPA, including correspondence from CEQ and other agencies 
concerning matters related to NEPA.

Extraordinary Circumstances for ARRA Grant Categorical Exclusion

    Any of the following circumstances preclude the use of this CE:
    (a) Reasonable likelihood of significant effects on public health, 
safety, or the environment.
    (b) Reasonable likelihood of significant environmental effects 
(direct, indirect, and cumulative).
    (c) Imposition of uncertain or unique environmental risks.
    (d) Greater scope or size than is normal for this category of 
action.

     Dated: April 30, 2009.
Kathy Plowitz-Worden,
Panel Coordinator, Panel Operations, National Endowment for the Arts.
[FR Doc. E9-10398 Filed 5-5-09; 8:45 am]
BILLING CODE 7537-01-P