[Federal Register Volume 74, Number 99 (Tuesday, May 26, 2009)]
[Notices]
[Pages 24782-24785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12295]


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DEPARTMENT OF COMMERCE

[Docket No. 090520919-9919-01]
RIN 0648-XP46


National Environmental Policy Act--Proposed Categorical 
Exclusions

AGENCY: U.S. Department of Commerce.

ACTION: Notice, request for comments.

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SUMMARY: The U.S. Department of Commerce (DOC) publishes this notice to 
request public comments on proposed categorical exclusions 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, 42 U.S.C. 4321 et seq. (NEPA).

DATES: Comments on the proposed list of categorical exclusions must be 
received by June 15, 2009 to ensure consideration. Late comments will 
be considered to the extent practicable.

ADDRESSES: The ``Draft Department of Commerce Administrative Record'' 
for the proposed categorical exclusions is available at: http://www.nepa.noaa.gov/procedures.html under ``Draft Department of Commerce 
Administrative Record for the proposed categorical exclusions''. 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 9:00 
a.m. and 4:30 p.m. Comments may also be sent by electronic mail to the 
following internet address: [email protected].

FOR FURTHER INFORMATION CONTACT: Written requests for a hard copy of 
the ``Draft Department of Commerce Administrative Record'' for the 
proposed categorical exclusions 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.

SUPPLEMENTARY INFORMATION:

I. National Environmental Policy Act

    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 
a significant impact on the quality of the human environment. NEPA also 
established the Council on Environmental Quality (CEQ), which issued 
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 Council's 
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.
    DOC consists of thirteen operating units with diverse and often 
highly technical portfolios that--together--promote job creation and 
improved living standards for all Americans by creating an 
infrastructure that promotes economic growth, technological 
competitiveness, and sustainable development domestically and abroad 
for all Americans. Among its tasks are: 1. Provide the information and 
tools to maximize U.S. competitiveness and enable economic growth for 
American industries, workers, and consumers; 2 Foster science and 
technological leadership by protecting intellectual property, enhancing 
technical standards and advancing measurement science; and 3. Observe, 
protect and manage the Earth's resources to promote environmental 
stewardship.
    DOC does not currently have any Department-wide categorical 
exclusions (CEs). Only two operating units within DOC have existing 
CEs--the National Oceanic and Atmospheric Administration (NOAA) and the 
Economic Development Administration (EDA)--but they are not available 
for use by other DOC operating units. The need for Department-wide CEs 
was identified during recent efforts to standardize policy and 
procedures for all operating unit grant and cooperative agreement 
programs. This notice targets that effort. DOC is requesting public 
comment on the following proposed CEs (as well as the administrative 
record supporting each exclusion) before making them available for use 
by all of its operating units.

II. Development Process for Establishing Department-wide CEs

    The list of DOC CEs was compiled through an inter-departmental 
effort that included participation from the National Institute of 
Standards and Technology (NIST), National Telecommunication and 
Information Administration (NTIA), EDA, NOAA, the Office of General 
Counsel and the Department's Energy, Safety and Environment Division. 
Representatives from these organizations comprised the review panel 
responsible for determining appropriate CEs for the DOC.
    The CEs have been approved by the DOC Office of General Counsel and 
the designated Senior Agency Official for NEPA.
    Each proposed 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 proposed exclusion fulfilled 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. Having determined that each proposed 
CE met these objectives, the review panel ultimately concluded that the 
actions contemplated by these exclusions encompassed activities that 
have no inherent potential for significant environmental impacts.
    The panel's conclusions were further supported by the 
determinations made by other Federal agencies that had established CEs 
for activities similar in nature, scope and impact to those 
contemplated by DOC. The review panel determined from their experience 
in or on behalf of other Federal agencies that the characteristics of 
the activities in

[[Page 24783]]

DOC were no different than those performed by other Federal agencies. 
Accordingly, through a deliberative process, the review panel 
determined that the proposed categorical exclusions encompassed 
activities that inherently did not have 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 scoring on 
the ``Departmental NEPA Checklist''. Any project that obtains a ``YES'' 
answer in any category is not permitted to use the CE and will be 
required to prepare an Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS). 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.

III. Proposed Department-wide Categorical Exclusions


A-1 Minor renovations and additions to buildings, roads, airfields, 
grounds, equipment, and other facilities that do not result in a change 
in the functional use of the real property (e.g. realigning interior 
spaces of an existing building, adding a small storage shed to an 
existing building, retrofitting for energy conservation, or 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 would not 
require an environmental assessment or environmental impact statement 
for the installation).

    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, 
Federal Emergency Management Agency, Federal Aviation Administration, 
U.S. Coast Guard, the U.S. Air Force, Immigration and Naturalization 
Services. Further, the review panel found that Environmental 
Assessments of a similar nature, scope, and intensity were performed at 
EDA, NOAA, U.S. Department of Agriculture, Federal Law Enforcement 
Training Center and the U.S. Border Patrol without significant 
environmental impacts.

A-2 New construction upon or improvement of land where all of the 
following conditions are met:
    (a) The site is in a developed area and/or a previously disturbed 
site,
    (b) 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,
    (c) The proposed use will not substantially increase the number of 
motor vehicles at the facility or in the area,
    (d) The site and scale of construction or improvement are 
consistent with those of existing, adjacent, or nearby buildings, and,
    (e) The construction or improvement will not result in uses that 
exceed existing support infrastructure capacities (roads, sewer, water, 
parking, etc.).

    DOC is not a major land managing agency in the Federal government. 
Department activities involving new construction or improvements of 
land typically involve single buildings and supporting infrastructure 
in a single locality. Any potential for environmental impacts would be 
of a small scale and confined to more localized impacts.
    The review panel identified an internal Departmental EA from EDA 
that resulted in a Finding of No Significant Impact and legacy 
categorical exclusions and Findings of No Significant Impact from the 
U.S. Coast Guard, Federal Emergency Management Agency, U.S. Navy, and 
the U.S. Border Patrol. EDA issues construction grants to stimulate 
economic development. Both NOAA and the U.S. Coast Guard manage a large 
number of facilities in sensitive aquatic environments along all 
maritime coasts and several rivers. The National Aeronautics and Space 
Administration has a large number of specialty buildings used to help 
develop and promote the nation's space program. Legacy categorical 
exclusions from the Federal Emergency Management Agency include public 
assistance programs that could be implemented in any part of the United 
States to assist in preparing and recovering from a disaster. 
Additionally, legacy categorical exclusions from the U.S. Navy allow 
minor construction under circumstances identical to those proposed 
under this DOC categorical exclusion. The U.S. Border Patrol brought a 
legacy of environmental assessments and findings of no significant 
impact for its land based activities. Based upon this extensive history 
of environmental analyses and the experience of its members, the review 
panel found that actions of a similar nature, scope, and intensity were 
performed throughout the Federal government without significant 
environmental impacts.
    Since new construction or improvements on land could involve 
numerous considerations, the review panel took great care to establish 
limiting provisions to avoid the potential for significant impacts to 
the human environment. The following limiting provisions were 
established to both conform to the evidence presented in the 
administrative record, to clarify meaning of those limiting provisions 
found in the administrative record, or to add to or modify limitations 
found in the record based on the experience of the review panel members 
to further avoid the potential for significant impacts to the human 
environment:
    (a) The site is in a developed area and/or a previously disturbed 
site,
    (b) 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 
(pursuant to the Coastal Zone Management Act);
    (c) The proposed use will not substantially increase the number of 
motor vehicles at the facility or in the area;
    (d) The site and scale of construction or improvement are 
consistent with those of existing, adjacent, or nearby buildings; and
    (e) The construction or improvement will not result in uses that 
exceed existing support infrastructure capacities (roads, sewer, water, 
parking, etc.)
    As a result of all of these limitations, the review panel 
determined that this categorical exclusion contemplated activities that 
would inherently have no potential for significant impacts to the human 
environment.
    The review panel defined this categorical exclusion to be 
sufficiently related to actions that may involve one or more 
extraordinary circumstances. To ensure that only those actions having 
negligible impacts on the human environment are contemplated by this 
categorical exclusion, the review panel proposed that a Record of 
Environmental Consideration be prepared to document the determination 
whether the action is either appropriately categorically excluded or 
whether it requires further analysis through an EA or EIS process.

A-3 Software development, data analysis, or testing, including but not 
limited to computer modeling in existing facilities.

[[Page 24784]]


    Research, development, testing, and evaluation activities or 
laboratory operations contemplated by this categorical exclusion are 
those that would be undertaken within facilities that are operated 
under stringent requirements designed to protect the quality of the 
human environment. As exemplified by documents in the administrative 
record, these requirements include strict operating procedures 
governing laboratory operations and personnel responsibilities. Because 
of these controls, these types of laboratory activities have no 
potential for significant environmental impacts. Further, the Panel 
found that actions of a similar nature, scope, and intensity were 
performed in laboratories throughout the Federal government.
    This CE is supported by long-standing categorical exclusions and 
administrative records. In particular, the review panel identified 
legacy categorical exclusions from Federal Emergency Management Agency, 
U.S. Department of Agriculture, U.S. Department of Energy, the U.S. 
Department of Interior, and the U.S. Navy. Additionally, the review 
panel identified EAs that resulted in Findings of No Significant Impact 
from NOAA and the National Aeronautics and Science Administration.

A-4 Siting/construction/operation of microwave/radio communication 
towers less than 200 feet in height without guy wires on previously 
disturbed ground.

    DOC, through NTIA is involved in issuing grants for siting, 
construction, operation, and maintenance, communications systems and 
similar electronic equipment. These types of electronic equipment are 
essential to support the nationwide telecommunications network.
    This CE is supported by Findings of No Significant Impact on the 
recently completed Programmatic EA for NTIA and on EAs from the U.S. 
Department of Energy. Furthermore, this CE is supported by long-
standing categorical exclusions from the Federal Emergency Management 
Agency.

A-5 Retrofit/upgrade existing microwave/radio communication towers that 
do not require ground disturbance.

    This CE is supported by the recently completed Programmatic EA for 
NTIA with a Finding of No Significant Impact and an EA for the National 
Aeronautics and Space Administration, also with a Finding of No 
Significant Impact.

A-6 Adding fiber optic cable to transmission structures or burying 
fiber optic cable in existing transmission line rights-of-way.

    This CE is supported by a long-standing categorical exclusion with 
the Department of Energy and Findings of No Significant Impact on 
Environmental Assessments prepared for the Bureau of Land Management, 
Vandenberg Air Force Base, the US Park Service, and the Tennessee 
Valley Authority.

A-7 Acquisition, installation, operation, and removal of communications 
systems, data processing equipment, and similar electronic equipment.

    This CE is supported by a legacy categorical exclusion from the 
U.S. Department of Energy and Findings of No Significant Impact on 
several Description Memorandums from the U.S. Department of Energy.

A-8 Planning activities and classroom-based training and classroom-
based exercises using existing conference rooms and training 
facilities.

    This CE is supported by a long-standing categorical exclusion with 
the Department of Energy and a Finding of No Significant Impact on an 
Environmental Assessment from the recently completed Programmatic EA 
for NTIA.

A-9 Purchase of mobile and portable equipment and infrastructure which 
is stored in previously existing structures or facilities.

    This CE is supported by a long-standing categorical exclusion with 
the U.S. Coast Guard and a Finding of No Significant Impact on an EA 
from the recently completed Programmatic EA for NTIA.

A-10 Siting, construction (or modification), and operation of support 
buildings and support structures (including, but not limited to, 
trailers and prefabricated buildings) within or contiguous to an 
already developed area (where active utilities and currently used roads 
are readily accessible).

    This CE is supported by a long-standing categorical exclusion with 
the U.S. Department of Energy and two Memorandum for File for relevant 
projects and their supporting documentation that indicated 
insignificant impacts, also with the U.S. Department of Energy.

A-11 Personnel, fiscal, management, and administrative activities, such 
as recruiting, processing, paying, recordkeeping, resource management, 
budgeting, personnel actions, and travel.

    The actions contemplated by this CE are a variety of administrative 
activities that have no inherent potential for significant 
environmental impacts. This CE is supported by long-standing CEs from 
the U.S. Coast Guard, U.S. Navy, Federal Emergency Management Agency, 
U.S. Air Force, U.S. Army, and the U.S. Department of the Interior. 
Further, the Panel found that actions of a similar nature, scope, and 
intensity were performed throughout the Federal government without 
significant environmental impacts.
    The public is invited to submit comments on both the ``Draft 
Department of Commerce Administrative Record'' for the proposed CEs, 
and the CEs listed above. See the ADDRESSES for instructions on 
submitting comments. The ``Draft Department of Commerce Administrative 
Record'' for the proposed CEs is available at http://www.nepa.noaa.gov/procedures.html under ``Draft Department of Commerce Administrative 
Record for the proposed categorical exclusions''. In addition, hard 
copies may be obtained by contacting Steve Kokkinakis, as provided 
above.

Paperwork Reduction Act

    This notice requests public comments on proposed Department-wide 
CEs and 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 ``Departmental NEPA 
Checklist'' referenced in Section II 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.


[[Page 24785]]


    Dated: May 21, 2009.
Paul N. Doremus,
NOAA NEPA Coordinator, Office of Program Planning and Integration.
[FR Doc. E9-12295 Filed 5-21-09; 4:15 pm]
BILLING CODE 3510-12-S