[Federal Register Volume 74, Number 130 (Thursday, July 9, 2009)]
[Notices]
[Pages 32876-32880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16151]


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DEPARTMENT OF COMMERCE

[Docket No. 0906221081-91081-01]
RIN 0660-XA10


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

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

ACTION: Notice and request for comments.

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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

[[Page 32877]]

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: 
[email protected].
    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

[[Page 32878]]

``[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

[[Page 32879]]

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.
    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 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).
    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.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

[[Page 32880]]

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.
    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]
BILLING CODE 3510-12-P