[Federal Register Volume 89, Number 41 (Thursday, February 29, 2024)]
[Notices]
[Pages 14811-14814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04248]


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NORTHERN BORDER REGIONAL COMMISSION


Adoption of Categorical Exclusions Under the National 
Environmental Policy Act

AGENCY: Northern Border Regional Commission.

ACTION: Notice of adoption of categorical exclusions.

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SUMMARY: The Northern Border Regional Commission (NBRC) is adopting 
categorical exclusions (CEs) established by the Denali Commission, 
which the NBRC will apply to similar NBRC categories of actions to 
comply with the National Environmental Policy Act. This notice 
identifies the Denali Commission CEs and NBRC's categories of proposed 
actions for which it intends to use the Denali Commission's CEs, and 
describes the consultation between the agencies.

DATES: The CEs identified below are available for the NBRC to use for 
its proposed actions effective upon publication.

FOR FURTHER INFORMATION CONTACT: Rich Grogan, NBRC Executive Director, 
telephone number: 603-369-3001, email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

National Environmental Policy Act and Categorical Exclusions

    Congress enacted the National Environmental Policy Act, 42 U.S.C. 
4321-4347, (NEPA) in order to encourage productive and enjoyable 
harmony between humans and the environment, recognizing the profound 
impact of human activity and the critical importance of restoring and 
maintaining environmental quality to the overall welfare of humankind. 
42 U.S.C. 4321, 4331. NEPA seeks to ensure that agencies consider the 
environmental effects of their proposed major actions in their 
decision-making processes and inform and involve the public in that 
process. NEPA created the Council on Environmental Quality (CEQ), which 
promulgated NEPA implementing regulations, 40 CFR parts 1500 through 
1508 (CEQ regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review of any major Federal action--an environmental impact statement 
(EIS), environmental assessment (EA), or CE. 40 CFR 1501.3. If a 
proposed action is likely to have significant environmental effects, 
the agency must prepare an EIS and document its decision in a record of 
decision. 40 CFR part 1502, 1505.2. If the proposed action is not 
likely to have significant environmental effects or the effects are 
unknown, the agency may instead prepare an environmental assessment 
(EA), which involves a more concise analysis and process than an EIS. 
40 CFR 1501.5. Following the EA, the agency may conclude that the 
action will have no significant effects and document that conclusion in 
a finding of no significant impact. 40 CFR 1501.6. If the analysis 
concludes that the action is likely to have significant effects, 
however, then an EIS is required.
    Under NEPA and the CEQ regulations, a Federal agency also can 
establish CEs--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their agency NEPA procedures. 42 U.S.C. 4336e(1); 40 
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a 
CE covers a proposed action, it then evaluates the proposed action for 
extraordinary circumstances in which a normally excluded action may 
have a significant effect. 40 CFR 1501.4(b). If no extraordinary 
circumstances are present or if further analysis determines that the 
extraordinary circumstances do not involve the potential for 
significant environmental effects, the agency may apply the CE to the 
proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 
40 CFR 1501.4. If the extraordinary circumstances have the potential to 
result in significant effects, the agency is required to prepare an EA 
or EIS.
    An agency may not segment an action to meet the definition of a CE. 
Agencies must evaluate, in a single review, proposals or parts of 
proposals that are related to each other closely enough to be, in 
effect, a single course of action, and must consider as part of the 
review any connected actions. Connected actions are ones that 
automatically trigger other actions, cannot or will not proceed unless 
other actions are taken, or are interdependent parts of a larger action 
and depend on the larger action for their justification.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt'' and use another 
Federal agency's CEs for proposed actions. 42 U.S.C. 4336c. To use 
another agency's CEs under section 109, the adopting agency must 
identify the relevant CEs listed in another agency's (``establishing 
agency'') NEPA procedures that covers the adopting agency's category of 
proposed actions or related actions; consult with the establishing 
agency to ensure that the proposed adoption of the CE for a category of 
actions is appropriate;

[[Page 14812]]

identify to the public the CE that the adopting agency plans to use for 
its proposed actions; and document adoption of the CE. 42 U.S.C. 4336c. 
NBRC has prepared this notice to meet these statutory requirements.
NBRC's Programs
    Created in 2008, the Northern Border Regional Commission (NBRC) is 
a Federal-State partnership whose mission is to help alleviate economic 
distress and encourage private sector job creation in Maine, New 
Hampshire, New York, and Vermont. In its fifteen-year history, the NBRC 
has awarded over 400 grants through its primary Catalyst Program, the 
Forest Economy Program (FEP), the Timber for Transit program, and other 
special initiatives.
    Since 2008, the NBRC has grown each year, both in size and 
appropriations, and was included in the 2021 Bipartisan Infrastructure 
Law (BIL) passed by Congress, which appropriated $150 million to the 
Commission for deployment across its four-State footprint in support of 
a wide range of economic development projects. Eligible recipients for 
NBRC grant funds include State and local governments, Indian Tribes, 
and public and nonprofit organizations.
    Through its grantmaking, the NBRC funds projects in the following 
categories, as prescribed in 40 U.S.C., subtitle V, section 15501:
    (1) to develop the transportation infrastructure of its region;
    (2) to develop the basic public infrastructure of its region;
    (3) to develop the telecommunications infrastructure of its region;
    (4) to assist its region in obtaining job skills training, skills 
development and employment-related education, entrepreneurship, 
technology, and business development;
    (5) to provide assistance to severely economically distressed and 
underdeveloped areas of its region that lack financial resources for 
improving basic health care and other public services;
    (6) to promote resource conservation, tourism, recreation, and 
preservation of open space in a manner consistent with economic 
development goals;
    (7) to promote the development of renewable and alternative energy 
sources; and
    (8) to otherwise achieve the purposes of this subtitle.
Denali Commission's Program
    Created by Congress in 1998, the Denali Commission is essentially 
similar to the NBRC in its mission and function. The Denali Commission 
Act of 1998 established the Denali Commission (Commission), and as part 
of the act, the Commission's mission of providing job training and 
other economic development services in rural communities was 
established with a specific focus on promoting rural development, and 
providing power generation, transmission facilities, modern 
communication systems, water and sewer systems and other infrastructure 
needs in rural Alaska.
    Since its inception, the Denali Commission Act of 1998 has been 
updated several times expanding its mission to include the planning and 
construction of health care facilities and the establishment of the 
Denali Access System Program for surface transportation infrastructure 
and waterfront transportation projects. The NBRC collaborates 
extensively with the Denali Commission on both administrative and 
programmatic matters.

II. Denali Commission Categorical Exclusions

    NBRC is in the process of developing its own list of CEs and, in 
the interim, has identified the following CEs listed in appendices A 
and B to subtitle B of the Denali Commission's NEPA implementing 
procedures, 45 CFR part 900. The NBRC will require all grantees to 
complete a CATEX Checklist, which will closely resemble the CATEX 
Checklist completed by applicants to the Denali Commission's programs. 
The NBRC will review the CATEX Checklist and project details and, if it 
determines that application of the CATEX is appropriate, will post a 
Memorandum for Record (MFR) on NBRC's NEPA-dedicated web page, which 
may be accessed by the public.
    Because the Denali Commission and the NBRC serve similar purposes 
with respect to economic development in their respective 
Congressionally prescribed regions, the list of categories in the 
Denali procedures aligns closely with the categories of actions for 
which NBRC contemplates using the CE at this time.

A: General Categorical Exclusions

    Actions consistent with any of the following categories are, in the 
absence of extraordinary circumstances, categorically excluded from 
further analysis in an EA or EIS:
    A1. Routine administrative and management activities including, but 
not limited to, those activities related to budgeting, finance, 
personnel actions, procurement activities, compliance with applicable 
executive orders and procedures for sustainable or ``greened'' 
procurement, retaining legal counsel, public affairs activities (e.g., 
issuing press releases, newsletters and notices of funding 
availability), internal and external program evaluation and monitoring 
(e.g., site visits), database development and maintenance, and computer 
systems administration.
    Application of the CE will be limited to the following NBRC 
activities:
     Internal operations of the NBRC.
     Grants that support discrete administrative and management 
activities funded under the authority granted in 40 U.S.C. 15501(a) 
such as internal planning, budgeting, and procurement activities.
    A2. Routine activities that the Commission does to support its 
program partners and stakeholders, such as serving on task forces, ad 
hoc committees or representing Commission interests in other forums.
    Application of the CE will be limited to the following NBRC 
activities:
     Participation in regional forums, e.g., multi-funder 
forums;
     Single or multiple-agency visits to projects and potential 
projects;
     Participation in strategic planning initiatives of 
stakeholders and regional partners;
     Participation on ad hoc committees designed to elucidate 
community needs and economic development objectives.
    A3. Approving and issuing grants for administrative overhead 
support.
    Application of the CE will be limited to the following NBRC 
activities:
     Grants for capacity building initiatives in the NBRC's 
region to address limited capacity among partners and stakeholders, 
grantees and potential grantees. These initiatives include: Adding 
staff and/or contractual capacity within regional economic development 
entities for the purpose of technical assistance to grantees; Providing 
support for administrative overhead costs for these economic 
development entities; Providing grants for contractual support for 
grantees and potential grantees to be deployed through regional 
economic development entities.
    A4. Approving and issuing grants for social services, education and 
training programs, including but not limited to support for Head Start, 
senior citizen programs, drug treatment programs, and funding 
internships, except for projects involving construction, renovation, or 
changes in land use.
    Application of the CE will be limited to the following NBRC 
activities:
     Grants for workforce development and training programs, 
planning initiatives, community visioning processes, and other 
community-based capacity-building initiatives.

[[Page 14813]]

    A5. Approving and issuing grants for facility planning and design.
    Application of the CE will be limited to the following NBRC 
activities:
     Grants for discrete planning and design activities, such 
as climate resiliency planning, inventory assessments, and identifying 
local and regional sourcing of forest-based products, where such 
activities are independent of any actions taken to implement the 
resulting plans and designs.
    A6. Nondestructive data collection, inventory, study, research, and 
monitoring activities (e.g., field, aerial and satellite surveying, and 
mapping).
    Application of the CE will be limited to the following NBRC 
activities:
     Grants to support discrete nondestructive data collection, 
inventory, study, research, and monitoring activities funded under 40 
U.S.C. 15501(a).
    A7. Research, planning grants and technical assistance projects 
that are not reasonably expected to commit the Federal Government to a 
course of action, to result in legislative proposals, or to result in 
direct development.
    Application of the CE will be limited to the following NBRC 
activities:
     Grants to support data collection and research that 
furthers the NBRC's, and/or grantees', stakeholders', partners', etc. 
understanding of the region's needs, capacity, or funding gaps as it 
pertains to economic development as defined by the NBRC and expressly 
noted in 40 U.S.C. 15501(a).
     Approving and issuing grants to organization to provide 
technical advice and grant administration assistance to organizations 
(e.g., community and economic development entities who provide 
technical and grant administration assistance to address lack of 
capacity at State, regional and local levels), where such assistance is 
independent of any implementation actions with potential environmental 
effects.
    A8. Acquisition and installation of equipment including, but not 
limited to, EMS, emergency and non- expendable medical equipment (e.g., 
digital imaging devices and dental equipment), and communications 
equipment (e.g., computer upgrades).
    Application of the CE will be limited to the following NBRC 
activities:
     Grants to support acquisition and installation of fiber 
optic cable upgrades and other communications equipment within the 
existing footprint of a building, vehicle, existing electrical or 
communications infrastructure to improve broadband access;
     Grants to support acquisition and installation of medical 
and emergency equipment for medical facilities within the existing 
footprint of a building or within a vehicle;
     Grants to support acquisition and installation of 
equipment within the existing footprint of a building or within a 
vehicle to support enhanced cellular access.

B: Program Categorical Exclusions

    Actions consistent with any of the following categories are, in the 
absence of extraordinary circumstances, categorically excluded from 
further analysis and documentation in an EA or EIS upon completion of 
the Denali Commission CATEX checklist:
    B1. Upgrade, repair, maintenance, replacement, or minor renovations 
and additions to buildings, roads, harbors and other maritime 
facilities, grounds, equipment, and other facilities, including but not 
limited to, roof replacement, foundation repair, ADA access ramp and 
door improvements, weatherization and energy efficiency related 
improvements, HVAC renovations, painting, floor system replacement, 
repaving parking lots and ground maintenance, that do not result in a 
change in the functional use of the real property.
    Application of the CE will be limited to the following NBRC 
activities, all of which would occur within the existing footprint of a 
building or on adjacent disturbed land:
     Grants to support renovation of rural health facilities to 
bring them up to modern use standards;
     Grants to support upgrades, maintenance and repair of 
existing transportation infrastructure (e.g., covered bridges) 
including for the purpose of resiliency to changing local climate;
     Grants to support connections to existing trails, for 
example, from a city street to a bike path, and renovating tourist 
destination hubs to ensure continued access to tourist centers in the 
region where potential impacts of connections are documented and do not 
substantially alter existing facilities, traffic patterns or other 
existing infrastructure;
     Grants to support additions to existing buildings, roads, 
harbors, and/or other maritime facilities to ensure continued access 
for purposes of economic development and/or community access, where the 
addition will not result in changes to the existing functional use, and 
where any additions occur on adjacent previously disturbed land.
    B2. Engineering studies and investigations that do not permanently 
change the environment.
    Application of the CE will be limited to the following NBRC 
activities:
     Grants to support improvement plans, rehabilitation 
planning, climate resiliency planning and the like, for projects 
including new water and wastewater infrastructure, outdoor recreation 
trails, and transportation studies for airports and roadways, where 
such assistance is independent of any implementation actions with 
potential environmental effects and does not result in surface 
disturbance.
    B3. Construction or lease of new infrastructure including, but not 
limited to, healthcare facilities, community buildings, housing, and 
bulk fuel storage and power generation plants, where such lease or 
construction:
    a. Is at the site of existing infrastructure and capacity is not 
substantially increased; or
    b. Is for infrastructure of less than 12,000 square feet of useable 
space when less than two acres of surface land area are involved at a 
new site.
    Application of the CE will be limited to the following NBRC 
activities, which would occur on previously disturbed land:
     Grants for new infrastructure at rural healthcare 
facilities;
     Grants for new infrastructure at childcare facilities;
     Grants for projects that upgrade or replace outdated power 
generation technology;
     Grants for water and wastewater infrastructure;
    B4. Construction or modification of electric power stations or 
interconnection facilities (including, but not limited to, switching 
stations and support facilities).
    Application of the CE will be limited to the following NBRC 
activities, which would occur on previously disturbed land:
     Grants to support the construction or modification of new 
or existing power stations and associated infrastructure in the region;
    B5. Construction of electric powerlines approximately ten miles in 
length or less, or approximately 20 miles in length or less within 
previously disturbed or developed powerline or pipeline rights-of-way.
    Application of the CE will be limited to the following NBRC 
activities:
     Grants to support new powerlines to communities seeking 
new connections or upgrades to existing infrastructure.
    B7. Demolition, disposal, or improvements involving buildings or

[[Page 14814]]

structures when done in accordance with applicable regulations, 
including those regulations applying to removal of asbestos, 
polychlorinated biphenyls (PCBs), and other hazardous materials.
    Application of the CE will be limited to the following NBRC 
activities, which would not involve the demolition of structures that 
are listed on or eligible for listing on the National Register of 
Historic Properties, or improvement activities outside the footprint of 
the existing structure:
     Grants to support demolition or improvement of buildings 
or structures to support economic development activities as specified 
in 40 U.S.C. 15501(a).

III. Documentation of CE and Public Notice

    The NBRC will document the use of the above CEs for each project to 
which they are applied and will maintain this documentation in the 
project's records in the NBRC's online file storage system. The CEs 
will be documented in a ``Memorandum for Record'' format to stay 
consistent across projects. NBRC annually provides required NEPA 
dedicated training to our State, regional and local partners, as well 
as our grantees. NBRC's NEPA process, including all templates, guidance 
documents, procedures, etc., are made available to the public on NBRC's 
NEPA-dedicated web page.

IV. Consideration of Extraordinary Circumstances

    If an agency determines that a CE covers a proposed action, the 
agency must evaluate the proposed action for extraordinary 
circumstances in which a normally excluded action may have a 
significant effect. 40 CFR 1501.4(b). NBRC does not currently have its 
own NEPA implementing procedures to guide its application of 
extraordinary circumstances. Until NBRC establishes NEPA implementing 
procedures, for purposes of considering extraordinary circumstances in 
connection with the Denali Commission CEs discussed in this notice, 
NBRC will consider whether the proposed action has the potential to 
result in significant effects by considering the factors listed in the 
Denali Commission's definition of extraordinary circumstances, 
including, but not limited to, a reasonable likelihood of significant 
impacts on environmentally sensitive resources; threatening a violation 
of a Federal, Tribal, State, or local law or requirement imposed for 
the protection of the environment; or disproportionate and adverse 
effects on communities with environmental justice concerns. NBRC would 
analyze proposed actions for the extraordinary circumstances in the 
Denali Commission's NEPA implementing procedures and consistent with 
the CEQ NEPA regulations. 45 CFR 900.204 (c). NBRC will then assess 
whether an extraordinary circumstance is present and if so, whether the 
CE may nonetheless be applied, consistent with 40 CFR 1501.4(b) or any 
successor regulation. If NBRC cannot apply a CE to a particular 
proposed action due to extraordinary circumstances, NBRC will prepare 
an EA or EIS, consistent with 40 CFR 1501.4(b)(2), or determine if the 
action is covered under an existing NEPA document. NBRC will document 
its consideration of extraordinary circumstances as part of the 
Memorandum for Record discussed in Part III above.

V. Consultation With the Denali Commission and Determination of 
Appropriateness

    NBRC worked with the Denali Commission to identify Denali 
Commission CEs that could apply to NBRC proposed actions and began 
consultation in September 2023. During this consultation, the agencies 
discussed whether the categories of NBRC proposed actions would be 
appropriately covered by the Denali Commission CEs; each Agency's 
process for review of projects with respect to CEs; and the 
extraordinary circumstances that NBRC should consider before applying 
these CEs to NBRC's proposed actions. The consultation continued 
through early November 2023, and consisted of detailed email exchanges 
and virtual meetings with the Denali Commission's lead reviewer of 
NEPA-related items.
    At the conclusion of that process, the agencies determined that 
NBRC's proposed use of the CEs as described in this notice would be 
appropriate because the categories of actions for which NBRC plans to 
use the CEs are covered by the Denali Commission CEs.

VI. Conclusion

    This notice documents adoption of the Denali Commission CEs listed 
above in accordance with 42 U.S.C. 4336c(3), and they are available for 
use by NBRC effective immediately.

Jonathan O'Rourke,
Senior Program Specialist.
[FR Doc. 2024-04248 Filed 2-28-24; 8:45 am]
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