[Federal Register Volume 89, Number 64 (Tuesday, April 2, 2024)]
[Notices]
[Pages 22688-22695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06751]
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DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
[Docket Number: 240325-0086]
RIN 0660-XC056
National Environmental Policy Act Procedures and Categorical
Exclusions
AGENCY: National Telecommunications and Information Administration,
U.S. Department of Commerce.
ACTION: Notice.
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SUMMARY: The National Telecommunications and Information Administration
(``NTIA'') publishes this Notice that it will follow the First
Responder Network Authority's (``FirstNet Authority'') National
Environmental Policy Act (``NEPA'') procedures on an interim basis with
modifications to account for NTIA's internal organization and establish
30 new categorical exclusions (``CEs'') in compliance with NEPA,
Council on Environmental Quality (``CEQ'') regulations, and other
related authorities.
DATES: The use of these procedures and CEs will take effect as of April
2, 2024.
FOR FURTHER INFORMATION CONTACT: Amanda Pereira, Environmental Program
Officer, National
[[Page 22689]]
Telecommunications and Information Administration, U.S. Department of
Commerce, 1401 Constitution Avenue NW, Room 4878, Washington, DC 20230,
by phone at 202-834-4016, or by email at ntia.gov">apereira@ntia.gov.
SUPPLEMENTARY INFORMATION:
I. Background
NTIA is the executive branch agency that is principally responsible
for advising the President on telecommunications and information policy
issues. NTIA's programs and policymaking focus largely on expanding
broadband Internet access and adoption in the United States, expanding
the use of spectrum by all users, and ensuring that the Internet
remains an engine for continued innovation and economic growth. NTIA is
engaged in a range of efforts to increase Internet access and adoption.
On November 15, 2021, President Biden signed the Infrastructure
Investment and Jobs Act, Public Law 117-58, (``IIJA'') into law.
Passage of the IIJA is a significant step forward in achieving the
Biden-Harris Administration's goal of providing broadband access to the
entire United States. The IIJA sets forth a $65 billion investment into
broadband; $48.2 billion of that investment will be administered by
NTIA. This investment will leverage NTIA's experience in promoting
broadband infrastructure development and digital inclusion efforts. To
facilitate NTIA's compliance with the IIJA and because of the critical
need to expand and secure broadband access across the United States,
NTIA must find opportunities to accelerate effective use of its
appropriated funding while ensuring compliance with all relevant
authorities, including NEPA.
Presently, CEQ is undertaking a multiphase rulemaking process to
review and revise the NEPA implementing regulations.\1\ Therefore, NTIA
proposed to establish new CEs and otherwise follow the existing NEPA
implementing procedures of the FirstNet Authority, an independent
authority within NTIA, in the interim while CEQ completes its
rulemaking processes. Following the FirstNet Authority's procedures \2\
will facilitate the IIJA's large-scale investment in NTIA programs and
the need for NTIA to fulfill the mandates of the IIJA in a timely
manner, by ensuring NTIA make the most efficient use of time and
available funding and resources to fulfill its environmental analysis
and decision-making responsibilities. Following CEQ's revisions to the
NEPA regulations, NTIA intends to propose comprehensive NEPA
procedures. In the interim, NTIA will rely on the FirstNet Authority
procedures consistent with how they are written and currently executed,
with the exception of the Roles and Responsibilities section, which
NTIA will address by publishing guidance on its website reflecting
NTIA's internal organization. In addition, NTIA is establishing and
publishing CEs specific to NTIA's actions.
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\1\ 86 FR 55759 (Oct. 7, 2021).
\2\ https://www.firstnet.gov/sites/default/files/FirstNet_Implementing_Procedures_January_2018.pdf.
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Accordingly, on March 30, 2023, NTIA published for comment its
proposal to rely on the FirstNet Authority's NEPA implementing
procedures and establish NTIA's CEs.\3\ Publication of the Notice began
a 30-day comment period that ended on May 1, 2023. NTIA received eight
substantive submissions from the broadband and telecommunications
community, including one state regional cooperative and seven industry
associations. A complete set of comments filed in response to the
proposal may be viewed at https://www.regulations.gov, searching for
Docket ID NTIA-2023-0004.
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\3\ 88 FR 19089 (March 30, 2023).
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In response to that Notice, commenters encouraged NTIA to maintain
or incorporate CEs established by the Department of Commerce in 2009
(which have been used by NTIA since 2009) and to acknowledge the
applicability of CEs established by FirstNet in 2018 to NTIA's actions.
NTIA undertook a comparative review of the existing Department programs
to identify the applicable Department-wide CEs already available to
NTIA. In light of this review, NTIA is not finalizing the CEs proposed
as B-5 and C-8 because the actions they cover are encompassed by
existing Department-wide CEs. In response to comments, NTIA also made
minor editorial revisions to several of the proposed CEs for
consistency with Department-wide and FirstNet Authority CEs, as
explained throughout this Notice, and updated its administrative record
to explain the changes. This Notice finalizes newly established CEs
that NTIA may apply to its proposed actions and the implementing
procedures it will use in the interim. Additionally, where appropriate,
NTIA may continue to apply Departmental CEs that are currently
available to NTIA when they would best support NTIA's mission and NEPA
activities. Accordingly, while this Notice establishes new CEs, in so
doing NTIA clarifies that Departmental CEs remain applicable to NTIA
programs and that it may adopt or establish additional CEs through
separate and subsequent processes.
Commenters generally supported NTIA's interim use of FirstNet's
NEPA implementing procedures; however, NTIA received several comments
expressing concerns about how NTIA will implement NEPA for the
Broadband Equity Access and Deployment (BEAD) Program. In the near
term, NTIA will follow the FirstNet implementing procedures for BEAD
and all other NTIA actions and will also consider all procedural
comments in developing its final implementing procedures once CEQ
completes its rulemaking process.
NTIA consulted with CEQ on the proposed and final revisions to the
FirstNet Authority's NEPA implementing procedures and NTIA's newly
established CEs. CEQ issued a letter stating that it has reviewed the
revised procedures, including the newly established CEs, and found them
to be in conformity with NEPA and CEQ regulations.\4\ The final CEs and
administrative record will be available for review at ntia.gov.
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\4\ See CEQ NTIA Conformity Letter (March 1, 2024) available at
www.ntia.gov.
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II. Comments and Agency Responses
Comments on the proposed procedures and CEs included several
similar positions, inquiries both within and outside the scope of the
Notice, and recommendations stemming from the proposed procedural
adoption and development of categorical exclusions. NTIA has carefully
considered each of the comments submitted, grouped and summarized the
comments by issues raised, and responded accordingly.
NEPA Should Not Apply to BEAD
Comment: One commenter was concerned that imposing NEPA's
environmental review standards on BEAD recipients will have the effect
of unduly delaying the construction of broadband networks by adding
unnecessarily burdensome and time-consuming environmental review that
is not required by the statute. As a result, the commenter suggested
that NTIA should determine that NEPA does not apply to the BEAD
program.
Response: NTIA has determined that the issuance of $42.5B in
Federal grant funding meets NEPA's statutory definition of major
Federal action because these Federal funds are under substantial
Federal control through requirements associated with 2 CFR part
[[Page 22690]]
200. NEPA requires Federal agencies to interpret and administer Federal
laws in accordance with NEPA's policies to ensure sound decision
making. NTIA is committed to work with CEQ to find ways to ensure NEPA
efficiencies, including through the development of these CEs.
Multiple Permitting and Approval Processes
Comment: Several commenters noted that broadband installations
often require permits and approvals on Federal lands, along interstate
and state highways, through local and private rights-of-way (ROWs), and
on poles and across railroad crossings across and from multiple
entities and jurisdictions. Commenters expressed a general need for an
efficient and streamlined approach to NTIA's environmental review and
other approvals necessary to reach the unserved and underserved in a
timely manner.
Response: NTIA recognizes that the execution and deployment of
projects throughout its programs may involve multiple permits,
approvals, entities and jurisdictions. NTIA is proactively engaging
with Federal, State, and local agencies and Tribes to reduce
redundancies, avoid duplicative reviews, and attempt to streamline
permitting and approvals processes for these important broadband
infrastructure projects.
As a result of IIJA's large-scale investment in NTIA programs and
the need for NTIA to fulfill the mandates of IIJA, in 2022, NTIA stood
up a Permitting Tiger Team to identify the most efficient approach to
fulfilling the agency's environmental analysis and decision-making
responsibilities under NEPA. NTIA's extensive work with CEQ to finalize
these newly established CEs directly benefits recipients by providing a
thoughtful and thorough streamlining tool that can improve the
predictability of reviews where NTIA is the lead agency. In addition,
if other agencies see benefits to adopting these newly established CEs
or other applicable CEs to efficiently execute aspects of broadband
deployment in their jurisdiction, NTIA will coordinate with them to do
so when appropriate.
Through its participation in the American Broadband Initiative
(ABI) and its roles and responsibilities under the MOBILE NOW Act, NTIA
participates in the ``Streamlining Federal Permitting'' workstream (led
by the Departments of Homeland Security, the Interior, and Agriculture)
and has aligned interagency colleagues in a range of initiatives to
streamline and facilitate the deployment of communications
installations. For example, NTIA identified a potential bottleneck for
deploying communication facilities on Tribal lands managed by the
Bureau of Indian Affairs (``BIA''). NTIA and BIA have executed a
memorandum of understanding (``MOU'') that defines the relationship
between NTIA and BIA and their individual and collective roles and
responsibilities in complying with environmental, historic
preservation, and cultural resources requirements related to the Tribal
Broadband Connectivity Program (``TBCP'') established by the
Consolidated Appropriations Act of 2021 (``CAA''). The MOU streamlines
NEPA reviews and environmental permitting for both NTIA, as the lead
Federal agency for grant programs, and BIA, as authorized to grant ROWs
over and across land held in trust by the United States under the
Indian Right-of-Way Act.
In July 2023, NTIA circulated its Federal Permitting Coordination
Strategy to obtain input from Federal permitting agencies. In August
2023, NTIA began implementing strategies that foster open communication
so that project-level problems and delays can be identified as early as
possible, and collaborative solutions can be developed. NTIA has
provided predictive mapping tools to assist permitting agencies in
identifying and planning for application surges and has worked with the
Federal Permitting Improvement Steering Council to fund supplemental
permitting staff and resources.
At the project level, NTIA environmental reviewers work closely and
cooperatively with Federal agencies when projects are sited on
federally managed lands and will continue to do so in accordance with
new obligations under NEPA that require the designation of a lead
agency when multiple agencies have independent but intersecting NEPA
responsibilities on a single action. In such instances, NTIA engages in
early coordination to align its approvals with the authorities of
Federal land managing agencies, which have the expertise and local area
knowledge of the resources and communities potentially affected by
proposed projects, with the goal of reducing or eliminating duplication
of effort wherever possible.
NTIA Should Adopt the Findings of Other Agencies
Comment: Commenters also noted that environmental reviews are often
required by multiple agencies and may require redundant and duplicative
analysis. They suggested that, when projects require review by multiple
agencies, NTIA should adopt the findings of the other Federal agency or
agencies without further environmental review to support compliance
with NEPA.
Response: While NTIA has an independent obligation to ensure that
analysis of its actions meets legal and technical sufficiency
requirements, NTIA strives to reduce or eliminate duplication of effort
to gain efficiency in the environmental compliance process. Changes to
NEPA as a result of the Fiscal Responsibility Act of 2023 (FRA) require
that ``[t]o the extent practicable, if a proposed agency action will
require action by more than one Federal agency and the lead agency has
determined that it requires preparation of an environmental document,
the lead and cooperating agencies shall evaluate the proposal in a
single environmental document.'' Additionally, where NTIA has an action
that is substantially the same as one considered in another agency's
NEPA document or categorical exclusion determination, NTIA will
consider adopting it if consistent with 40 CFR 1506.3.
NEPA Approvals Should Be Provided at Grant Award
Comment: One commenter noted that competition for fiber contractors
and availability of materials are challenging to project timelines and
suggested that providing NEPA approvals at grant award would enable
grantees to immediately begin construction.
Response: NTIA can approve projects when there is an ``actionable''
project and NEPA documentation is complete. A project is actionable
once NTIA has decided to award a grant. To make a NEPA decision on a
project, NTIA must have adequate information about the project to
evaluate the project's potential environmental impacts. NTIA may
approve CEs for projects with no ground disturbance and no impacts on
buildings or structures upon grant award if the application includes
sufficient information to support such a determination. Otherwise, NTIA
will either conduct the NEPA review based on the information the
grantee provides or condition the award on provision of sufficient
information to allow NTIA to complete the NEPA review prior to
releasing funds.
While NTIA encourages grantees to provide a detailed description of
their proposed project and the area in which it would be sited with
their grant applications, NTIA does not require grant applicants to
develop a full NEPA analysis prior to award. If a grantee voluntarily
elects to submit a complete
[[Page 22691]]
environmental analysis pre-award, NTIA will review this information to
ascertain if a NEPA decision is possible at the time of grant award.
Clarify Environmental Review Timelines
Comment: Some commenters noted that the environmental analysis and
review process could delay construction and put projects and grant
funding at risk and requested that NTIA clarify buildout deadlines and
extensions and environmental review timelines under IIJA. Commenters
also thought that NTIA should consider applying ``shot clocks'' to
allow projects to move forward within an established timeframe even if
environmental review has not been completed.
Response: Recent changes to NEPA require agencies to conclude
environmental analysis within 1 year for EAs and within 2 years for
EISs. NTIA has previously estimated that the CE process can take
approximately 3 to 6 months.\5\ NTIA's newly established CEs ensure
that this streamlined NEPA option is available to most grant funded
broadband projects. As a cooperating agency to FirstNet's Programmatic
EIS documents, NTIA is further exploring how to use these analyses to
streamline NEPA for projects that may not qualify as categorically
excluded but where the substantial record of past review supports that,
where mitigation measures and best management practices are
incorporated into the proposed action, such measures and practices can
eliminate potentially significant environmental impacts.
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\5\ NEPA: Environmental and Historic Preservation Compliance
(webinar), https://youtu.be/BzYFheHqL0I?si=6yOB-7vibAMbpmFT.
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NTIA does not currently apply shot clocks to environmental review
but makes every effort to complete the NEPA review process in a timely
and efficient manner upon receipt of legally and technically sufficient
analysis.
Allow Segmentation of Projects
Comment: Several commenters suggested that NTIA should allow the
environmental review of projects to proceed in segments to enable
recipients to initiate construction of parts of projects prior to the
completion of NEPA for the full project.
Response: NEPA and the CEQ regulations do not allow an agency to
break a single project into multiple components (i.e., phased or
staged) without completing environmental review for the entire project,
whether by CE, EA, or EIS.\6\ In the rare cases where a grant includes
multiple subgrantees/subrecipients proposing projects that are
completely independent of each other, separate NEPA analyses are
appropriate, NTIA may find sufficient ``independent utility'' to allow
one segment to proceed while others are still receiving NEPA review.\7\
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\6\ Natural Resources Defense Council, Inc. v. U.S. Nuclear
Regulatory Commission, 196 U.S. App. D.C. 354, 606 F.2d 1261, 1269
(D.C. Cir. 1979).
\7\ Save Barton Creek Association v. Federal Highway
Administration, 950 F.2d 1129, 1133 (5th Cir. 1992).
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NTIA assesses independent utility based on a project's independent
function, absent the construction of other components of the project.
Only component parts of a grant that could be constructed even if the
other phases were not built and can functionally operate on their own
can be considered as separate, single, and complete projects with
independent utility. In contrast, component parts of a grant or a
multi-phase project that depend upon other projects, phases, stages, or
segments of the project do not have independent utility.\8\
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\8\ See 40 CFR 1501.9(e) and 1502.4 (Mentioning the concept of
``connected actions'' and ``unconnected single actions.'').
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When a Federal action is divided and analyzed into smaller separate
components it is known as ``segmentation.'' \9\ When an agency
intentionally attempts to affect the NEPA analysis by dividing a
Federal action into smaller components in order to allow those smaller
components to avoid studying the overall impacts of the single project,
improper segmentation has occurred.\10\ Furthermore, until an agency
issues a NEPA determination for the single project, any action taken
for component parts would limit the choice of reasonable alternatives
and could prejudice the ultimate NEPA decision (40 CFR 1506.1). Thus,
it is unlawful for all agencies, including NTIA, to evade their
responsibilities under NEPA by artificially dividing a major Federal
action into smaller components, each without significant impact.
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\9\ West Chicago, IL. v. U.S. Nuclear Regulatory Commission, 701
F.2d at 650 (7th Cir. 1983).
\10\ O'Reilly v. U.S. Army Corps of Engineers, 950 F.2d 1129
(5th Cir. 2007).
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Remove the Requirement for Draft EAs and EISs To Be Submitted and
Reviewed and the Public Comment Period for EAs
Comment: Several commenters suggested that NTIA should remove the
requirement for Draft EAs and EISs to be submitted and reviewed as it
adds an additional layer of review and time to the environmental review
process. One commenter suggested that NTIA should not utilize a formal
public notice and comment cycle unless the project is similar to one
that normally needs an EIS or is unprecedented.
Response: CEQ regulations are clear that an EIS is a two-stage
process that requires agencies to publish a Draft EIS (40 CFR 1502.9).
NTIA has historically required notice of EAs to allow for public
comment, consistent with NEPA's commitment to transparency and public
involvement. NTIA has elected to follow FirstNet's NEPA implementing
procedures and will consider all procedural comments in developing its
final NEPA implementing procedures after CEQ concludes its rulemaking
process.
Streamline NHPA Process
Comment: Several commenters suggested that NTIA should streamline
its process for compliance with section 106 of the National Historic
Preservation Act (NHPA). They noted that through program alternatives
and/or adoption of other agencies' processes, NHPA review could also be
streamlined to avoid redundancies and delays.
Response: NEPA and NHPA are separate statutes. While CEs are not
applicable to section 106 reviews, the Advisory Council on Historic
Preservation (ACHP) NHPA implementing regulations allow for ``program
alternatives'' that can improve the effectiveness and efficiency of the
standard section 106 process and streamline routine reviews while
focusing effort on the more complex projects or historic properties
most important to communities.\11\ The ACHP has issued several program
alternatives for telecommunications projects that apply to NTIA grant
funded activities.
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\11\ 36 CFR 800.14.
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NTIA currently applies the ACHP's Program Comment for Streamlining
Section 106 Review for Wireless Communications Facilities Construction
and Modification Subject to Review Under the FCC Nationwide
Programmatic Agreement to eliminate the duplicative section 106 review
of facilities licensed or approved by the FCC.
In addition, NTIA requested that the ACHP amend the Program Comment
for Communications Projects on Federal Lands and Property to expand its
availability beyond public lands and establish it as the section 106
review process for all broadband projects. On March 14, 2024, in
response to NTIA's request, the ACHP announced an amendment that makes
the provisions of the 2017 program comment, which establishes
streamlined historic preservation permitting rules for
[[Page 22692]]
communications infrastructure projects on Federal lands, available to
all Internet for All programs and broadband projects from all Federal
agencies, both on and off Federal lands.\12\
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\12\ ACHP Announces Program Comment Amendment to Support
President Biden's Broadband Initiative, Mar. 14, 2024, available at,
ACHP Announces Program Comment Amendment to Support President
Biden's Broadband Initiative [verbar] Advisory Council on Historic
Preservation.
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NTIA recognizes its obligations to conduct meaningful consultation
with State Historic Preservation Offices,\13\ Tribal Historic
Preservation Offices,\14\ federally recognized Tribes,\15\ and the
public \16\ and will continue to work with the ACHP and consulting
parties to streamline its processes and create efficiencies that
eliminate section 106 duplication and redundances while appropriately
taking historic preservation into account.
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\13\ 36 CFR 800.2(c)(1).
\14\ 36 CFR 800.2(c)(2)(i)(A).
\15\ 36 CFR 800.2(c)(2)(i)(B) and (c)(2)(ii), and 36 CFR
800.4(a)(4).
\16\ 36 CFR 800.2(c)(5) and (d).
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Proposed CEs Should Not Change Once NTIA Finalizes Its Implementing
Procedures
Comment: One commenter urged that NTIA not alter the proposed CEs
once NTIA is able to draft and finalize its own NEPA implementing
procedures.
Response: While the use of the FirstNet Authority's NEPA
implementing procedures will be interim until CEQ completes its
rulemaking process and NTIA establishes final NEPA implementing
procedures, NTIA considers these CEs final and does not intend to
modify these newly established CEs in the near future.
NTIA Should Maintain Other Applicable Department of Commerce CEs
Comment: One commenter noted that the Department of Commerce has
CEs that are available to NTIA, several of which are applicable to
broadband deployments, and NTIA should continue to use those CEs when
helpful. Several commenters noted the applicability of FirstNet CEs to
NTIA actions and requested that NTIA maintain consistency in its
approach, including for extraordinary circumstances.
Response: NTIA is currently using the Department's CEs to execute
its programs. NTIA also made limited changes to the text of the
proposed CEs to align them with the FirstNet CEs. While this Notice
establishes new CEs, in so doing, NTIA clarifies that Departmental CEs
remain applicable to NTIA programs and that it may adopt or establish
additional CEs through separate and subsequent processes.
Ensure That NTIA's CEs Reflect That Wireless Deployment Is Different
Than Wireline
Comment: One commenter noted FirstNet's charge to build a wireless
broadband network and urged NTIA to ensure that its final CEs
explicitly and unequivocally contemplate the installation of wireline
infrastructure, as wireless backhaul and wireline networks are
different.
Response: NTIA recognizes this point of clarification and the
differences between wireless backhaul and a wireline network. NTIA's
CEs address the full range of the agency's administrative, real
property/facility, and operational activities and are intended to apply
to broadband networks that are fiber, wireless, or a combination of the
two. In response to this comment, NTIA made minor modifications to CEs
C-4 and C-8 (originally proposed as C-9). While this Notice establishes
new CEs, NTIA clarifies that Departmental CEs remain applicable to NTIA
programs and that it may adopt or establish additional CEs through
separate and subsequent processes.
Create CE for Two-Way Dispatch Communications for Critical
Infrastructure Industry
Comment: One commenter suggested that NTIA should consider a CE for
commercial service providers that offer primarily two-way dispatch
communications for the critical infrastructure industry.
Response: NTIA has determined that CEs B-5 and C-7 are broad enough
to support the telecommunication towers, antennas, and support/
associated equipment required for such deployment; therefore, no
additional specific CE is required.
Clarify CE C-8 (Originally Proposed as C-9) Applicability and Remove
Caveat Regarding Existing ROWs
Comment: Several commenters requested that NTIA clarify whether CE
C-8 applies to aerial and buried fiber construction. Additionally, some
commenters suggested that restricting the CE's applicability to
construction within existing ROWs was unduly burdensome.
Response: NTIA intends for CE C-8 to apply to both aerial and
buried fiber optic construction. NTIA could apply this CE either to
direct or grant-funded actions for such activities as fiber
installation through trenching, vibratory plowing, or directional
boring, installation of fiber or cable into existing conduit, and
aerial fiber or cable deployment. For clarity, NTIA has edited CE C-8
to read as follows: ``Acquisition, installation, reconstruction, repair
by replacement, and operation of aerial or buried utility (e.g., water,
sewer, electrical), communication (e.g., fiber optic cable, data
processing cable and similar electronic equipment), and security
systems that use existing rights-of-way, easements, grants of license,
distribution systems, facilities, or similar arrangements.''
NTIA has generated a substantial record of past analyses supporting
the conclusion that sensitive resources are unlikely to occur within
``existing rights-of-way, easements, grants of license, distribution
systems, facilities, or similar arrangements'' that are presumably
previously disturbed and regularly maintained, and thus potentially
significant impacts to sensitive resources within these corridors is
unlikely. In joint comments, the Rural Broadband Association and the
National Rural Electric Cooperative Association noted that the
deployment of wireline broadband networks typically include buried and
aerial fiber optic cable ``in rights-of-way or easements,''
substantiating that these CEs should apply in most cases.
Extraordinary Circumstances Are Vague and Will Force Most Projects Into
an EA
Comment: Several commenters requested that NTIA provide more
concrete parameters for extraordinary circumstances and objected to the
``reasonable likelihood'' standard as vague.
Response: Consistent with 40 CFR 1501.4(b) of CEQ regulations, when
considering applying a CE NTIA is required to evaluate an action for
circumstances in which a normally excluded action may have a
significant effect. In response to comments, NTIA considered the need
for grant recipients to clearly understand extraordinary circumstances
in order to be able to identify and avoid them in project planning and
made clarifying edits and modified the language to remove ``reasonable
likelihood'' references. Extraordinary circumstance 8 was further
edited to clarify that it would not apply to an action taken in
proximity to a hazardous waste site or involving the handling of
hazardous substances if NTIA determines the action is consistent with
an approved remediation plan. NTIA also agrees that extraordinary
circumstance 9 should comport with established and industry-
[[Page 22693]]
recognized FCC exposure limits. The revised extraordinary circumstance
9 states, ``Reasonable likelihood that the proposed action would
involve human exposure to ionizing or non-ionizing radiation or use of
any radiation in excess of the Federal Communications Commission's
established Maximum Permissible Exposure limits for human exposure to
Radiofrequency Electromagnetic Energy fields.''
Clarify the Low-Income and Minority Community Provision in
Extraordinary Circumstance 7
Comment: Two commenters suggested that NTIA should clarify how
grantees should analyze extraordinary circumstance 7 concerning low-
income and minority communities, since, by its nature, an increase in
broadband availability is a positive impact to low-income and minority
communities.
Response: As a point of clarification, NTIA's CEs are intended to
encompass the entirety of NTIA's actions, short- and long-term and
across business units, beyond IIJA. The Low-Income and Minority
Community provision in extraordinary circumstance 7 is directly related
to the concept of environmental justice as memorialized in Executive
Order (E.O.) 12898 and section 3(a)(ix) of E.O. 14096, Revitalizing Our
Nation's Commitment to Environmental Justice (April 2023) that
reinforces and codifies longstanding Federal agency practice regarding
environmental justice and NEPA. Environmental justice impacts and
analyses could differ across different projects and programs.\17\
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\17\ For further guidance, see CEQ's Environmental Justice:
Guidance Under the National Environmental Policy Act, and EPA's
Promising Practices for EJ Methodologies in NEPA Reviews.
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Given the BEAD program's likely benefits to communities with
environmental justice concerns, addressing this extraordinary
circumstance can be accomplished with a fairly simple analysis of the
demographics of the community within the project area and an
explanation of how that community would benefit from the project. (Such
benefits would not discount an extraordinary circumstance giving rise
to the potential of significant effects, which would require an EA or
EIS). NTIA has provided and will continue to make available examples of
previous projects that have received NTIA grants to demonstrate the
level of environmental analysis required for this extraordinary
circumstance.
III. Revisions to Specific Categorical Exclusions
NTIA is not including in this Notice the CEs proposed as B-5 and C-
8 because the actions they cover are encompassed by existing
Department-wide CEs. In addition, NTIA has responded to comments on the
proposed set of CEs and list of extraordinary circumstances by
incorporating the following seven clarifications to specific CEs and
framing modifications that affect all 13 extraordinary circumstances.
B-6 (originally proposed as B-7): In response to comments
expressing support for the existing Department CEs, including FirstNet
CEs, NTIA clarifies that Departmental CEs remain applicable to NTIA
programs. NTIA made an editorial change removing the qualifier ``space
within'' existing facilities to ensure that B-7 is consistent with the
existing FirstNet CE A-4 and because this qualifier does not provide
any additional information about how NTIA may apply the CE.
C-4: In response to comments expressing support for the existing
Department CEs, including FirstNet CEs, NTIA clarifies that
Departmental CEs remain applicable to NTIA programs. NTIA made changes
to promote consistency between these rules, including ensuring that
improvements of land remain covered and that, consistent with the
Department's A-2, actions taking place in a developed area may be
categorically excluded where no extraordinary circumstances apply. NTIA
also clarified that this CE is applicable to both wired and wireless
facilities.
C-5: This CE is established as originally proposed with minor
editorial changes.
C-8 (originally proposed as C-9): In response to comments
requesting that NTIA clarify that CE C-8 included both wireline and
wireless infrastructure, NTIA has specified its applicability to both
aerial and buried utilities, equipment, and systems.
Extraordinary Circumstances (General). In response to multiple
comments identifying concerns that the ``reasonable likelihood''
measure was overly broad, vague, and subjective, NTIA modified the
language to promote clarity and facilitate the assessment of how these
13 factors apply to otherwise categorically excluded actions.
EC-8: NTIA removed the qualifiers ``unmitigable'' (construction
impacts) and ``non-permittable'' (generation) to clarify that CEs are
not presumed to apply to actions involving contaminated or hazardous
waste sites or substances.
IV. Final Categorical Exclusions and Extraordinary Circumstances
Categorical Exclusions
Administrative Actions
A-1: Personnel, fiscal, management, and administrative activities,
including recruiting, processing, paying, recordkeeping, budgeting,
personnel actions, contract administration, and travel.
A-2: Preparation, modification, and issuance of policy directives,
rules, regulations, procedures, guidelines, guidance documents,
bulletins, and informational publications that are of an
administrative, financial, legal, technical, or procedural nature, for
which the environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will be, in
whole or part, subject later to the NEPA process, either collectively
or on a case-by-case basis.
A-3: Studies and engineering undertaken to define proposed actions
or alternatives sufficiently so that environmental effects can be
assessed.
A-4: Planning, educational, informational, or advisory activities
provided to other agencies, public and private entities, visitors,
individuals, or the public, including training exercises and
simulations conducted under appropriately controlled conditions and in
accordance with all applicable laws, regulations, and requirements.
A-5: Software development, data analysis, or testing that does not
involve ground disturbing activities.
A-6: Preparation and dissemination of scientific results, studies,
surveys, audits, reports, plans, papers, recommendations, and technical
advice.
A-7: Technical assistance to other Federal, Tribal, State, and
local agencies or the public.
A-8: Routine procurement, use, storage, transportation, and
disposal of non-hazardous goods and services in support of
administrative, operational, or maintenance activities in accordance
with Executive Orders and Federal procurement guidelines. Examples
include office supplies and furniture; equipment; mobile assets (i.e.,
vehicles, vessels, aircraft); utility services; and deployable
emergency response supplies and equipment.
A-9: Purchase of deployable mobile and portable telecommunications
equipment (e.g., radios, Cell on Wheels, Cell on Light Truck, System on
Wheels) that will be housed in existing facilities when not deployed.
A-10: Routine use of hazardous materials (including procurement,
transportation, distribution, and storage
[[Page 22694]]
of such materials) and reuse, recycling, and disposal of solid,
medical, radiological, or hazardous waste in a manner that is
consistent with all applicable laws, regulations, and requirements.
Examples include use of chemicals for laboratory applications;
refueling of storage tanks; temporary storage and disposal of solid
waste; disposal of waste through manufacturer return and recycling
programs; and hazardous waste minimization activities, including source
reduction activities and recycling.
A-11: Reductions, realignments, or relocation of personnel,
equipment, or mobile assets that do not result in changing the use of
NTIA facilities or space in such a way that could cause a change to
existing environmental effects or exceed the infrastructure capacity
outside of NTIA-managed property. An example of exceeding the
infrastructure capacity would be an increase in vehicular traffic
beyond the capacity of the supporting road network to accommodate such
an increase.
A-12: Federal assistance, grants, and external funding for
activities that do not concern environmental matters or where the
environmental effects are negligible. Examples of relevant activities
could include, but are not limited to, planning, studies, or programs
such as the Digital TV transition, which provided rebates to consumers
to subsidize the purchase of digital antennas, that have no potential
to impact the environment. If an analysis determines that such
activities have the potential to impact the environment, the CE cannot
be applied.
A-13: Contracts, collaborative research agreements, cooperative
research and development agreements, interagency agreements, and other
agreements that do not concern environmental matters or where the
environmental effects are negligible.
Real Property/Facility Actions
B-1: Maintenance of facilities, equipment, and grounds. Examples
include interior utility work, road maintenance, window washing, lawn
mowing, landscaping, weed management/maintenance, trash collecting,
facility cleaning, and snow removal.
B-2: Internal modifications, renovations, or additions (e.g.,
computer facilities, relocating interior walls) to structures or
buildings that do not result in a change in the functional use of the
property.
B-3: Exterior renovation, addition, repair, alteration, and
demolition projects affecting buildings, roads, grounds, equipment, and
other facilities, including subsequent disposal of debris, which may be
contaminated with hazardous materials, lead, or asbestos. Hazardous
materials must be disposed of at approved sites in accordance with all
applicable laws, regulations, and requirements. Examples include the
following:
(i) Painting, roofing, siding, or alterations to an existing
building;
(ii) Adding a small storage shed to an existing building;
(iii) Retrofitting for energy conservation, including
weatherization, installation of timers on hot water heaters,
installation of energy efficient lighting, and installation of low-flow
plumbing fixtures; or
(iv) Closing and demolishing a building not eligible for listing
under the National Register for Historic Places.
B-4: Abatement of hazardous materials from existing facilities,
including asbestos and lead-based paint, conducted in compliance with
all applicable laws, regulations, and requirements established for the
protection of human health and the environment. Examples include
containment, removal, and disposal of lead-based paint or asbestos
tiles and asbestos-containing materials from existing facilities; and
remediation of hazardous materials in accordance with all applicable
laws, regulations, and requirements as part of facility and space
management activities.
B-5: Proposed new activities and operations conducted in an
existing structure that would be consistent with previously established
safety levels and would not result in a change in use of the facility.
Examples include new types of research, development, testing, and
evaluation activities and laboratory operations conducted within
existing enclosed facilities designed to support research and
development activities.
B-6: Acquisition or use of existing facilities or portion thereof
by purchase, lease, or use agreement where use or operation will remain
unchanged. Examples include acquiring office or laboratory space
through lease, purchase, or use agreement.
B-7: Transfer of administrative control over real property,
including related personal property, between another Federal agency and
NTIA that does not result in a change in the functional use of the
property. Examples include transfer of facilities for use by NTIA and
transfers of computer equipment, office equipment, and personal
property, including laptops and cell phones.
B-8: Decisions and actions to close facilities, decommission
equipment, or temporarily discontinue use of facilities or equipment
where the facility or equipment, including office equipment,
telecommunications equipment, and computer equipment, is not used to
prevent or control environmental impacts.
B-9: The determination and disposal of real property, such as
excess office space, or personal property, including laptops and cell
phones, that is excess to the needs of NTIA when the real property or
personal property is excessed in conformity with applicable General
Services Administration procedures or is statutorily authorized to be
excessed.
Operational Actions
C-1: Research activities conducted in laboratories and facilities
where research practices and safeguards prevent environmental impacts.
Examples include types of research, development, testing, and
evaluation activities, and laboratory operations conducted within
existing enclosed facilities designed to support research and
development activities.
C-2: Outdoor research activities conducted in compliance with all
applicable laws, regulations, and requirements. Examples include types
of research, development, testing, and evaluation activities conducted
outdoors where no new ground disturbance occurs and no sensitive
resources (e.g., threatened or endangered species, archaeological
sites, Tribal resources, wetlands, and waterbodies) are present, such
as radar testing, radio noise measurements, and public safety
communications research.
C-3: Periodic flight activities for training and research and
development that are routine and comply with all applicable laws,
Federal Aviation Administration regulations, and other requirements.
C-4: New construction or improvement of land, operations, or
support facilities, switching stations, maintenance facilities, and
other non-tower structures supporting wired or wireless communications
systems in a developed area and/or on previously disturbed ground with
no more than 1 acre (0.4 hectare) of ground disturbance where the
proposed facility use is generally compatible with the surrounding land
use and applicable zoning standards and will not require additional
support infrastructure.
C-5: Installing, operating, maintaining, retrofitting, upgrading,
repairing, removing, and/or replacement of existing microwave or radio
communication towers, instruments, structures, or buildings that do not
require ground disturbance outside of
[[Page 22695]]
the original footprint, including installing or collocating equipment
such as antennas, microwave dishes, or power units. For communications
towers at or below 199 feet, renovations and equipment additions must
not cause the total height of the tower to exceed 199 feet. Existing
structures must not be eligible for listing in the National Register of
Historic Places.\18\
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\18\ In response to comments expressing support for existing
Departmental CEs including those of FirstNet, NTIA notes that
establishment of these new CEs does not preclude the use of
Departmental or other CEs that may be otherwise available to NTIA
where they apply to a proposed action. Two existing Department of
Commerce CEs (the Department's A-4 and FirstNet's B-7) may be
applicable to related actions. Commerce's A-4 covers Siting,
construction, operation, and maintenance of microwave/radio
communication towers less than 200 feet in height without guy wires
on previously disturbed ground. FirstNet's B-7 covers Changes or
additions, including retrofit and upgrade, to telecommunications
sites, towers under 200 feet, 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).
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C-6: New construction or improvement of temporary buildings or
experimental equipment (e.g., trailers, prefabricated buildings, and
test slabs) on previously disturbed ground, with no more than 1 acre
(0.4 hectare) of ground disturbance, where the proposed facility use is
generally compatible with the surrounding land use and applicable
zoning standards and will not require additional support
infrastructure.
C-7: New construction of self-supporting (e.g., monopole or
lattice) wireless communication towers at or below 199 feet with no guy
wires that require less than 1 acre (0.4 hectare) of ground disturbance
and where another Federal agency would not require an EA or EIS for its
acquisition, installation, operations, or maintenance.
C-8: Acquisition, installation, reconstruction, repair by
replacement, and operation of aerial or buried utility (e.g., water,
sewer, electrical), communication (e.g., fiber optic cable, data
processing cable and similar electronic equipment), and security
systems that use existing rights-of-way, easements, grants of license,
distribution systems, facilities, or similar arrangements.\19\
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\19\ In response to comments expressing support for existing
Departmental CEs including those of FirstNet, NTIA notes that
establishment of these new CEs does not preclude the use of
Departmental or other CEs that may be otherwise available to NTIA
where they apply to proposed actions involving buried and aerial
lines, cables, and related facilities.
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Extraordinary Circumstances
Extraordinary Circumstances that may preclude the use of a CE
include:
1. Proposed action occurs within an environmentally sensitive or
unique \20\ geographic area of notable recreational, ecological,
scientific, cultural, scenic, or aesthetic importance.
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\20\ ``Environmentally sensitive or unique'' resources and areas
may include: federal lands; areas having special designation or
recognition such as prime or unique or agricultural lands;
designated wilderness or wilderness study areas; wild and scenic
rivers; coastal zones; National Wildlife Refuges; National Parks;
areas of critical environmental concern; or other areas of high
environmental sensitivity.
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2. Proposed action may adversely impact species listed or proposed
to be listed as endangered or threatened or have adverse effects on
designated critical habitat for these species.
3. Proposed action may adversely impact protected migratory birds
or their habitats.
4. Proposed action may adversely affect historic, archeological, or
cultural sites, including Native American Traditional Cultural
Properties, and properties listed or eligible for listing on the
National Register of Historic Places.
5. Proposed action restricts access to and ceremonial use of Indian
sacred sites by Indian practitioners or adversely affects the physical
integrity of such religious sacred sites.
6. Proposed action occurs in floodplains or involves significant
changes to or effects on waterbodies, wetlands, floodplains, water
quality, sole source aquifers, public water supply systems, or State,
local, or Tribal water quality standards established under the Clean
Water Act or the Safe Drinking Water Act.
7. Proposed action may have a disproportionate and adverse human
health or environmental effect \21\ on low-income populations, minority
populations, or other communities with environmental justice concerns.
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\21\ E.O. 14096 section 3(i).
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8. Proposed action involving construction impacts on or near an
active, inactive, or abandoned contaminated or hazardous waste site, or
involving non-permitted generation, transportation, treatment, storage,
or disposal of substances hazardous to human health or the environment,
unless NTIA determines the action is consistent with an approved
remediation plan for the site.
9. Proposed action would involve human exposure to ionizing or non-
ionizing radiation or use of any radiation in excess of the Federal
Communications Commission's established Maximum Permissible Exposure
limits for human exposure to Radiofrequency Electromagnetic Energy
fields.
10. Proposed action is controversial because of the introduction or
employment of unproven technology, highly scientifically uncertain or
unique environmental effects, substantial disagreement over the
possible size, nature, or effect on the environment, or likelihood of
degrading already existing poor environmental conditions.
11. Proposed action may violate a federal, Tribal, state, or local
law, regulation, policy, or requirement imposed for the protection of
the environment.
12. Proposed size or scope of action is greater than is normal for
an action of its type.
13. Proposed action may cause other significant effects on human
health or the environment that have not been otherwise addressed.
Dated: March 26, 2024.
Sean Conway,
Acting Chief Counsel, National Telecommunications and Information
Administration.
[FR Doc. 2024-06751 Filed 4-1-24; 8:45 am]
BILLING CODE 3510-60-P