[Federal Register Volume 74, Number 196 (Tuesday, October 13, 2009)]
[Notices]
[Pages 52456-52459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24606]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket No. 0906221081-91339-02]
RIN 0648-XA10


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

AGENCY: National Telecommunications and Information Administration, 
Commerce.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The National Telecommunications and Information Administration 
(NTIA), U.S. Department of Commerce (DOC) publishes these Categorical 
Exclusions (CEs) of actions that the agency has determined do not 
individually or cumulatively have a significant effect on the human 
environment and thus, should be categorically excluded from the 
requirement to prepare an environmental assessment or environmental 
impact statement under the National Environmental Policy Act. These CEs 
are intended to cover only the Broadband Technology Opportunities 
Program (BTOP).

DATES: This notice is implemented October 13, 2009.

ADDRESSES: This notice and the Administrative Record for the NTIA 
Broadband Technology Opportunities Program categorical exclusions are 
available at: http://www.nepa.noaa.gov/procedures.html under ``NTIA 
Broadband Technology Opportunities Program Categorical Exclusions and 
Administrative Record''. Written requests for a hard copy of the ``NTIA 
Broadband Technology Opportunities 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: 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

[[Page 52457]]

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 the Council on Environmental Quality (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, 2009, the Department of Commerce published a notice in 
the Federal Register requesting comments on proposed Department-wide 
CEs (74 FR 24782). On July 10, 2009, the Department of Commerce 
published a notice in the Federal Register of final Department-wide CEs 
(74 FR 33204).
    Although some of the CE's outlined in the DOC-wide CE notice are 
applicable to BTOP, it was determined in consultation with CEQ that the 
existing NEPA requirements and the CEs of the U.S. Department of 
Agriculture, Rural Utilities Services' (RUS) Telecommunication Program 
would serve as a better template for BTOP and the RUS Broadband 
Initiatives Program (BIP). Therefore, it was determined that 
similarities between the two programs suggested that an alignment of 
the requirements documents and applicable CEs would streamline the 
application process and reduce confusion for applicants and future BTOP 
decisions.
    Accordingly, NTIA published a notice in the Federal Register on 
July 9, 2009 of BTOP-specific CEs (74 FR 32876) and requested comments 
from the public on the appropriateness and scope of the CEs. The public 
comment period ended on August 10, 2009. NTIA received three comments 
representing one private citizen and two organizations. NTIA fully 
considered all of the comments and provides the responses in the 
Comments and Agency Response section below.

II. Comments and Agency Responses

Comment <greek-i>1

    The National Audubon Society (NAS) expressed concern that the 
proposed categorical exclusion for facilities would allow the 
construction of communication towers without appropriate environmental 
review, thus ``unnecessarily sacrificing the safety of avian wildlife, 
their habitats, and the environment.'' The NAS commented that ``the 
proposed categorical exclusions for BTOP projects include exclusions 
for guyed towers and towers up to 400 feet in height with no findings 
regarding their individual or cumulative impacts.'' The NAS commented 
that the administrative record does not support the CE for towers.

Agency Response

    The list of BTOP CEs published on July 9, 2009 (74 FR 32876) did 
not include a specific CE for communication towers. The language that 
the NAS quotes in its comment is from the ``Background'' section of the 
document and was a general statement about the types of projects BTOP/
BIP might fund. NTIA never intended the statement to be used to justify 
the use of a CE for these types of communication towers.
    BTOP, however, does have an option for utilizing a CE for certain 
specific communications towers. The Department of Commerce published on 
July 10, 2009 (74 FR 33204) a final list of CEs available for use by 
all DOC Operating Units. That list included a CE for communication 
towers with specific limitations on tower height and guy wires: ``A-4 
Siting/construction/operation of microwave/radio communication towers 
less than 200 feet in height without guy wires on previously disturbed 
ground.'' This CE did not receive a single public comment from the 
Federal Register notice on draft CEs published for comment on May 26, 
2009. Accordingly, NTIA would only issue a CE for a tower less than 200 
feet in height without guy wires on previously disturbed ground. Any 
NTIA BTOP project that proposes to construct a tower greater than 200 
feet in height would require additional environmental documentation, 
which includes the preparation of an Environmental Assessment or an 
Environmental Impact Statement. References to the administrative record 
for CEs for towers less than 200 feet without guy wires were included 
in the July 10, 2009 notice and are not repeated here.

Comment <greek-i>2

    The Kodiak Kenai Cable Company commented that NTIA should consider 
expanding Categorical Exclusion B.1, which covers ``construction of 
buried and aerial telecommunications lines, cables, and related 
facilities'' to include submarine cables. The commenter noted that many 
underserved areas in Alaska are on remote islands where the only 
practical means of providing broadband access is with submarine cables. 
According to the commenter, the Army Corps of Engineers (COE) conducted 
an environmental assessment and issued a finding of no significant 
impact for a Nationwide Permit (NWP 12) involving ``the construction, 
maintenance, repair, and removal of utility lines and associated 
facilities in waters of the U.S.'', which are similar in nature to 
projects involving submarine cables.

Agency Response

    At this time, NTIA does not have the necessary administrative 
record to add a CE for submarine cables, however, NTIA will consider 
the background information provided by the commenter regarding the COE 
NWP 12 in developing any future amendments to the BTOP CEs.

Comment <greek-i>3

    NTIA should consider a CE for Adirondack Park. Current siting 
procedures make it difficult to obtain broadband access and wireless 
communication services in rural areas of upstate New York, thus 
hindering the ability to communicate with residents and emergency 
management systems.

Agency Response

    Categorical exclusions are intended to exempt certain activities, 
rather than specific locations, from further environmental review. 
Categorical exclusions apply to a range of activities that have been 
shown, individually or cumulatively, not to create significant 
environmental impacts on the human or natural environment. In addition, 
in order to qualify for a CE, a project must comply with all state and 
local laws and regulations. It is incumbent upon the applicant to 
demonstrate that the project qualifies for a CE. Thus, if Adirondack 
Park has certain restrictions on siting of broadband or wireless 
services, then the applicant would need to address those concerns 
before the project would qualify for a CE and receive funding.

III. 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

[[Page 52458]]

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 the 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 the 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 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. NTIA 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 Service. 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

[[Page 52459]]

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 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.

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.

Environmental Impact

    These procedures supplement 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: October 5, 2009.
Paul N. Doremus,
NOAA NEPA Coordinator, Office of Program Planning and Integration.
[FR Doc. E9-24606 Filed 10-9-09; 8:45 am]
BILLING CODE 3510-12-S