[Federal Register Volume 74, Number 131 (Friday, July 10, 2009)]
[Notices]
[Pages 33204-33207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16394]


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DEPARTMENT OF COMMERCE

[Docket No. 090520919-91106-02]
RIN 0648-XP44


National Environmental Policy Act-- Categorical Exclusions

AGENCY: U.S. Department of Commerce.

ACTION: Notice.

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SUMMARY: The 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.

DATES: This notice is effective July 10, 2009.

ADDRESSES: This notice and the Department of Commerce Administrative 
Record for the Categorical Exclusions is available at: http://www.nepa.noaa.gov/procedures.html under ``Department of Commerce 
Administrative Record and Categorical Exclusions.''

FOR FURTHER INFORMATION CONTACT: Written requests for a hard copy of 
the ``Department of Commerce Administrative Record and Categorical 
Exclusions'' should be submitted to: Steve Kokkinakis, National Oceanic 
and Atmospheric Administration (NOAA), 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

    The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.) requires that Federal agencies prepare environmental impact 
statements for major Federal actions that may ``significantly affect 
the quality of the human environment.'' NEPA requirements apply to any 
Federal project, decision, or action, including grants that might have 
a significant impact on the quality of the human environment. NEPA also 
established the Council on Environmental Quality (CEQ), which issued 
regulations implementing the procedural provisions of NEPA. Among other 
considerations, the CEQ regulations require Federal agencies to adopt 
their own implementing procedures to supplement the Council's 
regulations, and to establish and use Categorical

[[Page 33205]]

Exclusions (CEs) 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. The need for Department-wide CEs was 
identified during recent efforts to standardize policy and procedures 
for all Department of Commerce grant and cooperative agreement 
programs.
    The Department of Commerce published a request for public comments 
on Department-wide CEs in the Federal Register on May 26, 2009 (74 FR 
24782). The public comment was invited for a 20-day period ending on 
June 15, 2009. Three comments were received representing 1 
organization, 1 individual, and a Federal agency. All comments were 
fully considered and in fact many recommendations were adopted in this 
final notice. Every effort has been made to respond in detail to every 
question raised or suggestion offered.

II. Comments and Agency Response

Comment <greek-i>1

    The National Association of Home Builders (NAHB) commented that 
they ``soundly supports the categorical exclusions proposed by DOC and 
encourages the agency to largely finalize them as proposed.'' 
Furthermore, NAHB ``applauds the broad scope of this proposed 
categorical exclusion (A-1, Minor Renovations and Additions) and urges 
its finalization.'' With reference to Categorical Exclusion A-2, New 
Construction Upon or Improvement of Land, NAHB a clarification was 
asked regarding the terms ``developed area or previously disturbed 
site'' and construction ``are consistent with those of existing, 
adjacent, or nearby buildings''. Additionally, with regard to 
Categorical Exclusion A-2, NAHB requests that the Department reconsider 
the use of a Record of Environmental Consideration as being unnecessary 
and adding to the amount of paperwork required to comply with NEPA 
regulations. NAHB further suggests that the use of an Environmental 
Checklist would help identify those projects with potential impacts 
early in the process and would not penalize all project proponents.

Agency Response

    The terms ``developed area and previously disturbed site'' and 
``The site and scale of construction or improvement are consistent with 
those of existing, adjacent, or nearby buildings'' found in Categorical 
Exclusion A-2 New Construction Upon or Improvement of Land is deemed by 
the Department to be sufficiently descriptive to determine the 
appropriate use of this Categorical Exclusion. Please also note that 
the terms are contained in the legacy categorical exclusions are used 
by the U.S. Coast Guard and the Federal Emergency Management Agency.
    To clarify the Department's use of a Record of Environmental 
Consideration (REC), the REC is a signed statement submitted with 
project documentation that briefly documents that a proposed action has 
received environmental review. It is the minimal level of documentation 
needed to ensure a Categorical Exclusion is appropriate for the 
project. When used to support a Categorical Exclusion, the REC will 
include the Department's environmental checklist and will provide 
verification that no extraordinary circumstances exist that may 
invalidate the use of the Categorical Exclusion. It is not envisioned 
to duplicate documentation that would be available elsewhere and as 
such does not add additional paperwork to the process.
    The Department agreed with NAHB's assessment that an environmental 
checklist would add value to the NEPA process and is in the process of 
finalizing that document at this time. The environmental checklist will 
assist the Department in determining if there are any extraordinary 
circumstances that would preclude the use of the Categorical Exclusion 
and what level of NEPA documentation would be required. The completed 
checklist will be appended to the Department's Record of Consideration 
at the conclusion of the Office of Management and Budget's review and a 
Notice of Action will be published in the Federal Register announcing 
the approval of the information collection.

Comment <greek-i>2

    The National Capital Planning Commission (NCPC) requested a 
modification to three proposed categorical exclusions.

Agency Response

    DOC agrees with the comment and has inserted the suggested language 
into the three Categorical Exclusions identified by NCPC.

Comment <greek-i>3

    The Department also received a comment from an individual that 
disagreed with changing NEPA in any way and does not favor any changes 
proposed by the Department.

Agency Response

    Comment Noted. The Department does not propose to change NEPA and 
issuing the CEs in accordance with NEPA.

III. Department of Commerce Categorical Exclusions

    The Department adopts the following CEs and amends the Department 
Administrative Order 216-6, ``Implementing the National Environmental 
Policy Act'' to include the following CEs. The Department also amends 
the DAO to require that all projects involving a Federal action will be 
required to complete the ``Departmental NEPA Checklist.'' The 
Departmental NEPA Checklist will assist the Department in determining 
the appropriate level of NEPA documentation. The Departmental NEPA 
Checklist is available at http://www.nepa.noaa.gov/procedures.html 
under ``Department of Commerce NEPA Checklist.'' The checklist is 
divided into two sections. Section One is to be completed for those 
projects that have historically been shown to not create significant 
environmental impacts to the human or natural environment. Projects 
consisting solely of administrative or personnel actions, production of 
informational materials, purchase of electronic equipment for use in 
existing buildings, and minor interior renovations are subject to 
Section One of the checklist. Section Two is to be complete for those 
projects involving ground disturbance or that have the potential for 
significant impacts to the human or natural environment. Any project 
required to fill out Section Two that receives a ``YES'' answer in any 
category is not permitted to use a CE and will be required to prepare 
an Environmental Assessment (EA) or an Environmental Impact Statement 
(EIS) as appropriate. Moreover, the National Historic Preservation Act 
requirements still apply to all applicable projects. The use of these 
CEs does not constitute a release from Section 106 consultation 
requirements.

Department-Wide Categorical Exclusions

    A-1 Minor renovations and additions to buildings, roads, airfields, 
grounds, equipment, and other facilities that do not result in a change 
in the functional use of the real property (e.g. realigning interior 
spaces of an existing building, adding a small storage shed to an 
existing building, retrofitting for energy conservation, or installing 
a small antenna on an already existing antenna tower that does not 
cause the total

[[Page 33206]]

height to exceed 200 feet and where the FCC would not require an 
environmental assessment or environmental impact statement for the 
installation). This CE does not apply in instances where the project 
must be submitted to the National Capital Planning Commission (NCPC) 
for review and NCPC determines that it does not have an applicable 
Categorical Exclusion.
    This CE is supported by long-standing categorical exclusions and 
administrative records. In particular, the review panel identified the 
legacy categorical exclusions and Environmental Assessments from the 
U.S. Department of Agriculture, Federal Emergency Management Agency, 
Federal Aviation Administration, U.S. Coast Guard, U.S. Air Force, and 
the Immigration and Naturalization Services. Further, the review panel 
found that Environmental Assessments of a similar nature, scope, and 
intensity were performed at EDA, NOAA, U.S. Department of Agriculture, 
Federal Law Enforcement Training Center and the U.S. Border Patrol 
without significant environmental impacts.
    A-2 New construction upon or improvement of land where all of the 
following conditions are met:
    (a) The site is in a developed area and/or a previously disturbed 
site,
    (b) The structure and proposed use are compatible with applicable 
Federal, Tribal, State, and local planning and zoning standards and 
consistent with Federally approved State coastal management programs,
    (c) The proposed use will not substantially increase the number of 
motor vehicles at the facility or in the area,
    (d) The site and scale of construction or improvement are 
consistent with those of existing, adjacent, or nearby buildings, and
    (e) The construction or improvement will not result in uses that 
exceed existing support infrastructure capacities (roads, sewer, water, 
parking, etc.).
    This CE does not apply where the project must be submitted to the 
National Capital Planning Commission (NCPC) for review and NCPC 
determines that it does not have an applicable Categorical Exclusion.
    DOC is not a major land managing agency in the Federal government. 
Department activities involving new construction or improvements of 
land typically involve single buildings and supporting infrastructure 
in a single locality. Any potential for environmental impacts would be 
of a small scale and confined to more localized impacts.
    The review panel identified an internal Departmental EA from EDA 
that resulted in a Finding of No Significant Impact and legacy 
categorical exclusions and Findings of No Significant Impact from the 
U.S. Coast Guard, Federal Emergency Management Agency, U.S. Navy, and 
the U.S. Border Patrol. EDA issues construction grants to stimulate 
economic development. Both NOAA and the U.S. Coast Guard manage a large 
number of facilities in sensitive aquatic environments along all 
maritime coasts and several rivers. The National Aeronautics and Space 
Administration has a large number of specialty buildings used to help 
develop and promote the nation's space program. Legacy categorical 
exclusions from the Federal Emergency Management Agency include public 
assistance programs that could be implemented in any part of the United 
States to assist in preparing and recovering from a disaster. 
Additionally, legacy categorical exclusions from the U.S. Navy allow 
minor construction under circumstances identical to those proposed 
under this DOC CE. The U.S. Border Patrol brought a legacy of 
environmental assessments and findings of no significant impact for its 
land based activities. Based upon this extensive history of 
environmental analyses and the experience of its members, the review 
panel found that actions of a similar nature, scope, and intensity were 
performed throughout the Federal government without significant 
environmental impacts.
    Since new construction or improvements on land could involve 
numerous considerations, the review panel took great care to establish 
limiting provisions to avoid the potential for significant impacts to 
the human environment. The following limiting provisions were 
established to both conform to the evidence presented in the 
administrative record, to clarify meaning of those limiting provisions 
found in the administrative record, or to add to or modify limitations 
found in the record based on the experience of the review panel members 
to further avoid the potential for significant impacts to the human 
environment:
    (a) The site is in a developed area and/or a previously disturbed 
site;
    (b) The structure and proposed use are compatible with applicable 
Federal, Tribal, State, and local planning and zoning standards and 
consistent with Federally approved state coastal management programs 
(pursuant to the Coastal Zone Management Act);
    (c) The proposed use will not substantially increase the number of 
motor vehicles at the facility or in the area;
    (d) The site and scale of construction or improvement are 
consistent with those of existing, adjacent, or nearby buildings; and
    (e) The construction or improvement will not result in uses that 
exceed existing support infrastructure capacities (roads, sewer, water, 
parking, etc.).
    As a result of all of these limitations, the review panel 
determined that this Categorical Exclusion contemplated activities that 
would inherently have no potential for significant impacts to the human 
environment.
    The review panel defined this CE to be sufficiently related to 
actions that may involve one or more extraordinary circumstances. To 
ensure that only those actions having negligible impacts on the human 
environment are contemplated by this CE, the review panel proposed that 
a Record of Environmental Consideration be prepared to document the 
determination whether the action is either appropriately categorically 
excluded or whether it requires further analysis through an EA or EIS 
process.
    A-3 Software development, data analysis, or testing, including but 
not limited to computer modeling in existing facilities.
    Research, development, testing, and evaluation activities or 
laboratory operations contemplated by this CE are those that would be 
undertaken within facilities that are operated under stringent 
requirements designed to protect the quality of the human environment. 
As exemplified by documents in the administrative record, these 
requirements include strict operating procedures governing laboratory 
operations and personnel responsibilities. Because of these controls, 
these types of laboratory activities have no potential for significant 
environmental impacts. Further, the Panel found that actions of a 
similar nature, scope, and intensity were performed in laboratories 
throughout the Federal government.
    This CE is supported by long-standing categorical exclusions and 
administrative records. In particular, the review panel identified 
legacy categorical exclusions from Federal Emergency Management Agency, 
U.S. Department of Agriculture, U.S. Department of Energy, the U.S. 
Department of the Interior, and the U.S. Navy. Additionally, the review 
panel identified EAs that resulted in Findings of No Significant Impact 
from NOAA

[[Page 33207]]

and the National Aeronautics and Space Administration.
    A-4 Siting/construction/operation of microwave/radio communication 
towers less than 200 feet in height without guy wires on previously 
disturbed ground.
    DOC, through NTIA is involved in issuing grants for siting, 
construction, operation, and maintenance, communications systems and 
similar electronic equipment. These types of electronic equipment are 
essential to support the nationwide telecommunications network.
    This CE is supported by Findings of No Significant Impact on the 
recently completed Programmatic EA for NTIA and on EAs from the U.S. 
Department of Energy. Furthermore, this CE is supported by long-
standing categorical exclusions from the Federal Emergency Management 
Agency.
    A-5 Retrofit/upgrade existing microwave/radio communication towers 
that do not require ground disturbance.
    This CE is supported by the recently completed Programmatic EA for 
NTIA with a Finding of No Significant Impact and an EA for the National 
Aeronautics and Space Administration, also with a Finding of No 
Significant Impact.
    A-6 Adding fiber optic cable to transmission structures or burying 
fiber optic cable in existing transmission line rights-of-way.
    This CE is supported by a long-standing categorical exclusion with 
the U.S. Department of Energy and Findings of No Significant Impact on 
Environmental Assessments prepared for the Bureau of Land Management, 
Vandenberg Air Force Base, the U.S. Park Service, and the Tennessee 
Valley Authority.
    A-7 Acquisition, installation, operation, and removal of 
communications systems, data processing equipment, and similar 
electronic equipment.
    This CE is supported by a legacy categorical exclusion from the 
U.S. Department of Energy and Findings of No Significant Impact on 
several Description Memorandums from the U.S. Department of Energy.
    A-8 Planning activities and classroom-based training and classroom-
based exercises using existing conference rooms and training 
facilities.
    This CE is supported by a long-standing categorical exclusion with 
the U.S. Department of Energy and a Finding of No Significant Impact on 
an Environmental Assessment from the recently completed Programmatic EA 
for NTIA.
    A-9 Purchase of mobile and portable equipment and infrastructure 
which is stored in previously existing structures or facilities.
    This CE is supported by a long-standing categorical exclusion with 
the U.S. Coast Guard and a Finding of No Significant Impact on an EA 
from the recently completed Programmatic EA for NTIA.
    A-10 Siting, construction (or modification), and operation of 
support buildings and support structures (including, but not limited 
to, trailers and prefabricated buildings) within or contiguous to an 
already developed area (where active utilities and currently used roads 
are readily accessible). This CE does not apply where the project must 
be submitted to the National Capital Planning Commission (NCPC) for 
review and NCPC determines that it does not have an applicable 
Categorical Exclusion.
    This CE is supported by a long-standing categorical exclusion with 
the U.S. Department of Energy and two Memoranda for File for relevant 
projects and their supporting documentation that indicated 
insignificant impacts, also with the U.S. Department of Energy.
    A-11 Personnel, fiscal, management, and administrative activities, 
such as recruiting, processing, paying, recordkeeping, resource 
management, budgeting, personnel actions, and travel.
    The actions contemplated by this CE are a variety of administrative 
activities that have no inherent potential for significant 
environmental impacts. This CE is supported by long-standing 
categorical exclusions from the U.S. Coast Guard, U.S. Navy, Federal 
Emergency Management Agency, U.S. Air Force, U.S. Army, and the U.S. 
Department of the Interior. Further, the Panel found that actions of a 
similar nature, scope, and intensity were performed throughout the 
Federal government without significant environmental impacts.

Paperwork Reduction Act

    This notice does not contain collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et 
seq.). Notwithstanding any other provision of law, no person is 
required to, nor shall a person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB control number.
    A Paperwork package for the associated ``Departmental NEPA 
Checklist'' referenced in the Supplementary Information has been 
submitted to the Office of Management and Budget (OMB) for review and 
approval. A Notice of Action will be published in the Federal Register 
at the conclusion of OMB's review of the information collection.

Environmental Impact

    This notice supplements CEQ regulations and Department of Commerce 
NEPA procedures and provides guidance to DOC employees regarding 
procedural requirements for the application of NEPA provisions to 
funding 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: July 6, 2009.
Paul N. Doremus,
NOAA NEPA Coordinator, Office of Program Planning and Integration.
[FR Doc. E9-16394 Filed 7-9-09; 8:45 am]
BILLING CODE 3510-12-P