[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 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 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 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]
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