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Notice

National Environmental Policy Act- Categorical Exclusions

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AGENCY:

U.S. Department of Commerce.

ACTION:

Notice.

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.”

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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.

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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 Start Printed Page 33205Exclusions (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 Start Printed Page 33206height 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 Start Printed Page 33207and 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

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Dated: July 6, 2009.

Paul N. Doremus,

NOAA NEPA Coordinator, Office of Program Planning and Integration.

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[FR Doc. E9-16394 Filed 7-9-09; 8:45 am]

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