This PDF is the current document as it appeared on Public Inspection on 01/07/2014 at 08:45 am.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice, Request for Public Comment.
The First Responder Network Authority (FirstNet) publishes this notice to request public comments on its proposed procedures for implementing the National Environmental Policy Act (NEPA). These proposed NEPA implementing procedures are necessary to assist FirstNet in establishing an NEPA compliance program and applying the appropriate level of NEPA review for activities undertaken by FirstNet in the design, construction and operation of the nationwide interoperable public safety broadband network (PSBN).
Comments on the proposed procedures must be received by February 7, 2014.
The public is invited to submit written comments in electronic form. Written comments may be submitted by email to FirstNetNEPAcomments@ntia.doc.gov or mail (to the address listed below). All comments submitted in electronic form should be in a standard format such as Word or PDF. All comments submitted via mail should include, to the extent available, an electronic copy of the submission. However, paper copies of the comments will be accepted. All comments received will be made a part of the public record and may be posted to NTIA's Web site (http://www.ntia.doc.gov/category/firstnet) without change. All personally identifiable information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business Start Printed Page 1364information or otherwise sensitive or protected information.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Eli Veenendaal, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., HCHB Room 4713, Washington, DC 20230; (202) 482-2188; or email@example.com.End Further Info End Preamble Start Supplemental Information
I. National Environmental Policy Act
The National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) (NEPA) requires federal agencies to undertake an assessment of environmental effects of their proposed actions prior to making a final decision and implementing the action. NEPA requirements apply to any federal project, decision, or action that may have a significant impact on the quality of the human environment. NEPA also establishes the Council on Environmental Quality (CEQ), which issued regulations implementing the procedural provisions of NEPA. Among other considerations, CEQ regulations require federal agencies at 40 CFR 1507.3 to adopt their own implementing procedures to supplement CEQ's regulations implementing NEPA and to consult with CEQ during their development and prior to publication in the Federal Register.
The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, 126 Stat. 156 (2012)) (Act) creates and authorizes FirstNet to take all actions necessary to ensure the design, construction, and operation of a nationwide interoperable nationwide, public safety broadband network (PSBN) based on a single, national network architecture. The Act meets a long-standing and critical national infrastructure need to create a single, nationwide interoperable PSBN that will, for the first time, allow police officers, fire fighters, emergency medical service professionals and other public safety officials to effectively communicate with each other across agencies and jurisdictions.
As a newly created entity, FirstNet does not currently have procedures for implementing NEPA. The proposed NEPA implementing procedures are necessary to assist FirstNet in establishing an NEPA compliance program and applying the appropriate level of NEPA review for activities undertaken by FirstNet in the design, construction and operation of the nationwide interoperable PSBN. Accordingly, FirstNet is requesting public comment on its proposed implementing procedures before utilizing them as part of its NEPA review process. The proposed procedures are set forth as an addendum to this notice.
FirstNet is responsible for, at a minimum, ensuring nationwide standards for the use of and access to the network; issuing open, transparent and competitive requests for proposals (RFPs) to build, operate and maintain the network; encouraging these RFPs to leverage, to the maximum extent economically desirable, existing commercial wireless infrastructure to speed deployment of the network; and overseeing contracts with non-federal entities to build, operate and maintain the network.
The specific actions anticipated to be undertaken by FirstNet encompass a variety of activities including the installation of cables, cell towers, antenna colocations, buildings, and power units as defined in the following examples:
(a) Buried Plant/Facilities: The construction of buried outside plant facilities generally consists of plowing or trenching cable at a depth of approximately 36″ to 48″ alongside the road usually in a utility corridor or within public road rights-of-way.
(b) Aerial Plant/Facilities: The construction of aerial facilities is either done by installing new poles and hanging cables on it on public rights-of-way or by installing cables using existing poles lines from a third party.
(c) Towers: The construction of towers for cell sites and/or microwave dishes. Tower construction is typically done by installing a concrete foundation and building the tower on it. The heights of the towers vary from 120 feet to 400 feet.
(d) Co-Locations: The mounting or installation of an antenna on an existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes.
(e) Building construction: Generally consists of installing small pre-fabricated shelters on tower sites that are used for housing electronic equipment. These shelters are usually placed on concrete pads and generally require very minimal disturbance of the land. On extremely rare occasion, the construction of a headquarters and/or warehouse building may be necessary. The amount of land disturbance resulting from this type of construction can vary depending on the size of the proposed building.
(f) Power Units: The installation of power units, such as, an uninterruptible power supply (UPS) could be added to existing third party tower sites either on the existing concrete pad or by adding a new concrete pad if required at the site.
FirstNet is also required to leverage, to the maximum extent economically possible, existing commercial infrastructure in its deployment and operation of the PSBN.
The geographic scope of the PSBN encompasses all U.S. states and territories. Thus, FirstNet actions will likely occur in a wide range of environmental settings and require FirstNet to establish a process for analyzing proposed actions and making NEPA determinations based on the specific location and type of proposed project activities.
Therefore, FirstNet seeks to establish NEPA implementing procedures to better follow the letter and spirit of NEPA; comply fully with the CEQ Regulations; and apply the NEPA review process early in the planning stages of the PSBN.
III. Paperwork Reduction Act
The 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 provisions of law, no person is required to, nor shall a person be subject to penalty for failure to comply with, a collection of information subject to the requirements of PRA unless that collection of information displays a currently valid OMB control number.
IV. Environmental Impact
These NEPA procedures are intended to supplement CEQ regulations and provide guidance to FirstNet employees regarding the procedural requirements for the application of NEPA to FirstNet. CEQ does not direct agencies to prepare 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 their responsibilities under NEPA. The requirements for establishing NEPA procedures are set for at 40 CFR 1505.1 and 1507.3.Start Signature
Dated: December 30, 2013.
Chief Counsel, First Responder Network Authority.
First Responder Network Authority Management Directive
First Responder Network Authority Procedures for Implementing the National Environmental Policy Act
1.05 Program Goals
1.07 Environmental Review Process
1.08 Effective Date
Appendix A—List of Authorities
Appendix C—Categorical Exclusions
Appendix D—Extraordinary Circumstances
The purpose of this Management Directive (Directive) is to establish the First Responder Network Authority (FirstNet) policies, requirements, and procedures for complying with the National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA), and the implementing regulations issued by the Council on Environmental Quality (CEQ Regulations) as codified in Parts 1500-1508 of Title 40 of the Code of Federal Regulations (40 CFR Parts 1500-1508).
The provisions of this Directive apply to actions undertaken by FirstNet and specifically apply to any of the following actions undertaken by FirstNet:
(a) Legislative proposals initiated by FirstNet for which FirstNet would have primary action responsibility.
(b) Research, projects, and activities directly undertaken by FirstNet, or the research, projects and activities of a non-Federal entity supported or facilitated by FirstNet, including through grants and other forms of financial assistance, where FirstNet has sufficient involvement to influence, control, direct or affect material aspects of the research, project or activity.
(c) Actions to establish an official policy or adopt a formal plan or program. (40 CFR 1508.18).
FirstNet policies and programs shall be planned, developed, and implemented so as to achieve the goals and to follow the procedures declared by NEPA in order to assure responsible stewardship of the environment for present and future generations. Accordingly, FirstNet shall adhere to the following actions to ensure compliance with NEPA.
(a) FirstNet adopts the CEQ Regulations (40 CFR Parts 1500-1508) for implementing NEPA.
(b) FirstNet shall:
1. Comply with the CEQ Regulations (40 CFR Parts 1500-1508);
2. Report and coordinate its policies and procedures with the Department of Commerce Office of General Counsel, as appropriate;
3. Ensure activities and planning regarding Federal actions consider the environmental consequences of proposed actions in conjunction with mission requirements and objectives;
4. Consider and give weight to environmental factors in making decisions in order to achieve a proper balance between the development and utilization of natural, cultural and human resources, and the protection and enhancement of environmental quality;
5. Consult, coordinate and cooperate with other Federal agencies and, where appropriate, state, local and tribal governments in the development and implementation of FirstNet's plans and programs affecting environmental quality and, in turn, to give consideration to those activities that succeed in best addressing state and local concerns;
6. Identify potential Federal, state, local and tribal cooperating agencies early during the NEPA scoping process;
7. Participate as a lead or cooperative agency, as appropriate, with other federal agencies where FirstNet is involved in the same action as other agencies, or is involved in an action which is related to another agency's action because of their functional interdependence or geographical proximity;
8. As requested, and where resources allow, review and provide comments on draft NEPA documents submitted by other Federal agencies where the action relates to FirstNet's mission or operations;
(c) FirstNet shall ensure appropriate action is taken to comply with NEPA when actions are planned by private applicants or other non-Federal entities before Federal involvement so that:
1. Policies or designated staff is available to advise potential applicants of existing studies or other information foreseeably required for later Federal action.
2. The Federal agency consults early with appropriate state, local and tribal governments and with interested private persons and organizations when its own involvement is reasonable foreseeable.
3. The Federal agency commences its NEPA process at the earliest possible time.
(d) While it is the policy of FirstNet to fully evaluate its actions in accordance with the requirements of NEPA and the CEQ regulations, certain actions may result from statutory requirements involving little or no discretion on the part of FirstNet. In the case of such actions, a determination of non-applicability of NEPA should be made by the FirstNet NEPA Coordinator in coordination with the FirstNet Chief Counsel.
This Directive incorporates all definitions and phrases as defined by CEQ in its regulations at 40 CFR Part 1508. To ensure full compliance, the CEQ regulations should be consulted for comprehensive explanations of the terms. A glossary of words and phrases as used in this Directive is included in Appendix B.
1.05 Program Goals
FirstNet will follow a systematic, interdisciplinary approach to planning in order to ensure a reasonable use of environment resources without degradation, risk to health and safety, or other undesirable and unintended consequences. The FirstNet NEPA program is designed to ensure that:
(a) Proposed actions to be undertaken by FirstNet are identified early in the planning process, and brought to the attention of the NEPA Coordinator;
(b) Actions are evaluated to determine the appropriate applicable NEPA review (i.e., CE, Environmental Assessment (EA), or Environmental Impact Study (EIS));
(c) An interdisciplinary approach is taken to proactively consider environmental impacts and identify and consider the full range of viable alternatives at the earliest planning stages of an action and prior to rendering any decision;
(d) The planning process integrates environmental review and consultation requirements;
(e) The impacts of proposed activities, programs, and projects on the quality of the human environment are considered before making an irretrievable and irreversible commitment of resources; and
(f) The public is engaged and involved with the planning process and evaluation of environmental impacts, as appropriate.Start Printed Page 1366
FirstNet roles and responsibilities relating to the implementation and compliance with NEPA are as follows:
(a) The Chair of the Board (Chair). The Chair has the ultimate responsibility to fulfill FirstNet's compliance with NEPA. The Chair directs the FirstNet General Manger (GM) to (1) ensure that environmental planning is incorporated into FirstNet decision making processes and (2) coordinate with the designated NEPA Coordinator for advice and guidance on proper and adequate compliance with NEPA requirements.
(b) FirstNet General Manger (GM). The GM shall:
1. Establish and oversee the proper implementation of a FirstNet NEPA compliance program in accordance with the requirements of this Directive;
2. Advise the Chair on NEPA processes that are highly controversial, are nationally significant, or require the establishment of a new FirstNet NEPA-related policy;
3. Inform the Chair of current developments in NEPA policy and implementing procedures;
4. Support early, proactive, and comprehensive coordination and outreach processes across FirstNet;
5. Appoint a NEPA Coordinator to carry out the responsibilities delineated below in paragraph c; and
6. Sign Records of Decision (ROD), Findings of No Significant Impact (FONSIs) and memos citing Categorical Exclusions (CEs), or re-delegate this authority in writing to other FirstNet personnel, as appropriate.
(c) FirstNet NEPA Coordinator (NEPA Coordinator). Responsible for coordinating and overseeing FirstNet's compliance with NEPA. To accomplish this the NEPA Coordinator will:
1. Assist the Chair and GM in implementing FirstNet's compliance with NEPA;
2. Review and provide final clearance on all NEPA documents covered by this Directive;
3. Transmit, with written recommendation, all NEPA documents for action to the GM or authorized designee for signature or other appropriate agency action;
4. Develop and recommend policies, procedures and technical and administrative advice and training to facilitate and improve FirstNet's effective and efficient implementation of NEPA.
5. Provide technical and administrative advice and training to relevant stakeholders so that they are aware of, and comply with, the NEPA process and so that they consider the impacts of their programs, projects, and policies;
6. Act as liaison with the Department, CEQ and U.S. EPA on NEPA-related matters or issues, and coordinate with other federal agencies with respect to significant NEPA matters;
7. Prepare or review, as appropriate, all inter- or intra-agency reports, surveys and comments on NEPA-related matters, including other agency NEPA documentation, or legislative proposals;
8. Consult early and often with relevant stakeholders to identify how the requirements of this Directive will be met. At a minimum:
A. Determine the applicability of NEPA and, if applicable, the appropriate NEPA review procedure (i.e., CE, EA, or EIS) and public involvement, in consultation with the Chief Counsel of FirstNet, as necessary;
B. Review and comment upon draft NEPA documents to ensure that a high-quality analysis is completed, reasonable or appropriate alternatives are identified and discussed, and that all applicable scheduling, scoping, consultation, circulation, and public involvement requirements are met;
C. Assist in consultations with other Federal, state, and local regulatory and/or resource agencies and tribal governments on draft NEPA documents, as appropriate; and
D. Otherwise act as a resource to the relevant stakeholders to ensure that the NEPA document to be prepared identifies reasonably foreseeable significant impacts of the action, sufficiently analyzes the impacts, clearly presents the findings and fairly considers reasonable or appropriate alternatives to the action.
(d) FirstNet Chief Counsel: The Chief Counsel of FirstNet shall provide all legal services regarding NEPA compliance, including:
1. Providing legal sufficiency reviews of NEPA documents, as appropriate;
2. Assisting the Chair, GM, and NEPA Coordinator in determining the applicable NEPA review for a proposed action; and
3. Assisting the Chair, GM, and NEPA Coordinator in establishing or revising this Directive and the FirstNet NEPA compliance program, as necessary.
1.07 Environmental Review Process
The environmental review process describes the applicable CE, EA, or EIS process for a proposed FirstNet action and includes actions required by CEQ in 40 CFR parts 1500-1508 for compliance with NEPA. The process involves the following series of actions accomplished by or under the direction of the Chair of FirstNet or a delegate.
Developing the Purpose and Need
FirstNet shall ensure the purpose and need of a proposed action considers the FirstNet mission. FirstNet is authorized and directed by statute to take all actions necessary to ensure the design, construction, and operation of a nationwide interoperable public safety broadband network (PSBN) based on a single, national network architecture. The establishment of the nationwide PSBN meets a long-standing and critical national infrastructure need that will, for the first time, allow police officers, fire fighters, emergency medical service professionals, and other public safety officials to effectively communicate with each other across agencies and jurisdictions.
Apply NEPA Early in the Process
FirstNet shall integrate the NEPA process with other planning for the nationwide PSBN at the earliest possible time to ensure that planning and decisions reflect environmental values to avoid delays later in the process and head off potential conflicts. Accordingly, FirstNet shall:
(a) Identify environmental impacts and resources in adequate detail so they can be compared and evaluated with economic and technical considerations. Wherever practicable, environmental documents with appropriate analyses should be circulated and reviewed at the same time as other planning documents.
(b) Study, develop, and analyze reasonable alternatives to recommended courses of action. Consider mitigation measures which could avoid, ameliorate, lessen, or compensate identified impacts of the proposed action.
(c) Where the action requiring FirstNet review is by a private applicant or other non-Federal entity:
1. The NEPA Coordinator or an assigned FirstNet Environmental Protection Specialist will advise the applicant of FirstNet's policies and procedures for NEPA compliance, and make available or direct the applicant to resources within FirstNet, the Department or elsewhere in the Federal government to facilitate the applicant's consideration of and explanation of environmental impacts and alternatives.
2. FirstNet will consult with appropriate state, local, and tribal governments and appropriate organizations on environmental impacts and alternatives of the proposed action when its own involvement is reasonably foreseeable.
3. FirstNet will initiate its NEPA review process at the earliest practicable time.Start Printed Page 1367
FirstNet shall comply with scoping procedures described in 40 CFR 1501.7 required for proposed actions normally requiring an EA with scoping or an EIS. FirstNet may also require scoping procedures to be followed for other proposed actions where appropriate to achieve the purposes of NEPA. When evaluating the type and extent of the NEPA documents and review appropriate for a proposed action, FirstNet shall:
(a) Define the purpose and need of the proposed action;
(b) Identify reasonably foreseeable impacts of the action to determine if consultation with other federal, state, local or tribal entities is needed;
(c) Determine if other federal agency action is involved in the proposed action so lead and coordinating agencies can be established;
(d) Identify or develop reasonable alternatives to the proposed action;
(e) Consider the context and intensity of the potential direct, indirect, and cumulative environmental effects of the proposed action(s) and any reasonable or appropriate alternatives;
(f) Consider mitigation measures or strategies to minimize, reduce, or eliminate environmental impacts of the proposed action(s), as necessary;
In carrying out its responsibilities under NEPA, FirstNet shall comply with the public involvement requirements described in 40 CFR 1506.6 and make diligent efforts to involve the public in the environmental review process. In addition, FirstNet shall:
(a) Ensure that all public notices relating to environmental matters shall describe the nature, location, and extent of the proposed action and indicate the availability and location of additional information relating to the matter.
(b) Determine the appropriate medium for publishing notices relating to environmental matters on a project-by-project basis.
(c) Assess and consider public comments both individually and collectively and ensure that responses to public comments are appended to the applicable environmental document, as appropriate.
(d) Make available to the public those project-related environmental documents that FirstNet determines will enhance public participation in the environmental process. These materials shall be placed in locations convenient for the public as determined by FirstNet.
(e) Hold public hearings or meetings at reasonable times and locations concerning environmental aspects of a proposed action in all cases where, in the opinion of FirstNet, the need for hearings or meetings is indicated in order to develop adequate information on the environmental implications of the proposed action. Public hearings or meetings conducted by FirstNet will be coordinated to the extent practicable with other meetings, hearings, and environmental reviews which may be held or required by other Federal, state and local agencies.
General Requirements for Categorical Exclusions
FirstNet actions that do not individually or cumulatively have a significant effect on the human environment and where no extraordinary circumstances exist may be categorically excluded from further environmental review in an EA or EIS.
(a) The approved list of FirstNet actions that normally qualify for a CE are listed in Appendix C.
(b) FirstNet actions that would normally be categorically excluded from further environmental review but due to the existence of extraordinary circumstances could have substantial environmental effects will require the preparation of an EA or EIS.
(c) This list of extraordinary circumstances that could have substantial environmental effects is listed in Appendix D.
(d) If a proposed action is determined to be a CE and not considered a routine administrative, personnel action, or procurement, FirstNet shall document its determination that a CE applies to a proposed action with a Record of Environmental Consideration.
(e) The list of approved FirstNet CE's is subject to continual review and can be modified by amending/revising this Directive, in consultation with CEQ.
(f) The use of a CE does not relieve FirstNet from compliance with other statutes or consultations under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.). Such consultations may be required to determine the applicability of the CE screening criteria
General Requirements for an Environmental Assessment
FirstNet shall prepare an EA as defined in 40 CFR 1508.9 for an action which FirstNet determines may have the potential for significant environmental impact. Actions normally requiring an EA include:
(a) When a proposed action is not in a category of actions described in an available categorical exclusion and there is not enough information available to know that the proposed action will have significant environmental impacts, an EA will be prepared. In this situation, an EA process is used to determine, through environmental impact evaluation and opportunity for public involvement, if the impacts on the quality of the human environment are potentially significant.
(b) A proposed action that is included in a category of actions described in a categorical exclusion, but extraordinary circumstances may present the potential for significant environmental impacts precluding the categorical exclusion, and there is a the lack of information to determine that the proposed action will have significant environmental impacts requiring preparation of an EA.
(c) The Chair or a delegate can decide to prepare an EA as a best practice planning tool to inform decision makers on the environmental impacts of its actions.
In preparing an EA, First shall:
(a) Involve environmental agencies, applicants, and the public to the extent practicable.
(b) Ensure the contents of an EA comply with the requirements of 40 CFR 1508.9, and, at minimum, shall include:
1. Sufficient evidence and analysis for FirstNet to determine whether to prepare an EIS or a FONSI, and facilitate preparation of said EIS, if needed;
2. A brief discussion of the need for the action;
3. A brief discussion of the environmental impacts of the proposed action and alternatives; and
4. A listing of agencies and person consulted
(c) Determine, based on an independent review of the EA, whether the proposed action will have a significant environmental impact. If FirstNet determines that the proposed action will not have a significant impact, FirstNet may issue a FONSI as described in 40 CFR 1508.13. However, if, after review of the EA, FirstNet determines that the proposed action will have a significant environmental impact, FirstNet will proceed with the preparation of an EIS.
General Requirements for and Environmental Impact Statement
FirstNet shall prepare an EIS when it determines that a proposed action significantly impacts the quality of the human environment or when the results of an EA indicate the proposed action will have significant impacts. Actions normally requiring the preparation of an EIS include:
(a) Major federal actions found to cause significant effects on the human Start Printed Page 1368environment which cannot be mitigated to a level of insignificance (identifiable at the start of the NEPA process or through the preparation of an EA).
(b) Major federal actions occurring in the U.S. known to cause significant environmental effects on the global commons, such as the oceans or Antarctica, as described in EO 12114, Environmental Affects Abroad of Major Federal Actions.
(c) Actions required by statute or treaty to develop an EIS.
In preparing and EIS, FirstNet shall solicit public involvement and commenting as described in 40 CFR 1503.1-1503.4 after preparing a draft EIS and before preparing a final EIS. FirstNet shall also ensure the contents of an EIS contain the elements described in 40 CFR 1502.10-1502.18 and, unless FirstNet determines that there is a compelling reason to do otherwise shall follow the standard EIS format and include:
1. Cover Sheet
i. See 40 CFR 1502.11
i. See 40 CFR 1502.12
3. Table of Contents
4. Purpose of and Need for Action
i. See 40 CFR 1502.13
5. Discussion of Proposed Action and Alternatives
i. See 40 CFR 1502.14
6. Description of the Affected Environment
i. See 40 CFR 1502.15
7. Discussion of the Environmental Consequences of the Proposed Action
8. See 40 CFR 1502.16
9. List of Preparers
i. See 40 CFR 1502.17
10. List of Agencies, Organizations, and Persons Consulted
11. Index and Appendices, as appropriate
Finally, FirstNet shall prepare a concise public Record of Decision (ROD) in accordance with 40 CFR 1505.2.
Environmental Review and Consultation Requirements for NEPA Reviews
To the fullest extent possible, FirstNet shall prepare NEPA reviews (i.e., CE, EA, EIS) concurrently with and integrated with environmental analyses and related surveys and studies required by the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq., Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), E.O. No. 11990, Protection of Wetlands, and E.O. No. 11988, Floodplain Management, and other environmental review laws and executive orders.
FirstNet NEPA analyses shall assess cumulative effects, which are the impacts on the environment resulting from the incremental impact of the action when added to other past, present, and reasonable foreseeable future actions (40 CFR 1508.7).
FirstNet shall comply with Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority and Low-Income Populations,” and determine whether the proposed action will have a disproportionate impact on minority or low-income communities.
Environmental Determinations and Final Decisions
The conclusion of the NEPA review process will result in one of the following environmental determinations or final decisions.
(a) Record of Environmental Consideration
1. If a proposed action is determined to be a CE and not considered a routine administrative or personnel action, FirstNet shall document its determination that a CE applies to a proposed action with a memorandum to the file.
2. A Record of Environmental Consideration is a brief memorandum that is kept in the administrative record and should cite the categorical exclusion used and show that the agency determined: (1) The action fits within the category of actions described in the categorical exclusions; and (2) there are no extraordinary circumstances that would preclude the project or proposed action from qualifying as a categorically excluded action.
(b) Finding of No Significant Impact (FONSI)
1. An EA results in either the issuance of FONSI or a determination to prepare an EIS. A FONSI is a document (40 CFR 1508.13) that briefly states why an action (not otherwise excluded) will not significantly affect the environment.
2. If the Chair or delegate determines, based on an independent review of the EA, that the proposed action will not have significant impact, FirstNet may issue a FONSI and proceed with the proposed action. However, if, after an independent review of the EA, it is determined by the Chair or a delegate that the proposed action will have a significant environmental impact, FirstNet will proceed with the preparation of an EIS.
(c) Record of Decision (ROD)
1. When it is determined that an EIS is required, FirstNet's final decision relating to the proposed action will consider the environmental information provided in the EIS and require the preparation of an ROD. The ROD documents the final decision made and the basis for that decision. An ROD shall be prepared in accordance with 40 CFR 1505.2 for the final decision maker, whether the Chair or a delegate, for approval and signature.
2. FirstNet's implementation of the proposed action may begin immediately after approval of the ROD.
FirstNet, throughout the environmental review process, shall consider mitigation measures, as defined in 40 CFR 1508.20, to avoid or minimize environmental harm, where possible. In addition, the following actions will be taken to ensure proper implementation of mitigation measures:
(a) FirstNet shall ensure a discussion of mitigation measures essential to render the impacts of the proposed action not significant be included in or referenced in the FONSI and the ROD prior to making a final environmental determination or decision relating the significant of the impacts.
(b) FirstNet will not commit to mitigation measures considered or analyzed in environmental documentation if there are insufficient legal authorities, or it is not reasonable to foresee the availability of sufficient resources to perform or ensure the performance of the mitigation.
(c) Prior to and during the implementation of the action, FirstNet shall monitor project activities to ensure the proper execution of any mitigation measures or other conditions established and committed to in environmental documentation, as appropriate.
(d) If mitigation commitments made in NEPA and decision documents fail to achieve projected environmental outcomes and there is remaining federal action, FirstNet may utilize an adaptive management approach and take corrective actions to identify alternatives that could take the place of original mitigation commitments and provided the intended environmental result.
FirstNet shall tier environmental documents to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental Start Printed Page 1369review, as appropriate (see 40 CFR 1508.28). When a broad EIS has been prepared, FirstNet need only summarize the issues discussed in the broader environmental document, incorporate discussions from the broader environmental document by reference, and therefore concentrate on issues specific to the subsequent action.
Supplemental Environmental Documentation
FirstNet may prepare supplements to either the draft or final environmental documentation if:
(a) FirstNet makes substantial changes in the proposed action that are relevant to environmental concerns; or
(b) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
(c) FirstNet is relying upon an environmental review previously performed by another federal agency, with authority over the action or related activity of an applicant and (I) additional analysis is needed to address the reasonably foreseeable impacts of the action under consideration by FirstNet or (II) it adequately addresses the reasonably foreseeable impacts of the action under consideration by FirstNet.
FirstNet may implement an emergency NEPA process after determining there is a need for taking action that does not allow for time for the regular NEPA process and complying with NEPA. This section applies only if the NEPA Coordinator, in consultation with FirstNet General Counsel, determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and documentation in accordance with the provisions in subparts D and E of this part.
(a) The NEPA Coordinator may take those actions necessary to control the immediate impacts of the emergency that are urgently needed to mitigate imminent harm to life, property, or important natural, cultural, or historic resources. When taking such actions, the Responsible Official shall take into account the probable environmental consequences of these actions and mitigate foreseeable adverse environmental effects to the extent practical.
(b) The NEPA Coordinator or designee shall document in writing the determination that an emergency exists and describe the responsive action(s) taken at the time the emergency exists. The form of that documentation is within the discretion of the Responsible Official.
(c) If the NEPA Coordinator determines that proposed actions taken in response to an emergency, beyond actions noted in paragraph (a) of this section, are not likely to have significant environmental impacts, the NEPA Coordinator or designee shall document that determination in an environmental assessment and a FONSI prepared in accordance with this part, unless categorically excluded. If the NEPA Coordinator finds that the nature and scope of the subsequent actions related to the emergency require taking such proposed actions prior to completing an EA and a FONSI, the NEPA Coordinator shall consult with the General Counsel about alternative arrangements for NEPA compliance. The NEPA Coordinator or designee may grant an alternative arrangement. Any alternative arrangement must be documented and notice of its use provided to CEQ.
(d) The NEPA Coordinator shall consult with CEQ about alternative arrangements as soon as possible if the Responsible Official determines that proposed actions taken in response to an emergency are likely to have significant environmental impacts. Such alternative arrangements will apply only to the proposed actions necessary to control the immediate impacts of the emergency. Other proposed actions remain subject to NEPA analysis and documentation in accordance with this part.
1.08 Effective Date
The effective date for the FirstNet NEPA implementation procedures is to be determined after the comment period.
List of Authorities
(a) Statutes and Regulations that should be considered during the development of a NEPA review should include, but not be limited to:
1. National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq.
2. CEQ Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, as codified at 40 CFR Parts 1500—1508.
3. Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.
4. Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.
5. National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.
6. Migratory Bird Treaty Act of 1918, 16 U.S.C. 703 et seq.
7. Clean Air Act of 1970, 42 U.S.C. 7401 et seq.
8. Clean Water Act, 33 U.S.C. 1251 et seq.
9. Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq.
10. Wild and Scenic Rivers Act of 1968, 16 U.S.C. 1271 et seq.
11. Marine Mammal Protection Act of 1972, 16 U.S.C. 31 et seq.
12. River and Harbors Act of 1899, 33 U.S.C. 401 and 403.
(b) Executive Orders that should be considered during the development of a NEPA review should include, but not be limited to:
1. E.O. No. 11988, Floodplain Management.
2. E.O. No. 12114, Environmental Effects Abroad of Major Federal Actions.
3. E.O. No. 11990, Protection of Wetlands.
4. E.O. No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.
5. E.O. No. 13112, Invasive Species.
6. E.O. No. 13175, Consultation and Coordination with Indian Tribal Governments.
7. E.O. No. 13186, Responsibilities of Federal Agencies to Protect Migratory Birds.
(c) CEQ Guidance Documents that should be considered during the development of a NEPA review should include, but not be limited to:
1. “Memorandum for Heads of Federal Departments and Agencies: Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act” (CEQ, 2012).
2. “Memorandum for Heads of Federal Departments and Agencies: Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact” (CEQ, 2011).
3. “Memorandum for Heads of Federal Departments and Agencies: Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act” (CEQ, 2010).
4. “Memorandum for Heads of Federal Departments and Agencies: Emergencies and the National Environmental Policy Act” (CEQ, 2010).
5. “Aligning National Environmental Policy Act Processes with Environmental Management Systems” (CEQ/NEPA Task Force, 2007).
6. “Collaboration in NEPA: A Handbook for NEPA Practitioners” (CEQ/NEPA Task Force, 2007).
7. “Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA” (CEQ, 2005).
8. “Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA, Appendix 2: Preparing Focused, Concise and Timely Environmental Assessments” (CEQ, 2005).
9. “Guidance on the Consideration of Past Actions in Cumulative Effects Analysis” (CEQ, 2005).
10. “Modernizing NEPA Implementation” (CEQ/NEPA Task Force, 2003).
11. “CEQ Memorandum for Deputy/Assistant Heads of Federal Agencies: Identifying Non-Federal Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act” (CEQ, 2000).
12. “CEQ Memorandum for Heads of Federal Agencies: Designation of Non-Start Printed Page 1370Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA” (CEQ, 1999).
13. “Considering Cumulative Effects Under the National Environmental Policy Act” (CEQ, 1997).
14. “Environmental Justice: Guidance Under the National Environmental Policy Act” (CEQ, 1997).
15. “CEQ Guidance on NEPA Analyses for Transboundary Impacts” (CEQ, 1997).
16. “Memorandum to Heads of Federal Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act” (CEQ, 1993).
17. “Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act” (CEQ, 1993).
18. “CEQ Guidance Regarding NEPA Regulations” (CEQ, 1983).
19. “Forty Most Asked Questions Concerning CEQ's NEPA Regulations” (CEQ, 1981).
20. “Guidance on Applying Section 404(r) of the Clean Water Act to Federal Projects Which Involve the Discharge of Dredged or Fill Materials into Waters of the U.S., Including Wetlands” (CEQ, 1980).
21. “Environmental Effects Abroad of Major Federal Actions, Executive Order 12114; Implementing and Explanatory Documents” (CEQ, 1979).
22. “CEQ Memorandum for Heads of Agencies: Implementation of Executive Order 11988 on Floodplain Management and Executive Order 11990 on Protection of Wetlands” (CEQ, 1978).
23. “Environmental Review Pursuant to Section 1424(e) of the Safe Drinking Water Act of 1974 and its Relationship to NEPA” (CEQ, 1976).
All terminology and definitions contained in 40 CFR Parts 1500-1508 are incorporated into this Directive. The following definitions are provided for other terms and phrases used.
(a) Applicant. Any party who may apply to FirstNet for a Federal permit, funding, or other approval or any party proposing such an action. Any application should be accompanied by an explanation of the expected or reasonably foreseeable environmental impacts, identify, as appropriate, alternatives to the action and provide supporting documentation. Depending on the program, the applicant can be an individual, a private organization, or a Federal, state, tribal, or territorial government body.
(b) Chair of the Board. Member of the FirstNet Board selected by the Secretary of Commerce to serve Chair of the Board for FirstNet.
(c) Council on Environmental Quality (CEQ). Organization with the Executive Office of the President charged with monitoring progress toward achieving the national environmental goals as set forth in NEPA. The CEQ promulgates regulations governing the NEPA process for all Federal agencies.
(d) Environmental Impact Statement (EIS). A detailed written statement prepared by an agency if a proposed action significantly impacts the quality of the human environment. The decision to prepare an EIS is based on the Agency's determination that the potential impacts are significant or the results of an EA indicate significant impacts. An EIS should include discussions of the purpose of and need for the action, alternatives, the affected environment, the environmental consequences of the proposed action, lists of preparers, agencies involved, response to any public comments received, organizations and persons to whom the statement is sent, an index, and an appendix (if any). An EIS is prepared in two stages: a draft and a final. Either stage of an EIS may be supplemented.
(e) Environmental Review. This term refers to the NEPA process which includes: (1) identifying and scoping issues related to the proposed action; (2) determining the necessary steps for NEPA compliance and preparing the NEPA review (CE, EA, or EIS); and (3) making decisions that are based on understanding the environmental consequences of the proposed action.
(f) Finding of No Significant Impact (FONSI). A short NEPA document that presents the reasons why an action will not have a significant impact on the quality of the human environment and, therefore, will not require the preparation of an EIS. A FONSI must be supported by an EA, and must include, summarize, attach or incorporate by reference the EA. (40 CFR 1508.13).
(g) FirstNet General Manager. Individual responsible for implementing the policies and strategies approved by the FirstNet Board, and overseeing all of the day-to-day operations of FirstNet.
(h) Mitigation. Measures taken to allow the proposed action to: avoid environmental impacts altogether; minimize impacts by limiting the degree or magnitude of the action; rectify the impact by repairing, rehabilitating, or restoring the affected environment; reduce or eliminate the impact over time by preservation; and/or compensate for the impact.
(i) NEPA Coordinator. Individual responsible for coordinating and overseeing FirstNet's compliance with NEPA.
(j) NEPA Document. An EA, FONSI, draft, supplemental draft, or final EIS, Record of Decision (ROD), or memorandum documenting the application of CE.
(k) Project. A Federal action such as a grant, contract, loan, loan guarantee, vessel capacity reduction program, land acquisition, construction project, license, permit, modification, regulation, or research program that involves FirstNet's review, approval, implementation, or other administrative action.
(l) Record of Decision (ROD). A pubic document signed by the agency decision maker following the completion of an EIS. The ROD states the decision, alternatives considered, the environmentally preferable alternative(s), factors considered in the agency decision, mitigation measures that will be implemented, and whether the practicable means to avoid or minimize environmental harm have been adopted (40 CFR 1505.2).
(m) Supplemental Environmental Documents. A document prepared to amend an original NEPA document when there is a significant change in the action proposed beyond the scope of the original environmental review or when circumstances or information arise that could affect the proposed action and its environmental impacts (40 CFR 1502.9(c)).
A.1: The issuance of bulletins and information publications that do not concern environmental matters or substantial facility design, construction, or maintenance practices.
A.2: Procurement activities related to the operation of FirstNet.
A.3: Personnel and Administrative Actions.
A.4: Purchase of existing facilities or a portion thereof where use or operation will remain unchanged.
A.5: Internal modifications or equipment additions (e.g., computer facilities, relocating interior walls) to structures or buildings.
A.6: Construction of buried and aerial telecommunications lines, cables, and related facilities.
A.7: Construction of microwave facilities involving no more than five acres (2 hectares) of physical disturbance at any single site.
A.8: 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.
A.9: 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.
A.10: 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.
A.11: 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.
A.12: 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).
A.13: Ordinary maintenance or replacement of equipment or small structures (e.g., line support structures, line transformers, microwave facilities, telecommunications remote switching and multiplexing sites).
A.14: The construction of telecommunications facilities within the Start Printed Page 1371fenced area of an existing substation, switching station, or within the boundaries of an existing electric generating facility site.
A.15: Testing or monitoring work (e.g., soil or rock core sampling, monitoring wells, air monitoring).
A.16: Studies and engineering undertaken to define proposed actions or alternatives sufficiently so that environmental effects can be assessed.
A.17: 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.
A.18: Phase or voltage conversions, reconductoring or upgrading of existing electric distribution lines, or telecommunication facilities.
A.19: 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.
Extraordinary circumstances that preclude the use of a CE include:
(a) Reasonable likelihood of significant impact on public health or safety.
(b) Reasonable likelihood of significant environmental effects (direct, indirect, and cumulative).
(c) Reasonable likelihood of effects on the environment that are highly uncertain, unique, or are scientifically controversial.
(d) Reasonable likelihood of violating any federal, state, or local law or requirements imposed for the protection of the environment.
(e) Reasonable likelihood of adversely affecting “environmentally sensitive” resources, unless the impact has been resolved through another environmental process (e.g., CZMA, NHPA, CWA).
Environmentally sensitive resources include:
1. Proposed federally listed, threatened, or endangered species or their designated critical habitat.
2. Properties listed or eligible for listing on the National Register of Historic Places.
3. Areas having special designation or recognition such as prime or unique or agricultural lands; designated wilderness or wilderness study areas; wild and scenic rivers; National Historic Landmarks (designated by the Secretary of the Interior); 100-year floodplains; wetlands; sole source aquifers (potential sources of drinking water); National Wildlife Refuges; National Parks; areas of critical environmental concern; or other areas of high environmental sensitivity.
(f) Reasonable likelihood of adversely impacting water quality, sole source aquifers, public water supply systems or state, local, or tribal water quality standards established under the Clean Water Act and the Safe Drinking Water Act.
(g) Reasonable likelihood of effects on the quality of the environment that is highly controversial on environmental grounds. The term “controversial” means a substantial dispute exists as to the size, nature, or effect of the proposed action rather than to the existence of opposition to a proposed action, the effect of which is relatively undisputed.
(h) Reasonable likelihood of a disproportionately high and adverse effect on low income or minority populations (see E.O. No. 12898).
(i) Limited access to and ceremonial use of Indian sacred sites on Federal lands by Indian religious practitioners or significantly adversely affect the physical integrity of such sacred sites.
(j) A greater scope or size than is normal for this category of action.
(k) Reasonable likelihood of degrading already existing poor environmental conditions. Also, initiation of a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.
(l) Introduction or employment of unproven technology.End Supplemental Information
[FR Doc. 2013-31495 Filed 1-7-14; 8:45 am]
BILLING CODE 3510-60-P