2014-09730. National Environmental Policy Act Categorical Exclusions

AGENCY:

National Telecommunications and Information Administration, U.S. Department of Commerce.

ACTION:

Notice.

SUMMARY:

The First Responder Network Authority (FirstNet) publishes this notice of its categorical exclusions (CEs) of actions that FirstNet 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 (NEPA).

DATES:

These categorical exclusions become effective on April 29, 2014.

ADDRESSES:

A complete set of comments filed in response to the First Responder Network Authority: National Environmental Policy Act Implementing Procedures and Categorical Exclusions published on January 6, 2014, is available at: http://www.ntia.doc.gov/​federal-register-notice/​2014/​comments-notice-firstnet-categorical-exclusions. The FirstNet categorical exclusions and the supporting administrative record for these categorical exclusions is available at: http://www.ntia.doc.gov/​category/​firstnet.

FOR FURTHER INFORMATION CONTACT:

Genevieve Walker, First Responder Network Authority, U.S. Department of Commerce, 1401 Constitution Avenue NW., HCHB Room CC 219, Washington, DC 20230; [phone]; or [e-mail].

SUPPLEMENTARY 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 as codified in 40 CFR Parts 1500-1508. Among other considerations, CEQ regulations require federal agencies to adopt their own implementing procedures to supplement the Council's regulations, and to establish and use “categorical exclusions” to define categories of actions that do not individually or cumulatively have a significant effect on the human environment. Thus, such actions do not require preparation of an environmental assessment or an environmental impact statement as required by NEPA.

The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, 126 Stat. 156 (2012)) (Act) created and authorized FirstNet 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 Act meets a long-standing and critical national infrastructure need, to create a nationwide interoperable broadband network 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 have any existing CEs. Thus, the following CEs are necessary to assist FirstNet in applying the appropriate level of NEPA review for activities undertaken by FirstNet in the design, construction, and operation of the PSBN. Accordingly, on January 6, 2014, FirstNet published a notice in the Federal Register (First Responder Network Authority: National Environmental Policy Act Implementing Procedures and Categorical Exclusions, 79 FR 639 (January 6, 2014)) requesting public comment on the following CEs (as well as the administrative records supporting each CE) before utilizing them as part of its NEPA review process.

II. Development Process for Establishing FirstNet CEs

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.

Due to the similarity in project activities and scope, FirstNet is establishing its CEs based primarily on the existing CEs that were approved and applied by NTIA in the implementation of the Broadband Technology Opportunities Program (BTOP), a program that provided grant funding for the deployment of broadband infrastructure throughout the country. The list of CEs developed for BTOP was compiled at the Department of Commerce (DOC) through a joint effort with the U.S. Department of Agriculture's Rural Utilities Service (RUS); NTIA; DOC's Office of Sustainable Energy and Environmental Programs; and the National Oceanic and Atmospheric Administration (NOAA). Representatives from these organizations comprised the review panel responsible for determining appropriate CEs for the BTOP program. The BTOP CEs were approved by DOC Office of General Counsel and the designated Senior Agency Official for NEPA at NOAA.

Each BTOP CE was reviewed and deliberated in concept, coverage, applicability, and wording by members of the review panel. The panel carefully reviewed the administrative record on each of the CEs to ensure they fulfilled the goal of balancing increased administrative efficiency in NEPA compliance with avoidance of misinterpretations and misapplications of exclusionary language that could lead to non-compliance with NEPA requirements. The review panel concurred that all of the BTOP CEs met both objectives.

The FirstNet CEs found below are currently in use by other agencies and are comparable to those applied by NTIA as part of BTOP. Specifically, these CEs are comparable because they (1) relate to planning, deployment, and construction of broadband infrastructure; (2) utilize the same methods and equipment of installing broadband infrastructure; (3) are not restricted to an environmental setting or geographic region of the country; and (4) are subject to review for extraordinary circumstances.

NTIA, through BTOP, provided over $4 billion in federal funding to 233 projects to construct and expand telecommunications infrastructure and increase broadband adoption throughout all U.S. states, territories and the District of Columbia. BTOP projects were funded in four categories. These four categories included (1) Broadband Infrastructure-Last Mile; (2) Broadband Infrastructure- Middle Mile; (3) Public Computer Centers; and (4) Sustainable Broadband Adoption. BTOP infrastructure projects typically required the deployment of broadband equipment including the installation of fiber optic cables, cell towers, antenna colocations, buildings, and power units. The methods used for deploying this equipment varied depending on the individual project plan and location but in general followed standard commercial approaches for completing such work (e.g., the use of trenching and plowing construction methods to install buried fiber, aerial installation of fiber cables on existing poles, or collocating antenna equipment on existing towers). These projects were initially required to be complete within three years of the original award date and were intended to be self-sustaining at the end of the award period. The nationwide scope of BTOP resulted in projects being implemented in a wide range of environmental settings (e.g., varying biological, cultural, or socio-economic conditions) and many required a detailed environmental review focusing on the unique characteristics of a specific project area and type of proposed project.

Each BTOP project was individually reviewed for NEPA compliance prior to funding. Based on NTIA's review, the CEs below applied to 133 projects. The remaining 100 projects, primarily infrastructure projects, were required to complete an Environmental Assessment (EA) due to the potential existence of extraordinary circumstances. Typically, these extraordinary circumstances included project implementation activities in locations where NTIA could not reasonably determine a project's potential effect on environmentally or culturally sensitive resources (i.e., project activities occurring on or near endangered habitat or species, water resources, or tribal country) and was based on its review of an applicant's responses to an environmental questionnaire, project descriptions, and mapping submitted as part of the BTOP application. To date, NTIA has reviewed and adopted 99 EAs and issued a Finding of No Significant Impact (FONSI) for each of those projects, with the completion and review of one EA still in process. When evaluating the effects of the completed projects where an EA was prepared and reviewed and a FONSI was issued, NTIA has consistently found that the actions resulted in no significant environmental impacts.

FirstNet, similar to BTOP, is mandated to plan and construct telecommunication and broadband infrastructure across the United States and its territories. The specific activities anticipated to be undertaken by FirstNet are comparable to BTOP project implementation activities and will primarily include the installation of cables, cell towers, antenna collocations, 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 hanging cables on new poles typically on public rights-of-way or by installing cables using existing pole lines from a third party.

(c) Towers: The construction of towers for cell sites and/or microwave dishes. Tower construction is typically done by building a tower on a new foundation. The heights of the towers generally vary from 120 feet to 400 feet.

(d) Collocations: The mounting or installation of an antenna on an existing tower, building, or structure for the purpose of transmitting and/or receiving radio frequency signals 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 occasions, 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 tower sites either on the existing concrete pad or by adding a new concrete pad if required at the site.

(g) Wireless Telecommunications Facility: An installation that sends and/or receives radio frequency signals, including directional, omni-directional, and parabolic antennas, structures, or towers (no more than 199 feet tall with no guy wires), to support receiving and/or transmitting devices, cabinets, equipment rooms, accessory equipment, and other structures, and the land or structure on which they are all situated.

FirstNet is also required to leverage, to the maximum extent economically desirable, existing commercial infrastructure in its deployment and operation of the nationwide PSBN.

The geographic scope of the PSBN will, like BTOP, encompass all U.S. states and territories. Thus, FirstNet actions will likely occur in a wide range of environmental settings and require FirstNet to establish an environmental review process for analyzing proposed actions and making NEPA determinations based on the specific location and type of proposed project activities, of which the CEs would be an integral part. Accordingly, because the characteristics of the actions in deploying and operating the nationwide PSBN are comparable in intensity, scope, and geography to BTOP projects, and based on the outcomes of NTIA applying these CEs to BTOP projects, FirstNet has determined that the CEs will not have significant impacts on the human environment.

III. Comments and Agency Responses

Comment #1

The PCIA-Wireless Infrastructure Association (PCIA) recommends FirstNet establish a forum for the governmental and non-governmental parties, including telecommunications providers, manufacturers, and tower owners, to an play an integral role in FirstNet's build-out, so that FirstNet can factor in the forum's input in developing its procedures and any future Notices.

Agency Response

FirstNet acknowledges the recommendation and will continue to engage governmental and non-governmental parties, as appropriate, in order to comply with relevant environmental requirements.

Comment #2

PCIA comments that collocating on existing facilities is the most economical and expeditious method of deploying wireless facilities, and, by maximizing collocations, FirstNet could minimize delays, achieve significant cost savings, and build-out a more comprehensive nationwide public safety broadband network.

Agency Response

FirstNet understands the importance of leveraging existing infrastructure, including collocations, and will utilize, to the maxim extent economically desirable, existing federal, state, tribal, local, commercial or other communications infrastructure in establishing the nationwide public safety broadband network.

Comment #3

PCIA expresses concerns that the proposed “extraordinary circumstances” identified in Appendix D do not provide any discussion of rationale for why and when an extraordinary circumstance will preclude the application of a categorical exclusions.

Agency Response

FirstNet determinations relating to the existence of extraordinary circumstances that preclude the application of a categorical exclusion will be made on a case-by-case basis and based on a review of the relevant factors (e.g., type of activity, geography, and biology. . .) related to a specific proposed action.

Comment #4

PCIA comments that FirstNet should provide more detail concerning the “nuts and bolts” of its proposed procedures, including specific NEPA and NHPA procedures and timelines for completing the review process where an action requiring FirstNet review is by a private applicant or non-federal entity.

Agency Response

FirstNet intends to provide additional guidance on NEPA and NHPA requirements that may affect a private applicant or non-federal entity on its Web site and through future stakeholder outreach, as appropriate.

Comment #5

PCIA recommends that the FirstNet NEPA implementing procedures provide guidance for determining which agency will be the lead agency in any multi-agency projects.

Agency Response

FirstNet understands the importance of coordinating with other agencies in complying with NEPA and intends to follow the process described in 40 CFR 1501.5 in determining lead and cooperating agencies in multi-agency projects for the purpose of NEPA.

Comment #6

PCIA commented that FirstNet should consider integrating aspects of the Federal Communication Commission's (FCC) environmental and historic preservation processes and procedures, including FCC rules establishing the standard for developing an EA and use of the Tower Construction Notification System (TCNS).

Agency Response

FirstNet will evaluate the effectiveness of these and other processes and procedures in complying with applicable environmental and historic requirements.

Comment #7

U.S. Department of the Interior (DOI) recommends including the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act to the list of requirements to Section 1.07, Environmental Review and Consultation Requirements of NEPA Review.

Agency Response

FirstNet has added the citations for the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act to this section.

Comment #8

DOI recommends the inclusion of language in Section 1.07, Developing the Purpose and Need, which would ensure consideration of all other authorities to which NEPA is supplemental as opposed to simply the FirstNet mission.

Agency Response

FirstNet intends to consider all other relevant authorities during the NEPA review for a proposed action and does not consider further supplemental language in this section to be necessary.

Comment #9

DOI recommends that FirstNet be required to coordinate with federal agencies having jurisdiction by law or special expertise on construction and lighting of its network of towers.

Agency Response

FirstNet understands the importance of coordinating with other agencies in complying with NEPA and intends to follow the process described in 40 CFR 1501.5 in determining lead and cooperating agencies for the purpose of NEPA.

Comment #10

DOI recommends including species covered under the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act to the list of environmentally sensitive resources.

Agency Response

FirstNet has added language to include the species and habitat listed under the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act to the list of environmentally sensitive resources listed in Appendix D.

Comment #11

DOI recommends adding important resources to migratory birds such as sites in the Western Hemisphere Shorebird Reserve and Audubon Important Bird Areas to list of environmentally sensitive resources listed in Appendix D.

Agency Response

FirstNet will consider impacts on migratory birds in areas such as the Western Hemisphere Shorebird Reserve and Audubon Important Bird Areas as part of the NEPA review for its proposed actions, as appropriate, and considers the addition of the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act to Appendix D sufficient to identify and account for impacts on these resources.

Comment #12

DOI suggests that FirstNet consider preparing a programmatic environmental impact statement (PEIS) to determine and address cumulative impacts from authorizing FirstNet projects on those 241 species for which the incremental impact of tower mortality, when added to other past, present, and reasonably foreseeable future actions, is most likely significant, given their overall imperiled status authorizing FirstNet projects, including the impacts on species of birds whose populations are in trouble or otherwise merit special protection.

Agency Response

FirstNet will consider this recommendation as it continues to integrate the NEPA process with its other planning for the nationwide public safety broadband network.

Comment #13

DOI recommends revisions to the procedures that better reflect the impacts on resources under DOI jurisdiction resulting from communication towers, including injury, crippling loss, and death from collision with towers or supporting guy-wire infrastructure and significant issues associated with communication towers involving impacts from non-ionizing electromagnetic radiation.

Agency Response

FirstNet will consider impacts on resources under DOI or other agency jurisdiction as part of the NEPA review for its proposed actions, as appropriate, and considers the Environmental Review Process established in section 1.07 of the procedures a reasonable process for identifying and accounting for impacts on these resources.

Comment #14

A commenter suggested the development and inclusion of a Determination of Adequacy or some form of a checklist to identify and address issues relating to whether an action requires NEPA review.

Agency Response

FirstNet will consider this recommendation as it continues to integrate the NEPA process with its other planning for the nationwide public safety network.

Comment #15

A commenter asked whether FirstNet will have a formal appeal process which allows another agency or the public to make an appeal of an environmental determination or final decision.

Agency Response

FirstNet will comply with the timing of agency action requirements described in 40 CFR 1506.10, but will not have an additional formal appeal process that will allow another agency or the public to make an appeal after FirstNet has made an environmental determination or final decision. Rather, FirstNet anticipates that public and agency involvement relating to NEPA compliance will occur as described in Environmental Review Process established in section 1.07 of its NEPA implementing procedures.

Comment #16

Commenters suggested various minor edits to the document.

Agency Response

FirstNet reviewed these suggestions and made minor word and document edits, as appropriate.

FirstNet Categorical Exclusions

Certain types of actions undertaken by FirstNet will not normally require the completion of an environmental assessment or an environmental impact statement. These categorical exclusions include:

A-1: The issuance of bulletins and information publications that do not concern environmental matters or substantial facility design, construction or maintenance practices.

This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, U.S. Department of Homeland Security, Federal Emergency Management Agency, U.S. Coast Guard, U.S. Navy, U.S. Air Force, U.S. General Services Administration, and the U.S. Department of the Interior.

A-2: Procurement activities related to the day-to-day operation of FirstNet including routine procurement of goods and services. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, U.S. Department of Homeland Security, U.S. Coast Guard, U.S. Navy, and U.S. Air Force.

A-3: Personnel and Administrative Actions. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, U.S. Department of Homeland Security, U.S. Coast Guard, and U.S. Army.

A-4: Purchase of existing facilities or a portion thereof where use or operation will remain unchanged. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Homeland Security.

A-5: Internal modifications or equipment additions (e.g., computer facilities, relocating interior walls) to structures or buildings. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Homeland Security.

A-6: Construction of buried and aerial telecommunications lines, cables, and related facilities. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, U.S. Department of the Interior, and U.S. Department of Energy.

A-7: Construction of wireless telecommunications facilities involving no more than five acres (2 hectares) of physical disturbance at any single site. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

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. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, U.S. Navy, and National Aeronautics and Space Administration (NASA).

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. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

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. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce and U.S. Department of Agriculture.

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. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce and U.S. Department of Agriculture.

A-12: Changes or additions to wireless telecommunication sites, substations, switching stations, telecommunications switching or multiplexing centers, buildings, or small structures requiring new physical disturbance or fencing of less than one acre (0.4 hectare). This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce and U.S. Department of Agriculture.

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). This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

A-14: The construction of telecommunications facilities within the fenced area of an existing substation, switching station, or within the boundaries of an existing electric generating facility site. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

A-15: Testing or monitoring work (e.g., soil or rock core sampling, monitoring wells, air monitoring). This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

A-16: Studies and engineering undertaken to define proposed actions or alternatives sufficiently so that environmental effects can be assessed. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

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. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

A-18: Phase or voltage conversions, reconductoring, or upgrading of existing electric distribution lines or telecommunication facilities. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S. Department of Energy.

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. This categorical exclusion is supported by long-standing categorical exclusions and administrative records. In particular, these include exclusions from the U.S. Department of Commerce and U.S. Department of Agriculture.

IV. 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.). Moreover, any action taken or made by FirstNet is exempt from the requirements of the PRA. See 47 U.S.C. 1426(d). 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.

Dated: April 23, 2014.

Stuart Kupinsky,

Chief Counsel, First Responder Network Authority.