E9-10398. Protocol for Categorical Exclusions Supplementing the Council on Environmental Quality Regulations Implementing the Procedural Provisions of the National Environmental Policy Act for Certain American Recovery and Reinvestment Act Projects

AGENCY:

National Endowment for the Arts.

ACTION:

Notice of final action and request for comments.

SUMMARY:

The National Endowment for the Arts has established a protocol that provides for categorical exclusions under the National Environmental Policy Act (NEPA) for projects funded under the American Recovery and Reinvestment Act (ARRA) that focus on the preservation of jobs (salary support, full or partial, for one or more positions, including support for contracted positions) in the nonprofit arts sector that are threatened by declines in philanthropic and other support during the current economic downturn. The proposed changes would better align NEA implementation of the CEQ NEPA regulations by providing for the efficient and timely environmental review of specific ARRA job preservation actions.

DATES:

Submit comments on or before June 5, 2009. This Protocol is immediately effective upon publication. All comments will be reviewed and considered to determine whether there is a need for potential amendment to the protocol.

ADDRESSES:

Karen Elias, Acting General Counsel, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Room 518, Washington, DC 20506; telefax at (202)-682-5572; TDD at (202)-682-5496; or by electronic mail at [e-mail].

FOR FURTHER INFORMATION CONTACT:

Karen Elias, (202)-682-5418.

SUPPLEMENTARY INFORMATION:

The NEA follows the regulations of the Council on Environmental Quality (CEQ) for complying with NEPA. Projects that focus on preservation of jobs in the nonprofit arts sector and are to be awarded ARRA funds are one type of grant administered by the NEA. The NEA's statutory authority to make grants is at 20 U.S.C. 951, et seq. and includes competitive grants for a variety of projects in various arts forms. The grants provided for under the American Recovery and Reinvestment Act (ARRA) are a particular category of activity that has been reviewed and determined not to have individual or cumulative significant effects on the human environment and therefore are the appropriate subject of a categorical exclusion under NEPA. These grants maintain the jobs and contract support that was in place prior to the economic downturn and do not provide for any new construction or activities with potential environmental effects. The protocol provides for a review to determine whether there are extraordinary circumstances and, in the absence of such circumstances, provide for the grant to proceed without preparation of an Environmental Assessment (EA) or Environmental Impact Study (EIS) under NEPA.

The NEA plans to publish proposed NEPA regulations later this year and the protocol for the categorical exclusion of NEA action on ARRA grant proposals will be included in those proposed NEA NEPA regulations.

Regulatory Ceritifications:

Executive Order 12866

This Protocol has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review.” The Office of Management and Budget has determined that this Protocol is not a “significant regulatory action” under Executive Order 12866; and accordingly, this Protocol has not been reviewed by the Office of Management and Budget. This Protocol affects NEA internal procedures. Whatever costs that may result from this Protocol should be outweighed by the reduction in delay and excessive paperwork from these procedures.

Executive Order 13121

This Protocol only affects the internal procedures of the NEA and accordingly, will not have substantial direct effects on the States, relationships between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this Protocol will not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988

This Protocol meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

The Acting Chairman of the NEA, in accordance with the Regulatory Flexibility Act [5 U.S.C. 605(b)], has reviewed this Protocol and approved it. Because this Protocol only affects the internal procedures of the NEA, it will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This Protocol will not result in an expenditure of $100,000,000 or more in any one year by State, local, and tribal governments, in the aggregate, or by the private sector, nor will it significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This Protocol is not a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Protocol will not result in an annual effect on the economy of $100,000,000 or more, a major increase in costs or prices, significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Environmental Impact

This Protocol supplements CEQ regulations and provides guidance to NEA employees regarding procedural requirements for the application of NEPA provisions to ARRA-funded grants. The 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.

For the reasons set out in the preamble, the National Endowment for the Arts establishes the following Protocol:

Protocol for Categorical Exclusion of Recovery Projects

Purpose: Establishment of National Environmental Policy Act (NEPA) Categorical Exclusions for National Endowment for the Arts American Recovery and Reinvestment Act (ARRA) Grants.

Policy: The National Endowment for the Arts follows the regulations of the Council on Environmental Quality (CEQ) for complying with NEPA. Pursuant to these regulations, NEA establishes the following categorical exclusion for projects that focus on the preservation of jobs (salary support, full or partial, for one or more positions, including support for contracted positions) in the nonprofit arts sector that are threatened by declines in philanthropic and other support during the current economic downturn. Such ARRA grants are one type of grant administered by the NEA. The NEA's statutory authority to make grants is at 20 U.S.C. 951, et seq., and includes competitive grants for a variety of projects in various art forms. Awards can be for activities such as performing arts, arts education, arts touring projects (dance, theater, musical theater, music and opera), museum and visual arts exhibitions. Outdoor projects may include short-term arts or music festivals, redesigning public parks and other public spaces. The ARRA grants are a particular category of activity that has been determined not to have individual or cumulative significant effects on the human environment, and absent extraordinary circumstances (attached), are excluded from preparation of an Environmental Assessment (EA) or Environmental Impact Study (EIS) under NEPA. The extraordinary circumstances are considered prior to grants approval.

Applicability: This protocol applies to all grants awarded with ARRA funds by the National Endowment for the Arts. The protocol will be effective immediately and we will consider comments submitted on the protocol when developing the NEA NEPA regulation that will include this categorical exclusion.

Responsibilities

The Chairman of the NEA has the final authority over the NEA's responsibilities over the NEPA process and has approved this protocol and will approve the NEA NEPA regulation.

The Senior Deputy Chairman is the Senior Environmental Advisor to the Chairman and is responsible for NEPA policy, guidance, and oversight. The Senior Deputy Chairman will oversee the application of the categorical exclusion and development of the NEA NEPA regulation. In the absence of the Senior Deputy Chairman, the General Counsel will oversee the application of the categorical exclusion and development of the NEA NEPA regulation.

The General Counsel is responsible for providing legal guidance as to NEPA, including correspondence from CEQ and other agencies concerning matters related to NEPA.

Extraordinary Circumstances for ARRA Grant Categorical Exclusion

Any of the following circumstances preclude the use of this CE:

(a) Reasonable likelihood of significant effects on public health, safety, or the environment.

(b) Reasonable likelihood of significant environmental effects (direct, indirect, and cumulative).

(c) Imposition of uncertain or unique environmental risks.

(d) Greater scope or size than is normal for this category of action.

Dated: April 30, 2009.

Kathy Plowitz-Worden,

Panel Coordinator, Panel Operations, National Endowment for the Arts.