NOTICE OF NEWLY ESTABLISHED NEPA CATEGORICAL EXCLUSIONS

AGENCY:

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

ACTION:

Notice.

SUMMARY:

The National Information and Technology Administration (NTIA) has identified categorical exclusions (CEs) established by the First Responder Network Authority (FirstNet Authority), an independent authority within NTIA, that cover categories of actions under the National Environmental Policy Act (NEPA) that NTIA proposes to take. This notice identifies the FirstNet Authority CEs and NTIA's categories of proposed actions for which it intends to use FirstNet Authority's CEs and describes the consultation between the agencies.

Federal Register Notice

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DATES:

The CEs identified below are available for NTIA to use for its proposed actions effective April 2, 2024.

FOR FURTHER INFORMATION CONTACT:

Amanda Pereira, NTIA, telephone number 202-834-4016, email

apereira@ntia.gov.

SUPPLEMENTARY INFORMATION:

I. Background

NEPA and CEs

Congress enacted the National Environmental Policy Act, 42 U.S.C. 4321-4347, (NEPA) in order to encourage productive and enjoyable harmony between humans and the environment, recognizing the profound impact of human activity and the critical importance of restoring and maintaining environmental quality to the overall welfare of humankind. 42 U.S.C. 4321, 4331. NEPA seeks to ensure that agencies consider the environmental effects of their proposed major actions in their decision-making processes and inform and involve the public in that process. NEPA created the Council on Environmental Quality (CEQ), which promulgated NEPA implementing regulations, 40 CFR parts 1500 through 1508 (CEQ regulations).

Under the CEQ regulations, to comply with NEPA, agencies determine the appropriate level of review of any major Federal action—an environmental impact statement (EIS), environmental assessment (EA), or categorical exclusion (CE). 40 CFR 1501.3. If a proposed action is likely to have significant environmental effects, the agency must prepare an EIS and document its decision in a record of decision. 40 CFR part 1502, 1505.2. If the proposed action is not likely to have significant environmental effects or the effects are unknown, the agency may instead prepare an environmental assessment (EA), which involves a more concise analysis and process than an EIS. 40 CFR 1501.5. Following the EA, the agency may conclude that the action will have no significant effects and document that conclusion in a finding of no significant impact. 40 CFR 1501.6. However, if, after the analysis, the agency concludes that the action is likely to have significant effects, then an EIS is required.

Under NEPA and the CEQ regulations, a Federal agency also can establish CEs—categories of actions that the agency has determined normally do not significantly affect the quality of the human environment—in their agency NEPA procedures. 42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a CE could apply to a proposed action, it then evaluates the proposed action for extraordinary circumstances in which a normally excluded action may have a significant effect. 40 CFR 1501.4(b). If no extraordinary circumstances are present, the agency may apply the CE to the proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 40 CFR 1501.4. If extraordinary circumstances are present, the agency nevertheless may still apply the categorical exclusion to the proposed action if it determines that there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects.

Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a Federal agency to adopt another Federal agency's CEs for its own proposed actions. 42 U.S.C. 4336c. To use another agency's CEs under section 109, the “adopting agency” must: identify the relevant CEs listed in the NEPA procedures of another agency (the “establishing agency”) that covers the adopting agency's category of proposed actions or related actions; consult with the establishing agency to ensure that the proposed adoption of the CEs for a category of actions is appropriate; identify to the public the CEs that the adopting agency plans to use for its proposed actions; and document adoption of the CE. 42 U.S.C. 4336c. NTIA has prepared this notice to meet these statutory requirements and identify to the public the FirstNet Authority CEs that NTIA is adopting.

NTIA's Programs

NTIA is the Executive Branch agency that is principally responsible for advising the President on telecommunications and information policy issues. NTIA's programs and policies focus largely on expanding broadband internet access and adoption in the United States, expanding the use of spectrum by all users, and ensuring that the internet remains an engine for continued innovation and economic growth. NTIA is engaged in a range of efforts to increase internet access and adoption.

In November 2021, Congress passed the Infrastructure Investment and Jobs Act (“IIJA”).¹ The law provides NTIA with $48.2 billion to establish five new broadband grant programs and to further implement the previously established Tribal Broadband Connectivity Program (“TBCP”). The largest new program is the Broadband Equity, Access, and Deployment Program (BEAD), which seeks to expand high-speed internet access by funding planning, infrastructure deployment, and adoption programs in all 50 states, Washington DC, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

II. FirstNet Authority Categorical Exclusions

NTIA has identified the following CEs listed in appendix B of the FirstNet Authority's Procedures for Implementing the National Environmental Policy Act.² Each of the FirstNet Authority CEs includes conditions on the scope or application of the CE within the text of the numbered paragraphs listed below. Under each CE, NTIA has described categories of proposed actions for which NTIA contemplates using the CE at this time; NTIA may apply the CEs identified below to other activities where NTIA determines the CE covers the activity and no extraordinary circumstances are present.

1. [B.3] Construction of buried and aerial telecommunications lines, cables, and related facilities.