National Environmental Policy Act Procedures and Categorical Exclusions, 22688-22695 [2024-06751]

Agencies

• DEPARTMENT OF COMMERCE
• National Telecommunications and Information Administration

[Federal Register Volume 89, Number 64 (Tuesday, April 2, 2024)]
[Notices]
[Pages 22688-22695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06751]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket Number: 240325-0086]
RIN 0660-XC056


National Environmental Policy Act Procedures and Categorical 
Exclusions

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

ACTION: Notice.

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SUMMARY: The National Telecommunications and Information Administration 
(``NTIA'') publishes this Notice that it will follow the First 
Responder Network Authority's (``FirstNet Authority'') National 
Environmental Policy Act (``NEPA'') procedures on an interim basis with 
modifications to account for NTIA's internal organization and establish 
30 new categorical exclusions (``CEs'') in compliance with NEPA, 
Council on Environmental Quality (``CEQ'') regulations, and other 
related authorities.

DATES: The use of these procedures and CEs will take effect as of April 
2, 2024.

FOR FURTHER INFORMATION CONTACT: Amanda Pereira, Environmental Program 
Officer, National

[[Page 22689]]

Telecommunications and Information Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue NW, Room 4878, Washington, DC 20230, 
by phone at 202-834-4016, or by email at ntia.gov">apereira@ntia.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    NTIA is the executive branch agency that is principally responsible 
for advising the President on telecommunications and information policy 
issues. NTIA's programs and policymaking 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.
    On November 15, 2021, President Biden signed the Infrastructure 
Investment and Jobs Act, Public Law 117-58, (``IIJA'') into law. 
Passage of the IIJA is a significant step forward in achieving the 
Biden-Harris Administration's goal of providing broadband access to the 
entire United States. The IIJA sets forth a $65 billion investment into 
broadband; $48.2 billion of that investment will be administered by 
NTIA. This investment will leverage NTIA's experience in promoting 
broadband infrastructure development and digital inclusion efforts. To 
facilitate NTIA's compliance with the IIJA and because of the critical 
need to expand and secure broadband access across the United States, 
NTIA must find opportunities to accelerate effective use of its 
appropriated funding while ensuring compliance with all relevant 
authorities, including NEPA.
    Presently, CEQ is undertaking a multiphase rulemaking process to 
review and revise the NEPA implementing regulations.\1\ Therefore, NTIA 
proposed to establish new CEs and otherwise follow the existing NEPA 
implementing procedures of the FirstNet Authority, an independent 
authority within NTIA, in the interim while CEQ completes its 
rulemaking processes. Following the FirstNet Authority's procedures \2\ 
will facilitate the IIJA's large-scale investment in NTIA programs and 
the need for NTIA to fulfill the mandates of the IIJA in a timely 
manner, by ensuring NTIA make the most efficient use of time and 
available funding and resources to fulfill its environmental analysis 
and decision-making responsibilities. Following CEQ's revisions to the 
NEPA regulations, NTIA intends to propose comprehensive NEPA 
procedures. In the interim, NTIA will rely on the FirstNet Authority 
procedures consistent with how they are written and currently executed, 
with the exception of the Roles and Responsibilities section, which 
NTIA will address by publishing guidance on its website reflecting 
NTIA's internal organization. In addition, NTIA is establishing and 
publishing CEs specific to NTIA's actions.
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    \1\ 86 FR 55759 (Oct. 7, 2021).
    \2\ https://www.firstnet.gov/sites/default/files/FirstNet_Implementing_Procedures_January_2018.pdf.
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    Accordingly, on March 30, 2023, NTIA published for comment its 
proposal to rely on the FirstNet Authority's NEPA implementing 
procedures and establish NTIA's CEs.\3\ Publication of the Notice began 
a 30-day comment period that ended on May 1, 2023. NTIA received eight 
substantive submissions from the broadband and telecommunications 
community, including one state regional cooperative and seven industry 
associations. A complete set of comments filed in response to the 
proposal may be viewed at https://www.regulations.gov, searching for 
Docket ID NTIA-2023-0004.
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    \3\ 88 FR 19089 (March 30, 2023).
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    In response to that Notice, commenters encouraged NTIA to maintain 
or incorporate CEs established by the Department of Commerce in 2009 
(which have been used by NTIA since 2009) and to acknowledge the 
applicability of CEs established by FirstNet in 2018 to NTIA's actions. 
NTIA undertook a comparative review of the existing Department programs 
to identify the applicable Department-wide CEs already available to 
NTIA. In light of this review, NTIA is not finalizing the CEs proposed 
as B-5 and C-8 because the actions they cover are encompassed by 
existing Department-wide CEs. In response to comments, NTIA also made 
minor editorial revisions to several of the proposed CEs for 
consistency with Department-wide and FirstNet Authority CEs, as 
explained throughout this Notice, and updated its administrative record 
to explain the changes. This Notice finalizes newly established CEs 
that NTIA may apply to its proposed actions and the implementing 
procedures it will use in the interim. Additionally, where appropriate, 
NTIA may continue to apply Departmental CEs that are currently 
available to NTIA when they would best support NTIA's mission and NEPA 
activities. Accordingly, while this Notice establishes new CEs, in so 
doing NTIA clarifies that Departmental CEs remain applicable to NTIA 
programs and that it may adopt or establish additional CEs through 
separate and subsequent processes.
    Commenters generally supported NTIA's interim use of FirstNet's 
NEPA implementing procedures; however, NTIA received several comments 
expressing concerns about how NTIA will implement NEPA for the 
Broadband Equity Access and Deployment (BEAD) Program. In the near 
term, NTIA will follow the FirstNet implementing procedures for BEAD 
and all other NTIA actions and will also consider all procedural 
comments in developing its final implementing procedures once CEQ 
completes its rulemaking process.
    NTIA consulted with CEQ on the proposed and final revisions to the 
FirstNet Authority's NEPA implementing procedures and NTIA's newly 
established CEs. CEQ issued a letter stating that it has reviewed the 
revised procedures, including the newly established CEs, and found them 
to be in conformity with NEPA and CEQ regulations.\4\ The final CEs and 
administrative record will be available for review at ntia.gov.
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    \4\ See CEQ NTIA Conformity Letter (March 1, 2024) available at 
www.ntia.gov.
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II. Comments and Agency Responses

    Comments on the proposed procedures and CEs included several 
similar positions, inquiries both within and outside the scope of the 
Notice, and recommendations stemming from the proposed procedural 
adoption and development of categorical exclusions. NTIA has carefully 
considered each of the comments submitted, grouped and summarized the 
comments by issues raised, and responded accordingly.

NEPA Should Not Apply to BEAD

    Comment: One commenter was concerned that imposing NEPA's 
environmental review standards on BEAD recipients will have the effect 
of unduly delaying the construction of broadband networks by adding 
unnecessarily burdensome and time-consuming environmental review that 
is not required by the statute. As a result, the commenter suggested 
that NTIA should determine that NEPA does not apply to the BEAD 
program.
    Response: NTIA has determined that the issuance of $42.5B in 
Federal grant funding meets NEPA's statutory definition of major 
Federal action because these Federal funds are under substantial 
Federal control through requirements associated with 2 CFR part

[[Page 22690]]

200. NEPA requires Federal agencies to interpret and administer Federal 
laws in accordance with NEPA's policies to ensure sound decision 
making. NTIA is committed to work with CEQ to find ways to ensure NEPA 
efficiencies, including through the development of these CEs.

Multiple Permitting and Approval Processes

    Comment: Several commenters noted that broadband installations 
often require permits and approvals on Federal lands, along interstate 
and state highways, through local and private rights-of-way (ROWs), and 
on poles and across railroad crossings across and from multiple 
entities and jurisdictions. Commenters expressed a general need for an 
efficient and streamlined approach to NTIA's environmental review and 
other approvals necessary to reach the unserved and underserved in a 
timely manner.
    Response: NTIA recognizes that the execution and deployment of 
projects throughout its programs may involve multiple permits, 
approvals, entities and jurisdictions. NTIA is proactively engaging 
with Federal, State, and local agencies and Tribes to reduce 
redundancies, avoid duplicative reviews, and attempt to streamline 
permitting and approvals processes for these important broadband 
infrastructure projects.
    As a result of IIJA's large-scale investment in NTIA programs and 
the need for NTIA to fulfill the mandates of IIJA, in 2022, NTIA stood 
up a Permitting Tiger Team to identify the most efficient approach to 
fulfilling the agency's environmental analysis and decision-making 
responsibilities under NEPA. NTIA's extensive work with CEQ to finalize 
these newly established CEs directly benefits recipients by providing a 
thoughtful and thorough streamlining tool that can improve the 
predictability of reviews where NTIA is the lead agency. In addition, 
if other agencies see benefits to adopting these newly established CEs 
or other applicable CEs to efficiently execute aspects of broadband 
deployment in their jurisdiction, NTIA will coordinate with them to do 
so when appropriate.
    Through its participation in the American Broadband Initiative 
(ABI) and its roles and responsibilities under the MOBILE NOW Act, NTIA 
participates in the ``Streamlining Federal Permitting'' workstream (led 
by the Departments of Homeland Security, the Interior, and Agriculture) 
and has aligned interagency colleagues in a range of initiatives to 
streamline and facilitate the deployment of communications 
installations. For example, NTIA identified a potential bottleneck for 
deploying communication facilities on Tribal lands managed by the 
Bureau of Indian Affairs (``BIA''). NTIA and BIA have executed a 
memorandum of understanding (``MOU'') that defines the relationship 
between NTIA and BIA and their individual and collective roles and 
responsibilities in complying with environmental, historic 
preservation, and cultural resources requirements related to the Tribal 
Broadband Connectivity Program (``TBCP'') established by the 
Consolidated Appropriations Act of 2021 (``CAA''). The MOU streamlines 
NEPA reviews and environmental permitting for both NTIA, as the lead 
Federal agency for grant programs, and BIA, as authorized to grant ROWs 
over and across land held in trust by the United States under the 
Indian Right-of-Way Act.
    In July 2023, NTIA circulated its Federal Permitting Coordination 
Strategy to obtain input from Federal permitting agencies. In August 
2023, NTIA began implementing strategies that foster open communication 
so that project-level problems and delays can be identified as early as 
possible, and collaborative solutions can be developed. NTIA has 
provided predictive mapping tools to assist permitting agencies in 
identifying and planning for application surges and has worked with the 
Federal Permitting Improvement Steering Council to fund supplemental 
permitting staff and resources.
    At the project level, NTIA environmental reviewers work closely and 
cooperatively with Federal agencies when projects are sited on 
federally managed lands and will continue to do so in accordance with 
new obligations under NEPA that require the designation of a lead 
agency when multiple agencies have independent but intersecting NEPA 
responsibilities on a single action. In such instances, NTIA engages in 
early coordination to align its approvals with the authorities of 
Federal land managing agencies, which have the expertise and local area 
knowledge of the resources and communities potentially affected by 
proposed projects, with the goal of reducing or eliminating duplication 
of effort wherever possible.

NTIA Should Adopt the Findings of Other Agencies

    Comment: Commenters also noted that environmental reviews are often 
required by multiple agencies and may require redundant and duplicative 
analysis. They suggested that, when projects require review by multiple 
agencies, NTIA should adopt the findings of the other Federal agency or 
agencies without further environmental review to support compliance 
with NEPA.
    Response: While NTIA has an independent obligation to ensure that 
analysis of its actions meets legal and technical sufficiency 
requirements, NTIA strives to reduce or eliminate duplication of effort 
to gain efficiency in the environmental compliance process. Changes to 
NEPA as a result of the Fiscal Responsibility Act of 2023 (FRA) require 
that ``[t]o the extent practicable, if a proposed agency action will 
require action by more than one Federal agency and the lead agency has 
determined that it requires preparation of an environmental document, 
the lead and cooperating agencies shall evaluate the proposal in a 
single environmental document.'' Additionally, where NTIA has an action 
that is substantially the same as one considered in another agency's 
NEPA document or categorical exclusion determination, NTIA will 
consider adopting it if consistent with 40 CFR 1506.3.

NEPA Approvals Should Be Provided at Grant Award

    Comment: One commenter noted that competition for fiber contractors 
and availability of materials are challenging to project timelines and 
suggested that providing NEPA approvals at grant award would enable 
grantees to immediately begin construction.
    Response: NTIA can approve projects when there is an ``actionable'' 
project and NEPA documentation is complete. A project is actionable 
once NTIA has decided to award a grant. To make a NEPA decision on a 
project, NTIA must have adequate information about the project to 
evaluate the project's potential environmental impacts. NTIA may 
approve CEs for projects with no ground disturbance and no impacts on 
buildings or structures upon grant award if the application includes 
sufficient information to support such a determination. Otherwise, NTIA 
will either conduct the NEPA review based on the information the 
grantee provides or condition the award on provision of sufficient 
information to allow NTIA to complete the NEPA review prior to 
releasing funds.
    While NTIA encourages grantees to provide a detailed description of 
their proposed project and the area in which it would be sited with 
their grant applications, NTIA does not require grant applicants to 
develop a full NEPA analysis prior to award. If a grantee voluntarily 
elects to submit a complete

[[Page 22691]]

environmental analysis pre-award, NTIA will review this information to 
ascertain if a NEPA decision is possible at the time of grant award.

Clarify Environmental Review Timelines

    Comment: Some commenters noted that the environmental analysis and 
review process could delay construction and put projects and grant 
funding at risk and requested that NTIA clarify buildout deadlines and 
extensions and environmental review timelines under IIJA. Commenters 
also thought that NTIA should consider applying ``shot clocks'' to 
allow projects to move forward within an established timeframe even if 
environmental review has not been completed.
    Response: Recent changes to NEPA require agencies to conclude 
environmental analysis within 1 year for EAs and within 2 years for 
EISs. NTIA has previously estimated that the CE process can take 
approximately 3 to 6 months.\5\ NTIA's newly established CEs ensure 
that this streamlined NEPA option is available to most grant funded 
broadband projects. As a cooperating agency to FirstNet's Programmatic 
EIS documents, NTIA is further exploring how to use these analyses to 
streamline NEPA for projects that may not qualify as categorically 
excluded but where the substantial record of past review supports that, 
where mitigation measures and best management practices are 
incorporated into the proposed action, such measures and practices can 
eliminate potentially significant environmental impacts.
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    \5\ NEPA: Environmental and Historic Preservation Compliance 
(webinar), https://youtu.be/BzYFheHqL0I?si=6yOB-7vibAMbpmFT.
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    NTIA does not currently apply shot clocks to environmental review 
but makes every effort to complete the NEPA review process in a timely 
and efficient manner upon receipt of legally and technically sufficient 
analysis.

Allow Segmentation of Projects

    Comment: Several commenters suggested that NTIA should allow the 
environmental review of projects to proceed in segments to enable 
recipients to initiate construction of parts of projects prior to the 
completion of NEPA for the full project.
    Response: NEPA and the CEQ regulations do not allow an agency to 
break a single project into multiple components (i.e., phased or 
staged) without completing environmental review for the entire project, 
whether by CE, EA, or EIS.\6\ In the rare cases where a grant includes 
multiple subgrantees/subrecipients proposing projects that are 
completely independent of each other, separate NEPA analyses are 
appropriate, NTIA may find sufficient ``independent utility'' to allow 
one segment to proceed while others are still receiving NEPA review.\7\
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    \6\ Natural Resources Defense Council, Inc. v. U.S. Nuclear 
Regulatory Commission, 196 U.S. App. D.C. 354, 606 F.2d 1261, 1269 
(D.C. Cir. 1979).
    \7\ Save Barton Creek Association v. Federal Highway 
Administration, 950 F.2d 1129, 1133 (5th Cir. 1992).
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    NTIA assesses independent utility based on a project's independent 
function, absent the construction of other components of the project. 
Only component parts of a grant that could be constructed even if the 
other phases were not built and can functionally operate on their own 
can be considered as separate, single, and complete projects with 
independent utility. In contrast, component parts of a grant or a 
multi-phase project that depend upon other projects, phases, stages, or 
segments of the project do not have independent utility.\8\
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    \8\ See 40 CFR 1501.9(e) and 1502.4 (Mentioning the concept of 
``connected actions'' and ``unconnected single actions.'').
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    When a Federal action is divided and analyzed into smaller separate 
components it is known as ``segmentation.'' \9\ When an agency 
intentionally attempts to affect the NEPA analysis by dividing a 
Federal action into smaller components in order to allow those smaller 
components to avoid studying the overall impacts of the single project, 
improper segmentation has occurred.\10\ Furthermore, until an agency 
issues a NEPA determination for the single project, any action taken 
for component parts would limit the choice of reasonable alternatives 
and could prejudice the ultimate NEPA decision (40 CFR 1506.1). Thus, 
it is unlawful for all agencies, including NTIA, to evade their 
responsibilities under NEPA by artificially dividing a major Federal 
action into smaller components, each without significant impact.
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    \9\ West Chicago, IL. v. U.S. Nuclear Regulatory Commission, 701 
F.2d at 650 (7th Cir. 1983).
    \10\ O'Reilly v. U.S. Army Corps of Engineers, 950 F.2d 1129 
(5th Cir. 2007).
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Remove the Requirement for Draft EAs and EISs To Be Submitted and 
Reviewed and the Public Comment Period for EAs

    Comment: Several commenters suggested that NTIA should remove the 
requirement for Draft EAs and EISs to be submitted and reviewed as it 
adds an additional layer of review and time to the environmental review 
process. One commenter suggested that NTIA should not utilize a formal 
public notice and comment cycle unless the project is similar to one 
that normally needs an EIS or is unprecedented.
    Response: CEQ regulations are clear that an EIS is a two-stage 
process that requires agencies to publish a Draft EIS (40 CFR 1502.9). 
NTIA has historically required notice of EAs to allow for public 
comment, consistent with NEPA's commitment to transparency and public 
involvement. NTIA has elected to follow FirstNet's NEPA implementing 
procedures and will consider all procedural comments in developing its 
final NEPA implementing procedures after CEQ concludes its rulemaking 
process.

Streamline NHPA Process

    Comment: Several commenters suggested that NTIA should streamline 
its process for compliance with section 106 of the National Historic 
Preservation Act (NHPA). They noted that through program alternatives 
and/or adoption of other agencies' processes, NHPA review could also be 
streamlined to avoid redundancies and delays.
    Response: NEPA and NHPA are separate statutes. While CEs are not 
applicable to section 106 reviews, the Advisory Council on Historic 
Preservation (ACHP) NHPA implementing regulations allow for ``program 
alternatives'' that can improve the effectiveness and efficiency of the 
standard section 106 process and streamline routine reviews while 
focusing effort on the more complex projects or historic properties 
most important to communities.\11\ The ACHP has issued several program 
alternatives for telecommunications projects that apply to NTIA grant 
funded activities.
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    \11\ 36 CFR 800.14.
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    NTIA currently applies the ACHP's Program Comment for Streamlining 
Section 106 Review for Wireless Communications Facilities Construction 
and Modification Subject to Review Under the FCC Nationwide 
Programmatic Agreement to eliminate the duplicative section 106 review 
of facilities licensed or approved by the FCC.
    In addition, NTIA requested that the ACHP amend the Program Comment 
for Communications Projects on Federal Lands and Property to expand its 
availability beyond public lands and establish it as the section 106 
review process for all broadband projects. On March 14, 2024, in 
response to NTIA's request, the ACHP announced an amendment that makes 
the provisions of the 2017 program comment, which establishes 
streamlined historic preservation permitting rules for

[[Page 22692]]

communications infrastructure projects on Federal lands, available to 
all Internet for All programs and broadband projects from all Federal 
agencies, both on and off Federal lands.\12\
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    \12\ ACHP Announces Program Comment Amendment to Support 
President Biden's Broadband Initiative, Mar. 14, 2024, available at, 
ACHP Announces Program Comment Amendment to Support President 
Biden's Broadband Initiative [verbar] Advisory Council on Historic 
Preservation.
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    NTIA recognizes its obligations to conduct meaningful consultation 
with State Historic Preservation Offices,\13\ Tribal Historic 
Preservation Offices,\14\ federally recognized Tribes,\15\ and the 
public \16\ and will continue to work with the ACHP and consulting 
parties to streamline its processes and create efficiencies that 
eliminate section 106 duplication and redundances while appropriately 
taking historic preservation into account.
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    \13\ 36 CFR 800.2(c)(1).
    \14\ 36 CFR 800.2(c)(2)(i)(A).
    \15\ 36 CFR 800.2(c)(2)(i)(B) and (c)(2)(ii), and 36 CFR 
800.4(a)(4).
    \16\ 36 CFR 800.2(c)(5) and (d).
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Proposed CEs Should Not Change Once NTIA Finalizes Its Implementing 
Procedures

    Comment: One commenter urged that NTIA not alter the proposed CEs 
once NTIA is able to draft and finalize its own NEPA implementing 
procedures.
    Response: While the use of the FirstNet Authority's NEPA 
implementing procedures will be interim until CEQ completes its 
rulemaking process and NTIA establishes final NEPA implementing 
procedures, NTIA considers these CEs final and does not intend to 
modify these newly established CEs in the near future.

NTIA Should Maintain Other Applicable Department of Commerce CEs

    Comment: One commenter noted that the Department of Commerce has 
CEs that are available to NTIA, several of which are applicable to 
broadband deployments, and NTIA should continue to use those CEs when 
helpful. Several commenters noted the applicability of FirstNet CEs to 
NTIA actions and requested that NTIA maintain consistency in its 
approach, including for extraordinary circumstances.
    Response: NTIA is currently using the Department's CEs to execute 
its programs. NTIA also made limited changes to the text of the 
proposed CEs to align them with the FirstNet CEs. While this Notice 
establishes new CEs, in so doing, NTIA clarifies that Departmental CEs 
remain applicable to NTIA programs and that it may adopt or establish 
additional CEs through separate and subsequent processes.

Ensure That NTIA's CEs Reflect That Wireless Deployment Is Different 
Than Wireline

    Comment: One commenter noted FirstNet's charge to build a wireless 
broadband network and urged NTIA to ensure that its final CEs 
explicitly and unequivocally contemplate the installation of wireline 
infrastructure, as wireless backhaul and wireline networks are 
different.
    Response: NTIA recognizes this point of clarification and the 
differences between wireless backhaul and a wireline network. NTIA's 
CEs address the full range of the agency's administrative, real 
property/facility, and operational activities and are intended to apply 
to broadband networks that are fiber, wireless, or a combination of the 
two. In response to this comment, NTIA made minor modifications to CEs 
C-4 and C-8 (originally proposed as C-9). While this Notice establishes 
new CEs, NTIA clarifies that Departmental CEs remain applicable to NTIA 
programs and that it may adopt or establish additional CEs through 
separate and subsequent processes.

Create CE for Two-Way Dispatch Communications for Critical 
Infrastructure Industry

    Comment: One commenter suggested that NTIA should consider a CE for 
commercial service providers that offer primarily two-way dispatch 
communications for the critical infrastructure industry.
    Response: NTIA has determined that CEs B-5 and C-7 are broad enough 
to support the telecommunication towers, antennas, and support/
associated equipment required for such deployment; therefore, no 
additional specific CE is required.

Clarify CE C-8 (Originally Proposed as C-9) Applicability and Remove 
Caveat Regarding Existing ROWs

    Comment: Several commenters requested that NTIA clarify whether CE 
C-8 applies to aerial and buried fiber construction. Additionally, some 
commenters suggested that restricting the CE's applicability to 
construction within existing ROWs was unduly burdensome.
    Response: NTIA intends for CE C-8 to apply to both aerial and 
buried fiber optic construction. NTIA could apply this CE either to 
direct or grant-funded actions for such activities as fiber 
installation through trenching, vibratory plowing, or directional 
boring, installation of fiber or cable into existing conduit, and 
aerial fiber or cable deployment. For clarity, NTIA has edited CE C-8 
to read as follows: ``Acquisition, installation, reconstruction, repair 
by replacement, and operation of aerial or buried utility (e.g., water, 
sewer, electrical), communication (e.g., fiber optic cable, data 
processing cable and similar electronic equipment), and security 
systems that use existing rights-of-way, easements, grants of license, 
distribution systems, facilities, or similar arrangements.''
    NTIA has generated a substantial record of past analyses supporting 
the conclusion that sensitive resources are unlikely to occur within 
``existing rights-of-way, easements, grants of license, distribution 
systems, facilities, or similar arrangements'' that are presumably 
previously disturbed and regularly maintained, and thus potentially 
significant impacts to sensitive resources within these corridors is 
unlikely. In joint comments, the Rural Broadband Association and the 
National Rural Electric Cooperative Association noted that the 
deployment of wireline broadband networks typically include buried and 
aerial fiber optic cable ``in rights-of-way or easements,'' 
substantiating that these CEs should apply in most cases.

Extraordinary Circumstances Are Vague and Will Force Most Projects Into 
an EA

    Comment: Several commenters requested that NTIA provide more 
concrete parameters for extraordinary circumstances and objected to the 
``reasonable likelihood'' standard as vague.
    Response: Consistent with 40 CFR 1501.4(b) of CEQ regulations, when 
considering applying a CE NTIA is required to evaluate an action for 
circumstances in which a normally excluded action may have a 
significant effect. In response to comments, NTIA considered the need 
for grant recipients to clearly understand extraordinary circumstances 
in order to be able to identify and avoid them in project planning and 
made clarifying edits and modified the language to remove ``reasonable 
likelihood'' references. Extraordinary circumstance 8 was further 
edited to clarify that it would not apply to an action taken in 
proximity to a hazardous waste site or involving the handling of 
hazardous substances if NTIA determines the action is consistent with 
an approved remediation plan. NTIA also agrees that extraordinary 
circumstance 9 should comport with established and industry-

[[Page 22693]]

recognized FCC exposure limits. The revised extraordinary circumstance 
9 states, ``Reasonable likelihood that the proposed action would 
involve human exposure to ionizing or non-ionizing radiation or use of 
any radiation in excess of the Federal Communications Commission's 
established Maximum Permissible Exposure limits for human exposure to 
Radiofrequency Electromagnetic Energy fields.''

Clarify the Low-Income and Minority Community Provision in 
Extraordinary Circumstance 7

    Comment: Two commenters suggested that NTIA should clarify how 
grantees should analyze extraordinary circumstance 7 concerning low-
income and minority communities, since, by its nature, an increase in 
broadband availability is a positive impact to low-income and minority 
communities.
    Response: As a point of clarification, NTIA's CEs are intended to 
encompass the entirety of NTIA's actions, short- and long-term and 
across business units, beyond IIJA. The Low-Income and Minority 
Community provision in extraordinary circumstance 7 is directly related 
to the concept of environmental justice as memorialized in Executive 
Order (E.O.) 12898 and section 3(a)(ix) of E.O. 14096, Revitalizing Our 
Nation's Commitment to Environmental Justice (April 2023) that 
reinforces and codifies longstanding Federal agency practice regarding 
environmental justice and NEPA. Environmental justice impacts and 
analyses could differ across different projects and programs.\17\
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    \17\ For further guidance, see CEQ's Environmental Justice: 
Guidance Under the National Environmental Policy Act, and EPA's 
Promising Practices for EJ Methodologies in NEPA Reviews.
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    Given the BEAD program's likely benefits to communities with 
environmental justice concerns, addressing this extraordinary 
circumstance can be accomplished with a fairly simple analysis of the 
demographics of the community within the project area and an 
explanation of how that community would benefit from the project. (Such 
benefits would not discount an extraordinary circumstance giving rise 
to the potential of significant effects, which would require an EA or 
EIS). NTIA has provided and will continue to make available examples of 
previous projects that have received NTIA grants to demonstrate the 
level of environmental analysis required for this extraordinary 
circumstance.

III. Revisions to Specific Categorical Exclusions

    NTIA is not including in this Notice the CEs proposed as B-5 and C-
8 because the actions they cover are encompassed by existing 
Department-wide CEs. In addition, NTIA has responded to comments on the 
proposed set of CEs and list of extraordinary circumstances by 
incorporating the following seven clarifications to specific CEs and 
framing modifications that affect all 13 extraordinary circumstances.
    B-6 (originally proposed as B-7): In response to comments 
expressing support for the existing Department CEs, including FirstNet 
CEs, NTIA clarifies that Departmental CEs remain applicable to NTIA 
programs. NTIA made an editorial change removing the qualifier ``space 
within'' existing facilities to ensure that B-7 is consistent with the 
existing FirstNet CE A-4 and because this qualifier does not provide 
any additional information about how NTIA may apply the CE.
    C-4: In response to comments expressing support for the existing 
Department CEs, including FirstNet CEs, NTIA clarifies that 
Departmental CEs remain applicable to NTIA programs. NTIA made changes 
to promote consistency between these rules, including ensuring that 
improvements of land remain covered and that, consistent with the 
Department's A-2, actions taking place in a developed area may be 
categorically excluded where no extraordinary circumstances apply. NTIA 
also clarified that this CE is applicable to both wired and wireless 
facilities.
    C-5: This CE is established as originally proposed with minor 
editorial changes.
    C-8 (originally proposed as C-9): In response to comments 
requesting that NTIA clarify that CE C-8 included both wireline and 
wireless infrastructure, NTIA has specified its applicability to both 
aerial and buried utilities, equipment, and systems.
    Extraordinary Circumstances (General). In response to multiple 
comments identifying concerns that the ``reasonable likelihood'' 
measure was overly broad, vague, and subjective, NTIA modified the 
language to promote clarity and facilitate the assessment of how these 
13 factors apply to otherwise categorically excluded actions.
    EC-8: NTIA removed the qualifiers ``unmitigable'' (construction 
impacts) and ``non-permittable'' (generation) to clarify that CEs are 
not presumed to apply to actions involving contaminated or hazardous 
waste sites or substances.

IV. Final Categorical Exclusions and Extraordinary Circumstances

Categorical Exclusions

Administrative Actions
    A-1: Personnel, fiscal, management, and administrative activities, 
including recruiting, processing, paying, recordkeeping, budgeting, 
personnel actions, contract administration, and travel.
    A-2: Preparation, modification, and issuance of policy directives, 
rules, regulations, procedures, guidelines, guidance documents, 
bulletins, and informational publications that are of an 
administrative, financial, legal, technical, or procedural nature, for 
which the environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will be, in 
whole or part, subject later to the NEPA process, either collectively 
or on a case-by-case basis.
    A-3: Studies and engineering undertaken to define proposed actions 
or alternatives sufficiently so that environmental effects can be 
assessed.
    A-4: Planning, educational, informational, or advisory activities 
provided to other agencies, public and private entities, visitors, 
individuals, or the public, including training exercises and 
simulations conducted under appropriately controlled conditions and in 
accordance with all applicable laws, regulations, and requirements.
    A-5: Software development, data analysis, or testing that does not 
involve ground disturbing activities.
    A-6: Preparation and dissemination of scientific results, studies, 
surveys, audits, reports, plans, papers, recommendations, and technical 
advice.
    A-7: Technical assistance to other Federal, Tribal, State, and 
local agencies or the public.
    A-8: Routine procurement, use, storage, transportation, and 
disposal of non-hazardous goods and services in support of 
administrative, operational, or maintenance activities in accordance 
with Executive Orders and Federal procurement guidelines. Examples 
include office supplies and furniture; equipment; mobile assets (i.e., 
vehicles, vessels, aircraft); utility services; and deployable 
emergency response supplies and equipment.
    A-9: Purchase of deployable mobile and portable telecommunications 
equipment (e.g., radios, Cell on Wheels, Cell on Light Truck, System on 
Wheels) that will be housed in existing facilities when not deployed.
    A-10: Routine use of hazardous materials (including procurement, 
transportation, distribution, and storage

[[Page 22694]]

of such materials) and reuse, recycling, and disposal of solid, 
medical, radiological, or hazardous waste in a manner that is 
consistent with all applicable laws, regulations, and requirements. 
Examples include use of chemicals for laboratory applications; 
refueling of storage tanks; temporary storage and disposal of solid 
waste; disposal of waste through manufacturer return and recycling 
programs; and hazardous waste minimization activities, including source 
reduction activities and recycling.
    A-11: Reductions, realignments, or relocation of personnel, 
equipment, or mobile assets that do not result in changing the use of 
NTIA facilities or space in such a way that could cause a change to 
existing environmental effects or exceed the infrastructure capacity 
outside of NTIA-managed property. An example of exceeding the 
infrastructure capacity would be an increase in vehicular traffic 
beyond the capacity of the supporting road network to accommodate such 
an increase.
    A-12: Federal assistance, grants, and external funding for 
activities that do not concern environmental matters or where the 
environmental effects are negligible. Examples of relevant activities 
could include, but are not limited to, planning, studies, or programs 
such as the Digital TV transition, which provided rebates to consumers 
to subsidize the purchase of digital antennas, that have no potential 
to impact the environment. If an analysis determines that such 
activities have the potential to impact the environment, the CE cannot 
be applied.
    A-13: Contracts, collaborative research agreements, cooperative 
research and development agreements, interagency agreements, and other 
agreements that do not concern environmental matters or where the 
environmental effects are negligible.
Real Property/Facility Actions
    B-1: Maintenance of facilities, equipment, and grounds. Examples 
include interior utility work, road maintenance, window washing, lawn 
mowing, landscaping, weed management/maintenance, trash collecting, 
facility cleaning, and snow removal.
    B-2: Internal modifications, renovations, or additions (e.g., 
computer facilities, relocating interior walls) to structures or 
buildings that do not result in a change in the functional use of the 
property.
    B-3: Exterior renovation, addition, repair, alteration, and 
demolition projects affecting buildings, roads, grounds, equipment, and 
other facilities, including subsequent disposal of debris, which may be 
contaminated with hazardous materials, lead, or asbestos. Hazardous 
materials must be disposed of at approved sites in accordance with all 
applicable laws, regulations, and requirements. Examples include the 
following:
    (i) Painting, roofing, siding, or alterations to an existing 
building;
    (ii) Adding a small storage shed to an existing building;
    (iii) Retrofitting for energy conservation, including 
weatherization, installation of timers on hot water heaters, 
installation of energy efficient lighting, and installation of low-flow 
plumbing fixtures; or
    (iv) Closing and demolishing a building not eligible for listing 
under the National Register for Historic Places.
    B-4: Abatement of hazardous materials from existing facilities, 
including asbestos and lead-based paint, conducted in compliance with 
all applicable laws, regulations, and requirements established for the 
protection of human health and the environment. Examples include 
containment, removal, and disposal of lead-based paint or asbestos 
tiles and asbestos-containing materials from existing facilities; and 
remediation of hazardous materials in accordance with all applicable 
laws, regulations, and requirements as part of facility and space 
management activities.
    B-5: Proposed new activities and operations conducted in an 
existing structure that would be consistent with previously established 
safety levels and would not result in a change in use of the facility. 
Examples include new types of research, development, testing, and 
evaluation activities and laboratory operations conducted within 
existing enclosed facilities designed to support research and 
development activities.
    B-6: Acquisition or use of existing facilities or portion thereof 
by purchase, lease, or use agreement where use or operation will remain 
unchanged. Examples include acquiring office or laboratory space 
through lease, purchase, or use agreement.
    B-7: Transfer of administrative control over real property, 
including related personal property, between another Federal agency and 
NTIA that does not result in a change in the functional use of the 
property. Examples include transfer of facilities for use by NTIA and 
transfers of computer equipment, office equipment, and personal 
property, including laptops and cell phones.
    B-8: Decisions and actions to close facilities, decommission 
equipment, or temporarily discontinue use of facilities or equipment 
where the facility or equipment, including office equipment, 
telecommunications equipment, and computer equipment, is not used to 
prevent or control environmental impacts.
    B-9: The determination and disposal of real property, such as 
excess office space, or personal property, including laptops and cell 
phones, that is excess to the needs of NTIA when the real property or 
personal property is excessed in conformity with applicable General 
Services Administration procedures or is statutorily authorized to be 
excessed.
Operational Actions
    C-1: Research activities conducted in laboratories and facilities 
where research practices and safeguards prevent environmental impacts. 
Examples include types of research, development, testing, and 
evaluation activities, and laboratory operations conducted within 
existing enclosed facilities designed to support research and 
development activities.
    C-2: Outdoor research activities conducted in compliance with all 
applicable laws, regulations, and requirements. Examples include types 
of research, development, testing, and evaluation activities conducted 
outdoors where no new ground disturbance occurs and no sensitive 
resources (e.g., threatened or endangered species, archaeological 
sites, Tribal resources, wetlands, and waterbodies) are present, such 
as radar testing, radio noise measurements, and public safety 
communications research.
    C-3: Periodic flight activities for training and research and 
development that are routine and comply with all applicable laws, 
Federal Aviation Administration regulations, and other requirements.
    C-4: New construction or improvement of land, operations, or 
support facilities, switching stations, maintenance facilities, and 
other non-tower structures supporting wired or wireless communications 
systems in a developed area and/or on previously disturbed ground with 
no more than 1 acre (0.4 hectare) of ground disturbance where the 
proposed facility use is generally compatible with the surrounding land 
use and applicable zoning standards and will not require additional 
support infrastructure.
    C-5: Installing, operating, maintaining, retrofitting, upgrading, 
repairing, removing, and/or replacement of existing microwave or radio 
communication towers, instruments, structures, or buildings that do not 
require ground disturbance outside of

[[Page 22695]]

the original footprint, including installing or collocating equipment 
such as antennas, microwave dishes, or power units. For communications 
towers at or below 199 feet, renovations and equipment additions must 
not cause the total height of the tower to exceed 199 feet. Existing 
structures must not be eligible for listing in the National Register of 
Historic Places.\18\
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    \18\ In response to comments expressing support for existing 
Departmental CEs including those of FirstNet, NTIA notes that 
establishment of these new CEs does not preclude the use of 
Departmental or other CEs that may be otherwise available to NTIA 
where they apply to a proposed action. Two existing Department of 
Commerce CEs (the Department's A-4 and FirstNet's B-7) may be 
applicable to related actions. Commerce's A-4 covers Siting, 
construction, operation, and maintenance of microwave/radio 
communication towers less than 200 feet in height without guy wires 
on previously disturbed ground. FirstNet's B-7 covers Changes or 
additions, including retrofit and upgrade, to telecommunications 
sites, towers under 200 feet, 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).
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    C-6: New construction or improvement of temporary buildings or 
experimental equipment (e.g., trailers, prefabricated buildings, and 
test slabs) on previously disturbed ground, with no more than 1 acre 
(0.4 hectare) of ground disturbance, where the proposed facility use is 
generally compatible with the surrounding land use and applicable 
zoning standards and will not require additional support 
infrastructure.
    C-7: New construction of self-supporting (e.g., monopole or 
lattice) wireless communication towers at or below 199 feet with no guy 
wires that require less than 1 acre (0.4 hectare) of ground disturbance 
and where another Federal agency would not require an EA or EIS for its 
acquisition, installation, operations, or maintenance.
    C-8: Acquisition, installation, reconstruction, repair by 
replacement, and operation of aerial or buried utility (e.g., water, 
sewer, electrical), communication (e.g., fiber optic cable, data 
processing cable and similar electronic equipment), and security 
systems that use existing rights-of-way, easements, grants of license, 
distribution systems, facilities, or similar arrangements.\19\
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    \19\ In response to comments expressing support for existing 
Departmental CEs including those of FirstNet, NTIA notes that 
establishment of these new CEs does not preclude the use of 
Departmental or other CEs that may be otherwise available to NTIA 
where they apply to proposed actions involving buried and aerial 
lines, cables, and related facilities.
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Extraordinary Circumstances

    Extraordinary Circumstances that may preclude the use of a CE 
include:
    1. Proposed action occurs within an environmentally sensitive or 
unique \20\ geographic area of notable recreational, ecological, 
scientific, cultural, scenic, or aesthetic importance.
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    \20\ ``Environmentally sensitive or unique'' resources and areas 
may include: federal lands; areas having special designation or 
recognition such as prime or unique or agricultural lands; 
designated wilderness or wilderness study areas; wild and scenic 
rivers; coastal zones; National Wildlife Refuges; National Parks; 
areas of critical environmental concern; or other areas of high 
environmental sensitivity.
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    2. Proposed action may adversely impact species listed or proposed 
to be listed as endangered or threatened or have adverse effects on 
designated critical habitat for these species.
    3. Proposed action may adversely impact protected migratory birds 
or their habitats.
    4. Proposed action may adversely affect historic, archeological, or 
cultural sites, including Native American Traditional Cultural 
Properties, and properties listed or eligible for listing on the 
National Register of Historic Places.
    5. Proposed action restricts access to and ceremonial use of Indian 
sacred sites by Indian practitioners or adversely affects the physical 
integrity of such religious sacred sites.
    6. Proposed action occurs in floodplains or involves significant 
changes to or effects on waterbodies, wetlands, floodplains, water 
quality, sole source aquifers, public water supply systems, or State, 
local, or Tribal water quality standards established under the Clean 
Water Act or the Safe Drinking Water Act.
    7. Proposed action may have a disproportionate and adverse human 
health or environmental effect \21\ on low-income populations, minority 
populations, or other communities with environmental justice concerns.
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    \21\ E.O. 14096 section 3(i).
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    8. Proposed action involving construction impacts on or near an 
active, inactive, or abandoned contaminated or hazardous waste site, or 
involving non-permitted generation, transportation, treatment, storage, 
or disposal of substances hazardous to human health or the environment, 
unless NTIA determines the action is consistent with an approved 
remediation plan for the site.
    9. Proposed action would involve human exposure to ionizing or non-
ionizing radiation or use of any radiation in excess of the Federal 
Communications Commission's established Maximum Permissible Exposure 
limits for human exposure to Radiofrequency Electromagnetic Energy 
fields.
    10. Proposed action is controversial because of the introduction or 
employment of unproven technology, highly scientifically uncertain or 
unique environmental effects, substantial disagreement over the 
possible size, nature, or effect on the environment, or likelihood of 
degrading already existing poor environmental conditions.
    11. Proposed action may violate a federal, Tribal, state, or local 
law, regulation, policy, or requirement imposed for the protection of 
the environment.
    12. Proposed size or scope of action is greater than is normal for 
an action of its type.
    13. Proposed action may cause other significant effects on human 
health or the environment that have not been otherwise addressed.

    Dated: March 26, 2024.
Sean Conway,
Acting Chief Counsel, National Telecommunications and Information 
Administration.
[FR Doc. 2024-06751 Filed 4-1-24; 8:45 am]
 BILLING CODE 3510-60-P