Adoption of FirstNet Categorical Exclusions under the National Environmental Policy Act

Billing Code: 3510-60-P

DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

RIN 0660-XC061

Adoption of FirstNet Categorical Exclusions under the National Environmental Policy Act 

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

ACTION:  Notice.

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).

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. If the analysis concludes that the action is likely to have significant effects, however, 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 covers 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 categorically exclude 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 proposed actions. 42 U.S.C. 4336c. To use another agency’s CEs under section 109, the borrowing agency must identify the relevant CEs listed in another agency’s (“establishing agency”) NEPA procedures that covers the borrowing 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 borrowing 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 identify to the public the FirstNet 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 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.

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 implement further 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 D.C., Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.  

II. FirstNet Categorical Exclusions
NTIA has identified the following CEs listed in Appendix B of FirstNet’s Procedures for Implementing the National Environmental Policy Act. Each of the FirstNet 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 expand use of the CEs identified below to other activities where appropriate.

1. [B.3] Construction of buried and aerial telecommunications lines, cables, and related facilities.
   Potential application to NTIA activities: 
   • Financial assistance for construction or modification of aerial or buried fiber optic telecommunications equipment, including, but not limited to, fiber optic cable, transmission poles, including pole replacement, equipment sheds, and utility huts.
   • Construction or modification of aerial or buried fiber optic telecommunications equipment at NTIA facilities, including, but not limited to, fiber optic cable, transmission poles, including pole replacement, equipment sheds, and utility huts.
2. [B.4.] 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.
   • Financial assistance for modification of existing transmission lines, including addition of aerial fiber optic cables to electric power lines and burial of fiber optic cables in existing powerlines or pipelines.
   • Modification of existing transmission lines at NTIA facilities, including addition of aerial fiber optic cables to electric power lines and burial of fiber optic cables in existing powerlines or pipelines.
3. [B.7.] Changes or additions to 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).
   Potential application to NTIA activities: 
   • Financial assistance for modifications to structures and sites supporting telecommunications service necessary to connect unserved or underserved locations.
   • Modifications to NTIA facilities supporting telecommunications service necessary to connect NTIA facilities.
4. [B.12.] 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.
   Potential application to NTIA activities: 
   • Financial assistance for construction or modification of aerial or buried fiber optic telecommunications equipment in or adjacent to transportation rights of way, including reconstruction of power or telecommunications lines to provide broadband service.
5. [B.13.] Phase or voltage conversions, reconductoring, or upgrading of existing electric distribution lines or telecommunications facilities.
   Potential application to NTIA activities: 
   • Financial assistance for construction or modification of aerial or buried fiber optic cable to rural and underserved locations, including retrofitting, upgrading, or modernization of existing infrastructure when necessary to provide broadband service.
6. [B.15.] Deployment of Cells on Wheels, Systems on Wheels, or another deployable architecture intended for temporary placement (no more than two years) on an impervious surface.
   Potential application to NTIA activities: 
   • Financial assistance for deployment and maintenance of mobile communication systems, including ground-based and aerial deployable technologies, to provide temporary broadband service in areas where such service is not available, including areas where infrastructure has been damaged by natural disaster.
   • Deployment and maintenance of mobile communication systems at NTIA facilities, for testing purposes at temporary locations, or as needed in areas where infrastructure has been damaged by natural disaster, including ground-based and aerial deployable technologies, to provide temporary broadband service.

III. Consideration of Extraordinary Circumstances
If an agency determines that a CE covers a proposed action, the agency must evaluate the proposed action for extraordinary circumstances in which a normally excluded action may have a significant effect. 40 CFR 1501.4(b). NTIA is concurrently publishing interim NEPA implementing procedures, established 30 categorical exclusions and is publishing a list of the extraordinary circumstances it considers in determining whether to apply a categorical exclusion. NTIA will consider these extraordinary circumstances, as well as FirstNet’s extraordinary circumstances, in assessing whether the proposed action has the potential to result in significant effects, and if so, whether there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects, consistent with 40 CFR 1501.4(b). If NTIA cannot apply a CE to a particular proposed action due to extraordinary circumstances, NTIA will prepare an EA or EIS, consistent with 40 CFR 1501.4(b)(2), or determine if the action is covered under an existing NEPA document. Although NTIA intends to update its interim NEPA implementing procedures after CEQ completes its current rulemaking process, NTIA will maintain its categorical exclusions and extraordinary circumstances as final.

IV. Consultation with FirstNet and Determination of Appropriateness
FirstNet is an independent authority within NTIA, established by the Middle-Class Tax Relief and Job Creation Act of 2012 to deploy and operate a nationwide public safety broadband network.²   Similar to NTIA’s grant programs, FirstNet’s mandate includes planning and constructing telecommunication and broadband infrastructure across the United States and its territories. The specific activities that NTIA now anticipates funding are comparable to the FirstNet Authority project implementation activities in both scope and geographic span.  

Over the past year, NTIA consulted with FirstNet on the applicability of FirstNet’s NEPA implementing procedures to NTIA’s proposed actions and took public comment on a proposal to follow FirstNet’s procedures on an interim basis.  In recent months, NTIA and FirstNet have consulted on the appropriateness of NTIA adopting certain FirstNet CEs in response to public comments NTIA received noting the applicability of certain FirstNet CEs to NTIA’s proposed actions.  That recent consultation has included a review of FirstNet’s experience developing and applying its CEs.  The agencies determined that NTIA’s proposed actions are very similar to the projects that FirstNet funds and that the impacts of NTIA’s proposed actions will be very similar to the impacts of FirstNet projects, which are not significant absent extraordinary circumstances. Therefore, NTIA has determined that its proposed use of the CEs as described in this notice would be appropriate because the categories of actions for which NTIA plans to use the FirstNet CEs are similar to FirstNet’s use of the CEs.

V. Conclusion
This notice documents adoption of the FirstNet CEs listed above in accordance with 42 U.S.C. 4336c(4), and they are available for use by NTIA, effective immediately.

Dated:  April 02, 2024.
Stephanie Weiner,
Chief Counsel, National Telecommunications and Information Administration.

¹Infrastructure Investment and Jobs Act, Pub. L. 117-58 (2021).

²47 U.S.C. 1401