Notice2023-20303
Adoption of Department of Energy Categorical Exclusions Under the National Environmental Policy Act
Primary source
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Published
September 20, 2023
Effective
September 20, 2023
Issuing agencies
Commerce DepartmentNational Institute of Standards and Technology
Abstract
The National Institute of Standards and Technology (NIST) has identified categorical exclusions (CEs) established by the Department of Energy (DOE) that cover categories of actions that NIST proposes to take. This notice identifies the DOE CEs and NIST's categories of proposed actions for which it intends to use DOE's CEs and describes the consultation between the agencies.
Full Text
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<title>Federal Register, Volume 88 Issue 181 (Wednesday, September 20, 2023)</title>
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[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Notices]
[Pages 64884-64886]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20303]
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DEPARTMENT OF COMMERCE
National Institute of Standards and Technology
Adoption of Department of Energy Categorical Exclusions Under the
National Environmental Policy Act
AGENCY: National Institute of Standards and Technology, Department of
Commerce.
ACTION: Notice.
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SUMMARY: The National Institute of Standards and Technology (NIST) has
identified categorical exclusions (CEs) established by the Department
of Energy (DOE) that cover categories of actions that NIST proposes to
take. This notice identifies the DOE CEs and NIST's categories of
proposed actions for which it intends to use DOE's CEs and describes
the consultation between the agencies.
DATES: The CEs identified below are available for NIST to use for its
proposed actions effective September 20, 2023.
FOR FURTHER INFORMATION CONTACT: Jennifer Nist, NIST, telephone number
202-302-9541, email <a href="/cdn-cgi/l/email-protection#254f404b4b4c4340570b4b4c5651654b4c56510b424a53"><span class="__cf_email__" data-cfemail="b8d2ddd6d6d1deddca96d6d1cbccf8d6d1cbcc96dfd7ce">[email protected]</span></a>.
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 CE for a category of actions
is appropriate; identify to the public the CE that the borrowing agency
plans to use for its proposed actions; and document adoption of the CE.
42 U.S.C. 4336c. NIST has prepared this notice to meet these statutory
requirements.
NIST's Programs
Founded in 1901, NIST's mission is to promote U.S. innovation and
industrial competitiveness by advancing measurement science, standards,
and technology in ways that enhance economic security and improve our
quality of life. Historically, NIST has carried out this mission
through, for example, operation of the NIST Laboratories, conducting
world-class research, often in close collaboration with industry, that
advances the nation's technology infrastructure and helps U.S.
companies continually improve products and services.
In August 2022, the Congress passed the CHIPS Act of 2022, which
amended Title XCIX of the William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021, 15 U.S.C. 4651 et seq., also
known as the Creating Helpful Incentives to Produce Semiconductors
(CHIPS) for America Act. The law provides the Department of Commerce
with $50 billion for a suite of programs to strengthen and revitalize
the U.S. position in semiconductor research, development, and
manufacturing. CHIPS for America encompasses two offices within NIST
responsible for implementing the law: the CHIPS Research and
Development Office is investing $11 billion into developing a robust
domestic R&D ecosystem, while the CHIPS Program Office is dedicating
$39 billion to provide incentives for investment in facilities and
equipment in the United States. NIST is uniquely positioned to
successfully administer the CHIPS for America program because of the
bureau's strong relationships with U.S. industries, its deep
understanding of the semiconductor ecosystem, and its reputation as
fair and trusted.
II. DOE Categorical Exclusions
NIST has identified the following CEs listed in appendices A and B
to subpart D of DOE's NEPA regulations, 10 CFR part 1021. Each of the
DOE CEs includes conditions on the scope or application of the CE
within the text of the numbered paragraphs listed below and within the
integral elements in DOE's regulations (10 CFR part 1021, subpart D,
appendix B (1)-(5)). Under each CE, NIST has described categories of
proposed actions for which NIST may use the CE. The list of categories
comprises the categories of actions for which NIST contemplates using
the CE at this time; NIST may expand use of the CEs identified below to
other activities where appropriate.
[[Page 64885]]
1. A9: Information Gathering, Analysis, and Dissemination
Potential application to NIST activities:
<bullet> Prize challenges under 15 U.S.C. 2719;
<bullet> NIST Technical Series Publications;
<bullet> Financial assistance that funds preparation of reports or
analysis; and
<bullet> Other activities conducted under 15 U.S.C. 272, including
hosting and support for scientific and technical workshops;
dissemination of data; and development of computer standards and
privacy measures.
2. A11: Technical Advice and Assistance to Organizations
Potential application to NIST activities:
<bullet> Activities conducted under 15 U.S.C. 272(b) & (c),
including technical advice and planning assistance to international,
national, state, and local organizations.
3. B1.5: Existing Steam Plants and Cooling Water Systems
Potential application to NIST activities:
<bullet> Financial assistance for extramural construction,
including at semiconductor facilities; and
<bullet> Upgrades to steam plants and cooling water systems at NIST
facilities.
4. B1.23: Demolition and Disposal of Buildings
Potential application to NIST activities:
<bullet> Financial assistance for extramural construction,
including at semiconductor facilities; and
<bullet> Demolition and disposal of buildings at NIST facilities.
5. B1.24: Property Transfers
Potential application to NIST activities:
<bullet> Financial assistance for internal expansion, including at
semiconductor facilities, where the change in use of space does not
materially alter the footprint of a building or facility;
<bullet> Lease of temporary space;
<bullet> Changes to use of property at NIST facilities; and
<bullet> Disposition of personal property.
6. B1.31: Installation or Relocation of Machinery and Equipment
Potential application to NIST activities:
<bullet> Financial assistance for facility modernization and
installation of equipment, including semiconductor facilities, that
would not require increased emission limits or create new types of
pollution discharges or releases; and
<bullet> Installation or relocation of machinery and equipment at
NIST facilities.
7. B2.5: Facility Safety and Environmental Improvements
Potential application to NIST activities:
<bullet> Financial assistance for facility safety and environmental
improvements, including at semiconductor facilities;
<bullet> Safety and environmental improvements at NIST facilities.
8. B3.1: Site Characterization and Environmental Monitoring
Potential application to NIST activities:
<bullet> Site characterization and environmental monitoring at NIST
facilities or performed by NIST;
<bullet> Financial assistance for site characterization and
environmental monitoring.
9. B3.6: Small-Scale Research and Development, Laboratory Operations,
and Pilot Projects
Potential application to NIST activities:
<bullet> Small-scale research and development, laboratory
operations, and pilot projects at NIST facilities; and
<bullet> Financial assistance for small-scale research and
development, laboratory operations, and pilot projects, including
semiconductor facilities.
10. B3.15: Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials
Potential application to NIST activities:
<bullet> Small-scale indoor research and development projects using
nanoscale materials at NIST facilities; and
<bullet> Financial assistance for small-scale indoor research and
development projects using nanoscale materials, including at
semiconductor facilities.
11. B5.1: Actions To Conserve Energy or Water
Potential application to NIST activities:
<bullet> Actions to conserve energy or water at NIST facilities;
and
<bullet> Financial assistance for actions to conserve energy or
water, including at semiconductor facilities.
NIST will develop procedures regarding documentation of its use of
these CEs.
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). NIST does not currently have its
own NEPA implementing procedures to guide its application of
extraordinary circumstances. Until NIST establishes NEPA implementing
procedures, for purposes of considering extraordinary circumstances in
connection with the DOE CEs discussed in this notice, NIST will
consider whether the proposed action has the potential to result in
significant effects, including by considering the factors listed in
DOE's definition of extraordinary circumstances, which include
scientific controversy about the environmental effects of the proposal;
uncertain effects or effects involving unique or unknown risks; and
unresolved conflicts concerning alternative uses of available
resources. 10 CFR 1021.410(b)(2). NIST will then assess whether an
extraordinary circumstance is present, 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 NIST
cannot apply a CE to a particular proposed action due to extraordinary
circumstances, NIST 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.
IV. Consultation With DOE and Determination of Appropriateness
NIST worked with DOE to identify DOE CEs that could apply to NIST
proposed actions and began consultation in June 2023. During this
consultation, the agencies discussed whether the categories of NIST
proposed actions would be appropriately covered by the DOE CEs; the
extraordinary circumstances that NIST should consider before applying
these CEs to NIST's proposed actions; the requirement to evaluate,
before use of any DOE appendix B CE, the conditions listed as integral
elements in DOE's regulations (10 CFR 1021, subpart D, appendix B (1)-
(5)); and what documentation NIST should complete when applying these
CEs. The agencies also considered DOE's past use of the CEs, including
how often DOE has modified a proposed action or prepared an EA or EIS
for a proposed action otherwise covered by the CEs.
At the conclusion of that process, the agencies determined that
NIST's proposed use of the CEs as described in this notice would be
appropriate because the categories of actions for
[[Page 64886]]
which NIST plans to use the CEs are covered by the DOE CEs.
V. Conclusion
This notice documents adoption of the DOE CEs listed above in
accordance with 42 U.S.C. 4336c(4), and they are available for use by
NIST, effective immediately.
Alicia Chambers,
NIST Executive Secretariat.
[FR Doc. 2023-20303 Filed 9-19-23; 8:45 am]
BILLING CODE 3510-13-P
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