Notice2023-24777
Adoption of Department of Energy Categorical Exclusion Under the National Environmental Policy Act
Primary source
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Published
November 9, 2023
Effective
November 9, 2023
Issuing agencies
Export-Import Bank
Abstract
The Export-Import Bank of the United States (EXIM) has identified a categorical exclusion (CE) established by the Department of Energy (DOE) that covers categories of actions that EXIM proposes to take. This notice identifies the DOE CE and EXIM's categories of proposed actions for which it intends to use DOE's CE and describes the consultation between the agencies.
Full Text
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<title>Federal Register, Volume 88 Issue 216 (Thursday, November 9, 2023)</title>
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[Federal Register Volume 88, Number 216 (Thursday, November 9, 2023)]
[Notices]
[Pages 77313-77315]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24777]
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EXPORT-IMPORT BANK OF THE UNITED STATES
Adoption of Department of Energy Categorical Exclusion Under the
National Environmental Policy Act
AGENCY: Export-Import Bank of the United States
ACTION: Notice.
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SUMMARY: The Export-Import Bank of the United States (EXIM) has
identified a categorical exclusion (CE) established by the Department
of Energy (DOE) that covers categories of actions that EXIM proposes to
take. This notice identifies the DOE CE and EXIM's categories of
proposed actions for which it intends to use DOE's CE and describes the
consultation between the agencies.
DATES: The CE identified below is available for EXIM to use for its
proposed actions effective November 9, 2023.
FOR FURTHER INFORMATION CONTACT: Scott Condren (VP Policy Analysis),
<a href="/cdn-cgi/l/email-protection#c794a4a8b3b3e984a8a9a3b5a2a987a2bfaeaae9a0a8b1"><span class="__cf_email__" data-cfemail="3f6c5c504b4b117c50515b4d5a517f5a47565211585049">[email protected]</span></a>, (202)565-3777; Tiffin Caverly (VP Engineering &
Environment), <a href="/cdn-cgi/l/email-protection#f1a5989797989fdfb2908794839d88b19489989cdf969e87"><span class="__cf_email__" data-cfemail="ebbf828d8d8285c5a88a9d8e998792ab8e938286c58c849d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
NEPA and CEs
The National Environmental Policy Act, 42 U.S.C. 4321-4347, (NEPA)
requires Federal agencies to interpret and administer Federal policies,
regulations, and laws in accordance with NEPA's policies and to
consider environmental values in their decision making.
Federal agencies are required to provide a detailed statement on
proposals for major Federal actions significantly affecting the quality
of the human environment.\1\ NEPA also created the Council of
Environmental Quality (CEQ) as the body responsible for implementing
NEPA.
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\1\ 40 CFR 1500.1.
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Categorical exclusions (CEs) can be used when there is a
determination the proposed type of action would not have a significant
effect on the human environment; this option eliminates the need for an
environmental assessment (EA) or more detailed environmental impact
statement (EIS).\2\
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\2\ 40 CFR 1501.4.
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CEQ considers CEs ``an important mechanism to promote efficiency in
the NEPA process'' and recognizes an agency's ability to ``identify and
substantiate categories of actions that normally do not have a
significant effect on the human environment.'' \3\
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\3\ 88 FR 49924.
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Section 109 of NEPA, enacted as part of the Fiscal Responsibility
Act of 2023, allows a Federal agency to ``adopt'' or use another
agency's CEs for a category of proposed agency actions.\4\ To use
another agency's CEs under section 109, an agency must identify the
relevant CEs listed in another agency's (``establishing agency'') NEPA
procedures that cover its category of proposed actions or related
actions; consult with the establishing agency to ensure that the
proposed adoption of the CE to a category of actions is appropriate;
identify to the public the CE that the agency plans to use for its
proposed actions; and document adoption of the CE. EXIM has prepared
this notice to meet these statutory requirements.
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\4\ 42 U.S.C. 4336c.
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Program Background
As the official export credit agency of the United States, ``the
mission of the Export-Import Bank of the United States is to support
the creation of American jobs by facilitating the export of U.S. goods
and services.'' The Export-Import Bank of the United States (EXIM)
steps in when the private sector does not provide financing for
American businesses. The Bank's actions have historically helped
support these firms in competing with foreign businesses overseas. The
Make More in America (MMIA) initiative applies EXIM's authorities for
medium and long-term (MLT) loans, loan guarantees, and insurance to
export-oriented domestic projects. In doing so, MMIA allows EXIM to
support American business during the whole export lifecycle. The
purpose of such loans remains unchanged: to support U.S. employment. As
EXIM usually lends to projects outside the United States, NEPA has not
often been applicable because environmental effects are located
entirely outside the jurisdiction of the United States. In the new MMIA
initiative which focuses on domestic lending, borrowing and adopting
CEs from another agency will speed up the processing time of deals and
conserve staff resources. Faster processing times in this initiative
will greatly facilitate
[[Page 77314]]
EXIM's support of American businesses and workers.
II. DOE Categorical Exclusion
EXIM proposes to adopt Department of Energy CE B1.31, Installation
or relocation of machinery and equipment (10 CFR part 1021, subpart D,
appendix B):
Installation or relocation and operation of machinery and
equipment (including, but not limited to, laboratory equipment,
electronic hardware, manufacturing machinery, maintenance equipment,
and health and safety equipment), provided that uses of the
installed or relocated items are consistent with the general
missions of the receiving structure. Covered actions include
modifications to an existing building, within or contiguous to a
previously disturbed or developed area \5\ that are necessary for
equipment installation and relocation. Such modifications would not
appreciably increase the footprint or height of the existing
building or have the potential to cause significant changes to the
type and magnitude of environmental impacts.
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\5\ DOE NEPA regulations say `` `Previously disturbed or
developed' refers to land that has been changed such that its
functioning ecological processes have been and remain altered by
human activity. The phrase encompasses areas that have been
transformed from natural cover to non-native species or a managed
state, including, but not limited to, utility and electric power
transmission corridors and rights-of-way, and other areas where
active utilities and currently used roads are readily available.''
10 CFR 1021.410(g)(1).
DOE CE B1.31 also includes additional conditions referred to as
integral elements. (10 CFR part 1021 subpart D, app. B). In order to
apply the CE, the proposal must be one that would not:
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, or similar
requirements or Executive Orders;
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions or facilities;
(3) Disturb hazardous substances, pollutants, contaminants, or
CERCLA-excluded petroleum and natural gas products that preexist in the
environment such that there would be uncontrolled or unpermitted
releases;
(4) Have the potential to cause significant impacts on
environmentally sensitive resources. An environmentally sensitive
resource is typically a resource that has been identified as needing
protection through Executive Order, statute, or regulation by Federal,
state, or local government, or a federally recognized Indian tribe. An
action may be categorically excluded if, although sensitive resources
are present, the action would not have the potential to cause
significant impacts on those resources (such as construction of a
building with its foundation well above a sole-source aquifer or upland
surface soil removal on a site that has wetlands). Environmentally
sensitive resources include, but are not limited to:
(i) Property (such as sites, buildings, structures, and objects) of
historic, archeological, or architectural significance designated by a
Federal, state, or local government, federally recognized Indian tribe,
or Native Hawaiian organization, or property determined to be eligible
for listing on the National Register of Historic Places;
(ii) Federally listed threatened or endangered species or their
habitat (including critical habitat) or Federally-proposed or candidate
species or their habitat (Endangered Species Act); state-listed or
state-proposed endangered or threatened species or their habitat;
Federally-protected marine mammals and Essential Fish Habitat (Marine
Mammal Protection Act; Magnuson-Stevens Fishery Conservation and
Management Act); and otherwise Federally-protected species (such as the
Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);
(iii) Floodplains and wetlands;
(iv) Areas having a special designation such as Federally- and
state-designated wilderness areas, national parks, national monuments,
national natural landmarks, wild and scenic rivers, state and Federal
wildlife refuges, scenic areas (such as National Scenic and Historic
Trails or National Scenic Areas), and marine sanctuaries;
(v) Prime or unique farmland, or other farmland of statewide or
local importance, as defined at 7 CFR 658.2(a), ``Farmland Protection
Policy Act: Definitions,'' or its successor;
(vi) Special sources of water (such as sole-source aquifers,
wellhead protection areas, and other water sources that are vital in a
region); and
(vii) Tundra, coral reefs, or rain forests; or
(5) Involve genetically engineered organisms, synthetic biology,
governmentally designated noxious weeds, or invasive species, unless
the proposed activity would be contained or confined in a manner
designed and operated to prevent unauthorized release into the
environment and conducted in accordance with applicable requirements,
such as those of the Department of Agriculture, the Environmental
Protection Agency, and the National Institutes of Health.
III. Proposed EXIM Category of Actions
EXIM intends to apply this categorical exclusion to loans, loan
guarantees, and insurance transactions. The scope of projects would be
akin to projects from the Department of Energy's Loans Program Office
to which DOE has applied the categorical exclusion. These include
purchase and installation of equipment in buildings, modifications to
buildings in or contiguous to previously disturbed areas, such as a
renovation of existing office, manufacturing, or lab space. In
principle such transactions would be similar to EXIM's export finance
transactions deemed a category C under its Environmental and Social Due
Diligence Procedures and Guidelines.\6\
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\6\ EXIM's Environmental and Social Due Diligence Procedures and
Guidelines state that ``applications greater than $10 Million will
be classified as Category C if they are not related to a physical
project or if they relate to projects which do not require further
environmental review because they are likely to have minimal or no
adverse environmental or social risks or impacts. This category
includes transactions related to new, expansion or existing projects
of the type that have little or no potential to cause environmental
effects and do not impact sensitive locations.'' Procedures and
Guidelines, EXIM.GOV.
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IV. Consideration of Extraordinary Circumstances and DOE's ``Integral
Elements''
In assessing whether a categorical exclusion applies, EXIM would
review whether there were extraordinary circumstances that would
indicate a categorical exclusion is not appropriate due to the
potential for a significant environmental effect. When applying this
CE, EXIM will consider whether the proposed action has the potential to
result in significant effects as described in DOE's definition of
extraordinary circumstances. DOE defines extraordinary circumstances as
unique situations presented by specific proposals, including, but not
limited to, 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). In addition, EXIM would
review the proposed actions to ensure they do not breach the integral
elements of classes of action in DOE's regulations as discussed above.
EXIM's engineering and environment division will have
responsibility for determining if a categorical exclusion applies.
These determinations will be posted at <a href="https://www.exim.gov/policies/exim-bank-and-environment/make-more-america-initiative-approved-transactions">https://www.exim.gov/policies/exim-bank-and-environment/make-more-america-initiative-approved-transactions</a>.
[[Page 77315]]
Consultation and Determination of Appropriateness
Consultations
EXIM identified the DOE CE that could apply to EXIM's proposed
actions and consulted with DOE in September 2023. During this
consultation, the agencies discussed whether the categories of EXIM
proposed actions would be appropriately covered by the DOE CE; the
extraordinary circumstances that EXIM should consider before applying
the CE to EXIM's proposed actions; and the requirement to evaluate the
conditions listed as integral elements in DOE's regulations (10 CFR
1021, subpart D, appendix B (1)-(5)). The agencies also discussed DOE's
past use of the CE.
At the conclusion of that process, the agencies determined that
EXIM's proposed use of the CE as described in this notice would be
appropriate because the categories of actions for which EXIM plans to
use the CE are consistent with the DOE CE.
Notice to the Public and Documentation of the Adoption
This notice serves to identify to the public and document EXIM's
adoption of DOE's CE. The notice identifies the types of actions to
which EXIM will apply the CE, as well as the considerations that EXIM
will use in determining whether an action is within the scope of the
CE.
Scott Condren,
Vice President, Policy Analysis.
[FR Doc. 2023-24777 Filed 11-8-23; 8:45 am]
BILLING CODE 6690-01-P
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