[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Notices]
[Pages 64884-64886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 [email protected].

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:
     Prize challenges under 15 U.S.C. 2719;
     NIST Technical Series Publications;
     Financial assistance that funds preparation of reports or 
analysis; and
     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:
     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:
     Financial assistance for extramural construction, 
including at semiconductor facilities; and
     Upgrades to steam plants and cooling water systems at NIST 
facilities.

4. B1.23: Demolition and Disposal of Buildings

    Potential application to NIST activities:
     Financial assistance for extramural construction, 
including at semiconductor facilities; and
     Demolition and disposal of buildings at NIST facilities.

5. B1.24: Property Transfers

    Potential application to NIST activities:
     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;
     Lease of temporary space;
     Changes to use of property at NIST facilities; and
     Disposition of personal property.

6. B1.31: Installation or Relocation of Machinery and Equipment

    Potential application to NIST activities:
     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
     Installation or relocation of machinery and equipment at 
NIST facilities.

7. B2.5: Facility Safety and Environmental Improvements

    Potential application to NIST activities:
     Financial assistance for facility safety and environmental 
improvements, including at semiconductor facilities;
     Safety and environmental improvements at NIST facilities.

8. B3.1: Site Characterization and Environmental Monitoring

    Potential application to NIST activities:
     Site characterization and environmental monitoring at NIST 
facilities or performed by NIST;
     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:
     Small-scale research and development, laboratory 
operations, and pilot projects at NIST facilities; and
     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:
     Small-scale indoor research and development projects using 
nanoscale materials at NIST facilities; and
     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:
     Actions to conserve energy or water at NIST facilities; 
and
     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]
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