[Federal Register Volume 88, Number 216 (Thursday, November 9, 2023)]
[Notices]
[Pages 77313-77315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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), 
[email protected], (202)565-3777; Tiffin Caverly (VP Engineering & 
Environment), [email protected].

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 https://www.exim.gov/policies/exim-bank-and-environment/make-more-america-initiative-approved-transactions.

[[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]
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