[Federal Register Volume 88, Number 220 (Thursday, November 16, 2023)]
[Proposed Rules]
[Pages 78681-78691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25174]


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DEPARTMENT OF ENERGY

10 CFR Part 1021

[DOE-HQ-2023-0063]
RIN 1990-AA48


National Environmental Policy Act Implementing Procedures

AGENCY: Office of the General Counsel, Department of Energy.

ACTION: Notice of proposed rulemaking and request for comment.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) proposes 
to amend its implementing procedures (regulations) governing compliance 
with the National Environmental Policy Act (NEPA). The proposed changes 
would add a categorical exclusion for certain energy storage systems 
and revise categorical exclusions for upgrading and rebuilding 
transmission lines and for solar photovoltaic systems, as well as make 
conforming changes to related sections of DOE's NEPA regulations. The 
proposed changes are based on the experience of DOE and other Federal 
agencies, current technologies, regulatory requirements, and accepted 
industry practice. DOE invites public comments on the proposed changes.

DATES: DOE must receive comments by January 2, 2024 to ensure 
consideration.

ADDRESSES: Documents relevant to this proposed rulemaking are posted at 
www.regulations.gov (Docket: DOE-HQ-2023-0063). Documents posted to 
this docket include: this notice of proposed rulemaking and DOE's 
Technical Support Document, which provides additional information 
regarding certain proposed changes and a redline/strikeout version of 
affected sections of the DOE NEPA regulations indicating the changes in 
this proposed rule.
    Submit comments, labeled ``DOE NEPA Implementing Procedures, RIN 
1990-AA48,'' by one of the following methods:
    1. www.regulations.gov: Enter ``Docket ID DOE-HQ-2023-0063'' in the 
search box. Click on ``Comment'' to submit comments, which you may 
enter directly on the web page or by uploading in a file.
    2. Postal Mail: Mail comments to NEPA Rulemaking Comments, Office 
of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000 
Independence Avenue SW., Washington, DC 20585. Because security 
screening may delay mail sent through the U.S. Postal Service, DOE 
encourages electronic submittal of

[[Page 78682]]

comments through www.regulations.gov.
    3. Email: send comments to [email protected].
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation--Submission of Comments'' (section IV) of the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions concerning how to 
comment on this proposed rule, contact Ms. Carrie Abravanel, Office of 
NEPA Policy and Compliance, at [email protected] or 202-
586-4600.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background
    A. Establishment and Use of Categorical Exclusions
    B. Development of the Proposed Changes
II. Description of Proposed Changes
    A. Overview
    B. Proposed Changes to Categorical Exclusion B4.13 for Upgrading 
and Rebuilding Existing Powerlines
    C. Proposed New Categorical Exclusion B4.14 for Certain Energy 
Storage Systems
    D. Proposed Changes to Categorical Exclusion B5.16 for Solar 
Photovoltaic Systems
III. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866, 13563, and 14094
    B. Review Under Executive Orders 12898 and 14096
    C. Review Under National Environmental Policy Act
    D. Review Under Regulatory Flexibility Act
    E. Review Under Paperwork Reduction Act
    F. Review Under Unfunded Mandates Reform Act of 1995
    G. Review Under Treasury and General Government Appropriations 
Act, 1999
    H. Review Under Executive Order 13132
    I. Review Under Executive Order 12988
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Executive Order 12630
IV. Public Participation--Submission of Comments
V. Approval of the Office of the Secretary

I. Introduction and Background

    The National Environmental Policy Act, as amended, (42 U.S.C. 4321 
et seq.) requires Federal agencies to provide a detailed statement 
regarding the environmental impacts of proposals for major Federal 
actions significantly affecting the quality of the human environment. 
The Council on Environmental Quality (CEQ) regulations implementing 
NEPA (40 CFR parts 1500-1508) require agencies to develop their own 
NEPA implementing procedures to apply the CEQ regulations to their 
specific programs and decision-making processes (40 CFR 1507.3). DOE's 
NEPA procedures are contained in 10 CFR part 1021.
    NEPA establishes three types of review for proposed actions--
environmental impact statement, environmental assessment, and 
categorical exclusion--each involving different levels of information 
and analysis. An environmental impact statement is a detailed analysis 
of reasonably foreseeable environmental effects prepared for a major 
Federal action significantly affecting the quality of the human 
environment (42 U.S.C. 4332(2)(C) and 40 CFR part 1502 and section 
1508.1(j)). An environmental assessment is a concise public document 
prepared by a Federal agency to set forth the basis for its finding of 
no significant impact or its determination that an environmental impact 
statement is necessary (42 U.S.C. 4336(b)(2) and 40 CFR 1501.5, 1501.6, 
and 1508.1(h)). A categorical exclusion is a category of actions that 
the agency has determined, in its agency NEPA procedures, normally does 
not have a significant effect on the human environment and therefore 
does not require preparation of an environmental assessment or 
environmental impact statement (40 CFR 1501.4, 1507.3(e)(2)(ii), and 
1508.1(d)). DOE's procedures for applying categorical exclusions 
require the agency to consider whether extraordinary circumstances 
exist due to which a normally excluded action may have a significant 
environmental effect.

A. Establishment and Use of Categorical Exclusions

    DOE establishes and revises categorical exclusions pursuant to a 
rulemaking, such as this one, for defined classes of actions that the 
Department determines are supported by a record showing that the 
actions normally do not have significant environmental impacts, 
individually or cumulatively. The rulemaking process provides the 
public with an opportunity to review and comment on DOE's proposed 
changes. DOE will consider the comments received during the public 
comment period.
    Once established in DOE's NEPA procedures, use of a categorical 
exclusion requires evaluation of a proposed action against several 
conditions. DOE must determine, in accordance with 10 CFR 1021.410(b), 
that: (1) the proposed action fits within a categorical exclusion 
listed in appendix A or B to subpart D of part 1021; (2) there are no 
extraordinary circumstances \1\ related to the proposal that may affect 
the significance of the environmental impacts of the proposed action 
and require preparation of an environmental assessment or environmental 
impact statement, consistent with 40 CFR 1501.4(b)(1) and (b)(2); and 
(3) the proposal has not been improperly segmented \2\ to meet the 
definition of a categorical exclusion, there are no connected or 
related actions with cumulatively significant impacts, and the proposed 
action is not precluded by 40 CFR 1506.1 or 10 CFR 1021.211 as an 
impermissible interim action.
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    \1\ 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))
    \2\ Segmentation can occur when a proposal is broken down into 
small parts in order to avoid the appearance of significance of the 
total action. (10 CFR 1021.410(b)(3))
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    In addition, DOE evaluates whether the proposed action satisfies 
conditions included within the text of the individual categorical 
exclusion and the conditions known as ``integral elements'' that apply 
to all categorical exclusions listed in appendix B to subpart D of part 
1021 (appendix B, paragraphs (1) through (5)). Together, these 
conditions limit the types of proposals that fit within a categorical 
exclusion and help ensure that adverse environmental impacts are 
avoided or reduced. These conditions are discussed generally in this 
section and also in section II of this document, which describes each 
of DOE's proposed changes.
    The categorical exclusions discussed in this proposed rulemaking 
include conditions specific to the categorical exclusion. For example, 
the proposed action must follow applicable codes and best management 
practices. These codes and practices vary by technology and location 
(e.g., fire protection codes that differ by state). Also, they change 
over time to reflect lessons learned and to address emerging technology 
and practices. The Technical Support Document provides links to and 
summarizes information on some of the relevant codes and best practices 
for the categorical exclusions that are included in this proposed 
rulemaking. As another example, the changes proposed in this rulemaking 
specify conditions regarding siting proposed actions on previously 
disturbed or developed land and on land contiguous to previously 
disturbed and developed land. DOE defines previously disturbed or 
developed as

[[Page 78683]]

``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)) As DOE explained in a 2011 
notice of proposed rulemaking, ``In DOE's experience, the potential for 
certain types of actions to have significant impacts on the human 
environment is generally avoided when that action takes place within a 
previously disturbed or developed area, i.e., land that has been 
changed such that the former state of the area and its functioning 
ecological processes have been altered.'' (76 FR 218; January 3, 2011) 
DOE's experience reviewing proposed projects across the United States 
since 2011 supports this same conclusion. DOE also has experience 
implementing categorical exclusions that allow construction on land 
that is contiguous to previously disturbed or developed areas and 
proposes to make certain siting on contiguous land part of one of the 
proposed categorical exclusions. The area of contiguous land affected 
would be small as discussed in 10 CFR 1021.410(g)(2). Any proposed use 
of contiguous land is subject to review against all the conditions 
relevant to the categorical exclusion, including the integral elements 
that require consideration of effects on threatened species, historic 
properties, and other environmentally sensitive resources. The 
Technical Support Document includes summaries of environmental 
assessments for projects proposed on previously disturbed or developed 
land and on contiguous land.
    In addition to conditions within an individual categorical 
exclusion, the proposed action also must satisfy conditions known as 
``integral elements.'' Integral elements are part of each categorical 
exclusion in appendix B. These conditions appear at the beginning of 
the appendix and are not repeated for each categorical exclusion. 
Integral elements require that, to fit within a categorical exclusion, 
the proposed action must not threaten a violation of applicable 
environment, safety, and health requirements; require siting and 
construction or major expansion of waste storage, disposal, recovery, 
or treatment facilities; disturb hazardous substances, pollutants, or 
contaminants that preexist in the environment such that there would be 
uncontrolled or unpermitted releases; have the potential to cause 
significant impacts on environmentally sensitive resources; or involve 
governmentally designated noxious weeds or invasive species, unless 
certain conditions are met.\3\ In appendix B, DOE defines 
``environmentally sensitive resource'' as a resource that has typically 
been identified as needing protection through Executive Order, statute, 
or regulation by Federal, state, or local government, or a federally 
recognized Indian tribe. Environmentally sensitive resources include 
historic properties, threatened and endangered species, floodplains, 
and wetlands, among others. (10 CFR part 1021, subpart D, appendix B)
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    \3\ This is a summary description of the integral elements. See 
10 CFR part 1021, subpart D, appendix B for the full text.
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    Only if DOE determines that all the applicable conditions have been 
met may it issue a categorical exclusion determination. DOE posts its 
categorical exclusion determinations at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations.

B. Development of the Proposed Changes

    In this proposed rulemaking, DOE proposes to add a categorical 
exclusion for certain energy storage systems and revise categorical 
exclusions for upgrading and rebuilding transmission lines and for 
solar photovoltaic (PV) systems, as well as make conforming changes to 
related sections of DOE's NEPA regulations. DOE last made changes to 
its categorical exclusions in these areas in 2011 (76 FR 63764; October 
13, 2011). Since then, DOE has developed a better understanding of the 
potential environmental impacts of these types of actions through 
research, conducting environmental reviews, and engaging with industry, 
local communities, and other government agencies. The proposed changes 
are based on the experience of DOE and other Federal agencies, current 
technologies, regulatory requirements, and accepted industry practice. 
DOE consulted with CEQ during the development of these proposed 
changes.
    DOE has documented the technical substantiation for the proposed 
changes in this preamble and in an accompanying Technical Support 
Document. The Technical Support Document summarizes environmental 
assessments for the types of projects addressed in this proposed 
rulemaking and other information. The environmental assessments 
demonstrate how DOE and other Federal agencies evaluated potential 
environmental impacts of these projects and determined that they would 
not result in a significant environmental effect. To be clear, not 
every environmental assessment discussed in the Technical Support 
Document reflects a project that would have qualified for a categorical 
exclusion proposed in this rulemaking. Such determinations would have 
to be made on a case-by-case basis.
    DOE developed its support for this proposed rulemaking consistent 
with CEQ's 2010 guidance on establishing, applying, and revising 
categorical exclusions under NEPA (75 FR 75628; December 6, 2010). DOE 
also considered climate impacts and greenhouse gas (GHG) emissions in 
preparing these proposals consistent with CEQ's 2023 interim guidance 
on the consideration of GHG emissions and climate change (88 FR 1196; 
January 9, 2023). The description of the proposed changes in section II 
of this document includes a discussion of how the proposed changes may 
affect GHG emissions.
    The public made suggestions for revising DOE's categorical 
exclusions in response to a Request for Information (RFI) published in 
the Federal Register on November 15, 2022. (87 FR 68385). Those 
suggestions, along with others made by DOE's NEPA Compliance Officers 
and other staff, led to the proposals included in this proposed 
rulemaking. DOE evaluated the proposals by reviewing environmental 
assessments prepared by DOE and by other Federal agencies, categorical 
exclusions established by other Federal agencies, technical reports, 
applicable requirements and industry practices, and other publicly 
available information.
    Thirty-three individuals or entities responded to the Request for 
Information. The Request for Information and these comments are 
available at www.regulations.gov/docket/DOE-HQ-2023-0002/comments. 
Relevant to this proposed rulemaking, commenters asked DOE to add 
energy storage systems to its categorical exclusions, to expand the 
scope of its categorical exclusion for upgrading and rebuilding 
powerlines, and to expand its categorical exclusion for solar 
photovoltaic systems to at least 200 acres within previously disturbed 
or developed areas. DOE addresses these and related comments in its 
discussion of proposed changes in section II.B of this document. The 
identification number for individual commenter documents used on 
www.regulations.gov and the page(s) where a particular comment appears 
are

[[Page 78684]]

included in section II.B of this document.

II. Description of Proposed Changes

A. Overview

    DOE proposes to establish a new categorical exclusion for certain 
energy storage systems and to revise existing categorical exclusions 
for upgrading and rebuilding transmission lines and for solar 
photovoltaic systems. DOE's proposal also includes conforming changes 
to other categorical exclusions, to a class of actions normally 
requiring an environmental assessment, and to a class of actions 
normally requiring an environmental impact statement (10 CFR part 1021, 
subpart D, appendices B, C, and D). These proposed changes are 
discussed in sections II.B through II.D of this document.
    These proposed changes, if finalized, would not require any changes 
to or otherwise affect categorical exclusion determinations completed 
prior to the effective date of any final rule.

B. Proposed Changes to Categorical Exclusion B4.13 for Upgrading and 
Rebuilding Existing Powerlines

    Powerlines are a critical component of the electric grid that moves 
electricity from facilities that generate electricity to our 
communities, businesses, and factories. Upgrading and rebuilding \4\ 
powerlines extends their useful life. Upgrades and rebuilds can also 
help reduce the need for new powerlines and can allow the replacement 
of components with newer, more efficient and resilient technology.
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    \4\ A transmission line rebuild is typically a replacement of 
conductor and equipment without increasing capacity. Transmission 
line design and new materials and equipment would meet current 
standards and electrical clearance requirements. A transmission line 
upgrade is typically a replacement of conductor and equipment, or 
the addition of sensors or other advanced technology, to increase 
the line's capacity, such as by increasing the operating voltage or 
increasing the temperature rating.
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    One example is reconductoring. Conductors are the wires that carry 
electricity. Most of the existing electric grid uses conductors with a 
steel core for strength surrounded by aluminum for the electrical 
current. More recently, conductor designs (called advanced conductors) 
with composite or carbon cores, in place of steel, have come into use. 
Advanced conductors provide a variety of benefits including increased 
capacity, which can be used to integrate renewable energy and other 
sources into the grid without the need to build new transmission lines. 
Use of advanced conductors reduces line losses (i.e., power lost during 
transmission and distribution of electricity) relative to traditional 
conductors, thereby improving efficiency.\5\ Improvements to capacity 
and efficiency can help to ensure reliability, reduce costs to 
consumers, and reduce GHG emissions associated with electricity 
generation, transmission, and distribution.
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    \5\ Grid Strategies, LLC, ``Advanced Conductors on Existing 
Transmission Corridors to Accelerate Low Cost Decarbonization,'' 
March 2022, available at: https://acore.org/wp-content/uploads/2022/03/Advanced_Conductors_to_Accelerate_Grid_Decarbonization.pdf.
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    Upgrading and rebuilding powerlines also can avoid or reduce 
adverse environmental impacts, such as by relocating small \6\ segments 
of the existing line to avoid a sensitive environmental resource. 
Upgrading and rebuilding powerlines also can enhance resilience. For 
example, an upgrade or rebuild project might convert segments of 
existing overhead powerlines to underground lines or replace old 
transmission poles to ensure continued safe operations.
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    \6\ See 10 CFR 1021.410(g)(2) for a discussion of ``small'' in 
the context of determining the applicability of a DOE categorical 
exclusion.
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    Categorical exclusion B4.13 currently applies to upgrading or 
rebuilding ``approximately 20 miles in length or less'' of existing 
powerlines and allows for minor relocations of small segments of 
powerlines. DOE proposes to remove the mileage limitation, add options 
for relocating within an existing right of way or within otherwise 
previously disturbed or developed lands, and add new conditions.
    The potential significance of environmental impacts from upgrading 
or rebuilding powerlines is more related to local environmental 
conditions than to the length of the powerlines. For example, the 
presence of environmentally sensitive resources along the existing 
right-of-way is more pertinent than the length of the existing 
powerlines to be upgraded or rebuilt. DOE reviewed environmental 
assessments for transmission line upgrades and rebuilds of various 
lengths. (See Technical Support Document, page 4.) The length of the 
projects is based on the endpoints, which are commonly substations 
(e.g., rebuild the transmission line from substation A to substation 
B). Environmental assessments and other information summarized in the 
Technical Support Document, as well as DOE's experience with powerline 
upgrades and rebuilds do not indicate a particular mileage limit that 
would mark a threshold for significant impacts.
    DOE also proposes to clarify options for relocating powerlines 
within the scope of categorical exclusion B4.13. Relocating segments of 
a powerline can improve resilience, avoid sensitive resources, or serve 
other purposes. (See, in the Technical Support Document, page 6, DOE/
EA-1912 for an example of relocation to avoid cultural resources and 
DOE/EA-1967 to avoid a rock fall and landslide area.) Currently, B4.13 
allows ``minor relocations of small segments of the powerlines.'' DOE 
proposes to delete ``minor'' because it is unnecessary to qualify 
``relocations of small segments'' with ``minor.'' DOE also proposes to 
specify that, under the proposed revisions, small segments of 
powerlines may be relocated ``within an existing right of way or within 
otherwise previously disturbed or developed lands.'' This change would 
provide additional flexibility without increasing adverse environmental 
impacts. Any proposed relocation would be subject to all the conditions 
with the proposed categorical exclusion B4.13, including conformity to 
the integral elements that require consideration or potential impacts 
on environmentally sensitive resources and other potential impacts.
    DOE's review of environmental assessments and other information in 
preparing this proposed rulemaking identified conditions that would be 
appropriate to add to categorical exclusion B4.13. Proposals to upgrade 
or rebuild powerlines normally incorporate practices that avoid or 
reduce potential land disturbance, erosion, disturbance of 
environmentally sensitive resources, and take other measures to protect 
the local environment. To account for this, DOE proposes to add a 
condition that the proposed project would be in accordance with 
applicable requirements and would incorporate appropriate design and 
construction standards, control technologies, and best management 
practices. This condition, together with the integral elements and 
consideration of extraordinary circumstances (described in section I.A 
of this document), would ensure that DOE considers whether a proposed 
upgrade or rebuild of an existing powerline would be sited and designed 
appropriately prior to determining whether categorical exclusion B4.13 
applies.
    DOE proposes a conforming change to its class of action, C4, that 
normally requires an environmental assessment for upgrading and 
rebuilding existing powerlines more than approximately 20 miles in 
length. That proposed change would remove the reference to powerline 
length and, instead, clarify that an environmental assessment

[[Page 78685]]

normally would be prepared when the proposal does not qualify for 
categorical exclusion B4.13.
    In response to DOE's November 2022 Request for Information,\7\ 
Edison Electric Institute (EEI) suggested that DOE increase the length 
of powerlines in categorical exclusion B4.13 to ``at least 100 miles'' 
within previously disturbed or developed rights-of-way. (EEI (RFI 
0010), pages 7-8) EEI stated that, ``Such [rights-of-way] are already 
managed from an environmental, safety, and reliability standpoint and 
thus, projects in these areas should not result in significant effects 
on the human environment.'' (EEI (RFI 0010), page 8) EEI further stated 
that this change would ``prioritize projects in existing [rights-of-
way] over new greenfield projects'' and that utilizing existing rights-
of-way would ``more efficiently build the transmission infrastructure 
necessary for the clean energy transformation.'' (EEI (RFI 0010), page 
8) The Cross-Cutting Issues Group suggested that DOE omit the 20-mile 
limitation in B4.13 and stated that, ``Projects in previously disturbed 
or developed [rights-of-way] will not significantly impact the human 
environment regardless of the length of the powerlines.'' (Cross-
Cutting Issues Group (RFI 0012), page 5) DOE's proposed changes to 
categorical exclusion B4.13 are consistent with these comments.
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    \7\ The Request for Information and these comments are available 
at www.regulations.gov/docket/DOE-HQ-2023-0002/comments.
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    The Cross-Cutting Issues Group requested that DOE confirm that 
categorical exclusion B4.13 covers all types of powerlines, including 
``gen-tie lines'' and ``powerlines that feed into a federal electric 
transmission system (e.g., Tennessee Valley Authority)'' and related 
project elements such as access roads. (Cross-Cutting Issues Group (RFI 
0012), pages 4-5) DOE interprets B4.13 to encompass all types of 
powerlines, including those identified by the commenter. In regard to 
access roads and other project elements, DOE's NEPA regulations 
explain, ``A class of actions [e.g., a categorical exclusion] includes 
activities foreseeably necessary to proposals encompassed within the 
class of actions (such as award of implementing grants and contracts, 
site preparation, purchase and installation of equipment, and 
associated transportation activities).'' (10 CFR 1021.410(d))

C. Proposed New Categorical Exclusion B4.14 for Certain Energy Storage 
Systems

    For purposes of this proposed rulemaking, an energy storage system 
is a device or group of devices assembled together, capable of storing 
energy in order to supply electrical energy at a later time. Energy 
storage can be used to integrate renewable energy (such as wind and 
solar energy) into the electric grid, help generation facilities 
operate at optimal levels to meet customer demand, and reduce the use 
of less efficient generating units that would otherwise run only at 
peak times. An energy storage system also provides protection from 
power interruptions and serves as reserve power in case of power 
outages or fluctuations. The most familiar type of energy storage 
system is a group of electrochemical batteries and associated equipment 
referred to as a battery energy storage system. Another form uses a 
flywheel, which converts excess electricity from the grid to kinetic 
energy in a fast-spinning rotor. As needed, the stored energy is 
converted back to electricity and returned to the grid or put to other 
use.
    DOE and others have been developing large-scale energy storage 
systems for decades. Deployment of these systems has increased over the 
past decade. Today, energy storage systems support the operation of 
electric transmission facilities, microgrids, energy generation 
facilities, and commercial and industrial facilities.\8\
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    \8\ The U.S. Energy Information Administration published 
information about large-scale energy storage for electricity 
generation (www.eia.gov/energyexplained/electricity/energy-storage-for-electricity-generation.php) and market trends for battery 
storage (www.eia.gov/analysis/studies/electricity/batterystorage/). 
Also, DOE published an energy storage market report in 2020 
(www.energy.gov/sites/prod/files/2020/12/f81/Energy%20Storage%20Market%20Report%202020_0.pdf).
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    DOE proposes to establish new categorical exclusion B4.14 for the 
construction, operation, upgrade, or decommissioning of an 
electrochemical-battery or flywheel energy storage system within a 
previously disturbed or developed area or within a small area 
contiguous to a previously disturbed or developed area. Section I.A of 
this document includes discussion of DOE's definition of previously 
disturbed or developed area and DOE's experience referring to 
contiguous areas in its categorical exclusions. The total acreage used 
for an energy storage system will be defined by the needs of the 
proposed project. Based on past experience, DOE anticipates that energy 
storage systems typically require 15 acres or less and would be sited 
close to energy, transmission, or industrial facilities. (See Technical 
Support Document, page 24.) Consistent with this expectation and 
because contiguous land might be undisturbed and undeveloped, DOE 
proposes that siting outside a previously disturbed or developed be 
limited to a ``small'' contiguous area. DOE would consider whether a 
contiguous area is small ``in the context of the particular proposal, 
including its proposed location. In assessing whether a proposed action 
is small, in addition to the actual magnitude of the proposal, DOE 
considers factors such as industry norms, the relationship of the 
proposed action to similar types of development in the vicinity of the 
proposed action, and expected outputs of emissions or waste. When 
considering the physical size of a proposed facility, for example, DOE 
would review the surrounding land uses, the scale of the proposed 
facility relative to existing development, and the capacity of existing 
roads and other infrastructure to support the proposed action.'' (10 
CFR 1021.410(g)(2)) In addition, the proposed categorical exclusion 
includes conditions that the proposed project be in accordance with 
applicable requirements (such as land use \9\ and zoning requirements) 
and would incorporate appropriate design and construction standards, 
control technologies, and best management practices. In addition, DOE 
would review the proposed project against the criteria, including 
integral elements and extraordinary circumstances, described in section 
I.A of this document. This review would ensure that DOE considers the 
potential environmental effects of a proposed energy storage system 
prior to determining whether categorical exclusion B4.14 applies. In 
proposing this categorical exclusion, DOE has evaluated environmental 
assessments and findings of no significant impact prepared by DOE and 
other Federal agencies, categorical exclusion determinations made by 
DOE, and other information. (See Technical Support Document, page 24.)
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    \9\ On DOE sites and in other locations, land use planning may 
be documented in a site land use plan, or be subject to siting 
processes or other comparable systems. Use of land use and zoning 
requirements is inclusive of these processes.
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    DOE also proposes conforming changes to three related categorical 
exclusions. Based on its past experience with energy storage systems, 
in 2011, DOE added ``power storage (such as flywheels and batteries, 
generally less than 10 MW)'' as an example of conservation actions to 
categorical

[[Page 78686]]

exclusion B5.1, Actions to conserve energy or water. DOE also added 
``load shaping projects (such as the installation and use of flywheels 
and battery arrays)'' to the list of example actions in categorical 
exclusion B4.6, Additions and modifications to transmission facilities. 
DOE now proposes to delete ``power storage'' from the examples in B5.1. 
DOE would not include the 10 MW (megawatt) limit in new categorical 
exclusion B4.14 because capacity, whether denominated in megawatts as a 
measure of instantaneous output or megawatt-hours as a measure of the 
total amount of energy capable of being stored, is not a reliable 
indicator of potential environmental impacts. Including a capacity 
limit within the categorical exclusion could mean that technology 
improvements resulting in more power storage within the same physical 
footprint may not qualify for the categorical exclusion even though the 
potential environmental impacts have not changed. DOE also proposes to 
delete the example of flywheels and battery arrays from B4.6 but retain 
the reference to ``load shaping projects'' and add ``reducing energy 
use during periods of peak demand'' as a new example. DOE would add a 
note to B4.6 that energy storage systems are addressed in B4.14. DOE 
also would add this note to categorical exclusion B4.4, Power marketing 
services and activities, which was established in 1992 and lists 
storage and load shaping as examples. These conforming changes would 
avoid confusion over which categorical exclusion and associated 
conditions apply to energy storage systems.
    In response to DOE's November 2022 Request for Information,\10\ 
three commenters (Cross-Cutting Issues Group, Duke Energy, and EEI) 
requested that DOE include energy storage systems, and the installation 
and operation of such systems, in categorical exclusions B4.4 and B4.6. 
Cross-Cutting Issues Group explained that including energy storage 
systems explicitly in B4.4 and B4.6 would ``provide more certainty'' as 
project proponents explore different types of energy storage system 
technologies (such as compressed air energy storage and molten salt 
storage), ``particularly the timing and costs associated with deploying 
such projects.'' (Cross-Cutting Issues Group (RFI 0012), page 6) EEI 
and Cross-Cutting Issues Group asked DOE to explicitly include the 
addition or modification of a ``battery array or other energy storage 
device(s)'' as part of these categorical exclusions. (EEI (RFI 0010), 
pages 9-10; Cross-Cutting Issues Group (RFI 0012), page 6)
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    \10\ The Request for Information and these comments are 
available at www.regulations.gov/docket/DOE-HQ-2023-0002/comments.
---------------------------------------------------------------------------

    DOE's proposed changes address these comments. DOE believes that 
the best way to ensure consistency is to have a single categorical 
exclusion for energy storage systems. DOE is proposing that new 
categorical exclusion B4.14 be limited to electrochemical-battery and 
flywheel energy storage systems. At this time, DOE has not identified 
sufficient information to conclude that compressed air energy storage, 
thermal energy storage (e.g., molten salt storage), or other 
technologies normally do not present the potential for significant 
environmental impacts. DOE welcomes comments that provide analytic 
support for whether these other energy storage technologies meet the 
requirements for a categorical exclusion. If DOE identifies sufficient 
support, DOE may revise the categorical exclusion in the final rule to 
include additional energy storage technologies.

D. Proposed Changes to Categorical Exclusion B5.16 for Solar 
Photovoltaic Systems

    Solar photovoltaic (PV) technology converts sunlight into 
electrical energy. Individual PV cells, which may produce only 1 or 2 
watts of electricity, are connected together to form modules (otherwise 
known as panels). The modules are combined with other components (e.g., 
to convert electricity from direct current (DC) to alternating current 
(AC)) to create a solar PV system. These systems can be located in a 
wide variety of locations and sized for an individual home or business 
up to utility-scale, generating hundreds of megawatts.\11\
---------------------------------------------------------------------------

    \11\ DOE's Solar Energy Technologies Office has a website that 
describes solar PV technologies (www.energy.gov/eere/solar/solar-photovoltaic-technology-basics).
---------------------------------------------------------------------------

    Solar PV systems do not release GHGs while operating, though, as 
with any industrial activity, manufacturing and installing solar PV 
systems can release GHGs. The U.S. Energy Information Administration 
reports that, ``Studies conducted by a number of organizations and 
researchers have concluded that PV systems can produce the equivalent 
amount of energy that was used to manufacture the systems within 1 to 4 
years. Most PV systems have operating lives of up to 30 years or 
more.'' \12\ Thus, on a life-cycle basis, solar PV systems provide many 
years of electricity generation without GHG emissions.
---------------------------------------------------------------------------

    \12\ U.S. Energy Information Administration ``Solar explained'' 
available at www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php; retrieved August 27, 2023.
---------------------------------------------------------------------------

    DOE's current categorical exclusion B5.16, Solar photovoltaic 
systems, includes the installation, modification, operation, and 
removal of solar PV systems located on a building or other structure 
or, if located on land, within a previously disturbed or developed area 
generally comprising less than 10 acres. DOE proposes to change 
``removal'' of a solar PV system to ``decommissioning.'' 
Decommissioning encompasses recycling and other types of actions that 
occur when a facility is taken out of service. DOE also proposes to 
remove the acreage limitation for proposed projects. Based on DOE's 
experience, acreage is not a reliable indicator of potential 
environmental impacts. As discussed in section I.B of this document, 
the potential significance of environmental impacts is more related to 
local environmental conditions than to acreage. DOE's review of various 
environmental assessments indicate that an acreage limit would not 
serve as an appropriate indicator of significant impacts. This 
conclusion is illustrated, for example, by environmental assessments 
for solar PV projects larger than 1,000 acres on previously disturbed 
or developed land that would not result in significant environmental 
impacts. (See Technical Support Document, page 42.)
    The nature and significance of environmental impacts is determined 
by a proposed project's proximity to and potential effects on 
environmentally sensitive resources and other conditions accounted for 
in categorical exclusion B5.16 and in the integral elements, 
extraordinary circumstances, and other factors described in section I.A 
of this document. If the proposed changes are finalized, DOE would 
consider the integral elements and the presence of any extraordinary 
circumstances when reviewing proposed solar PV projects' eligibility 
for this categorical exclusion. This review would ensure that DOE 
considers potential environmental impacts of a proposed solar PV system 
prior to determining whether categorical exclusion B5.16 applies. For 
example, in preparing the Technical Support Document, DOE observed that 
some large solar PV systems have been proposed for agricultural land. 
While integrating solar PV systems with farms may provide a variety of 
economic and environmental benefits to farmers,\13\

[[Page 78687]]

doing so also raises questions about land use and the protection of 
important farmlands. One of the integral elements ensures that DOE 
considers the potential impacts on prime or unique farmland, or other 
farmland of statewide or local importance. (10 CFR part 1021, appendix 
B, paragraph (4)(v).)
---------------------------------------------------------------------------

    \13\ U.S. Energy Information Administration ``Solar explained'' 
available at www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php; retrieved August 27, 2023.
---------------------------------------------------------------------------

    DOE also proposes to make conforming changes in appendix C, Classes 
of Actions that Normally Require EAs but not Necessarily EISs, and in 
appendix D, Classes of Actions that Normally Require EISs. These 
appendices each include a class of actions, C7 and D7, that associates 
the level of NEPA review for interconnection requests and power 
acquisition with the power output of the electric generation resource. 
In 2011, DOE proposed for C7 that an environmental assessment normally 
would be required for the interconnection of, or acquisition of power 
from, new generation resources that are equal to or less than 50 
average megawatts ``and that would not be eligible for categorical 
exclusion under 10 CFR part 1021.'' (76 FR 233; January 3, 2011) DOE 
did not receive public comment on the proposed addition regarding 
categorical exclusion eligibility. In the 2011 final rule, DOE did not 
include the condition regarding eligibility for a categorical 
exclusion. DOE explained this decision by stating ``to improve clarity, 
DOE is removing the previously proposed condition that the new 
generation resource `would not be eligible for categorical exclusion 
under this part.' DOE normally would not prepare an environmental 
assessment when a categorical exclusion would apply. Therefore, the 
condition is unnecessary and potentially confusing.'' (76 FR 63784; 
October 13, 2011) DOE's practice continues to be that it ``normally 
would not prepare an environmental assessment when a categorical 
exclusion would apply.'' DOE is again proposing to add a condition 
regarding the applicability of a categorical exclusion to C7, however. 
In light of the proposed change to B5.16--which would remove the 
acreage restriction for solar PV systems, thereby allowing the 
categorical exclusion to apply to systems generating up to hundreds of 
megawatts--DOE believes that including a condition in C7 is appropriate 
and helpful. It will clarify DOE's practice that an environmental 
assessment is normally required ``unless the generation resource is 
eligible for a categorical exclusion.'' DOE did not propose a similar 
condition in 2011 for D7, which applies to new generation resources 
greater than 50 average megawatts. DOE is now proposing to add the same 
condition to both C7 and D7 for the reasons previously described. For 
D7, DOE also is proposing to specify that an environmental impact 
statement is not required when an environmental assessment was prepared 
that resulted in a finding of no significant impact. This is standard 
practice, and DOE proposes to add this text only to avoid any potential 
confusion.
    In response to DOE's November 2022 Request for Information,\14\ EEI 
suggested that DOE revise categorical exclusion B5.16 to apply to 
``solar photovoltaic systems, both large- and small-scale, and increase 
the acreage to at least 200 acres within previously disturbed or 
developed areas to fully capture the extent of large-scale solar 
installation that utilize more than 10 areas and may not be 
contiguous.'' (EEI (RFI 0010), page 10) DOE's proposal in this 
rulemaking is consistent with this comment.
---------------------------------------------------------------------------

    \14\ The Request for Information and these comments are 
available at www.regulations.gov/docket/DOE-HQ-2023-0002/comments.
---------------------------------------------------------------------------

III. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866, 13563, and 14094

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving 
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011) and 
amended by E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879 
(April 11, 2023), requires agencies, to the extent permitted by law, to 
(1) propose or adopt a regulation only upon a reasoned determination 
that its benefits justify its costs (recognizing that some benefits and 
costs are difficult to quantify); (2) tailor regulations to impose the 
least burden on society, consistent with obtaining regulatory 
objectives, taking into account, among other things, and to the extent 
practicable, the costs of cumulative regulations; (3) select, in 
choosing among alternative regulatory approaches, those approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity); (4) to the extent feasible, specify performance 
objectives, rather than specifying the behavior or manner of compliance 
that regulated entities must adopt; and (5) identify and assess 
available alternatives to direct regulation, including providing 
economic incentives to encourage the desired behavior, such as user 
fees or marketable permits, or providing information upon which choices 
can be made by the public. DOE emphasizes as well that E.O. 13563 
requires agencies to use the best available techniques to quantify 
anticipated present and future benefits and costs as accurately as 
possible. In its guidance, the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB) has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. Many benefits and costs associated with 
this proposed rule are not quantifiable. The direct benefits include 
reduced cost and time for environmental analysis incurred by DOE, 
project proponents, and the public. Indirect benefits are expected to 
include deployment of technologies that improve the reliability and 
resilience of the nation's electric grid and that expand electricity 
generation capacity while reducing emissions of GHGs. For the reasons 
stated in this preamble, this proposed regulatory action is consistent 
with these principles.
    This regulatory action has been determined not to be ``a 
significant regulatory action'' under E.O. 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
is not subject to review under that Executive order by OIRA of OMB.

B. Review Under Executive Orders 12898 and 14096

    E.O. 12898, ``Federal Actions To Address Environmental Justice in 
Minority Populations and Low-Income Populations,'' as supplemented and 
amended by E.O. 14096, ``Revitalizing Our Nation's Commitment to 
Environmental Justice for All,'' requires each Federal agency, 
consistent with its statutory authority, to make achieving 
environmental justice part of its mission. E.O. 14096 directs Federal 
agencies to carry out environmental reviews under NEPA in a manner that 
``(A) analyzes direct, indirect, and cumulative effects of Federal 
actions on communities with environmental justice concerns; (B) 
considers best available science and information on any disparate 
health effects (including risks) arising from exposure to pollution and 
other environmental hazards, such as information related to the race, 
national origin, socioeconomic status, age, disability, and sex of the 
individuals exposed; and (C) provides opportunities for early and 
meaningful involvement in the environmental review process by

[[Page 78688]]

communities with environmental justice concerns potentially affected by 
a proposed action, including when establishing or revising agency 
procedures under NEPA.'' DOE is providing opportunities for public 
engagement in this proposed rulemaking, including opportunities for 
communities with environmental justice concerns. Also, in determining 
whether the proposed categorical exclusions apply to a future proposed 
action, DOE will consider whether the proposed action threatens a 
violation of these Executive Orders, consistent with the first integral 
element listed in appendix B of DOE's NEPA procedures.

C. Review Under National Environmental Policy Act

    The Department's NEPA procedures assist the Department in 
fulfilling its responsibilities under NEPA and the CEQ regulations but 
are not themselves final determinations of the level of environmental 
review required for any proposed action. The CEQ regulations do not 
direct agencies to prepare an environmental assessment or environmental 
impact statement before establishing agency procedures that supplement 
the CEQ regulations to implement NEPA (40 CFR 1507.3). In establishing 
a new categorical exclusion and making other changes as described in 
this notice, DOE is following the requirements of CEQ's procedural 
regulations, which include publishing the Notice of Proposed Rulemaking 
in the Federal Register for public review and comment, considering 
public comments, and consulting with CEQ regarding conformity with NEPA 
and the CEQ regulations. (See 40 CFR 1507.3(b)).
    In this proposed rule, DOE proposes amendments that establish, 
modify, and clarify procedures for considering the environmental 
effects of DOE actions within DOE's decisionmaking process, thereby 
enhancing compliance with the letter and spirit of NEPA. DOE has 
preliminarily determined that this proposed rule would qualify for 
categorical exclusion under 10 CFR part 1021, subpart D, appendix A6, 
because it is a strictly procedural rulemaking, and no extraordinary 
circumstances exist that require further environmental analysis. 
Therefore, DOE has preliminarily determined that promulgation of these 
amendments is not a major Federal action significantly affecting the 
quality of the human environment within the meaning of NEPA, and does 
not require an environmental assessment or an environmental impact 
statement.

D. Review Under Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by E.O. 13272, ``Proper Consideration of Small Entities in Agency 
Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published procedures and 
policies on February 19, 2003, to ensure that the potential impacts of 
its rules on small entities are properly considered during the 
rulemaking process (68 FR 7990). DOE has made its procedures and 
policies available on the Office of the General Counsel's website: 
https://energy.gov/gc under Resources.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The proposed revisions to 10 CFR part 1021 
streamline the environmental review for proposed actions, resulting in 
a decrease in burdens associated with carrying out such reviews. For 
example, the proposed revisions to DOE's categorical exclusions are 
expected to reduce the number of environmental assessments that 
applicants would need to pay to have prepared for DOE's consideration. 
Applicants may sometimes incur costs in providing environmental 
information that DOE requires when making a categorical exclusion 
determination. The Government Accountability Office found in 2014 that 
there is little data available on the costs for preparing NEPA reviews 
and that agencies ``generally do not reports costs that are `paid by 
the applicant' because these costs reflect business transactions 
between applicants and their contractors and are not available to 
agency officials.'' \15\ In 2011, DOE estimated the cost of preparing 
environmental assessments over the prior decade at an average of 
$100,000 and a median of $65,000.\16\ DOE does not have more current 
cost data. The costs of making a categorical exclusion determination 
are less than those to prepare an EA. Although DOE does not have data 
on what percentage of EAs were funded by applicants that qualified as 
small entities, a beneficial cost impact is expected to accrue to 
entities of all sizes.
---------------------------------------------------------------------------

    \15\ GAO-14-369, NATIONAL ENVIRONMENTAL POLICY ACT: Little 
Information Exists on NEPA Analyses, April 2014, available at 
www.gao.gov/assets/gao-14-369.pdf.
    \16\ 76 FR 237, January 3, 2011.
---------------------------------------------------------------------------

    Based on the foregoing, DOE certifies that this proposed rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this proposed rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

E. Review Under Paperwork Reduction Act

    This proposed rulemaking will impose no new information or record-
keeping requirements. Accordingly, OMB clearance is not required under 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and the procedures 
implementing that Act, 5 CFR 1320.1 et seq.

F. Review Under Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on state, local, and tribal governments, in the 
aggregate, or to the private sector, other than to the extent such 
actions merely incorporate requirements specifically set forth in a 
statute. Section 202 of UMRA requires a Federal agency to perform a 
detailed assessment of the anticipated costs and benefits of any rule 
that includes a Federal mandate which may result in costs to State, 
local, or Tribal governments, or to the private sector, of $100 million 
or more in any one year (adjusted annually for inflation) (2 U.S.C. 
1532(a) and (b)). Section 204 of UMRA requires each agency that 
proposes a rule containing a significant Federal intergovernmental 
mandate to develop an effective process for obtaining meaningful and 
timely input from elected officers of State, local, and Tribal 
governments (2 U.S.C. 1534).
    The proposed rule would amend DOE's existing regulations governing 
compliance with NEPA to better align DOE's regulations, including its 
categorical exclusions, with its current activities and recent 
experiences. The proposed rule would not result in the expenditure by 
State, local, and Tribal governments in the aggregate, or by the 
private sector, of $100 million or more in any one year. Accordingly, 
no assessment or analysis is required under the UMRA.

[[Page 78689]]

G. Review Under Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The proposed rule would not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

H. Review Under Executive Order 13132

    E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt state law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the states and carefully assess the 
necessity for such actions. DOE has examined this proposed rule and has 
determined that it would not preempt state law and would not have a 
substantial direct effect on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by E.O. 13132.

I. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Executive 
agencies the general duty to adhere to the following requirements: (1) 
eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; and (3) provide a clear legal standard for 
affected conduct rather than a general standard and promote 
simplification and burden reduction. With regard to the review required 
by section 3(a), section 3(b) of E.O. 12988 specifically requires that 
Executive agencies make every reasonable effort to ensure that the 
regulation: (1) clearly specifies the preemptive effect, if any; (2) 
clearly specifies any effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction; (4) specifies the retroactive 
effect, if any; (5) adequately defines key terms; and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
E.O. 12988 requires Executive agencies to review regulations in light 
of applicable standards in section 3(a) and section 3(b) to determine 
whether they are met, or it is unreasonable to meet one or more of 
them. DOE has completed the required review and determined that, to the 
extent permitted by law, the proposed rule meets the relevant standards 
of E.O. 12988.

J. Review Under Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under information quality guidelines 
established by each agency pursuant to general guidelines issued by 
OMB.
    OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed this proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1)(i) is a significant regulatory action under 
E.O. 12866, or any successor order, and (ii) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy; or (2) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This regulatory 
action would not have a significant adverse effect on the supply, 
distribution, or use of energy, and is therefore not a significant 
energy action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

L. Review Under Executive Order 12630

    DOE has determined pursuant to E.O. 12630, ``Governmental Actions 
and Interference with Constitutionally Protected Property Rights,'' 53 
FR 8859 (Mar. 18, 1988), that this proposed rule would not result in 
any takings that might require compensation under the Fifth Amendment 
to the United States Constitution.

IV. Public Participation--Submission of Comments

    DOE will accept comments, data, and information regarding this 
notice of proposed rulemaking no later than the date provided in the 
DATES section at the beginning of this document. Interested individuals 
are invited to submit data, views, or arguments with respect to the 
specific sections addressed in this proposed rule using the methods 
described in the ADDRESSES section at the beginning of this document.
    1. Submitting comments via www.regulations.gov. Your contact 
information will be viewable by DOE's Office of the General Counsel 
staff only. Your contact information will not be publicly viewable 
except for your first and last names, organization name (if any), and 
submitter representative name (if any). If your comment is not 
processed properly because of technical difficulties, DOE will use this 
information to contact you. If DOE cannot read your comment due to 
technical difficulties and cannot contact you for clarification, DOE 
may not be able to consider your comment. However, your contact 
information will be publicly viewable if you include it in the comment 
itself or in any documents attached to your comment. Any information 
that you do not want to be publicly viewable should not be included in 
your comment, nor in any document attached to your comment. Persons 
viewing comments will see only first and last names, organization 
names, correspondence containing comments, and any documents submitted 
with the comments.
    Do not submit to www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (CBI)). Comments submitted through 
www.regulations.gov cannot be claimed as CBI. Comments received through 
www.regulations.gov will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section.

[[Page 78690]]

    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    2. Submitting comments via email or mail. Comments and documents 
submitted via email or mail will also be posted to www.regulations.gov. 
If you do not want your personal contact information to be publicly 
viewable, do not include it in your comment or any accompanying 
documents. Instead, provide your contact information in a cover letter. 
Include your first and last names, email address, telephone number, and 
optional mailing address. The cover letter will not be publicly 
viewable as long as it does not include any comments.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, that are written in English, and that are free of any 
defects or viruses. Documents should not contain special characters or 
any form of encryption and, if possible, they should carry the 
electronic signature of the author.
    3. Confidential Business Information. Pursuant to the provisions of 
10 CFR 1004.11, any person submitting information or data he or she 
believes to be confidential and exempt by law from public disclosure 
should submit two well-marked copies: One copy of the document marked 
``CONFIDENTIAL'' including all the information believed to be 
confidential, and one copy of the document marked ``NON-CONFIDENTIAL'' 
with the information believed to be confidential deleted. Submit these 
documents via email to [email protected]. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).
    4. Campaign form letters. Please submit campaign form letters by 
the originating organization in batches of between 50 to 500 form 
letters per PDF or as one form letter with a list of supporters' names 
compiled into one or more PDFs. This reduces comment processing and 
posting time.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
proposed rulemaking and request for comment.

List of Subjects in 10 CFR Part 1021

    Environmental impact statements.

Signing Authority

    This document of the Department of Energy was signed on November 8, 
2023, by Samuel T. Walsh, General Counsel, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on November 9, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE proposes to amend part 
1021 of chapter X of title 10, Code of Federal Regulations, as set 
forth below:

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING 
PROCEDURES

0
1. The authority citation for part 1021 continues to read as follows:

    Authority:  42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50 
U.S.C. et seq.
0
2. Appendix B of subpart D of part 1021 is amended by:
0
a. Revising B4.4, B4.6, and B4.13;
0
b. Adding B4.14; and
0
c. Revising B5.1 and B5.16.
    The revisions and addition read as follows:

Appendix B to Subpart D of Part 1021--Categorical Exclusions Applicable 
to Specific Agency Actions

* * * * *

B4. * * *

* * * * *

B4.4 Power marketing services and activities

    Power marketing services and power management activities 
(including, but not limited to, storage, load shaping and balancing, 
seasonal exchanges, and other similar activities), provided that the 
operations of generating projects would remain within normal 
operating limits. (See B4.14 of this appendix for energy storage 
systems.)
* * * * *

.6 Additions and modifications to transmission facilities

    Additions or modifications to electric power transmission 
facilities within a previously disturbed or developed facility area. 
Covered activities include, but are not limited to, switchyard rock 
grounding upgrades, secondary containment projects, paving projects, 
seismic upgrading, tower modifications, load shaping projects (such 
as reducing energy use during periods of peak demand), changing 
insulators, and replacement of poles, circuit breakers, conductors, 
transformers, and crossarms. (See B4.14 of this appendix for energy 
storage systems.)
* * * * *

B4.13 Upgrading and rebuilding existing powerlines

    Upgrading or rebuilding existing electric powerlines, which may 
involve relocations of small (as discussed at 10 CFR 1021.410(g)(2)) 
segments of the powerlines within an existing right of way or within 
otherwise previously disturbed or developed lands (as discussed at 
10 CFR 1021.410(g)(1)). Covered actions would be in accordance with 
applicable requirements, including the integral elements listed at 
the start of appendix B of this part; and would incorporate 
appropriate design and construction standards, control technologies, 
and best management practices.

B4.14 Construction and operation of electrochemical-battery or flywheel 
energy storage systems

    Construction, operation, upgrade, or decommissioning of an 
electrochemical-battery or flywheel energy storage system within a 
previously disturbed or developed area or within a small (as 
discussed at 10 CFR 1021.410(g)(2)) area contiguous to a previously 
disturbed or developed area. Covered actions would be in accordance 
with applicable requirements (such as land use and zoning 
requirements) in the proposed project area and the integral elements 
listed at the start of appendix B of this part, and would 
incorporate appropriate design and construction standards, control 
technologies, and best management practices.
* * * * *

B5. * * *

B5.1 Actions to conserve energy or water

    (a) Actions to conserve energy or water, demonstrate potential 
energy or water conservation, and promote energy efficiency that 
would not have the potential to cause significant changes in the 
indoor or outdoor

[[Page 78691]]

concentrations of potentially harmful substances. These actions may 
involve financial and technical assistance to individuals (such as 
builders, owners, consultants, manufacturers, and designers), 
organizations (such as utilities), and governments (such as state, 
local, and tribal). Covered actions include, but are not limited to 
weatherization (such as insulation and replacing windows and doors); 
programmed lowering of thermostat settings; placement of timers on 
hot water heaters; installation or replacement of energy efficient 
lighting, low-flow plumbing fixtures (such as faucets, toilets, and 
showerheads), heating, ventilation, and air conditioning systems, 
and appliances; installation of drip-irrigation systems; 
improvements in generator efficiency and appliance efficiency 
ratings; efficiency improvements for vehicles and transportation 
(such as fleet changeout); transportation management systems (such 
as traffic signal control systems, car navigation, speed cameras, 
and automatic plate number recognition); development of energy-
efficient manufacturing, industrial, or building practices; and 
small-scale energy efficiency and conservation research and 
development and small-scale pilot projects. Covered actions include 
building renovations or new structures, provided that they occur in 
a previously disturbed or developed area. Covered actions could 
involve commercial, residential, agricultural, academic, 
institutional, or industrial sectors. Covered actions do not include 
rulemakings, standard-settings, or proposed DOE legislation, except 
for those actions listed in B5.1(b) and (c) of this appendix.
    (b) Covered actions include rulemakings that establish energy 
conservation standards for consumer products and industrial 
equipment, provided that the actions would not:
    (1) Have the potential to cause a significant change in 
manufacturing infrastructure (such as construction of new 
manufacturing plants with considerable associated ground 
disturbance);
    (2) Involve significant unresolved conflicts concerning 
alternative uses of available resources (such as rare or limited raw 
materials);
    (3) Have the potential to result in a significant increase in 
the disposal of materials posing significant risks to human health 
and the environment (such as RCRA hazardous wastes); or
    (4) Have the potential to cause a significant increase in energy 
consumption in a state or region.
    (c) Covered actions also include rulemakings that establish 
energy conservation standards for new Federal buildings and Federal 
buildings undergoing major renovation, provided that the actions 
would not have the potential to:
    (1) Result in a significant decrease in indoor air quality; or
    (2) Result in a significant increase in emissions of air 
pollutants.
* * * * *

B5.16 Solar photovoltaic systems

    (a) The installation, modification, operation, or 
decommissioning of commercially available solar photovoltaic 
systems:
    (1) Located on a building or other structure (such as rooftop, 
parking lot or facility, or mounted to signage, lighting, gates, or 
fences); or
    (2) Located within a previously disturbed or developed area.
    (b) Covered actions would be in accordance with applicable 
requirements (such as land use and zoning requirements) in the 
proposed project area and the integral elements listed at the start 
of appendix B of this part, and would incorporate appropriate 
control technologies and best management practices.
0
3. Amend Appendix C of subpart D of part 1021 by revising C4 and C7 to 
read as follows:

C to Subpart D of Part 1021--Classes of Actions That Normally Require 
EAs But Not Necessarily EISs

* * * * *

C4 Upgrading, Rebuilding, or Construction of Powerlines

    (a) Upgrading or rebuilding existing powerlines when the action 
does not qualify for categorical exclusion B4.13; or construction of 
powerlines:
    (1) More than approximately 10 miles in length outside 
previously disturbed or developed powerline or pipeline rights-of-
way; or
    (2) More than approximately 20 miles in length within previously 
disturbed or developed powerline or pipeline rights-of-way.
* * * * *

C7 Contracts, Policies, and Marketing and Allocation Plans for Electric 
Power

    (a) Establishment and implementation of contracts, policies, and 
marketing and allocation plans related to electric power acquisition 
that involve:
    (1) The interconnection of, or acquisition of power from, new 
generation resources that are equal to or less than 50 average 
megawatts, unless the generation resource is eligible for a 
categorical exclusion;
    (2) Changes in the normal operating limits of generation 
resources equal to or less than 50 average megawatts; or
    (3) Service to discrete new loads of less than 10 average 
megawatts over a 12-month period.
* * * * *
0
4. Amend Appendix D to subpart D of part 1021 by revising D7 to read as 
follows:

Appendix D to Subpart D of Part 1021--Classes of Actions That Normally 
Require EISs

* * * * *

D7 Contracts, Policies, and Marketing and Allocation Plans for Electric 
Power

    (a) Establishment and implementation of contracts, policies, and 
marketing and allocation plans related to electric power acquisition 
that involve:
    (1) The interconnection of, or acquisition of power from, new 
generation resources greater than 50 average megawatts, unless the 
generation resource is eligible for a categorical exclusion or was 
evaluated in an environmental assessment resulting in a finding of 
no significant impact;
    (2) Changes in the normal operating limits of generation 
resources greater than 50 average megawatts; or
    (3) Service to discrete new loads of 10 average megawatts or 
more over a 12-month period.
* * * * *
[FR Doc. 2023-25174 Filed 11-15-23; 8:45 am]
BILLING CODE 6450-01-P