National Environmental Policy Act Implementing Procedures, 63764-63799 [2011-25413]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Rules and Regulations]
[Pages 63764-63799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25413]



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Vol. 76

Thursday,

No. 198

October 13, 2011

Part III





Department of Energy





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 10 CFR Part 1021





 National Environmental Policy Act Implementing Procedures; Final Rule

Federal Register / Vol. 76, No. 198 / Thursday, October 13, 2011 / 
Rules and Regulations

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DEPARTMENT OF ENERGY

[Docket ID: DOE-HQ-2010-0002]

10 CFR Part 1021

RIN 1990-AA34


National Environmental Policy Act Implementing Procedures

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
revising its National Environmental Policy Act (NEPA) Implementing 
Procedures. The majority of the changes are being made to the 
categorical exclusion provisions. These revisions are intended to 
better align the Department's regulations, particularly its categorical 
exclusions, with DOE's current activities and recent experiences, and 
to update the provisions with respect to current technologies and 
regulatory requirements. DOE is establishing 20 new categorical 
exclusions and removing two categorical exclusion categories, one 
environmental assessment category, and three environmental impact 
statement categories. Other changes modify and clarify DOE's existing 
provisions.

DATES: Effective Date: These rule changes will become effective 
November 14, 2011.

FOR FURTHER INFORMATION CONTACT: For information regarding DOE's NEPA 
implementation regulations or general information about DOE's NEPA 
procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA 
Policy and Compliance, at askNEPA@hq.doe.gov or 202-586-4600 or leave a 
message at 800-472-2756.

SUPPLEMENTARY INFORMATION:

I. Background

    DOE promulgated its regulations entitled ``National Environmental 
Policy Act Implementing Procedures'' (10 CFR part 1021) on April 24, 
1992 (57 FR 15122), and revised these regulations on July 9, 1996 (61 
FR 36222), December 6, 1996 (61 FR 64603), and August 27, 2003 (68 FR 
51429). The DOE NEPA regulations at 10 CFR part 1021 contain procedures 
that DOE shall use to comply with section 102(2) of the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4332(2)) and the 
Council on Environmental Quality (CEQ) regulations for implementing the 
procedural provisions of NEPA (40 CFR parts 1500-1508). DOE published a 
Notice of Proposed Rulemaking on January 3, 2011 (76 FR 214), to 
solicit public comments on its proposal to further revise these 
regulations by adding new categorical exclusions, revising existing 
categorical exclusions, and making certain other changes.
    Publication of the Notice of Proposed Rulemaking began a 45-day 
public comment period, scheduled to end on February 17, 2011, which 
included a public hearing on February 4, 2011, at DOE headquarters in 
Washington, DC. On February 23, 2011, in response to a request from the 
National Wildlife Federation, on behalf of itself and 9 other 
organizations, for additional time to review the proposed rule and 
submit comments, DOE re-opened the comment period until March 7, 2011 
(76 FR 9981).
    DOE received comments from private citizens, trade associations, 
nongovernmental organizations, Federal agencies, and a tribal 
government agency. The transcript of the public hearing, a request to 
extend the comment period, and the 29 comment documents received by 
DOE, including two documents received after the close of the comment 
period, are available on the DOE NEPA Web site (https://energy.gov/nepa) 
and on the Regulations.gov Web site (https://www.regulations.gov) at 
docket ID: DOE-HQ-2010-0002.
    DOE considered all comments received, including those comments on 
categorical exclusions for which DOE did not propose any changes. DOE's 
response to the comments is contained in section IV, Comments Received 
and DOE's Responses, below.
    The revisions DOE is making are consistent with guidance issued by 
CEQ on establishing, applying, and revising categorical exclusions 
under NEPA (CEQ, ``Final Guidance for Federal Departments and Agencies 
on Establishing, Applying, and Revising Categorical Exclusions Under 
the National Environmental Policy Act''; hereafter, CEQ Categorical 
Exclusion Guidance) (75 FR 75628; December 6, 2010). On December 29, 
2009, DOE initiated its periodic review by publishing a Request for 
Information in the Federal Register (74 FR 68720) (https://www.gpo.gov/fdsys/pkg/FR-2009-12-29/pdf/E9-30829.pdf) that sought input from 
interested parties to help identify activities that should be 
considered for new or revised categorical exclusions. Moreover, DOE 
evaluated each of its existing categorical exclusions in preparing 
these revisions, and this rulemaking satisfies CEQ's recommendation for 
periodic review of an agency's categorical exclusions.
    This document adopts the revisions proposed in the Notice of 
Proposed Rulemaking, with certain changes discussed below, and amends 
DOE's existing regulations at 10 CFR part 1021. In accordance with 40 
CFR 1507.3, CEQ reviewed this final rule and concluded that the 
proposed amendment of DOE's NEPA implementing regulations is in 
conformance with NEPA and the CEQ regulations. The Secretary of Energy 
has approved this final rule for publication.
    Within this document, ``existing rule'' refers to DOE's current 
NEPA implementing regulations (as last modified in 2003, before the 
revisions announced in this document); ``proposed rule'' refers to 
changes identified in DOE's Notice of Proposed Rulemaking published on 
January 3, 2011; and ``new rule'' or ``final rule'' refers to the 
changes identified in this document, which will become effective on 
November 14, 2011.

II. Statement of Purpose

    The Department last revised the categorical exclusions in its NEPA 
implementing regulations in 1996. Since that time, the range of 
activities in which DOE is involved has changed and expanded. For 
example, in recent years, DOE has reviewed thousands of applications 
from private entities requesting financial support for projects to 
develop new or improved energy technologies, including for renewable 
energy sources. This experience highlighted the potential for new and 
revised categorical exclusions and helped DOE identify appropriate 
limits to include in these categorical exclusions to ensure that the 
activities described normally would not have the potential for 
significant environmental impact.
    The purpose of this rulemaking is to revise certain provisions of 
DOE's NEPA implementing regulations to better align DOE's categorical 
exclusions with its current activities and its experience and to bring 
the provisions up-to-date with current technology, operational 
practices, and regulatory requirements. The changes will facilitate 
compliance with NEPA by providing for more efficient review of actions 
(for example, helping the Department meet the goals set forth in the 
Energy Policy Act of 2005), and allowing the Department to focus its 
resources on evaluating proposed actions that have the potential for 
significant environmental impacts. The changes will also increase 
transparency by providing the public more specific information as to 
the circumstances in which DOE is likely to invoke a categorical 
exclusion.

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What kinds of changes is DOE making?

    DOE is amending 10 CFR part 1021, subparts B, C, and D. Most of the 
changes affect the categorical exclusion provisions at 10 CFR part 
1021, subpart D, appendices A and B.
    DOE is adding 20 new categorical exclusions. These categorical 
exclusions address stormwater runoff control; lead-based paint 
containment, removal, and disposal; drop-off, collection, and transfer 
facilities for recyclable material; determinations of excess real 
property; small-scale educational facilities; small-scale indoor 
research and development projects using nanoscale materials; research 
activities in aquatic environments; experimental wells for injection of 
small quantities of carbon dioxide; combined heat and power or 
cogeneration systems; small-scale renewable energy research and 
development and pilot projects; solar photovoltaic systems; solar 
thermal systems; wind turbines; ground source heat pumps; biomass power 
plants; methane gas recovery and utilization systems; alternative fuel 
vehicle fueling stations; electric vehicle charging stations; drop-in 
hydroelectric systems; and small-scale renewable energy research and 
development and pilot projects in aquatic environments. These new 
categorical exclusions include criteria (e.g., acreage, location, and 
height limitations), based on DOE and other agency experience and 
regulatory requirements, that limit the covered actions to those that 
normally would not have the potential to cause significant impacts. DOE 
is removing two categorical exclusion categories, one environmental 
assessment category, and three environmental impact statement 
categories.
    DOE also is modifying many of the existing categorical exclusions. 
These revisions include substantive changes, changes to update 
regulatory or statutory references and requirements, and editorial 
changes. By ``substantive'' changes, DOE means a change that is more 
than a clarifying or consistency change; this term includes changes 
that alter the scope or meaning of a provision or that result in the 
addition or deletion of a provision.
    DOE is making several minor technical and organizational changes in 
the final rule, four of which were not identified at the time of the 
Notice of Proposed Rulemaking. First, after issuing the Notice of 
Proposed Rulemaking, DOE noted that 10 CFR 1021.215(d) includes an 
outdated reference to Sec.  1021.312. In the DOE NEPA regulations 
promulgated in 1992, Sec.  1021.312 addressed environmental impact 
statement implementation plans. In 1996, DOE removed this requirement, 
and the section number was reserved. Therefore, DOE is deleting the 
reference to Sec.  1021.312 from Sec.  1021.215. Second, in the Notice 
of Proposed Rulemaking, DOE proposed two changes to correct cross-
references within Sec.  1021.311. After further consideration, DOE is 
modifying the proposed change to Sec.  1021.311(d) to improve clarity 
by deleting the introductory clause, rather than only correcting the 
cross-reference in that clause. (As described in the Notice of Proposed 
Rulemaking, DOE is also revising Sec.  1021.311(f) (i.e., correcting 
one cross-reference).) Third, in the Notice of Proposed Rulemaking, DOE 
proposed to change the title for the group of categorical exclusions 
from B4.1 through B4.13. After further consideration, DOE is further 
modifying the title to ``Categorical Exclusions Applicable to Electric 
Power and Transmission.'' Fourth, a comment from Tri-Valley CAREs (at 
page 1) requested that DOE not remove the table of contents from its 
NEPA regulations (as proposed in the Notice of Proposed Rulemaking), 
explaining that the table of contents is ``extremely useful.'' In 
response, DOE is retaining a table of contents in each appendix. These 
changes have no regulatory effect.

III. Overview of Categorical Exclusions

What is a categorical exclusion?

    A categorical exclusion is a category (class) of actions that a 
Federal agency has determined normally do not, individually or 
cumulatively, have a significant impact on the human environment and 
for which, therefore, neither an environmental assessment nor an 
environmental impact statement is required. See 40 CFR 1508.4. A 
categorical exclusion determination is made when an agency finds that a 
particular proposed action fits within a categorical exclusion and 
meets other applicable requirements, including the absence of 
extraordinary circumstances (i.e., circumstances in which a normally 
excluded action may have a significant environmental effect).
    DOE establishes 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 they normally will 
not have significant environmental impacts, individually or 
cumulatively. This record is based on DOE's experience, the experience 
of other agencies, completed environmental reviews, professional and 
expert opinion, and scientific analyses. DOE also considers public 
comment received during the rulemaking, as detailed in section IV, 
Comments Received and DOE's Responses, below.
    As CEQ states in its Categorical Exclusion Guidance, ``Categorical 
exclusions are not exemptions or waivers of NEPA review; they are 
simply one type of NEPA review * * *. Once established, categorical 
exclusions provide an efficient tool to complete the NEPA environmental 
review process for proposals that normally do not require more 
resource-intensive EAs [environmental assessments] or EISs 
[environmental impact statements]. The use of categorical exclusions 
can reduce paperwork and delay, so that EAs or EISs are targeted toward 
proposed actions that truly have the potential to cause significant 
environmental effects'' (75 FR at 75631).

How does DOE use a categorical exclusion in its decisionmaking?

    As part of its environmental review responsibilities under NEPA, a 
DOE NEPA Compliance Officer examines an individual proposed action to 
determine whether it qualifies for a categorical exclusion. DOE's 
process is consistent with that described in CEQ's Categorical 
Exclusion Guidance: ``When determining whether to use a categorical 
exclusion for a proposed activity, a Federal agency must carefully 
review the description of the proposed action to ensure that it fits 
within the category of actions described in the categorical exclusion. 
Next, the agency must consider the specific circumstances associated 
with the proposed activity, to rule out any extraordinary circumstances 
that might give rise to significant environmental effects requiring 
further analysis and documentation'' in an environmental assessment or 
environmental impact statement (75 FR at 75631).
    DOE's existing and new regulations ensure that the NEPA Compliance 
Officer follows the steps described by CEQ. Before DOE may apply a 
categorical exclusion to a particular proposed action, DOE must 
determine in accordance with 10 CFR 1021.410(b) that: (1) The proposed 
action fits within an established categorical exclusion as listed in 
appendix A or B to subpart D, (2) there are no extraordinary 
circumstances related to the proposal that may affect the significance 
of the environmental impacts of the proposed action, and (3) the 
proposal is not ``connected'' to other actions with potentially 
significant impacts and is not related to other actions with 
cumulatively significant impacts, and the proposed action is not 
precluded as

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an impermissible interim action pursuant to 40 CFR 1506.1 and 10 CFR 
1021.211.
    To fit within a categorical exclusion listed in appendix B, a 
proposed action also must satisfy certain conditions known as 
``integral elements'' (appendix B, paragraphs (1) through (5)). 
Briefly, these conditions require that a categorical exclusion listed 
in appendix B not be applied to a proposed action with the potential to 
cause significant environmental impacts due to, for example, 
threatening a violation of applicable environmental, safety, and health 
requirements; requiring siting and construction, or major expansion, of 
a new waste storage, disposal, recovery, or treatment facility; 
disturbing hazardous substances such that there would be uncontrolled 
or unpermitted releases; having the potential to cause significant 
impacts on environmentally sensitive resources; or involving 
genetically engineered organisms, unless the proposed activity would be 
contained in a manner to prevent unauthorized release into the 
environment and conducted in accordance with applicable requirements.
    The level of detail necessary to evaluate the potential for 
extraordinary circumstances and otherwise to determine whether a 
categorical exclusion is appropriate for a particular proposed action 
varies. For example, appendix A to subpart D lists categorical 
exclusions for several routine administrative actions, studies, and 
planning activities. A NEPA Compliance Officer normally can determine 
whether a categorical exclusion listed in appendix A is appropriate by 
reviewing a description of the proposed project. However, to determine 
whether a categorical exclusion from appendix B applies, in addition to 
the project description, a NEPA Compliance Officer also would consider 
information about a proposed project site and the result of reviews by 
other agencies (such as of historic properties or threatened and 
endangered species), as well as other related information.

IV. Comments Received and DOE's Responses

    DOE has considered the comments on the proposed rulemaking received 
during the public comment period as well as all late comments. DOE has 
incorporated some revisions suggested in these comments into the final 
rule. The following discussion describes the comments received, 
provides DOE's response to the comments, and describes changes to the 
rule resulting from public comments and from DOE's further 
consideration of its proposal. DOE does not repeat discussion of topics 
in this final rule that have not changed relative to what was described 
in the Notice of Proposed Rulemaking. Thus, the Notice of Proposed 
Rulemaking may be consulted for further explanation regarding changes 
in the final rule.
    DOE received no comments or only supportive comments on the 
following sections of the rule and is not making any changes beyond 
those discussed in the Notice of Proposed Rulemaking: In subpart C, 
sections 1021.322 and 1021.331; in subpart D, sections 1021.400; all of 
appendix A; in appendix B, paragraphs (1) through (2), and categorical 
exclusions B1.1, B1.2, B1.4, B1.6 through B1.8, B1.10, B1.12, B1.13, 
B1.15 through B1.17, B1.20 through B1.23, B1.27, B1.28, B1.30 through 
B1.32, B1.35, B1.36, B2.1, B2.2, B2.4 through B2.6, B3.2 through B3.5, 
B3.10, B3.13, B4.2, B4.3, B4.5, B4.8, B5.1, B5.2, B5.6, B5.7, B5.9 
through B5.12, B5.14, B5.21 through B5.23, B6.2 through B6.10, B7.1, 
B7.2; in appendix C, C1 through C3, C5, C6, C9 through C11, C13, C14, 
C16; and in appendix D, D2 through D6, D8 through D12. In the final 
rule, therefore, these sections remain as discussed in the Notice of 
Proposed Rulemaking and are not discussed further. In addition, this 
final rule does not further discuss editorial changes described in the 
Notice of Proposed Rulemaking or in section II, Statement of Purpose, 
above.

A. General Comments on Proposed Amendments

    The U.S. Environmental Protection Agency stated that the ``proposed 
changes will enhance the efficiency of DOE's environmental review 
process while maintaining appropriate consideration of environmental 
effects pursuant to NEPA'' and, accordingly, did not object to the 
proposed rulemaking.
    In addition, several comments expressed support for the 
establishment of particular new categorical exclusions, especially for 
renewable energy technologies. DOE received comments expressing support 
for the following categorical exclusions as proposed: B1.7 (electronic 
equipment) from Edison Electric Institute (at page 2); B3.9 (projects 
to reduce emissions and waste generation) from Edison Electric 
Institute (at page 2) and National Wildlife Federation (at page 1); 
B3.16 (research activities in aquatic environments) from Biotechnology 
Industry Organization (at page 3) and Pacific Northwest National 
Laboratory, a DOE government research laboratory (at page 1); B5.13 
(experimental wells for injection of small quantities of carbon 
dioxide) from Pacific Northwest National Laboratory (at page 1); B5.14 
(combined heat and power or cogeneration systems) from Pacific 
Northwest National Laboratory (at page 1); B5.15 (small-scale renewable 
energy research and development and pilot projects) from Biotechnology 
Industry Organization (at page 3), Defenders of Wildlife (at page 2), 
and Pacific Northwest National Laboratory (at page 1); B5.16 (solar 
photovoltaic systems) from Pacific Northwest National Laboratory (at 
page 1); B5.17 (solar thermal systems) from Pacific Northwest National 
Laboratory (at page 1); B5.18 (wind turbines) from Granite Construction 
Company (at page 2) and Pacific Northwest National Laboratory (at page 
1); B5.19 (ground source heat pumps) from Pacific Northwest National 
Laboratory (at page 1); B5.20 (biomass power plants) from Pacific 
Northwest National Laboratory (at page 1); B5.21 (methane gas recovery 
and utilization systems) from Pacific Northwest National Laboratory (at 
page 1); B5.22 (alternative fuel vehicle fueling stations) from Pacific 
Northwest National Laboratory (at page 1); B5.23 (electric vehicle 
charging stations) from National Electrical Manufacturers Association 
(at page 1), National Wildlife Federation (at page 1), and Pacific 
Northwest National Laboratory (at page 1); B5.24 (drop-in hydroelectric 
systems) from Pacific Northwest National Laboratory (at page 1); and 
B5.25 (small-scale renewable energy research and development and pilot 
projects in aquatic environments) from Biotechnology Industry 
Organization (at page 3), Ocean Renewable Power Company (at page 1), 
and Pacific Northwest National Laboratory (at page 1). DOE received a 
comment from the Biotechnology Industry Organization (at pages 1 and 3) 
in support of the use of algal biomass for renewable energy production, 
stating that the existing regulatory framework was sufficient to 
protect human health and the environment. The comment supported the use 
of categorical exclusions for related small-scale and laboratory 
research and pilot projects. Finally, DOE received a comment from the 
Blue Ridge Environmental Defense League (at page 1) indicating general 
support for solar photovoltaic and solar thermal facilities and wind 
turbines, but cautioned that the public may see categorical exclusions 
as loopholes, which could undermine support for these technologies. DOE 
notes these comments. Section 1021.410 describes

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the process for applying a categorical exclusion.
    Several comments expressed general objections to or concerns 
regarding DOE's proposed revision of its NEPA regulations. A comment 
from an anonymous individual (at pages 1-2) rejected all proposed 
changes, and a comment from the Blue Ridge Environmental Defense League 
(at page 1) opposed the addition of any categorical exclusions. DOE 
notes these comments. A comment from Jean Public (at page 1) listed 
wildlife, birds, reptiles, and mammals as environmental resources to be 
protected and stated that environmental assessments should never be 
allowed or used. DOE responds that DOE's NEPA regulations provide for 
the consideration of potential impacts on environmentally sensitive 
resources, and the provisions relating to environmental assessments are 
consistent with NEPA and the requirements of the CEQ NEPA regulations. 
A comment from Joyce Dillard (at page 1) stated that public health and 
safety should be a consideration first and foremost; DOE notes that 
public health and safety are among the key considerations in all NEPA 
reviews, including the establishment and application of categorical 
exclusions.
    DOE received a comment from the Chesapeake Bay Foundation (at page 
2) asking that DOE provide ``a clear explanation and evidential 
support,'' in accordance with the CEQ Categorical Exclusion Guidance, 
when proposing categorical exclusions. DOE establishes categorical 
exclusions based on Departmental experience, the experience of other 
agencies, completed environmental reviews, professional and expert 
opinion, and scientific analyses. For example, some of DOE's proposed 
categorical exclusions are supported by existing comparable categorical 
exclusions from other Federal agencies and their related experience. 
DOE prepared a Technical Support Document to provide analysis and 
identify reference documents supporting the revisions described in the 
Notice of Proposed Rulemaking. In preparation of this final rule, DOE 
updated and expanded the Technical Support Document. The Technical 
Support Document is available at  https://energy.gov/nepa/downloads/technical-support-document-supplement-department-energys-notice-final-rulemaking.
    A comment from the Biotechnology Industry Organization (at page 2) 
expressed support for science-based regulation that ``focuses on 
reducing and eliminating actual risks to the natural and human 
environment'' and applauded DOE's goals of removing barriers toward the 
adoption of innovative research on renewable energy.
    A comment from the Kaibab Band of Paiute Indians (at page 1), 
citing the April 2010 Gulf oil spill, expressed opposition to the use 
of categorical exclusion determinations for experimental and research 
and development projects because of their unpredictability, and 
recommended that DOE analyze experimental or unproven techniques in 
environmental assessments or environmental impact statements. The 
comment recommends a similar approach for proven techniques employed in 
extreme situations. In response to this and other comments related to 
research and development activities, DOE reviewed its categorical 
exclusions and revised some of the listed actions and associated 
limits, such as described for categorical exclusions below. Limits on 
the size, scope, and other aspects (such as containment), combined with 
other criteria, restrict the application of categorical exclusions for 
research and development activities to projects that normally would not 
have a potential for significant environmental impacts. For proposed 
projects involving proven techniques in extreme situations, DOE would 
evaluate whether extraordinary circumstances are present such that 
application of a categorical exclusion is not appropriate.
    DOE received a comment from Brian Musser (at page 2) regarding the 
regulation of coal combustion residue under Resource Conservation and 
Recovery Act Subtitle C. DOE considers this comment to be out of scope 
because it does not relate to the DOE NEPA regulations. However, DOE 
would consider potential impacts associated with coal combustion 
residue where relevant to NEPA review of a specific proposal.

B. Comments on DOE's NEPA Process

    A comment from the Ocean Renewable Power Company (at pages 1-2), 
referring to a pilot project for which DOE provides funding and another 
agency has licensing authority, stated that the NEPA process involves 
duplicative and unnecessary reviews by multiple agencies, which 
increases costs for both the agencies and the applicant and imposes 
delays that can jeopardize private financing. This comment does not 
propose specific changes to DOE's NEPA regulations, but suggests that 
coordination with other environmental review requirements could be 
improved. DOE's NEPA regulations state, in Sec.  1021.341, that ``DOE 
shall integrate the NEPA process and coordinate NEPA compliance with 
other environmental review requirements to the fullest extent 
possible.'' DOE appreciates the concern expressed by the comment and 
will continue to seek ways to improve coordination of environmental 
review requirements.
    A comment from the Chesapeake Bay Foundation (at page 2) supported 
the recommendation in the CEQ Categorical Exclusion Guidance that an 
agency such as DOE develop a schedule for the periodic review of its 
categorical exclusions at least every 7 years. DOE also agrees with the 
recommendation for periodic review and considers this rulemaking to 
satisfy the CEQ recommendation for the near term. DOE intends to review 
its categorical exclusions periodically, consistent with CEQ guidance, 
to ensure that DOE's categorical exclusions ``remain current and 
appropriate,'' as stated in the CEQ guidance.

C. Comments on Amendments to Subpart D

1. Placement of Categorical Exclusions in Appendix A vs. Appendix B
    A comment from Pacific Northwest National Laboratory (at page 3) 
asked DOE to evaluate moving several categorical exclusions from 
appendix B, for which determinations are documented and made publicly 
available, to appendix A, for which determinations are not required to 
be documented. For example, the comment stated that requiring 
documentation for routine maintenance (categorical exclusion B1.3) that 
is performed many times daily is an inefficient use of resources and 
results in gaps in compliance. DOE decided not to move any categorical 
exclusion from appendix B to appendix A because such a change would 
reduce transparency in the Department's NEPA compliance program. To 
address the potential inefficiency identified by the comment, DOE is 
adding a new paragraph (10 CFR 1021.410(f)) to the final rule that 
describes current practice to address proposed recurring activities to 
be undertaken during a specified time period, such as routine 
maintenance activities for a year, in a single categorical exclusion 
determination after considering the potential aggregated impacts.
    Another comment from Sandy Beranich (at page 1) stated that many 
categorical exclusions in appendix A are for routine activities, and 
NEPA should not be required for routine activities. The comment stated 
that, if some level

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of scale is not provided to indicate when an appendix A review is 
triggered, then DOE should post such appendix A categorical exclusion 
determinations online to inform the public how DOE uses its resources. 
DOE responds that the application of categorical exclusions listed in 
appendix A normally is a simple matter that entails minimal cost. DOE 
has not found use of these categorical exclusions to be problematic and 
has not identified any need to establish a level of activity below 
which NEPA normally would not apply. Some DOE offices choose to post to 
the Web their determinations for categorical exclusions listed in 
appendix A, but DOE does not require this practice.
    A comment from Sandy Beranich (at page 3) stated that NEPA ``is all 
about ground-disturbing actions--not routine activities.'' DOE 
disagrees that NEPA is limited to ground-disturbing activities (for 
example, activities could also have air or water impacts that would be 
appropriate for NEPA review), and is not making any change in response 
to this comment.
    Another comment from Sandy Beranich (at page 3) provided an example 
of a proposed action, the components of which, in her opinion, fell 
within six different appendix A and appendix B categorical exclusions. 
DOE agrees that it is possible for a project to be covered by more than 
one categorical exclusion. Furthermore, as stated in DOE's NEPA 
regulations (10 CFR 1021.410(d)), a class of actions includes 
activities foreseeably necessary to proposals encompassed within the 
class of actions (such as associated transportation activities and 
award of implementing grants and contracts). Where an action might fit 
within multiple categorical exclusions, a NEPA Compliance Officer 
should use the categorical exclusion(s) that best fits the proposed 
action.
2. Previously Disturbed or Developed Area
    DOE received comments (e.g., from Chesapeake Bay Foundation (at 
page 4), Defenders of Wildlife (at page 2), and National Wildlife 
Federation (at pages 1, 4-5)) on the use of the phrase ``previously 
disturbed or developed,'' which appears in several categorical 
exclusions. In the Notice of Proposed Rulemaking, DOE explained that 
the phrase referred to ``land that has been changed such that the 
former state of the area and its functioning ecological processes have 
been altered.'' Comments (e.g., from Defenders of Wildlife (at page 2), 
National Wildlife Federation (at page 5)) expressed concern that the 
phrase was too vague to provide a useful limit and suggested, for 
example, including in the condition a requirement for the existence of 
infrastructure; further clarification is necessary, comments said. A 
comment from Sandy Beranich (at page 3) pointed out that land disturbed 
or developed in the past could, if abandoned, have reverted to a 
natural state and, therefore, suggested that ``previously disturbed or 
developed'' should be bounded by a timeframe. Comments (e.g., from 
Defenders of Wildlife (at page 2) and National Wildlife Federation (at 
page 4)) also suggested that DOE mention the many brownfield, 
Superfund, and abandoned mine locations that have been identified 
through the Environmental Protection Agency's Repowering America 
Program, in partnership with DOE. In response, DOE clarifies that the 
phrase ``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. This 
clarification applies to all uses of the phrase ``previously disturbed 
or developed.'' This clarification has been added to Sec.  1021.410(g).
    In addition, DOE notes that two definitions offered in a public 
comment may help readers understand the meaning of previously disturbed 
and developed. A comment from the Chesapeake Bay Foundation (at page 4) 
suggested that ``previously disturbed'' should refer to land that has 
largely been transformed from natural cover to a managed state and that 
has remained in that managed state (rather than reverted back to 
largely natural cover). The comment (at page 4) also suggested that 
``developed area'' should refer to land that is largely covered by man-
made land uses and activities (residential, commercial, institutional, 
industrial, and transportation).
    A few comments (e.g., from the Chesapeake Bay Foundation (at page 
4) and Defenders of Wildlife (at page 2)) pointed out that the 
interpretation of the phrase depends on the context, and that, in some 
contexts, there is a potential for significant impacts when a 
particular action is taken, even if it occurs in a disturbed area. 
Although DOE agrees with this possibility, the potential for such 
impacts would be unlikely and would constitute an ``extraordinary 
circumstance,'' where application of a categorical exclusion would be 
inappropriate. Before applying a categorical exclusion, a NEPA 
Compliance Officer will evaluate the context of the proposed action to 
determine whether it complies with the integral elements of the 
categorical exclusion (listed in appendix B, paragraphs (1) through 
(5)) and whether there are any associated extraordinary circumstances 
that would affect the significance of impacts.
3. Small or Small-Scale
    Several comments (e.g., DOI (at page 3), Ocean Renewable Energy 
Coalition (at page 2)) asserted that DOE's use of ``small'' and 
``small-scale'' was too vague to adequately define the scope of classes 
of actions and asked DOE to more narrowly define or clarify its use of 
these terms. Comments (e.g., Chesapeake Bay Foundation (at page 5), 
Defenders of Wildlife (at page 4), Sandy Beranich (at page 2)) 
requested that DOE add a physical limitation such as acreage or a 
megawatt limitation or number of turbines (in categorical exclusion 
B5.18) to further define ``small'' or ``small-scale.'' A comment from 
the Chesapeake Bay Foundation (at page 5) asked DOE to impose a 5-acre 
or smaller limit for small-scale educational facilities in categorical 
exclusion B3.14 and expressed concern regarding the potential size 
(footprint) of a facility for nanoscale research in categorical 
exclusion B3.15. A comment from the Chesapeake Bay Foundation (at page 
3) noted that determining what is a small size is influenced by the 
location of a proposed action on the landscape. In response, DOE 
provides a general discussion of ``small'' and ``small-scale'' below 
and also discusses the use of these terms in the context of specific 
classes of actions (B1.26, B1.29, B3.14, B3.15, B5.18, B5.25, B6.1, C8 
(distinguishing small scale and large scale)) later in this preamble.
    In determining whether a particular proposed action qualifies for a 
categorical exclusion, DOE considers terms such as ``small'' and 
``small-scale'' 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, a DOE NEPA 
Compliance Officer would review the surrounding land uses, the

[[Page 63769]]

scale of the proposed facility relative to existing development, and 
the capacity of existing roads and other infrastructure to support the 
proposed action. This clarification has been added to Sec.  
1021.410(g).
    DOE has reviewed the proposed categorical exclusions and classes of 
action on a case-by-case basis to further consider size or scale issues 
in response to comments received on the Notice of Proposed Rulemaking. 
Among other factors, DOE considered that these terms appear in its 
existing categorical exclusions and have been applied by NEPA 
Compliance Officers for more than 15 years. As a result of this review, 
DOE concludes that the terms ``small'' and ``small-scale'' remain 
appropriate for describing the types of activities contemplated by 
categorical exclusions. The provisions of the individual categorical 
exclusions using these terms, together with the integral elements at 
appendix B, paragraphs (1) through (5), the general restrictions on the 
application of categorical exclusions at 10 CFR 1021.410, and 
extraordinary circumstances, provide the necessary safeguards to ensure 
that categorical exclusions are not applied to activities that could 
result in significant environmental impacts. Therefore, DOE is 
retaining its proposed use of ``small'' and ``small-scale'' in its 
final rule.
4. Would Not Have the Potential To Cause Significant Impacts
    DOE received comments (e.g., from Columbia Riverkeeper (at page 6), 
National Wildlife Federation (at page 3)) on its proposed use of the 
phrase ``would not have the potential for significant impact'' in both 
the integral element provision (at appendix B, paragraph (4)) of 
appendix B categorical exclusions and a number of specific categorical 
exclusions (categorical exclusions B1.11, B1.18, B1.24, B2.3, and 
B5.18). In response to these comments, DOE reviewed each use of the 
phrase in the Notice of Proposed Rulemaking. After further 
consideration, DOE is revising related text in several categorical 
exclusions. See discussion of categorical exclusions B1.5, B1.11, B3.1, 
B3.8, and B4.6 below. DOE is continuing to use the phrase in other 
categorical exclusions and related text.
    A comment from Tri-Valley CAREs (at pages 2-3) expressed concern 
that DOE was expanding the categorical exclusions ``without providing 
an analysis of whether there was actually a potential for significant 
environmental impact.'' A comment from Sandy Beranich (at page 1) 
stated that use of ``significant'' would leave the degree of impact 
open to interpretation, whereas, the use of ``adversely affect'' was 
clearer. DOE's support for its categorical exclusions is provided in 
this preamble and in the Technical Support Document. For a description 
of how DOE creates and applies its categorical exclusions, please see 
Section III above.
    To understand why DOE is changing some conditions in categorical 
exclusions that previously used the phrase ``not adversely affect'' or 
that required no change in a particular parameter, it is helpful to 
understand that it was never DOE's intent or practice that 
identification of any adverse impact or change whatsoever--no matter 
how small--would disqualify the use of a categorical exclusion for a 
particular proposed project. Also, the changes are consistent with the 
purpose of categorical exclusions, which is to define a set of 
activities that normally pose no potential for significant 
environmental impacts, and with the CEQ NEPA regulations and its 
Categorical Exclusion Guidance.
    One change DOE is making, for example, is in the integral elements 
applicable to all categorical exclusions in appendix B. The existing 
regulation states that a proposed action ``must not adversely affect 
environmentally sensitive resources.'' DOE is changing this to state 
that a proposed action must not ``have the potential to cause 
significant impacts on environmentally sensitive resources.'' This is 
consistent with the CEQ Categorical Exclusion Guidance, which states 
that an agency may define its extraordinary circumstances ``so that a 
particular situation, such as the presence of a protected resource, is 
not considered an extraordinary circumstance per se, but a factor to 
consider when determining if there are extraordinary circumstances, 
such as a significant impact to that resource.''
    In the case of individual categorical exclusions, use of the term 
``significant'' helps to highlight a type of potential impact that a 
NEPA Compliance Officer must consider when reviewing a particular 
proposed action. This is consistent with the CEQ Categorical Exclusion 
Guidance, which suggests that it may be useful for agencies to 
``identify additional extraordinary circumstances and consider the 
appropriate documentation when using certain categorical exclusions.''
5. Definition of ``State''
    DOE uses the phrase ``Federal, state, or local government'' (and 
similar phrases) in 10 CFR part 1021. Unless otherwise specified, the 
term ``state'' refers broadly to any of the states that comprise the 
United States, any territory or possession of the United States (such 
as Puerto Rico, Guam, and American Samoa), and the District of 
Columbia. This definition is a clarification of, not a change in, DOE 
practice because DOE always has applied, and continues to apply, this 
meaning to the word ``state'' in 10 CFR part 1021.
6. Comments on Section 1021.410
    Comments (e.g., from Tri-Valley CAREs (at pages 2-4)) asked how DOE 
would meet the CEQ requirement that an agency's categorical exclusion 
procedures ``provide for extraordinary circumstances in which a 
normally [categorically] excluded action may have a significant 
environmental effect'' (40 CFR 1508.4). DOE's regulations require that, 
before a categorical exclusion may be applied to a proposed action, a 
determination must be made that there are no extraordinary 
circumstances related to a proposal that may affect the significance of 
the proposal's environmental effects (10 CFR 1021.410(b)(2)). In the 
final rule, DOE describes 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)). If DOE identifies an 
extraordinary circumstance that would result in a potentially 
significant impact, then it would not apply a categorical exclusion to 
that proposed action. Further, under DOE's NEPA regulations, before a 
categorical exclusion from appendix B of subpart D may be applied, DOE 
must determine that the proposed action satisfies all of the conditions 
known as ``integral elements'' (appendix B, paragraphs (1) through 
(5)). These conditions ensure that a categorical exclusion is not 
applied to any proposed action that would have the potential to cause 
significant environmental impacts due to, for example, a threatened 
violation of applicable environmental, safety, and health requirements, 
or by disturbing hazardous substances such that there would be 
uncontrolled or unpermitted releases. Together, DOE's extraordinary 
circumstances and integral elements provisions require the Department 
to consider whether there are conditions surrounding a proposal that 
may affect the significance of the proposal's environmental effects.
    Another comment (from Columbia Riverkeeper (at page 5)) expressed 
concern that DOE's extraordinary

[[Page 63770]]

circumstances are not consistent with CEQ guidance and asserted that 
DOE's examples of extraordinary circumstances set a ``higher bar'' than 
CEQ's examples. The comment suggested that, to be consistent with CEQ 
guidance, DOE's extraordinary circumstances be based on the ``presence 
of an endangered or threatened species or a historic resource.'' DOE 
based its approach to extraordinary circumstances on the definitions of 
categorical exclusion and significance in the CEQ regulations. See 40 
CFR 1508.4 and 1508.27. DOE finds its approach to be consistent with 
the CEQ Categorical Exclusion Guidance, which states (II.C), ``An 
extraordinary circumstance requires the agency to determine how to 
proceed with the NEPA review. For example, the presence of a factor, 
such as a threatened or endangered species or a historic resource, 
could be an extraordinary circumstance, which, depending on the 
structure of the agency's NEPA implementing procedures, could either 
cause the agency to prepare an EA or an EIS, or cause the agency to 
consider whether the proposed action's impacts on that factor require 
additional analysis in an EA or an EIS. In other situations, the 
extraordinary circumstance could be defined to include both the 
presence of the factor and the impact on that factor. Either way, 
agency NEPA implementing procedures should clearly describe the manner 
in which an agency applies extraordinary circumstances and the 
circumstances under which additional analysis in an EA or an EIS is 
warranted'' (75 FR at 75633). Under DOE's categorical exclusion 
process, therefore, it is an action's potential for significant 
impacts, for example, on a sensitive resource, and not simply the 
presence of a sensitive resource, that is the basis for determining the 
need for an environmental assessment or environmental impact statement. 
It is the responsibility of the DOE NEPA Compliance Officer to consider 
this potential for significant impacts and to consult with other 
agencies as necessary when considering a proposed action. This is 
expressly addressed in an integral element at appendix B, paragraph 
(4).
    DOE received a comment from Columbia Riverkeeper (at page 4) 
referring to CEQ's guidance that agencies: Consider cumulative effects; 
define physical, temporal, and environmental factors that would 
constrain the use of a categorical exclusion; and consider 
extraordinary circumstances. The comment cited the CEQ provisions, but 
did not recommend any particular change to DOE's regulations. DOE 
considered each of the cited issues in formulating its rule, and the 
rule is consistent with the CEQ Categorical Exclusion Guidance. 
Further, DOE consulted with CEQ throughout the rulemaking process in 
accordance with 40 CFR 1507.3.
    DOE is codifying at 10 CFR 1021.410(e) its policy to document and 
post online appendix B categorical exclusion determinations. As stated 
in the Notice of Proposed Rulemaking, such postings will not include 
information that DOE would not disclose pursuant to the Freedom of 
Information Act (FOIA). A comment from Tri-Valley CAREs (at page 2) 
expressed concern that the public would be deprived of a right to 
challenge such withholdings under FOIA. Further, the comment asked DOE 
to explain the process by which the public can challenge potentially 
improper withholdings related to an online posting of a categorical 
exclusion determination. DOE is committed to openness, as is evidenced 
by its decision to post appendix B categorical exclusion determinations 
online. The procedures for requesting information related to a 
categorical exclusion determination are the same as for any other DOE 
document. If applicable, DOE will apply FOIA exemptions to a 
categorical exclusion determination--as it would with any document--to 
appropriately limit the release of particular types of information 
(e.g., classified or confidential business information). To the fullest 
extent possible, DOE will segregate information that is exempt from 
release under FOIA to allow public review of the remainder of the 
document. See 10 CFR 1021.340. For further information on FOIA 
processes at DOE, see DOE's FOIA resources posted at https://energy.gov/management/office-management/operational-management/freedom-information-act, including a handbook on procedures for filing a 
request at https://energy.gov/sites/prod/files/maprod/documents/Handbook.pdf.
    The addition of paragraphs (f) and (g) to 10 CFR 1021.410 is 
discussed in section IV.C.1-3, above.
7. Integral Elements
Federally Recognized Indian Tribe
    In its Notice of Proposed Rulemaking, DOE proposed adding 
``Federally recognized Indian tribe'' to its list of entities that 
designate property as historically, archeologically, or architecturally 
significant in appendix B, paragraph (4)(i). In addition, in the final 
rule, to be consistent with the Advisory Council on Historic 
Preservation implementing regulations (36 CFR part 800) for the 
National Historic Preservation Act, DOE has added ``Native Hawaiian 
organization'' to the list of entities that may designate such 
properties. The Advisory Council on Historic Preservation regulations 
provide consultative roles to both Indian tribes and Native Hawaiian 
organizations in the Section 106 process under the National Historic 
Preservation Act. The Advisory Council's regulations define a Native 
Hawaiian organization as ``any organization which serves and represents 
the interests of Native Hawaiians; has as a primary and stated purpose 
the provision of services to Native Hawaiians; and has demonstrated 
expertise in aspects of historic preservation that are significant to 
Native Hawaiians''; and the regulations define Native Hawaiian as ``any 
individual who is a descendent of the aboriginal people who, prior to 
1778, occupied and exercised sovereignty in the area that now 
constitutes the State of Hawaii'' (36 CFR 800.16(s)).
    Further, DOE clarifies that use of ``Federally recognized Indian 
tribe'' in subpart D, appendix B of 10 CFR part 1021, is intended to 
include Indian and Alaska Native tribes that the Secretary of the 
Interior recognizes as eligible for programs and services provided by 
the United States to Indians because of their status as Indians. (25 
U.S.C. 479a-1). Each year, the Bureau of Indian Affairs (BIA) publishes 
a list in the Federal Register of the recognized tribal entities. For 
purposes of appendix B to subpart D of 10 CFR part 1021, Federally 
recognized Indian tribes are those entities included on the BIA list. 
(A link to the list and a supplement, current at the time of this final 
rule's publication, can be found on the BIA Web site at https://www.bia.gov/DocumentLibrary/index.htm.) DOE would refer to the most 
current BIA list when considering the integral element.
Environmentally Sensitive Resources
    DOE received comments (e.g., from the Chesapeake Bay Foundation (at 
page 3), the Ocean Renewable Energy Coalition (at page 5), and Pacific 
Northwest National Laboratory (at page 1)) suggesting further 
modifications or clarifications to the list of environmentally 
sensitive resources that are part of the integral elements applicable 
to appendix B categorical exclusions (appendix B, paragraph (4)). DOE 
does not intend the examples in B(4) to be an exhaustive list of 
environmentally sensitive resources, but

[[Page 63771]]

agrees that additional examples would be helpful. DOE is adding the 
Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act 
to B(4)(ii). In addition, DOE is correcting a typographical error in 
the reference to the Marine Mammal Protection Act in B(4)(ii). Another 
comment (from the Chesapeake Bay Foundation (at page 4)) asked DOE to 
expand its listing of environmentally sensitive resources to 
``recognize and protect * * * resources of high local, state, or 
federal value and concern that may not enjoy, or may not yet have 
received, specific regulatory or statutory protection.'' Specifically, 
the comment (at page 3) asserted that DOE's clarification of 
environmentally sensitive resources was too limited because it would 
not include ``riparian stream buffers * * * large forest or contiguous 
woodland assemblages, locally specified high value farmland * * * 
`candidate' state or federal threatened or endangered species or their 
habitat * * * drinking water supply streams or reservoirs * * * or * * 
* headwater streams.'' In response to the comment, DOE is adding 
``state-proposed endangered or threatened species or their habitat'' to 
the description of environmentally sensitive resources listed in 
integral element B(4)(ii), which already explicitly provides for 
consideration of ``Federally-proposed or candidate species or their 
habitat.'' DOE is not adding the other resources described in the 
comment because they are not generally resources that have been 
identified as needing protection through Executive Order, statute, or 
regulation by Federal, state, or local government, or a Federally 
recognized Indian tribe. However, DOE acknowledges that the resource 
examples contained in the comment may be considered as extraordinary 
circumstances in making an individual categorical exclusion 
determination.
    Similarly, another comment (from Joyce Dillard (at page 1)) 
expressed general concern regarding destruction of wetlands and 
aquifers and salt water intrusion. DOE's existing integral elements 
B(4)(iii) and (vi) provide for consideration of wetlands as well as 
special sources of water (including sole source aquifers) as 
environmentally sensitive resources. With respect to salt water 
intrusion, DOE would consider the potential for salt water intrusion, 
including whether it constitutes an extraordinary circumstance, before 
making a categorical exclusion determination. Also, see discussion of 
``would not have the potential to cause significant impacts'' in 
section IV.C.4 of this preamble.
Genetically Engineered Organisms, Synthetic Biology, Governmentally 
Designated Noxious Weeds, and Invasive Species
    DOE received several comments (in reference to categorical 
exclusions B3.6, B3.8, B3.12, B3.15, B5.15, B5.20, and B5.25; e.g., 
from Center for Food Safety on behalf of itself and 3 other 
organizations (at pages 3-5) and National Wildlife Federation (at page 
2)) regarding the use of genetically engineered organisms, noxious 
weeds, and invasive non-native species, such as non-native algae. These 
comments suggested that the development and use of such organisms could 
affect entire ecosystems. The comments expressed concern that these 
organisms could not be contained and could escape into the environment 
and potentially cause a variety of environmental and human health 
impacts.
    DOE received similar comments (e.g., from Center for Food Safety on 
behalf of itself and 3 other organizations (at pages 2 and 3)) 
regarding ``synthetic biology,'' suggesting that the impacts of 
developing and releasing genetically engineered organisms, using man-
made DNA sequences, were largely unknown and that such organisms could 
interact with native species and adversely affect the environment and 
entire ecosystems.
    In addition, a comment from Center for Food Safety on behalf of 
itself and 3 other organizations (at page 2) asserted that DOE has 
provided more than $700 million in funding for synthetic biology 
research since 2006 and that this level of funding amounts to a 
programmatic research program that should be analyzed in an 
environmental impact statement. The comment also asserted that DOE is 
attempting to segment the potential environmental impacts of this 
research by seeking categorical ``exemptions'' from NEPA for individual 
research projects. As an initial matter, DOE disagrees with the 
comment's funding estimate. For example, almost all the funding is 
attributed to the Genomics Science Program and the Joint Genomics 
Institute, both of which are ongoing initiatives (begun in the 1980s 
and 1990s, respectively) that support research in several areas, only 
some of which can be referred to as synthetic biology. Moreover, DOE 
disagrees with the assertion that an amount of funding is sufficient to 
define a programmatic research program for which DOE should prepare an 
environmental impact statement. In determining whether an environmental 
impact statement is required or would be beneficial to its 
decisionmaking, DOE considers the nature of decisions to be made and 
the relationships among proposed actions and potential environmental 
impacts, among other factors. DOE has determined that, at this time, 
its activities related to synthetic biology do not constitute a 
programmatic research program and do not require an environmental 
impact statement.
    DOE received several comments regarding research into bioenergy 
technologies, either performed or funded by DOE. Some of the comments 
(e.g., from the Biotechnology Industry Organization (at page 3)) were 
supportive of this research and encouraged the use of categorical 
exclusions to remove barriers to the adoption of these technologies. 
Some comments (e.g., from Center for Food Safety on behalf of itself 
and 3 other organizations (at page 5), National Wildlife Federation (at 
pages 2 and 4)) expressed concern about bioenergy research and the 
harvest of biomass involving invasive and non-native species, including 
non-native and genetically engineered algal species, specifically 
citing categorical exclusions B3.6, B3.8, and B5.25. The comments 
suggested that intentional or inadvertent release of invasive or non-
native species, especially in aquatic environments, could have 
unanticipated consequences, including threats to local ecosystems, and 
the National Wildlife Federation (at page 2) suggested that categorical 
exclusions were appropriate only for plant species that ``successfully 
pass[ed] an established weed risk assessment.'' Another comment (from 
the Biotechnology Industry Organization (at page 2)) requested that any 
regulations regarding biotechnology reflect the principles laid out in 
the Coordinated Framework for the Regulation of Biotechnology (51 FR 
23302; June 26, 1986) and articulated by the White House Emerging 
Technologies Interagency Policy Coordination Committee.
    To address these comments, DOE considered the addition of further 
restrictions to individual categorical exclusions, but opted instead to 
add a new integral element that will be applicable to all appendix B 
categorical exclusions. This integral element requires that, to fit the 
classes of actions in appendix B, a proposal must be one that would not 
``[i]nvolve 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 [that is, a 
release

[[Page 63772]]

not subject to an experimental use permit issued by the Environmental 
Protection Agency (EPA), a permit or notification issued by the 
Department of Agriculture (USDA), or a granting of nonregulated status 
by the USDA] 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.'' Examples of applicable guidelines and 
requirements include National Institutes of Health ``Guidelines for 
Research Involving Recombinant DNA Molecules'' (https://oba.od.nih.gov/rdna/nih_guidelines_oba.html); USDA ``Noxious Weed Regulations'' (7 
CFR part 360) and regulations for the ``Introduction of Organisms and 
Products Altered or Produced Through Genetic Engineering Which Are 
Plant Pests or Which There Is Reason to Believe Are Plant Pests'' (7 
CFR part 340); and EPA Reporting Requirements and Review Processes for 
Microorganisms (40 CFR part 725, particularly 40 CFR 725.200-470). 
These regulations impose appropriate containment and confinement 
measures to address the risk of inadvertent release of experimental 
organisms. In order to qualify for a categorical exclusion, a proposed 
action would have to prevent unauthorized releases into the 
environment, comply with all applicable requirements, and meet other 
conditions of the applicable categorical exclusion.
    This new integral element obviates the need for the last sentence 
in categorical exclusion B3.8, as proposed, and that sentence is 
removed in the final rule. This integral element limits the activities 
that can receive a categorical exclusion determination to those that 
will not be released into the environment without proper authorization 
and will be conducted in accordance with applicable requirements, which 
include containment, confinement, or other requirements for working 
with these organisms. The new integral element takes into account both 
the principles laid out in the Coordinated Framework for the Regulation 
of Biotechnology and by the White House Emerging Technologies 
Interagency Policy Coordination Committee.
    A comment relating to categorical exclusion B3.8 (from the National 
Wildlife Federation (at page 2) and also from Center for Food Safety on 
behalf of itself and 3 other organizations (at page 4)) stated that 
USDA approval of a genetically engineered crop does not guarantee 
environmental safety. DOE believes that, in general, it is reasonable 
to consider compliance with applicable regulations as a factor in 
determining whether a proposed action would have the potential to cause 
significant environmental impacts. In the case of genetically 
engineered plants regulated by USDA, its regulations require the agency 
to perform independent NEPA analysis before the plants may be grown 
outdoors (7 CFR part 372). When grown for research purposes, USDA 
regulations further require that field trials of genetically engineered 
plants are conducted with sufficient confinement methods in place such 
that the plants will not persist in the environment or pose the risk 
for significant environmental impacts (7 CFR part 340).
    DOE is generally limiting categorical exclusions involving the 
activities mentioned in the comments to small-scale, as opposed to 
commercial-scale, actions. In DOE's experience, small-scale research 
and development activities normally do not have the potential to cause 
significant environmental impacts (see section IV.C.3).
    A few comments (e.g., Center for Food Safety on behalf of itself 
and 3 other organizations (at page 4)) suggested that genetically 
engineered crops grown for biofuels production might cause 
environmental impacts different from genetically engineered plants 
grown for other purposes, but the comments did not indicate what those 
differential impacts would be. DOE foresees no difference in 
environmental impacts from a small research plot of genetically 
engineered plants grown for the purpose of food or fiber as compared to 
the impacts from the same plants grown for biomass.
    Another comment from the National Wildlife Federation (at page 2) 
and the Center for Food Safety (on behalf of itself and 3 other 
organizations; at page 4) suggested that, once DOE provided funding to 
a researcher to perform work with non-g