National Environmental Policy Act Implementing Procedures, 78197-78205 [2020-26459]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 85, Number 234 (Friday, December 4, 2020)]
[Rules and Regulations]
[Pages 78197-78205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26459]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / 
Rules and Regulations

[[Page 78197]]



DEPARTMENT OF ENERGY

10 CFR Part 1021

[DOE-HQ-2020-0017]
RIN 1990-AA49


National Environmental Policy Act Implementing Procedures

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
updating its National Environmental Policy Act (NEPA) implementing 
procedures pertaining to authorizations issued under the Natural Gas 
Act (NGA). These changes will improve the efficiency of the DOE 
decision-making process by saving time and expense in the NEPA 
compliance process and eliminating unnecessary environmental 
documentation for these actions that DOE has determined normally do not 
have significant effects.

DATES: This final rule is effective January 4, 2021.

ADDRESSES: Documents relevant to this rulemaking are posted on the 
Federal eRulemaking Portal at https://beta.regulations.gov/ (Docket: 
DOE-HQ-2020-0017). Documents posted to this docket include: The Notice 
of Proposed Rulemaking issued on May 1, 2020 (85 FR 25340); DOE's May 
2020 Technical Support Document, which provides additional information; 
a ``redline/strikeout'' (markup) file of affected sections of the DOE 
NEPA regulations indicating the proposed changes; the comments received 
on the proposed changes; this final rule; and DOE's November 2020 
Technical Support Document. Documents related to this rulemaking also 
are available on DOE's NEPA website at https://energy.gov/nepa.

FOR FURTHER INFORMATION CONTACT: Mr. Mark J. Matarrese, Office of 
Fossil Energy, [email protected], 202-586-0491; Edward Le Duc, 
Office of Assistant General Counsel for Environment, 
[email protected], 202-586-4007.

SUPPLEMENTARY INFORMATION:

I. Background

    DOE is responsible for authorizing exports of domestically produced 
natural gas to foreign countries under section 3 of the NGA.\1\ NEPA 
requires agencies to consider the environmental impacts of proposed 
major Federal actions as part of their decision-making process.\2\ DOE 
must comply with NEPA's requirement for an environmental review before 
reaching a final decision on applications to export natural gas to 
countries with which the United States does not have a free trade 
agreement requiring national treatment for trade in natural gas (non-
FTA countries).
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    \1\ 15 U.S.C. 717b. Section 3(a) of the NGA requires DOE to 
issue an order authorizing natural gas exports unless it finds that 
such an order ``will not be consistent with the public interest.''
    \2\ 42 U.S.C. 4332(2)(C).
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    The Council on Environmental Quality (CEQ) regulations (40 CFR 
parts 1500-1508) implementing NEPA require agencies to develop their 
own NEPA implementing procedures, as necessary, to apply the CEQ 
regulations to their specific programs and decision-making 
processes.\3\ CEQ revised its NEPA regulations in July 2020.\4\ Through 
this rule, DOE is revising its NEPA regulations \5\ consistent with the 
CEQ regulations that allow agencies to identify in their agency 
procedures categories of actions that normally do not have significant 
effects, and with the legal principle that potential environmental 
effects to be considered by an agency under NEPA do not include effects 
that the agency has no authority to prevent.
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    \3\ 40 CFR 1507.3.
    \4\ 85 FR 43304 (July 16, 2020).
    \5\ 10 CFR part 1021.
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    In particular, DOE makes these revisions because (1) DOE is 
required by section 3(c) of the Natural Gas Act \6\ to authorize 
liquefied natural gas (LNG) exports to FTA countries and lacks 
discretion with respect to such approvals and (2) DOE's review of 
applications for LNG exports to non-FTA countries is limited to 
consideration of effects that are reasonably foreseeable and have a 
sufficiently close causal connection to the granting of the export 
authorization.\7\ As set forth below, DOE revises categorical exclusion 
(CX) B5.7 to focus exclusively on the analysis of potential 
environmental impacts resulting from activities occurring at or after 
the point of export, which are within the scope of DOE's export 
authorization authority under the NGA.\8\ Such impacts begin at the 
point of export and are limited to the marine transport effects.\9\
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    \6\ Section 3(c) requires DOE to authorize applications for the 
export of natural gas to nations with which there is a free trade 
agreement (FTA countries), requiring that all such exports be 
``deemed consistent with the public interest, and . . . granted 
without modification or delay.''
    \7\ 40 CFR 1508.1(g); see also Dep't of Transp. v. Pub. Citizen, 
541 U.S. 752 (2004); Sierra Club v. Fed. Energy Regulatory Comm'n, 
827 F.3d 36 (D.C. Cir. 2016).
    \8\ This scope of analysis is consistent with decisions in 
recent years of the United States Court of Appeals for the District 
of Columbia Circuit (D.C. Circuit), which recognize that DOE 
``maintains exclusive jurisdiction over the export of natural gas as 
a commodity.'' Sierra Club v. Fed. Energy Regulatory Comm'n, 827 
F.3d at 40. Specifically, the D.C. Circuit has observed that the 
Federal Energy Regulatory Commission (FERC) has an obligation to 
comply with the NGA and NEPA with respect to its decisions to 
authorize the construction of LNG terminals, whereas DOE has an 
independent obligation ``to consider the environmental impacts of 
its export authorization decision under NEPA and determine whether 
it satisfie[s] the Natural Gas Act's `public interest' test.'' 
Sierra Club v. U.S. Dep't of Energy, 867 F.3d 189, 192 (D.C. Cir. 
2017).
    \9\ DOE defines export activities as starting at the point of 
delivery to the export vessel, and extending to the territorial 
waters of the receiving country.
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    DOE authorization also is required for imports of natural gas under 
section 3(a) of the NGA. However, section 3(c) of the NGA was amended 
by section 201 of the Energy Policy Act of 1992 \10\ to require that 
applications to authorize the import of natural gas be ``deemed 
consistent with the public interest, and . . . granted without 
modification or delay.'' This requirement leaves DOE with no discretion 
in its approvals of LNG imports, as they are deemed to be in the public 
interest. Accordingly, DOE is removing the reference to authorizations 
to import natural gas from its NEPA regulations, consistent with the 
legal principle that an agency is not required to prepare a NEPA 
analysis when it has no discretion in its action.\11\
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    \10\ Energy Policy Act of 1992, Public Law 102-486, 106 Stat. 
2776 (Oct. 24, 1992).
    \11\ 40 CFR 1501.1(a)(5), and 40 CFR 1508.1(q)(1)(ii); 10 CFR 
1021.104(b) (defining ``Actions'' requiring NEPA review but 
specifically excluding ``purely ministerial actions with regard to 
which DOE has no discretion,'' such as ``ministerial actions to 
implement congressionally mandated funding for actions not proposed 
by DOE and as to which DOE has no discretion''); Dep't of Transp. v. 
Pub. Citizen, 541 U.S. at 768-770; Sierra Club v. Fed. Energy 
Regulatory Comm'n, 827 F.3d at 40; Citizens Against Rails-to-Trails 
v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C. Cir. 2001).

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[[Page 78198]]

A. What parts of DOE's NEPA regulations is DOE amending?

    DOE's NEPA regulations list classes of actions normally associated 
with each level of NEPA review.\12\ This final rule revises the five 
classes of actions regarding applications to import or export natural 
gas to a non-FTA country. These are two CXs: B5.7 (Import or export of 
natural gas, with operational changes) and B5.8 (Import or export of 
natural gas, with new cogeneration powerplant); one class of actions 
normally requiring an EA: C13 (Import or export natural gas involving 
minor new construction); and two classes of action normally requiring 
an EIS: D8 (Import or export of natural gas involving major new 
facilities) and D9 (Import or export of natural gas involving major 
operational change).\13\
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    \12\ There are three levels of NEPA review established in the 
(CEQ NEPA implementing regulations (40 CFR parts 1500-1508)--
categorical exclusion, environmental assessment (EA), and 
environmental impact statement (EIS) each involving different levels 
of information and analysis.
    \13\ See 10 CFR part 1021, subpart D.
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B. What revisions is DOE making?

    DOE is revising the classes of action in its NEPA regulations 
regarding authorizations under section 3 of the NGA for non-FTA 
countries, consistent with the CEQ regulations,\14\ and the legal 
principle enunciated in Public Citizen and Sierra Club \15\ that 
potential environmental effects considered under NEPA do not include 
effects that the agency has no authority to prevent. DOE's 
discretionary authority under Section 3 of the NGA is limited to the 
authorization of exports of natural gas to non-FTA countries. 
Therefore, DOE need not review potential environmental impacts 
associated with the construction or operation of natural gas export 
facilities because DOE lacks authority to approve the construction or 
operation of those facilities. DOE's review is properly focused on 
potential environmental impacts resulting from the exercise of its NGA 
section 3 authority. These potential impacts would occur at or after 
the point of export to non-FTA countries.
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    \14\ 40 CFR 1508.1(g)(2).
    \15\ Dep't of Transp. v. Pub. Citizen, 541 U.S. 768-770; Sierra 
Club v. Fed. Energy Regulatory Comm'n, 827 F.3d 40 (D.C. Cir. 2016).
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    Accordingly, DOE is revising the scope of CX B5.7 by deleting the 
reference to operation of natural gas facilities. The revised B5.7 
includes a new statement that the scope includes any ``associated 
transportation of natural gas by marine vessel,'' which would be the 
only source of potential environmental impacts resulting from DOE's 
decision regarding authorizations under section 3 of the NGA. Based on 
prior NEPA reviews and technical reports,\16\ DOE has determined that 
transport of natural gas by marine vessel normally does not pose the 
potential for significant environmental impacts.
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    \16\ U.S. Dep't of Energy, Technical Support Document, Notice of 
Final Rulemaking, National Environmental Policy Act Implementing 
Procedures (10 CFR part 1021) (Nov. 2020) [hereinafter Technical 
Support Document].
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    DOE also is removing the reference to import authorizations from 
B5.7 because section 3(c) of the NGA directs that authorization 
requests to import natural gas, as described in NGA section 3(b), 
``shall be granted without modification or delay.'' DOE is not required 
to prepare NEPA analysis when it has no discretion in its action.\17\
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    \17\ Supra note 11.
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    Finally, DOE is removing and reserving CX B5.8 and classes of 
action C13, D8, and D9 because these actions are outside the scope of 
DOE's authority or are covered by the revised CX B5.7.

C. How does DOE make a CX determination?

    The revised CX B5.7 is subject to the same conditions as other CXs 
listed in appendix B to subpart D of DOE's NEPA regulations. Before a 
proposed action such as an export authorization may be categorically 
excluded, DOE must review the proposed action in accordance with 10 CFR 
1021.410 and determine that application of a CX is appropriate.
    In addition, to fit within a class of actions in appendix B 
(including B5.7), a proposed action must satisfy certain conditions 
known as ``integral elements.'' \18\ These conditions ensure that a 
proposed action would not have the potential to cause significant 
environmental impacts--for example, due to a threatened violation of 
applicable environmental, safety, and health requirements.
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    \18\ 10 CFR part 1021, subpart D, Appendix B, paragraphs (1) 
through (5).
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II. Comments Received and DOE's Responses

    DOE invited interested persons to submit comments on the Notice of 
Proposed Rulemaking and supporting information during a public comment 
period that ended on June 1, 2020.\19\ DOE received 16 comment letters 
from a number of parties, including environmental organizations, 
industry groups, and individuals. The Notice of Proposed Rulemaking and 
comments DOE received are available on the Federal eRulemaking Portal 
as described in the ADDRESSES section of this final rule.
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    \19\ Dep't of Energy, National Environmental Policy Act 
Implementing Procedures, Notice of Proposed Rulemaking and Request 
for Comment, 85 FR 25340 (May 1, 2020).
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    DOE has evaluated the comments it received. In this section, DOE 
discusses the relevant, substantive comments and provides its responses 
to those comments. Some commenters raised issues that are outside the 
scope of the Notice of Proposed Rulemaking, because they do not speak 
to DOE's NEPA obligations or to the subject of the proposed rule. These 
issues include fossil energy extraction and use, construction of LNG 
pipelines and terminals, expanding use of renewable energy generally, 
moving to a carbon-neutral energy mix, and whether DOE's public 
interest analysis under the NGA has an environmental component.

A. General Comments

    Some commenters expressed support for DOE's proposed changes. For 
example, some commenters remarked that the proposed changes will reduce 
redundancy, delay, and regulatory uncertainty. DOE acknowledges these 
comments. Some commenters opposed the proposed rulemaking, stating, for 
example, that DOE had provided no evidence the proposed changes would 
improve efficiency. Based on its experience reviewing and considering 
the potential environmental effects of many requests for export 
authorization, DOE believes that the proposed changes will improve the 
efficiency of DOE's decision-making process by focusing its NEPA review 
on those activities that are within DOE's authority under the NGA.
    Some commenters requested that DOE extend the public comment period 
on the Notice of Proposed Rulemaking. To support their request, these 
commenters referred to impacts of the proposed changes on agency 
environmental review obligations and to circumstances created by the 
COVID-19 national emergency. DOE believes that the thirty-day comment 
period provided for this proposed rulemaking provided an adequate 
opportunity for public comment for these limited revisions to its 
implementing procedures. DOE recognizes the substantial disruption and 
hardship brought about by the COVID-19 pandemic. However, the proposed 
rule was widely available in a variety of accessible formats, and

[[Page 78199]]

comment submission was available through the Federal eRulemaking Portal 
and postal mail. It is important throughout this pandemic that DOE 
continue its mission, particularly in areas that contribute to 
strengthening the United States' economy.

B. Comments Regarding the NEPA Process and Standards for Developing a 
CX

I. Environmental Documentation Supporting Decisions Made Pursuant to 
DOE's Statutory Authority
    Some commenters objected to use of a CX as proposed, stating that 
NEPA reviews are not ``unnecessary environmental documentation.'' A CX 
does not eliminate NEPA review. Rather it is a form of NEPA review that 
allows agencies to focus their resources on information pertinent to 
the agency's decision-making authority and related to potentially 
significant environmental impacts. In implementing the revised CX, DOE 
will consider whether an extraordinary circumstance is present such 
that an EA or EIS will be required.\20\ DOE will also document its 
determination that application of the CX is appropriate. DOE's use of 
the phrase ``unnecessary environmental documentation'' is a reference 
to DOE's prior practice of considering the potential environmental 
effects from activities that are beyond its decision-making authority, 
such as LNG terminal construction and operation. In virtually all of 
its recent LNG export proceedings, DOE has referenced in its export 
orders the environmental documents prepared by the Federal Energy 
Regulatory Commission (FERC).\21\ FERC, not DOE, reviews the potential 
environmental impacts of the construction and operation of the LNG 
terminals. Under the revised CX, DOE's NEPA review is tailored to its 
statutory authority and will not unnecessarily duplicate the documents 
that FERC or other agencies prepare under their statutory authorities.
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    \20\ 40 CFR 1501.4(b).
    \21\ In most cases, facility approval falls under FERC 
jurisdiction. In some cases involving offshore export facilities, 
the United States Maritime Administration (MARAD), rather than FERC, 
has statutory authority to approve facility construction and 
operation. Less commonly, where MARAD lacks jurisdiction, the Bureau 
of Ocean Energy Management (BOEM) would issue approval. DOE's 
practice was to adopt the NEPA record established by the authorizing 
agency for the facility.
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II. Scope of ``Export Activities''
    One commenter suggested that DOE should expand the definition of 
``export'' to include operations required for the export process. DOE 
acknowledges the comment and notes that the statutory term ``export'' 
is not defined in the NGA. However, in adjudications under NGA section 
3(a), DOE has construed an ``export'' of LNG from the United States as 
occurring ``when the LNG is delivered to the flange of the LNG export 
vessel.'' \22\ Therefore, DOE believes it is appropriate for its NEPA 
review of natural gas export applications to consider the potential 
environmental impacts starting at the point of delivery to the export 
vessel, and extending to the territorial waters of the receiving 
country. This is referred to in the revised CX as export of natural gas 
under section 3 of the Natural Gas Act and any associated 
transportation of natural gas by marine vessel.
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    \22\ See Kuhali v. Reno, 266 F.3d 93, 104 (2d Cir. 2001) (citing 
legal definitions of ``export'' including those in Black's Law 
Dictionary 600 (7th ed.1999) (``to send or carry abroad''), ``as 
well as with the common usage of the term, e.g., Webster's New 
Collegiate Dictionary 400 (1981) (`to carry or send (as a commodity) 
to some other place (as another country).' ''). This suggests that 
the ``export'' is limited to the action of transporting natural gas 
products from the U.S. to the receiving country, and that export 
activities therefore do not begin before the act of transporting the 
product overseas is initiated.
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III. Criteria for Establishing a CX
    Some commenters expressed concern that DOE did not meet the 
standard for establishing a CX and should have prepared an EA or an EIS 
for this rulemaking. These commenters stated that DOE (i) did not 
adequately consider the potential significance of environmental impacts 
resulting from this rulemaking, (ii) must analyze cumulative impacts of 
this rulemaking, and (iii) segmented consideration of natural gas 
exports from other connected actions in promulgating this rule.
    DOE has met its obligations under NEPA. As noted in the Review 
Under National Environmental Policy Act sections of the Notice of 
Proposed Rulemaking and this final rule, the CEQ regulations do not 
direct agencies to prepare an EA or EIS before establishing agency 
procedures that supplement the CEQ regulations to implement NEPA.\23\ 
CEQ regulations provide that an agency, when establishing a CX, must 
``consult'' with CEQ for input regarding conformity with CEQ 
regulations and NEPA before publishing new NEPA procedures in the 
Federal Register for comment.\24\ DOE has complied with this 
requirement.
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    \23\ Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 
972-73 (S.D. Ill. 1999), aff'd, 230 F. 3d 947, 954-55 (7th Cir. 
2000) (upholding the determination that establishing agency NEPA 
procedures does not require an EA or an EIS).
    \24\ 40 CFR 1507.3(b).
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    Nevertheless, to support its decision, DOE did engage in an 
analysis to properly assess the potential significance of actions 
included in the revised CX B5.7. This analysis included a detailed 
review of technical documents regarding potential effects associated 
with marine transport of LNG. These documents are included in the 
Technical Support Document and support DOE's conclusion that potential 
environmental effects associated with marine transport, the only 
reasonably foreseeable environmental impacts associated with DOE 
natural gas export authorizations, are minimal.
    Commenters asserted that DOE does not meet the standard for 
establishing a CX because it impermissibly segments natural gas exports 
from other connected actions, arguing that FERC's approval of export 
facilities is a ``connected action'' to DOE's export approval that must 
be considered as part of DOE's NEPA review. The CX adopted in this 
final rule follows the Supreme Court's holding in Public Citizen \25\ 
and the current CEQ NEPA regulation at 40 CFR 1501.9(e)(1) regarding 
the circumstances in which ``connected actions'' must be analyzed. 
According to Public Citizen and the current CEQ NEPA regulations, a 
``but for'' causal relationship is insufficient to make an agency 
responsible for a particular effect under NEPA.\26\ Accordingly, DOE's 
export authorizations and the construction and operation of export 
facilities do not have a sufficient causal connection to be considered 
connected actions. FERC has exclusive statutory authority to approve 
construction and operation of natural gas export facilities. DOE has no 
authority to approve construction or operation of such facilities, and 
thus there is no DOE decision to be informed by a NEPA analysis. The 
only decision for which DOE has authority is with respect to the export 
of the commodity itself. DOE's and FERC's approval actions are not 
interdependent.\27\ Therefore, DOE need

[[Page 78200]]

not consider effects associated with the construction and operation of 
natural gas export facilities under NEPA.
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    \25\ Pub. Citizen, 541 U.S. 767-768.
    \26\ Pub. Citizen, 541 U.S. 767 (``Respondents must rest, then, 
on a particularly unyielding variation of `but for' causation, where 
an agency's action is considered a cause of an environmental effect 
even when the agency has no authority to prevent the effect. 
However, a ``but for'' causal relationship is insufficient to make 
an agency responsible for a particular effect under NEPA and the 
relevant regulations.''); see also 40 CFR 1508.1(g).
    \27\ U.S. Dep't of Energy, Addendum to Environmental Review 
Documents Concerning Exports of Natural Gas from the United States, 
at 1 (Aug. 2014) (citing Freeport LNG Expansion, L.P. and FLNG 
Liquefaction, LLC, DOE/FE Order No. 3282, Order Conditionally 
Granting Long-Term Multi-Contract Authorization to Export Liquefied 
Natural Gas by Vessel From the Freeport LNG Terminal on Quintana 
Island, Texas, to Non-Free Trade Agreement Nations (May 17, 2013)) 
(``receiving a non-FTA authorization from DOE does not guarantee 
that a particular facility would be financed and built; nor does it 
guarantee that, even if built, market conditions would continue to 
favor export once the facility is operational.'').
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    To the extent that commenters rely on Sierra Club v. Bosworth \28\ 
to support the concerns raised above, this reliance is misplaced. As 
described in the paragraphs that follow, the facts of Bosworth are not 
analogous to this rulemaking.
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    \28\ Sierra Club v Bosworth, 510 F.3d 1016 (9th Cir. 2007).
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    With regard to scoping, DOE notes that Bosworth pertains to an 
action taken by the U.S. Forest Service. According to the Forest 
Service NEPA Handbook, scoping was required for all Forest Service 
proposed actions, including those that would be categorically 
excluded.\29\ DOE has no similar requirement in its regulations, and 
the CEQ regulations require scoping only after a decision has been made 
to prepare an EIS.\30\ Since an EIS is not required to establish NEPA 
procedures under CEQ or DOE regulations or applicable case law, scoping 
was not a prerequisite for the promulgation of this rule.
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    \29\ U.S. Forest Service, FSH 1909.15, at 31.3 (May 28, 2014).
    \30\ 40 CFR 1501.9.
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    Some commenters cited Bosworth when raising their concern that DOE 
had failed to adequately review potential cumulative impacts associated 
with promulgation of the CX, or that DOE has failed to draft the CX 
with sufficient specificity to distinguish between actions having 
significant impacts and those that do not. In contrast to the CX at 
issue in Bosworth, DOE's CX has been drafted with the requisite 
specificity, given the nature of action to which it will apply. 
Furthermore, DOE has determined that the transport of natural gas by 
marine vessels adhering to applicable maritime safety regulations and 
established shipping methods and safety standards normally does not 
pose the potential for significant environmental impacts. Impacts 
beyond marine transport are beyond the scope of DOE's NEPA review.
    In Bosworth, the court agreed with previous cases finding that the 
promulgation of agency NEPA procedures, including the establishment of 
new CXs, did not itself require preparation of an EA or EIS, but that 
agencies need only comply with CEQ regulations setting forth procedural 
requirements, including consultation with CEQ, and Federal Register 
publication for public comment. The court, however, found that the 
record relied on by the U.S. Forest Service to develop and justify a CX 
was deficient. Unlike the circumstances in Bosworth, DOE's proposed CX 
would not include exports with materially different environmental 
impacts. Although DOE's CX would apply to various types of natural gas 
exports, the degree of potential environmental effects are not expected 
to vary significantly based on the type or volume of natural gas to be 
exported, to the extent they comport with established applicable 
maritime safety regulations and shipping methods and safety standards. 
This is due, in part, to the safety controls imposed on vessels 
permitted to carry natural gas products.
    Other commenters argued that DOE does not meet the standard for 
establishing a CX because it fails to take into account the potential 
environmental impacts of natural gas export beyond marine transit, 
noting that DOE has previously acknowledged other potential impacts 
associated with its export authorizations, including inducement of 
upstream natural gas production. However, DOE has not previously 
included potential upstream and downstream impacts as part of its NEPA 
analyses for natural gas export approvals.\31\ Induced upstream 
production impacts are not reasonably foreseeable for NEPA 
purposes,\32\ and are therefore not ``effects'' subject to analysis 
under NEPA.\33\ Furthermore, downstream emissions at the point of 
consumption are too attenuated to be reasonably foreseeable and do not 
have a reasonably close causal relationship to the granting of an 
export authorization. The Notice of Proposed Rulemaking and final rule 
are consistent with these principles.
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    \31\ See Texas LNG Brownsville LLC, DOE/FE Order No. 4489, FE 
Docket No. 15-62-LNG, Opinion and Order Granting Long-Term 
Authorization to Export Liquefied Natural Gas to Non-Free Trade 
Agreement Nations, at 40-42 (Feb. 10, 2020) (reviewing the content 
of the life cycle analyses (LCAs) and Addendum; noting that the 
information in the LCA is too general to play a direct role in the 
NGA public interest analysis, and explaining that the Addendum 
supports the public interest analysis, but that environmental 
concerns should be addressed directly through environmental 
regulation, and that ``section 3(a) of the NGA is too blunt an 
instrument to address these environmental concerns efficiently.'').
    \32\ Sierra Club v. U.S. Dep't of Energy, 867 F.3d 198 (``The 
Department offered a reasoned explanation as to why it believed the 
indirect effects pertaining to increased gas production were not 
reasonably foreseeable.'').
    \33\ 40 CFR 1508.1(g).
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    One commenter noted that while DOE has relied on the life cycle 
analyses (LCAs) to support its public interest determination, the 
subject matter falls outside DOE's NEPA review obligations because the 
regasification and ultimate burning of LNG in foreign countries are 
beyond the scope of DOE requirements under NEPA. DOE agrees with this 
comment.
IV. Compliance With Applicable NEPA Requirements
    Some commenters raised concerns regarding the application of the 
proposed CX, arguing that the CX is invalid because it improperly 
excludes the consideration of end use impacts, including those related 
to climate change. Conversely, one commenter requested that DOE explain 
in the final rulemaking that effects should not be considered 
significant if they are remote in time, geographically remote, or the 
result of a lengthy causal chain. The commenter indicated that DOE 
should also state that for any required analysis of effects, ``a `but 
for' causal relationship is insufficient to make an agency responsible 
for a particular effect under NEPA.'' \34\ In response, DOE reiterates 
that the relationship between DOE's authorization decision and 
potential end use impacts is too attenuated to define end use impacts 
as reasonably foreseeable effects requiring NEPA review.
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    \34\ Quechan Indian Tribe of the Fort Yuma Indian Reservation v. 
U.S. Dept. of the Interior, 547 F. Supp. 2d 1033, 1042 (D. Ariz. 
2008) (citing Public Citizen, 541 U.S. 767).
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    Additionally, commenters alleged that DOE's commissioning of Energy 
Information Administration (EIA) analyses of export impacts on domestic 
energy markets, including the 2018 study ``Macroeconomic Outcomes of 
Market Determined Levels of U.S. LNG Exports,'' show that DOE considers 
the upstream impacts of its export decisions. The EIA studies informed 
DOE's public interest analysis under the NGA, but they do not analyze 
potential environmental impacts and have not been included as part of 
DOE's NEPA analyses supporting the natural gas export decision-making 
process.
    Commenters stated that DOE could rely on the locations of 
interstate pipelines to develop a reasonable estimate of where 
increased upstream production of natural gas may occur as a result of 
an authorization of natural gas exports. DOE disagrees with this 
comment. The question of whether upstream production impacts should be

[[Page 78201]]

included in the scope of DOE's NEPA analyses has been addressed by the 
D.C. Circuit. The D.C. Circuit has held that DOE has provided ``a 
reasoned explanation as to why it believe(s) the indirect effects 
pertaining to increased gas production were not reasonably 
foreseeable'' and therefore not subject to NEPA review.\35\ The court 
found that ``(b)ecause the Department could not estimate the locale of 
production, it was in no position to conduct an environmental analysis 
of corresponding local-level impacts, which inevitably would be more 
misleading than informative.'' \36\ The current CEQ NEPA regulations 
confirm that effects must be ``reasonably foreseeable and have a 
reasonably close causal relationship to the proposed action'' to be 
considered under NEPA, and note that ``effects should generally not be 
considered if they are remote in time, geographically remote, or the 
product of a lengthy causal chain.'' \37\ Under this standard, 
consideration of upstream impacts is not required.
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    \35\ Sierra Club v. U.S. Dep't of Energy, 867 F.3d 198.
    \36\ Id. at 199 (internal citations omitted).
    \37\ 40 CFR 1508.1(g).
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    Commenters suggested that DOE prepare a programmatic environmental 
impact statement to streamline NEPA review of natural gas export 
authorizations. DOE has identified no information to indicate that 
natural gas export authorizations pose the potential for significant 
environmental impacts.\38\ Therefore, a CX is the appropriate level of 
NEPA review, and preparation of a programmatic environmental impact 
statement is not required, nor is it necessary.\39\
---------------------------------------------------------------------------

    \38\ See Technical Support Document.
    \39\ 40 CFR 1501.4.
---------------------------------------------------------------------------

    Other commenters suggested that DOE should continue to evaluate NGA 
Section 3 export authorizations on a case-by-case basis to determine 
whether an EA or EIS is appropriate. As described in the section of 
this final rule titled ``How does DOE make a CX determination?,'' the 
proposed CX would be applied on a case-by-case basis. For any request 
for export authorization, DOE would apply the CX only after determining 
that the subject authorization complies with 10 CFR 1021.410, including 
that it presents no extraordinary circumstances warranting preparation 
of an EA or EIS, and with the integral elements listed in appendix B of 
DOE's NEPA regulations.
    Some commenters argued that DOE should be assessing the potential 
environmental impacts stemming from the construction or operation of 
natural gas export facilities. As noted in the ``Background'' section 
of this document, under Section 3 of the Natural Gas Act, DOE's 
authority is limited to reviewing applications for natural gas exports; 
FERC (or, in the case of a facility falling outside FERC jurisdiction, 
MARAD or BOEM) reviews applications to construct and operate natural 
gas import and export facilities. Because DOE lacks the authority to 
prevent effects stemming from the construction and operation of such a 
facility, it has appropriately focused its environmental review on 
proposals over which it has approval authority, as required by NEPA.
    Finally, some commenters noted that CEQ was, at the time of the 
comment period on the Notice of Proposed Rulemaking, in the process of 
revising its NEPA regulations. These commenters stated that DOE must 
comply with the CEQ regulations in effect, rather than proposed 
revisions. DOE prepared the Notice of Proposed Rulemaking consistent 
with the CEQ regulations in effect at the time the Notice of Proposed 
Rulemaking was published. DOE has prepared this final rule in light of 
the current CEQ regulations, which became effective on September 14, 
2020, and DOE has determined, in consultation with CEQ, that the rule 
is consistent with those regulations.

C. Comments Regarding DOE's Reading of Public Citizen

    Certain commenters challenged DOE's reading of Public Citizen as 
overly broad, arguing that DOE is incorrect in its conclusion that the 
case permits DOE to focus exclusively on the marine transport related 
effects of its export authorizations. In DOE's view, Public Citizen 
held that an agency has no obligation to ``gather or consider 
environmental information if it has no statutory authority to act on 
that information.'' \40\ This final rule is fully consistent with that 
holding.
---------------------------------------------------------------------------

    \40\ Sierra Club v. Federal Energy Regulatory Comm'n, 867 F.3d 
1357, 1372 (D.C. Cir. 2017) (stating that rule was the touchstone of 
Public Citizen).
---------------------------------------------------------------------------

D. Comments Regarding Indirect and Cumulative Impacts and Related DOE 
Authority

    Some commenters suggested that by establishing a CX for exports of 
natural gas, DOE is evading the obligation to perform NEPA review. As 
identified in the CEQ and DOE NEPA regulations, a CX is a form of NEPA 
review, and DOE has complied with the requirements of NEPA by 
determining that this class of actions normally does not have a 
significant effect on the human environment.\41\ Application of the 
revised CX B5.7 will occur on a case-by-case basis as described in the 
section of this final rule titled ``How does DOE make a CX 
determination?'' As explained previously, DOE is tailoring its 
environmental review consistent with the court's holding in Public 
Citizen.
---------------------------------------------------------------------------

    \41\ 40 CFR 1508.1(d).
---------------------------------------------------------------------------

    In further delineating agencies' NEPA review obligations, the D.C. 
Circuit in Freeport II agreed with DOE's rationale that effects 
pertaining to increased gas production were not reasonably foreseeable. 
Under this standard, DOE's analysis is properly limited to impacts 
stemming directly from decisions made pursuant to its statutory 
authority. The D.C. Circuit has held that local idiosyncrasies coupled 
with the limitations of estimating geology at the local level, and the 
uncertainty of predicting local regulation, land use patterns, and the 
development of supporting infrastructure are all local environmental 
issues presented by unconventional gas production. Accordingly, DOE's 
review of potential environmental impacts begins at the point of 
export, and is limited to the marine transport effects covered by the 
revised CX. The CX, which provides DOE with an option for full NEPA 
compliance, does not evade NEPA review.

E. Comments Regarding DOE's LCA

    As discussed in the Notice of Proposed Rulemaking, this rulemaking 
is consistent with--but not dependent upon--two LCAs that DOE 
commissioned to calculate the life cycle greenhouse gas (GHG) emissions 
for LNG exported from the United States. DOE commissioned both the 
original LCA, published in 2014,\42\ and an updated LCA, published in 
2019,\43\ to evaluate environmental aspects of LNG export applications 
under NGA section 3(a). Both LCAs concluded that the use of U.S. LNG 
exports for power production in European and Asian markets will not 
increase global GHG emissions from a life cycle perspective, when 
compared to regional coal extraction and consumption for power

[[Page 78202]]

production.\44\ These reports are not part of DOE's NEPA review 
process, inasmuch as the regasification and ultimate combustion of 
regasified U.S. LNG in foreign countries are beyond the scope of 
appropriate NEPA review in this context.
---------------------------------------------------------------------------

    \42\ U.S. Dep't of Energy, Life Cycle Greenhouse Gas Perspective 
on Exporting Liquefied Natural Gas From the United States, 79 FR 
32260 (June 4, 2014) (LCA GHG Report).
    \43\ U.S. Dep't of Energy, Life Cycle Greenhouse Gas Perspective 
on Exporting Liquefied Natural Gas From the United States; Notice of 
Availability of Report Entitled Life Cycle Greenhouse Gas 
Perspective on Exporting Liquefied Natural Gas From the United 
States: 2019 Update and Request for Comments, 84 FR 49278 (Sept. 19, 
2019) (LCA GHG Update).
    \44\ See, e.g., U.S. Dep't of Energy, Life Cycle Greenhouse Gas 
Perspective on Exporting Liquefied Natural Gas From the United 
States: 2019 Update--Response to Comments, 85 FR 72 78, 85 (Jan. 2, 
2020).
---------------------------------------------------------------------------

    Some commenters on the Notice of Proposed Rulemaking stated that 
the LCAs are deficient because they underestimate methane emissions 
associated with natural gas production and do not account for the rise 
of renewable energy in overseas markets. As noted, the LCA is not a 
NEPA document. Comments regarding its adequacy do not address DOE's 
NEPA analysis and related regulations, or the proposed changes in the 
Notice of Proposed Rulemaking.
    Furthermore, comments stating that the LCAs are deficient parallel 
comments that DOE received on the 2019 LCA GHG update regarding methane 
emission estimates. DOE responded to those comments before finalizing 
the 2019 LCA GHG update.\45\ Among other relevant points, DOE explained 
in its earlier response the basis for use of 0.7% as the average 
methane leakage rate in the LCA GHG update, how DOE's analysis 
considered the natural gas supply chain, differences in top-down and 
bottom-up methodologies, and how studies cited by commenters relate to 
DOE's analysis. DOE directs readers to that document for additional 
background information and discussion. Commenters on the Notice of 
Proposed Rulemaking have not raised information or arguments that were 
not raised and responded to in the 2019 GHG LCA update.
---------------------------------------------------------------------------

    \45\ U.S. Dep't of Energy, Life Cycle Greenhouse Gas Perspective 
on Exporting Liquefied Natural Gas From the United States: 2019 
Update--Response to Comments, 85 FR 72 (Jan. 2, 2020).
---------------------------------------------------------------------------

    With regard to the second point--the rise of renewable energy in 
overseas markets--DOE also received and responded to similar comments 
on the 2019 LCA GHG update. DOE explained its use of coal-fired power 
as a comparative scenario to natural gas. DOE also explained 
limitations on expanding the analysis to include a broader array of 
fuel types and on modeling the effect that U.S. LNG exports would have 
on net global GHG emissions. Commenters also suggested that U.S. LNG 
exports would compete with renewable energy sources, while other 
commenters noted that natural gas-fueled power plants, because of their 
ability to power up quickly, may be used as a backup to renewable 
energy sources. DOE acknowledges these comments, but notes that these 
comments are beyond the reasonable scope of analysis for this 
rulemaking.

F. Comments Regarding DOE's Technical Support Document

    Commenters stated that the Technical Support Document only 
considered one pathway for potential environmental impacts (leaks 
during natural gas transportation) and did not address potential 
impacts to wildlife during marine transport from noise and ship 
strikes, air pollutants and greenhouse gas emissions from the marine 
vessels, and impacts from invasive species that travel in ballast 
water. The Technical Support Document is focused on the potential 
impacts associated with transporting the LNG cargo. The Technical 
Support Document includes consideration of accidents (including spills 
and fires), safety and security during transport, and some 50 years of 
experience transporting LNG on marine vessels. With regard to comments 
related to potential environmental impacts of shipping generally, DOE's 
approval of export authorizations for natural gas has the potential to 
contribute only a very small amount to total shipping. More than 82,000 
oceangoing vessels called at U.S. ports in 2015.\46\ LNG shipments 
associated with DOE export authorizations numbered 209 in 2017, 330 in 
2018, and 563 in 2019.\47\ These LNG shipments comprise less than one 
percent of vessel calls from U.S. ports annually. Even with increased 
LNG exports, the relative proportion of LNG shipments to total shipping 
is not expected to change substantially. Thus, marine transport from 
DOE's actions does not have the potential to markedly affect the global 
environmental impacts associated with the commercial shipping industry.
---------------------------------------------------------------------------

    \46\ Bureau of Transp. Stat., U.S. Dep't of Transp., Freight 
Facts and Figures 2017, https://rosap.ntl.bts.gov/view/dot/34923.
    \47\ Office of Fossil Energy, U.S. Dep't of Energy, LNG Monthly 
2020, https://www.energy.gov/fe/downloads/lng-monthly-2020.
---------------------------------------------------------------------------

    Some commenters further stated that the Technical Support Document 
downplays significant spill and terrorism-related safety concerns. 
DOE's Technical Support Document includes a discussion of these 
concerns, as the commenters noted. The studies referenced in the 
Technical Support Document analyzed a number of scenarios, most 
involving fires, and provided information and recommendations to help 
manage and reduce hazards. Commenters pointed to a 2007 report \48\ by 
the U.S. Government Accountability Office that identified additional 
areas for research into LNG spills and fires. That report resulted in 
recommendations that DOE accepted and incorporated into a study 
conducted by Sandia National Laboratories.\49\ DOE's technical studies 
and related research by others to examine the hazards of potential 
fires and the consequences of malevolent acts is part of the process 
used by regulatory agencies and industry to understand and mitigate 
risks.
---------------------------------------------------------------------------

    \48\ U.S. Gov't Accountability Office, Maritime Security: Public 
Safety Consequences of a Terrorist Attack on a Tanker Carrying 
Liquefied Natural Gas Need Clarification, GAO[hyphen]07-316 (Feb. 
2007), https://www.gao.gov/new.items/d07316.pdf.
    \49\ U.S. Dep't of Energy, Liquefied Natural Gas Safety 
Research: Report to Congress, (May 2012), https://www.energy.gov/fe/downloads/lng-safety-research-report-congress.
---------------------------------------------------------------------------

    Commenters suggested that DOE cannot rely on certifications and 
requirements from other Federal agencies (e.g., FERC, the Department of 
Transportation, and the Department of Homeland Security) and that doing 
so in the Technical Support Document amounted to a refusal to look at 
the potential environmental impacts associated with transportation of 
LNG by marine vessel. DOE notes that it is common practice to consider 
regulatory requirements (in this case, requirements intended to 
minimize any environmental impacts of marine transport of LNG), as well 
as analyses and determinations by other Federal agencies and external 
parties, in determining the potential impacts of the activity that is 
the focus of an agency's NEPA review. Also, DOE did not rely in the 
Technical Support Document only on the safety aspects of existing 
regulations. Rather, the effectiveness of those regulations and 
industry practices over decades of LNG transport provide strong 
evidence that there is normally no potential for significant 
environmental impacts due to marine transport of LNG.

G. Comments Regarding Review by the Federal Energy Regulatory 
Commission

    Some commenters discussed the nature of DOE's interaction with FERC 
when approving natural gas exports. One commenter stated that DOE must 
actively participate in FERC's environmental review process. DOE 
intends to continue to participate as a cooperating agency in FERC's 
environmental review of natural gas export facilities.
    Several commenters noted that DOE's proposed revision reflects an 
appropriate approach to balancing FERC

[[Page 78203]]

and DOE's respective responsibilities. They explain that the proposed 
revisions do not impede FERC's ability to carry out its 
responsibilities and do not reflect an intention to hinder 
environmental review of facilities subject to section 3 of the NGA. One 
commenter noted that DOE's jurisdiction rests solely with the export of 
natural gas, and that DOE lacks the authority to approve the 
construction or operation of the natural gas facility itself, which 
rests with FERC. The commenter stated that because DOE lacks authority 
over construction and operation, it need not review potential 
environmental impacts associated with the facilities themselves. 
Instead, the commenter maintained that under Public Citizen, DOE should 
limit its review to the potential environmental impacts within DOE's 
authority, namely the impacts that occur at or after the point of 
export. DOE acknowledges these comments and has revised its NEPA 
regulations consistent with the view expressed in the comments.
    Commenters suggested that there will be a regulatory gap when an 
export facility does not fall within FERC jurisdiction. DOE lacks the 
statutory authority to authorize construction and operation of export 
facilities, regardless of whether these facilities are deemed 
jurisdictional by FERC. Therefore, DOE need not review environmental 
impacts associated with those authorizations. For a proposed export 
facility outside FERC jurisdiction, another Federal agency, such as 
MARAD or BOEM, would typically be responsible for completing the NEPA 
review.

III. Procedural Requirements

A. Review Under Executive Order 12866

    This final rule has been determined not to be a significant 
regulatory action under E.O. 12866, ``Regulatory Planning and Review,'' 
58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to 
review under that Executive Order by the Office of Information and 
Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

B. 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 particular proposed actions. The CEQ regulations do 
not direct agencies to prepare an EA or EIS before establishing agency 
procedures that supplement the CEQ regulations to implement NEPA (40 
CFR 1507.3). See Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 
962, 972-73 (S.D. III. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 
2000). In establishing this CX, 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 to obtain 
CEQ's written determination of conformity with NEPA and the CEQ 
regulations. (See 40 CFR 1507.3(b)(2)).
    Furthermore, DOE notes that this rulemaking is also categorically 
excluded under DOE's NEPA regulations (A6, Procedural rulemakings). In 
any case, the Department does not anticipate any significant 
environmental impacts from this final rule, and there are no 
extraordinary circumstances present.

C. Review Under Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a final 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.
    DOE has reviewed this final rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This final rule does not directly regulate small 
entities. The revisions to 10 CFR part 1021 revise the scope of CX B5.7 
by removing reference to operation of natural gas facilities and adding 
``transportation of natural gas by marine vessel.'' The revisions also 
focus on the export of natural gas because imports are deemed by law to 
be in the public interest. The revisions are intended to appropriately 
focus DOE's NEPA analysis for natural gas export applications, and do 
not impose any new requirements on small entities. DOE anticipates that 
the rule could reduce the burden on applicants for conducting 
environmental reviews.
    On the basis of the foregoing, DOE certified that the proposed 
rule, if adopted, would not have a significant economic impact on a 
substantial number of small entities. DOE's certification and 
supporting statement of factual basis was provided to the Chief Counsel 
for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 
605(b). DOE received no comments on its certification or any potential 
economic impact of the proposed rule, and did not make changes in this 
final rule to the rule as proposed.

D. Review Under Paperwork Reduction Act

    This 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.).

E. Review Under Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on state, local, and tribal governments. Subsection 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon state, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law 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 that title 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 that title 
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).
    This final rule amends DOE's existing regulations governing 
compliance with NEPA to update DOE's regulations for the reasons 
described in Section I. Background, of this document. This

[[Page 78204]]

final rule will 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 Unfunded Mandates Reform Act of 1995.

F. 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. This final rule will 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.

G. 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 final rule and has 
determined that it will not preempt state law and will 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.

H. 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 regulation's 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, this final rule meets 
the relevant standards of E.O. 12988.

I. 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 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 final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. 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, nor was it determined to be a 
significant energy action by the OIRA Administrator, and it is 
therefore not a significant energy action. Accordingly, DOE has not 
prepared a Statement of Energy Effects.

K. 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 final rule would not result in any 
takings that might require compensation under the Fifth Amendment to 
the United States Constitution.

L. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued E.O. 13771, ``Reducing 
Regulation and Controlling Regulatory Costs.'' E.O. 13771 states that 
the policy of the executive branch is to be prudent and financially 
responsible in the expenditure of funds, from both public and private 
sources. E.O. 13771 states that it is essential to manage the costs 
associated with the governmental imposition of private expenditures 
required to comply with Federal regulations.
    Additionally, on February 24, 2017, the President issued E.O. 
13777, ``Enforcing the Regulatory Reform Agenda.'' E.O. 13777 requires 
the head of each agency to designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, E.O. 13777 requires the establishment of a regulatory 
task force at each agency. The regulatory task force is required to 
make recommendations to the agency head regarding the repeal, 
replacement, or modification of existing regulations, consistent with 
applicable law. At a minimum, each regulatory reform task force must 
attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of Information Quality 
Act, or the guidance issued pursuant to that Act, in particular those 
regulations that rely in whole or in part on data, information, or 
methods that are not publicly available or that are

[[Page 78205]]

insufficiently transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    DOE concludes that this rulemaking is consistent with the 
directives set forth in these Executive Orders. This final rule will 
update and improve efficiency in DOE's implementation of NEPA by 
appropriately focusing DOE's NEPA analysis for natural gas export 
applications and eliminating certain requirements of its existing 
regulations that are unnecessary.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of this final rule prior to the effective date 
set forth at the outset of this rulemaking. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 1021

    Environmental impact statements.

Signing Authority

    This document of the Department of Energy was signed on November 
24, 2020, by William S. Cooper III, 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 25, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends part 1021 of 
Chapter X of Title 10 of the 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. 2401 et seq.


0
2. Appendix B to subpart D of part 1021 is amended by:
0
a. Revising section B5.7; and
0
b. Removing and reserving section B5.8.
    The revision reads as follows:

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

* * * * *
    B5. * * *
* * * * *

B5.7 Export of natural gas and associated transportation by marine 
vessel

    Approvals or disapprovals of new authorizations or amendments of 
existing authorizations to export natural gas under section 3 of the 
Natural Gas Act and any associated transportation of natural gas by 
marine vessel.

B5.8 [Removed and Reserved]

* * * * *

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

C13 [Removed and Reserved]

0
3. Remove and reserve section C13.

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

D8 and D9 [Removed and Reserved]

0
4. Remove and reserve sections D8 and D9.

[FR Doc. 2020-26459 Filed 12-3-20; 8:45 am]
BILLING CODE 6450-01-P