Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Proposed Rules 78681 

$55,000 for compliance activities; and 

$20,000 for research and studies. 

Budgeted expenditures for the 2022– 

2023 crop year were $3,592,000; 

$1,232,000; $703,900; $55,000; and 

$45,000, respectively. The increased 

assessment rate is necessary to help 

cover the expenditures for the 2023– 

2024 crop year, while reducing the 

amount of money needing to be 

expended from reserves. 

The Order provides authority for the 

Committee to formulate an annual 

budget of expenses and propose an 

assessment rate to cover such expenses 

authorized by AMS. Prior to arriving at 

this budget and assessment rate, the 

Committee considered alternative 

spending levels at its June 28, 2023, 

meeting but ultimately decided that the 

recommended budget and assessment 

rate were reasonable and necessary to 

properly administer the Order. 

This proposed rulemaking would 

increase the assessment obligation 

imposed on handlers. While the 

increased assessment rate would impose 

some additional costs on handlers, the 

costs are minimal and applied 

uniformly on all handlers. Some of the 

additional costs may be passed on to 

producers. However, these costs would 

be offset by the benefits derived by the 

industry from the operation of the 

Order. 

The Committee’s meetings are widely 

publicized throughout the production 

area. The raisin industry and all 

interested persons are invited to attend 

the meetings and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the June 

28, 2023, meeting was public meeting 

and all entities, both large and small, 

were able to express views on this issue. 

In addition, interested persons are 

invited to submit comments on this 

proposed rulemaking, including the 

regulatory and information collection 

impacts of this action on small 

businesses. 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the Order’s information 

collection requirements have been 

previously approved by OMB and 

assigned OMB No. 0581–0178, 

Vegetable and Specialty Crops. No 

changes in those requirements are 

necessary as a result of this action. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

This proposed rulemaking would not 

impose any additional reporting or 

recordkeeping requirements on either 

small or large California raisin handlers. 

As with all Federal marketing order 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

AMS has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this proposed rulemaking. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https://

www.ams.usda.gov/rules-regulations/ 

moa/small-businesses. Any questions 

about the compliance guide should be 

sent to Richard Lower at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

After consideration of all relevant 

material presented, including the 

information and recommendations 

submitted by the Committee and other 

available information, USDA has 

determined that this proposed 

rulemaking is consistent with and will 

effectuate the purposes of the Act. 

A 30-day comment period is provided 

to allow interested persons to respond 

to this proposed rulemaking. All written 

comments timely received will be 

considered before a final determination 

is made on this proposed rule. 

List of Subjects in 7 CFR Part 989 

Grapes, Marketing agreements, 

Raisins, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Agricultural Marketing 

Service proposes to amend 7 CFR part 

989 as follows: 

PART 989—RAISINS PRODUCED 

FROM GRAPES GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 989 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 989.347 is revised to read 

as follows: 

§ 989.347 Assessment rate. 

On and after August 1, 2023, an 

assessment rate of $24 per ton is 

established for assessable raisins 

produced from grapes in California. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–25247 Filed 11–15–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF ENERGY 

10 CFR Part 1021 

[DOE–HQ–2023–0063] 

RIN 1990–AA48 

National Environmental Policy Act 

Implementing Procedures 

AGENCY: Office of the General Counsel, 

Department of Energy. 

ACTION: Notice of proposed rulemaking 

and request for comment. 

SUMMARY: The U.S. Department of 

Energy (DOE or the Department) 

proposes to amend its implementing 

procedures (regulations) governing 

compliance with the National 

Environmental Policy Act (NEPA). The 

proposed changes would add a 

categorical exclusion for certain energy 

storage systems and revise categorical 

exclusions for upgrading and rebuilding 

transmission lines and for solar 

photovoltaic systems, as well as make 

conforming changes to related sections 

of DOE’s NEPA regulations. The 

proposed changes are based on the 

experience of DOE and other Federal 

agencies, current technologies, 

regulatory requirements, and accepted 

industry practice. DOE invites public 

comments on the proposed changes. 

DATES: DOE must receive comments by 

January 2, 2024 to ensure consideration. 

ADDRESSES: Documents relevant to this 

proposed rulemaking are posted at 

www.regulations.gov (Docket: DOE–HQ– 

2023–0063). Documents posted to this 

docket include: this notice of proposed 

rulemaking and DOE’s Technical 

Support Document, which provides 

additional information regarding certain 

proposed changes and a redline/ 

strikeout version of affected sections of 

the DOE NEPA regulations indicating 

the changes in this proposed rule. 

Submit comments, labeled ‘‘DOE 

NEPA Implementing Procedures, RIN 

1990–AA48,’’ by one of the following 

methods: 

1. www.regulations.gov: Enter ‘‘Docket 

ID DOE–HQ–2023–0063’’ in the search 

box. Click on ‘‘Comment’’ to submit 

comments, which you may enter 

directly on the web page or by 

uploading in a file. 

2. Postal Mail: Mail comments to 

NEPA Rulemaking Comments, Office of 

NEPA Policy and Compliance (GC–54), 

U.S. Department of Energy, 1000 

Independence Avenue SW., 

Washington, DC 20585. Because 

security screening may delay mail sent 

through the U.S. Postal Service, DOE 

encourages electronic submittal of 


lotter on DSK11XQN23PROD with PROPOSALS1
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1 DOE defines extraordinary circumstances as 

‘‘unique situations presented by specific proposals, 

including, but not limited to, scientific controversy 

about the environmental effects of the proposal; 

uncertain effects or effects involving unique or 

unknown risks; and unresolved conflicts 

concerning alternative uses of available resources.’’ 

(10 CFR 1021.410(b)(2)) 

2Segmentation can occur when a proposal is 

broken down into small parts in order to avoid the 

appearance of significance of the total action. (10 

CFR 1021.410(b)(3)) 

comments through 

www.regulations.gov. 

3. Email: send comments to DOENEPA-Rulemaking@hq.doe.gov. 

Instructions: For detailed instructions 

on submitting comments and additional 

information on the rulemaking process, 

see the ‘‘Public Participation— 

Submission of Comments’’ (section IV) 

of the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: For 

questions concerning how to comment 

on this proposed rule, contact Ms. 

Carrie Abravanel, Office of NEPA Policy 

and Compliance, at DOE-NEPARulemaking@hq.doe.gov or 202–586– 

4600. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction and Background 

A. Establishment and Use of Categorical 

Exclusions 

B. Development of the Proposed Changes 

II. Description of Proposed Changes 

A. Overview 

B. Proposed Changes to Categorical 

Exclusion B4.13 for Upgrading and 

Rebuilding Existing Powerlines 

C. Proposed New Categorical Exclusion 

B4.14 for Certain Energy Storage Systems 

D. Proposed Changes to Categorical 

Exclusion B5.16 for Solar Photovoltaic 

Systems 

III. Procedural Issues and Regulatory Review 

A. Review Under Executive Orders 12866, 

13563, and 14094 

B. Review Under Executive Orders 12898 

and 14096 

C. Review Under National Environmental 

Policy Act 

D. Review Under Regulatory Flexibility Act 

E. Review Under Paperwork Reduction Act 

F. Review Under Unfunded Mandates 

Reform Act of 1995 

G. Review Under Treasury and General 

Government Appropriations Act, 1999 

H. Review Under Executive Order 13132 

I. Review Under Executive Order 12988 

J. Review Under Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Review Under Executive Order 12630 

IV. Public Participation—Submission of 

Comments 

V. Approval of the Office of the Secretary 

I. Introduction and Background 

The National Environmental Policy 

Act, as amended, (42 U.S.C. 4321 et 

seq.) requires Federal agencies to 

provide a detailed statement regarding 

the environmental impacts of proposals 

for major Federal actions significantly 

affecting the quality of the human 

environment. The Council on 

Environmental Quality (CEQ) 

regulations implementing NEPA (40 

CFR parts 1500–1508) require agencies 

to develop their own NEPA 

implementing procedures to apply the 

CEQ regulations to their specific 

programs and decision-making 

processes (40 CFR 1507.3). DOE’s NEPA 

procedures are contained in 10 CFR part 

1021. 

NEPA establishes three types of 

review for proposed actions— 

environmental impact statement, 

environmental assessment, and 

categorical exclusion—each involving 

different levels of information and 

analysis. An environmental impact 

statement is a detailed analysis of 

reasonably foreseeable environmental 

effects prepared for a major Federal 

action significantly affecting the quality 

of the human environment (42 U.S.C. 

4332(2)(C) and 40 CFR part 1502 and 

section 1508.1(j)). An environmental 

assessment is a concise public 

document prepared by a Federal agency 

to set forth the basis for its finding of no 

significant impact or its determination 

that an environmental impact statement 

is necessary (42 U.S.C. 4336(b)(2) and 

40 CFR 1501.5, 1501.6, and 1508.1(h)). 

A categorical exclusion is a category of 

actions that the agency has determined, 

in its agency NEPA procedures, 

normally does not have a significant 

effect on the human environment and 

therefore does not require preparation of 

an environmental assessment or 

environmental impact statement (40 

CFR 1501.4, 1507.3(e)(2)(ii), and 

1508.1(d)). DOE’s procedures for 

applying categorical exclusions require 

the agency to consider whether 

extraordinary circumstances exist due to 

which a normally excluded action may 

have a significant environmental effect. 

A. Establishment and Use of Categorical 

Exclusions 

DOE establishes and revises 

categorical exclusions pursuant to a 

rulemaking, such as this one, for 

defined classes of actions that the 

Department determines are supported 

by a record showing that the actions 

normally do not have significant 

environmental impacts, individually or 

cumulatively. The rulemaking process 

provides the public with an opportunity 

to review and comment on DOE’s 

proposed changes. DOE will consider 

the comments received during the 

public comment period. 

Once established in DOE’s NEPA 

procedures, use of a categorical 

exclusion requires evaluation of a 

proposed action against several 

conditions. DOE must determine, in 

accordance with 10 CFR 1021.410(b), 

that: (1) the proposed action fits within 

a categorical exclusion listed in 

appendix A or B to subpart D of part 

1021; (2) there are no extraordinary 

circumstances 1 related to the proposal 

that may affect the significance of the 

environmental impacts of the proposed 

action and require preparation of an 

environmental assessment or 

environmental impact statement, 

consistent with 40 CFR 1501.4(b)(1) and 

(b)(2); and (3) the proposal has not been 

improperly segmented 2 to meet the 

definition of a categorical exclusion, 

there are no connected or related actions 

with cumulatively significant impacts, 

and the proposed action is not 

precluded by 40 CFR 1506.1 or 10 CFR 

1021.211 as an impermissible interim 

action. 

In addition, DOE evaluates whether 

the proposed action satisfies conditions 

included within the text of the 

individual categorical exclusion and the 

conditions known as ‘‘integral 

elements’’ that apply to all categorical 

exclusions listed in appendix B to 

subpart D of part 1021 (appendix B, 

paragraphs (1) through (5)). Together, 

these conditions limit the types of 

proposals that fit within a categorical 

exclusion and help ensure that adverse 

environmental impacts are avoided or 

reduced. These conditions are discussed 

generally in this section and also in 

section II of this document, which 

describes each of DOE’s proposed 

changes. 

The categorical exclusions discussed 

in this proposed rulemaking include 

conditions specific to the categorical 

exclusion. For example, the proposed 

action must follow applicable codes and 

best management practices. These codes 

and practices vary by technology and 

location (e.g., fire protection codes that 

differ by state). Also, they change over 

time to reflect lessons learned and to 

address emerging technology and 

practices. The Technical Support 

Document provides links to and 

summarizes information on some of the 

relevant codes and best practices for the 

categorical exclusions that are included 

in this proposed rulemaking. As another 

example, the changes proposed in this 

rulemaking specify conditions regarding 

siting proposed actions on previously 

disturbed or developed land and on 

land contiguous to previously disturbed 

and developed land. DOE defines 

previously disturbed or developed as 


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Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Proposed Rules 78683 

3This is a summary description of the integral 

elements. See 10 CFR part 1021, subpart D, 

appendix B for the full text. 

‘‘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-ofway, and other areas where active 

utilities and currently used roads are 

readily available.’’ (10 CFR 

1021.410(g)(1)) As DOE explained in a 

2011 notice of proposed rulemaking, ‘‘In 

DOE’s experience, the potential for 

certain types of actions to have 

significant impacts on the human 

environment is generally avoided when 

that action takes place within a 

previously disturbed or developed area, 

i.e., land that has been changed such 

that the former state of the area and its 

functioning ecological processes have 

been altered.’’ (76 FR 218; January 3, 

2011) DOE’s experience reviewing 

proposed projects across the United 

States since 2011 supports this same 

conclusion. DOE also has experience 

implementing categorical exclusions 

that allow construction on land that is 

contiguous to previously disturbed or 

developed areas and proposes to make 

certain siting on contiguous land part of 

one of the proposed categorical 

exclusions. The area of contiguous land 

affected would be small as discussed in 

10 CFR 1021.410(g)(2). Any proposed 

use of contiguous land is subject to 

review against all the conditions 

relevant to the categorical exclusion, 

including the integral elements that 

require consideration of effects on 

threatened species, historic properties, 

and other environmentally sensitive 

resources. The Technical Support 

Document includes summaries of 

environmental assessments for projects 

proposed on previously disturbed or 

developed land and on contiguous land. 

In addition to conditions within an 

individual categorical exclusion, the 

proposed action also must satisfy 

conditions known as ‘‘integral 

elements.’’ Integral elements are part of 

each categorical exclusion in appendix 

B. These conditions appear at the 

beginning of the appendix and are not 

repeated for each categorical exclusion. 

Integral elements require that, to fit 

within a categorical exclusion, the 

proposed action must not threaten a 

violation of applicable environment, 

safety, and health requirements; require 

siting and construction or major 

expansion of waste storage, disposal, 

recovery, or treatment facilities; disturb 

hazardous substances, pollutants, or 

contaminants that preexist in the 

environment such that there would be 

uncontrolled or unpermitted releases; 

have the potential to cause significant 

impacts on environmentally sensitive 

resources; or involve governmentally 

designated noxious weeds or invasive 

species, unless certain conditions are 

met.3 In appendix B, DOE defines 

‘‘environmentally sensitive resource’’ as 

a resource that has typically been 

identified as needing protection through 

Executive Order, statute, or regulation 

by Federal, state, or local government, 

or a federally recognized Indian tribe. 

Environmentally sensitive resources 

include historic properties, threatened 

and endangered species, floodplains, 

and wetlands, among others. (10 CFR 

part 1021, subpart D, appendix B) 

Only if DOE determines that all the 

applicable conditions have been met 

may it issue a categorical exclusion 

determination. DOE posts its categorical 

exclusion determinations at 

www.energy.gov/nepa/doe-categoricalexclusion-cx-determinations. 

B. Development of the Proposed 

Changes 

In this proposed rulemaking, DOE 

proposes to add a categorical exclusion 

for certain energy storage systems and 

revise categorical exclusions for 

upgrading and rebuilding transmission 

lines and for solar photovoltaic (PV) 

systems, as well as make conforming 

changes to related sections of DOE’s 

NEPA regulations. DOE last made 

changes to its categorical exclusions in 

these areas in 2011 (76 FR 63764; 

October 13, 2011). Since then, DOE has 

developed a better understanding of the 

potential environmental impacts of 

these types of actions through research, 

conducting environmental reviews, and 

engaging with industry, local 

communities, and other government 

agencies. The proposed changes are 

based on the experience of DOE and 

other Federal agencies, current 

technologies, regulatory requirements, 

and accepted industry practice. DOE 

consulted with CEQ during the 

development of these proposed changes. 

DOE has documented the technical 

substantiation for the proposed changes 

in this preamble and in an 

accompanying Technical Support 

Document. The Technical Support 

Document summarizes environmental 

assessments for the types of projects 

addressed in this proposed rulemaking 

and other information. The 

environmental assessments demonstrate 

how DOE and other Federal agencies 

evaluated potential environmental 

impacts of these projects and 

determined that they would not result 

in a significant environmental effect. To 

be clear, not every environmental 

assessment discussed in the Technical 

Support Document reflects a project that 

would have qualified for a categorical 

exclusion proposed in this rulemaking. 

Such determinations would have to be 

made on a case-by-case basis. 

DOE developed its support for this 

proposed rulemaking consistent with 

CEQ’s 2010 guidance on establishing, 

applying, and revising categorical 

exclusions under NEPA (75 FR 75628; 

December 6, 2010). DOE also considered 

climate impacts and greenhouse gas 

(GHG) emissions in preparing these 

proposals consistent with CEQ’s 2023 

interim guidance on the consideration 

of GHG emissions and climate change 

(88 FR 1196; January 9, 2023). The 

description of the proposed changes in 

section II of this document includes a 

discussion of how the proposed changes 

may affect GHG emissions. 

The public made suggestions for 

revising DOE’s categorical exclusions in 

response to a Request for Information 

(RFI) published in the Federal Register 

on November 15, 2022. (87 FR 68385). 

Those suggestions, along with others 

made by DOE’s NEPA Compliance 

Officers and other staff, led to the 

proposals included in this proposed 

rulemaking. DOE evaluated the 

proposals by reviewing environmental 

assessments prepared by DOE and by 

other Federal agencies, categorical 

exclusions established by other Federal 

agencies, technical reports, applicable 

requirements and industry practices, 

and other publicly available 

information. 

Thirty-three individuals or entities 

responded to the Request for 

Information. The Request for 

Information and these comments are 

available at www.regulations.gov/ 

docket/DOE-HQ-2023-0002/comments. 

Relevant to this proposed rulemaking, 

commenters asked DOE to add energy 

storage systems to its categorical 

exclusions, to expand the scope of its 

categorical exclusion for upgrading and 

rebuilding powerlines, and to expand its 

categorical exclusion for solar 

photovoltaic systems to at least 200 

acres within previously disturbed or 

developed areas. DOE addresses these 

and related comments in its discussion 

of proposed changes in section II.B of 

this document. The identification 

number for individual commenter 

documents used on 

www.regulations.gov and the page(s) 

where a particular comment appears are 


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4A transmission line rebuild is typically a 

replacement of conductor and equipment without 

increasing capacity. Transmission line design and 

new materials and equipment would meet current 

standards and electrical clearance requirements. A 

transmission line upgrade is typically a 

replacement of conductor and equipment, or the 

addition of sensors or other advanced technology, 

to increase the line’s capacity, such as by increasing 

the operating voltage or increasing the temperature 

rating. 

5 Grid Strategies, LLC, ‘‘Advanced Conductors on 

Existing Transmission Corridors to Accelerate Low 

Cost Decarbonization,’’ March 2022, available at: 

https://acore.org/wp-content/uploads/2022/03/ 

Advanced_Conductors_to_Accelerate_Grid_

Decarbonization.pdf. 

6See 10 CFR 1021.410(g)(2) for a discussion of 

‘‘small’’ in the context of determining the 

applicability of a DOE categorical exclusion. 

included in section II.B of this 

document. 

II. Description of Proposed Changes 

A. Overview 

DOE proposes to establish a new 

categorical exclusion for certain energy 

storage systems and to revise existing 

categorical exclusions for upgrading and 

rebuilding transmission lines and for 

solar photovoltaic systems. DOE’s 

proposal also includes conforming 

changes to other categorical exclusions, 

to a class of actions normally requiring 

an environmental assessment, and to a 

class of actions normally requiring an 

environmental impact statement (10 

CFR part 1021, subpart D, appendices B, 

C, and D). These proposed changes are 

discussed in sections II.B through II.D of 

this document. 

These proposed changes, if finalized, 

would not require any changes to or 

otherwise affect categorical exclusion 

determinations completed prior to the 

effective date of any final rule. 

B. Proposed Changes to Categorical 

Exclusion B4.13 for Upgrading and 

Rebuilding Existing Powerlines 

Powerlines are a critical component of 

the electric grid that moves electricity 

from facilities that generate electricity to 

our communities, businesses, and 

factories. Upgrading and rebuilding 4

powerlines extends their useful life. 

Upgrades and rebuilds can also help 

reduce the need for new powerlines and 

can allow the replacement of 

components with newer, more efficient 

and resilient technology. 

One example is reconductoring. 

Conductors are the wires that carry 

electricity. Most of the existing electric 

grid uses conductors with a steel core 

for strength surrounded by aluminum 

for the electrical current. More recently, 

conductor designs (called advanced 

conductors) with composite or carbon 

cores, in place of steel, have come into 

use. Advanced conductors provide a 

variety of benefits including increased 

capacity, which can be used to integrate 

renewable energy and other sources into 

the grid without the need to build new 

transmission lines. Use of advanced 

conductors reduces line losses (i.e., 

power lost during transmission and 

distribution of electricity) relative to 

traditional conductors, thereby 

improving efficiency.5 Improvements to 

capacity and efficiency can help to 

ensure reliability, reduce costs to 

consumers, and reduce GHG emissions 

associated with electricity generation, 

transmission, and distribution. 

Upgrading and rebuilding powerlines 

also can avoid or reduce adverse 

environmental impacts, such as by 

relocating small 6 segments of the 

existing line to avoid a sensitive 

environmental resource. Upgrading and 

rebuilding powerlines also can enhance 

resilience. For example, an upgrade or 

rebuild project might convert segments 

of existing overhead powerlines to 

underground lines or replace old 

transmission poles to ensure continued 

safe operations. 

Categorical exclusion B4.13 currently 

applies to upgrading or rebuilding 

‘‘approximately 20 miles in length or 

less’’ of existing powerlines and allows 

for minor relocations of small segments 

of powerlines. DOE proposes to remove 

the mileage limitation, add options for 

relocating within an existing right of 

way or within otherwise previously 

disturbed or developed lands, and add 

new conditions. 

The potential significance of 

environmental impacts from upgrading 

or rebuilding powerlines is more related 

to local environmental conditions than 

to the length of the powerlines. For 

example, the presence of 

environmentally sensitive resources 

along the existing right-of-way is more 

pertinent than the length of the existing 

powerlines to be upgraded or rebuilt. 

DOE reviewed environmental 

assessments for transmission line 

upgrades and rebuilds of various 

lengths. (See Technical Support 

Document, page 4.) The length of the 

projects is based on the endpoints, 

which are commonly substations (e.g., 

rebuild the transmission line from 

substation A to substation B). 

Environmental assessments and other 

information summarized in the 

Technical Support Document, as well as 

DOE’s experience with powerline 

upgrades and rebuilds do not indicate a 

particular mileage limit that would 

mark a threshold for significant impacts. 

DOE also proposes to clarify options 

for relocating powerlines within the 

scope of categorical exclusion B4.13. 

Relocating segments of a powerline can 

improve resilience, avoid sensitive 

resources, or serve other purposes. (See, 

in the Technical Support Document, 

page 6, DOE/EA–1912 for an example of 

relocation to avoid cultural resources 

and DOE/EA–1967 to avoid a rock fall 

and landslide area.) Currently, B4.13 

allows ‘‘minor relocations of small 

segments of the powerlines.’’ DOE 

proposes to delete ‘‘minor’’ because it is 

unnecessary to qualify ‘‘relocations of 

small segments’’ with ‘‘minor.’’ DOE 

also proposes to specify that, under the 

proposed revisions, small segments of 

powerlines may be relocated ‘‘within an 

existing right of way or within 

otherwise previously disturbed or 

developed lands.’’ This change would 

provide additional flexibility without 

increasing adverse environmental 

impacts. Any proposed relocation 

would be subject to all the conditions 

with the proposed categorical exclusion 

B4.13, including conformity to the 

integral elements that require 

consideration or potential impacts on 

environmentally sensitive resources and 

other potential impacts. 

DOE’s review of environmental 

assessments and other information in 

preparing this proposed rulemaking 

identified conditions that would be 

appropriate to add to categorical 

exclusion B4.13. Proposals to upgrade 

or rebuild powerlines normally 

incorporate practices that avoid or 

reduce potential land disturbance, 

erosion, disturbance of environmentally 

sensitive resources, and take other 

measures to protect the local 

environment. To account for this, DOE 

proposes to add a condition that the 

proposed project would be in 

accordance with applicable 

requirements and would incorporate 

appropriate design and construction 

standards, control technologies, and 

best management practices. This 

condition, together with the integral 

elements and consideration of 

extraordinary circumstances (described 

in section I.A of this document), would 

ensure that DOE considers whether a 

proposed upgrade or rebuild of an 

existing powerline would be sited and 

designed appropriately prior to 

determining whether categorical 

exclusion B4.13 applies. 

DOE proposes a conforming change to 

its class of action, C4, that normally 

requires an environmental assessment 

for upgrading and rebuilding existing 

powerlines more than approximately 20 

miles in length. That proposed change 

would remove the reference to 

powerline length and, instead, clarify 

that an environmental assessment 


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7The Request for Information and these 

comments are available at www.regulations.gov/ 

docket/DOE-HQ-2023-0002/comments. 

8The U.S. Energy Information Administration 

published information about large-scale energy 

storage for electricity generation (www.eia.gov/ 

energyexplained/electricity/energy-storage-forelectricity-generation.php) and market trends for 

battery storage (www.eia.gov/analysis/studies/ 

electricity/batterystorage/). Also, DOE published an 

energy storage market report in 2020 

(www.energy.gov/sites/prod/files/2020/12/f81/ 

Energy%20Storage%20Market%20

Report%202020_0.pdf). 

9On DOE sites and in other locations, land use 

planning may be documented in a site land use 

plan, or be subject to siting processes or other 

comparable systems. Use of land use and zoning 

requirements is inclusive of these processes. 

normally would be prepared when the 

proposal does not qualify for categorical 

exclusion B4.13. 

In response to DOE’s November 2022 

Request for Information,7 Edison 

Electric Institute (EEI) suggested that 

DOE increase the length of powerlines 

in categorical exclusion B4.13 to ‘‘at 

least 100 miles’’ within previously 

disturbed or developed rights-of-way. 

(EEI (RFI 0010), pages 7–8) EEI stated 

that, ‘‘Such [rights-of-way] are already 

managed from an environmental, safety, 

and reliability standpoint and thus, 

projects in these areas should not result 

in significant effects on the human 

environment.’’ (EEI (RFI 0010), page 8) 

EEI further stated that this change 

would ‘‘prioritize projects in existing 

[rights-of-way] over new greenfield 

projects’’ and that utilizing existing 

rights-of-way would ‘‘more efficiently 

build the transmission infrastructure 

necessary for the clean energy 

transformation.’’ (EEI (RFI 0010), page 8) 

The Cross-Cutting Issues Group 

suggested that DOE omit the 20-mile 

limitation in B4.13 and stated that, 

‘‘Projects in previously disturbed or 

developed [rights-of-way] will not 

significantly impact the human 

environment regardless of the length of 

the powerlines.’’ (Cross-Cutting Issues 

Group (RFI 0012), page 5) DOE’s 

proposed changes to categorical 

exclusion B4.13 are consistent with 

these comments. 

The Cross-Cutting Issues Group 

requested that DOE confirm that 

categorical exclusion B4.13 covers all 

types of powerlines, including ‘‘gen-tie 

lines’’ and ‘‘powerlines that feed into a 

federal electric transmission system 

(e.g., Tennessee Valley Authority)’’ and 

related project elements such as access 

roads. (Cross-Cutting Issues Group (RFI 

0012), pages 4–5) DOE interprets B4.13 

to encompass all types of powerlines, 

including those identified by the 

commenter. In regard to access roads 

and other project elements, DOE’s NEPA 

regulations explain, ‘‘A class of actions 

[e.g., a categorical exclusion] includes 

activities foreseeably necessary to 

proposals encompassed within the class 

of actions (such as award of 

implementing grants and contracts, site 

preparation, purchase and installation 

of equipment, and associated 

transportation activities).’’ (10 CFR 

1021.410(d)) 

C. Proposed New Categorical Exclusion 

B4.14 for Certain Energy Storage 

Systems 

For purposes of this proposed 

rulemaking, an energy storage system is 

a device or group of devices assembled 

together, capable of storing energy in 

order to supply electrical energy at a 

later time. Energy storage can be used to 

integrate renewable energy (such as 

wind and solar energy) into the electric 

grid, help generation facilities operate at 

optimal levels to meet customer 

demand, and reduce the use of less 

efficient generating units that would 

otherwise run only at peak times. An 

energy storage system also provides 

protection from power interruptions and 

serves as reserve power in case of power 

outages or fluctuations. The most 

familiar type of energy storage system is 

a group of electrochemical batteries and 

associated equipment referred to as a 

battery energy storage system. Another 

form uses a flywheel, which converts 

excess electricity from the grid to 

kinetic energy in a fast-spinning rotor. 

As needed, the stored energy is 

converted back to electricity and 

returned to the grid or put to other use. 

DOE and others have been developing 

large-scale energy storage systems for 

decades. Deployment of these systems 

has increased over the past decade. 

Today, energy storage systems support 

the operation of electric transmission 

facilities, microgrids, energy generation 

facilities, and commercial and industrial 

facilities.8

DOE proposes to establish new 

categorical exclusion B4.14 for the 

construction, operation, upgrade, or 

decommissioning of an electrochemicalbattery or flywheel energy storage 

system within a previously disturbed or 

developed area or within a small area 

contiguous to a previously disturbed or 

developed area. Section I.A of this 

document includes discussion of DOE’s 

definition of previously disturbed or 

developed area and DOE’s experience 

referring to contiguous areas in its 

categorical exclusions. The total acreage 

used for an energy storage system will 

be defined by the needs of the proposed 

project. Based on past experience, DOE 

anticipates that energy storage systems 

typically require 15 acres or less and 

would be sited close to energy, 

transmission, or industrial facilities. 

(See Technical Support Document, page 

24.) Consistent with this expectation 

and because contiguous land might be 

undisturbed and undeveloped, DOE 

proposes that siting outside a previously 

disturbed or developed be limited to a 

‘‘small’’ contiguous area. DOE would 

consider whether a contiguous area is 

small ‘‘in the context of the particular 

proposal, including its proposed 

location. In assessing whether a 

proposed action is small, in addition to 

the actual magnitude of the proposal, 

DOE considers factors such as industry 

norms, the relationship of the proposed 

action to similar types of development 

in the vicinity of the proposed action, 

and expected outputs of emissions or 

waste. When considering the physical 

size of a proposed facility, for example, 

DOE would review the surrounding 

land uses, the scale of the proposed 

facility relative to existing development, 

and the capacity of existing roads and 

other infrastructure to support the 

proposed action.’’ (10 CFR 

1021.410(g)(2)) In addition, the 

proposed categorical exclusion includes 

conditions that the proposed project be 

in accordance with applicable 

requirements (such as land use 9 and 

zoning requirements) and would 

incorporate appropriate design and 

construction standards, control 

technologies, and best management 

practices. In addition, DOE would 

review the proposed project against the 

criteria, including integral elements and 

extraordinary circumstances, described 

in section I.A of this document. This 

review would ensure that DOE 

considers the potential environmental 

effects of a proposed energy storage 

system prior to determining whether 

categorical exclusion B4.14 applies. In 

proposing this categorical exclusion, 

DOE has evaluated environmental 

assessments and findings of no 

significant impact prepared by DOE and 

other Federal agencies, categorical 

exclusion determinations made by DOE, 

and other information. (See Technical 

Support Document, page 24.) 

DOE also proposes conforming 

changes to three related categorical 

exclusions. Based on its past experience 

with energy storage systems, in 2011, 

DOE added ‘‘power storage (such as 

flywheels and batteries, generally less 

than 10 MW)’’ as an example of 

conservation actions to categorical 


lotter on DSK11XQN23PROD with PROPOSALS1
78686 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Proposed Rules 

10The Request for Information and these 

comments are available at www.regulations.gov/ 

docket/DOE-HQ-2023-0002/comments. 

11 DOE’s Solar Energy Technologies Office has a 

website that describes solar PV technologies 

(www.energy.gov/eere/solar/solar-photovoltaictechnology-basics). 

12U.S. Energy Information Administration ‘‘Solar 

explained’’ available at www.eia.gov/ 

energyexplained/solar/solar-energy-and-theenvironment.php; retrieved August 27, 2023. 

13U.S. Energy Information Administration ‘‘Solar 

explained’’ available at www.eia.gov/ 

energyexplained/solar/solar-energy-and-theenvironment.php; retrieved August 27, 2023. 

exclusion B5.1, Actions to conserve 

energy or water. DOE also added ‘‘load 

shaping projects (such as the 

installation and use of flywheels and 

battery arrays)’’ to the list of example 

actions in categorical exclusion B4.6, 

Additions and modifications to 

transmission facilities. DOE now 

proposes to delete ‘‘power storage’’ from 

the examples in B5.1. DOE would not 

include the 10 MW (megawatt) limit in 

new categorical exclusion B4.14 because 

capacity, whether denominated in 

megawatts as a measure of 

instantaneous output or megawatt-hours 

as a measure of the total amount of 

energy capable of being stored, is not a 

reliable indicator of potential 

environmental impacts. Including a 

capacity limit within the categorical 

exclusion could mean that technology 

improvements resulting in more power 

storage within the same physical 

footprint may not qualify for the 

categorical exclusion even though the 

potential environmental impacts have 

not changed. DOE also proposes to 

delete the example of flywheels and 

battery arrays from B4.6 but retain the 

reference to ‘‘load shaping projects’’ and 

add ‘‘reducing energy use during 

periods of peak demand’’ as a new 

example. DOE would add a note to B4.6 

that energy storage systems are 

addressed in B4.14. DOE also would 

add this note to categorical exclusion 

B4.4, Power marketing services and 

activities, which was established in 

1992 and lists storage and load shaping 

as examples. These conforming changes 

would avoid confusion over which 

categorical exclusion and associated 

conditions apply to energy storage 

systems. 

In response to DOE’s November 2022 

Request for Information,10 three 

commenters (Cross-Cutting Issues 

Group, Duke Energy, and EEI) requested 

that DOE include energy storage 

systems, and the installation and 

operation of such systems, in categorical 

exclusions B4.4 and B4.6. Cross-Cutting 

Issues Group explained that including 

energy storage systems explicitly in B4.4 

and B4.6 would ‘‘provide more 

certainty’’ as project proponents explore 

different types of energy storage system 

technologies (such as compressed air 

energy storage and molten salt storage), 

‘‘particularly the timing and costs 

associated with deploying such 

projects.’’ (Cross-Cutting Issues Group 

(RFI 0012), page 6) EEI and CrossCutting Issues Group asked DOE to 

explicitly include the addition or 

modification of a ‘‘battery array or other 

energy storage device(s)’’ as part of these 

categorical exclusions. (EEI (RFI 0010), 

pages 9–10; Cross-Cutting Issues Group 

(RFI 0012), page 6) 

DOE’s proposed changes address 

these comments. DOE believes that the 

best way to ensure consistency is to 

have a single categorical exclusion for 

energy storage systems. DOE is 

proposing that new categorical 

exclusion B4.14 be limited to 

electrochemical-battery and flywheel 

energy storage systems. At this time, 

DOE has not identified sufficient 

information to conclude that 

compressed air energy storage, thermal 

energy storage (e.g., molten salt storage), 

or other technologies normally do not 

present the potential for significant 

environmental impacts. DOE welcomes 

comments that provide analytic support 

for whether these other energy storage 

technologies meet the requirements for 

a categorical exclusion. If DOE identifies 

sufficient support, DOE may revise the 

categorical exclusion in the final rule to 

include additional energy storage 

technologies. 

D. Proposed Changes to Categorical 

Exclusion B5.16 for Solar Photovoltaic 

Systems 

Solar photovoltaic (PV) technology 

converts sunlight into electrical energy. 

Individual PV cells, which may produce 

only 1 or 2 watts of electricity, are 

connected together to form modules 

(otherwise known as panels). The 

modules are combined with other 

components (e.g., to convert electricity 

from direct current (DC) to alternating 

current (AC)) to create a solar PV 

system. These systems can be located in 

a wide variety of locations and sized for 

an individual home or business up to 

utility-scale, generating hundreds of 

megawatts.11

Solar PV systems do not release GHGs 

while operating, though, as with any 

industrial activity, manufacturing and 

installing solar PV systems can release 

GHGs. The U.S. Energy Information 

Administration reports that, ‘‘Studies 

conducted by a number of organizations 

and researchers have concluded that PV 

systems can produce the equivalent 

amount of energy that was used to 

manufacture the systems within 1 to 4 

years. Most PV systems have operating 

lives of up to 30 years or more.’’ 12 Thus, 

on a life-cycle basis, solar PV systems 

provide many years of electricity 

generation without GHG emissions. 

DOE’s current categorical exclusion 

B5.16, Solar photovoltaic systems, 

includes the installation, modification, 

operation, and removal of solar PV 

systems located on a building or other 

structure or, if located on land, within 

a previously disturbed or developed 

area generally comprising less than 10 

acres. DOE proposes to change 

‘‘removal’’ of a solar PV system to 

‘‘decommissioning.’’ Decommissioning 

encompasses recycling and other types 

of actions that occur when a facility is 

taken out of service. DOE also proposes 

to remove the acreage limitation for 

proposed projects. Based on DOE’s 

experience, acreage is not a reliable 

indicator of potential environmental 

impacts. As discussed in section I.B of 

this document, the potential 

significance of environmental impacts is 

more related to local environmental 

conditions than to acreage. DOE’s 

review of various environmental 

assessments indicate that an acreage 

limit would not serve as an appropriate 

indicator of significant impacts. This 

conclusion is illustrated, for example, 

by environmental assessments for solar 

PV projects larger than 1,000 acres on 

previously disturbed or developed land 

that would not result in significant 

environmental impacts. (See Technical 

Support Document, page 42.) 

The nature and significance of 

environmental impacts is determined by 

a proposed project’s proximity to and 

potential effects on environmentally 

sensitive resources and other conditions 

accounted for in categorical exclusion 

B5.16 and in the integral elements, 

extraordinary circumstances, and other 

factors described in section I.A of this 

document. If the proposed changes are 

finalized, DOE would consider the 

integral elements and the presence of 

any extraordinary circumstances when 

reviewing proposed solar PV projects’ 

eligibility for this categorical exclusion. 

This review would ensure that DOE 

considers potential environmental 

impacts of a proposed solar PV system 

prior to determining whether categorical 

exclusion B5.16 applies. For example, 

in preparing the Technical Support 

Document, DOE observed that some 

large solar PV systems have been 

proposed for agricultural land. While 

integrating solar PV systems with farms 

may provide a variety of economic and 

environmental benefits to farmers,13


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14The Request for Information and these 

comments are available at www.regulations.gov/ 

docket/DOE-HQ-2023-0002/comments. 

doing so also raises questions about 

land use and the protection of important 

farmlands. One of the integral elements 

ensures that DOE considers the 

potential impacts on prime or unique 

farmland, or other farmland of statewide 

or local importance. (10 CFR part 1021, 

appendix B, paragraph (4)(v).) 

DOE also proposes to make 

conforming changes in appendix C, 

Classes of Actions that Normally 

Require EAs but not Necessarily EISs, 

and in appendix D, Classes of Actions 

that Normally Require EISs. These 

appendices each include a class of 

actions, C7 and D7, that associates the 

level of NEPA review for 

interconnection requests and power 

acquisition with the power output of the 

electric generation resource. In 2011, 

DOE proposed for C7 that an 

environmental assessment normally 

would be required for the 

interconnection of, or acquisition of 

power from, new generation resources 

that are equal to or less than 50 average 

megawatts ‘‘and that would not be 

eligible for categorical exclusion under 

10 CFR part 1021.’’ (76 FR 233; January 

3, 2011) DOE did not receive public 

comment on the proposed addition 

regarding categorical exclusion 

eligibility. In the 2011 final rule, DOE 

did not include the condition regarding 

eligibility for a categorical exclusion. 

DOE explained this decision by stating 

‘‘to improve clarity, DOE is removing 

the previously proposed condition that 

the new generation resource ‘would not 

be eligible for categorical exclusion 

under this part.’ DOE normally would 

not prepare an environmental 

assessment when a categorical exclusion 

would apply. Therefore, the condition is 

unnecessary and potentially confusing.’’ 

(76 FR 63784; October 13, 2011) DOE’s 

practice continues to be that it 

‘‘normally would not prepare an 

environmental assessment when a 

categorical exclusion would apply.’’ 

DOE is again proposing to add a 

condition regarding the applicability of 

a categorical exclusion to C7, however. 

In light of the proposed change to 

B5.16—which would remove the 

acreage restriction for solar PV systems, 

thereby allowing the categorical 

exclusion to apply to systems generating 

up to hundreds of megawatts—DOE 

believes that including a condition in 

C7 is appropriate and helpful. It will 

clarify DOE’s practice that an 

environmental assessment is normally 

required ‘‘unless the generation resource 

is eligible for a categorical exclusion.’’ 

DOE did not propose a similar condition 

in 2011 for D7, which applies to new 

generation resources greater than 50 

average megawatts. DOE is now 

proposing to add the same condition to 

both C7 and D7 for the reasons 

previously described. For D7, DOE also 

is proposing to specify that an 

environmental impact statement is not 

required when an environmental 

assessment was prepared that resulted 

in a finding of no significant impact. 

This is standard practice, and DOE 

proposes to add this text only to avoid 

any potential confusion. 

In response to DOE’s November 2022 

Request for Information,14 EEI suggested 

that DOE revise categorical exclusion 

B5.16 to apply to ‘‘solar photovoltaic 

systems, both large- and small-scale, 

and increase the acreage to at least 200 

acres within previously disturbed or 

developed areas to fully capture the 

extent of large-scale solar installation 

that utilize more than 10 areas and may 

not be contiguous.’’ (EEI (RFI 0010), 

page 10) DOE’s proposal in this 

rulemaking is consistent with this 

comment. 

III. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Orders 

12866, 13563, and 14094 

Executive Order (‘‘E.O.’’) 12866, 

‘‘Regulatory Planning and Review,’’ as 

supplemented and reaffirmed by E.O. 

13563, ‘‘Improving Regulation and 

Regulatory Review,’’ 76 FR 3821 (Jan. 

21, 2011) and amended by E.O. 14094, 

‘‘Modernizing Regulatory Review,’’ 88 

FR 21879 (April 11, 2023), requires 

agencies, to the extent permitted by law, 

to (1) propose or adopt a regulation only 

upon a reasoned determination that its 

benefits justify its costs (recognizing 

that some benefits and costs are difficult 

to quantify); (2) tailor regulations to 

impose the least burden on society, 

consistent with obtaining regulatory 

objectives, taking into account, among 

other things, and to the extent 

practicable, the costs of cumulative 

regulations; (3) select, in choosing 

among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) to the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. DOE emphasizes as 

well that E.O. 13563 requires agencies to 

use the best available techniques to 

quantify anticipated present and future 

benefits and costs as accurately as 

possible. In its guidance, the Office of 

Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget (OMB) has emphasized that such 

techniques may include identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes. Many benefits and costs 

associated with this proposed rule are 

not quantifiable. The direct benefits 

include reduced cost and time for 

environmental analysis incurred by 

DOE, project proponents, and the 

public. Indirect benefits are expected to 

include deployment of technologies that 

improve the reliability and resilience of 

the nation’s electric grid and that 

expand electricity generation capacity 

while reducing emissions of GHGs. For 

the reasons stated in this preamble, this 

proposed regulatory action is consistent 

with these principles. 

This regulatory action has been 

determined not to be ‘‘a significant 

regulatory action’’ under E.O. 12866, 

‘‘Regulatory Planning and Review,’’ 58 

FR 51735 (October 4, 1993). 

Accordingly, this action is not subject to 

review under that Executive order by 

OIRA of OMB. 

B. Review Under Executive Orders 

12898 and 14096 

E.O. 12898, ‘‘Federal Actions To 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations,’’ as supplemented and 

amended by E.O. 14096, ‘‘Revitalizing 

Our Nation’s Commitment to 

Environmental Justice for All,’’ requires 

each Federal agency, consistent with its 

statutory authority, to make achieving 

environmental justice part of its 

mission. E.O. 14096 directs Federal 

agencies to carry out environmental 

reviews under NEPA in a manner that 

‘‘(A) analyzes direct, indirect, and 

cumulative effects of Federal actions on 

communities with environmental justice 

concerns; (B) considers best available 

science and information on any 

disparate health effects (including risks) 

arising from exposure to pollution and 

other environmental hazards, such as 

information related to the race, national 

origin, socioeconomic status, age, 

disability, and sex of the individuals 

exposed; and (C) provides opportunities 

for early and meaningful involvement in 

the environmental review process by 


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15 GAO–14–369, NATIONAL ENVIRONMENTAL 

POLICY ACT: Little Information Exists on NEPA 

Analyses, April 2014, available at www.gao.gov/ 

assets/gao-14-369.pdf. 

16 76 FR 237, January 3, 2011. 

communities with environmental justice 

concerns potentially affected by a 

proposed action, including when 

establishing or revising agency 

procedures under NEPA.’’ DOE is 

providing opportunities for public 

engagement in this proposed 

rulemaking, including opportunities for 

communities with environmental justice 

concerns. Also, in determining whether 

the proposed categorical exclusions 

apply to a future proposed action, DOE 

will consider whether the proposed 

action threatens a violation of these 

Executive Orders, consistent with the 

first integral element listed in appendix 

B of DOE’s NEPA procedures. 

C. Review Under National 

Environmental Policy Act 

The Department’s NEPA procedures 

assist the Department in fulfilling its 

responsibilities under NEPA and the 

CEQ regulations but are not themselves 

final determinations of the level of 

environmental review required for any 

proposed action. The CEQ regulations 

do not direct agencies to prepare an 

environmental assessment or 

environmental impact statement before 

establishing agency procedures that 

supplement the CEQ regulations to 

implement NEPA (40 CFR 1507.3). In 

establishing a new categorical exclusion 

and making other changes as described 

in this notice, DOE is following the 

requirements of CEQ’s procedural 

regulations, which include publishing 

the Notice of Proposed Rulemaking in 

the Federal Register for public review 

and comment, considering public 

comments, and consulting with CEQ 

regarding conformity with NEPA and 

the CEQ regulations. (See 40 CFR 

1507.3(b)). 

In this proposed rule, DOE proposes 

amendments that establish, modify, and 

clarify procedures for considering the 

environmental effects of DOE actions 

within DOE’s decisionmaking process, 

thereby enhancing compliance with the 

letter and spirit of NEPA. DOE has 

preliminarily determined that this 

proposed rule would qualify for 

categorical exclusion under 10 CFR part 

1021, subpart D, appendix A6, because 

it is a strictly procedural rulemaking, 

and no extraordinary circumstances 

exist that require further environmental 

analysis. Therefore, DOE has 

preliminarily determined that 

promulgation of these amendments is 

not a major Federal action significantly 

affecting the quality of the human 

environment within the meaning of 

NEPA, and does not require an 

environmental assessment or an 

environmental impact statement. 

D. Review Under Regulatory Flexibility 

Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis for any rule that by law must 

be proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. As required by 

E.O. 13272, ‘‘Proper Consideration of 

Small Entities in Agency Rulemaking,’’ 

67 FR 53461 (Aug. 16, 2002), DOE 

published procedures and policies on 

February 19, 2003, to ensure that the 

potential impacts of its rules on small 

entities are properly considered during 

the rulemaking process (68 FR 7990). 

DOE has made its procedures and 

policies available on the Office of the 

General Counsel’s website: https://

energy.gov/gc under Resources. 

DOE has reviewed this proposed rule 

under the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. The proposed revisions to 10 CFR 

part 1021 streamline the environmental 

review for proposed actions, resulting in 

a decrease in burdens associated with 

carrying out such reviews. For example, 

the proposed revisions to DOE’s 

categorical exclusions are expected to 

reduce the number of environmental 

assessments that applicants would need 

to pay to have prepared for DOE’s 

consideration. Applicants may 

sometimes incur costs in providing 

environmental information that DOE 

requires when making a categorical 

exclusion determination. The 

Government Accountability Office 

found in 2014 that there is little data 

available on the costs for preparing 

NEPA reviews and that agencies 

‘‘generally do not reports costs that are 

‘paid by the applicant’ because these 

costs reflect business transactions 

between applicants and their 

contractors and are not available to 

agency officials.’’ 15 In 2011, DOE 

estimated the cost of preparing 

environmental assessments over the 

prior decade at an average of $100,000 

and a median of $65,000.16 DOE does 

not have more current cost data. The 

costs of making a categorical exclusion 

determination are less than those to 

prepare an EA. Although DOE does not 

have data on what percentage of EAs 

were funded by applicants that qualified 

as small entities, a beneficial cost 

impact is expected to accrue to entities 

of all sizes. 

Based on the foregoing, DOE certifies 

that this proposed rule, if adopted, 

would not have a significant economic 

impact on a substantial number of small 

entities. Accordingly, DOE has not 

prepared a regulatory flexibility analysis 

for this proposed rulemaking. DOE’s 

certification and supporting statement 

of factual basis will be provided to the 

Chief Counsel for Advocacy of the Small 

Business Administration pursuant to 5 

U.S.C. 605(b). 

E. Review Under Paperwork Reduction 

Act 

This proposed rulemaking will 

impose no new information or recordkeeping requirements. Accordingly, 

OMB clearance is not required under 

the Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) and the procedures 

implementing that Act, 5 CFR 1320.1 et 

seq. 

F. Review Under Unfunded Mandates 

Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act (UMRA) of 1995 (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on state, local, and tribal 

governments, in the aggregate, or to the 

private sector, other than to the extent 

such actions merely incorporate 

requirements specifically set forth in a 

statute. Section 202 of UMRA requires 

a Federal agency to perform a detailed 

assessment of the anticipated costs and 

benefits of any rule that includes a 

Federal mandate which may result in 

costs to State, local, or Tribal 

governments, or to the private sector, of 

$100 million or more in any one year 

(adjusted annually for inflation) (2 

U.S.C. 1532(a) and (b)). Section 204 of 

UMRA requires each agency that 

proposes a rule containing a significant 

Federal intergovernmental mandate to 

develop an effective process for 

obtaining meaningful and timely input 

from elected officers of State, local, and 

Tribal governments (2 U.S.C. 1534). 

The proposed rule would amend 

DOE’s existing regulations governing 

compliance with NEPA to better align 

DOE’s regulations, including its 

categorical exclusions, with its current 

activities and recent experiences. The 

proposed rule would not result in the 

expenditure by State, local, and Tribal 

governments in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. Accordingly, no 

assessment or analysis is required under 

the UMRA. 


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G. Review Under Treasury and General 

Government Appropriations Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

proposed rule that may affect family 

well-being. The proposed rule would 

not have any impact on the autonomy 

or integrity of the family as an 

institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

H. Review Under Executive Order 13132 

E.O. 13132, ‘‘Federalism,’’ 64 FR 

43255 (Aug. 4, 1999), imposes certain 

requirements on agencies formulating 

and implementing policies or 

regulations that preempt state law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the states 

and carefully assess the necessity for 

such actions. DOE has examined this 

proposed rule and has determined that 

it would not preempt state law and 

would not have a substantial direct 

effect on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government. No further 

action is required by E.O. 13132. 

I. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of E.O. 

12988, ‘‘Civil Justice Reform,’’ 61 FR 

4729 (Feb. 7, 1996), imposes on 

Executive agencies the general duty to 

adhere to the following requirements: 

(1) eliminate drafting errors and 

ambiguity; (2) write regulations to 

minimize litigation; and (3) provide a 

clear legal standard for affected conduct 

rather than a general standard and 

promote simplification and burden 

reduction. With regard to the review 

required by section 3(a), section 3(b) of 

E.O. 12988 specifically requires that 

Executive agencies make every 

reasonable effort to ensure that the 

regulation: (1) clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of E.O. 12988 

requires Executive agencies to review 

regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met, 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, the 

proposed rule meets the relevant 

standards of E.O. 12988. 

J. Review Under Treasury and General 

Government Appropriations Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516 note) provides for 

agencies to review most disseminations 

of information to the public under 

information quality guidelines 

established by each agency pursuant to 

general guidelines issued by OMB. 

OMB’s guidelines were published at 

67 FR 8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

this proposed rule under the OMB and 

DOE guidelines and has concluded that 

it is consistent with applicable policies 

in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OMB a Statement 

of Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgated or is 

expected to lead to promulgation of a 

final rule, and that: (1)(i) is a significant 

regulatory action under E.O. 12866, or 

any successor order, and (ii) is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy; or 

(2) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This regulatory action would not have a 

significant adverse effect on the supply, 

distribution, or use of energy, and is 

therefore not a significant energy action. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

L. Review Under Executive Order 12630 

DOE has determined pursuant to E.O. 

12630, ‘‘Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(Mar. 18, 1988), that this proposed rule 

would not result in any takings that 

might require compensation under the 

Fifth Amendment to the United States 

Constitution. 

IV. Public Participation—Submission of 

Comments 

DOE will accept comments, data, and 

information regarding this notice of 

proposed rulemaking no later than the 

date provided in the DATES section at the 

beginning of this document. Interested 

individuals are invited to submit data, 

views, or arguments with respect to the 

specific sections addressed in this 

proposed rule using the methods 

described in the ADDRESSES section at 

the beginning of this document. 

1. Submitting comments via 

www.regulations.gov. Your contact 

information will be viewable by DOE’s 

Office of the General Counsel staff only. 

Your contact information will not be 

publicly viewable except for your first 

and last names, organization name (if 

any), and submitter representative name 

(if any). If your comment is not 

processed properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information will 

be publicly viewable if you include it in 

the comment itself or in any documents 

attached to your comment. Any 

information that you do not want to be 

publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Persons viewing comments will see only 

first and last names, organization 

names, correspondence containing 

comments, and any documents 

submitted with the comments. 

Do not submit to www.regulations.gov 

information for which disclosure is 

restricted by statute, such as trade 

secrets and commercial or financial 

information (hereinafter referred to as 

Confidential Business Information 

(CBI)). Comments submitted through 

www.regulations.gov cannot be claimed 

as CBI. Comments received through 

www.regulations.gov will waive any CBI 

claims for the information submitted. 

For information on submitting CBI, see 

the Confidential Business Information 

section. 


lotter on DSK11XQN23PROD with PROPOSALS1
78690 Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Proposed Rules 

DOE processes submissions made 

through www.regulations.gov before 

posting. Normally, comments will be 

posted within a few days of being 

submitted. However, if large volumes of 

comments are being processed 

simultaneously, your comment may not 

be viewable for up to several weeks. 

Please keep the comment tracking 

number that www.regulations.gov 

provides after you have successfully 

uploaded your comment. 

2. Submitting comments via email or 

mail. Comments and documents 

submitted via email or mail will also be 

posted to www.regulations.gov. If you 

do not want your personal contact 

information to be publicly viewable, do 

not include it in your comment or any 

accompanying documents. Instead, 

provide your contact information in a 

cover letter. Include your first and last 

names, email address, telephone 

number, and optional mailing address. 

The cover letter will not be publicly 

viewable as long as it does not include 

any comments. 

Comments, data, and other 

information submitted to DOE 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format. Provide documents that are not 

secured, that are written in English, and 

that are free of any defects or viruses. 

Documents should not contain special 

characters or any form of encryption 

and, if possible, they should carry the 

electronic signature of the author. 

3. Confidential Business Information. 

Pursuant to the provisions of 10 CFR 

1004.11, any person submitting 

information or data he or she believes to 

be confidential and exempt by law from 

public disclosure should submit two 

well-marked copies: One copy of the 

document marked ‘‘CONFIDENTIAL’’ 

including all the information believed to 

be confidential, and one copy of the 

document marked ‘‘NONCONFIDENTIAL’’ with the information 

believed to be confidential deleted. 

Submit these documents via email to 

DOE-NEPA-Rulemaking@hq.doe.gov. 

DOE will make its own determination 

about the confidential status of the 

information and treat it according to its 

determination. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

4. Campaign form letters. Please 

submit campaign form letters by the 

originating organization in batches of 

between 50 to 500 form letters per PDF 

or as one form letter with a list of 

supporters’ names compiled into one or 

more PDFs. This reduces comment 

processing and posting time. 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this notice of proposed 

rulemaking and request for comment. 

List of Subjects in 10 CFR Part 1021 

Environmental impact statements. 

Signing Authority 

This document of the Department of 

Energy was signed on November 8, 

2023, by Samuel T. Walsh, General 

Counsel, pursuant to delegated 

authority from the Secretary of Energy. 

That document with the original 

signature and date is maintained by 

DOE. For administrative purposes only, 

and in compliance with requirements of 

the Office of the Federal Register, the 

undersigned DOE Federal Register 

Liaison Officer has been authorized to 

sign and submit the document in 

electronic format for publication, as an 

official document of the Department of 

Energy. This administrative process in 

no way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Signed in Washington, DC, on November 9, 

2023. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE proposes to amend part 

1021 of chapter X of title 10, Code of 

Federal Regulations, as set forth below: 

PART 1021—NATIONAL 

ENVIRONMENTAL POLICY ACT 

IMPLEMENTING PROCEDURES 

■ 1. The authority citation for part 1021 

continues to read as follows: 

Authority: 42 U.S.C. 7101 et seq.; 42 

U.S.C. 4321 et seq.; 50 U.S.C. et seq. 

■ 2. Appendix B of subpart D of part 

1021 is amended by: 

■ a. Revising B4.4, B4.6, and B4.13; 

■ b. Adding B4.14; and 

■ c. Revising B5.1 and B5.16. 

The revisions and addition read as 

follows: 

Appendix B to Subpart D of Part 1021— 

Categorical Exclusions Applicable to 

Specific Agency Actions 

* * * * * 

B4. * * * 

* * * * * 

B4.4 Power marketing services and 

activities 

Power marketing services and power 

management activities (including, but not 

limited to, storage, load shaping and 

balancing, seasonal exchanges, and other 

similar activities), provided that the 

operations of generating projects would 

remain within normal operating limits. (See 

B4.14 of this appendix for energy storage 

systems.) 

* * * * * 

.6 Additions and modifications to 

transmission facilities 

Additions or modifications to electric 

power transmission facilities within a 

previously disturbed or developed facility 

area. Covered activities include, but are not 

limited to, switchyard rock grounding 

upgrades, secondary containment projects, 

paving projects, seismic upgrading, tower 

modifications, load shaping projects (such as 

reducing energy use during periods of peak 

demand), changing insulators, and 

replacement of poles, circuit breakers, 

conductors, transformers, and crossarms. 

(See B4.14 of this appendix for energy storage 

systems.) 

* * * * * 

B4.13 Upgrading and rebuilding existing 

powerlines 

Upgrading or rebuilding existing electric 

powerlines, which may involve relocations of 

small (as discussed at 10 CFR 1021.410(g)(2)) 

segments of the powerlines within an 

existing right of way or within otherwise 

previously disturbed or developed lands (as 

discussed at 10 CFR 1021.410(g)(1)). Covered 

actions would be in accordance with 

applicable requirements, including the 

integral elements listed at the start of 

appendix B of this part; and would 

incorporate appropriate design and 

construction standards, control technologies, 

and best management practices. 

B4.14 Construction and operation of 

electrochemical-battery or flywheel energy 

storage systems 

Construction, operation, upgrade, or 

decommissioning of an electrochemicalbattery or flywheel energy storage system 

within a previously disturbed or developed 

area or within a small (as discussed at 10 

CFR 1021.410(g)(2)) area contiguous to a 

previously disturbed or developed area. 

Covered actions would be in accordance with 

applicable requirements (such as land use 

and zoning requirements) in the proposed 

project area and the integral elements listed 

at the start of appendix B of this part, and 

would incorporate appropriate design and 

construction standards, control technologies, 

and best management practices. 

* * * * * 

B5. * * * 

B5.1 Actions to conserve energy or water 

(a) Actions to conserve energy or water, 

demonstrate potential energy or water 

conservation, and promote energy efficiency 

that would not have the potential to cause 

significant changes in the indoor or outdoor 


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Federal Register / Vol. 88, No. 220 / Thursday, November 16, 2023 / Proposed Rules 78691 

concentrations of potentially harmful 

substances. These actions may involve 

financial and technical assistance to 

individuals (such as builders, owners, 

consultants, manufacturers, and designers), 

organizations (such as utilities), and 

governments (such as state, local, and tribal). 

Covered actions include, but are not limited 

to weatherization (such as insulation and 

replacing windows and doors); programmed 

lowering of thermostat settings; placement of 

timers on hot water heaters; installation or 

replacement of energy efficient lighting, lowflow plumbing fixtures (such as faucets, 

toilets, and showerheads), heating, 

ventilation, and air conditioning systems, 

and appliances; installation of drip-irrigation 

systems; improvements in generator 

efficiency and appliance efficiency ratings; 

efficiency improvements for vehicles and 

transportation (such as fleet changeout); 

transportation management systems (such as 

traffic signal control systems, car navigation, 

speed cameras, and automatic plate number 

recognition); development of energy-efficient 

manufacturing, industrial, or building 

practices; and small-scale energy efficiency 

and conservation research and development 

and small-scale pilot projects. Covered 

actions include building renovations or new 

structures, provided that they occur in a 

previously disturbed or developed area. 

Covered actions could involve commercial, 

residential, agricultural, academic, 

institutional, or industrial sectors. Covered 

actions do not include rulemakings, 

standard-settings, or proposed DOE 

legislation, except for those actions listed in 

B5.1(b) and (c) of this appendix. 

(b) Covered actions include rulemakings 

that establish energy conservation standards 

for consumer products and industrial 

equipment, provided that the actions would 

not: 

(1) Have the potential to cause a significant 

change in manufacturing infrastructure (such 

as construction of new manufacturing plants 

with considerable associated ground 

disturbance); 

(2) Involve significant unresolved conflicts 

concerning alternative uses of available 

resources (such as rare or limited raw 

materials); 

(3) Have the potential to result in a 

significant increase in the disposal of 

materials posing significant risks to human 

health and the environment (such as RCRA 

hazardous wastes); or 

(4) Have the potential to cause a significant 

increase in energy consumption in a state or 

region. 

(c) Covered actions also include 

rulemakings that establish energy 

conservation standards for new Federal 

buildings and Federal buildings undergoing 

major renovation, provided that the actions 

would not have the potential to: 

(1) Result in a significant decrease in 

indoor air quality; or 

(2) Result in a significant increase in 

emissions of air pollutants. 

* * * * * 

B5.16 Solar photovoltaic systems 

(a) The installation, modification, 

operation, or decommissioning of 

commercially available solar photovoltaic 

systems: 

(1) Located on a building or other structure 

(such as rooftop, parking lot or facility, or 

mounted to signage, lighting, gates, or 

fences); or 

(2) Located within a previously disturbed 

or developed area. 

(b) Covered actions would be in 

accordance with applicable requirements 

(such as land use and zoning requirements) 

in the proposed project area and the integral 

elements listed at the start of appendix B of 

this part, and would incorporate appropriate 

control technologies and best management 

practices. 

■ 3. Amend Appendix C of subpart D of 

part 1021 by revising C4 and C7 to read 

as follows: 

C to Subpart D of Part 1021—Classes of 

Actions That Normally Require EAs But 

Not Necessarily EISs 

* * * * * 

C4 Upgrading, Rebuilding, or Construction 

of Powerlines 

(a) Upgrading or rebuilding existing 

powerlines when the action does not qualify 

for categorical exclusion B4.13; or 

construction of powerlines: 

(1) More than approximately 10 miles in 

length outside previously disturbed or 

developed powerline or pipeline rights-ofway; or 

(2) More than approximately 20 miles in 

length within previously disturbed or 

developed powerline or pipeline rights-ofway. 

* * * * * 

C7 Contracts, Policies, and Marketing and 

Allocation Plans for Electric Power 

(a) Establishment and implementation of 

contracts, policies, and marketing and 

allocation plans related to electric power 

acquisition that involve: 

(1) The interconnection of, or acquisition 

of power from, new generation resources that 

are equal to or less than 50 average 

megawatts, unless the generation resource is 

eligible for a categorical exclusion; 

(2) Changes in the normal operating limits 

of generation resources equal to or less than 

50 average megawatts; or 

(3) Service to discrete new loads of less 

than 10 average megawatts over a 12-month 

period. 

* * * * * 

■ 4. Amend Appendix D to subpart D of 

part 1021 by revising D7 to read as 

follows: 

Appendix D to Subpart D of Part 1021— 

Classes of Actions That Normally 

Require EISs 

* * * * * 

D7 Contracts, Policies, and Marketing and 

Allocation Plans for Electric Power 

(a) Establishment and implementation of 

contracts, policies, and marketing and 

allocation plans related to electric power 

acquisition that involve: 

(1) The interconnection of, or acquisition 

of power from, new generation resources 

greater than 50 average megawatts, unless the 

generation resource is eligible for a 

categorical exclusion or was evaluated in an 

environmental assessment resulting in a 

finding of no significant impact; 

(2) Changes in the normal operating limits 

of generation resources greater than 50 

average megawatts; or 

(3) Service to discrete new loads of 10 

average megawatts or more over a 12-month 

period. 

* * * * * 

[FR Doc. 2023–25174 Filed 11–15–23; 8:45 am] 

BILLING CODE 6450–01–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 210 

[Docket No. 2022–5] 

Termination Rights, Royalty 

Distributions, Ownership Transfers, 

Disputes, and the Music Modernization 

Act 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Supplemental notice of 

proposed rulemaking; extension of 

comment period. 

SUMMARY: The U.S. Copyright Office is 

extending the deadline to submit reply 

comments in connection with a 

supplemental notice of proposed 

rulemaking regarding the applicability 

of the derivative works exception to 

termination rights under the Copyright 

Act to the new statutory mechanical 

blanket license established by the Music 

Modernization Act and other matters 

relevant to identifying the proper payee 

to whom the mechanical licensing 

collective must distribute royalties. 

DATES: The comment period for the 

proposed rule published September 26, 

2023, at 88 FR 65908, is extended. 

Written reply comments are due no later 

than 11:59 p.m. Eastern Time on 

Tuesday, December 5, 2023. 

ADDRESSES: For reasons of governmental 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office’s website at https://

copyright.gov/rulemaking/mmatermination. If electronic submission of 

comments is not feasible due to lack of 

access to a computer or the internet, 


lotter on DSK11XQN23PROD with PROPOSALS1