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[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Notices]
[Pages 99834-99839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29088]

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DEPARTMENT OF COMMERCE

National Environmental Policy Act; Proposed Implementing 
Procedures and Categorical Exclusions

AGENCY: National Institute of Standards and Technology, Department of 
Commerce.

ACTION: Notice; request for comments.

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SUMMARY: Federal agencies are required to develop procedures to 
implement the National Environmental Policy Act (NEPA) and the Council 
on Environmental Quality (CEQ) regulations implementing NEPA. 
Consistent with these requirements, the National Institute of Standards 
and Technology (NIST) is proposing new NEPA implementing procedures 
(NEPA Procedures), including the establishment of new categorical 
exclusions (CEs) as part of its NEPA Procedures. CEs are categories of 
actions that an agency has determined normally do not have a 
significant effect on the human environment, individually or in the 
aggregate. CEs are a form of review that agencies use to comply with 
NEPA for proposed actions that normally have no or minimal 
environmental effects. NIST requests the views of the public on its 
draft NEPA Procedures as well as its substantiation record for the 
proposed CEs.

DATES: Submit written comments on or before January 10, 2025.

ADDRESSES: The draft NEPA Procedures and CE substantiation record are 
available for review at https://www.nist.gov/chips/national-environmental-policy-act-nepa. Submit all electronic public comments 
via email to [email protected] citing ``NEPA Procedures'' in the 
subject line. NIST will accept comments in attached Word or PDF formats 
or within the body of the email.
    Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered by NIST. All comments received are a part of the public 
record; commenters should not include personal identifying information 
(e.g., name, address, etc.), confidential business information, or 
otherwise sensitive information. NIST will accept anonymous comments. 
The most helpful comments include a specific recommendation, explain 
the reason for any recommended change, and provide supporting 
information. NIST will consider all relevant comments received on or 
before the closing date.

FOR FURTHER INFORMATION CONTACT: David Frenkel, NIST, telephone number 
240-204-1960, email [email protected].

SUPPLEMENTARY INFORMATION:

Legal Framework

    The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et 
seq., requires Federal agencies to consider the environmental effects 
of their proposed actions in their decision-making processes and inform 
and engage the public in that process. Section 101(a) of NEPA sets 
forth a national policy to use all practicable means and measures, 
including financial and technical assistance, in a manner calculated to 
foster and promote the general welfare, to create and maintain 
conditions under which humans and nature can exist in productive 
harmony, and fulfill the social, economic, and other requirements of 
present and future generations of Americans. 42 U.S.C. 4331(a). Section 
102 of NEPA directs agencies to interpret and administer Federal 
policies, regulations and laws consistent with NEPA's policies. 42 
U.S.C. 4332.
    NEPA also created the Council on Environmental Quality (CEQ), which 
has issued regulations implementing NEPA, 40 CFR parts 1500 through 
1508 (CEQ regulations). CEQ also has issued numerous guidance documents 
to facilitate agency implementation of NEPA. See CEQ, CEQ Guidance 
Documents, https://ceq.doe.gov/guidance/guidance.html.
    To comply with NEPA, agencies determine the appropriate level of 
review of any major Federal action--an environmental impact statement 
(EIS), environmental assessment (EA), or categorical exclusion (CE). 40 
CFR 1501.3. If a proposed action is likely to have significant 
environmental effects, the agency must prepare an EIS and document its 
decision in a record of decision. 40 CFR 1501.3(c)(3), part 1502, 
1505.2. If the proposed action is not likely to have significant 
environmental effects or the effects are unknown, the agency may 
instead prepare an EA, which is a concise public document used to 
support agency decision making. 40 CFR 1501.3(c)(2), 1501.5, 1508.1(j). 
After completing the analysis in the EA, the agency may conclude that 
the action will have no significant effects and document that 
conclusion in a finding of no significant impact, or conclude that the 
action is likely to have significant effects and therefore requires 
preparation of an EIS. 40 CFR 1501.6(a), 1508.1(j).
    Under NEPA and the CEQ regulations, a Federal agency may establish 
CEs-- categories of actions that the agency has determined normally do 
not have a significant effect on the human environment, individually or 
in the aggregate--in its agency NEPA procedures. 42 U.S.C. 4336(e)(1); 
40 CFR 1501.4(a), 1507.3(c)(8), 1508.1(e). If an agency determines that 
a CE established in its agency NEPA procedures covers a proposed 
action, it then evaluates the proposed action for

[[Page 99835]]

extraordinary circumstances, which are factors or circumstances that 
indicate a normally categorically excluded action may have a 
significant effect. 40 CFR 1501.4(b), 1508.1(o). If an extraordinary 
circumstance exists, the agency nevertheless may apply the CE if it 
conducts an analysis and determines that the proposed action does not 
in fact have the potential to result in significant effects 
notwithstanding the extraordinary circumstance, or the agency modifies 
the action to avoid the potential to result in significant effects. 40 
CFR 1501.4(b)(1). In these cases, the agency must document such 
determination. Id. If the agency cannot categorically exclude the 
proposed action, it will prepare an EA or EIS, as appropriate. 40 CFR 
1501.4(b)(2).
    On May 1, 2024, CEQ finalized its ``Bipartisan Permitting Reform 
Implementation Rule'' to revise its regulations for implementing the 
procedural provisions of NEPA, including the amendments to NEPA in the 
Fiscal Responsibility Act. Under the revised regulations, each Federal 
agency must, by July 1, 2025, develop procedures to implement NEPA and 
the CEQ regulations, facilitate efficient decision making, and ensure 
that the agencies make decisions in accordance with the policies and 
requirements of NEPA. 40 CFR 1507.3. As part of their procedures, 
agencies must establish CEs and identify extraordinary circumstances. 
40 CFR 1507.3(c)(8). When establishing new or revising existing CEs in 
agency NEPA procedures, agencies must substantiate the proposed new or 
revised CEs with sufficient information to conclude that each category 
of actions does not have a significant effect, individually or in the 
aggregate, on the human environment, and provide this substantiation in 
a written record that is made publicly available as part of the notice 
and comment process for developing or revising proposed agency 
procedures. See 40 CFR 1507.3(b), (c)(8). In developing NEPA 
procedures, agencies must consult with CEQ and provide an opportunity 
for public review. 40 CFR 1507.3(b)(1), (2). Before publishing final 
procedures, agencies must receive a determination from CEQ that the 
procedures conform with NEPA and the CEQ regulations. See 40 CFR 
1507.3(b)(2).

Background

    Founded in 1901, NIST's mission is to promote U.S. innovation and 
industrial competitiveness by advancing measurement science, standards, 
and technology in ways that enhance economic security and improve our 
quality of life. Historically, NIST has carried out this mission 
through operation of the NIST Laboratories, which conduct world-class 
research, often in close collaboration with industry, that advances the 
nation's technology infrastructure and helps U.S. companies continually 
improve products and services.
    In August 2022, Congress passed the CHIPS Act of 2022, which 
amended title XCIX of the William M. (Mac) Thornberry National Defense 
Authorization Act for Fiscal Year 2021, 15 U.S.C. 4651 et seq., also 
known as the Creating Helpful Incentives to Produce Semiconductors 
(CHIPS) for America Act. The law provides the Department of Commerce 
with $50 billion for a suite of programs to strengthen and revitalize 
the U.S. position in semiconductor research, development, and 
manufacturing. The CHIPS for America program encompasses two offices 
within NIST responsible for implementing the law: the CHIPS Research 
and Development Office is investing $11 billion into developing a 
robust domestic semiconductor R&D ecosystem, while the CHIPS Program 
Office is dedicating $39 billion to provide incentives for investment 
in semiconductor facilities and equipment in the United States. NIST is 
uniquely positioned to successfully administer the CHIPS for America 
program because of the bureau's strong relationships with U.S. 
industries, its deep understanding of the semiconductor ecosystem, and 
its reputation as fair and trustworthy.
    NEPA may apply to activities conducted by NIST, including on its 
campuses in Gaithersburg, MD, and Boulder, CO, as well as to activities 
for which NIST provides financial assistance. NIST's NEPA Procedures 
are intended to make the NEPA process more useful to both NIST and the 
public and will serve as a repository for guidance and resources to aid 
NIST in implementation of NEPA.
    As part of its NEPA Procedures, NIST is proposing 18 new CEs and 
has prepared a substantiation record to support establishment of each 
CE. The proposed CEs are supported by long-standing CEs and 
substantiation records that have been developed by other Federal 
agencies through processes consistent with NEPA regulatory requirements 
and CEQ guidance on the establishment of CEs. NIST identified existing 
CEs established by other federal agencies that are sufficiently 
described in supporting substantiation records to demonstrate that the 
actions covered by these existing CEs are similar in nature, scope, and 
impact on the human environment to actions performed by NIST. NIST also 
reviewed and analyzed other past actions by NIST and other federal 
agencies, including supporting NEPA documentation, to develop the 
proposed CEs. The past actions were evaluated to demonstrate that the 
actions that would be covered by NIST's proposed CEs normally do not 
have a substantial effect on the human environment, individually or in 
the aggregate. For a detailed discussion of and substantiation for each 
proposed CE, please refer to the substantiation record available at 
https://www.nist.gov/chips/national-environmental-policy-act-nepa.
    In this notice, NIST is requesting public comment on its draft NEPA 
Procedures, including on the 18 new CEs proposed as part of those 
Procedures, and on the substantiation record supporting those new CEs. 
To facilitate public comment, NIST is reproducing those 18 proposed CEs 
in this Notice. Additionally, the Building CHIPS in America Act 
recently established a number of CEs for use by NIST, which are also 
reproduced below. The Procedures include an Appendix A that lists all 
CEs available for use by NIST. NIST has consulted with CEQ on its 
proposal and is seeking input from the public.

A. Proposed New Categorical Exclusions

I. Administrative Activities

    I-1. Preparation, modification, and issuance of policy directives, 
rules, regulations, procedures, guidelines, guidance documents, 
bulletins, and informational publications that are of an 
administrative, financial, legal, technical, or procedural nature, for 
which the environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and will be, in 
whole or part, subject later to the NEPA process, either collectively 
or on a case-by-case basis.
    I-2. Planning, educational, informational, or advisory activities 
provided to other agencies, public and private entities, visitors, 
individuals, or the public, including training exercises and 
simulations conducted under appropriately controlled conditions and in 
accordance with all applicable laws, regulations, and requirements.
    I-3. Preparation and dissemination of scientific results, studies, 
surveys, audits, reports, plans, papers, recommendations, and technical 
advice.
    I-4. Technical assistance to other Federal, Tribal, State, and 
local agencies or the public.

[[Page 99836]]

    I-5. Contracts, collaborative research agreements, cooperative 
research and development agreements, interagency agreements, and other 
agreements that do not concern environmental matters or where the 
environmental effects are negligible.

II. Operations

    II-1. Routine procurement, use, storage, transportation, and 
disposal of non-hazardous goods and services in support of 
administrative, operational, or maintenance activities in accordance 
with Executive Orders and Federal procurement guidelines. Examples 
include office supplies and furniture; equipment; mobile assets (i.e., 
vehicles, vessels, aircraft); utility services; and deployable 
emergency response supplies and equipment.
    II-2. Routine use of hazardous materials (including procurement, 
transportation, distribution, and storage of such materials) and reuse, 
recycling, and disposal of solid, medical, radiological, or hazardous 
waste in a manner that is consistent with all applicable laws, 
regulations, and requirements. Examples include use of chemicals for 
laboratory applications; refueling of storage tanks; temporary storage 
and disposal of solid waste; disposal of waste through manufacturer 
return and recycling programs; and hazardous waste minimization 
activities, including source reduction activities and recycling.
    II-3. Maintenance of facilities, equipment, and grounds. Examples 
include interior utility work, road maintenance, window washing, lawn 
mowing, landscaping, weed management/maintenance, trash collecting, 
facility cleaning, and snow removal.

III. Facility Modernization

    III-1. Internal modifications, renovations, or additions (e.g., 
computer facilities, relocating interior walls) to structures or 
buildings that do not result in a change in the functional use of the 
property.
    * III-2. Exterior renovation, addition, repair, alteration, safety 
and environmental improvements, and demolition projects affecting 
buildings, roads, grounds, equipment, and other facilities, including 
subsequent disposal of debris, which may be contaminated with hazardous 
materials, lead, or asbestos. Hazardous materials must be disposed of 
at approved sites in accordance with all applicable laws, regulations, 
and requirements. These actions do not result in a significant change 
in the expected useful life, design capacity, or function of the 
facility and during which operations may be suspended and then resumed, 
and they do not include rebuilding or modifying substantial portions of 
a facility (such as replacing a reactor vessel). Examples include the 
following:
    (a) Painting, roofing, siding, or alterations to an existing 
building;
    (b) Adding a small storage shed to an existing building;
    (c) Retrofitting for energy and water conservation and efficiency, 
including weatherization, installation of timers on hot water heaters, 
installation of energy efficient lighting, and installation of low flow 
plumbing fixtures.
    (d) Closing and demolishing a building not eligible for listing 
under the National Register of Historic Places; or
    (e) Replacement/upgrade of control valves, in-core monitoring 
devices, facility air filtration systems, or substation transformers or 
capacitors; addition of structural bracing to meet earthquake standards 
and/or sustain high wind loading; and replacement of aboveground or 
belowground tanks and related piping, provided that there is no 
evidence of leakage, based on testing in accordance with applicable 
requirements (such as 40 CFR 265, ``Interim Status Standards for Owners 
and Operators of Hazardous Waste Treatment, Storage, and Disposal 
Facilities'' and 40 CFR 280, ``Technical Standards and Corrective 
Action Requirements for Owners and Operators of Underground Storage 
Tanks'').
    (f) Covered actions include, but are not limited to weatherization 
(such as insulation and replacing windows and doors); programmed 
lowering of thermostat settings; placement of timers on hot water 
heaters; installation or replacement of energy efficient lighting, low-
flow plumbing fixtures (such as faucets, toilets, and showerheads), 
heating, ventilation, and air conditioning systems, and appliances; 
installation of drip-irrigation systems; improvements in generator 
efficiency and appliance efficiency ratings; efficiency improvements 
for vehicles and transportation (such as fleet changeout); power 
storage (such as flywheels and batteries, generally less than 10 
megawatt equivalent); 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.
    * III-3. Minor improvements to existing steam plants and cooling 
water systems (including, but not limited to, modifications of existing 
cooling towers and ponds), provided that the improvements would not:
    (a) Create new sources of water or involve new receiving waters;
    (b) Have the potential to significantly alter water withdrawal 
rates;
    (c) Exceed the permitted temperature of discharged water; or
    (d) Increase introductions of, or involve new introductions of, 
hazardous substances, pollutants, contaminants, or Comprehensive 
Environmental Response, Compensation, and Liability Act-excluded 
(CERCLA) petroleum and natural gas products.
    * III-4. Installation or relocation and operation of machinery and 
equipment (including, but not limited to, laboratory equipment, 
electronic hardware, manufacturing machinery, maintenance equipment, 
and health and safety equipment), provided that uses of the installed 
or relocated items are consistent with the general missions of the 
receiving structure. Covered actions include modifications to an 
existing building, within or contiguous to a previously disturbed or 
developed area, that are necessary for equipment installation and 
relocation. Such modifications would not appreciably increase the 
footprint or height of the existing building or have the potential to 
cause significant changes to the type and magnitude of environmental 
impacts.

IV. Real Property

    * IV-1. Acquisition or use of existing facilities or portions 
thereof by purchase, lease, or use agreement where use or operation 
will remain unchanged. Examples include acquiring office space through 
lease, purchase, or use agreement, and acquisition of laboratory space 
through lease, purchase, or use agreement.
    * IV-2. Decisions and actions to close facilities, decommission 
equipment, or temporarily discontinue use of facilities or equipment, 
where the facility or equipment, including office equipment, 
telecommunications equipment, and computer equipment, is not used to 
prevent or control environmental impacts.

V. Research

    * V-1. Proposed new and recurring activities and operations 
conducted in laboratories and facilities where research practices and 
safeguards (including but not limited to environmental permits for 
operation) prevent environmental impacts, would

[[Page 99837]]

be consistent with previously established safety levels, and would not 
result in a change in use of the facility. Examples include types of 
research, development, testing, and evaluation activities, and 
laboratory operations conducted within existing facilities designed to 
support research and development activities. Not included in this 
category are demonstration actions, meaning actions that are undertaken 
at a scale to show whether a technology would be viable on a larger 
scale and suitable for commercial deployment.
    * V-2. Outdoor research activities conducted in compliance with all 
applicable laws, regulations, and requirements. Examples include types 
of research, development, testing, and evaluation activities conducted 
outdoors where no new ground disturbance occurs and no sensitive 
resources (e.g., threatened or endangered species, archaeological 
sites, Tribal resources, wetlands, and waterbodies) are present, such 
as radar testing, radio noise measurements, and public safety 
communications research.

VI. Facility Construction

    * VI-1. New construction or improvement of buildings or 
experimental equipment (e.g., trailers, prefabricated buildings, and 
test slabs) on previously disturbed ground, with no more than 1 acre 
(0.4 hectare) of ground disturbance in previously disturbed areas, 
where the proposed facility use is generally compatible with the 
surrounding land use and applicable zoning standards and will not 
require additional support infrastructure. Such facilities could be 
used for indoor small-scale research and development projects and 
small-scale pilot projects using nanoscale materials in accordance with 
applicable requirements (such as engineering, worker safety, 
procedural, and administrative regulations) necessary to ensure the 
containment of any hazardous materials.

VII. Federal Assistance

    VII-1. Actions related to financial assistance administration 
performed at any stage during the financial assistance lifecycle, such 
as the development and issuance of guidance; announcements of 
availability of funds; project reviews for program eligibility; 
provision of technical assistance; conducting inspections, financial 
audits, and monitoring activities; development of information 
technology systems for financial assistance management; close-out 
activities; and actions taken in situations where an awardee is in non-
conformance with program requirements, such as disallowances, 
recoupment of funds, and debarment.
    CEs labeled with an asterisk (*) require documentation in 
accordance with NIST's NEPA Procedures.

B. Categorical Exclusions Established by 15 U.S.C. 4652(d)(1)

    Each of the following categorical exclusions was established for 
the National Institute of Standards and Technology with respect to a 
covered activity, defined as any activity relating to the construction, 
expansion, or modernization of a facility, the investment in which is 
eligible for Federal financial assistance under 15 U.S.C. 4652 or 4656, 
and is available for use by the Secretary:
    A. Categorical exclusion 17.04.d (relating to the acquisition of 
machinery and equipment) in the document entitled `EDA Program to 
Implement the National Environmental Policy Act of 1969 and Other 
Federal Environmental Mandates As Required' (Directive No. 17.02-2; 
effective date October 14, 1992).
     EDA (d). Acquisition of machinery and equipment (M&E) 
unless these require applications for or amendments to existing air, 
water or solid waste permits.
    B. Categorical exclusion A9 in Appendix A to subpart D of part 1021 
of title 10, Code of Federal Regulations, or any successor regulation.
     DOE A9. Information gathering (including, but not limited 
to, literature surveys, inventories, site visits, and audits), data 
analysis (including, but not limited to, computer modeling), document 
preparation (including, but not limited to, conceptual design, 
feasibility studies, and analytical energy supply and demand studies), 
and information dissemination (including, but not limited to, document 
publication and distribution, and classroom training and informational 
programs), but not including site characterization or environmental 
monitoring. (See also B3.1 of appendix B to this subpart.)
    C. Categorical exclusions B1.24, B1.31, B2.5, and B5.1 in Appendix 
B to subpart D of part 1021 of title 10, Code of Federal Regulations, 
or any successor regulation.
     DOE B1.24. Transfer, lease, disposition, or acquisition of 
interests in personal property (including, but not limited to, 
equipment and materials) or real property (including, but not limited 
to, permanent structures and land), provided that under reasonably 
foreseeable uses (1) there would be no potential for release of 
substances at a level, or in a form, that could pose a threat to public 
health or the environment and (2) the covered actions would not have 
the potential to cause a significant change in impacts from before the 
transfer, lease, disposition, or acquisition of interests.
     DOE B1.31. Installation or relocation and operation of 
machinery and equipment (including, but not limited to, laboratory 
equipment, electronic hardware, manufacturing machinery, maintenance 
equipment, and health and safety equipment), provided that uses of the 
installed or relocated items are consistent with the general missions 
of the receiving structure. Covered actions include modifications to an 
existing building, within or contiguous to a previously disturbed or 
developed area, that are necessary for equipment installation and 
relocation. Such modifications would not appreciably increase the 
footprint or height of the existing building or have the potential to 
cause significant changes to the type and magnitude of environmental 
impacts.
     DOE B2.5. Safety and environmental improvements of a 
facility (including, but not limited to, replacement and upgrade of 
facility components) that do not result in a significant change in the 
expected useful life, design capacity, or function of the facility and 
during which operations may be suspended and then resumed. Improvements 
include, but are not limited to, replacement/upgrade of control valves, 
in-core monitoring devices, facility air filtration systems, or 
substation transformers or capacitors; addition of structural bracing 
to meet earthquake standards and/or sustain high wind loading; and 
replacement of aboveground or belowground tanks and related piping, 
provided that there is no evidence of leakage, based on testing in 
accordance with applicable requirements (such as 40 CFR part 265, 
``Interim Status Standards for Owners and Operators of Hazardous Waste 
Treatment, Storage, and Disposal Facilities'' and 40 CFR part 280, 
``Technical Standards and Corrective Action Requirements for Owners and 
Operators of Underground Storage Tanks''). These actions do not include 
rebuilding or modifying substantial portions of a facility (such as 
replacing a reactor vessel).
     DOE. B5.1. (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 concentrations of potentially harmful 
substances. These actions may involve financial and technical

[[Page 99838]]

assistance to individuals (such as builders, owners, consultants, 
manufacturers, and designers), organizations (such as utilities), and 
governments (such as state, local, and tribal). Covered actions 
include, but are not limited to weatherization (such as insulation and 
replacing windows and doors); programmed lowering of thermostat 
settings; placement of timers on hot water heaters; installation or 
replacement of energy efficient lighting, low-flow plumbing fixtures 
(such as faucets, toilets, and showerheads), heating, ventilation, and 
air conditioning systems, and appliances; installation of drip-
irrigation systems; improvements in generator efficiency and appliance 
efficiency ratings; efficiency improvements for vehicles and 
transportation (such as fleet changeout); power storage (such as 
flywheels and batteries, generally less than 10 megawatt equivalent); 
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.
    D. The categorical exclusions described in paragraphs (4) and (13) 
of section 50.19(b) of title 24, Code of Federal Regulations, or any 
successor regulation.
     HUD a(4). Public services that will not have a physical 
impact or result in any physical changes, including but not limited to 
services concerned with employment, crime prevention, child care, 
health, drug abuse, education, counseling, energy conservation and 
welfare or recreational needs.
     HUD a(13). Operating costs including maintenance, 
security, operation, utilities, furnishings, equipment, supplies, staff 
training and recruitment and other incidental costs; however, in the 
case of equipment, compliance with Sec.  50.4(b)(1) is required.
    E. Categorical exclusion (c)(1) in Appendix B to part 651 of title 
32, Code of Federal Regulations, or any successor regulation.
     Army (c)(1). Construction of an addition to an existing 
structure or new construction on a previously undisturbed site if the 
area to be disturbed has no more than 5.0 cumulative acres of new 
surface disturbance. This does not include construction of facilities 
for the transportation, distribution, use, storage, treatment, and 
disposal of solid waste, medical waste, and hazardous waste.
    F. Categorical exclusions A2.3.8 and A2.3.14 in Appendix B to part 
989 of title 32, Code of Federal Regulations, or any successor 
regulation.
     USAF A2.3.8. Performing interior and exterior construction 
within the 5-foot line of a building without changing the land use of 
the existing building.
     USAF A2.3.14. Installing on previously developed land, 
equipment that does not substantially alter land use (i.e., land use of 
more than one acre). This includes outgrants to private lessees for 
similar construction.
Extraordinary Circumstances
    NIST has identified a list of extraordinary circumstances in its 
draft NEPA Procedures. If NIST determines that a CE is appropriate for 
a proposed action, NIST must also evaluate the proposed action for the 
presence of extraordinary circumstances. 40 CFR 1501.4(b). 
Extraordinary circumstances are situations for which NIST has 
determined that further NEPA analysis may be required because they are 
circumstances in which a categorically excluded action may have 
significant effects. The mere presence of one or more extraordinary 
circumstances does not preclude the use of a CE. A determination of 
whether an action that is categorically excluded requires additional 
evaluation because of extraordinary circumstances focuses on the 
action's potential effects and considers the significance of those 
effects in terms of the context (the potentially affected region, 
interests, and resources) and the intensity (the degree or severity of 
the effects) of the action. Before applying a CE, NIST must consider 
whether the proposed action involves one or more of the following 
extraordinary circumstances:
    1. The action has potential to adversely affect human health or 
safety;
    2. The action is located in or may affect an area with unique 
environmental characteristics, such as historic or cultural resources; 
park, recreation or refuge lands; wilderness areas; wild or scenic 
rivers; national natural landmarks; sole or principal drinking water 
aquifers; prime farmlands; wetlands (E.O. 11990); floodplains (E.O. 
11988); national monuments; and other ecologically significant or 
critical areas;
    3. The action may affect a species that is listed, or proposed to 
be listed, as threatened or endangered under the Endangered Species Act 
(ESA), or is located in the habitat of such a species;
    4. The action has the potential to affect properties that are 
listed or eligible for listing on the National Register of Historic 
Places;
    5. The action has the potential to affect lands owned by or held in 
trust for a Federally recognized Tribe;
    6. The action has the potential to restrict access to and 
ceremonial use of Indian sacred sites on Federal lands by Indian 
religious practitioners or significantly adversely affect the physical 
integrity of such sacred sites (E.O. 13007);
    7. The action has the potential to have a disproportionate and 
adverse effect on communities with environmental justice concerns (E.O. 
14096);
    8. The action has the potential to violate a Federal, State, 
Tribal, or local law or requirement imposed for protection of the 
environment;
    9. The action involves unresolved conflicts concerning alternative 
uses of available resources;
    10. The action has highly uncertain and potentially significant 
environmental effects or involves unique or unknown environmental 
risks;
    11. The action has the potential to establish a precedent for 
future action or represents a decision in principle about future 
actions with potentially significant environmental effects; or
    12. The action has the potential for significant cumulative impacts 
when the proposed action is combined with other past, present and 
reasonably foreseeable future actions, even though the impacts of the 
proposed action may not be significant by themselves.
    For CEs that NIST has adopted from other Federal agencies under 
Section 109 of NEPA, NIST will consider extraordinary circumstances in 
the manner described in the Federal Register notice announcing the 
adoption. This process may require considering extraordinary 
circumstances identified by the agency that developed the CE in that 
agency's NEPA implementing procedures.
    If NIST determines that an extraordinary circumstance exists, NIST 
may nonetheless determine that a CE is appropriate for the proposed 
action if NIST conducts an analysis and determines that the proposed 
action does not in fact have the potential to result in significant 
effects notwithstanding the extraordinary circumstance or modifies the 
action to avoid the potential to result in significant effects. In such 
cases, NIST will document the determination and

[[Page 99839]]

make it publicly available on a NIST website or through other means.
Documenting the Use of a CE
    Some activities, such as routine personnel actions or purchases of 
small amounts of supplies, may carry no risk of significant 
environmental effects, such that there is no benefit from preparing 
additional documentation when applying a CE to those activities. NIST 
must, however, prepare a separate document to evaluate the 
applicability of a CE in each of the following cases:
    1. For any application of a CE designated by NIST as requiring 
documentation, as indicated by an asterisk in the list of proposed new 
CEs;
    2. For any application of a CE adopted from another Federal agency 
under Section 109 of NEPA; and
    3. For any case in which NIST determines that a CE is appropriate 
notwithstanding the existence of an extraordinary circumstance.
    Such documentation must include the following:
    (a) a description of the proposed action;
    (b) the CE category number, title, and CE text that applies to the 
action;
    (c) a brief summary of the agency's rationale for determining that 
the proposed action is consistent with the terms of the CE, including a 
description of how the action complies with any limitations in the CE 
(e.g., surface disturbance limitations);
    (d) a brief summary of the agency's review of the extraordinary 
circumstances (or, where applicable, the extraordinary circumstances 
identified by the agency that developed a CE adopted by NIST under 
Section 109 of NEPA); and
    (e) where the agency has determined that one or more extraordinary 
circumstance exists, the rationale for the agency's determination that 
the proposed action does not in fact have the potential to result in 
significant effects notwithstanding the extraordinary circumstance, or 
a description of the modifications that NIST has made to the action to 
avoid the potential to result in significant effects.
    The document may take the form of a memorandum, a completed form, 
or other similar document, so long as the above components are 
included. Before the action is implemented, NIST must sign and date the 
document to indicate that use of the CE is appropriate. NIST must keep 
the original, signed document as part of the record for the action.
Request for Comments
    NIST requests comments from the public on its draft NEPA Procedures 
and its proposal to establish new CEs. The agency will consider input 
from the public and consult with CEQ for a conformity determination 
before finalizing its proposal.

Alicia Chambers,
NIST Executive Secretariat.
[FR Doc. 2024-29088 Filed 12-10-24; 8:45 am]
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