Deadline for Agencies To Propose Updates to National Environmental Policy Act Procedures, 34154-34158 [2021-13770]

Download as PDF 34154 Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations Category CAS No. Di-isobutyl phthalate (DIBP)—(1,2-Benzene-dicarboxylic acid, 1,2bis-(2methylpropyl) ester) .................................................................. Ethylene dibromide ............................................................................... Formaldehyde ....................................................................................... 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2benzopyran (HHCB) .......................................................................... 4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA) .................. Phosphoric acid, triphenyl ester (TPP) ................................................. Phthalic anhydride ................................................................................. 1,1,2-Trichloroethane ............................................................................ Tris(2-chloroethyl) phosphate (TCEP) .................................................. * * * * Organohalogen flame retardants: Bis(2-ethylhexyl) tetrabromophthalate .................................................. Bis(hexachlorocyclopentadieno)cyclooctane ........................................ 1,2-Bis(2,4,6-tribromophenoxy)ethane .................................................. 1,1′-Ethane-1,2-diylbis(pentabromobenzene) ....................................... 2-Ethylhexyl-2,3,4,5-tetrabromobenzoate ............................................. 2-(2-Hydroxyethoxy)ethyl 2-hydroxypropyl 3,4,5,6tetrabromophthalate ........................................................................... 2,2′-[(1-Methylethylidene)bis[(2,6-dibromo-4,1-phenylene)oxymethylene]]bis[oxirane] ...................................................... Mixture of chlorinated linear alkanes C14–17 with 45–52% chlorine .. N,N-Ethylene-bis(tetrabromophthalimide) ............................................. Pentabromochlorocyclohexane ............................................................. (Pentabromophenyl)methyl acrylate ..................................................... Pentabromotoluene ............................................................................... Perbromo-1,4-diphenoxybenzene ......................................................... Phosphonic acid, (2-chloroethyl)-, bis(2-chloroethyl) ester .................. Phosphoric acid, 2,2-bis(chloromethyl)-1,3-propanediyl tetrakis(2chloroethyl) ester ............................................................................... Propanoic acid, 2-bromo-, methyl ester ................................................ Tetrabromobisphenol A-bis(2,3-dibromopropyl ether) .......................... Tetrabromobisphenol A bis(2-hydroxyethyl) ether ................................ Tetrabromobisphenol A diallyl ether ..................................................... Tetrabromobisphenol A dimethyl ether ................................................. 2,4,6-Tribromoaniline ............................................................................ 1,3,5-Tribromo-2-(prop-2-en-1-yloxy)benzene ...................................... Tris(2-chloroethyl)phosphite .................................................................. Tris(1-chloro-2-propyl)phosphate .......................................................... Tris(2-chloro-1-propyl)phosphate .......................................................... Tris(2,3-dibromopropyl)phosphate ........................................................ 1,3,5-Tris(2,3-dibromopropyl)-1,3,5-triazine-2,4,6(1H,3H,5H)-trione .... Tris(1,3-dichloro-2-propyl)phosphate .................................................... Tris(tribromoneopentyl)phosphate ........................................................ 2,4,6-Tris-(2,4,6-tribromophenoxy)-1,3,5-triazine .................................. [FR Doc. 2021–13212 Filed 6–28–21; 8:45 am] BILLING CODE 6560–50–P COUNCIL ON ENVIRONMENTAL QUALITY 40 CFR Part 1507 lotter on DSK11XQN23PROD with RULES1 RIN 0331–AA08 Deadline for Agencies To Propose Updates to National Environmental Policy Act Procedures Council on Environmental Quality. ACTION: Interim final rule; request for comments. AGENCY: 16:47 Jun 28, 2021 Jkt 253001 7/29/21 7/29/21 7/29/21 9/27/21 9/27/21 9/27/21 1222–05–5 79–94–7 115–86–6 85–44–9 79–00–5 115–96–8 § 716.21(a)(9) § 716.21(a)(9) § 716.21(a)(9) § 716.21(a)(9) § 716.21(a)(9) § 716.21(a)(9) 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 * * § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 20566–35–2 § 716.21(a)(10) 7/29/21 9/27/21 3072–84–2 85535–85–9 32588–76–4 87–84–3 59447–55–1 87–83–2 58965–66–5 6294–34–4 § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 38051–10–4 5445–17–0 21850–44–2 4162–45–2 25327–89–3 37853–61–5 147–82–0 3278–89–5 140–08–9 13674–84–5 6145–73–9 126–72–7 52434–90–9 13674–87–8 19186–97–1 25713–60–4 § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) § 716.21(a)(10) 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 7/29/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 9/27/21 Effective date: This interim rule is effective June 29, 2021. Comments due date: CEQ must receive comments on this interim rule by July 29, 2021. ADDRESSES: You may submit comments through any of the following methods: D Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. D Fax: 202–456–6546. Fmt 4700 * 26040–51–7 13560–89–9 37853–59–1 84852–53–9 183658–27–7 The Council on Environmental Quality (CEQ) is extending the deadline by two years for Federal agencies to develop or revise proposed procedures for implementing the procedural provisions of the National Environmental Policy Act (NEPA). Frm 00030 Sunset date § 716.21(a)(9) § 716.21(a)(9) § 716.21(a)(9) SUMMARY: PO 00000 Effective date 84–69–5 106–93–4 50–00–0 DATES: [CEQ–2021–0001] VerDate Sep<11>2014 Special exemptions Sfmt 4700 D Mail: Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503. Instructions: All submissions must include the agency name, ‘‘Council on Environmental Quality,’’ and docket number, CEQ–2021–0001, for this rulemaking. All comments received will be posted without change to https:// www.regulations.gov, including any personal information provided. Do not submit electronically any information you consider to be private, Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. D Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov. E:\FR\FM\29JNR1.SGM 29JNR1 Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations Rule’’).6 As amended, 40 CFR 1507.3(b) requires Federal agencies to propose their own regulations to implement the 2020 Rule by September 14, 2021. CEQ issued a Memorandum to the Federal SUPPLEMENTARY INFORMATION: agencies on July 16, 2020, and the Office I. Background of Management and Budget (OMB) issued a Memorandum to the Federal The National Environmental Policy agencies on November 2, 2020, Act of 1969, 42 U.S.C. 4321 et seq., (NEPA) directs Federal agencies to ‘‘use establishing deadlines for Federal all practicable means and measures . . . agencies to implement the September 7 to create and maintain conditions under 14, 2021 deadline. which man and nature can exist in On January 20, 2021, President Biden productive harmony, and fulfill the signed E.O. 13990, Protecting Public social, economic, and other Health and the Environment and requirements of present and future Restoring Science to Tackle the Climate generations of Americans.’’ 42 U.S.C. Crisis, to empower America’s workers, 4331(a). In pursuit of that directive, combat climate change, address NEPA requires Federal agencies to environmental justice, and improve and prepare an environmental impact protect public health and the statement for ‘‘major Federal actions environment.8 In accomplishing these significantly affecting the quality of the goals, E.O. 13990 directs Federal human environment.’’ 42 U.S.C. agencies to ensure the integrity of their 4332(2)(C). NEPA also established the decision-making processes and make Council on Environmental Quality sound decisions based on science. E.O. (CEQ) in the Executive Office of the 13990 directs Federal agencies to review President, 42 U.S.C. 4342, which Federal agency actions taken between oversees Federal agency implementation January 20, 2017, and January 20, 2021, of NEPA. including the promulgation of In 1970, President Nixon issued E.O. regulations, for consistency with those 11514, Protection and Enhancement of priorities and to take appropriate action, Environmental Quality, which directed including publishing for notice and CEQ to issue guidelines for comment a proposed rule suspending, implementation of NEPA.1 In 1977, revising, or rescinding actions found to President Carter issued E.O. 11991, be inconsistent with them. An Relating to Protection and Enhancement accompanying White House Fact Sheet of Environmental Quality, directing CEQ specifically identifies the 2020 Rule as to issue regulations to govern among the actions to be reviewed.9 On implementation of NEPA and requiring January 27, 2021, the President signed that Federal agencies comply with those E.O. 14008, Tackling the Climate Crisis regulations.2 CEQ promulgated at Home and Abroad, which establishes implementing regulations in 1978 at 40 a government-wide approach to CFR parts 1500 through 1508 (‘‘1978 reducing climate pollution and Rule’’).3 Consistent with the establishes an Administration policy to requirement in 40 CFR 1507.3, Federal increase climate resilience, transition to agencies, in turn, issued their own a clean-energy economy and support implementing procedures to economic opportunities in energy supplement the 1978 Rule and integrate communities, address environmental the NEPA process into the agencies’ justice issues and invest in specific programs and processes. CEQ disadvantaged communities, and spur made technical amendments to the 1978 well-paying union jobs and economic Rule in 1979 4 and promulgated minor amendments to it in 1986,5 but left the 6 85 FR 43304 (July 16, 2020). 7 CEQ, Memorandum for Heads of Federal regulations largely unchanged for over Departments and Agencies, Implementation of forty years. As a result, an extensive Updated National Environmental Policy Act body of agency practice and caselaw Regulations (July 16, 2020), https://ceq.doe.gov/ developed based on the 1978 Rule. docs/laws-regulations/memo-implementationOn July 16, 2020, CEQ issued a final updated-regs-2020-07-16-withdrawn.pdf; Budget and Management Guidance on Updates to the rule substantially revising the NEPA Regulations Implementing the Procedural implementing regulations (‘‘2020 FOR FURTHER INFORMATION CONTACT: lotter on DSK11XQN23PROD with RULES1 Amy B. Coyle, Deputy General Counsel, 202–395–5750, Amy.B.Coyle@ ceq.eop.gov. 1 35 FR 4247 (Mar. 7, 1970), sec. 3(h). 2 42 FR 26967 (May 25, 1977), sec. 2(g). 3 Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 43 FR 55978 (Nov. 23, 1978). 4 44 FR 873 (Jan. 3, 1979). 5 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22). VerDate Sep<11>2014 16:11 Jun 28, 2021 Jkt 253001 Provisions of the National Environmental Policy Act, M–21–01 (Nov. 2, 2020), https:// www.whitehouse.gov/wp-content/uploads/2020/11/ M-21-01.pdf. 8 86 FR 7037 (Jan. 25, 2021). 9 White House Fact Sheet: List of Agency Actions for Review (Jan. 20, 2021), https:// www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agencyactions-for-review/. PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 34155 growth.10 E.O. 14008 also requires the Chair of CEQ and the Director of OMB to ensure that Federal infrastructure investments reduce climate pollution and that Federal permitting decisions consider the effects of greenhouse gas emissions and climate change.11 CEQ is engaged in an ongoing and comprehensive review of the 2020 Rule for consistency with the nation’s environmental, equity, and economic priorities; to evaluate the process CEQ used in developing the 2020 Rule; and to consider whether the 2020 Rule properly and lawfully interprets and implements NEPA. In conducting its review, CEQ will assess how to amend its NEPA regulations to deliver an efficient environmental review process that ensures robust public participation and environmental protection. II. Summary of Final Rule CEQ has begun its review of the 2020 Rule and has substantial concerns about the legality of the 2020 Rule, the process that produced it, and whether the 2020 Rule meets the nation’s needs and priorities, including the priorities set forth in E.O. 13990 and E.O. 14008. These concerns include that some of the changes made to the NEPA regulations create confusion with respect to NEPA implementation, break from longstanding caselaw interpreting NEPA’s statutory requirements, and may have the purpose or effect of improperly limiting relevant NEPA analysis, with negative repercussions in critical areas such as climate change and environmental justice that are inconsistent with the mandates of E.O. 13990 and E.O. 14008. CEQ plans to address these issues through further rulemaking, as described below. Notwithstanding CEQ’s ongoing review, the severity of CEQ’s concerns, and the likelihood that CEQ will propose significant amendments to the 2020 Rule, 40 CFR 1507.3(b) currently requires Federal agencies to propose revisions to agency-specific NEPA regulations within 12 months of September 14, 2020—by September 14, 2021. Through this interim final rule, CEQ revises § 1507.3(b) to change 12 months to 36 months, providing Federal agencies an additional two years, until September 14, 2023, to propose revisions to their NEPA procedures. Federal agencies have raised concerns to CEQ about developing revised procedures consistent with the 2020 Rule given its inconsistency with E.O. 13990 and E.O. 14008 and CEQ’s ongoing review, which could result in 10 86 11 Id. E:\FR\FM\29JNR1.SGM FR 7619, 7622 (Feb. 1, 2021). § 213(a). 29JNR1 lotter on DSK11XQN23PROD with RULES1 34156 Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations additional changes to CEQ’s NEPA regulations that would need to be reflected in agency procedures. This additional period of time will address these concerns and allow Federal agencies to avoid wasting resources developing procedures based upon regulations that CEQ may repeal or substantially amend. Following this rulemaking, CEQ will initiate further rulemaking to propose amendments to the 2020 Rule to revise the NEPA implementing regulations to comply with the statute’s text and goals; provide regulatory certainty to stakeholders; promote better decision making consistent with NEPA’s statutory requirements; ensure appropriate coordination among Federal agencies, and State, Tribal, and local governments during the environmental review process; and meet environmental, climate change, and environmental justice objectives. Extending the deadline in § 1507.3(b) without first seeking comment is appropriate for two reasons. First, this amendment is a rule ‘‘of agency organization, procedure, or practice’’ exempted from the Administrative Procedure Act’s (APA’s) notice and comment rulemaking procedures and the requirement that substantive rules be published in the Federal Register thirty days before the effective date. See 5 U.S.C. 553(b)(A), (d). Such procedural rules ‘‘are ‘primarily directed toward improving the efficient and effective operations of an agency, not toward a determination of the rights [or] interests of affected parties.’ ’’ Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (quoting Batterton v. Marshall, 648 F.2d 694, 702 n. 34 (D.C.Cir.1980)). In addressing rules of agency organization, procedure, or practice, ‘‘Congress intended . . . to distinguish between rules affecting different subject matters—the rights or interests of regulated parties, and agencies’ internal operations.’’ Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369, 378 (D.C. Cir. 1990), vacated, 498 U.S. 1077, 111 S. Ct. 944, 112 L. Ed. 2d 1033 (1991), and vacated, 933 F.2d 1043 (D.C. Cir. 1991) (internal quotations and citations omitted). Providing Federal agencies with additional time to prepare and propose their own NEPA implementing regulations does not ‘‘encode[] a substantive value judgment,’’ Public Citizen v. Dep’t of State, 276 F3.3d 634, 641 (D.C. Cir. 2002) (quoting JEM Broadcasting Co. v. FCC, 22 F3d. 320, 327–28 (D.C. Cir. 1994), but rather merely avoids the wasted resources that could occur by requiring Federal agencies to propose revisions to their regulations before CEQ VerDate Sep<11>2014 16:11 Jun 28, 2021 Jkt 253001 has completed its review. See also, e.g., Elec. Priv. Info. Center v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 5–6 (D.C. Cir. 2011); Aulenback, Inc. v Fed. Highway Admin., 103 F.3d 156, 169 (D.C. Cir. 1997). The purely procedural character of extending the time provided by § 1507.3(b) is reinforced by the fact that this provision only sets forth the deadline for Federal agencies to propose procedural revisions, rather than to finalize those revisions, and therefore has no substantive effect. Because § 1507.3(b) merely establishes an internal government deadline for Federal agencies to propose revisions to that agency’s internal NEPA procedures, CEQ has determined that amending that deadline fits within the category of procedural rules exempted from noticeand-comment rulemaking. CEQ nonetheless invites comments on this determination. Second, even if extending the deadline in 40 CFR 1507.3(b) is not an exempted procedural rule, CEQ has good cause to issue an interim final rule. The APA authorizes agencies to issue regulations without notice and public comment when an agency finds, for good cause, that notice and comment is ‘‘impracticable, unnecessary, or contrary to the public interest,’’ 5 U.S.C. 553(b)(B), and to make the rule effective immediately for good cause. 5 U.S.C. 553(d)(3). As discussed, 40 CFR 1507.3(b) requires agencies to submit proposals to implement the 2020 Rule within 12 months of September 14, 2020, and section 1507.3(b)(1) requires Federal agencies to consult with CEQ while developing proposals. To meet that deadline, agencies must therefore budget and devote funds and other resources for the revision of procedures in an expedited manner. CEQ also would have to expend its limited resources reviewing Federal agencies’ proposed implementing procedures before CEQ completes its review of the 2020 Rule and adopts any amendments. Prior to President Biden issuing E.O. 13990 and E.O. 14008, which initiated CEQ’s comprehensive review of the 2020 Rule, only the U.S. Department of Transportation (DOT) had published proposed procedures in the Federal Register for public comment after consulting with CEQ as required by 40 CFR 1507.3(b)(1). CEQ estimates that at least 85 more agencies must comply with the deadline established by 40 CFR 1507.3(b). It is impracticable to amend the deadline in 40 CFR 1507.3(b) through an ordinary notice and comment process because there is not enough time to conduct an adequate public comment PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 process and complete the rulemaking before the September 14, 2021, deadline and, even if CEQ could finalize amendment of this provision before September 14, 2021, Federal agencies would already have devoted significant resources to preparing their revised procedures. Given the extensive changes made to the NEPA regulations in the 2020 Rule, the proposed revisions to agency NEPA procedures called for in 40 CFR 1507.3 may be substantial and require significant lead time for agencies to complete before September 14, 2021, underscoring the impracticability of proceeding through ordinary notice and comment. The development of agency NEPA procedures typically involves significant coordination internal to the agency, especially when large Departments have multiple agencies within them. Additionally, the consultation process with CEQ involves discussions both during the agencies’ development of their procedures as well as a formal review process where CEQ provides comments and agencies make additional revisions to their proposals before the agency issues them for public comment. As described above, only DOT published proposed procedures to satisfy the directive of 40 CFR 1507.3 between the time that the 2020 Rule was promulgated on July 16, 2020 and January 20, 2021, when E.O. 13990 directed CEQ to commence a review of the 2020 Rule, which evidences the significant investment of time and resources required for agencies to develop proposed implementing procedures. For this same reason, keeping the September 14, 2021, deadline without immediate action is contrary to the public interest because it would result in Federal agencies’ wasteful expenditure of their resources and personnel to develop proposed procedures to implement a rule that CEQ is reviewing and intends to revise. Finally, CEQ finds that it is unnecessary to accept comment before taking this action because extending the deadline for Federal agencies to propose implementing procedures will have no impact on the public. See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012). Additionally, CEQ accepted public comment on this 12month deadline before promulgating the 2020 Rule, and the extension of the deadline involves similar issues (the need for time for agencies to update their procedures following changes to CEQ regulations). See, e.g., Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 276 (D.C. Cir. 2014), vacated and remanded sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016). E:\FR\FM\29JNR1.SGM 29JNR1 Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations Furthermore, OMB, the agency with oversight responsibility on regulatory processes, also has reached the conclusion that requiring agencies to report on their progress towards the September 14, 2021 deadline would be inconsistent with the Administration’s policies.12 CEQ invites comment on this rule’s amendment of § 1507.3(b) to extend by 2 years the period of time Federal agencies have to propose implementing procedures that conform with the 2020 Rule, and CEQ’s bases for issuing this amendment as an interim final rule. CEQ will consider comments it receives and take further action, if appropriate. III. Rulemaking Analyses and Notices A. Regulatory Procedures Under the APA, an agency may waive notice and comment procedures if an action is an interpretative rule, a general statement of policy, or a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A). As discussed in section II, CEQ has determined that this rule is a rule of ‘‘agency organization, procedure, or practice’’ and, therefore, CEQ is not required to engage in a notice and comment rulemaking process. Furthermore, because the rule is a procedural rule, rather than a substantive rule, it may be made effective immediately upon publication. See 5 U.S.C. 553(d). B. E.O. 12866, Regulatory Planning and Review, and E.O. 13563, Improving Regulation and Regulatory Review E.O. 12866 provides that OIRA will review all significant rules. E.O. 13563 reaffirms the principles of E.O. 12866, calling for improvements in the Federal Government’s regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory objectives. OMB determined that this final rule does not meet the requirements for a significant regulatory action under E.O. 12866, as supplemented by E.O. 13563, and therefore it was not subject to review. C. Regulatory Flexibility Act and E.O. 13272, Proper Consideration of Small Entities in Agency Rulemaking lotter on DSK11XQN23PROD with RULES1 The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et seq., 12 See Revocation of OMB Memorandum M–21– 01, ‘‘Budget and Management Guidance on Updates to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act’’, M–21–23 (Apr. 26, 2021), https:// www.whitehouse.gov/wp-content/uploads/2021/04/ M-21-23.pdf. VerDate Sep<11>2014 16:11 Jun 28, 2021 Jkt 253001 and E.O. 13272 13 require agencies to assess the impacts of proposed and final rules on small entities. Under the RFA, small entities include small businesses, small organizations, and small governmental jurisdictions. An agency must prepare an Initial Regulatory Flexibility Analysis (IRFA) unless it determines and certifies that a proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). This interim rule does not directly regulate small entities. Rather, the rule applies to Federal agencies and sets forth the process for their compliance with NEPA. Accordingly, CEQ hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities. D. National Environmental Policy Act Under the CEQ regulations, major Federal actions may include regulations. When CEQ issued regulations in 1978, it prepared a ‘‘special environmental assessment’’ for illustrative purposes pursuant to E.O. 11991. 43 FR 25230, 25232 (June 9, 1978). The NPRM for the 1978 Rule stated ‘‘the impacts of procedural regulations of this kind are not susceptible to detailed analysis beyond that set out in the assessment.’’ Id. Similarly, in 1986, although CEQ stated in the final rule that there were ‘‘substantial legal questions as to whether entities within the Executive Office of the President are required to prepare environmental assessments,’’ it also prepared a special environmental assessment. 51 FR 15618, 15619 (Apr. 25, 1986). The special environmental assessment issued in 1986 made a finding of no significant environmental impact, and there was no finding made for the assessment of the 1978 Rule. CEQ has similarly developed a special environmental assessment for this rule and made a finding of no significant impact, and included them in the docket for this rulemaking. E. E.O. 13132, Federalism E.O. 13132 requires agencies to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.14 Policies that have federalism implications include regulations that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and 13 67 14 64 PO 00000 FR 53461 (Aug. 16, 2002). FR 43255 (Aug. 10, 1999). Frm 00033 Fmt 4700 Sfmt 4700 34157 responsibilities among the various levels of government. CEQ does not anticipate that this interim final rule has federalism implications because it applies to Federal agencies, not States. F. E.O. 13175, Consultation and Coordination With Indian Tribal Governments E.O. 13175 requires agencies to have a process to ensure meaningful and timely input by Tribal officials in the development of policies that have Tribal implications.15 Such policies include regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The Presidential Memorandum of January 26, 2021 on Tribal Consultation and Strengthening Nation-to-Nation Relationships reaffirms the provisions of E.O. 13175 and directs Federal agencies to develop an action plan to implement E.O. 13175. CEQ adopted an Action Plan for Consultation and Coordination with Tribal Nations on April 26, 2021, to direct CEQ’s actions to identify policies with Tribal implications and ensure sustained and meaningful consultation. This interim final rule is not a regulatory policy that has Tribal implications because it merely extends the time by which Federal agencies have to propose updates to their NEPA implementing procedures. G. E.O. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations E.O. 12898 requires agencies to make achieving environmental justice part of their missions by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of agency programs, policies, and activities, including rulemakings, on minority populations and low-income populations.16 This interim final rule would extend the deadline by which agencies have to submit proposals for changes to their NEPA procedures. Submitting a proposal for changes to the NEPA procedures does not change the manner in which Federal agencies implement NEPA; agencies would still need to subject those procedures to notice and comment and then issue final procedures. Therefore, submitting a proposal does not have adverse human health or environmental effects. CEQ 15 65 16 59 E:\FR\FM\29JNR1.SGM FR 67249 (Nov. 9, 2000). FR 7629 (Feb. 16, 1994). 29JNR1 34158 Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations has determined, therefore, that this interim final rule would not cause disproportionately high and adverse human health or environmental effects on minority populations and lowincome populations. H. E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Agencies must prepare a Statement of Energy Effects for significant energy actions under E.O. 13211.17 This interim final rule is not a ‘‘significant energy action’’ because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. I. E.O. 12988, Civil Justice Reform Under section 3(a) of E.O. 12988,18 agencies must review their proposed regulations to eliminate drafting errors and ambiguities, draft them to minimize litigation, and provide a clear legal standard for affected conduct. Section 3(b) provides a list of specific issues that agencies should consider when conducting the reviews required by section 3(a). CEQ has conducted this review and determined that this interim final rule complies with the requirements of E.O. 12988. lotter on DSK11XQN23PROD with RULES1 J. Unfunded Mandate Reform Act Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments, and the private sector to the extent that such regulations incorporate requirements specifically set forth in law. Before promulgating a rule that may result in the expenditure by a State, Tribal, or local government, in the aggregate, or by the private sector of $100 million, adjusted annually for inflation, in any 1 year, an agency must prepare a written statement that assesses the effects on State, Tribal, and local governments and the private sector. 2 U.S.C. 1532. This interim final rule applies to Federal agencies and would not result in expenditures of $100 million or more for State, Tribal, and local governments, in the aggregate, or the private sector in any 1 year. This action also does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of 2 U.S.C. 1531–1538. K. Paperwork Reduction Act This interim final rule does not impose any new information collection 17 66 18 61 FR 28355 (May 22, 2001). FR 4729 (Feb. 7, 1996). VerDate Sep<11>2014 16:11 Jun 28, 2021 Jkt 253001 burden that would require additional review or approval by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List of Subjects in 40 CFR Part 1507 Administrative practice and procedure, Environmental impact statements, Environmental protection, Natural resources. Dated: June 22, 2021. Brenda Mallory, Chair. DATES: PART 1507—AGENCY COMPLIANCE 1. The authority citation for part 1507 continues to read as follows: ■ Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966–1970, Comp., p. 902, as amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369. 2. Amend § 1507.3 by revising the first sentence of paragraph (b) introductory text to read as follows: ■ Agency NEPA procedures. * * * * * (b) No more than 36 months after September 14, 2020, or 9 months after the establishment of an agency, whichever comes later, each agency shall develop or revise, as necessary, proposed procedures to implement the regulations in this subchapter, including to eliminate any inconsistencies with the regulations in this subchapter. * * * * * * * * [FR Doc. 2021–13770 Filed 6–28–21; 8:45 am] BILLING CODE 3225–F1–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 21–127; RM–11894; DA 21– 700; FR ID 34398] Television Broadcasting Services Schenectady, New York Federal Communications Commission (FCC). ACTION: Final rule. AGENCY: On April 5, 2021, the Media Bureau, Video Division (Bureau) issued a Notice of Proposed Rulemaking (NPRM) in response to a petition for SUMMARY: PO 00000 Frm 00034 Fmt 4700 Effective June 29, 2021. FOR FURTHER INFORMATION CONTACT: For the reasons stated in the preamble, the Council on Environmental Quality amends part 1507 in title 40 of the Code of Federal Regulations to read as follows: § 1507.3 rulemaking filed by WRGB Licensee, LLC (Petitioner), the licensee of WRGB, channel 6 (CBS), Schenectady, New York, requesting the substitution of channel 35 for channel 6 at Schenectady in the DTV Table of Allotments. For the reasons set forth in the Report and Order referenced below, the Bureau amends FCC regulations to substitute channel 35 for channel 6 at Schenectady. Sfmt 4700 Joyce Bernstein, Media Bureau, at (202) 418–1647 or Joyce.Bernstein@fcc.gov. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission’s Report and Order, MB Docket No. 21–127; RM– 11894; DA 21–700, adopted and released on June 16, 2021. The full text of this document is available for download on the FCC’s website at https://docs.fcc.gov/public/ attachments/DA-21-700A1.pdf. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202–418–0530 (voice), 202–418–0432 (tty). The proposed rule was published at 86 FR 21681 on April 23, 2021. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 35. No other comments were filed. The Petitioner states that VHF channels have certain propagation characteristics which may cause reception issues for some viewers. In addition, WRGB has received numerous complaints from viewers unable to receive the Station’s over-theair signal, despite being able to receive signals from other stations. While the proposed channel 35 noise limited contour does not completely encompass the relevant channel 6 noise limited contour, WRGB is a CBS affiliate and there are three other CBS affiliated stations that serve some portion of the loss area. In addition, the Petitioner submitted an analysis, using the Commission’s TVStudy software analysis program, demonstrating that, after taking into account service provided by other CBS stations, all of the population located within WRGB’s original post-DTV transition channel 6 noise limited contour will continue to receive CBS service, except for 30 people, a number the Commission considers de minimis. As the Bureau explained in the NPRM, it used the technical parameters of WRGB’s original post-transition digital channel 6 facility (File No. BPCDT–20080307AAK) in E:\FR\FM\29JNR1.SGM 29JNR1

Agencies

[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Rules and Regulations]
[Pages 34154-34158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13770]


=======================================================================
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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Part 1507

[CEQ-2021-0001]
RIN 0331-AA08


Deadline for Agencies To Propose Updates to National 
Environmental Policy Act Procedures

AGENCY: Council on Environmental Quality.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Council on Environmental Quality (CEQ) is extending the 
deadline by two years for Federal agencies to develop or revise 
proposed procedures for implementing the procedural provisions of the 
National Environmental Policy Act (NEPA).

DATES: 
    Effective date: This interim rule is effective June 29, 2021.
    Comments due date: CEQ must receive comments on this interim rule 
by July 29, 2021.

ADDRESSES: You may submit comments through any of the following 
methods:
    [ssquf] Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Fax: 202-456-6546.
    [ssquf]  Mail: Council on Environmental Quality, 730 Jackson Place 
NW, Washington, DC 20503.
    Instructions: All submissions must include the agency name, 
``Council on Environmental Quality,'' and docket number, CEQ-2021-0001, 
for this rulemaking. All comments received will be posted without 
change to https://www.regulations.gov, including any personal 
information provided. Do not submit electronically any information you 
consider to be private, Confidential Business Information (CBI), or 
other information whose disclosure is restricted by statute.
    [ssquf] Docket: For access to the docket to read background 
documents or comments received, go to https://www.regulations.gov.

[[Page 34155]]


FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel, 
202-395-5750, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., (NEPA) directs Federal agencies to ``use all practicable means 
and measures . . . to create and maintain conditions under which man 
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). In pursuit of that directive, NEPA 
requires Federal agencies to prepare an environmental impact statement 
for ``major Federal actions significantly affecting the quality of the 
human environment.'' 42 U.S.C. 4332(2)(C). NEPA also established the 
Council on Environmental Quality (CEQ) in the Executive Office of the 
President, 42 U.S.C. 4342, which oversees Federal agency implementation 
of NEPA.
    In 1970, President Nixon issued E.O. 11514, Protection and 
Enhancement of Environmental Quality, which directed CEQ to issue 
guidelines for implementation of NEPA.\1\ In 1977, President Carter 
issued E.O. 11991, Relating to Protection and Enhancement of 
Environmental Quality, directing CEQ to issue regulations to govern 
implementation of NEPA and requiring that Federal agencies comply with 
those regulations.\2\ CEQ promulgated implementing regulations in 1978 
at 40 CFR parts 1500 through 1508 (``1978 Rule'').\3\ Consistent with 
the requirement in 40 CFR 1507.3, Federal agencies, in turn, issued 
their own implementing procedures to supplement the 1978 Rule and 
integrate the NEPA process into the agencies' specific programs and 
processes. CEQ made technical amendments to the 1978 Rule in 1979 \4\ 
and promulgated minor amendments to it in 1986,\5\ but left the 
regulations largely unchanged for over forty years. As a result, an 
extensive body of agency practice and caselaw developed based on the 
1978 Rule.
---------------------------------------------------------------------------

    \1\ 35 FR 4247 (Mar. 7, 1970), sec. 3(h).
    \2\ 42 FR 26967 (May 25, 1977), sec. 2(g).
    \3\ Regulations for Implementing the Procedural Provisions of 
the National Environmental Policy Act, 43 FR 55978 (Nov. 23, 1978).
    \4\ 44 FR 873 (Jan. 3, 1979).
    \5\ 51 FR 15618 (Apr. 25, 1986) (amending 40 CFR 1502.22).
---------------------------------------------------------------------------

    On July 16, 2020, CEQ issued a final rule substantially revising 
the NEPA implementing regulations (``2020 Rule'').\6\ As amended, 40 
CFR 1507.3(b) requires Federal agencies to propose their own 
regulations to implement the 2020 Rule by September 14, 2021. CEQ 
issued a Memorandum to the Federal agencies on July 16, 2020, and the 
Office of Management and Budget (OMB) issued a Memorandum to the 
Federal agencies on November 2, 2020, establishing deadlines for 
Federal agencies to implement the September 14, 2021 deadline.\7\
---------------------------------------------------------------------------

    \6\ 85 FR 43304 (July 16, 2020).
    \7\ CEQ, Memorandum for Heads of Federal Departments and 
Agencies, Implementation of Updated National Environmental Policy 
Act Regulations (July 16, 2020), https://ceq.doe.gov/docs/laws-regulations/memo-implementation-updated-regs-2020-07-16-withdrawn.pdf; Budget and Management Guidance on Updates to the 
Regulations Implementing the Procedural Provisions of the National 
Environmental Policy Act, M-21-01 (Nov. 2, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-01.pdf.
---------------------------------------------------------------------------

    On January 20, 2021, President Biden signed E.O. 13990, Protecting 
Public Health and the Environment and Restoring Science to Tackle the 
Climate Crisis, to empower America's workers, combat climate change, 
address environmental justice, and improve and protect public health 
and the environment.\8\ In accomplishing these goals, E.O. 13990 
directs Federal agencies to ensure the integrity of their decision-
making processes and make sound decisions based on science. E.O. 13990 
directs Federal agencies to review Federal agency actions taken between 
January 20, 2017, and January 20, 2021, including the promulgation of 
regulations, for consistency with those priorities and to take 
appropriate action, including publishing for notice and comment a 
proposed rule suspending, revising, or rescinding actions found to be 
inconsistent with them. An accompanying White House Fact Sheet 
specifically identifies the 2020 Rule as among the actions to be 
reviewed.\9\ On January 27, 2021, the President signed E.O. 14008, 
Tackling the Climate Crisis at Home and Abroad, which establishes a 
government-wide approach to reducing climate pollution and establishes 
an Administration policy to increase climate resilience, transition to 
a clean-energy economy and support economic opportunities in energy 
communities, address environmental justice issues and invest in 
disadvantaged communities, and spur well-paying union jobs and economic 
growth.\10\ E.O. 14008 also requires the Chair of CEQ and the Director 
of OMB to ensure that Federal infrastructure investments reduce climate 
pollution and that Federal permitting decisions consider the effects of 
greenhouse gas emissions and climate change.\11\
---------------------------------------------------------------------------

    \8\ 86 FR 7037 (Jan. 25, 2021).
    \9\ White House Fact Sheet: List of Agency Actions for Review 
(Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
    \10\ 86 FR 7619, 7622 (Feb. 1, 2021).
    \11\ Id. Sec.  213(a).
---------------------------------------------------------------------------

    CEQ is engaged in an ongoing and comprehensive review of the 2020 
Rule for consistency with the nation's environmental, equity, and 
economic priorities; to evaluate the process CEQ used in developing the 
2020 Rule; and to consider whether the 2020 Rule properly and lawfully 
interprets and implements NEPA. In conducting its review, CEQ will 
assess how to amend its NEPA regulations to deliver an efficient 
environmental review process that ensures robust public participation 
and environmental protection.

II. Summary of Final Rule

    CEQ has begun its review of the 2020 Rule and has substantial 
concerns about the legality of the 2020 Rule, the process that produced 
it, and whether the 2020 Rule meets the nation's needs and priorities, 
including the priorities set forth in E.O. 13990 and E.O. 14008. These 
concerns include that some of the changes made to the NEPA regulations 
create confusion with respect to NEPA implementation, break from 
longstanding caselaw interpreting NEPA's statutory requirements, and 
may have the purpose or effect of improperly limiting relevant NEPA 
analysis, with negative repercussions in critical areas such as climate 
change and environmental justice that are inconsistent with the 
mandates of E.O. 13990 and E.O. 14008. CEQ plans to address these 
issues through further rulemaking, as described below. Notwithstanding 
CEQ's ongoing review, the severity of CEQ's concerns, and the 
likelihood that CEQ will propose significant amendments to the 2020 
Rule, 40 CFR 1507.3(b) currently requires Federal agencies to propose 
revisions to agency-specific NEPA regulations within 12 months of 
September 14, 2020--by September 14, 2021. Through this interim final 
rule, CEQ revises Sec.  1507.3(b) to change 12 months to 36 months, 
providing Federal agencies an additional two years, until September 14, 
2023, to propose revisions to their NEPA procedures. Federal agencies 
have raised concerns to CEQ about developing revised procedures 
consistent with the 2020 Rule given its inconsistency with E.O. 13990 
and E.O. 14008 and CEQ's ongoing review, which could result in

[[Page 34156]]

additional changes to CEQ's NEPA regulations that would need to be 
reflected in agency procedures. This additional period of time will 
address these concerns and allow Federal agencies to avoid wasting 
resources developing procedures based upon regulations that CEQ may 
repeal or substantially amend.
    Following this rulemaking, CEQ will initiate further rulemaking to 
propose amendments to the 2020 Rule to revise the NEPA implementing 
regulations to comply with the statute's text and goals; provide 
regulatory certainty to stakeholders; promote better decision making 
consistent with NEPA's statutory requirements; ensure appropriate 
coordination among Federal agencies, and State, Tribal, and local 
governments during the environmental review process; and meet 
environmental, climate change, and environmental justice objectives.
    Extending the deadline in Sec.  1507.3(b) without first seeking 
comment is appropriate for two reasons. First, this amendment is a rule 
``of agency organization, procedure, or practice'' exempted from the 
Administrative Procedure Act's (APA's) notice and comment rulemaking 
procedures and the requirement that substantive rules be published in 
the Federal Register thirty days before the effective date. See 5 
U.S.C. 553(b)(A), (d). Such procedural rules ``are `primarily directed 
toward improving the efficient and effective operations of an agency, 
not toward a determination of the rights [or] interests of affected 
parties.' '' Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) 
(quoting Batterton v. Marshall, 648 F.2d 694, 702 n. 34 
(D.C.Cir.1980)). In addressing rules of agency organization, procedure, 
or practice, ``Congress intended . . . to distinguish between rules 
affecting different subject matters--the rights or interests of 
regulated parties, and agencies' internal operations.'' Air Transp. 
Ass'n of Am. v. Dep't of Transp., 900 F.2d 369, 378 (D.C. Cir. 1990), 
vacated, 498 U.S. 1077, 111 S. Ct. 944, 112 L. Ed. 2d 1033 (1991), and 
vacated, 933 F.2d 1043 (D.C. Cir. 1991) (internal quotations and 
citations omitted). Providing Federal agencies with additional time to 
prepare and propose their own NEPA implementing regulations does not 
``encode[] a substantive value judgment,'' Public Citizen v. Dep't of 
State, 276 F3.3d 634, 641 (D.C. Cir. 2002) (quoting JEM Broadcasting 
Co. v. FCC, 22 F3d. 320, 327-28 (D.C. Cir. 1994), but rather merely 
avoids the wasted resources that could occur by requiring Federal 
agencies to propose revisions to their regulations before CEQ has 
completed its review. See also, e.g., Elec. Priv. Info. Center v. U.S. 
Dep't of Homeland Sec., 653 F.3d 1, 5-6 (D.C. Cir. 2011); Aulenback, 
Inc. v Fed. Highway Admin., 103 F.3d 156, 169 (D.C. Cir. 1997).
    The purely procedural character of extending the time provided by 
Sec.  1507.3(b) is reinforced by the fact that this provision only sets 
forth the deadline for Federal agencies to propose procedural 
revisions, rather than to finalize those revisions, and therefore has 
no substantive effect. Because Sec.  1507.3(b) merely establishes an 
internal government deadline for Federal agencies to propose revisions 
to that agency's internal NEPA procedures, CEQ has determined that 
amending that deadline fits within the category of procedural rules 
exempted from notice-and-comment rulemaking. CEQ nonetheless invites 
comments on this determination.
    Second, even if extending the deadline in 40 CFR 1507.3(b) is not 
an exempted procedural rule, CEQ has good cause to issue an interim 
final rule. The APA authorizes agencies to issue regulations without 
notice and public comment when an agency finds, for good cause, that 
notice and comment is ``impracticable, unnecessary, or contrary to the 
public interest,'' 5 U.S.C. 553(b)(B), and to make the rule effective 
immediately for good cause. 5 U.S.C. 553(d)(3). As discussed, 40 CFR 
1507.3(b) requires agencies to submit proposals to implement the 2020 
Rule within 12 months of September 14, 2020, and section 1507.3(b)(1) 
requires Federal agencies to consult with CEQ while developing 
proposals. To meet that deadline, agencies must therefore budget and 
devote funds and other resources for the revision of procedures in an 
expedited manner. CEQ also would have to expend its limited resources 
reviewing Federal agencies' proposed implementing procedures before CEQ 
completes its review of the 2020 Rule and adopts any amendments. Prior 
to President Biden issuing E.O. 13990 and E.O. 14008, which initiated 
CEQ's comprehensive review of the 2020 Rule, only the U.S. Department 
of Transportation (DOT) had published proposed procedures in the 
Federal Register for public comment after consulting with CEQ as 
required by 40 CFR 1507.3(b)(1). CEQ estimates that at least 85 more 
agencies must comply with the deadline established by 40 CFR 1507.3(b).
    It is impracticable to amend the deadline in 40 CFR 1507.3(b) 
through an ordinary notice and comment process because there is not 
enough time to conduct an adequate public comment process and complete 
the rulemaking before the September 14, 2021, deadline and, even if CEQ 
could finalize amendment of this provision before September 14, 2021, 
Federal agencies would already have devoted significant resources to 
preparing their revised procedures. Given the extensive changes made to 
the NEPA regulations in the 2020 Rule, the proposed revisions to agency 
NEPA procedures called for in 40 CFR 1507.3 may be substantial and 
require significant lead time for agencies to complete before September 
14, 2021, underscoring the impracticability of proceeding through 
ordinary notice and comment. The development of agency NEPA procedures 
typically involves significant coordination internal to the agency, 
especially when large Departments have multiple agencies within them. 
Additionally, the consultation process with CEQ involves discussions 
both during the agencies' development of their procedures as well as a 
formal review process where CEQ provides comments and agencies make 
additional revisions to their proposals before the agency issues them 
for public comment. As described above, only DOT published proposed 
procedures to satisfy the directive of 40 CFR 1507.3 between the time 
that the 2020 Rule was promulgated on July 16, 2020 and January 20, 
2021, when E.O. 13990 directed CEQ to commence a review of the 2020 
Rule, which evidences the significant investment of time and resources 
required for agencies to develop proposed implementing procedures. For 
this same reason, keeping the September 14, 2021, deadline without 
immediate action is contrary to the public interest because it would 
result in Federal agencies' wasteful expenditure of their resources and 
personnel to develop proposed procedures to implement a rule that CEQ 
is reviewing and intends to revise.
    Finally, CEQ finds that it is unnecessary to accept comment before 
taking this action because extending the deadline for Federal agencies 
to propose implementing procedures will have no impact on the public. 
See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 2012). 
Additionally, CEQ accepted public comment on this 12-month deadline 
before promulgating the 2020 Rule, and the extension of the deadline 
involves similar issues (the need for time for agencies to update their 
procedures following changes to CEQ regulations). See, e.g., Priests 
for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229, 276 
(D.C. Cir. 2014), vacated and remanded sub nom. Zubik v. Burwell, 136 
S. Ct. 1557 (2016).

[[Page 34157]]

Furthermore, OMB, the agency with oversight responsibility on 
regulatory processes, also has reached the conclusion that requiring 
agencies to report on their progress towards the September 14, 2021 
deadline would be inconsistent with the Administration's policies.\12\
---------------------------------------------------------------------------

    \12\ See Revocation of OMB Memorandum M-21-01, ``Budget and 
Management Guidance on Updates to the Regulations Implementing the 
Procedural Provisions of the National Environmental Policy Act'', M-
21-23 (Apr. 26, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/04/M-21-23.pdf.
---------------------------------------------------------------------------

    CEQ invites comment on this rule's amendment of Sec.  1507.3(b) to 
extend by 2 years the period of time Federal agencies have to propose 
implementing procedures that conform with the 2020 Rule, and CEQ's 
bases for issuing this amendment as an interim final rule. CEQ will 
consider comments it receives and take further action, if appropriate.

III. Rulemaking Analyses and Notices

A. Regulatory Procedures

    Under the APA, an agency may waive notice and comment procedures if 
an action is an interpretative rule, a general statement of policy, or 
a rule of agency organization, procedure, or practice. See 5 U.S.C. 
553(b)(A). As discussed in section II, CEQ has determined that this 
rule is a rule of ``agency organization, procedure, or practice'' and, 
therefore, CEQ is not required to engage in a notice and comment 
rulemaking process. Furthermore, because the rule is a procedural rule, 
rather than a substantive rule, it may be made effective immediately 
upon publication. See 5 U.S.C. 553(d).

B. E.O. 12866, Regulatory Planning and Review, and E.O. 13563, 
Improving Regulation and Regulatory Review

    E.O. 12866 provides that OIRA will review all significant rules. 
E.O. 13563 reaffirms the principles of E.O. 12866, calling for 
improvements in the Federal Government's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory objectives. OMB 
determined that this final rule does not meet the requirements for a 
significant regulatory action under E.O. 12866, as supplemented by E.O. 
13563, and therefore it was not subject to review.

C. Regulatory Flexibility Act and E.O. 13272, Proper Consideration of 
Small Entities in Agency Rulemaking

    The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et 
seq., and E.O. 13272 \13\ require agencies to assess the impacts of 
proposed and final rules on small entities. Under the RFA, small 
entities include small businesses, small organizations, and small 
governmental jurisdictions. An agency must prepare an Initial 
Regulatory Flexibility Analysis (IRFA) unless it determines and 
certifies that a proposed rule, if promulgated, would not have a 
significant economic impact on a substantial number of small entities. 
5 U.S.C. 605(b). This interim rule does not directly regulate small 
entities. Rather, the rule applies to Federal agencies and sets forth 
the process for their compliance with NEPA. Accordingly, CEQ hereby 
certifies that this interim final rule will not have a significant 
economic impact on a substantial number of small entities.
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    \13\ 67 FR 53461 (Aug. 16, 2002).
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D. National Environmental Policy Act

    Under the CEQ regulations, major Federal actions may include 
regulations. When CEQ issued regulations in 1978, it prepared a 
``special environmental assessment'' for illustrative purposes pursuant 
to E.O. 11991. 43 FR 25230, 25232 (June 9, 1978). The NPRM for the 1978 
Rule stated ``the impacts of procedural regulations of this kind are 
not susceptible to detailed analysis beyond that set out in the 
assessment.'' Id. Similarly, in 1986, although CEQ stated in the final 
rule that there were ``substantial legal questions as to whether 
entities within the Executive Office of the President are required to 
prepare environmental assessments,'' it also prepared a special 
environmental assessment. 51 FR 15618, 15619 (Apr. 25, 1986). The 
special environmental assessment issued in 1986 made a finding of no 
significant environmental impact, and there was no finding made for the 
assessment of the 1978 Rule. CEQ has similarly developed a special 
environmental assessment for this rule and made a finding of no 
significant impact, and included them in the docket for this 
rulemaking.

E. E.O. 13132, Federalism

    E.O. 13132 requires agencies to develop an accountable process to 
ensure meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism 
implications.\14\ Policies that have federalism implications include 
regulations that have substantial direct effects 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. CEQ does not anticipate that this interim final rule has 
federalism implications because it applies to Federal agencies, not 
States.
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    \14\ 64 FR 43255 (Aug. 10, 1999).
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F. E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    E.O. 13175 requires agencies to have a process to ensure meaningful 
and timely input by Tribal officials in the development of policies 
that have Tribal implications.\15\ Such policies include regulations 
that have substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal Government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. The Presidential Memorandum of January 
26, 2021 on Tribal Consultation and Strengthening Nation-to-Nation 
Relationships reaffirms the provisions of E.O. 13175 and directs 
Federal agencies to develop an action plan to implement E.O. 13175. CEQ 
adopted an Action Plan for Consultation and Coordination with Tribal 
Nations on April 26, 2021, to direct CEQ's actions to identify policies 
with Tribal implications and ensure sustained and meaningful 
consultation. This interim final rule is not a regulatory policy that 
has Tribal implications because it merely extends the time by which 
Federal agencies have to propose updates to their NEPA implementing 
procedures.
---------------------------------------------------------------------------

    \15\ 65 FR 67249 (Nov. 9, 2000).
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G. E.O. 12898, Federal Actions To Address Environmental Justice in 
Minority Populations and Low-Income Populations

    E.O. 12898 requires agencies to make achieving environmental 
justice part of their missions by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of agency programs, policies, and activities, 
including rulemakings, on minority populations and low-income 
populations.\16\ This interim final rule would extend the deadline by 
which agencies have to submit proposals for changes to their NEPA 
procedures. Submitting a proposal for changes to the NEPA procedures 
does not change the manner in which Federal agencies implement NEPA; 
agencies would still need to subject those procedures to notice and 
comment and then issue final procedures. Therefore, submitting a 
proposal does not have adverse human health or environmental effects. 
CEQ

[[Page 34158]]

has determined, therefore, that this interim final rule would not cause 
disproportionately high and adverse human health or environmental 
effects on minority populations and low-income populations.
---------------------------------------------------------------------------

    \16\ 59 FR 7629 (Feb. 16, 1994).
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H. E.O. 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use

    Agencies must prepare a Statement of Energy Effects for significant 
energy actions under E.O. 13211.\17\ This interim final rule is not a 
``significant energy action'' because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.
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    \17\ 66 FR 28355 (May 22, 2001).
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I. E.O. 12988, Civil Justice Reform

    Under section 3(a) of E.O. 12988,\18\ agencies must review their 
proposed regulations to eliminate drafting errors and ambiguities, 
draft them to minimize litigation, and provide a clear legal standard 
for affected conduct. Section 3(b) provides a list of specific issues 
that agencies should consider when conducting the reviews required by 
section 3(a). CEQ has conducted this review and determined that this 
interim final rule complies with the requirements of E.O. 12988.
---------------------------------------------------------------------------

    \18\ 61 FR 4729 (Feb. 7, 1996).
---------------------------------------------------------------------------

J. Unfunded Mandate Reform Act

    Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) requires Federal agencies to assess the effects of their 
regulatory actions on State, Tribal, and local governments, and the 
private sector to the extent that such regulations incorporate 
requirements specifically set forth in law. Before promulgating a rule 
that may result in the expenditure by a State, Tribal, or local 
government, in the aggregate, or by the private sector of $100 million, 
adjusted annually for inflation, in any 1 year, an agency must prepare 
a written statement that assesses the effects on State, Tribal, and 
local governments and the private sector. 2 U.S.C. 1532. This interim 
final rule applies to Federal agencies and would not result in 
expenditures of $100 million or more for State, Tribal, and local 
governments, in the aggregate, or the private sector in any 1 year. 
This action also does not impose any enforceable duty, contain any 
unfunded mandate, or otherwise have any effect on small governments 
subject to the requirements of 2 U.S.C. 1531-1538.

K. Paperwork Reduction Act

    This interim final rule does not impose any new information 
collection burden that would require additional review or approval by 
OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 1507

    Administrative practice and procedure, Environmental impact 
statements, Environmental protection, Natural resources.

    Dated: June 22, 2021.
Brenda Mallory,
Chair.

    For the reasons stated in the preamble, the Council on 
Environmental Quality amends part 1507 in title 40 of the Code of 
Federal Regulations to read as follows:

PART 1507--AGENCY COMPLIANCE

0
1. The authority citation for part 1507 continues to read as follows:

    Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; 42 U.S.C. 
7609; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, as 
amended by E.O. 11991, 42 FR 26967, 3 CFR, 1977 Comp., p. 123; and 
E.O. 13807, 82 FR 40463, 3 CFR, 2017, Comp., p. 369.


0
2. Amend Sec.  1507.3 by revising the first sentence of paragraph (b) 
introductory text to read as follows:


Sec.  1507.3  Agency NEPA procedures.

* * * * *
    (b) No more than 36 months after September 14, 2020, or 9 months 
after the establishment of an agency, whichever comes later, each 
agency shall develop or revise, as necessary, proposed procedures to 
implement the regulations in this subchapter, including to eliminate 
any inconsistencies with the regulations in this subchapter. * * *
* * * * *
[FR Doc. 2021-13770 Filed 6-28-21; 8:45 am]
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