Deadline for Agencies To Propose Updates to National Environmental Policy Act Procedures, 34154-34158 [2021-13770]
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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) ..................................................
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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:
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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.
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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).
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SUMMARY:
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DATES:
[CEQ–2021–0001]
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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.
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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).
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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/.
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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.
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FR 7619, 7622 (Feb. 1, 2021).
§ 213(a).
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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
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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
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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).
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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
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
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\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.
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\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.
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\18\ 61 FR 4729 (Feb. 7, 1996).
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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]
BILLING CODE 3225-F1-P
