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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 Administrations policies.12
CEQ invites comment on this rules amendment of 1507.3b to extend by 2 years the period of time Federal agencies have to propose implementing procedures that conform with the 2020
Rule, and CEQs 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. 553bA. 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. 553d.
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 Governments 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
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The Regulatory Flexibility Act, as amended, RFA, 5 U.S.C. 601 et seq., 12 See Revocation of OMB Memorandum M21
01, Budget and Management Guidance on Updates to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, M2123 Apr. 26, 2021, https
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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. 605b. 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
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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 CEQs 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
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FR 67249 Nov. 9, 2000.
FR 7629 Feb. 16, 1994.

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