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Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations
additional changes to CEQs 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 statutes text and goals;
provide regulatory certainty to stakeholders; promote better decision making consistent with NEPAs 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 1507.3b 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 Acts APAs 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. 553bA, 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 mattersthe rights or interests of regulated parties, and agencies internal operations. Air Transp. Assn of Am. v.
Dept 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. Dept of State, 276 F3.3d 634, 641 D.C. Cir.
2002 quoting JEM Broadcasting Co. v.
FCC, 22 F3d. 320, 32728 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. Dept of Homeland Sec., 653 F.3d 1, 56 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 1507.3b 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 1507.3b merely establishes an internal government deadline for Federal agencies to propose revisions to that agencys 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 1507.3b 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.
553bB, and to make the rule effective immediately for good cause. 5 U.S.C.
553d3. As discussed, 40 CFR
1507.3b requires agencies to submit proposals to implement the 2020 Rule within 12 months of September 14, 2020, and section 1507.3b1 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 CEQs 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 1507.3b1. CEQ estimates that at least 85 more agencies must comply with the deadline established by 40 CFR
1507.3b.
It is impracticable to amend the deadline in 40 CFR 1507.3b 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. Dept 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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