Rule2025-12433
National Environmental Policy Act Implementing Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 3, 2025
Effective
July 3, 2025
Issuing agencies
Interior Department
Abstract
The Department of the Interior (Department or DOI) is partially rescinding and making necessary targeted updates to its remaining regulations implementing the National Environmental Policy Act (NEPA), which were promulgated to "supplement" now-rescinded Council on Environmental Quality (CEQ) NEPA implementing regulations. Mindful that the Supreme Court recently clarified NEPA is a "purely procedural statute," DOI will henceforth maintain the remainder of its NEPA procedures--which apply only to DOI's internal processes--in a Handbook separate from the Code of Federal Regulations (CFR). This interim final rule requests comments on this action and related matters to inform DOI's decision-making.
Full Text
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[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29498-29507]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12433]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 46
[256D0102DM; DS6CS00000; DLSN00000.000000]
[DOI-2025-0004]
RIN 1090-AB18
National Environmental Policy Act Implementing Regulations
AGENCY: Office of the Secretary, Interior
ACTION: Interim final rule, request for comments
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SUMMARY: The Department of the Interior (Department or DOI) is
partially rescinding and making necessary targeted updates to its
remaining regulations implementing the National Environmental Policy
Act (NEPA), which were promulgated to ``supplement'' now-rescinded
Council on Environmental Quality (CEQ) NEPA implementing regulations.
Mindful that the Supreme Court recently clarified NEPA is a ``purely
procedural statute,'' DOI will henceforth maintain the remainder of its
NEPA procedures--which apply only to DOI's internal processes--in a
Handbook separate from the Code of Federal Regulations (CFR). This
interim final rule requests comments on this action and related matters
to inform DOI's decision-making.
DATES: The interim final rule is effective July 3, 2025. Comments must
be postmarked (for mailed comments), delivered (for personal or
messenger delivery comments), or filed (for electronic comments) no
later than August 4, 2025. The Department will not necessarily consider
any comments received after the above date in making our decision.
ADDRESSES: You may submit comments on this IFR and its supporting
documents through either of the following methods:
[ssquf] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>
docket number DOI-2025-0004. Follow the instructions for submitting
comments.
[ssquf] Mail/Hand Delivery: U.S. Department of the Interior, 1849 C
Street NW, MS 5020, Washington, DC 20240.
Instructions: All submissions must include the agency name,
``Department of the Interior,'' and docket number, DOI-2025-0004, for
this rulemaking. All comments received will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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.
Docket: For access to the docket to read comments received, go to
<a href="https://www.regulations.gov">https://www.regulations.gov</a> docket number DOI-2025-0004.
FOR FURTHER INFORMATION CONTACT: Stephen G. Tryon, Director, Office of
Environmental Policy and Compliance, 202-208-4221,
<a href="/cdn-cgi/l/email-protection#024c475243706765776e63766b6d6c71426b6d712c666d6b2c656d74"><span class="__cf_email__" data-cfemail="68262d38291a0d0f1d04091c0107061b2801071b460c0701460f071e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
DOI is issuing this interim final rule to partially rescind and
make other needed, targeted updates to its regulations for
implementation of the National Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq., as amended (NEPA), codified at 43 CFR part 46.
DOI's existing NEPA implementing regulations were promulgated as a
``supplement. . . to be used in conjunction with,'' 43 CFR 46.20, CEQ's
NEPA regulations. DOI provided that the ``[p]urpose of this part'' was
to ensure ``compliance with'' not only NEPA itself but CEQ's
regulations implementing NEPA. 43 CFR 46.10(a)(2). But CEQ's NEPA
regulations have been repealed, as of April 11, 2025. See Removal of
National Environmental Policy Act Implementing Regulations, (90 FR
10610; Feb. 25, 2025). CEQ's repeal of its regulations was necessitated
by and is consistent with Executive Order (E.O.) 14154, Unleashing
American Energy (90 FR 8353; January 29, 2025), in which President
Trump rescinded President Carter's E.O. 11991, Relating to Protection
and Enhancement of Environmental Quality (42 FR 26967; May 24, 1977),
which was the basis CEQ had invoked for its authority to make rules.
President Trump in E.O. 14154 further directed agencies to revise their
NEPA implementing procedures consistent with the E.O., including its
direction to CEQ to rescind its regulations. DOI's regulations, which
were a ``supplement . . . to be used in conjunction with'' those CEQ
regulations, thus stand in obvious need of fundamental revision.
In addition, Congress recently passed the Fiscal Responsibility Act
of 2023 (FRA), Public Law 118-5, signed on June 3, 2023 to add
substantial detail and direction in Title I of NEPA, including in
particular on procedural issues that CEQ, DOI, and other agencies had
previously addressed in their own regulations. DOI recognized the need
to update its regulations in light of these significant statutory
changes. Since DOI's regulations were originally designed to supplement
CEQ's NEPA regulations, DOI had been awaiting CEQ action before
revising its own regulations, consistent with CEQ direction. See 40 CFR
1507.3(b) (2024); see also 86 FR 34154 (June 29, 2021). However, now
that CEQ's regulations have been repealed, it is exigent that DOI
ensure procedures conform to the statute as amended by the FRA.
Finally, the Supreme Court has recently issued its decision in
Seven County Infrastructure Coalition v. Eagle County, Colorado, 145 S.
Ct. 1497 (2025), in which it described the ``transform[ation]'' of NEPA
from its roots as ``a modest procedural requirement,'' into a
significant ``substantive roadblock'' that ``paralyze[s]'' ``agency
decisionmaking.'' Id. at 1507, 1513 (quotations omitted). The Supreme
Court explained that part of that problem had been caused by decisions
of lower courts, which it rejected, issuing a ``course correction''
mandating that courts give ``substantial deference'' to reasonable
agency conclusions underlying that agency's NEPA process. Id. at 1513-
14. The Court also acknowledged, and through its course correction
sought to address, the effect judicial ``micromanage[ment]'' has had on
``litigation-averse agencies'' which have been ``tak[ing] ever more
time and . . . [prepar[ing] ever longer EISs [environmental impact
statements] for future projects.'' Id. at 1513. DOI, thus, is issuing
this IFR to streamline its NEPA process in accordance with the Supreme
Court's decision and changes to the underlying statute. This revision
has thus been called for, authorized, and directed by all three
branches of government at the highest possible levels.
NEPA does not require Federal agencies to issue regulations
implementing NEPA, but instead directs agencies to ``identify and
develop methods and procedures,'' in coordination with CEQ, with
respect to their environmental analysis of their proposed actions, see
42 U.S.C. 4332(2)(B). Both E.O. 14154 and E.O. 14192 direct agencies to
ensure regulatory requirements are grounded in applicable law and to
alleviate any unnecessary regulatory burdens, respectively. Consistent
with the direction in these E.O.s to reduce unnecessary regulatory
burdens, DOI will rescind portions of its NEPA
[[Page 29499]]
implementing regulations at 43 CFR part 46, while retaining and making
targeted updates to certain provisions. Specifically, DOI intends to
retain and make limited updates to provisions relating to emergency
responses to ensure that DOI can respond timely to any such event and
to avoid any confusion regarding the continued validity of this
already-established provision for action in emergency situations (43
CFR 46.150); categorical exclusions and their use to avoid any
instability in these vital procedures or uncertainty about the
continued validity of its already-established categorical exclusions
(43 CFR 46.205, 46.210, 46.215); and applicant and contractor
preparation of environmental documents to provide a durable framework
for the use of such documents (43 CFR 46.105, 46.107). All other
provisions will be removed from 43 CFR part 46. Other than these few
provisions, DOI's procedures will henceforth be contained in the
Department of the Interior Handbook: National Environmental Policy Act
Implementing Procedures, a copy of which is available in the docket
listed under ADDRESSES above (but will not be codified in the CFR).
The Supreme Court could not have been clearer in Seven County that
NEPA is a procedural statute. See Seven County, 145 S. Ct. at 1510
(``NEPA is purely procedural. . . . NEPA does not mandate particular
results, but simply prescribes the necessary process for an agency's
environmental review of a project;'') (internal quotation omitted); id.
at 1511 (NEPA is a purely procedural statute''); id. at 1513 (NEPA is
properly understood as ``a modest procedural requirement''); id. at
1514 (``NEPA's status as a purely procedural statute''); see also id.
at 1507 (``Simply stated, NEPA is a procedural cross-check, not a
substantive roadblock.''). The history of DOI's implementing
regulations also reflects the understanding that they are procedural
rules, for they were uncodified for over a decade before being codified
``as a matter of good policy.'' This is, moreover, consistent with the
approach that several other Federal agencies have used for decades.
This action fulfills President Trump's directive in E.O. 14154 for
each agency to, in consultation with CEQ, revise its agency-level NEPA
implementing procedures in light of the FRA. 90 CFR at 8355. This
action implements E.O. 14154 and complies with the requirements of the
Administrative Procedure Act (APA). DOI requests comment on the
rescission of portions of its regulations implementing NEPA and its
retention and targeted updates to its remaining regulations
implementing NEPA, as well as the Department of the Interior Handbook:
National Environmental Policy Act Implementing Procedures, a copy of
which is available in the docket listed under ADDRESSES above (but will
not be codified in the CFR). This notice serves to provide fair notice
to interested persons and to allow for public comment on DOI's interim
final rulemaking. Public comments on the matters addressed in this
interim final rule are due by August 4, 2025. As explained in Section
IV of this notice, DOI requests and encourages public comment on the
rationale for this action and related matters that may inform DOI's
decision making.
A. National Environmental Policy Act
Congress enacted NEPA to declare a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which man and nature
can exist in productive harmony, and [to] fulfill the social, economic,
and other requirements of present and future generations of
Americans.'' 42 U.S.C. 4331(a).
NEPA, as amended by the FRA, furthers this national policy by
requiring Federal agencies to prepare an environmental impact
statement--``in essence, a report''--for proposed ``major Federal
actions significantly affecting the quality of the human environment.''
42 U.S.C. 4332(2)(C); Seven County, 145 S. Ct. at 1507. This statement
must address: (1) The reasonably foreseeable environmental effects of
the proposed agency action; (2) the reasonably foreseeable adverse
environmental effects that cannot be avoided; (3) a reasonable range of
alternatives to the proposed agency action, including an analysis of
any negative environmental impacts of not implementing the proposed
agency action in the case of a no action alternative, that are
technically and economically feasible, and meet the purpose and need of
the proposal; (4) the relationship between local short-term uses of
man's environment and the maintenance and enhancement of long-term
productivity; and (5) any irreversible and irretrievable commitments of
resources that would be involved in the proposed action. 42 U.S.C.
4332(2)(C).
NEPA further mandates that Federal agencies ensure the professional
and scientific integrity of environmental documents; use reliable data
and resources when carrying out NEPA; and study, develop, and describe
technically and economically feasible alternatives. 42 U.S.C.
4332(2)(D)-(F). NEPA provides procedures for making threshold
determinations about whether an environmental document must be prepared
and the appropriate level of environmental review. 42 U.S.C. 4336(a)-
(b).
NEPA does not mandate specific results or substantive outcomes.
Seven County, 145 S. Ct. at 1507. Rather, NEPA requires Federal
agencies to consider the environmental effects of proposed actions as
part of agencies' decision-making processes. As amended by the FRA,
NEPA provides additional requirements to facilitate timely and unified
Federal reviews, including provisions clarifying lead, joint lead, and
cooperating agency designations, generally requiring the development of
a single environmental document, directing agencies to develop
procedures for project sponsors to prepare environmental assessments
and environmental impact statements, and prescribing page limits and
deadlines. 42 U.S.C. 4336a. NEPA also sets forth the circumstances
under which agencies may rely on programmatic environmental documents,
42 U.S.C. 4663b, and adopt and use another agency's categorical
exclusions. 42 U.S.C. 4336c.
B. NEPA Regulations
1. Council on Environmental Quality (CEQ) NEPA Regulations
On January 20, 2025, President Trump issued E.O. 14154, Unleashing
American Energy.\1\ The E. O. revoked E.O. 11991, Relating to
protection and enhancement of environmental quality,\2\ which had
directed CEQ to issue regulations implementing NEPA and required
Federal agencies to comply with those regulations.\3\ E.O. 14154 also
directed CEQ to provide guidance on implementing NEPA and propose
rescinding CEQ's NEPA regulations within 30 days of the order.\4\ CEQ
issued an interim final rule rescinding CEQ's NEPA implementing
regulations (including as they relate to agency NEPA procedures) on
February 25, 2025, effective April 11, 2025.\5\ Following CEQ's
provision of initial guidance, E.O. 14154 directs the Chairman of CEQ
to convene a working group to coordinate the revision of
[[Page 29500]]
agency-level NEPA implementing regulations for consistency.
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\1\ 90 FR 8353 (Jan. 29, 2025) (``E.O. 14154'').
\2\ 42 FR 26,967 (May 25, 1977).
\3\ E.O. 14154 at sec. 5.
\4\ Id. at sec 5(a). The guidance and any resulting agency
implementing regulations must ``expedite permitting approvals and
meet deadlines established in the [FRA].'' Id. at sec 5(c).
\5\ 90 FR 10,610 (Feb. 25, 2025).
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2. DOI NEPA Regulations
Until 2008, DOI provided procedures for implementing NEPA in
chapters of part 516 of the Department Manual. DOI periodically revised
the Department Manual chapters containing NEPA procedures through a
notice and comment process that involved publication of proposed and
final revisions in the Federal Register, but did not promulgate as
regulations the procedures contained in the Department Manual. In 2008,
DOI promulgated regulations codifying DOI's NEPA procedures at 43 CFR
part 46. In the preamble to the 2008 notice of proposed rulemaking,\6\
DOI explained that ``[t]he Department believes that codifying the
procedures in regulations that are consistent with NEPA and the CEQ
regulations will provide greater visibility to that which was
previously contained in the [Department Manual] DM and enhance
cooperative conservation by highlighting opportunities for public
engagement and input in the NEPA process.'' 73 FR 61292. DOI retained
additional explanatory guidance (as distinguished from agency
implementing procedures) in the Department Manual and other
Departmental guidance documents. Bureaus and offices (bureaus) of the
Department continue to maintain Department Manual chapters in part 516
specific to their programs which supplement the DOI NEPA implementing
procedures.
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\6\ 73 FR 126 (Jan. 2, 2008).
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E.O. 14154 directs all agencies to prioritize efficiency and
certainty over any other objectives and avoid and minimize delays and
ambiguity in the permitting process. DOI's internal procedures and
policies to guide compliance with NEPA will better advance the
priorities articulated in E.O. 14154 and provide for quicker updates in
policy implementation for bureaus to use than will retaining the NEPA
implementing regulations. Consolidating procedures with many other
policies and guidance will also provide additional public transparency.
Moreover, DOI has decided that the flexibility to respond to new
developments in this fast-evolving area of law, afforded by using non-
codified procedures, outweighs the appeal of maintaining its NEPA
procedures as regulations going forward. Notably, in this digitized
age, while DOI codified its procedures as regulations, in part, to
provide ``greater visibility'' to the public, DOI can--and will--ensure
such visibility simply by posting these procedures online, which
removes the upside of codification. By contrast, not maintaining its
procedures as regulations will enable it to rapidly update these
procedures in response to future court decisions (such as Seven County)
or Presidential directives (such as E.O. 14154). The balance thus tips
decisively toward using a non-regulatory, but publicly accessible,
procedural document. Because rescinding DOI's existing regulations
without simultaneously adopting a replacement would likely cause
uncertainty among regulated parties, the new procedures that DOI adopts
today have informed its decision to rescind most of its prior
regulations.
DOI's new NEPA implementing procedures are a more faithful
implementation of the statute as amended in 2023 than its old
procedures. They implement major structural features of the 2023
amendments, such as deadlines and page limits for environmental
assessments and environmental impact statements, as directed at NEPA
Section 107(g), and provide that DOI will complete preparation of these
documents within the maximum length and on the timeline that Congress
intends. They incorporate Congress's definition of ``major Federal
action'' and the exclusions thereto, as codified at NEPA Section
111(10). They incorporate Congress's mandated procedure for determining
the appropriate level of review under NEPA, as codified in NEPA Section
106. And they incorporate Congress's revision to the requirements for
what an agency must address in its environmental impact statements, as
codified at NEPA Section 102(2)(C), and Congress's requirement that
public notice and solicitation of comment be provided when issuing a
notice of intent to prepare an environmental impact statement, as
directed at NEPA Section 107(c). All of these are crucial features of
Congress's policy design and its purpose in the 2023 amendments that
NEPA review be more efficient and certain.
Moreover, all of these respond to the President's directive in E.O.
14154; and all of these reflect the Supreme Court's recent and
unequivocal statement that NEPA is a purely procedural statute. DOI is
conscious of the Supreme Court's admonition that NEPA review has grown
out of all proportion to its origins as a ``modest procedural
requirement,'' creating, ``under the guise of just a little more
process,'' ``[d]elay upon delay, so much so that the process seems to
`borde[r] on the Kafkaesque.' '' Seven County, 145 S. Ct. at 1513-14
(internal quotation omitted). These procedures, therefore, attempt to
align NEPA with its Congressionally mandated dimensions, reflecting the
guidance given also by the President and the Supreme Court, and making
review under it faster, more flexible, and more efficient.
In reaching this decision, DOI acknowledges that third parties may
claim to have reliance interests in DOI's existing NEPA procedures. But
revised agency procedures will have no effect on ongoing NEPA reviews,
where DOI, following CEQ guidance, will continue to apply the
preexisting procedures to applications that are sufficiently advanced.
Moreover, as the Supreme Court has just explained, NEPA ``is a purely
procedural statute'' that ``imposes no substantive environmental
obligations or restrictions.'' Seven County, 145 S. Ct. at 1507. To the
extent any asserted reliance interests are grounded in substantive
environmental concerns, such interests are entitled to ``no. . .
weight.'' Dep't of Homeland Sec. v. Regents of the Univ. of California,
140 S. Ct. 1891, 1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
procedures. To the extent such interests exist, the Department holds
that they are ``outweigh[ed]'' by ``other interests and policy
concerns.'' Id. Namely, the complex web of regulations that preexisted
the 2023 amendments to NEPA and these new procedures repeatedly ``led
to more agency analysis of separate projects, more consideration of
attenuated effects, more exploration of alternatives to proposed agency
action, more speculation and consultation and estimation and
litigation,'' which in turn has meant that ``[f]ewer projects make it
to the finish line,'' or even ``to the starting line.'' Seven County,
145 S. Ct. at 1513-14. This has increased the cost of projects
dramatically, ``both for the agency preparing the EIS and for the
builder of the project,'' resulting in systemic harms to America's
infrastructure and economy. Id. Correspondingly, the wholesale revision
and simplification of this regime, effectuated by the revision of DOI's
NEPA procedures and relocation of them to the Department of the
Interior Handbook: National Environmental Policy Act Implementing
Procedures, is necessary to ensure efficient and predictable reviews,
with significant upsides for the economy and for projects of all sorts.
This set of policy considerations drastically outweighs any claimed
reliance interests in the preexisting procedures.
[[Page 29501]]
DOI has revised its NEPA implementing procedures to conform to the
2023 statutory amendments, to respond to President Trump's direction in
E.O. 14154, and to address the pathologies of the NEPA process and NEPA
litigation identified by the Supreme Court.
Where DOI has retained an aspect of its preexisting NEPA
implementing procedures, it is because that aspect is compatible with
these guiding principles; where DOI has revised or removed an aspect,
it is because that aspect is not compatible.
II. Discussion of Regulatory Changes
A. Removing NEPA Procedures From Regulation
NEPA requires that all Federal agencies identify and develop
methods and procedures, in consultation with CEQ, that will ensure that
unquantified environmental amenities and values may be given
appropriate consideration in decision-making along with economic and
technical considerations. 42 U.S.C. 4332(2)(B). The statutory
amendments to NEPA under the FRA also refer to agency NEPA
procedures.\7\ Federal agencies have developed varying forms of NEPA
implementing procedures, some in regulation and some in other forms of
procedural documents. DOI's revised NEPA procedures, developed in
consultation with CEQ and in coordination with other Federal agencies
for consistency across the Federal government, will facilitate
compliance with the statutory obligations of NEPA.
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\7\ 42 U.S.C. 4336a(f), 4336c.
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B. Retaining and Revising Certain Provisions
The rule removes most of the existing DOI NEPA regulations in favor
of relying on Departmental guidance for the reasons discussed above,
but the rule retains and makes targeted updates to its regulations that
authorize three tools that DOI bureaus may rely on to expedite NEPA
reviews and ensure that compliance with NEPA is achieved in an
efficient manner.
1. Emergency Responses
First, DOI is retaining 43 CFR 46.150, which allows bureaus to
respond to emergencies while either forgoing NEPA analysis so as to
allow the bureau to take actions ``urgently needed to mitigate harm to
life, property, or important natural, cultural, or historic resources''
and use alternative arrangements for NEPA compliance to take other
actions beyond those immediately necessary to protect life, property,
and resources in response to emergencies. The rule makes minor
clarifying adjustments to the text that reflect DOI's experience
implementing these provisions. The adjustments do not change the
meaning of the provisions.\8\
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\8\ Executive Order 14156, Declaring a National Energy Emergency
(Jan. 20, 2025); Secretary's Order 3417, Addressing the National
Energy Emergency (Feb. 3, 2025).
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2. Categorical Exclusions
Next, DOI is retaining 43 CFR 46.205, 46.210, and 46.215, which
establish Departmental categorical exclusions and lay out the
procedures for relying on a categorical exclusion to comply with NEPA.
Categorical exclusions represent those categories of actions that DOI
has determined normally do not significantly affect the environment.
Categorical exclusions provide important efficiency by ensuring that
many agency actions are not subjected to the lengthy NEPA process and
can proceed using the significantly truncated process identified in the
DOI NEPA regulations for determining that a categorical exclusion
applies and ensuring that no ``extraordinary circumstances'' are
present that would preclude reliance on the categorical exclusion.
Section 46.210 will continue to identify Departmental categorical
exclusions while additional, bureau-specific categorical exclusions are
identified in guidance documents.
Although DOI is largely retaining these provisions in regulation,
the rule revises them to eliminate from the regulations certain
categorical exclusions that are not used across the Department and to
refine certain other extraordinary circumstances that, when present,
would preclude reliance on a categorical exclusion. Section 46.205
includes new paragraphs (e), (f), (g), (h), (i), and (j) providing how
DOI bureaus may rely on categorical exclusion determinations made by
other agencies, may apply multiple categorical exclusions to a single
action, and may rely on a categorical exclusion administratively
established or adopted by another DOI bureau; the procedures governing
the establishment, modification, or removal of categorical exclusions
from NEPA procedures; and the clarification that any such
establishment, modification, or removal does not itself have any
environmental effects for purposes of NEPA. In Section 46.210, the rule
removes paragraphs (k) and (l), which describe categorical exclusions
for hazardous fuels reduction activities using prescribed fire and
post-fire rehabilitation activities, respectively. These categorical
exclusions will continue to be identified in bureau-specific NEPA
procedures, and those bureaus may then continue to rely on them for
purposes of NEPA compliance, but they are not properly considered
Departmental categorical exclusions.
In Section 46.215, which lists the ``extraordinary circumstances''
that, if present preclude reliance on a categorical exclusion, the rule
removes existing paragraphs (c), (i), and (j), and then renumbers the
remaining paragraphs. Paragraph (c) provides that an extraordinary
circumstance is present if an action may ``[h]ave highly controversial
environmental effects or involve unresolved conflicts concerning
alternative uses of available resources.'' 43 CFR 46.215(c). This
provision causes confusion as it has been frequently misunderstood to
mean that any controversy surrounding the substance of the action
itself constitutes an extraordinary circumstance. The provision is
intended only to provide that controversy about the nature and
magnitude of the environmental effects of the action constitutes an
extraordinary circumstance. In any event, the concept is sufficiently
addressed in existing paragraph (d) (which this rule renumbers as
paragraph (c)).
Paragraph (i) provides that an extraordinary circumstance is
present if an action may ``[v]iolate a Federal law, or a State, local,
or tribal law or requirement imposed for the protection of the
environment.'' 43 CFR 46.215(i). Whether a proposed Federal action may
violate a law imposed for the protection of the environment is a
question that goes beyond the procedural requirements of NEPA and may
be better considered and appropriately addressed by the Responsible
Officer when making the decision on the proposed action. While a
proposed action's inconsistency with such a law should be appropriately
considered in the agency decision-making process--and may suggest that
that the proposed action should not be approved--it is not relevant to
the determination of whether the proposed action may have significant
environmental effects.
Paragraph (j) was promulgated in response to E.O. 12898, Federal
Actions To Address Environmental Justice in Minority Populations and
Low-Income Populations (Feb. 11, 1994). That E.O. was rescinded by E.
O. 14173, Ending Illegal Discrimination and Restoring Merit-Based
Opportunity (Jan. 21, 2025). Therefore, it is appropriate to remove the
associated provision in Section 46.215.
[[Page 29502]]
In addition, all references to E.O.s in the DOI list of
extraordinary circumstances are removed. These E.O.s could change over
time or could unduly limit the review of the resources listed, not
allowing for more relevant information to be considered in the
extraordinary circumstances review for a proposed action.
3. Applicant- and Contractor-Prepared Environmental Documents
Finally, DOI is retaining and revising Section 46.105 and adding
Section 46.107, which set standards and procedures that apply when DOI
bureaus hire contractors to prepare environmental assessments,
environmental impact statements, or other environmental information; or
rely on applicants to prepare environmental information, including
environmental assessments or environmental impact statements. The FRA
provides that agencies may develop procedures to allow for the
preparation of environmental assessments and environmental impact
statements by applicants for Federal approvals. DOI already has a
regulation allowing for bureaus to rely on applicant-prepared
environmental assessments. The revisions made by this rule would extend
that allowance to applicant-prepared environmental impact statements
while also adding standards and procedures to ensure that the process
for using applicant-prepared environmental assessments and
environmental impact statements is both efficient and legally
defensible. For similar reasons, additional standards and procedures
have been added to the regulation governing bureau use of environmental
information or documents prepared by contractors engaged directly by
the bureaus.
III. Basis for Issuing an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
DOI is repealing its prior regulations that establish procedures
and practices for implementing NEPA, a ``purely procedural statute''
which ``simply prescribes the necessary process' for an agency's
environmental review of a project''--a review that is, even in its most
rigorous form, ``only one input into an agency's decision and does not
itself require any particular substantive outcome.'' Seven County, 145
S. Ct. at 1507, 1511 (internal quotation omitted). ``NEPA imposes no
substantive constraints on the agency's ultimate decision to build,
fund, or approve a proposed project,'' and ``is relevant only to the
question of whether an agency's final decision''--i.e., that decision
to authorize, fund, or otherwise carry out a particular proposed
project or activity--``was reasonably explained.'' Id. at 1511. As
such, notice and comment procedures are not required because this
revision falls within the APA exception for ``rules of agency
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). DOI's
existing NEPA regulations do not dictate what actions to take or
policies to adopt. Rather, they prescribe how bureaus should conduct
their NEPA reviews: detailing the application of NEPA, timing of
environmental impact statements, and specifying other procedural
requirements.\9\ These are procedural provisions, not substantive
environmental ones, and they apply exclusively to internal DOI
processes. And because procedural rules do not require notice and
comment, absent a specific provision of law requiring such procedures,
they do not require notice and comment to be rescinded. See 5 U.S.C.
553(b)(A). Indeed, DOI recognized as much even when initially
promulgating them: DOI was explicit that the department was codifying
its procedures because it ``believes that codifying the procedures in
regulations that are consistent with NEPA and the CEQ regulations will
provide greater visibility to that which was previously contained in
the DM and enhance cooperative conservation by highlighting
opportunities for public engagement and input in the NEPA process.'' 73
FR 61292.
---------------------------------------------------------------------------
\9\ See 43 CFR part 46.
---------------------------------------------------------------------------
Just so, DOI's new procedures will also be purely procedural and
guide internal agency compliance with NEPA. Indeed, it is hard to see
how they could be otherwise, since the Supreme Court has recently
repeatedly emphasized that ``NEPA is a purely procedural statute.''
Seven County, 145 S. Ct. at 1507; see id. at 1510 (``NEPA is purely
procedural. . . . NEPA `does not mandate particular results, but simply
prescribes the necessary process' for an agency's environmental review
of a project.''); id. at 1511 (NEPA is a purely procedural statute'');
id. at 1513 (NEPA is properly understood as ``a modest procedural
requirement''); id. at 1514 (``NEPA's status as a purely procedural
statute''); see also id. at 1507 (``Simply stated, NEPA is a procedural
cross-check, not a substantive roadblock.''). Procedures for
implementing a purely procedural statute must be, by their nature,
procedural rules. Surely, they cannot be legislative rules; as such,
they do not need to be promulgated via notice-and-comment rulemaking.
See 5 U.S.C. 553(b)(A). And even if that were not universally true, the
new rules adopted in this notice are purely procedural.
Moreover, even if (and to the extent that) DOI's regulations were
not procedural rules, they may be characterized as interpretative rules
or general statements of policy under 5 U.S.C. 553(b)(A). An
interpretative rule provides an interpretation of a statute, rather
than making discretionary policy choices that establish enforceable
rights or obligations for regulated parties under delegated
congressional authority. The definitions sections of both the old and
new procedures, for instance, may be classified as such. General
statements of policy provide notice of an agency's intentions as to how
it will enforce statutory requirements, again without creating
enforceable rights or obligations for regulated parties under delegated
congressional authority. The prefatory sections of both the old and new
procedures, for instance, may be classified as general statements of
policy. Both of these types of agency action are expressly exempted
from notice and comment by statute. 5 U.S.C. 553(b)(A), and so do not
require notice and comment for their removal.
Accordingly, although DOI is voluntarily providing notice and an
opportunity to comment on this interim final rule, the agency has
determined that notice-and-comment procedures are not required. The
fact that DOI previously undertook notice-and-comment rulemaking in
promulgating these regulations is immaterial: As the Supreme Court has
held, where notice-and-comment procedures are not required, prior use
of them in promulgating a rule does not bind the agency to use such
procedures in repealing it. Perez v. Mortg. Bankers Ass'n, 575 U.S. 92,
101 (2015).
B. DOI Has Good Cause for Proceeding With an Interim Final Rule.
Moreover, DOI also finds that, to the extent that prior notice and
solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing regulations satisfies the ``good cause''
exceptions in 5 U.S.C. 553(b)(B) and (d). 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 in Sections I &
[[Page 29503]]
II, above, DOI's prior rules were promulgated as a ``supplement . . .
to be used in conjunction with,'' 43 CFR 46.20, CEQ's NEPA regulations.
Following the rescission of CEQ's regulations, DOI's current rules are
left hanging in air, supplementing a NEPA regime that no longer exists.
DOI, thus far and as a temporary, emergency measure, has been
continuing to operate under its prior procedures as if the CEQ NEPA
regime still existed. This is not, however, tenable. As soon as updated
non-regulatory procedures were available--which they are now--Interior
must immediately rescind its duplicative or inconsistent regulations
that compose this makeshift regime.
For the same reasons stated in the present section, above, DOI
finds that ``good cause'' exists under 5 U.S.C.Sec. 553(d)(3) to forgo
the 30-day delay of the effective date that would otherwise be required
to rescind regulations in their entirety. This interim final rule and
the new procedural document that accompanies it will accordingly be
effective immediately.
C. DOI Solicits Comment
As explained above, comment is not required because DOI's NEPA
procedures were and are procedural and because, even if comment were
otherwise required under the APA, good cause exists to forgo it.
Nevertheless, DOI has elected voluntarily to solicit comment. DOI is
soliciting comment on this interim final rule and its new procedures,
which are available for review at <a href="http://www.regulations.gov">www.regulations.gov</a>, docket number
2025-0004. DOI may make further revisions to its NEPA implementing
procedures, if DOI's review of any comments submitted suggests that
further revisions are warranted. Commenters have 30 days from the date
of publication of this interim final rule to submit comments.
IV. Regulatory Analyses and Notices
A. 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 interim final rule is a significant regulatory
action under E.O. 12866, as supplemented by E.O. 13563, and has
reviewed.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et
seq., and E.O. 13272 generally require agencies to assess the impacts
of final rules on small entities by preparing a regulatory flexibility
analysis. Under the RFA, small entities include small businesses, small
organizations, and small governmental jurisdictions. The RFA applies
only to rules for which an agency is required to first publish a
proposed rule. See 5 U.S.C. 603(a) and 604(a). As the Department is not
required to publish a notice of proposed rulemaking for this interim
final rule, the RFA does not apply.
Even if the RFA applies, this 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, DOI hereby
certifies that this interim final rule will not have a significant
economic impact on a substantial number of small entities.
C. Environmental Analysis
DOI has determined that the rule will not have a significant effect
on the environment because it will not authorize any specific agency
activity or commit resources to a project that may affect the
environment. Therefore, DOI does not intend to conduct a NEPA analysis
of this interim final rule. In addition, DOI has determined that its
categorical exclusion (CE) at 43 CFR 46.210(i) covers this rulemaking.
The CE covers policies, directives, regulations, and guidelines that
are ``of an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case.''
Further, the proposed rule does not implicate any of the extraordinary
circumstances listed in 43 CFR 46.215.
D. Executive Order 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.
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.
This interim final rule does not have federalism implications because
it applies to Federal agencies, not States.
E. Executive Order 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. 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. This interim final rule is not a
regulatory policy that has Tribal implications because it does not
impose substantial direct compliance costs on Tribal governments
(section 5(b)) and does not preempt Tribal law (section 5(c)).
F. Executive Order 13211, 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. 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.
G. Executive Order 12988, Civil Justice Reform
Under section 3(a) of E.O. 12988, agencies must review their
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 for review to
ensure compliance with section 3(a). DOI has conducted this review and
determined that this interim final rule complies with the requirements
of E.O. 12988.
H. Unfunded Mandates Assessment
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 one year, an agency must
prepare a written statement that assesses the effects on State, Tribal,
and local governments and the private sector. 2
[[Page 29504]]
U.S.C. 1532. This interim final rule applies to Federal agencies and
would not result in expenditures of $100 million or more by State,
Tribal, and local governments, in the aggregate, or the private sector
in any one year. This action also does not impose any enforceable duty,
contain any unfunded mandate, or otherwise have any effect on small
governments.
I. 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 43 CFR Part 46
Environmental protection; Environmental impact statements.
Karen Budd-Falen,
Associate Deputy Secretary.
0
For the reasons stated in the preamble, under the authority of NEPA, as
amended (42 U.S.C. 4321-4347), the Office of the Secretary revises part
46 of title 43 of the Code of Federal Regulations to read as follows:
PART 46--IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF
1969
Sec.
Subpart A--[Reserved]
Subpart B--Protection and Enhancement of Environmental Quality
46.105 Using a bureau-directed contractor to prepare environmental
documents.
46.107 Procedures for applicant-prepared environmental impact
statements and environmental assessments.
46.150 Emergency responses.
Subpart C--Initiating the NEPA Process
46.205 Actions categorically excluded from further NEPA review.
46.210 Listing of Departmental categorical exclusions.
46.215 Categorical exclusions: Extraordinary circumstances.
Subpart D--[Reserved]
Subpart E--[Reserved]
Authority: 42 U.S.C. 4321-4347
Subpart A--[Reserved]
Subpart B--Protection and Enhancement of Environmental Quality
Sec. 46.105 Using a bureau-directed contractor to prepare
environmental documents.
(a) A Responsible Official may use a bureau-directed contractor to
prepare any environmental document.
(b) If a Responsible Official uses a bureau-directed contractor,
the Responsible Official remains responsible for:
(1) Preparation and adequacy of the environmental documents; and
(2) Independent evaluation of the environmental documents after
their completion. The Responsible Official must briefly document the
bureau's evaluation of the environmental document and ensure that it
meets the standards under NEPA, this Part, and any Departmental or
bureau-specific procedures or guidance.
(c) The Responsible Official shall require any bureau-directed
contractor preparing an environmental document to submit a professional
integrity statement certifying that the environmental document is
prepared with professional and scientific integrity, using reliable
data and resources, and meets bureau needs for decision-making. In
addition, the Responsible Official shall require any bureau-directed
contractor preparing an environmental document to submit a disclosure
statement specifying that the contractor has no financial or other
interest in the outcome of the action.
Sec. 46.107 Procedures for applicant-prepared environmental impact
statements and environmental assessments.
In accordance with NEPA section 107(f), 42 U.S.C. 4336a(f), the
following procedures are established for bureaus to allow applicants,
or contractors directed by applicants, to prepare environmental impact
statements and environmental assessments under bureau supervision when
the bureau is the Federal lead agency.
(a) A Responsible Official has discretion to allow an applicant or
applicant-directed contractor to prepare an environmental impact
statement or an environmental assessment (including analysis supporting
these documents). A bureau may request more information, revise
analysis methodologies, or choose not to use an environmental impact
statement or an environmental assessment prepared by an applicant or
its contractor at any time.
(b) Applicants or applicant-directed contractors may not prepare
decision documents, including records of decision.
(c) The Responsible Official remains responsible for the accuracy,
scope, and content of the environmental impact statement or
environmental assessment and must independently evaluate and approve
each such analysis before the bureau may use it. To maintain the
scientific quality and integrity of the impact assessment, if in-house
expertise is not available for the technical evaluations, another
bureau or cooperating agency may be used, as needed, to verify the
analyses if potential significance of an effect or issue is not clear.
(d) Prior to a Responsible Official initiating the preparation of
an environmental impact statement or an environmental assessment
proposed to be prepared by an applicant or an applicant-directed
contractor, the bureau must engage with the applicant and provide
written documentation outlining the bureau's expectations regarding
roles, responsibilities, the project schedule, coordination,
deliverables (including draft and final documents), and supervision.
Such engagement must occur within 30 days of the date initiating the
preparation of an environmental impact statement or an environmental
assessment.
(e) If a Responsible Official uses information from an applicant or
applicant-directed contractor to prepare an environmental impact
statement or environmental assessment, the bureau must independently
evaluate and provide written concurrence to the applicant or applicant-
directed contractor documenting that the information submitted meets
the standards under NEPA, this Part, and any Departmental or bureau-
specific NEPA procedures or guidance. If a Responsible Official uses
any of the following information prepared by an applicant or applicant-
directed contractor in initiating a review, such information must be
submitted in writing to the Responsible Official for independent
evaluation prior to initiating the NEPA process:
(1) The purpose and need for the proposed action;
(2) The proposed action and reasonable alternatives to the proposed
action;
(3) A community and stakeholder engagement plan;
(4) Anticipated permits and authorizations required for the
proposed action;
(5) Anticipated cooperating agencies;
(6) The process for consultations with relevant Federal agencies
and State, Tribal, and local governments to ensure compliance with
environmental laws and regulations.
(7) Anticipated issues and resources to be analyzed in the
environmental impact statement or environmental assessment, and summary
of analysis methodology, as applicable; and
(8) Schedule.
(f) If a Responsible Official uses an environmental impact
statement or environmental assessment prepared by
[[Page 29505]]
an applicant or applicant-directed contractor, the Responsible Official
must independently evaluate and verify that the environmental analysis,
including the methodologies used by the applicant or applicant-directed
contractor, meets bureau standards and complies with NEPA, this Part,
and any applicable Departmental or bureau-specific NEPA procedures or
guidance. The applicant or applicant-directed contractor must provide
the bureau with all relevant supporting information, including all
studies, surveys, and technical reports pertaining to the environment
prepared by the applicant or applicant-directed contractor for the
proposed action. The applicant or applicant-directed contractor must
certify that the materials provided to the bureau are complete for the
bureau's independent review and inclusion in its decision file. The
Responsible Official shall document the bureau's review and
determination in any bureau-approved environmental impact statement or
environmental assessment. The bureau is responsible for publishing all
environmental impact statements and environmental assessments and, if
an action is administratively or judicially challenged, for using the
materials in its decision file to prepare an administrative record.
(g) The Responsible Official shall require any applicant or
applicant-directed contractor preparing an environmental impact
statement or environmental assessment to submit a professional
integrity statement certifying that the environmental analysis is
prepared with professional and scientific integrity, using reliable
data and resources, and meets any relevant Federal information quality
standards and bureau needs for decision-making. In addition, the
Responsible Official shall require any applicant or applicant-directed
contractor preparing an environmental impact statement or an
environmental assessment to submit a disclosure statement specifying
any financial or other interest the entity has in the outcome of the
action.
Bureaus must publish or otherwise provide bureau-specific policy
information to assist applicants preparing environmental impact
statements or environmental assessments. Bureaus may provide additional
guidance to Responsible Officials describing how to document the
independent evaluation of environmental impact statements and
environmental assessments to ensure that they meet the standards under
NEPA and these implementing procedures.
Sec. 46.150 Emergency responses.
This section applies only if the Responsible Official determines
that an emergency exists that makes it necessary to take urgently
needed actions before preparing an environmental document or
documenting its use of a categorical exclusion in accordance with the
provisions in this chapter.
(a) The Responsible Official may take those actions necessary to
control the immediate impacts of the emergency that are urgently needed
to mitigate harm to life, property, or important natural, cultural, or
historic resources. When taking such actions, the Responsible Official
shall consider the probable environmental consequences of these actions
and mitigate reasonably foreseeable adverse environmental impacts to
the extent practicable.
(b) The Responsible Official shall document in writing the
determination that an emergency exists and describe the responsive
actions taken at the time the emergency exists. The form of that
documentation is within the discretion of the Responsible Official.
(c) If the Responsible Official determines that the nature and
scope of proposed actions that must be taken beyond actions noted in
paragraph (a) of this section but in response and relation to such
emergency action preclude preparation of an environmental document, the
Responsible Official must consult with the Office of Environmental
Policy and Compliance about alternative arrangements for NEPA
compliance for such additional responsive actions. The Assistant
Secretary, Policy Management and Budget may authorize the use of
alternative arrangements. Reliance on any such alternative arrangements
shall apply only to the proposed actions necessary to control the
immediate actions in response and related to the emergency beyond those
noted in paragraph (a) of this section and must be documented.
Consultation with the Office of Environmental Policy and Compliance and
with the Assistant Secretary, Policy Management and Budget must be
coordinated through the appropriate bureau headquarters.
(d) For actions meeting the criteria noted in paragraph (c) of this
section that the Responsible Official reasonably foresees would be
likely to result in significant effects, the Assistant Secretary,
Policy Management and Budget or their designee must consult with the
Council on Environmental Quality prior to authorizing the use of
alternative arrangements for compliance with NEPA section 102(2)(C), 42
U.S.C. 4332(2)(C).
(e) Other proposed actions remain subject to compliance with NEPA
and the remaining sections of this Part.
Subpart C--Initiating the NEPA Process
Sec. 46.205 Actions categorically excluded from further NEPA review.
Categorical Exclusion means a category of actions that a bureau has
determined normally do not significantly affect the quality of the
human environment.
(a) Except as provided in paragraph (c) of this section, if an
action is covered by a Departmental categorical exclusion, the bureau
is not required to prepare an environmental assessment or an
environmental impact statement. If a proposed action does not meet the
criteria for any of the listed Departmental categorical exclusions or
any of the individual bureau categorical exclusions, then the proposed
action must be analyzed in an environmental assessment or environmental
impact statement.
(b) The actions listed in Sec. 46.210 are categorically excluded,
Department-wide, from preparation of environmental assessments or
environmental impact statements.
(c) DOI has provided for extraordinary circumstances in which a
normally excluded action may have a significant environmental effect
and require additional analysis. Section 46.215 lists the extraordinary
circumstances under which actions otherwise covered by a categorical
exclusion require analyses under NEPA.
(1) Any action that is normally categorically excluded must be
evaluated to determine whether it meets any of the extraordinary
circumstances in Sec. 46.215; if it does, further analysis and
environmental documents must be prepared for the action.
(2) Bureaus must work within existing administrative frameworks,
including any existing programmatic agreements, when deciding how to
apply any of the Sec. 46.215 extraordinary circumstances.
(d) Congress may establish categorical exclusions by legislation,
in which case the terms of the legislation determine how to apply those
categorical exclusions.
(e) A Responsible Official may rely on another agency's
determination that a categorical exclusion applies to a particular
proposed action if the action covered by that determination and the
bureau proposed action are substantially the same. The Responsible
Official need not conduct extraordinary circumstances review according
to the protocol set forth at Sec. 46.215 but must
[[Page 29506]]
document any reliance on another agency's categorical exclusion
determination. When more than one agency is reviewing a proposed
action, a bureau may also reach and document a joint determination with
another agency that a categorical exclusion applies to the action.
(f) Applying multiple categorical exclusions. Bureaus may apply
multiple categorical exclusions in combination to cover a single
proposed action. In some circumstances, the combination of categorical
exclusions can cover all elements of a proposed action and support the
bureau's determination that the effects of the proposed action, with
all its elements, are not reasonably foreseeably to be significant.
When a bureau completes its review of a proposed action in reliance on
multiple categorical exclusions, the bureau must concisely document
this reliance, including review for the presence of extraordinary
circumstances that, if present, would preclude application of the
categorical exclusions to the proposed action.
(g) Each bureau may rely on any categorical exclusion
administratively established or adopted, under NEPA section 109, 42
U.S.C. 4336c, by the Department or any bureau within the Department.
(h) To establish or revise a categorical exclusion, the Department
will determine that the action is of a type that normally does not
significantly affect the quality of the human environment. In making
this determination and identifying and describing such a category, the
Department will:
(1) Develop a written record containing information to substantiate
its determination;
(2) Consult with the Council on Environmental Quality on its
proposed categorical exclusion, including the written record, for a
period not to exceed 30 days prior to providing public notice as
described in subparagraph (3); and
(3) Provide public notice in the Federal Register of establishment
of the categorical exclusion and the location of availability of the
written record.
(i) Removal of categorical exclusions. To remove a categorical
exclusion from its NEPA procedures, the Department will follow steps
similar to those by which it establishes or revises a categorical
exclusion.
(j) Neither the establishment nor the modification or removal of a
categorical exclusion from bureau NEPA procedures is subject to NEPA
review.
Sec. 46.210 Listing of Departmental categorical exclusions.
The following actions are categorically excluded under Sec.
46.205(b), unless any of the extraordinary circumstances in Sec.
46.215 apply and reliance on any of them to support approval of a
proposed action need not be documented:
(a) Personnel actions and investigations and personnel services
contracts.
(b) Internal organizational changes and facility and bureau
reductions and closings.
(c) Routine financial transactions including such things as
salaries and expenses, procurement contracts (e.g., in accordance with
applicable procedures and Executive Orders for sustainable or green
procurement), guarantees, financial assistance, income transfers,
audits, fees, bonds, and royalties.
(d) Departmental legal activities including, but not limited to,
such things as arrests, investigations, patents, claims, and legal
opinions. This does not include bringing judicial or administrative
civil or criminal enforcement actions which are outside the scope of
NEPA.
(e) Nondestructive data collection, inventory (including field,
aerial, and satellite surveying and mapping), study, research, and
monitoring activities.
(f) Routine and continuing government business, including such
things as supervision, administration, operations, maintenance,
renovations, and replacement activities having limited context and
intensity (e.g., limited size and magnitude or short-term effects).
(g) Management, formulation, allocation, transfer, and
reprogramming of the Department's budget at all levels. (This does not
exclude the preparation of environmental documents for proposals
included in the budget when otherwise required.)
(h) Legislative proposals of an administrative or technical nature
(including such things as changes in authorizations for appropriations
and minor boundary changes and land title transactions) or having
primarily economic, social, individual, or institutional effects; and
comments and reports on referrals of legislative proposals.
(i) Policies, directives, regulations, and guidelines: that are of
an administrative, financial, legal, technical, or procedural nature;
or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case.
(j) Activities which are educational, informational, advisory, or
consultative to other agencies, public and private entities, visitors,
individuals, or the general public.
Sec. 46.215 Categorical exclusions: Extraordinary circumstances.
Extraordinary circumstances (see Sec. 46.205(c)) exist for
individual actions within categorical exclusions that may meet any of
the criteria listed in paragraphs (a) through (i) of this section.
Applicability of extraordinary circumstances to categorical exclusions
is determined by the Responsible Official. If an extraordinary
circumstance is not present, the Responsible Official may determine
that the categorical exclusion applies to the proposed action and
conclude review.
(a) Have significant impacts on public health or safety.
(b) Have significant impacts on such natural resources and unique
geographic characteristics as historic or cultural resources; park,
recreation or refuge lands; wilderness areas; wild or scenic rivers;
national natural landmarks; sole or principal drinking water aquifers;
prime farmlands; wetlands; floodplains; national monuments; migratory
birds; and other ecologically significant or critical areas.
(c) Have highly uncertain and potentially significant environmental
effects or involve unique or unknown environmental risks.
(d) Establish a precedent for future action or represent a decision
in principle about future actions with potentially significant
environmental effects.
(e) Have a direct relationship to other actions that implicate
potentially significant environmental effects.
(f) Have significant impacts on properties listed, or eligible for
listing, on the National Register of Historic Places as determined by
the bureau.
(g) Have significant impacts on species listed, or proposed to be
listed, on the List of Endangered or Threatened Species or have
significant impacts on designated Critical Habitat for these species.
(h) Significantly limit access to and ceremonial use of Indian
sacred sites on Federal lands by Indian religious practitioners or
significantly adversely affect the physical integrity of such sacred
sites.
(i) Contribute to potentially significant effects resulting from
the introduction, continued existence, or spread of noxious weeds or
non-native invasive species known to occur in the
[[Page 29507]]
area or from other actions that promote the introduction, growth, or
expansion of the range of such species (Federal Noxious Weed Control
Act).
Subpart D--[Reserved]
Subpart E--[Reserved]
[FR Doc. 2025-12433 Filed 7-1-25; 2:30 pm]
BILLING CODE 4334-63-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.