Rule2026-11298
Rescission of Procedures for Implementing the National Environmental Policy Act (NEPA)
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
June 5, 2026
Effective
June 5, 2026
Issuing agencies
Advisory Council on Historic Preservation
Abstract
The Advisory Council on Historic Preservation is rescinding its regulations implementing NEPA from the Code of Federal Regulations (CFR). In addition, this interim final rule requests comments on this action.
Full Text
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<title>Federal Register, Volume 91 Issue 108 (Friday, June 5, 2026)</title>
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[Federal Register Volume 91, Number 108 (Friday, June 5, 2026)]
[Rules and Regulations]
[Pages 34159-34161]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11298]
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ADVISORY COUNCIL ON HISTORIC PRESERVATION
36 CFR Part 805
RIN 3010-AA08
Rescission of Procedures for Implementing the National
Environmental Policy Act (NEPA)
AGENCY: Advisory Council on Historic Preservation.
[[Page 34160]]
ACTION: Interim final rule; request for comments.
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SUMMARY: The Advisory Council on Historic Preservation is rescinding
its regulations implementing NEPA from the Code of Federal Regulations
(CFR). In addition, this interim final rule requests comments on this
action.
DATES: This interim final rule is effective on June 5, 2026. Comments
must be received on or before July 6, 2026.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN) number and title, by any of the
following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#90fbf6f1fef9eaeaffd0f1f3f8e0bef7ffe6"><span class="__cf_email__" data-cfemail="e08b86818e899a9a8fa081838890ce878f96">[email protected]</span></a>.
<bullet> Mail: Advisory Council on Historic Preservation, 401 F
Street NW, Suite 308, Washington, DC 20001.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Kelly Fanizzo, General Counsel,
Advisory Council on Historic Preservation, (202) 517-0193,
<a href="/cdn-cgi/l/email-protection#7c171a1d12150606133c1d1f140c521b130a"><span class="__cf_email__" data-cfemail="b5ded3d4dbdccfcfdaf5d4d6ddc59bd2dac3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The Advisory Council on Historic Preservation (ACHP) is an
independent federal agency that promotes the preservation of America's
historic places and advises the President and Congress on national
historic preservation policy (see 54 U.S.C. Chapter 3041). Promulgated
in 1980 to supplement the regulations established by the Council on
Environmental Quality (CEQ), the ACHP's regulations at 36 CFR part 805
set forth the procedures for the ACHP to comply with the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The ACHP rarely
proposes major federal actions that require review under NEPA and,
therefore, rarely utilizes its regulations implementing NEPA at 36 CFR
part 805. The last NEPA document the ACHP developed was an
Environmental Assessment in the late 1990s for its Section 106
rulemaking to revise and update 36 CFR part 800, which concluded in a
Finding of No Significant Impact (see 64 FR 27044; May 18, 1999). The
ACHP is now rescinding its regulations implementing NEPA at 36 CFR part
805. The ACHP may determine at a later date that internal NEPA
procedures would be useful for the rare occasion it proposes a major
federal action and, if so, the ACHP may develop such procedures.
On January 20, 2025, the President issued Executive Order (E.O.)
14154, Unleashing American Energy (90 FR 8353), revoking E.O. 11991,
Relating to Protection and Enhancement of Environmental Quality (42 FR
26967; May 24, 1977) and directing the CEQ to propose rescinding its
National Environmental Policy Act (NEPA) regulations (40 CFR part
1500). CEQ subsequently rescinded its NEPA regulations (90 FR 10610;
February 25, 2025) and also issued a memorandum, dated February 19,
2025, providing guidance to agencies on implementing E.O. 14154 and
revising existing agency NEPA procedures.
The ACHP is taking this action because the CEQ rescinded its NEPA
regulations, which the ACHP's NEPA regulations were intended to
supplement and, therefore, the references in the ACHP's regulations are
outdated and obsolete. Congress has amended the NEPA statute twice
since 2023 (see, e.g., the Fiscal Responsibility Act of 2023 (FRA),
Public Law 118-5). In addition, the ACHP's NEPA regulations would have
required revisions to align with the Supreme Court's landmark decision
interpreting NEPA in Seven County, Infrastructure Coalition v. Eagle
County, Colorado, 145 S. Ct. 1497 (2025). Seven County affirms that the
ACHP has broad discretion when conducting NEPA reviews, and that the
central principle of judicial review in NEPA cases is substantial
deference to agencies, including about whether and the extent to which
the agency should consider potential effects in a NEPA review given the
agency's authority and the importance of the issue to the
decisionmaker. These recent changes to the NEPA statute and its
interpretation make it less likely that a future ACHP action would fall
within the statute's scope. Therefore, the ACHP has concluded that
there is no need for the ACHP to establish agency-specific procedures
at this time. As noted above, the ACHP may develop internal NEPA
procedures in the future if necessary and appropriate.
II. Publication as an Interim Final Rule
ACHP has determined that an interim final rule is the appropriate
mechanism to rescind its NEPA implementing regulations at 36 CFR part
805.
The ACHP's NEPA regulations constitute rules of agency procedure
and practice, under the Administrative Procedure Act (APA), and are
subject to the APA exception for ``interpretive rules, general
statements of policy, or rules of agency organization, procedure, or
practice'' (5 U.S.C. 553(b)(A)). Part 805 proscribes procedures for the
ACHP on when to prepare an environmental review document and how to
incorporate the document and review into agency decision-making. The
procedures do not establish any substantive requirements that would
impose binding legal obligations on other parties or members of the
public. Furthermore, the procedures do not dictate any substantive
outcomes and are not legislative rules. As such, neither their
promulgation nor their removal requires notice-and-comment rulemaking.
The fact that the ACHP previously undertook notice-and-comment
rulemaking in promulgating Part 805 (45 FR 4353) does not bind the ACHP
to use such procedures in rescinding it (see Perez v. Mortg. Bankers
Ass'n, 575 U.S. 92, 101 (2015) (holding that 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)).
Additionally, the ACHP has ``good cause'' to rescind Part 805 as an
interim final rule, meeting the APA exception in 5 U.S.C. 553(b)(B).
The APA authorizes agencies to issue regulations without notice and
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)). The ACHP's NEPA regulations were
promulgated to supplement the CEQ's NEPA regulations. When the CEQ
rescinded its NEPA regulations, the ACHP's existing NEPA regulations
ceased to properly function, which has resulted in confusion as to how
the agency should meet its responsibilities under NEPA. Accordingly,
while the ACHP is not required under the APA's good cause exception to
engage in notice-and-comment rulemaking, the agency has determined that
the most appropriate mechanism to resolve any confusion while still
allowing for public participation, is to issue an interim final rule
providing 30 days for public comment thereafter.
Further, an interim final rule containing all elements required by
the APA for a Notice of Proposed
[[Page 34161]]
Rulemaking, as provided in 5 U.S.C. 553(b)-(d), satisfies the APA's
procedural requirements. This interim final rule contains all of the
APA-required elements for notice-and-comment rulemaking: a reference to
legal authority, as required by 5 U.S.C. 553(b)(2); a description of
the terms and substance of the rule, as required by 5 U.S.C. 553(b)(3);
and a request for public comment, as required by 5 U.S.C. 553(c). The
ACHP finds that an interim final rule is the most appropriate mechanism
to meet both the President's and CEQ's direction and the principles of
public participation in regulatory action.
III. Request for Comments
The ACHP requests and encourages public comments on this interim
final rule. The ACHP will consider the comments it receives and provide
responses in a final rule, with changes, if warranted.
IV. Regulatory Compliance Analysis
A. E.O. 12866, ``Regulatory Planning and Review''
E.O. 12866 directs agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health, and safety effects;
distribution of impacts; and equity). The Office of Management and
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) has
determined that this rulemaking, while not ``economically significant''
under 3(f)(1), is ``significant'' per the other subsections of 3(f).
B. Congressional Review Act (5 U.S.C. 801 et seq.)
OMB OIRA has determined that this rulemaking, if finalized, does
not meet the criteria set forth in 5 U.S.C. 804(2) under Subtitle E of
the Small Business Regulatory Enforcement Fairness Act of 1996 (also
known as the Congressional Review Act).
C. Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
The rule does not contain any information collection requirements
that require the approval of the OMB under the Paperwork Reduction Act
(44 U.S.C. chapter 35).
D. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The ACHP has determined that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
finalized, have a significant economic impact on a substantial number
of small entities. Therefore, the Regulatory Flexibility Act, as
amended, does not require the ACHP to prepare a regulatory flexibility
analysis.
E. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any one year of
$100 million in 1995 dollars, updated annually for inflation. That
threshold is currently approximately $206 million. This rulemaking will
not result in the expenditure by State, local, or Tribal governments,
in the aggregate, or by the private sector, in excess of the threshold.
Thus, no written assessment of unfunded mandates is required.
F. E.O. 13132, ``Federalism''
The ACHP has determined that this action does not contain policies
with federalism or ``takings'' implications as those terms are defined
in E.O. 13132 and E.O. 12630, respectively. This action does not have
federalism implications. It will not 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 action contains no Federal mandates
for State and local Governments and does not impose any enforceable
duties on State and local Governments. This action addresses only
internal ACHP procedures for implementing NEPA.
G. E.O. 13175, ``Consultation and Coordination With Indian Tribal
Governments''
E.O. 13175 establishes certain requirements that an agency must
meet when it promulgates an interim final rule (and subsequent final
rule) that imposes substantial direct compliance costs on one or more
Indian Tribes, preempts Tribal law, or effects the distribution of
power and responsibilities between the Federal Government and Indian
Tribes. This rule will not have a substantial effect on Indian Tribal
Governments.
List of Subjects in 36 CFR Part 805
Environmental impact statements.
PART 805 [REMOVED AND RESERVED]
For the reasons stated in the preamble and under the authority of
54 U.S.C. chapter 3041 and 42 U.S.C. 4332, the Advisory Council on
Historic Preservation removes and reserves 36 CFR part 805.
Travis Voyles,
Vice Chairman, Advisory Council on Historic Preservation.
[FR Doc. 2026-11298 Filed 6-4-26; 8:45 am]
BILLING CODE 4310-K6-P
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</html>Indexed from Federal Register on June 5, 2026.
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