[Federal Register Volume 91, Number 36 (Tuesday, February 24, 2026)]
[Rules and Regulations]
[Pages 8738-8762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-03708]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 46
[267D0102DM; DS6CS00000; DLSN00000.000000; DOI-2025-0004]
RIN 1090-AB18
National Environmental Policy Act Implementing Regulations
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior (Department or DOI) is adopting
the interim final rule (IFR) published on July 3, 2025, with minor
changes, as final. In the IFR, DOI provided a 30-day comment period for
the public to review and make comments. This final rule addresses
public comments and adopts as final the IFR, with certain substantive
changes as explained herein. The IFR partially rescinded DOI's
regulations implementing the National Environmental Policy Act (NEPA)
and made necessary targeted updates to those provisions that were not
repealed. DOI will henceforth maintain the majority of its NEPA
procedures--which apply only to DOI's internal processes--in a
Departmental Handbook separate from the Code of Federal Regulations
(CFR).
DATES: This final rule is effective February 24, 2026.
FOR FURTHER INFORMATION CONTACT: Stephen G. Tryon, Director, Office of
Environmental Policy and Compliance, 202-208-4221,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
DOI is issuing this final rule to adopt as final, subject to the
revisions made by this final rule, the IFR promulgated on July 3, 2025.
The IFR partially rescinded and made other needed, targeted updates to
DOI's regulations, codified at 43 CFR part 46, implementing the
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., as
amended (NEPA). DOI's prior NEPA implementing regulations were
promulgated in 2008 ``as a ``supplement[ ] . . . to be used in
conjunction with'' the Council on Environmental Quality (CEQ)'s NEPA
regulations. 43 CFR 46.20 (2008). 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) (2008).
However, CEQ has now repealed its residual regulations, effective as of
April 11, 2025. See Removal of National Environmental Policy Act
Implementing Regulations, 90 FR 10,610 (February 25, 2025); Final Rule
Removal of National Environmental Policy Act Implementing Regulations,
91 FR 618 (January 8, 2026).
Since DOI's regulations were originally designed to supplement
CEQ's NEPA regulations, DOI awaited CEQ action before revising its own
regulations. See 40 CFR 1507.3(b) (2024); see also 86 FR 34,154 (June
29, 2021). Now that the removal of CEQ's regulations has been finalized
through a final rule issued on January 8, 2026, DOI is issuing a final
rule concurrently with its updated Department of the Interior Handbook:
National Environmental Policy Act Implementing Procedures.
DOI's foundation for the updates to its NEPA procedures is NEPA
itself. Now that CEQ has rescinded its NEPA implementing regulations,
see 91 FR 618 (Jan. 8, 2026) (final rule finalizing removal of CEQ's
NEPA implementing regulations), DOI is issuing this final rule and NEPA
Handbook in compliance with NEPA 102(2)(B), 42 U.S.C. 4332(2)(B), which
directs all agencies of the federal government to identify and develop
methods and procedures, in consultation with CEQ, to conduct the
environmental analysis that NEPA requires.
DOI, in its IFR, rescinded portions of its NEPA implementing
regulations at 43 CFR part 46, while retaining and making targeted
updates to certain provisions. Specifically, DOI retained and made
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).
In response to public comment on the IFR, DOI adds in this final
rule a section on the designation of lead agencies and a section on the
selection of cooperating agencies to codify the procedures by which
Federal agencies and State, local, and Tribal agencies with special
expertise continue to be involved in development of agency NEPA reviews
(43 CFR 46.220 and 46.225, respectively). All other provisions were
removed from 43 CFR part 46, consistent with DOI's IFR. Other than
these few provisions, DOI's procedures are contained in the Department
of the Interior Handbook: National Environmental Policy Act
Implementing Procedures (referred to as DOI NEPA Handbook hereinafter),
which is available in the DOI Electronic Library of the Interior
Policies at https://www.doi.gov/document-library (but which will not be
codified in the CFR). A section-by-section analysis is provided below
highlighting where in the DOI NEPA Handbook concepts originally
addressed in 43 CFR part 46 now appear.
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, 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 Infrastructure Coalition v. Eagle County, Colorado, 605
U.S. 168, 173 (2025). 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
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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 Infrastructure Coalition, 605 U.S. at 173; see also
Department of Transportation v. Public Citizen, 541 U.S. 752, 756-57
(2004). Rather, NEPA requires Federal agencies to consider the
environmental effects of proposed actions as part of agencies'
decision-making processes. As amended by the Fiscal Responsibility Act
of 2023 (FRA), Public Law 118-5 (June 3, 2023), 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. 4336b, and adopt and use another agency's categorical
exclusions. 42 U.S.C. 4336c.
Finally, NEPA requires that ``copies of such [environmental impact
statement] and the comments and views of the appropriate Federal,
State, and local agencies, which are authorized to develop and enforce
environmental standards, shall be made available to the President, the
Council on Environmental Quality and to the public as provided by
section 552 of title 5, United States Code, and shall accompany the
proposal through the existing agency review processes.'' 42 U.S.C.
4332. That is, NEPA provides that the extent to which a statement is
made available to the public is governed by the requirements and
standards of the Federal Freedom of Information Act (FOIA).
B. NEPA Regulations
1. Council on Environmental Quality (CEQ) NEPA Regulations
On January 20, 2025, President Trump issued E.O. 14154, Unleashing
American Energy. 90 FR 8,353 (Jan. 29, 2025). The E.O. revoked E.O.
11991, Relating to protection and enhancement of environmental quality,
42 FR 26,967 (May 25, 1977), which directed CEQ to issue regulations
implementing NEPA and required Federal agencies to comply with those
regulations. E.O. 14154 at sec. 5. 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. 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). CEQ issued an IFR rescinding CEQ's NEPA implementing
regulations (including as they relate to agency NEPA procedures) on
February 25, 2025, effective April 11, 2025, 90 FR 10,610, which CEQ
adopted as final on January 8, 2026, 91 FR 618. E.O. 14154 also directs
the Chairman of CEQ to convene a working group to coordinate the
revision of agency-level NEPA implementing regulations for consistency.
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 Departmental Manual chapters containing NEPA procedures through a
notice-and-comment process required by CEQ NEPA regulations at the time
that involved publication of proposed and final revisions in the
Federal Register (FR), see 40 CFR 1507.3(a) (1978) (rescinded), 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, pursuant to direction in CEQ NEPA
regulations that ``[t]hey shall confine themselves to implementing
procedures'' and through a notice-and-comment process. 40 CFR 1507.3(a)
(2005). DOI explained in the IFR its reasons for transitioning away
from regulations and toward internal procedures, namely to allow DOI
and its bureaus to implement changes in policy more quickly than would
be possible while retaining the NEPA implementing regulations. DOI is
affirming that approach and finalizing its internal procedures in
parallel with issuing this final rule.
DOI's new NEPA implementing procedures more closely align to the
current iteration of the statute than its old procedures. The new
procedures implement major structural features of the 2023 amendments,
such as deadlines and page limits for environmental assessments and
environmental impact statements, as directed at Section 107(g) of NEPA,
and provide that DOI will complete preparation of these documents
within the maximum timeline that Congress intends. They incorporate
Congress's definition of ``major Federal action'' and the exclusions
thereto, as codified at Section 111(10) of NEPA. They incorporate
Congress's mandated procedure for determining the appropriate level of
review under NEPA, as codified in Section 106 of NEPA. And they
incorporate Congress's revision to the requirements for what an agency
must address in its environmental impact statements, as codified at
Section 102(2)(C) of NEPA, 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
Section 107(c) of NEPA. These are all crucial features of Congress's
policy design and its purpose in enacting the 2023 amendments that NEPA
review be more efficient and certain.
These procedures, therefore, attempt to align NEPA with its
Congressionally mandated dimensions, Presidential directives, and
Supreme Court precedent, making review faster, more flexible, and more
efficient.
No third parties have cognizable reliance interests in DOI's
existing NEPA procedures. 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 long held,
and just reaffirmed, NEPA ``is a purely procedural statute'' that
``imposes no substantive environmental obligations or restrictions.''
Seven County Infrastructure Coalition, 605 U.S. at 173; Public Citizen,
541 U.S. at 756; Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 558 (1978). To the extent any asserted reliance interests are
grounded in substantive environmental concerns, such interests are not
entitled to any weight as to this rulemaking, given that DOI's
procedures simply provide the process by which a bureau accounts for
environmental considerations, rather than determining the substantive
policy or decision on an individual application or project. See, e.g.,
Dep't of Homeland Sec. v. Regents of the Univ. of California, 591 U.S.
1, 32 (2020).
DOI provided an opportunity to comment on its IFR and considered
comments in issuing its final rule and DOI NEPA Handbook. Comments were
considered and addressed, which included revising DOI NEPA
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procedures. A summary of comments and responses on the rulemaking are
addressed in section III below.
As explained in the IFR, 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
difficulties associated with the NEPA process and NEPA litigation
identified by the Supreme Court in Seven County Infrastructure
Coalition. 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. After considering public
comments, DOI has adopted the IFR in this final rule, subject to the
revisions explained below.
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. See 42 U.S.C. 4332(2)(B). 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.
B. Retaining and Revising Certain Provisions
The IFR removed most of the existing DOI NEPA regulations in favor
of relying on Departmental guidance for the reasons discussed in the
IFR and summarized above, but the rule retained and made targeted
updates to its regulations that authorize four tools that DOI bureaus
rely on, when appropriate, to expedite NEPA reviews and ensure that
compliance with NEPA is achieved in an efficient manner. The final rule
reaffirms this approach and reserves for Departmental guidance most of
the substance of the provisions from the regulations previously in
place.
1. Emergency Responses
First, DOI retained 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'' or
relying on alternative arrangements for NEPA compliance to take other
actions beyond those immediately necessary to protect life, property,
and resources in response to emergencies. The IFR made minor clarifying
adjustments to the text that reflect DOI's experience implementing
these provisions. The final rule revises 43 CFR 46.150 to clarify that
NEPA's analysis and documentation requirements should not impede timely
execution of actions needed to address imminent threats to life,
property, or important natural, cultural, or historic resources. For
such actions, the responsible official may take such actions without
conducting a NEPA review. The responsible official is directed to take
into account the probable environmental consequences of the action and
consider taking steps to mitigate reasonably foreseeable adverse
environmental effects to the extent practical and consistent with
agency authority.
2. Categorical Exclusions
DOI retained 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 lengthier environmental
assessment or environmental impact statement process and can proceed
using the shorter 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 IFR revised them to refine the description of, or, in some cases,
remove certain extraordinary circumstances that, when present, would
preclude reliance on a categorical exclusion. Section 46.205 of the
IFR, meanwhile, included new paragraphs (e) through (j), which provide
that DOI bureaus may rely on categorical exclusion determinations made
by other agencies, may apply multiple categorical exclusions to a
proposed action that is a composite of multiple smaller actions or
action elements, and may rely on a categorical exclusion
administratively established or adopted by another DOI bureau;
establish procedures to govern the establishment, modification, or
removal of categorical exclusions from NEPA procedures; and clarify
that any such establishment, modification, or removal does not itself
have any environmental effects for purposes of NEPA. (The IFR also
eliminated certain categorical exclusions from Section 46.210 on the
basis that they were not used across the Department; as noted below,
the final rule restores those categorical exclusions to the regulation
to ensure continuity in reference and citation.)
In the final rule, DOI adds cross references to paragraphs (d) and
(e) in paragraph (a) of Section 46.205 for additional clarity. Public
comment on the IFR requested this clarification. In addition, DOI is
revising paragraph (f) with non-substantive and clarifying editorial
changes. Finally, DOI is removing errant paragraph topic headings in
paragraph (f) and (i) for consistency with the rest of the section,
which does not use this organizational format.
In Section 46.210, the final rule reinstates paragraphs (k) and (l)
which had been removed in the IFR, and which describe categorical
exclusions for hazardous fuels reduction activities using prescribed
fire and post-fire rehabilitation activities, respectively. Although
they are not properly considered Department-wide categorical
exclusions, bureaus have relied on this regulatory citation since the
2008 DOI NEPA rule, and DOI reorganized the bureau-specific categorical
exclusion list in the DOI NEPA Handbook to consolidate the list in a
more user-friendly format to facilitate use. DOI also identifies
limitations in this final rule on use of the hazardous fuels reduction
activities categorical exclusion in paragraph (k), revising the
regulatory text to add a limitation on its use in States under the
jurisdiction of the Ninth Circuit Court of Appeals. In addition, DOI is
revising the introductory paragraph in this section to provide that
reliance on either of the two categorical exclusions described in
paragraphs (k) and (l) requires documentation, consistent with the
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2008 DOI NEPA regulation, and revising text to provide that reliance on
any of the other categorical exclusions in paragraph (a) through (j)
does not require documentation, again consistent with the 2008 DOI NEPA
regulation. 43 CFR 46.20(c) (2008).
In Section 46.215, which lists the ``extraordinary circumstances''
that, if present, preclude use of a categorical exclusion, the IFR
removed legacy paragraphs (c), (i), and (j), and then renumbered the
remaining paragraphs.
Legacy paragraph (c) had provided 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) (2008).
This provision caused confusion as it was frequently misunderstood to
mean that any controversy surrounding the substance of the action--as
opposed to controversy about the nature or magnitude of the
environmental effects, which was the appropriate, limited focus of the
provision--itself constitutes an extraordinary circumstance. In any
event, the concept is sufficiently addressed in legacy paragraph (d)
(which the IFR renumbered as paragraph (c)), which addresses proposed
actions that have highly uncertain and potentially significant
environmental effects or involve unique or unknown environmental risks.
DOI makes no changes to this paragraph in the final rule.
Legacy paragraph (i) had provided 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) (2008). 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 Official 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 or the analysis of what those effects
are. DOI makes no changes to this paragraph in the final rule.
Legacy paragraph (j) had been 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, 90 FR 8633 (Jan. 31, 2025). Therefore, it was
appropriate to remove the associated provision in Section 46.215, and
DOI makes no changes to this paragraph in the final rule.
In addition, all references to E.O.s in the DOI list of
extraordinary circumstances were 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. Further, the
E.O.s in force when an agency proposes action are, if relevant,
authoritative in their own right, regardless of whether they are set
forth in these regulations.
3. Applicant- and Contractor-Prepared Environmental Documents
In the IFR, DOI also retained Section 46.105, with some revisions,
and added Section 46.107. These sections 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. Section 107(f) of NEPA, enacted through the FRA,
requires agencies to develop procedures to allow for the preparation of
environmental assessments and environmental impact statements by
applicants for Federal approvals. DOI already had a regulation allowing
for bureaus to rely on applicant-prepared environmental assessments.
The revisions made by the IFR extended 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 were added to the regulation governing bureau
use of environmental information or documents prepared by contractors
engaged directly by the bureaus.
The final rule affirms the IFR by retaining Section 46.105 with a
minor revision that adds references to NEPA and a DOI Secretarial
Order. In paragraph (c) of Section 46.107, DOI removes the last phrase
``if potential significance of an effect or issue is not clear,'' which
described when another agency may be used to verify analyses in an
environmental assessment or environmental impact statement. DOI
determined that this phrase was unnecessary and could be unduly
limiting when in-house expertise is not available and DOI seeks to rely
on another agency's expertise regarding the scientific quality and
integrity of an impact assessment.
4. How To Designate Lead Agencies
In the final rule, DOI reinstates Section 46.220, How to designate
lead agencies, as modified from legacy paragraph 1.7(a) from the DOI
NEPA Handbook, How to designate lead agencies, and makes formatting
changes to align with the format for rules. In response to public
comment and to keep the roles of those agencies in the NEPA process
together in the DOI NEPA implementing procedures, DOI elects to re-
codify this section and the next section, 46.225, in the final rule.
5. How To Select Cooperating Agencies
In the final rule, DOI reinstates Section 46.225, How to select
cooperating agencies, as modified from legacy paragraph 1.7(b) from the
DOI NEPA Handbook, How to select cooperating agencies. In doing so, DOI
amends the term ``eligible governmental entity'' to ``agency'' to align
with NEPA and CEQ guidance in memorandum, Implementation of the
National Environmental Policy Act, Appendix 1--Agency NEPA Procedures
Template, and makes editing and formatting changes to align with the
format for rules. In addition, DOI corrected ``must'' to ``may'' in the
provision regarding inviting cooperating agencies when preparing an
environmental assessment, which corresponds to DOI's previous NEPA
procedures and the text of NEPA. Finally, DOI added a clarifying phrase
regarding documentation with cooperating agencies on their roles to
explicitly note the potential limitations of laws on the
confidentiality of pre-publication environmental documents. In response
to numerous public comments requesting that DOI retain the procedures
for including cooperating agencies in NEPA reviews in regulation, DOI
elects to re-codify this section in the final rule to ensure that the
agency's procedures effectively describe the process for selecting
cooperating agencies and to promote maximum efficiency and cross-agency
work in service of timely environmental reviews.
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C. Establishing DOI's NEPA Handbook
In this section, DOI provides a section-by-section summary of the
provisions of DOI's NEPA Handbook. Though the Handbook is not part of
the rulemaking, DOI is electing to provide this summary to assist the
public in understanding the relationship between DOI's rulemaking and
other updates to its NEPA procedures. In DOI's 2025 IFR, DOI explained
that it was moving much of the material previously contained within its
NEPA procedures in the CFR to a non-regulatory handbook. When
publishing its IFR, DOI solicited comment on its revision of its NEPA
procedures, including this step of transferring much of the procedures
into the handbook. This section and the response to comments in section
III below explain the contents of the handbook and respond to comments.
1. Section 0.1--Purpose and Policy
Section 0.1 of the DOI NEPA Handbook describes the purpose of the
document and makes clear that the Handbook, together with the handful
of provisions retained in regulation, constitute DOI's NEPA procedures.
This section was revised from the version of the Handbook released in
July 2025 with the IFR to provide explicitly that ``environmental
information'' relevant to a decision-maker may include ``economic
information'' and clarify that the Handbook is meant only to guide
bureaus in their efforts to comply with NEPA and not with other legal
obligations that may apply to a proposed action.
2. Section 0.2--Applicability
Section 0.2 of the DOI NEPA Handbook describes the extent of the
applicability of the guidance document and provides that it applies to
all DOI bureaus.
3. Section 1.1--Determining When NEPA Applies
Section 1.1 of the DOI NEPA Handbook guides DOI bureaus on the
standards for when the bureau must comply with NEPA, including what
constitutes a ``major Federal action[ ]'' within the meaning of the
statute. 42 U.S.C. 4332(C). Some commenters took exception to the
statement in that discussion that ``[t]he terms `major' and `Federal
action[ ]' each have independent force.'' DOI NEPA Handbook
1.1(a)(6)(i). Each word of the statute should be given weight. In this
instance, Congress has itself defined the phrase, excluding certain
kinds of proposed actions from its ambit, and in so doing repeated its
two component terms first introduced in 1969. This interpretation that
each term has a distinct meaning is also consistent with the
interpretation of the statutory language in the period soon after
NEPA's enactment, before the first CEQ NEPA regulations.
This section was revised from the version of the Handbook released
in July 2025 with the IFR to remove references to an appendix listing
examples of classes of actions that normally require an environmental
assessment or environmental impact statement, which has been
eliminated, and to clarify that the reason that the activities
identified in Section 1.1(a)(6)(iii) do not usually require preparation
of an environmental document is that they usually do not result in
significant environmental effects and not necessarily that they are not
``major Federal actions.''
4. Section 1.2--Determining the Appropriate Level of NEPA Review
Section 1.2 of the DOI NEPA Handbook presents the standards for
determining, once it is established that NEPA applies, whether the
bureau may use a categorical exclusion, prepare an environmental
assessment, or prepare an environmental impact statement. Bureaus will
prepare an environmental impact statement if the bureau anticipates
that ``the reasonably foreseeable effects of the proposed action or
action alternatives would be significant.'' DOI NEPA Handbook 1.2(b).
Some commenters took issue with the provision allowing that, ``[i]f
the proposed action warrants the establishment of a new categorical
exclusion, or the revision of an existing categorical exclusion,
pursuant to section 1.4(b), the bureau will consider whether to so
establish or revise, and then may apply the categorical exclusion to
the proposed action,'' DOI NEPA Handbook 1.2(a)(3), and perceived it as
a means of circumventing the usual process for establishing new or
revising existing categorical exclusions.
DOI has revised this particular provision from the version of the
Handbook released in July 2025 to make explicit that any establishment
or revision of a categorical exclusion will follow the standard
procedures. It is wholly appropriate for DOI bureaus to consider
establishing a new categorical exclusion when confronted with an action
of a type it has found normally does not significantly affect the
quality of the human environment but for which no categorical exclusion
has already been established.
Some commenters took issue with the criteria listed in this
section, comparing those criteria to the treatment of ``significance''
under the 2024 CEQ regulations and objecting to the inclusion of
``[e]conomic effects'' and ``[e]ffects on the quality of life of the
American people'' among those criteria to the exclusion of others.
The criteria identified in Section 1.2(b)(2) are necessarily
defined at a high level of generality--e.g., ``short- and long-term
effects,'' DOI NEPA Handbook 1.2(b)(2)(i), and the inclusion of
references generally to economic and other quality of life impacts does
not, as commenters suppose, prioritize those concepts above impacts to
other environmental resources encompassed within but not explicitly
listed among the broad criteria included in the Handbook. DOI has
determined that this higher level of generality better reflects the
broad understanding of ``significance'' under the statute than would an
attempt to define the concept with more particularity, as CEQ did in
2024 and as some commenters appear to prefer.
Moreover, 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). Given the statutory language as it
relates to fulfilling the social and economic requirements of present
and future generations, and DOI's longstanding practice in integrating
its consideration of social impacts into its environmental analysis
under NEPA, DOI finds it appropriate to continue to consider social
effects, including economic effects, when evaluating environmental
effects under NEPA.
This section was revised to make explicit that a bureau may, in
determining whether an action will have significant effects, consider
beneficial effects that directly offset adverse effects to a given
resource value. DOI NEPA Handbook 1.2(b)(2).
5. Section 1.3--NEPA and Agency Decision-Making
Section 1.3 of the DOI NEPA Handbook describes the relationship
between the NEPA process and other DOI and bureau processes and
decisions. It includes direction to integrate the NEPA process with
other processes as soon as practicable and articulates the limitations
on bureau decision-making while the NEPA
[[Page 8743]]
process is underway. DOI NEPA Handbook 1.3(a)-(b). This direction is
consistent with long-standing CEQ and DOI NEPA guidance. See 40 CFR
1500.4(k); 40 CFR 1502.25(a) (1978) (rescinded); 43 CFR 46.430 (2008)
(rescinded in part). It identifies important (largely practical)
considerations in cases where the bureau action will be in response to
a third-party application and where it will be a bureau rulemaking. DOI
NEPA Handbook 1.3.(c)-(d). DOI revised these paragraphs (c) and (d),
relative to the version of the Handbook released in July 2025, to
provide additional detail.
Finally, section 1.3(e) provides standards for evaluating
mitigation measures within the range of alternatives, with the
important caveat that NEPA itself does not provide authority for a
bureau to require or implement mitigation measures. DOI NEPA Handbook
1.3(e). The provisions in the DOI NEPA Handbook are consistent with the
long-standing provisions in both the original CEQ and DOI NEPA
regulations, including the definition of ``mitigation.'' See 40 CFR
1500.3 (describing the mandate of the regulations as ``applicable to .
. . implementing the procedural provisions of NEPA'') (1978)
(rescinded); 40 CFR 1502.14(f) (1978) (rescinded), 1508.20 (1978)
(setting forth the types of ``mitigation''; rescinded); 43 CFR 46.130
(2008) (rescinded in part). Some commenters suggested that DOI should
provide more detail in its procedures as to how to consider mitigation
in NEPA reviews, even as those comments acknowledged that the
procedures do address the topic. This section articulates the
proposition that ``NEPA requires bureaus to consider reasonable
mitigation measures,'' and it and other provisions within the Handbook
provide appropriate standards for Responsible Officials to fulfill that
obligation. DOI acknowledges that CEQ took a more granular approach in
its 2024 Rule, but DOI has determined that the higher level of
generality expressed in the DOI NEPA Handbook will provide Responsible
Officials with the flexibility and reasonable discretion needed to
efficiently carry out their duties consistent with NEPA's requirements.
DOI NEPA Handbook 1.3(e); see also DOI NEPA Handbook 1.6(a)(3),
2.3(a)(6).
6. Section 1.4--Categorical Exclusions
Section 1.4 of the DOI NEPA Handbook concerns categorical
exclusions. Because the DOI NEPA procedures for categorical exclusions
have been maintained as regulations, this section consists largely of
cross-references to the appropriate regulatory section for the
establishment, adoption, application, and documentation of categorical
exclusions. See Section II.B.2, supra.
This section was revised from the version of the Handbook released
in July 2025 with the IFR to provide additional details for considering
whether a categorical exclusion applies to a proposed action that has
been modified.
7. Section 1.5--Environmental Assessments
Section 1.5 of the DOI NEPA Handbook identifies and describes the
considerations relevant to the preparation of an environmental
assessment. It addresses both the character of environmental
assessments as set forth in the statute, and is consistent with long-
standing provisions in both the original CEQ and DOI NEPA regulations
(see 40 CFR 1508.9) (1978) (rescinded); 43 CFR 46.300, 310 (2008)
(rescinded), including the elements they include and their appropriate
scope, as well as more technical details, including page limits,
timeframes for preparation, and certification. This section was revised
from the version of the Handbook released in July 2025 with the IFR to
add discussion of Section 112 of NEPA, enacted after the Handbook was
first released, and to eliminate references to the appendix listing
examples of classes of actions that normally require an environmental
assessment (but not an environmental impact statement). DOI has
determined that this appendix was not useful because the amendments to
the statute and DOI's NEPA implementing procedures as adopted in the
2025 IFR, this final rule, and elsewhere in its NEPA Handbook provide
sufficient guidance as to when DOI is required to develop an
environmental assessment, and it is not included in the revised version
of the Handbook.
8. Section 1.6--Findings of No Significant Impact
Section 1.6 of the DOI NEPA Handbook details the procedures that
bureaus follow when making and documenting a finding of no significant
impact. As noted above in the discussion of section 1.3(e), this
section provides that a finding of no significant impact will
``identify the mitigation measures that will be undertaken to avoid
significant effects and the mechanisms to ensure their
implementation.'' DOI NEPA Handbook 1.6(a)(3). No changes have been
made to this section relative to the version released with the IFR in
July 2025.
9. Section 1.7--Lead and Cooperating Agencies
Section 1.7 of the DOI NEPA Handbook concerns identification of a
lead agency in cases where more than one agency will participate in a
NEPA process and procedures for engaging with the broader set of
cooperating agencies. The substance that appeared in the July 2025
version of the Handbook that accompanied the IFR has been moved to the
regulations at 43 CFR 46.220 and 46.225; therefore, this section now
consists primarily of cross-references to those provisions. See also
Section II.B.4-5, supra.
10. Section 1.8--Notices of Intent and Scoping
Section 1.8 of the DOI NEPA Handbook describes DOI's procedures for
the scoping process that precedes development of an environmental
document, including the process for issuing a notice of intent to
prepare an environmental impact statement. Paragraph (b) of this
section provides that when a bureau intends to prepare an environmental
impact statement to evaluate a proposed action, the bureau must publish
a notice of intent in the Federal Register. The notice of intent
process includes an opportunity for public comment, as is required by
statute. 42 U.S.C. 4336a(c). Paragraph (c) of this Handbook section
includes examples of other steps bureaus might take as part of the
scoping process. Paragraph (a) has been revised from what appeared in
the July 2025 version of the Handbook for clarity.
11. Section 2.1--Preparation of Environmental Impact Statements
Section 2.1 reiterates the standard for when an environmental
impact statement is required, as well as the expectations and
procedures for soliciting comments from Federal agencies; State,
Tribal, and local governments and agencies; and the public. This
section was revised from the version of the Handbook released in July
2025 with the IFR to eliminate references to the appendix listing
examples of actions that normally require an environmental impact
statement. DOI has determined that this appendix was not useful, and it
is not included in the revised version of the Handbook.
Many comments addressed DOI's approach to public participation in
the IFR and Handbook. Those comments are relevant to this section of
the Handbook but generally address the question of public participation
more broadly. For a
[[Page 8744]]
consolidated response to those comments, see Section III.E, infra.
12. Section 2.2--Purpose and Need
Section 2.2 provides guidance on developing the statement of
purpose and need that is included in all environmental impact
statements, including the particular considerations that are present
when a bureau's proposed action responds to an application from a third
party. Some commenters took issue with the provision that, in such
circumstances, ``the purpose and need for the proposed action will also
be informed by the goals of the applicant,'' claiming that it would
limit consideration of appropriate alternatives to the proposed action.
DOI disagrees because while the provision requires Responsible
Officials to consider the applicant's goals when reasonably defining
the purpose and need for a proposed action, it does not require those
officials to adopt the applicant's goals as the bureau's purpose and
need or exclude from consideration otherwise reasonable alternatives to
the proposed action. DOI also notes that DOI's 2008 NEPA regulations
included the directive that when considering such applications, ``the
bureau should consider the needs and goals of the parties involved in
the application or permit as well as the public interest,'' see 43 CFR
46.420(a)(2) (rescinded), and that this concept is merely carried into
this section of the DOI NEPA Handbook. No changes have been made to
this section relative to the version released with the IFR in July
2025.
13. Section 2.3--Analysis Within the Environmental Impact Statement
Section 2.3 outlines the content of an environmental impact
statement, providing guidance on what should be included, which closely
tracks the statutory requirements at 42 U.S.C. 4332(C); and provides
guidance about how to determine the appropriate scope of the analysis,
including by incorporating concepts and language from the Supreme
Court's recent consideration of that issue in Seven County
Infrastructure Coalition. Compare DOI NEPA Handbook 2.3(b)(3) (``To the
extent it assists in reasoned decision-making, the bureau may, but is
not required to by NEPA, analyze environmental effects from other
projects separate in time, or separate in place, or that fall outside
of the bureau's regulatory authority, or that would have to be
initiated by a third party.''), with Seven County Infrastructure
Coalition, 605 U.S. at 182 (``So long as the EIS addresses
environmental effects from the project at issue, courts should defer to
agencies' decisions about where to draw the line--including (i) how far
to go in considering indirect environmental effects from the project at
hand and (ii) whether to analyze environmental effects from other
projects separate in time or place from the project at hand.'').
Section 2.3(a)(3) directs bureaus to identify and evaluate the
environmental effects of ``a reasonable range of alternatives to the
proposed action.'' DOI NEPA Handbook 2.3(a)(3); see also 42 U.S.C.
4332(C)(iii). Some commenters suggested that DOI should or must
incorporate into its guidance additional direction concerning the
development and selection of alternatives from CEQ's rescinded
regulations. The guidance concerning the identification and
consideration of alternatives in DOI's Handbook substantially aligns
with the content of CEQ's now-rescinded regulations and CEQ guidance,
including that bureaus must consider a reasonable range of
alternatives, see 40 CFR 1502.14(a) (1978) (rescinded); see also Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations, Question and Answer 1b (``When there are potentially a
very large number of alternatives, only a reasonable number of
examples, covering the full spectrum of alternatives, must be analyzed
and compared in the EIS.''), 46 FR 18,026 (March 23, 1981).
But, as noted above, DOI's Handbook is not simply a subsequent
iteration of the policies previously contained in CEQ's now-rescinded
regulations, or a direct successor to them, but rather draws upon and
implements the requirements of NEPA itself. Based on its experience and
judgment, DOI believes that the guidance it is providing in Section
2.3(a)(3) better hews to the statutory language and better guides
bureaus in developing alternatives to a given proposed action than
would reconstituting the particular approach taken by the now-rescinded
CEQ regulations. For example, one commenter noted while the version of
the Handbook released in July 2025 expressly provides that
environmental assessments do not need to include a ``no action
alternative,'' the Handbook is not clear whether environmental impact
statements must include a ``no action alternative.'' DOI agrees. The
DOI Handbook, Appendix 1, has now been revised to encourage, but not
require, DOI bureaus to include a ``no action alternative'' in both
environmental assessments and environmental impact statements. While
including a ``no action alternative'' is often useful to compare the
effects of the proposed action to the future without the Federal
action, it is not always necessary; no specific invocation of a ``no
action alternative'' is necessary as the effects of the proposed action
and any reasonable alternatives thereto would necessarily be described
in terms of change to the prevailing circumstances or ``Affected
Environment.''
No other changes have been made to this section relative to the
version released with the IFR in July 2025.
14. Section 2.4--Page Limits
Section 2.4 provides that environmental impact statements must be
no more than 150 pages or, where the proposed action is of
extraordinary complexity, 300 pages, consistent with statutory limits
enacted in the 2023 amendments to NEPA. See 42 U.S.C. 4336a(e). The
section also provides that the Responsible Official will certify that
the environmental impact statement appropriately prioritizes the most
important considerations for the analysis in light of both the page
limitation and the factors that the bureau must consider under NEPA.
The section has been revised from the version of the Handbook released
in July 2025 with the IFR to clarify that citations and appendices are
not counted toward the page limit.
15. Section 2.5--Deadlines
Section 2.5 provides guidance and direction on compliance with
NEPA's deadlines for completing an environmental impact statement under
both Section 107 and Section 112 of the statute. It also directs the
Responsible Official to certify that the environmental impact statement
has thoroughly considered the factors that the bureau must consider
under NEPA while making a good-faith effort to fulfill NEPA's
requirements within the statutory deadlines. This section was revised
from the version of the Handbook released in July 2025 with the IFR to
add discussion of Section 112 of NEPA, enacted after the Handbook was
first released.
16. Section 2.6--Publication of the Environmental Impact Statement
Section 2.6 directs bureaus to make environmental impact statements
available to the public. No changes have been made to this section
relative to the version released with the IFR in July 2025.
[[Page 8745]]
17. Section 3.1--Reliance on Existing Environmental Documents
Section 3.1 provides guidance for bureaus when they seek to use a
previously prepared environmental document to satisfy their NEPA
compliance obligations with respect to a new proposed action. The
section identifies the standards for making a Determination of NEPA
Adequacy or similar finding, including by providing detail on what
constitutes ``substantial similarity.'' Some commenters objected to the
allowance that bureaus should provide for public comment when they plan
to rely on a previously prepared environmental document only ``to the
extent that solicitation of comment will assist the bureau in
expeditiously adapting the relied-upon statement or assessment so that
it is fit for the bureau's purposes.'' See DOI NEPA Handbook 3.1(b)(2).
While those comments are specific to this section of the Handbook, they
join many other comments addressed to DOI's approach to public
participation in general. For a consolidated response to those
comments, see Section III.E, infra.
No changes, beyond one technical correction, have been made to this
section relative to the version released with the IFR in July 2025.
18. Section 3.2--Programmatic Environmental Impact Statements or
Environmental Assessments and Tiering
Section 3.2 articulates guidance and details the procedures for
preparing programmatic environmental assessments and environmental
impact statements. The section tracks the statutory provisions for
programmatic environmental documents at Section 108 to describe the
circumstances under which a bureau may rely on a programmatic
environmental document, without further NEPA review as well as when a
bureau may, in the course of additional NEPA review, tier to an
existing programmatic environmental assessment or environmental impact
statement so as to truncate additional review. Finally, the section
provides that a bureau may prepare an environmental assessment and
reach a finding of no additional significant impacts when it tiers to a
programmatic environmental impact statement that has already fully
analyzed any significant effects the proposed action would have. This
provision carries forward a clarification in tiering practice
introduced in DOI's 2008 NEPA regulations. See 43 CFR 46.140
(rescinded). No changes have been made to this section relative to the
version released with the IFR in July 2025.
19. Section 3.3--Publishing Pre-Decisional Environmental Documents
Section 3.3 provides allowance for a bureau to release drafts of
environmental documents and other pre-decisional materials when doing
so ``may assist in fulfilling its responsibilities under NEPA.'' No
changes have been made to this section relative to the version released
with the IFR in July 2025.
20. Section 3.4--Combining Documents
Section 3.4 directs bureaus to combine environmental documents
prepared to comply with NEPA with other bureau documents prepared in
the course of making a decision to pursue the proposed action to the
fullest extent practicable. This provision is designed to increase
efficiency and decrease the extent of the materials to support agency
decision-making. No changes have been made to this section relative to
the version released with the IFR in July 2025.
21. Section 3.5--Incorporation by Reference
Section 3.5 describes the allowance for bureaus to incorporate
other materials by reference, to reduce the length of environmental
documents. When incorporating by reference, bureaus must describe the
content briefly and provide relevant citation to the material being
incorporated. This is consistent with a provision in the 2008 DOI NEPA
regulations. See 43 CFR 46.135 (rescinded). With respect to cost-
benefit analysis specifically, although NEPA itself does not require
preparation of a cost-benefit analysis, these procedures direct bureaus
to incorporate any cost-benefit analysis they do prepare by reference
in the associated environmental document. This provision is consistent
with long-standing guidance in the CEQ regulations. See 40 CFR 1502.23
(1978) (rescinded). In DOI's judgment, retaining it is compatible with
the statute, will enhance DOI's ability to comply with the statutory
page limits and deadlines, and will otherwise further the policies of
E.O. 14154. No changes, beyond one technical correction, have been made
to this section relative to the version released with the IFR in July
2025.
22. Section 3.6--Supplements to Environmental Impact Statements
Section 3.6 concerns when a bureau must supplement an environmental
impact statement. A supplement is required when ``a major Federal
action remains to occur'' and the bureau makes substantial changes to
the action or the bureau determines there are significant changed
circumstances, in either case implicating environmental effects. DOI
NEPA Handbook 3.6(a). Some comments took issue with the Handbook's use
of the phrase ``remains to occur,'' preferring the phrase ``incomplete
and ongoing,'' used in the CEQ's since-rescinded regulations. DOI
disagrees with any suggestion that ``remains to occur'' is vague.
Bureaus should have no trouble determining whether in the course of
implementing a bureau action any ``major Federal action remains to
occur.'' This approach is also consistent with long-standing provisions
in the original CEQ regulations that required supplements only for
``proposed actions''--that is, for actions that have not yet occurred
but remain ``proposals'' or ``that stage in the development of an
action when an agency subject to [NEPA] has a goal and is actively
preparing to make a decision on one or more alternative means of
accomplishing that goal and the effects can be meaningfully
evaluated.'' See 40 CFR 1502.9(c) (1978) (rescinded); 40 CFR 1508.23
(1978, defining ``proposal'') (rescinded).
Some comments also took issue with the Handbook's treatment of
public participation on supplements to an environmental impact
statement. The Handbook provides that the Responsible Official may, but
is not obliged to, circulate a supplement for public input ``as
appropriate to the scope of the supplement and the proposed action.''
DOI NEPA Handbook 3.6(b). While those comments are specific to this
section of the Handbook, they join many other comments addressed to
DOI's approach to public participation in general. For a consolidated
response to those comments, see Section III.E, infra.
No changes have been made to this section relative to the version
released with the IFR in July 2025.
23. Section 3.7--Integrity and Completeness of Information
Section 3.7 expresses a preference for reliance on existing data
and other information resources, directing bureaus to undertake new
scientific or technical research only when ``the bureau anticipates
that the results of that research will be essential to a reasoned
choice among alternatives and the overall costs and time frame of such
undertaking are not unreasonable.'' DOI NEPA Handbook 3.7(a). This
approach is consistent with the original CEQ regulations, Congress
codified this approach in the 2023 statutory amendments. See 40 CFR
1502.22(a) (1978); 42 U.S.C. 4336(b)(3). New
[[Page 8746]]
research can be costly and time-consuming, and to make the NEPA process
more efficient, bureaus should rely on existing sources of information
wherever possible.
Paragraph (b) of this section provides guidance to bureaus in
situations where existing data or information is incomplete but cannot
be reasonably obtained or developed at a reasonable cost. In such
cases, again for efficiency's sake, the bureau should document the data
or information gap and proceed with preparation of the environmental
document. Some comments suggested that DOI should incorporate a
provision akin to one in the CEQ regulations that agencies apply
accepted scientific methods to resolve data gaps. As an initial matter,
and as noted above, in developing its Handbook, DOI is implementing the
statute, not simply standing in for CEQ's now-rescinded regulations,
which are no longer in force. Section 3.7(b) is consistent with NEPA,
and because the Handbook is designed to promote efficiency and
certainty, DOI declines to make the change suggested by those comments.
No changes, beyond one technical correction, have been made to this
section relative to the version released with the IFR in July 2025.
24. Section 3.8--Integrating NEPA With Other Environmental Requirements
Section 3.8 directs bureaus to combine NEPA analysis and
environmental documents with other analysis processes and documentation
associated with the proposed action at issue and provides guidance on
how to do so. No changes, beyond one edit for clarity, have been made
to this section relative to the version released with the IFR in July
2025.
25. Section 3.9--Elimination of Duplication With State, Tribal, and
Local Procedures
Section 3.9 directs bureaus to coordinate NEPA analysis and the
preparation of environmental documents with State, Tribal, and local
agencies engaged in similar processes and provides guidance on how to
do so. This section implements Congress's design in Section 107 as
added by the 2023 statutory amendments. See, e.g., 42 U.S.C. 4336a(a),
(b). No changes have been made to this section relative to the version
released with the IFR in July 2025.
26. Section 3.10--Proposals for Regulations
Section 3.10 directs bureaus to consider whether documents prepared
in the course of rulemaking also may be used to satisfy NEPA with
respect to that rulemaking and to rely on such documents when they are
able. No changes have been made to this section relative to the version
released with the IFR in July 2025.
27. Section 3.11--Unique Identification Numbers
Section 3.11 addresses the practical concern of establishing a
system by which relevant information and documents can be tracked in
conjunction with one another. The requirement to coordinate use of
identification numbers with CEQ is intended to support cross-agency
coordination across multiple Federal agencies and navigation by the
public of documents that support decisions made.
28. Section 3.12--Emergencies
DOI elected to retain the provisions addressing NEPA compliance as
related to emergencies in its NEPA regulations at 43 CFR 46.150;
therefore, this section now consists primarily of cross-references to
those provisions. See Section II.B.1, supra, for discussion of the
relevant regulation.
29. Section 4.1--Decision Documents
Section 4.1 provides direction to bureaus as to how and when to
document and make public their decisions, in particular how the mode of
complying with NEPA affects Department expectations and requirements
for how decisions are documented. The section reiterates the bureaus'
discretion to select any one or a blend of the alternatives considered
in the course of the NEPA process. DOI has revised this section from
the version released with the IFR in July 2025 to better clarify when a
decision should be documented and when a decision should be published.
30. Section 4.2--Filing Requirements
Section 4.2 provides guidance for filing environmental impact
statements with the Environmental Protection Agency for publication and
notification of availability. No changes, beyond one edit for clarity,
have been made to this section relative to the version released with
the IFR in July 2025.
31. Section 5.1--Procedures for Applicant-Prepared Environmental Impact
Statements and Environmental Assessments
Because procedures for applicant-prepared environmental documents
are retained in regulation, this section of the Handbook consists only
of a cross-reference. See Section II.B.3, supra, for discussion of the
relevant regulation.
32. Section 5.2--Using a Bureau-Directed Contractor To Prepare
Environmental Documents
Because procedures for preparation of environmental documents by a
bureau-directed contractor are retained in regulation, this section of
the Handbook consists only of a cross-reference. See Section II.B.3,
supra, for discussion of the relevant regulation.
33. Section 6.1--Definitions
Section 6.1 defines the terms of art used throughout the Handbook.
DOI has added definitions of the terms design features and
environmental document to the definitions section since the Handbook
was first published in July 2025 alongside the IFR. Other definitions
have been revised for clarity in this updated version of the Handbook.
34. Section 7.1--Severability
Section 7.1 consists of a statement of severability in the event
one or more of the DOI NEPA procedures contained in the Handbook are
found to be invalid.
III. Comments
DOI received approximately 6,601 written submissions in response to
the interim final rule. The overwhelming majority of comments
(approximately 6,122) were in the form of two different letters that
were identical or very similar in form and content. From among the
6,601 comments, DOI received approximately 458 unique public comments,
including from non-governmental organizations, State agencies, local
and regional governments, Tribes, industry groups, members of the U.S.
House of Representatives, and members of the public.
DOI is providing summaries of and responses to those unique and
substantive comments it received on the IFR in the following section of
this final rule. The DOI received comments expressing general support
for the IFR and comments expressing opposition to the IFR. None of the
comments changed DOI's conclusion that it is appropriate to partially
rescind and otherwise revise the previous regulations, though DOI made
minor edits to those regulations upon further review. In addition, DOI
made various edits to the Department of the Interior Handbook: National
Environmental Policy Act Implementing Procedures (hereinafter, DOI NEPA
Handbook) to correct or clarify procedural issues, or address internal
or external comments. Responses to comments on the DOI NEPA Handbook
are not addressed specifically in this section as revision and
publication of
[[Page 8747]]
the DOI NEPA Handbook is not part of the rulemaking. However, DOI
considered comments on the DOI NEPA Handbook when making revisions to
that document, which is being reissued concurrently with this final
rule, and as appropriate provides responses in the interest of clarity
and ensuring public understanding of DOI's rationales. Further, the
section-by-section discussion the DOI NEPA Handbook herein addresses,
with particular focus, how concepts previously addressed in 43 CFR part
46 now appear in the DOI NEPA Handbook. For example, defined terms used
in this rule are found in the DOI NEPA Handbook, Section 6.1
Definitions and, in several instances, are consistent with how they
appeared in 43 CFR part 46, often, with more helpful detail. See, e.g.,
43 CFR 46.30 (definitions of ``Proposed Action'' and ``Responsible
Official''; rescinded).
A. General Comments on the IFR
Comment: Several commenters expressed support for the IFR. Letters
of support commended the Department for updating its NEPA procedures to
be consistent with E.O. 14154, aligning the NEPA implementing
procedures with the FRA and the Supreme Court's decision in Seven
County Infrastructure Coalition, and simplifying permitting procedures
and the NEPA process.
Response: DOI acknowledges these supportive comments.
Comment: Many commenters expressed opposition to the IFR. Letters
of opposition urged the Department to reverse course.
Response: DOI acknowledges these opposing comments.
Comment: One commenter expressed support for the new DOI NEPA
Procedures and stated that it is imperative that DOI leadership ensure
that bureaus implement these procedures and adapt their practices to
conform to them.
Response: The DOI NEPA procedures are part of a coordinated effort
to reduce the burdens associated with NEPA compliance across the
Federal Government and ensure that DOI bureaus comply with NEPA and DOI
NEPA regulations. DOI acknowledges that additional guidance or training
may be necessary to appropriately implement these revised DOI NEPA
procedures.
B. Comments Regarding the Rulemaking Process
Comment: Several commenters requested that DOI extend the comment
period for the IFR.
Response: DOI determined that 30 days was adequate because the
scope of the IFR was limited to partial removal and minimal additions
or revisions to the DOI regulations. While DOI made a greater number of
revisions to the procedural provisions related to compliance with NEPA
now present in the DOI NEPA Handbook, these changes, which are not part
of this rulemaking, largely aligned DOI procedures with recent
amendments to NEPA or developments in case law, such as the renewed
focus in Seven County Infrastructure Coalition on limiting the scope of
analysis to the reasonably foreseeable environmental effects of the
agency's proposed action and reasonable alternatives. Moreover, DOI
received more than 6,600 comments on its IFR, and the volume and
substantive content of the comments indicates that the public had an
adequate opportunity to comment.
Comment: Several commenters requested that the IFR be published as
a proposed rule with a period for public comment prior to the IFR's
effective date.
Response: The Administrative Procedure Act (APA) authorizes
agencies to issue regulations without notice and public comment when
the rule is an ``interpretative rule[ ], general statement[ ] of
policy, or rule[ ] of agency . . . procedure[ ] or practice,'' 5 U.S.C.
553(b)(A), or when an agency finds, for good cause, that notice and
comment is ``impracticable, unnecessary, or contrary to the public
interest,'' id. 553(b)(B). The APA did not require DOI to publish a
notice of proposed rulemaking and consider public comments before the
effective date of the rule because three separate exceptions to the
APA's general requirement apply here: (1) the legacy DOI NEPA
regulations were procedural only and did not dictate or preclude any
DOI actions; rather, the legacy DOI NEPA regulations prescribed
processes for DOI and its bureaus to follow when complying with NEPA;
(2) the legacy DOI NEPA regulations merely provided an interpretation
of a statute rather than making discretionary policy choices
establishing enforceable rights or obligations for regulated parties;
and (3) good cause exists to forgo notice-and-comment procedures and
put the rule into immediate effect because public comment on the rule
was and is unnecessary and impracticable. The legacy DOI NEPA
regulations were expressly promulgated to supplement CEQ's NEPA
regulations; following the vacatur and rescission of CEQ's NEPA
regulations, DOI was left with vestigial NEPA regulations that
``supplemented'' a CEQ regulatory regime that no longer existed. 5
U.S.C. 553 (b)(A)-(B).
C. Comments on the IFR Process
Comment: Several commenters disagreed that DOI had good cause to
waive the APA notice-and-comment requirements imposed by 5 U.S.C.
553(b). These commenters stated that DOI's IFR did not establish that
notice and an opportunity to comment were unnecessary, impracticable,
or contrary to the public interest. These commenters asserted that,
rather than reducing confusion and supporting public interest, the IFR
creates more confusion about how DOI will undertake its NEPA reviews.
In addition, several commenters disagreed with DOI's conclusion that
its rule to partially remove and revise its NEPA implementing
regulations is an interpretative rule or, in the alternative, a rule of
agency procedure that does not, in either case, require notice and
comment.
Response: DOI proceeded via IFR in response to E.O. 14154, which,
among other things, revoked E.O. 11991, the E.O. in which President
Carter had delegated authority to CEQ to promulgate regulations
implementing NEPA and binding agencies in their implementation of NEPA;
DOI's NEPA implementing regulations supplemented those CEQ regulations.
Without E.O. 11991 and its Presidential delegation of authority, CEQ
was obligated to rescind its NEPA implementing regulations and thus it
was imperative for DOI to address supplementary regulations that were
no longer consistent with CEQ direction. The APA did not require the
Department to publish a notice of proposed rulemaking and consider
public comments before the effective date of the rule because three
separate exceptions to that requirement apply: (1) the legacy DOI NEPA
regulations were procedural only and did not dictate or preclude any
DOI actions; rather, the legacy DOI NEPA regulations prescribed
processes for the Department and its bureaus to follow when complying
with NEPA; (2) the legacy DOI NEPA regulations merely provided an
interpretation of a statute rather than making discretionary policy
choices establishing enforceable rights or obligations for regulated
parties; and (3) good cause exists to forgo notice-and-comment
procedures and put the rule into immediate effect because the legacy
DOI NEPA regulations were expressly promulgated to supplement CEQ's
NEPA regulations; following the vacatur and rescission of CEQ's NEPA
regulations, the Department was left with vestigial NEPA regulations
that ``supplemented'' a CEQ regulatory
[[Page 8748]]
regime that no longer existed. 5 U.S.C. 553 (b)(A)-(B).
Moreover, DOI's IFR contained all the elements of a notice of
proposed rulemaking as required by the APA. 5 U.S.C. 553(b); see also
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
591 U.S. 657 (2020). DOI explained its position with sufficient detail
to put the public on notice that it was partially rescinding and
otherwise revising its NEPA implementing regulations and provided its
rationale along with an opportunity to comment. The public understood
the action DOI was taking and took advantage of the opportunity to
comment; DOI received more than 6,600 comments on its IFR. Thus, while
DOI maintains for the reasons noted above that its IFR is subject to
the exceptions set forth in 5 U.S.C. 553(b), this final rule represents
the culmination of a process functionally equivalent to a traditional
notice-and-comment rulemaking regardless of the initial procedural
basis for the IFR.
DOI is issuing this final rule to respond to comments on the IFR
and explain that it is reaffirming its decision to partially remove and
otherwise revise its NEPA implementing regulations, subject to the
additional revisions made by this final rule. This final rule therefore
supersedes the IFR. The public had the opportunity to comment prior to
issuance of this final rule, thereby rendering comments objecting to
the IFR process moot.
Comment: Some Tribes and organizations representing Tribal
interests requested formal government-to-government consultation
regarding the IFR before it took effect. Commenters noted that there
was no communication or notification of the IFR before publication.
Some commenters disagreed with DOI's statement that the IFR does not
require consultation with Tribal governments. Some commenters stated
that the IFR incorrectly states that it is not a regulatory policy with
Tribal implications. Several commenters note that the Federal
Government has a duty to consult with Tribal Nations on Federal actions
that may have Tribal implications, as expressed in E.O. 13175.
Response: Changes to Federal agency NEPA compliance procedures do
not implicate Tribal interests that would be the subject of government-
to-government consultation but pertain only to internal procedures for
agencies to comply with NEPA, including their analysis of environmental
impacts. The way in which agencies conduct analysis of the
environmental impacts of proposed actions is independent of the way
agencies engage in government-to-government consultation about proposed
actions of interest to Tribes, and independent of the way agencies must
comply with other laws and policies. Members of Tribes may always
provide input into agency decision-making. Pursuant to E.O. 13175,
Consultation and Coordination with Indian Tribal Governments (Nov. 6,
2000), agencies must consult with Tribes before promulgating
regulations with Tribal implications in certain instances, none of
which are triggered here. Although DOI is not conducting government-to-
government consultation, it has considered the input from Tribal
governments and organizations representing Tribal interests provided
during the public comment period on the IFR, as reflected in this
rulemaking. Neither the IFR nor this rulemaking alters DOI's duties
towards Tribes.
Comment: Several commenters stated that the IFR is not supported by
adequate reasoning, particularly given the magnitude of change in DOI
NEPA implementing procedures, and that E.O. 14154 does not justify the
move from codified regulations to a handbook.
Response: DOI explained that it revised its NEPA procedures to
adjust for the fact that CEQ regulations no longer exist, conform these
procedures to the 2023 statutory amendments, respond to President
Trump's direction in E.O. 14154, and address the difficulties
associated with the NEPA process and NEPA litigation identified by the
Supreme Court in Seven County Infrastructure Coalition.
DOI also provided more detailed explanation as to how the handful
of provisions that will remain in regulation would operate, including
by explaining the reasons to retain those provisions in regulation and
for the targeted changes made to those provisions and how those changes
are intended to be implemented. DOI is not required to provide the same
kind of detail on the establishment of its internal guidance (i.e., the
DOI NEPA Handbook), where the balance of its NEPA procedures now
reside, but the agency nevertheless provided discussion of the DOI NEPA
Handbook, and made it available for public comment along with the IFR.
Further, the section-by-section discussion of the DOI NEPA Handbook
herein addresses, with particular focus, how concepts that originally
appeared in 43 CFR part 46 are now addressed in the DOI NEPA Handbook.
And as DOI explained, it moved its procedures back to Departmental
policy--where it appeared for decades prior to 2008--for the benefit of
greater flexibility that it provides at this time given that NEPA is
rapidly evolving as reflected in statutory amendments over the last
several years.
Comment: Several commenters requested that the Department recodify
its NEPA regulations instead of providing guidance in the form of a
handbook because the latter lacks the enforceability and consistency
associated with codified regulations.
Response: In response to both E.O. 14192, which requires reducing
regulation, and E.O. 14154, which resulted in CEQ rescinding its NEPA
regulations (40 CFR parts 1500 -1508), the Department reduced its NEPA
regulations and consolidated DOI's NEPA procedures in the DOI NEPA
Handbook. Those changes reflect DOI's reasoned judgment as to how best
to provide for the implementation of NEPA, including in light of recent
amendments to and judicial interpretations of NEPA as a ``purely
procedural statute.'' Further, as noted above, this return of the DOI
NEPA procedures from primarily in regulations to primarily in
Departmental policy--where it appeared for decades prior to 2008--
supports the Departmental goals of flexibility in a changing legal
landscape.
D. Comments on the Consequences of the IFR
Comment: Some commenters stated that the new DOI NEPA procedures
will result in increased litigation and delays. Some comments warned
that the IFR could lead to regulatory questions because there are no
codified procedures and project sponsors may face conflicting standards
due to a combination of regulatory decentralization, legal shifts, and
procedural ambiguity in the DOI NEPA procedures. These commenters
further assert that the new DOI NEPA procedures will result in
deficient records that may need to be supplemented in litigation or as
part of later site-specific actions.
Response: Though these asserted harms are speculative, DOI did
consider previous litigation and judicial precedents in revising the
DOI NEPA procedures, most particularly in moving many of these
procedural provisions from regulation back to Departmental policy
documents. Procedural rules have always been subject to change without
notice and comment. And even if (and to the extent that) DOI's NEPA
regulations are deemed to be interpretive rather than procedural,
notice-and-comment procedures are not required for interpretive
rulemaking, regardless of whether they were
[[Page 8749]]
originally promulgated with notice and comment. See 5 U.S.C. 553(b)(A);
Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015). DOI provided
notice of the DOI NEPA procedure revisions, and the announcement of the
IFR explicitly allows for previously initiated NEPA reviews to proceed
under the previous NEPA procedures as expressed in the 2008 DOI NEPA
regulations when appropriate. Additionally, DOI disagrees with
commenters' assertions that the flexibilities and efficiencies secured
in the new DOI procedures will detract from DOI's ability to assemble
sufficient administrative records or otherwise exacerbate litigation
risk. The basis for DOI's new procedures is the statute as amended, the
implementation of President Trump's policy direction in E.O. 14154
section 5 as consistent with applicable law, and the Supreme Court's
recent, landmark Seven County opinion. DOI is confident that NEPA
implementing procedures shaped under the guidance of these three
pillars will produce legally durable NEPA analyses that are sound as a
matter of policy.
Comment: Several commenters raised concerns that the changes to the
DOI NEPA procedures would potentially cause conflict with State laws,
including third-party compliance with State environmental review
requirements. One commenter stated the revised DOI NEPA procedures
result in an increased burden on States to evaluate impacts of Federal
actions.
Response: With respect to State interests in maintaining DOI's NEPA
implementing procedures in regulation, the removal and revisions do not
change the statutory mandate for agencies to ensure a coordinated
environmental review process with the States. See 42 U.S.C. 4332(2)(C),
4332(2)(G), 4332(2)(J), 4334, and 4336a. State obligations and
authorities related to the evaluation of Federal actions are unchanged
by the revision of the DOI NEPA procedures--much less by their return
from a regulatory to a Departmental policy format.
Comment: Several commenters noted differences between DOI's NEPA
procedures and those of other Federal agencies that issued NEPA
procedures concurrently and requested more consistency or expressed
preferences regarding aspects of the NEPA procedures. Some of the
preferences noted included maintaining previous DOI NEPA procedure
regulatory text or revising remaining DOI NEPA procedure regulatory
text or guidance. For example, several commenters suggested that DOI
adopt NEPA procedures used by other agencies, such as the U.S.
Department of Agriculture extraordinary circumstances review protocol
for reliance on categorical exclusions.
Response: DOI carefully considered revisions to its NEPA procedures
based on the experience of its bureaus and believes the changes, with
the edits made in this final rule and the revisions to the DOI NEPA
Handbook, provide for both consistency and increased effectiveness in
DOI decision-making for its mission and programs. CEQ, including
through the working group created by E.O. 14154, is coordinating the
revision of Federal agency-level implementing procedures for
consistency. This is in keeping with Congress's direction that agencies
consult with CEQ when developing their procedures for implementing
NEPA, see 42 U.S.C. 4332(2)(B).
Comment: Several commenters stated that DOI failed to provide a
reasoned explanation for the decision to largely rescind its NEPA
regulations in favor of establishing the DOI NEPA Handbook.
Response: As explained in the IFR and this final rule, NEPA ``is a
purely procedural statute'' that covers internal processes, Seven
County Infrastructure Coalition, 605 U.S. at 173, and DOI's
implementation of that procedural statute need not be in regulation.
And, as explained above, DOI's legacy regulations were procedural
only--those regulations merely described processes for DOI and its
bureaus to follow when complying with NEPA. Many Federal agencies do
not have NEPA procedures in regulation, just as DOI did not have its
NEPA procedures in regulation before 2008, and agencies have discretion
to determine the form of their NEPA procedures for effective NEPA
implementation. DOI finds the benefit of greater flexibility that
guidance provides appropriate at this time given that NEPA is rapidly
evolving as reflected in statutory amendments over the last several
years.
Comment: Several commenters asserted that DOI failed to adequately
explain its departure from CEQ's rescinded regulations and policy
positions. These comments suggest that DOI is required to acknowledge
CEQ's earlier positions, identify with specificity where DOI's
regulations and NEPA Handbook differ from them, and justify those
differences in light of CEQ's prior interpretations of NEPA or retain
CEQ's regulations.
Response: As explained in greater detail above, DOI acknowledges
that CEQ's regulations previously provided a framework for NEPA
compliance and informed agency practices. However, as CEQ explained in
its final rule affirming the removal of its regulations, CEQ lacks
independent statutory authority to maintain NEPA implementing
regulations that bind agencies in the absence of an executive order
delegating rulemaking authority to CEQ. 91 FR at 622-23; see also
Executive Order 14154, Unleashing American Energy, 90 FR 8,353.
Accordingly, agencies may now exercise discretion to adopt procedures
consistent with NEPA and executive policies. Indeed, as DOI explained
in its IFR, because DOI's prior NEPA implementing procedures were
expressly designed as a supplement to CEQ's rescinded regulations,
CEQ's recission necessitated that DOI adopt new procedures designed to
independently implement NEPA.
While some commenters evaluated DOI's NEPA implementing procedures
against CEQ's prior regulations, DOI does not consider the adoption of
its new procedures to be a departure from DOI's own prior policy simply
because CEQ may in the past have expressed a different view on a given
point of NEPA implementation. DOI's primary foundation for the updates
to its NEPA procedures, as explained above, is the statute and Supreme
Court precedent. Instead of seeking to carry forward or build upon
CEQ's repealed procedures, DOI focused on developing NEPA procedures to
meet the statutory requirements found in 42 U.S.C. 4321-4347. DOI
disagrees that it must retain elements of the former CEQ regulations
simply because CEQ in its rescinded regulatory regime included those
elements and provided some rationale for so doing. CEQ's regulations no
longer govern agency compliance, and the relevant question is whether
DOI's procedures satisfy NEPA's requirements. As explained in this
rulemaking, DOI has determined, after consultation with CEQ and
consideration of comments received, that procedures adopted here as
final satisfy NEPA's requirements and DOI's other statutory
responsibilities. DOI's updated NEPA procedures appropriately account
for DOI's specific authorities and activities, the environmental
effects it typically encounters, and the need for timely and efficient
decision-making, as well as for significant changes in law since DOI
established its prior regulations. Nevertheless, where relevant and
appropriate, this preamble to the final rule addresses aspects of DOI's
NEPA procedures that follow or depart from aspects of CEQ's prior
approach.
Comment: Some comments noted that DOI did not explain how its
approach to implementing NEPA compared to approaches adopted by other
agencies. For example, commenters raised issue
[[Page 8750]]
with DOI using a non-codified handbook to implement NEPA, where
differently some agencies codified some or all of their NEPA
implementing regulations.
Response: DOI recognizes that its approach to implementing NEPA may
differ from other agencies' approaches to implementing NEPA. Through
issuance of this final rulemaking and NEPA Handbook, DOI has determined
the best position for DOI to establish NEPA implementing procedures
that fit its programs and authorities. Following the removal of CEQ's
NEPA regulations, DOI has flexibility to determine agency-specific NEPA
procedures to modernize, simplify, and accelerate NEPA reviews and
support responsible development.
Furthermore, DOI notes that NEPA requires agencies to consult with
CEQ when developing agency NEPA procedures. See 42 U.S.C. 4332(2)(B).
NEPA does not require agencies to coordinate with one another to ensure
identicality between their respective NEPA procedures, let alone
between the means by which each agency issues those procedures.
Agencies' statutory authorities and subject-matter expertise differ
greatly, and variance on these matters is to be expected. Indeed,
agencies' NEPA procedures were not homogenous or identical during the
era in which CEQ maintained overarching implementing regulations, and
there is no requirement or reasonable expectation that they should be
so once those CEQ regulations have been vacated and rescinded.
Comment: Some commenters, citing a 2025 CEQ report from the
previous administration, take the position that the data do not support
the need to implement measures to shorten timelines for the completion
of environmental assessments and environmental impact statements. At
least one commenter claims that trends towards longer timelines had
been reversed by the policies of the previous administration.
Response: DOI has concluded that further measures are necessary to
meet the statutory requirements of NEPA and the policies set forth in
E.O. 14154. As part of the FRA, Congress amended NEPA to add mandatory
deadlines and related procedural reforms for the development of
environmental assessments and environmental impact statements. 42
U.S.C. 4336a(g). Specifically, Congress identified certain triggering
events and directed agencies to complete environmental assessments and
environmental impact statements within one and two years, respectively,
of those events. Id. To enforce these deadlines, Congress provided
project sponsors with a cause of action to seek judicial review of an
agency's failure to act by the deadline. Id. 4336a(g)(3).
The 2025 CEQ report on which commenters rely compared median
timelines for environmental impact statements completed from 2013 to
2016 (3.5 years), 2017 to 2020 (3.1 years) and 2021 to 2024 (2.4
years). CEQ, Environmental Impact Statement Timelines (2010-2024), at 4
(Jan. 13, 2025). Though CEQ noted the general downward trend in the
amount of time taken to prepare environmental impact statements, it did
not evaluate how fewer statements being completed over the periods it
analyzed may have contributed to this trend: 2013 to 2016 (621
statements); 2017 to 2020 (436 statements); and 2021 and 2024 (232
statements). For example, CEQ did not assess whether the decline from a
median of 3.1 years (2017-2020) to 2.4 years (2021-2024), a 22.6
percent decrease, could be attributed to a 46.8 percent decline in
total statements completed. Similarly, CEQ did not assess whether
Federal resources available for completing environmental reviews
changed over these periods. CEQ also declined to analyze average
timelines over these same periods, relegating those averages from 2010
to 2024 to a simple chart. But the report's accompanying spreadsheet
estimates that environmental impact statements were completed in 4.1
years on average from 2010 to 2024.
Even assuming CEQ's characterizations were accurate, the report
states that environmental impact statements were not completed within
the statutorily required two-year period when measured by the median of
completed statements. CEQ's data shows that agencies, without more
fundamental reform, would not achieve compliance with the statute as
amended. Commenters have not provided a basis for DOI to alter its view
that the reforms in the IFR as finalized in this final rule are an
appropriate means to accomplish compliance with NEPA and the policies
of the United States. Regardless, DOI concludes that CEQ's 2025 report
is flawed. An equally plausible explanation for its data is the large
reduction in output, i.e., fewer environmental impact statements. DOI
notes that the Inflation Reduction Act also provided hundreds of
millions of dollars above baseline Federal spending for expediting and
improving environmental reviews during the 2021 to 2024 period. Public
Law 117-169. DOI cannot rely on CEQ's prior conclusions about the
reasons for the downward trend in time needed to complete environmental
impact statements when alternative explanations for those conclusions
were plainly ignored.\1\ Moreover, DOI cannot rely on CEQ's report
where the fundamental conditions are reversed. This administration's
policies are designed to increase output and demand energetic,
efficient responses to a declared energy emergency, see E.O. 14156,
Declaring a National Energy Emergency, 90 Fed Reg. 8,433 (Jan. 29,
2025); see also Continuation of the National Emergency With Respect to
Energy, 91 FR 1,667 (Jan. 14, 2026), and related Executive Orders. See,
e.g., E.O. 14154, Unleashing American Energy, 90 FR 8,353.
---------------------------------------------------------------------------
\1\ DOI acknowledges that it relies in part on the 2025 CEQ
report in the regulatory impact analysis (RIA) accompanying this
action. DOI did so because that study is a recent attempt to provide
EIS timeline data, and it specifically includes data on EISs issued
by DOI bureaus. While DOI has employed the study for purposes of RIA
analysis in this regard, we explain here in this final rule why the
study does not bear the weight commenters place on it as a matter of
policy.
---------------------------------------------------------------------------
E. Comments on DOI-Specific NEPA Procedures
Comment: Some commenters expressed concerns and proposed edits or
text changes to the DOI NEPA procedures to provide clarity or address
their specific concerns.
Response: DOI has considered comments and, in some cases, where DOI
agrees with the commenter, has made edits to either the regulatory text
in the final rule or to the DOI NEPA Handbook. Regulatory text changes
in the final rule are non-substantive changes from the IFR and
described in Section II above. Text changes to the DOI NEPA Handbook
that is reissued concurrently with the final rule reflect both
substantive and editorial revisions to address corrections or provide
clarity.
Comment: Many commenters expressed concerns about removing NEPA
procedures from regulation, which often include notice-and-comment
rulemaking, and one commenter ``cautions against moving entirely to
guidance documents rather than notice-and-comment rulemaking.''
Response: From soon after the enactment of NEPA in 1970 through
2008, the DOI NEPA procedures appeared solely in guidance. This
procedural guidance was subject to notice-and-comment requirements only
by virtue of CEQ regulations that have now been rescinded. See 43 Fed
Reg. 55,978, 56,003 (Nov. 29, 1978) (promulgation of CEQ's NEPA
implementing regulations, directing agencies to publish their proposed
procedures for comment); 91 FR 618 (Jan. 8, 2026) (final rule adopting
[[Page 8751]]
interim final rule rescinding CEQ's NEPA implementing regulations).
Contrast 42 U.S.C. 102(2)(B) (Congressional direction to agencies to
``develop methods and procedures'' in consultation with CEQ to
implement NEPA, with no notice-and-comment requirement). As the
procedural guidance is binding only on the DOI bureaus themselves, it
is guidance that does not need to be in regulation or be subject to
notice-and-comment requirements for rulemakings under the APA. And as
explained above, DOI finds the benefit of greater flexibility that
guidance provides appropriate at this time given that NEPA is rapidly
evolving as reflected in statutory amendments over the last several
years.
Comment: Many commenters expressed concerns that all cooperating
agency provisions were removed from regulation, stating that durability
and consistency is provided when these provisions are codified in
regulation. One commenter stated, ``[NEPA] reflect[s] a deliberate
congressional commitment to cooperative federalism. The IFR[ ] should
be revised to reflect the full breadth of this mandate by reinstating
clearly defined, enforceable provisions for engaging cooperating
agencies . . . .''
Response: In response to these and other comments, and to better
implement the statutory requirement for lead agencies to coordinate
with them, 42 U.S.C. 4336a(a) and (b), DOI has reinserted modified
regulations for the designation of lead agencies and the selection of
cooperating agencies at 43 CFR 46.220 and 46.225, respectively. Because
DOI recognizes the unique and special role that cooperating agencies,
as representatives of sovereign governments, have in the Federal NEPA
process, and because Congress has specifically provided a mechanism in
statute for these government agencies to participate under appropriate
circumstances in the cooperating agency process, DOI has elected to
transfer the procedures governing that process from the DOI NEPA
Handbook to the Code of Federal Regulations.
Comment: One commenter proposed edits to the DOI NEPA Handbook that
would require all eligible governmental entities be approved as
cooperating agencies and would eliminate the bureaus' discretion to
deny requests by eligible agencies for cooperating agency status.
Response: DOI is declining to restrict the discretion to consider
whether to approve requests for cooperating agency status granted to
lead agencies by NEPA in section 107(a)(3)(B), 42 U.S.C.
4336a(a)(3)(B). Such requests cannot be arbitrarily denied under the
DOI NEPA procedures. See 43 CFR 46.225(c).
Comment: Commenters raised concerns regarding public participation
in NEPA processes and that the revised DOI NEPA procedures alter the
long-standing, but now-abrogated, opportunities for public
participation, for example by not requiring public comment with the
issuance of a draft environmental impact statement, and that in light
of the benefits to the agency from public comment periods and other
forms of public participation, the reasoning to support that change was
inadequate and arbitrary. Additionally, some commenters asserted that
DOI has not sufficiently explained why it is not practicable for its
NEPA procedures to impose across-the-board requirements that DOI
solicit comment beyond those stages in the NEPA process that Congress
has mandated.
Response: The updates to DOI's NEPA public participation
procedures, including in the final rule, mirror what NEPA requires. As
discussed above, in the past, CEQ's NEPA regulations substantially
guided and informed the content of DOI's NEPA procedures. CEQ's NEPA
regulations, in all their iterations dating back to 1978, included
procedural requirements that exceed those required by the statute. With
respect to public participation in particular, CEQ's regulations
historically included comment periods that the statute does not compel.
For example, CEQ's 1978 regulations directed agencies to prepare
environmental impact statements ``in two stages,'' 40 CFR 1502.9
(1978), which included circulation of a draft environmental impact
statement for public review and comment. 40 CFR 1503.1(a)(4) (1978).
CEQ's NEPA regulations have now been rescinded by CEQ, Removal of
National Environmental Policy Act Implementation Regulations, 91 FR 618
(Jan. 8, 2026). In response, DOI developed its own updated NEPA
regulations and other NEPA procedures, implementing the President's
direction in E.O. 14154, Unleashing American Energy, 90 FR 8353, and
E.O. 14192, Unleashing Prosperity Through Deregulation, 90 FR 9065
(Feb. 6, 2025), to ensure that regulatory requirements are grounded in
applicable law and to alleviate any unnecessary regulatory burdens. In
doing so, DOI considered the appropriate scope of its public
participation processes, including whether to define these processes in
regulation or by guidance. Having elected to proceed by guidance to
allow for greater flexibility to engage in the appropriate mode and
extent of public participation on a case-by-case basis, DOI designed
the DOI NEPA Handbook that replaces the repealed regulations to reflect
the statute's requirements.
NEPA, as amended by the Fiscal Responsibility Act of 2023, requires
agencies to take public comment in only one specific circumstance: when
agencies issue a notice of intent to prepare an environmental impact
statement. See 42 U.S.C. 4336a(c). This requirement is fully
incorporated into DOI's updated NEPA procedures, which provide, for
example, that when a bureau intends to prepare an environmental impact
statement, the bureau must publish a notice of intent to prepare an
environmental impact statement in the Federal Register. DOI NEPA
Handbook 1.8(b). Consistent with the statute, the DOI procedures
specify that a notice of intent to prepare an environmental impact
statement shall include ``a request for public comment on alternatives
or effects and on relevant information, studies, or analyses with
respect to the proposed agency action.'' DOI NEPA Handbook 1.8(b)(1).
In developing its regulations and NEPA Handbook, DOI elected not to
create new and additional public participation requirements that are
not grounded in applicable law and which would result in unnecessary
regulatory burdens. DOI was also mindful that NEPA, as amended by the
Fiscal Responsibility Act, now includes statutory deadlines that
agencies must meet. See 42 U.S.C. 4336a(g)(1) (establishing a two-year
deadline to prepare environmental impact statements and a one-year
deadline to prepare environmental assessments). Mandating a comment
period for all environmental impact statements and environmental
assessments would not only go beyond statutory requirements but could
be in tension with DOI's statutory obligation to meet these deadlines.
Though it need not have done so, DOI has established in its NEPA
procedures that when a DOI bureau intends to prepare an environmental
impact statement, the bureau must publish a Federal Register notice of
such intent. DOI NEPA Handbook 1.8(b). And while a bureau intending to
prepare an environmental assessment may publish a notice of intent to
prepare an environmental assessment, it need not do so. DOI NEPA
Handbook 1.8(b). In this respect, the DOI NEPA Procedures are
consistent with long-standing flexibility regarding whether and how an
agency involves the public when preparing an environmental assessment,
as expressed in both the 1978 CEQ regulations and the 2008 DOI NEPA
[[Page 8752]]
regulations. See 40 CFR 1506.6(a) (requiring only ``diligent efforts'';
rescinded); 43 CFR 46.305 (requiring bureaus to provide for public
notification and public involvement when an environmental assessment is
being prepared only ``to the extent practicable''; rescinded). That is,
pre-decisional public involvement when a bureau was preparing an
environmental assessment was never guaranteed. While DOI has considered
and agrees with comments describing how the agency decision-making
process can be improved by public comments and other forms of public
participation, Congress has not elected to make pre-decisional public
involvement a requirement. Crucially, however, the fact that DOI's NEPA
procedures no longer prescribe a particular public comment process or
period over and above what NEPA requires--apart from the DOI decision
to require bureaus to publish a notice of intent in the Federal
Register that invites comment when intending to prepare an
environmental impact statement--does not prevent DOI bureaus from
exercising their discretion to solicit additional public comment when
they determine that doing so would be appropriate or helpful. Indeed,
since publication of the IFR and DOI NEPA Handbook, DOI bureaus have
regularly sought public comment on draft or preliminary NEPA documents.
They have voluntarily elected to do so in a variety of contexts,
including inviting public comment on certain environmental assessments
for forestry and timber actions, see, e.g., the Outlaw Ridge Timber
Management Project, DOI-BLM-ORWA-N010-2025-0011-EA (BLM Cascades Field
Office, Oregon); fluid mineral development, see, e.g., Hazel Inez Multi
Well Project, DOI-BLM-NM-P020-2026-0287-EA (BLM Carlsbad Field Office,
New Mexico); road maintenance, see, e.g., Yellowstone National Park,
North Entrance Road Reconstruction Project EA, PEPC 115825 (NPS January
2026); habitat conservation plans, see, e.g., Environmental Assessment
of a Proposed Habitat Conservation Plan and Incidental Take Permit for
the Dunes Sagebrush Lizard (Sceloporus arenicolus) in New Mexico, FWS-
R2-ES-2025-0053-0002 (FWS December 2025); and recreation and visitor
services. See Grand Teton National Park, Reimagining the Taggart Lake
Experience, PEPC 119939 (NPS August 2025); SR9 Campground Management,
DOI-BLM-UT-C030-2025-0019-EA (BLM St. George Field Office, Utah).
Finally, although it should go without saying, what NEPA may or may not
require regarding public involvement does not change what other
statutes might require; agencies must comply with the provisions of all
statutes applicable to their actions.
Additionally, DOI notes that commenters specifically cite section
2(b) of E.O. 11514, 35 FR 4247 (March 7, 1970), President Nixon's
initial executive order regarding implementation of NEPA following the
Act's original passage, in which President Nixon provided that agency
NEPA implementing procedures ``shall include, whenever appropriate,
providing for public hearings.'' In this regard, President Trump's E.O.
14154 at section 2(b) provides that it is the policy of the United
States that agencies ``provide opportunity for public comment.'' DOI
notes that this provision of 14154 is not specifically directed towards
NEPA implementation, but rather is contained in the introductory policy
section of the Executive Order, which addresses the national interest
in affordable and reliable energy and natural resources. President
Nixon's Executive Order, which is specifically directed towards NEPA
implementation, also specifically provides that agency NEPA procedures
shall provide public hearings ``whenever appropriate'' and ``the
fullest practicable'' provision of public information.
DOI's view is that the NEPA implementing procedures it adopted via
the summer 2025 IFR and Handbook, and this final rule and Handbook,
constitute an appropriate execution of the policy direction in these
two Executive Orders. Specifically: given both Congress's imposition of
deadlines in the 2023 statutory amendments to NEPA and President
Trump's specific direction with respect to permitting reform in E.O.
14154 section 5 that, consistent with applicable law, efficiency be
prioritized over other policy values; and mindful that President
Nixon's Executive Order both predated the 2023 statutory amendments and
President Trump's Executive Order; and furthermore that President
Nixon's Executive Order conditioned its references to public engagement
with the qualifier that they be ``practicable''; DOI's view is that its
NEPA implementing procedures are consistent with these Executive Orders
because they provide for public comment where Congress has directed all
agencies to do so under NEPA, and, as explained elsewhere in this
document, that DOI has and will continue to exercise its discretion to
solicit additional public comment when it determines that doing so
would be appropriate or helpful.
Comment: Some commenters asserted that public participation is
central to NEPA and that DOI is required to invite and respond to
comments on draft environmental documents.
Response: DOI disagrees that NEPA requires it prepare draft
environmental documents and solicit public comment on each one. Before
the FRA amendments to NEPA, the statute contained no requirement to
solicit public comment at any stage in the NEPA process. As discussed
in Section I.A., supra, NEPA's only reference to public review of an
agency's environmental document stated that ``[c]opies of [the
environmental impact statement] and the comments and views of the
appropriate Federal, State, and local agencies . . . shall be made
available . . . to the public as provided by section 552 of title 5,''
also known as FOIA. 42 U.S.C. 4332(2)(C). Nonetheless, even this
provision does not contemplate solicitation of public comment; it
merely speaks of the public's ability to view an environmental impact
statement and comments submitted by certain governmental agencies.
CEQ's prior regulations generally required, in relevant part, that
agencies prepare and provide members of the public an opportunity to
comment on a draft environmental impact statement. 40 CFR 1503.1 (1978)
(rescinded). However, Congress comprehensively amended NEPA in the FRA
to provide more prescriptive instructions to agencies on completing
timely and unified Federal NEPA reviews. 42 U.S.C. 4336a. Specifically,
Congress expressly provided for public comment for the first time, at
one and only one step of the process for developing an environmental
document: when an agency issues a notice of intent to prepare an
environmental impact statement, it must invite public comment on that
notice regarding ``alternatives or impacts and on relevant information,
studies, or analyses with respect to the proposed agency action.'' 40
U.S.C. 4336a(c). Congress retained the original obligation to make the
environmental impact statement available through FOIA.
Congress elected to require public comment only at the notice of
intent stage in the NEPA process. DOI's view is that comment at the
notice of intent stage is unique: It provides an opportunity for fact-
gathering from persons who may have relevant (indeed, unique)
information about environmental conditions of land they live on or by
with respect to projects that the bureau has determined will have a
significant effect on the
[[Page 8753]]
environment. It makes sense that Congress required solicitation of
public comment on all notices of intent to prepare an environmental
impact statement, while imposing no such requirement with respect to an
environmental assessment, both because Congress imposed a shorter
deadline for agencies to develop an environmental assessment than to
develop an environmental impact statement and because an environmental
assessment, by definition, is typically prepared only for proposed
actions that do not have reasonably foreseeable significant
environmental effects. Accordingly, Congress intended that government
and public resources should focus on developing and facilitating public
engagement on matters considered in environmental impact statements.
DOI's revised regulations reflect this statutory structure.
DOI's NEPA procedures are thus consistent with Congress's
instruction to provide an opportunity for members of the public to
comment on the notice of intent to prepare an environmental impact
statement. DOI will continue to make its environmental documents
available to the public consistent with FOIA, and this requirement is
not affected by this rulemaking. DOI otherwise maintains discretion to
offer opportunities for public comment on draft environmental documents
as appropriate.
Comment: Commenters assert that DOI must independently justify the
removal of certain public participation procedures, having acknowledged
the importance of public engagement in the NEPA process during the
rulemaking in which it codified in regulation its NEPA implementing
procedures in 2008. Specifically, a commenter stated that the removal
of consensus-based management from DOI regulations requires independent
justification.
Response: As explained elsewhere in this document, DOI continues to
believe that public engagement is an important part of the NEPA
process, where Congress has seen fit to require it, or in those cases
in which it would be helpful and appropriate. As noted elsewhere in
this notice, after DOI revised its NEPA implementing process in the
IFR, it has elected to take comment in multiple NEPA reviews where its
revised procedures did not impose such obligation. Consensus-based
management was never a requirement of NEPA; it was a policy preference
toward documenting public input in a certain way during the NEPA
process. Members of the public have always been able to suggest
reasonable alternatives for analysis to Federal agencies and remain
able to do so. As agencies are required to evaluate a reasonable range
of alternatives, the agencies must necessarily evaluate reasonable
alternatives presented by the public if not already considered.
Comment: Some commenters argued that DOI, rather than adopting the
NEPA implementing procedures that it adopted in the summer of 2025 IFR,
should instead have adopted some or all of the provisions of one or
more of CEQ's now-rescinded NEPA regulations.
Response: As DOI explains elsewhere in this document, the DOI NEPA
procedures as adopted in the summer 2025 IFR and this final rule are
not simply a subsequent iteration of the policies previously contained
in CEQ's now-rescinded regulations, or a direct successor to them, but
rather draw upon and implement the requirements of NEPA itself. DOI
explained in the IFR and explains further in this final rule why it has
adopted the NEPA implementing procedures that it has adopted, some
aspects of which are the same as those in CEQ's now-rescinded
regulations and others of which differ. It would not have been
appropriate for DOI to more generally adopt CEQ's regulations, which
were the product of and based on an Executive Order granting CEQ
regulatory authority that has now been rescinded, and of which all but
the 2024 rule did not have the benefit of Congress's major overhaul of
NEPA in 2023; even with respect to the 2024 CEQ rulemaking, that
rulemaking did not have the benefit of the Supreme Court's major,
recent Seven County opinion, which instructed agencies, lower courts,
and the general public that NEPA's effects analysis properly operates
in a manner much different than that which formed the basis of the 2024
rule.
Comment: Various commenters asserted that the removal of
regulations would affect environmental reviews of proposed actions, and
would result in unexamined, unaddressed, and unmitigated impacts,
specifically those related to climate change, environmental justice,
and cumulative impacts. Commenters also asserted that DOI did not
explain its decision to remove references to concepts such as ``direct
effects,'' ``indirect effects,'' ``cumulative effects,''
``environmental justice concerns,'' and ``climate-change-related
effects.''
Response: First, as explained elsewhere in this preamble, the
return of DOI's NEPA procedures from regulation to Departmental policy
format does not, itself, change the procedural requirements of NEPA
compliance for DOI's bureaus. The statute itself sets forth the
framework of those procedural requirements and DOI's NEPA procedures,
however formatted, merely elaborate upon that framework, hewing as
closely as possible to the statutory provisions. Second, NEPA does not
contain any provisions addressing any specific type of environmental
impact. Direction from within the executive branch may in the past have
pushed agencies to articulate environmental analysis according to
artificial distinctions between ``direct,'' ``indirect,'' and
``cumulative'' types of effects, or to place special emphasis upon
certain categories of effects (i.e., ``climate change,''
``environmental justice''), but that direction has now been rescinded.
See 91 FR 618 (Jan. 8, 2026) (final rule rescinding CEQ's NEPA
regulations); Executive Order 14173, Ending Illegal Discrimination and
Restoring Merit-Based Opportunity (Jan. 21, 2025) (revoking Executive
Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations; Executive Order 14154,
Unleashing American Energy, 90 FR 8353 (Jan. 20, 2025) (revoking
Executive Order 14096, Revitalizing Our Nation's Commitment to
Environmental Justice for All). In other words, the distinctions and
concepts identified by commenters do not exist in statute and were
conceptual creations of CEQ, agencies, and courts to formulate analysis
and guide agency decision-making.
Instead of formulating the evaluation of environmental effects of
bureau action using the artificial devices of ``direct,'' ``indirect,''
and ``cumulative'' effects that do not appear in the statute, DOI's
NEPA procedures focus on the underlying principle of what constitutes
an ``effect.'' In reorienting the focus of its procedures, DOI does not
change or purport to change the scope of effects that DOI bureaus are
required by statute to consider. Both before and after the updates to
DOI's NEPA procedures, DOI bureaus were and are required to consider
effects that are both reasonably foreseeable and have a reasonably
close causal relationship to their proposed actions, each including a
reasonable range of action alternatives, consistent with the statute,
as clarified by the Supreme Court in Public Citizen and Seven County
Infrastructure Coalition. Additionally, in light of Supreme Court's
decision in Seven County Infrastructure Coalition, DOI elected to
update its procedures to reflect the phrasing provided by the Supreme
Court regarding effects. That is, ``agencies may, but are not required
to, analyze environmental effects from
[[Page 8754]]
other projects separate in time, or separate in place, or that fall
outside of the bureau's regulatory authority, or that would have to be
initiated by a third party. If the bureau determines that such analysis
would assist it in reasoned decision-making regarding the proposed
action, it will document this determination in the environmental
assessment and explain where it drew a reasonable and manageable line
relating to the consideration of such effects from such separate
projects.'' DOI NEPA Handbook 1.5(c). ``Similarly, the bureau will
document in the environmental assessment where and how it drew a
reasonable and manageable line relating to its consideration of any
environmental effects from the proposed action that extend outside the
geographical territory of the project or might materialize later in
time.'' Id. (citing Seven County Infrastructure Coalition, 605 U.S.
168). This language, adapted directly from Seven County Infrastructure
Coalition, provides DOI with direction on how to consider, as
appropriate, the environmental consequences of bureau action that may
previously been expressed in concepts such as ``indirect effects'' and
``cumulative effects.'' This focus on the meaning of ``effect'' has led
DOI to restore in large part the concept of ``connected action'' to the
way it was defined in the CEQ's 1978 regulations, with clarifying
emphasis that the subject of analysis is the Federal action, not action
taken by non-Federal entities. See 40 CFR 1508.25(a)(1) (rescinded).
Even as originally defined in CEQ's 1978 regulations, the term
``cumulative impact'' referred to the ``incremental impact'' of the
agency proposed action in relation to the context within which that
action was taken. See 40 CFR 1508.7 (rescinded). That is, the focus,
even of the ``cumulative impact analysis'' should always have been on
change wrought by the effects of the proposed action, and Seven County
Infrastructure Coalition merely refines that focus.
As to one term--climate change--to which the comment refers, that
term has never appeared in DOI's NEPA procedures previously.
DOI will conduct its NEPA reviews in accordance with statutory
requirements and relevant caselaw, such as the Supreme Court's decision
in Seven County Infrastructure Coalition.
F. Alternative Arrangements
Comment: Various commenters urged the Department to reconsider
decisions made in reliance on alternative arrangements for compliance
with NEPA. Alternative arrangements are flexible procedures authorized
by CEQ that agencies can use when there is an immediate threat to human
health or safety, urgent action is needed to protect valuable natural
or cultural resources, and the standard process would create delays in
critical response efforts (collectively described in DOI's regulations
as ``Emergency Responses''). In addition, several commenters raised
questions regarding the use of alternative arrangements for energy-
related projects related to E.O. 14156, Declaring a National Energy
Emergency.
Response: These comments are outside the scope of this rulemaking.
Importantly, these alternative arrangements do not waive NEPA
compliance, they simply provide a different path to meets its
requirements. Particular determinations under the DOI NEPA procedures
related to E.O. 14156 are not within the scope of this rulemaking,
which pertains solely to the establishment or revision of DOI
procedures for compliance with NEPA.
Comment: A commenter requested that DOI remove the discretionary
authority currently granted to Responsible Officials in the DOI NEPA
procedures, such as the alternative arrangements under 43 CFR 46.150.
Response: It is appropriate for Responsible Officials to have a
degree of discretion in conducting NEPA reviews, especially with
respect to internal procedures. Further, DOI does not claim to have the
authority to exempt actions from NEPA or to otherwise excuse
noncompliance, regardless of whether an emergency exists. DOI's
emergency response provisions, including its ``alternative
arrangements'' process, do not circumvent NEPA compliance obligations
but rather enable DOI to establish alternative means for NEPA
compliance to ensure that it can act swiftly to address emergencies
while also meeting its statutory obligations under NEPA.
G. Applicant-Prepared Information and Environmental Documents
Comment: Some commenters expressed concern about the procedures and
content associated with applicant-prepared environmental assessments
and environmental impact statements stating they do not provide enough
guidance, may create a risk of bias and conflict of interest, and raise
questions about the scientific accuracy of the NEPA analyses in the
documents.
Response: As noted in the IFR, DOI is ensuring that its procedures
conform to the statute, including the amendments made by the FRA
directing agencies to provide for procedures governing applicant-
prepared environmental assessments and environmental impact statements
42 U.S.C. 4336a(f). In the IFR, DOI established procedures for
applicant-prepared environmental assessments and environmental impact
statements at 43 CFR 46.107. These procedures ensure that applicant-
prepared NEPA documents are completed according to standards required
by the DOI Responsible Official. They require the submission of a
professional integrity statement by the applicant or applicant-directed
contractor, as applicable. Id. at 46.107(g). They also require
applicants or their contractors to furnish to DOI bureaus ``all
relevant supporting information, including all studies, surveys, and
technical reports'' used to support applicant-prepared environmental
assessments or environmental impact statements. Id. at 46.107(f).
Applicants or their contractors must further ``certify that the
materials provided to the bureau are complete for the bureau's
independent review.'' Id. As to conflicts of interest, the fact that
NEPA provides for applicants (who, by definition, have an interest in
the outcome of the Federal review of their application) to prepare NEPA
documents in the first instance indicates Congress resolved any concern
over potential conflicts of interest in favor of allowing applicant and
applicant-contractor prepared NEPA documents. As outlined in the FRA,
it is ultimately the responsibility of DOI to ensure applicant-prepared
documents comply with NEPA and associated DOI policy. DOI's NEPA
procedures therefore clarify that each DOI bureau relying on an
applicant-prepared environmental assessment or environmental impact
statement ``must independently evaluate and verify that the
environmental analysis, including the methodologies used by the
applicant or applicant-directed contractor,'' and verify that the
environmental analysis meets applicable legal and bureau standards. Id.
Comment: At least one commenter stated that NEPA does not preclude
applicant preparation of documentation, even beyond environmental
assessments and environmental impact statements. The commenter
requested that DOI make clear in the regulation that Determination of
NEPA Adequacy (DNA) checklists may be prepared by applicants and
applicant-directed contractors.
Response: NEPA directs agencies to ``prescribe procedures''
governing the preparation of an environmental assessment or
environmental impact statement, consistent with the agency's statutory
obligation to ``independently
[[Page 8755]]
evaluate the environmental document and . . . take responsibility for
the contents.'' 42 U.S.C. 4336a(f). DOI's final rule does so at 43 CFR
46.107. Additionally, the rule does not preclude preparation of split
documents (i.e., drafted in part by an applicant or applicant-directed
contractor and in part by the agency), nor does it preclude applicants
from providing information to assist DOI in the preparation of
environmental documentation, such as DNA checklists. When not preparing
the environmental assessment or environmental impact statement,
applicants may provide information that the Responsible Official
evaluates and uses in the environmental review or making a
determination of NEPA compliance.
H. Categorical Exclusions and Extraordinary Circumstances
Comment: Some commenters expressed concerns regarding a perceived
overreliance on categorical exclusions in the DOI NEPA procedures,
stating that categorical exclusions could be used to circumvent
engaging the public in environmental reviews.
Response: Categorical exclusions can apply to a category of actions
that a Federal agency has determined normally does not significantly
affect the quality of the human environment within the meaning of
section 4332(2)(C) of the statute. 42 U.S.C. 4336e(1). Categorical
exclusions are a longstanding and legally recognized tool under NEPA
that allow agencies to efficiently manage routine actions that they
have determined do not normally result in any significant effects to
the human environment. See 43 CFR 46.205. Categorical exclusions remain
a vital tool for streamlining environmental review. Categorical
exclusions established or adopted for the use of the bureaus are
included in Appendix 2 of the DOI NEPA Handbook and are tailored to
bureau-specific activities, such as routine maintenance, administrative
actions, and certain land management operations. It is important to
note that the DOI NEPA Handbook requires that before applying a
categorical exclusion, each proposed action must undergo a review to
determine that it applies and that no extraordinary circumstances exist
(see 43 CFR 46.215). Finally, expanding or updating categorical
exclusions does not limit public involvement for projects where
significant effects are possible.
Comment: One commenter suggested that the ``[P]roposal to allow any
of [DOI's] individual bureaus to utilize any categorical exclusions
adopted by any other bureau within DOI is far too sweeping [and] may be
suitable only to the other bureau's circumstances'' and potentially
unsuitable to covering another bureau-specific action.
Response: The focus of a categorical exclusion is on the
characteristics of the proposed action and that the proposed action
does not result in significant impacts, not on the identity of the
agency that conducts the action. There is, therefore, no reason in
principle that a bureau cannot apply another agency's categorical
exclusion for the same kind of proposed action. Should a bureau's
proposed action be different from the proposed action encompassed by
the other bureau's categorical exclusion, there would be no reason for
the bureau to apply that other bureau's categorical exclusion, and the
concerns the commenter raises would not arise. Likewise, where a
bureau's categorical exclusion could apply only to that bureau's
actions--for example, because of unique programmatic aspects--other
bureaus could not seek to apply that CE to their actions. In the case
of DOI bureaus being able to use one another's categorical exclusions,
DOI bureaus also share the same extraordinary circumstances review
protocol and are readily able to confer with their sister bureaus when
questions arise.
Comment: Commenters expressed concern with applying multiple
categorical exclusions to a proposed action, including one commenter
that suggested the use of multiple categorical exclusions for a
proposed action would violate NEPA.
Response: NEPA allows an agency to rely on multiple categorical
exclusions to approve a single proposed action, provided that the
agency verifies that no extraordinary circumstances are present. For
example, if a DOI bureau determines that more than one categorical
exclusion supports a proposed action in its entirety, and if the bureau
further determines that no extraordinary circumstances are present,
then the bureau can authorize the action using alternative or multiple
categorical exclusions, documenting reliance on those categorical
exclusions, as appropriate, in one categorical exclusion determination.
A DOI bureau might also determine that categorical exclusions apply
to every constituent element of a proposed action, even though no one
categorical exclusion may apply to all of those constituent elements.
Under DOI's NEPA procedures, the DOI bureau may, in such cases, use
multiple categorical exclusions, ensuring that at least one categorical
exclusion supports each element of the proposed action, and provided
that the DOI bureau completes extraordinary circumstance review for the
proposed action as a whole. This approach promotes permitting
efficiency by allowing DOI bureaus to exercise discretion to rely on
multiple appropriate categorical exclusions to authorize broader
actions. NEPA does not require DOI bureaus, when using categorical
exclusions, to contrive smaller proposed actions by artificially
breaking apart larger ones. DOI's more efficient approach is consistent
with NEPA because, crucially, the agency must determine that each
element of a larger proposal is not the type of action that normally
results in significant effects to the human environment. And DOI's NEPA
procedures safeguard against the possibility that applying multiple
categorical exclusions to a proposed action in this manner would result
in significant effects. In particular, DOI will evaluate for
extraordinary circumstances and will not apply a CE to a particular
action if it might result in significant effects. See 43 CFR
46.205(c)(1) (requiring DOI bureaus to prepare ``further analysis and
environmental documents'' for an action if any extraordinary
circumstances are present).
Comment: One commenter noted that the Department's categorical
exclusion list should be expanded to include categorical exclusions
from external agencies.
Response: The DOI has not included the categorical exclusions of
external agencies unless a DOI bureau has complied with the
requirements of NEPA Section 109 regarding adoption of another agency
categorical exclusion, i.e., non-Department or bureau categorical
exclusions. These categorical exclusions are in Appendix 2 of the DOI
NEPA Handbook.
Comment: One commenter argued that there is ``improper expansion of
the availability of categorical exclusions and adoption of unlawful
procedures for their establishment and application in violation of the
statute'' under section 4336c of NEPA and stated that it is unclear
what is required for relying on another agency's categorical exclusion
determination, including whether a DOI extraordinary circumstances
review is necessary.
Response: If one agency determines that a categorical exclusion
applies to a proposed action and another agency is taking substantially
the same action, then there is no reason why the second agency cannot
rely on the first agency's determination that a categorical exclusion
applies to the action. Agency A's determination that the action fits
within a particular category of actions for which Agency A does not
anticipate
[[Page 8756]]
significant effects is available for Agency B to rely on, where Agency
B is taking substantially the same action. It is important to note that
reliance on another agency's categorical exclusion determination has
been available to bureaus since the 2020 CEQ NEPA regulation (see 40
CFR 1506.3(d) (2020), which used the term ``adoption'' to describe this
concept) and, based on experience to date, DOI proposes no change to
this procedure other than to incorporate the procedure in its own
regulation.
Comment: One commenter questioned why categorical exclusions
established by section 390 of the Energy Policy Act (EPAct) were not
subject to extraordinary circumstances review since ``the statute does
not absolutely require those activities to be excluded from NEPA
review.''
Response: DOI has not changed its position regarding the Bureau of
Land Management's use of the EPAct section 390 categorical exclusions.
This protocol for use of these categorical exclusions has been in place
almost since the enactment of the EPAct of 2005, was noticed and
explained in the Federal Register at 85 FR 25472 (May 1, 2020) and is
merely repeated in the DOI NEPA procedures.
Comment: Several commenters asserted that the removal of three
extraordinary circumstances at 43 CFR 46.215(c), (i), and (j) (2008),
and revision of other extraordinary circumstances was without reasoned
explanation. At least one commenter provided examples of purported
``unresolved conflicts concerning alternative uses of available
resources'' citing 2024 CEQ NEPA regulations and suggested that the
``highly controversial'' criterion that was eliminated is not
sufficiently addressed by other extraordinary circumstances. Several
other commenters supported the DOI's removal of these extraordinary
circumstances.
Response: As part of the Department's ongoing efforts to modernize
and streamline its NEPA procedures, these revisions reflect a
deliberate and necessary recalibration of our regulatory framework in
light of recent legal, executive, and statutory developments.
Paragraph (i) was removed because 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
Official when making the decision on the proposed action. While some
commenters speculated specifically that this extraordinary circumstance
was grounded in the statutory direction that agencies consider
``comments and views of the appropriate Federal, State, and local
agencies, which are authorized to develop and enforce environmental
standards,'' see 43 U.S.C. 4332(C)(v), and that the removal of the
extraordinary circumstance might prevent a DOI bureau or the public
from considering how an action might have legal infirmities, these
concerns are misplaced. For actions that ``may violate a Federal,
State, local, or Tribal law'' imposed for the protection of the
environment, the Department will continue to comply with all applicable
laws and continue to consider State, local, and Tribal laws in its
decision-making process. These concerns also misunderstand the reason
that agencies review categorically excluded actions for extraordinary
circumstances, which is to evaluate whether a proposed action might
have significant environmental effects. Federal, State, local, and
Tribal laws--even those directed towards the protection of the
environment--often balance a number of competing political or policy
objectives. They simply do not provide a sound basis for evaluating
whether a proposed Federal action may have significant environmental
effects within the meaning of NEPA. For these reasons, DOI has changed
its position and eliminated this extraordinary circumstance.
Paragraph (j) regarding environmental justice impacts was
promulgated in response to E.O. 12898, Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations (Feb. 11, 1994), but that E.O. was rescinded by E.O. 14173.
Therefore, it is appropriate to remove the associated provision.
Furthermore, and to provide further clarity, paragraph (c) has been
removed as it causes confusion and has been frequently misunderstood to
mean that any controversy surrounding the substance of the action
itself constitutes an extraordinary circumstance. The concept is
sufficiently addressed in existing paragraph (d), which the final rule
renumbered as paragraph (c) and which applies to proposed actions where
there are highly uncertain and potentially significant environmental
effects or that involve unique or unknown environmental risks. If a
proposed action's environmental effects are highly uncertain and have
potentially significant effects or involve unique or unknown
environmental risks, that extraordinary circumstance (c), which remains
in DOI's NEPA regulations, would apply.
Finally, the term ``cumulative'' was appropriately removed from 43
CFR 46.215(f) (2008), now paragraph (e) in this section, as
unnecessary. In addition, 43 CFR 46.215(k) and (l) (2008), now
paragraphs (h) and (i) in this section, were appropriately revised to
focus their application on whether there is a potential for significant
effects.
Comment: One commenter noted that the removal of paragraph (i)
addressing any violation of Federal, State, local or Tribal law from
the list of extraordinary circumstances at 43 CFR 46.215 (2008) is not
consistent with E.O. 13132, Federalism (Aug. 4, 1999), where it is
stated that Federal rulemakings should not affect the ``distribution of
power and responsibilities among the various levels of government.''
Response: As explained above, violation of a Federal, State, local
or Tribal law imposed for the protection of the environment is not an
issue of environmental effect but a question of compliance with law;
therefore, it need not be considered when reviewing environmental
effects.
I. Laws, Regulations, and Authorities Other Than NEPA
Comment: Various commenters raised concerns regarding other laws
that could affect environmental reviews or decision-making, including
the Federal Land Policy and Management Act, Organic Act, Surface Mining
Control and Reclamation Act, and Endangered Species Act.
Response: As noted, there are some laws or regulations that might
also apply when bureaus make decisions regarding Federal actions and
these still apply, including any public participation requirements.
Compliance with these other laws does not depend on how an agency
complies with NEPA.
Comment: Several commenters stated that for the rulemaking DOI was
required to engage in consultation with the National Marine Fisheries
Service and the FWS, as appropriate, under Section 7 of the ESA, which
requires each Federal agency to ``insure [sic] that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of'' any designated critical habitat.
Response: DOI has determined that to the extent to which Section 7
of the ESA may apply to this rulemaking action neither the IFR nor this
rulemaking affects listed species or critical habitat, as it is
entirely procedural and relates to how the DOI and its bureaus proceed
to evaluate the environmental effects of
[[Page 8757]]
their actions. That is, neither the DOI NEPA implementing regulations
themselves, nor the action to amend them, result in any environmental
effects; therefore, this procedural rulemaking would not result in
adverse impacts on endangered or threatened species or critical
habitat. Rather, NEPA and its implementing regulations provide
procedures to ensure that DOI accounts for the environmental effects of
its actions. Any alleged harm to species raised by the commenter is
speculative. To the extent any harm occurs, it would result from
separate future agency actions, not DOI's establishment or revision of
NEPA procedures. Moreover, these future actions remain subject to
Section 7 of the ESA, as applicable.
J. Comments on the Regulatory Analyses and Notices
Comment: One commenter noted that the rulemaking Regulatory Impact
Analysis acknowledges that the rule will have a significant impact, and
argues that this significance means that this rulemaking action is
subject to an environmental assessment or environmental impact
statement under NEPA. The commenter states that the Regulatory Impact
Analysis ``only discusses potential cost savings and fails to analyze
the increased costs associated with an uncertain NEPA process that
presents litigation risks'' and notes that ``the lack of permitting
certainty has significant impacts on public health and safety [and]
creates highly uncertain and unique risks'' especially for
infrastructure projects. In addition, ``[s]ince the Handbook could be
changed arbitrarily, nothing in it can be relied upon to mitigate these
effects.''
Response: The determination by the Office of Management and Budget
(OMB) under E.O. 12866, Regulatory Planning and Review, and E.O. 13563,
Improving Regulation and Regulatory Review, that a rulemaking is
significant is separate from a determination of applicability and
necessary level of review under NEPA. As stated in the IFR and this
final rule, the rulemaking was deemed ``significant'' by OMB as that
word is understood in the context of E.O. 12866. The DOI rule is
considered economically significant since DOI expects that revisions
and updates to the DOI NEPA implementing regulations will have a broad
range of cost savings for the Federal Government, interested
stakeholders, and DOI applicants. The commenter's examples of
permitting uncertainty are not directly related to the appropriate
level of NEPA review for the IFR or this final rule. While the DOI NEPA
procedures provide for the consideration of environmental effects in
decision-making processes, including economic, public health, and
safety, DOI does not believe that this rule will 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. Under DOI NEPA procedures, DOI determined that a
categorical exclusion was an appropriate level of NEPA review for this
rulemaking.
Comment: Several commenters expressed concern that the rule may
disproportionately affect small municipalities, Tribal governments, and
local water authorities.
Response: As the Department is not required to publish a notice of
proposed rulemaking for this IFR, the Regulatory Flexibility Act (RFA)
does not apply. The RFA generally requires agencies to assess the
impact of final rules on small entities. Even if the RFA were to apply,
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.
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 the OIRA in the OMB will review all
significant rules. E.O. 13563 reaffirms the principles of E.O. 12866,
calling for improvements in the Federal Government's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory
objectives. OMB determined that this final rule is a significant
regulatory action under section 3(f) of E.O. 12866, and has reviewed
this final rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, as amended, (RFA), 5 U.S.C. 601 et
seq., and E.O. 13272, Proper Consideration of Small Entities in Agency
Rulemaking (August 13, 2002), 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 was not required to publish a notice of proposed rulemaking
for this 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 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 additional NEPA
review of the effects of this final rule. DOI finds this rulemaking is
excluded pursuant to its categorical exclusion at 43 CFR 46.210(i). The
categorical exclusion 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 final rule does not
implicate any of the extraordinary circumstances listed in 43 CFR
46.215. The promulgation of NEPA implementing procedures is not
generally itself subject to NEPA. Heartwood v. U.S. Forest Serv., 230
F.3d 947, 954-55 (7th Cir. 2000).
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 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
[[Page 8758]]
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 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 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 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 U.S.C. 1532. This 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 final rule also
does not impose any enforceable duty, contain any unfunded mandate, or
otherwise have any effect on small governments.
I. Paperwork Reduction Act
This 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.
Doug Burgum,
Secretary of the Interior.
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
Sec. 46.105 Using a bureau-directed contractor to prepare
environmental documents.
Sec. 46.107 Procedures for applicant-prepared environmental impact
statements and environmental assessments.
Sec. 46.150 Emergency responses.
Subpart C--Initiating the NEPA Process
Sec. 46.205 Actions categorically excluded from further NEPA
review.
Sec. 46.210 Listing of Departmental categorical exclusions.
Sec. 46.215 Categorical exclusions: Extraordinary circumstances
Sec. 46.220 How to Designate Lead Agencies
Sec. 46.225 How to Select Cooperating Agencies
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, consistent with 42 U.S.C. 4332(2)(E) and
Secretary's Order 3441, Implementing the Requirements of Executive
Order 14303, Restoring Gold Standard Science 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 relied on, as needed, to verify the
analyses.
[[Page 8759]]
(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 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.
(h) 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 actions to
address imminent threats to life, property, or important natural,
cultural, or historic resources before preparing an environmental
document or documenting the 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 address imminent threats 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 consider taking steps to mitigate
reasonably foreseeable adverse environmental impacts to the extent
practicable and consistent with agency authority.
(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 that makes it necessary to take action before
preparing 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).
[[Page 8760]]
(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), (d), or (e) 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 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) Bureaus may apply multiple categorical exclusions in
combination to cover a proposed action composed of multiple action
elements. In some circumstances, a bureau might consider a proposed
action that is a composite of multiple smaller actions or action
elements. In such instances, a combination of categorical exclusions--
each covering an action that is an element of the larger proposed
action--can cover all the actions or action elements composing the
larger composite action and support the bureau's determination that it
is not reasonably foreseeable that the effects of the composite
proposed action, with all its elements, would be significant. When a
bureau completes its review of a proposed action composed of several
action elements in reliance on multiple categorical exclusions, the
bureau must concisely document this reliance, including by verifying
that each smaller action or action element is supported by a
categorical exclusion and completing all applicable review for the
presence of extraordinary circumstances that, if present, would
preclude application of the categorical exclusions to the larger or
composite 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 paragraph (h)(3) of this section; 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) 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. Reliance on paragraphs (a) through (j) of this section to
support approval of a proposed action does not need to be documented;
reliance on paragraph (k) or (l) of this section to support approval of
a proposed action does need to 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
[[Page 8761]]
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.
(k) (Not for use within the jurisdiction of the Ninth Circuit Court
of Appeals.) Hazardous fuels reduction activities using prescribed fire
not to exceed 4,500 acres, and mechanical methods for crushing, piling,
thinning, pruning, cutting, chipping, mulching, and mowing, not to
exceed 1,000 acres. Such activities:
(1) Shall be limited to areas--
(i) In wildland-urban interface; and
(ii) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III,
outside the wildland-urban interface;
(2) Shall be identified through a collaborative framework as
described in ``A Collaborative Approach for Reducing Wildland Fire
Risks to Communities and the Environment 10-Year Comprehensive Strategy
Implementation Plan;''
(3) Shall be conducted consistent with bureau and Departmental
procedures and applicable land and resource management plans;
(4) Shall not be conducted in wilderness areas or impair the
suitability of wilderness study areas for preservation as wilderness;
and
(5) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative material if the
primary purpose of the activity is hazardous fuels reduction.
(l) Post-fire rehabilitation activities not to exceed 4,200 acres
(such as tree planting, fence replacement, habitat restoration,
heritage site restoration, repair of roads and trails, and repair of
damage to minor facilities such as campgrounds) to repair or improve
lands unlikely to recover to a management approved condition from
wildland fire damage, or to repair or replace minor facilities damaged
by fire. Such activities must comply with the following:
(1) Shall be conducted consistent with bureau and Departmental
procedures and applicable land and resource management plans;
(2) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(3) Shall be completed within three years following a wildland
fire.
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 area or from other
actions that promote the introduction, growth, or expansion of the
range of such species (Federal Noxious Weed Control Act).
Sec. 46.220 How to designate lead agencies.
(a) In most cases, the Responsible Official should designate one
Federal agency as the lead with the remaining Federal, State, Tribal,
and local agencies assuming the role of cooperating agency. In this
manner, the other Federal, State, Tribal, and local agencies can work
to ensure that the environmental impact statement will meet their needs
for adoption and application to any related decision.
(b) In some cases, a non-Federal agency (including a State, Tribal,
or local government) must comply with State, Tribal, or local
requirements that are comparable to the NEPA requirements. In these
cases, the Responsible Official may designate the non-Federal agency as
a joint lead agency.
(c) In some cases, the Responsible Official may establish a joint
lead relationship among several Federal agencies. If there are joint
leads for an environmental impact statement, then one Federal agency
must be identified as the agency responsible for filing the
environmental impact statement with the Environmental Protection
Agency.
(d) Bureaus may allow joint lead agencies to cooperate in
developing environmental assessments.
Sec. 46.225 How to select cooperating agencies.
(a) An eligible agency is:
(1) Any Federal, State, Tribal, or local agency that is qualified
to participate in the development of an environmental assessment or
environmental impact statement by virtue of its jurisdiction by law,
consistent with 42 U.S.C. 4336a(a)(3);
(2) Any Federal, State, Tribal, or local agency that is qualified
to participate in the development of an environmental assessment or
environmental impact statement by virtue of its special expertise.\1\
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\1\ See Council on Environmental Quality, Federal and Federal-
State Agencies with Jurisdiction by Law or Special Expertise on
Environmental Quality Issues (June 15, 2018), https://ceq.doe.gov/docs/nepa-practice/Agency-Jurisdiction-and-Expertise-formerly-Appendix-II-2018-06-15.pdf.
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(b) The Responsible Official for a lead bureau may invite eligible
agencies to participate as cooperating agencies
[[Page 8762]]
when the bureau is developing an environmental assessment and must
invite eligible agencies to participate as cooperating agencies when
the bureau is developing an environmental impact statement, subject to
the exception described in paragraph (c) of this section.
(c) The Responsible Official for the lead bureau must consider any
request by an eligible agency to participate in a particular
environmental impact statement or environmental assessment as a
cooperating agency. Such request shall not be arbitrarily denied. If
the Responsible Official for the lead bureau denies a request, or
determines it is inappropriate to extend an invitation, he or she must
state the reasons in the environmental impact statement or
environmental assessment, as applicable. Denial of a request for
cooperating agency status is not subject to any internal administrative
appeals process, nor is it a final agency action subject to review
under the Administrative Procedure Act, 5 U.S.C. 701 et seq.
(d) Bureaus should work with cooperating agencies to develop and
adopt appropriate documentation that includes their respective roles,
assignment of issues, schedules, and staff commitments so that the NEPA
process remains on track and within the time schedule. Such
documentation must be used in the case of non-Federal agencies and must
include a commitment to maintain the confidentiality of documents and
deliberations during the period prior to the public release by the
bureau of any environmental document, including drafts, to the extent
permitted by the Freedom of Information Act and other applicable law.
However, no memorandum can require a cooperating agency to waive the
right to judicial review.
(e) Bureaus within the Department will be cooperating agencies with
other bureaus when requested.
Subpart D--[Reserved]
Subpart E--[Reserved]
[FR Doc. 2026-03708 Filed 2-23-26; 8:45 am]
BILLING CODE 4334-63-P