Procedures for the Issuance of Guidance Documents, 39495-39503 [2020-13458]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 85, Number 127 (Wednesday, July 1, 2020)]
[Proposed Rules]
[Pages 39495-39503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13458]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 127 / Wednesday, July 1, 2020 / 
Proposed Rules

[[Page 39495]]



DEPARTMENT OF ENERGY

10 CFR Part 1061

RIN 1990-AA50


Procedures for the Issuance of Guidance Documents

AGENCY: Office of the General Counsel, Department of Energy.

ACTION: Notice of proposed rulemaking (NOPR) and request for comment.

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SUMMARY: The U.S. Department of Energy (DOE) proposes to establish 
procedures for the issuance of DOE guidance documents in accordance 
with Executive Order 13891. The proposed rule would establish internal 
agency requirements for the contents of guidance documents, and 
procedures for providing notice of, and soliciting public comment on, 
certain guidance documents. The proposed rule would also establish 
procedures for the public to petition DOE to modify or withdraw 
guidance documents. This NOPR also resolves a petition for rulemaking 
submitted by the New Civil Liberties Alliance (NCLA) and responds to 
comments submitted on that petition.

DATES: DOE will accept comments regarding this NOPR on or before July 
31, 2020. See the section entitled ``Public Participation'' for 
details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at https://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by RIN 1990-AA50, by any of the 
following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected]hq.doe.gov. Include the RIN 1990-AA50 in the 
subject line of the message.
    3. Postal Mail: U.S. Department of Energy, Office of the General 
Counsel (GC-33), 6A-179, 1000 Independence Avenue SW, Washington, DC 
20585. If possible, please submit all items on a compact disc (``CD''), 
in which case it is not necessary to include printed copies.
    4. Hand Delivery/Courier: U.S. Department of Energy, 6A-179, 1000 
Independence Avenue SW, Washington, DC 20585. If possible, please 
submit all items on a CD, in which case it is not necessary to include 
printed copies.
    No telefacsimilies (faxes) will be accepted. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the section on Public Participation for 
details.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at https://www.regulations.gov. All documents in the docket are 
listed in the https://www.regulations.gov index. However, some documents 
listed in the index, such as those containing information that is 
exempt from public disclosure, may not be publicly available.
    The docket web page can be found at the https://www.regulations.gov/ 
web page associated with RIN 1990-AA50. The docket web page contains 
simple instructions on how to access all documents, including public 
comments, in the docket. See the section on Public Participation for 
information on how to submit comments through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Matthew Ring, U.S. Department of 
Energy, Office of the General Counsel, Forrestal Building, GC-33, 1000 
Independence Avenue SW, Washington, DC 20585, (202) 586-2555, Email: 
[email protected].

SUPPLEMENTARY INFORMATION: DOE issues this proposed rule to incorporate 
into the Code of Federal Regulations a new 10 CFR part 1061, which 
would implement the requirements of Executive Order 13891, ``Promoting 
the Rule of Law Through Improved Agency Guidance Documents.'' 84 FR 
55235 (October 9, 2019). Executive Order 13891 requires agencies to 
provide more transparency in the issuance and use of guidance 
documents, including by promulgating procedures to allow the public to 
comment on significant guidance documents before their issuance. As 
noted in the Executive Order, the Administrative Procedure Act (APA) 
generally requires agencies to provide public notice of proposed 
regulations, allow interested parties an opportunity to comment, 
consider and respond to significant comments, and publish final 
regulations in the Federal Register.\1\ (See 5 U.S.C. 553) Such 
regulations, also known as legislative rules, have the force and effect 
of law and are legally binding upon the public.
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    \1\ The APA defines a ``rule'' as ``the whole or a part of an 
agency statement of general or particular applicability and future 
effect designed to implement, interpret, or prescribe law or policy 
or describing the organization, procedure, or practice requirements 
of an agency and includes the approval or prescription for the 
future of rates, wages, corporate or financial structures or 
reorganizations thereof, prices, facilities, appliances, services or 
allowances therefor or of valuations, costs, or accounting, or 
practices bearing on any of the foregoing.'' (5 U.S.C. 551(4))
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    In addition to legislative rules, agencies may clarify existing 
obligations of regulated entities through non-binding guidance 
documents, which the APA exempts from notice-and-comment requirements. 
(5 U.S.C. 553(b)(A)) \2\ Executive Order 13891 defines ``guidance 
document'' as ``an agency statement of general applicability, intended 
to have future effect on the behavior of regulated parties, that sets 
forth a policy on a statutory, regulatory, or technical issue, or an 
interpretation of a statute or regulation'', with a few noted 
exceptions listed in the Executive Order.\3\ Such guidance documents do 
not have the force and effect of law, and are intended only to provide 
clarity to the public of existing statutory and regulatory obligations. 
However, as noted in the Executive Order, some guidance documents may 
impose obligations beyond those required by statute or regulation, or 
carry a threat of enforcement if the guidance is not followed by 
regulated parties. Additionally, the public may not have sufficient 
notice of guidance documents,

[[Page 39496]]

which are not always published in the Federal Register or distributed 
to all regulated parties. See 84 FR 55235.
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    \2\ The APA refers to these types of documents as 
``interpretative rules or general statements of policy''. 5 U.S.C. 
553(b)(A).
    \3\ The types of documents excepted form the definition of 
``guidance document'' in Executive Order 13891 are: (i) Legislative 
rules promulgated under the APA, or similar statutory provisions; 
(ii) rules exempt from the rulemaking requirements of the APA; (iii) 
rules of agency organization, procedure, or practice; (iv) decisions 
of agency adjudications under the APA, or similar statutory 
provisions; (v) internal guidance directed to the issuing agency or 
other agencies that is not intended to have substantial future 
effect on the behavior of regulated parties; or (vi) internal 
executive branch legal advice or legal opinions addressed to 
executive branch officials. 84 FR 55235-55236.
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    Accordingly, Executive Order 13891 requires agencies to provide 
more transparency for their guidance documents by creating a searchable 
online database for current guidance documents,\4\ and by establishing 
procedures to allow the public to comment on significant guidance 
documents and to petition the agency to withdraw or modify guidance 
documents.\5\ Moreover, the Executive Order requires agencies to 
clearly state in their guidance documents that such guidance does not 
have the force and effect of law and is not legally binding, except as 
authorized by law or as incorporated into a contract. 84 FR 55236-
55237.
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    \4\ DOE's online database may be found at energy.gov/guidance.
    \5\ Executive Order 13891 defines ``significant guidance 
document'' as ``a guidance document that may reasonably be 
anticipated to: (i) Lead to an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (ii) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another 
agency; (iii) materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (iv) raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles of Executive Order 12866.'' 84 FR 55236.
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    This proposed rule would implement the requirements of Executive 
Order 13891. This proposed rule would apply to all DOE guidance 
documents, which DOE proposes to define in the same manner as that term 
is defined in Executive Order 13891, including the exceptions to that 
definition listed in section 2 of the Executive Order. DOE proposes to 
also list specific types of documents and communications that fall 
within the broader exceptions listed in the Executive Order (e.g., 
speeches and presentations given by DOE officials, legal positions 
taken in litigation or enforcement actions, etc.). (See also OMB, M-20-
02, Guidance Implementing Executive Order 13891, Titled ``Promoting the 
Rule of Law Through Improved Agency Guidance Documents'' (October 31, 
2019) available at https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.) The proposed rule would also adopt the 
same definition of ``significant guidance document'' as that term is 
defined in section 2 of Executive Order 13891.
    In accordance with Executive Order 13891, DOE proposes to require 
that all DOE guidance documents clearly state that they do not have the 
force and effect of law and are not legally binding on the public, and 
that they are only intended to provide clarity to the public regarding 
existing statutory and regulatory requirements. Moreover, DOE proposes 
to require DOE guidance documents to be written clearly and to refrain 
from using mandatory language, such as the terms ``shall'' or ``must.'' 
If a guidance document purports to describe, approve, or recommend 
specific conduct that is beyond what is required by existing statute or 
legislative rule, the proposed rule would require that the document 
include a clear and prominent statement that the guidance document will 
not be used as an independent basis for enforcement and that conformity 
with the guidance document is strictly voluntary and nonconformity will 
not affect the rights and obligations of regulated parties.
    DOE also proposes to require that all DOE guidance documents be 
reviewed and cleared by the Office of the General Counsel. 
Additionally, the proposed rule would require that significant guidance 
documents be approved by the Secretary or a component agency head 
appointed by the President. This will ensure that the requirements and 
intent of Executive Order 13891 are met, and that guidance documents 
are issued in accordance with relevant laws and regulations.
    The proposed rule would also codify procedures for providing notice 
in the Federal Register concerning significant guidance documents, 
soliciting public comments on such guidance documents, and responding 
to such comments. DOE notes that the agency generally provides notice 
and solicits comments on significant guidance documents. Therefore, the 
proposed rule would codify agency procedures that are already in use 
for significant guidance documents. The proposed rule also provides 
procedures for the public to petition the agency to modify or withdraw 
guidance documents. DOE notes that the procedures in the proposed rule 
for petitions to modify or withdraw guidance documents are similar to 
the procedures that DOE uses for petitions for rulemaking.
    With this proposed rule, DOE would effectuate the requirements of 
Executive Order 13891 and ensure that the agency's process for the 
issuance of guidance documents is transparent and accessible to the 
public. The proposed rule also assures regulated parties that such 
guidance is not legally binding and does not affect the rights and 
obligations of regulated parties.

NCLA Petition for Rulemaking

    On August 2, 2019, prior to the issuance of Executive Order 13891, 
DOE received a petition from the New Civil Liberties Alliance (NCLA) 
asking DOE to initiate a rulemaking to prohibit any DOE component from 
issuing, relying on, or defending improper agency guidance.\6\ In its 
petition, NCLA argued that federal agencies often issue informal 
interpretations, advice, statements of policy, and other forms of 
guidance that make law by declaring views about what the public should 
do even though the U.S. Constitution and the APA prohibit doing so. 
NCLA asserted that such practices evade legal requirements and are used 
for the purpose of coercing persons or entities outside the Federal 
Government into taking or not taking action beyond what is required by 
an applicable statute or regulation. NCLA further stated that despite 
being prohibited by law, improper guidance is typically outside of 
judicial review because of procedural limits. (Petition at 6-8) More 
specifically, NCLA stated that binding legislative rules will be 
invalidated for failure to conform to the notice-and-comment process 
under the APA only after they are determined to be legislative in the 
first place, which, NCLA argues, is neither a simple nor quick task. 
NCLA also stated that an initial or interim rule, even one that binds 
regulated parties, may not be reviewable by courts because the rule may 
not constitute final agency action under the APA, which is required for 
judicial review. As a result, NCLA stated, courts rarely consider the 
genuinely coercive effects of guidance documents as sufficiently 
binding to permit review. (Petition at 8-9)
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    \6\ NCLA's petition, the notice soliciting comment, and comments 
received on the petition may be found on https://www.regulaitons.gov 
under docket number DOE-HQ-2020-0002, document number 2019-20540.
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    NCLA concluded that to solve these underlying problems, DOE should 
issue a binding and final rule prohibiting any DOE component from 
issuing, relying on, or defending improper agency guidance, and stating 
that only a new rule binding DOE can assure regulated parties that DOE 
will refrain from future improper use of guidance. (Petition at 20) 
NCLA discussed a number of authorities in favor of its petition, 
including the U.S. Constitution, the APA, an OMB Bulletin (Final 
Bulletin for Agency Good Guidance Practices, issued in 2007 and 
available at https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf), and an OMB Memorandum (OMB Memorandum M-

[[Page 39497]]

19-14, issued in 2019 and available at https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf). (Petition at 4-17) NCLA also 
provided proposed regulatory text that would require internal DOE 
procedures for the issuance and use of legislative rules and guidance 
documents, procedures for compliance with the Congressional Review Act 
(CRA), and procedures for the public to petition DOE to determine 
whether a rule is legislative or non-binding guidance and for such 
determinations to be reviewable by the courts. (Petition at 23-28) DOE 
published the notice of the petition in the Federal Register and sought 
comment on whether to grant the petition and proceed with a rulemaking. 
See 84 FR 50791. DOE received three relevant comments on the petition, 
which are summarized below along with DOE's responses.\7\
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    \7\ DOE received nine additional comments on the petition. 
However, DOE believes that these 9 comments were submitted to the 
incorrect docket, as these comments concerned the regulation of 
hemp. Accordingly, DOE will not publish or respond to these comments 
as they are irrelevant to the NCLA petition and this rulemaking.
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    Due to the intervening issuance of Executive Orders 13891 after the 
submission of NCLA's petition, DOE grants in part, and denies in part, 
NCLA's requests in its petition. This proposed rule addresses NCLA's 
concerns by proposing regulations that would ensure that the agency's 
process for the issuance and modification of guidance documents is 
transparent and accessible to the public. The proposed rule also 
assures regulated parties that such guidance documents are not legally 
binding and do not affect the rights and obligations of regulated 
parties. The proposed rule would implement, and be consistent with, the 
requirements of Executive Orders 13891, and would ensure that DOE 
guidance is not used to coerce regulated parties into compliance with 
non-binding guidance, or used as the sole basis for an enforcement 
action against such parties. The proposed rule also provides procedures 
for regulated parties to petition DOE to rescind or modify DOE guidance 
documents. After receiving comments from the public on this proposed 
rule, and making any necessary amendments to the proposed rule to 
reflect meaningful comments, DOE intends to publish a final rule 
implementing the requirements of Executive Order 13891 and establishing 
procedures for the issuance and use of DOE guidance documents. However, 
DOE declines to include provisions in this proposed rule that would 
establish procedures for compliance with the CRA and for the issuance 
and use of legislative rules. Such procedures were not addressed by 
Executive Orders 13891, and the provisions of the CRA and APA, as well 
as current DOE internal procedures, adequately govern CRA compliance 
and the issuance and use of legislative rules. Moreover, DOE notes that 
the greater concerns highlighted in NCLA's petition and proposed 
regulatory text pertain to DOE's issuance and use of guidance 
documents, which, as described above, are directly addressed by this 
proposed rule. Additionally, DOE declines to include procedures for 
determining legislative versus non-legislative rules, the finality of 
such determinations, or judicial review of such determinations in the 
proposed rule. The courts have the authority, and are best positioned, 
to determine what agency actions are reviewable by a court under the 
APA or other relevant laws and regulations.

Comments of NCLA

    NCLA supported its petition and reiterated its request for DOE to 
propose and finalize regulations regarding DOE's issuance and use of 
guidance. NCLA commented that the regulatory text proposed in its 
petition is compatible with Executive Order 13891 and its counterpart, 
Executive Order 13892 (``Promoting the Rule of Law Through Transparency 
and Fairness in Civil Administrative Enforcement and Adjudication,'' 84 
FR 55239 (October 9, 2019)). (NCLA at 2-3) NCLA also referred to the 
Department of Transportation's (DOT) final rule regarding DOT 
procedures for issuing regulations and guidance, and DOT enforcement 
actions. (See 84 FR 71714) NCLA commented that the DOT rule addressed 
several of NCLA's concerns regarding agency issuance and use of 
guidance documents and that NCLA's proposed regulatory text for DOE was 
similar to the DOT rule. NCLA commented that the DOT rule addressed 
other considerations that NCLA did not raise in its petition to DOE, 
but that NCLA nonetheless believes DOE should consider. (NCLA at 4-7) 
NCLA commented that the judicial review provisions in NCLA's proposed 
regulatory text would allow an interested party to seek redress from 
the courts when an agency's improper guidance review process falls 
short. NCLA stated that its proposed regulatory text also resolves the 
finality question by identifying agency action or inaction that would 
constitute final agency action reviewable under the APA. (NCLA at 7-8)

DOE Response

    Consistent with NCLA's comments, this proposed rule would establish 
procedures to ensure that the agency's process for the issuance and 
modification of guidance documents is transparent and accessible to the 
public. The proposed rule also assures regulated parties that such 
guidance is not legally binding, and does not affect the rights and 
obligations of regulated parties. The proposed rule would implement, 
and be consistent with, the requirements of Executive Order 13891. DOE 
is not addressing the specific requirements of Executive Order 13892 in 
this proposed rule. This proposed rule is consistent with the goals of 
Executive Order 13892 in requiring that guidance documents contain 
clear language that they are not legally binding and will not be used 
by DOE as an independent basis for an enforcement action or other 
administrative penalty. DOE will implement the requirements of 
Executive Order 13892 in separate administrative actions, as 
appropriate.
    Further, the proposed rule is very similar to the DOT final rule. 
However, as noted previously, DOE declines to include specific 
provisions regarding judicial review or finality of DOE actions in the 
proposed rule. The courts have the authority, and are best positioned, 
to determine what agency actions are reviewable by a court under the 
APA or other relevant laws and regulations. In addition, DOE is not 
persuaded that provisions concerning finality or judicial review would 
be as useful to regulated parties as the provisions proposed in the 
proposed rule. These provisions should eliminate, or lessen, the 
perceived need for judicial review in a significant range of 
circumstances by further confirming that guidance documents do not bind 
regulated parties.

Comments of the Antonin Scalia Law School Administrative Law Clinic

    The Antonin Scalia School of Law Administrative Law Clinic (the 
Clinic) expressed support for NCLA's petition for DOE to undertake a 
rulemaking relating to DOE's practice of using guidance documents. The 
Clinic noted the importance of guidance documents, but stated that 
agencies too often use guidance as a means of setting agency policy 
without providing the public notice and opportunity to comment, thereby 
limiting meaningful and intelligent public participation. The Clinic 
noted the lack of transparency surrounding agencies' issuance and use 
of many guidance documents. (Clinic at

[[Page 39498]]

2-6) The Clinic stated that DOE should propose and finalize regulations 
through the notice-and-comment process to ensure that formalized 
procedures are in place for the development, approval, and issuance of 
guidance documents. (Clinic at 10-12)

DOE Response

    Consistent with the Clinic's comments, this proposed rule would 
establish procedures to ensure that the agency's process for the 
issuance and modification of guidance documents is transparent and 
accessible to the public. Moreover, the proposed rule assures regulated 
parties that such guidance is not legally binding, and that regulated 
parties' statutory and regulatory rights and obligations are not 
affected by such guidance.

Comments of the Administrative Conference of the United States

    The Administrative Conference of the United States (ACUS) did not 
take a position with respect to the NCLA petition; rather, ACUS called 
DOE's attention to two past ACUS recommendations regarding agency 
guidance. ACUS referred to ACUS Recommendation 2017-5, ``Agency 
Guidance Through Policy Statements,'' which provides best practices to 
agencies on the formulation and use of policy statements, and lists 
steps that agencies can take to remain flexible in their use of policy 
statements and to encourage public participation in the adoption or 
modification of policy statements. ACUS also referred to ACUS 
Recommendation 2019-1, ``Agency Guidance Through Interpretive Rules,'' 
which identifies ways in which agencies can offer the public the 
opportunity to propose alternatives to approaches provided in an 
agency's interpretive rule that advises the public on how to comply 
with the underlying statute or regulation. Recommendation 2019-1 also 
identifies ways agencies can encourage public participation in the 
adoption or modification of interpretive rules. (ACUS at 1) ACUS also 
cited to and submitted reports by ACUS in support of both 
Recommendations. ACUS took no position on the merits of NCLA's 
petition. (ACUS at 1-2)

DOE Response

    Consistent with the ACUS recommendations, this proposed rule would 
formally establish procedures to ensure that the agency's process for 
the issuance and modification of guidance documents is transparent and 
accessible to the public. Moreover, the proposed rule assures regulated 
parties that such guidance is not legally binding, and that regulated 
parties' statutory and regulatory rights and obligations are not 
affected by such guidance. Additionally, this proposed rule provides 
procedures for DOE to allow for public participation in the issuance of 
significant guidance documents, and for petitioning DOE to rescind or 
modify any DOE guidance document.

Comments of the National Association of Manufacturers

    The National Association of Manufacturers (NAM) expressed support 
for NCLA's petition and urged DOE to develop a rule to create 
procedural safeguards and to provide regulated entities with clarity as 
to when an agency proclamation is final and binding and when it is not. 
(NAM at 2). In its comments, NAM noted the usefulness of guidance in 
providing clarity for regulated entities; however, NAM stated that the 
improper use of guidance can impose burdens on society when regulated 
entities struggle to differentiate between binding rules and non-
binding guidance. (NAM at 1) NAM described the difficulties in 
differentiating between binding rules and non-binding guidance, and the 
costs imposed on manufacturers as a result of this confusion. (NAM at 
1-2). NAM also stated that agency guidance documents are seldom subject 
to public scrutiny and, therefore, that such guidance documents often 
lack notice or explanation, are difficult to locate, and fail to 
provide regulated entities with recourse in court. (NAM at 2) NAM urged 
DOE to establish, by rule, guidelines for the development of policies 
that may not technically bind the public but that may be coercive in 
practical effect, which should include a reasonable form of notice, 
opportunity for public participation, an easily accessible online 
repository of guidance documents, and procedures for regulated 
industries to challenge guidance that may exceed statutory or 
regulatory authority. (NAM at 2-3).

DOE Response

    Consistent with NAM's comments, this proposed rule would establish 
procedures to ensure that the agency's process for the issuance and 
modification of guidance documents is transparent and accessible to the 
public. The agency has already established an online repository where 
its guidance documents may be easily accessed (energy.gov/guidance). 
Moreover, the proposed rule assures regulated parties that such 
guidance is not legally binding, and that regulated parties' statutory 
and regulatory rights and obligations are not affected by such 
guidance. Additionally, this proposed rule would establish a procedure 
for regulated entities to petition DOE to modify or withdraw DOE 
guidance documents.

Public Participation

    DOE will accept comments, data, and information regarding this 
proposed rule on or before the date provided in the DATES section at 
the beginning of this proposed rule. Interested parties may submit 
comments, data, and other information using any of the methods 
described in the ADDRESSES section at the beginning of this document.
    Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
General Counsel staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
DOE will use this information to contact you. If DOE cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, DOE may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment itself or in any documents attached to your 
comment. Any information that you do not want to be publicly viewable 
should not be included in your comment, nor in any document attached to 
your comment. Otherwise, persons viewing comments will see only first 
and last names, organization names, correspondence containing comments, 
and any documents submitted with the comments.
    Do not submit to https://www.regulations.gov information the 
disclosure of which is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (CBI)). Comments submitted through 
https://www.regulations.gov cannot be claimed as CBI. Comments received 
through the website will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section below.
    DOE processes submissions made through https://www.regulations.gov 
before posting. Normally, comments will be posted within a few days of 
being submitted. However, if large

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volumes of comments are being processed simultaneously, your comment 
may not be viewable for up to several weeks. Please keep the comment 
tracking number that https://www.regulations.gov provides after you have 
successfully uploaded your comment.
    Submitting comments via email, hand delivery/courier, or postal 
mail. Comments and documents submitted via email, hand delivery/
courier, or postal mail also will be posted to https://www.regulations.gov. If you do not want your personal contact 
information to be publicly viewable, do not include it in your comment 
or any accompanying documents. Instead, provide your contact 
information in a cover letter. Include your first and last names, email 
address, telephone number, and optional mailing address. The cover 
letter will not be publicly viewable as long as it does not include any 
comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. If you submit via postal mail 
or hand delivery/courier, please provide all items on a CD, if 
feasible, in which case it is not necessary to submit printed copies. 
No telefacsimiles (faxes) will be accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are written in English, and that are free of any defects or viruses. 
Documents should not contain special characters or any form of 
encryption and, if possible, they should carry the electronic signature 
of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email, postal mail, or hand delivery/courier two well-marked copies: 
One copy of the document marked ``confidential'' including all the 
information believed to be confidential, and one copy of the document 
marked ``non-confidential'' that deletes the information believed to be 
confidential. Submit these documents via email or on a CD, if feasible. 
DOE will make its own determination about the confidential status of 
the information and will treat it according to its determination.
    It is DOE's policy that all comments, including any personal 
information provided in the comments, may be included in the public 
docket, without change and as received, except for information deemed 
to be exempt from public disclosure.

Regulatory Analysis

A. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''

    This proposed rule is a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735 
(October 4, 1993). As a result, this action was reviewed by the Office 
of Information and Regulatory Affairs in the Office of Management and 
Budget (OMB). DOE does not anticipate that this rulemaking will have an 
economic impact on regulated entities. This is a proposed rule of 
agency procedure and practice. The proposed rule describes DOE's 
internal procedures for the promulgation and processing of guidance 
documents, to ensure that guidance documents only clarify existing 
statutory and regulatory obligations and do not impose any new 
obligations. DOE proposes to adopt these internal procedures as part of 
its implementation of Executive Order 13891, and does not anticipate 
incurring significant additional resource costs in doing so. Moreover, 
it is anticipated that the public will benefit from the resulting 
increase in efficiency and transparency in the issuance of guidance 
documents, and more opportunities to comment on guidance documents.

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' See 82 FR 
9339 (January 30, 2017). E.O. 13771 states that the policy of the 
executive branch is to be prudent and financially responsible in the 
expenditure of funds, from both public and private sources. E.O. 13771 
states that it is essential to manage the costs associated with the 
governmental imposition of private expenditures required to comply with 
Federal regulations. More specifically, section 2 of E.O. 13771 
requires, amongst other things, that the costs of any new regulation be 
offset by the elimination of existing costs associated with at least 2 
prior regulations.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by Executive Order 13272, Proper Consideration of Small 
Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE 
published procedures and policies on February 19, 2003, to ensure that 
the potential impacts of its rules on small entities are properly 
considered during the rulemaking process, 68 FR 7990. The Department 
has made its procedures and policies available on the Office of General 
Counsel's website: https://energy.gov/gc/office-general-counsel.
    The proposed rule would codify internal agency procedures regarding 
DOE's issuance of guidance documents. Additionally, as noted 
previously, guidance documents do not have the force and effect of law 
and are not legally binding on regulated entities. This rule would 
establish procedures to ensure that DOE guidance only clarifies 
existing statutory and regulatory obligations, rather than imposing any 
new obligations. DOE therefore does not anticipate any significant 
economic impacts from this proposed rule. For these reasons, DOE 
certifies that this rulemaking will not have a significant economic 
impact on a substantial number of small entities. Accordingly, DOE did 
not prepare an IRFA for this rulemaking. DOE's certification and 
supporting statement of factual basis will be provided to the Chief 
Counsel for Advocacy of the Small Business Administration for review 
under 5 U.S.C. 605(b).

D. Review Under the Paperwork Reduction Act of 1995

    The proposed rule would impose no new information or record keeping 
requirements. Accordingly, Office of Management and Budget (OMB) 
clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 
3501 et seq.).

E. Review Under the National Environmental Policy Act of 1969

    DOE has determined that the proposed rule would be covered under 
the Categorical Exclusion found in DOE's National Environmental Policy 
Act regulations at paragraph A.6 of appendix A to subpart D, 10 CFR 
part

[[Page 39500]]

1021. That Categorical Exclusion applies to actions that are strictly 
procedural, such as rulemaking establishing the administration of 
grants. The proposed rule would codify internal agency procedures for 
issuing guidance documents. The action would not have direct 
environmental impacts. Accordingly, DOE does not intend to prepare an 
environmental assessment or an environmental impact statement.

F. Review Under Executive Order 13132, ``Federalism''

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. (See 65 FR 13735) DOE examined this 
proposed rule and determined that it would not preempt State law and 
would not have a substantial direct effect 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. No further action is required by Executive Order 13132.

G. Executive Order 13175 ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency 
regulations that have Tribal implications, that is, regulations that 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. The proposed rule has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13175. Because this proposed rule would not significantly or 
uniquely affect the communities of the Indian tribal governments or 
impose substantial direct compliance costs on them, the funding and 
consultation requirements of Executive Order 13175 do not apply.

H. Review Under Executive Order 12988, ``Civil Justice Reform''

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct, rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
its preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct, while promoting simplification and burden 
reduction; (4) specifies its retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed rule would meet the relevant standards 
of Executive Order 12988.

I. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and tribal governments on a 
proposed ``significant intergovernmental mandate'' and requires an 
agency plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA (62 FR 12820) 
(also available at https://energy.gov/gc/office-general-counsel). This 
proposed rule contains neither an intergovernmental mandate nor a 
mandate that may result in the expenditure of $100 million or more in 
any year by State, local, and tribal governments, in the aggregate, or 
by the private sector, so these requirements under the Unfunded 
Mandates Reform Act do not apply.

J. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This proposed rule would not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

K. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (March 18, 1988), that this proposed rule would 
not result in any takings which might require compensation under the 
Fifth Amendment to the United States Constitution.

L. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR

[[Page 39501]]

62446 (October 7, 2002). DOE has reviewed the proposed rule under the 
OMB and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

M. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
The proposed rule would codify internal agency procedures and does not 
meet any of the three criteria listed above. Accordingly, the 
requirements of Executive Order 13211 do not apply.

Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed 
rule.

List of Subjects in 10 CFR Part 1061

    Administrative practice and procedure.

Signing Authority

    This document of the Department of Energy was signed on June 17, 
2020, by William S. Cooper, III, General Counsel, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on June 18, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE is proposing to add 
part 1061 to Chapter X of Title 10 of the Code of Federal Regulations 
as set forth below:

PART 1061--PROCEDURES FOR THE ISSUANCE OF GUIDANCE DOCUMENTS

Sec.
1061.1 Purpose.
1061.2 Definitions.
1061.3 Procedures for issuing guidance documents.
1061.4 Petitions for withdrawal or modification of guidance 
documents.

    Authority: 42 U.S.C. 7254; 42 U.S.C. 7101 et seq.; E.O. 13891, 
84 FR 55235.


Sec.  1061.1  Purpose.

    This part establishes DOE procedures for the issuance and review of 
new or revised guidance documents, and procedures for the public to 
petition for the withdrawal or removal of DOE guidance documents.


Sec.  1061.2  Definitions.

    For purposes of this part, the following terms, phrases and words 
are defined as follows:
    Administrator means the Administrator of the Office of Information 
and Regulatory Affairs within the Office of Management and Budget.
    DOE means the U.S. Department of Energy.
    Guidance document means an agency statement of general 
applicability, intended to have future effect on the behavior of 
regulated parties, which sets forth a policy on a statutory, 
regulatory, or technical issue, or an interpretation of a statute or 
regulation, but does not include:
    (1) Rules promulgated pursuant to notice and comment under the 
Administrative Procedure Act, 5 U.S.C. 553, or similar statutory 
provisions;
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (3) Rules of agency organization, procedure, or practice;
    (4) Decisions of agency adjudications under 5 U.S.C. 554, 42 U.S.C. 
6303(d)(3)(A), or similar statutory provisions;
    (5) Internal executive branch legal advice or legal opinions 
addressed to executive branch officials;
    (6) Agency statements of specific, rather than general, 
applicability, including advisory or legal opinions directed to 
particular parties about circumstance-specific questions, notices 
regarding particular locations or facilities, and correspondence with 
individual persons or entities, including notices of violation and 
warning letters;
    (7) Briefs and other positions taken in litigation, enforcement 
actions, and financial assistance or contract bid protests, appeals or 
any other contract or financial assistance litigation;
    (8) Agency statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation, including, but not limited to, speeches, 
presentations, editorials, media interviews, press materials, 
congressional testimony, and congressional correspondence;
    (9) Guidance pertaining to military or foreign affairs functions;
    (10) Guidance or policies pertaining to financial assistance 
formation, funding opportunity announcements, awards and administration 
of financial assistance;
    (11) Guidance or policies pertaining to contract formation, 
solicitations, awards and administration of contracts;
    (12) Guidance or policies pertaining to the administration or 
oversight of capital asset projects or projects treated as capital 
asset projects by the Department;
    (13) Guidance pertaining to execution of the Department's small 
business programs and achievement, including compliance with the Small 
Business Regulatory Enforcement Fairness Act;
    (14) Grant solicitations and awards;
    (15) Contract solicitations and awards;
    (16) Internal agency policies or guidance directed solely at DOE 
personnel or to other Federal agencies that is not intended to have 
substantial future effect on the behavior of regulated parties; or
    (17) Guidance pertaining to the use, operation, or control of a 
government facility or property; or
    (18) Policies or guidance when the release or disclosure of the 
document is legally prohibited.
    Significant guidance document means a guidance document that may 
reasonably be anticipated to:
    (1) Lead to an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;

[[Page 39502]]

    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles of Executive 
Order 12866.


Sec.  1061.3  Procedures for issuing guidance documents.

    (a) Contents of Guidance Documents. All new or revised DOE guidance 
documents:
    (1) Must comply with all relevant statutes and regulations;
    (2) Must include a clear and prominent statement declaring that:
    (i) The contents of the document do not have the force and effect 
of law and are not meant to bind the public in any way;
    (ii) The document is intended only to provide clarity to the public 
regarding existing requirements under the law or agency policies, 
except as authorized by law or as incorporated into a contract; and
    (iii) DOE will not rely upon the document as an independent basis 
for an enforcement action or other administrative penalty.
    (3) Must avoid using mandatory language such as ``shall,'' 
``must,'' ``required,'' or ``requirement,'' unless the language is 
describing an established statutory or regulatory requirement, or is 
directed solely to DOE personnel and is not intended to have a 
substantial future effect on the behavior of regulated parties;
    (4) Must be written in plain and understandable language; and
    (5) Must include the following attributes: The term ``guidance''; a 
title; identify the issuing agency or office; identify activities to 
which and the persons to whom the document applies; the date of 
issuance; the relation to previous guidance (if applicable); a citation 
to the statutory provision or regulation to which applies; and a short 
summary of the subject matter.
    (b) Review and Clearance by Counsel. All new or revised DOE 
guidance documents must be reviewed by the Office of the Assistant 
General Counsel for Legislation, Regulation and Energy Efficiency prior 
to issuance to:
    (1) Ensure compliance with this part and Executive Order 13891;
    (2) Obtain a determination from the Administrator as to whether the 
guidance document is significant, as defined in this part; and
    (3) If the guidance document is determined to be significant, 
coordinate efforts with the Office of Information and Regulatory 
Affairs within the Office of Management and Budget as prescribed in 
paragraph (c) of this section.
    (c) Procedures for Significant Guidance Documents. For any guidance 
document deemed to be a significant guidance document by the 
Administrator, DOE shall:
    (1) Publish notice of the guidance document in the Federal Register 
and on DOE's guidance website, and provide a public notice and comment 
period of not less than 30 days prior to the issuance of the final 
significant guidance document;
    (2) Provide publicly available responses to major and relevant 
concerns raised in comments;
    (3) Obtain approval of the significant guidance document by the 
Secretary of Energy or DOE component head appointed by the President 
prior to issuance of the final significant guidance document;
    (4) In accordance with the procedures of Executive Order 12866, 
obtain review of the significant guidance document by the Administrator 
prior to issuance of the final significant guidance document;
    (5) Comply with applicable requirements of Executive Orders 12866, 
13563, 13609, 13771, and 13777.
    (d) Exception to notice and comment procedures. DOE may dispense 
with the requirements of paragraphs (c)(1) and (2) of this section 
where DOE finds for good cause that notice and public comment for a 
significant guidance document are impracticable, unnecessary, or 
contrary to the public interest. DOE shall incorporate such finding and 
a brief statement of the reasons for such finding into the significant 
guidance document.
    (e) Other Exceptions. The procedural requirements of paragraph (c) 
of this section shall not apply, in whole or in part, when:
    (1) DOE and the Administrator agree that exigency, safety, health, 
or other compelling cause warrants an exemption from the relevant 
requirement or requirements; or
    (2) The significant guidance document is of a kind for which DOE 
and the Administrator have developed a categorical exception from the 
relevant requirement or requirements, as approved by the Administrator.
    (f) Electronic Availability of Guidance. DOE will:
    (1) Ensure that all guidance documents, as defined in this part, 
are available to the public on the DOE website through a single web 
page portal; and
    (2) State clearly and prominently on its web page portal that 
guidance documents lack the force and effect of law, except as 
authorized by law or as incorporated into a contract.
    (g) Rescinded Guidance Documents. All guidance documents, as 
defined in this part, that are not posted on DOE's website portal as 
described in paragraph (a) of this section shall be deemed rescinded, 
unless and until DOE subjects such guidance documents to the procedures 
of this section. Except for the purposes of establishing historical 
facts, DOE will not cite, use, or rely upon rescinded guidance 
documents unless and until DOE subjects such guidance documents to the 
procedures of this section.


Sec.  1061.4  Petitions for withdrawal or modification of guidance 
documents.

    (a) Filing a petition. Any person may petition DOE to withdraw or 
modify a guidance document. The petition must be addressed to the 
Assistant General Counsel for Legislation, Regulation, and Energy 
Efficiency, Attention: Petition for Modification or Withdrawal of 
Guidance Document, and either:
    (1) Sent by mail addressed to: Forrestal Building, U.S. Department 
of Energy, 1000 Independence Avenue SW, Washington, DC 20585;
    (2) Sent by email to [email protected]; or
    (3) Hand delivered to DOE at 1000 Independence Avenue SW, 
Washington, DC 20585.
    (b) Content of petition. For each petition filed under this 
section, the petitioner must:
    (1) Specify the petitioner's:
    (i) Name, or if the petitioner is an organization, the name of the 
organization and the name and authority of the individual who signed 
the petition on behalf of the organizational or corporate petitioner;
    (ii) Telephone number;
    (iii) Mailing address; and
    (iv) Email address (if available).
    (2) Identify the guidance document to be withdrawn or modified; and
    (3) Be signed by the petitioner or authorized representative.
    (c) Additional information. To assist DOE in responding 
appropriately to the petition, a petitioner should also:
    (1) Present any specific problems or issues that the petitioner 
believes are associated with the guidance document, including any 
specific circumstances in which the guidance document is incorrect, 
incomplete, obsolete, or inadequate;
    (2) Present any proposed solution to either modify or withdraw the 
guidance document, including a discussion of

[[Page 39503]]

how the petitioner's proposed solution resolves the issues identified 
under paragraph (c)(1) of this section;
    (3) In the case of a petition for modification of a guidance 
document, specify any modifications to the text of the document that 
petitioner seeks;
    (4) Cite, enclose, or reference technical, scientific, or other 
data or information supporting the petitioner's assertions under 
paragraphs (c)(1) and (2) of this section.
    (d) Public comment. DOE will publish a petition for modification or 
withdrawal of a guidance document and supporting documentation in the 
Federal Register, and provide opportunity for public comment. DOE may 
dispense with the notice and comment procedures in this paragraph where 
DOE finds for good cause that notice and public comment are 
impracticable, unnecessary, or contrary to the public interest, or 
where exigency, safety, health, or other compelling cause warrants an 
exemption from the notice and comment procedures in this paragraph. DOE 
shall incorporate such finding and a brief statement of the reasons for 
such finding into its decision on the petition.
    (e) Confidential business information. In accordance with the 
provisions set forth in 10 CFR 1004.11, any request for confidential 
treatment of any information contained in a petition for modifying or 
withdrawing a guidance document, or in supporting documentation, must 
be accompanied by a copy of the petition or supporting documentation 
from which the information claimed to be confidential has been deleted. 
DOE will publish in the Federal Register the petition and supporting 
documents from which confidential information, as determined by DOE, 
has been deleted in accordance with 10 CFR 1004.11.
    (f) Disposition of petition. DOE shall determine the appropriate 
disposition of a petition after consideration of the petition and any 
supporting documents received, as well as any public comment received 
on the petition, within 90 days of DOE's publication in the Federal 
Register of such petition, to the maximum extent practicable.
    (g) Exhaustion of administrative remedies. Before any DOE action 
under this part is final, a person must exhaust his or her 
administrative remedies. To exhaust administrative remedies under this 
part, a person must:
    (1) Avail himself or herself of the procedures in this section; and
    (2) Receive a final disposition from DOE in accordance with 
paragraph (f) of this section.

[FR Doc. 2020-13458 Filed 6-30-20; 8:45 am]
BILLING CODE 6450-01-P