Procedures for the Issuance of Guidance Documents, 451-458 [2020-27875]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 86, Number 3 (Wednesday, January 6, 2021)]
[Rules and Regulations]
[Pages 451-458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27875]


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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: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) publishes this final rule 
to establish procedures for the issuance of DOE guidance documents in 
accordance with Executive Order 13891. In this final rule, DOE 
establishes internal agency requirements for the contents of guidance 
documents, and procedures for providing notice of, and soliciting 
public comment on, certain guidance documents. This final rule also 
establishes procedures for the public to petition DOE to modify or 
withdraw guidance documents.

DATES: The effective date of this rule is February 5, 2021.

ADDRESSES: The docket for this rulemaking, 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, not all documents listed in the index, such as those 
containing information that is exempt from public disclosure by law, 
may be publicly available. A link to the docket web page can be found 
at https://www.regulations.gov/document?D=DOE-HQ-2020-0033-0001. The 
docket web page explains how to access all documents, including public 
comments, in the docket.

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:

I. Summary of Final Rule

    In this final rule, DOE incorporates into the Code of Federal 
Regulations a new 10 CFR part 1061, which implements the requirements 
of Executive Order 13891, ``Promoting the Rule of Law Through Improved 
Agency Guidance Documents.'' (84 FR 55235 (Oct. 15, 2019)) Among other 
things, Executive Order 13891 requires agencies to provide more 
transparency for their guidance documents by creating a searchable 
online database for current guidance documents,\1\ 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.\2\ 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 55235, 
55237)
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    \1\ DOE's online database may be found at energy.gov/guidance.
    \2\ 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 55235, 55236)
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    This final rule applies to all DOE guidance documents, as defined 
by Executive Order 13891, including the exceptions listed in section 2 
of the Executive Order. This final rule also lists 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). (See also OMB M-20-02, Guidance Implementing Executive Order 
13891, Titled ``Promoting the Rule of Law Through Improved Agency 
Guidance Documents'' (Oct. 31, 2019), available at https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf). This final rule also adopts the same definition of 
``significant guidance document'' as section 2 of Executive Order 
13891.
    In accordance with Executive Order 13891, this final rule requires 
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

[[Page 452]]

regarding existing statutory and regulatory requirements. Moreover, 
this final rule requires that DOE guidance documents be written clearly 
and 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, this final rule requires that the document 
include a clear and prominent statement that the guidance document will 
not be used as an independent basis for enforcement, that conformity 
with the guidance document is strictly voluntary, and that 
nonconformity will not affect the rights and obligations of regulated 
parties.
    This final rule also requires that all DOE guidance documents be 
reviewed and cleared by the Department's Office of the General Counsel. 
Additionally, this final rule requires that significant guidance 
documents be signed 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.
    This final rule also codifies 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, 
this final rule codifies agency procedures that are already in use for 
significant guidance documents. This final rule also provides 
procedures for the public to petition the agency to modify or withdraw 
guidance documents. DOE notes that the procedures in this final rule 
for petitions to modify or withdraw guidance documents are similar to 
the procedures that DOE uses for petitions for rulemaking.

II. Summary of Comments and DOE Responses

    On July 1, 2020, DOE published a notice of proposed rulemaking 
(NOPR) in which DOE proposed new part 1061 to implement the 
requirements of Executive Order 13891. (85 FR 39495) In the NOPR, DOE 
also granted in part, and denied in part, a petition for rulemaking 
submitted by 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.\3\ DOE received four 
comments on the NOPR, which are summarized below along with DOE's 
responses. Based on comments, DOE is making changes between the 
proposed rule and this final rule, as described in DOE's responses 
below.
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    \3\ See 84 FR 50791 (Sept. 26, 2019). NCLA's petition, the 
notice soliciting comment, and comments received on the petition may 
be found on https://www.regulations.gov under docket number DOE-HQ-
2020-0002, document number 2019-20540.
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Comments of NCLA

    NCLA's comments \4\ responded specifically to a portion of NCLA's 
petition for rulemaking that DOE declined to include in the NOPR: 
Procedures addressing finality and judicial review of agency guidance. 
NCLA stated that DOE should further clarify part 1061 to express the 
availability of judicial review after final disposition of a petition 
for the withdrawal or modification of guidance documents under the 
procedures of Sec.  1061.4. (NCLA at 3) NCLA disagreed with DOE's 
statement in the NOPR that ``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'' and that the 
provisions concerning finality or judicial review sought by NCLA would 
not be as useful to regulated parties as the provisions DOE proposed in 
the NOPR, because the provisions in the proposed rule ``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.'' (NCLA at 3; see also 85 FR 
39497) NCLA stated that the judiciary has historically lacked the 
ability to review improper agency guidance because, in part, the APA 
typically permits review only of final agency action, and the failure 
to achieve finality under the APA has resulted in courts being unable 
to consider the coercive effects of guidance documents. NCLA further 
stated that when an agency's guidance review process falls short, clear 
procedures identifying when an agency action is final and what review 
is available allow an interested party to seek meaningful redress from 
the courts. (NCLA at 3)
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    \4\ NCLA's comments may be found on https://www.regulations.gov 
under docket number DOE-HQ-2020-0002 with the Comment ID DOE-HQ-
2020-0033-0004.
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    NCLA further stated that, as proposed, Sec.  1061.4 contemplates 
the finality of DOE's action on a petition and suggests that judicial 
review under the APA may be available, but it does not provide a 
specific recourse for a petitioner who disagrees with the agency's 
disposition of a petition. NCLA concluded that Sec.  1061.4 should 
include an explicit provision stating that if a person exhausts his or 
her administrative remedies in accordance with paragraph (g) of Sec.  
1061.4, then the disposition of the petition submitted in accordance 
with Sec.  1061.4 shall constitute final agency action under the APA 
and shall be subject to review under the judicial review provisions of 
the APA. (NCLA at 4)

DOE Response

    In response, DOE emphasizes that the final rule requires DOE 
guidance documents to explicitly state that they are non-binding and do 
not have the force and effect of law, and prohibits DOE from relying on 
guidance documents as an independent basis for enforcement. Enforcement 
actions must be based on the underlying statutory or regulatory 
requirements. The requirements of this final rule make clear that no 
binding legal obligations or consequences flow from DOE guidance 
documents, and that compliance with a guidance document is voluntary. 
With respect to petitions for modification or withdrawal of DOE 
guidance documents, DOE declines to make the changes sought by NCLA. 
This final rule makes clear that a petitioner must avail himself or 
herself of the procedures in Sec.  1061.4. After those procedures have 
been exhausted and the petitioner receives a final disposition of the 
petition, DOE's consideration of the petition is complete, and DOE will 
take no further action on the petition. As in the proposed rule, DOE 
notes that courts are responsible for determining whether judicial 
review is available under the APA for a particular agency action, 
including DOE's disposition of a petition under Sec.  1061.4. Courts 
are in the best position to determine if an agency action is final and 
ripe for review, and whether legal consequences actually flow from said 
action, and therefore, DOE declines to include a provision stating when 
judicial review of a guidance document or a petition to modify or 
withdraw guidance document would be available. In addition, DOE notes 
that this final rule 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. 
Accordingly, DOE declines to incorporate NCLA's suggested changes into 
this final rule.

[[Page 453]]

Comments of MHARR

    The Manufactured Housing Association for Regulatory Reform (MHARR) 
provided comments \5\ in support of NCLA's petition for rulemaking and 
DOE's proposed rule, except to the extent that the proposed rule 
omitted procedural and substantive protections set forth in NCLA's 
petition for rulemaking, particularly procedures to ensure that DOE 
comply with the Congressional Review Act (CRA). (5 U.S.C. 801-808) 
MHARR stated that it supports the adoption of all elements of NCLA's 
petition, including specific CRA compliance procedures. (MHARR at 2) 
MHARR stated that it has observed agencies, including DOE, abuse the 
guidance document process to impose de facto regulatory mandates and 
associated burdens. MHARR continued that such guidance documents impose 
significant cost burdens on regulated parties, including MHARR members, 
without affording interested parties opportunity to comment or to 
challenge such guidance in court. (MHARR at 3) MHARR further stated 
that, as set forth in Executive Order 13891, the imposition of new 
obligations through guidance documents is against statutory law, as 
well as the Constitution, and therefore, the proposed regulatory 
language offered in NCLA's petition for rulemaking should be included 
in this final rule. Additionally, MHARR stated that, in particular, the 
CRA compliance provisions offered in NCLA's petition should be included 
in the final rule because the CRA encompasses guidance documents, and 
MHARR disagreed with DOE's assertion in the NOPR that DOE's internal 
procedure adequately govern DOE's compliance with the CRA because DOE 
and other agencies have undertaken covered actions on an ongoing basis 
without full compliance with the CRA and its substantive requirements. 
(MHARR at 3)
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    \5\ MHARR's comments may be found on https://www.regulations.gov 
under docket number DOE-HQ-2020-0002 with the Comment ID DOE-HQ-
2020-0033-0002.
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DOE Response

    Consistent with MHARR's comments, the final rule establishes 
procedures to ensure that the agency's process for the issuance and 
modification of guidance documents is transparent and accessible to the 
public, including by allowing public comment on significant guidance 
documents. The final rule also assures regulated parties that such 
guidance is not legally binding, and does not affect the rights and 
obligations of regulated parties. The final rule implements, and is 
consistent with, the requirements of Executive Order 13891. With 
respect to MHARR's comments on the proposed CRA compliance provisions 
in NCLA's petition, DOE declines to include such provisions in the 
final rule. As DOE stated in the NOPR, current DOE and Executive Branch 
procedures ensure compliance with the CRA. MHARR stated that DOE has 
issued actions covered by the CRA without fully complying with the CRA; 
however, MHARR did not provide any specific examples of such non-
compliant actions. Moreover, the CRA compliance procedures in NCLA's 
petition mirror those that are already required of Executive Branch 
agencies by OMB M-19-14, Guidance on Compliance with the Congressional 
Review Act (Apr. 11, 2019), which NCLA cited in its petition. (See 84 
FR 5079, 50797 (Sept. 26, 2019)) Accordingly, the CRA compliance 
procedures proffered by NCLA, and supported by MHARR, are already in 
place in Executive Branch policy. Additionally, this final rule 
requires DOE to consult with, and receive a determination from, OIRA on 
the significance of DOE guidance documents. Therefore, OIRA will have 
the opportunity to determine independently whether a guidance document 
is a ``major'' rule for purposes of the CRA, consistent with 5 U.S.C. 
804(2), or otherwise must be submitted under the CRA's procedures.

Comments of AHRI

    The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) 
\6\ submitted comments in support of DOE's plan to issue procedures on 
the issuance of guidance documents in accordance with Executive Order 
13891. AHRI stated that its experience working with DOE's Office of 
Energy Efficiency and Renewable Energy (EERE) has consistently 
demonstrated alignment with the spirit of Executive Order 13891, that 
AHRI has found DOE's guidance documents to be useful and helpful, and 
that DOE guidance has, on occasion, been particularly useful in quickly 
resolving questions that arise in the implementation of regulations. 
(AHRI at 1) AHRI encouraged DOE to establish procedures that enable 
efficient solutions to short-term challenges. AHRI further stated that 
it appreciates EERE's efforts to make all guidance documents readily 
accessible on its website, and that the establishment of a single web 
portal on DOE's website makes it even easier now for the public to 
locate DOE's guidance documents. (AHRI at 1)
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    \6\ AHRI's comments may be found on https://www.regulations.gov 
under docket number DOE-HQ-2020-0002 with the Comment ID DOE-HQ-
2020-0033-0005.
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DOE Response

    Consistent with the AHRI's comments, the final rule establishes 
procedures consistent with Executive Order 13891 to ensure that the 
agency's process for the issuance and modification of guidance 
documents is transparent and accessible to the public, including 
through DOE's guidance web portal. The procedures in the final rule 
ensure that DOE guidance documents are readily accessible to the public 
online. With respect to AHRI's comments encouraging DOE to establish 
procedures that enable efficient solutions to short-term challenges, 
DOE believes that the procedures in the final rule are sufficient to 
meet such challenges. DOE (acting in conjunction with the Administrator 
of OMB's Office of Information and Regulatory Affairs pursuant to 
section 4(a)(iii) of Executive Order 13891) may dispense with the 
notice and comment procedures of the final rule in exigent 
circumstances or emergencies. DOE may likewise do so when DOE finds for 
good cause (consistent with section 4(a)(iii)(A) of Executive Order 
13891) that notice and public comment for a significant guidance 
document are impracticable, unnecessary, or contrary to the public 
interest. Moreover, non-significant guidance documents need not be 
subject to public notice and comment. Accordingly, DOE made no changes 
to the final rule based on AHRI's comments, because the procedures in 
the final rule allow DOE sufficient flexibility to efficiently address 
short-term or urgent challenges.

Comments of Goodman

    Goodman Manufacturing Company, L.P. (Goodman) \7\ submitted 
comments in support of DOE's proposal to establish procedures for the 
issuance of DOE guidance documents in accordance with Executive Order 
13891. In its comments, Goodman proposed some revisions to the 
provisions in the NOPR, so that the prescribed provisions in the 
proposed new 10 CFR part 1061 do not unduly impact well-established 
existing guidance documents that the HVAC industry has relied upon for 
several years. Goodman stated that it was concerned that the rescission 
of such existing guidance documents would cause uncertainty among 
regulated HVAC manufacturers. (Goodman at 2)

[[Page 454]]

Goodman stated that, as currently proposed, Sec.  1061.3(g) may rescind 
existing guidance documents that do not comply with the procedures in 
Sec.  1061.3(a), and that such rescission would last unless and until 
DOE subjects such guidance documents to these procedures. Goodman 
stated that it is concerned that such immediate action could lead to a 
gap in the availability of guidance to stakeholders for an unknown 
period of time, and that it is not clear to stakeholders which of the 
existing guidance documents are ``posted on DOE's website portal as 
described in paragraph (a) [of Sec.  1061.3],'' and that this lack of 
clarity would cause greater uncertainty, specifically for the HVAC 
industry. (Goodman at 2)
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    \7\ AHRI's comments may be found on https://www.regulations.gov 
under docket number DOE-HQ-2020-0002 with the Comment ID DOE-HQ-
2020-0033-0006.
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    As an alternative, Goodman proposed revising paragraph (g) in Sec.  
1061.3 to state that guidance documents not posted to DOE's web page 
portal are rescinded effective one year after final rule publication or 
whenever DOE subjects such guidance documents to the procedures of this 
section, whichever comes first. Goodman stated that this alternative is 
particularly essential to the HVAC industry regarding the uniform test 
methods for measuring the energy consumption of central air 
conditioners and heat pumps because of the difference in the applicable 
effective dates for Appendices M and M1 to Subpart B of 10 CFR part 
430. (Goodman at 2) Goodman stated that, due to the difference in these 
effective dates, it is imperative that DOE maintain the existing 
guidance document for the usage of an amended test procedure for 
testing, rating, and certifying products prior to the compliance date 
for new standards (``2014 Early Compliance Guidance''), and that 
otherwise Appendix M1 will compel manufacturers to make representations 
in accordance with Appendix M1 on or after the effective date of 
Appendix M1, rather than prior to that date, as allowed under the 2014 
Early Compliance Guidance. (Goodman at 2) Goodman stated that the 2014 
Early Compliance Guidance is particularly essential for products 
subject to regional standards because it allows manufacturers to 
introduce products into commerce well in advance of the 2023 effective 
date as long as those products are tested, rated, and certified in 
accordance with Appendix M1 and the 2023 energy conservation standards, 
thereby providing remaining market actors in the traditional 
distribution chain an option to procure such products in time for the 
2023 installation effective date. (Goodman at 2-3) Goodman requested 
that, at a minimum, DOE indicate on its website portal which guidance 
documents are in compliance and which guidance are not in compliance 
with Sec.  1061.3(a). Goodman also stated that its concerns about 
existing guidance documents apply to guidance other than 2014 Early 
Compliance Guidance, along with a list of examples of such guidance 
documents. (Goodman at 3)
    Goodman also proposed minor editorial revisions for the final rule. 
Specifically, Goodman stated that because the proposed definition of 
``Guidance document'' in paragraph (16) of Sec.  1061.2 already 
eliminates documents ``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,'' the inclusion of this language 
in Sec.  1061.3(a)(3) is duplicative and can be removed. Goodman also 
proposed replacing the word ``will'' in Sec. Sec.  1061.3(f), 
1061.3(g), 1061.4(d) and 1061.4(e) with the word ``shall.'' (Goodman at 
3)

DOE Response

    In response to Goodman, DOE makes clear that the specific guidance 
referenced in the comment has not been rescinded. DOE declines to make 
the changes to Sec.  1061.3(g) proposed by Goodman; however, DOE has 
made a change to Sec.  1061.3(g) to clarify that documents not made 
available through DOE's website portal as described in paragraph (f) of 
Sec.  1061.3 are deemed rescinded under Sec.  1061.3(g). This change 
replaces the text of Sec.  1061.3(g) from the proposed rule that stated 
guidance documents ``not posted to DOE's website portal as described in 
paragraph (a) of [Sec.  1061.3]'' would be deemed rescinded. DOE 
believes that the final rule makes clear that existing documents 
currently available through the guidance web portal, such as the 2014 
Early Compliance Guidance, are in effect. Executive Order 13891 
required that agencies make all effective guidance documents available 
through each agency's guidance web portal, and that otherwise the 
guidance document would be deemed rescinded. However, agencies could 
have reinstated rescinded guidance documents without being subject to 
the procedures of Executive Order 13891 by making them available 
through their guidance web portal by June 27, 2020. Accordingly, any 
DOE guidance document, as defined in part 1061, that was not available 
through the DOE guidance web portal as of June 27, 2020, is deemed 
rescinded. DOE will not cite, use, or rely on any guidance document 
that has been rescinded, except to establish historical facts. However, 
all guidance documents made available through DOE's website portal 
prior to June 27, 2020, and that are currently available through DOE's 
website portal, have not been rescinded and are currently effective and 
may be relied upon. Under the final rule, only new or revised guidance 
documents, or rescinded guidance documents that DOE seeks to reinstate, 
must go through the procedures in Sec.  1061.3. Guidance documents made 
available through DOE's website portal prior to June 27, 2020, and that 
are currently available through DOE's website portal, are currently in 
effect and are not required to go through the procedures in Sec.  
1061.3.
    DOE agrees with Goodman's remaining editorial comments and has 
removed the reference to documents directed at DOE personnel in Sec.  
1061.3(a)(3), and has replaced the term ``will'' with ``shall'' in 
Sec. Sec.  1061.3(f), 1061.3(g), 1061.4(d) and 1061.4(e).

Regulatory Analysis

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

    This final rule is a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' (58 FR 51735 
(Oct. 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 final rule of agency 
procedure and practice. The final 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 
adopts 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

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' (See 82 FR 
9339

[[Page 455]]

(Feb. 3, 2017)) This final rule is not an Executive Order 13771 
regulatory action because it results in costs that are de minimis.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of a regulatory flexibility analysis 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, (Aug. 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 the General Counsel's website: 
https://energy.gov/gc/office-general-counsel.
    The final rule codifies 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 final rule establishes 
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 today's final 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 
a regulatory flexibility act analysis 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 final rule imposes 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 final rule is 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 
1021. That Categorical Exclusion applies to actions that are strictly 
procedural, such as rulemaking establishing the administration of 
grants. The final rule codifies internal agency procedures for issuing 
guidance documents. The action does not have direct environmental 
impacts. No extraordinary circumstances are present that would warrant 
further review. Accordingly, DOE has not prepared an environmental 
assessment or an environmental impact statement.

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

    Executive Order 13132, ``Federalism,'' 64 FR 43255, (Aug. 10, 
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. (65 FR 13735) DOE examined this final 
rule and determined that it will not preempt State law and will 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 (Nov. 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 final rule has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13175. Because this final rule does 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 (Feb. 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 final rule meets 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

[[Page 456]]

costs, benefits, and other effects on the national economy. (2 U.S.C. 
1532(a), (b)) 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 final 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 UMRA 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 final rule does 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 (Mar. 18, 1988), that this final rule does not 
result in any takings which might require compensation under the Fifth 
Amendment to the United States Constitution.

L. Review Under the Information Quality Act

    The Information Quality Act (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 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). DOE has reviewed this final 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)(i) Is a significant 
regulatory action under Executive Order 12866, or any successor order, 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (2) 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 final rule codifies internal agency procedures; it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; and the Administrator of OIRA has not designated it as a 
significant energy action. 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 final 
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 December 
11, 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 December 15, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

0
For the reasons stated in the preamble, DOE adds part 1061 to Chapter X 
of Title 10 of the Code of Federal Regulations as follows:

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, that 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;

[[Page 457]]

    (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;
    (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; identification of the issuing agency or office; identification 
of 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(s), regulation(s), 
or both to which the document 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 General 
Counsel 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 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 signature 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. and any revisions thereto or 
superseding Executive Orders.
    (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 shall:
    (1) Ensure that all guidance documents, as defined in this part, 
are available to the public on the DOE

[[Page 458]]

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 made available through DOE's website 
portal as described in paragraph (f) 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 shall 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 
Office of the General Counsel, 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 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 shall 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 shall 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. 2020-27875 Filed 1-5-21; 8:45 am]
BILLING CODE 6450-01-P