Guidance Document Procedures, 1279-1281 [2020-28881]

Agencies

• COUNCIL ON ENVIRONMENTAL QUALITY

[Federal Register Volume 86, Number 5 (Friday, January 8, 2021)]
[Rules and Regulations]
[Pages 1279-1281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28881]


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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Part 1519

RIN 0331-AA04


Guidance Document Procedures

AGENCY: Council on Environmental Quality.

ACTION: Final rule.

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SUMMARY: Pursuant to Executive Order (E.O.) 13891, ``Promoting the Rule 
of Law Through Improved Agency Guidance Documents,'' this final rule 
establishes the process that the Council on Environmental Quality (CEQ) 
will follow for issuing guidance documents. E.O. 13891 requires Federal 
agencies to finalize regulations or amend existing regulations to 
establish processes and procedures for issuing guidance documents.

DATES: This rule is effective January 8, 2021.

FOR FURTHER INFORMATION CONTACT: Amy B. Coyle, Deputy General Counsel, 
Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 
20503, (202) 395-5750, [email protected].

SUPPLEMENTARY INFORMATION: 
    On October 9, 2019, President Trump issued E.O. 13891,\1\ which 
addresses the development, use, and public availability of agency 
guidance documents. It requires agencies to promulgate or update 
existing regulations setting forth their procedures for issuing 
guidance documents. In accordance with section 6 of E.O. 13891, on 
October 31, 2019, the Office of Management and Budget (OMB) issued 
memorandum M-20-02, ``Guidance Implementing Executive Order 13891, 
Titled `Promoting the Rule of Law Through Improved Agency Guidance 
Documents' '' (OMB M-20-02) \2\ to provide guidance and implement the 
Executive order. OMB M-20-02 provides agencies with additional 
instruction on how to implement E.O. 13891, including the required 
rulemaking.
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    \1\ 84 FR 55235 (Oct. 15, 2019).
    \2\ OMB M-20-02 is available at https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.
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I. Summary of Final Rule

    In this final rule, CEQ adds a new part 1519 to the Code of Federal 
Regulations to set out its procedures for the development and issuance 
of guidance documents consistent with the direction and reflecting the 
policies described in E.O. 13891 and OMB M-20-02.

A. Section 1519.1, ``Purpose''

    Section 1519.1, ``Purpose,'' states that the purpose of part 1519 
is to implement E.O. 13891, and explains CEQ's process for developing 
and issuing guidance.

B. Section 1519.2, ``Guidance Document Procedures''

    Section 1519.2, ``Guidance document procedures,'' defines 
``guidance documents'' in paragraph (a) and describes documents that do 
not meet that definition in paragraph (b), consistent with section 2(b) 
\3\ of the E.O. and Q2 of OMB M-20-02.
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    \3\ E.O. 13891 section 2(b) lists the following as exclusions to 
the definition of guidance document. 84 FR at 55235-36.
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    Paragraph (c) of Sec.  1519.2 lists the minimum requirements for 
any document meeting the definition of a guidance document consistent 
with Q22 of OMB M-20-02, including a title, unique identification 
number, date, indication of whether it revises or replaces prior 
guidance, summaries, and legal citations. Additionally, consistent with 
section 4(i) of E.O. 13891, paragraph (c)(6) includes a requirement 
that each guidance document clearly state that it does not bind the 
public, except as authorized by law or as incorporated into a contract.
    Paragraph (c)(11) of Sec.  1519.2 specifies that any guidance 
document must be posted on CEQ's website. E.O. 13891 also directed 
Federal agencies to make guidance documents publicly available in an 
indexed, searchable database online. As described in the Federal 
Register notice published today, CEQ has complied with this requirement 
through its website whitehouse.gov/ceq/resources.\4\ As noted on this 
website, CEQ may not cite, use, or rely on any guidance that is not 
posted on its web pages except to establish historical facts. CEQ also 
makes clear that CEQ's guidance documents lack the force and effect of 
law, unless expressly authorized by statute or incorporated into a 
contract.
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    \4\ CEQ's website, whitehouse.gov/ceq/resources, includes links 
to CEQ guidance documents and resources, some of which are provided 
on nepa.gov and sustainability.gov.
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    Finally, paragraph (d) of Sec.  1519.2 requires the CEQ Office of 
the General Counsel to review and clear all guidance documents before 
CEQ issues them.

C. Section 1519.3, ``Procedures for the Public To Request Withdrawal or 
Modification of a Guidance Document''

    Consistent with section 4(ii) of E.O. 13891, Sec.  1519.3, 
``Procedures for the public to request withdrawal or modification of a 
guidance document,'' addresses the process for members of the public to 
petition CEQ to withdraw or modify a particular guidance document, 
including designation of the Office of the General Counsel as the 
office within CEQ to which the public should direct such petitions. CEQ 
intends to provide additional instructions on its guidance website, 
including appropriate contact information and format of the petitions.

D. Section 1519.4, ``Significant Guidance Documents''

    Finally, Sec.  1519.4, ``Significant guidance documents,'' 
addresses specific requirements for a subset of ``guidance documents'' 
that are ``significant guidance documents'' as defined by section 2(c) 
of E.O. 13891. Paragraph (a) sets forth that definition. OMB's Office 
of Information and Regulatory Affairs (OIRA) makes the final 
determination of whether a guidance document is significant. If OIRA 
makes such a determination for a particular guidance document, this 
section will also apply. Consistent with section 4(iii) of E.O. 13891, 
paragraph (b) sets forth procedural requirements, including public 
notice and comment for at least 30 days, unless an exception applies; 
public response to major concerns raised in comments; approval on a 
non-delegable basis by the Chairman, or an official acting as Chairman; 
review by OIRA under Executive Order 12866; and compliance with the 
applicable requirements for regulations or rules.

II. Rulemaking Analyses and Notices

A. Regulatory Procedures

    Under the Administrative Procedure Act, an agency may waive notice 
and comment procedures if an action is an interpretative rule, a 
general statement of policy, or a rule of agency organization, 
procedure, or practice. See 5 U.S.C. 553(b)(A). This rule describes the 
internal process that CEQ will follow to comply with the requirements 
specified in E.O. 13891 when issuing guidance documents as defined by 
the

[[Page 1280]]

E.O. Because this rule is one of agency organization, procedure, or 
practice, it is exempt from the requirement to provide prior notice and 
opportunity for public comment.

B. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)

    E.O. 12866 provides that OIRA will review all significant rules. 
E.O. 13563 reaffirms the principles of E.O. 12866, calling for 
improvements in the Federal government's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory 
objectives. OMB determined that this final rule does not meet the 
requirements for a significant regulatory action under E.O. 12866, as 
supplemented by E.O. 13563, and therefore it was not subject to review.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, as amended (RFA), 5 U.S.C. 601 et 
seq., and E.O. 13272 do not apply to this rulemaking because it is not 
subject to the notice and comment requirements of 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act

    A statement containing the information required by the Unfunded 
Mandates Reform Act, 2 U.S.C. 1531 et seq., is not required. This rule 
will not impose an unfunded mandate on State, local, or Tribal 
governments or the private sector of more than $100 million per year, 
and it will not have a significant or unique effect on State, local, or 
Tribal governments, or the private sector.

E. Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)

    This rule is not an E.O. 13771 regulatory action because this rule 
is not significant under E.O. 12866.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule will not 
have sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement because it will not substantially 
and directly affect the relationship between the Federal and State 
governments.

G. National Environmental Policy Act

    The purpose of this rulemaking is to formalize the CEQ's 
administrative procedures for issuing guidance documents, as required 
by E.O. 13891. CEQ has determined that the final rule is a non-major 
Federal action under the National Environmental Policy Act, 42 U.S.C. 
4321 et seq., and would not have any effect on the environment because 
it merely outlines internal CEQ administrative procedures and does not 
authorize any activity or commit resources to a project that may affect 
the environment.

H. Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. This rule will not impose recordkeeping or reporting 
requirements on State, local, or Tribal governments, individuals, 
businesses, or organizations.

List of Subjects in 40 CFR Part 1519

    Administrative practice and procedure, Guidance.

Mary B. Neumayr,
Chairman.


0
For the reasons stated in the preamble, the Council on Environmental 
Quality adds 40 CFR part 1519 as follows:

PART 1519--GUIDANCE DOCUMENTS

Sec.
1519.1 Purpose.
1519.2 Guidance document procedures.
1519.3 Procedures for the public to request withdrawal or 
modification of a guidance document.
1519.4 Significant guidance documents.

    Authority:  42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; and E.O. 
13891, 84 FR 55235.


Sec.  1519.1   Purpose.

    (a) This part implements Executive Order 13891, ``Promoting the 
Rule of Law Through Improved Agency Guidance Documents,'' and reflects 
the policies described in that order. The provisions in this part 
address the Council on Environmental Quality's procedures for the 
development and issuance of agency guidance documents. This part 
explains what constitutes guidance documents, and sets forth the 
minimum requirements for guidance documents, the procedures to request 
withdrawal or modification of guidance documents, and the additional 
requirements and procedures for significant guidance documents.
    (b) This part is intended to improve the internal management of the 
Council on Environmental Quality. It is not intended to and does not 
create any right or benefit, substantive or procedural, enforceable at 
law or in equity by any party against the United States, its agencies 
or other entities, its officers or employees, or any other person.
    (c) If Executive Order 13891 or any provision thereof is rescinded 
or superseded, this part remains in effect.


Sec.  1519.2  Guidance document procedures.

    (a) Definition of guidance documents. For purposes of this part, 
guidance documents are agency statements of general applicability, 
intended to have future effect on the behavior of regulated parties, 
that set forth a policy on a statutory, regulatory, or technical issue, 
or an interpretation of a statute or regulation.
    (b) Documents excluded from the definition of guidance documents. 
Guidance documents do not include:
    (1) Agency statements of specific, rather than general, 
applicability.
    (2) Agency statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation.
    (3) Legislative rules promulgated under 5 U.S.C. 553 (or similar 
statutory provisions), or exempt from rulemaking requirements under 5 
U.S.C. 553(a).
    (4) Rules of agency organization, procedure, or practice that are 
not anticipated to have substantial future effect on the behavior of 
regulated parties or the public.
    (5) Decisions of agency adjudication.
    (6) Documents or agency statements that are directed solely to the 
Council on Environmental Quality or other agencies (or personnel of 
such agencies) that are not anticipated to have substantial future 
effect on the behavior of regulated parties or the public.
    (7) Legal briefs and other court filings.
    (8) Legal advice or opinions from the Council on Environmental 
Quality's Office of the General Counsel.
    (9) Categories of guidance documents made exempt from Executive 
Order 13891 by the Administrator of the Office of Management and 
Budget's Office of Information and Regulatory Affairs through memoranda 
issued pursuant to section 4(b) of Executive Order 13891.
    (c) Elements of guidance documents. In general, each guidance 
document must:
    (1) Provide the title of the guidance document;
    (2) Provide a unique document identification number;
    (3) Identify the Council on Environmental Quality and any office, 
as appropriate, issuing the guidance document;
    (4) Include the date of issuance;
    (5) Include the term ``guidance'';
    (6) Include a disclaimer clarifying that it does not have the force 
and effect of law; is not meant to bind the public in any way; and is 
intended only to provide clarity to the public regarding

[[Page 1281]]

existing requirements under the law or agency policies. When a guidance 
document is binding because the law authorizes binding guidance or 
because a contract incorporates the guidance, the Council on 
Environmental Quality must modify the disclaimer to reflect 
accordingly;
    (7) If it is a revision to or a replacement of a previously issued 
guidance document, identify the guidance document that it revises or 
replaces;
    (8) Include a short summary of the subject matter covered in the 
guidance document at the top of the document;
    (9) Identify the activities to which and the persons to whom the 
guidance document applies;
    (10) Include the citation to the statutory provision or regulation 
to which the guidance document applies or which it interprets; and
    (11) Be posted on the Council on Environmental Quality's website.
    (d) Review and clearance. The Office of the General Counsel must 
review and clear all proposed guidance documents before issuance.


Sec.  1519.3  Procedures for the public to request withdrawal or 
modification of a guidance document.

    (a) Any member of the public may petition the Council on 
Environmental Quality to withdraw or modify a guidance document.
    (b) The petitioner must submit the request for the withdrawal or 
modification of a guidance document in writing to the Office of the 
General Counsel. The petition must contain a statement of the reasons 
for the petition and any supporting documents to support the 
petitioner's request.
    (c) Upon receipt of a petition for withdrawal or modification of a 
guidance document, the Office of the General Counsel will consult with 
the relevant offices and coordinate the response to the petition.
    (d) The Council on Environmental Quality should respond to a 
petition in writing, including electronically, within 90 days of 
receipt of a petition. The response should state whether the petition 
is granted, granted in part and denied in part, denied, or 
provisionally denied for lack of adequate information. If the petition 
is provisionally denied for lack of adequate information, the response 
should indicate what additional information is necessary to adjudicate 
the petition. The Office of the General Counsel should respond to the 
petition in writing no later than 90 days after receipt of the 
necessary additional information. The response should state whether the 
petition is granted, granted in part and denied in part, or denied.
    (e) The Council on Environmental Quality may consider in a 
coordinated manner or provide a coordinated response to similar 
petitions for withdrawal or modification.
    (f) The Council on Environmental Quality need not respond to 
petitions under this part for withdrawal or modification of documents 
that do not meet the definition of a guidance document.


Sec.  1519.4  Significant guidance documents.

    (a) Significant guidance documents definition. For the purposes of 
this section, significant guidance documents are guidance documents 
that may be reasonably 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.
    (b) Actions the Council on Environmental Quality will take before 
issuing significant guidance documents. When the Office of Management 
and Budget's Office of Information and Regulatory Affairs determines 
that a guidance document is a significant guidance document, the 
Council on Environmental Quality must:
    (1) Submit the guidance document for review by the Office of 
Information and Regulatory Affairs under Executive Order 12866;
    (2) Publish the draft significant guidance document in the Federal 
Register for a public notice and comment period of at least 30 days;
    (i) This provision will not apply if the Council on Environmental 
Quality for good cause finds that notice and public comment is 
impracticable, unnecessary, or contrary to the public interest.
    (ii) If such a finding is made, the Council on Environmental 
Quality must incorporate such a finding and a brief statement of its 
reasoning into the significant guidance document.
    (3) Obtain approval on a non-delegable basis from the Chairman or 
an official who is serving in an acting capacity as the Chairman.
    (4) Provide a public response to major concerns raised in comments 
on the draft significant guidance document.
    (5) Announce the availability of the final significant guidance 
document.
    (6) Comply with the applicable requirements for regulations or 
rules, including significant regulatory actions, set forth in Executive 
Orders 12866, ``Regulatory Planning and Review,'' 13563, ``Improving 
Regulation and Regulatory Review,'' 13609, ``Promoting International 
Regulatory Cooperation,'' 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' and 13777, ``Enforcing the Regulatory Reform 
Agenda.''
    (c) Exemption. This section will not apply if the Chairman or an 
official who is serving in an acting capacity as the Chairman of the 
Council on Environmental Quality and the Administrator of the Office of 
Information and Regulatory Affairs agree that exigency, safety, health, 
or other compelling cause warrants an exemption from some or all 
requirements.

[FR Doc. 2020-28881 Filed 1-7-21; 8:45 am]
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