[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
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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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