[Federal Register Volume 86, Number 52 (Friday, March 19, 2021)]
[Rules and Regulations]
[Pages 14807-14808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05585]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 52 / Friday, March 19, 2021 / Rules 
and Regulations  

[[Page 14807]]



DEPARTMENT OF ENERGY

10 CFR Part 1061

RIN 1990-AA50


Procedures for the Issuance of Guidance Documents

AGENCY: Office of General Counsel, Department of Energy.

ACTION: Final rule; delay of effective date.

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SUMMARY: This document further delays the effective date of a recently 
published final rule establishing procedures for the issuance of 
Department of Energy (DOE) guidance documents.

DATES: The effective date of the rule establishing 10 CFR part 1061 
published January 6, 2021, at 86 FR 451, and delayed to March 21, 2021 
at 86 FR 7799, February 2, 2021, is further delayed to June 17, 2021.

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: On February 2, 2021, the United States 
Department of Energy (``DOE'') postponed the effective date of its 
final rule establishing procedures for the issuance of DOE guidance 
documents, published in the Federal Register on January 6, 2021 (86 FR 
451), until March 21, 2021 (86 FR 7799, February 2, 2021). The January 
6, 2021, rule implemented Executive Order 13891 (84 FR 55235), which 
the President revoked on January 20, 2021, in Executive Order 13992 (86 
FR 7049). Executive Order 13992 directed the Director of the Office of 
Management and Budget and the heads of agencies to promptly take steps 
to rescind any rules, regulations, guidelines, or policies, or portions 
thereof, implementing or enforcing Executive Order 13891, among other 
Executive orders, as appropriate and consistent with applicable law, 
including the Administrative Procedure Act, 5 U.S.C. 551 et seq. DOE's 
delay of the effective date of its January 6, 2021, guidance rule was 
necessary to give DOE officials the opportunity to promptly take steps 
to rescind the rule as directed by Executive Order 13992. DOE also 
sought comment on any further delay of the effective date, including 
the impacts of such delay, as well as comment on the legal, factual, or 
policy issues raised by the rule. DOE received no comments on these 
issues.
    DOE intends to publish a separate notice of proposed rulemaking in 
the future to withdraw the January 6, 2021, guidance rule. Further 
delay of the effective date of the guidance rule is necessary to allow 
DOE to consider comments on the proposed withdrawal and further review 
its regulations in light of Executive Order 13992 before the rule goes 
into effect. Accordingly, DOE delays the effective date of 10 CFR part 
1061 to June 17, 2021.
    To the extent that 5 U.S.C. 553 applies to this action, it is 
exempt from notice and comment because it constitutes a rule of 
procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation 
of this action without opportunity for public comment, effective 
immediately upon publication in the Federal Register, is based on the 
good cause exceptions in 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3). 
Pursuant to 5 U.S.C. 553(b)(B), DOE has determined that good cause 
exists to forego the requirement to provide prior notice and an 
opportunity for public comment thereon for this rule as such procedures 
would be impracticable, unnecessary or contrary to the public interest. 
As an initial matter, DOE provided an opportunity for comment related 
to the earlier extension of the effective date, and no comments were 
submitted. Further, DOE has tentatively concluded that, if it goes into 
effect, the January 6, 2021 final rule will hinder DOE in providing 
timely guidance in furtherance of DOE's statutory duties. The final 
rule will in particular hinder DOE's ability to address the economic 
recovery and climate change challenges enumerated in Executive Order 
13992. As discussed in the Executive Order, agencies must have 
flexibility to timely and effectively address these challenges. The 
procedures of 10 CFR part 1061 are not required by the Administrative 
Procedure Act (5 U.S.C. 551 et seq.), and they limit the regulatory 
tools available to DOE to address the challenges listed in Executive 
Order 13992. Part 1061 deprives DOE of flexibility in determining when 
and how best to issue guidance based on particular facts and 
circumstances, and restricts DOE's ability to provide timely guidance 
on which the public can confidently rely.
    In addition, DOE's stated purpose in issuing part 1061 was to 
promote transparency and public involvement in the development and 
amendment of DOE guidance documents. DOE notes, however, that its 
procedures for public transparency and involvement in the development 
of agency guidance documents will remain unchanged by withdrawal of 
part 1061. DOE guidance documents will continue to be available on 
DOE's website. DOE will also continue its practice, as appropriate, of 
soliciting stakeholder input on guidance documents of significant 
stakeholder and public interest. Additionally, stakeholders may still 
petition DOE at any time to issue, withdraw or revise DOE guidance 
documents, or inquire about DOE guidance documents, by emailing 
petitions or inquiries to [email protected]. The benefits of binding 
DOE to the procedures of part 1061 therefore appear outweighed by the 
need for DOE to have the ability to issue guidance timely and 
effectively to address the challenges listed in the Executive Order, 
and otherwise to meet its statutory duties. Moreover, DOE notes that 
guidance, whether issued under part 1061 or otherwise, is non-binding, 
and does not have the force and effect of law.
    As a result, seeking public comment on this delay is unnecessary 
and contrary to the public interest. For these same reasons DOE finds 
good cause to waive the 30-day delay in effective date provided for in 
5 U.S.C. 553(d).

Signing Authority

    This document of the Department of Energy was signed on March 13, 
2021, by John T. Lucas, Acting General Counsel, Office of the 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

[[Page 14808]]

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 March 15, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-05585 Filed 3-18-21; 8:45 am]
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