[Federal Register Volume 86, Number 57 (Friday, March 26, 2021)]
[Proposed Rules]
[Pages 16114-16117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06285]


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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: Notice of proposed rulemaking.

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SUMMARY: In accordance with an Executive Order issued by the President 
on January 20, 2021, and for the reasons explained in the preamble of 
this proposed rule, the Department of Energy (DOE or ``the 
Department'') proposes to withdraw the Department's final rule on 
guidance implementing the Executive Order ``Promoting the Rule of Law 
Through Improved Agency Guidance Documents.''

DATES: The final rule published January 6, 2021 at 86 FR 451, effective 
February 5, 2021, and delayed until June 17, 2021, is proposed to be 
withdrawn. DOE will accept comments regarding this notice of proposed 
rulemaking on or before April 26, 2021. See the section entitled 
``Public Participation'' for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at http://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by RIN 1990-AA50, by any of the 
following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected]. Include the RIN 1990-AA50 in the 
subject line of the message.
    No telefacsimilies (faxes) will be accepted. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the section on Public Participation for 
details.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at http://www.regulations.gov. All documents in the docket are 
listed in the http://www.regulations.gov index. However, some documents 
listed in the index, such as those containing information that is 
exempt from public disclosure, may not be publicly available.
    The docket web page can be found at http://www.regulations.gov/ 
associated with RIN 1990-AA50. The docket web page contains simple 
instructions on how to access all documents, including public comments, 
in the docket. See the section on Public Participation for information 
on how to submit comments through http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On July 1, 2020, DOE published a notice of proposed rulemaking 
(NOPR) in which DOE proposed a new part 1061 in title 10 of the Code of 
Federal Regulations to implement the requirements of Executive Order 
13891, ``Promoting the Rule of Law Through Improved Agency Guidance 
Documents'' (84 FR 55235).\1\ (85 FR 39495) After considering comments 
from stakeholders on the NOPR, DOE published a final rule, on January 
6, 2021, establishing new 10 CFR part 1061. (86 FR 451) As required by 
Executive Order 13891, part 1061 contained internal DOE requirements 
for the contents of guidance documents, procedures for providing notice 
of, and soliciting public comment on, certain guidance documents, and 
procedures for the public to petition for the issuance, withdrawal or 
revision of guidance documents.
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    \1\ In the NOPR, DOE also responded to 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. DOE granted the 
petition in part and denied it in part. (85 FR 39497)
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    On January 20, 2021, the President issued Executive Order 13992, 
``Revocation of Certain Executive Orders Concerning Federal 
Regulation'' (86 FR 7049), which, among other things, revoked Executive 
Order 13891 and directed agencies to promptly take steps to rescind any 
orders, rules, regulations, guidelines, or policies, or portions 
thereof, implementing or enforcing the Executive Order 13891. Executive 
Order 13992 states that it is the policy of the Administration to use 
available tools to confront the urgent challenges facing the Nation, 
including the coronavirus disease 2019 (COVID-19) pandemic, economic 
recovery, racial justice, and climate change. To tackle these 
challenges effectively, executive departments and agencies must be 
equipped with the flexibility to use robust regulatory action to 
address national priorities. This order revokes harmful policies and 
directives that threaten to frustrate the Federal Government's ability 
to confront these problems, and empowers agencies to use appropriate 
regulatory tools to achieve these goals.
    Previously, DOE postponed the effective date of part 1061 until 
March 21, 2021. (86 FR 7799) DOE issued the extension consistent with 
the memorandum issued on January 20, 2021 by the Assistant to the 
President and Chief of Staff (``Chief of Staff'') outlining the 
President's plan for managing the Federal regulatory process at the 
outset of the new Administration and for the reasons described in E.O. 
13992. DOE sought comment on 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 did not receive 
comments on these issues. Accordingly, DOE has further extended the 
effective date of this rule to June 17, 2021. (86 FR 14807)

II. Discussion

    After consideration and review, DOE has tentatively concluded that 
part 1061 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 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.

[[Page 16115]]

    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 to otherwise meet DOE's 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.
    Therefore, in accordance with Executive Order 13992 and for the 
reasons stated above, DOE proposes to rescind its internal agency 
procedures for issuing guidance documents published at 10 CFR part 
1061.

Public Participation

    DOE will accept comments, data, and information regarding this 
proposed rule on or before the date provided in the DATES section at 
the beginning of this document. Interested parties may submit comments, 
data, and other information using any of the methods described in the 
ADDRESSES section at the beginning of this document.
    Submitting comments via http://www.regulations.gov. The http://www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
General Counsel staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
DOE will use this information to contact you. If DOE cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, DOE may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment itself or in any documents attached to your 
comment. Any information that you do not want to be publicly viewable 
should not be included in your comment, nor in any document attached to 
your comment. Otherwise, persons viewing comments will see only first 
and last names, organization names, correspondence containing comments, 
and any documents submitted with the comments.
    Do not submit to http://www.regulations.gov information the 
disclosure of which is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (CBI)). Comments submitted through 
http://www.regulations.gov cannot be claimed as CBI. Comments received 
through the website will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section below.
    DOE processes submissions made through http://www.regulations.gov 
before posting. Normally, comments will be posted within a few days of 
being submitted. However, if large volumes of comments are being 
processed simultaneously, your comment may not be viewable for up to 
several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your 
comment.
    Submitting comments via email. Comments and documents submitted via 
email will be posted to http://www.regulations.gov. If you do not want 
your personal contact information to be publicly viewable, do not 
include it in your comment or any accompanying documents. Instead, 
provide your contact information in a cover letter. Include your first 
and last names, email address, telephone number, or optional mailing 
address. The cover letter will not be publicly viewable as long as it 
does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are written in English, and that are free of any defects or viruses. 
Documents should not contain special characters or any form of 
encryption and, if possible, they should carry the electronic signature 
of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email two well-marked copies: One copy of the document marked 
``confidential'' including all the information believed to be 
confidential, and one copy of the document marked ``non-confidential'' 
that deletes the information believed to be confidential. Submit these 
documents via email or on a CD, if feasible. DOE will make its own 
determination about the confidential status of the information and will 
treat it according to its determination.
    It is DOE's policy that all comments, including any personal 
information provided in the comments, may be included in the public 
docket, without change and as received, except for information deemed 
to be exempt from public disclosure.

Regulatory Analysis

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

    This proposed rule is not a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735 
(October 4, 1993). As a result, this action was not reviewed by the 
Office of Information and Regulatory Affairs in the Office of 
Management and Budget (OMB). DOE does not anticipate that this 
rulemaking will have an economic impact on regulated entities. This is 
a proposed rule of agency procedure and practice. This proposed rule 
would repeal the regulations governing DOE's internal procedures for 
the promulgation and processing of guidance documents. DOE proposes to 
repeal these internal procedures as part of its implementation of 
Executive Order 13992 and does not anticipate incurring significant 
additional resource costs in doing so.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule

[[Page 16116]]

that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process, 68 FR 7990. The Department 
has made its procedures and policies available on the Office of General 
Counsel's website: http://energy.gov/gc/office-general-counsel.
    This proposed rule would repeal internal agency procedures 
regarding DOE's issuance of guidance documents. DOE notes, however, 
that its procedures for public transparency and involvement in the 
development of agency guidance documents will remain unchanged by the 
withdrawal. 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. 
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. DOE therefore does not anticipate any significant economic impacts 
from today's proposed rule. For these reasons, DOE certifies that this 
rulemaking will not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE did not prepare an IRFA for 
this rulemaking. DOE's certification and supporting statement of 
factual basis will be provided to the Chief Counsel for Advocacy of the 
Small Business Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

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

D. Review Under the National Environmental Policy Act of 1969

    DOE is analyzing this proposed regulation in accordance with the 
National Environmental Policy Act (NEPA) and DOE's NEPA implementing 
regulations (10 CFR part 1021). DOE's regulations include a categorical 
exclusion for rulemakings interpreting or amending an existing rule or 
regulation that does not change the environmental effect of the rule or 
regulation being amended. 10 CFR part 1021, subpart D, Appendix A5. DOE 
anticipates that this rulemaking qualifies for categorical exclusion A5 
because it is a rulemaking that amends a rule and does not change the 
environmental effect of the rule and otherwise meets the requirements 
for application of a categorical exclusion. See 10 CFR 1021.410. DOE 
will complete its NEPA review before issuing the final rule.

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

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

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

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

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

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

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L.

[[Page 16117]]

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

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

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

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

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

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

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
DOE has reviewed this proposed rule under the OMB and DOE guidelines 
and has concluded that it is consistent with applicable policies in 
those guidelines.

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

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

Approval of the Office of the Secretary

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

List of Subjects in 10 CFR Part 1061

    Administrative practice and procedure.

Signing Authority

    This document of the Department of Energy was signed on March 23, 
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 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 23, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-06285 Filed 3-25-21; 8:45 am]
BILLING CODE 6450-01-P