[Federal Register Volume 86, Number 69 (Tuesday, April 13, 2021)]
[Rules and Regulations]
[Pages 19149-19151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07398]


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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Part 1519

RIN 0331-AA04


Guidance Document Procedures Rescission

AGENCY: Council on Environmental Quality.

ACTION: Final rule.

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SUMMARY: On January 8, 2021, the Council on Environmental Quality (CEQ) 
issued a final rule to implement Executive Order (E.O.) 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents.'' In accordance with E.O. 13992, ``Revocation of Certain 
Executive Orders Concerning Federal Regulation,'' this final rule 
rescinds CEQ's rule on guidance document procedures.

DATES: This final rule is effective April 13, 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: E.O. 13891, ``Promoting the Rule of Law 
Through Improved Agency Guidance Documents,'' addressed the 
development, use, and public availability of agency guidance documents 
and required agencies to promulgate or update existing regulations 
setting forth their procedures for issuing guidance documents. 84 FR 
55235 (Oct. 15, 2019). On January 8, 2021, CEQ issued a final rule, 
``Guidance Document Procedures'' to implement E.O. 13891. 86 FR 1279. 
The final rule established 40 CFR part 1519 to establish guidance 
document procedures, procedures for the public to request withdrawal or 
modification of a

[[Page 19150]]

guidance document, and procedures for significant guidance documents.
    On January 20, 2021, President Biden issued E.O. 13992, 
``Revocation of Certain Executive Orders Concerning Federal 
Regulation,'' to revoke a number of Executive orders, including E.O. 
13891, with harmful policies and directives that threaten to frustrate 
the Federal Government's ability to confront the urgent challenges 
facing the Nation, including the coronavirus disease 2019 (COVID-19) 
pandemic, economic recovery, racial justice, and climate change and to 
empower agencies to use appropriate regulatory tools to address these 
issues. 86 FR 7049 (Jan. 25, 2021). E.O. 13992 provides that ``[t]o 
tackle these challenges effectively, [agencies] must be equipped with 
the flexibility to use robust regulatory action to address national 
priorities.'' Section 3 of E.O. 13992 directs agencies to take steps to 
rescind any orders, rules, regulations, guidelines or policies, or 
portions thereof, implementing or enforcing the revoked Executive 
orders.
    After review and consideration, CEQ has concluded that its rule on 
guidance documents deprives CEQ of necessary flexibility in determining 
when and how best to issue guidance based on particular facts and 
circumstances consistent with the policy directive in E.O. 13992. 
Therefore, CEQ is issuing this final rule to rescind its regulations at 
40 CFR part 1519. As has been CEQ's practice predating the part 1519 
regulations, CEQ will continue to make guidance available to the public 
on its websites, including www.nepa.gov and www.sustainability.gov. 
Additionally, in accordance with M-09-13, ``Guidance for Regulatory 
Review,'' \1\ the Office of Management and Budget will continue to 
review all CEQ actions and documents subject to the Office of 
Information and Regulatory Affairs review under E.O. 12866. These 
reviews include policy and guidance documents that OMB determines are 
significant.
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    \1\ https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2009/m09-13.pdf.
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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). CEQ has determined this 
rule is a rule of ``agency organization, procedure, or practice'' and, 
therefore, CEQ is not required to engage in a notice and comment 
rulemaking process. Furthermore, because the rule is a procedural rule, 
rather than a substantive rule, it may be made effective immediately 
upon publication. See 5 U.S.C. 553(d).

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. National Environmental Policy Act

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., (NEPA) requires Federal agencies in their decision-making 
processes to consider the environmental effects of their proposed 
actions, disclose those impacts, and involve the public. The Council on 
Environmental Quality (CEQ) oversees the implementation of NEPA, 42 
U.S.C. 4342, and issued NEPA implementing regulations at 40 CFR parts 
1500 through 1508, which set forth the procedures for agencies to 
comply with NEPA.
    The CEQ regulations provide for three levels of NEPA review. For 
actions that are likely to have significant environmental effects, 
agencies must prepare an environmental impact statement (EIS). See 40 
CFR part 1502. Agencies also can identify in their agency NEPA 
procedures categories of actions that normally do not have significant 
environmental effects, and then apply these categorical exclusions 
(CEs) to individual actions after considering whether there are 
extraordinary circumstances present that preclude the application of 
the CE. See 40 CFR 1501.4. Finally, for those actions that are not 
likely to have significant environmental effects and where the agency 
does not have an established CE, or for actions where the significance 
of the effects is unknown, agencies prepare an environmental assessment 
(EA) to comply with NEPA. See 40 CFR 1501.5. Because CEQ has not 
established CEs for its actions, it has prepared this EA to comply with 
NEPA for this rulemaking.
Purpose and Need
    As set forth in the supplemental information section of this final 
rule, the purpose and need is to take action to comply with E.O. 13992, 
which revoked E.O. 13891 and directed agencies to take steps to rescind 
any regulations implementing the E.O.
Proposed Action and Alternatives
    The proposed action is to revoke 40 CFR part 1519, which CEQ 
promulgated to implement E.O. 13891. The no action alternative is to 
retain part 1519, which sets forth CEQ's procedures for the development 
and issuance of guidance documents consistent with the direction in 
E.O. 13891 and the Office of Management and Budget memorandum M-20-02, 
``Guidance Implementing Executive Order 13891, Titled `Promoting the 
Rule of Law Through Improved Agency Guidance Documents.' '' \2\ These 
procedures define ``guidance document'' and required elements, 
including a title, document identification number, and date. Part 1519 
also requires that all guidance documents contain a legal disclaimer, 
identification of any guidance document it revises or replaces, a 
summary of the guidance subject matter, identification of the 
activities to which and the persons to whom the guidance applies, and 
citations to relevant statutory and regulatory provisions. The 
procedures also require review by CEQ's Office of the General Counsel 
and posting of documents on CEQ's website. Finally, the regulations 
provide a procedure for the public to request withdrawal or 
modification of a guidance document.
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    \2\ https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.
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Environmental Effects
    Both the proposed action and the no action alterative likely would 
result in minimal environmental effects. CEQ issues guidance 
electronically by posting the documents online and emailing it to 
Federal agency contacts; therefore, to the extent this rulemaking would 
have any environmental effects, they would be on energy use by CEQ's IT 
systems. However, this rulemaking neither increases or decreases the 
volume of CEQ's guidance, but rather specifies the content and format 
of certain guidance documents. The proposed action gives CEQ increased 
flexibility in determining when and how best to issue guidance based on 
particular facts and circumstances consistent with the policy directive 
in E.O. 13992. Further, as noted in the final rule, CEQ will continue 
to make

[[Page 19151]]

guidance available to Federal agencies and the public through its 
websites.
    CEQ does not anticipate the proposed action or no action 
alternative would have any impact on threatened or endangered species, 
land or water use, climate change, environmental justice communities, 
cultural resources, including historic properties, or any other 
resource category.
List of Agencies and Persons Consulted
    CEQ consulted with its internal experts, but did not consult with 
other agencies or persons.
Conclusion and Finding
    Based on this environmental assessment, CEQ finds that the proposed 
action will not have a significant effect on the environment.

List of Subjects in 40 CFR Part 1519

    Administrative practice and procedure, Guidance.

Matthew Lee-Ashley,
Chief of Staff.

PART 1519--[REMOVED AND RESERVED]

0
For the reasons stated in the preamble and under the authority of 42 
U.S.C. 4321-4347; 42 U.S.C. 4371-4375; E.O. 13992, the Council on 
Environmental Quality amends subchapter B of chapter V in title 40 of 
the Code of Federal Regulations by removing and reserving part 1519.

[FR Doc. 2021-07398 Filed 4-12-21; 8:45 am]
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