[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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