[Federal Register Volume 86, Number 106 (Friday, June 4, 2021)]
[Rules and Regulations]
[Pages 29932-29937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11753]
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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: Final rule; withdrawal.
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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 final rule, the Department of Energy (DOE or ``the Department'')
withdraws the Department's final rule on guidance implementing the
Executive Order ``Promoting the Rule of Law Through Improved Agency
Guidance Documents.''
DATES: As of June 4, 2021, the final rule published January 6, 2021 at
86 FR 451, effective February 5, 2021, delayed February 2, 2021, until
March 21, 2021, at 86 FR 7799, and delayed March 19, 2021, until June
17, 2021, at 86 FR 14807, is withdrawn.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at https://www.regulations.gov. All documents
in the docket are listed in the https://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 https://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 https://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].gov.
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.
[[Page 29933]]
Previously, DOE postponed the effective date of part 1061 until
March 21, 2021. (86 FR 7799) 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 further extended the
effective date to June 17, 2021. (86 FR 14807)
On March 26, 2021, DOE published a NOPR in which DOE proposed to
withdraw part 1061 (``March 2021 NOPR''). (86 FR 16114) In the March
2021 NOPR DOE tentatively concluded that part 1061 will hinder DOE in
providing timely guidance in furtherance of DOE's statutory duties. The
March 2021 NOPR stated that part 1061 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 (``APA'') (5 U.S.C. 551 et seq.), and they
limit the regulatory tools available to DOE to address the challenges
such as those listed in Executive Order 13992. DOE concluded that 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.
Moreover, the March 2021 NOPR stated that 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 noted,
however, that its procedures for public transparency and involvement in
the development of agency guidance documents will remain unchanged by
withdrawal of part 1061. More specifically, DOE guidance documents will
continue to be available on DOE's website and DOE will also continue
its practice, as appropriate, of soliciting stakeholder input on
guidance documents of significant stakeholder and public interest.
II. Discussion
After consideration and review, DOE has concluded that part 1061
will hinder DOE in providing timely guidance in furtherance of DOE's
statutory duties, and therefore, DOE is withdrawing part 1061. As
stated in the March 2021 NOPR, part 1061 will hinder DOE's ability to
address the economic recovery and climate change challenges enumerated
in Executive Order 13992, and other important issues. 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.
As stated in the March 2021 NOPR, DOE intends to continue its
practices for public transparency and involvement in the development of
agency guidance documents despite 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].gov. The benefits of binding DOE to the procedures of
part 1061 therefore are outweighed by the need for DOE to have the
ability to issue guidance timely and effectively to address challenges
including those 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.
Summary of Comments and DOE Responses
DOE received five comments on the March 2021 NOPR proposal to
withdraw part 1061. These comments and DOE's responses are summarized
in the following section.
Joint Comments of AHRI, AHAM, and NEMA
DOE received comments jointly submitted by the Air-Conditioning,
Heating, & Refrigeration Institute (AHRI), Association of Home
Appliance Manufacturers (AHAM), and the National Electrical
Manufacturers Association (NEMA) (collectively, the ``Joint
Commenters'').\2\ The Joint Commenters noted their experience with DOE
guidance documents, specifically through DOE's Office of Energy
Efficiency and Renewable Energy (EERE), and that EERE has consistently
demonstrated an interest in making guidance documents easy to locate
and available to the public. The Joint Commenters stated that EERE's
guidance on energy conservation standards and test procedures has
proven to be helpful and assisted in resolving complications or
confusion that arises on an urgent basis, and that the Joint Commenters
appreciated EERE's efforts to make all guidance readily accessible on
an EERE web portal and to seek guidance from the public on draft
guidance prior to issuing final guidance. (Joint Commenters at 1)
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\2\ The Joint Commenters' comments may be found on https://www.regulations.gov under docket number DOE-HQ-2020 with the Comment
ID DOE-HQ-2020-0033-0012.
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The Joint Commenters questioned the value in withdrawing part 1061,
and further stated that transparency and public participation are, and
should remain, important tenets of good government. The Joint
Commenters stated that they recognize that it is likely the Department
will withdraw part 1061 per Executive Order 13992, and that, if that is
the case, the Joint Commenters expect that DOE, and particularly EERE,
will continue to follow the good guidance practices it has historically
followed. Specifically, the Joint Commenters expect that EERE will
continue to seek input before issuing final guidance and make its
guidance documents available to the public in a central location (the
EERE web page) in a searchable format. The Joint Commenters appreciated
that DOE's proposal to withdraw part 1061 indicates that DOE will
continue to make guidance documents available on its website and will
continue the practice of soliciting input on guidance documents of
significant public interest, and that DOE recognizes that stakeholders
may still petition DOE at any time to issue, withdraw, or revise DOE
guidance documents. The Joint Commenters concluded by strongly urging
the Department to continue to ensure that guidance is transparent and
easily accessible and that all interested parties can participate in
its development. (Joint Commenters at 2)
DOE Response
DOE appreciates the comments in support of DOE's transparency and
public participation practices with respect to guidance documents,
particularly with EERE guidance documents. As noted above, DOE has
concluded that part 1061 will hinder DOE in providing timely guidance
in furtherance of DOE's statutory duties, and therefore, DOE is
withdrawing part 1061. Addressing the challenges enumerated in
Executive Order 13992, particularly the economic recovery and
[[Page 29934]]
climate challenges, requires that agencies be able to use all available
authorities and resources at their disposal, and that agencies retain
maximum flexibility to act quickly when necessary. Part 1061 does not
afford DOE the maximum flexibility needed to address these challenges.
As noted above, DOE will continue its normal transparency and public
participation practices with respect to guidance documents to which the
Joint Commenters refer. However, DOE needs the flexibility to deviate
from those practices when necessary, and part 1061 would hinder any
such deviation.
Comments of FreedomWorks Foundation and the Administrative Law Clinic
at the Antonin Scalia Law School
DOE received comments opposing the withdrawal of part 1061 from the
Regulatory Action Center at FreedomWorks Foundation (``FreedomWorks'')
and the Administrative Law Clinic at the Antonin Scalia Law School
(``the Clinic'').\3\ Both FreedomWorks and the Clinic noted general
issues with agencies' use of guidance documents, particularly that
guidance documents often have the effect of binding regulated entities,
and that the lack of transparency and availability to the public of
agency guidance documents means that many stakeholders are unaware of
agency guidance and its effects, especially when agencies change
policies through guidance documents. Both commenters also expressed
concerns that agencies do not base decisions made in guidance documents
on all potentially available information without soliciting public
input. (FreedomWorks at 1-2; Clinic at 2-8)
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\3\ FreedomWorks' comments may be found on https://www.regulations.gov under docket number DOE-HQ-2020 with the Comment
ID DOE-HQ-2020-0033-0013. The Clinic's comments may be found on
https://www.regulations.gov under docket number DOE-HQ-2020 with the
Comment ID DOE-HQ-2020-0033-0014.
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Both commenters stated that Executive Order 13891 aimed to provide
more open and fair regulatory processes by requiring agencies to
improve their use of guidance documents and provide more transparency
in issuing guidance documents. The Clinic further stated that part 1061
addressed the abuse of guidance documents and formalized best
practices. (FreedomWorks at 1; the Clinic at 8-10) Regarding DOE's
proposed withdrawal of part 1061, the Clinic stated that DOE failed to
explain why DOE believes part 1061 will deprive 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, and stated that in DOE's issuance of part 1061 the Department
concluded that part 1061 allows DOE sufficient flexibility to
efficiently address short-term or urgent challenges. (The Clinic at 10-
11) FreedomWorks stated that DOE asserts that transparency and public
input will hinder DOE's regulatory output but that this assertion does
not support withdrawal of part 1061, because the APA's requirements for
notice and comment are intended to make it difficult for agencies to
adopt and impose regulations, and though excepted from those
requirements, guidance documents often function as rules and are viewed
as binding on the public. (FreedomWorks at 2)
The Clinic further stated that it would be inappropriate to enact
major, controversial policies through guidance documents, particularly
for controversial issues like economic recovery and climate change.
(The Clinic at 11) Both commenters expressed that there is no
substitute for providing meaningful opportunity for public comment,
especially to the extent guidance may be binding. Both commenters
concluded by opposing DOE's withdrawal of part 1061. (FreedomWorks at
2-3; the Clinic at 11-12)
DOE Response
As noted above, DOE is obligated to follow the requirements of the
APA. Accordingly, DOE will provide notice and opportunity for comment
on actions where required by the APA. And, as noted in the March 2021
NOPR, DOE will continue its practice of soliciting input from
stakeholders and the public on guidance documents, where appropriate,
even though such input is not required by the APA. DOE reiterates that
guidance documents are not binding. DOE will continue to make relevant
guidance documents available to the public on its website.
Additionally, any member of the public may submit questions, comments,
or petitions regarding guidance documents to the [email protected].gov
inbox. DOE notes that Executive Order 13891, the underlying basis for
part 1061 and its requirements, has been revoked.
Moreover, part 1061, in accordance with Executive Order 13891, only
required notice and opportunity for comment on significant guidance
documents, as that term was defined in Executive Order 13891 and part
1061. DOE also notes that, while part 1061 offered DOE some flexibility
to issue guidance documents quickly in urgent situations without
adhering to the procedures of part 1061, under those procedures, DOE
would still have been required to conduct certain internal review
procedures and to communicate with the Office of Information and
Regulatory Affairs regarding the significance of any guidance document
and the issuance of a guidance document in urgent circumstances. These
requirements could result in unnecessary or harmful delay in DOE's
issuance of important guidance documents that inform the public of
important issues in DOE's actions to address the challenges enumerated
in Executive Order 13992.
Agencies must be able to use available authorities and resources in
order to address these and other challenges. The APA normally does not
require notice and comment for guidance, which agencies may use to
expediently inform the public as agencies work to address significant
and sometimes fast-moving challenges. For example, it may be necessary
for agencies to quickly issue guidance documents to inform the public
of how an agency is implementing recently passed laws targeting the
challenges facing the nation, such as the American Rescue Plan Act of
2021. (Pub. L. 117-2, March 11, 2021) DOE has concluded that the
benefit of increased transparency and public input on certain guidance
documents provided by part 1061 is outweighed by the need for maximum
flexibility to be able to issue guidance documents expediently to
insure the public is informed about actions DOE is taking to address
the challenges facing the nation, particularly the economic recovery
and climate challenges. Part 1061 hinders DOE in having such maximum
flexibility in that it could require DOE to delay issuance of final
guidance documents that may be best issued quickly to inform the public
of DOE actions in order to address the challenges facing the nation.
Comments of ASAP and Others
DOE received comments from the Appliance Standards Awareness
Project (``ASAP'') in support of the proposed withdrawal of part
1061.\4\ DOE also received a comment from an individual member of the
public in support of the proposed withdrawal of part 1061.\5\ ASAP
agreed with DOE that part 1061 deprives DOE of necessary flexibility to
[[Page 29935]]
clarify policies that address climate change and other pressing
challenges in a timely manner, and thus, consistent with the policy
directive in President Biden's Executive Order 13992, it should be
withdrawn. (ASAP at 2) ASAP stated that guidance documents serve a
critical role in administrative practice separate from notice-and-
comment rulemaking and that requiring guidance documents to go through
the same processes as rulemaking would upset the careful balance the
APA created. ASAP further stated that while the longer process
associated with notice and comment may be appropriate in some
instances, agencies should retain discretion to determine whether such
diversion of resources to notice-and-comment procedures is necessary
for non-binding guidance that will not have the force of law, and that
flexibility is required to enable agencies to nimbly address evolving
issues. (ASAP at 3-4)
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\4\ ASAP's comments may be found on https://www.regulations.gov
under docket number DOE-HQ-2020 with the Comment ID DOE-HQ-2020-
0033-0015.
\5\ The individual member of the public's comment may be found
on https://www.regulations.gov under docket number DOE-HQ-2020 with
the Comment ID DOE-HQ-2020-0033-0012.
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ASAP stated that the appropriate use of guidance documents provides
clarification around issues such as product efficiency testing that
benefits both regulated entities and consumers. ASAP listed several
examples of instances in which complex DOE rulemaking necessarily
leaves gaps that are not always apparent until they are implemented,
and that guidance is an essential tool to fill those gaps and ensure a
transparent, level playing field and meaningful efficiency information
for consumers. (ASAP at 6-7) ASAP stated that these benefits need not
come at the cost of transparency. ASAP also noted DOE's intention to
continue its transparency and public input practices with respect to
guidance documents and encouraged DOE to explore additional procedures
to amplify these efforts, noting that such practice need not be
enshrined in a rule, and would be better left to agency discretion.
(ASAP at 7)
ASAP further stated that adding procedural hurdles to the use of
guidance documents not only undermines those benefits, but also, as
multiple studies demonstrate, imposes additional costs on agencies'
time and resources, making the use of guidance less likely. ASAP noted
that adding procedural hurdles to DOE's ability to issue guidance would
incentivize more informal means of setting policy, such as internal
memoranda and word-of-mouth instruction to enforcement personnel, which
would be considerably less transparent or useful to the public than
guidance. (ASAP at 8) ASAP also stated that similar procedural mandates
regarding guidance documents at other agencies have proven ineffective
and resulted in confusion for regulated entities. ASAP also stated the
underlying bases for part 1061 are flawed, particularly that the
petition for rulemaking from the New Civil Liberties Alliance that DOE
responded to rested on inaccurate premises. (ASAP at 9) ASAP also
stated that the proposed withdrawal of part 1061 would further the
goals of Executive Order 13992 and would be consistent with other
agencies' withdrawals of such rules. ASAP concluded by stating that,
while DOE's position does constitute a reversal, it is an appropriate
one because the prior rule has not yet been put in effect, and no
entity could reasonably claim a reliance interest in its contents.
Moreover, ASAP stated that the policy set forth in DOE's March 2021
NOPR is not merely a reflection of a new executive policy, but rather a
return to the basic structure of the APA itself, and that structure
reflects a sound policy judgment supported by experience and research.
(ASAP at 11-12)
DOE Response
DOE appreciates the comments in support of the proposed withdrawal
and agrees with the comments. As noted above, Executive Order 13992
listed several significant challenges currently facing the nation.
Agencies must be able to use available authorities and resources in
order to address these challenges, and are not generally required to
engage in the notice-and-comment process for guidance. DOE has
concluded that the benefit of increased transparency and public input
on certain guidance documents provided by part 1061 is outweighed by
the need for maximum flexibility to be able to issue guidance documents
expediently to insure the public is informed about actions DOE is
taking to address the challenges facing the nation, particularly the
economic recovery and climate challenges. Part 1061 hinders DOE in
having such maximum flexibility in that it could require DOE to delay
issuance of final guidance documents that may be best issued quickly to
inform the public of DOE actions in order to address the challenges
facing the nation.
Therefore, in accordance with Executive Order 13992 and for the
reasons stated above, DOE withdraws its internal agency procedures for
issuing guidance documents published at 10 CFR part 1061.
Regulatory Analysis
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
This final 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 rule of agency procedure and practice. This rule withdraws the
regulations governing DOE's internal procedures for the promulgation
and processing of guidance documents. DOE is repealing these internal
procedures as part of its implementation of Executive Order 13992 and
for the reasons cited previously, 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 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: https://energy.gov/gc/office-general-counsel.
This rule withdraws 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
[[Page 29936]]
about DOE guidance documents, by emailing petitions or inquiries to
[email protected].gov. The benefits of binding DOE to the procedures of
part 1061 therefore are 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 this final 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 a regulatory flexibility act analysis
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 rule imposes 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
Pursuant to the National Environment Policy Acy of 1969 (NEPA), DOE
has analyzed this action in accordance with NEPA and DOE's NEPA
implementing regulations (10 CFR part 1021). DOE has determined that
this rule qualifies for a categorical exclusion under 10 CFR part 1021,
subpart D, appendix A5 because it amends an existing rule that does not
change the environmental effect of the rule and meets the requirements
for application of the categorical exclusion. See 10 CFR 1021.410.
Therefore, DOE has determined that the promulgation of this rule is not
a major Federal action significantly affecting the quality of the human
environment within the meaning of NEPA, and does not require an EA or
EIS.
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 rule
and determined that it does 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 rule has been analyzed in accordance
with the principles and criteria contained in Executive Order 13175.
Because this rule does 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 rule meets 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. 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 https://energy.gov/gc/office-general-counsel). This
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
[[Page 29937]]
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 rule does 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 rule does 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 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. The rule
withdraws 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 final
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 May 27,
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 June 1, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
0
Accordingly, the final rule adding 10 CFR part 1061, published in the
Federal Register on January 6, 2021 (86 FR 45), is withdrawn.
[FR Doc. 2021-11753 Filed 6-3-21; 8:45 am]
BILLING CODE 6450-01-P