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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations
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Comments of MHARR
The Manufactured Housing Association for Regulatory Reform MHARR provided comments 5 in support of NCLAs petition for rulemaking and DOEs proposed rule, except to the extent that the proposed rule omitted procedural and substantive protections set forth in NCLAs petition for rulemaking, particularly procedures to ensure that DOE comply with the Congressional Review Act CRA. 5
U.S.C. 801808 MHARR stated that it supports the adoption of all elements of NCLAs petition, including specific CRA
compliance procedures. MHARR at 2
MHARR stated that it has observed agencies, including DOE, abuse the guidance document process to impose de facto regulatory mandates and associated burdens. MHARR continued that such guidance documents impose significant cost burdens on regulated parties, including MHARR members, without affording interested parties opportunity to comment or to challenge such guidance in court. MHARR at 3
MHARR further stated that, as set forth in Executive Order 13891, the imposition of new obligations through guidance documents is against statutory law, as well as the Constitution, and therefore, the proposed regulatory language offered in NCLAs petition for rulemaking should be included in this final rule. Additionally, MHARR stated that, in particular, the CRA compliance provisions offered in NCLAs petition should be included in the final rule because the CRA encompasses guidance documents, and MHARR disagreed with DOEs assertion in the NOPR that DOEs internal procedure adequately govern DOEs compliance with the CRA
because DOE and other agencies have undertaken covered actions on an ongoing basis without full compliance with the CRA and its substantive requirements. MHARR at 3

Executive Order 13891. With respect to MHARRs comments on the proposed CRA compliance provisions in NCLAs petition, DOE declines to include such provisions in the final rule. As DOE
stated in the NOPR, current DOE and Executive Branch procedures ensure compliance with the CRA. MHARR
stated that DOE has issued actions covered by the CRA without fully complying with the CRA; however, MHARR did not provide any specific examples of such non-compliant actions. Moreover, the CRA compliance procedures in NCLAs petition mirror those that are already required of Executive Branch agencies by OMB M
1914, Guidance on Compliance with the Congressional Review Act Apr. 11, 2019, which NCLA cited in its petition.
See 84 FR 5079, 50797 Sept. 26, 2019
Accordingly, the CRA compliance procedures proffered by NCLA, and supported by MHARR, are already in place in Executive Branch policy.
Additionally, this final rule requires DOE to consult with, and receive a determination from, OIRA on the significance of DOE guidance documents. Therefore, OIRA will have the opportunity to determine independently whether a guidance document is a major rule for purposes of the CRA, consistent with 5 U.S.C.
8042, or otherwise must be submitted under the CRAs procedures.
Comments of AHRI

DOE Response Consistent with MHARRs comments, the final rule establishes procedures to ensure that the agencys process for the issuance and modification of guidance documents is transparent and accessible to the public, including by allowing public comment on significant guidance documents. The final rule also assures regulated parties that such guidance is not legally binding, and does not affect the rights and obligations of regulated parties. The final rule implements, and is consistent with, the requirements of
The Air-Conditioning, Heating, and Refrigeration Institute AHRI 6
submitted comments in support of DOEs plan to issue procedures on the issuance of guidance documents in accordance with Executive Order 13891.
AHRI stated that its experience working with DOEs Office of Energy Efficiency and Renewable Energy EERE has consistently demonstrated alignment with the spirit of Executive Order 13891, that AHRI has found DOEs guidance documents to be useful and helpful, and that DOE guidance has, on occasion, been particularly useful in quickly resolving questions that arise in the implementation of regulations.
AHRI at 1 AHRI encouraged DOE to establish procedures that enable efficient solutions to short-term challenges. AHRI further stated that it appreciates EEREs efforts to make all guidance documents readily accessible on its website, and that the establishment of a single web portal on DOEs website makes it even easier now
5 MHARRs comments may be found on http
www.regulations.gov under docket number DOE
HQ20200002 with the Comment ID DOEHQ
202000330002.

6 AHRIs comments may be found on http
www.regulations.gov under docket number DOE
HQ20200002 with the Comment ID DOEHQ
202000330005.

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for the public to locate DOEs guidance documents. AHRI at 1
DOE Response Consistent with the AHRIs comments, the final rule establishes procedures consistent with Executive Order 13891 to ensure that the agencys process for the issuance and modification of guidance documents is transparent and accessible to the public, including through DOEs guidance web portal. The procedures in the final rule ensure that DOE guidance documents are readily accessible to the public online. With respect to AHRIs comments encouraging DOE to establish procedures that enable efficient solutions to short-term challenges, DOE
believes that the procedures in the final rule are sufficient to meet such challenges. DOE acting in conjunction with the Administrator of OMBs Office of Information and Regulatory Affairs pursuant to section 4aiii of Executive Order 13891 may dispense with the notice and comment procedures of the final rule in exigent circumstances or emergencies. DOE may likewise do so when DOE finds for good cause consistent with section 4aiiiA of Executive Order 13891 that notice and public comment for a significant guidance document are impracticable, unnecessary, or contrary to the public interest. Moreover, non-significant guidance documents need not be subject to public notice and comment.
Accordingly, DOE made no changes to the final rule based on AHRIs comments, because the procedures in the final rule allow DOE sufficient flexibility to efficiently address shortterm or urgent challenges.
Comments of Goodman Goodman Manufacturing Company, L.P. Goodman 7 submitted comments in support of DOEs proposal to establish procedures for the issuance of DOE guidance documents in accordance with Executive Order 13891. In its comments, Goodman proposed some revisions to the provisions in the NOPR, so that the prescribed provisions in the proposed new 10 CFR part 1061 do not unduly impact well-established existing guidance documents that the HVAC
industry has relied upon for several years. Goodman stated that it was concerned that the rescission of such existing guidance documents would cause uncertainty among regulated HVAC manufacturers. Goodman at 2
7 AHRIs comments may be found on http
www.regulations.gov under docket number DOE
HQ20200002 with the Comment ID DOEHQ
202000330006.

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