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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations PART 220REMOVED
Accordingly, for the reasons stated in the preamble and under the authority of 5 U.S.C. 301, the Corps removes 33 CFR
part 220.

R.D. James, Assistant Secretary of the Army Civil Works.
FR Doc. 202027908 Filed 1721; 8:45 am BILLING CODE 372058P

COUNCIL ON ENVIRONMENTAL
QUALITY

RIN 0331AA04

Guidance Document Procedures Council on Environmental Quality.
ACTION: Final rule.
AGENCY:

Pursuant to Executive Order E.O. 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, this final rule establishes the process that the Council on Environmental Quality CEQ will follow for issuing guidance documents.
E.O. 13891 requires Federal agencies to finalize regulations or amend existing regulations to establish processes and procedures for issuing guidance documents.
DATES: This rule is effective January 8, 2021.
FOR FURTHER INFORMATION CONTACT:
Amy B. Coyle, Deputy General Counsel, Council on Environmental Quality, 730
Jackson Place NW, Washington, DC
20503, 202 3955750, amy.b.coyle@
ceq.eop.gov.
SUPPLEMENTARY INFORMATION:
On October 9, 2019, President Trump issued E.O. 13891,1 which addresses the development, use, and public availability of agency guidance documents. It requires agencies to promulgate or update existing regulations setting forth their procedures for issuing guidance documents. In accordance with section 6 of E.O. 13891, on October 31, 2019, the Office of Management and Budget OMB issued memorandum M2002, Guidance Implementing Executive Order 13891, Titled Promoting the Rule of Law Through Improved Agency Guidance Documents OMB M20
02 2 to provide guidance and implement the Executive order. OMB

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SUMMARY:

84 FR 55235 Oct. 15, 2019.
M2002 is available at https
www.whitehouse.gov/wp-content/uploads/2019/10/
M-20-02-Guidance-Memo.pdf.
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I. Summary of Final Rule In this final rule, CEQ adds a new part 1519 to the Code of Federal Regulations to set out its procedures for the development and issuance of guidance documents consistent with the direction and reflecting the policies described in E.O. 13891 and OMB M2002.
A. Section 1519.1, Purpose Section 1519.1, Purpose, states that the purpose of part 1519 is to implement E.O. 13891, and explains CEQs process for developing and issuing guidance.

40 CFR Part 1519

1

M2002 provides agencies with additional instruction on how to implement E.O. 13891, including the required rulemaking.

B. Section 1519.2, Guidance Document Procedures Section 1519.2, Guidance document procedures, defines guidance documents in paragraph a and describes documents that do not meet that definition in paragraph b, consistent with section 2b 3 of the E.O.
and Q2 of OMB M2002.
Paragraph c of 1519.2 lists the minimum requirements for any document meeting the definition of a guidance document consistent with Q22
of OMB M2002, including a title, unique identification number, date, indication of whether it revises or replaces prior guidance, summaries, and legal citations. Additionally, consistent with section 4i of E.O. 13891, paragraph c6 includes a requirement that each guidance document clearly state that it does not bind the public, except as authorized by law or as incorporated into a contract.
Paragraph c11 of 1519.2 specifies that any guidance document must be posted on CEQs website. E.O. 13891
also directed Federal agencies to make guidance documents publicly available in an indexed, searchable database online. As described in the Federal Register notice published today, CEQ
has complied with this requirement through its website whitehouse.gov/ceq/
resources.4 As noted on this website, CEQ may not cite, use, or rely on any guidance that is not posted on its web pages except to establish historical facts.
CEQ also makes clear that CEQs guidance documents lack the force and effect of law, unless expressly 3 E.O. 13891 section 2b lists the following as exclusions to the definition of guidance document.
84 FR at 5523536.
4 CEQs website, whitehouse.gov/ceq/resources, includes links to CEQ guidance documents and resources, some of which are provided on nepa.gov and sustainability.gov.

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authorized by statute or incorporated into a contract.
Finally, paragraph d of 1519.2
requires the CEQ Office of the General Counsel to review and clear all guidance documents before CEQ issues them.
C. Section 1519.3, Procedures for the Public To Request Withdrawal or Modification of a Guidance Document Consistent with section 4ii of E.O.
13891, 1519.3, Procedures for the public to request withdrawal or modification of a guidance document, addresses the process for members of the public to petition CEQ to withdraw or modify a particular guidance document, including designation of the Office of the General Counsel as the office within CEQ to which the public should direct such petitions. CEQ
intends to provide additional instructions on its guidance website, including appropriate contact information and format of the petitions.
D. Section 1519.4, Significant Guidance Documents Finally, 1519.4, Significant guidance documents, addresses specific requirements for a subset of guidance documents that are significant guidance documents as defined by section 2c of E.O. 13891.
Paragraph a sets forth that definition.
OMBs Office of Information and Regulatory Affairs OIRA makes the final determination of whether a guidance document is significant. If OIRA makes such a determination for a particular guidance document, this section will also apply. Consistent with section 4iii of E.O. 13891, paragraph b sets forth procedural requirements, including public notice and comment for at least 30 days, unless an exception applies; public response to major concerns raised in comments; approval on a non-delegable basis by the Chairman, or an official acting as Chairman; review by OIRA under Executive Order 12866; and compliance with the applicable requirements for regulations or rules.
II. 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. 553bA. This rule describes the internal process that CEQ will follow to comply with the requirements specified in E.O. 13891 when issuing guidance documents as defined by the
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