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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations
regarding existing statutory and regulatory requirements. Moreover, this final rule requires that DOE guidance documents be written clearly and refrain from using mandatory language, such as the terms shall or must. If a guidance document purports to describe, approve, or recommend specific conduct that is beyond what is required by existing statute or legislative rule, this final rule requires that the document include a clear and prominent statement that the guidance document will not be used as an independent basis for enforcement, that conformity with the guidance document is strictly voluntary, and that nonconformity will not affect the rights and obligations of regulated parties.
This final rule also requires that all DOE guidance documents be reviewed and cleared by the Departments Office of the General Counsel. Additionally, this final rule requires that significant guidance documents be signed by the Secretary or a component agency head appointed by the President. This will ensure that the requirements and intent of Executive Order 13891 are met, and that guidance documents are issued in accordance with relevant laws and regulations.
This final rule also codifies procedures for providing notice in the Federal Register concerning significant guidance documents, soliciting public comments on such guidance documents, and responding to such comments. DOE
notes that the agency generally provides notice and solicits comments on significant guidance documents.
Therefore, this final rule codifies agency procedures that are already in use for significant guidance documents. This final rule also provides procedures for the public to petition the agency to modify or withdraw guidance documents. DOE notes that the procedures in this final rule for petitions to modify or withdraw guidance documents are similar to the procedures that DOE uses for petitions for rulemaking.

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II. Summary of Comments and DOE
Responses On July 1, 2020, DOE published a notice of proposed rulemaking NOPR
in which DOE proposed new part 1061
to implement the requirements of Executive Order 13891. 85 FR 39495 In the NOPR, DOE also granted in part, and denied in part, 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
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defending improper agency guidance.3
DOE received four comments on the NOPR, which are summarized below along with DOEs responses. Based on comments, DOE is making changes between the proposed rule and this final rule, as described in DOEs responses below.
Comments of NCLA
NCLAs comments 4 responded specifically to a portion of NCLAs petition for rulemaking that DOE
declined to include in the NOPR:
Procedures addressing finality and judicial review of agency guidance.
NCLA stated that DOE should further clarify part 1061 to express the availability of judicial review after final disposition of a petition for the withdrawal or modification of guidance documents under the procedures of 1061.4. NCLA at 3 NCLA disagreed with DOEs statement in the NOPR that courts have the authority, and are best positioned, to determine what agency actions are reviewable by a court under the APA or other relevant laws and regulations and that the provisions concerning finality or judicial review sought by NCLA would not be as useful to regulated parties as the provisions DOE proposed in the NOPR, because the provisions in the proposed rule should eliminate, or lessen, the perceived need for judicial review in a significant range of circumstances by further confirming that guidance documents do not bind regulated parties. NCLA at 3; see also 85 FR 39497 NCLA stated that the judiciary has historically lacked the ability to review improper agency guidance because, in part, the APA
typically permits review only of final agency action, and the failure to achieve finality under the APA has resulted in courts being unable to consider the coercive effects of guidance documents.
NCLA further stated that when an agencys guidance review process falls short, clear procedures identifying when an agency action is final and what review is available allow an interested party to seek meaningful redress from the courts. NCLA at 3
NCLA further stated that, as proposed, 1061.4 contemplates the finality of DOEs action on a petition and suggests that judicial review under the APA may be available, but it does not provide a 3 See 84 FR 50791 Sept. 26, 2019. NCLAs petition, the notice soliciting comment, and comments received on the petition may be found on http www.regulations.gov under docket number DOEHQ20200002, document number 201920540.
4 NCLAs comments may be found on http
www.regulations.gov under docket number DOE
HQ20200002 with the Comment ID DOEHQ
202000330004.

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specific recourse for a petitioner who disagrees with the agencys disposition of a petition. NCLA concluded that 1061.4 should include an explicit provision stating that if a person exhausts his or her administrative remedies in accordance with paragraph g of 1061.4, then the disposition of the petition submitted in accordance with 1061.4 shall constitute final agency action under the APA and shall be subject to review under the judicial review provisions of the APA. NCLA at 4
DOE Response In response, DOE emphasizes that the final rule requires DOE guidance documents to explicitly state that they are non-binding and do not have the force and effect of law, and prohibits DOE from relying on guidance documents as an independent basis for enforcement. Enforcement actions must be based on the underlying statutory or regulatory requirements. The requirements of this final rule make clear that no binding legal obligations or consequences flow from DOE guidance documents, and that compliance with a guidance document is voluntary. With respect to petitions for modification or withdrawal of DOE guidance documents, DOE declines to make the changes sought by NCLA. This final rule makes clear that a petitioner must avail himself or herself of the procedures in 1061.4. After those procedures have been exhausted and the petitioner receives a final disposition of the petition, DOEs consideration of the petition is complete, and DOE will take no further action on the petition. As in the proposed rule, DOE notes that courts are responsible for determining whether judicial review is available under the APA for a particular agency action, including DOEs disposition of a petition under 1061.4. Courts are in the best position to determine if an agency action is final and ripe for review, and whether legal consequences actually flow from said action, and therefore, DOE declines to include a provision stating when judicial review of a guidance document or a petition to modify or withdraw guidance document would be available. In addition, DOE
notes that this final rule should eliminate, or lessen, the perceived need for judicial review in a significant range of circumstances by further confirming that guidance documents do not bind regulated parties. Accordingly, DOE
declines to incorporate NCLAs suggested changes into this final rule.

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