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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 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 DOEs statutory duties.
The March 2021 NOPR stated that part 1061 will in particular hinder DOEs 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 DOEs ability to provide timely guidance on which the public can confidently rely.
Moreover, the March 2021 NOPR
stated that DOEs 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 DOEs 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 DOEs statutory duties, and therefore, DOE is withdrawing part 1061. As stated in the March 2021 NOPR, part 1061 will hinder DOEs ability to address the
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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 DOEs 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 DOEs 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 Guidance@
hq.doe.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 DOEs 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 DOEs Office of 2 The Joint Commenters comments may be found on https www.regulations.gov under docket number DOEHQ2020 with the Comment ID DOE
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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 EEREs 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 EEREs 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
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 DOEs 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 DOEs 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 DOEs statutory duties, and therefore, DOE is withdrawing part 1061. Addressing the challenges enumerated in Executive Order 13992, particularly the economic recovery and
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