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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations
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 12; Clinic at 28
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 810 Regarding DOEs 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 3 FreedomWorks
comments may be found on https www.regulations.gov under docket number DOEHQ2020 with the Comment ID DOEHQ
202000330013. The Clinics comments may be found on https www.regulations.gov under docket number DOEHQ2020 with the Comment ID DOE
HQ202000330014.

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circumstances and restricts DOEs ability to provide timely guidance, and stated that in DOEs issuance of part 1061 the Department concluded that part 1061 allows DOE sufficient flexibility to efficiently address shortterm or urgent challenges. The Clinic at 1011 FreedomWorks stated that DOE
asserts that transparency and public input will hinder DOEs regulatory output but that this assertion does not support withdrawal of part 1061, because the APAs 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 DOEs withdrawal of part 1061.
FreedomWorks at 23; 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 Guidance@hq.doe.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
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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 DOEs issuance of important guidance documents that inform the public of important issues in DOEs 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. 1172, 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 4 ASAPs comments may be found on https
www.regulations.gov under docket number DOE
HQ2020 with the Comment ID DOEHQ2020
00330015.
5 The individual member of the publics comment may be found on https www.regulations.gov under docket number DOEHQ2020 with the Comment ID DOEHQ202000330012.

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