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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations clarify policies that address climate change and other pressing challenges in a timely manner, and thus, consistent with the policy directive in President Bidens Executive Order 13992, it should be withdrawn. ASAP at 2
ASAP stated that guidance documents serve a critical role in administrative practice separate from notice-andcomment rulemaking and that requiring guidance documents to go through the same processes as rulemaking would upset the careful balance the APA
created. ASAP further stated that while the longer process associated with notice and comment may be appropriate in some instances, agencies should retain discretion to determine whether such diversion of resources to noticeand-comment procedures is necessary for non-binding guidance that will not have the force of law, and that flexibility is required to enable agencies to nimbly address evolving issues. ASAP at 34
ASAP stated that the appropriate use of guidance documents provides clarification around issues such as product efficiency testing that benefits both regulated entities and consumers.
ASAP listed several examples of instances in which complex DOE
rulemaking necessarily leaves gaps that are not always apparent until they are implemented, and that guidance is an essential tool to fill those gaps and ensure a transparent, level playing field and meaningful efficiency information for consumers. ASAP at 67 ASAP
stated that these benefits need not come at the cost of transparency. ASAP also noted DOEs intention to continue its transparency and public input practices with respect to guidance documents and encouraged DOE to explore additional procedures to amplify these efforts, noting that such practice need not be enshrined in a rule, and would be better left to agency discretion. ASAP at 7
ASAP further stated that adding procedural hurdles to the use of guidance documents not only undermines those benefits, but also, as multiple studies demonstrate, imposes additional costs on agencies time and resources, making the use of guidance less likely. ASAP noted that adding procedural hurdles to DOEs ability to issue guidance would incentivize more informal means of setting policy, such as internal memoranda and word-ofmouth instruction to enforcement personnel, which would be considerably less transparent or useful to the public than guidance. ASAP at 8 ASAP also stated that similar procedural mandates regarding guidance documents at other agencies have proven ineffective and resulted in confusion for regulated entities. ASAP

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also stated the underlying bases for part 1061 are flawed, particularly that the petition for rulemaking from the New Civil Liberties Alliance that DOE
responded to rested on inaccurate premises. ASAP at 9 ASAP also stated that the proposed withdrawal of part 1061 would further the goals of Executive Order 13992 and would be consistent with other agencies withdrawals of such rules. ASAP
concluded by stating that, while DOEs position does constitute a reversal, it is an appropriate one because the prior rule has not yet been put in effect, and no entity could reasonably claim a reliance interest in its contents.
Moreover, ASAP stated that the policy set forth in DOEs March 2021 NOPR is not merely a reflection of a new executive policy, but rather a return to the basic structure of the APA itself, and that structure reflects a sound policy judgment supported by experience and research. ASAP at 1112
DOE Response DOE appreciates the comments in support of the proposed withdrawal and agrees with the comments. As noted above, Executive Order 13992 listed several significant challenges currently facing the nation. Agencies must be able to use available authorities and resources in order to address these challenges, and are not generally required to engage in the notice-andcomment process for guidance. 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.
Therefore, in accordance with Executive Order 13992 and for the reasons stated above, DOE withdraws its internal agency procedures for issuing guidance documents published at 10
CFR part 1061.

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Regulatory Analysis A. Review Under Executive Order 12866, Regulatory Planning and Review This final rule is not a significant regulatory action under Executive Order 12866, Regulatory Planning and Review. 58 FR 51735 October 4, 1993.
As a result, this action was not reviewed by the Office of Information and Regulatory Affairs in the Office of Management and Budget OMB. DOE
does not anticipate that this rulemaking will have an economic impact on regulated entities. This is a rule of agency procedure and practice. This rule withdraws the regulations governing DOEs internal procedures for the promulgation and processing of guidance documents. DOE is repealing these internal procedures as part of its implementation of Executive Order 13992 and for the reasons cited previously, and does not anticipate incurring significant additional resource costs in doing so.
B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act 5
U.S.C. 601 et seq. requires the preparation of an initial regulatory flexibility analysis IRFA for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
As required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461
August 16, 2002, DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process, 68 FR 7990. The Department has made its procedures and policies available on the Office of General Counsels website: https
energy.gov/gc/office-general-counsel.
This rule withdraws internal agency procedures regarding DOEs issuance of guidance documents. DOE notes, however, that its procedures for public transparency and involvement in the development of agency guidance documents will remain unchanged by 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
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