Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1279 

1 84 FR 55235 (Oct. 15, 2019). 

2OMB M–20–02 is available at https://

www.whitehouse.gov/wp-content/uploads/2019/10/ 

M-20-02-Guidance-Memo.pdf. 

3 E.O. 13891 section 2(b) lists the following as 

exclusions to the definition of guidance document. 

84 FR at 55235–36. 

4CEQ’s website, whitehouse.gov/ceq/resources, 

includes links to CEQ guidance documents and 

resources, some of which are provided on nepa.gov 

and sustainability.gov. 

PART 220—[REMOVED] 

■ 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. 2020–27908 Filed 1–7–21; 8:45 am] 

BILLING CODE 3720–58–P 

COUNCIL ON ENVIRONMENTAL 

QUALITY 

40 CFR Part 1519 

RIN 0331–AA04 

Guidance Document Procedures 

AGENCY: Council on Environmental 

Quality. 

ACTION: Final rule. 

SUMMARY: 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) 395–5750, 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 M–20–02, 

‘‘Guidance Implementing Executive 

Order 13891, Titled ‘Promoting the Rule 

of Law Through Improved Agency 

Guidance Documents’ ’’ (OMB M–20– 

02) 2 to provide guidance and 

implement the Executive order. OMB 

M–20–02 provides agencies with 

additional instruction on how to 

implement E.O. 13891, including the 

required rulemaking. 

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 M–20–02. 

A. Section 1519.1, ‘‘Purpose’’ 

Section 1519.1, ‘‘Purpose,’’ states that 

the purpose of part 1519 is to 

implement E.O. 13891, and explains 

CEQ’s process for developing and 

issuing guidance. 

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 2(b) 3 of the E.O. 

and Q2 of OMB M–20–02. 

Paragraph (c) of § 1519.2 lists the 

minimum requirements for any 

document meeting the definition of a 

guidance document consistent with Q22 

of OMB M–20–02, including a title, 

unique identification number, date, 

indication of whether it revises or 

replaces prior guidance, summaries, and 

legal citations. Additionally, consistent 

with section 4(i) of E.O. 13891, 

paragraph (c)(6) 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 (c)(11) of § 1519.2 specifies 

that any guidance document must be 

posted on CEQ’s 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 CEQ’s 

guidance documents lack the force and 

effect of law, unless expressly 

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 4(ii) 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 2(c) of E.O. 13891. 

Paragraph (a) sets forth that definition. 

OMB’s 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 4(iii) 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. 553(b)(A). 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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1280 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

E.O. Because this rule is one of agency 

organization, procedure, or practice, it is 

exempt from the requirement to provide 

prior notice and opportunity for public 

comment. 

B. Regulatory Planning and Review 

(E.O. 12866 and E.O. 13563) 

E.O. 12866 provides that OIRA will 

review all significant rules. E.O. 13563 

reaffirms the principles of E.O. 12866, 

calling for improvements in the Federal 

government’s regulatory system to 

promote predictability, to reduce 

uncertainty, and to use the best, most 

innovative, and least burdensome tools 

for achieving regulatory objectives. 

OMB determined that this final rule 

does not meet the requirements for a 

significant regulatory action under E.O. 

12866, as supplemented by E.O. 13563, 

and therefore it was not subject to 

review. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act, as 

amended (RFA), 5 U.S.C. 601 et seq., 

and E.O. 13272 do not apply to this 

rulemaking because it is not subject to 

the notice and comment requirements of 

5 U.S.C. 553(b). 

D. Unfunded Mandates Reform Act 

A statement containing the 

information required by the Unfunded 

Mandates Reform Act, 2 U.S.C. 1531 et 

seq., is not required. This rule will not 

impose an unfunded mandate on State, 

local, or Tribal governments or the 

private sector of more than $100 million 

per year, and it will not have a 

significant or unique effect on State, 

local, or Tribal governments, or the 

private sector. 

E. Reducing Regulation and Controlling 

Regulatory Costs (E.O. 13771) 

This rule is not an E.O. 13771 

regulatory action because this rule is not 

significant under E.O. 12866. 

F. Federalism (E.O. 13132) 

Under the criteria in section 1 of E.O. 

13132, this rule will not have sufficient 

Federalism implications to warrant the 

preparation of a Federalism summary 

impact statement because it will not 

substantially and directly affect the 

relationship between the Federal and 

State governments. 

G. National Environmental Policy Act 

The purpose of this rulemaking is to 

formalize the CEQ’s administrative 

procedures for issuing guidance 

documents, as required by E.O. 13891. 

CEQ has determined that the final rule 

is a non-major Federal action under the 

National Environmental Policy Act, 42 

U.S.C. 4321 et seq., and would not have 

any effect on the environment because 

it merely outlines internal CEQ 

administrative procedures and does not 

authorize any activity or commit 

resources to a project that may affect the 

environment. 

H. Paperwork Reduction Act 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

This rule will not impose recordkeeping 

or reporting requirements on State, 

local, or Tribal governments, 

individuals, businesses, or 

organizations. 

List of Subjects in 40 CFR Part 1519 

Administrative practice and 

procedure, Guidance. 

Mary B. Neumayr, 

Chairman. 

■ For the reasons stated in the preamble, 

the Council on Environmental Quality 

adds 40 CFR part 1519 as follows: 

PART 1519—GUIDANCE DOCUMENTS 

Sec. 

1519.1 Purpose. 

1519.2 Guidance document procedures. 

1519.3 Procedures for the public to request 

withdrawal or modification of a 

guidance document. 

1519.4 Significant guidance documents. 

Authority: 42 U.S.C. 4321–4347; 42 U.S.C. 

4371–4375; and E.O. 13891, 84 FR 55235. 

§ 1519.1 Purpose. 

(a) This part implements Executive 

Order 13891, ‘‘Promoting the Rule of 

Law Through Improved Agency 

Guidance Documents,’’ and reflects the 

policies described in that order. The 

provisions in this part address the 

Council on Environmental Quality’s 

procedures for the development and 

issuance of agency guidance documents. 

This part explains what constitutes 

guidance documents, and sets forth the 

minimum requirements for guidance 

documents, the procedures to request 

withdrawal or modification of guidance 

documents, and the additional 

requirements and procedures for 

significant guidance documents. 

(b) This part is intended to improve 

the internal management of the Council 

on Environmental Quality. It is not 

intended to and does not create any 

right or benefit, substantive or 

procedural, enforceable at law or in 

equity by any party against the United 

States, its agencies or other entities, its 

officers or employees, or any other 

person. 

(c) If Executive Order 13891 or any 

provision thereof is rescinded or 

superseded, this part remains in effect. 

§ 1519.2 Guidance document procedures. 

(a) Definition of guidance documents. 

For purposes of this part, guidance 

documents are agency statements of 

general applicability, intended to have 

future effect on the behavior of 

regulated parties, that set forth a policy 

on a statutory, regulatory, or technical 

issue, or an interpretation of a statute or 

regulation. 

(b) Documents excluded from the 

definition of guidance documents. 

Guidance documents do not include: 

(1) Agency statements of specific, 

rather than general, applicability. 

(2) Agency statements that do not set 

forth a policy on a statutory, regulatory, 

or technical issue or an interpretation of 

a statute or regulation. 

(3) Legislative rules promulgated 

under 5 U.S.C. 553 (or similar statutory 

provisions), or exempt from rulemaking 

requirements under 5 U.S.C. 553(a). 

(4) Rules of agency organization, 

procedure, or practice that are not 

anticipated to have substantial future 

effect on the behavior of regulated 

parties or the public. 

(5) Decisions of agency adjudication. 

(6) Documents or agency statements 

that are directed solely to the Council 

on Environmental Quality or other 

agencies (or personnel of such agencies) 

that are not anticipated to have 

substantial future effect on the behavior 

of regulated parties or the public. 

(7) Legal briefs and other court filings. 

(8) Legal advice or opinions from the 

Council on Environmental Quality’s 

Office of the General Counsel. 

(9) Categories of guidance documents 

made exempt from Executive Order 

13891 by the Administrator of the Office 

of Management and Budget’s Office of 

Information and Regulatory Affairs 

through memoranda issued pursuant to 

section 4(b) of Executive Order 13891. 

(c) Elements of guidance documents. 

In general, each guidance document 

must: 

(1) Provide the title of the guidance 

document; 

(2) Provide a unique document 

identification number; 

(3) Identify the Council on 

Environmental Quality and any office, 

as appropriate, issuing the guidance 

document; 

(4) Include the date of issuance; 

(5) Include the term ‘‘guidance’’; 

(6) Include a disclaimer clarifying that 

it does not have the force and effect of 

law; is not meant to bind the public in 

any way; and is intended only to 

provide clarity to the public regarding 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1281 

existing requirements under the law or 

agency policies. When a guidance 

document is binding because the law 

authorizes binding guidance or because 

a contract incorporates the guidance, the 

Council on Environmental Quality must 

modify the disclaimer to reflect 

accordingly; 

(7) If it is a revision to or a 

replacement of a previously issued 

guidance document, identify the 

guidance document that it revises or 

replaces; 

(8) Include a short summary of the 

subject matter covered in the guidance 

document at the top of the document; 

(9) Identify the activities to which and 

the persons to whom the guidance 

document applies; 

(10) Include the citation to the 

statutory provision or regulation to 

which the guidance document applies 

or which it interprets; and 

(11) Be posted on the Council on 

Environmental Quality’s website. 

(d) Review and clearance. The Office 

of the General Counsel must review and 

clear all proposed guidance documents 

before issuance. 

§ 1519.3 Procedures for the public to 

request withdrawal or modification of a 

guidance document. 

(a) Any member of the public may 

petition the Council on Environmental 

Quality to withdraw or modify a 

guidance document. 

(b) The petitioner must submit the 

request for the withdrawal or 

modification of a guidance document in 

writing to the Office of the General 

Counsel. The petition must contain a 

statement of the reasons for the petition 

and any supporting documents to 

support the petitioner’s request. 

(c) Upon receipt of a petition for 

withdrawal or modification of a 

guidance document, the Office of the 

General Counsel will consult with the 

relevant offices and coordinate the 

response to the petition. 

(d) The Council on Environmental 

Quality should respond to a petition in 

writing, including electronically, within 

90 days of receipt of a petition. The 

response should state whether the 

petition is granted, granted in part and 

denied in part, denied, or provisionally 

denied for lack of adequate information. 

If the petition is provisionally denied 

for lack of adequate information, the 

response should indicate what 

additional information is necessary to 

adjudicate the petition. The Office of the 

General Counsel should respond to the 

petition in writing no later than 90 days 

after receipt of the necessary additional 

information. The response should state 

whether the petition is granted, granted 

in part and denied in part, or denied. 

(e) The Council on Environmental 

Quality may consider in a coordinated 

manner or provide a coordinated 

response to similar petitions for 

withdrawal or modification. 

(f) The Council on Environmental 

Quality need not respond to petitions 

under this part for withdrawal or 

modification of documents that do not 

meet the definition of a guidance 

document. 

§ 1519.4 Significant guidance documents. 

(a) Significant guidance documents 

definition. For the purposes of this 

section, significant guidance documents 

are guidance documents that may be 

reasonably anticipated to: 

(1) Lead to an annual effect on the 

economy of $100 million or more, or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

of Executive Order 12866. 

(b) Actions the Council on 

Environmental Quality will take before 

issuing significant guidance documents. 

When the Office of Management and 

Budget’s Office of Information and 

Regulatory Affairs determines that a 

guidance document is a significant 

guidance document, the Council on 

Environmental Quality must: 

(1) Submit the guidance document for 

review by the Office of Information and 

Regulatory Affairs under Executive 

Order 12866; 

(2) Publish the draft significant 

guidance document in the Federal 

Register for a public notice and 

comment period of at least 30 days; 

(i) This provision will not apply if the 

Council on Environmental Quality for 

good cause finds that notice and public 

comment is impracticable, unnecessary, 

or contrary to the public interest. 

(ii) If such a finding is made, the 

Council on Environmental Quality must 

incorporate such a finding and a brief 

statement of its reasoning into the 

significant guidance document. 

(3) Obtain approval on a nondelegable basis from the Chairman or an 

official who is serving in an acting 

capacity as the Chairman. 

(4) Provide a public response to major 

concerns raised in comments on the 

draft significant guidance document. 

(5) Announce the availability of the 

final significant guidance document. 

(6) Comply with the applicable 

requirements for regulations or rules, 

including significant regulatory actions, 

set forth in Executive Orders 12866, 

‘‘Regulatory Planning and Review,’’ 

13563, ‘‘Improving Regulation and 

Regulatory Review,’’ 13609, ‘‘Promoting 

International Regulatory Cooperation,’’ 

13771, ‘‘Reducing Regulation and 

Controlling Regulatory Costs,’’ and 

13777, ‘‘Enforcing the Regulatory 

Reform Agenda.’’ 

(c) Exemption. This section will not 

apply if the Chairman or an official who 

is serving in an acting capacity as the 

Chairman of the Council on 

Environmental Quality and the 

Administrator of the Office of 

Information and Regulatory Affairs 

agree that exigency, safety, health, or 

other compelling cause warrants an 

exemption from some or all 

requirements. 

[FR Doc. 2020–28881 Filed 1–7–21; 8:45 am] 

BILLING CODE 3225–F1–P 

FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL 

40 CFR Chapter IX 

[Agency Docket Number 2020–001] 

RIN 3121–AA01 

Adding Mining as a Sector of Projects 

Eligible for Coverage Under Title 41 of 

the Fixing America’s Surface 

Transportation Act 

AGENCY: Federal Permitting 

Improvement Steering Council. 

ACTION: Final rule. 

SUMMARY: The Federal Permitting 

Improvement Steering Council 

(Permitting Council) has voted to add 

mining as a sector with infrastructure 

projects eligible for coverage under Title 

41 of the Fixing America’s Surface 

Transportation Act (FAST–41). A new 

part will be included in the Code of 

Federal Regulations that adds mining to 

the list of statutory FAST–41 sectors. 

The addition of mining as a FAST–41 

sector will allow qualified mining 

infrastructure projects to become FAST– 

41 covered projects. FAST–41 coverage 

will help Federal agencies coordinate 

their environmental and project review 

efforts to improve the timeliness, 

efficiency, predictability, and 

transparency of the decision-making 

processes associated with covered 


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