29932 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 

1 In the NOPR, DOE also responded to 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 defending improper agency 

guidance. DOE granted the petition in part and 

denied it in part. (85 FR 39497) 

responsibilities and conduct contained 

in 5 CFR part 735. 

§ 10201.102 Prior approval for outside 

employment or activity. 

(a) General requirement. Before 

engaging in any outside employment or 

activity, whether or not for 

compensation, an OSC employee must 

obtain written approval from the 

Designated Agency Ethics Official 

(DAEO) or the Alternate Designated 

Agency Ethics Official (ADAEO), except 

to the extent that OSC has issued an 

internal instruction pursuant to 

paragraph (d) of this section exempting 

certain employment or activities from 

this requirement. 

Note 1 to paragraph (a). 18 U.S.C. 

203(d) and 205(e) require special 

approval for certain representational 

activities in claims against the Federal 

Government and other matters affecting 

the interests of the government. 

(b) Definition of ‘‘outside employment 

or activity’’. For purposes of this 

section, ‘‘outside employment or 

activity’’ means any form of non-Federal 

employment or business relationship 

involving the provision of services by 

the employee, whether for 

compensation or not for compensation. 

It includes, but is not limited to, serving 

as an officer, director, employee, agent, 

attorney, consultant, contractor, general 

partner, trustee, or teacher. The 

definition does not include 

participation in the activities of a 

nonprofit charitable, religious, 

professional, social, fraternal, 

educational, recreational, public service, 

or civic organization unless such 

activities involve the provision of 

professional services or advice, or are 

for compensation other than 

reimbursement of expenses. 

Note 2 to paragraph (b). Employees 

who wish to engage in compensated 

speaking or writing in a personal 

capacity are subject to, among other 

things, the provisions of 5 CFR 2635.703 

(concerning use of nonpublic 

information) and 5 CFR 2635.807 

(concerning receipt of compensation for 

teaching, speaking, and writing related 

to one’s duties), and are encouraged to 

seek guidance from an agency ethics 

official before engaging in such 

activities. Certain covered non-career 

employees are also subject to further 

restrictions on receipt of outside 

compensation pursuant to section 502 of 

the Ethics in Government Act (5 U.S.C. 

app.). In addition, OSC attorneys should 

consult their applicable state bar rules 

of professional conduct. 

(c) Standard for approval. Approval 

shall be granted by the DAEO or 

ADAEO upon a determination that the 

outside employment or activity is not 

expected to involve conduct prohibited 

by statute or Federal regulation, 

including 5 CFR part 2635. 

(d) Implementation guidance. The 

DAEO or ADAEO may issue internal 

instructions governing the submission 

of requests for approval of outside 

employment or activity. The 

instructions may exempt categories of 

employment or activities from the prior 

approval requirement of this section 

based on a determination that those 

categories generally would be approved 

and are not likely to involve prohibited 

conduct or create an appearance of lack 

of impartiality. 

[FR Doc. 2021–11720 Filed 6–3–21; 8:45 am] 

BILLING CODE 7405–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 1061 

RIN 1990–AA50 

Procedures for the Issuance of 

Guidance Documents 

AGENCY: Office of General Counsel, 

Department of Energy. 

ACTION: Final rule; withdrawal. 

SUMMARY: In accordance with an 

Executive Order issued by the President 

on January 20, 2021, and for the reasons 

explained in the preamble of this final 

rule, the Department of Energy (DOE or 

‘‘the Department’’) withdraws the 

Department’s final rule on guidance 

implementing the Executive Order 

‘‘Promoting the Rule of Law Through 

Improved Agency Guidance 

Documents.’’ 

DATES: As of June 4, 2021, the final rule 

published January 6, 2021 at 86 FR 451, 

effective February 5, 2021, delayed 

February 2, 2021, until March 21, 2021, 

at 86 FR 7799, and delayed March 19, 

2021, until June 17, 2021, at 86 FR 

14807, is withdrawn. 

ADDRESSES: The docket for this 

rulemaking, which includes Federal 

Register notices, comments, and other 

supporting documents/materials, is 

available for review at https://

www.regulations.gov. All documents in 

the docket are listed in the https://

www.regulations.gov index. However, 

some documents listed in the index, 

such as those containing information 

that is exempt from public disclosure, 

may not be publicly available. 

The docket web page can be found at 

https://www.regulations.gov/ associated 

with RIN 1990–AA50. The docket web 

page contains simple instructions on 

how to access all documents, including 

public comments, in the docket. See the 

section on Public Participation for 

information on how to submit 

comments through https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Matthew Ring, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–33, 1000 

Independence Avenue SW, Washington, 

DC 20585, (202) 586–2555, Email: 

Guidance@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On July 1, 2020, DOE published a 

notice of proposed rulemaking (NOPR) 

in which DOE proposed a new part 1061 

in title 10 of the Code of Federal 

Regulations to implement the 

requirements of Executive Order 13891, 

‘‘Promoting the Rule of Law Through 

Improved Agency Guidance 

Documents’’ (84 FR 55235).1 (85 FR 

39495) After considering comments 

from stakeholders on the NOPR, DOE 

published a final rule, on January 6, 

2021, establishing new 10 CFR part 

1061. (86 FR 451) As required by 

Executive Order 13891, part 1061 

contained internal DOE requirements 

for the contents of guidance documents, 

procedures for providing notice of, and 

soliciting public comment on, certain 

guidance documents, and procedures 

for the public to petition for the 

issuance, withdrawal or revision of 

guidance documents. 

On January 20, 2021, the President 

issued Executive Order 13992, 

‘‘Revocation of Certain Executive Orders 

Concerning Federal Regulation’’ (86 FR 

7049), which, among other things, 

revoked Executive Order 13891 and 

directed agencies to promptly take steps 

to rescind any orders, rules, regulations, 

guidelines, or policies, or portions 

thereof, implementing or enforcing the 

Executive Order 13891. Executive Order 

13992 states that it is the policy of the 

Administration to use available tools to 

confront the urgent challenges facing 

the Nation, including the coronavirus 

disease 2019 (COVID–19) pandemic, 

economic recovery, racial justice, and 

climate change. To tackle these 

challenges effectively, executive 

departments and agencies must be 

equipped with the flexibility to use 

robust regulatory action to address 

national priorities. 

Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 29933 

2The Joint Commenters’ comments may be found 

on https://www.regulations.gov under docket 

number DOE–HQ–2020 with the Comment ID DOE– 

HQ–2020–0033–0012. 

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 DOE’s statutory duties. 

The March 2021 NOPR stated that part 

1061 will in particular hinder DOE’s 

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 DOE’s ability to provide timely 

guidance on which the public can 

confidently rely. 

Moreover, the March 2021 NOPR 

stated that DOE’s 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 DOE’s 

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 DOE’s 

statutory duties, and therefore, DOE is 

withdrawing part 1061. As stated in the 

March 2021 NOPR, part 1061 will 

hinder DOE’s ability to address the 

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 DOE’s 

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 DOE’s 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 DOE’s 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 DOE’s Office of 

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 EERE’s 

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 

EERE’s 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 DOE’s 

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 DOE’s 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 DOE’s statutory duties, 

and therefore, DOE is withdrawing part 

1061. Addressing the challenges 

enumerated in Executive Order 13992, 

particularly the economic recovery and 

29934 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 

3FreedomWorks’ comments may be found on 

https://www.regulations.gov under docket number 

DOE–HQ–2020 with the Comment ID DOE–HQ– 

2020–0033–0013. The Clinic’s comments may be 

found on https://www.regulations.gov under docket 

number DOE–HQ–2020 with the Comment ID DOE– 

HQ–2020–0033–0014. 

4ASAP’s comments may be found on https://

www.regulations.gov under docket number DOE– 

HQ–2020 with the Comment ID DOE–HQ–2020– 

0033–0015. 

5The individual member of the public’s comment 

may be found on https://www.regulations.gov under 

docket number DOE–HQ–2020 with the Comment 

ID DOE–HQ–2020–0033–0012. 

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 1–2; Clinic at 2–8) 

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 8–10) Regarding DOE’s 

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 

circumstances and restricts DOE’s 

ability to provide timely guidance, and 

stated that in DOE’s issuance of part 

1061 the Department concluded that 

part 1061 allows DOE sufficient 

flexibility to efficiently address shortterm or urgent challenges. (The Clinic at 

10–11) FreedomWorks stated that DOE 

asserts that transparency and public 

input will hinder DOE’s regulatory 

output but that this assertion does not 

support withdrawal of part 1061, 

because the APA’s 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 

DOE’s withdrawal of part 1061. 

(FreedomWorks at 2–3; 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 

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 DOE’s 

issuance of important guidance 

documents that inform the public of 

important issues in DOE’s 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. 117–2, 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 

Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 29935 

clarify policies that address climate 

change and other pressing challenges in 

a timely manner, and thus, consistent 

with the policy directive in President 

Biden’s 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 3–4) 

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 6–7) ASAP 

stated that these benefits need not come 

at the cost of transparency. ASAP also 

noted DOE’s 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 DOE’s 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 

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 DOE’s 

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 DOE’s 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 11–12) 

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. 

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 DOE’s 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 Counsel’s website: https://

energy.gov/gc/office-general-counsel. 

This rule withdraws internal agency 

procedures regarding DOE’s 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 DOE’s 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 

29936 Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 

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 the challenges 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. DOE therefore does not 

anticipate any significant economic 

impacts from this final rule. For these 

reasons, DOE certifies that this 

rulemaking will not have a significant 

economic impact on a substantial 

number of small entities. Accordingly, 

DOE did not prepare a regulatory 

flexibility act analysis for this 

rulemaking. DOE’s certification and 

supporting statement of factual basis 

will be provided to the Chief Counsel 

for Advocacy of the Small Business 

Administration for review under 5 

U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rule imposes no new information 

or record keeping requirements. 

Accordingly, Office of Management and 

Budget (OMB) clearance is not required 

under the Paperwork Reduction Act. (44 

U.S.C. 3501 et seq). 

D. Review Under the National 

Environmental Policy Act of 1969 

Pursuant to the National Environment 

Policy Acy of 1969 (NEPA), DOE has 

analyzed this action in accordance with 

NEPA and DOE’s NEPA implementing 

regulations (10 CFR part 1021). DOE has 

determined that this rule qualifies for a 

categorical exclusion under 10 CFR part 

1021, subpart D, appendix A5 because 

it amends an existing rule that does not 

change the environmental effect of the 

rule and meets the requirements for 

application of the categorical exclusion. 

See 10 CFR 1021.410. Therefore, DOE 

has determined that the promulgation of 

this rule is not a major Federal action 

significantly affecting the quality of the 

human environment within the meaning 

of NEPA, and does not require an EA or 

EIS. 

E. Review Under Executive Order 13132, 

‘‘Federalism’’ 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications. On March 

14, 2000, DOE published a statement of 

policy describing the intergovernmental 

consultation process it will follow in the 

development of such regulations. (65 FR 

13735) DOE examined this rule and 

determined that it does not preempt 

State law and would not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government. No further action 

is required by Executive Order 13132. 

F. Executive Order 13175 ‘‘Consultation 

and Coordination With Indian Tribal 

Governments’’ 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments,’’ 65 FR 67249, November 

9, 2000, applies to agency regulations 

that have Tribal implications, that is, 

regulations that have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. This 

rule has been analyzed in accordance 

with the principles and criteria 

contained in Executive Order 13175. 

Because this rule does not significantly 

or uniquely affect the communities of 

the Indian tribal governments or impose 

substantial direct compliance costs on 

them, the funding and consultation 

requirements of Executive Order 13175 

do not apply. 

G. Review Under Executive Order 

12988, ‘‘Civil Justice Reform’’ 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (February 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct, rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies its 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct, 

while promoting simplification and 

burden reduction; (4) specifies its 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, the rule 

meets the relevant standards of 

Executive Order 12988. 

H. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments and the private sector. For 

a proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a) and 

(b)) The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (also available at 

https://energy.gov/gc/office-generalcounsel). This rule contains neither an 

intergovernmental mandate nor a 

mandate that may result in the 

expenditure of $100 million or more in 

any year by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, so these requirements 

Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Rules and Regulations 29937 

1 12 U.S.C. 461(b)(2). 

2Reserve requirement ratios for nonpersonal time 

deposits and Eurocurrency liabilities have been set 

at zero percent since 1990. See Regulation D 

(Reserve Requirements of Depository Institutions), 

Final Rule, 55 FR 50540 (Dec. 7, 1990). 

3Regulation D (Reserve Requirements of 

Depository Institutions), Final Rule, 86 FR 8853 

(February 10, 2021); see Regulation D (Reserve 

Requirements of Depository Institutions), Interim 

Final Rule, 85 FR 16525 (March 24, 2020). 

under the Unfunded Mandates Reform 

Act do not apply. 

I. Review Under the Treasury and 

General Government Appropriations 

Act of 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

rule does not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

J. Review Under Executive Order 12630, 

‘‘Governmental Actions and 

Interference With Constitutionally 

Protected Property Rights’’ 

DOE has determined, under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(March 18, 1988), that this rule does not 

result in any takings which might 

require compensation under the Fifth 

Amendment to the United States 

Constitution. 

K. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516, note) 

provides for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 7, 2002). DOE has 

reviewed this rule under the OMB and 

DOE guidelines and has concluded that 

it is consistent with applicable policies 

in those guidelines. 

L. Review Under Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. The 

rule withdraws internal agency 

procedures and does not meet any of the 

three criteria listed above. Accordingly, 

the requirements of Executive Order 

13211 do not apply. 

Approval of the Office of the Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects in 10 CFR Part 1061 

Administrative practice and 

procedure. 

Signing Authority 

This document of the Department of 

Energy was signed on May 27, 2021, by 

John T. Lucas, Acting General Counsel, 

Office of the General Counsel, pursuant 

to delegated authority from the 

Secretary of Energy. That document 

with the original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on June 1, 

2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

■ Accordingly, the final rule adding 10 

CFR part 1061, published in the Federal 

Register on January 6, 2021 (86 FR 45), 

is withdrawn. 

[FR Doc. 2021–11753 Filed 6–3–21; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 204 

[Docket No. R–1737] 

RIN 7100–AG07 

Regulation D: Reserve Requirements 

of Depository Institutions 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board of Governors of the 

Federal Reserve System (‘‘Board’’) is 

adopting amendments to Regulation D 

(Reserve Requirements of Depository 

Institutions) to eliminate references to 

an ‘‘interest on required reserves’’ rate 

and to an ‘‘interest on excess reserves’’ 

rate and replace them with a reference 

to a single ‘‘interest on reserve 

balances’’ rate; and to simplify the 

formula used to calculate the amount of 

interest paid on balances maintained by 

or on behalf of eligible institutions in 

master accounts at Federal Reserve 

Banks, and to make other conforming 

amendments. The Board requested 

comment on the amendments and 

received one comment that addressed 

issues not raised by the proposed 

amendments. Accordingly, the Board is 

adopting the final rule as proposed 

without change. 

DATES: Effective July 29, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Sophia H. Allison, Senior Special 

Counsel, (202–452–3565), Legal 

Division, or Matthew Malloy (202–452– 

2416), Division of Monetary Affairs, or 

Heather Wiggins (202–452–3674), 

Division of Monetary Affairs; for users 

of Telecommunications Device for the 

Deaf (TDD) only, contact 202–263–4869; 

Board of Governors of the Federal 

Reserve System, 20th and C Streets NW, 

Washington, DC 20551. 

SUPPLEMENTARY INFORMATION: 

I. Statutory and Regulatory Background 

Section 19(b)(2) of the Federal 

Reserve Act (‘‘Act’’) 1 requires each 

depository institution to maintain 

reserves against its transaction accounts, 

nonpersonal time deposits, and 

Eurocurrency liabilities within ratios 

prescribed by the Board for the purpose 

of implementing monetary policy.2 The 

Board’s Regulation D (Reserve 

Requirements of Depository Institutions, 

12 CFR part 204) implements the 

reserve requirements provisions of 

section 19. Effective March 24, 2020, the 

Board amended Regulation D to set all 

reserve requirement ratios for 

transaction accounts to zero percent.3

Section 19(b)(12) of the Act provides 

that balances maintained by or on behalf 

of ‘‘eligible institutions’’ in accounts at 

Federal Reserve Banks may receive