[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Rules and Regulations]
[Pages 66230-66240]
[FR Doc No: 2020-20519]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[EPA-HQ-OA-2020-0128, FRL-10014-91-OP]
RIN 2010-AA13

EPA Guidance; Administrative Procedures for Issuance and Public
Petitions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes the procedures and requirements
for how the U.S. Environmental Protection Agency (EPA) will manage the
issuance of guidance documents consistent with the Executive Order
13891 entitled ``Promoting the Rule of Law Through Improved Agency
Guidance Documents.'' Specifically, consistent with the Executive
Order, this regulation provides a definition of guidance documents for
the purposes of this rule, establishes general requirements and
procedures for certain guidance documents issued by the EPA and
incorporates additional requirements for guidance documents determined
to be significant guidance. This regulation, consistent with the
Executive Order, also provides procedures for the public to petition
for the modification or withdrawal of active guidance documents as
defined by this rule or to petition for the reinstatement of a
rescinded guidance document. This regulation is intended to increase
the transparency of the EPA's guidance practices and improve the
process used to manage EPA guidance documents.

DATES: This final rule is effective on November 18, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OA-2020-0128. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through https://www.regulations.gov. For information on the EPA Docket
Center services and the current status, please visit us online at
https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Sharon Cooperstein, Policy and
Regulatory Analysis Division, Office of Regulatory Policy and
Management (Mail Code 1803A), Environmental Protection Agency, 1200
Pennsylvania Avenue Northwest, Washington, DC 20460; telephone number:
202-564-7051; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This is a rule of Agency procedure and practice. The provisions
only apply to the EPA and do not regulate any external entities.

B. What action is the Agency taking?

    After considering the public comments received on the proposal, the
EPA is finalizing procedures that the Agency will use to issue guidance
documents as defined in this regulation. These new procedures satisfy
the requirements of Executive Order (E.O.) 13891, ``Promoting the Rule
of Law Through Improved Agency Guidance Documents'' (84 FR 55237,
October 15, 2019), which directs Federal agencies to develop
regulations to set forth processes and procedures for issuing guidance
documents.
    Specifically, consistent with the E.O., this regulation provides
that the EPA will use an online portal (the EPA Guidance Portal) to
identify EPA guidance documents for the public and will establish:
Definitions of ``guidance document,'' ``significant guidance
document,'' and other key terms; standard elements for all guidance
documents; additional requirements for significant guidance documents;
procedures for the EPA to enable the public to comment on draft
significant guidance documents; and procedures for the public to
petition the Agency for modification or withdrawal of guidance
documents.
    In this final rule, the EPA has revised some of the proposed
requirements in response to public comments. Most notably, the EPA is
adding the opportunity for the public to petition the Agency to
reinstate guidance documents that were rescinded. In addition, the EPA
will make information publicly available regarding petitions received
pursuant to the petition procedures. To provide additional clarity, the
final regulatory text includes new definitions of ``active guidance
document'' and ``rescinded guidance document.'' Other minor edits to
the regulatory text are also being finalized to increase clarity.

C. What is the Agency's authority for taking this action?

    The EPA is authorized to promulgate this rule under its
housekeeping authority. The Federal Housekeeping Statute provides that
``[t]he head of an Executive department or military department may
prescribe regulations for the government of his department, the conduct
of its employees, the distribution and performance of its business, and
the custody, use, and preservation of its records, papers, and
property.'' 5 U.S.C. 301. The EPA gained housekeeping authority through
the Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (July 9, 1970),
which ``convey[s] to the [EPA] Administrator all of the housekeeping
authority available to other department heads under section 301'' and
demonstrates that ``Congress has vested the Administrator with the
authority to run EPA, to exercise its functions, and to

issue regulations incidental to the performance of those functions.''
\1\
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    \1\ Authority of EPA to Hold Employees Liable for Negligent
Loss, Damage, or Destruction of Government Personal Property, 32
O.L.C. 79, 2008 WL 4422366 at *4 (May 28, 2008) (``OLC Opinion'').
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    Consistent with the proposal, the EPA considers this action a rule
of agency organization, procedure, or practice that lacks the force and
effect of law. The EPA determined, as a matter of good government, to
seek comment from the public. The Administrative Procedure Act (APA), 5
U.S.C. 553(b)(3)(A), provides that an agency may issue interpretive
rules, general statements of policy, or rules of agency organization,
procedure, or practice without providing notice and an opportunity for
public comment.
    The EPA received multiple public comments regarding the legal
authority for this regulation. Several commenters expressed their
concerns regarding the EPA citing the Federal Housekeeping Statute as
the legal authority for the proposed rulemaking. For example, some
commenters state that the Federal Housekeeping Statute does not confer
any authority on the EPA to promulgate regulations because the EPA is
not an ``executive department'' within the meaning of the statute. Even
if the Federal Housekeeping Statute confers authority on the EPA, the
commenters claim that this rulemaking exceeds the ``day-to-day office
housekeeping'' authorized by the statute. These commenters disagree
with the EPA that this rule is a procedural matter of ``internal
management'' and claim that it is a substantive regulation that creates
public rights and agency obligations. Further, the commenters state
that opening the proposed rule to public comment contradicts the EPA's
claims that the rule is ``internal management'' with no substantive
effect.
    The EPA disagrees with these commenters. As the Supreme Court
discussed in Chrysler Corp v. Brown, the intended purpose of 5 U.S.C.
301was to grant early Executive departments the authority ``to govern
internal departmental affairs.'' Chrysler Corp. v. Brown, 441 U.S. 281,
309 (1979). As the Supreme Court further notes, section 301 authorizes
``what the [Administrative Procedure Act] terms `rules of agency
organization, procedure or practice' as opposed to substantive rules.''
Id. at 310.
    The EPA is not one of the 15 ``Executive Departments'' listed at 5
U.S.C. 101. However, the EPA gained housekeeping authority through the
Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (July 9, 1970). The
Reorganization Plan created the EPA, established the Administrator as
``head of the agency[,]'' and transferred functions and authorities of
various agencies and Executive departments to the EPA. Section 2(a)(1)-
(8) of the Reorganization Plan transferred to the EPA functions
previously vested in several agencies and executive departments
including the Departments of Interior and Agriculture. Section 2(a)(9)
also transferred so much of the functions of the transferor officers
and agencies ``as is incidental to or necessary for the performance by
or under the Administrator of the functions transferred.'' The Federal
Housekeeping Statute was existing law at the time the Reorganization
Plan was enacted. Accordingly, the concomitant federal housekeeping
authority to issue procedural rules was transferred to the EPA.
    The Office of Legal Counsel has opined that the Reorganization Plan
``convey[s] to the [EPA] Administrator all of the housekeeping
authority available to other department heads under section 301'' and
demonstrates that ``Congress has vested the Administrator with the
authority to run EPA, to exercise its functions, and to issue
regulations incidental to the performance of those functions.'' \2\
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    \2\ Authority of EPA to Hold Employees Liable for Negligent
Loss, Damage, or Destruction of Government Personal Property, 32
O.L.C. 79, 2008 WL 4422366 at *4 (May 28, 2008) (``OLC Opinion'').
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    Courts have recognized the EPA to be an agency with section 301
housekeeping authority. The U.S. Court of Appeals for the Second
Circuit, in EPA v. General Elec. Co., 197 F.3d 592, 595 (2d Cir. 1999),
found that ``the Federal Housekeeping Statute, 5 U.S.C. 301, authorizes
government agencies such as the EPA to adopt regulations regarding `the
custody, use, and preservation of [agency] records, papers, and
property.' '' The Fourth Circuit Court of Appeals, in Boron Oil Co. v.
Downie, 873 F.2d 67, 69 (4th Cir. 1989), held that the district court
exceeded its jurisdiction where it compelled testimony by an Agency
employee in a state court action to which the government was not a
party, contrary to duly promulgated EPA regulations, which the EPA
argued were authorized by section 301. Although the court assumed the
EPA derived its housekeeping authority from 5 U.S.C. 301, these cases
nonetheless recognized that the EPA had federal housekeeping authority.
Indeed, if the EPA did not possess federal housekeeping authority, the
EPA would not be able to carry out its daily functions, which would in
turn preclude the EPA from exercising its duties as a federal
regulatory agency. The same would hold true for other regulatory
agencies that are not listed as an Executive department under 5 U.S.C.
101.

II. Background and Purpose

    On October 9, 2019, the President signed E.O. 13891, ``Promoting
the Rule of Law Through Improved Agency Guidance Documents.'' E.O.
13891 directs Federal agencies to finalize regulations that ``set forth
processes and procedures for issuing guidance documents.'' \3\ E.O.
13891 notes that ``Americans deserve an open and fair regulatory
process that imposes new obligations on the public only when consistent
with applicable law and after an agency follows appropriate
procedures.'' \4\ A central principle of E.O. 13891 is that guidance
documents should clarify existing obligations only; they should not be
a vehicle for implementing new, binding requirements on the public.
E.O. 13891 recognizes that these documents, when designated as
significant guidance documents, could benefit from public input prior
to issuance. On October 31, 2019, the White House Office of Management
and Budget (OMB) Office of Information and Regulatory Affairs (OIRA)
issued a memorandum to Federal agencies outlining how to implement E.O.
13891.\5\
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    \3\ See section 4(a) of E.O. 13891 (October 15, 2019; 84 FR
55237).
    \4\ See section 1 of E.O. 13891 (84 FR 55235).
    \5\ Guidance Implementing Executive Order 13891, Dominic J.
Mancini, Acting Director, OIRA, October 31, 2019, (M-20-02).
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    On May 22, 2020, consistent with E.O. 13891 and OMB's implementing
memorandum, the EPA proposed new procedures for developing and issuing
guidance documents as defined in the proposed rule, and establishing a
petition process for public requests to modify or withdraw an active
guidance document.\6\ The purpose of this action is to ensure that the
EPA's guidance documents are:
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    \6\ 85 FR 31104 (May 22, 2020).
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     Developed with appropriate review;
     Accessible and transparent to the public; and,
     Benefit from public participation in the development of
significant guidance documents.
    Implementing these procedures will lead to enhanced transparency
and help to ensure that guidance documents are not improperly treated
as legally binding requirements by the EPA or by the regulated
community. Moreover, this regulation defines ``guidance document'' to
provide greater clarity to

the public regarding the scope of documents subject to these
procedures. This regulation will improve the ability of members of the
public to identify the guidance documents that the EPA uses and relies
upon, resolving any concerns over the difficulty assessing the final,
effective, active guidance of the Agency.\7\
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    \7\ This regulation defines the term ``active guidance
document'' to mean a guidance document in effect that the EPA
expects to cite, use, or rely upon. The term active guidance
document is synonymous with ``effective guidance document'' and
``guidance in effect.'' Active guidance document is the term used on
the EPA Guidance Portal website.
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    The EPA intends that this regulation be interpreted and implemented
in a manner that, consistent with the goals of improving the Agency's
accountability and the transparency of the EPA's guidance documents,
provides appropriate flexibility for the EPA to take those actions
necessary to accomplish its mission.

III. Guidance Document Procedures

    This final rule establishes the EPA's internal policies and
procedures for the issuance of future guidance documents pursuant to
the directives included in E.O. 13891 and codifies the requirement that
the Agency maintain an internet portal with a list of all effective,
active EPA guidance documents meeting the definition in this
regulation. The procedures contained in this final rule apply to
guidance documents, as defined by this regulation, issued by the EPA
and not excluded under Section 4(b) of E.O. 13891, as described in
section III.A of this preamble.\8\ Section 4(b) of the E.O. directs the
Administrator of OIRA to issue memoranda establishing exceptions from
the E.O. for categories of guidance documents, as appropriate.
Categorical exceptions may include documents that generally are only
routine or ministerial, or that are otherwise of limited importance to
the public. The procedures established in this rule do not apply to
guidance documents excepted from the requirements of E.O. 13891 under
Section 4(b) of the E.O., as interpreted by M-20-02, or otherwise
excepted by the Administrator of OIRA.
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    \8\ The EPA issues non-binding guidance using a variety of
methods to clarify existing obligations and provide information to
help regulated entities comply with requirements. Guidance documents
come in a variety of formats, including interpretive memoranda,
policy statements, manuals, bulletins, advisories, and more. Any
document that satisfies the definition of ``guidance document'' in
this regulation would qualify, regardless of name or format.
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A. Definition of Guidance Document and Significant Guidance Document
(40 CFR 2.503)

    The EPA proposed definitions of the terms ``guidance document'' and
``significant guidance document'' consistent with the definitions in
E.O. 13891 and OMB's implementing memorandum, M-20-02. Several
commenters provided strong support for the EPA's definition of
``guidance document'' and stated that it is consistent with the
targeted approach under E.O. 13891. The EPA agrees that the proposed
definition is consistent with the E.O. 13891 definition.
    Other commenters expressed their concerns that the definition of
``guidance document'' in this rulemaking does not provide sufficient
clarity regarding what documents the EPA considers to be guidance
documents subject to these requirements. A few commenters recommended
that the EPA create three or more categories of EPA guidance documents,
such as significant guidance documents, other important guidance
documents on the EPA Guidance Portal, and other technical program
guidance documents excluded from the EPA Guidance Portal. One commenter
noted that the definition of ``guidance document'' could be interpreted
to only encompass guidance documents that apply to regulated parties,
not States, and recommended a revision to clarify applicability to
States.
    The EPA disagrees that the definition of guidance document is
unclear. The EPA adopted the definition of guidance document set forth
in E.O. 13891 with only minor modifications and believes the listed
exclusions are helpful in distinguishing the types of documents that do
not meet the definition. In common parlance, guidance can refer to many
types of documents issued by the EPA and other agencies. The EPA does
not intend to use this rule to parse the various nomenclatures and
types of guidance that it uses. The definition of a ``guidance
document'' and ``significant guidance document'' as used in this rule
are specific to this rule. To provide further clarity in the
implementation of this rule, the EPA has also included definitions for
``active guidance document'' and ``rescinded guidance document.''
Regarding the revision recommended by a commenter to clarify whether
guidance documents can apply to States, the EPA disagrees with revising
the proposed definition of guidance document. In some circumstances,
States are regulated entities subject to EPA guidance documents while
in other circumstances States are co-regulators. The EPA believes that
the proposed definition adequately allows for this dual role of States.
    The EPA received comments regarding the meaning of ``active
guidance document'' and ``rescinded guidance document.'' One commenter
stated that the EPA should clarify what it means for a guidance
document to be ``rescinded'' or ``in effect,'' as neither term was
expressly defined in the proposed rule or explained in the preamble and
clarifying would ensure that the public understands which guidance
documents have legal effect. The commenter stated that the EPA should
clarify that a ``rescinded'' guidance document is a guidance document
that is not included on the EPA Guidance Portal and means that the EPA
cannot ``cite, use, or rely on'' it as explaining regulatory
requirement except to establish historical facts. The commenter stated
that the EPA should clarify that a guidance document ``in effect'' is
one that meets the proposal's definition of ``guidance document'' and
is included in the EPA Guidance Portal, and thus means that the EPA may
cite it.
    The EPA agrees that these definitions would increase clarity and
transparency. Based on comments received, the EPA is adding definitions
for ``active guidance document'' and ``rescinded guidance document.''
Specifically, the EPA is defining ``active guidance document'' in this
rule as a guidance document or significant guidance document in effect
that EPA expects to cite, use, or rely upon. Conversely, the EPA is
defining a ``rescinded guidance document'' in section 2.503 as a
document that would otherwise meet the definition of a guidance
document or significant guidance document, but that the EPA may not
cite, use, or rely upon except to establish historical facts. This
definition was adopted from the proposed section 2.502(c).
    Several commenters provided comments regarding how the definition
of guidance document applied to scientific and technical documents.
Several commenters recommended that the definition of ``guidance
document'' should not exclude scientific or technical determinations.
For example, several commenters recommended that scientific assessments
produced by the EPA's Integrated Risk Information System (IRIS) Program
be included in the definition of guidance document. One commenter
agreed with the EPA that health advisories are appropriately considered
guidance with regards to the proposed rulemaking, while another

commenter specifically requested that the EPA clarify whether water
quality criteria documents (CWA Sec. 304(a)) qualify as guidance
documents or significant guidance. Another commenter recommended that
the EPA either clearly state that scientific documents are not covered
by this rule or post all of the scientific documents that the EPA has
relied on since 2008 on the EPA Guidance Portal.
    EPA defines ``guidance document'' consistent with the definitions
in E.O. 13891 and OMB's implementing memorandum, which includes the
term ``technical issue.'' Furthermore, for purposes of this rule, the
EPA considers the term ``scientific'' to be a subset of ``technical.''
As such, the EPA has determined that the definition of ``guidance
document'' includes certain scientific and/or technical documents. For
example, the EPA has determined that drinking water health advisories
and CWA 304(a) national recommended Water Quality Criteria issued by
the Office of Water because they are statements of general
applicability, set forth a policy on a technical issue, are intended to
have future effect on the behavior of regulated parties, and are not
subject to one of the listed exclusions. However, EPA releases a great
deal of technical information (including scientific information) that
would not be subject to this regulation because it is not a statement
intended to affect the future behavior of regulated parties that sets
forth a policy on a statutory, regulatory, or technical issue, or an
interpretation of a statute or regulation. Due to the diversity of
purpose and content of scientific and technical documents, it would be
inconsistent with E.O. 13891 for the EPA to categorically determine
whether all scientific and technical documents are ``guidance
documents.''

B. Inventory of Active Guidance Documents (40 CFR 2.504)

    The EPA proposed that all active guidance documents issued by the
Agency must be included on the EPA Guidance Portal,\9\ The EPA Guidance
Portal was initially made publicly available on February 28, 2020, and
was fully populated to include all active guidance documents on July
31, 2020. Starting on the effective date of this rule, as per section
2.504 of this final rule, all active guidance documents shall appear on
the EPA Guidance Portal on the EPA website. Any guidance document (as
defined in this regulation) excluded from the EPA Guidance Portal does
not represent an active guidance document of the Agency and will have
no effect except to establish historical facts.
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    \9\ The EPA Guidance Portal is available at https://www.EPA.gov/guidance.
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    The EPA proposed to inform the public via the EPA Guidance Portal
that a new guidance document has been issued, an active guidance
document has been modified, or an active guidance document has been
withdrawn. The EPA solicited and received several comments related to
the EPA Guidance Portal, the requirement for all active guidance to be
on the EPA Guidance Portal, and the utility of using the EPA Guidance
Portal to inform the public that a new guidance document has been
issued, an active guidance document has been modified, or an active
guidance document has been withdrawn.
    Most commenters supported the creation and use of the EPA Guidance
Portal to maintain a consolidated online portal with lists of active
guidance documents as an important method for the Agency to promote
transparency, fairness, consistency, and regulatory compliance. One
commenter stated that the EPA Guidance Portal will be especially
helpful for smaller businesses with limited resources and personnel for
regulatory compliance.
    The EPA agrees with commenters that the establishment of the EPA
Guidance Portal is an important achievement in promoting greater
transparency with respect to the Agency's guidance documents.
    Several commenters noted that it is difficult for an interested
party to ascertain whether a document is not on the EPA Guidance Portal
because it does not meet the definition of a guidance document or
because it has been rescinded. Some commenters recommended that the EPA
include new sections on the EPA Guidance Portal for documents that the
EPA has determined not to be a ``guidance document'' and for guidance
documents that are rescinded. One commenter suggested that the EPA
could include a select list of rescinded guidance documents that would
be of broad interest, another suggested a list of rescinded guidance
documents would be helpful even if not comprehensive. One commenter
recommended that the EPA be over-inclusive in its initial listing so
that no essential guidance gets accidently rescinded. Commenters
requested that the EPA clarify when and the manner in which non-Agency
parties may continue to rely on guidance that are not posted to the EPA
Guidance Portal, and clarify that external parties are not subject to
the same prohibition on citing, using, or relying on such guidance as
the EPA.
    The EPA will work to continually improve the transparency of the
EPA Guidance Portal, including exploring ways to inform the public of
the status of documents not included on the EPA Guidance Portal. The
EPA recommends that questions regarding specific guidance documents
omitted from the EPA Guidance Portal should be directed to the relevant
EPA program or regional office that issued the document.
    Regarding the status of rescinded guidance documents, it is
important to note that this rule only specifies the procedures that the
Agency will follow. The EPA believes the proposed regulation was clear
that the Agency could not rely on a rescinded guidance document except
to establish historical facts. This regulation is not intended to
affect the Agency's past actions that relied upon EPA guidance
documents that are now rescinded; decisions made by the Agency are not
invalidated because guidance used in reaching those decisions is now
rescinded. Notwithstanding the general prohibition on EPA's use of
rescinded guidance documents, the EPA cannot limit how non-Agency
parties use rescinded guidance, as long as they do not represent
rescinded guidance documents as current Agency policy.
    Several commenters noted that the EPA Guidance Portal was missing
specific documents or classes of documents or that it contained
documents that should not be considered active guidance documents.
    During the public comment period for this rule, the EPA Guidance
Portal had not yet been fully populated, so some situations involving
purportedly missing documents may have been resolved in the intervening
time. The dispensation of specific documents on the EPA Guidance Portal
is outside the scope of this rulemaking. The EPA recommends that any
such questions regarding specific guidance documents should be directed
to the relevant EPA program or regional office that issued the
document. Additionally, as discussed in section III.E in this preamble,
the EPA is adopting in section 2.507 new procedures for the public to
petition for reissuance of a rescinded guidance document that the
petitioner believes should be included on the EPA Guidance Portal.
    Many commenters provided suggestions to improve the usability and
functionality of the EPA Guidance Portal, for example, by making it
easier to do a single search across all agency guidance. Suggestions
included improving the search functionality across programs, adding
automated notifications for new or modified

documents (e.g., subscribed email lists or listservs), using visual
flags to denote changes or additions, curating the list into statutory
or programmatic categories. One commenter opposed using the EPA
Guidance Portal as the only source of information regarding new or
modified guidance.
    The EPA agrees with commenters that the usability and functionality
of the EPA Guidance Portal could be improved. In consideration of these
comments, the EPA will continue to evaluate and work to improve the
functionality of the EPA Guidance Portal, such as improving search
capabilities and notification mechanisms.
    After consideration of these comments and consistent with the
requirements of E.O. 13891, the EPA is finalizing the requirement that
all active guidance documents be published on the EPA Guidance Portal
and that any guidance document excluded from the list of active
guidance documents published on the EPA Guidance Portal does not
represent an active guidance document (as defined in this regulation)
of the Agency and will have no effect, as proposed.\10\ When a new
guidance document is issued, or an active guidance document is
modified, or an active guidance document is withdrawn, the EPA will
inform the public via the EPA Guidance Portal.
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    \10\ See section 3(b) of E.O. 13891 (84 FR 55236). See Q9-Q12 in
Guidance Implementing Executive Order 13891, Dominic J. Mancini,
Acting Director, OIRA, October 31, 2019 (M-20-02).
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    The EPA agrees that the EPA Guidance Portal is the most effective
method to notify the public of changes to the list of active guidance
documents because it provides the ability to sort or search by the most
current date so that newly added or modified guidance documents appear
at the top of the list. The EPA will work to improve the functionality
of the Portal and will consider additional means of notifying the
public of changes to the list of guidance documents in the future. In
addition, the EPA will explore ways to inform the public of the status
of documents not included on the EPA Guidance Portal.
    As stated in the proposed rule, the list of active guidance
documents on the EPA Guidance Portal is intended to contain only
documents that meet the definition of ``guidance document'' and
``significant guidance documents'' as defined in this regulation.
Documents that are excluded from that definition will not typically be
included in the list of active guidance documents on the EPA Guidance
Portal, although they may still be in effect. For example, the
definition of guidance documents in this regulation excludes, among
others, internal guidance directed to the EPA or its components or
other agencies, statements of specific rather than general
applicability, and internal executive branch legal advice or legal
opinions addressed to executive branch officials, provided these
actions are not intended to have substantial future effect on the
behavior of regulated parties. Because excluded documents are not
``guidance documents'' under this regulation, their omission from the
EPA Guidance Portal does not imply that they are ``rescinded guidance
documents.''
    As noted in the proposal, the EPA Guidance Portal currently
provides the following information for each guidance document:
     A concise name for the guidance document;
     The date on which the guidance document was issued;
     The date on which the guidance document was posted to the
Guidance Portal;
     An EPA unique identifier;
     A hyperlink to the guidance document and any supporting or
ancillary documents;
     The general topic, program, and/or statute addressed by
the guidance document; and
     A brief summary of the guidance document's content.
    In addition to the information associated with each guidance
document, the EPA Guidance Portal includes a clearly visible note
expressing that (a) guidance documents lack the force and effect of
law, unless authorized by statute or incorporated into a contract; and
(b) the Agency may not cite, use, or rely on any guidance document as
defined in this rule, that is not posted on the EPA Guidance Portal,
except to establish historical facts. As noted in the preamble to the
proposed regulation, the EPA Guidance Portal will also include a link
to this final regulation after publication in the Federal Register as
well as to any future proposed or final amendments.\11\
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    \11\ The EPA Guidance Portal is available at https://www.EPA.gov/guidance.
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C. General Requirements and Procedures for Issuance of All Guidance
Documents (40 CFR 2.505)

    The EPA proposed to require certain standard elements for all
guidance documents issued after the effective date of this final rule,
consistent with E.O. 13891. Specifically, the EPA proposed to require
that each guidance document would include: The term ``guidance;'' the
issuing office; the title; a unique identification number; the date
issued; the general activities to which and persons to whom it applies
(when practicable); a citation to the statutory provision or
regulation; whether it was a revision to a previous document; a
summary; and a disclaimer as to the non-binding nature of guidance
documents.
    The EPA received comments that were generally supportive of the
minimum required elements for guidance documents. Several commenters
supported the proposed disclaimer that clarifies that guidance
documents are non-binding, would not have the force and effect of law,
and are intended to clarify existing requirements. A few commenters
recommended additional required elements, such as identification of an
EPA contact person for the guidance document.
    The EPA acknowledges the support for the minimum elements from most
commenters but disagrees that the additional recommended elements would
be appropriate to require for all guidance documents at this time. For
example, the identification of a specific EPA contact person would
become less useful over time, as individual staff change positions or
leave the Agency. Instead, the requirement to identify the issuing
office will provide sufficient transparency for the public to contact
the Agency regarding the guidance. The EPA believes the current set of
elements strikes the appropriate balance between consistency and
flexibility.
    Most commenters supported the proposed requirement that guidance
documents refrain from using mandatory language. Consistent with these
comments, the EPA is finalizing the proposed requirement that guidance
documents, given their legally nonbinding nature, will avoid including
mandatory language such as ``shall,'' ``must,'' ``required'' or
``requirement,'' unless these words are used to describe a statutory or
regulatory requirement, or the language is addressed to EPA staff and
will not foreclose consideration by the EPA of positions advanced by
affected private parties.
    Most comments were supportive regarding the requirement that the
EPA Regional Office must receive concurrence from the corresponding
Presidentially-appointed EPA official (i.e., the relevant Assistant
Administrator or an official who is serving in the acting capacity) at
EPA headquarters who is responsible for administering the national
program to which the guidance document pertains

before issuing a new guidance document developed by an EPA Regional
Office. Therefore, the EPA is finalizing this concurrence requirement
as proposed.
    For significant guidance documents, the EPA proposed to require
public notice in the Federal Register and a minimum 30-day comment
period. However, several commenters recommended that the EPA expand the
notice and comment requirement to cover most or all guidance covered by
this rulemaking, not just those defined as ``significant.'' Some
commenters stated that broader application of the notice and comment
requirements could delay issuance of non-significant guidance.
    The EPA disagrees that it is necessary to expand the notice and
comment requirements for significant guidance documents to all guidance
documents. As stated in the proposal preamble, the EPA has the
authority to seek comment on any document that the Agency determines
would benefit from public input and would do so when appropriate. In
addition, all active guidance documents that meet the definition in
this rulemaking will be available on the EPA Guidance Portal, and the
public can petition the Agency to modify or rescind any of these
guidance documents. Further, the EPA agrees that applying the notice
and comment requirements to non-significant guidance could delay
issuance. For these reasons, the EPA declines to expand the notice and
comment requirement to all guidance documents.
    Regarding determinations of whether a guidance document qualifies
as significant, a few commenters requested clarification on the process
that will be used to identify a guidance document as a significant
guidance document. The EPA disagrees that more details on this process
are required and believes that the regulation is clear. The EPA is
finalizing the proposed requirement to seek significance determinations
from OIRA for guidance documents, as appropriate, according to E.O.
12866 and E.O. 13891.
    One commenter stated that if the Guidance Portal and the procedures
within this rule are used to revoke guidance that has not been formally
replaced, it could end up creating more confusion for regulated
entities and stakeholders rather than helping to resolve it.
    The EPA disagrees that the implementation of this rulemaking will
cause confusion. In fact, this rulemaking will increase transparency
regarding the issuance, modification, and rescission of guidance
documents and benefit regulated entities and stakeholders by clarifying
which guidance documents are active and in effect. If the EPA rescinds
a guidance document that clarifies existing obligations, EPA will not
utilize an alternative policy or interpretation in taking an action
without providing sufficient and fair notice.

D. Requirements for Issuance of Significant Guidance Documents (40 CFR
2.506)

    The EPA proposed additional requirements for significant guidance
documents beyond the requirements for all guidance documents described
in section III.C. of this preamble. These proposed requirements for
significant guidance documents included announcements in the Federal
Register, minimum 30-day comment period, response to comments, approval
by Presidential appointees, review by OIRA under Executive Order 12866
before issuance, and compliance with other Executive Orders.
    The EPA received several comments on these proposed requirements
for significant guidance documents. Most commenters were supportive of
the requirements to announce new, modified, and rescinded significant
guidance documents in the Federal Register and to provide the public an
opportunity to comment. For example, some commenters noted that these
requirements would increase transparency and public participation that
may not have occurred when the EPA previously issued significant
guidance. Some commenters favored other mechanisms to announce
significant guidance documents instead of or in addition to a Federal
Register notice (e.g., using the EPA Guidance Portal, through program
specific websites, notifications to states directly, notifications to
the affected regulated community through trade associations).
    Most commenters supported the 30-day comment period requirement for
significant guidance documents. Some commenters recommended that the
final rule clarify that the 30-day comment period is a minimum and that
the EPA retains discretion to allow longer comment periods, while other
commenters recommended that a 60-day comment period should be the
minimum. Some commenters recommended additional engagement with states
on a government-to-government basis, beyond the public comment process.
One commenter recommended that the EPA make the comments received on
guidance documents publicly available. Some commenters recommended that
the EPA limit its response to comments on draft guidance to ``major
concerns'' only (as specified in E.O. 13891, section 4(a)(iii)(A)) and
recommended that the responses generally inform the public of the
Agency's thinking on key issues rather than create a detailed record.
    The EPA agrees that the notice and comment requirements for
significant guidance documents would increase transparency and public
participation. As stated in the proposal preamble, the EPA reiterates
that the 30-day public comment opportunity for significant guidance
documents is a minimum, and the EPA retains discretion to use longer
comment periods and will do so when it is warranted by the
circumstances surrounding the issuance of a specific guidance document.
As stated in the proposal preamble, the EPA does not intend to
supersede non-conflicting internal policy and procedures that the EPA
established for significant guidance documents in 2007 as part of its
implementation of the OMB's Bulletin for Agency Good Guidance Practices
(2007).\12\ The EPA will continue to follow recognized best practices,
such as those identified in the 2007 Bulletin, in responding to public
comments received on guidance documents.
---------------------------------------------------------------------------

    \12\ Office of Management and Budget. 2007. Final Bulletin for
Agency Good Guidance Practices (72 FR 3432, January 25, 2007). While
E.O. 13891 and the OMB Implementation Memorandum (M-20-02) issued on
October 31, 2019 (the 2019 Memo) supersede the 2007 Bulletin, it is
``noted that many of the practices specified by E.O. 13891 and
explained in the 2019 Memo are identical to practices discussed in
the 2007 Bulletin.'' (Q3 from the 2019 Memo).
---------------------------------------------------------------------------

    Many commenters supported the proposed exceptions to the comment
requirement for significant guidance documents for ``good cause''
because there are emergencies when it is essential for the EPA to be
able to issue guidance quickly. However, other commenters claimed that
the proposed exceptions were vague and not transparent.
    The EPA agrees that there can be instances when it is in the public
interest for the Agency to issue a significant guidance document
without a public comment period, though such instances are expected to
be rare. This good cause exception is consistent with E.O. 13891
(Section 4 (a)) and the APA requirement for regulations (5 U.S.C.
553(b)(3)(B)). After consideration of the public comments, the EPA is
finalizing the additional specific requirements for significant
guidance documents and the exceptions to the comment requirement, as
proposed, with a minor modification to clarify that approval of
significant guidance documents will occur on a

non-delegable basis, consistent with E.O. 13891.

E. Procedures for Public To Petition for Modification or Withdrawal (40
CFR 2.507)

    Consistent with E.O. 13891, the EPA proposed procedures to allow
the public to petition the EPA for the modification or withdrawal of an
active guidance document posted on the EPA Guidance Portal. The EPA
proposed formatting and content elements for petitions to enable a full
evaluation by the Agency of the merits of the requested action,
including the petitioner's name and contact information, title and the
EPA unique identifier of the guidance document that the petitioner is
requesting be modified or withdrawn, the nature of the relief sought by
the petitioner, and the rationale for their request, among other
elements.
    Additionally, the proposed rule included requirements to ensure
timely responses to petitions. The EPA would respond to petitions no
later than 90 calendar days after receipt of the petition. If the EPA
requires more than 90 calendar days to consider a petition, the EPA
would inform the petitioner that more time is required and indicate the
reason why and provide an estimated decision date. The EPA would only
extend the response date one time for a period not to exceed 90
calendar days before providing a response. The EPA noted in the
proposed rule that the response and the set timeframes for responding
to the petition are not intended to capture the implementation of the
response.
    The EPA received comments on the process for requesting
modification or withdrawal of guidance documents. Several commenters
supported the creation of petition process and noted that petitions can
help the Agency be made aware of existing guidance that is of concern
to impacted stakeholders. Many commenters were supportive of the
minimum information to be included in petitions and noted that they had
no suggestions for additional information to be included in petitions
to modify or withdraw an active guidance document.
    The EPA agrees with these supportive comments. After consideration
of public comments, the EPA is finalizing these requirements with minor
modifications. The EPA Guidance Portal will provide clear and specific
instructions to the public regarding how to request the modification or
withdrawal of an active guidance document. The EPA is finalizing that
the public may submit petitions using one of the two following methods
described on the EPA Guidance Portal: (1) An electronic submission
through the EPA's designated submission system identified on the EPA
Guidance Portal (i.e., using a link labeled ``Submit a petition for
Agency modification or withdrawal of guidance documents''), or, (2) a
paper submission to the EPA's designated mailing address listed on the
EPA Guidance Portal.
    The EPA received public comments requesting more transparency
surrounding petitions submitted to the Agency. Several commenters noted
that the EPA should make petitions received publicly available and some
supported making public the Agency's response to petitions. Commenters
also believed that the most appropriate place to identify information
related to petitions is on the EPA Guidance Portal. One commenter
suggested that the EPA publicize and provide a comment period to allow
stakeholders and members of the public to comment on such a petition.
Finally, a commenter noted that the EPA did not indicate how the Agency
would notify the public of subsequent actions taken by the Agency
pursuant to the petition.
    The EPA agrees with public comments requesting additional
transparency regarding petitions received. Therefore, the EPA is
finalizing a requirement that the Agency make available to the public,
information about petitions received, including the title of the
putative guidance document to which the petition pertains. Please note,
the information about petitions received may, from time to time,
include references to invalid petitions (such as petitions that do not
request that the Agency modify or rescind an active guidance document
or reinstate a rescinded guidance document), and references to such
invalid petitions is not an acknowledgement by the EPA that the
documents referenced by those petitions are guidance documents as
defined by these procedures.
    Although the EPA is not finalizing a requirement for Agency
responses to petitions to be made publicly available in this
regulation, the EPA will evaluate the feasibility of doing so in the
future once more information exists about the volume and complexity of
petitions. The EPA disagrees with requiring the Agency to seek public
comment on petitions received because such a process goes beyond E.O.
13891, would unduly complicate the petition process, and would be
excessively burdensome for the Agency to implement. The additional time
required for notice and comment on petitions received could delay the
timeliness of the Agency's response to petitions. The public will have
access to information regarding subsequent actions related to a
petition to modify or withdraw a guidance document through the EPA
Guidance Portal where the EPA will post newly modified guidance
documents and remove rescinded guidance documents from the list of
active guidance documents.
    A few commenters noted that proposed section 2.507 does not contain
procedures for the public to petition the EPA to add to the EPA
Guidance Portal a guidance document that a stakeholder believes should
be an active guidance document. Commenters requested that the EPA add a
specific procedure by which any party can petition for the inclusion of
an existing guidance document in the EPA Guidance Portal. One commenter
stated that if the EPA declines to add a document to the Guidance
Portal, then the EPA should be required to explain the basis for their
decision.
    The EPA agrees with these commenters that it is appropriate for the
public to have a formal mechanism to request that a rescinded guidance
document be included on the EPA Guidance Portal and is providing
procedures for the public to petition the EPA for reinstatement of a
rescinded guidance document. The EPA is limiting these procedures to
rescinded guidance documents due to concerns about the potential
administrative burden associated with processing petitions of unknown
scope and number to reclassify other categories of documents as
guidance documents. The EPA anticipates that a petition response would
provide the basis for granting or denying the petition. Prior to
petitioning the EPA to reinstate a rescinded guidance document, to
determine the status of a guidance document excluded from the EPA
Guidance Portal, the public is encouraged to contact the EPA program
office or regional office that issued the guidance document.
    EPA also received comments regarding the applicability of the
petition procedures. Specifically, one commenter noted that the scope
specified in section 2.503(b) of the proposed rulemaking was
inconsistent with the proposed petition procedures for modification or
withdrawal of a guidance document. The proposed regulation would limit
the applicability of the guidance procedures to ``to all active
guidance documents as defined in this subpart, issued by all components
of the Environmental Protection Agency (EPA) after [date of issuance
for the final rule].'' The commenter noted that limiting the

applicability of the regulations to guidance documents ``issued after''
the proposed rulemaking was inconsistent with the petition procedures
that apply to all active guidance documents on the EPA Guidance Portal,
including those issued prior to the effective date of this regulation.
    The EPA agrees that the petition process is intended to apply to
all active guidance documents and has clarified the applicability in
this final regulation. In response to comments, the EPA is clarifying
that petition procedures for modification or withdrawal apply to all
active guidance documents on the EPA Guidance Portal. For petitions for
reinstatement, the procedures apply to guidance documents not currently
on the EPA Guidance Portal.

F. Deviation From Procedures (Proposed 40 CFR 2.502(f))

    The EPA proposed to allow the Agency to deviate from the procedures
set forth in this regulation when necessary at the written direction of
the Administrator and in the Administrator's sole and unreviewable
discretion.
    Several commenters expressed concerns regarding the proposed
provision that would allow the EPA to deviate from the required
procedures. These commenters claimed that allowing deviation undermines
the purpose of the proposed rulemaking, would decrease transparency and
certainty, would be contrary to the fundamental principle of
administrative law to explain the Agency's decisions, and would lower
the likelihood of consistency through this and future administrations.
    The EPA agrees with commenters that this provision creates
uncertainty and is not finalizing this provision.

IV. Statutory and Executive Orders Reviews

    Additional information about these statues and Executive orders can
be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and
Budget (OMB) because it is a rule of agency procedure and practice and
is limited to agency management.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not contain any information collection activities
and therefore does not impose an information collection burden under
the PRA.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This is
a rule of agency procedure and practice. The EPA expects the benefits
of this rule to be improved transparency and management of the EPA's
guidance documents.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects 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.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children. Per the definition of ``covered regulatory action'' in
section 2-202 of Executive Order 13045 and because this action does not
concern an environmental health risk or safety risk, it is not subject
to Executive Order 13045.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does not establish an
environmental health or safety standard. This regulatory action is a
procedural rule and does not have any impact on human health or the
environment.

L. Congressional Review Act

    This rule is exempt from the CRA because it is a rule of agency
organization, procedure or practice that does not substantially affect
the rights or obligations of non-agency parties.

List of Subjects in 40 CFR Part 2

    Environmental protection, Administrative practice and procedure,
Organization and functions (Government agencies).

Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, the Environmental
Protection Agency amends 40 CFR part 2 as follows:

PART 2--PUBLIC INFORMATION

0
1. The authority citation for part 2 is revised to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717; Reorganization Plan No. 3 of 1970, 84 Stat.
2086 (July 9, 1970).

0
2. Add subpart D, consisting of Sec. Sec.  2.501 through 2.507, to read
as follows:

Subpart D--Guidance Procedures

Sec.
2.501 General.
2.502 Scope.
2.503 Definitions.
2.504 Public access to active guidance documents.
2.505 Guidance document general requirements and procedures.
2.506 Significant guidance document requirements and procedures.

2.507 Procedures for the public to petition for modification,
withdrawal, or reinstatement.

    Authority: 5 U.S.C. 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31
U.S.C. 3717; Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (July
9, 1970).

Sec.  2.501   General.

    This subpart establishes procedures for the issuance of
Environmental Protection Agency (EPA) guidance documents consistent
with Executive Order 13891, ``Promoting the Rule of Law Through
Improved Agency Guidance Documents'' (October 15, 2019). This subpart
also establishes procedures for the public to petition for
modification, withdrawal, or reinstatement of such guidance documents.

Sec.  2.502   Scope.

    (a) The procedures in this subpart apply to guidance documents, as
defined in Sec.  2.503, excluding those excepted under Section 4(b) of
Executive Order 13981 or that are not otherwise subject to Executive
Order 13891 or otherwise excepted by the Administrator of OIRA.
    (b) Subject to the qualifications and exemptions contained in this
subpart, the procedures in this subpart apply to all active guidance
documents as defined in this subpart, issued by all components of the
EPA after November 18, 2020. The procedures and requirements described
in Sec.  2.504 regarding public access to active guidance documents and
Sec.  2.507 regarding the procedures for the public to petition for
modification or withdrawal shall apply to all active guidance documents
regardless of when they were issued. The procedures for petitioning for
reinstatement of a rescinded guidance document apply to all guidance
documents regardless of when they were issued.
    (c) This subpart is intended to improve the internal management of
the EPA. As such, it is for the use of EPA personnel only and 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.
    (d) If Executive Order 13891, or any provision thereof, is
rescinded or superseded, this subpart remains in force.

Sec.  2.503   Definitions.

    For the purposes of this subpart, the following definitions apply:
    Active guidance document means a guidance document or significant
guidance document in effect that EPA expects to cite, use, or rely
upon.
    Guidance document means an Agency statement of general
applicability, intended to have future effect on the behavior of
regulated parties, that sets forth a policy on a statutory, regulatory,
or technical issue, or an interpretation of a statute or regulation,
subject to the following exclusions:
    (1) Rules promulgated pursuant to notice and comment under 5 U.S.C.
553, or similar statutory provisions;
    (2) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
    (3) Rules of Agency organization, procedure, or practice not
intended to have substantial future effect on the behavior of regulated
parties;
    (4) Decisions of Agency adjudications under 5 U.S.C. 554, or
similar statutory provisions;
    (5) Internal guidance directed to the EPA or its components or
other agencies that is not intended to have substantial future effect
on the behavior of regulated parties;
    (6) Internal executive branch legal advice or legal opinions
addressed to executive branch officials, including legal opinions by
the Office of General Counsel, not intended to have substantial future
effect on the behavior of regulated parties;
    (7) Agency statements of specific, rather than general,
applicability. This would exclude from the definition of ``guidance''
advisory or legal opinions directed to particular parties about
circumstance-specific questions; notices regarding particular locations
or facilities; and correspondence with individual persons or entities
about particular matters, including congressional correspondence or
notices of violation unless a document is directed to a particular
party but designed to guide the conduct of the broader regulated
public;
    (8) Agency statements in the form of speeches, press releases, or
similar communications, as well as statements of general applicability
concerning participation in the EPA's voluntary programs;
    (9) Legal briefs and other court filings;
    (10) Grant solicitations and awards; or
    (11) Contract solicitations and awards.
    Rescinded guidance document means a document that would otherwise
meet the definition of a guidance document or significant guidance
document, but that the EPA may not cite, use, or rely upon except to
establish historical facts.
    Significant guidance document means a guidance document that is
determined to be ``significant'' pursuant to Executive Order 12866 and
Executive Order 13891.

Sec.  2.504   Public access to active guidance documents.

    All active guidance documents shall appear on the EPA Guidance
Portal on the EPA website.

Sec.  2.505   Guidance document general requirements and procedures.

    (a) Minimum guidance requirements. In each guidance document, the
EPA will:
    (1) Include the term ``guidance'';
    (2) Identify the component office issuing the document;
    (3) Provide the title of the guidance and the document
identification number;
    (4) Include the date of issuance;
    (5) When practicable, identify the general activities to which and
the persons to whom the document applies;
    (6) Include the citation to the statutory provision (including the
U.S.C. citation) or regulation (to the CFR) to which the guidance
document applies or which it interprets;
    (7) Note if the guidance document is a revision to a previously
issued guidance document and, if so, identify the guidance document
that it modifies or replaces;
    (8) Include a short summary of the subject matter covered in the
guidance document at the beginning of the document; and
    (9) Include a disclaimer stating that the contents of the guidance
document do not have the force and effect of law and that the Agency
does not bind the public in any way and intends only to provide clarity
to the public regarding existing requirements under the law or Agency
policies, except as authorized by law or as incorporated into a
contract. When a guidance document is binding because binding guidance
is authorized by law or because the guidance is incorporated into a
contract, the statement will reflect that.
    (b) Approval. A guidance document issued by an EPA Regional Office
must receive concurrence from the corresponding Presidentially-
appointed EPA official (i.e., the relevant Assistant Administrator or
an official who is serving in the acting capacity) at EPA headquarters
who is responsible for administering the national program to which the
guidance document pertains.
    (c) Avoid mandatory language. A guidance document will avoid
mandatory language such as ``shall,'' ``must,'' ``required'' or
``requirement,'' unless using these words to describe a statutory or
regulatory requirement, or the language is addressed to EPA staff and
will not foreclose consideration by the EPA of positions advanced by
affected private parties.

    (d) Significance determinations. The EPA will seek significance
determinations from the Office of Information and Regulatory Affairs
(OIRA) for guidance documents pursuant to E.O. 12866.

Sec.  2.506   Significant guidance document requirements and
procedures.

    A significant guidance document will adhere to all the requirements
described in Sec.  2.505 and the requirements in this section.
    (a) Draft for public comment. (1) The EPA will make publicly
available a draft significant guidance document, including a
significant guidance document that is being reinstated, or draft
modification of a significant active guidance document, for public
comment before finalizing any significant guidance document. The EPA
will post appropriately labeled draft guidance and any supporting
documents on the EPA's website.
    (2) The EPA will publish a notice in the Federal Register
announcing the availability of a draft significant guidance document,
or draft modification of a significant active guidance document, to
open the public comment period.
    (b) Withdrawal of a significant guidance document. (1) The EPA will
seek public comment on the Agency's intent to withdraw a significant
active guidance document.
    (2) The EPA will publish a notice in the Federal Register
announcing the Agency's intent to withdraw a significant active
guidance document to open the public comment period.
    (c) Public comment process. (1) Except as provided in paragraph (d)
of this section, a draft significant guidance document, or a draft
modification or withdrawal of a significant active guidance document,
will have a minimum of 30 days public notice and comment before
issuance of a final significant guidance document or issuance of the
final modified significant guidance document, or withdrawal of an
active significant guidance document. Public comments shall be
available to the public online, either in a docket or on the EPA
website.
    (2) The EPA shall respond to major concerns and comments in the
final significant guidance document itself or in a companion document.
    (d) Exceptions to comment process. The EPA will not seek or respond
to public comment before the EPA implements a significant guidance
document if at the sole discretion of the Administrator:
    (1) Doing so is not feasible or appropriate because immediate
issuance is required by a public health, safety, environmental, or
other emergency requiring immediate issuance of the significant
guidance document or a statutory requirement or court order that
requires immediate issuance; or
    (2) When the Agency for good cause finds (and incorporates such
finding and a brief statement of reasons therefor into the significant
guidance document) that notice and public comment thereon are
impracticable, unnecessary, or contrary to the public interest.
    (e) Additional notices. The EPA also will publish a notice in the
Federal Register when it finalizes a significant guidance document,
reinstates a significant guidance document, or finalizes a modification
or withdrawal of a significant active guidance document.
    (f) Approval. On a non-delegable basis, the EPA Administrator or
other Presidentially-appointed EPA official, or an official who is
serving in the acting capacity of either of the foregoing, will approve
a significant guidance document prior to its issuance and posting in
the EPA Guidance Portal website.
    (g) Executive order compliance. A significant guidance document
shall comply with the requirements of Executive Orders 12866, 13563,
13609, 13771, 13777, and 13891.

Sec.  2.507   Procedures for the public to petition for modification,
withdrawal, or reinstatement.

    (a) Submission of a petition. (1) The public may submit a petition
to the EPA for the modification or withdrawal of an active guidance
document, or reinstatement of a rescinded guidance document.
    (2) In order to be considered a valid petition under this section,
the petition must address the guidance document in question itself and
not merely underlying statutory or regulatory text.
    (b) Petition methods. A petitioner should only submit a petition to
the EPA using one of the two methods in paragraphs (b)(1) and (2) of
this section and not submit additional copies by any other method. A
petition should be submitted through:
    (1) An electronic submission through the EPA's designated
submission system identified on the EPA Guidance Portal website; or
    (2) A paper submission to the EPA's designated mailing address
listed on the EPA Guidance Portal website.
    (c) Petition format. A petition under this section should include:
    (1) The petitioner's name and a means for the EPA to contact the
petitioner such as an email address or mailing address, in addition to
any other contact information (such as telephone number) that the
petitioner chooses to include; and
    (2) A heading, preceding its text that states, ``Petition to Modify
a Guidance Document,'' ``Petition to Withdraw a Guidance Document,'' or
``Petition to Reinstate a Guidance Document''
    (d) Petition content. A petition for modification or withdrawal of
an active guidance document, or a petition for reinstatement of a
rescinded guidance document, should include the following elements:
    (1) Identification of the specific title the guidance document that
the petitioner is requesting be modified, withdrawn, or reinstated;
    (2) For petitions to modify or withdraw a guidance document only,
the EPA unique identifier of the guidance document;
    (3) The nature of the relief sought (i.e., modification,
withdrawal, or reinstatement);
    (4) An explanation of the interest of the petitioner in the
requested action (i.e., modification, withdrawal, or reinstatement);
    (5) For petitions to modify or withdraw a guidance document only,
and only if practicable, specification of the text that the petitioner
request be modified or withdrawn, and, where possible, suggested text
for the Agency to consider; and
    (6) A rationale for the requested modification, withdrawal, or
reinstatement.
    (e) Petitions received. The EPA will make available to the public
information about petitions received, including the title of the
guidance document to which the petition pertains.
    (f) Petition handling. Failure to follow one of the submission
methods described in paragraph (b) of this section and to include in a
petition the elements in paragraphs (c) and (d) of this section may
create delays in processing time and may result in the EPA being unable
to evaluate the merits of the petition.
    (1) The EPA may treat a petition that is not submitted as specified
in paragraph (b) of this section, but that meets the other elements of
this section, as a properly filed petition and received as of the time
it is discovered and identified.
    (2) The EPA may treat a document that fails to conform to one or
more of the elements of paragraphs (c) and (d) of this section as if it
is not a petition under this section. The EPA may treat such a document
according to the existing correspondence or other

appropriate procedures of the EPA, and any suggestions contained in it
will be considered at the discretion of the Administrator.
    (g) Petition response timing. (1) The EPA should respond to a
petition in a timely manner, but no later than 90 calendar days after
receipt of the petition.
    (2) If, for any reason, the EPA needs more than 90 calendar days to
respond to a petition, the EPA will inform the petitioner that more
time is needed and indicate the reason why and an estimated response
date. The EPA will only extend the response date one time not to exceed
90 calendar days before providing a response.
    (h) Petition response. The EPA may provide a single response to
issues raised by duplicative petitions and petitions submitted as part
of a mass petitioning effort.

[FR Doc. 2020-20519 Filed 10-16-20; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Rules and Regulations]
[Pages 55553-55554]
[FR Doc No: 2011-22876]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2011-0087; Airspace Docket No. 11-ASO-12]

Amendment of Class D Airspace; Eglin AFB, FL

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action amends Class D Airspace in the Eglin Air Force
Base (AFB), FL airspace area. The Destin Non-Directional Beacon (NDB)
has been decommissioned and new Standard Instrument Approaches have
been developed for Destin-Fort Walton Beach Airport that enhances the
safety and management of Instrument Flight Rules (IFR) operations at
the airport.
    This action also corrects the geographic coordinates of Eglin AFB,
Duke Field, and Hulbert Field.

DATES: Effective 0901 UTC, October 20, 2011. The Director of the
Federal Register approves this incorporation by reference action under
title 1, Code of Federal Regulations, part 51, subject to the annual
revision of FAA Order 7400.9 and publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT: John Fornito, Operations Support
Group, Eastern Service Center, Federal Aviation Administration, P.O.
Box 20636, Atlanta, Georgia 30320; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

History

    On July 1, 2011, the FAA published in the Federal Register a notice
of proposed rulemaking to amend Class D airspace in the Eglin AFB, FL
area (76 FR 38580) Docket No. FAA-2011-0087. Subsequent to publication,
the FAA found that the latitude coordinates for Eglin AFB were not
rounded up. This rule makes that correction. Also, this action adjusts
the geographic coordinates for Duke Field and Hurlburt Field.
Interested parties were invited to participate in this rulemaking
effort by submitting written comments on the proposal to the FAA. One
comment was received supporting this action. Class D airspace
designations are published in

paragraph 5000 of FAA Order 7400.9U dated August 18, 2010, and
effective September 15, 2010, which is incorporated by reference in 14
CFR 71.1. The Class D airspace designations listed in this document
will be published subsequently in the Order. With the exception of
editorial changes, and the changes described above, this rule is the
same as that proposed in the NPRM.

The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR)
part 71 amends the Class D airspace in the Eglin AFB, FL area to
accommodate new standard instrument approach procedures developed for
Destin-Fort Walton Beach Airport. The Destin NDB has been
decommissioned, and the NDB approach cancelled. The existing Class D
airspace extending upward from the surface is being modified for the
safety and management of IFR operations. This action also rounds up the
latitude coordinates of Eglin AFB from `lat. 30[deg]28.59'59'' N. to
30[deg]29'00'' N., and adjusts the geographic coordinates of Duke Field
and Hurlburt Field to be in concert with the FAAs aeronautical
database.
    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current, is
non-controversial and unlikely to result in adverse or negative
comments. It, therefore, (1) is not a ``significant regulatory action''
under Executive Order 12866; (2) is not a ``significant rule'' under
DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a Regulatory Evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority.
    This rulemaking is promulgated under the authority described in
subtitle VII, part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it amends controlled airspace in the Eglin AFB, FL area.

Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation
Administration Order 7400.9U, Airspace Designations and Reporting
Points, dated August 18, 2010, effective September 15, 2010, is amended
as follows:

Paragraph 5000 Class D airspace.

* * * * *

ASO FL D Eglin Air Force Base, FL [Amended]

Eglin Air Force Base, FL
    (Lat. 30[deg]29'00'' N., long. 86[deg]31'34'' W.)
Destin-Fort Walton Beach Airport
    (Lat. 30[deg]24'00'' N., long. 86[deg]28'17'' W.)
Duke Field
    (Lat. 30[deg]39'01'' N., long. 86[deg]31'22'' W.)
Hurlburt Field
    (Lat. 30[deg]25'44'' N., long. 86[deg]41'22'' W.)

    That airspace extending upward from the surface to and including
2,600 feet MSL within a 5.5-mile radius of Eglin AFB, and within a
4.4-mile radius of Destin-Fort Walton Beach Airport, excluding the
portion north of a line connecting the 2 points of intersection
within a 5.2-mile radius centered on Duke Field; excluding the
portion southwest of a line connecting the 2 points of intersection
within a 5.3-mile radius of Hurlburt Field; excluding a portion east
of a line beginning at lat. 30[deg]30'43'' N., long. 86[deg]26'21''
W. extending east to the 5.5-mile radius of Eglin AFB.

    Issued in College Park, Georgia, on August 29, 2011.
Barry A. Knight,
Acting Manager, Operations Support Group, Eastern Service Center, Air
Traffic Organization.
[FR Doc. 2011-22876 Filed 9-7-11; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 86, Number 89 (Tuesday, May 11, 2021)]
[Notices]
[Page 25931]
[FR Doc No: 2021-09900]

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SECURITIES AND EXCHANGE COMMISSION

[SEC File No. 270-663, OMB Control No. 3235-0724]

Proposed Collection; Comment Request

Upon Written Request Copies Available From: U.S. Securities and
Exchange Commission, Office of FOIA Services, 100 F Street NE,
Washington, DC 20549-2736

Extension:
    Supplier Diversity Business Management System

    Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the existing
collection of information summarized below. The Commission plans to
submit this existing collection of information to the Office of
Management and Budget (``OMB'') for approval.
    The Commission is required under Section 342 of the Dodd Frank Wall
Street and Reform Act to develop standards and processes for ensuring
the fair inclusion of minority-owned and women-owned businesses in all
of the Commission's business activities. To help implement this
requirement, the Office of Minority and Women Inclusion (OMWI)
developed and maintains an electronic Supplier Diversity Business
Management System (SDBMS) to collect up-to-date business information
and capabilities statements from diverse suppliers interested in doing
business with the Commission. This information allows the Commission to
update and more effectively manage its current internal repository. It
also allows the Commission to measure the effectiveness of its
technical assistance and outreach efforts, and target areas where
additional program efforts are necessary.
    The Commission invites comment on SDBMS. Information is collected
in SDBMS via web-based, e-filed, dynamic form-based technology. The
company point of contact completes a profile consisting of basic
contact data and information on the capabilities of the business. The
profile includes a series of questions, some of which are based on the
data that the individual enters. Drop-down lists are included where
appropriate to increase ease of use.
    The information collection is voluntary. There are no costs
associated with this collection.
    The public interface to SDBMS is available via a web-link provided
by the agency.

Estimated number of annual responses = 300
Estimated annual reporting burden = 150 hours (30 minutes per
submission)

Other than a temporary dip in the number of respondents due to the
COVID-19 pandemic, the estimated number of respondents overall remains
the same at 300 per year, based on the actual response rate prior to
the pandemic. As such, the total burden estimate also remains the same
at 150 hours.
    Written comments are invited on: (a) Whether this collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of the burden
imposed by the collection of information; (c) ways to enhance the
quality, utility, and clarity of the information collected; and (d)
ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted in writing within 60
days of this publication. Please direct your written comments to David
Bottom, Director/Chief Information Officer, Securities and Exchange
Commission, c/o Cynthia Roscoe, 100 F Street NE, Washington DC, 20549;
or send an email to<EMAIL_ADDRESS>
    Dated: May 5, 2021.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-09900 Filed 5-10-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Notices]
[Pages 19393-19394]
[FR Doc No: 2012-7707]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66659; File No. SR-CME-2012-08]

Self-Regulatory Organizations; Chicago Mercantile Exchange, Inc.;
Notice of Filing and Order Granting Accelerated Approval of Proposed
Rule Change To Comply With Revisions to the Commodity Futures Trading
Commission's Part 190 Regulations

March 26, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'')\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 12, 2012, the Chicago Mercantile Exchange Inc. (``CME'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change described in Items I and II below, which items
have been prepared primarily by CME. The Commission is publishing this
Notice and Order to solicit comments on the proposed rule change from
interested persons and to approve the proposed rule change on an
accelerated basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of Terms of Substance of
the Proposed Rule Change

    CME proposes to amend certain of its rules to comply with pending
revisions to the Commodity Futures Trading Commission's (``CFTC'') Part
190 Regulations.

II. Self-Regulatory Organization's Statement of Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, CME included statements
concerning the purpose and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below. CME has prepared summaries, set forth in sections A, B,
and C below, of the most significant aspects of such statements.\3\
---------------------------------------------------------------------------

    \3\ The Commission has modified the text of the summaries
prepared by CME.
---------------------------------------------------------------------------

A. Self-Regulatory Organization's Statement of Purpose of, and
Statutory Basis for, the Proposed Rule Change

    CME is registered as a derivatives clearing organization (``DCO'')
with the CFTC and operates a substantial business clearing futures and
swaps contracts subject to the jurisdiction of the CFTC. CME is also
registered as a clearing agency with the Commission. CME proposes to
amend certain of its rules to comply with pending amendments to the
CFTC's Part 190 Bankruptcy Regulations that will become effective on
April 9, 2012.
    The Part 190 amendments were made in connection with the CFTC's
final rules for customer swaps segregation. Those revisions include
creating a ``cleared swap'' customer account class for purposes of
futures commission merchant and DCO bankruptcies and replacing the
defined term ``cleared OTC derivatives,'' which is incorporated by
reference into several CME rules, with the new defined term ``cleared
swaps.'' In order to reflect the removal of the defined term ``cleared
OTC derivatives'' from Part 190, CME will amend CME Rules 930.N, 8F100,
and 8F122 and CME definitions of ``Cleared OTC Derivatives Customers''
and ``Funds of Cleared OTC Derivatives Customers.'' The amendments
comport with CFTC DCO Core Principle C (Participant and Product
Eligibility) and Core Principle F (Treatment of Funds).
    The text of the CME's proposed rule amendments was attached as
Exhibit 5 to this proposed rule change filing, which filing can be
viewed at the CME Web site at http://www.cmegroup.com/market-regulation/files/SEC_19b-4_x12-08x.pdf. CME also made a filing, CME
Submission 12-066, with its primary regulator, the CFTC, with respect
to this proposed rule change.
    CME believes the proposed changes are consistent with the
requirements of the Act and the rules and regulations issued
thereunder. CME, a DCO, is required to implement the proposed changes
to comply with recent changes to CFTC regulations. CME notes that the
policies of the Commodity Exchange Act with respect to clearing are
comparable to a number of the policies underlying the Act, such as
promoting market transparency for derivatives markets, promoting the
prompt and accurate clearance and settlement of transactions, and
protecting investors and the public interest.

B. Self-Regulatory Organization's Statement on Burden on Competition

    CME does not believe that the proposed rule change will have any
impact, or impose any burden, on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    CME has not solicited, and does not intend to solicit, comments
regarding

this proposed rule change. CME has not received any unsolicited written
comments from interested parties.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
     Electronic comments may be submitted by using the
Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml), or send an email to<EMAIL_ADDRESS>Please include
File No. SR-CME-2012-08 on the subject line.
     Paper comments should be sent in triplicate to Elizabeth
M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street
NE., Washington, DC, 20549-1090.
    All submissions should refer to File Number SR-CME-2012-08. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of CME. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-CME-2012-08 and should be
submitted on or before April 20, 2012.

IV. Commission's Findings and Order Granting Accelerated Approval of
Proposed Rule Change

    In its filing, CME requested that the Commission approve this
request on an accelerated basis for good cause shown. CME believes
there is good cause to approve this filing on an accelerated basis
because the proposed changes are required to comply with new CFTC
regulations that will become effective on April 9, 2012.
    Section 19(b) of the Act \4\ directs the Commission to approve a
proposed rule change of a self-regulatory organization if it finds that
such proposed rule change is consistent with the requirements of the
Act and the rules and regulations thereunder applicable to such
organization. The Commission finds that the proposed rule changes are
consistent with the requirements of the Act, in particular the
requirements of Section 17A of the Act,\5\ and the rules and
regulations thereunder applicable to CME. Specifically, the Commission
finds that the proposed rule change is consistent with Section
17A(b)(3)(F) of the Act which requires, among other things, that the
rules of a clearing agency be designed to assure the safeguarding of
securities and funds which are in the custody and control of the
clearing agency because it will allow CME to comply with the Part 190
amendments made in connection with the CFTC's final rules for customer
swaps segregation.\6\
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    \4\ 15 U.S.C. 78s(b).
    \5\ 15 U.S.C. 78q-1. In approving this proposed rule change, the
Commission has considered the proposed rule's impact on efficiency,
competition, and capital formation. 15 U.S.C. 78c(f).
    \6\ 15 U.S.C. 78q-1(b)(3)(F).
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    The Commission finds good cause, pursuant to Section 19(b)(2) of
the Act,\7\ for approving the proposed rule change prior to the 30th
day after the date of publication of notice in the Federal Register
because the proposed rule change institutes the regulations of another
regulatory agency, and those regulations were subject to notice and
comment.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-CME-2012-08) is approved on an
accelerated basis.

    For the Commission by the Division of Trading and Markets,
pursuant to delegated authority.\8\
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    \8\ 17 CFR 200.30-3(a)(12).
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Kevin O'Neill,
Deputy Secretary.
[FR Doc. 2012-7707 Filed 3-29-12; 8:45 am]
BILLING CODE 8011-01-P