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e-CFR data is current as of March 5, 2021

Title 40Chapter VSubchapter B → Part 1519


Title 40: Protection of Environment


PART 1519—GUIDANCE DOCUMENTS


Contents
§1519.1   Purpose.
§1519.2   Guidance document procedures.
§1519.3   Procedures for the public to request withdrawal or modification of a guidance document.
§1519.4   Significant guidance documents.

Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375; and E.O. 13891, 84 FR 55235.

Source: 86 FR 1280, Jan. 8, 2021 unless otherwise noted.

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§1519.1   Purpose.

(a) This part implements Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” and reflects the policies described in that order. The provisions in this part address the Council on Environmental Quality's procedures for the development and issuance of agency guidance documents. This part explains what constitutes guidance documents, and sets forth the minimum requirements for guidance documents, the procedures to request withdrawal or modification of guidance documents, and the additional requirements and procedures for significant guidance documents.

(b) This part is intended to improve the internal management of the Council on Environmental Quality. It is not intended to and does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers or employees, or any other person.

(c) If Executive Order 13891 or any provision thereof is rescinded or superseded, this part remains in effect.

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§1519.2   Guidance document procedures.

(a) Definition of guidance documents. For purposes of this part, guidance documents are agency statements of general applicability, intended to have future effect on the behavior of regulated parties, that set forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation.

(b) Documents excluded from the definition of guidance documents. Guidance documents do not include:

(1) Agency statements of specific, rather than general, applicability.

(2) Agency statements that do not set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation.

(3) Legislative rules promulgated under 5 U.S.C. 553 (or similar statutory provisions), or exempt from rulemaking requirements under 5 U.S.C. 553(a).

(4) Rules of agency organization, procedure, or practice that are not anticipated to have substantial future effect on the behavior of regulated parties or the public.

(5) Decisions of agency adjudication.

(6) Documents or agency statements that are directed solely to the Council on Environmental Quality or other agencies (or personnel of such agencies) that are not anticipated to have substantial future effect on the behavior of regulated parties or the public.

(7) Legal briefs and other court filings.

(8) Legal advice or opinions from the Council on Environmental Quality's Office of the General Counsel.

(9) Categories of guidance documents made exempt from Executive Order 13891 by the Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs through memoranda issued pursuant to section 4(b) of Executive Order 13891.

(c) Elements of guidance documents. In general, each guidance document must:

(1) Provide the title of the guidance document;

(2) Provide a unique document identification number;

(3) Identify the Council on Environmental Quality and any office, as appropriate, issuing the guidance document;

(4) Include the date of issuance;

(5) Include the term “guidance”;

(6) Include a disclaimer clarifying that it does not have the force and effect of law; is not meant to bind the public in any way; and is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. When a guidance document is binding because the law authorizes binding guidance or because a contract incorporates the guidance, the Council on Environmental Quality must modify the disclaimer to reflect accordingly;

(7) If it is a revision to or a replacement of a previously issued guidance document, identify the guidance document that it revises or replaces;

(8) Include a short summary of the subject matter covered in the guidance document at the top of the document;

(9) Identify the activities to which and the persons to whom the guidance document applies;

(10) Include the citation to the statutory provision or regulation to which the guidance document applies or which it interprets; and

(11) Be posted on the Council on Environmental Quality's website.

(d) Review and clearance. The Office of the General Counsel must review and clear all proposed guidance documents before issuance.

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§1519.3   Procedures for the public to request withdrawal or modification of a guidance document.

(a) Any member of the public may petition the Council on Environmental Quality to withdraw or modify a guidance document.

(b) The petitioner must submit the request for the withdrawal or modification of a guidance document in writing to the Office of the General Counsel. The petition must contain a statement of the reasons for the petition and any supporting documents to support the petitioner's request.

(c) Upon receipt of a petition for withdrawal or modification of a guidance document, the Office of the General Counsel will consult with the relevant offices and coordinate the response to the petition.

(d) The Council on Environmental Quality should respond to a petition in writing, including electronically, within 90 days of receipt of a petition. The response should state whether the petition is granted, granted in part and denied in part, denied, or provisionally denied for lack of adequate information. If the petition is provisionally denied for lack of adequate information, the response should indicate what additional information is necessary to adjudicate the petition. The Office of the General Counsel should respond to the petition in writing no later than 90 days after receipt of the necessary additional information. The response should state whether the petition is granted, granted in part and denied in part, or denied.

(e) The Council on Environmental Quality may consider in a coordinated manner or provide a coordinated response to similar petitions for withdrawal or modification.

(f) The Council on Environmental Quality need not respond to petitions under this part for withdrawal or modification of documents that do not meet the definition of a guidance document.

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§1519.4   Significant guidance documents.

(a) Significant guidance documents definition. For the purposes of this section, significant guidance documents are guidance documents that may be reasonably anticipated to:

(1) Lead to an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles of Executive Order 12866.

(b) Actions the Council on Environmental Quality will take before issuing significant guidance documents. When the Office of Management and Budget's Office of Information and Regulatory Affairs determines that a guidance document is a significant guidance document, the Council on Environmental Quality must:

(1) Submit the guidance document for review by the Office of Information and Regulatory Affairs under Executive Order 12866;

(2) Publish the draft significant guidance document in the Federal Register for a public notice and comment period of at least 30 days;

(i) This provision will not apply if the Council on Environmental Quality for good cause finds that notice and public comment is impracticable, unnecessary, or contrary to the public interest.

(ii) If such a finding is made, the Council on Environmental Quality must incorporate such a finding and a brief statement of its reasoning into the significant guidance document.

(3) Obtain approval on a non-delegable basis from the Chairman or an official who is serving in an acting capacity as the Chairman.

(4) Provide a public response to major concerns raised in comments on the draft significant guidance document.

(5) Announce the availability of the final significant guidance document.

(6) Comply with the applicable requirements for regulations or rules, including significant regulatory actions, set forth in Executive Orders 12866, “Regulatory Planning and Review,” 13563, “Improving Regulation and Regulatory Review,” 13609, “Promoting International Regulatory Cooperation,” 13771, “Reducing Regulation and Controlling Regulatory Costs,” and 13777, “Enforcing the Regulatory Reform Agenda.”

(c) Exemption. This section will not apply if the Chairman or an official who is serving in an acting capacity as the Chairman of the Council on Environmental Quality and the Administrator of the Office of Information and Regulatory Affairs agree that exigency, safety, health, or other compelling cause warrants an exemption from some or all requirements.

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