December 28, 2020

Public Comments Processing Attn: Docket No. DOI-2020-0001
Department of the Interior; MS: 7328 1849 C Street NW
Washington, DC 20240

Re: Department of the Interior interim final rule to revise rulemaking procedures to implement Executive Order 13891 entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents.

Dear Mr. Patnaik:

Please accept and fully consider the following comments on the interim final rule (IFR) to revise rulemaking procedures to implement Executive Order 13891 entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents (Docket No. DOI-2020-0001). These comments are submitted by representatives of non-profit organizations who advocate on behalf of public lands and thirteen law professors who teach and research in the fields of administrative law, environmental law, natural resources law, and public lands.

I. This action does not meet the requirements for an Interim Final Rule and is subject to the requirements for notice and comment rulemaking.

DOI claims this action falls under the good cause exception under section 553 of the Administrative Procedure Act. Id. § 553(d)(3). The Good Cause Exception provides that notice and comment requirements do not apply “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(b) (emphasis added). As the Good Cause Exception states, an agency must provide reasons why a notice and comment period would be impracticable, unnecessary, or contrary to the public interest before issuing an interim final rule.

The IFR asserts that this action fits under the Good Cause Exception for the following reasons:

There is good cause to forgo notice and public comment on a proposed rule in this instance and instead take immediate action because this IFR codifies the Department’s existing procedures and implements new procedures regarding the development, review, and clearance of guidance documents as directed by E.O 13891. Additionally, it does not reach any right or benefit, substantive, or procedural, as an enforceable action against the United States or the Department. The Department finds good cause in accordance with 5 U.S.C. § 553(d)(3) to make the IFR effective less than 30 days after the date of publication to allow for swift implementation of this program.

85 Fed. Reg. 67,667. DOI has not made any showing that adopting the IFR was proper. The standard for utilizing the Good Cause exception to the usual processes requires that the ordinary rulemaking procedure is impracticable, unnecessary, or contrary to the public interest. In this instance, DOI asserts that simply stating there is good cause fulfills the requirements of the law. Citing an executive order does not strengthen DOI’s position. Direction in an executive order cannot override statutory requirements, like those for notice and comment procedures, or justify application of the Good Cause Exception. Even assuming that the Department is taking the position that it meets the Good Cause Exception here because notice and comment are “unnecessary,” DOI is mistaken.

Just because a proposed action will have minimum or small impact does not mean the notice and comment period is unnecessary. In Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1146 (D.C. Cir. 1992), the court rejected the agency’s justification for using the Good Cause Exception by minimizing environmental impact. “Were the opposite true, agencies could issue interim rules of limited effect for any plausible reason, irrespective of the degree of urgency. Should this be allowed, the good cause exception would soon swallow the notice and comment rule.” In Mack Trucks, Inc., v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012), the court expanded on the definition of unnecessary to be “confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public”, ultimately ruling that the rule helping manufacturers was neither routine nor inconsequential.

This IFR is not routine or inconsequential. Contrary to DOI’s statement in the IFR, this rulemaking will create additional and new significant burdens for issuing guidance that will significantly impact the public and public lands. While some guidance is legally non-binding, it does not mean it is inconsequential—it can be very persuasive for managers of our public lands. In fact, DOI makes this point discussing economic impacts in this IFR:

In recognition of the fact that although guidance documents are not legally binding, they could nevertheless have a substantial economic impact on regulated entities that alter their conduct to conform to the guidance, this IFR directs Bureaus and Offices within the Department to undertake a benefits and cost assessment of the impact of the guidance document when appropriate.

85 Fed. Reg. 67,667. DOI has not met its burden for showing this IFR to be unnecessary. Additionally, DOI has not shown that a notice and comment rulemaking would be impracticable or contrary to the public interest.

As to “impracticability,” courts look at whether there is a need to proceed with the rule based on the consequences of not putting it in place. For example, in Mack Trucks, the court ruled the interim final rule did not meet the impracticable standard because the rule at issue was essentially bailing out a manufacturer (“to rescue a lone manufacturer from the folly of its own choices”); the rule did not “stave off any imminent threat to the environment or safety or national security or “remedy any real emergency at all.” Mack Trucks, 682 F.3d at 93. Here, DOI has not shown and does not even attempt to provide reasons that there is an urgent need for action, let alone that this rule is the only possible way to address it.

As for the “contrary to the public interest” standard, courts require substantial evidence as to why the action is needed and, if it was not, would result in harm being done in the interim; emergencies are valid reasons. See, Mack Trucks, 682 F.3d at 95. As with impracticality, DOI has not provided any reason why notice and comment would be contrary to the public interest. In fact, it is very much in the public interest to have a notice and comment rulemaking when discussing how guidance is to be issued. DOI manages around 480 million acres of public land, owned by all Americans. The public should have a meaningful opportunity and the proper process for reviewing and commenting on this rule.

Further, good cause is not established by the fact that that the rule purportedly “codifies . . . existing procedures.” DOI does not identify the source of those “existing procedures,” and procedures imposed by the IFR appear nowhere in the Code of Federal Regulations. An agency cannot permissibly circumvent notice and comment procedures by informally adopting a practice and then contending that codification of that practice is merely technical. Cf. United Airlines, Inc. v. Brien, 588 F.3d 158, 180 (2d Cir. 2009) (rejecting argument that amendment to regulations was “merely technical” and therefore good cause existed to avoid notice and comment procedures.”). This IFR is particularly troubling because it seeks to bind a future presidential administration to the informal practice of the current administration; binding a future administration is not a legitimate reason to forgo notice and comment rulemaking.

There is no justification for rushing to issue a rule with such a sweeping effect. DOI should withdraw this IFR and, if this rulemaking is deemed necessary, then DOI must proceed in accordance with the notice and comment rulemaking process established by the Administrative Procedure Act. The current use of an IFR is arbitrary and capricious.

II. The IFR creates additional reviews of all guidance documents.

The IFR makes clear that additional procedures and processes will be applied to all guidance documents issued by DOI and the bureaus/offices within DOI. This includes all guidance documents being reviewed by the relevant Division of the Office of the Solicitor and, in some cases, review and clearance by the Immediate Office of the Solicitor. All guidance documents must also be evaluated for significant economic impacts and, if found significant, must perform Regulatory Impact Analysis just as for an economically significant rulemaking. All guidance documents must also provide the same level of analysis when providing an explanation to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) as to whether the agency believes the guidance to be economically significant as would be required under the Congressional Review Act (a law reserved for addressing regulations; not guidance).

As defined in the IFR, guidance documents are “not confined to formal written documents; guidance may come in a variety of forms, including (but not limited to) letters, memoranda, circulars, bulletins, advisories, and may include video, audio, and Web-based formats.” 85 Fed.Reg. 67,668.

Not all DOI guidance documents are equal in impact. However, this IFR creates a higher level of scrutiny for guidance documents across the board. For example, under this definition, BLM

Information Bulletin 2020-015, entitled “New children’s activity book, My Public Lands Junior Ranger: Make Your Splash!” would be subject to this scrutiny. That the IFR sweeps so broadly without any justification is an independent reason that it is arbitrary and capricious.

If DOI wants to proceed with this rulemaking, then DOI should consider both scaling back the reviews required for all guidance documents and defining specifically what type of guidance documents are in need of which type of review. The current rule is overbroad and places unreasonable constraints on the Department, bureaus and offices.

III. The Department has conflated significant guidance with rulemakings.

In addition to procedures and process for all guidance documents discussed above, the new rule would prescribe additional measures for “significant guidance documents.” These steps include review by Office of the Executive Secretariat and Regulatory Affairs (OES) and OIRA, Interior Secretary approval, the possibility of OES making a designation request, a report to Congress under the Congressional Review Act and notice and comment procedures. All of this together is essentially a notice and comment rulemaking process for agency guidance that is generally not as influential or binding as a rulemaking.

It is ironic that DOI seeks to require notice and comment procedures for guidance documents exempted from those procedures by the Administrative Procedure Act through a rulemaking that does not itself comport with notice and comment procedures. The breadth of the IFR reinforces the necessity of a full notice and comment rulemaking process. If DOI proceeds with this rulemaking, then it should thoroughly evaluate if and when a guidance document, even a significant guidance document, actually merits the equivalent of a rulemaking process and, if such situations can be justified, then set out applicable standards. As the rule currently reads, it is overbroad and unreasonable.

IV. Conclusion

We appreciate the opportunity to comment on the IFR, but also hope to have the opportunity to comment and provide recommendations on a future rulemaking, as the use of an IFR is invalid. Should DOI want to define rules applicable to guidance documents that truly meet its needs and the needs of the American people, then the Department can and should undertake an actual rulemaking. This IFR should not be finalized. Please keep us apprised of any updates on this matter.


Phil Hanceford, Conservation Director
The Wilderness Society
1660 Wynkoop St., Suite 1150
Denver, CO 80202

Nada Culver, Vice President, Public Lands and Senior Policy Counsel
National Audubon Society
1580 Lincoln Street, Suite 1280
Denver, CO 80203

Brett Hartl, Government Affairs Director
Center for Biological Diversity

Erik Molvar, Executive Director
Western Watersheds Project
319 South 6th Street
Laramie WY 82070

Linda Castro, Assistant Policy Director
California Wilderness Coalition
10154 Sophia Avenue
North Hills, CA 91343

Kimberly Baker, Executive Director
Klamath Forest Alliance
2274 Eastern Ave.
Arcata, CA 95521

Thomas Wheeler, Executive Director
Environmental Protection Information Center (EPIC)
145 G. St., Suite A
Arcata, CA 95521

Mike Petersen, Executive Director
The Lands Council

Matthew H. Davis, MPH,
Legislative Director
League of Conservation Voters

Michael Stocker – Director
Ocean Conservation Research
P.O. Box 559
Lagunitas, CA 94938

Susan Jane M. Brown, Staff Attorney
Western Environmental Law Center

Blaine Miller-McFeeley, Senior Legislative Representative
1001 G Street NW, Suite 1000
Washington, DC 20001

Allison N. Melton, Staff Attorney
Center for Biological Diversity
PO Box 3024
Crested Butte, CO 81224

Aaron Mintzes, Senior Policy Counsel
1612 K St. NW, Suite 904
Washington, DC 20006

Phil Francis, Chair
Coalition to Protect America’s National Parks

Law Professor Signatories
(institutional affiliations are provided for identification purposes only)

Todd S. Aagaard
Professor of Law
Visiting Fellow, Resources for the Future (Washington, DC)
Villanova University Charles Widger School of Law

Robert H. Abrams
Professor of Law
Florida A & M University College of Law

Alejandro E. Camacho
Chancellor’s Professor of Law
Faculty Director, Center for Land, Environment, and Natural Resources
University of California, Irvine

Myanna Dellinger
Professor of Law
University of South Dakota School of Law

Holly Doremus
James H. House and Hiram H. Hurd Professor of Environmental Regulation
UC Berkeley School of Law

Tim Duane,
Professor in Residence, University of San Diego School of Law and
Professor Emeritus of Environmental Studies, University of California, Santa Cruz

Robert L. Glicksman
J.B & Maurice C. Shapiro Professor of Environmental Law
The George Washington University Law School

Shi-Ling Hsu
D’Alemberte Professor
Florida State University College of Law

Sam Kalen
William T. Schwartz Distinguished Professor of Law
Associate Dean
Co-Director, CLERR
University of Wyoming College of Law

Joel A. Mintz
Professor of Law Emeritus
and C. William Trout Senior Fellow in Public Interest Law
Nova Southeastern University College of Law

Justin R. Pidot
Professor of Law & Co-Director of the Environmental Law Program
University of Arizona James E. Rogers College of Law

Ann Powers
Professor Emerita of Law
Global Center for Environmental Legal Studies
Elisabeth Haub School of Law at Pace University

Don C. Smith
Associate Professor of the Practice of Law
University of Denver Sturm College of Law