EPA Guidance; Administrative Procedures for Issuance and Public Petitions; Rescission
| Published date | 18 May 2021 |
| Citation | 86 FR 26842 |
| Record Number | 2021-10269 |
| Section | Rules and Regulations |
| Court | Environmental Protection Agency |
26842
Federal Register / Vol. 86, No. 94 / Tuesday, May 18, 2021 / Rules and Regulations
* * * * *
Dated: May 13, 2021.
A.M. Beach,
Captain, U. S. Coast Guard, Captain of the
Port Sector Ohio Valley.
[FR Doc. 2021–10464 Filed 5–17–21; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 2
[EPA–HQ–OA–2020–0128, FRL–10024–07–
OP]
RIN 2010–AA15
EPA Guidance; Administrative
Procedures for Issuance and Public
Petitions; Rescission
AGENCY
: Environmental Protection
Agency (EPA).
ACTION
: Final rule; rescission of
regulations.
SUMMARY
: In accordance with the
Presidential directive of January 20,
2021, ‘‘Revocation of Certain Executive
Orders Concerning Federal Regulation,’’
the Environmental Protection Agency
(EPA) is rescinding its October 19, 2020,
final rule establishing administrative
procedures for issuing Agency guidance
documents.
DATES
: This final rule is effective on
May 18, 2021.
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:
cooperstein.sharon@epa.gov.
SUPPLEMENTARY INFORMATION
:
I. General Information
A. What action is the Agency taking?
In accordance with E.O. 13992,
‘‘Revocation of Certain Executive Orders
Concerning Federal Regulation,’’ issued
by President Biden on January 20, 2021
(86 FR 7049, January 25, 2021), the EPA
is rescinding the final rule (85 FR
66230, October 19, 2020) that
established the procedures and
requirements regarding the issuance,
revision, and withdrawal of guidance
documents. The prior final rule was
promulgated to implement E.O. 13891,
‘‘Promoting the Rule of Law Through
Improved Agency Guidance
Documents’’ (84 FR 55235, October 15,
2019).
B. What is the Agency’s authority for
taking this action?
The revisions to the EPA’s policies
and requirements surrounding guidance
are matters of agency organization,
procedure, or practice that lack the force
and effect of law. Accordingly, the EPA
is not required to engage in a notice and
comment process to issue or revise
internal procedures under the
Administrative Procedure Act (APA).
See 5 U.S.C. 553(b)(3)(A), which
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 is providing
an immediate effective date for this
rulemaking because it is procedural
rather than substantive. The APA’s
requirement, 5 U.S.C. 553(d), that
substantive rules not be effective until at
least 30 days after publication in the
Federal Register is inapplicable because
this rulemaking is procedural.
II. Background
On October 9, 2019, President Trump
issued E.O. 13891, ‘‘Promoting the Rule
of Law Through Improved Agency
Guidance Documents.’’ The now
revoked E.O. 13891 provided a specific
definition of guidance documents and
required Federal agencies to finalize
regulations or amend existing
regulations to establish processes and
procedures for issuing guidance
documents, among other actions. On
October 19, 2020, the EPA published a
final rule consistent with E.O. 13891.
The final rule, codified at 40 CFR part
2, subpart D, established the EPA’s
policy and internal procedures for
issuing, modifying, withdrawing, and
using guidance documents; making
guidance documents available to the
public; and receiving and responding to
petitions about guidance documents (85
FR 66230).
On January 20, 2021, President Biden
issued E.O. 13992, ‘‘Revocation of
Certain Executive Orders Concerning
Federal Regulation,’’ which revoked
E.O. 13891. E.O. 13992 states that it is
the policy of the Administration ‘‘to use
available tools to confront the urgent
challenges facing the Nation, including
the coronavirus disease 2019 (COVID–
19) pandemic, economic recovery, racial
justice, and climate change. To tackle
these challenges effectively, executive
departments and agencies (agencies)
must be equipped with the flexibility to
use robust regulatory action to address
national priorities. This order revokes
harmful policies and directives that
threaten to frustrate the Federal
Government’s ability to confront these
problems, and empowers agencies to
use appropriate regulatory tools to
achieve these goals.’’ Section 3 of E.O.
13992 directs agencies to take steps to
rescind any orders, rules, regulations,
guidelines or policies, or portions
thereof, implementing or enforcing the
revoked Executive orders.
III. Discussion
After consideration and review, the
EPA has concluded that the internal
rule on guidance deprives the EPA of
necessary flexibility in determining
when and how best to issue public
guidance based on particular facts and
circumstances, and unduly restricts the
EPA’s ability to provide timely guidance
on which the public can confidently
rely. Therefore, in accordance with E.O.
13992, the EPA is issuing this final rule
to rescind the subpart D regulations.
The EPA’s stated purpose in issuing
subpart D was to promote transparency
and public involvement in the
development and amendment of EPA
guidance documents. The EPA notes,
however, that the Agency has
historically employed procedures for
public transparency and involvement in
the development of all Agency actions,
including guidance, and will continue
these practices. The EPA will continue
to make Agency guidance available to
the public on the Agency’s website at
https://www.epa.gov. In addition, the
EPA will comply with all statutory
obligations pertaining to posting
documents for public accessibility. The
EPA will also continue its practice, as
appropriate, of soliciting stakeholder
input on guidance of significant
stakeholder and public interest.
Consistent with the APA, stakeholders
may still petition the EPA at any time
regarding our regulatory programs,
including requests to issue, amend, or
repeal EPA guidance, by contacting the
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Federal Register / Vol. 86, No. 94 / Tuesday, May 18, 2021 / Rules and Regulations
EPA program office or regional office
that is responsible for administering the
area of stakeholder interest. Finally, the
EPA notes that guidance is non-binding
and does not have the force and effect
of law. Accordingly, the EPA will
continue to include in all guidance a
disclaimer that the guidance is non-
binding. Considering these practices
regarding guidance, the EPA believes
that rescinding the subpart D
regulations will restore the flexibilities
needed effectively to address the
challenges listed in E.O. 13992 and to
otherwise meet the Agency’s statutory
duties.
Therefore, in accordance with E.O.
13992 and for the reasons stated above,
the EPA is rescinding its internal agency
procedures for issuing guidance
documents codified at 40 CFR part 2,
subpart D.
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. 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.
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA.
The RFA applies only to rules subject to
notice and comment rulemaking
requirements under the Administrative
Procedure Act (APA), 5 U.S.C. 553, or
any other statute. This rule pertains to
agency management or personnel,
which the APA expressly exempts from
notice and comment rulemaking
requirements under 5 U.S.C. 553(a)(2).
D. 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.
E. 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.
F. 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.
G. 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 13891 and because this action
does not concern an environmental
health risk or safety risk, it is not subject
to Executive Order 13045.
H. 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.
I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
J. 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.
K. 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).
Michael S. Regan,
Administrator.
For the reasons set forth in the
preamble, the Environmental Protection
Agency amends 40 CFR part 2 as
follows:
PART 2—PUBLIC INFORMATION
■1. The authority citation for part 2 is
revised to read as follows:
Authority: 5 U.S.C. 552, 552a, 553; 28
U.S.C. 509, 510, 534; 31 U.S.C. 3717.
Subpart D [Removed]
■2. Remove subpart D, consisting of
§§ 2.501 through 2.507.
[FR Doc. 2021–10269 Filed 5–17–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2021–0171; FRL–10023–
93–Region 7]
Air Plan Approval; Nebraska;
Revisions to Title 115 of the Nebraska
Administrative Code; Rules of Practice
and Procedure
AGENCY
: Environmental Protection
Agency (EPA).
ACTION
: Final rule.
SUMMARY
: The Environmental Protection
Agency (EPA) is taking final action to
approve revisions to the State
Implementation Plan (SIP) submitted by
the State of Nebraska on September 24,
2020. This final action will amend the
SIP to revise the Nebraska
Administrative Code ‘‘Nebraska Rules of
Practice and Procedure.’’ These rules
describe the procedures the Nebraska
Department of Environment and Energy
(NDEE), formerly the Nebraska
Department of Environmental Quality
(NDEQ), will follow for proceedings
under the Administrative Procedure
Act. These proceedings include
contested cases, rulemaking petitions,
and declaratory rulings among others.
The revisions consolidate five chapters
into a single chapter by removing
duplicative language and incorporating
by reference model rules of agency
procedure promulgated by the Attorney
General for agency use in accordance
with the Administrative Procedure Act.
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