Inmate Discipline Program: New Prohibited Act Code for Pressuring Inmates for Legal Documents.
| Citation | 85 FR 66226 |
| Record Number | 2020-21486 |
| Published date | 19 October 2020 |
| Section | Rules and Regulations |
| Court | Justice Department,Prisons Bureau |
66226
Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Rules and Regulations
determining the net operating loss of the
estate are excess deductions on
termination of the estate under section
642(h)(2). Under § 1.642(h)–2(b)(1),
such deductions retain their character as
section 67(e) deductions. Under
§ 1.642(h)–4, B and the trust each are
allocated $3,650 of excess deductions
based on B’s and the trust’s respective
shares of the burden of each cost.
(4) Consequences for C. The net
operating loss carryover and excess
deductions are not allowable directly to
C, the trust beneficiary. To the extent
the distributable net income of the trust
is reduced by the net operating loss
carryover and excess deductions,
however, C may receive an indirect
benefit from the carryover and excess
deductions.
(b) Example 2: Computations under
section 642(h)(2)—(1) Facts. D dies in
2019 leaving an estate of which the
residuary legatees are E (75%) and F
(25%). The estate’s income and
deductions in its final year are as
follows:
T
ABLE
4
TO
P
ARAGRAPH
(b)(1)
Income:
Dividends .................................................................................................................................................................................. $3,000
Taxable Interest ........................................................................................................................................................................ 500
Rent .......................................................................................................................................................................................... 2,000
Capital Gain .............................................................................................................................................................................. 1,000
Total Income ...................................................................................................................................................................... 6,500
T
ABLE
5
TO
P
ARAGRAPH
(b)(1)
Deductions:
Section 62(a)(4) deductions:
Rental real estate expenses ............................................................................................................................................. 2,000
Section 67(e) deductions:
Probate fees ...................................................................................................................................................................... 1,500
Estate tax preparation fees ............................................................................................................................................... 8,000
Legal fees .......................................................................................................................................................................... 2,500
Total Section 67(e) deductions .................................................................................................................................. 12,000
Non-miscellaneous itemized deductions:
Personal property taxes .................................................................................................................................................... 3,500
Total deductions ......................................................................................................................................................... 17,500
(2) Determination of character.
Pursuant to § 1.642(h)–2(b)(2), the
character and amount of the excess
deductions is determined by allocating
the deductions among the estate’s items
of income as provided under § 1.652(b)–
3. Under § 1.652(b)–3(a), the $2,000 of
rental real estate expenses is allocated to
the $2,000 of rental income. In the
exercise of the executor’s discretion
pursuant to § 1.652(b)–3(b), D’s
executor allocates $3,500 of personal
property taxes and $1,000 of section
67(e) deductions to the remaining
income. As a result, the excess
deductions on termination of the estate
are $11,000, all consisting of section
67(e) deductions.
(3) Allocations among beneficiaries.
Pursuant to § 1.642(h)–4, the excess
deductions are allocated in accordance
with E’s (75 percent) and F’s (25
percent) interests in the residuary estate.
E’s share of the excess deductions is
$8,250, all consisting of section 67(e)
deductions. F’s share of the excess
deductions is $2,750, also all consisting
of section 67(e) deductions.
(4) Separate statement. If the executor
instead allocated $4,500 of section 67(e)
deductions to the remaining income of
the estate, the excess deductions on
termination of the estate would be
$11,000, consisting of $7,500 of section
67(e) deductions and $3,500 of personal
property taxes. The non-miscellaneous
itemized deduction for personal
property taxes may be subject to
limitation on the returns of both B and
C’s trust under section 164(b)(6)(B) and
would have to be separately stated as
provided in § 1.642(h)–2(b)(1).
(c) Applicability date. This section is
applicable to taxable years beginning
after October 19, 2020. Taxpayers may
choose to apply this section to taxable
years beginning after December 31,
2017, and on or before October 19, 2020.
Sunita Lough,
Deputy Commissioner for Services and
Enforcement.
Approved: September 16, 2020.
David J. Kautter,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2020–21162 Filed 10–16–20; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 541
[Docket No. BOP–1172–F]
RIN 1120–AB72
Inmate Discipline Program: New
Prohibited Act Code for Pressuring
Inmates for Legal Documents.
AGENCY
: Bureau of Prisons, Department
of Justice.
ACTION
: Final rule.
SUMMARY
: In this document, the Bureau
of Prisons (Bureau) adds a new code to
the list of prohibited act codes in the
inmate discipline regulations which
will clarify that the Bureau may
discipline inmates for pressuring or
otherwise intimidating other inmates
into producing copies of their own legal
documents, such as pre-sentence reports
(PSRs), or statement of reasons (SORs).
DATES
: This rule is effective November
18, 2020.
FOR FURTHER INFORMATION CONTACT
:
Sarah N. Qureshi, Rules Unit, Office of
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Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Rules and Regulations
General Counsel, Bureau of Prisons,
phone (202) 307–2105.
SUPPLEMENTARY INFORMATION
: In this
document, the Bureau adds a new
prohibited act code, 231, to Table 1—
Prohibited Acts and Available Sanctions
in the inmate discipline regulations at
28 CFR 541.3, which will clarify that
inmates may be disciplined for
pressuring or otherwise intimidating
other inmates into producing copies of
their own legal documents, such as pre-
sentence reports (PSRs), statement of
reasons (SORs), or other such
documents.
The Bureau has found that inmates, or
inmate groups, frequently pressure other
inmates for copies of their PSRs, SORs,
or other similar sentencing documents
from criminal judgments, to learn if they
are informants, gang members, have
financial resources, to find others
involved in offenses, to prove
affiliations, etc. Some inmates who
produced, or refused to produce, the
documents were threatened, assaulted,
and/or sought protective custody, all of
which jeopardized the Bureau’s ability
to safely manage its institutions. The
problem of threats and assaults on
inmates arising from possession of an
inmate’s presentence investigative
reports, statements of reasons, or other
similar sentencing documents from
criminal judgments has been
acknowledged by the Administrative
Office of U.S. Courts and in case law.
See, e.g., United States v. Antonelli, 371
F.3d 360, 361 (7th Cir. 2004); Harrison
v. Lappin, 510 F.Supp.2d 153 (DC Cir.
2007); Delgado v. Bureau of Prisons,
2007 WL 2471573 (E.D.Tex.); Martinez
v. Bureau of Prisons, 444 F.3d 620, 370
U.S.App.D.C. 275 (DC Cir. 2006);
Sample v. Watts, 100 Fed.Appx. 317,
2004 WL 1255359 (C.A.5 (Tex.).
The Bureau of Prisons (Bureau)
published a proposed rule on this
subject on November 19, 2019 (84 FR
63830). The comment period closed on
January 21, 2020. We received fifteen
comments during the comment period.
While several were in support of the
general premise of the proposed rule,
commenters raised similar concerns and
questions in their comments, which we
address below.
The rule limits inmates’ right to
meaningful access to courts. Fourteen of
the fifteen commenters raised a version
of this issue: The prohibited act code, as
proposed, appears to curtail the ability
of inmates to assist other inmates with
preparation of legal documents, as
allowed by 28 CFR part 543, specifically
§§ 543.10 and 543.11.
As we stated in the proposed rule, the
Bureau has found that inmates, or
inmate groups, pressure other inmates
for copies of their PSRs, SORs, or other
similar sentencing documents from
criminal judgments, to learn if they are
informants, gang members, have
financial resources, or to learn of others
involved in the offense, etc. Some
inmates who produced, or refused to
produce, the documents were
threatened, assaulted, and/or sought
protective custody, all of which
jeopardized the Bureau’s ability to
effectively and safely manage its
institutions. The defense bar, federal
sentencing courts, and the Bureau
identified this issue as one of concern
that required attention/action.
In Dept. of Justice v. Julian, 486 U.S.
1 (1988), the U.S. Supreme Court
decided the government was obligated
to provide inmates access to their own
pre-sentence investigation reports under
the Freedom of Information Act (FOIA).
By continuing to provide inmates
reasonable access to review their PSRs,
SORs, or other similar sentencing
documents from criminal judgments at
the facilities at which they are located,
the Bureau’s obligation under the FOIA
is satisfied. The Julian decision did not
mandate that inmates be permitted to
obtain and possess copies of these
documents contrary to legitimate
penological interests, i.e., the safety and
security of Bureau institutions, inmates,
staff, and the public.
The Bureau’s regulation in volume 28
of the Code of Federal Regulations,
section 543.10, indicates that the Bureau
affords inmates ‘‘reasonable access to
legal materials’’ in order to prepare legal
documents. Section 543.11(d)(1)
authorizes inmates to receive legal
materials from outside the institution,
including the inmate’s ‘‘pleadings and
documents (such as a pre-sentence
report) that have been filed in court or
with another judicial or administrative
body, drafts of pleadings to be
submitted by the inmate to a court or
with other judicial or administrative
body which contain the inmate’s name
and/or case caption prominently
displayed on the first page, documents
pertaining to an inmate’s administrative
case.’’ Subparagraph (d)(2) further
allows inmates to ‘‘possess those legal
materials which are necessary for the
inmate’s own legal actions. Staff may
also allow an inmate to possess the legal
materials of another inmate subject to
the limitations of paragraph (f)(2) of this
section.’’
Notably, however, commenters do not
mention the limitations of § 543.11(f)(2)
in existence prior to the proposed rule,
which provide that an assisting inmate
may possess another inmate’s legal
materials, while assisting the other
inmate, in the institution’s main law
library or in other locations designated
by the Warden, but may not remove
another inmate’s legal materials,
including copies, from the designated
location. The new prohibited act does
not alter or curtail the ability of an
assisting inmate to view another
inmate’s legal materials for the purposes
of assisting that inmate in an authorized
location.
Additionally, under § 543.11(f)(2)(i),
an assisting inmate is also permitted to
make handwritten notes and drafts of
pleadings, and even to remove those
notes from the authorized location, as
long as the notes do not contain a case
caption, document title, or the name of
any inmate.
Finally, § 543.11(f)(4) indicates that
limitations on inmate assistance to other
inmates may be imposed in the interest
of institution security, good order, or
discipline. This rulemaking is a
practical limitation for reasons of
security on the scope of inmate
assistance to other inmates. While this
rule does not prohibit such inmate
assistance, inmates may find that firmer
adherence to the letter of the regulations
has become necessary due to greater
attention to incidences of inmate
harassment and intimidation.
However, because commenters found
the language of the prohibited act code
to be unclear and overbroad, the Bureau
now alters code 231 as set forth in the
rule to provide that the conduct to be
prohibited is, in fact, unauthorized
conduct, not the authorized inmate
assistance rendered by one inmate to
another inmate in a location authorized
by the Warden and performed as
required in 28 CFR part 542.
Staff awareness and/or abuses of the
prohibited act code sanctions. Two
commenters asked how staff would be
made aware of prohibited act conduct
and what action they would take upon
being made aware of it. Another was
concerned that staff would take
‘‘discipline as physical punishment’’
and warned that ‘‘it must be made very
clear to any guard or authority figure in
a prison what kind of discipline the
inmate is to receive as well as clear
justification for it.’’ Three more
commenters expressed concerns
regarding the potential for staff to
impose immediate and direct discipline
for perceived violations of this
prohibited act code.
To respond to these concerns, we first
suggest to these and any other inmates
with grievances relating to staff abuse to
locate appropriate staff members or
medical professionals in their facilities
and report such behavior, and also to
make use of the Administrative Remedy
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Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Rules and Regulations
Procedures process in 28 CFR part 542.
Inmates may electronically send
requests to different departments within
the institution and use the Request to
Staff service to report misconduct
directly to the Office of Inspector
General (OIG). These emails are
anonymous and not retained or
traceable in the inmate email system.
However, the Bureau is committed to
ensuring the safety and security of all
inmates in our population, our staff, and
the public. Staff are trained and
expected to conduct themselves
professionally, including the humane
and courteous treatment of those in our
custody. Bureau staff are trained to stay
mindful of the agency’s core values of
correctional excellence, respect and
integrity. At the outset of their
employment, staff are instructed that
they must adhere to the principles of
ethical conduct in the Basic Obligations
of Public Service at 5 CFR 2635.101;
Standards of Ethical Conduct for
Employees of the Executive Branch at 5
CFR part 2635; the Department of
Justice’s Supplemental Ethics
Regulations at 5 CFR part 3801; the
criminal conflict of interest statutes at
18 U.S.C. 201, 202, 203, 205, 207, 208,
and 209; and the Bureau of Prisons
Standards of Employee Conduct in
Bureau of Prisons Program Statement
3420.11. The Bureau of Prisons provides
ethics training to all new employees
both when they begin employment and
annually thereafter.
Secondly, before any sanctions may
be imposed for violation of prohibited
acts, current regulations in 28 CFR part
541 describe the required process which
must be undertaken, including the
following:
•Issuing an incident report to the
inmate describing the prohibited act the
inmate is charged with, ordinarily
within 24 hours of becoming aware of
the inmate’s involvement in the
prohibited act conduct;
•Investigating the incident reported;
•Informing the inmate of the charges
against him/her and of his/her rights
during the process;
•Taking an inmate statement of
explanation of the incident, including
requests for witnesses or other evidence;
and
•Referring the incident report to the
Disciplinary Hearing Officer (DHO) for a
hearing.
When an incident report is referred to
a DHO for a hearing, Bureau regulations
explain that inmates again receive
written notice of the charges against
them at least 24 hours prior to the
hearing unless they waive that
requirement, and are entitled to a staff
representative, to make a statement and
present evidence on their own behalf,
and to present witnesses with relevant
information.
After the DHO hearing, inmates will
receive a written copy of the DHO’s
decision which must document whether
the inmate was advised of his/her rights
during the DHO process, what evidence
the DHO relied on to make the decision
reached, what decision was reached,
that sanction was imposed, and the
reasons for the sanctions imposed. The
inmate is also advised that he/she may
appeal the DHO’s action through the
Administrative Remedy Program (28
CFR part 542, subpart B).
This process provides multiple checks
and balances to deter or prevent staff
abuse by allowing inmates several
opportunities to speak on their own
behalf or present evidence and
witnesses. Staff must also carefully
document their observation of
prohibited acts and cannot immediately
or directly impose sanctions upon
inmates, but must instead refer incident
reports to DHOs for hearings, in the case
of 200-level prohibited acts, before
sanctions may be imposed.
Sanctions. Eight commenters asked
for more detail regarding the possible
sanctions that might be imposed for
violation of the prohibited act code. The
sanctions can be found in current
regulations at 28 CFR part 541.
However, we summarize them below.
The rule adds a new prohibited act
code 231, which is in the High Severity
Level Offenses category. If an inmate is
found to have committed a prohibited
act after a properly conducted DHO
hearing the DHO may impose a sanction
as listed in 28 CFR 541.3(b), Table 1,
Prohibited Acts and Available
Sanctions. Therefore, for violation of
new prohibited act code 231, a code in
the High Severity Level category, a DHO
may:
•Recommend parole date rescission
or retardation;
•Forfeit and/or withhold earned
statutory good time or non-vested good
conduct time up to 50% or up to 60
days, whichever is less, and/or
terminate or disallow extra good time
(an extra good time or good conduct
time sanction may not be suspended);
•Disallow ordinarily between 25%
and 50% (14–27 days) of good conduct
time credit available for year (a good
conduct time sanction may not be
suspended);
•Impose disciplinary segregation (up
to 6 months);
•Require monetary restitution;
•Impose a monetary fine;
•Revoke privileges (e.g., visiting,
telephone, commissary, movies,
recreation);
•Require a change in housing
(quarters);
•Remove an inmate from a program,
job and/or group activity; impound an
inmate’s personal property,
•Confiscate contraband,
•Restrict an inmate to quarters; or
•Impose extra duty.
This prohibited act code should be
moved to a greater severity level.
Commenters suggested that the
prohibited conduct described by this
rule was sufficiently egregious to
warrant upgrading its severity level and
therefore upgrading the severity of
potential sanctions that may be imposed
for violation. Several current or former
inmates commented regarding
‘‘organized gangs and other predatory
groups who formally assign members to
vet individuals’’ and ‘‘use information
for financial extortion for protection,’’
indicating that the proposed severity
level would ‘‘have little impact and
minimal deterrence’’ on this conduct.
While the Bureau appreciates the
position of these commenters, the
severity level determination was chosen
based on the nature of the offense
conduct. In this case, the new
prohibited act code includes
‘‘requesting, demanding, pressuring, or
otherwise intentionally creating a
situation’’ causing an inmate to produce
documents for any unauthorized
purpose to another inmate. The Greatest
Severity Level category includes
prohibited acts such as escape, killing,
arson, etc., which are generally
considered more threatening to
institution safety, security and good
order than actions including
‘‘requesting, demanding, pressuring’’ or
‘‘creating a situation’’ causing
production of documents for
unauthorized purposes. While the
activity contemplated is clearly enough
of an issue to warrant the creation of a
High Severity Prohibited Act, in the
correctional expertise of the Bureau of
Prisons, it does not rise to the level
necessary for inclusion in the Greatest
Severity Level Category.
The intent of the severity scale at its
inception was to ‘‘ensure a greater
consistency of use of discipline
throughout the Federal Prison System’’
and alleviate prior ‘‘concern that the
disciplinary system allowed for a
variety of interpretation on the degree of
severity of the prohibited act and on
sanctions that could be imposed.’’ (See
44 FR 23174, April 18, 1979.) In a later
final rule in 1982, the Bureau reflected
that the inmate disciplinary procedures
are ‘‘not intended to be either a judicial
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Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Rules and Regulations
process or to have the wide gradations
of offenses and punishments available
to the judiciary’’ but instead that the
‘‘purpose of the disciplinary process is
to help inmates live in a safe and
orderly environment.’’ (See 47 FR
35920, August 17, 1982.) Therefore, the
guiding factor when determining the
severity levels of prohibited act codes
has been ‘‘the impact on institution
security and good order.’’
In determining the severity level of
the new prohibited act code 231, the
Bureau compared the impact of the
prohibited conduct upon the safety,
security and good order of the facility
with that which might be generated
from violation of codes in each Severity
Level category, and determined that it
would fit best in the High Severity Level
offenses category in terms of seriousness
of the offense and threat generated.
Prohibited documents should include
institutional disciplinary history, and
prohibited conduct should include
accessing law library resources or
community resources to find
information regarding other inmates.
For similar reasons, these commenters
also suggested that the code conduct be
expanded from possession of inmate
court documents to inmate conduct
violation (institution disciplinary)
history as well, and suggested that if
inmates have need to see their
paperwork for legal representation
purposes that the paperwork be sent
directly from court systems to Wardens,
who should permit inmate viewing, but
not possession. Inmate commenters also
strongly recommended either
disallowing or disciplining inmate
access to court documents of fellow
inmates via the inmate law library or
community channels, and which they
noted has been a way for some inmates
to discover conviction information
about fellow inmates.
The Bureau must balance the inmate’s
ability to prepare, review, and analyze
his/her own case and access courts
against the security concerns sought to
be managed by this regulation. In
conducting this balance, the Bureau
finds it necessary to permit inmates to
retain the ability to access the inmate
law library to satisfy the inmate’s need
to prepare his/her case and access
courts. With regard to prohibiting
inmate access to documents received
through community channels, the
Bureau’s regulations regarding incoming
publications (28 CFR part 540, subpart
F), correspondence (Subpart B), visiting
(Subpart D), and telephone (Subpart I),
address these issues and the Bureau
continues to adhere to these regulations.
The Bureau holds inmates
accountable for threatening and coercive
behavior under existing provisions of
the disciplinary code. New prohibited
act code 231, however, will clarify that
this specific behavior may result in
sanctions. The defense bar, federal
sentencing courts and the Bureau
identified this issue as one of concern
that requires heightened disciplinary
attention. We therefore add the
aforementioned code provision, with
the aforementioned changes to the
proposed rule published on November
19, 2019 (84 FR 63830), to underscore
the severity of the conduct described.
Regulatory Analyses
Executive Orders 12866, 13563, and
13771
This rule falls within a category of
actions that the Office of Management
and Budget (OMB) has determined do
not constitute ‘‘significant regulatory
actions’’ under section 3(f) of Executive
Order 12866 and, accordingly, it was
not reviewed by OMB. The economic
effects of this regulation are limited to
the Bureau’s appropriated funds. It takes
an average of 7.5 hours of staff time to
process an incident report. One of the
expected outcomes of this clarifying
regulation is that inmates may be
deterred from engaging in the prohibited
behavior because violations are better
defined. This expected outcome would
save staff resources required to process
incident reports. At this time, however,
the Bureau cannot estimate precisely
how many incidents will be avoided or
the monetary value of the resulting cost/
resource savings. Further, the Bureau
would expect any anticipated savings
generated by this rule to have minimal
effect on the economy.
Executive Order 13132
This regulation will not have
substantial direct effect on the States, on
the relationship between the national
government and the States, or on
distribution of power and
responsibilities among the various
levels of government. Under Executive
Order 13132, we determine that this
regulation does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Director of the Bureau of Prisons,
under the Regulatory Flexibility Act (5
U.S.C. 605(b)), reviewed this regulation
and certifies that it will not have a
significant economic impact upon a
substantial number of small entities.
This regulation pertains to the
correctional management of offenders
committed to the custody of the
Attorney General or the Director of the
Bureau of Prisons, and its economic
impact is limited to the Bureau’s
appropriated funds.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions are
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This regulation is not a major rule as
defined by the Congressional Review
Act, 5 U.S.C. 804. This regulation will
not result in an annual effect on the
economy of $100,000,000 or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreign-
based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 541
Prisoners.
Michael Carvajal
Director, Federal Bureau of Prisons.
Under rulemaking authority vested in
the Attorney General in 5 U.S.C. 301; 28
U.S.C. 509, 510 and delegated to the
Director, Bureau of Prisons, we amend
28 CFR part 541 as follows.
SUBCHAPTER C—INSTITUTIONAL
MANAGEMENT
PART 541—INMATE DISCIPLINE AND
SPECIAL HOUSING UNITS
■1. The authority citation for part 541
continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621,
3622, 3624, 4001, 4042, 4081, 4082 (Repealed
in part as to offenses committed on or after
November 1, 1987), 4161–4166 (Repealed as
to offenses committed on or after November
1, 1987), 5006–5024 (Repealed October 12,
1984 as to offenses committed after that
date), 5039; 28 U.S.C. 509, 510.
SUBPART A—GENERAL
■2. Amend § 541.3 by adding an entry
231 under ‘‘High Severity Level
Prohibited Acts’’ in Table 1—Prohibited
Acts and Available Sanctions in
numeric order to read as follows:
§ 541.3 Prohibited acts and available
sanctions
* * * * *
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T
ABLE
1—P
ROHIBITED
A
CTS AND
A
VAILABLE
S
ANCTIONS
*******
High Severity Level Prohibited Acts
*******
231 ........... Requesting, demanding, pressuring, or otherwise intentionally creating a situation, which causes an inmate to produce or display
his/her own court documents for any unauthorized purpose to another inmate.
*******
* * * * *
[FR Doc. 2020–21486 Filed 10–16–20; 8:45 am]
BILLING CODE 4410–05–P
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.
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:
cooperstein.sharon@epa.gov.
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
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