Rule2021-28282
On-Site Civil Inspection Procedures; Rescission
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 30, 2021
Effective
December 30, 2021
Issuing agencies
Environmental Protection Agency
Abstract
In accordance with the Presidential directive of January 20, 2021, "Revocation of Certain Executive Orders Concerning Federal Regulation," and in order to ensure appropriate flexibilities to site- specific inspection work, the Environmental Protection Agency (EPA) is rescinding its March 2, 2020 final rule describing certain Agency procedures for conducting on-site civil inspections. This rule applies to on-site civil inspections conducted by federally credentialed EPA civil inspectors, federally credentialed contractors and Senior Environmental Employment employees conducting inspections on behalf of EPA.
Full Text
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<title>Federal Register, Volume 86 Issue 248 (Thursday, December 30, 2021)</title>
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[Federal Register Volume 86, Number 248 (Thursday, December 30, 2021)]
[Rules and Regulations]
[Pages 74371-74373]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-28282]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 31
[EPA-HQ-2020-03508; FRL-8540-01-OECA]
On-Site Civil Inspection Procedures; Rescission
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; rescission of regulations.
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SUMMARY: In accordance with the Presidential directive of January 20,
2021, ``Revocation of Certain Executive Orders Concerning Federal
Regulation,'' and in order to ensure appropriate flexibilities to site-
specific inspection work, the Environmental Protection Agency (EPA) is
rescinding its March 2, 2020 final rule describing certain Agency
procedures for conducting on-site civil inspections. This rule applies
to on-site civil inspections conducted by federally credentialed EPA
civil inspectors, federally credentialed contractors and Senior
Environmental Employment employees conducting inspections on behalf of
EPA.
DATES: This rule is effective on December 30, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-2020-03508. All documents in the docket are listed
on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For information on the EPA Docket Center services
and the current status, please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Chad Carbone, Monitoring, Assistance,
and Media Programs Division, Office of Enforcement and Compliance
Assurance (Mail Code 2221A), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-2523; email address: <a href="/cdn-cgi/l/email-protection#a4c7c5d6c6cbcac18ac7ccc5c0e4c1d4c58ac3cbd2"><span class="__cf_email__" data-cfemail="88ebe9faeae7e6eda6ebe0e9ecc8edf8e9a6efe7fe">[email protected]</span></a>.
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), and in order to ensure
appropriate flexibilities to site-specific inspection work, the EPA is
rescinding the final rule (85 FR 12224, March 2, 2020) that described
certain Agency procedures for conducting on-site civil inspections. The
prior final rule was promulgated to implement the now revoked E.O.
13892, ``Promoting the Rule of Law Through Transparency and Fairness in
Civil Administrative Enforcement and Adjudication'' (84 FR 55239,
October 9, 2019).
[[Page 74372]]
B. What is the Agency's authority for taking this action?
EPA's policies and requirements surrounding inspection procedures
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. 13892, ``Promoting
the Rule of Law Through Transparency and Fairness in Civil
Administrative Enforcement and Adjudication.'' Section 7 of the now
revoked E.O., entitled Ensuring Reasonable Administrative Inspections,
provided that: ``Within 120 days of the date of this order, each agency
that conducts civil administrative inspections shall publish a rule of
agency procedure governing such inspections, if such a rule does not
already exist.'' Section 1, Policy, of E.O. 13892 implied that there
was a need for a rule of Agency procedure, due to a perceived lack of
transparency on how EPA conducts on-site civil administrative
inspections. On March 2, 2020, the EPA published a final rule
consistent with E.O. 13892. The final rule, codified at 40 CFR part 31,
described certain EPA procedures for governing agency personnel on how
to conduct EPA on-site civil inspections (85 FR 12224).
On January 20, 2021, President Biden issued E.O. 13992,
``Revocation of Certain Executive Orders Concerning Federal
Regulation,'' which revoked E.O. 13892. 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
The inspection rule being rescinded today converted a subset of
what had been long-standing civil inspection practices, guided by
applicable agency policies, into rules of Agency procedure by which
``all'' civil inspections ``shall be conducted.'' 40 CFR Part 31.1(a).
Although not altering the rights of parties outside of EPA, the change
from an Agency practice to a rule of procedure reduces the flexibility
that is inherent in implementing agency policies in a case-by-case
manner. The procedures for inspections must be adaptable to the site-
specific conditions that the Agency faces in conducting its
investigations. By rescinding the 2020 inspection rule, EPA is
restoring the flexibility needed when carrying out civil inspections
under a myriad of circumstances.
Further, the EPA has concluded that the 2020 rule on civil
inspections is unnecessary, since procedures described in this rule
already exist in inspection guidances and manuals, which are accessible
to the public through EPA's website.
Therefore, in accordance with E.O. 13992, the EPA is issuing this
final rule to rescind the part 31 regulations.
Section 1, Policy, of E.O. 13892 implied that there was a need for
a rule of Agency procedure, due to a perceived lack of transparency on
how EPA conducts on-site civil administrative inspections. The EPA
notes, however, that the Agency has historically employed methods for
public transparency of Agency procedures for conducting on-site civil
inspections and will continue these transparency practices under
current policies. (These Agency guidances and manuals on the procedures
for on-site civil inspections are available to the public on the
Agency's website at <a href="https://www.epa.gov">https://www.epa.gov</a>.) In addition, the EPA has met
and will meet all statutory obligations pertaining to posting documents
for public accessibility. To the extent that concerns arise regarding
Agency guidance, a person may--consistent with the APA--petition the
EPA, including a request to issue, amend, or repeal EPA guidance, by
contacting the EPA program office or regional office that is
responsible for administering the area of stakeholder interest.
EPA believes that rescinding the part 31 regulations will restore
the flexibilities needed to 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
conducting on-site civil inspections codified at 40 CFR part 31.
IV. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
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
[[Page 74373]]
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 a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. 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 31
Environmental protection, On-site civil inspection procedures.
Michael S. Regan,
Administrator.
PART 31 [REMOVED AND RESERVED]
0
For the reasons set forth in the preamble, and under the authority of
E.O. 13992, the Environmental Protection Agency removes and reserves 40
CFR part 31.
[FR Doc. 2021-28282 Filed 12-29-21; 8:45 am]
BILLING CODE 6560-50-P
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