[Federal Register Volume 86, Number 92 (Friday, May 14, 2021)]
[Rules and Regulations]
[Pages 26406-26419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10216]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 83

[EPA-HQ-OAR-2020-0044; FRL 10024-10-OAR]
RIN 2060-AV18


Rescinding the Rule on Increasing Consistency and Transparency in 
Considering Benefits and Costs in the Clean Air Act Rulemaking Process

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule; request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) is rescinding the 
final rule entitled ``Increasing Consistency and Transparency in 
Considering Benefits and Costs in the Clean Air Act Rulemaking 
Process.'' The EPA is rescinding the rule because the changes advanced 
by the rule were inadvisable, untethered to the CAA, and not necessary 
to effectuate the purposes of the Act.

DATES: This rule is effective June 14, 2021. The EPA will consider 
comments on this rule received on or before June 14, 2021.
    If a member of the public requests a public hearing by May 21, 
2021, the EPA will hold a virtual public hearing on Wednesday, June 9, 
2021. Refer to the SUPPLEMENTARY INFORMATION section below for 
additional information.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2020-0044, by the following method:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
    Instructions: All submissions received must include the Docket ID 
No. EPA-HQ-OAR-2020-0044 for this rulemaking. Comments received may be 
posted without change to https://www.regulations.gov/, including any 
personal information provided. For detailed instructions on sending 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document. Out of an abundance of caution for members of 
the public and our staff, the EPA Docket Center and Reading Room are 
closed to the public, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit comments via https://www.regulations.gov/ or email, as 
there may be a delay in processing mail and faxes. Hand deliveries and 
couriers may be received by scheduled appointment only. For further 
information on EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Leif Hockstad, Office of Air Policy 
and Program Support, Office of Air and Radiation, U.S. EPA, Mail Code 
6103A, 1200 Pennsylvania Avenue NW, Washington, DC 20460; (202) 343-
9432; email address: [email protected].

SUPPLEMENTARY INFORMATION:

Acronyms

APA Administrative Procedure Act
BCA Benefit-Cost Analysis
CAA Clean Air Act
CBI Confidential Business Information
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
CRA Congressional Review Act
CRS Congressional Research Service
E.O. Executive Order
EPA Environmental Protection Agency
FR Federal Register
GAO Government Accountability Office
NAAQS National Ambient Air Quality Standards
NAS National Academies of Science, Engineering, and Medicine
NESHAP National Emission Standards for Hazardous Air Pollutants
NRDC National Resources Defense Council
NTTAA National Technology Transfer and Advancement Act
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
RIA Regulatory Impact Analysis
RFA Regulatory Flexibility Act
RTC Response to Comments document
SAB Science Advisory Board
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code

Table of Contents

I. General Information
    A. What action is the Agency taking?
    B. Does this action apply to me?

[[Page 26407]]

    C. What is the Agency's authority for taking this action?
II. Background
III. Rationale for Rescission
    A. The Benefit-Cost Rule failed to establish a rational basis 
for its requirements based on the Rule's record
    B. The Benefit-Cost Rule Was not necessary to carry out the CAA 
because the EPA already prepares a BCA for CAA rules that warrant 
such analysis
    C. The codification of specific practices in the Benefit-Cost 
Rule limited the EPA's ability to rely on the best available science
    D. The Benefit-Cost Rule's presentational requirements invited 
net benefit calculations in regulatory preambles that are misleading 
and inconsistent with economic best practices
    E. The Benefit-Cost Rule did not reconcile its consideration 
requirement with the substantive mandates of the CAA
    F. The pre-existing administrative process provides for ample 
consistency and transparency
IV. Rulemaking Procedures, Procedural Rule Exemption, and Request 
for Comment
    A. Written comments
    B. Participating in a virtual public hearing
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. What action is the Agency taking?

    In this interim final rule, the EPA is rescinding the final rule 
entitled, ``Increasing Consistency and Transparency in Considering 
Benefits and Costs in the Clean Air Act Rulemaking Process'' (hereafter 
``Benefit-Cost Rule'').\1\ For all of the reasons stated in this 
preamble, the EPA has determined that the Benefit-Cost Rule should be 
rescinded.
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    \1\ 85 FR 84130, (December 23, 2020).
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B. Does this action apply to me?

    This rule does not regulate the conduct or determine the rights of 
any entity or individual outside the Agency, as this action pertains 
only to internal EPA practices. However, the Agency recognizes that any 
entity or individual interested in the EPA's regulations promulgated 
under the Clean Air Act (CAA) may be interested in this rule. In 
addition, this rule may be of particular interest to entities and 
individuals interested in how the EPA conducts and considers benefit-
cost analyses (BCA).

C. What is the Agency's authority for taking this action?

    The Agency is taking this action pursuant to CAA section 
301(a)(1).\2\ Section 301(a)(1) provides authority to the Administrator 
``to prescribe such regulations as are necessary to carry out his 
functions'' under the CAA. As discussed in Section III of this 
preamble, the EPA has determined that the Benefit-Cost Rule was not 
``necessary'' and lacked a rational basis under CAA section 301(a), and 
therefore the EPA lacked authority to issue it; we are accordingly 
rescinding the Rule.
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    \2\ 42 U.S.C. 7601(a)(1).
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II. Background

    On January 20, 2021, President Biden signed Executive Order 13990, 
``Protecting Public Health and the Environment and Restoring Science To 
Tackle the Climate Crisis,'' \3\ which, among other actions, directed 
the EPA to immediately review and consider suspending, revising, or 
rescinding the Benefit-Cost Rule. Accordingly, the EPA has conducted a 
comprehensive review of both the legal and factual predicates for the 
Benefit-Cost Rule and, in particular, the need for the regulations that 
the Agency promulgated in the Benefit-Cost Rule. As a result of this 
review, the EPA has determined that the changes to Agency practice 
required by the Benefit-Cost Rule were inadvisable, not needed, and 
untethered to the CAA, and is therefore rescinding the Rule.
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    \3\ 86 FR 7037 (January 25, 2021).
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    The Benefit-Cost Rule was a procedural rule establishing 
requirements related to the development and consideration of BCA that 
the EPA would have been required to undertake when promulgating certain 
proposed and final regulations under the CAA. The final Benefit-Cost 
Rule stated, ``[t]he purpose of this action is to codify procedural 
best practices for the preparation, development, presentation, and 
consideration of BCA in regulatory decision-making under the CAA. This 
codification will help ensure that the EPA implements its statutory 
obligations under the CAA, and describes its work in implementing those 
obligations, in a way that is consistent and transparent.'' \4\ The 
final Benefit-Cost Rule was effective upon publication in the Federal 
Register based on the procedural rule exemption from delayed effective-
date requirements in the Administrative Procedure Act (APA). After 
publication, several parties filed petitions for review of the Benefit-
Cost Rule in the U.S. Court of Appeals for the District of Columbia, 
and these consolidated cases are currently in abeyance.\5\
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    \4\ 85 FR 84130.
    \5\ State of New York v. EPA, No. 21-1026 (D.C. Cir.); Cal. 
Cmtys. Against Toxics v. EPA, No. 21-1041 (D.C. Cir.); Envt'l Def. 
Fund v. EPA, No. 21-1069 (D.C. Cir.). State of New York v. EPA, No. 
21-1026 (D.C. Cir.), Doc. No. 1886762 (Feb. 23, 2021) (abeyance 
order).
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    The Benefit-Cost Rule included four independent elements. The first 
element required the EPA to prepare a BCA for all significant proposed 
and final regulations under the CAA. The Rule defined a significant 
regulation to include any proposed or final regulation that was 
determined to be significant by the Office of Management and Budget 
(OMB) under E.O. 12866 or was otherwise so designated by the EPA 
Administrator.
    The second element codified specific practices for developing the 
BCAs required by the Rule. Those practices were drawn largely from, but 
not identical to, the EPA's Guidelines for Preparing Economic Analyses 
(hereafter ``Economic Guidelines'') \6\ and OMB's Circular A-4.\7\ Such 
practices included providing a statement of need, analysis of 
regulatory options, and appropriate baseline. In addition, the Rule 
required the risk assessments used to support BCAs to follow certain 
methods for risk characterization and risk assessment, including a 
systematic review approach. These methods included a specific process 
for selecting health benefit endpoints for quantification, including 
the requirement that a clear causal or likely causal relationship 
between pollutant exposure and effect had been established; a 
systematic review process; use of particular models to quantify the 
concentration-response relationships; and a presentation of results 
that highlighted uncertainty associated with the estimated benefits. 
The BCA was also required to include specific methods for assessing 
uncertainty and an explanation for the

[[Page 26408]]

methods chosen to analyze uncertainties. To the extent permitted by 
law, the Benefit-Cost Rule required the EPA to ensure that all 
information used in the development of the BCA would be publicly 
available. Any departures from the specified practices required a 
discussion of the likely effect on the results of the BCA.
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    \6\ U.S. EPA. 2010. Guidelines for Preparing Economic Analyses. 
https://www.epa.gov/environmental-economics/guidelines-preparing-economic-analyses.
    \7\ Exec. Office of the President, OMB, Circular A-4: Regulatory 
Analysis (Sept. 17, 2003), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
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    The third element required the presentation of the BCA results in 
the preamble of the rulemakings subject to the Rule. In addition to a 
summary of the overall BCA results, the Benefit-Cost Rule required 
preambles to include a separate reporting of impacts that accrue to 
non-U.S. populations, an additional reporting of the public health and 
welfare benefits that pertain to the specific objective(s) of the CAA 
provision(s) under which the rule is promulgated, and a similar 
presentation of any costs that the CAA provision(s) specifies should be 
considered.
    Finally, the fourth element required the Agency to consider the BCA 
in promulgating the regulation except where the CAA provision(s) under 
which the regulation is promulgated prohibit it. The Rule required that 
the Agency explain in the preamble how the Agency considered the BCA in 
its decision-making. The preamble indicated the EPA's intention that 
compliance with the Rule's requirements would be judicially reviewable.
    The EPA cited CAA section 301(a)(1) as the sole source of authority 
for the Benefit-Cost Rule. That provision states, ``[t]he Administrator 
is authorized to prescribe such regulations as are necessary to carry 
out his functions under this chapter.'' The preamble to the Rule 
explained that the Agency had authority under that CAA provision 
because the ``authority in Section 301(a)(1) extends to internal agency 
procedures that increase the Agency's ability to provide consistency 
and transparency to the public in regard to the rulemaking process 
under the CAA.'' \8\ The final Rule cited NRDC v. EPA, 22 F.3d 1125, 
1148 (D.C. Cir. 1994) for the proposition that ``[CAA section 301] is 
sufficiently broad to allow the promulgation of rules that are 
necessary and reasonable to effect the purposes of the Act.'' \9\
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    \8\ 85 FR 84137.
    \9\ Id.
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III. Rationale for Rescission

    After review of the Benefit-Cost Rule and its record, the EPA has 
concluded that the Rule should be rescinded in its entirety for several 
reasons. The Agency stated that it had authority to promulgate the Rule 
under CAA section 301(a) because it asserted that the Rule's additional 
procedures were necessary to ensure consistency and transparency in CAA 
rulemakings.\10\ However, as discussed in Section III.A of this 
preamble, the Agency failed to articulate a rational basis for the 
Rule, and did not explain how the existing CAA rulemaking process had 
created or was likely to create inconsistent or non-transparent 
outcomes, i.e., that an actual or theoretical problem existed. We have 
also determined, after reviewing each element of the Rule, that the 
additional procedures required under the Rule were not needed, useful, 
or advisable policy changes. In some cases, as discussed in this 
Section of the preamble, the new procedures could have hindered the 
EPA's compliance with the CAA and may not have even furthered the 
Rule's stated purposes of consistency and transparency. Our rationale 
for rescinding each of the four independent elements of the Rule is 
severable and provided below in Sections III.B-E of this preamble. 
Finally, in Section III.F we note that the existing public process 
provides ample ability for the public to participate in the EPA's CAA 
rulemakings.
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    \10\ 85 FR 84137.
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A. The Benefit-Cost Rule Failed To Establish a Rational Basis for Its 
Requirements Based on the Rule's Record.

    As an initial matter, the EPA has determined that the Agency failed 
to provide a rational basis to support the Rule or explain why the Rule 
was needed or reasonable. The Rule did not provide any record evidence 
that the guidance and administrative processes already in place 
presented problems that justified the mandate imposed by the Rule. 
Indeed, the Rule failed to point to a single example of a rule 
promulgated under the CAA where problems emerged that would have been 
avoided had the mandate imposed by the rule been in place. Although the 
Agency asserted that the Benefit-Cost Rule's purported achievement of 
greater consistency and transparency in economic analyses across those 
CAA rulemakings affected by the Rule would ``better allow the Agency to 
fulfill the purpose described in Section 101(b)(1) of the CAA `to 
protect and enhance the quality of the Nation's air resources so as to 
promote the public health and welfare and the productive capacity of 
its population,' '' \11\ the mere assertion of ``consistency'' or 
``transparency'' in the Rule did not adequately explain what the Agency 
was trying to accomplish. Furthermore, there was no discussion of how 
the requirements of the Rule improved the Agency's ability to 
accomplish the CAA's goals to protect and enhance air quality.\12\
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    \11\ 85 FR 84138.
    \12\ The Rule referenced CAA sections 101(b)(1) and 101(c) but 
failed to explain how its procedures better served those 
Congressional aims than the status quo ante.
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    Some portions of the Rule suggested that it was intended to combat 
a theoretical threat. For example, the preamble of the final rule 
stated, ``Without enforceable procedural regulations for BCA, future 
regulations may be promulgated without consideration of, and public 
accountability concerning, their costs and benefits. Thus, the EPA has 
determined that the Final Rule is necessary to ensure that BCA 
practices are implemented in a consistent fashion prospectively.'' \13\ 
The hypothetical threat that future significant CAA regulations would 
be promulgated without appropriate consideration of costs and benefits 
and without due public process is highly implausible. The Agency's 
consideration of all factors it is required to analyze under the 
specific provisions of the CAA is already subject to public notice and 
comment processes (see Section III.F of this preamble) and enforceable 
judicial review. Moreover, as discussed in Section III.B of this 
preamble, there has been an unbroken, bipartisan, decades-long 
commitment from Presidential Administrations to conducting benefit-cost 
analyses for economically significant regulations issued in the United 
States. These analyses are rigorous, publicly available, subject to 
interagency review, and are conducted according to extensive peer-
reviewed guidelines from OMB and the EPA.\14\
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    \13\ 85 FR 84137.
    \14\ See Section III.C of this preamble.
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    We therefore rescind the Rule on the basis that it failed to 
articulate a rational basis justifying its promulgation.

B. The Benefit-Cost Rule Was Not Necessary To Carry Out the CAA Because 
the EPA Already Prepares a BCA for CAA Rules That Warrant Such 
Analysis.

    In this section, we address the reasons for rescinding the Rule's 
expansion of BCA to ``significant'' CAA rulemakings that are not 
economically significant under E.O. 12866. While BCA is a useful 
analytic tool for informing regulatory actions, it is a resource-
intensive undertaking. The Rule expanded the universe of CAA 
rulemakings for which the EPA would be required to conduct BCAs without 
justifying why such

[[Page 26409]]

expansion was necessary or appropriate. We conclude that existing 
directives under E.O. 12866 and guidance to conduct BCAs for 
economically significant rules, while retaining flexibility in 
analyzing costs, benefits, and other factors for non-economically 
significant rules, strike the better balance between agency resources 
and the information provided by additional economic analysis for such 
rules.
    BCA has been part of executive branch rulemaking for decades. 
Presidents since the 1970s have issued E.O.s directing agencies to 
conduct analyses of the economic consequences of regulations as part of 
the rulemaking development process. E.O. 12866, which is still in 
effect, requires that for all significant regulatory actions, an agency 
provide ``an assessment of the potential costs and benefits of the 
regulatory action, including an explanation of the manner in which the 
regulatory action is consistent with a statutory mandate . . .'' \15\ 
Some statutes also impose analytical requirements for regulatory 
actions. For example, the Unfunded Mandates Reform Act of 1995 (UMRA) 
includes requirements that are similar to the analytical requirements 
under E.O. 12866. Both E.O. 12866 (and its predecessors) and its 
implementing guidance, Circular A-4, call for Agencies to focus 
resources on quantifying benefits and costs using BCA for those 
regulations that are anticipated to have the largest effects on the 
economy. Specifically, E.O. 12866 requires a quantification of benefits 
and costs to the extent feasible for any regulatory action that is 
``likely to result in a rule that may . . . have 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.'' \16\ Rules meeting any of these 
criteria are labelled as ``economically significant.'' Similarly, 
UMRA's analytical requirements pertain to all regulatory actions that 
include federal mandates ``that may result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation) in 
any one year.'' \17\
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    \15\ E.O. 12866, Regulatory Planning and Review (58 FR 51735, 
October 4, 1993).
    \16\ Id. at section 3(f)(1).
    \17\ 2 U.S.C. 1532(a).
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    The EPA estimates the anticipated impacts of its regulatory actions 
using methods and assumptions that are transparent, consistent with the 
best available science, and appropriate for the scope of the regulatory 
action. In performing analysis of regulatory action, the EPA adheres to 
the executive order requirements pertaining to economic analysis by 
following the guidance laid out by Circular A-4 and the Economic 
Guidelines. Per those directives and guidance, the BCAs and other types 
of analysis supporting significant CAA regulations are subject to 
internal review and an interagency review process under E.O. 12866 that 
involves application of the principles and methods defined in Circular 
A-4. The scientific information and models used within BCA and other 
analyses supporting regulatory decisions are also subject to EPA's peer 
review guidance \18\ and OMB's guidance to federal agencies on what 
information is subject to peer review, the selection of appropriate 
peer reviewers, opportunities for public participation, and related 
issues.\19\
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    \18\ See EPA's 2015 Peer Review Handbook, 4th Edition, available 
at https://www.epa.gov/osa/peer-review-handbook-4th-edition-2015.
    \19\ See OMB's Final Information Quality Bulletin for Peer 
Review (70 FR 2664, January 14, 2005).
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    Executive orders and subsequent guidance distinguish between 
analytical requirements for economically significant rules and other 
significant rules, both because of the resource intensity of regulatory 
analysis and because of substantive differences between types of rules. 
Developing a BCA for an economically significant CAA rule takes 
considerable Agency resources often spanning a year or more and 
frequently involves the development of policy-relevant emissions 
inventories, photochemical air quality modeling, engineering research 
assessments and analyses, engineering cost assessments, and benefits 
assessments for human health, climate, visibility, ecological and/or 
other categories of benefits. These complex and time-consuming 
analytical undertakings are appropriate for economically significant 
rules. However, these complex analyses may not always be the best use 
of Agency resources for smaller rules determined to be significant by 
OMB under E.O. 12866 because they raise novel legal or policy issues 
rather than because of the magnitude of their benefits or costs.
    The Benefit-Cost Rule significantly expanded the set of rulemakings 
for which a BCA would have been conducted. As the Rule required BCA for 
all rules designated as significant under E.O. 12866, this would have 
included many actions that are not economically significant. For 
example, between January 2017 and January 2021, the EPA finalized 32 
significant regulations under the CAA, including only 7 economically 
significant regulations.\20\ This expansion to conduct BCA for a 
substantially larger set of CAA rules would have consumed significant 
EPA staff time and other resources, and the additional time such 
unwarranted analyses would have taken could have resulted in delays in 
fulfilling statutory obligations under the CAA. Removal of this 
requirement allows the Agency to better target analytic resources 
towards CAA rules that tend have larger economic consequences.
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    \20\ See the memorandum in the docket ``Final Significant 
Regulations under the Clean Air Act 2017-2021'' for the list of the 
significant and economically significant regulations.
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    Under E.O. 12866, rules that are designated significant include 
those that may: ``[h]ave 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''; ``[c]reate a serious inconsistency or 
otherwise interfere with an action taken or planned by another 
agency''; ``[m]aterially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof''; or ``[r]aise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in this Executive order.'' Most significant CAA regulations 
that are not economically significant are determined to be significant 
for novel legal or policy reasons. These rules raise issues that may be 
unrelated to the magnitude of benefits or costs analyzed in BCA. As a 
result, key policy decisions in the context of these rules are often 
issues that can be fully addressed through a more targeted or different 
kind of analysis than a BCA. For significant rules that are not 
economically significant, other less resource-intensive and time-
consuming analyses are prepared to inform and support the rulemaking. 
For example, instead of conducting a BCA, the EPA may instead examine 
the emission and cost impacts on particular regulated entities or 
conduct qualitative analyses for less consequential rules, which may 
regulate smaller sectors of economy, affect sectors that are not well 
connected with other parts of the economy, or have smaller effects to 
the economy overall. In addition, often in these situations data and 
methods for quantifying and

[[Page 26410]]

monetizing overall net benefits may not be available. In such cases, 
less extensive analyses may provide sufficient information for the 
rulemaking. These analyses may also include elements of a BCA that 
contribute important information to the policy decision. For example, 
the Agency routinely prepares economic impact assessments for many 
rules, including risk and technology reviews for NESHAPs and new source 
performance standards. As noted above, though, the resources involved 
in doing a BCA may not be warranted when the focus of regulatory 
analysis is on novel legal or policy issues or other non-economic 
factors that make the action significant.
    The Benefit-Cost Rule did not provide a justification for its 
expansion of the number of CAA rules for which the EPA must conduct a 
BCA, and after reviewing the Rule, we have concluded that we do not 
think a BCA is necessarily warranted for every CAA rule that is 
designated as significant under E.O. 12866. The EPA remains committed 
to the principles outlined in the Economic Guidelines and Circular A-4 
when designing and conducting analysis of all significant regulations. 
As noted, these analyses are the most extensive--i.e., result in a 
BCA--for economically significant rules as those would most benefit 
from resource-intensive, complex inquiries into societal costs and 
benefits and a calculation of net benefits. The Rule did not provide an 
explanation for why BCAs are required for other CAA rules that OMB has 
designated ``significant'' for reasons other than the magnitude of 
their benefits or costs. Requiring a BCA even when the primary issues 
of importance are not economic unnecessarily complicates the rulemaking 
process, potentially diverts the Agency's resources from those aspects 
of the rule that warrant additional consideration (i.e., the reasons 
why the rule was designated significant), and could delay rules needed 
for protection of public health and the environment. In addition, 
requiring a BCA for all significant CAA rules could delay BCAs for 
economically significant rules if staff time and resources are 
diverted.

C. The Codification of Specific Practices in the Benefit-Cost Rule 
Limited the EPA's Ability To Rely on the Best Available Science

    The EPA is rescinding the Benefit-Cost Rule's codification of 
specific practices for the development of BCA in a regulation because 
this aspect of the Rule could have prevented the EPA from relying on 
best available science. First, because best practices for conducting a 
high-quality BCA cannot be established using a set formula, 
codification of specific practices could prevent situation-specific 
tailoring of BCA, which is always necessary. Second, best practices 
evolve over time, and the Benefit-Cost Rule would have locked the EPA 
into using outdated practices until it could have been amended via 
rulemaking, which could have delayed incorporation of new scientific 
information and methods. Third, some of the Rule's ``best practice'' 
requirements did not derive from the Economic Guidelines, Circular A-4, 
or the EPA's Science Advisory Board (SAB) advice. Below we discuss each 
rationale for rescission in turn.
1. The Benefit-Cost Rule Demonstrated the Difficulty in Codifying 
Specific Practices Into Implementable and Reviewable Requirements for 
BCA
    Although the Benefit-Cost Rule stated that it was based on the 
requirements of Circular A-4 and the Economic Guidelines, codification 
of such requirements in regulation is inconsistent with the 
instructions in those same guidance documents to tailor an analysis to 
the specific situation. In the 2003 memo to the heads of executive 
agencies and establishments, Circular A-4 states: ``You will find that 
you cannot conduct a good regulatory analysis according to a formula. 
Conducting high-quality analysis requires competent professional 
judgment. Different regulations may call for different emphases in the 
analysis, depending on the nature and complexity of the regulatory 
issues and the sensitivity of the benefit and cost estimates to the key 
assumptions.'' \21\ The Economic Guidelines similarly acknowledge that 
there are a wide variety of case-specific issues that arise in 
conducting a BCA, noting that ``[the] most productive and illuminating 
approaches for particular situations will depend on a variety of case-
specific factors and will require professional judgment.'' \22\ The 
Economic Guidelines emphasize that they are not intended to be a 
``rigid blueprint'' or a ``cookbook,'' \23\ as doing so would be 
unproductive and ultimately less helpful to analysts due to the 
diversity of analyses and situations requiring professional judgement. 
For example, the Benefit-Cost Rule required quantitative methods to 
analyze uncertainties in the assessment of costs, changes in air 
quality, assessment of likely changes in health and welfare endpoints, 
and the valuation of those changes, without allowing flexibility to 
tailor this requirement to the size or complexity of the rule being 
analyzed. In contrast, Circular A-4 recognizes that formal quantitative 
uncertainty analysis is most important to conduct for the largest 
rules: ``For major rules involving annual economic effects of $1 
billion or more, you should present a formal quantitative analysis of 
the relevant uncertainties about benefits and costs.'' \24\
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    \21\ Circular A-4 at p. 3.
    \22\ Economic Guidelines at p. 1-2.
    \23\ Id.
    \24\ Circular A-4 at p. 40.
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    In their review of the proposed Benefit-Cost Rule, the SAB 
commented on the tension created by codifying BCA requirements into 
regulation. The SAB ``urge[d] EPA to consider carefully which aspects 
of BCA should be included in the final rule versus which aspects should 
be in guidance, given the case-by-case nature of BCA.'' \25\ The SAB 
also highlighted examples where a more flexible approach would be 
warranted, including recommending that ``no `one size fits all' 
approach to causality be mandated because a variety of approaches may 
need to be taken.'' \26\ However, the EPA did not revise the 
requirements in the proposed Benefit-Cost Rule in response to this 
advice from SAB. After further review, the EPA has reconsidered the 
record of the Benefit-Cost Rule, including the public comments and SAB 
advice, and agrees that a ``one size fits all'' approach is not an 
appropriate approach to BCA in general or mandating specific practices 
for benefits assessment causality in particular.
---------------------------------------------------------------------------

    \25\ U.S. EPA SAB. 2020. Science Advisory Board (SAB) 
Consideration of the Scientific and Technical Basis of EPA's 
Proposed Rule titled ``Increasing Consistency and Transparency in 
Considering Benefits and Costs in the Clean Air Act Rulemaking 
Process.'' EPA-SAB-20-012. September 30. (``SAB (2020)'') at p. i, 
available at https://yosemite.epa.gov/sab/sabproduct.nsf/
0A312659C8AC185D852585F80049803C/$File/EPA-SAB-20-012.pdf.
    \26\ Id. at p. 7.
---------------------------------------------------------------------------

    In addition, the final Benefit-Cost Rule had no exemption for rules 
without costs or with de minimis costs or benefits, and certain 
limitations were only caveated by technical considerations rather than 
practicality or usefulness (e.g., 40 CFR 83.3(a)(9)(vi) (``When 
sufficient data exist''); 40 CFR 83.3(a)(10)(iii) (``Where data are 
sufficient'')). Circular A-4 provides a contrary, more flexible and 
reasoned approach, stating that ``[a]s with other elements of 
regulatory analysis, you will need to balance thoroughness with the 
practical limits on your analytical

[[Page 26411]]

capabilities.'' \27\ Even the CAA provision (section 317) that requires 
economic impact assessments for certain proposed regulations under the 
CAA also requires the EPA to consider practicability, professional 
judgement, and the time and resources involved in determining the 
extent of any such assessment.\28\ This disconnect between the need to 
adapt economic analyses to particular circumstances as articulated in 
Circular A-4 and CAA section 317, and the requirements in the Benefit-
Cost Rule provides an additional rationale for rescinding the Benefit-
Cost Rule. Existing guidance affords flexibility for the EPA to conduct 
the type of analysis warranted by a particular rulemaking.
---------------------------------------------------------------------------

    \27\ Circular A-4 at p. 40.
    \28\ CAA section 317 applies to a subset of regulations 
promulgated under the CAA. Specifically, it applies to new source 
performance standards, ozone and stratospheric protection, 
prevention of significant deterioration, new motor vehicles and 
engines, fuel and fuel additives, and aircraft emissions 
regulations. In contrast, the Benefit-Cost Rule would have applied 
to all significant CAA regulations. In addition, the economic impact 
assessment required by CAA section 317 is a less complex and time-
consuming analytical undertaking than a BCA because it does not 
require the assessment of benefits. See CAA section 317(d) 
(``Extensiveness of assessment. The assessment required under this 
section shall be as extensive as practicable, in the judgment of the 
Administrator taking into account the time and resources available 
to the Environmental Protection Agency and other duties and 
authorities which the Administrator is required to carry out under 
this chapter.'').
---------------------------------------------------------------------------

    Even the parts of the Benefit-Cost Rule that appeared to be 
intended to provide flexibility--such as certain caveats for benefits 
assessment like ``to the extent possible''--would have unnecessarily 
constrained the Agency compared to the recommendations in the Economic 
Guidelines and Circular A-4. In practice, these caveats demonstrated 
one of the problems with attempting to codify BCA best practices into 
regulation, and the advantages of using guidance to conduct BCAs. Under 
the guidance documents, technical experts exercise their professional 
judgment to design and conduct analyses tailored to the situation at 
hand. The Benefit-Cost Rule's restrictive caveats like ``to the extent 
possible'' eliminated or at the very least cabined the ability for 
experts to exercise that judgment by potentially requiring the expert 
to first demonstrate that compliance with the requirement was not 
possible, before being able to select more appropriate methods and 
approaches.
    Further, some of the requirements of the Benefit-Cost Rule were 
very unclear. For example, the requirement in 40 CFR 83.3(a)(9)(iii)(E) 
(``To the extent possible, the studies or analyses should be: [. . .] 
reliably distinguish [sic] the presence or absence (or degree of 
severity) of health outcomes'') did not provide clear direction to the 
analyst because multiple technical interpretations of the standard in 
the regulation were reasonable. The lack of clarity in these 
requirements would have created confusion within the Agency and with 
the public. The codification of such unclear requirements in regulation 
would undoubtedly have generated unnecessary and wasteful litigation by 
creating opportunities to question whether the EPA had strictly 
followed the letter of the Benefit-Cost Rule, rather than focusing on 
whether it had conducted scientifically sound analyses.
    We conclude that reverting to the use of existing, well-vetted 
guidance allows the Agency to design BCAs and analyses that demand 
scientific rigor without forcing the Agency's economists and other 
scientists into choosing between complying with the Benefit-Cost Rule 
or exercising professional scientific and economic judgment.
2. As Best Practices Evolve Over Time, the Benefit-Cost Rule Would Have 
Locked the EPA Into Using Outdated Practices Until the Rule Could Have 
Been Amended
    As acknowledged in the Economic Guidelines, environmental 
policymaking and economic analysis evolves over time and new literature 
is continually published.\29\ For this reason, the EPA adopted an 
approach described as the ``loose-leaf'' format \30\ in the Economic 
Guidelines that provides flexibility to account for new information and 
the growth and development of economic tools over time. Circular A-4 
also acknowledges the continual advancement of BCA methods: ``New 
methods may become available in the future. This document is not 
intended to discourage or inhibit their use, but rather to encourage 
and stimulate their development.'' \31\ However, the final Benefit-Cost 
Rule failed to account for this constantly evolving environment by 
enshrining specific practices in regulation. If the EPA had retained 
the Benefit-Cost Rule, the Agency would have been required to amend the 
Rule before being allowed to incorporate new scientific, including 
economic, information or update methods that had evolved since the 
Benefit-Cost Rule was promulgated. Preventing the EPA from keeping up 
with evolving best practices and requiring the EPA to rely on 
potentially outdated methods until a revised rulemaking is completed is 
inconsistent with the CAA direction to make decisions based on the best 
scientific data available.\32\
---------------------------------------------------------------------------

    \29\ Economic Guidelines at p. 1-1.
    \30\ Id.
    \31\ Circular A-4 at p. 42.
    \32\ See, e.g., CAA section 108(a)(2) (directing the EPA to use 
``latest scientific knowledge'' in setting the NAAQS); CAA section 
211(c)(2)(A) (requiring the EPA to consider ``all relevant medical 
and scientific evidence available'' in regulating fuels); CAA 
section 606(a)(1) (instructing the EPA to consider accelerated 
timetable for regulation in part ``based on an assessment of 
credible current scientific information'').
---------------------------------------------------------------------------

    By freezing and defining what constituted ``best practices'' at a 
single point in time, the Benefit-Cost Rule elevated ``consistency'' 
over the exercise of sound judgment based on latest scientific 
knowledge and, given that revision by rulemaking would take a long 
time, would have slowed or discouraged progress in the development and 
use of newer and better methods. This risk was particularly notable for 
the highly prescriptive requirements in the Benefit-Cost Rule for 
benefits assessment and uncertainty analysis (as discussed below in 
this Section of the preamble). In contrast, since guidance is 
inherently less prescriptive than regulation, it can be more flexible 
in allowing agencies to keep up with the evolution of best practices to 
be used to support CAA regulations.\33\ As further evidence of how best 
practices change over time, we note that the Economic Guidelines are in 
the process of being updated as part of a periodic review undertaken by 
the EPA.\34\ In addition, President Biden

[[Page 26412]]

issued a memorandum on January 20, 2021, on Modernizing Regulatory 
Review,\35\ which directs OMB in consultation with other agencies to 
recommend revisions to Circular A-4. Therefore, the Benefit-Cost Rule, 
because it froze the requirement to use certain practices, may not have 
been consistent with the forthcoming updates to the Economic Guidelines 
or Circular A-4.
---------------------------------------------------------------------------

    \33\ As a parallel example under another environmental statute, 
the National Academies of Science, Engineering, and Medicine (NAS) 
recently released a peer review report that criticized the EPA's 
systematic review process for evaluating existing chemical substance 
risks under the Toxic Substances Control Act for not meeting state-
of-practice standards. See National Academies of Sciences, 
Engineering, and Medicine. 2021. The Use of Systematic Review in 
EPA's Toxic Substances Control Act Risk Evaluations. Washington, DC: 
The National Academies Press. https://doi.org/10.17226/25952. In 
response, the EPA announced that it would no longer use the prior 
systematic review approach and would instead develop a new approach 
that incorporates the NAS advice. See EPA. 2021. EPA Commits to 
Strengthening Science Used in Chemical Risk Evaluations. Press 
Release. Feb 16. https://www.epa.gov/newsreleases/epa-commits-strengthening-science-used-chemical-risk-evaluations. The Benefit-
Cost Rule would have precluded or slowed this kind of adjustment in 
response to future peer reviews and the Agency's ability to keep up 
with evolving best practices for significant CAA rules.
    \34\ In January 2021, the SAB released their final peer review 
report of the EPA's draft revision, and the EPA anticipates 
finalizing the updated Economic Guidelines shortly. Although the EPA 
intended for the requirements in the Benefit-Cost Rule to align with 
the updated Economic Guidelines, the Rule was finalized before the 
SAB's peer review was completed. U.S. EPA SAB. 2021. Transmittal of 
the Science Advisory Board Report titled ``SAB Peer Review of the 
EPA's Revised Guidelines for Preparing Economic Analysis''. EPA-SAB-
21-002. January 6, available at https://yosemite.epa.gov/sab/
sabproduct.nsf/LookupWebReportsLastMonthBOARD/
61C74C0E14BD5956852586550071E058/$File/EPA-SAB-21-002.pdf.
    \35\ 86 FR 7223 (January 26, 2021).
---------------------------------------------------------------------------

    While the Benefit-Cost Rule purported to promote consistency, after 
further consideration we have concluded that it instead would have 
promoted inconsistency. Best practices for preparing BCA evolve and 
improve over time as scientific learning advances. The Benefit-Cost 
Rule sought, by codifying a discrete set of specific requirements as 
``best practices,'' to lock in those specific practices and allow 
judicial review to enforce them until a future rulemaking was 
undertaken to update them. Because these requirements applied only to 
significant CAA rules, they would not have affected how the EPA 
conducts BCA for economically significant rules issued under other 
statutes. For these rules under other statutes, the EPA would have been 
able to conduct BCA by using the latest state-of-the-art methods, 
without waiting for updates to the Benefit-Cost Rule. The EPA has 
determined, consistent with the approach in the Economic Guidelines and 
Circular A-4, that a more flexible approach than the Benefit-Cost Rule 
is warranted, and thus the Rule should be rescinded in its entirety.
3. The Benefit-Cost Rule Codified Certain Practices That Conflict With 
Best Science
    Implementation of some of the specific requirements of the Benefit-
Cost Rule would also undermine the quality of the EPA's BCA for CAA 
regulations. Some of the requirements for health benefits assessment 
promoted particular types of data in a way that could have conflicted 
with the use of best scientific practices. As discussed in Sections 
III.C.1 and 2 of this preamble, the codification of BCA practices in 
regulation as opposed to guidance presents significant disadvantages; 
this problem is only compounded where there are requirements in the 
regulation that are scientifically problematic. While the EPA is not 
asserting that every requirement in the Benefit-Cost Rule conflicted 
with sound scientific or economic best practices, the problematic 
elements were significant and difficult to address in piecemeal 
fashion. These substantive problems provide further support that the 
Rule as a whole should be rescinded.
    For example, the requirement in 40 CFR 83.3(a)(9)(iii)(C) to 
``employ or design an analysis that adequately addresses relevant 
sources of potential critical confounding'' could have led to inferior 
selection of health studies or the potential exclusion of some health 
endpoints altogether. Specifically, this requirement could prioritize 
the selection of studies that attempt to control for confounding,\36\ 
inappropriately or to an unwarranted extent, when scientific evidence 
demonstrates that a particular confounder is not important (e.g., not 
well correlated with the health outcome) or if the model incorporating 
a particular confounder yields implausible or unstable statistical 
results. In addition, the SAB advised that the proposed requirement 
regarding consideration of confounders was ``vague and would be 
difficult to implement'' since ``there is ample room for disagreement 
over which confounders are appropriate, or how to evaluate an actual 
confounding effect.'' \37\
---------------------------------------------------------------------------

    \36\ Confounding occurs when a variable is associated with both 
pollutant exposure and the health outcome, which could mask the true 
statistical association between them. For example, people are 
exposed to multiple pollutants in the ambient air that can be 
associated with the same health outcome. Epidemiologic studies 
attempt to control for confounding using a variety of methods, and 
relevant confounders vary across pollutants, health outcomes, and 
study designs. For more information, see Chapter 3 (Exposure to 
Ambient Particulate Matter) in: U.S. EPA. 2019. Integrated Science 
Assessment for Particulate Matter (Final Report); Research Triangle 
Park, NC, available at https://ofmpub.epa.gov/eims/eimscomm.getfile?p_download_id=539935.
    \37\ SAB (2020) at p. 11.
---------------------------------------------------------------------------

    As another example, the requirement in 40 CFR 83.3(a)(9)(iii)(D) to 
``consider how exposure is measured, particularly those that provide 
measurements at the level of the individual and that provide actual 
measurements of exposure'' introduced a bias against some higher 
quality methods. Specifically, this requirement suggested that 
individual-level or ``actual'' measurements are more highly valued than 
other established and accepted methods of estimating exposure. Though 
individual measures of exposure would be preferred, no population-level 
study has yet gathered these data due in part to the resources that 
would be required. Rather, most epidemiologic studies of air pollution 
use measures or models of concentrations in ambient air as a surrogate 
for human exposure. Indeed, measured concentrations from air quality 
monitors may yield less accurate estimates of exposure among 
populations living further from a monitor compared to modeled exposure. 
In addition, codifying a preference for measured concentrations could 
discourage consideration of studies that combine both measured and 
modeled concentrations. For example, studies that estimate air quality 
and human exposure using a combination of approaches (e.g., remote 
sensing techniques and/or models, ground-truthed by monitoring data) 
are preferred over those that use a single method (e.g., measured 
concentrations), because the combination of multiple estimation methods 
can reduce statistical bias and generate higher-resolution exposure 
estimates than data from a single monitor.\38\
---------------------------------------------------------------------------

    \38\ For more information, see Chapter 3 (Exposure to Ambient 
Particulate Matter) in U.S. EPA (2019).
---------------------------------------------------------------------------

    Further, the requirement in 40 CFR 83.3(a)(9)(i)(A) that the 
process of selecting human health benefit endpoints would be based upon 
scientific evidence that indicates there is ``a clear causal or likely 
causal relationship between pollutant exposure and effect'' did not 
derive from the Economic Guidelines, Circular A-4, or SAB advice. In 
fact, the SAB criticized the requirement that benefits analyses for 
health endpoints should be limited to those with a ``causal or likely 
causal'' relationship. Specifically, the SAB recommended the Rule allow 
for inclusion of effects for which the relationship may be less certain 
(e.g., ``possibly causal'') if the impact would be substantial, as a 
way to more completely account for uncertainties.\39\ The Benefit-Cost 
Rule did not address the SAB's recommendation.
---------------------------------------------------------------------------

    \39\ SAB (2020) at p. ii.
---------------------------------------------------------------------------

    The Benefit-Cost Rule in 40 CFR 83.3 also imposed disparate 
requirements on the consideration of costs and benefits that would have 
led to arbitrary and distorted BCAs. The Rule set a high bar for which 
benefits to include and how they should be calculated (scientific 
evidence indicates there is a clear causal or likely to be causal 
relationship between pollutant exposure and effect (40 CFR 
83.3(a)(9)(i)(a)), a preference for ``actual'' measurements (40 CFR 
83.3(a)(9)(iii)(D)), potentially prioritizing confounding controls over 
other considerations 40 CFR 83.3(a)(9)(iii)(C), etc.). By contrast, the 
Rule contained no requirements specific

[[Page 26413]]

to how costs were to be calculated (see generally 40 CFR 83.3). The EPA 
merely discussed in the preamble that certain approaches could generate 
``relatively precise'' and ``reasonable'' estimates of a proposed 
regulation's compliance costs. The Benefit-Cost Rule did not justify 
this disparity between setting highly specific and very stringent 
requirements for assessing benefits and substantially less stringent 
requirements for assessing costs. In addition, this requirement in the 
Benefit-Cost Rule only applied to health benefits, which created an 
inconsistency with other categories of benefits (e.g., visibility, 
ecological effects) that did not have this limitation. This could have 
led to misleading BCAs in future significant CAA rules. The Rule's 
inconsistencies with sound economic and scientific principles warrant 
the Rule's rescission.

D. The Benefit-Cost Rule's Presentational Requirements Invited Net 
Benefit Calculations in Regulatory Preambles That Are Misleading and 
Inconsistent With Economic Best Practices.

    We discuss in this section our reasons for rescinding the Rule's 
requirements in 40 CFR 83.4(a) and (b) to separately and selectively 
present certain subsets of benefits . The EPA already disaggregates 
benefit and cost estimates in BCAs, so these presentational 
requirements do not provide additional transparency.\40\ Moreover, the 
presentational requirements seemingly invited partial net benefit 
calculations that are contrary to economic best practice.
---------------------------------------------------------------------------

    \40\ See, e.g., Chapter 11 of the Economic Guidelines 
(Presentation of Analysis and Results) and Circular A-4 at p. 15.
---------------------------------------------------------------------------

    Both the Economic Guidelines and Circular A-4 explain what BCA is 
and its purpose in regulatory analysis. BCAs assess economic efficiency 
by asking whether it is theoretically possible for those who gain from 
the policy to fully compensate those who lose and remain better off. 
When the answer to this question is `yes,' then net benefits are 
positive, and the policy is a movement toward economic efficiency. The 
Economic Guidelines state that a BCA ``evaluates the favorable effects 
of policy actions and the associated opportunity costs of those 
actions'' and ``the calculation of net benefits helps ascertain the 
economic efficiency of a regulation.'' \41\ Circular A-4 further 
clarifies that ``[w]here all benefits and costs can be quantified and 
expressed in monetary units, benefit-cost analysis provides decision 
makers with a clear indication of the most efficient alternative, that 
is, the alternative that generates the largest net benefits to society 
(ignoring distributional effects). This is useful information for 
decision makers and the public to receive, even when economic 
efficiency is not the only or the overriding public policy objective.'' 
\42\
---------------------------------------------------------------------------

    \41\ Economic Guidelines at p. xi.
    \42\ Circular A-4 at p. 2.
---------------------------------------------------------------------------

    Both guidance documents are clear that net benefits are calculated 
by subtracting total costs from total benefits, regardless of whether 
the benefits and costs arise from intended or unintended consequences 
of the regulation. As Circular A-4 notes, the ``analysis should look 
beyond the direct benefits and direct costs of your rulemaking and 
consider any important ancillary benefits and countervailing risks,'' 
where an ancillary benefit is defined as a ``favorable impact of the 
rule that is typically unrelated or secondary to the statutory purpose 
of the rulemaking.'' \43\ This is particularly important in instances 
when unintended effects are important enough to potentially change the 
rank ordering of the regulatory options considered in the analysis or 
to potentially generate a superior regulatory option with strong 
ancillary benefits and fewer countervailing risks.
---------------------------------------------------------------------------

    \43\ Id. at p. 26. Ancillary benefits or benefits not related to 
the statutory provision under which a rule is promulgated have 
sometimes been called ``co-benefits.'' However, this term is 
imprecise and has been applied inconsistently in past practice, and 
as such should be avoided (unless the term is used explicitly in 
statutes).
---------------------------------------------------------------------------

    The Benefit-Cost Rule required the EPA to present in the preamble a 
summary of both the overall BCA results as well as an additional 
reporting of subsets of the total benefits of the rule. First, the Rule 
required a presentation of only the benefits ``that pertain to the 
specific objective (or objectives, as the case may be) of the CAA 
provision or provisions under which the significant regulation is 
promulgated.'' \44\ Second, the Rule required that if any benefits and 
costs accrue to non-U.S. populations, they must be reported separately 
to the extent possible.\45\ These presentational requirements are 
duplicative of existing information provided because the EPA already 
presents these types of benefits in disaggregated form in Regulatory 
Impact Analyses (RIAs), so there was no lack of transparency with 
respect to these subsets of benefits. The additional requirement to 
separately present and articulate these benefits was problematic 
because it could have resulted in, and seemingly invited, misleading 
net benefit calculations that excluded impacts that were due to the 
regulation. For example, in the final Affordable Clean Energy Rule, the 
EPA provided complete net benefit calculations consistent with economic 
best practices, but also used calculations of segregated benefits--like 
those required under the Benefit-Cost Rule--to create tables of ``net'' 
benefit calculations (i.e., benefits minus costs) that accounted for 
only a subset of the rule's benefits.\46\ In addition, requiring a 
separate presentation that excluded certain categories of benefits that 
Circular A-4 and the Economic Guidelines indicate should be considered 
could call into question, without justification, the significance of 
those benefits. Such an exclusion is inconsistent with the purpose of 
BCA and thus would have promoted arbitrary rather than informed 
decision-making.
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    \44\ 40 CFR 83.4(b).
    \45\ 40 CFR 83.4(a).
    \46\ See 84 FR 32520, 32572 tbl.10-12 (July 8, 2019).
---------------------------------------------------------------------------

E. The Benefit-Cost Rule Did Not Reconcile Its Consideration 
Requirement With the Substantive Mandates of the CAA.

    In this section, we address the Rule's requirement that the Agency 
``consider'' the required BCAs in decision making and the Rule's stated 
intention to make compliance with the Rule enforceable by outside 
parties through judicial review. As a preliminary matter, we did not 
intend these aspects of the Rule to be read as creating a substantive 
cause of action, and we do not think the record for the Benefit-Cost 
Rule supports such a position. Moreover, after reviewing the record for 
the Benefit-Cost Rule, we conclude that the Rule's failure to identify 
the CAA provisions to which it would apply, much less its lack of any 
explanation of how to reconcile the Rule's requirement to ``consider'' 
the BCA in the context of the various CAA provisions, as discussed in 
Sections E.1 and E.2 of this preamble, support rescission of the Rule. 
First, for CAA provisions where the EPA is prohibited from considering 
costs, the Rule's requirement to prepare a BCA and include it in the 
judicially reviewable rulemaking record solely for the purpose of 
providing ``additional information'' is not necessary to effect any 
purpose under the Act. Second, for CAA provisions that do permit some 
consideration of cost or other economic factors, the Rule did not 
explain why BCA is an appropriate way to consider cost, particularly 
given the existence of areas in which Congress required the EPA to 
regulate despite anticipating that

[[Page 26414]]

few, if any, benefits could be monetized. Because the EPA would 
essentially have to give the newly required BCA little to no weight in 
such situations, we fail to see why the added procedure was a necessary 
one to carry out the statute. To the contrary, we conclude that the 
traditional, pre-existing manner of interpreting and implementing the 
CAA is the better way to interpret and apply the CAA.
    Addressing the preliminary question noted above, to the extent that 
these aspects of the Benefit-Cost Rule could be read as requiring more 
than just an additional procedural step, such a reading would be 
impermissible. The EPA's general-rulemaking authority under CAA section 
301(a) is broad, but the authority ``to issue ancillary regulations is 
not open-ended, particularly when there is statutory language on 
point.'' \47\ Given the complexity of the CAA, including the numerous 
provisions addressing the authority of the Agency to consider costs, 
the EPA could not have issued a substantive rule along the lines of the 
Benefit-Cost Rule under our general rulemaking authority without 
substantial, additional analysis and explanation addressing the 
specific requirements of the Act. The EPA acknowledged as much in the 
preamble to the Benefit-Cost Rule in discussing our view that the 
Agency's compliance with what we characterized as ``these procedural 
requirements'' would be subject to judicial review but admitting also 
that we had not based the Rule on any interpretation of the substantive 
provisions of the CAA.\48\ Notwithstanding this discussion, to the 
extent that some may have viewed the Benefit-Cost Rule as creating a 
new avenue for substantive judicial review of future CAA actions, which 
was not intended, we do not agree that the Benefit-Cost Rule and its 
record could support such a view, and this supports rescinding the 
Rule. At most, we believe that the procedural requirements in the 
Benefit-Cost Rule--similar to an Agency's failure to provide adequate 
notice under the APA or CAA 307(d)--could only have provided a basis 
for remanding a rule to the Agency to cure process flaws. Rescinding 
the Rule will avoid misunderstanding that the Rule created a 
substantive cause of action and will avoid unnecessary litigation 
contending that the Rule had substantive impacts that were not intended 
and not supported.
---------------------------------------------------------------------------

    \47\ See NRDC v. EPA, 749 F.3d 1055, 1063-64 (D.C. Cir. 2014) 
(citing American Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. 
Cir. 1995).
    \48\ 85 FR 84138.
---------------------------------------------------------------------------

    This view is consistent with provisions in the CAA indicating that 
Congress did not intend that additional analytical requirements such as 
those at issue in the Benefit-Cost Rule should play a substantive role 
in determining compliance with statutorily mandated agency action. In 
CAA section 317, Congress created a process by which it required the 
EPA to prepare an economic impact assessment prior to issuing proposed 
rulemakings for seven types of regulations under the Act.\49\ However, 
Congress was careful to point out that the specific statutory mandates 
underlying the regulations are controlling and that failure to comply 
with the additional economic impact assessment requirements is not a 
basis upon which review can be obtained for the applicable rules.\50\ 
Congress even explicitly stated that where a statutory provision 
required the Agency to consider costs, ``the adequacy or inadequacy of 
any assessment required under [CAA section 317] may be taken into 
consideration, but shall not be treated for purposes of judicial review 
of any such provision as conclusive with respect to compliance or 
noncompliance with the requirement of such provision to take cost into 
account.'' CAA section 317(g). If Congress did not want its own 
statutorily mandated economic impact assessments to provide a basis to 
invalidate CAA rules, then it is unlikely Congress would have granted 
the EPA authority to create a new substantive cause of action based on 
failure to comply with a procedural rule establishing BCA requirements.
---------------------------------------------------------------------------

    \49\ The Benefit-Cost Rule did address comments regarding CAA 
section 317, but its discussion of that provision is limited to 
making the point that nothing in CAA section 317 precludes the 
Agency from requiring any additional analysis, such as its BCA. See 
Response to Comments (RTC) at page 53, available in the docket at 
EPA-HQ-OAR-2020-0044-0687.
    \50\ CAA section 317(c) (``Nothing in this section shall be 
construed to provide that the analysis of the factors specified in 
this subsection affects or alters the factors which the 
Administrator is required to consider in taking any [covered] 
action''); CAA section 317(e) (``Nothing in this section shall be 
construed--(1) to alter the basis on which a standard or regulation 
is promulgated under this chapter; (2) to preclude the Administrator 
from carrying out his responsibility under this chapter to protect 
public health and welfare; or (3) to authorize or require any 
judicial review of any such standard or regulation or any stay or 
injunction of the proposal, promulgation, or effectiveness of such 
standard or regulation on the basis of failure to comply with this 
section.'').
---------------------------------------------------------------------------

1. The Rule Is Plainly Unnecessary With Respect to CAA Provisions That 
Prohibit the EPA From Considering Cost
    The Benefit-Cost Rule's requirement to prepare a BCA applied to all 
significant CAA rulemakings, including those promulgated under CAA 
provisions that prohibit consideration of cost or other economic 
factors. The only waiver from the Rule's requirements for these 
rulemakings was that the BCA need not be ``considered'' in such cases 
where ``the provision or provisions . . . prohibit the consideration of 
the BCA.'' \51\ In the final rule, the Agency reasoned that ``while 
certain statutory provisions may prohibit reliance on BCA or other 
methods of cost consideration in decision-making, such provisions do 
not preclude the Agency from providing additional information regarding 
the impacts of a proposed or final rule to the public. For example, 
while the CAA prohibits the EPA from considering cost when establishing 
or revising requisite NAAQS for certain criteria pollutants, the EPA 
nonetheless provides RIAs to the public for these rulemakings.'' \52\ 
The desire to provide ``additional information'' for those rules where 
Congress prohibited the EPA from considering cost does not on its face 
fall within CAA section 301(a)'s authority to promulgate regulations as 
are necessary to carry out the statute. We therefore find the Rule's 
application to CAA provisions that prohibit the consideration of cost 
to be inconsistent with the Act.
---------------------------------------------------------------------------

    \51\ 40 CFR 83.2(b).
    \52\ 85 FR 84134.
---------------------------------------------------------------------------

    To support the argument for broad application of the Benefit-Cost 
Rule, the EPA asserted equivalency between the Benefit-Cost Rule's 
requirements and the EPA's historic preparations of RIAs for 
rulemakings under which it was prohibited from considering costs, such 
as setting the NAAQS. We have concluded, however, that even where 
equivalent, the EPA's past practices do not provide support for a 
conclusion that such practices are necessary to carry out the Act. In 
addition, the new procedures promulgated under the Rule made two key 
changes to the existing process under which the EPA prepared RIAs for 
economically significant rulemakings. The Benefit-Cost Rule required 
that the EPA develop a BCA meeting very specific requirements (as 
opposed to one tailored to the rule at issue, as permissible under 
existing guidance, see Section III.C of this preamble), and perhaps 
more importantly, it required the EPA to include the results of the BCA 
and how the information was considered in the preambles to forthcoming 
proposed and final rules promulgated under the CAA. That is, the BCA 
mandated by the Rule was explicitly required to be part of the Agency's 
record for decision-making. In

[[Page 26415]]

addition, the Benefit-Cost Rule's preamble stated the Agency's 
compliance with the Rule's requirements would be subject to judicial 
review. See the preamble to the final rule (``[T]he Final Rule is 
binding upon the Agency for significant CAA regulations, and . . . 
EPA's compliance is subject to judicial review in challenges to such 
rulemakings.'').\53\ These changes are in stark contrast to the 
existing process for interagency review for rules such as the NAAQS, 
where the EPA does not include the RIA as part of its administrative 
record for the rulemaking, nor is compliance with the E.O. subject to 
judicial review.\54\
---------------------------------------------------------------------------

    \53\ 85 FR 84138.
    \54\ While the earlier E.O.s that required a regulatory analysis 
(i.e., E.O. 12291 (46 FR 13193, February 17, 1981)) contained a 
requirement that BCAs prepared per E.O.s be included in the Agency's 
rulemaking record, that directive was removed from E.O. 12866, which 
replaced the prior E.O. Compare E.O. 12291 section 9 (``The 
determinations made by agencies under Section 4 of this Order, and 
any Regulatory Impact Analyses for any rule, shall be made part of 
the whole record of agency action in connection with the rule.'') 
with E.O. 12866 section 11 (containing no such requirement). Neither 
E.O. has ever subjected agency compliance with these E.O.s to 
judicial review. See E.O. 12866, section 11 (``Nothing in this 
Executive order shall affect any otherwise available judicial review 
of agency action. This Executive Order is intended only to improve 
the internal management of the Federal Government and does not 
create any right or benefit, substantive or procedural, enforceable 
at law or equity by a party against the United States, its agencies 
or instrumentalities, its officers or employees, or any other 
person.''); E.O. 12291, section 9 (``This Order is intended only to 
improve the internal management of the Federal government, and is 
not intended to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the United States, 
its agencies, its officers or any person.'').
---------------------------------------------------------------------------

    The Benefit-Cost Rule's proffered explanations for why the Rule was 
necessary are expressly tied, in part, to these two changes. The Rule 
noted that one motivation for requiring BCAs was that ``courts have 
noted the usefulness of BCA and have utilized the information provided 
therein to inform their analysis when reviewing agency-created BCAs 
and/or RIAs as evidence that an agency ignored alternatives or acted in 
an arbitrary or capricious manner when taking action.'' \55\ Similarly, 
the EPA articulated that it viewed enforceability of its new 
requirements as critical to its argument that the Rule was necessary. 
In the Response to Comments document, the Agency stated, ``EPA has not 
had procedural enforceable regulations in place to ensure consistency 
in its past BCA practices. To the extent that commenters assert that 
EPA's past practice has been consistent and transparent, it is not due 
to an enforceable standardized approach that would ensure such a 
result. . . . Without enforceable procedural regulations for BCA, 
future regulations may be promulgated without consideration of, and 
public accountability concerning, their costs and benefits. Thus, the 
EPA has determined that the Final Rule is necessary to ensure that BCA 
practices are implemented in a consistent fashion prospectively.'' \56\
---------------------------------------------------------------------------

    \55\ 85 FR 84134.
    \56\ RTC at Chapter 3.1.1, p. 32.
---------------------------------------------------------------------------

    But neither of these reasons articulating the necessity of the Rule 
can extend to regulations promulgated under CAA provisions where the 
Agency is prohibited from considering cost or economic factors. Where 
Congress did not intend the EPA to consider cost, there would be no 
purpose for the EPA to incorporate a BCA into its rulemaking record, 
and it would be contrary to the CAA to subject a Congressionally-
required rule to review based on failure to adhere to an agency-created 
mandate to prepare a BCA where the statute precludes consideration of 
cost.

2. For Provisions That Permit Consideration of Cost or Economic 
Factors, the Requirement To Consider BCA Is Unwarranted Because 
Implementation of Those Provisions Should Begin With Analysis of 
Statutory Text and Context

    The CAA contains a vast array of instructions about whether and how 
the EPA may consider benefits, costs, or other economic factors, and 
discerning Congress' intent with respect to those instructions requires 
analysis of statutory context.\57\ Rather than grapple with any of the 
statutory provisions at issue, the Benefit-Cost Rule assumed that 
because Congress provided authority for the EPA to consider costs in 
making some regulatory decisions, and because courts have concluded 
that BCA may be an appropriate way for agencies to account for costs in 
some contexts, it was ``necessary'' and reasonable that the EPA should 
require consideration of BCA in all significant CAA rules where it was 
not precluded from doing so. However, this faulty logic does not 
constitute an adequate justification, and the EPA has concluded that 
the Rule's approach is inferior to the existing process of interpreting 
and applying the relevant CAA provisions.
---------------------------------------------------------------------------

    \57\ Three Supreme Court cases from the last two decades 
addressing whether the EPA properly interpreted the CAA with respect 
to whether it could consider cost illustrate the critical role of 
context and purpose in statutory interpretation. See Whitman v. Am. 
Trucking Ass'ns, 531 U.S. 457 (2001); EPA v. EME Homer City 
Generation, L.P., 572 U.S. 489 (2014); Michigan v. EPA, 576 U.S. 743 
(2015).
---------------------------------------------------------------------------

    Under the CAA, Congress granted the EPA broad powers to act on 
behalf of protecting and enhancing the nation's air resources. The Act 
specifically directs the EPA to, among other things, set NAAQS, 
establish emission standards for both stationary and mobile sources of 
air pollution, reduce emissions of nearly 200 specified hazardous air 
pollutants, regulate fuels and fuel additives, and issue permits and 
enforce the Act's emission limits. In these various authorities, 
Congress established a wide range of direction with respect to the 
EPA's consideration of benefits, costs, or other economic factors.\58\ 
With respect to costs, the statutory text in some provisions explicitly 
indicates that the EPA should incorporate a consideration of cost or 
economic factors.\59\ Other authorities suggest by implication that the 
EPA should or may consider costs, using language directing the EPA to 
establish standards that are ``practicable,'' ``reasonably 
achievable,'' or ``feasible.'' \60\ And in many if not all of the CAA 
authorities, Congress made clear that the EPA was to give strong, if 
not overriding, consideration to the ``benefits'' of its regulations--
i.e., beneficial effects on public health, welfare, risk prevention, 
the

[[Page 26416]]

environment, safety, and visibility, to name but a few.
---------------------------------------------------------------------------

    \58\ For additional information regarding various CAA 
authorities and discussion of cost, see Congressional Research 
Service (CRS) report titled ``Cost and Benefit Considerations in 
Clean Air Act Regulations.'' In the report, the CRS identifies 
various CAA authorities that either mention or imply cost 
considerations and authorities that neither mention nor imply cost 
consideration. May 5, 2017, available at https://crsreports.congress.gov/product/pdf/R/R44840/4.
    \59\ Examples include: The setting of emission standards for new 
stationary sources in section 111, going ``beyond the floor'' in 
emission standards for sources of 187 hazardous air pollutants in 
section 112(d), setting emission standards for motor vehicles beyond 
those standards listed in the act under sections 202(a) and 202(i), 
controlling mobile source air toxics under section 202(l), 
controlling or prohibiting the manufacture and sale of fuels and 
fuel additives under section 211(c), requiring the sale of 
reformulated gasoline in nonattainment areas under section 211(k), 
setting emission standards for nonroad vehicles and engines under 
section 213, and setting emission standards for locomotives, buses, 
and aircraft, under sections 213, 219, and 231.
    \60\ Examples include: Providing for the use of ``generally 
available control technologies'' to control area sources of 
hazardous pollutants under section 112(d)(5), promulgating 
``reasonable regulations and appropriate guidance to provide, to the 
greatest extent practicable, for the prevention and detection of 
accidental releases,'' of extremely hazardous substances and take 
into consideration ``the concerns of small business,'' under section 
112(r)(7), and imposing emission standards or emission control 
technology requirements that ``reflect the best retrofit technology 
and maintenance practices reasonably achievable'' for retrofit of 
urban buses under section 219(d).
---------------------------------------------------------------------------

    In the Benefit-Cost Rule, the EPA presumed that its requirements 
were permissible because it ``was not aware of any impediment to this 
rulemaking.'' \61\ But the Rule failed to identify, much less discuss, 
any statutory provision governing the rules to which its requirements 
would have applied. The EPA is bound to look to the statutory language 
and context of a particular provision, and in some cases consider the 
factual circumstances of the issue the agency is attempting to address 
in determining whether and how the EPA may consider benefits, costs, 
and other factors.\62\
---------------------------------------------------------------------------

    \61\ 85 FR 84138.
    \62\ See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 
508 (1981); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 
(2009).
---------------------------------------------------------------------------

    The Benefit-Cost Rule's failure to examine the statutory provisions 
governing the regulations it would impact would have resulted in cases 
where the Rule required ``consideration'' of BCAs where it may not have 
been feasible to even produce a meaningful or useful BCA. Even for 
those CAA provisions where cost may be considered, BCA is not 
necessarily useful, and may even be misleading. As Circular A-4 has 
noted, ``[w]here all benefits and costs can be quantified and expressed 
as monetary units, benefit-cost analysis provides decision makers with 
a clear indication of the most efficient alternative.'' \63\ Circular 
A-4 goes on to caution, however, that it is not always possible to 
quantify benefits (or costs), and ``[w]hen important benefits and costs 
cannot be expressed in monetary units, BCA is less useful, and it can 
even be misleading, because the calculation of net benefits in such 
cases does not provide a full evaluation of all relevant benefits and 
costs.'' \64\
---------------------------------------------------------------------------

    \63\ Circular A-4 at p. 2.
    \64\ Id. at p. 10.
---------------------------------------------------------------------------

    This caution is relevant as there are a number of authorities under 
the CAA authorizing or requiring the EPA to regulate pollutants where, 
in many cases, important benefits cannot readily be monetized. For 
example, in CAA section 112(d)(2), the Act prescribes that the EPA 
establish emission standards based on maximum achievable control 
technology or ``MACT'' for new and existing sources of hazardous air 
pollutants. Section 112 authorizes the EPA to consider costs at some 
steps in this process but not at the first step of establishing the 
minimum stringency emission limit, because Congress recognized the 
dangerous nature of hazardous and toxic air pollutants. Where the EPA 
can consider cost in this context (e.g., requiring more stringent 
emission limits), it has not historically used BCA to establish 
appropriate emission standards. We note that as methods do not yet 
exist that can reliably quantify the value of changes in many HAP-
related risks, a BCA would include only a qualitative assessment of the 
benefits of HAP reductions. In other words, while we know that there 
are important health outcomes associated with exposure to HAP that 
include cancer, birth defects, reproductive effects, and 
neurodevelopmental defects, we currently lack the ability to precisely 
quantify and fully monetize all of the benefits of a change in the MACT 
standard. In implementing section 112, the EPA has therefore 
historically employed other types of analyses, such as examining the 
cost per ton of emissions removed.\65\
---------------------------------------------------------------------------

    \65\ See, e.g., Natl. Ass'n of Clean Water Agencies v. EPA, 734 
F.3d 1115, 1157 (D.C. Cir. 2013).
---------------------------------------------------------------------------

    Perhaps recognizing the varied landscape presented by the CAA's 
provisions, the Benefit-Cost Rule ultimately only required that its BCA 
be ``considered,'' but prescribed no further instruction or requirement 
as to how the Agency should consider it.\66\ The Agency had taken 
comment on the possibility of requiring a more substantive outcome, 
soliciting input ``on approaches for how the results of the BCA could 
be weighed in future CAA regulatory decisions,'' including ``whether 
and under what circumstances the EPA could or should determine that a 
future significant CAA regulation be promulgated only when the benefits 
of the intended action justify its costs'' or ``only when monetized 
benefits exceed the costs of the action.'' \67\ Because the final 
Benefit-Cost Rule did not strictly direct how the Agency should weigh 
BCA in its future CAA rulemakings, the EPA could have formally complied 
with the Rule while giving the BCA little to no weight in its decision 
making. The need to adhere to the particular statutory language and 
context governing the significant CAA rulemaking at issue, including 
examples like the one cited above, would make that outcome plausible, 
if not likely. By appropriately allowing the EPA to determine how best 
to consider benefits, costs, and other factors in the context of a 
particular statutory provision, the Benefit-Cost Rule conceded that it 
may serve no purpose in helping the EPA to effectuate the purposes of 
the Act. At the same time, by acknowledging that the Agency's choice of 
analysis depends on what each CAA provision requires or permits,\68\ 
the Benefit-Cost Rule refuted its claim that the Rule provided 
``consistency.''
---------------------------------------------------------------------------

    \66\ See 40 CFR 83.2(b).
    \67\ 85 FR 35623.
    \68\ See 40 CFR 83.2(b); 40 CFR 83.4(d).
---------------------------------------------------------------------------

    Given the exacting demands of discerning Congressional intent in 
any given CAA provision, we conclude that returning to implementation 
of the CAA using the traditional process of statutory interpretation 
provides advantages over the Benefit-Cost Rule's presumption that 
consideration of BCA is ``necessary'' and reasonable to promulgate all 
significant CAA regulations regardless of statutory text and context. 
Under its pre-existing process, the Agency first looks to the text of 
the relevant statutory provision to determine whether Congress intended 
or permitted the Agency to consider cost or economic factors. If yes, 
the Agency further looks to the statutory context, legislative history, 
and the nature of the program or environmental problem to be addressed 
to determine a reasonable manner of considering cost. We conclude that 
this process of interpreting and discerning Congress' intent, subject 
to public notice and comment and judicial review, is superior to the 
Benefit-Cost Rule's presumptive imposition to consider BCA followed by 
a subsequent attempt to reconcile with the statutory text.

F. The Pre-Existing Administrative Process Provides for Ample 
Consistency and Transparency

    In the Benefit-Cost Rule the EPA also failed to establish that its 
requirements were needed with respect to process, in light of the 
existing procedures under the APA and, where applicable, CAA section 
307(d). These requirements are more than adequate to accomplish the 
general good government goals of ``consistency'' and ``transparency,'' 
and the Benefit-Cost Rule failed to provide any support for its 
contention that the pre-existing process was deficient so as to warrant 
the Rule's new procedures.
    When promulgating regulations under the CAA such as those targeted 
by the Benefit-Cost Rule, the EPA is already required by statute to 
provide ``[g]eneral notice of proposed rulemaking'' in ``the Federal 
Register,'' including the legal authority under which the rule is 
proposed and the terms or substance of the proposed rule.\69\ Moreover, 
the EPA must give interested persons an opportunity to participate in 
the rulemaking through submission of written data, views, or 
arguments.\70\ For many rules promulgated under the

[[Page 26417]]

CAA, including those designated by the Administrator, CAA section 
307(d) further requires the establishment of a rulemaking docket,\71\ 
and specifies that the notice of proposed rulemaking must include a 
summary of ``the factual data on which the proposed rule is based,'' 
\72\ ``the methodology used in obtaining the data and in analyzing the 
data,'' \73\ and ``the major interpretations and policy considerations 
underlying the proposed rule.'' \74\ CAA section 307(d)(2) also 
requires the EPA to ``set forth and summarize and provide a reference 
to any pertinent findings, recommendations, and comments by the 
Scientific Review Committee . . . and the National Academy of Sciences, 
and, if the proposal differs in any important respect from any of these 
recommendations, an explanation of the reasons for such differences.''
---------------------------------------------------------------------------

    \69\ 5 U.S.C. 553(b); CAA section 307(d)(3).
    \70\ 5 U.S.C. 553(c); CAA section 307(d)(5).
    \71\ CAA 307(d)(2).
    \72\ CAA section 307(d)(2)(A).
    \73\ CAA section 307(d)(2)(B).
    \74\ CAA section 307(d)(2)(C).
---------------------------------------------------------------------------

    The EPA must respond to all significant comments it receives on its 
proposed regulations before issuing a final rule, including contentions 
from stakeholders that the EPA has failed to reasonably consider the 
costs or benefits of an action. See Home Box Office, Inc. v. FCC, 567 
F.2d 9, 35-36 (D.C. Cir. 1977) (``[t]he opportunity to comment is 
meaningless unless the agency responds to significant points raised by 
the public); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 
402, 416 (1971) (requiring reviewing court to assure itself that all 
relevant factors have been considered by the agency). Such comments can 
encompass arguments that by failing to conduct a BCA, the EPA has 
contravened the CAA or complaints that its data or analysis is flawed 
or arbitrary. Where the EPA promulgates a final CAA section 307(d) 
rule, the EPA is required to provide ``a response to each of the 
significant comments, criticisms, and new data submitted in written or 
oral presentations during the comment period.'' \75\ The EPA is 
forbidden from promulgating a rule based on ``any information or data 
which has not been placed in the docket as of the date of . . . 
promulgation.'' \76\
---------------------------------------------------------------------------

    \75\ CAA section 307(d)(6)(B).
    \76\ CAA section 307(d)(6)(C).
---------------------------------------------------------------------------

    While ``agencies should be free to fashion their own rules of 
procedure,'' \77\ and ``are free to grant additional procedural rights 
in the exercise of their discretion,'' \78\ where Congress so carefully 
specified the procedural requirements for CAA rules (at least those 
enumerated in section 307(d)), we question the wisdom of adding to 
those procedures an additional BCA requirement, particularly where the 
EPA did not show that statutory procedures were deficient.\79\
---------------------------------------------------------------------------

    \77\ Vermont Yankee Nuclear Power Corp. v. Natural Resources 
Defense Council, Inc., 435 U.S. 519, 544 (1978).
    \78\ Id. at 524.
    \79\ See NRDC v. Reilly, 976 F.2d 36, 41 (D.C. Cir. 1992) (EPA 
cannot use its general rulemaking authority as justification for 
adding to a statutorily specified list); NRDC v. EPA, 749 F.3d at 
1064 (``EPA cannot rely on its gap-filling authority to supplement 
the Clean Air Act's provisions when Congress has not left the agency 
a gap to fill.'').
---------------------------------------------------------------------------

    The Benefit-Cost Rule did not explain how the pre-existing ample 
public process was inadequate to accomplish the rule's stated goals of 
promoting consistency and transparency. The existing process already 
requires the EPA to present in a proposed notice published in the 
Federal Register its relevant interpretations of a particular statutory 
provision regarding whether and how it considers costs and benefits. 
The existing process already permits interested parties to promote 
during the public comment period a view that weighing the results of a 
BCA is a valuable or appropriate way for the EPA to consider costs, 
benefits, or other factors specified in the provision of the Act under 
which a rule is promulgated; any views asserting that the agency has 
not been transparent in providing factual data, methodologies, legal 
interpretations, and policy considerations; or any views asserting that 
the agency has been inconsistent in its interpretations. The existing 
process, under CAA section 307(b), already subjects any failure on the 
EPA's part to grapple with significant comments to review by the U.S. 
Courts of Appeals.\80\
---------------------------------------------------------------------------

    \80\ Outside parties regularly exercise their right to challenge 
the EPA's actions under the CAA. In a 2011 report, the Government 
Accountability Office found that during a 16-year period between 
1995 and 2010, about 2,500 environmental cases were brought against 
the EPA. Of those challenges, CAA cases were more than twice as 
common as cases brought under any other statute (i.e., comparing the 
three most litigated groups of actions: 59% of cases were brought 
under the CAA, 20% under the Clean Water Act, and 6% under Resource 
Conservation and Recovery Act). Environmental Litigation: Cases 
against EPA and Associated Costs over Time, GAO-11-650, August 2011, 
available at https://www.gao.gov/assets/gao-11-650.pdf.
---------------------------------------------------------------------------

    Therefore, the EPA has determined that the existing process already 
provides sufficient consistency and transparency.

IV. Rulemaking Procedures, Procedural Rule Exemption, and Request for 
Comment

    In this action, the EPA is issuing an interim final rule to rescind 
the Benefit-Cost Rule in its entirety and requesting comment on that 
action. We intend to follow this interim final rule with a final rule 
that responds to comments received during this public comment period, 
if any, and reflects any accompanying changes to the Agency's approach. 
This interim final rule will stay in place until it is replaced by the 
final rule that responds to any public comments and makes any warranted 
changes. This interim final rule will become effective 30 days after 
publication.
    Like the Benefit-Cost Rule that this rule rescinds, this interim 
final rule is a rule of agency organization, procedure, or practice. 
This procedural rule does not regulate any party outside of the EPA but 
instead exclusively governs the EPA's internal process for conducting 
benefit-cost analysis. This interim final rule does not regulate the 
rights and obligations of any party outside of the EPA nor does it have 
any legal force and effect on them. Any incidental impacts on voluntary 
behavior outside of the EPA do not render this a substantive rule.
    While procedural rules are exempt from the APA's notice and public 
comment requirements, see 5 U.S.C. 553(b)(A), the EPA has nonetheless 
decided to voluntarily seek post-promulgation public comment on this 
procedural interim final rule and follow it with a final rule because 
the information and opinions the public may provide could inform the 
Agency's decision-making.\81\ By electing to proceed with an interim 
final rule rather than a final rule, the EPA is acting consistently 
with Administrative Conference of the United States Recommendation 95-
4, which recommends that agencies consider providing post-promulgation 
notice and comment even where an exemption is justified, be it a 
substantive rule relying on the ``good cause'' exception to notice and 
comment, 5 U.S.C. 553(b)(B), or a procedural rule such as this one.\82\
---------------------------------------------------------------------------

    \81\ Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. 
Council, Inc., 435 U.S. 519, 524 (1978) (``Agencies are free to 
grant additional procedural rights in the exercise of their 
discretion.'').
    \82\ See ACUS Recommendation 95-4, Procedures for 
Noncontroversial and Expedited Rulemaking (1995).
---------------------------------------------------------------------------

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2020-
0044, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be

[[Page 26418]]

Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The EPA is temporarily suspending its Docket Center and Reading 
Room for public visitors to reduce the risk of transmitting COVID-19. 
Written comments submitted by mail are temporarily suspended and no 
hand deliveries will be accepted. Our Docket Center staff will continue 
to provide remote customer service via email, phone, and webform. We 
encourage the public to submit comments via https://www.regulations.gov. For further information and updates on EPA Docket 
Center services, please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

B. Participating in a Virtual Public Hearing

    If a member of the public requests one, the EPA will hold a virtual 
public hearing on this interim final rulemaking on Wednesday, June 9, 
2021. Please note that any hearing would be a deviation from the EPA's 
typical approach because the President has declared a national 
emergency. Because of current CDC recommendations, as well as state and 
local orders for social distancing to limit the spread of COVID-19, the 
EPA cannot hold in-person public meetings at this time.
    Upon publication of this document in the Federal Register, the EPA 
will accept requests for a public hearing. If a hearing is requested, 
the EPA will also begin pre-registering speakers and attendees for the 
requested hearing. The EPA will accept registrations on an individual 
basis. To register to speak at the virtual hearing, individuals may use 
the online registration form available via the EPA's Increasing 
Consistency and Transparency in Considering Costs and Benefits in the 
Rulemaking Process web page for this hearing (https://www.epa.gov/air-and-radiation/rescission-2020-benefit-cost-rule) or contact Leif 
Hockstad at (202) 343-9432 or [email protected]. The last day to 
pre-register to speak at the hearing will be Wednesday, June 2, 2021. 
On Monday, June 7, 2021, if a hearing has been requested, the EPA will 
post a general agenda for the hearing that will list pre-registered 
speakers in approximate order at: https://www.epa.gov/air-and-radiation/rescission-2020-benefit-cost-rule.
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing, if held; however, please plan for 
the hearing to run either ahead of schedule or behind schedule. 
Additionally, requests to speak will be taken the day of the hearing at 
the end of each session as timing allows. The EPA will make every 
effort to accommodate all speakers.
    Each commenter will have 3 minutes to provide oral testimony. The 
EPA recommends submitting the text of your oral comments as written 
comments to the rulemaking docket. The EPA may ask clarifying questions 
during the oral presentations but will not respond to the presentations 
at that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
oral comments and supporting information presented at the public 
hearing.
    The EPA is also asking hearing attendees to pre-register for the 
hearing, if held, even those who do not intend to provide testimony. 
This will help the EPA ensure that sufficient phone lines will be 
available.
    Please note that any updates made to any aspect of the hearing 
logistics, including potential additional sessions, will be posted 
online at the EPA's Rescission of the Benefit-Cost Rule website 
(https://www.epa.gov/air-and-radiation/rescission-2020-benefit-cost-rule). While the EPA expects the hearing, if held, to go forward as set 
forth above, please monitor our website or contact the person listed in 
the FOR FURTHER INFORMATION CONTACT section to determine if there are 
any updates.
    If you require the services of a translator or special 
accommodations such as audio description, please pre-register for the 
hearing and describe your needs by Wednesday, June 2, 2021. The EPA may 
not be able to arrange accommodations without advanced notice.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket. The EPA does not anticipate that this rulemaking will have an 
economic impact on regulated entities. This is a rule of agency 
procedure and practice.

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 action would not regulate any entity outside the federal 
government and is a rule of agency procedure and practice.

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

[[Page 26419]]

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 the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' within the 
meaning of Executive Order 13211. It is not likely to have a 
significant adverse effect on the supply, distribution or use of 
energy, and it has not otherwise been designated as a significant 
energy action by the Administrator of the Office of Information and 
Regulatory Affairs (OIRA).

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 that results in 
disproportionate impacts on minority and low-income populations.

K. Congressional Review Act (CRA)

    This rule is exempt from CRA because it is a rule of agency 
organization, procedure, or practice that does not substantially affect 
the rights or obligations of nonagency parties.

List of Subjects in 40 CFR Part 83

    Environmental protection, Administrative practice and procedure, 
Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.

PART 83--[REMOVED AND RESERVED]

0
For the reasons stated in the preamble, and under the authority of 42 
U.S.C. 7601, the EPA removes and reserves 40 CFR part 83.

[FR Doc. 2021-10216 Filed 5-13-21; 8:45 am]
BILLING CODE 6560-50-P