[Federal Register Volume 86, Number 94 (Tuesday, May 18, 2021)]
[Rules and Regulations]
[Pages 26842-26843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10269]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[EPA-HQ-OA-2020-0128, FRL-10024-07-OP]
RIN 2010-AA15


EPA Guidance; Administrative Procedures for Issuance and Public 
Petitions; Rescission

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; rescission of regulations.

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SUMMARY: In accordance with the Presidential directive of January 20, 
2021, ``Revocation of Certain Executive Orders Concerning Federal 
Regulation,'' the Environmental Protection Agency (EPA) is rescinding 
its October 19, 2020, final rule establishing administrative procedures 
for issuing Agency guidance documents.

DATES: This final rule is effective on May 18, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OA-2020-0128. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through https://www.regulations.gov. For information on the EPA Docket 
Center services and the current status, please visit us online at 
https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Sharon Cooperstein, Policy and 
Regulatory Analysis Division, Office of Regulatory Policy and 
Management (Mail Code 1803A), Environmental Protection Agency, 1200 
Pennsylvania Avenue Northwest, Washington, DC 20460; telephone number: 
202-564-7051; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. What action is the Agency taking?

    In accordance with E.O. 13992, ``Revocation of Certain Executive 
Orders Concerning Federal Regulation,'' issued by President Biden on 
January 20, 2021 (86 FR 7049, January 25, 2021), the EPA is rescinding 
the final rule (85 FR 66230, October 19, 2020) that established the 
procedures and requirements regarding the issuance, revision, and 
withdrawal of guidance documents. The prior final rule was promulgated 
to implement E.O. 13891, ``Promoting the Rule of Law Through Improved 
Agency Guidance Documents'' (84 FR 55235, October 15, 2019).

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

    The revisions to the EPA's policies and requirements surrounding 
guidance are matters of agency organization, procedure, or practice 
that lack the force and effect of law. Accordingly, the EPA is not 
required to engage in a notice and comment process to issue or revise 
internal procedures under the Administrative Procedure Act (APA). See 5 
U.S.C. 553(b)(3)(A), which provides that an agency may issue 
interpretive rules, general statements of policy, or rules of agency 
organization, procedure, or practice without providing notice and an 
opportunity for public comment. The EPA is providing an immediate 
effective date for this rulemaking because it is procedural rather than 
substantive. The APA's requirement, 5 U.S.C. 553(d), that substantive 
rules not be effective until at least 30 days after publication in the 
Federal Register is inapplicable because this rulemaking is procedural.

II. Background

    On October 9, 2019, President Trump issued E.O. 13891, ``Promoting 
the Rule of Law Through Improved Agency Guidance Documents.'' The now 
revoked E.O. 13891 provided a specific definition of guidance documents 
and required Federal agencies to finalize regulations or amend existing 
regulations to establish processes and procedures for issuing guidance 
documents, among other actions. On October 19, 2020, the EPA published 
a final rule consistent with E.O. 13891. The final rule, codified at 40 
CFR part 2, subpart D, established the EPA's policy and internal 
procedures for issuing, modifying, withdrawing, and using guidance 
documents; making guidance documents available to the public; and 
receiving and responding to petitions about guidance documents (85 FR 
66230).
    On January 20, 2021, President Biden issued E.O. 13992, 
``Revocation of Certain Executive Orders Concerning Federal 
Regulation,'' which revoked E.O. 13891. E.O. 13992 states that it is 
the policy of the Administration ``to use available tools to confront 
the urgent challenges facing the Nation, including the coronavirus 
disease 2019 (COVID-19) pandemic, economic recovery, racial justice, 
and climate change. To tackle these challenges effectively, executive 
departments and agencies (agencies) must be equipped with the 
flexibility to use robust regulatory action to address national 
priorities. This order revokes harmful policies and directives that 
threaten to frustrate the Federal Government's ability to confront 
these problems, and empowers agencies to use appropriate regulatory 
tools to achieve these goals.'' Section 3 of E.O. 13992 directs 
agencies to take steps to rescind any orders, rules, regulations, 
guidelines or policies, or portions thereof, implementing or enforcing 
the revoked Executive orders.

III. Discussion

    After consideration and review, the EPA has concluded that the 
internal rule on guidance deprives the EPA of necessary flexibility in 
determining when and how best to issue public guidance based on 
particular facts and circumstances, and unduly restricts the EPA's 
ability to provide timely guidance on which the public can confidently 
rely. Therefore, in accordance with E.O. 13992, the EPA is issuing this 
final rule to rescind the subpart D regulations.
    The EPA's stated purpose in issuing subpart D was to promote 
transparency and public involvement in the development and amendment of 
EPA guidance documents. The EPA notes, however, that the Agency has 
historically employed procedures for public transparency and 
involvement in the development of all Agency actions, including 
guidance, and will continue these practices. The EPA will continue to 
make Agency guidance available to the public on the Agency's website at 
https://www.epa.gov. In addition, the EPA will comply with all 
statutory obligations pertaining to posting documents for public 
accessibility. The EPA will also continue its practice, as appropriate, 
of soliciting stakeholder input on guidance of significant stakeholder 
and public interest. Consistent with the APA, stakeholders may still 
petition the EPA at any time regarding our regulatory programs, 
including requests to issue, amend, or repeal EPA guidance, by 
contacting the

[[Page 26843]]

EPA program office or regional office that is responsible for 
administering the area of stakeholder interest. Finally, the EPA notes 
that guidance is non-binding and does not have the force and effect of 
law. Accordingly, the EPA will continue to include in all guidance a 
disclaimer that the guidance is non-binding. Considering these 
practices regarding guidance, the EPA believes that rescinding the 
subpart D regulations will restore the flexibilities needed effectively 
to address the challenges listed in E.O. 13992 and to otherwise meet 
the Agency's statutory duties.
    Therefore, in accordance with E.O. 13992 and for the reasons stated 
above, the EPA is rescinding its internal agency procedures for issuing 
guidance documents codified at 40 CFR part 2, subpart D.

IV. Statutory and Executive Orders Reviews

    Additional information about these statues and Executive orders can 
be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it is a rule of agency procedure and practice and 
is limited to agency management.

B. Paperwork Reduction Act (PRA)

    This action does not contain any information collection activities 
and therefore does not impose an information collection burden under 
the PRA.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule pertains to agency management or personnel, which the APA 
expressly exempts from notice and comment rulemaking requirements under 
5 U.S.C. 553(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children. Per the definition of ``covered regulatory action'' in 
section 2-202 of Executive Order 13891 and because this action does not 
concern an environmental health risk or safety risk, it is not subject 
to Executive Order 13045.

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

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard. This regulatory action is a 
procedural rule and does not have any impact on human health or the 
environment.

K. Congressional Review Act

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

List of Subjects in 40 CFR Part 2

    Environmental protection, Administrative practice and procedure, 
Organization and functions (Government agencies).

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, the Environmental 
Protection Agency amends 40 CFR part 2 as follows:

PART 2--PUBLIC INFORMATION

0
1. The authority citation for part 2 is revised to read as follows:

    Authority:  5 U.S.C. 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31 
U.S.C. 3717.

Subpart D [Removed]

0
2. Remove subpart D, consisting of Sec. Sec.  2.501 through 2.507.

[FR Doc. 2021-10269 Filed 5-17-21; 8:45 am]
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