
                     U.S. Environmental Protection Agency
            Documentation of OMB Review Under Executive Order 12866
Title of Action:  National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Final Rule
Docket#:
EPA-HQ-OECA-2009-0274


RIN:
2020-AA47
EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). OMB received this action on 12 April 2014 and completed their review on 18 November 2014. Whenever EPA makes publicly available a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also:
   (1) Make available to the public a copy of the information that was provided to OMB's Office of Information and Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable, an assessment of the potential costs and benefits, as well as additional information for those actions that are determined to be economically significant under the E.O. (Information requirements are described in sections 6(a)(3)(B) and (C)).
   (2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was subsequently issued, using a method that is complete, clear, and simple.
   (3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.
For this regulatory action, were substantive changes made to information reviewed under E.O.
12866? [Please check the appropriate answer.]
   [   ] No. 
   [X] Yes.
Accordingly, the Agency has included this form and the following information in the public docket for this regulatory action: [Please check the appropriate information.]

   [   ] A copy of the information that was provided to OIRA for review under the E.O.
   
   [X] Documentation of any substantive changes made to the draft regulatory text that was submitted to OIRA when compared with what was subsequently made publicly available. The documentation is provided on the pages following this form. Changes made at the suggestion or recommendation of OIRA, if any, these are clearly identified through attribution to OIRA. EPA has used one or more of the following methods to note changes: [Select the appropriate option(s).]
        
        [   ] Redline-Strikeout  -  A copy of the draft regulatory action submitted, using redline/strikeout to show the substantive changes that were made.
        
        [   ] Hand Markup  -  A copy of the draft regulatory action submitted, using handwritten notes to show the substantive changes that were made.
        
        [X] Note to the file - A document that identifies the substantive changes that were made, with section references to the draft regulatory action that was submitted.
If you have any questions about this regulatory action or this documentation, please contact:
Name:
Carey Johnston
Email:
johnston.carey@epa.gov
Phone:
(202) 566-1014
                                                            Revised: 05/05/2010

Memorandum

From: 	Carey A. Johnston, P.E.
      USEPA/OECA/OC
      ph: (202) 566 1014
      johnston.carey@epa.gov

To:	EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)

Date:	23 September 2015

Re: 	Memorandum Documenting Substantive Changes to the Final NPDES Electronic Reporting Rule Made During E.O. 12866 Review [DCN 0206]
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      Consistent with Section 6(a)(3)(E)(ii) of Executive Order 12866, this memorandum identifies the one substantive change made by EPA to the final NPDES Electronic Reporting Rule after EPA submitted this final rule to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review on 1 July 2015 in response to a substantive comment received during interagency review. This substantive comment was made by the U.S. Department of Agriculture (USDA) and OIRA recommended that EPA incorporate USDA's comment into the preamble to the final rule. OMB concluded their review on 22 September 2015. 
      

                                       
     Figure 1: Screenshot of OMB Website (NPDES Electronic Reporting Rule)

In addition to the one substantive comment from USDA (see following section), the following Federal agencies provided comments on the final rule. These comments were general in nature (i.e., no substanative changes made to the final rule in response to these general comments) and these comments strongly supported promulgation of the final rule. These Federal agencies included:
      
         *          U.S. Department of Interior Geologic Survey (USGS);
         *          U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA); and
         *          U.S. Department of Health & Human Services, Food and Drug Administration (FDA).

U.S. Department of Agriculture (USDA) Comment

      EPA received many comments from the animal agricultural sector in response to the proposed rule. Although this rule only changes the mode of transmission of NPDES information from paper-based reports to electronic reporting and does not address EPA's practices for managing and sharing that information, EPA received comments regarding privacy, security, management of confidential business information, and EPA's current practice of posting inspection information along with other NPDES information on its public website  [Enforcement and Compliance History Online (ECHO)  -  http://echo.epa.gov]. This includes state and EPA inspections of both permitted and unpermitted CAFOs and AFOs along with other types of facilities. In response to comments received on the proposed rule, EPA used the supplemental notice to clarify the effects of this rule on CAFOs (see 1 December 2014; 79 FR 71073).
      
      EPA also solicited comments in the supplemental notice to the proposed rule on whether it should change its current practice and begin masking facility information for unpermitted CAFOs and AFOs that EPA or state inspectors found were not discharging and do not require an NPDES permit. EPA published an example in the supplemental notice to the proposed rule showing how EPA could mask these data and solicited comments on this approach.
      
      Comments from the animal agricultural sector were in favor of this proposed approach to mask information while other commenters (for example, environmental advocacy groups) were not. Some authorized NPDES programs also support this as a reasonable approach in balancing the competing interests of privacy and public access to these data. Separate from this rulemaking, in light of concerns raised regarding the privacy interests of an unpermitted CAFO or AFO that an authorized NPDES program or EPA has assessed and found to have not violated the Clean Water Act, EPA noted in the final rule that it will change its current practice and mask on the ECHO public website the related facility-specific facility information.

      USDA made a comment on the timing of when EPA would implement the masking approach. USDA made the following comment to EPA during Executive Order 12866 review of the final rule:

      USDA suggests that this change be made before any new data is placed onto the ECHO website. For data that is already on the ECHO website, but should be masked under this change, USDA suggests that one year is too long. Based on the AFBF comments, USDA suggests that EPA pull those data layers and use "under construction" signals on the public site for that data until the masking process is ready. Since those facilities are not contributing to any violation of the NPDES system, we see no benefit to including those facilities until the privacy aspect can be assured.
      
      Furthermore, since that data has been available throughout this process to anyone that wants to download the data, there is no longer any compelling need to include the data layer until the EPA can implement this change.  In particular, USDA does not think it is appropriate to place any new data from facilities that do not require a permit and has no violations to the database without the masking in process.

The following are the substantive changes to the final rule preamble that EPA made in response to this comment.

      EPA will implement this data masking in an iterative, two-step process. make this change one year after the effective date of the final rule.  EPA is using a two-step process because unpermitted facilities in EPA's national NPDES data system (Integrated Compliance Information System (ICIS)-NPDES) cannot currently be identified by CAFO permit component data. As a first step, EPA will use other currently available data in ICIS-NPDES to identify unpermitted CAFOs or AFOs that an authorized NPDES program or EPA have assessed and not found any Clean Water Act violations (see DCN 0207). EPA plans to implement this interim approach by the effective date of this final rule.
      
      EPA plans to supersede the first approach with a second data masking approach outlined in the Supplemental Notice to the proposed rule (1 December 2014; 79 FR 71080). The second data masking approach will only use CAFO permit component data to identify unpermitted CAFOs and AFOs (see DCN XXX). This second approach will take more time to implement as EPA anticipates it will need a year after the final rule to adopt the above changes to its national NPDES data system (ICIS-NPDES) and coordinate with authorized NPDES programs. These upgrades to ICIS-NPDES and coordination with authorized NPDES programs are necessary to identify the exact set of unpermitted CAFOs and AFOs that an authorized NPDES program or EPA has assessed and found to have not violated the Clean Water Act. CAFOs and AFOs currently in EPA's data systems that qualify for these facility-specific information redactions and the necessary data management rules for future state and EPA inspections of unpermitted CAFOs and AFOs. EPA anticipates it will need a year after the final rule to adopt this second data masking approach.
