[Federal Register Volume 86, Number 248 (Thursday, December 30, 2021)]
[Rules and Regulations]
[Pages 74371-74373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28282]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 31

[EPA-HQ-2020-03508; FRL-8540-01-OECA]


On-Site Civil Inspection Procedures; Rescission

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; rescission of regulations.

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SUMMARY: In accordance with the Presidential directive of January 20, 
2021, ``Revocation of Certain Executive Orders Concerning Federal 
Regulation,'' and in order to ensure appropriate flexibilities to site-
specific inspection work, the Environmental Protection Agency (EPA) is 
rescinding its March 2, 2020 final rule describing certain Agency 
procedures for conducting on-site civil inspections. This rule applies 
to on-site civil inspections conducted by federally credentialed EPA 
civil inspectors, federally credentialed contractors and Senior 
Environmental Employment employees conducting inspections on behalf of 
EPA.

DATES: This rule is effective on December 30, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-2020-03508. All documents in the docket are listed 
on the 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: Chad Carbone, Monitoring, Assistance, 
and Media Programs Division, Office of Enforcement and Compliance 
Assurance (Mail Code 2221A), Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-2523; email address: [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), and in order to ensure 
appropriate flexibilities to site-specific inspection work, the EPA is 
rescinding the final rule (85 FR 12224, March 2, 2020) that described 
certain Agency procedures for conducting on-site civil inspections. The 
prior final rule was promulgated to implement the now revoked E.O. 
13892, ``Promoting the Rule of Law Through Transparency and Fairness in 
Civil Administrative Enforcement and Adjudication'' (84 FR 55239, 
October 9, 2019).

[[Page 74372]]

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

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

II. Background

    On October 9, 2019, President Trump issued E.O. 13892, ``Promoting 
the Rule of Law Through Transparency and Fairness in Civil 
Administrative Enforcement and Adjudication.'' Section 7 of the now 
revoked E.O., entitled Ensuring Reasonable Administrative Inspections, 
provided that: ``Within 120 days of the date of this order, each agency 
that conducts civil administrative inspections shall publish a rule of 
agency procedure governing such inspections, if such a rule does not 
already exist.'' Section 1, Policy, of E.O. 13892 implied that there 
was a need for a rule of Agency procedure, due to a perceived lack of 
transparency on how EPA conducts on-site civil administrative 
inspections. On March 2, 2020, the EPA published a final rule 
consistent with E.O. 13892. The final rule, codified at 40 CFR part 31, 
described certain EPA procedures for governing agency personnel on how 
to conduct EPA on-site civil inspections (85 FR 12224).
    On January 20, 2021, President Biden issued E.O. 13992, 
``Revocation of Certain Executive Orders Concerning Federal 
Regulation,'' which revoked E.O. 13892. E.O. 13992 states that it is 
the policy of the Administration ``to use available tools to confront 
the urgent challenges facing the Nation, including the coronavirus 
disease 2019 (COVID-19) pandemic, economic recovery, racial justice, 
and climate change. To tackle these challenges effectively, executive 
departments and agencies (agencies) must be equipped with the 
flexibility to use robust regulatory action to address national 
priorities. This order revokes harmful policies and directives that 
threaten to frustrate the Federal Government's ability to confront 
these problems, and empowers agencies to use appropriate regulatory 
tools to achieve these goals.'' Section 3 of E.O. 13992 directs 
agencies to take steps to rescind any orders, rules, regulations, 
guidelines or policies, or portions thereof, implementing or enforcing 
the revoked Executive orders.

III. Discussion

    The inspection rule being rescinded today converted a subset of 
what had been long-standing civil inspection practices, guided by 
applicable agency policies, into rules of Agency procedure by which 
``all'' civil inspections ``shall be conducted.'' 40 CFR Part 31.1(a). 
Although not altering the rights of parties outside of EPA, the change 
from an Agency practice to a rule of procedure reduces the flexibility 
that is inherent in implementing agency policies in a case-by-case 
manner. The procedures for inspections must be adaptable to the site-
specific conditions that the Agency faces in conducting its 
investigations. By rescinding the 2020 inspection rule, EPA is 
restoring the flexibility needed when carrying out civil inspections 
under a myriad of circumstances.
    Further, the EPA has concluded that the 2020 rule on civil 
inspections is unnecessary, since procedures described in this rule 
already exist in inspection guidances and manuals, which are accessible 
to the public through EPA's website.
    Therefore, in accordance with E.O. 13992, the EPA is issuing this 
final rule to rescind the part 31 regulations.
    Section 1, Policy, of E.O. 13892 implied that there was a need for 
a rule of Agency procedure, due to a perceived lack of transparency on 
how EPA conducts on-site civil administrative inspections. The EPA 
notes, however, that the Agency has historically employed methods for 
public transparency of Agency procedures for conducting on-site civil 
inspections and will continue these transparency practices under 
current policies. (These Agency guidances and manuals on the procedures 
for on-site civil inspections are available to the public on the 
Agency's website at https://www.epa.gov.) In addition, the EPA has met 
and will meet all statutory obligations pertaining to posting documents 
for public accessibility. To the extent that concerns arise regarding 
Agency guidance, a person may--consistent with the APA--petition the 
EPA, including a request to issue, amend, or repeal EPA guidance, by 
contacting the EPA program office or regional office that is 
responsible for administering the area of stakeholder interest.
    EPA believes that rescinding the part 31 regulations will restore 
the flexibilities needed to meet the Agency's statutory duties. 
Therefore, in accordance with E.O. 13992 and for the reasons stated 
above, the EPA is rescinding its internal agency procedures for 
conducting on-site civil inspections codified at 40 CFR part 31.

IV. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive orders 
can be found at 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

[[Page 74373]]

responsibilities among the various levels of government.

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

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

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

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

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This action is not subject to Executive 
Order 13211 because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

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

K. Congressional Review Act

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

List of Subjects in 40 CFR Part 31

    Environmental protection, On-site civil inspection procedures.

Michael S. Regan,
Administrator.

PART 31 [REMOVED AND RESERVED]

0
For the reasons set forth in the preamble, and under the authority of 
E.O. 13992, the Environmental Protection Agency removes and reserves 40 
CFR part 31.
 [FR Doc. 2021-28282 Filed 12-29-21; 8:45 am]
 BILLING CODE 6560-50-P


