United States Region I
Environmental Protection J.F. Kennedy Federal Building
Agency Boston, MA 02203
SEPA
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ENHANCING REGIONAL INVOLVEMENT:
Study Of Rulemaking At EPA
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Planning & Evaluation Branch
Administrative Services Division
August, 19 83
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ENHANCING REGIONAL INVOLVEMENT:
A Study Of Rulemaking At EPA
Final Report
by
David B. Struhs
Greg D. Peterson
Norman L. Willard, Project Manager
Planning and Evaluation Branch
Administrative services Division
Region I
U.S. Environmental Protection Agency
AUGUST, 1983
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ENHANCING REGIONAL INVOLVEMENT:
A Study Of Rulemaking At EPA
Executive Summary
Defining Rulemaking
Rulemaking is a generic term used to refer to all of the activities as-
sociated with the process of developing and reviewing EPA regulations.
Reasons for the Study
This Study was undertaken at the direction of Louis Gitto, Director of
Region I's Administrative Services Division and completed by the Plan-
ning and Evaluation Branch. There were several reasons for the Study:
° Senior staff members at Region I believe that many of the difficulties
which arise in the adninistration and enforcement of national environ-
mental policies and programs stem frcm the fact that Regions and States
do not have sufficient influence in EPA's rulemaking process.
0 The statistics on Region I participation in rulemaking activities
seem disappointing. (See Summary of Findings and Appendix A).
° Attention to rulemaking has been included in the performance standards
of scne Region I senior managers.
° Administrator Ruckelshaus has emphasized the importance of running an
"open" Agency, and has said that Regions and States should play a
"central role" in the rulemaking process.
Objectives of the Study
The objectives of this Study were to:
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0 Describe the existing EPA rulemaking process, highlighting points at
which the Regions and States can become involved.
0 Develop methods for increasing Regional and state influence in the
existing rulemaking process.
0 Package and present these various methods, and the advantages and
disadvantages of administering them, in a manner conducive to
deci sior>-mak ing.
Methodology of the Study
The Project Team:
° Completed an extensive literature search and interviewed seme 35
individuals frcm HQ, all ten Regions, and the States, and analyzed the
information so obtained.
° Developed flowcharts of the formal EPA rulemaking process, identifying
where Regions and States can influence proposed regulations, and the
"pros" and "cons" of entering the process at these points.
° Developed, categorized and evaluated 43 different "action initiatives"
which Regions can implement/pursue to increase/improve the effective-
ness of their participation in rulemaking.
° Prepared six increasingly resource-intensive collections of comp-
lementary "action initiatives" known as "Option Packages" to aid
decision-makers in planning the Region's approach to the rulemaking
process.
The Lexicon of Rulemaking
A number of specialized terms and acronyms are used in discussions of
rulemaking. A Glossary has been included at the end of this Report to
define unfamiliar terms and offer succinct explanations of basic rule-
making concepts.
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"Option Packages" for the Decison-Maker
This Report offers six approaches or Option Packages for maintaining
or modifying Regional involvement and influence in EPA rulemaking.
These Option Packages are, of course, only representative of the wide
range of approaches available. The decision-maker may select an Option
Package or create a "tailor-made" Option Package by assembling ideas
frcm more than one of the six Option Packages. If the decision-maker
wants to create an Option Package "frcm scratch," he/she should refer to
the comprehensive list of 43 "action initiatives" which the Project Team
used to develop the six Option Packages. These action initiatives are
categorized and evaluated in Indices at the end of the Report's Option
Packages section.
Note that the six Option Packages prepared by the Project Team are pre-
sented in order of increasing resource intensity and difficulty of im-
plementation. Ttie sixth and final Package is a listing of various meth-
ods, primarily outreach programs, which can be used to enhance sane of
the other Packages.
0 Option Package One, ending all Region I involvement in formal EPA rule-
making processes, may result in a short-run resource savings. However,
the long-run problems of implementing and enforcing programs which were
developed without consideration of the Regional perspective might very
well result in additional costs which far outweigh the initial savings.
Consequently, forfeiting all formal involvement in rulemaking should be
considered an expensive way of accomplishing nothing.
° Option Package Two, making no change in the way Region I currently par-
ticipates in EPA rulemaking, would have no affect on resources spent,
or on Regional effectiveness in rulemaking.
0 Option Package Three includes beginning an education program in the
Region; requiring the Regional Regulatory Contact (RRC) to send infor-
mation to the Divisions and the RA's Office (a list of HQ Project Of-
ficer names and a status report on Regional involvement in rulemaking,
respectively); and modifying certain internal systems. These modifi-
cations include changing a filing system, preparing presigned concur-
rence memos, and encouraging telephone communications between Regional
staff and HQ. There are marginal "start-up" costs. Once implemented,
this Package would require no additional resources and would increase
the effectiveness of Region I in rulemaking.
° Option Package Four includes everything in Package Three with some
additions. The main feature of this option is that the Region would
adopt a Priority Regulation System (PRS). (These systems are describ-
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ed in the next section of the Executive Summary.) Like Package Three,
Option Package Four has marginal "start-up" costs, but would require
no significant additional resources once implemented. This Option
Package would have an even greater effect on Region I's rulemaking
effectiveness than Package Three.
° Option Package Five includes everything in Packages Three and Four plus
several modifications for increasing the effectiveness of the PRS. The
education program mentioned in Package Three would be expanded to in-
clude briefing State officials. Also, the responsibilities of the Plar>-
ning and Evaluation Branch would be expanded so that work would be done
with HQ to improve the transmittal of rulemaking communications, and
work would be done with the Divisions to improve the effectiveness of
written comments which are sent to HQ. In addition, this package would
incorporate rulemaking into Region I's performance standards; would co-
ordinate Region I's rulemaking activity with other Regions and States;
and would have the Region share status reports on proposed regulations
with State agencies on a monthly basis. The various elements of this
Package require substantially different amounts of resources, and many
of these parts can be implemented separately. All of the Package's ele-
ments would increase the Region's effectiveness in rulemaking.
0 Option Package Six outlines various outreach programs and modifications
of external systems which may be used to enhance Option Packages Three,
Four and Five. The costs of these various methods range frcm zero to
substantial. Consequently, the decisionmaker should carefully review
this Package in conjunction with the other Packages.
For a complete discussion of the choices which are available to decision-
makers, please see "Option Packages and Action Initiatives."
Priority Regulation Systems (PRS)
Based on a thorough analysis of rulemaking and interviews both within and
outside of Region I, the Project Team came to the conclusion that Region I's
participation in rulemaking is less effective and efficient than it could
be. Current Regional procedures for rulemaking: aggravate the time con-
straints already placed on canmentors; overwhelm Region I senior managers
with paper; and do not systematically focus resources and attention and
useful information on Region I rulemaking activities. These factors amount
to an ad hoc approach to rulemaking which fails to adequately highlight
and influence proposed regulations of special interest to Region I.
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The adoption of a Priority Regulation System (PRS), which is a center-
piece of this Report, would result in a more systematic approach to rule-
making thus greatly improving Region I's effectiveness in rulemaking at
virtually no cost.
Region I does not have enough time or resources to becane involved in the
development of every proposed regulation in the rulemaking system. Fur-
thermore, because the Region would not be directly affected by many of
these regulations, it does not have the desire to becane involved in their
development. However, there are proposed regulations which would have
great impact on New England, or which involve issues in which Region I has
a certain level of expertise. A PRS recognizes these facts and focuses
the Region's rulemaking efforts on these "top priority" regulations.
By trying its hardest to influence those regulations which it considers
"top priority," the Region:
0 Emphasizes the fact that it takes rulemaking seriously, and will ap-
proach the task in a thoughtful, organized manner.
° Clearly highlights those issues which are most important to the Region,
and eliminates any possible confusion over what the Region's priorities
are in rulemaking.
° Promotes the development of Regional strategies for influencing speci-
fic regulations.
0 Simplifies the task of budgeting resources for rulemaking activity.
0 Reduces the Division Director's regulatory review burden, allowing more
time for active participation on pre-identified, top-priority regula-
tions.
° Streamlines the commenting process which allows more time for review and
prepartion of more thoughtful and effective comments.
° Increases the Division's ability to shift old priorities and recognize
new priorities.
° Improves the ability of the Divisions to monitor all developing regula-
tions.
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There are two major steps in implementing a PRS. First, the Region must
determine which regulations it most wants to influence. To do this, the
Division Directors would place all of the regulations in the EPA Regula-
tory Agenda on one of two lists', a^op priority" list or a "nominal in-
volvement" list. Second, individual staff members would be assigned to
monitor the development of specific regulations. Every regulation—even
those not on the "top priority" list—would have such a pre-designated
"contact person."
For a complete explanation of how a PRS works, please see Appendix B. To
see how two other Regions have used such systems, please see Appendix F.
The Rulemaking Process
The rulemaking process for the development of a single regulation can
take from one-and-one-half years to four-and-one-half years, depending
on a host of factors. Approximately 250 regulations are in sane stage
of development at any one time.
There are four phases to the development of a rule. These phases, and
the key document for each of than, are:
0 Internal Notification phase (Start Action Request—SAR)
° Development Plan Phase (Advanced Notice of Proposed Rulemaking—ANPRM)
0 Proposal Phase (Notice of Proposed Rulemaking—NPRM)
0 Final Rule Phase (Final Notice of Rulemaking—FNR)
In the Internal Notification Phase, the HQ Program Office that wants to
develop a regulation files an SAR. Hie SAR, which is approved by HQ's
Office of Standards and Regulations (OSR), is used to notify all other
EPA offices, including Regions, that the rulemaking process for the devel-
opment of a new regulation has started. A Work Group is then formed to
assist the Lead Program Office in studying and drafting the proposal and
guiding it through the rulemaking process.
In the Development Plan Phase, the Lead Program Office and its Wbrk Group
prepare their plan for developing the regulation. This plan must be ap-
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proved by the Steering Committee, and then by the Red Border Reviewers.
Finally, the Administrator signs off, and the Advanced Notice of Proposed
Rulemaking (ANPRM) is promulgated in the Federal Register.
In the two final phases, the Proposal Phase and the Final Rule Phase,
the proposed regulation, or "regulatory development package," circulates
through the system in much the same way the development plan did. The
major difference is that in addition to Steering Committee and Red Border
approvals and the Administrator's sign-off, these "regulatory development
packages" must also be approved by the Office of Management and Budget
(OMB) before the Notice of Proposed Rulemaking (NPRM) and Final Notice of
Rulemaking (FNR) appear in the Federal Register. The FNR sets out the
full text of the final version of the regulation and specifies when the
regulation becomes effective.
Note that it remains unresolved whether the Administrator's sign-off will
ccme before or after OMB1 s approval. Also, the Office of Legal and Enfor-
cement Counsel (OLEC), which is represented on all Steering Canmittees and
Red Border Reviews, has been split into two new offices, General Counsel
and "Enforcement Counsel."
Regions and States have the opportunity to comment on proposed regulations
prior to each of the three Steering Committee meetings in the rulemaking
process. Regions and States can also participate in the decision-making
aspects of rulemaking. Representatives frcm both Regions and States can
participate on Work Groups, and Regions can be represented on Steering
Caranittees and Red Border Reviews, although the latter is extremely rare.
A general "rule-of-thumb" is that the earlier in the process that Regions
become involved, the more influence they have, but this involvement can
be resource intensive; later involvement is cheaper, but less effective.
Note, of course, that Regions and States can also attempt to influence
rulemaking through informal contacts with HQ Program Offices.
The Flowchart on the following page illustrates the highlights of the
rulemaking process and provides definitions for some of the basic terms.
For a concise depiction of how each rulemaking phase works, please see
"EPA Rulemaking in 4 Phases." For a detailed, comprehensive description
of the entire rulemaking process, please see Appendix C.
The Project Team has also collected important HQ memoranda on the rule-
making process. This information can be found in Appendix H. If even
more detailed information about rulemaking is required, contact HQ's
Office of Standards and Regulations (OSR) to obtain a copy of "Managing
the Process" which was prepared as part of EPA's Regulation Management
Series. The reader should be advised, however, that many parts of that
document have been superseded and are now inaccurate.
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HIGHLIGHTS OF EPA RULEMAKING
(Source: P&E Branch, Region I)
PLAN;
(DP)
STEERING
COMMITTEE:
(SC)
STEERING
COMMITTEE
"CONSENT
CALENDAR":
Lead Program Office within 60 days of
the approval of the SAR. The plan brief- "NON-MAJOR"
ly sets out the objectives, analytic RULE:
framework, resource needs, budget, and
schedule for the rule to be developed.
The Steering Ccrmittee meeting is TOE CLOSURE
point at which comments by all EPA Off- MEMO:
ices and Regions are considered. The SC
is composed of one representative each
from: H3 Program, Administrative, and R&D
Offices; OPRM; OLEC; and any Regions
which wish to participate.
An alternative method of obtaining SC "RED BORDER'
approval. The "Consent Calendar" may be REVIEW:
used only if: the rule is non-major;
there are no controversial issues; and
the entire Work Group agrees to this re-
view option. "Consent Calendar" pack-
ages are distributed and approval is ob-
tained by the mere passage of time (typ-
ically two weeks) without objection.
The standard definition of this term de-
rives fran Executive order 112291. It
refers to a rule which will have less
than §100 million in econanic impact.
A memorandum prepared by OPRM's Office of
Standards and Regulations which summar-
izes the results of the Steering Commit-
tee meeting, any comments of non-attend-
ing Regions, the SC's disposition of
these and any special requests for parti-
cipation on "Red Border" Review.
A policy review of a proposed regulation
by senior-level management. Only the AA's
of OPRM and OLEC MUST give their approval
to a proposed regulation during "Red Bor-
der." Typically, they are the only senior
managers who participate. All other Of-
fices and the Regions must have requested
participation during the course of Steering
Committee deliberations.
ADVANCE The ANPRM is the first public notice in the
NOTICE OF "Federal Register" which EPA gives after in-
PROPOSES itiating development of a regulation. An
RULEMAKING: ANPRM is usually, but not necessarily, pre-
(ANPRM) pared and published. It is short and con-
ceptual and usually appears within 10 months
of the start of rulemaking, i.e. the SAR.
NOTICE OF The NPRM is mandatory and either the first
PROPOSES or second public notice EPA gives of a de-
RJLEMAKIN3: veloping regulation (depending on whether or
(NPRM) not an ANPRM was published). The NPRM is
usually quite detailed, sets out the full
text of the proposed rule and its background
and solicits public canment. It must be
published in the "Federal Register" and usu-
ally appears there within 28 months of the
start of rulemaking, i.e. the SAR.
FINAL The FNR must be published in the "Federal
NOTICE OF Register" when EPA completes the development
RULEMAKING: of a regulation. It sets out the full text
(FNR) of the final version of the regulation. It
normally appears within 52 months of the
start of rulemaking, i.e. the SAR. The et-
fective date is specified in the FNR
** Denotes key points for formal Regional input. Note, however,
that informal input is possible at any time.
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Regional Interviews
One element of this Study was a series of in-depth interviews with staff
members who serve as Regional Regulatory Contacts in each of the ten EPA
Regions. All ten of the Regions had one opinion in cannon: the most ser-
ious problem the Regions currently face in the rulemaking process is in-
sufficient review time during the commenting periods. The Regions, tech-
nically, are given two weeks to prepare their comments, however, the aver-
age number of days the Regions actually have is significantly less. One-
half of the Regions say they have an average of five working days to re-
view and comment on proposed regulations. Furthermore, five of the Re-
gions view the commenting process as an ineffective means for influencing
regulations. All of the Regions think that because of their "field exper-
ience" in implementing and enforcing programs their comments deserve par-
ticular attention when new regulations are being developed.
For highlights of Regional attitudes, please see the "Sunmary of Findings."
For a full comparison of the Regions, see the matrices in "Sunmary of
Information and Opinions, Regions I-X."
State Interviews
The Project Team also conducted interviews to obtain the perspective of
State environmental officials in New England towards rulemaking. The main
complaint that the States had was not that they do not receive adequate
information, but that when they try to become involved in rulemaking they
are not treated as equal partners, instead, they are simply treated as
another interest group. Furthermore, when they do participate in rulemak-
ing, they are often not kept up-to-date on the status of the developing
regulation. States, like the Regions, feel they offer an important and
experienced perspective on actual program management and enforcement.
For highlights of State attitudes, please see the "Sunmary of Findings."
For a full discussion of the State interviews, please see "Summary of
State Viewpoints."
Making garments More Effective
Because the commenting process is, and will probably continue to be, the
most cannon method for Regions to participate in rulemaking, and because
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there is a general feeling among Regions that their comments are often
ineffective, the Project Team prepared a list of methods for making
comments more effective. In addition, it collected samples of partic-
ularly well-written comments which can be used as examples. It is also
important that staff members realize the importance of informal communica-
tion with HQ Program Offices via telephone.
The Federal Advisory Committee Act and Public Participation
Hie Federal Advisory Caimittee Act (FACA) is a 1972 Act of Congress de-
signed to regulate any group of non-Federal Government employees which
serves in an advisory role to any agency or branch of the Federal Govern-
ment. Briefly stated, FACA requires such advisory committees be formally
chartered, keep records, and operate in a manner open to the public. Ad-
vanced notice of advisory committee meetings must appear in the Federal
Register. FACA raises two important issues in a discussion of rulemaking.
First, several people in Region I told the Project Team that they thought
it would be valuable if the Divisions, or the Region as a whole, could
regularly meet with members of the academic community, public interest
groups, and representatives of business and industry, in the form of
organized advisory committees. However, the Region must be mindful of
FACA in this context.
The second involves relations between Federal Agencies and the States.
The Project Team heard complaints frcm State officials that FACA has been
raised by sane EPA Officials as a bar to a "equal partnership" between EPA
and the several States in rulemaking, despite the fact that Federal envi-
ronmental statutes, as well as others, make the States co-regulators with
Federal Agencies.
Regarding the first issue, the case law clearly holds that Federal Agen-
cies may not purposely structure meetings so as to avoid the requirements
of FACA. Nevertheless, it is possible to structure meetings which meet
the requirements and spirit of FACA and still serve as a vehicle for ob-
taining public input on EPA operations and regulations, without imposing
costly burdens, legal or otherwise, on EPA. Region ill, in fact, has de-
veloped an experimental "Public Outreach" program which allows public
discussions and input without violating the Act. (For a description of
this program, see Appendix I.)
In light of the difficulties FACA has caused for State involvement in
rulemaking, the National Governors Association has tried, thus far unsuc-
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cessfully, to amend FACA so States could deal directly with EPA prior to
the public camtent period for proposed regulations. Until such a change
is made, State participation in rulemaking may remain somewhat limited.
Please see Appendix e for a more complete discussion of how FACA affects
EPA rulemaking, a list of principal judicial cases, and a copy of the Act.
The 1982 Report on EPA Rulemaking
In the course of its interviews, the Project Team was asked by several
people about a report done by outside consultants in 1982 on the subject
of the EPA rulemaking prooess for HQ's OSR. Such a report was written
and OSR has has prepared a sumnary of it. It is included in Appendix G.
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TABLE OF CONTENTS
Page
Executive Sunmary iii
Highlights of EPA Rulemaking process x
Table of Contents xv
Preface 1
Sunmary of Findings 5
Options Packages and Action Initiatives 9
Option Packages 11
Graphic of Option packages 3, 4 and 5 18
Indices of Action Initiatives 19
EPA Rulemaking In 4 Phases 27
Sunmary of State Viewpoints 32
Summary of Information and Opinions, Regions I -X 37
Appendices
Appendix A
Comparative Statistics on Regional Responses to
the Regional Priority List and the Frequency of
Canments by Region 1 41
Appendix B
Region I Priority Regulation System (PRS)
Flowcharts 47
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Page
Appendix C
EPA Rulemaking Process Flowchart 56
Appendix D
Factors Which Can Help to Make Regional Comments
More Effective 66
Sample Comments 68
Appendix E
The Federal Advisory Committee Act (FACA) 84
Appendix F
Priority Regulation Systems in Region IX
(San Francisco) and Region X (Seattle) 107
Appendix G
Summary Portion of 1982 Report on EPA
Rulemaking Process Prepared for the Office
of Standards and Regulations (OSR) 126
Appendix H
EPA HQ Memoranda Relating to the EPA
Rulemaking Process 133
Appendix I
An Approach to Public Participation: Summary
of Interview of Robert Gunther, Office of
Intergovernmental Liaison, Region III
(Philadelphia) 171
Appendix J
List of Persons Interviewed for Report on
EPA Rulemaking 175
Glossary 177
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PREFACE
Background
A canbination of factors led to the preparation of this
report. First, it was perceived by senior staff at EPA Region I and
in several New England States that the Region and the States have not
exercised sufficient influence over the content of regulations. This
in turn is seen to cause difficulties in seme cases in the delegation
/
and implementation of national environmental policies and programs.
Placing regulatory development and review low on the list of Regional
priorities results in what one Region I media official termed "eternal
crisis management." Second, the statistics on Region I participation
in developing the Regional Priority List and in commenting seemed
disappointing. Third, attention to rulemaking was recently added to
the performance standards of several Region I senior managers. Fourth,
since his appointment, Administrator Ruckelshaus has emphasized the
importance of opening EPA processes in general to all interested publics
and affected bodies. Finally, Louis Gitto, Director of the Administra-
tive Services Division at EPA Region I, requested that this report be
prepared because of his longstanding interest in EPA rulemaking and
an effective Regional presence in that process.
Purpose
The purpose of this report is: to explain the EPA rulemaking
process as it currently exists, showing the key points and methods for
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effective Regional and State participation; to clarify the factors
that bear on the extent and quality of involvement in rulemaking by
various participants; to develop options which maximize Regional influ-
ence in EPA rulemaking while minimizing delays and resource drains;
and to formulate and present these options in a manner conducive to
decision-making.
Methodology
This report was prepared by the Planning and Evaluation Branch,
Administrative Services Division, EPA Region I, in June and July, 1983
Two summer interns frati Harvard University, David Struhs of the Kennedy
School of Government and Greg Peterson of the Law School, completed the
study with Norman Willard, Attorney-Advisor, as Project Supervisor.
After reviewing and analyzing all pertinent HQ guidance, memos, directives
and reports, and statistics on Region I participation in rulemaking for
FY82 and FY83, the project team then:
0 Interviewed Regional Regulatory Contacts in all ten Regions
to identify the various Regional mechanisms for rulemaking
participation and review and to obtain suggestions for im-
proving the process.
0 Consulted with environmental officials in two New England
States (Massachusetts and Vermont) to identify mechanisms
used by the Region I States to participate in the regulatory
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review process and to obtain suggestions for improving the
process.
0 Surveyed attitudes of Region I senior managers and staff as
well as those of Headquarters' Office of Standards and Reg-
ulations on EPA rulemaking and the participation of States,
Regions and the publics in the rulemaking process.
0 Developed a flowchart showing the EPA rulemaking process,
highlighting its key steps, time frames, participant groups
and functions, and opportunities for State and Regional par-
ticipation. Reviewed this chart for completeness and accur-
acy with OSR.
° Developed resource-conscious options to increase Regional
influence in EPA rulemaking.
0 Formulated and presented findings and options in report
formatted to give ready access to advantages, disadvantages
and other pertinent information necessary for the informed
consideration of decisionmakers.
Many individuals in the Region, Headquarters, our Region I
States, and the other Regional Offices contributed substantially to this
report. The project team would like to express its thanks to the indi-
viduals listed in Appendix J of this report for their time and support.
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SUMMARY OF FINDINGS
REGION I FACTS
0 In FY82, Region I listed 8 regulations as priorities on the
RPL; 3 of these 8 regulatory packages came to Region I in FY82;
of those 3, Region I commented on none.
° Region I was one of the two Regions which listed the smallest
number of regulations on HQ's FY83 RPL survey (10 proposed
regulations selected out of 262, or 3.8%). None of these 10
proposals have been circulated to the Regions for canment in
FY83 to date.
0 Of the 5 regulations on Region I's FY82 RPL response which did
not cane to the Region for comment, 4 were in various Work
Group stages and 1 was at OMB during FY82. Of the 10 regula-
tions on the Region's FY83 RPL response which did not ccme to
Region I for canment, 4 were in various Work Group stages, 3
were at OMB or in "Red Border" Review, 2 were withdrawn, and
Regional review was eliminated for 1 due to deadline cons-
traints and delays at OMB and OPRM.
0 In FY82, Region I commented on 17 of the 110 regulatory pack-
ages which came to the Region (15.5%); in FY83, to date,
Region I has canmented on 5 of 54 (9.3%).
REGIONAL ATTITUDES
° Both the special technical expertise and knowledge of the na-
tional picture in HQ Program Offices, and the field experience
of the Regions and States are necessary for sound and workable
regulations.
° Regional staffs feel they generally have little influence in
EPA rulemaking; they are sometimes frustrated because HQ
Program Offices rarely explain why Regional ccmments are not
incorporated.
° Region I Division Directors generally feel the formal ccmment-
ing process is too late to really influence regulatory develop-
ment and that it involves too much time and paperwork.
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SUMMARY OF FINDINGS (cont.)
0 Region I Division Directors view rulemaking as a low priority
due to the perceived lack of influence on the content of regu-
lations and resource shortages.
° Region I staff-level personnel feel that a lack of Regional
involvement in developing regulations results in eventual
problems with enforcement and delegation.
° Region I Branch Chiefs and staff perceive environmental, admin-
istrative, economic, political and staff development benefits
to joining Work Groups.
STATES' ATTITUDES
0 New England States are most often involved in EPA rulemaking
by EPA HQ or by Associations of State Officials.
0 New England's State Environmental Agencies are frustrated be-
cause they are not treated as "equal partners" when they try
to became involved in rulemaking.
0 However, New England State Environmental Agencies have joined
seme Work Groups and have both the interest and resources to
join more.
TIME SHORTAGES
° EPA Regions have, on average, 5-7 work days, and often even
less, in which to review and comment on proposed regulations.
0 All EPA Regions feel they have insufficient time for review
and canmeht and would like to have more time.
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SUMMARY OF FINDINGS (cont.)
HOW TO HAVE AN IMPACT ON REGULATORY DEVELOPMENT
0 Regional Divisions can make direct, informal contacts with HQ
Program Offices in order to attempt to influence regulatory
development.
0 Regions have 3 standard and 3 optional points at which they
can become involved in formal EPA rulemaking:
—Standard: Steering Committee Review in Development,
Proposal and Final Rule Phases;
—Optional: Join Work Group in Internal Notification
Phase; "Red Border" Review in Proposal and
Final Rule Phases.
° Regions can join Steering Committee meetings at their pleasure
but must now request participation in "Red Border" Review.
° Regions best influence a regulation early in its"development,
but this can be expensive; later involvement is cheaper, but
less effective.
' 0 A Priority Regulation System (PRS) can be an effective way to
improve Regional influence in rulemaking; PRS's are now being
used in Regions VI (Dallas), VIII (Denver), IX (San Francisco),
and X (Seattle).
0 Minor changes in approaches to/procedures for commenting can
make Region I*s comments much more effective at minimal cost
to the Region.
0 Coordination between Regions and between Regions and States
is sometimes useful in enhancing influence in rulemaking.
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SUMMARY OF FINDINGS (cont.)
OTHER FINDINGS
0 FACA limits EPA's ability to seek advice frcm States or other
external groups in rulemaking.
° However, there are effective methods for increasing public
participation in EPA operations without violating FACA.
0 Region I Division Directors and New England State Officials
want more information about the formal EPA rulemaking process.
-8-
-------
Option Packages And Action Initiatives
INTRODUCTION
There are many means available to increase Regional and State
influence on the content of EPA regulations. This section of the Report
sets out sane forty-three action initiatives to enhance the effectiveness
of participation in EPA rulemaking. These action initiatives have been
set out in indices by category, e.g. education program, their costs
estimated, and their advantages and disadvantages described.
To assist decision makers in creating a suitable plan for
participation in rulemaking, we pre-selected certain action initiatives
to create six Option Packages. Each successive Option Package would
require a greater resource canmitment. (The schematic which follows
highlights the relative "costs" associated with three of the Option
Packages.)
Option Package VI is clearly the most resource intensive,
and contains many activities that would involve the Region in extensive
outreach. For this reason decision-makers may be interested in pursuing
only some of the activities listed in Option Package VI.
In like manner, the decision-makers can choose a mix of action
initiatives from any Option Package to develop an appropriate and specific
plan for increasing Regional influence on Agency rulemaking.
-9-
-------
Note that each action initiative in the Options Packages in-
cludes, in parentheses, a citation to other parts of this report, e.g. the
Indices of Action Initiatives and the Appendix, where more complete
information is provided.
-10-
-------
OPTION PACKAGE NUMBER ONE
0 END ALL REGION I INVOLVEMENT IN FORMAL EPA RULEMAKING PROCESSES
(See Index V-7)
OPTION PACKAGE NUMBER TWO
0 MAKE NO CHANGE IN THE WAY REGION I CURRENTLY PARTICIPATES IN EPA
RULEMAKING PROCESSES
Cost Estimate: No change in Region I Workyears devoted to rulemaking
activities.
-11-
-------
OPTION PACKAGE NUMBER THREE
Begin An Education Program
0 BRIEF RA, DRA, DDs AND STAFF ON EPA KJLEMAKING PROCESS AND HOW AND
WHEN TO GET INVOLVED IN ORDER TO HAVE MAXIMUM IMPACT (See Index
1-1 & 2)
0 SEND BRIEFING PACKAGES FROM REGION I BRIEFINGS ON THE EPA RULEMAKING
PROCESS TO APPROPRIATE STATE OFFICIALS (See Index 1-3)
0 HAVE RA, DRA, DDs ASK ABOUT REGULATORY CONCERNS WHEN VISITING WITH
STATE OFFICIALS (See Index 1-4)
Increase Responsibilities of the RRC / P&E Branch
° HAVE RFC REPORT STATUS OF REGION I INVOLVEMENT IN RULEMAKING TO THE
RA ON A REGULAR BASIS (See Index II-l)
° HAVE RRC GIVE NAMES OF HQ PROJECT OFFICERS TO DIVISIONS FOR TRANSMIT-
TAL TO APPROPRIATE STATE OFFICIALS (See Index I1-4)
Modify Internal Systems
° HAVE RRC USE AN SAR-BASED FILING SYSTEM AND KEEP "HISTORIES" OF REG-
ULATIONS CURRENTLY UNDER DEVELOPMENT (See Index III-l)
° PREPARE PRE-SIGNED "NO COMMENT" SHEETS AND HAVE DDs INSTRUCT STAFF ON
WHEN TO USE THEM (See Index III-2)
° HAVE REGION I COMMENTORS CALL THE REGULATORY AUTHOR OR THE HQ PROJECT
OFFICER BEFORE AND AFTER COMMENTING (See Index III-3 & 4)
Cost Estimate: No additional work years would have to be devoted to
rulemaking activities under this Package.
-12-
-------
OPTION PACKAGE NUMBER FOUR
IN ADDITION TO
ALL ITEMS IN PACKAGE THREE:
Increase Responsibilities of the RRC / P&E Branch
° HAVE THE RRC SEND SARs TO THE RA'S OFFICE AS WELL AS TO THE DDs,
BUT ON A "BATCHED" BASIS (See Index II-2)
0 HAVE THE RRC, OR THE PLANNING & EVALUATION BRANCH, PREPARE STATIS-
TICS AND AN ANNUAL REPORT TO THE RA ON REGION I PARTICIPATION IN EPA
RULEMAKING (See Index I1-5)
Develop and Use a Priority Regulation System (PRS)
° ESTABLISH, MAINTAIN AND OPERATE UNDER A 2-TIERED, SAR-BASED, REGIONAL
PRIORITY REGULATION SYSTEM (PRS) (See Index IV-1, 2 & 3 and Appendix B)
° HAVE THE RRC, RATHER THAN DIVISION STAFF, RETURN THE PRE-SIGNED "NO
COMMENT" SHEETS, BASED ON CONTACT BETWEEN THE RRC AND STAFF WITHIN
A SPECIFIED TIME FRAME (See Index IV-3 and Appendix B)
Cost Estimate: A marginal increase in work years would be required in
order to start-up a Priority Regulation System (PRS), but
this slight increase would be offset by resource savings
once a PRS was established.
-13-
-------
OPTION PACKAGE NUMBER FIVE
IN ADDITION TO
ALL ITEMS IN PACKAGES THREE & FOUR:
Begin An Education Program
0 BRIEF STATE OFFICIALS ON THE EPA RULEMAKING PROCESS AND HOW AND WHEN
TO BECOME INVOLVED IN ORDER TO HAVE MAXIMUM INFLUENCE (See Index 1-3)
Increase Responsibilities of RRC / P&E Branch
0 HAVE THE RRC WORK CLOSELY WITH HQ'S OSR TO DEVELOP A BETTER (FASTER)
METHOD OF TRANSMITTING REGULATORY PACKAGES (See Index 11-3)
0 HAVE THE PLANNING & EVALUATION BRANCH AND/OR THE RRC WORK TO IMPROVE
THE EFFECTIVENESS OF REGION I'S WRITTEN COMMENTS (See Index 11-8 and
Appendix D)
Modify Internal Systems
0 REQUIRE DDs TO REGULARLY INFORM THE RA ON THE PROGRESS AND STATUS OF
ALL "TOP PRIORITY LIST" (TPL) REGULATIONS (See Index III-5)
0 DIVISIONS OBTAIN WORKING DRAFTS OF PROPOSED "TOP PRIORITY LIST" (TPL)
REGULATIONS AND COMMENT ON THEM (See Index V-6 and Appendix D)
0 ESTABLISH REGION I "WORK GROUPS" TO STUDY, DRAFT AND RESPOND TO PRO-
POSED "TOP PRIORITY LIST" (TPL) REGULATIONS (See Index II1-6 and
Appendix D)
0 JOIN THE WORK GROUP FOR "TOP PRIORITY LIST" (TPL) REGULATIONS (See
Index III-7, Index IV-1,2 & 3 and Appendices B and D)
0 PARTICIPATE IN STEERING COMMITTEE AND "RED BORDER" REVIEWS FOR MOST
"TOP PRIORITY LIST" (TPL) REGULATIONS (See Index IV-1,2 & 3 and
Appendices B and D)
0 ADD ATTENTION TO RULEMAKING TO REGION I PERFORMANCE STANDARDS
(See Index 111-12)
-14-
-------
OPTION PACKAGE NUMBER FIVE (cont.)
Develop and Use A Priority Regulation System (PRS)
° USE THE PRIORITY REGULATION SYSTEM (PRS) TO FOCUS ADDITIONAL RESOURCES
ON "TOP PRIORITY LIST" (TPL) REGULATIONS (See Index IV-1,2 & 3 and
Appendix B)
Expand Outreach Activities / Modify External Systems
° HAVE THE RA, DRA AND DDs COORDINATE REGION I INVOLVEMENT WITH A PRO-
POSED REGULATION WITH OTHER REGIONS AND WITH STATES (See Index 1-5
and Appendix D)
° SEND COPIES OF THE ACTION MEMOS FOR EVERY REGULATORY PACKAGE RELATED
TO A "TOP PRIORITY LIST" (TPL) REGULATION TO STATE OFFICIALS (See
Index V-l)
° SHARE THE NEWLY-CREATED WEEKLY STATUS FORMS WITH STATE AGENCIES, BUT
ON A MONTHLY BASIS (See Index II-6)
Cost Estimate: Approximately 2 to 5 additional Region I workyears would
have to be devoted to rulemaking activities. It is ex-
tremely difficult to predict costs because of variables,
e.g. complexity of the regulation, intensity of Work Group
activity, extra-agency interest, etc.
-15-
-------
OPTION PACKAGE NUMBER SIX
S E
L
E
C
T
A
N
Y
ONE
OR
SEVERAL
0 F
T
H
E
F
0
L
L
0 W I
N G
T 0
E
N
H
A
N
C
E
P A
C
K
A
G
E
T
H
R
E E,
0 R
FOUR, OR FIVE:
Increase Responsibilities of RRC / P&E Branch
° HAVE THE PLANNING & EVALUATION BRANCH CONDUCT POLLS ON SUGGESTIONS
FOR IMPROVING EXISTING REGULATIONS AND REPORT RESULTS TO EPA HQ
(See Index I1-7)
Modify Internal Systems
° RELOCATE THE RRC IN THE RA'S OFFICE (See Index III-8)
Expand Outreach Activities / Modify External Systems
0 ENCOURAGE ALL PROGRAM OFFICES TO PLACE RULEMAKING AND PERHAPS PROPOSED
RULES ON THE AGENDA AT NATIONAL MEDIA STAFF GATHERINGS (See Index V-3)
° ENCOURAGE ALL DIVISIONS TO ESTABLISH REGION I / NEW ENGLAND STATE
STAFF GATHERINGS AND TO PLACE RULEMAKING AND PROPOSED RULES ON THE
AGENDA (See Index V-2)
° ENCOURAGE THE OFFICE OF REGIONAL OPERATIONS (OReO) TO TAKE THE LEAD
IN IMPROVING REGIONAL OOOPERATION AND COORDINATION (See Index V-4)
0 REQUEST LISTS OF WORK GROUP MEMBERS, PHONE NUMBERS, ETC., FROM HQ OSR
OR HQ PROGRAM OFFICES (See Index V-5)
0 ESTABLISH AND CONDUCT A PUBLIC OUTREACH PROGRAM (See Index V-8 and
Appendix I)
0 ESTABLISH AN ADVISORY COMMITTEE FOR EACH DD (See Index V-9)
0 INCLUDE RULEMAKING IN WORKLOAD MODELS AND OBTAIN MORE RESOURCES FROM
HQ (See Index I11-10 & 11 and Index V-10)
0 PERSUADE EPA HQ TO GIVE REGIONS A THIRD WEEK FOR REVIEW AND COMMENT
ON REGULATORY PACKAGES (See Index V-ll and Summary of Information
and Opinions, Regions I - X)
-16-
-------
OPTION PACKAGE NUMBER SIX (cont.)
0 REQUIRE A RESPONSE FROM HQ PROGRAM OFFICES TO REGIONAL COMMENTS
(See Index V-12)
0 HAVE REGION I TAKE THE RESPONSIBILITY FOR DEVELOPING A REGULATION
(See Index V-13)
° ENCOURAGE CONGRESS TO REVISE THE FEDERAL ADVISORY COMMITTEE ACT
(FACA) IN ORDER TO ALLOW CLOSER EPA-STATE CONSULTATION (See Index
V-14 and Appendix E)
Cost Estimate: As specific action initiatives will be selected frati
this Package, no cost estimates can be provided.
-17-
-------
OPTION PACKAGES TO INCREASE REGIONAL IMPACT ON RULEMAKING
"Costs" & Impact Increase Left to Right
PACKAGE 3 PACKAGE 4 PACKAGE 5
-------
INDEX I: BEGIN AN EDUCATION PROGRAM.
FASR OK .
makim;
THE CHANGE
EASE OK
ADMINIS-
TRATION
RESOURCE
DEMAND Oh'
ADMINIS-
TRATION
USH1) IN
UIHKR
KJJLilUN
ADVANTAGES
DISADVANTAGES
1.
Brief the RA, DRA and DDs on the role of the Region
in rulemaking, highlighting the methods for in-
creasing the Region's impact in the process and the
role of their individual offices in the process.
Distribute flow charts and other informational
material. Remind them that the action memos attached
to the regulatory development packages by HQ's
Lead Office may be used as "executive sutmaries."
easy
easy
low
parts
Senior level policy makers
gain a better understanding of
Region I's role in rulemaking,
and how its participation can
best be improved.
2.
Brief the Division staffs on the role of the Region
in rulemaking, highlighting the importance of their
roles in the process and the assistance that the RRC
can provide. Distribute flow charts and infor-
mational materials. Include a discussion of how
caiments can be written clearly, so they have the
maximum possible impact.
easy
eesy
low
parts
Staff members gain a better
understanding of their role in
the rulemaking process and of
the assistance available to
them in this area.
Sane Division staff members
might resent being told by
non-technical personnel how
to improve written caiments.
3.
Brief appropriate State officials on the role of the
Region and the States in rulemaking, highlighting the
methods for increasing the State's impact on the
process. Distribute flow charts and other infor-
mational material.
easy
moderate
medium
to
high
no
State officials gain a better
understanding of the Agency's
rulemaking process and how
they can become involved.
Sane 6tate officials might
develop unrealistic expec-
tations, then become dis-
couraged with the limit-
ations and difficulties of
State involvement. |
i—1
A caimitment to follow '
up could add expense.
The States within the Region,
along with other Regional
Offices, will occasionally
disagree on an issue, placing
Region I in a difficult
position.
It may be difficult to target
the proper level personnel at HQ.
4.
5.
6.
Remind the RA, DRA and DDs that when they visit State
officials they should make a point of asking, if they
have particular concerns about existing or proposed
regulations that the regional office should bring to
headquarter's attention.
Remind RA, DRA and DDs that the Region can increase
its impact on the development of proposed regulations
if it coordinates its involvement with (solicits the
support of) other Reqions and the States. It is im-
portant that they develop and maintain networks with
their colleagues in other offices.
Brief HQ's Program Offices on the importance of
Regional and state involvement in the rulemaking
process. Cite examples of where this participation
resulted in better regulations, and examples of where
the lack of participation resulted in difficulties
with implementation and delegation.
easy
easy
moderate
easy
easy
moderate
low
to
high
low
mediun
yes
yes
no
The Region's role as a liaison
presides the States with a
valuable link to the entire
Agency, including HO.
Encourages intra-Regional
cooperation.
Coordination of State arid
Region I efforts increases the
impact that both have on the
Agency's rulemaking process.
May convince future Project
Officers to give increased
attention to Regional par-
ticipation in rulemaking.
-------
INDEX II: INCREASE RESPONSIBILITIES OF THE
REGIONAL RhEULATORY CONTACT/PLANNING AND
EVALUATION BRANCH.
EASE OF
MAKINC!
THE CHANGE
EASE OF
ADMINIS-
TRATION
1. Require the RRC to report the status of the Region's
involvement in rulemaking to the RA on a regular
basis.
2. Require the RRC to circulate SARs to the RA's office
as well as the applicable Division Directors.
3. Have the RRC work with HQ's OSR to develop a better
(faster) method of transmitting regulatory develop-
ment packages.
I
0
1
4. Have the RRC preside the names and telephone numbers
of the Project Officers in HQ's various Lead Offices
to State agencies and associations.
moderate
easy
easy
easy
easy
easy
easy
easy
5.
6.
Prepare an annual report for the RA on the Region's
participation in rulenaking. Include statistics
regarding level and types of involvement. Assist
the Divisions in identifying their successes and
failures at influencing regulations.
Share newly-created weekly status forms with State
agencies, but on a monthly basis.
easy
moderate
easy
easy
RESOURCE
DEMAND OF
ADMINIS-
TRATION
USED IN
aniEK
RfcJGlON
ADVANTAGES
DISADVANTAGES
low
yes
Keeps RA up-to-date on Region
I's rulemaking activity; would
elevate importance of the RRC
position and the rulemaking
process in general.
low
yes,
priority
SARs
would notify DCs and RA of new
proposals which are entering
the rulemaking process. They
could plan on the level of the
Region's involvement in their
development.
Would increase the paper
flow, particularly in the
RA's office; this infor-
mation could be given to the
RA by the RRC in a more
condensed form.
low
no
Might find method to increase
the actual time Regions have
to caiment on regulatory
development packages without
increasing the current two
weeks allowed.
low
no
Would be a valuable aid to
States which want to contact
the appropriate staff member
at HO regarding a specific
proposal.
medium
no
Gives Region a suimary of its
rulemaking activities and
allows identification of
strong and weak points. The
report's existence emphasizes
the importance of involvement
in rulemaking.
low
no
Keeps States up-to-date on
where proposals are in the
rulemaking process.
-------
INDEX II: INCREASE RESPONSIBILITIES OF THE
REGIONAL REGULATORY CONTACT/PLANNING AND
EVALUATION BRANCH (continued).
EASE OF
MAKING
THE CHANGE
EASE OF
ADMINIS-
TRATION
RESOURCE
DEMAND OF
ADMINIS-
TRATION
USED IN
OTHER
RttilON
ADVANTAGES
DISACVANTAGES
7. As an ongoing project, have the Planning and
Evaluation Branch poll staff members. States, and
other Regions for suggestions on improving existing
regulations. Pass recarmendations on to HO for
purposes of regulatory reform.
difficult
difficult
high
no
Would provide a new method for
Regions to become involved in
improving existing regulations
based on their experiences at
implementing and enforcing
regulatory programs.
8. Aid Division staff mentoera by checking their
rton-technical written cements for clarity and
consistency.
moderate
moderate
medium
yes
Ensures ttat written comments
(dealing with policy issues)
are expressed in such a way
as to have maximum impact
at HQ.
"Pride of authorship" and
the qpinion that this is
unnecessary meddling nay
cause seme conflict.
1
NJ
M
1
-------
INDEX III: MODIFY INTERNAL SYSTEMS.
EASE OK
MAKING
THE CHANGE
EASE OF
ADMINIS-
TRATION
Change the RHC's file system fran control lumbers to
official SAR numbers. Maintain the entire regulatory
development history of each proposed regulation in a
single file.
Have the Divisions prepare pre-signed, no-comment
concurrence memos which can be attached to regulatory
development packages. (The DDs will have the
responsibility for instructing the staff when these
forms should be used.)
Require the staff member preparing cements for HO to
discuss the proposed regulation with HO's Project
Officer/Regulation Author via telephone before
sending the written ccnments.
Require staff members to follow up the caiments they
send to HO with a telephone call to reinforce the
importance of those ccnments to the Project Officer.
Have the RRC remind the staff members to make these
follow up calls.
Require Divison Directors to regularly inform the
RA on the progress and status of all top-priority
regulations.
Create intra-Regional "work groups" to monitor the
development and receive working drafts of "top-
priority" regulations when the Region is unable to
participate on the official Work Group formed by HQ's
Lead Office.
moderate
easy
moderate
difficult
difficult
difficult
moderate
difficult
easy
difficult
easy
difficult
RESOURCE
DWANI) Of'
ADMINIS-
TRATION
USED IN
Oil MR
RHU1GN
ADVANTAGES
low
yes
low
yes
low
low
low
high
yes
Mould provide a logical and
easily retrievable file of
regulatory development
histories. Would make it much
easier to track the develop-
ment of a regulation.
Would speed up the flow of
less-important regulatory
development packages in and
out of the Divisions, allowing
the staff to spend more time
considering the more important
proposals.
Would improve the quality of
written cements sent to HO,
and assist in the development
of a staff-level network of
contacts with HQ counterparts.
Would increase impact of
caiments sent.
May increase the amount of
consideration Region I's writ-
ten caiments receive at HQ.
Will encourage the DDs and the
RA to keep track of and dis-
cuss rulemaking activity, and
to develop plans in this area.
The Region can offer better
ccnments and can camunicate
with the HO contacts of sev-
eral Regional employees, in-
stead of just one.
DISADVANTAGES
-------
INDEX III: MODIFY INTERNAL SYSTEMS
(continued).
EASE OF
MAKINCj
THE CHANGE
EASE OF
ADMINIS-
TRATION
RESOURCE
DEMAND OF
ADMINIS-
TRATION
USED IN
OTHER
REGION
AtVANTAGES
DISADVANTAGES
7. Appoint promising lower staff members to Work
Groups. Give these individuals access to
superiors and needed workplan flexibility.
moderate
moderate
medium
yes(I)
Less resource burden to assign
a lower staff member to a Work
Group. Excellent opportunity
for staff development.
HQ generally wants the
Regional represenatives to
be senior staff members.
Must assure HO that person
selected can speak for the
Region.
8 Locate the RRC position in the RA's Office. Consider
'combining this position with the similar functions of
the Intergoverrmental Liaison Office.
difficult
easy
little
change
fran
present
yes,
first
part
Would elevate the importance
of the RRC position, and
Regional involvement in rule-
making in general. May in-
crease efficiency by canbining
with similar IGL functions.
9 Have Division staff mergers keep records of its
camiunications (including telephone calls) regarding
rulemaking with Project Officers and Program Offices.
N>
OJ
I
difficult
difficult
high
yes
Provides Divisions with a
detailed record of their in-
volvement in the development
of a regulation. Can be help-
ful for determining why com-
ments were or were not. adopted
by HQ's Lead office.
1
10.Have Divisions dedicate a specified amount of work
year resources to formal rulemaking functions.
difficult
easy
depends on
resources
dedicated
no
Would increase Regional in-
volvement in rulemaking. Mbuld
recognize rulemaking as a
responsibility instead of an
"extra" function for Regions.
11. Include the resources needed for actively participat-
ing on work Groups and Steering Ccmnittees when
developing Regional workplans and workload models.
moderate
to
difficult
easy
medium
to
hiyh
no
Would increase Regional par-
ticipation in Work Groups and
Steering Ccmnittees.
12. Include participation in the Agency's formal rule-
making process in performance standards.
difficult
j
moderate
moderate
to
high
yes
Would increase Region I's par-
ticipation in the formal rule-
making prooess.
Not all Divisions in Region I
would be affected equally.
Seme have more opportunities
for participating in rule-
making. Also, the quality of
participation would be
difficult to measure.
-------
INDEX IV: DEVELOP AND USE A PRIORITY
REGULATION SYSTEM (PRS).
EASE OF
MAKING
THE CHANGE
EASE OF
ADMINIS-
TRATION
RESOURCE
DtMAND OF
ADMINIS-
TRATION
USED IN
oniEH
REGION
AEVANTAGES
DISADVANTAGES
1. Have the DDs categorize all of the Agency's proposed
regulations by the amount of Regional resources they
want to devote to their development. Use the
Regional Priority List created in response to OSR's
annual survey as a starting point for recognizing
"top priority" proposals. Develop lists of proposed
regulations, by SAR nunber, title, and staff member
assigned to the regulation, for each category.
Direct the RRC to specially mark all incoming
regulatory development packages which have SAR
numbers that are in the "top priority" category.
These regulatory development packages should then be
given, in addition to the regularly assigned staff
member, to the appropriate dos. The RA's Office
should also receive copies of the action memos
("executive suntiaries") of these proposals. Those
1 regulatory development packages which are not in the
"top priority" category will be sent only to the
1 assigned staff member.
moderate
moderate
medium
yes
Reduces the Division Director's
regulatory review burden, al-
lowing more time for priority
items. Priority regulatory
development packages are easily
identifiable, and the Division
knows that the RA has had an
opportunity to see it.
Division Directors loose
regular contact with reg-
ulatory proposals not on
the PRS list.
2. Keep the PRS category lists current by directing the
RRC to deliver new SARs to the DDs upon receipt.
Require the DDs to notify the RRC when they add any
new, or delete any old SAR numbers to the list, or
if they change staff assignments.
moderate
easy .
low
yes
Increases the Divisions'
ability to shift old priorities
and recognize new priorities.
3. Have the Division Directors designate a contact
person for every prcposed rule—even those not on
the PRS list. These staff members will be respon-
sible for monitoring the development of their
assigned regulations. The RRC and assigned staff
member should be in contact within 48 hours of
receipt of the regulatory package to determine if
a carment will be sent. If not, a no-ccmnent
concurrence memo will be automatically sent to OSR.
difficult
moderate
medium
yes
Division inproves its ability
to monitor all media-related
regulatory proposals in the
Agency. Allows professional
development among staff.
NOTE: Several systems for categorizing proposed regulations are now being used by other Regions. Although they
vary slightly, their advantages renain the same. By reducing the Division Director's regulatory review
burden, more time can be spent by the DO considering those issues which are most important to the Region.
However, even proposed regulations not on the PRS list receive increased attention because they will always
be sent to the same staff member. The overall result is that efficiency is increased, accountability tor
participation in rulemaking is improved, the RA is regularly updated on developments in priority areas,
there is an opportunity for staff development, and most importantly, the quality of El'A's regulations will,
be improved because of increased regional participation in rulemaking. For more detailed information on
PRS systems, see Appendix B.
-------
INDEX V: EXPAND OUTREACH ACTIVITIES/MODIFY
EXTERNAL SYSTEMS.
EASE OF
MAKING
THE CHANGE
EASE OP
ADMINIS-
TRATION
1. Provide copies of all action memos ("executive
surraries" of regulatory development packages) to
State envirormental agencies with a memo telling them
to contact the RRC or the appropriate Division if
they want to receive canplete copies of the related
packages as they becone available.
2« Have Division Directors set up annual or biannual
social/business gatherings of Regional and State
staffs by media. Invite the RRC (and the Advisory
Committees). Place proposed rules on the agenda.
'Encourage Divisions to invite both staff and policy
3. level personnel to national meetings. Make sure
that proposed rules in that Division's medium are
placed on the agenda.
I
K>
U1
4. Encourage the new OReO to take the lead in developing
inter-Regional cooperation at the policy level.
Consider reviving the Lead Region concept.
5. Require HQ's Program Offices, or OSR, to provide a
list of who serves on each Work Group, their offices
and telephone numbers, and their Work Group functions
as soon as the Work Group is formed.
moderate
to
difficult
moderate
to
difficult
moderate
moderate
moderate
moderate
moderate
moderate
moderate
easy
6.
7.
Require HQ's Program Offices, or OSR, to provide
special notice of rulemaking initiatives to Regions
which would be particularly affected by the proposed
rules. HO should also help these Regions obtain wor-
king drafts of these regulations on an ongoing basis.
End all of Region I's involvement in the Agency's
formal rulemaking process, but continue using
informal channels for participating in the review
and development of regulations.
difficult
difficult
politically
infeasible
easy
RESOURCE
DEMAND OP
ADWJS-
TRATION
USED IN
OTHER
RRJION
ADVANTAGES
DISADVANTAGES
medium
no
Provides State envirormental
agencies the opportunity to
begin monitoring proposed
regulations relatively early
in the rulemaking process.
The Regional Office, instead
of HO uses its resources to
provide this service. State
officials could, at times,
ask for large quantities of
materials.
medium
yes
Provides an opportunity for
all Region I actors involved
in rulemaking to discuss their
concerns with the process, and
to develop strategies for
increasing their impact, among
other matters.
medium
to
high
no
Would allow "cross fertiliz-
ation" of ideas, including
methods of sharing and/or
coordinating the rulemaking
workload. Develops important
networks of contacts; good for
staff development.
medium
no
OReO could act as an inform
[national clearinghouse for
all ten Regions interested
in coordinating rulemaking
activities.
Could possibly duplicate
current RMS/OSR functions
and operations.
medium
no
Would be a valuable aid to
Regions which have special
interests in a proposed reg-
ulation but cannot participate
officially on the Work Group.
medium
to
high
no
Would give "particularly
affected" Regions a better
opportunity to participate and
/or monitor the development of
pertinent regulations.
In sane cases, it may be
difficult to define "part-
icularly affected." Sane
issues are of special in-
terest to a large number of
regions.
low
no
Would release resources now
used for participating in
rulemaking for other purposes.
Would end rulemaking paperwork
without necessarily giving up
all of the Region's influence
on regulation development.
Would cause severe
organizational upheaval.
-------
INDEX V: EXPAND OUTREACH ACTIVITIES/MODIFY
EXTERNAL SYSTEMS (continued).
EASE OF
MAKING
THE CHANGE
EASE OF
ADMINIS—
TKAT1UN
RESOURCE
DEMAND OF
ADMINIS-
TRATION
USED IN
amEu
REGION
ADVANTAGES
DISADVANTAGES
8. Arrange annual local meetings between senior
technical and policy staff members and leaders from
State and local governments, business and industry,
public interest groups, and the media, in several
central locations throughout the Region. Use the
feedback fran these meetings when determining which
proposed regulations should be labelled top priority,
and, possibly, when emphasizing the importance of the
comments sent to HO. See Appendix I.
moderate
moderate
medium
yes
Would provide Region I with an
opportunity to make sure that
those proposed regulations
which it deems "top priority*
address the same issues which
are important to the various
publics in Region I. Provides
a good base of support when
presenting argunents to HO.
Must make sure such meetings
are scheduled in such a way
that they are not considered
to be official Advisory Com-
mittees which require a FACA
charter.
9. Have DOs develop Advisory Caimittees, drawing member-
ship fran the academic ccmnunity, State governments,
environmental groups, and representatives from
business and industry. Provide the divisions with
the necessary legal and staff support for this
function. Acquire a FACA charter. See Section F.
difficult
difficult
high
no
Would increase the expertise
the Region could draw on when
participating in rulemaking.
Must meet canplex legal
requirements and update
FACA charter on a regular
basis.
10. Increase the amount of travel resources allotted to
Regions for participation in rulemaking activities.
to
moderate
moderate '
mediim
to
high
no
Would increase Regional part-
icipation in meetings and re-
views held at HO and other
offices.
11.'Give Regions a third week (or in all cases a full
two weeks fran receipt) to review and caiment on
regulatory development packages prior to steering
Caimittee meetings.
difficult
easy
low
Region 3
trade
request
Would allow Region I to make
more canments and better com-
ments on regulatory develop-
ment packages.
Would slow down the rule-
making process slightly.
Would result in severe
protests by HQ program
of fices.
12. Require the HO Lead Office to respond to Regional
contents it does not incorporate into subsequent
drafts of the regulatory development package.
difficult ,
difficult
high
no
Would lessen the frustration
Regional staff members feel
when their canments are not
incorporated into subsequent
drafts, without explanation.
Would be extremely resource-
intensive for HO; no readily
apparent indications that
such activity results in
better regulations.
13. Try an experiment in which the Region takes respon-
sibility for develqping a regulation. Have the
HO staff members come and work in the Regional
Office.
difficult
difficult
medium
no
Would give HO staff an oppor-
tunity to gain an understand-
ing of the Regional perspec-
tive of rulemaking.
HO might protest this as an
infringement on its respon-
sibilities. HO might not
have enough extra staff.
14. Encourage Congress to revise the Federal Advisory
Caimittee Act (FACA) to eliminate its applicabiIity
to State officials or the various associations of
State officials while operating in their official
capacities.
politically
difficult
Not An EPA
respon-
sibility
none
no
Would allow States the ability
to participate in the Agency's
rulemaking process as "equal
partners" instead of as public
interest groups. Would allow
Regions to confer with States
without having to first obtain
official sanctions.
-------
EPA Rulemaking in 4 Phases
INTRODUCTION
The following four charts show a more detailed version of the
process by which a proposed EPA regulation becomes a rule. These four
graphics are reductions of the flowchart in Appendix C, and have been
designed to show each of the four discrete phases in the EPA rulemaking
process (Internal Notification, Development Plan, Proposal, and Final
Rule) on one page. This summary is meant to provide a detailed over-
view only. Full-size, more easily readable charts containing the same
information are set out, as indicated, in Appendix C.
-27-
-------
EPA RULEMAKING IN 4 PHASES
(Source: P&E Branch, Region I)
ADMINISTRATOR
ASSOC. ADMS.
OPRM / OLEC
ASST. ADM.
HQ LEAD
PROGRAM
OFFICE
ASST. ADMS.
* OTHER HO
PROGRAM
OFFICES
AIVISORY
BOARDS (SCIEN-
TIFIC AWISORY
BOARD etc.)
REGIONS
STEERING
COMMITTEE
WORK
GROUP
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OMB
EXTERNAL
GROUPS
TIMELINES
& NOTES
Prepares
the Start
Action
Request
AA of
OPRM
approves
the SAR
7F
SAR
filed
V
OPRM reviews justifications
for rulemaking. Confirms
classification of rule as
major, significant or minor.
->
Notified.
Designates
work Group
members.
Notified.
Designate
Work Group
members.
->
Notified.
Designate
Work Group
members.
->
¦>
Lead Office
convenes
Work Group.
OSR dis-
tributes
internal
Notices
Proceeds to Develop-
ment Plan / Advance
Notice of Proposed
Rulemaking Phase
|_2_Months Jjianinal^ rova 1 JtojSteering Oamuttee)_
| Often Ignored By HQ Program Offices. Sometimes HQPOs ~
prepare DP or ANPRM by selves and then prepare an SAR.
| 2 to 6 Weeks (Start Action Request preparation to convening of Work Group.) I
PHASE I: INTERNAL NOTIFICATION
** Have opportunities for informal input throughout
the process in addition to points depicted above.
-------
EPA RULEMAKING IN 4 PHASES
(Source: P&E Branch, Region I)
** Have opportunities for informal
input throughout the process,
in addition to points depicted
above.
PHASE II: DEVELOPMENT PLAN
l
to
ID
I
ADMINISTRATOR
AA of GPSM
solely approves
"kijot" Deueicp-
aent Plans
Red Bonier Review by
AA'8 o£ CPflM & OLEC
for only ANPf9f*s.
IActolnlstrator reviews andl
signs the Advance Notice j
of Prcpoaed Rulemaking |
ASSOC. MMS.
OPW / OLEC
ASST. ACMS.
HO LEAD
PROGRAM
OFFICE
Manages
preparation
of CP and
ANPSH
AA signs Action
Meno for JWPfff,
or transnittal
ninci if CP onl1
Formal cements. Has Steering
Oosoittee representative. Must
ask for Rod Border review oaa-
bership at this tlae.
Revises
per
closurp
i\
ife itoview t
^tif made t
:request at!
tfiC stage, t
, ASST. ACMS.
^ jlOTOER HO
** PBDGWW
OFFICES
A1VI9QRY
BOARDS (SCIEN-
TIFIC AEVISORY
BOARD, etc.)
Ponaal consents. Can JoTln
SC meeting, Must ask for
Red Border review natter-
ship at this tiae.
1R8 Review :
^«if made s
irequest att
tSC stage, i
**
REGIONS
Steerlny Caanit-
tee reviews DP/
ANpm cements k
packages.
STEQUKj
oomnrce
7fT
WORK
GROUP
Prepares CP
and ANPVM.
{Revises >
tper i
iclosure t
_V
OPRM'S OFFICE
OF STANDARDS
AND REEULA-
TIONS <06R)
06R distributes CP/ANPHM package ~
t collects ccsnents. Manages Steer-
ing Caimittee review. Arranges for
inclusion in Red Border reviews.
OSR
writes
closure
06R dlstri-
butes for
Red Boeder
Review.
OER arranges for Feder-
al Register publication
ot the Advance Notice
of Proposed Rulemaking.
OKB
BCTBMAL
GROUPS
JL
II Bi.ni| I 2 Ipf QBfi Distribution^ _ ,
TIMELINES |AA review. | | prTor to~s7eerTng Ccn. neo7iny7
fc NOTES ± _2_Honths _ _
TnoaTnalT (SAR approval to Steering OcsnaitteeT
"proceeds to Petrosal Phase . n
"after SC ifs SC apprwos it| 1
"and if OP is non-major (under 1
*$100 Billion econoalc Intact
t n n m w i
'Proceeds to prc^osal Phase
_ _2_VtoDks_H_inUap_t£ J Nonth3_for_ted
Border Review and ArtnTnTstratnr's signature
5 Da^s_for federal j
Register"clearance |
2 to § MontKs^Qijrk Group tarnation to CP approvaT — by SC and7or AaToF CPRM ar'to ANPEH puBlTcatTcn.T "
-------
EPA RULEMAKING IN 4 PHASES
(Source: P&E
Branch, Region
I)
mmikisimkb
i Cot
''•ciwntillc
iroviww.
M'l o4
scaLioya
Final policy
ASST. MM.
10 1-tAU
PKUVM
ntTIOt
otter OIIIcm
•<(t If^J ot
mmiUtiai,
r>
ronul
Ccwittoa WpfdWMitlvt. IMC
«k Cor tol tfcxxfar n '
tanhlp it Uili tU».
Ai>ST. ADfa.
iCm
iruint
IKlMlllC
ruvww,
iH kvlw i
. }itr i
'irvfut mi
¦
MVISDBY
HQMU (SCIIM-
TiflC MVI&MY
. ) b«l«ct iu*
sclvntlhc . . >>
AT
Utj. Mat *
d»r rwvi w •
Kite «t thU tlM.
m MviM i
.>Uatt I
Ml
,BC ***» '
ir4ti k
rwviM
pr U>« SN), Wtc.,
|«|iiaad
ruU* tor ici«n-
ill ic rwvi«w.
UJt dl«tr
h«tw tor
iu maw
t
ireoMg
Cm rw
lUl irr«v*«
t«knl Myli-
ur (itltcr
_ tion ot iwu
FritiMha _
• >
p_-ft
| A* rwiM, |
F3_tMfc>_ljnr_u»_oi «t r Uwt Ian
prior"to StMrtnj CBm~
2 Wit*« IUn._to 3 Month* ~~1
N*d~Haim»r nwliT
FF
Dgf'to] itnh »
iSr cmf
¦Try.'
riimim toOwr I >w|
~i— 1
s u*x* (ur mk>r«l|
bytiur'ClMr2nai(
~3~to Ttm* tta» M cBBultnii itullw to ui)Ttewla>"
-------
EPA RULEMAKING IN 4 PHASES
(Source: P&E Branch, Region I)
** Have opportunities for informal
input throughout the process,
in addition to points depicted
above.
PHASE IV: FINAL RULE
I
LO
AEMINISTOATCR
Red Bonier
Review by
AA*s of
OPRM * OLBC
Pinal policy
clearance by
GPfM.
Actainistrator reviews I
and signs Pinal Not ice[
of Rulemaking.
0
ASSOC. AOB.
OPfM / 0tEC
ASST. ACM.
HO LEAD
PROGRAM
OFFICE
Overseas Pinal Notice
of fbileaaklng drafting.
Briefs and consults
other Offloes t Boards.
(r-
AA
signs
Action
Fbmal ocnxnents. Has Steering
Oroaittee representative. Must
ask for Red Border review mera-
bership at this tiro,
Revises
per
closure
iRB Review t
, ^tif aacfe t
irequest att
iSC stage, t
ASST. AEMS.
OTHER
PROGRAM
ncvirre
-»
A1VIS0RY
BOARDS (SCIEN-
TIFIC ADVISORY
BOARD# etc.)
RB3I0T6
Formal ccmawitB. Can Join
SC nesting. Must ask for
RBd Bonier review nmter-
ship at this time. i
v. y
, ^iif aade i
'jrequest att
iSC stage, t
STEERING
COMMITTEE
iring Conlttee
reviews Pinal Not-
ice of Rulemaking
oanHentB/pftcfcaqa.
(Revises i
sper i
tclosure t
worn
GROUP
QSR distrP"
butes for
Rb>1 Border
Review
OBfi hand-
les OMB
Review
process.
opnrs office
Of STWHAFCS
AND RflGULA-
T1CNS (QSR)
C6R distributes Pinal Notice of Rule-
aaking packages & collects consents.
Manages SC review. Arranges for
inclusion in Bed Border reviews.
writes
closure
s>
G6R arranges
Federal Rsgis-
istar publlca-
tlon ot WR.
OMB
0Mb
Review k
Clearance
Other ajenr
cies review
at option
of GMB
EXTEH4AL
GROUPS
Public response to
Notice of proposed
Rulemaking. Briefings
and consultations.
P Hacks Min._to 2 Months | I jo_D»y^2_H3n th_^n^ to I
7or ReB border"Review. | (over l~*Year Tor OMB." |
II Da^s_for Federal_l
Register"clearance? |
TIMELINES
ft NOTES
AA~review/*
2 ttacka for OSR Diatrtbut tan_ _
' prTor to"~SteerTng Ca>. necitinyT
I -4~to 21 MonThs TNotTce of~Propoaed RuTenMkiriu publication to Final notice oJ RuToraakinu publication.)
-------
Summary Of State Viewpoints
Three people were interviewed to obtain the State perspec-
tive of the EPA rulemaking process for this report. They were Mr. David
Fierra, now Director of Region I1s Water Division and formerly Deputy
Commissioner of Massachusetts' Department of Environmental Quality
Engineering, Mr. Tony Cortese, Commissioner of Massachusetts' Department
of Environmental Quality Engineering, and Mr. Reginald ("Tex") LaRosa,
Director of the Environmental Engineering Division of Vermont's Agency
for Environmental Conservation.
All three of these men held the following opinions in common:
0 The State environmental agencies learn of EPA's rule-
making activity in a wide variety of ways, ranging fran
reading Notices of Proposed Rulemaking (NPRMs) in the
"Federal Register" to being contacted by a Lead Program
Office at HQ.
0 The bulk of State knowledge of and involvement in EPA
rulemaking, however, occurs through the various State
associations or executive organizations such as AISWPCA,
ASTWMPO, the National Conference of State Legislators,
and the National Governor's Association.
° EPA Region I does not serve as a communicator of State
views to EPA HQ, and it does not need to serve this func-
tion. It should, however, serve as a reference source for
-32-
-------
the States on EPA's rulemaking activities.
° The main complaint of the State environmental agencies is
not that they do not receive adequate information about
rulemaking frcm the EPA, but that when they try to bee one
involved in the process, they are not treated as equal
partners.
° When the States do become involved in rulemaking, the
personnel frcm the State environmental agencies are
often not kept up-to-date as decisions are made. The
State agencies may, for example, be reviewing the third
draft of a regulation when the EPA HQ Lead Office is
already working on the fifth or sixth version.
0 State participation in rulemaking results in the
development of better regulations because the States
offer an important and experienced perspective on
actual program management and enforcement.
° The State's environmental agencies should be given
basic systemic information on how the EPA rulemaking
process works.
According to Mr. Fierra, the States in Region I are not rou-
tinely notified by the Agency of the development of a new regulation
in any routine way. He said the States may be notified by a Regional
program officers "if relations are good," and that direct communications
-33-
-------
between the States and EPA HQ are "the exception rather than the rule."
Mr. Fierra said that regular monitoring of the "Federal Regis-
ter" to track the development of Federal regulations is very resource
intensive. Consequently, Massachusetts' Department of Environmental
Quality Engineering does not do this. Vermont's Agency of Environmental
Conservation, however, does regularly monitor the "Federal Register" and
the Environmental Reporter for proposed regulations according to Mr. LaRosa.
Mr. Cortese, Commissioner of Massachusetts' Department of
Environmental Quality Engineering, had the opinion that it is relatively
easy for a State to keep well informed of EPA's rulemaking activities.
He said that EPA sends "top people" to the meetings of the various
State associations to give the States an idea of what the EPA will be
working on for the next year. All three men agreed on the importance
of these associations and the informal networks their agencies have
developed with the Regional Office and EPA HQ.
The real problem, Mr. Cortese said, is that States are treated
as outside interest groups by the EPA instead of as equal partners.
Mr. Cortese said this is not how the State-Federal decision-making pro-
cess should work. He said the National Environmental Programs are man-
aged by EPA, but are really made up of the sum total of Federal and State
environmental activities. He estimated that 85 percent of direct nation-
al program implementation occurs at the State level.
Mr. LaRosa of Vermont said that even thought the State's com-
ments on developing regulatinos usually have no impact, the commenting
-34-
-------
process is still worthwhile because it keeps open channels of communi-
cation. Mr. LaRosa said that if a State wants its ccmraents to have any
real impact, they have to be made prior to the formal review process—
before the basic language is "set in concrete." He said Vermont's Agency
for Environmental Conservation's successes at affecting regulations could
be attributed to "being in the right place at the right time."
One hurdle to increased State participation in rulemaking,
according to both Mr. Cortese and Mr. Fierra, is the Federal Advisory
Committee Act (FACA). Mr. Cortese called FACA a "flag" that is used
to "regulate" the States. Mr. Cortese said that HQ's Office of General
Counsel is often responsible for this action, not the Lead program
Offices. He said that General Counsel has argued that States should
not be allowed to participate on Work Groups.
All three men emphasized the importance of State participation
on Work Groups. They say the State perspective should be given careful
consideration when a regulation is being developed because it is the
States which will eventually have to implement and enforce it. Mr.
Cortese said that his agency participates on Work Groups as often as
possible. He said that there are ways to participate on these groups
without spending a lot of time in Washington. Mr. LaRosa emphasized
that Vermont's Agency for Environmental Conservation has the time,
money and interest to join in the drafting of key Federal regulations,
and urged EPA to assist in opening the process.
Mr. Cortese said that States could coordinate their involvement
-35-
-------
in rulemaking by having each State serve on different Work Groups and
then exchanging information through the various State associations. He
pointed out that Massachusetts currently does not get involved in the
development of regulations where their views are already adequately
represented. Mr. LaRosa agreed that the associations and informal ccm-
muni cat ion networks could play a role in this area. Mr. LaRosa pointed
out, however, that although collegial cooperation and consensus among
the States could be a powerful force in rulemaking, it is often diffi-
cult to find unanimity among the States on environmental issues. He
said that if such cooperation is impossible, then Vermont is "willing
to go it alone."
None of the three men interviewed thought that the Regional
Office should serve as a regular, or formal conduit for the States to use
in expressing their thoughts and ccmments to EPA HQ. Mr. LaRosa noted
that the Regional staff would not always have time or resources to serve
this function. Also, there will inevitably be proposed regulations on
which the States and Region do not agree. Mr. LaRosa said Vermont wants
preserve its freedom to contact the various EPA HQ offices on its own.
Mr. LaRosa and Mr. Cortese both thought the Regional Office should serve
as an information source for the States on the Agency's rulemaking acti-
vities.
Mr. LaRosa, Mr. Cortese and Mr. Fierra all expressed an in-
terest in learning more about EPA's formal rulemaking process. They
thought EPA should make an effort to provide the States with basic sys-
temic information regarding its rulemaking process.
-36-
-------
Summary Of Information And Opinions, Regions I - X
INTRODUCTION
The following document summarizes information from the ten
EPA Regions with respect to the rulemaking process. This information
was obtained frcm interviews conducted as a part of this report. The
reader should note that in every case the person interviewed was either
the Regional Regulatory Contact (RRC) for that Region or saiteone who
works closely with that individual.
In addition, the following points should also be kept in mind.
1. The reliability of the responses to the question concern-
ing a given Region's participation on Work Groups, Steering Committee or
"Red Border" reviews may vary from Region to Region.
2. The question concerning recent changes in Regional approa-
ches to rulemaking refers to changes other than those stemming frcm the
changes initiated by the April 30, 1982 memo of former Administrator
Burford.
^ 3. The responses to the question relating to the time given
by EPA HQ to the Regions in which to comment are not based on statistical
analyses. Rather, they are grounded in the personal knowledge and exper-
ience of the person(s) interviewed. Further, where the interviewee's re-
sponse was a range of time periods, the median was chosen.
-37-
-------
QUESTION
REGION I
(Boston)
REGION II
(New York)
REGION III
(Philadelphia)
REGION IV
(Atlanta)
REGION V
(Chicago)
REGION VI
(Dallas)
REGION VII
(Kansas City)
REGION VIII
(Denver)
REGION IX
(San
Francisco)
REGION X
(Seattle)
Location of
Regional Reg-
ulatory Con-
tact (RFC).
Planning &
Evaluation
Branch, Admin-
istrative Ser-
vices Division
planning &
Evaluation
Branch, ARA
for policy &
Management
Analysis &
Services Sec-
tion, ARA for
Policy & Man-
agement
Policy & Prog-
ram Evaluation
Branch, ARA
for Policy &
Management
Records Man-
agement Sec-
tion, Planning
& Management
Division
Resource Mana-
gement Branch,
ARA for Man-
agement
Actoninistrative
Services
Branch, ARA
for Policy &
Management
Management
Systems & An-
alysis Branch,
ARA for Policy
& Management
Mgmt. Systms.&
Evltn. Branch,
Office of Pol-
icy & Resource
Management
Resource Man-
agement
Branch,
Management
Division
Does the Reg-
ion use an
internal pri-
ority system
to direct re-
gulatory re-
sources and
packages?
No.
No. Sees OSR's
Regional Pri-
ority List
(RPL) as just
another form.
Doesn't track
SARs.
No.
No. Although
ARA reviews
RPL for rules
needing spec-
ial policy
attention.
No.
Yes. 4-Tiered
system. Divi-
sion Directors
(DDs) prepare
frcin "Regula-
tory Agenda."
No.
Yes. 2-Tiered
system. Still
experimental.
Yes. 5-Tiered
system. RPL
responses
based on this
internal list.
Yes. 3-Tiered
system. Based
on SAR's.
Does the RRC
"flag" prior-
ity rules?
No.
No.
NO.
No.
No.
Yes.
No.
Yes.
Yes. "Flags"
at all prior-
ity levels.
Yes.
What does the
RRC do with
regulatory
packages on
receipt from
OSR and to
wham are they
routed?
Package logged
in. Then sent
to appropriate
DD for further
routing and
review.
package logged
in. Then sent
to appripriate
DD for further
routing and
review.
Package logged
in. Attaches
standard cover
memo. Sends to
DD for routing
and review.
Package logged
in. Then sent
to appropriate
IX) for further
routing and
review.
Package logged
in. Attaches
standard cover
memo. Sends to
DD for routing
and review.
Package logged
in. Then sent
to appropriate
DD for further
routing and
review.
Package logged
in. Then sent
to appropriate
DD for further
routing and
review.
Package logged
in. Then sent
to appropriate
DD for further
routing and
review.
Package logged
in. Then sent
to the staff
contact listed
by hand.
Package logged
in. Then sent
to appropriate
DD for further
routing arid
review.
Does the RRC
circulate
packages to
others at the
same time?
Usually not.
Sometimes copy
sent to Reg-
ional counsel.
No.
yes. To ARA fo
for policy re-
view. Also to
media staff.
NO.
NO.
SARs only are
so circulated.
To Counsel &
Cong. Liaison.
May be, depen-
ding on cont-
ent and RRC1s
judcpnent.
Yes. Staff
name appears
on list for
every rule.
Yes. Staff
nana appears
on list for
every rule.
Yes. Staff
name appears
on list for
every rule.
I
OJ
00
I
-------
I
LO
VO
QUESTION
RESIGN I
(Boston)
REGION II
(New York)
REGION III
(Philadelphia)
REGION IV
(Atlanta)
REGION V
(Chicago)
REGION VI
(Dallas)
REGION VII
(Kansas City)
REGION VIII
(Denver)
REGION IX
(San
Francisco)
REGION X
(Seattle)
Does the RA
review can-
merits?
Policy
contents only.
Yes. Very reg-
ularly.
Policy
comments only.
Yes.
Yes.
Multimedia
comments only.
Policy
ccnments only.
Yes. Very reg-
ularly.
ARA handles
policy review.
Yes. Very reg-
ularly.
Who "spots"
regulatory
policy issues
for the RA?
Division
Directors
Division
Directors
ARA
RRC
Division
Directors
Division
Directors
Division
Directors or
RRC
Division
Directors
ARA
Division
Directors
Does the RFC
assist in ed-
iting or sum-
marizing com-
ments?
No.
No.
No.
Only with
multimedia
ccrments.
No.
Only with
multimedia
comments.
No.
Yes. DDs phone
carments to
RRC who writes
and returns.
Yes. RRC helps
to write ever
90% of the
ccmments.
NO.
Who returns
ccmments to
OSR?
RRC
RRC
RRC
RRC
RRC
DDs;or RRC for
multimedia.
RRC
RRC sends with
in 48 hours.
RRC
Prior. l:RA/t».
Others: RRC.
Does the Reg-
ion maintain
statistics on
how often it
ccmments?
Yes. The RRC
develops a li-
mited number
of calculated
statistics.
No. The RRC
maintains raw
log data only.
Yes. The RRC
develops a li-
mited number
of calculated
statistics.
No. The RRC
maintains raw
log data only.
No. The RRC
maintains raw
log data only.
No raw log
data available
as DDs (not
RRC) return
most packages.
No. The RRC
maintains raw
log data only.
No. The RRC
maintains raw
leg data only.
Yes. The RRC
develops a li-
mited number
of calculated
statistics.
No. The RRC
maintains raw
log data only.
How often is
the Region on
Work Groups,
Steering Com-
mittee, or
Red Border
reviews?
On several WGs
now. On SC
less than 6
months ago.
Last RB review
unknown.
RRC believes
it has been 1-
2 years since
any such par-
ticipation.
On 5-10 WGs a
year. Follow
several of
them to SC.
Last RB review
unknown.
Region parti-
cipates in
each way sev-
eral times a
year.
RRC believes
has been cwec
1 year since
last on WG or
SC. RB 5 times
last year.
On 3-4 WGs a
year. Region
almost never
participates
in SC or RB
reviews.
RRC unsure as
to last occur-
rence of any
such partici-
pation.
On WGs about
5% of the
time. Last SC
or RB partici-
pation ever 2
years ago.
On 13 WGs now.
On SC 5 times
in the last
year. Last RB
participation
unknown.
On 2 WGs now.
Last SC or RB
participation
over 2 years
ago.
-------
QUESTION
REGION I
(Boston)
REGION II
(New York)
REGION III
(Philadelphia)
REGION IV
(Atlanta)
REGION V
(Chicago)
REGION VI
(Dallas)
REGION VII
(Kansas City)
REGION VIII
(Denver)
REGION IX
(San
Francisco)
REGION X
(Seattle)
Through what
mechanisns
does the Reg-
ion involve
States in
rulemaking?
Informal ties
between Reg-
ional & State
Program Offi-
ces.
Informal ties
between Reg-
ional & State
Program Offi-
ces.
Informal ties
between Region
& State pro-
gram Offices—
esp. in Water.
Gets States on
WGs via infor-
mal Regional &
State Program
Office ties.
Informal Prog-
ram Office
ties. Formal
ties via State
Coordinators
in RA Office.
Informal Prog-
ram Office
ties. Formal
Cong. Liaison
Office ties to
Governors.
Informal ties
between Reg-
ional & State
Program Offi-
ces.
Even informal
Regional/State
ties are rare-
ly used.
Informal ties
between Reg-
ional & State
Program Offi-
ces.
Informal ties
between Reg-
ional & State
Program Offi-
ces.
Has your Reg-
ion recently
changed its
approach to
rulemaking?
How?
Yes. This re-
port ordered
to present op-
tions for en-
hanced impact.
Same additions
to Performance
Standards.
Yes. ARA now
coordinates
Region's role
in rulemaking.
Attention to
rulemaking ad-
ded to perfor-
mance Stand-
ards. ARA now
coordinates.
No.
No.
Coordination
of rulemaking
by RA* s Office
scrapped due
to smaller
budget.
No.
Yes. Experi-
mental prior-
ity system
developed.
Yes. Priority
system devel-
oped. Ongoing
review of Re-
gional role by
DDs and RRC.
Yes. Priority
system devel-
oped. More
planning by
DDs; more con-
trol for RA.
What are the
most serious
problems the
Region cur-
rently faces
in its at-
tempts to im-
pact the
rulemaking
prooess?
Insufficient
review time.
Too much paper
work. Commen-
ting prooess
perceived as
ineffective in
altering rule
development.
Insufficient
review time.
Canment ing
prooess per-
ceived as in-
effective in
altering rule
development.
Insufficient
review time &
resources.
Commenting
prooess per-
ceived as in-
effective in
altering rule
development.
Insufficient
review time.
Insufficient
review time &
resources.
Contenting
process per-
ceived as in-
effective in
altering rule
development.
Insufficient
review time.
Insufficient
review time.
Insufficient
review time &
tight Regional
and State re-
sources.
Insufficient
review time.
Insufficient
review time &
resources.
Ccrmenting
prooess per-
ceived as in-
effective in
altering rule
development.
How much time
is your Reg-
ion given by
HO to review
& canment on
regulations?
On average, 7
working days.
On average, 7
working days.
On average, 7
working days.
On average, 8
working days.
No data base.
On average, 5
working days.
On average, 5
working days.
On average, 5
working days.
On average, 5
working days.
On average, 5
working days.
I
O
I
-------
APPENDIX A
Comparative Statistics On Regional Responses To The Regional Priority List
And The Frequency Of Canments By Region I
INTRODUCTION
The following five tables provide the following information.
1. Tables 1 and 2 show Region I's responses to the Regional
Priority List (RPL) with notes indicating for which of those regulations
Region I received regulatory packages during that year, and, of those,
which Region I commented on. Those regulations which did not came to
the Region within a given year also have notes indicating their status
during that time. Table 1 is for FY1982, Table 2 for FY1983.
2. Table 3 stows the number of regulations each EPA Region
listed on the RPL for FY1983 and expresses those figures as a percentage
of the total number of regulations then under development.
3. Tables 4 and 5 show the number of regulatory packages re-
ceived by Region I and the number of those on which Region I returned
canments for FY1982 and FY1983.
It should also be noted that Region I RPL responses for FY1982
were reconstructed fran the RPL Survey Report of EPA HQ's Office of Stan-
dards and Regulations (OSR) for that year.
-41-
-------
REGION I PRIORITY REGULATIONS — FY1982
Drinking SAR 1742
Water DEFINITION OF SMALL WATER SUPPLY TO DETERMINE TOE NEED FOR A
REGULATORY FLEXIBILITY ANALYSIS (RFA)
Status in FY82: Came to Region for Review
Waste SAR 1768
UNIFORM HAZARDOUS WASTE MANIFEST
Status in FY82: Came to Region for Review
Radiation SAR 1727
ENVIRONMENTAL PROTECTION STANDARDS FOR LOW-LEVEL RADIOACTIVE
WASTE
Status in FY82: In Wbrk Group
Water SAR 1544
Quality REMOVAL OF OIL AND HAZARDOUS SUBSTANCE DISCHARGES
Status in FY82: In Work Group
General SAR 1794
PUBLIC PARTICIPATION POLICY
Status in FY82: Came to Region for Review
SAR 1785
FINANCIAL ASSISTANCE TO STATE AND LOCAL GOVERNMENTS
Status in FY82: Part A FNR Published 10/82; Part B at OMB
for long period
SAR 1610
REVISION OF PROCUREMENT UNDER ASSISTANCE AGREEMENTS
Status in FY82: NPRM Published early FY82; In Wbrk Group
until early FY83
SAR 1729
SIMPLIFYING NEPA
Status in FY82: NPRM Published early FY82; In Vtork Group since
NOTE: Of the above regulations, only those relating to Drinking Water
(SAR 1742), Solid Wastes (SAR 1768), and Public Participation
Policy (SAR 1794) had packages ccme through Region I as part of
a formal canmenting process. Of these, none were commented on
by Region I.
-42-
-------
REGION I PRIORITY REGULATIONS — FY1983
Air SAR 1974
COMPLIANCE WITH STATUTORY PROVISIONS OP PART D OF THE CLEAN AIR
ACT - SANCTIONS FDR NONA1TAINMENT OF OZONE AND CO STANDARDS
Status in FY83: CD Part Withdrawn; 03 Part In Revision
SAR 1845
NEW SOURCE REVIEW
Status in FY83: Regional Review Eliminated due to Deadline Con-
straints, and OMB and QPRM Delays
SAR 1605
EMISSION TRADING POLICY
Status in FY83: Remained in "Red Border"/0MB Reviews
Water SAR 1722
SIMPLIFYING CONSTRUCTION GRANT REGULATIONS
Status in FY83: Still at OMB
SAR 1846
CONSTRUCTION GRANTS PROGRAM DELEGATION TO STATES
Status in FY83: At OMB for most .of FY83
SAR 1657
AMENDMENT TO SECONDARY TREATMENT REGULATIONS
Status in FY83: In "Red Border"; Now Withdrawn
SAR 1900
REVISIONS TO GENERAL PRETREATMENT REGULATIONS
Status in FY83: Still In Work Group
SAR 1752
REVISION OF THE BEST CONVENTIONAL TECHNOLOGY (BCT) OOST
TEST AND BCT EFFLUENT GUIDELINES
Status in FY83: Still In Wbrk Group
SAR 1649
EFFLUENT GUIDELINES FOR OFF-SHORE OIL AND GAS INDUSTRY
Status in FY83: Still In First Wbrk Group
Drinking SAR 1755
Water REVISED PRIMARY DRINKING WATER REGULATIONS
Status in FY83: Different Parts In Various Work Group Stages
NOTE: Of the above regulations, none had regulatory packages came
through Region I as a part of a formal commenting process.
-43-
-------
COMPARISON OF REGIONAL RESPONSES ON REGIONAL PRIORITY LIST
REGIONS I - X
FY1983
Region
Region I
Region II
Region in
Region IV
Region V
Region VI
Region VII
Region VIII
t Region IX
# of Regulations Listed
as Regional Priorities
10
59
73
32
58
10
38
50
82
49
Regulations Listed as a
Percentage of Total
3.8 %
22.5 %
27.9 %
12.2 %
22.1 %
3.8 %
14.5 %
19.1 %
31.3 %
18.7 %
Region x
21
8.0 %
NOTES: * Total number of regulations under development at the time RPL
was distributed to the Regions was 262.
t The first line represents all priorities listed by Region IX,
the second line represents all priorities listed except for
those in Region IX's "Priority E" category ("for information
only").
-44-
-------
REGULATORY PACKAGES RECEIVED AND BEING COMMENTED ON BY REGION I
FY1982
# of Regulatory # of Regulatory Pack-
Media Packages Received ages Canmented On
Air
(including
Toxic Subs.) 57 0
Water 15
Hazardous
Waste 25
General 13
Totals 110 17
-45-
-------
REGULATORY PACKAGES RECEIVED AND BEING COMMENTED ON BY REGION I
FY1983 TO DATE
# of Regulatory # of Regulatory Pack-
Media Packages Received ages Carcnented On
Air 24
Water
Drinking
Water
Hazardous
Waste 14
Toxic
Substances
Totals 54
-46-
-------
APPENDIX B
Region I Priority Regulation System (PRS) Flowcharts
INTRODUCTION
The following four flowcharts illustrate a procedure to estab-
lish, maintain and operate a Priority Regulation System (PRS) in Region I.
Four EPA Regions currently classify regulations, although each
employs a different method. Each has found a PRS an effective means of
enhancing Regional impact while reducing regulatory review burdens, im-
proving response time and controlling resource ccmmitments to regulatory
development and review.
A PRS begins with the assumption that Region I has neither
the resources nor the interest to produce significant changes in the
large majority of proposed regulations. But it further assumes Region I
has a considerable degree of expertise and/or interest as regards a lim-
ited number of regulations each year, and that the Region should throw
the bulk of its regulatory efforts into influencing these.
The content of a proposed regulation may be influenced in a
number of ways. Region I can have the greatest impact by participating
on a Work Group. Region I Divisions can exert influence by obtaining
and commenting on working drafts through informal contacts with the Work
Group or HQ Lead Program Office. Also, the RA's Office may informally
"lobby" senior management at HQ Lead Program Offices or other Regions.
-47-
-------
All such approaches can and should be utilized. But an ad hoc approach
by the Region to the formal regulatory development and review processes
hinders it in exercising informal as well as formal influence. A PRS
is an attractive and non-resource-intensive means to focus the Region's
formal participation in regulatory development and review, thereby
improving the effectiveness of both formal and informal Regional parti-
cipation in rulemaking.
The PRS outlined here is a hybrid which combines the most ef-
fective way to establish a PRS, the most efficient method for keeping
the PRS current and the sinplest, most flexible method for classifying
regulations.
The following points and assumptions should also be kept in
mind.
1. The reader should make a clear distinction between a Reg-
ion I Priority Regulation System (PRS) and the current Regional Priority
List (RPL). The RPL is a survey of the Regions undertaken annually by
HQ's OSR. While the RPL is meant to provide the Regions with feedback
on their priorities and, on occasion, to provide a given Region sane ad-
vance notification of regulatory progress in areas of special interest
indicated by that Region on the RPL, Region I personnel feel the RPL, as
it now functions in reality, to be of little practical value to the Reg-
ion.
2. A PRS on the otter hand, is an internal Regional system,
which is updated on a continuing basis. A PRS accepts the de facto
-48-
-------
Regional regulatory review and development system, with its emphasis on
Divisional control, informal participation in rulemaking, and the focus-
ing of Regional efforts on selected regulations. But, at the sane time,
it "rationalizes" the Region's participation in rulemaking by unifying
information on Regional efforts, by making this information broadly
available to decision-makers, by following through to insure such efforts
are made in consistent and effective ways, and by reducing paperwork
burdens to an absolute minimum with respect to all other regulations.
3. While the establishment of a PRS may require a small short-
term increase in resources devoted to rulemaking, it is extremely cheap
to maintain.
4. The thorough review of the Regional Priority List (RPL)
by Region I Division Directors (DDs) will only need to be done once.
Thereafter the system will be maintained by DD reviews of Start Action
Requests (SARs).
5. All future annual RPL responses will merely be the RRC's
copy of the current Region I "top priority" regulations list (TPL). CDs '
and staff will no longer have to do RPL reviews. For any regulations
missing frcm PRS lists, the RRC will obtain back SARs frcm OSR and have
DDs classify these.
6. All responsibility for classifying regulations as either
"top priority" or "nominal involvement" will rest with DDs and the RA.
7. SARs are one-page abstracts of a proposed regulations.
-49-
-------
Between 50 and 75 SARs pass through Region I each year. Of these a
large number relate to technical changes in Air regulations, which
would clearly fall into the "nominal involvement" (NIL) category. While
the Air DD will receive at most 40 SARs in a year, the large majority of
these will be easily classified and the Water and Waste DDs will receive,
on average, only 15 SARs each year. Consequently, a PRS should produce
minimal demands on the tine of DDs.
8. DDs will be free to change classifications and staff as-
signments for a proposed regulaton at any time merely by notifying the
RRC.
9. A Region I staff member will be assigned to each regulation
regardless of its classification as "top priority" or "nominal involve-
ment. "
10. It is anticipated that there will be a maximum of approxi-
mately 20 "top priority" regulations for Region I.
11. All remaining regulations will be classified "nominal in-
volvement". These packages will go directly to the appropriate staff
level contact for that particular regulation (see #6, above), saving
DDs the need to read or route such packages. Staff members may treat
their assigned "ncminal involvement" regulatory packages as "for infor-
mation" copies or as candidates for intensive review (as they and their
DDs see fit).
12. Nevertheless, it is anticipated that there will be few
-50-
-------
comments on "nominal involvement" regulations.
13. The RRC will have pre-signed "No Canment" sheets. The
RFC will be in contact with the assigned staff person within 48 hours
of transmitting a "nominal involvement" package to that person in order
to determine if a comment will be sent. If not, the RRC will simply
send a "No Comment" response to HQ OSR.
14. On the other hand, it is anticipated that every effort
will be made to canment thoroughly on "top priority" packages and to
mobilize Regional resources to gain the desired goal. The RA and the
DDs may be utilized in this regard to lobby HQ and other Regions. The
RRC may be utilized to obtain Steering Committee deadline extensions and
Regional membership on Red Border Reviews. The Region may decide on ad-
ditional ways to magnify its involvement, e.g. by asking for working
drafts, joining Wbrk Groups, creating an intra-Regional "work group,"
etc.
-51-
-------
ESTABLISHING A REGION I PRIORITY REGULATION SYSTEM (PRS)
(Source: P&E Branch, Region I)
REGIONAL
ADMINISTRATOR
(RA)
Reviews DDs
Priority
Choices. Ap-
proves RPL
and creation
of a PRS ba-
sed on it.
DIVISION
DIRECTORS
(DD)
Receives RPL
& cover memo.
Completes RPL,
carefully in-
dicating which
rules are "Top
Priority
A
Assigns one staffer to EVERY
regulation. Plans resources.
Returns RPL form (which now
shows a classification and a
Regional staff contact for
all regulations) to RRC for
preparation of PRS lists.
A
DIVISION
STAFF
I
ui
to
l
REGIONAL
REGULATORY
CONTACT
(RRC)
Receives RPL from
OSR. Attaches co-
ver memo explain-
ing how to complete
RPL so that a PRS
can be constructed
frcm RPL responses.
Receives RPL showing PRS data. Prepar-
es PRS lists by integrating DD respon-
ses. There are two PRS lists: one for
"top priority" rules, the other for
"ncminal involvement" (all others).
Each list is by SAR # and shows names
of HQ and Region I contacts. Sends RPL.
EPA HQ
OFFICE OF
STANDARDS
& REGULATIONS
(OSR)
Transmits Regional
Priority List (RPL)
which shows all
rules currently
under development
and includes a re-
sponse form.
V
V.
Receives
complet-
ed RPL,
compiles
survey
results.
STATES &
OTHER EXTERNAL
GROUPS
WITHIN
REGION I
May be contac-
ted. Advice
as to regula-
tions of great
interest may
be offered.
-------
MAINTAINING A REGION I PRIORITY REGULATION SYSTEM (PRS)
(Source: P&E Branch, Region I)
REGIONAL
ADMINISTRATOR
(RA)
->
RA reviews SAR
and DD"s class-
ification of the
regulation. RA
approves and
transmits SAR &
approval to RRG.
DIVISION
DIRECTORS
(DD)
DD reviews SAR. Assigns the
rule to one of the two pri-
ority classifications. DD
also assigns one of his staff
as Region I's contact for de-
velopment and review of that
rule, regardless of its class.
<
>
A
7fsT
DIVISION
STAFF
ui
u>
I
->
Staff member
assigned to
rule receives
copy of SAR
frcm DD & is
notified of
respons ibilities.
REGIONAL
REGULATORY
CONTACT
(RRC)
1
RRC receives SAR.
RRC must arrange to
include new regula-
tion in PRS. So,
RRC transmits 2
copies of SAR to
appropriate ED.
RRC adds regulation to eith-
er "top priority" or "nomin-
al involvement" list. Rule
listed by SAR #. List also
shows rule title, HQ contact
and name of assigned Region
I staff. RRC files SAR.
EPA HQ
OFFICE OF
STANDARDS
& REGULATIONS
(OSR)
OSR is notified
that the AA for
OPRM has appro-
ved an SAR. OSR
transmits SAR
to all Regions,
among others.
V
STATES &
OTHER EXTERNAL
GROUPS
WITHIN
REGION I
May be contac-
ted. Advice
as to regula-
tions of great
interest may
be offered.
-------
REVIEW PROCESS FDR REGULATIONS CLASSIFIED AS "NOMINAL INVOLVEMENT" USING A REGION I PRIORITY REGULATION SYSTEM (PRS).
(Source: P&E Branch, Region I)
REGIONAL
ADMINISTRATOR
(RA)
>
RA re-
views
& appro-
ves com-
ments.
DIVISION
DIRECTORS
(DD)
>
If comments,
DD reviews &
may forward
to RA for
review. Then
forwards to
RRC.
<
DIVISION
STAFF
I
<_n
>U
I
*
Staffer re-
views regula-
tory package.
Decides if
will comment
within 48 hrs.
RRC informed.
V
REGIONAL
REGULATORY
CONTACT
(RRC)
*
RRC checks package's SAR
number against PRS lists.
Ascertains proposed regu-
lation has "nominal in-
volvement" priority. RRC
thus transmits package
only to staff contact.
>
If no com-
ment, RRC
sends pre-
signed "No
Canment"
response
to OSR.
RRC receives
comments frem
DD. Files re-
gulatory pac-
kage. Sends
comments to
OSR.
_V_
EPA HQ
OFFICE OF
STANDARDS
& REGULATIONS
(OSR)
OSR receives regula-
tory package from HQ
Lead Program Office.
OSR transmits it to
Other HQ Program Of-
fices & Regions for
review and comment.
>
OSR receives com-
ments or "no com-
ment" response.
Presents to Steer-
ing Committee or
AA of OPRM if Red
Border Review.
STATES &
OTHER EXTERNAL
GROUPS
WITHIN
REGION I
-------
REVIEW PROCESS FOR REGULATIONS CLASSIFIED AS "TOP PRIORITY" USING A REGION I PRIORITY REGULATION SYSTEM (PRS).
(Source: P&E Branch, Region I)
REGIONAL
ADMINISTRATOR
(RA)
Receives
executive
surronary.
Consults
with DD &
External
Groups
RA re-
views &
approves
comments.
DIVISION
DIRECTORS
(DD)
*
Receives package
Consults with RA,
staff contact, &
External Groups.
Helps draft and
reviews comments.
Transmits to RRC.
Receives pack-
age. Consults
with DD, Exter-
nal Groups, and
HQ Project Of-
ficer. Drafts
comments.
4"
DIVISION
STAFF
ui
Ln
->
jsk
REGIONAL
REGULATORY
CONTACT
(RRC)
->
RRC checks SAR number against
PRS lists. Ascertains propo-
sed regulation is "top prior-
ity". RRC "flags", simultan-
eously sends copies to DD &
staff contact and sends copy
of executive summary to RA.
A
RRC receives
comments from
DD. Piles re-
gulatory pac-
kage. Sends
comments to
OSR.
\
EPA HQ
OFFICE OF
STANDARDS
& REGULATIONS
(OSR)
OSR receives regula-
tory package from HQ
Lead Program Office.
OSR transmits it to
Other HQ Program Of-
fices & Regions for
review and ccmnent.
V
OSR receives com-
ments. Presents
to Steering Com-
mittee or AA of
OPRM if Red Bor-
der Review.
STATES &
OTHER EXTERNAL
GROUPS
WITHIN
REGION I
May be consul-
ted. May indi-
cate views to
Region I or
formally com-
ment directly
to HQ OSR.
A
-------
APPENDIX C
EPA Rulemaking Flowchart
INTRODUCTION
The following eight pages stow the EPA rulemaking process fran
inception to rule promulgation in detail. Please refer to the Executive
Summary for an important change which may be made in the process set
out in these charts. In addition, the reader should note that the pro-
cess shown here is that followed for "major" regulations, although seme
deviations for other types of regulations have been listed. Many propo-
sed EPA regulations do not need a Start Action Requst (SAR) or follow a
considerably shortened version of the process shown here. Seme matters,
such as State Implementation Plans (SIPs) follow an entirely different
course. These variations and exceptions are complex and are best under-
stood by referring to the memoranda contained in Appendix H.
As noted in the Glossary at the entries for OLEC and "Red
Border" Review, the Office of Legal and Enforcement Counsel has recently
been reorganized into two separate Offices: General Counsel and "Enforce-
ment Counsel," the latter of which has yet to be officially titled. As
far as is known at present, both of these offices will assume the res-
ponsibilities of OLEC for reviewing and approving regulations during
"Red Border" Review. This means that three approvals (AA of OPRM,
General Counsel and "Enforcement Counsel") rather than two (AA of
OPRM, and AA of OLEC) will new be required during "Red Border" Review.
-56-
-------
The reader should substitute General Counsel and "Enforcement Counsel"
wherever "OLEC" appears on a chart in the Executive Sunmary, "EPA Rule-
making in 4 Phases" and Appendix C.
-57-
-------
(Source: P&E Branch, Region I)
EPA RULEMAKING FLOWCHART
I
Ln
00
I
ADMINISTRATOR
ASSOC. ADMS.
OPRM / OLEC
ASST. ADM.
HO LEAD
PROGRAM
OFFICE
ASST. ADMS.
OTHER HO
** PROGRAM
OFFICES
AEWISORY
BOARDS (SCIEN-
TIFIC AIVISORY
BOARD etc.)
** REGIONS
I - X
STEERING
COMMITTEE
WORK
GROUP
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
0MB
EXTERNAL
GROUPS
TIMELINES
& NOTES
Prepares
the Start
Action
Request
AA of
OPRM
approves
the SAR
7K
y_
SAR
filed
OPRM reviews justifications
for rulemaking. Confirms
classification of rule as
major, significant or minor.
** Have opportunities for informal input
throughout process, in addition to points
helnw.
XL
Notified.
Designates
Vgork Group
members.
Notified.
Designate
Work Group
members.
-»
Notified.
Designate
work Group
members.
¦>
Lead Office
convenes
Work Group.
OSR dis-
tributes
internal
Notices
Proceeds to Develop-
ment Plan / Advance
Notice of Proposed
Rulemaking Phase
|_2_Months Jnaninal)_ Jj3AR_a£prwal t.o_Steerm£ Gcnmittee)_
I Often Tgnored By HQ Program Offices. Sometimes HQPOs ~
prepare DP or ANPRM by selves and then prepare an SAR.
| 2 to 6 Weeks (Start Action Request preparation to convening of work Group.T |
INTERNAL NOTIFICATION PHASE
-------
EPA RULEMAKING FLOWCHART
(Source: P&E Branch, Region I)
** Have opportunities for informal
input throughout the process,
in addition to points depicted
below.
ADMINISTRATOR
ASSOC. ADMS.
OPRM / OLEC
ASST. ADMS.
HQ LEAD
PROGRAM
OFFICE
ASST. ADMS.
OTHER HO
** PROGRAM
OFFICES
AWISORY
BOARDS (SCIEN-
TIFIC AWISORY
BOARD, etc.)
**
REGIONS
I - X
STEERING
COMMITTEE
WORK
GROUP
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OMB
EXTERNAL
GROUPS
TIMELINES
& NOTES
Manages
preparation
of DP and
ANPRM
TTT
AA signs Action
Memo for ANPRM,
or transmittal
memo if DP only.
Prepares DP
and ANPRM.
V
Formal ccnments. Has Steering
Ccmnittee representative. Must
ask for Red Border review mero-
bership at this time.
Formal comments. Can join
SC meeting. Must ask for
Red Border review member-
ship at this time.
\y \ v
Steering Canmit-
tee reviews DP/
ANPRM comments &
packages.
OSR distributes DP/ANPRM package
& collects ccnments. Manages Steer-
ing Ccmnittee review. Arranges for
inclusion in Red Border reviews.
Tl Weekjnun^
AA review.
2 Months
2 Weeks tor OSR Distribution_ _
prior to Steering Can. meeting.
(nominal) (SAR appro/al to Steering Committee)
Revises
per
closure
memo.
->
A
_V_
:Revises :
sper s
:closure :
:memo. :
OSR
writes
closure
memo.
i
•Proceeds to Proposal Phase
•after SC if: SC approves itj *
*and if DP is nornnajor (under *
*$100 million economic impact).*
|~2~~to 8 Months"~( Work Group formatianT*to OP~apprbvaT -~~by SC~ai>d7or AA~bf OPRM~~— or~to ANPRM publTcatTon.T
DEVELOPMENT PLAN PHASE
-------
EPA RULEMAKING FLOWCHART
(Source: P&E Branch, Region I)
ADMINISTRATOR
Administrator reviews and
signs the Advance Notice
of Proposed Rulemaking
7K
ASSOC. ADMS.
OPRM / OLEC
AA Of OPRM
solely approves
"major" Develop-
ment Plans.
TV
Red Border Review by
AA's of OPRM & OLEC
for only ANPRM's.
ASST. ADM.
HQ LEAD
PROGRAM
OFFICE
**
ASST. ADMS.
OTHER HQ
PROGRAM
OFFICES
>
:RB Review
:if made
:request at
:SC stage.
**
0
1
AWISORY
BOARDS (SCIEN-
TIFIC AWISORY
BOARD, etc.)
REGIONS
I - X
STEERING
COMMITEE
>
:RB Review
:if made
:request at
:SC stage.
WORK
GROUP
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OSR distri-
butes for
Red Border
Review.
06R arranges for Feder-
al Register publication
of the Advance Notice
of Proposed Rulemaking.
OMB
EXTERNAL
GROUPS
*
Proceeds to Proposal Phase
TIMELINES
& NOTES
_ _2_Weeks_M_inirrajm_to 2_ Months_for_Red
Border Review and Administrator's signature
5 Da^s_for_Federal_
Register Clearance
DEVELOPMENT PLAN PHASE (cont.)
** Have opportunities for informal input
throughout the process, in addition to
points depicted above.
-------
EPA RULEMAKING FLOWCHART
(Source: P&E Branch, Region I)
** Have opportunities for informal
input throughout the process,
in addition to points depicted
below.
as
I—1
I
**
ADMINISTRATOR
ASSOC. ADMS.
OPRM / OLEC
ASST. ADM.
HQ LEAD
PROGRAM
OFFICE
ASST. ADMS.
OTHER HQ
PROGRAM
OFFICES
ADVISORY
BOARDS (SCIEN-
TIFIC ADVISORY
BOARD, etc.)
it if REGIONS
I - X
STEERING ~
COMMITfEE
WORK
GROUP
OPRM'S OPFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OMB
EXTERNAL
GROUPS
TIMELINES
& NOTES
Manages, coor-
dinates with
other Offices
and agencies.
A
<¦
Studies,
evalu-
tes, and
drafts.
A
V
Consulting
and other
studies
iCan
.:request
:scientific
:review.
:Can
.:request
:scientific
:review.
<
:Can
. .trequest
{scientific
:review.
>
Performs
Selective
Scientific
Reviews
aT
>
Manages
drafting of
proposed
regulation.
f|A
"A"
•>
Helps SAB, etc.,
select proposed
rules for scien-
tific review.
_3_Months
SAB Reviews
V
AA signs
Action
/
Memo
Drafts &
revises
proposed
regulation.
Public
response
to ANPRM.
_l_taeek min.
AA review.
2 to 18 Months (Task Group and consultants studies to publication of NPRM.)
PROPOSAL PHASE / DECISION PACKAGE
-------
EPA RULEMAKING FLOWCHART
(Source: P&E Branch, Region I)
ADMINISTRATOR
I
CTl
to
I
ASSOC. ADMS.
OPRM / OLEC
ASST. ADM
HQ LEAD
PROGRAM
OFFICE
* *
ASST. ADMS.
OTHER HO
PROGRAM
OFFICES
AWISORY
BOARDS (SCIEN-
TIFIC ADVISORY
BOARD, etc.)
**
REGIONS
I - X
STEERING
COMMITTEE
WORK
GROUP
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OMB
EXTERNAL
GROUPS
TIMELINES
S NOTES
Formal caments. Has Steering
Committee representative. Must
ask for Red Border review mem-
bership at this time.
Formal comments. Can join
SC meeting. Must ask for
Red Border review member-
ship at this time.
V
v_^
Steering Can.
reviews NPRM
ccrranents &
package
OSR distributes Notice of Proposed
Rulemaking packages. Manages Steer-
ing Ccnmittee review. Arranges for
inclusion in Red Border reviews.
V
Revises
per
closure
memo.
A
v
:Revises
:per
:closure
:memo. :
OSR
writes
closure
memo.
Red Border
Review by
AA's ot
OPRM & OLEC
)
RB Review
:if made
:request at
:SC stage
>!
:RB Review >
jif made :
request at:
:SC stage :
OSR distr
butes for
Red Border
Review.
_2_V^ks_forj^R_Dj:str^butj:on _
prior to Steering Can. meeting.
2 Weeks Min._to 2 Months_
Red Border Review
PROPOSAL PHASE / INTERNAL REVIEW
** Have opportunities for informal input
throughout the process, in addition to
points depicted above.
-------
EPA RULEMAKING FLOWCHART
: P&E Branch, Region I)
ADMINISTRATOR
ASSOC. AfiMS.
OPRM / OLBC
ASST. ADM.
HQ LEAD
PROGRAM
OFFICE
ASST. ADMS.
OTHER HO
* PROGRAM
OFFICES
AO/ISORlf
BOARDS (SCIEN-
TIFIC ADVISORY
BOARDS, etc.)
REGIONS
* I - X
Final policy
clearance by
OPRM.
** Have opportunities for informal
input throughout the process,
in addition to points depicted
belQW. ,
Ackninistrator reviews
and signs Notice of
Proposed Rulemaking
:Revisions:
.: based on :
sany OMB :
:conments.;
STEERING
COMMITTEE
WORK
GROUP
^L
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (QSR)
06R hand-
les OMB
Review
process
OSR arranges
Federal Regis-
ter publica-
tion of NPRM.
OMB
OMB re-
view &
clearance
EXTERNAL
GROUPS
Other agen-
cies review
at option
of OMB.
TIMELINES
& NOTES
10_Day_to 2 Month Minimums_to Over_l_Vea£
for OMB RevTews
IJS Days_for_Federal
Register Clearance
PROPOSAL PHASE / INTERNAL REVIEW (cont.)
-------
* *
**
ov
I
EPA RULEMAKING FLOWCHART
ADMINISTRATOR
ASSOC. ADMS.
OPFM / OLEC
ASST. ABM.
HO LEAD
PROGRAM
OFFICE
ASST. ADMS.
OTHER HO
PROGRAM
OFFICES
Att/ISORY
BOARDS (SCIEN-
TIFIC AEVISORif
BOARD, etc.)
REGIONS
I - X
STEEMNG
COMMITTEE
WORK
GROUP
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OMB
EXTERNAL
GROUPS
TIMELINES
S NOTES
(Source: P&E Branch, Region I)
Oversees Final Notice
of Rulemaking drafting.
Briefs and consults
other Offices & Boards.
\
AA
signs
Act ion
Mono
<-
:Considers
, "Vcarments,
' \redrafts,
;etc.
>
->
Public response to
Notice of Proposed
Rulemaking. Briefings
and consultations.
"4
Formal comments. Has Steering
Canmittee representative. Must
ask for Red Border review mem-
bership at this time.
Formal ccmments. Can join
SC meeting. Must ask for
Red Border review mentber-
ship at this time.
V
V M/
Steering Caimittee
reviews Final Not-
ice of Rulemaking
ccnments/packaqe.
OSR distributes Final Notice of Rule-
making packages & collects comments.
Manages SC review. Arranges for
inclusion in Red Border reviews.
Week_nun^
AA review.
2^ Weeks for OSR Distribution _
prior to SteerTng Can. meeting.
4 to 24 Months (Notice of Proposed Rulemaking publication to FinaT Notice oT Rulemaking publication.)
FINAL RULE PHASE
** Have opportunities for informal input
throughout the process, in addition to
points depicted above.
-------
EPA RULEMAKING FLOWCHART
** Have opportunities for informal
input throughout the process,
ource: P&E Branch, Region I) in addition to points depicted
below.
ADMINISTRATOR
Administrator reviews
and signs Final Notice
of Rulemaking.
ASSOC. ADMS.
OPRM / OLBC
\
Red Border
Review by
AA's of
OPRM & OLBC
Final policy
clearance by
OPRM.
A
/
ASST. ATM.
HO LEAD
PROGRAM
OFFICE
->
Revises
per
closure
memo.
/
ASST. ADMS.
* OTHER H3
PROGRAM
OFFICES
: a
:RB Review :
. . ^sif made :
:request at:
:SC stage. :
AWISORY
BOARDS (SCIEN-
TIFIC ADVISORY
BOARD, etc.)
k REGIONS
I - X
. .
. .
• .
:RB Review
. . ^:if made
' srequest at
:SC stage.
steering;
COMMITTEE
. •
• .
• •
\/ .
WORK
GROUP
:Revises :
:per i
rclosure :
:meno. t \
t .
OPRM'S OFFICE
OF STANDARDS
AND REGULA-
TIONS (OSR)
OSR
writes
closure
memo
-
OSR distri-
butes for
Red Border
Review
OSR hand-
les OMB
Review
process.
<-
OSR arranges
Federal Reyis-
ister publica-
tion of PNR.
OMB
• •
—^
OMB
Review &
Clearance
EXTERNAL
GROUPS
.
.
* * ^
Other agen-
cies review
at option
of OMB
•
• . •
TIMELINES
& NOTES
12 Weeks Min. to 2 Months 1 |!0_Day::2_Month_Mj_n^ tol 15 Da^s_for Federal!
| Tor Red Border Review. | |over 1 Year for OMB. | |Register clearance. |
i
FINAL RULE PHASE (cont.)
-------
APPENDIX D
Factors Which Can Help To Make Regional Comments More Effective &
Well-Written Sample Comments Which Provide Examples
Of These Factors
Maintain a well-understood, smooth-running, Regional regulatory
review process
Adhere to commenting deadlines
Keep caiments detailed and specific
—Focus on major concerns
—Cite specific sections and provide examples
—Return redrafted language for proposed regulation
—Explain consequences (environmental, political, economic,
administrative, etc.)
Write clearly and simply
Present the complete rationale
Bnphasize the importance of the views to the Region
Speak to regulation's author before commenting
—Determine positions and learn rationales of other participants
Phone Project Officer after commenting
—Reemphasize importance of views to the Region, answer questions
Brief senior Regional managers on conversations with HQ personnel
-66-
-------
Regional Administrator can adept ccmments as his/her own
Have RRC contact HQ OSR if extension of commenting deadline necessary
Request Regional participation on "Red Border" Review if regulation
is of particular concern
Obtain working drafts of regulation fran work Group; comment on these
If an important issue at stake, have RA and Division Director contact
other Regions, States, HQ Counsel and Program Offices, Region I Inter-
governmental Liaison Office, Congressional Offices, etc.
"Non-concur" if proposed regulation would have severe impact on Region
Present Regional views in person before Steering Carmittee
Join the Work Group and participate in deliberations and drafting
sessions
Establish a Regional "Work Group" to study proposals and draft res-
ponses to HQ
Keep records of communications between Regional and HQ personnel
-67-
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DATE MAY 1 8 1983
subject Red Border Review of Proposed Revisions to Visibility Regulations
TO Kathleen Bennett, Assistant Administrator
Air, Noise and Radiation
We have reviewed the proposed revisions to the visibility regulations and
have decided to Nonconcur" with comments on the Notice of Proposed
Rulemaking. While we agree that changes are needed in our current
regulations, we do not agree with the revisions which are proposed in
this package. The following summarizes our specific concerns with each
of the five issues proposed for revision:
Ro.l.e of the Federal Land Manager. We agree that our current regulation
provides too much authority to the FLM and reduces the State
responsibility to develop and implement a plan to protect visibility. As
such, the proposed revisions, with one exception, are acceptable. The
proposed revision to the §51.302(b) fails to provide clear guidance on
the FLM consultation process. Also, it does not include the specific
requirement of the Act that the State's notice of public hearing include
a summary of the conclusions and recommendations of the FLM. Suggested
language for §51.302(b) is attached.
Integral Vistas. We do not agree with the deletion of the requirements
for protecting integral vistas associated with the mandatory Federal
Class I areas. We are still 1n agreement with EPA's original rationale
for promulgating the current approach and find no basis for changing it.
The vistas associated with the mountainous Class I areas of the Western
United States are extremely important to the visitor's experience and do
not end at the artificially established boundaries of the areas. We do
feel that the identification of integral vistas should be a State
responsibility and as such revisions to the current regulation are
needed. Suggested language for §51.304 and §51.307(b)(1) is attached.
BART fpr Reconstructed Sources. We do not agree with the deletion of the
requirement for BART for reconstructed sources. The rationale for the
current requirement is that sources constructed prior to 1962 do not have
a long enough remaining useful life to warrant retrofit controls.
However, a source which was reconstructed between 1962 and 1977 is likely
to have a useful life into the next century and would therefore warrant
BART in order to remedy existing significant impairment. Also, many
sources which reconstructed between 1970 and 1977 were considered new
sources under NSPS, NESHAPs, and NSR programs and, to avoid being
inconsistent, should bd considered similarly under the visibility
protection program. The existing provisions in the current regulations
should be retained intact.
from l. Edwin Goate
Acting Regional Administrator
EPA Four. 1320-6 (Rev. 3*74)
-68-
-------
BART Re analysis. We agree that the current requirement for an ongoing
SIP program of BART reanalysis is not appropriate and we agree with the
proposal to delete this section of the regulation. However, the
regulation needs to clearly indicate that one element of the long-term
strategy to remedy existing visibility impainsent must be the
implementation of new control technology as it becomes available.
Although the BART analysis may be a one-time event, the current
unavailability of control technology cannot be allowed to preclude the
eventual control of sources which are causing or contributing to
impairment. Suggested language for §51.302(c)(2)(1) is attached.
Analysis of Control Measures. We agree that the current requirement for
the SIP to address a specific list of potential.control measures is
inappropriate. It is the States' responsibility to assess the existing
impairment, identify the causes thereof, and to adopt all of the measures
necessary to achieve the national goal of remedying any existing manmade
impairment. However, we do not agree with the proposed changes of the
word "must" to "may". Sections 51.306 (e) and (f) should be deleted in
their entirety. Rather, the regulation needs to clearly indicate that
one requirement of the long-term strategy to remedy existing visibility
impairment is the adoption of all measures necessary to control sources
of existing impairment, and should list certain of these measures as
examples. Suggested language for §51.302(c)(2) (1) is attached.
We have also attached our specific comments on each of the eighteen
proposed changes to the regulations.
I hope that our suggestions will be of use to you in resolving the
concerns with this proposed revision. If you have any questions, or wish
to discuss changes to the proposal, please contact Mr. David Bray of my
staff at 8-39 9-1980.
Attachments
cc: Bruce folkowsky
-69-
-------
Suggested Regulatory Language for Visibility Regulations
1. In Section 51.302, paragraph (b) is revised to read as follows:
§51.302 Implementation control strategies.
*****
(b) State and Federal Land Manager Coordination,
(1) The State, prior to holding the public hearing(s) on the plan
required by this Subpart, must consult in person with the appropriate
Federal Land Manager(s).
(i) Such consultation shall provide opportunity for the Federal
Land Manager to discuss their:
(A) assessment of impairment of visibility in any mandatory
Class I Federal Area;
(B) recommendations for integral vistas;
(CJ recommendations for visibility monitoring; and
(D) recommendations for the long-term strategy.
* ¦¦ -v
(2) The notice(s) to the public of the public hearing(s) shall
include a summary of the conclusions and recommendations of the
Federal Land Manager.
-70-
-------
2. In Section 52.302, paragraph (c)(2)(i) is revised to read as follows:
$51.302 Implementation control strategies.
*****
(cj * * *
(2) * * *
(i) A long-term (10 - 15 years) strategy, as specified in
$51,305 and §51.306, including such emission limitations,
schedules of compliance, and such other measures including
schedules for the implementation of the elements of the
long-term strategy as may be necessary to make reasonable
progress toward the national goal specified in §51.300(a). Such
measures shall include, but are not limited to, additional
emission limitations and schedules of compliance as new
technology becomes available, measures to mitigate the impacts
of construction activities, and smoke management techniques for
agricultural and forestry management, where such are necessary
to remedy existing impairment.
*****
3. Section 52.304 is revised to read as follows:
§51.304 Iaentification of integral vistas.
(a) The State shall develop criteria and identify integral vistas
associated with any mandatory Class I Federal area.
-71-
-------
(b) These criteria must include, but are not limited to, whether the
integral vista is important to the visitor's visual experience of the
mandatory Class I Federal area. /Adoption of criteria must be preceded by
reasonable notice and opportunity for public comment on the proposed
criteria.
(c) The State must list any integral vista in its implementation plan at
the earliest opportunity, and in no case later than at the time of
periodic review of the SIP required by §51.3061c).
4. In Section 51.307, paragraph (b)(1) is revised to read as follows:
§51.307 New source review.
lb)
(I) That may have an impact on any integral vista of a mandatory
Class I Federal area which has been listed in the SIP, or
-72-
-------
Specific Comments on Proposed Rule Revisions
Nos. 1, 2, 3 and 4 - do not change existing definitions.
Nd. 5 - Must provide further guidance on the FLM consultation process.
(See our suggested language.)
Njs. 6, 7, 8, 9 and 10 - Acceptable.
No. 11 - Retain the requirement for integral vistas but change to a State
responsibility. (See our suggested language.)
Nos. 12, 13, 14 and 15 - Acceptable.
No. 16 - Cfelete paragraph (e) entirely.
No. 17 - Delete paragraph (f) entirely.
to. 18 - Retain the requirement for integral vistas by change to
recognize State responsibility. (See our suggested language.)
-73-
-------
/ ' JUN 4 198^NITED states ENVIRONMENTAL protection agency
* 40 CFR Part 261 and 266 of RCRA Regarding the Definition
subject 0f Solid Waste and Management Standards for Hazardous
Rita M. Lavelle
Assistant Administrator for Solid Waste and Emergency Response
We have reviewed and concurred on the Red Border Package of
proposed and interim final rules to amend Parts 261 and 266;
however, we feel it is necessary to make the following comments:
1. In defining five specific types of recycling activities of
immediate regulatory concern, EPA proposes to regulate
materials which accumulate for recycling for over one year
without sufficient amounts be recycled. Specifically, EPA
has chosen to require a 75% annual turnover (recycling) of
accumulated materials to guard against over-accumulation.
While this rate of turnover would indicate legitimate
recycling activities, the verification by the Region of
annual turnover rates of less than 75% would be difficult
and resource intensive. We would prefer that EPA require
all accumulators for recycling to report annually and docu-
ment turnover rates to the respective Regional office.
This would not be a burden on the industry, since legitimate
recyclers always maintain records concerning the amount of
materials bought or available for recycling or resale. . The
responsibility for documenting annual turnover rates should
be placed on the recyclers, especially if they may seek
one-year waivers from the Regions.
2. EPA is considering the requirement for batch tolling agree-
ments between the generator and reclaimer. Based on our
experience with reclamation processess, this requirement
could result in significant problems and reduce the economic
incentives for recycling. Many generators produce small
amounts of reclaimable wastes. These wastes are accumulated
and stored until there is a sufficient amount to economically
justify shipment to a reclamation facility. Many reclaimers
have a minimum bulk quantity which they will pick up or accept.
It may be unreasonable to require that the reclaimers return
the recycled materials to the original generator within 180
days. Also, it would be very difficult, if not impossible,
for the reclamation facility to segregate the waste to be
reclaimed and the reclaimed materials for each individual
generator. This point is particularly important in the
organic solvents 're'clamation industry where processing is
accomplished by bulk distillation. It is our recommendation
that reclaimers take title to the waste to be recycled when
first under their control; i.e., picked up at the generator's
facility or delivered by the generator.
Wastes which are I
FR
Dick Whittington, \
Regional Administra
EPA Form 1320-6 (Rev. 3-76)
-74-
-------
3. Finally, we suggest that when EPA proposes to modify RCRA
regulations, the direct effect on delegated States should be
carefully evaluated. Since EPA first published the RCRA reg-
ulations in May 1980, Region 6 has worked closely with our
State agencies which, in many cases, had to seek legislative
changes in order to be eligible for RCRA delegation. The
Agency should always consider whether proposed or modified
regulations would pose statutory problems for the delegated
States. Although we understand that many of the amendments
made to the RCRA regulations have resulted from court
directives, industry suits, and petitions, Region 6 and our
State agencies support a limit on the frequency of these
amendments. We would prefer to have RCRA amendments
published only annually or even semi-annually, so that State
programs can plan ahead and undertake major regulatory re-
visions following the expected regular EPA action.
If you have any questions, please contact me.
-75-
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION V
0ATt JUN 2 51S82
subject: Red Border Review - 40 CFR Part 2-61 and 266 of RCRA Regarding the Definition
of Solid Waste and Management Standards for Hazardous Waste which are Recycled
prom- Valdas V. Adamkus
Regional Administrator
T0; Dan Fiorino, Chief
Regulation Management Staff
Standards and Regulations
Thank you for requesting our comments on the proposal to amend the recy-
cling regulations and the definition of solid waste. I apologize
for the delay in submitting our response. The Region V Waste Management
Division has reviewed the proposed amendments. Region V is concerned with
the potential adverse impact on the States, the ability of the Agency to
implement a regulatory program based on the proposal and the ability of
the Agency to enforce the proposed regulatory program. I believe that
amending these regulations to the extent proposed would be unwise at this
time. Based on our analysis, which 1s detailed below, I non-concur
with the proposed amendments.
I have the following comments on the proposed rule changes:
1. The proposed definition (§ 26.2) of Solid Waste limits the defini-
tion to those materials the Agency intends to regulate. This
limitation Increases the probability that additional amendments to
the definition will be needed at a later date. This approach may
pose a problem for States seeking interim or final authorization in
that States are required to have definitions substantially equivalent
(interim) or equivalent (final) to Federal definitions. Also, the
proposed definition of solid waste does not include hazardous wastes
which are reclaimed for use by the generator. Therefore, if a
hazardous waste, beinc} reclaimed by a generator, 1s stored in an
unsafe manner, the USEPA cannot take enforcement action against the
generator without the Regional Administrator (RA) first declaring
such recyclable hazardous wastes as solid waste and providing an
opportunity for an appeal through the hearing process. This delay
could threaten the environment. An alternative to redefining solid
waste in 40 CFR §261.2 is to amend 40 CFR §261.6 to allow specific
exemptions for certain hazardous wastes which are used, reused,
recycled or reclaimed.
2. In order to reduce the adverse environmental or health impacts which
may result from the mixing or blending of hazardous materials, we
recommend that the following requirements be Included in the Federal
regulations:
a. Any mixture of hazardous wastes or fuel graded hazardous waste
which contains Appendix VIII compounds shall remain hazardous
waste unless it can be shown that:
-76-
EPA FOAM 1320-4 (REV J-78)
-------
JUN 251382
1. With adequate air feed, the burning of the resulting mixture
or blended hazardous waste fuel 1s self-sustaining; and
11. The fuel mixture does not contain more the 0.1% (l,000ppm)
by volume of chlorinated hydrocarbon.
b. If a blended hazardous waste for fuel does not meet the above
requirements, Its burning constitutes hazardous waste Incinera-
tions, and the facility burning such waste must be subject to
certain permit requirements; such requirements include:
1. The facility (Incinerator, boiler, or other thermal recovery
units) njust have a waste feed monitoring and control system
tied to the combustion zone;
11. There must be automatic waste feed cut-off system for proper
flame management; i.e., flame-out, power failure, loss of
prime mover, etc.; and
Hi. The facility must be operating under steady state at a minimum
of 75% of Its design capacity while burning hazardous waste.
Waste feed shall not be fed into the unit during start-up or
shut-down.
3. The preamble should Include a discussion explaining and supporting the
Agency's decision to exempt certain materials under 261.2(a)(3)(ii).
4. If the alternative suggested 1n Comment 1 above 1s not adopted,
the following concerns should be addressed in any proposed amendments
published by the Agency.
a. Proposed §261.2(f) defines the circumstances under which materials
are considered to be overaccumulated. Under this provision, materials
with known recycling potential can be accumulated for a year before
they are designated as solid wastes. Given the adverse Impact
these spent materials, sludges, and by-products could have on the
environment, this provision 1s too lenient. Furthermore, 1t is
possible under this provision for the aforementioned materials to
remain outside of the Federal definition of solid waste for up to
3 years, provided certain requirements are met. For example, one
of these requirements stipulates that 75 percent of the wastes
must be recycled at the end of the first year. The requirements
become increasingly complex for the second and third year.
In addition, monitoring individual recycling facilities by review-
ing the facilities' submittal or by Inspections as required by the
regulation could result 1n an excessive administrative burden.
The determination mu$t be made by allowing exemptions under
§261.6 to those facilities which do not pose significant health
risk or damage to the environment. USEPA resources can be utilized
more efficiently in controlling or permitting those non-exempted
hazardous waste recycling/reclamation facilities.
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Jt'N 2 51=32
b. Proposed §261.2(g) all.ows the RA to find that materials being
accumulated or stored at particular operations prior to reclamation
or blending to form fuels under circumstances not included in the
definition are, 1n fact, solid wastes and subject to §262.34 and
storage permit requirements. Proposed §262.2(g)(2) sets forth
appeal procedures for the facility if the RA determines that
accumulated materials are solid wastes. The facility can challenge
the determination (that it is storing a hzardous waste) in a public
hearing on the draft permit or the decision to deny application,
or, if the RA agrees, 1n a separate public hearing on this issue.
This provision should include steps the public may take to challenge
the RA's decision.
c. Proposed §266.20-.24 requires a facility to obtain a permit
to use regulated recyclable materials 1n a manner that constitutes
disposal. The amendments should clearly state 1f the required
permit 1s essentially a Part B permit or if Parts 122 and 124
will be amended to Incorporate new requirements for these facilities.
d. Proposed §266.24 basically requires the applicant to demonstrate
that a facility's activities will not result in degradation of
groundwater, surface water, or air, and also will not result in
subsurface migration of waste constituents. Specific standards
or options the applicant could use to demonstrate compliance
with this permit requirement should be included in the regulations,
1n a note, or in the preamble. For example, the regulations
should specify what Information the applicant should submit to
demonstrate that wastes will not leach into the groundwater.
Also, the regulations should require that the applicant specify
any timeframes connected with submitted data (i.e., "over x years,
tests have shown").
5. The proposed regulations generally place a significant burden on the
RA and Regional staff since several of these provisions give the RA
discretionary authority. If an RA will have the authority to decide
these issues on a case-by-case basis, the Agency should develop and
Issue a guidance package incorporating coordination procedures to
ensure national consistency.
6. In addition I offer the following specific comments on the proposed
regulation:
a. On page 25, Section (IV)(B): The sentence, "In some cases, sludges
and by products must be listed specifically before they can be
wastes." 1s unclear. Does it mean that when the sludges and
by-products do not exhibit hazardous characteristics, the only way
they can become solid wastes is by listing?
b. Figure 2, the Wastes Types Matrix, 1s confusing. FR 45, p. 78540,
Nov. 25, 1980, states that recyclable by-products are not wastes
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K 2 5 W32
because they have not been discarded. Proposed 261.2(a)(2)
classifies as a waste any material destined for reuse when that
. reuse constitutes land disposal. These can be Interpreted to be
contradlctorary statements and should be clarified.
c. Page 39, Section (V)(D). As it now reads, proposed 261.2(a)(3)(1)
does not regard material solid waste when it 1s reclaimed by a
generator and used by someone else. Please confirm this 1n the
list of examples on pp. 46-47.
d. Page 46, Section (V)(D)(3): Example 1 should detail the fate of
residue from a spent solvent reclamation facility R. Essential-
ly, the residue should remain hazardous waste, unless 1t 1s
delisted.
e. Page 47, Section (V)(D)(3): the implications of this example need
to be clarified. Specifically, what legal responsibility does
a generator have to ensure that the fuel blended by an individual
blender is for its own use?
Note that the spent solvent will be a waste and must be managed as
hazardous waste if such assurance cannot be obtained by the generator.
f. Page 47, Section (V)(D)(4): the term "process minimally" should
be clarified and/or defined.
g. Page 37, Section (V)(C): the term "appreciable chemical change"
needs to be clarified and/or defined.
h. Page 3, 2nd paragraph, 40/CFR 261.2(a)(3)(H) and 262.2 (a)(3)(i 11):
The regulations specify that recyclable materials removed
from disposal surface impoundments are not solid waste. Similarly,
speculative accumulation of recyclable matlerlals 1s exempted from
the definition of solid waste once the material 1s taken out of
accumulation. This implies that the materials can be reclaimed by
a 3rd party reclaimer, thereby violating 261.2(a)(3)(1). See also
discussion on pages 50 and 51 of the Preamble.
1. Page 60, Section (V)(G): The preamble should address the need
for a RCRA permit or the way to achieve Interim status for this
situation. When a facility first falls to recycle 75% of the wastes
accumulated at the beginning of a year, It must file a Part A with-
in 30 days after losing such exemption and comply with Interim
status standards (assuming that it treated, stored, or disposed
of the recyclable material on or before Nov. 19, 1980). See
40 CFR 122.22(a).
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J'JH 25 iff??
In another year when the 75% turnover criterion is met, the
facility need not comply with I.S. standards. The questions
t *
(1) Can Interim Status be intermittently conferred by RCRA; and
(2) How could EPA effectively oversee this kind of operation?
j. Page 68 Section (V) (I): The time allowed for a person to apply
for a RCRA permit is 60 days after the RA's notice declaring that
the recyclable material is a "waste" (assuming that there is no
administrative review). Region V suggests that the time be limited
to 30 days for filing a Part A and 6 months for filing a Part B,
if necessary. See comment above.
k. Page 86, Section (II)(C), Part III - Proposed 261.6(c), (d) and
(e). The introductory paragraph in Section (C) is missing.
Thank you for requesting our comments.
¦80-
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./ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'i WASHINGTON. D.C. 20400
i>ui
OFFICE OF
POLICY AND RESOURCE MANAGEMENT
Steering Committee - CONSENT CALENDAR
Clearance Sheet
Date; Thursday, March 24, 1983
SUBJECT: Final Rulemaking Under TSCA Section 8(c) to Require
Recordkeeping and Reports of Allegations that Chemical
Substances Cause Significant Adverse Reactions to Health
or the Environment SAR 1138
Originating Office: Office of Pesticides and Toxic Substances
Contact: Sara Sanett 382-3843
Deadline for Response: Thursday, April 7, 1983
Office
Symbol
No Comments
Comments
Attached
Signature
OLEC
OANR
ORD
OPTS
OW
N
I W • V"\ 'Vy-I w<\.
OSWER
OA
OPRM
REGIONS
I-X
Please rpturn your written comments to Caroline Previ by COB
April 7, 1983 (PM223). If you have no comments and wish to
respond by telephone please call Caroline Previ at 382-7205.
If we do not hear from you by COB on April 7, 1983 we will
assume that you concur without comment.
C. Ronald Smith, 'Director
Office of Standards and Regulations
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
WATER
2 6 883
MEMORANDUM
TO: C. Ronald Smith, Director
Office of Standards and Regulations
Attached are the Office of Water's comments on OTS's TSCA Section 8(c)
Recordkeeping final regulation. I apologize for being late in commenting
but the delay was due to our misunderstanding that this particular regulation
had been withdrawn. I offer the following comments for consideration and
would appreciate your bringing these comments to the program's attention.
1. The current definition of significant adverse reactions, in Section
717(i) appears to have gone too far in the opposite direction from proposal.
It appears very restrictive and the word substantial is not defined. I
would recorranend deleting the word substantial from the definition so
that it reads: "Significant adverse reactions are reactions that may
indicate an impairment of normal activities..."
2. The significant reactions that can be reported in Section 717.12(a-d)
should be modified so that if even one person is exposed to a chemical or
mixture and suffers some adverse reaction a company would be required to keep
that allegation on file.
3. To the extent that worker exposure and reactions as a result of that
exposure to a chemical substance or mixtife is being reported under this regu-
lation, it seems also important to include known effects, if those effects are
occurring. This would allow adverse effects such as chloracne and other dermal
problems like this to be reported.
4. It seems appropriate that since retailer and sole distributors currently
forward allegations of adverse reactions to manufacturers, that you would impose
no additional burden on that Community by formally requiring them to continue for
warding adverse effects communications under this regulation. The same reasons
that you claim for exempting them seem to also support including these areas for
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reporting, namely, low rate of allegations any applications received are
forwarded already, and that distributor's can submit allegations in behalf
of their employees (pages 34-35 of preamble). We would suggest that these
areas not be exempted as in Section 717.7(c) and (d).
I would appreciate consideration of these comments and inclusion on
the Red Border review of this package.
cc: Don Clay
Sam Sasnett
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APPENDIX E
The Federal Advisory Committee Act And Materials
INTRODUCTION
The four documents set out in this Section deal with the Fed-
eral Advisory Canmittee Act, 5 U.S.C. App. I, ("FACA"). These documents
are, respectively: the full text of FACA; the full text of and the back-
ground for the interim rule of the General Services Administration imple-
menting FACA, as these materials appeared in the "Federal Register" on
April 28, 1983; a memorandum frcm Robert M. Perry, then General Counsel
of EPA, relating to EPA Policy on Informal Contacts and Meetings with
Outside Groups, dated March 1, 1982; and, finally, a list of the major
judicial cases interpreting FACA.
FACA is a 1972 Act of Congress. It has been amended twice,
in 1976 and 1980. Briefly stated, FACA requires that the various can-
mi ttees, boards, councils, canmissions and similar groups which meet
with or advise Federal Agencies or Officials (and are composed wholly
or in part of non-Federal employees) be formally chartered, keep records,
and operate in a manner open to the general public, including prior pub-
lic notice of such meetings in the "Federal Register."
While a number of questions concerning the purpose and appli-
cability of various sections of FACA remain open for discussion, judicial
and otherwise, it is now clear that it applies to practically every group
which is formally constituted, is not wholly composed of Federal employ-
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ees, and meets with Federal Agencies or Federal Officials in order to
offer advice or recanmendations. The breadth of FACA's applicability has
posed special problems in two areas. The first involved "political"
meetings. The U.S. District Court for the District of Columbia decided
in the case of Nader v. Baroody, 396 F.Supp. 1231 (1975) that FACA did
not apply to such meetings which are: by invitation only to named indi-
viduals; unstructured by the Federal Agency or Official; informally or-
ganized in the sense that the membership of the group meeting with the
Agency or Official is constantly changing; and "not conducted for the
purpose of obtaining advice on specific subjects indicated in advance."
Id. at 1235. While the court warned that it would not allow an Agency
or Official to deliberately structure meetings with "outside" groups so
as to avoid FACA, it is apparent that such evasion is regularly practiced
with innocent intent. The striking similarity between Judge Gesell's
description of the White House meetings upheld in Nader (Id. at 1232)
and the description of the public forums organized by EPA Region III in
Section L of this report is but one example.
The second area of difficulty involves the judicial determina-
tion that FACA provisions apply to State authorities in their relations
with Federal Agencies and Officials. While Federal environmental stat-
utes, as well as others, make the States co-regulators with the Federal
Agencies and not "special interests" whose dealings Congress sought to
open to public view through FACA, none of the language in FACA exempts
State agencies or officials or their national organizations. Thus, the
Federal Courts have consistently held that many meetings between Federal
-85-
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Agencies or Officials and States, their officials, agencies and associa-
tions, are subject to the provisions of FACA. During interviews conduc-
ted as part of this report with State officials, these officials indica-
ted that from their standpoint it was difficult to formally participate
in policy decisions and discussions and in EPA rulemaking due to FACA.
In light of these difficulties, the National Governors' Asso-
ciation sought to amend FACA. Governor Jay Rockefeller, Chairman of the
the NGA's Energy and Environment Canmittee, spoke to Senator David
Durenberger (R-Minnesota) concerning an amendment which would allow the
States to deal directly and privately with with EPA prior to the public
canment period for proposed regulations. No specific language or amend-
ment form was suggested. Similar approaches were made to members of the
House but no one there was willing to sponsor such an amendment. Senator
Durenberger was of the opinion that the specific statutory mandates of
environmental statutes, which require State participation, overrode the
application of FACA. Nevertheless, Senator Durenberger was willing to
offer an amendment. In late 1981, he offered an amendment to the Regu-
latory Reform Bill (S.1080) to amend §3 (2)(C)(iii) of FACA to read as
follows: "The term 'advisory canmittee' ... excludes ...'any ccrranittee
which is composed wholly of full-time officers or employees of the Fed-
eral Government, or State or local elected officials or their represen-
tatives, or representatives of their national organizations acting in
their official capacities.'" The amendment was passed out of the Gov-
ernmental Affairs Caranittee. The Bill, as amended, was passed by the
Senate, but did not pass the House.
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FEDERAL ADVISORY COMMITTEE ACT
Pub.L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended Pub.L. 94-409,
t 6(c). Sept. 13, 1976, 90 Stat. 1247; Pub.L.
96-523, S 2, Dec. 12, 1980, 94 Stat. 3040.
Soc* 80C4
1. Short title. B. Establishment and purpose of ad-
2. Findings and purpose. vlsory committees; publication In
& Definitions. Federal Register; charter: filing,
I. Applicability: restrictions. contents, copy.
5. Responsibilities of Congreaalonal 10. Advisory committee procedure*;
committees: review; guidelines. meetings; notice, publication In
6. Responsibilities of the President; re- Federal Register: regulations;
port to Congress: annual report to minutes; certification; annual re-
Congress; exclusion. port; Federal officer or employee,
7. Responsibilities of the Director, Of- attendance.
flee of Management and Budget; 11. Availability of transcripts; "agency
Committee Management Secretariat, proceeding".
establishment; review; recom- 12. Fiscal snd administrative provisions;
mendatlons to President and Con- recordkeeping; audit; agency tap-
!;ress; agency cooperation; per- port services.
ormance guidelines; uniform pay 13. Responsibilities of Library of Con-
guidelines ; travel expenses; ex- grass; reports and background
peose recommendations. papers; depository.
& Responsibilities of agency heads: 11 Termination of advisory committees;
Advisory Committee Management renewal; continuation.
Officer, designation. IB. Effective date.
§ 1. Short title
This Act may be cited as the "Federal Advisory Committee Act",
fi 9. Findings and purpose
(a) The Congress finds that there are numerous committees, boards,
commissions, councils, and similar groups which hare been established to
advise officers and agencies in the executive branch of the Federal Gov-
ernment and that they are frequently a useful and beneficial means of
furnishing expert advice. Ideas, and diverse opinions to the Federal Gov-
ernment.
(b) The Congress further finds and declares that—
(1) the need for many existing advisory committees has not been
adequately reviewed;
(2) new advisory committees should be established only when
they are determined to be essential and their number should be kept
to the minimum necessary;
(3) advisory committees should be terminated when they are no
longer carrying out the purposes for which they were established;
(4) standards and uniform procedures should govern the estab-
lishment, operation, administration, and duration of advisory com-
mittees;
(5) the Congress and the public should be kept Informed with re-
spect to the number, purpose, membership, activities, and cost ot ad-
visory committees; and
(6) the function of advisory committees should be advisory only,
and that all matters under their consideration should be determined,
in accordance with law, by the official, agency, or officer Involved.
EXECUTIVE ORDBB NO. 11088
Ei.Ord.No.U686, Oct. 7. 10T2, 37 F.R. 21421, set oat as a note under this section,
which related to committee management, was superseded by Kx.Ord.No.11789, Feb.
21, 1974, 89 F.R. 7125, set out as a note under this section.
EXECUTIVE OBDEB NO. 111«9
Bx.Ord.No.n70e, Feb. 21, 1974, 39 F.R. 7120, formerly Bet out as a note under this
section, which related to committee management, was revoked by Ex.Ord.No.l2tiG4,
Dec. 1, 1977, 42 F.R. 81440; set ont as a note under thla section.
FBI L A OR MM E J
3
EXECUTIVE OBDER NO. 1
Dec. 1, 1677, 42 F.R. 61448
TRANSFBR OF CURTAIN ADVISORY COMMITTEE FUNCTIONS
By vlrtne of the authority vested In me
by the Constitution and statutes of the
United States of America, including the
Federal Advisory Committee Act. aa
amended (B V.B.C. Add. I) [thla Appen-
dix], Section SD1 of Title 3 of the United
States Code laectlon 301 of Title 3. The
President], Section 202 of the Budget
and Accounting Procedures Act of 1950
(31 O.8.C. 681c) [section 081c of Title 31,
Money and Finance], and Section 7 of
Reorganisation Plan No. 1 of 1977 (42
FR S6101 (October 21. 1977)) [set out in
Appendix II of this title), and as Presi-
dent of the United States of America, In
accord with the transfer of advisory com-
mittee functlona from the Office of Man-
agement and Budget to the General Ser-
vices Administration provided by Reor-
enlsatlon Plan No. 1 of 1977 [set out
Appendix II of this title]. It Is hereby
ordered as follows:
Section 1. The transfer, provided by
Section 5F of Reorganisation Plan No. 1
of 1977 (42 FR S6101) (set out In Ap-
Rradix 11 of this title], of certain func-
ons under the Federal Advisory Com-
mittee Act, as amended (0 U.S.C. App. I)
[this Appendix], from the Office of Man-
agement and Budget and Its Director to
the Administrator of General Services is
hereby effective.
See. S. There Is hereby delegated to
the Administrator of General Services all
the functions vested In the President by
the Federal Advisory Committee Act, as
amended, except that, the annual report
to the Congress required by Section 8
(c) of that Act [section ¦ 6(c) of this
Appendix] shall be prepared by the Ad-
ministrator for the Presidents consid-
eration and tranamlttal to the Congress.
Bee. 8. The Director of the Office of
Management and Budget shall take all
actions necessary or appropriate to ef-
fectual e the transfer of functions provid-
ed In this Order, Including the transfer
of funds, personnel and positions, assets,
liabilities, contracts, property, records,
and other Items related to the functlona
transferred.
Bee. 4. Executive Order No. 11769 of
February 21, 1974 la hereby revoked.
Bee. S. Any rules, regulations, orders,
directives, circulars, or other actiona
taken pursuant to the functions trans-
ferred or reassigned as provided In this
Order from the Office of Management
and Budget to the Administrator of Gen-
eral Services, shall remain In effect aa
If Issued by the Administrator until
amended, modified, or revoked.
Bee. 8. This Order shall be effective
November 20, 1977.
Jimmt Cartes
fi 8. Definitions.
For the purpose of this Act—
(1) The term "Director" means the Director of the Office of Man-
agement and Budget.
(2) The term "advisory committee" means any committee, board,
commission, council, conference, panel, task force, or other similar
group, or any subcommittee or other subgroup thereof (hereafter in
thla paragraph referred to as "committee"), which is—
(A) established by statute or reorganization plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more agencies,
in the interest of obtaining advice or recommendations for the Presi-
dent or one or more agencies or officers of the Federal Government,
except that such term excludes (1) the Advisory Commission on In-
tergovernmental Relations. (II) the Commission on Government Pro-
curement, and (111) any committee which 1b composed wholly of full-
time officers or employees of the Federal Government.
(3) The term "agency" has the same meaning as In section 651
(1) of Title E.
(4) The term "Presidential advisory committee" means an ad-
visory committee which advises the President.
lades to Notes
Advisory committee 1
Aseney 4
Exemptions B
Purpose 1
Standing to sne 8
1. Purpose
This Appendix was Intended to apply
to committees created by agencies and to
those not originally created by agencies
but aubsequently used by them as advis-
ory committees. Center for Auto Safety
v. Tlemann. D.C.D.C.1976, 414 F.Supp. 2IB.
Remanded on other grounds 580 F.Zd 688,
188 U.S.App.D.C. 428.
Purpose of this Appendix Is to elimi-
nate useless advisory committees,
strengthen Independence of remaining ad-
visory committees, and prevent advlRory
groups from becoming self-serving. Con-
sumers Union of U. 8.. Inc. v. Depart-
ment of Health. Ed. and Welfare. P.CD.
C.1976, 409 F.Supp. 473, affirmed 001
F.2d 468, 179 U.S.App.D.C. 280.
Thla Appendix was not intended to ap-
ply to all amorphous, ad hoc group meet-
ings; only groups having some sort of, .
established structure and defined purpose'
constitute "advisory committees" within
meaning of this Appendix, Nader v. Bar-
oody, D.C.n.C.1078. $96 F.Supp. 1231.
In enacting this Appendix, Congress
was concerned with formally organised
advisory committees which President or
-------
TITLE 5—APPENDIX I
an executive department or official di-
rected to make recommendations on Iden-
tified governmental policy for which spe-
cific advice was sought, id.
1* Adrlioir committee
Determination that the American Asso-
ciation of State Highway and Transpor-
tation Officials Is an advisory committee
within the meaning of Federal Advisory
Committee Act, this Appendix, when It
provides input to the Federal Highway
Administration with respect to proposals
to require that state highway construc-
tion plans provide for minimum safety
standards did not impermissibly Impair
the organisation's freedoms of speech and
association under U.8.C.A.Const Amend.
1. Center for Auto Safety v. Cox, 1078,
680 F.2d 680, 188 U.S.App.D.C. 426.
Although Nuclear Regulatory Commis-
sion's Advisory Committee on Reactor
Safeguards Is an "advisory committee"
subject to provisions of this appendix the
Commission's Atomic 8afety 'and Licens-
ing Board is not an "advisory commit-
tee." Hunt v. Nuclear Regulatory Com-
mission, D.C.Okl.l079t 468 F.Supp. 817, af-
firmed 611 F.2d 832, certiorari denied 100
8.Ct. 1084, 445 U.S. 006, 63 L.Ed.2d 322.
Organisation consisting of representa-
tives of state highway and transportation
departments and officials of United
States Department of Transportation was
"utilised" by Federal Highway Adminis-
tration when adopting regulations relat-
ing to certification acceptance of state
safety standards pursuant to the Federal
Highway Act. section 101 et seq. of Title
23, so that discussions between the Fed-
eral Highway Administration and the or-
ganisation were covered by this Appen-
dix. Center for Auto 8afety v. Tlemann.
IXC. 1076, 414 F.Sopp. 210, remanded on
D (f r4^OI>l>d8 080 M 689, 188 U 8 App-
Fact that Food and Drug Administra-
tion mar have lacked statutory authority
to require cosmetics industry to test in-
gredients lo products would not preclude
Administration from appointing appro-
priate advisory committee on such sub-
ject, which committee would be subject
to this Appendix. Consumers Union of
U. S., Inc. v. Department of Health. Ed.
and Welfare, D.C.D.C.1078. 409 F.Sanp.
473, affirmed HI F.2d 466, 170 U.S.App.
D.C. 280.
Where organisation representing cos-
metics Industry presented industry-spon-
sored proposal to Food and Drug Admin-
istration, seeking Its advice and com-
ments regarding voluntary cosmetics test-
ing program, and Administration was un-
able either to develop or require cosmet-
ics testing program, such presentation by
organisation did not give rise to "adviso-
ry" relationship within meaning of tbla
Appendix. Id.
"Established," within provision of this
section defining advisory committee as
one established by statute, does not In-
clude committees which merely can be
said to owe their existence to legislation.
Lombardo v. Handler, D.C.D.C.1075. 307
F.Supp. 702, affirmed 546 F.2d 1043. 178
U.S.App.D.C. 277. certiorari denied 07
S.Ct. 2630. 431 U.S. 032, 631 L.Ed.2d 248.
Bi-weekly White House meetings with
selected groups, including major business
organisations and private sector groups,
do not creAte "advisory committees"
within meaning of this Appendix. Buch
meetings are unstructured, Informal and
not conducted for purpose of obtaining
advice on specific subjects Indicated In
advance. Nader ~. Baroody, D.C.D.C.1075,
306 F.Supp. 1231.
t Standing to sue
Neither private cltlsen nor United
States Senator, either as consumers or by
virtue of Senator's position as such, had
standing to complain that National Pe-
troleum Council and its subgroups were
unlawfully functioning as advisory com-
mittees because they were not fairly bal-
anced In membership and were Improper-
ly Influenced by petroleum Industry spe-
cial Interests, contrary to requirements of
this appendix and Federal Energy Ad-
ministration Act, section 761 et seq. of
Title 15. Metcalf v. National Petrmeum'
Council, 1077, 663 F.2d 176, 180 U.S.App.
D.C. 31.
Consumer representative, who asked to
attend certain bl-weekly meetings with
selected groups held at White House and
who was denied admission, bad atandlng
to seek declaration that such meetings
created "advisory committees" within
meaning of this Appendix. Nader v.
Baroody, D.C.D.C.1075, 8M F.Supp. 1231.
4* AfeiMjr
National Academy of Sciences Is not an
"agency" within this appendix, requiring
certain publicity of committee meetings,
and its committee on motor vehicle emis-
sions is not an "advisory committee" ei-
ther as a committee established by stat-
ute or one established or utilised by the
Environmental Protection Agency. Lom-
bardo v. Handler, D.C.D.C.1075, 307 F.
Supp. 702, affirmed 546 F.2d 1013, 178
U.S.App.D.C. 277, certiorari denied 97 8.
Ct. 2630, 431 U.S. 032, 53 L.Bd.2d 248.
B. Exemptions
In order to be exempt from require*
ments of the Federal Advisory Committee
Act, this Appendix, as a state or local
committee, a group must show that It Is
a state or local committee and that It
was established to advise or make recom-
mendations to state or local agencies.
Center for Auto Safety v. Cox, 1978, 680
F.2d 680, 188 U.S.App.D.C. 426.
By creating exception to the Federal
Advisory Committee Act, this Appendix,
for state and local committees, Congress
intended to Include state and local com-
mittees under this Appendix only when
they function at the federal level. Id.
American Association of 8tate Highway
and Transportation Officials, an organl-
satlon which is national In scope, whose
purpose Is to foster the development of a
nationwide. Integrated transportation
system, whose bylaws charge Its policy
committee with preparing official presen-
tation on legislative proposals, and whose
representatives regularly testify before
Congress, is not exempt from require-
ments of the Federal Advisory Committee
Act, this Appendix on the theory that It
la a state or local committee. Id.
Exemption from requirements of this
Appendix where committee is composed
wholly of full-time officers or employees
of the federal government did not apply
to committee of state and federal em-
ployees. Center for Auto Safety v. Tle-
mann, D.C.D.C.1076, 414 F.8upp. 215, re-
manded on other grounds 680 F.2d 680, 188
U.8.App.D.C. 426.
Exclusion from requirements of this
Appendix provided for the Advisory
Commission on Intergovernmental Rela-
tions was not available to shade organi-
sation consisting of representatives of
state highway and transportation denart-
ments and officials of the United States
Department of Transportation from re-
quirements of this Appendix. Id.
FEDERAL ADVISORY COMMITTEE ACT
8 4. Applicability; restrictions
i (a) The provisions of this Act or of any rule, order, or regulation
promulgated under this Act shall apply to each advisory committee except
to the extent that any Act of Congress establishing any such advisory
committee specifically provides otherwise.
(b) Nothing In this Act shall be construed to apply to any advisory
committee established or utilized by—
(1) the Central Intelligence Agency; or
(2) the Federal Reserve System.
(c) Nothing In this Act shall be construed to apply to any local civic
group whose primary function is that of rendering a public service with
respect to a Federal program, or any State or local committee, council,
board, commission, or similar group established to advise or make recom-
mendations to State or local officials or agencies.
8 3. Responsibilities of Congressional committees; review; guide-
lines
(a) In the exercise of its legislative review function, each standing
committee of the Senate and the House of Representatives shall make a
continuing review of the activities of each advisory committee under Its
Jurisdiction to determine whether such advisory committee should be
abolished or merged with any other advisory committee, whether the re-
sponsibilities of such advisory committee should be revised, and whether
such advisory committee performs a necessary function not already being
performed. Each such standing committee shall take appropriate action
to obtain the enactment of legislation necessary to carry out the purpose
of this subsection.
(b) In considering legislation establishing, or authorizing the estab-
lishment of any advisory committee, each standing committee of the Sen-
ate and of the House of Representatives Bhall determine, and report such
determination to the Senate or to the House of Representatives, as the case
may be, whether the functions of the proposed advisory committee are
being or could be performed by one or more agencies or by an advisory
committee already In existence, or by enlarging the mandate of an exist-
ing advlBory committee. Any such legislation Bhall—
(1) contain a clearly defined purpose for the advisory committee;
(2) require the membership of the advisory committee to be fairly
balanced In terms of the points of view represented and the functions
to be performed by the advisory committee;
(3) contain appropriate provisions to assure that the advice and
recommendations of the advisory committee will not be Inappropri-
ately Influenced by the appointing authority or by any special In-
terest, but will Instead be the result of the advisory committee's in-
dependent Judgment;
(4) contain provisions dealing with authorization of appropri-
ations, the date for submission of reports (If any), the duration of
the advisory committee, and the publication of reports and other ma-
terials, to the extent that the standing committee determines the
provisions of section 10 of this Act to be Inadequate; and
(6) contain provisions which will assure that the advisory com-
mittee will have adequate staff (either supplied by an agency or em-
ployed by it), will be provided adequate quarters, and will have
funds available to meet its other necessary expenses.
(c) To the extent they are applicable, the guidelines set out In Bub-
sectlon (b) of this section shall be followed by the President, agency
heads, or other Federal officials In creating an advisory committee.
Index to Notes
Balanced point of view
Orders 2
Standing to «ne 1
15 U.S.f 4 —*
1. Standing to sne ...
In action for declaratory and Injunctive
relief alleging that National Petroleum
Council and its subgroups were unlawful-
ly functioning as advisory committees be-
-------
Til —A IDI
nine they were not fairly balanced In 8enator showed no neiaa between hie al-
memberahlp and were Improperly Influ* leged Injuries and defendants' challenged
enced by certan petroleum Industry Bpe- action. Id.
clal Interests contrary to requirements of | Orders
' Where dispute as to whether particular
U organliatlon was covered by the Federal
thsm^ilo. «. -^Ivlsory Committee Act, this Appendix,
hVlh^f tnr "--nJIl »« P aroae out of the consultation by a federal
tpntlal agency with the organisation over certain
t« ho.ith nVTS nMhf! ^^15 proposed regulations, and where there
ntai tenoiii. fmii h It" WBa DO allegation or proof that all con-
!Kt ta,'ts between the agency and the organl-
•flnriil^? confer utlon constituted a utilization of the or-
larlv In l »hf o»TJ iw thin ^Tl no Sanitation as advisory committee, order
nexus hPtwwn niMn^lfff SnilJrt wh»fI» that ony ,ut'ire meeting between the rep-
D6IUB between plaintiffs Alleged Injuries KMntBtlvM at iha crnvprnmont
Slf vefN»dt?nD„'Si fWMi ^ and^the oVanliat^on'li aihfejrtrrfe
n (11«« m? i B O.? Council, P.C. Federal Advisory Committee Act was
Sm m F.Supp. 267, affirmed BS3 overbroad; the order should apply only
F.2d 179. to consultation for advice or recommen-
In action by United States Senator datlons on proposed regulations. ' Center
alleging that National Petroleum Conned for Auto Safety v. Cox, 1978, 580 F.2d
and Its subgroups were unlawfully func- ®9, 188 U.S.App.D.C. 426.
tlonlng as advisory committees because 3. Balanced point of view
they were not fully balanced In member- Failure of the defendant commission to
ship and were Improperly Influenced liy appoint more than one Individual In out-
certain petroleum Industry apeclal Inter- iqioken opposition to ratification of the
ests. Senator did not have standing to Equal Rights Amendment (ERA) to tlio
sue on theory that defendants' actions United States Constitution when setting
had affected effectiveness of his votes for up the atate committee to coordinate
ii Appendix and Federal Energy Ad- lobbying activities for the amendment In
ministration Act, section 781 et seq. of state legislature waa not such as to es-
Tltle 15, and had hindered him in carry- tabllsh a violation of this Appendix In
!!?i.?iu !8 legislative duties through his that this Appendix did not, by Its terms
i!l ! ? }° unbiased advice and ac- or otherwise, require balancing of points
5"'*™ Information from Department of of view on the Equal Rights Amendment
Interior and rederal Energy Admlntatra- Issue In the state coordinating commlt-
tlon because of Council's Input Into that tee. Hall v. Slegel. D.C.II1.19T7. 487 F.
process, particularly In view of fact that Supp. 780.
§ 6. Responsibilities of the President; report to Congress; annual
report to Congress; exclusion
(a) The President may delegate responsibility for evaluating and tak-
ing action, where appropriate, with respect to all public recommendations
made to him by Presidential advisory committees.
(b) Within one year after a Presidential advisory committee has sub-
mitted a public report to the President, the President or his delegate shall
make a report to the Congress stating either his proposals for action or
Ms reasons for Inaction, with respect to the recommendations contained
In the public report.
(c) The President shall, not later than March 31 of each calendar year
(after the year In which this Act is enacted), make an annual report to
the Congress on the activities, status, and changes In the composition of
advisory committees In existence during the preceding calendar year. The
report Bhall contain the name of every advisory committee, the date of and
authority for its creation, Its termination date or the date It Is to make a
report. Its functions, a reference to the reports it has submitted, a state-
ment of whether It is an ad hoc or continuing body, the dates of Its meet-
ings, the names and occupations of Its current members, and the total
estimated annual cost to the United States to fund, service, supply, and
maintain such committee. Such report shall Include a list of those ad-
visory committees abolished by the President, and In the case of advisory
committees established by statute, a list of those advisory committees
which the President recommends be abolished together with his reasons
therefor. The President shall exclude from this report any Information
which. In his Judgment, should be withheld for reasons of national securi-
ty, and he shall Include in such report a statement that such information
Is excluded.
FE1 Li OH" —MN B / — "7
B T. Responsibilities of the Director, Office of Management and
Budget; Committee Management Secretariat, establishment: reviews
recommendations to President and Congress; agency cooperation; per-
fonnance guidelines; uniform pay guidelines; travel expenses; expense
recommendations
(a) The Director shall establish and maintain within the Office of
Management and Budget a Committee Management Secretariat, which
shall be responsible for all matters relating to advisory committees.
(b) The Director shall, immediately after October 6, 1972, institute a
comprehensive review of the activities and responsibilities of each ad-
visory committee to determine—
(1) whether such committee is carrying out its purpose;
(2) whether, consistent with the provisions of applicable statutes,
the responsibilities assigned to It should be revised;
(8) whether It should be merged with other advisory commit-
tees; or
(4) whether Is should be abolished.
The Director may from time to time request such information as he
deems necessary to carry out his functions under this subsection. Upon
the completion of the Director's review he shall make recommendations to
the President and to either the ageney head or the Congress with respect
to action he believes should' be taken. Thereafter, the Director shall carry
out a similar review annually. Agency heads shall cooperate with the Di-
rector in making the reviews required by this subsection.
(o) The Director shall prescribe administrative guidelines and man-
agement controls applicable to advlBory committees, and, to the maximum
extent feasible, provide advice, assistance, and guidance to advisory com-
mittees to Improve their performance. In carrying out his functions un-
der this subsection, the Director shall consider the recommendations of
each agency head with respect to means of improving the performance of
advisory committees whose duties are related to such agency.
(d)(1) The Director, after study and consultation with the Civil Ser-
vice Commission, shall establish guidelines with respect to uniform fair
rates of pay for comparable services of members, staffs, and consultants
of advisory committees In a manner which gives appropriate recognition
to the responsibilities and qualifications required and other relevant
factors. Such regulations shall provide that—
(A) no member of any advisory committee or of the staff of any
advisory committee shall receive compensation at a rate in excess
of the rate specified for OS-18 of the General Schedule under section
G332 of Title 6;
(B) such members, while engaged In the performance of their
duties away from their homes or regular places of business, may be
allowed travel expenses, including per diem In lieu of subsistence, as
authorised by section 6703 of Title 5, for persons employed Inter-
mittently In the Government service; and
(C) such members—
(I) who are blind or deaf or who otherwise qualify as handi-
capped Individuals (within the meaning of section 601 of the
Rehabilitation Act of 1973 (29 U.S.C. 794) ), and
(II) who do not otherwise qualify for assistance under section
3102 of Title 6, by reason of being an employee of an agency
(within the meaning of section 3102(a) (1) of such Title 6),
may be provided services pursuant to section 3102 of Buch Title 6
while in performance of their advisory committee duties.
(2) Nothing in this subsection shall prevent—
(A) an individual.who (without regard to his service with an ad-
visory committee) Is a full-time employee of the United States, or
(B) an Individual who immediately before his service with an
advisory committee was such an employee,
-------
TITLE 5—APPENDIX I
from receiving compensation at the rate at which he otherwise would be
compensated (or was compensated) as a full-time employee of the United
States.
(e) The Director shall Include In budget recommendations a summary
of the amounts he deems necessary for the expenses of advisory com-
mittees, including the expenses for publication of reports where appro*
prlate.
As amended Pub.L. 9S-623, ( 2. Dec. 12. 1980, 94 Stat. 3040.
ItlmiwM In Text. Section SOI of the sixty lays after Dec. 12. 1080, see section
Rehabilitation Act of 1973, referred to In S of Pub.L. 66-623, set out as a note
subsec. (d)£l) (C)(1), Is classified to sec- under section 3102 of this title.
tlon TBI of Title 29, Labor, rather than to Legislative History. For legislative
-ectlon 794 of Title 29 as shown In text, history and purpose of Pnb.L. 96-023, see
1080 Amendment. Sobsec. (d)(1). Pub. 1980 U.S.Code Cong, and Adm.News, p.
Effective Date of" 1980 Amendment.
Amendment by Pub.L. 96-028 effective
S S. Responsibilities of agency heads; Advisory Committee Manage-
ment Officer, designation
(a) Each agency head shall establish uniform administrative guidelines
and management controls for advisory committees established by that
agency, which shall be consistent with directives of the Director under
section 7 and section 10. Each agency shall maintain systematic infor-
mation on the nature, functions, and operations of each advisory com-
mittee within Its jurisdiction.
(b) The head of each agency which has an advisory committee shall
designate an Advisory Committee Management Officer who shall—
(1) exercise control and supervision over the establishment, pro-
cedures, and accomplishments of advisory committees established by
that agency;
(2) assemble and maintain the reports, records, and other papers
of any such committee during Its existence; and
(3) carry out, on behalf of that agency, the provisions of Bectlon
552 of Title 5, with respect to such reports, records, and other papers.
8 9. Establishment and purpose of advisory committees; publication
In Federal Register; charter: filing, contents, copy
(a) No advisory committee shall be established unless such establish-
ment is—
(1) specifically authorised by statute or by the President; or
(2) determined as a matter of formal record, by the head of the
agency Involved after consultation with the Director, with timely no-
tice published In the Federal Register, to be In the public Interest In
connection with the performance of duties Imposed on that agency
by law.
(b) Unless otherwise specifically provided by statute or Presidential
directive, advisory committees shall be utilized solely for advisory func-
tions. Determinations of action to be taken and policy to be expressed
with respect to matters upon which an advisory committee reports or
makes recommendations shall be made solely by the President or an of-
ficer of the Federal Government.
(c) No advisory committee shall meet or take any action until an ad-
visory committee charter has been filed with (1) the Director, In the
case of Presidential advisory committees, or (2) with the head of the
agency to whom any advisory committee reports and with the Btandlng
committees of the Senate and of the Houbo of Representatives having leg-
islative Jurisdiction of such agency. Such charter shall contain the fol-
lowing Information:
(A) the committee's official designation;
(B) the committee's objectives and the scope of its activity;
(C) the period of time necessary for the committee to carry out
Its purposes;
(D) the agency or official to whom the committee reports;
(B) the agency responsible for providing the necessary support
for the committee;
FEUISKAL AUV1SUKI tUMMllTKlS AU1
3 iv
(F) a description of the duties for which the committee Is re-
sponsible, and, If such duties are not solely advisory, a specification
of the authority for such functions;
(0) the estimated annual operating costs in dollars and man-
years for Buch committee;
(H) the estimated number and frequency of committee meetings;
(1) the committee's termination date. If less than two years from
the date of the committee's establishment; and
(J) the date the charter is filed.
A copy of any such charter shall also be furnished to the Library of Con-
gress.
Index to Hotes Compliance, necessity of
Where a federal agency utilises an ad-
Complianee, necessity of 8 vlsory committee for the purpose of ob-
Porpose 1 talning advice, the agency must charter
" establish the committee In compli-
ance with all the terms of this Appendix;
1* Purpose and failure to comply with such require-
Purpose of this Appendix la to control menta cannot be employed as a subter-
the advisory committee process and to fuge for avoiding the public access re-
open to public scrutiny the manner In qulrentente of this Appendix. Food Chem-
whlch government agencies obtain advice leal News, Inc. v. Davis, D.C.D.C.1974,
from private individuals. Food Chemical 378 F.Supp. 1048.
News, Inc. v. Davis, D.C.D.C.1974, 378 F.
Snpp. 1048.
g lO. Advisory committee procedures; meetings; notice, publica-
tion In Federal Register; regulations; minutes; certification; annual
report; Federal officer or employee, attendance
(a) (1) Each advisory committee meeting shall be open to the public.
(2) Except when the President determines otherwise for reasons of
national security, timely notice of each such meeting shall be published
in the Federal Register, and the Director shall prescribe regulations to
provide for other types of public notice to Insure that all interested per-
sons are notified of such meeting prior thereto.
(3) Interested persons shall be permitted to attend, appear before, or
file statements with any advisory committee, subject to such reasonable
rules or regulations bb the Director may prescribe.
(b) Subject to »ectlon 662 of Title 5, the records, reports, transcripts,
minutes, appendixes, working papers, drafts, studies, agenda, or other
documents which were made available to or prepared for or by each ad-
visory committee shall be available for public inspection and copying at
a single location in the offices of the advisory committee or the agency
to which the advisory committee reports until the advisory committee
ceases to exist.
(c) Detailed minutes of each meeting of each advisory committee shall
be kept and shall contain a record of the persons present, a complete and
accurate description of matters discussed and conclusions reached, and
copies of all reportB received. Issued, or approved by the advisory com-
mittee. The accuracy of all minutes shall be certified to by the chairman
of the advisory committee.
(d) Subsections (a)(1) and (a)(3) of this section shall not apply to
any portion of an advisory committee meeting where the President, or
the head of the agency to which the advisory committee reports, deter-
mines that such portion of Buch meeting may be closed to the public In
accordance with subsection (c) of section 652b of Title 6. Any such de-
termination shall be In writing and shall contain the reasons for such
determination. If such a determination is made, the advisory committee
shall Issue a report at least annually setting forth a summary of its ac-
tivities and Buch related matters as would be Informative to the public
consistent with the policy of section 652(b) of Title 6.
(e) There shall be designated an officer or employee of the Federal
Government to chair or attend each meeting of each advisory committee.
The officer or employee so designated Is authorized, whenever he deter-
mines it to be In the public Interest, to adjourn any such meeting. No ad-
visory committee shall conduct any meeting In the absence of that officer
or employee.
-------
11
E»
[
(f) Advisory committees shall not hold any meetings except at the call
of, or with the advance approval of, a designated officer or employee of
the Federal Government, and In the case of advisory committees (other
than Presidential advisory committees), with an agenda approved by such
officer or employee.
As amended Pub.L. 94—409, 8 6(c), Sept. 13, 1976, 90 Stat. 1247.
1976 Amendment. Pub.L. 94-409 added
"portion of an" following "to any" and
substituted provision! relating to de-
terminations for closing to the pub-
lic such portion of the meeting In ac-
cordance with section SS2b(c) of Title 5,
for provisions relating to determinations
of matters listed in section 003(b) of Ti-
tle 0.
Effective Date of 1976
Amendment by Pub.L. 94-409 effective 180
dayB after Sept. 18, 1970, see section 6 of
Pnb.L. 04-409, set ont as a note under
section 662b of this title.
Legislative History. For legislative
history and purpose of Pub.L. M-409, see
1978 U.H.Code Cong, and Adm.News, p.
2183.
lfotes of Decisions
Harden of proof •
Construction with other tews 1
Bxehun of Information B
Injunction 7
Interagency or lnt*M«eney memoranda
•
Meetings within section f
Pnblle aeeees 8
Public participation 4
Purpose >
Regulations 10
Standing to sue 11
1. Construction with other law*
Freedom of Information Act provisions,
section 002 of this title, dealing with ln-
tra-ageney and interagency memoranda
are applicable, under this section to ad-
visory committee meetings. Aviation
Consumer Action Project r. Washburn,
1976, 030 F.2d 101, 170 U.8.App.D.C. 27S.
Subsection (d) of this section, provid-
ing that a meeting may be closed when
It Is determined by agency head that
such meeting will Involve matters listed
In Freedom of Information Act, section
SS2 of this title, did not apply so as to
permit exclusion of public from all meet-
ings of sdvlsory committees serving cost
of living council. Nader v. Dunlop, D.C.
D.C.1973, 870 F.Supp. 177.
t. Purpose
Two separate "Informal" meetings with
consumer and distilled spirits Indnstry
representatives relative to drafting pro-
posed regulations of the Bureau of Alco-
hol, Tobacco and Firearms of the Trea-
sury Department on Ingredient labeling
of distilled spirits were meetings of "sd-
vlsory committees" utilised by the Bu-
reau Director to obtain advice within the
meaning of this Appendix, and said
meetings were therefore open to the pub-
lic. Food Chemical News, Inc. v. Davis,
8!
D.C.D.C.1074. 378 F.8upp. 1
-------
TITLE 5—APPENDIX I
8 18. Responsibilities of Library of Congress! reports and back-
ground papers; depository
Subject to section 652 of Title 6. the Director shall provide for the fil-
ing with the Library of Congress of at least eight copies of each report
made by every advisory committee and, where appropriate, background
papers prepared by consultants. The Librarian of Congress shall es-
tablish a depository for such reports and papers where they shall be avail-
able to public Inspection and use.
g 14. Termination of advisory committees; renewal; continuation
(a) (1) Each advisory committee which la in existence on the effec-
tive date of this Act shall terminate not later than the expiration of the
two-year period following such effective date unless—
(A) In the case of an advisory committee established by the Pres-
ident or an officer of the Federal Government, such advisory com-
mittee Is renewed by the President or that officer by appropriate ac-
tion prior to the expiration of such two-year period; or
(B) in the case of an advisory committee established by an Act of
Congress, Its duration Is otherwise provided for by law.
(2) Each advisory committee established after such effective date shall
terminate not later than the expiration of the two-year period beginning
on the date of its establishment unless—
(A) In the case of an advisory committee established by the
President or an officer of the Federal Government such advisory
committee is renewed by the President or such officer by appropri-
ate action prior to the end of Buch period; or
(B) in the case of an advisory committee established by an Act of
Congress, its duration Is otherwise provided for by law.
(b) (1) Upon the renewal of any advisory committee, such advisory
committee shall file a charter In accordance with section 9(c).
(2) Any advisory committee established by an Act of Congress shall
file a charter in accordance with such section upon the expiration of each
successive two-year period following the date of enactment of the Act es-
tablishing such advisory committee.
(3) No advisory committee required under this subsection to file a
charter shall take any action (other than preparation and filing of such
charter) prior to the date on which such charter is filed.
(c) Any advisory committee which Is renewed by the President or any
officer of the Federal Government may be continued only for successive
two-year periods by appropriate action taken by the President or such of-
ficer prior to the date on which such advisory committee would other-
wise terminate.
References In Text. Effective date ot ninety days following enactment of Pub.
this Act, referred to In subsec. (a) (1), aa L. 92-483 on Oct. 0, 1972, see section IB of
meaning effective upon expiration of Pub.L. 92-463.
EXECUTIVE ORDER NO. 11827
Bx.Ord.No.11827, Jan. 4. 1970; 40 F.R. 1217, aa amended, formerly set oat as a note
under tbla section, which provided for the continuance of certain federal advisory com-
mittees, waa superseded by Bx.Ord.No.11948, Dec. 20, 1978, 41 F.R. 66706, set out as a
note under this section.
EXECUTIVE ORDER MO. 11S4S
Bi.Ord.No.llW8, Dec. 20, 1978, 41 F.R. 66706, as amended by Bx.Ord.No.12007. Aug. 22.
1977, 42 F.R. 42839; Bx.Ord.No.12039, Dec. 14. 1977, 42 F.R. 63631, formerly set out as a
note under this section, which provided for the continuance of certain federal advisory
committees, wss superseded by Bx.Ord.No.12110, Dec. 28, 1978, 44 F.R. 1069, set out as
a note under this section.
KXIOUTITB ORDER HO. 1S0OT
Aug. 22, 1977, 42 F.R. 42839
TBRUINATION OF CERTAIN PRESIDENTIAL ADVISORY COMMITTEES
By virtue of the authority vested In me (S D.8.C. App. I), it 1b hereby ordered
by the Constitution and statutes of thu aB follows:
United States of America, and as Preal- Section 1. (a) The Cltlsens' Advisory
dent of the United States of America, In Council on the Status of Women Is ter-
order to terminate certain advisory com- mlnated.
mlttees in accordance with the provisions (b) Executive Order No. 11128 of No-
of the Federal Advisory Committee Act vember 1, 1983, as amended by Executive
FEDERAL ADVISORY COMMITTEE ACT
S 14
Order No. 11221 of May 8. I960 [set out
as a note under Section 2000e of Title 42.
The Public Health and Welfare], Is far-
ther amended as follows:
(1) Subsection (6) of Section 102 Is re-
voked.
(2) Section 103, In order to delete a
reference to the Council, Is amended to
read as follows:
"Annually the Committee shall trans-
mit a report to the President concerning
the status of women."
(3) Part II Is revoked.
(4) "
. . The second sentence of Section 801,
In order to delete references to the Coun-
cil, Is amended to read as follows:
"To the extent practical and to the ex-
tent permitted by law (1) all Executive
agencies shall cooperate with the Com-
mittee and furnish It auch Information
and assistance aa may be necessary for
the performance of Its functions, and (2)
the Secretary of Labor shall furnish
staff, office space, office facilities and
supplies, and other necessary assistance,
facilities, and services for the Commit-
tee."
See. 8. (a) The Cltlnna' Advisory
Committee on Environmental Quality Is
terminated.
(b) Part II of Executive Order No.
11472 of May 29, 1969, as amended by
paragraphs (7) and (8) of section 4 of
Executive Order No. 11614 of March S,
1970 [set ont as a note under section 4321
of Title 42, The Public Health and Wel-
fare], Is revoked.
See. S. Jal The Advisory Council for
Minority Enterprise Is terminated.
,.(y Section 2 of Executive Order No.
11620 of October 13, 1971 [set out as a
note under section 831 of Title 10, Com-
merce and Trade]; Is revoked.
See. 4. (a) The Consumer Advisory
Council Is terminated.
(b) Executive Order No. 11083 of Feb-
ruary 24,1071 [set out as a note under
section 887d of Title 20, Education], Is
amended aa follows:
(1) The second sentence of subsection
(b)(1) of section 2 Is amended by de-
leting "(Including the Consumer Advisory
Council established In section 0 of this
order)".
(2) Section 0 Is revoked.
Bee. S. (a) The President's Advisory
Board on International Investment la
terminated.
(b) Executive Order No. 11962 of Janu-
ary 19, 1977 [Bet out as a note under sec-
tion 8107 of Title 22, Foreign Relations
and Intercourse), Is revoked.
See. «. Subsections (a), (g), (1), and
of Section 1 of Executive Order No.
8 of December 20, 1976 (set out as a
note under this section], which extended
the above advisory committees until De-
cember 81, 1978, is superseded.
Jimmy Cabtbb
ilUof
KXECUTIVK ORDER NO lZ«t9
Dec. 14, 42 7 H
TERMINATION OF A PRESIDENTIAL ADVISORY COMMITTBB
. ®7 'virtue ot the authority vested In me
by, the Constitution and statutes of the
United States of America, and as Presi-
dent of the United 8tates of America, In
order to terminate an advisory committee
In accordance with the provisions of the
Federal Advisory Committee Act (0 U.S.C.
App. I), It Is hereby ordered as follows:
_8«etlon 1. (a) The Quetlco-Superior
Committee Is terminated.
(b) Executive Order No. 11842, aa
amended. Is revoked.
See. ». Subsection (e) of Section 1 of
Executive Order No. 11048 of December
20, 1976, which extended the above ad-
visory committee until December 81, 197&
Is superseded.
Jimmt Carter
EXECUTIVE ORDER NO. 11110
Dec. 28, 1978, 44 F.R. mlttees, was superseded by Bx.Ord.No,
12?!' y oat £? .not.e. <">
-------
a 14
5- Nil
Order No. 12100 (Small Business Admin-
istration) t»et out as a note under sec-
tion 636 of Title 15, Commerce and
Tl(o)etederal Advisory Council on Occu-
pational Safety and Health; Executive
Order No. 12106 (Department of Labor).
-------
19324
Federal Register / Vol. 48, No. 83 / Thursday, April 28.1983 / Rules and Regulations
GENERAL SERVICES
ADMINISTRATION
National Archives and Records
Service
41CFR Part 101-6
Federal Advisory Committee*
Management
AGENCY: National Archives and Records
Service, General Services
Administration.
ACTION: Interim rule, with comments
invited prior to final rulemaking.
summary: This interim rule provides
administrative and interpretive
guidelines and management controls for
Federal agencies concerning the
implementation of the Federal Advisory
Committee Act, as amended (5 U.S.C.
App. I) (hereinafter "the Act'% In a
previous issue of the Federal Register,
GSA published a proposed rule on the
management of Federal advisory
committees and requested comments.
The proposed rule was intended to
provide Federal agencies with guidance
and instructions for implementing the
Act Comments received have been
considered in formulating this interim
rule, which also has been reorganized to
include new policy guidance to Federal
agencies. Comments are invited on this
interim rule prior to its publication as a
final rule.
DATES: Effective date: April 28,1983.
Comments must be received by: July 27,
1983.
ADDRESS: Comments should be
submitted to the Special Assistant to the
Archivist (NX], National Archives and
Records Service, Washington, DC 20408,
Attention: FPMR Comments.
Comments will be available for
examination at the Committee
Management Secretariat, Room G-6,9th
Street and Pennsylvania Ave., NW„
Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Ron Martinson, Special Assistant to the
Archivist, Committee Management
Secretariat (202) 523-4884.
SUPPLEMENTARY INFORMATION:
Background
' GSA's authority for administering the
Act is contained in section 7 of the Act
and Executive Order 12024, (42 FR
81445,3 CFR, 1977 Comp., p. 168). Under
Executive Order 12024, the President
delegated to the Administrator of
General Services all the functions
vested in the President by the. Act as
amended, except that of reporting
annually to the Congress, and
redelegated to the Administrator the
responsibility for the preparation of the
annual report required by section 8(c) of
the Act
Originally, the responsibility for all
matters relating to advisory committees
was placed in the Office of Management
and Budget (OMB), which issued
Circular A-63 (March 27,1974} and A-63
Transmittal Memoranda 1,4, and 5.
In light of GSA's experience in
administering the Act GSA is issuing
this interim rule, which consolidates
many features of these OMB Circulars
with existing GSA reporting
requirements. The rule also provides '
additional procedures and guidance for
Federal agencies.
Prior Comments
GSA issued an advance notice of
proposed rulemaking (44 FR 08852,
November 21,1979) and a notice of
proposed rulemaking (45 FR 55789;
August 21,1980). As a result of the
proposed rule, 23 comments were
received, and all have been carefully
considered in developing this interim
rule.
One of the major issues raised by
commenters was the extent of
applicability of the Act Some
commenters believe, as a matter of
general policy, that advisory groups
which are not formally structured, which
do not have a continuing existence, -
which meet to deal with specific issues,
and whose meetings do not constitute
an established pattern of conduct should
not be covered under the Act One
commenter asserted that the case law . .
does not preclude administrative
interpretation of the Act in limiting the
definition of "Advisory committee" and
also limiting coverage of "ad hoc
groups.'* Another commenter favored a
specific exemption for "ad hoc groups,"
based oil Marblestone, (The Coverage of
die Federal Advisory Committee Act 35
Federal Bar Journal, 119). These ' -
comments were received before the ' -
decision in National Resources Defense
Council v. Edwards, 2 GDS1BZJO70
(D.D.CL, 1981). This rule reflects our
judgment that the exclusion of certain
non-recurring meetings from the Act's
coverage is fully consistent with the
statute, its legislative history, and
judicial interpretation. The need for this
flexibility was recently recognized in
National Antt-Hunger Coalition, et al. v.
Executive Committee of the President's
Private Sector Survey on Cost Control
et aU Civil Action No. 82-3592 (DJ3.Cn
Feb. 24,1903). In wrestling with FACA's
imprecise language, the court statedr.
"The Court's task in the absence of dear
indications in the statute or its
legislative history to the contrary, must
be to achieve a common-sense
interpretation. Congressional concerns
must be accommodated in a manner that
produces a constitutional result in this
instance to leave the President with
substantial freedom to formulate policy
recommendations free from excessive
intrusion." The interim rule provides
guidance on those meetings between
Federal officials and non-Federal
individuals which do not fall within the
scope of the Act and for which a charter
and consultation with GSA is not
required.
Another issue raised was whether the
Act applies to committees "utilized" by
agencies. One commenter contended
that the proposed rule failed to
distinguish committees "established" by
agencies from those "utilized" by
agencies. That commenter also believed
that the Cox decision [Center for Auto
Safety v. Cox, 580 F.2d 689 (D.C. Cir.,
1978)) would make the Act inapplicable
to "utilized" committees. GSA has
reviewed the Cox decision and does not
agree with that interpretation.
Subsequent judicial precedent supports
GSA's position. The interim rule does
define a "utilized" committee.
In providing guidance on those groups
and meetings not subject to FACA, and
' on utilization, GSA is in general
agreement with the following
recommendation of the Administrative
Conference of the United States.
Hie most serious problems regarding the
coverage of FACA have involved the
applicability of the Act (a) to groups
convened by agencies, on an ad hoc basis,
without formal organization or structure or
continuing existence, to obtain views on
particular matters of immediate concern to
the agency, and (b) to privately established
groups whose advice is "utilized" by an
agency.
a. Uncertainty as to the applicability of
FACA to one-time or occasional meetings
between ad hoc groups and government
officials has tended to discourage useful
contacts with the private sector. It is
impractical to require such meetings to
conform with the Act's requirements
regarding chartering, advance notice, and
structure of the committee. The
Administrative Conference believes that the .
Act is not applicable to ad hoc, unstructured,
noncontinuing groups and that GSA's
guidelines should make this clear. Coverage
of such groups would not further the purposes
of the Act
b. The conference believes that the
definition of "advisory committee" is limited
to committees either established by
government action or affirmatively supported
and "utilised" by the government through
institutional arrangements which amount to
the adoption of the groups as a preferred
source of advice. GSA's guidelines should
make this clear.
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Federal Register / Vol. 48, No. 83 / Thursday, April 28, 1983 / Rules and Regulations 19325
Thus, under the interim rule, the
President or Federal official would
"utilize" a committee when that
individual recognizes, uses, or intends to
use the committee as a preferred source
of advice on specific, identified
government policy within that
individual's scope of responsibility.
Such committees, although they may be
informal, have an organizational
structure, a stable membership and,
generally, a continiflng existence. They
meet to present recommendations
developed by that committee, as
distinguished from meetings whose
attendees respond as individuals.
While this interim rule provides
guidance and examples of meetings with
groups of individuals which are not
^object to die Act agencies are
cautioned-that the group can become
subject to the Act if a pattern or "track
record" develops whereby an agency
seeks advice from the group in such a
way that it becomes a preferred source
of advice.
Questions were raised as to when all
the requirements of the Act apply to
subcommittees. One commenter
suggested a clarification of the definition
of subcommittee, so that the
establishment of subcommittees is not
used to circumvent the principles of the
Act
Another commenter, however,
suggested that a subcommittee is not.
required to consult and charter
separately if it has functions related to
the functions of the parent committee,
and reports to the parent committee. The
Court's reasoning in National Anti-
Hunger Coalition v. Executive
Committee supports the latter
recommendation by emphasizing that
the Act's requirements apply to
committees which provide advice and
recommendations directly to the
President or Federal official, and as
opposed to the parent committee.
Therefore, the requirements for
consultation and chartering of
subcommittees which appear in {101-
6.1007(a)(3) apply when a subcommittee
functions independently of the parent
committee such as reporting directly to
the President or agency official rather
than to the parent committee.
Another commenter, on behalf of a
consortium of State and local interest
groups, requested an administrative
exemption from FACA coverage for
State and local officials and their
representatives. Although this comment
has merit GSA has concluded this
exemption would require amendment of
the Act
One commenter suggests that there be
a definition of "meeting" so it would be
clear when an agency must comply with
procedures under the Act It is GSA's
position that informal meetings or
gatherings of advisory committee
members in which substantive
committee business is discussed are
subject to the provisions of the Act
GSA recognizes the administrative
difficulty in this area and has concluded
that the sponsoring agency can best
determine whether a specific gathering
of advisoiy committee members
constitutes an advisory committee
meeting. GSA believes, however, that
meetings of two or more advisory
committee members convened to gather
information or conduct research for the
committtee to analyze relevant issues
and facts, or to draft option papers for
consideration by the advisory
committee do not constutute a meeting
of the advisory committee subject to the
requirements of the Act National Anti-
Hunger Coalition v. Executive .
Committee, supra.
Several commenters raised questions
as to GSA's role in the establishment of
advisory committees. Some commenters
objected to the requirement for GSA
concurrence before an agency head can
establish, use, or renew an advisoiy
commitee under general agency
authority. -»
We recognize the sensitive nature of
this particular issue, that is, the role to
be played by GSA in the establishment
of an advisory committee. GSAis fully
aware that an agency head, not GSA,
"determines as a matter of formal
record" (after consultation with the
Administrator) that the establishment of
an advisoiy committee is "in the public
interest in connection with the
performance of duties imposed on that
agency by law."
HIowever, GSA is responsible for "all
matters relating to advisory committees"
(5 U.S.C. App. I) and a meaningful rather
than a pro forma consultation role is
necessary to fulfill this responsibility.
This conclusion is reinforced by the
language in sea 9(a)(2) of FACA, which
provides that an advisory committee
cannot be established until the
consultaion process has taken place. In
the absence of specific direction in
either FACA or its legislative history as
to what precisely is meant by the word
"consultation." it is incumbent on GSA
to determine the parameters of this
process.
We have concluded to follow the
consultative process as it has been
performed, in the beginning by OMB and
then by GSA. GSA wilt therefore,
continue the practice of giving
notification of "concurrence/
nonconcurrence" in consultations
received from agencies.
We do not view or interpret the words
"concur/nonconcur" as implying a veto
power by GSA over a determination
which properly rests in the head of
another agency. Rather, we interpret the
word "concur" as meaning that GSA
agrees the establishment of a particular
committee is in accord with the terms
and spirit of FACA Conversely, a
nonconcurrence would indicate GSA's
opinion that die establishment of a
committee is not in accord with FACA.
GSA also believes that its notification
of "concurrence/nonconcurrence" to an
agency head is a logical way to
complete the consultation process. Such
notification is GSA's means of letting
the agency head know that the
consultation process has been fulfilled.
In the final analysis, a
nonconcurrence by GSA would not
legally prevent an agency from
establishing a particular committee.
However. GSA in discharging its
oversight function of advisory
committees intends to prepare and
submit periodic reports to the President,
OMB, and the Congress. Our
nonconcurrence in any advisory
committee, therefore, would be included
in these reports.
GSA also intends to watch for
situations in which agencies might
redefine or restructure advisory
committees in such a way as to exclude
them from the Act's coverage and
requirements. GSA will analyze these
situations to determine if an agency is
elevating form over substance to
disguise an advisory committee which
should comply with the Act If this is the
case, GSA will recommend that such
groups are chartered and operate in
accordance with the Act In situations
where GSA and the sponsoring agency
cannot resolve the matter, GSA will
identify, in future reports the groups for
which a charter has been recommended
and no action has been taken.
Other commenters suggest that if GSA
had not replied to an agency
consultation letter by the end of a
specific review period, GSA •
concurrence would be implied. We have
not included this suggestion in this rule
on the grounds that it is not practical.
When GSA receives an agency
consultation letter, it gathers pertinent
information to assess the need for the
committee. Occasionally, certain
information is not available or provided
within a specified time period. To allow
a committee to come into being without
that information would not be in the
public interest This interim rule
provides that GSA will respond to an
agency consultation letter within 15
days, if possible.
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19326 Federal Register / Vol. 48, No. 83 / Thursday, April 28, 1983 / Rules and Regulations
Another commenter raised the
question of the role of the OMB budget
examiner in the consultation process.
The budget examiner's role has been
integral to the consultation process
since it began. When the function was
transferred to GSA, OMB continued to
make available die assistance of budget
examiners in the consultation process.
Several commenters objected to
language requiring that agencies
maintain complete documentation on
their advisory committees in a single
location on the basis that such a '
requirement was administratively
excessive and unreasonable. Most of the
commenters on this issue suggest that
pSA's language folio wThe language in
"the Act GSA agrees and has eased this
requirement
One commenter asked that die
regulation prohibit dual and multiple
committee memberships in which one
person serves on more than one
committee in one of more agencies. That
commenter believed that such multiple
memberships should be discouraged, in
the interest of providing access by a
broader number of citizens to
membership on advisory committees:
GSA believes that if necessary, .
agencies should deal with this issue in
their own regulations and procedures.
Some commenters suggested that a
definition of Independent Presidential
Advisory Committee" be included in
order to make clear which Presidential
advisory committees receive
administrative support from the
Administrator of General Services. GSA
agrees with this suggestion and has
included a definition of an independent
PAC. The duties of the Chairperson of
an independent PAC are set out
separately.
Several comments were made on, the
organization of the proposed rule and
the clarity of certain terms. For example,
some suggestions were offered on
alternative language to describe
"balanced membership.** GSA has
attempted to clarify in this interim rule
the'guidelines for balanced membership.
The rule describes balance in terms of
specific function to be performed by a
particular committee. This is consistent
with the language of National Anti-
hunger Coalition v. Executive
Committee, supra..
Additional Instructions
Pursuant to section 7(d) of the Act, the
Administrator after study and
consultation with die Director, Office of
Personnel* Management fit fa establish
guidelines with respect to uniform fair
rates of pay for comparable services for
members, staffs, and consultants of
advisory committees. The consultation
process with OPM has taken place.
Consistent with the intent of Congress
and the President to control the costs of
administering advisory committees, the
interim rule contains a provision which
states that unless otherwise required by
law, or when necessary to obtain
balanced membership or a particular
level of technical expertise, no member
of an advisory committee shall receive
compensation for his or her services. In
other words, unless an exception
applies, compensation shall be set at
zero.
GSA believes that a sufficient number
of citizens of aU backgrounds and
qualifications can be found to provide
advice and recommendations to the
Federal Government through voluntary
service on advisory committees.
The interim rule does provide for die
reimbursement of necessary travel
expenses and per diem, as well as a
mechanism where agencies' may engage
consultants to serve as members of
advisory committees when this is
necessary to acquire certain technical
expertise or balanced membership that -
cannot be satisfied solely through the
appointment of noncompensated
members. However, it is the
responsibility of each agency to maker a
good faith effort to meet its membership
requirements on a noncompensated
basis. GSA in its-oversight responsibility
will include membership information in
program reports and recommendations
which it prepares on Federal advisory
committees. The interim regulation
contains no changes to present methods
used by agencies regarding,
compensation of consultants or staff
under OPM and OMB procedures.
The roles have also been amended to
reflect the change in the annual agency
reporting requirements from a calendar ..
year to a fiscal year cycle brought about;
by Pub. L 97-375.
Executive Order 12291
The General Services Administration
has determined that this proposed rule
is not a major rule for purposes of
Executive Order 12291 of February 17^
1981, because it will not result in an
annual effect on the economy of $100
million or more, will not cause a major
increase in-costs to consumers or others*
and will not have significant adverse
effects. The General Services
Administration has based all
administrative decisions on this
proposed rule on adequate information
concerning the need for and
consequences of this proposed rule.
GSA has also determined that the
potential benefits to society from this
proposed rule far outweigh the potential
costs, has maximized the net benefits,
and has chosen the alternative involving
the least net cost to society.
Regulatory Flexibility Act
These regulations are not subject to
the regulatory flexibility analysis or
other requirements of 5 U.S.C. 603 and
604.
Effect on Other Directives
This rule replaces OMB Circular A-63
(March 27,1974) and A-63 Transmittal
Memoranda 1.4, and 5 which have been
rescinded by OMB.
List of Subjects in 41CFR Part 101-6
Civil rights, Government property
management Grant programs,
Intergovernmental relations. Surplus
Government property. Relocation
assistance. Real property acquisition.
Federal advisory committees.
Dated: March 21.1963.
Ray Kline.
Acting Administrator of General Services.
Accordingly, 41 CFR Part 101-6 is
amended as set forth below;
PART 101-6—{AMENDED]
Subpart 101-6.10 is added to Part 101-
6 to read as follows:
Subpart 101-6.10—federal Advisory
Committee Management
Sec.
101-6.1001 Scope.
101-6.1002 Policy.
101-6.1003 Definitions.
101-6.1004 What are examples of advisory
meetings or groups not covered by the
Act of this regulation?' -
101-6.1005 By what authority may an
advisory committee be: established?
101-6.1007 How does an agency head '
establish an advisory committee?
101-6.1009 What responsibilities does an
agency head have for an-established
advisory committee or subcommittee as
specified In {101-6.1007?
101-6.1011 What are die responsibilities of
the chairperson of an-independent
Presidential advisory committee?
101-6.1013 What are the charter filing
requirements?
101-6.1015 What advisory committee
information must be published in the
Federal Register?
101-6.1017 ' What are the dutieis of the
agency Committee Management Officer?
101-6.1019 What are the duties of the
Designated Federal Official?
101-8.1021 Flow may the public participate
in advisory committee meetings?
101-6.1023 What is the procedure for closing
an advisory committee meeting?
101-6.1025 Are minutes required at advisory
committee meetings?
101-6.1027 How are advisory committees
terminated?
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Federal Register /-Vol. 48. No! 83 / Thursday, April "28. 1983 / Rules and Regulations 19327
101-6.1029 How are advisory committees
renewed?
101-6.1031 When should an advisory
committee charter be amended?
101-6.1033 When should advisory
committee members and staff receive
compensation and expense
reimbursements for committee activities?
101-6.1035 What reports are required for
advisory committees?
Authority: Sec. 205(f) 03 Stat. 390; 40 U.S.C.
488(c); sec. 7, S UAC App. 1; and E.O.12024.
3 CFR1977 Comp. p. 158.
Subpart 101-6.10—Federal Advisory
Committee Management
} 101-6.1001 Scope.
(a) The following regulations define
the policies, establish minimum
4equiren)ents. and provide guidance to
agency management for the
establishment, operation,
administration, and duration of advisory
committees subject to the Federal
Advisory Committee Act as amended
Reporting requirements which keep the
Congress and the public informed of the
number, purpose, membership!
activities, and cost of these advisory
committees are also included.
(b) The Act and these regulations do
not apply to advisory meetings or groups
listed in § 101-6.1004.
S 101-8.1002 PoOcy.
The policy to be followed by Federal
departments, agencies, and
commissions, consistent with the
Federal Advisory Committee Act, as
amended, is that an advisory committee
shall be:
(a) Established only when it is
essential to the conduct of agency
business. Dedson criteria would include
whether committee deliberations will
result in the creation, elimination, or
change in regulations, guidelines, or
rules affecting agency business; whether
the information to be obtained is
already available through another
advisory committee or source within the
Federal Government; whether the
committee will make recommendations
resulting in significant improvements in
service or reductions in cost or whether
the committee recommendations will
provide an important additional
perspective or viewpoint impacting on
agency operations;
(b) Terminated whenever the stated
objertives of the committee have been
accomplished; the subject matter or
work of the committee has become
obsolete by the passing of time or the
assumption of the committee's main
functions by another entity within the
Federal Government; or the agency
determines that the cost of operation is
excessive in relation to the benefits
accruing to the Federal Government;
(c) Balanced in its membership in
terms of the points of view represented
and the functions to be performed; and
(d) Open to the public in Its meetings
except in those circumstances where a
closed meeting shall be determined
proper and consistent with the Act
§101-6.1003 Definitions.
"Act" means the Federal Advisory
Committee Act as amended. 5 U.S.C.
App. L
"Administrator" means the
Administrator of General Services.
"Advisory Committee" subject to the
Act means any committee, board,
commission, council, conference, panel
task force, or other similar group, or any
subcommittee or other subgroup thereof,
established by statute, or established or
utilized by the President or any agency
official for the purpose of obtaining
advice or recommendations on issues or
policies which are within the scope of
his or her responsibilities.
"Agency" has the same meaning as in
. section 551(1) of Title 5 of the United
States Code.
"Committee member" means an
individual who serves by appointment
on an advisory committee and has the
full right and obligation to participate in
the activities of the committee, including
voting on committee recommendations.
"Independent Presidential advisory
committee" means any Residential
advisory committee not assigned by the
President or the President's delegate, or
by the Congress in law, to an agency for
administrative and other support and for
which the Administrator of General
Services may provide administrative
and other support on a reimbursable
basis.
"Presidential advisory committee"
means any advisory committee which
advised the President. It may be
established by the President or by the
Congress, or used by the President in the
interest of obtaining advice or
recommendation for the President
"Secretariat" means the General
Services Administration's Committee
Management Secretariat
"Staff member" means any individual
who serves in a support capacity to an
advisory committee.
"Utilized" (or used), as referenced in
the definition of "Advisory Committee"
of this section, means a committee or
other group composed in whole or in
part of other than full-time officers or
employees of the Federal Government
with an established existence outside
the Federal Government which the
President or agency offidal(s) adopts,
such as through institutional
arrangements, as a preferred source
from which to obtain advice or
recommendations on a specific issue or
policy within the scope of his or her
responsibilities in the same manner as
that individual would obtain advice or
recommendations from an established
advisory committee.
{101-6.1004 What are examples of
advisory .meetings or groups not covered
by the Act or this regulation?
(a) Any committee composed wholly
of full-time officers or employees of the
Federal Government;
(b) Any advisory committee
specifically exempted by an Act of
Congress;
(c) Any advisory committee
established or utilized by the Central
Intelligence Agency,
(d) Any advisory committee
established or utilized by the Federal
Reserve System;
(e) The Advisory Committee on
Intergovernmental Relations;
(f) Any local civic group whose
primary function is that of rendering a
public service with respect to a Federal
program, or any State or local
committee, council, board, commissioa
or similar group established to advise or
make recommendations to State or local
officials or agencies;
(g) Any meeting initiated by the
President or one or more Federal official
for the purpose of obtaining advice or
recommendations from one individual;
(h) Except with respect to established
advisory committees:
(1) Any meeting with a group initiated
by the President or one or more Federal
offidal(s) for the purpose of exchanging
facts or information; or
(2) Any meeting initiated by a group
with the President or one or more
Federal offidal(s) for the purpose of
expressing the group's view, provided
that the President or Federal official(s)
does not use the group as a preferred
source of advice or recommendations;
(i) Any committee which is
established to perform primarily
operational as opposed to advisory
functions, except that such committee
may be covered by the Act if it becomes
primarily advisory in nature. It is die
responsibility of die administering
agency to determine whether such a
committee is primarily operational If so,
it would not fall under the requirements
of the Act and this regulation, but would
continue to be regulated under relevant
laws, subject to the direction of the
President and the review of the
appropriate legislative committees; or
(|) Any meeting initiated by a Federal
official(s) with more than one individual
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19328 Federal Register / VoL 4$~No. 83 / Thursday, April 28,' 108? / Roles and Regulations
for the purpose of obtaining the advice
of individual attendees and not for the
purpose of utilizing the group to obtain
consensus advice or recommendations.
i 101-6.1005 By what authority may an
advisory committee be estabSshed?
An advisory committee may be
established in one of four ways:
(a) By the President by Executive
Order;
(b) By law where tne Congress
specifically directs the President or an
agency to establish it:
(c) By law where the Congress
authorizes but does not direst the
President or an agency to establish 1L la
this instance, an agency head shall
follow the procedures provided in i 101-
8<1007; or
(d) By an agency under general
agency authority in Title 5 of the United
States Code or under other general
agency-authorizing law. In instance,
an agency head shaft follow the
procedures provided {1D1-8JXM7.
{101-6.1007 How does an agency head
•stabBah an advisory commute*?
(a) In establishing or using an
advisory committee, the head of on
agency shall comply with the Act and
thia subpart, and shall—
(lj Prepare a proposed charter far thg
committee which include* the
information listed in section 9(c) of the
Act and
(ZJ Submit an original and one copy of
a letter to the Administrator proposing
to establish or use, reestablish; or renew
an advisory committee. The letter shall
include die following information;
(i) An explanation of why the
committee is essential to the conduot of
agency business and in the public
interest;
. (ii) An explanation of why die
committee's functions cannot be
performed by the agency, another
existing advisory committee, or other
means such as a public hearing; and
(iii) A description of the agency's plan
to attain balanced membership. For
purposes of obtaining balance, agencies:
shall consider for membership a cross-
section of interested persons and groups
with demonstrated professional or
personal qualifications or experience to
contribute to the functions and tasks to
be performed. Ibis shall not be
construed to limit the participation of
any individual where such participation
is necessary to obtain divergent pointB
of view that are relevant to the business
of the advisory committee.The letter
shall be accompanied by two copies of
the proposed charter. .
(3) The requirements of paragraphs
(aj(l) and (a)(2) of this section shall
apply for any subcommittee of a
chartered advisory committee, whether
its members are drawn in whole or in
part from the parent advisory
committee, which functions
independentiy of the parent advisory
committee such as.by making
recommendations directiy to thelagency
rather than for consideration by the
chartered advisory committee.
(b| The Administrator will review the
proposal and notify the agency head of
concurrence or nonconcurrence within
15 days of receipt, if possible.
(c) Upon receipt of the Administrator's
notification, the agency head shall notify
the Administrator in writing, that either
(1) The advisory committee is being
established. The filing of the advisory
committee charter as specified in. $ 101-
&1013 shall be considered appropriate
written notification in this Instance. Hie
agency head shall then comply with the
provisions of § 101-6.1009 for an
established advisory committees or
(2) The advisory committee is not
being established. In thto
agency head shall also advise the
Administrator if the agency head
intends, to take any further action with
respect to the proposed advisory
committee.
S 101-6.1009 What responsffifflUes don
an agency head hav« for an estabdstied
advteory committee or suhcommat— aa
specified b{ 101-6L1007?
(a) The agency head sfcaS:
(lj File the dorter as specified fit -
§
(2) Issue agency regulaffona or
guidelines as maybe necessary to
operate and oversee the advisory
committee;
(3) File required documents;
(4) Publish required notices in. the
Federal Register;
(5) Designate a Committee
Management Officer for the agency;
(6) Appoint a Designated Federal
Official for each advisory committee;
(7) Ensure the opportunity for public
participation as. required;
(81 Ensure that detailed minutes are
kept of each advisory committee
meeting;
(9) Ensure that certain rates of pay are
justified;
(10) Submit required reports; and
(11) Terminate the advisory committee
when appropriate.
(b)The agency head should^
(1) Not later than the initial meeting of
an advisory committee, submit to
committee members, committee staff,
consultants, and appropriate agency
management personnel a written
statement of the purpose, objectives and
expected acomplishments for the
committee.
(2) Solicit in writing or in a formal
meeting at least annually the views of
the committee members on the
effectiveness, activities, and
management of the committee, including
recommendations for improvement
Comments received should be reviewed
by the agency head Or senior policy
official responsible for the committee to
determine whether improvements or
corrective action is warranted. Copies of
such recommendations should be
retained until the committee is
terminated or renewed.
(3) Involve key management personnel
of the agency whose interests are
affected by die committee in committee
meetings, including reviewing reports
and establishing agendas.
(4) Limit membership (Hi advisory
committees to 25 members for
committees with an agency-wide
mission and 12 members for committees
with a more narrowly defined function
or specialized area of interest An
agency head may authorize additional
members for a committee when the
agency head determines that such
additional members are necessary to the
function of the committee or to achieve
balanced membership.
pj] Periodically bat not less than
annually review the level of agency staff
support dedicated to> advisory
committees to ensure-that expenditures
are justified in consideration of
committee activity and the benefits
accruing to the Government
(6) Monitor the attendance and
-participation of advisory committee
members and consider replacing any
member who has missed a substantial
number of scheduled committee
meetings.
(7) Establish meeting dates end
distribute agendas and other meeting
materials well in advance.
J101-6.1011 What are the responsiblBties
of the chairperson of an Independent
Presidential advisory committee?
The Chairperson shall comply with
the Act and this regulation and shall—
(a) Determine with the Administrator
or his or her delegate the role of the
designated Federal Official;
(b) Designate a Committee
Management Officer for the committee;
and
(c) Fulfill the responsibilities of an
agency head as specified in paragraphs
(e)(1). 13), (4), (7% (8). and (10) of 8101-
6.100a.
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Federal Register / YoL 48. No. 83 / Thursday. April 28, 1963 f Rules and Regulatlona 19329
{tQI -ft.1013 What are the charter BPng
reqirtfeiitei ill?
No advisory committee may operate. ~
meet or take any action until its charter
has been filed as follows:
(a) Advisory committee established,
used, reestablished, ar renewed by an
agency. The agency head shall file—
(1) The charter with die standing
committees of die Senate and of the
House of Representatives having,
legislative Jurisdiction of die agency;
(2) A copy with the Secretariat: and
(3) A copy with the library el
Congress, Exchange and Gift Division,
Federal Documents Section, Federal
Advisory Committee Desk. Washington,
DC 2054a
. (b) Advisory committee specifically
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19330 Federal Register / Vol 48, No. B3 / Thursday, April 28. 1983 / Rules and Regulations
(1) Make a copy of the determination '
available to the public upon request; and
(2) Publish the meeting notice in the
Federal Register, including the reasons
why all or part of the meeting is closed,
citing the specified exemptions used
from the Government in the Sunshine
Act
{101-6.1025 Are minutes required at
advisory committee meetings? .
The agency head or.ln the case of an
Independent Presidential advisory
committee, the chairperson, shall ensure
that detailed minutes of each advisory
committee are kept The minutes must
include—
(a) Time, date, and place;
(bj A list of the following persons who
were present:
(1) Advisory committee members and
staff;
(2) Agency employees; and
(3) Members of the public who present
oral or written statements;
(c) An estimated number of other
members of the public present;
(d) An accurate description of each
matter discussed and the resolution, if
any, made by the committee of such
matter, and
(e) Copies of each report or other
document received or issued by the
Committee.
9101-6.1027 How are advisory
committees terminated?
Any advisory committee shall
automatically terminate not later than 2
years after it is established,
reestablished, or renewed, unless—
(a) Its duration is otherwise provided
inlaw;
(b) It is renewed; or
(c) The President or agency head
terminates it before that time.
{101-4.1029 How are advisory
committees renewed?
(a) Advisory committees established
by the President may be renewed by
appropriate action of the President and
the filing of a new charter.
(b) Advisory committees specifically
directed by law.
(1) Which terminate under the
provisions of section 14 of the Act may
be reestablished by an agency head,
provided that the agency head complies
with the provisions of S 101-6.1007; or
(2) Whose duration extends beyond 2
years shall require a new charter to be
filed every 2 years after the date of
enactment of the law establishing the
committee. If a new charter is not filed,
the committee is not terminated, but
may not meet or take any action.
(c) Advisory committees authorized
by law or established or used by an
agency: At least 30 but not more than 60
days before the committee terminates,
an agency head who intends to renew a
committee shall comply with the
provisions of 8 101-6.1007.
8101-6.1031 When should an advisory
committee charter be amended?
(a) Committees established by the
President or specifically directed by
law. When the President by Executive
order or the Congress by law changes
die authorizing language which has been
die basis for establishing an advisory
committee, the agency head or
chairperson of an independent
Presidential advisory committee shall—
(1) Amend those sections of the
current charter affected by the new
Executive order or law; and
(2) File the amended charter as
specified in 8 101-6.1013.
(b) Agency-authorized committees.
The charter of an agency-authorized
advisory committee may be amended
when an agency head determines that
the existing charter no longer accurately
reflects the goals or procedures of the
committee. Changes may-be minor, such
as revising the name of the advisory
committee, or may be major dealing "
with the basic objectives or composition
of the committee.
(1) To make a minor amendment to a
committee charter, an agency head
¦hall:
(1) Amend the charter language as
necessary, and
(ii) File the amended charter as
specified in $ 101-6.1013.
(2) To make a major amendment to a
committee charter, an agency head
shall:
(i) Amend the charter language as
necessary,
(ii) Submit the proposed amended
charter with a letter to the
Administrator requesting concurrence in
the amended language and an
explanation of why the changes are
essential and in the public interest. Hie
Administrator or his or her delegate will
give notice to the agency head of
concurrence or nonconcurrence in the
request within 15 days of receipt of the
request, if possible; and
(iii) File the amended charter as
specified in 8 101-6,1013.
(c) Renewals. Amending any existing
advisory committee charter does not
constitute renewal of the committee
under 8 101-6.1029.
8101-6.1033 When should advisory
committee members and staff receive
compensation and expense
reimbursements for committee activities?
(a) Committee members. Unless
specifically required by law, agencies
shall not compensate advisory
committee members for their service on
an advisory committee. In the
exceptional case where an agency head
is unable to meet the need for technical
expertise or the requirement for
balanced membership solely through the
appointment of noncompensated
members^ the agency head may contract
for the services of a specific consultant
who may be appointed as a member of
the advisory committee. In such a case,
the agency head shall follow the
procedures set forth in paragraph (b) of
this section. This paragraph (a) shall
apply to any committee member
appointed after May 15,1983. No
committee member shall be
compensated other than as allowed in
paragraph (b) of this section after
September 30,1983.
(b) Consultants. Prior to hiring a
consultant to an advisory committee, the
agency head must determine that the
expertise or viewpoint to be offered by
the consultant is not otherwise available
without cost to the agency. When an
agency head hires a consultant the
compensation may not exceed the
mnvimnni rate of pay authorized by 5
U.S.C. 3109. Hiring of consultants shall
be in accordance with OMB Circular A-
120 and applicable statutes, regulations,
and Executive Orders.
(c) Staff members. An agency may fix
the pay of each advisory committee staff
member at a rate of the General
Schedule, General Management
Schedule, or Senior Executive Service in
which the Staff member's position
would appropriately be placed (5 U.S.C.
Chapter 51). An agency may not fix the
pay of a staff member at a rate higher
than the daily equivalent of the
maximum rate for GS-15. unless the
agency head has determined that under
the General Schedule, General
Management Schedule, or Senior
Executive Service classification system,
the staff member's position would
appropriately be placed at a grade
higher than GS-15. This determination
must be reviewed annually by the
agency head.
(1) In establishing rates of
compensation, the agency head shall
comply with applicable statutes,
regulations, and Executive Orders.
(2) A staff member who is a Federal
employee shall serve with the
knowledge of the Designated Federal
Official and the approval of the
employee's direct supervisor. If a non-
Federal employee, the staff member
shall be appointed in accordance with
applicable agency procedures, following
consultation with die advisory
committee.
-100-
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Federal Register / Vol. 48, No. 63 / Thursday, April 28, 1983 / Rules and Regulations 19331
(d) Travel expenses. Advisory
committee members and staff members,
while engaged in the performance of
their duties away from their homes or
regular places of business, may be
allowed travel expenses, including per
diem in Heu of subsistence, as
authorized by section 5703 of title 5,
United States Code, for persons
employed intermittently in the
Government service.
(e) Special services. While performing
advisory committee duties, an advisory
committee member who is blind or deaf
or who qualifies as a handicapped
individual may be provided services by
a personal assistant for handicapped
employees if the member—
*•' (1) Qualifieras a handicapped
individual as defined by section 501 of
the Rehabilitation Act of 1973 (29 UJS.C.
794]; and
(2) Does not otherwise qualify for
assistance under 5 U.S.C. 3102 by reason
of being an employee of an agency.
(f) Noncompensated services. Nothing
in this section prevents an agency from
accepting the noncompensated or
reimbursed services of a member,
consultant or staff member of an.
advisory committee.
(g) Exclusions.—{1} Nothing in this
section prevents any person who
(without regard to his or her service
with an advisory committee) is a full-
. time Federal employee from receiving
compensation at the rate at which he or
she otherwise would be compensated as
a-full-time Federal employee.
(2) Nothing in this section prevents
any person who immediately before his
or her service with an advisory
committee was a full-time Federal
employee from receiving compensation
at the rate at which he or she was
compensated as a full-time Federal
employee.
, (3) Nothing in this section affects a
rate of pay or a limitation on a rate of
Eay that is specifically established by
iw or a rate of pay established under
the General Schedule classification and
pay system in chapter 51 and chapter 53
of title 5, United States Code.
S 101-6.1035 What reports are required
for advisory committees?
GSA will periodically issue
instructions to agencies regarding
reporting requirements and procedures.
Included in those requirements, each
agency shall file a report on a fiscal year
basis providing requested program,
financial, and membership information
to GSA. This information shall be used
by GSA for preparing program
recommendations and status reports on
advisory committee matters, and for
assisting the President in preparing and
submitting a fiscal year report to the
Congress. The membership list for each
advisory committee shall be updated
quarterly with notification furnished to
GSA of all new vacancies and
appointments during the period.
[FTl Doc. 83-11557 FUed 4-27-83; MS un]
RUMO COOE M2MS-N
-101-
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UNI7LD STATES £NY'i RON MENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
MAR 1 1382
OFFiCLOf
GENERALCOUNS
MEMORANDUM
SUBJECT:
FROM:
TO:
I. Gg-'iera 1 Pr: nciples:
The Ad^in i s-t rotor has repeatedly e-phasized that" her touchst
in dealing with {.he public is that all of EFA's constituent grojp ^
ehould enjoy "• ist favored nation" treatment. In other words, all
of us should r-. \sin open and accessible to all points of view,
without grant: :ig preferential access to any one of them. For
government to listen to the public in this manner is not just good
law, but good public policy as well.
II. "Ex Parte" Requirements
In the context of either formal or informal rule making
proceedings, conducted pursuant to the Administrative Procedure
Act be certain 1} that all written cora.TiGnts received are
entered in the rule ir.3.king docket, and 2) that a memorandum
Eurrjr:crizina any significant new factual information likely to ftffe
the final decision received daring a meeting or other conversation
is placed in th'i rule nakir-g docket.
Policy on Informal Contacts
and Meetings with Outside Groups
Robert M. Perry
General Counsel
The Administrator
The Deputy Administrator
All Assistant Administrators
All Office Directors
-------
III. Formally Designated Advisory Committees
If you are meeting with a group that has previously been
designated as an Advisory Cor^ictee under the Federal Advisory
Committee Act {"FACA"), you most conply with all FACA's provisions.
The meeting must be noticed in the Federal Register, and the
public roust be permitted to attend. The Committee membership
must meet the balanced viewpoint requirements of the Act, and it
must have been registered with the General Services Administration.
IV. Groups Not Chartered Under FACA
A. The Fe-'eral Advisory Committee Act does not forbid
meetings between EPA and members of the public, even when they are
held with clearly defined groups for example, the American
Petroleum Institute or the Nature'. Resources Defense Council),
and even when the meetings are repeated. Hc-wever, it is possible
that failure to observe proper guidelines in conducting these
meetings could cause a court to hold the Federal Advisory Committee
Act had been violated. In our opinion, the key to whether a
series of meetings with a group violates the Federal Advisory
Committee Act is whether they amount to adoption by the Agency
through institutional arrangements of that group as a preferred
source of advice. This is a test that can prove difficult to
apply in practice. However, there are a number of guidelines
that will ease (but not eliminate) that problem.
-103-
-------
1. EPA should not take the initiative in asking for
and scheduling the meetings. Instead, the meeting should
be held at the private group's request.
2« EPA should make clear that it is willing to meet with
groups of all persuasions to discuss regulatory issues at their
request.
3. All meetings with outside groups should have a
common degree of organizational structure and support. If
a given set of me-, ings has a permanent EPA coordinator, while
others don't, or it a given interest group is pla- >.-d on EPA
work groups, while others aren't, this couM be taken, as
indicating institutional adoption of the favored group as a
preferred source of advice.
4. One characteristic of an "advisory committee" may be
that agencies can place special reliance on what it says.
Conversely, when EPA meats with a group that is not an advisory
.committee, it should be prepared to show, if challenged, that
it did not accept that group's suggestions automatically, but
subjected them to critical scrutiny.
B. The Federal Advisory Ccrr.nittee Act is only aimed at
procedures that favor one group over another. If EPA observes
proper procedures; it" will be free to adopt any policy position
that it wishes consistent with the underlying statutes. It does
-104-
-------
not matter whether these views happen or don't happen to
coincide .with the views oE a given outside group, as long as
EPA has not in effect adopted that group as an advisory
committee.
B. The Federal Advisory Committee Act applies to all
meetings in connection with any subject. Assertions that no
regulatory action was pending, or that only technical subjects
were discussed, have come weight, but are not nearly sufficient
in ther.solves to eliminate legal concerns.
V. Questions
ave any questions concerning this Policy, please £•¦•¦!
ct the Office of General Counsel.
If you '
free to con*.-
-105-
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PRINCIPAL JUDICIAL CASES INTERPRETING THE FEDERAL ADVISORY COMMITTEE ACT
Food Chemical News, Inc. v. Davis, 378 F.Supp. 1048, D.C.D.C. 1974
Nader v. Baroody, 396 F.Supp. 1231, D.C.D.C. 1975
Center for Auto Safety v. Tientann, 414 F.Supp. 215, D.C.D.C. 1976
Aviation Consumer Action Project v. Washburn, 535 F.2d 101, U.S. App. D.C. 1976
Center for Auto Safety v. Cox, 580 F.2d 689, U.S. App. D.C. 1978
-106-
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APPENDIX F
Priority Regulation Systems
In Region IX (San Francisco) and Region X (Seattle),
INTRODUCTION
The first two documents in this Appendix were provided by the
Management Systems and Evaluation Branch of the Office of Policy, Tech-
nical and Resources Management, Regional Administrator's Office, EPA
Region IX (San Francisco). They detail the 5-tiered Priority Regulation
System (PRS) recently introduced in Region IX.
The third document in this Appendix was provided by the
Resource Management Branch of the Management Division, EPA Region X
(Seattle). It details the 3-tiered, SAR-based Priority Regulation Sys-
tem (PRS) recently introduced in Region X.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OATEi
SUBJECT:
PROMi
TOi
April 7, 1983
Regional Priority Regulations/^ 2nd Quarter Report
Charles W. Murray, Jr., Assistant Regional Administrator for
Policy, Technical and Resources Management
Sonia P. Crow, Regional Administrator
John C. Wise, Deputy Regional Administrator
Division/Office Directors
The purpose of this memo is to provide you with the
mid-year status report on the Regional Priority Regulations.
The following is a brief review of the steps we have taken
in managing the Regional Regulatory Review process:
December, 1982 - Requested that Divisions identify a
list of Priority Regulations.
February, 1983 - Divisions determined level of partici-
pation for individual regulations.
March, 1983 - Collected information on status of the
regional priority regulations.
Attachment A includes the five levels of participation
we have established and the roles both the divisions and my
office intend to take in working with HQ on regulation
development and review.
You will find in Attachment B a comprehensive listing
of regional priority regulations. Those regulations that have
been promulgated have been removed from the listing.
This mid-year status report on the remaining significant
regulations (Level A & B) is included as Attachment C.
The Office of Standards and Regulations has requested
a listing of regional priority regulations. I intend to
submit the Level A and B regulations already identified in
Attachment A. However, we need to assess the level of
regional participation on those which have entered the
regulation development process since October, 1982. These
are contained in Attachment D. If you wish to add any of
these to your list of priority regulations, please select
the appropriate level of participation and aesigrate staff
contacts. Forward this information directly to Joyce Gamble,
Regulation Review Coordinator, by April 12.
-108-
EPA FORM 1320-4 (REV l-7«)
-------
I appreciate your assistance and cooperation in this
endeavor. I hope that you find the information in the
attachments useful. If you have have any further comments or
other questions please contact me (x8024).
Attachments: A - Participation Levels and Roles
B - Listing of Region 9 Priority Regulations
C - Status Report on Priority Regulations
D - Proposed Regulations since September 1982
cc: Division Analysts
-109-
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ATTACHMENT A
LEVELS OF PARTICIPATION
A. Participate as member of a Working Group.
B. Receive and review drafts and support documentation frcni
Working Group, for ccnments.
C. Receive and review drafts and support documentation for
information only.
D. Receive and review rules at interim stages of development,
for caiment.
E. Receive and review rules at interim stages of development
for information only.
ROLES: REGIONAL REGULATORY STRATEGY
DIVISION
MSEB
LEVEL A
Participate in Working Group
Provide timely review
Provide status reports to MSEB
Assist in establishing information system
(work group membership, schedule, etc.)
Ensure that regional concerns are
trananitted to the appropriate parties
LEVEL B
Provide timely review
Establish information system (working
group membership, schedule, etc.)
Obtain interim products fran working
groups
LEVEL C/E
No review for cements
Route documents to Division FYI
LEVEL D
Provide timely review
Alert MSEB to emerging
issues/problems
Route documents to Divisions for canment
May re-assess level of participation
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ENVIRONMENTAL PROTECTION AGENCY
REGION 9
REGULATION CONTROL
ATTACHMENT B
WVTER DIVISION
APRIL 7, 1983
ACTION REGULATIONS
iteqory
SAR *
Title
Reg Contact
Region 9 HQ
A
1441
Water Quality Standards Regulations
Woods
Sabock
A
1846
Constr. Grants Prog. Deleqation to States
Anderson
Reeverts
B
1657
Amendment to Sec. Treatment Regulations
Anderson
Mooar
B
1900
Rev. to Gen. Pre-Treatment Reg. Reforms
Powell
Diamond
B
1866
Rev. to Gen. Pre-Treatment Reg. Removal Credit
Powell
Diamond
B
1868
Rev. to NPDES Regs.:Regulatory Reform
Kremer
Callahan
B
1604
Revision of Ocean Dunping Criteria
Yunker
Wastler
B
1802
Revisions to Water Quality Management Regulations
Kuhlman
Myers
C
1426
Effluent Guidelines for Pesticides
Wang
Jett
C
1906
Effluent Guidelines for Inorg. Chen.(Phase ii)
Wbng
Fielding
C
1751
Revision to BAT for Inorganic Chemicals
Wbng
Fielding
C
1585
Revisions to 404 Regulations
Baker
Schwartz
C
1567
Max. Cent. Lev. for Vol Org. Chem. Drnk.Wtr.Reg.
•Thurston
Cotruvo
C
1755
Revised Primary Drinking Water Regulations
Thurston
Cotruvo
C
1756
Revised Primary Drinking Water Regs.: Flouride
Thurston
Cotruvo
D
1634
Waivers from BAT for Nonconv. Pollut. 301 (g)
Kremer
Cantillino
D
1649
Effluent Guidelns for Offshore Oil &Gas Industry
Branley
Kirtoy
D
1901
Consolidated Permits NPDES Issues
Kremer
Young
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ENVIRONMENTAL PROTECTION AGENCY
REGION 9
REGULATION CONTROL
V&TER DIVISION
E = FYI ONLY
APRIL 7, 1983
Category
SAR #
Title
Reg Contact
Region 9 HO
E
1608
Compliance Extension for Innova. Tech. Inds.
Kremer
Goode
Discharge
E
1752
Revision of the Best Connv. Techn. (BCT) Cost
Kremer
Rico
Test and BCT Effluent Guidelines
E
1584
Oil Pollution Prevention Regulation
Kremer
Rico
E
1579
Discharge of Oil
Kremer
Kooyoamian
E
1428
Effluent Guidelines for Metal Finishing
Wong
Kinch
E
1415
for Organic Chemicals
Wong
Kinch
E
1406
for Petroleun Refining
Wong
Ruddy
E
1410
for Nonferrous Metal Manufacturing (Phasel)
Wong
Berlow
E
1408
for Steam Electric Fewer Plants
Wong
Telliard
E
1409
for Leather, Tanning and Finishing
Wong
Anderson
E
1419
for Pulp, Paper and Paperboard
Wong
Dellinger
E
1414
for Coal Mining
Wong
Phillips
E
1427
for Pharmaceuticals
Wong
Kirby
E
1413
for Ore Mining and Dressing Pt. Srce. Category
Wong
Jarrett
E
1411
for Paint Formulation
Wong
Dellinger
E
1411A
for Ink Formulation
Wong
Vi talis
E
1425
for Gun and Wood
Wong
Dellinger
E
1434
for Battery Manufacturing
Wong
Belefski
F
1432
for Metal Moulding and Casting (Foundries)
Wong
Dulaney
Y,
1435
for Coil Coating
Wbng
Belefski
E
1437
for Porcelain Enameling
Wong
Honaker
E
1438
for Aluniun Forming
Wbng
Goodwin
F.
1433
for Copper Forming
Wong
Pepson
E '
1431
Electric and Electronic
Wong
Pepson
E
1907
Electric and Electronic Components(Phase II)
Wong
Newbrough
E
1911
Nonferrous Metals
Wong
Berlow
E
1420
Rubber Processing
Wbng
Vi talis
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WORKSHOP
on
REGION 9 PRIORITY REGULATION SYSTE
Conducted by
Susan Sakaki, Chief, Management Systems and Evaluation Branch,
of the
Office of Policy, Technical and Resources Management
JUNE 16, 1983
RA Strategy Room
2:30-3:00 p.m.
I. Region 9 Priority Regulation System
II. Role of MSEB in Priority Reg System
III. Role of the Division Reviewers
IV. Next Actions
-113-
r.v
\o
yV
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I. Region 9 Priority Regulation System
A. April 1982 HO made several changes in the procedure
for reviewing regulations. Those that were of
significance to Region 9 were:
1. Regions would no longer participate in the formal
Red Border Review process - this would only
be conducted at the AA level
2. Regiona involvement in the process would only
occur when interest was specifically expressed
B. MSEB re-assessed the situation and process
1. Reviewed the reg development process HO*
- impact reg early
- decision to participate, to what extent
2. June 1982 memo to DDs to inform them of the
new procedures and significance - get them
thinking about the changes
C. MSEB devised strategy - MAXIMIZE impact, MINIMIZE
resource drain
1. Established the five participation level
categories CHART
2. November 1982 - senior staff agreed that we
should work toward impacting HQ policy and
reg development
3. December 1982 - DD reviewed reg agenda of
October and determined level of participation
4. February 1983 - had DD review list and name
contacts
5. March 1983 - collected information and produced
report to senior staff
* HO : SAR
Major significant goes through SC
SC - primary agency-widfe forum for resolving policy
issues
Red Border - 2 weeks
-114-
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HObS&> REGIONAL HEOULATORY 8TBATEOY
DIVISION I (VISES
LEVEL A
Participate In Working Group Anoint In Eatabllahlng Information
Byotsm
Provide Timely Review Bnauro That Regional Conoernn
Provide Staeua, Rsporte to M&EB Aro Tranemlttod to she
Appropriate Portia©
I
LEVEL B
Establish Information System
Provldo Timely Revlow
Obtain Interim Products
I
LEVEL C & E
DOCUMENTS TO DIVISION
PYI ONLY
F Y I
I
LEVEL D
EWIERSIMCI ISSUES ROUTE DOCUMENTS FOR COMMENTS
RE-ASSESS a REVIEW PE-ASSESS LEVEL of
PARTICIPATION
-115-
-------
"2CEDURES FOR REGULATORY DEVELOPMENT A W D REVIEW
AGS=EV'CY-\ft/lDE. E Pf-SCTIVE APRIL
rt
tan
ue st
%*
Formation
of.
To s k
G r du o
Begin
Develop*
mont
PI o n
Procosa Repesto for tMPRM,
Final Rulemaking
rv
Steering
Committee
Revle w
Regions, if Intorost
is INDICATED
Red
~order
Rev lew
Admin-
l.strstor
Approval
of
ANPRM
l7
Consent
Calen d a r
d
Rpvlaw
Federal
Register
™ ~~
OME3
Review
-116-
-------
Date:
Subject: PRIORITY REGULATION REVIEW - REGIGN 9
Fran: Susan Sakaki, Chief, MSEB
To:
Attached is the start Action Request (SAR) £
Please indicate the level of participation:
(A) Participate as member of a Working Group
(B) Receive and review drafts and support documentation fran
"Working Group, for cormtents.
(C) Receive and review drafts and support documentation for
information only.
(D) Receive and review rules at interim stages of development
for carrirrent.
(E) Receive and review rules at interim stages of development
for information only.
Please designate a contact person for this regulation.
Participation t^vel _J )__
Contact Person
Upcr. completion, return thic form to Joyce Gamble, MS ED (?-2) x8193
ty •
-117-
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I. Outline Region 9's Priority Regulation Tracking System
LEVELS Of PRIORITY and CODE LETTERS
A. Participate as member of a Working Group.
B. Receive and review drafts and support
documentation for Working Group, for
comments.
C. Receive and review drafts and support
documentation for information only.
D. Receive and review rules at interim stages
of development, for comment.
E. Receive and Review rules at interim stages
of development for information only.
General Information:
As of this date June 16, 1983 - 13 Priority "A" Regulations and
19 Priority "BM Regulations are identified for Region 9.
-118-
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Role Of MSEB
A. Coordinate - OSR liaison
link to front office
information collection & dissemination
B. OSR - regional priority regulation list
Steering Committee representation
link to program offices
-119-
-------
III. Role of Divisions
A. Coordination - link to MSEB
link to HQ staff and task group
inform DD
B. Documentation of comments
Verbal Comments
In a number of cases, rather than preparing written
comments on regs and guidelines, staff will make
phone contact with their program (HQ) contacts to
convey their comments verbally. This is efficient
(quicker, at any rate) and in some cases an effective
one-on-one contact with the HQ staff person. However,
the policy overview loop (OPTRM and RA) is by-passed.
The problem is riot critical. In most cases the
verbal comments are procedural, technical as opposed
to policy level.
Action - There should be some record of regional
comments. Telepone contact can be recorded on the
Record of Communications form or note pad facilitating
a copy to be sent to OPTRM. Staff should exercise
some judgment about the nature of comments phones.
Comments of policy nature should be cleared by Branch
Chiefs at a minimum.
Written Comments
All written comments, either sent by the Division
Director to HQ or sent through the Division Director
to ARA for OPTRM should have a copy sent to MSEB,
Joyce Gamble (P-2).
Policy changes to the comments submitted by staff
through ARA will copy the staff person, for purposes
of close communication.
C. Elevation of critical issues - signature protocol
Technical - DD
Policy - RA/DRA
-120-
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REG POLICY
Region 10 has for several years had a policy to participate in the
development of regulations and significant actiorrs by Assistant
Administrators' offices at Headquarters.
This policy worked well for a time, but now needs refinement. New
procedures set out in this memorandum will accommodate changes in
Headquarters' processes and ensure that reduced Region 10 resources are
used efficiently and effectively to improve the quality of EPA
regulations.
The challenges to Region 10 are unchanged from the past: Tardy
involvement in the decision process, limited regional staff, the
distraction of short-term operating priorities, the lack of
action-forcing mechanisms, a tendency to focus on narrow, technical
issues to the exclusion of a policy and management perspective, and a
perception that the Region's work has little effect in the deliberations.
This revision is to help ensure that our work on regulatory development
focuses on issues that concern the Regional Office and the programs we
administer--the impact of proposed regulations on the public, States and
local government.
The revision also provides an action-forcing mechanism in the Regional
Office to ensure early, well informed and consistent representation of
"real-world" concerns in the development of EPA regulations. This
mechanism is designed to highlight proposed regulations of concern to us,
track our participation and evaluate our effectiveness in influencing the
content of the regulations.
Effective immediately, these are the procedures we will follow:
1. The Office of Legislation and Regulatory Analysis (OLRA) is the
focal point for receiving and tracking all Headquarters
proposals for new and revised regulations. Most regulatory
proposals are sent to OLRA; however other offices receiving such
proposals are to route them directly to OLRA.
OLRA will confer with appropriate Division Directors to
determine the regional significance of each proposal, and then
with the Regional Administrator and the Deputy Regional
Administrator.
2. The Regional Administrator or the Deputy Regional Administrator
will make the judgment as to which proposed regulatory actions
warrant designation as Priority 1, Priority 2, or Not
Significant.
-121-
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Priority 1 designates only those proposals so significant as to
warrant special research or analytical activity and/or full
participation by Region 10 in an EPA task group. Priority 2. is
a proposal that has a significant impact on the Region and on
which the Region will receive all written materials, but only
occasional, informal regional expertise or other input is to be
provided, or only the development of comments during the final
internal review. Not Regionally
Significant designates a proposal of little or no critical
interest to citizens, governments, or program managers in the
four states of Region 10. Technical comments may be provided
during internal review.
It is anticipated that no more than three or four proposals will
be designated Priority 1 in any year.
3. OLRA will notify the appropriate ("lead") division,
Headquarters, and regional senior managers of the Regional
Administrator's determination of high priority issues.
OLRA will track Priority 1 [and Priority 21 actions to inform
the Regional Administrator, senior management, and others as
appropriate, of the status of each action. [Information on
Priority 2 actions will be forwarded to the appropriate
divisions.] For proposals designated as .Not Significant, OLRA
will notify the designated Headquarters contact person.
4. The Director of the lead Division will prepare a plan to assign
adequate resources to ensure effective regional analysis and/or
participation in the development process. [This plan is to be
submitted to the Regional Administrator and the Deputy Regional
Administrator.] [Resources committed to this effort will be
reported to and tracked by OLRA.]
The lead Division is responsible to inform the designated
Headquarters lead-office project manager of Region 101s interest
and the degree to which the Region will take part in the
development process.
For proposals designated Priority 1, the lead Division Director
will identify the consequences of the proposals for specific
publics, State and local government entities and Regional Office
management. The Division*Director will supervise Regional
Office work to adequately research and document these issues and
raise them in the Headquarters task group. Support will be
provided by other Divisions as appropriate.
-122-
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5. The lead Division will prepare all important Region 10 comments
on a regulatory proposal for the signature of the Regional
Administrator. (Additional technical comments may be offered in
an appendix.) Such comments are to be addressed to the
appropriate Assistant Administrator.
A copy of the comments is to be provided to the Chief,
Regulations Management Staff in the EPA Office of Standards and
Regulations (PM 223), who is responsible for ensuring that
regional concerns are considered.
6. If the Region's important comments do not result in satisfactory
response,"the Regional Administrator or the Deputy Regional
Administrator will participate in Steering Coiranittee Review of
the regulation under consideration. This determination will be
made with the advice of the lead Division Director and OLRA.
OLRA will inform the Regional Administrator and Deputy Regional
Administrator at least two weeks prior to Steering Committee
meetings on Priority 1 actions, and will tell the Regulations
Management Staff of the Region's plan to attend.
7. OLRA will prepare, with the advice of the lead Division, a
mailing list of persons and interests that may be affected by
Priority 1 for Priority 2] proposals. OLRA will notify such
entities that EPA is beginning to work on the regulation, and
shall identify a Regional Office contact to receive input from
such persons and interests.
8. On the basis of input from the lead Division, OLRA will fprovide
an accounting of resources used for regulatory development work
and] help each lead Division Director assess the effectiveness
of the Region's work to improve the final regulation.
Attached to this memorandum is the most recent status report and ranking
of regulations designated by Region 10 as significant enough to warrant
Regional participation in development. Please review this list by
February 18 to ensure that it reflects the redesignated priorities, and
notify OLRA of any changes you propose.
Attachment
-123-
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APPENDIX B
BACKGROUND ON THE REVISED REGION 10 POLICY
The following paragraphs are excerpted from memorandums from C.
Ronald Smith, new director of the EPA Office of Standards and
Regulations:
"After the Associate Administrator for Policy and Resource
Management has approved the development of a new or revised
regulation that could affect your office, you will be invited to
have a representative on the task group. If you do want to have
an impact on the regulation it is important that you get
involved at this point in the process."
"You or your Deputy should participate in Steering Committee
reviews of regulations, particularly of those that are of high
priority for your office or for the States in your Region."
"If you have major concerns about a package at Steering
Committee, you should ask to be included in the Red Border
Review."
The following perspective on Region 10 efforts to participate in
regulation development was provided by Chuck Shenk, who formerly
maintained the regional tracking system:
"Normally, we receive a regulatory package for comment about a
week before the comments are due....That due date is commonly
set one day prior to the next scheduled meeting of the task
group...the task group leader had real heartburn at the thought
of having to coordinate meetings with, and input from, an
out-of-towner, and expressed his displeasure. When I offered to
provide my input in absentia, the offer was gratefully accepted
and I was quickly forgotten in the process. I do not believe
this to be an isolated case."
-124-
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Start Action Request #
David Dougherty, Director
Office of Legislation and Regulatory Analysis
John R. Spencer
Regional Administrator
Title of Proposed
Regulation of Action:
My staff has discussed the implications of the attached Headquarters
action proposal with the Division Director(s) whose program is most
immediately affected.
The Division Director evaluated the proposal for its effect on the public,
States and local government, and EPA management in Region 10, and
recommended that it be designated as follows for involvement by Region 10.
Priority 1
Priority 2
Not Significant
The Division Director understands that designation as Priority 1 means
the proposed action is of high significance and the Region's participation
may be resource-intensive; designation as Priority 2 means the proposed
action is less significant or that our participation may be only
moderately
resource-consumptive. A Not Significant determination means that
technical comments may be provided during final review.
Concurrence:
Division Director:
(Handwritten comments, if any:)
-125-
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APPENDIX G
Sunmary Portion Of 1982 Report On EPA Rulemaking Process
Prepared For The Office Of Standards And Regulations
INTRODUCTION
During the course of the interviews conducted as a part of
this report, several Regional Regulatory Contacts (RRCs) indicated that
they had been contacted in the summer and fall of 1982 in connection
with a report on EPA rulemaking which had been ordered by the Office
of Standards and Regulations (OSR) at EPA HQ.
The following document was written and has been provided by
the Regulations Management Staff of OSR. It is only a summary of the
report mentioned above. It has been included in this report first,
because so many individuals expressed an interest in reviewing its
contents, and second, because it provides a different and valuable
perspective on the EPA rulemaking process.
-126-
-------
Part I: Expectations from the New Process
1. EFFICIENCY GOALS
o All mandated deadlines met
o Schedules set for production, review and approval
by all offices involved
o Items handled on schedule
o Findings or information at each step of the process
transmitted in clear, useable fashion to the next
2. EFFECTIVENESS GOALS
o Regulatory packages meet Administrator's expectations
o Enforceable rules result from the process
o Process is not disruptive to Agency operations
Part II: Current Problems with the System
1. EFFICIENCY PROBLEMS
o Administrative:
- Items delayed or 'lost,' which affects staff morale
and causes actions to be late, deadlines missed
- Excessive paperwork
- Inconsistent positions develop within OPRM, causing
confusion and multiple rounds of changes
- Work loads unevenly allocated, which affects quality
of products and reviews, and causes delays
- Flexibility in the process (some complained of too
much, others of too little)
o Guidance:
- Too review-oriented (rather than production-oriented)
- Lacking in key areas of the process
- Ambiguous on some important matters
-127-
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o Consistency:
- Role of Red Border as compared to Steering Committee
unclear; roles vary over time
- Fixed point in the process (R.B. and S.C.) for OPRM
comments should be set; [particular concern was
expressed about reopening or adding issues in the
background materials for the R.B. transmittal nemo
from OPRM staff to their Associate, which is closed
to program office influence or comment]
Result of these Efficiency Problems:
o Reduces cooperation
o Generates mutual oversight between/among offices
o Slows process, with no real benefits
2. EFFECTIVENESS PROBLEMS
o Review stage is too late for significant changes,
because of tine and cos.t pressures? original researchers/
writers may not he available
o Work group does not function properly; issues are not
raised early (or at all) and remain unresolved: dual
role of participants, as producers of a rule as well
as reviewers of it, is not working
o Agreements reached during the process (on all levels)
sometimes do not hold
o Insufficient oversight of work group participation and
lack of earlier involvement by policy makers
o Regional and ORD roles not assured
o No clear understanding of what a work group shouId do:
new process does not focus on development/work stage
Result of these Effectiveness Problems:
o Content of regulations not sufficiently addressed
o Cohesiveness of Agency interaction reduced
-128-
-------
o Significant changes in regulations as a result of review
not evident
o Rather than effective changes, non-productive "solutions"
to the weaknesses of the regulation development process
are pursued; e.g., genuine improvement of the work group
process is unlikely
AUTHORITY V. RESPONSIBILITY PROBLEM
o AA's have responsibi1ity for regulations, but they:
- Are tied up by contracts as well as statutory
requi rements
- Have no control over many critical actors in the
orocess
* /
- Have no mechanism for resolving differences along
the way, or means to bring staff positions in other
offices to their senior managers' attention for early
decisions
o OPRM and OLEC have authority, but:
- No responsibility or incentive to see rules promulgated
- Staff and managers have different concerns/audiences
- There's often lack of communication between staff
and policymakers; sometimes they say conflicting
things, and moving a package is difficult
- AA's are always limited by,.OPRM comments and decisions,
but the quality of OPRM staff participation varies
-129-
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Part III; Suggestions for
and Efficiency
Gu i da nce/Prooedu res
o OPRM should give clear guidance on the process,
and all in one document
I
t—1
UJ
o
I
o Paperwork clearance procedures, and how they
fit into the regulatory development process and
program budget planning, should he better defined
o Agency procedures for independent scientific/
technical review and/or statutorily required,
non-Agency review should be better integrated
into the process; one example: relationship
and timing of SAB and SAP reviews should be
be clarified
o Procedures for changing packages after R.R.
should be defined
o Clarify cleara nce/approva 1 prrx;oril ^Oth memo outlines a format for action memos.
[ do not think we should be more specific.
-------
Policy/Reviews
o Avoid duplication of effort and multiple voices
speaking for OPRM and OLEC; OMR also should
speak with a single voice
o Have AX send inquiries/changes directly to
program offices instead of going through OPRM
o RA should have concurrence authority for all
packages dealing with regulation identified
as priority items by the Region
i
H1
U>
t-1
I
o OPRM determines if packages are ready for next
stage: Put packages into review instead of
holding then because of something OPRM staff
does not like: i.e., force a formal comment.
OPRM should put comments in writing; also,
managers should be copied on memos to their
program office staff, so that managers can
check revised packages for requested changes
o Ret up a system to deal with OMB on packages
returned to EPA, on resuhmittals, and/or
on page changes made after OMR submittal
There admittedly is sometimes a problem within OPRM,
because different people are involved in the same
regulations, but from different perspectives.
OPRM must manage the flew of documents to and from
the 12th floor, for information and control purposes.
We prefer that RAs concur on behalf of their Regions, but
time does not always permit it. OPRM should clarify what
significance is attached to RA concurrence on issues the
Region identifies as important. For such issues, it may
at times he necessary to allow a few extra days for mail-
ing the packages. However, we cannot guarantee that we
will hold an action until RAs concur, because missing a
deadline could cause unreasonable delay.
Agreed. Even if issues are unresolved, OPRM should
end the formal comment in writing. Wte now do it for
all Red Rorders when for some policy problem, our
concurrence will be delayed past the deadline. Wj are
also putting greater emphasis on a formal closure to
Consent Calendar reviews.
There is a system, although not a very formal one.
Keeping it less formal allows for more flexibility.
We should ask for more specific suggestions in this
area.
-------
Timeliness
o OPRM should live up to its own deadlines for
SAR, Steering Committee and Red Border reviews
o OPRM should make a greater effort to resolve
issues quickly and not sirrply let packages sit
on analysts' desks
o OPRM should meet some deadline for S.C. closure
memos
u>
NJ
Agreed. The record is better than it used to be, but
there is still room for improvement.
Agreed. ORR and OPA management must deal with this.
RMS completes these within a week to ten days (usually
less than a week) after the end of a review. When it
is later, it is because the briefing is delayed.
-------
APPENDIX H
EPA HQ Memoranda Relating To The EPA Rulemaking Process
INTRODUCTION
The following documents are memoranda from EPA HQ. Most of
these detail the changes in the EPA rulemaking process which were ini-
tiated by former Administrator Burford with her memo of April 30, 1982,
which is set forth in this Appendix. As indicated in the introduction
to Appendix C, the reader will find these memoranda useful in understan-
ding the many complexities of the EPA rulemaking process which cannot be
reduced to graphic form.
The "open process" memo of Administrator Ruckelshaus is also inclu-
ded in this Appendix.
These memoranda appear in reverse chronological order, the latest
memoranda first.
-133-
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w
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE ADMINISTRATOR
MEMORANDUM
TO
SUBJECT: Contacts with Persons Outside the Agency
TO: All EPA Employees
When I recently appeared before the Senate Committee on
Environment and Public Works, I promised that EPA would operate
"in a fishbowl." I said, "We will attempt to communicate with
everyone from the environmentalists to those we regulate and we
will do so as openly as possible." Therefore, I believe it is
important to set out for the guidance of all EPA employees a set
of basic principles to guide our communications witn the public.
In formulating these principles I considered more stringent
restrictions on contacts with those outside the Agency than those
described below. At my request, my staff met with staff members
of the Administrative Conference of the United States to discuss
these issues. This organization is an independent agency that
develops improvements to the legal procedures by which Federal
agencies administer their programs. Based on the recommendations
of the staff members of the Administrative Conference and those of
the Office of General Counsel, I am convinced that restrictions
beyond those set out below would unnecessarily inhibit the free
flow of information and views. In adopting these flexible procedures
Z am relying on EPA employees to use their common sense and good
Judgment to conduct themselves with the openness and integrity
which alone can ensure public trust in the Agency.
General Principles
EPA will provide, in all its programs, for the fullest possible
public participation in decision-making. This requires not only
that EPA employees remain open and accessible to those representing
all points of view, but also that EPA employees responsible for
decisions take affirmative steps to seek out the views of those
who will be affected by the decisions. EPA will not accord privi-
leged status to any special interest group, nor will it accept any
recommendation without careful critical examination.
-134-
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Appointment Calendars
In order to make the public fully aware of my contacts with
Interested persons, I have directed that a copy of ay appointment
calendar for each week be placed in the Office of Public Affairs
and made available to the public at the end of the week. The
Deputy Administrator, and all Assistant Administrators, Associate
Administrators, Regional Administrators, and Staff Office Directors
shall make their appointment calendars available in a similar
manner.
Litigation and Formal Adjudication
EPA is engaged in a vide range of litigation, both enforcement
and defensive in nature* All communication with parties in litiga-
tion must be through the attorneys assigned to the case* Program
personnel who receive inquiries from parties in matters under
litigation should immediately notify the assigned attorney, and
should refer the caller to that attorney.
Formal adjudications, such as pesticide cancellation proceedings,
are governed by specific requirements concerning ex parte communi-
cations, which appear in the various EPA rules governing those
proceedings. These rules are collected and available in the Office
of General Counsel, Room 545, Vest Tower.' 1 will conduct myself
in eccordance with these rules, and I expect all EPA employees to
do the same.
Rulemaking Proceedings
Zn either formal or informal rulemaking proceedings under the
Administrative Procedure Act, EPA employees must ensure that the
basis for the Agency's decision appears in the record. Therefore,
be certain (1) that all written comments received from persons
outside the Agency (whether during or after the comment period)
are entered in the rulemaking docket, and (2) that a memorandum
summarizing any significant new factual information or argument
likely to affect the final decision received during a meeting or
other conversations is placed in the rulemaking docket.
You are encouraged to reach out as broadly as possible for
views to assist you in arriving at final rules. However, you
should do so in a manner that ensures, as far as practicable,
that final decisions are not taken on the basis of information or
arguments which have not been disclosed to members of the public
in a timely manner. This does not mean that you may not meet
with one special interest group without inviting all other Interest
groups to the same meeting, although all such groups should have
an equal opportunity to meet with EPA. It does mean, however,
that any oral communication regarding significant new factual
information or argument affecting a rule, including a meeting
with an interest group, should be summarized in writing and
placed in the rulemaking docket for the Information of all
members of the public.
-135- William D. Ruckelshaus
-------
1 Fran: OSR (EPA2151) Posted: Fri l-July-83 15:47 Sys 63 (207)
Subject: UPDATE ON REGIONAL PRIORITY REGULATIONS—Signed June 30, 1983
MEMO: Update on Regional Priority List, 6/16
SUBJECT: Update on Regional Priority Regulations
FROM: Daniel J. Fiorino, Chief
Regulation Management Staff
TO: Regional Regulatory Contacts
Early in March I invited each region to review our material on each
significant regulation that the Agency was developing and to choose
those regulations which they wished to participate in developing. I now
want to give you a progress report on what we have done with your responses
so far. I also want to let you know what we can do with them in the
future.
WHAT HAVE WE DONE WITH YOUR RESPONSES?
We have now completed tabulating your responses.
- You chose to participate in developing 171 of the 262 different
regulations that EPA is developing.
- The number of regulations chosen by each region varied frcm 10
to 76.
- You designated the 171 regulations a total of 373 times-many
regulations were designated by more than one region.
HOW WILL WE BE USING THIS DATA?
1. Request that program offices commit to full regional participation
in the work group process.
We will ask program offices to use regional expertise in preparing regulations.
For each regulation which you have said you would like to participate in
developing, we will let the head of the lead program office know what
your objective is and who is representing you. I will send you a draft
of this package in a few weeks to make sure that I am accurately reflecting
your priorities.
2. Provide you with information which supports your participation
in the work group and Steering Committee processes.
For each regulation that you are interested in we will provide you with
the names and phone numbers of the regional contacts, the work group
chairman, the RMS process manager and the OPRM lead analyst. We will
also provide you with information on issues and on status for a limited
number of regulations. To determine whether I would send you a short
-136- r
Ji ; 1983
-------
report covering contacts or a longer report covering issues, status, and
contacts, I am makirjg a distinction between "consensus (or general)
priority regulations" and "specific priority regulations" as follows:
A. Regulations designated by four or more regions are consensus priority
regulations except in either of the following circumstances:
1) Development of the regulation is nearly complete
I
2) The lead office is apparently not ccmmitted to developing
the regulation at this time.
B. In one case, a regulation was designated by three regions although
there have been clear signs of strong interest by other regions.
I think we should add this regulation, Revisions to NPDES Regulations:
Regulatory Reforms (SAR #1868), as a consensus priority regulation.
I have enclosed for your information a list of the consensus (or general)
priority regulations. You will be receiving the issues and status information
on these regulations in about two months.
* * "k *¦ * *
Thank you for your commitment to quality regulations. Please feel free
to call on me (FTS 382-5480) at any time if there is any way that we can
support you in contributing to our regulations.
Enclosure
P.SOiWAKTZ/pmp/Disk #Perf. Stnds./6-16-83/retype-6/29/83
-137-
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CONSENSUS (GENERAL) PRIORITY REGULATION LIST
Drinking Water
MCL for Volatile Organics Found in Drinking Water 1567
Revised Primary Drinking Water Regulations 1755
Air
NAA3S for Particulates 1003
New Source Review 1845
Emissions Trading Policy 1605
Water
Waivers for Nonconventional Pollutants 1634
Compliance Extension for Innovative Technology 1608
for Industrial Discharges
Effluent Guidelines for Offshore Oil and Gas 1649
Water Quality Standards Regulations 1441
Amendment to Secondary Treatment Regulations 1657
Revision of BCT Cost Test and BCT Effluent 1752b
Guidelines
Revisions to General Pretreatment Regulations:
Reforms 1900
Removal Credits 1866
Revisions to NPDES Regulations: Regulatory 1868
Reform
Revisions to 404 Regulations 1585
Sewage Sludge Disposal Guidelines 1914
Revision of Ocean Dumping Criteria 1604
-138-
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CONSENSUS (GENERAL) PRIORITY REGULATION LIST
Superfund
Designation of Hazardous Substances 1642a
Notification of Release of Hazardous Substances 1642b
and Determination of Reportable Quantities
Notification of Continuous Release of Hazardous 1642c
Substances
RGRA
Identification and Listing of Solid Waste 1191
Identification and Listing of Hazardous Wastes: 1878
Restriction of Land Disposal of Certain
Hazardous Wastes
Standards of Owner/Operators of Waste Facilities 1877
Boilers
Class Permits 1844
-139-
-------
cc: D/0 Directors
S. Ells D. Fierra M. Hohman
R. Martin E. Fitzpatrick H. Laing
D. Pickman L. Gitto
SANUEL A. SCHULHOF press release
FOR RELEASE: TUESDAY, JUNE 14, 1983
(202) 382-4355
SCHULHOF NAMED William D. Ruckelshaus, U. S. Environmental
HEAD OF
REGIONAL Protection Agency Administrator, today named
OPERATIONS
Samuel A. Schulhof to serve in the new position
of Associate Administrator for Regional Operations.
Schulhof had been serving as Deputy EPA Assistant
Administrator for Administration. "Sam will act as an
'honest broker' between the field and headquarters in
planning and operational matters," Ruckelshaus said.
"His function will be critical in giving EPA's
regional administrators greater autonomy to carry out
their mission of enforcing and upholding environmental
laws and regulations," he added.
Schulhof also will work with the agency's assistant
administrators in coordinating activities originating
in headquarters with those developed in the regions.
Ruckelshaus wants the regional administrators to be
more active in the setting of environmental objectives
than they have been in the past. This move toward
decentralization will also provide for increased
participation by states and local governments in
planning and executing programs affecting them.
Schulhof and his staff will coordinate and facilitate
this process with the regions.
Schulhof, before joining EPA in December 1981,
served as an assistant director of recruitment
and communications at ACTION, where he managed the
nationwide volunteer placement program for foreign and
domestic ACTION/Peace Corps operations. He was also
responsible for the agency's communications program.
-140-
JUN 2
n
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From March of 1979 to January 1981, he was
president and chief operating officer of Wander
Sales in West Elizabeth, Pa., a nine-store retail enterprise
in the Pittsburgh area. From 1975 to 1979, Schulhof was a
principal member of the Hay Group, a Washington, D.C., human
resourced consulting firm.
t
Schulhof served as a deputy special assistant in the White
House from April 1974 to 1975, where he directed Presidential
and Executive-level appointment recruitment activities, and
served as liaison with the federal departments and agencies and
constituency groups. From May 1973 to April 1974, he was
staff assistant to the President, responsible for management
analysis of senior federal asignments.
Schulhof also served as a Deputy Director of Special Projects
and Assistant to the Secretary of the then Department of Health,
Education and Welfare from 1971 to 1973.
He received his bachelor of science degree in business admini-
stration from C.W. Post College, Long Island University, in 1964.
Schulhof, 41, is a.native of Pennsylvania and currently resides
in Pittsburgh, Pa., with his wife Katrina, the Executive Assistant
to the Chancellor of the University of Pittsburgh.
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Symbols "I" » review anil approval requir«d
» sue attached list Cor exemptions
DOCUNOWS
Steering
Gamut tee
Associate
Actninisr.rator
for nt'HM
Science
Aiivisory
Hqarcl
90 days max.
Associate
Atkninistrators
for OPHM ii OLGC
("red horder")
(XbD «2)
OPRM
clearance*)
Chief/Deputy
Chief of
Staff
Adninistrator
2 weeks min.
2 weeks max.
2-3 weeks max.
10-50 days
I. Start Action Request (SAR)*
Tliiquirad for all rule-
makings and policy documents
subject to CKB review under
Executive Order 12291)
•
11. Development Plan (DP)
Tltequired for (a) all major
rules, (b) all significant
rules not specifically
email)tori by the Associate
Adninistrator for (TPHH, and
(c) acne policy documental
•
(approval of
chairman
required)
•
(required for
major rules)
III. Advance Notice of Proposed
Rulemakirij
•
•
•
t
IV. Proposed Rulemakinq Packages
and Policy Documents
•
(all major
and signifi-
cant rules)
•
(if sulected
for this
reviewl
•*
•
•
(except dele-
gated actions)
(except dele-
gated actions)
V. Pinal Rulenukinn Packages
and Policy Documents
•
lall major
and signifi-
cant rules)
•*
•
•
(except dele-
gated actions)
•
(except dele-
gated actions)
2) Timn luriols Cor OHB review are: proposed major; 60 days; proposed non-major: 10 days) final majori 30 daysi
final nnrt-major: 10 days.
3) After OMH review, there is a final policy clearance by the Associate Administrator for QPJH before documents
go to Chief/Deputy Chief of Staff.
-------
Actions Exempt from SAR Requirement
o All actions that the Administrator has delegated to other
Agency officials, except for amendments to PCB regulations
under TSCA 6
o All actions initiated by the Regions, including EPA
approval of state programs, sole source aquifer petitions,
and general permits
o Denials of petitions
o Technical regulations amending monitoring and testing
methods which do not increase requirements for the public
o Agency policy documents that are subject to Executive
Order 12291 review but are not published in the Federal
Register
o All actions that have been exempted from OMB review
under Executive Order 12291
Actions Exempt from Associate Administrator Review
o Actions relating to State Implementation Plans under the
Clean Air Act.
o Most routine actions that the Administrator has delegated
to other Agency officials.
o Certain other actions relating to state plans or programs
under statutes other than the Clean Air Act.
Actions Exempt from OMB Review under Executive Order 12291
Office of Air, Noise, and Radiation
\
o Area Designations or Redesignations for Air Quality Planning
Purposes
o Unconditional Approvals of Equivalent Methods for Ambient
Air Quality Monitoring
o Unconditional Approvals of State Implementation Plan (SIP)
revisions
-143-
-------
o Unconditional Approvals of NSPS and NESHAPS Authority or
PSD Delegations to States
o Deletions from the NSPS Source Categories List
o Approvals of Carbon Monoxide or NOx Waivers and Interim
Standards Under Title II of the Clean Air Act
o Approvals of Extensions of NOx Standards for Qualifying
Small Volume Manufacturers
Office of Water
o Unconditional Approval of State Programs and Delegations
of State Primacy for Underground Injection Control
o Deletions from the 307(a) List of Toxic Pollutants
o Suspensions of Toxics Testing Requirement Under NPDES
o Unconditional Approvals of Delegation of NPDES Authority
to States—including Memoranda of Agreement, Modifications
to State Programs, Regulation of Federal Facilities, and
Pretreatment Programs
o Unconditional Approvals of State Water Quality Standards
Office of Solid Waste and Emergency Response
o Unconditional Approvals of State Authorization Under RCRA
and Approvals of State Solid Waste Management Plans
o Approvals of Hazardous Waste Delisting Petitions Under RCRA
Office of Pesticides and Toxic Substances
o Unconditional approvals of TSCA Section 5 Test Marketing
Exemptions
o Unconditional Approvals of Experimental Use Permits under
FIFRA
o Pesticide Tolerances, Temporary Tolerances, Tolerance
Exemptions, and Food Additive Regulations (except those
that make an existing tolerance more stringent)
-144-
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HOW TO USE EPA'S INTERNAL REVIEW PROCESS
This fact sheet gives instructions for implementing the Agency's regulation
development procedures set out in the Administrator's April 30 memorandum on
"Procedures for Regulations Development and Review". It also lists people to
contact for further information.
Section A sketches the roles of different groups of OPRM staff in the
Agency's internal review process. Section B gives instructions specific to
particular topics covered in the Administrator's memo, and lists contacts by
reference to the sketch of OPRM in Section A.
A. OPRM ORGANIZATION FOR REGULATION REVIEW
1. OPRM Analysts
OPRM analysts participate in Task Groups and represent the Associate
Administrator for Policy and Resource Management on policy matters. When
they serve as lead OPRM analysts for specific regulations, they are respon-
sible for making recanmendations to OPRM management on the rules when they
are submitted for Steering Committee and Red Border review. Lead analysts
typically are either part of the Program Analysis Staff in the Office of
Standards and Regulations, or part of the Office of Policy Analysis, although
staff from other OPRM offices sometimes fill this role.
An OPRM lead analyst should have participated in the development and review
of any regulation that enters Agency-wide review, if you are unsure who
is or should be the lead analyst for a regulation, contact the appropriate
Regulation Management Staff (WIS) analyst listed under number 3 below.
(RMS is in the Office of Standards and Regulations.)
2. Regulation Management Staff (RMS) Review Coordinators
The PMS Review Coordinators manage the Red Border and 0MB reviews. They are
also responsible for EPA's liaison with the Federal Register. By program
area, they are:
o Thea McManus (382-2731) — OSWER, OW
o Nancy Smagin (382-2732) — QANR
o Caroline Previ (382-2733) — OPTS and others
3. RMS Analysts
Others in the Regulation Management Staff handle clearance for Steering
Committee, Red Border and 0MB review. Their primary functions are to develop
and explain procedures for regulation development; coordinate the Agency's
implementation of Executive Order 12291 and the Regulatory Flexibility Act;
and provide staff support for the Steering Committee Chairman. By program
area, they are:
-145-
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o Odelia Funke (382-2736) — all OANR except mobile source regulations
o Phil Schwartz (382-2725) — OANR (mobile source), OPP, OA, OFA,
and other programs
o Angela Tyler (382-2729) — OTS
o Jane Kelly (382-2734) — OW
o David Sahr (382-2730) — OSWER
4. Information Management Staff (IMS) Desk Officers
IMS desk officers review information requirements and submit regulatory
packages to 0MB for review under the Paperwork Reduction Act. By program
area, they are:
o Oscar Morales (382-2744) — OSWER, OPTS
o Jim Daley (382-2743) — OANR, ORD
o Chris Scoby (382-2745) — OW, OA, Administrator's Office
B. INSTRUCTION FOR EPA REGULATION DEVELOPMENT PROCEDURES
1. Requests to Initiate Rulemaking
Instructions
o Obtain blank Start Action Requests (SARs) frcm Angela Tyler
(382-2729) in 3318 Mall.
o Type information onto the SAR and obtain program AA signature.
o Submit to OPRM for approval (deliver to Angela Tyler).
For Further Information
o For questions on filling out the SAR or to determine if a SAR must
be done, contact the RMS analyst for your program area.
2. Development Plans
Instructions
o To sufcmit the Development Plan for Agency review, follow the
steps below under "Steering Conrnittee".
For Further Information
o To determine whether a Development Plan is necessary, or to obtain
guidance on its contents, contact the RMS analyst for your program
area.
-146-
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3.
Task Groups
Instructions
o To set up a task group, use the Task Group Invitation Form, available
frcm Angela Tyler (382-2729). OPRM will distribute this form with
the SAR.
4. Regional Participation
Instructions
o For items on the Regional Priority List (or others that are of major
interest to Regional Offices), you should solicit Regional comments
on draft documents well in advance of Steering Ccranittee or Red
Border review.
For Further Information
o To obtain copies of the Regional Priority List, or to suggest ways
to improve Regional participation, contact Phil Schwartz (382-2725).
5. Steering Ccnroittee (S.C.)
Instructions
o Arrange and clear all requests for Steering Committee review through
S.C. representative in the office of your Assistant Administrator.
o Submit 25 copies of the package to Angela Tyler (382-2729), 3318 Mall,
by COB two weeks before you want the meeting. (Steering Committee
meets only on Tuesdays and Fridays.)
o Include in your package:
1) AA signed action memo to the Associate Administrator
for Policy and Resource Management
2) Copy of preamble and rule
3) Copy of any inportant background documents
o Stamp all materials "Draft". ,
For'Further Information:
o To determine whether S.C. review is necessary, or whether that
review should be through S.C. meeting or Consent Calendar procedures,
contact the RMS analyst for your program area.
6. Associate Administrator (Red Border) Review
Instructions
o Arrange a Red Border review through your office's Steering Committee
representat ive.
o Call the appropriate RMS Review Coordinator at least one day before
you plan to submit a package for Red Border review.
-147-
-------
o If a regulation went through a S.C. review, and it is on the Regional
Priority List, submit 25 copies and the original of the package to
the RMS Review Coordinator for your program area, in roam 3318M.
o If S.C. reviewed the regulation but it is not on the Regional
Priority List, submit 16 copies and the original to RMS (3318M).
o If no S.C. review occured because the regulation is "minor", submit
11 copies and the original to RMS (3318M).
o In all cases, include a Typesetting Request form (EPA form #2340-15)
with your package. Make sure it is signed by the AA's administrative
officer to authorize payment for Federal Register printing costs.
o For all regulations subject to 0MB review under Executive Order 12291
include 3 copies of an SF 83 form. The AA or S.C. representative
should sign as the "Approving Official."
For Further Information
o To obtain more information on the SF 83, and the status of an RB
package, contact the RMS Review Coordinator for your program area.
o To obtain information en OPRM concerns with the substance of the
package, contact your lead OPRM Analyst, or the RMS analyst for
your program area.
7. Clearance for OMB Review
Instructions
o For Executive Order 12291 review, submit an SF 83 form, as explained
above under "Associate Administrator Review", at the time the package
enters Red Border review.
o For Paperwork Reduction Act review, submit an SF 83 and the supporting
statement to the IMS Desk Officer for your program area. Contact the
desk officer to determine the appropriate time to submit the package.
Note: The two OMB reviews—required under Executive Order 12291
and the Paperwork Reduction Act—are separate reviews. Each requires
its own SF 83 form.
For Further Information
o For information on the status of an OMB review under Executive Order
12291 (e.g. scheduled release date, actual release date), contact the
RMS Review Coordinator for your program area.
o For questions concerning OMB review under the Paperwork Reduction
Act, oontact the IMS desk officers for your program area.
o For information on what OPRM considers in reconmending that a regulation
is ready for OMB review, contact the RMS analyst for your program area.
-148-
-------
8. Arranging Federal Register Publication
Instruction
o All regulations, notices, etc., to be published in the Federal Register
must include the EPA Typesetting Request form (described above under
"Associate Administrator Review").
o When appropriate, notices must comply with the Federal Register's
Thesaurus and incorporation by reference requirements.
For Further Information
o For further information on Federal Register requirements, contact
the RMS Review Coordinator for your program area.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL 61982
OFFICE OF
POLICY AND RESOURCE MANAGEMENT
MEMORANDUM
SUBJECT: Additional Guidance on the Administrator's April 30th
Memorandum on Regulation Development and Review
This memorandum provides background and interpretation
of certain aspects of the revised regulation review proce-
dures. Please distribute this to appropriate staff within
your offices. It gives additional details on four topics:
o Criteria for classifying a regulation
as Major, Significant or Minor
o Steering Committee review
o Development Plans
o OPRM's quarterly reports on implementing
the procedures.
The Administrator's memo establishes a three-part classifi-
cation scheme—Major, Significant and Minor. The main purpose
of this scheme is to set priorities for internal review and
analysis. Classification has the following effects:
o Major regulations have a Development Plan and go through
Steering Committee review before Red Border. Major
regulations are required by Executive Order 12291 to
have a Regulatory Impact Analysis and are also subject
to a longer 0MB review.
FROM:
for Policy and Resource Management
Steering Committee Members
TO:
Classifying Regulatory Actions
-150-
-------
o significant regulations normally require a Development
Plan and go through Steering Committee review before
Red Border.
o Minor regulations — Development Plans and Steering
Committee review are unnecessary.
The definition of Major in Executive Order 12291 is relatively
clear and the Agency has experience interpreting it. The distinc-
tion between Significant and Minor is not as clear. The key
concept to remember is that this distinction determines whether
or not a regulation is subject to Agency-wide review through the
Steering Committee. We should use the following rules of thumb
in making the distinction:
o Does the regulation raise issues that fall within the
scientific or technical competence of another office in
the Agency? For example, ORD should have an opportunity
to review any regulations that present substantial scien-
tific or technical issues.
o Does the regulation affect the regulations or program
administration of any other program or Region?
o Does the regulation make policy choices that have national
environmental, economic or resource implications?
If the answer to any of the above questions is yes, the
regulation would be Significant and Steering Committee review
would be appropriate. Steering Committee review may be waived
on a case-by-case basis for regulatory relief items specifically
designated for revision by the President's Task Force.
The following kinds of regulations will typically be Minor:
o Technical modifications to existing regulations
that have negligible policy implications.
o Procedural actions of no interest to Regions or
other program offices.
OPRM will classify new regulatory actions when the lead
office prepares a Start Action Request (SAR). OPRM will also
review existing regulatory actions in the Regulatory Agenda In
order to classify them. All new regulatory actions that did not
appear in the April 1982 Regulatory Agenda should have a SAR.
Regulatory packages may enter internal review if (1) the regula-
tion appeared in the April Agenda or (2) the program has prepared
a SAR. I may also request SARs and Development Plans for a few
of the regulations that appeared in the April Agenda.
-151-
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Steering Committee Review
Steering Committee review will consist of an actual meeting
or a Consent Calendar review. The Chairman of the Steering
Committee will resolve any disagreements concerning which kind
of review is appropriate. Steering Committee will be a forum to
discuss not only policy choices but also the general quality of
EPA rulemaking packages. We may also discuss specific concerns
of any offices, e.g., regulations that have been subject to
undue delays in the review process.
Consent Calendar is the alternative to a Steering Committee
meeting. It consists of a two-week review period during which
programs should submit comments and written concurrences directly
to the Office of Standards and Regulations.
Consent Calendar is appropriate when the following conditions
are met:
o The regulation is not classified as Major;
o The task group has reviewed the most recent draft of the
regulatory package (through a meeting if possible); and
o None of the task group members have any issues they
think would .benefit from a Steering Committee discussion..
If any Steering Committee representative requests a meeting
after a regulation enters Consent Calendar review, OSR will schedule
a meeting.
In many cases, a program office may wish to request a meeting
rather than Consent Calendar review because a meeting may be more
expeditious. The time required for a meeting is normally two weeks
(like Consent Calendar), but a meeting also has the following
advantages:
o The Chairman of the Steering Committee will become
familiar with the package before it enters Red Border
review. If the Steering Committee approves the package,
Red Border review will go more smoothly.
o The Chairman of the Steering Committee may authorize
concurrent Red Border/OMB review at the meeting. No
such authorization will be made during Consent Calendar.
o If a package enters Consent Calendar, and then a
Steering Committee member requests a meeting, the
time may extend beyond two weeks.
o Programs may request extensions to the Consent Calendar
deadline whereas a meeting is the end of Steering Committee
review and is unlikely to be postponed.
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Development Plans
If a regulation is classified as Major or Significant,
the lead program office should submit a Development Plan (unless
waived) to the Steering Committtee within 60 days of the date
the Start Action Request is approved. The Chairman of the Steering
Committee, after hearing the recommendations of the other Steering
Committee representatives, will approve the plan or recommend
additional work at the meeting. Development Plans for Major
regulations must also be approved by the Associate Administrator
for Policy and Resource Management through a two-week Red Border
review.
A brief description of the contents of a Development Plan
is attached to this memo.
OPRM Quarterly Reports
OPRM will prepare quarterly reports to the Administrator,
with copies to the Assistant Administrators, on how the proce-
dures are working. These reports will:
o Track OPRM and OLEC performance in meeting internal
review deadlines.
o Identify new SARs or Development Plans that have been
submitted to OPRM.
o Track program performance in meeting their schedules set
in SARs, Development Plans, or elsewhere.
OPRM will prepare these reports as part of the quarterly
accountability reports. These reports should identify any problems
in implementing the procedures, either in the programs or in OPRM
and OLEC.
******
I hope this guidance will be useful for you and your program
staffs. I expect we may want to modify it as we gain experience
under the new procedures.
cc: Chief and Deputy Chief of Staff
Regional Regulatory Contacts
Attachment
-153-
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DEVELOPMENT PLANS
The development plan should be brief—5 to 10 pages—and should set forth the
basic policy and management framework for developing the regulation. The
following information should be included in the development plan:
o PURPOSE
This states the need for the regulation (i.e. statutory requirement,
court order, program requirement, regulatory relief) and identifies
its goals and objectives.
o ISSUES
This gives a brief discussion of the legal, technical, economic, social
and political issues the Agency will consider in developing the regulation.
o ALTERNATIVES
This lists the alternative standards or strategies the Agency will
examine to fulfill the goals and objectives of the rulemaking.
O CLASSIFICATION AND ANALYSIS
This states whether the regulation is major or significant and briefly
explains why. It also considers whether any supporting analyses should
be performed. The following analyses should be discussed in this section:
Regulatory Flexibility Analysis, Economic Inpact Analysis, Regulatory
Impact Analysis (for major regulations only), Environmental Inpact
Statement or Information Inpact Analysis.
O SCHEDULE
This identifies the tasks that will be performed—frcm the first work
group meeting to the final promulgation of the regulation—and milestones
frcm each task.
O INTERNAL AND EXTERNAL PARTICIPATION
This lists the Agency offices—including EPA Regional Offices—that will
participate in developing the rule and identifies the work group chair-
person. It also lists other agencies, States, and others that will be
involved in developing the regulation and briefly describes their involve-
ment. A list of the work group members should be attached to the plan.
O RESOURCES
This estimates the resources that will be necessary to develop the regulation.
Both Agency personnel and contract resources should be included.
O EXPECTED REACTION OF OUTSIDE GROUPS
This briefly discusses the anticipated public reaction to the regulation
(i.e. Congress, 0MB, industry, environmental groups, and others).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
May 25, 1982
OFFICE OF
POLICY ANO RESOURCE MANAGEMENT
MEMORANDUM
SUBJECT: Steering Committee Consent Calendar Reviews
FROM: Angela Tyler ^'jh. 5
Regulation Management Staff
TO: Regional Regulatory Contacts
We are now using Clearance Sheets for Steering Committee
Consent Calendar reviews. Please have your Regional Administrator
or Deputy Regional Administrator sign the sheet If possible. The
review will last two weeks and hopefully you will have' ample
time to comment. However, if you find that you will have comments
but will not have them ready before the deadline please contact
me at 8-382-2729.
J?t05f4>s
A \
w
% PW5*0
-155-
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*««c
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
HAY 25 1982
OFFICE OF
POLICY AND RESOURCE MANAGEMENT
MEMORANDUM
SUBJECT: Notice of Steering Committee Consent Calendar
Review
FROM: Lewis S.W. Crampton, Acting
Office of Standards and Reg
Steering Committee Members
Regional Regulatory Contacts
ing Director /
Regulations *
TO:
I am circulating the attached regulation package on the
Proposed Amendments to the Freedom of Information Act Regulations
for a Consent Calendar review by the Steering Committee. Under
a Consent Calendar review, the Steering Committee does not meet
formally, but has the opportunity to review the regulation
package and submit written comments to the Office of Standards
and Regulations.
Under the new procedures prescribed in the Administrator's
April 30th memorandum on "Procedures for Regulation Development
and Review," the Steering Committee will normally be the only
opportunity for all offices to review and comment on regulation
packages, because the Red Border review will usually include
only the two Associate Administrators. If, however, your
Assistant or Regional Administrator has major concerns with a
regulation packa'ge, you may request that he or she take part
in the formal Red Border review. ' Even if your office does not
participate formally in a Red Border review, OSR will distribute
information copies of regulation packages that have gone through
a Steering Committee review at the time that package enters Red
Border review.
-156-
-------
To ensure that the'Consent Calendar provides an effective
mechanism for review, we are requesting a response — with or
without comments — from each Steering Committee member on
each package distributed for review. Please respond in one
^f the following ways:
o If you have written comments, please submit them
to Angela Tyler, Regulation Management Staff, in
OSR (room 3318) by the deadline on the "Consent
Calendar Clearance Sheet."
o If you have no written comments please, either sign
the Clearance Sheet and return it to Angela or
notify her-at 382-2729 that you have no comments.
The Clearance Sheet will list a contact from the originating
office. You or your staff should contact this person with
questions or to communicate minor comments or suggestions.
OSR will forward copies of all written comments to the
originating office and to the lead OPRN analyst working on the
regulation. We will require the originating office to respond
to any comments before the regulation enters Red Border review.
Attachment
-157-
-------
-
Ti UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
UJ
' WASHINGTON, D.C. 20460
OFFICE OF
POLICY AND RESOURCE MANAGEMENT
Steering Committee - CONSENT CALENDAR
Clearance Sheet
Date: May 25, 1982
SUBJECT: Proposed Amendments to the Freedom of Information
Act Regulations
SAR ~: 1737
Originating Office: Office of General Counsel
Contact: Charles Breece, 426-9450
Deadline for Response: Wednesday, June 9, 1982
Office
Symbol
No Comments
Comments
Attached
Signature
OGC
OANR
OEC
ORD
OPTS
OW
OSWER
OA
REGIONS
I-X
Please return to Angela Tyler (Rm. 3318) by the deadline. If
you have no comments and wish to respond by telephone please
contact Angela at 382-2729. If your office has major issues
or concerns and you would like OPRM to include your Assistant
Administrator in the Red Border review, please request that in
your written comments.
-158-
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*> \
i WJ
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR 3 0 1982
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: Procedures for Regulation Development and Review
TO: Associate Administrator
Assistant Administrators
Regional Administrators
Staff Office Directors
Special Assistants
This memorandum revises a number of the Agency's current
rulemaking procedures. These revisions are designed to:
(1) improve senior management oversight of policy develop-
ment, (2) better integrate our regulatory programs, and
(3) make more efficient use of the Agency's resources.
Consistent and predictable procedures are crucial to
a well-managed rulemaking process. The development and
review of regulations is a responsibility shared by many
Agency offices. Assistant Administrators have lead respon-
sibility for developing and implementing regulations within
their own program areas. The Office of Policy and Resource
Management (OPRM) and Office of Legal and Enforcement Counsel
(OLEC) are responsible for reviewing the rules for policy
and legal issues and seeing that they meet Agency and external
requirements. We must have procedures to coordinate all of
these contributions if we are to produce effective, efficient,
and well-reasoned regulations.
In presenting the revised procedures, this memorandum
will cover the following topics:
1. Approval of requests to initiate rulemaking
2. Development plans
3. Task groups for developing or reviewing
regulations
-159-
-------
4. Regional participation
5. Composition and role of the Steering Committee
6. Review by the Associate Administrators
7. SAB Review
8. Clearance for OMB review
9. The form and content of action memoranda
10. Review by the Administrator's Office
11. Accountability for meeting deadlines
The revised procedures outlined here will apply to all
regulations and related policy documents to be published in
the Federal Register or submitted to OMB for review under
Executive Order 12291.
1. Approvals of Requests to Initiate Rulemaking
In the past, lead offices have prepared a Start Action
Notice when they initiated work on a regulation. Its purpose
was to notify senior management and others that an office was
beginning to develop or amend a regulation and to invite parti-
cipation on a work group.
I now want to make this notification an approval document,
rather than just an information notice. Before starting work
on a regulation, the lead office will file a Start Action Request
(SAR) form with the Office of Standards and Regulations, which
will then submit the SAR to the Associate Administrator for
Policy and Resource Management for approval. OPRM normally
will respond to Start Action Requests within two weeks.
A program office must have the approval of the OPRM Associate
Administrator before it can begin working on a regulation. No
action can enter internal Agency review without a Start Action
Request. A number of regulatory actions are already underway,
but not yet ready for proposal. I will consider each of these
through the regulatory program reviews that I will conduct with
each Assistant Administrator.
OPRM is designing a SAR form. The form will provide
information on the purpose and need for the action, statutory
authority, classification, and a statement of the consequences
of not taking action, as well as certain other categories of
information.
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I want us to follow these new start action procedures
for all rulemaking subject to OMB review under Executive
Order 12291, except for State Implementation Plans, pesticide
tolerances, and other routine, high-volume categories of
actions, such as approvals of State plans in the various
programs. This will ensure that resources devoted to deve-
loping new regulations and revising existing ones will
adequately reflect my policy and budgeting priorities. If
you are not sure whether a SAR is necessary for a particular
action or class of actions, Check with the Director of the
Standards and Regulations Division.
2. Development Plans
When OPRM approves a Start Action Request, it will assign,
in consultation with the lead program office, a priority classi-
fication to the regulation. OPRM will assign one of three
classifications to the regulation:
o "Major"—if it is likely to meet the definition
in Section One of Executive Order 12291; or
o "Significant"—if there are important economic
consequences for the public, important public
health issues, inter-media issues, effects on
the administration or operation of other offices
or broad geographic effects; or
o "Minor"—if it meets none of the above conditions.
If a regulation is classed as major or significant, the
lead program office will have to submit a development plan to
the Steering Committee within 60 days of the approval of the
Start Action Request. This plan should discuss issues, alter-
natives, scheduling, internal and outside participation,
analytical needs, and expected reactions of outside groups.
OPRM will issue more detailed guidelines on the appropriate
contents and organization of development plans.
A development plan may not be necessary for all significant
regulations (e.g. regulatory relief items designated for expedited
action or regulations with inter-program or inter-media issues).
OPRM may waive the development plan requirement at the SAR approval
stage where appropriate. Minor regulations do not require a
development plan.
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The Chairman of the Steering Committee must approve all
development plans for significant regulations. In addition,
development plans for major regulations must have the approval
of the Associate Administrator for Policy and Resource Management.
3. Task Groups for Developing and Revising Regulations
The Agency will continue to rely on staff-level working
groups for developing regulations. Especially for regulations
that involve the expertise or interest of other offices, the lead
office should obtain broad participation from throughout the
Agency. However, all regulations, even the most minor, should
have representatives from OPRM and OLEC on the task group.
Lead offices will chair these work groups. OPRM members
of task groups will not only represent that office but will also
give status reports on the task group's progress and performance
to the Associate Administrator for Policy and Resource Management.
They will report on whether the rulemaking is on schedule, causes
of delays, whether important issues are raised and identified by
the task group, and on unresolved issues that remain as the rule
approaches Steering Committee or Associate Administrator review.
All members of the task group must have the opportunity to
review and comment on drafts of regulations and policy actions
before they are scheduled for a Steering Committee review.
4. Regional Participation
Recently several Regional Administrators have expressed
concern about the lack of effective Regional involvement in
regulation development and review. In particular, they are
concerned that regulations with a direct effect on their offices
or State agencies reach me without their review and recommen-
dations.
To improve Regional participation, I want to take the
following steps:
o OPRM will consider use of a lead Region system for
regulation development and review that is similar
to the lead region system used in the Agency's budget
process. This system would enable one Regional Office
to represent the common interests of the others. OSR
and the lead office will designate the lead region at
the time of the Start Action Request.
o The Office of Standards and Regulations will update its
April 1981 "Regional Priority List" that identifies
regulations of major interest and importance to the
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Regions generally and to specific Regional Offices.
OSR should use this to determine which regulations
require the recommendations of the Regional Admini-
strators. Lead offices should make special efforts
to solicit Regional involvement and comments for
these regulations.
o The Director of the Office of Standards and Regulations,
will make sure that Regional and State issues and con-
cerns are addressed in Steering Committee reviews of
regulations.
5. Composition and Role of the Steering Committee
The Steering Committee wil serve as the primary Agency-
wide forum for identifying issues, recommending their resolution,
and integrating Agency policies and resources regarding regulations.
The Steering Committee will serve as an advisory body for
the Director of the Office of Standards and Regulations — who
will chair it — and the Associate Administrator for OPRM. It
will serve as the place where all Agency offices can review and
make recommendations on regulatory actions. The Steering Committee
typically will review development plans as well as proposed and
final significant and major rules. The Steering Committee will
also advise the Director of OSR on procedural matters affecting
Agency rulemaking.
To improve its effectiveness, I want to elevate the level
of representation on the Steering Committee to make it directly
representative of and accountable to the Assistant and Associate
Administrators. The Steering Committee's core membership will
consist of the Deputy Assistant Administrator (or other designee
of equivalent status) from each of the four program offices,
ORD, OA, the Deputy General Counsel, and the Deputy Associate
Administrator for Enforcement Policy or his representative.
Regional or Deputy Regional Administrators also will participate
in Steering Committee review of regulations of high priority
for Regional Offices or State environmental officials. When you
designate a Steering Committee representative, bear in mind that
this person will be speaking for your office on key policy and
resource issues arising from regulatory actions.
To help the Steering Committee meet its expanded responsi-
bilities, I would like us to observe the following rules:
o We will allow a minimum of two weeks review time
(rather than the current one week) for Steering
Committee packages. This applies to reviews
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conducted through both formal meetings and the
Consent Calendar.
o The Assistant Administrator from the initiating
office must approve regulation packages submitted
for Steering Committee review.
o The Chairman of the Steering Committee may refuse
to schedule a Steering Committee review for any
package that does not meet established minimum
standards of quality or reflect an adequate con-
sideration of key issues or alternatives.
o The package must include an action memorandum signed
by the Assistant Administrator (contents are described
below) and any important support documents. The
action memo should be addressed to the Associate
Administrator for Policy and Resource Management.
0 OSR will prepare a summary of important issues and
comments arising from the Steering Committee review.
This will provide a record of comments and expected
revisions, and it will accompany the package through
the Associates' review.
. The Steering Committee should resolve as many issues as
possible and clearly identify remaining issues before the regula-
tion goes to the Associate Administrators for their review.
6. Review by the Associate Administrators
Elevating the status and representation of the Steering
Committee will allow us to eliminate the current practice of
conducting full Red Border reviews. Formal senior management
review will be limited to the two Associate Administrators.
In those cases where a program office has major problems with
another program's Steering Committee package, that program
office's Assistant Administrator will also take part in Red
Border review. Other offices will receive a "for information"
copy of the package as well as the program memo summarizing
changes since Steering Committee. The shorter time period
required for these reviews will compensate for the longer
period for Steering Committee reviews.
1 will ask for the review and recommendations of the two
Associate Administrators on all actions covered by this memorandum.
OPRM will determine whether or not such documents are suitable
for my final review and/or signature. To the extent possible,
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review by the Associate Administrators should not exceed two
weeks and response time will be tracked in the Agency's Accounta-
bility System. OANR will continue to manage the special review
of SIP revisions.
7. Science Advisory Board Review
The Science Advisory Board (SAB) will have a greater role in
reviewing the scientific data and analysis used to support regulatory
decisions than in the past. The Science Advisor and the Director
of the Office of Standards and Regulation will be responsible
for identifying significant regulatory actions for SAB review.
Based on these recommendations, or requests from Assistant or
Associate Administrators, the Deputy Administrator will select
15-25 proposed rules for review each year.. To avoid delays,
reviews will occur as early in the process as possible — as
soon as the scientific evidence is assembled and evaluated —
and should be completed within 90 days.
In addition to the scientific data and analysis they have
developed, the work group will prepare and present a scientific
issues staff paper. The SAB will critique these documents and
put its findings "and suggestions in writing. The work group will
make appropriate revisions before Steering Committee review. A.
second SAB review may occur before promulgation if significant
new scientific data become available after the initial review.
As in the past, the SAB's concern will not be to approve or
disapprove any standard. Its review will focus on the scientific
bases for the standard, and its conclusions will be advisory.
8. Clearance for OMB Review
The approval of the Associate Administrator for Policy and
Resource Management is required for all Agency documents (except
SIPs) before they are sent to OMB for review under the Executive
Order. OPRM will not approve a document for transmittal to OMB
unless it has completed the internal concurrence process. OPRM
will continue to have complete responsibility for managing the
OMB reviews, including SIP actions.
After the OMB review is complete, OPRM will send the document
to me for my signature. If OMB has commented on the rule, or
released it as "inconsistent with the Executive Order," the
revised action memo must clearly explain the problem and how you
have dealt with it. If all issues are not fully resolved, the
action memo should explain why you think I should sign the docu-
ment before the differences are fully resolved.
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9. The Form and Content of Action Memoranda
Each decision document must have an action memorandum from
the principal of the originating office. The action memorandum
submitted to the Steering Committee should be addressed to the
Associate Administrator for Policy and Resource Management. It
should then be revised as necessary (to reflect Red Border and
OMB comments) and addressed to me. The action memorandum should
cover the following subjects:
— Statement of purpose and background for the action;
— Definition and discussion of key policy, legal, technical
or other issues;
— Discussion of alternative courses of action considered
and available to the Agency;
— Description of the recommended alternative and a
justification;
— Brief summary of important environmental, economic,
energy, reporting and other effects of the action
(including effects on small entities);
— Description of the expected reactions of outside groups;
— Summary of OMB comments (if any) and your resolution or
response; and
— Recommended course of action.
Action memoranda should be clear and succinct. OPRM will have
authority to return action memoranda and policy documents that are
not of acceptable quality.
10. Review by the Administrator's Office
The Chief of Staff and Deputy Chief of Staff in the Office of
the Administrator are my key staff aides for regulation review and
coordination. They have final responsibility for reviewing all
documents covered by this memorandum before they reach me for my
action. Working closely with OPRM and OLEC, they will provide me
with assessments of these documents based on my direction and
objectives. Either of them has authority to return documents to
the Associate Administrators or to the lead program office for
changes or additional information.
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11. Accountability for Meeting Deadlines
Your schedule should allow enough time for Steering Committee
and Associate Administrators' reviews. It should also allow time
for the OMB review and, after that is complete, at least a full
week for my review and signature. The review process is important
and it will not be shortened unreasonably or eliminated because a
program office has fallen behind schedule. OPRM, OLCE, and AX also
have an obligation to respond to program office submissions in a
timely manner.
OPRM will prepare quarterly reports on each program office's
success in meeting scheduling commitments, completing the neces-
sary analytical work, and raising key issues to senior management
for resolution. When an unresolved issue threatens an office's
ability to submit a document for review on schedule, the lead
office should call on the Chairrffan of the Steering Committee
to help resolve it, either through a Steering Committee meeting
or through a decision memorandum submitted to senior management.
I would like all of these new procedures to take effect
immediately. They will allow us to combine effective central
oversight of policy development and still produce regulatory
documents within reasonable time periods.
Anne M. Gorsuch
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•J*0ST*r*r
/ *
P M 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 7 1982
OFFICE OF
POLICY ANO RESOURCE MANAGEMENT
MEMORANDUM
SUBJECT: Clarification of Procedure for Regional Participation
The purpose of this memorandum is to clarify the procedure
for regional participation on regulatory Red Border packages now
that the Office of Regional Liaison has been abolished. The Agency
typically conducts two kinds of Red Border reviews — regulations
and related actions and delegations and reorganizations. Until
recently, the Office of Regional Liaison coordinated regional
participation on both Red Border reviews. Now, however, two
separate offices are managing these reviews.
I want to clarify the sources of the Red Borders generated
at headquarters.
Regulatory and related Red Borders are coordinated
by the Office of Standards and Regulations. Please
call Nancy Smagin, Thea McManus or Angela Tyler of
my staff to coordinate receipt of verbal or written
comments. They can be reached by phone at FTS/382-2731
or 382-2732, and by mail at PM-223.
Delegations and reorganization Red Borders are coordi-
nated by the Office of Management and Organization
Systems, and you should send your comments and concur-
rences on these packages directly to that office.
Robert Callens is the contact person in that office.
You can reach him by phone at FTS/755-0855, or by
mail at PM-213. Any comments or concurrence memos
should be sent to him.
FROM:
TO:
Regulation Management Staff (PM-223)
Regulatory Development Contacts
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We will try to provide the regions with realistic deadlines
to respond to regulatory Red Borders that are of concern to you.
Some times there are pressures on deadlines forcing shorter review
periods them we would want, but we will make as many regional
reviews as close to three weeks in length as possible.
I have one suggestion in the interest of efficiency. If you
are simply concurring without comment, no formal response is
necessary. Once we are past the deadline, and we have not received
a response, we will assume your office's concurrence with comment.
If, however, you are concurring with comment, nonconcurring, or if
you need additional time to respond, please let my staff know as
early in the review period as possible and we will make every effort
to allow additional time.
Because of the poor quality of magnafax copies, please send
a copy of any comments through pouch mail, as well, to serve as
the official copy. Please let any concerned parties in your office
know of these new handling instructions.
cc: Robert Callem, Office of Management and Organization Systems
Lewis Crampton
Allen Jennings
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A rs
szzj
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 11 1981
OFFICE OF
POLICY AND RESOURCE MANAGEMENT
MEMORANDUM
SUBJECT: Transfer of Steering Committee and Red Border
Activities
FROM: Daniel J. Fiorino, Chi^^yjuM^
Regulation Management Staff
TO: Regional Regulatory Development Contacts
As you probably know, the Office of Regional Liaison at EPA
headquarters has been dissolved. It will be necessary for the
Regulation Management Staff in the Office of Standards and
Regulations to take responsibility for Steering Committee and
Red Border reviews formerly provided by ORL. For now we will
perform these functions as the Office of Regional Liaison did.
When we receive regulations for review, we will notify the
lead regions to let them know that the package is coming, what
the due date will be, and who the contact is. All packages will
continue to be mailed to you on the same day we receive them
for processing. You should continue to fnagnafax and then mail
your comments on packages. Mail tihem directly to Angela Tyler,
who can be reached at 382-2729. She and I will ensure that
your comments are given to the lead program office for
consideration. If you have certain problems with a package
or need an extension, please contact Angela or me directly.
cc: Allen Jennings
Lewis Crampton-
Steering Committee Core Members
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APPENDIX I
An Approach To Public Participation
INTRODUCTION
The following document is a suranary of an interview conducted
as part of this report with Robert Gunther, intergovernmental Liaison
Office, EPA Region III (Philadelphia). It concerns an experijnental pub-
lic outreach program developed by Region III with assistance from the
Regulations Management Staff at OSR. The reader may wish to compare
Mr. Gunther's description of the program with the case cited in the
introduction to Appendix E in order to better understand both the pro-
visions of the Federal Advisory Committee Act (FACA) and how those re-
quirements were met in designing this public outreach program. These
materials are meant to provide a broader explanation for Index V-8.
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An Approach to Public Participation
SUMMARY OF INTERVIEW OF ROBERT GUNTHER,
OIL, EPA REGION III (PHILADELPHIA)
This is a summary of an interview of Mr. Robert Gunther, of
the Office of intergovernmental Liaison in the Regional Administrator's
Office of Region in. This interview relates to the work Mr. Gunther
and others at Region III have done on an experimental program called
"Regional Outreach," which was begun under (and at the request of)
Mr. Peter Bibko, the former Regional Administrator of Region III.
"Regional Outreach" while considered a vehicle for "regulatory
reform" is in fact is much more closely related to the concept of increas-
ing public participation and feedback in EPA operations.
The program is essentially structured as follows. First, the
IGL office has set up a series of informal meetings which are held at
various locations in the Region, and not always in State capitals. These
meetings last 3-4 hours each and a compact group of meetings are held one
after another during the course of two days. Attendance at a meeting is
by invitation frcm the Regional Office. Invitations are sent out to re-
cognized local leaders in the following areas: local government, environ-
mental groups, industry, and media. These individuals are usually given
a week to ten days in which to respond to the invitation and submit writ-
ten forms outlining their recarcnendations, inquiries and concerns on EPA
regulations, guidelines and procedures. Each group is met with separately
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and each group meeting is normally limited to 15-20 people. In short,
these meetings are both open and controlled. They are open in the sense
that members of the public can sit in and observe and that local media is
encouraged to cover the meetings. They are controlled in the sense that
EPA is meeting with only the leadership of the various groups and the
agenda (while largely determined by the interests of the local invitees)
is established beforehand and is strictly adhered to. An important ele-
ment in setting up such meetings has been the use of Congressional Offi-
ces to make arrangements and issue invitations.
As noted, invitees' comments are usually of two types: recom-
mendations and requests for information. Requests for information are
forwarded to the appropriate office and a commitment is made to get an
almost immediate response. Recommendations are of course already writ-
ten down, but may be expanded on during the course of meetings. The
Regional staff collects these, reviews them, and sends copies to Regional
and HQ offices. Recamtendations are to be considered within a certain
period of time and written responses answering the concern and stating
what EPA intends to do, and why, are sent back to the original maker of
the recommendation. Such feedback is of undoubted importance because
it brings matters to the attention of EPA offices and results in favor-
able publicity and increased Congressional support.
The "Regional Outreach" program also provides Regional program
managers with personal exposure to public environmental concerns, which
can heighten sensitivity to regulatory issues, as well as others. Norm-
ally, the meetings are chaired by the ARA or DRA. An effort is made to
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have the DDs or Branch Chiefs frati Air, Waste, Water and Emergency Ser-
vices present during the meetings. A representative frati HQ OSR is also
present at each meeting. In Mr. Gunther's opinion, this exposure to
local public opinion leaders has already had significant positive impact
at least as far down in the organization as the Branch Chief level, on
the attention given to local and State concerns, the willingness to make
changes in the operation of programs, and general responsiveness. These
changes may be reinforced by the desire of environmental groups and in-
dustry, follcwing such meetings, to establish a dialog on specific issues
with EPA offices.
The public response to this initiative has also been positive.
Media coverage, both print and electronic, has been excellent and the
publicity favorable. Most local leaders have expressed an interest in
scheduling repeat meetings, perhaps on an annual basis. In terms of the
type of information received, Mr. Gunther noted that industry was norm-
ally the group most interested in specific regulatory matters (and usu-
ally in already-existing regulations). Generally, State Implementation
Plans, the EPA's oversight role, time constraints on the public caiment
period following publication of "Federal Register" notices, lack of EPA
response to serious local inquiries, and similar concerns received the
most attention frcra all three basic groups.
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APPENDIX J
List Of Persons Interviewed For Report On EPA Rulemaking
STATE VIEWPOINTS
Anthony D. Cortese, Commissioner, State of Massachusetts Department of
Environmental Quality & Engineering
Reginald LaRosa, Director, Water Division, State of Vermont Agency for
Environmental Conservation
David Fierra, Former Deputy Commissioner, state of Massachusetts Depart-
ment of Environmental Quality & Engineering, now Acting
Division Director for Water, Region I
EPA HQ OFFICE OF STANDARDS & REGULATIONS
C. Ronald Smith, Director, OSR
Phil Schwartz, Regulations Management Staff, OSR
Odelia Funke, Regulations Management Staff, OSR
Thea McManus, Regulations Management Staff, OSR
Angela Tyler, Regulations Management Staff, OSR
EPA REGIONS II THROUGH X
Barbara Pastalove, Planning & Evaluation Branch under the ARA for
Policy & Management, Region II (New York)
Eileen Burroughs, Analysis & Services Section under the ARA for Policy
& Management, Region III (Philadelphia)
Robert Gunther, Intergovernmental Liaison Office, Region III (Philadelphia)
Tan Niesmith, Policy & Program Evaluation Branch under the ARA for
Policy & Management, Region IV (Atlanta)
Michele Rocawich, Records Management Section of the Planning & Management
Division, Region V (Chicago)
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Melvin Warnock, Resource Management Branch under the ARA for Management,
Region VI (Dallas)
Angela Romano, Administrative Services Branch under the ARA for Policy
& Management, Region VII (Kansas City)
Terry Anderson, Management Systems & Analysis Branch under the ARA for
Policy & Management, Region VIII (Denver)
Joyce Gamble, Management Systems & Evaluation Branch of the Office of
Policy, Technical and Resource Management, Region IX
(San Francisco)
Martha Burke, Resource Management Branch of the Management Division,
Region X (Seattle)
Lori Cohen, Resource Management Branch of the Management Division,
Region X (Seattle)
REGION I
Paul Keough, Former Acting Regional Administrator, Acting Deputy Regional
Administrator
Louis Gitto, Director, Administrative Services Division
Robert Martin, Regional Counsel
David Fierra, Acting Director, water Division
Merrill Hohman, Director, Waste Management Division
Harley Laing, Director, Air Division
Lester Sutton, Former Regional Administrator
Elizabeth Higgins, Specialist, Intergovernmental Liaison Office
Pamela Hill, Attorney, Region Counsel's Office
Ira Leighton, Section Chief for RCRA: NH, VT, MA, Hazardous Waste Division
Nancy Lewis, Regional Regulatory Contact, Planning & Evaluation Branch
of the Administrative Services Division
Kevin McSweeney, Branch Chief, Water Quality, Water Division
Linda Murphy, Branch Chief, State Air Programs, Air Division
Marcia Spink, Environmental Protection Specialist, Air Division
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GLOSSARY OF TERMS
ADVANCE NOTICE OF
PROPOSED RULEMAKING
(ANPRM):
AEVISORY BOARDS
(SCIENTIFIC AEVIS-
ORY BOARD, etc.):
CLOSURE MEMO:
DECISION PACKAGE:
The ANPRM is the first public notice in the "Federal
Register" which EPA gives after initiating development
of a regulation. An ANPRM is usually, but not neces-
sarily, prepared and published. It is short and con-
ceptual and usually appears within 10 months of the
start of rulemaking, i.e. the SAR.
Several review panels composed of scientists frcm out-
side EPA who selectively review proposed regulations and
studies supporting than for scientific accuracy and va-
lidity.
A memorandum prepared by OPRM's Office of Standards and
Regulations which summarizes the results of the Steering
Committee meeting, any contents of non-attending Regions,
the Steering Committee's disposition of these and any
special requests for participation on "Red Border" Review.
The draft of a development plan, proposed or final rule,
and suport documents, which are prepared by the Work
Group and the HQ Lead Program Office for internal EPA
review.
DEVELOPMENT PLAN
(DP):
DEVELOPMENT PLAN
PHASE:
DIVISIONS:
EXTERNAL GROUPS:
FEDERAL AEVISORY
COMMITTEE ACT
(FACA):
A document which must be prepared by the Lead Program
Office within 60 days of the approval of the SAR. The
plan briefly sets out the objectives, analytic framework,
resource needs, budget, and schedule for the rule to be
developed.
The second phase in the development of an EPA regulation.
It is preceded by the Internal Notification Phase and
followed by the Proposal Phase. During the Development
Plan Phase the Work Group and HQ Lead Program Office
outline the concept and scope of the regulatory proposal
and budget its development.
Those Offices within a Region which administer and imple-
ment the programs of a given media area. Divisions may
also occasionally be referred to as Regional Media Offices
.or Regional Program Offices.
Those organizations and/or individuals outside of EPA,
such as: Congressional Committees, other Federal Agencies
and Offices, the States, State Officials, Associations of
State Officials, industry or business associations and
representatives, environmental groups, local government,
the media, members of the public, etc.
5 U.S.C. App. I. A 1972 Act of Congress, as amended in
1976 and 1980, requiring that various committees, boards,
councils, commissions and similar groups which meet with
or advise Federal Agencies or Officials (and are composed
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FINAL NOTICE OF
RULEMAKING
(FNR):
FINAL RULE PHASE:
"FORMAL" INPUT,
CONTACT, REVIEW
OR PROCESS:
HQ LEAD PROGRAM
OFFICE:
HQ PROGRAM OFFICES;
"INFORMAL" INPUT,
CONTACT, REVIEW OR
PROCESS:
INTERNAL NOTIFICA-
TION PHASE:
wholly or in part of non-Federal employees) be formally
chartered, keep records, and operate in a manner open to
the general public.
The FNR must be published in the "Federal Register" when
EPA completes the development of a regulation. It sets
out the full text of the final version of the regulation.
It normally appears within 52 months of the start of
rulemaking, i.e. the SAR. The effective date is speci-
fied in the FNR.
The fourth and final phase in the development of an EPA
regulation. It follows the Internal Notification, Devel-
opment Plan and Proposal Phases. During the Final Rule
Phase, public comment is considered, the regulation is
revised and is then published in the "Federal Register"
as a final rule and promulgated.
Those Regional regulatory activities and relations with
EPA HQ, especially the Office of Standards and Regula-
tions within OPRM, which occur within the established
system of and standard operating procedures for Regional
participation in the development and review of EPA regu-
lations. In particular, those Regional regulatory acti-
vities related to membership on a Work Group, and the
commenting process of Steering Ccranittee or "Red Border"
Reviews.
That program Office at EPA HQ which undertakes to develop
or change a regulation. The work of planning, drafting,
budgeting and releasing a proposed regulation is done by,
managed by, or contracted for by the HQ Lead Program Of-
fice. The Lead Office may also convene and manage a Work
Group, which helps prepare the regulatory package.
The Office for Water (OW), the Office for Solid Waste and
Emergency Response (OSWER), the Office for Air, Noise and
Radiation (QANR), and the Office for Pesticides and Toxic
Substances (OPTS) constitute the four Program Offices at
EPA HQ. The phrase "Other HQ Program Offices" refers to
those Program Offices which do not serve as the Lead Of-
fice for the development of a given regulation.
Those Regional regulatory activities and relations with
EPA HQ or other Regions or the States which occur out-
side of the "formal" processes and may take place at any
tine during the development and review of a proposed reg-
ulation. in particular, those direct staff-level Region-
al regulatory relations between HQ Program offices and
Regional Divisions or between the Divisions of two or
more Regions, or between Regional Divisions and State
Environmental Agencies.
The first phase in the development of an EPA regulation.
It is followed by the Development Plan, Proposal and Final
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"LEAD REGION":
"MAJOR" REGULATION:
"MINOR" REGULATION:
"NOMINAL INVOLVE-
MENT" REGULATIONS
LIST (NIL):
"NON-MAJOR"
REGULATION:
NOTICE OF PROPOSED
RULEMAKING
(NPRM):
OLEC:
OMB:
Rule Phases. During the Internal Notification Phase the
Start Action Request (SAR) is filed and approved and a
Work Group is formed.
A phrase describing several loosely-defined concepts, all
of which involve a Region which is particularly interested
in or affected by a proposed regulation taking part in
the development of that regulation and representing other
Regions' viewpoints with respect to that regulation.
The standard definition of this term derives frcm Execu-
tive Order #12291. It refers to a rule which will have
an economic impact of S100 million or more.
This is a term which originated in EPA and is used only
with respect to EPA regulations. The standard definition
is a regulation which is neither "major" nor "significant".
Typically, such regulations will involve technical modifi-
cations to existing regulations that have negligible policy
implications; or procedural actions of no interest to the
Regions or Other HQ Program Offices.
A list of those EPA regulations which are of less than
considerable interest to Region I. The Region will make
no special efforts to influence the development of these
regulations. This term originates with this report.
^The standard definition of this term derives frcm Execu-
tive Order #12291. It refers to a rule which will have
less than $100 million in economic impact.
The NPRM is mandatory and either the first or second
public notice EPA gives of a developing regulations (de-
pending whether or not an ANPRM was published). The NPFM
is usually quite detailed, set out the full text of the
proposed rule and its background and solicits-public com-
ment. It must be published in the "Federal Register" and
usually appears there within 28 months of the start of
rulemaking, i.e. the Start Action Request (SAR).
Office of Legal and Enforcement Counsel. Formerly one of
the two Associate Administratorships at EPA HQ. The reor-
ganization currently underway has eliminated OLEC and re-
placed it with two offices: General Counsel and "Enforce-
ment Counsel". The latter of these two has yet to be
officially titled, though the distinction is clear. Cur-
rent information indicates that both Counsel will assume
the duties of the AA of OLEC with respect to "Red Border"
Review, so that three approvals, (AA of OPRM, General
Counsel, and "Enforcement Counsel") rather than two, (AA
of CPRM and AA of OLEC) will be required.
Office of Management and Budget. A Cabinet-level office
within the Executive Office of the President.
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OPRM:
OSR:
PROJECT OFFICER:
PROPOSAL PHASE:
PRS:
Office for Policy and Resource Management. One of the
two Associate Administratorships at EPA HQ. The parent
office of the Office of Standards and Regulations (OSR).
Office of Standards and Regulations. An office within
CPRM. OSR coordinates the regulatory development and
review processes at EPA and handles the OMB review pro-
cess for EPA regulations.
The staff member frcm a HQ Lead Program Office who is in
charge of the development of a given regulation.
The third phase in the development of an EPA regulation.
It is preceded by the Internal Notification and Develop-
ment Plan Phases and is followed by the Final Rule Phase.
During the Proposal Phase data is gathered and studied,
the regulation is drafted and reviewed and is then pub-
lished in the "Federal Register" as a proposed regulation.
"Priority Regulation System." This term originates with
this report. As used herein, it refers to a method by
which a Region selects certain regulations for special
attention.
"RED BORDER" REVIEW: A policy review of a proposed regulation by senior-level
management. Only the AA's of OPRM and OLEC must give
their approval to a proposed regulation during "Red Bor-
der" Review. Typically, they are the only senior managers
who participate, but others may be part of the delibera-
tions. All other Offices and the Regions must have re-
quested participation during the course of Steering Can-
mi ttee deliberations. As indicated above with the Glos-
sary entry for "OLEC", that Office has new been abolished.
It will probably be replaced with two offices: General
Counsel and "Enforcement Counsel," though the latter has
yet to be officially titled. Current information indica-
tes that both Counsel will assume the "Red Border" Review
duties of the former AA of OLEC. Thus, three approvals,
(AA of CPRM, General Counsel and "Enforcement Counsel")
rather than two, (AA of OPRM and AA of OLEC) will now be
required during "Red Border" Review.
REGIONAL PRIORITY The RPL is an annual survey of the Regions undertaken by
LIST (RPL): the EPA HQ Office of Standards & Regulations (OSR) in
CPRM. OSR sends a complete list of all EPA regulations
currently under development and requests that the Regions
complete and return a form indicating which regulations
are of priority interest to each of them. OSR compiles
the results and informs the Regions as to which Regions
are interested in which regulations. The RPL may also
' be used by OSR to provide a Region with advance notice
of Start Action Requests (SARs) SARs for those for those
regulations in an area of Regional interest.
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REGIONAL REGULATORY The individual in each of the ten EPA Regions who is
CONTACT (RRC): assigned to receive regulatory packages from OSR and who
coordinates both formal Regional reviews of a proposed
regulation and formal Regional regulatory communications
with EPA B2, especially the Office of Standards and Regu-
lations (OSR) in QPFM.
REGULATORY PACKAGES:
RMS:
START ACTION REQUEST
(SAR):
"SIGNIFICANT"
REGULATION:
STEERING COMMITTEE
(SC):
STEERING COMMITTEE
"CONSENT CALENDAR":
"TOP PRIORITY"
REGULATIONS LIST
(TPL):
WORK GROUP:
The interim drafts of a regulation (together with support-
ing studies and documentation) which the HQ Lead Program
Office submits for Steering Committee, "Red Border" and
other reviews. Broadly defined, this term includes a
Development Plan and its attachments.
Regulations Management Staff. Those individuals within
OSR who coordinate regulatory development and review, OMB
reviews, and Regional participation in the processes.
The document a HQ Lead Program Office must file with the
Office of Standards and Regulations (OSR) in OPRM and
which must be approved by the AA of OPRM in order to be-
gin the development of most EPA regulations.
This is a term which originated in EPA and is used only
with respect to EPA regulations. A proposed regulation
which raises issues that fall under the scientific or
technical expertise of two or more Offices in EPA; or
affects the regulations or program administration of
another Program Office or Region; or makes policy choices
that have national envirormental, economic or resource
implications.
The Steering Committee meeting is THE point at which com-
ments by all EPA Offices and Regions are considered. The
SC is composed of one representative each from: HQ Program,
Administrative, and R&D Offices; OPRM; OLEC; and any Reg-
ions which wish to participate.
An alternative method of obtaining SC approval. The
"Consent Calendar" may be used only if: the rule is non-
major; there are no controversial issues; and the entire
Work Group agrees to this review option. "Consent Calen-
dar" regulatory packages are distributed and approval is
obtained by the mere passage of time (typically two weeks)
without objection.
A list of those EPA regulations which are of great inter-
est to Region I and the development of which the Region
will attempt to influence through formal and informal
input. This term originates with this report.
An ongoing group formed by the HQ Lead Program Office
shortly after approval of the Start Action Request (SAR),
whose members may be drawn from the staffs of the HQ Lead
Program Office, Other HQ Program offices, EPA Regional
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Offices and State Environmental Agencies. A Work Group
is responsible for drafting and developing a given reg-
ulation.
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