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Report Contributors:	Patrick Gilbride
Allison Dutton
Todd Goldman
Luke Stolz
Abbreviations
ADP
Action Development Process
CFR
Code of Federal Regulations
EO
Executive Order
EPA
U.S. Environmental Protection Agency
IG Act
Inspector General Act of 1978
NOx
Nitrogen Oxides
NPRM
Notice of Proposed Rulemaking
OIG
Office of Inspector General
OIRA
Office of Information and Regulatory Affairs (in Office of Management and Budget)
OMB
Office of Management and Budget
PM
Particulate Matter
U.S.C.
United States Code
Cover Photo: Typical glider kit configuration. (EPA photo)
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
20-P-0047
December 5, 2019
Why We Did This Project
We received a congressional
request raising concerns about
the U.S. Environmental
Protection Agency's (EPA's)
development of the Notice of
Proposed Rulemaking, "Repeal
of Emission Requirements for
Glider Vehicles, Glider Engines,
and Glider Kits." We sought to
determine whether the EPA
acted in compliance with
Executive Orders (EOs) 12866
and 13045 in developing the
proposed rulemaking.
The EPA's "Greenhouse Gas
Emissions and Fuel Efficiency
Standards for Medium- and
Heavy-Duty Engines and
Vehicles—Phase 2," finalized in
October 2016, included
emission requirements and
production limits for glider
vehicles. A glider kit is a chassis
for a tractor-trailer; it becomes a
glider vehicle when an engine,
transmission and/or rear axle
are added. After receiving a
petition from the glider industry
in July 2017, the EPA proposed
to rescind the portion of the
Phase 2 rule affecting gliders
(proposed Glider Repeal Rule)
in November 2017.
This report addresses the
following:
•	Compliance with the law.
•	Improving air quality.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBPOSTINGS@epa.gov.
List of OIG reports.
EPA Failed to Develop Required Cost and Benefit
Analyses and to Assess Air Quality Impacts on
Children's Health for Proposed Glider Repeal Rule
Allowing Used Engines in Heavy-Duty Trucks
What We Found
The EPA did not comply with requirements of
EOs 12866 and 13045 when developing and issuing
the proposed Glider Repeal Rule. Additionally, the
EPA did not follow its principal rulemaking guidance—
the Action Development Process—in developing the
proposed Glider Repeal Rule, nor did it meet Federal
Records Act requirements.
The EPA's actions
regarding the
proposed Glider
Repeal Rule lacked
transparency and
deprived the public of
required information.
EO 12866 directs that significant regulatory actions be submitted to the Office of
Management and Budget's Office of Information and Regulatory Affairs (OIRA)
for review. Any substantive OIRA-recommended changes to the regulatory action
must be publicly identified. A regulatory action deemed "economically significant"
under EO 12866 triggers an assessment of (1) the anticipated costs and benefits
and (2) any reasonable alternatives. EO 13045 applies to "economically
significant" regulatory actions that "concern an environmental health or safety risk
that an agency has reason to believe may disproportionately affect children." This
order requires an evaluation of the environmental health risks to children and an
explanation of why the planned regulation is preferable to alternatives.
According to EPA managers and officials, then-EPA Administrator Scott Pruitt
directed that the Glider Repeal Rule be promulgated as quickly as possible. The
proposed repeal rule would relieve industry of compliance requirements of the
Phase 2 rule, which set emissions standards and production limits for gliders
beginning January 1, 2018. EPA officials were aware that available information
indicated the proposed Glider Repeal Rule was "economically significant;"
however, Pruitt directed the Office of Air and Radiation to develop the proposed
rule without conducting the analyses required by the EOs. The lack of analyses
caused the public to not be informed of the proposed rule's benefits, costs,
potential alternatives and impacts on children's health during the public comment
period. As of the date of this report, the proposed Glider Repeal Rule is listed on
the EPA's Fall 2019 Regulatory Agenda as "economically significant."
Recommendations and Planned Agency Corrective Actions
We recommend that the agency identify for the public the substantive change to
the proposed rule made at the suggestion or recommendation of OIRA, conduct
the required analyses prior to finalizing the repeal, provide the public a means to
comment on the analyses supporting the rulemaking, and document the
decisions made. The agency provided sufficient planned corrective actions for
two recommendations, while one recommendation remains unresolved.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
December 5, 2019
MEMORANDUM
SUBJECT: EPA Failed to Develop Required Cost and Benefit Analyses and to Assess
Air Quality Impacts on Children's Health for Proposed Glider Repeal Rule Allowing
Used Engines in Heavy-Duty Trucks
Report No. 20-P-0047
FROM: Charles J. Sheehan, Acting Inspector General
TO:	Anne Idsal, Acting Assistant Administrator
Office of Air and Radiation
Brittany Bolen, Associate Administrator for Policy
This is a report on the subject audit conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). The project number for this audit was
OA&E-FY19-0053. This report contains findings that describe the problems the OIG has identified and
corrective actions that OIG recommends. This report represents the opinion of the OIG and does not
necessarily represent the final EPA position. Final determination on matters in this report will be made
by EPA managers in accordance with established audit resolution procedures.
The Office of Air and Radiation has primary responsibility for the subjects covered in this audit.
In accordance with EPA Manual 2750, acceptable corrective actions and milestone dates were provided
in response to Recommendations 1 and 2 in this report. These recommendations are considered
resolved and no final response is required. However, if you submit a response, it will be posted on the
OIG's website, along with our memorandum commenting on your response. Your response should be
provided as an Adobe PDF file that complies with the accessibility requirements of Section 508 of the
Rehabilitation Act of 1973, as amended. The final response should not contain data that you do not want
to be released to the public; if your response contains such data, you should identify the data for
redaction or removal along with corresponding justification.
Action Required
One recommendation in this report—Recommendation 3—is unresolved. In accordance with EPA
Manual 2750, the resolution process begins immediately with the issuance of this report. We are
requesting a meeting within 30 days between the Associate Deputy Administrator and the OIG's
Assistant Inspector General for Audit and Evaluation. If resolution is still not reached, the Associate
Deputy Administrator is required to complete and submit a dispute resolution request to the Chief
Financial Officer.
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We will post this report to our website at www.epa.gov/oig.
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EPA Failed to Develop Required Cost and Benefit	20-P-0047
Analyses and to Assess Air Quality Impacts on
Children's Health for Proposed Glider Repeal Rule
Allowing Used Engines in Heavy-Duty Trucks
Table of C
Chapters
1	Introduction	 1
Purpose	 1
Background	 1
Responsible Offices		8
Scope and Methodology		8
2	EPA Failed to Develop Required Cost and Benefit Analyses
and to Assess Impacts to Children's Health for the
Proposed Glider Repeal Rule		10
No Benefit, Cost, Alternatives or Children's Health Analyses
Completed for Proposed Glider Repeal Rule		10
Day Before Signature, Rule Downgraded from
Economically Significant to Significant		11
ADP Not Followed for Proposed Glider Repeal Rule		13
Current Status of Proposed Glider Repeal Rule		14
EPA's Rationale for Not Completing Required Analyses		15
EPA Failed to Meet Federal Records Act Requirements		15
Conclusion	 16
Recommendations	 16
Agency Response and OIG Evaluation		17
Status of Recommendations and Potential Monetary Benefits		18
Appendices
A Comprehensive Timeline of Significant Dates for
Proposed Glider Repeal Rule		19
B April 2019 Letter to OMB Requesting Information		21
C Office of Air and Radiation's Initial Response to Draft Report		25
D Office of Air and Radiation's Revised Response to Draft Report		28
E Distribution		31
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Chapter 1
Introduction
Purpose
The U.S Environmental Protection Agency's (EPA's) Office of Inspector General
(OIG) received a congressional request on October 31, 2018, that raised concerns
about the EPA's handling of the Notice of Proposed Rulemaking (NPRM),
"Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and
Glider Kits." In response to this request, the OIG conducted an audit to determine
whether the EPA acted in compliance with Executive Order (EO) 12866,
Regulatory Planning and Review, and EO 13045, Protection of Children from
Environmental Health Risks and Safety Risks, in developing the proposed
rulemaking.
Background
In a "Frequently Asked Questions" document on heavy-duty glider vehicles and
kits, issued in July 2015, the EPA provides the following definitions:
What are heavy-duty "glider vehicles" and "glider kits"?
The term "glider kit" is used in the heavy-duty vehicle industry
to describe a chassis and cab assembly that is generally
produced by a vehicle manufacturer without a new engine,
transmission, or rear axle. A third party then typically installs a
used engine, transmission, and/or rear axle to complete
assembly of the vehicle. The terms "glider vehicle" or "glider"
are typically used for the completed vehicles. Historically,
gliders have been used as a means to salvage valuable
components, such as used engines, transmissions, and axles,
from vehicles that were badly damaged in collisions.
On October 25, 2016, the EPA finalized the "Greenhouse Gas Emissions and Fuel
Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—
Phase 2," hereafter referred to as the Phase 2 final rule. Under this rulemaking,
the EPA required a number of changes and clarifications for standards regarding
"glider vehicles," "glider engines" and "glider kits."1 The Phase 2 final rule
contains greenhouse gas emissions and criteria air pollution emission standards
(such as for nitrogen oxides [NOx] and particulate matter [PM]) for engines used
1 This report uses the term "gliders" to also refer to glider engines (reinanufactured or refurbished engines),
glider kits (new cab and chassis used to construct a glider vehicle), and glider vehicles (new cab and chassis and
reinanufactured or refurbished engine).
20-P-0047
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in glider vehicles. The rule also sets emissions limits for glider vehicles similar to
those for new trucks.
Under the Phase 2 final rule, the EPA
estimated that NOx and PM emissions of
any glider vehicles using pre-2007 engines
could be at least 10 times higher than
emissions from equivalent vehicles being
produced with new engines. Additionally,
emissions of NOx and PM from glider
vehicles using pre-2002 engines (prior to
exhaust aftertreatment requirements) could
be 20 to 40 times higher than current
engines.
The EPA indicated that, since 2004, production of glider vehicles increased by an
order of magnitude from a few hundred to thousands per year. While glider
vehicle production was not reported to the EPA prior to the Phase 2 final rule, the
EPA estimated that production was close to 10,000 each year.2
The Phase 2 final rule included a transitional program for gliders, in addition to a
long-term program that allows the reuse of relatively new engines. For the
transitional program, which allows the use of older engines, the rule stated that, for
calendar year 2017, each manufacturer's combined production of glider kits and
glider vehicles with pre-2010 engines was capped at the manufacturer's highest
annual production of glider kits and vehicles for any year from 2010 to 2014. Any
glider kits or glider vehicles produced beyond this allowance were subject to all
requirements applicable to new engines and vehicles for model year 2017.
Effective January 1, 2018, the permissible number of glider vehicles that could be
produced without meeting the Phase 2 long-term program was limited as follows:
Small businesses may produce a limited number of glider vehicles
without meeting either the engine or vehicle standards of the long-
term program. Larger vehicle manufacturers may provide glider
kits to these small businesses without the assembled vehicle
meeting the applicable vehicle standards. This number is limited to
the small vehicle manufacturer's highest annual production volume
in 2010 through 2014 or 300, whichever is less.
The 2018 allowances mostly will continue after 2020, but—effective January 1,
2021—all glider vehicles will be required to meet the Phase 2 greenhouse gas
vehicle standards.
Numerous scientific studies have linked
PM and NOx to a variety of health
problems. For example, the effects of
PM can result in emergency department
visits, hospitalizations and, in some
cases, premature death. Nitrogen oxides
react with volatile organic compounds to
form ozone and react with ammonia and
other compounds to form particle
pollution resulting in associated public
health and enviromnental effects.
Source: EPA, Our Nation 'sAir (2019)
2 EPA Office of Transportation and Air Quality and U.S. Department of Transportation. August 2016. Greenhouse
Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2
Response to Comments for Joint Rulemaking. EPA-420-R-16-901.
20-P-0047
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Under the Phase 2 final rule, the EPA maintained that by restricting the number of
glider vehicles with high-polluting engines on the road, excess NOx and PM
emissions would decrease dramatically and lead to substantial public health
benefits. As Figure 1 shows, the EPA estimated that the annual monetized health
impacts (such as reduced premature mortality, respiratory illnesses and infant
mortality) of the glider requirements were between $6 billion and $14 billion per
year (2013 dollars).3
Figure 1: EPA's estimated annual monetized health impacts of the Phase 2 final
rule glider requirements
MINIUM
,..u

MONETIZED HEALTH IMPACTS
$6 billion	Reduced:
r • infant mortality
• respiratory illnesses
		premature mortality
Source: OIG image.
Petition from Industry to Reconsider Glider Provisions
On May 8, 2017, then EPA Administrator Scott Pruitt met with the chief
executive officer and general counsel of a major glider assembler to discuss the
effect of the Phase 2 final rule on glider sales and jobs. On July 10, 2017, three
members of the glider industry petitioned the EPA to reconsider the application of
the Phase 2 final rule to glider kits, glider vehicles and rebuilt engines installed in
gliders.4 According to the petitioners, Section 202(a) of the Clean Air Act does
not authorize the EPA to regulate gliders as new motor vehicles; the EPA's prior
decision to regulate gliders was based on unsupported assumptions, rather than
data; and reconsideration was warranted under EO 13783.5 The petition requested
that the EPA complete its reconsideration as soon as possible given the impending
January 1, 2018, compliance date, which, according to the petition, would
effectively eliminate the industry.
Pruitt responded to the petition on August 17, 2017, stating that the EPA had
decided to revisit the provisions of the Phase 2 final rule that related to gliders.
The response also stated that the EPA intended "to develop and issue a Federal
Register notice of proposed rulemaking on this matter, consistent with the
requirements of the Clean Air Act."
3	Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Hea\>y-Duty Engines and Vehicles—
Phase 2. 81 Fed. Reg. 73478. 73943 (Oct. 25. 2016).
4	The EPA was petitioned jointly in a petition for reconsideration by three glider assemblers: Fitzgerald Glider Kits,
Harrison Truck Centers and Indiana Phoenix.
5	EO 13783 (March 31, 2017), Promoting Energy Independence and Economic Growth, directed federal agencies to
immediately review actions that may burden the development or use of domestically produced energy resources.
20-P-0047
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From August 2017 through October 2017, EPA staff, managers and other EPA
officials discussed multiple regulatory options to address the concerns raised in
the petition. Pruitt decided to issue an NPRM to repeal the glider portions of the
Phase 2 rule. On November 9, 2017, the NPRM (proposed Glider Repeal Rule)
was signed by Pruitt, and the proposed rule was released for public comment on
November 16, 2017. As of the date of this report, a final rule has not been issued.
Pertinent dates and actions referenced in this report are included in a timeline in
Appendix A.
EPA's Action Development Process
Developing environmental regulations is one of the EPA's principal
responsibilities. The agency prepares and issues regulatory actions that define the
technical and operational details of environmental programs to implement
environmental laws. The agency developed theEPA's Action Development
Process: Guidance for EPA Staff on Developing Quality Actions 6 to "ensure that
agency actions are of consistently high quality, involve senior managers early in
the development process, are supported with strong analysis and are developed
via an open process." The EPA's Action Development Process (ADP) is intended
to make certain that scientific, economic and policy issues are adequately
addressed at the appropriate stages in action development. The ADP facilitates
compliance with pertinent statutes and EOs, including EOs 12866 and 13045.
The ADP has multiple stages, from "tiering" the action through developing the
final action. Tiering determines the complexity of the process used to develop an
action based on the need for cross-agency input, controversy or visibility, as well
as the need for involvement by top-level managers. Tier 1 and 2 actions have a
larger scope, cost, level of impact or level of public interest than other tiers.
For Tier 1 actions, the Administrator or Deputy Administrator is the lead
decision-maker, while for Tier 2 actions the lead Assistant Administrator is the
lead decision-maker. As part of the tiering process, the lead office charters a
workgroup that comprises appropriate staff who are involved in the primary day-
to-day activity of the rulemaking.
The ADP is not intended to be a rigid process and, when needed, may be adjusted
to address timing and sequencing concerns with the addition or deletion of
milestones. While the ADP allows flexibility, exercising this flexibility needs to
be approved, documented and explained in the ADP tracking system.
6 The OIG reviewed both the September 2015 and March 2018 versions of this document.
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Requirements of EOs 12866 and 13045
EOs are issued by Presidents. EO 128667 directs that "significant regulatory
actions" be submitted to the Office of Management and Budget's (OMB 's) Office
of Information and Regulatory Affairs (OIRA) for review. According to
EO 12866, a regulatory action8 is deemed "significant" if it is likely to result in a
rule that meets any of the four conditions cited in Table 1.
Table 1: Definition of "significant" regulatory actions
(1)	Have an annual effect on the economy of $100 million or more or adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or tribal governments or
communities;
(2)	Create a serious inconsistency or otherwise interfere with an action taken or
planned by another agency;
(3)	Materially alter the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or
(4)	Raise novel legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive order.
Source: EO 12866, Section 3(f).
An action is deemed "economically significant" if the first of the four conditions
is met (see blue highlight in Table 1). EO 13045 9 applies to regulatory actions
that are determined to be "economically significant" under EO 12866 and that
"concern an environmental health or safety risk that an agency has reason to
believe may disproportionately affect children."
Table 2 describes the analyses requirements of EOs 12866 and 13045 for
"significant" and "economically significant" regulatory actions.
7	EO 12866, Regulatory Planning and Review (September 30, 1993).
8	EO 12866, Section 3(e), defines a "regulatory action" as "any substantive action by an agency (normally published
in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation
including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking."
9	EO 13045, Protection of Children from Environmental Health Risks and Safety Risks (April 23, 1997), amended
by EO 13229 (2001) and EO 13296 (2003).
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Table 2: EOs 12866 and 13045 analyses requirements
If action is identified
by EPA as or
is determined by
OIRA to be:
EO 12866
analysis requirements
EO 13045
analysis requirements
Sianificant
under EO 12866
• Assessment of the
potential costs and
benefits of the action.
• Not applicable.
Economically
Sianificant
under EO 12866
•	Assessment of the
benefits anticipated from
the action.
•	Assessment of the costs
anticipated from the
action.
•	Assessment of costs and
benefits of potentially
effective and reasonably
feasible alternatives to the
planned action, and an
explanation why the
planned action is
preferable to the identified
potential alternatives.
•	Evaluation of the
environmental health or
safety effects of the planned
regulation on children.
•	Explanation of why the
planned regulation is
preferable to other
potentially effective and
reasonably feasible
alternatives considered by
the agency.
Source: OIG analysis.
OIRA and the EPA share the responsibility to determine whether a regulatory
action is "significant" or "economically significant."10 As such, either entity can
designate an action as significant or economically significant.
EO 12866 requires that the EPA provide OIRA the opportunity to review all
"significant" and "economically significant" regulatory actions prior to
issuance.11 Unless it opts to waive review, OIRA reviews "significant" and
"economically significant" regulatory actions to "provide meaningful guidance
and oversight so that each agency's regulatory actions are consistent with
applicable law, the President's priorities, and the principles set forth in
[EO 12866] and do not conflict with the policies or actions of another agency."12
According to EO 12866, any substantive changes made to the regulatory action at
the suggestion or recommendation of OIRA must be identified for the public.
111 Section 6(a)(3)(B) of EO 12866 requires that "for each matter identified [by the issuing agency] as, or determined
by the Administrator of ()!R. I to be, a significant regulatory action, the issuing agency shall provide to OIRA"
certain information (emphasis added). Similarly, section 6(a)(3)(C) of EO 12866 requires that, "for those matters
identified [by the issuing agency] as, or determined by the Administrator of OIRA to be, [an economically
significant regulatory action], the agency shall also provide to OIRA" certain information (emphasis added).
11	EO 12866, Section 6(a)(3).
12	EO 12866, Section 6(b).
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Federal Records Act and EPA's Record-Keeping Requirements
According to the Federal Records Act, every federal agency is required to:
make and preserve records containing adequate and proper
documentation of the organization, function, policies, decisions,
procedures and essential transactions of the agency and designed to
furnish the information necessary to protect the legal and financial
rights of the Government and of persons directly affected by the
agency's activities.13
For purposes of the Federal Records Act, "record" means:
all recorded information, regardless of form or characteristics,
made or received by a Federal agency under Federal law or in
connection with the transaction of public business and preserved or
appropriate for preservation by that agency or its legitimate
successor as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the United
States Government or because of the informational value of data in
them.14
Pursuant to the EPA's Interim Records Management Policy, "these records are
public property and must be managed according to applicable laws and
regulations." Further, to comply with National Archives and Records
Administration record-keeping regulations,15 the Interim Records Management
Policy requires that EPA personnel create and maintain records that "[djocument
the formulation and execution of basic policies and decisions and the taking of
necessary actions, including all substantive decisions and commitments reached
orally (person-to-person, by telecommunications, or in conference) or
electronically." 16
Additionally, in an August 2018 memorandum addressed to EPA staff,
Administrator Andrew Wheeler outlined the importance of public participation and
transparency in EPA operations. The memorandum stated, "Much of EPA's
business is conducted through rulemaking. EPA employees must ensure that the
basis for the agency's decision appears in the public record."
13	44 U.S.C. §3101.
14	44 U.S.C. § 3301(a).
15	36 CFR § 1222.22.
16	The EPA's Interim Records Management Policy, CIO 2155.4 (August 22, 2018), superseded its Records
Management Policy" CIO 2155.3 (February 10, 2015), which was in place during the actions reviewed in this
report. Although the Records Management Policy did not contain text specifically referencing documentation of
decisions and commitments reached orally, it required that EPA personnel "create, receive and maintain records
providing adequate and proper documentation and evidence of EPA's activities." Regardless, the Interim Records
Management Policy text cited implements National Archives and Records Administration regulations promulgated
in 2009, long before the events at issue in this report. See 74 Fed. Reg. 51004 (October 2, 2009).
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Responsible Offices
The EPA's Office of Air and Radiation was the program office responsible for
developing the proposed Glider Repeal Rule. The EPA's Office of Policy, within
the Office of the Administrator, manages the regulatory development process for
the agency by providing support and guidance to the EPA's program offices as
they develop regulations. The Office of Policy also serves as a liaison to the
OMB and to other agencies involved in regulatory action development. The
Office of Policy further has primary responsibility for the ADP and manages the
interpretation and implementation of the main EOs and statutes that apply to
the ADP.
Scope and Methodology
We performed our work from December 2018 through July 2019. We conducted
this audit in accordance with generally accepted government auditing standards.
Generally accepted government auditing standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit objective.
We encountered an impediment to obtaining all the desired information to
complete our audit, as described below. We were still able to obtain enough
information to answer our objective, although this impediment impacted our
ability to definitively determine the rationale for the significance determination
for the proposed rule. However, we believe that the evidence obtained provides a
reasonable basis for our findings and conclusions based on our audit objective.
To answer our objective, we reviewed documents relevant to our review,
including the NPRM, EOs 12866 and 13045, the EPA's ADP, the Phase 2 final
rule, and the docket for the proposed Glider Repeal Rule. We also interviewed
agency staff, managers and officials in the Office of Air and Radiation, Office of
Policy, and Office of the Administrator involved in the proposed regulatory
action.
Additionally, we obtained access to emails of former Administrator Pruitt and key
officials involved in the proposed regulatory action. We reviewed those emails for
information relevant to our objective. The OIG reviewed the retained emails in the
accounts at the time of the search (March 2019), including sent and received
emails, as well as deleted emails. Per the EPA's email management protocols,
items in the deleted folder are permanently deleted after 90 days, and items in the
junk folder are permanently deleted after 30 days. Any emails placed in the deleted
folder more than 90 days before the OIG request or in the junk folder more than 30
days before the OIG request would have been permanently deleted and not
available for review.
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OMB Impeded OIG from Obtaining Information
The Inspector General Act of 1978 (IG Act), as amended,17 authorizes each
Inspector General "to request such information or assistance as may be necessary
for carrying out the duties and responsibilities provided by this Act from any
Federal, State, or local governmental agency or unit thereof."18 The IG Act
further provides that, in response to such requests, "the head of any Federal
agency involved shall, insofar as is practicable and not in contravention of any
existing statutory restriction or regulation of the Federal agency from which the
information is requested, furnish to such Inspector General . . . such information
or assistance."
Section 12(5) of the IG Act defines "Federal agency" by reference to 5 U.S.C.
§ 552(f), which states that "'agency' as defined in section 551(1) includes the
Executive Office of the President' (emphasis added). Further, the IG Act provides
that "[wjhenever information or assistance requested under subsection ... (a)(3)
is, in the judgment of an Inspector General, unreasonably refused or not provided,
the Inspector General shall report the circumstances to the head of the
establishment involved without delay." 19
The OMB refused to provide the OIG with specific responses or documentation
related to OIG questions regarding OIRA's involvement in this rulemaking and the
decisions made, stating that the information sought was "particularly sensitive." In
April 2019, the acting EPA Inspector General notified both the OMB Director and
Congress that the OMB failed to respond to our request for information, which
"constitutes a clear impediment to our audit" (Appendix B).
We reviewed EPA emails to obtain limited information pertaining to OIRA
communications. If discussions between EPA officials and the OIRA were held
telephonically or without written records, we were unable to access that
information. Additionally, we did not speak with former Administrator Pruitt and
two former EPA officials closely involved with this proposed regulatory action, as
they had left the agency.
Other Report
In addition to this congressional request, the OIG received separate congressional
requests pertaining to the EPA's testing of gliders. The final report, EPA's 2017
Glider Vehicle Testing Complied with Standard Practices (Report No. 19-P-0252).
was issued on July 31, 2019.
17	5 U.S.C. app.
18	IG Act § 6(a)(3).
19	IG Act § 6(c)(2).
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Chapter 2
EPA Failed to Develop Required Cost and Benefit
Analyses and to Assess Impacts to Children's Health
for the Proposed Glider Repeal Rule
The EPA did not comply with analyses requirements for EOs 12866 and 13045,
nor did it follow its ADP in the development of the proposed Glider Repeal Rule.
Although EPA officials were aware that available information indicated the
proposed rulemaking was "economically significant" pursuant to EO 12866, EPA
managers and officials said that then Administrator Pruitt directed that the Glider
Repeal Rule be promulgated and that the Office of Air and Radiation not conduct
any analyses required by EOs 12866 and 13045. The repeal rule would relieve
industry of compliance requirements of the Phase 2 final rule that set emissions
standards and production limits of glider vehicles beginning January 1, 2018. The
absence of analyses resulted in the public not being informed—either during the
public comment period or thereafter—of the proposed rule's benefits, costs,
potential alternatives and impacts on children's health.
No Benefit, Cost, Alternatives or Children's Health Analyses
Completed for Proposed Glider Repeal Rule
Per EO 12866, any regulatory action having an annual effect on the economy of
$100 million or more is considered "economically significant." In the Phase 2
final rule, the EPA estimated that the removal of all unrestricted glider vehicle
emissions could yield between $6 billion and $14 billion in health benefits
annually (in 2013 dollars). The proposed Glider Repeal Rule would eliminate the
very Phase 2 regulation generating such substantial projected health benefits and
economic impacts.
We found that the EPA did not conduct any of the analyses required of it by
EO 12866 for either a "significant" or "economically significant" regulatory
action, nor did the EPA include feasible alternatives in the proposed rule, as
required by EO 12866. We also found that the EPA did not conduct analyses of
the health or safety effects on children required by EO 13045 for an
"economically significant" regulatory action.
Table 3 lists analyses requirements of EOs 12866 and 13045 and whether the
EPA completed the requirements.
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Table 3: EOs 12866 and 13045 analyses requirements completed for the proposed
Glider Repeal Rule NPRM
If action is
deemed to be:
EO 12866
requirements
Completed
by EPA?
EO 13045
requirements
Completed
by EPA?
Sianificant
under EO 12866
Assessment of the
potential costs and
benefits
No
Not
applicable
Not
applicable
Economically
Sianificant
under EO 12866
Assessment of the
benefits anticipated from
the regulatory action
No
Evaluation of the
environmental health or
safety effects of the
planned regulation on
children
No
Assessment of the costs
anticipated from the
regulatory action
No
Assessment of costs and
benefits of potentially
effective and reasonably
feasible alternatives to the
planned regulation, and
an explanation why the
planned action is
preferable to the identified
potential alternatives.
No
Explanation of why the
planned regulation is
preferable to other
potentially effective and
reasonably feasible
alternatives considered by
the agency
No
Source: OIG analysis.
Not completing the analyses required by EO 12866 for a "significant" or
"economically significant" rulemaking resulted in the public not knowing the
costs and benefits of (such as the associated health risks with PM and NOx), and
feasible alternatives to, the proposed rulemaking. Not completing the analysis
required by EO 13045 resulted in the public not knowing the impacts of the
proposed rule on children's health. Because no alternatives were considered, as
required by EOs 12866 and 13045, it is also unknown whether the proposed rule
is preferable to potential alternative actions.
Day Before Signature, Rule Downgraded from Economically Significant
to Significant
According to information reviewed by the OIG, EPA managers and officials
believed that the proposed Glider Repeal Rule was an "economically significant"
regulatory action per EO 12866. However, 1 day prior to receiving the former
Administrator's signature, the rule was downgraded from "economically
significant" to "significant." Table 4 details the timeline for the proposed Glider
Repeal Rule.
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Table 4: Timeline for Proposed Glider Repeal Rule
Date
Event
August-
September 2017
Managers and officials of the EPA Office of Air and Radiation's Office of
Transportation and Air Quality characterized the proposed repeal rule as
"economically significant" in emails, as well as in briefings provided to EPA
officials in the Office of Air and Radiation, Office of General Counsel, and
Office of the Administrator on August 11, 2017, and September 22, 2017. The
September 22 briefing also included time-frame estimates needed to complete
analyses required for the economically significant regulatory action. The
briefing projected that the EPA would complete its analyses and the OMB
would begin its review in April 2018.
October 6, 2017
An EPA official conveyed to staff via email that:
they [Administrator Pruitt and Administrator Pruitt's senior
advisor for the Office of Air and Radiation] are now asking
for and expecting a proposal to repeal the glider
requirements next week. Based solely on a legal argument
and no analysis. Apparently they [Administrator Pruitt and
Administrator Pruitt's senior advisor for the Office of Air and
Radiation] have a commitment from OMB that they [OMB]
will not require any analysis at all for this [proposed Glider
Repeal Rule] action.
However, based on the OIG's review of EPA records, we found no such
documented agreement between the EPA and OMB/OIRA, and EPA officials
told us such an arrangement did not exist.
October 20, 2017
The proposed rule was listed as "economically significant" in the draft sent to
OIRA for review on this date. However, the proposed rule did not include the
required EO 12866 and 13045 analyses.
October 24, 2017
In OIRA's comments back to the EPA, it asked the EPA to explain how the
agency arrived at the "economically significant" designation under EO 12866
and requested that the agency include the required benefit and cost analyses
to support the designation.
October 27, 2017
The Senior Counsel for the Office of Air and Radiation stated the following to
other EPA officials in relation to responding to OIRA's October 24 comments
on the NPRM:
You should note that this draft does not address any of the
"back end" issues raised by OMB and others during the
interagency review, nor does it attempt to provide any of the
cost/benefit type analysis that OMB and others were seeking.
It is my understanding that such analysis (and data) does not
exist; that such analysis will not be produced in the timeframe
in which we are working; and that, in any event, if such
analysis were ever to be produced, it would most likely not be
as "supportive" of the proposal as OMB and others might like,
(emphasis from original email)
Thus, EPA officials were aware that the required EOs 12866 and
13045 analyses were not completed and that OIRA's comments
regarding the need for such analyses were not addressed.
November 2, 2017
The EPA provided a revised version of the proposed rule to OIRA. The EPA
edited various sections of the proposed rule, though there was no change to
the "economically significant" determination and the EPA still did not include
any EO 12866 or 13045 analyses. The OIG did not find any analyses or
justification for not addressing OIRA's comments.
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Date
Event
November 8, 2017
•	According to the emails from EPA staff, OIRA felt strongly that the EPA
needed to provide the accompanying EO 12866 analysis because the EPA
designated the proposed rule as "economically significant." OIRA would
"demand something substantive" [required EO analyses] if the proposed
rule was not downgraded to "significant."
•	Absent any analysis from the EPA, an OIRA staff member responsible for
reviewing the rule conveyed to another EPA staff member a belief that the
rule should be changed from "economically significant" to "significant." We
attempted to verify why OIRA requested this change but OIRA refused to
provide the OIG further explanation.*
•	An EPA official in the Office of Policy approved the change from
"economically significant" to "significant." According to emails obtained, the
Deputy Associate Administrator for the Office of Policy was "fine with" the
change from "economically significant" to "significant" "given that the OMB
was the one proposing" the change.
•	The EPA changed text in the proposed rule as the rule changed to
"significant" under EO 12866. Rather than stating that this regulatory action
was subject to EO 13045, the text was changed to: "This action is not
subject to Executive Order 13045 because it is not an economically
significant regulatory action as defined by Executive Order 12866"
(emphasis added). With these changes associated with EOs 12866 and
13045, OIRA and the EPA agreed to proceed with issuing the proposed rule
as "significant."
November 9, 2017
Administrator Pruitt signed the proposed rule.
November 16, 2017
The Proposed Gilder Repeal Rule was posted in the Federal Register and
released for public comment. The public comment period concluded on
January 5, 2018.
Source: OIG analysis.
*On April 30, 2019, the OIG notified the EPA's congressional committees of jurisdiction that the OMB had not
responded to the OIG's request. As of the date of this report, the OMB has not provided the requested information.
ADP Not Followed for Proposed Glider Repeal Rule
The EPA's ADP is intended to serve as a comprehensive framework to govern the
use of quality information to support EPA rulemakings, and to make certain that
scientific, economic and policy issues are adequately addressed at the appropriate
stages in action development. While the ADP allows flexibility, exercising this
flexibility needs to be approved and documented, per the EPA's ADP guidance.
The EPA did not follow its principal rulemaking guidance in developing the
proposed Glider Repeal Rule and lacked documentation showing that the ADP
deviations were approved. The proposed Glider Repeal Rule did not have an ADP
workgroup and, based on documents we reviewed, it was not tiered until after the
NPRM was sent to OIRA on October 20, 2017.20 When requested by the OIG, an
211 As described in Chapter 1, tiering determines the complexity of the process used to develop an action based on the
need for cross-agency input, controversy or visibility, as well as the need for involvement by top-level managers.
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EPA manager could not provide a date for when the rulemaking was designated
as a Tier 1 action. However, the manager was able to tell us that the rule was
down-tiered to Tier 2 on March 8, 2019. According to EPA managers and
officials familiar with this rulemaking, this rulemaking did not follow the
traditional rulemaking process.
Developing environmental regulations is one of the agency's principal
responsibilities. Much of the EPA's environmental success and organizational
credibility is directly linked to the quality of this work. The ADP is the EPA's
primary guidance to "ensure that agency actions are of consistently high quality,
involve senior managers early in the development process, are supported with
strong analysis and are developed via an open process." By not following the
ADP, the EPA failed to issue a proposed Glider Repeal Rule that was developed
via an open process, was supported with high-quality analyses, and met the
requirements of EOs 12866 and 13045.
Current Status of Proposed Glider Repeal Rule
As the public comment period for the proposed rule closed on January 5, 2018,
and there is no public comment period for final rules, the public was not provided
the opportunity to review and comment on the benefits, costs and alternatives
associated with the proposed Glider Repeal Rule or the potential impacts the rule
could have on children's health. (See Table 3 for the EO analyses requirements
and status of the agency's fulfillment of these requirements.)
Based on information reviewed by the OIG, the EPA developed a draft final rule
dated April 18, 2018, and returned at that point to designating the rule as
"economically significant," despite having downgraded the proposed rule to
"significant" the day before signature of the proposed rule on November 9, 2017.
This draft final rule did not include any analyses required by EOs 12866 and
13045. We found no evidence that the draft final rule was formally submitted to
OIRA. However, on April 23, 2018, OIRA conveyed to the EPA that OIRA
would require analysis under EO 12866 for the final rule. We sought clarification
from OIRA on why it waited until after the proposed rule was issued to require
the benefit and cost analyses, but OIRA refused to provide information to the
OIG.
As of the date of this report, the proposed Glider Repeal Rule is listed on the
EPA's Fall 2019 Regulatory Agenda21 as an "economically significant" long-term
action. A long-term action is one that is under development and upon which the
EPA does not expect to act within 12 months of publication of the Regulatory
Agenda. The EPA also changed the name of the rule to "Revision to Emission
Requirements for Glider Vehicles, Glider Engines, and Glider Kits."
21 The Fall 2019 Regulatory Agenda is the latest version as of the date of this report.
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EPA's Rationale for Not Completing Required Analyses
The EPA is responsible for developing regulations and assuring that the regulations
are consistent with applicable law, the President's priorities and the principles set
forth in EO 12866.22 According to EPA managers and officials, as the Phase 2
compliance deadline of January 1, 2018, was approaching, then Administrator
Pruitt directed that the Glider Repeal Rule be promulgated as quickly as possible
without conducting the analyses required by EOs 12866 and 13045. EPA officials
in the Office of Air and Radiation, the Office of General Counsel, and the Office of
Policy were aware that available information indicated that the proposed
rulemaking was "economically significant" and thus subject to the requirements of
EOs 12866 and 13045. An Office of General Counsel manager told the OIG that,
for the proposed Glider Repeal Rule, the Office of General Counsel deferred to the
Office of Policy and the OMB regarding the significance determination and
whether the analyses were required by the EOs.
According to one EPA official, Administrator Pruitt requested that all
rulemakings be completed as quickly as possible. EPA officials also told us that,
during this time, processes such as this rulemaking were being done "fast and
loose," and the atmosphere was described as the "wild west." Officials described
this rulemaking as abnormal and unusual due to the lack of program office
involvement in deciding to develop the rule.
EPA Failed to Meet Federal Records Act Requirements
The EPA failed to satisfy record-keeping requirements pertaining to the
substantive decision to change the NPRM's designation from "economically
significant" to "significant." The Federal Records Act requires that the agency
"make and preserve records containing adequate and proper documentation of the
... decisions ... and essential transactions of the agency." 23 Pursuant to
regulations issued by the National Archives and Records Administration,24 the
EPA in its Interim Records Management Policy states:
EPA must properly and adequately document Agency business in
accordance with NARA [National Archives and Records
Administration] regulations. To meet these obligations, EPA
employees and non-employees who manage records must create
and maintain records that: . . . Document the formulation and
execution of basic policies and decisions and the taking of
necessary actions, including all substantive decisions and
22	EO 12866 Section 2(a).
23	44 U.S.C. §3101.
24	"To meet their obligation for adequate and proper documentation, agencies must prescribe the creation and
maintenance of records that: ... (e) Document the formulation and execution of basic policies and decisions and the
taking of necessary actions, including all substantive decisions and commitments reached orally (person-to-person,
by telecommunications, or in conference) or electronically." 36 CFR § 1222.22.
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commitments reached orally (person-to-person, by
telecommunications, or in conference) or electronically.
Although the EPA generated records capturing fragments of discussions
precipitating the oral decision to designate the NPRM as "significant" rather than
"economically significant," as well as of discussions implementing the decision
once it was apparently made, the agency did not make or preserve adequate records
of the formulation and execution of the decision. Inherent to the formulation of a
decision are supporting information and supporting rationale. The agency failed to
make and preserve adequate records of either, leaving entirely unexplained the
NPRM's change in designated significance 1 day prior to signature by the EPA
Administrator. Additionally, the agency failed to "[ijdentify for the public those
changes in the regulatory action that were made at the suggestion or
recommendation of OIRA," as required by EO 12866. As the EPA observes in its
Interim Records Management Policy, "The accuracy and consistency of how
records are identified, captured, stored and retrieved provide the cornerstone to the
effective functioning and transparent operation of the Agency."
Conclusion
The EPA did not comply with analyses requirements in EOs 12866 and 13045,
nor did the EPA follow its ADP for the proposed Glider Repeal Rule or meet
Federal Records Act requirements. Such actions call into question the quality of
EPA rulemaking processes and leave the public and stakeholders without the
information necessary to make informed comments on EPA regulatory actions.
Should the EPA finalize the glider repeal rulemaking, the EPA needs to conduct
the required analyses prior to issuance of the final rule and provide the public a
means to comment on the analyses supporting the rulemaking. As rulemaking is
one of the EPA's principal responsibilities, the EPA must ensure that the basis for
the agency's substantive rulemaking decisions appears in the public record.
Recommendations
We recommend that the Assistant Administrator for Air and Radiation, in
consultation with the Associate Administrator for Policy:
1.	For the proposed Glider Repeal Rule, per Executive Order 12866, identify
for the public (e.g., via the public docket) the substantive change of
economic significance between the draft submitted to the Office of
Information and Regulatory Affairs for review and the action subsequently
announced, and identify whether that change was made at the suggestion
or recommendation of the Office of Information and Regulatory Affairs.
2.	Should the EPA finalize the glider repeal rulemaking, prior to issuance of
the final rule, conduct the required analyses to comply with Executive
Orders 12866 and 13045; include all analyses in the public docket;
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identify for the public any substantive changes between the draft
submitted to the Office of Information and Regulatory Affairs for review
and the action subsequently announced, and any changes made at the
suggestion or recommendation of the Office of Information and
Regulatory Affairs; and provide the public a means to comment on the
analyses supporting the rulemaking.
3. Document the decisions made during the glider repeal rulemaking process,
including substantive decisions reached orally, to comply with applicable
record-keeping and docketing requirements, including those found in the
Federal Records Act, the EPA's Interim Records Management Policy, and
the EPA's Action Development Process guidance.
Agency Response and OIG Evaluation
The acting Assistant Administrator for Air and Radiation provided a response to
this draft report on August 21, 2019 (Appendix C). This initial response did not
provide sufficient corrective actions or corrective action milestones. On
October 3, 2019, we met with the EPA and informed the agency of the
shortcomings of the response. On October 16, 2019, the agency provided a
revised response that adequately addressed Recommendations 1 and 2
(Appendix D). The OIG clarified Recommendation 1 to specify that the
information sought was which agency (EPA or OMB) requested the change to the
economic significance determination. For Recommendation 1, the agency has
identified the substantive change of economic significance in the public docket
and the OIG accepts the agency's corrective action to provide information
regarding whether that change was made at the suggestion or recommendation of
OIRA in the public docket. For Recommendation 2, the OIG accepts the agency's
corrective action to follow EOs 12866 and 13045, if the agency decides to finalize
the Glider Repeal rulemaking. Recommendations 1 and 2 are therefore resolved
with corrective actions pending.
With regard to Recommendation 3, the EPA provided the relevant documentation
pertaining to the Glider Repeal Rule but did not provide a corrective action plan
that addressed how this documentation complies with applicable record-keeping
and docketing requirements. Recommendation 3 is unresolved.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS




Potential



Planned
Monetary
Rec.


Completion
Benefits
No. Page No.
Subject Status1
Action Official
Date
(in $000s)
1 16
In consultation with the Associate Administrator for Policy, for R
the proposed Glider Repeal Rule, per Executive Order 12866,
identify for the public (e.g., via the public docket) the
substantive change of economic significance between the draft
submitted to the Office of Information and Regulatory Affairs for
review and the action subsequently announced, and identify
whether that change was made at the suggestion or
Assistant Administrator for
Air and Radiation
12/31/19

recommendation of the Office of Information and Regulatory
Affairs.
2 16 In consultation with the Associate Administrator for Policy,	R Assistant Administrator for 6/30/20
should the EPA finalize the glider repeal rulemaking, prior to	Air and Radiation
issuance of the final rule, conduct the required analyses to
comply with Executive Orders 12866 and 13045; include all
analyses in the public docket; identify for the public any
substantive changes between the draft submitted to the Office
of Information and Regulatory Affairs for review and the action
subsequently announced, and any changes made at the
suggestion or recommendation of the Office of Information and
Regulatory Affairs; and provide the public a means to comment
on the analyses supporting the rulemaking.
3 17 In consultation with the Associate Administrator for Policy,	U Assistant Administrator for 12/31/19
document the decisions made during the glider repeal	Air and Radiation
rulemaking process, including substantive decisions reached
orally, to comply with applicable record-keeping and docketing
requirements, including those found in the Federal Records
Act, the EPA's Interim Records Management Policy, and the
EPA's Action Development Process guidance.
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
Comprehensive Timeline of Significant Dates for
Proposed Glider Repeal Rule
Date
Event
October 25, 2016
The EPA finalized the "Greenhouse Gas Emissions and Fuel Efficiency Standards for
Medium- and Heavy-Duty Engines and Vehicles—Phase 2."
May 8, 2017
Administrator Pruitt met with representatives of a major glider assembler.
July 10, 2017
Members of the glider industry petitioned the EPA to reconsider applying the Phase 2
final rule to glider kits, glider vehicles and rebuilt engines installed in gliders.
August 11,2017
Managers and officials in the Office of Transportation and Air Quality briefed other EPA
officials on gliders, stating a proposed rulemaking would be economically significant.
August 17, 2017
Administrator Pruitt responded to the glider industry petition, saying that the EPA had
decided to revisit the provisions of the Phase 2 final rule that related to gliders. The
response also stated that the EPA intended to develop and issue a Federal Register
NPRM on this matter, consistent with requirements of the Clean Air Act.
September 22, 2017
Managers and officials in the Office of Transportation and Air Quality briefed other EPA
officials on gliders. The briefing included the time-frame estimates needed to complete
analyses required for economically significant regulatory actions.
October 6, 2017
An EPA official conveyed to staff via email that:
they [Administrator Pruitt and Administrator Pruitt's senior advisor for
the Office of Air and Radiation] are now asking for and expecting a
proposal to repeal the glider requirements next week. Based solely on a
legal argument and no analysis. Apparently they [Administrator Pruitt
and Administrator Pruitt's senior advisor for the Office of Air and
Radiation] have a commitment from OMB that they [OMB] will not
require any analysis at all for this [proposed Glider Repeal Rule] action.
However, based on the OIG's review of EPA records, we found no such documented
agreement between the EPA and OMB/OIRA, and EPA officials told us such an
arrangement did not exist.
October 20, 2017
The EPA sent the draft NPRM to OIRA listed as "economically significant."
October 24, 2017
OIRA provided comments back to the EPA on the draft NPRM. In the comments, OIRA
asked the EPA to explain how the agency arrived at its designation of "economically
significant." OIRA requested that the agency include benefit and cost analyses to support
the suggested designation.
October 27, 2017
The Senior Counsel for the Office of Air and Radiation stated the following to other EPA
officials in relation to responding to OIRA's October 24 comments on the NPRM:
You should note that this draft does not address any of the "back end"
issues raised by OMB and others during the interagency review, nor
does it attempt to provide any of the cost/benefit type analysis that OMB
and others were seeking. It is my understanding that such analysis (and
data) does not exist; that such analysis will not be produced in the
timeframe in which we are working; and that, in any event, if such
analysis were ever to be produced, it would most likely not be as
"supportive" of the proposal as OMB and others might like.
(emphasis from original email)
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Date
Event

Thus, EPA officials were aware that the required EO 12866 and 13045 analyses
were not completed and that OIRA's comments regarding the need for such
analyses were not addressed.
November 2, 2017
The EPA sent a revised version of the draft NPRM back to OIRA listed as "economically
significant."
November 6, 2017
Teleconference held between EPA and OMB staff.
November 7, 2017
Teleconference held between EPA and OMB staff.
November 8, 2017
OIRA told an EPA staff member that it believed the rule should be changed from
"economically significant" to simply "significant." In an email reviewed, an EPA staff
member indicated that OIRA felt strongly that the EPA needed to have an accompanying
analysis to support that the action was "economically significant" and OIRA would
demand something substantive if it were not changed. An EPA official in the Office of
Policy approved this change, given that OIRA was proposing the change from
"economically significant" to "significant."
OIRA approved the NPRM. The NPRM was listed as "significant."
November 9, 2017
The NPRM was signed by Administrator Pruitt.
November 16, 2017
The NPRM was posted in the Federal Register and released for public comment.
November 20, 2017
The Office of Transportation and Air Quality issued the EPA's National Vehicle and Fuel
Emissions Laboratory document on "Chassis Dynamometer Testing of Two Recent
Model Year Heavy-Duty On-Highway Diesel Glider Vehicles." This document found that
glider vehicles emit many times the level of pollutants over the standards for new heavy-
duty engines. According to the Office of Transportation and Air Quality, the emissions
from the glider vehicles tested are consistent with those estimated by the model used to
support the Phase 2 final rule regulating glider vehicles.
January 5, 2018
The NPRM public comment period closed.
April 18, 2018
The EPA developed a draft final rule dated April 18, 2018 and returned to designating the
rule as "economically significant" despite having downgraded the proposed rule to
"significant" the day before signature on November 9, 2017. This draft final rule did not
include any analyses required by EOs 12866 and 13045. We found no evidence that the
draft final rule was formally submitted to OIRA.
April 23, 2018
OIRA conveyed to the EPA that OIRA would require analyses for the final rule.
December 2019
The Glider Repeal rule is listed on the EPA's Fall 2019 Regulatory Agenda as an
"economically significant" long-term action.
Source: OIG analysis.
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Appendix B
April 2019 Letter to OMB Requesting Information
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
APR I 5 2019
The Honorable Mick Muivaney
Director
Office of Management and Budget
725 17lh Street, NW
Washington, D.C. 20503
RE: Request for Information Regarding the Glider Repeal Proposed Rule
Dear Director Muivaney:
The U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG) is currently
conducting an audit1 in response to a congressional request to review activities related to the development
of the proposed EPA rule titled "Repeal of Emission Requirements for Glider Vehicles, Glider Engines,
and Glider Kits" (Glider Repeal Proposed Rule).2 Starting in early December 2018, my office began
requesting specific information from the Office of Management and Budget's (OMB's) Office of
Information and Regulatory Affairs (OIRA) regarding its role in the development of the Glider Repeal
Proposed Rule. With this letter, I bring to your attention that, to date, the OMB has not responded to our
request for certain information—specifically, four questions put to the OMB on March 7, 2019.
I do not accept today's response from OMB that, while "very supportive of EPA OIG's work," it declines
to support our work due to the supposed deliberative character of the sought information. If full and
complete answers to these questions are not received by April 29, 2019,1 intend to notify Congress
immediately thereafter.
The Inspector General Act of 1978, as amended (IG Act),3 authorizes each Inspector General "to request
such information or assistance as may be necessary for carrying out the duties and responsibilities
provided by this Act from any Federal, State, or local governmental agency or unit thereof."4 The IG Act
further provides that, in response to such requests, "the head of any Federal agency involved shall,
insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the
Federal agency from which the information is requested, furnish to such Inspector General. .. such
information or assistance.'" Further, it provides that "[wjhenever information or assistance requested
1	See the Project Notification for Project No. OA&K-FY 19-0053.
2	82 Fed. Reg. 53442 (Nov. 16,2017).
3	5 U.S.C. app.
4	IG Act § 6(a)(3).
5	IG Act § 6(c)(1). Please note that section 12(5) of the IG Act defines "Federal agency" by reference to 5 U.S.C. § 552(f).
which states that ""agency' as defined in section 551(1) of this title includes any executive department, military department.
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under subsection ... (a)(3) is, in the judgment of the requesting inspector General, unreasonably refused
or not provided, the inspector General shall report the circumstances to the head of the establishment
involved without delay."'1
As part ot this audit, the EPA GIG seeks to understand what decisions and directives may have
precipitated the possible modification of certain text pertaining to the Proposed Rule's significance
determination. Since significance determinations involve not only EPA personnel but OIRA personnel,
it was "'necessiirv" under the IG Act for the EPA 01G to gather information from OIRA as well as EPA
personnel.' The following timeline shows when and how we corresponded with OIRA personnel
regarding this matter:
•	December 10. 2018 - The DIG first contacted OMB personnel via email to arrange a meeting
to discuss information related to the subject audit,
» December 12, 2018 - The OMR's Assistant General Counsel responded \ia email stating it is
OMB protocol to manage requests for information through the OMR's Office of General
( ou'tsei, and requested that the FPA 01G send its request for information in the form of
written questions.
•	December 14.2018 - I he F.PA OIG nrovided a set of six questions to the OMB Assistant
General Counsel vm email.
° December i 8, 2018 - The FPA OIG project manager spoke with the OMB Assistant General
Coiii^ei \ ia telephone, Che OMB Assistant General Counsel stated he was working with the
subject matter expert to provide written responses by December 21. 2018.
° Januon 28, 2019s - Having not received a response, the EPA OTG sent a second email to the
OMB Assistant General Counsel. The OMB Assistant General Counsel informed the KPA
OIG that their stuff had just retr~ed from the furlough and they would put this matter at the
"top of our queue." The OMB Assistant General Counsel did not provide an estimated
tiir.c'rame and toid the FPA OIG to follow up in a week,
® February 5,201 <-> - The EPA OIG sent a third email to the OMB Assistant General Counsel.
The OMB Assistant General Counsel did not reply.
•	February 11, 201L) -1 laving received no response or communication, the KPA OIG sent a
for.rlh email to the OMB Assistant General Counsel The OMB Assistant General Counsel
said he would "touch base with the subject matter expert" but did not provide an estimated
tinie'Hane when the EPA OIG could expeei a response.
•	hebraary 28. 2019 - The OMB Assista.it General Counsel directed the OIG team to the
record for a Senate hearing titled "Reviewing the Office of Information and Rcgulalory
Aila.rs."'* The OIG team reviewed the responses to the Questions for the Record and
identified. DIG questions that still remained unanswered.
Government corporation. Government controlled corporation, or other establishment in the executive branch of the
Government (wlIljh)'; thj LxtxHiive il/thi of the Pra/Junt), ot anv independent regulatory agency" (Italics added for
emphasis.)
* IG Act § 6(c)(2).
' IG Act § 6(aS(31
' A partial federal government shutdown occurred from December 22, 20IS until January 25, 2019
' 11 1 ' ic. • - o-i" '' i" i . ,i'¦ J i < v >; Committee on Homeland Securitv 
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• March 7.2019- The EPA OIG provided a narrowed set of four questions (attached) to the
OMB Assistant Genera! Counsel, requesting a response by March 28, 2019,
As of today, the OMB has not answered any of our four revised questions. Such protracted  April 29, 2019,1 intend to report this
failure to Congress immediate!) (hereafter.
if you or your stall' would like to discuss this matter further, please contact Eric Hanger, Acting Counsel
to the Inspector General, at
ec: Paul Ray, Acting Administrator, OIRA, OMB
Attachment
Questions, for the- Record with answers from then-Of RA Administrator Neomi Rao related to the Glider Repeal Proposed
Rule
¦' It i Art 5 6(en2j.
11 1C Ac! § 4!3l<5).
Sincerely,
Charles Sheehan
Acting Inspector General
3
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Attachment: Questions Sent to OMB Assistant General Counsel on March 7,2019
The following questions pertain to KIN 2060-AT79, "Repeal of Emission Requirements for Glider
Vehicles, Glider Engines, and Glider Kits."
1.)	In late October 2017. OIRA provided passback comments asking the FPA to explain how it
arrhed at the "economically significant'" designation under HO 12866, OIRA also requested
the EPA to include additior-al benefu>'eost analysis in she proposed rule to support the
suggested significance determination, I lp until the day prior to signature by the EPA
Adrm: -water, the text of the proposed action contained a determination that the action was
"Leco.:omicai!> significant,''
j. What information did the EPA pro\ ide to OIRA to address OIRA's comment
requesting additional benefj'cost anah sis to support the suggested significance
determination?
k \\ hat information did O'RA use to make the determination that this proposed rule
as significant rather tha.i econonreally significant?
2.)	The Notice of Proposed Rulemaking (NPRM) was approved and determined to be
"SignPicam" by OIR
a. hat specific 'nformation did OIRA rely on to conclude that the requirements of
EC) 12866 Section 6{a)(3HB"Hi) and (ii) were met, particularly the costs and benefits
requirements of Section 6(a)f3MRi(ii)?
3.)	For the ?-oposed Rule'- stage, this action was listed as "Other Significant" i or the Final
Rule stage, it is listed as "Economically Significant" (Spring 2018n; Fall 2018"j.
a.	When and why was this change in significant determination made?
b.	Was additional information presented in the public comments or elsewhere that led to
this significant determination change? If so. please explain.
4.)	On April 23, 205 8, the liPA was told by OIRA that it world not review the draft final rule
without a Regulatory Impact .Analysis.
a.	Wnv was a Regulatory Impact Analysis determined necessary for the final rule when
it does not appear that one was completed for the notice of proposed rulemaking?
b.	Our understanding is that h\ not including a Regulator}' Impact Analysis during the
NPRM stage, the public misses an opportunity to review and comment on this
information allowing the agency to potentially avoid negative comments on tne
analysis. Is there an advantage in waiting until the draft final rale stage to do the
Regulatory Impact Analyst?
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Appendix C
Office of Air and Radiation's Initial Response to
Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON OC ?04«>
August 21. 2019
MEMORAXin M
SIBJFXT:
KKOM:
TO:
The Office of Air and Radiation (OAR) appreciates the opportunity to review and comment
on the Office of Inspector General's (OIG) report titled EPA Failed to Develop Required Benefits
and Cost Analysis and Assess Impacts on Children's Heath for the Proposed Glider Repeal Rule
(Draft Report).
The Clean Air Act requires the U.S. Environmental Protection Agency (EPA) to establish
and implement regulations to protect human health and the environment, including regulations to
control emissions from cars, trucks, and other mobile sources of air pollution. EPA's Office of
Transportation and Air Quality (OTAQ) within OAR fulfills this responsibility for EPA by setting
motor vehicle emission standards and by monitoring compliance with requirements.
OAR agrees with the princi ples of transparency and public participation in the rulemaking
process that the OIG highlights in this report, including its recommendations. Furthermore, OAR
appreciates the OIG's recommendations to further strengthen EPA's rulemaking process. OAR's
response to OIG's specific recommendation follows.

vjsBy
()fficc of Air and Radiation's Final Response to Office of Inspector General's report, EI*A
!¦ ailed to Develop Required Benefits tun! Cost Analysis wiii Aswss	on Children '''
Heath tor the Proptwd Glider Repeal Rule i<)A£"• F) l9-00SS)
Anne I , Jdsal
Assistant Administrator	•'>
Kevin C'hristensen
Assistant Inspector General
Office ol Audit and ('.valuation
Office of Inspector General

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Recommendation 1: For the proposed Glider Repeal Rule, per Executive Order 12866, [the AA
for OAR should] identify for the public (e.g., via the public docket) any substantive changes
between the draft submitted to the Office of Information and Regulatory Affairs for review and
the action subsequently announced, and any changes made at the suggestion or recommendation
of the Office of Information and Regulatory Affairs.
Response 1: EPA is committed to transparency in the rulemaking process and believes that
public input is critical to improving regulations. OAR, in consultation with the Office of Policy,
has reviewed the public rulemaking docket for the Glider Repeal Rule (EPA-HQ-OAR-2014-
0827-2368) to ensure it contains a complete record.
Planned Completion Date: Complete.
Recommendation 2: Should EPA finalize the glider repeal rulemaking, prior to issuance of the
final rule, [the AA for Air OAR should] conduct the required analyses to comply with Executive
Orders 12866 and 13045; include all analyses in the public docket; identify for the public any
substantive changes between the draft submitted to the Office of Information and Regulatory
Affairs for review and the action subsequently announced, and any changes made at the suggestion
or recommendation of the Office of Information and Regulatory Affairs; and provide the public a
means to comment on the analyses supporting the rulemaking.
Response 2: If EPA moves forward with a final action regarding the glider repeal rulemaking,
OAR plans to work with OP to follow Executive Orders 12866 and 13045 prior to issuing the final
action and provide the public an opportunity to comment on accompanying analyses supporting
the rulemaking. Furthermore, if EPA moves forward with a final action regarding the glider repeal
rulemaking, OAR plans to identify for the public any substantive changes between the draft
submitted to the Office of Information and Regulatory Affairs for review and the action
subsequently announced, and any changes made at the suggestion or recommendation of the Office
of Information and Regulatory Affairs.
Planned Completion Date: Complete.
Recommendation 3: [The AA for OAR should] document the decisions made during the glider
repeal rulemaking process, including substantive decisions reached orally, to comply with
applicable recordkeeping and docketing requirements, including those found in the Federal
Records Act, the EPA's Interim Records Management Policy, and the EPA's Action Development
Process guidance.
Response 3: OAR is committed to transparency is the rulemaking process. For any potential future
action, OAR agrees to work with OP to ensure that all internal decision documents created comply
with applicable recordkeeping and docketing requirements. Those include requirements found in
the Federal Records Act, the EPA's Interim Records Management Policy, and the EPA's Action
Development Process guidance.
Planned Completion Date: Complete.
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If you have any questions regarding this response, please contact William Charmley,
Director of the Assessment and Standards Division, Office of Transportation and Air Quality, at
(734)214-4466.
cc: Betsy Shaw
Sarah Dunham
Benjamin Hengst
Bill Nickerson
Marc Vincent
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Appendix D
Office of Air and Radiation's Revised Response to
Draft Report
,^DST^
i	\	UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\
vsa2,	WASHINGTON. D.Q. 20460
October 16, 2019
MEMORANDUM
OFFICE OF
AIR AND RADIATION
SUBJECT: Office of Air and Radiation's Final Response to Office of Inspector General's
report, EPA Failed to Develop Required Benefits and Cost Analysis and Assess
Impacts on Children s Health for the Proposed Glider Repeal Rule (OA&E-FY19-
0053)
FROM: Anne L. Idsal	/ J	?
Acting Assistant Administrator \v XCux/	/
TO:	Kevin Christensen
Assistant Inspector General
Office of Audit and Evaluation
Office of Inspector General
The EPA's Office of Air and Radiation (OAR) appreciates the opportunity to review and
comment on the Office of Inspector General's (OIG) report titled EPA Failed to Develop
Required Benefits and Cost Analysis and Assess Impacts on Children's Heath for the Proposed
Glider Repeal Ride (Draft Report).
The Clean Air Act requires the U.S. Environmental Protection Agency (EPA) to establish and
implement regulations to protect human health and the environment, including regulations to
control emissions from cars, trucks, and other mobile sources of air pollution. EPA's Office of
Transportation and Air Quality (OTAQ) within OAR fulfills this responsibility for EPA by
setting motor vehicle emission standards and by monitoring compliance with requirements.
OAR agrees with the principles of transparency and public participation in the rulemaking
process that the OIG highlights in this report, including its recommendations. Furthermore, OAR
appreciates the OIG's recommendations to further strengthen EPA's rulemaking process. OAR's
responses to OIG's specific recommendations are below.
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Recommendation 1: For the proposed Glider Repeal Rule, per Executive Order 12866, [the AA
for OAR should] identify for the public (e.g., via the public docket) any substantive changes
between the draft submitted to the Office of Information and Regulatory Affairs [OIRA] for
review and the action subsequently announced, and any changes made at the suggestion or
recommendation of the Office of Information and Regulatory Affairs.
Response 1: EPA is committed to the transparency of the rulemaking process and believes that
public input is critical to improving regulations. To address the OIG's concerns in this audit and
to provide further context for the draft submitted to OIRA and the redline drafts reflecting
subsequent substantive changes to the proposed Glider Repeal Rule that are already in the public
docket, EPA will draft and docket a memo explaining more clearly whether the change to the
proposed Glider Repeal Rule's designation from "economically significant" to "significant" was
made at the suggestion or recommendation of OIRA.
Planned Completion Date: End of Ql, FY 2020.
Recommendation 2: Should EPA finalize the glider repeal rulemaking, prior to issuance of the
final rule, [the AA for OAR should] conduct the required analyses to comply with Executive
Orders 12866 and 13045; include all analyses in the public docket; identify for the public any
substantive changes between the draft submitted to the Office of Information and Regulatory
Affairs for review and the action subsequently announced, and any changes made at the
suggestion or recommendation of the Office of Information and Regulatory Affairs; and provide
the public a means to comment on the analyses supporting the rulemaking.
Response 2: If EPA moves forward with a final action regarding the Glider Repeal rulemaking,
OAR will work with Office of Policy to follow Executive Orders 12866 and 13045 prior to
issuing the final action, and provide the public an opportunity to comment on accompanying
analyses supporting the rulemaking. Furthermore, if EPA moves forward with a final action
regarding the Glider Repeal rulemaking, OAR will identify for the public any substantive
changes between the draft submitted to OIRA for review and the action subsequently announced,
and any changes made at the suggestion or recommendation of OIRA.
Planned Completion Date: OAR anticipates any decision about the Glider Repeal rulemaking
status will be reflected in the Spring 2020 Regulatory Agenda (Q3, FY 2020).
Recommendation 3: [The AA for OAR should] document the decisions made during the glider
repeal rulemaking process, including substantive decisions reached orally, to comply with
applicable recordkeeping and docketing requirements, including those found in the Federal
Records Act, the EPA's Interim Records Management Policy, and the EPA's Action
Development Process guidance.
Response 3: Based on additional discussions with EPA's Office of General Counsel and in turn,
OIG, EPA has complied with all applicable recordkeeping requirements and provided supporting
documentation to the OIG on October 3, 2019. Regarding the docketing requirements specified
in this recommendation, please see EPA's response to Recommendation #1 above.
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Planned Completion Date: For the recordkeeping requirements specified in this recommendation,
this corrective action is complete. For the docketing requirements, see the Planned Completion
Date for Recommendation #1.
If you have any questions regarding this response, please contact William Charmley, Director of
the Assessment and Standards Division, Office of Transportation and Air Quality, at (734) 214-
4466.
Cc: Betsy Shaw
Sarah Dunham
Ben Hengst
Bill Nickerson
Marc Vincent
Julia Burch
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Appendix E
Distribution
The Administrator
Assistant Deputy Administrator
Associate Deputy Administrator
Chief of Staff
Deputy Chief of Staff
Assistant Administrator for Air and Radiation
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Policy
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Director, Office of Continuous Improvement, Office of the Administrator
Deputy Assistant Administrator for Air and Radiation
Senior Advisor to the Assistant Administrator, Office of Air and Radiation
Director, Office of Transportation and Air Quality, Office of Air and Radiation
Principal Deputy General Counsel
Deputy General Counsel
Agency Ethics Official, Office of General Counsel
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Air and Radiation
Audit Follow-Up Coordinator, Office of Transportation and Air Quality,
Office of Air and Radiation
Audit Follow-Up Coordinator, Office of General Counsel
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