83_FR_27638 83 FR 27524 - Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process

83 FR 27524 - Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 114 (June 13, 2018)

Page Range27524-27528
FR Document2018-12707

EPA promulgates regulations under authority provided in the federal environmental statutes such as the Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), and many others. Most statutory provisions require or allow some consideration of cost and benefits when setting pollution standards, but there is variation in terminology and specificity provided in each law regarding the nature and scope of the cost and benefit considerations. In this advance notice of proposed rulemaking (ANPRM), EPA is soliciting comment on whether and how EPA should promulgate regulations that provide a consistent and transparent interpretation relating to the consideration of weighing costs and benefits in making regulatory decisions in a manner consistent with applicable authorizing statutes. EPA is also soliciting comment on whether and how these regulations, if promulgated, could also prescribe specific analytic approaches to quantifying the costs and benefits of EPA regulations. This ANPRM does not propose any regulatory requirements.

Federal Register, Volume 83 Issue 114 (Wednesday, June 13, 2018)
[Federal Register Volume 83, Number 114 (Wednesday, June 13, 2018)]
[Proposed Rules]
[Pages 27524-27528]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-12707]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Ch. I

[EPA-HQ-OA-2018-0107; FRL-9979-41-OP]
RIN 2010-AA12


Increasing Consistency and Transparency in Considering Costs and 
Benefits in the Rulemaking Process

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: EPA promulgates regulations under authority provided in the 
federal environmental statutes such as the Clean Air Act (CAA), Clean 
Water Act (CWA), Safe Drinking Water Act (SDWA), and many others. Most 
statutory provisions require or allow some consideration of cost and 
benefits when setting pollution standards, but there is variation in 
terminology and specificity provided in each law regarding the nature 
and scope of the cost and benefit considerations. In this advance 
notice of proposed rulemaking (ANPRM), EPA is soliciting comment on 
whether and how EPA should promulgate regulations that provide a 
consistent and transparent interpretation relating to the consideration 
of weighing costs and benefits in making regulatory decisions in a 
manner consistent with applicable authorizing statutes. EPA is also 
soliciting comment on whether and how these regulations, if 
promulgated, could also prescribe specific analytic approaches to 
quantifying the costs and benefits of EPA regulations. This ANPRM does 
not propose any regulatory requirements.

DATES: Comments must be received on or before July 13, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2018-0107 at http://www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. EPA may publish any comment received to 
its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For further information on this 
document, please contact Elizabeth Kopits,

[[Page 27525]]

National Center for Environmental Economics, Office of Policy, 1200 
Pennsylvania Avenue NW, Mail Code 1809T, Washington, DC 20460, Phone: 
(202) 566-2299; [email protected].

SUPPLEMENTARY INFORMATION: This notice is organized as follows:

I. Background
II. Topics for Which EPA Is Seeking Input
    A. The Nature of Potential Problems of Inconsistency and Lack of 
Transparency
    B. Possible Approaches for Increasing Consistency and 
Transparency in Considering Costs and Benefits in the Rulemaking 
Process
    C. Potential for Issuing Regulations To Govern EPA's Approach in 
Future Rulemakings
III. Statutory and Executive Order Review

I. Background

    EPA promulgates regulations to protect public health and the 
environment under authority provided in the federal environmental 
statutes that it implements, such as the CAA, CWA, SDWA, and many 
others. The specific authorities given to the Administrator are 
established in various sections and subsections of each statute, which 
range from broad authority (e.g., to protect public health with an 
adequate margin of safety) to detailed requirements that specify 
standards or require that standards be at least as stringent as the 
best controlled similar source. In addition to legislative direction, 
regulatory agencies also take direction from the President and the 
Office of Management and Budget within the Executive Office of the 
President regarding what type of formal regulatory evaluation should be 
performed during rulemaking. For decades, Presidents have issued orders 
providing instruction to agencies concerning the consideration of 
benefits and costs in regulatory analysis.\1\ Executive Order 12866, 
Regulatory Planning and Review, requires an assessment of benefits and 
costs for all significant regulatory actions--with benefits and costs 
expressed in quantitative terms to the extent feasible--and instructs 
agencies that, to the extent permitted by law, regulatory actions 
should have benefits that justify their costs (58 FR 51735, October 4, 
1993).\2\
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    \1\ This became more formalized in 1981 with Executive Order 
12291 which required executive agencies to perform a cost-benefit 
analysis for all major rules and centralized the regulatory review 
process by directing the Office of Management and Budget (OMB) to 
serve as a central clearinghouse for the review of agency 
regulations.
    \2\ Over the past decade, the estimated costs and benefits 
resulting from EPA regulations have been the highest within the 
federal government. See Table 1-1 of the Office of Information and 
Regulatory Affairs' (OIRA) 2017 Draft Report to Congress on the 
Benefits and Costs of Federal Regulations and Agency Compliance with 
Unfunded Mandates Reform Act.
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    OMB's Circular A-4 \3\ and EPA's Guidelines for Preparing Economic 
Analyses \4\ provides the Agency with peer-reviewed guidance on how to 
conduct the analysis of regulatory actions to comply with E.O. 12866 
and other executive orders and statutory requirements (e.g., Small 
Business Regulatory Enforcement Fairness Act of 1996 considerations). 
EPA's Guidelines establish a scientific framework for analyzing the 
benefits, costs, and economic impacts of regulations and policies, 
including assessing the distribution of costs and benefits among 
various segments of the population. They incorporate recent advances in 
theoretical and applied work in the field of environmental 
economics.\5\ In this ANPRM, EPA is taking comment on the role that 
regulatory analysis or aspects of that analysis play in decision making 
consistent with statutory direction, not what these existing guidance 
documents recommend about how best to conduct the underlying analysis 
of regulatory actions.
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    \3\ https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
    \4\ https://www.epa.gov/environmental-economics/guidelines-preparing-economic-analyses.
    \5\ All chapters undergo an external peer review prior to 
finalization, either through the EPA's Science Advisory Board 
Environmental Economics Advisory Committee or through independent 
reviews by external experts. OMB's Circular A4 also underwent 
extensive review before being finalized. Circular A-4 was subject to 
public comment, interagency review and external expert peer review.
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    Most statutory provisions require or allow some consideration of 
cost and benefits when setting regulatory standards to achieve public 
health and environmental benefits, but there can be a significant 
variation in terminology and specificity provided in each law regarding 
the nature and scope of cost and benefit considerations. For example, 
Section 301 of the CWA instructs the Administrator to select the ``best 
available technology economically achievable'' (33 U.S.C. 
1311(b)(2)(A)), and then requires EPA to take into account the cost of 
achieving effluent reductions when assessing best available technology 
(33 U.S.C. 1314(b)(2)(B)). Section 111 of the CAA, however, requires 
the Administrator to set ``standards of performance'' for reducing air 
pollution (42 U.S.C. 7411), defined as ``the best system of emission 
reduction which (taking into account the cost of achieving such 
reduction and any non-air quality health and environmental impact and 
energy requirements) the Administrator determines has been adequately 
demonstrated'' (42 U.S.C. 111(a)(1)). Other provisions may only 
implicitly direct EPA to consider costs, alone or in conjunction with 
benefits and other factors, or be silent on whether costs should or may 
be considered.
    Virtually all environmental statutes leave the specifics on how 
costs and benefits are to be considered to EPA. The Agency interprets 
the terms used in the relevant statute and decides how best to weigh 
costs against benefits and other factors in making regulatory 
decisions. A few statutory provisions require that specific metrics 
(e.g., particular price changes) be included among the ``costs'' to be 
considered (see e.g., Federal Insecticide, Fungicide, and Rodenticide 
Act (FIFRA), 7 U.S.C. 6(b)),\6\ but in most provisions ``costs'', 
``economic factors'', and similar terms remain undefined and are 
included as one item of unspecified weight among a list of multiple 
factors that EPA is required to consider (e.g., CWA, 33 U.S.C. 
304(b)(2)(B); CWA, 33 U.S.C. 1314(b)(2)(B); CAA, 42 U.S.C. 111(b)(1)(B) 
and 42 U.S.C. 111(a)(1) \7\). Even when Congress does include statutory 
language to indicate how EPA should weigh cost considerations against 
benefits and other relevant factors, there is considerable variation in 
the language used and the statutory instruction provides little, if 
any, direction on what constitutes ``appropriate consideration'', 
``reasonableness'', ``practicable'',

[[Page 27526]]

``achievable'', a ``feasible'' threshold, and related terms.
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    \6\ FIFRA section 6(b) elaborates on the costs to be taken into 
account in cancellation of agricultural pesticide registrations by 
making clear that ``the Administrator shall include among those 
factors to be taken into account the impact of the action proposed 
in such notice on production and prices of agricultural commodities, 
retail food prices, and otherwise on the agricultural economy.'' 
(Emphasis added.)
    \7\ CWA Section 304(b)(2)(B), 33 U.S.C. 1314(b)(2)(B), states 
that ``Factors relating to the assessment of best available 
technology shall take into account the age of equipment and 
facilities involved, the process employed, the engineering aspects 
of the application of various types of control techniques, process 
changes, the cost of achieving such effluent reduction, non-water 
quality environmental impact (including energy requirements), and 
such other factors as the Administrator deems appropriate.'' 
(Emphasis added.) CAA Section 111(b)(1)(B), 42 U.S.C. 7411(b)(1)B), 
requires EPA to set standards of performance for certain categories 
of new stationary sources, where Section 111(a)(1), id. Sec.  
7411(a)(1), defines ``standard of performance'' as ``a standard for 
emissions of air pollutants which reflects the degree of emission 
limitation achievable through the application of the best system of 
emission reduction which (taking into account the cost of achieving 
such reduction and any nonair quality health and environmental 
impact and energy requirements) the Administrator determines has 
been adequately demonstrated.'' (Emphasis added.)
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    This has resulted in a variety of concepts of `costs' that may be 
considered across statutes and even under the same statute. These 
concepts include many different metrics that estimate financial impacts 
to the regulated entity, e.g., direct costs for compliance activities 
incurred by a regulated entity, compliance cost per ton of pollutant 
reduced, the number of regulated facilities that may go out of business 
as a result of the proposed regulation, or compliance cost as a percent 
of firm revenues. EPA's Regulatory Impact Analyses (RIAs), as guided by 
its Economic Guidelines, typically also quantify the standard economic 
measure of cost used in benefit-cost analysis -i.e., the broader 
concept of the ``social cost'' of the regulation (the sum of all 
opportunity costs incurred as a result of a regulation)--and ultimately 
reach an estimate of ``net benefits'' (social benefits minus social 
costs).
    For many of EPA's regulatory programs, the courts have weighed in 
on the scope of costs to be considered during the development of a 
regulation. For example, in Michigan v. EPA, 135 S. Ct. 2699, 192 
L.Ed.2d 674 (2015), the Supreme Court held that EPA is required to 
consider costs when determining whether it is ``appropriate and 
necessary'' to regulate power plants under CAA section 112 (42 U.S.C. 
7412(n)(1)(A)), and indicated that ``cost'' can extend well beyond 
financial outlays by regulated entities to include all of the negative 
repercussions of this action, whether economic or otherwise (135 S. Ct. 
at 2707). Many court rulings acknowledge the discretion provided to the 
agency in how relevant factors are measured and weighed. For example, 
in 2009, the US Supreme Court ruled in Entergy Corporation et al. v. 
Riverkeeper, Inc. that EPA may use cost-benefit analysis in setting 
standards and issuing permits under Section 316(b) of the CWA.
    Many technical and practical factors play a role in how EPA 
implements statutory instruction related to cost considerations in 
regulatory decisions. Any assessment of costs (and benefits) is limited 
by the state of scientific and economic modeling, quantification 
methods, and available data--all of which change over time and across 
industries and sectors of the economy. Similarly, statutory authority 
to collect information from regulated industries varies, and in some 
cases EPA may choose not to exercise that authority in order to reduce 
the costs of data collection to the regulated entity (relying instead 
on voluntary provision of information or publicly-available data, or 
simply doing without data where the burden appears to outweigh the 
data's anticipated utility). In these instances, EPA may be limited in 
what cost metrics can be used for a specific regulatory decision and 
may not be able to use identical cost considerations across rules. A 
lack of data and a lack of a regular process for ongoing or 
retrospective review after rules have been implemented \8\ also 
inhibits EPA's ability to gain insights about the realized costs and 
benefits of actions that may help inform how it considers costs and 
other factors in future rulemakings. Finally, industry or sector 
specific factors may play a role, as some metrics may be more or less 
relevant to the affected industries, sectors, or question at hand. For 
example, potential plant closures is a metric sometimes used to measure 
a potential impact and inform stakeholders about regulatory actions on 
some industries (e.g., manufacturing industries dominated by privately-
owned businesses), but this may not be an appropriate or viable measure 
of a potential financial impact for other types of regulated entities 
(e.g., some wastewater treatment plants, or electric power plants that 
are not otherwise economical must still operate to ensure adequate 
reliability of the system).
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    \8\ Many previous administrations have periodically undertaken 
programs of retrospective review or issued executive orders urging 
agencies to reassess existing regulations and eliminate, modify, or 
strengthen those regulations that have become outmoded in light of 
changed circumstances. Agencies are also subject to some limited 
regulatory lookback requirements mandated by statute, but for the 
most part retrospective review has not become institutionalized 
practice within EPA nor other regulatory agencies as has prospective 
review (such as ex ante benefit-cost analysis conducted under 
Executive Order 12866).
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    EPA regularly receives much public comment related to how costs and 
benefits are considered in decision making. On April 13, 2017, in 
accordance with Executive Order 13777, ``Enforcing the Regulatory 
Reform Agenda,'' EPA issued a request for comment on regulations that 
may be appropriate for repeal, replacement, or modification.\9\ While 
that solicitation was broad in scope and generated comments on a myriad 
of regulatory reform issues, one common theme in many industry comments 
related to how the Agency considers cost in developing its regulations. 
For example, some commenters argued that the approach of considering 
compliance cost divided by the total emission reductions (i.e., summing 
across pollutants) resulted in controls that appear cost-effective that 
may not have been deemed cost-effective if each pollutant was 
considered separately. Such a situation arose in in consideration of 
the best system of emissions reductions (BSER) for the Oil and Natural 
Gas NSPS (81 FR 35823, June 3, 2016). Other commenters argued in past 
rulemakings the Agency has justified the stringency of a standard based 
on the estimated benefits from reductions in pollutants not directly 
regulated by the action (i.e., ``ancillary benefits'' or ``co-
benefits'').\10\ For example, in the Mercury and Air Toxics Standards 
(MATS) rule (77 FR 9304, February 16, 2012), the monetized benefits 
from one of the pollutants being directly regulated (i.e., mercury) 
were significantly lower than the estimated costs of the rule, and the 
quantified benefits in the regulatory impact analysis outweighed the 
costs because of the benefits from reductions in ambient fine 
particulate matter (82 FR 16736, April 6, 2017). Similar criticisms 
have been made regarding the extent to which EPA has considered key 
uncertainties, baseline assumptions, and other analytical factors in 
quantifying both benefits and costs relevant to decision making.
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    \9\ See Federal Register notice: Evaluation of Existing 
Regulations (82 FR 17793). The comment period closed on May 15, 2017 
and EPA received over 460,000 comments. All public comments are 
accessible online in our docket on the Regulations.gov website 
identified by Docket ID No. EPA-HQ-OA-2017-0190.
    \10\ OMB Circular A-4 defines ancillary benefit as ``a favorable 
impact of the rule that is typically unrelated or secondary to the 
statutory purpose of the rulemaking (e.g., reduced refinery 
emissions due to more stringent fuel economy standards for light 
trucks) while a countervailing risk is an adverse economic, health, 
safety, or environmental consequence that occurs due to a rule and 
is not already accounted for in the direct cost of the rule (e.g., 
adverse safety impacts from more stringent fuel-economy standards 
for light trucks). You should begin by considering and perhaps 
listing the possible ancillary benefits and countervailing risks . . 
. . Analytic priority should be given to those ancillary benefits 
and countervailing risks that are important enough to potentially 
change the rank ordering of the main alternatives in the analysis. 
In some cases the mere consideration of these secondary effects may 
help in the generation of a superior regulatory alternative with 
strong ancillary benefits and fewer countervailing risks . . . . 
Like other benefits and costs, an effort should be made to quantify 
and monetize ancillary benefits and countervailing risks.'' (OMB 
2003).
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    The purpose of this ANPRM is to request more information about the 
nature and extent of issues raised by stakeholders regarding EPA 
practices in considering costs and benefits in the rulemaking process, 
and to solicit comment on potential approaches that would provide 
improved consistency and transparency. EPA specifically seeks comment 
on whether, and if so, how EPA should promulgate regulations

[[Page 27527]]

that specify how the Agency will approach its consideration of costs 
and benefits in setting pollution standards, consistent with statutory 
direction.

II. Topics for Which EPA Is Seeking Input

    EPA is requesting comments regarding perceived inconsistency and 
lack of transparency in how the Agency considers costs and benefits in 
rulemaking, potential approaches for addressing these concerns, and the 
scope for issuing regulations to govern EPA's approach in future 
rulemakings. Questions pertaining to each of these topics are provided 
below. EPA invites comments on all aspects of this ANPRM. Comments 
should provide enough detail and contain sufficient supporting 
information (e.g., citations to published studies and or data related 
to your comments) in order for the Agency to understand the issues 
raised and give them the fullest consideration.

A. The Nature of Potential Concerns Regarding Perceived Inconsistency 
and Lack of Transparency

    EPA requests more information about the nature and extent of the 
concerns relating to possible inconsistency and lack of transparency in 
considering costs and benefits in the rulemaking process. The most 
helpful comments would provide specific examples with context and 
specify relevant statutory provisions. What impact could greater 
consistency or transparency have on regulated entities, states, tribes, 
and localities, and the public?

B. Potential Approaches for Increasing Consistency and Transparency in 
Considering Costs and Benefits in the Rulemaking Process

    EPA requests comment on approaches for increasing consistency and 
transparency when and how EPA considers cost and benefits in setting 
pollution standards, consistent with statutory direction.

    1. What would increased consistency look like?
    a. Given statutory constraints, how could EPA more consistently 
adhere to existing guidance on benefit-cost analysis principles, 
definitions and analytical techniques whether across the entire 
agency or specific programs? For example, to what extent, if any, 
should EPA develop a regulatory action that commits the Agency to 
following its existing peer-reviewed guidance documents on risk 
assessment \11\ and Guidelines for Preparing Economic Analysis \12\ 
when developing future rulemakings?
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    \11\ https://www.epa.gov/risk/risk-assessment-guidelines.
    \12\ https://www.epa.gov/environmental-economics/guidelines-preparing-economic-analyses.
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    b. Should EPA consider adopting uniform definitions of specific 
terms used in statutes--e.g., ``cost,'' ``benefit,'' ``economic 
factors,'' ``reasonable,'' ``appropriate,'' and ``weight of 
scientific evidence''--and specifying ex ante how they will be 
factored into subsequent regulatory decisions?'' How should EPA 
approach the scope of the uniformity of these definitions (e.g., 
within a particular regulatory program; within statute; across 
statutes)?
    c. To what extent should standard benefit-cost analysis 
principles (e.g., setting a standard to maximize net benefits) guide 
the selection of specific statutorily required metrics and 
thresholds (e.g., ``reasonableness'') against which to measure the 
effects of a proposed regulation?
    d. What improvements would result from a general rule that 
specifies how the Agency will factor the outcomes or key elements of 
the benefit-cost analysis into future decision making? For example, 
to what extent should EPA develop a general rule on how the Agency 
will weigh the benefits from reductions in pollutants that were not 
directly regulated (often called ``co-benefits'' or ``ancillary 
benefits'') or how it will weigh key analytical issues (e.g., 
uncertainty, baseline assumptions, limited environmental modeling, 
treatment of regulating multiple pollutants within one regulatory 
action) when deciding the stringency of future regulations? In 
addition, frequently scientific understanding is not adequate either 
to quantify or to monetize the effects of some pollutants or other 
impacts. How should these potentially important but non-quantified 
and/or non-monetized effects be included in decision making?
    e. To what extent would it be helpful for EPA to require 
consideration of cumulative regulatory costs and benefits of 
multiple regulations during the rulemaking process, including how 
such consideration may affect the design or implementation of a 
regulation (i.e., longer or different compliance timeframes)?
    2. What would improved transparency look like?
    a. How might the documentation of how EPA considered costs and 
benefits in a regulatory decision be improved from current 
practices?
    b. In what ways can EPA increase transparency about the 
decision-making process in cases where the decision was based on 
information that is barred from release by law?
    3. To what extent would requiring a systematic retrospective 
review element in new regulations help to provide ongoing 
consistency and transparency in how regulatory decision making will 
adapt over time to new information? Such a requirement might provide 
a more regular and systematic approach to ex-post (i.e. after 
regulations have been promulgated and become effective) evaluation 
of the costs and benefits of EPA regulations, as compared with the 
periodic regulatory reviews the EPA has historically conducted.\13\ 
This might help identify needed revisions, inform future regulatory 
approaches, and improve methods of ex ante analysis.
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    \13\ It would also supplement existing statutory requirements 
for periodic review of the adequacy of standards or guidelines 
(e.g., CAA 42 U.S.C. Sec.  109(d)(1); CWA 33 U.S.C. Sec.  304(b)).
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    a. What are the opportunities and challenges associated with 
issuing regulations to require retrospective analysis and the 
concomitant need to collect data in order to conduct a meaningful 
retrospective analysis? Would it be more challenging under some 
provisions of key environmental statutes? If so, which ones?
    b. What criteria should EPA use to determine when retrospective 
review is needed? For example, should selection criteria be tied to 
the estimated impacts of the regulation, the degree of uncertainty 
at the time of ex ante analysis, the extent to which retrospective 
analysis will be feasible/successful?
    c. How specific should prospective plans for such a review be? 
For example, should plans specify the methodology that will be used, 
the coverage or scope of the analysis, the data that will be used 
and data collection plans?

C. Potential for Issuing Regulations To Govern EPA's Approach in Future 
Rulemakings

    EPA requests comment on opportunities and challenges associated 
with promulgating regulations to govern EPA's approach to cost and 
benefit considerations in future rulemakings. EPA is soliciting comment 
on whether and how best to develop such regulations.

    1. What are the most pressing economic or legal considerations 
that should be taken into account when deciding the appropriate 
level of specificity (all activities, by statute, by specific 
statutory provision) at which to formulate regulations?
    2. What are the opportunities and challenges with issuing 
regulations to govern EPA's practice when statutory provisions do 
not mention costs or imply these are factors to be considered 
alongside benefits and other factors when setting pollution 
standards?
    3. How can EPA best promote more consistency and predictability 
while still leaving room for consideration of regulatory context and 
for flexibility to adapt to new information and methodological 
advances?
    4. In cases where current EPA practice reflects prior judicial 
decisions, a change in course may come with significant burden to 
the Agency. Is there a way to address this concern in regulations 
governing the consideration of costs and benefits?
    5. Are there ways to improve consistency and transparency using 
methods other than a regulatory approach (e.g., additional 
guidance)? What are the opportunities and challenges associated with 
these approaches?
    6. Are any of the opportunities and challenges identified above 
specific to a

[[Page 27528]]

particular statute or statutes? If so, please provide examples.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this is a ``significant 
regulatory action'' because the action raises novel legal or policy 
issues. Accordingly, EPA has submitted this action to the Office of 
Management and Budget (OMB) for review under Executive Order 12866 and 
any changes made in response to OMB recommendations have been 
documented in the docket for this action. Because this action does not 
propose or impose any requirements, and instead seeks comments and 
suggestions for the agency to consider in possibly developing a 
subsequent proposed rule, the various statutes and Executive Orders 
that normally apply to rulemaking do not apply in this case. Should EPA 
subsequently determine to pursue a rulemaking, EPA will address the 
statues and Executive Orders as applicable to that rulemaking.

    Dated: June 7, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-12707 Filed 6-12-18; 8:45 am]
 BILLING CODE 6560-50-P



                                                27524                 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Proposed Rules

                                                procedure replaces the hybrid                           using actual data at the cost pool level.’’            ACTION:Advance notice of proposed
                                                approach’s proxy incremental costs with                 Id. However, ‘‘since the very reason we                rulemaking.
                                                actual estimation of the incremental                    must rely on the approximation is
                                                costs of international products. Id. at 7.              because such actual data at that level do              SUMMARY:    EPA promulgates regulations
                                                The Postal Service comments that                        not exist, that theoretical baseline does              under authority provided in the federal
                                                ‘‘[t]his alone constitute[s] a clear                    not exist either.’’ Id.                                environmental statutes such as the
                                                improvement over past practice.’’ Id. at                                                                       Clean Air Act (CAA), Clean Water Act
                                                6. Furthermore, the Postal Service notes                III. Notice and Comment                                (CWA), Safe Drinking Water Act
                                                that the change will allow ‘‘the                           The Commission establishes Docket                   (SDWA), and many others. Most
                                                incremental cost model to directly                      No. RM2018–6 for consideration of                      statutory provisions require or allow
                                                estimate the costs of producing all                     matters raised by the Petition. More                   some consideration of cost and benefits
                                                competitive products simultaneously,                    information on the Petition may be                     when setting pollution standards, but
                                                and thus provide exactly the                            accessed via the Commission’s website                  there is variation in terminology and
                                                information needed to fully conduct the                 at http://www.prc.gov. Interested                      specificity provided in each law
                                                cross-subsidy test as intended.’’ Id. at 7.             persons may submit comments on the                     regarding the nature and scope of the
                                                   The Postal Service estimates that the                Petition and Proposal Three no later                   cost and benefit considerations. In this
                                                impact of procedure one would be to                     than June 29, 2018. Pursuant to 39                     advance notice of proposed rulemaking
                                                raise competitive product incremental                   U.S.C. 505, Katalin K. Clendenin is                    (ANPRM), EPA is soliciting comment on
                                                costs by 0.2 percent. Id. at 7–8. The                   designated as an officer of the                        whether and how EPA should
                                                Postal Service estimates that amount to                 Commission (Public Representative) to                  promulgate regulations that provide a
                                                be approximately $25 million. Id.                       represent the interests of the general                 consistent and transparent
                                                   The Postal Service argues that                       public in this proceeding.                             interpretation relating to the
                                                procedure two’s proposed thresholds                                                                            consideration of weighing costs and
                                                are appropriate because its testing                     IV. Ordering Paragraphs                                benefits in making regulatory decisions
                                                suggests that NSAs ‘‘have no                              It is ordered:                                       in a manner consistent with applicable
                                                appreciable inframarginal costs’’ below                   1. The Commission establishes Docket                 authorizing statutes. EPA is also
                                                these thresholds. Id. at 11. The Postal                 No. RM2018–6 for consideration of the                  soliciting comment on whether and how
                                                Service argues that ‘‘when a product has                matters raised by the Petition of the                  these regulations, if promulgated, could
                                                a very small volume relative to the other               United States Postal Service for the                   also prescribe specific analytic
                                                products handled in the activity or cost                Initiation of a Proceeding to Consider                 approaches to quantifying the costs and
                                                pool, the product’s volume variable cost                Proposed Changes in Analytical                         benefits of EPA regulations. This
                                                and incremental cost will virtually be                  Principles (Proposal Three), filed June 1,             ANPRM does not propose any
                                                the same.’’ Id. at 9. For that reason, the              2018.                                                  regulatory requirements.
                                                Postal Service avers that ‘‘the                           2. Comments by interested persons in                 DATES: Comments must be received on
                                                calculation of incremental costs for the                this proceeding are due no later than                  or before July 13, 2018.
                                                hundreds of domestic NSA’s with                         June 29, 2018.                                         ADDRESSES: Submit your comments,
                                                minimal volumes would require a                           3. Pursuant to 39 U.S.C. 505, the                    identified by Docket ID No. EPA–HQ–
                                                material amount of scarce Postal Service                Commission appoints Katalin K.
                                                resources, and the resulting incremental                                                                       OA–2018–0107 at http://
                                                                                                        Clendenin to serve as an officer of the                www.regulations.gov. Follow the online
                                                cost estimates for those products would                 Commission (Public Representative) to
                                                not be practically different from their                                                                        instructions for submitting comments.
                                                                                                        represent the interests of the general                 Once submitted, comments cannot be
                                                volume variable costs.’’ Id. at 12. The                 public in this docket.
                                                Postal Service concludes that it and the                                                                       edited or removed from Regulations.gov.
                                                                                                          4. The Secretary shall arrange for                   EPA may publish any comment received
                                                Commission ‘‘are better served when the                 publication of this order in the Federal
                                                Postal Service expends those resources                                                                         to its public docket. Do not submit
                                                                                                        Register.                                              electronically any information you
                                                on other, critical, costing issues.’’ Id.
                                                   With regard to procedure two’s                         By the Commission.                                   consider to be Confidential Business
                                                proposed cost driver change, the Postal                 Stacy L. Ruble,                                        Information (CBI) or other information
                                                Service states that it ‘‘is not possible                Secretary.                                             whose disclosure is restricted by statute.
                                                . . . to generate the required cost driver              [FR Doc. 2018–12646 Filed 6–12–18; 8:45 am]
                                                                                                                                                               Multimedia submissions (audio, video,
                                                proportions for specific NSA products.’’                                                                       etc.) must be accompanied by a written
                                                                                                        BILLING CODE 7710–FW–P
                                                Id. at 13. For this reason, the Postal                                                                         comment. The written comment is
                                                Service proposes to use ‘‘the volume                                                                           considered the official comment and
                                                variable cost ratio as a proxy for the                                                                         should include discussion of all points
                                                                                                        ENVIRONMENTAL PROTECTION                               you wish to make. EPA will generally
                                                unknown true variable, the ratio of the
                                                                                                        AGENCY                                                 not consider comments or comment
                                                cost drivers.’’ Id. at 17. In the Postal
                                                Service’s view ‘‘the approximation used                                                                        contents located outside of the primary
                                                                                                        40 CFR Ch. I                                           submission (i.e., on the web, cloud, or
                                                for the missing driver ratios should
                                                reflect the characteristics of the missing              [EPA–HQ–OA–2018–0107; FRL–9979–41–                     other file sharing system). For
                                                information as well as possible.’’ Id. at               OP]                                                    additional submission methods, the full
                                                13.                                                                                                            EPA public comment policy,
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                                                   The Postal Service states that the                   RIN 2010–AA12                                          information about CBI or multimedia
                                                impacts associated with procedure two                                                                          submissions, and general guidance on
                                                                                                        Increasing Consistency and                             making effective comments, please visit
                                                are ‘‘less clear cut’’ than procedure one               Transparency in Considering Costs
                                                because ‘‘there is no intuitive baseline                                                                       https://www.epa.gov/dockets/
                                                                                                        and Benefits in the Rulemaking                         commenting-epa-dockets.
                                                against which to compare [results].’’ Id.               Process
                                                at 20. The Postal Service explains that                                                                        FOR FURTHER INFORMATION CONTACT: For
                                                ‘‘[i]n theory, the logical baseline would               AGENCY: Environmental Protection                       further information on this document,
                                                be actual inframarginal costs calculated                Agency (EPA).                                          please contact Elizabeth Kopits,


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                                                                       Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Proposed Rules                                                     27525

                                                National Center for Environmental                          OMB’s Circular A–4 3 and EPA’s                      requirements) the Administrator
                                                Economics, Office of Policy, 1200                       Guidelines for Preparing Economic                      determines has been adequately
                                                Pennsylvania Avenue NW, Mail Code                       Analyses 4 provides the Agency with                    demonstrated’’ (42 U.S.C. 111(a)(1)).
                                                1809T, Washington, DC 20460, Phone:                     peer-reviewed guidance on how to                       Other provisions may only implicitly
                                                (202) 566–2299; kopits.elizabeth@                       conduct the analysis of regulatory                     direct EPA to consider costs, alone or in
                                                epa.gov.                                                actions to comply with E.O. 12866 and                  conjunction with benefits and other
                                                SUPPLEMENTARY INFORMATION:     This                     other executive orders and statutory                   factors, or be silent on whether costs
                                                notice is organized as follows:                         requirements (e.g., Small Business                     should or may be considered.
                                                                                                        Regulatory Enforcement Fairness Act of
                                                I. Background                                                                                                     Virtually all environmental statutes
                                                                                                        1996 considerations). EPA’s Guidelines
                                                II. Topics for Which EPA Is Seeking Input                                                                      leave the specifics on how costs and
                                                                                                        establish a scientific framework for
                                                   A. The Nature of Potential Problems of                                                                      benefits are to be considered to EPA.
                                                                                                        analyzing the benefits, costs, and
                                                      Inconsistency and Lack of Transparency                                                                   The Agency interprets the terms used in
                                                   B. Possible Approaches for Increasing                economic impacts of regulations and
                                                                                                                                                               the relevant statute and decides how
                                                      Consistency and Transparency in                   policies, including assessing the
                                                                                                                                                               best to weigh costs against benefits and
                                                      Considering Costs and Benefits in the             distribution of costs and benefits among
                                                                                                                                                               other factors in making regulatory
                                                      Rulemaking Process                                various segments of the population.
                                                                                                        They incorporate recent advances in                    decisions. A few statutory provisions
                                                   C. Potential for Issuing Regulations To
                                                      Govern EPA’s Approach in Future                   theoretical and applied work in the field              require that specific metrics (e.g.,
                                                      Rulemakings                                       of environmental economics.5 In this                   particular price changes) be included
                                                III. Statutory and Executive Order Review               ANPRM, EPA is taking comment on the                    among the ‘‘costs’’ to be considered (see
                                                                                                        role that regulatory analysis or aspects               e.g., Federal Insecticide, Fungicide, and
                                                I. Background                                           of that analysis play in decision making               Rodenticide Act (FIFRA), 7 U.S.C.
                                                   EPA promulgates regulations to                       consistent with statutory direction, not               6(b)),6 but in most provisions ‘‘costs’’,
                                                protect public health and the                           what these existing guidance documents                 ‘‘economic factors’’, and similar terms
                                                environment under authority provided                    recommend about how best to conduct                    remain undefined and are included as
                                                in the federal environmental statutes                   the underlying analysis of regulatory                  one item of unspecified weight among a
                                                that it implements, such as the CAA,                    actions.                                               list of multiple factors that EPA is
                                                CWA, SDWA, and many others. The                            Most statutory provisions require or                required to consider (e.g., CWA, 33
                                                specific authorities given to the                       allow some consideration of cost and                   U.S.C. 304(b)(2)(B); CWA, 33 U.S.C.
                                                Administrator are established in various                benefits when setting regulatory                       1314(b)(2)(B); CAA, 42 U.S.C.
                                                sections and subsections of each statute,               standards to achieve public health and                 111(b)(1)(B) and 42 U.S.C. 111(a)(1) 7).
                                                which range from broad authority (e.g.,                 environmental benefits, but there can be               Even when Congress does include
                                                to protect public health with an                        a significant variation in terminology                 statutory language to indicate how EPA
                                                adequate margin of safety) to detailed                  and specificity provided in each law                   should weigh cost considerations
                                                requirements that specify standards or                  regarding the nature and scope of cost                 against benefits and other relevant
                                                require that standards be at least as                   and benefit considerations. For                        factors, there is considerable variation
                                                stringent as the best controlled similar                example, Section 301 of the CWA                        in the language used and the statutory
                                                source. In addition to legislative                      instructs the Administrator to select the              instruction provides little, if any,
                                                direction, regulatory agencies also take                ‘‘best available technology economically               direction on what constitutes
                                                direction from the President and the                    achievable’’ (33 U.S.C. 1311(b)(2)(A)),                ‘‘appropriate consideration’’,
                                                Office of Management and Budget                         and then requires EPA to take into                     ‘‘reasonableness’’, ‘‘practicable’’,
                                                within the Executive Office of the                      account the cost of achieving effluent
                                                President regarding what type of formal                 reductions when assessing best                           6 FIFRA section 6(b) elaborates on the costs to be

                                                                                                        available technology (33 U.S.C.                        taken into account in cancellation of agricultural
                                                regulatory evaluation should be                                                                                pesticide registrations by making clear that ‘‘the
                                                performed during rulemaking. For                        1314(b)(2)(B)). Section 111 of the CAA,                Administrator shall include among those factors to
                                                decades, Presidents have issued orders                  however, requires the Administrator to                 be taken into account the impact of the action
                                                providing instruction to agencies                       set ‘‘standards of performance’’ for                   proposed in such notice on production and prices
                                                                                                        reducing air pollution (42 U.S.C. 7411),               of agricultural commodities, retail food prices, and
                                                concerning the consideration of benefits                                                                       otherwise on the agricultural economy.’’ (Emphasis
                                                and costs in regulatory analysis.1                      defined as ‘‘the best system of emission               added.)
                                                Executive Order 12866, Regulatory                       reduction which (taking into account                     7 CWA Section 304(b)(2)(B), 33 U.S.C.

                                                Planning and Review, requires an                        the cost of achieving such reduction and               1314(b)(2)(B), states that ‘‘Factors relating to the
                                                assessment of benefits and costs for all                any non-air quality health and                         assessment of best available technology shall take
                                                                                                        environmental impact and energy                        into account the age of equipment and facilities
                                                significant regulatory actions—with                                                                            involved, the process employed, the engineering
                                                benefits and costs expressed in                                                                                aspects of the application of various types of control
                                                                                                        the highest within the federal government. See         techniques, process changes, the cost of achieving
                                                quantitative terms to the extent                        Table 1–1 of the Office of Information and             such effluent reduction, non-water quality
                                                feasible—and instructs agencies that, to                Regulatory Affairs’ (OIRA) 2017 Draft Report to        environmental impact (including energy
                                                the extent permitted by law, regulatory                 Congress on the Benefits and Costs of Federal          requirements), and such other factors as the
                                                actions should have benefits that justify               Regulations and Agency Compliance with                 Administrator deems appropriate.’’ (Emphasis
                                                                                                        Unfunded Mandates Reform Act.                          added.) CAA Section 111(b)(1)(B), 42 U.S.C.
                                                their costs (58 FR 51735, October 4,                      3 https://www.whitehouse.gov/sites/
                                                                                                                                                               7411(b)(1)B), requires EPA to set standards of
                                                1993).2                                                 whitehouse.gov/files/omb/circulars/A4/a-4.pdf.         performance for certain categories of new stationary
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                                                                                                          4 https://www.epa.gov/environmental-economics/
                                                                                                                                                               sources, where Section 111(a)(1), id. § 7411(a)(1),
                                                  1 This became more formalized in 1981 with            guidelines-preparing-economic-analyses.                defines ‘‘standard of performance’’ as ‘‘a standard
                                                Executive Order 12291 which required executive            5 All chapters undergo an external peer review       for emissions of air pollutants which reflects the
                                                agencies to perform a cost-benefit analysis for all     prior to finalization, either through the EPA’s        degree of emission limitation achievable through
                                                major rules and centralized the regulatory review       Science Advisory Board Environmental Economics         the application of the best system of emission
                                                process by directing the Office of Management and       Advisory Committee or through independent              reduction which (taking into account the cost of
                                                Budget (OMB) to serve as a central clearinghouse        reviews by external experts. OMB’s Circular A4 also    achieving such reduction and any nonair quality
                                                for the review of agency regulations.                   underwent extensive review before being finalized.     health and environmental impact and energy
                                                  2 Over the past decade, the estimated costs and       Circular A–4 was subject to public comment,            requirements) the Administrator determines has
                                                benefits resulting from EPA regulations have been       interagency review and external expert peer review.    been adequately demonstrated.’’ (Emphasis added.)



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                                                27526                 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Proposed Rules

                                                ‘‘achievable’’, a ‘‘feasible’’ threshold,               (relying instead on voluntary provision                  its regulations. For example, some
                                                and related terms.                                      of information or publicly-available                     commenters argued that the approach of
                                                   This has resulted in a variety of                    data, or simply doing without data                       considering compliance cost divided by
                                                concepts of ‘costs’ that may be                         where the burden appears to outweigh                     the total emission reductions (i.e.,
                                                considered across statutes and even                     the data’s anticipated utility). In these                summing across pollutants) resulted in
                                                under the same statute. These concepts                  instances, EPA may be limited in what                    controls that appear cost-effective that
                                                include many different metrics that                     cost metrics can be used for a specific                  may not have been deemed cost-
                                                estimate financial impacts to the                       regulatory decision and may not be able                  effective if each pollutant was
                                                regulated entity, e.g., direct costs for                to use identical cost considerations                     considered separately. Such a situation
                                                compliance activities incurred by a                     across rules. A lack of data and a lack                  arose in in consideration of the best
                                                regulated entity, compliance cost per                   of a regular process for ongoing or                      system of emissions reductions (BSER)
                                                ton of pollutant reduced, the number of                 retrospective review after rules have                    for the Oil and Natural Gas NSPS (81 FR
                                                regulated facilities that may go out of                 been implemented 8 also inhibits EPA’s                   35823, June 3, 2016). Other commenters
                                                business as a result of the proposed                    ability to gain insights about the                       argued in past rulemakings the Agency
                                                regulation, or compliance cost as a                     realized costs and benefits of actions                   has justified the stringency of a standard
                                                percent of firm revenues. EPA’s                         that may help inform how it considers                    based on the estimated benefits from
                                                Regulatory Impact Analyses (RIAs), as                   costs and other factors in future                        reductions in pollutants not directly
                                                guided by its Economic Guidelines,                      rulemakings. Finally, industry or sector                 regulated by the action (i.e., ‘‘ancillary
                                                typically also quantify the standard                    specific factors may play a role, as some                benefits’’ or ‘‘co-benefits’’).10 For
                                                economic measure of cost used in                        metrics may be more or less relevant to                  example, in the Mercury and Air Toxics
                                                benefit-cost analysis –i.e., the broader                the affected industries, sectors, or                     Standards (MATS) rule (77 FR 9304,
                                                concept of the ‘‘social cost’’ of the                   question at hand. For example, potential                 February 16, 2012), the monetized
                                                regulation (the sum of all opportunity                  plant closures is a metric sometimes                     benefits from one of the pollutants being
                                                costs incurred as a result of a                         used to measure a potential impact and                   directly regulated (i.e., mercury) were
                                                regulation)—and ultimately reach an                     inform stakeholders about regulatory                     significantly lower than the estimated
                                                estimate of ‘‘net benefits’’ (social                    actions on some industries (e.g.,                        costs of the rule, and the quantified
                                                benefits minus social costs).                           manufacturing industries dominated by                    benefits in the regulatory impact
                                                   For many of EPA’s regulatory                         privately-owned businesses), but this                    analysis outweighed the costs because
                                                programs, the courts have weighed in on                 may not be an appropriate or viable                      of the benefits from reductions in
                                                the scope of costs to be considered                     measure of a potential financial impact                  ambient fine particulate matter (82 FR
                                                during the development of a regulation.                 for other types of regulated entities (e.g.,             16736, April 6, 2017). Similar criticisms
                                                For example, in Michigan v. EPA, 135                    some wastewater treatment plants, or                     have been made regarding the extent to
                                                S. Ct. 2699, 192 L.Ed.2d 674 (2015), the                                                                         which EPA has considered key
                                                                                                        electric power plants that are not
                                                Supreme Court held that EPA is                                                                                   uncertainties, baseline assumptions, and
                                                                                                        otherwise economical must still operate
                                                required to consider costs when                                                                                  other analytical factors in quantifying
                                                                                                        to ensure adequate reliability of the
                                                determining whether it is ‘‘appropriate                                                                          both benefits and costs relevant to
                                                                                                        system).
                                                and necessary’’ to regulate power plants                                                                         decision making.
                                                                                                           EPA regularly receives much public
                                                under CAA section 112 (42 U.S.C.                                                                                    The purpose of this ANPRM is to
                                                                                                        comment related to how costs and
                                                7412(n)(1)(A)), and indicated that ‘‘cost’’                                                                      request more information about the
                                                                                                        benefits are considered in decision
                                                can extend well beyond financial                                                                                 nature and extent of issues raised by
                                                                                                        making. On April 13, 2017, in
                                                outlays by regulated entities to include                                                                         stakeholders regarding EPA practices in
                                                                                                        accordance with Executive Order 13777,
                                                all of the negative repercussions of this                                                                        considering costs and benefits in the
                                                action, whether economic or otherwise                   ‘‘Enforcing the Regulatory Reform
                                                                                                        Agenda,’’ EPA issued a request for                       rulemaking process, and to solicit
                                                (135 S. Ct. at 2707). Many court rulings                                                                         comment on potential approaches that
                                                acknowledge the discretion provided to                  comment on regulations that may be
                                                                                                        appropriate for repeal, replacement, or                  would provide improved consistency
                                                the agency in how relevant factors are                                                                           and transparency. EPA specifically
                                                measured and weighed. For example, in                   modification.9 While that solicitation
                                                                                                        was broad in scope and generated                         seeks comment on whether, and if so,
                                                2009, the US Supreme Court ruled in
                                                                                                        comments on a myriad of regulatory                       how EPA should promulgate regulations
                                                Entergy Corporation et al. v.
                                                Riverkeeper, Inc. that EPA may use cost-                reform issues, one common theme in
                                                                                                                                                                    10 OMB Circular A–4 defines ancillary benefit as
                                                benefit analysis in setting standards and               many industry comments related to how
                                                                                                                                                                 ‘‘a favorable impact of the rule that is typically
                                                issuing permits under Section 316(b) of                 the Agency considers cost in developing                  unrelated or secondary to the statutory purpose of
                                                the CWA.                                                  8 Many previous administrations have
                                                                                                                                                                 the rulemaking (e.g., reduced refinery emissions
                                                   Many technical and practical factors                                                                          due to more stringent fuel economy standards for
                                                                                                        periodically undertaken programs of retrospective        light trucks) while a countervailing risk is an
                                                play a role in how EPA implements                       review or issued executive orders urging agencies        adverse economic, health, safety, or environmental
                                                statutory instruction related to cost                   to reassess existing regulations and eliminate,          consequence that occurs due to a rule and is not
                                                considerations in regulatory decisions.                 modify, or strengthen those regulations that have        already accounted for in the direct cost of the rule
                                                Any assessment of costs (and benefits)                  become outmoded in light of changed                      (e.g., adverse safety impacts from more stringent
                                                                                                        circumstances. Agencies are also subject to some         fuel-economy standards for light trucks). You
                                                is limited by the state of scientific and               limited regulatory lookback requirements mandated        should begin by considering and perhaps listing the
                                                economic modeling, quantification                       by statute, but for the most part retrospective review   possible ancillary benefits and countervailing risks
                                                methods, and available data—all of                      has not become institutionalized practice within         . . . . Analytic priority should be given to those
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                                                which change over time and across                       EPA nor other regulatory agencies as has                 ancillary benefits and countervailing risks that are
                                                                                                        prospective review (such as ex ante benefit-cost         important enough to potentially change the rank
                                                industries and sectors of the economy.                  analysis conducted under Executive Order 12866).         ordering of the main alternatives in the analysis. In
                                                Similarly, statutory authority to collect                 9 See Federal Register notice: Evaluation of           some cases the mere consideration of these
                                                information from regulated industries                   Existing Regulations (82 FR 17793). The comment          secondary effects may help in the generation of a
                                                varies, and in some cases EPA may                       period closed on May 15, 2017 and EPA received           superior regulatory alternative with strong ancillary
                                                                                                        over 460,000 comments. All public comments are           benefits and fewer countervailing risks . . . . Like
                                                choose not to exercise that authority in                accessible online in our docket on the                   other benefits and costs, an effort should be made
                                                order to reduce the costs of data                       Regulations.gov website identified by Docket ID No.      to quantify and monetize ancillary benefits and
                                                collection to the regulated entity                      EPA–HQ–OA–2017–0190.                                     countervailing risks.’’ (OMB 2003).



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                                                                      Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Proposed Rules                                                    27527

                                                that specify how the Agency will                        Preparing Economic Analysis 12 when                    regulatory reviews the EPA has historically
                                                approach its consideration of costs and                 developing future rulemakings?                         conducted.13 This might help identify
                                                benefits in setting pollution standards,                   b. Should EPA consider adopting uniform             needed revisions, inform future regulatory
                                                                                                        definitions of specific terms used in                  approaches, and improve methods of ex ante
                                                consistent with statutory direction.                    statutes—e.g., ‘‘cost,’’ ‘‘benefit,’’ ‘‘economic       analysis.
                                                II. Topics for Which EPA Is Seeking                     factors,’’ ‘‘reasonable,’’ ‘‘appropriate,’’ and          a. What are the opportunities and
                                                Input                                                   ‘‘weight of scientific evidence’’—and                  challenges associated with issuing
                                                                                                        specifying ex ante how they will be factored           regulations to require retrospective analysis
                                                  EPA is requesting comments                            into subsequent regulatory decisions?’’ How            and the concomitant need to collect data in
                                                                                                        should EPA approach the scope of the                   order to conduct a meaningful retrospective
                                                regarding perceived inconsistency and                   uniformity of these definitions (e.g., within a        analysis? Would it be more challenging
                                                lack of transparency in how the Agency                  particular regulatory program; within statute;         under some provisions of key environmental
                                                considers costs and benefits in                         across statutes)?                                      statutes? If so, which ones?
                                                rulemaking, potential approaches for                       c. To what extent should standard benefit-            b. What criteria should EPA use to
                                                addressing these concerns, and the                      cost analysis principles (e.g., setting a              determine when retrospective review is
                                                scope for issuing regulations to govern                 standard to maximize net benefits) guide the           needed? For example, should selection
                                                EPA’s approach in future rulemakings.                   selection of specific statutorily required             criteria be tied to the estimated impacts of
                                                Questions pertaining to each of these                   metrics and thresholds (e.g.,                          the regulation, the degree of uncertainty at
                                                                                                        ‘‘reasonableness’’) against which to measure           the time of ex ante analysis, the extent to
                                                topics are provided below. EPA invites                  the effects of a proposed regulation?                  which retrospective analysis will be feasible/
                                                comments on all aspects of this                            d. What improvements would result from              successful?
                                                ANPRM. Comments should provide                          a general rule that specifies how the Agency             c. How specific should prospective plans
                                                enough detail and contain sufficient                    will factor the outcomes or key elements of            for such a review be? For example, should
                                                supporting information (e.g., citations to              the benefit-cost analysis into future decision         plans specify the methodology that will be
                                                published studies and or data related to                making? For example, to what extent should             used, the coverage or scope of the analysis,
                                                your comments) in order for the Agency                  EPA develop a general rule on how the                  the data that will be used and data collection
                                                to understand the issues raised and give                Agency will weigh the benefits from                    plans?
                                                                                                        reductions in pollutants that were not
                                                them the fullest consideration.                         directly regulated (often called ‘‘co-benefits’’       C. Potential for Issuing Regulations To
                                                A. The Nature of Potential Concerns                     or ‘‘ancillary benefits’’) or how it will weigh        Govern EPA’s Approach in Future
                                                Regarding Perceived Inconsistency and                   key analytical issues (e.g., uncertainty,              Rulemakings
                                                                                                        baseline assumptions, limited environmental
                                                Lack of Transparency                                    modeling, treatment of regulating multiple               EPA requests comment on
                                                  EPA requests more information about                   pollutants within one regulatory action)               opportunities and challenges associated
                                                                                                        when deciding the stringency of future                 with promulgating regulations to govern
                                                the nature and extent of the concerns                   regulations? In addition, frequently scientific
                                                relating to possible inconsistency and                                                                         EPA’s approach to cost and benefit
                                                                                                        understanding is not adequate either to                considerations in future rulemakings.
                                                lack of transparency in considering                     quantify or to monetize the effects of some
                                                costs and benefits in the rulemaking                                                                           EPA is soliciting comment on whether
                                                                                                        pollutants or other impacts. How should
                                                process. The most helpful comments                      these potentially important but non-                   and how best to develop such
                                                would provide specific examples with                    quantified and/or non-monetized effects be             regulations.
                                                context and specify relevant statutory                  included in decision making?                              1. What are the most pressing economic or
                                                provisions. What impact could greater                      e. To what extent would it be helpful for           legal considerations that should be taken into
                                                consistency or transparency have on                     EPA to require consideration of cumulative             account when deciding the appropriate level
                                                                                                        regulatory costs and benefits of multiple              of specificity (all activities, by statute, by
                                                regulated entities, states, tribes, and                 regulations during the rulemaking process,             specific statutory provision) at which to
                                                localities, and the public?                             including how such consideration may affect            formulate regulations?
                                                B. Potential Approaches for Increasing                  the design or implementation of a regulation              2. What are the opportunities and
                                                                                                        (i.e., longer or different compliance                  challenges with issuing regulations to govern
                                                Consistency and Transparency in                         timeframes)?                                           EPA’s practice when statutory provisions do
                                                Considering Costs and Benefits in the                      2. What would improved transparency look            not mention costs or imply these are factors
                                                Rulemaking Process                                      like?                                                  to be considered alongside benefits and other
                                                                                                           a. How might the documentation of how               factors when setting pollution standards?
                                                   EPA requests comment on approaches                   EPA considered costs and benefits in a                    3. How can EPA best promote more
                                                for increasing consistency and                          regulatory decision be improved from current           consistency and predictability while still
                                                transparency when and how EPA                           practices?                                             leaving room for consideration of regulatory
                                                considers cost and benefits in setting                     b. In what ways can EPA increase                    context and for flexibility to adapt to new
                                                pollution standards, consistent with                    transparency about the decision-making                 information and methodological advances?
                                                statutory direction.                                    process in cases where the decision was                   4. In cases where current EPA practice
                                                                                                        based on information that is barred from               reflects prior judicial decisions, a change in
                                                   1. What would increased consistency look             release by law?                                        course may come with significant burden to
                                                like?                                                      3. To what extent would requiring a                 the Agency. Is there a way to address this
                                                   a. Given statutory constraints, how could            systematic retrospective review element in             concern in regulations governing the
                                                EPA more consistently adhere to existing                new regulations help to provide ongoing                consideration of costs and benefits?
                                                guidance on benefit-cost analysis principles,           consistency and transparency in how                       5. Are there ways to improve consistency
                                                definitions and analytical techniques                   regulatory decision making will adapt over             and transparency using methods other than
                                                whether across the entire agency or specific            time to new information? Such a requirement            a regulatory approach (e.g., additional
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                                                programs? For example, to what extent, if               might provide a more regular and systematic            guidance)? What are the opportunities and
                                                                                                        approach to ex-post (i.e. after regulations            challenges associated with these approaches?
                                                any, should EPA develop a regulatory action
                                                                                                        have been promulgated and become effective)               6. Are any of the opportunities and
                                                that commits the Agency to following its
                                                                                                        evaluation of the costs and benefits of EPA            challenges identified above specific to a
                                                existing peer-reviewed guidance documents               regulations, as compared with the periodic
                                                on risk assessment 11 and Guidelines for                                                                          13 It would also supplement existing statutory
                                                                                                          12 https://www.epa.gov/environmental-                requirements for periodic review of the adequacy of
                                                  11 https://www.epa.gov/risk/risk-assessment-          economics/guidelines-preparing-economic-               standards or guidelines (e.g., CAA 42 U.S.C.
                                                guidelines.                                             analyses.                                              § 109(d)(1); CWA 33 U.S.C. § 304(b)).



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                                                27528                 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Proposed Rules

                                                particular statute or statutes? If so, please           due on or before July 18, 2018. If you                 mobile voice and broadband (a $16.8
                                                provide examples.                                       anticipate that you will be submitting                 million increase).
                                                                                                        comments, but find it difficult to do so                  2. Through the Connect USVI Fund,
                                                III. Statutory and Executive Order                      within the period of time allowed by                   the Commission will make available up
                                                Reviews                                                 this document, you should advise the                   to $204 million of funding to carriers in
                                                   Under Executive Order 12866,                         contact listed in the following as soon                the U.S. Virgin Islands, including an
                                                entitled Regulatory Planning and                        as possible.                                           immediate infusion of $13 million for
                                                Review (58 FR 51735, October 4, 1993),                  ADDRESSES: You may submit comments,
                                                                                                                                                               restoration efforts in 2018. Of the
                                                this is a ‘‘significant regulatory action’’             identified by WC Docket Nos. 18–143,                   remainder, the Commission proposes
                                                because the action raises novel legal or                                                                       that about $186.5 million would be
                                                                                                        10–90 and 14–58, by any of the
                                                policy issues. Accordingly, EPA has                                                                            made available over a 10-year term for
                                                                                                        following methods:
                                                submitted this action to the Office of                                                                         fixed broadband (a $21 million increase)
                                                                                                           • Federal eRulemaking Portal: http://               and that about $4.4 million would be
                                                Management and Budget (OMB) for                         www.regulations.gov. Follow the
                                                review under Executive Order 12866                                                                             made available over a 3-year term for 4G
                                                                                                        instructions for submitting comments.                  LTE mobile voice and broadband (a $4.2
                                                and any changes made in response to                        • Federal Communications
                                                OMB recommendations have been                                                                                  million increase).
                                                                                                        Commission’s website: http://                             3. As a result of these Funds, as well
                                                documented in the docket for this                       fjallfoss.fcc.gov/ecfs2/. Follow the
                                                action. Because this action does not                                                                           as the Commission’s decision not to
                                                                                                        instructions for submitting comments.                  offset more than $65 million in advance
                                                propose or impose any requirements,
                                                                                                           • People with Disabilities: Contact the             payments it made to carriers last year,
                                                and instead seeks comments and
                                                                                                        FCC to request reasonable                              it will make available up to $256
                                                suggestions for the agency to consider in
                                                                                                        accommodations (accessible format                      million in additional high-cost support
                                                possibly developing a subsequent
                                                                                                        documents, sign language interpreters,                 for rebuilding, improving, and
                                                proposed rule, the various statutes and
                                                                                                        CART, etc.) by email: FCC504@fcc.gov                   expanding broadband-capable networks
                                                Executive Orders that normally apply to
                                                                                                        or phone: (202) 418–0530 or TTY: (202)                 in Puerto Rico and the Virgin Islands.
                                                rulemaking do not apply in this case.
                                                                                                        418–0432.                                              The Commission seeks comment on
                                                Should EPA subsequently determine to
                                                pursue a rulemaking, EPA will address                      For detailed instructions for                       how best to structure the second stage
                                                the statues and Executive Orders as                     submitting comments and additional                     of these Funds to speed longer-term
                                                applicable to that rulemaking.                          information on the rulemaking process,                 efforts to rebuild fixed and mobile voice
                                                                                                        see the SUPPLEMENTARY INFORMATION                      and broadband networks in the
                                                  Dated: June 7, 2018.                                  section of this document.                              territories and harden them against
                                                E. Scott Pruitt,                                                                                               future natural disasters. The
                                                                                                        FOR FURTHER INFORMATION CONTACT:
                                                Administrator.
                                                                                                        Alexander Minard, Wireline                             Commission intends to target high-cost
                                                [FR Doc. 2018–12707 Filed 6–12–18; 8:45 am]             Competition Bureau, (202) 418–7400 or                  support over the next several years in a
                                                BILLING CODE 6560–50–P                                  TTY: (202) 418–0484.                                   tailored and cost-effective manner,
                                                                                                                                                               using competitive processes where
                                                                                                        SUPPLEMENTARY INFORMATION: This is a                   appropriate.
                                                                                                        synopsis of the Commission’s Notice of
                                                FEDERAL COMMUNICATIONS                                  Proposed Rulemaking (Notice) in WC                     II. Notice: Stage 2 Funding for Long-
                                                COMMISSION                                              Docket Nos. 18–143, 10–90, 14–58; FCC                  Term Rebuilding
                                                47 CFR Part 54                                          18–57, adopted on May 8, 2018 and                         4. The Commission recognizes that a
                                                                                                        released on May 29, 2018. The full text                longer-term solution is needed to
                                                [WC Docket Nos. 18–143, 10–90, 14–58; FCC               of this document is available for public               rebuild, improve, and expand service in
                                                18–57]                                                  inspection during regular business                     Puerto Rico and the U.S. Virgin Islands
                                                                                                        hours in the FCC Reference Center,                     given the widespread devastation to
                                                The Uniendo a Puerto Rico Fund and
                                                                                                        Room CY–A257, 445 12th St. SW,                         communications networks caused by
                                                the Connect USVI Fund, Connect
                                                                                                        Washington, DC 20554 or at the                         the hurricanes. In this Notice, the
                                                America Fund, ETC Annual Reports
                                                                                                        following internet address: https://                   Commission proposes to establish
                                                and Certifications
                                                                                                        docs.fcc.gov/public/attachments/FCC-                   second stages for the Uniendo a Puerto
                                                AGENCY:  Federal Communications                         18-57A1.pdf. The Order that was                        Rico Fund and the Connect USVI
                                                Commission.                                             adopted concurrently with the Notice is                Fund—one that would make available
                                                ACTION: Proposed rule.                                  published elsewhere in the Federal                     about $699 million through the Uniendo
                                                                                                        Register.                                              a Puerto Rico Fund and about $191
                                                SUMMARY:   In this document, the Federal                                                                       million through the Connect USVI
                                                Communications Commission                               I. Introduction
                                                                                                                                                               Fund.
                                                (Commission) seeks comment on how                          1. Through the Uniendo a Puerto Rico                   5. As background, the USF currently
                                                best to structure the second stage of the               Fund, the Commission will make                         directs approximately $36 million each
                                                Uniendo a Puerto Rico and Connect                       available up to $750 million of funding                year to fixed services in Puerto Rico and
                                                USVI Funds to speed longer-term efforts                 to carriers in Puerto Rico, including an               $16 million each year to fixed services
                                                to rebuild fixed and mobile voice and                   immediate infusion of $51.2 million for                in the U.S. Virgin Islands, along with
                                                broadband networks in the territories                   restoration efforts in 2018. Of the                    $79.2 million each year to mobile
amozie on DSK3GDR082PROD with PROPOSALS1




                                                and harden them against future natural                  remainder, the Commission proposes                     services in Puerto Rico and only
                                                disasters. The Commission intends to                    that about $444.5 million would be                     $67,000 each year to mobile services in
                                                target high-cost support over the next                  made available over a 10-year term for                 the U.S. Virgin Islands. However, none
                                                several years in a tailored and cost-                   fixed voice and broadband (an $84                      of this funding is tied to specific,
                                                effective manner, using competitive                     million increase over current funding                  accountable build-out targets. The
                                                processes where appropriate.                            levels) and that about $254 million                    Commission now seeks comment on
                                                DATES: Comments are due on or before                    would be made available over a 3-year                  revisiting that spending to ensure there
                                                July 5, 2018 and reply comments are                     term for 4G Long-Term Evolution (LTE)                  is sufficient support for the long-term


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Document Created: 2018-06-12 23:59:30
Document Modified: 2018-06-12 23:59:30
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionAdvance notice of proposed rulemaking.
DatesComments must be received on or before July 13, 2018.
ContactFor further information on this document, please contact Elizabeth Kopits, National Center for Environmental Economics, Office of Policy, 1200 Pennsylvania Avenue NW, Mail Code 1809T, Washington, DC 20460, Phone: (202) 566-2299; [email protected]
FR Citation83 FR 27524 
RIN Number2010-AA12

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