31172 Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Rules and Regulations 

Authority: 46 U.S.C. 70034, 70051; 33 CFR 

1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Add § 165.T05–0132 to read as 

follows: 

§ 165.T05–0132 Safety Zone; Cape May, 

NJ. 

(a) Location. The following area is a 

moving safety zone: All waters within 

50 yards in front of the lead safety 

vessel preceding the first event 

participants, to 50 yards behind the 

safety vessel trailing the last event 

participants, and 100 yards on either 

side of participant and safety vessels 

during the 2021 DeSatnick Foundation 

Cape to Cape Paddleboat event. The 

safety zone will move with the safety 

vessels and participants as they transit 

the waters east through Cape May 

Harbor, south through Cape May Inlet, 

west through the Atlantic Ocean, north 

through the Delaware Bay, then east 

through Cape May Canal, and terminate 

at the Lost Fishermen’s Memorial in 

Cape May Harbor. The safety zone will 

move at the pace of event patrol vessels 

and participants. 

(b) Definitions. As used in this 

section, designated representative 

means a Coast Guard Patrol 

Commander, including a Coast Guard 

petty officer, warrant or commissioned 

officer on board a Coast Guard vessel or 

on board a federal, state, or local law 

enforcement vessel assisting the Captain 

of the Port (COTP), Delaware Bay in the 

enforcement of the safety zone. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, you may not enter the safety 

zone described in paragraph (a) of this 

section unless authorized by the COTP 

or the COTP’s designated representative. 

(2) To seek permission to enter or 

remain in the zone, contact the COTP or 

the COTP’s representative via VHF–FM 

channel 16 or 215–271–4807. Those in 

the safety zone must comply with all 

lawful orders or directions given to 

them by the COTP or the COTP’s 

designated representative. 

(3) This section applies to all vessels 

except those engaged in law 

enforcement, aids to navigation 

servicing, and emergency response 

operations. 

(d) Enforcement. The U.S. Coast 

Guard may be assisted in the patrol and 

enforcement of the safety zone by 

Federal, State, and local agencies. 

(e) Enforcement period. This rule will 

be enforced from 8:30 a.m. to 1 p.m. on 

June 27, 2021. 

Dated: June 4, 2021. 

Jonathan D. Theel, 

Captain, U.S. Coast Guard, Captain of the 

Port Delaware Bay. 

[FR Doc. 2021–12337 Filed 6–10–21; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 351 

[Docket No. 21–CRB–0007–RM] 

Copyright Royalty Board Regulations 

Regarding the Conduct of Proceedings 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Royalty Judges 

are amending regulations to clarify that 

their hearings may be conducted in 

person at the Library of Congress or an 

alternative location, or virtually, at the 

Judges’ discretion. 

DATES: Effective June 11, 2021. 

ADDRESSES: Docket: For access to the 

docket to read background documents 

or comments received, go to eCRB at 

https://app.crb.gov and perform a case 

search for docket 21–CRB–0007–RM. 

FOR FURTHER INFORMATION CONTACT: 

Anita Blaine, CRB Program Specialist, at 

202–707–7658 or crb@loc.gov. 

SUPPLEMENTARY INFORMATION: On 

February 26, 2021, the Copyright 

Royalty Judges (Judges) published a 

notice of proposed rulemaking (notice) 

in the Federal Register seeking 

comments on a proposed rule to codify 

the fact that future hearings may be 

conducted physically, either at the 

Library of Congress or an alternative 

location, or virtually, at the Judges’ 

discretion. 86 FR 1163 (Feb. 26, 2021). 

The Judges received one comment, from 

SoundExchange, a regular participant in 

Copyright Royalty Board proceedings, in 

favor of the proposed rule. 

SoundExchange cites to past hearings 

that the Judges conducted, in 

coordination and consultation with the 

participants, in alternate locations and 

virtually. It also anticipates the 

possibility that virtual hearings could 

make sense in the future, and notes that 

the proposed rule provides flexibility 

regarding the virtual platform. 

Therefore, for the reasons indicated in 

the February 26, 2021 notice, the Judges 

adopt the proposed changes to part 351, 

as detailed in this final rule. 

List of Subjects in 37 CFR Part 351 

Administrative practice and 

procedure, Copyright. 

Final Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

amend 37 CFR 351 as follows: 

PART 351—PROCEEDINGS 

■ 1. The authority citation for part 351 

continues to read: 

Authority: 17 U.S.C. 803. 

■ 2. Revise § 351.9(a) to read as follows: 

§ 351.9 Conduct of hearings. 

(a)(1) By panels. Subject to paragraph 

(b) of this section, hearings will be 

conducted by Copyright Royalty Judges 

sitting en banc. 

(2) Location. Hearings will be 

conducted in person at the Library of 

Congress or an alternative location, or 

virtually, at the Judges’ discretion. 

* * * * * 

Dated: May 17, 2021. 

Jesse M. Feder, 

Chief Copyright Royalty Judge. 

Approved by: 

Carla D. Hayden, 

Librarian of Congress. 

[FR Doc. 2021–12312 Filed 6–10–21; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 1 and 124 

[EPA–HQ–OGC–2019–0406; FRL–10024–73– 

OA] 

RIN 2090–AA41 

Revisions to the Permit Appeals 

Process To Restore the Organization 

and Function of the Environmental 

Appeals Board 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is reversing recent 

changes to the organization and 

function of the Environmental Appeals 

Board (EAB) that altered the appeals 

process and procedures for Agency 

decisions that the EAB considers. In 

addition, the Administrator reaffirms 

that the Board is intended to function as 

an impartial body that is independent of 

all EPA components, except the 

immediate Office of the Administrator, 

and reaffirms the EAB’s ability to carry 


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Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Rules and Regulations 31173 

out the Administrator’s delegated 

authority to adjudicate disputes and 

issue final Agency decisions. 

DATES: This final rule is effective on 

June 11, 2021. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OGC–2019–0406. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available electronically through https:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Ammie Roseman-Orr, Environmental 

Appeals Board (EAB), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Mail Code 

1103M, Washington, DC 20460–0001; 

(202) 233–0122; email address: 

roseman-orr.ammie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action affects the organization 

and function of the Environmental 

Appeals Board (EAB or Board) and the 

rules of practice governing 

administrative appeals. The rules of 

practice governing EAB appeals apply to 

any persons or entities who seek review 

of EPA final permit decisions under 40 

CFR 124.19 by the EAB as well as 

persons or entities who appear before 

the Board in other matters. 

B. When will this rule become effective? 

This rule will become effective upon 

publication in the Federal Register. The 

Administrative Procedure Act’s 

requirement, 5 U.S.C. 553(d), that 

substantive rules not be effective until at 

least 30 days after publication in the 

Federal Register is inapplicable because 

this rulemaking is procedural. 

C. What is the Agency’s authority for 

taking this action? 

EPA is issuing this document under 

its general rulemaking authority, 5 

U.S.C. 301, which provides that ‘‘[t]he 

head of an Executive department or 

military department may prescribe 

regulations for the government of this 

department, the conduct of its 

employees, the distribution and 

performance of its business, and the 

custody, use, and preservation of its 

records, papers, and property.’’ EPA is 

not one of the 15 ‘‘Executive 

Departments’’ listed at 5 U.S.C. 101, 

however, EPA gained housekeeping 

authority through the Reorganization 

Plan No. 3 of 1970, 84 Stat. 2086 (July 

9, 1970). 

EPA’s authority to issue this 

procedural rule is also contained in the 

Resource Conservation and Recovery 

Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300(f) et 

seq.; Clean Water Act, 33 U.S.C. 1251 et 

seq.; and Clean Air Act, 42 U.S.C. 1857 

et seq. This rule does not expand the 

Board’s authority beyond that of the 

Administrator in reviewing agency 

decisionmaking and making final 

agency determinations. 

Section 553 of the Administrative 

Procedure Act (APA), 5 U.S.C. 553(b) 

(A), provides that ‘‘rules of agency 

organization, procedure, or practice’’ are 

exempt from notice and comment 

requirements. The action the Agency is 

taking in this document reverses certain 

amendments to the Environmental 

Appeals Board’s procedural rules and 

replaces them with the prior regulatory 

text. These procedural revisions fall 

under the exemption provided in APA 

section 553(b)(3)(A), as did the rule 

originally establishing the EAB and its 

appeal procedures. 57 FR 5320, 5322 

(February 13, 1992). Some of the 

changes in this rule affect the 

organization of the Agency as it pertains 

to the organization and function of the 

EAB, and some of the changes alter the 

procedures applicable to appeals 

submitted to the EAB for adjudication. 

With respect to the appeals process and 

procedures, this action does not alter 

the rights or interests of the parties who 

come before the Board; rather, it 

reinstates the prior process and 

procedures used by the Board to review 

the Agency decision being appealed. 

Accordingly, EPA is taking no comment 

on this action. 

II. Background 

A. What action is the Agency taking? 

The Agency is rescinding certain 

changes made to EPA’s Environmental 

Appeals Board and its appeal process 

that were promulgated on August 21, 

2020 (85 FR 51650) (hereafter ‘‘2020 

EAB Rule’’ or ‘‘2020 amendments’’). 

Specifically, the EPA is reinstating the 

regulatory text at 40 CFR 1.25 and most 

of 40 CFR 124.19 that existed prior to 

the 2020 amendments. The 2020 EAB 

Rule is subject to review consistent with 

the Executive Order 13990, ‘‘Protecting 

Public Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis,’’ section 2(a) (January 20, 2021) 

(86 FR 7037, January 25, 2021). Based 

on that review, the Agency has 

determined that the 2020 EAB Rule 

adversely affects the administration of 

the Agency’s appeals process and 

procedures and, thus, rescission of the 

2020 EAB Rule is warranted. This action 

does not, however, alter the revisions 

that the 2020 EAB Rule made to 40 CFR 

part 49 or 71, which made the permit 

appeal procedures in 40 CFR 124.19 

applicable to permits issued to tribes in 

Indian Country under part 49 (for minor 

and non-attainment NSR permits) and to 

Title V permits issued under part 71. 

Applying the same appeal procedures to 

these types of permits makes the 

appeals process more consistent, 

efficient, and transparent. 

The EAB was established by rule in 

1992 as an impartial body, independent 

of other EPA components outside of the 

immediate Office of the Administrator, 

to conduct full and fair adjudications 

and to allow for a broader range of input 

into Agency decisions by the 

Administrator’s express delegation of 

authority. 57 FR 5320 (February 13, 

1992). This rule reinstates the regulatory 

provisions related to the establishment 

and function of the EAB and the permit 

appeals process as they existed prior to 

the 2020 amendments. In doing so, the 

Administrator is ensuring that the EAB 

can continue to uphold the integrity of 

the Agency’s decisionmaking, including 

the advancement of environmental 

justice. 

The 2020 EAB Rule altered regulatory 

text pertaining to EAB procedures 

governing permit appeals, which are 

informal adjudications under the 

Administrative Procedure Act. 

Specifically, the 2020 EAB Rule was 

intended to preclude the EAB’s review 

of discretionary Agency actions and to 

make the Board’s scope of review more 

akin to that of federal courts. To 

accomplish that goal, the 2020 EAB 

Rule removed regulatory text pertaining 

to the EAB’s review of challenges based 

on the permit issuer’s exercise of 

discretion, as well as the Board’s 

discretion to review important policy 

considerations. The changes adversely 

affected the Board’s ability to review— 

in the context of a permit appeal—a 

permit issuer’s compliance with and 

application of important EPA policies 

and Executive orders (85 FR 51652), 

such as Executive Order 12898, 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations,’’ 59 FR 7629 (February 16, 

1994), which the Board has done in 

many prior cases. Additionally, the 

2020 EAB Rule’s stated aim of aligning 

the Board’s standard of review with that 


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of federal courts is not met by the 2020 

EAB Rule, because the Administrative 

Procedure Act authorizes Federal courts 

to set aside any final agency action 

under review that is arbitrary, 

capricious, or an abuse of discretion. 5 

U.S.C. 706. By limiting the Board’s 

review to clearly erroneous findings of 

fact and conclusions of law, and 

excluding the review of discretionary 

Agency action and compliance with 

EPA policies and Executive orders, the 

2020 EAB Rule injected uncertainty 

with respect to the Board’s ability to 

review acts or omissions of the exercise 

of Agency discretion (and with respect 

to the applicability of prior related 

precedent). The effect of the 2020 EAB 

Rule also conflicts with the efficient and 

effective functioning of the EAB to 

administratively review Agency action 

before it is final, irrespective of a 

Federal court’s scope or standard of 

review, and to ensure that Agency 

components consistently comply with 

Agency policies in a manner that 

comports with exercising the delegated 

functions of the Administrator. As such, 

these changes present obstacles for the 

Board in ensuring the integrity of 

Agency decisionmaking where the 

decision involves discretionary agency 

action and may impede the 

advancement of important polices, such 

as environmental justice. For this 

reason, this rule rescinds the changes to 

the EAB’s standard for review in permit 

appeals. 

The 2020 EAB Rule also adversely 

affected other aspects of the process for 

permit appeals. To purportedly 

‘‘streamline the permitting appeal 

process,’’ the rule set deadlines for the 

EAB’s review by imposing a 60-day 

requirement to issue permit decisions. 

The 2020 EAB Rule also restricted the 

number and length of extensions of time 

that parties may request. Given the wide 

range of issues and arguments raised in 

petitions for review by the EAB, these 

restrictions are overly prescriptive. 

Briefing schedules, extensions of time, 

and even the time it takes to issue a 

decision are more effectively managed 

on a case-by-case basis after considering 

the nature and circumstances present in 

the case balanced with the resources 

and demands of the EAB. Existing EAB 

rules provide the Board the authority, in 

exercising its duties and 

responsibilities, to ‘‘do all acts and take 

all measures necessary for the efficient, 

fair, and impartial adjudication of issues 

arising in an appeal.’’ 40 CFR 124.19(n). 

The ability of a tribunal to manage its 

docket—including granting extensions, 

setting deadlines, and determining 

procedural requirements—is essential to 

its ability to provide an efficient, fair, 

and impartial adjudication. Removing 

the ability of the EAB to manage its 

caseload based on the wide range of 

circumstances that may be presented 

runs counter to those goals. 

Additionally, the stated objective to 

‘‘streamline’’ the permitting process in 

the 2020 EAB Rule was not wellsupported. The EAB review process not 

only provides a meaningful opportunity 

for affected communities to have their 

concerns addressed, it also expedites 

the process of obtaining a final, valid 

permit by facilitating a process that is 

faster and more certain for the 

applicant. Permit appeals to the EAB are 

resolved within a reasonable timeframe 

and the overwhelming majority of EAB 

decisions resolve the dispute without 

the need for federal court litigation, 

which generally takes considerably 

longer. On average, very few EAB 

decisions are appealed to Federal court 

and very few of those have been 

overturned. Over the years the EAB has 

continually refined and altered its 

processes to reduce the amount of time 

it takes to effectively resolve an appeal 

and to make it easier for people to use 

the appeals process, including the use of 

electronic filing, making the EAB docket 

publicly accessible and EAB decisions 

publicly searchable, implementing word 

limits on briefs, streamlining procedures 

for participation in permit appeals, 

improving internal processes, and 

implementing the EAB’s highly 

successful Alternative Dispute 

Resolution process. The EAB has 

demonstrated a commitment to 

continuous improvement in the permit 

appeal process. 

The 2020 EAB Rule also altered the 

deadline and page limit for Amicus 

participation. Amicus parties in EAB 

cases can include impacted States, 

Tribes, and Municipalities (when they 

are not a petitioner or respondent in the 

appeal), trade associations, and—when 

a non-EPA authority is the permit 

issuer—the EPA’s Office of General 

Counsel. It is in the best interest of the 

appeals process to provide amicus 

parties with reasonable timeframes in 

which to file briefs in appeals, so long 

as the time allowed will not unduly 

interfere with the efficiency of the 

process. Requiring Amicus briefs to be 

submitted in all cases before the Permit 

Issuer responds to a Petition for Review, 

and limiting the length of such briefs to 

15 pages, both of which the 2020 EAB 

Rule does, unnecessarily restricts the 

EAB’s consideration of amici 

participation in a manner that may 

preclude the EAB from receiving fully 

informative briefing of the issues on 

appeal and, as such, may complicate 

rather than streamline or improve the 

permitting appeal process. 

The 2020 EAB Rule also removed the 

Board’s authority to decide on its own 

initiative, or sua sponte, to review any 

condition of a Resource Conservation 

and Recovery Act (RCRA), Underground 

Injection Control (UIC), National 

Pollutant Discharge Elimination System 

(NPDES), or Prevention of Significant 

Deterioration (PSD) permit decision 

reviewable under 40 CFR 124.19, even 

when that permit has not been 

appealed. Consistent with the delegated 

authority by the Administrator to review 

agency decisions, this final rule 

reinstates the Board’s sua sponte 

authority, which has been in place since 

the Board was established. 

With respect to the function of the 

Board, the 2020 EAB Rule modified the 

EAB’s prior-existing delegation of 

authority by authorizing the EPA 

General Counsel, who frequently 

appears before the EAB in disputed 

matters as Counsel, or works closely 

with an EPA Region or EPA program 

office as ‘‘of Counsel,’’ to issue 

dispositive determinations on pending 

EAB matters. Specifically, the 2020 EAB 

Rule provides that the Administrator 

acting through the General Counsel can 

issue a dispositive legal interpretation 

in any matter pending before the EAB 

(including enforcement or permit 

matters) or on any issues addressed by 

the EAB. These revisions are 

inconsistent with the EAB’s original 

establishment and function and 

undermine the transparency, fairness, 

and finality of EAB decisions. When the 

Board was established, the 

Administrator recognized the need to 

make clear that ‘‘the Administrator’s 

adjudicative authority and the 

Administrator’s enforcement authority 

(delegated to various Regional and 

Headquarters enforcement officers) are 

delegated to, and exercised by separate 

and distinct components of the 

Agency.’’ 57 FR 5322. For this reason, 

the rules expressly prohibit Board 

Members from being employed by the 

Office of General Counsel or any other 

office directly associated with matters 

that could come before the EAB. 40 CFR 

1.25(e)(3). The EAB’s independence 

from the various component offices 

outside the immediate Office of the 

Administrator is a critical element of 

inspiring confidence in the fairness and 

transparency of the Agency’s appellate 

adjudication process. This includes 

independence from the Office of the 

General Counsel, which is not part of 

the immediate Office of the 

Administrator. 

Additionally, administrative review 

by the EAB involves a review of the 


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record of decision as it existed at the 

time the decision was made. A post-hoc 

interpretation of law that is issued while 

an appeal is pending, and that is 

binding on the EAB, injects confusion 

into the Agency decisionmaking process 

and conflicts with the EAB’s review of 

the Agency’s understanding or 

application of the law at the time the 

decision was made. Transparency and 

fairness in the review of Agency 

decisionmaking is better served by not 

injecting a newly issued interpretation 

of law from the Office of General 

Counsel while an appeal is pending 

before the Board. Additionally, because 

the Office of General Counsel is often 

counsel, ‘‘of counsel’’ or an amicus 

party in Board cases, the imposition of 

a new binding interpretation of law 

issued through the Office of General 

Counsel during the pendency of an 

appeal raises the very concerns that the 

EAB was established to address. 

Moreover, this modification was 

unnecessary because, among other 

reasons, a reconsideration process exists 

for EAB decisions and matters can be 

referred to the Administrator for 

decision. In sum, a legal interpretation 

binding on the EAB issued during the 

pendency of an appeal undermines the 

EAB’s exercise of the Administrator’s 

delegated adjudicative authority as well 

as confidence in the fairness of the 

process. 

The 2020 EAB Rule also established a 

process for the Administrator to reverse 

the EAB’s designation of a decision for 

publication. A decision designated for 

publication means the decision is slated 

to be reproduced in bound volumes of 

the Environmental Administrative 

Decisions and appear on the Board’s 

website as a published decision. 

Practically speaking, re-designating a 

decision as unpublished does not alter 

the EAB’s statutory obligation to publish 

all final decisions and orders on its 

website under 5 U.S.C. 552(a)(2)(A) (i.e., 

both published and unpublished final 

orders). The intent of the rule change, 

however, was not necessarily to affect 

which decisions are made available to 

the public; rather, the intent was to 

indicate to reviewing courts that only 

published EAB decisions may warrant 

deference. 85 FR 51653 (August 21, 

2020) (noting in the preamble that ‘‘it is 

the express policy of the Agency that 

only published decisions of the EAB 

represent EPA’s official, authoritative 

position with regard to the issues 

addressed in such decisions’’ and that 

the intent of the change is to ‘‘indicate 

to reviewing courts that only published 

EAB decisions may warrant deference’’). 

As revised, the regulatory text added in 

the 2020 EAB Rule regarding decisions 

for publication neither determines 

which decisions will be made available 

to the public nor forecloses a reviewing 

court from choosing to afford deference 

to an unpublished decision. Whether a 

decision is categorized as ‘‘published’’ 

versus ‘‘unpublished’’ is also not 

determinative of whether a party will 

rely on a case or cite a case to the Board. 

Consistent with the foundational legal 

principle of stare decisis, the Board 

generally follows its own prior 

applications of law where the same 

factual and legal principles are 

presented. The use of a system of 

precedential decisions makes the 

decisional process more transparent and 

consistent for all, including the public. 

Given all of the above, the provision 

providing for the Administrator to 

determine whether a decision should be 

re-categorized as unpublished or not 

followed in future cases could 

negatively affect the transparency and 

consistency of EAB decisionmaking, 

and interfere with the independence 

and function of the EAB to issue final 

decisions as delegated by the 

Administrator, which again is 

fundamental to inspiring confidence in 

the fairness of the Agency’s appellate 

adjudication process. 

Finally, the 2020 EAB Rule set 12- 

year term limits for EAB judges to serve 

on the Board. When the Board was 

established, it was created as a 

‘‘permanent body with continuing 

functions.’’ 57 FR 5320. For twenty-nine 

years, the EAB judges have been career 

employees and members of the Senior 

Executive Service (SES), governed by a 

specific statute implemented by the 

Office of Personnel Management (OPM), 

specifically 5 U.S.C. 3395. The EAB 

judge position has been classified as 

Career Reserved, which means that the 

position is filled by a career appointee 

and designated as such to ensure 

impartiality, and the public’s 

confidence in the impartiality, of the 

government. 5 CFR 214.402. The Career 

Reserved designation is particularly 

appropriate for positions, like this, that 

involve adjudication and appeals. Id. In 

addition, imposing a 12-year term limit 

is unnecessary given that the 

Administrator assigns and appoints 

career appointees to serve as EAB 

judges, and each judge acts on the 

express delegated authority of the 

Administrator and remains accountable 

to the Administrator. Further, pursuant 

to 3395 and 5 CFR 317.901, each judge, 

as a member of the SES, is subject to 

reassignment by the Administrator to 

any other SES position in the Agency 

for which he or she qualifies, if the 

Administrator so chooses. 5 U.S.C. 3395 

(governing the reassignment or transfer 

of SES employees); 5 CFR 317.901 

(setting forth procedures for effectuating 

SES reassignments or transfers). The 

added term limits neither expanded nor 

removed any authority that the 

Administrator has over the EAB judge 

positions. The Agency has benefited 

from judges who have served on the 

EAB for long terms because these judges 

have deep experience in EAB 

jurisprudence and provide important 

stability for the Board, as well as the 

Agency’s administrative jurisprudence. 

Further, although the 2020 EAB Rule set 

12-year term limits, it applied those 

limits on a ‘‘rolling basis’’ to the current 

judges, where the most senior judge’s 

term expires three years from the 

effective date of the 2020 EAB Rule. 85 

FR 51653. This ‘‘retroactive’’ 

application of the 12-year term limits to 

current judges conflicts with the 

‘‘dignity and stature’’ that was originally 

intended for ‘‘the Agency’s highest 

adjudicative body.’’ 57 FR 5320. 

Potentially rotating in a new judge every 

three years (or even more often if 

vacancies occur) could inject instability 

into the appeals process, may appear to 

politicize the position in a way that is 

antithetical to the career reserved 

designation, and does not serve the 

Agency’s intent in creating the EAB as 

a specialized, impartial appellate 

Agency tribunal. Removing the term 

limits leaves in place the 

Administrator’s authority to reassign 

any SES judge, consistent with relevant 

SES statutes and regulations, if the 

Administrator chooses. 

In sum, by rescinding the 2020 EAB 

Rule and reverting the regulations 

pertaining to the EAB’s function and 

process to the prior existing regulatory 

text, the Administrator is reaffirming the 

EAB’s original function as an impartial 

body, independent of other EPA 

components, to conduct full and fair 

adjudications in the exercise of the 

Administrator’s delegated authority. In 

modifying the Administrator’s 

delegation of authority to the EAB, the 

2020 EAB Rule weakened the 

administration of the Agency’s appeals 

process and procedures. The reversion 

of the regulatory text will better 

safeguard the EAB’s ability to efficiently 

and effectively manage the appeals 

process and ensure the integrity of 

Agency decisionmaking, advance 

environmental justice, and protect 

public health and the environment, in 

accordance with the mission of the 

Agency. The Agency intends to further 

consider the advisability of future 

revisions to the EAB’s procedural rules 


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to incorporate any other housekeeping 

revisions needed for efficiently and 

effectively processing appeals. 

III. Statutory and Executive Order 

Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is exempt from review by 

the Office of Management and Budget 

(OMB) because it is limited to agency 

organization, management or personnel 

matters. 

B. Paperwork Reduction Act (PRA) 

This action does not contain any 

information collection activities and 

therefore does not impose an 

information collection burden under the 

PRA. 

C. Regulatory Flexibility Act (RFA) 

This action is not subject to the RFA. 

The RFA applies only to rules subject to 

notice and comment rulemaking 

requirements under the Administrative 

Procedure Act (APA), 5 U.S.C. 553, or 

any other statute. This rule pertains to 

agency management or personnel, 

which the EPA expressly exempts from 

notice and comment rulemaking 

requirements under 5 U.S.C. 553(a)(2). 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1536, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local, or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have a 

substantial direct effect on the States, on 

the relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This action is not subject to Executive 

Order 12898 (59 FR 7629, February 16, 

1994) because it does not establish an 

environmental health or safety standard. 

K. Congressional Review Act (CRA) 

This rule is exempt from the CRA 

because it is a rule relating to agency 

management or personnel; and is a rule 

of agency organization, procedure or 

practice that does not substantially 

affect the rights or obligations of nonagency parties. 

List of Subjects 

40 CFR Part 1 

Environmental protection, 

Organization and functions 

(Government agencies). 

40 CFR Part 124 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Hazardous waste, 

Indians—lands, Reporting and 

recordkeeping requirements, Water 

pollution control, Water supply. 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends 40 CFR parts 1 and 124 

as follows: 

PART 1—STATEMENT OF 

ORGANIZATION AND GENERAL 

INFORMATION 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 5 U.S.C. 552; Reorganization 

Plan No. 3 of 1970, 84 Stat. 2086 (July 9, 

1970). 

■ 2. Amend § 1.25 by: 

■ a. Revising paragraph (e)(2); 

■ b. Removing paragraphs (e)(3) and (5); 

and 

■ c. Redesignating paragraph (e)(4) as 

paragraph (e)(3). 

The revision reads as follows: 

§ 1.25 Staff offices. 

* * * * * 

(e) * * * 

(2) Functions. The Environmental 

Appeals Board shall exercise any 

authority expressly delegated to it in 

this title. With respect to any matter for 

which authority has not been expressly 

delegated to the Environmental Appeals 

Board, the Environmental Appeals 

Board shall, at the Administrator’s 

request, provide advice and 

consultation, make findings of fact and 

conclusions of law, prepare a 

recommended decision, or serve as the 

final decisionmaker, as the 

Administrator deems appropriate. In 

performing its functions, the 

Environmental Appeals Board may 

consult with any EPA employee 

concerning any matter governed by the 

rules set forth in this title, provided 

such consultation does not violate 

applicable ex parte rules in this title. 

* * * * * 

PART 124—PROCEDURES FOR 

DECISIONMAKING 

■ 3. The authority citation for part 124 

continues to read as follows: 

Authority: Resource Conservation and 

Recovery Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300f et seq.; 

Clean Water Act, 33 U.S.C. 1251 et seq.; 

Clean Air Act, 42 U.S.C. 7401 et seq. 

■ 4. Amend § 124.19 by: 

■ a. Revising paragraphs (a)(4), (e), (g), 

and (l); 

■ b. Removing paragraph (m) and 

redesignating paragraphs (n) through (p) 

as paragraphs (m) through (o), 

respectively; and 

■ c. Adding a new paragraph (p). 

The revisions and addition read as 

follows: 

§ 124.19 Appeal of RCRA, UIC, NPDES and 

PSD Permits. 

(a) * * * 

(4) Petition contents. (i) In addition to 

meeting the requirements in paragraph 

(d) of this section, a petition for review 

must identify the contested permit 

condition or other specific challenge to 

the permit decision and clearly set forth, 

with legal and factual support, 

petitioner’s contentions for why the 


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Federal Register / Vol. 86, No. 111 / Friday, June 11, 2021 / Rules and Regulations 31177 

permit decision should be reviewed. 

The petition must demonstrate that each 

challenge to the permit decision is 

based on: 

(A) A finding of fact or conclusion of 

law that is clearly erroneous; or 

(B) An exercise of discretion or an 

important policy consideration that the 

Environmental Appeals Board should, 

in its discretion, review. 

(ii) Petitioners must demonstrate, by 

providing specific citation to the 

administrative record, including the 

document name and page number, that 

each issue being raised in the petition 

was raised during the public comment 

period (including any public hearing) to 

the extent required by § 124.13. For each 

issue raised that was not raised 

previously, the petition must explain 

why such issues were not required to be 

raised during the public comment 

period as provided in § 124.13. 

Additionally, if the petition raises an 

issue that the Regional Administrator 

addressed in the response to comments 

document issued pursuant to § 124.17, 

then petitioner must provide a citation 

to the relevant comment and response 

and explain why the Regional 

Administrator’s response to the 

comment was clearly erroneous or 

otherwise warrants review. 

* * * * * 

(e) Participation by amicus curiae. 

Any interested person may file an 

amicus brief in any appeal pending 

before the Environmental Appeals 

Board under this section. The deadline 

for filing such brief is 15 days after the 

filing of the response brief, except that 

amicus briefs in PSD or other new 

source permit appeals must be filed 

within 21 days after the filing of the 

petition. Amicus briefs must comply 

with all procedural requirements of this 

section. 

* * * * * 

(g) Timing of motions for extension of 

time. Parties must file motions for 

extensions of time sufficiently in 

advance of the due date to allow other 

parties to have a reasonable opportunity 

to respond to the request for more time 

and to provide the Environmental 

Appeals Board with a reasonable 

opportunity to issue an order. 

* * * * * 

(l) Final disposition and judicial 

review. (1) A petition to the 

Environmental Appeals Board under 

paragraph (a) of this section is, under 5 

U.S.C. 704, a prerequisite to seeking 

judicial review of the final agency 

action. 

(2) For purposes of judicial review 

under the appropriate Act, final agency 

action on a permit occurs when agency 

review procedures under this section 

are exhausted and the Regional 

Administrator subsequently issues a 

final permit decision under this 

paragraph (l). A final permit decision 

must be issued by the Regional 

Administrator: 

(i) When the Environmental Appeals 

Board issues notice to the parties that 

the petition for review has been denied; 

(ii) When the Environmental Appeals 

Board issues a decision on the merits of 

the appeal and the decision does not 

include a remand of the proceedings; or 

(iii) Upon the completion of remand 

proceedings if the proceedings are 

remanded, unless the Environmental 

Appeals Board’s remand order 

specifically provides that appeal of the 

remand decision will be required to 

exhaust administrative remedies. 

(3) The Regional Administrator must 

promptly publish notice of any final 

agency action in the Federal Register 

regarding the following permits: 

(i) PSD permits; 

(ii) Outer continental shelf permits 

issued under 40 CFR part 55; 

(iii) Federal Title V operating permits 

issued under 40 CFR part 71; 

(iv) Acid Rain permits appealed under 

40 CFR part 78; 

(v) Tribal Major Non-Attainment NSR 

permits issued under 40 CFR 49.166 

through 49.173; and 

(vi) Tribal Minor NSR permits issued 

under 40 CFR 49.151 through 49.161. 

* * * * * 

(p) Authority to initiate review. The 

Environmental Appeals Board also may 

decide on its own initiative to review 

any condition of any RCRA, UIC, 

NPDES, or PSD permit decision issued 

under this part for which review is 

available under paragraph (a) of this 

section. The Environmental Appeals 

Board must act under this paragraph (p) 

within 30 days of the service date of 

notice of the Regional Administrator’s 

action. 

[FR Doc. 2021–12291 Filed 6–10–21; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 61 

[Docket ID FEMA–2018–0026] 

RIN 1660–AA95 

National Flood Insurance Program: 

Conforming Changes To Reflect the 

Biggert-Waters Flood Insurance 

Reform Act of 2012 (BW–12) and the 

Homeowners Flood Insurance 

Affordability Act of 2014 (HFIAA), and 

Additional Clarifications for Plain 

Language; Correction 

AGENCY: Federal Emergency 

Management Agency, Department of 

Homeland Security (DHS). 

ACTION: Final rule; correction. 

SUMMARY: On July 20, 2020, FEMA 

published in the Federal Register a final 

rule revising the National Flood 

Insurance Program (NFIP) regulations to 

codify certain provisions of the BiggertWaters Flood Insurance Reform Act of 

2012 and the Homeowner Flood 

Insurance Affordability Act of 2014, and 

to clarify certain existing NFIP rules 

relating to NFIP operations and the 

Standard Flood Insurance Policy. This 

final rule provides corrections to those 

instructions, to be used in lieu of the 

information published July 20. 

DATES: This correction is effective 

October 1, 2021. 

ADDRESSES: The docket for this 

rulemaking is available for inspection 

using the Federal eRulemaking Portal at 

http://www.regulations.gov and can be 

viewed by following that website’s 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Kelly Bronowicz, Director, Policyholder 

Services Division, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 400 C 

Street SW, Washington, DC 20472, (202) 

557–9488. 

SUPPLEMENTARY INFORMATION: In FR Doc. 

2020–09260, beginning on page 43946 

in the Federal Register of Monday, July 

20, 2020, the following corrections are 

made: 

Appendix A(1) to Part 61 [Corrected] 

■ 1. On page 43968, in the second 

column, in appendix A(1) to part 61, the 

signatory ‘‘Administrator, Federal 

Insurance and Mitigation 

Administration’’ is corrected to read 

‘‘Federal Insurance and Mitigation 

Administration’’. 


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