[Federal Register: March 6, 2003 (Volume 68, Number 44)]
[Proposed Rules]
[Page 10675-10680]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr03-21]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter I
[FRN-7459-7]
Notice of Intent To Negotiate Proposed Rule on All Appropriate
Inquiry
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Intent to Establish FACA Committee and Negotiate a
Proposed Rule.
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SUMMARY: The Environmental Protection Agency (EPA) is giving notice
that it intends to establish a Negotiated Rulemaking Committee under
the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking
Act (NRA) to negotiate proposed federal standards for conducting all
appropriate inquiry. The purpose of the Committee will be to conduct
discussions and reach consensus, if possible, on proposed regulatory
language setting standards and practices for conducting all appropriate
inquiry, as required by the Small Business Liability Relief and
Brownfields Revitalization Act (the Brownfields Law). The Committee
will consist of representatives of parties with a definable stake in
the outcome of the proposed standards. EPA also is announcing the date
of an open public meeting to discuss the use of the negotiated
rulemaking process to develop a proposed rule. During the public
meeting, EPA officials will discuss the Agency's plans for the
establishment of a FACA committee to negotiate the proposed standards
for all appropriate inquiry.
DATES: EPA must receive comments on this notice by April 7, 2003.
Comments received after this date may not be considered. The public
meeting will be held on April 15, 2003. The meeting is scheduled for 1
p.m. to 3 p.m.
ADDRESSES: The public meeting will be held in Learning Forum Rooms A
and B of the Marriott Learning Complex in the Ronald Reagan Building
and International Trade Center at 1300 Pennsylvania Avenue NW.,
Washington, DC 20004. The Marriott Learning Center Complex is on the
concourse level of the Ronald Reagan Building just inside the building
entrance from the Federal Triangle Metro station.
Comments on today's notice may be submitted electronically, by
mail, or through hand delivery/courier. Follow the detailed
instructions for submitting public comments provided in paragraph B of
the SUPPLEMENTARY INFORMATION section below. Please reference Docket
number SFUND-2003-0006 when submitting your comments.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing
impaired). In the Washington, DC metropolitan area, call 703-412-9810
or TDD 703-412-3323. For more detailed information on specific aspects
of today's notice, contact Patricia Overmeyer, Office of Brownfields
Clean up and Redevelopment (5105T), U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, 202-
566-2774. overmeyer.patricia@epa.gov.
SUPPLEMENTARY INFORMATION:
General Information
A. How Can I Get Copies of the Background Materials Supporting Today's
Notice or Other Related Information?
1. EPA has established an official public docket for this notice
under Docket ID No. SFUND-2003-0006. The official public docket
consists of the documents specifically referenced in this rule and
other information related to this notice. Although a part of the
official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the EPA Docket Center
located at 1301 Constitution Ave. NW., Washington, DC 20004. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding federal holidays. To review docket materials, it is
recommended that the public make an appointment by calling (202) 566-
0276. The public may copy a maximum of 100 pages from any regulatory
docket at no charge. Additional copies cost $0.15/page.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
You may use EPA Dockets at http://www.epa.gov/edocket/ to access
You may use EPA Dockets at http://www.epa.gov/edocket/ to access
the index listing of the contents of the official public docket, and to
access those documents in the public docket that are available
electronically. Once in the system, select ``search,'' then key in the
docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI, and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified above.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff. For additional information
about EPA's electronic public docket visit EPA Dockets online or see 67
FR 38102, May 31, 2002.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your
[[Page 10676]]
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
EPA will not consider late comments in formulating a final decision.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
party submitting the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
Your use of EPA's electronic public docket to submit comments to
EPA electronically is EPA's preferred method for receiving comments. Go
directly to EPA Dockets at http://www.epa.gov/edocket, and follow the
directly to EPA Dockets at http://www.epa.gov/edocket, and follow the
online instructions for submitting comments. To access EPA's electronic
public docket from the EPA Internet Home Page, select ``Information
Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select
``search,'' and then key in Docket ID No. SFUND-2003-0006. The system
is an ``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
2. E-mail. Comments may be sent by electronic mail (e-mail) to
Superfund.Docket@epamail.epa.gov. Make sure this electronic copy is in
an ASCII format that does not use special characters or encryption.
Cite the docket Number SFUND-2003-0006 in your electronic file. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail comment directly
to the Docket without going through EPA's electronic public docket,
EPA's e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
3. Disk or CD ROM. You may submit comments on a disk or CD ROM that
you mail to the mailing address identified above. These electronic
submissions will be accepted in WordPerfect or ASCII file format. Avoid
the use of special characters and any form of encryption.
4. By Mail. Send two (2) copies of your comments to: EPA Docket
Center, U.S. Environmental Protection Agency Headquarters, Mail Code
5305T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention
Docket ID No. SFUND-2003-0006.
5. By Hand Delivery or Courier. Deliver your comments to: EPA
Docket Center, EPA West Building, Room B-102, 1301 Constitution Ave.,
NW., Washington, DC 20007. Attention Docket ID No. SFUND-2003-0006.
Such deliveries are only accepted during the Docket's normal hours of
operation as identified above.
Preamble
I. Statutory Authority
II. Background
III. Proposed Negotiating Procedures
IV. Comments Requested
I. Statutory Authority
This notice announcing EPA's intent to negotiate a proposed
regulation setting federal standards for the conduct of all appropriate
inquiry was developed under the authority of sections 563 and 564 of
the Negotiated Rulemaking Act of 1996 (5 U.S.C. 561, Public Law 104-
320). The proposed regulation setting standards for the conduct of all
appropriate inquiry that EPA is proposing to develop under a negotiated
rulemaking process will be developed under the authority of section
101(35)(B) of CERCLA (42 U.S.C. 9601(35)(B)(ii)).
II. Background
As required by the Federal Advisory Committee Act (5 U.S.C. App. 2.
section 9(a)(2)), and the Negotiated Rulemaking Act of 1996 (5 U.S.C.
561, Pub. L. 104-320), we are giving notice that the Environmental
Protection Agency is establishing a Negotiated Rulemaking Committee to
develop proposed standards and practices for conducting all appropriate
inquiry.
On January 11, 2002, President Bush signed the Small Business
Liability Relief and Brownfields Revitalization Act (``the Brownfields
Law''). In general, the Brownfields Law amends CERCLA and provides
funds to assess and clean up brownfields sites, clarifies CERCLA
liability provisions for certain landowners, and provides funding to
enhance State and Tribal clean up programs. Subtitle B of Title II of
the Brownfields Law revises some of the provisions of CERCLA Section
101(35) clarifying the requirements necessary to establish the innocent
landowner defense under CERCLA in addition to providing Superfund
liability limitations for bona fide prospective purchasers and
contiguous property owners. Among the requirements added to CERCLA is
the requirement that such parties undertake ``all appropriate inquiry''
into prior ownership and use of a property at the time at which a party
acquires the property.
The Brownfields Law requires EPA to develop regulations
establishing standards and practices for how to conduct all appropriate
inquiry and promulgate the standards within two years of its enactment.
Congress included in the Brownfields Law a list of criteria that the
Agency must address in the regulations establishing standards and
practices for conducting all appropriate inquiry (section
101(35)(2)(B)(ii)). The Brownfields Law also requires that parties
receiving funding under the federal brownfields program to conduct site
assessments must conduct the site assessment in accordance with the
standards and practices for all appropriate inquiry established under
the same provision of the Brownfields Law.
A. Negotiated Rulemaking
EPA has decided to use the negotiated rulemaking process to develop
proposed federal standards for conducting all appropriate inquiry. In
the Brownfields Law, Congress mandated that EPA develop regulations
establishing standards and practices for conducting all appropriate
inquiry and set forth a series of criteria for the Agency to follow in
developing the federal regulations. The most important reason for using
the regulatory negotiation process for developing a proposed federal
standard is that all stakeholders strongly support a consensual
rulemaking effort. EPA believes a regulatory negotiation process will
be less adversarial than the regulatory rulemaking process and that a
regulatory negotiation will result in a proposed rule that will
effectively reflect Congressional intent.
A regulatory negotiation process will allow EPA to solicit direct
input from informed, interested, and affected parities when drafting
the regulation, rather than delay public input until the public comment
period provided after
[[Page 10677]]
publishing a proposed rule; therefore, ensuring that the rule is more
sensitive to the needs and limitations of both the parties and the
Agency. A rule drafted by negotiation with informed and affected
parties is expected to be more pragmatic and more easily implemented,
therefore providing the public with the benefits of the rule while
minimizing the negative impact of a regulation conceived or drafted
without the input of outside knowledgeable parties. Since a negotiating
committee includes representatives from the major stakeholder groups
affected by or interested in the rule, the number of public comments on
the proposed rule may be reduced and those comments that are received
may be more moderate. EPA anticipates that there will be a need for few
substantive changes to a proposed rule developed under a regulatory
negotiation process prior to the publication of a final regulation.
B. The Concept of Negotiated Rulemaking
Usually, EPA develops a proposed rulemaking using Agency staff and
consultant resources. The concerns of affected parties are made known
through various informal contacts, the circulation of a draft proposal
to known affected parties for their informal comment, through advance
notices of proposed rulemaking published in the Federal Register, or
formal consultation with an advisory committee. After the notice of
proposed rulemaking is published for comment, affected parties may
submit arguments and data defining and supporting their positions with
regard to the issues raised in the proposed rule. All communications
from affected parties are directed to the Agency. In general, there is
not much communication among parties representing different interests.
Many times, effective regulations have resulted from such a process.
However, as Congress noted in the Negotiated Rulemaking Act, such
regulatory development procedures may ``discourage the affected parties
from meeting and communicating with each other, and may cause parties
with different interests to assume conflicting and antagonistic
positions * * *'' (Sec. 2(2)). Congress also stated that ``adversarial
rulemaking deprives the affected parties and the public of the benefits
of face-to-face negotiations and cooperation in developing and reaching
agreement on a rule. It also deprives them of the benefits of shared
information, knowledge, expertise, and technical abilities possessed by
the affected parties.'' (Sec. 2(3)).
Using negotiated rulemaking to develop the proposed rule is
fundamentally different. Negotiated rulemaking is a process in which a
proposed rule is developed by a committee composed of representatives
of all those interests that will be significantly affected by the rule.
Decisions are made by consensus, which generally require concurrence
among the interests represented. The process is started by the Agency's
careful identification of all interests potentially affected by the
rulemaking under consideration. To help in this identification process,
the Agency publishes a notice in the Federal Register, such as this
one, which identifies a preliminary list of interests and requests
public comment on that list. Following receipt of the comments, the
Agency establishes an advisory committee representing these various
interests to negotiate a consensus on the terms of a proposed rule.
Representation on the committee may be direct, that is, each member
represents a specific interest, or may be indirect, through coalitions
of parties formed for this purpose. The Agency is a member of the
committee representing the Federal government's own set of interests.
The negotiated rulemaking advisory committee is facilitated by a
trained mediator, who facilitates the negotiation process. The role of
this mediator, or facilitator, is to apply proven consensus building
techniques to the advisory committee setting.
Once a regulatory negotiation advisory committee reaches consensus
on the provisions of a proposed rule, the Agency, consistent with its
legal obligations, uses such consensus as the basis of its proposed
rule, to be published in the Federal Register. This provides the
required public notice and allows for a public comment period. Other
participants and other interested parties retain their rights to
comment, participate in an informal hearing (if requested) and judicial
review. EPA anticipates, however, that the pre-proposal consensus
agreed upon by this Committee will effectively address all major issues
prior to publication of a proposed rulemaking.
C. Proposed Rule Setting Standards for All Appropriate Inquiry
The negotiated Rulemaking Act allows EPA to establish a negotiated
rulemaking committee if it is determined that the use of the negotiated
rulemaking procedure is in the public interest. We understand that
voluntary standards developed by standards developing organizations,
such as the ASTM 1527-2000 standard, are available and are currently
being used to conduct all appropriate inquiry in conjunction with
private real estate property transactions. In addition, site assessment
protocols have been established under the federal Superfund program and
Resource Conservation and Recovery Act (RCRA) corrective action
programs. Similarly, many State response programs include site
assessment requirements. We intend to develop federal regulations that
build upon the depth of experience accrued in both the public and
private sectors in implementing these standards and programs. We
believe that building upon currently available private sector standards
for undertaking all appropriate inquiry as well as building on the
experience of state and federal government site assessment programs is
the most efficient and economical way to develop federal regulatory
standards that will both meet the criteria set in the Brownfields Law
and ensure minimal disruption to the private market and state and
federal site assessment programs.
EPA has determined that the regulatory negotiation process will
ensure that we obtain a diverse array of input from both private sector
stakeholders and state program officials who are familiar with and
experienced in implementing processes to conduct all appropriate
inquiry. During the fall of 2002, we initiated the convening stage of
the negotiated rulemaking process to identify appropriate stakeholder
groups and solicit advice and input from experienced public and private
sector users of similar standards. We retained an expert facilitator to
contact parties potentially affected by the all appropriate inquiry
rule to determine whether or not stakeholders are interested in
participating in a negotiated rulemaking process and determine the
potential for stakeholder issues to be successfully addressed through a
regulatory negotiation. Following an evaluation of stakeholder interest
and input during the convening process, our facilitator determined that
there is sufficient enthusiasm among stakeholders for a negotiated
rulemaking process and almost all stakeholders that we identified and
interviewed expressed a belief that potential issues and differences
between interested parties could be successfully addressed and
negotiated through the regulatory negotiation process. A description of
the issues raised by identified stakeholders and a list of interested
stakeholders, as well as the findings of our facilitator are contained
in the final report entitled Convening Assessment Report on the
[[Page 10678]]
Feasibility of a Negotiated Rulemaking Process to Develop the All
Appropriate Inquiry Standard Required Under the Small Business
Liability Relief and Brownfields Revitalization Act. A copy of this
final report is included in the regulatory docket for today's notice.
D. Agency Commitment
In initiating this regulatory negotiation process, EPA is making a
commitment to provide adequate resources to ensure timely and
successful completion of the process. This commitment includes making
the process a priority activity for all representatives, components,
officials, and personnel of the Agency who need to be involved in the
rulemaking, from the time of initiation until such time as a final rule
is issued or the process is expressly terminated. EPA will provide
administrative support for the process and will take steps to ensure
that the negotiated rulemaking committee has the dedicated resources it
requires to complete its work in a timely fashion. These include the
provision or procurement of such support services as: Properly equipped
space adequate for public meetings and caucuses; logistical support;
word processing and distribution of background information; the service
of a facilitator; and such additional research and other technical
assistance as may be necessary.
To the maximum extent possible consistent with the legal
obligations of the Agency, EPA will use the consensus of the regulatory
negotiation committee as the basis for the rule proposed by the Agency
for public notice and comment. The Agency is committed to publishing a
consensus proposal that is consistent with the legal mandate of the
Brownfields Law.
E. Negotiating Consensus
As discussed above, the negotiated rulemaking process is
fundamentally different from the usual development process for
developing a proposed rule. Negotiation allows interested and affected
parties to discuss possible approaches to various issues rather than
only asking them to respond to details on an Agency proposal. The
negotiation process involves a mutual education of the parties by each
other on the practical concerns about the impact of such approaches.
Each committee member participates in resolving the interests and
concerns of other members, rather than leaving it up to EPA to bridge
different points of view.
A key principle of negotiated rulemaking is that agreement is by
consensus of all the interests. Thus, no one interest or group of
interests is able to control the process. The Negotiated Rulemaking Act
defines consensus as the unanimous concurrence among interests
represented on a negotiated rulemaking committee, unless the committee
itself unanimously agrees to use a different definition. In addition,
experience has demonstrated that using a trained mediator to facilitate
this process will assist all potential parties, including EPA, to
identify their interests in the rule and so to be able to reevaluate
previously stated positions on issues involved in this rulemaking
effort.
III. Proposed Negotiating Procedures
A. Key Issues for Negotiation
We anticipate the issues to be addressed by the Negotiated
Rulemaking Committee on All Appropriate Inquiry may include:
[sbull] Balancing the goals and priorities of state regulatory
programs, privately-developed consensus standards, and the
Congressional mandate for a federal standard for conducting all
appropriate inquiry.
[sbull] Developing clear and concise standards that address each of
the statutory criteria (Section 101(35)(B)(iii) of CERCLA).
[sbull] Balancing the need to put abandoned properties back into
productive reuse with concerns for public health and environmental
protection.
[sbull] Balancing a need for clear and comprehensive standards that
will ensure a high level of certainty in identifying potential
environmental concerns without imposing time consuming and
unnecessarily expensive regulatory requirements.
[sbull] Defining the shelf life of an assessment and the extent to
which an assessment, or the results of all appropriate inquiry, may be
transferred to subsequent property owners.
[sbull] Minimizing disruptions to the current real estate market
due to the development of a federal standard that is different from
current industry protocols while ensuring that the federal standard is
protective and in compliance with statutory criteria.
[sbull] Identifying the extent to which sampling and analysis of
potentially contaminated property may be required to document the
presence, or the lack of, environmental contamination.
[sbull] Identifying what information is necessary on the potential
contamination of adjacent and adjoining properties, as well as
underlying groundwater resources.
[sbull] Establishing a list of contaminants to include in the
investigation when conducting all appropriate inquiry.
B. Committee Formation
The negotiated rulemaking Committee will be formed and operated in
full compliance with the requirements of the Federal Advisory Committee
(FACA) in a manner consistent with the requirements of the Negotiated
Rulemaking Act.
C. Interests Involved/Committee Membership
The Agency intends to conduct the negotiated rulemaking proceedings
with particular attention to ensuring full and adequate representation
of those interests that may be significantly affected by the proposed
rule setting standards for conducting all appropriate inquiry. Section
562 of the NRA defines the term ``interest'' as ``with respect to an
issue or matter multiple parties which have a similar point of view or
which are likely to be affected in a similar manner.'' Listed below are
parties which the Agency has identified tentatively as being
``significantly affected'' by the matters that may be included in the
proposed rule.
EPA anticipates that the negotiating committee will be composed of
approximately 25 members representing parties of interest to the
rulemaking. EPA will monitor membership carefully to ensure that there
is a balanced representation from affected and interested stakeholder
groups. EPA anticipates that the committee will contain the following
types of representatives:
[sbull] Environmental Interest Groups
[sbull] Environment Justice Community
[sbull] Federal Government
[sbull] Tribal Government
[sbull] State Government
[sbull] Local Government
[sbull] Real Estate Developers
[sbull] Bankers and Lenders
[sbull] Environmental Professionals
We point out that one purpose of this notice is to determine
whether federal standards for conducting all appropriate inquiry will
significantly affect interests that are not listed above, as well as
whether the list provided below identifies accurately and
comprehensively a group of stakeholders representing the interests
listed above. We invite comment and suggestions on the list of
``significantly affected'' interests, as well as the list of suggested
stakeholders, or committee members.
EPA recognizes that the regulatory actions we take under this
program may at times affect various segments of society in different
ways, and that this may in some cases produce unique ``interests'' in a
proposed rule based on
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income, gender, or other factors. Particular attention will be given by
the Agency to ensure that any unique interests that have been
identified in this regard, and that may be significantly affected by
the proposed rule, are fully represented.
EPA tentatively identified the following list of possible interests
and parties as representing the above list of interested stakeholder
groups. The following list includes those organizations tentatively
identified by EPA as being either a potential member of the Committee,
or a potential member of a coalition that would in turn nominate a
candidate to represent one of the significantly affected interests
listed above:
[sbull] U.S. Environmental Protection Agency
[sbull] Sierra Club
[sbull] Environmental Defense
[sbull] Center for Public Environmental Oversight
[sbull] Partnership for Sustainable Brownfields Redevelopment
[sbull] Association of State and Territorial Solid Waste Management
Officials
[sbull] National Association of Attorneys General
[sbull] Gila Tribe, Department of Environmental Quality
[sbull] U.S. Conference of Mayors
[sbull] National Association of Local Government Environmental
Professionals
[sbull] National Association of Home Builders
[sbull] The Real Estate Roundtable
[sbull] National Association of Industrial and Office Parks
[sbull] Trust for Public Land
[sbull] National Brownfields Association
[sbull] Bank of America
[sbull] Freddie Mac
[sbull] Mortgage Bankers Association
[sbull] Wasatch Environmental
[sbull] National Groundwater Association
[sbull] Associated Soil and Foundation Engineers
The list of potential parties shown above is not presented as a
complete or exclusive list from which committee members will be
selected, nor does inclusion on the list of potential parties mean that
a party on the list has agreed to participate as a member of the
committee or as a member of a coalition. The list merely indicates
parties that EPA has tentatively identified as representing
significantly affected interests in the outcome of the proposed rule
establishing federal standards for the conduct of all appropriate
inquiry. This document gives notice of this process to other potential
participants and affords them the opportunity to request representation
in the negotiations. The procedure for requesting such representation
is set out under Section I ``General Information'' part of this
document. In addition, comments and suggestions on this tentative list
are invited.
The negotiating group should not exceed 25 members. The Agency
believes that more than 25 members would make it difficult to conduct
effective negotiations. EPA is aware that there are many more potential
participants, whether they are listed here or not, than there are
membership slots on the Committee. The Agency does not believe, nor
does the NRA contemplate, that each potentially affected group must
participate directly in the negotiations; nevertheless, each affected
interest can be adequately represented. To have a successful
negotiation, it is important for interested parties to identify and
form coalitions that adequately represent significantly affected
interests. These coalitions, to provide adequate representation, must
agree to support, both financially and technically, a member to the
Committee whom they will choose to represent their ``interest.''
It is very important to recognize that interested parties who are
not selected to membership on the Committee can make valuable
contributions to this negotiated rulemaking effort in any of several
ways:
[sbull] The person could request to be placed on the Committee
mailing list, submitting written comments, as appropriate;
[sbull] The person could attend the Committee meetings, which are
open to the public, caucus with his or her interest's member on the
Committee, or even address the Committee (usually allowed at the end of
an issue's discussion or the end of the session, as time permits); or
[sbull] The person could assist in the work of a workgroup that
might be established by the Committee.
Informal workgroups are usually established by an advisory
committee to assist the Committee in ``staffing'' various technical
matters (e.g., researching or preparing summaries of the technical
literature or comments on particular matters such as economic issues)
before the Committee so as to facilitate Committee deliberations. They
also might assist in estimating costs and drafting regulatory text on
issues associated with the analysis of the affordability and benefits
addressed, and formulating drafts of the various provisions and their
justification previously developed by the committee. Given their
staffing function, workgroups usually consist of participants who have
expertise or particular interest in the technical matter(s) being
studied.
Because it recognizes the importance of this staffing work for the
Committee, EPA will provide appropriate technical expertise for such
workgroups. EPA requests comment regarding particular appointments to
membership on the regulatory negotiation committee. Members can be
individuals or organizations. If the effort is to be fruitful,
participants should be able to fully and adequately represent the
viewpoints of their respective interests. Those who wish to be
appointed as members of the committee should submit a request to EPA,
in accordance with the public participation procedures outlined in
Section I ``General Information'' of this notice.
The list of potential committee members provided above includes
those who have been tentatively identified by EPA as being either a
potential member of the Committee, or a potential member of a coalition
that would in turn nominate a candidate to represent one of the
significantly affected interests, also listed above.
D. Good Faith Negotiation
Committee members should be willing to negotiate in good faith and
have the authority, from his or her constituency, to do so. The first
step is to ensure that each member has good communications with his or
her constituencies. An intra-interest network of communication should
be established to bring information from the support organization to
the member at the table, and to take information from the table back to
the support organization. Second, each organization or coalition
should, therefore, designate as its representative an official with
credibility and authority to insure that needed information is provided
and decisions are made in a timely fashion. Negotiated rulemaking
efforts can require a very significant contribution of time by the
appointed members that must be sustained for up to a year. Other
qualities that can be very helpful are negotiating experience and
skills, and sufficient technical knowledge to participate in
substantive negotiations.
Certain concepts are central to negotiating in good faith. One is
the willingness to bring all issues to the bargaining table in an
attempt to reach a consensus, instead of keeping key issues in reserve.
The second is a willingness to keep the issues at the table and not
take them to other forums. Finally, good faith includes a willingness
to move away from the type of positions usually taken in a more
[[Page 10680]]
traditional rulemaking process, and instead explore openly with other
parties all ideas that may emerge from the discussions of the
committee.
E. Facilitator
The facilitator will not be involved with the substantive
development of the standard. Rather, the facilitator's role generally
includes:
[sbull] Facilitating the meetings of the committee in an impartial
manner; and
[sbull] Impartially assisting the members of the Committee in
conducting discussions and negotiations;
F. EPA Representative
The EPA representative will be a full and active participant in the
consensus building negotiations. The Agency's representative will meet
regularly with various senior Agency officials, briefing them on the
negotiations and receiving their suggestions and advice, to effectively
represent the Agency's views regarding the issues before the Committee.
EPA's representative also will ensure that the entire spectrum of
federal governmental interests affected by the all appropriate inquiry
rulemaking, including the Office of Management and Budget, the
Department of Justice, and other Departments and agencies, are kept
informed of the negotiations and encouraged to make their concerns
known in a timely fashion.
G. Committee Notice and Schedule
EPA will have an open public meeting of all parties to discuss the
possibility of using negotiated rulemaking on April 15, 2003. The
Public Meeting will be held in Learning Forum Rooms A and B of the
Marriott Learning Complex in the Ronald Reagan Building at 1300
Pennsylvania Avenue NW., Washington, DC 20004. The meeting is scheduled
for 1 p.m. to 3 p.m. If EPA proceeds with a negotiated rulemaking
committee on all appropriate inquiry, EPA plans for the Committee to
begin deliberations in May, 2003 and conclude negotiations in December,
2003.
After evaluating the comments on this announcement and the requests
for representation, EPA will issue a notice that will announce the
establishment of the committee and its membership, unless after
reviewing the comments, it is determined that such an action is
inappropriate. The negotiation process will begin once the committee
membership roster is published in the Federal Register.
IV. Comments Requested
EPA requests comments on whether it should use negotiated
rulemaking to develop draft language for this rule and the extent to
which the issues, parties and procedures described above are adequate
and appropriate.
Dated: February 27, 2003.
Thomas P. Dunne,
Associate Assistant Administrator, EPA Office of Solid Waste and
Emergency Response.
[FR Doc. 03-5324 Filed 3-5-03; 8:45 am]
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