Nondiscrimination in Programs or Activities Receiving Federal Assistance from the Environmental Protection Agency, 77284-77289 [2015-31050]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 239 (Monday, December 14, 2015)]
[Proposed Rules]
[Pages 77284-77289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31050]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 7 and 9

[EPA-HQ-OA-2013-0031, FRL-9933-69-OA]
RIN 2090-AA39


Nondiscrimination in Programs or Activities Receiving Federal 
Assistance from the Environmental Protection Agency

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to amend 
its regulations with regard to compliance information, post-award 
compliance reviews, and complaint investigations. This proposed rule 
will improve the EPA's ability to ensure that recipients of federal 
financial assistance comply with their affirmative obligation under the 
Civil Rights Act of 1965 and other nondiscrimination statutes not to 
discriminate, while also ensuring that the EPA has sufficient 
flexibility and discretion to carry out its nondiscrimination 
compliance work.

DATES: Comments must be received on or before February 12, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2013-0031, to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The 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. The 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://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jeryl Covington or Helena Wooden-
Aguilar, U.S. Environmental Protection Agency, Office of Civil Rights, 
(Mail Code 1201A), 1200 Pennsylvania Ave. NW., Washington, D,C. 20460, 
telephone (202) 564-7272, (202) 564-7713 or (202) 564-0792.

SUPPLEMENTARY INFORMATION:

I. Background Information

    The EPA is proposing to amend its regulations implementing title VI 
of the Civil Rights Act of 1964 (``Title VI''), section 504 of the 
Rehabilitation Act of 1973 (``Section 504''), section 13 of the Federal 
Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500), and 
the Age Discrimination Act of 1975 (``Age Discrimination Act'') in 
order to enable it to create a model civil rights program which can 
nimbly and effectively enforce civil rights statutes in the 
environmental context. Together, these statutes prohibit discrimination 
on the basis of race, color, national origin, (including discrimination 
based on language ability or limited English proficiency), disability, 
sex, and age in programs or activities that receive federal financial 
assistance. This rulemaking proposes to amend subpart D (Requirements 
for Applicants and Recipients) and subpart E (Agency Compliance 
Procedures) provisions regarding compliance information, post-award 
compliance reviews, and complaint investigations. This rulemaking also 
proposes to make a technical correction to subpart D to

[[Page 77285]]

remove citations to expired Office of Management and Budget (OMB) 
control numbers and to place the current OMB control number for 
information collection requests under 40 CFR part 7 in the consolidated 
list of OMB approvals under the Paperwork Reduction Act in 40 CFR part 
9.
    Applicants for and recipients of EPA assistance already are 
obligated to comply with Title VI and other nondiscrimination statutes 
as a condition of receiving EPA assistance. This proposed rule is 
consistent with the broad discretion that, as recognized by the Supreme 
Court, has been afforded all federal agencies with regard to the 
enforcement of federal nondiscrimination obligations,\1\ and is part of 
a package of efforts intended to improve EPA's civil rights program. 
One effort, for example, is the draft External Compliance and 
Complaints Program Strategic Plan, which was published for comment on 
September 10, 2015 (https://www.epa.gov/ocr/external-compliance-title-vi-new-developments). This package, as a whole, will increase 
transparency and accountability and move EPA closer to its goal of 
establishing a model civil rights program. This proposed rule--another 
part of the package--will assist the EPA in continuing to be more 
proactive in monitoring and enforcing recipients' compliance with Title 
VI and other nondiscrimination statutes.
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    \1\ See Alexander v. Choate, 469 U.S. 287, 293-294 (1985); FCC 
v. Pottsville Broadcasting Co., 309 U.S. 134 (1940).
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    The EPA has sought to improve its External Compliance and 
Complaints Program. In 2009, EPA made a commitment to strengthen and 
revitalize EPA's civil rights program. In addition to increasing staff, 
securing additional training and improving processes, as part of that 
effort, in 2010, EPA funded an independent in-depth evaluation of its 
civil rights program by the firm Deloitte Consulting LLP. Following 
receipt of the evaluation, the Administrator established an internal 
Civil Rights Executive Committee to review Deloitte's evaluation, and 
other sources of information, and make recommendations for building a 
model civil rights program for EPA. The Executive Committee posted its 
draft report for public review in February 2012, and the Administrator 
approved the final report and recommendations on April 13, 2012.
    One of the Executive Committee's recommendations was for the EPA to 
be more proactive in terms of achieving compliance with Title VI and 
other nondiscrimination obligations by, in part, analyzing data and 
information obtained from recipients and developing consistent 
processes. Accordingly, as part of its efforts to create a robust pre- 
and post- award compliance program (as identified in the EPA Draft EJ 
2014 Plan Supplement dated April 12, 2012), the EPA began the process 
of reevaluating its regulations to identify what data and information 
it currently obtains from recipients. The EPA first looked to other 
federal agencies for their best practices in terms of an External 
Compliance and Complaints Program. Specifically, the EPA evaluated its 
External Compliance and Complaints Program by comparing its Title VI 
and other nondiscrimination regulations to those of over twenty other 
federal agencies. The EPA found that the other agencies' regulations 
were the same or extremely similar, while the EPA's regulations were 
different. Many of these other agencies have successful external 
compliance programs because, in part, their regulations provide for a 
robust compliance program, (including routine access to recipient data 
through compliance reports and compliance reviews), and explicitly 
affirm the agency's discretion to appropriately tailor complaint 
resolution paths based on the nature and complexity of the allegations 
presented. While some aspects of EPA's External Compliance and 
Complaints Program will continue to have unique characteristics that 
are tailored to EPA's needs, the EPA, recipients, complainants, and 
industry will benefit from the predictability, consistency and 
familiarity arising from this effort to conform these aspects of the 
EPA's regulations with regulations promulgated by other federal 
agencies with a record of proven success and with the Department of 
Justice's Coordination Regulations at 28 CFR part 42, subpart F. Thus, 
this proposed rule will give the EPA a similar level of flexibility and 
discretion as is afforded to other federal agencies when collecting 
compliance information, conducting post-award compliance reviews, and 
investigating complaints.
    Finally, these amendments recognize that the EPA's current, self-
imposed regulatory deadlines are impracticable given the inherent 
scientific complexity associated with determining which and how 
populations are impacted by environmental pollutants; the number of 
discrimination allegations and theories that may be asserted in any one 
complaint under Title VI or the other nondiscrimination statutes; and 
the volume of the complaints received. Indeed, there are several 
examples of the analytical and logistical complexity of discrimination 
complaints historically filed with the EPA on its Web site. For 
instance, in one case alleging disparate health impacts, the EPA 
developed a pesticide exposure analysis to predict daily air 
concentrations of a specific pesticide at different distances from an 
application site, based on information concerning the amount of the 
pesticide applied during a seven-year period. In order to conduct such 
an analysis, the EPA had to gather and enter the available raw data 
into a database and then have the appropriate scientific models created 
that took into account several factors including, time of day, 
location, wind speed, proximity and temperature. Next, this analysis 
was peer reviewed before the EPA was ultimately able to resolve the 
complaint. The EPA recognizes that not every administrative complaint 
will require this same level of scientific analysis to determine who is 
potentially exposed to a particular pollutant. Also, the EPA recognizes 
that there may be several potential resolution paths, including 
informal resolution and Alternative Dispute Resolution, even for those 
cases raising disparate health claims, which the EPA will pursue, when 
appropriate. By eliminating arbitrary deadlines, the EPA will be better 
positioned to strategically manage its administrative complaint docket 
by identifying the specific aspects of individual complaints, such as 
complaints that present the potential for high-impact resolution. 
Further, the EPA will be able to explore the best resolution option for 
those complaints, including tailored goals and benchmarks for specific 
phases of the individual case, rather than a cookie-cutter approach 
that assumes all cases should follow the same approach, resolution 
strategy, and timeframes. Tailoring the appropriate resolution path to 
each complaint based on the unique factual pattern and legal issues 
presented, will further allow the EPA to dedicate the appropriate 
amount of time and resources to resolve each individual complaint.
    It is important to note that even with the elimination of the 
arbitrary deadlines, the EPA must promptly process and investigate 
complaints. Removal of deadlines will not allow the EPA to unreasonably 
delay its resolution of complaints because, in part, the definition of 
a prompt investigation and resolution turns on the factual context of 
the complaint. Indeed, the language in the proposed rule is subject to 
judicial review and is consistent with judicial precedent that 
recognizes that any investigatory timeframe may be affected by the

[[Page 77286]]

breadth and complexity of the issues in the complaint.
    Thus, based on the entire proposed regulatory amendments that will 
conform the EPA's regulations to those of more than twenty other 
federal agencies, the EPA will take another step in its journey to 
continue to create a model Civil Rights Program. In light of the 
flexibility, discretion, and accountability for individual cases 
affirmed by this proposed rule, the EPA will be better able to 
strategically implement its external civil rights enforcement program 
to ensure prompt, effective and efficient complaint docket management 
and to enhance its proactive compliance program.
    The EPA is subject to the Department of Justice's Coordination 
Regulations describing specific implementation, compliance, and 
enforcement obligations of federal funding agencies under Title VI and 
similar provisions in federal grant statutes. See 28 CFR 42.401 through 
42.415. In accordance with 28 CFR 42.403, the EPA submitted this 
proposed rule to the Assistant Attorney General, Civil Rights Division, 
Department of Justice, and received her approval. The final rule will 
be submitted to the Attorney General through the Assistant Attorney 
General for final approval pursuant to 28 CFR 42.403(c)(3).

II. Overview of This Proposed Rulemaking

A. Sub-Part D: Compliance Information Requirements for Recipients of 
EPA Financial Assistance

    The EPA proposes to amend Sec.  7.85(b) by deleting the following 
text describing when additional information will be sought from 
recipients--``where there is reason to believe that discrimination may 
exist in a program or activity receiving EPA assistance.'' In this same 
regulatory section, the EPA also proposes deleting ``and shall be 
accompanied by a written statement summarizing the complaint or setting 
forth the basis for the belief that discrimination may exist.'' These 
changes reaffirm the agency's existing authority to use compliance 
reviews to identify and resolve compliance concerns with recipients of 
EPA financial assistance to prevent costly investigations and 
litigation. Compliance reviews are an important part of the 
implementation of all EPA programs and essential to the functioning of 
comprehensive compliance and enforcement efforts. EPA will work with 
states and other recipients of financial assistance to ensure that 
compliance reviews are focused on a review of data and information that 
is relevant to determining compliance. EPA solicits comments on how to 
schedule and conduct compliance reviews in ways that minimize 
unnecessary burdens to both EPA and the recipients.
    Further, the revised language is consistent with the regulatory 
provisions of more than twenty other federal agencies with regard to 
the routine collection of data and information from recipients. Several 
of those federal agencies have successful compliance review programs 
that have been well-established for many years, so the concept of 
conducting compliance reviews is something with which EPA's external 
stakeholders should already have a great deal of familiarity based on 
engagement with those other federal agencies. In other words, this 
proposed rule is not a significant change, as it affords the EPA the 
same discretion and flexibility granted to those agencies in their 
compliance reviews. Such routine collection is also considered a best 
practice for Title VI programs as reflected in the Department of 
Justice's Coordination Regulations, which require federal agencies to 
``provide for the collection of data and information from applicants 
for and recipients of federal assistance sufficient to permit effective 
enforcement of Title VI,'' 28 CFR 42.406(a). Thus, this proposed rule 
is intended to clarify the EPA's ability to access such information 
under the current regulations, while providing the flexibility to 
establish a successful compliance review program and improve the EPA's 
External Compliance and Complaints Program. The EPA is requesting 
comment on EPA's proposed modifications to its compliance review 
regulations; especially its proposed phased-approach to conducting 
compliance reviews that is discussed in the accompanying cost analysis.
    Additionally, this proposed rule gives the EPA discretion to 
require recipients to submit compliance reports. This proposed rule 
would, as demonstrated by the successful compliance report programs of 
sister agencies, be an invaluable tool in prioritizing complaint 
investigations, selecting recipients for compliance reviews, and 
conducting targeted outreach to provide technical assistance. 
Currently, Sec.  7.85 of the regulation imposes an obligation ``to 
collect, maintain, and on request . . . provide'' specific information 
to the EPA. Similarly, Sec.  7.115 notifies recipients that the EPA may 
request ``data and information'' pertaining to any recipient's programs 
or activities receiving EPA assistance. Consistent with Sec.  7.35, 
recipients of EPA assistance are also responsible for collecting such 
reports from any entity through which a recipient operates the program 
and activity receiving EPA financial assistance, including sub-
recipients, licensees, or contractors. In other words, recipients 
already have a regulatory obligation to collect and maintain relevant 
information. With this proposed rule, recipients may be asked to submit 
a report containing the relevant and current information. Adding this 
proposed rule allows the EPA to more proactively enforce Title VI and 
other nondiscrimination obligations. This proposed modification makes 
clear that compliance reports would be required at such times and in 
such form and containing such information as the EPA may determine to 
be necessary to enable the EPA to ascertain whether the recipient has 
complied or is complying with 40 CFR part 7. The proposed regulation, 
however, does not identify or prescribe the exact content of such 
reports. The EPA is requesting written comment on the content, 
frequency and prioritization of which recipients will be expected to 
submit compliance reports. During the notice and comment period, the 
EPA will also engage stakeholders through listening sessions in order 
to explore the compliance reports process and their content. At this 
time, the EPA's estimate of the potential burden associated with 
compliance with this proposed regulation is based on assumptions about 
what type of information a recipient will be required to include in 
such a report--from involving the compilation or gathering of pre-
existing information, including information specifically identified in 
the current regulations and Standard Form 4700-4, to including 
information related to public involvement, limited English proficiency, 
or data and information demonstrating that the program or activity 
receiving the EPA assistance complies with its nondiscrimination 
obligations.
    The EPA understands that stakeholders may have questions about what 
specific information should be contained in such reports. Accordingly, 
the EPA may continue to request compliance reports related to 
information gathering in the context of compliance reviews and 
complaint investigations conducted under Sec. Sec.  7.110, 7.115, and 
7.120. However, the EPA does not intend to request compliance reports, 
unrelated to compliance reviews and complaint investigations, from 
recipients any sooner than 90 days after it has drafted guidance about 
such reports, sought

[[Page 77287]]

stakeholder input on the guidance, put the guidance out for notice and 
comment, and finalized the guidance. This process will allow the EPA, 
recipients, and other stakeholders to work collaboratively to improve 
the EPA's External Compliance and Complaints Program.

B. Sub-Part E: Agency Compliance Procedures

1. Post-Award Compliance
    Under the current regulations, on-site reviews for post-award 
compliance may occur when the Office of Civil Rights (OCR) ``has reason 
to believe that discrimination may be occurring in such programs or 
activities.'' For the reasons set forth above, the EPA proposes 
amending 40 CFR 7.110(a) and 7.115(a), to affirm the OCR's flexibility 
and discretion to structure how it conducts pre-award and post-award 
compliance reviews. This modification is consistent with the Title VI 
regulations of more than twenty other federal agencies.
    Additionally, the EPA proposes to remove the provision to provide 
post-review notice to a recipient within 180 calendar days from the 
start of a compliance review or complaint investigation pursuant to 40 
CFR 7.115(c)(1). Instead of this calendar deadline, the EPA proposes to 
conform to the regulations of over twenty other federal agencies that 
state that complaints will be ``promptly'' investigated. The EPA 
proposes to adopt this language because it has found that this self-
imposed, inflexible deadline is impracticable given the inherent 
scientific complexity associated with determining which and how 
populations are impacted by environmental pollutants; the number of 
discrimination allegations and theories that may be asserted in any one 
complaint under Title VI or the other nondiscrimination statutes; and 
the volume of the complaints received. Without the burden of an 
unrealistic, self-imposed deadline, the EPA will be in a better 
position to improve the entire External Compliance and Complaints 
Program, including the compliance review and reports efforts discussed 
above. Even without this deadline, the EPA still must promptly 
investigate complaints.
2. Complaint Investigations
    This proposed rule removes the introductory text of 40 CFR 7.120 
concerning the investigation of ``all complaints'' and to adopt 
language, substantially similar to the regulations of other federal 
agencies, requiring investigation of complaints that ``indicate a 
possible failure to comply.'' This change will allow the EPA to 
prioritize and dedicate resources to complaints that--after an initial 
review--reveal a possible failure to comply. Yet, the proposed rule 
does not alter the reasons for rejecting or closing a complaint upon 
which the EPA and other agencies have relied. Instead, the proposed 
regulatory language clarifies the agency's discretion to pursue a path 
to resolution in light of the particular facts of each case. The EPA 
seeks to conform to the regulatory text of its sister agencies in order 
to affirm that it will not seek to impose a one-size fits all approach 
to resolution. In other words, the proposed rule is intended to reflect 
that a path to resolution must be tailored to the specific facts of the 
case and such a path may not be identical for every complaint. Not 
every complaint, for example, will require the completion of a costly 
and time-consuming investigation in order to resolve it.
    This proposed rule also removes the deadline for notifying 
complainants and recipients of receipt of a complaint against the 
recipient and for reviewing a complaint for acceptance, rejection, or 
referral to the appropriate federal agency. Currently, the EPA's 
notification regulation requires the EPA to notify the complainant and 
the recipient of receipt of a complaint within five calendar days under 
40 CFR 7.120(c). The current regulations also require the EPA to 
initiate complaint processing procedures by conducting a jurisdictional 
review to determine whether to accept, reject, or refer a complaint 
within twenty calendar days of acknowledgement of the complaint.
    The current regulatory provisions imposing a deadline on complaint 
notification and jurisdictional review are unique to the EPA. This 
proposed rule removes these deadlines and, as with complaint 
investigations, it proposes that the EPA will ``promptly'' acknowledge 
receipt of a complaint and issue a decision on whether a complaint is 
accepted, rejected, or referred. The substitution of ``promptly'' for 
specific deadlines ensures EPA has the flexibility to improve its 
External Compliance and Complaints Program. The EPA believes this 
removal is not only reasonable, but will provide EPA with the 
flexibility and time necessary to complete a comprehensive and thorough 
initial review to identify the most appropriate path to resolve the 
complaint. Although, as reflected in the regulations of more than 
twenty other federal agencies, it is not common practice to include 
specific deadlines, the EPA is fully committed to processing complaints 
and compliance reviews expeditiously. In fact, the EPA intends, like 
other federal agencies, to create internal procedures and policies to 
provide guidance to staff, including the expectation that a 
determination of what constitutes reasonably prompt action varies based 
on the stage of administrative processing. For instance, a purely 
administrative task, (such as, issuing an acknowledgment of a 
correspondence), will take significantly less time than the more 
complex and nuance evaluation associated with conducting jurisdictional 
reviews, investigations and compliance reviews. Nonetheless, as 
discussed above with complaint investigations, because of the volume 
and complexity of the complaints that the EPA receives, these self-
imposed regulatory deadlines have proven to be impracticable, even at 
these early stages.

C. Paperwork Reduction Act Technical Correction

    The EPA proposes to remove the reference to expired OMB control 
number 2000-0006 which currently appears after the text of 40 CFR 7.80 
and 7.85. The OMB control number for the collection of information 
under the EPA's 40 CFR part 7 regulations is OMB control number 2030-
0020. Because no person is required to respond to an information 
collection request regulated by the Paperwork Reduction Act unless a 
valid control number assigned by OMB is displayed in 40 CFR part 9, 
another part of the Code of Federal Regulations, a valid Federal 
Register notice, or by any other appropriate means, the EPA proposes to 
add the citation for the OMB control no. 2030-0020 and the provisions 
in 40 CFR part 7 under which the OCR collects information from 
applicants and recipients to the table located in 40 CFR part 9. These 
technical corrections will provide clarity to applicants and recipients 
of EPA assistance regarding which Information Collection Request 
control number applies to the EPA's requests for information under 40 
CFR part 7.

III. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review. The EPA prepared an analysis of the potential costs and 
benefits associated with this

[[Page 77288]]

action. A copy of the analysis is available in the docket for this 
action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This proposed rule will allow the EPA to enforce civil rights laws. It 
therefore falls under the exemption to the Paperwork Reduction Act 
found at 44 U.S.C. 3518(e) that exempts agencies from Paperwork 
Reduction Act requirements when they are exercising their substantive 
enforcement authority regarding civil rights laws. Even though this 
action is covered by the section 3518(e) exemption, this action is 
covered by an Information Collection Request that was approved by the 
Office of Management and Budget in June 2015. The information 
collection request contained in the existing regulations at 40 CFR part 
7 was assigned OMB control number 2030-0020. The OMB control numbers 
for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. The deadline and technical amendments 
being proposed are not expected to have a direct impact on any grant 
recipients. The direct cost to any particular entity under a compliance 
review will not increase because they already are potentially subject 
to compliance reviews under the existing regulations. The impact of the 
proposed amendments related to compliance report requirements for any 
particular entity would only be the cost of assembling data and 
information that it already must collect and maintain under the 
existing regulations. We have therefore concluded that this action will 
have no net regulatory burden for all directly regulated small 
entities.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, the EPA nonetheless 
has tried to reduce the impact of this proposed rule on small entities. 
(See Economic Analysis in the docket for this rulemaking for more 
detailed information on potential impacts.)
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues relating 
to such impacts.

D. Unfunded Mandates Reform Act

    This action does not contain any mandate as described in UMRA, 2 
U.S.C. 1531 through 1538, and does not significantly or uniquely affect 
small governments. Because this proposed rule enforces statutory rights 
that prohibit discrimination as described in the exception at 2 U.S.C. 
1503(2), it is not subject to the requirements of section 202 or 205 of 
the UMRA.

E. Executive Order 13132: Federalism

    This proposed rule does not have federalism implications. It will 
not have substantial direct effects 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.
    In the spirit of Executive Order 13132, and consistent with the EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
rule from state and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not directly impose any new obligations on 
the federally recognized tribes that receive or apply for EPA financial 
assistance. Moreover, the proposed rule would not impose compliance 
costs on tribes or preempt tribal law. Therefore, consultation under 
Executive Order 13175 is not required.
    However, EPA welcomes the views of tribes and is interested in 
considering any comments that tribes may offer on the proposed rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the 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 That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This proposed rule does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 establishes federal executive policy on 
environmental justice. Its main provision directs federal agencies, to 
the greatest extent practicable and permitted by law, to make 
environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    The EPA believes that improving its External Compliance and 
Complaints Program will have a positive impact on the agency's efforts 
to advance environmental justice. More precisely, by bringing the EPA's 
regulations into alignment with the regulations of more than twenty 
other agencies, the EPA will have the regulatory tools necessary to 
exercise its discretion to make the complex determination of what sorts 
of disparate impacts upon communities constitute ``sufficiently 
significant social problems,'' and are ``readily enough remediable, to 
warrant altering the practices of the federal grantees that had 
produced those impacts.'' Alexander v. Choate 469 U.S. 287, 293-294 
(1985). Such regulatory tools also will improve the EPA's External 
Compliance and Complaints Program by forging an appropriate path to 
resolution tailored to the specific facts and circumstances of each 
matter. However, the EPA welcomes comments from minority, low-income or 
indigenous populations about these proposed regulatory modifications.

List of Subjects

40 CFR Part 7

    Environmental protection, Administrative practice and procedure, 
Age discrimination, Civil rights, Equal employment opportunity, 
Individuals with disabilities, Reporting and

[[Page 77289]]

recordkeeping requirements, Sex discrimination.

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

    Dated: December 1, 2015.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, the EPA proposes to amend 
title 40, chapter I of the Code of Federal Regulations as follows:

PART 7--NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES RECEIVING 
FEDERAL ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY

0
1. The Authority citation for part 7 continues to read as follows:

    Authority:  42 U.S.C. 2000d to 200d-7 and 6101 et seq.; 29 
U.S.C. 794; 33 U.S.C. 1251nt.

Subpart D--Requirements for Applicants and Recipients


Sec.  7.80  [Amended]

0
2. Section 7.80 is amended by removing the parenthetical citation 
``(Approved by the Office of Management and Budget under control number 
2000-0006)'' following paragraph (c)(3).
0
3. Section 7.85 is amended by:
0
a. Revising paragraph (b);
0
b. Redesignating paragraphs (f) and (g) as paragraphs (g) and (h) 
respectively, and adding a new paragraph (f); and
0
c. Removing the parenthetical citation ``(Approved by the Office of 
Management and Budget under control number 2000-0006)'' following the 
newly redesignated paragraph (h).
    The revisions and additions read as follows:


Sec.  7.85  Recipients.

* * * * *
    (b) Additional compliance information. If necessary, the OCR may 
require recipients to submit data and information specific to certain 
programs or activities to determine compliance or to investigate a 
complaint alleging discrimination in a program or activity receiving 
EPA assistance. Requests shall be limited to data and information which 
is relevant to determining compliance.
* * * * *
    (f) Compliance reports. Each recipient shall keep such records and 
submit to the OCR timely, complete, and accurate compliance reports at 
such times, and in such form and containing such information, as the 
OCR may determine to be necessary to enable the OCR to ascertain 
whether the recipient has complied or is complying with this subpart. 
In general, recipients should have available for the Agency the racial 
composition of affected neighborhoods. In the case in which a primary 
recipient extends federal financial assistance to any other recipient 
or subcontracts with any other person or group, such other recipient 
shall also submit such compliance reports to the primary recipient as 
may be necessary to enable the primary recipient to carry out its 
obligations under this Subpart.
* * * * *

Subpart E--Agency Compliance Procedures


Sec.  7.110  [Amended]

0
4. Section 7.110 paragraph (a), fourth sentence is amended by removing 
``only when it has reason to believe that discrimination may be 
occurring in a program or activity which is the subject of the 
application''.


Sec.  7.115  Postaward compliance.

0
5. Amend Sec.  7.115 by revising paragraphs (a) and (c)(1) to read as 
follows:
    (a) Periodic review. The OCR may periodically conduct compliance 
reviews of any recipient's programs or activities receiving EPA 
assistance, including the request of data and information, and may 
conduct on-site reviews.
* * * * *
    (c) * * * (1) The OCR will notify the recipient in writing by 
certified mail, return receipt requested, of:
* * * * *
0
6. Amend Sec.  7.120 by revising the introductory text and paragraphs 
(c) and (d)(1)(i) to read as follows:


Sec.  7.120  Complaint investigations.

    The OCR will make a prompt investigation whenever a complaint 
indicates a possible failure to comply.
* * * * *
    (c) Notification. The OCR will notify the complainant and the 
recipient of the agency's receipt of the complaint.
    (d) * * *
    (1) * * * (i) After the acknowledgment, the OCR will promptly 
review the complaint for acceptance, rejection, or referral to the 
appropriate Federal agency.
* * * * *

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

0
7. The Authority citation for part 9 continues to read as follows:

    Authority:  7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 
2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 
9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 
1330, 1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 
CFR 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 
300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-
2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 
7542, 9601-9657, 11023, 11048.

0
8. In Sec.  9.1, the table is amended by adding the heading titled 
``Nondiscrimination in Programs or Activities Receiving EPA 
Assistance'' and entries 7.80, 7.85, 7.110, and 7.115 above the heading 
``Protection of Human Subjects'' to read as follows:


Sec.  9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                   40 CFR citation                      OMB control No.
------------------------------------------------------------------------
                                * * * * *
------------------------------------------------------------------------
  Nondiscrimination in Programs or Activities Receiving EPA Assistance
------------------------------------------------------------------------
7.80.................................................          2030-0020
7.85.................................................          2030-0020
7.110................................................          2030-0020
7.115................................................          2030-0020
 
                                * * * * *
------------------------------------------------------------------------

* * * * *
[FR Doc. 2015-31050 Filed 12-11-15; 8:45 am]
 BILLING CODE 6560-50-P