[Comments on Whether EPA Interim Guidance Is a Rule Under the Congressional Review Act] Page: 4 of 6
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of Federal Regulations (C.F.R.). The section then lists eight stages of the process.4 The
majority of these stages contain citations to and follow procedures in EPA's current
regulations.
The second section sets forth the steps to be taken in conducting a Disparate Impact
Analysis. The five steps are:
(1) Identifying the Affected Population;
(2) Determining the Demographics of the Affective Population;
(3) Determining the Universe(s) of the Facilities and Total Affected
Population(s);
(4) Conducting the Disparate Impact Analysis; and
(5) Determining the Significance of the Disparity.
Under each step guidance is provided to OCR personnel as to how they may proceed. For
example, "Step 2: Determining the Demographics of the Affected Population" states:
The second step is to determine the racial and/or ethnic composition of
the affected population for the permitted facility at issue in the complaint.
To do so, OCR uses demographic mapping technology such as Geographic
Information Systems (GIS). In conducting a typical analysis to determine
the affected population, OCR generates data estimating the race and/or
ethnicity and density of populations within a certain proximity from a
facility or within the distribution pattern for a release/impact based on
scientific models. OCR then identified and characterizes the affected
population for the facility at issue. If the affected population for the
permit at issue is of the alleged racial or ethnic group(s) named in the
complaint, then the demographic analysis is repeated for each facility in
the chosen universe(s) of facilities discussed below.
The introduction to the Disparate Impact Analysis section explains that OCR will not use any
single technique for analyzing and evaluating disparate impact allegations but will use several
techniques within a broad framework.
Analysis
EPA argues that the Interim Guidance does not constitute a "rule" under the CRA and need
not be submitted to Congress and our Office because it is a non-binding, internal document
that merely informs agency personnel how OCR intends to process Title VI complaints.
Therefore, EPA argues that the Interim Guidance falls under the CRA exemption in 5 U.S.C.
804(3)(C) as a "rule of agency organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency parties."
While EPA's characterization of its action is a factor to be considered, it is not dispositive.
Rather it is the substance of what EPA has purported to do and has done which is decisive.
4Acceptance of the Complaint, Investigation/Disparate Impact Assessment, Rebuttal/Mitigation, Justification, Preliminary Finding
of Noncompliance, Formal Finding of Noncompliance, Voluntary Compliance, and Informal Resolution.B-281575
Page 4
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United States. General Accounting Office. [Comments on Whether EPA Interim Guidance Is a Rule Under the Congressional Review Act], text, January 20, 1999; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc294739/m1/4/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.