On May 19, 2020, the U.S. Environmental Protection Agency (EPA) released its “first ever” proposed rule to improve the transparency of guidance to industry. Specifically, EPA proposes to institute standardized procedures for development, dissemination, and management of regulatory guidance documents issued under EPA programs.
The proposed rule responds to Executive Order 13891, signed by President Trump in October 2019, entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents.” Among other things, EO 13891 directed federal agencies to construct an indexed database of all active guidance documents and to finalize regulations that “set forth processes and procedures for issuing guidance documents.” EO 13891 reinforced that guidance should clarify existing obligations; it should not be a vehicle for implementing new, binding requirements on the public. Agencies may impose binding requirements on the public “only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law or as incorporated into a contract.”
Consistent with EO 13891, EPA has begun to curate an online portal with links to active guidance documents that the Agency anticipates to be fully updated by the end of June 2020. Similarly, the new proposed rule is anticipated to “significantly increase the transparency of EPA’s practices around guidance and will improve the agency’s process for managing guidance documents.” When final, the rule will:
- Establish the first formal petition process for the public to request that EPA modify or withdraw a guidance document;
- Ensure that the agency’s guidance documents are developed with appropriate review and are accessible and transparent to the public; and
- Provide for public participation in the development of significant guidance documents.
The proposed rule, if finalized without significant changes, would provide several important benefits to regulated entities. In particular, the rule would limit the scope of guidance documents including frequently asked questions, memorandums, and advisories. As industry advocates have noted, EPA has increasingly relied on informal guidance over the past several decades in what some critics describe as an end-run around formal notice-and-comment rule making. Taken together, the online portal and proposed reforms could halt this trend and promote clarity as to regulated entities’ actual compliance obligations. Perhaps more importantly, establishment of formal petition processes to request modification or withdrawal of specific guidance documents would create “final agency action” subject to judicial review.
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