On September 14, 2020, the United States Environmental Protection Agency (“U.S. EPA”) issued a final rule intended to promote transparency and establish consistent requirements and procedures for the issuance of guidance documents. Consistent with Executive Order 13891 (Promoting the Rule of Law Through Improved Agency Guidance Documents) that directs federal agencies to finalize regulations that “set forth processes and procedures for issuance of guidance documents,” U.S. EPA’s final rule establishes internal policies and procedures for U.S. EPA’s issuance of future guidance documents and codifies the requirement that U.S. EPA maintain an internet portal that identifies all effective, active U.S. EPA guidance documents.
Under this new regulation, all active “guidance documents” shall appear on the U.S. EPA Guidance Portal. The regulation defines a “guidance document” as “an Agency statement of general applicability, intended to have future effect on behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issues, or an interpretation of a statute or regulation.” Any guidance document that is not posted to the Guidance Portal is not an active U.S. EPA guidance document and will have no effect except to establish historical facts. However, it is important to note the Guidance Portal is only intended to identify documents meeting the definition of “guidance documents,” and documents falling outside of this definition that are not posted to the Guidance Portal may still be in effect.
The new regulation also provides for public notice and comment for “significant guidance documents,” defined as guidance documents determined to be “significant” pursuant to Executive Order 12866 and Executive Order 13891 and includes guidance documents that would have an annual effect on the economy in excess of $100 million or that raise novel legal or policy issues. The regulation provides that U.S. EPA would seek a significance determination from the Office of Information and Regulatory Affairs pursuant to Executive Order 12866.
Finally, the new regulations establish procedures to allow the public to petition U.S. EPA for modification and/or withdrawal of any active guidance document posted on the Guidance Portal. In addition, in response to comments that the new rule will allow U.S. EPA to quietly rescind previously issued guidance by simply not posting the guidance on the Guidance Portal, the new regulations also establish a formal mechanism to allow the public to request that a rescinded guidance document be reinstated and added to the Guidance Portal.