
Daniel T. McKillop
Partner
201-896-7115 dmckillop@sh-law.comFirm Insights
Author: Daniel T. McKillop
Date: October 13, 2020
Partner
201-896-7115 dmckillop@sh-law.comThe U.S. Environmental Protection Agency (EPA) recently finalized a rule that aims to improve transparency and establish consistent procedures for the issuance of agency guidance documents. The Final Rule was drafted in response to President Donald Trump’s Executive Order 1381, which directed federal agencies to improve agency guidance practices.
The regulation establishes general requirements and procedures for certain guidance documents issued by the EPA and incorporates additional requirements for guidance documents determined to be significant guidance. It also establishes procedures for the public to petition for the modification or withdrawal of active guidance documents or to petition for the reinstatement of a rescinded guidance document.
According to the EPA, the new regulation is intended to increase the transparency of the EPA’s guidance practices and improve the process used to manage EPA guidance documents. As stated in the Final Rule:
Implementing these procedures will lead to enhanced transparency and help to ensure that guidance documents are not improperly treated as legally binding requirements by the EPA or by the regulated community. Moreover, this regulation defines “guidance document” to provide greater clarity to the public regarding the scope of documents subject to these procedures. This regulation will improve the ability of members of the public to identify the guidance documents that the EPA uses and relies upon, resolving any concerns over the difficulty assessing the final, effective, active guidance of the Agency.
The procedures contained in the Final Rule apply to guidance documents, which are defined as all “statement[s] of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation.” Below are several other key provisions of the Final Rule:
Going forward, the EPA will maintain an EPA Guidance Portal listing all effective, active EPA guidance documents that satisfy the definition in the Final Rule. As set forth in the Final Rule, any guidance document omitted from the portal “does not represent an active guidance document of the Agency and will have no effect except to establish historical facts.”
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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