Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

EPA Issues Final Rule Overhauling Procedures for Issuing Agency Guidance

Author: Daniel T. McKillop

Date: October 13, 2020

Key Contacts

Back

EPA finalized a rule that aims to improve transparency and establish consistent procedures for the issuance of agency guidance documents…

EPA Issues Final Rule Overhauling Procedures for Issuing Agency Guidance

The 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to petition for the modification or withdrawal of active guidance documents or to petition for the reinstatement of a rescinded guidance document.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.

New Procedures for EPA Guidance

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:

  • General Requirements for Guidance: The Final Rule establishes several requirements for EPA guidance. Notably, guidance must include a disclaimer stating that the contents of the guidance document do not have the force and effect of law, and that the Agency does not bind the public in any way and intends only to provide clarity to the public regarding existing requirements under the law or Agency policies, except as authorized by law or as incorporated into a contract. When a guidance document is binding because binding guidance is authorized by law or because the guidance is incorporated into a contract, the statement will reflect that. Additionally, a guidance document issued by an EPA Regional Office must receive concurrence from the corresponding Presidentially-appointed EPA official (i.e., the relevant Assistant Administrator or an official who is serving in the acting capacity) at EPA headquarters who is responsible for administering the national program to which the guidance document pertains.
  • Requirements for Significant Guidance: EPA guidance documents are considered “significant” if they are likely to result in any of the following: an annual effect on the economy of $100 million or more; the creation of a serious inconsistency or interfere with an action taken or planned by another agency; a material alteration of the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or novel legal or policy issues arising out of legal mandates or the President’s priorities, or established processes of regulatory planning and review. Similar to the process for enacting or amending regulations, the EPA will make publicly available a draft significant guidance document, including a significant guidance document that is being reinstated, or draft modification of a significant active guidance document, for public comment before finalizing any significant guidance document. The EPA will publish the draft guidance in the Federal register and accept public comments for a period of at least 30 days. The EPA must respond to major concerns and comments received and publish the final guidance in the Federal Register. The Final Rules does provide exceptions to the public comment process, including when doing so is not feasible or appropriate because immediate issuance is required by a public health, safety, environmental, or other emergency and when the Agency for good cause finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest.
  • Procedures for the Public to Petition for Modification/Withdrawal: The public may submit a petition to the EPA for the modification or withdrawal of an active guidance document, or reinstatement of a rescinded guidance document. In order to be considered a valid petition under this section, the petition must address the guidance document in question itself and not merely underlying statutory or regulatory text. The EPA must make information about petitions received available to the public and respond within 90 calendar days.

What’s Next?

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 questions, please contact us

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
How to Conduct a Fair and Legal Employee Termination in 2025 post image

How to Conduct a Fair and Legal Employee Termination in 2025

Ongoing economic uncertainty is forcing many companies to make tough decisions, which includes lowering staff levels. The legal landscape on both the state and federal level also continues to evolve, especially with significant changes to the priorities of the Equal Employment Opportunity Commission (“EEOC”) under the Trump Administration. Terminating an employee is one of the […]

Author: Angela A. Turiano

Link to post with title - "How to Conduct a Fair and Legal Employee Termination in 2025"
Admin Dissolution for Annual Report: What You Need to Know post image

Admin Dissolution for Annual Report: What You Need to Know

While filing annual reports may seem like a nuisance, failing to do so can have significant ramifications. These include fines, reputational harm, and interruption of your business operations. In basic terms, “admin dissolution for annual report” means that a company is dissolved by the government. This happens because it failed to submit its annual report […]

Author: Dan Brecher

Link to post with title - "Admin Dissolution for Annual Report: What You Need to Know"
What Is Antitrust Litigation Law? post image

What Is Antitrust Litigation Law?

Antitrust laws are designed to ensure that businesses compete fairly. There are three federal antitrust laws that businesses must navigate. These include the Sherman Act, the Federal Trade Commission Act, and the Clayton Act. States also have their own antitrust regimes. These may vary from federal regulations. Understanding antitrust litigation helps businesses navigate these complex […]

Author: Robert E. Levy

Link to post with title - "What Is Antitrust Litigation Law?"
Dissolving Your Business: Essential Legal Steps to Protect Your Interests post image

Dissolving Your Business: Essential Legal Steps to Protect Your Interests

If you’re considering closing your business, it’s crucial to understand that simply shutting your doors does not end your legal obligations. Unless you formally dissolve your business, it continues to exist in the eyes of the law—leaving you exposed to ongoing liabilities such as taxes, compliance violations, and potential lawsuits. Dissolving a business can seem […]

Author: Christopher D. Warren

Link to post with title - "Dissolving Your Business: Essential Legal Steps to Protect Your Interests"
The Role of Corporate Restructuring in Mergers & Acquisitions post image

The Role of Corporate Restructuring in Mergers & Acquisitions

Contrary to what many people think, corporate restructuring isn’t all doom and gloom. Revamping a company’s organizational structure, corporate hierarchy, or operations procedures can help keep your business competitive. This is particularly true during challenging times. Corporate restructuring plays a critical role in modern business strategy. It helps companies adapt quickly to market changes. Following […]

Author: Dan Brecher

Link to post with title - "The Role of Corporate Restructuring in Mergers & Acquisitions"
Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public post image

Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public

Cryptocurrency intimidates most people. The reason is straightforward. People fear what they do not understand. When confusion sets in, the common reaction is either to ignore the subject entirely or to mistrust it. For years, that is exactly how most of the public and even many in law enforcement treated cryptocurrency. However, such apprehension changed […]

Author: Bryce S. Robins

Link to post with title - "Crypto Enforcement: A Former Prosecutor’s Warning to Criminals and the Public"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!