On May 19, 2020, the U.S. Environmental Protection Agency (EPA) proposed a rule to establish consistent requirements and procedures for the issuance of guidance documents. AGC has raised concerns previously with the use of guidance documents as “back-door regulations.” EPA Administrator Andrew Wheeler called the proposal, “…[A] major step toward increasing transparency in EPA processes and ensuring that EPA is not creating new regulatory obligations through guidance.” Comments are due on the proposal by June 22, 2020.
The proposal would--
- 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 proposal comes in response to Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents (October 9, 2019), that charges agencies to make available to the public all active guidance documents and use the documents only as a tool to clarify existing obligations – see related AGC article. On Feb. 28, 2020, EPA launched a new Guidance Portal that provides public access to agency guidance documents. EPA also opened separate portal where stakeholders cab submit a petition to the Agency requesting withdrawal or modification of any guidance document included in EPA's Guidance Portal.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.