EPA proposal aims to improve transparency of guidance documents

The U.S. EPA on May 19 released a proposed rule that aims to establish consistent requirements and procedures for the issuance of guidance documents. The agency said the rule will increase transparency and improve its process for managing guidance documents.

“For the first time ever, EPA is proposing a rule that codifies procedures to ensure the public can engage in the development and review of agency guidance,” said EPA Administrator Andrew Wheeler. “Historically, EPA has issued many more guidance documents than most federal agencies. Today’s action is a major step toward increasing transparency in EPA processes and ensuring that EPA is not creating new regulatory obligations through guidance.”

One provision of the rule aims to establish a formal petition process for the public to request that EPA modify or withdraw a guidance document. The rulemaking also aims to 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 is related to Executive Order 1389, which President Trump issued on Oct. 9, 2019. That executive order indicates that guidance documents should only clarify existing obligations and are not to be used to implement new binding requirements. It also specifies that documents that will significantly impact the public warrant a thorough review prior to issuance. The executive order defines a significant guidance document as one that would have an annual effect on the economy of $100 million or more, or adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or governments or communities in a material way. Significant guidance documents also include those that would create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandate, the president’s priorities, or the principles of Executive Order 12866, an executive order issued in 1993 that pertains to regulatory planning and review.

EO 13891 also requires federal agencies to maintain on thier websites a single, searchable, indexed database that contains links to all guidance documents in effect from that agency. The EPA launched its new guidance portal to meet that requirement on Feb. 28. The agency said it is continuing to inventory guidance documents and anticipates providing updates before June 27. The agency’s Office of Air and Radiation currently has 910 guidance documents posted within the portal, including several that pertain to the Renewable Fuel Standard and biofuels.

Under the proposed rule, the EPA plans to establish a public review and comment opportunity for all significant guidance documents, whether that document is new, a modification, or a withdrawal of an active guidance document. In general, the EPA would be required to publish a notice in the Federal Register to announce the availability of a new draft significant guidance document and provide a 30-day public comment opportunity prior to issuing the final guidance document. The EPA would also be required to publish a notice in the Federal Register announcing the proposed modification or withdrawal of an active significant guidance document and provide a 30-day public comment opportunity before finalizing the modification or withdrawal of such a document. Draft significant guidance documents would also be posted to the EPA website and labeled appropriately. Public comments made on the draft documents would be made available on either www.regulations.gov or on the EPA website. A notice would also be published in the Federal Register when a new or modified active significant guidance document or withdrawal of an active significant guidance document is finalized.

The proposed rule also aims to establish procedures that would allow members of the public to petition the EPA for the modification or withdrawal of an active guidance document posted on the EPA Guidance Portal. EPA would be required to respond to petitions within 90 days, with some exceptions.

A 30-day public comment period will open on the proposed rule following its publication in the Federal Register. A full copy of the proposed rule can be downloaded from the EPA’s website.

By Erin Voegele | May 19, 2020

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