On May 19, 2020, the U.S. Environmental Protection Agency (EPA) announced a draft rule designed to increase transparency through improved public access and input on Agency guidance. This rule, when final, will establish procedures and requirements for how EPA will manage guidance development. It marks the first time EPA is proposing a rule that codifies procedures ensuring the public has the opportunity to comment on and review Agency guidance documents prior to their release in final form. These documents have often been said to nearly equate to a rulemaking, given they contain operational details, decision criteria, and guidelines that are used to implement regulations. Thus, public input is a critical step to ensuring that guidance documents only clarify versus implement new requirements. This goal is consistent with Executive Order 13891, titled Promoting the Rule of Law Through Improved Agency Guidance Documents, issued by President Trump on October 9, 2019.

 

In an EPA Press Release issued on May 19, 2020, the Agency states that when final, this rule will:

 

  • 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
  • Provide for public participation in the development of significant guidance documents

 

U.S. House of Representatives Energy and Commerce Committee Chair Greg Walden (R-OR) and Environment and Climate Change Subcommittee Republican Ranking Member John Shimkus (R-IL) issued the following statement regarding this proposed rule.

 

“..For far too long, EPA circumvented the rulemaking process through its use of guidance documents, which often led to significant burdens on American communities, businesses, and workers. Guidance documents typically have not been subject to a fair and transparent process for public review and comment, such as the last administration’s Waters of the U.S., or WOTUS, guidance. Today’s proposal creates more accountability and transparency in the guidance process…”

 

A copy of the draft rule is available HERE.