In a May 18, 2021 Federal Register notice, the U.S. Environmental Protection Agency (EPA) rescinded its final rule EPA Guidance; Administrative Procedures for Issuance and Public Petitions, which was originally published in the Federal Register on October 19, 2020 under the Trump Administration. Often referred to simply as the Guidance Rule, it established procedures and requirements for how EPA would manage guidance document issuance to be consistent with Executive Order (E.O.) 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents. E.O. 13891 was revoked by President Biden’s January 20, 2021 E.O. titled Revocation of Certain Executive Orders Concerning Federal Regulation.
President Biden’s E.O. states that it is the policy of the Administration ‘‘to use available tools to confront the urgent challenges facing the Nation, including the Coronavirus disease 2019 (COVID–19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities.” This E.O. provides Federal agencies greater latitude surrounding guidance development and issuance. More specifically, EPA will not be required to engage in a notice and comment process to issue or revise internal procedures under the Administrative Procedure Act, which provides that an Agency may issue interpretive rules, general statements of policy, or rules of Agency organization, procedure, or practice without providing notice and an opportunity for public comment. Many fear that this will lead to less transparency and the inability of the public to weigh in on development and ultimate program implementation of regulatory requirements.