EPA Proposes First Ever Rule to Improve Transparency of Guidance

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As directed by President Trump’s Executive Order to promote transparency through improved agency guidance, the U.S. Environmental Protection Agency (EPA) is announcing its first-ever proposed rule to establish consistent requirements and procedures for the issuance of 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.”

This new rule will significantly increase the transparency of EPA’s practices around guidance and will improve the agency’s process for managing guidance documents. When final, the rule will:

  • Establish the first formal petition process for the public to request that EPA modify or withdraw a guidance document; and
  • 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.

On October 9, 2019, President Trump issued Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, to promote transparency by ensuring that all active guidance documents are made available to the public. A central principle of EO 13891 is that guidance documents should only clarify existing obligations and that they should not be a vehicle for implementing new, binding requirements on the public. Guidance documents can significantly impact the public and EO 13891 recognizes that these documents warrant a thorough review prior to issuance. In addition to today’s action, on February 28, 2020, EPA launched a new guidance portal that provides public access to agency guidance documents.

The proposed rule will be open for public comment 30 days after it publishes in the Federal Register.

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