The U.S. Environmental Protection Agency (EPA) recently announced a 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 Andrew Wheeler, EPA administrator. “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.”

The EPA reports that this new rule will increase the transparency of the agency’s practices around guidance and will improve its 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
• 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

A central principle of last year’s Executive Order (EO) 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, 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 impact the public, and EO 13891 recognizes that these documents warrant a thorough review prior to issuance. In addition, the EPA launched a new guidance portal on February 28, 2020, that provides public access to agency guidance documents.