The Nickel Report

The United States Environmental Protection Agency recently published a final rule on “EPA Guidance; Administrative Procedures for Issuance and Public Petitions.” 85 Fed. Reg. 66,230 (Oct. 19, 2020). The Guidance Rule clarifies the location on the web of certain EPA guidance; provides requirements for guidance development, including for development of particularly significant guidance; and specifies procedures for the public to petition for modification, withdrawal, or reinstatement of guidance. The Guidance Rule is EPA’s response to Executive Order 13891 by President Trump on Promoting the Rule of Law through Improved Agency Guidance Documents and related guidance from the Office of Management and Budget (OMB). The Executive Order and the OMB Guidance both emphasize the need for accessibility and transparency of the guidance process.  The provisions of the Guidance Rule – and their impact on accessibility and transparency– are discussed below.

The Guidance Rule provides that active guidance documents will be available through a Guidance Portal. An “active guidance document” is one that articulates EPA’s policy on “statutory, regulatory, or technical issues” or the agency’s interpretation of a regulation or statute and that is “intended to have future effect on the behavior of regulated parties.” The rule provides numerous important exclusions from the definition, however. Rules, decisions resulting from adjudicatory proceedings, internal legal opinions, and “statements of specific, rather than general, applicability” are among the materials not considered active guidance documents.  These materials will therefore not generally be available from the Guidance Portal.

Because EPA’s active guidance documents must be available through its Guidance Portal, omission of an existing document meeting the definition of an active guidance document from the Portal indicates that document has been rescinded. EPA has not provided a list of such rescinded documents. Nevertheless, EPA may not cite, use, or rely on a rescinded document, except to provide historical context.  The Guidance Rule acknowledges that others are not prohibited from citing rescinded guidance, however.

The Guidance Rule specifies certain requirements for future guidance documents. In the future, all guidance must include the term “guidance,” identify the issuing office, and specify the date it is issued. It must reflect a “unique” identification number. It must reference the activities and entities to whom it applies, as well as the statutory or regulatory provision that it interprets or applies. The guidance must specify its non-binding status, and, in light of that status, should not include mandatory language, such as “shall” or “must.”

The Guidance Rule also establishes further requirements for development of a subset of active guidance documents known as “significant guidance documents.” These documents are expected to have an economic impact of at least $100 million, or otherwise materially affect the economy, an economic sector, productivity, competition, jobs, the environment, public health or safety, or state, local, tribal governments or communities. EPA must publish notice in the Federal Register of a draft new significant guidance document or a plan to withdraw or modify such a significant guidance document. In some cases, a Regulatory Impact Analysis of the planned action may be required. The Agency must generally provide a comment period of at least thirty days on the proposed action, although the Administrator may waive the public comment opportunity for good cause, including when emergency issuance of the guidance is necessary. Notice of final adoption, modification, or withdrawal of the guidance must also appear in the Federal Register.  Only a presidentially appointed EPA official may take any such action or someone acting in a position for which a Presidential appointment is appropriate.

In addition, the Guidance Rule provides for petitions by the public for modification or withdrawal of an active guidance document or reinstatement of a rescinded guidance document.  The rule specifies that EPA will make copies of properly submitted petitions available on the Guidance Portal, but does not provide for public comment on them.  The Guidance Rule provides that EPA will respond to these petitions within ninety days and may extend the deadline for a response for an additional ninety days.  The rule does not specify the form such a response will take or require that it be made public.

Does EPA’s Guidance Rule improve the accessibility and transparency of the agency’s guidance?  Yes, to some extent. The Guidance Portal simplifies the process for accessing active guidance documents, although finding guidance on a particular issue can still be challenging.  In addition, the procedures for developing guidance and for petitioning for changes to guidance add transparency to the process.

Other areas remain opaque and inaccessible, however.  One such area concerns guidance that is not available from the Guidance Portal.  Because EPA has not identified the guidance it has rescinded, it is not always clear whether EPA considers a guidance document that is unavailable from the Guidance Portal not to meet the criteria to be an active guidance document – in which the guidance may still be applicable – or whether that guidance has been rescinded – in which case EPA will not rely on it. This could result in confusion rather than transparency. Moreover, it leaves those outside of EPA who want to rely on such guidance uncertain whether to file for its reinstatement. Another area that could be made more transparent is EPA’s response to public petitions for modification, reinstatement, or withdrawal of guidance. EPA should consider clarifying these matters by identifying the guidance documents it has rescinded and by making public its responses to petitions for guidance changes.