By Jeryl L. OlsonAndrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: This U.S. Environmental Protection Agency (EPA) proposed rule would provide “procedures for developing and issuing guidance documents and to establish a petition process for public requests to modify or withdraw an active guidance document.”

We have previously blogged on agency guidance documents. See President Issues Executive Orders on Guidance Documents and Transparency; Still Business-Friendly Times – DOJ Limits the Use of Agency Guidance Documents in Civil Enforcement; and Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement.

The purpose of the EPA’s proposed rules are to ensure EPA guidance documents:

  • Are developed with appropriate review;
  • Are accessible and transparent to the public;
  • Are subject to public participation;
  • Meet standard elements established for guidance documents and “significant guidance documents”; and
  • Contain procedures for the public to request that an active guidance document be modified or withdrawn.

The proposed rule is intended to be consistent with Executive Order (EO) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” .

The proposed rulemaking will not necessarily change the utility of guidance documents; EPA guidance documents will continue to be  legally non-binding. The rule will however ensure that EPA works with stakeholders to develop guidance documents, provide opportunities for public review and comment on the draft guidance document, and announces the availability of final guidance documents. The proposed regulation will also establish a portal to allow the public to more easily identify Agency guidance documents.

The public comment period will end 30 days after publication of the proposed rule in the Federal Register; for assistance in providing comments or for more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.