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EPA finalizes first ever rule to promote transparency in developing regulatory guidance documents

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WASHINGTON – On September 14, 2020, at a speech in front of the Federalist Society, U.S. Environmental Protection Agency (EPA) Andrew Wheeler announced the final rule to establish consistent requirements and procedures for the issuance of guidance documents. The final rule follows the direction of President Trump’s Executive Order to promote transparency through improved agency guidance practices throughout the federal government.

“Today’s action is perhaps the biggest change in administrative procedures in a generation and one of the five pillars of EPA reform under President Trump,” said EPA Administrator Andrew Wheeler. “This historic rule guarantees the transparency the public deserves when engaging with the agency. This is a massive step forward for EPA bringing these legal documents into the light.”

The final rule will significantly increase the transparency of EPA’s guidance practices and will improve the agency’s process for managing guidance documents. The rule, among other elements, will:

  • Establishes the first formal petition process for the public to request that EPA modify, withdraw or reinstate a guidance document.
  • Ensure that the agency’s guidance documents are developed with appropriate review and are accessible to the public.
  • Allows 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 American businesses. 

Prior to today’s action, on July 28, 2020, EPA finalized a guidance portal that provides public access to agency guidance documents. In doing so, EPA brought over 9,000 guidance documents out of the darkness and made the entire set of active guidance available to the public for the first time. To access the portal, please visit: https://www.epa.gov/guidance.

For additional information on the rule, please visit: https://www.epa.gov/laws-regulations/epa-guidance-administrative-procedures-issuance-and-public-petitions

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