On Oct. 9, 2019, President Trump issued an executive order, "Promoting the Rule of Law Through Improved Agency Guidance Documents." It declared that agencies sometimes used guidance documents "to regulate the public without following the rulemaking procedures" of the Administrative Procedure Act. It directed that agencies must treat guidance documents as nonbinding in both law and practice, take public input into account in formulating guidance documents and make guidance documents readily available to the pub
John B. King, Partner, Breazeale, sachse & Wilson LLP
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According to EPA, the rule meets these requirements and more. The rule provides definitions of "guidance document" and "significant guidance document;" the minimum requirements for a guidance document and additional requirements for significant guidance documents; procedures for the public to petition the agency for modification or withdrawal of guidance documents; and an online portal -- the EPA Guidance Portal -- to identify EPA guidance documents for the public.
A guidance document is a statement of general applicability, intended to have future effect on the behavior of regulated parties, which sets forth a policy on a statutory, regulatory or technical issue, or an interpretation of a statute or regulation. There are a few exclusions from this broad definition, such as rules subject to notice and comment and rules of agency procedure and practice, or internal guidance not intended to have substantial future effect on the behavior of regulated parties. Generally, a significant guidance document is one that may reasonably be anticipated to lead to an annual effect on the economy of $100 million or more.
All guidance documents must, among other things, include the term "guidance," include the citation to the statute or regulation to which the guidance document applies or which it interprets, and avoid mandatory language such as "shall" or "must." Further, it must include a disclaimer that the contents do not have the force and effect of law, and that it does not bind the public in any way. Importantly, any guidance document issued by an EPA Regional Office must receive concurrence from an appointed official at EPA headquarters. A significant guidance document must adhere to these requirements, and it must also be subject to notice and comment before finalization.
EPA also included a provision allowing any member of the public to petition EPA for the modification, withdrawal or reinstatement of a guidance document. EPA will make information about received petitions available to the public and indicated it should respond to a petition no more than 90 calendar days after receiving it.
Finally, the rule requires that all guidance documents be included in the EPA Guidance Portal. The portal is currently active (www.EPA.gov/guidance) and contains the documents meeting the definition of a guidance document. The portal contains the disclaimer that EPA's guidance documents lack the force and effect of law, and the EPA may not cite, use or rely on any guidance not included in the portal.
The executive order and the rule allow the issuance and use of guidance documents while providing public input and access and general procedures for issuance. Of greater significance and importance to the regulated community, there is some relief from the use of binding guidance documents issued without public knowledge or input.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney of enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
