EPA this week rescinded its October 2020 rule establishing certain internal agency procedures and requirements concerning the issuance, revision and withdrawal of guidance documents, including those related to public engagement and petitions for review.  According to EPA, the rule deprived the Agency of necessary flexibility to issue timely and reliable guidance to the public.  

As previously noted, the rule was originally promulgated in response to President Trump’s Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” (84 Fed. Reg. 55235, Oct. 15, 2019).  However, in January 2021, President Biden issued Executive Order 13992, “Revocation of Certain Executive Orders Concerning Federal Regulation,” directing federal agencies to rescind any rules or regulations implementing or enforcing Executive Order 13891.  EPA is now rescinding the guidance procedures, effective immediately. 

Although the guidance procedures reflected a number of reforms NACWA advocated for, the final rule also included several conflicting provisions that called into question its legal effect and utility.  Additionally, EPA notes that it will continue efforts to promote transparency and public involvement in the development of guidance documents going forward.  Likewise, stakeholders can continue to petition EPA at any time to issue, amend, or repeal guidance documents under well-established Administrative Procedure Act processes.   

Importantly, EPA also intends to continue to make its guidance documents available to the public on its website at https://www.epa.gov/guidance.  NACWA supported the establishment and maintenance of this organized guidance portal to increase public transparency and help regulated entities gain easier access to key information.

Members should contact Amanda Aspatore, NACWA’s Chief Legal Counsel or Emily Remmel, NACWA’s Director of Regulatory Affairs, for more information.