Environmental Protection Agency Rescinds Procedural Regulation for Guidance Documents

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On May 11, 2021, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed a Final Rule rescinding EPA regulation, 40 C.F.R. Part 2, Subpart D, which final rule becomes effective upon publication in the Federal Register. The rescinded rule – previously effective Nov. 18, 2020, based upon Federal Register publication dated Oct. 19, 2020 – was prompted by the prior administration's Executive Order (E.O.) 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents (Oct. 15, 2019), which directed federal agencies to develop regulations to set forth processes and procedures for issuing guidance documents. E.O. 13891 was revoked on Jan. 20, 2021, by President Joe Biden in E.O. 13992, Revocation of Certain Executive Orders Concerning Federal Regulation. According to E.O. 13992, the rescission is warranted to equip agencies with the flexibility to use robust regulatory action to address national priorities and revoke harmful policies that threaten to frustrate the federal government's ability to confront these problems.

Thus, the EPA concluded that the prior rule governing procedural requirements for developing guidance deprives the EPA of necessary flexibility in determining when and how best to issue public guidance based on particular facts and circumstances, and unduly restricts the EPA's ability to provide timely guidance on which the public can confidently rely. In addition, EPA notes:

The revisions to the EPA's policies and requirements surrounding guidance are matters of agency organization, procedure, or practice that lack the force and effect of law. Accordingly, the EPA is not required to engage in a notice and comment process to issue or revise internal procedures under the Administrative Procedure Act (APA). … The EPA is providing an immediate effective date for this rulemaking because it is procedural rather than substantive. The APA's requirement, 5 U.S.C. 553(d), that substantive rules not be effective until at least 30 days after publication in the Federal Register is inapplicable because this rulemaking is procedural.

This is good news for opponents of the prior administration, many of whom filed comments in the regulatory Docket ID No. EPA-HQ-OA-2020-0128 and who believed the rule would enable industry to avoid requirements embodied in guidance documents – a point which was disputed by some comments. While it is true that the pre-existing procedure allowing petitions to EPA seeking adoption or revision of a regulation, practitioners know that process can be time-consuming and ineffective. Thus, all stakeholders, including those traditionally on opposite sides of an environmental issue, are relegated to the same processes for advocating their positions, and EPA is left in the driver's seat when it comes to promulgating guidance documents.

That said, as described in Holland & Knight's prior blog, "Upcoming Deadlines Impacting EPA Guidance Policies" (June 15, 2020), at the time the now-rescinded rule was subject to comment, there are benefits for having a single searchable database to look for applicable guidance documents. That effort, to collect and consolidate current guidance documents in a single searchable EPA website, remains a valuable exercise and tool that was not rescinded by the current administration's rescission rule. Making the applicable guidance documents equally available to all stakeholders was a benefit that should not be lost by the change of administrations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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