20 October 2020

EPA Rule Establishing Requirements and Procedures for Guidance Documents Will Be Effective November 18

The U.S. Environmental Protection Agency (EPA) has published in the Federal Register a final rule establishing the agency’s management of guidance documents consistent with the Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” which will become effective on November 18. The rule provides a definition of guidance document, establishes general requirements and procedures for guidance documents issued by the agency, and incorporates additional requirements for “significant” guidance. Specifically, the rule establishes a formal process for the public to petition to modify, withdraw, or reinstate a guidance document. EPA must respond to a petition no later than 90 calendar days after receipt of the petition. The public may also participate, in the form of a 30-day comment period, in developing “significant” guidance documents, except in cases of emergency, a statutory requirement, or a court order requiring immediate issuance or for “good cause.” Starting on November 18, all “active” guidance documents must appear on the Guidance Portal that EPA opened this past July. The rule provides that a guidance is “active” or “in effect” when EPA “expects to cite, use, or rely upon” the guidance.

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