On October 26, 2020, the U.S. Department of the Interior (“DOI” or “The Department”) issued an interim final rule, which revises its guidelines for the development, review, and clearance of guidance documents. The Department’s rule follows the U.S. Environmental Protection Agency’s promulgation of a similar rule last month. Both rules implement the October 2019 Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents directing Federal agencies to finalize regulations that set forth procedures for issuing guidance documents.
The new DOI rule establishes requirements for all guidance documents—any statement of the agency that is of general applicability and intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation, with certain exceptions. Now, all guidance documents must be written in plain language, go through an economic impact analysis, clearly state that the guidance is not legally binding, receive legal review, and, when appropriate, Office of the Secretary review. Additionally, before DOI issues a “significant guidance document,” as defined in the rule, it must allow for informal public notice-and-comment.