Guidance documents have always been important and useful tools for the regulated community to: glimpse how an agency might use its discretion, determine how an agency might apply a regulation, and simply understand complex statutes and regulations. That being said, historically, finding the right agency guidance (especially older guidance) could be a challenging process. Even more, old and new guidance had the potential to be inconsistent. As of February 28, 2020, guidance has become a lot more simple to find, search, and challenge.
On February 28, 2020, the Environmental Protection Agency (EPA), among other agencies, rolled out its guidance website pursuant to Executive Order 13891, which includes decades worth of official guidance for each of the EPA Headquarters Offices and the EPA Regional Offices. Additionally, the website provides (1) a point of contact for general comments and (2) a page for the public to petition the EPA to withdraw or modify a guidance document. The genesis of these improvements was Executive Order 13891.
On October 9, 2019, the Trump administration issued Executive Order 13891 – “Promoting the Rule of Law Through Improved Agency Guidance Documents.” This Executive Order represented a sea change in how the government organizes, issues, and evaluates guidance. The Order, in part:
- Required agencies to create searchable websites with an indexed database linking all guidance documents in effect.
- Required agencies to review guidance documents and rescind those guidance documents that they determine should no longer be in effect.
- Required agencies to create and implement procedures and processes for the withdrawal or modification of particular guidance “including the designation of the officials to which petitions should be directed.”
On October 31, 2019, the Office of Management and Budget (OMB) issued implementing guidance that set deadlines for establishing a searchable, indexed online database for all active guidance documents, and provided agencies with instructions for complying with the requirements of Executive Order 13891.
The recently created guidance websites are a welcome resource. However, it remains to be seen exactly how comprehensive these guidance databases are currently and will be going forward. In any event, it is now more convenient than ever for the regulated community to challenge historical guidance.
For the guidance page of the Environmental Protection Agency, visit: https://www.epa.gov/guidance
For the guidance page of the U.S. Department of the Interior, visit: https://www.doi.gov/elips/browse