The deadline for commenting on the proposed U.S. Environmental Protection Agency (EPA) regulation, 40 C.F.R. Part 2, new Subpart D, is June 22, 2020, and to date very few comments have been logged in Docket ID No. EPA-HQ-OA-2020-0128. The proposed rule was published in the Federal Register on May 22, 2020, at 85 Fed. Reg. 31104. According to the notice, this action solicits comment from the public on a proposed regulation establishing procedures that the EPA intends to use to issue guidance documents that are subject to the requirements of Executive Order (E.O.) 13891, "Promoting the Rule of Law Through Improved Agency Guidance Documents" (Oct. 15, 2019), which directs federal agencies to develop regulations to set forth processes and procedures for issuing guidance documents.

The proposed regulation defines the process by which the EPA will issue guidance documents, including newly defined "significant guidance documents" that will be subject to a notice and comment procedure. In addition, it establishes a single online repository for all guidance in effect, which must be updated by the EPA by June 27, 2020, according to the Oct. 31, 2019, Memorandum implementing E.O. 13891. Thereafter, any guidance document not posted to the portal is deemed rescinded and may not be relied upon. Further, any new or reinstated guidance must be reevaluated using the new procedure thereafter. Therefore, a check of the searchable guidance portal will confirm which guidance documents remain effective.

According to the notice, the administrator has sole and unreviewable discretion to deviate from this procedure. However, the new rule also creates a procedure by which modification or withdrawal of active guidance can be sought by regulated entities, stakeholders or the public. According to the proposal, the EPA intends to respond within 90 days of receipt of a petition to modify or withdraw a guidance document. That response may indicate that the EPA needs additional time to develop a plan and/or outline its plan, including the process to follow the required procedure for modification if the EPA agrees with the petitioner. It remains to be seen how this new procedure will play out, and there are benefits for having a single searchable database to look for applicable guidance documents.