CEQ Rescinds Its Promoting the Rule of Law Through Improved Agency Guidance Documents Regulation

By Astrika Adams, Assistant Chief Counsel

On April 13, 2021, the Council on Environmental Quality (CEQ) announced the rescission of its Promoting the Rule of Law Through Improved Agency Guidance Documents regulation (the Guidance Document Rule) with immediate effect.

The Guidance Document Rule was promulgated on January 8, 2021, in response to Executive Order (E.O.) 13891, which required Federal Agencies to promulgate or update existing regulations setting forth their procedures for issuing guidance documents. The Guidance Document Rule significantly modified CEQ’s procedural requirements for issuing guidance documents. First, the Guidance Document Rule defined what a guidance document is. Second, the Guidance Document Rule attempted to expand public notice and participation in the issuance of any guidance document by requiring all guidance documents to be made publicly available through posting on CEQ’s website as well as establishing a publicly available indexed, searchable database of all guidance documents. In addition, all guidance documents were required to have at least a 30-day notice and comment period. If any of these requirements were not met, CEQ was prohibited from utilizing such guidance document.

On January 20, 2021 E.O. 13992 was issued, revoking E.O. 13891 and directing all Federal Agencies to take steps to rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing E.O. 13891. In response, CEQ concluded that the Guidance Document Rule had to be rescinded because it deprived CEQ of necessary flexibility in determining when and how best to issue guidance. CEQ confirmed it would still make guidance documents publicly available on two CEQ-affiliated websites.

For answers to questions about this rescission contact Assistant Chief Counsel Astrika Adams at astrika.adams@sba.gov or 202-205-6948.

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