Agencies Rescind Their Regulations on Promoting the Rule of Law Through Improved Agency Guidance Documents

By Astrika Adams, Assistant Chief Counsel

On October 15, 2019, E.O. 13891 was issued, requiring Federal Agencies to promulgate or update existing regulations setting forth their procedures for issuing guidance documents. In response to E.O. 13891, the Council on Environmental Quality (CEQ) promulgated regulations on Promoting the Rule of Law Through Improved Agency Guidance Documents (the Guidance Document Rule).

CEQ’s 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. Other Federal Agencies promulgated comparable Guidance Document Rules.

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. On April 13, 2021, in response to E.O. 13992, the CEQ announced the rescission of its Guidance Document Rule with immediate effect. CEQ had concluded that the Guidance Document Rule had to be rescinded because it deprived CEQ of necessary flexibility in determining when and how best to issue guidance.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. Although several Federal Agencies have rescinded their Guidance Document Rules like the CEQ, including the Department of the Interior and the Environmental Protection Agency, other Federal Agencies have not yet rescinded their Guidance Document Rules.

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