Joshua Ulan Galperin[2]**
E. Donald Elliott[3]***
ABSTRACT
Effective notice of law is the cornerstone of any legal system, and yet many federal administrative agencies do not give small businesses, NGOs, and interested citizens notice of the vast amount of new or modified law they produce. They merely publish the text in the Federal Register, which works tolerably well for larger enterprises but not their smaller competitors and citizens’ groups. Despite these facts, few scholars have explored how agencies provide notice of the law. Even fewer have proposed ways that agencies could improve the methods they use for giving more effective notice of significant regulatory changes and thereby increase compliance and fairness. This Article therefore examines notice-giving among federal agencies. Based on dozens of stakeholder interviews, this Article uncovers inconsistencies and shortcomings in the approaches some agencies use to make available information regarding significant regulatory changes. Even more importantly, we highlight successful approaches that some agencies use to get the word out to all constituencies. We argue that adapting these best practices to other agencies and their audiences can improve the efficacy and fairness of U.S. administrative law overall.
To most, the study of administrative notice begins and ends with the Federal Register. However, in many circumstances, mere publication in the Federal Register is inadequate, particularly for marginalized communities and small entities. But even larger entities struggle to “connect the dots” between the materials agencies publish, for example, in the Federal Register, only on agency websites, as adjudicative orders, or as guidance. These shortcomings raise concerns about the fairness and efficacy of administrative processes, but providing effective notice of significant regulatory changes is not merely a policy concern. Constitutional principles, particularly the requirements of due process, as well as a variety of federal statutes, require that agencies give sufficient notice of certain regulatory changes.
To improve administrative governance and meet both constitutional and statutory commands, this Article proposes a comprehensive strategy to improve the way agencies give notice of significant regulatory changes. Our overarching proposal is that agencies should develop proactive notice plans that, among other things, identify target audiences, evaluate costs, and establish policies for gathering and periodically reevaluating data about the effectiveness of agency notice practices. Additional recommendations include improving the usability of the Federal Register, leveraging technological advancements for automated notifications, and developing accessible digests and user manuals.
The needs of each agency vary, but by adopting an appropriate combination of these measures, agencies can avoid legal risk, improve communication, foster compliance, invite meaningful participation, and reinforce the legitimacy of the regulatory system. Ultimately, this Article asserts that effective notice of significant regulatory change is not only a legal obligation but a fundamental democratic practice that supports informed citizenry and good governance.
Keywords
regulatory notice — administrative law — federal agencies — due process — regulatory compliance
RESUMO
A adequada publicidade das normas constitui pilar essencial de qualquer sistema jurídico. Ainda assim, muitas agências administrativas federais não asseguram que pequenas empresas, organizações da sociedade civil e cidadãos interessados tenham conhecimento do vasto conjunto de normas novas ou modificadas que produzem. Em regra, limitam-se à publicação dos atos no Federal Register, mecanismo que atende de forma apenas razoável às grandes organizações, mas se mostra insuficiente para seus concorrentes de menor porte e para entidades da sociedade civil.
Apesar desse cenário, são escassos os estudos dedicados a examinar como as agências promovem a publicidade normativa. Mais raras ainda são as propostas voltadas ao aperfeiçoamento dos métodos utilizados, com vistas a conferir maior efetividade à divulgação de mudanças regulatórias relevantes, promovendo, assim, maior conformidade e equidade. Nesse contexto, o presente artigo analisa as práticas de divulgação normativa adotadas por agências federais. Com base em dezenas de entrevistas com atores interessados, identificam-se inconsistências e deficiências nas estratégias empregadas por algumas agências para tornar acessíveis informações sobre alterações regulatórias significativas. De modo ainda mais relevante, destacam-se práticas exitosas adotadas por determinadas agências para difundir tais informações de maneira abrangente. Sustenta-se que a adaptação dessas boas práticas a outras agências e aos seus respectivos públicos pode aprimorar a efetividade e a equidade do direito administrativo norte-americano.
Para muitos, o estudo da publicidade administrativa se limita ao Federal Register. Contudo, em diversas situações, a simples publicação nesse veículo é insuficiente, especialmente para comunidades marginalizadas e pequenos agentes econômicos. Mesmo organizações de maior porte enfrentam dificuldades para articular e compreender o conjunto de informações disponibilizadas pelas agências, seja no Federal Register, em sítios eletrônicos institucionais, em decisões administrativas ou em atos interpretativos (guidance). Tais limitações suscitam preocupações quanto à equidade e à eficácia dos processos administrativos. Importa destacar que a adequada publicidade de alterações regulatórias relevantes não constitui apenas uma questão de política pública: princípios constitucionais, notadamente as garantias do devido processo legal, bem como diversos diplomas legislativos federais, impõem às agências o dever de assegurar notificação suficiente acerca de determinadas mudanças normativas.
Com o objetivo de aprimorar a governança administrativa e atender às exigências constitucionais e legais, o artigo propõe uma estratégia abrangente para qualificar os mecanismos de divulgação de alterações regulatórias relevantes. A proposta central consiste na elaboração, pelas agências, de planos proativos de comunicação normativa que incluam, entre outros aspectos, a identificação dos públicos-alvo, a avaliação de custos e a definição de políticas para coleta e reavaliação periódica de dados sobre a efetividade das práticas adotadas. Recomenda-se, ainda, o aprimoramento da usabilidade do Federal Register, o aproveitamento de soluções tecnológicas para notificações automatizadas e o desenvolvimento de resumos acessíveis e guias orientativos.
Reconhece-se que as necessidades variam entre as agências. Todavia, a adoção de uma combinação adequada dessas medidas permite mitigar riscos jurídicos, aprimorar a comunicação institucional, estimular a conformidade regulatória, ampliar a participação qualificada e fortalecer a legitimidade do sistema regulatório. Em última análise, sustenta-se que a adequada publicidade de alterações regulatórias relevantes não é apenas uma obrigação jurídica, mas também uma prática democrática fundamental, indispensável à formação de uma cidadania informada e à boa governança.
Palavras-chave
notificação regulatória — direito administrativo — agências federais — devido processo legal — conformidade regulatória
The governed are entitled to fair notice of the rules they must obey.[4] That is a core value of our legal system.[5] Many rules emerge when administrative agencies implement statutes.[6] While fierce debate rages about the size, scope, and even democratic legitimacy of the administrative state,[7] there is less attention to the day-to-day mechanics of administration, such as the tools agencies use to provide notice of significant regulatory changes.[8]
The Supreme Court’s recent decision in Corner Post, however, furnishes new reason to pay attention.[9] The Court held that the statute of limitations for facial challenges to agency action begins at the time a party is injured, not at the time the agency action becomes final.[10] A more flexible statute of limitations can unsettle old law with new litigation. But one possibility for mitigating disruption is for agencies to provide effective notice of regulatory changes, alerting interested parties to potential legal injury as early as possible.
Given the fundamental principle that people must have notice of the law, the potential of effective notice to reduce post-Corner Post litigation, and the fact that notice is essential for democratic participation, this Article investigates how federal agencies alert people and organizations to significant regulatory changes. It suggests best practices from among the strategies agencies currently employ. Finally, it urges agencies to proactively and comprehensively plan for effective notice-giving.
The next Part of this Article explains why, as a legal and policy, matter, notice of regulatory change is important. Although policy makers have not given much attention to notice in recent decades,[11] strong policy and legal considerations counsel that agencies should provide careful notice. Effective notice promotes voluntary compliance, reducing the need for coercive enforcement, and effective notice enables agencies to operate more efficiently. Effective notice helps engender a sense of fairness and transparency that contributes to agency legitimacy. Effective notice can also promote greater community participation. Research shows that when agencies communicate with a community, seek input, and appreciate its perspectives, they generate more understanding and acceptance.[12]
Nevertheless, no single, comprehensive legal code specifies how agencies should provide notice of significant regulatory changes. Constitutional due process requirements as well as the Federal Register Act,[13] the Freedom of Information Act,[14] and the APA[15] all require agencies to make certain actions “available” in various circumstances. Some program-specific requirements also exist. However, agencies do not always comply, and when they do, compliance does not always result in effective notice to potentially interested persons and entities.[16] For these reasons, it is important to give more thought to exactly how agencies provide notice.
After Part III details the vocabulary of this Article, Part IV summarizes the current state of notice practice based on interviews with sixty current and former agency staff, business owners, trade associations, labor unions, scholars, public-interest NGOs, private practice lawyers, state government officials, members of non-commercial regulated entities, and others.[17]
The people with whom we spoke generally agreed that tools for providing notice, such as the Federal Register or agency websites, are effective to some extent. However, interviewees also agreed that the methods most agencies use to provide public notice are imperfect and do not cover a sufficiently wide range of agency actions. Moreover, and perhaps more importantly, the level of satisfaction with prevailing methods varies significantly by the size, sophistication, and “connectedness” of the persons or entities that might have an interest in receiving notice.
Part V explores the many strategies agencies use for providing notice. Some agencies have invested heavily in “getting the word out,” providing a foundation for future improvements. There is, however, surprisingly little research on which tools and strategies provide the most effective notice.[18] For this reason, and recognizing that the audiences and missions of agencies vary greatly so that no “one-size-fits-all” approach will work, we evaluate existing strategies and, based on our interviews, offer suggestions for improving on existing best practices.
As an overarching procedural matter, we propose agencies establish comprehensive notice plans. Our research did not identify any agencies that have comprehensive and publicly available policies for providing notice nor have we found systematic practices for evaluating the efficacy of various agency notice-giving strategies. Yet, many agency officials to whom we spoke agreed that comprehensive plans for giving notice and evaluating which strategies are effective could help.[19] Therefore, we urge agencies to, at a minimum, periodically reevaluate the effectiveness of their notice-giving techniques, as well as techniques other agencies use; understand which are most effective; and pay particular attention to which are most effective for reaching smaller and other underserved entities and individuals.
We conclude, in Part VI, by noting that there are many opportunities to improve the administrative process and democratic practice by improving the techniques agencies use to give effective notice to potentially interested persons and entities.
Providing notice is good policy and, in many circumstances, a legal requirement. This Part describes the policy reasons agencies should examine their notice practices and also highlights several important legal considerations.
Effective notice facilitates compliance. Only when regulated entities are aware of agency rules can those entities make intentional efforts to comply.[20] It seems probable then that agencies with better notice practices are able to generate more voluntary compliance and better accomplish their mission, but there is little systematic research to back up these surmises.[21]
There is, however, anecdotal evidence. The Internal Revenue Service (IRS) is an example of how notice practices can facilitate voluntary compliance. Among our interviewees, several pointed to the IRS as a model of excellent notice practices.[22] For example, both a former government lawyer with deep knowledge of the IRS and a representative of a large trade association singled out the IRS for providing effective notice of significant regulatory changes.[23] The trade association representative described taxes as the single biggest regulatory burden for most small businesses and—although not discounting the burden—he volunteered that the IRS has dedicated significant thought to providing notice of regulatory changes in order to promote voluntary compliance.[24]
As we discuss more in Part V, the IRS’s techniques are diverse, well-staffed, and integrated into the Service’s mission. It is understandable that the IRS has given much thought to how it provides notice of significant regulatory changes. First, changes to the tax code are common.[25] Second, the IRS regulates over 250 million taxpayers.[26] In order to carry out its statutory responsibilities, the IRS needs each of those 250 million taxpayers to be aware of changing requirements and able to comply. For this reason, the IRS describes its mission, in part, as “[p]rovid[ing] America’s taxpayers top quality service by helping them understand and meet their tax responsibilities.”[27] With a staff dedicated specifically to outreach and notice, and regular, formalized, notice practices, the IRS’s attention to notice of regulatory changes has paid off. It may “be one of the world’s most efficient tax administrators,”[28] and certainly several our interview subjects praised the IRS’s methods,[29] which we discuss further in Part V.
Debates over the role of agency guidance further emphasize the point that effective notice can advance an agency’s mission by facilitating voluntary compliance. Guidance documents, particularly policy statements, are essentially a form of advance advice about how an agency plans to act, as well as directions to agency staff about agency policy.[30] Agencies release guidance documents in part to coordinate actions internally, but also sometimes to alert the public to how the agency intends to carry out its responsibilities.[31] Agencies use guidance documents in different ways, but guidance documents are typically not legally binding. They may, however, serve as a form of notice of agency practices, thereby creating common expectations and allowing the public to adapt.[32] For example, the National Highway Traffic Safety Administration Authorization Act of 1991 provides a process for car manufacturers to begin voluntary recalls when a manufacturer produces a car with a defect or otherwise not in compliance with various standards.[33] If a defect were tied to specific climactic factors, such as extreme heat or rain, the manufacturers would only issue recalls in the relevant geographic areas.[34] The NHTSA eventually released guidance circumscribing regional recalls.[35] Despite the avowedly non-binding nature of the NHTSA guidance, the agency expected that automakers would voluntarily comply “in order to avoid any risk of the agency initiating” an enforcement proceeding.[36] This example illustrates that when an agency provides effective notice, more voluntary compliance is likely for some parties.
Regulatory compliance, however, is not the only reason for agencies to provide effective notice of significant regulatory changes. Effective notice can improve the perceived fairness of agency actions, the preparedness among regulated parties, transparency for all interested entities, and can increase the overall sense of legitimacy and consistency.
Although he was writing specifically about the notice and comment process, Professor Parrillo describes three ways that effective notice can lead to greater legitimacy.[37] First, effective notice alerts interested persons and entities that agencies are attentive to their needs.[38] Second, effective notice can rebuff charges that an agency is biased by demonstrating that an agency is seeking to alert all interested persons and entities of regulatory changes and is not providing notice only to an inner circle or only to those entities with the resources to hire consultants, lawyers, or join trade associations.[39] Third, effective notice will increase the number and diversity of potentially interested persons and entities engaged in agency processes.[40] Even if these considerations apply with stronger force to predecisional processes in which an agency is developing policy rather than providing notice of changes to existing policy, they can nevertheless inform notice practice because each contributes to the public trust and democratic engagement in the administrative process.
Similarly, effective notice may help maintain consistency and predictability for agencies. The Supreme Court’s decision in Corner Post, has the potential to create uncertainty around the “stickiness” of federal regulations because it allows facial challenges to agency actions long after they become final.[41] It is too soon to know the extent of Corner Post’s effects, but agencies are undoubtedly aware that some of what was once settled law is now open to relitigation.[42] Agencies may limit the impact of a more flexible statute of limitations by providing more effective notice of regulatory changes. If agencies can alert more potentially interested parties early on, there will be fewer claims of unknown legal injuries years after a regulation becomes final.
“A fundamental principle in our legal system,” according to Supreme Court precedent, “is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”[43] By its terms, the Due Process Clause of the Fifth Amendment requires due process of law, including notice, before anyone is “deprived of life, liberty or property.”[44] Most agency enforcement proceedings may result in deprivations of liberty or property, and accordingly, the D.C. Circuit has held that agency requirements cannot be enforced in the absence of “fair notice.”[45] Thus, “[d]ue process requires that parties receive fair notice before being deprived of property.”[46] In the administrative law context, this principle emerges in the “fair notice” or “fair warning” doctrine. These doctrines prohibit agencies from enforcing any legally binding action against a party who did not have notice.[47] Publication in the Federal Register establishes a statutory presumption of notice of a regulatory change,[48] but many significant regulatory changes can occur through policy statements, interpretative rules, and other agency actions that agencies do not necessarily publish in the Federal Register.[49] For these sources of policy change, if an agency seeks to enforce the policy, due process requires agencies to give notice in some form because a party “cannot be found out of compliance [if the agency] failed to give fair notice of what is required.”[50] In some cases, due process may require more than publication in the Federal Register.
Although the Supreme Court has never addressed the issue in the context of administrative agencies, the Court has indicated the importance of notice of significant regulatory changes. “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”[51] Notice, the Court has said, is not limited only to prohibited conduct. Regulated parties should also have notice “of the severity of the penalty.”[52]
In Mullane v. Central Hanover Bank & Trust, the Supreme Court held, 7–1, that publication in a general circulation newspaper, although permitted by statute, was not sufficient to comply with the due process requirements for notifying potentially interested parties about a legal proceeding that might affect their rights because more effective alternatives such as notice by mail were practical under the circumstances:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied.[53]
Mullane did not involve regulatory notice, but at least one federal court has applied Mullane to federal regulation.[54] In Higashi v. U.S., the Federal Circuit ruled that Mullane applied to recission of an executive order.[55] The court found that, on the facts, the government had given effective notice “reasonably calculated, under all the circumstances” because the government published the recission in the Federal Register and there was significant, nationwide news coverage.[56] Higashi, however, was looking back at circumstances for effective notice in 1944.[57] Today, the best notice practical under the circumstances may have changed with low-cost, new technologies such as email, websites and social media.[58] Technological changes are not the only circumstances that may affect due process requirements. For example, a law journal note argues that if an agency knows that interested parties are not English-speaking but provides notices only in English, due process may require translation into another language.[59] The principle that due process requires the best notice practical under the circumstances means that agencies run a serious risk that courts may hold procedures for providing notice unconstitutional under Mullane if the procedures are not updated to take advantage of new contexts.
Lower courts have addressed the overlap of due process and regulatory notice more directly. In General Electric v. EPA, the D.C. Circuit noted that pre-enforcement communication with a regulated entity will, like publication in the Federal Register, provide sufficient notice to satisfy Due Process Clause notice requirements.[60] The D.C. Circuit further held that notice is constitutionally sufficient when a “regulated party acting in good faith would be able to identify, with ascertainable certainty, the standards with which the agency expects the parties to conform.”[61] The majority of the courts of appeals have adopted this test.[62] However, even among courts explicitly adopting General Electric, there are differences in how they apply the “ascertainable certainty” test.[63] Thus, to date, most lower courts hold that publication in the Federal Register or actual notice is sufficient to comply with due process.[64] However, Supreme Court decisions applying the Due Process Clause outside of the administrative context place a high value on taking reasonably practical measures to provide effective notice.[65] Therefore, in our judgment, agencies are running a significant risk if they do not provide the most effective notice practical under the circumstances.[66] In some circumstances, publication in the Federal Register may not be the most effective notice practical under the circumstances.
Actual notice is not realistic in many situations where agencies engage with a huge number of entities. The Federal Register Act provides an alternative by creating the Federal Register and declaring publication therein constructive notice.[67] Because legislative rules can have no binding effect if an agency does not either publish in the Federal Register or give an entity actual notice,[68] there is widespread understanding that agencies must publish legislative rules in the Federal Register.[69] There is also widespread compliance with this requirement.[70] The same is not true for regulatory changes that emerge from other agency actions.[71]
The Federal Register Act permits agencies to publish guidance documents in the Federal Register,[72] and the Freedom of Information Act (FOIA) requires publication of many guidance documents.[73] There is some uncertainty about publication requirements for guidance documents, however.[74] As an initial matter, FOIA clearly states that agencies must publish certain guidance in the Federal Register.[75] Specifically, the statute reads: “Each agency shall separately state and currently publish in the Federal Register for the guidance of the public . . . statements of general policy or interpretations of general applicability formulated and adopted by the agency; and . . . each amendment, revision, or repeal of the foregoing.”[76] The reference to statements of general policy and interpretations of general applicability reference agency actions typically described as “guidance.”[77]
The FOIA publication requirement covers much, but not all guidance.[78] Lower courts have held that guidance only triggers the publication requirement if it has both “general applicability” and a “significant impact” on regulated parties.[79] Thus, according to the Ninth Circuit, if a rule is merely a clarification of existing duties or “instructive,” publication may not be necessary.[80] In this way, the threshold for publication seems to turn on questions around binding impact, which are very similar to those that dictate whether a document is a legislative rule or guidance document for APA purposes. For instance, one court has held that FOIA only requires Federal Register publication if the document is “conclusive in the agency’s decision” but not if the document informs parties about binding rules that come from other sources.[81] Under this line of thinking, documents incorporating published material, such as user manuals that synthesize statutory and published legislative rules, are also likely exempt.[82] Regardless of the exact line that separates documents that agencies must publish in the Federal Register and documents they need not publish, it is clear that FOIA establishes an expectation that agencies give notice via publication in the Federal Register.[83] Moreover, there is limited case law on the subject, all of which is from lower courts.[84] If the Supreme Court has reason to address the question, the Court may read the expansive language as mandating more publication of guidance.
In addition to the Federal Register publication requirement, FOIA also provides a “built-in” incentive for compliance. The Act states: “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be require to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.”[85] Thus, if there is not timely and actual notice, an agency cannot use a document against a party unless the document is published in the Federal Register.[86] As Professor Coglianese notes, this creates some incentive for agencies to publish in the Federal Register in order to use documents as precedential authority for enforcement action.[87] But because agencies do not always rely on guidance for precedential authority, the “self-enforcing legal structure” built into the law “fits less well in the context of documents that are avowedly non-binding.”[88]
The 1996 FOIA amendments utilize a similar structure:
A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—(i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof.[89]
This language covers a wide range of documents that might make significant regulatory changes, and while it does not require publication on websites, it provides that when an agency does publish on its website, a document can carry precedential weight. In short, this provision might add precedential weight to a document if the agency chooses to publish on a website.[90]
The Freedom of Information Act also includes an online “reading room” requirement that mandates agencies make certain information available online.[91] In addition to requiring publication in the Federal Register, the Freedom of Information Act states that agencies “shall make available for public inspection in an electronic format” various regulatory documents, including “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register.”[92]
The Federal Register publication requirement applies to any document of “general applicability.”[93] The website publication requirement applies to those documents “which have been adopted by the agency and are not published in the Federal Register.”[94] It is unclear whether the second provision is meant to cover documents that agencies need not publish in the Federal Register of whether it is an alternative option for documents that agencies choose not to publish in the Federal Register.[95] Regardless, FOIA clearly requires that agencies publish most regulatory material in the Federal Register and on agency websites. However, this apparently broad requirement is more honored in the breach than in the observance.
In the words of Kenneth Culp Davis, “[m]any, many federal agencies have failed to comply with [FOIA’s publication requirements]. Yet the requirements are clear.”[96] Professor Weaver agrees that, at least with respect to guidance, compliance with and enforcement of FOIA publication requirements are irregular.[97] Guidance documents are understood to announce agency policy without creating binding legal standards.[98] In other words, when an agency seeks to enforce policy, the agency must base its enforcement action on a statute, legislative rule, adjudicatory opinion, or other sources of binding law. An agency may not rely solely on a guidance document. Where FOIA requires agencies to publish material in the Federal Register, the consequence for failing to publish is that the agency may not use the unpublished material against a party.[99] Because agencies cannot use guidance documents against a party regardless of publication status, the lack of practical consequences limits the impact of the FOIA publication requirement. This may explain why compliance is lacking. Regardless of compliance, there is a standard that agencies publish guidance in the Federal Register and on agency websites.[100]
Other statutes provide transsubstantive notice requirements, although these requirements tend to be more narrowly focused or flexible. Section 207(f)(2) of the E-Government Act of 2002 requires agencies to “establish a process for determining which [g]overnment information the agency intends to make available and accessible to the public on the [i]nternet,” “develop priorities and schedules,” make “final determinations, priorities, and schedules available for public comment,” post such information on the internet, and update it as needed.[101] Similarly, the Federal Records Act of 1950 directs agencies to make a record of agency documents to facilitate document production to “persons directly affected by the agency’s activities.”[102] The Act further requires agencies to have procedures for public disclosure and electronic posting.[103]
The Regulatory Flexibility Act (RFA) requires that agencies release a preliminary regulatory flexibility analysis when the agency “is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule.”[104] An agency must issue a final regulatory flexibility analysis when it issues a final rule under the APA’s notice-and-comment process.[105] However, analyses are not required if “the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”[106]
The Small Business Regulatory Enforcement Fairness Act (SBREFA)[107] amended the RFA and requires agencies to create “small entity compliance guides.”[108] One stated purpose of the SBREFA was “to develop more accessible sources of information on regulatory and reporting requirements for small businesses.”[109] SBREFA requires that, for every rule that requires a final regulatory flexibility analysis, agencies must also publish “small entity compliance guides” that “explain the actions a small entity is required to take to comply with a rule or group of rules” in “sufficiently plain language.”[110] SBREFA notes that “[a]gencies may prepare separate guides covering groups or classes of similarly affected small entities, and may cooperate with associations of small entities to develop and distribute such guides.”[111] Additionally, SBREFA requires agencies to “cooperate to make available to small entities through comprehensive sources of information, the small entity compliance guides and all other available information on statutory and regulatory requirements affecting small entities.”[112]
In addition to these trans substantive statutory requirements, there are program-specific statutory requirements as well. For example, the Internal Revenue Code (Code) includes notice requirements for individual taxpayers regarding interest and penalties.[113] However, the Code’s “[r]ules and regulations” provision provides that “the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.”[114] The statute, therefore, does not actually mandate enhanced notice procedures for significant regulatory changes.
However, the IRS regulation on “Rules and regulations” more explicitly outlines notice requirements.[115] While regulations and Treasury decisions (another source of IRS rule) must be “published in the Federal Register,”[116] the regulations require Treasury decisions to be posted in the Internal Revenue Bulletin as well.[117] The Bulletin aims to “promote correct and uniform application of the tax laws by Internal Revenue Service employees and to assist taxpayers in attaining maximum voluntary compliance by informing Service personnel and the public of National Office interpretations of the internal revenue laws, related statutes, treaties, regulations, and statements of Service procedures affecting the rights and duties of taxpayers.”[118]
The IRS regulation also requires that the IRS publish Revenue Rulings and Revenue Procedures in the Internal Revenue Bulletin.[119]
Although this is just a short survey of statutory requirements, Congress has shown, again and again, its interest in how agencies give notice of regulatory changes.
As we discuss in Part IV, one central finding of our research is that small, less-resourced entities have the most difficulty getting effective notice. Our interviews show that the groups struggling to get effective notice include non-English speaking, immigrant, and environmental justice communities.[120] Executive Order 12,898, from 1994, establishes a variety of directives related to environmental justice.[121] Among these directives is a general call to improve the way agencies give notice to marginalized communities.[122] Section 5-5 states that “Federal agencies may, whenever practicable and appropriate, translate crucial public documents, notices, and hearings relating to human health or the environment for limited English speaking populations.”[123] This is not a mandate, but it is a reminder that effective notice may require agencies to translate certain documents from English.
The Executive Order continues, “Each [f]ederal agency shall work to ensure that public documents, notices, and hearings relating to human health or the environment are . . . readily accessible to the public.”[124] This mandatory language imposes a requirement on agencies to make important public information accessible. While the Executive Order requires only that agencies “work to ensure” such accessibility, it nevertheless directs agencies to prioritize effective notice to marginalized persons and entities.[125]
Taken together, from the constitutional baseline of due process through the various transsubstantive statutory notice requirements, different legal rules govern the way agencies give notice of significant regulatory changes. The uncertainty around the exact meaning of these provisions is yet another reason for agencies to evaluate and, when necessary, improve their practices for giving notice. Doing so may help agencies avoid legal consequences. Even aside from the specific requirements of these transsubstantive statutes, the repeated legislation in this area demonstrates congressional interest in how agencies give notice and suggests possible congressional dissatisfaction. This alone is an important reason for agencies to improve their notice practices.
Guidance documents advise the public about how agencies interpret their legal authority and how they plan to use their discretionary power.[126] Thus, making guidance publicly available is important to providing notice of significant regulatory changes. Yet, agencies do not consistently share guidance documents. Congress and presidents have tried to address this problem. This Section provides a summary of recent laws and policies related to how agencies make guidance documents publicly available.
The FDA is subject to statutory requirements for issuing certain guidance[127] and has promulgated a legislative rule meant to control how it issues and shares guidance.[128] During the Carter Administration, the EPA promulgated a rule requiring the Office of Air, Noise, and Radiation to develop a system for disseminating guidance documents.[129] The Office of Management and Budget issued a Bulletin for Good Guidance Practices in 2007.[130] The Bulletin requires that agencies make significant guidance documents available on agency websites.[131]
In 2019, President Trump issued two executive orders related to guidance. The first Executive Order mandated, in line with the 2007 OMB Bulletin, that each agency “shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents.”[132] That Executive Order further required that agencies review guidance documents, “rescind those guidance documents that it determines should no longer be in effect,” and promulgate rules governing issuance of new guidance.[133] The second Executive Order, issued the same day, focused specifically on the role of guidance in enforcement actions. It prohibited agencies from citing guidance documents unless they had notified the public in advance through publication, either in full or by citation, in the Federal Register or on a searchable, indexed section of the agency’s website.[134] President Biden revoked President Trump’s two executive orders, stating that agencies should be “equipped with flexibility to use robust regulatory action to address national priorities,” implying that added procedures to make guidance available unnecessarily limited agency action.[135] In the wake of this revocation, some agencies were quick to repeal recent rules that implemented stricter guidance procedures.[136] Similarly, the Carter-era EPA rule, while plainly requiring publication of certain guidance,[137] appears not to have been implemented. A question that has influenced executive action on the availability of guidance is how to balance making significant guidance more accessible against the burdens for agencies. It is also important to understand any other reasons that agencies may be hesitant to make guidance available.[138] This will involve accommodating availability, flexibility, and usability alongside legal requirements for publishing guidance.[139]
Considering these legal and policy considerations, we sought to better understand the needs of regulated individuals and entities, regulatory beneficiaries, and agency staff. To that end, we spoke with roughly sixty individuals representing all aspects of the regulatory universe.[140] To communicate with interview subjects and articulate our findings, we were careful to define key research concepts. This Part explains the core vocabulary of our work.
Many agency actions may affect the rights and duties of private entities. Not every action requires public notice. A regulatory change is significant where the consequences are substantial enough that agencies would reasonably anticipate entities to have a substantial interest in learning about the change.[141] For instance, on January 29, 2021, the Acting Assistant Secretary of Labor for Occupational Safety and Health, James Frederick, gave a speech discussing COVID-19 and the Biden Administration’s priorities.[142] While the speech provides useful context and is publicly available, it does not announce any regulatory changes and therefore is not a significant regulatory change.
The position or title of the official issuing a document is also important to determining whether an agency action is a significant regulatory change.
A letter from OSHA to a lab safety officer illustrates this point. In this letter, Patricia Clark, then-Director of Compliance Programs, wrote that wearing gloves while handling unopened specimen containers was “appropriate . . . although not necessarily required.”[143] This was not formally a regulatory action, and it does not purport to bind regulated parties, but it does give a strong indication of what precautions the agency considers “appropriate.” By contrast, if OSHA had written that gloving is “necessary,” the letter might be read as a binding mandate.
Nonetheless, we consider significant regulatory changes to include such statements by high-level officials with policymaking or enforcement authority when the statements articulate an agency position that is likely to have practical consequences. It is not necessary the statement establish binding policy. Lab safety officers are likely to begin mandating technicians wear gloves in order to avoid the risk of noncompliance.
Existing policy considers certain types of regulatory changes “significant” or “major” if they are projected to have an aggregate annual effect on the economy of $100 million or more.[144] Regulatory changes in these categories are also significant for our purpose. However, in addition, regulatory changes can be significant for narrower groups. Mandating more widespread gloving in certain OSHA-regulated labs is unlikely to have a significant economic effect and may not even have a significant financial impact for regulated labs. It may nevertheless be practically significant for the regulated parties and the workers who benefit from the enhanced protection. The overarching consideration is whether the consequences of a regulatory change are substantial enough that regulated parties or other interested parties would reasonably be anticipated to have a substantial interest in learning about the change. This involves two factors. First, the potential consequences of the change. For example, would regulated parties be subject to enforcement or other sanctions if they failed to change their behavior in response to the regulatory change? Would they be protected in a regulatory safe harbor? Would regulatory beneficiaries have added or reduced protections? Second, does the change impact parties the agency did not previously regulate, making them less likely to monitor the agency’s policies and interpretations?
As an example of this second category, which we call “horizontal regulatory expansion,” in 2008 EPA promulgated detailed rules regulating repair and renovation of properties built before 1978 that may contain lead paint.[145] This brought within the ambit of EPA regulation thousands of small contractors and landlords that the EPA did not previously regulate and thus would not be expected to monitor EPA announcements in the Federal Register on a regular basis.
The Deferred Action for Parents of Childhood Arrivals (DAPA) and Deferred Action for Childhood Arrivals (DACA) programs provide another example of regulatory changes that have significant effects on interested people and entities even if not for the entire economy. The Department of Homeland Security (DHS) describes DACA as an announcement “that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action.”[146] Deferred action is a use “of prosecutorial discretion to defer removal action against an individual for a certain period.”[147] DAPA and DACA beneficiaries are those classes of immigrants who are now less likely to face prosecution and deportation. The State of Texas and property owners near the border are also interested persons or entities who claim injuries from relaxed immigration enforcement.[148] This example shows that policies can create benefits and burdens that are significant for segments of the population, if not the entire nation or entire industries.
A further example is illustrated in Community Nutrition Institute v. Young, where the D.C. Circuit dealt with Food and Drug Administration (FDA) guidance on “action levels” for potentially contaminated food.[149] The FDA established these action levels to determine whether to seize specific lots of food that might be contaminated.[150] The FDA did not intend to use the action-level thresholds to bind food manufacturers but, instead, to serve as a guide for internal decision-making.[151] Should the FDA seize food and begin an enforcement proceeding, the FDA recognized that it would have to establish contamination according to the Food, Drug, and Cosmetic Act and legislative rule standards, and that the “action levels” would not have any precedential value in the enforcement proceeding or Article III courts.[152] In this case, despite the nonbinding nature of the action levels, they could have a significant effect on regulated entities by causing them to change their manufacturing processes to avoid triggering the new action levels. If action level changes would cause some manufacturers to change their processes, they are also of interest to the public-at-large. Therefore, this change would fall within “significant regulatory changes.”
The Community Nutrition example also raises the issue of “who gets notice?” In that case, the regulated industry was certainly interested in FDA’s action levels, though the case stemmed from a challenge by a citizens’ group that was concerned the action levels were insufficiently protective.[153] While regulated parties are obviously interested in changes in rules that regulate their behavior, others may also be interested in receiving notice of regulatory changes. This includes individuals and organizations that benefit from regulation, such as environmental organizations, consumers, and non-commercial, recreational entities.
It does little good to evaluate notice strategies based simply on how many people they might alert. Rather, what is important is whether “potentially interested persons and entities” receive effective notice.
Not every person or entity will want notice of every government action.
Broad and frequent notice to all would be impossible and wasteful for both agencies and recipients. In addition, too much notice of changes that are not interesting to various entities can result in information overload, thereby becoming “spam.” We focus this inquiry on “potentially interested persons and entities” who either actually desire notice or would desire notice if they knew about the regulatory change in question. This includes entities subject to regulations and entities intended to benefit from regulation. It also includes noncommercial entities with recreational interests, such as hobbyists drone operators, motorcycle clubs, or hunters and anglers.
Notice is the process by which agencies make the public aware of changes in agency rules, policies, practices and interpretations. Well-known forms of notice include publication in the Federal Register, press releases, press conferences, or publication on an agency’s website. But notice can also involve more precise and individualized communication. In some cases, agencies will contact entities directly to alert them to certain agency actions, such as a potential enforcement proceeding if a regulated entity does not change its behavior. Thus, while the basic concept of “notice” is straightforward, we distinguish between different kinds of notice.
When we use the term “effective notice,” we mean that interested entities can access information of interest to them with only such difficulty and expense as is reasonable under the circumstances. Effective notice is about assuring that potentially interested persons and entities can access the information they want and need. In some cases, interested persons and entities are not aware that they need information because they are unaware of regulatory changes that may affect them. For this reason, effective notice sometimes requires agencies to attempt to notify potentially interested entities proactively, even if those entities make no independent attempts to seek out notice. For instance, a person or entity that may be affected may not review an agency website or the Federal Register if the entity has no reason to expect a regulatory change from that agency may affect them. In these cases, effective notice may require a different strategy. “Direct notice” means that the agency communicates information to an interested person or entity personally, rather than posting or publishing it. For example, if an agency sends an email or letter, or makes a phone call and tells someone about changes in agency requirements or policies, this is what we mean by “direct notice.”
“Actual notice” means that an interested person or entity has in fact received notice of agency action. An interested person or entity may have actual notice because that entity has direct notice based on a communication from an agency or because the interested person or entity has seen an agency publication on an agency website.
“Constructive notice” or “legal notice” refers to the legal fiction that an interested person or entity has notice even when that entity does not necessarily have actual notice. For instance, when an agency publishes notice in the Federal Register the law may treat every interested person or entity as having received notice even if that person or entity never reads the Federal Register entry.[154]
“Initial notice” means when an agency provides notice to persons or entities that have not previously signed up or otherwise indicated a desire to receive notice.
Based on our extensive conversations with current and former government officials, businesses, NGOs, regulatory beneficiaries, and many more, we learned that multiple opportunities exist to improve agency practices for providing notice of significant regulatory changes. In particular, we learned that larger entities are more satisfied with current notice practices than smaller, lesser-resourced ones.[155] Congressional efforts to protect small businesses through enhanced notice requirements, such as SBREFA’s mandate for “Small Entity Compliance Guides,” have only partially succeeded and may not benefit nonbusiness small entities.[156] For example, as interviewees explained, a guide to aid small businesses in complying with a regulatory regime is less useful to a local environmental group interested in environmental justice or a group supporting local immigrant communities.[157]
Those we spoke with agreed that while some existing notice strategies are reasonably effective, these strategies do not cover a wide range of agency activities, and their effectiveness varies by the size, sophistication, and “connectedness” of the potentially interested entity.[158] The smallest entities expressed concern with all types of notice giving. Larger entities were content with some aspects, such as direct communications and Federal Register publication, but struggled with regulatory regimes that emerged from dispersed actions such as combinations of rules, memos, adjudications, enforcement or declination decisions, and guidance.[159] Interviewees also raised concerns about “horizontal” regulatory expansion, where entities encounter new regulatory areas without prior experience.[160]
Smaller entities struggle with many of the same challenges as larger entities, which we discuss below, but smaller entities also have special difficulties. Unlike large enterprises, smaller entities typically do not have the resources to hire outside experts, nor the in-house regulatory affairs staff to track the Federal Register or engage in-person with agencies.[161] At the smallest end of the spectrum, “mom-and-pop” or microbusinesses[162] and small community groups are most likely to have small staffs and limited infrastructure for tracking regulatory changes.[163]
Smaller entities often rely on intermediary organizations to get notice of significant regulatory changes.[164] Intermediary organizations include: trade associations; organizations that support specific identity groups, such as the National Black Chamber of Commerce or the National Association of Women Business Owners; and other non-governmental organizations like environmental or consumer advocacy groups. However, many smaller entities, particularly microbusinesses, are not members of intermediary organizations.[165] Representatives from trade associations, labor unions, and agencies all described the critical role intermediary groups play in gathering information from the government, sharing that information with smaller interested entities, and then doing the same in reverse—gathering information from interested entities and relaying that to government.[166] Intermediary groups are crucial for many potentially interested parties. Many businesses engage with multiple trade associations to access agency notices relevant to different aspects of their operation. Organizations like the U.S. Chamber of Commerce, “the world’s largest business organization,” cover nearly every agency but tend to prioritize issues that impact many members.[167]
As one group of interviewees described, small businesses want direction on compliance, and this is a role that intermediaries can play through devices such as compliance fact sheets, checklists, webinars, and other practical resources.[168] State governments also participate in intermediary organizations.[169] For instance, we spoke with a former state agency leader who praised the role of groups like Northeast States for Coordinated Air Use Management, an association of state clean air agencies.[170] Just as with the private sector, these intermediaries provide technical advice and an efficient, two-way, channel to the EPA.[171]
There are, however, holes even in this large net of intermediary organizations. Subjects who spoke for the very smallest businesses, including trade association representatives, explained that the huge benefits of intermediary associations do not flow to the smallest businesses.[172] They are often not members of such groups and are left to their own devices to obtain notice of significant regulatory changes that may affect them.[173]
One small-business representative said that taxes are the most significant regulatory burden for most small businesses and yet, our subjects consistently praised the IRS’s notice practices.[174] The IRS has developed its processes for providing notice with an awareness that it must notify relatively small and disconnected taxpayers. At the same time, private, for-profit tax preparers and computer tax programs also serve an intermediary function in tax policy.[175] According to one of our interview subjects, many small businesses rely on these private companies to keep abreast of changes to the tax rules and to properly complete the businesses’ taxes with those changes in mind.[176] Thus, at least with respect to the IRS, even the smallest businesses do have a means of finding out about, and complying with, tax changes. This might serve as a useful model for other efforts to notify the smallest businesses of regulatory changes through intermediaries.
We learned there is variance among NGOs with respect to their role as intermediaries. In some circumstances, larger NGOs provide an invaluable service in conveying notice to smaller groups.[177] However, advocacy-focused NGOs tend not to be as effective as intermediaries.[178] Small “service-focused” organizations, such as those providing support and resources for immigrant communities, report that larger entities play an essential role in sharing information about regulatory changes.[179] These service-focused NGOs rely on information about the current state of the law to support and guide the individuals and communities with which they work. Representatives of immigrant-support NGOs, for instance, said almost all their information about regulatory changes comes through networks of intermediaries.[180] On the other hand, several interviewees confirmed that advocacy-focused NGOs do not play an intermediary role because their mission is, often, to advocate for policy change rather than provide direct services.[181] Given the important role of intermediary organizations, in Section V.A we consider how agencies can give more effective notice by building capacity within these intermediary networks.
Congress has made special efforts to facilitate notice of agency rules to smaller regulated entities,[182] but our interviews indicate that these efforts have been only partially effective.[183] For instance, the Small Entity Compliance Guides introduced in Section II.B, and discussed in further detail below, are designed to provide regulatory notice and guidance to small entities.[184] However, many of them focus only on regulated entities and not on small interested persons and entities like community groups. These intended beneficiaries often struggle with obtaining effective notice of significant regulatory change.[185] Many of the people we interviewed identified the guides as “small business” compliance guides, implying a more limited audience than Congress intended when calling them “small entity” guides.[186] Some agencies have similarly narrowed the scope of their outreach programs to assist small entities by focusing primarily on small businesses. The EPA, for example, has numerous resources for “small businesses,” but noncommercial entities seem to get less attention.[187] Importantly, not one of the subjects we interviewed mentioned these small entity guides unprompted, suggesting that they are not a prominent source of notice. Finally, although the SBREFA permits agencies to publish guides that address multiple related rules, in practice the guides generally focus on only a single rule.[188] Our interviews demonstrated, however, that interested persons and entities are most in need of notice about regulatory regimes that are comprised of multiple sources of law such as rules, interpretations, adjudications, and enforcement decisions.[189] These regimes are complex, evolve over time, and are not fully captured in stand-alone rules published in the Federal Register or the follow-on compliance guides.
There are nuances to the dissatisfaction among less-resourced, smaller entities, but one overarching issue sums up their concerns: “The [small] firm’s much larger competitors have to comply with the same rules (and maybe even some additional rules, since small businesses are sometimes exempt), but their revenues are so much higher that they can more easily pay an expert to figure it out.”[190]
While not entirely satisfied with existing notice practices, larger entities such as trade associations, unions, large NGOs, and attorneys representing private businesses were generally content with most aspects of current agency practices for providing notice.[191] Every representative of a large organization we spoke with described in-house staff or outside lawyers and consultants who were reading relevant notices in the Federal Register daily and reporting back about important regulatory changes.[192] Attorneys from a sophisticated public-interest NGO explained that they have a staff of legal assistants trained to sort through the Federal Register to gather relevant summaries.[193] One interviewee, a lawyer who had represented large private businesses, said that “rarely, if ever” would his clients have difficulty obtaining notice of regulatory changes that were published in the Federal Register.[194] Another interview subject said trade associations, big unions, and big NGOs are “highly sophisticated players” that “keep close tabs” on everything relevant agencies are doing.[195] Larger entities that do not have in-house regulatory staffs for tracking the Federal Register often pay law firms to do that work, and many firms circulate notices of regulatory changes for free to clients and potential clients to advertise.[196] Those larger potentially interested entities that do not have in-house staff or law firms will typically be part of a trade association that alerts members to regulatory changes.[197] However, even larger entities did express some concerns, particularly about the difficulty of synthesizing dispersed regulatory information and gaining access to material that is not published in the Federal Register.[198]
Providing notice by announcing changes in the Federal Register is effective to the extent interested persons and entities know to track the Federal Register and have the resources to do so.[199] The differences between larger and smaller entities are especially apparent in this respect. Federal Register publication is a valuable tool, but only for those with the resources to track and absorb such a large volume of information.[200] Tracking the Federal Register requires not only knowledge and resources, but regular internet and computer access.
According to our interviews, personal contacts at the agency are also quite effective for larger entities but much harder to access for smaller organizations.[201] According to a lawyer for a large public-interest NGO, under the current system, “personal contacts are the best way to get notice.”[202] Trade association representatives and private lawyers echoed this, emphasizing that personal connections with agency personnel serve various purposes.[203]
First, personal connections allow interested persons and entities to call or email an agency official and ask about forthcoming changes.[204] In some cases, interview subjects reported having regular calls with agency staff to check-in on various projects.[205]
Second, personal connections develop trust. Two trade association representatives explained that when business owners and business leaders know the people who write the rules, they feel more comfortable calling to ask questions.[206] In addition, when they call to ask questions, the contact keeps them on the agency’s radar for direct notice when the agency makes a regulatory change.[207] However, the unequal access by well-connected organizations through private contacts can contribute to the perception or reality that agencies have been “captured” by the interest they are supposed to regulate.[208] In contrast to agency capture, some interviewees said personal connections are impossible because there is too little trust between regulated individuals and government actors.[209] In areas like immigration, the threat of arrest or deportation hinders personal connections.[210] When we described programs like the OSHA compliance consultation program, in which consultation staff are “walled-off” from enforcement staff,[211] these interviewees were skeptical because the lack of trust ran too deep for a bifurcated arrangement of this nature to be effective.[212]
Finally, personal connections can help interested persons and entities participate in regulatory development, which in turn positions them well to get notice when changes become official. Several interviewees said that the biggest problem for them was not lack of “back end” notice of regulatory changes.[213] Instead, the biggest problem was getting “front end” notice when agencies begin the process of deliberating on regulatory changes.[214] Our interviewees frequently reminded us that when interested parties participate in rule development they will almost necessarily know about regulatory changes because they are aware those changes from the beginning.[215] Personal connections are an important way to gain invitations into early stage development.
In short, our research strongly suggests that personal connections are an important conduit for notice and that larger entities can take better advantage of this channel of communication.[216] In SBREFA, Congress attempted to promote similar personal connections for smaller entities by directing agencies to “answer inquiries by small entities.”[217] Yet our conversations suggest this has not been a complete success.[218]
Despite high satisfaction with the Federal Register and personal connections, there are nevertheless aspects of notice practice that still pose challenges for large entities. Our interview subjects complained about the difficulty in tracking changes that are neither published nor announced via notices of availability in the Federal Register.[219] Their complaints took two forms. First, there is more difficulty in accessing information that is not published in the Federal Register.[220] Second, this alternative regulatory material, when available, may require sophisticated analysis and synthesis.[221] These challenges apply to smaller entities, regulatory beneficiaries, and interested citizens as well.
“Dispersed” notice of regulatory changes, or regulatory regimes that emerge not from a single legislative rule but a combination of agency materials, or from multiple agencies,[222] poses a challenge even for the most well-resourced and sophisticated entities. A lawyer from a large labor union, for example, noted that with the National Labor Relations Board, the source of regulatory changes is rarely legislative rules in the Federal Register and is instead typically adjudicatory decisions from the Board as well as documents titled “operations memos” and “advice memos” that come from the agency general counsel.[223] Because these various sources of law come together to make up a single regulatory regime, it can be difficult to discover all the important sources of law and interpret them. It can be difficult to interpret how the universe of documents fits together. As Chris Walker and Matt Wiener have written, some agency “adjudication decision making requires substantial engagement with an extensive body of doctrinally complex agency precedent.”[224]
Our interviews demonstrate that dispersed agency policy is primarily a problem within a single agency, such as the NLRB example above. However, there are times when multiple agencies regulate an issue area, and potentially interested persons and entities must collect and analyze information from multiple agencies.[225] One interviewee explained the struggle lesbian, gay, bisexual, transgender, and queer (LGBTQ) organizations encountered in trying to understand the status of legal protections for LGBTQ people when those protections were the subject of changing regulation in the Department of Justice (DOJ), the Department of Health and Human Services, the Department of Education, and elsewhere.[226]
Another area of significant concern even from larger entities is “obtaining initial notice of horizontal regulatory expansions.” By this we mean regulatory changes that cover industries and entities that have not historically been on the lookout for regulations from the agency in question.[227] Earlier, we described the EPA’s 2008 lead repair and renovation rules as an example of a horizontal expansion that brought thousands of small contractors and landlords within the EPA’s regulatory scope for the first time.[228] One interviewee described a rule from the Financial Crimes Enforcement Network expanding the concept of “beneficial ownership.”[229] This rule requires businesses to report the natural persons who profit from the business in order to prevent terrorists and other criminals from laundering money.[230] The rule, however, would cover almost every business in the United States and not only financial institutions.[231] The sense of our interviewee was that the burdens of this rule were not substantial, but because of the reach of the regulation, there would be many sectors and individual businesses that would simply have no expectation or awareness of the regulatory change.[232] Notifying a large population of potentially interested parties that have not previously been regulated by an agency presents difficult challenges; however, some agencies have been successful to some degree by getting the word out through the traditional and electronic media via press releases and public service announcements.[233] Several interviewees explained that commercial media is their best source of information, which we discuss further in Section V.G.[234] Elsewhere in Part V, we consider other strategies to provide initial notice to a wide array of potentially interested entities and individuals.
Our research demonstrates that there are multiple opportunities for improvements in how agencies provide notice of significant regulatory changes, especially regarding providing more effective notice to smaller entities.[235] Fortunately, our interviews also uncovered best practices or novel ideas that might address existing gaps.[236] We address these opportunities in the next Part.
This Part describes and evaluates the potentially promising practices for giving effective notice that we have encountered in our research. Importantly, our research shows that agencies will not provide effective notice merely by selecting the “best” single tool. Face-to-face meetings, for instance, may be a very effective tool in some situations but may not be appropriate for agencies in other situations.[237] As we have learned, certain vulnerable communities will not engage in face-to-face meetings, but many business leaders prefer this method for obtaining notice.[238] Effective notice requires that agencies understand their audiences and consider which tools are most effective in light of the type of regulatory change and the type of potentially interested persons or entities the agency wants to reach.
To account for this variability and diversity, agencies should develop plans for giving effective notice.[239] They should have a nuanced approach, gather data on effectiveness, and regularly reevaluate which tools they are using.[240] This Part begins by describing the process and contents of agency notice plans. It then identifies tools for providing effective notice of significant regulatory changes that agencies have used successfully, and which other agencies may wish to consider as parts of their notice plan.
Agencies should create general notice plans tailored to their audience and mission and study the effectiveness of various mechanisms for providing notice.[241] General, written notice plans should consider matters such as:
Agencies can apply the principles of their general notice plans to develop specific plans for each significant regulatory change.
In limited circumstances, agencies may have reason to keep certain guidance documents confidential.[243] General notice plans should describe the categories of documents the agency will not make publicly available. The plans should also explain the agency’s reasoning for not providing public notice of the contents of these confidential documents.
A consistent refrain in our conversations was the inequitable access to notice between small and large entities.[244] Notice plans should address how to close this gap. An agency’s notice plan should evaluate how the agency can develop specific mechanisms to reach smaller entities and individuals. A critical aspect of notice plans is research to gather empirical data about the effectiveness of various notice strategies and then reevaluating strategies in light of the data. Interviewees were optimistic about notice plans because the plans can serve as a transparent and proactive way to develop and improve an agency strategy.[245] Having the clear articulation of a notice strategy will allow potentially interested parties to understand how an agency provides notice of significant regulatory changes. It will also allow agencies to evaluate their efforts in a more systematic way and build more quantitative knowledge to support agency decision-making. Thus, each notice plan should establish processes for gathering data and evaluating the effectiveness of agency strategies for providing notice.
Several agency officials discussed the different roles of program staff and outreach staff. Program staff are subject matter experts who are most likely to know, and have connections with, key interested entities and intermediaries.[246] Outreach staff are in the best position to make material useable and publicly available.[247] Notice plans can help to coordinate different offices with different perspectives within an agency.
Some interviewees suggested agencies should codify these plans as legislative rules so that agencies are bound by their plans and the public can have consistent expectations for how to gather information.[248] There was no consensus that codifying notice plans in a legislative rule was desirable, but there was a consensus that regardless, notice plans should be open to public comment and easily accessible on agency websites.[249]
Some of the people we interviewed suggested that agencies should appoint chief outreach offices or officers to help develop and implement notice plans.[250] The Federal Energy Regulatory Commission (FERC) launched an Office of Public Participation that would perform this function, among others.[251] Other agencies expressed concerns, including that staff were already overburdened.[252] Appointing an existing official or office as a chief outreach officers may be a potentially promising strategy to make sure that someone is responsible for thinking about and improving notice without hiring new staff. We also recognize that more experience, such as with FERC’s Office of Public Participation, may be useful in determining how effective this strategy can be and that it may be helpful for some but not other agencies.
While some agencies report that they do develop plans for some significant regulatory actions, we did not learn of any agencies that currently have comprehensive notice plans or strategies. Nevertheless, agency officials were generally receptive to experimenting with notice planning.[253]
The Office of the Federal Register (OFR) is the most important single channel for providing notice for most agencies. Most people to whom we spoke felt the Federal Register was an effective form of notice for those who have the capacity to track it.[254] For individuals, non-English speakers, and the smallest organizations, the Federal Register is less effective.[255] Many individuals are unaware of the publication.[256] Those without sufficient computer access have trouble using FederalRegister.gov on a cell phone.[257] The smallest organizations do not have the resources to regularly review the Federal Register.[258] These shortcomings should not dissuade agencies from taking advantage of the Federal Register, which is a largely effective way to provide notice. Instead, we note these shortcomings to remind agencies that the Federal Register is just one among a suite of tools for effective notice.
The Federal Register Act allows the OFR to publish a wide range of documents in the Federal Register.[259] This includes proposed and final rules, presidential proclamations, and guidance documents. According to our conversations with OFR staff, the Office sorts agency submissions into three categories: proposed rules; rules and regulations; and notices of availability.[260] A notice of availability alerts the public to a new document, summarizes the document, and provides a reference to where the full document is available.[261] As information technology has changed and agency websites have become more important, these notices of availability are taking on increasing importance because they may provide a title and sometimes a short description and a link to a document or information on a website.[262] Of course, there is a cost to publishing in the Federal Register, including notices of availability.[263] Agencies pay roughly $450 per Word document page.[264] Thus, the costs for increasing use of short notices of availability of information posted on agency websites would be relatively modest. Agency notice plans should consider, and reevaluate periodically, expanded use of publishing notices of availability in the Federal Register for documents posted on agency websites that announce significant regulatory changes.
This technique can be particularly useful for making guidance documents available to the public. Agencies could publish the full text of documents on their websites and provide a link in the Federal Register notice. Notices of availability would provide clear direction on how to find important documents and allow agencies to give useful summaries. Finally, it would help control costs by publishing longer, full-text documents on agency websites. Our research demonstrates that expanded use of notices of availability and links to agency websites may be one of the most effective avenues to provide notice of significant regulatory changes in the years ahead. However, we recognize that the volume of information on agency websites requires agencies to be thoughtful about what information they notice in the Federal Register. For instance, the Centers for Medicare and Medicaid Services has over 37,000 guidance documents posted on its website.[265] Agencies must balance more notice against the costs and risks of creating information overload and creating “spam” that undermines rather than promotes effective notice.
One concern we heard repeatedly was how to obtain initial notice of horizontal regulatory expansions, by which we mean changes that impose regulatory obligations on entities that an agency had not previously regulated.[266] Improved OFR indexing practices can help in this respect.
The OFR currently maintains a keyword thesaurus to help make indexing more consistent across the Federal Register and Code of Federal Regulations.[267] Consistent indexing will help users search for relevant terms even when those terms appear in a publication from an agency not usually associated with the industry. One interviewee said, however, that agencies are largely unaware of the indexing process.[268]
Although it is not a current practice, our conversations suggested that OFR might be able to expand indexing so that it covers not only keywords for a rule, but also a list of potentially interested entities.[269] This approach would allow potentially interested persons and entities to search a listing for their area of interest or expertise.[270] Currently, interested entities must determine which agencies are most likely to undertake relevant regulatory action and review notices from those agencies.[271] Agency listings of categories of entities likely to be affected would allow potentially interested parties to search across various agencies for any action that potentially impacts their interests. The OFR does not add any content to agency submissions and is not authorized to make any substantive decisions, including how to tag and index documents, so the burden is on agencies to adopt this practice.
The OFR also provides technical tools for improving notice. OFR operates a program called MyFR, which allows personal account management within the electronic Federal Register.[272] Users can conduct sophisticated searches, save those searches in their own account, and, perhaps most importantly, establish their own set of keywords and receive automated notices whenever the Federal Register publishes a document using those keywords.[273] MyFR is open to all and provides a variety of services, but relies on agencies providing keywords to make some of the services functional. Most of our interviewees were not aware of MyFR. However, one interviewee, from a small nonprofit, was very positive about the value of MyFR, calling it as her primary tool for using the Federal Register.[274] This suggests that MyFR may be underutilized and agencies, as well as the OFR, should consider how to publicize its availability on their websites, through social media, or by helping intermediary organizations understand and explain MyFR to individuals and smaller organizations.
Similarly, OFR and the Government Printing Office have created eCFR.[275] Broadly speaking, eCFR is an electronic version of the Code of Federal Regulations (CFR), allowing easy browsing, searching, and navigability. eCFR provides valuable innovations related to notice. For instance, eCFR allows users to identify recently updated regulatory text, compare versions of regulations, and link between related CFR, Federal Register, and United States Code content.[276] As with the Federal Register, eCFR also allows users to create myCFR accounts and create personalized notifications of updates.[277]
Each service is valuable on its own because each makes it easier for interested entities to access information about regulatory changes. There are, however, two shortcomings.[278] First, interested entities must know about these tools before they can use them. Second, eCFR and myCFR only provide information about material codified in the CFR.[279] The CFR does not include guidance documents, advance notices of proposed rule-making, information requests, and other important material that is not the final version of “general and permanent” regulations published in the Federal Register.[280]
OFR also provides an “Application Programming Interface” (API) to users who want to gather information from the electronic Federal Register.[281] An API allows a software agent to access and collect data hosted in the database or from a wider data repository.[282] For instance, a user could use an API to “scrape” FederalRegister.gov daily, capturing the text and metadata from every publication. That can be done with specific filters or as a general “data dump” of everything that is accessible through the web protocol. Users can then analyze that data further and search for relevant notices. OFR opens its data to this flexible tool, which might be usable for more technically savvy interested persons and entities but not for all users. The high technical bar creates further inequity, but agencies can experiment with developing handbooks—and perhaps even supporting training and publicity—to make these types of advanced technological tools more widely accessible.
Agency-authored user manuals and digests that synthesize and summarize regulatory regimes are an important source of effective notice.[283] One interviewee from within the government said that notice is particularly a problem for “docket agencies.”[284] The interviewee used the term “docket agencies” to describe agencies that make policy primarily through adjudications.[285] In these agencies, adjudicatory policymaking is piecemeal, meaning it is more difficult to track.[286] For instance, a person with whom we spoke noted that at least one agency that makes policy through adjudication would benefit from more synthesis of its policy.[287] Private companies produce “deskbooks” summarizing policy and practice in different agencies.[288] The deskbooks are costly, slow to update, and carry less weight because they do not come from the agency.[289] However, countervailing considerations may include whether interpreting the implications of agency rulings is an appropriate use of agency resources, and whether statements in such manuals and digests might impede agency flexibility or have an adverse effect on enforcement litigation.
Some interviewees also mentioned the difficulty of tracking regulatory changes that cover an identifiable class of individuals or businesses but emerge from different agencies, such as changes to LGBTQ protections coming from the Department of Education, the DOJ, and other agencies.[290] One of these interviewees explicitly said that interagency summaries describing related regulatory changes would be very helpful.[291]
SBREFA requires Small Entity Compliance Guides.[292] These guides assist small entities in complying with an agency rule and are meant to simplify the process as compared to distilling requirements from the Code of Federal Regulations. The compliance guides come with specific requirements for accessibility, including “posting . . . the guide in an easily identified location on the website of the agency,” “distribution of the guide to known industry contacts, such as small entities, associations, or industry leaders affected by the rule,” and establishing dates for publishing the guides, “including the posting and distribution of the guide,” when the rule is published “or as soon as possible after that date,” and “not later than the date on which the requirements of that rule become effective.”[293]
None of the people we interviewed mentioned these guides unprompted, suggesting that they are not currently a major source of notice of regulatory changes. When specifically asked, a few subjects said that small businesses seem to benefit from the guides.[294] One government official said “there have been no complaints from agencies” when we asked about the time or resources necessary for agencies to produce them.[295] However, another interview subject said that while the guides are useful, they are not as useful as trade associations when it comes to communicating the details of rules.[296] The guides are focused only on businesses, which are not the only relevant small entities when it comes to notice. The guides typically do not synthesize multiple developments,[297] providing explanations only of single rules, which limits their usefulness. Agencies might consider whether they can update these guides more regularly and, if appropriate, synthesize information from multiple guides into more comprehensive manuals.
Despite some shortcomings,[298] the guides are essentially plain-language summaries on how to comply with a specific rule. A synthesis manual is a similar strategy: a plain-language summary that does not simply convey details of a single rule, but that synthesizes a dispersed policy regime that includes rules, guidance, statutes, and other sources of law or policy. This is one of the weak spots of current notice practices, and large and small entities alike say they have difficulty assembling diffuse agency materials into coherent wholes.[299]
The EPA Pesticide Registration’s Label Review Manual is a good example of synthesizing multiple regulatory developments into a coherent whole.[300] The manual compiles existing law and interpretations in eighteen chapters which include references to primary documents, making this diffuse regime accessible and searchable all in one place.[301] EPA provides an overarching table of contents and then an additional table of contents for each chapter, making it easy to pinpoint relevant provisions rather than sorting through all 289 pages. We discussed this manual as an example of a potential strategy for improving notice of significant regulatory changes with many of our interview subjects, and those who were aware of it praised it.[302] One interviewee described it as “a great explainer of the law.”[303] In addition, the manual provides links to controlling law so that users can reference primary documents. Interviewees from one litigation-focused NGO preferred primary legal sources rather than summaries but said that if summaries contained citations to primary sources, they could be very useful.[304]
Other agencies offer similar user manuals. The Centers for Medicare and Medicaid Services have “created a comprehensive manual system that presents compliance information on virtually all CMS regulations. The manual chapters pull together all the issuances on a particular topic . . . and provide integrated and cohesive statements of operational policy.”[305] The Patent and Trademark Office (PTO) has developed the Trademark Manual of Examining Procedure.[306] According to the PTO, “[t]he Manual is published to provide trademark examining attorneys in the USPTO, trademark applicants, and attorneys and representatives for trademark applicants with a reference work on the practices and procedures relative to prosecution of applications to register marks in the USPTO.”[307] A notable feature of the PTO’s publication of the Manual is that it also makes archived versions available, allowing users to compare current guidance to past guidance going back as far as 2005.[308]
Several considerations may help agencies produce the most effective user manuals and digests. Agencies should consider the target audience and design manuals with that audience in mind. For example, a manual may provide information specifically for practitioners and focus on agency rules of procedure. Alternatively, a manual could summarize substantive rules and standards and be useful for regulated entities planning for compliance. When agencies identify their target audiences, they can also publicize the manuals and digests directly to those audiences.
Manuals and digests should also include tables of contents and indexes. These tools will not be effective if users must read through the entire length of the document, likely hundreds of pages, to find the information most pertinent to them.
Digests and user manuals can be important tools for providing effective notice, but it is important for agencies to balance this against the potential costs. Manuals will require regular updates as agency policy changes. The staff time to keep manuals updated may be significant, but without regular updates manuals could become a source of misinformation. Agencies can mitigate this risk by including information about how often, and under what circumstances, they will update the document.
As noted at the beginning of this Part, digests and user manuals run the risk of hampering enforcement litigation if litigants rely on incorrect information in the manual. To address this concern, manuals should prominently include the date on which the manual was last updated. In addition, manuals should cite and link to key authoritative documents such as the Code of Federal Regulations and relevant agency guidance and interpretations.
Emerging technologies offer a range of opportunities for improving how agencies give notice. These strategies range from the familiar, such as social media, to the cutting edge, like machine interpretable regulatory text and artificial intelligence (AI). There is a difficulty, however, in assessing these strategies or recommending them as best practices. Digital technology changes rapidly. Social media is an important tool today but may not be tomorrow, just as telephone calls and even email have become less important to younger generations.[309] Some interviewees said they relied on social media platforms, particularly Twitter/X, to learn about significant regulatory changes.[310] Others lamented that it is harder than it once was to connect with agency personnel over the phone.[311] For these reasons, agencies should periodically reconsider the effectiveness of different technological approaches in updating their notice plans.
Some interview subjects reported that some agencies have been using social media, especially Twitter/X, as a tool for notice.[312] Twitter/X is inexpensive and far-reaching, allowing interested entities to effectively “sign-up” for notice by following agencies of interest. A variety of interviewees from small and medium-sized NGOs said Twitter/X was efficient and effective.[313] Some agencies have focused on social media to reach audiences that are not English-speaking.[314] Interviewees who work with immigrant communities noted that some people can only access the internet using cell phones.[315] The brevity of Twitter/X posts[316] therefore makes Twitter/X much more accessible on a phone than the Federal Register, agency websites, and any other platform with more text. Moreover, the analyses of social media data could be a beneficial source of insights for gauging public responses to policies and overall behavioral trends. Recently, social media platforms have been scrutinized due to many cases of misinformation and disinformation,[317] a problem that agencies can also partly tackle by providing notices of regulatory changes through official governmental social media channels. Lastly, there is a constant digital migration between platforms (such as Facebook to Twitter/X, and more recently towards TikTok or Instagram). Agencies should track these migrations and become familiar with a variety of platforms in order to adapt quickly to changes in the platforms that their intended audiences are using.
Email lists and listservs are another useful strategy. Agencies can use email lists at very low cost to reach parties who have signed up to receive notice as well as those the agency can identify as likely interested.[318] Moreover, interested parties can sign up for subject-specific lists within a given agency, narrowing communications to the areas that are most relevant because mail alerts are possible for specific updates on specific policies.[319] The EPA, for example, has an email subscription process that allows users to customize the emails they receive based on language, region, and over one dozen specific interest areas.[320] “EPA [email] lists can be gold for small community groups,” said one lawyer who was a state environmental regulator and represents environmental justice groups.[321] In addition, emails can be short and simply inform the recipients of new developments and call to their attention where more detailed information is available, and recipients can opt out if they find the emails are not useful to them.
Email listservs are most valuable when an agency has a “fairly stable and small population” said one agency official.[322] For example, an interviewee suggested that the Federal Aviation Administration can probably reach every airport manager in the country, including all the smallest airports, with a single blast email.[323] The number of recipients on that email list is probably around 5,000.[324] This is a relatively easy and useful strategy when an agency is providing notice to a discrete and defined audience like airport managers. It becomes more difficult when an agency like the IRS needs to reach a pan-industry group of millions. Interested entities would need to know that such a list exists and how to sign up for it. This means the technique is difficult to apply to horizontal expansions to new parties that were not previously regulated. Interviewees from a small litigation-focused NGO and the owner of a microbusiness all explained that they do not use government email lists because they worry about agencies sending too many “spam” emails, making it difficult to focus on the most important information.[325] Interviewees at small NGOs that are not primarily legal were more enthusiastic about the value of email lists.[326] This comparison demonstrates that the effectiveness of different notice strategies can vary with the type of organization an agency is trying to reach.
Search engine optimization is also a strategy for improving the online visibility and searchability of a website by assuring that it appears high on a list of search results that use particular keywords or key phrases. We spoke with several interviewees, including one who represented environmental justice communities, and several who are part of immigrant communities, who noted that when somebody is aware that they need information from a given agency that person is likely to start with a simple search using Google, Bing, or any other commercial (for-profit) search engine.[327] The problem, according to interviewees, is that sometimes agency regulatory material does not readily appear in such searches.[328] Our interviewees offered several possible reasons for this. Internet searches can return so many results that it is hard for people to find the most relevant.[329] In the immigration arena, both scammers and language barriers are a constant hurdle.[330] For example, we ran Google searches for terms like “temporary protected status” and “visa renewal” and although official government websites were always among the results, for-profit and nongovernmental websites were inevitably intermingled. As noted earlier, it is easier to sort through a long list of results on a computer screen than a phone screen, but in some cases individuals can only access the internet on phones.[331] Among other things, the difficulty some people face when using search engines suggests that agencies should consider the best strategies for indexing their content so that it is “optimize[d]” for commercial search engines.[332] Commercial search engines already tend to “favor government websites over others” but webmasters must still “tell[] the search engines what keywords the page should be ranked for ”[333] When webmasters “optimize” their websites in this way, the websites are more likely to appear in searches based on “the specific keywords which users are typing into Google, Bing or other search engines.”[334] Accordingly, a search engine that only returns official government documents could be a useful tool (this would be similar to Google Scholar, which returns results only from academic publications). One interviewee noted another possible problem with commercial searches for government documents. Many important documents are only available in PDF format.[335] If the PDF document is not machine readable, searches for keywords within these documents may not appear in a search. Search engine companies are constantly updating their algorithms, but nonetheless agencies should review their websites to improve “search engine optimization.” Agency IT staff should evaluate the organization, indexing, and file format of their content so that it appears more readily when interested entities are searching for regulatory information. Rather than “reinventing the wheel” by developing internal search technology, agencies might consider working with existing search engine providers to understand how to utilize existing resources to optimize their searchability. For example, agencies should identify keywords that would increase the probability of search hits that would help land their webpage on the top of a search list.
As discussed above, some agencies use email lists that allow potentially interested persons to sign up for emails on specific topics.[336] This is an example of employing a technological solution that allows users to identify the specific topics in which they are interested so they can receive custom notice. Agencies can employ similar strategies beyond email. For example, the USDA offers an “RSS” feed that can automatically alert users to any changes on the agency’s website.[337] Such a tool does not require agency staff to actively reach out to interested persons by, for example, composing an email or press release. Instead, whenever the agency makes updates to the website, the feed will automatically alert users. Agencies can combine the automation of a tool like an RSS feed with the topic-by-topic customization of some email lists.[338] This will allow users to select a narrow topic, such as USDA programs related to eggs, and, whenever USDA makes any changes involving the word “eggs” the tool will automatically alert the user to those changes.
Although our research and interviews did not uncover significant use of artificial intelligence in the notice process, as large language models continue to improve and become more commonplace, AI will become a critical tool. AI refers to the use of data and machine intelligence to produce knowledge and support decision making, such as summaries, classifications, or answers to questions, “somewhat like humans do.”[339] AI is already proving to have value in regulatory compliance by, for instance, helping entities more easily gather and assess information about applicable regulations.[340] While the present role and future possibilities of AI are vast, this subject deserves more attention in separate research as the technology matures.[341]
Agency websites can be an excellent tool for providing notice provided that they are well organized and provide clear instructions about where to find information.[342] As discussed earlier, various statutes mandate or incentivize publishing documents on websites. Likewise, on a number of occasions, the Administrative Conference of the United States has recognized the value of websites for providing notice of agency activity.[343] Despite their value, there are also concerns about the ability to navigate websites and easily access information. One agency official commented that some agencies have effective website search functions while others are “clunky.”[344]
OSHA is a good example of how agencies can present and organize material on a website. OSHA uses FAQs, guidance documents, and press releases, and makes these materials available on its website.[345] OSHA also relies heavily on email listservs, though an interviewee who was not affiliated with OSHA opined that the value of these lists is limited because OSHA regulates such a large range of businesses.[346] More promisingly, OSHA has specific webpages dedicated to each of its regulatory programs and uses webpage banners on related pages to “advertise” the presence of webpages for associated rules.[347] OSHA further has a biweekly newsletter called QuickTakes that reports not only on rulemakings but also on enforcement actions, “outreach activities, compliance assistance, and training and educational resources.”[348] QuickTakes contains valuable content, but it is not clear how well-known QuickTakes is. For instance, one lawyer who had significant OSHA-related practice was unaware of QuickTakes.[349] The Food Safety Modernization Act[350] requires the FDA to “publish the list of the foods designated . . . as high-risk foods on [its] [i]nternet website.”[351] This is a rare example of Congress directing an agency to publish portions of new regulations on its website in addition to the Federal Register.[352] The Food, Drug, and Cosmetics Act further requires electronic publication of guidance “as feasible,” including opportunities for public participation in guidance development.[353] Similarly, the Act provides that “[t]he Secretary, acting through the Commissioner, shall maintain electronically and update and publish periodically in the Federal Register a list of guidance documents. All such documents shall be made available to the public.”[354]
A microbusiness owner with whom we spoke described the FDA’s website as her key source of notice of regulatory changes.[355] She regularly reviews FDA warning letters and uses those letters to help guide her own business practices.[356] There are over 3,000 warning letters available in the FDA database,[357] but this business owner said she can search because she sorts the database by the subject of the warning letter, allowing her to focus only on those letters that relate to her business.[358] The database is also sortable by the FDA office that issued the letter, further allowing her to focus on the most relevant documents.[359] In short, the flexibility of search and sort functions allows users, even in small businesses, to access information effectively. Other agencies should consider improving the searchability of their websites by including keywords, dates, identification of the issuing office within the agency, type of document, and other information that may help users identify the documents that are most important for them. One shortcoming, according to an interviewee, is that people must know this material is available, or it will not be an effective source of notice.[360] Agencies should clearly present information on their homepages to help potentially interested entities understand what information is available and how to access it. Indiana’s “virtual file cabinet” serves as a good example of this approach, as we explain below.
Agency websites are not effective tools for notice of significant regulatory changes unless they are well organized and maintained. Some interviewees related stories of dead links or links that do not lead to the correct destination.[361] Another interviewee complained that online databases of agency material are sometimes not searchable or the search function does not work properly.[362] Another person complained about the impossibility of tracking a Center for Disease Control (CDC) policy. According to this person, while the CDC published a new rule in the Federal Register, some significant controversy prompted the CDC to respond with various changes and new communications.[363] However, the interviewee explained, the CDC did not publish the changes in the Federal Register or on a single webpage, “but rather, on more than a dozen separate webpages.”[364]
Websites are generally accessible and affordable tools for providing notice, but our interviewees’ complaints demonstrate that websites will not achieve their full potential unless agencies understand their audience, what types of information that audience is seeking, and what problems they have encountered accessing it. For example, agencies might consider voluntary surveys of users to better understand their problems and suggestions for improvement, as many commercial enterprises already do. Agency staff should maintain the websites to keep links up-to-date and to post new material. Websites should be searchable, especially when they house data-bases of material such as guidance documents and adjudicatory decisions. Likewise, some interviewees suggested that websites might include “how-to” instructions for accessing information.[365] As an example of an excellent website tool, one of our subjects described the “Virtual File Cabinet” that the Indiana Department of Environmental Management maintains.[366] The website includes prominent and explicit instructions on the front page, and the Virtual File Cabinet itself has a simple search feature that covers the full spectrum of agency public records.
Well-organized and maintained websites can be very effective when paired with other forms of notice, such as social media.[367] Agencies can post information about regulatory changes and then provide links to relevant documents housed on the agency website. Interviewees spoke highly of this strategy.[368] Interviewees also reported that agencies are effective when they post short notices of availability in the Federal Register, which describe regulatory changes and provide a web address for full-text material on agency websites.[369] As we described at the start of this Section, agencies should develop comprehensive notice plans. One important element of these plans might be considering how best to notify users of where to find material on an agency website. One interviewee highly recommended that agencies prominently post a brief document on their homepages to serve as a guide to users about where to find the information they are seeking.[370] This interviewee described her experience searching an agency website for a particular case file.[371] She began her search on a database of similar files but was unable to find what she was looking for.[372] She eventually found the case file on another section of the website.[373] She remarked that if agencies provided clearer direction on website navigation, she, and others, would not “get lost” on agency websites.[374]
Some agencies host blogs on their websites and report that this can be an effective technique for tailoring notice to the interests and needs of particular groups.[375] Until recently, the Federal Trade Commission tailored its blogs to different categories of potentially interested persons and entities. Blog posts are drafted in language accessible to the targeted audience.[376] For example, some are tailored to consumers and others to businesses. Postings typically contain links to official documents such as Federal Register publications or records of Commission decisions.
Targeted agency publications can effectively reach identifiable audiences. The IRS is a good example. The IRS has several publications for communicating regulatory changes, each of which is accessible online.[377]
The weekly Internal Revenue Bulletin is “the authoritative instrument for announcing official rulings and procedures of the IRS and for publishing Treasury Decisions, Executive Orders, Tax Conventions, legislation, court decisions, and other items of general interest.”[378] The Bulletin is unusual because it reports on internal policy and outside information such as legislation, judicial opinions, and executive orders, thereby giving readers a more holistic understanding of the regulatory landscape.[379]
The Centers for Medicare & Medicaid Services also offer an array of publications. The Medicare Learning Network is a series of training and compliance materials including articles, brochures, and fact sheets along with internet-based courses.[380] The Centers write them in “plain language with actionable tips to use in day-to-day work.”[381] The Centers also publish a Quarterly Provider Update, which “is intend[ed] to make it easier for providers, suppliers, and the general public to understand the changes [the Centers] are proposing or making in the programs [the Centers] administer.”[382]
Agencies should use commercial media to alert the public to regulatory changes, especially horizontal expansions. Most of the small organizations with which we spoke said press releases and commercial media coverage were effective.[383] For many, coverage in national news is effective because it does not require the potentially interested party to have any initial knowledge of the regulatory change.[384] This is particularly true for the general public that is intended to benefit from regulatory changes but is not likely to monitor agency websites and publications.[385] Most agencies with which we spoke already have public affairs offices that issue press releases and attempt to obtain coverage in both the relevant trade press and in general purpose media.[386] In addition, some agencies, including OSHA and the CDC, have been successful in getting their messages about new regulations or other initiatives covered as “public service announcements.”[387] This is a technique that others might consider using in appropriate circumstances.
Large and small entities alike said that personal connections are important to how agencies currently provide notice, although personal connections also present equity problems.[389] Larger entities were generally satisfied with the opportunities for direct interactions, while smaller entities felt that such interactions tended to benefit larger enterprises.[390] Although some smaller entities reported direct connections to agencies, most felt that staff resources necessary to build and maintain those connections were too high, or there was a deep lack of trust in government agents and therefore an unwillingness to engage in direct connections.[391]
Many agencies attend conferences; for example, the IRS regularly participates in the ABA Tax Section’s annual meeting.[392] Attending conferences is a longstanding tradition, and many agencies engage with the public in this way. In-person meetings help establish personal relationships and create a back-and-forth to ensure the public has notice and understands that notice.[393] However, there are risks and downsides as conversations are exclusive, and not all potentially interested entities are invited to every conference, conference attendance may require a substantial registration fee, etc. Moreover, the statements agency officials make at these conferences may rise to the level of guidance, and to the extent there are special procedures for issuing guidance, what an agency official says will either be limited to prepared remarks or will become “spoken guidance” only available to a limited universe of parties. Where remarks by agency officials at a conference or in a speech are significant, agencies should consider making them available to a wider audience through devices such as press releases and/or posting on websites.
Another way to provide face-to-face meetings with fewer equity concerns is webinars open to all.[394] Since the onset of the COVID-19 pandemic, real-time, interactive, but remote meetings have become commonplace.[395] Webinars can be ad hoc, addressing a specific new rule, for example, or they can be regularly scheduled, allowing interested parties to check in with an agency for general updates. For example, the EPA hosts a variety of webinars. In 2020, the EPA offered a series of ad hoc webinars to discuss the regulation of PFAS.[396] In addition, the EPA hosts a monthly webinar series “to translate EPA research and share research resources and information.”[397] One agency hosts regularly scheduled online “Q&A sessions” several times a week during which agency staff are available for interested parties.[398] Both regularly scheduled and ad hoc webinars may help potentially interested entities access information more equitably than in-person meetings, although alerting the public to the webinars is also an important aspect of this notice.[399]
OSHA is attentive to the value of face-to-face communication.[400] The OSHA Alliance Program “enables the agency to develop voluntary, collaborative working relationships with organizations that are committed to workplace safety and health.”[401] The Alliance Program engages trade associations, unions, community groups, and other government entities to share information about OSHA and to gather input from participants.[402] OSHA likewise provides specialty outreach trainings for regional staff so they can provide “boots on the ground” support for regional businesses.[403]
Regional field offices are another resource for face-to-face engagement and may help provide such engagement more equitably.[404] OSHA also provides an example field office program. “Compliance Assistance Specialists in OSHA’s Regional and Area Offices around the country provide outreach to a variety of groups free of charge.”[405] The Compliance Assistance Specialists run seminars and workshops and can provide general information about both regulatory requirements and compliance assistance.[406] By situating these programs in regional offices, OSHA creates opportunities for repeated interactions with potentially interested persons and entities that do not have a presence in Washington.[407] These interactions can foster personal connections that many private-sector interviewees praised.[408] Because access is based on proximity to regional offices rather than high-level connections in D.C., it may be more equitable.[409]
The County Committee system within the United States Department of Agriculture (USDA) also provides an opportunity for face-to-face connections between regulated entities (farmers, in that case) and the agency.[410] These committees consist exclusively of local farmers from the community.[411]
As with many techniques that agencies use to give notice, our interviews demonstrated that larger, more well-resourced entities made more use of local connections than smaller, less well-resourced entities. One interviewee said that EPA regional offices are effective and have good relationships with local organizations,[412] but most interviewees were either unaware of local operations or saw those operations as a threat rather than an opportunity.[413] However, in several instances, smaller organizations reported that simply having the ability to make a phone call to local offices would be very helpful.[414] We reviewed a handful of agency websites, including OSHA[415] and EPA[416] regional offices, USDA county offices,[417] United States Citizen-ship and Immigration Services (USCIS),[418] and the Department of Education Office of Civil Rights.[419] Phone numbers were available on the respective landing pages of OSHA, EPA, and USDA offices. The Department of Education required only one click to find a phone number. USCIS was the only agency where contact information was not readily available.
Phone calls can be especially useful when individuals do not have regular access to the internet.[420] Another practice some agencies use to give notice that does not rely on the internet is posting hard-copy notices in particular physical venues.[421] Hard-copy postings are effective when agencies know potentially interested individuals frequent a specific space and will see the postings. For example, OSHA requires employers to post notices in workplaces and the Coast Guard posts on docks where recreational boaters are likely to see the notices.
Face-to-face meetings and public events provide good opportunities to share information broadly and to connect with interested persons and entities.[422] However, like many strategies, they put the burden on interested entities to develop connections with the agency. Since larger entities are more satisfied with current notice practices than smaller, lesser-resourced entities, agencies should make special efforts to engage smaller entities through direct contact, including making online and telephonic contact available.[423]
One especially valuable method for directing information to entities needing notice most is using intermediary organizations as additional channels of communication to multiply the agency’s efforts to provide notice.[424] This may include agency training programs and outreach offices.[425] Intermediaries like trade associations, lawyers, consultants, commercial and nonprofit trainers, and newsletters may play a critical role in the private sector, but they only reach certain entities, typically not including regulatory beneficiaries or the smallest businesses.[426]
There are, however, examples of how agencies can identify intermediary organizations and work with them to provide effective notice. OSHA facilitates OSHA Training Institute Education Centers.[427] Within this program OSHA authorizes a national network to provide private-sector health and safety trainings for employers, employees, and supervisors.[428] The EPA provides capacity-building grants to help universities “stimulate and support scientific and engineering research that advances EPA’s mission to protect human health and the environment.”[429] The EPA likewise supports small community groups, helping them understand and access federal grants.[430] State governments can also be intermediaries. For instance, an employee of a small landscaping business explained that he and his colleagues learn about changes to EPA pesticide regulations through the state.[431] The state issues chemical application licenses and all licensees must attend a state-run training course that includes updates on changes in federal regulations.[432] Notice plans should consider possible uses of intermediaries, including states, and evaluate their effectiveness.
Many smaller and under-resourced interviewees expressed need for funding to help build capacity as intermediaries.[433] Those playing a role as intermediaries between government and individuals were emphatic that with modest funding they could effectively share notice.[434] These organizations stated they could train individuals how to use agency websites, fill out forms, use apps, and access the Federal Register.[435] Or the organizations could put together their own public service announcements, translate, and explore other tools to facilitate effective notice.[436] In some cases, our interviewees thought it was essential that intermediaries deliver these services because many individuals would not trust information directly from the government.[437]
The agency notice plans we described at the outset of this Section can identify intermediary partners, their needs, and strategies—such as trainings, public service announcements, or joint public meetings—on which the agency and intermediary partner can collaborate.[438] The plans could describe how agencies will facilitate information sharing among smaller groups, train groups to use tools of the Office of Federal Register, or help larger NGOs act as intermediaries.
A microbusiness owner said most microbusinesses in her community got notice through local networks of business leaders.[439] These leaders are connected broadly and join smaller groups for different business types.[440] She communicates with the network by text message and when anybody learns of regulatory developments, they message the group.[441] She said this was effective but only when people learn of regulatory changes, which she sees as the most difficult problem.[442] In short, sharing information is easy but initial notice is harder. Agencies should identify and provide targeted outreach to different networks and intermediaries to capitalize on existing structures for sharing notice of regulatory changes.
Some agencies have programs for targeted outreach to interested persons and entities.[443] This can be a very effective technique when an agency can identify an interested group and has a good way of communicating with them.
OSHA offers examples. OSHA provides free, on-site compliance consultations for small businesses that are walled off from enforcement.[444] The Strategic Partnership Program works with intermediaries, including labor organizations and trade associations, to connect with workers and employers and establish performance targets and strategies to improve workplace safety.[445] OSHA has other programs to advance direct outreach in parallel with other strategies.[446] However, there is little information regarding how effective these programs are in practice and how equitably they reach different entities. If agencies use notice plans as we propose, these plans should include systems for evaluating programs that provide direct notice. IRS tax forms and accompanying instructions also provide notice of complex regulations.[447] After changes to the Internal Revenue Code or tax regulations, the IRS has a staff dedicated to translating these changes into comprehensible forms that help taxpayers understand their obligations.[448] Not only do the forms serve, essentially, as compliance worksheets, the IRS understands that many taxpayers rely on intermediaries for tax preparation.[449] For this reason, the IRS provides forms to tax preparers and software companies so these intermediaries can share updates with tax payers.[450]
The IRS has established user working groups to facilitate the usability of their forms.[451] These working groups create dialogue in which the IRS shares notice of regulatory changes and outreach plans and work-group participants give feedback.[452] The IRS is aware that these groups can be exclusive and, for that reason, makes a special effort to engage a wide range of participants and only holds open, public meetings.[453]
The Securities and Exchange Commission (SEC) also tries to provide initial notice directly to parties.[454] Although challenging, initial and direct notice are important strategies. When parties are unaware of their own need to seek information, initial notice is critical, and when an agency provides that notice directly, the agency does not rely on people learning of obligations on their own initiative.
The SEC’s Division of Examinations serves an important notice-giving and enforcement function.[455] The Division conducts on-site examinations of regulated entities, particularly financial intermediaries such as broker-dealers.[456] The purpose of these examinations is to understand how industry players behave and to inform them of rulemaking, interpretations, and enforcement trends.[457] In that process, the examination team alerts parties to compliance problems, effectively providing direct notice.[458] This notice is not necessarily about regulatory changes, but when parties are out of compliance because they are unaware of regulatory requirements, this post-examination direct notice effectively serves as notice of a regulatory change about which the firm was unaware.[459] As part of its process for inspecting facilities for compliance, the EPA uses a similar meeting commonly called a “closing conference.”[460] At the closing conference, the inspector answers questions and shares information, verifies tentative findings, and describes follow-up actions.[461]
The SEC’s regulatory and enforcement priorities seek to make direct notice possible.[462] Providing direct notice is plainly not always possible, so agencies should consider when the added effort is worthwhile. For instance, the SEC focuses direct outreach efforts on financial intermediaries in part to engender self-regulation and make enforcement more effective.[463]
When working with the more numerous and diverse world of small businesses engaged in capital development, the SEC uses a different approach, aiming to provide support that avoids the need for eventual enforcement actions.[464] This strategy involves providing notice of significant regulatory changes.[465] The Office of Small Business Policy, within the Division of Corporate Finance,[466] conducts outreach specifically to small businesses.[467] It develops plain language summaries of rules related to capital formation, alerts businesses to opportunities for raising capital, and helps them understand the associated regulatory requirements. The Office of Advocate for Small Business Capital Formation specifically focuses on small businesses.[468]
Agency offices dedicated to outreach and connections to otherwise unconnected entities may also be effective tools for notice-giving.[469] The EPA, for instance, established an outreach office for Puerto Rico and the Caribbean.[470] The EPA designed the office to build connections between Puerto Rico and the EPA and to help Puerto Rico establish compliance by building connections with local communities, regulated entities, and government officials.[471] This sort of tailored effort will likely be effective in other contexts, but is expensive and not necessarily adaptable for reaching all underserved entities.[472] Nonetheless, outreach offices targeting particular populations of interested parties may be a best practice in some situations.
Based on our interviews, such offices may be especially effective when they are “walled off” from enforcement programs.[473] This separation may make regulated entities more comfortable engaging with an agency.[474] If outreach offices provide intermediaries with instructions or trainings on how to access agency information, intermediaries can share information with smaller entities, providing a buffer between the most vulnerable communities and the government.[475] By supporting intermediary organizations in this way, an agency may provide effective notice even to communities that do not trust the agency.
Yet another means of direct outreach and face-to-face engagement is inclusion of some entities in the “front end” of regulatory development.[476] SBREFA, for instance, requires that certain “covered agencies” establish panels to gather input from small businesses before rule development.[477] Strictly speaking, these panels are not “notice givers,” but interviewees explained that bringing small businesses, their representatives, and NGOs into the decision-making process opens channels for notice after agencies complete the rulemaking process.[478] SBREFA only requires EPA, OSHA, and the Consumer Financial Protection Bureau panels, but agencies could consider voluntarily adopting that strategy.[479] The SBREFA framework is not the only one for generating early engagement. Many interviewees, particularly businesses and larger NGOs, described the importance of early knowledge of the rulemaking process through Advance Notices of Proposed Rulemakings and other early stage notice of pending regulatory changes.[480] When engaged early, our interviewees said they were more likely to have actual notice of the final changes because of their ongoing engagement with agency staff.[481]
USDA County Committees are also an example of intermediaries providing actual notice. In this case, the intermediaries—the farmers—are integrated directly into the federal agency because Congress has established a program in which regulated farmers elect other farmers from their own ranks to work within the agency.[482] Although one of us has written critically about the committees,[483] as intermediaries that alert farmers to regulatory changes, they may play an important role.[484] Small and under-resourced organizations have praised this sort of local connection but were also wary of such connections when they perceived them as creating an enforcement risk.[485] If agencies were to separate enforcement staff from outreach staff, and communicate that separation to the public, this might increase trust. However, some interviewees said that even with separate enforcement programs, they would not trust local offices or outreach staff.[486]
To date, we have found little or no data documenting how effective or ineffective these various strategies are in practice. One reason for agencies to develop and periodically reevaluate notice plans is to research the costs and benefits of various types of outreach and training programs to develop more information so the comparative evaluation of various agency approaches to outreach and training can be more evidence-based.
One function of guidance is providing notice about changes in agency policy to persons inside and outside of the agency. However, huge volumes of guidance can be counterproductive by making information difficult to access and assess.[487] The notice plans we described, by establishing a proactive planning process, can help agencies strike the right balance in providing effective notice without overwhelming interested parties.[488]
For guidance documents that announce significant regulatory changes, a combination of user manuals, publication on agency websites, and notices of availability in the Federal Register are useful tools and, in their notice plans, agencies should articulate how they make guidance documents available. In fact, in many circumstances, publication on websites and the Federal Register is a statutory requirement.[489] As our earlier analysis of constitutional due process indicates, courts, including the Supreme Court, hold that the government has a responsibility to provide people with fair notice of significant changes to regulatory requirements. However, agencies use guidance documents in different ways, and not all guidance documents raise issues of notice of significant regulatory changes.
This Article, based on our extensive empirical research, considers how agencies can improve the ways in which they provide notice of regulatory changes. Notice is an essential ingredient in good governance and the law sometimes requires agencies to provide meaningful notice.[490] Our interviews demonstrated that current notice practices are only partially effective.[491] The Federal Register is a valuable tool for notice, and many large entities have the resources to track Federal Register notices.[492] Intermediaries such as trade associations act as additional channels of communication, multiplying the agency’s work by relaying it to their members.[493] However, smaller entities do not always benefit from these forms of notice. Further, agencies do not announce every important regulatory change in the Federal Register and some agencies disperse the details of regulatory changes across multiple documents, making changes hard to access and interpret.[494] Small and large entities alike struggle with this dispersed material.[495] Relatedly, when regulations expand to include new subjects, it is difficult or affected parties to track changes because the changes may come from agencies the entities are not already following.[496]
We were able to identify multiple practices that might improve agency notice giving. User manuals, email lists, social media, improved indexing and searchability, and face-to-face interactions, both ad hoc and scheduled, are all promising tools agencies and scholars should study further. Notice plans describing how the agency intends to use these tools in different circumstances will help structure agency notice practices. These plans should also include procedures and criteria for evaluation and adapting the plan in the light of experience, and strategies for reaching underserved audiences. Notice of the law is a central principle of our legal system.[497] It is also a constitutional and statutory requirement in some circumstances and good policy in many more.[498] But the need for effective notice goes further still. Beyond the spectacle of elections, legislation, and blockbuster Supreme Court pronouncements lies the day-to-day practice of democracy. Central to that practice is the ability of the governed to know the rules within which they must operate.[499] In this way, as mundane as it may seem, when agencies strive to provide effective notice, they are striving for a more meaningful democracy.
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Editor-chefe / Editor-in-chief |
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No datasets were generated or analyzed in the course of this study. The research is based exclusively on bibliographic and documentary sources. Additional information may be requested from the authors, where applicable.
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* Article received on April 8, 2026 and approved on April 13, 2026. Originally published in SMU Law Review, Vol. 78, Iss. 4 (2025), p. 985-1044. Available at: https://scholar.smu.edu/smulr/vol78/iss4/4/. DOI: https://doi.org/10.12660/rda.v285.2026.98432.
This Article began as a report to the Administrative Conference of the United States (ACUS) to inform the Conference’s eventual recommendations on Improving Notice of Significant Regulatory Changes. Admin. Conf. of the U.S.: Recommendation 2022-2, Improving Notice of Regulatory Changes, 87 Fed. Reg. 39798 (July 5, 2022). Accordingly, some of the text and analysis in this Article carry over from that report. We are very grateful to research assistants Helia Bidad and Anna Lipin, current and former ACUS staff, Matthew Gluth, Reeve Bull, and Mark Thompson, as well as Connor Raso and other members of the Committee on Regulation and the ACUS Assembly, who provided essential insights.
The basis of this project is a series of interviews we conducted under the auspices of the Conference. Because we promised interviewees confidentiality, we have anonymized interview citations. This work does not necessarily reflect the views of the Office of the Chairman or the Administrative Conference of the United States (including the Conference’s Council, committees, or members). ↑
** Josh Galperin is a Professor of Law at the Elisabeth Haub School of Law at Pace University. Country: USA. E-mail: jgalperin@law.pace.edu. ↑
*** Don Elliott is a Doyle Winter Distinguished Visiting Professor of Law at Yale Law School, and was formerly General Counsel, Assistant Administrator at the Environmental Protection Agency, and a partner at several law firms. Country: USA. E-mail: e.donald.elliott@yale.edu. ↑
E.g., FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). ↑
Id. ↑
E.g., Loper Bright Enters. v. Raimondo, 603 U.S. 369, 385-86 (2024). ↑
Joshua Ulan Galperin, Governing Private Governance, 56 Ariz. State L.J. 765, 797 (2024). ↑
Although important work does explore the substantive content (rather than tools and strategies) of agency notice. For example: plain language drafting, Blake Emerson & Cheryl Blake, Admin. Conf. of the U.S.: Plain Language Regulatory Drafting 1 (2017), https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20 Drafting_Final%20Report.pdf [https://perma.cc/4W4X-TSQH]; agency guidance, Cary Coglianese, Admin. Conf. of the U.S.: Public Availability of Agency Guidance Documents 44 (2019), https://www.acus.gov/sites/default/files/documents/Coglianese%20Guidance%20Report%20to%20ACUS%2005.15.19%20-%20FINAL.pdf [https://perma. cc/W4EQ-T9CS]; making inoperative guidance publicly available, Admin. Conf. of the U.S. Recommendation 2021-7: Public Availability of Inoperative Agency Guidance Documents 4 (Dec. 16, 2021), https://www.acus.gov/sites/default/files/documents/Recommendation%202021-7%20%28Inoperative%20Guidance%29.pdf [https://perma. cc/4XD3-APN8]; and use of social media, Michael Herz, Admin. Conf. of the U.S.: Using Social Media in Rulemaking: Possibilities and Barriers 15 (2013), https://www.acus.gov/sites/default/files/documents/Herz%20Social%20Media%20Final%20Report.pdf [https://perma.cc/CS3P-ZBL2]. ↑
See Corner Post v. Bd. of Governors of the Fed. Rsrv., 603 U.S. 799, 809 (2024). ↑
Id. ↑
The last major congressional action related to regulatory notice was the Freedom of Information Act of 1966. See Freedom of Information Act of 1966, Pub. L. No. 89-487, 80 Stat. 250 (1966). Some research also addresses the issue of regulatory notice, though notice has been a secondary issue, see, e.g., Christopher J. Walker & Matthew Lee Wiener, Admin. Conf. of the U.S.: Agency Appellate Systems 46 (2020), https://www.acus.gov/sites/default/files/documents/Walker%20Wiener%20Agency%20Appellate%20Systems%20Report%20-%2012.14.2020.pdf [https://perma.cc/Z85D-BQNM]; or the question of notice has been limited to specific types of agency action, e.g., Coglianese, supra note 5, at 28; Todd Rubin, Admin. Conf. of the U.S.: Public Availability of Inoperative Agency Guidance Documents 3 (2021), https://www.acus.gov/sites/default/files/documents/Public%20Availabil-ity%20of%20Inoperative%20Agency%20Guidance%20Documents%20Final%20Report.pdf [https://perma.cc/H2E4-XFJW]. ↑
Admin. Conf. of the U.S., ACUS Panel 1: Identifying Underserved Communities, at 8:38 (YouTube, Nov. 3, 2021), https://www.youtube.com/watch?v=KGsl93XmarA [https://perma.cc/78YX-LQE8]. ↑
See Federal Register Act, 44 U.S.C. §§ 1501-11. ↑
Freedom of Information Act, 5 U.S.C. § 552. ↑
Administrative Procedure Act, 5 U.S.C §§ 551-59. ↑
For an explanation of these terms, see discussion infra Section IV. ↑
For the full details of our methods, see Joshua Galperin & E. Donald Elliott, Admin. Conf. of the U.S.: Providing Effective Notice of Significant Regulatory Changes 33-35 (2022), https://www.acus.gov/sites/default/files/documents/Draft%20Report%20on%20Providing%20Effective%20Notice%20of%20Significant%20Regulatory%20Changes%20%28March%2025%2C%202022%29_2.pdf [https://perma.cc/2UJR-5PGE]. ↑
E.g., Michael Sant’Ambrogio & Glen Staszewski, Admin. Conf. of the U.S., Public Engagement with Agency Rulemaking 152 (2018), https://www.acus.gov/sites/default/files/documents/Public%20Engagement%20in%20Rulemaking%20Final%20Report.pdf [https://perma.cc/TR5J-6RDW]. Our own review of political science and other nonlegal literature, as well as discussions with scholars of political science and administrative governance, has returned no significant findings related to the best tools for notice of regulatory changes. ↑
E.g., Telephone Interview with Interviewees 33–39, Gov’t Att’ys (Mar. 9, 2022). ↑
E.g., Edward F. Novak & Charles W. Steese, Survey of Federal and State Environmental Crime Legislation, 34 Ariz. L. Rev. 571, 589 (1992); Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889, 928 (2008) (“[A]gency activity cannot be hidden if agencies expect anyone to comply with their rules.”). ↑
Westlaw searches in the secondary sources database, and Google Scholar searches for “notice” and “voluntary compliance” in the same paragraph returned no results. E.g., Westlaw, “regulatory notice” /p “voluntary compliance”, 0 results (Nov. 22, 2025) (on file with author); Google Scholar, “regulatory notice” & “voluntary compliance”, 29 results (Nov. 22, 2025) (on file with author). ↑
Telephone Interview with Interviewees 16–17, Non-Profit Att’ys (Feb. 16, 2022); Telephone Interview with Interviewee 23, Former Gov’t Att’y (July 12, 2021); Telephone Interview with Interviewee 30, Non-Profit Att’y (June 28, 2021). ↑
Telephone Interview with Interviewee 23, supra note 19; Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
E.g., Jan M. Rosen, Tips for Coping With the Changes in the Tax Code, N.Y. Times (Feb. 23, 2018), https://www.nytimes.com/2018/02/23/business/tips-for-coping-with-the-changes-in-the-tax-code.html [https://perma.cc/6ZXE-KMQG]. ↑
The Agency, its Mission and Statutory Authority, IRS (May 29, 2025), https://www.irs. gov/about-irs/the-agency-its-mission-and-statutory-authority [https://perma.cc/72C3-JX4C]. ↑
Id. ↑
Id. ↑
Telephone Interviews with Interviewees 16-17, supra note 19; Telephone Interview with Interviewee 23, supra note 19; Telephone Interview with Interviewee 30, supra note 19. ↑
See E. Donald Elliott, Re-Inventing Rulemaking, 41 Duke L.J. 1490, 1493-94 (1992); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. Reg. 165, 184 (2019). ↑
See Elliott, supra note 27, at 1493-94; Parrillo, supra note 27, at 165. ↑
See Elliott, supra note 27, at 1491, 1493-94; Nicholas R. Parrillo, Admin. Conf. of the U.S., Federal Agency Guidance: An Institutional Perspective 28 (2017), https://www. acus.gov/sites/default/files/documents/parrillo-agency-guidance-final-report.pdf [https://perma.cc/2JKQ-4DAV]; Blake Emerson & Ronald M. Levin, Admin. Conf. of the U.S., Agency Guidance Through Interpretive Rules: Research and Analysis 8 (2019) https:// www.acus.gov/sites/default/files/documents/ACUS%20IR%20final%20report.5.28.2019.pdf [https://perma.cc/CT2Z-CQQW]. ↑
49 U.S.C §§ 30101, 30106. ↑
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 799 (D.C. Cir. 2006). ↑
Id. at 802-04. ↑
Id. at 811. ↑
Parrillo, supra note 29, at 20. ↑
Id. at 178. ↑
Id. at 180-81. ↑
Id. at 183. ↑
Corner Post v. Bd. of Governors of the Fed. Rsrv., 603 U.S. 799, 801 (2024). ↑
See, e.g., Admin. Conf. of the U.S., Recent Administrative Law Developments: Corner Post v. Federal Reserve, at 37:45 (YouTube, Aug. 1, 2024), https://www.youtube.com/watch?v=3QbkhaZEqlY&t=16s [https://perma.cc/TE4G-G2SS]. ↑
FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). ↑
U.S. Const. amend. V. ↑
Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995). ↑
Id. ↑
Id. ↑
44 U.S.C. § 1507(1). ↑
5 U.S.C. § 553(b)(A). However, there is some uncertainty, described below, about whether the Freedom of Information Act requires agencies to publish certain guidance documents in the Federal Register. 5 U.S.C. § 552(a)(1). It is also worth noting that agencies can and do use a notice and comment process to publish material in the Federal Register even if that material is not strictly subject to such requirements. ↑
See U.S. v. Chrysler Corp., 158 F.3d 1350, 1354 (D.C. Cir. 1998). ↑
FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). ↑
BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996). ↑
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314-15 (1950); see also Adamo Wrecking Co. v. United States, 434 U.S. 275, 290 (1978) (Powell, J., concurring) (“The [thirty]-day limitation on judicial review imposed by the Clean Air Act would afford precariously little time for many affected persons even if some adequate method of notice were afforded. It also is totally unrealistic to assume that more than a fraction of the persons and entities affected by a regulation—especially small contractors scattered across the country—would have knowledge of its promulgation or familiarity with or access to the Federal Register.” (italics added)); Arthur Sapper, The Little Statute that Gets No Respect: How Courts Have Ignored the Administrative Procedure Act with Respect to Whether Pre-Enforcement Challenge Provisions are Exclusive, 35 BYU J. Pub. L. *1, *3 (2020). ↑
Higashi v. U.S., 225 F.3d 1343, 1348-49 (Fed. Cir. 2000). ↑
Id. ↑
Id. ↑
Id. at 1345. ↑
Telephone Interview with Interviewee 3, Gov’t Att’y (July 26, 2021); Telephone Interview with Interviewee 14, Regul. Att’y (June 23, 2021); Telephone Interview with Interviewee 15, Non-Profit Att’y (July 21, 2021); Telephone Interview with Interviewee 18, Non-Profit Att’y (Feb. 7, 2022); Telephone Interview with Interviewee 19, Micro-Business Owner (Feb. 28, 2022); Telephone Interview with Interviewees 25-27, Small Business Att’ys (Sep. 2, 2021). ↑
John C. Sumberg, Note, El Derecho de Avisio: Due Process and Bilingual Notice, 83 Yale L.J. 385, 386, 390 (1973). ↑
Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995). ↑
Id. ↑
Petition for a Writ of Certiorari at 42-43, SNR Wireless LicenseCo v. FCC, 868 F.3d 1021 (D.C. Cir. 2017) (No. 15-1330), cert. denied, 585 U.S. 1016 (2018). ↑
Id. ↑
One district court opinion suggests that when an agency publishes a document on its website, that website availability may satisfy due process. See Fuentes v. Azar, 468 F. Supp. 3d 83, 91 (D.D.C. 2020) (“But Plaintiff fails to explain how the right to a fair and open hearing compels Defendants to grant Plaintiff access . . . to records that . . . were . . . already available on the agency’s website”). ↑
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 317-18 (1950). ↑
Id.; see also E. Donald Elliott & Joshua Galperin, Agency General Counsels, Beware, The Reg. Rev. (Sep. 7, 2022), https://www.theregreview.org/2022/09/07/elliot-galperin-agency-notice/ [https://perma.cc/Z7TU-C2J5]. ↑
44 U.S.C. § 1507(4) (“The publication in the Federal Register of a document creates a rebuttable presumption that all requirements of this chapter and the regulations prescribed under it relative to the document have been complied with.” (italics added)). ↑
Id. § 1507; 5 U.S.C § 552(a)(2)(E). ↑
Telephone Interview with Interviewee 40, Gov’t Att’y (July 8, 2021). ↑
Id. ↑
Kenneth Culp Davis, Administrative Law of the Seventies 75 (1st ed. 1976). ↑
44 U.S.C. § 1505(b). ↑
5 U.S.C. § 552(a). ↑
Telephone Interview with Interviewee 4, Gov’t Att’y(July 26, 2021); Telephone Interview with Interviewees 12–13, Bus. Ass’n Att’ys (June 23, 2021); Telephone Interview with Interviewee 21, Former Non-Profit Att’y (July 15, 2021); Telephone Interview with Interviewee 22, Gov’t Att’y (July 14, 2021); Telephone Interview with Interviewee 28, Non-Profit Att’y (Feb. 4, 2022). ↑
5 U.S.C. § 552(a)(1)(D). ↑
Id. § 552(a)(1)(D)-(E) (emphasis added). ↑
Coglianese, supra note 5, at 21. ↑
E.g., Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1369 (Fed. Cir. 2005). ↑
See Andersen v. Butz, 550 F.2d 459, 463 (9th Cir. 1977). ↑
Id.; St. Eliz. Hosp. v. U.S., 558 F.2d 8, 12-13 (Fed Cir. 1977). ↑
Nguyen v. United States, 824 F.2d 697, 701-02 (9th Cir. 1987). ↑
Cathedral Candle Co., 400 F.3d. at 1369. For more discussion of user manuals and synthesis material, see infra Section V.C. ↑
E.g., 5 U.S.C § 552(a). ↑
See, e.g., Anderson v. Butz, 428 F. Supp. 245, 250 (E.D. Cal. 1975) (holding that 5 U.S.C. § 552(a) may require publication in the Federal Register even when 5 U.S.C. § 553 exempts rulemaking from other procedural requirements). ↑
Id. ↑
E.g., Nw. Env’t Def. Ctr. v. Brennen, 958 F.2d 930, 934 (9th Cir. 1992); see also Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1203 (D.C. Cir. 1996) (stating that Congress created an “incentive” for publication). There may also be a judicial presumption in favor of finding that a party had actual notice and therefore reducing the incentive to publish in the Federal Register. See Tex. All. for Home Care Servs. v. Sebelius, 811 F. Supp. 2d 76, 103 (D.D.C. 2011) (reiterating that publication is only necessary if there is not actual notice and finding that where there was a dedicated website with relevant information, a party must explain why it did not get actual notice through that website). ↑
Coglianese, supra note 5, at 22. ↑
Coglianese, supra note 5, at 22. When FOIA does not require Federal Register publication of guidance documents it generally requires agencies to make documents available on an agency website for public inspection. 5 U.S.C. § 552(a)(2)(B). ↑
5 U.S.C. § 552(a)(2)(E). The drafting in this section is unclear and there is little relevant caselaw to shine light on the matter. But see Marsh v. J. Alexander’s LLC, 905 F.3d 610, 627 (9th Cir. 2018); Pa., Dep’t of Pub. Welfare v. Sebelius, No. CIV.A. 09-808, 2010 WL 2976119, at *7 (W.D. Pa. July 28, 2010). The question remains whether the ability to “rel[y] on, use[], or cite[] as precedent” as laid out in Section 552(a)(2)(E) is only available to documents identified in that subsection or to any “final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public.” Id. ↑
By contrast, § 552(a) seems to subtract precedential weight if an agency fails to publish a document in the Federal Register. ↑
Prior to the 1996 amendments, the statute required documents be made “available for public inspection and copying,” thus the historic phrase “reading room.” Freedom of Information Act of 1966, Pub. L. No. 89-487, § 3(b), 80 Stat. 250, 250 (codified as amended at 5 U.S.C. § 552 (2016) (1966)). ↑
5 U.S.C. § 552(a)(2) (italics added). ↑
Id. § 552(a)(1)(D). ↑
Id. § 552(a)(2)(B). ↑
See, e.g., Anderson v. Butz, 550 F.2d 459, 462-63 (9th Cir. 1977) (holding that agency staff may avoid Federal Register publication if they publish documents in a reading room). But see Appalachian Power Co.v. Train, 566 F.2d 451, 456 (4th Cir. 1977) (“[R]easonable availability is not a substitute for publication; it is one of two conjunctive requirements”). Note that both cases were decided prior to the 1996 amendments that added the website publication requirement, but there is no reason to think that has changed the meaning of the statutory language. ↑
Davis, supra note 68, at 75. ↑
Russell L. Weaver, An APA Provision for Nonlegislative Rules?, 56 Admin. L. Rev. 1179, 1188 (2004). ↑
E.g., Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 38-39 (D.C. Cir. 1974). ↑
5 U.S.C. § 552(a)(1). ↑
Telephone Interview with Interviewee 40, supra note 66. ↑
44 U.S.C. § 3501 note Sec. 207(f)(2)(A) (2002). ↑
Id. § 3101. ↑
Id. § 3102(2). ↑
5 U.S.C. § 603(a). ↑
Id. § 604(a). ↑
Id. § 605(b). ↑
Contract with America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996). ↑
§ 212, 110 Stat. at 858. We discuss these guides in detail, infra Part V and Section V.C. ↑
§ 203(5), 110 Stat. at 858. ↑
Id. § 212(a). ↑
Id. ↑
Id. § 212(b). ↑
I.R.C. §§ 6631, 6751 (West). ↑
I.R.C. § 7805. ↑
See 26 C.F.R. § 601.601. ↑
Id. § 601.601(d)(1) (italics added). ↑
Id. § 601.601(d)(2)(ii)(a). ↑
Id. § 601.601(d)(2)(iii). ↑
See Understanding IRS Guidance–A Brief Primer, IRS, https://www.irs.gov/news-room/understanding-irs-guidance-a-brief-primer [https://perma.cc/73WW-TWJB]; 26 C.F.R. § 601.601(d)(2)(ii)(a) (2025). ↑
Telephone Interview with Interviewee 22, supra note 71; Telephone Interview with Interviewee 31, Non-Profit Att’y (Feb. 1, 2022); Telephone Interview with Interviewee 32, Non-Profit Att’y (Feb. 4, 2022). ↑
Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994). ↑
Id. ↑
Id. ↑
Id. ↑
See id. ↑
Parrillo, supra note 29, at 23 (citing Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). ↑
21 U.S.C. § 371(h)(3). ↑
21 C.F.R. § 10.115(g)(3)(i)(A)-(B) (2025). ↑
45 Fed. Reg. 85400, 85405 (Dec. 24, 1980) (codified at 40 C.F.R. §§ 56.6; 42 U.S.C. § 7601(a)(2)(C)). ↑
Off. of Mgmt. & Budget, Final Bull. for Agency Good Guidance Pracs., 72 Fed. Reg. 3432, 3432 (Jan. 25, 2007). ↑
Id. at 3437. ↑
Exec. Order No. 13,891, 84 Fed. Reg. 55235, 55236 (Oct. 9, 2019). ↑
Id. ↑
Exec. Order No. 13,892, 84 Fed. Reg. 55239 (Oct. 9, 2019). ↑
Exec. Order No. 13,922, 86 Fed. Reg. 7049 (Jan. 25, 2021). ↑
E.g., Proposed Rules Department of Energy: Procedures for the Issuance of Guidance Documents, 86 Fed. Reg. 16114, 16114 (proposed Mar. 26, 2021). ↑
40 C.F.R. § 56.6 (1980) (2024). ↑
One interviewee surmised that a possible reason why some agency staff may be reluctant to publish guidance is that staff can benefit from “insider knowledge” in future employment in the private sector. Telephone Interview with Interviewee 41, Priv. Prac. Att’y (Mar. 1, 2022). Some academic literature would tend to support this notion. See generally Jerry L. Mashaw & David L. Harfst, The Struggle for Auto Safety 16 (Harvard Univ. Press, 1st ed. 1990) (arguing that decisions by some agency officials may be influenced by enhancing their post-government career prospects). ↑
See 5 U.S.C. §§ 552(a)(1)-(2) and further discussion of the legal requirements supra Section II.B. ↑
For further details on our methods, see Galperin & Elliott, supra note 14, at 33. ↑
Galperin & Elliott, supra note 14. ↑
James Frederick, Acting Assistant Sec. of Labor for Occupational Safety and Health, OSHA, COVID-19 Guidance Press Call (Jan. 29, 2021), https://www.osha.gov/news/ speeches/20210129 [https://perma.cc/R7E2-XFXF]. ↑
Occupational Safety & Health Admin., Opinion Letter on Guidance on Wearing Gloves (Apr. 15, 1992), https://www.osha.gov/laws-regs/standardinterpretations/1992-04-15-0 [https://perma.cc/C8LQ-DXDR]. ↑
A rule is “significant” for the purposes of review by the Office of Information and Regulatory Affairs if it will impose annual costs of $100 million, create certain inconsistencies, adversely affect the economy, jobs, competition, or the environment, impact the federal budget in certain ways, or raise novel legal issues. Exec. Order No. 12,866, 58 Fed. Reg. 51735 § 3(f) (Sep. 30, 1993). A rule is a “major rule” for the purposes of review under the Congressional Review Act if it will have “an annual effect on the economy” of $100 million or more, as well as several other circumstances. 5 U.S.C. § 804(2). For a recent Congressional Research Service report that includes a variety of definitions, see generally Maeve P. Carey, Cong. Rsch. Serv., Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register (2019), https://fas.org/sgp/crs/misc/ R43056.pdf [https://perma.cc/T7QY-SCLD]. ↑
See Lead Renovation, Repair and Painting Program Rules, EPA, https://www.epa. gov/lead/lead-renovation-repair-and-painting-program-rules [https://perma.cc/SNU5-V554]. ↑
Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/DACA [https://perma.cc/SW6V-E4M8]. ↑
Id. Despite the government’s description of the programs as merely a shift in enforcement priorities, the Fifth Circuit held that DAPA was a violation of the APA because it was a substantive rule that changed the rights of many individuals and had financial impacts on, at least, the State of Texas but did not go through the notice and comment process. Texas v. United States, 809 F.3d 134, 176-77 (5th Cir. 2015), aff’d by an equally divided court, United States v. Texas, 579 U.S. 547, 548 (2016). The Trump Administration attempted to rescind DACA, which the Supreme Court held, 5-4, was also a violation of the APA. Dep’t Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 4 (2020). ↑
Texas, 809 F.3d at 153. ↑
818 F.2d 943, 948 (D.C. Cir. 1987). ↑
Id. at 945. ↑
Id. ↑
Id. ↑
Id. at 945. ↑
44 U.S.C. § 1507. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 14, supra note 55; Telephone Interview with Interviewee 18, supra note 55; Telephone Interview with Interviewees 25-27, supra note 55; Telephone Interview with Interviewee 30, supra note 19. ↑
Contract with America Advancement Act of 1996, Pub. L. No. 104-121, § 212(a), 110 Stat. 847, 858 (1996). ↑
Telephone Interview with Interviewee 22, supra note 71. ↑
Id.; Telephone Interview with Interviewees 25-27, supra note 55. ↑
Telephone Interview with Interviewee 14, supra note 55; Telephone Interview with Interviewees 16-17, supra note 19; Telephone Interview with Interviewee 21, supra note 71. ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
Telephone Interview with Interviewee 29, Regul. Att’y (June 10, 2021). ↑
The Small Business Administration defines micro-businesses as those with fewer than ten employees. Brian Headd, The Role of Microbusiness Employers in the Economy, U.S. Small Bus. Admin. (Aug. 1, 2017), https://advocacy.sba.gov/2017/08/01/the-role-of-microbusiness-employers-in-the-economy/ [https://perma.cc/AXK9-988A]. ↑
Telephone Interview with Interviewee 14, supra note 55. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Notably, 70% of all businesses are on the small end of microbusinesses, having four or fewer employees. See Detailed Business Counts, N. Am. Indus. Classification Sys. Ass’n, https://www.naics.com/business-lists/counts-by-company-size/ [https://perma.cc/84KC-F22Q]. According to our interviews, the smallest entities are least likely to be engaged with intermediary organizations. ↑
Telephone Interview with Interviewee 22, supra note 71; Telephone Interview with Interviewee 30, supra note 19; Telephone Interview with Interviewee 31, supra note 117. ↑
About Us, U.S. Chamber of Com., https://www.uschamber.com/about [https://perma. cc/JR2U-VXPV]. ↑
Telephone Interview with Interviewees 12-13, supra note 71. In some cases, agencies can and do provide resources of this nature. In particular, the SBREFA requires Small Business Compliance guides. Contract with America Advancement Act of 1996 § 212(a). We discuss these strategies in more detail in Section V.C. ↑
Telephone Interview with Interviewee 24, State Gov’t Att’y (July 23, 2021). ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewees 25-27, supra note 55. ↑
Id. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 22, supra note 71. ↑
Id. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Id. ↑
Telephone Interview with Interviewees 16-17, supra note 19; Telephone Interview with Interviewee 22, supra note 71. ↑
For a discussion of SBREFA and other small-business-focused legislation, see supra Section II.B; infra Section V.C. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
See supra Part III. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 11, Gov’t Att’y (Sep. 8, 2021); Telephone Interview with Interviewees 25–27, supra note 55. ↑
Resources for Small Businesses, EPA, https://www.epa.gov/resources-small-businesses [https://perma.cc/7J55-TUQS]. ↑
Contract with America Advancement Act of 1996, Pub. L. No. 104-121, § 212(a), 110 Stat. 847, 858 (1996). ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Reeve T. Bull, How to Account for Small Business Interests in President Biden’s Modernizing Regulatory Review Initiative, The Brookings Inst. (Sep. 29, 2021), https://www.brookings.edu/blog/up-front/2021/09/29/how-to-account-for-small-business-interests-in-president-bidens-modernizing-regulatory-review-initiative/ [https://perma.cc/HL6S-HKYP]. ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
Telephone Interview with Interviewee 14, supra note 55; Telephone Interview with Interviewee 29, supra note 158. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 29, supra note 158. ↑
Telephone Interview with Interviewee 14, supra note 55. ↑
Telephone Interview with Interviewee 24, supra note 166. ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
Telephone Interview with Interviewee 14, supra note 55. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 21, supra note 71. ↑
We likewise recognize, pursuant to the discussion of legal requirements in Section III, that in many cases agencies are failing to publish material in the Federal Register even where FOIA apparently requires such publication. See supra Part III. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 20, Non-Profit Att’y (Feb. 18, 2022). ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
Telephone Interview with Interviewee 20, supra note 198. ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
Id. ↑
Telephone Interview with Interviewees 12-13, supra note 71; see also Telephone Interview with Interviewee 15, supra note 55 (discussing personal connections without regard specifically to business interests). ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
See Will Kenton, Regulatory Capture Definitions With Examples, Investopedia (Aug. 1, 2024), https://www.investopedia.com/terms/r/regulatory-capture.asp [https://perma. cc/89A4-VK73]. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Id. ↑
See discussion infra Section VI.H. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 24, supra note 166. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 15, supra note 55. Some existing research suggests larger businesses have more resources, particularly dedicated staff, to establish and maintain government connections, including by hiring former agency officials. See, e.g., Bull, supra note 187. ↑
Contract with America Advancement Act of 1996, Pub. L. No. 104-121, § 213, 110 Stat. 847, 858 (1996). ↑
Telephone Interview with Interviewees 25-27, supra note 55; Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 14, supra note 55. ↑
Id. ↑
Telephone Interview with Interviewee 29, supra note 158. ↑
Policy changes can emerge from multiple agencies in different ways. In some cases, Congress delegates overlapping regulatory authority to multiple agencies. Jody Freeman and Jim Rossi call this “shared regulatory space.” Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1136 (2012). For instance, in 2009 EPA and the National Highway Transportation Safety Administration issued a joint rule to limit greenhouse gas emissions from automobiles. Id. at 1169. Our interviewees highlighted another form of “shared regulatory space” in which multiple agencies are not collaboratively developing and issuing a new policy but are instead issuing distinct policies that impact the same group of potentially interested persons or entities. ↑
Telephone Interview with Interviewee 14, supra note 55. ↑
Walker & Wiener, supra note 8, at 44. ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
E.g., Selena Simmons-Duffin, ‘Whiplash’ of LGBTQ Protections and Rights, From Obama to Trump, NPR (Mar. 2, 2020) https://www.npr.org/sections/health-shots/2020/03/02/804873211/whiplash-of-lgbtq-protections-and-rights-from-obama-to-trump [https://perma.cc/4P7X-U8DA] (describing policy changes in the Department of Education, the military, and the DOJ); Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 14, supra note 55; Telephone Interview with Interviewee 29, supra note 158. ↑
See supra text accompanying note 142. ↑
Telephone Interview with Interviewee 30, supra note 19; Beneficial Ownership Information Reporting Requirements, 87 Fed. Reg. 59498 (Sep. 30, 2022). ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 19, supra note 55; Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 18, supra note 55; Telephone Interview with Interviewees 25-27, supra note 55. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 14, supra note 55; Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewee 18, supra note 55. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 11, supra note 183. ↑
Parrillo, supra note 27, at 251-52. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 15, supra note 55. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 9, Gov’t Att’y (July 26, 2021). ↑
Telephone Interview with Interviewee 37, Gov’t Att’y (Mar. 9, 2022); Telephone Interview with Interviewee 23, supra note 19. ↑
E.g., Admin. Conf. of the U.S., Admin. Conf. of the U.S. Recommendation 2020-1: Rules on Rulemaking 1 (Dec. 16, 2020), https://www.acus.gov/sites/default/files/doc-uments/Recommendation%202020-1%2C%20Rules%20on%20Rulemakings.pdf [https://perma.cc/S9B2-EH3S]. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 39, Gov’t Att’y (Mar. 9, 2022). ↑
See About the Office of Public Participation (OPP), Fed. Energy Regul. Comm’n: Off. of Pub. Participation, https://www.ferc.gov/OPP [https://perma.cc/KLN5-LGE9]. ↑
Telephone Interview with Interviewee 23, supra note 17. ↑
Telephone Interview with Interviewees 33-39, supra note 16. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 15, supra note 55. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 20, supra note 198. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
See 44 U.S.C. § 1505. ↑
Telephone Interview with Interviewee 4, supra note 71; Telephone Interview with Interviewee 40, supra note 63. ↑
Telephone Interview with Interviewee 4, supra note 71; Telephone Interview with Interviewee 40, supra note 66. ↑
Telephone Interview with Interviewee 40, supra note 66; Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 4, supra note 71. ↑
Telephone Interview with Interviewee 40, supra note 66. ↑
CMS Small Entity Compliance Guides, Ctrs. for Medicare & Medicaid Servs. https://web.archive.org/web/20200116035522/https://www.cms.gov/Regulations-and-Guidance/Guidance/SmallEntity [https://perma.cc/FYS9-FTKC]. ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
Thesaurus of Indexing Terms, Off. of the Fed. Reg., https://www.archives.gov/federal-register/cfr/thesaurus.html [https://www.archives.gov/federal-register/cfr/thesaurus. html]. ↑
Telephone Interview with Interviewee 4, supra note 71; Telephone Interview with Interviewee 40, supra note 66. ↑
Id. ↑
However, a countervailing consideration is the potential effect on enforcement litigation if a regulated party were not listed. ↑
Telephone Interview with Interviewee 29, supra note 158. ↑
Subscription Options and Managing Your Subscriptions, Off. of the Fed. Reg., https://www.federalregister.gov/reader-aids/using-federalregister-gov/subscription-options-and-managing-your-subscriptions [https://perma.cc/8BQ2-K2EZ]. ↑
Telephone Interview with Interviewee 4, supra note 71; Telephone Interview with Interviewee 40, supra note 66; Telephone Interview with Interviewee 18, supra note 55. ↑
Telephone Interview with Interviewee 18, supra note 55. ↑
eCFR, Off. of the Fed. Reg., https://www.ecfr.gov/ [https://perma.cc/88HT-KCZE]. ↑
Using the eCFR Point-in-Time System: Getting Started, Off. of the Fed. Reg., https://www.ecfr.gov/reader-aids/using-ecfr/getting-started [https://perma.cc/KS7Z-N483]; see also E-mail from John Hyrum Martinez, Dir. of Publ’n and Serv. Div., Off. of the Fed. Reg. (Sep. 23, 2021) (on file with authors) (describing the features of eCFR). ↑
Off. of the Fed. Reg., supra note 273; see also E-mail from John Hyrum Martinez, supra note 273. ↑
A third shortcoming is also worth noting. An interviewee at a litigation-focused NGO commented that the eCFR sometimes incorporates the text of promulgated regulations, but when courts later stay the regulation or the agency delays the effective date, the eCFR fails to update accordingly. In this respect, the tool can be a source of inaccurate notice. ↑
Telephone Interview with Interviewee 40, supra note 66; Telephone Interview with Interviewee 18, supra note 55; Telephone Interview with Interviewees 16-17, supra note 19. ↑
See Code of Federal Regulations, Off. of the Fed. Reg., https://www.govinfo.gov/help/cfr [https://perma.cc/WQ8W-9VXM]. ↑
See FR API Documentation, Off. of the Fed. Reg., https://www.federalregister.gov/developers/documentation/api/v1 [https://perma.cc/EWU8-VZND]. ↑
Id. ↑
Walker & Wiener, supra note 8, at 44. ↑
Telephone Interview with Interviewee 1, Gov’t Att’y (July 26, 2021). ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
See supra Section IV.B. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
5 U.S.C § 601 note Sec. 212(a). ↑
Id. ↑
Telephone Interview with Interviewees 25-27, supra note 55. ↑
Id. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Though SBREFA allows agencies to publish guides covering multiple rules. Contract with America Advancement Act of 1996, Pub. L. No. 104-121, § 212(a), 110 Stat. 858 (1996). ↑
Another potential shortcoming in the use of manuals is that agencies may be concerned that the explanatory materials summarizing policies may limit their flexibility if it is categorized as guidance and therefore requires publication. At least one court implied that a synthetic manual would escape statutory publication requirements, holding that documents merely incorporating regulatory standards published elsewhere do not themselves need to be published. Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1372 (Fed. Cir. 2005). ↑
Telephone Interview with Interviewees 12-13, supra note 71. ↑
See Label Review Manuel, EPA, https://www.epa.gov/pesticide-registration/label-review-manual [https://perma.cc/Q5QH-C6A5]. ↑
Id. ↑
Telephone Interview with Interviewees 25-27, supra note 55. ↑
Id. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Ctrs. for Medicare & Medicaid Servs., supra note 262. ↑
Trademark Manual of Examining Procedure, U.S. Pat. & Trademark Off. (July 2021), https://tmep.uspto.gov/RDMS/TMEP/current [https://perma.cc/8ZCZ-95BT]. ↑
Id. ↑
Trademark Manual of Examining Procedure — Files and Archives, U.S. Pat. & Trade-mark Off., https://www.uspto.gov/trademarks/guides-and-manuals/tmep-archives [https://perma.cc/5X88-3TRU]. ↑
E.g., Sophia June, Could Gen Z Free the World From Email?, N.Y. Times (July 10, 2021), https://www.nytimes.com/2021/07/10/business/gen-z-email.html [https://perma.cc/8EWC-ML9Q]. ↑
Telephone Interview with Interviewee 19, supra note 55; Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Id. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Limited to 280 characters. Counting Characters When Composing Tweets, X Dev. Platform, https://docs.x.com/fundamentals/counting-characters [https://perma.cc/7ZGD-D9YH]. ↑
E.g., Susie Allen, How Social Media Rewards Misinformation, Yale Insights (Mar. 31, 2023), https://insights.som.yale.edu/insights/how-social-media-rewards-misinformation [https://perma.cc/5WQX-Y6WH]. ↑
Telephone Interview with Interviewee 20, supra note 198. ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
Sign Up for News from EPA, EPA, https://www.epa.gov/newsroom/sign-news-epa [https://perma.cc/7J82-HCLQ]. ↑
Telephone Interview with Interviewee 24, supra note 166. ↑
Id. ↑
Telephone Interview with Interviewees 25-27, supra note 55. ↑
Number of Public and Private Airports in the United States From 1990 to 2020, Statista (Dec. 19, 2023), https://www.statista.com/statistics/183496/number-of-airports-in-the-united-states-since-1990 [https://perma.cc/C3MU-AUP3]. ↑
Telephone Interview with Interviewee 19, supra note 55. ↑
Telephone Interview with Interviewee 20, supra note 198. ↑
Telephone Interview with Interviewees 16-17, supra note 19; Telephone Interview with Interviewee 18, supra note 55. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Id. ↑
Id. ↑
Id. ↑
See, e.g., Search Engine Optimization (SEO) Starter Guide, Google, https://developers.google.com/search/docs/beginner/seo-starter-guide [https://perma.cc/7ANB-BB6K]. ↑
Why Government Websites Need SEO, Digital.gov (May 2, 2013) https://web.archive.org/web/20250226220012/https://digital.gov/2013/05/02/why-government-websites-need-seo/. But see SEO For Government Websites: 7 Powerful Success Steps 2025, Elasticity (Apr. 28, 2025), https://goelastic.com/seo-for-government-websites [https://perma.cc/W63G-56FA] (noting that “[c]ontrary to popular belief, search engines don’t automatically favor .gov domains,” but government websites may rank well if they have the qualities they look for). ↑
Id. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
RSS Feeds, U.S. Dep’t of Agric., https://www.usda.gov/rss-feeds [https://perma.cc/ JG8N-3QS9]. ↑
E.g., Sign up for News from EPA, supra note 317. ↑
Christopher Manning, Artificial Intelligence Definitions, Stan. Univ. Human-Centered A.I. (Sep. 2020), https://hai.stanford.edu/sites/default/files/2020-09/AI-Definitions-HAI.pdf [https://perma.cc/3M2G-DDKJ]. ↑
Bull, supra note 187. ↑
Indeed, the Administrative Conference of the United States is studying artificial intelligence. Statement #20 Agency Use of Artificial Intelligence, Admin. Conf. of the U.S. (Dec. 16, 2020), https://www.acus.gov/research-projects/agency-use-artificial-intelligence [https://perma.cc/VWN2-SSLT]. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
E.g., Rubin, supra note 8, at 2; Coglianese, supra note 5, at 2; Jeremy Grayboyes & Mark Thomson, Admin. Conf. of the U.S., Public Access to Agency Adjudicative Proceedings 48 (2021), https://www.acus.gov/sites/default/files/documents/Public%20Access%20Final%20Report%2011.21.21.pdf [https://perma.cc/W9TX-LZRY]; Mark Thomson, Admin. Conf. of the U.S.: Report on Agency Litigation Webpages 1 (2020), https://www.acus.gov/sites/default/files/documents/Agency%20Litigation%20Webpages%20Report%20 11.24.20_2.pdf [https://perma.cc/FJ9P-LZQE]. ↑
Telephone Interview with Interviewee 37, supra note 244. ↑
See, e.g., Agricultural Occupations—Overview, Occupational Health & Safety Admin., https://www.osha.gov/agricultural-operations [https://perma.cc/AEV3-Z78M] (linking to “standards” and then collecting various documents under each standard). ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
E.g., Healthcare, Occupational Health & Safety Admin., https://www.osha.gov/healthcare [https://perma.cc/PQ2W-AK6C] (providing “highlights” of ongoing work on the right side of the page and boxes for related subjects at the bottom of the page). ↑
OSHA Alliance Program: Frequently Asked Questions, Occupational Health & Safety Admin., https://www.osha.gov/quicktakes [https://perma.cc/T6XV-E6TN]. ↑
Telephone Interview with Interviewee 41, supra note 135. ↑
FDA Food Safety Modernization Act, Pub. L. No. 111-353, 121 Stat. 3885 (2011). ↑
21 U.S.C. § 2223(d)(2)(B). ↑
We note that 5 U.S.C § 552(a)(2) generally requires agencies to publish material on websites even if Federal Register publication is not required. See further discussion supra Section II.B. The FDA example in the text is therefore an instance of Congress providing an explicit and program-specific notice requirement. ↑
21 U.S.C. § 371(h)(1)(A). ↑
Id. § 371(h)(3) (italics added). ↑
Telephone Interview with Interviewee 19, supra note 55. ↑
Id. ↑
See Warning Letters, U.S. Food & Drug Admin., https://www.fda.gov/inspections-compliance-enforcement-and-criminal-investigations/compliance-actions-and-activities/warning-letters [https://perma.cc/6UFC-2BZK]. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 22, supra note 71. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Id. ↑
Email from Peter L. Fitzgerald, Professor of L. Emeritus, Stetson Univ. Coll. of L., to Matthew Gluth, Attorney Advisor, Admin. Conf. of the U.S. (Mar. 21, 2022) (on file with authors). ↑
Id. ↑
Telephone Interview with Interviewees 16–17, supra note 19. ↑
See Virtual File Cabinet, Ind. Dep’t of Env. Mgmt., https://www.in.gov/idem/legal/public-records/virtual-file-cabinet/ [https://perma.cc/46MX-5HNR]. ↑
Telephone Interview with Interviewee 19, supra note 55. ↑
Telephone Interview with Interviewee 18, supra note 55. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 33, Gov’t Att’y (Mar. 9, 2022). ↑
E.g., FTC Blogs, Fed. Trade Comm’n, https://web.archive.org/web/20210630161002/ https://www.ftc.gov/news-events/blogs (showing blogs drafted specifically for consumers and businesses). At some point the FTC changed the strategy it uses for posting blogs. It now has a business-oriented blog but apparently nothing directed to consumers. See Blog Posts, Fed. Trade Comm’n, https://www.ftc.gov/about-ftc/bureaus-offices/blog-posts [https://perma. cc/9U2R-2C2B]. The historic approach remains a good example of how agencies can tailor notice to different types of potentially interested entities. ↑
Telephone Interview with Interviewee 23, supra note 19. ↑
Internal Revenue Bulletins, IRS, https://apps.irs.gov/app/picklist/list/internalRevenueBulletins.html [https://perma.cc/E2P6-LPH2]. ↑
Id. ↑
Ctrs. for Medicare & Medicaid Servs., supra note 262. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 19, supra note 55; Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewee 21, supra note 71. ↑
Telephone Interview with Interviewee 6, Gov’t Att’y (July 26, 2021). ↑
Many agencies use public service announcements. For example, the Department of Labor issued ten public service announcement videos, in various languages, about COVID-19. U.S. Department of Labor Publishes 11 New Translations of OSHA Poster to Help Prevent Workplace Coronavirus Exposure, U.S. Dep’t of Lab. (May 4, 2020), https://www.dol.gov/ newsroom/releases/osha/osha20200504 [https://perma.cc/5RCM-R7HK]. OSHA has created public service announcements in the form of video and audio messages related to fall prevention, storm recovery, and more. See Public Service Announcements, U.S. Dep’t of Lab.: OSHA, https://www.osha.gov/psa [https://perma.cc/YYE4-VZCY]. ↑
Another approach to direct engagement is technologies such as “chatbots” and “virtual assistants.” These technological approaches to one-on-one interaction hold promise and the Administrative Conference of the United States has investigated them. See Automated Legal Guidance at Federal Agencies, Admin. Conf. of the U.S. (July 5, 2022), https://www.acus.gov/research-projects/automated-legal-guidance-federal-agencies [https://perma.cc/2DHS-3GCG]. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 20, supra note 198. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 18, supra note 55; Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewee 18, supra note 55; Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewee 23, supra note 19. ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
Telephone Interview with Interviewee 18, supra note 55. ↑
Id. ↑
PFAS Science Webinars for EPA Region 1 and State & Tribal Partners, EPA, https://www.epa.gov/research-states/pfas-science-webinars-epa-region-1-and-state-tribal-partners [https://perma.cc/TD2E-Z879]. ↑
EPA Tools and Resources Webinar Series, EPA, https://www.epa.gov/research-states/ epa-tools-and-resources-webinar-series [https://perma.cc/GAG8-L7HS]. ↑
Telephone Interview with Interviewee 34, Gov’t Att’y (Mar. 9, 2022). ↑
In addition to sharing information with the broader interested public, webinars can serve as training tools to help train intermediaries and other experts in how to comply with a given regulation. Agencies might also develop training programs for regulatory schemes in which intermediaries help carry out the requirements. The EPA’s lead repair and replacement rule provides a good example because contractors, painters, landlords, and other intermediaries are responsible for compliance. Local training programs to help prepare these parties could provide notice of the regulation and guidance on how to comply. A European administrative law scholar noted that such training programs are common in Europe and that governments sometimes pay for training. ↑
Telephone Interview with Interviewee 6, supra note 383. ↑
OSHA Alliance Program, Occupational Health & Safety Admin., https://www.ha.gov/alliances [https://perma.cc/U82E-NTVJ]. ↑
Telephone Interview with Interviewee 6, supra note 383. ↑
Id. ↑
Id. ↑
Compliance Assistance Specialists (CAS), Occupational Health & Safety Admin., https://www.osha.gov/complianceassistance/cas [https://perma.cc/4YHV-EKUE]. ↑
U.S. Dep’t of Lab., At-A-Glance: OSHA 1, 2 (2014), https://www.osha.gov/sites/default/files/publications/3439at-a-glance.pdf [https://perma.cc/FP4Y-T6W4]. ↑
Telephone Interview with Interviewee 6, supra note 383. ↑
E.g., Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 20, supra note 198. ↑
See generally Joshua Ulan Galperin, The Life of Administrative Democracy, 108 Geo. L.J. 1213 (2020) (surveying the unique mechanics of county committees in the context of the modern administrative state). ↑
Id. at 1219. ↑
Telephone Interview with Interviewee 24, supra note 166. ↑
Some agencies have intentionally “walled off” outreach programs and local offices from enforcement programs. Unfortunately, some interviewees, particularly those supporting immigrant communities, said that a formal separation of the enforcement program would not increase trust in other staff. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
OSHA Offices by State, Occupational Safety and Health Admin., https://www.osha.gov/contactus/bystate [https://perma.cc/SNE2-FAVJ]. ↑
EPA Region 3 (Mid-Atlantic), EPA, https://www.epa.gov/aboutepa/epa-region-3-mid-atlantic [https://perma.cc/DQ4N-PNFQ]. ↑
Service Center Locator, U.S. Dep’t of Agric., https://offices.sc.egov.usda.gov/loca-tor/app?service=page/ServiceCenterSummary&stateCode=09&cnty=009 [https://perma.cc/ AYC3-D6LL]. ↑
U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/ [https://perma.cc/ P89R-AA23]. ↑
Office for Civil Rights, U.S. Dep’t of Educ., https://www.ed.gov/about/ed-offices/ocr [https://perma.cc/7Q69-TA5W]. ↑
Telephone Interview with Interviewee 34, supra note 395. ↑
Telephone Interview with Interviewee 33, supra note 372. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 20, supra note 198. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Inter-view with Interviewee 14, supra note 55; Telephone Interview with Interviewee 18, supra note 55; Telephone Interview with Interviewees 25-27, supra note 55; Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Telephone Interview with Interviewees 25-27, supra note 55. ↑
U.S. Dep’t of Lab., supra note 403, at 3. ↑
OSHA Training Institute Education Centers, Occupational Health & Safety Admin., https://www.osha.gov/otiec/ [https://perma.cc/9RWB-S973]. ↑
View Grant Opportunity: EPA-G2023-STAR-B2, Grants.gov (Oct. 19, 2022), https://www.grants.gov/search-results-detail/344114 [https://perma.cc/9MRV-PSJQ]. ↑
See Environmental Justice in Your Community, EPA (Jan. 19, 2021), https://19january2021snapshot.epa.gov/environmentaljustice/environmental-justice-your-community_.html [https://perma.cc/X2DW-RDZS]. ↑
Email from Todd Rubin, Former Att’y-Advisor, Admin. Conf. of the U.S. (Mar. 17, 2022) (on file with authors). ↑
Id. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Id. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Telephone Interview with Interviewee 19, supra note 55. ↑
Id. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 33, supra note 372. ↑
On-Site Consultation, Occupational Health & Safety Admin., www.osha.gov/ consultation [https://perma.cc/FX6Q-4D45]. Compliance consultations are available to entities with fewer than 250 employees at a site and no more than 500 employees nationwide. 50 Years of the OSHA On-Site Consultation Program, Occupational Health & Safety Admin., https://www.osha.gov/consultation/50thanniversary [https://perma.cc/6JAT-KVCG]. ↑
OSHA Strategic Partnership Program, OSHA, https://www.osha.gov/partnerships/ [https://perma.cc/DP85-48PR]. ↑
In supra Section V.E we discussed the QuickTakes publication. And in supra Section V.H we addressed face-to-face programs through OSHA’s field offices. ↑
Telephone Interview with Interviewee 23, supra note 19. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewee 23, supra note 19. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 11, supra note 183. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 29, supra note 158. ↑
Roger Reinhart, Fundamentals for Conducting Compliance Inspections, EPA (July 2019), https://www.epa.gov/sites/default/files/2019-08/documents/reinhart_-_inspection_fundamentals_2019.pdf [https://perma.cc/K8FP-5TUE]. ↑
Id. ↑
Telephone Interview with Interviewee 11, supra note 183. ↑
Thomas K. McCraw, With the Consent of the Governed: SEC’s Formative Years, 1 J. Pol’y Analysis Mgmt. 346, 352 (1982). ↑
Telephone Interview with Interviewee 11, supra note 183. ↑
Id. ↑
Office of Small Business Policy Division of Corporation Finance, U.S. Sec. & Exch. Comm’n, https://www.sec.gov/smallbusiness/OSBP [https://perma.cc/DUQ8-8FQZ]. ↑
Telephone Interview with Interviewee 11, supra note 183. ↑
Id.; see also Office of the Advocate for Small Business Capital Formation, U.S. Sec. & Exch. Comm’n, https://www.sec.gov/oasb [https://perma.cc/LJM8-3J4N]; 15 U.S.C. § 78d(j). ↑
Telephone Interview with Interviewee 39, supra note 247. ↑
Organization of EPA’s Region 2 Office in New York City, EPA, https://www.epa. gov/aboutepa/organization-epas-region-2-office-new-york-city#cepd [https://perma.cc/ ZMD8-JETN]. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Id. ↑
Id. ↑
Telephone Interview with Interviewee 15, supra note 55; Telephone Interview with Interviewee 20, supra note 198. ↑
5 U.S.C. § 609(b). ↑
Telephone Interview with Interviewee 30, supra note 19. It is notable that in our conversations we detected some conflict over who should be part of these panels. Agencies seem to prefer participation from actual businesses while trade associations, perhaps as one would expect, think that they can bring more experience and knowledge to the table. Agencies see some benefit from direct input and direct experience while trade associations point to their aggregate knowledge and political expertise. ↑
5 U.S.C. § 609(d). ↑
Telephone Interview with Interviewee 15, supra note 55. ↑
Admin. Conf. of the U.S., Recommendation 2018-7, Public Engagement in Rulemaking, 84 Fed. Reg. 2146 (Feb. 6, 2019); Sant’Ambrogio & Staszewski, supra note 15, at 152. ↑
Galperin, supra note 407, at 1219 (citing 16 U.S.C § 590h(b)(5)(B)(i)(I) (2012)). ↑
Id. at 1252 (criticizing the committee structure for its reliance on majoritarianism without regard to reasoned and deliberative decision making). ↑
Id. at 1217. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewee 31, supra note 117. ↑
Coglianese, supra note 5, at 36. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
See supra Section II.B.3. ↑
See supra Part II. ↑
Telephone Interview with Interviewee 30, supra note 19. ↑
Telephone Interview with Interviewees 12-13, supra note 71; Telephone Interview with Interviewee 15, supra note 55. ↑
Telephone Interview with Interviewee 32, supra note 117. ↑
Telephone Interview with Interviewees 16-17, supra note 19. ↑
Id. ↑
Telephone Interview with Interviewee 29, supra note 158. ↑
E.g., FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). ↑
See supra Part II. ↑
See Joshua Ulan Galperin, A Restatement of Democracy, 69 Vill. L. Rev. 55, 59 (2004) (“At base, democracy is a justification for coercion.”). ↑