Improving Regulatory Notice

Resumo

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.