____________________________________________________________________________________
CONSULTANT REPORT

Final Report
May 17, 2022
____________________________________________________________________________________

PROVIDING EFFECTIVE NOTICE OF SIGNIFICANT
REGULATORY CHANGES
Joshua Galperin
Assistant Professor of Law
Elisabeth Haub School of Law
Pace University
jgalperin@law.pace.edu
E. Donald Elliott
Distinguished Adjunct Professor
Antonin Scalia Law School
George Mason University
edonaldelliott@gmail.com

This report was prepared for the Office of the Chairman of the Administrative Conference of the United
States. It does not necessarily reflect the views of the Office of the Chairman or the Conference (including
the Conference’s Council, committees, or members).

Recommended Citation
Joshua Galperin & E. Donald Elliott, Providing Effective Notice of Significant Regulatory Changes
(May 17, 2022) (report to the Admin. Conf. of the U.S.) (https://www.acus.gov/report/providing-effectivenotice-significant-regulatory-changes-final-report).

Providing Effective Notice of Significant Regulatory Changes
Final Report to the Administrative Conference of the United States
Joshua Ulan Galperin and E. Donald Elliott
Table of Contents
I. EXECUTIVE SUMMARY ................................................................................................................................................................................................................ 3
A. AGENCIES SHOULD PROVIDE NOTICE OF SIGNIFICANT REGULATORY CHANGES .............................................................................................................................. 4
B. SCOPE OF OUR STUDY .................................................................................................................................................................................................................... 5
C. KEY FINDINGS ............................................................................................................................................................................................................................... 6
i. Smaller, Less-Resourced Entities Are Less Satisfied with Current Notice Mechanisms. .......................................................................................................... 7
ii. Larger, Well-Resourced Entities Are Generally Satisfied. ...................................................................................................................................................... 8
D. AGENCIES SHOULD REGULARLY RE-EVALUATE THEIR METHODS FOR PROVIDING NOTICE. .......................................................................................................... 10
E. PROPOSED RECOMMENDATIONS ................................................................................................................................................................................................... 12
II. SCOPE OF THE STUDY AND DEFINITIONS ........................................................................................................................................................................... 16
A. SCOPE ......................................................................................................................................................................................................................................... 16
B. DEFINITIONS ................................................................................................................................................................................................................................ 18
i. Defining “Significant Regulatory Changes” .......................................................................................................................................................................... 18
ii. Defining “Potentially Interested Persons and Entities” ....................................................................................................................................................... 22
iii. Defining “Notice” ............................................................................................................................................................................................................... 23
III. WHY NOTICE? ............................................................................................................................................................................................................................ 24
A. POLICY REASONS FOR NOTICE ..................................................................................................................................................................................................... 25
i. Compliance ........................................................................................................................................................................................................................... 25
ii. Effective Notice Promotes Fairness and Legitimacy ............................................................................................................................................................. 28
B. LEGAL REQUIREMENTS FOR NOTICE ............................................................................................................................................................................................. 29
i.
Constitutional Due Process ......................................................................................................................................................................................... 29
ii.
Statutes........................................................................................................................................................................................................................ 32
IV. METHODS .................................................................................................................................................................................................................................... 33
V. FINDINGS ....................................................................................................................................................................................................................................... 36
A. SMALLER ENTITIES STRUGGLE TO OBTAIN EFFECTIVE NOTICE ..................................................................................................................................................... 36
B. LARGER ENTITIES ........................................................................................................................................................................................................................ 41
VI. STRATEGIES FOR EFFECTIVE NOTICE OF SIGNIFICANT REGULATORY CHANGES ............................................................................................ 47
A. AGENCY NOTICE PLANNING AND EVALUATIONS .......................................................................................................................................................................... 48
B. EXPANDING COVERAGE IN THE FEDERAL REGISTER ....................................................................................................................................................................... 50
i. Notices of Availability ........................................................................................................................................................................................................... 51
ii. Improving Indexing of Federal Register Entries for Searchability ........................................................................................................................................ 53
iii. Improving Technology in the Office of the Federal Register ................................................................................................................................................ 54
C. DIGESTS AND USER MANUALS ..................................................................................................................................................................................................... 56
D. SEARCH ENGINES AND TECHNOLOGICAL STRATEGIES .................................................................................................................................................................. 60
i. Social Media Platforms ......................................................................................................................................................................................................... 61
ii. Email Lists ........................................................................................................................................................................................................................... 62
iii. Search Engine Optimization ................................................................................................................................................................................................ 63
iv. Custom Automated Notice .................................................................................................................................................................................................... 65
v. Artificial Intelligence ............................................................................................................................................................................................................ 66
E. AGENCY WEBSITES ...................................................................................................................................................................................................................... 67
F. AGENCY PUBLICATIONS ............................................................................................................................................................................................................... 72
G. COMMERCIAL MEDIA OUTREACH................................................................................................................................................................................................. 73
H. FACE-TO-FACE ENGAGEMENT, PHONE CALLS, AND PUBLIC MEETINGS ......................................................................................................................................... 73
I. INTERMEDIARIES, DIRECTED OUTREACH, AND ACTUAL NOTICE ..................................................................................................................................................... 78
i. Intermediaries ....................................................................................................................................................................................................................... 78
ii. Directed Outreach and Actual Notice ................................................................................................................................................................................... 80
J. GUIDANCE .................................................................................................................................................................................................................................... 86
VII. CONCLUSION ............................................................................................................................................................................................................................ 87
VIII. PROPOSED RECOMMENDATIONS ..................................................................................................................................................................................... 88
APPENDIX I: CONSTITUTIONAL AND STATUTORY REQUIREMENTS FOR NOTICE ..................................................................................................... 95
A. CONSTITUTIONAL DUE PROCESS .................................................................................................................................................................................................. 95
B. STATUTORY REQUIREMENTS ........................................................................................................................................................................................................ 98
C. EXECUTIVE ORDER 12898 .......................................................................................................................................................................................................... 105
D. GUIDANCE ................................................................................................................................................................................................................................. 106
APPENDIX II: INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT’S VIRTUAL FILE CABINET “HOW TO” GUIDE ..................... 109

2

I. Executive Summary
The governed are entitled to fair notice of the rules that they are required to obey. That is
a core value of our legal system,1 as well as a basic dictate of international law.
This report addresses how federal agencies alert people and organizations to significant
regulatory changes. We outline legal and policy reasons why agencies should periodically reevaluate and improve their practices for giving notice in view of advances in technology and the
successful practices of other agencies. We describe and analyze potentially promising strategies
that some agencies use to give notice. We recognize that the audiences and missions of agencies
vary greatly and therefore that no “one-size-fits-all” approach to notice will work. Consequently,
we suggest that the appropriate Administrative Conference of the United States (ACUS)
committee consider modest procedural recommendations to improve agency planning and
periodic review of their methods for providing notice of significant regulatory changes. In
addition, we identify potentially promising techniques that other agencies have used for possible
consideration and adoption where appropriate.
Our findings are based on a series of interviews with both large and small enterprises,
public interest groups, agency representatives, and others. The people to whom we spoke were
generally in agreement that tools for providing notice, such as the Federal Register or agency
websites, are effective to some extent. However, interviewees were also in agreement that the
methods most agencies use to provide notice to the public are imperfect and do not cover a
sufficiently wide range of agency actions. Moreover, the level of satisfaction with prevailing
methods for providing notice of regulatory changes varies significantly by the size,

1

E.g., F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

3

sophistication, and “connectedness” of the persons or entities that might have an interest in
receiving notice.2 We conclude there are many opportunities to improve the administrative
process by improving the techniques that agencies use to give notice to interested persons and
entities.

A. Agencies Should Provide Notice of Significant Regulatory Changes
Although notice has not received much attention from policy makers in recent years,3
strong policy and legal considerations counsel that agencies should provide the best notice
practical under the circumstances of significant regulatory and policy changes. Effective notice4
promotes voluntary compliance, thereby reducing the need for coercive enforcement, and
enabling agencies to achieve their objectives more efficiently. Effective notice also helps to
engender a sense of fairness and transparency that contributes to agency legitimacy. Effective
notice can also promote involvement and thereby encourage greater participation by the
community in the agency’s work. Research shows that when agencies communicate with a
community, seek input, and understand its perspectives, they generate more understanding and
acceptance.5

We define “effective” and other types of notice in Section II.B.iii.
The last major Congressional action related to regulatory notice was the Freedom of Information Act of 1966.
P.L. 89-487, 80 Stat. 250 (July 4, 1966). Several ACUS projects have also addressed the issue of regulatory notice,
though notice has been a secondary issue, e.g., Christopher J. Walker & Matthew Lee Wiener, Agency Appellate
Systems (Dec. 14, 2020) (report to the Admin. Conf. of the U.S.) at 46, available at https://www.acus.gov/researchprojects/agency-appellate-systems, or the question of notice has been limited to specific types of agency action, e.g.,
Cary Coglianese, Public Availability of Agency Guidance Documents (May 15, 2019) (report to the Admin. Conf.
of the U.S.), available at
https://www.acus.gov/sites/default/files/documents/Coglianese%20Guidance%20Report%20to%20ACUS%2005.15
.19%20-%20FINAL.pdf; Todd Rubin, Public Availability of Inoperative Agency Guidance Documents (Nov. 22,
2021) (report to the Admin Conf. of the U.S.) available at
https://www.acus.gov/sites/default/files/documents/Public%20Availability%20of%20Inoperative%20Agency%20G
uidance%20Documents%20Final%20Report.pdf.
4
We define “effective notice” and other terms in Section III.B.iii.
5
Webinar: Identifying Underserved Communities, Admin. Conf. of U.S., (Nov. 3, 2021) (presentation of Lee
Raine).
2
3

4

No single comprehensive legal code specifies when and how agencies should provide
notice of significant regulatory changes. Constitutional due process requirements as well as the
Federal Register Act, the Freedom of Information Act, and the Administrative Procedure Act all
require agencies to make certain agency actions “available” in various circumstances, which we
summarize in Section III.B and Appendix I. In addition, as we discuss in Sections III.B.ii, VI and
Appendix I, some program-specific notice requirements also exist. However, agencies do not
always comply with these legal requirements, and even when they do, complying with these
minimal legal requirements does not always result in “effective notice” to “potentially interested
persons and entities” as we define those terms in Section II.B. We discuss the reasons why
agencies may benefit from providing effective notice even when it is not strictly required by law
in Section III.A, “Why Notice?”

B. Scope of Our Study
Improving the ways that agencies provide notice of significant regulatory changes
requires understanding how agencies currently try to give notice as well as how different parties
receive information about regulatory changes. Interest in regulatory changes can be widespread,
ranging from regulated parties that are directly affected to individuals and groups with more
general interests in public policy. This report is limited to “significant regulatory changes,”
which includes binding agency actions such as legislative rules and adjudicatory decisions, but
the term as we define it may also include some non-binding agency actions that have significant
practical consequences. For example, policy statements or agency interpretations that are likely
to change a party’s behavior or affect parties not previously subject to similar regulation may
qualify as “significant regulatory changes.” However, providing effective notice can be difficult
and expensive, and too much information can also be counterproductive and result in

5

“information overload,” so efforts to provide notice must be balanced and tempered by
practicality.6
Potentially interested persons and entities obtain notice of significant regulatory changes
in different ways, and their satisfaction with current methods for providing notice varies
significantly based on their size. Smaller and less well-resourced entities struggle with multiple
aspects of obtaining notice. Although gaps exist, larger entities with greater resources report
greater satisfaction. One representative of a larger business opined that inequity in accessing
information via current notice practices may create a barrier to entry that may benefit larger
entities and work to the disadvantage of smaller ones. In addition, the human capital of agency
employees and their value in subsequent employments in the private sector may be enhanced if
they know agency practices and policies that are not widely known outside the agency.

C. Key Findings
Table 1: Key Interview Findings

•
•
•
•
•
•
•

Small, less-resourced entities and individuals struggle with obtaining notice of
significant regulatory changes.
Larger entities and individuals with more substantial resources generally feel that
agencies are doing a “good job” in giving notice.
The Federal Register is a very effective method to provide notice but many
significant regulatory changes are not published in the Federal Register.
Intermediary organizations such as trade associations and consultants play an
important role in providing notice.
“Horizontal regulatory changes,” in which regulatory regimes expand to include new
parties or new beneficiaries, pose special challenges.
Personal connections and face-to-face meetings are also important channels for
providing notice.
“Dispersed” regulatory regimes, in which agencies address regulatory issues in
multiple ways that are not published in the Federal Register pose a particular
challenge because interested persons must monitor multiple channels of
communication.

6

See III.B.i and Appendix iA for a discussion of the due process standard requiring that agencies provide the best
notice practical under all the circumstances.

6

i. Smaller, Less-Resourced Entities Are Less Satisfied with Current Notice Mechanisms.
Smaller entities such as small businesses, unions, and community and environmental
groups found it more difficult to track changing agency policies7 because they typically have less
internal expertise and fewer resources to hire outside advisors.8 As described below, the Federal
Register is a critical tool for agencies to provide notice. Large, better-resourced entities generally
find the Federal Register effective. But smaller entities typically report that they do not have the
resources to track the publication each day or to pay lawyers and consultants to do so.9
Material not published in the Federal Register is even more difficult to access. Some
agencies have implemented strategies for providing notice of significant regulatory changes not
published in the Federal Register, including posting on agency websites, news releases and
listservs, appearances at conferences, telephone hotlines, and publishing standardized lists of
keywords and terms to facilitate electronic searches. These strategies also tend to work better for
larger than for smaller enterprises because larger entities have the connections and resources to
take advantage of them. Developments in information technology may help improve the ability
of even under-resourced users to search, access, and understand agency documents. However,

7

See Section V.
We refer to entities with lesser resources as “small” or “smaller” entities and better-resourced entities as “large” or
“larger.” Throughout this report we use italics to indicate key findings and bold typeface to highlight key
recommendations.
9
We acknowledge an important qualification when we discuss “small” entities and “small businesses.” In many
cases entities that fall under official designations of “small,” such as certain “small businesses” under Small
Business Administration definitions can have 1,500 employees and over $40 million in annual receipts or $600
million in assets. The smallest “small business” cutoff is around $1 million in annual assets and 100 employees.
Small Bus. Admin., Table of Small Business Size Standards Matched to North American Industry Classification
System Codes (Aug. 19, 2019), https://www.sba.gov/sites/default/files/201908/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf. These businesses
are substantially larger than what we might think of as a “mom and pop” business or micro-businesses with fewer
than ten employees. Brian Headd, The Role of Microbusinesses in the Economy, SMALL BUS. ADMIN,
https://www.sba.gov/sites/default/files/Microbusinesses_in_the_Economy.pdf. Of course, even a micro-business
could be extremely well resourced, and a business with many employees does not necessarily have access to expert
consultants and lawyers.
8

7

interviewees expressed concern that some of these techniques may exacerbate inequity by
providing greater access to groups that are “plugged in” to the agency or have access to the
necessary technological expertise.
ii. Larger, Well-Resourced Entities Are Generally Satisfied.
In general, we found a high degree of satisfaction by larger enterprises and trade
associations regarding rulemakings as well as other regulatory notices that are published in the
Federal Register.10 Larger enterprises report that they have systems of intermediaries such as
trade associations, outside law firms and consultancies, as well as internal staff that track and
interpret developments that appear in the Federal Register. However, many potentially
significant changes in agency policy and interpretations, such as guidance documents,
enforcement policies, frequently asked questions (FAQs), and adjudicatory decisions, may not be
published in the Federal Register.11 Word of developments not published in the Federal Register
may sometimes be made available through other methods, such as posting on agency websites,
FAQs, emails and listservs, webinars, telephone hotlines, and appearances by agency personnel
at conferences and other events.
Many large enterprises also describe the importance of regular, face-to-face engagement
with agency staff. Our interviewees reported the most satisfaction with regulatory notice when

10

See Section VI.
Federal Register Act of 1935, 44 U.S.C. § 1505. In October 2019, then-President Trump issued an executive order
requiring agencies to provide notice of guidance documents on their websites. Executive Order on Promoting the
Rule of Law Through Improved Agency Guidance Documents, Executive Order 13,891, 84 Fed. Reg. 55,235
(Oct. 9, 2019) (“Each agency . . . shall establish or maintain on its website a single, searchable, indexed database
that contains or links to all guidance documents in effect . . . .”). Though the Executive Order made more agency
documents available, there was some criticism that it overtaxed agency resources and did not practically improve
notice because the quantity of information made available without filtering or synthesis was overwhelming. E.g.,
Susan Webb Yackee, Guidance on Regulatory Guidance: What the Government Needs to Know and Do to Engage
the Public, IMB Center for the Business of Government 18-19 (2021) available at
https://www.businessofgovernment.org/sites/default/files/Guidance%20on%20Regulatory%20Guidance.pdf.
President Biden rescinded the Trump Executive Order on the grounds that it unnecessarily restricted agency action.
Revocation of Certain Executive Orders Concerning Federal Regulation, Executive Order 13,922, 86 Fed.
Reg. 7,049 (Jan. 20, 2021). We discuss these issues in more detail infra at pp. 64-65.
11

8

they were in direct contact with agencies in advance of the regulatory changes. All these
strategies are important for providing notice, but our research suggests many are
disproportionately effective for larger entities, which tend to have more resources to devote to
monitoring changes in government regulation.
Although large enterprises are generally satisfied with their ability to get notice of
significant regulatory changes, and, indeed, may benefit competitively when information is less
accessible to potential competitors, larger enterprises nevertheless had concerns. There is
widespread concern about notice of regulatory changes that are not published in the Federal
Register. The Office of the Federal Register permits agencies to publish notice of a wide range of
agency activities. Thus, one of our proposed recommendations is that agencies expand the
“notices” they publish in the Federal Register beyond those required by the Federal Register
Act, Freedom of Information Act, and Administrative Procedure Act.12 For example, some
agencies publish short notices of availability in the Federal Register identifying by title and
subject documents that they have made available on their websites and providing links to those
documents.13 This technique may be particularly useful for guidance documents that the agency
chooses to make available to the public. See Section VI.A for a discussion of how agencies can
develop general notice plans that address guidance documents.
Another area of dissatisfaction that even larger enterprises express is that most agencies
leave it to each individual user to assemble various agency policy documents into a coherent
whole, including determining which agency policies and guidance have been superseded.14 Some

12

See Section VI.B.
E.g., Food and Drug Admin., Notice of Availability, Manufacture of Blood Components Using a Pathogen
Reduction Device in Blood Establishments: Questions and Answers; Guidance for Industry, 84 Fed. Reg. 60,834
(Nov. 4, 2021); Env’t Prot. Agency, Notice and Opportunity for Public Comment, Withdrawal of Two Answers to
Frequent Questions About Property Management Companies and Toxic Substances Control Act Lead-Based Paint
Renovation, Repair, and Painting Rule, 86 Fed. Reg. 60,812 (Nov. 4, 2021).
14
See, e.g., Rubin, supra note 3.
13

9

agencies, however, make manuals, digests, or other compilations of instructions available to
collect their current policies and interpretations into a more comprehensible form. For example,
the Environmental Protection Agency (EPA) makes a pesticide label review manual available
online that “compiles existing interpretations of statutory and regulatory provisions and reiterates
existing Agency policies.”15 The variety of agency practice in this area suggests that assembling
policies into coherent summaries, rather than imposing the cost of doing so on thousands of
individual users, might be an effective strategy in some situations. According to our
interviewees, summaries would not only ease the burdens on large enterprises but also help to
provide the notice more equitably. Larger and wealthier organizations typically have attorneys
who can summarize and explain agency policies, but smaller and under-resourced organizations
often do not. Agency summaries can, therefore, put individuals and smaller organizations on a
more level playing field. On the other hand, some agencies are concerned not only with the
resource burden, but also that any errors or omissions in such compilations might restrict the
agency’s flexibility in enforcement litigation.16

D. Agencies Should Regularly Re-Evaluate Their Methods for Providing Notice.
Enhancing notice and understanding of agency policies and positions can be helpful to
increase voluntary compliance with the agency’s policies, and some agencies have made
substantial investments in “getting the word out.”17 In view of recent advances in computer
technology, options for providing more effective notice are rapidly changing. For example, it

Pesticide Registration Label Review Manuel, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/pesticideregistration/label-review-manual. See also Walker & Wiener, supra note 3, at 44-45.
16
For example, EPA once operated a hotline for questions about the Resource Conservation and Recovery Act but
cancelled the program reportedly because of concerns that erroneous information provided on the hotline might have
an adverse effect on enforcement litigation. A related concern is that some may feel that it may not be appropriate
for agencies to interpret policy for private parties but should leave providing legal advice about government
requirements to private lawyers and consultants.
17
See Section VI.
15

10

may be possible for agencies to provide electronic means for potentially interested persons and
entities to identify narrow topics of interest on which they want to receive automated notice of
regulatory changes. There is, however, surprisingly little research on which tools and strategies
are most successful in providing effective notice.18 For this reason, we propose agencies
periodically re-evaluate the effectiveness of their techniques, as well as those used by other
agencies, to understand which are most effective and to pay particular attention to which
are most effective for reaching smaller and other underserved entities and individuals.
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, at the ACUS interagency roundtables in
August 2021 and March 2022, many agency officials agreed that comprehensive plans for giving
notice and evaluating which strategies are effective could be beneficial. We propose that
agencies should develop and periodically review agency policies and plans for providing
effective notice; to the extent feasible, agencies should also research which methods for
providing notice are most effective at reaching underserved groups and individuals.19

E.g., Michael Sant’Ambrogio & Glen Staszewski, Public Engagement with Agency Rulemaking 152 (Nov. 19,
2018) (report to the Admin. Conf. of the U.S.), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3615830. A preliminary review of political science and other
non-legal literature, as well as discussions with two scholars of political science and administrative governance, has
retuned no significant findings related to the best tools for notice of regulatory changes.
19
See Section VI.
18

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Table 2: Strategies for Agencies to Give Effective Notice of Significant Regulatory Changes

•

Notice Plans and Periodic Re-evaluation.

•

Expanding Coverage in the Federal Register

•

Digests and User Manuals Summarizing Agency Policies and Interpretations

•

Search Engines and Technological Strategies

•

Agency Websites

•

Agency Publications

•

Face-to-Face Engagement, Phone Calls, and Public Meetings

•

Directed Outreach and Providing Actual Notice to Intermediaries, Individuals, and
Very Small Entities

•

Making Guidance More Easily Accessible20

The next section previews our proposed recommendations to frame the issues that we
discuss in the balance of the report.

E. Proposed Recommendations
1. Assessing Strategies for Providing Effective Notice

A. Agencies should assess their strategies for providing notice in a way that allows entities
to access information of interest to them with only such difficulty and expense as is
reasonable under the circumstances (“effective notice”). Such assessment should focus on
persons and entities who actually desire notice or would desire notice if they knew about
the regulatory change in question (“potentially interested persons or entities”). Likewise,
assessments should apply to all “significant regulatory changes,” including not only

20

As Section III.B and Appendix I discuss, by law much guidance is supposed to be publicly available and/or
published in the Federal Register. Agencies do not always follow statutory and regulatory requirements to this effect
and guidance that is technically “available” is not always easily accessible.

12

changes that are legally binding but also those agency interpretations and statements of
policy that might reasonably be expected to change behavior. Such changes may include:
a. Notices of rulemaking, including advance notices of potential rulemaking, notices
of potential rulemaking, and final rules;
b. Agency guidance documents including enforcement policies and priorities;
c. Precedential adjudicatory decisions; and
d. Any other final agency action that might provide notice to regulated parties or
beneficiaries of a change in regulatory provisions.
B. In assessing how to improve their notice strategies, agencies should consider which
individuals or entities may be potentially interested parties and the particular needs of
each category of potentially interested persons or entities. Such parties may include:
a. Entities subject to regulatory requirements, including
1. Large, well-resourced entities;
2. Small or under-resourced entities;
3. Individuals; and
4. Entities not previously regulated.
b. Regulatory beneficiaries, including
1. Parties represented by legal entities;
2. Parties assisted by advocacy groups; and
3. Unrepresented and unassisted individuals.
c. Intermediary organizations, such as representative organizations, advocacy
groups, citizens organizations, and nonprofit organizations.

2. Developing Strategies for Providing Effective Notice

A. In assessing how to improve their notice strategies, agencies should evaluate which
specific notice practice(s) are appropriate for the potentially interested parties identified.
Some practices to consider may include:
a. Press releases and public service announcements;
b. Listservs and email notices to those who have indicated an interest in an area;

13

c. Posting printed notices where potentially interested individuals are likely to see
them, such as at docks for recreational boaters or in places of employment for
notices to workers;
d. Manuals, digests and other summaries of agency policies and interpretations.
e. Brief notices of availability published in the Federal Register with links to
documents on agency websites, including policy statements and interpretative
rules, posted on agency websites or otherwise made available.
f. Using hashtags, keywords and other methods to facilitate agency material
appearing on commercial search engines.
g. Public meetings and meeting with representatives of interested parties;
h. Outreach offices to underserved groups and interests.
i. Partnering with intermediary organizations.
j. Technological developments for making agency websites and notices in the
Federal Register easier to find and navigate, including standardizing search terms,
hashtags and indicating in agency publications and announcements what
categories persons and entities are most likely to be potentially interested.
B. In assessing which notice practice(s) to employ, agencies should consider the
effectiveness of those practices, particularly whether they:
a. Are cost effective;
b. Increase voluntary compliance and reduce the need for coercive enforcement;
c. Reach underserved groups, including small and micro-businesses, citizens groups,
advocacy groups, other regulatory beneficiaries, and those whose primary
language is not English;
d. Reduce transaction costs for regulated parties to assemble and interpret regulatory
requirements for themselves;
e. Increase participation in regulatory development;
f. Increase satisfaction and the perceived legitimacy of the agency’s regulation; and
g. Have proven effective when used by other agencies to provide actual notice.

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3. Assessment and Oversight
A. Agencies should develop notice plans for significant regulatory changes to document the
strategies employed for providing effective notice. Notice plans should:
h. Identify the regulatory change and what makes it significant;
i. Identify the potentially interested parties;
j. Set out the practices that the agency proposes to use to provide notice; and
k. Identify metrics to measure the effectiveness of the notice practices.
B. To improve planning and coordination, agencies should consider designating a new or
existing agency official or office as its Chief Outreach Officer, who shall:
a. Be responsible for evaluating the effectiveness of the agency’s notice plan;
b. Keep abreast of technological developments;
c. Evaluate practices of other agencies for providing notice for potential adoption;
and
d. Make recommendations for improving the agency’s practices and procedures to
better provide effective notice of significant regulatory changes to potentially
interested parties.
C. Agencies should retrospectively review which strategies are most effective at notifying
potentially interested parties. Agencies should:
a. Review and revise their notice plans to reflect which are most effective in practice
as well as which provide equitable access and do not favor certain groups over
others;
b. Obtain feedback from interested persons and entities regarding which methods for
providing notice they considered most effective; and
c. Participate in interagency notice working groups, or other collaborative forums, to
share experience, best practices, and information regarding the effectiveness, costeffectiveness and equity of various notice techniques and strategies.
i. The Administrative Conference of the United States should support
collaboration and information sharing about effective notice practice such
as by periodically convene interagency meetings at which agencies can

15

share information about their innovations, successes, and failures in
providing effective notice;

4. Public Disclosure and Transparency
Agencies should make public all elements of their notice-giving strategies, including:
a. Draft notice plans, prior to effectuation, with allowance for public comment;
b. Final notice plans;
c. Instructions for how potentially interested parties may opt-in to receive notices;
and
d. The results of retrospective reviews.

The next section describes the scope of the study and the key definitions. Section III explains the
importance of notice as a matter of law and policy. Section IV describes our methods. Section V
presents the findings of our research, Section VI offers strategies for giving notice. Section VII
summarizes our conclusions. Section VIII reiterates our proposed recommendations with more
detail.

II. Scope of the Study and Definitions
A. Scope
The goal of this project is to identify promising opportunities to improve notice of
significant regulatory changes. To that end, we discuss to what extent prevailing methods for
providing notice reach interested parties. We also consider methods in addition to the Federal
Register for providing notice, including websites, press releases, and intermediaries (e.g., trade
associations, trade press, lawyers, and regulatory consultants). We ask: Are some practices more
equitable than others, or do they only reach certain types of parties?

16

Other ACUS projects have considered important aspects of notice such as plain language
drafting,21 agency guidance,22 making inoperative guidance available,23 and use of social
media.24 Each of these prior projects has informed our work but covers different aspects of notice
than we address here. Our project is focused on the communication tools that agencies use to
provide information to potentially interested persons and entities rather than on the contents of
the notice. We recognize, of course, that to reach groups more remote from government, who
struggle most with obtaining notice, it is also essential to provide notice in a way that is
accessible to diverse recipients. These groups include, among others, those for whom English is
not a primary language and those with disabilities that make access to computers or written text
difficult or impossible.
Our interviews indicate that no “one size fits all” approach is likely to achieve agency
objectives, which will vary from agency to agency depending upon the purposes and audiences
receiving notice. Likewise, because the centerpiece of our inquiry is regulatory changes rather
than regulatory development, we mention but do not discuss in detail agency strategies for
engaging interested persons and entities in rule development. As described in Section V, a
number of our interview subjects noted the importance of “front end” engagement for “back end”
notice of changes. We therefore only briefly consider early engagement, as other ACUS projects
address public participation in regulatory development.25

21

Blake Emerson & Cheryl Blake, Plain Language Regulatory Drafting (Dec. 8, 2017) (Report to Admin. Conf. of
the U.S.).
22
Coglianese, supra note 3.
23
Admin. Conf. of the U.S., Recommendation 2021-7, Public Availability of Inoperative Agency Guidance
Documents (Dec. 16, 2021) available at https://www.acus.gov/recommendation/public-availability-inoperativeagency-guidance-documents.
24
Michael Herz, Using Social Media in Rulemaking: Possibilities and Barriers (Nov. 21, 2013) (Report to the
Admin. Conf. of the U.S.), available at
https://www.acus.gov/sites/default/files/documents/Herz%20Social%20Media%20Final%20Report.pdf.
25
Christopher Carrigan & Stuart Shapiro, Developing Regulatory Alternatives through Early Input (Jun. 4, 2021)
(report to the Admin Conf. of the U.S.); Sant’Ambrogio & Staszewski, supra note 18.

17

B. Definitions
i. Defining “Significant Regulatory Changes”
A variety of agency actions may affect the rights and duties of private entities. Not every
agency 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. For instance, on June 21, 2021, the Acting Assistant
Secretary of Labor for Occupational Safety and Health, James Frederick, gave a speech to the
On-Site Consultation Training Conference.26 In his remarks, Frederick discussed the 50th
Anniversary of the Occupational Safety and Health Administration (OSHA), how COVID-19 has
affected OSHA’s work, and the Biden Administration’s priorities in that area.27 The speech may
be useful to provide context, and OSHA has made it publicly available. However, the speech
does not make or announce any regulatory changes and therefore would not fall within the ambit
of this study.
The position or title of the official issuing a document is also important to determining
whether an agency action is a significant regulatory change. For example, a letter from OSHA to
a lab safety officer illustrates this point. In this letter, Patricia Clark, then the Director of
Compliance Programs, wrote that wearing gloves while handling unopened specimen containers
was “appropriate . . . although not necessarily required.”28 This was not formally a regulatory
action, and it does not purport to bind regulated parties, but it does give a strong indication of

26

James Frederick, Acting Assistant Sec. of Labor for Occupational Safety and Health, Speech to the On-Site
Consultation Training Conf., OCCUPATIONAL HEALTH & SAFETY ADMIN. (Jun. 21, 2021), available at
https://www.osha.gov/news/speeches/06212021.
27
Id.
28
Patricia K. Clark, Opinion Letter on Guidance on Wearing Gloves, OCCUPATIONAL SAFETY & HEALTH ADMIN.,
(Apr. 15, 1992), https://www.osha.gov/laws-regs/standardinterpretations/1992-04-15-0.

18

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 that the
statement establish a new legally binding policy. Lab safety officers are likely to begin
mandating that technicians wear gloves in order to avoid the risk of non-compliance with OSHA
requirements such as the “general duty” clause for employers to provide a safe workplace.
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.29
Regulatory changes in these categories are also significant for our purpose. However, in addition,
regulatory changes can be significant for narrower groups of potentially interested entities.
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 the following factors:

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. E.O. 12,866 § 3(f). 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). See generally a
recent Congressional Research Service report that includes a variety of definitions. CONG. RSCH. SERV., R43056,
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.
29

19

•

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; and

•

Does the change affect parties not previously subject to regulation by the agency and
therefore less likely to monitor its 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.30 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.” Deferred action is a use of prosecutorial discretion to defer
removal action against an individual for a certain period.”31 DAPA and DACA beneficiaries are

See Lead Renovation, Repair and Painting Program Rules, ENV’T PROT. AGENCY, https://www.epa.gov/lead/leadrenovation-repair-and-painting-program-rules.
31
Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. CITIZENSHIP AND IMMIGR. SERV.,
https://www.uscis.gov/DACA. 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 Administrative Procedure Act
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,
176-177, aff’d by an equally divided court, United States v. Texas, 136 S.Ct. 2271 (2016). The Trump
30

20

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.32 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.
These two criteria (potential consequences for interested persons and entities regardless
of economy-wide consequences, and horizontal regulatory expansion into new industries) help
define regulatory changes that are likely to be significant to some potentially interested persons
and entities.
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.33 The FDA established these action levels to determine whether
to seize specific lots of food that might be contaminated. 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. 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.34 In this case, despite the
non-binding 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

Administration attempted to rescind DACA, which the Supreme Court held, 5-4, was also a violation of the
Administrative Procedure Act. Dept. Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020).
32
Texas v. United States, 809 F.3d at 153.
33
818 F.2d 943, 948 (D.C. Cir. 1987).
34
Id. at 948.

21

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 in policy would fall within our
definition of “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.35 While regulated parties are obviously interested in changes in the
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.
ii. Defining “Potentially Interested Persons and Entities”
Not every person or entity will necessarily want notice of every government action.
Broad and frequent notice to everyone would be impossible as well as waste the time of 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 our
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 non-commercial

35

Id. at 945.

22

entities with recreational interests, such as hobbyists drone operators, motorcycle clubs, or
hunters and anglers.
iii. Defining “Notice”
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.36 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 pro-actively 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

36

For example, potentially interested entities may have difficulty accessing information because of language
barriers. Agencies should provide notice in languages potentially interested parties can understand, when doing so is
reasonable under all the circumstances. For example, if regulations change immigration policies that affect a large
number of people who only speak Spanish, agencies should consider providing notice in Spanish as well as English.
See generally John C. Sumberg, El Derecho de Avisio: Due Process and Bilingual Notice, 83 YALE L.J. 385 (1973).

23

that agency may affect them. In these cases, effective notice may require a different strategy for
providing notice.
“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 actually reads the
Federal Register entry.37
“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.

III. Why Notice?
Providing notice is both good policy and, in many circumstances, a legal requirement.
This section briefly describes the policy rationales that should cause agencies to re-examine their

37

44 U.S.C. § 1507.

24

notice practices and highlights several important legal considerations. In Appendix I we survey
in more detail key legal requirements for providing notice of significant regulatory changes.

A. Policy Reasons for Notice
i. Compliance
Effective notice can facilitate compliance. Simply put, only when regulated entities are
aware of agency rules can those parties make intentional efforts to comply.38 It seems probable
then that agencies with the 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.39
There is, however, anecdotal evidence. The Internal Revenue Service (IRS) is an example
of how notice practices can facilitate voluntary compliance. Among the people we interviewed,
several pointed to the IRS as a model of excellent notice practices. 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.
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.
As we discuss more in Section VI, the IRS’ techniques are diverse, well-staffed, and
integrated into the Service’s mission. For example, the IRS publishes its own, tailored, periodical

38

E.g., Edward F. Novak and 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.”)
39
Westlaw searches in the secondary sources database, and Google Scholar searches for “notice,” and either
“compliance” or “regulatory compliance” in the same paragraph returned no relevant results.

25

of regulatory changes called the Internal Revenue Bulletin. The Bulletin includes agency
documents along with pertinent external materials such as executive orders, legislation, and court
decisions. The Bulletin is not a synthesis of all existing requirements and policies, but it is a
clearinghouse for a wide array of pertinent material. The IRS also has an extensive outreach
program that focuses on getting notice to specific intermediaries like tax preparers and tax
attorneys. It relies on working groups to generate both outreach and input. Overarching all of this
is staff and budget dedicated specifically to outreach and a culture that integrates outreach into
almost every aspect of the Service’s work.
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.40 Second, the IRS
regulates over 250 million taxpayers.41 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 . . . .”42 With a staff dedicated specifically to outreach and notice, and regular,
formalized, notice practices, the IRS’ attention to notice of regulatory changes has paid off. It
may “be one of the world’s most efficient tax administrators,”43 and certainly several our
interview subjects praised the IRS’ methods, which we discuss further in sections V and VI of
this report.

40

E.g., Jan M. Rosen, Tips for Coping with 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.
41
The Agency, its Mission and Statutory Authority, INTERNAL REVENUE SERV., https://www.irs.gov/about-irs/theagency-its-mission-and-statutory-authority.
42
Id.
43
Id.

26

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.44 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. 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.45 For example, the National Highway Traffic
Safety Administration Authorization Act of 1991 provides a process for car manufacturers to
begin voluntary recalls when a car is manufactured with a defect or is otherwise not in
compliance with various standards.46 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.47 The NHTSA eventually released guidance approving, but circumscribing, the use of
these regional recalls.48 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.49 This example also illustrates that when an

44

E.g., E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490, 1494 (1992).
Id. at 1491, 1494. See also Nicholas R. Parrillo, Federal Agency Guidance: An Institutional Perspective 28
(Oct. 12, 2017) (Report to the Admin. Conf. of the U.S.), available at
https://www.acus.gov/sites/default/files/documents/parrillo-agency-guidance-final-report.pdf; Blake Emerson and
Ronald M. Levin, Agency Guidance Through Interpretive Rules: Research and Analysis 8 (May 28, 2019), available
at https://www.acus.gov/sites/default/files/documents/ACUS%20IR%20final%20report.5.28.2019.pdf.
46
49 U.S.C § 30,101 et. seq.
47
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 799 (D.C. Cir. 2006).
48
Id. at 802-4.
49
Id. at 811.
45

27

agency provides clear notice of its policies and expectations, voluntary compliance is a likely
consequence for at least some parties.
ii. Effective Notice Promotes Fairness and Legitimacy
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.
Although he was writing specifically about the notice and comment process, Professor
Parrillo describes three ways that effective notice can lead to greater legitimacy.50 First, effective
notice alerts interested persons and entities that agencies are attentive to their needs. 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.51 Third, effective notice will increase the number and
diversity of potentially interested persons and entities engaged in agency processes.52 Even if
these considerations apply with stronger force to pre-decisional processes in which an agency is
developing policy rather than providing notice of changes to policy, they can nevertheless inform
notice practice because each contributes to the public trust and democratic engagement in the
administrative process.

50

Parrillo, supra note 45, at 20 (Oct. 12, 2017).
Id.
52
Id.
51

28

B. Legal Requirements for Notice
In addition to these policy considerations, a number of legal requirements apply to giving
notice. The Due Process clause, Administrative Procedure Act, Freedom of Information Act,
E-Government Act of 1996, Federal Register Act, Small Business Regulatory Enforcement
Fairness Act Regulatory Flexibility Act, and Federal Records Act all impose requirements to
provide notice of significant regulatory changes in certain circumstances, which we describe in
more detail in this part and Appendix I. In addition, Congress has also legislated some programspecific notice requirements.53 However, overarching these specific legal requirements is the
larger constitutional principle that government should provide the most effective notice practical
under the circumstances and agencies are running significant legal risks if they do not do so.
i.

Constitutional Due Process

“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.”54 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.”55 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.”56 Thus, the Due Process Clause prohibits agencies from enforcing any
legally binding requirements against a party if that party did not have “fair notice,”57 which

53

See, e.g., the discussion of the statutory requirements that apply to FDA guidance in Section V and the discussion
of requirements that apply to the IRS in Appendix I.
54
F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).
55
U.S. CONST., Amendment V.
56
Gen. Elec. Co. v. Env’t Prot. Admin., 53 F.3d 1324, 1328 (D.C. Cir. 1995).
57
Id.

29

means either actual notice or an attempt to provide notice using the means most likely to be
effective that is practical under the circumstances.58
As a statutory matter, publication in the Federal Register establishes a presumption of
notice of a regulatory change.59 As a constitutional matter, however, publication alone may be
insufficient. In Mullane v. Central Hanover Bank & Trust, the Supreme Court held that
constructive notice via publication was insufficient in some circumstances because “[a]n
elementary and fundamental requirement of due process . . . is notice reasonably calculated [to
provide actual notice], under all the circumstances . . . .” 60
Mullane stands for the proposition that compliance with statutory and regulatory
requirements that direct how agencies give notice may not always be sufficient to comply with
due process requirements. In that case, the 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.61
Mullane did not address changes in administrative regulation directly, but at least one
court has applied its requirement that notice be “reasonably calculated [to provide actual notice]

58

Id. at 1329 citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
44 U.S.C. § 1507.
60
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
61
339 U.S. at 314-15 (emphasis supplied; citations omitted).
59

30

under all the circumstances” in a regulatory context.62 In Higashi v. United States, the Federal
Circuit applied the Mullane test but found the government satisfied it when repealing an
executive order. The court relied not only on publication in the Federal Register but also “media
dissemination of the news” that was “reasonably likely to reach the many individuals who should
have been informed.”63 However, because the Mullane inquiry depends upon what is practical
under all the circumstances, agencies run a serious risk that courts may hold agency procedures
for providing notice unconstitutional as newer technologies become practical to provide notice
through devices such as emails, social media and websites that did not exist in 1936 when the
Federal Register was created.64
Due process principles also apply when significant regulatory changes occur through
policy statements, interpretative rules, and other agency actions that are not published in the
Federal Register. For these types of policy changes that are typically made without notice and
comment or publication, due process doctrine, as interpreted by the lower courts, may require
agencies to have given effective notice before the agency may enforce the requirements because
a party “cannot be found out of compliance [if the agency] failed to give fair notice of what is
required.”65 The Supreme Court has not ruled directly on this issue,66 but Supreme Court
decisions applying the Due Process clause outside of the administrative context require effective
notice to the extent that it is reasonably practical to provide it and therefore in our judgment

62

Higashi v. United States, 225 F.3d 1343, 1348-1349 (Fed. Cir. 2000) (holding that Mullane applies in the case of
recission of an executive order but finding, as a factual matter, that the agency provided adequate notice under the
Mullane standard).
63
Id.
64
Technological changes are not the only circumstances that may affect what due process requires. For example, a
law journal note argues that if an agency knows that interested parties are not English-speaking but provides legal
notices only in English, due process as interpreted by Mullane may require translation into their native language.
John C. Sumberg, El Derecho de Avisio: Due Process and Bilingual Notice, 83 YALE L.J. 385 (1973).
65
United States v. Chrysler Corp., 158 F.3d 1350, 1354 (D.C. Cir. 1998).
66
But see, Karem v. Trump, 960 F.3d 656, 664-665 (D.C. Cir. 2020) (summarizing and quoting several instances in
which the Supreme Court has touched on the issue).

31

agencies are running a significant risk if they do not provide the most effective notice practical
under the circumstances.67
ii.

Statutes

The Freedom of Information Act (FOIA) requires that agencies publish legislative rules,
certain guidance documents, and other significant regulatory materials in the Federal Register
and on agency websites.68 Case law on this subject is limited.69 Some courts have interpreted
FOIA as providing significant exceptions to the publication requirement, but the decisions have
come from lower courts and there is a risk that if presented with the question, the Supreme Court
could demand stricter adherence to the publication requirements.70 This is important because the
language of the statute mandates that agencies “publish in the Federal Register . . . statements of
general policy or interpretations of general applicability.”71 However, this apparently broad
requirement is more honored in the breach than in the observance. In the words of Kenneth Culp
Davis, “many, many federal agencies have failed to comply with [FOIA’s publication
requirements] yet the requirements are clear.”72
Other statutes also apply to agency procedures for giving notice. The E-Government Act
of 2002 and the Federal Records Act of 1950 each direct agencies to establish processes for

67

Mullane, 339 U.S. 306.
5 U.S.C § 552(a). FOIA requires that agencies publish rules and guidance documents of “general applicability” in
the Federal Register. 5 U.S.C. § 552(a)(1). The Act then directs that agencies shall post documents on their websites
if the documents are not published in the Federal Register. 5 U.S.C. § 552(a)(2). It is not clear whether the second
provision for website publication allows agencies to choose between forms of publication or is meant as a catchall
for documents that the first provision does not require agencies to publish in the Federal Register. See, e.g.,
Anderson v. Butz, 550 F.2d 459 (9th Cir. 1977) (holding that agency staff may avoid Federal Register publication if
they publish documents in a reading room). Note that this case interpreted the provision prior to the 1996
amendments that added “electronic format,” i.e., “website” publication, to FOIA. But see Appalachian Power v.
Train, 566 F.2d 451 (4th Cir. 1977) (“[R]easonable availability is not a substitute for publication; it is one of two
conjunctive requirements . . . .”).
69
We are not aware of any Supreme Court decision on this point.
70
As the prior part explains, there is also a possibility that under the right circumstances the Supreme Court would
find that even strict adherence to the publication requirement would fall short of due process demands.
71
5 U.S.C. § 552(a)(1)(D).
72
KENNETH C. DAVIS, ADMINISTRATIVE LAW OF THE 1970S 75 (1976).
68

32

making documents available, though both largely eschew requirements for affirmative outreach
and publication.73 The Regulatory Flexibility Act directs agencies to conduct and publish, in
certain circumstances, a “regulatory flexibility analysis.”74 The analysis does summarize the
content of a regulation, though the purpose is to guide agency decisionmaking rather than to
provide public notice. The Small Business Regulatory Enforcement Fairness Act (SBREFA)
requires that agencies develop “small entity compliance guides.”75 The guides are meant to
summarize regulatory requirements in plain language for small businesses.76
We analyze these legal requirements in more detail in Appendix I.77 In sum, a number of
broad constitutional and statutory provisions would appear to require agencies to provide notice
of agency policies and interpretations and agencies may be running significant legal risks if they
do not comply.

IV. Methods
Our methods for this research involved three parts. First, we limited the scope of our
project and defined key terms. Next, we gathered data on two parallel tracks. With the help of
law-student research assistants, we conducted desktop research to search for any literature,
including ACUS reports, that addresses the process of agencies providing notice of regulatory
changes. This desktop research likewise surveyed case law, statutes, and regulations with two
distinct purposes. First, we wanted to understand the current legal requirements for notice.

73

44 U.S.C. § 3501 note; 44 U.S.C. § 3101; 44 U.S.C. § 3102(2).
5 U.S.C. § 603(a).
75
5 U.S.C. § 601 note. We discuss these guides further in Section VI as well as Appendix I.
76
5 U.S.C. § 601 note.
77
In fact, the list of trans-substantive statutes with provisions related to notice goes on beyond this sampling. We
focus on these statutes but recognize that the Small Business Regulatory Enforcement Fairness Act, Regulatory
Flexibility Act, Unfunded Mandates Reform Act, Unified Regulatory Agenda, and the Paperwork Reduction Act all
have some impact how agencies provide notice of regulatory changes. This further emphasizes the point that notice
deserves careful attention lest agencies risk running afoul of legal requirements.
74

33

Second, we wanted to find useful examples of notice practices that go beyond legal
requirements. In parallel with this desktop research, we conducted interviews or workshops with
60 individuals. We identified interviewees in several ways. We conducted internet searches for
contacts that could supplement the perspectives that were already represented in our personal
networks. We made connections through ACUS and our own contacts. We also asked each
interviewee if they would recommend that we speak to anyone else and then followed-up on
those recommendations. We spoke with:
•

Current and former agency personnel, including personnel from single-industry focused
agencies, and agencies with more general focus.78 This includes 19 agencies of which six
are “independent” agencies;79

•

Four trade associations, one generalist association representing businesses of all sizes but
focused on larger businesses, two generalist associations focused on small businesses,
and one industry-specific trade association representing mostly small businesses;80

•

One micro-business owner;

•

One labor union lawyer who works with large and small unions;

•

Eight public-interest nongovernmental organizations (NGOs), including one largenational NGO, one medium-regional NGO, two small, national NGOs, five communityoriented NGOs, an international humanitarian organization, a lawyer who represents both

78

By single-industry agencies we mean, for example, the Federal Aviation Administration which deals with the
aerospace industry, which even broadly defined is narrow compared to, for example, the Environmental Protection
Agency or the Occupational Safety and Health Administration.
79
For the purposes of our study we have not considered whether independent agencies and executive departments
should take different approaches to giving notice of significant regulatory changes.
80
None of the associations, including those representing small businesses, are primarily focused on “microbusinesses” or “mom and pop” businesses.

34

small community groups and small and medium environmental justice organizations, and
another lawyer who represents environmental justice organizations;
•

Two state government officials from state environmental agencies;

•

Two people who are members of non-commercial, regulated organizations, including one
who is a member of drone clubs and another who is part of canine rescue organizations;

•

Three private practitioners who have represented regulated entities, one of whom
represented both private industry and regulatory beneficiaries and at least two of whom
represented small as well as large and medium-sized regulated companies;

•

Three law, governance, and political science scholars, including an expert in European
administrative law, and two American scholars, one specializing in administrative law
and social movements, and another in administrative politics; and

•

A scholar and expert on how government uses technology, with a focus on artificial
intelligence.
Our interviews were robust and diverse, although we acknowledge that they could not

include all the perspectives, strategies, and approaches to regulatory notice. Nevertheless, we
think our investigation identified a wide range of concerns and promising opportunities for
agencies to improve notice of significant regulatory changes.
Rather than conducting structured interviews, we spurred conversations with each
interviewee based on a list of topics. We explained that nothing the subjects said would be taken
as an official or attributable statement but that we would use the content in our report. We further
assured that we would not identify any of the subjects by name or entity and would only refer in
generalities such as “lawyer for a large public interest group” or “former agency official.”

35

V. Findings
Our overarching finding is that multiple opportunities exist to improve agency practices
for providing notice of significant regulatory changes. In particular, we found that larger entities
are more satisfied with current notice practices than smaller, lesser-resourced ones.
Congressional efforts to protect small businesses through enhanced notice requirements such as
SBREFA’s mandate for “Small Entity Compliance Guides”81 have only partially succeeded, and
those efforts do not necessarily benefit non-business small entities. For example, as our
interviews have shown, 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.
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. 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. Interviewees
further raised concerns about “horizontal” regulatory expansion where entities are subject to new
regulatory areas in which they do not have prior experience.

A. Smaller Entities Struggle to Obtain Effective Notice
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,

81

Sec. 212(a), Pub.L.104-121, 110 STAT. 858 (1996).

36

smaller entities typically do not have in-house regulatory affairs staff to track the Federal
Register or engage in-person with agencies or the resources to hire outside experts. At the
smallest end of the spectrum, “mom-and-pop” or micro-businesses82 and small community
groups are most likely to have small staffs and limited infrastructure for tracking regulatory
changes. As we discuss further in Section VI.C, although Congress has made efforts to improve
notice to small businesses, there is an opportunity for Congress and agencies to do more,
particularly regarding smaller entities that are not businesses.
Smaller entities often rely on intermediary organizations to get notice of significant
regulatory changes. 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
micro-businesses, are not members of intermediary organizations.83 Representatives from trade
associations, labor unions, and agencies all described the critical role for these 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. It is hard to overstate how important intermediary
groups seem to be for many potentially interested parties. Many businesses participate in
multiple trade associations and access agency notices for different aspects of their businesses in
this way. Groups like the U.S. Chamber of Commerce, “the world’s largest business

82

The Small Business Administration defines micro-businesses as those with fewer than 10 employees. Headd,
supra note 9.
83
Notably, 70 percent of all businesses are on the small end of micro-businesses, having four or fewer employees.
Counts by Company Size, NORTH AMERICAN INDUS. CLASSIFICATION SYS. ASS’N, https://www.naics.com/businesslists/counts-by-company-size/. According to our interviews, the smallest entities are least likely to be engaged with
intermediary organizations.

37

organization,”84 cover almost every agency, but they tend to prioritize major issues that affect
many of their members.
As one interviewee described it, 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.85 State governments also participate in intermediary
organizations. 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. Just as with the private sector, these intermediaries provide technical advice, and an
efficient, two-way, channel to the EPA.
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. They are often not members of such groups and are therefore left to their own
devices for obtaining notice of significant regulatory changes that may affect them.
One small-business representative said that taxes are the most significant regulatory
burden for most small businesses.86 Our subjects consistently praised the IRS’ notice practices.
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. According to one
of our interview subjects, many small businesses rely on these private companies to keep abreast

84

About Us, U.S. CHAMBER OF COM, https://www.uschamber.com/about.
In some cases, agencies can and do provide resources of this nature. In particular, the SBREFA requires Small
Business Compliance guides. We discuss these strategies in more detail in Section VI.C.
86
Though certainly this does not mitigate the overarching problem that the smallest businesses struggle to get notice
of significant regulatory changes other than tax changes.
85

38

of changes to the tax rules and to properly complete the business’ taxes with those changes in
mind. 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.87
One area where we learned that intermediaries have not been as active is in informing
small environmental advocacy organizations about policy changes. In many areas, especially
environmental policy, there are large and medium-sized public interest NGOs that might serve as
intermediaries. However, in our conversations, we learned these larger NGOs do not always
serve the intermediary function for smaller entities. On the other hand, 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. We
spoke with representatives of immigrant-support NGOs, for instance, who said almost all their
information about regulatory changes comes through networks of intermediaries.
Several interviewees confirmed that advocacy-focused NGOs do not play more of an
intermediary role because their mission is, often, to advocate for policy change rather than
provide direct services. Service-focused NGOs, on the other hand, rely on information about the
current state of the law to support and guide the individuals and communities with which they
work. Given the important role of intermediary organizations, in Section VI.I 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,88 but our interviews indicate that these efforts have been only partially effective. For

87

Section VI.I includes more detailed recommendations about how agencies can interact with intermediary
organizations to provide effective notice.
88
See the discussion of SBREFA and other small-business-focused legislation in Section III, VI, and Appendix I.

39

instance, the Small Entity Compliance Guides introduced in Section III, and discussed in further
detail below, are designed to provide regulatory notice and guidance to small entities. 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. 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. Some agencies have similarly narrowed the
scope of their outreach programs to assist small entities by focusing primarily on small
businesses. EPA, for example, has numerous resources for “small businesses” but noncommercial entities seem to get less attention.89 Importantly, not one of the subjects we
interviewed mentioned these small entity guides unprompted, suggesting that they are not a
prominent source of notice and perhaps agencies should do more to publicize them. Finally,
although SBREFA permits agencies to publish guides that address multiple related rules, in
practice the guides generally focus on only a single rule. 90 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. These regimes are complex, evolve over time, and not fully captured in
stand-alone rules published in the Federal Register.
There are nuances to the dissatisfaction among less-resourced, smaller entities, but one
over-arching issue sums up their concerns: In the words of Reeve Bull, “The [small] firm’s much
larger competitors have to comply with the same rules (and maybe even some additional rules,

89
90

Resources for Small Businesses, ENV’T PROT. AGENCY, https://www.epa.gov/resources-small-businesses.
Sec. 212(a), Pub.L.104-121, 110 Stat. 858 (1996).

40

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.”91

B. Larger Entities
While not entirely satisfied with existing notice practices, larger entities such as trade
associations, unions, NGOs, and attorneys representing private businesses were generally
satisfied with most aspects of current agency practices for providing notice. 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. 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. 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. 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. 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 their expertise
and obtain business. 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.
However, even larger entities did express some concerns, particularly about the difficulty of

Reeve T. Bull, How to Account for Small Business Interests in President Biden’s Modernizing Regulatory Review
Initiative (Sept. 29, 2021), https://www.brookings.edu/blog/up-front/2021/09/29/how-to-account-for-small-businessinterests-in-president-bidens-modernizing-regulatory-review-initiative/.
91

41

synthesizing dispersed regulatory information and gaining access to material that is not published
in the Federal Register.
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. 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 the large volume of information that appears in the Federal Register.92 Tracking the
Federal Register requires not only knowledge and resources, but regular internet and computer
access. Developments in technology, such as improvement in search engines and artificial
intelligence, may hold promise for narrowing these gaps in obtaining notice. We discuss later
measures that agencies can take to facilitate improving access to agency documents by smaller
entities and individuals.
According to our interviews, personal contacts at the agency are also quite effective for
larger entities but much harder to access for smaller organizations. According to a lawyer for a
large public interest NGO, under the current system, “personal contacts are the best way to get
notice.” Trade association and private lawyers echoed this statement. Trade group
representatives especially emphasize this point, explaining that having personal connections with
agency personnel serve a variety of purposes.
First, personal connections allow interested persons and entities to call or email an
agency official and ask about forthcoming changes. In some cases, interview subjects reported
having regular calls with agency staff to check-in on various projects.

92

We likewise recognize, pursuant to the discussion of legal requirements in Section III.B and Appendix I, that in
many cases agencies are failing to publish material in the Federal Register even where FOIA apparently requires
such publication.

42

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. 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. However, the unequal access by well-connected organizations through private
calls and meetings can contribute to the perception or reality that agencies have been “captured”
by the interest they are supposed to regulate.93 In contrast to agency capture, some interviewees
said personal connections are impossible because there is too little trust between regulated
individuals and government actors. In areas like immigration, the threat of arrest or deportation
hinders personal connections. When we described programs like the OSHA compliance
consultation program, in which consultation staff are “walled-off” from enforcement staff,94
these interviewees were skeptical because the lack of trust ran too deep for a bifurcated
arrangement of this nature to be effective in their area.
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. Instead, the biggest problem was getting “front end” notice when
agencies begin the process of deliberating on regulatory changes. ACUS has addressed
participation in regulatory development elsewhere,95 but our interviewees frequently reminded us
that when interested parties participate in rule development they will almost necessarily know

93

See generally Will Kenton, Regulatory Capture, https://www.investopedia.com/terms/r/regulatory-capture.asp.
We describe this program further in Section VI.H.
95
E.g., Carrigan & Shapiro, supra note 25; Sant’Ambrogio & Staszewski, supra note 18.
94

43

about regulatory changes because they are aware those changes from the beginning. 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.96 In SBREFA, Congress attempted to promote similar personal connections for
smaller entities by directing agencies to “answer inquiries by small entities . . . .”97 Yet our
conversations suggest this has not been a complete success. As we discuss more in Section VI,
there are some promising strategies such as the use of webinars, user manuals, and notice
planning that specifically targets smaller entities.
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. Their complaints took two forms.
First, there is more difficulty in accessing information that is not published in the Federal
Register. Second, this alternative regulatory material, when available, may require sophisticated
analysis and synthesis. 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,98 poses

96

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 91.
97
Sec. 213, Pub.L.104-121, 110 Stat. 858 (1996).
98
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 and 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

44

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. 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.”99 “Digests of agency precedents,” they continue, “are
especially useful . . . . Some agencies could make more extensive use of them.”100
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 a single issue area and potentially interested persons and entities must collect
and analyze information from multiple agencies. One interviewee explained the struggle
LGBTQ+ (lesbian, gay, bisexual, transgender, queer) organizations encountered 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.101 On the other hand, some

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.
99
Walker & Wiener, supra note 3, at 44.
100
Id.
101
E.g., Selena Simmons-Duffin, ‘Whiplash’ of LGBTQ Protections and Rights, From Obama to Trump, NAT’L.
PUB. RADIO (Mar. 2, 2020) available at https://www.npr.org/sections/health-shots/2020/03/02/804873211/whiplashof-lgbtq-protections-and-rights-from-obama-to-trump (describing policy changes in the Department of Education,
military, and the DOJ).

45

agencies have collaborated on joint manuals, such as the wetland delineation manual developed
jointly by EPA and the Army Corps of Engineers.
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.
This report earlier described EPA’s 2008 lead repair and renovation rules as an example of a
horizontal expansion that brought thousands of small contractors and landlords within EPA’s
regulatory scope for the first time.102 Another example that one interviewee described is a
possible new rule from the Financial Crimes Enforcement Network expanding the concept of
“beneficial ownership.”103 This rule would require businesses to report the natural persons who
profit from the business in order to prevent terrorists and other criminals from laundering money.
The rule, however, would cover almost every business in the United States and not only financial
institutions.104 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.
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. Several interviewees explained that
commercial media is their best source of information, which we discuss further in Section VI.G.

102

Section II.B.ii.
Financial Crimes Enforcement Network, Advance Notice of Proposed Rulemaking, 86 Fed. Reg. 17,557 (Apr. 5,
2021).
104
Id. at 17,558.
103

46

Elsewhere in Section VI 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.

VI. Strategies for Effective Notice of Significant Regulatory Changes
This section 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. 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. 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.
Agencies should develop plans for giving effective notice. They should have a
nuanced approach, gather data on effectiveness, and regularly re-evaluate which tools they
are using. This section begins by describing the process and contents of agency notice plans. It
then identifies tools for providing effective notice of significant regulatory changes that have
been used successfully by other agencies which agencies may wish to consider as parts of their
notice plan.

47

A. Agency Notice Planning and Evaluations
Agencies should create general notice plans tailored to their audience and mission
and study the effectiveness of various mechanisms for providing notice. General, written
notice plans should consider matters such as:
•

Targeted outreach to different categories of entities and intermediaries;

•

How the agency plans to deal with different types of regulatory changes from
different origins (i.e., advanced notices of proposed rulemaking, proposed and
final rules, guidance, adjudications, enforcement or non-enforcement decisions,
memos, etc.);

•

The costs of different strategies for giving notice; and

•

How the agency will gather data about the efficacy of various strategies and
reevaluate their existing strategies based on that data.

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. 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. 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.105

105

Throughout Section VI we discuss several techniques agencies have used to successfully reach small entities.

48

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. 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. Our research reveals that there is too little information about the
effectiveness of different notice strategies. Because there is so little data about the effectiveness
and cost of different strategies, notice plans can help build more quantitative knowledge to
support agency decision-making in the future. Thus, each notice plan should establish
processes for gathering data and evaluating the effectiveness of agency strategies for
providing notice. ACUS may wish to revisit this subject in several years to identify agency best
practices for developing and re-evaluating notice plans. We also recommend periodic agency
roundtables to share information about what works best. ACUS may be an appropriate host.
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. Outreach staff are in the best position to make
material useable and publicly available. 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.106 There was no consensus that codifying notice plans in a legislative rule

E.g., Recommendation 2020-1, Rules on Rulemaking (Dec. 16, 2020) (Addressing rules that “set[] forth the
policies and procedures [agencies] will follow when conducting informal rulemakings . . .”).
106

49

was desirable, but there was a consensus that regardless, notice plans should be open to public
comment and easily accessible on agency websites.
Some of the people we interviewed suggested that agencies should appoint chief outreach
offices or officers to help develop and implement notice plans. The Federal Regulatory
Commission (FERC) is launching an Office of Public Participation that would perform this
function, among others.107 Other agencies expressed concerns, including that staff were already
overburdened. We think 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. 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.

B. Expanding Coverage in the Federal Register
The Office of the Federal Register (OFR) is the most important single channel for
providing notice for most agencies.108 Most people to whom we spoke felt the Federal Register

About OPP, Office of Public Participation, Fed. Trade Comm’n., available at https://www.ferc.gov/OPP.
ACUS has already undertaken significant research and issued recommendations on public access to regulatory
materials through Regulations.gov and the Federal Docket Management System. Admin. Conf. of the U.S.,
Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets (Dec. 13, 2018); Todd
Rubin, Regulations.gov and the Federal Docket Management System (Dec. 3, 2018) (Report to the Admin. Conf. of
the U.S.), available at
https://www.acus.gov/sites/default/files/documents/Proposed%20Recommendation%20for%20Plenary%20%28Reg
ulations.gov%29%20OFFICIAL%20REDLINE%20FOR%20PACKET%2012%2010%202018_0.pdf. This is
outside the scope of this research but given the importance of the OFR and the Federal Register, ACUS may
107
108

50

was an effective form of notice for those who have the capacity to track Federal Register
publications. For individuals, non-English speakers, and the smallest organizations, the Federal
Register is less effective. Many individuals are unaware of the publication. Those without
sufficient computer access have trouble using FederalRegister.gov on a cell phone. The smallest
organizations do not have the resources to regularly review the Federal Register. These
shortcomings, as well as the potential constitutional concerns we describe in Section III.B.i and
Appendix I, 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.
i. Notices of Availability
The Federal Register Act allows the OFR to publish a wide range of documents in the
Federal Register.109 This includes proposed and final rules, presidential proclamations, and
guidance documents. The OFR sorts agency submissions into three categories: proposed rules;
rules and regulations; and notices of availability. 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. 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. Of course, there is a cost to publishing in the Federal Register, including notices of

continue to address ways in which agencies and potentially interested parties use systems designed to make
regulatory material more accessible, such as Regulations.gov, Federalregister.gov, and Reginfo.gov. As one of our
interview subjects complained, a member of the public seeking information on a rulemaking may find certain
information on Federalregister.gov. The individual may not find the same rulemaking docket available on
Regulations.gov, or if they did, they might find different information on each website. See also Admin. Conf. of the
U.S., Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets (Dec. 13, 2018) at 6-9.
109
44 U.S.C. § 1505.

51

availability. Agencies currently pay $450 per Word document page. Thus, the costs for
increasing use of notices of availability of information posted on agency websites would be
relatively modest. Agency notice plans should consider, and re-evaluate 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.
Based on our interviews, it is our opinion that agencies should use the Federal Register
to publish notices of availability for material such as significant guidance documents. The
agencies should publish the full text of these documents on their websites and provide a
link in the Federal Register notice. Notices of availability will provide clear direction on
how to find important documents and allow agencies to give useful summaries. Finally, it
helps 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.110 Agencies should balance the interest in
providing effective notice of significant regulatory changes against the costs and risks of creating
information overload.111

110

CMS Small Entity Compliance Guides, CTR. FOR MEDICARE AND MEDICAID SERV.,
https://www.cms.gov/Regulations-and-Guidance/Guidance/SmallEntity.
111
Indeed, the possibility of information overload and notice becoming ineffective if it reaches the point of “spam”
is an overarching concern in developing recommendations for improving notice of significant regulatory changes.

52

ii. Improving Indexing of Federal Register Entries for Searchability
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. 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.112 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 that agencies are largely
unaware of the indexing process. When agencies work together they can share information, so
interagency collaboration on notice practices might generate more awareness of this indexing
service.
Although it is not a current practice, our conversations suggested that OFR might be able
to expand indexing so it covers not only keywords for a rule, but also a list of potentially
interested entities. This approach would allow potentially interested persons and entities to
search a listing for their area of interest or expertise. However, we recognize, as a countervailing
consideration, the potential effect on enforcement litigation if a regulated party were not listed.
Currently, interested entities must determine which agencies are most likely to undertake
relevant regulatory action and review notices from those agencies. 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.

112

Thesaurus of Indexing Terms, OFF. OF THE FED. REG., HTTPS://WWW.ARCHIVES.GOV/FEDERAL-

REGISTER/CFR/THESAURUS.HTML.

53

iii. Improving Technology in the Office of the Federal Register
The OFR also provides technical tools for improving notice of significant regulatory
changes. OFR operates a program called MyFR, which allows personal account management
within the electronic Federal Register.113 This allows users to conduct more sophisticated
searches, to save those searches in their own account, and, perhaps most importantly, to establish
their own set of keywords and then receive automated notices whenever a document is published
in the Federal Register using those keywords. MyFR is open to any user and provides a variety
of services, but it is dependent 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 non-profit, was very positive about the value of MyFR and described it as her primary
tool for gathering information from the Federal Register. This suggests that MyFR may be
underutilized and agencies as well as the OFR should consider how they might 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.114 Broadly
speaking, eCFR is an electronic version of the Code of Federal Regulations (CFR) that allows for
easy browsing, searching, and navigability. eCFR also provides valuable innovations related to
notice. For instance, eCFR allows users to easily identify recently updated regulatory text,
compare current and prior versions of regulations, and link between related CFR, Federal

113

Subscription Options and Managing Your Subscriptions, OFF. OF THE FED. REG.,
https://www.federalregister.gov/reader-aids/using-federalregister-gov/subscription-options-and-managing-yoursubscriptions.
114
eCFR, OFF. OF THE FED. REG., https://www.ecfr.gov/.

54

Register, and United States Code content.115 As with the Federal Register, eCFR also allows
users to create MyCFR accounts and create personalized notifications of updates.116
All of these technological services are valuable in their own right because they make it
easier for interested persons and entities to access information about regulatory changes. There
are, however, two shortcomings.117 First, interested entities must know about these tools before
they can use them. Second, eCFR and MyCFR only provide information about material that is
codified in the CFR. The CFR does not include guidance documents, advance notices of
proposed rulemaking, information requests, and other important material that is not the final
version of “permanent and general” regulations published in the Federal Register.118
OFR also provides an “Application Programming Interface” (API) to any user who wants
to gather information from the electronic Federal Register.119 An API allows a software agent to
access and collect data hosted in the database or from a wider data repository. 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

115

Getting Started, OFF. OF THE FED. REG., https://www.ecfr.gov/reader-aids/using-ecfr/getting-started; see also
Email from John Hyrum Martinez, Director of Publications and Services Division, Off. of the Fed. Reg., Sept. 23,
2021 (on file with authors).
116
OFF. OF THE FED. REG., supra note 115; see also Email from John Hyrum Martinez, Director of Publications and
Services Division, Office of the Federal Register, Sept. 23, 2021 (on file with authors).
117
A third shortcoming, though outside the scope of this report, is also worth noting. An interviewee at a litigationfocused NGO commented that one problem with the eCFR is that it 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.
118
Help: Code of Federal Regulations, OFF. OF THE FED. REG., https://www.govinfo.gov/help/cfr. This raises two
questions for future ACUS research: First, because many significant regulatory changes are not published in the
Federal Register, can OFR’s tools expand to include material not codified in the Code of Federal Regulations? This
question could focus especially on material published on agency websites or published in the Federal Register as a
notice of availability rather than a legislative rule. Second, are statutory changes necessary, or appropriate, to expand
the scope of OFR’s technology and other tools for providing effective notice?
119
FR API Documentation, OFF. OF THE FED. REG.,
https://www.federalregister.gov/developers/documentation/api/v1.

55

and search for relevant notices. OFR opens its data to this flexible tool, which might be useable
for more technically savvy interested persons and entities but not for all users. Yet, the
requirement for some tech-savvy also makes this a somewhat exclusionary tool for providing
notice.
Agencies should experiment with developing handbooks—and perhaps even supporting
training and publicity—to make these types of advanced technological tools more widely
available.

C. Digests and User Manuals
In our opinion, agencies should consider creating agency-authored user manuals and
digests that synthesize and summarize regulatory regimes.120 One interviewee from within the
government said that notice is particularly a problem for “docket agencies.” The interviewee
used the term “docket agencies” to describe agencies that make policy primarily through
adjudications. In these agencies, adjudicatory policymaking is piecemeal, making it is more
difficult to follow. For instance, a person with whom we spoke noted that at least one
“independent” board that makes policy through adjudication would benefit from more synthesis
of its policy. Private companies produce “deskbooks” summarizing policy and practice in
different agencies. The deskbooks are costly, slow to update, and carry less weight because they
do not come from the agency. 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.

120

Walker & Wiener, supra note 3, at 44.

56

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. One of these interviewees explicitly said that interagency summaries describing related
regulatory changes would be very helpful.121
SBREFA requires Small Entity Compliance Guides.122 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.”123
As noted earlier, 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. 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. 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. The guides are focused only on businesses, which

For further details on “shared regulatory spaces” in which multiple agencies regulate the same subjects, see
note 98.
122
5 U.S.C § 601 note 212(a).
123
Pub. L. No. 110-28 (May 27, 2007).
121

57

are not the only relevant small entities when it comes to notice. The guides typically do not
synthesize multiple developments,124 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,125 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.
The EPA Pesticide Registration Label Review Manual is a good example of synthesizing
multiple regulatory developments into a coherent whole.126 The manual compiles existing law
and interpretations in 18 chapters which include references to primary documents, making this
diffuse regime accessible and searchable all in one place. 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. One interviewee described it

124

Though SBREFA allows agencies to publish guides covering multiple rules. Sec. 212(a), Pub.L.104-121,
110 Stat. 858 (1996).
125
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. Trade Comm’n., 400 F.3d 1352 (Fed. Cir. 2005).
126
Pesticide Registration Label Review Manuel, ENV. PROT. AGENCY, https://www.epa.gov/pesticideregistration/label-review-manual.

58

as “a great explainer of the law.” 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.
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.”127 The Patent
and Trademark Office has developed the Trademark Manual of Examining Procedure.128
According to PTO, “The 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.”129 A notable feature of 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 2005.130
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

127

CTR. FOR MEDICARE AND MEDICAID SERV., supra note 110.
Trademark Manual of Examining Procedure, U.S. PAT. AND TRADEMARK OFF., (July 2021),
https://tmep.uspto.gov/RDMS/TMEP/current.
129
Id.
130
Trademark Manual of Examining Procedure – Files and Archives, U.S. PAT. AND TRADEMARK OFF.,
https://www.uspto.gov/trademarks/guides-and-manuals/tmep-archives.
128

59

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 documents
can be hundreds of pages long. These tools will not be effective if users must read through the
entire length of the document 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. Manuals can
include information about how often, and under what circumstances, they will be updated, which
can mitigate the risk of misinformation.
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.

D. Search Engines and Technological Strategies
Emerging technologies offers 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,

60

just as telephone calls and even email have become less important to younger generations.131
Some interviewees said they relied on social media platforms, particularly Twitter, to learn about
significant regulatory changes. Others lamented that it is harder than it once was to connect with
agency personnel over the phone. For these reasons, agencies should periodically reconsider the
effectiveness of different technological approaches in updating their notice plans.
i. Social Media Platforms
Some interview subjects reported some agencies have been using social media, especially
Twitter, as a tool for notice. Twitter 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 was efficient and effective. Some agencies
have focused on social media to reach audiences that are not English speaking. Interviewees who
work with immigrant communities noted that some people can only access the internet using cell
phones. The brevity of tweets132 therefore makes Twitter 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, 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, and more recently towards TikTok). Agencies should track these

131

E.g., Sophia June, Could Gen Z Free the World from Email?, N.Y. TIMES (Jul. 10, 2021)
https://www.nytimes.com/2021/07/10/business/gen-z-email.html.
132
Tweets cannot exceed 280 characters.

61

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.
ii. Email Lists
Email lists and listservs are another strategy that has benefits. 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 to be interested persons and entities. 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. 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.133
“EPA e-mail lists can be gold for small community groups,” said one lawyer who was a state
environmental regulator and represents environmental justice groups. 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. 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. The number of recipients on that email list is
probably around 5,000.134 This is a relatively easy and useful strategy when an agency is

133

Email Subscriptions for EPA News Releases, ENV. PROT. AGENCY, https://www.epa.gov/newsroom/emailsubscriptions-epa-news-releases.
134
Number of Public and Private Airports in the United States From 1990 to 2020, STATISTA,
https://www.statista.com/statistics/183496/number-of-airports-in-the-united-states-since1990/#:~:text=In%202020%2C%20there%20were%205%2C217,period%20from%2011%2C901%20to%2014%2C
702.

62

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 micro-business
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.
Interviewees at small NGOs that are not primarily legal were more enthusiastic about the value
of email lists. This comparison demonstrates that the effectiveness of different notice strategies
can vary with the type of organization an agency is trying to reach.
iii. Search Engine Optimization
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. The problem, according to interviewees, is that sometimes
agency regulatory material does not readily appear in such searches. 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. In the immigration arena, both scammers and language barriers
are a constant hurdle. For example, we ran Google searches for terms like “temporary protected
status” and “visa renewal” and although official government websites were always among the

63

results, for-profit and non-governmental 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. 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 “optimized” for commercial search engines.135
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 . . . .”136 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.”137 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. 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

135

See, e.g., Search Engine Optimization (SEO) Starter Guide, GOOGLE,
https://developers.google.com/search/docs/beginner/seo-starter-guide.
136
Why Government Websites Need SEO, DIGITAL.GOV, https://digital.gov/2013/05/02/why-government-websitesneedseo/#:~:text=Search%20engines%20such%20as%20Google,algorithms%20may%20take%20into%20consideration.
137
Id.

64

“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.138
A related strategy is “regulatory language optimization.” The General Services
Administration provides shared IT services for rulemaking agencies139 and has undertaken a
promising project on machine interpretability of agency rules. The technological background for
this project is complex and the details are beyond the scope of this report, but the core idea is that
while humans have the intellectual capacity to read and interpret regulations, the human resource
capacity is limited and machines could help in this process. If agencies produce rules with the
right vocabulary, experts in machine interpretability (“ontology engineers”) can add metadata to
each rule that makes it more accessible for computers, and the computers can work like a digital
assistant to help interested entities more easily search and understand the large universe of
regulatory changes. Projects of this type are worth revisiting in the future as the technology
develops and more experience is available, but it is probably premature to consider them in detail
as at this point in time.
iv. Custom Automated Notice
As discussed above, some agencies use email lists that allow potentially interested
persons to sign-up for emails on specific topics. This is an example of employing a technological

138

Other more technical examples of search engine optimization might include: (1) using featured snippets in
agency websites. These are items that appear in what is defined as position zero, or at the very top of the page; (2)
Taking measures to manage the reputation of the agency’s “brand” on the web. This helps with overall search engine
rankings of the agency’s website; (3) Keeping the website updated, creating new content, and avoiding outdated
materials including images.
139
Services for Federal Rulemaking Agencies, U.S. GEN. SERV. ADMIN., https://www.gsa.gov/policyregulations/regulations/managing-the-federal-rulemaking-process/services-for-federal-rulemaking-agencies.

65

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 emails. For example, the
USDA offers an “RSS” feed that can automatically alert users to any changes on the agency’s
website.140 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.141 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.
v. Artificial Intelligence
Although our research and interviews did not uncover significant use of Artificial
Intelligence (AI) in the notice process, this technological advance may nevertheless deserve
further exploration. 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.”142 AI is already proving to have value in regulatory compliance by,
for instance, helping entities more easily gather and assess information about applicable
regulations.143 While the present role and future possibilities of AI are vast, this subject probably
deserves more attention in separate projects as the technology matures.144

140

RSS Feeds, U.S. DEPT. OF AGRIC., https://www.usda.gov/rss-feeds.
E.g., Email Subscriptions for EPA News Releases, ENV. PROT. AGENCY, https://www.epa.gov/newsroom/emailsubscriptions-epa-news-releases.
142
Artificial Intelligence Definitions, STAN. UNIV. HUMAN-CENTERED ARTIFICIAL INTELLIGENCE (Sept. 2020),
https://hai.stanford.edu/sites/default/files/2020-09/AI-Definitions-HAI.pdf.
143
Bull, supra note 91.
144
Indeed, ACUS has already begun the process of studying artificial intelligence. Admin. Conf. of the U.S.,
Statement #20, Agency Use of Artificial Intelligence (Dec. 16, 2020), available at https://www.acus.gov/researchprojects/agency-use-artificial-intelligence.
141

66

E. Agency Websites
Agency websites can be excellent tool for providing notice provided that they are well
organized and provide clear instructions about where to find information. As discussed earlier,
various statutes mandate or incentivize145 publishing documents on websites. Likewise, on a
number of occasions ACUS has recognized the value of websites for providing notice of agency
activity.146 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.”
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. 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. 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. OSHA further has a bi-weekly

Professor Coglianese, for instance, describes FOIA as providing “self-enforcing incentives” by prohibiting
agencies from using documents in enforcement proceedings if FOIA requires agencies to publish those documents in
the Federal Register, but agencies fail to do so. Coglianese, supra note 3 at 46. We discuss this in further detail in
Appendix I. Congress and agencies may also consider more creative incentives, such as a government-wide prize for
agencies that achieve the greatest improvements in providing notice.
146
E.g. Todd Rubin, Public Availability of Inoperative Agency Guidance Documents (Nov. 22, 2021) (report to the
Admin Conf. of the U.S.) available at
https://www.acus.gov/sites/default/files/documents/Public%20Availability%20of%20Inoperative%20Agency%20G
uidance%20Documents%20Final%20Report.pdf; Cary Coglianese, Public Availability of Agency Guidance
Documents (May 15, 2019) (report to the Admin. Conf. of the U.S.), available at
https://www.acus.gov/sites/default/files/documents/Coglianese%20Guidance%20Report%20to%20ACUS%2005.15
.19%20-%20FINAL.pdf; Jeremy Grayboyes and Mark Thomson, Public Access to Agency Adjudicative
Proceedings (Nov. 22, 2021) (report to the Admin. Conf. of the U.S) available at
https://www.acus.gov/sites/default/files/documents/Public%20Access%20Final%20Report%2011.21.21.pdf; Mark
Thomson, Report on Agency Litigation Webpages (Nov. 24, 2020) (report to the Admin. Conf. of the U.S.)
available at
https://www.acus.gov/sites/default/files/documents/Agency%20Litigation%20Webpages%20Report%2011.24.20_2.
pdf.
145

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newsletter called QuickTakes that reports not only on rulemakings but also on enforcement
actions, “outreach activities, compliance assistance, and training and educational resources.”147
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. A
follow-on project might therefore consider what forms of publicity are best for informing
potentially interested persons about such tools.
The Food Safety Modernization Act148 requires the FDA to “publish the list of the foods
designated . . . as high-risk foods on [its] Internet website.”149 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.150 The Food, Drug, and Cosmetics Act further requires electronic publication
of guidance “as feasible,” including opportunities for public participation in guidance
development.151 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.”152
A micro-business owner with whom we spoke described the FDA’s website as her key
source of notice of regulatory changes. She regularly reviews FDA warning letters and uses

147

QuickTakes, OCCUPATIONAL HEALTH & SAFETY ADMIN., https://www.osha.gov/quicktakes.
P.L. No. 111–353.
149
21 U.S.C. § 2223(d)(2)(B).
150
We note that 5 U.S.C § 552(a)(2) requires agencies generally to publish material on websites even if Federal
Register publication is not required. See further discussion in Appendix I. The FDA example in the text is therefore
an instance of Congress providing an explicit and program-specific notice requirement.
151
21 U.S.C. § 371(h)(1)(A) (“The Secretary shall develop guidance documents with public participation and ensure
that information identifying the existence of such documents and the documents themselves are made available to
the public both in written form and, as feasible, through electronic means. Such documents shall not create or confer
any rights for or on any person, although they present the views of the Secretary on matters under the jurisdiction of
the Food and Drug Administration.”)
152
Id. § 371(h)(3).
148

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those letters to help guide her own business practices. There are nearly 3,000 warning letters
available in the FDA database,153 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. The database is also sortable by the FDA office that issued the letter,
further allowing her to focus on the most relevant documents. In short, the flexibility of the
search and sort functions allows users, even in the smallest businesses, to effectively access
information. 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 our interviewee, is that people must know
this material is available, or it will not be an effective source of notice. Agencies should provide
clear information on their homepages to help potentially interested entities understand the type of
information the agencies provide on their websites and how to access it. Indiana’s “virtual file
cabinet” is a good example of one way to do this, as we explain below.154
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. Another interviewee complained that online databases
of agency material are sometimes not searchable or the search function does not work properly.
Another person described a new Center for Disease Control (CDC) policy related to importation
of dogs from countries in which rabies are endemic. According to this person, while the CDC
published the new policy in the Federal Register, some significant controversy prompted the

153

Warning Letters, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/inspections-compliance-enforcement-andcriminal-investigations/compliance-actions-and-activities/warning-letters.
154
Appendix II contains a sample of the “how to” guide for the Virtual File Cabinet.

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CDC to respond with various changes and new communications. However, 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.”
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 prospective 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 where they house databases of material such as guidance documents and adjudicatory
decisions. Likewise, some interviewees suggested that websites might include “how-to”
instructions for accessing information. 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.155 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.156
Well organized and maintained websites can be very effective when paired with other
forms of notice, such as social media. 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. Interviewees also reported that agencies are effective when they post

155

Virtual File Cabinet, IND. DEPT. OF ENV. MANAGEMENT, https://www.in.gov/idem/legal/public-records/virtualfile-cabinet/.
156
Appendix II contains a sample of the “how to” guide for the Virtual File Cabinet.

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short notices of availability in the Federal Register, which describe regulatory changes and
provide a web address for full-text material on agency websites. As we described in VI.A, above,
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. This
interviewee described her experience searching an agency website for a particular case file. She
began her search on a database of similar files but was unable to find what she was looking for.
She eventually found the case file on another section of the website. She remarked that if
agencies provided clearer direction on website navigation, she, and others, would not “get lost”
on agency websites.
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. 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. 157
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.

E.g., FED. TRADE COMM’N, Blogs, archived at Wayback Machine, https://web.archive.org, Jun. 30, 2021,
https://web.archive.org/web/20210630161002/https://www.ftc.gov/news-events/blogs (showing blogs drafted
specifically for consumers and businesses). At some point in the last year the FTC has changed the strategy it uses
for posting blogs. It now has a business-oriented blog but apparently nothing directed to consumers. FED. TRADE
COMM’N, Blogs, https://www.ftc.gov/about-ftc/bureaus-offices/blog-posts. The historic approach remains a good
example of how agencies can tailor notice to different types of potentially interested entities.
157

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F. Agency Publications
Targeted agency publications can effectively reach identifiable audiences. The IRS is
a good example. The IRS has a variety of publications for communicating regulatory changes,
each of which is accessible through the Service’s website. The Internal Revenue Bulletin is a
weekly publication that 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.”158 The Bulletin is
unusual because it reports not only on internal agency policy changes, but also on outside
documents such as legislation, judicial opinions, and executive orders, thereby giving readers a
more holistic understanding of the regulatory landscape. Each year the IRS collects these weekly
publications into an Annual Cumulative Bulletin.
The Centers for Medicare & Medicaid Services also offers a different 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.159 These are
intentionally written in “plain language with actionable tips to use in day-to-day work.”160 The
Centers for Medicare & Medicaid Services also publishes a Quarterly Provider Update, which
“is intended to make it easier for providers, suppliers, and the general public to understand the
changes [they] are proposing or making in the programs [they] administer.”161

158

Internal Revenue Bulletins, INTERNAL REV. SERV.,
https://apps.irs.gov/app/picklist/list/internalRevenueBulletins.html.
159
CTR. FOR MEDICARE & MEDICAID SERV., supra note 110.
160
Id.
161
Id.

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G. Commercial Media Outreach
Agencies should use commercial media to alert the public to significant regulatory
changes, especially horizontal regulatory expansions. Most of the small organizations with
which we spoke said that press releases and commercial media coverage were effective ways for
them to get actual notice of significant regulatory changes. For many potentially interested
parties, coverage in national news media is likely to be an effective way for agencies to provide
actual notice because it does not require the potentially interested party to have any initial
knowledge of the regulatory change. This is particularly true for the general public that is
intended to benefit from regulatory changes but is not likely to be monitoring agency websites
and publications. 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. In addition, some agencies including OSHA, the CDC and the DHS have been
successful in getting their messages about new regulations or other initiatives covered as “public
service announcements.”162 This is a technique that others might consider using in appropriate
circumstances.

H. Face-to-Face Engagement, Phone Calls, and Public Meetings
Large and small entities alike said that personal connections are important to the current
regime of how agencies provide notice of significant regulatory changes, although these
connections also present equity problems. Larger entities were generally satisfied with the

162

Many agencies use public service announcements. For example, the Department of Labor has issued ten public
service announcement videos, in various languages, about COVID-19. Coronavirus Public Service Announcements,
U.S. DEPT. OF LABOR, WAGE AND HOUR DIVISION, http://www.dol.gov/agencies/whd/pandemic/public-serviceannouncements. OSHA has created public service announcements in the form of video and audio messages related
to fall prevention, COVID-19, storm recovery, and more. Public Service Announcements, U.S. DEPT. OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, https://www.osha.gov/psa. The DHS provides radio and
video public service announcements, in English and Spanish, promoting the “If you See Something Say Something”
program.

73

opportunities for direct interactions, while smaller entities felt that such interactions tended to
benefit larger enterprises. Although some smaller entities did report direct connections to
agencies, most felt the 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.163
Many agencies attend conferences; for example, the IRS regularly participates in the
American Bar Association Tax Section’s annual meeting. Attending conferences is a
longstanding tradition, and many agencies engage with the public in this way. In-person
meetings help to establish personal relationships and create a dynamic back-and-forth to make
sure that the public not only has notice but understands that notice. However, there are risks and
downsides to in-person meetings. The conversations at these meetings are exclusive as not all
potentially interested entities will be invited to all conferences. In many cases conference
attendance requires a substantial registration fee. 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 thru devices such as press releases and/or
posting on websites.

Another ACUS project on “automated legal guidance” will provide a complementary approach to one-on-one
interactions. Admin. Conf. of U.S., Automated Legal Guidance at Federal Agencies, https://www.acus.gov/researchprojects/automated-legal-guidance-federal-agencies. That project looks at technologies such as “chatbots” and
“virtual assistants.” These technological approaches to one-on-one interaction hold promise and may deserve more
attention in a follow-on study.
163

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Another way to provide face-to-face meetings with fewer equity concerns is webinars
that are open to all interested parties. Since the beginning of the COVID-19 pandemic, real-time,
interactive, but remote “Zoom meetings” have become much more commonplace. This change
should make a webinar strategy easier than it might have been just two years ago. 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 the last year the EPA offered a series of ad hoc webinars to
discuss the regulation of the “forever chemical” PFAS.164 In addition, the EPA hosts a monthly
webinar series “to translate research and share research resources and information . . . .”165 One
agency hosts regularly scheduled “Q&A sessions” online several times a week during which
agency staff are available for interested parties to ask questions. Both regularly scheduled and ad
hoc webinars may help potentially interested entities gain access to information more equitably
than in-person meetings, although alerting the public to the webinars is also an important aspect
of this notice.166
OSHA is also attentive to the value of face-to-face communications. The OSHA Alliance
Program “enables the agency to develop voluntary, collaborative working relationships with
organizations that are committed to workplace safety and health.”167 The Alliance program

PFAS Science Webinars for EPA Region 1 and State & Tribal Partners, ENV’T PROT. AGENCY,
https://www.epa.gov/research-states/pfas-science-webinars-epa-region-1-and-state-tribal-partners.
165
EPA Tools and Resources Webinar Series, ENV’T PROT. AGENCY, https://www.epa.gov/research-states/epa-toolsand-resources-webinar-series.
166
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.
167
OSHA Alliance Program, OCCUPATIONAL HEALTH & SAFETY ADMIN., https://www.osha.gov/alliances.
164

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engages trade associations, unions, community groups and other government entities to both
share information about OSHA and to gather input from participants. OSHA likewise provides
specialty outreach trainings for regional staff so these staff can provide “boots on the ground”
support for regional businesses.
Regional field offices are another resource for face-to-face engagement and may help
provide such engagement more equitably. 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.”168 The Compliance Assistance Specialists
run seminars and workshops and can provide general information about both regulatory
requirements and compliance assistance. By situating these programs in regional offices OSHA
thereby creates opportunities for repeated interactions with potentially interested persons and
entities that do not have a presence in Washington, D.C. Such interactions can build the personal
connections that many private-sector interviewees praised. Because these interactions are based
on proximity to regional offices rather than high-level connections in Washington, D.C., they
may also be more equitable.
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.169 The County Committees are hyper-local agencies made
up exclusively of regulated farmers from the local community.170

168

Compliance Assistance Specialists (CAS), OCCUPATIONAL HEALTH & SAFETY ADMIN.,
https://www.osha.gov/complianceassistance/cas.
169
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).
170
Id. at 1219.

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As with many techniques that agencies use to give notice, our interviews demonstrated
that larger and more well-resourced entities made more use of local connections than smaller and
less well-resourced entities. One interviewee said that EPA regional offices were effective and
have good relationships with local organizations, but most interviewees were either unaware of
local operations or saw those operations as a threat rather than an opportunity.171 However, in
several instances, smaller organizations reported that simply having the ability to make a phone
call to local offices would be very helpful. We reviewed a handful of agency websites, including
OSHA172 and EPA173 regional offices, USDA county offices,174 United States Citizenship and
Immigration Services (USCIS),175 and the Department of Education Office of Civil Rights.176
Phone numbers were available on the landing page 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. Another practice some agencies use to give notice that does not rely on the internet is
posting hard-copy notices in particular physical venues. 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 posts notices in workplaces and the Coast
Guard posts on docks where recreational boaters are likely to see the notices.

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.
172
Region 2, OCCUPATIONAL SAFETY AND HEALTH ADMIN., https://www.osha.gov/contactus/bystate/region2.
173
EPA Region 3 (Mid-Atlantic), ENV. PROT. AGENCY, https://www.epa.gov/aboutepa/epa-region-3-mid-atlantic.
174
Service Center Locator, U.S. DEPT. OF AGRIC.,
https://offices.sc.egov.usda.gov/locator/app?service=page/ServiceCenterSummary&stateCode=09&cnty=009.
175
U.S. Citizenship and Immigration Services, https://www.uscis.gov/.
176
Office of Civil Rights, U.S. DEPT. OF EDUC., https://www2.ed.gov/about/offices/list/ocr/index.html.
171

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I. Intermediaries, Directed Outreach, and Actual Notice
Face-to-face meetings and public events provide good opportunities to share information
broadly and to connect with interested persons and entities. However, like many other strategies,
they typically put the burden on interested entities to develop connections with the agency. In
view of the fact that 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 contacts, including making online and telephonic contacts available.
i. Intermediaries
One especially valuable method for directing information to the entities in most need of
notice is using intermediary organizations as additional channels of communication to multiply
the agency’s efforts to provide notice. This may include agency training programs and outreach
offices. As described above in Section V, intermediaries like trade associations, lawyers,
consultants, commercial and non-profit trainers, and newsletters may play a critical role in the
private sector—but they only reach certain entities, which typically do not include regulatory
beneficiaries or the smallest businesses.
There are, however, examples of ways that agencies can identify intermediary
organizations and work with those organizations to provide effective notice. OSHA facilitates
OSHA Training Institute Education Centers. Within this program OSHA authorizes a national
network of organizations to provide private-sector health and safety trainings aimed at
employers, employees, and supervisors.177 The EPA provides capacity-building grants to help
universities “stimulate and support scientific and engineering research that advances EPA’s

177

OSHA Training Institute Education Centers, OCCUPATIONAL HEALTH & SAFETY ADMIN.,
https://www.osha.gov/otiec/.

78

mission to protect human health and the environment.”178 The EPA likewise supports small
community groups by helping them understand and access federal grants.179 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
government. The state issues chemical application licenses and all licensees must attend a staterun training course that includes updates on changes in federal regulations. Notice plans should
consider possible uses of intermediaries, including states, and evaluate their effectiveness.
Many smaller and under-resourced interviewees expressed the need for funding to help
them build capacity as intermediaries. Those interviewees who played a role as intermediaries
between government and individuals were emphatic that with modest funding, they could more
effectively help provide notice. These organizations stated that they could train individuals how
to use agency websites, fill out forms, use apps, and access the Federal Register, or the
organizations could put together their own public service announcements, translate material, and
explore other tools to facilitate effective notice. In some cases, our interviewees thought it was
essential for intermediaries to deliver these sorts of services because many individuals would not
trust information that came directly from the government.
The agency notice plans we describe in Section VI.A can identify potential intermediary
partners, the needs of those partners, and strategies—such as trainings, public service
announcements, or joint public meetings—on which the agency and intermediary partner can
collaborate. The plans could describe how agencies will facilitate information sharing among

Off. of Rsch. & Dev., Science to Achieve Results (STAR) Research Grants Program, ENV’T PROT. AGENCY
(Mar. 2020), https://www.epa.gov/sites/default/files/2020-03/documents/star_fact_sheet_css_final_508_0.pdf.
179
Environmental Justice: Communities, ENV’T PROT. AGENCY,
https://www.epa.gov/environmentaljustice/communities.
178

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smaller groups, train groups in how to use the tools of the Office of Federal Register, or help
larger NGOs play a role as intermediaries.
A micro-business owner with whom we spoke said in her community most microbusinesses get notice through local networks of business leaders. These business leaders are
connected broadly and join smaller groupings for different business types. She communicates
with others in the network by text message and when anybody learns of important regulatory
developments, they will send text messages to the entire group. Our interviewee said this was
effective but only when people learn of regulatory changes, which she sees as the most difficult
problem. In short, sharing information is easy but getting notice is harder. Agencies should work
to identify and then provide targeted outreach to different networks and intermediaries to
capitalize on these existing structures for sharing notice of regulatory changes.
ii. Directed Outreach and Actual Notice
Some agencies have developed programs for more targeted outreach to interested persons
and entities. This can be a very effective technique in circumstances in which an agency can
identify an interested group and has a good way of communicating with them.
For example, OSHA offers examples of targeted programs. OSHA offers free, on-site
compliance consultations for small businesses that are walled off from enforcement.180 The
OSHA Strategic Partnership Program works with various intermediaries, including labor
organizations and trade associations, to connect with workers and employers and establish
specific performance targets and strategies to improve workplace safety.181 OSHA has other

180

On-Site Consultation, OCCUPATIONAL HEALTH & SAFETY ADMIN., www.osha.gov/consultation. Compliance
consultations are available to entities with fewer than 250 employees at a site and no more than 500 employees
nationwide.
181
OSHA Strategic Partnership Program, OCCUPATIONAL HEALTH & SAFETY ADMIN.,
https://www.osha.gov/partnerships/.

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programs that are designed to advance direct outreach in parallel with other strategies.182
However, there is little empirical information regarding how effective these programs are in
practice and how equitably they reach different potentially interested persons and entities. If
agencies use notice plans as we propose in the next part, these plans should include systems for
evaluating programs that provide direct notice.
IRS tax forms and accompanying instructions are also a method of providing notice of
complex regulations to many persons and entities. After changes to the Internal Revenue Code or
tax regulations, IRS has a staff dedicated specifically to translating these regulatory changes into
comprehensible and functional forms that help taxpayers understand their obligations. Not only
do the forms serve, essentially, as compliance worksheets, IRS understands that many taxpayers
rely on intermediaries for tax preparation. For this reason, IRS completes form updates well in
advance of tax season and provides them to tax preparers and software companies so these
intermediaries can program their software with new tax forms in mind.
To facilitate making the forms and other outreach material useable for intermediaries and
the public, IRS has established user working groups. These working groups provide the
opportunity for a dialogue in which IRS shares notice of regulatory changes and outreach plans
and work-group participants can give feedback. IRS is aware that these working groups can be
exclusive to the best positioned potentially interested entities and, for that reason, makes a
special effort to engage a wide range of participants and only holds open, public meetings. This
approach may be something for other agencies to consider.

182

In Section VI.E we discuss the QuickTakes publication and in VI.H we address face-to-face programs through
OSHA’s field offices.

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The Securities and Exchange Commission (SEC) also tries to provide initial notice
directly to parties. 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 can provide that notice directly, the agency does not rely on potentially interested entities
and persons learning of obligations on their own initiative.
The SEC’s Division of Examinations serves an important notice-giving as well as an
enforcement function. The Division conducts on-site examinations of regulated entities,
particularly financial intermediaries such as broker-dealers. The purpose of these examinations is
to understand how industry players behave, but also to inform them of rulemaking,
interpretations and enforcement trends. In that process the examination team will alert regulated
parties to compliance problems, and in so doing the SEC often provides direct notice of
significant regulatory changes to parties. 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. As part of its process for inspecting facilities for compliance, the EPA
uses a similar meeting commonly called a “closing conference.”183 At the closing conference the
inspector will answer questions and share information, will verify that their tentative findings are
correct, and will describe follow-up actions.184
The SEC has designed its regulatory and enforcement priorities so that this sort of direct
notice is possible. 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

Roger Reinhart, Fundamentals for Conducting Compliance Inspections, ENV’T PROT. AGENCY, (July 2019),
https://www.epa.gov/sites/default/files/2019-08/documents/reinhart_-_inspection_fundamentals_2019.pdf.
184
Id.
183

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efforts on financial intermediaries in part to engender self-regulation and make enforcement
more effective.185
When engaging with the much more numerous and diverse world of small businesses
engaged in capital development, the SEC uses a different approach, aiming to provide robust
support that can avoid the need for eventual enforcement actions. This strategy involves efforts
to provide notice of significant regulatory changes. The Office of Small Business Policy, within
the Division of Corporate Finance,186 conducts outreach specifically to small businesses. It
develops plain language summaries of rules around capital formation, alerts businesses to
opportunities for raising capital and then helps these businesses understand the regulatory
requirements that come with those opportunities. The Office of Advocate for Small Business
Capital Formation187 is a statutorily created office188 that specifically focuses on small businesses
and particularly minority-, women-, and veteran-owned businesses. The SEC Office of Advocate
for Small Business Capital Formation is primarily substance focused with a sub-mission to help
certain marginalized business owners and managers.
Agency offices dedicated specifically to outreach and connections to otherwise
unconnected interested persons and entities may also be effective tools for notice-giving. The
EPA, for instance, established an outreach office specifically for Puerto Rico and the
Caribbean.189 The office was designed to build connections between Puerto Rico and the EPA
and is particularly focused on helping Puerto Rico establish compliance by building connections

Thomas K. McCraw, With the Consent of the Governed: SEC’s Formative Years, 1 J. POL’Y ANALYSIS MGMT.
346, 352 (1982).
186
Office of Small Business Policy, SECURITIES & EXCH. COMM’N, https://www.sec.gov/smallbusiness/OSBP.
187
Office of the Advocate for Small Business Capital Formation, SECURITIES & EXCH. COMM’N
https://www.sec.gov/oasb.
188
15 U.S.C § 78d(1).
189
Caribbean Environmental Protection Division, ENV’T PROT. ADMIN.,
https://www.epa.gov/aboutepa/organization-epas-region-2-office-new-york-city#cepd.
185

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with local communities, regulated entities, and Puerto Rico government officials. This sort of
tailored effort will likely be effective in other contexts as well but is expensive and not likely to
be adaptable to reaching all underserved interested persons and entities.190 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 valuable when they are “walledoff” from enforcement programs. This separation may make regulated entities more comfortable
engaging with an agency. If outreach offices provide intermediaries with instructions or trainings
on how to access agency information, intermediaries can effectively share information with
smaller entities, providing a buffer between the most vulnerable communities and the
government. 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 incorporation of
some entities in the “front end” of regulatory development. SBREFA, for instance, requires that
certain “covered agencies” establish small business panels to gather input from small businesses
on the front end of rule development.191 Strictly speaking, these panels are not designed for
providing notice, but those we talked to explained that by bringing small businesses, small
business representatives, and NGOs into the decision-making process, agencies open channels
for notice after they complete the rulemaking process.192 Only the EPA, OSHA, and the
Consumer Financial Protection Bureau are currently required to establish these panels but

190

Id.
5 U.S.C. § 609(b).
192
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.
191

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agencies could consider whether there would be any benefit to voluntarily adopting that
strategy.193 The SBREFA framework is not the only one for generating engagement early on the
process of regulatory development. 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.
When engaged early in agency processes, our interviewees said they were more likely to have
actual notice of the final changes because of their ongoing engagement with agency staff.194
The USDA County Committees, introduced in the prior subsection, are also an example
of an agency using intermediaries to help provide 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.195 Interestingly, these committees are themselves regulatory and adjudicatory agencies
with significant power,196 but the USDA primarily promotes them as intermediaries between
farmers and the USDA.197 Although one of us has written critically about the county
committees,198 as intermediaries that alert farmers to changes in USDA policy, they may play an
important role.199 Small and under-resourced organizations have praised this sort of local
connection but were also wary of such connections if they perceived them a creating an
enhanced risk of enforcement. If agencies were to separate enforcement staff from outreach staff,

193

5 U.S.C. § 609(d).
Recommendation 2018-7, Public Engagement in Rulemaking, (Feb. 6, 2019); Michael Sant’Ambrogio & Glen
Staszewski, Public Engagement with Agency Rulemaking 152 (Nov. 19, 2018) (report to the Admin. Conf. of the
U.S.), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3615830.
195
Galperin, supra note 169 (citing 16 U.S.C § 590h(b)(5)(B)(i)(I) (2012)).
196
Id. at 1218.
197
Id. at 1227-28.
198
Id. (criticizing the committee structure for its reliance on majoritarianism without regard to reasoned and
deliberative decision making).
199
Id.
194

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and communicate that separation to the public, this might help increase trust. However, some
interviewees said that even with separate enforcement programs, they would not trust local
offices or outreach staff.
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 re-evaluate
notice plans, as we described in part VI.A, 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.

J. Guidance
Guidance serves multiple purposes, but one function is providing notice about changes in
agency requirements and policy to persons inside and outside of the agency. On the other hand,
huge volumes of guidance can be counterproductive to the goal of effective notice by making too
much information available and therefore difficult to access and assess.200 The notice plans
described above, by establishing a proactive planning process, can help agencies strike the right
balance in providing effective notice without overwhelming potentially interested parties.
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 potentially 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.201 As our analysis of
constitutional due process indicates, courts, including the Supreme Court, have recognized that

200

Coglianese, supra note 3. In Appendix I we provide a summary of recent congressional and presidential efforts to
make guidance documents more available to the public.
201
Id.

86

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.

VII. Conclusion
This study considers practices agencies can use to improve the ways in which they
provide notice of significant regulatory changes. Notice is important because it is an essential
ingredient in good governance and because there are a variety of legal requirements for agencies
to issue meaningful notice. Our interviews demonstrated that current notice practices are only
partially effective. The Federal Register is a valuable tool for notice, and many large entities
have the resources to track Federal Register notices regularly. Intermediaries such as trade
associations and other organizations also act as additional channels of communication that
multiply the agency’s notice by relaying it to their members and others. However, smaller
entities do not always benefit from these forms of notice. Further, many important regulatory
changes are not announced in the Federal Register, or are dispersed across multiple agency
documents, and are therefore hard to access and interpret. Small and large entities alike struggle
with this dispersed material. Relatedly, when regulations expand to include new subjects, it is
difficult for affected and interested parties to track changes because they may come from
agencies they are not already following. Dispersed regulatory regimes and horizontal regulatory
expansion also deserve special attention for improving notice.
We were able to identify multiple practices that might improve the way agencies provide
notice. User manuals, email lists, social media, improved indexing and searchability, and face-toface interactions both ad hoc and scheduled, are all promising tools worthy of further
exploration. Notice plans that describe how the agency intends to use these tools in different

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circumstances will help structure agency notice practices. These plans should also include
procedures and criteria for evaluation and adapting the notice plan in the light of experience, and
strategies for reaching underserved audiences.
The proposed recommendations below reflect our findings. The material in italics below
reflects explanations and examples that could be addressed in the preamble rather than in the text
of the recommendations that ACUS might adopt.

VIII. Proposed Recommendations
1. Assessing Strategies for Providing Effective Notice

A. Agencies should assess their strategies for providing notice in a way that allows entities
to access information of interest to them with only such difficulty and expense as is
reasonable under the circumstances (“effective notice”). Such assessment should focus on
persons and entities who actually desire notice or would desire notice if they knew about
the regulatory change in question (“potentially interested persons or entities”). Likewise,
assessments should apply to all “significant regulatory changes,” including not only
changes that are legally binding but also those agency interpretations and statements of
policy that might reasonably be expected to change behavior. Such changes may include:
a. Notices of rulemaking, including advance notices of potential rulemaking, notices
of potential rulemaking, and final rules;
b. Agency guidance documents including enforcement policies and priorities;
c. Precedential adjudicatory decisions; and
d. Any other final agency action that might provide notice to regulated parties or
beneficiaries of a change in regulatory provisions.
B. In assessing how to improve their notice strategies, agencies should consider which
individuals or entities may be potentially interested parties and the particular needs of
each category of potentially interested persons or entities. Such parties may include:
a. Entities subject to regulatory requirements, including
1. Large, well-resourced entities;

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2. Small or under-resourced entities;
3. Individuals; and
4. Entities not previously regulated.
b. Regulatory beneficiaries, including
1. Parties represented by legal entities;
2. Parties assisted by advocacy groups; and
3. Unrepresented and unassisted individuals.
c. Intermediary organizations, such as representative organizations, advocacy
groups, citizens organizations, and nonprofit organizations.

2. Developing Strategies for Providing Effective Notice

A. In assessing how to improve their notice strategies, agencies should evaluate which
specific notice practice(s) are appropriate for the potentially interested parties identified.
The following list includes some promising practices agencies may consider. The
material in italics is explanatory only and the committee may choose to delete it or
include in the preamble to its recommendations:

a. Press releases and public service announcements;
1. Some agencies find press releases and public service announcements
particularly useful to alert potentially interested parties concerning new
or expanded regulatory requirements that have not previously affected
them.
2. Under-resourced organizations that are less likely to receive notice
through personal connections or the Federal Register praise press
releases and commercial media coverage as effective devices for receiving
notice.
b. Listservs and email notices to those who have indicated an interest in an area;
1. Some community and advocacy groups say signing up for listservs is a
particularly useful, low-cost way for them to track regulatory
developments.

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2. Others avoid agency list servs because they worry about the volume of
emails they may receive. This suggests that agencies should consider
allowing users to opt-in to narrowly defined topics.
c. Posting hard copy notices where potentially interested individuals are likely to use
a specific venue;
1. Some agencies use hard copy postings to alert regulated parties or
beneficiaries who are likely to be in a specific physical space such as
OSHA postings in an employee breakroom or Coast Guard postings on
boat docks.
2. Although hard copy postings will be most useful in situations in which the
target audience is likely to see them in particular venues, posting notices
may be particularly useful for reaching potentially interested parties that
may not regularly access the internet.
d. Manuals, digests and other summaries of agency policies and interpretations.
1. Potentially interested parties praise agency manuals and summaries that
assemble numerous guidance documents, interpretations and policies in a
single, convenient reference rather than requiring each user to assemble
the pieces of a complex regulatory puzzle. Successful examples are the
Environmental Protection Agency’s Pesticide Registration Label Review
Manual and the Patent and Trademark Office’s Trademark Manual of
Examining Procedure.
2. Such manuals involve costs in terms of agency time as well as potential
adverse effects on enforcement cases if statements in an agency summary
are incorrect or policies change.
e. Brief notices of availability published in the Federal Register with links to
documents on agency websites, including policy statements and interpretative
rules, posted on agency websites or otherwise made available.
1. Although publishing in the Federal Register is not free, notices of
availability and links to the full documents on agency websites alerts many
parties and makes it easier for potentially interested persons to find
information on agency websites. Such notices of availability are typically

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short, which limits their cost, as the Office of Federal Register charges
based on length of publications;
f. Using hashtags, keywords and other methods to facilitate agency material
appearing on commercial search engines.
1. Potentially interested entities, particularly the smallest and least
resourced, often find it difficult to access agency material using
commercial search engines. Agencies can address this problem at a low
cost by providing a list of keywords or hashtags with definitions of their
scope on their websites and using them consistently on websites, manuals
and in notices of availability in the Federal Register;
g. Public meetings and meeting with representatives of interested parties;
1. While in-person meetings can be costly in terms of staff-time and
administration, many interested persons, large and small, praised the
opportunity for face-to-face meetings.
2. During the recent COVID pandemic, many people and agencies became
more familiar and comfortable with internet-based meeting software (such
as Zoom, Webex and Microsoft Teams). These tools can make it easier for
agencies to meet with potentially interested parties. However, even if not
covered by the Advisory Committee Act, we caution that such meetings
should be offered on an equal basis to interested parties, and if it is not
practical to accommodate all interest parties, to a representative sampling
of different categories of interested parties.
h. Outreach offices to underserved groups and interests.
1. Potentially interested parties spoke about the value of local and regional
offices. Establishing new offices presents a large cost but creating
outreach programs within existing regional offices may be an effective and
lower cost strategy, particularly if the outreach program is walled off from
enforcement programs to increase trust.
i. Partnering with intermediary organizations.
1. Several agencies develop ongoing relationships with key intermediaries so
those intermediaries can help disseminate notice through their networks.

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The Internal Revenue Service, for example, has an extensive outreach
program aimed at tax preparers and attorneys who can effectively
transmit information about regulatory changes to individual taxpayers.
2. One of our interviewees reported that the European Commission
sometimes hires intermediary organizations to provide training to
interested parties.
3. Both OSHA and EPA require training in certain areas (such as reducing
exposure to lead paint dust in repair and renovation of properties) and
certify commercial firms approved to provide such training.
j. Technological developments for making agency websites and notices in the
Federal Register easier to find and navigate, including standardizing search terms,
hashtags and indicating in agency publications and announcements what
categories persons and entities are most likely to be potentially interested.
1. The Office of the Federal Register maintains a keyword thesaurus to help
facilitate searches, but agencies do not always use the standardized terms.
2. Including potentially interested entities and agencies in developing the
standardized keywords may help make search tools more intuitive and
effective.
B. In assessing which notice practice(s) to employ, agencies should consider the
effectiveness of those practices, particularly whether they:
a. Are cost effective;
b. Increase voluntary compliance and reduce the need for coercive enforcement;
c. Reach underserved groups, including small and micro-businesses, citizens groups,
advocacy groups, other regulatory beneficiaries, and those whose primary
language is not English;
d. Reduce transaction costs for regulated parties to assemble and interpret regulatory
requirements for themselves;
e. Increase participation in regulatory development;
f. Increase satisfaction and the perceived legitimacy of the agency’s regulation; and
g. Have proven effective when used by other agencies to provide actual notice.

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3. Assessment and Oversight

A. Agencies should develop notice plans for significant regulatory changes to document the
strategies employed for providing effective notice. Notice plans should:
a. Identify the regulatory change and what makes it significant;
b. Identify the potentially interested parties;
c. Set out the practices that the agency proposes to use to provide notice; and
d. Identify metrics to measure the effectiveness of the notice practices.
B. Agencies should consider designating an agency office or official as its Chief Outreach
Officer, who shall:
a. Be responsible for evaluating the effectiveness of the agency’s notice plan;
b. Keep abreast of technological developments;
c. Evaluate best practices of other agencies for providing notice; and
d. Make recommendations for improving the agency’s practices and procedures to
better provide effective notice of significant regulatory changes to potentially
interested parties.
C. Agencies should retrospectively review which strategies are most effective at notifying
potentially interested parties. Agencies should:
a. Review and revise their notice plans to reflect which are most effective in practice
as well as which provide equitable access and do not favor certain groups over
others;
b. Obtain feedback from interested persons and entities regarding which methods for
providing notice they considered most effective; and
c. Participate in interagency notice working groups to share experience, best
practices, and information regarding the effectiveness, cost-effectiveness and
equity of various notice techniques and strategies.

4. Public Disclosure and Transparency

Agencies should make public all elements of their notice-giving strategies, including:
a. Draft notice plans, prior to effectuation, with allowance for public comment;

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b. Final notice plans;
c. Instructions for how potentially interested parties may opt-in to receive notices; and
d. The results of retrospective reviews.

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APPENDIX I: Constitutional and Statutory Requirements for Notice
A. Constitutional Due Process
“Due process requires that parties receive fair notice before being deprived of
property.”202 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.203 Publication in the Federal Register establishes a
statutory presumption of notice of a regulatory change,204 but many significant regulatory
changes can occur through policy statements, interpretative rules, and other agency actions that
are not necessarily published in the Federal Register.205 For these sources of policy change, if an
agency seeks to enforce the policy against a party, due process doctrine 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 . . . .”206 In some cases, due process may require more than
publication in the Federal Register.
Although the Supreme Court has never addressed the issue directly 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.”207 Notice, the

Gen. Elec. Co. v. Env’t Prot. Agency, 53 F.3d 1324, 1328 (D.C. Cir. 1995).
Id.
204
44 U.S.C. § 1507.
205
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 and publish material
in the Federal Register even if that material is not strictly subject to such requirements.
206
United States v. Chrysler Corp., 158 F.3d 1350, 1354 (D.C. Cir. 1998). It appears to be rare for an agency to seek
to enforce unpublished policy against a party. In most enforcement actions an agency will reference statutory
authority or authority found in published regulations and codified in the Code of Federal Regulations. Alternatively,
an agency may provide direct notice to a party in advance of enforcement proceedings.
207
F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).
202
203

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Court has said, is not limited only to prohibited conduct. Regulated parties should also have
notice “of the severity of the penalty.”208 In Mullane v. Central Hanover Bank & Trust, the
Supreme Court held, 7-1, that “[a]n elementary and fundamental requirement of due process
. . . is notice reasonably calculated, under all the circumstances . . .” and ruled that constructive
newspaper publication was insufficient in some circumstances.209 Mullane did not involve notice
of significant regulatory changes, but at least one federal court has applied Mullane to federal
regulation.210
In Higashi v. U.S., the Federal Circuit ruled that Mullane applied to the recission of an
executive order. The court found that, on the facts of that case, 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.211 Higashi, however, was looking back at the circumstances that constituted effective
notice in 1944.212 Today, however, what is the best notice practical under the circumstances may
have changed, because new technologies such as email, websites and social media are now
available to provide effective notice at relatively low cost. The principle that due process
requires the best notice practical under the circumstances means that agencies run a serious risk

208

BMW of North America, Inc. v. Gore, 517 U.S. 559, 574 (1996).
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also, Adamo Wrecking Co. v. United
States, 434 U.S. 275, 290 (1978) (Powell, J., concurring) (“The 30-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.”); 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 (2020).
210
Higashi v. U.S., 225 F.3d 1343 (Fed. Cir. 2000).
211
Id. at 1348-1349.
212
Id. at 1345.
209

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that procedures for providing notice may be held unconstitutional under Mullane if they are not
updated to take advantage of these newer
technologies.
Lower courts have addressed the
overlap of due process and regulatory
notice more directly. In General Electric v.
Environmental Protection Agency the D.C.
Circuit noted that pre-enforcement
communication with a regulated entity will,
Source: U.S. Office of the Federal Register, "The Federal Register:
What it is and how to use it” (1977).

like publication in the Federal Register,

provide sufficient notice to satisfy Due Process notice requirements.213 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.”214 The majority of the courts of appeals have adopted this test.215 However,
even among courts explicitly adopting General Electric, there are differences in how they apply
the “ascertainable certainty” test.216 Thus, to date most lower courts hold that publication in the
Federal Register or actual notice are sufficient to comply with due process.217 However,
Supreme Court decisions applying the Due Process clause outside of the administrative context
place a high value on taking reasonably practical measure to provide effective notice. Therefore,

213

Gen. Elec., 53 F.3d at 1329.
Id.
215
Petition for a Writ of Certiorari at 13-18, SNR Wireless LicenseCo v. Fed. Commc’n Comm’n, No. 15-1330 (D.C.
Cir. 2017), cert. denied SNR Wireless LicenseCo v. Fed. Commc’n Comm’n, 138 S.Ct. 2674 (2018).
216
Id.
217
One district court opinion might suggest that when an agency publishes a document on its website, that website
availability may suffice as due process notice. 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 . . . .”).
214

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in our judgment, agencies are running a significant risk if they do not provide the most effective
notice practical under the circumstances.218 In some circumstances, publication in the Federal
Register may not be the most effective notice practical under the circumstances.

B. Statutory Requirements
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.219 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,220 there is widespread understanding that agencies must publish legislative
rules in the Federal Register. There is also widespread compliance with this requirement. The
same is not true for regulatory changes that emerge from other agency actions.221
The Federal Register Act permits agencies to publish guidance documents in the Federal
Register,222 and the Freedom of Information Act (FOIA) requires publication of many guidance
documents.223 There is some uncertainty about publication requirements for guidance documents,
however. As an initial matter, FOIA clearly states that agencies must publish certain guidance in
the Federal Register.224 Specifically, the statute reads: “(1) Each agency shall separately state
and currently publish in the Federal Register for the guidance of the
public— . . . (D) . . . statements of general policy or interpretations of general applicability
formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the

218

Mullane, 339 U.S. 306.
44 U.S.C. § 1507 (“The publication in the Federal Register of a document creates a rebuttable presumption that
the agency has fulfilled its legal requirements under the statute”).
220
44 U.S.C. § 1507; 5 U.S.C § 552(a).
221
DAVIS, supra note 72 at 75.
222
44 U.S.C. § 1505(b).
223
5 U.S.C. § 552(a).
224
5 U.S.C. § 552(a)(1)(D).
219

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foregoing.”225 The reference to statements of general policy and interpretations of general
applicability reference agency actions typically described as “guidance.”226
The FOIA publication requirement covers much, but not all guidance.227 Lower courts
have held that guidance only triggers the publication requirement if it is both “generally
applicable” and has a “significant impact” on regulated parties.228 Thus, according to the 9th
Circuit, if a rule is merely a clarification of existing duties or “instructive,” publication may not
be necessary.229 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 Administrative Procedure Act 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.230 Under this line of thinking, documents incorporating published material,
such as user manuals that synthesize statutory and published legislative rules, are also likely
exempt.231 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. Moreover, there is
limited case law on the subject, all of which is from lower courts. If the Supreme Court has
reason to address whether FOIA requires Federal Register publication of guidance documents, it
is possible that the Court may read the expansive language as mandating more publication of
guidance.

225

Id. (emphasis added).
Coglianese, supra note 3, at 21.
227
E.g., Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352 (Fed. Cir. 2005).
228
Andersen v. Butz, 550 F.2d 459 (9th Cir. 1977).
229
Id. at 463; St. Eliz. Hosp. v. U.S., 558 F.2d 8 (Fed Cir. 1977).
230
Nguyen v. United States, 824 F.2d 697 (9th Cir. 1987).
231
Cathedral Candle Co., 400 F.3d. 1352.
226

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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.”232 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.233 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.234 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.”235
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 the 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.”236 This language covers a wide

232

5 U.S.C § 552(a).
E.g., Northeast Env. Def. Center v. Brennen, 558 F.2d 930 (9th Cir. 1990); Kennecott Utah Copper Corp. v.
Dept. 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. Alliance for Home Care Serv. 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).
234
Coglianese, supra note 3, 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).
235
Coglianese, supra note 3, at 22.
236
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); 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 (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.
233

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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 choses to publish on a website.237
The Freedom of Information Act also includes an online “reading room” requirement that
mandates agencies make certain information available online.238 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.”239
The Federal Register publication requirement applies to any document of “general
applicability.”240 The website publication requirement applies to those documents “which have
been adopted by the agency and are not published in the Federal Register.”241 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.242 Regardless, FOIA clearly requires that agencies publish most
regulatory material in the Federal Register and on agency websites.

237

By contrast, § 552(a) seems to subtract precedential weight if an agency fails to publish a document in the
Federal Register.
238
Prior to the 1996 amendments the statute required documents be made “available for public inspection and
copying . . .” Freedom of Information Act of 1966, PL 89-487 (Jul. 4, 1966), thus the historic phrase “reading
room.”
239
5 U.S.C. § 552(a)(2).
240
5 U.S.C. § 552(a)(1)(D).
241
5 U.S.C. § 552(a)(2)(B).
242
See, e.g., Anderson v. Butz, 550 F.2d 459 (9th Cir. 1977) (holding that agency staff may avoid Federal Register
publication if they publish documents in a reading room). But see Appalachian Power v. Train, 566 F.2d 451
(4th Cir. 1977) (“Reasonable 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.

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Compliance with and enforcement of this section are irregular, at least with respect to
guidance.243 Guidance documents are understood to announce agency policy without creating
binding legal standards.244 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.245 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 clear standard that
agencies publish guidance documents in the Federal Register and on agency websites.
Other statutes also provide trans-substantive 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
Government information the agency intends to make available and accessible to the public on the
Internet,” “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.246 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.”247 The Federal Records Act further requires agencies to have procedures for

243

Russell L. Weaver, An APA Provision for Nonlegislative Rules?, 56 ADMIN. L. REV. 1179, 1188 (2004).
E.g., Pacific Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 38-9 (D.C. Cir. 1974).
245
5 U.S.C. § 552 (a)(1).
246
44 U.S.C. § 3501, Sec. 207 note (f)(2)(A).
247
44 U.S.C. § 3101.
244

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public disclosure and electronic posting.248 Unlike the E-Government Act, the Federal Records
Act directs agencies to organize their records to facilitate document availability.
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.”249 An agency
must issue a final regulatory flexibility analysis when it issues a final rule under the notice-andcomment process.250 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.”251
SBREFA252 amended the RFA and requires agencies to create “small entity compliance
guides.”253 We discuss these guides in Sections V and VI of this report. One stated purpose of
the SBREFA was “to develop more accessible sources of information on regulatory and
reporting requirements for small businesses.”254 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.”255 The Act 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.”256
Additionally, the Act requires agencies to “cooperate to make available to small entities through

248

44 U.S.C. 3102(2).
5 U.S.C. § 603(a).
250
Id. § 604(a).
251
Id. § 605.
252
Pub. L. No. 104-121.
253
110 Stat. 858 § 212, 5 U.S.C. 601 note.
254
Id. § 203.
255
Id. § 212(a).
256
Id.
249

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comprehensive sources of information, the small entity compliance guides and all other available
information on statutory and regulatory requirements affecting small entities.”257
In addition to these trans-substantive statutory requirements, there are program-specific
statutory requirements as well. For example, the Internal Revenue Code includes notice
requirements for individual taxpayers regarding interest and penalties.258 However, the Code’s
“Rules 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.”259 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.260 While regulations and Treasury decisions (another form of IRS rules) must be
“published in the Federal Register,”261 the regulations require Treasury decisions to be posted in
the Internal Revenue Bulletin as well.262 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.”263 The IRS

257

Id § 212(b).
26 U.S.C. §§ 6631, 6751.
259
26 U.S.C. § 7805.
260
See 26 CFR § 601.601.
261
Id. § 601.601(d)(1).
262
Id. § 601.601(d)(2)(ii)(a).
263
Id. § 601.601(2)(b)(iii).
258

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regulation also requires that the IRS publish Revenue Rulings and Revenue Procedures in the
Internal Revenue Bulletin.264
As mentioned briefly in Section VI.E, the Food Safety Modernization Act,265 which
amended the Federal Food, Drug, and Cosmetic Act, established requirements for the FDA to
publish certain food safety measures on its website.266
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.

C. Executive Order 12898
One central finding of our research is that small, less-resourced entities have the most
difficulty getting effective notice of significant regulatory changes. Our interviews show that the
groups struggling to get effective notice include communities in which English is not the primary
language, immigrant communities, and environmental justice communities. Executive
Order 12898, from 1994, establishes a variety of directives related to environmental justice.267
Among these directives is a general call to improve the way agencies give notice to marginalized
communities.268 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.” This is not a mandate, but it is a
reminder that effective notice may require agencies to translate certain documents from English.

264

See Understanding IRS Guidance - A Brief Primer, INTERNAL REVENUE SERV.,
https://www.irs.gov/newsroom/understanding-irs-guidance-a-brief-primer; 26 C.F.R. § 601.601(d)(2).
265
P.L. No. 111–353.
266
21 U.S.C. § 2223(d)(2)(B).
267
Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,
Executive Order 128,98 (Feb. 16, 1994).
268
Id.

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The Executive Order continues, “Each Federal agency shall work to ensure that public
documents, notices, and hearings relating to human health, or the environment are . . . readily
accessible to the public.” 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.
Taken together, from the constitutional baseline of due process through the Federal
Register Act, various FOIA provisions, and other trans-substantive notice requirements, various
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 may be
an important reason for agencies to improve their notice practices as technology evolves.

D. Guidance
Guidance documents advise the public about how agencies interpret their legal authority
and how they plan to use their discretionary power.269 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

269

Nicholas R. Parrillo, Federal Agency Guidance: An Institutional Perspective 23 (Report to the Admin. Conf. of
the U.S.) (Oct. 12, 2017) citing Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947).

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problem. This part 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 guidance270 and has
promulgated a legislative rule meant to control how it issues and shares guidance.271 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.272 The Office of
Management and Budget issued a Bulletin for Good Guidance Practices in 2007.273 Still in effect
today, the Bulletin requires, among other things, that agencies make significant guidance
documents available on agency websites.274 However, we have found that not all agencies are
complying with these and similar requirements.
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 . . . .”275 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.276 The second executive order, issued
the same day, focused more narrowly on the role of guidance in enforcement actions, and, among
other things, prohibited an agency from citing guidance documents unless “it has notified the
public of such document in advance through publication, either in full or by citation if publicly

270

21 U.S.C. § 371(h)(3).
21 C.F.R. § 10.115 (2018).
272
45 Fed. Reg. 85400 (Dec. 24, 1980) codified at 40 CFR 56.6; 42 U.S.C. § 7601(a)(2)(C).
273
Off. of Mgmt. and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25,
2007).
274
Id. at 3437.
275
Promoting the Rule of Law Through Improved Agency Guidance Documents, Executive Order 13,891 (Oct. 15,
2019).
276
Id.
271

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available, in the Federal Register (or on the portion of the agency’s website that contains a
single, searchable, indexed database of all guidance documents in effect).”277
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.278 In the wake of this revocation, some agencies were quick to repeal recent rules
that implemented stricter guidance procedures.279 Similarly, the Carter-era EPA rule, while
plainly requiring publication of certain guidance,280 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.281 This will involve accommodating availability, flexibility, and usability alongside
legal requirements for publishing guidance.282

277

Promoting the Rule of Law Through Transparence and Fairness in Civil Administrative Enforcement
Adjudication, Executive Order 13,892 (Oct. 15, 2019).
278
Revocation of Certain Executive Orders Concerning Federal Regulation, Executive Order 13,922 (Jan. 20, 2021).
279
E.g., 86 Fed. Reg. 16114 (Mar. 26, 2021).
280
45 Fed. Reg. 15400 (Dec. 24, 1980) codified at 40 CFR 56.6.
281
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. Some academic literature
would tend to support this notion. See generally JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO
SAFETY (Harvard 1990) (arguing that decisions by some agency officials may be influenced by enhancing their postgovernment career prospects).
282
See 5 U.S.C. § 552(a)(1) & (2) and further discussion of the legal requirements in Appendix I.

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APPENDIX II: Indiana Department of Environmental Management’s
Virtual File Cabinet “How To” Guide

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