This blog noted a number of sizable regulations in the pipeline several weeks ago – some published, some to be published, some just completing review by the Office of Management and Budget (OMB), and some compound sets of regulations not subject to that review. All exhibit transparency issues for even a practiced regulatory scrivener. Size alone is not the underlying problem – large rules are inevitable in the complex system of federal regulation; transparency is the underlying problem. We suggest five opportunities to improve transparency to offset the downside of size.
Opaqueness in Preambles: Proposed and final regulatory text has its own structure – the amendatory instructions and language changes follow the titles and parts of the Code of Federal Regulations. Finding a particular provision is not difficult. Preambles, on the other hand, can be long, confusing, and tedious. Even a well-intentioned table of contents (good idea) can fall short because the Federal Register cannot replicate the table of contents in the published Federal Register.
- Many agencies have the good habit of releasing typescript copy of proposed and final rules upon signature and transmittal to the Federal Register. Many also have the good habit of providing a table of contents – which also helps instill discipline in the writing process and provides both a roadmap and a finding aide for readers.
- Additional agency steps will improve that process by a substantial margin: paginate the table of contents in the agency-released version, and then remove the pagination from the copy sent to the Office of the Federal Register (OFR).
- The OFR (and perhaps the Administrative Committee of the Federal Register) and Government Printing Office should develop a system by which tables of contents can be paginated to the Federal Register. When a rule preamble is hundreds of pages in length, finding any specific point is difficult at best – pagination would help.
Opaqueness in Regulatory Text: Some regulations extend ad infinitum. One example spans more than 130 pages of fine unbroken text in the Code of Federal Regulations, has few headers, excruciating multiple levels, and extended numbers and letters – i.e. a dense mass of regulation. Finding anything in such a mass requires personal, annual annotation of the regulation. (Fortunately, at last check, the agency was working to fix this regulation).
- The House Legislative Counsel’s Manual on Drafting Style recommends a “modified revenue style” to highlight a most visually effective tool: frequent statutory section and paragraph titles. Agencies can easily adapt this style to regulatory section and paragraph titles. Whether Congress follows its own guidance, agencies should.
- At the same time, the OFR should strengthen its advice to agencies in the Document Drafting Handbook that they should not break sections down by more than three paragraph levels. If a section is that cumbersome, it should be broken into several sections because it likely contains several subjects or procedures.
Making Public Comments: Agencies are required to advise the public on where and how to file public comments, but agencies differ on how much they are helpful. Some agencies helpfully guide prospective commenters directly to the docket page on Regulations.gov. Others simply instruct the public to “follow the instructions” on Regulations.gov or their own docket system. Agencies should already know the docket number, but some seem unable to advise the public of that docket number.
- Agencies should establish the docket number well before a rule is signed and include the specific docket number in the preamble instructions for commenters. Those good agencies that release typescript versions ahead of transmittal for publication in the Federal Register should include the docket number as a link. The Federal Register should also include docket links (if and when possible).
Finding Public Comments: Multiple-agency joint, concurrent, or coordinated rules may provide a dozen different ways for the public to comment and a dozen repositories for those comments as recent mortgage financing rules illustrated. Finding comments can be daunting. Responsive comments to initial public comments are generally productive and some agencies have institutionalized the response comment process. In several joint rules, each agency may have its own docket and docket system. At the same time, some agency public comment processes are themselves archaic and seem to be an attempt to exclude all by a segment of the bar representing the specific industry, e.g. the Federal Communications Commission (FCC).
- Only Congress can mandate this solution: adopt Regulations.gov as the sole public docket system for all agencies. The Office of Management and Budget (OMB) and Environmental Protection Agency (EPA) have pressed this issue with Executive agencies in the past and done so successfully. “Independent agencies” need to shed a little of their personalities and provide better public service.
English is an Understandable Language: Colleagues from government will remember (perhaps not fondly) the harangue that the English language is “subject – verb – object” (SVO) oriented. Other languages use different structures, or are even conceptual in nature, but English is best understood in its natural SVO form. Agencies would rather write “like lawyers” with predicates and conditionals before subjects, and immense, convoluted sentences. Congress enacted and the Office of Information and Regulatory Affairs (OIRA) pleaded for plain writing, and courts have complained about overly complex language, but the agencies continue to obfuscate. Much of the “guidance” fails its own tests because it uses crutches and insulting wordy “dumb down” techniques instead of plain language.
- OMB (or Congress, for the independent agencies) should require that agencies hire editors, organizationally separate from the programs writing rules. Some agencies with consolidated regulatory offices internalize standard writing, but editors need to be free of historic agency idiosyncrasies that are retained only for the sake of agency idiosyncrasies.
- OMB (Congress, etc.) should require agencies to include in all rules, not just rules under the Paperwork Reduction Act (PRA), an actual time-and-motion-based calculation of time required for a reasonably educated individual (from outside the agency and without prior knowledge of the program) to read and understand that specific rule.
- OMB (Congress etc.) should require that agencies publish the names of the authors of a rule in the rule preamble.
- Plainlanguage.gov, the OMB-supported ‘authority’ for implementation of the Plain Writing Act, should shed its “Question and Answer” style that hides the subject of a discussion in a meaningless question format and restricts the answer to the question the agency wants to be asked. FAQ is a crutch that impedes an agency from walking and talking like the rest of the world. Would Strunk & White approve?
Enforcing Transparency: Agencies may dislike these ideas, but these ideas will improve the transparency of regulations and the agencies’ explanations of those regulations. The goal, after all, is to permit the public to read, understand, and comment on proposed rules and (hopefully) understand and comply with final rules. If those goals make agencies uncomfortable, so be it.
More? Comments, alternatives, other problems and solutions, are always welcome.
Some Questions: This post started because a number of very large rules or proposed rules required unnecessarily difficult reading and analysis. Therefore, two questions:
- What is the longest known document filed and published in the Federal Register?
- What was the longest, most convoluted, or most opaque sentence to appear in the Federal Register?
Answer these questions before October 1 and this blog will recognize the best answers. You can remain anonymous if you wish.