Professor Cynthia R. Farina, Professor Mary HJ. Newhart, and CeRI e-Government Fellow Cheryl Blake ·
83 Geo. Wash. L. Rev. 1358 ·
This Article, part of the special issue commemorating the fiftieth anniversary
of the Administrative Conference of the United States (“ACUS”), situates
ACUS’s recommendations for improving public rulemaking participation in
the context of the federal “plain language” movement. The connection between
broader, better public participation and more comprehensible rulemaking
materials seems obvious, and ACUS recommendations have recognized
this connection for almost half a century. Remarkably, though, the series of
presidential and statutory plain-language directives on this topic have not even
mentioned the relationship of comprehensibility to participation until very recently.
In 2012, the Office of Information and Regulatory Affairs (“OIRA”)
issued “Executive Summary Guidance,” instructing that “straightforward executive
summaries” be included in “lengthy or complex rules.” OIRA reasoned
that “[p]ublic participation cannot occur . . . if members of the public
are unable to obtain a clear sense of the content of [regulatory] requirements.”
Using a novel dataset of proposed and final rule documents from 2010
through 2014, this Article examines the effect of the executive summary requirement.
The results show that the use of executive summaries increased
substantially compared with the modest executive-summary practice pre-Guidance.
Additionally, agencies have done fairly well in providing summaries
for “lengthy” rules. Success in providing the summary in “complex” rules,
and in following the standard template recommended by the Guidance is
mixed. The most significant finding is the stunning failure of the new executive
summary requirement to produce more comprehensible rulemaking information.
Standard readability measures place the executive summaries at a
level of difficulty that would challenge even college graduates. Moreover, executive
summaries are, on average, even less readable than the remainder of
the rule preambles that they are supposed to make more accessible to a
broader audience.
