Notice & Comment

Executive Summaries for Rulemaking Preambles, by Michael Herz

Few documents are as daunting as a massive preamble in the Federal Register.  In other settings, huge documents are preceded by an Executive Summary.  Would that make regulatory preambles more understandable and accessible?  OIRA thinks so.

On January 4, Cass Sunstein, Administrator of the Office of Information and Regulatory Affairs, issued a memorandum to the heads of executive departments and agencies regarding executive summaries.  The key language of the brief memo states:

To promote public understanding and to ensure an “open exchange of information and perspectives,” regulatory preambles for lengthy or complex rules (both proposed and final) should include straightforward executive summaries. These summaries should separately describe major provisions and policy choices. Such executive summaries should generally be placed at the start of regulatory preambles.

The full memo is available here.

The goal is to enhance public participation in rulemaking.  There’s no question that such participation is deterred by the sheer bulk and unmanageability of regulatory preambles.  Many have suggested that subdividing proposals, for example, would allow potential commenters to see what is of interest and to focus on only the relevant portion of a larger proposal.  An executive summary seems a helpful, but very modest, step in the direction of enabling and promoting greater public participation.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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