This article was authored by Cary Coglianese, Edward B. Shils Professor of Law and Political Science at the University of Pennsylvania and Chair of ACUS's Committee on Rulemaking, and Connor Raso, Senior Counsel at the U.S. Securities and Exchange Commission and Chair of ACUS's Committee on Regulation.
This article first appeared in the Regulatory Review's series on "Prioritizing Accessibility and Clarity in Agency Actions" that focuses on the ACUS Recommendations adopted at the June 2018 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
Regulatory agencies frequently issue guidance documents to help the public understand their policies better. But such guidance documents can only help those members of the public who can find them. Unfortunately, in some cases, guidance needs to be made more readily accessible to the public.
That is the message of a recent recommendation issued by the Administrative Conference of the United States (ACUS), a government agency dedicated to finding ways to improve administrative processes in the federal government. ACUS adopted its new recommendation, entitled Public Availability of Agency Guidance Documents, to encourage regulatory agencies to make their guidance easier for the public to find on agency websites.
The volume of agency guidance has grown as the government has become bigger and as regulations have grown more numerous and complex. In many cases, businesses and others affected by regulation depend on guidance documents as much as regulations themselves to understand how to navigate difficult compliance challenges.
But as the U.S. Governmental Accountability Office (GAO) noted in a 2015 report, “without providing the public an easy way to access significant guidance, agencies cannot ensure that the public can know about or provide feedback on these documents.”
Admittedly, agencies have made progress over the years in making guidance more available to the public. Agency websites have become more complete and the public has generally become more adept at finding information online. Compared to the pre-internet era, guidance is surely more accessible than ever before.
Nonetheless, agencies still have room for improvement. Concerns remain about the comprehensiveness, currency, and accessibility of guidance documents on agency websites. The 2015 GAO report noted a range of deficiencies—from agency webpages with broken links to the failure of agencies to have adequate internal document management systems.
These concerns may well have provided part of the impetus behind a very recent White House order requiring many agencies to take steps to present their guidance documents in a single searchable online database.
We recognize, of course, that agencies use guidance differently. Bigger agencies may issue guidance on many subjects, while smaller agencies may issue guidance documents on a narrower range of topics. Guidance from some agencies may be of interest to a small, relatively well-informed regulated community, while such documents at other agencies aim to speak to a much broader audience.
Appreciating this variability, ACUS’s recent recommendation presents an achievable management strategy for all agencies to follow to improve the accessibility of their guidance documents. In particular, the recommendation encourages agencies to come up with a clear definition of what constitutes guidance and then to establish internal procedures for ensuring that all relevant guidance documents are posted online, kept up to date, and made easily findable by visitors to their webpages. Agencies would do well to follow the ACUS recommendation when implementing the new White House order on guidance.
The ACUS recommendation, combined with the research report on which it was based, also provides agencies with a number of helpful best practices to consider implementing, such as:
Providing a dedicated guidance webpage containing a searchable database or a comprehensive list or index of guidance documents.
Assigning each guidance document a unique identification number, similar to the regulatory identification number already used by agencies to keep track of regulations.
Presenting guidance documents in downloadable form such as a PDF file.
Using straightforward language when describing guidance documents, and explaining clearly that these documents do not make law or bind the public.
Reaching out to alert interested members of the public to new and revised guidance documents.
The ACUS recommendation also encourages agencies to seek feedback from the public about whether their guidance documents are accessible and to engage in periodic evaluation efforts to determine whether agencies’ accessibility efforts are working.
Ultimately, ensuring guidance accessibility demands that agencies meet a management challenge as much as a technological one. It requires agencies to devote ongoing attention and effort to tracking guidance internally and then to make sure those documents can be readily found by those who need them.
Such ongoing management efforts are worth it. If guidance is to help the public, it can only do so if the public can find it.
The U.S. Securities and Exchange Commission (SEC) disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This essay expresses the authors’ views only and does not necessarily reflect those of the Commission or other members of the SEC staff.