Public Availability of Agency Guidance

Government agencies produce thousands, if not millions, of advisory statements each year. Access to this guidance—expressed in Federal Register notices, website postings, speeches by agency heads, routine communications with individuals, and a wide variety of other pronouncements—is necessary to ensure that regulated entities and the public understand important aspects of how federal agencies interpret and apply the laws that they are charged with implementing.

This season, ACUS is working on a project to provide recommendations to agencies for how agencies can comply with publication requirements and make guidance documents most accessible to the public, especially by placing them on agency websites.

ACUS has previously encouraged agencies to make various types of guidance documents available online. Recommendation 2017-5 provided that “[a]ll written policy statements affecting the interests of regulated parties, regulatory beneficiaries, or other interested parties should be promptly made available electronically and indexed, in a manner in which they may readily be found.” Similarly, Recommendation 2018-5 recommended that agencies “provide updated access on their websites to all sources of procedural rules and related guidance documents and explanatory materials that apply to agency adjudications.”

On April 4, the Committee on Regulation held its first meeting to discuss a draft recommendation to agencies on how to make guidance publicly available. The recommendation provides best practices for agencies on how to put guidance online to facilitate accessibility and comprehensibility by readers. The draft recommendation urges regulators to take stock of their issued guidance documents; maintain a single website dedicated to the publication of guidance documents in a comprehensive, logical and easily comprehensible manner; and take affirmative steps to reach out to the public as to the usability of their websites and the publication of new guidance.

The Committee on Regulation will meet again on April 23. If the Committee votes to approve this recommendation and the Council places it on the plenary session agenda, the full Assembly will discuss and vote on the recommendation at the 71st Plenary Session in June.  If approved, ACUS staff will work with agencies to implement the recommendation and make guidance documents more accessible online.