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REGWRITER ALERT: Amendment to the APA (ยง 553) to Require Plain Language Summary of Proposed Rules on Regulations.gov

January 2, 2024

On July 25, 2023, the Administrative Procedure Act was amended when President Biden signed into law the “Providing Accountability Through Transparency Act of 2023.” (https://www.regulationwriters.com/downloads/PL118-9-APA.pdf) This amendment adds paragraph (b)(4) to 5 U.S.C. § 553, which requires agencies to include in their notices of proposed rulemaking “the Internet address of a summary of not more than 100 words in length of the proposed rule, in plain language, that shall be posted on the Internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov).”

Agencies are already required by President Clinton’s 1998 Plain Language Memo (https://www.regulationwriters.com//downloads/PlainLanguage-Memo1998.pdf) and Obama’s Executive Order 13563 (https://www.regulationwriters.com/downloads/EO13563.pdf) (in addition to multiple other statutes, executive orders, and OMB guidance) to write their regulations in plain language.

 

 If agencies follow the Office of the Federal Register’s guidance on writing their summary paragraphs, then the summary paragraph should suffice for the plain language summary. Agencies should include a statement in the proposed rule preamble stating that the plain language summary of the proposal is available on Regulations.gov in the docket for the rulemaking. On Regulations.gov, under the “Docket Details” tab the agency can post an “abstract” about the docket. Agencies should use their summary paragraph for the “Abstract” field. Even if the agency does not have text in the “abstract” field on Regulations.gov, the presence of the agency’s proposed rule in the docket should suffice for satisfying the statutory requirement. That same plain language summary will also appear in the Unified Agenda, which is also accessible from Regulations.gov.

 

 If properly written, the summary paragraph should already be in plain language and should be no more than 100 words. Here is what the Office of the Federal Register (OFR) says about the summary paragraph in the Document Drafting Handbook (https://www.archives.gov/federal-register/write/ddh):

 

 

“In SUMMARY, you explain the “what,” “why,” and “effect” of the document within the Federal Register/CFR publication system (see Example 2-3). Your SUMMARY should not be longer than a paragraph and must answer these three questions:

• What action is being taken?

• Why is this action necessary?

• What is the intended effect of this action?”

Agencies should be able to answer these three questions in three or four sentences, and within 100 words. The summary paragraph required by the OFR should be just a simple blurb or an abstract. When appropriate, instead of having a lengthy summary paragraph, agencies should include a more detailed summary in an “Executive Summary,” as required by OIRA Memo of January 4, 2012, and it should appear under Supplementary Information section of their preamble. (https://www.regulationwriters.com/downloads/OIRA-Memo-clarifying-regulatory-requirements_executive-summaries.pdf)

 

If agencies are currently following OFR guidelines and best practice, a plain language summary should appear on Regulations.gov three times, in the proposed rule, in the Abstract field, and in their Unified Agenda statement (which is linked to the Docket in Regulations.gov).