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Bill seeks to enhance public participation in rulemaking

Joe Mont | March 8, 2017

A bill seeking to bring greater transparency and objectivity to the sausage-making of regulatory rulemaking has passed in the House of Representatives and now awaits a vote in the Senate.

The Regulatory Integrity Act, “would help restore the integrity of the federal government’s rulemaking process,” says Rep. Tim Walberg’s (R-Mich.), the bill’s sponsor. The proposed legislation recently passed with a 246-176 vote in the House.

The legislation would require federal agencies to post, in a central location, all communications they issue during the proposed rule stage “so that the public can fully participate and trust that the rulemaking process is neutral and unbiased. “

“The public comment period is a critical component of the rulemaking process, yet too often we’ve seen federal agencies treat it as a perfunctory step,” Walberg said. “The American people need to have confidence that federal agencies, regardless of whether it is a Republican or Democratic administration, are open to their insights and constructive criticism.”

The bill, he said, “will help restore the integrity of our regulatory process by ensuring agencies are honestly asking for feedback from the public, not advocating for a predetermined outcome.”

The Regulatory Integrity Act, Walberg added, “would increase transparency to help prevent future instances of misconduct like what occurred during the Environmental Protection Agency’s covert campaign efforts during the public rulemaking process for the Waters of the United States rule.”

In 2015, the New York Times reported that the EPA undertook “a campaign that tests the limits of federal lobbying law.” The nonpartisan Government Accountability Office concluded the EPA overstepped and issued a report that said the agency undertook “covert propaganda” and “grassroots lobbying” during the process.

In detail, the House bill requires that the head of each agency overseen by the Executive branch make publicly available, in a searchable format —in a prominent  location either on its website or in the rulemaking docket on Regulations.gov —the following information: pending agency regulatory actions; the date on which the agency first began to develop or consider each action; the status of eachaction; an estimate of the date of upon which the agency regulatory action will be final and in effect; a brief description of the action; and, if applicable, a list of regulatory actions, issued by the executive agency, or any other agency, that  duplicate or overlap with the current regulation.

For each pending agency regulatory action, a list of each public communication must be documented, including the date of the communication; the intended audience; the method of communication; a copy of the original communication. The head of each covered agency would be required to publish the information no later than 24 hours after a public communication relating to a pending agency regulatory action is issued and shall maintain that record for at least five years after the date on which the pending agency regulatory action is finalized.

Any public communication issued by an agency that refers to a pending agency regulatory action shall specify: whether it is considering alternatives; and whether it is accepting or will be accepting comments.

Any public communication issued by an executive agency that refers to a pending regulatory action may not directly advocate, in support of or against the pending agency regulatory action. Agencies would be prohibited from appealing to the public, or soliciting a third party, to undertake advocacy in support of or against the pending agency regulatory action; or be directly or “indirectly for publicity or propaganda purposes within the U.S. unless otherwise authorized by law.”