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[House Report 114-183]
[From the U.S. Government Publishing Office]

 114th Congress   {                                 }         Report
 1st Session      {    HOUSE OF REPRESENTATIVES     }          114-183
======================================================================
 
       PROVIDING ACCOUNTABILITY THROUGH TRANSPARENCY ACT OF 2015

                                _______
                                

 June 25, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 690]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 690) to require each agency, in providing notice of 
a rule making, to include a link to a 100 word plain language 
summary of the proposed rule, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     2
Committee Consideration..........................................     2
Committee Votes..................................................     2
Committee Oversight Findings.....................................     2
New Budget Authority and Tax Expenditures........................     2
Congressional Budget Office Cost Estimate........................     2
Duplication of Federal Programs..................................     3
Disclosure of Directed Rule Makings..............................     4
Performance Goals and Objectives.................................     4
Advisory on Earmarks.............................................     4
Section-by-Section Analysis......................................     4
Changes in Existing Law Made by the Bill, as Reported............     4
Dissenting Views.................................................     6

                          Purpose and Summary

    The ``Providing Accountability Through Transparency Act of 
2015'' improves communication to the public about planned, new 
Federal regulations by requiring that general notices of 
proposed rulemaking include the Internet address of a plain-
language summary, not exceeding 100 words, of the proposed 
rule. That summary must, in addition, be posted on the 
``regulations.gov'' website.

                Background and Need for the Legislation

    A common complaint about Federal regulations and the 
explanatory agency notices published with them is that they are 
too difficult for ordinary citizens and business owners to 
understand without enlisting professional help. The bill seeks 
to rectify that through a common-sense requirement that 
agencies always publish online a 100-word summary of a proposed 
new regulation when the regulation is proposed. This 
requirement will facilitate public understanding of new 
proposed rules and help to inform public comments offered in 
response to notices of proposed rulemaking.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
690.

                        Committee Consideration

    On March 24, 2015, the Committee met in open session and 
ordered the bill H.R. 690 favorably reported without amendment, 
by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 690.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 690, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 6, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 690, the 
``Providing Accountability Through Transparency Act of 2015.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member

  H.R. 690--Providing Accountability Through Transparency Act of 2015.

      As ordered reported by the House Committee on the Judiciary 
                           on April 6, 2015.

    H.R. 690 would amend Federal law to require agencies to 
post on the regulations.gov website, the Internet address to a 
summary of every proposed rule. Under the bill, those summaries 
would have to be no more than 100 words in length. CBO 
estimates that implementing H.R. 690 would have no significant 
cost over the next five years. The bill would affect direct 
spending by agencies not funded through annual appropriations; 
therefore, pay-as-you-go procedures apply. CBO estimates, 
however, that any net increase in spending by those agencies 
would not be significant. Enacting H.R. 690 would not affect 
revenues.
    Executive Orders 12866, 13563, and the June 1, 1998, 
Presidential Memorandum on Plain Language already require 
agencies to use plain language in all proposed and final rules. 
CBO expects that preparing the short summary of proposed rules 
under H.R 690 would not significantly increase agencies' 
administrative costs.
    H.R. 690 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 690 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 690 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
690 is intended to improve public understanding of proposed new 
regulations.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 690 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Providing Accountability Through 
Transparency Act of 2015.''
    Sec. 2. Requirement to Post a 100 Word Summary to 
regulations.gov. Section 2 amends the Administrative Procedure 
Act at 5 U.S.C. 553(b) to require that general notices of 
proposed rulemaking issued by Federal agencies include the 
Internet address of a plain-language summary, not exceeding 100 
words, of the proposed rule, and that the summary be posted on 
the regulations.gov website. That website is maintained by the 
Federal Government pursuant to the E-Government Act of 2002 (44 
U.S.C. 3501 note).

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *
PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *

CHAPTER 5--ADMINISTRATIVE PROCEDURE

           *       *       *       *       *       *       *

Subchapter II--ADMINISTRATIVE PROCEDURE

           *       *       *       *       *       *       *

Sec. 553. Rule making

    (a) This section applies, according to the provisions 
thereof, except to the extent that there is involved--
            (1) a military or foreign affairs function of the 
        United States; or
            (2) a matter relating to agency management or 
        personnel or to public property, loans, grants, 
        benefits, or contracts.
    (b) General notice of proposed rule making shall be 
published in the Federal Register, unless persons subject 
thereto are named and either personally served or otherwise 
have actual notice thereof in accordance with law. The notice 
shall include--
            (1) a statement of the time, place, and nature of 
        public rule making proceedings;
            (2) reference to the legal authority under which 
        the rule is proposed[; and];
            (3) either the terms or substance of the proposed 
        rule or a description of the subjects and issues 
        involved[.]; and
            (4) 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);
Except when notice or hearing is required by statute, this 
subsection does not apply--
            (A) to interpretative rules, general statements of 
        policy, or rules of agency organization, procedure, or 
        practice; or
            (B) when the agency for good cause finds (and 
        incorporates the finding and a brief statement of 
        reasons therefor in the rules issued) that notice and 
        public procedure thereon are impracticable, 
        unnecessary, or contrary to the public interest.
    (c) After notice required by this section, the agency shall 
give interested persons an opportunity to participate in the 
rule making through submission of written data, views, or 
arguments with or without opportunity for oral presentation. 
After consideration of the relevant matter presented, the 
agency shall incorporate in the rules adopted a concise general 
statement of their basis and purpose. When rules are required 
by statute to be made on the record after opportunity for an 
agency hearing, sections 556 and 557 of this title apply 
instead of this subsection.
    (d) The required publication or service of a substantive 
rule shall be made not less than 30 days before its effective 
date, except--
            (1) a substantive rule which grants or recognizes 
        an exemption or relieves a restriction;
            (2) interpretative rules and statements of policy; 
        or
            (3) as otherwise provided by the agency for good 
        cause found and published with the rule.
    (e) Each agency shall give an interested person the right 
to petition for the issuance, amendment, or repeal of a rule.

           *       *       *       *       *       *       *

                            Dissenting Views

                              INTRODUCTION

    No one disputes the need to make the Federal rulemaking 
process more transparent and readily accessible by the public. 
Fortunately, the Federal Government has made great strides in 
recent years with the implementation of Regulations.gov, a 
publicly accessible website that greatly facilitates both goals 
by tracking the Federal rulemaking process and posting comments 
received from the public. H.R. 690, the ``Providing 
Accountability Through Transparency Act of 2015,'' would 
require the general notice of proposed rulemaking by a Federal 
agency to include a link via the Internet of a plain-language 
summary of the proposed rule, not to exceed 100 words, which 
must be posted on the Regulations.gov website. While this 
measure appears to be generally modest in scope, it presents 
several potentially troubling concerns. First, there already 
are various requirements in effect that direct a notice of a 
proposed rulemaking to include a plain-language summary of the 
rule. Second, it is unclear whether an extremely complex rule 
that in its published form consumes more than 50 pages in the 
Federal Register can be adequately summarized in 100 words. 
Finally, H.R. 690 would subject an agency's compliance with 
this new requirement to judicial review and thereby delay the 
finalization of a proposed rule. Accordingly, we feel compelled 
to note these concerns and hope they will be taken into 
consideration.

                       DESCRIPTION AND BACKGROUND

    Section 206(d) of the E-Government Act of 2002\1\ requires 
the Federal Government to maintain a publicly accessible 
website containing the electronic dockets for rulemakings under 
section 553 of the Administrative Procedure Act (APA).\2\ The 
website, Regulations.gov, posts proposed and final regulations, 
notices, scientific and technical findings, guidance documents, 
and other materials.\3\ It also allows members of the public to 
comment on proposed rules and makes those comments available 
online.
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    \1\44 U.S.C. Sec. 3501 note (2015).
    \2\5 U.S.C. Sec. 553 (2015).
    \3\Regulations.gov: Frequently Asked Questions, General 
Information, What Can I Find on this Site, available at http://
www.regulations.gov/#!faqs (last visited Mar. 20, 2015).
---------------------------------------------------------------------------
    In sum, H.R. 690 amends section 553(b) of the APA\4\ which 
sets forth various requirements pertaining to a notice of a 
proposed rulemaking. As amended by the bill, section 553 would 
require the general notice of proposed rulemaking by a Federal 
agency to include a link via the Internet of a plain-language 
summary of the proposed rule, not to exceed 100 words, which 
must be posted on the Regulations.gov website.
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    \4\5 U.S.C. Sec. 553(b) (2015).
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                                CONCERNS

          I. NOTICES OF PROPOSED RULEMAKINGS ALREADY REQUIRE 
                        PLAIN-LANGUAGE SUMMARIES

    Notices of proposed rulemakings are already required to 
include plain-language summaries pursuant to multiple 
legislative and executive directives. To begin with, section 
553(b) of the APA specifies various requirements pertaining to 
such notices, including the directive to describe the ``terms 
or substance of the proposed rule or a description of the 
subjects and issues involved.''\5\ Second, the Code of Federal 
Regulations requires a notice of a proposed rulemaking to 
include a preamble understandable by a person ``who is not an 
expert in the subject area'' that contains a summary consisting 
of ``[b]rief statements, in simple language of: (i) the action 
being taken; (ii) the circumstances which created the need for 
the action; and (iii) the intended effect of the action.).''\6\ 
Third, the Plain Writing Act of 2010 requires agencies to ``use 
plain writing'' for certain specified documents,\7\ which has 
been interpreted to apply to preambles for proposed rules.\8\ 
Fourth, the Federal Register Document Drafting Handbook 
requires such notice to include a summary of the rule as 
published in the Federal Register and directs agencies to ``use 
language a non-expert will understand.''\9\
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    \5\5 U.S.C. Sec. 553(b)(3) (2015).
    \6\1 C.F.R. Sec. 18.12 (2015).
    \7\Pub. L. No. 111-274, 124 Stat. 2861 (2010). The Act defines 
``plain writing'' as ``writing that is clear, concise, well-organized, 
and follows other best practices appropriate to the subject or field 
and intended audience.'' Id. at Sec. 3(3).
    \8\See Executive Office of the President--Office of Management and 
Budget, Memorandum for Heads of Executive Departments and Agencies 
(Jan. 4, 2012).
    \9\National Archives and Record Administration, Federal Register 
Document Drafting Handbook, at 1-8 (Oct. 1998). The Handbook provides 
as follows:

      Under the SUMMARY caption you explain the ``what,'' 
      ``why,'' and ``effect'' of the document. In the SUMMARY, 
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      you must answer these three questions:

           GWhat action is being taken?

           GWhy is this action necessary?

           GWhat is the intended effect of this action?

      Use the following guidelines in preparing a SUMMARY.

           GUse language a non-expert will understand.

           GDescribe what the document does, not how it 
      affects the CFR.

           GRefer to an act of Congress by the popular 
      name of the act.

           GDo not use legal citations.

           GState what your document does; do not include 
      regulatory history or extensive background.

           GDo not include qualifications, exceptions, or 
      specific details.

           GBe brief.

Id.
    The Obama administration has reinforced these requirements 
by the issuance of Executive Order 13563, Improving Regulation 
and Regulatory Review, which requires regulations to be 
``accessible, consistent, written in plain language, and easy 
to understand.''\10\ Further, the Office of Management and 
Budget, on January 4, 2012, issued guidance to agencies 
directing them to include in the notice of rulemakings 
``straightforward executive summaries'' in order ``[t]o promote 
public understanding.''\11\ The Guidance specifies that 
``[t]hese summaries should separately describe major provisions 
and policy choices.''\12\
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    \10\Exec. Order No. 13,563, 76 Fed. Reg. 3,821 (Jan. 21, 2011).
    \11\Executive Office of the President--Office of Management and 
Budget, Memorandum for Heads of Executive Departments and Agencies 
(Jan. 4, 2012).
    \12\Id.
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    The proponents of this legislation have not cited any 
instances where agencies have failed to comply with these 
directives, although a recent study appears to suggest that 
full compliance with them has not yet been achieved.\13\ 
Nevertheless, the authors of this study warn:
---------------------------------------------------------------------------
    \13\Cynthia R. Farina et al., The Problem with Words: Plain 
Language and Public Participation in Rulemaking, Cornell L. School 
Legal Studies Research Paper Series No. 15-08, at 34 (to be published 
in forthcoming Geo. Wash. L. Rev. (2015)).

        Simply adding more mandates to write comprehensible 
        rulemaking documents (or at least comprehensible 
        shorter versions of those documents) is clearly not the 
        answer. Agencies are now, and have for some time been, 
        subject to multiple directives from Congress, the White 
        House, and the Federal Register to write preambles and 
        summaries that can be understood by people who are not 
        experts in the area.\14\
---------------------------------------------------------------------------
    \14\Id.

We therefore question whether yet another directive, as imposed 
by H.R. 690, will, in fact, accomplish the goal of making the 
current rulemaking process more transparent and understandable 
to the public.

        II. H.R. 690'S 100-WORD LIMIT MAY PROVE TO BE UNWORKABLE

    Proposed rules are published in the Federal Register. A 
printed page in the Federal Register consists of three columns 
of text in small print, containing about 1,000 words per 
page.\15\ The mean length of notices for complex rulemakings is 
approximately 50 Federal Register pages.\16\
---------------------------------------------------------------------------
    \15\Id. at 20.
    \16\Id.
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    As previously noted, H.R. 690 would require the general 
notice of proposed rulemaking issued by a Federal agency to 
include a link via the Internet of a plain-language summary of 
the proposed rule that may not exceed 100 words and which must 
be posted on the Regulations.gov website. An issue presented by 
the bill is with respect to its application to extremely 
complex rulemakings--which can be 50 pages or more in length 
when published in the Federal Register--and whether the 
measure's 100-word summary limit is overly restrictive in such 
instances. For example, the first sentence of this paragraph--
which attempts to summarize this two-page bill--is nearly 50 
words in length.
    Thus, we are concerned that an inflexible, one-size-fits-
all word limit could cause a summary to give the public an 
incomplete or potentially misleading explanation of a proposed 
rule, which would appear to be the opposite of what H.R. 690's 
proponents intend

    III. H.R. 690 WOULD TRIGGER JUDICIAL REVIEW AND THEREBY FURTHER 
                    SLOWDOWN THE RULEMAKING PROCESS

    Many in the administrative law community, as well as 
consumer advocacy and environmental protection organizations, 
are concerned about the length of time it takes for a 
rulemaking to become finalized. As one leading administrative 
law academic explains:

        Many scholars have long maintained that the process of 
        issuing rules through the use of the notice and comment 
        procedure described in Sec. 553 of the Administrative 
        Procedure Act has become ``ossified.'' By this they 
        mean that it takes a long time and an extensive 
        commitment of agency resources to use the notice and 
        comment process to issue a rule. Proponents of the 
        ossification hypothesis identify many adverse effects 
        of this ossification of the rulemaking process. Most of 
        these proponents attribute the ossification of the 
        rulemaking process primarily to the courts, with 
        secondary roles for Congress and the White House.\17\
---------------------------------------------------------------------------
    \17\Richard J. Pierce, Jr., Rulemaking Ossification Is Real: A 
Response to Testing the Ossification Thesis, Geo. Wash. L. Rev. 1493, 
1493-94 (2012) (citations omitteed).

    The reference to ``the courts'' in the quoted material 
above underscores the fact that certain aspects of the 
rulemaking process are subject to judicial review pursuant to 
section 706 of the APA. Unless otherwise prohibited by law, 
section 706 authorizes a court ``to hold unlawful and set aside 
agency action, findings, and conclusions,'' pursuant to certain 
grounds set out in that provision.\18\ These grounds apply to 
agency action found to be:
---------------------------------------------------------------------------
    \18\5 U.S.C. Sec. 706 (2015).

        (A) arbitrary, capricious, an abuse of discretion, or 
---------------------------------------------------------------------------
        otherwise not in accordance with law;

        (B) contrary to constitutional right, power, privilege, 
        or immunity;

        (C) in excess of statutory jurisdiction, authority, or 
        limitations, or short of statutory right;

        (D) without observance of procedure required by law;

        (E) unsupported by substantial evidence in a case 
        subject to sections 556 and 557 of this title or 
        otherwise reviewed on the record of an agency hearing 
        provided by statute; or

        (F) unwarranted by the facts to the extent that the 
        facts are subject to trial de novo by the reviewing 
        court.\19\
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    \19\Id.

    Our concern is that H.R. 690 would provide yet another way 
for opponents of a proposed rulemaking to delay or derail its 
finalization on the ground that a summary was somehow ``not in 
accordance with law'' or not in ``observance of procedure,'' 
for example.\20\
---------------------------------------------------------------------------
    \20\Id.
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                               CONCLUSION

    We are concerned that H.R. 690 may have some unintended 
consequences. Instead of making the rulemaking process more 
transparent, accessible, and understandable to the public, the 
bill could result in the opposite. We ask that H.R. 690's 
proponents work with us to help ameliorate these unintended 
consequences prior to floor consideration.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Mr. Richmond.
                                   Mr. Cicilline.
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