A critical piece missing from Sen. Lankford’s regulation reform package

A “package of regulatory improvement bills” recently introduced by Sen. James Lankford (R-Okla.) represents a commendable and ambitious reform effort to increase government transparency and expand public engagement.

The senators’ legislative initiatives chart a coherent approach to modernizing the seventy-year-old regulatory system created by the Administrative Procedures Act (APA), sorely in need of reform based on lessons learned about what works well for the American people, and what doesn’t.

While the new set of bills goes a long way in the right direction, it could push further in terms of leveraging data analytics technologies and best practices which have evolved since formation of today’s regulatory state.

But first, a little on the positive innovations which the various parts of Senator Lankford’s legislative package would introduce.

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The Early Participation in Regulations Act would require agencies to publish an advance notice of proposed rule-making for major rules in the Federal Register at least 90 days before publication of official notices, with few exceptions. This measure alone would almost certainly serve to increase public participation, enabling businesses and individuals more lead time to study issues and prepare comments for consideration by rule-makers.

 

Secondly, the Providing Accountability Through Transparency Act of 2017 would simply require agencies to provide a 100-word plain language summary with each general notice of proposed rule-making. It’s difficult to imagine how anyone in favor of a more transparent regulatory system, widely accessible to public comment as required by the APA, would dispute the clear benefits of this common-sense approach.

(It would be easy in this regard to take a jab at lawyers and their proverbial inability or unwillingness to speak or write in plain language, but as a former federal prosecutor I will resist the temptation to condemn my colleagues. Suffice it so say, regulations and proposed rules must be stated in plain language for the regulatory system to meet its obligation of accessibility for average citizens).

A third part of the senator’s package, the Truth in Regulations Act of 2017, would close loopholes in the system through which agencies sometimes bypass public participation altogether, by claiming “good cause” exceptions to the APA and/or issuing “guidance directives.” End-running the notice and comment process this way, agencies too frequently mandate rules without an opportunity for affected businesses and individuals to have any say.

Lastly, the Better Evaluation of Science and Technology (BEST) Act seeks to require all federal regulating agencies that use “scientific” information (not specifically defined in the bill) to apply the same rigorous standards currently found in the Toxic Substances Control Act.

BEST would require a more complete documentation and explanation of methods used in every case where scientific data is used to support a given rule, including underlying assumptions and the degree of data clarity. In effect, the BEST Act would make the federal rule-making process reflect traditional peer-review processes which form the intellectual court of scientific opinion around the world.

And here is where Senator Lankford’s package could go further still, by calling for standardization of data formats and collection practices across all regulatory agencies. Even mandating requirements for public submissions to include simple metadata such as commenters’ zip codes would make them extremely more valuable to enable geospatial insights, for example.

Beyond standardization of data and requirements for inclusion of some basic additional information with comments, requiring all federal agencies to participate in the rule-making process would increase accessibility of regulatory data for all participants in the system, both regulators and the regulated.

Currently, agency heads are permitted to choose whether or not their organizations participate in rule-making. Since the program’s inception in 2003, only 178 of the more than 300 federal agencies are fully participating. Among those which have elected to maintain their own siloed systems, with unique formats and public interfaces, are some of the nation’s most important agencies and commissions, including the FCC, FERC, and SEC.

Ad-hoc participation in rule-making misses a big opportunity for greater transparency and accountability in the federal rule-making process, Senator Lankford’s state purpose in introducing his regulatory package.

It goes without saying Capitol Hill works at its own pace through a uniquely complex web of relationships and interests, but as long regulatory reform packages are being put together, why not add one more critical piece to this one?

If not now, when?

John W. Davis II, is founder and chief executive officers of N&C, provider of the regulatory data analytics solution Regendus. Davis previously served as director of the Homicide and Major Crimes Bureau as federal prosecutor for the U.S. Virgin Islands Justice Department.


The views expressed by contributors are their own and are not the views of The Hill.