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115th Congress }                                              { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                              { 115-15

======================================================================
 
                    REGULATORY INTEGRITY ACT OF 2017

                                _______
                                

 February 21, 2017.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1004]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 1004) to amend chapter 3 of title 
5, United States Code, to require the publication of 
information relating to pending agency regulatory actions, and 
for other purposes, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     5
Explanation of Amendments........................................     5
Committee Consideration..........................................     5
Roll Call Votes..................................................     5
Application of Law to the Legislative Branch.....................     7
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     7
Statement of General Performance Goals and Objectives............     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Federal Advisory Committee Act...................................     7
Unfunded Mandate Statement.......................................     7
Earmark Identification...........................................     7
Committee Estimate...............................................     8
Budget Authority and Congressional Budget Office Cost Estimate...     8
Changes in Existing Law Made by the Bill, as Reported............     9
Minority Views...................................................    12

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 1004, the Regulatory Integrity Act of 2017, seeks to 
provide transparency of the proposed rule process by requiring 
federal agencies to post in a central location all public 
comments the agency makes about a proposed rule during the 
proposed rule stage. The bill also prohibits agencies from 
actively soliciting support for a proposed rule during the 
phase that is meant to gather public input on possible 
regulatory action. Under H.R. 1004, federal agencies are 
required to tell the public whether they are considering 
alternatives or soliciting feedback during the proposed rule 
stage, and agencies are prohibited from making statements that 
directly advocate for or against any pending regulatory action 
or solicit support for the pending regulatory action.

                  BACKGROUND AND NEED FOR LEGISLATION

    Congress unanimously\1\ enacted the Administrative 
Procedures Act (APA) in 1946 to ensure that the public had an 
opportunity to provide expertise, opinions, and other 
comments.\2\ As then-Chairman of the Senate Judiciary Committee 
Pat McCarran explained, the APA ``is a bill of rights for . . . 
Americans whose affairs are controlled or regulated in one way 
or another by agencies of the Federal Government. It is 
designed to provide guaranties of due process in administrative 
procedure.''\3\ Former Attorney General Tom C. Clark described 
the purposes of the bill as to ``require agencies to keep the 
public currently informed of their organization, procedures and 
rules,'' and to ``provide for public participation in the rule 
making process.''\4\
---------------------------------------------------------------------------
    \1\S. Doc. 248, Administrative Procedure Act Legislative History, 
Sen. Doc. 248, 79th Cong. 2d Sess. (1946)
    \2\5 U.S.C. Sec. 551 et seq.
    \3\79 Cong. Rec. 2148-67 (1946) (statement of Sen. McCarran).
    \4\Attorney General's Manual on the Administrative Procedure Act 
(1947), available at https://archive.org/details/
AttorneyGeneralsManualOnTheAdministrativeProcedureActOf1947.
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    The broad language of the APA and the massive growth of 
Federal agency rulemaking\5\ has caused many to perceive the 
rulemaking process as dominated by special interest groups and 
largely beyond the reach of the average American.\6\ This shift 
away from the intent of the APA has meant that most of the 
agency deliberations are carried out without a record or public 
review.\7\ As Supreme Court Justice Elena Kagan noted during 
her academic career, ``[t]he APA contains no prohibitions on ex 
parte contacts between agency personnel and outside persons in 
notice-and-comment rulemaking.''\8\ H.R. 1004 addresses this 
concern by requiring agencies to increase transparency measures 
regarding communications to the public.
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    \5\The Administrative State: An Examination of Federal Rulemaking: 
Hearing Before the S. Comm. on Homeland Security & Governmental 
Affairs, 114th Cong. 2 (2016) (written statement of Jonathan Turley, 
Shapiro Professor of Public Interest Law, George Washington University 
Law School) (hereinafter Administrative State). Currently there are 
approximately 2,840,000 federal workers in 15 departments, 69 agencies, 
and 383 nonmilitary sub-agencies. Id.
    \6\See, e.g., Stuart M. Benjamin, EVALUATING E-RULEMAKING: PUBLIC 
PARTICIPATION AND POLITICAL INSTITUTIONS, 55 Duke L. J. 895 (2006); 
Cornelius M. Kerwin, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND 
MAKE POLICY 113, 189 (3d ed. 2003).
    \7\Administrative State.
    \8\Elena Kagan, Presidential Administration, 114 Harv. L. Rev.2245, 
2280 n.142 (2001).
---------------------------------------------------------------------------
    The demand for legislation of this type to ensure 
transparency and public participation in the informal 
rulemaking process has thus been widespread and consistent over 
a period of many years. United States v. Texas is an alarming 
example of how agencies operate independently from the public 
in promulgating regulations that affect our society and economy 
in fundamental ways.\9\ Despite the APA's notice-and-comment 
requirements being repeatedly enforced by the courts as a 
precondition for rules to have the force of law, the U.S. 
Department of Homeland Security (DHS) simply chose to forego 
this process and issue a November 20, 2014 directive setting 
forth the provisions of the Deferred Action for Parents of 
Americans and Lawful Permanent Residents (DAPA).\10\ In United 
States v. Texas, there was no advance notice or comment 
period--a violation found by the district court.\11\ When 
challenged over the circumvention of the notice-and-comment 
requirements of the APA, the Administration ``simply declared 
that the enormous program affecting the status of millions of 
undocumented persons fell within an exception for `general 
statements of policy.'''\12\
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    \9\Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015); see 
also Texas v. United States, 787 F.3d 733 (5th Cir. 2015).
    \10\See Memorandum from Jeh Johnson, Secretary, Dep't of Homeland 
Security, to Leon Rodriguez, Director, U.S. Citizenship & Imm. Serv., 
Thomas A. Winkowski, Acting Director, U.S. Imm. & Customs Enforcement, 
R. Gil Kerlikowske, Commissioner, U.S. Customs & Border Protection, on 
Exercising Prosecutorial Discretion with Respect to Individuals Who 
Came to the United States as Children and with Respect to Certain 
Individuals Who Are the Parents of U.S. Citizens or Permanent Residents 
(Nov. 20, 2014), www.dhs.gov/sites/default/files/publications/
14_1120_memo_deferred--action.pdf.
    \11\Texas, 86 F. Supp. 3d at 591.
    \12\Administrative State.
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    In addition to the issues surrounding transparency and 
public participation in agency rulemaking demonstrated by 
United States v. Texas, agencies have further undermined the 
purpose and spirit of the notice-and-comment process by 
actively campaigning for support of their proposals.\13\ As an 
example, after issuing the Waters of the United States (WOTUS) 
notice of proposed rulemaking, the Environmental Protection 
Agency (EPA) undertook a public campaign utilizing certain 
social media platforms to solicit support for what, at the 
time, was a proposed rule.\14\ During the public comment 
period, the EPA used social media platforms to communicate 
about the proposed rule and solicit support for their specific 
proposal.\15\
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    \13\GAO defines self-aggrandizement as publicity of a nature 
tending to emphasize the importance of the agency or activity in 
question, noting that one of the prohibition's primary targets is 
communication with an obvious purpose of puffery. Letter from Susan A. 
Poling, Gen. Counsel, U.S. Gov't Accountability Office, to the Hon. 
James M. Inhofe, Chairman, S. Comm. on Env. & Public Works (Dec. 14, 
2015) (on file with author) (hereinafter GAO Letter).
    \14\GAO Letter.
    \15\Id.
---------------------------------------------------------------------------
    In response to concerns raised about possible misuse of 
federal funds, GAO issued a report finding that the EPA 
violated publicity or propaganda and anti-lobbying provisions 
concerning the use of its FY 2014 and FY 2015 appropriations. 
The report also found the EPA's misuse of taxpayer dollars 
raised ``a question about self-aggrandizement because certain 
posts described what EPA declared as benefits . . . and 
attributed such benefits to the agency's new rule.''\16\
---------------------------------------------------------------------------
    \16\Id.
---------------------------------------------------------------------------
    Specifically, GAO identified four problematic social media 
campaigns run by the EPA with regard to WOTUS rulemaking: (1) 
Thunderclap,\17\ (2) the #DitchtheMyth Campaign, (3) the 
#CleanWaterRules Campaign, and (4) EPA's Links to External 
Websites. Through each of these campaigns, the EPA ``appealed 
to the public to contact Congress in opposition to pending 
legislation in violation of the grassroots lobbying 
prohibition.''\18\ Of perhaps greater concern, through these 
campaigns the EPA oversimplified an immensely complicated rule 
in order to solicit support for its rule, leaving the public 
misinformed.\19\
---------------------------------------------------------------------------
    \17\Thunderclap is a ``crowdspeaking platform'' that allows a 
single message to be shared across multiple Facebook, Twitter, and 
Tumbler accounts at the same time. GAO Letter.
    \18\GAO Letter at 18.
    \19\See, e.g., GAO Letter at 20; Waters of the United States: 
Stakeholder Perspectives on the Impacts of EPA's Proposed Rule: Hearing 
Before the S. Comm. on Agric., Nutrition & Forestry, 114th Cong. (2016) 
(statement of the Hon. Leslie Rutledge, Attorney Gen., Arkansas).
---------------------------------------------------------------------------
    Through its study, GAO found multiple instances where the 
EPA violated the spirit of the APA, as well as grassroots 
lobbying prohibitions, by engaging in self-aggrandizement 
without properly identifying EPA as the author.\20\ In finding 
that the Thunderclap campaign ``constituted covert 
propaganda,'' GAO specifically noted that the ``EPA created a 
Thunderclap message that did not identify EPA as the author,'' 
leaving the estimated 1.8 million individuals the message 
reached entirely unaware ``that the message was prepared and 
disseminated by EPA.''\21\ Further, in linking ``external 
websites belonging to environmental action groups to support 
statements made in [EPA's] blog, the EPA made ``clear appeals 
to the public to contact Congress at a time when legislation to 
prevent implementation of the WOTUS rule was pending.'' In 
doing so, GAO found that ``this association combined with the 
clear appeals actually contained in the webpages . . . form 
prohibited conduct.''\22\
---------------------------------------------------------------------------
    \20\GAO Letter.
    \21\GAO Letter at 12.
    \22\GAO Letter at 24.
---------------------------------------------------------------------------
    The Regulatory Integrity Act of 2017 helps ensure 
transparency in the rulemaking process by prohibiting federal 
agencies from anonymously issuing statements for propaganda 
purposes. Specifically, H.R. 1004 requires agencies to make 
available online information about public communications on 
pending regulatory actions.\23\ Further, H.R. 1004 requires 
that agencies ``expressly disclose that the Executive agency is 
the source of the information to the intended recipients,'' and 
prohibits agencies from ``solicit[ing] support for or 
promot[ing] . . . pending agency regulatory action.'' Finally, 
H.R. 1004 creates a heightened standard of self-
aggrandizement.\24\
---------------------------------------------------------------------------
    \23\H.R. 5226, 114th Cong. Sec. 307(a) (2016).
    \24\H.R. 5226, 114th Cong. Sec. 307(a)(2)(A)-(B) (2016) (defining 
aggrandizement as ``any communication emphasizing the importance of the 
Executive agency or agency regulatory action that does not have the 
clear purpose of informing the public of the substance or status of the 
Executive agency or agency regulatory action; or any communication that 
is puffery'').
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                          LEGISLATIVE HISTORY

    Representative Tim Walberg (R-MI) introduced H.R. 1004 on 
February 13, 2017 and the bill was referred to the Committee on 
Oversight and Government Reform. On February 14, 2017, the 
Committee considered H.R. 1004 at a business meeting. The 
Committee ordered the bill reported favorably, without 
amendment, by a vote of 22 to 16.
    The Committee reported an identical bill, the Regulatory 
Integrity Act of 2016 (H.R. 5226), favorably in the 114th 
Congress. H.R. 5226 passed the U.S. House of Representatives by 
a vote of 250 to 171 on September 14, 2016.

                           Section-by-Section


Section 1. Short title

    Section 1 establishes the short title as the ``The 
Regulatory Integrity Act of 2017.''

Section 2. Publication of information relating to pending regulatory 
        actions

    Section 2 adds a new section 307 on information regarding 
pending agency regulatory action to chapter 3 of title 5, 
United States Code.
    Subsection (a) of section 307 sets definitions for ``agency 
regulatory action,'' ``aggrandizement,'' ``public 
communication,'' and ``rule making.''
    Subsection (b) of section 307 requires agencies to make 
available online information about pending regulatory actions 
and the agency's public communications regarding pending 
regulatory actions.
    Subsection (c) of section 307 sets requirements for public 
communications about pending regulatory actions by requiring 
agencies to specify if they are considering alternatives or 
accepting comments. The agency must disclose if the agency is 
the source of the communication. This subsection also prohibits 
agencies from using any public communication issued by the 
agency to solicit support for the pending regulatory action and 
make statements of aggrandizement.
    Subsection (d) of section 307 requires agencies to annually 
report about public communication activity regarding pending 
regulatory actions.

                       Explanation of Amendments

    No amendments were offered.

                        Committee Consideration

    On February 14, 2017, the Committee met in open session and 
ordered reported favorably the bill, H.R. 1004, by a recorded 
vote, a quorum being present.

                            Roll Call Votes

    There was one roll call vote during consideration of H.R. 
1004:


              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill requires publication of information relating to 
pending agency regulatory actions. As such this bill does not 
relate to employment or access to public services and 
accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of this bill is to require the publication of 
information relating to pending agency regulatory actions.

                    Duplication of Federal Programs

    No provision of this bill 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 enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. 551.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 21, 2017.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1004, the 
Regulatory Integrity Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Keith Hall, Director.
    Enclosure.

H.R. 1004--Regulatory Integrity Act of 2017

    H.R. 1004 would direct each federal agency to make 
information regarding their regulatory actions publicly 
available in a searchable format on a prominent website. That 
information would have to include the date a regulation was 
considered, its current status, an estimate of when the 
regulation would be final, and a brief description of the 
regulation. In addition, agencies would be required to track 
the details of all public communications about pending 
regulatory actions. Because this information is already 
collected by regulatory agencies, CBO estimates that the cost 
of making it available online would not be significant.
    The bill could affect direct spending by agencies not 
funded though annual appropriations; therefore, pay-as-you-go 
procedures apply. CBO estimates, however, that any net increase 
in spending by those agencies would be negligible. Enacting 
H.R. 1004 would not affect revenues.
    CBO estimates that enacting H.R. 1004 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1004 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. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

         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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *


PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


                           CHAPTER 3--POWERS

Sec.
301. Departmental regulations.
     * * * * * * *
307. Information regarding pending agency regulatory action.

           *       *       *       *       *       *       *


Sec. 307. Information regarding pending agency regulatory action

  (a) Definitions.--In this section:
          (1) Agency regulatory action.--The term ``agency 
        regulatory action'' means guidance, policy statement, 
        directive, rule making, or adjudication issued by an 
        Executive agency.
          (2) Public communication.--The term ``public 
        communication''--
                  (A) means any method (including written, 
                oral, or electronic) of disseminating 
                information to the public, including an agency 
                statement (written or verbal), blog, video, 
                audio recording, or other social media message; 
                and
                  (B) does not include a notice published in 
                the Federal Register pursuant to section 553 or 
                any requirement to publish pursuant to this 
                section.
          (3) Rule making.--The term ``rule making'' has the 
        meaning given that term under section 551.
  (b) Information to Be Posted Online.--
          (1) Requirement.--The head of each Executive agency 
        shall make publicly available in a searchable format in 
        a prominent location either on the website of the 
        Executive agency or in the rule making docket on 
        Regulations.gov the following information:
                  (A) Pending agency regulatory action.--A list 
                of each pending agency regulatory action and 
                with regard to each such action--
                          (i) the date on which the Executive 
                        agency first began to develop or 
                        consider the agency regulatory action;
                          (ii) the status of the agency 
                        regulatory action;
                          (iii) an estimate of the date of upon 
                        which the agency regulatory action will 
                        be final and in effect; and
                          (iv) a brief description of the 
                        agency regulatory action.
                  (B) Public communication.--For each pending 
                agency regulatory action, a list of each public 
                communication about the pending agency 
                regulatory action issued by the Executive 
                agency and with regard to each such 
                communication--
                          (i) the date of the communication;
                          (ii) the intended audience of the 
                        communication;
                          (iii) the method of communication; 
                        and
                          (iv) a copy of the original 
                        communication.
          (2) Period.--The head of each Executive agency shall 
        publish the information required under paragraph (1)(A) 
        not later than 24 hours after a public communication 
        relating to a pending agency regulatory action is 
        issued and shall maintain the public availability of 
        such information not less than 5 years after the date 
        on which the pending agency regulatory action is 
        finalized.
  (c) Requirements for Public Communications.--
          (1) In general.--Any public communication issued by 
        an Executive agency that refers to a pending agency 
        regulatory action--
                  (A) shall specify whether the Executive 
                agency is considering alternatives;
                  (B) shall specify whether the Executive 
                agency is accepting or will be accepting 
                comments; and
                  (C) shall expressly disclose that the 
                Executive agency is the source of the 
                information to the intended recipients.
          (2) Restriction.--Any public communication issued by 
        an Executive agency that refers to a pending agency 
        regulatory action, other than an impartial 
        communication that requests comment on or provides 
        information regarding the pending agency regulatory 
        action, may not--
                  (A) directly advocate, in support of or 
                against the pending agency regulatory action, 
                for the submission of information to form part 
                of the record of review for the pending agency 
                regulatory action;
                  (B) appeal to the public, or solicit a third 
                party, to undertake advocacy in support of or 
                against the pending agency regulatory action; 
                or
                  (C) be directly or indirectly for publicity 
                or propaganda purposes within the United States 
                unless otherwise authorized by law.
  (d) Reporting.--
          (1) In general.--Not later than January 15 of each 
        year, the head of an Executive agency that communicated 
        about a pending agency regulatory action during the 
        previous fiscal year shall submit to each committee of 
        Congress with jurisdiction over the activities of the 
        Executive agency a report indicating--
                  (A) the number pending agency regulatory 
                actions the Executive agency issued public 
                communications about during that fiscal year;
                  (B) the average number of public 
                communications issued by the Executive agency 
                for each pending agency regulatory action 
                during that fiscal year;
                  (C) the 5 pending agency regulatory actions 
                with the highest number of public 
                communications issued by the Executive agency 
                in that fiscal year; and
                  (D) a copy of each public communication for 
                the pending agency regulatory actions 
                identified in subparagraph (C).
          (2) Availability of reports.--The head of an 
        Executive agency that is required to submit a report 
        under paragraph (1) shall make the report publicly 
        available in a searchable format in a prominent 
        location on the website of the Executive agency.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    Committee Democrats oppose H.R. 1004, the Regulatory 
Integrity Act, which would prohibit federal agencies from 
making any public communications about a pending agency 
regulatory action that could be interpreted as ``propaganda,'' 
seeking ``publicity,'' or direct advocacy. The bill would 
define public communication to include every oral, written, or 
electronic communication. Based on this expansive definition, 
virtually any action an agency might take to communicate the 
benefits of a rule could be viewed as advocating for the rule, 
publicity, or propaganda.
    The bill lacks specificity as to what is and is not a 
prohibited public communication. This could leave the public 
less informed about agency activities because agencies would 
likely restrict communications with the public in order to 
avoid the possibility of violating the ambiguous prohibitions 
the bill contains.
    For example, on February 13, 2017, the Department of Energy 
posted an entry on its blog about wind power stating that 
``wind represents a major opportunity to provide power to 
highly populated coastal cities,'' ``wind energy is 
affordable,'' and that ``by 2050, the United States has the 
potential to create 600,000 jobs, save consumers $149 billion, 
and save 260 billion gallons of water by continuing to increase 
the amount of wind energy that powers our homes, schools and 
businesses.''\1\ Under this bill, this blog entry could be 
prohibited as improper advocacy, propaganda, or publicity.
---------------------------------------------------------------------------
    \1\Department of Energy, Top Ten Things You Didn't Know about Wind 
Power (Feb. 13, 2017) (online at www.energy.gov/articles/top-10-things-
you-didnt-know-about-wind-power).
---------------------------------------------------------------------------
    Such a chilling effect on public communications runs 
counter to open government and contravenes the spirit and 
intent of the Administrative Procedure Act which promotes 
communication between agencies and the public.
    This bill is redundant in part, as it would prohibit 
agencies from encouraging public support of an agency action. 
Agency employees are already barred from engaging in 
``substantial `grass roots' lobbying campaigns . . . designed 
to encourage members of the public to pressure Members of 
Congress to support Administration or Department legislative or 
appropriations proposals.''\2\ The Appropriations Committee 
also typically includes language in appropriations bills that 
prevents agencies from using federal funds for ``publicity or 
propaganda purposes.'' GAO has identified three categories of 
agency communications that are restricted by these 
appropriations riders: (1) covert communications, (2) self-
aggrandizement, and (3) purely partisan activities.\3\
---------------------------------------------------------------------------
    \2\Office of Legal Counsel, Department of Justice, Constraints 
Imposed by 18 U.S.C. Sec. 1913 on Lobbying Efforts (1989) (online at 
www.justice.gov/olc/opinion/constraints-imposed-18-usc-
%C2%A7%C2%A01913-lobbying-efforts)
    \3\Government Accountability Office, Department of Health and Human 
Services--Use of Appropriated Funds for Technical Assistance and 
Television Advertisements (Oct. 19, 2010) (B-320482) (online at 
www.gao.gov/assets/400/390290.pdf).
---------------------------------------------------------------------------
    The bill would require agencies to report to Congress every 
communication to the public--including every oral communication 
from an agency official--about the five regulatory actions the 
agency issued the most communications on in the previous year. 
This would be unnecessarily burdensome and likely would not be 
workable for agencies.
    Overall, the bill imposes unduly burdensome requirements on 
agencies that will distract from their core mission, result in 
reduced transparency, hinder the continued evolution of social 
media platforms used by agencies to reach the public, and 
duplicate requirements already imposed on agencies.
    More transparency would be helpful in the regulatory 
process, but this bill is focused on restricting agency 
disclosures.
    For example, the majority often refers to the promulgation 
of the Waters of the United States Rule (WOTUS) in support of 
this bill. However, after reviewing the entire WOTUS rulemaking 
process, GAO concluded: ``Our review of the procedural steps 
taken indicates that the agencies complied with the applicable 
requirements.''\4\
---------------------------------------------------------------------------
    \4\Letter from Roger J. Cramer, Managing Associate General Counsel, 
Government Accountability Office, to Chairman James Inhofe, Senate 
Committee on Environment and Public Works (July 16, 2015) (online at 
www.gao.gov/assets/680/671628.pdf).

                                   Elijah E. Cummings,
                                           Ranking Member.

                                  [all]