Transparency and Public Commenting Under EO 13771

December 9, 2018


Two House of Representatives committees have shown interest in how the administration is carrying out President Trump’s Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” which requires agencies to offset the costs of new regulations by modifying or eliminating existing ones, and EO 13777, “Enforcing the Regulatory Reform Agenda,” which establishes regulatory reform task forces in each agency. The Subcommittee on Intergovernmental Affairs and the Subcommittee on Interior, Energy, and Environment held three joint hearings in October and November with various government agencies to assess the task forces’ progress and best practices. On November 29, witnesses from the Department of the Interior (DOI), the Environmental Protection Agency (EPA), and the Department of Energy (DOE) reported on their activities aimed at cutting back regulations and looking for waste within their agencies. They also addressed subcommittee members’ concerns regarding transparency, public participation, and maintaining environmental standards.

House “Check-In”

Although the primary purpose of this hearing was to receive a report on the progress of DOI, EPA, and DOE Regulatory Reform Task Forces, a clearly divided agenda formed between majority and minority members. Republican representatives focused on supporting deregulation and touted existing successes in this realm, while Democrats expressed greater concern for the level of transparency and public participation. Minority members, in particular, argued that both the regulations being identified for review, as well as the list of names of those selected for the task forces should be public information, available to those who have an interest in regulatory reform. These members seem wary of deregulation and task force appointments occurring without proper input and oversight.

EPA best practices

While all three agencies said that their lists of task force members is public information, and that they sought out public comments on proposed regulatory reforms, EPA emerged as a clear leader in both regards. Not only did EPA immediately publish the names of the Regulatory Reform Task Force members on its website, but it created a specific page to report on the activities of the task force and to seek public comment on all reform ideas. It received more than 460,000 comments, of which 63,000 were unique, on its Federal Register notice on regulatory reform, an unprecedented amount of engagement.

DOE best practices

DOE is also accepting public comments on potential regulatory reforms through Requests for Information published in the Federal Register. For example, it has received 132 comments on the ways DOE regulations are affecting interested parties. DOE is working to respond to comments on regulations being reconsidered and is also proposing related rules, such as a review of the current Appliance Standards Program and a proposed rule on expediting natural gas exports. DOE also created a specific email address for the purpose of collecting public comments on its initiative.

DOI best practices

The DOI witness expressed strong support for engaging the public in the department’s deregulatory efforts, but received quite a bit of scrutiny over the lack of public availability of internal information, such as the list of Task Force members and their career backgrounds. DOI has created a simple web page with basic information about its regulatory reform efforts, but members suggested that DOI should make information about the Task Force more readily available. Despite these criticisms, DOI matched up to DOE in number of public comments, receiving 215 on its Federal Register notice on deregulation. It has also demonstrated a serious effort at eliminating unnecessary regulation, with 154 regulatory actions identified for removal.

Transparency is important

This Regulatory Reform Task Force check-in indicated that DOE, EPA, and DOI have all been active in identifying and eliminating regulatory actions for removal. However, the hearing also brought up a greater theme of concern within Congress about the method these agencies utilize when identifying excess regulation. Although crossover exists between them in terms of methods for sharing information and opening up the process to public comment, members clearly felt the EPA is taking the most accessible approach and finding significant public interest in its activities. Transparency is expected, however the high volume of comments and public input will likely slow down the deregulatory agenda, creating competing objectives for these agencies.