II 111th CONGRESS 2d Session S. 3961 IN THE SENATE OF THE UNITED STATES November 17, 2010 Mr. Lieberman (for himself and Ms. Collins) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend the E-Government Act of 2002 (44 U.S.C. 3501 note) to reform the electronic rulemaking process.

1.

Short title

This Act may be cited as the E-Rulemaking Act of 2010.

2.

Finding and purposes

(a)

Findings

Congress finds the following: (1)Electronic rulemaking allows robust public involvement in the regulatory process and increases transparency of how regulations are developed. (2)Chapter 5 of title 5, United States Code, (commonly referred to as the Administrative Procedures Act) codifies the rulemaking process and opens it up to public participation. (3)Progress has been made in the e-rulemaking program of the Federal Government which was a requirement in the E-Government Act of 2002 (44 U.S.C. 3501 note) including the creation of Regulations.gov. However, the systems architecture and implementation of the Federal Docket Management System have run into limitations in electronic rulemaking. (4)A dedicated, stable appropriation for an enhanced core system can be leveraged by agencies to bring growth and innovation more effectively than the current agency fee-for-service funding models. (5)Lack of adequate data standardization for key data practices makes it difficult for agencies and the public to fully benefit from a Governmentwide rulemaking database. (6)A reliable, centralized rulemaking database that improves on the current Federal Document Management System architecture would allow agencies to share common elements, while supporting interoperable agency applications that reflect a diversity of rulemaking practices. (b)

Purposes

The purposes of this Act are to— (1)establish a framework for governing, managing and funding the next stage of the e-rulemaking program; (2)enhance the capabilities of the Federal Docket Management System so that it can serve as effective core e-rulemaking support, while allowing the system to grow through innovation to provide for the development of new functions, tools and services, by both agencies and interested entities outside of Government; (3)promote processes for discovering and disseminating good e-rulemaking practices and identifying and overcoming barriers to the evolution of e-rulemaking; and (4)encourage all Federal entities that participate in the e-rulemaking process to work towards an accessible and interoperable docket management system.

3.

Governance, management, and funding

(a)

In general

Section 206 of the E-Government Act of 2002 (44 U.S.C. 3501 note) is amended— (1)in subsection (b), by striking To the extent practicable as determined by the agency in consultation with the Director, each and inserting Each; (2)in subsection (c), by striking To the extent practicable, agencies and inserting Agencies; (3)in subsection (d)— (A)in paragraph (1), by striking To the extent practicable, as determined by the agency in consultation with the Director, agencies and inserting Agencies; and (B)in paragraph (2), by striking to the extent practicable, as determined by the agency in consultation with the Director; and (4)by striking subsection (e) and inserting the following: (e)

Interagency E-Rulemaking Committee and Program Management Office

(1)

Establishment

Not later than 180 days after the date of enactment of the E-Rulemaking Act of 2010, the Director shall establish— (A)the Interagency E-Rulemaking Committee; and (B)the Program Management Office. (2)

Membership

(A)

In general

The Interagency E-Rulemaking Committee shall be co-chaired by the Administrator of the Office of Information and Regulatory Affairs and the Administrator of the Office of Electronic Government and shall include senior officers knowledgeable about rulemaking practices from— (i)the General Services Administration; (ii)the Office of the Federal Register; (iii)the Administrative Conference of the United States; (iv)agencies designated by the Director that conduct substantial amounts of significant rulemaking; (v)agencies designated by the Director that conduct relatively little rulemaking; (vi)independent regulatory agencies (as defined under section 3502 of title 44, United States Code) designated by the Director; and (vii)other agencies designated by the Director. (B)

Limitation

Members of the Interagency E-Rulemaking Committee designated under clauses (iv), (v), and (vi) may not comprise more than 50 percent of all committee members. (3)

Functions

The Interagency E-Rulemaking Committee shall— (A)assist the Director in establishing a Program Management Office to conduct and oversee the day-to-day operations of the E-Rulemaking Program; (B)advise the Program Management Office and the Director on the needs and desires of agencies for e-rulemaking capabilities for functionality; (C)develop recommendations for the Program Management Office and the Director on e-rulemaking policies and requirements; (D)assist the Director, and the Program Management Office in the identification, development, and coordination of e-rulemaking projects and other innovative initiatives to improve the Federal Docket Management System; (E)promote the development and use of common performance measures for agency e-rulemaking resources management; (F)develop recommendations in consultation with the Public E-Rulemaking Advisory Committee for the online disclosure of rulemaking information to federal agencies and to the public, including— (i)recommendations to ensure that dockets stored in the Federal Docket Management System are consistent, both in content and organization, with the requirements for electronic rulemaking dockets described under subsection (d); (ii)recommendations to ensure that information exempted from public disclosure under section 552(b) of title 5, United States Code, is not made publicly available; and (iii)recommendations to ensure that personally identifiable information is protected under section 552(l) of title 5, United States Code. (f)

Public E-Rulemaking Advisory Committee

(1)

Establishment

There is established in the executive branch a Public E-Rulemaking Advisory Committee (in this subsection referred to as the Advisory Committee). (2)

Membership

(A)

In general

The Advisory Committee shall be composed of 20 members who are not Federal employees and who shall— (i)be jointly appointed by the Administrator of the Office on Information and Regulatory Affairs and the Administrator of the Office of Electronic Government using a process which provides for transparency and public input; (ii)select— (I)1 chairperson who is not a Federal officer; and (II)1 vice chairperson from the Program Management Office who shall be the designated Federal officer; and (iii)include— (I)a minimum of 7 members with demonstrated regulatory policy and practice expertise; and (II)a minimum of 7 members with demonstrated technology or public access expertise. (B)

Organization

The Administrator of the Office of Information and Regulatory Affairs and the Administrator of the Office of Electronic Government shall— (i)be responsible for the initial organization of the Advisory Committee; (ii)assist in the election of co-chairpersons using a process which provides for transparency and public input; and (iii)designate the General Services Administration to provide staff support to the Advisory Committee. (3)

Broadcast of proceedings

To the greatest extent practicable, the General Services Administration shall make available to the public webcasts and archived footage of all meetings of the Advisory Committee. (4)

Functions

The Advisory Committee shall— (A)regularly advise the Administrator of the Office on Information and Regulatory Affairs, the Administrator of the Office of Electronic Government, and the Administrator of the General Services Administration on the e-rulemaking needs and desires of the various e-rulemaking user communities outside the Federal Government; (B)engage in public consultation to the maximum extent feasible, including consultation with all interested communities such as public advocacy organizations, academics, and regulated entities; (C)consult with the Interagency E-Rulemaking Committee and the Administrative Conference of the United States, as necessary; (D)conduct studies and submit recommendations, as provided under this section, to the Director and Congress; (E)share effective practices for access to, dissemination of, and retention of regulatory material; (F)not later than 6 months after establishment, annually thereafter, and upon termination submit a report to the Director, the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives that shall— (i)identify legal provisions and agency practices that create barriers or obstacles to achieving e-rulemaking goals; and (ii)propose solutions to the barriers or obstacles identified under clause (i). (5)

Termination

(A)

In general

The Advisory Committee shall terminate 2 years after the date of enactment of the E-Rulemaking Act of 2010. (B)

Extension

The President may— (i)extend the Advisory Committee by executive order; and (ii)make more than 1 extension under this subparagraph for any period as the President may determine. (6)

Application of FACA

The Federal Advisory Committee Act (5 U.S.C. App.) shall apply to the Advisory Committee. (g)

Architecture

(1)

In general

The Program Management Office shall collaborate with the Interagency Committee and the Public E-Rulemaking Advisory Committee to achieve significant improvements in the systems architecture for the Federal Docket Management System. (2)

Contents

The systems architecture developed under this subsection shall— (A)include well-designed data and technical standards, reinforced by effective quality control tools and protocols in order to achieve an accurate, consistent system that stores all rulemaking data; and (B)facilitate exchange, retrieval and management of information by agencies and the public. (3)

Standards, protocols, and guidelines

(A)

Office of Management and Budget policy

(i)

Policy

The Director shall issue policy regarding standards, data protocols, and related items to be used by agencies when publishing their electronic regulatory dockets. (ii)

Guidelines

Based on the policy issued under clause (i), the Program Management Office shall promulgate guidelines that— (I)incorporate a widely accepted, nonproprietary, searchable, computer-readable format for rulemaking data; (II)improve the quality, transparency, consistency, security, and usability of electronic rulemaking systems and data; (III)ensure interoperability and process standardization, and appropriate reuse of information; (IV)create document and metadata models for rulemaking documents that accomplish the standardization required for accurate and efficient Governmentwide retrieval of information; (V)integrate standards and guidelines in effect before the date of enactment of the E-Rulemaking Act of 2010 as possible and appropriate, enhancing those standards and guidelines as necessary; (VI)can be continually upgraded as technologies and content evolve over time; (VII)ensure that publicly available online Federal Government rulemaking information and services are made more accessible to external Government and external search capabilities; and (VIII)are developed in consultation with the National Institute of Standards and Technology. (4)

Transfer of data

In collaboration with the Program Management Office, the Director shall establish a process for agencies to conduct authorized transfer of data, including bulk transfers, to and from the Federal Docket Management System. (5)

Public review and comment

Before taking effect, the Director and the Program Management Office shall make the standards and guidelines developed under this subsection available to the public for review and comment. (6)

Review and update

The Director and the Program Management Office shall review the standards and guidelines developed under this subsection at regular intervals and revise those standards and guidelines as necessary. (7)

Independent regulatory commissions

Each independent regulatory commission that has not migrated to the Federal Docket Management System shall— (A)take any necessary action to establish interoperability with the Federal Docket Management System; and (B)ensure that rulemaking materials of that independent regulatory commission can be located by users of the system. (h)

E-Rulemaking practice and innovation

(1)

Assessments

The Director shall provide for periodic, multi-method usability assessments by users of the systems architecture established under subsection (g). (2)

Practices

After consulting with public stakeholders and the Public E-Rulemaking Advisory Committee, the Interagency E-Rulemaking Committee shall make recommendations to the Administrator of the Office of Information and Regulatory Affairs regarding current and emerging practices that— (A)enhance online accessibility and manageability of rulemaking information; (B)promote informed and effective public participation; and (C)harness technology to improve rule formation and implementation. (3)

Office of Management and Budget

Based on the recommendations under paragraph (2), the Director shall— (A)identify clear performance objectives and timelines for action by the agency to ensure that all rulemaking and docket materials are available electronically; (B)provide to the Public E-Rulemaking Advisory Committee any records or data on the management, functionality, and performance of the systems architecture and all component parts developed under subsection (g), as necessary for forming recommendations under subsection (f); and (C)identify innovative projects that are developed under the standards, protocol, and guidelines under subsection (g). (i)

Reporting

(1)

In general

Not later than March 1 of each year, the Director, in consultation with the Program Management Office, shall submit an e-rulemaking status report to— (A)the Committee on Homeland Security and Governmental Affairs of the Senate; and (B)the Committee on Oversight and Government Reform of the House of Representatives. (2)

Inclusion in status report

An e-rulemaking status report may be submitted as part of the annual E-Government status report established under section 3606 of title 44, United States Code. (3)

Contents

Each report under this subsection shall contain at a minimum— (A)the progress of the e-rulemaking initiative; (B)performance measurements regarding achievement of system and program goals; and (C)a summary of public participation and collaboration efforts. (4)

Statement of progress

All agencies, including independent regulatory commissions, shall submit to the Director, for inclusion in the annual report under this subsection, a statement describing the agency progress in achieving compliance with the requirements of this Act. (j)

Authorization of appropriations

(1)

Maintenance, improvement, and promotion

There are authorized to be appropriated to $10,000,000 for the maintenance, improvement, and promotion of the e-rulemaking system in accordance with this section for each of fiscal years 2011 through 2015, and such sums as are necessary for subsequent fiscal years. (2)

Innovations to the systems architecture

There are authorized to be appropriated $1,000,000 for projects identified under subsection (h)(3)(C) for each of fiscal years 2011 through 2015, and such sums as are necessary for subsequent fiscal years. .