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October 18,
2001
MEMORANDUM FOR OIRA STAFF
| FROM: |
John
D. Graham /s/
Administrator |
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| SUBJECT: |
OIRA
Disclosure |
As I have described for you on several occasions, I believe that
the transparency of OIRA's regulatory review process is critical
to our ability to improve the nation's regulatory system. Only if
it is clear how the OMB review process works and what it does will
Congress and the public understand our role and the reasons behind
our decisions. In addition, while most of OIRA's reports and guidances
are available on-line, there is much more public information that
we can put on the Internet for easy access by the public. I have
asked Don Arbuckle to be OIRA's lead in this area.
I instruct you to adhere to our disclosure procedures as they are
set out in Executive Order 12866 and, wherever possible, to use
electronic means and the Internet to make public materials more
accessible to interested parties. In the interests of clarifying
our disclosure procedures and my intentions regarding use of the
Internet to increase transparency, what follows below describes:
(1) current disclosure practices and procedures and how they
should be interpreted; (2) our plans to put currently public
information on the Internet to facilitate access to it; and (3) a
major renovation of OIRA's information system that is underway,
and that, when completed, will allow much fuller electronic access
to public materials related to OMB's regulatory reviews. If OMB-OIRA
is to be a credible promoter of E-government, we must practice it
ourselves.
Attachment
(1)
E.O. 12866 OIRA DISCLOSURE PROCEDURES
Current disclosure
procedures are defined in section 6(b)(4) of Executive Order 12866.
Under these procedures, OIRA makes available for public inspection
logs or copies of certain communications with parties outside the
Executive Branch regarding rules under review. These include telephone
calls, meetings, and incoming correspondence. OIRA also makes the
relevant regulatory agency aware of these communications by invitations
to meetings, logs of communications, or copies of correspondence
submitted to OIRA by outside parties. In addition, OIRA publishes
monthly statistics concerning its regulatory reviews. Finally, after
a review is complete and the rule published, OIRA makes available
certain materials associated with the review, including the rule
text submitted for OIRA review.
Monthly
Regulatory Lists and Statistics
OIRA provides
on the Internet a list, updated daily, of all rules under review.
At the end
of each month, OIRA provides hardcopy lists and statistics regarding
regulatory reviews for that month and for that calendar year to
date. These include: lists of all rules on which review was concluded
that month, as well as a list of all economically significant rules
reviewed during the month. These lists, organized by agency, include
the name of the regulating agency, title of the rule, date received
and date review was concluded, and rulemaking stage (i.e., proposed,
final, interim final). In addition, OIRA provides statistics for
these rules, as well as statistics for all rules reviewed that calendar
year. The statistics include: number of rules reviewed by agency,
including number of economically significant rules; results of the
review (that is, review concluded, review concluded with change,
withdrawn by agency, returned to agency); and the average review
time for rules by agency.
Post
Review Materials
OIRA also makes
certain materials available after the publication of a rule that
has been reviewed. Upon request by the public, OIRA will provide:
the draft regulation as originally submitted; any agency analyses
(e.g. RIA not published with rule) and other material submitted
by the agency during the review; "change" pages, (i.e., pages of
the draft where changes have occurred in the course of review);
correspondence between OIRA and the agency exchanged during the
review; and correspondence OIRA received from outside parties while
the rule was under review.
Disclosure
Procedures.
The procedures
as stated in section 6(b)(4) of Executive Order 12866 are somewhat
complex to implement in practice. Consequently we describe below
what communications need to be logged and or made publically available,
and when the regulatory agency needs to be notified.
Scope
of disclosure: OIRA must disclose substantive
communications with outside parties regarding rules under review.
A. Definitions.
1. Outside
parties: "persons not employed by the executive branch."
Covered:
Communications with the public, including Congress.
Not
covered: Intra- and inter-agency communications.
2. Substantive
communications:
Covered:
Substantive discussions of specific rules.
Not
covered: Non-substantive communications (e.g.
status of review, review procedures).
3.
Rules under review:
Covered:
A rule is officially under review after an agency submits and
OIRA records receipt of a clearance package. Consistent with
the spirit of E.O. 12866 disclosure procedures and OIRA staff
practice, OIRA also considers a rule to be under informal review
after OIRA has started a substantive discussion with the agency
concerning the provisions of a draft rule or OIRA has received
the rule in draft.
Not
covered: Rules are not under review prior to
the start of informal OIRA review or after OIRA has notified
the agency that review is concluded; legislative discussions
are not covered.
B. Types of
communications and OIRA disclosure practice.
1. Oral
(telephone calls):
Covered:
Only the Administrator (or a particular designee) may receive
substantive telephone calls about a rule under review. Consistent
with the spirit of E.O. 12866 disclosure procedures and OIRA
staff practice, OIRA also considers this disclosure requirement
to apply to substantive telephone calls about a rule under review
if the telephone call is initiated by the Administrator (or
a particular designee).
Not
covered: Non-substantive calls about status or
review procedure; substantive calls about a rule not under review.
Procedures
to follow:
- If
caller wishes to stress the importance of the rule or raise
a substantive issue about it, OIRA staff should request that
the caller write a detailed letter addressed to the OIRA Administrator.
- Calls
must be logged and the agency notified within 10 working days.
2. Meetings
with outside parties:
Covered:
Any meeting with an outside party to discuss the substance of
a rule under review.
Not
covered: Meetings to discuss rules not under review,
or meetings to discuss broad regulatory topics (e.g., analytic
methodology or legislation).
Procedures
to follow:
- The
Administrator (or a particular designee) must attend the meeting.
- Meetings
are to be arranged by the Administrator's office, and a representative
from the agency is to be invited.
- A log
of such meetings must be kept (date, topic, lead agency, participants).
- The
log and any documents submitted at the meeting must be placed
in the OIRA docket room.
- If an
agency representative is not present, any documents submitted
at the meeting must be sent to the agency. A note should be
made in the log that the agency was invited but declined or
was unable to attend.
- If it
appears there will be a long time period between NPRM and
possible final rule, the Desk Officer should suggest that
the outside party requesting a meeting wait until the final
rule is under review.
3.
Correspondence:
Covered:
Correspondence concerning the substance of a rule that is received
while the rule is under review.
Not
covered: Correspondence received while a rule is not
under review.
Procedures
to follow:
- A copy
of the correspondence should be sent to the docket room to
be filed for public access. (Deputy Administrator's office
will make copies for docket room as letters come in.)
- A copy
should be sent to the agency within 10 working days if agency
does not already have a copy. (Appropriate Branch responsible.)
- OIRA
staff should include this correspondence in the final clearance
package that is filed in the docket room after review is completed.
Note: correspondence received by OIRA during a proposed rule's
public comment period should not be filed in the regulatory
file, but should be sent to the docket room for display in
a general public file (and a copy sent to the agency if it
has not already received the correspondence.)
(2)
USE OF THE INTERNET TO MAKE MATERIALS ACCESSIBLE
OIRA currently
places a variety of information on line at the OMB website. Currently
this includes OIRA reports, bulletins, guidances and other similar
documents. It also includes the list of rules pending under OIRA
review. More recently OIRA has put on-line other types of communications
from the OIRA Administrator to agencies; for example "prompt," "return,"
and "post clearance" letters and a memorandum from the Administrator
to the President's Management Council ( September 20, 2001) on "Presidential
Review of Agency Rulemaking by OIRA."
In addition,
OIRA plans to use the Internet to enable the public to easily obtain
information about outside communications that is required to be
disclosed under E.O. 12866. We anticipate posting the following
information by November 1, 2001:
- information
on meetings, phone calls and other oral
communications with outside parties that is required to be
disclosed under E.O. 12866 (i.e., date, names of the participants
and the subject matter); and
- a listing
of the written correspondence received from outside parties,
which would include the date of the communication, the sender
and his or her organizational affiliation, and the subject matter
(or, in the case of a large volume of outside communications on
the same rulemaking, a categorization of these communications
and the subject matter).
OIRA also plans
to post on OMB's website as soon as possible:
- Monthly
regulatory review lists and statistics currently available only
in hardcopy.
- The text
of written outside communications that are currently available
in the OIRA docket library.
(3)
UPGRADING OIRA'S ELECTRONIC MANAGEMENT SYSTEM
A New
Computerized Tracking System. OIRA is currently developing
a new computerized tracking system to manage the reviews of information
collections and regulations. This upgrade of OIRA's 20-year-old
system is long overdue and will improve OIRA's ability to communicate
with the rest of the Federal government and the public. This system
will include capabilities for electronic submission and dissemination,
as well as more closely linking OIRA's regulatory reviews to the
semi-annual Unified Agenda.
Our current
plans include a full query capability for the public to search for
and view information about the transactions under review and to
view complete review records (all electronic documents and references
to all paper documents) as they are made public in accordance with
OIRA's disclosure procedures (immediately for paperworks and after
publication for regulations). This would be in addition to the current
reports available to the public regarding pending reviews, recently
concluded reviews, and the monthly paperwork inventory. OIRA would
also make available to the public a series of standard reports so
that the public can gather simple aggregate information about OIRA's
actions. This project is currently well into the planning stages.
We anticipate being able to begin use of the system in the latter
half of 2002.
More specifically,
this system will manage the flow of information required by the
Paperwork Reduction Act (PRA) and Executive Order 12866 and will
also help OIRA to carry out its responsibilities under the Government
Paperwork Elimination Act (GPEA). It will vastly improve the capabilities
of the existing information systems OIRA uses to track information
collection requests (ICRs) under the PRA and to track regulatory
reviews under EO 12866. One of its most important features will
be to incorporate the data used to develop and publish the semi-annual
Unified Agenda and annual Regulatory Plan in the Federal Register.
For all three functions, Federal agencies generate materials and
submit them to OIRA or, for Regulatory Agenda and Plan data, to
GSA's Regulatory Information Service Center (RISC) for review. At
present, submissions to OIRA are entirely on paper for regulations
and ICRs. For the Unified Agenda and The Regulatory Plan, submissions
are partly electronic. The new system will allow tracking rules
across all three databases, which is difficult under the current
system. It will also permit data mining - extracting information
from the databases and re-organizing it for purposes other than
what the database was originally intended.
OIRA and RISC
envision the new system substantially expanding the capabilities
of the three current systems to include the following features:
Electronic
submission of documents from Federal agencies;
Electronic
processing of documents within OIRA and RISC;
Paperless
review of standard ICRs, Regulations, and web-based forms;
Electronic
record-keeping and archiving;
A single
comprehensive database for regulatory review and Unified Agenda
processing;
Accessibility
to people with disabilities as required by Section 508 of the
Rehabilitation Act of 1973 (as amended);
Context-sensitive
on-line help;
Improved
query and report functions;
Expanded
availability of economic data on the benefits and costs of regulations;
Internet
accessibility for Federal agencies, OIRA, RISC, and the public;
Improved
interoperability with other Federal agency data systems, including
with the Federal Register; and
Cross-references
to other information systems available via the Internet.
In summary,
OIRA's future rests on conducting its analytical approach to policy
in a manner that is readily subject to public scrutiny, criticism,
and praise.
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