White House Issues Guidance on E-rulemaking and Paperwork Practices

On May 28, the Office of Information and Regulatory Affairs (OIRA) issued two memoranda to federal agencies that impact key features of the regulatory process. The memos direct agencies to change practices related to electronic rulemaking dockets and to paperwork clearances that agencies request when collecting information from the public.

On Jan. 21, 2009, President Obama charged the director of the Office of Management and Budget (OMB) to develop an Open Government Directive (OGD) outlining actions executive departments and agencies needed to take to encourage transparency, public participation, and collaboration. OMB issued the directive on Dec. 8, 2009.

The OGD requires OIRA, the office within OMB that oversees federal regulatory policy, to review its policies and procedures and issue revisions to them, if necessary, "to promote greater openness in government." The two May memos are among several issued by OIRA Administrator Cass Sunstein in accordance with the OGD.

The memo on Increasing Openness in the Rulemaking Process – Improving Electronic Dockets urges agencies to make more and better rulemaking information available on Regulations.gov, the main centralized public site for tracking regulations. Specifically, the memo calls for agencies to make their paper-based and electronic dockets consistent with each other. To date, many agencies have had more complete paper dockets available to the public in agency reading rooms physically located at the agencies. The memo urges agencies to put the paper dockets and the electronic dockets on equal footing.

Agencies should also make the electronic dockets more complete. The memo states that "supporting materials (such as notices, significant guidances, environmental impact statements, regulatory impact analyses, and information collections) should be made available by agencies during the notice-and-comment period by being uploaded and posted as part of the electronic docket." Public comments, regardless of the form in which agencies receive them, are to be posted to the dockets in "a timely manner."

The memo also instructs the U.S. Environmental Protection Agency (EPA), which manages and operates Regulations.gov, to develop within six months best practices for classifying documents and establishing data protocols. Changes to the consistency and completeness of data should help alleviate some of the problems that have made Regulations.gov difficult to use and the site’s search results unreliable.

The memo on Paperwork Reduction Act – Generic Clearances addresses changes to certain types of information collections that agencies use to gather information from the public and regulated entities. Under the Paperwork Reduction Act (PRA), agencies are required to seek OMB approval when they wish to collect information from 10 or more people.

Agencies have been given "generic clearances" by OMB when the information collected is voluntary (that is, the respondents are not required to submit the information to the requesting agency), uncontroversial, or easy to produce. Generic information collections "can be used for a number of information collections, including methodological testing, customer satisfaction surveys, focus groups, contests, and website satisfaction surveys," according to the memo.

Besides making agencies aware of and encouraging the use of these generic clearances, the memo describes the process agencies should use to request generic clearances from OIRA. Once approved, the clearance may remain in effect for three years, the maximum time under the PRA that any information collection can be approved.

Although the memo is intended to provide the agencies with a "significantly streamlined process" for receiving OIRA's approval for the plans to collect generic information, OIRA still maintains its control over the substance of the information collections. Once the generic clearance plans are approved, the agencies must still submit "specific information collections (e.g., individual focus group scripts, test questions, surveys) to OMB for review, in accordance with the terms of clearance set upon approval of the plan." Should the specific information collections an agency submits fall "outside the scope" of the clearance, OIRA may require "further consideration" by the agency or force the agency to skip the generic clearance process and go through the complete information collection request outlined in the PRA.

The full list of OIRA's memos to agencies issued pursuant to the OGD is available on OIRA's website under the heading "OIRA Focus."

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