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October 18, 2001

MEMORANDUM FOR OIRA STAFF

FROM: John D. Graham /s/
Administrator
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.