Campaign: Rulemaking

Address Legal Barriers That Impede Participation and Collaboration

Certain laws and regulations, as well as the manner in which certain agencies interpret these laws and regulations, affect the ability of agencies to engage and collaborate with the public. Among these laws and regulations are the Federal Advisory Committee Act (FACA), the Paperwork Reduction Act, the Government in the Sunshine Act, the Administrative Procedures Act (APA), and the Anti-Pass-The-Hat Provision (in the Treasury Appropriations Bill). In addition, some individual agencies say their internal interpretation of government-wide laws may place constraints on better citizen participation (e.g., National Environmental Policy Act (NEPA), FACA, etc.)

 

The following recommendations were developed by a group of federal agency managers and staff at a conference on March 30-31 that was facilitated by AmericaSpeaks, Demos, Everyday Democracy and Harvard's Ash Institute for Democratic Governance and Innovation.

 

Conduct a review of each department and agency to update program regulations and rules in accordance with applicable legal authorities and societal needs. Departments and agencies will also determine whether they impose explicit or implicit restrictions or impediments to greater citizen involvement in program, agency, or cross-agency efforts. Efforts might include planning, agenda setting, program analysis, program or service design, implementation, examining efficient and effective alternatives, and evaluation.

 

Use the review to produce an inventory of (1) creative examples of models or alternatives and (2) possible barriers. Share this information among agencies and the public. The inventory will be organized into the following categories (for both model examples and barriers) imposed by: (1) government-wide laws or regulations; (2) policies administered by other agencies; (3) agency or program-specific laws or regulations; and (4) administratively by the department, agency, or program. Separately identify implicit barriers, such as long review cycles for administrative approvals, multiple approvals for action, inconsistent legal interpretations over time, etc.

 

Post the inventory on the department or agency’s website for public review and comment for an explicit number of days. Complete the review and resulting inventory in an explicit number of days from the signing of this directive. Share the inventory with the entity overseeing the implementation of the Open Government Directive, which will post this inventory, along with other agency inventories, on a website as a resource for other agencies.

 

Based on the review described above, department and agency heads will develop plans to improve their citizen participation efforts. These plans should address the administrative barriers identified, best practices identified, and the use of new technologies. The department or agency may delegate implementation action to a designated champion, office, or task force designated for this purpose. That entity will report on progress on a semi-annual basis.

 

In the case of government-wide laws or regulations, or requirements of other agencies (e.g. FACA, FOIA, Paperwork Reduction Act), these shall be referred to the entity overseeing the implementation of the Open Government Directive for resolution.

 

In the case of FACA, some agencies have found that their legal counsels’ interpretations of the statute are a barrier to participation and collaboration efforts. The White House Counsel should set parameters around FACA’s interpretation in order to support greater collaboration and participation. The White House Counsel should provide trainings for legal counsels in the agencies on the interpretation of government-wide laws or regulations that impact participation and collaboration.

 

In the case where government-wide laws or regulations are being interpreted differently by different agencies, the entity overseeing the implementation of the Open Government Directive will work with agencies to develop an agreed upon interpretation that will increase opportunities for citizen participation.

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Idea No. 43