Letter re DOCX

[David Boundy]

Dear Colleagues --

Thank you to 152 who signed a letter re DOCX (I think that's a record).  The letter lives here https://ssrn.com/abstract=4534875   Carl's two letters are here https://blog.oppedahl.com/wp-content/uploads/2023/08/20230807-no-hunt-of-real-television.pdf and here  https://blog.oppedahl.com/wp-content/uploads/2023/08/20230806-letter-three-exhibits.pdf

Here's what will happen next.  The PTO's goal is to get an approval under the Paperwork Reduction Act, called a "control number" (an agency can't collect paperwork unless an agency displays a "control number" whenever it asks you for information or paperwork).  The central issue in that approval process is estimates of burden.  It's a two-step approval process, and this was step one.  The PTO published its estimates and requested comment.  The PTO received eight comment letters, which you will be able to see here in a few days https://www.regulations.gov/docket/PTO-P-2023-0031    (Most agencies set a switch that allows public comment letters to be visible in real time.  The PTO is the outlier -- they set the switch so that comment letters are invisible until the agency decides to make them visible.)

Next step: the law requires that an agency fully respond to the comments received, and submit the public comment letters (unedited) and the agency's response to OMB (the "M" side of the Office of Management and Budget) for approval.  (This was supposed to happen during the notice-and-comment period in 2019 and 2020 so the agency can adjust the rule to reduce burden.  The PTO didn't observe necessary procedural requirements then.  Because of shortcutting then, the PTO is boxed in now, and so their only real option is to try to justify high burden, instead of adapt the rule to the public comments.)   I expect the PTO will submit to OMB during August -- perhaps very soon (in one recent case, the PTO submitted to OMB before the step one comment period closed -- "Read the comment letters?  Why would we do that?"), perhaps later.  No way to know.  There;s no real deadline here.

Then comes step two.  The public will have 30 days to comment to OMB to respond to the agency's burden estimates and proposal to collect paperwork.  The central issues in that step will be the issues listed at 44 U.S.C. § 3506(b)(2)(A) and § 3506(b)(3) https://www.law.cornell.edu/uscode/text/44/3506 and at 5 C.F.R. § 1320.5(d)(1) https://www.law.cornell.edu/cfr/text/5/1320.5   Normally OMB issues a control number hours after the expiration of the 30 day comment period.  On other recent issues, our recent letters have had real effect -- OMB approvals have taken five to eleven months. And several times the PTO has had to stand down -- for example, withdrawing the CLE rule.

Thank you for your contributions, markup, and signatures.

--

     

David Boundy | Partner | Potomac Law Group, PLLC

P.O. Box 590638, Newton, MA  02459

Tel (646) 472-9737 | Fax: (202) 318-7707

dbo...@potomaclaw.com | www.potomaclaw.com

Articles at http://ssrn.com/author=2936470

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