People who wish to meet with the Office of Information and Regulatory Affairs (OIRA) to discuss a draft regulation may now request to do so online. OIRA has recently moved to an online, automated meeting request process. To request a meeting in the past, groups or individuals were required to call or email OIRA to set an appointment. The new process allows parties who wish to meet to request and confirm meetings online. Additionally, the online platform allows for people meeting with OIRA to upload documents associated with the meeting ahead of time. The new process of requesting a meeting is simple. Requesting a meeting requires a RIN (Regulation Identifier Number), a first and last name, and an email address. This commentary considers how this new process of requesting a meeting could affect public participation in rulemaking or regulatory review, finding that it may just make it more convenient for those with a prior understanding of the public participation in regulatory process to request a meeting.
What is OIRA’s role in the rulemaking process?
OIRA is an office within the Office of Management and Budget (OMB), which is housed within the Executive Office of the President. OIRA reviews proposed and final regulations from government agencies prior to their publication.
A regulation is a statement that has the force and effect of law. Regulations are created through the “rulemaking” process. Congress delegates the power to create some of these rules to specific agencies within the executive branch. For almost 40 years, presidential executive orders have also required that OIRA reviews some rules prior to publication. After the public has an opportunity to comment, the agency considers, and possibly implements, public feedback, and the agency sends its final draft back to OIRA again. Once reviewed by the office, the agency publishes the proposed or final regulations in the Federal Register, the daily journal of the federal government.
In addition to meeting with concerned parties regarding regulations, OIRA has many functions within the rulemaking process.
According to Cass R. Sunstein, President Obama’s OIRA administrator, OIRA’s primary day-to-day function is to act as an “information aggregator” between all parties concerned with a regulation. These parties include the Executive Office of the President, other agencies and departments within the federal government, state, local and tribal governments, and members of the public.
OIRA also reviews regulations to ensure they : 1) address a “compelling public need, such as material failures of private markets”; 2) are developed after taking “all costs and benefits of available regulatory alternatives, including the alternative of not regulating” into account; and 3) “maximize net benefits” to society, unless prohibited to fully do so by law. Additionally, it is OIRA’s responsibility to ensure that regulations align with the President’s policies and priorities.
How can the public engage in the rulemaking process?
People may engage in the regulatory process by submitting a formal comment to agencies on their regulations that have been published in the Federal Register. The Administrative Procedure Act of 1946 requires the agency to consider those formal comments and respond to them. Commenting on rules provides the public, state or local governments, small businesses, or other entities to share support or dissent, with supporting documentation and data, for a particular regulation.
The public may also meet with OIRA to discuss regulations that are under review. These meetings provide outside parties with the opportunity to present feedback on a rule. During them, according to Dr. Rachel A. Potter, no further details are provided than those that already exist in the publicly-available materials about the rule.
A list of rules under review is published on OIRA’s website. Meetings are run by the OIRA administrator or a specific designee. Members of agencies from which the regulations are issued are invited to meetings. White House staff may attend meetings as well. A record of these meetings is available to the public. These records can be found online, or through OIRA’s app, RegInfoMobile.
Who meets with OIRA?
Critics have raised concern that the majority of people who meet with OIRA come from organizations with experienced lobbying groups, such as trade associations, businesses, or public interest groups. A recent report by Dr. Rachel Potter showed that In President Obama’s first year in office, the majority of OIRA’s meetings were with trade associations and individual businesses. Her report also says that those two groups also took up the majority of OIRA meetings during President Trump’s first year in office. However, there was a significant increase in nonprofit, public interest groups during Trump’s first year as well. Dr. Potter attributes this increase in nonprofit lobbying to Trump’s deregulatory agenda.
The report notes that groups who meet with OIRA will often submit a public comment to the regulating agency in an attempt to strengthen their impact on the rule. She explains that they often have a firm understanding of the regulatory process and money to spend on lobbying.
There are mixed views on the impact that these lobbying meetings actually have on proposed regulations. One former OIRA Administrator has said that OIRA’s meetings with the public do not impact their decision making on rules under review, while some scholars find correlations suggesting that lobbying meetings are associated with changes to rules under review.
Adding the meeting request to the OIRA website is a way for OIRA to keep pace with technological change. A more automated process should mean less processing time to get these meetings scheduled.
The larger question is whether the change to an online meeting request system will make a difference in who meets with OIRA. This innovation may have the potential to attract internet-savvy individuals who want to have input on the regulations that OIRA is reviewing. However, other than posting about its online system on its website, it is difficult to find any other announcement on OIRA’s behalf regarding this new change. Consequently, those internet-savvy individuals will likely have to stumble across the website to request a meeting.
Without additional promotion of the online system, it’s possible that only those who are experts in the regulatory process will know enough to find it and use it to request meetings with OIRA. It is likely that this move to an online system will only make things more efficient for them.