Regulations matter. Federal executive action is supposed to be rooted in statutes, established through regulatory processes generally tied to the Administrative Procedure Act (APA), and — at least conceptually — rooted in the principle that members of the public should be given a meaningful opportunity to provide input to regulators. Providing such opportunities, however, has proved difficult.

Because “federal regulations make a difference in people’s lives every day,” since taking office, the Biden Administration has sought to encourage broad public participation, but particularly from historically “underserved” communities. Key policy documents related to these efforts include a January 20, 2021, White House memorandum entitled “Modernizing Regulatory Review,” which focuses in part on ensuring that “regulatory initiatives appropriately benefit and do not inappropriately burden” disadvantaged communities and Executive Order 13985, entitled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”

This week, the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) released “Broadening Public Engagement in the Federal Regulatory Process.” This document builds out lessons OMB and OIRA have learned since 2021 related to how the federal government can make the policy process more equitable.  

“Summary of Learnings and Recommendations”

OMB and OIRA — both offices housed in the Executive Branch — exist to assist the President in meeting his or her policy, budget, management, and regulatory objectives. While both offices are known to be significant by regulatory cognoscenti and policy wonks, neither is the topic of coffee-table conversations among other Americans.

This said, OIRA’s efforts related to working to make the policy process more equitable may prove meaningful. While individual agencies have provided guidance intended to promote participation — EPA’s Equity Action Plan, discussed here, providing one example — OIRA here intends to drive change across the federal government, in part by standardizing the comment processes used by agencies.

While OIRA reports some preliminary lessons, at this stage of the process, seeks input from the public on how it can:

• “Help the public and agencies better understand the regulatory process and the role of OIRA” including identifying opportunities for public engagement. OIRA believes steps like “describing why regulations matter,” “helping members of the public understand how to write comments,” and demonstrating “how public comments can make a difference in rulemaking by providing prominent examples.”

• “Make regulatory materials more accessible and usable by members of the public.” To implement this, OIRA believes that regulations can take steps including “us[ing] plain language,” highlighting “key questions and issues on which agencies seek the public’s views,” and considering accepting comments through “multiple formats” including “recorded video or audio submissions in addition to written submissions.”

• “Proactively engage communities early and throughout the regulatory process to efficiently use government and community time and resources.” To do this, OIRA suggests agencies can be encouraged “to engage with relevant stakeholders to develop ways to facilitate public participation,” that agencies can be asked to engage with communities when developing submissions, and that community engagement strategies be revisited when processes appear not to be working.

Next Steps

While OIRA welcomes feedback on any of the above topics, it specifically requests input on the following:

1. Which of the recommendations can most effectively broaden public engagement in regulatory processes, particularly from underserved communities and others who generally do not participate in regulatory processes?

2. Outside of the recommendations provided above, are there other barriers to public participation that are not addressed by these recommendations?

3. Are there existing materials like guides or tools which would be especially effective in implementing these regulations?

4. “How can intermediaries — such as trade associations or coalitions — be helpful in reaching individuals and small organizations or businesses, where have they been successful in doing so, and where might they be insufficient?”

OIRA has provided an email under which feedback — be it written, video, or audio — can be submitted. Additionally, OIRA indicates that it intends to have an additional virtual listening session on March 10, 2023. Further information on this meeting will be available here.