The Biden Administration took significant steps on April 6, 2023, to “modernize the regulatory process.” Those actions reflect and implement several best practices recommended by the Administrative Conference of the United States (ACUS), and policymakers may find additional ACUS resources helpful in implementing the Executive Order (EO).
EO 14,094, which President Biden issued on April 6, changes when the Office of Information and Regulatory Affairs (OIRA) reviews agency rules and how agencies analyze the effects of their regulations, including the extent to which they promote distributional fairness and advance equity. The EO also directs agencies to affirmatively advance inclusive regulatory policy and public participation. 88 Fed. Reg. 21,879 (Apr. 11, 2023).
As directed by the EO, OIRA proposed revisions to Office of Management and Budget Circular A-4, “Regulatory Analysis,” which guides agencies in considering the benefits and costs of their regulatory actions. 88 Fed. Reg. 20,915 (Apr. 7, 2023). OIRA Administrator Richard Revesz also issued a memorandum identifying strategies to help agencies implement the new EO. See Strengthening Our Regulatory System for the 21st Century, available at https://www.whitehouse.gov/omb/briefing-room/2023/04/06/strengthening-our-regulatory-system-for-the-21st-century/.
Together, the EO, memorandum, and proposed revisions to Circular A-4 change the regulatory process to enhance public participation and improve regulatory analysis.
Public participation is an integral part of the regulatory process. As ACUS has recognized, “[b]y providing opportunities for public input and dialogue, agencies can obtain more comprehensive information, enhance the legitimacy and accountability of their decisions, and increase public support for their rules.” Recommendation 2018-7, Public Engagement in Rulemaking.
ACUS has adopted recommendations directed at expanding participation at each stage of the regulatory process—from identifying policy problems and setting regulatory priorities, to developing rules, and continuing through retrospective review.
As highlighted in the EO, the right of interested persons to petition agencies for the issuance, amendment, or repeal of a rule represents an important way in which members of the public can participate in regulatory agenda setting. The EO directs agencies to clarify opportunities for interested persons to petition agencies and to endeavor to respond to petitions efficiently. As Administrator Revesz notes in his memorandum, ACUS has identified useful best practices for accepting, processing, and responding to petitions for rulemaking. Recommendation 2014-6, Petitions for Rulemaking.
Administrator Revesz’s memorandum encourages agencies to “identify opportunities to increase public engagement early in the regulatory process, including when they are still considering regulatory options.” ACUS has recommended best practices for obtaining public input on regulatory alternatives prior to issuing a notice of proposed rulemaking. Recommendation 2021-3, Early Input on Regulatory Alternatives.
In addition to considering the timing of public engagement, agencies must ensure that they design opportunities for public participation to, in the EO’s words, “promote equitable and meaningful participation by a range of interested or affected parties, including underserved communities.”
Through two forums, ACUS brought together government policymakers, community advocates, and academic experts to explore ways to enhance public input in agency rulemaking and engage more effectively with underserved communities. Recordings of both forums are available at www.acus.gov/public-participation.
ACUS has also identified options and recommended specific best practices to enhance public participation in the regulatory process. For example, Recommendation 2018-7, Public Engagement in Rulemaking, and Recommendation 2013-5, Social Media in Rulemaking, encourage agencies to take deliberate action to promote public participation in rulemaking. Of particular importance is targeted outreach and attention to people and communities who face barriers to effective participation. ACUS has also identified strategies to ensure the public, including members of historically underserved communities, are aware of regulatory developments that affect them. Recommendation 2022-2, Improving Notice of Regulatory Changes.
Modernizing the regulatory process also requires agencies to adapt to technological changes. For example, technological advances have expanded the public’s access to agencies’ online rulemaking dockets and made it easier for the public to comment on proposed rules. At the same time, in high-profile rulemakings, members of the public have submitted comments in new ways or in numbers that can challenge agencies’ approaches to processing these comments or managing their online rulemaking dockets. The EO directs OIRA to consider guidance or tools to address mass, computer-generated, and falsely attributed comments.
As Administrator Revesz highlights in his memorandum, ACUS has adopted Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments, which offers a comprehensive set of best practices designed to advance the goals of public participation in how agencies process, read, and analyze these types of comments.
In addition to encouraging public participation in the regulatory process, the Biden Administration’s recent executive actions address how agencies conduct regulatory analysis. Such analysis includes evaluating the need for regulatory action, defining the baseline, identifying a range of regulatory alternatives, and estimating the benefits and costs of each regulatory alternative. Regulatory analysis facilitates agency efforts to develop regulations that serve the public interest and helps agencies recognize the distributive impacts of regulatory policy.
One proposed change to Circular A-4 would recognize that regulatory effects can cross international borders. Accounting for these effects will help inform agencies’ cooperative efforts with foreign regulators. Recommendation 2011-6, International Regulatory Cooperation, highlights the importance of agency engagement in international cooperation through a variety of different methods, such as coordination in regulatory promulgation, mutual recognition of inspection and certification regimes, and coordination and information sharing in enforcement. A 2012 EO incorporated key features of this recommendation. Building on this important work, OIRA’s proposed revisions clarify that it will often be appropriate for agencies to analyze the foreign effects of regulations.
ACUS continues to explore ways to enhance meaningful public participation in the regulatory process and identify best practices for regulatory analysis. Recommendations and other resources are available at www.acus.gov.
