Notice & Comment

Modernizing Regulatory Review – A Compendium (2024)

Last year, as part of my prep for the ABA Administrative Law Conference, I put together a list of policy documents that have been issued by the Biden Administration as part of (or related to) efforts to modernize regulatory review. I did this in part because a lot of this material is in different places and it’s easy to lose track of it all.

In this post I share a long list of links, bundled loosely by topic and in roughly chronological order. Folks told me this was helpful in 2023 so here’s my update for this year, with the most recent year’s documents marked “NEW.” If you see something I missed, or find a dead link, let me know and I’ll update the post.

Overarching Policy Actions

  • Day 1 Actions
    • On his first day in office (Jan. 20, 2021), President Biden issued a series of executive actions that set the tone for his administration’s approach to regulatory policy. The first was a regulatory freeze memo from Chief of Staff Ron Klain, which temporarily stops the regulatory and guidance pipeline. The second was an executive order revoking President Trump’s signature regulatory policy orders, including Executive Order 13771, which put in place a regulatory two-for-one order and a cost-based regulatory budget, and directives on the preparation and use of guidance. The third was a presidential memorandum directing the Office of Information and Regulatory Affairs (OIRA) to modernize regulatory policy.
  • Executive Order (EO) 14094, Modernizing Regulatory Review (Apr. 6, 2023)
    • Reaffirms EO 12866, which has governed regulatory policy since 1993.
    • Adjusts the criteria for “significant” actions—i.e., those actions which will be subject to OIRA review. The most consequential change is likely that it raises the threshold for economic significance from $100M in any one year to $200M in any one year, and commits to adjusting that threshold every 3 years. Under this change, an estimated 20% fewer draft regulations will undergo a more rigorous form of economic analysis under Circular A-4.
    • Calls upon agencies and OIRA to promote public participation in rulemaking in several ways. For agencies, the emphasis is on petitions and outreach for regulatory agendas and plans. The EO directs OIRA to consider guidance and tools to address “mass comments, computer-generated comments (such as those generated through artificial intelligence), and falsely attributed comments” as well as to make adjustments to practices for the public to meet with OIRA when rules are under review.
    • Directs OIRA to update Circular A-4 within one year of the EO’s issuance.
  • Office of Management and Budget (OMB) Memo implementing EO 14094 (Apr. 6, 2023)
    • Fills in several implementation details associated with EO 14094.
  • Blog Post from OIRA Administrator Ricky Revesz (Apr. 6, 2023)
    • Providing an overview of the different materials issued on April 6, 2023.
  • Memorandum of Agreement between Treasury & OMB (June 9, 2023)
    • This document carves tax regulatory actions out from OIRA review under EO 12866.

Regulatory Analysis

  • Circular A-4, Regulatory Analysis (Apr. 6, 2023)
  • Guidance for Assessing Changes in Environmental and Ecosystem Services in Benefit-Cost Analysis (Aug. 2023)
    • Draft guidance (Aug. 2023)
      • This document “describes best practices for analyzing the incremental or marginal changes in [ecosystem] services in the benefit-cost analysis context.”
    • NEW: Guidance for Assessing Changes in Environmental and Ecosystem Services in Benefit-Cost Analysis (Feb. 28, 2024) (final guidance)
  • Guidance on Accounting for Competition Effects When Developing and Analyzing Regulatory Actions (Oct. 11, 2023)
    • Issued in response to EO 14036 (Promoting Competition in the American Economy).
    • Guidance on how agencies should consider competition-related issues in regulatory design.
    • Blog post from Administrator Ricky Revesz.
  • NEW: National Science and Technology Council, Subcommittee on Frontiers of Benefit-Cost Analysis (formed May 2023)
    • “The purpose of the SFBCA is to coordinate and advance efforts that harness the best-available science and economics to address challenges in quantifying and monetizing a broad range of relevant impacts in benefit-cost analyses across federal agencies.” (source: Annual Report)
    • NEW: Annual Report, National Science and Technology Council, Subcommittee on Frontiers of Benefit-Cost Analysis (Dec. 2023)
    • NEW: Fact sheet (Dec. 2023)
    • NEW: Kick-off Meeting, Advancing the Frontiers of Benefit-Cost Analysis (video) (Dec. 19, 2023)

Public Participation

  • Fifth Open Government National Action Plan (Dec. 2022)
    • A section of this document focuses on ways to “increase civic space to engage the public” (p.7 et seq.).
  • Broadening Public Participation and Community Engagement in the Regulatory Process (July 19, 2023)
    • 20-page guidance document addressed to agencies to encourage various approaches to engaging the public in the regulatory process; i.e., beyond the comment period in notice & comment rulemaking.
    • Blog post from Associate Administrator Sam Berger.
  • OIRA also hosted several public meetings on this topic in 2023 and 2024.
  • NEW: OIRA Report, With the People, For the People: Strengthening Public Participation in the Regulatory Process (Aug. 2024)
  • NEW: OIRA Guidance, How You Can Effectively Participate in the Regulatory Process Through Public Comment (Oct. 2024)
  • NEW: Video, How to Comment (3 sessions, 2024)

Meetings with OIRA

  • Draft Guidance implementing the OIRA meetings provisions of EO 14094 (Apr. 6, 2023)
    • In this draft guidance, OIRA took comment on proposed revisions to its policies and practices for public meetings with OIRA while regulations are under review.
    • These changes relate to OIRA encouraging those “who have not historically requested” 12866 meetings to do so, discouraging duplicative meetings, consolidating meetings, and disclosing data about meetings.
  • NEW: Final Guidance (Dec. 20, 2023)
  • NEW: Explanation & Response to Public Input (Dec. 20, 2023)
  • NEW: Training for the public: how-to request OIRA meetings (video) (Dec. 20, 2023)
  • NEW: Training for the public: effective participation in OIRA meetings (two in-person sessions, July 2024)

Burden Reduction & Service Delivery Initiatives

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