Broadening Public Participation in the Regulatory Process as Explained by Barbie

By Bitsy Skerry | Regulatory Policy Associate for Public Citizen

Hi, guidance! On July 19th, the Biden administration published guidance for Federal agencies titled “Broadening Public Participation and Community Engagement in the Regulatory Process.” The guidance, released by the Office of Information and Regulatory Affairs (OIRA), the White House office responsible for the review of proposed and final Federal regulations that protect consumers, workers, public health, and the environment, serves as a clear indication that the Biden administration is pushing for greater public participation. Its July release (two days ahead of the theatrical release of Barbie, I might add) comes as part of the administration’s multi-pronged approach to making the regulatory process work for the public interest, not for corporate special interests.

Back in April, Biden’s OIRA issued an Executive Order on Modernizing Regulatory Review along with a proposed update to Circular A-4 on regulatory analysis (guidance for agencies on how to assess the benefits and costs of regulations). Now that this new guidance has arrived on the scene, agencies have the opportunity to engage with the public in significant and imaginative ways.

Public Citizen has been pushing for a more inclusive regulatory system for a long time, so we are thrilled to see this effort from the administration. While the new guidance is not binding on agencies, agencies will take it seriously and be very likely to follow it. This guidance is Barbie Land-approved, as it values inclusivity, accessibility, and community.

Building Back Better

It is a significant shift for OIRA, which has historically been a “black box,” to be so transparent about its plans to improve the regulatory process for the better. It is similarly refreshing to see OIRA engage with the public in meaningful and impactful ways, such as through the release of this guidance. Biden’s OIRA is unlike any OIRA we’ve seen before, and that is a welcome and necessary change.

As the guidance states, “Broadening public participation and community engagement in the regulatory process can help agencies produce more responsive, effective, durable, and equitable regulations. This is particularly true when agencies engage communities through trust-based, long-term, and two-way relationships” (p. 4).

This isn’t just talk… it’s action

In reading the guidance, I can see how feedback provided by myself and other Open Government listening session attendees is reflected. This shows that the administration is already walking the walk and took the public’s feedback to heart, even in the creation of these initial recommendations. As individuals who attended the listening sessions suggested, the guidance calls on agencies to make the rulemaking process more accessible to members of underserved communities, people with disabilities, and people with limited English proficiency.

Accessories include…

The guidance directs agencies to use a number of tactics to promote public participation and community engagement in the regulatory process. An Office of Management and Budget (OMB) blog post written by Sam Berger, OIRA Associate Administrator, highlights some of the most important ways the guidance encourages agencies to include the public in the rulemaking process.

For example, the guidance is “[c]alling on Federal agencies to use public engagement — such as working with a local organization to hold listening sessions to hear directly from impacted communities — to help set regulatory priorities, and to describe how public engagement informed those priorities in the Unified Agenda of Regulatory Actions compiled by OIRA each Fall and Spring. (The Unified Agenda is a public document, published twice a year, cataloging regulatory actions underway across the Federal government.),” Berger writes.

Other ways the guidance calls on agencies to make the rulemaking process more accessible to the public, especially members of underserved communities, people with disabilities, and people with limited English proficiency, include:

- “Using plain language summaries, infographics, or short videos distributed through social media or traditional media (especially local, regional, or ethnic news) to raise awareness of regulatory proposals that an agency is considering and, when relevant, translating these infographics or videos into multiple languages and providing them in accessible formats for affected communities” (p. 18);

- “[h]olding listening sessions, including online or technology-enabled sessions, while agencies are still formulating regulatory priorities in order to reach individuals who might not be able to attend an in-person listening session but can attend on video or telephone; scheduling sessions during a variety of times to take into account different schedules, time zones, and work obligations; and making clear that agencies are interested in hearing about individuals’ own experiences in addition to research or data. Agencies could consider how to make such sessions multilingual, if necessary, and accessible” (p. 17–18); and

- “[p]roactively reviewing the accessibility of events or other outreach efforts to ensure that all communications, materials, and venues are accessible in advance of an engagement, including by inviting feedback from disability organizations” (p. 18).

Again, this isn’t just talk, it’s action. I Kennot stress this Kenough!

The end of the guidance states:

The U.S. regulatory system affords members of the public important opportunities to participate in the work of government, shaping the priorities and alternatives pursued by agencies. This [guidance document] lays out important steps that agencies could take to broaden participation and engagement in rulemaking, thereby strengthening regulations and deepening the democratic promise of the regulatory system. OIRA stands ready to work closely with agencies to achieve these goals (p. 20).

OIRA is taking public participation as seriously as Barbie takes “a giant blowout party with all the Barbies, and planned choreography, and a bespoke song,” in the Barbie movie. Now that’s serious.

Monitoring implementation of the guidance is critical

Of course, the guidance will only be successful if it is utilized by agencies.

It is critical to monitor implementation to ensure the Biden administration is meeting its goals of increasing public participation and community engagement.

The guidance states, “OIRA will organize a follow-up listening session in approximately twelve months from the issuance of this guidance to hear from members of the public about implementation of this guidance and opportunities for improvement. OIRA will also engage with agencies in that same time period to understand how implementation of this guidance can be improved” (p. 3). This is good. Accountability is so important if real change is to come about.

Public Citizen will be monitoring the implementation of this fantastic new guidance in the Real World.