Understanding OIRA Review Process: A Guide to Regulatory Oversight

Despite APA requirements for public comment, agencies systematically fail to ensure meaningful participation from all affected groups. Empirical evidence shows agencies negotiate rule proposals with industry before publication, and courts have negotiated with litigious groups. Industry groups historically engage 170 times more in informal communications with agencies than public interest groups. OIRA meetings receive five times more industry representatives than public interest representatives. These systemic failures undermine democratic accountability, as the regulatory process becomes dominated by well-resourced interests while frontline communities and vulnerable populations are systematically excluded from meaningful participation in decisions affecting their lives.

12866 meetings are public participation sessions conducted by OIRA when reviewing federal regulations, where any member of the public can request a meeting to provide their views on a rule under review; these meetings are approximately 30-minute listening sessions where participants can express their perspectives on regulations, though they are not substitutes for the formal notice and comment process and are designed to capture public input on regulatory impacts including costs, benefits, and effects on communities.

The OIRA review process can be highly political. Under Reagan, OIRA administrators explicitly stated their job was to kill regulations. Lobbying can occur directly to the White House, as happened with the ozone rule update. The process is opaque because meetings with industry are supposed to be docketed and public, but records show gaps. Lobbying through the White House may leave no public record. The speaker argues the process is broken due to understaffing and a mistaken mission. Regulated industry has close relationships with regulators and can meet with desk officers, though public records don't capture all interactions. The speaker suggests that while some people in OIRA genuinely believe they are promoting good policy, the system is fundamentally flawed.

Under Executive Order 12866, any interested member of the public can request a meeting with OIRA about rules under review by visiting whitehouse.gov and submitting a request. These meetings are common, with many rulemakings hosting 10 or more meetings with the public. These meetings serve important roles by educating OIRA about issues implicated in particular rules, pointing OIRA to helpful comments, and potentially significantly changing rules under review. However, since EO 14215, OIRA has hosted only four meetings about independent agency rulemakings, suggesting regulated parties have not yet adapted to engaging effectively with OIRA on these matters.

The regulatory system systematically disadvantages public interest groups and frontline communities through structural barriers. EPA records show industry groups engaged in 170 times more informal communications with regulators than public interest organizations before rules were published. OIRA met with five times more industry representatives than public interest advocates between 2001-2011. Courts have negotiated rule proposals with litigious groups, burying public comments under industry submissions. Government entities like FERC and FEMA have established offices of public participation, demonstrating what is possible. Solutions include creating parallel offices across agencies, providing technical assistance to marginalized communities, and ensuring accessible information throughout the regulatory continuum.

OMB's Office of Information and Regulatory Affairs (OIRA) plays an enormous and vital role in reigning in the regulatory state and ensuring that regulations achieve important benefits while imposing minimal burdens on Americans. The president should maintain Executive Order 12866, which is the foundation of OIRA's review of regulatory actions. The administration should also maintain the recent extension of those standards to regulatory actions of the US Department of Treasury. OIRA review should also be required of the historically independent agencies, as the Office of Legal Counsel has found it legally permissible. If the current administration proceeds with its declared intent to modify aspects of EO 12866 or OMB Circular A-4, the related document that provides a foundation for cost-benefit analysis, the next president should immediately begin to undo those changes and develop a rigorous data-driven approach that will result in the least burdensome rules possible. The next president should also review Executive Order 13891.

Senator Merkley raised concerns about OIRA (Office of Information and Regulatory Affairs) being a place where regulations go to suffer and die with no transparency. He cited examples including the mercury air toxics rule, rear view cameras in cars, coal ash regulations, and the vaping rule that allowed illegal products on the market affecting millions of American youth. Young committed to using the presidential memo on improving and modernizing regulatory review to address this perception.

The Office of Information and Regulatory Affairs (OIRA), located in the Office of Management and Budget, was given responsibility for reviewing all major regulatory proposals across the government. When agencies like EPA want to propose new rulemaking, they must send the proposal to OIRA, which reviews it using a cost-benefit standard. Agencies are also required to prepare their own cost-benefit analysis. This created an initial antipathy between progressive protection-oriented groups and OIRA.

The Office of Information and Regulatory Affairs (OIRA), established during the Bush administration, is a White House agency that reviews federal regulations to assess their economic justification, having altered approximately 84% of EPA rule submissions; the review process involves extensive stakeholder meetings, with industry representatives and lobbyists participating in approximately 1,764 meetings compared to only 116 for public interest groups, raising concerns about regulatory bias toward business interests over public welfare.

The Office of Information and Regulatory Affairs (OIRA) at OMB plays a crucial role in the regulatory process, with its administrator often called the 'regulatory czar.' OIRA enforces the Paperwork Reduction Act and Executive Order 12866 as augmented by OMB Circular A-4. It reviews drafts of proposed and final regulations, coordinates retrospective reviews under Executive Order 13610, and oversees implementation of government-wide policies in information policy, privacy, and statistical policy areas. Executive Order 12866, originally adopted by President Clinton and most recently amended by President Biden's Executive Order 14094, sets thresholds for significant regulatory action. The Biden order increased the threshold to $200 million, required recognition of distributive impacts and equity, and mandated treating different people's costs differently based on declining marginal utility of income theory. The Paperwork Reduction Act (PRA) of 1980 requires agencies to obtain OMB control numbers, produce burden hour estimates, and get OMB clearance before releasing proposed rules requiring public information provision. The Regulatory Flexibility Act (RFA) of 1980 requires Initial and Final Regulatory Flexibility Analyses assessing effects on small entities (small businesses, governmental jurisdictions, and not-for-profit organizations).

The OECD's Regulatory Policy Outlook 2025 provides standardized metrics for measuring regulatory quality across 38 member countries: (1) The methodology was approved by all member countries, (2) It measures three key tools: public consultation, regulatory impact analysis, and ex-post evaluation, (3) Mexico has historically performed well in these areas, (4) The report provides data from 2023 and can be accessed publicly. This standardized approach allows for meaningful comparison of regulatory quality across countries and helps identify areas for improvement. The OECD uses a bathtub metaphor: the regulatory stock represents accumulated regulations, the tap represents new regulations, and the drain represents evaluation. Effective reform requires both reducing the tap and improving the drain. The proposed reform focuses primarily on the tap but neglects the drain, which may lead to continued accumulation of low-quality regulations.

Regulatory policy serves as a fundamental economic pillar, yet faces accountability challenges. Ukraine's OECD partnership includes bilateral agreements, an office in Kyiv, and active participation in committee sessions, including discussions during the 2022 invasion. Ukraine's regulatory framework includes regulatory impact analysis, though the legal framework is outdated. Approximately 1,600 local regulators operate without accountability for violations. The Verkhovna Rada has excluded itself from regulatory oversight, creating burdens. The State Regulatory Service acts as a business filter, blocking overly complex regulations, though some bodies bypass the Service through transitional provisions. The Service has veto authority, with approximately 20% of acts rejected this year.

This seminar is part of Brazil's regulatory cooperation policy with the OECD in consumer product safety, hosted by the Brazilian Institute of Education and the Post-Graduation Program in Public Policies at the Institute of Economics, Federal University of Rio de Janeiro. The OECD defines international regulatory cooperation as agreements, formal or informal, voluntary or legally binding, established between countries to promote cooperation in regulatory design, monitoring, enforcement, or exposure management. Brazil's policy is expressed through Decree 10,109 published in 2019, which incorporates the cooperation agreement into the Brazilian legal system. INMETRO (National Institute of Metrology, Quality and Technology) serves as Brazil's national accreditation body and comprehensive regulator covering both product safety and legal metrology. Unlike the US where these functions are split between NIST and CPSC, INMETRO consolidates these responsibilities. The institute operates 52 laboratories and participates in OECD Working Party on Consumer Product Safety, APEC Working Group, and regulatory policy committees. Bilateral cooperation includes long-standing relationships with CPSC, European Union, Germany, Korea, and NIST. Brazil has trade agreements with the EU, Korea, Canada, and Singapore, with the US agreement including an annex on good regulatory practices. A new regulatory framework launched in February 2024 incorporates international cooperation lessons, featuring essential requirements, presumption of conformity on standards, and regulatory impact assessments, with implementation by 2027.

The government argued that regulatory sandboxes were tools used by OECD countries and G7 nations, and that Canada was catching up with international standards. Critics countered that these sandboxes would allow companies to be exempt from conflict of interest laws, enabling them to receive government contracts despite having conflicts of interest with government officials. The Toronto Star, a non-conservative publication, had also raised concerns about these provisions.

Regulatory quality policy is a proven approach from OECD countries that improves the state's capacity to issue quality regulations through continuous, dynamic processes. The framework requires three essential elements: (1) Institutional commitment at the highest level formalized through legal provisions; (2) Institutional structures like regulatory quality committees; (3) Tools including regulatory impact analysis, administrative simplification, public consultation, and regulatory evaluation. The regulatory life cycle—planning, designing, reviewing, executing, enforcing, and evaluating—requires quality standards at each stage with active stakeholder participation. The goal is to produce regulations that are efficient, coherent, simple, and effective in achieving public policy objectives.