1) Apr 6 -- Executive Order on Modernizing Regulatory Review
Section 1. Improving the Effectiveness of the Regulatory Review Process. . . . (b) Section 3(f) of Executive Order 12866 is hereby amended to read as follows:
(f) “Significant regulatory action” means any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities; . . .
Sec. 2. Affirmative Promotion of Inclusive Regulatory Policy and Public Participation.
(a) To the extent practicable and consistent with applicable law, regulatory actions should be informed by input from interested or affected communities; State, local, territorial, and Tribal officials and agencies; interested or affected parties in the private sector and other regulated entities; those with expertise in relevant disciplines; and the public as a whole. Opportunities for public participation shall be designed to promote equitable and meaningful participation by a range of interested or affected parties, including underserved communities.
(b) To inform the regulatory planning process, executive departments and agencies (agencies) shall, to the extent practicable and consistent with applicable law:
(i) clarify opportunities for interested persons to petition for the issuance, amendment, or repeal of a rule under 5 U.S.C. 553(e);
(ii) endeavor to respond to such petitions efficiently, in light of agency judgments of available resources and priorities; and
(iii) maintain, subject to available resources, a log of such petitions received, and share with the Administrator of the Office of Information and Regulatory Affairs (OIRA), upon request, information on the status of recently resolved and pending petitions.
(c) To inform the development of regulatory agendas and plans, agencies shall endeavor, as practicable and appropriate, to proactively engage interested or affected parties, including members of underserved communities; consumers; workers and labor organizations; program beneficiaries; businesses and regulated entities; those with expertise in relevant disciplines; and other parties that may be interested or affected. These efforts shall incorporate, to the extent consistent with applicable law, best practices for information accessibility and engagement with interested or affected parties, including, as practicable and appropriate, community-based outreach; outreach to organizations that work with interested or affected parties; use of agency field offices; use of alternative platforms and media for engaging the public; and expansion of public capacity for engaging in the rulemaking process.
(d) The Administrator of OIRA, in consultation with relevant agencies, as appropriate, shall consider guidance or tools to modernize the notice-and-comment process, including through technological changes. These reforms may include guidance or tools to address mass comments, computer-generated comments (such as those generated through artificial intelligence), and falsely attributed comments.
(e) Section 6(b)(4) of Executive Order 12866 establishes a process for persons not employed by the executive branch of the Federal Government to request meetings with OIRA officials regarding the substance of regulatory actions under OIRA review. Public trust in the regulatory process depends on protecting regulatory development from the risk or appearance of disparate and undue influence, including in the OIRA review process. In order to reduce this risk or appearance, the Administrator of OIRA shall, to the extent practicable and consistent with applicable law:
(i) Provide information to facilitate the initiation of meeting requests regarding regulatory actions under OIRA review from potential participants not employed by the executive branch of the Federal Government who have not historically requested such meetings, including those from underserved communities; and
(ii) Implement reforms to improve procedures and policies with respect to OIRA’s consideration of meeting requests initiated by persons not employed by the executive branch of the Federal Government regarding the substance of regulatory actions under OIRA review to further the efficiency and effectiveness of such meetings. These reforms may include:
(A) efforts to ensure access for meeting requesters who have not historically requested such meetings;
(B) discouraging meeting requests that are duplicative of earlier meetings with OIRA regarding the same regulatory action by the same meeting requesters;
(C) consolidation of meetings by requester, subject matter, or any other consistently applied factors deemed appropriate to improve efficiency and effectiveness; and
(D) disclosure of data in an open, machine-readable, and accessible format that includes the dates and names of individuals involved in all substantive meetings and the subject matter discussed during such meetings, as required by section 6(b)(4)(C)(iii) of Executive Order 12866, so as to better facilitate transparency and analysis.
https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/
https://www.federalregister.gov/d/2023-07760
2) Apr 6 -- Memorandum on Implementation of Modernizing Regulatory Review Executive Order
On April 6, 2023, the President issued an Executive Order (E.O.) entitled “Modernizing Regulatory Review” (hereinafter, the Modernizing E.O.). The Modernizing E.O. advances the implementation of the Presidential Memorandum of January 20, 2021 (hereinafter, Presidential Memorandum), setting forth specific actions for Federal agencies and the Office of Information and Regulatory Affairs (OIRA) designed to modernize the regulatory process in order to advance policies that promote the public interest and address national priorities. The Modernizing E.O., among other things, amends Section 3(f)(1) of E.O. 12866 (Regulatory Planning and Review) to increase the monetary threshold for significance under that provision, amends Section 3(f)(4) to clarify what is significant under that provision, and encourages greater public participation during all stages of the regulatory process.
To assist agencies in their implementation of the Modernizing E.O., OIRA is issuing this Memorandum. OIRA has also prepared separate guidance pursuant to Section 2(e) of the Modernizing E.O. with respect to meetings requested by the public regarding the review of rules under E.O. 12866, for which OIRA is requesting public comment.
https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf
3) Guidance Implementing Section 2(e) of the Executive Order of April 6, 2023 (Modernizing Regulatory Review)
This draft guidance, in the form of questions and answers, addresses the requirements of Section 2(e) of the Executive Order (E.O.) of April 6, 2023, titled “Modernizing Regulatory Review” (hereinafter, Modernizing E.O.). That section of the Modernizing E.O. concerns the process for persons not employed by the executive branch to request meetings with Office of Information and Regulatory Affairs (OIRA) officials regarding the substance of regulatory actions under OIRA review—a process established under Section 6(b)(4) of Executive Order 12866 (Regulatory Planning and Review). This draft guidance refers to such meetings as “E.O. 12866 meetings.”
The Modernizing E.O. directs the OIRA Administrator to implement reforms designed to reduce the risk or the appearance of disparate and undue influence on regulatory development. Accordingly, this draft guidance explains OIRA’s preliminary proposal for implementing Modernizing E.O. Section 2(e), which states that the Administrator of OIRA shall, to the extent practicable and consistent with law: . . .
OIRA welcomes comments on all aspects of this draft guidance, as well as suggestions to achieve the goals of the Modernizing E.O. with respect to E.O. 12866 meetings. OIRA also anticipates further opportunities for public participation designed to promote equitable and meaningful participation by a range of interested or affected parties, including underserved communities, as part of implementation of the Modernizing E.O. Comments on this draft guidance should be provided via Regulations.gov (at the docket OMB-2022-0011) within the 60-day comment period. OIRA will revise these questions and answers and E.O. 12866 meeting practices as necessary in response to comments and broader public engagement; should such revisions require changes to the related collection of information, the Office of Management and Budget (OMB) anticipates implementation of revised guidance only after those changes to the related collection of information are made. . . .
Draft guidance:
https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOSection2eDraftGuidance.pdf
Request for public comment (by 6/6):
https://www.federalregister.gov/d/2023-07360
4) Commentary
-- Modernizing Regulatory Review Actions, Regulatory Studies Center, GWU
https://regulatorystudies.columbian.gwu.edu/modernizing-regulatory-review-actions
-- White House moves to modernize regulatory review - Yale Journal on Regulation
https://www.yalejreg.com/nc/white-house-moves-to-modernize-regulatory-review/
-- Biden's Regulatory Update is Finally Here - Government Executive
https://www.govexec.com/management/2023/04/bidens-regulatory-update-finally-here/384909/