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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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In July 2023, the Biden administration renewed its commitment to increasing public participation in the regulatory process by issuing a new Office of Management and Budget (OMB) Memorandum (Memo), “<a href="https://www.whitehouse.gov/wp-content/uploads/2023/07/Broadening-Public-Participation-and-Community-Engagement-in-the-Regulatory-Process.pdf">Broadening Public Participation and Community Engagement in the Regulatory Process</a>.” The OMB Memo builds on principles outlined in the administration’s prior <a href="https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review">Executive Order 14094</a> (April 6, 2023), “Modernizing Regulatory Review,” which encouraged federal agencies to provide equitable opportunities for public input by a range of interested or affected parties, particularly underserved communities. The OMB Memo also complements previous guidance issued in a memorandum titled “<a href="https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-10.pdf">Improving Access to Public Benefits Programs Through the Paperwork Reduction Act</a>,” which focuses on removing burdens associated with public benefits and services.

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The administration recognizes that both public participation and community engagement are the cornerstones for building public trust, formulating regulations that are responsive to public needs, and providing accountability for government decision-making. The OMB Memo defines public participation as “. . . any process that involves members of the public in government decision-making.” Community engagement is defined as “a more specific concept within public participation that involves agency actions to build trust-based, long-term, and two-way relationships with communities, including underserved communities that have been historically left out of government decision-making.”

Before finalizing this guidance, the Office of Information and Regulatory Affairs (OIRA) in the OMB conducted four listening sessions and two public comment periods from October 2022 through March 2023. The purpose of this outreach was to characterize how the public was currently engaging in the regulatory process, highlight persistent challenges, solicit suggestions on overcoming obstacles and obtain feedback on draft recommendations.

Known Barriers to Engagement in the Regulatory Process

The most traditional way in which agencies receive written feedback from the public on their proposed rulemaking is through notice and comment. In turn, a federal agency is required to review and consider the written comments as it finalizes its rulemaking. This process, however, is not as straightforward as it may appear, despite the availability of online commenting. Listed below are some persistent obstacles to increasing public engagement within the federal regulatory process:

Not every regulatory proposal will require significant public engagement. As a result, OIRA recommends that federal agencies manage their resources by engaging early in deliberate planning for public participation and engagement. Agencies should also determine what type of information or input would be most relevant for the regulation at issue. As a best practice, a federal agency should also determine from the outset which communities are likely to be impacted most acutely by the regulatory action. Then, it should consider the barriers or challenges those communities may face and the community’s historical relationship with the federal government.

OIRA recommends that agencies prioritize public engagement before defining regulatory priorities. The administration believes doing so would enable agencies to be influenced by a multitude of perspectives before defining problems and solutions and would generate better policy decisions. The following are a few of OMB’s specific public engagement recommendations to help defeat known communication barriers:

This fall, OIRA will update its Unified Agenda for Federal Regulatory Actions (Agenda) which catalogs each agency’s proposed regulations. The Agenda also includes the Regulatory Plan (Plan) which contains brief narratives of the regulatory priorities and activities planned for the upcoming year. The OMB Memo calls for both the Agenda and Plan to serve as another avenue to increase public participation and engagement. Beginning in the Fall of 2023, agencies should consider sharing how information received from past public engagement is considered by the agency and provide plans for future public engagement over the upcoming year by listing opportunities for affected communities to engage in regulatory activities. OIRA also calls upon agencies to describe in the Agenda plan entries how public engagement informed the individual regulatory proposals, draft Agenda entries, and plan submissions in accordance with the OMB Memo.

Change undoubtedly will be slow, and OMB’s guidance is not intended to be retroactive, but the administration’s quest is clear—removing hurdles to enable meaningful engagement with communities typically underrepresented in the federal regulatory process. This guidance is certainly favorable to underserved communities that are now the subject of many of the administration’s priorities and environmental initiatives. The impact on the regulated business community is likely to be more mixed as increased processes will sometimes yield unfavorable decisions on potential projects. Increased transparency, however, may create new avenues for Administrative Procedure Act litigation.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2023/09/Biden-Administration-Calls-for-Broadened-Participation-and-Public-Engagement-in-Federal-Regulatory-Process.pdf

No Longer Sidelined: Biden Administration Calls for Broadened Participation and Public Engagement in Federal Regulatory Process

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