The Office of Information and Regulatory Affairs (OIRA) recently published for public comment a draft proposal for revision of Circular A‑4, which provides agencies with guidance regarding how to conduct regulatory analyses required by statutes and executive orders.

The revision is well-intentioned in its attempts to provide agencies’ access to important research advances in economic cost–benefit analysis and public policy decision-making tools over the past 20 years. However, it gives inadequate attention to public input as vital to the rulemaking process, and implementation of OIRA’s A‑4 revisions by agencies subject to politically determined rulemaking schedules may lead to obfuscation, reduced transparency, and discouragement of public input.

An improved A‑4 would do the following:

  • Encourage agencies to conduct systematic evaluations of costs, benefits, and compliance of regulations already in place before undertaking rulemakings to revise them and ensure that the interested public has input into the process.
  • Encourage agencies to expand use of advance notices of proposed rulemakings to promote public input for selection of regulatory alternatives to be examined and for development of data sources and analysis methods by which the costs, benefits, and other economic and societal effects of regulatory alternatives will be compared before an agency identifies its preferred approach.
  • Ensure that agencies provide ample time for public comment at each stage of the process.

Each of these has already been practiced by some agencies in some contexts, and no new authority would be needed to encourage or require agencies to adopt these practices, especially for economically significant rulemakings. Together, these practices could do more to improve the quality of public participation and agencies’ decisions than any of the items proposed for the revision of A‑4.

Evaluation before regulation / Current A‑4 guidance and the proposed revision implicitly assume that an agency’s regulatory action is in response to a newly discovered market failure. In reality, most rulemakings today are revisions to existing regulations. While the need for any regulation of markets requires grounding in evidence of market failure, revisions to existing regulations should also consider the question of regulatory failure. Is revision of the regulation needed because the underlying market failure or other salient conditions have changed, because flaws in the design of the current regulation have been found, or because the existing regulation has not been enforced effectively? In the latter case, no new rulemaking is justified, and instead the responsibility of the agency is to use its resources to achieve better compliance with the standard already in place through better compliance assistance or more effective enforcement.

The 2014 OSHA rulemaking to increase the stringency of occupational silica exposure limits is a case in point. The agency used ill-health data to justify making the standard more stringent and more costly when, in fact, lax enforcement of the existing standards accounted for most of the continuing illness reports. Agencies should not be allowed to hide their own enforcement failures by imposing new regulatory costs on the majority who already comply while letting the bad actors profit from noncompliance. By using the evaluation analysis stage to conduct surveys and otherwise collect data, the agency may be able to obtain valuable information to inform policy decisions.

Engage the public / Some agencies, most notably the Energy Efficiency Office in the Department of Energy, have previously used the advance notice of proposed rulemaking devices to engage the public to provide input before selecting a proposed regulatory approach in order to solicit public input to recommend alternative regulatory specifications. This approach has been effective in engaging the public in the substantive process, arguably improving the quality of ultimate regulatory decisions. While adding this step may increase the length of time of the total rulemaking process, the approach may improve outcomes and help agencies avoid potential litigation from regulated entities.

Provide ample time / Agencies often publish proposed rules in the Federal Register that allow only 60 to 90 days for public comment input. When the publication of the proposed rule is the first information that interested parties receive about the intentions and justifying analysis of the regulatory agency, such short notice is inadequate for meaningful public response, as there is too little time for meaningful collection of relevant data or conducting alternative empirical analyses. Short comment periods effectively shut out meaningful public participation in the regulatory process and make a mockery of the requirements of the Administrative Procedure Act. The more sophisticated analytical methods proposed by the Office of Information and Regulatory Affairs (OIRA) in the proposed A‑4 revision would exacerbate this problem. OIRA should use its persuasive power in Circular A‑4 to better ensure the rights of the public to participate meaningfully in the regulatory process.

For economically significant rulemakings, OIRA should expect agencies to provide at least a 180-day period for public comment response, which should only be reduced if the agency has previously engaged the public in prior evaluations of existing standards. Some may object to the resulting delays in the process, but these delays may be less than the delays and false starts that often result from a process in which the public is excluded by executive agencies and, instead, must pursue the alternative route of judicial review and ultimately legislative action under the Congressional Review Act.

Good, efficient, and effective regulation results from a collaborative process in which all interested parties have a voice throughout the entire process.