Submitted via regulations.gov
Re: Docket ID OMB-2018-0011, Comment in Response to Information on Meetings With Outside Parties Pursuant to Executive Order 12866
Dear Ms. Jones:
The Project On Government Oversight (POGO) submits the following comment on the guidance entitled “Information on Meetings With Outside Parties Pursuant to Executive Order 12866,” submitted by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) and published in the Federal Register on February 1, 2019.1
POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
POGO is concerned because the proposed guidance modification does not sufficiently ensure that meetings OIRA has with outside parties and information received from such parties concerning pending regulatory actions will be sufficiently transparent. The information OIRA proposes to collect and disclose are too limited in scope, and the office’s lack of enforcement or accountability measures leaves it unclear how the office will ensure implementation of this guidance.
Scope of Disclosure Policy
The OIRA guidance lays out the four categories of information that the office will collect and publicly disclose for all meetings requested by outside parties concerning a regulatory action being reviewed by OIRA. The way the guidance is structured limits these transparency requirements to formal face-to-face meetings in which the parties explicitly discuss a singular regulatory action. However, there are many ways an outside party might convey information to OIRA concerning a pending regulatory review that do not involve such a meeting. The disclosure requirements of this guidance should apply to all communications OIRA has with outside parties concerning regulatory actions, such as telephone discussions, email exchanges, and comments about pending regulatory matters at the end of a meeting on another topic. Not including all communications creates loopholes that would allow entities to avoid having their efforts to influence OIRA disclosed to the public.
Additionally, POGO strongly recommends that OIRA revise the guidance to make it clear that it applies to information exchanged during both informal and formal reviews of agency regulatory actions. The guidance currently uses the language “during a review.” But OIRA has interpreted “review” as only meaning formal reviews, which are often brief procedures, sometimes as short as a single day, that occur after a much longer informal review that can take weeks or even months to complete.2
Specific Information Collected
The guidance specifically lists the following four categories of information to be collected and disclosed for meetings with outside parties:
“1. Names of all attendees who will be present at the meeting from the outside party or parties. Each attendee’s organization or affiliation. If an attendee is representing another organization, please provide the name of the organization the attendee is representing.
2. The name of the regulatory action under review on which the party would like to present its views.
3. Electronic copies of all of briefing materials that will be used during the presentation.
4. An acknowledgment by the requesting party that all information submitted to OIRA pursuant to this collection and meeting request will be made publically [sic] available at Reginfo.gov.”
POGO recommends the following changes:
The first category covering the names and affiliations of outside parties attending a meeting should be expanded to include government officials. The names and agency affiliations of government officials in attendance, as well as the name of the agency issuing the regulatory action, should be disclosed to the public.
The third category covering briefing materials should be broadened in scope. As the guidance is currently written, it is possible for OIRA to not disclose materials exchanged in advance of the meeting or as part of a follow-up meeting because the materials were not “used during the presentation.” OIRA should disclose all materials provided by attendees or their associates before, during, and after the meeting.
The language of the fourth category should make it clear that collection and posting of meeting information is not contingent on OIRA receiving an acknowledgement from a requesting party. It is a good procedure for OIRA to make its disclosure requirement clear to outside parties, but if an outside party refuses to acknowledge the requirement, this cannot and should not prevent OIRA from making the disclosure. POGO recommends that the category be changed to include two items: a certification from an OIRA official that the office gave an explanation of its disclosure policy to the outside party, and either a receipt of acknowledgement from the outside party or an OIRA statement that the outside party refused to provide such an acknowledgement.
Finally, the guidance does not include any enforcement or accountability provisions to ensure the described information is collected and disclosed for all regulatory actions being reviewed. POGO recommends that the guidance assign compliance responsibility to a specific senior OIRA official, such the Deputy Administrator. While that official would not be required to review or post all the covered information, they would be responsible for ensuring that all OIRA personnel understand and comply with the requirements. This official would also be the point of contact should Congress or members of the public wish to raise concerns about implementation of this disclosure policy.
The policy should also task the OIRA official with conducting an annual public review of the disclosures made under the policy and with determining if any information or meetings were not disclosed. The process should include an opportunity for the public to comment and raise concerns, which the OIRA official would respond to in the final public review. This would create an ongoing implementation record for the office and a roadmap for any problems or concerns that should be addressed.
The public has a right to know about efforts by outside parties to influence the rulemaking process. Properly structured and implemented, the OIRA guidance can be an important component of that transparency. But without the recommended changes, POGO is concerned that the guidance offers too many loopholes that would allow outside influence to occur with no public record. We urge you to implement the above recommendations and pursue a more complete transparency policy that allows for improved public accountability.
Senior Policy Analyst
Project On Government Oversight