Disclosure at the Office of Information and Regulatory Affairs: Written Comments and Telephone Records Suspiciously Absent

by Sam Abbott, 2/26/2013

In 1981, President Reagan signed an executive order charging the Office of Information and Regulatory Affairs (OIRA) with reviewing all economically significant rules and rejecting those that did not pass a strict cost-benefit test. Supporters of environmental, consumer, and worker protection standards have long criticized the office for failing to make its analyses public. Moreover, the office has a reputation for meeting with industry interests behind closed doors and for engaging in intrusive back-and-forth exchanges with agencies over proposed rules. This often results in the office delaying, watering down, or blocking new standards and safeguards.

As a result of this criticism and congressional pressure, OIRA promised increased transparency in a 1986 memo. OIRA agreed to create a public record of individuals attending any meetings on pending rules, with a summary of any oral or written communications from outside parties on those rules. This policy was incorporated into an executive order signed by President Clinton in 1993. The order mandates that "OIRA shall maintain a publically available log that shall contain … a notation of all written communications forwarded to an issuing agency … [and] the dates and names of individuals involved in all substantive oral communication." In 2001, OIRA began posting summaries of its contacts on rules on its website.

A review of the records of meetings and other communications listed on OIRA's website suggests that the office is not following its own disclosure policies. OIRA's website includes a list of "OIRA Communications with Outside Parties" classified as "Meeting Records," "Oral Communications," or "Public Comments." Oral communications are defined by executive order as including "telephone conversations between OIRA personnel and any person not employed by the executive branch," and public comments refer to written comments submitted to OIRA by outside parties. (The "public comments" label is confusing because most people think of public comments as those submitted as part of the regulatory process under the Administrative Procedure Act.)

These records are organized by agency. We examined records for the Department of Transportation's National Highway and Traffic Safety Administration (NHTSA), the Department of Labor's Occupational Safety and Health Administration (OSHA), and all divisions of the U.S. Environmental Protection Agency (EPA). The staggering discrepancy among reported meetings, written comments, and substantive conversations suggests OIRA's review of rules remains unreasonably opaque despite its stated disclosure policy.

For the three agencies we reviewed, we found that OIRA made records available for 647 meetings between October 2001 and January 2013. For the same period, OIRA made only 28 written comments from outside parties available to the public, and staff reported only nine substantive phone calls from outside parties. It is hard to believe that OIRA staff had only nine substantive phone conversations with outside groups interested in OSHA, NHTSA, or EPA rules under review when it held 647 meetings on those rules.

This discrepancy is especially pronounced when looking at disclosed meetings and communications related to EPA rules. From 2001 to 2013, OIRA disclosed 581 meeting records, just 26 written comments from outside interests, and only nine phone conservations. While one does not expect an equal number of meetings, comments, and phone calls for every topic, discrepancies this large are suspicious.

Meetings, Written Comments, and Conversations with Outside Interests Publicly Reported by OIRA for EPA Rules, 2001-2013
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Here's another example, this one related to a specific EPA rule: from November 2009 to April 2010, OIRA met 43 times with outside stakeholders and EPA officials to discuss a topic identified simply as "Coal Combustion Residuals," yet the office disclosed no written comments or oral communications with stakeholders. Such a scenario implies that not one person who came to any of those 43 meetings brought talking points for OIRA staff or followed up with an e-mail or phone call.

Disclosure related to transportation and worker safety rules followed a similar pattern. Over a 12-year period, OIRA disclosed 37 meetings, two written comments, and no phone calls on transportation safety rules. During the same 12 years, the office reported just 29 meetings on worker safety rules – with no reported phone calls or written comments. The most recent written comment, on an issue described only as "Tire Upgrade Rule," is dated June 4, 2003. While there is no direct evidence to the contrary, it is difficult to believe that in the past 10 years, there have been no written comments submitted to or phone calls taken by staff at OIRA on any of the rules related to highway, traffic, and occupational safety.

Meetings with Outside Interests on EPA Rules, Publicly Reported by OIRA, 2001-2013
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Transparency and disclosure are crucial to the regulatory process. To ensure that this process serves the public and to avoid charges that its staff bend to industry pressure, OIRA needs to follow the disclosure requirements set by executive order almost two decades ago. Congress also has a role: the House and Senate should ensure the meetings and communications that influence the regulatory process are accurately documented and publicly available to all Americans.

Editor's note: This article has been modified since its original publication date.