Lia Cattaneo


Despite attempts to improve the transparency of its operations, the Office of Information and Regulatory Affairs (“OIRA”) has often been maligned as a “black box” subject to improper influence by outside groups, particularly industry. Contributing to this perspective are “12,866 Meetings”: meetings between OIRA, outside parties, and some-times agencies that are governed by disclosure requirements in Executive Order 12,866, as well as strong norms within OIRA. Through an examination of empirical studies and theoretical mechanisms of influence, this Article provides a comprehensive assessment of 12,866 Meetings and their role in the regulatory development process. I argue that there is little evidence to support the view that OIRA is improperly influenced and an equivalent, if not greater volume of evidence supports the view that 12,866 Meetings have a beneficial effect on the rulemaking process. I then situate OIRA’s process within the Administrative Procedure Act’s legal standards for ex parte communications—off-the-record communications between agencies and parties to agency proceedings. Not only does OIRA’s process exceed the relatively minimal statutorily- and judicially-imposed standards, but OIRA’s level of transparency is nearly unmatched by any agency across the federal government. If OIRA is a black box, the agencies are a patchwork of even-blacker boxes. To bring more transparency to the rulemaking process, the Biden Administration should issue an executive order allowing OIRA to become an influencer by requiring federal agencies to match OIRA’s strong disclosure standards for ex parte com-munications.


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