For more than 35 years, federal regulatory agencies have been required to notify the public about their upcoming rules in the United States to ensure the transparency of the rulemaking process. The Regulatory Flexibility Act requires that Cabinet departments, independent agencies, and independent regulatory agencies publish “regulatory flexibility agendas” in the Federal Register each April and October describing regulatory actions they are developing that are likely to have a significant economic impact on a substantial number of small entities. Further, Executive Order 12866 requires the same agencies to “prepare an agenda of all regulations under development or review, at a time and in a manner specified by the Administrator” of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB).
All agencies reportedly use the Unified Agenda of Federal Regulatory and Deregulatory Actions (the so-called “Unified Agenda”) to satisfy both of these requirements. Since 1983, the Regulatory Information Service Center (RISC), located within the General Services Administration (GSA), has compiled the Unified Agenda for OIRA. Usually published twice each year, the agenda provides data in a standardized format on regulatory and deregulatory activities under development by about 60 executive departments, agencies, and commissions. The “active” entries in the agenda are, in general, activities that will have a regulatory action within the next 12 months. For example, a “proposed rule stage” agenda entry indicates that the agency expects to issue a proposed rule (or close a proposed rule comment period) within the next 12 months; a “final rule stage” entry indicates that the agency expects to publish a final rule or take other final action within the next 12 months. The agenda has been available online since 1995, and has been available exclusively online since 2007.
However, concerns have been expressed about the predictive capacity of the agenda. A recent draft report prepared by Curtis W. Copeland for consideration of the Administrative Conference of the United States (ACUS) provides further empirical evidence to raise concerns about the accuracy of the agenda.
This report indicates that a number of “significant” rules (primarily final rules issued by Cabinet departments and independent agencies, and proposed and final rules issued by certain independent regulatory agencies) were published in the first half of 2014 without the Unified Agenda indicating that they were about to be issued. Conversely, almost half of the “economically significant” proposed and final rules that were predicted by the Spring 2013 edition of the agenda (e.g., those expected to have a $100 million impact on the economy) were not published during the following 16 months. In fact, many entries have appeared at the same stage of the agenda for years without any rulemaking action. Further, the Unified Agenda sometimes did not provide accurate information about the nature of agencies’ significant rules (e.g., indicating that a forthcoming rule was not significant when the published rule indicated that it was significant). Most notably, the Federal Communications Commission (FCC) does not use the agenda to identify forthcoming proposed or final rules, instead putting virtually all of the agency’s ongoing activity into a general “long-term action” category.
The total number of entries in the Unified Agenda declined in 2013 and 2014, perhaps because some entries have been kept in an undisclosed “pending” category that allows agencies to keep regulation identifier numbers and titles active while not publishing the entries in the agenda. Although some federal agencies reportedly update their agenda entries in the RISC database between the twice-yearly agenda publications, that information only becomes available to the public when the agenda is published twice a year. Two related databases that RISC maintains are updated daily, and some agencies maintain their own information systems and websites that provide more up-to-date rulemaking information than is available through the agenda.
The report recommends that OIRA determine whether the Unified Agenda should become a “real-time” database of agency rulemaking actions. If OIRA concludes that a real-time agenda is not justified or feasible for all rules, the report recommends that it take other steps to ensure that the public has access to more up-to-date information on agencies’ ongoing and completed actions by providing links on the Unified Agenda website to departmental and agency websites and information systems. If OIRA concludes that a real-time agenda is justified or feasible a number of recommendations are advanced by the report in order to reduce inconsistencies in the agenda information.
(Fabrizio Di Mascio)
Photo credits: Philip Chapman-Bell