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Red Tapeworm 2014: Federal Regulatory Disclosure Becomes More Confused

This is Part 18 of a series taking a walk through some sections of Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State (2014 Edition)

The Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions” normally appears in the Federal Register each fall and (minus the Regulatory Plan) each spring.

In normal circumstances, the agenda helps give the researcher a vague sense of the flow in the regulatory pipeline, by detailing rules recently completed, plus those anticipated within the upcoming 12 months by federal departments, agencies, and commissions. (There are 60 in the newest edition). As a cross-sectional snapshot of rules moving through the regulatory pipeline, the agenda compiles agency-reported federal regulatory actions at several stages:

  • Prerule actions;
  • Proposed and final rules;
  • Actions completed during the previous few months; and
  • Anticipated longer-term rulemakings beyond a 12-month horizon.

The rules it contains may often carry over at the same stage from one year to the next, or they may reappear in subsequent agendas at different stages. The agenda’s rules primarily affect the private sector, but many also affect state and local governments and the federal government itself.

A complication is that agencies are not required to limit their regulatory activity to what they publish in the agenda. As the Federal Register has noted:

The Regulatory Plan and the Unified Agenda do not create a legal obligation on agencies to adhere to schedules in this publication or to confine their regulatory activities to those regulations that appear within it.

Until the Spring 2014 agenda’s release in late May, the appearance of the agenda had become quite irregular:

  • The fall 2011 edition did not appear until January 20, 2012.
  • The spring 2012 edition never appeared at all.
  • A solitary edition with no seasonal designation finally appeared the Friday before the Christmas 2012 holiday with no clarity on how its methodology might have been affected by the delay.

Then in Spring 2013, something called the “Spring 2013 Update to the Unified Agenda of Federal Regulatory and Deregulatory Actions” appeared instead of the normal Unified Agenda. Then in late 2013, echoing 2012’s pre-Santa version, the Fall edition appeared the day before Thanksgiving (coinciding with an employer mandate delay for Obamacare in defiance of that law’s own strictures).

It is important to be aware of the environment within agenda production has recently taken place.

While rules finalized in the Federal Register remain above 3,500 annually, the overall rule count now reported in the Unified Agenda is declining. This is perhaps an effect of these reporting irregularities but more likely new guidance memos on agenda production, and the administration’s own formal and informal rule-making delays for political purposes that we noted before.

In 2012, spring and fall guidelines from the OMB’s then-director of the Office of Information and Regulatory Affairs, Cass Sunstein, altered directives to agencies regarding their agenda reporting:

In recent years, a large number of Unified Agenda entries have been for regulatory actions for which no real activity is expected within the coming year. Many of these entries are listed as “Long-Term.” Please consider terminating the listing of such entries until some action is likely to occur.…

Many entries are listed with projected dates that have simply been moved back year after year, with no action taken. Unless your agency realistically intends to take action in the next 12 months, you can remove these items from the Agenda.

Newly appointed Administrator Howard Shelanski issued a similar memo regarding the Unified Agenda on August 7, 2013, with some verbatim wording. By this time, “please consider removing” became “please remove.”

As regulatory expert Susan Dudley notes, the changes introduced in the Shelanski and Sunstein memos might be beneficial, but “to the extent that reclassifying actions reduces the public’s ability to understand upcoming regulatory activity, the revisions could reduce transparency and accountability.”

Upon release of the Fall 2013 edition of the agenda, one commenter noted the fluid nature of the agenda revelations, stating that “The agenda provides only a semi-filtered view of each agency’s intentions, and must be considered within its limitations,” and that they “reflect what the agency wants to make public, not necessarily all that they are actually considering, and some highly controversial issues may be withheld.”

Later we’ll look at where rule counts are increasing and decreasing.

Red Tapeworm 2014 Series:

  • Part 1: Guess Which Is the Largest Government on Earth?
  • Part 2: Tardy Bureaucrats Gone Wild
  • Part 3: Reckoning the Dollar Cost of Federal Regulation
  • Part 4: Regulations Catching Up to Government Spending?
  • Part 5: Regulations Cost More than Federal Income Taxes
  • Part 6: The Federal Government “Eats” 31 Percent Of The U.S. Economy
  • Part 7: U.S. Regulation Compared to the World’s Largest Economies
  • Part 8: The High Cost of Overcriminalization 
  • Part 9: Thousands of Federal Register Pages
  • Part 10: A Record Number of Federal Register Final Rule Pages
  • Part 11: Federal Register Pages Per Decade
  • Part 12:  Number of Proposed and Final Rules In the Federal Register
  • Part 13: Cumulative Final Rules in the Federal Register
  • Part 14: The Expanding Code of Federal Regulations
  • Part 15: A Fourth of July Reflection on Presidential Executive Orders and Loss of Liberty
  • Part 16:  Over 24,000 Pen and Phone “Public Notices” Annually
  • Part 17: When Regulations Get Delayed