The fall Unified Agenda of Federal Regulatory and Deregulatory Actions always seems to appear just before the Holidays. You know, when nobody’s really looking.
The new federal government compilation was just released on Friday.
The Agenda is supposed to help give researchers a sense of what’s happening with Washington bureaucracies and their regulations.
But in the era of “pen and phone” and executive orders, it’s not so clear any more, and it’s hard to tell what’s going on.
On the other hand as we’ll see, costly “economically significant” rules are at record levels under President Obama.
As a cross-sectional snapshot of rules moving through the regulatory pipeline, the Agenda compiles agency-reported federal regulatory priority 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.
- Total agency rules in the 2014 Unified Agenda
But lately, the release dates seem timed to draw as little attention to the Agenda as possible.
Consider the following recent release dates of the twice yearly Agenda.
- The 29 years between 1983 to 2011: Pretty much like clockwork every spring and fall, usually April and October
- Spring 2012: Not released at all
- Fall 2012: The Friday before Christmas (that Monday was Christmas Eve)
- Spring 2013: The day before July 4th (a little late for “spring”)
- Fall 2013: The day before Thanksgiving
- Fall 2014: The Friday before Thanksgiving
What exactly is it with the Unified Agenda and holidays? Other than, well, that bit about nobody looking at it.
The new Agenda reports on at total of 3,415 rules and regulations at the “active,” “completed” and “long-term” stages. That’s up from 3,305 last year, but down from 4,062 at this point in 2012.
The chart nearby shows trends for the past few years, and a big drop in the past two. Rules deemed “active” are down slightly over the past year, while rules “completed” rose from 462 to 629, and long-term rules moved up from 446 to 465.
Eyeballing it, the biggest falloff in overall rules recently has been those designated as “long-term.” The drop in those noted as “completed” is somewhat mysterious, given that the number of rules finalized in the Federal Register each year has been rather constant. Note however that completed rules just ticked upward, headed back toward “normal” levels; so we’ll have to keep an eye on the bureaucracies.
Despite the new upticks in completed and long-term rules, overally rules ostensibly appear to be historically low. But unfortunately, given an Environmental Protection Agency that’s not going to “sit around and wait” for Congress to act, and the ongoing rollouts of Obamacare and Dodd-Frank, not very plausible.
What gives? While the Agenda seems to imply less regulatory activity, the pace of Federal Register pages (they just topped 70,000 today, as a matter of fact) and the number of final and proposed regulations remains as high as ever. They seem to accumulate each year without relief.
Moreover, a costly subset of the completed rules are unambiguously up.
The rules in the Unified Agenda pipeline that officially qualify as “economically significant” ($100 million-plus in annual impact) numbered 200 in 2014, compared to 191 last year and 224 the year before that. This is taking into account, active (131), completed (31), and long-term (38).
The “completed” component of these is interesting. As I mentioned earlier, here Obama is in recent record territory when we look at the total of what’s in each year’s Spring plus Fall Agenda. Consider President George Bush’s final six years compared to Obama’s first six:
Bush’s last six years: Average 46 annually
Obama’s six years: Average 68 annually
That’s pretty revealing: Obama averages 68 compared to Bush’s 46. Still it’s unclear what the Agenda really reveals these days when it comes to overall rules, and more clarity is needed, particularly as “regulatory dark matter” competes with ordinary regulations and even actual laws.
A partial explanation for lower figures reported in the Unified Agenda must surely be the 2012 Guidelines from the OMB’s former director of the Office of Information and Regulatory Affairs, Cass Sunstein. This memo changed agency directives regarding Agenda reporting in significant ways:
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.
Administrator Howard Shelanski issued an August 7, 2013, with similar wording. I disagree that long-term action reporting should be de-emphasized. In the pen and phone era, that’s where much of the tomorrow’s action will be, and having the heads up is worthwhile.
All this lack of clarity was probably inevitable. As the Federal Register has long ominously 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.”
I’m not sure how much bigger a loophole runaway federal agencies would need. It’s easy for them to not take the Unified Agenda very seriously.
I thought the Federal Regulations Advisor blog summed up the new Agenda rather well: ”…Moreover, the agency agendas reflect what the agency wants to make public, not necessarily all that they are actually considering, and some highly controversial issues may be withheld.”
That’s why the Unified Agenda is data, but not necessarily information. Congress will need to reform such regulatory disclosures, as well as address accountability issues, ideally by requiring that Congress approve all major agency regulations before they are binding on you and me.