Missing: Regulatory transparency

Every spring and fall, as certain as the turning of the seasons, the General Services Administration’s Regulatory Information Service Center (RISC) issues a new edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions. Or it did, until this year. Published in the Federal Register around April and October of every year, the Unified Agenda is one of the more important transparency measures we have for keeping an eye on federal regulations (available online at RegInfo.gov). In it, rulemaking agencies disclose what rules they have at various stages of the regulatory pipeline, along with rules likely to move in the near future.

The problem is that it’s now October, and neither the spring nor the fall 2012 editions of the Unified Agenda have been published. The most recent edition we have is that of fall 2011, and even that was published late. On September 13, one of us (Crews) was told by RISC, “Regrettably, as of now we don’t have a date as to when the spring Unified Agenda will be published. Please continue to monitor RegInfo.gov for further updates.” It’s still not there. The fall 2012 edition is due soon, but we are not holding our breath for it to appear. This is an important story, and yet it has received little or no press coverage.

This is a real shame. The Unified Agenda is an essential tool for monitoring the size and costs of the regulatory state, and its quality has dramatically improved since the first edition was published in 1981. The rise of the Internet naturally brought us the online version a few years ago. Last year, the database was further improved to allow easier segregation of “Active,” “Completed,” and “Long-Term” actions.

These delays matter because regulatory uncertainty is a real phenomenon that keeps real businessmen up at night. An on-time Unified Agenda would do at least some good toward alleviating the problem by providing updated information on upcoming regulatory changes. So, about all we can say at this point is that there are 62,132 pages in this year’s Federal Register, and that 3,045 rules have been finalized in 2012 to date. That is roughly on pace with 2011, which saw a near-record 81,247 pages published in the Federal Register and 3,807 rules finalized by this time last year.

We are also still waiting for the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs to publish the final 2012 version of its annual Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, which last year estimated that major federal regulations published between 2000 and 2010 cost a total of $43.7 billion to $61.7 billion a year. The draft version appeared in March 2012, but the final version has not appeared.

In addition, President Obama promised to slim the federal government’s regulatory waistline and has issued specific executive orders in the process. Expediting the release of data, such as what appears in the Unified Agenda and the Costs and Benefits report, would give the public a glimpse of progress in this area. Having the figures and plans for 2012 would let us see if his executive orders and other efforts are working.

It’s not just the number of rules that matters. President Bush issued more rules during his first three years than Obama did, but Obama has issued more “economically significant” ones (those with estimated annual costs of at least $100 million), which the Unified Agenda helpfully highlights as a separate category.

Fortunately, the public has recourse in its elected representatives. Congress should demand that RISC release the updated spring edition of the Unified Agenda immediately, and stipulate that the fall edition is to appear by December (last year it was delayed until January). Congress also should insist that OMB release the overdue final version of its Costs and Benefits report and expedite the new draft containing rules for fiscal year 2012, which just ended September 30.

Accountability for regulations matters, and disclosure is a prerequisite. Transparency’s appeal transcends partisan and ideological boundaries. Bringing the federal government up to speed on providing crucial regulatory information to the American people is something on which President Obama and his Republican critics can agree. It may be election season, but that is one goal they both would do well to work toward.