Amid every Presidential campaign, some regulatory actions become the grist of the political mill, while others are laid to rest peacefully. The regulatory process – as a process – transcends the politics and some institutional “continuity of operations / continuity of government” steps need to be taken. So far, however, the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) seems to be missing in action on two important aspects of the regulatory planning: the Spring 2012 Unified Agenda (and it is now approaching Fall) and instructions on managing regulations during a potential Presidential transition.
The Obvious: There will be a United States Government on January 21, 2013, no matter who is sworn in as President on January 20, 2013. Continuity of operations / continuity of government planning recognizes this indelible fact. OMB may be missing this point.
Unified Agenda: Every Spring and Fall, the Administration issues a Unified Agenda of Regulatory and Deregulatory Actions; in the Fall edition, the Administration issues a Regulatory Plan. As OMB describes it:
The Unified Agenda and Regulatory Plan provide uniform reporting of data on regulatory and deregulatory actions under development throughout the Federal government, covering over 60 departments, agencies, and commissions.
Timely information is critical to transparent government operations and the Fall 2011 Unified Agenda and Regulatory Plan were not published until January 20, 2012 – winter. The Spring “agenda call” was not send out by OMB until March 12, 2012 – with an agency deadline for response of April 13, 2012. We are now approaching the Fall of 2012 and OMB has yet to release the Spring 2012 Unified Agenda.
As of today, OMB has not released the Spring Unified Agenda and it is more overdue than any previous agenda. At this pace, this Administration will not issue a Fall Unified Agenda and Regulatory Plan.
Transition Planning: Another important regulatory process in any election year is the contingency planning for a possible Presidential transition. Every Administration denies the possibility that its end is coming after a first term, but appropriate contingency planning is critical to the continuity of government operations. At the same time, each Presidential transition planning effort improved, in at least some senses, on the previous transition.
Word has it that the Administration slowed down “non-critical” rules early in the year – e.g. rules that do not have statutory or judicial deadlines. Transparency, a major point made by this Administration, requires substantially more – transparency requires a public understanding of the transition planning. Sunstein’s effort to reduce the number of entries in the Unified Agenda or to improve regulatory analysis and test information gathering tools do not qualify. Politico at least has noticed an Obama Administration “slow walk.”
The Administrative Conference of the United States (ACUS) recently recommended steps to avoid the actuality and perception of “midnight rules” – pejoratively, rules adopted in haste in the last days of an Administration to hamstring its successor.
- Incumbent administrations should manage each step of the rulemaking process throughout their terms in a way that avoids an actual or perceived rush of the final stages of the process.
- Incumbent administrations should encourage agencies to put significant rulemaking proposals out for public comment well before the date of the upcoming presidential election and to complete rulemakings before the election whenever possible.
- When incumbent administrations issue a significant “midnight” rule—meaning one issued by an outgoing administration after the Presidential election—they should explain the timing of the rule in the preamble of the final rule (and, if feasible, in the preamble of the proposed rule). The outgoing administration should also consider selecting an effective date that falls 90 days or more into the new administration so as to ensure that the new administration has an opportunity to review the final action and, if desired, withdraw it after notice and comment, before the effective date.
- Incumbent administrations should refrain from issuing midnight rules that address internal government operations, such as consultation requirements and funding restrictions, unless there is a pressing need to act before the transition. While incumbent administrations can suggest such changes to the incoming administration, it is more appropriate to leave the final decision to those who would operate under the new requirements or restrictions.
- Incumbent administrations should continue the practice of sharing appropriate information about pending rulemaking actions and new regulatory initiatives with incoming administrations.
Few Administration instructions have achieved the degree of functional direction and transparency as the Bush Administration’s May 8, 2008, memorandum on the regulatory closing of its second term:
Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.
The Administration’s “end game” has not been transparent, however, and the Obama White House could learn from its predecessor.
OMB: As the Administration’s “sharp end of the spear” on regulatory process, OMB has thus far provided no such guidance. OMB’s lack of transparency and failure to provide a future agenda or continuity guidance is disappointing.