The Obama Administration released a Unified Agenda and Regulatory Plan overnight December 22, 2012, after being missing in action for months and finally skipping the Spring 2012 version altogether, not releasing any instructions for the development of the Fall 2012 Unified Agenda, and with no announcement of the 2012 Fall Unified Agenda whatever. OMB’s lack of transparency over an extended period reduces the value of this late, ersatz agenda, but practitioners must consider what little guidance the agency priorities provide.
Background: The end of the Mayan calendar and, with it, the end of the world, may have prompted Office of Management and Budget (OMB)’s Office of Information and Regulatory Affairs (OIRA) to finally release a unified agenda – or more likely was the fact that the government is closed for the next four days, until after Christmas. In any event, the Regulatory Flexibility Act (RFA) requires that “During the months of October and April of each year, each agency shall publish in the Federal Register a regulatory flexibility agenda ….” Executive Order 12,866 requires that Executive Branch agencies prepare annually a “Regulatory Plan” of their “most important significant regulatory actions,” which appears as part of the fall UA.
The UA, as a process, provides uniform reporting of data on regulatory and deregulatory activities under development throughout the Federal Government, covering approximately 60 departments, agencies, and commissions. OIRA oversees the UA process and reviews each agency’s UA entries and regulatory plan, a process designed at least to eliminate duplication of effort, but most agencies failed to meet the requirements of the RFA and OMB’s review process is opaque.
Release of an overdue Unified Agenda and Regulatory Plan on the Friday before Christmas (and POTUS gave Federal employees the day off on Monday, Christmas Eve) leaves open to speculation the timing of the release – four days without possible answers.
Management Issues: OMB and OIRA management of the UA and regulatory plan have come under substantial criticism this year from Congress and the public for a lack of (OMB’s much vaunted) transparency. OMB never released (as it has traditionally done) instructions to agencies for formulating the UA and regulatory plan, and never released a Spring 2012 UA. Only after criticism and meetings with Congress did the acting OIRA Administrator admit that there would be no Spring 2012 UA. This lapse and delay parallel other actions – including recently admitted delays in the formulation of the FY 2014 budget submission, which will not occur on the first Monday of February 2013. OMB – and the White House that controls it – clearly needs to understand that the public has a right to timely information and OMB is not providing the information that it is committed to providing.
Limitations: OMB caveats the UA’s guidance, although OMB claims that it attempts to provide real guidance on future regulatory planning:
The Agenda and Plan may include rules that are not issued in the following year and some that might never be issued. Indeed, at this point, executive agencies have finalized only 43 out of the 132 economically significant active rulemakings listed in the Fall 2011 agenda. Continuing last year’s practice, OMB took several steps to clarify the purposes and uses of the Agenda and Plan, including focusing the list of “active rulemakings” on rules that have at least some possibility of issuance over the next year. OMB also worked with agencies to make it easier to understand which rules are truly active rulemakings rather than long-term actions or completed actions.
Expectations and Highlights: Each Executive agency regulatory plan is accessible from the 2012 Agency Statements of Regulatory Priorities page. A number of expectations were met, including rules already known to be pending OMB review, and discussed in previous posts on this blog, such as the Department of Homeland Security (DHS) Transportation Security Administration (TSA) Passenger Screening Using Advanced Imaging Technology required by EPIC v. DHS.
Finding highlights in each agency’s plan require a parsing multiple documents with little indication of what is “new” or truly important. The Department of Health and Human Services (HHS) lists some 120 regulatory actions in its UA, but only regurgitates known information on such critical groups as the Food Safety Modernization Act (FSMA) regulations pending at OMB and provides no new information on implementation of the Patient Protection and Affordable Care Act (ACA). Admittedly, priorities change, but a UA and Regulatory Plan should provide guidance, not just a menu.
Many government employees labor at the UA and Regulatory Plan for weeks and months, those labors unappreciated. On the whole, however, OMB’s delay and opaqueness leave only more questions than answers. The UA and Regulatory Plan now mean little.