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By Cheryl Bolen
June 4 — The Administrative Conference of the U.S. (ACUS) adopted a set of recommendations to promote greater accuracy and transparency in the Unified Agenda of Federal Regulatory and Deregulatory Actions, including one debated at length to publish a previously undisclosed category of “pending” regulations.
“The primary effect of having a pending category is that the number of entries in the unified agenda is now 650 fewer than it has been for the average of the previous 20 years,” said Curtis Copeland, a consultant to the project and former specialist in American government at the Congressional Research Service. “So it basically is a way to suppress the number of entries in the published agenda,” he said.
Emily Cain, a spokeswoman for the Office of Management and Budget, said that the unified agenda is a transparent accounting of rules that agencies may or may not pursue in the coming months.
“The ACUS sponsored report fundamentally misunderstands the pending category,” Cain said in an e-mail to Bloomberg BNA. “We have long been clear that agencies should make sure the long term actions they publish are worthy of putting in the agenda, because we believe it is counterproductive to repeatedly publish long term rules that may never move,” she said.
The unified agenda is the primary means by which agencies notify regulated parties and the public of upcoming regulatory actions, said ACUS Chairman Paul Verkuil, speaking at the 62nd plenary session of the conference.
The agenda is published twice a year and is managed by the Office of Information and Regulatory Affairs (OIRA), appearing online at Reginfo.gov. The spring agenda was published May 21.
For the most part, agencies do a good job of including rules in the unified agenda and ensuring that rules are properly characterized, Verkuil said. Still, there were a number of areas identified for improvement, he said.
For example, rules occasionally appear in the active category, which is reserved for rules that are supposed to be issued in the next 12 months, for years on end, Verkuil said. Sometimes, rules languish in the long-term category for years, even though the agency is no longer actively working on them, he said.
Copeland said the research indicated that, because the agenda is only published every six months, the agencies' agenda entries are often out-of-date or inaccurate. The agendas could make it appear, for example, that a rule is going to be published in the future when it has already been published, he said.
Also, many significant rules, particularly final rules, are published each year without prior notice in the agenda, and information about upcoming significant rules is sometimes incorrect, because information is often unavailable until late in the rulemaking process, he said.
A few agencies, such as the Environmental Protection Agency and the Department of Transportation, have established interim updated agenda information on their websites, at least for some of their most important rules, allowing the public to get more up-to-date information on regulatory actions.
Some of the senior agency employees interviewed for the report said some of the information for the unified agenda could be updated automatically, Copeland said.
Discussions with senior agency employees also revealed a new addition to the five standard categories of regulatory actions in the agenda—pre-rule, proposed rule, final rule, long-term actions and completed actions, Copeland said.
In 2011, OIRA and the Regulatory Information Service Center (RISC) within the General Services Administration created a “pending” category that has not been disclosed to the public and is not visible to the public in the published unified agenda or elsewhere, Copeland said.
The pending category reflects long-term regulatory actions that are not about to be issued, but that agencies do not want to remove from the agenda, Copeland said.
“Since the pending category was created in 2011, the average number of entries in the unified agenda has been more than 600 fewer than the average of previous years,” he said.
The “data call” or memorandum issued by OMB asking agencies for their regulatory actions states that, “In addition, agencies may identify rules or actions they would like to be considered as pending. A pending rule or action is one the agency does not plan to take action on in the coming calendar year,” but does not want to include as a long-term action in the agenda, it said.
The memo states that, for internal agency tracking and overall transparency, identifying a rule or action as pending allows the agency to preserve the existing RIN for that rulemaking so that the RIN is available to the agency in subsequent agenda publication cycles.
The unified agenda, according to Executive Order 12,866, is supposed to reflect all regulations under development or review, Copeland said. The long-term category is supposed to reflect actions under development, but not expected to be issued in the next year.
“The pending category is essentially long-term actions that are not disclosed to the public,” Copeland said.
“And so, the sense here is, is that if you have a secret, pending category that the public can't see,” he said, “it doesn't really reflect what the agenda is supposed to be about.”
Copeland said that the long-term and pending categories contain essentially the same rules.
The initial ACUS recommendation was to discourage agencies from putting any entries into the pending category. However, after significant debate and amendment, the conference did not recommend that the category be eliminated, but that it be published and that agencies should define the difference between actions in the long-term category and the pending category.
A number of entries in the agenda in a proposed or final rule stage have been there for years, some for more than 10 years, Copeland said. “In some cases, the public is repeatedly misled into believing that a proposed or final rule is going to be issued within the next 12 months, but then it isn't,” he said.
There are also many instances in which the agencies issued proposed and final rules without any notice in the unified agenda, Copeland said. While some instances are understandable, such as emergencies that require rapid action, it is not clear why other rules were issued without prior notice in the agenda, he said.
The long-term action category in the agenda is defined as regulatory actions that are under development, but that are not expected to occur within the next 12 months, Copeland said. The research indicated that a few agencies put almost all of their entries into the long-term action category, even though they issue hundreds of proposed and final rules each year, he said.
In some cases, regulatory actions appear in the unified agenda for one or more editions and then disappear, and the public has no idea whether the action is not going forward or will appear again in the future, Copeland said.
Some entries reflected rules that were being developed by two or more agencies; however, the entries for such actions were not always consistent. For example, one agency might describe the upcoming action as a major rule, while the other might describe it as not major.
Agencies indicated that, while the entries might not be consistent, they could be accurate depending on what portion of the rule that agency was developing, Copeland said. ACUS recommended that, for joint rules, agencies should be permitted to publish a single agenda entry.
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The ACUS report and recommendations are available at https://www.acus.gov/research-projects/promoting-accuracy-and-transparency-unified-agenda.
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