The Unified Agenda: Implications for Rulemaking Transparency and Participation

Summary

The Obama Administration has launched an initiative to make the policymaking process more open and transparent, and has asked for comments from the public on how the rulemaking process in particular can be improved in these respects. Some observers have concluded that the most critical part of that process occurs before a proposed rule is published in the Federal Register, and (for significant rules) possibly even earlier—before the rule is approved by the issuing agency and submitted to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget for review pursuant to Executive Order 12866. A representative of the Obama Administration has said that the public will be allowed to participate in the development of proposed rules. However, in order for the public to do so, or to allow more time to prepare comments during sometimes brief comment periods, the public must first know that the proposed rule is being developed.

The Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda), which has been published twice each year since 1983, arguably provides federal agencies with the most systematic, government-wide method to alert the public about their upcoming proposed rules. To determine how frequently agencies are using the Unified Agenda to perform this task, CRS examined all 231 significant proposed rules that were issued after having been reviewed by OIRA in 2008. About three-quarters of those rules were preceded by a “proposed rule” Unified Agenda entry (indicating that the agency was developing a proposed rule), and two-thirds of the rules had such entries even earlier, before the rules were submitted to OIRA for review. Viewed another way, however, there were no “proposed rule” Unified Agenda entries for about one-quarter of the proposed rules before they were published in the Federal Register, and there were no such entries before one-third of the rules were submitted to OIRA for review. Some agencies almost always used the Unified Agenda to notify the public about their upcoming proposed rules, while others did so less frequently.

If Congress or the Obama Administration conclude that improvements are needed in the transparency of the rulemaking process, or in the ability of the public to participate in that process prior to the publication of proposed rules, various policy options are available. Some of the options do not involve the Unified Agenda (e.g., greater use of public meetings, blogs, or making agencies’ internal rulemaking tracking systems available to the public). Also, or alternatively, either Congress or the Obama Administration could take one or more of the following actions: (1) improve the visibility of the Unified Agenda to the public; (2) require agencies to publish “proposed rule” entries in the Unified Agenda before submitting their significant draft rules to OIRA, or to explain why such entries were not possible; (3) increase the frequency with which the Unified Agenda is published; and (4) require agencies to establish a rulemaking docket where comments could be placed when the public is notified of an upcoming proposed rule.

This report will be updated to reflect changes in factual information or policy developments.