Agencies' Use of Unified Agenda Before Proposed Rules Varied

To determine the extent to which agencies used the Unified Agenda to notify the public about their upcoming proposed rules, CRS examined all published proposed rules that had been reviewed by OIRA during calendar year 2008. Viewed another way, however, for about one-quarter of the proposed rules, the agencies did not use the Unified Agenda to alert the public of those NPRMs before they were published in the Federal Register , and one-third of the time there were no "proposed rule" Agenda entries published before OIRA started its reviews. The NPRMs that were published with no prior "proposed rule" Unified Agenda entries included the following:
an August 2008 Department of Agriculture (USDA) rule on "Requirements for the Disposition of Cattle that Become Non-Ambulatory Disabled Following Ante-Mortem Inspection" a December 2008 Department of Commerce (DOC) rule on the "Steel Import Monitoring and Analysis System" a March 2008 Department of Defense (DOD) rule on the "Relationship Between the TRICARE Program and Employer-Sponsored Group Health Insurance" an April 2008 Department of Education (ED) rule on "Improving the Academic Achievement of the Disadvantaged" a January 2009 Department of Health and Human Services (HHS) rule on "Payments to Sponsors of Prescription Drug Plans" a March 2008 Department of Homeland Security (DHS) rule clarifying "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" an April 2008 Department of the Interior (DOI) rule on "Firearms in National Park Service Lands" an April 2008 Department of Justice (DOJ) rule on "Classification of Three Steroids as Schedule III Anabolic Steroids under the Controlled Substances Act" an August 2008 Department of Labor (DOL) rule on "Requirements for DOL Agencies' Assessment of Occupational Health Risks" a January 2008 DOT rule on "Passenger Car and Light Truck Corporate Average Fuel Economy, 2011-2015" an April 2008 Department of Veterans Affairs (VA) rule on "Grants for the Hiring and Retention of Nurses in the State Home Program" a November 2008 EPA rule on "Petroleum Refinery Residual Risk Standards" a December 2008 Office of Personnel Management (OPM) and DOD rule on the "National Security Personnel System" an August 2008 Social Security Administration (SSA) rule on "Authorization of Representative Fees" a January 2009 GSA rule on "Federal Supply Schedule Contracting"
 Table 1 also shows that the agencies differed in the extent to which they used the Unified Agenda to notify the public about upcoming proposed rules. Discussion

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 the 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 OIRA for review. However, in order for the public to participate prior to the publication of a proposed rule, or even to begin preparing comments during sometimes brief public comment periods, the public must first become aware that the proposed rule is about to be issued. Although a variety of methods could be used to accomplish this goal, including blogs and other forms of new "social media," the Unified Agenda—which has been published twice each year since 1983, and online since 1995—arguably provides agencies with the most systematic, government-wide method to alert the public about their upcoming proposed rules. About three-quarters of the significant proposed rules that were published after OIRA reviewed the rules in 2008 were preceded by a "proposed rule" Unified Agenda entry. Two-thirds of the rules had such entries even earlier, before the draft rules were submitted to OIRA for review under Executive Order 12866. However, should either Congress or the Obama Administration conclude that improvements are needed in the transparency of the rulemaking process, or in opportunities for the public to participate in that process prior to the publication of proposed rules, various policy options are available. Some of the available options have nothing to do with the Unified Agenda. One such option is to improve the visibility of the Unified Agenda to the public. To remedy this situation, either Congress or the President could require agencies to publish "proposed rule" entries in the Unified Agenda before submitting significant draft rules to OIRA, or to explain why such entries were not possible. In that system, agencies are not allowed to establish a rulemaking docket before an NPRM is published in the Federal Register .
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.