Timing of Unified Agenda release draws criticism from Issa

Monday - 12/31/2012, 2:22pm EST

Jerry Ellig, senior fellow, George Mason University's Mercatus Center,

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On Christmas Eve, The White House released the Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions, a compilation of agencies' plans for new regulations.

But the document has stirred controversy for a number of reasons, not least because it was published nine months late. Republican lawmakers have accused the Office of Information and Regulatory Affairs of trying to hide those plans from the public.

"The Administration broke the law by withholding this document due in April until the end of the year, and broke the President's promise to be transparent by releasing it at a time when they believed as few people as possible might see it," said Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, in a statement.

"The Unified Agenda is designed to give American job creators the opportunity to plan ahead for new regulations," Issa said. "The Committee remains gravely concerned about the opaque process and the Administration's determination to keep Congress and the American people in the dark."

Jerry Ellig, a senior research fellow at George Mason University's Mercatus Center, is one of those people who would normally read through the Unified Agenda and search its contents for significant passages. Like many, he was occupied with family matters over the holiday week and pleaded ignorance with the document's particular contents.

"I can't claim to have made a systematic study of it, but I think in any administration you can point to examples of where things were released on Friday afternoons or weekends or holidays or whatever," he said. "I study the effects of regulation and the regulatory process, so I'm not going to speculate on people's political motives. All I can tell you is what the effect of something like this is, which is to make the public less informed ... and, apparently, some members of Congress were disappointed too."

Jerry Ellig, GMU

Ellig told The Federal Drive with Tom Temin and Emily Kopp Dec. 28 the purpose of the Unified Agenda is to let Congress and the public know what kinds of actions agencies are considering.

"This is supposed to include regulatory actions but also any deregulatory actions," he said. "If an agency is maybe reviewing a regulation and is trying to figure out if it's still needed."

A window into an agency's thinking

In either case, the agenda is supposed to provide insight into the thinking at agencies so that Congress and the public have time to consider what feedback they may have for the agencies when it comes to regulatory decision-making.

In the federal rule-making process, most rules are typically issued through a notice and comment process, Ellig said, which allows the public time — 60 to 90 days — to comment on a proposed rule. The proposing agency then takes those comments and releases a final rule.

"As someone who has frequently commented on agency regulations and done studies on the effects of regulations, I can tell you that 60 or 90 days is not a lot of time for someone to understand the regulation, analyze what it does and then provide any kind of new information and data that might be of use to the federal agency that's issuing the regulation," Ellig said.

Depending on the nature of the proposed regulation, it could take a citizen months to gather the necessary information for an agency.

"There are some regulations that it really takes an expert to understand," Ellig said. "People may study the topic for a couple of years before they feel like they've fully understood the extent of all of the likely consequences. Even then, we miss some."

Ellig added that while some may seek to put a particular political spin on the agenda or the timing of its release, the important thing to focus on is what the regulations actually do and how that's spelled out in the agenda.

"For all regulations, the agencies are supposed to explain the legal authority for the regulation, list all the regulatory or deregulatory actions that they have underway and also for each one to include the name and phone number of a person who is knowledgable about the regulation, so that if a member of the public who's concerned wants to find out more, they know who to look for," he said.

Focus on the contents of the proposed actions

For most significant regulatory actions, the agency is also required to include a statement of need that explains the problem the regulation is seeking to address.

"The agency is also supposed to take a crack, at least, at mentioning the alternative possible solutions and possibly some preliminary benefits and costs of alternatives," Ellig said.

Members of the public should make sure that information is included in the agenda. They should also determine if any additional data or analysis needs to be added to the public record to help the agency make its decision.

Just because an agency proposes a regulation doesn't mean that it will automatically go into effect.

"Any regulation has to originate with an act of Congress, because, despite some of the political hyperbole, any regulation that is legal has to somehow be grounded in a law somewhere," Ellig said.

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