Whither the Regulatory Agenda(s)?

Sep 25, 2012

Those of us consigned to the unique purgatory of watching the regulatory process look forward twice a year to learning what any administration has in store for us in the coming months.  The administration is required under the Regulatory Flexibility Act, as well as their own Executive Orders, to publish in the Federal Register in April and October (or at least Spring and Fall) the Regulatory Agenda.  The agenda lays out the plans and expectations of all the federal agencies with respect to regulations on which they are working.  It is one of the more beneficial uses of the Federal Register, and in these times of heightened concern for transparency in government, one of the best ways to find out what’s happening.

So reg geeks like me have been annoyed and frustrated that the Obama administration has yet to produce the Spring 2012 Regulatory Agenda.  As we are now officially in Fall 2012, there is no use in pretending that the Spring agenda is merely late—it is clearly not showing up at all.  I’ve waited for enough phone calls that didn’t come to know when all hope is lost.  Similarly, I have no expectations that the Fall 2012 agenda will emerge.  And if it did without the Spring agenda, how would that look?

Bad enough that the administration is not forthcoming to the employer community that will actually have to live with any regulations, but those responsible for the administration’s regulatory program have also ignored inquiries from Congress.  Republicans on the House Education and Workforce Committee have sent two letters to the Office of Information and Regulatory Affairs requesting information and briefings, and received nothing but a polite brush off.

What then best explains this failure?   Two possibilities arise: 1)  The administration is not capable of fulfilling its most basic obligations in keeping interested parties informed. This explanation is consistent with the tardiness that characterized the release of agendas that actually got done: the Fall 2011 agenda—the last we have seen—was published in January 2012, well past anyone’s concept of Fall.  2) The administration is uncomfortable telegraphing their regulatory ambitions for a second term in the heat of a reelection campaign, where regulations are one of  the central themes, for fear these will not be welcome.

If there is a more benign explanation, I’m interested in hearing it.

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