December 12, 2012

Portman Urges President Obama To Release Long-Overdue Regulatory Plans

Portman: Federal Law Requires Obama Administration To Publish Its Missing Agenda Of New Regulations

Washington, D.C. – U.S. Senator Rob Portman (R-Ohio), former Director of the Office of Management and Budget (OMB), today sent a letter to the President asking why his Administration has failed to publish its Spring 2012 and Fall 2012 Regulatory Agendas identifying regulations under development, as required by law and executive order.
Portman first wrote President Obama on August 30 to inquire about the Administration’s unprecedented decision to skip the required publication of regulatory plans — during an election year.  He received no reply.  Today Portman wrote to note that the Spring Regulatory Agenda remains missing, and the Administration has now missed the deadline for the Fall Regulatory Agenda.
“President Obama promised the most transparent administration in history, but he has failed to comply with the basic duty to publish plans for new regulations, as required by federal law,” Portman said.  “The Administration first skipped the required Spring regulatory plans without any explanation and has also now missed the deadline for the Fall agenda.  This troubling pattern calls into question whether the Administration has abandoned this important tradition of openness in government.”
For nearly three decades, presidents of both parties have published a twice-annual “regulatory agenda” identifying all planned and expected regulations.  These spring and fall regulatory agendas are required by the Regulatory Flexibility Act and by Executive Order 12,866, issued by President Clinton and reaffirmed by President Obama last year.
But this year, the Obama Administration inexplicably failed to release the required Spring 2012 Regulatory Agenda and has now missed the deadline for the Fall 2012 plans.  Although the Obama Administration set a “firm deadline” to collect agency plans by April 13, eight months have passed and the plans have still not been made public.
On November 30, the American Bar Association’s Section on Administrative Law sent a letter to the White House calling the Administration’s failure to timely publish these regulatory plans “an unfortunate precedent.”
Senator Portman’s letter is available below.  A signed copy of the letter is available here.
December 12, 2012
President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Dear Mr. President:
For nearly three decades, presidents of both parties have published their plans for new regulations twice a year.  This practice is legal obligation grounded in a longstanding executive order and a federal statute that calls for a spring and fall regulatory agenda.[1] On August 30, 2012, I wrote to inquire why your Administration’s Spring 2012 Regulatory Agenda had not been made public.  I received no reply.  Now, with the spring plans still missing, the Fall 2012 Regulatory Agenda is also overdue.  In light of this apparent trend, I am writing to inquire whether your Administration has chosen to abandon this tradition of transparency altogether.
As their titles suggest, the Fall Regulatory Agenda and Spring Regulatory Agenda are published in the spring and fall — the former by April or May, the latter by October or November.[2]  Your Administration set April 13, 2012, as the “firm deadline” for agencies to submit their regulatory plans to the Office of Management and Budget.[3]  But eight months have passed, and neither the spring nor fall agendas have been made public.
As I noted in my last letter on this issue, the publication of planned regulatory actions that will affect American employers, workers, and consumers is a basic transparency measure.  The semiannual agenda helps the public and regulated parties better understand new rules under development, including their potential compliance costs and effect on small businesses.  As your Administration has recognized, the agenda is “a key component of the regulatory planning mechanism” established by Presidents Reagan and Clinton and reaffirmed by you in a January 2011 executive order.[4]  Portions of the agenda are also required by the Regulatory Flexibility Act[5] and the agenda fulfills the purposes of the Unfunded Mandates Reform Act.
In the interest of openness and transparency, I respectfully urge you to publish the long-overdue Spring 2012 Regulatory Agenda and the now missing Fall 2012 Regulatory Agenda, as past presidents have done and the law requires. 

[1] See Executive Order 12,866 (1993); Memorandum from Cass Sunstein, OIRA Administrator, to Executive Departments and Agencies, Spring 2012 Unified Agenda, Attachment, p. 3 (Mar. 12, 2012) (“All executive departments and establishments subject to Executive Order 12866 ‘Regulatory Planning and Review’ are required by section 4(b) to publish a regulatory agenda every 6 months.”); see also Executive Order 12,291 (1981) (“Each agency shall publish, in October and April of each year, an agenda of proposed regulations that the agency has issued or expects to issue, and currently effective rules that are under agency review pursuant to this Order.”).
[2] From 2007 through 2010, for example, each Spring Agenda was published in the Federal Register between April 26 and May 11.  Last year’s July 7 publication date was unusually late.  The Fall 2011 agenda, published in January 2012, was also unusually late.
[3] Sunstein, supra n. 1, at 10.
[4] Id. at 1; see also Executive Order 13,563 (2011).
[5] 5 U.S.C. § 602.