The Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda) is compiled and published twice each year by the Regulatory Information Service Center (RISC) within the General Services Administration (GSA), and provides the public with information about regulations that federal agencies are considering or reviewing. The Obama Administration has launched an initiative to make the policymaking process more transparent, participatory, and collaborative, and has specifically requested suggestions from the public regarding the rulemaking process. With entries designed to alert the public about upcoming proposed rules and commenting opportunities, the Unified Agenda appears uniquely suited to the Administration's effort. However, it is unclear how well the Unified Agenda currently performs this task—i.e., how often agencies' proposed rules are preceded by "proposed rule" entries in the Agenda (indicating that agencies are preparing a proposed rule). This report examines that issue and discusses options that Congress or the President can use to improve transparency and participation via the Unified Agenda or other means. First, however, the report discusses the Obama Administration's open government initiative, the rulemaking process, and the potential value of comments prior to the publication of a proposed rule. On January 21, 2009, his first full day in office, President Barack Obama issued a memorandum to the heads of executive departments and agencies in which he directed the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB) and the Administrator of GSA, to coordinate recommendations for an "Open Government Directive." The memorandum said that the directive (which is to be issued by the Director of OMB) would require agencies to take specific actions to make the federal government more transparent, participatory, and collaborative. For example, with regard to transparency, the memorandum said that the agencies should "harness new technologies to put information about their operations and decisions online and readily available to the public." It also said that agencies should "offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information," and "should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation." On May 21, 2009, the Director of the Office of Science and Technology Policy within the Executive Office of the President published a notice in the Federal Register inviting the public to offer comments and suggestions about how to increase openness and transparency in government. The notice said that, with "twenty-first century tools," the federal government can take advantage of information that is currently dispersed among the nation's citizens to improve the policy process, and said "Our goal is to use the principles of open government to obtain fresh ideas about open government itself." One area in which comments were specifically requested was rulemaking—the process by which federal agencies develop and promulgate regulations. Federal regulations implement statutes and establish specific requirements. One observer described rulemaking as "the single most important function performed by agencies of government," noting that it is "to rules, not statutes or other containers of the law, that we turn most often for an understanding of what is expected of us and what we can expect from government." Federal agencies issue 3,000 to 4,000 final rules each year on topics ranging from the timing of bridge openings to the permissible levels of arsenic and other contaminants in drinking water. The rulemaking process is governed by the Administrative Procedure Act (APA, 5 U.S.C. §551 et seq. ) and numerous other statutes and executive orders. Figure 1 below shows the process that most federal agencies are generally required to follow in developing or revising significant regulations. In brief, an agency develops a draft proposed rule based on congressional requirements or authority and, after review and approval within the agency, sends the draft rule to the Office of Information and Regulatory Affairs (OIRA) within OMB for review under Executive Order 12866. After OIRA review, the agency publishes a notice of proposed rulemaking (NPRM) in the Federal Register , obtains comments on the proposed rule, and responds to those comments in developing a draft final rule. The draft final rule is then reviewed in sequence by the agency and OIRA, and the final rule is published in the Federal Register . The APA generally requires that final rules take effect no less than 30 days after publication. The rulemaking process varies somewhat depending on the agency issuing the rule, its significance, and whether the rule must be issued quickly. For example, agencies sometimes issue final rules without a prior NPRM, and OIRA only reviews regulatory actions that are "significant" and from agencies other than independent regulatory agencies. In a 2006 congressional hearing commemorating the 60 th anniversary of the APA, Professor William F. West of Texas A&M University's George Bush School of Government and Public Service said that the part of the rulemaking process that precedes the publication of the NPRM frequently lasts for several years, and "is where the most critical decisions often occur." Similarly, a 2009 report by the Government Accountability Office (GAO) noted that "much of the resource investment in a rulemaking occurs prior to the publication of the proposed rule." GAO said that the rulemaking process officially commences no later than when a Regulation Identifier Number (RIN) is assigned (i.e., when the agency is either preparing its first Unified Agenda entry for a rule, or when it is preparing its submission to OIRA for review). GAO also said that during an "initiation" phase, agencies gather information to determine whether to issue a rule, identify needed resources, and may draft concept documents for agency management. During the development of proposed rules, agencies draft the rule and the preamble (which describes why the rule is being developed), and begin to address analytical and procedural requirements. GAO reported that for 10 of 12 rules that had been developed by the Department of Transportation (DOT), the Environmental Protection Agency (EPA), and the Food and Drug Administration (FDA), the agencies took at least two years to issue an NPRM. Two of the FDA rules that GAO examined were under development for at least six years before they were published as proposed rules, and four EPA rules each took more than three years. Although federal agencies sometimes make significant changes to their proposed rules as a result of public comments, some observers have concluded that such changes become less likely after the draft proposed rules have been reviewed and approved within the agencies and OIRA, and after they have been published for comment in the Federal Register . A December 2006 report prepared for CRS by the East West Research Group at Texas A&M University concluded that the changes to proposed rules in response to comments from the public "do not tend to be of a fundamental nature for at least two reasons." Perhaps the more obvious has to do with the sunk costs in organizational resources and psychological commitments. In addition, agencies may feel compelled to invite a second round of public comment on important changes in the interest of due process. This can be an unattractive option, especially given that rulemaking is already often a protracted process and given that agencies are often under pressure from Congress or the courts to issue rules in a timely fashion. One might add that the difficulty of changing proposals also increases the incentive to develop proposals that will not need to be changed, thus reinforcing sunk costs in proposal development. Given the number of important decisions that are made while proposed rules are under development at the agencies, and the understandable reluctance of agencies to make fundamental changes to those rules after the NPRMs are published, comments and suggestions from the public may arguably be most effective while proposed rules are still under development at the agencies. The importance and potential efficacy of pre-NPRM consultation with the public underlies current statutory requirements for advance notices of proposed rulemaking (ANPRMs), negotiated rulemaking, and advocacy review panels at the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA). Agencies also sometimes hold public hearings in advance of the publication of a proposed rule, occasionally as a result of congressional requirements. The value of early involvement in the rule-development process also underlies efforts by OIRA to review certain rules before they are formally submitted pursuant to Executive Order 12866. John Graham, OIRA Administrator during most of the George W. Bush Administration, said that once a regulatory proposal is formally submitted to OMB, there is already powerful organizational momentum behind the proposal. Not only have agency staff devoted potentially years of work to data collection and analysis; policy officials at agencies may have managed delicate relationships among stakeholders. At this stage, any changes suggested during OMB review are destined to make waves and bruise egos, which means that they will be resisted, sometimes fiercely and effectively. Similarly, Sally Katzen, OIRA Administrator during most of the Clinton Administration, said that by the time an agency issues an NPRM, "the agency is invested. By that time, the agency has its own strongly held view of how it wants this thing to look. And OMB changes at that point are, I think, really at the margin rather than going to the heart of the matter." Both former administrators have said that OIRA often has its most significant effect on draft rules before they are formally submitted to OIRA for review. Pre-NPRM public participation in rulemaking has also been advocated as part of the Obama Administration's transparency and open government initiative. At a June 2009 conference sponsored by the American Bar Association, Beth Noveck, the White House's deputy chief technology officer, said that the Obama Administration planned to use blogs and other "social media" to generate public input regarding agencies' proposed rules, even before they are drafted. Ms. Noveck was quoted as saying that "Instead of starting with a finished draft of a rule, we're co-creating from the get-go and asking people what should be in such a rule before we write it."