With shutdown over, agency regulatory process soon to regain momentum

With the partial government shutdown over, for now, the regulatory and process for agencies will soon regain momentum, but the Federal Register won’t face an immediate flood of new items once the shutdown ends.

Bridget Dooling, a former deputy chief and senior policy analyst at the Office of Information and Regulatory Affairs, now a research professor at George Washington University’s Regulatory Studies Center, said there may be some lag to proposed rules appearing in the Federal Register.

“Sometimes there’s some back-and-forth needed between the Federal Register staff and the agency staff that they’re dealing with. I wouldn’t expect on day one after the government opens that you would see everything that’s been held up published on that same day,” Dooling said in an interview Thursday. “It will take some time to get all those documents into shape for publication.”

Agencies impacted by the shutdown, such as the Environmental Protection Agency and the Interior Department, stand out as major regulatory agencies.

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“The people who produce the analysis and provide the legal justification for these rules, they’re not there to process the public comments, think through and work with the Office of Management and Budget,” Cary Coglianese, the director of the University of Pennsylvania’s regulation program, said in an interview Friday.

However, the shutdown has had a greater effect on the Trump administration’s momentum removing old regulations than it has on new rules.

Of the more than 2,300 items in OIRA’s fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, there are more than 500 deregulatory actions, compared to 163 new regulations.

Within those deregulatory actions, 26 are considered “economically significant,” and would have an economic impact greater than $100 million.

“Each week of delay due to the partial shutdown puts these things on a slower track,” John Graham, a  former OIRA administrator under the George W. Bush administration, said Friday.

President Donald Trump in January 2017 signed his “two for one” executive order, requiring agencies to cut two old regulations to offset the costs of any new rule.

Dan Goldbeck, a senior regulatory policy analyst with the American Action Forum, said some of the rules in limbo range from an Agriculture Department rule on Supplemental Nutrition Assistance Program (SNAP) eligibility, to revisions of an Interior Department rule on drilling in the Arctic.

“It’ll be interesting to watch exactly how much the pipeline opens up again,” Goldbeck said in an interview Thursday. “I think part of the dearth of regulation you’re seeing now is because the agencies that are shut down are the most active in that sphere.”

Other regulations in limbo include Treasury Department tax regulations that stem from the Tax Cuts and Jobs Act that passed in December 2017.

“While they wouldn’t necessarily affect taxpayers this year, it, of course, sets up the rules that will affect them when they file next year,” Goldbeck said.

The Federal Register Act requires the National Archives and Records Administration to publish a volume every business day, even during the shutdown.

However, the Office of the Federal Register has operated under the shutdown with a skeletal crew, and can only print items from agencies that are “necessary to safeguard human life, protect property, or provide other emergency services.”

“It seems like they’re taking steps to try to get as much through as they can, given the circumstances,” Goldbeck said.

Despite the shutdown’s restrictions on rulemaking, OIRA on Jan. 17 approved the repeal of an Occupational Safety and Health Administration rule on workplace injury reporting.

Regulations.gov, the online portal where the public can submit comments to proposed agency rules, posted shifting explanations for a temporary outage on Jan. 17.

The website first stated it was “not operational due to a lapse in funding,” and would remain down for the remainder of the shutdown. Later in the day, the website displayed an error page stating that “work is currently underway to restore full services.”

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