January 15, 2019
Government Shutdown – The Impact on the Regulatory Process
As we know, a large part of the federal government is now shut down with, seemingly no plan on how to reopen it. Approximately 800,000 federal workers are either furloughed or working without pay. This not only affects the government workers and the agency activities they were responsible for, such as operating our National Parks, TSA screening at airports, tax refunds, and SNAP payments, but it has also created havoc on the entire regulatory (or deregulatory) process for the federal government. Several major federal rulemaking efforts are on hold, and there is very little information about where things stand.
As of January 9, the official federal government website for tracking regulations (www.regulations.gov) showed only 2 new regulations posted in the seven days preceding, whereas there were over 500 new proposals listed in the last three weeks of 2018. If you visit the Federal Register website, you are greeted with a notice that says that the site is not supported by the Government Printing Office, which is also shut down. You can find some information on the www.govinfo.gov website, and there have been at least daily online publications of the Federal Register, but the content is significantly reduced. In the first nine days of 2019, only about 133 pages were published and much of that either from agencies not affected by the shutdown or presidential declarations and announcements. To put this into context, for all of 2018, the FR published over 68,000 pages of regulations and other governmental notices.
An example of a major rulemaking that is now in limbo is the effort by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to rewrite the rules on how the agencies define and thereby regulate the Waters of the United States (WOTUS). On December 11, after months of internal effort, EPA and USACE came forward with much anticipated revisions to the rules as to what areas would be subject to regulation under the Clean Water Act and specifically the Section 404 wetlands permitting program administered by USACE. When the rules were announced, the agencies indicated there would be a 60-day comment period that would begin when the rule was published in the Federal Register. On December 28, they published a notice of a public hearing on the new rule but were not able to publish the proposed rule before the government shutdown. Consequently, there is no formal rulemaking yet pending, no comment period, no public hearing, and no due date for submitting comments. There is not even any information on this particular rulemaking on the official government website that lists all pending regulations (www.regulations.gov).
Another aspect of the rulemaking process now on hold is the role of the Office of Information and Regulator Analysis (OIRA) at OMB which reviews all pending rulemakings and is often the last stop for those seeking to influence the outcome of the regulatory process. With the shutdown, many of the people at OMB who would typically be involved in reviewing regulations are not at their desks. They play a critical role to ensure compliance with federal management policies. These are often the key White House people with whom industry and advocacy community would be seeking meetings as a last resort.
What this means is that all regulatory proposals that were pending but not final when the shutdown took affect may need to be extended even if the comment period closed after the shutdown. Other proposed regulations which were never formally published in the FR, like the WOTUS rule, may be significantly delayed until well after the shutdown. Here is a partial list of some of the significant rulemakings that were pending when the shutdown started. This does not include rules that did not make it into the FR before the start of the shutdown: