Federal Register Eases Publishing Guide for Government Shutdown

• Updated bulletin from Federal Register relaxes standard
• Rules stuck since government shutdown may now move

The Trump administration just made it easier to publish rules during the government shutdown, which could open a logjam that’s blocked federal regulations such as those addressing what credit monitoring agencies can charge consumers and the public release of an EPA power plant emissions standard.

Significant rules from across the government have been stuck since the partial shutdown closed the office that publishes the U.S. government’s official journal, which has been unfunded. Under previous guidance, the office could only publish emergency regulations, such as ones needed to safeguard human life or protect property.

An Office of the Federal Register bulletin updated Jan. 16 notified agencies they can bypass that high standard by certifying that delaying publication until the government reopens would prevent or significantly damage funded functions.

The office said it received new guidance on Jan. 11 from the Justice Department regarding what types of documents may publish during the appropriations lapse. Neither the Justice Department nor the Office of the Federal Register responded to requests for a copy of the guidance document.

The new standard appears to be based on a Dec. 13, 1995, opinion by the Office of Legal Counsel, which applies in the case of a partial government shutdown.

The opinion said agency operations needed for government functions that do have appropriated funding may continue during a partial shutdown if the funding lapse would “prevent or significantly damage the execution of those funded functions.”

Charles Mostoller/Bloomberg

Regulations addressing emissions from power plants like this coal-burning generator in North Carolina have been on hold during the government shutdown.

VA Rule

In response, a rule from the Department of Veterans Affairs that was cleared by the Office of Management and Budget on Dec. 21 is now set for publication in the Jan. 18 Federal Register.

The rule is needed to ensure that VA’s regulations dealing with claims and appeals comport with changes to relevant statutes enacted by the new Veterans Appeals Improvement and Modernization Act of 2017, the department said in a summary of the rule.

Likewise, a major proposed health care rule that cleared OMB on Jan. 16 and is already set to be published in the Jan. 24 Federal Register would set payment parameters and other provisions for federally facilitated and state-based health insurance exchanges in 2020.

There is concern that the Trump administration is interpreting the law and rules surrounding lapses in appropriations too broadly, such as calling back furloughed employees from the Internal Revenue Service to issue tax refunds.

“The standard that DOJ applies should set a high bar; whether the rule absolutely needs to go out during the shutdown or it would significantly damage the program,” said Sam Berger, a senior adviser at the Center for American Progress and a former senior counselor at OMB during the Obama administration.

“But given that the administration ignored this same standard in directing IRS to illegally make refund payments, people are right to doubt how strictly it will be applied,” Berger said.

Rules on Hold

Four rules finalized by the Consumer Financial Protection Bureau have been on hold since the partial shutdown began, all of which are set to become effective on their date of publication in the Federal Register. It is unclear whether the rules can be published under the new standard.

One rule, for example, would amend the regulation implementing the Fair Credit Reporting Act to establish a maximum allowable charge for disclosures by a credit reporting agency to a consumer. Another rule would set a new threshold, adjusted for inflation, for banks, savings associations, and credit unions to determine if they are exempt from collecting housing-related lending data in 2019.

Separately, the Environmental Protection Agency has proposed a rule, cleared on Dec. 21, that would revise an Obama-era standard for mercury and air toxins emitted by power plants. Litigation was put on hold, yet the public cannot read or comment on the EPA’s proposal until it is published in the Federal Register.

A list from the Department of Homeland Security must be published in Federal Register each year identifying the countries whose nationals are eligible to participate in the H-2A agricultural worker visa program and H-2B non-agricultural worker visa program for the coming year. That rule was cleared Jan. 14, but not published yet.

The Department of Health and Human Services issued a proposed rule that was cleared Dec. 26 to update retail pharmacy standards. The rule would allow for proper record keeping when less than the full amount of a prescription for controlled substances is distributed by the pharmacy, critical in light of the opioid crisis, it said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Paul Hendrie at phendrie@bgov.com