The Office of the Federal Register (OFR) issued guidance to administrative agencies on January 14, 2019, allowing for the publication of significant regulations during the government shutdown that, if otherwise delayed, would negatively impact funded government functions. Under the prior publication standard, the Federal Register could only publish emergency rules, such as those necessary to protect human life, provide emergency services, or safeguard property.
Significant regulations may have large impacts on the economy, environment, public health, or state or local governments. They may also conflict with regulations from other agencies or presidential priorities. The Office of Information and Regulatory Affairs (OIRA) must review all significant regulations prior to publication in the Federal Register.
OFR received the new publication standards through guidance from the U.S. Department of Justice on January 11. The standards are drawn from a 1995 ruling by the Office of Legal Counsel, which held that “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,’” according to Bloomberg Government.
Following the change, the U.S. Department of Veterans Affairs published a significant regulation in the Federal Register on January 18 concerning the department’s claims and appeals regulations. The U.S. Department of Health and Human Services also published a significant rule on January 24 concerning payment parameters for certain health insurance exchanges.