CategoryPublic Policy

Federal Register weekly update; 2019 weekly page average continues to climb

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of April 15 to April 19, the number of pages in the Federal Register increased by 1,518 pages, bringing the year-to-date total to 16,600 pages. The Federal Register featured a total of 590 documents, including 487 notices, four presidential documents, 33 proposed rules, and 66 final rules.
 
One final rule and two proposed rules were deemed significant under E.O. 12866—meaning that they may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,432 pages. As of April 19, the 2019 total trailed the 2018 total by 1,014 pages.
 
The Trump administration has added an average of 1,038 pages to the Federal Register each week in 2019 as of April 19. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Idaho governor targets regulatory costs with two executive orders

Idaho Governor Brad Little signed two executive orders in January 2019 aimed at reducing state regulations on businesses and individuals in Idaho. He said that the orders would “help simplify Idaho state government and make it more accountable to citizens.”
 
The first executive order, the Licensing Freedom Act of 2019 (LFA), makes changes to the way Idaho implements and maintains occupational licenses. The LFA establishes a sunset rule that requires a regular gubernatorial review of every licensure requirement to determine whether those requirements still serve the public interest. The LFA also creates a list of sunrise factors that the governor and executive departments must consider with the legislature in order to impose new regulations on businesses, professions, or occupations.
 
The second executive order, called the Red Tape Reduction Act (RTRA), requires the state Division of Financial Management to submit annual reports detailing efforts to eliminate regulations and to streamline state government. In addition, the RTRA changes the procedures for proposing new rules through the 2021 fiscal year. First, state agencies must submit a statement identifying the impact that a new rule would have on individuals and small businesses. Second, agencies must name at least two existing rules to repeal or simplify or they must give reasons why existing rules cannot be simplified or removed. This requirement is similar to President Donald Trump’s Executive Order 13771, which requires federal agencies to eliminate two old regulations for every new regulation they issue.
 


U.S. Attorney General reverses 2005 decision, making some detained asylum seekers ineligible for release on bond

Attorney General William Barr overruled a 2005 decision by the Board of Immigration Appeals (BIA) that had allowed some aliens to post bond and leave detention after establishing a credible fear of persecution or torture. Barr’s decision, issued on April 16, 2019, held that the Immigration and Nationality Act (INA) and subsequent regulations required the Department of Homeland Security (DHS) to detain those individuals transferred from expedited to full proceedings unless the secretary of DHS grants temporary parole.
 
When aliens face expedited removal proceedings, DHS enforcement officers are in charge of removing them from the country and those individuals are usually kept in detention until removed. If a detained individual facing expedited removal makes a credible case that he or she will face persecution or torture if sent back to their country of origin, then they are transferred to receive full removal proceedings, which means an immigration judge will decide their case. Barr’s decision denied that aliens transferred from expedited to full proceedings were eligible for release on bond. He argued that the law gives the secretary of DHS the discretion to grant temporary parole for asylum seekers if there is an urgent humanitarian reason like a serious medical condition.
 
At the request of DHS, Barr agreed to delay the effective date of his decision for 90 days because the agency said his ruling would have an immediate, significant impact on detention operations. The case Barr overruled had made a large population of aliens eligible for release on bond. Under Barr’s ruling, this transferred group of asylum seekers will remain in detention while they wait for immigration judges to review their cases. It can take months or even years for immigration judges to decide a given case.
 
The BIA is a 21-member administrative body within the Executive Office for Immigration Review at the U.S. Department of Justice (DOJ). It is responsible for interpreting and applying immigration laws and hearing appeals in immigration cases decided by immigration judges and DHS officials, who are bound by the decisions of the BIA unless the U.S. attorney general or a federal court intervenes. An immigration judge is a kind of administrative judge who presides over special adjudication proceedings involving immigration, including removal decisions.
 
You can read Barr’s decision here: https://www.justice.gov/eoir/file/1154747/download
 


Ohio governor signs bill prohibiting abortion after fetal heartbeat is detected

Ohio Gov. Mike DeWine (R) signed a bill into law on April 11 which bans abortions after a doctor is able to detect a fetal heartbeat-usually at about six weeks into a pregnancy. The law includes exceptions if the life of the woman is at risk, but not in cases of incest or rape. It also mandates jail time and a $20,000 fine from the State Medical Board of Ohio for physicians who violate the law.
 
As of March 2019, a total of 43 states prohibited abortions beginning at specific stages of pregnancy. Of these 43 states, 17 prohibited abortions beginning at the stage of fetal viability, defined in _Roe v. Wade_ as the point at which a fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid.” Fourteen states prohibited abortions beginning at 20 weeks post-fertilization.
 


Federal Register weekly update; 2019 weekly page average tops 1,000 pages

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of April 8 to April 12, the number of pages in the Federal Register increased by 1,288 pages, bringing the year-to-date total to 15,082 pages. This week’s Federal Register featured a total of 551 documents, including 436 notices, four presidential documents, 45 proposed rules, and 66 final rules.
 
One final rule was deemed significant under E.O. 12866—meaning that it may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,164 pages. As of April 12, the 2019 total trailed the 2018 total by 1,100 pages.
 
The Trump administration has added an average of 1,005 pages to the Federal Register each week in 2019 as of April 12. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


New memo outlines White House review of independent agencies and guidance documents

The White House may soon exercise more oversight of independent agencies like the Federal Reserve Board and the Securities and Exchange Commission (SEC). An April 11 guidance memo published by the acting director of the Office of Management and Budget (OMB) establishes rules for compliance with the Congressional Review Act (CRA). It amends earlier OMB guidance for implementing the CRA published in 1999 to affirm that Office of Information and Regulatory Affairs (OIRA) review procedures apply to historically independent agencies. It also states that some guidance documents fall within the definition of rules subject to the CRA.
 
The CRA is a 1996 law that requires agencies to submit rules to Congress before they go into effect. The law allows Congress to pass a joint resolution of disapproval to block a rule. If the president signs the resolution, then the agency rule is void and the agency cannot make a similar rule in the future without explicit congressional authorization.
 
The guidance memo tells agencies not to publish any rules in the Federal Register or anywhere else until both OIRA determines whether the rule is major and the agency has complied with the CRA.
 
The CRA defines major rules as those that have or are likely to have the following features:
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, industries, government agencies, or geographic regions
  • Significant adverse effects on competition, employment, investment, productivity, innovation, or foreign trade competition
The memo affirms the broad scope of the CRA over administrative rules. Under Executive Order 12866, agencies have to submit any significant regulatory actions to OIRA for review. However, agencies do not submit all CRA-covered actions to OIRA. In addition to notice-and-comment rules, the new OMB memo says that agencies have to submit statements of policy and interpretive rules to OIRA and Congress. That includes guidance documents, which agencies often fail to submit for CRA review. The memo requires agencies to include a CRA compliance statement in the body of new rules, giving Congress notice that OIRA determined whether the rule was major.
 


Federal judge: Association health plan expansion challenged during Chevron two-step

A federal judge threw out a Trump administration rule designed to expand association health plans (AHP). The Department of Labor (DOL) rule allowed self-employed people to join associations that provided group health insurance plans like those offered by employers. United States District Court Judge John Bates’ 43-page opinion, issued on March 28th, said that the DOL rule used an unreasonable interpretation of federal law that he must set aside under the Administrative Procedure Act (APA) and the Chevron doctrine.
 
The Chevron doctrine is a two-step framework that compels federal judges to defer to agency interpretations of laws in some cases. When judges review agency interpretations of law under Chevron they must first determine whether the law was clear. If the law is ambiguous, then the judge will defer to the agency interpretation unless it is unreasonable. The APA requires judges to invalidate agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
 
In this case, Judge Bates held that the DOL rule was designed as an end-run around the Affordable Care Act (ACA) that ignored the language and purpose of both the ACA and the Employee Retirement Income Security Act of 1974 (ERISA).
 
Bates held that ERISA defined employer in an ambiguous way, but that the DOL rule’s definition was unreasonable. He wrote that the DOL rule failed at Chevron step two because its definition of employer stretched beyond the limits of ERISA in an unlawful way. He held that Congress did not intend for ERISA to regulate commercial healthcare insurance providers directly or to expand citizen access to healthcare benefits outside of employment relationships. He held that the DOL rule also contradicted the Affordable Care Act. He said Congress did not intend “that fifty-one distinct individuals employing no others could exempt themselves from the individual market’s requirements by loosely affiliating through a so-called ‘bona fide association’ without real employment ties.”
 


Arizona becomes the first state to recognize out-of-state occupational licenses

A new Arizona law directs state regulatory agencies to issue licenses or certifications for new residents who were already licensed in their previous state. The law allows people who move to Arizona to continue working in their career field without having to attend state-specific training. For example, licensed nurses in Texas would not have to go through a new process to become recertified as nurses in Arizona before moving and working in an Arizona hospital.
 
The law lists requirements for new residents seeking Arizona licenses to work in regulated fields. The law requires applicants to have a current certification in the same discipline in another state and have no record of disciplinary action or of the loss of a license in another state.
 
In his 2019 State of the State Address, Arizona Governor Doug Ducey argued in favor of the law saying, “100,000 people will move here this year. There’s a job available for every one of them. Lots of them are trained and certified in other states. Standing in their way of earning a living in Arizona, our own licensing boards, and their cronies […] And before those unelected boards feign outrage – let’s remember: workers don’t lose their skills simply because they move to Arizona.”
 
Opponents of the law, like the National Board of Certified Counselors, argued, “Although the intent is to make it easier to work in Arizona, such legislation potentially exposes the public to mental health providers who have not met the minimum qualifications to practice in the state.”
 


43 states prohibit abortion at specific stages of pregnancy

A total of 43 states prohibit abortions beginning at specific stages of pregnancy. This includes 17 states that prohibit abortions beginning at the stage of fetal viability and 15 states that prohibit abortions beginning at 20 weeks post-fertilization. Seven states do not prohibit abortions in any form.
 
Two abortion-related ballot measures passed in 2018: Alabama Amendment 2 and West Virginia Amendment 1.
 
Alabama Amendment 2 amended the state constitution, declaring that the state’s policy is to support “the sanctity of unborn life and the rights of unborn children, including the right to life.” This amendment was cited in a February 2019 wrongful death lawsuit. A county probate judge ruled that an Alabama resident could file a lawsuit on behalf of an unborn fetus given that a fetus was defined by the Alabama Constitution as a person with legal rights.
 
West Virginia Amendment 1 amended the state constitution to declare that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” This same language was also used in Alabama’s amendment.
 
Alabama Amendment 2 and West Virginia Amendment 1 were referred to the ballot by the state legislatures. Also in 2018, Oregon voters defeated a citizen initiative that would have prohibited public funds from being spent on abortions in Oregon, except when determined to be medically necessary or required by federal law.
 
The Alabama and West Virginia measures both followed language initially used in an approved 2014 measure: Tennessee Amendment 1. Two abortion-related measures with different proposed constitutional language were rejected in Colorado and North Dakota, respectively. The Colorado measure would have included unborn human beings under the definition of person and child in the Colorado criminal code. The North Dakota measure would have added language to the state constitution guaranteeing a right to life at every stage of human development.
 


Federal Register weekly update; highest weekly total of presidential documents in 2019

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of April 1 to April 5, the number of pages in the Federal Register increased by 1,748 pages, bringing the year-to-date total to 13,794 pages. This week’s Federal Register featured a total of 604 documents, including 452 notices, 12 presidential documents, 57 proposed rules, and 83 final rules.
 
One proposed rules, three final rules, and one notice were deemed significant under E.O. 12866—meaning that they may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,394 pages. As of April 5, the 2019 total trailed the 2018 total by 1,224 pages.
 
The Trump administration has added an average of 985 pages to the Federal Register each week in 2019 as of April 5. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


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