CategoryPublic Policy

Federal Register weekly update; 2019 page total approaching 65,000 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 November 18 to November 22, the Federal Register increased by 1,138 pages, bringing the year-to-date total to 64,702 pages. The week’s Federal Register featured a total of 548 documents, including 454 notices, four presidential documents, 31 proposed rules, and 59 final rules.
 
Two final rules were deemed significant under E.O. 12866—meaning that they could 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 2,158 pages for a year-to-date total of 60,332 pages. As of November 22, the 2019 total led the 2018 total by 4,370 pages.
 
The Trump administration has added an average of 1,377 pages to the Federal Register each week in 2019 as of November 22. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During 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.
 
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
 
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


Checking in on Trump’s 2-for-1 regulatory policy

President Donald Trump (R) in January 2017 issued Executive Order 13771, which requires federal agencies to eliminate two old regulations for each new regulation issued.
 
Have agencies complied with the 2-for-1 requirement?
 
E.O. 13771 only applies to economically significant regulatory actions—those with an economic impact of $100 million or more. In the 2017 fiscal year, the Office of Information and Regulatory Affairs (OIRA) reported that agencies issued 67 applicable deregulatory actions and three regulatory actions for a ratio of 22-to-1. For the 2018 fiscal year, OIRA reported that agencies issued 57 applicable deregulatory actions and 14 regulatory actions for a ratio of 4-to-1. OIRA’s data, therefore, demonstrate that agencies complied with E.O. 13771 in 2017 and 2018.
 
The recently released Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions sheds light on agencies’ compliance with E.O. 13771 in fiscal year 2019. Unlike previous editions, the Trump administration did not release an update on E.O. 13771 alongside the Unified Agenda. Instead, the administration is slated to release an update later this year. A preliminary analysis from the American Enterprise Institute, however, used data from the Spring and Fall 2019 Unified Agendas to predict that agencies issued 37 significant deregulatory actions and 28 significant regulatory actions in fiscal year 2019—shy of the 2-for-1 requirement.
 
Some analysts have argued that the administration has included non-significant regulations, guidance documents, and previously withdrawn rules to inflate its achievements under E.O. 13771. Others have observed that not all rules can be categorized as regulatory or deregulatory, which complicates overall accounting.
 


U.S. Supreme Court case asks whether courts may review certain Patent Trial and Appeal Board decisions

On December 9, the U.S. Supreme Court will hear oral argument in the case Thryv, Inc. v. Click-To-Call Technologies, LP. The case will determine whether people may challenge certain Patent Trial and Appeal Board (PTAB) decisions in court. A decision that restricts judicial review would make it harder for those who lose patent fights at the U.S. Patent and Trade Office to challenge those results in federal court.
 
The case arose when the PTAB allowed an inter partes review (IPR) of a patent. IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the PTAB as long as the challenge is filed within a statutory time limit.
 
Click-To-Call Technologies, LP (CTC) challenged the IPR, arguing that the time limit had expired. The PTAB rejected CTC’s challenge. Appeals courts wrestled with whether courts had jurisdiction to review the PTAB’s interpretation of the time limit. Now the U.S. Supreme Court will decide whether a statute restricting judicial review applies to the PTAB’s conclusion that the time limit to request IPR did not apply in this case.
 
To learn more about judicial review, see here:
 
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OIRA reviewed 42 significant regulatory actions in September 2019

In September 2019, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 42 significant regulatory actions issued by federal agencies. The agency approved three rules without changes and approved the intent of 35 rules while recommending changes to their content. Agencies withdrew two rules from the review process. Two other rules were improperly submitted by agencies.
 
OIRA reviewed 21 significant regulatory actions in September 2018—21 fewer rules than the 42 significant regulatory actions reviewed by the agency in September 2019. During the Obama administration from 2009-2016, OIRA reviewed an average of 45 significant regulatory actions each September.
 
OIRA has reviewed a total of 326 significant rules so far in 2019. The agency reviewed a total of 355 significant rules in 2018 and 237 significant rules in 2017.
 
As of October 1, 2019, OIRA’s website listed 129 regulatory actions under review.
 
OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.
 


U.S. Fish & Wildlife Service finalizes regulatory changes under Endangered Species Act

The U.S. Fish & Wildlife Service (FWS) issued three final rules on Monday affecting the implementation of the Endangered Species Act (ESA). The rules concern interagency cooperation, the classification of threatened and endangered species, the listing and removal of endangered species, and critical habitat designations, among other processes.
 
The first rule change aims to clarify the ESA’s interagency cooperation procedures between FWS, the U.S. Department of the Interior, the U.S. Department of Commerce, and the National Oceanic and Atmospheric Administration.
 
The second rule change eliminates automatic protections for threatened species that mirror those for endangered species. Instead, FWS will determine the level of protection for threatened species on a case-by-case basis.
 
The final rule change addresses the listing and removal of endangered species and critical habitat designations, among other process changes. The rule allows agency officials to consider economic factors in listing decisions and interpret the language “foreseeable future” under the ESA as a time period in which agency officials can reasonably determine likely threats to a species. The rule also puts forth changes to the critical habitat designation process, including a requirement that species must occupy critical habitats unless unoccupied areas are essential for species conservation. This change aims to address the United States Supreme Court’s November 2018 decision in _Weyerhaeuser Company v. United States Fish and Wildlife Service_, which held in part that an area must be a habitat before it can meet the narrower category of critical habitat.
 
The Trump administration argued that the rule changes reduce the regulatory burden on the public and increase transparency into agency decision making concerning species’ protections. Opponents of the rules claim that the changes reduce protections for endangered species and limit the consideration of potential future threats in agency decision making.
 
The attorneys general of California and Massachusetts announced their intention on Monday to sue the Trump administration over the rule changes.
 


Trump administration requests D.C. Circuit lift injunction blocking civil service executive orders

Trump administration officials asked the United States Court of Appeals for the District of Columbia Circuit to immediately lift the injunction blocking enforcement of President Trump’s (R) three civil service executive orders. Government attorneys argued that the injunction has created uncertainty and stalled collective bargaining negotiations between federal agencies and union groups.
 
A three-judge panel of the D.C. Circuit unanimously reversed and vacated a lower court decision that had blocked provisions of three civil service executive orders issued by President Trump (R). The judges held in their July 16 ruling that the lower court did not have jurisdiction and that the plaintiffs—a coalition of union groups—should have brought the case before the Federal Labor Relations Authority (FLRA) as required by the Federal Service Labor-Management Relations Statute (FSLMRS).
 
Plaintiffs have a 45-day grace period to request a rehearing in the case before the injunction is lifted. Tony Reardon, president of the National Treasury Employees Union, stated on July 24 stated that the plaintiffs plan to seek a rehearing before the full D.C. Circuit.
 


Council on Environmental Quality extends comment period for new greenhouse gas emissions guidance

On July 24, the White House Council on Environmental Quality (CEQ) gave the public more time to comment on new guidance related to how federal agencies should address greenhouse gas emissions. The guidance tells agencies to focus on the reasonably foreseeable environmental consequences of major actions. It also tells agencies that they do not have to weigh the monetary costs and benefits of proposed actions under the National Environmental Policy Act (NEPA).
 
The CEQ published the draft guidance in the Federal Register on June 26 and originally scheduled a month for public feedback. After a request to extend the comment period, CEQ published a notice moving the deadline to August 26, 2019.
 
The CEQ guidance will replace 2016 guidance about greenhouse gas emissions. The 2016 guidance was withdrawn following President Trump’s Executive Order 13783, which directed federal agencies to review all rules related to domestic energy development and to remove any that imposed significant economic costs.
 
The NEPA established the CEQ inside the Executive Office of the President to coordinate agency actions that affect environmental quality and to make sure agencies comply with NEPA requirements. The NEPA requires agencies to consider the environmental consequences of proposed actions and to tell the public about how the agency makes decisions.
 
Guidance is a term in administrative law used to describe documents created by administrative agencies to explain rules, laws, and procedures. Guidance documents affect how agencies administer regulations and programs. However, they are not supposed to be legally binding in the same way as rules issued through the rulemaking processes of the Administrative Procedure Act.
 


Federal Register weekly update; highest weekly number of significant regulatory actions since May

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 July 22 to July 26, the number of pages in the Federal Register increased by 1,452 pages, bringing the year-to-date total to 36,454 pages. The week’s Federal Register featured a total of 486 documents, including 367 notices, 10 presidential documents, 43 proposed rules, and 66 final rules.
 
Three proposed rules and one final rule 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 1,646 pages for a year-to-date total of 36,398 pages. As of July 26, the 2019 total led the 2018 total by 56 pages.
 
The Trump administration has added an average of 1,215 pages to the Federal Register each week in 2019 as of July 26. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During 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.
 
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
 
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


Idaho governor announces new regulatory processes, plans to simplify Idaho regulations

On July 25, Idaho Governor Brad Little announced four changes to the state rulemaking process:
  1. The state will post all notices and schedules for public hearings during the rulemaking process on one website.
  2. Citizens may now subscribe to a state newsletter informing them when new rules are published.
  3. Agencies will have to include a cover sheet with new rules explaining the purpose of the rule, who is covered by the rule, and who to contact for more information.
  4. Agencies will consolidate the chapters of rules they administer to make them easier for the public to understand.
In a July 19 announcement, Governor Little said he wanted to simplify up to 60 percent of the state’s regulations by the end of 2019. He added that he directed agencies to get rid of duplication and not to change fundamental policies. Little said that changing policy is the responsibility of the state legislature.
 
To learn more about Idaho’s regulatory code and other state approaches to the administrative state, click the link below.
 


Trump administration proposes rule easing cancellation of union dues

On July 3, the Office of Personnel Management (OPM) asked the Federal Labor Relations Authority (FLRA) to issue a rule change that would allow federal employees to resign from their unions and revoke dues payroll deductions at any time after the first year of membership.
 
What is the current policy? Section 7115(a) of the Federal Service Labor-Management Relations Statute states any “written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues” cannot be revoked for a period of one year. FLRA has construed this statute to mean that dues deductions can only be revoked at one-year intervals.
 
What is the proposed policy? OPM has asked FLRA to issue the following statement of policy:
  • “The constitutional principles clarified in Janus have general applicability to agencies and labor organizations in the area of federal employees’ requests to revoke union-dues assignments under Section 7115(a) of the Statute.”
  • “Consistent with Janus, upon receiving an employee’s request to revoke a previously authorized union-dues assignment, an agency should process the request as soon as administratively feasible, if at least one year has passed since the employee initially authorized union-dues assignment from the employee’s pay.”
What comes next? FLRA issued a request for comment on the proposed rule change in the July 12 edition of the Federal Register. Comments are due on or before Aug. 12, 2019.


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