CategoryPublic Policy

Federal Register weekly update; lowest weekly document total since January

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 May 27 to May 31, the number of pages in the Federal Register increased by 1,130 pages, bringing the year-to-date total to 25,492 pages. This week’s Federal Register featured a total of 432 documents, including 347 notices, four presidential documents, 40 proposed rules, and 41 final rules.
 
One proposed rule was deemed significant under E.O. 12866—meaning that it may have a large impact 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 1,148 pages. As of May 31, the 2019 total trailed the 2018 total by 52 pages.
 
The Trump administration has added an average of 1,159 pages to the Federal Register each week in 2019 as of May 31. 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


Texas plumbing code and oversight board set to expire

The Texas Board of Plumbing Examiners and the state’s plumbing regulations will cease to exist after the Texas State Legislature on Sunday failed to approve associated sunset review legislation. The state’s plumbing code will expire on September 1, 2019, and the board will wind down operations by September 2020.
 
The sunset bill—a type of legislation that establishes a date on which an agency or law will expire without specific legislative action—proposed to move the responsibilities of the plumbing board under the Texas Department of Licensing and Regulation. Lawmakers in support of the bill argued that the move would improve efficiency, such as reducing the state’s eight-month processing period for issuing a plumbing license. Opponents claimed that the lengthy licensing period and other alleged inefficiencies functioned to protect public health and safety in a specialized industry.
 
Some plumbers in Texas have asked Texas Governor Greg Abbott (R) to call a special legislative session to address plumbing oversight. Abbott had not responded to requests for comment on the issue as of May 29. In the absence of a state plumbing code, municipal plumbing codes will govern plumbing oversight at the local level.
 


Iowa Supreme Court upholds changes to public-sector collective bargaining rights

In two separate rulings issued on May 17, 2019, the Iowa Supreme Court upheld a 2017 law that amended collective bargaining rights for the state’s public-sector workforce. The court ruled 4-3 in the state’s favor in both cases.
 
What was at issue? In 2017, then-Gov. Terry Branstad (R) signed into law a series of amendments to Iowa’s public-sector labor relations law. As a result, collective bargaining units with less than 30 percent public-safety personnel (defined generally as firefighters and police officers) cannot negotiate insurance, hours, vacations, holidays, overtime, and health and safety issues unless their employers elect to do so. Collective bargaining units exceeding the 30-percent threshold are exempted from these restrictions.
 
Who were the parties to the suits? The plaintiffs, the American Federation of State, County, and Municipal Employees Council 61 (AFSCME Council 61) and the Iowa State Education Association (ISEA), argued the amendments violated their equal protection and associational rights under the state constitution. The defendants were the state of Iowa and the Iowa Public Employment Relations Board. Both cases were filed in state district courts, which ruled against the plaintiffs. The plaintiffs appealed these decisions to the state supreme court.
 
How did the court rule? In each case, the court ruled 4-3 in the state’s favor. In the majority opinion covering both cases, Justice Thomas Waterman wrote: “The 2017 amendments do not infringe on a fundamental right of association. The plaintiffs ‘come to use with a problem suitable only for political solution.’ The plaintiffs are free to attempt to persuade public employers, such as the State and local governments and school boards, to voluntarily bargain over formerly mandatory terms. The plaintiffs otherwise must look to the ballot box and the elected branches to change this lawfully enacted statute.” Justices Susan Christensen, Edward Mansfield, and Christopher McDonald joined Waterman’s opinion.
 
Chief Justice Mark Cady and Justices Brent Appel and David Wiggins dissented. In his dissent, Cady wrote: “[The] Iowa statute ends up treating many similarly situated public employees in Iowa differently based solely on the bargaining unit they belong to and not for the reason the constitution would justify different treatment of public employees. Our constitution requires laws to treat similarly situated people equally unless there is an adequate reason otherwise. In this case, the overinclusiveness and underinclusiveness written into the statute drowned this reason out.”
 
What are the responses? Senate Majority Leader Jack Whitver (R) supported the ruling: “Since its implementation, I have heard story after story of school districts and local governments implementing creative solutions to improve the education of Iowa’s students and the provision of services Iowans need. This reform is about returning power to locally elected officials and giving them the ability to pay more to great teachers and employees, fire the occasional bad actor and protect Iowa taxpayers.”
 
Senate Minority Leader Janet Petersen (D) opposed the ruling: ” By taking away the rights of teachers, firefighters, nurses, correctional officers and other public servants, Republican politicians have done harm to all Iowa workers. Working Iowa men and women are the real victims of the assault by the Branstad/Reynolds administration and Republican-controlled Legislature.”
 
The case names and numbers are AFSCME Council 61 v. Iowa (No. 17–1841) and Iowa State Education Association v. Iowa (No. 17-1834).
 


Cost-benefit analysis overhaul at EPA in response to Trump executive order

Offices of the Environmental Protection Agency (EPA) are formulating rules to clarify how they weigh the costs and benefits of potential regulations. These rules follow a May 13, 2019, memo from EPA Administrator Andrew Wheeler saying that cost-benefit analyses have varied across the agency in the past and that new rules will promote more transparent and consistent processes.
 
Wheeler’s memo says that the EPA is standardizing its cost-benefit analysis practices in response to President Trump’s Executive Order 13777, which directed agencies to find regulations that impose higher costs than benefits. The memo lists the following guidelines for the new cost-benefit analysis rules:
 
• The EPA should measure and consider costs and benefits when making decisions
 
• The EPA should have consistent interpretations of terms like “practical,” “appropriate,” “reasonable,” and “feasible”
 
• The EPA should explain which factors go into regulatory analyses and how they are used to shape the outcome of regulations
 
• The EPA analyses should follow best practices and sound economic and scientific principles
 


Federal government follows through on threat to cancel $1 billion California high-speed rail grant; state files lawsuit in response

The U.S. Department of Transportation (DOT) on May 16 canceled nearly $1 billion in high-speed rail grants issued to the California High Speed Rail Authority. The federal government canceled the grants in response to the state’s failure to comply with the terms of the original 2010 agreement and failure to make reasonable progress on the project, according to the notice.
 
DOT had notified California rail officials in February that it intended to cancel $929 million in grants for construction of the high-speed rail system between Los Angeles and San Francisco. DOT officials also announced that they were “actively exploring every legal option” to recoup $2.5 billion that was previously granted to the project for allegedly violating terms of funding.
 
The California High Speed Rail Authority filed a federal lawsuit challenging the DOT decision on May 21.
 
Read more about this story in the March edition of The Checks and Balances Letter, the monthly newsletter from Ballotpedia’s Administrative State Project.
 


U.S. Supreme Court declines to hear challenge to Chevron deference in UPS case

A fight between UPS and Amazon over how a federal agency determines shipping costs will not proceed to the U.S. Supreme Court. On May 20, 2019, the U.S. Supreme Court declined to hear a case that challenged giving Chevron deference to the way the Postal Regulatory Commission (PRC) sets package delivery prices. UPS argued that the D.C. Circuit made a mistake in its May 22, 2018, opinion applying the Chevron doctrine to uphold the formula used by the PRC to set postal rates for deliveries of packages.
 
 
The Chevron doctrine is an administrative law principle that compels federal courts to defer to a federal agency’s interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The principle derives its name from the 1984 U.S. Supreme Court case Chevron v. Natural Resources Defense Council.
 
In its 267-page petition, UPS asked the U.S. Supreme Court to reconsider the Chevron doctrine in light of the following criticisms:
  • “It threatens the proper separation of powers by shifting legislative and judicial responsibilities to executive agencies”
  • “There is no legal basis for the assumption that Congress implicitly delegates interpretive authority to agencies”
  • “Chevron (with its attendant limitations) is enormously difficult to apply in practice.”
  • “Several Justices have recognized that this powerful criticism warrants a reconsideration of Chevron by the Court.”
In its 2018 ruling, the D.C. Circuit held that the PRC formula was based on a permissible interpretation of an unclear part of the 2006 Postal Accountability and Enhancement Act (Accountability Act). The court said that the agency interpretation was consistent with longstanding practice stretching back to 1975. Under Chevron, courts defer to reasonable agency interpretations of ambiguous laws.
 
 
Additional reading:
 
Text of UPS’ petition for a writ of certiorari:
 
Text of the D.C. Circuit Decision:


Colorado becomes the fifth state to enact net neutrality legislation

On May 17, Colorado Gov. Jared Polis (D) signed SB19-078 into law, which prohibits internet service providers from throttling or blocking otherwise legal content, services, and apps, and from establishing internet fast lanes. Providers violating the law would be required to repay the state for any funding received for rural broadband initiatives.
 
Colorado is the fifth state to establish net neutrality rules, after California, Oregon, Vermont, and Washington. Implementation of California’s law is on hold pending the outcome of a lawsuit brought against the Federal Communications Commission [FCC] in federal court.
 
These laws follow the FCC’s 2018 repeal of its 2015 Open Internet Order, issued during the Obama administration, which declared internet service providers a public utility to be regulated like gas, water, electric, and phone service companies. The U.S. Senate voted 52-47 to reverse the 2018 ruling on May 16, 2018, but the issue was not taken up in the U.S. House.
 
Other states have implemented rules related to net neutrality via executive order. Governors in six states—Hawaii, Montana, New Jersey, New York, Rhode Island, and Vermont—signed executive orders in 2018 requiring state agencies to only contract work with providers that adhere to net neutrality.
 


U.S. Senators Lankford (R-Okla.) and Sinema (D-Ariz.) propose giving the public early access to the rulemaking process

A proposed bill would require agencies to request written feedback from interested people regarding new major rules earlier in the regulatory process. Senators James Lankford (R-Okla.) and Kyrsten Sinema (D-Ariz.) introduced Senate Bill 1419, the Early Participation in Regulations Act, on May 13, 2019. The act requires agencies to issue advance notices that they will be proposing a rule at least 90 days before the agency publishes the proposed rule in the Federal Register.
 
The act states that advance notices have to provide time for interested people to submit their views to the agency in writing and have to include the following:
  • The nature of the problem the agency plans to address with a new major rule
  • The data the agency expects to use to formulate the rule
  • A description of the regulatory alternatives the agency is considering
  • The legal authority under which the major rule may be proposed
  • An achievable objective for the major rule
S. 1419 follows other federal standards and defines major rules as those that have or are likely to have the following results:
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
  • Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets
Rules that do not require published notices of proposed rulemaking (NPRM) in the Federal Register are not subject to the act. Those exempted rules include guidance documents, which are interpretive rules, policy statements, and agency rules of organization. Beyond guidance, agencies can choose not to publish NPRMs for new rules if they find good cause and explain their reasoning in the rule they issue. Finally, if the administrator of the Office of Information and Regulatory Affairs (OIRA) determines that compliance would not serve the public interest or would be too burdensome and redundant based on the requirements of other laws, then the agency does not have to publish an advance notice of proposed rulemaking (ANPRM) under the act. OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies.
 
 
Additional reading:
 
Text of S.1419 (The Early Participation in Regulations Act):
 
 


U.S. Senators Sinema (D-Ariz.) and Lankford (R-Okla.) propose requiring agencies to perform retrospective reviews of regulations

A new bill aims to help administrative agencies meet regulatory goals by requiring them to assess the effectiveness of new major rules. Senate Bill 1420, The SMART Act of 2019, would require agencies to publish ideas about how to measure the anticipated benefits of new major rules, including how to collect the necessary data to conduct such a review. Senators Kyrsten Sinema (D-Ariz.) and James Lankford (R-Okla.) introduced the bill on May 13, 2019.
 
The act instructs agencies to perform cost-benefit reviews of major rules to determine whether they are accomplishing their objectives, are no longer necessary, or need to be improved. It follows other federal standards and defines major rules as those that have or are likely to have the following results:
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
  • Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets
The provisions of the SMART act apply to rules that meet those criteria as determined by the administrator of the Office of Information and Regulatory Affairs (OIRA). OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies. The act exempts guidance documents, which include interpretive rules, policy statements, and agency rules of organization, from its review requirements.
 


Federal Register weekly update; 2019 page total trails 2018 total by less than 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 May 13 to May 17, the number of pages in the Federal Register increased by 1,928 pages, bringing the year-to-date total to 22,692 pages. This week’s Federal Register featured a total of 612 documents, including 494 notices, 11 presidential documents, 52 proposed rules, and 55 final rules.
 
Three proposed rules and one final rule were deemed significant under E.O. 12866—meaning that they may have a large impact 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 1,172 pages. As of May 17, the 2019 total trailed the 2018 total by 656 pages.
 
The Trump administration has added an average of 1,135 pages to the Federal Register each week in 2019 as of May 17. 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.
 
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.
 
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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