Conservatives fear ‘deluge’ of regulations in shutdown’s wake
By Julian Hattem and Ben Goad - 10/19/13 06:00 AM ET
The federal rulemaking machine is rumbling back to life as agency officials tackle the backlog of work that was created by the government shutdown.
Conservatives worry officials are preparing a surge of new regulations to make up for lost time and meet upcoming deadlines.
Liberals, meanwhile, are relieved that rule makers are back on the job to investigate hazards and issue strengthened protections.
The 16-day government shutdown choked the daily flow of regulations to a trickle as hundreds of thousands of federal workers were furloughed.
During the shutdown, days went by without a new regulation being published in the Federal Register, where the executive branch logs its daily work. On normal days, the book can run hundreds of pages.
Safety advocates warned that the lack of rules meant that cops were off the beat, unable to fight pollution, food-borne illnesses and other threats.
The lack of regulatory action has continued, even after Congress passed a last-minute funding bill on Wednesday night.
On Friday, the Federal Register was just 21 pages long, and contained no new regulations.
The right-leaning American Action Forum conducted a review of regulatory activity following past shutdowns and found a significant spike following a brief government closure in November of 1995.
Virtually no rules were issued in the first days after the shutdown, but activity dramatically increased immediately afterward. Multiple days saw the release of more than 50 regulations.
A longer shutdown later that year that stretched into the beginning of 1996 was followed by a less pronounced increase, according to the analysis.
This time around, the federal government is in the midst of a handful of large regulatory efforts, including the finalization of rules needed to implement ObamaCare.
Sam Batkins, the group’s director of regulatory policy, noted that the administration issued regulatory guidance related to the health law’s insurance exchanges during the shutdown.
“If there is a surge, healthcare regs are a good bet,” he said.
Ryan Young, a fellow at the Competitive Enterprise Institute, wrote in a blog post this week that after a shutdown, agencies tend to “make up for the lost time with a deluge of regulations.”
Others dismiss fears of a regulatory flood.
“The rulemaking staffs were mostly not essential and were furloughed,” said Amit Narang, a regulatory policy advocate with Public Citizen. “So they weren’t able to keep up the work while away. So I imagine that new rules would come out along the same time [as they normally would], just delayed a few weeks.”
Patrick McLaughlin, a senior research fellow at George Mason University’s Mercatus Center, said agencies could try to speed up their work to meet legal deadlines that were not affected by the shutdown.
“You risk doing a bad job when you rush things out the door,” he said.
Some of the lost time at agencies simply can’t be recovered, according to EPA spokeswoman Alisha Johnson.
“EPA employees will work to tackle the three-week backlog on pesticide imports and other services as quickly as possible, however delays are expected in this process,” she told The Hill in an email. “However, other important actions that did not take place during the shutdown, like air, water and hazardous waste inspections, cannot be made up.”
The shutdown was “extremely disruptive,” Sylvia Mathews Burwell, director of the White House Office of Management and Budget (OMB) said during an appearance on PBS NewsHour.
“There's a lot of work that's backed up that people will need to focus on,” she said.
The Office of Information and Regulatory Affairs, housed within OMB, was also shuttered by the budget impasse, with just two of the office’s roughly 40 staffers remaining at work.
That has meant a halt to the review of more than 100 agency rules now awaiting approval.
A spokesman for the Nuclear Regulatory Commission, which used a rainy day fund to keep staffers at work for all but four workdays of the shutdown, said that the stoppage amounted to more than just “hitting a pause button.”
“The mail piled up and there is a time factor that’s necessary to help people get through all of that and be functioning on a current basis,” Eliot Brenner said. “So there was a price to pay for the delay.”
Not all federal agencies have experienced a lag time in getting back up to speed.
The small Consumer Product Safety Commission furloughed more than 95 percent of its workforce when the government closed down, but has been quick to resume its day-to-day operations.
“Staff went right back to working on recalls, doing product testing, conducting surveillance at the ports, and warning parents about the dangers to children with window blind cords,” spokesman Scott Wolfson told The Hill in an email.
Some Republicans have said that the interruption in the regulatory flow was a “silver lining” to the shutdown.
In a blog post this week, Republicans on the Senate Environment and Public Works Committee listed 10 reasons why the shutdown “isn’t all bad,” taking special aim at the EPA.
Pro-regulation groups countered that, if anything, the shutdown made Americans realize the importance of safety protections.
“If there was a silver lining in the government shutdown, it’s the fact that the American public saw very clearly how crucial so many government programs and services are,” Narang said.
“Government is not a bad word anymore.”