Shutdown Irregularities

by Bridget C.E. Dooling — Monday, Jan. 28, 2019@BridgetDooling

The longest shutdown in the history of the federal government ended yesterday. It lasted 35 days. It was a partial shutdown, but its effects unfold for months, if not longer. While I was trolling around on various .gov websites (dear reader, do I need better hobbies? I think we both know the answer is “no”), I noticed a few shutdown irregularities that I’d like to share with you.

Regulations.gov got a little glitchy during the shutdown. (Regulations.gov is a really important website. It’s where most people file their public comments on proposed regulations.)

Take a look at this entry, for example, a proposed rule from 1977 that washed up like a message in a bottle on Regulations.gov’s shores in 2019. It’s from an agency that no longer exists, the Federal Energy Administration (it was rolled into the Dept of Energy in 1977). The associated document is a yellowed, scanned copy of the Federal Register. This is one of two rules like this that popped up on the site on January 17, 2019. They are not open for public comment, which makes sense because the comment periods closed over 40 years ago, but…why are they there at all? I don’t know.

I’m also puzzled by the three entries for a single proposed rule from the Department of Health  & Human Services:

This is one of the Centers for Medicare & Medicaid Services (CMS) rules implementing the Affordable Care Act. It is an annual rule that was issued later than usualOIRA concluded review on January 16, 2019 (presumably after having determined this was an “excepted activity” that OIRA could work on without violating the Antideficiency Act) and it appeared in Word format on Regulations.gov on January 17. That’s the third entry above. CMS wrote in the word document that comments were due by February 19. On Regulations.gov, though, it said that comments were due January 24. On January 24, the Federal Register published the proposed rule and new entry for the proposed rule appeared on Regulations.gov (that’s the second entry above). The first entry above is a genuine mystery, because it’s the same proposed rule formatted in Federal Register style (i.e., not Word) but with a closed comment period according the Regulations.gov. I have wondered out loud about whether the shutdown would cause problems for agencies in the notice and comment process. This is the type of thing I meant.

As I mentioned before, the back-end feed between Regulations.gov and the Federal Register was offline during the shutdown. And perhaps this will get corrected now that the government is open again. Perhaps they’ll extend the comment period, though that will be tough, operationally, for a rule issued late like this one. Overall, my main takeaway is that seemingly little or technical glitches can cause headaches for the public and the agencies alike.

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