The Shutdown Is Over: How Does that Affect Regulation?

On January 25, President Trump signed legislation to end a 35-day partial federal shutdown. The deal only lasts for three weeks, so another shutdown could happen if Trump and Congress don’t reach a longer-term deal by then.

During the partial shutdown, the Federal Register slowed to a crawl. Published every weekday, an average day’s edition consists of about 270 pages and contains a dozen or so new final regulations, plus proposed regulations, agency notices, and presidential documents. Compare this with 18 final regulations and 436 pages published all year through January 28.

What will happen now? Very little, for the first few days of normalcy. There is typically a 2-3 day lag between the time an agency submits an item to the Federal Register and when it runs. When that period ends, there will likely be a temporary flood to make up for rules and notices that agencies originally intended to publish during the shutdown, but could not. That busy period will likely last just a week or two, then it should be normal activity levels from there.

The big lesson is that even a month-long shutdown will have little impact on how much regulating agencies do. Rules that were scuttled during the shutdown will come into effect just the same, except a little later or with less advance notice.

It is also possible that agencies will simply not bother to publish some overdue notices or other documents, which could be a transparency concern. Hopefully this kind of evasion will be minimal, but it will be impossible to quantify.

Of course, the shutdown drama might not be over yet. Both sides are dug in on the border wall debate, and they are not guaranteed to reach a deal in the next three weeks. If they don’t, the process will repeat, and the Federal Register will again go through a lull and a flood. But the net consequences will be virtually nil.

There are lessons to be learned from shutdown battles, such as the wisdom of leaving something as important as air traffic safety in government’s bumbling hands. But as far as federal rulemaking is concerned, there is little to get worked up about, regardless of one’s policy views.