Last week was a brisk yet active one in the pages of the Federal Register. And while it is beginning to sound rote, it is important to note: The billion-dollar trend continues. Out of the eight rulemakings with some quantified economic impact, three crossed that notable threshold. After a brief dip into net-savings the week prior, the cost column shot back up into the positive side in fairly dramatic fashion with rulemakings from the Departments of Labor (DOL) and Health and Human Services (HHS) standing out. Across all rulemakings, agencies published $12.9 billion in total costs and added 10.8 million annual paperwork burden hours.

REGULATORY TOPLINES

• Proposed Rules: 73
• Final Rules: 46
• 2024 Total Pages: 9,721
• 2024 Final Rule Costs: $4.4 billion
• 2024 Proposed Rule Costs: $21.4 billion

NOTABLE REGULATORY ACTIONS

The most consequential action of the week from a cost perspective was the proposed rule from DOL regarding “Emergency Response Standard.” The proposal, technically under the auspices of the Occupational Safety and Health Administration (OHSA), updates relevant regulatory code pertaining to the sub-agency to “address a broader scope of emergency responders and would include programmatic elements to protect emergency responders from a variety of occupational hazards.” In both expanding the scope of the standard to incorporate more categories of responders and establishing further standards for those covered groups, OSHA anticipates that the proposal will have wide and varied impacts. Overall, the agency estimates annualized costs of $668 million, or roughly $9.2 billion in present value over a 50-year analytical period.

TRACKING THE ADMINISTRATIONS

As we have already seen from executive orders and memos, the Biden Administration will surely provide plenty of contrasts with the Trump Administration on the regulatory front. And while there is a general expectation that the current administration will seek to broadly restore Obama-esque regulatory actions, there will also be areas where it charts its own course. Since the AAF RegRodeo data extend back to 2005, it is possible to provide weekly updates on how the top-level trends of President Biden’s regulatory record track with those of his two most recent predecessors. The following table provides the cumulative totals of final rules containing some quantified economic impact from each administration through this point in their respective terms.The Biden Administration saw noticeable bumps in both its cost and paperwork totals, with increases of $1.6 billion and 6.9 million hours, respectively. An HHS rule regarding interoperability requirements across various health programs provided the bulk of these increases. As for the other administrations, the main action came from this time during the Obama Administration. Early February 2012 saw costs and paperwork increase by $7.5 billion and 6.3 million hours. The Department of Justice and the Consumer Financial Protection Bureau were the main drivers of those respective trends.

THIS WEEK’S REGULATORY PICTURE

This week, the Office of Personnel Management (OPM) seeks to update how it handles applicants that did not duly register with the Selective Service System (SSS).Source: “SSS Form 1 Registration Form” from Selective Service System website

Last Wednesday, OPM published a proposed rule entitled “Bar to Appointment of Persons Who Fail To Register Under Selective Service Law.” For those unfamiliar with the agency, OPM is essentially the human resources department of the federal government tasked with vetting and processing applicants looking to work for federal agencies. One fairly obscure consideration during the federal hiring process is an applicant’s Selective Service registration status.

The Selective Service stands as essentially the nation’s military-draft-in-waiting as it is a compilation of potential draftees to utilize only if a military action rises to such a level that once again requires a full-on draft. For the past several decades, however, it has merely been the above postcard-size form required of “all male citizens and every other male person residing in the U.S. between the ages of 18 and 26 who were born after December 31, 1959.” Where the OPM part comes in is that a 1985 law dictates “that men who are born in 1960 or later and who are required to, but did not, register…generally are ineligible for Federal service.” Additionally, covered individuals have until age 26 to duly register, but if that deadline passes, “he may no longer register and is no longer able to correct his failure to register.” As such, this rulemaking primarily seeks to update how OPM adjudicates instances of applicants whose SSS registration window has lapsed.

What is mostly at stake here for such applicants is “why” they failed to register in a timely fashion. In particular, the relevant determination hinges on the qualifiers of “knowing” and “willing” non-compliance. As OPM notes:

There is substantial case law, under the Act and in other contexts, concerning the meaning of the terms “knowing” and “willful.” Although OPM acknowledges that the terms have substantial overlap, it is possible, at least theoretically, that a failure to register could be knowing but not willful or the reverse. Accordingly, OPM believes that there are divergent potential interpretations of the statute, either of which could be reasonable constructions, and that this ambiguity should be resolved.

To resolve this, OPM proposes to:

• Determine “that a failure to register is not a bar to appointment unless such failure was both knowing and willful;”
• Establish “more robust procedures” for how applicants can challenge a “failure to register” designation; and
• Clarifies that OPM – not the agency the applicant seeks to work for – retains the primary responsibility of adjudicating such determinations.

Interested parties have until April 8, 2024, to submit comment on the matter.

TOTAL BURDENS

Since January 1, the federal government has published $25.8 billion in total net costs (with $4.4 billion in new costs from finalized rules) and 16.2 million hours of net annual paperwork burden increases (with 9.5 million hours coming from final rules).