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Agencies Still Hand-Delivering Regulatory Documents to Capitol

March 24, 2020, 1:46 PM

Agencies issuing emergency and other regulations during the novel coronavirus pandemic are facing an unexpected conundrum: hand-deliver paper copies of their rules to Capitol Hill, or adhere to social distancing.

The Congressional Review Act of 1996 requires agencies to “submit” all final rules to the House, Senate and Government Accountability Office before they can take effect. The House and Senate parliamentarians are continuing to require that the submissions be made by hand or regular mail, said an administration official who requested anonymity to describe discussions with Congress.

The need for speed in response to the health crisis could spur lawmakers to change the requirement and allow electronic transmissions, after attempts failed in the previous administration, the official suggested.

Congressional offices don’t have the server capacity or security protocols to verify regulations and handle the thousands of pages of reports, graphics, letters, and other “executive communications” received daily by the vice president’s office in the Capitol, said a Senate staffer who wasn’t authorized to speak on behalf of that office. They also can’t accept fax transmissions, which must include an original signature from the head of the agency issuing the regulation.

The law doesn’t specify the delivery of paper copies, but it’s the method required by the House and Senate parliamentarians, who so far aren’t making exceptions, the administration official said. Agencies also can mail documents, but all mail sent to Congress goes through a special screening process, including irradiation, that significantly slows delivery—not an option for time-sensitive regulations, the official said.

The Families First Coronavirus Response Act (Public Law 116-127) enacted on March 18 requires certain employers to provide their workers with paid sick and expanded family and medical leave. The Department of Labor’s Wage and Hour Division, charged with administering and enforcing the new law’s paid leave requirements, was given 15 days after enactment to put rules into effect.

Also on a tight timeline, the Department of Health and Human Services must issue multiple regulatory waivers and guidance documents for doctors and hospitals treating patients with Covid-19, the disease caused by coronavirus. The Food and Drug Administration published guidance Monday, effective immediately, on the production of alcohol-based hand sanitizer.

The offices of the Senate parliamentarian and the House clerk didn’t provide immediate comment.

Email Option Requested

In-person delivery appears to be at odds with both social distancing and the latest memorandum issued Sunday to all executive branch departments and agencies directing the use of technology whenever possible in response to the spread of Covid-19. The memo was signed by Margaret Weichert, deputy director for management at the White House Office of Management and Budget.

The GAO since 1999 has allowed the electronic submission of rules and reports. At the moment, GAO isn’t accepting rule submissions by mail or fax. In a notice posted to its website, GAO said with so many of its staff working remotely, agencies should send their rule submissions via email.

The current requirement by the Senate and House parliamentarians that rules be delivered in person is untenable, not required by the statute, and easily remedied by accepting rule submissions by email, an OMB spokesperson said. This is especially true given the current widespread use of telework in federal agencies, restrictions on physical access for non-congressional staff to the Capitol grounds, and the emergency nature of many of the rules agencies are issuing, the spokesperson said.

The House passed legislation twice, in 2008 and 2009, that would have required agencies to submit regulations only to the GAO, but the bills stalled in the Senate both times.

There is no advantage to hand delivery, said Curtis Copeland, a former GAO and Congressional Research Service analyst, now retired, who authored a reportin 2009 on rules not properly submitted under the Congressional Review Act. “In fact, in many ways, it is a clear disadvantage,” he said in an email.

It’s more time-consuming and costly for agencies to hand deliver, as either an agency staffer must be sent or the agency must hire a messenger service, Copeland said. There’s also more opportunity for rules to get lost, and once delivered, the hard copies must be sent to the committees of jurisdiction, which would be easier to do electronically, he said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bgov.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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