Notice & Comment

GAO Rebukes Federal Register for Publishing Rules During Shutdown

I wrote last year about GAO’s assessment that OIRA violated the Anti-Deficiency Act when it worked on agencies’ rules during the last shutdown.

GAO’s issued a similar letter today, this time finding that the National Archives and Records Administration (NARA) violated the law when it published rules in the Federal Register during that same shutdown. (The Office of the Federal Register (OFR) is part of NARA.) NARA told GAO that it relied on the individual agencies’ assessments that their documents were “necessary for the protection of property or human life or would prevent or significantly damage the execution of funded functions at an agency.” This was the standard articulated in guidance the Office of the Federal Register issued in the middle of the shutdown.

Although NARA told GAO that its Federal Register staff deferred to the publishing agencies because “OFR staff do not have the authority, knowledge, or resources to evaluate the specific governmental functions cited as exceptions to the Antideficiency Act,” GAO chided NARA for its “cursory examination.” The letter goes on to evaluate whether a handful of rules met the test for an ADA exception, finding the legal basis lacking.

The letter closes with a warning: “With this decision, we will consider any future obligations of this nature in similar circumstances to be a knowing and willful violation of the Antideficiency Act. See 31 U.S.C. § 1350.”

In the OMB letter, GAO included a similar warning and noted “that officials responsible for obligations in violation of the [ADA] shall be ‘fined not more than $5,000, imprisoned for not more than 2 years, or both.’ 31 U.S.C. § 1350.”

The penalties for ADA violations are serious and personal. While I don’t know how likely it is that we’ll find ourselves in another extended, partial shutdown any time soon, I expect this GAO opinion will have a chilling effect on attempts to locate ADA flexibility to publish rules during a shutdown.

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