Washington Insider -- Thursday

Open While Shut Down

Here’s a quick monitor of Washington farm and trade policy issues from DTN’s well-placed observer.

USDA To Reopen Some FSA Offices Temporarily

USDA has announced that some Farm Service Agency (FSA) offices will reopen open for at least three days – January 17, 18 and 22 – to "perform certain limited services for farmers and ranchers."

USDA is recalling about 2,500 FSA employees to reopen offices those three days for normal business hours – the offices will be closed Monday, January 21 for the Dr. Martin Luther King, Jr. holiday.

"In almost half of FSA locations, FSA staff will be available to assist agricultural producers with existing farm loans and to ensure the agency provides 1099 tax documents to borrowers by the Internal Revenue Service’s deadline," USDA said in announcing the action.

Staff members will be available at certain FSA offices to help producers with specific services, including processing payments made on or before December 31, 2018; continuing expiring financing statements; and opening mail to identify priority items.

Additionally, as an intermittent incidental duty, staff may release proceeds from the sale of loan security by signing checks jointly payable to FSA that are brought to the county office by producers.

While staff are available in person during this three-day window, USDA that most available services can be handled over the phone. Producers can begin contacting staff on January 17 here.

Additionally, farmers who have loan deadlines during the lapse in funding do not need to make payments until the government shutdown ends.

However, several activities still will not take place during the temporary reopening, including taking new enrollments and certifying production information for Market Facilitation Program (MFP) payments or allowing producers to obtain new loans.

Wheeler Says E15 Rule Could be Delayed Due to Shutdown

Release of the proposed rule from EPA to allow sales of E15 fuel (15 percent ethanol/85 percent gasoline) may be delayed due to the government shutdown, acting EPA Administrator Andy Wheeler told lawmakers during his confirmation hearing before the Senate Environment and Public Works Committee.

"Originally we were planning on issuing the rule in February ... We have not been shut down as long as the other departments but we may be slightly delayed at this point," Wheeler said.

EPA "can only work on court-ordered deadlines or emergencies" during the partial U.S. government shutdown, Wheeler said in response to a question from Sen. Joni Enrst, R-Iowa. EPA originally said it planned to release the proposed rule in February.

However, Wheeler said he expects the agency to meet their original goal of having the rule finalized “in time for the summer driving season, provided we are back’’ in a reasonable time. The 2019 summer driving season starts in June.

As for the sensitive topic of small refiner exemptions (SREs) relative to their obligations under the Renewable Fuel Standard (RFS), panel Chair John Barrasso, R-Wyo., pointed out that there are 11 SREs that have been requested but not yet acted upon and have been pending more than 90 days.

EPA's website shows that 22 SREs had been received for the 2018 compliance year as of December 18, the last date that information was updated.

Wheeler noted that the agency cannot limit when refiners can apply for SREs nor can then delay those decisions beyond 90 days. He also pointed out that EPA does not receive those SRE requests until after the Department of Energy has reviewed them.

The panel has planned a vote on Wheeler's nomination February 5.

Washington Insider: Open While Shut Down

The urban media is fascinated by the administration’s increasing reliance on departments that operate while officially shut down. For example, Bloomberg said that increasing numbers of employees are being invited back to work for no pay – with payment promised “after the shutdown ends.”

Bloomberg says the administration is “ordering thousands of furloughed federal employees back to work to inspect planes, issue tax refunds, monitor food safety and facilitate the sale of offshore oil drilling rights,” among other “critical” tasks.

This effort is fairly recent, Bloomberg says, and illustrates how President Donald Trump is trying to limit the impact of the partial shutdown and “to shield favored industries even as the funding fight thwarts the deployment of new aircraft, stock offerings and even craft beers.”

The report points out that the Obama administration took “the opposite approach in 2013 by erecting barricades around open-air monuments and largely closing national parks” – then leveraging public anger to blame Republicans for halted government services.

Bloomberg also argues that “critics” are charging that the administration is skirting federal law by continuing some functions amid the political stalemate. It cites a 149-year-old law that bars agencies from spending money Congress hasn’t given to them with only limited exceptions for “emergencies involving the safety of human life or the protection of property.”

“This administration is being creative in its ability to break the law and test the boundaries,” said Sam Berger, a senior adviser at the Center for American Progress who worked at the Office of Management and Budget under former President Barack Obama.

“They are really walking up to and past that line,” Berger said. “It’s clear they are making political calls, and they aren’t letting decisions be dictated by sound management, by the law or by really anything other than the next 10 minutes of news coverage and how they can win the day.”

The responsibility for prosecuting violations of the 1870 Anti-deficiency Act falls to the Justice Department – and no one’s ever been hauled to court to account for flouting the law. It’s not clear if anyone else would have standing to challenge agency spending and activities that continue amid a shutdown.

Paychecks for the 800,000 laid-off government employees have been halted, including for about 420,000 who have been forced to work anyway, Bloomberg says.

The administration called back some 46,000 furloughed employees, according to an updated contingency plan released Tuesday, with many put to work issuing tax refunds even though the Treasury Department previously decided a shutdown would bar the activity.

The National Treasury Employees Union is suing the federal government for making those employees work without pay, arguing that forcing them to process tax refunds falls outside the scope of activities that should be permitted during a shutdown. A federal judge in Washington on Tuesday rejected a request by that union and other federal workers to issue a temporary order compelling the U.S. to pay its workers or let them take jobs elsewhere.

The plaintiffs included the Air Traffic Controllers Association, as work to patrol the skies continues amid the shutdown. The Federal Aviation Administration said on Tuesday it had “determined that after three weeks, it is appropriate to recall inspectors and engineers.” Those recalled workers will “perform duties to ensure continuous operational safety of the entire national airspace.”

But they also may help the FAA begin processing a backlog of company applications to launch new flights and add planes to their fleets. American Airlines Group Inc. had been blocked from adding two newly purchased planes to its operations because safety inspectors must approve such additions. Southwest Airlines Co. said on Monday it was delaying a new service to Hawaii because it hadn’t been able to obtain FAA approvals necessary to fly long distances over water.

The Food and Drug Administration had briefly suspended some inspections before summoning furloughed employees back to conduct the work.

“With the support of our dedicated field force, we’re recalling hundreds of furloughed colleagues to conduct inspections of high risk food facilities and other entities,” FDA Commissioner Scott Gottlieb said Monday. Gottlieb said the inspectors will be working on “mostly unpaid” assignments, as about 150 of the roughly 400 newly recalled workers seek to ensure companies are complying with federal standards for making, processing and packing food.

The Interior Department is now clearing the way for previously furloughed workers to help sell drilling rights in U.S. coastal waters and recalled temporarily workers to prepare documents necessary for auctions expected in March and August. The Bureau of Ocean Energy Management said it is tapping “carryover” funding from Fiscal Year 2018 to facilitate the activity, with the employees exempted “for only the amount of time needed to complete this work.” Critics are questioning the source and legal availability of such funds.

The administration is using some available funds to push forward a “fossil fuel-oriented energy dominance agenda” in inexcusable ways, said David Hayes, a former deputy Interior secretary.

Both sides of this fight seem deeply dug in, but these positions are beginning to look pretty porous and even shaky—especially the policy of having agencies both shutdown and working. Clearly, this is a fight producers should watch closely as it continues, Washington Insider believes.

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