Emphasis on Final

Eakinomics: IFRs, Emphasis on Final Interim Final Rules (IFRs) are currently all the rage with the administration. In the name of addressing emergency conditions produced by the pandemic, it has been bypassing the notice-and-comment procedures of the Administrative Procedure Act (APA) and issuing IFRs in many areas. There are two aspects of this that stand out. First, they may not be legal. As nicely covered by Dan Goldbeck and Dan Bosch, the “U.S. District Court for the Northern District of California blocked two related interim final rules (IFRs) dealing with visas for high-skilled workers, specifically the H-1B, H-1B1, and E-3 programs. The first rule, published by the Department of Homeland Security (DHS) in October, limited the types of occupations that are covered by the H-1B program. The second rule, published simultaneously by the Department of Labor, raised the minimum wages that employers must pay workers in those visa programs.” A similar fate presumably awaits the Most Favored Nation drug reimbursement rule issued by the Department of Health and Human Services for Medicare Part B. The second aspect has been brought to light by Bosch’s fascinating paper released today on the AAF website: IFRs are often more final than interim. Specifically, he “finds that of significant IFRs issued since November 1993, 61 percent remain in place – meaning they have not been subsequently replaced by either a final rule or another IFR.” Recall that IFRs are supposed to be temporary and that once someone comments on an IFR, the agency is supposed to finalize it using the procedures under the APA. As shown below (reproduced from Bosch’s paper), 852 of 1,392 IFRs issued since 1994 remain in force. (This is only a large sample; not every IFR could be identified).   The bottom line seems clear: Agencies have been abusing the IFR for a long time. Perhaps it is time for Congress to step up its oversight of these regulations.