The regulation referee

The regulation referee
© Greg Nash

Oliver Potts was in a race against time.

President Obama’s second term in the White House was coming to an end, and federal
agencies were scrambling to issue one last flurry of rules before Donald TrumpDonald John TrumpDems win from coast to coast Falwell after Gillespie loss: 'DC should annex' Northern Virginia Dems see gains in Virginia's House of Delegates MORE shut off the regulatory spigot in Washington.

That’s where Potts came in. Think of him as the gatekeeper of federal regulations. The director of the Federal Register became the busiest man in Washington after last year’s election as he weathered the storm of “midnight rules” raining down from the Obama administration.

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The Federal Register, the government’s official rulebook, churned out more than 26,000 pages of regulations between Election Day and Inauguration Day, many of which may eventually find themselves in the rainbow of rulebooks that line the shelves around Potts’s office, each year a different color. The final edition under Obama contained 1,464 pages spread across three books, compared to about 300 pages on a typical day during his administration.

Then, President Trump flipped the switch.

The night of Trump’s inauguration he ordered a regulatory moratorium, placing Potts in the awkward position of pulling back many of the rules his team worked so hard to publish in the final days of the Obama White House.

“We knew a lot of those rules wouldn’t survive,” Potts told The Hill. “It’s a strange feeling. We worked hard to publish all of those rules, and now we need just as much zeal to undo them.”

“It’s like digging a hole, and then filling it back up,” he joked.

“But that’s the job,” Potts added. “We’ll work just as hard for President Trump at the end of his administration.”

The Federal Register is at the center of a fight between Republicans and Democrats, but it shies away from the politics. Potts sees himself as the editor of a newspaper that records the history of the government’s rulemaking activities. Rules may come and go, but his responsibility is to keep the public informed at each step along the way.

“We’re almost 81 years old and we’ve never missed an issue,” Potts proudly pointed out as he knocked on wood.

Avoiding the political limelight is no easy task for Potts. Aside from publishing a number of controversial rules, the Federal Register is also tasked with overseeing the Electoral College, which came under renewed scrutiny following the 2016 election.

Trump secured the White House with 304 Electoral College votes, even though Hillary ClintonHillary Diane Rodham ClintonGOP rushes to cut ties to Moore Papadopoulos was in regular contact with Stephen Miller, helped edit Trump speech: report Bannon jokes Clinton got her ‘ass kicked’ in 2016 election MORE won the popular vote by nearly 3 million ballots.

“We’re like the referees,” Potts said. “There was a lot of heat coming at us. Some people were trying to persuade us to change the outcome of the election.”

As Obama was preparing to leave office, the Federal Register faced a backlog and Potts realized he did not have the manpower, “or womanpower,” he said, correcting himself, to keep up with all of the rules federal agencies were rushing through the pipeline.

The Federal Register had about a half-dozen staff members reviewing final rules at the time. The White House and several agencies offered to lend a hand, but Potts said they would only have slowed the process down, because his team would’ve had to train them.

“There was too much to get done in too little time,” said Potts.

On the Sunday night before Trump’s inauguration, Potts was out for a run when he received a call from a federal agency anxious to publish a last-minute regulation. Potts didn’t know the answer. So he enlisted the help of Amy Bunk, the director of legal affairs at the Federal Register, who was also jogging. “I didn’t even stop running,” said Bunk, who wears a Fitbit to the office each day. “I just kept talking to him.

“We certainly weren’t bored.”

To get through the busy days at the Federal Register, Potts will surprise his team from time to time with Sugar Shack Donuts treats topped with bacon. 

Not that they need any more sweets. 

During the height of the Obama administration’s “midnight period” — a term you’ll never catch Potts using — federal agencies sent thank-you notes along with fruit baskets, cheese and crackers, cookies, and Lindor chocolate truffles to the Federal Register staff as tokens of their appreciation. 

“It was a lot of work, but we realized we were involved in something important,” said Jim Hemphill, a special assistant to Potts.

The beginning of the Trump administration presents a new set of challenges for the Federal Register, which was first printed in 1936.

Trump has vowed to roll back 75 percent of government regulations. The White House ordered agencies to eliminate two old rules for every new rule they issue, while the Republican-controlled Congress is undertaking its own ambitious plan to overturn dozens more.

This will keep Potts on his toes.

“That’s a huge undertaking,” said Potts, who became the ninth director of the Federal Register in 2015. “There was no break between the Obama and Trump administrations.”

It’s not as simple as erasing thousands of pages of rules from the Federal Register.

Going back to Potts’s analogy, the Federal Register is like a newspaper, and once an edition has been printed, Trump can’t wipe it out of existence.

“We don’t allow rules to mysteriously disappear,” Potts said. “We won’t brush things under the rug.”

Bunk sees it as a teaching moment for the Trump administration. “You can’t just say, ‘I’m taking everything out,’ ” she explained.

What Trump can do is target the Code of Federal Regulations, another publication that represents the government’s current rules at any moment in time.

Potts publishes the Code of Federal Regulations once a year, and the most recent edition contained more than 178,000 pages, which filled 237 books.

Trump has already recalled a number of Obama-era rules that were sent to the Federal Register but not published in time. The president also delayed recently published rules from going into effect. But to repeal the vast majority of rules, agencies must go through the same lengthy public notice-and-comment process it takes to issue a new one.

This could keep the Federal Register busy over the next four years, but Potts says he’s ready for whatever challenges may come his way.

Potts is sympathetic to the pressures agencies face in crafting new rules, because he used to be in their shoes. Before leading the Federal Register, Potts was deputy executive secretary in charge of regulations at the Department of Health and Human Services, where he often found himself on the other end of the conversation asking for the Federal Register to “bend its rules.”

These days, Potts prides himself on the level of “customer service,” as he puts it, the Federal Register provides to agencies.

Writing a regulation is often “very frantic for federal agencies,” said Potts, “and I try to lend some order to that chaos at the end of the process.”