Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis.
Meaningful public participation is one of the bedrock principles upon which our regulatory system is based. Among other things, by enlisting the dispersed expertise of the public, it ensures higher-quality regulatory decision-making, and it imbues the process and its results with a crucial measure of credibility and legitimacy.
This goal of meaningful public participation is most notably enshrined in the Administrative Procedure Act’s requirement that agencies provide members of the public with the opportunity to offer their ideas on a proposed rule by submitting “written data, views, or arguments.” This is no mere paper exercise. Courts require agencies to demonstrate that they have not just solicited comments by engaging with this public feedback in a thoughtful way as they work toward a final rule.
Needless to say, the disruption caused by the COVID-19 pandemic will prevent members of the public from effectively availing themselves of this opportunity. Moreover, to press ahead with open public comment periods could risk putting agency personnel in harm’s way by unnecessarily exposing them to the virus.
Instead of working on non-essential regulations, the Trump administration’s agencies should be exploring ways to redeploy their resources toward aiding the broader response effort. This situation calls for all hands on deck.
This may sound like a drastic step for agencies to take, but a crisis of this magnitude requires a proportionally large response. Besides, as the letter notes, Vought should still permit agencies to make use of the APA’s emergency rulemaking procedures and to pursue expeditiously any active rulemakings that are subject to legal deadlines or for which delays would result in undue harm to public health or safety. This approach would allow agencies to contribute to the COVID-19 response without unduly sacrificing progress on their public interest mission.
In addition, public interest organizations led by CPR have submitted a separate letter that likewise calls on Vought to hold open active public comment periods for pending rulemakings. This letter was signed by a diverse group of 170 public interest, labor, and grassroots organizations representing millions of Americans.