The Trump administration has directed all agency rulemaking activities to continue despite growing calls from lawmakers, state attorneys general, and regulated entities to postpone consideration of any rule that doesn’t address the novel coronavirus pandemic.
“Work on behalf of the American people must continue during this period,” White House regulatory chief Paul Ray wrote in a March 23 memo to agency leaders.
Ray heads the Office of Information and Regulatory Affairs, an agency within the White House Office of Management and Budget that enforces the president’s regulatory policies. He said a wholesale extension of pending notices of proposed rulemakings “would be inappropriate,” but that agencies are free to extend comment periods in particular cases in consultation with OIRA.
Yet in recent days a number of important regulatory moves have been made, even as the White House budget office has received a flurry of requests asking for a reprieve from regulatory business-as-usual while the nation struggles to battle the pandemic.
Significantly, OIRA approved on March 30 a highly controversial final rule from the Environmental Protection Agency rolling back Obama-era auto emission standards. Also in the last few days alone, OIRA has approved a proposed rule from the Department of Commerce to adjust trademark fees, a final rule from the Department of Education governing charges of sexual misconduct on college campuses, and a proposed rule from the Department of Transportation to streamline licensing of launch and reentry operations for commercial space vehicles.
The day after the EPA finalized the emissions rule, a group of 21 state attorneys general requested the administration freeze all new and pending non-emergency regulations. They suggested OMB and all executive branch agencies should prioritize regulations that respond to the coronavirus pandemic.
The EPA, for example, is waiting for OIRA to approve a final rule asserting that mercury-pollution-control requirements are too costly for coal-fired power plants. The Consumer Financial Protection Bureau, meanwhile, is working to finish its revision of an October 2017 payday-lending regulation that would eliminate repayment-related requirements developed under former Director Richard Cordray.
Halting pending rules would help ensure the federal government does not unnecessarily divert attention or siphon resources from state or local governments, the public, businesses, and other organizations, the state attorneys general said.
“While the federal Government is mobilizing, state and local governments across the country have been wholly dedicated to responding to the emergency and combatting the spread of this deadly virus,” the attorneys general wrote, adding that communication also has been strained by local virus-response orders.
On Wednesday, 14 House committee chairs asked acting OMB Director Russell Vought to provide an immediate extension of public comment periods, hearings, and meetings on non-emergency rulemakings. The Democratic lawmakers recommended extensions of at least 45 days beyond a decision to lift the national emergency declaration.
EPA’s proposed rule on strengthening transparency in regulatory science, for example, includes major provisions that would limit the agency’s ability to use critical studies that demonstrate the consequences of pollution on public health, the House committee chairs wrote. That rulemaking was published in the Federal Register on March 18, allowing for only 30 days until the April 17 comment deadline.
A spokesman for the White House budget office emphasized that Ray’s memo advised agencies “to consider extending comment periods on a case by case basis in their discretion, consistent with sensitivity to urgency in particular rulemakings.”
The CFPB on Friday announced that it would extend until June 5 the comment period on a proposed time-barred debt rule, due to the “challenges” posed by the Covid-19 pandemic, the disease caused by the novel coronavirus.
Even the private sector has weighed in. The Independent Community Bankers of America sent a letter March 30 to the heads of seven financial regulatory agencies requesting they delay by 180 days all rulemakings not related to coronavirus response.
Among other rulemaking activities, the delay should apply to all active and pending requests for comments, requests for information, proposed and final rules, and proposed rules planned but not published, the bankers said.
“Combating the COVID-19 crisis demands the full attention and all available resources from the public, from state, local, and federal government entities, as well as all industries, including the vital financial services industry,” the bankers said.
These requests make clear that the White House budget office needs to give consistent direction to all agencies, rather than to allow each one to decide whether to grant delays on a case-by-case basis, said Amit Narang, regulatory policy advocate at Public Citizen.
“It’s becoming increasingly conspicuous that while everything else in government is getting disrupted, the administration is continuing its deregulatory agenda and rollbacks as if it’s business as usual,” Narang said.