April 09, 2020

Udall Leads Senate Democrats In Urging Trump Administration to Indefinitely Extend Public Comment Periods and Pause Unrelated Federal Rulemakings During COVID-19 Pandemic Emergency

Trump administration is continuing controversial rulemakings that affect public health and safety - while the COVID-19 pandemic prevents Americans from weighing in on national policymaking process and necessary Tribal consultation

WASHINGTON—Today, U.S. Senator Tom Udall (D-N.M.) and 21 Senate Democrats sent a letter to Acting Director of the U.S. Office of Management and Budget (OMB) Russell Vought, calling on the executive branch to protect Americans’ right to participate in the democratic policy-making process, at a time when millions are worried about their and their loved ones’ health, safety and economic security and are unable to fully participate in the public comment process. 

The senators requested that OMB indefinitely extend existing public comment periods and hearings until the public can safely gather after the dangers of the COVID-19 pandemic have passed. The senators are also requesting that the Trump administration pause new federal rulemaking unrelated to the COVID-19 pandemic response during the national emergency. The senators sent the letter as Americans across the country are focused on the safety and well-being of themselves and their families during this global crisis. As the senators note, it is unreasonable to expect public comment periods to reflect public opinion and meaningful participation, including Tribal consultation, given the severe limitations and disruptions created by the COVID-19 pandemic.

The Trump administration has proposed and issued a total of 15 federal rules since the U.S. Department of Health and Human Services issued a Public Health Emergency declaration for COVID-19 on January 31.

“As you know, our nation is in the midst of a global pandemic and a worsening public health crisis, and the necessary emergency response is causing a major disruption to economic activity and millions of jobs,” the senators began.

“These challenges are unprecedented during the time since Congress enacted the two foundational laws aimed at guaranteeing Americans the right to have their voice heard in how federal policies are implemented: the Administrative Procedures Act in 1946 and the National Environmental Policy Act in 1970,” the senators continued. 

The senators urged the Trump administration to instruct all federal agencies to indefinitely extend all open or announced upcoming public comment periods and pause any new administrative rulemaking actions, unless those actions are explicitly required for the COVID-19 response and recovery. 

“Necessary federal, state, Tribal and local government actions to stop the spread of COVID-19, such as cancellation of public meetings and stay-at-home orders, are currently denying access to government for millions of low-income and rural Americans, along with Indian Tribes with whom the government is obligated by law to consult. It is not enough to direct individuals to online rulemaking portals.   

“To be clear, we are not calling for this Administration to abandon activities that are essential to the COVID-19 response, that are subject to unalterable legal deadlines, or for which delays would cause foreseeable harm to public health, safety, consumer protections, or financial stability,” the senators concluded. “Instead, this is an important part of a broader call for this Administration to recalibrate its existing responsibilities with the urgent need of responding to the COVID-19 pandemic.”

Last week, Udall, together with Senators Jeff Merkley (D-Ore.) and Ron Wyden (D-Ore.) sent a letter to U.S. Secretary of the Interior David Bernhardt urging him to suspend all rulemaking actions unrelated to COVID-19. In March, a diverse group of over 170 public interest, labor, environmental and  grassroots organizations representing millions of Americans signed aletter led by the Center for Progressive Reform calling on the administration to extend public comment periods in light of the COVID-19 pandemic.

Udall was joined in the letter by U.S. Senators Jacky Rosen (D-Nev.), Sheldon Whitehouse (D-R.I.), Angus King (I-Maine), Ron Wyden (D-Ore.), Chris Van Hollen (D-Md.), Dianne Feinstein (D-Calif.), Kamala D. Harris (D-Calif.), Ed Markey (D-Mass.), Brian Schatz (D-Hawaii), Elizabeth Warren (D-Mass.), Jeffrey A. Merkley (D-Ore.), Amy Klobuchar (D-Minn.), Tammy Baldwin (D-Wisc.), Martin Heinrich (D-N.M.), Jack Reed (D-R.I.), Michael F. Bennet (D-Colo.), Tina Smith (D-Minn.), Mazie Hirono (D-Hawaii), Maria Cantwell (D-Wash.), Sherrod Brown (D-Ohio), and Cory Booker (D-N.J.). 

The full text of the senators’ letter is available here and below:

Dear Mr. Vought:

As you know, our nation is in the midst of a global pandemic and a worsening public health crisis, and the necessary emergency response is causing a major disruption to economic activity and millions of jobs.  While Congress and the executive branch have taken steps to protect the health and welfare of the American people and our economy, more must be done to protect citizens’ fundamental right to participate in the operations of their government.  

Specifically, we request you take two broad steps:

1. Instruct all federal agencies to indefinitely extend all open or announced upcoming public comment periods for rulemakings and administrative actions not related to the COVID-19 pandemic response; and,

2. Pause any new Administrative rulemaking actions, unless those actions are explicitly required for the COVID-19 response and recovery. If anything, agencies should be focused on how they can redeploy their existing resources to contributing to the federal government’s response to this crisis.

The reasons for these requests are abundant.  Across our country, schools, libraries, and community centers are closing.  Businesses are cutting back or closing temporarily, leaving millions and millions of Americans worrying about their economic security and facing enormous new challenges such as adjusting to new working conditions or finding alternative means of childcare.  These challenges are unprecedented during the time since Congress enacted the two foundational laws aimed at guaranteeing Americans the right to have their voice heard in how federal policies are implemented: the Administrative Procedures Act in 1946 and the National Environmental Policy Act in 1970.  

Americans are worried about whether they and their loved ones have contracted COVID-19, whether tests are available, how to care for high-risk populations and when to self-quarantine—and whether they have a paycheck to feed and house themselves and their families.  Small business owners are concerned about their employees' health and making ends meet as people are increasingly taking precautions by stocking up and staying home.  Healthcare workers are working overtime, risking their own health, devoting their full time and energy to saving the lives of their fellow Americans.

Necessary federal, state, Tribal and local government actions to stop the spread of COVID-19, such as cancellation of public meetings and stay-at-home orders, are currently denying access to government for millions of low-income and rural Americans, along with Indian Tribes with whom the government is obligated by law to consult. It is not enough to direct individuals to online rulemaking portals.  Many communities lack reliable broadband access to participate in online comment processes when libraries, community centers, and other places that people rely on for online access are restricting their public hours or are closed to the public altogether.

The American public is not only legally entitled to a meaningful opportunity to participate in these important proceedings; their participation is crucial to ensuring that agencies’ work is carried out effectively.  The public is an invaluable source of expertise for agency decision-makers, and their ability to weigh in on agency decisions advances the good government goals of accountability. Yet, such meaningful participation is an impossibility for tens of millions of Americans during this pandemic emergency period.  We cannot reasonably expect the public to redirect attention from protecting themselves and families to comment on federal agency rules and proceedings that while important, are not related to the crisis at hand or its response. 

Once this crisis is resolved, and we all believe the resilience of the American people coupled with timely government action will see us through this difficult time, these comment periods should remain open for a reasonable period after the crisis has lifted, and any postponed hearings should likewise be rescheduled to allow members of the public ample time to prepare. 

To be clear, we are not calling for this Administration to abandon activities that are essential to the COVID-19 response, that are subject to unalterable legal deadlines, or for which delays would cause foreseeable harm to public health, safety, consumer protections, or financial stability. Instead, this is an important part of a broader call for this Administration to recalibrate its existing responsibilities with the urgent need of responding to the COVID-19 pandemic.

These actions are necessary to preserve fundamental aspects of our democratic process in a time of national emergency. Thank you for your attention to our requests. 

Sincerely,