Coronavirus slows—but doesn’t stop—agency rulemaking and adjudication

Federal agencies are moving forward with rulemaking and adjudication during the coronavirus outbreak, despite calls from lawmakers, advocacy groups, and state and local governments to pause or delay proceedings. Federal agencies continue to take action, albeit with technological modifications and revised timelines in certain cases.

*Rulemaking*: Agency rulemaking is continuing during the coronavirus outbreak. Pending regulations include a revised proposed rule from the Environmental Protection Agency (EPA) modifying the agency’s approach to certain scientific data, a proposed rule from the Federal Labor Relations Authority’s (FLRA) allowing government workers to stop paying union dues after one year, and an EPA proposal to modify an Obama-era regulation governing coal-burning power plant waste.

U.S. Senator Sherrod Brown (D-Ohio) on March 17 sent letters to the heads of eight financial regulatory agencies, including the Federal Reserve Board and the Consumer Financial Protection Bureau (CFPB), urging the agencies to halt rulemaking during the coronavirus crisis. A group of 40 advocacy groups including Greenpeace, Public Citizen and Americans for Financial Reform on March 24 sent a letter to the White House Office of Information and Regulatory Affairs (OIRA) requesting that federal agencies pause rulemaking unrelated to the coronavirus outbreak. A group of 21 state attorneys general sent a similar letter to the White House Office of Management and Budget (OMB) on March 31.

*Comment periods*: As agency rulemaking continues, state governments and federal lawmakers have asked federal agencies to pause or extend their comment periods during the coronavirus outbreak. A coalition of state and local government groups led by the National Governors Association on March 20 sent a letter to President Trump (R) asking for agencies to extend comment periods on active rulemakings to allow them to better engage in the rulemaking process at a later date. Similarly, fourteen committee chairs in the U.S. House of Representatives on April 1 sent a letter to OMB requesting that OMB direct agencies to extend comment periods at least 45 days past the end of the national emergency.

OMB advised agencies to extend comment periods on a case-by-case basis. The EPA and the CFPB extended public comment periods for selected rules, including the EPA’s proposal to modify its approach to certain scientific data. The U.S. Food and Drug Administration (FDA), which has an internal regulation requiring public comment on its guidance documents, announced on March 20 that it would implement coronavirus guidance documents without holding comment periods and, instead, would allow for revisions based on public feedback at a later date.

*Adjudication*: Agency adjudication is continuing during the coronavirus outbreak and many agencies, including the Board of Veterans Appeals, the Internal Revenue Service, and the Social Security Administration, have suspended in-person hearings in favor of video or telephone hearings where feasible. Other agencies, such as the National Labor Relations Board (NLRB), have temporarily suspended hearings until a later date.

Additional reading:
Comment Period
Office of Information and Regulatory Affairs
Office of Management and Budget