Coronavirus has mixed effects on agency rulemaking and adjudication (2020)
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Federal agencies are moving forward with rulemaking and adjudication during the coronavirus outbreak, albeit with technological modifications and revised timelines in certain cases.
Rulemaking: Agency rulemaking is continuing during the coronavirus outbreak, despite calls from U.S. Senator Sherrod Brown (D-Ohio), advocacy groups, and state attorneys general to pause rulemaking until the pandemic passes. Weekly published rule totals in the Federal Register are on pace with previous years of the Trump administration, and the Federal Register reached its highest running page total in the first week of April since 2013.
Selected 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 (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.
Comment periods: As agency rulemaking continues, state and local governments and federal lawmakers have asked federal agencies to pause or extend their comment periods during the coronavirus outbreak.
The Office of Management and Budget (OMB) advised agencies to extend comment periods on a case-by-case basis. The EPA and the Consumer Financial Protection Bureau (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.
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