Shutdown Thwarted Public Input on Agency Rules

As part of what is likely a series of maneuvers to examine the impact of the recent 35-day partial government shutdown, eight House Democrats have asked White House budget director and acting chief of staff Mick Mulvaney to reopen some expired comment periods for agency rulemaking.

“The longest-ever shutdown of the federal government significantly harmed the right of the American people to meet with federal agencies and comment on proposed actions,” read the Feb. 15 letter by major committee chairmen and organized by the Energy and Commerce panel.  “Public participation is a hallmark of good governance and a core tenet of administrative law.”

The lawmakers also urged Mulvaney to direct agencies to “immediately reschedule all canceled public hearings and meetings,” citing examples of damage from the shutdown including complaints from citizens in East Chicago, Ind., that the Environmental Protection Agency cancelled a public hearing scheduled to discuss remediation of a Superfund site that had earlier forced more than 1,000 residents to move due to contamination. The comment period was cut off on Jan. 14, they noted.

The lawmakers also mentioned the cutoff of comments on the Interior Department’s controversial proposed rule to streamline its process for handling Freedom of Information Act requests.

“Both Reguations.gov and FederalRegister.gov had banners during the shutdown suggesting the sites were not fully operational, and, at one point, Regulations.gov was completely inaccessible,” the letter said. Furloughed staff were unavailable during the appropriations lapse to answer questions, they noted.

The temporarily darkened websites were flagged at the time by the liberal-leaning Public Citizen, which sent out a release on Jan. 17 saying, “The status of Regulations.gov appears to be in flux. Earlier this morning, the site would not load at all. Then a message appeared indicating the site would be offline due to a lapse in funding. The latest message claims that the site will be restored, but provides no time frame for restoration of service.” In a broader comment, Public Citizen Regulatory Policy Associate Matthew Kent said the blackout “represents a complete breakdown of the regulatory process due to President Donald Trump’s shutdown.”

The lawmakers ask that Mulvaney direct agencies to extend the comment periods for 35 days, including those that were subsequently closed, 35 days being the length of the shutdown.

OMB did not respond to a request for comment on Tuesday from Government Executive.

Public Citizen’s regulatory policy advocate Amit Narang on Wednesday said, “Agreeing to this request by multiple House committee chairs will show the Trump Administration both takes the public comment process seriously and recognizes that the government shutdown prevented the public from participating in significant ways.”

The letter was signed by Reps. Frank Pallone Jr., D-N.J.; Elijah Cummings, D-Md.; Jerrold Nadler, D-N.Y.; Bennie Thompson, D-Miss.; Eddie Bernice Johnson, D-Texas; Eliot Engel, D-N.Y; Richard Neal, D-Mass.; and Maxine Waters, D-Calif.