June 04, 2020
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Maine attorney general has rulemaking double standard amid coronavirus crisis

Linda Coan O'Kresik | BDN
Linda Coan O'Kresik | BDN
Maine Attorney General Aaron Frey at the Penobscot Judicial Center in Bangor.

Maine Attorney General Aaron Frey has been busy approving regulatory changes unrelated to the COVID-19 crisis and then turning around to attack the Trump Administration for doing the same thing.

Frey signed onto a March 31 letter with 20 liberal-leaning state attorneys general, urging the Trump administration to freeze most federal rulemaking due to the coronavirus crisis.

Governments must balance crisis response with ongoing operations. A debate about whether non-emergency rules are appropriate during the crisis can wait for another time.

The focus here is that Attorney General Frey appears to be comfortable stopping, for example, the food stamp program at the federal level from improving its job training program for childless adults, while allowing the Mills administration to roll back state-level food stamp fraud investigation and payback requirements.

Frey asked the federal government and its diverse agencies to meet a standard — only conducting COVID-crisis-related rulemaking — that he and the Mills administration are not meeting.

Maine’s Administrative Procedures Act establishes the regulatory process, in which the attorney general plays a significant role to ensure regulations fall within the letter of the law.

Once drafted by an agency, proposed rules are posted for public comment. The Secretary of State requires the Office of the Attorney General to sign off on new rules or changes to existing rules prior to posting.

Next, agencies hold public hearings and may incorporate feedback into the final rules they adopt. The statute requires the attorney general to approve the final version. Gov. Janet Mills further increased the attorney general’s regulatory role in her March 2019 executive order, mandating a “legal pre-review” by his office.

Since Mills declared a State of Civil Emergency on March 15, the Office of the Attorney General has signed off on the posting of several Mills administration rules completely unrelated to either the coronavirus crisis or the related economic collapse.

These new regulations, some posted after Frey’s letter, include rules for the Rural Manufacturing and Industrial Site Redevelopment Program, the State Board of Education’s Professional Standards Board, the Logging and Forestry Education Grant Program, the food stamp program and moose hunting permits.

In this same period the AG’s Office also approved final rules, including: the Public Utilities Commission’s Small Generator Interconnection Procedures, the Center for Disease Control’s rules for “family planning” funding, the Procedures Governing Administration of the Adaptive Equipment Loan Program Fund Board, Occupational Safety and Health Standards for Construction Industry Employment in the Public Sector and the Department of Transportation’s new Autonomous Vehicle Pilot Program Rules.

However, Maine’s attorney general wants the Trump administration to be held to a different standard.

Frey and his fellow attorneys general write: “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, and daily life in our communities has been upended by the need to maintain social distancing.”

Daily life has been upended, and we face difficult challenges. However, the AG’s Office and state agencies have not been “wholly” engaged in fighting the COVID crisis. They have proposed new regulations — many unrelated to the crisis.

Frey and his co-signers also asked the federal government to re-open or extend public comment on proposed regulations for consideration of current public health and economic conditions. We hope he makes that same recommendation to the Mills administration.

The federal government should be reminded that this emergency prevents state and local governments, businesses and individuals from fully engaging in the regulatory process. The same can be said of our state.

Mills has banned all in-person public hearings. Although people can submit public comments in writing or participate by teleconference in certain hearings, rulemakers should meet face-to-face and listen to those Mainers subject to their regulations.

We hope Maine’s attorney general will be as concerned about ensuring that the Mills administration’s rulemaking process is quickly re-opened to full public participation and scrutiny as he is about doing so for the Trump administration.

It appears Frey looked to score political points against the Trump administration, in the midst of a crisis, while ignoring the same guidance for his own office and the Mills administration.

It reminds us of the old phrase: Do as I say, not as I do.

Julie Dumont Rabinowitz, director of policy and communication for Maine People Before Politics, was a former press secretary and senior policy advisor to Gov. Paul LePage.

 


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