Health and Human Services Secretary Robert F. Kennedy Jr. on Friday released a policy prohibiting public comments during his department’s rulemaking process, ending more than 50 years of the public’s involvement in crafting his department’s rules.
In the policy statement placed in the Federal Register, Kennedy’s office appeared to argue that rescinding the policy goes back to the original intent of the Administrative Procedure Act (APA).
Although the APA exempts the requirement for public comment on matters “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” there has been a waiver, referred to as the Richardson waiver, on this exemption since 1971, allowing for interested parties to take part in the rulemaking process.
“The policy waiving the statutory exemption for rules relating to public property, loans, grants, benefits, or contracts is contrary to the clear text of the APA and imposes on the Department obligations beyond the maximum procedural requirements specified in the APA,” according to the policy statement from Kennedy’s office.
“Effective immediately, the Richardson Waiver is rescinded and is no longer the policy of the Department,” it added.
The move comes shortly after the Department of Health and Human Services (HHS) postponed a key meeting held by the vaccine committee for the Centers for Disease Control and Prevention, saying at the time that it was delayed to “accommodate public comment in advance of the meeting.” After assuming office, Kennedy had vowed to usher in “radical transparency” at the HHS.
Lawrence O. Gostin, faculty director of O’Neill Institute for National and Global Health Law at the Georgetown University Law Center, said this move by Kennedy was a clear effort to avoid accountability. Gostin said he believes the policy is sure to be litigated, noting that courts have enforced the Richardson waiver in the past.
“My impression of the rule is that that the Secretary knows that much of what he’s done and what he intends to do to radically transform health policy … has been lawful under the Administrative Procedure Act, and he’s trying to insulate himself from accountability,” Gostin said.
Calling it a “dark day for HHS,” Gostin speculated that Kennedy was rescinding public comments in order to quickly “ram through” radical changes to health care, public health and scientific research in the U.S.
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