Administrative Procedure Act: ABA Admin Law Section Comments on H.R. 3010

On October 25, the House Judiciary Committee held a hearing on H.R. 3010, the "Regulatory Accountability Act of 2011." Witnesses scheduled at the hearing included C. Boyden Gray, Boyden Gray & Associates (and former Section Chair), Christopher C. DeMuth of the American Enterprise Institute for Public Policy Research, Arnold Baker, owner of Baker Ready-Mix Building Materials, and Sidney Shapiro, University Distinguished Chair in Law at Wake Forest University School of Law.

The Administrative Law Section submitted extensive comments concerning the bill to the Committee. An executive summary of the Section's comments follows.

"The Regulatory Accountability Act of 2011, H.R. 3010, would be a sweeping and consequential revision to the Administrative Procedure Act, particularly with regard to the process of rulemaking. The bill is unusually ambitious and crammed with details that are impossible to summarize. Among its provisions are many that the Section endorses, many it would modify, and many that it opposes.

"With regard to the first category, we support provisions that would

• require agencies to maintain a rulemaking record,
• require agencies to disclose data, studies, and other information underlying a proposed rule,
• recognize the consultative function of the Office of Information and Regulatory Affairs (OIRA),
• provide for agencies to consult OIRA when issuing major guidance, and
• extend these OIRA functions to the independent agencies.

"With regard to the second category, we are sympathetic toward, but suggest modifications to, the bill’s provisions that would 

• add an Advance Notice of Proposed Rulemaking step to certain rulemakings,
• address the problem of agencies’ issuance of “interim” rules that are never superseded by regularly adopted rules,
• provide some centralized oversight of agency issuance of and reliance on guidance documents.

"On the other hand, the Section has serious concerns about

• the bill’s lengthy list of “rulemaking considerations” that agencies would be required to take into account at each stage of the rulemaking process,
• use of the long-discredited “formal rulemaking” for some rules,
• providing for judicial review of agencies’ compliance with OIRA’s guidelines, and
• effectively rewriting the substantive provisions regarding standard-setting in the enabling legislation of numerous agencies through a cost-focused “supermandate.” (We take no position on the substantive question of the appropriate role of costs in setting standards; we only object to resolving that question in a single, across-the-board statute that would turn the APA into the “Administrative Substance Act.”) 

"In general, we think many of the new steps the bill would require for rulemaking are, in numerous particular cases, valuable and appropriate. However, to impose these requirements automatically and across the board will, we fear, further ossify the rulemaking process with little offsetting benefits in the form of better rules."