Originally published in the Yale Journal on Regulation
In 2017, during the 115th Congress, a bipartisan group of Senators introduced the Regulatory Accountability Act. This was a serious effort to significantly update the procedural provisions of the APA for the first time since its enactment in 1946. Among other reforms, the 2017 RAA would have:
- required agencies to maintain a public rulemaking record;
- mandated disclosure of all scientific and technical information employed by the agency;
- established minimum public comment periods of 30 days for regular rules and 60 days for “major” rules (with estimated impacts of $100 million or more);
- provided a framework to govern the use of interim final rulemaking;
- placed controls on “midnight” rulemaking that are rushed out the door during a president’s lame duck; and,
- codified procedures for retrospective review of rules.
The authors of the 2017 RAA modeled many of these measures off recommendations made by the American Bar Association. Crucially, the bill’s requirements applied evenly to regulation and deregulation. Proponents, such as Professor Chris Walker, described it as “common-sense, bipartisan legislation.”
Critics, on the other hand, focused on a single provision. For example, Professor Richard Pierce described the 2017 RAA as “a good effort, with one glaring flaw.” That “flaw” was a requirement for agencies to employ formal rulemaking procedures for “genuinely disputed” matters in any “major” rulemaking expected to have an annual effect on the economy of $100 million or more. Other esteemed scholars similarly concentrated their criticisms on this provision, arguing that formal rulemakings are so time-consuming and process-heavy as to unduly stifle regulatory output.