Repost from JREG Notice and Comment. New ABA Administrative Law Section Resolution on Improving the APA

by Connor Raso. Original source: JREG Notice and Comment blog


The ABA’s Section of Administrative Law and Regulatory Practice recently approved a report and resolution on improving the APA’s rulemaking provisions. The Section believes that while the basic chassis of the APA has been shown to be fundamentally sound, a variety of updates deserve serious consideration.

The resolution proposes reforms to modernize the Act that are widely supported within (and outside of) the Section. These reforms are intended to help enhance public participation in the rulemaking process and to provide clearer direction to agencies. Some codify case law or executive orders and many of them build on prior recommendations of the ABA or Administrative Conference of the United States.

The resolution urges Congress to amend the APA to:

  1. codify the requirement that an agency fully disclose data and other information used in rulemaking;
  2. codify the requirement that agencies develop a rulemaking record and a public docket for each rulemaking;
  3. establish a minimum comment period of 60 days for “major” rules, subject to an exemption for good cause;
  4. tighten and clarify several outdated definitions;
  5. authorize new presidential administrations to delay the effective date of rules finalized at the end of the prior administration;
  6. promote retrospective review of major rules;
  7. codify some provisions of the Unified Regulatory Agenda;
  8. repeal or narrow several outdated exemptions from the notice-and-comment process; and
  9. require agencies to seek post-promulgation comments on some rules issued without notice and comment. The resolution also encourages agencies to experiment with “reply comment” processes.

In case you’re interested in more, read the full resolution on Notice&Comment blog.