DOJ Report Backs Revamping Regulatory Procedures Law

Signals agencies have too much power, not enough oversight, accountability

The Department of Justice has released a report recommending an overhaul of the 1946 Administrative Procedure Act (APA) to better address the size and power of regulatory agencies, power that courts have enlarged, DOJ points out.  

That overhaul would have to come from Congress.

The Trump Administration has made the “eliminate two regulations for every new regulation” a centerpiece of its deregulatory philosophy. 

APA is the law that provides the procedural framework for regulatory decisionmaking, including the FCC. When an FCC rule is challenged in court as “arbitrary and capricious,” that is invoking the APA’s prohibition on such decisionmaking. 

The report, Modernizing the Administrative Procedure Act, makes it clear DOJ thinks the APA is past due for change.  

Deputy Attorney General Jeffrey A. Rosen says in the forward to the report that reform is needed “to better service the modern regulatory state.”   

Among the ideas Rosen offers up as possible reforms are from the Regulatory Accountability Act introduced in the last Congress. Those” best practices” include 1) requiring agencies to “fully disclose data and other information used in rulemakings”; 2) requiring minimum comment periods for “major rules”; codify the cost-benefit analysis that have been done so far by executive orders–which don’t apply to independent agencies like the FCC and FTC; 4) a mandated consideration of a “reasonable number of alternatives to an agency’s preferred course of action,” and more. 

Importantly, the Act would extend those to independent agencies not covered by the relevant executive orders, which Rosen said “multiple panelists” recommended.  

The Act would also provide more rigorous procedures for “high impact” and “major” rules. The former is defined as “rules likely to have an economic impact of $1 billion or more, and “major” rules are those as ones “likely to have an economic impact of $100 million or more or to significantly impact the economy in other ways.” He said those are the rules that “can shape the fate of entire industries.” 

Related: DOJ Looking at APA Changes

Those are rules that the Act would require get rigorous cost-benefit analysis and of those aforementioned “reasonable alternatives.” It would also require public hearings for those rules.  

The report is the work product of a Dec. 6, 2019, DOJ summit appropriately entitled  the Modernizing the Administrative Procedure Act.