House Panel Probes Need for Administrative Procedure Act Rewrite
The House Judiciary Committee should consider overhauling the Administrative Procedure Act (APA), Rep. Cannon (R-Utah), chmn. of the Subcommittee on Commercial and Administrative Law, said Tues. during a hearing on the law. The measure delineates how the FCC and other agencies are to write regulations and how the courts review agency decisions.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Observing the law’s 1946 passage, Cannon and witnesses remarked on the dramatic changes the world has seen since. They agreed studies are needed of how the APA functions before Congress acts on an update.
“A fundamental question that arises is whether the act is still effective in the 21st Century,” Cannon said, noting that though the law mandates public participation in rulemaking via comments, key decisions on regulations often are made outside that realm. “Surprisingly, little is known about how agencies actually develop these rules,” he said.
“We are today in a different time and different place,” Marshall Breger, a professor at Catholic U. of America Columbus School of Law, said: “In 1946, over 90% of the activities of administrative agencies were adjudications… Now it’s mostly rulemaking,” he said. In 1946 Congress and industry believed in “the power of the regulatory process” to solve problems, but now most are “more skeptical” and “the regulatory process has to prove itself.”
Elements of the APA governing judicial review may need overhaul, Breger said. The courts need guidance, he said.
“Justice [Felix] Frankfurter said ‘Congress has set a mood for the judges to follow in reviewing administrative agency actions,'” he said. “Sixty years later there has been a great deal of judicial experience. It may be appropriate for Congress to revisit that mood and recalibrate the notion of the proper relationship between… the courts and the agencies and similarly the whole problem of deference to agency interpretation of statutes and regulation.”
Bill West of the Bush School of Govt. & Public Service at Texas A&M U., who recently studied agency policy development with the Congressional Research Service, urged more research.
Agencies often devise rules with little industry or public input, with proposed rules nearly completed before they seek comment, West said. The APA may need to be expanded to cover agency policymaking during proposal development.
“If public notice and comment is intended to promote inclusive and transparent participation in the decisionmaking, how inclusive and transparent is participation during proposal development,” West said: “Unlike notice and comment under the APA, participation in the development of proposed rules often does not occur by general invitation. Rather it is informal and occurs at the specific invitation of the agency.”
Ranking Member Watt (D-N.C.) agreed with the chairman on the appropriateness of examining the APA. “The Administrative Procedure Act is as important now as when it was first enacted in 1946,” Watt said. “Our rapidly changing technological landscape requires that we look to see whether the APA requires modernization.”