Scholars Debate Whether the Administrative Procedure Act Provides Sufficient Transparency

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Scholars argue that agencies do not weigh sufficiently comments they receive under the APA.

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On Tuesday, the House Judiciary Subcommittee on Administrative and Commercial Law conducted a hearing on the future of the Administrative Procedure Act (APA). The APA governs how agencies propose and establish regulations.  Tuesday’s hearing explored ways to make agency rulemaking more effective.

The hearing focused on “Raising the Agency’s Grades,” a reference to the Regulatory Report Card of the Mercatus Center at George Mason University. The report card project purports to provide a “review of the quality and use of regulatory analysis of proposed economically significant regulations.” Two contributors to the Regulatory Report Card testified, as did Professor Robert Glicksman of the George Washington University School of Law and the Center for Progressive Reform.

One of the Mercatus members who testified, Dr. Richard Williams, argued that the initial stages of agency rulemaking were insufficiently transparent, contrary to the intent of the APA. He stressed that “analysis is generally begun after the decision on how to regulate has been announced.” This leads, he argued, to an opaque system in which agencies can easily dismiss APA-mandated comments.   Williams favored adjusting “the incentives so that agencies regulate only when there is a systemic, significant problem that will not solve itself and needs to be addressed at the federal level,” and only after the agency conducts a rigorous cost-benefit analysis.

Professor Glicksman challenged the premise of the Regulatory Report Card and argued that cost-benefit analysis is often a flawed technique.  He stated that the real problem in the regulatory landscape is a “destructive convergence of funding shortfalls, demonizing political attacks, and outmoded legal authority.” He argued that adding cost-benefit analysis requirements were “excessive” and “unhelpful,” and they would likely result only in “longer delays in much-needed regulations.”  Glickman suggested that the best way to raise agencies’ grades would be to provide them with more resources to do their jobs.