At the ABA’s Mid-Year Meeting on February 8, the House of Delegates approved a list of recommended changes to the Administrative Procedure Act (APA) submitted by the Section of Administrative Procedure & Regulatory Practice. This was an important development for the Section because of the centrality of the APA to what we do. It was important as a matter of ABA policy, as well, as the House has not considered proposed changes to the APA in almost a quarter century. E.g. ABA Resolution 1993AM_120C. The proposals thus restore the ABA to its historic posture of seeking to improve the regulatory process. See, e.g., “ABA Proposals For Amendments To The Administrative Procedure Act”, 4 Admin.L.Rev. 371 (Fall 1972). Finally, but most important, the recommendations could be influential in Congressional deliberations over amendments to the APA – especially as most of the ABA’s recommendations are embodied in, or similar to, provisions of pending bills.

The APA has been in effect since 1946. The rulemaking process has evolved in many ways not anticipated then, driven both by innovations in administrative practice and by a burgeoning body of case law. The Section’s Council concluded that a variety of updates to the APA’s rulemaking provisions were thus appropriate. About half of the recommended changes are best practices that are already widely observed but warrant codification to ensure that they are followed uniformly. Several of these proposals have been ABA policy for decades. The other half of the recommended changes would be genuine departures from current practice. Nevertheless, a broad consensus exists within the Section that these changes would improve the rulemaking process without unduly burdening the regulatory missions of agencies. Many of these are consistent with recent recommendations of the Administrative Conference of the United States (ACUS). Finally, the House approved a related recommendation encouraging the use of “reply comment” processes in rulemaking.

Some proponents of APA reform will find the ABA’s new policies overly cautious or qualified. The set of recommended improvements is not exhaustive nor exclusive. The very notion of amending the APA is still controversial in many quarters, however, and the ABA’s endorsement of the idea should help promote consensus in and outside of Congress. Enactment of the ABA’s recommendations would help produce a more up-to-date APA and a more effective rulemaking system.

Following is the text of the approved recommendation:

RESOLVED, That the American Bar Association urges Congress to amend the rulemaking provisions of the Administrative Procedure Act (“APA”). Specifically, Congress should:

1. Codify the requirement that an agency fully disclose data, studies, and other information upon which it proposes to rely in connection with a rulemaking, including factual material that is critical to the rule that becomes available to the agency after the comment period has closed and on which the agency proposes to rely;

2. Provide for the systematic development by the agency in each rulemaking of a rulemaking record as a basis for agency factual determinations and a record for judicial review. The record should include any material that the agency considered during the rulemaking, in addition to materials required by law to be included in the record, as well as all comments and materials submitted to the agency during the comment period. The record should be accessible to the public via an online docket, with limited exceptions allowed, such as for privileged, copyrighted, or sensitive material;

3. Establish a minimum comment period of 60 days for “major” rules as defined by the Congressional Review Act, subject to an exemption for good cause;

4. Clarify the definition of “rule” by deleting the phrases “or particular” and “and future effect”; update the term “interpretative rules” to “interpretive rules”; and substitute “rulemaking” for “rule making” throughout the Act;

5. Authorize a new presidential administration to (i) delay the effective date of rules finalized but not yet effective at the end of the prior administration while the new administration examines the merits of those rules, and (ii) allow the public to be given the opportunity to comment on whether such rules should be amended, rescinded or further delayed;

6. Promote retrospective review by requiring agencies:

a. When promulgating a major rule, to publish a plan (which would not be subject to judicial review) for assessing experience under the rule that describes (i) information the agency believes will enable it to assess the effectiveness of the rule in accomplishing its objectives, potentially in conjunction with other rules or other program activities, and (ii) how the agency intends to compile such information over time;

b. On a continuing basis, to invite interested persons to submit, by electronic means, suggestions for rules that warrant review and possible modification or repeal;

7. Add provisions related to the Unified Regulatory Agenda that would require each participating agency to (i) maintain a website that contains its regulatory agenda, (ii) update its agenda in real time to reflect concrete actions taken with respect to rules (such as initiation, issuance or withdrawal of a rule or change of contact person), (iii) explain how all rules were resolved rather than removing rules without explanation, (iv) list all active rulemakings, and (v) make reasonable efforts to accurately classify all agenda items. All agencies with rulemaking plans for a given year should also participate in the annual Regulatory Plan published in the spring Unified Agenda. These provisions should not be subject to judicial review;

8. Repeal the exemptions from the notice-and-comment process for “public . . . loans, grants [and] benefits” and narrow the exemptions for “public property [and] contracts” and for “military or foreign affairs functions”; and

9. Require that when an agency promulgates a final rule without notice–and-comment procedure on the basis that such procedure is impracticable or contrary to the public interest, it (i) invite the public to submit post-promulgation comments and (ii) set a target date by which it expects to adopt a successor rule after consideration of the comments received; provided that:

a. If the agency fails to replace the interim final rule with a successor rule by the target date, it should explain its failure to do so and set a new target date;

b. The adequacy of the agency’s compliance with the foregoing obligationwould not be subject to judicial review, but existing judicial remedies for undue delay in rulemaking would be unaffected; and

c. The preamble and rulemaking record accompanying the successor rule should support the lawfulness of the rule as a whole, rather than only the differences between the interim final rule and the successor rule.

FURTHER RESOLVED, That the American Bar Association recommends that federal agencies experiment with reply comment processes in rulemaking, such as by (a) providing in advance for a specific period for reply comments; (b) re-opening the comment period for the purpose of soliciting reply comments; or (c) permitting a reply only from a commenter who demonstrates a particular justification for that opportunity, such as a specific interest in responding to specified comments that were filed at or near the end of the regular comment period.

A link to the ABA resolution and accompanying report is available at http://www.americanbar.org/news/reporter_resources/midyear-meeting-2016/house-of-delegates-resolutions/106b.html

*Jamie Conrad is the Chair of the Legislation Committee of the ABA Section of Administrative Law & Regulatory Policy