The Regulatory Accountability Act and the Future of APA Revision

This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that would provide for (1) trial-type hearings on certain issues in proceedings to promulgate especially consequential rules; (2) mandatory findings and analyses in all notice-and-comment rulemakings; (3) judicially enforced requirements for cost-benefit analyses in major rulemakings; (4) curtailment of Auer deference; and (5) substantial evidence review of some major rules. The article examines some of the policy and drafting problems with these latter provisions. It concludes with some reflections on reasons why the RAA proponents headed in unproductive directions and how the process of APA revision could be improved in the future