Lankford Wants to Update the Administrative Procedure Act to Make Government Work for the People

WASHINGTON, DC – Senator James Lankford (R-OK), lead Republican on the Homeland Security and Governmental Affairs Subcommittee on Government Operations and Border Management, today introduced his Regulatory Accountability Act, which is a comprehensive re-write, update, and modernization of the Administrative Procedure Act (APA).

The Administrative Procedure Act was put in place to manage the enormous expansion of the federal government under President Roosevelt, but the government has only expanded, and become even more complicated since then,” said Lankford. “We should modernize and adjust the ways the federal government implements rules and regulations to be sure they work for the people, not against them, and certainly not for some administration’s political agenda. My Regulatory Accountability Act makes sure our regulatory process is more transparent, efficient and functional, rather than increasing red tape and black boxes. While we work to reduce the size and scope of government, let’s make sure government works for Oklahomans and the nation and doesn’t require a daily reading of the Federal Register by businesses and communities.”

BACKGROUND

The APA stipulates the process by which the federal government proposes, publicly announces, and considers public comments for rules and regulations. Over time, the Executive Branch has found ways to abuse or circumvent the lengthy rulemaking process to try to quietly make rules that act like laws without the full regulatory process. Lankford has long fought to make government work harder for the people, not the other way around. On April 6, President Biden issued Executive Order 14094, which significantly reduces the role of the Office of Information and Regulatory Affairs (OIRA) in reviewing federal regulations. Lankford has long argued for a strong OIRA to serve as the neutral check on the runaway Administrative state.

Lankford’s Regulatory Accountability Act:

• Directly counters Biden’s recently issued Executive Order 14094, Modernizing Regulatory Review, by codifying that OIRA shall review regulations costing $100 million or more or that raise novel legal or policy issues. The bill ensures that OIRA’s role is tied to statutory requirements and economic determinations, not political agendas.
• Requires agencies to consider the costs and benefits of a regulation and then adopt the alternative that is the least costly and maximizes the most benefits.
• Increases transparency and public input by requiring agencies issue Advanced Notices of Proposed Rulemaking to solicit the views of the public at the beginning of a rulemaking, not after regulators have already made up their mind on how they will regulate.
• Clarifies that guidance documents are not legally binding and must be published in a single, easily accessible website. For major guidance documents, agencies must identify the costs and benefits as if the guidance document were a rule.
• Updates the “good cause exception” in the APA by requiring that the agency issue a detailed statement explaining the reasons that justify skipping the notice and comment process. For Direct Final Rules, agencies must include an opportunity for public input for at least 30 days before the rule takes effect. For Interim Final Rules, the agency must provide an opportunity for public input for at least 60 days and the interim period may last no longer than 180 days or the agency must either rescind the rule or initiate notice and comment rulemaking.
• For the most costly rules, agencies must establish a retrospective review framework by which the rule will be measured including regulatory objectives and a summary of costs and benefits. The framework must be included in Notice of Proposed Rulemaking along with a plan for gathering data to measure the specified objectives.
• Codifies the role of OIRA by requiring the Administrator to ensure agencies comply with the APA and other applicable laws, which may include centralized review. If the Administrator determines an agency did not follow the applicable procedures, the Administrator must inform the agency and Congress.
• Eliminates the judicial deference cannons and, unless required otherwise by statute, considers all questions of law de novo while only giving the agency interpretation of a rule the weight deserved considering the validity of the agency’s reasoning and consistency of the interpretation with earlier pronouncements.

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