Professor Peter Strauss Testifies on Possible Overhaul of Federal Rulemaking

Public Affairs, 212-854-2650, [email protected]
New York, March 4, 2011—As Congress ponders how it can overhaul Executive Branch regulations, there is much that can be done to make the rulemaking process more open and efficient, Professor Peter Strauss told a House committee.
Strauss, the Betts Professor of Law at Columbia Law School and a leading authority on administrative law, said reconsideration of rulemaking procedures is warranted to “permit effective sifting of the wheat from the chaff.”
Strauss submitted testimony and spoke Feb. 28 to a House Judiciary subcommittee that was examining the Administrative Procedure Act on its 65th anniversary. The act governs how federal administrative agencies may propose and establish regulations.
Republicans, who control the House, have zeroed in on the APA to examine whether it stands in the way of job creation and whether revamping it can reduce burdens on businesses.
Strauss did not directly address those goals. Rather, he laid out four priorities linked to the APA, including:
  • Ensuring that agencies know they must give the public access to technical data to facilitate more thorough and informed comments about proposed regulations.
  • A requirement that all relevant documents, including oral conversations, are placed into the public record. That requirement is currently limited to a provision in the Clean Air Act.
  • Streamlining the many requirements for impact analysis “in order to permit needed regulation to proceed efficiently.”
  • "Improved public awareness of rulemaking stages prior to publication of a notice of proposed rulemaking, since postponing public engagement to that point risks converting their part of the process into a "form of Kabuki theater."
“Sitting at my computer at home, I can now access in seconds government interpretations and other materials that I could have obtained two decades ago, if at all, only by hiring at considerable expense,” Strauss wrote. “As you consider the APA at 65, adapting it to these remarkable changes strikes me as an importance of the first order.”
The full text of Strauss’ testimony is available here.
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