What If They Amended the Administrative Procedure Act and No One Noticed?

Congress made a small addition to the requirements for notice-and-comment rulemaking.

With little attention, let alone fanfare, Congress made a small change to the Administative Procedure Act when it unanimously enacted the Providing Accountability through Transparency Act of 2023 in July of this year. The little bill inserted an additional requirement for notice-and-comment rulemakings in Section 553(b) of the Act. Specifically, it provides that the general notice of proposed rulemaking must include:

the Internet address of a summary of not more than 100 words in length of the proposed rule, in plain language, that shall be posted on the Internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov).

This change is so new (and unnoticed) that it has not yet been incorporated into some commonly used online versions of the U.S. Code (such as LII).

I would assume folks at the White House Office of Information and Regulatory Affairs (OIRA) are aware of the change—the President signed this into law, after all—and will make sure that agencies comply. It will also be interesting to see what a reviewing court does the first time an agency rule is challenged for failing to fulfill this requirement. Remand without vacatur perhaps?

(Hat tip: Jeffrey Lubbers)