[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1818 Reported in Senate (RS)]
<DOC>
Calendar No. 613
114th CONGRESS
2d Session
S. 1818
[Report No. 114-342]
To amend title 5, United States Code, to reform the rule making process
of agencies.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 21, 2015
Mr. Lankford (for himself, Ms. Heitkamp, Ms. Ayotte, and Mrs. Ernst)
introduced the following bill; which was read twice and referred to the
Committee on Homeland Security and Governmental Affairs
September 6, 2016
Reported by Mr. Johnson, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to reform the rule making process
of agencies.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Principled Rulemaking Act
of 2015''.</DELETED>
<DELETED>SEC. 2. DEFINITIONS.</DELETED>
<DELETED> In this Act--</DELETED>
<DELETED> (1) the terms ``agency'', ``rule'', and ``rule
making'' have the meanings given those terms in section 551 of
title 5, United States Code; and</DELETED>
<DELETED> (2) the term ``regulatory action'' means any
substantive action by an agency (normally published in the
Federal Register) that promulgates or is expected to lead to
the promulgation of a final regulation, including notices of
inquiry, advance notices of proposed rule making, and notices
of proposed rule making.</DELETED>
<DELETED>SEC. 3. RULE MAKING CONSIDERATIONS.</DELETED>
<DELETED> Section 553 of title 5, United States Code, is amended by
adding at the end the following:</DELETED>
<DELETED> ``(f) Rule Making Considerations.--</DELETED>
<DELETED> ``(1) In general.--An agency shall only promulgate
a rule under this section that is--</DELETED>
<DELETED> ``(A) required by law;</DELETED>
<DELETED> ``(B) necessary to interpret a law;
or</DELETED>
<DELETED> ``(C) made necessary by compelling public
need, such as a material failure of the private markets
to protect or improve the health and safety of the
public, the environment, or the wellbeing of the people
of the United States.</DELETED>
<DELETED> ``(2) Considerations.--Before promulgating a rule
under this section, an agency shall--</DELETED>
<DELETED> ``(A) identify and assess the significance
of the problem that the agency intends to address with
the rule, including, where applicable, the failures of
private markets or public institutions that warrant new
agency action;</DELETED>
<DELETED> ``(B) consider the legal authority under
which the rule may be proposed, including whether a
rule making is required by statute, and if so, whether
by a specific date, or whether the agency has
discretion to commence a rule making;</DELETED>
<DELETED> ``(C) examine whether existing rules or
other laws--</DELETED>
<DELETED> ``(i) have created or contributed
to the problem identified under subparagraph
(A); and</DELETED>
<DELETED> ``(ii) should be modified to
achieve the intended regulatory objective more
effectively;</DELETED>
<DELETED> ``(D) identify and assess available
alternatives to direct regulation, including by
providing--</DELETED>
<DELETED> ``(i) economic incentives to
encourage the desired behavior, such as user
fees or marketable permits; or</DELETED>
<DELETED> ``(ii) information upon which
choices may be made by the public;</DELETED>
<DELETED> ``(E) consider, to the extent reasonable,
the degree and nature of the risks posed by various
substances or activities within the jurisdiction of the
agency;</DELETED>
<DELETED> ``(F) if after determining that a rule is
the best available method of achieving the regulatory
objective, design the rule in the most cost-effective
manner to achieve the regulatory objective;</DELETED>
<DELETED> ``(G) in carrying out subparagraph (F),
consider--</DELETED>
<DELETED> ``(i) incentives for innovation,
consistency, predictability, flexibility,
distributive impacts, and equity; and</DELETED>
<DELETED> ``(ii) the costs of enforcement
and compliance to the Federal Government,
regulated entities, and the public;</DELETED>
<DELETED> ``(H) assess the costs and the benefits of
the intended rule and, recognizing that some costs and
benefits (including quantifable and qualitative
measures) are difficult to quantify--</DELETED>
<DELETED> ``(i) propose or adopt a rule only
upon a reasoned determination that the benefits
of the intended rule justify the costs of the
rule; and</DELETED>
<DELETED> ``(ii) select approaches that
maximize net benefits, unless a statute
requires another regulatory approach;</DELETED>
<DELETED> ``(I) base decisions on the best
reasonably obtainable scientific, technical, economic,
and other information concerning the need for, and
consequences of, the intended rule;</DELETED>
<DELETED> ``(J) identify and assess alternative
forms of regulation and, to the extent feasible,
specify performance objectives, and not the behavior or
manner of compliance that regulated entities are
required to adopt;</DELETED>
<DELETED> ``(K) seek views of appropriate State,
local, and tribal officials before imposing regulatory
requirements that may significantly or uniquely affect
those governmental entities;</DELETED>
<DELETED> ``(L) assess the effects of rules on
State, local, and tribal governments, including
specifically the availability of resources to carry out
those mandates, and seek to minimize those burdens that
uniquely or significantly affect those governmental
entities, consistent with achieving the regulatory
objective of the agency;</DELETED>
<DELETED> ``(M) as appropriate, seek to harmonize
agency action with related State, local, and tribal
regulatory and other governmental functions;</DELETED>
<DELETED> ``(N) avoid the promulgation of a rule
that is inconsistent, incompatible, or duplicative with
other rules of the agency or those of other
agencies;</DELETED>
<DELETED> ``(O) tailor the rule--</DELETED>
<DELETED> ``(i) to impose the least burden
on society, including individuals, businesses
of differing sizes, and other entities,
including small communities and governmental
entities; and</DELETED>
<DELETED> ``(ii) in a manner that is
consistent with obtaining the regulatory
objective, taking into account, and to the
extent practicable, the costs of cumulative
rules; and</DELETED>
<DELETED> ``(P) in order to minimize the potential
for uncertainty and litigation arising from such
uncertainty, draft the rule in a manner that is simple
and easy to understand.''.</DELETED>
<DELETED>SEC. 4. PUBLIC PARTICIPATION.</DELETED>
<DELETED> (a) In General.--To promote an open exchange with the
public, each agency shall, consistent with section 553 of title 5,
United States Code, and other applicable requirements, issue rules
through a process that involves public participation, including--
</DELETED>
<DELETED> (1) providing the public with an opportunity to
participate in the regulatory process; and</DELETED>
<DELETED> (2) to the extent feasible--</DELETED>
<DELETED> (A) affording the public a meaningful
opportunity to submit comments through the Internet on
any proposed rule for a period of not less than 60
days;</DELETED>
<DELETED> (B) providing, for both proposed and final
rules, timely online access to the rule making docket
of the agency on an easily accessible Federal website,
including relevant scientific and technical findings,
in an open, searchable, and downloadable format;
and</DELETED>
<DELETED> (C) providing an opportunity for public
comment on all pertinent parts of the proposed rule
making docket of the agency, including relevant
scientific and technical findings.</DELETED>
<DELETED> (b) Comments From Affected Parties.--Before issuing a
notice of proposed rule making, each agency shall, when feasible and
appropriate, seek the views of those who are likely to be affected by
the rule, including those who are likely to benefit from and those who
are potentially subject to the rule.</DELETED>
<DELETED>SEC. 5. INTEGRATION AND INNOVATION.</DELETED>
<DELETED> In developing regulatory actions and identifying
appropriate approaches, each agency shall--</DELETED>
<DELETED> (1) attempt to promote coordination,
simplification, and harmonization; and</DELETED>
<DELETED> (2) seek to identify, as appropriate, means to
achieve regulatory goals that are designed to promote
innovation.</DELETED>
<DELETED>SEC. 6. FLEXIBLE APPROACHES.</DELETED>
<DELETED> Where relevant, feasible, and consistent with regulatory
objectives, and to the extent permitted by law, each agency shall
identify and consider regulatory approaches that--</DELETED>
<DELETED> (1) reduce burdens and maintain flexibility and
freedom of choice for the public;</DELETED>
<DELETED> (2) include warnings, appropriate default rules,
and disclosure requirements; and</DELETED>
<DELETED> (3) provide information to the public in a form
that is clear and intelligible.</DELETED>
<DELETED>SEC. 7. SCIENCE.</DELETED>
<DELETED> Each agency shall ensure the objectivity of any scientific
and technological information and processes used to support each
regulatory action of the agency.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Principled Rulemaking Act of 2015''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the terms ``agency'', ``rule'', and ``rule making''
have the meanings given those terms in section 551 of title 5,
United States Code; and
(2) the term ``regulatory action''--
(A) means any substantive action by an agency
(normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation
of a final regulation, including notices of inquiry,
advance notices of proposed rule making, and notices of
proposed rule making; and
(B) does not include an action by an agency
involving--
(i) a military or foreign affairs function
of the United States; or
(ii) a matter relating to agency management
or personnel or to public property, loans,
grants, benefits, or contracts.
SEC. 3. RULE MAKING CONSIDERATIONS.
Section 553 of title 5, United States Code, is amended by adding at
the end the following:
``(f) Rule Making Considerations.--
``(1) In general.--An agency shall only promulgate a rule
under this section that is--
``(A) required by law;
``(B) necessary to interpret a law; or
``(C) as permitted by law, made necessary by public
need, to protect or improve the health and safety of
the public, the environment, or the wellbeing of the
people of the United States.
``(2) Considerations.--Before promulgating a rule under
this section, an agency shall--
``(A) identify and assess the significance of the
problem that the agency intends to address with the
rule;
``(B) consider the legal authority under which the
rule may be proposed, including whether a rule making
is required by statute, and if so, whether by a
specific date, or whether the agency has discretion to
commence a rule making;
``(C) where practicable, examine whether existing
rules or other laws, including the cumulative effect of
existing rules or other laws--
``(i) have created or contributed to the
problem identified under subparagraph (A); and
``(ii) should be modified to achieve the
intended regulatory objective more effectively;
``(D) as permitted by statute, identify and assess
available alternatives to direct regulation, including
by providing--
``(i) economic incentives to encourage the
desired behavior, such as user fees or
marketable permits; or
``(ii) information to the public in a form
that is clear and intelligible;
``(E) consider, to the extent reasonable, the
degree and nature of the risks posed by various
substances or activities within the jurisdiction of the
agency;
``(F) after determining that a rule is the best
available method of achieving the regulatory
objective--
``(i) assess the costs and benefits of the
intended rule and, recognizing that some costs
and benefits (including quantifiable and
qualitative measures) are difficult to
quantify, design the rule to maximize net
benefits while justifying the costs, unless a
statute requires another regulatory approach;
and
``(ii) as permitted by statute--
``(I) consider, when developing the
rule--
``(aa) incentives for
innovation, consistency,
predictability, flexibility,
distributive impacts, and
equity on the regulated
entities and the public; and
``(bb) the cost of
enforcement and compliance to
the Federal Government,
regulated entities, and the
public; and
``(II) select approaches that
reduce burdens and maintain flexibility
and freedom of choice for regulated
entities and the public;
``(G) base decisions on the best reasonably
obtainable and publically accessible scientific,
technical, economic, and other information concerning
the need for, and consequences of, the intended rule;
``(H) identify and assess alternative forms of
regulation and, to the extent feasible, specify
performance objectives, and not the behavior or manner
of compliance that regulated entities are required to
adopt;
``(I) seek views of appropriate State, local, and
tribal officials before imposing regulatory
requirements that may significantly or uniquely affect
those governmental entities;
``(J) assess the effects of rules on State, local,
and tribal governments and the private sector,
including specifically the availability of resources to
carry out those mandates, and seek to minimize those
burdens that uniquely or significantly affect those
governmental entities, consistent with achieving the
regulatory objective of the agency;
``(K) as appropriate, seek to harmonize agency
action with related State, local, and tribal regulatory
and other governmental functions;
``(L) avoid the promulgation of a rule that is
inconsistent, incompatible, or duplicative with other
rules of the agency or those of other agencies;
``(M) tailor the rule--
``(i) to maximize benefits while imposing
the least possible burden on society, including
individuals, businesses of differing sizes, and
other entities, including small communities and
governmental entities; and
``(ii) in a manner that is consistent with
obtaining the regulatory objective, taking into
account, and to the greatest extent
practicable, the costs of cumulative rules; and
``(N) in order to minimize the potential for
uncertainty and litigation arising from such
uncertainty--
``(i) draft the rule in a manner that is
simple and easy to understand; and
``(ii) include information to assist with
compliance with the rule, such as warnings,
appropriate default rules, and disclosure
requirements.
``(3) Exceptions.--This subsection shall not apply--
``(A) to interpretative rules, general statements
of policy, or rules of agency organization, procedures,
or practice;
``(B) if the Administrator of the Office of
Information and Regulatory Affairs waives the
requirements of this subsection for good cause; or
``(C) if the statute on which a proposed rule is
based specifically exempts a rule from any of the
procedures under this subsection.
``(4) Judicial review.--
``(A) In general.--Compliance by an agency with the
provisions of this subsection shall be subject to
judicial review only--
``(i) in connection with review of final
agency action; and
``(ii) in accordance with this paragraph.
``(B) Determinations by administrator.--Any
determination, action, or inaction of the Administrator
of the Office of Information and Regulatory Affairs
under this subsection shall not be subject to judicial
review.
``(C) Review with final rule.--Compliance by an
agency with the provisions of this subsection shall
only be subject to judicial review in connection with
review of the final rule to which an analysis,
assessment, or other consideration under paragraph (2)
applies.
``(D) Rule making record.--Each consideration by an
agency under paragraph (2) shall be--
``(i) included as part of the rule making
record for the rule; and
``(ii) to the extent relevant, considered
by a court only in determining whether, under
the statute granting the rule making authority
to the agency, the final rule is--
``(I) arbitrary, capricious, or an
abuse of discretion; or
``(II) unsupported by substantial
evidence where the standard is
otherwise provided by law.
``(E) Set aside.--If an agency fails to comply with
the requirements under paragraph (2), a court may,
giving due account to prejudicial error, hold unlawful
and set aside the agency action.''.
SEC. 4. PUBLIC PARTICIPATION.
(a) In General.--To promote an open exchange with the public, each
agency shall, consistent with section 553 of title 5, United States
Code, and other applicable requirements, issue rules through a process
that involves public participation, including--
(1) providing the public with a meaningful opportunity to
participate in the regulatory process; and
(2) to the greatest extent feasible--
(A) affording the public a meaningful opportunity
to submit comments through the Internet on any proposed
rule for a period of not less than 60 days;
(B) providing, for both proposed and final rules,
timely online access to the rule making docket of the
agency on an easily accessible Federal website,
including relevant scientific and technical findings,
in an open, searchable, and downloadable format; and
(C) providing an opportunity for public comment on
all pertinent parts of the proposed rule making docket
of the agency, including relevant scientific and
technical findings.
(b) Comments From Affected Parties.--Before issuing a notice of
proposed rule making, each agency shall, when feasible and appropriate,
seek the views of those who are likely to be affected by the rule,
including those who are likely to benefit from and those who are
potentially subject to the rule.
SEC. 5. INTEGRATION AND INNOVATION.
In developing regulatory actions and identifying appropriate
approaches, each agency shall--
(1) attempt to promote coordination, simplification, and
harmonization; and
(2) seek to identify, as appropriate, means to achieve
regulatory goals that are designed to promote innovation.
SEC. 6. SCIENCE.
When issuing a rule under section 553, each agency shall ensure
that any scientific and technological information and processes,
including models, used to support any regulatory action of the agency
is the best available, by taking into consideration whether the
scientific and technological information and processes used are
objective, peer-reviewed, reproducible, and publically available.
Calendar No. 613
114th CONGRESS
2d Session
S. 1818
[Report No. 114-342]
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to reform the rule making process
of agencies.
_______________________________________________________________________
September 6, 2016
Reported with an amendment