U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–010 

" ! SENATE 

114TH CONGRESS

2d Session 

REPORT

2016

114–342 

Calendar No. 613 

PRINCIPLED RULEMAKING ACT OF 2015 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TOGETHER WITH

ADDITIONAL VIEWS 

TO ACCOMPANY

S. 1818 

TO AMEND TITLE 5, UNITED STATES CODE, TO REFORM THE 

RULEMAKING PROCESS OF AGENCIES 

SEPTEMBER 6, 2016.—Ordered to be printed 


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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

SATYA P. THALLAM, Chief Economist 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

MARY BETH SCHULTZ, Minority Chief Counsel 

KATHERINE C. SYBENGA, Minority Chief Counsel for Governmental Affairs 

LAURA W. KILBRIDE, Chief Clerk 


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Calendar No. 613 

114TH CONGRESS SENATE REPORT " ! 2d Session 114–342 

PRINCIPLED RULEMAKING ACT OF 2015 

SEPTEMBER 6, 2016.—Ordered to be printed 

Mr. JOHNSON, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 1818] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 1818) to amend title 5, United 

States Code, to reform the rulemaking process of agencies, having 

considered the same, reports favorably thereon with an amendment 

and recommends that the bill, as amended, do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 4 

IV. Section-by-Section Analysis .......................................................................... 5 

V. Evaluation of Regulatory Impact .................................................................. 6 

VI. Congressional Budget Office Cost Estimate ................................................ 7 

VII. Additional Views ............................................................................................ 8 

VIII. Changes in Existing Law Made by the Bill, as Reported ........................... 13 

I. PURPOSE AND SUMMARY

S. 1818, the Principled Rulemaking Act of 2015, seeks to improve 

the rulemaking process of Federal agencies, to increase transparency, and to ensure that all regulatory agencies complete a 

thorough regulatory impact analysis before issuing regulations. S. 

1818 codifies the regulatory principles and requirements found in 

Executive Order 12866, section 1, and Executive Order 13563, secVerDate Sep 11 2014 02:49 Sep 13, 2016 Jkt 059010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR342.XXX SR342

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1 Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993). Subsequently, President George 

W. Bush did not amend or rescind this executive order and continued to operate under its rubric. Executive Order 13563, issued by President Obama, reads in part: ‘‘This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.’’ Infra., note 4. 2 Id. 3 Id. 4 Id. 5 Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011). 

6 Id. 7 Peter Raven-Hansen, Making Agencies Follow Orders: Judicial Review of Agency Violations 

of Executive Order 12,291, 1983 Duke L. Rev. 285, 330 (1982). 

tions 2 through 5, which have been endorsed by both Republican 

and Democratic administrations. The requirements would apply 

equally to all regulatory agencies, including independent regulatory 

agencies, and would be judicially enforceable. 

II. BACKGROUND AND THE NEED FOR LEGISLATION

Issued in 1993 by President Bill Clinton, Executive Order 12866 

has guided agency rulemaking for more than 20 years and has 

been reaffirmed by both Presidents George W. Bush and Barack 

Obama.1 Broadly, this executive order began ‘‘a program to reform 

and make more efficient the regulatory system.’’ 2 In particular, 

Section 1 of the executive order establishes necessary conditions for 

agencies to pursue new regulations as well as criteria by which 

new regulations should be developed and analyzed.3 Specifically, 

these provisions include (but are not limited to): identification of 

the problem to which regulation is a proposed solution, including 

any market failure where it may exist; examination of extant regulations that may be contributory to the identified problem; consideration of alternatives to regulation as a solution; design of ‘‘regulations in the most cost-effective manner’’; conducting benefit-cost 

analysis of the rule, including both quantitative and qualitative 

measurements; use of best available science and information; gathering of input from affected State, local, and tribal entities; and 

clear and understandable drafting of rules.4

In 2011, President Obama issued Executive Order 13563 which 

was ‘‘supplemental to and reaffirm[ed] the principles . . . established in Executive Order 12866.’’ 5 In addition to restating many 

of the foundational principles for when and how to pursue a rulemaking, the new executive order specifies the use of additional considerations in the rulemaking process, including Public Participation (‘‘regulations shall be based . . . on the open exchange of information and perspectives’’); Integration and Innovation (‘‘[g]reater 

coordination across agencies . . . reducing costs and simplifying 

and harmonizing rules’’); Flexible Approaches (‘‘identify and consider regulatory approaches that reduce burdens and maintain 

flexibility and freedom of choice’’); and Science (‘‘ensure the objectivity of any scientific and technological information and processes 

used’’).6

Despite the longstanding nature of the rulemaking principles 

outlined in the aforementioned executive orders, there are two 

structural limitations to relying solely on executive orders to guide 

agency rulemaking. 

The first is that despite a ‘‘usual presumption of reviewability’’ 7

for executive orders, both executive orders include (nearly identical) 


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8 In President Clinton’s 1993 executive order, this language reads, in part: the order ‘‘does not 

create any right or benefit, substantive or procedural, enforceable at law or equity by a party 

against the United States. . . .’’ Supra, note 1. 9Gov’t Accountability Office, GAO–14–714, Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could be More 

Transparent 18 (2014). 10 Exec. Order No. 13,579, 76 Fed. Reg. 41,587 (Jul. 11, 2011). 11Supra, note 1. 12Supra, note 8, Fig 2. 13 Curtis Copeland, Economic Analysis and Independent Regulatory Agencies, Report for the 

Administrative Conference of the United States 87–88 (2013). 

language specifically precluding judicial review.8 This creates a situation in which agencies cannot be challenged in court when failing to comply with provisions of prevailing executive orders. To wit, 

a recent study found that Executive Branch agencies failed to complete all four of the selected key elements of cost-benefit analysis 

for 19 percent of economically significant rules and 81 percent of 

significant rules, despite an executive order requirement to do so.9

The second limitation is that these executive orders have been 

considered to have only limited application to independent regulatory agencies. For example, President Obama’s Executive Order 

13579—a companion to Executive Order 13563—notes that 

‘‘[i]ndependent regulatory agencies . . . should promote’’ the same 

principles and aims of the earlier order, and that they ‘‘should comply with these provisions as well.’’ 10 The language notably avoids 

the more prescriptive language of ‘‘must’’ or ‘‘shall’’ in applying the 

order to independent agencies. Moreover, President Clinton’s Executive Order 12866 explicitly defines ‘‘agency’’ for the purpose of determining application of its requirements as an authority ‘‘other 

than those considered to be independent regulatory agencies.’’ 11

This means that despite the fact that regulations promulgated by 

independent regulatory agencies carry the same weight and force 

of law as those by Executive Branch agencies, they are nonetheless 

not subject to the same requirements. Therefore it should come as 

no surprise that independent agencies include ‘‘the key elements of 

cost-benefit analysis’’ (as outlined in the current executive order) in 

their published analysis less often than Executive Branch agencies.12 A different study using a different sample of rulemakings indicated that no major rule issued by an independent agency in 

2012 contained a complete cost-benefit analysis.13

In light of both these deficiencies, legislation is needed to set a 

consistent standard for the regulatory process, for both Executive 

and independent regulatory agencies. Codifying the requirements 

found in these executive orders will ensure both the consistent application of analytical requirements and conditions—regardless of 

originating agency—as well as a meaningful incentive for agency 

compliance via the possibility of judicial review. 

Support for the idea of subjecting all agencies to a uniform regulatory analytical program, particularly benefit-cost analysis, comes 

from experts from both Republican and Democratic administrations: 

• Susan Dudley, former Office of Information and Regulatory Affairs (OIRA) Administrator for President George W. 

Bush, has argued that independent regulatory agencies should 


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14 Examining Practical Solutions to Improve the Federal Regulatory Process: Roundtable Before 

the S. Comm. On Homeland Sec. & Governmental Affairs Subcomm. On Regulatory Affairs & 

Fed. Mgmt., 114th Cong. (2015) (statement of Susan Dudley). 15 Examining Practical Solutions to Improve the Federal Regulatory Process: Roundtable Before 

the S. Comm. On Homeland Sec. & Governmental Affairs Subcomm. On Regulatory Affairs 

&Fed. Mgmt., 114th Cong. (2015) (statement of Michael Greenstone). 16Sally Katzen, Expand Centralized Regulatory Review to Independent Agencies, Penn. Program on Regulation Blog (Aug. 9, 2011), http://www.regblog.org/2011/08/09/expand-centralized-regulatory-review-to-independent-agencies/. 17The President’s Council on Jobs & Competitiveness, Roadmap to Renewal 45 (2012), available at http://files.jobs-council.com/files/2012/01/JobsCouncill2011YearEndReportWeb.pdf. 

be ‘‘doing the analysis of the kind that Presidents have required executive branch agencies to do.’’ 14

• Dr. Michael Greenstone, former Chief Economist for President Obama’s Council of Economic Advisors, has argued that 

‘‘there is no reason that a regulation, no matter where it appears from, should not be subject to a cost-benefit analysis.’’ 15

• Sally Katzen, former OIRA Administrator for President 

Clinton, has argued that Congress should act to extend the requirements found in Executive Order 12866 to independent 

regulatory agencies because those agencies ‘‘are not typically 

engaging in the analysis that has come to be expected as a 

form of governmental best practice[s] for regulatory agencies.’’ 16

• President Obama’s Jobs Council has also recommended 

this action as it ‘‘would prompt [independent regulatory agencies] to perform better analyses and to issue better and smarter regulations.’’ 17

The requirements in this legislation would not place any new 

burden on the agency rulemaking process that has not already 

been required or encouraged by multiple presidents through executive order. 

III. LEGISLATIVE HISTORY

Senator James Lankford (R–OK) introduced S. 1818 on July 21, 

2015. The bill was referred to the Committee on Homeland Security and Governmental Affairs. Senators Heidi Heitkamp (D–ND), 

Kelly Ayotte (R–NH), and Joni Ernst (R–IA) are cosponsors of the 

bill. The Committee considered S. 1818 at a business meeting on 

October 7, 2015. 

During the business meeting, Senator Lankford offered a substitute amendment with clarifying language. The substitute 

amendment was adopted without objection by unanimous consent 

with Senators Johnson, Portman, Lankford, Enzi, Ernst, Sasse, 

Carper, McCaskill, Baldwin, Heitkamp, Booker, and Peters 

present. 

Senator Carper offered two amendments during the business 

meeting. The first was to strike the provision that would require 

agencies to tailor each rule to impose the least possible burden on 

society when maximizing benefits. This amendment failed on a 

voice vote. Senators present were Johnson, Portman, Lankford, 

Enzi, Ernst, Sasse, Carper, McCaskill, Baldwin, Heitkamp, Booker, 

and Peters. The second amendment removed the judicial review 

component of the bill. This amendment failed on a roll call vote of 

6 yeas to 10 nays. Senators voting in the affirmative were Senators 

Carper, McCaskill, Baldwin, Booker and Peters, and Senator 

Tester by proxy. Senators voting in the negative were Senators 


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Tester by proxy. Senators voting in the negative were Senators 

Johnson, Portman, Lankford, Enzi, Ernst, Sasse, and Heitkamp, 

and Senators McCain, Paul, and Ayotte by proxy. 

The Committee ordered S. 1818, as amended, reported favorably 

on October 7, 2015, by a roll call vote of 7 yeas to 5 nays. Senators 

voting in the affirmative were Senators Johnson, Portman, 

Lankford, Enzi, Ernst, Sasse, and Heitkamp. For the record only, 

Senators McCain, Paul, and Ayotte voted yea by proxy. Senators 

voting in the negative were Senators Carper, McCaskill, Baldwin, 

Booker, and Peters. For the record only, Senator Tester voted nay 

by proxy. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title 

This section provides the bill’s short title, the ‘‘Principled Rulemaking Act of 2015.’’ 

Section 2. Definitions 

This section provides several definitions, including for the following terms: ‘‘agency,’’ ‘‘rule,’’ ‘‘rule making,’’ and ‘‘regulatory action.’’ 

Section 3. Rule making considerations 

This section amends Section 553 of title 5, United States Code, 

by adding additional rulemaking principles. 

New subsection (f)(1) ensures that all regulations promulgated by 

agencies are directly related to law by requiring that agencies only 

promulgate rules that are (A) ‘‘required by law;’’ (B) ‘‘necessary to 

interpret 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.’’ 

New subsection (f)(2) stipulates the various analyses and considerations that an agency shall complete before promulgating a rule. 

The first five provisions detail what an agency must do before deciding on a rule. These include: identification of the problem; consideration of the legal authority under which the agency intends to 

act; examination of existing rules that may be contributing to the 

identified problem; identification of alternatives to regulation; and 

consideration of ‘‘the degree and nature of the risks’’ associated 

with ‘‘substances or activities within the jurisdiction of the agency.’’ 

The last nine provisions are requirements for agencies to complete ‘‘after determining that a rule is the best available method of 

achieving the regulatory objective.’’ These include: assessment of 

costs and benefits of the proposed rule; reliance on the best available scientific and technical information that is publicly available; 

identification of alternative forms of regulations such as establishment of performance standards rather than prescription of specific 

behaviors; consultation with and assessment of effect on State, 

local, or tribal governments; avoiding duplication; tailoring of the 

rule to maximize benefits and be least burdensome; and drafting of 

the rule in the clearest and simplest way. 

New subsection (f)(3) lists the exceptions to the new rulemaking 

requirements found in (f)(2). Following the language found in 5 


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U.S.C. 553(b)(3)(A), it specifically exempts ‘‘interpretive rules, general statements of policy, or rules of agency organization, procedures, or practice,’’ sometimes referred to as ‘‘guidance.’’ Exceptions 

can also be made by the OIRA Administrator or by the rule’s underlying statute. 

New subsection (f)(4) sets forth the framework for judicial review 

of agency compliance with the requirements of this subsection. The 

review must be ‘‘in connection with review of final agency action’’ 

and therefore a challenge cannot be made during the rulemaking 

process. The agency’s consideration of the provisions in subsection 

(f)(2) will be part of the rulemaking record and may be considered 

by a court to the extent relevant to determining if the rule is ‘‘arbitrary, capricious, or an abuse of discretion.’’ If the court finds the 

agency did not comply with the requirements herein, it may set 

aside the rule. 

Section 4. Public participation 

Subsection (a) ensures that, consistent with the requirements of 

5 U.S.C. § 553, agencies issue rules with a process that involves 

public participation. 

This subsection also requires agencies to allow comments 

through the internet on any proposed rule for at least a 60-day period, provide online access to the rulemaking docket for both proposed and final rules, and allow the public the ability to comment 

on pertinent parts of the proposed rule. 

Subsection (b) requires agencies, ‘‘when feasible and appropriate,’’ to reach out to parties that are likely to be affected by the 

rule. This includes those who may benefit as well as those who 

may be subject to new regulations. The requirement that those who 

are ‘‘likely to benefit and those who are potentially to be subject 

to the rule’’ requires that comments from all affected parties should 

be sought. 

Section 5. Integration and innovation 

This section requires that agencies develop regulatory approaches that are harmonized and coordinated among agencies and 

designed to promote innovation among the regulated parties. 

Section 6. Science 

When agencies issue a rule under 5 U.S.C. § 553, each agency 

must ensure that the scientific and technological information, processes, and models that are used in support of any regulatory action 

is the best available. The information must be peer-reviewed so 

that other experts in the field have the opportunity to verify the 

findings and those findings must be reproducible to ensure accuracy. Finally, the information must be made available for public access. 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill and determined that the bill will 

have no regulatory impact within the meaning of the rules. The 

Committee agrees with the Congressional Budget Office’s statement that the bill contains no intergovernmental or private-sector 


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mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would impose no costs on state, local, or tribal governments. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

AUGUST 29, 2016. 

Hon. RON JOHNSON, 

Chairman, Committee on Homeland Security and Governmental 

Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1818, the Principled Rulemaking Act of 2015. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

KEITH HALL, 

Enclosure. 

S. 1818—Principled Rulemaking Act of 2015 

CBO estimates that implementing S. 1818 would have no significant cost over the next five years. The bill could affect direct spending by agencies not funded though annual appropriations; therefore, pay-as-you-go procedures apply. CBO estimates, however, that 

any net increase in spending by those agencies would be negligible. 

Enacting S. 1818 would not affect revenues. 

CBO estimates that enacting S. 1818 would not increase net direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2027. 

S. 1818 would amend federal law to codify portions of Executive 

Order 12866 and Executive Order 13563. Those orders direct regulatory agencies to only issue regulations that are necessary, provide 

the maximum benefit to the public, and allow public involvement 

in the rulemaking process. Because the legislation would put into 

statute current policies and practices, CBO estimates that implementing S. 1818 would have no significant cost over the next five 

years. 

S. 1818 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or trial governments. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by Theresa Gullo, Assistant Director for 

Budget Analysis. 


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1 5 U.S.C. § 553. 

2 5 U.S.C § 601 et seq. 3 44 U.S.C. §§ 3501–3521. 

4 5 U.S.C.§§ 801–808. 

5See E.O. 12291, 46 Fed. Reg. 13193 (Feb. 19, 1981); E.O. 12866, 58 Fed. Reg. 51,735 (Oct. 

4, 1993); E.O. 13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011) 6See E.O. 12291, Sec. 9; E.O. 12866, Sec. 10; E.O. 13563, Sec. 7(d). 

VII. ADDITIONAL VIEWS 

While there has been strong bipartisan support for the principles 

in the Executive Orders that guide agency rulemakings through 

multiple administrations since at least the 1980s, codifying these 

principles raises a number of significant concerns and could significantly slow down the already slow regulatory process. First, this 

bill would make these principles legal requirements, subjecting 

each step of the process to judicial review, taking away agency 

flexibility, and overriding provisions of certain health, safety, and 

environmental laws that exempt regulations authorized by those 

laws from some of these requirements. In addition, this bill would 

extend these requirements to the independent agencies that often 

have their own statutory requirements. 

S.1818 would lead to endless litigation and regulatory delay 

There are a number of statutes that already provide the basic 

procedures that agencies must follow when promulgating regulations. Chief among them is the Administrative Procedures Act 

(APA), which among other things, requires all agencies to publish 

notice of proposed rulemaking, provide an opportunity for public 

comment, publish a final rule that includes a statement of basis 

and purpose, and wait at least 30 days after any rule’s publication 

to make that rule effective.1 In addition, agencies are required to 

comply, when applicable, with the requirements of the Regulatory 

Flexibility Act (RFA),2 the Paperwork Reduction Act (PRA),3 and 

the Congressional Review Act (CRA).4 Each of these laws provides 

judicial review of agency compliance. 

Since the 1980s, Presidents of both parties have supplemented 

these statutory requirements with executive orders that include additional procedures that agencies are directed to use, to the extent 

permitted by law, when promulgating regulations.5 S. 1818 would 

take the principles found in these widely supported executive orders and codify them—making these principles legally required and 

agency compliance with all of these principles judicially reviewable. 

This goes well beyond the intent of these executive orders. All of 

these executive orders, including E.O. 12291 issued by President 

Reagan, specifically precluded judicial review of agency compliance 

with the principles laid out in the executive orders.6 As each executive order has done since, the executive order issued by President 

Reagan made this very clear, stating that the executive order was 

‘‘intended only to improve the internal management of the Federal 


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7See E.O. 12291, Sec. 9. 8Testimony of Sally Katzen, hearing before the Senate Committee on Homeland Security and 

Governmental Affairs, ‘‘Toward a 21st-Century Regulatory System,’’ February 25, 2015. 9Principled Rulemaking Act of 2015, S. 1818, Sec. 6, 114th Cong. 

10Written testimony of Sidney A. Shapiro, hearing before the Senate Committee on Homeland 

Security and Governmental Affairs, ‘‘A Review of Regulatory Reform Proposals,’’ September 16, 

2015. 11Testimony of Howard Shelanski, hearing before the Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, 

‘‘Reviewing the Office of Information and Regulatory Affairs’ Role in the Regulatory Process,’’ 

July 16, 2015. 

government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the 

United States, its agencies, its officers or any person.’’ 7

The additional judicial scrutiny this bill would allow is problematic for a number of reasons and would have significant consequences, including additional regulatory delays. Courts would be 

asked to determine whether an agency was in compliance with requirements that are not always clearly defined and very difficult to 

review. As Sally Katzen, a former Administrator of the Office of Information and Regulatory Affairs, said in her testimony before the 

Committee in March 2015, ‘‘casting [the executive orders] in statute only compounds the problems’’ because of a lack of agency resources and because these requirements would be hard to review, 

‘‘. . . like quantifying costs, what does that mean and how would 

somebody say that is sufficient?’’ 8 This would invite endless litigation and delays since those who oppose these regulations would be 

able to challenge each of these requirements in court. And courts, 

who are not experts on the issues, would have the nearly impossible task of trying to decide in each case whether or not the agency’s work was sufficient. 

For example, one provision of the bill would require agencies to 

ensure scientific or technical data used in formulating and analyzing the rule was objective, but the provision provides no definition of ‘‘objective’’ and does not describe how compliance with this 

requirement could be demonstrated by the agency.9 Does this mean 

a scientific study is not objective if it is disputed by other studies? 

Does this mean experts at the agency cannot make any judgements 

about the validity of the evidence available or make any policy 

judgements based on their expertise and experience? In his testimony before the Committee, Sidney Shapiro, a law professor at 

Wake Forest University and a leading expert in administrative procedure and regulatory policy, raised these concerns with this provision saying, ‘‘[g]eneralist judges would be empowered to secondguess the scientific judgments of agency experts on complex matters of science, medicine, and technology on the basis of the problematic concept of ‘objectivity’.’’ 10 Howard Shelanski, the current 

Administrator of the Office of Information and Regulatory Affairs 

(OIRA) at the Office of Management and Budget, testified last year 

that he does not believe codification of the principles in the Executive Orders are necessary, saying ‘‘[w]e at OIRA think that we have 

the tools that we need under the Executive Orders to achieve what 

we need to achieve.’’ 11 And that ‘‘the Executive Orders are on very 


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12Testimony of Howard Shelanski, hearing before the Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, 

‘‘Reviewing the Office of Information and Regulatory Affairs’ Role in the Regulatory Process,’’ 

July 16, 2015. 13Principled Rulemaking Act of 2015, S. 1818, Sec. 3, 114th Cong., new 5 U.S.C. 

553(f)(1)(M)(i). 14 15 U.S.C. § 2605 (a) (amended in 2016). 15The Frank R. Lautenberg Chemical Safety for the 21st Century Act, P.L. 114–182, Sec. 6, 

striking ‘‘to protect adequately against such risk using the least burdensome requirements’’ from 

15 U.S.C. § 2605(a). 16See E.O. 12291, Sec. 2; E.O. 12866, Sec. 1(b); E.O. 13563, Sec. 1(b). 17Whitman v. Am. Trucking Ass’ns., Inc., 531 U.S. 457, 471 (2001). 18 Amer. Bar Assoc. Section of Admin. L. and Reg. Practice, Comments on H.R. 3010, The Regulatory Accountability Act of 2011 12–13 (2011), citing Sidney A. Shapiro & Robert L. 

solid ground having stayed firm and really only been reaffirmed 

across Administrations of both parties.’’ 12

We are also concerned with another requirement in the bill 

which would require agencies to tailor each rule so it would impose 

the least possible burden on society.13 This requirement is very 

similar to the requirement in the Toxic Substances Control Act 

(TSCA) that made it nearly impossible to use that law to protect 

people and the environment from harmful chemicals.14 This provision was so problematic that it was recently repealed.15 While a 

very similar provision requiring tailoring a rule is included in E.O. 

12866, the language of the executive order and nature of the executive orders generally provides agencies with some flexibility. This 

type of requirement becomes much more problematic when put into 

statute like it was in the Toxic Substances Control Act. Despite 

clear evidence of the consequences of such a provision and the fact 

that the Senate was at that very same time voting to remove a 

similar provision from TSCA, the majority of my colleagues rejected 

an amendment Senator Carper offered to this bill, S. 1818, that 

would have struck this particularly problematic provision. 

S.1818 would override existing provisions of certain health, safety, 

and environmental laws that exempt regulations authorized by 

those laws from some of requirements of executive orders on 

rule makings 

In addition to precluding judicial review, each of the executive orders this bill would codify, including E.O. 12291 issued by President Reagan, specifically stated that the requirements in the executive orders would not override statutes that aimed to exclude certain regulations from requirements in the executive orders by specifically stating that these requirements of the executive orders applied only to the extent permitted by law.16 This bill, however, 

seems to require agencies to follow these same requirements for all 

regulations, regardless of the original intent of the authorizing 

statutes. A number of health, safety and environmental statutes 

specifically bar agencies from certain considerations or specifically 

provide the decision-making criteria that the agency should use in 

rulemakings, criteria that could differ from those spelled out in the 

orders. For example, courts have found that provisions of the Clean 

Air Act specifically bar the use of cost-benefit analysis for regulations authorized by the Act.17 And the American Bar Association 

has criticized similar ‘‘supermandates’’’ saying that ‘‘[much], perhaps most, of the safety and health legislation now on the books 

would seemingly be displaced.18


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Glicksman, Risk Regulation at Risk: restoring a Pragmatic Approach 32 (2003) (which surveyed 

22 health, safety, and environmental laws and found that only two contain a substantive costbenefit mandate). 19See e.g., Testimony of Sidney A. Shapiro, hearing before the Senate Committee on Homeland Security and Governmental Affairs, ‘‘A Review of Regulatory Reform Proposals,’’ September 

16, 2015. (saying, ‘‘Congress explicitly designed independent regulatory agencies to be institutionally insulated from excessive political interference from the president.’’); Paul R. Verkuil, 

The Purposes and Limits of Independent Agencies, 1988 Duke L.J. 257, 259–60 (1988) (saying, 

‘‘The requirement that the President appoint some commissioners of the party out of power or 

who are politically ‘independent’ is designed to isolate those decisionmakers from politics.’’). 

S. 1818 would extend all of these requirements to independent agencies that are not currently subject to the executive orders 

S. 1818 would extend the requirements in the rule making executive orders to the independent agencies that are not currently subject to the executive orders. While we appreciate the need to ensure 

thoughtful analysis during the regulatory process of the impacts a 

proposed rule could have, we have serious concerns with the impact 

this bill would have on independent regulatory agencies. Independent regulatory agencies already conduct regulatory analysis 

and have their own analytical requirements for rulemaking, some 

of which are required by statute. Furthermore, requiring independent regulatory agencies to submit their regulatory analysis to 

the Office of Information and Regulatory Affairs (OIRA) would 

cause additional regulatory delays and undermine the independence of the independent agencies. 

In addition to the many statutes that already guide all agency 

rulemaking, many of the statutes that authorize the independent 

agencies include statutory requirements for regulatory analysis, 

which, while different from the executive order analysis, can be 

quite rigorous. If there is a certain agency that is not meeting its 

statutory requirements or whose authorizing statute should be updated to include additional analytical requirements, that is something the authorizing committee of that agency should consider undertaking—it does not mean we should impose these same requirements on all independent regulatory agencies. 

Imposing the same analytical requirements as other executive 

branch agencies on all of the independent regulatory agencies, regardless of the other statutory requirements already imposed on 

them, would not improve the efficiency and effectiveness of the regulatory process at these agencies. Instead, it would just further 

slow down the already slow regulatory process and ensure delays 

in the promulgation of regulations and the implementation of laws 

that Congress passes. 

Including independent agencies in these requirements would also 

undermine the independence of these agencies and cause delays of 

important regulations, including many meant to protect health and 

safety and promote consumer protection. Independent regulatory 

agencies were established by Congress to fulfill their missions, including their rulemaking authority, independent of the direct control of any administration, regardless of party.19 Members of both 

parties have at times expressed frustration with a president’s ability to influence rulemakings at independent regulatory agencies, 

even without the requirement for OIRA review of these regulations 

that this bill would allow. 


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20Staff Report of the Majority Office of the Senate Committee on Homeland Security and Governmental Affairs, Regulating the Internet: How the White House Bowled over FCC Independence, February 29, 2016. 21 Id. at 29. 

For example, the majority staff of this committee released a report in February 2016 alleging that the President improperly interfered in the Federal Communications Commissions’ open internet 

rulemaking.20 As their report concluded, ‘‘Politics should never 

trump policy, especially not when an agency, like the FCC, was created for the expressed purpose of being independent and above the 

political fray.’’ 21 This bill would not just allow a President to have 

even more political influence on these independent agencies’ 

rulemakings, but would provide the President with explicit approval from Congress to do so. It is important that we do not politicize the regulatory process at these independent regulatory agencies by giving this President or any future President the ability to 

interfere in these rulemakings. 

Conclusion 

We believe that whatever we do here in Congress and on this 

Committee to reform the regulatory process should encourage reducing burdens and increasing transparency while achieving the 

greatest public benefit. It should be our goal to have the most efficient, effective, and transparent regulatory process we can have, 

and to ensure that process results in common-sense regulations. 

We do not believe this bill would improve the regulatory process, 

and in fact would make the process far less efficient. Therefore, we 

oppose this measure. 


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(13) 

VIII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 1818 as 

reported are shown as follows (existing law proposed to be omitted 

is enclosed in brackets, new matter is printed in italic, and existing 

law in which no change is proposed is shown in roman): 

UNITED STATES CODE 

* * * * * * * 

TITLE 5—GOVERNMENT ORGANIZATION AND 

EMPLOYEES 

* * * * * * * 

PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 5—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE 

* * * * * * * 

SEC. 553. RULE MAKING 

(a) * * * 

* * * * * * * 

(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; 


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(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; 


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(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— 


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(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. 

Æ 


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