II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Principled Rulemaking 

5 Act of 2015’’. 


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1 SEC. 2. DEFINITIONS. 

2 In this Act— 

3 (1) the terms ‘‘agency’’, ‘‘rule’’, and ‘‘rule mak4 ing’’ have the meanings given those terms in section 

5 551 of title 5, United States Code; and 

6 (2) the term ‘‘regulatory action’’ means any 

7 substantive action by an agency (normally published 

8 in the Federal Register) that promulgates or is ex9 pected to lead to the promulgation of a final regula10 tion, including notices of inquiry, advance notices of 

11 proposed rule making, and notices of proposed rule 

12 making. 

13 SEC. 3. RULE MAKING CONSIDERATIONS. 

14 Section 553 of title 5, United States Code, is amend15 ed by adding at the end the following: 

16 ‘‘(f) RULE MAKING CONSIDERATIONS.— 

17 ‘‘(1) IN GENERAL.—An agency shall only pro18 mulgate a rule under this section that is— 

19 ‘‘(A) required by law; 

20 ‘‘(B) necessary to interpret a law; or 

21 ‘‘(C) made necessary by compelling public 

22 need, such as a material failure of the private 

23 markets to protect or improve the health and 

24 safety of the public, the environment, or the 

25 wellbeing of the people of the United States. 


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1 ‘‘(2) CONSIDERATIONS.—Before promulgating a 

2 rule under this section, an agency shall— 

3 ‘‘(A) identify and assess the significance of 

4 the problem that the agency intends to address 

5 with the rule, including, where applicable, the 

6 failures of private markets or public institutions 

7 that warrant new agency action; 

8 ‘‘(B) consider the legal authority under 

9 which the rule may be proposed, including 

10 whether a rule making is required by statute, 

11 and if so, whether by a specific date, or whether 

12 the agency has discretion to commence a rule 

13 making; 

14 ‘‘(C) examine whether existing rules or 

15 other laws— 

16 ‘‘(i) have created or contributed to the 

17 problem identified under subparagraph 

18 (A); and 

19 ‘‘(ii) should be modified to achieve the 

20 intended regulatory objective more effec21 tively; 

22 ‘‘(D) identify and assess available alter23 natives to direct regulation, including by pro24 viding— 


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1 ‘‘(i) economic incentives to encourage 

2 the desired behavior, such as user fees or 

3 marketable permits; or 

4 ‘‘(ii) information upon which choices 

5 may be made by the public; 

6 ‘‘(E) consider, to the extent reasonable, the 

7 degree and nature of the risks posed by various 

8 substances or activities within the jurisdiction 

9 of the agency; 

10 ‘‘(F) if after determining that a rule is the 

11 best available method of achieving the regu12 latory objective, design the rule in the most 

13 cost-effective manner to achieve the regulatory 

14 objective; 

15 ‘‘(G) in carrying out subparagraph (F), 

16 consider— 

17 ‘‘(i) incentives for innovation, consist18 ency, predictability, flexibility, distributive 

19 impacts, and equity; and 

20 ‘‘(ii) the costs of enforcement and 

21 compliance to the Federal Government, 

22 regulated entities, and the public; 

23 ‘‘(H) assess the costs and the benefits of 

24 the intended rule and, recognizing that some 


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1 costs and benefits (including quantifable and 

2 qualitative measures) are difficult to quantify— 

3 ‘‘(i) propose or adopt a rule only upon 

4 a reasoned determination that the benefits 

5 of the intended rule justify the costs of the 

6 rule; and 

7 ‘‘(ii) select approaches that maximize 

8 net benefits, unless a statute requires an9 other regulatory approach; 

10 ‘‘(I) base decisions on the best reasonably 

11 obtainable scientific, technical, economic, and 

12 other information concerning the need for, and 

13 consequences of, the intended rule; 

14 ‘‘(J) identify and assess alternative forms 

15 of regulation and, to the extent feasible, specify 

16 performance objectives, and not the behavior or 

17 manner of compliance that regulated entities 

18 are required to adopt; 

19 ‘‘(K) seek views of appropriate State, local, 

20 and tribal officials before imposing regulatory 

21 requirements that may significantly or uniquely 

22 affect those governmental entities; 

23 ‘‘(L) assess the effects of rules on State, 

24 local, and tribal governments, including specifi25 cally the availability of resources to carry out 


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1 those mandates, and seek to minimize those 

2 burdens that uniquely or significantly affect 

3 those governmental entities, consistent with 

4 achieving the regulatory objective of the agency; 

5 ‘‘(M) as appropriate, seek to harmonize 

6 agency action with related State, local, and trib7 al regulatory and other governmental functions; 

8 ‘‘(N) avoid the promulgation of a rule that 

9 is inconsistent, incompatible, or duplicative with 

10 other rules of the agency or those of other 

11 agencies; 

12 ‘‘(O) tailor the rule— 

13 ‘‘(i) to impose the least burden on so14 ciety, including individuals, businesses of 

15 differing sizes, and other entities, including 

16 small communities and governmental enti17 ties; and 

18 ‘‘(ii) in a manner that is consistent 

19 with obtaining the regulatory objective, 

20 taking into account, and to the extent 

21 practicable, the costs of cumulative rules; 

22 and 

23 ‘‘(P) in order to minimize the potential for 

24 uncertainty and litigation arising from such unVerDate Sep 11 2014 23:00 Sep 06, 2016 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1818.RS S1818

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1 certainty, draft the rule in a manner that is 

2 simple and easy to understand.’’. 

3 SEC. 4. PUBLIC PARTICIPATION. 

4 (a) IN GENERAL.—To promote an open exchange 

5 with the public, each agency shall, consistent with section 

6 553 of title 5, United States Code, and other applicable 

7 requirements, issue rules through a process that involves 

8 public participation, including— 

9 (1) providing the public with an opportunity to 

10 participate in the regulatory process; and 

11 (2) to the extent feasible— 

12 (A) affording the public a meaningful op13 portunity to submit comments through the 

14 Internet on any proposed rule for a period of 

15 not less than 60 days; 

16 (B) providing, for both proposed and final 

17 rules, timely online access to the rule making 

18 docket of the agency on an easily accessible 

19 Federal website, including relevant scientific 

20 and technical findings, in an open, searchable, 

21 and downloadable format; and 

22 (C) providing an opportunity for public 

23 comment on all pertinent parts of the proposed 

24 rule making docket of the agency, including rel25 evant scientific and technical findings. 


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1 (b) COMMENTS FROM AFFECTED PARTIES.—Before 

2 issuing a notice of proposed rule making, each agency 

3 shall, when feasible and appropriate, seek the views of 

4 those who are likely to be affected by the rule, including 

5 those who are likely to benefit from and those who are 

6 potentially subject to the rule. 

7 SEC. 5. INTEGRATION AND INNOVATION. 

8 In developing regulatory actions and identifying ap9 propriate approaches, each agency shall— 

10 (1) attempt to promote coordination, simplifica11 tion, and harmonization; and 

12 (2) seek to identify, as appropriate, means to 

13 achieve regulatory goals that are designed to pro14 mote innovation. 

15 SEC. 6. FLEXIBLE APPROACHES. 

16 Where relevant, feasible, and consistent with regu17 latory objectives, and to the extent permitted by law, each 

18 agency shall identify and consider regulatory approaches 

19 that— 

20 (1) reduce burdens and maintain flexibility and 

21 freedom of choice for the public; 

22 (2) include warnings, appropriate default rules, 

23 and disclosure requirements; and 

24 (3) provide information to the public in a form 

25 that is clear and intelligible. 


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1 SEC. 7. SCIENCE. 

2 Each agency shall ensure the objectivity of any sci3 entific and technological information and processes used 

4 to support each regulatory action of the agency. 

5 SECTION 1. SHORT TITLE. 

6 This Act may be cited as the ‘‘Principled Rulemaking 

7 Act of 2015’’. 

8 SEC. 2. DEFINITIONS. 

9 In this Act— 

10 (1) the terms ‘‘agency’’, ‘‘rule’’, and ‘‘rule mak11 ing’’ have the meanings given those terms in section 

12 551 of title 5, United States Code; and 

13 (2) the term ‘‘regulatory action’’— 

14 (A) means any substantive action by an 

15 agency (normally published in the Federal Reg16 ister) that promulgates or is expected to lead to 

17 the promulgation of a final regulation, including 

18 notices of inquiry, advance notices of proposed 

19 rule making, and notices of proposed rule mak20 ing; and 

21 (B) does not include an action by an agen22 cy involving— 

23 (i) a military or foreign affairs func24 tion of the United States; or 


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1 (ii) a matter relating to agency man2 agement or personnel or to public property, 

3 loans, grants, benefits, or contracts. 

4 SEC. 3. RULE MAKING CONSIDERATIONS. 

5 Section 553 of title 5, United States Code, is amended 

6 by adding at the end the following: 

7 ‘‘(f) RULE MAKING CONSIDERATIONS.— 

8 ‘‘(1) IN GENERAL.—An agency shall only pro9 mulgate a rule under this section that is— 

10 ‘‘(A) required by law; 

11 ‘‘(B) necessary to interpret a law; or 

12 ‘‘(C) as permitted by law, made necessary 

13 by public need, to protect or improve the health 

14 and safety of the public, the environment, or the 

15 wellbeing of the people of the United States. 

16 ‘‘(2) CONSIDERATIONS.—Before promulgating a 

17 rule under this section, an agency shall— 

18 ‘‘(A) identify and assess the significance of 

19 the problem that the agency intends to address 

20 with the rule; 

21 ‘‘(B) consider the legal authority under 

22 which the rule may be proposed, including 

23 whether a rule making is required by statute, 

24 and if so, whether by a specific date, or whether 


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1 the agency has discretion to commence a rule 

2 making; 

3 ‘‘(C) where practicable, examine whether ex4 isting rules or other laws, including the cumu5 lative effect of existing rules or other laws— 

6 ‘‘(i) have created or contributed to the 

7 problem identified under subparagraph (A); 

8 and 

9 ‘‘(ii) should be modified to achieve the 

10 intended regulatory objective more effec11 tively; 

12 ‘‘(D) as permitted by statute, identify and 

13 assess available alternatives to direct regulation, 

14 including by providing— 

15 ‘‘(i) economic incentives to encourage 

16 the desired behavior, such as user fees or 

17 marketable permits; or 

18 ‘‘(ii) information to the public in a 

19 form that is clear and intelligible; 

20 ‘‘(E) consider, to the extent reasonable, the 

21 degree and nature of the risks posed by various 

22 substances or activities within the jurisdiction of 

23 the agency; 


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1 ‘‘(F) after determining that a rule is the 

2 best available method of achieving the regulatory 

3 objective— 

4 ‘‘(i) assess the costs and benefits of the 

5 intended rule and, recognizing that some 

6 costs and benefits (including quantifiable 

7 and qualitative measures) are difficult to 

8 quantify, design the rule to maximize net 

9 benefits while justifying the costs, unless a 

10 statute requires another regulatory ap11 proach; and 

12 ‘‘(ii) as permitted by statute— 

13 ‘‘(I) consider, when developing the 

14 rule— 

15 ‘‘(aa) incentives for innova16 tion, consistency, predictability, 

17 flexibility, distributive impacts, 

18 and equity on the regulated enti19 ties and the public; and 

20 ‘‘(bb) the cost of enforcement 

21 and compliance to the Federal 

22 Government, regulated entities, 

23 and the public; and 

24 ‘‘(II) select approaches that reduce 

25 burdens and maintain flexibility and 


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1 freedom of choice for regulated entities 

2 and the public; 

3 ‘‘(G) base decisions on the best reasonably 

4 obtainable and publically accessible scientific, 

5 technical, economic, and other information con6 cerning the need for, and consequences of, the in7 tended rule; 

8 ‘‘(H) identify and assess alternative forms 

9 of regulation and, to the extent feasible, specify 

10 performance objectives, and not the behavior or 

11 manner of compliance that regulated entities are 

12 required to adopt; 

13 ‘‘(I) seek views of appropriate State, local, 

14 and tribal officials before imposing regulatory 

15 requirements that may significantly or uniquely 

16 affect those governmental entities; 

17 ‘‘(J) assess the effects of rules on State, 

18 local, and tribal governments and the private 

19 sector, including specifically the availability of 

20 resources to carry out those mandates, and seek 

21 to minimize those burdens that uniquely or sig22 nificantly affect those governmental entities, con23 sistent with achieving the regulatory objective of 

24 the agency; 


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1 ‘‘(K) as appropriate, seek to harmonize 

2 agency action with related State, local, and trib3 al regulatory and other governmental functions; 

4 ‘‘(L) avoid the promulgation of a rule that 

5 is inconsistent, incompatible, or duplicative with 

6 other rules of the agency or those of other agen7 cies; 

8 ‘‘(M) tailor the rule— 

9 ‘‘(i) to maximize benefits while impos10 ing the least possible burden on society, in11 cluding individuals, businesses of differing 

12 sizes, and other entities, including small 

13 communities and governmental entities; and 

14 ‘‘(ii) in a manner that is consistent 

15 with obtaining the regulatory objective, tak16 ing into account, and to the greatest extent 

17 practicable, the costs of cumulative rules; 

18 and 

19 ‘‘(N) in order to minimize the potential for 

20 uncertainty and litigation arising from such un21 certainty— 

22 ‘‘(i) draft the rule in a manner that is 

23 simple and easy to understand; and 

24 ‘‘(ii) include information to assist with 

25 compliance with the rule, such as warnings, 


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1 appropriate default rules, and disclosure re2 quirements. 

3 ‘‘(3) EXCEPTIONS.—This subsection shall not 

4 apply— 

5 ‘‘(A) to interpretative rules, general state6 ments of policy, or rules of agency organization, 

7 procedures, or practice; 

8 ‘‘(B) if the Administrator of the Office of 

9 Information and Regulatory Affairs waives the 

10 requirements of this subsection for good cause; or 

11 ‘‘(C) if the statute on which a proposed rule 

12 is based specifically exempts a rule from any of 

13 the procedures under this subsection. 

14 ‘‘(4) JUDICIAL REVIEW.— 

15 ‘‘(A) IN GENERAL.—Compliance by an 

16 agency with the provisions of this subsection 

17 shall be subject to judicial review only— 

18 ‘‘(i) in connection with review of final 

19 agency action; and 

20 ‘‘(ii) in accordance with this para21 graph. 

22 ‘‘(B) DETERMINATIONS BY ADMINIS23 TRATOR.—Any determination, action, or inac24 tion of the Administrator of the Office of InforVerDate Sep 11 2014 23:00 Sep 06, 2016 Jkt 059200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6203 E:\BILLS\S1818.RS S1818

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1 mation and Regulatory Affairs under this sub2 section shall not be subject to judicial review. 

3 ‘‘(C) REVIEW WITH FINAL RULE.—Compli4 ance by an agency with the provisions of this 

5 subsection shall only be subject to judicial review 

6 in connection with review of the final rule to 

7 which an analysis, assessment, or other consider8 ation under paragraph (2) applies. 

9 ‘‘(D) RULE MAKING RECORD.—Each consid10 eration by an agency under paragraph (2) shall 

11 be— 

12 ‘‘(i) included as part of the rule mak13 ing record for the rule; and 

14 ‘‘(ii) to the extent relevant, considered 

15 by a court only in determining whether, 

16 under the statute granting the rule making 

17 authority to the agency, the final rule is— 

18 ‘‘(I) arbitrary, capricious, or an 

19 abuse of discretion; or 

20 ‘‘(II) unsupported by substantial 

21 evidence where the standard is other22 wise provided by law. 

23 ‘‘(E) SET ASIDE.—If an agency fails to 

24 comply with the requirements under paragraph 

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1 dicial error, hold unlawful and set aside the 

2 agency action.’’. 

3 SEC. 4. PUBLIC PARTICIPATION. 

4 (a) IN GENERAL.—To promote an open exchange with 

5 the public, each agency shall, consistent with section 553 

6 of title 5, United States Code, and other applicable require7 ments, issue rules through a process that involves public 

8 participation, including— 

9 (1) providing the public with a meaningful op10 portunity to participate in the regulatory process; 

11 and 

12 (2) to the greatest extent feasible— 

13 (A) affording the public a meaningful op14 portunity to submit comments through the Inter15 net on any proposed rule for a period of not less 

16 than 60 days; 

17 (B) providing, for both proposed and final 

18 rules, timely online access to the rule making 

19 docket of the agency on an easily accessible Fed20 eral website, including relevant scientific and 

21 technical findings, in an open, searchable, and 

22 downloadable format; and 

23 (C) providing an opportunity for public 

24 comment on all pertinent parts of the proposed 


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1 rule making docket of the agency, including rel2 evant scientific and technical findings. 

3 (b) COMMENTS FROM AFFECTED PARTIES.—Before 

4 issuing a notice of proposed rule making, each agency shall, 

5 when feasible and appropriate, seek the views of those who 

6 are likely to be affected by the rule, including those who 

7 are likely to benefit from and those who are potentially sub8 ject to the rule. 

9 SEC. 5. INTEGRATION AND INNOVATION. 

10 In developing regulatory actions and identifying ap11 propriate approaches, each agency shall— 

12 (1) attempt to promote coordination, simplifica13 tion, and harmonization; and 

14 (2) seek to identify, as appropriate, means to 

15 achieve regulatory goals that are designed to promote 

16 innovation. 

17 SEC. 6. SCIENCE. 

18 When issuing a rule under section 553, each agency 

19 shall ensure that any scientific and technological informa20 tion and processes, including models, used to support any 

21 regulatory action of the agency is the best available, by tak22 ing into consideration whether the scientific and techno23 logical information and processes used are objective, peer24 reviewed, reproducible, and publically available. 


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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 


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