II 

114TH CONGRESS 

1ST SESSION S. 1818 

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 introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

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’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 

8 (1) the terms ‘‘agency’’, ‘‘rule’’, and ‘‘rule mak9 ing’’ have the meanings given those terms in section 

10 551 of title 5, United States Code; and 


smartinez on DSK4TPTVN1PROD with BILLS
2 

•S 1818 IS

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

2 substantive action by an agency (normally published 

3 in the Federal Register) that promulgates or is ex4 pected to lead to the promulgation of a final regula5 tion, including notices of inquiry, advance notices of 

6 proposed rule making, and notices of proposed rule 

7 making. 

8 SEC. 3. RULE MAKING CONSIDERATIONS. 

9 Section 553 of title 5, United States Code, is amend10 ed by adding at the end the following: 

11 ‘‘(f) RULE MAKING CONSIDERATIONS.— 

12 ‘‘(1) IN GENERAL.—An agency shall only pro13 mulgate a rule under this section that is— 

14 ‘‘(A) required by law; 

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

16 ‘‘(C) made necessary by compelling public 

17 need, such as a material failure of the private 

18 markets to protect or improve the health and 

19 safety of the public, the environment, or the 

20 wellbeing of the people of the United States. 

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

22 rule under this section, an agency shall— 

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

24 the problem that the agency intends to address 

25 with the rule, including, where applicable, the 


smartinez on DSK4TPTVN1PROD with BILLS
3 

•S 1818 IS

1 failures of private markets or public institutions 

2 that warrant new agency action; 

3 ‘‘(B) consider the legal authority under 

4 which the rule may be proposed, including 

5 whether a rule making is required by statute, 

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

7 the agency has discretion to commence a rule 

8 making; 

9 ‘‘(C) examine whether existing rules or 

10 other laws— 

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

12 problem identified under subparagraph 

13 (A); and 

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

15 intended regulatory objective more effec16 tively; 

17 ‘‘(D) identify and assess available alter18 natives to direct regulation, including by pro19 viding— 

20 ‘‘(i) economic incentives to encourage 

21 the desired behavior, such as user fees or 

22 marketable permits; or 

23 ‘‘(ii) information upon which choices 

24 may be made by the public; 


smartinez on DSK4TPTVN1PROD with BILLS
4 

•S 1818 IS

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

2 degree and nature of the risks posed by various 

3 substances or activities within the jurisdiction 

4 of the agency; 

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

6 best available method of achieving the regu7 latory objective, design the rule in the most 

8 cost-effective manner to achieve the regulatory 

9 objective; 

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

11 consider— 

12 ‘‘(i) incentives for innovation, consist13 ency, predictability, flexibility, distributive 

14 impacts, and equity; and 

15 ‘‘(ii) the costs of enforcement and 

16 compliance to the Federal Government, 

17 regulated entities, and the public; 

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

19 the intended rule and, recognizing that some 

20 costs and benefits (including quantifable and 

21 qualitative measures) are difficult to quantify— 

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

23 a reasoned determination that the benefits 

24 of the intended rule justify the costs of the 

25 rule; and 


smartinez on DSK4TPTVN1PROD with BILLS
5 

•S 1818 IS

1 ‘‘(ii) select approaches that maximize 

2 net benefits, unless a statute requires an3 other regulatory approach; 

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

5 obtainable scientific, technical, economic, and 

6 other information concerning the need for, and 

7 consequences of, the intended rule; 

8 ‘‘(J) 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 

12 are required to adopt; 

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

18 local, and tribal governments, including specifi19 cally the availability of resources to carry out 

20 those mandates, and seek to minimize those 

21 burdens that uniquely or significantly affect 

22 those governmental entities, consistent with 

23 achieving the regulatory objective of the agency; 


smartinez on DSK4TPTVN1PROD with BILLS
6 

•S 1818 IS

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

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

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

5 is inconsistent, incompatible, or duplicative with 

6 other rules of the agency or those of other 

7 agencies; 

8 ‘‘(O) tailor the rule— 

9 ‘‘(i) to impose the least burden on so10 ciety, including individuals, businesses of 

11 differing sizes, and other entities, including 

12 small communities and governmental enti13 ties; and 

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

15 with obtaining the regulatory objective, 

16 taking into account, and to the extent 

17 practicable, the costs of cumulative rules; 

18 and 

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

20 uncertainty and litigation arising from such un21 certainty, draft the rule in a manner that is 

22 simple and easy to understand.’’. 

23 SEC. 4. PUBLIC PARTICIPATION. 

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

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


smartinez on DSK4TPTVN1PROD with BILLS
7 

•S 1818 IS

1 553 of title 5, United States Code, and other applicable 

2 requirements, issue rules through a process that involves 

3 public participation, including— 

4 (1) providing the public with an opportunity to 

5 participate in the regulatory process; and 

6 (2) to the extent feasible— 

7 (A) affording the public a meaningful op8 portunity to submit comments through the 

9 Internet on any proposed rule for a period of 

10 not less than 60 days; 

11 (B) providing, for both proposed and final 

12 rules, timely online access to the rule making 

13 docket of the agency on an easily accessible 

14 Federal website, including relevant scientific 

15 and technical findings, in an open, searchable, 

16 and downloadable format; and 

17 (C) providing an opportunity for public 

18 comment on all pertinent parts of the proposed 

19 rule making docket of the agency, including rel20 evant scientific and technical findings. 

21 (b) COMMENTS FROM AFFECTED PARTIES.—Before 

22 issuing a notice of proposed rule making, each agency 

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

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


smartinez on DSK4TPTVN1PROD with BILLS
8 

•S 1818 IS

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

2 potentially subject to the rule. 

3 SEC. 5. INTEGRATION AND INNOVATION. 

4 In developing regulatory actions and identifying ap5 propriate approaches, each agency shall— 

6 (1) attempt to promote coordination, simplifica7 tion, and harmonization; and 

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

9 achieve regulatory goals that are designed to pro10 mote innovation. 

11 SEC. 6. FLEXIBLE APPROACHES. 

12 Where relevant, feasible, and consistent with regu13 latory objectives, and to the extent permitted by law, each 

14 agency shall identify and consider regulatory approaches 

15 that— 

16 (1) reduce burdens and maintain flexibility and 

17 freedom of choice for the public; 

18 (2) include warnings, appropriate default rules, 

19 and disclosure requirements; and 

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

21 that is clear and intelligible. 


smartinez on DSK4TPTVN1PROD with BILLS
9 

•S 1818 IS

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. 

Æ 


smartinez on DSK4TPTVN1PROD with BILLS