```

[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
```