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
To amend title 5, United States Code, to reform the rule making process of agencies.
This Act may be cited as the
Principled Rulemaking Act of 2015.
In this Act—
the terms agency, rule, and rule making have the meanings given those terms in section 551 of title 5, United States Code; and
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.
Rule making considerations
Section 553 of title 5, United States Code, is amended by adding at the end the following:
Rule making considerations
An agency shall only promulgate a rule under this section that is—
required by law;
necessary to interpret a law; or
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.
Before promulgating a rule under this section, an agency shall—
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;
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;
examine whether existing rules or other laws—
have created or contributed to the problem identified under subparagraph (A); and
should be modified to achieve the intended regulatory objective more effectively;
identify and assess available alternatives to direct regulation, including by providing—
economic incentives to encourage the desired behavior, such as user fees or marketable permits; or
information upon which choices may be made by the public;
consider, to the extent reasonable, the degree and nature of the risks posed by various substances or activities within the jurisdiction of the agency;
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;
in carrying out subparagraph (F), consider—
incentives for innovation, consistency, predictability, flexibility, distributive impacts, and equity; and
the costs of enforcement and compliance to the Federal Government, regulated entities, and the public;
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—
propose or adopt a rule only upon a reasoned determination that the benefits of the intended rule justify the costs of the rule; and
select approaches that maximize net benefits, unless a statute requires another regulatory approach;
base decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended rule;
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;
seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that may significantly or uniquely affect those governmental entities;
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;
as appropriate, seek to harmonize agency action with related State, local, and tribal regulatory and other governmental functions;
avoid the promulgation of a rule that is inconsistent, incompatible, or duplicative with other rules of the agency or those of other agencies;
tailor the rule—
to impose the least burden on society, including individuals, businesses of differing sizes, and other entities, including small communities and governmental entities; and
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
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.
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—
providing the public with an opportunity to participate in the regulatory process; and
to the extent feasible—
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;
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
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.
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.
Integration and innovation
In developing regulatory actions and identifying appropriate approaches, each agency shall—
attempt to promote coordination, simplification, and harmonization; and
seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.
Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that—
reduce burdens and maintain flexibility and freedom of choice for the public;
include warnings, appropriate default rules, and disclosure requirements; and
provide information to the public in a form that is clear and intelligible.
Each agency shall ensure the objectivity of any scientific and technological information and processes used to support each regulatory action of the agency.