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S. 1818 (114th): Principled Rulemaking Act of 2015

The text of the bill below is as of Sep 6, 2016 (Reported by Senate Committee).


II

Calendar No. 613

114th CONGRESS

2d Session

S. 1818

[Report No. 114–342]

IN THE SENATE OF THE UNITED STATES

July 21, 2015

(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 , 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.

Short title

This Act may be cited as the Principled Rulemaking Act of 2015.

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 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.

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)

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.

(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, including, where applicable, the failures of private markets or public institutions that warrant new agency action;

(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)

examine whether 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)

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 upon which choices may be made by the public;

(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)

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;

(G)

in carrying out subparagraph (F), consider—

(i)

incentives for innovation, consistency, predictability, flexibility, distributive impacts, and equity; and

(ii)

the costs of enforcement and compliance to the Federal Government, regulated entities, and the public;

(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—

(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

(ii)

select approaches that maximize net benefits, unless a statute requires another regulatory approach;

(I)

base decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended rule;

(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;

(K)

seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that may significantly or uniquely affect those governmental entities;

(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;

(M)

as appropriate, seek to harmonize agency action with related State, local, and tribal regulatory and other governmental functions;

(N)

avoid the promulgation of a rule that is inconsistent, incompatible, or duplicative with other rules of the agency or those of other agencies;

(O)

tailor the rule—

(i)

to impose the least 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 extent practicable, the costs of cumulative rules; and

(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.

.

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 an opportunity to participate in the regulatory process; and

(2)

to the 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.

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.

6.

Flexible approaches

Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that—

(1)

reduce burdens and maintain flexibility and freedom of choice for the public;

(2)

include warnings, appropriate default rules, and disclosure requirements; and

(3)

provide information to the public in a form that is clear and intelligible.

7.

Science

Each agency shall ensure the objectivity of any scientific and technological information and processes used to support each regulatory action of the agency.

1.

Short title

This Act may be cited as the Principled Rulemaking Act of 2015.

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.

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.

.

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.

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.

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.

September 6, 2016

Reported with an amendment