[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1420 Introduced in Senate (IS)]
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116th CONGRESS
1st Session
S. 1420
To amend title 5, United States Code, to improve the effectiveness of
major rules in accomplishing their regulatory objectives by promoting
retrospective review, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 13, 2019
Ms. Sinema (for herself and 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 improve the effectiveness of
major rules in accomplishing their regulatory objectives by promoting
retrospective review, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Setting Manageable Analysis
Requirements in Text Act of 2019'' or the ``SMART Act of 2019''.
SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO NEW MAJOR RULES.
(a) In General.--Subchapter II of chapter 5 of title 5, United
States Code, is amended--
(1) in section 551--
(A) in paragraph (13), by striking ``; and'' and
inserting a semicolon;
(B) in paragraph (14), by striking the period at
the end and inserting a semicolon; and
(C) by adding at the end the following:
``(15) `Administrator' means the Administrator of the
Office of Information and Regulatory Affairs of the Office of
Management and Budget established under section 3503 of title
44 and any successor to that office; and
``(16) `major rule' means any rule that the Administrator
finds has resulted in or is likely to result in--
``(A) an annual effect on the economy of
$100,000,000 or more;
``(B) a major increase in costs or prices for
consumers, individual industries, Federal, State, or
local government agencies, or geographic regions; or
``(C) significant effects on competition,
employment, investment, productivity, innovation,
health, safety, the environment, or on the ability of
United States-based enterprises to compete with
foreign-based enterprises in domestic and export
markets.''; and
(2) in section 553, by adding at the end the following:
``(f) Major Rule Frameworks.--
``(1) In general.--Beginning 180 days after the date of
enactment of this subsection, when an agency publishes in the
Federal Register--
``(A) a proposed major rule, the agency shall
include a potential framework for assessing the major
rule, which shall include a general statement of how
the agency intends to measure the effectiveness of the
major rule; or
``(B) a final major rule, the agency shall include
a framework for assessing the major rule under
paragraph (2), which shall include--
``(i) a statement of the regulatory
objectives of the major rule, including a
summary of the societal benefit and cost of the
major rule;
``(ii) the methodology by which the agency
plans to analyze the major rule, including
metrics by which the agency can measure--
``(I) the effectiveness and
benefits of the major rule in producing
the regulatory objectives of the major
rule; and
``(II) the effects and costs of the
major rule on regulated and other
affected entities;
``(iii) a plan for gathering data regarding
the metrics described in clause (ii) on an
ongoing basis, or at periodic times, including
a method by which the agency will invite the
public to participate in the review process and
seek input from other agencies; and
``(iv) a specific time frame, as
appropriate to the major rule and not more than
10 years after the effective date of the major
rule, under which the agency shall conduct the
assessment of the major rule in accordance with
paragraph (2)(A).
``(2) Assessment.--
``(A) In general.--Each agency shall assess the
data gathered under paragraph (1)(B)(iii), using the
methodology set forth in paragraph (1)(B)(ii) or any
other appropriate methodology developed after the
issuance of a final major rule to determine whether the
regulatory objective is being achieved--
``(i) to analyze how the actual benefits
and costs of the major rule may have varied
from those anticipated at the time the major
rule was issued; and
``(ii) to determine whether--
``(I) the major rule is
accomplishing the regulatory objective;
``(II) the major rule has been
rendered unnecessary, taking into
consideration--
``(aa) changes in the
subject area affected by the
major rule; and
``(bb) whether the major
rule overlaps, duplicates, or
conflicts with other rules or,
to the extent feasible, State
and local government
regulations;
``(III) the major rule needs to be
improved in order to accomplish the
regulatory objective; and
``(IV) other alternatives to the
major rule or a modification of the
major rule could better achieve the
regulatory objective while imposing a
smaller burden on society or increase
net benefits, taking into consideration
any cost already incurred.
``(B) Different methodology.--If an agency uses a
methodology other than the methodology set forth in
paragraph (1)(B)(ii) to assess data under subparagraph
(A), the agency shall include as part of the notice
required under subparagraph (D) an explanation of the
changes in circumstances that militated the use of that
other methodology.
``(C) Subsequent assessments.--If, after an
assessment of a major rule under subparagraph (A), an
agency determines that the major rule will remain in
effect with or without modification, the agency shall--
``(i) in consultation with the
Administrator, include with the assessment
produced under subparagraph (A) a list of
circumstances or events that would necessitate
a subsequent review in accordance with
subparagraph (A) to ensure that the major rule
continues to meet the regulatory objective; and
``(ii) develop a mechanism for the public
to petition for a subsequent review of the
major rule, which the head of the agency shall
grant or deny.
``(D) Publication.--Not later than 180 days after
the date on which an agency completes an assessment of
a major rule under subparagraph (A), the agency shall
publish a notice of availability of the results of the
assessment in the Federal Register, including the
specific circumstances or events that would necessitate
a subsequent assessment of the major rule under
subparagraph (C)(i).
``(3) Agency head responsibilities.--The head of each
agency shall--
``(A) oversee the timely compliance of the agency
with this subsection; and
``(B) ensure that the results of each assessment
conducted under paragraph (2)(A) are--
``(i) published promptly on a centralized
Federal website; and
``(ii) noticed in the Federal Register in
accordance with paragraph (2)(D).
``(4) OMB oversight.--The Administrator shall--
``(A) issue guidance for agencies regarding the
development of the framework under paragraph (1) and
the conduct of the assessments under paragraph (2)(A);
``(B) encourage and assist agencies to streamline
and coordinate the assessment of major rules with
similar or related regulatory objectives;
``(C) exempt an agency from including the framework
required under paragraph (1)(B) when publishing a final
major rule, if the agency did not issue a notice of
proposed rule making for the major rule in order to
provide a timely response to an emergency or comply
with a statutorily imposed deadline, in accordance with
paragraph (6)(B); and
``(D) extend the deadline specified by an agency
for an assessment of a major rule under paragraph
(1)(B)(iv) or paragraph (2)(C)(i) for a period of not
more than 90 days if the agency justifies why the
agency is unable to complete the assessment by that
deadline.
``(5) Rule of construction.--Nothing in this subsection may
be construed to affect--
``(A) the authority of an agency to assess or
modify a major rule of the agency earlier than the end
of the time frame specified for the major rule under
paragraph (1)(B)(iv); or
``(B) any other provision of law that requires an
agency to conduct retrospective reviews of rules issued
by the agency.
``(6) Applicability.--
``(A) In general.--This subsection shall not apply
to--
``(i) a major rule of an agency--
``(I) that the Administrator
reviewed before the date of enactment
of this subsection;
``(II) for which the agency is
required to conduct a retrospective
review under--
``(aa) section 2222 of the
Economic Growth and Regulatory
Paperwork Reduction Act of 1996
(12 U.S.C. 3311);
``(bb) section 170(d) of
the Financial Stability Act of
2010 (12 U.S.C. 5370(d)); or
``(cc) any other provision
of law with requirements that
the Administrator determines--
``(AA) include
robust public
participation;
``(BB) include
significant agency
consideration and
analysis of whether the
rule is achieving the
regulatory objective of
the rule; and
``(CC) meet, are
substantially similar
to, or exceed the
requirements of this
subsection;
``(III) for which the authorizing
statute of the rule is subject to
periodic authorization by Congress not
less frequently than once every 10
years; or
``(IV) for which the authorizing
statute of the rule requires the
promulgation of a new or revised rule
not less frequently than once every 10
years; or
``(ii) interpretative rules, general
statements of policy, or rules of agency
organization, procedure, or practice.
``(B) Direct and interim final major rule.--In the
case of a major rule for which the agency is not
required to issue a notice of proposed rule making in
response to an emergency or a statutorily imposed
deadline, the agency shall publish the framework
required under paragraph (1)(B) in the Federal Register
not later than 6 months after the date on which the
agency publishes the final major rule.
``(7) Judicial review.--
``(A) In general.--Judicial review of agency
compliance with this subsection is limited to--
``(i) whether an agency published the
framework for assessment of a major rule in
accordance with paragraph (1); or
``(ii) whether an agency completed and
published the required assessment or subsequent
assessment of a major rule in accordance with
subparagraphs (A), (C), and (D) of paragraph
(2).
``(B) Remedy available.--In granting relief in an
action brought under subparagraph (A), the court may
only issue an order remanding the major rule to the
agency to comply with paragraph (1) or subparagraph
(A), (C), or (D) of paragraph (2), as applicable.
``(C) Effective date of major rule.--If, in an
action brought under subparagraph (A)(i), a court
determines that the agency did not comply, the major
rule shall take effect notwithstanding any order issued
by the court.
``(D) Administrator.--Any determination, action, or
inaction of the Administrator shall not be subject to
judicial review.''.
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out the amendments
made by subsection (a).
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