[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2801 Reported in Senate (RS)]
<DOC>
Calendar No. 672
117th CONGRESS
2d Session
S. 2801
[Report No. 117-273]
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
September 22 (legislative day, September 21), 2021
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
December 19, 2022
Reported by Mr. Peters, 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 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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Setting Manageable Analysis
Requirements in Text Act of 2021'' or the ``SMART Act of
2021''.</DELETED>
<DELETED>SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO NEW MAJOR
RULES.</DELETED>
<DELETED> (a) In General.--Subchapter II of chapter 5 of title 5,
United States Code, is amended--</DELETED>
<DELETED> (1) in section 551--</DELETED>
<DELETED> (A) in paragraph (13), by striking ``;
and'' and inserting a semicolon;</DELETED>
<DELETED> (B) in paragraph (14), by striking the
period at the end and inserting a semicolon;
and</DELETED>
<DELETED> (C) by adding at the end the
following:</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(16) `major rule' means any rule that the
Administrator finds has resulted in or is likely to result in--
</DELETED>
<DELETED> ``(A) an annual effect on the economy of
$100,000,000 or more;</DELETED>
<DELETED> ``(B) a major increase in costs or prices
for consumers, individual industries, Federal, State,
or local government agencies, or geographic regions;
or</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (2) in section 553, by adding at the end the
following:</DELETED>
<DELETED> ``(f) Major Rule Frameworks.--</DELETED>
<DELETED> ``(1) In general.--Beginning 180 days after the
date of enactment of this subsection, when an agency publishes
in the Federal Register--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(B) a final major rule, the agency shall
include a framework for assessing the major rule under
paragraph (2), which shall include--</DELETED>
<DELETED> ``(i) a statement of the
regulatory objectives of the major rule,
including a summary of the societal benefit and
cost of the major rule;</DELETED>
<DELETED> ``(ii) the methodology by which
the agency plans to analyze the major rule,
including metrics by which the agency can
measure--</DELETED>
<DELETED> ``(I) the effectiveness
and benefits of the major rule in
producing the regulatory objectives of
the major rule; and</DELETED>
<DELETED> ``(II) the effects and
costs of the major rule on regulated
and other affected entities;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(2) Assessment.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) to determine whether--
</DELETED>
<DELETED> ``(I) the major rule is
accomplishing the regulatory
objective;</DELETED>
<DELETED> ``(II) the major rule has
been rendered unnecessary, taking into
consideration--</DELETED>
<DELETED> ``(aa) changes in
the subject area affected by
the major rule; and</DELETED>
<DELETED> ``(bb) whether the
major rule overlaps,
duplicates, or conflicts with
other rules or, to the extent
feasible, State and local
government
regulations;</DELETED>
<DELETED> ``(III) the major rule
needs to be improved in order to
accomplish the regulatory objective;
and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(3) Agency head responsibilities.--The head of
each agency shall--</DELETED>
<DELETED> ``(A) oversee the timely compliance of the
agency with this subsection; and</DELETED>
<DELETED> ``(B) ensure that the results of each
assessment conducted under paragraph (2)(A) are--
</DELETED>
<DELETED> ``(i) published promptly on a
centralized Federal website; and</DELETED>
<DELETED> ``(ii) noticed in the Federal
Register in accordance with paragraph
(2)(D).</DELETED>
<DELETED> ``(4) OMB oversight.--The Administrator shall--
</DELETED>
<DELETED> ``(A) issue guidance for agencies
regarding the development of the framework under
paragraph (1) and the conduct of the assessments under
paragraph (2)(A);</DELETED>
<DELETED> ``(B) encourage and assist agencies to
streamline and coordinate the assessment of major rules
with similar or related regulatory
objectives;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(5) Rule of construction.--Nothing in this
subsection may be construed to affect--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(B) any other provision of law that
requires an agency to conduct retrospective reviews of
rules issued by the agency.</DELETED>
<DELETED> ``(6) Applicability.--</DELETED>
<DELETED> ``(A) In general.--This subsection shall
not apply to--</DELETED>
<DELETED> ``(i) a major rule of an agency--
</DELETED>
<DELETED> ``(I) that the
Administrator reviewed before the date
of enactment of this
subsection;</DELETED>
<DELETED> ``(II) for which the
agency is required to conduct a
retrospective review under--</DELETED>
<DELETED> ``(aa) section
2222 of the Economic Growth and
Regulatory Paperwork Reduction
Act of 1996 (12 U.S.C.
3311);</DELETED>
<DELETED> ``(bb) section
170(d) of the Financial
Stability Act of 2010 (12
U.S.C. 5370(d)); or</DELETED>
<DELETED> ``(cc) any other
provision of law with
requirements that the
Administrator determines--
</DELETED>
<DELETED> ``(AA)
include robust public
participation;</DELETED>
<DELETED> ``(BB)
include significant
agency consideration
and analysis of whether
the rule is achieving
the regulatory
objective of the rule;
and</DELETED>
<DELETED> ``(CC)
meet, are substantially
similar to, or exceed
the requirements of
this
subsection;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(7) Judicial review.--</DELETED>
<DELETED> ``(A) In general.--Judicial review of
agency compliance with this subsection is limited to--
</DELETED>
<DELETED> ``(i) whether an agency published
the framework for assessment of a major rule in
accordance with paragraph (1); or</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(D) Administrator.--Any determination,
action, or inaction of the Administrator shall not be
subject to judicial review.''.</DELETED>
<DELETED> (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).</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Setting Manageable Analysis
Requirements in Text Act of 2022'' or the ``SMART Act of 2022''.
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 adverse effects on competition,
employment, investment, productivity, innovation,
health, safety, the environment, or 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.--On and after the date that is 1 year
after the date of enactment of this subsection--
``(A) with respect to a proposed rule published by
an agency in the Federal Register that the agency
reasonably expects would meet the definition of a major
rule, the agency shall include a potential framework
for assessing the implemented rule, which shall include
a general statement of how the agency intends to
measure the effectiveness of the rule; and
``(B) with respect to a final major rule published
by an agency in the Federal Register, including a major
rule that the agency did not initially reasonably
expect would meet the definition of a major rule under
subparagraph (A), 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 qualitative and
quantitative outcomes of the major rule so that
the agency can assess--
``(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,
including public input, regarding the
methodology described in clause (ii) on an
ongoing basis or at periodic times; and
``(iv) a 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--
``(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
of the major rule;
``(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
expanded, streamlined, or otherwise
modified in order to accomplish the
regulatory objective of the major rule;
and
``(IV) other alternatives to the
major rule or a modification of the
major rule could better achieve the
regulatory objective of the major rule
by increasing the benefits of the major
rule or imposing a smaller burden on
society, or both, taking into
consideration any changes in the
regulatory environment that may have
made the major rule more or less
necessary or effective, and 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 notification of the
revised methodology and an explanation of the changes
in circumstances that necessitated the use of that
other methodology as part of the notice required under
subparagraph (D).
``(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,
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 of the major rule.
``(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 prominently on the website of the agency the
results of the assessment, including the circumstances
or events that would necessitate a subsequent
assessment of the major rule under subparagraph (C).
``(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) are published promptly 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--
``(i) 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);
or
``(ii) the Administrator determines that--
``(I) the final major rule falls
within a category of major rules that
are routine or periodic in nature,
including those issued on an annual
basis in order to put in place annual
spending programs; or
``(II) for any other reason, the
conduct of an assessment would be
impracticable, unnecessary, or contrary
to the public interest; 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) 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) Good cause exemption.--In the case of a major
rule for which the agency has not issued a notice of
proposed rule making, 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--
``(i) shall be strictly limited to--
``(I) whether an agency published
the framework for assessment of a major
rule described in paragraph (1); or
``(II) whether an agency published
the assessment or subsequent assessment
of a major rule described in
subparagraphs (A), (C), and (D) of
paragraph (2); and
``(ii) shall not include a substantive
review of the framework, assessment, or action
of an agency under this subsection.
``(B) Remedy available.--In granting relief in an
action brought under subparagraph (A), a 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).
Calendar No. 672
117th CONGRESS
2d Session
S. 2801
[Report No. 117-273]
_______________________________________________________________________
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.
_______________________________________________________________________
December 19, 2022
Reported with an amendment