[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2801 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                S. 2801

 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

_______________________________________________________________________

                                 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 2021'' or the ``SMART Act of 2021''.

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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