[Senate Report 114-282]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 522
114th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      114-282
_______________________________________________________________________

                                     

                                                      


                        SMARTER REGS ACT OF 2015

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 1817

             TO IMPROVE THE EFFECTIVENESS OF MAJOR RULES IN
 ACCOMPLISHING THEIR REGULATORY OBJECTIVES BY PROMOTING RETROSPECTIVE 
                     REVIEW, AND FOR OTHER PURPOSES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 June 20, 2016.--Ordered to be printed
               
                               ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

59-010                         WASHINGTON : 2016                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
       Patrick J. Bailey, Chief Counsel for Governmental Affairs
                   Satya P. Thallam, Chief Economist
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
 Katherine C. Sybenga, Minority Chief Counsel for Governmental Affairs
                     Laura W. Kilbride, Chief Clerk







                                                      Calendar No. 522
114th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      114-282

======================================================================



 
                        SMARTER REGS ACT OF 2015

                                _______
                                

                 June 20, 2016.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 1817]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 1817) to improve 
the effectiveness of major rules in accomplishing their 
regulatory objectives by promoting retrospective review, and 
for other purposes, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.



                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................6
 VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............7

                         I. Purpose and Summary

    The purpose of S. 1817, the Smarter Regulations Through 
Advance Planning and Review Act of 2015, is to improve the 
effectiveness of major rules in accomplishing their regulatory 
objectives by requiring retrospective review. S. 1817 requires 
agencies to review the effectiveness of major rules within ten 
years of the rule becoming final. When drafting major 
regulations, agencies must prepare for these future assessments 
through formulation of a retrospective review plan. Agencies 
issuing major rules must commit to a timeframe for reviewing 
the regulation, a plan for that review, and the metrics they 
will collect to facilitate that review while taking into 
account the burden to the public in providing that information.

              II. Background and Need for the Legislation

    Every president since President Carter has initiated some 
type of retrospective review or ``lookback'' of existing 
regulations to identify regulations that are no longer 
necessary to achieve intended goals or otherwise require 
updating to address current circumstances.\1\ In Executive 
Orders 13563\2\ and 13610,\3\ President Obama directed agencies 
to develop and submit to the Office of Information and 
Regulatory Affairs (OIRA) a preliminary plan for ``periodic 
review of . . . existing significant regulations to determine 
whether any such regulations should be modified, streamlined, 
expanded, or repealed.''\4\ Office of Management and Budget 
(OMB) guidance has directed public participation in 
retrospective reviews, setting priorities in implementing 
retrospective review plans, and reporting on the status of 
these efforts.
---------------------------------------------------------------------------
    \1\Gov't Accountability Office, GAO-07-791, Reexamining 
Regulations: Opportunities Exist To Improve Effectiveness And 
Transparency of Retrospective Reviews 10 (2007), available at http://
www.gao.gov/new.items/d07791.pdf (``Every president since President 
Carter has directed agencies to evaluate or reconsider existing 
regulations. For example, President Carter's Executive Order 12044 
required agencies to periodically review existing rules; one charge of 
President Reagan's task force on regulatory relief was to recommend 
changes to existing regulations; President George H.W. Bush instructed 
agencies to identify existing regulations to eliminate unnecessary 
regulatory burden; and President Clinton, under section 5 of Executive 
Order 12866, required agencies to develop a program to `periodically 
review' existing significant regulations.'').
    \2\Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 21. 2011).
    \3\Exec. Order No. 13610, 77 Fed. Reg. 28,469 (May 10, 2012).
    \4\Exec. Order No. 13563, supra., note 2.
---------------------------------------------------------------------------
    In subsequent guidance to agencies, OMB directed agencies 
to design and write future regulations in ways that facilitate 
evaluation of their consequences and thus promote retrospective 
analyses.\5\ However, after reviewing the progress of 
retrospective review efforts in 2014, the Government 
Accountability Office recommended that OMB, as part of its 
oversight role, strengthen compliance by confirming that 
agencies have identified how they will assess the performance 
of regulations in the future.\6\
---------------------------------------------------------------------------
    \5\Memorandum from Cass Sunstein to the Heads of Executive 
Departments and Agencies, M-11-19 (Apr. 25, 2011). The memorandum 
directed agencies to ``give careful consideration to how best to 
promote empirical testing of the effects of rules both in advance and 
retrospectively.'' Id.
    \6\Gov't Accountability Office, GAO-14-268, Agencies Often Made 
Regulatory Changes, but Could Strengthen Linkages to Performance Goals 
36 (2014), available at http://www.gao.gov/assets/670/662517.pdf.
---------------------------------------------------------------------------
    The Administrative Conference of the United States (ACUS) 
has also recommended that agencies establish a framework, at 
the time of formulation, for reassessing regulations in the 
future.\7\ This could include considering methodology, 
measurable outcomes, a plan for gathering data, key assumptions 
in the underlying regulatory impact analysis, ``a target 
timeframe or frequency'' for reassessment, and ``a discussion 
of how the public and other government agencies . . . will be 
involved in the review.''\8\ A comprehensive look at 
retrospective review efforts conducted as part of the ACUS 
recommendations found that ``integrating ex post analysis into 
the design of a new rule can make future ex post review more 
efficient (thus requiring fewer staff resources) and break down 
the dichotomy and tension between looking back and looking 
forward. In effect, it would make looking back part of 
improving the quality of looking forward.''\9\ Indeed, there is 
evidence that there are quality-enhancing effects of 
retrospective review of existing rules which redound to the 
prospective analysis of new rules.\10\
---------------------------------------------------------------------------
    \7\Admin. Conference of the U.S., Recommendation, Retrospective 
Review of Agency Rules, 2014-5 (Dec. 9, 2014).
    \8\Id.
    \9\Joseph Aldy, Learning from Experience: An Assessment of the 
Retrospective Reviews of Agency Rules and the Evidence for Improving 
the Design and Implementation of Regulatory Policy, 62 Admin. 
Conference of the U.S. (Nov. 17, 2014).
    \10\Jerry Ellig and Rosemarie Fike, Regulatory Process, Regulatory 
Reform, and the Quality of Regulatory Impact Analysis, Working Paper 
No. 13-13, Mercatus Ctr. at George Mason Univ. (2013) (Reports the 
results of an empirical inquiry which indicates that requirements for 
agency review of a rule is ``associated with higher-quality analysis'' 
and even ``relatively weak requirements in some existing laws are 
correlated with better analysis of prospective regulations.'').
---------------------------------------------------------------------------
    The American Bar Association (ABA) Section of 
Administrative Law and Regulatory Practice recently adopted a 
resolution urging Congress to make multiple reforms to the 
Administrative Procedure Act, including promoting retrospective 
review.\11\ The ABA built upon both the ACUS recommendation and 
the OMB memorandum recommending that agencies begin to include 
a plan for future assessment of the effectiveness of new major 
rules. The ABA resolved that ``such a plan should identify 
those objectives and describe information the agency believes 
will enable it to assess the effectiveness of the rule in 
accomplishing its objectives. . . . The plan should also 
describe how the agency intends to compile the relevant 
information over time.''\12\ A similar reform was suggested 
directly to members of the Committee on Homeland Security and 
Governmental Affairs's Subcommittee on Regulatory Affairs and 
Federal Management by Michael Greenstore, a former advisor to 
President Obama, who also emphasized the need for an 
enforcement mechanism to encourage agency compliance.\13\ This 
suggested reform would require agencies to announce a timetable 
for review of a regulation, pre-specify expected benefits and 
costs and identify how these benefits and costs would be 
measured, such as the types of data and other information that 
it anticipates being necessary for review.\14\ Mr. Greenstone 
further suggested that these efforts would be strengthened if 
they were accompanied by a triggering mechanism, such as public 
announcement of deadlines for review as well as judicial action 
to compel reviews and rulemaking.\15\
---------------------------------------------------------------------------
    \11\Am. Bar Assoc. Section on Admin. Law & Reg. Practice, 106B, 
Resolution by the House of Delegates (Feb. 8, 2016).
    \12\Id.
    \13\Examining Practical Solutions to Improve the Federal Regulatory 
Process: Roundtable Before the S. Homeland Sec. & Governmental Affairs 
Subcomm. on Regulatory Affairs & Fed. Mgmt., 114th Cong. (2015) 
(statement of Michael Greenstone).
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    A former Administrator of OIRA summed up the centrality of 
retrospective review to the larger project of regulatory 
improvement and reform:

          When agencies issue rules, they have to speculate 
        about benefits and costs. After rules are in place, 
        they should test those speculations, and they should 
        use what they learn when revisiting a regulation or 
        issuing a new one. This is a central point for the 
        future of regulatory reform. Indeed, it is one of the 
        most important steps imaginable, not least because it 
        can reduce cumulative burdens and promote the goal of 
        simplification.\16\
---------------------------------------------------------------------------
    \16\Cass R. Sunstein, The Regulatory Lookback, 94 B.U.L. Rev. 579, 
591 (2014).

    To better understand the current state of agency 
implementation of the Administration's retrospective review 
priorities, the Committee held a hearing and conducted 
briefings with agency officials directly involved in regulatory 
retrospective review efforts at five agencies: the Departments 
of Agriculture (USDA), Interior (DOI), Labor, the Environmental 
Protection Agency, and the Pension Benefit Guaranty 
Corporation.\17\ It was clear from those briefings and agency 
progress reports that their efforts had resulted in few 
completed reviews since the 2011 executive orders and that 
better data and more planning would allow agencies to conduct 
better reviews.\18\ Some agencies reported that their efforts 
had resulted in few completed reviews, and, for the most part, 
agency officials attributed this record to competing priorities 
and internal resource constraints.\19\ DOI officials expressed 
concern about the resources required to conduct benefit-cost 
analysis as part of retrospective reviews and stated that 
necessary data to conduct these types of analysis is not always 
available.\20\ Additionally, officials conceded that they have 
not acted in response to OMB directions to include plans for 
retrospective review in new rules.\21\ USDA staff noted that 
planning for retrospective reviews as they draft new 
regulations is ``evolving'' and that regulatory analytical 
capacity within each USDA agency varies.\22\
---------------------------------------------------------------------------
    \17\Agency Progress in Retrospective Review of Existing 
Regulations: Hearing Before the S. Comm. on Homeland Sec. & 
Governmental Affairs Subcomm. on Regulatory Affairs & Fed. Mgmt., 114th 
Cong. (2015); Briefing from the Department of Interior to Subcomm. 
staff (July 17, 2015); Briefing from the Department of Agriculture to 
Subcomm. staff (July 30, 2015); Briefing from the Environmental 
Protection Agency to Subcomm. Staff (July 15, 2015); and Briefing from 
the Pension Benefit Guaranty Corporation to Subcomm. staff (July 7, 
2015).
    \18\Id.
    \19\Id.
    \20\Id.
    \21\Id.
    \22\Id.
---------------------------------------------------------------------------
    By going beyond the directives of an executive order, and 
requiring in statute that a prospective plan for retrospective 
review be ``built in'' to the most significant and costly 
regulations, this legislation addresses key deficiencies in the 
current approach. First, it requires agencies to commit to a 
timeline for that review, rather than prolonging a review plan 
due to competing priorities. Secondly, it furnishes agencies 
with the data they need to conduct a thorough assessment of the 
efficacy of the rule. Above all, it establishes meaningful 
retrospective review as not merely a preference among many, but 
indeed a requirement that agencies will need to comply with by 
law.
    In a recent hearing before the Committee's Subcommittee on 
Regulatory Affairs and Federal Management, the current OIRA 
Administrator, discussing the importance of retrospective 
review efforts, stated that ``accountability is one of the 
really important things in any regulatory system and I think 
asking an agency to account for how its rule has actually 
operated, and whether it's achieving its goals is an important 
objective.''\23\ S. 1817 will promote a culture of 
accountability via retrospective review that will influence 
every stage of the rulemaking process and result in more 
efficient and effective rules.
---------------------------------------------------------------------------
    \23\Reviewing the Office of Information and Regulatory Affairs' 
Role in the Regulatory Process: Hearing Before the S. Comm. on Homeland 
Sec. & Governmental Affairs Subcomm. on Regulatory Affairs & Fed. 
Mgmt., 21, 114th Cong. (2015) (statement of Hon. Howard Shelanski).
---------------------------------------------------------------------------

                        III. Legislative History

    Senator Heidi Heitkamp (D-ND) introduced S. 1817 on July 
21, 2015 with Senator James Lankford (R-OK). The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs. Senators Kelly Ayotte (R-NH), Mark Warner (D-VA), and 
Joni Ernst (R-IA) later joined as co-sponsors of the bill. The 
Committee considered S. 1817 at an October 7, 2015 business 
meeting.
    During the business meeting, Senator Heitkamp offered a 
substitute amendment with clarifying language including 
allowing flexibility in the methodology used to assess a 
covered regulation, exemption by the Administrator of OIRA of 
subsequent assessments in certain circumstances, exemption from 
and extension of deadlines for the overall framework for 
certain rules, additional language on applicability, and 
language outlining the scope of judicial review. The substitute 
amendment was adopted by voice vote with Senators Johnson, 
Portman, Lankford, Enzi, Ernst, Sasse, Carper, McCaskill, 
Baldwin, Heitkamp, and Booker present.
    The Committee ordered S. 1817, as amended, reported 
favorably on October 7, 2015, by voice vote with Senators 
Johnson, Portman, Lankford, Enzi, Ernst, Sasse, Carper, 
McCaskill, Baldwin, Heitkamp, and Booker present.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section provides the bill's short title, the ``Smarter 
Regulations Through Advance Planning and Review Act of 2015'' 
or the ``Smarter Regs Act of 2015.''

Section 2. Incorporating retrospective review into new major rules

    Subsection (a)(1) adds to Federal law definitions of the 
terms ``Administrator'' (as the Administrator of OIRA) and 
``major rule'' (as any rule that the OIRA Administrator 
determines is likely to impose annual economic effects of 
$100,000,000 or more, or cause similar deleterious economic 
effects).
    Subsection (a)(2) adds a new subsection 553(f) to Federal 
law on major rule frameworks. Subparagraph (f)(1) describes the 
``framework for assessing the major rule'' required for both 
proposed and final major rules. For a final major rule, this 
framework includes a clear statement of regulatory intent, 
summary of costs and benefits, intended methodology and metrics 
to use in assessment, plan for data collection, and a timeframe 
of less than ten years for conducting the assessment.
    New subparagraph (f)(2) outlines the assessment agencies 
must conduct in service of retrospective review. Subparagraph 
(f)(2)(A) stipulates that the agency will use the data 
collected and the methodology it included in the rule framework 
to determine whether the major rule ``is accomplishing its 
regulatory objective,'' ``has been rendered unnecessary,'' 
``needs to be strengthened,'' or otherwise modified to ``better 
achieve the regulatory objective while imposing a smaller 
burden.'' Subparagraph (f)(2)(A) does not require a new 
regulatory Cost-Benefit Analysis as would be done at the 
proposed or final rule stage, but does require agencies to 
analyze how ``actual benefits and costs of the major rule may 
have varied from those anticipated.'' Subparagraph (f)(2)(B) 
provides a procedure whereby an agency can use a different 
methodology than that outlined in the major rule framework. 
Subparagraph (f)(2)(C) describes the requirements for 
subsequent reassessments for rules the agency determines should 
remain in effect. This includes the authority of the 
Administrator of OIRA to exempt certain rules from these 
requirements. Subparagraph (f)(2)(D) requires that the agency 
publish the results of a major rule assessment, including the 
time frame for subsequent assessment, in the Federal Register 
within 180 days.
    A new subparagraph (f)(3) delineates required oversight by 
the Administrator of OIRA, including issuing guidance to 
agencies, overseeing timely compliance (including publication 
online and in the Federal Register), providing assistance in 
streamlining of major rule assessments, issuing exemptions for 
rules that did not require a notice of proposed rulemaking or 
that involve an emergency situation, or issuing an extension of 
requirement deadlines in response to sufficient agency 
justification.
    A new subparagraph (f)(4) clarifies that this subsection 
does not limit an agency's authority to ``assess or modify'' a 
major rule ahead of the specified time frame.
    A new subparagraph (f)(5) clarifies that the bill does not 
apply to major rules reviewed by the Administrator of OIRA 
prior to the bill's date of enactment or to agencies with 
existing retrospective review requirements that meet or exceed 
those in this act. It also does not apply to interpretative 
rules, statements of policy, rules of agency procedure, and 
administrative rules. This subparagraph also states that for 
major rules ``for which an agency is not required to issue a 
notice of proposed rule making in response to an emergency or . 
. . deadline, the agency shall publish the'' required framework 
within six months.
    A new subparagraph (f)(6) describes the scope for judicial 
review, which includes ``whether an agency published the 
framework for assessment'' or ``whether an agency completed'' 
the required assessment. The reviewing court may remand the 
rule to the agency to comply with the framework established for 
assessment or the requirement for the assessment itself. 
Notwithstanding a court order, the rule under review will take 
effect. The decisions and actions of the Administrator of OIRA 
will not be subject to review.
    Subsection 2(b) authorizes ``to be appropriated such sums 
as may be necessary to carry out the amendments made by 
subsection (a).

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                     June 13, 2016.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1817, the Smarter 
Regs Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 1817--Smarter Regs Act of 2015

    S. 1817 would require agencies to conduct retrospective 
reviews of major rules they issue beginning 180 days after 
enactment of the bill. Under the bill, major rules would 
include all regulations that are likely to result in an annual 
effect on the economy of $100 million or more; a major increase 
in prices or costs for consumers, industry, government agencies 
or individual regions; or a significant impact on U.S. 
companies that compete with foreign companies.
    CBO estimates that implementing S. 1817 would have no 
significant cost over the next five years. Most of the 
provisions of the bill would codify and expand on a number of 
Executive Orders, most recently Executive Order 13563 which set 
the framework for agencies to review existing regulations. 
According to information from the Office of Management and 
Budget, agencies are already responsible for reviewing 
regulations. CBO expects that under S. 1817 there could be some 
change in the methods used to review new regulations, but we 
estimate there would be no significant effect on spending.
    The bill could affect direct spending by agencies not 
funded though annual appropriations; therefore pay-as-you-go 
procedures apply. CBO estimates, however, that any net increase 
in spending by those agencies would be negligible. Enacting S. 
1817 would not affect revenues.
    CBO estimates that enacting S. 1817 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    S. 1817 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1817 as reported are shown as follows (existing law proposed 
to be omitted is enclosed in brackets, new matter is printed in 
italic, and existing law in which no change is proposed is 
shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *



CHAPTER 5--ADMINISTRATIVE PROCEDURE

           *       *       *       *       *       *       *



Subchapter II--Administrative Procedure

           *       *       *       *       *       *       *



SEC. 551. DEFINITIONS.

          (1) * * *

           *       *       *       *       *       *       *

          (13) ``agency action'' includes the whole or a part 
        of an agency rule, order, license, sanction, relief, or 
        the equivalent or denial thereof, or failure to act[; 
        and];
          (14) ``ex parte communication'' means an oral or 
        written communication not on the public record with 
        respect to which reasonable prior notice to all parties 
        is not given, but it shall not include requests for 
        status reports on any matter or proceeding covered by 
        this subchapter[.];
          (15) ``Administrator'' means the Administrator of the 
        Office of Information and Regulatory Affairs of the 
        Office of Management and Budget; 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 for consumers, individual industries, 
                Federal, State, or local government agencies, 
                or geographic regions; or
                  (C) significant adverse effect on 
                competition, employment, investment, 
                productivity, innovation, or on the ability of 
                United States-based enterprises to compete with 
                foreign-based enterprises in domestic and 
                export markets.

           *       *       *       *       *       *       *


SEC. 553. RULE MAKING.

    (a) * * *

           *       *       *       *       *       *       *

    (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, 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 clear 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 impacts, including 
                                any costs, of the major rule on 
                                regulated and other impacted 
                                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, 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 collected 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 better determine whether the regulatory 
                objective was achieved, with respect to a 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 its 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 strengthened in order to 
                                accomplish the regulatory 
                                objective; and
                                  (IV) other alternatives to 
                                the major rule or 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 necessitated the use of 
                that other methodology.
                  (C) Subsequent assessments.--
                          (i) In general.--Except as provided 
                        in clause (ii), 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) determine 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 
                                another assessment of the major 
                                rule in accordance with 
                                subparagraph (A); and
                                  (II) if the assessment 
                                conducted under subclause (I) 
                                does not result in a repeal of 
                                the major rule, periodically 
                                assess the major rule in 
                                accordance with subparagraph 
                                (A) to ensure the major rule 
                                continues to meet the 
                                regulatory objective.
                          (ii) Exemption.--The Administrator 
                        may exempt an agency from conducting a 
                        subsequent assessment of a major rule 
                        under clause (i) if the Administrator 
                        determines that there is a foreseeable 
                        and apparent need for the major rule 
                        beyond the time frame required under 
                        clause (i)(I).
                  (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 
                of the major rule under subparagraph (C)(i), if 
                applicable.
          (3) 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) oversee the timely compliance of agencies 
                with this subsection;
                  (C) 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);
                  (D) encourage and assist agencies to 
                streamline and coordinate the assessment of 
                major rules with similar or related regulatory 
                objectives;
                  (E) 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 (5)(B); and
                  (F) extend the deadline specified by an 
                agency for an assessment of a major rule under 
                paragraph (1)(B)(iv) or paragraph (2)(C)(i)(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.
          (4) Rule of construction.--Nothing in this subsection 
        shall 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.
          (5) 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; 
                                or
                                  (II) for which the agency is 
                                required to conduct a 
                                retrospective review under any 
                                other provision of law that 
                                meets or exceeds the 
                                requirements of this 
                                subsection, as determined by 
                                the Administrator;
                          (ii) interpretative rules, general 
                        statements of policy, or rules of 
                        agency organization, procedure, or 
                        practice; or
                          (iii) routine and administrative 
                        rules.
                  (B) Direct and interim final major rule.--In 
                the case of a major rule of an agency 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.
          (6) 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 of a 
                        major rule in accordance with 
                        subparagraphs (A) 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) and (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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