[Senate Report 116-55]
[From the U.S. Government Publishing Office]


                                                   Calendar No. 147

116th Congress}                                            { Report
                                 SENATE
 1st Session  }                                            { 116-55

=====================================================================                   
                                    
                       SETTING MANAGEABLE ANALYSIS
                    REQUIREMENTS IN TEXT ACT OF 2019

                               __________

                              R E P O R T

                                 OF THE

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              TO ACCOMPANY

                                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

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


                 July 15, 2019.--Ordered to be printed
                 
                               __________
                   
                 
                 U.S. GOVERNMENT PUBLISHING OFFICE               
                         WASHINGTON : 2019                     
		           
-----------------------------------------------------------------------------------
                 
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

                Gabrielle D'Adamo Singer, Staff Director
                  Joseph C. Folio, III, Chief Counsel
                   Satya P. Thallam, Chief Economist
               David M. Weinberg, Minority Staff Director
               Zachary I. Schram, Minority Chief Counsel
          Yogin J. Kothari, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     

                                                   Calendar No. 147

116th Congress}                                            { Report
                                 SENATE
 1st Session  }                                            { 116-55

======================================================================
    
    SETTING MANAGEABLE ANALYSIS REQUIREMENTS IN TEXT ACT OF 2019

                                _______
                                

                 July 15, 2019.--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. 1420]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (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, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill 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............8

                         I. Purpose and Summary

    The purpose of S. 1420, the Setting Manageable Analysis 
Requirements in Text Act of 2019, is to improve the 
effectiveness of major rules in accomplishing their regulatory 
objectives by requiring retrospective review. S. 1420 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.\1\
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    \1\On June 20, 2016, the Committee approved S. 1817, Smarter Regs 
Act of 2015. That bill is substantially similar to S. 1420. 
Accordingly, this committee report is in large part a reproduction of 
Chairman Johnson's committee report for S. 1817, S. Rep. No. 114-282.
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              II. Background and the Need for 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.\2\ In Executive 
Orders 13563\3\ and 13610,\4\ 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.''\5\ 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.
---------------------------------------------------------------------------
    \2\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.'').
    \3\Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011).
    \4\Exec. Order No. 13610, 77 Fed. Reg. 28,469 (May 10, 2012).
    \5\Exec. Order No. 13563, supra., note 3.
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    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.\6\ 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.\7\
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    \6\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.
    \7\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.
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    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.\8\ 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.''\9\ 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.''\10\ 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.\11\
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    \8\Admin. Conference of the U.S., Recommendation, Retrospective 
Review of Agency Rules, 2014-5 (Dec. 9, 2014).
    \9\Id.
    \10\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).
    \11\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.'').
---------------------------------------------------------------------------
    In 2016, the American Bar Association (ABA) Section of 
Administrative Law and Regulatory Practice adopted a resolution 
urging Congress to make multiple reforms to the Administrative 
Procedure Act, including promoting retrospective review.\12\ 
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.''\13\
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    \12\Am. Bar Assoc. Section on Admin. Law & Reg. Practice, 106B, 
Resolution by the House of Delegates (Feb. 8, 2016).
    \13\Id.
---------------------------------------------------------------------------
    A similar reform was suggested in 2015 to the Committee on 
Homeland Security and Governmental Affairs's Subcommittee on 
Regulatory Affairs and Federal Management by Michael 
Greenstone, a former advisor to President Obama, who also 
emphasized the need for an enforcement mechanism to encourage 
agency compliance.\14\ 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.\15\ 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.\16\
---------------------------------------------------------------------------
    \14\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).
    \15\Id.
    \16\Id.
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    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.\17\
---------------------------------------------------------------------------
    \17\Cass R. Sunstein, The Regulatory Lookback, 94 B.U. L. Rev. 579, 
591 (2014).

    In the 114th Congress, in order to better understand the 
state of agency implementation of then-ongoing 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.\18\ 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.\19\ 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.\20\ 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.\21\ Additionally, officials conceded that they had 
not acted in response to OMB directions to include plans for 
retrospective review in new rules.\22\ USDA staff noted that 
planning for retrospective reviews as they draft new 
regulations was ``evolving'' and that regulatory analytical 
capacity within each USDA agency varied.\23\
---------------------------------------------------------------------------
    \18\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).
    \19\Id.
    \20\Id.
    \21\Id.
    \22\Id.
    \23\Id.
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    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 forbear 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 another hearing before the Committee's Subcommittee on 
Regulatory Affairs and Federal Management, the then-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.''\24\ S. 1420 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.
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    \24\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).
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    In a more recent hearing, former OIRA Administrators from 
both Democratic and Republican Administrations agreed regarding 
the salutary effects of enshrining a retrospective review plan 
within a rule's initial proposal and promulgation,\25\ with one 
Administrator noting specifically that S. 1420 ``can help 
ensure that regulations are . . . working as intended for the 
American people.''\26\
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    \25\From Beginning to End: An Examination of Agencies' Early Public 
Engagement and Retrospective Review: Hearing before the S. Comm. on 
Homeland Sec. & Governmental Affairs Subcomm. on Regulatory Affairs & 
Fed. Mgmt., 116th Cong. (2019).
    \26\Id., statement of Hon. Susan Dudley.
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                        III. Legislative History

    Senator Kyrsten Sinema (D-AZ) introduced S. 1420 on May 13, 
2019, with Senator James Lankford (R-OK). The bill was referred 
to the Committee on Homeland Security and Governmental Affairs. 
The Committee considered S. 1420 at a May 15, 2019 business 
meeting.
    The Committee ordered S. 1420 reported favorably on May 15, 
2019, en bloc by voice vote with Senators Johnson, Paul, 
Lankford, Scott, Peters, Carper, Hassan, and Rosen present. For 
the record only, Senators Portman, Romney, Hawley, and Sinema 
later asked to be recorded as a ``yes''' by unanimous consent.

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


Section 1. Short title

    This section provides the bill's short title, the ``Setting 
Manageable Analysis Requirements in Text Act of 2019'' or the 
``SMART Act of 2019.''

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 result in significant economic 
effects).
    Subsection (a)(2) adds a new subsection 553(f) to Federal 
law on major rule frameworks. The new subparagraph (f)(1) 
describes the ``potential 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 improved,'' 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, including consultation with the Administrator 
of OIRA to develop a list of conditions ``that would 
necessitate a subsequent review.'' 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) stipulates it is the 
responsibility of the head of an agency to ``oversee the timely 
compliance'' and public notice of the requirements of the Act.
    A new subparagraph (f)(4) delineates required oversight by 
the Administrator of OIRA, including issuing guidance to 
agencies, 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)(5) 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)(6) 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)(7) 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

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 10, 2019.
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. 1420, the SMART Act 
of 2019.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    

    S. 1420 would require agencies to conduct retrospective 
reviews of major rules they issued beginning 180 days after 
enactment. The bill defines ``major'' rules as any regulations 
that are likely to result in an annual effect on the economy of 
$100 million or more; substantially increase prices or costs 
for consumers, industry, government agencies, or individual 
regions; or significantly affect U.S. companies' ability to 
compete with foreign businesses.
    Most of the bill's provisions would codify and expand on 
existing government regulatory policies, such as Executive 
Order 13771, which expanded Executive Order 13563 and set the 
framework for federal agencies to review existing regulations. 
According to the Office of Management and Budget, agencies are 
responsible for reviewing previously issued regulations. CBO 
estimates that although S. 1420 would probably change the 
methods agencies use to review regulations, implementing the 
bill would have no significant effect on spending subject to 
appropriation over the 2019-2024 period.
    Enacting S. 1420 could affect direct spending by some 
agencies (such as the Tennessee Valley Authority) that use 
receipts from fees, the sale of goods, and other collections to 
cover operating costs. Because most of those agencies can 
adjust the amounts they collect as operating costs change, CBO 
estimates that any net change in direct spending by those 
agencies would be negligible.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. 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. 1420 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 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.

           *       *       *       *       *       *       *


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 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 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 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), and 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 
        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.
          (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; 
                                or
                                  (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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