U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 116TH CONGRESS

1st Session 

REPORT

2019

116–55 

Calendar No. 147 

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 

JULY 15, 2019.—Ordered to be printed 


E:\Seals\Congress.#13
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MITT ROMNEY, Utah 

RICK SCOTT, Florida 

MICHAEL B. ENZI, Wyoming 

JOSH HAWLEY, Missouri 

GARY C. PETERS, Michigan 

THOMAS R. CARPER, Delaware 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

KYRSTEN SINEMA, Arizona 

JACKY ROSEN, Nevada 

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 reVerDate Sep 11 2014 05:16 Jul 20, 2019 Jkt 089010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR055.XXX SR055
2 

1On 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. 2Gov’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. 6Memorandum 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. 7Gov’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. 8 Admin. Conference of the U.S., Recommendation, Retrospective Review of Agency Rules, 

2014–5 (Dec. 9, 2014). 9 Id. 

view 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

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. 

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

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 

3 

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.’’). 12 Am. Bar Assoc. Section on Admin. Law & Reg. Practice, 106B, Resolution by the House of 

Delegates (Feb. 8, 2016). 13 Id. 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. 

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

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

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

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. 

4 

17 Cass R. Sunstein, The Regulatory Lookback, 94 B.U. L. Rev. 579, 591 (2014). 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. 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). 

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

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

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 

5 

25From 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. 

of accountability via retrospective review that will influence every 

stage of the rulemaking process and result in more efficient and effective rules. 

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

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 

6 

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 

7 

(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. 

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 signifiVerDate Sep 11 2014 05:16 Jul 20, 2019 Jkt 089010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR055.XXX SR055

Insert graphic folio 12 SR55.001
8 

cant 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 actø; 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 subchapterø.¿; 

(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— 

9 

(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— 

10 

(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— 

11 

(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; 

12 

(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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