U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–010 

" ! SENATE 

114TH CONGRESS

2d Session 

REPORT

2016

114–282 

Calendar No. 522 

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 

JUNE 20, 2016.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

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 


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Calendar No. 522 

114TH CONGRESS SENATE REPORT " ! 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. 


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1GOV’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. 5Memorandum 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. 6GOV’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. 7 Admin. Conference of the U.S., Recommendation, Retrospective Review of Agency Rules, 

2014–5 (Dec. 9, 2014). 8 Id. 

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. 

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

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 


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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.’’). 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. 16 Cass R. Sunstein, The Regulatory Lookback, 94 B.U.L. REV. 579, 591 (2014). 

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

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

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

To better understand the current state of agency implementation 

of the Administration’s retrospective review priorities, the ComVerDate Sep 11 2014 00:31 Jun 23, 2016 Jkt 059010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR282.XXX SR282

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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. 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). 

mittee 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

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. 


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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 


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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. 


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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): 


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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— 

(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 foreignbased 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— 


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(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 

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den 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 


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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. 


emcdonald on DSK9F6TC42PROD with HEARING
12 

(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). 

Æ 


emcdonald on DSK9F6TC42PROD with HEARING