II 

Calendar No. 522 

114TH CONGRESS 

2D SESSION S. 1817 

[Report No. 114–282] 

To improve the effectiveness of major rules in accomplishing their regulatory 

objectives by promoting retrospective review, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 21, 2015 

Ms. HEITKAMP (for herself, Mr. LANKFORD, Mr. WARNER, Ms. AYOTTE, and 

Mrs. ERNST) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

JUNE 20, 2016 

Reported by Mr. JOHNSON, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To improve the effectiveness of major rules in accomplishing 

their regulatory objectives by promoting retrospective review, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Smarter Regulations 

3 Through Advance Planning and Review Act of 2015’’ or 

4 the ‘‘Smarter Regs Act of 2015’’. 

5 SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO 

6 NEW MAJOR RULES. 

7 (a) IN GENERAL.—Subchapter II of chapter 5 of title 

8 5, United States Code, is amended— 

9 (1) in section 551— 

10 (A) in paragraph (13), by striking ‘‘; and’’ 

11 and inserting a semicolon; 

12 (B) in paragraph (14), by striking the pe13 riod at the end and inserting a semicolon; and 

14 (C) by adding at the end the following: 

15 ‘‘(15) ‘Administrator’ means the Administrator 

16 of the Office of Information and Regulatory Affairs 

17 of the Office of Management and Budget; and 

18 ‘‘(16) ‘major rule’ means any rule that the Ad19 ministrator finds has resulted in or is likely to result 

20 in— 

21 ‘‘(A) an annual effect on the economy of 

22 $100,000,000 or more; 

23 ‘‘(B) a major increase in costs or prices for 

24 consumers, individual industries, Federal, 

25 State, or local government agencies, or geo26 graphic regions; or 


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1 ‘‘(C) significant adverse effects on competi2 tion, employment, investment, productivity, in3 novation, or on the ability of United States4 based enterprises to compete with foreign-based 

5 enterprises in domestic and export markets.’’; 

6 and 

7 (2) in section 553, by adding at the end the fol8 lowing: 

9 ‘‘(f) REGULATION-SPECIFIC FRAMEWORKS.— 

10 ‘‘(1) IN GENERAL.—Beginning 180 days after 

11 the date of enactment of this subsection, when an 

12 agency publishes a proposed or final major rule in 

13 the Federal Register, the agency shall include a 

14 framework for reassessing the major rule under 

15 paragraph (2), which shall include— 

16 ‘‘(A) a clear statement of the regulatory 

17 objectives of the major rule, including the soci18 etal benefit and cost of the major rule; 

19 ‘‘(B) the methodology by which the agency 

20 plans to analyze the major rule, including 

21 metrics by which the agency can measure— 

22 ‘‘(i) the effectiveness and benefits of 

23 the major rule in producing the regulatory 

24 objectives of the major rule; and 


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1 ‘‘(ii) the impacts, including any costs, 

2 of the major rule on regulated entities; 

3 ‘‘(C) a plan for gathering data regarding 

4 the metrics described in subparagraph (B) on 

5 an ongoing basis, or at periodic times, during 

6 the implementation of the major rule, including 

7 the method by which the agency will invite the 

8 public to participate in the review process and 

9 seek input from other agencies, taking into ac10 count any burden to the public in supplying rel11 evant data to agencies; and 

12 ‘‘(D) a specific time frame, as appropriate 

13 to the major rule and not more than 10 years, 

14 under which the agency shall conduct the reas15 sessment of the major rule in accordance with 

16 paragraph (2)(A). 

17 ‘‘(2) REASSESSMENT.— 

18 ‘‘(A) IN GENERAL.—Each agency shall as19 sess the data collected under paragraph (1)(C), 

20 using the methodology set forth in paragraph 

21 (1)(B), with respect to a major rule— 

22 ‘‘(i) to analyze how the actual benefits 

23 and costs of the major rule may have var24 ied from those anticipated at the time the 

25 major rule was issued; and 


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1 ‘‘(ii) to determine whether— 

2 ‘‘(I) the major rule is accom3 plishing its regulatory objective; 

4 ‘‘(II) the major rule has been 

5 rendered unnecessary, taking into 

6 consideration— 

7 ‘‘(aa) changes in the subject 

8 area affected by the major rule; 

9 and 

10 ‘‘(bb) whether the major 

11 rule overlaps, duplicates, or con12 flicts with other rules or, to the 

13 extent feasible, State and local 

14 government regulations; and 

15 ‘‘(III) other alternatives to the 

16 major rule or modification of the 

17 major rule could achieve better results 

18 while imposing a smaller burden on 

19 society or at a lower cost, taking into 

20 consideration any cost already in21 curred. 

22 ‘‘(B) SUBSEQUENT ASSESSMENTS.—If, 

23 after a reassessment of a major rule under sub24 paragraph (A), an agency determines that the 


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1 major rule will remain in effect with or without 

2 modification, the agency shall— 

3 ‘‘(i) determine a specific time, as ap4 propriate to the major rule and not more 

5 than 10 years, under which the agency 

6 shall conduct another assessment of the 

7 major rule in accordance with subpara8 graph (A); and 

9 ‘‘(ii) if the assessment conducted 

10 under clause (i) does not result in a repeal 

11 of the major rule, periodically reassess the 

12 major rule in accordance with subpara13 graph (A) to ensure the major rule con14 tinues to meet the regulatory objective. 

15 ‘‘(C) PUBLICATION.—Not later than 180 

16 days after the date on which an agency com17 pletes a reassessment of a major rule under 

18 subparagraph (A), the agency shall publish a 

19 notice of availability of the results of the reas20 sessment in the Federal Register, including the 

21 specific time for any subsequent assessment of 

22 the major rule under subparagraph (B)(i), if 

23 applicable. 

24 ‘‘(3) OMB OVERSIGHT.—The Administrator 

25 shall— 


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1 ‘‘(A) issue guidance for agencies regarding 

2 the development of the framework under para3 graph (1) and the conduct of the reassessments 

4 under paragraph (2)(A); 

5 ‘‘(B) oversee the timely compliance of 

6 agencies with this subsection; and 

7 ‘‘(C) ensure that the results of each reas8 sessment conducted under paragraph (2)(A) 

9 are— 

10 ‘‘(i) published promptly on a central11 ized Federal website; and 

12 ‘‘(ii) noticed in the Federal Register 

13 in accordance with paragraph (2)(C). 

14 ‘‘(4) RULE OF CONSTRUCTION.—Nothing in 

15 this subsection shall be construed to affect— 

16 ‘‘(A) the authority of an agency to reassess 

17 or modify a major rule of the agency earlier 

18 than the end of the time frame specified for the 

19 major rule under paragraph (1)(D); or 

20 ‘‘(B) any other provision of law that re21 quires an agency to conduct retrospective re22 views of rules issued by the agency.’’. 

23 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

24 are authorized to be appropriated such sums as may be 


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1 necessary to carry out the amendments made by sub2 section (a). 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Smarter Regulations 

5 Through Advance Planning and Review Act of 2015’’ or 

6 the ‘‘Smarter Regs Act of 2015’’. 

7 SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO 

8 NEW MAJOR RULES. 

9 (a) IN GENERAL.—Subchapter II of chapter 5 of title 

10 5, United States Code, is amended— 

11 (1) in section 551— 

12 (A) in paragraph (13), by striking ‘‘; and’’ 

13 and inserting a semicolon; 

14 (B) in paragraph (14), by striking the pe15 riod at the end and inserting a semicolon; and 

16 (C) by adding at the end the following: 

17 ‘‘(15) ‘Administrator’ means the Administrator 

18 of the Office of Information and Regulatory Affairs of 

19 the Office of Management and Budget; and 

20 ‘‘(16) ‘major rule’ means any rule that the Ad21 ministrator finds has resulted in or is likely to result 

22 in— 

23 ‘‘(A) an annual effect on the economy of 

24 $100,000,000 or more; 


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1 ‘‘(B) a major increase in costs or prices for 

2 consumers, individual industries, Federal, State, 

3 or local government agencies, or geographic re4 gions; or 

5 ‘‘(C) significant adverse effects on competi6 tion, employment, investment, productivity, in7 novation, or on the ability of United States8 based enterprises to compete with foreign-based 

9 enterprises in domestic and export markets.’’; 

10 and 

11 (2) in section 553, by adding at the end the fol12 lowing: 

13 ‘‘(f) MAJOR RULE FRAMEWORKS.— 

14 ‘‘(1) IN GENERAL.—Beginning 180 days after the 

15 date of enactment of this subsection, when an agency 

16 publishes in the Federal Register— 

17 ‘‘(A) a proposed major rule, the agency 

18 shall include a potential framework for assessing 

19 the major rule, which shall include a general 

20 statement of how the agency intends to measure 

21 the effectiveness of the major rule; or 

22 ‘‘(B) a final major rule, the agency shall in23 clude a framework for assessing the major rule 

24 under paragraph (2), which shall include— 


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1 ‘‘(i) a clear statement of the regulatory 

2 objectives of the major rule, including a 

3 summary of the societal benefit and cost of 

4 the major rule; 

5 ‘‘(ii) the methodology by which the 

6 agency plans to analyze the major rule, in7 cluding metrics by which the agency can 

8 measure— 

9 ‘‘(I) the effectiveness and benefits 

10 of the major rule in producing the reg11 ulatory objectives of the major rule; 

12 and 

13 ‘‘(II) the impacts, including any 

14 costs, of the major rule on regulated 

15 and other impacted entities; 

16 ‘‘(iii) a plan for gathering data re17 garding the metrics described in clause (ii) 

18 on an ongoing basis, or at periodic times, 

19 including a method by which the agency 

20 will invite the public to participate in the 

21 review process and seek input from other 

22 agencies; and 

23 ‘‘(iv) a specific time frame, as appro24 priate to the major rule and not more than 

25 10 years after the effective date of the major 


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1 rule, under which the agency shall conduct 

2 the assessment of the major rule in accord3 ance with paragraph (2)(A). 

4 ‘‘(2) ASSESSMENT.— 

5 ‘‘(A) IN GENERAL.—Each agency shall as6 sess the data collected under paragraph 

7 (1)(B)(iii), using the methodology set forth in 

8 paragraph (1)(B)(ii) or any other appropriate 

9 methodology developed after the issuance of a 

10 final major rule to better determine whether the 

11 regulatory objective was achieved, with respect to 

12 a major rule— 

13 ‘‘(i) to analyze how the actual benefits 

14 and costs of the major rule may have varied 

15 from those anticipated at the time the major 

16 rule was issued; and 

17 ‘‘(ii) to determine whether— 

18 ‘‘(I) the major rule is accom19 plishing its regulatory objective; 

20 ‘‘(II) the major rule has been ren21 dered unnecessary, taking into consid22 eration— 

23 ‘‘(aa) changes in the subject 

24 area affected by the major rule; 

25 and 


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1 ‘‘(bb) whether the major rule 

2 overlaps, duplicates, or conflicts 

3 with other rules or, to the extent 

4 feasible, State and local govern5 ment regulations; 

6 ‘‘(III) the major rule needs to be 

7 strengthened in order to accomplish the 

8 regulatory objective; and 

9 ‘‘(IV) other alternatives to the 

10 major rule or modification of the 

11 major rule could better achieve the reg12 ulatory objective while imposing a 

13 smaller burden on society or increase 

14 net benefits, taking into consideration 

15 any cost already incurred. 

16 ‘‘(B) DIFFERENT METHODOLOGY.—If an 

17 agency uses a methodology other than the meth18 odology set forth in paragraph (1)(B)(ii) to as19 sess data under subparagraph (A), the agency 

20 shall include as part of the notice required under 

21 subparagraph (D) an explanation of the changes 

22 in circumstances that necessitated the use of that 

23 other methodology. 

24 ‘‘(C) SUBSEQUENT ASSESSMENTS.— 


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1 ‘‘(i) IN GENERAL.—Except as provided 

2 in clause (ii), if, after an assessment of a 

3 major rule under subparagraph (A), an 

4 agency determines that the major rule will 

5 remain in effect with or without modifica6 tion, the agency shall— 

7 ‘‘(I) determine a specific time 

8 frame, as appropriate to the major rule 

9 and not more than 10 years after the 

10 effective date of the major rule, under 

11 which the agency shall conduct another 

12 assessment of the major rule in accord13 ance with subparagraph (A); and 

14 ‘‘(II) if the assessment conducted 

15 under subclause (I) does not result in 

16 a repeal of the major rule, periodically 

17 assess the major rule in accordance 

18 with subparagraph (A) to ensure the 

19 major rule continues to meet the regu20 latory objective. 

21 ‘‘(ii) EXEMPTION.—The Administrator 

22 may exempt an agency from conducting a 

23 subsequent assessment of a major rule under 

24 clause (i) if the Administrator determines 

25 that there is a foreseeable and apparent 


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1 need for the major rule beyond the time 

2 frame required under clause (i)(I). 

3 ‘‘(D) PUBLICATION.—Not later than 180 

4 days after the date on which an agency completes 

5 an assessment of a major rule under subpara6 graph (A), the agency shall publish a notice of 

7 availability of the results of the assessment in the 

8 Federal Register, including the specific time 

9 frame for any subsequent assessment of the major 

10 rule under subparagraph (C)(i), if applicable. 

11 ‘‘(3) OMB OVERSIGHT.—The Administrator 

12 shall— 

13 ‘‘(A) issue guidance for agencies regarding 

14 the development of the framework under para15 graph (1) and the conduct of the assessments 

16 under paragraph (2)(A); 

17 ‘‘(B) oversee the timely compliance of agen18 cies with this subsection; 

19 ‘‘(C) ensure that the results of each assess20 ment conducted under paragraph (2)(A) are— 

21 ‘‘(i) published promptly on a central22 ized Federal website; and 

23 ‘‘(ii) noticed in the Federal Register in 

24 accordance with paragraph (2)(D); 


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1 ‘‘(D) encourage and assist agencies to 

2 streamline and coordinate the assessment of 

3 major rules with similar or related regulatory 

4 objectives; 

5 ‘‘(E) exempt an agency from including the 

6 framework required under paragraph (1)(B) 

7 when publishing a final major rule, if the agency 

8 did not issue a notice of proposed rule making 

9 for the major rule in order to provide a timely 

10 response to an emergency or comply with a 

11 statutorily imposed deadline, in accordance with 

12 paragraph (5)(B); and 

13 ‘‘(F) extend the deadline specified by an 

14 agency for an assessment of a major rule under 

15 paragraph (1)(B)(iv) or paragraph (2)(C)(i)(I) 

16 for a period of not more than 90 days if the 

17 agency justifies why the agency is unable to com18 plete the assessment by that deadline. 

19 ‘‘(4) RULE OF CONSTRUCTION.—Nothing in this 

20 subsection shall be construed to affect— 

21 ‘‘(A) the authority of an agency to assess or 

22 modify a major rule of the agency earlier than 

23 the end of the time frame specified for the major 

24 rule under paragraph (1)(B)(iv); or 


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1 ‘‘(B) any other provision of law that re2 quires an agency to conduct retrospective reviews 

3 of rules issued by the agency. 

4 ‘‘(5) APPLICABILITY.— 

5 ‘‘(A) IN GENERAL.—This subsection shall 

6 not apply to— 

7 ‘‘(i) a major rule of an agency— 

8 ‘‘(I) that the Administrator re9 viewed before the date of enactment of 

10 this subsection; or 

11 ‘‘(II) for which the agency is re12 quired to conduct a retrospective re13 view under any other provision of law 

14 that meets or exceeds the requirements 

15 of this subsection, as determined by the 

16 Administrator; 

17 ‘‘(ii) interpretative rules, general state18 ments of policy, or rules of agency organiza19 tion, procedure, or practice; or 

20 ‘‘(iii) routine and administrative rules. 

21 ‘‘(B) DIRECT AND INTERIM FINAL MAJOR

22 RULE.—In the case of a major rule of an agency 

23 for which the agency is not required to issue a 

24 notice of proposed rule making in response to an 

25 emergency or a statutorily imposed deadline, the 


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1 agency shall publish the framework required 

2 under paragraph (1)(B) in the Federal Register 

3 not later than 6 months after the date on which 

4 the agency publishes the final major rule. 

5 ‘‘(6) JUDICIAL REVIEW.— 

6 ‘‘(A) IN GENERAL.—Judicial review of 

7 agency compliance with this subsection is limited 

8 to— 

9 ‘‘(i) whether an agency published the 

10 framework for assessment of a major rule in 

11 accordance with paragraph (1); or 

12 ‘‘(ii) whether an agency completed and 

13 published the required assessment of a 

14 major rule in accordance with subpara15 graphs (A) and (D) of paragraph (2). 

16 ‘‘(B) REMEDY AVAILABLE.—In granting re17 lief in an action brought under subparagraph 

18 (A), the court may only issue an order remand19 ing the major rule to the agency to comply with 

20 paragraph (1) or subparagraph (A) or (D) of 

21 paragraph (2), as applicable. 

22 ‘‘(C) EFFECTIVE DATE OF MAJOR RULE.— 

23 If, in an action brought under subparagraph 

24 (A)(i), a court determines that the agency did 


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1 not comply, the major rule shall take effect not2 withstanding any order issued by the court. 

3 ‘‘(D) ADMINISTRATOR.—Any determination, 

4 action, or inaction of the Administrator shall not 

5 be subject to judicial review.’’. 

6 (b) AUTHORIZATION OF APPROPRIATIONS.—There are 

7 authorized to be appropriated such sums as may be nec8 essary to carry out the amendments made by subsection (a). 


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Calendar No. 522 

114TH CONGRESS 

2D SESSION S. 1817 

[Report No. 114–282] 

A BILL 

To improve the effectiveness of major rules in acposes. moting retrospective review, and for other pur- complishing their regulatory objectives by proJUNE 20, 2016 

Reported with an amendment 


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