II 

117TH CONGRESS 

1ST SESSION S. 2801 

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. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 22 (legislative day, SEPTEMBER 21), 2021 

Ms. SINEMA (for herself and Mr. LANKFORD) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

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. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Setting Manageable 

5 Analysis Requirements in Text Act of 2021’’ or the 

6 ‘‘SMART Act of 2021’’. 


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1 SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO 

2 NEW MAJOR RULES. 

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

4 5, United States Code, is amended— 

5 (1) in section 551— 

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

7 and inserting a semicolon; 

8 (B) in paragraph (14), by striking the pe9 riod at the end and inserting a semicolon; and 

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

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

12 of the Office of Information and Regulatory Affairs 

13 of the Office of Management and Budget established 

14 under section 3503 of title 44 and any successor to 

15 that office; and 

16 ‘‘(16) ‘major rule’ means any rule that the Ad17 ministrator finds has resulted in or is likely to result 

18 in— 

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

20 $100,000,000 or more; 

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

22 consumers, individual industries, Federal, 

23 State, or local government agencies, or geo24 graphic regions; or 

25 ‘‘(C) significant effects on competition, em26 ployment, investment, productivity, innovation, 


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1 health, safety, the environment, or on the abil2 ity of United States-based enterprises to com3 pete with foreign-based enterprises in domestic 

4 and export markets.’’; and 

5 (2) in section 553, by adding at the end the fol6 lowing: 

7 ‘‘(f) MAJOR RULE FRAMEWORKS.— 

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

9 the date of enactment of this subsection, when an 

10 agency publishes in the Federal Register— 

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

12 shall include a potential framework for assess13 ing the major rule, which shall include a gen14 eral statement of how the agency intends to 

15 measure the effectiveness of the major rule; or 

16 ‘‘(B) a final major rule, the agency shall 

17 include a framework for assessing the major 

18 rule under paragraph (2), which shall include— 

19 ‘‘(i) a statement of the regulatory ob20 jectives of the major rule, including a sum21 mary of the societal benefit and cost of the 

22 major rule; 

23 ‘‘(ii) the methodology by which the 

24 agency plans to analyze the major rule, inVerDate Sep 11 2014 21:39 Sep 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2801.IS S2801

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1 cluding metrics by which the agency can 

2 measure— 

3 ‘‘(I) the effectiveness and bene4 fits of the major rule in producing the 

5 regulatory objectives of the major 

6 rule; and 

7 ‘‘(II) the effects and costs of the 

8 major rule on regulated and other af9 fected entities; 

10 ‘‘(iii) a plan for gathering data re11 garding the metrics described in clause (ii) 

12 on an ongoing basis, or at periodic times, 

13 including a method by which the agency 

14 will invite the public to participate in the 

15 review process and seek input from other 

16 agencies; and 

17 ‘‘(iv) a specific time frame, as appro18 priate to the major rule and not more than 

19 10 years after the effective date of the 

20 major rule, under which the agency shall 

21 conduct the assessment of the major rule 

22 in accordance with paragraph (2)(A). 

23 ‘‘(2) ASSESSMENT.— 

24 ‘‘(A) IN GENERAL.—Each agency shall as25 sess the data gathered under paragraph 


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

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

3 methodology developed after the issuance of a 

4 final major rule to determine whether the regu5 latory objective is being achieved— 

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

7 and costs of the major rule may have var8 ied from those anticipated at the time the 

9 major rule was issued; and 

10 ‘‘(ii) to determine whether— 

11 ‘‘(I) the major rule is accom12 plishing the regulatory objective; 

13 ‘‘(II) the major rule has been 

14 rendered unnecessary, taking into 

15 consideration— 

16 ‘‘(aa) changes in the subject 

17 area affected by the major rule; 

18 and 

19 ‘‘(bb) whether the major 

20 rule overlaps, duplicates, or con21 flicts with other rules or, to the 

22 extent feasible, State and local 

23 government regulations; 


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1 ‘‘(III) the major rule needs to be 

2 improved in order to accomplish the 

3 regulatory objective; and 

4 ‘‘(IV) other alternatives to the 

5 major rule or a modification of the 

6 major rule could better achieve the 

7 regulatory objective while imposing a 

8 smaller burden on society or increase 

9 net benefits, taking into consideration 

10 any cost already incurred. 

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

12 agency uses a methodology other than the 

13 methodology set forth in paragraph (1)(B)(ii) 

14 to assess data under subparagraph (A), the 

15 agency shall include as part of the notice re16 quired under subparagraph (D) an explanation 

17 of the changes in circumstances that militated 

18 the use of that other methodology. 

19 ‘‘(C) SUBSEQUENT ASSESSMENTS.—If, 

20 after an assessment of a major rule under sub21 paragraph (A), an agency determines that the 

22 major rule will remain in effect with or without 

23 modification, the agency shall— 

24 ‘‘(i) in consultation with the Adminis25 trator, include with the assessment proVerDate Sep 11 2014 21:39 Sep 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2801.IS S2801

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1 duced under subparagraph (A) a list of cir2 cumstances or events that would neces3 sitate a subsequent review in accordance 

4 with subparagraph (A) to ensure that the 

5 major rule continues to meet the regu6 latory objective; and 

7 ‘‘(ii) develop a mechanism for the 

8 public to petition for a subsequent review 

9 of the major rule, which the head of the 

10 agency shall grant or deny. 

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

12 days after the date on which an agency com13 pletes an assessment of a major rule under sub14 paragraph (A), the agency shall publish a notice 

15 of availability of the results of the assessment 

16 in the Federal Register, including the specific 

17 circumstances or events that would necessitate 

18 a subsequent assessment of the major rule 

19 under subparagraph (C)(i). 

20 ‘‘(3) AGENCY HEAD RESPONSIBILITIES.—The 

21 head of each agency shall— 

22 ‘‘(A) oversee the timely compliance of the 

23 agency with this subsection; and 


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1 ‘‘(B) ensure that the results of each as2 sessment conducted under paragraph (2)(A) 

3 are— 

4 ‘‘(i) published promptly on a central5 ized Federal website; and 

6 ‘‘(ii) noticed in the Federal Register 

7 in accordance with paragraph (2)(D). 

8 ‘‘(4) OMB OVERSIGHT.—The Administrator 

9 shall— 

10 ‘‘(A) issue guidance for agencies regarding 

11 the development of the framework under para12 graph (1) and the conduct of the assessments 

13 under paragraph (2)(A); 

14 ‘‘(B) encourage and assist agencies to 

15 streamline and coordinate the assessment of 

16 major rules with similar or related regulatory 

17 objectives; 

18 ‘‘(C) exempt an agency from including the 

19 framework required under paragraph (1)(B) 

20 when publishing a final major rule, if the agen21 cy did not issue a notice of proposed rule mak22 ing for the major rule in order to provide a 

23 timely response to an emergency or comply with 

24 a statutorily imposed deadline, in accordance 

25 with paragraph (6)(B); and 


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1 ‘‘(D) extend the deadline specified by an 

2 agency for an assessment of a major rule under 

3 paragraph (1)(B)(iv) or paragraph (2)(C)(i) for 

4 a period of not more than 90 days if the agency 

5 justifies why the agency is unable to complete 

6 the assessment by that deadline. 

7 ‘‘(5) RULE OF CONSTRUCTION.—Nothing in 

8 this subsection may be construed to affect— 

9 ‘‘(A) the authority of an agency to assess 

10 or modify a major rule of the agency earlier 

11 than the end of the time frame specified for the 

12 major rule under paragraph (1)(B)(iv); or 

13 ‘‘(B) any other provision of law that re14 quires an agency to conduct retrospective re15 views of rules issued by the agency. 

16 ‘‘(6) APPLICABILITY.— 

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

18 not apply to— 

19 ‘‘(i) a major rule of an agency— 

20 ‘‘(I) that the Administrator re21 viewed before the date of enactment of 

22 this subsection; 

23 ‘‘(II) for which the agency is re24 quired to conduct a retrospective re25 view under— 


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1 ‘‘(aa) section 2222 of the 

2 Economic Growth and Regu3 latory Paperwork Reduction Act 

4 of 1996 (12 U.S.C. 3311); 

5 ‘‘(bb) section 170(d) of the 

6 Financial Stability Act of 2010 

7 (12 U.S.C. 5370(d)); or 

8 ‘‘(cc) any other provision of 

9 law with requirements that the 

10 Administrator determines— 

11 ‘‘(AA) include robust 

12 public participation; 

13 ‘‘(BB) include signifi14 cant agency consideration 

15 and analysis of whether the 

16 rule is achieving the regu17 latory objective of the rule; 

18 and 

19 ‘‘(CC) meet, are sub20 stantially similar to, or ex21 ceed the requirements of 

22 this subsection; 

23 ‘‘(III) for which the authorizing 

24 statute of the rule is subject to peri25 odic authorization by Congress not 


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1 less frequently than once every 10 

2 years; or 

3 ‘‘(IV) for which the authorizing 

4 statute of the rule requires the pro5 mulgation of a new or revised rule not 

6 less frequently than once every 10 

7 years; or 

8 ‘‘(ii) interpretative rules, general 

9 statements of policy, or rules of agency or10 ganization, procedure, or practice. 

11 ‘‘(B) DIRECT AND INTERIM FINAL MAJOR

12 RULE.—In the case of a major rule for which 

13 the agency is not required to issue a notice of 

14 proposed rule making in response to an emer15 gency or a statutorily imposed deadline, the 

16 agency shall publish the framework required 

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

18 not later than 6 months after the date on which 

19 the agency publishes the final major rule. 

20 ‘‘(7) JUDICIAL REVIEW.— 

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

22 agency compliance with this subsection is lim23 ited to— 


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1 ‘‘(i) whether an agency published the 

2 framework for assessment of a major rule 

3 in accordance with paragraph (1); or 

4 ‘‘(ii) whether an agency completed 

5 and published the required assessment or 

6 subsequent assessment of a major rule in 

7 accordance with subparagraphs (A), (C), 

8 and (D) of paragraph (2). 

9 ‘‘(B) REMEDY AVAILABLE.—In granting 

10 relief in an action brought under subparagraph 

11 (A), the court may only issue an order remand12 ing the major rule to the agency to comply with 

13 paragraph (1) or subparagraph (A), (C), or (D) 

14 of paragraph (2), as applicable. 

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

16 If, in an action brought under subparagraph 

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

18 not comply, the major rule shall take effect not19 withstanding any order issued by the court. 

20 ‘‘(D) ADMINISTRATOR.—Any determina21 tion, action, or inaction of the Administrator 

22 shall not be subject to judicial review.’’. 

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). 

Æ 


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