II 

Calendar No. 147 

116TH CONGRESS 

1ST SESSION S. 1420 

[Report No. 116–55] 

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 

MAY 13, 2019 

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 

JULY 15, 2019 

Reported by Mr. JOHNSON, without amendment 

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, 


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1 SECTION 1. SHORT TITLE. 

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

3 Analysis Requirements in Text Act of 2019’’ or the 

4 ‘‘SMART Act of 2019’’. 

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 established 

18 under section 3503 of title 44 and any successor to 

19 that office; 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; 

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

26 consumers, individual industries, Federal, 


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1 State, or local government agencies, or geo2 graphic regions; or 

3 ‘‘(C) significant effects on competition, em4 ployment, investment, productivity, innovation, 

5 health, safety, the environment, or on the abil6 ity of United States-based enterprises to com7 pete with foreign-based enterprises in domestic 

8 and export markets.’’; and 

9 (2) in section 553, by adding at the end the fol10 lowing: 

11 ‘‘(f) MAJOR RULE FRAMEWORKS.— 

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

13 the date of enactment of this subsection, when an 

14 agency publishes in the Federal Register— 

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

16 shall include a potential framework for assess17 ing the major rule, which shall include a gen18 eral statement of how the agency intends to 

19 measure the effectiveness of the major rule; or 

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

21 include a framework for assessing the major 

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

23 ‘‘(i) a statement of the regulatory ob24 jectives of the major rule, including a sumVerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420

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1 mary of the societal benefit and cost of the 

2 major rule; 

3 ‘‘(ii) the methodology by which the 

4 agency plans to analyze the major rule, in5 cluding metrics by which the agency can 

6 measure— 

7 ‘‘(I) the effectiveness and bene8 fits of the major rule in producing the 

9 regulatory objectives of the major 

10 rule; and 

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

12 major rule on regulated and other af13 fected entities; 

14 ‘‘(iii) a plan for gathering data re15 garding the metrics described in clause (ii) 

16 on an ongoing basis, or at periodic times, 

17 including a method by which the agency 

18 will invite the public to participate in the 

19 review process and seek input from other 

20 agencies; and 

21 ‘‘(iv) a specific time frame, as appro22 priate to the major rule and not more than 

23 10 years after the effective date of the 

24 major rule, under which the agency shall 


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1 conduct the assessment of the major rule 

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

3 ‘‘(2) ASSESSMENT.— 

4 ‘‘(A) IN GENERAL.—Each agency shall as5 sess the data gathered under paragraph 

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

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

8 methodology developed after the issuance of a 

9 final major rule to determine whether the regu10 latory objective is being achieved— 

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

12 and costs of the major rule may have var13 ied from those anticipated at the time the 

14 major rule was issued; and 

15 ‘‘(ii) to determine whether— 

16 ‘‘(I) the major rule is accom17 plishing the regulatory objective; 

18 ‘‘(II) the major rule has been 

19 rendered unnecessary, taking into 

20 consideration— 

21 ‘‘(aa) changes in the subject 

22 area affected by the major rule; 

23 and 

24 ‘‘(bb) whether the major 

25 rule overlaps, duplicates, or conVerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420

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1 flicts with other rules or, to the 

2 extent feasible, State and local 

3 government regulations; 

4 ‘‘(III) the major rule needs to be 

5 improved in order to accomplish the 

6 regulatory objective; and 

7 ‘‘(IV) other alternatives to the 

8 major rule or a modification of the 

9 major rule could better achieve the 

10 regulatory objective while imposing a 

11 smaller burden on society or increase 

12 net benefits, taking into consideration 

13 any cost already incurred. 

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

15 agency uses a methodology other than the 

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

17 to assess data under subparagraph (A), the 

18 agency shall include as part of the notice re19 quired under subparagraph (D) an explanation 

20 of the changes in circumstances that militated 

21 the use of that other methodology. 

22 ‘‘(C) SUBSEQUENT ASSESSMENTS.—If, 

23 after an assessment 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) in consultation with the Adminis4 trator, include with the assessment pro5 duced under subparagraph (A) a list of cir6 cumstances or events that would neces7 sitate a subsequent review in accordance 

8 with subparagraph (A) to ensure that the 

9 major rule continues to meet the regu10 latory objective; and 

11 ‘‘(ii) develop a mechanism for the 

12 public to petition for a subsequent review 

13 of the major rule, which the head of the 

14 agency shall grant or deny. 

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

16 days after the date on which an agency com17 pletes an assessment of a major rule under sub18 paragraph (A), the agency shall publish a notice 

19 of availability of the results of the assessment 

20 in the Federal Register, including the specific 

21 circumstances or events that would necessitate 

22 a subsequent assessment of the major rule 

23 under subparagraph (C)(i). 

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

25 head of each agency shall— 


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

2 agency with this subsection; and 

3 ‘‘(B) ensure that the results of each as4 sessment conducted under paragraph (2)(A) 

5 are— 

6 ‘‘(i) published promptly on a central7 ized Federal website; and 

8 ‘‘(ii) noticed in the Federal Register 

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

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

11 shall— 

12 ‘‘(A) issue guidance for agencies regarding 

13 the development of the framework under para14 graph (1) and the conduct of the assessments 

15 under paragraph (2)(A); 

16 ‘‘(B) encourage and assist agencies to 

17 streamline and coordinate the assessment of 

18 major rules with similar or related regulatory 

19 objectives; 

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

21 framework required under paragraph (1)(B) 

22 when publishing a final major rule, if the agen23 cy did not issue a notice of proposed rule mak24 ing for the major rule in order to provide a 

25 timely response to an emergency or comply with 


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1 a statutorily imposed deadline, in accordance 

2 with paragraph (6)(B); and 

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

4 agency for an assessment of a major rule under 

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

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

7 justifies why the agency is unable to complete 

8 the assessment by that deadline. 

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

10 this subsection may be construed to affect— 

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

12 or modify a major rule of the agency earlier 

13 than the end of the time frame specified for the 

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

15 ‘‘(B) any other provision of law that re16 quires an agency to conduct retrospective re17 views of rules issued by the agency. 

18 ‘‘(6) APPLICABILITY.— 

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

20 not apply to— 

21 ‘‘(i) a major rule of an agency— 

22 ‘‘(I) that the Administrator re23 viewed before the date of enactment of 

24 this subsection; 


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1 ‘‘(II) for which the agency is re2 quired to conduct a retrospective re3 view under— 

4 ‘‘(aa) section 2222 of the 

5 Economic Growth and Regu6 latory Paperwork Reduction Act 

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

8 ‘‘(bb) section 170(d) of the 

9 Financial Stability Act of 2010 

10 (12 U.S.C. 5370(d)); or 

11 ‘‘(cc) any other provision of 

12 law with requirements that the 

13 Administrator determines— 

14 ‘‘(AA) include robust 

15 public participation; 

16 ‘‘(BB) include signifi17 cant agency consideration 

18 and analysis of whether the 

19 rule is achieving the regu20 latory objective of the rule; 

21 and 

22 ‘‘(CC) meet, are sub23 stantially similar to, or ex24 ceed the requirements of 

25 this subsection; 


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1 ‘‘(III) for which the authorizing 

2 statute of the rule is subject to peri3 odic authorization by Congress not 

4 less frequently than once every 10 

5 years; or 

6 ‘‘(IV) for which the authorizing 

7 statute of the rule requires the pro8 mulgation of a new or revised rule not 

9 less frequently than once every 10 

10 years; or 

11 ‘‘(ii) interpretative rules, general 

12 statements of policy, or rules of agency or13 ganization, procedure, or practice. 

14 ‘‘(B) DIRECT AND INTERIM FINAL MAJOR

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

16 the agency is not required to issue a notice of 

17 proposed rule making in response to an emer18 gency or a statutorily imposed deadline, the 

19 agency shall publish the framework required 

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

21 not later than 6 months after the date on which 

22 the agency publishes the final major rule. 

23 ‘‘(7) JUDICIAL REVIEW.— 


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

2 agency compliance with this subsection is lim3 ited to— 

4 ‘‘(i) whether an agency published the 

5 framework for assessment of a major rule 

6 in accordance with paragraph (1); or 

7 ‘‘(ii) whether an agency completed 

8 and published the required assessment or 

9 subsequent assessment of a major rule in 

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

11 and (D) of paragraph (2). 

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

13 relief in an action brought under subparagraph 

14 (A), the court may only issue an order remand15 ing the major rule to the agency to comply with 

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

17 of paragraph (2), as applicable. 

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

19 If, in an action brought under subparagraph 

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

21 not comply, the major rule shall take effect not22 withstanding any order issued by the court. 

23 ‘‘(D) ADMINISTRATOR.—Any determina24 tion, action, or inaction of the Administrator 

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


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1 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated such sums as may be 

3 necessary to carry out the amendments made by sub4 section (a). 


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Calendar No. 147 

116TH CONGRESS 

1ST SESSION S. 1420 

[Report No. 116–55] 

A BILL 

To amend title 5, United States Code, to improve 

spective review, and for other purposes. their regulatory objectives by promoting retrothe effectiveness of major rules in accomplishing 

JULY 15, 2019 

Reported without amendment 


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