SMART Act of 2022
Bill: S.2801 | Sponsor: Sen. Sinema, Kyrsten (D-AZ)
Policy area: Government Operations and Politics

Summary:
Setting Manageable Analysis Requirements in Text Act of 2022 or the SMART Act of 2022
This bill requires agencies, when publishing a proposed or final major rule, to include a framework for assessing whether the rule achieves its regulatory objective. An agency must assess a rule in the time frame included in the framework. The assessment must compare the rule's anticipated and actual benefits and costs.
The bill defines a major rule as a rule likely to cause (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

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.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Setting Manageable Analysis 
Requirements in Text Act of 2021'' or the ``SMART Act of 
2021''.</DELETED>

<DELETED>SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO NEW MAJOR 
              RULES.</DELETED>

<DELETED>    (a) In General.--Subchapter II of chapter 5 of title 5, 
United States Code, is amended--</DELETED>
        <DELETED>    (1) in section 551--</DELETED>
                <DELETED>    (A) in paragraph (13), by striking ``; 
                and'' and inserting a semicolon;</DELETED>
                <DELETED>    (B) in paragraph (14), by striking the 
                period at the end and inserting a semicolon; 
                and</DELETED>
                <DELETED>    (C) by adding at the end the 
                following:</DELETED>
        <DELETED>    ``(15) `Administrator' means the Administrator of 
        the Office of Information and Regulatory Affairs of the Office 
        of Management and Budget established under section 3503 of 
        title 44 and any successor to that office; and</DELETED>
        <DELETED>    ``(16) `major rule' means any rule that the 
        Administrator finds has resulted in or is likely to result in--
        </DELETED>
                <DELETED>    ``(A) an annual effect on the economy of 
                $100,000,000 or more;</DELETED>
                <DELETED>    ``(B) a major increase in costs or prices 
                for consumers, individual industries, Federal, State, 
                or local government agencies, or geographic regions; 
                or</DELETED>
                <DELETED>    ``(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.''; and</DELETED>
        <DELETED>    (2) in section 553, by adding at the end the 
        following:</DELETED>
<DELETED>    ``(f) Major Rule Frameworks.--</DELETED>
        <DELETED>    ``(1) In general.--Beginning 180 days after the 
        date of enactment of this subsection, when an agency publishes 
        in the Federal Register--</DELETED>
                <DELETED>    ``(A) a proposed major rule, the agency 
                shall include a potential framework for assessing the 
                major rule, which shall include a general statement of 
                how the agency intends to measure the effectiveness of 
                the major rule; or</DELETED>
                <DELETED>    ``(B) a final major rule, the agency shall 
                include a framework for assessing the major rule under 
                paragraph (2), which shall include--</DELETED>
                        <DELETED>    ``(i) a statement of the 
                        regulatory objectives of the major rule, 
                        including a summary of the societal benefit and 
                        cost of the major rule;</DELETED>
                        <DELETED>    ``(ii) the methodology by which 
                        the agency plans to analyze the major rule, 
                        including metrics by which the agency can 
                        measure--</DELETED>
                                <DELETED>    ``(I) the effectiveness 
                                and benefits of the major rule in 
                                producing the regulatory objectives of 
                                the major rule; and</DELETED>
                                <DELETED>    ``(II) the effects and 
                                costs of the major rule on regulated 
                                and other affected entities;</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(2) Assessment.--</DELETED>
                <DELETED>    ``(A) In general.--Each agency shall 
                assess the data gathered 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 determine whether 
                the regulatory objective is being achieved--</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(ii) to determine whether--
                        </DELETED>
                                <DELETED>    ``(I) the major rule is 
                                accomplishing the regulatory 
                                objective;</DELETED>
                                <DELETED>    ``(II) the major rule has 
                                been rendered unnecessary, taking into 
                                consideration--</DELETED>
                                        <DELETED>    ``(aa) changes in 
                                        the subject area affected by 
                                        the major rule; and</DELETED>
                                        <DELETED>    ``(bb) whether the 
                                        major rule overlaps, 
                                        duplicates, or conflicts with 
                                        other rules or, to the extent 
                                        feasible, State and local 
                                        government 
                                        regulations;</DELETED>
                                <DELETED>    ``(III) the major rule 
                                needs to be improved in order to 
                                accomplish the regulatory objective; 
                                and</DELETED>
                                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(C) Subsequent assessments.--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--
                </DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(3) Agency head responsibilities.--The head of 
        each agency shall--</DELETED>
                <DELETED>    ``(A) oversee the timely compliance of the 
                agency with this subsection; and</DELETED>
                <DELETED>    ``(B) ensure that the results of each 
                assessment conducted under paragraph (2)(A) are--
                </DELETED>
                        <DELETED>    ``(i) published promptly on a 
                        centralized Federal website; and</DELETED>
                        <DELETED>    ``(ii) noticed in the Federal 
                        Register in accordance with paragraph 
                        (2)(D).</DELETED>
        <DELETED>    ``(4) OMB oversight.--The Administrator shall--
        </DELETED>
                <DELETED>    ``(A) issue guidance for agencies 
                regarding the development of the framework under 
                paragraph (1) and the conduct of the assessments under 
                paragraph (2)(A);</DELETED>
                <DELETED>    ``(B) encourage and assist agencies to 
                streamline and coordinate the assessment of major rules 
                with similar or related regulatory 
                objectives;</DELETED>
                <DELETED>    ``(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</DELETED>
                <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(5) Rule of construction.--Nothing in this 
        subsection may be construed to affect--</DELETED>
                <DELETED>    ``(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</DELETED>
                <DELETED>    ``(B) any other provision of law that 
                requires an agency to conduct retrospective reviews of 
                rules issued by the agency.</DELETED>
        <DELETED>    ``(6) Applicability.--</DELETED>
                <DELETED>    ``(A) In general.--This subsection shall 
                not apply to--</DELETED>
                        <DELETED>    ``(i) a major rule of an agency--
                        </DELETED>
                                <DELETED>    ``(I) that the 
                                Administrator reviewed before the date 
                                of enactment of this 
                                subsection;</DELETED>
                                <DELETED>    ``(II) for which the 
                                agency is required to conduct a 
                                retrospective review under--</DELETED>
                                        <DELETED>    ``(aa) section 
                                        2222 of the Economic Growth and 
                                        Regulatory Paperwork Reduction 
                                        Act of 1996 (12 U.S.C. 
                                        3311);</DELETED>
                                        <DELETED>    ``(bb) section 
                                        170(d) of the Financial 
                                        Stability Act of 2010 (12 
                                        U.S.C. 5370(d)); or</DELETED>
                                        <DELETED>    ``(cc) any other 
                                        provision of law with 
                                        requirements that the 
                                        Administrator determines--
                                        </DELETED>

                                                <DELETED>    ``(AA) 
                                                include robust public 
                                                participation;</DELETED>


                                                <DELETED>    ``(BB) 
                                                include significant 
                                                agency consideration 
                                                and analysis of whether 
                                                the rule is achieving 
                                                the regulatory 
                                                objective of the rule; 
                                                and</DELETED>

                                                <DELETED>    ``(CC) 
                                                meet, are substantially 
                                                similar to, or exceed 
                                                the requirements of 
                                                this 
                                                subsection;</DELETED>

                                <DELETED>    ``(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</DELETED>
                                <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(ii) interpretative rules, 
                        general statements of policy, or rules of 
                        agency organization, procedure, or 
                        practice.</DELETED>
                <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(7) Judicial review.--</DELETED>
                <DELETED>    ``(A) In general.--Judicial review of 
                agency compliance with this subsection is limited to--
                </DELETED>
                        <DELETED>    ``(i) whether an agency published 
                        the framework for assessment of a major rule in 
                        accordance with paragraph (1); or</DELETED>
                        <DELETED>    ``(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).</DELETED>
                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(D) Administrator.--Any determination, 
                action, or inaction of the Administrator shall not be 
                subject to judicial review.''.</DELETED>
<DELETED>    (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).</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Setting Manageable Analysis 
Requirements in Text Act of 2022'' or the ``SMART Act of 2022''.

SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO NEW MAJOR RULES.

    (a) In General.--Subchapter II of chapter 5 of title 5, United 
States Code, is amended--
            (1) in section 551--
                    (A) in paragraph (13), by striking ``; and'' and 
                inserting a semicolon;
                    (B) in paragraph (14), by striking the period at 
                the end and inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(15) `Administrator' means the Administrator of the 
        Office of Information and Regulatory Affairs of the Office of 
        Management and Budget established under section 3503 of title 
        44 and any successor to that office; 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, individual industries, Federal, State, or 
                local government agencies, or geographic regions; or
                    ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, 
                health, safety, the environment, or the ability of 
                United States-based enterprises to compete with 
                foreign-based enterprises in domestic and export 
                markets.''; and
            (2) in section 553, by adding at the end the following:
    ``(f) Major Rule Frameworks.--
            ``(1) In general.--On and after the date that is 1 year 
        after the date of enactment of this subsection--
                    ``(A) with respect to a proposed rule published by 
                an agency in the Federal Register that the agency 
                reasonably expects would meet the definition of a major 
                rule, the agency shall include a potential framework 
                for assessing the implemented rule, which shall include 
                a general statement of how the agency intends to 
                measure the effectiveness of the rule; and
                    ``(B) with respect to a final major rule published 
                by an agency in the Federal Register, including a major 
                rule that the agency did not initially reasonably 
                expect would meet the definition of a major rule under 
                subparagraph (A), 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 qualitative and 
                        quantitative outcomes of the major rule so that 
                        the agency can assess--
                                    ``(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, 
                        including public input, regarding the 
                        methodology described in clause (ii) on an 
                        ongoing basis or at periodic times; and
                            ``(iv) a 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 gathered 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--
                            ``(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 
                                of the major rule;
                                    ``(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 
                                expanded, streamlined, or otherwise 
                                modified in order to accomplish the 
                                regulatory objective of the major rule; 
                                and
                                    ``(IV) other alternatives to the 
                                major rule or a modification of the 
                                major rule could better achieve the 
                                regulatory objective of the major rule 
                                by increasing the benefits of the major 
                                rule or imposing a smaller burden on 
                                society, or both, taking into 
                                consideration any changes in the 
                                regulatory environment that may have 
                                made the major rule more or less 
                                necessary or effective, and 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 notification of the 
                revised methodology and an explanation of the changes 
                in circumstances that necessitated the use of that 
                other methodology as part of the notice required under 
                subparagraph (D).
                    ``(C) Subsequent assessments.--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, 
                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 of the major rule.
                    ``(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 prominently on the website of the agency the 
                results of the assessment, including the circumstances 
                or events that would necessitate a subsequent 
                assessment of the major rule under subparagraph (C).
            ``(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) are published promptly 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--
                            ``(i) 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); 
                        or
                            ``(ii) the Administrator determines that--
                                    ``(I) the final major rule falls 
                                within a category of major rules that 
                                are routine or periodic in nature, 
                                including those issued on an annual 
                                basis in order to put in place annual 
                                spending programs; or
                                    ``(II) for any other reason, the 
                                conduct of an assessment would be 
                                impracticable, unnecessary, or contrary 
                                to the public interest; 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) 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 may 
        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;
                                    ``(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;

                                    ``(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) Good cause exemption.--In the case of a major 
                rule for which the agency has not issued a notice of 
                proposed rule making, 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--
                            ``(i) shall be strictly limited to--
                                    ``(I) whether an agency published 
                                the framework for assessment of a major 
                                rule described in paragraph (1); or
                                    ``(II) whether an agency published 
                                the assessment or subsequent assessment 
                                of a major rule described in 
                                subparagraphs (A), (C), and (D) of 
                                paragraph (2); and
                            ``(ii) shall not include a substantive 
                        review of the framework, assessment, or action 
                        of an agency under this subsection.
                    ``(B) Remedy available.--In granting relief in an 
                action brought under subparagraph (A), a 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).
                                                       Calendar No. 672

117th CONGRESS

  2d Session

                                S. 2801

                          [Report No. 117-273]

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