II Calendar No. 522 114th CONGRESS 2d Session S. 1817 [Report No. 114–282] 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. Short title This Act may be cited as the Smarter Regulations Through Advance Planning and Review Act of 2015 or the Smarter Regs Act of 2015 . 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; 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, or on 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) Regulation-Specific Frameworks (1) In general Beginning 180 days after the date of enactment of this subsection, when an agency publishes a proposed or final major rule in the Federal Register, the agency shall include a framework for reassessing the major rule under paragraph (2), which shall include— (A) a clear statement of the regulatory objectives of the major rule, including the societal benefit and cost of the major rule; (B) 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 entities; (C) a plan for gathering data regarding the metrics described in subparagraph (B) on an ongoing basis, or at periodic times, during the implementation of the major rule, including the method by which the agency will invite the public to participate in the review process and seek input from other agencies, taking into account any burden to the public in supplying relevant data to agencies; and (D) a specific time frame, as appropriate to the major rule and not more than 10 years, under which the agency shall conduct the reassessment of the major rule in accordance with paragraph (2)(A). (2) Reassessment (A) In general Each agency shall assess the data collected under paragraph (1)(C), using the methodology set forth in paragraph (1)(B), 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; and (III) other alternatives to the major rule or modification of the major rule could achieve better results while imposing a smaller burden on society or at a lower cost, taking into consideration any cost already incurred. (B) Subsequent assessments If, after a reassessment 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, as appropriate to the major rule and not more than 10 years, under which the agency shall conduct another assessment of the major rule in accordance with subparagraph (A); and (ii) if the assessment conducted under clause (i) does not result in a repeal of the major rule, periodically reassess the major rule in accordance with subparagraph (A) to ensure the major rule continues to meet the regulatory objective. (C) Publication Not later than 180 days after the date on which an agency completes a reassessment of a major rule under subparagraph (A), the agency shall publish a notice of availability of the results of the reassessment in the Federal Register, including the specific time for any subsequent assessment of the major rule under subparagraph (B)(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 reassessments under paragraph (2)(A); (B) oversee the timely compliance of agencies with this subsection; and (C) ensure that the results of each reassessment 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)(C). (4) Rule of construction Nothing in this subsection shall be construed to affect— (A) the authority of an agency to reassess or modify a major rule of the agency earlier than the end of the time frame specified for the major rule under paragraph (1)(D); or (B) any other provision of law that requires an agency to conduct retrospective reviews of rules issued by the agency. . (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).

1. Short title This Act may be cited as the Smarter Regulations Through Advance Planning and Review Act of 2015 or the Smarter Regs Act of 2015 . 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; 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, or on 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 Beginning 180 days after the date of enactment of this subsection, when an agency publishes in the Federal Register— (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 (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 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 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 regulatory objective while imposing a smaller burden 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 in the Federal Register, including the specific time frame for any subsequent 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 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) 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).

June 20, 2016 Reported with an amendment