SMART Act of 2019

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 retrospec- tive 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 Secu- rity and Governmental Affairs JULY 15, 2019 Reported by Mr. JOHNSON, without amendment A BILL To amend title 5, United States Code, to improve the effec- tiveness 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1420 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Setting Manageable 2 Analysis Requirements in Text Act of 2019’’ or the 3 ‘‘SMART Act of 2019’’. 4 SEC. 2. INCORPORATING RETROSPECTIVE REVIEW INTO 5 NEW MAJOR RULES. 6 (a) IN GENERAL.—Subchapter II of chapter 5 of title 7 5, United States Code, is amended— 8 (1) in section 551— 9 (A) in paragraph (13), by striking ‘‘; and’’ 10 and inserting a semicolon; 11 (B) in paragraph (14), by striking the pe- 12 riod at the end and inserting a semicolon; and 13 (C) by adding at the end the following: 14 ‘‘(15) ‘Administrator’ means the Administrator 15 of the Office of Information and Regulatory Affairs 16 of the Office of Management and Budget established 17 under section 3503 of title 44 and any successor to 18 that office; and 19 ‘‘(16) ‘major rule’ means any rule that the Ad- 20 ministrator finds has resulted in or is likely to result 21 in— 22 ‘‘(A) an annual effect on the economy of 23 $100,000,000 or more; 24 ‘‘(B) a major increase in costs or prices for 25 consumers, individual industries, Federal, 26 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1420 RS State, or local government agencies, or geo- 1 graphic regions; or 2 ‘‘(C) significant effects on competition, em- 3 ployment, investment, productivity, innovation, 4 health, safety, the environment, or on the abil- 5 ity of United States-based enterprises to com- 6 pete with foreign-based enterprises in domestic 7 and export markets.’’; and 8 (2) in section 553, by adding at the end the fol- 9 lowing: 10 ‘‘(f) MAJOR RULE FRAMEWORKS.— 11 ‘‘(1) IN GENERAL.—Beginning 180 days after 12 the date of enactment of this subsection, when an 13 agency publishes in the Federal Register— 14 ‘‘(A) a proposed major rule, the agency 15 shall include a potential framework for assess- 16 ing the major rule, which shall include a gen- 17 eral statement of how the agency intends to 18 measure the effectiveness of the major rule; or 19 ‘‘(B) a final major rule, the agency shall 20 include a framework for assessing the major 21 rule under paragraph (2), which shall include— 22 ‘‘(i) a statement of the regulatory ob- 23 jectives of the major rule, including a sum- 24 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1420 RS mary of the societal benefit and cost of the 1 major rule; 2 ‘‘(ii) the methodology by which the 3 agency plans to analyze the major rule, in- 4 cluding metrics by which the agency can 5 measure— 6 ‘‘(I) the effectiveness and bene- 7 fits of the major rule in producing the 8 regulatory objectives of the major 9 rule; and 10 ‘‘(II) the effects and costs of the 11 major rule on regulated and other af- 12 fected entities; 13 ‘‘(iii) a plan for gathering data re- 14 garding the metrics described in clause (ii) 15 on an ongoing basis, or at periodic times, 16 including a method by which the agency 17 will invite the public to participate in the 18 review process and seek input from other 19 agencies; and 20 ‘‘(iv) a specific time frame, as appro- 21 priate to the major rule and not more than 22 10 years after the effective date of the 23 major rule, under which the agency shall 24 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1420 RS conduct the assessment of the major rule 1 in accordance with paragraph (2)(A). 2 ‘‘(2) ASSESSMENT.— 3 ‘‘(A) IN GENERAL.—Each agency shall as- 4 sess the data gathered under paragraph 5 (1)(B)(iii), using the methodology set forth in 6 paragraph (1)(B)(ii) or any other appropriate 7 methodology developed after the issuance of a 8 final major rule to determine whether the regu- 9 latory objective is being achieved— 10 ‘‘(i) to analyze how the actual benefits 11 and costs of the major rule may have var- 12 ied from those anticipated at the time the 13 major rule was issued; and 14 ‘‘(ii) to determine whether— 15 ‘‘(I) the major rule is accom- 16 plishing the regulatory objective; 17 ‘‘(II) the major rule has been 18 rendered unnecessary, taking into 19 consideration— 20 ‘‘(aa) changes in the subject 21 area affected by the major rule; 22 and 23 ‘‘(bb) whether the major 24 rule overlaps, duplicates, or con- 25 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1420 RS flicts with other rules or, to the 1 extent feasible, State and local 2 government regulations; 3 ‘‘(III) the major rule needs to be 4 improved in order to accomplish the 5 regulatory objective; and 6 ‘‘(IV) other alternatives to the 7 major rule or a modification of the 8 major rule could better achieve the 9 regulatory objective while imposing a 10 smaller burden on society or increase 11 net benefits, taking into consideration 12 any cost already incurred. 13 ‘‘(B) DIFFERENT METHODOLOGY.—If an 14 agency uses a methodology other than the 15 methodology set forth in paragraph (1)(B)(ii) 16 to assess data under subparagraph (A), the 17 agency shall include as part of the notice re- 18 quired under subparagraph (D) an explanation 19 of the changes in circumstances that militated 20 the use of that other methodology. 21 ‘‘(C) SUBSEQUENT ASSESSMENTS.—If, 22 after an assessment of a major rule under sub- 23 paragraph (A), an agency determines that the 24 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1420 RS major rule will remain in effect with or without 1 modification, the agency shall— 2 ‘‘(i) in consultation with the Adminis- 3 trator, include with the assessment pro- 4 duced under subparagraph (A) a list of cir- 5 cumstances or events that would neces- 6 sitate a subsequent review in accordance 7 with subparagraph (A) to ensure that the 8 major rule continues to meet the regu- 9 latory objective; and 10 ‘‘(ii) develop a mechanism for the 11 public to petition for a subsequent review 12 of the major rule, which the head of the 13 agency shall grant or deny. 14 ‘‘(D) PUBLICATION.—Not later than 180 15 days after the date on which an agency com- 16 pletes an assessment of a major rule under sub- 17 paragraph (A), the agency shall publish a notice 18 of availability of the results of the assessment 19 in the Federal Register, including the specific 20 circumstances or events that would necessitate 21 a subsequent assessment of the major rule 22 under subparagraph (C)(i). 23 ‘‘(3) AGENCY HEAD RESPONSIBILITIES.—The 24 head of each agency shall— 25 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1420 RS ‘‘(A) oversee the timely compliance of the 1 agency with this subsection; and 2 ‘‘(B) ensure that the results of each as- 3 sessment conducted under paragraph (2)(A) 4 are— 5 ‘‘(i) published promptly on a central- 6 ized Federal website; and 7 ‘‘(ii) noticed in the Federal Register 8 in accordance with paragraph (2)(D). 9 ‘‘(4) OMB OVERSIGHT.—The Administrator 10 shall— 11 ‘‘(A) issue guidance for agencies regarding 12 the development of the framework under para- 13 graph (1) and the conduct of the assessments 14 under paragraph (2)(A); 15 ‘‘(B) encourage and assist agencies to 16 streamline and coordinate the assessment of 17 major rules with similar or related regulatory 18 objectives; 19 ‘‘(C) exempt an agency from including the 20 framework required under paragraph (1)(B) 21 when publishing a final major rule, if the agen- 22 cy did not issue a notice of proposed rule mak- 23 ing for the major rule in order to provide a 24 timely response to an emergency or comply with 25 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1420 RS a statutorily imposed deadline, in accordance 1 with paragraph (6)(B); and 2 ‘‘(D) extend the deadline specified by an 3 agency for an assessment of a major rule under 4 paragraph (1)(B)(iv) or paragraph (2)(C)(i) for 5 a period of not more than 90 days if the agency 6 justifies why the agency is unable to complete 7 the assessment by that deadline. 8 ‘‘(5) RULE OF CONSTRUCTION.—Nothing in 9 this subsection may be construed to affect— 10 ‘‘(A) the authority of an agency to assess 11 or modify a major rule of the agency earlier 12 than the end of the time frame specified for the 13 major rule under paragraph (1)(B)(iv); or 14 ‘‘(B) any other provision of law that re- 15 quires an agency to conduct retrospective re- 16 views of rules issued by the agency. 17 ‘‘(6) APPLICABILITY.— 18 ‘‘(A) IN GENERAL.—This subsection shall 19 not apply to— 20 ‘‘(i) a major rule of an agency— 21 ‘‘(I) that the Administrator re- 22 viewed before the date of enactment of 23 this subsection; 24 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1420 RS ‘‘(II) for which the agency is re- 1 quired to conduct a retrospective re- 2 view under— 3 ‘‘(aa) section 2222 of the 4 Economic Growth and Regu- 5 latory Paperwork Reduction Act 6 of 1996 (12 U.S.C. 3311); 7 ‘‘(bb) section 170(d) of the 8 Financial Stability Act of 2010 9 (12 U.S.C. 5370(d)); or 10 ‘‘(cc) any other provision of 11 law with requirements that the 12 Administrator determines— 13 ‘‘(AA) include robust 14 public participation; 15 ‘‘(BB) include signifi- 16 cant agency consideration 17 and analysis of whether the 18 rule is achieving the regu- 19 latory objective of the rule; 20 and 21 ‘‘(CC) meet, are sub- 22 stantially similar to, or ex- 23 ceed the requirements of 24 this subsection; 25 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1420 RS ‘‘(III) for which the authorizing 1 statute of the rule is subject to peri- 2 odic authorization by Congress not 3 less frequently than once every 10 4 years; or 5 ‘‘(IV) for which the authorizing 6 statute of the rule requires the pro- 7 mulgation of a new or revised rule not 8 less frequently than once every 10 9 years; or 10 ‘‘(ii) interpretative rules, general 11 statements of policy, or rules of agency or- 12 ganization, procedure, or practice. 13 ‘‘(B) DIRECT AND INTERIM FINAL MAJOR 14 RULE.—In the case of a major rule for which 15 the agency is not required to issue a notice of 16 proposed rule making in response to an emer- 17 gency or a statutorily imposed deadline, the 18 agency shall publish the framework required 19 under paragraph (1)(B) in the Federal Register 20 not later than 6 months after the date on which 21 the agency publishes the final major rule. 22 ‘‘(7) JUDICIAL REVIEW.— 23 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1420 RS ‘‘(A) IN GENERAL.—Judicial review of 1 agency compliance with this subsection is lim- 2 ited to— 3 ‘‘(i) whether an agency published the 4 framework for assessment of a major rule 5 in accordance with paragraph (1); or 6 ‘‘(ii) whether an agency completed 7 and published the required assessment or 8 subsequent assessment of a major rule in 9 accordance with subparagraphs (A), (C), 10 and (D) of paragraph (2). 11 ‘‘(B) REMEDY AVAILABLE.—In granting 12 relief in an action brought under subparagraph 13 (A), the court may only issue an order remand- 14 ing the major rule to the agency to comply with 15 paragraph (1) or subparagraph (A), (C), or (D) 16 of paragraph (2), as applicable. 17 ‘‘(C) EFFECTIVE DATE OF MAJOR RULE.— 18 If, in an action brought under subparagraph 19 (A)(i), a court determines that the agency did 20 not comply, the major rule shall take effect not- 21 withstanding any order issued by the court. 22 ‘‘(D) ADMINISTRATOR.—Any determina- 23 tion, action, or inaction of the Administrator 24 shall not be subject to judicial review.’’. 25 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 1420 RS (b) AUTHORIZATION OF APPROPRIATIONS.—There 1 are authorized to be appropriated such sums as may be 2 necessary to carry out the amendments made by sub- 3 section (a). 4 VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS Calendar No. 147 116TH CONGRESS 1ST SESSION S. 1420 [Report No. 116–55] A BILL To amend title 5, United States Code, to improve the effectiveness of major rules in accomplishing their regulatory objectives by promoting retro- spective review, and for other purposes. JULY 15, 2019 Reported without amendment VerDate Sep 11 2014 20:34 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00014 Fmt 6651 Sfmt 6651 E:\BILLS\S1420.RS S1420 pamtmann on DSKBFK8HB2PROD with BILLS