S.Amdt. 3171

SA 3171. Ms. HEITKAMP submitted an amendment intended to be proposed
to amendment SA 2953 proposed by Ms. Murkowski to the bill S. 2012, to
provide for the modernization of the energy policy of the United
States, and for other purposes; which was ordered to lie on the table;
as follows:

At the appropriate place, insert the following:

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

(a) Definitions.--In this section--
(1) the term ``Administrator'' means the Administrator of
the Office of Information and Regulatory Affairs of the
Office of Management and Budget;
(2) the terms ``agency'', ``rule'', and ``rule making''
have the meanings given those terms in section 551 of title
5, United States Code;
(3) the term ``covered major rule'' means major a rule that
is promulgated by an agency in accordance with authority
provided under this Act or any amendments made by this Act;
and
(4) the term ``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.
(b) Major Rule Frameworks.--
(1) In general.--Beginning 180 days after the date of
enactment of this Act, when an agency publishes in the
Federal Register--
(A) a proposed covered major rule, the agency shall include
a clear statement of the regulatory objectives of the covered
major rule and a general description of how the agency
intends to measure the effectiveness of the covered major
rule; or
(B) a final covered major rule, the agency shall include a
framework for assessing the covered major rule under
paragraph (2), which shall include--
(i) a clear statement of the regulatory objectives of the
covered major rule, including a summary of the societal
benefit and cost of the covered major rule;
(ii) the methodology by which the agency plans to analyze
the covered major rule, including metrics by which the agency
can measure--

(I) the effectiveness and benefits of the covered major
rule in producing the regulatory objectives of the covered
major rule; and
(II) the impacts, including any costs, of the covered 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 covered
major rule and not more than 10 years after the effective
date of the covered major rule, under which the agency shall

[[Page S441]]

conduct the assessment of the covered 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 covered
major rule to better determine whether the regulatory
objective was achieved, with respect to a covered major
rule--
(i) to analyze how the actual benefits and costs of the
covered major rule may have varied from those anticipated at
the time the covered major rule was issued; and
(ii) to determine whether--

(I) the covered major rule is accomplishing its regulatory
objective;
(II) the covered major rule has been rendered unnecessary,
taking into consideration--

(aa) changes in the subject area affected by the covered
major rule; and
(bb) whether the covered major rule overlaps, duplicates,
or conflicts with other rules or, to the extent feasible,
State and local government regulations;

(III) the covered major rule needs to be strengthened in
order to accomplish the regulatory objective; and
(IV) other alternatives to the covered major rule or
modification of the covered 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 covered major rule under
subparagraph (A), an agency determines that the covered major
rule will remain in effect with or without modification, the
agency shall--

(I) determine a specific time, as appropriate to the
covered major rule and not more than 10 years after the
publication of the results of the previous assessment, under
which the agency shall conduct another assessment of the
covered major rule in accordance with subparagraph (A); and
(II) if the assessment conducted under subclause (I) does
not result in a repeal of the covered major rule,
periodically assess the covered major rule in accordance with
subparagraph (A) to ensure the covered major rule continues
to meet the regulatory objective.

(ii) Exemption.--The Administrator may exempt an agency
from conducting a subsequent assessment of a covered major
rule under clause (i) if the Administrator determines that
there is a foreseeable and apparent need for the covered
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 covered 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 for any
subsequent assessment of the covered 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 covered 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 covered major
rule, if the agency did not issue a notice of proposed rule
making for the covered 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 covered 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
covered major rule of the agency earlier than the end of the
time frame specified for the covered 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 covered major rule of an agency 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 covered major rule.--In the
case of a covered 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 covered 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 covered major rule in accordance with
paragraph (1); and
(ii) whether an agency completed and published the required
assessment of a covered 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 covered major rule to the agency to
comply with paragraph (1) or subparagraph (A) or (D) of
paragraph (2), as applicable.
(C) Effective date of covered major rule.--If, in an action
brought under subparagraph (A)(i), a court determines that
the agency did not comply, the covered 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.
(c) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.
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