[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3689 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3689

 To provide for additional safeguards with respect to imposing Federal 
                   mandates, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 12, 2020

 Mrs. Fischer (for herself and Mr. Lankford) introduced the following 
 bill; which was read twice and referred to the Committee on Homeland 
                   Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To provide for additional safeguards with respect to imposing Federal 
                   mandates, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Unfunded Mandates Information and 
Transparency Act of 2020''.

SEC. 2. PURPOSE.

    The purposes of this Act are--
            (1) to improve the quality of the deliberations of Congress 
        with respect to proposed Federal mandates by--
                    (A) providing Congress and the public with more 
                complete information about the effects of such 
                mandates; and
                    (B) ensuring that Congress acts on such mandates 
                only after focused deliberation on their effects; and
            (2) to enhance the ability of Congress and the public to 
        identify Federal mandates that may impose undue harm on 
        consumers, workers, employers, small businesses, private 
        property owners, and State, local, and Tribal governments.

SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE STUDIES ON POLICIES 
              INVOLVING CHANGES IN CONDITIONS OF GRANT AID.

    Section 202(g) of the Congressional Budget Act of 1974 (2 U.S.C. 
602(g)) is amended by adding at the end the following:
            ``(3) Additional studies.--At the request of any Chairman 
        or ranking member of the minority of a Committee of the Senate 
        or the House of Representatives, the Director shall conduct an 
        assessment comparing the authorized level of funding in a bill 
        or resolution to the prospective costs of carrying out any 
        changes to a condition of Federal assistance being imposed on 
        State, local, or tribal governments participating in the 
        Federal assistance program concerned or, in the case of a bill 
        or joint resolution that authorizes such sums as are necessary, 
        an assessment of an estimated level of funding compared to such 
        costs.''.

SEC. 4. CLARIFYING THE DEFINITION OF DIRECT COSTS TO REFLECT 
              CONGRESSIONAL BUDGET OFFICE PRACTICE.

    Section 421(3) of the Congressional Budget Act of 1974 (2 U.S.C. 
658(3)) is amended--
            (1) in subparagraph (A)(i), by inserting ``incur or'' 
        before ``be required''; and
            (2) in subparagraph (B), by inserting after ``to spend'' 
        the following: ``or could forgo in profits, including costs 
        passed on to consumers or other entities taking into account, 
        to the extent practicable, behavioral changes,''.

SEC. 5. EXPANDING THE SCOPE OF REPORTING REQUIREMENTS TO INCLUDE 
              REGULATIONS IMPOSED BY INDEPENDENT REGULATORY AGENCIES.

    Section 421(1) of the Congressional Budget Act of 1974 (2 U.S.C. 
658(1)) is amended by striking ``, but does not include independent 
regulatory agencies'' and inserting ``, except it does not include the 
Board of Governors of the Federal Reserve System or the Federal Open 
Market Committee''.

SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGEMENT AND BUDGET WITH 
              OFFICE OF INFORMATION AND REGULATORY AFFAIRS.

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) is 
amended--
            (1) by striking ``tribal'' each place that term appears and 
        inserting ``Tribal'';
            (2) in section 103(c) (2 U.S.C. 1511(c))--
                    (A) in the subsection heading, by striking ``Office 
                of Management and Budget'' and inserting ``Office of 
                Information and Regulatory Affairs''; and
                    (B) by striking ``Director of the Office of 
                Management and Budget'' and inserting ``Administrator 
                of the Office of Information and Regulatory Affairs'';
            (3) in section 205(c) (2 U.S.C. 1535(c))--
                    (A) in the subsection heading, by striking ``OMB''; 
                and
                    (B) by striking ``Director of the Office of 
                Management and Budget'' and inserting ``Administrator 
                of the Office of Information and Regulatory Affairs''; 
                and
            (4) in section 206 (2 U.S.C. 1536), by striking ``Director 
        of the Office of Management and Budget'' and inserting 
        ``Administrator of the Office of Information and Regulatory 
        Affairs''.

SEC. 7. APPLYING SUBSTANTIVE POINT OF ORDER TO PRIVATE SECTOR MANDATES.

    Section 425(a)(2) of the Congressional Budget Act of 1974 (2 U.S.C. 
658d(a)(2)) is amended, in the matter preceding subparagraph (A)--
            (1) by striking ``Federal intergovernmental mandates'' and 
        inserting ``Federal mandates''; and
            (2) by inserting ``or 424(b)(1)'' after ``section 
        424(a)(1)''.

SEC. 8. REGULATORY PROCESS AND PRINCIPLES.

    Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) is amended to read as follows:

``SEC. 201. REGULATORY PROCESS AND PRINCIPLES.

    ``(a) In General.--Each agency shall, unless otherwise expressly 
prohibited by law, assess the effects of Federal regulatory actions on 
State, local, and Tribal governments and the private sector (other than 
to the extent that such regulatory actions incorporate requirements 
specifically set forth in law) in accordance with the following 
principles:
            ``(1) Each agency shall identify the problem that it 
        intends to address (including, if applicable, the failures of 
        private markets or public institutions that warrant new agency 
        action) as well as assess the significance of that problem.
            ``(2) Each agency shall examine whether existing 
        regulations (or other law) have created, or contributed to, the 
        problem that a new regulation is intended to correct and 
        whether those regulations (or other law) should be modified to 
        achieve the intended goal of regulation more effectively.
            ``(3) Each agency shall identify and assess available 
        alternatives to direct regulation, including providing economic 
        incentives to encourage the desired behavior, such as user fees 
        or marketable permits, or providing information upon which 
        choices can be made by the public.
            ``(4) If an agency determines that a regulation is the best 
        available method of achieving the regulatory objective, it 
        shall design its regulations in the most cost-effective manner 
        to achieve the regulatory objective. In doing so, each agency 
        shall consider incentives for innovation, consistency, 
        predictability, the costs of enforcement and compliance (to the 
        government, regulated entities, and the public), flexibility, 
        distributive impacts, and equity.
            ``(5) Each agency shall assess both the costs and the 
        benefits of the intended regulation and, recognizing that some 
        costs and benefits are difficult to quantify, propose or adopt 
        a regulation, unless expressly prohibited by law, only upon a 
        reasoned determination that the benefits of the intended 
        regulation justify its costs.
            ``(6) Each agency shall base its decisions on the best 
        reasonably obtainable scientific, technical, economic, and 
        other information concerning the need for, and consequences of, 
        the intended regulation.
            ``(7) Each agency shall identify and assess alternative 
        forms of regulation and shall, to the extent feasible, specify 
        performance objectives, rather than specifying the behavior or 
        manner of compliance that regulated entities must adopt.
            ``(8) Each agency shall avoid regulations that are 
        inconsistent, incompatible, or duplicative with its other 
        regulations or those of other Federal agencies.
            ``(9) Each agency shall tailor its regulations to minimize 
        the costs of the cumulative impact of regulations.
            ``(10) Each agency shall draft its regulations to be simple 
        and easy to understand, with the goal of minimizing the 
        potential for uncertainty and litigation arising from such 
        uncertainty.
    ``(b) Regulatory Action Defined.--In this section, the term 
`regulatory action' means any substantive action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
advance notices of proposed rulemaking and notices of proposed 
rulemaking.''.

SEC. 9. EXPANDING THE SCOPE OF STATEMENTS TO ACCOMPANY SIGNIFICANT 
              REGULATORY ACTIONS.

    (a) In General.--Section 202(a) of the Unfunded Mandates Reform Act 
of 1995 (2 U.S.C. 1532(a)) is amended to read as follows:
    ``(a) In General.--Unless otherwise expressly prohibited by law, 
before promulgating any general notice of proposed rulemaking or any 
final rule, or within 6 months after promulgating any final rule that 
was not preceded by a general notice of proposed rulemaking, if the 
proposed rulemaking or final rule includes a Federal mandate that may 
result in an annual effect on State, local, or Tribal governments, or 
to the private sector, in the aggregate of $100,000,000 or more in any 
1 year, the agency shall prepare a written statement containing the 
following:
            ``(1) The text of the draft proposed rulemaking or final 
        rule, together with a reasonably detailed description of the 
        need for the proposed rulemaking or final rule and an 
        explanation of how the proposed rulemaking or final rule will 
        meet that need.
            ``(2) An assessment of the potential costs and benefits of 
        the proposed rulemaking or final rule, including an explanation 
        of the manner in which the proposed rulemaking or final rule is 
        consistent with a statutory requirement and avoids undue 
        interference with State, local, and Tribal governments in the 
        exercise of their governmental functions.
            ``(3) A qualitative and quantitative assessment, including 
        the underlying analysis, of benefits anticipated from the 
        proposed rulemaking or final rule (such as the promotion of the 
        efficient functioning of the economy and private markets, the 
        enhancement of health and safety, the protection of the natural 
        environment, and the elimination or reduction of discrimination 
        or bias).
            ``(4) A qualitative and quantitative assessment, including 
        the underlying analysis, of costs anticipated from the proposed 
        rulemaking or final rule (such as the direct costs both to the 
        Government in administering the final rule and to businesses 
        and others in complying with the final rule, and any adverse 
        effects on the efficient functioning of the economy, private 
        markets (including productivity, employment, and international 
        competitiveness), health, safety, and the natural environment).
            ``(5) Estimates by the agency, if and to the extent that 
        the agency determines that accurate estimates are reasonably 
        feasible, of--
                    ``(A) the future compliance costs of the Federal 
                mandate; and
                    ``(B) any disproportionate budgetary effects of the 
                Federal mandate upon any particular regions of the 
                United States or particular State, local, or tribal 
                governments, urban or rural or other types of 
                communities, or particular segments of the private 
                sector.
            ``(6)(A) A detailed description of the extent of the 
        agency's prior consultation with the private sector and elected 
        representatives under section 204 of the affected State, local, 
        and Tribal governments.
            ``(B) A detailed summary of the comments and concerns that 
        were presented by the private sector and State, local, or 
        Tribal governments either orally or in writing to the agency.
            ``(C) A detailed summary of the agency's evaluation of 
        those comments and concerns.
            ``(7) A detailed summary of how the agency complied with 
        each of the regulatory principles described in section 201.
            ``(8) An assessment of the effects that the proposed 
        rulemaking or final rule are expected to have on private 
        property owners, including the use and value of affected 
        property.''.
    (b) Requirement for Detailed Summary.--Section 202(b) of the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532(b)) is amended by 
inserting ``detailed'' before ``summary''.

SEC. 10. ENHANCED STAKEHOLDER CONSULTATION.

    Section 204 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1534) is amended--
            (1) in the section heading, by inserting ``and private 
        sector'' before ``input'';
            (2) in subsection (a)--
                    (A) by inserting ``, and impacted parties within 
                the private sector (including small business),'' after 
                ``on their behalf)''; and
                    (B) by striking ``Federal intergovernmental 
                mandates'' and inserting ``Federal mandates''; and
            (3) by amending subsection (c) to read as follows:
    ``(c) Guidelines.--For appropriate implementation of subsections 
(a) and (b) consistent with applicable laws and regulations, the 
following guidelines shall be followed:
            ``(1) Consultations shall take place as early as possible, 
        before issuance of a notice of proposed rulemaking, continue 
        through the final rule stage, and be integrated explicitly into 
        the rulemaking process.
            ``(2) Agencies shall consult with a wide variety of State, 
        local, and tribal officials and impacted parties within the 
        private sector (including small businesses). Geographic, 
        political, and other factors that may differentiate varying 
        points of view should be considered.
            ``(3) Agencies should estimate benefits and costs to assist 
        with these consultations. The scope of the consultation should 
        reflect the cost and significance of the Federal mandate being 
        considered.
            ``(4) Agencies shall, to the extent practicable--
                    ``(A) seek out the views of State, local, and 
                Tribal governments, and impacted parties within the 
                private sector (including small business), on costs, 
                benefits, and risks; and
                    ``(B) solicit ideas about alternative methods of 
                compliance and potential flexibilities, and input on 
                whether the Federal regulation will harmonize with and 
                not duplicate similar laws in other levels of 
                government.
            ``(5) Consultations shall address the cumulative impact of 
        regulations on the affected entities.
            ``(6) Agencies may accept electronic submissions of 
        comments by relevant parties but may not use those comments as 
        the sole method of satisfying the guidelines in this 
        subsection.''.

SEC. 11. NEW AUTHORITIES AND RESPONSIBILITIES FOR OFFICE OF INFORMATION 
              AND REGULATORY AFFAIRS.

    Section 208 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1538) is amended to read as follows:

``SEC. 208. OFFICE OF INFORMATION AND REGULATORY AFFAIRS 
              RESPONSIBILITIES.

    ``(a) In General.--The Administrator of the Office of Information 
and Regulatory Affairs shall provide meaningful guidance and oversight 
so that each agency's regulations for which a written statement is 
required under section 202 are consistent with the principles and 
requirements of this title, as well as other applicable laws, and do 
not conflict with the policies or actions of another agency. If the 
Administrator determines that an agency's regulations for which a 
written statement is required under section 202 do not comply with such 
principles and requirements, are not consistent with other applicable 
laws, or conflict with the policies or actions of another agency, the 
Administrator shall identify areas of non-compliance, notify the 
agency, and request that the agency comply before the agency finalizes 
the regulation concerned.
    ``(b) Annual Statements to Congress on Agency Compliance.--The 
Administrator of the Office of Information and Regulatory Affairs 
annually shall submit to Congress, including the Committee on Homeland 
Security and Governmental Affairs of the Senate and the Committee on 
Oversight and Reform of the House of Representatives, a written report 
detailing compliance by each agency with the requirements of this title 
that relate to regulations for which a written statement is required by 
section 202, including activities undertaken at the request of the 
Director to improve compliance, during the preceding reporting period. 
The report shall also contain an appendix detailing compliance by each 
agency with section 204.''.

SEC. 12. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS.

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) is 
amended--
            (1) by redesignating section 209 as section 210; and
            (2) by inserting after section 208 the following:

``SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS.

    ``(a) Requirement.--At the request of the chairman or ranking 
minority member of a standing or select committee of the House of 
Representatives or the Senate, an agency shall conduct a retrospective 
analysis of an existing Federal regulation promulgated by an agency.
    ``(b) Report.--Each agency conducting a retrospective analysis of 
existing Federal regulations pursuant to subsection (a) shall submit to 
the chairman of the relevant committee, Congress, and the Comptroller 
General of the United States a report containing, with respect to each 
Federal regulation covered by the analysis--
            ``(1) a copy of the Federal regulation;
            ``(2) the continued need for the Federal regulation;
            ``(3) the nature of comments or complaints received 
        concerning the Federal regulation from the public since the 
        Federal regulation was promulgated;
            ``(4) the extent to which the Federal regulation overlaps, 
        duplicates, or conflicts with other Federal regulations, and, 
        to the extent feasible, with State and local governmental 
        rules;
            ``(5) the degree to which technology, economic conditions, 
        or other factors have changed in the area affected by the 
        Federal regulation;
            ``(6) a complete analysis of the retrospective direct costs 
        and benefits of the Federal regulation that considers studies 
        done outside the Federal Government (if any) estimating such 
        costs or benefits; and
            ``(7) any litigation history challenging the Federal 
        regulation.''.

SEC. 13. EXPANSION OF JUDICIAL REVIEW.

    Section 401(a) of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1571(a)) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``sections 202 and 203(a)(1) and 
                (2)'' and inserting ``sections 201, 202, paragraphs (1) 
                and (2) of section 203(a), and subsections (a) and (b) 
                of section 205''; and
                    (B) by striking ``only'';
            (2) in paragraph (2)--
                    (A) in subparagraph (A)--
                            (i) by striking ``sections 202 and 
                        203(a)(1) and (2)'' and inserting ``sections 
                        201, 202, paragraphs (1) and (2) of section 
                        203(a), and subsections (a) and (b) of section 
                        205''; and
                            (ii) by striking ``only'' each place that 
                        term appears; and
                    (B) in subparagraph (B), by striking ``section 
                202'' and all that follows through the period at the 
                end and inserting the following: ``section 202, prepare 
                the written plan under paragraphs (1) and (2) of 
                section 203(a), or comply with subsections (a) and (b) 
                of section 205, a court may compel the agency to 
                prepare such written statement, prepare such written 
                plan, or comply with such subsections.''; and
            (3) in paragraph (3), by striking ``written statement or 
        plan is required'' and all that follows through ``shall not'' 
        and inserting the following: ``written statement under section 
        202, a written plan under paragraphs (1) and (2) of section 
        203(a), or compliance with section 201 and subsections (a) and 
        (b) of section 205 is required, the inadequacy or failure to 
        prepare such statement (including the inadequacy or failure to 
        prepare any estimate, analysis, statement, or description), to 
        prepare such written plan, or to comply with such sections 
        may''.
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