[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4077 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 643
116th CONGRESS
  2d Session
                                S. 4077

                          [Report No. 116-333]

   To amend the Unfunded Mandates Reform Act of 1995 to provide for 
 regulatory impact analyses for certain rules, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 25, 2020

Mr. Portman (for himself, Mrs. Fischer, Mr. Lankford, and Mr. Scott of 
   Florida) introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

                           December 16, 2020

               Reported by Mr. Johnson, with an amendment
                  [Insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
   To amend the Unfunded Mandates Reform Act of 1995 to provide for 
 regulatory impact analyses for certain rules, 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 Accountability and 
Transparency Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The public has a right to know the benefits and costs 
        of regulation. Effective regulatory programs provide important 
        benefits to the public, including protecting the environment, 
        worker safety, and human health. Regulations also impose 
        significant costs on individuals, employers, and State, local, 
        and Tribal governments, diverting resources from other 
        important priorities.
            (2) Better regulatory analysis and review should improve 
        the quality of agency decisions, increasing the benefits and 
        reducing unwarranted costs of regulation.
            (3) Disclosure and scrutiny of key information underlying 
        agency decisions should make the Federal Government more 
        accountable to the public it serves.

SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN RULES.

    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 3 (2 U.S.C. 1502)--
                    (A) in paragraph (1), by striking ``and'' at the 
                end;
                    (B) in paragraph (2), by striking the period at the 
                end and inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(3) the term `major rule' means a rule, as defined in 
        section 551 of title 5, United States Code, that the 
        Administrator of the Office of Information and Regulatory 
        Affairs determines is likely to cause--
                    ``(A) an annual effect on the economy of 
                $100,000,000 or more, adjusted once every 5 years to 
                reflect increases in the Consumer Price Index for All 
                Urban Consumers, as published by the Bureau of Labor 
                Statistics of the Department of Labor;
                    ``(B) a major increase in costs or prices for 
                consumers, individual industries, Federal, State, 
                local, or Tribal government agencies, or geographic 
                regions; or
                    ``(C) significant adverse effects on competition, 
                employment, investment, productivity, innovation, 
                public health and safety, or the ability of United 
                States-based enterprises to compete with foreign-based 
                enterprises in domestic and export markets.''; and
            (3) in section 202 (2 U.S.C. 1532)--
                    (A) by striking the section heading and inserting 
                the following:

``SEC. 202. REGULATORY IMPACT ANALYSES FOR CERTAIN RULES.'';

                    (B) by redesignating subsections (b) and (c) as 
                subsections (d) and (e), respectively;
                    (C) by striking subsection (a) and inserting the 
                following:
    ``(a) Definition of Cost.--In this section, the term `cost' means 
the cost of compliance and any reasonably foreseeable indirect costs, 
including revenues lost, as a result of a major rule of an agency that 
is subject to this section.
    ``(b) Regulatory Impact Analyses.--
            ``(1) Requirement.--Before promulgating any proposed or 
        final major rule, the agency promulgating the major rule shall 
        prepare and publish in the Federal Register an initial and 
        final regulatory impact analysis with respect to the major 
        rule.
            ``(2) Initial regulatory impact analysis.--An initial 
        regulatory impact analysis required under paragraph (1) shall--
                    ``(A) accompany the notice of proposed rulemaking 
                with respect to the major rule that is the subject of 
                the analysis; and
                    ``(B) be open to public comment.
            ``(3) Final regulatory impact analysis.--A final regulatory 
        impact analysis required under paragraph (1) shall accompany 
        the final major rule that is the subject of the analysis.
    ``(c) Content.--Each initial and final regulatory impact analysis 
prepared and published under subsection (b) shall include, with respect 
to the major rule that is the subject of the analysis--
            ``(1)(A) an analysis of the anticipated benefits and costs 
        of the major rule, which shall be quantified to the extent 
        feasible;
            ``(B) an analysis of the benefits and costs of a reasonable 
        number of regulatory alternatives within the range of the 
        discretion of the agency under the statute authorizing the 
        major rule, including alternatives that--
                    ``(i) require no action by the Federal Government; 
                and
                    ``(ii)(I) use incentives and market-based means to 
                encourage the desired behavior;
                    ``(II) provide information based upon which the 
                public can make choices; or
                    ``(III) employ other flexible regulatory options 
                that permit the greatest flexibility in achieving the 
                objectives of the statute authorizing the major rule; 
                and
            ``(C) an explanation of how the major rule complies with 
        the requirements of section 205;
            ``(2) an assessment of the extent to which--
                    ``(A) the costs to State, local, and Tribal 
                governments may be paid with Federal financial 
                assistance (or otherwise paid for by the Federal 
                Government); and
                    ``(B) Federal resources are available to carry out 
                the major rule;
            ``(3) estimates of--
                    ``(A) any disproportionate budgetary effects of the 
                major rule upon any particular--
                            ``(i) regions of the United States;
                            ``(ii) State, local, or Tribal governments;
                            ``(iii) types of communities, including 
                        urban or rural communities; or
                            ``(iv) segments of the private sector; and
                    ``(B) the effect of the major rule on job creation 
                or job loss, which shall be quantified to the extent 
                feasible; and
            ``(4)(A) a description of the extent of the prior 
        consultation of the agency under section 204 with elected 
        representatives of each affected State, local, or Tribal 
        government;
            ``(B) a summary of the comments and concerns that were 
        presented to the agency orally or in writing by State, local, 
        or Tribal governments; and
            ``(C) a summary of the evaluation by the agency of the 
        comments and concerns described in subparagraph (B).'';
                    (D) in subsection (d), as so redesignated, by 
                striking ``a statement under subsection (a) is 
                required, the agency shall include in the promulgation 
                a summary of the information contained in the 
                statement'' and inserting ``an analysis under 
                subsection (b) is required, the agency promulgating the 
                major rule shall include in the promulgation a summary 
                of the information contained in the analysis''; and
                    (E) in subsection (e), as so redesignated, by 
                striking ``any statement required under subsection (a) 
                in conjunction with or as a part of any other statement 
                or analysis, provided that the statement or analysis 
                satisfies the provisions of subsection (a)'' and 
                inserting ``any analysis required under subsection (b) 
                in conjunction with, or as a part of, any other 
                statement or analysis if the other statement or 
                analysis satisfies the requirements of subsections (b) 
                and (c)''.

SEC. 4. 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 businesses),'' 
                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 businesses), 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. 5. MAXIMIZE NET BENEFITS OR PROVIDE EXPLANATION.

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) is amended by striking section 205 (2 U.S.C. 1535) and 
inserting the following:

``SEC. 205. MAXIMIZE NET BENEFITS.

    ``(a) Definition of Cost.--In this section, the term `cost' has the 
meaning given the term in section 202(a).
    ``(b) Requirement.--Before promulgating any proposed or final major 
rule for which a regulatory impact analysis is required under section 
202, an agency shall from the alternatives identified and considered 
under section 202(c)(1)(B), select the alternative that maximizes net 
benefits, taking into consideration only the costs and benefits that 
arise within the scope of the statutory provision that authorizes the 
rulemaking.
    ``(c) Exceptions.--An agency may adopt an alternative other than as 
required under subsection (b) only if--
            ``(1) the Administrator of the Office of Information and 
        Regulatory Affairs approves the adoption by the agency of the 
        alternative; and
            ``(2) the alternative is adopted to--
                    ``(A) account for costs or benefits that cannot be 
                quantified, including costs or benefits related to 
                constitutional or civil rights, provided that the 
                agency identifies all such costs and benefits and 
                explains why those costs and benefits justify the 
                adoption of the alternative; or
                    ``(B) achieve additional benefits or cost 
                reductions, provided that the agency--
                            ``(i) identifies--
                                    ``(I) all such additional benefits 
                                and the associated costs of those 
                                benefits; and
                                    ``(II) all such cost reductions and 
                                the associated benefits of those cost 
                                reductions; and
                            ``(ii) explains why--
                                    ``(I) the additional benefits 
                                justify the additional costs; or
                                    ``(II) the additional cost 
                                reductions justify any benefits 
                                foregone.''.

SEC. 6. 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 (in this section referred to as the 
`Administrator') shall provide meaningful guidance and oversight so 
that the major rules of an agency for which a regulatory impact 
analysis is required under section 202--
            ``(1) are consistent with the principles and requirements 
        of this title, as well as other applicable laws; and
            ``(2) and do not conflict with the policies or actions of 
        another agency.
    ``(b) Notification.--If the Administrator determines that the major 
rules of an agency for which a regulatory impact analysis is required 
under section 202 do not comply with the principles and requirements of 
this title, are not consistent with other applicable laws, or conflict 
with the policies or actions of another agency, the Administrator 
shall--
            ``(1) identify areas of noncompliance;
            ``(2) notify the agency; and
            ``(3) request that the agency comply before the agency 
        finalizes the major rule concerned.
    ``(c) Annual Statements to Congress on Agency Compliance.--The 
Administrator 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, an 
annual written report that, for the 1-year period preceding the 
report--
            ``(1) details compliance by each agency with the 
        requirements of this title that relate to major rules for which 
        a regulatory impact analysis is required by section 202, 
        including activities undertaken at the request of the 
        Administrator to improve compliance; and
            ``(2) contains an appendix detailing compliance by each 
        agency with section 204.''.

SEC. 7. INITIATION OF RULEMAKING.

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) is 
amended--
            (1) by redesignating section 209 (2 U.S.C. 1531 note) as 
        section 210; and
            (2) by inserting after section 208 (2 U.S.C. 1548) the 
        following:

``SEC. 209. INITIATION OF RULEMAKING FOR MAJOR RULES.

    ``When an agency determines to initiate a rulemaking that may 
result in a major rule, the agency shall--
            ``(1) establish an electronic docket for that rulemaking, 
        which may have a physical counterpart; and
            ``(2) publish a notice of initiation of rulemaking in the 
        Federal Register, which shall--
                    ``(A) briefly describe the subject and objectives 
                of, and the problem to be solved by, the major rule;
                    ``(B) refer to the legal authority under which the 
                major rule would be proposed, including the specific 
                statutory provision that authorizes the rulemaking;
                    ``(C) invite interested persons to propose 
                alternatives and other ideas regarding how best to 
                accomplish the objectives of the agency in the most 
                effective manner;
                    ``(D) indicate how interested persons may submit 
                written material for the docket; and
                    ``(E) appear in the Federal Register not later than 
                90 days before the date on which the agency publishes a 
                notice of proposed rulemaking for the major rule.''.

SEC. 8. INCLUSION OF APPLICATION TO INDEPENDENT REGULATORY AGENCIES.

    (a) In General.--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''.
    (b) Exemption for Monetary Policy.--The Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1501 et seq.) is amended by inserting after 
section 5 the following:

``SEC. 6. EXEMPTION FOR MONETARY POLICY.

    ``Nothing in title II, III, or IV shall apply to rules that concern 
monetary policy proposed or implemented by the Board of Governors of 
the Federal Reserve System or the Federal Open Market Committee.''.

SEC. 9. JUDICIAL REVIEW.

    Title IV of the Unfunded Mandates Reform Act of 1995 is amended by 
striking section 401 (2 U.S.C. 1571) and inserting the following:

``SEC. 401. JUDICIAL REVIEW.

    ``(a) In General.--A person that is aggrieved by final agency 
action in adopting a major rule that is subject to section 202 is 
entitled to judicial review of whether the agency complied with section 
202(b), 202(c)(1), or 205 with respect to the rule.
    ``(b) Scope of Review.--Chapter 7 of title 5, United States Code, 
shall govern the scope of judicial review under subsection (a).
    ``(c) Jurisdiction.--Each court that has jurisdiction to review a 
rule for compliance with section 553 of title 5, United States Code, or 
under any other provision of law, shall have jurisdiction to review a 
claim brought under subsection (a).
    ``(d) Relief Available.--In granting relief in an action under this 
section, a court shall order the agency that promulgated the major rule 
that is under review to take remedial action consistent with chapter 7 
of title 5, United States Code.''.

SEC. 10. 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--
            (1) by striking ``Federal intergovernmental mandates'' and 
        inserting ``Federal mandates''; and
            (2) by striking ``section 424(a)(1)'' and inserting 
        ``subsection (a)(1) or (b)(1) of section 424''.

SEC. 11. EFFECTIVE DATE.

    Sections 3, 4, 5, and 7 of this Act and the amendments made by 
those sections shall take effect on the date that is 120 days after the 
date of enactment of this Act.
                                                       Calendar No. 643

116th CONGRESS

  2d Session

                                S. 4077

                          [Report No. 116-333]

_______________________________________________________________________

                                 A BILL

   To amend the Unfunded Mandates Reform Act of 1995 to provide for 
 regulatory impact analyses for certain rules, and for other purposes.

_______________________________________________________________________

                           December 16, 2020

                       Reported with an amendment