[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 50 Referred in Senate (RFS)]
<DOC>
115th CONGRESS
2d Session
H. R. 50
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 16, 2018
Received; read twice and referred to the Committee on Homeland Security
and Governmental Affairs
_______________________________________________________________________
AN ACT
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 2017''.
SEC. 2. PURPOSE.
The purpose of this Act is--
(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 new paragraph:
``(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)(A)(i)) 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.
Paragraph (1) of section 421 of the Congressional Budget Act of
1974 (2 U.S.C. 658) 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, the
Federal Open Market Committee, or the Consumer Financial Protection
Bureau''.
SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGEMENT AND BUDGET WITH
OFFICE OF INFORMATION AND REGULATORY AFFAIRS.
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4; 2
U.S.C. 1511 et seq.) is amended--
(1) 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'';
(2) 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
(3) 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--
(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.--Subsection (a) of section 202 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1532) 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 six 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
Nation 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.--Subsection (b) of section
202 of such Act 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) A record of any consultation with any non-Federal
party during the development of regulatory proposals containing
a significant Federal mandate shall be posted on the website of
the agency within five days after the consultation. Any
comments submitted by a non-Federal party shall be posted on
the website of the agency within five days after the date of
submission to the agency.
``(5) 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.
``(6) Consultations shall address the cumulative impact of
regulations on the affected entities.
``(7) 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
Director 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 Government 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 (Public Law 104-4; 2
U.S.C. 1511 et seq.) is amended--
(1) by redesignating section 209 as section 210; and
(2) by inserting after section 208 the following new
section 209:
``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 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 paragraphs (1) and (2)(A)--
(A) by striking ``sections 202 and 203(a)(1) and
(2)'' each place it appears and inserting ``sections
201, 202, 203(a)(1) and (2), and 205(a) and (b)''; and
(B) by striking ``only'' each place it appears;
(2) in paragraph (2)(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
section 203(a)(1) and (2), or comply with section 205(a) and
(b), a court may compel the agency to prepare such written
statement, prepare such written plan, or comply with such
section.''; 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 section 203(a)(1) and (2), or
compliance with sections 201 and 205(a) and (b) 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 section may''.
SEC. 14. REAUTHORIZATION.
Section 109 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1516) is amended to read as follows:
``SEC. 109. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated to the Congressional
Budget Office $1,500,000 for each of fiscal years 2018 through 2024 to
carry out the provisions of this title.''.
Passed the House of Representatives July 13, 2018.
Attest:
KAREN L. HAAS,
Clerk.