[House Report 113-352]
[From the U.S. Government Publishing Office]
113th Congress } { Rept. 113-352
2d Session } HOUSE OF REPRESENTATIVES { Part 1
=======================================================================
UNFUNDED MANDATES INFORMATION AND TRANSPARENCY ACT OF 2013
_______
February 14, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 899]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 899) to provide for additional
safeguards with respect to imposing Federal mandates, and for
other purposes, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 7
Explanation of Amendments........................................ 9
Committee Consideration.......................................... 9
Roll Call Votes.................................................. 10
Correspondence................................................... 12
Application of Law to the Legislative Branch..................... 19
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 19
Statement of General Performance Goals and Objectives............ 19
Duplication of Federal Programs.................................. 19
Disclosure of Directed Rule Makings.............................. 19
Federal Advisory Committee Act................................... 19
Unfunded Mandate Statement....................................... 19
Earmark Identification........................................... 19
Committee Estimate............................................... 20
Budget Authority and Congressional Budget Office Cost Estimate... 20
Changes in Existing Law Made by the Bill as Reported............. 23
Minority Views................................................... 32
Committee Statement and Views
PURPOSE AND SUMMARY
The Unfunded Mandates Reform Act (UMRA) of 1995 was enacted
to promote informed and deliberate decisions by Congress and
federal agencies concerning the appropriateness of federal
mandates and to ``retain competitive balance between the public
and private sectors.''\1\ In accord with UMRA's original
intent, H.R. 899 aims to improve the quality of Congressional
deliberations and to enhance the ability of Congress, federal
agencies, and the public to identify federal mandates that may
impose undue harm on state, local, and tribal governments and
the private sector by providing more complete information about
the cost of such mandates and by holding Congress and federal
agencies accountable for imposing unfunded mandates.
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\1\2 U.S.C. Sec. 1501.
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BACKGROUND AND NEED FOR LEGISLATION
UMRA's enactment was celebrated as a major legislative
accomplishment that would relieve much of the burden placed
upon nonfederal entities by Congress and federal agencies
through unfunded mandates.\2\ It has become apparent over time,
however, that UMRA--despite its good intentions and noble
purpose--failed to curtail substantially the imposition of
unfunded mandates. The several loopholes, exemptions and
exclusions embedded in the law are largely to blame. A 2005
Government Accountability Office (GAO) report found that
``[m]ost parties from the state and local governments, federal,
business, and academic/think tank sectors vie[w] UMRA's narrow
coverage as a major weakness that leaves out many federal
actions with potentially significant financial impacts on
nonfederal parties.''\3\ Interviewed parties agreed that UMRA's
definitions, as well as exclusions and exemptions in the law
that allow Congress and federal agencies to continue to place
burdens upon state, local and tribal governments and private
sector entities should be revisited.\4\ Multiple parties also
informed GAO that the consultation process between agencies and
affected nonfederal entities concerning regulatory mandates was
inconsistent and in need of improvement.\5\
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\2\CRS Report
\3\Government Accountability Office (GAO), Unfunded Mandates: Views
Vary About Reform Act's Strengths, Weaknesses, and Options for
Improvement, GAO-05-454, Mar. 2005.
\4\Id.
\5\Id.
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H.R. 899 is a product of a thorough examination of UMRA
during the 112th Congress by the Subcommittee on Technology
Information Policy, Intergovernmental Relations and Procurement
Reform, chaired by Rep. James Lankford (R-OK). The Subcommittee
examined the effectiveness of UMRA via three hearings featuring
recognized experts on unfunded mandates, as well as
representatives of states, localities and the private sector.
Witnesses highlighted UMRA's narrow coverage, exemption and
loopholes as serious flaws, and suggested that legislative
remedies to the UMRA statute would make it a more effective
instrument to reduce unfunded legislative and regulatory
mandates. H.R. 899 enhances UMRA's utility as a tool to promote
informed and deliberate decisions by Congress and federal
agencies concerning the appropriateness of federal mandates.
H.R. 899 accomplishes this in multiple ways.
To bring awareness to federal mandates imposed on entities
pursuant to a condition of grant aid, H.R. 899 allows a
chairman or ranking member of any Congressional committee to
request CBO 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. The National
Conference of State Legislatures is among those entities
advocating that more light be shed on the cost of implementing
assistance programs such as No Child Left Behind programs and
the Temporary Assistance for Needy Families Block Grant. Such
programs impose significant costs on participating states, but
are not considered unfunded mandates under UMRA. H.R. 899 does
not expand the definition of what constitutes an unfunded
mandate, but it does allow the cost of certain excluded
programs to be assessed. This provision was crafted in
consultation with the Congressional Budget Office (CBO), which
advised the Committee on how best to provide information about
conditions of grant aid without overburdening CBO.\6\
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\6\See CBO letter
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H.R. 899 amends the definition of ``direct costs'' in UMRA
to ensure that federal agencies are accounting in their UMRA
analyses for such costs of federal mandates as forgone business
profits, costs passed onto consumers or other entities, and
behavioral changes. The Small Business and Entrepreneurship
Council testified to the Subcommittee that regulatory costs
impacting prices, risk-taking, economic growth and employment
need to be considered in agency cost estimates.\7\ CBO has
stated that its own UMRA analyses already take these factors
into account.
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\7\Unfunded Mandates and Regulatory Overreach Part II: Hearing
Before the H. Subcomm. on Tech., Information Policy, Intergovernmental
Relations and Procurement Reform of the H. Comm. on Oversight and Govt.
Reform, 112th Congress (2011) (testimony of Raymond Keating, Chief
Economist, Small Business and Entrepreneurship Council).
---------------------------------------------------------------------------
To close one of UMRA's loopholes, H.R. 899 subjects
independent regulatory agencies to the statute. Under current
law, independent regulatory agencies, such as the Consumer
Financial Protection Bureau, the Securities Exchange
Commission, the National Labor Relations Board, the Consumer
Product Safety Commission, and the Federal Communications
Commission, can impose significant costs and burdensome
requirements with little meaningful accountability and
oversight.
In testimony before the Subcommittee, former OIRA
Administrator Dudley recommended that UMRA be aligned with
Executive Order 12866. She opined that the analytical
requirements of Executive Order 12866 are a more effective
mechanism for holding agencies accountable for the objectives
expressed in UMRA.\8\ Moreover, former OIRA Administrator
Sunstein wrote in previous scholarship that executive orders
are not ``sufficient for real change;'' and ``a thoroughgoing
reform effort would require legislative reforms, not merely
executive action.''\9\ To ensure that agencies regulate
responsibly, H.R. 899 codifies most of those regulatory
principles outlined in Executive Order 12866, and reaffirmed in
Executive Order 13563.
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\8\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations
and Procurement Reform of the H. Comm. on Oversight and Govt. Reform,
112th Congress (2011) (testimony of Susan Dudley, Director, GW
Regulatory Studies).
\9\Robert W. Hahn & Cass R. Sunstein, A New Executive Order for
Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis,
150 U. Pa. L. Rev. 1489 (2002).
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To close another loophole in UMRA, H.R. 899 no longer
allows an agency to forego UMRA analyses simply because the
agency publishes a rule without first issuing a notice of
proposed rulemaking. GAO has found that nearly half of final
rules are not first published in the Federal Register as a
notice of proposed rulemaking. Currently, rules that do have a
notice of proposed rulemaking in the Federal Register qualify
for an automatic UMRA exemption.\10\
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\10\U.S. General Accountability Office, Federal Rulemaking:
Agencies Often Published Final Action Without Proposed Rules, August
31, 1998.
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To put the private sector on equal footing with the public
sector, H.R. 899 requires agencies to consult with regulated
private sector entities during the development of significant
federal regulatory mandates. This consultation requirement now
applies only with respect to state, local, and tribal
governments. Existing OIRA guidelines on agency execution of
this requirement are codified in H.R. 899 and OIRA is required
to include an Appendix detailing agency consultation activities
with state, local, and tribal governments and the private
sector in its annual report to Congress on agency compliance
with UMRA. This will help remedy what the National Conference
of State Legislatures has described as a ``haphazard''
consultation process.\11\ For example, OIRA previously included
an appendix in its annual report to Congress, which provided
examples of agency consultation with state and local
governments.\12\ However, in recent years, the annual report
has ceased to include any evidence concerning how consultation
is being carried out.\13\ In response to a July 2011 inquiry
from the Subcommittee, OIRA conceded it had unilaterally
decided to remove the appendix, even though this arguably
constituted a failure to satisfy its current-law reporting
requirements.\14\
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\11\National Conference of State Legislatures, Policy Position on
Federal Mandate Relief, effective through August 2011, available at
http://www.ncsl.org/Default.aspx?TabID=773&tabs=
855,20,632#FederalMandate.
\12\U.S. Office of Mgmt. & Budget, Office of Information and
Regulatory Affairs, 2008 Report to Congress on the Costs and Benefits
of Regulations and Unfunded Mandates on State, Local, and Tribal
Entities, January 2009.
\13\U.S. Office of Mgmt. & Budget, Office of Information and
Regulatory Affairs, 2009, 2010 and 2011 Report to Congress on the
Benefits and Costs of Federal Regulations and Unfunded Mandates on
State, Local, and Tribal Entities, 2009, 2010, 2011.
\14\Cass Sunstein email response to Chairman Lankford (July 22,
2011).
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To ensure that meaningful oversight over unfunded
regulatory mandates is enabled and remains consistent with
other regulatory oversight, H.R. 899 formally transfers
responsibilities from the Director of the Office of Management
and Budget (OMB) to the Administrator of the Office of
Information and Regulatory Affairs (OIRA). OMB has long
delegated its responsibilities under UMRA to OIRA.\15\ H.R. 899
would cement that relationship, while also extending OIRA's
role beyond certifying and reporting on agency regulatory
actions.
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\15\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations
and Procurement Reform of the H. Comm. on Oversight and Govt. Reform,
112th Congress (2011) (testimony of Susan Dudley, Director, GW
Regulatory Studies).
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To ensure that agencies continue the ``look back'' process,
H.R. 899 also allows a chairman or ranking member of any
congressional committee to request any agency conduct a
retrospective analysis of an existing federal regulatory
mandate. The retrospective analysis provision aims to educate
Congress about the impact of a rule after it has been in
effect. It will incentivize agencies to perform a proper
analysis when first proposing regulations. Before the
Subcommittee, GAO testified that parties they interviewed
advocated for an evaluation of existing rules to better assess
the effectiveness of UMRA.\16\ The Small Business and
Entrepreneurship Council's testimony supported an after the
fact evaluation of the effectiveness and the true cost of
existing regulations and mandates.\17\ President Obama has also
stated that each agency, ``should periodically review its
existing significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or
repealed to make the agency's regulatory program more effective
or less burdensome in achieving the regulatory
objectives.''\18\
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\16\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations
and Procurement Reform of the H. Comm. on Oversight and Govt. Reform,
112th Congress (2011) (testimony of Denise Fantone, Government
Accountability Office).
\17\Unfunded Mandates and Regulatory Overreach Part II: Hearing
Before the H. Subcomm. on Tech., Information Policy, Intergovernmental
Relations and Procurement Reform of the H. Comm. on Oversight and Govt.
Reform, 112th Congress (2011) (testimony of Raymond Keating, Chief
Economist, Small Business and Entrepreneurship Council).
\18\See, Cass Sunstein, Memo for the Heads of Executive Departments
and Agencies, and of Independent Regulatory Agencies re. Executive
Order 13563, ``Improving Regulation and Regulatory Review'' (February
2, 2011).
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To enhance accountability, H.R. 899 extends judicial review
to the selection of the least costly or least burdensome
regulatory alternative, and to the principles of Executive
Order 12866. In her testimony, former OIRA Administrator Dudley
advocated for expanding judicial review in this way to give
agencies a greater incentive to carefully consider the ``least
costly, most cost-effective or least burdensome alternative''
when regulating.\19\ The Small Business and Entrepreneurship
Council testified that the current judicial review provision
included in UMRA ``lacks teeth'' and ``offers no real
incentives to challenge agencies or for agencies to deal more
legitimately with UMRA requirements.''\20\ Further, former OIRA
Administrator Sunstein wrote in previous scholarship that
materials generated under executive order should be subject to
judicial review to the extent that they are relevant to an
agency's decision under the relevant statute. He noted this
would only ``slightly comprom[ise] the interests of the
Executive in favor of the interests of the public as a
whole.''\21\
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\19\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations
and Procurement Reform of the H. Comm. on Oversight and Govt. Reform,
112th Congress (2011) (testimony of Susan Dudley, Director, GW
Regulatory Studies).
\20\Unfunded Mandates and Regulatory Overreach Part II: Hearing
Before the H. Subcomm. on Tech., Information Policy, Intergovernmental
Relations and Procurement Reform of the H. Comm. on Oversight and Govt.
Reform, 112th Congress (2011) (testimony of Raymond Keating, Chief
Economist, Small Business and Entrepreneurship Council).
\21\Robert W. Hahn & Cass R. Sunstein, A New Executive Order for
Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis,
150 U. Pa. L. Rev. 1489 (2002).
---------------------------------------------------------------------------
In sum, H.R. 899 makes reforms addressing key deficiencies
in the law identified by experts and regulated entities.
LEGISLATIVE HISTORY
H.R. 899, the Unfunded Mandates Information and
Transparency Act of 2013, was introduced on February 28, 2013
by Rep. Virginia Foxx (NC) and referred to the Committee on
Oversight and Government Reform. The bill was also referred to
the Committee on Rules, the Committee on the Budget and the
Committee on the Judiciary. On July 24, 2013, the Committee on
Oversight and Government Reform marked-up H.R. 899 and it was
favorably reported out of Committee.
Prior to the 113th Congress, similar bills to H.R. 899 were
introduced to reform UMRA. In the 110th Congress,
Representative Virginia Foxx (R-NC) introduced H.R. 6964, the
Unfunded Mandates Information and Transparency Act of 2008, to
subject more unfunded mandates to UMRA and enhance reporting
requirements. In the 111th Congress, Representative Foxx and
Representative Scott Garrett (R-NJ) introduced H.R. 2255, the
Unfunded Mandates Information and Transparency Act of 2009, and
H.R. 5818, the Mandate Prevention Act of 2010, respectively.
H.R. 2255 was a reintroduction of H.R. 6964, and H.R. 5818
allowed a point of order to be raised if a private sector
mandate exceeded the UMRA threshold.
In the 112th Congress, Representative Foxx introduced H.R.
373, the Unfunded Mandates Information and Transparency Act of
2011, which was referred to the Committee on Oversight and
Government Reform, and subsequently, the Subcommittee on
Technology, Information Policy, Intergovernmental Relations and
Procurement Reform. The Subcommittee on Technology, Information
Policy, Intergovernmental Relations and Procurement Reform,
chaired by Rep. James Lankford (R-OK), examined the
effectiveness of UMRA via three hearings featuring recognized
experts on unfunded mandates, as well as representatives of
states, localities and the private sector. These witnesses
highlighted UMRA's narrow coverage, exemptions and loopholes as
serious flaws, and suggested that legislative remedies to the
UMRA statute would make it a more effective instrument to
reduce unfunded legislative and regulatory mandates.
On February 15, 2011, at a hearing entitled, ``Unfunded
Mandates and Regulatory Overreach,'' the Subcommittee heard
testimony from former Office of Information and Regulatory
Affairs (OIRA) Administrator Susan Dudley; GAO Director Denise
Fantone; the Mayor of Edmond, Oklahoma, Patrice Douglas; and
Fairfax County, Virginia County Executive, Anthony Griffin. At
the hearing, Subcommittee Ranking Member Gerald Connolly (D-VA)
recognized that UMRA ``did not fully stem the tide of unfunded
mandates'' because it was ``written in a manner that exempted
bills that imposed significant costs on localities.''\22\ Full
Committee Ranking Member Elijah Cummings (D-MD) asked the Mayor
of Edmond, ``What can the federal government do to help locals
to plan better with regard to so-called unfunded
mandates?''\23\
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\22\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations
and Procurement Reform of the H. Comm. on Oversight and Govt. Reform,
112th Congress (2011) (statement of Rep. Gerald Connolly).
\23\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations
and Procurement Reform of the H. Comm. on Oversight and Govt. Reform,
112th Congress (2011) (statement of Ranking Member Elijah Cummings).
---------------------------------------------------------------------------
On March 30, 2011, at a hearing entitled, ``Unfunded
Mandates and Regulatory Overreach Part II,'' the Subcommittee
heard testimony from South Dakota State Senator Joni Cutler;
Small Business & Entrepreneurship Council Chief Economist
Raymond Keating; and the Founder and CEO of the Small Business
Majority, John Arensmeyer. These witnesses testified about the
impact of unfunded mandates on states and small businesses and
suggested possible reforms to UMRA.
On May 25, 2011, at a hearing entitled, ``Unfunded
Mandates, Regulatory Burdens and the Role of the Office of
Information and Regulatory Affairs,'' the Subcommittee heard
testimony from OIRA Administrator Cass Sunstein about the Obama
Administration's efforts to reform the regulatory system
through executive order. This included what the Obama
Administration views as an unprecedented ``look back'' at
regulations to identify those that may be outdated,
unnecessary, or duplicative, in order to pave the way for
efforts to repeal, modify, or streamline them. Administrator
Sunstein also testified about UMRA's applicability to the
public and the private sector.
After a thorough examination of UMRA through these
hearings, Subcommittee Chairman Lankford held a markup on
September 21, 2011, in the Subcommittee on Technology,
Information Policy, Intergovernmental Relations and Procurement
Reform, at which time H.R. 373 was reported with an amendment
in the nature of a substitute. The bill was then reported from
the full Oversight and Government Reform Committee, with
another amendment in the nature of a substitute.
Section-by-Section
Section 1: Short title
Unfunded Mandates Information and Transparency Act of 2013
Section 2: Purpose
The purpose of this legislation is to improve the quality
of deliberations of Congress with respect to proposed federal
mandates and to enhance the ability of Congress and the public
to identify federal mandates that may impose undue harm on
consumers, workers, employers, small businesses, and state,
local, and tribal governments by providing Congress and the
public more complete information about the effects of such
mandates.
Section 3: Providing for Congressional Budget Office studies on
policies involving changes in conditions of grant aid
Provides for a Committee chairman or ranking member to
request that the Congressional Budget Office (CBO) perform 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.
Section 4: Clarifying the definition of direct costs to reflect
Congressional Budget Office practice
Amends the definition of ``direct costs'' to codify current
CBO practice and ensures that federal agencies account for the
costs of federal mandates, such as forgone business profits,
costs passed onto consumers and other entities, and behavioral
changes.
Section 5: Expanding the scope of reporting requirements to include
regulations imposed by independent regulatory agencies
Requires independent regulatory agencies to comply with
UMRA with the exception of the Board of Governors of the
Federal Reserve System and the Federal Open Market Committee.
Section 6: Amendments to replace Office of Management and Budget with
Office of Information and Regulatory Affairs
Transfers responsibility for ensuring agency compliance
with UMRA from the Director of the Office of Management and
Budget (OMB) to the Administrator of the Office of Information
and Regulatory Affairs (OIRA).
Section 7: Applying substantive point of order to private sector
mandates
Subjects to a point of order a private sector legislative
mandate exceeding the UMRA threshold ($146 million in 2012).
Section 8: Regulatory process and principles
Clarifies that agencies must conduct UMRA analyses unless a
law ``expressly'' prohibits them from doing so; requires
agencies to adhere to the principles of regulation in Section 1
of Executive Order 12866 and reaffirmed in Executive Order
13563 when conducting regulatory actions; defines ``regulatory
action'' as ``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.''
Section 9: Expanding the scope of statements to accompany significant
regulatory actions
Requires federal agencies to measure a proposed or final
rule's annual effect on State, local, or tribal governments, or
on the private sector, if the rule may result in an effect of
$100,000,000 or more in any one year. This language aligns UMRA
with Executive Order 12866 and requires agencies to assess such
costs as forgone profits, costs passed onto consumers and other
entities, and behavioral changes.
Closes an existing loophole allowing agencies to forego
UMRA analyses of a final rule that is not preceded by a notice
of proposed rulemaking (NPRM). If a NPRM is not issued, the
agency must conduct an UMRA analysis before promulgating the
final rule or within six months after promulgating the final
rule.
Further aligns UMRA with Executive Order 12866 by removing
the words ``adjusted annually for inflation'' when determining
the threshold for UMRA analysis, and by adopting cost-benefit
analysis requirements.
Requires that the descriptions and summaries an agency must
complete under UMRA be ``detailed.''
Section 10: Enhanced stakeholder consultation
The existing requirement in UMRA that agencies receive
meaningful and timely input in the development of regulatory
mandates from state, local, and tribal governments is extended
to include private sector input. OIRA policies instructing
agencies how to execute this requirement are codified.
Section 11: New authorities and responsibilities for Office of
Information and Regulatory Affairs
Gives OIRA oversight responsibility for determining whether
agencies have drafted their regulations in accordance with the
regulatory principles adopted in this bill, and whether cost-
benefit analyses are performed adequately. If OIRA determines
the agency has not met these requirements, OIRA is to notify
the agency and request compliance before a regulation is
finalized.
Requires OIRA include in its annual report to Congress an
appendix detailing agency compliance with UMRA's requirement
for consultation with state, local, and tribal governments and
the private sector.
Section 12: Retrospective analysis of existing Federal regulations
Requires federal agencies to conduct a retrospective
analysis of an existing federal regulation at the request of a
Committee chairman or ranking minority member. It is to be
submitted to the requesting member and to Congress, and is to
include: a copy of the federal regulation; the continued need
for the federal regulation; the nature and comments or
complaints received concerning the federal regulation; an
explanation of the extent to which the mandate may duplicate
another federal regulation; a description of the degree to
which technology or economic conditions have changed in the
area affecting the federal regulation; an analysis of the
retrospective costs and benefits of the federal regulation that
considers studies done outside the government; and a history of
legal challenges to the federal regulation.
Section 13: Expansion of judicial review
Extends judicial review to an agency's selection of the
least costly/least burdensome regulatory alternative, and
permits a court to stay, enjoin, or invalidate a rule if an
agency fails to complete the required UMRA analysis or to
adhere to the regulatory principles.
Explanation of Amendments
No amendments were adopted.
Committee Consideration
On July 24, 2013 the Committee met in open session and
ordered reported favorably the bill, H.R. 899, by roll call
vote, a quorum being present.
Roll Call Votes
There were two record votes during consideration of H.R.
899:
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
113TH CONGRESS--RATIO (23-18)
ROLL CALL
Meeting on: Full Committee Markup Vote #9 Date: 7/24/13
Vote on: H.R. 899--amendment (#2) Connolly--regarding treatment of
corporations and individuals
----------------------------------------------------------------------------------------------------------------
Republicans Aye No Present Democrats Aye No Present
----------------------------------------------------------------------------------------------------------------
Mr. Issa (CA) (Chairman)......... ....... X ......... Mr. Cummings (MD) X ....... .........
(Ranking).
Mr. Mica (FL).................... ....... X ......... Mrs. Maloney (NY).. X ....... .........
Mr. Turner (OH).................. ....... X ......... Ms. Norton (DC).... X ....... .........
Mr. Duncan (TN).................. ....... ....... ......... Mr. Tierney (MA)... X ....... .........
Mr. McHenry (NC)................. ....... X ......... Mr. Clay (MO)...... X ....... .........
Mr. Jordan (OH).................. ....... X ......... Mr. Lynch (MA)..... X ....... .........
Mr. Chaffetz (UT)................ ....... X ......... Mr. Cooper (TN).... X ....... .........
Mr. Walberg (MI)................. ....... X ......... Mr. Connolly (VA).. X ....... .........
Mr. Lankford (OK)................ ....... X ......... Ms. Speier (CA).... X ....... .........
Mr. Amash (MI)................... ....... X ......... Mr. Cartwright (PA) X ....... .........
Dr. Gosar (AZ)................... ....... X ......... Mr. Pocan (WI)..... X ....... .........
Mr. Meehan (PA).................. ....... X ......... Mrs. Duckworth (IL) X ....... .........
Dr. DesJarlais (TN).............. ....... X ......... Ms. Kelly (IL)..... X ....... .........
Mr. Gowdy (SC)................... ....... X ......... Mr. Davis (IL)..... X ....... .........
Mr. Farenthold (TX).............. ....... X ......... Mr. Welch (VT)..... X ....... .........
Mr. Hastings (WA)................ ....... X ......... Mr. Cardenas (CA).. X ....... .........
Mrs. Lummis (WY)................. ....... X ......... Mr. Horsford (NV).. ....... ....... .........
Mr. Woodall (GA)................. ....... X ......... Ms. Lujan Grisham X ....... .........
(NM).
Mr. Massie (KY).................. ....... X .........
Mr. Collins (GA)................. ....... X .........
Mr. Meadows (NC)................. ....... X .........
Mr. Bentivolio (MI).............. ....... X .........
Mr. DeSantis (FL)................ ....... X .........
----------------------------------------------------------------------------------------------------------------
Roll Call Totals: Ayes 17; Nays 22. Voice Vote: Failed X.
[Quorum to bring up bill = 14; Quorum to report bill = 21]
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
113TH CONGRESS--RATIO (23-18)
ROLL CALL
Meeting on: Full Committee Markup Vote #10 Date: 7/24/13
Vote on: H.R. 899--Final passage
----------------------------------------------------------------------------------------------------------------
Republicans Aye No Present Democrats Aye No Present
----------------------------------------------------------------------------------------------------------------
Mr. Issa (CA) (Chairman)......... X ....... ......... Mr. Cummings (MD) ....... X .........
(Ranking).
Mr. Mica (FL).................... X ....... ......... Mrs. Maloney (NY).. ....... X .........
Mr. Turner (OH).................. X ....... ......... Ms. Norton (DC).... ....... X .........
Mr. Duncan (TN).................. ....... ....... ......... Mr. Tierney (MA)... ....... X .........
Mr. McHenry (NC)................. X ....... ......... Mr. Clay (MO)...... ....... X .........
Mr. Jordan (OH).................. X ....... ......... Mr. Lynch (MA)..... ....... X .........
Mr. Chaffetz (UT)................ X ....... ......... Mr. Cooper (TN).... ....... X .........
Mr. Walberg (MI)................. X ....... ......... Mr. Connolly (VA).. ....... X .........
Mr. Lankford (OK)................ X ....... ......... Ms. Speier (CA).... ....... X .........
Mr. Amash (MI)................... X ....... ......... Mr. Cartwright (PA) ....... X .........
Dr. Gosar (AZ)................... X ....... ......... Mr. Pocan (WI)..... ....... X .........
Mr. Meehan (PA).................. X ....... ......... Mrs. Duckworth (IL) ....... X .........
Dr. DesJarlais (TN).............. X ....... ......... Ms. Kelly (IL)..... ....... X .........
Mr. Gowdy (SC)................... X ....... ......... Mr. Davis (IL)..... ....... X .........
Mr. Farenthold (TX).............. X ....... ......... Mr. Welch (VT)..... ....... X .........
Mr. Hastings (WA)................ X ....... ......... Mr. Cardenas (CA).. ....... X .........
Mrs. Lummis (WY)................. X ....... ......... Mr. Horsford (NV).. ....... ....... .........
Mr. Woodall (GA)................. X ....... ......... Ms. Lujan Grisham ....... X .........
(NM).
Mr. Massie (KY).................. X ....... .........
Mr. Collins (GA)................. X ....... .........
Mr. Meadows (NC)................. X ....... .........
Mr. Bentivolio (MI).............. X ....... .........
Mr. DeSantis (FL)................ X ....... .........
----------------------------------------------------------------------------------------------------------------
Roll Call Totals: Ayes 22; Nays 17. Voice Vote: Passed.
[Quorum to bring up bill = 14; Quorum to report bill = 21]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill enhances UMRA's utility as a tool to promote informed
and deliberate decisions by Congress and federal agencies
concerning the appropriateness of federal mandates. As such
this bill does not relate to employment or access to public
services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Duplication of Federal Programs
No provision of H.R. 899 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 899 does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 899 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 899. However, clause 3(d)(3)(B) of that rule provides that
this requirement does not apply when the Committee has included
in its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 899 from the Director of
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 1, 2013.
Hon. Darrell Issa,
Chairman , Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman:
The Congressional Budget Office has prepared the enclosed
cost estimate for H.R. 899, the Unfunded Mandates Information
and Transparency Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lisa Ramirez-
Branum.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 899--Unfunded Mandates Information and Transparency Act of 2013
Summary: H.R. 899 would amend the Unfunded Mandates Reform
Act of 1995 (UMRA) to increase the information available to the
Congress and the public with respect to federal mandates
contained in proposed legislation and federal regulations.
Enacting this legislation would codify in UMRA many practices
currently required of most federal agencies when analyzing the
potential impact of regulations. The bill also would require
independent regulatory agencies to perform broad analyses
(including costs and benefits) of regulations by requiring
those agencies to comply with standards established in UMRA
relating to the rulemaking process.
The legislation would amend the Congressional Budget Act to
establish a point of order, which a Member of Congress may
raise, against legislation that creates a private-sector
mandate with costs above the threshold established in UMRA.\24\
In addition, the legislation would require CBO to conduct
assessments of costs to state, local, and tribal governments
resulting from any changes to conditions of certain federal
assistance programs.
---------------------------------------------------------------------------
\24\The intergovernmental and private-sector thresholds established
in UMRA were $50 million and $100 million, respectively in 1996,
adjusted annually for inflation. In 2013, the thresholds are $75
million for intergovernmental mandates and $150 million for private-
sector mandates.
---------------------------------------------------------------------------
CBO estimates that the new requirements placed on
independent regulatory agencies, such as the Federal Deposit
Insurance Corporation (FDIC), would require additional
resources to carry out. Expenses of the FDIC are classified as
direct spending; therefore, pay-as-you-go procedures apply.
Because costs incurred by the FDIC would be offset by premiums
collected from insured depository institutions, CBO estimates
that enacting H.R. 899 would result in no net effect on direct
spending over the 2014-2023 period. Assuming the appropriation
of necessary amounts, the legislation also would have a
discretionary cost of $4 million over the 2014-2018 period, CBO
estimates.
CBO expects that several independent agencies would
increase fees to offset the costs of implementing the
additional regulatory activities required by the bill; thus,
H.R 899 would increase the costs of existing mandates on public
and private-sector entities that would be required to pay those
fees. Based on information from the affected agencies, CBO
estimates that the additional costs of those mandates would be
small and would fall well below the annual thresholds
established in UMRA for intergovernmental and private-sector
mandates.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 899 is shown in the following table.
The costs of this legislation fall within budget function 370
(advancement of commerce) and other budget functions that
contain spending for salaries and expenses.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
------------------------------------------------------------
2014 2015 2016 2017 2018 2014-2018
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATIONa
Estimated Authorization Level...................... * 1 1 1 1 4
Estimated Outlays.................................. * 1 1 1 1 4
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
aCBO also estimates that enacting H.R. 899 would result in additional direct spending totaling less than
$500,000 annually. Because we expect FDIC premiums to increase to cover those costs, we estimate that net
direct spending would not be significant.
Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted late in 2013, that fees and
premiums will be levied to cover the additional administrative
costs incurred by some regulatory agencies, that the necessary
amounts will be appropriated near the start of each fiscal
year, and that spending patterns will follow historical
patterns for regulatory analysis activities.
H.R. 899 would amend UMRA to codify certain practices
currently required under several executive orders, including
Executive Orders 12866 and 13563. (Those instructions require
agencies in the executive branch to analyze the effects of
regulations on state, local, and tribal governments and the
private sector. For significant rules with an estimated annual
effect on the economy of $100 million or more, agencies must
prepare detailed cost-benefit analyses.) The legislation also
would codify Executive Order 13579 and remove a provision in
current law that exempts independent regulatory agencies, such
as the FDIC, from complying with standards established in UMRA
relating to the rulemaking process. Based on information from
several agencies, CBO expects that the new requirements would
increase the workload of independent regulatory agencies,
requiring them to devote more resources to prepare broader
analyses of regulations and to support judicial reviews and
hearings pertaining to agency regulations.
Spending subject to appropriation: To meet the regulatory
standards established in H.R. 899, CBO estimates that at least
12 independent regulatory agencies would face an increased
workload and would eventually incur annual costs of about
$500,000, on average, per agency. We expect that it would take
a few years to reach that level of effort, resulting in gross
costs of $18 million over the 2014-2018 period. Under current
law, four of those agencies, the Federal Energy Regulatory
Commission, the Federal Communications Commission, the Nuclear
Regulatory Commission, and the Securities and Exchange
Commission, are authorized to collect fees sufficient to offset
their appropriation each year. CBO assumes that future
appropriations would direct agencies to exercise that
authority. Thus, CBO estimates that implementing the bill would
have a net discretionary cost of $1 million in 2014 and $4
million over the 2014-2018 period, subject to the availability
of appropriated funds.
H.R. 899 also would require CBO, at the request of any
Chairman or Ranking Minority Member of a committee, to conduct
an assessment of costs to state, local, and tribal governments
resulting from any changes to conditions of federal assistance
programs. CBO estimates that the costs to conduct any one such
an assessment would probably not be significant; however, a
sizable number of assessments prepared in any given year would
increase administrative costs. Any such costs would be subject
to the availability of appropriated funds.
Direct spending: CBO also estimates that the FDIC would
incur additional costs totaling less than $500,000 annually to
implement H.R. 899. FDIC has the authority to collect premiums
from insured depository institutions to support administrative
expenses; therefore, CBO estimates that those increased costs
would be offset over the over the 2014-23 period.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. Expenses of the FDIC are classified as direct
spending; therefore, pay-as-you-go procedures apply. Because
costs incurred by the FDIC would be offset by premiums
collected from insured depository institutions CBO estimates
that enacting H.R. 899 would result in no net effect on direct
spending over the 2014-2023 period.
Intergovernmental and private-sector impact: H.R. 899 would
increase the costs of existing mandates on public and private
entities that are required to pay fees assessed by certain
independent agencies. The bill would expand the scope of
analyses that independent agencies are required to conduct when
they issue regulations. Some of those independent agencies are
authorized to collect fees sufficient to offset the cost of
their regulatory activities. Because we expect some of those
agencies to increase fees to offset the costs of their
additional regulatory activities, the bill would increase the
costs of existing mandates by requiring public and private
entities to pay higher fees.
Based on information from the independent agencies, the
cost of implementing the additional regulatory activities would
not be significant. Therefore, CBO estimates that any
additional costs would be small and would fall well below the
annual thresholds established in UMRA for intergovernmental and
private-sector mandates ($75 million and $150 million in 2013
respectively, adjusted annually for inflation).
Estimate prepared by: Federal costs: Daniel Hoople, Marin
Burnett, Lisa Ramirez-Branum, and Susan Willie; Impact on
State, local, and Tribal Governments: Elizabeth Cove Delisle;
Impact on the private sector: Marin Burnett.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CONGRESSIONAL BUDGET ACT OF 1974
* * * * * * *
TITLE II--CONGRESSIONAL BUDGET OFFICE
* * * * * * *
DUTIES AND FUNCTIONS
Sec. 202. (a) * * *
* * * * * * *
(g) Studies.--
(1) * * *
* * * * * * *
(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.
* * * * * * *
TITLE IV--ADDITIONAL PROVISIONS TO IMPROVE FISCAL PROCEDURES
* * * * * * *
Part B--Federal Mandates
SEC. 421. DEFINITIONS.
For purposes of this part:
(1) Agency.--The term ``agency'' has the same meaning
as defined in section 551(1) of title 5, United States
Code[, but does not include independent regulatory
agencies], except it does not include the Board of
Governors of the Federal Reserve System or the Federal
Open Market Committee.
* * * * * * *
(3) Direct costs.--The term ``direct costs''--
(A)(i) in the case of a Federal
intergovernmental mandate, means the aggregate
estimated amounts that all State, local, and
tribal governments would incur or be required
to spend or would be prohibited from raising in
revenues in order to comply with the Federal
intergovernmental mandate; or
* * * * * * *
(B) in the case of a Federal private sector
mandate, means the aggregate estimated amounts
that the private sector will be required to
spend or could forgo in profits, including
costs passed on to consumers or other entities
taking into account, to the extent practicable,
behavioral changes, in order to comply with the
Federal private sector mandate;
* * * * * * *
SEC. 425. LEGISLATION SUBJECT TO POINT OF ORDER.
(a) In General.--It shall not be in order in the Senate or
the House of Representatives to consider--
(1) * * *
(2) any bill, joint resolution, amendment, motion, or
conference report that would increase the direct costs
of [Federal intergovernmental mandates] Federal
mandates by an amount that causes the thresholds
specified in section 424(a)(1) or 424(b)(1) to be
exceeded, unless--
(A) * * *
* * * * * * *
----------
UNFUNDED MANDATES REFORM ACT OF 1995
* * * * * * *
TITLE I--LEGISLATIVE ACCOUNTABILITY AND REFORM
* * * * * * *
SEC. 103. COST OF REGULATIONS.
(a) * * *
* * * * * * *
(c) Cooperation of [Office of Management and Budget] Office
of Information and Regulatory Affairs.--At the request of the
Director of the Congressional Budget Office, the [Director of
the Office of Management and Budget] Administrator of the
Office of Information and Regulatory Affairs shall provide data
and cost estimates for regulations implementing an Act
containing a Federal mandate covered by part B of title IV of
the Congressional Budget and Impoundment Control Act of 1974
(as added by section 101 of this Act).
* * * * * * *
TITLE II--REGULATORY ACCOUNTABILITY AND REFORM
[SEC. 201. REGULATORY PROCESS.
[Each agency shall, unless otherwise 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 regulations incorporate
requirements specifically set forth in law).]
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. 202. STATEMENTS TO ACCOMPANY SIGNIFICANT REGULATORY ACTIONS.
[(a) In General.--Unless otherwise prohibited by law, before
promulgating any general notice of proposed rulemaking that is
likely to result in promulgation of any rule that includes any
Federal mandate that may result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any 1 year, and before promulgating any final
rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement
containing--
[(1) an identification of the provision of Federal
law under which the rule is being promulgated;
[(2) a qualitative and quantitative assessment of the
anticipated costs and benefits of the Federal mandate,
including the costs and benefits to State, local, and
tribal governments or the private sector, as well as
the effect of the Federal mandate on health, safety,
and the natural environment and such an assessment
shall include--
[(A) an analysis of the extent to which such
costs to State, local, and tribal governments
may be paid with Federal financial assistance
(or otherwise paid for by the Federal
Government); and
[(B) the extent to which there are available
Federal resources to carry out the
intergovernmental mandate;
[(3) 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;
[(4) estimates by the agency of the effect on the
national economy, such as the effect on productivity,
economic growth, full employment, creation of
productive jobs, and international competitiveness of
United States goods and services, if and to the extent
that the agency in its sole discretion determines that
accurate estimates are reasonably feasible and that
such effect is relevant and material; and
[(5)(A) a description of the extent of the agency's
prior consultation with elected representatives (under
section 204) of the affected State, local, and tribal
governments;
[(B) a summary of the comments and concerns that were
presented by State, local, or tribal governments either
orally or in writing to the agency; and
[(C) a summary of the agency's evaluation of those
comments and concerns.]
(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.
(b) Promulgation.--In promulgating a general notice of
proposed rulemaking or a final rule for which a statement under
subsection (a) is required, the agency shall include in the
promulgation a detailed summary of the information contained in
the statement.
* * * * * * *
SEC. 204. STATE, LOCAL, AND TRIBAL GOVERNMENT AND PRIVATE SECTOR INPUT.
(a) In General.--Each agency shall, to the extent permitted
in law, develop an effective process to permit elected officers
of State, local, and tribal governments (or their designated
employees with authority to act on their behalf), and impacted
parties within the private sector (including small business),
to provide meaningful and timely input in the development of
regulatory proposals containing significant [Federal
intergovernmental mandates] Federal mandates.
* * * * * * *
[(c) Implementing Guidelines.--No later than 6 months after
the date of enactment of this Act, the President shall issue
guidelines and instructions to Federal agencies for appropriate
implementation of subsections (a) and (b) consistent with
applicable laws and regulations.]
(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. 205. LEAST BURDENSOME OPTION OR EXPLANATION REQUIRED.
(a) * * *
* * * * * * *
(c) [OMB] Certification.--No later than 1 year after the date
of the enactment of this Act, the [Director of the Office of
Management and Budget] Administrator of the Office of
Information and Regulatory Affairs shall certify to Congress,
with a written explanation, agency compliance with this section
and include in that certification agencies and rulemakings that
fail to adequately comply with this section.
SEC. 206. ASSISTANCE TO THE CONGRESSIONAL BUDGET OFFICE.
The [Director of the Office of Management and Budget]
Administrator of the Office of Information and Regulatory
Affairs shall--
(1) * * *
* * * * * * *
[SEC. 208. ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLIANCE.
[No later than 1 year after the effective date of this title
and annually thereafter, the Director of the Office of
Management and Budget shall submit to the Congress, including
the Committee on Governmental Affairs of the Senate and the
Committee on Government Reform and Oversight of the House of
Representatives, a written report detailing compliance by each
agency during the preceding reporting period with the
requirements of this title.]
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. 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. [209.] 210. EFFECTIVE DATE.
This title and the amendments made by this title shall take
effect on the date of the enactment of this Act.
* * * * * * *
TITLE IV--JUDICIAL REVIEW
SEC. 401. JUDICIAL REVIEW.
(a) Agency Statements on Significant Regulatory Actions.--
(1) In general.--Compliance or noncompliance by any
agency with the provisions of [sections 202 and
203(a)(1) and (2)] sections 201, 202, 203(a)(1) and
(2), and 205(a) and (b) shall be subject to judicial
review [only] in accordance with this section.
(2) Limited review of agency compliance or
noncompliance.--(A) Agency compliance or noncompliance
with the provisions of [sections 202 and 203(a)(1) and
(2)] sections 201, 202, 203(a)(1) and (2), and 205(a)
and (b) shall be subject to judicial review [only]
under section 706(1) of title 5, United States Code,
and [only] as provided under subparagraph (B).
(B) If an agency fails to prepare the written
statement (including the preparation of the estimates,
analyses, statements, or descriptions) under [section
202 or the written plan under section 203(a) (1) and
(2), a court may compel the agency to prepare such
written statement.] 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.
(3) Review of agency rules.--In any judicial review
under any other Federal law of an agency rule for which
a [written statement or plan is required under sections
202 and 203(a) (1) and (2), the inadequacy or failure
to prepare such statement (including the inadequacy or
failure to prepare any estimate, analysis, statement or
description) or written plan shall not] 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 be
used as a basis for staying, enjoining, invalidating or
otherwise affecting such agency rule.
* * * * * * *
MINORITY VIEWS
H.R. 899, the Unfunded Mandates Information and
Transparency Act, would be an assault on health, safety, and
environmental protections. This legislation would erect new
barriers to slow down the regulatory process and would give
corporations an unfair advantage in the regulatory process.
Section 5 of the bill would repeal language that excludes
independent regulatory agencies from the reporting requirements
of the Unfunded Mandates Reform Act (UMRA), with the exception
of the Board of Governors of the Federal Reserve and the
Federal Open Market Committee. The Office of Management and
Budget (OMB) is responsible for overseeing the UMRA process.
Since the independent agencies would be under the direction of
OMB for purposes of UMRA compliance, this could compromise the
independence of those agencies.
Section 7 of H.R. 899 would create a new point of order in
the House of Representatives for legislation containing an
unfunded mandate, making it more difficult to enact
legislation.
Section 8 would incorporate a cost-benefit requirement from
Executive Order 12866, but it would not include language from
the same Executive Order directing agencies to perform these
assessments ``to the extent feasible.''
Section 10 would require agencies to provide impacted
parties in the private sector--but not other stakeholders--with
an advance opportunity to provide input on proposed
regulations. It would require agencies to conduct consultations
with private sector businesses ``as early as possible, before
the issuance of a notice of proposed rulemaking.'' Expanding
this consultation requirement only to the private sector could
allow businesses to have an advantage over other stakeholders
in the development of regulatory proposals.
During consideration of this bill by the Committee,
Representatives Gerry Connolly and Tammy Duckworth offered an
amendment that stated: ``Any opportunities or rights afforded
to a corporation under this section shall also be afforded to
any interested individual.'' The amendment was rejected.
Section 11 would codify the role of the Office of
Information and Regulatory Affairs (OIRA) in reviewing agency
regulations and require that if the OIRA Administrator finds
that an agency did not comply with UMRA's requirements, the
Administrator must request that the agency comply before the
regulation is finalized.
Section 12 would require that, ``at the request of the
chairman or ranking minority member of a standing or select
committee of the House of Representatives or Senate, an agency
shall conduct a retrospective analysis of an existing Federal
regulation issued by an agency.'' This provision would require
agencies to divert resources toward conducting these analyses
and away from fulfilling their missions.
Section 13 would expand judicial review under UMRA. The
judicial review section would allow a court to review the
``inadequacy or failure'' of an agency to prepare a written
statement under UMRA. Allowing judicial review of the adequacy
of an agency's UMRA statement would give judges the ability to
second-guess the expertise of agencies. This process could be
abused by regulated industries taking agencies to court over
regulations they view as unfavorable.
During Committee consideration of this bill Representative
Stephen Lynch offered an amendment to require agencies as part
of their evaluation of any disproportionate budgetary effects
of a federal mandate to include an evaluation of ``any effects
from sequestration on the agency's operations.'' The amendment
was rejected.
Elijah E. Cummings,
Ranking Member.