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114th Congress } { Rept. 114-011
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
UNFUNDED MANDATES INFORMATION AND TRANSPARENCY ACT OF 2015
_______
February 2, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Chaffetz, 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. 50]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 50) 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........................................ 10
Committee Consideration.......................................... 10
Roll Call Votes.................................................. 10
Correspondence................................................... 12
Application of Law to the Legislative Branch..................... 18
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 18
Statement of General Performance Goals and Objectives............ 18
Duplication of Federal Programs.................................. 18
Disclosure of Directed Rule Makings.............................. 18
Federal Advisory Committee Act................................... 18
Unfunded Mandate Statement....................................... 18
Earmark Identification........................................... 19
Committee Estimate............................................... 19
Budget Authority and Congressional Budget Office Cost Estimate... 19
Changes in Existing Law Made by the Bill, as Reported............ 19
Minority Views................................................... 37
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. 50, the Unfunded Mandates Information and
Transparency Act of 2015, 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. The bill accomplishes this
objective by providing more complete information about the cost
of such mandates, and by holding Congress and federal agencies
accountable for imposing unfunded mandates.
---------------------------------------------------------------------------
\1\2 U.S.C. Sec. 1501.
---------------------------------------------------------------------------
BACKGROUND AND NEED FOR LEGISLATION
UMRA was enacted to relieve much of the burden placed upon
nonfederal entities by Congress and federal agencies through
unfunded mandates. 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.''\2\ 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.\3\ 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.\4\
---------------------------------------------------------------------------
\2\Government Accountability Office (GAO), Unfunded Mandates: Views
Vary About Reform Act's Strengths, Weaknesses, and Options for
Improvement, GAO-05-454, Mar. 2005.
\3\Id.
\4\Id.
---------------------------------------------------------------------------
H.R. 50 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. 50 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. 50 accomplishes this in multiple ways.
To bring awareness to federal mandates imposed on entities
pursuant to a condition of grant aid, H.R. 50 allows a chairman
or ranking member of any Congressional committee to request the
Congressional Budget Office (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. 50 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 CBO, which
advised the Committee on how best to provide information about
conditions of grant aid without overburdening CBO.
H.R. 50 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.\5\ CBO has
stated that its own UMRA analyses already take these factors
into account.
---------------------------------------------------------------------------
\5\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. 50 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 Office of
Information and Regulatory Affairs (OIRA) Administrator Susan
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.\6\ Moreover,
former OIRA Administrator Cass 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.''\7\ To
ensure that agencies regulate responsibly, H.R. 50 codifies
most of those regulatory principles outlined in Executive Order
12866, and reaffirmed in Executive Order 13563.
---------------------------------------------------------------------------
\6\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).
\7\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).
---------------------------------------------------------------------------
To close another loophole in UMRA, H.R. 50 prevents an
agency from completing 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.\8\
---------------------------------------------------------------------------
\8\U.S. General Accountability Office, Federal Rulemaking: Agencies
Often Published Final Action Without Proposed Rules, August 31, 1998.
---------------------------------------------------------------------------
To put the private sector on equal footing with the public
sector, H.R. 50 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. 50 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.\9\ For example, OIRA previously included
an appendix in its annual report to Congress, which provided
examples of agency consultation with state and local
governments.\10\ However, in recent years, the annual report
has ceased to include any evidence concerning how consultation
is being carried out.\11\ 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.\12\
---------------------------------------------------------------------------
\9\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.
\10\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.
\11\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.
\12\Cass Sunstein email response to Chairman Lankford (July 22,
2011).
---------------------------------------------------------------------------
To ensure that meaningful oversight over unfunded
regulatory mandates is enabled and remains consistent with
other regulatory oversight, H.R. 50 formally transfers
responsibilities from the Director of the Office of Management
and Budget (OMB) to the Administrator of OIRA. OMB has long
delegated its responsibilities under UMRA to OIRA.\13\ H.R. 50
would cement that relationship, while also extending OIRA's
role beyond certifying and reporting on agency regulatory
actions.
---------------------------------------------------------------------------
\13\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).
---------------------------------------------------------------------------
To ensure that agencies continue the ``look back'' process,
H.R. 50 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.\14\ 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.\15\ 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.''\16\
---------------------------------------------------------------------------
\14\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).
\15\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).
\16\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).
---------------------------------------------------------------------------
To enhance accountability, H.R. 50 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.\17\ 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.''\18\ 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.''\19\
---------------------------------------------------------------------------
\17\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).
\18\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).
\19\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. 50 makes reforms addressing key deficiencies
in the law identified by experts and regulated entities.
Legislative History
H.R. 50, the Unfunded Mandates Information and Transparency
Act of 2015, was introduced on January 6, 2015 by Rep. Virginia
Foxx (R-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 January 27, 2015, the Committee on Oversight and
Government Reform ordered H.R. 50 favorably reported, without
amendment. Rep. Loretta Sanchez (D-CA) is an original
cosponsor.
The legislation has passed the House on three prior
occasions: as Title IV of H.R. 4078, the Red Tape Reduction and
Small Business Job Creation Act, in the 112th Congress and as
both a standalone bill (H.R. 899) and as a subsection of H.R.
4, the Jobs for America Act, in the 113th Congress.
During the 113th Congress, H.R. 899, the Unfunded Mandates
Information and Transparency Act of 2013, was introduced on
February 28, 2013 by Rep. Virginia Foxx (R-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 considered
H.R. 899 and it was favorably reported out of Committee.
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.
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.
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.''\20\ 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?''\21\
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\20\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).
\21\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 2015
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.
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; and 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
Ranking Member Elijah E. Cummings (D-MD) offered an
amendment to remove the provision that provides for
consultation with impacted parties within the private sector,
including small businesses. The amendment would instead require
consultation with veterans, law enforcement officers, and
religious groups (who are already covered under H.R. 50). The
Cummings amendment was not adopted.
Committee Consideration
On January 27, 2015, the Committee met in open session and
ordered reported favorably the bill, H.R. 50, by roll call
vote, a quorum being present.
Roll Call Votes
There was one recorded vote during consideration of H.R.
50:
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
goal or objective of this bill is to provide for additional
safeguards with respect to imposing Federal mandates.
Duplication of Federal Programs
No provision of this bill 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 this bill 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
Mandate 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
This bill 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)(1) 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
this bill. However, clause 3(d)(2)(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 of
1974. The Committee has requested but not received a cost
estimate for this bill from the Director of the Congressional
Budget Office. Based on cost estimates from similar legislation
from the 113th Congress, however, the Committee believes that
enactment of this bill would result in no net effect on direct
spending over the 2015-2024 period. Assuming the appropriation
of necessary amounts, the Committee estimates that the
legislation would also have a discretionary cost of less than
$5 million over the 2015-2019 period.
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 requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee believes
that this bill does not contain any new budget authority,
spending authority, credit authority, or an increase or
decrease in revenues or tax expenditures.
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) Assistance to Budget Committees.--It shall be
the primary duty and function of the Office to provide to the
Committees on the Budget of both Houses information which will
assist such committees in the discharge of all matters within
their jurisdictions, including (1) information with respect to
the budget, appropriation bills, and other bills authorizing or
providing new budget authority or tax expenditures, (2)
information with respect to revenues, receipts, estimated
future revenues and receipts, and changing revenue conditions,
and (3) such related information as such Committees may
request.
(b) Assistance to Committees on Appropriations, Ways and
Means, and Finance.--At the request of the Committee on
Appropriations of either House, the Committee on Ways and Means
of the House of Representatives, or the Committee on Finance of
the Senate, the Office shall provide to such Committee any
information which will assist it in the discharge of matters
within its jurisdiction, including information described in
clauses (1) and (2) of subsection (a) and such related
information as the Committee may request.
(c) Assistance to Other Committees and Members.--
(1) At the request of any other committee of the
House of Representatives or the Senate or any joint
committee of the Congress, the Office shall provide to
such committee or joint committee any information
compiled in carrying out clauses (1) and (2) of
subsection (a), and, to the extent practicable, such
additional information related to the foregoing as may
be requested.
(2) At the request of any committee of the Senate or
the House of Representatives, the Office shall, to the
extent practicable, consult with and assist such
committee in analyzing the budgetary or financial
impact of any proposed legislation that may have--
(A) a significant budgetary impact on State,
local, or tribal governments;
(B) a significant financial impact on the
private sector; or
(C) a significant employment impact on the
private sector.
(3) At the request of any Member of the House or
Senate, the Office shall provide to such member any
information compiled in carrying out clauses (1) and
(2) of subsection (a), and, to the extent available,
such additional information related to the foregoing as
may be requested.
(d) Assignment of Office Personnel to Committees and Joint
Committees.--At the request of the Committee on the Budget of
either House, personnel of the Office shall be assigned, on a
temporary basis, to assist such committee. At the request of
any other committee of either House or any joint committee of
the Congress, personnel of the Office may be assigned, on a
temporary basis, to assist such committee or joint committee
with respect to matters directly related to the applicable
provisions of subsection (b) or (c).
(e) Reports to Budget Committees.--
(1) On or before February 15 of each year, the
Director shall submit to the Committees on the Budget
of the House of Representatives and the Senate, a
report for the fiscal year commencing on October 1 of
that year, with respect to fiscal policy, including (A)
alternative levels of total revenues, total new budget
authority, and total outlays (including related
surpluses and deficits), (B) the levels of tax
expenditures under existing law, taking into account
projected economic factors and any changes in such
levels based on proposals in the budget submitted by
the President for such fiscal year, and (C) a statement
of the levels of budget authority and outlays for each
program assumed to be extended in the baseline, as
provided in section 257(b)(2)(A) and for excise taxes
assumed to be extended under section 257(b)(2)(C) of
the Balanced Budget and Emergency Deficit Control Act
of 1985. Such report shall also include a discussion of
national budget priorities, including alternative ways
of allocating new budget authority and budget outlays
for such fiscal year among major programs or functional
categories, taking into account how such alternative
allocations will meet major national needs and affect
balanced growth and development of the United States.
(2) The Director shall from time to time submit to
the Committees on the Budget of the House of
Representatives and the Senate such further reports
(including reports revising the report required by
paragraph (1)) as may be necessary or appropriate to
provide such Committees with information, data, and
analyses for the performance of their duties and
functions.
(3) On or before January 15 of each year, the
Director, after consultation with the appropriate
committees of the House of Representatives and Senate,
shall submit to the Congress a report listing (A) all
programs and activities funded during the fiscal year
ending September 30 of that calendar year for which
authorizations for appropriations have not been enacted
for that fiscal year, and (B) all programs and
activities for which authorizations for appropriations
have been enacted for the fiscal year ending September
30 of that calendar year, but for which no
authorizations for appropriations have been enacted for
the fiscal year beginning October 1 of that calendar
year.
(f) Use of Computers and Other Techniques.--The Director may
equip the Office with up-to-date computer capability (upon
approval of the Committee on House Oversight of the House of
Representatives and the Committee on Rules and Administration
of the Senate), obtain the services of experts and consultants
in computer technology, and develop techniques for the
evaluation of budgetary requirements.
(g) Studies.--
(1) Continuing studies.--The Director of the
Congressional Budget Office shall conduct continuing
studies to enhance comparisons of budget outlays,
credit authority, and tax expenditures.
(2) Federal mandate studies.--
(A) 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, to the extent practicable,
conduct a study of a legislative proposal
containing a Federal mandate.
(B) In conducting a study on
intergovernmental mandates under subparagraph
(A), the Director shall--
(i) solicit and consider information
or comments from elected officials
(including their designated
representatives) of State, local, or
tribal governments as may provide
helpful information or comments;
(ii) consider establishing advisory
panels of elected officials or their
designated representatives, of State,
local, or tribal governments if the
Director determines that such advisory
panels would be helpful in performing
responsibilities of the Director under
this section; and
(iii) if, and to the extent that the
Director determines that accurate
estimates are reasonably feasible,
include estimates of--
(I) the future direct cost of
the Federal mandate to the
extent that such costs
significantly differ from or
extend beyond the 5-year period
after the mandate is first
effective; and
(II) any disproportionate
budgetary effects of Federal
mandates upon particular
industries or sectors of the
economy, States, regions, and
urban or rural or other types
of communities, as appropriate.
(C) In conducting a study on private sector
mandates under subparagraph (A), the Director
shall provide estimates, if and to the extent
that the Director determines that such
estimates are reasonably feasible, of--
(i) future costs of Federal private
sector mandates to the extent that such
mandates differ significantly from or
extend beyond the 5-year time period
referred to in subparagraph
(B)(iii)(I);
(ii) any disproportionate financial
effects of Federal private sector
mandates and of any Federal financial
assistance in the bill or joint
resolution upon any particular
industries or sectors of the economy,
States, regions, and urban or rural or
other types of communities; and
(iii) the effect of Federal private
sector mandates in the bill or joint
resolution on the national economy,
including the effect on productivity,
economic growth, full employment,
creation of productive jobs, and
international competitiveness of United
States goods and services.
(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.
(2) Amount.--The term ``amount'', with respect to an
authorization of appropriations for Federal financial
assistance, means the amount of budget authority for
any Federal grant assistance program or any Federal
program providing loan guarantees or direct loans.
(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
(ii) in the case of a provision referred to
in paragraph (5)(A)(ii), means the amount of
Federal financial assistance eliminated or
reduced;
(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;
(C) shall be determined on the assumption
that--
(i) State, local, and tribal
governments, and the private sector
will take all reasonable steps
necessary to mitigate the costs
resulting from the Federal mandate, and
will comply with applicable standards
of practice and conduct established by
recognized professional or trade
associations; and
(ii) reasonable steps to mitigate the
costs shall not include increases in
State, local, or tribal taxes or fees;
and
(D) shall not include--
(i) estimated amounts that the State,
local, and tribal governments (in the
case of a Federal intergovernmental
mandate) or the private sector (in the
case of a Federal private sector
mandate) would spend--
(I) to comply with or carry
out all applicable Federal,
State, local, and tribal laws
and regulations in effect at
the time of the adoption of the
Federal mandate for the same
activity as is affected by that
Federal mandate; or
(II) to comply with or carry
out State, local, and tribal
governmental programs, or
private-sector business or
other activities in effect at
the time of the adoption of the
Federal mandate for the same
activity as is affected by that
mandate; or
(ii) expenditures to the extent that
such expenditures will be offset by any
direct savings to the State, local, and
tribal governments, or by the private
sector, as a result of--
(I) compliance with the
Federal mandate; or
(II) other changes in Federal
law or regulation that are
enacted or adopted in the same
bill or joint resolution or
proposed or final Federal
regulation and that govern the
same activity as is affected by
the Federal mandate.
(4) Direct savings.--The term ``direct savings'',
when used with respect to the result of compliance with
the Federal mandate--
(A) in the case of a Federal
intergovernmental mandate, means the aggregate
estimated reduction in costs to any State,
local, or tribal government as a result of
compliance with the Federal intergovernmental
mandate; and
(B) in the case of a Federal private sector
mandate, means the aggregate estimated
reduction in costs to the private sector as a
result of compliance with the Federal private
sector mandate.
(5) Federal intergovernmental mandate.--The term
``Federal intergovernmental mandate'' means--
(A) any provision in legislation, statute, or
regulation that--
(i) would impose an enforceable duty
upon State, local, or tribal
governments, except--
(I) a condition of Federal
assistance; or
(II) a duty arising from
participation in a voluntary
Federal program, except as
provided in subparagraph (B);
or
(ii) would reduce or eliminate the
amount of authorization of
appropriations for--
(I) Federal financial
assistance that would be
provided to State, local, or
tribal governments for the
purpose of complying with any
such previously imposed duty
unless such duty is reduced or
eliminated by a corresponding
amount; or
(II) the control of borders
by the Federal Government; or
reimbursement to State, local,
or tribal governments for the
net cost associated with
illegal, deportable, and
excludable aliens, including
court-mandated expenses related
to emergency health care,
education or criminal justice;
when such a reduction or
elimination would result in
increased net costs to State,
local, or tribal governments in
providing education or
emergency health care to, or
incarceration of, illegal
aliens; except that this
subclause shall not be in
effect with respect to a State,
local, or tribal government, to
the extent that such government
has not fully cooperated in the
efforts of the Federal
Government to locate,
apprehend, and deport illegal
aliens;
(B) any provision in legislation, statute, or
regulation that relates to a then-existing
Federal program under which $500,000,000 or
more is provided annually to State, local, and
tribal governments under entitlement authority,
if the provision--
(i)(I) would increase the stringency
of conditions of assistance to State,
local, or tribal governments under the
program; or
(II) would place caps upon, or
otherwise decrease, the Federal
Government's responsibility to provide
funding to State, local, or tribal
governments under the program; and
(ii) the State, local, or tribal
governments that participate in the
Federal program lack authority under
that program to amend their financial
or programmatic responsibilities to
continue providing required services
that are affected by the legislation,
statute, or regulation.
(6) Federal mandate.--The term ``Federal mandate''
means a Federal intergovernmental mandate or a Federal
private sector mandate, as defined in paragraphs (5)
and (7).
(7) Federal private sector mandate.--The term
``Federal private sector mandate'' means any provision
in legislation, statute, or regulation that--
(A) would impose an enforceable duty upon the
private sector except--
(i) a condition of Federal
assistance; or
(ii) a duty arising from
participation in a voluntary Federal
program; or
(B) would reduce or eliminate the amount of
authorization of appropriations for Federal
financial assistance that will be provided to
the private sector for the purposes of ensuring
compliance with such duty.
(8) Local government.--The term ``local government''
has the same meaning as defined in section 6501(6) of
title 31, United States Code.
(9) Private sector.--The term ``private sector''
means all persons or entities in the United States,
including individuals, partnerships, associations,
corporations, and educational and nonprofit
institutions, but shall not include State, local, or
tribal governments.
(10) Regulation; rule.--The term ``regulation'' or
``rule'' (except with respect to a rule of either House
of the Congress) has the meaning of ``rule'' as defined
in section 601(2) of title 5, United States Code.
(11) Small government.--The term ``small government''
means any small governmental jurisdictions defined in
section 601(5) of title 5, United States Code, and any
tribal government.
(12) State.--The term ``State'' has the same meaning
as defined in section 6501(9) of title 31, United
States Code.
(13) Tribal government.--The term ``tribal
government'' means any Indian tribe, band, nation, or
other organized group or community, including any
Alaska Native village or regional or village
corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688;
43 U.S.C. 1601 et seq.) which is recognized as eligible
for the special programs and services provided by the
United States to Indians because of their special
status as Indians.
* * * * * * *
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) any bill or joint resolution that is reported by
a committee unless the committee has published a
statement of the Director on the direct costs of
Federal mandates in accordance with section 423(f)
before such consideration, except this paragraph shall
not apply to any supplemental statement prepared by the
Director under section 424(d); and
(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) the bill, joint resolution, amendment,
motion, or conference report provides new
budget authority or new entitlement authority
in the House of Representatives or direct
spending authority in the Senate for each
fiscal year for such mandates included in the
bill, joint resolution, amendment, motion, or
conference report in an amount equal to or
exceeding the direct costs of such mandate; or
(B) the bill, joint resolution, amendment,
motion, or conference report includes an
authorization for appropriations in an amount
equal to or exceeding the direct costs of such
mandate, and--
(i) identifies a specific dollar
amount of the direct costs of such
mandate for each year up to 10 years
during which such mandate shall be in
effect under the bill, joint
resolution, amendment, motion or
conference report, and such estimate is
consistent with the estimate determined
under subsection (e) for each fiscal
year;
(ii) identifies any appropriation
bill that is expected to provide for
Federal funding of the direct cost
referred to under clause (i); and
(iii)(I) provides that for any fiscal
year the responsible Federal agency
shall determine whether there are
insufficient appropriations for that
fiscal year to provide for the direct
costs under clause (i) of such mandate,
and shall (no later than 30 days after
the beginning of the fiscal year)
notify the appropriate authorizing
committees of Congress of the
determination and submit either--
(aa) a statement that the
agency has determined, based on
a re-estimate of the direct
costs of such mandate, after
consultation with State, local,
and tribal governments, that
the amount appropriated is
sufficient to pay for the
direct costs of such mandate;
or
(bb) legislative
recommendations for either
implementing a less costly
mandate or making such mandate
ineffective for the fiscal
year;
(II) provides for expedited
procedures for the consideration of the
statement or legislative
recommendations referred to in
subclause (I) by Congress no later than
30 days after the statement or
recommendations are submitted to
Congress; and
(III) provides that such mandate
shall--
(aa) in the case of a
statement referred to in
subclause (I)(aa), cease to be
effective 60 days after the
statement is submitted unless
Congress has approved the
agency's determination by joint
resolution during the 60-day
period;
(bb) cease to be effective 60
days after the date the
legislative recommendations of
the responsible Federal agency
are submitted to Congress under
subclause (I)(bb) unless
Congress provides otherwise by
law; or
(cc) in the case that such
mandate that has not yet taken
effect, continue not to be
effective unless Congress
provides otherwise by law.
(b) Rule of Construction.--The provisions of subsection
(a)(2)(B)(iii) shall not be construed to prohibit or otherwise
restrict a State, local, or tribal government from voluntarily
electing to remain subject to the original Federal
intergovernmental mandate, complying with the programmatic or
financial responsibilities of the original Federal
intergovernmental mandate and providing the funding necessary
consistent with the costs of Federal agency assistance,
monitoring, and enforcement.
(c) Committee on Appropriations.--
(1) Application.--The provisions of subsection (a)--
(A) shall not apply to any bill or resolution
reported by the Committee on Appropriations of
the Senate or the House of Representatives;
except
(B) shall apply to--
(i) any legislative provision
increasing direct costs of a Federal
intergovernmental mandate contained in
any bill or resolution reported by the
Committee on Appropriations of the
Senate or House of Representatives;
(ii) any legislative provision
increasing direct costs of a Federal
intergovernmental mandate contained in
any amendment offered to a bill or
resolution reported by the Committee on
Appropriations of the Senate or House
of Representatives;
(iii) any legislative provision
increasing direct costs of a Federal
intergovernmental mandate in a
conference report accompanying a bill
or resolution reported by the Committee
on Appropriations of the Senate or
House of Representatives; and
(iv) any legislative provision
increasing direct costs of a Federal
intergovernmental mandate contained in
any amendments in disagreement between
the two Houses to any bill or
resolution reported by the Committee on
Appropriations of the Senate or House
of Representatives.
(2) Certain provisions stricken in senate.--Upon a
point of order being made by any Senator against any
provision listed in paragraph (1)(B), and the point of
order being sustained by the Chair, such specific
provision shall be deemed stricken from the bill,
resolution, amendment, amendment in disagreement, or
conference report and may not be offered as an
amendment from the floor.
(d) Determinations of Applicability to Pending Legislation.--
For purposes of this section, in the Senate, the presiding
officer of the Senate shall consult with the Committee on
Governmental Affairs, to the extent practicable, on questions
concerning the applicability of this part to a pending bill,
joint resolution, amendment, motion, or conference report.
(e) Determinations of Federal Mandate Levels.--For purposes
of this section, in the Senate, the levels of Federal mandates
for a fiscal year shall be determined based on the estimates
made by the Committee on the Budget.
* * * * * * *
----------
UNFUNDED MANDATES REFORM ACT OF 1995
* * * * * * *
TITLE I--LEGISLATIVE ACCOUNTABILITY AND REFORM
* * * * * * *
SEC. 103. COST OF REGULATIONS.
(a) Sense of the Congress.--It is the sense of the Congress
that Federal agencies should review and evaluate planned
regulations to ensure that the cost estimates provided by the
Congressional Budget Office will be carefully considered as
regulations are promulgated.
(b) Statement of Cost.--At the request of a committee
chairman or ranking minority member, the Director shall, to the
extent practicable, prepare a comparison between--
(1) an estimate by the relevant agency, prepared
under section 202 of this Act, of the costs of
regulations implementing an Act containing a Federal
mandate; and
(2) the cost estimate prepared by the Congressional
Budget Office for such Act when it was enacted by the
Congress.
(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.
(c) Preparation in Conjunction With Other Statement.--Any
agency may prepare any statement required under subsection (a)
in conjunction with or as a part of any other statement or
analysis, provided that the statement or analysis satisfies the
provisions of subsection (a).
* * * * * * *
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.
(b) Meetings Between State, Local, Tribal and Federal
Officers.--The Federal Advisory Committee Act (5 U.S.C. App.)
shall not apply to actions in support of intergovernmental
communications where--
(1) meetings are held exclusively between Federal
officials and elected officers of State, local, and
tribal governments (or their designated employees with
authority to act on their behalf) acting in their
official capacities; and
(2) such meetings are solely for the purposes of
exchanging views, information, or advice relating to
the management or implementation of Federal programs
established pursuant to public law that explicitly or
inherently share intergovernmental responsibilities or
administration.
[(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) In General.--Except as provided in subsection (b), before
promulgating any rule for which a written statement is required
under section 202, the agency shall identify and consider a
reasonable number of regulatory alternatives and from those
alternatives select the least costly, most cost-effective or
least burdensome alternative that achieves the objectives of
the rule, for--
(1) State, local, and tribal governments, in the case
of a rule containing a Federal intergovernmental
mandate; and
(2) the private sector, in the case of a rule
containing a Federal private sector mandate.
(b) Exception.--The provisions of subsection (a) shall apply
unless--
(1) the head of the affected agency publishes with
the final rule an explanation of why the least costly,
most cost-effective or least burdensome method of
achieving the objectives of the rule was not adopted;
or
(2) the provisions are inconsistent with law.
(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) collect from agencies the statements prepared
under section 202; and
(2) periodically forward copies of such statements to
the Director of the Congressional Budget Office on a
reasonably timely basis after promulgation of the
general notice of proposed rulemaking or of the final
rule for which the statement was prepared.
* * * * * * *
[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.
(4) Certain information as part of record.--Any
information generated under sections 202 and 203(a) (1)
and (2) that is part of the rulemaking record for
judicial review under the provisions of any other
Federal law may be considered as part of the record for
judicial review conducted under such other provisions
of Federal law.
(5) Application of other federal law.--For any
petition under paragraph (2) the provisions of such
other Federal law shall control all other matters, such
as exhaustion of administrative remedies, the time for
and manner of seeking review and venue, except that if
such other Federal law does not provide a limitation on
the time for filing a petition for judicial review that
is less than 180 days, such limitation shall be 180
days after a final rule is promulgated by the
appropriate agency.
(6) Effective date.--This subsection shall take
effect on October 1, 1995, and shall apply only to any
agency rule for which a general notice of proposed
rulemaking is promulgated on or after such date.
(b) Judicial Review and Rule of Construction.--Except as
provided in subsection (a)--
(1) any estimate, analysis, statement, description or
report prepared under this Act, and any compliance or
noncompliance with the provisions of this Act, and any
determination concerning the applicability of the
provisions of this Act shall not be subject to judicial
review; and
(2) no provision of this Act shall be construed to
create any right or benefit, substantive or procedural,
enforceable by any person in any administrative or
judicial action.
* * * * * * *
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