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115th Congress } { Rept. 115-798
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
UNFUNDED MANDATES INFORMATION AND TRANSPARENCY ACT OF 2017
_______
June 29, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Gowdy, 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 with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Summary and Purpose of the Legislation........................... 2
Background and Need for Legislation.............................. 2
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 6
Statement of General Performance Goals and Objectives............ 6
Legislative History.............................................. 6
Committee Consideration.......................................... 7
Roll Call Votes.................................................. 8
Explanation of Amendments........................................ 10
Application of Law to the Legislative Branch..................... 10
Duplication of Federal Programs.................................. 10
Disclosure of Directed Rule Makings.............................. 10
Federal Advisory Committee Act................................... 10
Unfunded Mandates Statement...................................... 10
Earmark Identification........................................... 10
Committee Estimate............................................... 10
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 11
Section-by-Section Analysis...................................... 14
Changes in Existing Law Made by the Bill, as Reported............ 17
Correspondence................................................... 36
Minority Views................................................... 42
The amendment is as follows:
At the end of the bill, add the following new section:
SEC. 14. REAUTHORIZATION.
Section 109 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1516) is amended to read as follows:
``SEC. 109. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated to the Congressional Budget
Office $1,500,000 for each of fiscal years 2018 through 2024 to carry
out the provisions of this title.''.
Summary and Purpose of Legislation
The Unfunded Mandates Information and Transparency Act of
2017 (UMITA), H.R. 50, amends the Unfunded Mandates Reform Act
of 1995 (UMRA) to improve regulatory processes and codify
regulatory principles established in Executive Order 12866.
H.R. 50 extends the UMRA coverage to most independent agencies
and all final rules, and increases early consultation
requirements and retrospective regulatory reviews.
Background and Need for Legislation
Enacted in 1995, UMRA limits unfunded mandates on state,
local, and tribal governments and the private sector. An
unfunded mandate is an obligation imposed on one or more state,
local, or tribal governments or the private sector by a federal
law or regulation without federal funding to offset the costs.
Unfunded mandates push costs to implement federal programs onto
state, local, and tribal governments, and the private sector.
UMRA directs agencies to draft written statements for final
rules that impose costs of $100 million or more (``major
rules'')\1\ on one or more state, local, or tribal government
or the private sector. If a rule reaches this threshold amount,
UMRA also requires agencies to consider less expensive
alternatives to achieve the rule's objective. UMRA also
requires agencies solicit input of the regulated stakeholders
in promulgating a final major rule.
---------------------------------------------------------------------------
\1\5 U.S.C. Sec. 804(2).
---------------------------------------------------------------------------
In December 2016, the Committee solicited input from state
governors and legislators on the effects unfunded mandates have
on their state, if any.\2\ The Committee received nearly 800
responses from states, U.S. territories, and organizations
representing state and local governments. The responses
identified numerous costly unfunded mandates on state, local,
and tribal governments and the private sector.\3\ For example,
Tennessee Governor Bill Haslam wrote the EPA provided Tennessee
with only 8 percent of the $32 million it will cost the state
to implement Clean Water Act programs.\4\ The U.S. Virgin
Islands reported receiving just $5.4 million in federal aid to
pay its $36 million in expenses to implement Clean Air Act
regulations.\5\
---------------------------------------------------------------------------
\2\Letter from Jason Chaffetz, Chairman, H. Comm. on Oversight &
Gov't Reform (Dec. 16, 2016) (on file with the Committee).
\3\Letters on file with the Committee.
\4\Letter from Bill Haslam, Governor, Tenn., to Jason Chaffetz,
Chairman, H. Comm. on Oversight & Gov't Reform (Jan. 20, 2017) (on file
with the Committee).
\5\Letter from Kenneth Mapp, Governor, U.S. Virgin Islands, to
Jason Chaffetz, Chairman, H. Comm. on Oversight & Gov't Reform. (Jan.
20, 2017) (on file with the Committee).
---------------------------------------------------------------------------
During an April 2017 hearing, the Subcommittee on
Intergovernmental Affairs heard testimony from elected state
and local government officials. The witnesses explained
challenges federal unfunded mandates impose on governments and
local businesses.\6\ North Carolina State Senator Jim Davis
testified regarding the experience of a business owner from his
district, in which a federal compliance officer required the
business to reduce boiler system arsenic emissions from 12
parts per million (PPM) to 4 PPM.\7\ Senator Davis testified,
``After spending over $200,000 on consultants, lawyers, and
other experts . . . the business owner learned two things: One,
the technology didn't exist to reduce it to four, and secondly,
arsenic occurs naturally in the air at 12 parts per
million.''\8\ It was one example of an unfunded federal mandate
forcing a small business owner to waste money on compliance
with nonsensical requirements, rather than investing in the
business and its employees.\9\
---------------------------------------------------------------------------
\6\Unfunded Mandates: Examining Federally Imposed Burdens on State
and Local Government: Hearing Before the Subc. on Intergovernmental
Affairs of the H. Comm. on Oversight & Gov't Reform, 115th Cong. (Apr.
26, 2017), https://www.gpo.gov/fdsys/pkg/CHRG-115hhrg26556/pdf/CHRG-
115hhrg26556.pdf [hereinafter Unfunded Mandates: Hearing (Apr. 26,
2017)].
\7\Id. at 14 (statement of Jim Davis, State Senator, North
Carolina).
\8\Id.
\9\Id.
---------------------------------------------------------------------------
The Subcommittee also heard testimony on federal officials'
apathetic attitude towards consulting with state and local
officials during rulemaking.\10\ Kentucky County Executive Gary
Moore testified on behalf of the National Association of
Counties:
---------------------------------------------------------------------------
\10\Id. at 28 (2017) (testimony of Hon. Gary Moore, Cnty. Exec.,
Boone Cnty., KY) (``We often find that the agencies just want to check
a box instead of having meaningful discussion with us as
intergovernmental partners before and throughout the rulemaking
cycle.''); id. at 21 (statement of Wayne L. Niederhauser, Sen., Utah
Sen. on behalf of Council of State Governments) (``local governments
have admirable goals also, more important to citizens, more likely to
be effective, and less expensive.'').
Time and time again, we see major Federal regulations
like Waters of the U.S., the ozone rule, and the
Department of Labor's overtime rule finalized with
little or no consultation with State and local
governments, even though these regulations have major
practical and financial implications for counties.\11\
---------------------------------------------------------------------------
\11\Unfunded Mandates: Hearing (Apr. 26, 2017) at 18 (statement of
Gary Moore, Cnty. Executive, Boone Cnty., Kentucky).
The Committee explored the lack of meaningful federal-state
consultation at a Committee hearing held on February 27, 2018,
held in collaboration with the Speaker's Intergovernmental Task
Force.\12\ During the hearing, New Mexico Governor Susana
Martinez, Utah Governor Gary Herbert, and Idaho Governor Leroy
``Butch'' Otter testified to a lack of partnership during
federal agency rulemaking.\13\ The Governors testified a lack
of communication between federal officials and their states
precludes exploring more efficient alternatives.\14\ Providing
another example of the disparity between state government and
federal government regulators, Governor Martinez testified New
Mexico can review oil and gas permits in 10 days whereas it
takes the U.S. Bureau of Land Management an average of 250
days. She testified this delay costs New Mexico $1.9 million
per day.\15\ H.R. 50 enhances consultation requirements to give
state, local, and tribal governments a greater voice in the
federal rulemaking process.
---------------------------------------------------------------------------
\12\Federalism Implications of Treating States as Stakeholders:
Hearing Before the H. Comm. on Oversight & Gov't Reform, 115th Cong.
(Feb. 27, 2018), https://oversight.house.gov/hearing/federalism-
implications-treater-states-stakeholders/.
\13\Id.
\14\Id. at 20 (testimony of Gary Herbert, Governor, Utah) (``the
States, which are closer to the people, much more responsive to the
people, quicker to act, and doing it less expensively and more
effectively, are where in fact we should be working. States are finding
solutions and improving people's lives.''); id. at 62-63 (testimony of
Leroy ``Butch'' Otter, Governor, Idaho) (``Nearly every public policy
that we deal with in Idaho we have to factor in what the Federal
Government wants us to do, as well as how much of the cost they want us
to suffer. So I tell you when we establish public policy, we really
need to see who it helps and who it harms. And sometimes there's very
little attention or care paid, especially from the Federal level.'').
\15\Id. at 54 (testimony of Susana Martinez, Governor, New Mexico).
---------------------------------------------------------------------------
In 1993, President Clinton signed Executive Order 12866 to
provide federal agencies with additional requirements in the
rulemaking process. The Executive Order recognized the private
sector's contribution to economic growth and the state, local,
and tribal government role and relationship to the federal
government.\16\ It requires federal agencies' rulemaking
processes be constrained to certain principles.\17\ However,
federal agency compliance with the Executive Order may be
limited by the nature of an executive order as executive branch
policy, not law.\18\ H.R. 50 codifies most of these rulemaking
guidelines, including exploring if intended results can be
achieved through modifying current regulations, identifying
alternatives to direct regulation, and using the best available
information to make agency decisions.
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\16\Exec. Order No. 12,866, 3 C.F.R. Sec. 638 (1994).
\17\Id.
\18\See generally Peter Raven-Hansen, Making Agencies Follow
Orders: Judicial Review of Agency Violations of Executive Order 12,291,
285 Duke L.J. (1983).
---------------------------------------------------------------------------
By updating UMRA and correcting agencies' misinterpretation
of the law, this bill will help give effect to Congress's
original intent in enacting UMRA two decades prior. In a 2011
hearing before the Subcommittee on Technology, Information
Policy, Intergovernmental Relations, and Procurement Reform,
the Government Accountability Office (GAO) testified agency
interpretation of UMRA's cost definitions could prevent UMRA
rules from being triggered.\19\ In written testimony, GAO
stated, ``a rule could reduce industry gross revenues by over
$100 million in a single year, and therefore be economically
significant, yet not trigger UMRA because it does not require
expenditures above UMRA's threshold in any year.''\20\ H.R. 50
addresses this problem by expanding the federal mandate
definition of ``direct costs'' to require agencies to account
for variables such as foregone profits.
---------------------------------------------------------------------------
\19\Unfunded Mandates and Regulatory Overreach: Hearing Before the
H. Subcomm. on Tech., Information Policy, Intergovernmental Relations &
Procurement Reform of the H. Comm. on Oversight & Govt. Reform, 112th
Congress (Feb. 15, 2011), https://www.gpo.gov/fdsys/pkg/CHRG-
112hhrg67172/pdf/CHRG-112hhrg67172.pdf [hereinafter Unfunded Mandates
and Regulatory Overreach: Hearing (Feb. 15, 2011)].
\20\Id. at 41 (statement of Denise M. Fantone, Director Strategic
Issues, Gov't Accountability Office).
---------------------------------------------------------------------------
In a 2012 report, GAO found agencies had not published a
notice of proposed rulemaking for 35 percent of major rules--
those rules with an annual effect on the economy of $100
million or more--issued from 2003 to 2010.\21\ UMRA requires a
written statement only for final rules ``for which a general
notice of proposed rulemaking was published.''\22\ H.R. 50
requires each final rule imposing an annual cost of $100
million or more on state, local, and tribal governments and the
private sector be subject to UMRA's requirements, regardless of
whether a notice of proposed rulemaking was issued.
---------------------------------------------------------------------------
\21\Gov't Accountability Office, GAO-13-21, Federal Rulemaking:
Agencies Could Take Additional Steps to Respond to Public Comments, 7
(2012), https://www.gao.gov/assets/660/651052.pdf; Id. at 8.
\22\2 U.S.C. Sec. 1532.
---------------------------------------------------------------------------
At the 2011 hearing, the Subcommittee also heard from GAO
about the impact current regulations have on stakeholders. GAO
observed stakeholders it consulted ``most frequently suggested
agencies evaluate the effectiveness of mandates after they had
been implemented . . . [and . . .] evaluation of existing rules
through retrospective reviews has the potential of being able
to better assess the effectiveness of UMRA, among other
benefits.''\23\
---------------------------------------------------------------------------
\23\Unfunded Mandates and Regulatory Overreach: Hearing (Feb. 15,
2011) (testimony of Denise M. Fantone, Director Strategic Issues, Gov't
Accountability Office).
---------------------------------------------------------------------------
In January 2011, President Obama's Executive Order 13563
also identified ``retrospective analyses of existing rules'' as
an important component to improve regulation and regulatory
review. Executive Order 13563 encouraged agencies to ``modify,
streamline, expand, or repeal'' significant regulations that
are ``outmoded, ineffective, insufficient, or excessively
burdensome.''\24\ H.R. 50 provides for further retrospective
analyses by requiring agencies to conduct retrospective
analyses on their current regulations upon a request from the
chair or ranking minority member of a congressional committee.
---------------------------------------------------------------------------
\24\Exec. Order No. 13,563 Sec. 6(a), 3 C.F.R. 215, 217 (2012),
reprinted in 5 U.S.C. app. Sec. 601 (Supp. V 2011).
---------------------------------------------------------------------------
In the 2011 hearing, GAO cited ``among the most common
reasons'' for not complying with UMRA was ``the rules were
issues by independent regulatory agencies not covered by the
act [UMRA].''\25\ In its 2016 annual UMRA report to Congress,
the Office of Management and Budget (OMB) noted the importance
of transparent rulemaking by independent agencies, which are
exempt under UMRA.\26\ The report stated:
---------------------------------------------------------------------------
\25\Unfunded Mandates and Regulatory Overreach: Hearing (Feb. 15,
2011) (testimony of Denise M. Fantone, Director Strategic Issues, Gov't
Accountability Office).
\26\Office of Mgmt. & Budget, 2016 Draft Report to Congress on the
Benefits and Costs of Federal Regulations and Agency Compliance with
the Unfunded Mandates Reform Act, 32 (2017), https://
obamawhitehouse.archives.gov/sites/default/files/omb/assets/
legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf.
We emphasize . . . for the purposes of informing the
public and obtaining a full accounting, it would be
highly desirable to obtain better information on the
benefits and costs of the rules issued by independent
agencies. The absence of such information is a
continued obstacle to transparency, and it might also
have adverse effects on public policy. Consideration of
costs and benefits is a pragmatic instrument for
ensuring that regulations will improve social welfare;
an absence of information on costs and benefits can
lead to inferior decisions.\27\
---------------------------------------------------------------------------
\27\Id.
H.R. 50 requires most independent agencies to comply with UMRA.
H.R. 50 also subjects those agencies to the principles in
Executive Order 12866, which means the agencies are required to
conduct cost-benefit analyses of their rulemakings.
H.R. 50 aims to promote informed and deliberate decisions
by Congress and federal agencies concerning the appropriateness
of federal mandates.
Statement of Oversight Findings and Recommendations of the Committee
In accordance 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 previous section.
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.
Legislative History
On January 3, 2017, Representative Virginia Foxx (R-NC)
introduced H.R. 50, the Unfunded Mandates Information and
Transparency Act of 2017, with Representative Henry Cuellar (D-
TX). H.R. 50 was referred to the Committee on Oversight and
Government Reform, with additional referrals to the Committee
on the Budget, Committee on Rules, and the Committee on the
Judiciary. The Committee on Oversight and Government Reform
considered H.R. 50 at a business meeting on March 15, 2018 and
ordered the bill favorably reported, as amended, by a recorded
vote of 20 ayes to 10 nays.
On April 26, 2017, at a hearing entitled Unfunded Mandates:
Examining Federally Imposed Burdens on State and Local
Government, the Committee on Oversight and Government Reform,
Subcommittee on Intergovernmental Affairs, heard testimony from
Utah State Senator Wayne Niederhauser, North Carolina State
Senator Jim Davis, Boone County Executive Gary Moore, Kansas
City Councilman Jermaine Reed, and Supervisor of Fairfax County
Board of Supervisors Jeff McKay. The witnesses highlighted
specific examples of how unfunded federal mandates limit
budgetary flexibility and impact their business communities.
They provided suggestions as to how federal objectives can
continue to be advanced without burdening states and local
governments.
In the 114th Congress, Representative Foxx introduced H.R.
50, the Unfunded Mandates Information and Transparency Act of
2015, a nearly identical bill to H.R. 50. On January 27, 2015,
the Committee on Oversight and Government Reform ordered H.R.
50 favorably reported by a recorded vote of 20 ayes to 13 nays,
and on February 4, 2015, the House passed the bill by a
recorded vote of 250 ayes to 173 nays.
In the 113th Congress, Representative Foxx introduced H.R.
899, the Unfunded Mandates Information and Transparency Act of
2014, a nearly identical bill to H.R. 50. On July 24, 2013, the
Committee on Oversight and Government Reform ordered H.R. 899
favorably reported by a recorded vote of 22 ayes to 17 nays,
and on February 28, 2014, the House passed the bill by a
recorded vote of 234 ayes to 176 nays.
In the 112th Congress, Representative Foxx introduced H.R.
373, the Unfunded Mandates Information and Transparency Act of
2011, a nearly identical bill to H.R. 50. On September 21,
2011, the Subcommittee on Technology, Information Policy,
Intergovernmental Relations and Procurement Reform of the
Committee on Oversight and Government Reform considered H.R.
373, and forwarded the bill, as amended, to the Committee on
Oversight and Government Reform by a recorded vote of 5 ayes to
4 nays. On November 17, 2011, the Committee ordered the bill
favorably reported, as amended, by a recorded vote of 22 ayes
12 nays. H.R. 373 was included in H.R. 4078, the Red Tape
Reduction and Small Business Job Creation Act, which the House
passed on July 26, 2012, by recorded vote of 245 ayes to 172
nays.
The Subcommittee on Technology, Information Policy,
Intergovernmental Relations and Procurement Reform held three
hearings in the 112th Congress regarding unfunded mandates. On
February 15, 2011, the Subcommittee held a hearing entitled,
Unfunded Mandates and Regulatory Overreach; a hearing entitled,
Unfunded Mandates and Regulatory Overreach on March 30, 2011;
and a hearing entitled, Unfunded Mandates, Regulatory Burdens
and the Role of the Office of Information and Regulatory
Affairs, on May 25, 2011.
In the 111th Congress, Representative Foxx introduced H.R.
2255, the Unfunded Mandates Information and Transparency Act of
2009, a substantially similar bill to H.R. 50.
In the 110th Congress, Representative Foxx introduced H.R.
6964, the Unfunded Mandates Information and Transparency Act of
2008, a substantially similar bill to H.R. 50.
Committee Consideration
On March 15, 2018, the Committee met in open session and,
with a quorum being present, ordered the bill favorably
reported, as amended, by a roll call vote of 20 ayes to 10
nays.
Explanation of Amendments
During Committee consideration of the bill, Representative
Foxx offered an amendment to reauthorize funding of $1.5
million to the Congressional Budget Office (CBO) each year from
2018 to 2024 to perform duties required under UMRA. This
reduces funding by $3 million originally authorized under UMRA,
and funds them according to CBO's actual expenditures. The
Committee adopted the Foxx amendment by voice vote.
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 provides for additional safeguards with respect to
imposing federal mandates. As such, this bill does not relate
to employment or access to public services and accommodations.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII 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 bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
Federal Advisory Committee Act
The Committee finds the legislation does not establish or
authorize the establishment of an advisory committee within the
definition of Section 5(b) of the appendix to title 5, United
States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget and
Impoundment Control Act (Pub. L. 113-67) the Committee has
included a letter received from the Congressional Budget Office
below.
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 of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 23, 2018.
Hon. Trey Gowdy,
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. 50, the Unfunded
Mandates Information and Transparency Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 50--Unfunded Mandates Information and Transparency Act of 2017
Summary: H.R. 50 would amend the Unfunded Mandates Reform
Act of 1995 (UMRA) to increase the information available to the
Congress and the public concerning federal mandates in proposed
legislation and regulations. Enacting the bill would codify
many current practices of federal agencies as they analyze the
potential effects of proposed regulations. The bill also would
broaden the coverage of UMRA to require independent regulatory
agencies to comply with standards relating to rulemaking and to
allow judicial review of regulatory actions that fail to comply
with that law. Under current law, independent regulatory
agencies are exempt from complying with UMRA.
H.R. 50 also would amend the Congressional Budget and
Impoundment Control Act of 1974 to establish a point of order
that a Member of Congress may raise against legislation that
creates a private-sector mandate with costs above the threshold
established in UMRA.\1\ The bill also would require CBO, upon
request, to assess the costs to state, local, and tribal
governments resulting from legislation that would change
conditions that must be met to receive federal assistance.
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\1\The intergovernmental and private-sector cost thresholds
established in UMRA were $50 million and $100 million, respectively, in
1996; they are adjusted annually for inflation. In 2018, the thresholds
are $80 million for intergovernmental mandates and $160 million for
private-sector mandates.
---------------------------------------------------------------------------
CBO estimates that carrying out the new requirements placed
on independent regulatory agencies would require additional
resources. Assuming the appropriation of necessary amounts, CBO
estimates implementing the bill would have a net discretionary
cost of $6 million over the 2019-2023 period.
CBO estimates that enacting H.R. 50 would affect direct
spending; therefore, pay-as-you-go procedures apply. However,
CBO estimates that any net change in direct spending would not
be significant. Enacting the bill would not affect revenues.
CBO estimates that enacting H.R. 50 would not significantly
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2029.
H.R. 50 would increase the costs of existing mandates on
public and private-sector entities to pay fees, but CBO
estimates that the additional costs would be small and would
fall well below the annual thresholds for intergovernmental and
private-sector mandates established in UMRA ($80 million and
$160 million in 2018, respectively, adjusted annually for
inflation).
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 50 is shown in the following table.
The costs of the legislation fall within budget function 370
(commerce and housing credit).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------
2018 2019 2020 2021 2022 2023 2019-2023
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATIONa
Estimated Authorization Level........................ 0 * 1 1 2 2 6
Estimated Outlays.................................... 0 * 1 1 2 2 6
----------------------------------------------------------------------------------------------------------------
aIn addition, CBO estimates that implementing the bill would require increased spending by some agencies that
have permanent spending authority under current law. However, CBO estimates that the legislation would not
have a significant effect on direct spending because CBO expects that those agencies would offset the bill's
new costs by collecting additional fees.
Components may not sum to totals because of rounding; * = between zero and $500,000.
Basis of estimate: For this estimate, CBO assumes that H.R.
50 will be enacted near the end of 2018, that the necessary
amounts will be appropriated near the start of each fiscal year
beginning in 2019, and that spending patterns will follow
historical patterns for regulatory analysis activities.
H.R. 50 would amend UMRA to codify certain current
practices, including those listed in Executive Orders 12866 and
13563. Those orders require federal agencies to analyze the
effects of regulations on state, local, and tribal governments
and on the private sector and to prepare detailed cost-benefit
analyses of rules that would result in total economic effects
estimated at $100 million or more annually. In addition, H.R.
50 would codify Executive Order 13579 and remove a current-law
provision that exempts independent regulatory agencies from
complying with rulemaking standards established in UMRA.
Under current law, the adequacy of certain federal analyses
and statements developed in accordance with UMRA is not subject
to judicial review. Under H.R. 50, such products of the
regulatory process could be challenged in the courts. CBO
cannot predict the frequency or outcome of such challenges, but
any resulting costs probably would be borne primarily by the
Department of Justice. Any additional costs for litigation
stemming from this provision would be subject to the
availability of appropriations.
Discretionary costs
Assuming the appropriation of necessary amounts, CBO
estimates implementing the bill would have a net discretionary
cost of $6 million over the 2019-2023 period.
Independent Regulatory Agencies. Fifteen independent
agencies would be affected by H.R. 50, including the Securities
and Exchange Commission (SEC), the Federal Deposit Insurance
Corporation (FDIC), the Office of the Comptroller of the
Currency (OCC), and the Federal Communications Commission
(FCC).
On the basis of information from several affected agencies,
CBO expects that the bill's requirements would increase the
workload of independent regulatory agencies. They would be
required to devote more resources to broader analyses of
regulations and to support judicial reviews and hearings
pertaining to agency regulations.
CBO estimates that at least 11 independent regulatory
agencies that receive discretionary appropriations would face
an increased workload under H.R. 50. Annual costs per agency
would vary depending on their size and the number of major
rules they review each year. CBO estimates that each agency
would require, on average, 1 to 3 additional staff to comply
with the bill's requirements (depending on its size and the
number of major rules that it issues each year) and that annual
salary and benefits for each staff member would total about
$150,000 (based on compensation levels in recent years).
Under current law, four of those agencies--the FCC, the
SEC, the Federal Energy Regulatory Commission, the Nuclear
Regulatory Commission--are authorized to collect fees
sufficient to offset their annual appropriations. CBO estimates
that those four agencies would incur gross costs of about $16
million over the 2019-2023 period, and we assume that future
appropriations would direct those agencies to offset those
costs with fees. CBO also estimates that agencies not
authorized to collect fees would eventually incur additional
annual costs of less than $500,000 each, resulting in a total
cost of $5 million over the 5-year period.
Other Agencies. H.R. 50 also would require the Office of
Information and Regulatory Affairs (OIRA) to provide guidance
and oversight to the independent agencies to ensure that their
regulations are consistent with the requirements of UMRA. Using
information from the agency, CBO expects that OIRA ultimately
would require one new staff member to handle the additional
workload. Using an average salary of $150,000, CBO estimates
the requirement would cost about $1 million over the 2019-2023
period, assuming availability of appropriated funds.
Finally, H.R. 50 would require CBO, at the request of any
Chair or Ranking Member of a Congressional committee, to assess
costs to state, local, and tribal governments resulting from
legislation that would change conditions that must be met to
receive federal assistance. CBO estimates that the costs of a
single assessment would not be significant; however, if CBO
were required to prepare a sizable number of assessments, the
agency's administrative costs would increase. CBO estimates
that those costs in any given year would total well below
$500,000, and any such costs would be subject to the
availability of appropriated funds.
Mandatory costs
Four independent regulatory agencies that would be required
to meet the new regulatory standards under H.R. 50 have
permanent spending authority. CBO estimates that the affected
agencies, including the FDIC and the OCC, each would incur
additional annual costs of $1 million, on average, to fulfill
the bill's requirements. Those agencies collect fees from the
industries they regulate to cover administrative expenses. CBO
estimates that such collections would largely offset the costs
of implementing the bill over the 2019-2028 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. CBO estimates that the net effects of H.R. 50 on
direct spending would not be significant. Enacting the bill
would not affect revenues.
Increase in long-term direct spending and deficits: CBO
estimates that enacting H.R. 50 would not significantly
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2029.
Mandates: H.R. 50 would increase the costs of existing
mandates on public and private entities that 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. Such a change would
increase their workload and annual operating costs. Some
independent agencies collect fees sufficient to offset the cost
of their regulatory activities. Because those agencies are
expected to raise fees to offset the costs of their additional
workload, CBO estimates that the bill would increase the cost
of existing mandates on public and private entities that would
be required to pay those higher fees.
Using information from the independent agencies, CBO
estimates that the cost of implementing the additional
regulatory activities would not be significant. Therefore, any
additional cost to public and private entities would be small
and would fall well below the annual thresholds established in
UMRA for intergovernmental and private-sector mandates ($80
million and $160 million in 2018 respectively, adjusted
annually for inflation).
Estimate prepared by: Federal costs: Jon Sperl; Mandates:
Jon Sperl.
Estimate reviewed by: Kim P. Cawley, Chief, Natural and
Physical Resources Unit; Susan Willie, Chief, Public and
Private Mandates Unit; H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis; Theresa Gullo, Assistant Director
for Budget Analysis.
Section-by-Section Analysis
Section 1. Short title
Section 1 establishes the short title of the bill.
Sec. 2. Purpose
Section 2 describes the purposes of the bill.
Sec. 3. Providing for Congressional Budget Office studies on policies
involving changes in conditions of grant aid
Section 3 amends the Congressional Budget Act of 1974 by
requiring the Congressional Budget Office (CBO) to perform,
upon request by the Chair or Ranking Minority Member of a
Standing Committee of the U.S. House of Representatives or the
U.S. Senate, 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.
Sec. 4. Clarifying the definition of direct costs to reflect
Congressional Budget Office practice
Section 4 amends the definition of ``direct costs'' in the
Congressional Budget Act of 1974 to codify current CBO
practice--calculating the costs state, local, and tribal
governments ``incur'' as a result of mandates. The definitional
change also ensures federal agencies account for private sector
variables, such as future loss of business profits, costs
passed onto consumers and other entities, and the private
sector's behavioral changes.
Sec. 5. Expanding the scope of reporting requirements to include
regulations imposed by independent regulatory agencies
Section 5 amends the Congressional Budget Act of 1974 by
requiring independent regulatory agencies to comply with the
Unfunded Mandates Reform Act of 1995 (UMRA), with the exception
of the Board of Governors of the Federal Reserve System, the
Federal Open Market Committee, and the Consumer Financial
Protection Bureau.
Sec. 6. Amendments to replace Office of Management and Budget with
Office of Information and Regulatory Affairs
Section 6 amends the Unfunded Mandates Reform Act of 1995
by transferring responsibility for agency compliance with UMRA
requirements from the Director of the Office of Management and
Budget to the Administrator of the Office of Information and
Regulatory Affairs.
Sec. 7. Applying substantive point of order to private sector mandates
Sections 7 amends the Congressional Budget Act of 1974 by
adding a point of order for legislative mandates that exceed
the UMRA threshold with regard to the private sector, unless
budgetary expenses are allocated.
Sec. 8. Regulatory process and principles
Section 8 amends the Unfunded Mandates Reform Act of 1995
by implementing a series of principles for all ``regulatory
actions'' in accordance with the principles set out in
Executive Orders 12866 and 13563. Unless otherwise expressly
prohibited by law, each agency must consider the effect of a
potential regulation on state, local, and tribal governments
and the private sector. Specifically, each agency must:
1. Clearly identify the problem the regulation
addresses and its significance;
2. Determine whether existing regulations should be
modified to achieve the intended goal more effectively;
3. Identify and assess alternatives to direct
regulation, such as economic incentives;
4. When a regulation is necessary, enact the
regulation in the most cost-effective manner possible,
considering total cost of compliance, innovation
incentives, and other factors;
5. Conduct a cost-benefit analysis of a contemplated
regulation and only promulgate a regulation if the
benefits outweigh the costs;
6. Base each regulatory decision on the best
reasonably available data;
7. Consider alternative forms of the regulation and
show preference for performance-based regulations
rather than prescriptive regulation;
8. Avoid promulgating a regulation that duplicates or
conflicts with an existing regulation;
9. Author each regulation in a way that minimize its
cumulative costs; and
10. Draft each regulation in simple, easily
understood language.
This section also defines ``regulatory action.''
Sec. 9. Expanding the scope of statements to accompany significant
regulatory actions
Section 9 amends the Unfunded Mandates Reform Act of 1995
to require federal agencies prepare a written statement,
including several specific elements, before publishing a
proposed or final rule that has an effect on state, local, or
tribal governments, or on the private sector, of $100 million
or more in any one year. This section aligns UMRA with Section
3 of Executive Order 12866 by removing the words ``adjusted
annually for inflation'' from the dollar threshold.
The section also requires agencies to assess new private
sector costs, such as lost future profits, costs passed onto
consumers and other entities, and behavioral changes.
Section 9 also requires agencies publish the previously
described written statement within six months of promulgating a
final rule if the rule was not preceded by a notice of proposed
rulemaking. This ensures agencies cannot avoid conducting the
required analysis by foregoing a notice of proposed rulemaking.
Sec. 10. Enhanced stakeholder consultation
Section 10 extends the Unfunded Mandates Reform Act of
1995's existing requirement that agencies receive meaningful
and timely input during the development of regulatory mandates
from state, local, and tribal governments to include the
private sector. This section codifies policies instructing
agencies on how to effectuate this requirement: consultations
occur early in the process; a variety of state, local, and
private sector input is considered in computing costs and
benefits; compliance costs are addressed during consultations;
and input is solicited on alternative methods of compliance,
flexibility, and whether the contemplated regulation will
duplicate or conflict with similar law in other levels of
government.
Sec. 11. New authorities and responsibilities for Office of Information
and Regulatory Affairs
Section 11 requires the Office of Information and
Regulatory Affairs (OIRA) to determine if an agency's
regulation, in which a written statement is required, is
consistent with this bill and other laws, and does not conflict
with other agencies' policies or actions. If OIRA determines
the agency has not met these requirements, OIRA must notify the
agency and request compliance before the regulation is
finalized. Section 11 also requires OIRA submit an annual
report to Congress detailing agency compliance with sections
202 and 204 of the Unfunded Mandates Reform Act of 1995.
Section 12. Retrospective analysis of existing federal regulations
Section 12 amends the Unfunded Mandates Reform Act of 1995
to require each federal agency to conduct a retrospective
analysis of an existing federal regulation, upon request by the
Chair or Ranking Minority Member of a Standing or Select
Committee of the U.S. House of Representatives or the U.S.
Senate. The analysis must include: a copy of the regulation;
the regulation's continued necessity; the nature of comments or
complaints received concerning the regulation; an explanation
of the extent to which the mandate duplicates or conflicts with
any other regulation or rule; a description of the degree to
which technology or economic conditions have changed in the
area affected by the federal regulation; analysis of
retrospective direct costs and benefits, including any study
conducted outside the Federal government; and litigation
history challenging the regulation.
Sec. 13. Expansion of judicial review
Section 13 extends judicial review to determine an agency's
choice of least costly, most cost-effective, or least
burdensome regulatory alternative. This section permits a court
to stay, enjoin, or invalidate a rule if an agency fails to
complete the required UMRA analysis or to adhere to its
regulatory principles.
Sec. 14. Reauthorization
Section 14 reauthorizes funding for the Congressional
Budget Office to complete its requirements under UMRA.
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, and 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, the Federal
Open Market Committee, or the Consumer Financial
Protection Bureau.
(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).
* * * * * * *
[SEC. 109. AUTHORIZATIONS OF APPROPRIATIONS.
[There are authorized to be appropriated to the Congressional
Budget Office $4,500,000 for each of the fiscal years 1996,
1997, 1998, 1999, 2000, 2001, and 2002 to carry out the
provisions of this title.]
SEC. 109. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Congressional
Budget Office $1,500,000 for each of fiscal years 2018 through
2024 to carry out the provisions of this title.
* * * * * * *
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.
(8) An assessment of the effects that the proposed
rulemaking or final rule are expected to have on
private property owners, including the use and value of
affected property.
(b) 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.
* * * * * * *
MINORITY VIEWS
H.R. 50, the Unfunded Mandates Information and Transparency
Act of 2017, is significantly flawed. The bill would be an
assault on the nation's health, safety, and environmental
protections, erect new barriers to unnecessarily slow down the
regulatory process, and give regulated industries an unfair
advantage to water down consumer protections.
Section 5 of the bill would repeal federal law 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. 50 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 10 would require agencies to provide private sector
entities with an advance opportunity to affect proposed
regulations. It would require agencies to consult with private
sector entities ``as early as possible, before the issuance of
a notice of proposed rulemaking, continue through the final
rule stage, and be integrated explicitly into the rulemaking
process.''
Committee Democrats agree that agencies should consult with
regulated industries regarding proposed rules that are expected
to impact those entities, but regulated industries should not
receive an advantage in the rulemaking process over other
stakeholders.
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, ``[a]t 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.'' 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 and
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. UMRA currently prohibits courts from using the law to
stay, enjoin, invalidate, or otherwise affect an agency rule.
H.R. 50 would fundamentally change the law by eliminating this
prohibition. This process could be abused by regulated
industries taking agencies to court over regulations they view
as unfavorable.
Elijah E. Cummings,
Ranking Member.
[all]
