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   						   Calendar No. 738

115th Congress}                                            { Report
                                 SENATE
  2d Session  }                                            { 115-447
=====================================================================
                              
          UNFUNDED MANDATES INFORMATION AND TRANSPARENCY ACT OF 2017

                               __________

                              R E P O R T

                                 OF THE

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              TO ACCOMPANY

                                H.R. 50

          TO PROVIDE FOR ADDITIONAL SAFEGUARDS WITH RESPECT TO
           IMPOSING FEDERAL MANDATES, AND FOR OTHER PURPOSES

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

               December 19, 2018.--Ordered to be printed
               
               
               U.S. GOVERNMENT PUBLISHING OFFICE                    
                       WASHINGTON : 2018      
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California
JON KYL, Arizona                     DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                 Gabrielle D'Adamo Singer, Chief Counsel
                    Satya P. Thallam, Chief Economist
                Margaret E. Daum, Minority Staff Director
        Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
   						   Calendar No. 738

115th Congress}                                            { Report
                                 SENATE
  2d Session  }                                            { 115-447
======================================================================.
 
 UNFUNDED MANDATES INFORMATION AND TRANSPARENCY ACT OF 2017

                                _______
                                

               December 19, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany H.R. 50]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which 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, 
reports favorably thereon with amendments and recommends that 
the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and the Need for Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................5
  V. Evaluation of Regulatory Impact..................................7
 VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Act, as Reported............12

                         I. Purpose and Summary

    H.R. 50, the Unfunded Mandates Information and Transparency 
Act of 2017, amends the Unfunded Mandates Reform Act of 1995 
(UMRA) to expand the scope and application of UMRA's analytical 
and procedural requirements to better and more completely 
account for costs imposed by Federal policies on state, local, 
tribal, and private sector entities.

              II. Background and the Need for Legislation


Growing Concern

    Except in rare instances, the division of authorities 
between the Federal Government on the one hand and non-Federal 
entities on the other has tended toward the former.\1\ One of 
the potential consequences of this accumulation of authority at 
the Federal level over subordinate authorities is the 
imposition of requirements to administer Federal policies 
without the necessary resources to do so, resulting in so-
called ``unfunded mandates.'' Whereas prior to the 1970s, 
Federal mandates were often structured through subsidization as 
a means to encourage participation (voluntary grant-in-aid 
funding), more recently Federal policymakers were 
``increasingly relying on `new, more intrusive, and more 
compulsory' programs and regulations'' which came to be known 
as unfunded mandates.\2\
---------------------------------------------------------------------------
    \1\See Robert Higgs, Crisis and Leviathan: Critical Episodes in the 
Growth of American Government (Oxford Univ. Press 1987).
    \2\Robert Jay Dilger, Cong. Research Serv., R40957, Unfunded 
Mandates Reform Act: History, Impact, and Issues (2018) (quoting U.S. 
Advisory Comm'n on Intergovernmental Relations, A-95, Regulatory 
Federalism: Policy, Process, Impact, and Reform (1984)), available at 
http://www.library.unt.edu/gpo/acir/Reports/policy/a-95.pdf.
---------------------------------------------------------------------------
    In the early 1980s, state and local advocates (and 
affiliated interest groups) began to highlight the growing 
problem of Federal unfunded mandates from both Federal 
regulation and Federal statutes. Then-mayor of New York City Ed 
Koch, in 1980, wrote an article noting:

          that as a Member of Congress [I] voted for many 
        [F]ederal mandates ``with every confidence that we were 
        enacting sensible permanent solutions to critical 
        problems'' but now . . . [have] come to realize that . 
        . . ``a maze of complex statutory and administrative 
        directives has come to threaten both the initiative and 
        the financial health of local governments throughout 
        the country.''\3\
---------------------------------------------------------------------------
    \3\Id. at 3 (citing Edward I. Koch, The Mandate Millstone, 37 Nat'l 
Affairs, 42, 44 (1980)).

Koch referred to this problem as the ``mandate millstone.'' In 
1993, the U.S. Advisory Commission on Intergovernmental 
Relations (ACIR) issued a report that identified 63 statutes as 
sources of significant costs.\4\ The National Performance 
Review, an initiative of the Clinton Administration, 
``identified 172 laws that imposed requirements . . . on state 
and local governments.''\5\ Between 1983 and 1990, ACIR 
estimated, new Federal mandates cost on the order of between 
$8.9 billion and $12.7 billion.\6\
---------------------------------------------------------------------------
    \4\U.S. Advisory Comm'n on Intergovernmental Relations, A-126, 
Federal Regulation of State and Local Governments: The Mixed Record of 
the 1980s (1993), available at http://www.library.unt.edu/gpo/acir/
Reports/policy/a-126.pdf.
    \5\Office of the Vice President, Department of Defense National 
Performance Review Accompanying Report (1993), available at https://
babel.hathitrust.org/cgi/pt?id=umn.31951d003716495;view=1up;seq=3.
    \6\Timothy J. Conlan & David R. Beam, Federal Mandates: The Record 
of Reform and Future Prospects, 18 Intergovernmental Perspective 4, 9-
10 (1992).
---------------------------------------------------------------------------
    These same critics of the growing Federal unfunded mandate 
burden, now armed with an increasing body of evidence of the 
problem, began advocating for a statutory solution and doing so 
in an increasingly public way. On October 27, 1993, a coalition 
of state and local interests organized ``National Unfunded 
Mandates Day'' with participation of ``[o]ver 300 cities and 
128 counties.''\7\
---------------------------------------------------------------------------
    \7\Timothy J. Conlan, James D. Riggle, & Donna E. Schwartz, 
Deregulating Federalism? The Politics of Mandate Reform in the 104th 
Congress, 25 Publius: The J. of Federalism 3, 26 (1995).
---------------------------------------------------------------------------

The Unfunded Mandates Reform Act

    Eventually this public and direct lobbying effort 
culminated in S. 1, the Unfunded Mandates Reform Act of 1995 
(UMRA). Introduced on January 4, 1995, by Senators Dirk 
Kempthorne and John Glenn, UMRA was simultaneously reported out 
of the Senate Governmental Affairs and Senate Budget Committees 
just five days later (without committee report) by a combined 
vote of 30-4.\8\ That same week, the House Government Reform 
and Oversight Committee reported H.R. 5, the House-companion, 
by voice vote and without hearings.\9\ President Clinton signed 
UMRA into law on March 22, 1995.\10\ UMRA had eight stated 
purposes:
---------------------------------------------------------------------------
    \8\141 Cong. Rec. 1, 891, 898 (1995) (Statement of the Chairman on 
the Reporting By the Governmental Affairs Committee of S. 1, Unfunded 
Mandates Reform Act of 1995); and 141 Cong. Rec. 1, 1092, 1099 (1995) 
(Statement of the Senate Committee on the Budget on S. 1, Unfunded 
Mandate Reform Act of 1995).
    \9\H.R. Rep. No. 104-1, pt. 2, 53-56 (1995).
    \10\Unfunded Mandates Reform Act of 1995, 5 U.S.C. Sec. Sec. 3109 
(1995).
---------------------------------------------------------------------------
          (1) to strengthen the partnership between the Federal 
        Government and State, local, and tribal governments;
          (2) to end the imposition, in the absence of full 
        consideration by Congress, of Federal mandates on 
        State, local, and tribal governments without adequate 
        Federal funding, in a manner that may displace other 
        essential State, local, and tribal governmental 
        priorities;
          (3) to assist Congress in its consideration of 
        proposed legislation establishing or revising Federal 
        programs containing Federal mandates affecting State, 
        local, and tribal governments, and the private sector 
        by (A) providing for the development of information 
        about the nature and size of mandates in proposed 
        legislation; and (B) establishing a mechanism to bring 
        such information to the attention of the Senate and the 
        House of Representatives before the Senate and the 
        House of Representatives vote on proposed legislation;
          (4) to promote informed and deliberate decisions by 
        Congress on the appropriateness of Federal mandates in 
        any particular instance;
          (5) to require that Congress consider whether to 
        provide funding to assist State, local, and tribal 
        governments in complying with Federal mandates, to 
        require analyses of the impact of private sector 
        mandates, and through the dissemination of that 
        information provide informed and deliberate decisions 
        by Congress and Federal agencies and retain competitive 
        balance between the public and private sectors;
          (6) to establish a point-of-order vote on the 
        consideration in the Senate and House of 
        Representatives of legislation containing significant 
        Federal intergovernmental mandates without providing 
        adequate funding to comply with such mandates;
          (7) to assist Federal agencies in their consideration 
        of proposed regulations affecting State, local, and 
        tribal governments, by (A) requiring that Federal 
        agencies develop a process to enable the elected and 
        other officials of State, local, and tribal governments 
        to provide input when Federal agencies are developing 
        regulations; and (B) requiring that Federal agencies 
        prepare and consider estimates of the budgetary impact 
        of regulations containing Federal mandatesupon State, 
local, and tribal governments and the private sector before adopting 
such regulations, and ensuring that small governments are given special 
consideration in that process; and
          (8) to begin consideration of the effect of 
        previously imposed Federal mandates, including the 
        impact on State, local, and tribal governments of 
        Federal court interpretations of Federal statutes and 
        regulations that impose Federal intergovernmental 
        mandates.\11\
---------------------------------------------------------------------------
    \11\2 U.S.C. Sec. 1501 (1995).
---------------------------------------------------------------------------
    UMRA aimed to accomplish these purposes by establishing 
procedural requirements prompting analysis and consideration of 
impacts of pending Federal policy on state, local, and private 
sector entities. Within Congress, UMRA requires the 
Congressional Budget Office (CBO) to estimate direct costs of 
legislation reported by a committee, when exceeding $50 million 
and $100 million (adjusted for inflation) of intergovernmental 
mandate and private sector mandate costs, respectively. For 
proposed or final regulations, agencies must similarly consider 
``the effects on state and local governments and the private 
sector . . . and to prepare a written statement of estimated 
costs and benefits for any mandate requiring an expenditure 
exceeding $100 million in any given year.''\12\
---------------------------------------------------------------------------
    \12\Dilger, supra note 2.
---------------------------------------------------------------------------

The Unfunded Mandates Information and Transparency Act

    From the earliest days of the debate on unfunded mandates, 
much of the discussion centered on how to define the 
appropriate scope of the term.\13\ ``[A] general consensus'' 
exists that where Federal policies ``impose unavoidable costs,
in the absence of sufficient compensatory funding,'' these 
fit squarely within the definition of an unfunded mandate. 
Where there is less of a consensus, and where UMRA's 
requirements do not apply, are conditions of grants-in-aid 
because strictly speaking the grant itself is considered 
voluntary. However, some scholars have made the case that 
changes in conditions of grants-in-aid can, and have, for 
administration of programs that initially entailed ``major 
commitments of state resources,'' these are effectively 
unavoidable.\14\ By referencing ``enforceable duty'' in its 
definitions, UMRA's scope is understood to exclude grant 
conditions.\15\
---------------------------------------------------------------------------
    \13\U.S. Gov't Accountability Office, GAO-05-454, Unfunded 
Mandates: Views Vary About Reform Act's Strengths, Weaknesses, and 
Options for Improvement (2005), available at https://www.gao.gov/
new.items/d05454.pdf.
    \14\Paul L. Posner, The Politics of Unfunded Mandates: Whither 
Federalism? 12-13 (Georgetown University Press, 1998).
    \15\2 U.S.C. Sec. 658(7)(A) and 2 U.S.C. Sec. 658(7)(B).
---------------------------------------------------------------------------
    The Unfunded Mandates Information and Transparency Act of 
2017 (UMITA) is an attempt to address this, and other 
deficiencies raised by stakeholders, in the more than twenty-
year-old Act.\16\ In addition to expanding the definition of 
unfunded mandate to include changes in conditions of grants-in-
aid, UMITA also: provides a more fulsome criteria for agencies 
to employ in considering the effects of proposed rules, based 
on longstanding principles in Executive Order 12866; applies to 
independent agencies (but omits the Board of Governors of the 
Federal Reserve System, the Federal Open Market Committee, and 
the Consumer Finance Protection Board) whereas they were 
previously exempted; expands the definition of ``direct costs'' 
to include economic effects such as foregone profits; allows a 
chair or ranking minority member of a committee to request an 
agency conduct a retrospective analysis of an extant 
regulation; allow judicial review of agency compliance with the 
Act's requirements; and extends the ``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.''\17\ In 
addition, UMITA transfers responsibility for agency 
coordination and compliance with the Act's requirements from 
the Director of the Office of Management and Budget to the 
Administrator of the Office of Information and Regulatory 
Affairs, and reauthorizes funding for CBO's responsibilities 
under UMRA through 2023.
---------------------------------------------------------------------------
    \16\See generally U.S. Cong., House Comm. on Oversight and Gov't 
Reform, Unfunded Mandates Information and Transparency Act of 2017, 
report to accompany H.R. 50, 115th Cong., 2nd sess., June 29, 2018, H. 
Rept. 115-798, pt. 1, 2-6 (2018).
    \17\Id. at 16.
---------------------------------------------------------------------------

                        III. Legislative History

    Representative Virginia Foxx (R-NC) introduced H.R. 50, 
with Representative Cuellar (D-TX) on January 3, 2017. The bill 
passed the House on July 13, 2018, by recorded vote of 230-168.
    On July 16, 2018, the Act was referred to the Committee on 
Homeland Security and Governmental Affairs. The Committee 
considered H.R. 50 at a business meeting on September 26, 2018. 
At the business meeting, Senator Michael Enzi (R-WY) offered an 
amendment which was adopted by voice vote with Johnson, 
Portman, Lankford, Enzi, Hoeven, McCaskill, Carper, Heitkamp, 
Peters, Hassan, Harris, and Jones present.
    The Committee ordered H.R. 50, as amended, reported 
favorably on September 26, 2018, by roll call vote of 8 yeas to 
6 nays. Senators voting in the affirmative were Johnson, 
Portman, Paul, Lankford, Enzi, Hoeven, Daines, and Heitkamp. 
For the record only, Senator Kyl voted yea by proxy. Senators 
voting in the negative were McCaskill, Carper, Peters, Hassan, 
Harris, and Jones.

        IV. Section-by-Section Analysis of the Act, as Reported


Section 1. Short title

    This section designates the short title of the Act as the 
``Unfunded Mandates Information and Transparency Act of 2018.''

Sec. 2. Purposes

    This section states that the purpose of the Act is to 
promote higher quality debates on Federal mandates and enhance 
the increase Congress and the public's ability to identify 
Federal Mandates that impose undue harm.

Sec. 3. Providing for Congressional Budget Office studies on policies 
        involving changes in conditions of grant aid

    This section amends the Congressional Budget Act of 1974. 
The amendment authorizes any chairman or ranking member of a 
Senate or House committee to request that the CBO conduct a 
study comparing authorized level of funding in a bill to the 
estimated costs of carrying out any changes to a condition of 
Federal assistance being imposed on a governmental entity 
participating in the Federal assistance program or a study on 
the estimate level of funding compared to costs.

Sec. 4. Clarifying the definition of direct costs to reflect 
        Congressional Budget Office practice

    This section amends section 421(3) of the Congressional 
Budget Act of 1974 by expanding the definition of direct costs 
to include foregone profits, costs to consumers, and other 
behavioral changes.

Sec. 5. Expanding the scope of reporting requirements to include 
        regulations imposed by independent regulatory agencies

    This section amends 421(1) of the Congressional Budget Act 
of 1974. The amendment expands the reporting requirements by 
including all independent regulatory agencies except for the 
Board of Governors of the Federal Reserve, the Federal Open 
Market Committee, and the Bureau of Consumer Financial 
Protection.

Sec. 6. Amendments to replace Office of Management and Budget with 
        Office of Information and Regulatory Affairs

    This section amends the Unfunded Mandates Reform Act of 
1995. This amendment replaces references to the Office of 
Management and Budget with Office of Information and Regulatory 
Affairs (OIRA).

Sec. 7. Applying substantive point of order to private sector mandates

    This section amends section 421(a)(1) of the Congressional 
Budget Act of 1974 by expanding the scope of the existing point 
of order to include private sector effects.

Sec. 8. Regulatory process and principles

    This section amends section 201 of the UMRA. New subsection 
(a) requires each agency to assess the effects of Federal 
regulation on government entities and the private sector. The 
subsection requires the assessment to identify the problems the 
regulation intends to address; determine whether existing 
regulations have contributed to the problem that the new 
regulation intends to address; encourages agencies to create 
regulations that are the most cost effective; determine the 
cost and benefits of the regulation; ensure the regulations are 
easy to understand; and base each decision on the best 
scientific methods. New subsection (b) defines ``regulatory 
action.''

Sec. 9. Expanding the scope of statements to accompany significant 
        regulatory actions

    This section amends section 202(a) of the UMRA. New 
subsection (a) requires agencies to prepare a written statement 
that must follow before promulgating any general notice of 
proposed or final rule making and list requirements for the 
written statement. The written statement must include the text 
of the rule and an explanation of the need for the rule; a 
prediction of the costs and benefits of the rule; a qualitative 
and quantitative analysis of the expected benefits and costs of 
the rule; estimates of future compliance costs; and summaries 
of private sector concerns and the agencies evaluation of those 
concerns. Subsection (b) amends section 202(b) of the UMRA by 
inserting ``detailed'' before ``summary''.

Sec. 10. Enhanced stakeholder consultation

    This section amends section 204 of the UMRA. New subsection 
(c) creates guidelines for agencies to follow when implementing 
subsection (a) and (b). Agencies must consult with stakeholders 
as early as possible before the issuing a notice of proposed 
rule and continue through the final rule stage; agencies must 
consult with a wide variety of government agencies and private 
actors while considering issues that may differentiate varying 
points of view; and agencies should have the scope of theses 
consultations reflect the estimate of costs and benefits with 
the consultations.
    Any consultation with a non-Federal party involving a 
significant Federal mandate must be posted on the agency 
website within five days of the consultation and any non-
Federal party comments must be posted with five days of 
submission. Agencies must seek out the views of government 
entities and private stakeholders and solicit ides about 
alternative approaches to the regulation.

Sec. 11. New authorities and responsibilities for Office of Information 
        and Regulatory Affairs

    This section amends section 208 of the UMRA. New subsection 
(a) describes the general duties of the Administrator of OIRA.
    New subsection (b) requires the Administrator of OIRA to 
annually submit a report to Congress and the appropriate 
congressional committees. The report must describe how each 
agency is complying with requirements of this Act.

Sec. 12. Retrospective analysis of existing federal regulations

    This section requires agencies to conduct a retrospective 
analysis of one of its existing regulations at the request of a 
Chairman or Ranking Minority Member.

Sec. 13. Expansion of judicial review

    This section allows for judicial review of an agency's 
compliance with UMRA's regulatory analysis principles.

Sec. 14. Reauthorization

    This section reauthorizes funding for the CBO's analytical 
responsibilities under UMRA.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 13, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, 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,
                                                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 legislation would 
codify many current practices of federal agencies as they 
analyze the potential effects of proposed regulations. The act 
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 act 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.
---------------------------------------------------------------------------
    \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 act would have a net discretionary 
cost of $7 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 H.R. 50 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 required 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--
                                                                   ---------------------------------------------
                                                                     2019   2020   2021   2022   2023  2019-2023
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATIONa
 
Estimated Authorization Level.....................................      1      1      1      2      2          7
Estimated Outlays.................................................      1      1      1      2      2          7
----------------------------------------------------------------------------------------------------------------
aIn addition, CBO estimates that implementing the act 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 act's
  new costs by collecting additional fees.

    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 spending 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 act would have a net discretionary 
cost of $7 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 act'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. The act also would require 
agencies to post records of consultations conducted with 
nonfederal entities, as well as comments submitted by those 
entities, on a public website within five days.\2\
---------------------------------------------------------------------------
    \2\Under current law, most federal agencies post this information 
to the federal website www.regulations.gov, which houses a publicly 
accessible docket with documents and other information for each 
regulation promulgated by a federal agency. However, most agencies 
generally do not post such information online within five days, as 
would be required by H.R. 50. CBO estimates that doing so would require 
additional resources.
---------------------------------------------------------------------------
    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 that they review each year. CBO estimates that each 
agency would require, on average, one to three additional 
employees to comply with the act'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 new 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 fouragencies would incur gross costs of about $17 
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 $6 million over the five-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 a 
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 costs would increase. CBO estimates that those costs 
in any year, and over the next five years, would be below 
$500,000, and any such spending 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 each of the 
affected agencies, including the FDIC and the OCC, would incur 
additional annual costs of $1 million, on average, to fulfill 
the act'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 act 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 H.R. 50 
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 act would expand the scope 
of analyses that independent agencies are required to conduct 
when they issue regulations, which would increase their 
workload and annual operating costs. Some independent agencies 
are authorized to collect fees sufficient to offset the costs 
of their regulatory activities. Because we expect those 
agencies to raise fees to offset the costs of their additional 
workload, 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 additional fees would range from $2 million 
to $8 million per year over the 2019-2023 period and would 
therefore 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).
    Previous CBO estimate: On May 23, 2018, CBO transmitted a 
cost estimate for H.R. 50, the Unfunded Mandates Information 
and Transparency Act of 2017, as ordered reported by the House 
Committee on Oversight and Government Reform on March 15, 2018. 
The two versions of the legislation are similar; however, the 
Senate version would require the affected agencies to post 
records of consultations conducted with nonfederal entities, as 
well as comments submitted by those entities, on a public 
website within five days. The House version did not contain 
this requirement. Because meeting this deadline would require 
agencies to spend additional amounts, CBO's estimated cost of 
this version of the legislation is greater than the House 
version by about $1 million over the 2019-2023 period.
    In the House version of H.R. 50, CBO stated that the 
increased cost of existing mandates on public and private-
sector entities would be less than $500,000 per year. The 
correct estimate of those costs, which is included here and 
ranges from $2 million to $8 million per year over the 2019-
2023 period, applies to both versions of the bill.
    Estimate prepared by: Federal costs: Jon Sperl; Mandates: 
Jon Sperl.
    Estimate reviewed by: Kim P. Cawley, Chief, Natural and 
Physical Resources Cost Estimates 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.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 2--THE CONGRESS

           *       *       *       *       *       *       *



CHAPTER 17--CONGRESSIONAL BUDGET OFFICE

           *       *       *       *       *       *       *



SEC. 602. DUTIES AND FUNCTIONS.

    (a) * * *

           *       *       *       *       *       *       *

    (g) * * *
          (1) * * *
          (2) * * *
          (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, to the extent 
        practicable, 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.

           *       *       *       *       *       *       *


CHAPTER 17A--CONGRESSIONAL BUDGET AND FISCAL OPERATIONS

           *       *       *       *       *       *       *



Subchapter II--Fiscal Procedures

           *       *       *       *       *       *       *



                        Part B--Federal Mandates


SEC. 658. DEFINITIONS.

          (1) Agency.--The term ``agency'' has the same meaning 
        as defined in section 551(1) of title 5[, 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 Bureau of Consumer Financial Protection.
          (2) * * *
          (3) * * *
                  (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) * * *
                  (B) in the case of a Federal private sector 
                mandate, means the aggregate estimated amounts 
                that the private sector will be required to 
                spend or could forgo in profits, including 
                costs passed on to consumers or other entities 
                taking into account, to the extent practicable, 
                behavioral changes, in order to comply with the 
                Federal private sector mandate;

           *       *       *       *       *       *       *


SEC. 658D. LEGISLATION SUBJECT TO POINT OF ORDER.

    (a) * * *
          (1) * * *
          (2) any bill, joint resolution, amendment, motion, or 
        conference report that would increase the direct costs 
        of [Federal intergovernmental mandates] Federal 
        mandates by an amount that causes the thresholds 
        specified in section 658c(a)(1) or 658c(b)(1) of this 
        title to be exceeded, unless--

           *       *       *       *       *       *       *


CHAPTER 25--UNFUNDED MANDATES REFORM

           *       *       *       *       *       *       *



          Subchapter I--Legislative Accountability and Reform


SEC. 1511. COST OF REGULATIONS.

    (a) * * *
    (b) * * *
    (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 [2 
U.S.C. 658 et seq.].

           *       *       *       *       *       *       *


          Subchapter II--Legislative Accountability and Reform


SEC. 1531. [REGULATORY PROCESS] REGULATORY PROCESS AND PRINCIPLES.

    [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).]
    (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 the 
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. 1532. 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 1534 of this title) 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 6 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 the 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 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 United States 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 principals 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.

SEC. 1533. * * *

SEC. 1534. STATE, LOCAL, AND TRIBAL 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) * * *
    [(c) Implementing Guidelines.--No later than 6 months after 
March 22, 1995, 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 final rule stage, and be 
        integrated explicitly into the rulemaking process.
          (2) Agencies shall consult with a wide variety of 
        State, local, and tribal officials and impacted parties 
        within the private sector (including small businesses). 
        Geographic, political, and other factors that may 
        differentiate varying points of view should be 
        considered.
          (3) Agencies should estimate benefits and costs to 
        assist with these consultations. The scope of the 
        consultation should reflect the cost and significance 
        of the Federal mandate being considered.
          (4) A record of any consultation with any non-Federal 
        party during the development of regulatory proposals 
        containing a significant Federal mandate shall be 
        posted on the website of the agency within five days 
        after the consultation. Any comments submitted by a 
        non-Federal party shall be posted on the website of the 
        agency within five days after the date of submission to 
        the agency.
          (5) Agencies shall, to the extent practicable--
                  (A) seek out the views of State, local, and 
                tribal governments, and impacted parties within 
                the private sector (including small business), 
                on costs, benefits, and risks; and
                  (B) solicit ideas about alternatives methods 
                of compliance and potential flexibilities, and 
                input on whether the Federal regulation will 
                harmonize with and not duplicate similar laws 
                in other levels of government.
          (6) Consultations shall address the cumulative impact 
        of regulations on the affected entities.
          (7) Agencies may accept electronic submissions of 
        comments by relevant parties but may not use those 
        comments as the sole method of satisfying the 
        guidelines in this subsection.

SEC. 1535. LEAST BURDENSOME OPTION OR EXPLANATION REQUIRED.

    (a) * * *
    (b) * * *
    (c) [OMB] Certification.--No later than 1 year after March 
22, 1995, 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. 1536. 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 1532 of this title; 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. 1537. * * *

SEC. 1538. [ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLIANCE.] OFFICE 
                    OF INFORMATION AND REGULATORY AFFAIRS 
                    RESPONSIBIITIES.

    [No later than 1 year after March 22, 1995, 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 subchapter.]
    (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 Administrator 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.

UNFUNDED MANDATES REFORM ACT OF 1995

           *       *       *       *       *       *       *


             TITLE I--LEGISLATIVE ACCOUNTABILITY AND REFORM


SEC. 101 * * *

SEC. 102 * * *

SEC. 103. COSTS OF REGULATION.

    (a) * * *
    (b) * * *
    (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.

           *       *       *       *       *       *       *


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.]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]REGULATORY PROCESS AND PRINCIPLES.

    [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).]
    (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 this title) 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 6 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 United States 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.

SEC. 203. * * *

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) * * *
    (c) [Implementing Guidelines] Guidelines.--
    [No later than 6 months after March 22, 1995, the President 
shall issue guidelines and instructions to Federal agencies for 
appropriate implementation of subsections (a) and (b) 
consistent with applicable laws and regulations.]
    For appropriate implementation of subsections (a) and (b) 
consistent with applicable laws and regulations, the following 
guidelines shall be followed:
          (1) Consultations shall take place as early as 
        possible, before issuance of a notice of proposed 
        rulemaking, continue through the final rule stage, and 
        be integrated explicitly into the rulemaking process.
          (2) Agencies shall consult with a wide variety of 
        State, local, and tribal officials and impacted parties 
        within the private sector (including small businesses). 
        Geographic, political, and other factors that may 
        differentiate varying points of view should be 
        considered.
          (3) Agencies should estimate benefits and costs to 
        assist with these consultations. The scope of the 
        consultation should reflect the cost and significance 
        of the Federal mandate being considered.
          (4) A record of any consultation with any non-Federal 
        party during the development of regulatory proposals 
        containing a significant Federal mandate shall be 
        posted on the website of the agency within five days 
        after the consultation. Any comments submitted by a 
        non-Federal party shall be posted on the website of the 
        agency within five days after the date of submission to 
        the agency.
          (5) Agencies shall, to the extent practicable--
                  (A) seek out the views of State, local, and 
                tribal governments, and impacted parties within 
                the private sector (including small business), 
                on costs, benefits, and risks; and
                  (B) solicit ideas about alternative methods 
                of compliance and potential flexibilities, and 
                input on whether the Federal regulation will 
                harmonize with and not duplicate similar laws 
                in other levels of government.
          (6) Consultations shall address the cumulative impact 
        of regulations on the affected entities.
          (7) Agencies may accept electronic submissions of 
        comments by relevant parties but may not use those 
        comments as the sole method of satisfying the 
        guidelines in this subsection.

SEC. 205. LEAST BURDENSOME OPTION OR EXPLANATION REQUIRED.

    (a) * * *
    (b) * * *
    (c) [OMB] Certification.--No later than 1 year after March 
22, 1995, 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. * * *

SEC. 207. * * *

SEC. 208. [ASSISTANCE TO THE CONGRESSIONAL BUDGET OFFICE] OFFICE OF 
                    INFORMATION AND REGULATORY AFFAIRS 
                    RESPONSIBILITIES.

    [No later than 1 year after March 22, 1995, 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 subchapter.]
    (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 Administrator 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. 208. * * *

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 
restrospective 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 of the United States 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

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                       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) 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 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 (20, 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 action may be used 
        as a basis for staying, enjoining, invalidating or 
        otherwise affecting such agency rule.

           *       *       *       *       *       *       *


SEC. 425. LEGISLATION SUBJECT TO POINT OF ORDER.

    (a) In General.--
          (1) * * *
          (2) any bill, joint resolution, amendment, motion, or 
        conference report that would increase the direct costs 
        of [Federal intergovernmental mandates] Federal 
        mandates by an amount that causes the thresholds 
        specified in section 424(a)(1) or 424(b)(1) of this 
        title to be exceeded, unless--

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