Senate Report 115-447 - UNFUNDED MANDATES INFORMATION AND TRANSPARENCY ACT OF 2017

[Senate Report 115-447]
[From the U.S. Government Publishing Office]

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.

* * * * * * *

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.

SEC. 206. * * *

SEC. 207. * * *

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

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

* * * * * * *

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--

* * * * * * *

[all]