Unfunded Mandates Accountability and Transparency Act

II 117TH CONGRESS 1ST SESSION S. 170 To amend the Unfunded Mandates Reform Act of 1995 to provide for regulatory impact analyses for certain rules, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 2, 2021 Mr. PORTMAN (for himself, Mr. LANKFORD, Mrs. FISCHER, and Mr. SCOTT of Florida) introduced the following bill; which was read twice and re- ferred to the Committee on Homeland Security and Governmental Affairs A BILL To amend the Unfunded Mandates Reform Act of 1995 to provide for regulatory impact analyses for certain rules, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Unfunded Mandates 4 Accountability and Transparency Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 (1) The public has a right to know the benefits 8 and costs of regulation. Effective regulatory pro- 9 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 170 IS grams provide important benefits to the public, in- 1 cluding protecting the environment, worker safety, 2 and human health. Regulations also impose signifi- 3 cant costs on individuals, employers, and State, 4 local, and Tribal governments, diverting resources 5 from other important priorities. 6 (2) Better regulatory analysis and review 7 should improve the quality of agency decisions, in- 8 creasing the benefits and reducing unwarranted 9 costs of regulation. 10 (3) Disclosure and scrutiny of key information 11 underlying agency decisions should make the Fed- 12 eral Government more accountable to the public it 13 serves. 14 SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN 15 RULES. 16 The Unfunded Mandates Reform Act of 1995 (2 17 U.S.C. 1501 et seq.) is amended— 18 (1) by striking ‘‘tribal’’ each place that term 19 appears and inserting ‘‘Tribal’’; 20 (2) in section 3 (2 U.S.C. 1502)— 21 (A) in paragraph (1), by striking ‘‘and’’ at 22 the end; 23 (B) in paragraph (2), by striking the pe- 24 riod at the end and inserting ‘‘and’’; and 25 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 170 IS (C) by adding at the end the following: 1 ‘‘(3) the term ‘major rule’ means a rule, as de- 2 fined in section 551 of title 5, United States Code, 3 that the Administrator of the Office of Information 4 and Regulatory Affairs determines is likely to 5 cause— 6 ‘‘(A) an annual effect on the economy of 7 $100,000,000 or more, adjusted once every 5 8 years to reflect increases in the Consumer Price 9 Index for All Urban Consumers, as published 10 by the Bureau of Labor Statistics of the De- 11 partment of Labor; 12 ‘‘(B) a major increase in costs or prices for 13 consumers, individual industries, Federal, 14 State, local, or Tribal government agencies, or 15 geographic regions; or 16 ‘‘(C) significant adverse effects on competi- 17 tion, employment, investment, productivity, in- 18 novation, public health and safety, or the ability 19 of United States-based enterprises to compete 20 with foreign-based enterprises in domestic and 21 export markets.’’; and 22 (3) in section 202 (2 U.S.C. 1532)— 23 (A) by striking the section heading and in- 24 serting the following: 25 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 170 IS ‘‘SEC. 202. REGULATORY IMPACT ANALYSES FOR CERTAIN 1 RULES.’’; 2 (B) by redesignating subsections (b) and 3 (c) as subsections (d) and (e), respectively; 4 (C) by striking subsection (a) and insert- 5 ing the following: 6 ‘‘(a) DEFINITION OF COST.—In this section, the term 7 ‘cost’ means the cost of compliance and any reasonably 8 foreseeable indirect costs, including revenues lost, as a re- 9 sult of a major rule of an agency that is subject to this 10 section. 11 ‘‘(b) REGULATORY IMPACT ANALYSES.— 12 ‘‘(1) REQUIREMENT.—Before promulgating any 13 proposed or final major rule, the agency promul- 14 gating the major rule shall prepare and publish in 15 the Federal Register an initial and final regulatory 16 impact analysis with respect to the major rule. 17 ‘‘(2) INITIAL REGULATORY IMPACT ANALYSIS.— 18 An initial regulatory impact analysis required under 19 paragraph (1) shall— 20 ‘‘(A) accompany the notice of proposed 21 rulemaking with respect to the major rule that 22 is the subject of the analysis; and 23 ‘‘(B) be open to public comment. 24 ‘‘(3) FINAL REGULATORY IMPACT ANALYSIS.— 25 A final regulatory impact analysis required under 26 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 170 IS paragraph (1) shall accompany the final major rule 1 that is the subject of the analysis. 2 ‘‘(c) CONTENT.—Each initial and final regulatory im- 3 pact analysis prepared and published under subsection (b) 4 shall include, with respect to the major rule that is the 5 subject of the analysis— 6 ‘‘(1)(A) an analysis of the anticipated benefits 7 and costs of the major rule, which shall be quan- 8 tified to the extent feasible; 9 ‘‘(B) an analysis of the benefits and costs of a 10 reasonable number of regulatory alternatives within 11 the range of the discretion of the agency under the 12 statute authorizing the major rule, including alter- 13 natives that— 14 ‘‘(i) require no action by the Federal Gov- 15 ernment; and 16 ‘‘(ii)(I) use incentives and market-based 17 means to encourage the desired behavior; 18 ‘‘(II) provide information based upon 19 which the public can make choices; or 20 ‘‘(III) employ other flexible regulatory op- 21 tions that permit the greatest flexibility in 22 achieving the objectives of the statute author- 23 izing the major rule; and 24 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 170 IS ‘‘(C) an explanation of how the major rule com- 1 plies with the requirements of section 205; 2 ‘‘(2) an assessment of the extent to which— 3 ‘‘(A) the costs to State, local, and Tribal 4 governments may be paid with Federal financial 5 assistance (or otherwise paid for by the Federal 6 Government); and 7 ‘‘(B) Federal resources are available to 8 carry out the major rule; 9 ‘‘(3) estimates of— 10 ‘‘(A) any disproportionate budgetary ef- 11 fects of the major rule upon any particular— 12 ‘‘(i) regions of the United States; 13 ‘‘(ii) State, local, or Tribal govern- 14 ments; 15 ‘‘(iii) types of communities, including 16 urban or rural communities; or 17 ‘‘(iv) segments of the private sector; 18 and 19 ‘‘(B) the effect of the major rule on job 20 creation or job loss, which shall be quantified to 21 the extent feasible; and 22 ‘‘(4)(A) a description of the extent of the prior 23 consultation of the agency under section 204 with 24 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 170 IS elected representatives of each affected State, local, 1 or Tribal government; 2 ‘‘(B) a summary of the comments and concerns 3 that were presented to the agency orally or in writ- 4 ing by State, local, or Tribal governments; and 5 ‘‘(C) a summary of the evaluation by the agen- 6 cy of the comments and concerns described in sub- 7 paragraph (B).’’; 8 (D) in subsection (d), as so redesignated, 9 by striking ‘‘a statement under subsection (a) is 10 required, the agency shall include in the pro- 11 mulgation a summary of the information con- 12 tained in the statement’’ and inserting ‘‘an 13 analysis under subsection (b) is required, the 14 agency promulgating the major rule shall in- 15 clude in the promulgation a summary of the in- 16 formation contained in the analysis’’; and 17 (E) in subsection (e), as so redesignated, 18 by striking ‘‘any statement required under sub- 19 section (a) in conjunction with or as a part of 20 any other statement or analysis, provided that 21 the statement or analysis satisfies the provi- 22 sions of subsection (a)’’ and inserting ‘‘any 23 analysis required under subsection (b) in con- 24 junction with, or as a part of, any other state- 25 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 170 IS ment or analysis if the other statement or anal- 1 ysis satisfies the requirements of subsections 2 (b) and (c)’’. 3 SEC. 4. ENHANCED STAKEHOLDER CONSULTATION. 4 Section 204 of the Unfunded Mandates Reform Act 5 of 1995 (2 U.S.C. 1534) is amended— 6 (1) in the section heading, by inserting ‘‘AND 7 PRIVATE SECTOR’’ before ‘‘INPUT’’; 8 (2) in subsection (a)— 9 (A) by inserting ‘‘, and impacted parties 10 within the private sector (including small busi- 11 nesses),’’ after ‘‘on their behalf)’’; and 12 (B) by striking ‘‘Federal intergovernmental 13 mandates’’ and inserting ‘‘Federal mandates’’; 14 and 15 (3) by amending subsection (c) to read as fol- 16 lows: 17 ‘‘(c) GUIDELINES.—For appropriate implementation 18 of subsections (a) and (b) consistent with applicable laws 19 and regulations, the following guidelines shall be followed: 20 ‘‘(1) Consultations shall take place as early as 21 possible, before issuance of a notice of proposed rule- 22 making, continue through the final rule stage, and 23 be integrated explicitly into the rulemaking process. 24 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 170 IS ‘‘(2) Agencies shall consult with a wide variety 1 of State, local, and Tribal officials and impacted 2 parties within the private sector (including small 3 businesses). Geographic, political, and other factors 4 that may differentiate varying points of view should 5 be considered. 6 ‘‘(3) Agencies should estimate benefits and 7 costs to assist with these consultations. The scope of 8 the consultation should reflect the cost and signifi- 9 cance of the Federal mandate being considered. 10 ‘‘(4) Agencies shall, to the extent practicable— 11 ‘‘(A) seek out the views of State, local, and 12 Tribal governments, and impacted parties with- 13 in the private sector (including small busi- 14 nesses), on costs, benefits, and risks; and 15 ‘‘(B) solicit ideas about alternative meth- 16 ods of compliance and potential flexibilities, and 17 input on whether the Federal regulation will 18 harmonize with and not duplicate similar laws 19 in other levels of government. 20 ‘‘(5) Consultations shall address the cumulative 21 impact of regulations on the affected entities. 22 ‘‘(6) Agencies may accept electronic submis- 23 sions of comments by relevant parties but may not 24 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 170 IS use those comments as the sole method of satisfying 1 the guidelines in this subsection.’’. 2 SEC. 5. MAXIMIZE NET BENEFITS OR PROVIDE EXPLA- 3 NATION. 4 Title II of the Unfunded Mandates Reform Act of 5 1995 (2 U.S.C. 1531 et seq.) is amended by striking sec- 6 tion 205 (2 U.S.C. 1535) and inserting the following: 7 ‘‘SEC. 205. MAXIMIZE NET BENEFITS. 8 ‘‘(a) DEFINITION OF COST.—In this section, the term 9 ‘cost’ has the meaning given the term in section 202(a). 10 ‘‘(b) REQUIREMENT.—Before promulgating any pro- 11 posed or final major rule for which a regulatory impact 12 analysis is required under section 202, an agency shall 13 from the alternatives identified and considered under sec- 14 tion 202(c)(1)(B), select the alternative that maximizes 15 net benefits, taking into consideration only the costs and 16 benefits that arise within the scope of the statutory provi- 17 sion that authorizes the rulemaking. 18 ‘‘(c) EXCEPTIONS.—An agency may adopt an alter- 19 native other than as required under subsection (b) only 20 if— 21 ‘‘(1) the Administrator of the Office of Infor- 22 mation and Regulatory Affairs approves the adop- 23 tion by the agency of the alternative; and 24 ‘‘(2) the alternative is adopted to— 25 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 170 IS ‘‘(A) account for costs or benefits that can- 1 not be quantified, including costs or benefits re- 2 lated to constitutional or civil rights, provided 3 that the agency identifies all such costs and 4 benefits and explains why those costs and bene- 5 fits justify the adoption of the alternative; or 6 ‘‘(B) achieve additional benefits or cost re- 7 ductions, provided that the agency— 8 ‘‘(i) identifies— 9 ‘‘(I) all such additional benefits 10 and the associated costs of those ben- 11 efits; and 12 ‘‘(II) all such cost reductions and 13 the associated benefits of those cost 14 reductions; and 15 ‘‘(ii) explains why— 16 ‘‘(I) the additional benefits jus- 17 tify the additional costs; or 18 ‘‘(II) the additional cost reduc- 19 tions justify any benefits foregone.’’. 20 SEC. 6. NEW AUTHORITIES AND RESPONSIBILITIES FOR OF- 21 FICE OF INFORMATION AND REGULATORY 22 AFFAIRS. 23 Section 208 of the Unfunded Mandates Reform Act 24 of 1995 (2 U.S.C. 1538) is amended to read as follows: 25 VerDate Sep 11 2014 20:49 Feb 14, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S170.IS S170 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 170 IS ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF- 1 FAIRS RESPONSIBILITIES. 2 ‘‘(a) IN GENERAL.—The Administrator of the Office 3 of Information and Regulatory Affairs (in this section re- 4 ferred to as the ‘Administrator’) shall provide meaningful 5 guidance and oversight so that the major rules of an agen- 6 cy for which a regulatory impact analysis is required under 7 section 202— 8 ‘‘(1) are consistent with the principles and re- 9 quirements of this title, as well as other applicable 10 laws; and 11 ‘‘(2) and do not conflict with the policies or ac- 12 tions of another agency. 13 ‘‘(b) NOTIFICATION.—If the Administrator deter- 14 mines that the major rules of an agency for which a regu- 15 latory impact analysis is required under section 202 do 16 not comply with the principles and requirements of this 17 title, are not consistent with other applicable laws, or con- 18 flict with the policies or actions of another agency, the 19 Administrator shall— 20 ‘‘(1) identify areas of noncompliance; 21 ‘‘(2) notify the agency; and 22 ‘‘( [Text truncated for display. 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