Unfunded Mandates Accountability Act

II 116TH CONGRESS 1ST SESSION S. 870 To amend the Unfunded Mandates Reform Act of 1995 to provide for regu- latory impact analyses for certain rules and consideration of the least burdensome regulatory alternative, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 26, 2019 Mr. PORTMAN introduced the following bill; which was read twice and referred 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 consideration of the least burdensome regu- latory alternative, 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 Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 2 •S 870 IS (1) The public has a right to know the benefits 1 and costs of regulation. Effective regulatory pro- 2 grams provide important benefits to the public, in- 3 cluding protecting the environment, worker safety, 4 and human health. Regulations also impose signifi- 5 cant costs on individuals, employers, and State, 6 local, and tribal governments, diverting resources 7 from other important priorities. 8 (2) Better regulatory analysis and review 9 should improve the quality of agency decisions, in- 10 creasing the benefits and reducing unwarranted 11 costs of regulation. 12 (3) Disclosure and scrutiny of key information 13 underlying agency decisions should make the Fed- 14 eral Government more accountable to the public it 15 serves. 16 SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN 17 RULES. 18 Section 202 of the Unfunded Mandates Reform Act 19 of 1995 (2 U.S.C. 1532) is amended— 20 (1) by striking the section heading and insert- 21 ing the following: 22 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 3 •S 870 IS ‘‘SEC. 202. REGULATORY IMPACT ANALYSES FOR CERTAIN 1 RULES.’’; 2 (2) by redesignating subsections (b) and (c) as 3 subsections (d) and (e), respectively; 4 (3) by striking subsection (a) and inserting the 5 following: 6 ‘‘(a) DEFINITION.—In this section, the term ‘cost’ 7 means the cost of compliance and any reasonably foresee- 8 able indirect costs, including revenues lost, as a result of 9 an agency rule subject to this section. 10 ‘‘(b) REGULATORY IMPACT ANALYSES.— 11 ‘‘(1) REQUIREMENT.—Before promulgating any 12 proposed or final rule that may have an annual ef- 13 fect on the economy of $100,000,000 or more (ad- 14 justed for inflation), or that may result in the ex- 15 penditure by State, local, and tribal governments, in 16 the aggregate, of $100,000,000 or more (adjusted 17 for inflation) in any 1 year, the agency promulgating 18 the rule shall prepare and publish in the Federal 19 Register an initial and final regulatory impact anal- 20 ysis with respect to the rule. 21 ‘‘(2) INITIAL REGULATORY IMPACT ANALYSIS.— 22 An initial regulatory impact analysis required under 23 paragraph (1) shall— 24 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 4 •S 870 IS ‘‘(A) accompany the notice of proposed 1 rulemaking with respect to the rule that is the 2 subject of the analysis; and 3 ‘‘(B) be open to public comment. 4 ‘‘(3) FINAL REGULATORY IMPACT ANALYSIS.— 5 A final regulatory impact analysis required under 6 paragraph (1) shall accompany the final rule that is 7 the subject of the analysis. 8 ‘‘(c) CONTENT.—Each initial and final regulatory im- 9 pact analysis prepared and published under subsection (b) 10 shall include, with respect to the rule that is the subject 11 of the analysis— 12 ‘‘(1)(A) an analysis of the anticipated benefits 13 and costs of the rule, which shall be quantified to 14 the extent feasible; 15 ‘‘(B) an analysis of the benefits and costs of a 16 reasonable number of regulatory alternatives within 17 the range of the discretion of the agency under the 18 statute authorizing the rule, including alternatives 19 that— 20 ‘‘(i) require no action by the Federal Gov- 21 ernment; and 22 ‘‘(ii)(I) use incentives and market-based 23 means to encourage the desired behavior; 24 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 5 •S 870 IS ‘‘(II) provide information based upon 1 which the public can make choices; or 2 ‘‘(III) employ other flexible regulatory op- 3 tions that permit the greatest flexibility in 4 achieving the objectives of the statute author- 5 izing the rule; and 6 ‘‘(C) an explanation of how the rule complies 7 with the requirements of section 205; 8 ‘‘(2) an assessment of the extent to which— 9 ‘‘(A) the costs to State, local, and tribal 10 governments may be paid with Federal financial 11 assistance (or otherwise paid for by the Federal 12 Government); and 13 ‘‘(B) Federal resources are available to 14 carry out the rule; 15 ‘‘(3) estimates of— 16 ‘‘(A) any disproportionate budgetary ef- 17 fects of the rule upon any particular— 18 ‘‘(i) regions of the United States; 19 ‘‘(ii) State, local, or tribal govern- 20 ments; 21 ‘‘(iii) types of communities, including 22 urban or rural communities; or 23 ‘‘(iv) segments of the private sector; 24 and 25 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 6 •S 870 IS ‘‘(B) the effect of the rule on job creation 1 or job loss, which shall be quantified to the ex- 2 tent feasible; and 3 ‘‘(4)(A) a description of the extent of the prior 4 consultation of the agency under section 204 with 5 elected representatives of each affected State, local, 6 or tribal government; 7 ‘‘(B) a summary of the comments and concerns 8 that were presented to the agency orally or in writ- 9 ing by State, local, or tribal governments; and 10 ‘‘(C) a summary of the evaluation by the agen- 11 cy of the comments and concerns described in sub- 12 paragraph (B).’’; 13 (4) in subsection (d), as so redesignated, by 14 striking ‘‘a statement under subsection (a) is re- 15 quired, the agency shall include in the promulgation 16 a summary of the information contained in the 17 statement’’ and inserting ‘‘an analysis under sub- 18 section (b) is required, the agency promulgating the 19 rule shall include in the promulgation a summary of 20 the information contained in the analysis’’; and 21 (5) in subsection (e), as so redesignated, by 22 striking ‘‘any statement required under subsection 23 (a) in conjunction with or as a part of any other 24 statement or analysis, provided that the statement 25 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 7 •S 870 IS or analysis satisfies the provisions of subsection (a)’’ 1 and inserting ‘‘any analysis required under sub- 2 section (b) in conjunction with, or as a part of, any 3 other statement or analysis if the other statement or 4 analysis satisfies the requirements of subsections (b) 5 and (c)’’. 6 SEC. 4. LEAST BURDENSOME OPTION OR EXPLANATION RE- 7 QUIRED. 8 Title II of the Unfunded Mandates Reform Act of 9 1995 (2 U.S.C. 1531 et seq.) is amended by striking sec- 10 tion 205 (2 U.S.C. 1535) and inserting the following: 11 ‘‘SEC. 205. LEAST BURDENSOME OPTION OR EXPLANATION 12 REQUIRED. 13 ‘‘Before promulgating any proposed or final rule for 14 which a regulatory impact analysis is required under sec- 15 tion 202, an agency shall— 16 ‘‘(1) identify and consider a reasonable number 17 of regulatory alternatives within the range of the 18 discretion of the agency under the statute author- 19 izing the rule, including the alternatives described in 20 section 202(c)(1)(B); and 21 ‘‘(2) from the alternatives identified and consid- 22 ered under paragraph (1), select the least costly, 23 most cost-effective, or least burdensome alternative 24 that achieves the objectives of the statute.’’. 25 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 8 •S 870 IS SEC. 5. INCLUSION OF APPLICATION TO INDEPENDENT 1 REGULATORY AGENCIES. 2 (a) IN GENERAL.—Section 421(1) of the Congres- 3 sional Budget Act of 1974 (2 U.S.C. 658(1)) is amended 4 by striking ‘‘, but does not include independent regulatory 5 agencies’’. 6 (b) EXEMPTION FOR MONETARY POLICY.—The Un- 7 funded Mandates Reform Act of 1995 (2 U.S.C. 1501 et 8 seq.) is amended by inserting after section 5 the following: 9 ‘‘SEC. 6. EXEMPTION FOR MONETARY POLICY. 10 ‘‘Nothing in title II, III, or IV shall apply to rules 11 that concern monetary policy proposed or implemented by 12 the Board of Governors of the Federal Reserve System 13 or the Federal Open Market Committee.’’. 14 SEC. 6. JUDICIAL REVIEW. 15 Title IV of the Unfunded Mandates Reform Act of 16 1995 is amended by striking section 401 (2 U.S.C. 1571) 17 and inserting the following: 18 ‘‘SEC. 401. JUDICIAL REVIEW. 19 ‘‘(a) IN GENERAL.—A person that is aggrieved by 20 final agency action in adopting a rule that is subject to 21 section 202 is entitled to judicial review of whether the 22 agency complied with section 202(b), 202(c)(1), or 205 23 with respect to the rule. 24 VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS 9 •S 870 IS ‘‘(b) SCOPE OF REVIEW.—Chapter 7 of title 5, 1 United States Code, shall govern the scope of judicial re- 2 view under subsection (a). 3 ‘‘(c) JURISDICTION.—Each court that has jurisdic- 4 tion to review a rule for compliance with section 553 of 5 title 5, United States Code, or under any other provision 6 of law, shall have jurisdiction to review a claim brought 7 under subsection (a). 8 ‘‘(d) RELIEF AVAILABLE.—In granting relief in an 9 action under this section, a court shall order the agency 10 that promulgated the rule that is under review to take re- 11 medial action consistent with chapter 7 of title 5, United 12 States Code.’’. 13 SEC. 7. EFFECTIVE DATE. 14 This Act shall take effect on the date that is 90 days 15 after the date of enactment of this Act. 16 Æ VerDate Sep 11 2014 03:09 Mar 30, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S870.IS S870 kjohnson on DSK79L0C42 with BILLS