Unfunded Mandates Information and Transparency Act of 2020

II 116TH CONGRESS 2D SESSION S. 3689 To provide for additional safeguards with respect to imposing Federal mandates, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 12, 2020 Mrs. FISCHER (for herself and Mr. LANKFORD) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs A BILL To provide for additional safeguards with respect to imposing Federal mandates, 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 Information and Transparency Act of 2020’’. 5 SEC. 2. PURPOSE. 6 The purposes of this Act are— 7 (1) to improve the quality of the deliberations 8 of Congress with respect to proposed Federal man- 9 dates by— 10 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 3689 IS (A) providing Congress and the public with 1 more complete information about the effects of 2 such mandates; and 3 (B) ensuring that Congress acts on such 4 mandates only after focused deliberation on 5 their effects; and 6 (2) to enhance the ability of Congress and the 7 public to identify Federal mandates that may impose 8 undue harm on consumers, workers, employers, 9 small businesses, private property owners, and State, 10 local, and Tribal governments. 11 SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE 12 STUDIES ON POLICIES INVOLVING CHANGES 13 IN CONDITIONS OF GRANT AID. 14 Section 202(g) of the Congressional Budget Act of 15 1974 (2 U.S.C. 602(g)) is amended by adding at the end 16 the following: 17 ‘‘(3) ADDITIONAL STUDIES.—At the request of 18 any Chairman or ranking member of the minority of 19 a Committee of the Senate or the House of Rep- 20 resentatives, the Director shall conduct an assess- 21 ment comparing the authorized level of funding in a 22 bill or resolution to the prospective costs of carrying 23 out any changes to a condition of Federal assistance 24 being imposed on State, local, or tribal governments 25 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 3689 IS participating in the Federal assistance program con- 1 cerned or, in the case of a bill or joint resolution 2 that authorizes such sums as are necessary, an as- 3 sessment of an estimated level of funding compared 4 to such costs.’’. 5 SEC. 4. CLARIFYING THE DEFINITION OF DIRECT COSTS TO 6 REFLECT CONGRESSIONAL BUDGET OFFICE 7 PRACTICE. 8 Section 421(3) of the Congressional Budget Act of 9 1974 (2 U.S.C. 658(3)) is amended— 10 (1) in subparagraph (A)(i), by inserting ‘‘incur 11 or’’ before ‘‘be required’’; and 12 (2) in subparagraph (B), by inserting after ‘‘to 13 spend’’ the following: ‘‘or could forgo in profits, in- 14 cluding costs passed on to consumers or other enti- 15 ties taking into account, to the extent practicable, 16 behavioral changes,’’. 17 SEC. 5. EXPANDING THE SCOPE OF REPORTING REQUIRE- 18 MENTS TO INCLUDE REGULATIONS IMPOSED 19 BY INDEPENDENT REGULATORY AGENCIES. 20 Section 421(1) of the Congressional Budget Act of 21 1974 (2 U.S.C. 658(1)) is amended by striking ‘‘, but does 22 not include independent regulatory agencies’’ and insert- 23 ing ‘‘, except it does not include the Board of Governors 24 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 3689 IS of the Federal Reserve System or the Federal Open Mar- 1 ket Committee’’. 2 SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGE- 3 MENT AND BUDGET WITH OFFICE OF INFOR- 4 MATION AND REGULATORY AFFAIRS. 5 The Unfunded Mandates Reform Act of 1995 (2 6 U.S.C. 1501 et seq.) is amended— 7 (1) by striking ‘‘tribal’’ each place that term 8 appears and inserting ‘‘Tribal’’; 9 (2) in section 103(c) (2 U.S.C. 1511(c))— 10 (A) in the subsection heading, by striking 11 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 12 inserting ‘‘OFFICE OF INFORMATION AND REG- 13 ULATORY AFFAIRS’’; and 14 (B) by striking ‘‘Director of the Office of 15 Management and Budget’’ and inserting ‘‘Ad- 16 ministrator of the Office of Information and 17 Regulatory Affairs’’; 18 (3) in section 205(c) (2 U.S.C. 1535(c))— 19 (A) in the subsection heading, by striking 20 ‘‘OMB’’; and 21 (B) by striking ‘‘Director of the Office of 22 Management and Budget’’ and inserting ‘‘Ad- 23 ministrator of the Office of Information and 24 Regulatory Affairs’’; and 25 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 3689 IS (4) in section 206 (2 U.S.C. 1536), by striking 1 ‘‘Director of the Office of Management and Budget’’ 2 and inserting ‘‘Administrator of the Office of Infor- 3 mation and Regulatory Affairs’’. 4 SEC. 7. APPLYING SUBSTANTIVE POINT OF ORDER TO PRI- 5 VATE SECTOR MANDATES. 6 Section 425(a)(2) of the Congressional Budget Act 7 of 1974 (2 U.S.C. 658d(a)(2)) is amended, in the matter 8 preceding subparagraph (A)— 9 (1) by striking ‘‘Federal intergovernmental 10 mandates’’ and inserting ‘‘Federal mandates’’; and 11 (2) by inserting ‘‘or 424(b)(1)’’ after ‘‘section 12 424(a)(1)’’. 13 SEC. 8. REGULATORY PROCESS AND PRINCIPLES. 14 Section 201 of the Unfunded Mandates Reform Act 15 of 1995 (2 U.S.C. 1531) is amended to read as follows: 16 ‘‘SEC. 201. REGULATORY PROCESS AND PRINCIPLES. 17 ‘‘(a) IN GENERAL.—Each agency shall, unless other- 18 wise expressly prohibited by law, assess the effects of Fed- 19 eral regulatory actions on State, local, and Tribal govern- 20 ments and the private sector (other than to the extent that 21 such regulatory actions incorporate requirements specifi- 22 cally set forth in law) in accordance with the following 23 principles: 24 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 3689 IS ‘‘(1) Each agency shall identify the problem 1 that it intends to address (including, if applicable, 2 the failures of private markets or public institutions 3 that warrant new agency action) as well as assess 4 the significance of that problem. 5 ‘‘(2) Each agency shall examine whether exist- 6 ing regulations (or other law) have created, or con- 7 tributed to, the problem that a new regulation is in- 8 tended to correct and whether those regulations (or 9 other law) should be modified to achieve the in- 10 tended goal of regulation more effectively. 11 ‘‘(3) Each agency shall identify and assess 12 available alternatives to direct regulation, including 13 providing economic incentives to encourage the de- 14 sired behavior, such as user fees or marketable per- 15 mits, or providing information upon which choices 16 can be made by the public. 17 ‘‘(4) If an agency determines that a regulation 18 is the best available method of achieving the regu- 19 latory objective, it shall design its regulations in the 20 most cost-effective manner to achieve the regulatory 21 objective. In doing so, each agency shall consider in- 22 centives for innovation, consistency, predictability, 23 the costs of enforcement and compliance (to the gov- 24 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 3689 IS ernment, regulated entities, and the public), flexi- 1 bility, distributive impacts, and equity. 2 ‘‘(5) Each agency shall assess both the costs 3 and the benefits of the intended regulation and, rec- 4 ognizing that some costs and benefits are difficult to 5 quantify, propose or adopt a regulation, unless ex- 6 pressly prohibited by law, only upon a reasoned de- 7 termination that the benefits of the intended regula- 8 tion justify its costs. 9 ‘‘(6) Each agency shall base its decisions on the 10 best reasonably obtainable scientific, technical, eco- 11 nomic, and other information concerning the need 12 for, and consequences of, the intended regulation. 13 ‘‘(7) Each agency shall identify and assess al- 14 ternative forms of regulation and shall, to the extent 15 feasible, specify performance objectives, rather than 16 specifying the behavior or manner of compliance 17 that regulated entities must adopt. 18 ‘‘(8) Each agency shall avoid regulations that 19 are inconsistent, incompatible, or duplicative with its 20 other regulations or those of other Federal agencies. 21 ‘‘(9) Each agency shall tailor its regulations to 22 minimize the costs of the cumulative impact of regu- 23 lations. 24 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 3689 IS ‘‘(10) Each agency shall draft its regulations to 1 be simple and easy to understand, with the goal of 2 minimizing the potential for uncertainty and litiga- 3 tion arising from such uncertainty. 4 ‘‘(b) REGULATORY ACTION DEFINED.—In this sec- 5 tion, the term ‘regulatory action’ means any substantive 6 action by an agency (normally published in the Federal 7 Register) that promulgates or is expected to lead to the 8 promulgation of a final rule or regulation, including ad- 9 vance notices of proposed rulemaking and notices of pro- 10 posed rulemaking.’’. 11 SEC. 9. EXPANDING THE SCOPE OF STATEMENTS TO AC- 12 COMPANY SIGNIFICANT REGULATORY AC- 13 TIONS. 14 (a) IN GENERAL.—Section 202(a) of the Unfunded 15 Mandates Reform Act of 1995 (2 U.S.C. 1532(a)) is 16 amended to read as follows: 17 ‘‘(a) IN GENERAL.—Unless otherwise expressly pro- 18 hibited by law, before promulgating any general notice of 19 proposed rulemaking or any final rule, or within 6 months 20 after promulgating any final rule that was not preceded 21 by a general notice of proposed rulemaking, if the pro- 22 posed rulemaking or final rule includes a Federal mandate 23 that may result in an annual effect on State, local, or 24 Tribal governments, or to the private sector, in the aggre- 25 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 3689 IS gate of $100,000,000 or more in any 1 year, the agency 1 shall prepare a written statement containing the following: 2 ‘‘(1) The text of the draft proposed rulemaking 3 or final rule, together with a reasonably detailed de- 4 scription of the need for the proposed rulemaking or 5 final rule and an explanation of how the proposed 6 rulemaking or final rule will meet that need. 7 ‘‘(2) An assessment of the potential costs and 8 benefits of the proposed rulemaking or final rule, in- 9 cluding an explanation of the manner in which the 10 proposed rulemaking or final rule is consistent with 11 a statutory requirement and avoids undue inter- 12 ference with State, local, and Tribal governments in 13 the exercise of their governmental functions. 14 ‘‘(3) A qualitative and quantitative assessment, 15 including the underlying analysis, of benefits antici- 16 pated from the proposed rulemaking or final rule 17 (such as the promotion of the efficient functioning of 18 the economy and private markets, the enhancement 19 of health and safety, the protection of the natural 20 environment, and the elimination or reduction of dis- 21 crimination or bias). 22 ‘‘(4) A qualitative and quantitative assessment, 23 including the underlying analysis, of costs antici- 24 pated from the proposed rulemaking or final rule 25 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 3689 IS (such as the direct costs both to the Government in 1 administering the final rule and to businesses and 2 others in complying with the final rule, and any ad- 3 verse effects on the efficient functioning of the econ- 4 omy, private markets (including productivity, em- 5 ployment, and international competitiveness), health, 6 safety, and the natural environment). 7 ‘‘(5) Estimates by the agency, if and to the ex- 8 tent that the agency determines that accurate esti- 9 mates are reasonably feasible, of— 10 ‘‘(A) the future compliance costs of the 11 Federal mandate; and 12 ‘‘(B) any disproportionate budgetary ef- 13 fects of the Federal mandate upon any par- 14 ticular regions of the United States or par- 15 ticular State, local, or tribal governments, 16 urban or rural or other types of communities, 17 or particular segments of the private sector. 18 ‘‘(6)(A) A detailed description of the extent of 19 the agency’s prior consultation with the private sec- 20 tor and elected representatives under section 204 of 21 the affected State, local, and Tribal governments. 22 ‘‘(B) A detailed summary of the comments and 23 concerns that were presented by the private sector 24 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 3689 IS and State, local, or Tribal governments either orally 1 or in writing to the agency. 2 ‘‘(C) A detailed summary of the agency’s eval- 3 uation of those comments and concerns. 4 ‘‘(7) A detailed summary of how the agency 5 complied with each of the regulatory principles de- 6 scribed in section 201. 7 ‘‘(8) An assessment of the effects that the pro- 8 posed rulemaking or final rule are expected to have 9 on private property owners, including the use and 10 value of affected property.’’. 11 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sec- 12 tion 202(b) of the Unfunded Mandates Reform Act of 13 1995 (2 U.S.C. 1532(b)) is amended by inserting ‘‘de- 14 tailed’’ before ‘‘summary’’. 15 SEC. 10. ENHANCED STAKEHOLDER CONSULTATION. 16 Section 204 of the Unfunded Mandates Reform Act 17 of 1995 (2 U.S.C. 1534) is amended— 18 (1) in the section heading, by inserting ‘‘AND 19 PRIVATE SECTOR’’ before ‘‘INPUT’’; 20 (2) in subsection (a)— 21 (A) by inserting ‘‘, and impacted parties 22 within the private sector (including small busi- 23 ness),’’ after ‘‘on their behalf)’’; and 24 VerDate Sep 11 2014 21:15 May 26, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3689.IS S3689 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 3689 IS (B) by striking ‘‘Federal intergovernmental 1 mandates’’ and inserting ‘‘Federal mandates’’; 2 and 3 (3) by amending subsection (c) to read as fol- 4 lows: 5 ‘‘(c) GUIDELINES.—For appropriate implementation 6 of subsections (a) and (b) consistent with applicable laws 7 and regulations, the following guidelines shall be followed: [Text truncated for display. Full text available on Congress.gov.]