Unfunded Mandates Accountability and Transparency Act

II Calendar No. 643 116TH CONGRESS 2D SESSION S. 4077 [Report No. 116–333] 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 JUNE 25, 2020 Mr. PORTMAN (for himself, Mrs. FISCHER, Mr. LANKFORD, 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 DECEMBER 16, 2020 Reported by Mr. JOHNSON, with an amendment [Insert the part printed in italic] 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 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4077 RS SEC. 2. FINDINGS. 1 Congress finds the following: 2 (1) The public has a right to know the benefits 3 and costs of regulation. Effective regulatory pro- 4 grams provide important benefits to the public, in- 5 cluding protecting the environment, worker safety, 6 and human health. Regulations also impose signifi- 7 cant costs on individuals, employers, and State, 8 local, and Tribal governments, diverting resources 9 from other important priorities. 10 (2) Better regulatory analysis and review 11 should improve the quality of agency decisions, in- 12 creasing the benefits and reducing unwarranted 13 costs of regulation. 14 (3) Disclosure and scrutiny of key information 15 underlying agency decisions should make the Fed- 16 eral Government more accountable to the public it 17 serves. 18 SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN 19 RULES. 20 The Unfunded Mandates Reform Act of 1995 (2 21 U.S.C. 1501 et seq.) is amended— 22 (1) by striking ‘‘tribal’’ each place that term 23 appears and inserting ‘‘Tribal’’; 24 (2) in section 3 (2 U.S.C. 1502)— 25 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4077 RS (A) in paragraph (1), by striking ‘‘and’’ at 1 the end; 2 (B) in paragraph (2), by striking the pe- 3 riod at the end and inserting ‘‘; and’’; and 4 (C) by adding at the end the following: 5 ‘‘(3) the term ‘major rule’ means a rule, as de- 6 fined in section 551 of title 5, United States Code, 7 that the Administrator of the Office of Information 8 and Regulatory Affairs determines is likely to 9 cause— 10 ‘‘(A) an annual effect on the economy of 11 $100,000,000 or more, adjusted once every 5 12 years to reflect increases in the Consumer Price 13 Index for All Urban Consumers, as published 14 by the Bureau of Labor Statistics of the De- 15 partment of Labor; 16 ‘‘(B) a major increase in costs or prices for 17 consumers, individual industries, Federal, 18 State, local, or Tribal government agencies, or 19 geographic regions; or 20 ‘‘(C) significant adverse effects on competi- 21 tion, employment, investment, productivity, in- 22 novation, public health and safety, or the ability 23 of United States-based enterprises to compete 24 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4077 RS with foreign-based enterprises in domestic and 1 export markets.’’; and 2 (3) in section 202 (2 U.S.C. 1532)— 3 (A) by striking the section heading and in- 4 serting the following: 5 ‘‘SEC. 202. REGULATORY IMPACT ANALYSES FOR CERTAIN 6 RULES.’’; 7 (B) by redesignating subsections (b) and 8 (c) as subsections (d) and (e), respectively; 9 (C) by striking subsection (a) and insert- 10 ing the following: 11 ‘‘(a) DEFINITION OF COST.—In this section, the term 12 ‘cost’ means the cost of compliance and any reasonably 13 foreseeable indirect costs, including revenues lost, as a re- 14 sult of a major rule of an agency that is subject to this 15 section. 16 ‘‘(b) REGULATORY IMPACT ANALYSES.— 17 ‘‘(1) REQUIREMENT.—Before promulgating any 18 proposed or final major rule, the agency promul- 19 gating the major rule shall prepare and publish in 20 the Federal Register an initial and final regulatory 21 impact analysis with respect to the major rule. 22 ‘‘(2) INITIAL REGULATORY IMPACT ANALYSIS.— 23 An initial regulatory impact analysis required under 24 paragraph (1) shall— 25 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4077 RS ‘‘(A) accompany the notice of proposed 1 rulemaking with respect to the major rule that 2 is the 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 major rule 7 that is 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 major rule that is the 11 subject of the analysis— 12 ‘‘(1)(A) an analysis of the anticipated benefits 13 and costs of the major rule, which shall be quan- 14 tified to 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 major rule, including alter- 19 natives 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 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4077 RS ‘‘(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 major rule; and 6 ‘‘(C) an explanation of how the major rule com- 7 plies 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 major rule; 15 ‘‘(3) estimates of— 16 ‘‘(A) any disproportionate budgetary ef- 17 fects of the major 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 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4077 RS ‘‘(B) the effect of the major rule on job 1 creation or job loss, which shall be quantified to 2 the extent 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 (D) in subsection (d), as so redesignated, 14 by striking ‘‘a statement under subsection (a) is 15 required, the agency shall include in the pro- 16 mulgation a summary of the information con- 17 tained in the statement’’ and inserting ‘‘an 18 analysis under subsection (b) is required, the 19 agency promulgating the major rule shall in- 20 clude in the promulgation a summary of the in- 21 formation contained in the analysis’’; and 22 (E) in subsection (e), as so redesignated, 23 by striking ‘‘any statement required under sub- 24 section (a) in conjunction with or as a part of 25 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4077 RS any other statement or analysis, provided that 1 the statement or analysis satisfies the provi- 2 sions of subsection (a)’’ and inserting ‘‘any 3 analysis required under subsection (b) in con- 4 junction with, or as a part of, any other state- 5 ment or analysis if the other statement or anal- 6 ysis satisfies the requirements of subsections 7 (b) and (c)’’. 8 SEC. 4. ENHANCED STAKEHOLDER CONSULTATION. 9 Section 204 of the Unfunded Mandates Reform Act 10 of 1995 (2 U.S.C. 1534) is amended— 11 (1) in the section heading, by inserting ‘‘AND 12 PRIVATE SECTOR’’ before ‘‘INPUT’’; 13 (2) in subsection (a)— 14 (A) by inserting ‘‘, and impacted parties 15 within the private sector (including small busi- 16 nesses),’’ after ‘‘on their behalf)’’; and 17 (B) by striking ‘‘Federal intergovernmental 18 mandates’’ and inserting ‘‘Federal mandates’’; 19 and 20 (3) by amending subsection (c) to read as fol- 21 lows: 22 ‘‘(c) GUIDELINES.—For appropriate implementation 23 of subsections (a) and (b) consistent with applicable laws 24 and regulations, the following guidelines shall be followed: 25 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4077 RS ‘‘(1) Consultations shall take place as early as 1 possible, before issuance of a notice of proposed rule- 2 making, continue through the final rule stage, and 3 be integrated explicitly into the rulemaking process. 4 ‘‘(2) Agencies shall consult with a wide variety 5 of State, local, and Tribal officials and impacted 6 parties within the private sector (including small 7 businesses). Geographic, political, and other factors 8 that may differentiate varying points of view should 9 be considered. 10 ‘‘(3) Agencies should estimate benefits and 11 costs to assist with these consultations. The scope of 12 the consultation should reflect the cost and signifi- 13 cance of the Federal mandate being considered. 14 ‘‘(4) Agencies shall, to the extent practicable— 15 ‘‘(A) seek out the views of State, local, and 16 Tribal governments, and impacted parties with- 17 in the private sector (including small busi- 18 nesses), on costs, benefits, and risks; and 19 ‘‘(B) solicit ideas about alternative meth- 20 ods of compliance and potential flexibilities, and 21 input on whether the Federal regulation will 22 harmonize with and not duplicate similar laws 23 in other levels of government. 24 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4077 RS ‘‘(5) Consultations shall address the cumulative 1 impact of regulations on the affected entities. 2 ‘‘(6) Agencies may accept electronic submis- 3 sions of comments by relevant parties but may not 4 use those comments as the sole method of satisfying 5 the guidelines in this subsection.’’. 6 SEC. 5. MAXIMIZE NET BENEFITS OR PROVIDE EXPLA- 7 NATION. 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. MAXIMIZE NET BENEFITS. 12 ‘‘(a) DEFINITION OF COST.—In this section, the term 13 ‘cost’ has the meaning given the term in section 202(a). 14 ‘‘(b) REQUIREMENT.—Before promulgating any pro- 15 posed or final major rule for which a regulatory impact 16 analysis is required under section 202, an agency shall 17 from the alternatives identified and considered under sec- 18 tion 202(c)(1)(B), select the alternative that maximizes 19 net benefits, taking into consideration only the costs and 20 benefits that arise within the scope of the statutory provi- 21 sion that authorizes the rulemaking. 22 ‘‘(c) EXCEPTIONS.—An agency may adopt an alter- 23 native other than as required under subsection (b) only 24 if— 25 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4077 RS ‘‘(1) the Administrator of the Office of Infor- 1 mation and Regulatory Affairs approves the adop- 2 tion by the agency of the alternative; and 3 ‘‘(2) the alternative is adopted to— 4 ‘‘(A) account for costs or benefits that can- 5 not be quantified, including costs or benefits re- 6 lated to constitutional or civil rights, provided 7 that the agency identifies all such costs and 8 benefits and explains why those costs and bene- 9 fits justify the adoption of the alternative; or 10 ‘‘(B) achieve additional benefits or cost re- 11 ductions, provided that the agency— 12 ‘‘(i) identifies— 13 ‘‘(I) all such additional benefits 14 and the associated costs of those ben- 15 efits; and 16 ‘‘(II) all such cost reductions and 17 the associated benefits of those cost 18 reductions; and 19 ‘‘(ii) explains why— 20 ‘‘(I) the additional benefits jus- 21 tify the additional costs; or 22 ‘‘(II) the additional cost reduc- 23 tions justify any benefits foregone.’’. 24 VerDate Sep 11 2014 00:37 Dec 17, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.RS S4077 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4077 RS SEC. 6. NEW AUTHORITIES AND RESPONSIBILITIES FOR OF- 1 FICE OF INFORMATION AND REGULATORY 2 AFFAIRS. 3 Section 208 of the Unfunded Mandates Reform Act 4 of 1995 (2 U.S.C. 1538) is amended to read as follows: 5 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF- 6 FAIRS RESPONSIBILITIES. 7 ‘‘(a) IN GENERAL.—The Administrator of the Office 8 of Information and Regulatory Affairs (in this section re- 9 ferred to as the ‘Administrator’) shall provide meaningful 10 guidance and oversight so that the major rules of an agen- 11 cy for which a regulatory impact analysis is required under 12 section 202— 13 ‘‘(1) are consistent with the principles and re- 14 quirements of this title, as well as other applicable 15 laws; and 16 ‘‘(2) and do not conflict with the policies or ac- 17 tions of another agency. 18 ‘‘(b) NOTIFICATION.—If the Administrator deter- 19 mines that the major rules of an agency for which a regu- 20 latory impact analysis is required under section 202 do 21 not comply with the principles and requirements of this 22 title, are not consistent with other applicable laws, o [Text truncated for display. Full text available on Congress.gov.]