II 

116TH CONGRESS 

1ST SESSION S. 870 

To amend the Unfunded Mandates Reform Act of 1995 to provide for regulatory 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 regulatory alternative, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Unfunded Mandates 

5 Accountability Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) The public has a right to know the benefits 

2 and costs of regulation. Effective regulatory pro3 grams provide important benefits to the public, in4 cluding protecting the environment, worker safety, 

5 and human health. Regulations also impose signifi6 cant costs on individuals, employers, and State, 

7 local, and tribal governments, diverting resources 

8 from other important priorities. 

9 (2) Better regulatory analysis and review 

10 should improve the quality of agency decisions, in11 creasing the benefits and reducing unwarranted 

12 costs of regulation. 

13 (3) Disclosure and scrutiny of key information 

14 underlying agency decisions should make the Fed15 eral Government more accountable to the public it 

16 serves. 

17 SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN 

18 RULES. 

19 Section 202 of the Unfunded Mandates Reform Act 

20 of 1995 (2 U.S.C. 1532) is amended— 

21 (1) by striking the section heading and insert22 ing the following: 


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1 ‘‘SEC. 202. REGULATORY IMPACT ANALYSES FOR CERTAIN 

2 RULES.’’; 

3 (2) by redesignating subsections (b) and (c) as 

4 subsections (d) and (e), respectively; 

5 (3) by striking subsection (a) and inserting the 

6 following: 

7 ‘‘(a) DEFINITION.—In this section, the term ‘cost’ 

8 means the cost of compliance and any reasonably foresee9 able indirect costs, including revenues lost, as a result of 

10 an agency rule subject to this section. 

11 ‘‘(b) REGULATORY IMPACT ANALYSES.— 

12 ‘‘(1) REQUIREMENT.—Before promulgating any 

13 proposed or final rule that may have an annual ef14 fect on the economy of $100,000,000 or more (ad15 justed for inflation), or that may result in the ex16 penditure by State, local, and tribal governments, in 

17 the aggregate, of $100,000,000 or more (adjusted 

18 for inflation) in any 1 year, the agency promulgating 

19 the rule shall prepare and publish in the Federal 

20 Register an initial and final regulatory impact anal21 ysis with respect to the rule. 

22 ‘‘(2) INITIAL REGULATORY IMPACT ANALYSIS.— 

23 An initial regulatory impact analysis required under 

24 paragraph (1) shall— 


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1 ‘‘(A) accompany the notice of proposed 

2 rulemaking with respect to the rule that is the 

3 subject of the analysis; and 

4 ‘‘(B) be open to public comment. 

5 ‘‘(3) FINAL REGULATORY IMPACT ANALYSIS.— 

6 A final regulatory impact analysis required under 

7 paragraph (1) shall accompany the final rule that is 

8 the subject of the analysis. 

9 ‘‘(c) CONTENT.—Each initial and final regulatory im10 pact analysis prepared and published under subsection (b) 

11 shall include, with respect to the rule that is the subject 

12 of the analysis— 

13 ‘‘(1)(A) an analysis of the anticipated benefits 

14 and costs of the rule, which shall be quantified to 

15 the extent feasible; 

16 ‘‘(B) an analysis of the benefits and costs of a 

17 reasonable number of regulatory alternatives within 

18 the range of the discretion of the agency under the 

19 statute authorizing the rule, including alternatives 

20 that— 

21 ‘‘(i) require no action by the Federal Gov22 ernment; and 

23 ‘‘(ii)(I) use incentives and market-based 

24 means to encourage the desired behavior; 


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1 ‘‘(II) provide information based upon 

2 which the public can make choices; or 

3 ‘‘(III) employ other flexible regulatory op4 tions that permit the greatest flexibility in 

5 achieving the objectives of the statute author6 izing the rule; and 

7 ‘‘(C) an explanation of how the rule complies 

8 with the requirements of section 205; 

9 ‘‘(2) an assessment of the extent to which— 

10 ‘‘(A) the costs to State, local, and tribal 

11 governments may be paid with Federal financial 

12 assistance (or otherwise paid for by the Federal 

13 Government); and 

14 ‘‘(B) Federal resources are available to 

15 carry out the rule; 

16 ‘‘(3) estimates of— 

17 ‘‘(A) any disproportionate budgetary ef18 fects of the rule upon any particular— 

19 ‘‘(i) regions of the United States; 

20 ‘‘(ii) State, local, or tribal govern21 ments; 

22 ‘‘(iii) types of communities, including 

23 urban or rural communities; or 

24 ‘‘(iv) segments of the private sector; 

25 and 


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1 ‘‘(B) the effect of the rule on job creation 

2 or job loss, which shall be quantified to the ex3 tent feasible; and 

4 ‘‘(4)(A) a description of the extent of the prior 

5 consultation of the agency under section 204 with 

6 elected representatives of each affected State, local, 

7 or tribal government; 

8 ‘‘(B) a summary of the comments and concerns 

9 that were presented to the agency orally or in writ10 ing by State, local, or tribal governments; and 

11 ‘‘(C) a summary of the evaluation by the agen12 cy of the comments and concerns described in sub13 paragraph (B).’’; 

14 (4) in subsection (d), as so redesignated, by 

15 striking ‘‘a statement under subsection (a) is re16 quired, the agency shall include in the promulgation 

17 a summary of the information contained in the 

18 statement’’ and inserting ‘‘an analysis under sub19 section (b) is required, the agency promulgating the 

20 rule shall include in the promulgation a summary of 

21 the information contained in the analysis’’; and 

22 (5) in subsection (e), as so redesignated, by 

23 striking ‘‘any statement required under subsection 

24 (a) in conjunction with or as a part of any other 

25 statement or analysis, provided that the statement 


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1 or analysis satisfies the provisions of subsection (a)’’ 

2 and inserting ‘‘any analysis required under sub3 section (b) in conjunction with, or as a part of, any 

4 other statement or analysis if the other statement or 

5 analysis satisfies the requirements of subsections (b) 

6 and (c)’’. 

7 SEC. 4. LEAST BURDENSOME OPTION OR EXPLANATION RE8 QUIRED. 

9 Title II of the Unfunded Mandates Reform Act of 

10 1995 (2 U.S.C. 1531 et seq.) is amended by striking sec11 tion 205 (2 U.S.C. 1535) and inserting the following: 

12 ‘‘SEC. 205. LEAST BURDENSOME OPTION OR EXPLANATION 

13 REQUIRED. 

14 ‘‘Before promulgating any proposed or final rule for 

15 which a regulatory impact analysis is required under sec16 tion 202, an agency shall— 

17 ‘‘(1) identify and consider a reasonable number 

18 of regulatory alternatives within the range of the 

19 discretion of the agency under the statute author20 izing the rule, including the alternatives described in 

21 section 202(c)(1)(B); and 

22 ‘‘(2) from the alternatives identified and consid23 ered under paragraph (1), select the least costly, 

24 most cost-effective, or least burdensome alternative 

25 that achieves the objectives of the statute.’’. 


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1 SEC. 5. INCLUSION OF APPLICATION TO INDEPENDENT 

2 REGULATORY AGENCIES. 

3 (a) IN GENERAL.—Section 421(1) of the Congres4 sional Budget Act of 1974 (2 U.S.C. 658(1)) is amended 

5 by striking ‘‘, but does not include independent regulatory 

6 agencies’’. 

7 (b) EXEMPTION FOR MONETARY POLICY.—The Un8 funded Mandates Reform Act of 1995 (2 U.S.C. 1501 et 

9 seq.) is amended by inserting after section 5 the following: 

10 ‘‘SEC. 6. EXEMPTION FOR MONETARY POLICY. 

11 ‘‘Nothing in title II, III, or IV shall apply to rules 

12 that concern monetary policy proposed or implemented by 

13 the Board of Governors of the Federal Reserve System 

14 or the Federal Open Market Committee.’’. 

15 SEC. 6. JUDICIAL REVIEW. 

16 Title IV of the Unfunded Mandates Reform Act of 

17 1995 is amended by striking section 401 (2 U.S.C. 1571) 

18 and inserting the following: 

19 ‘‘SEC. 401. JUDICIAL REVIEW. 

20 ‘‘(a) IN GENERAL.—A person that is aggrieved by 

21 final agency action in adopting a rule that is subject to 

22 section 202 is entitled to judicial review of whether the 

23 agency complied with section 202(b), 202(c)(1), or 205 

24 with respect to the rule. 


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1 ‘‘(b) SCOPE OF REVIEW.—Chapter 7 of title 5, 

2 United States Code, shall govern the scope of judicial re3 view under subsection (a). 

4 ‘‘(c) JURISDICTION.—Each court that has jurisdic5 tion to review a rule for compliance with section 553 of 

6 title 5, United States Code, or under any other provision 

7 of law, shall have jurisdiction to review a claim brought 

8 under subsection (a). 

9 ‘‘(d) RELIEF AVAILABLE.—In granting relief in an 

10 action under this section, a court shall order the agency 

11 that promulgated the rule that is under review to take re12 medial action consistent with chapter 7 of title 5, United 

13 States Code.’’. 

14 SEC. 7. EFFECTIVE DATE. 

15 This Act shall take effect on the date that is 90 days 

16 after the date of enactment of this Act. 

Æ 


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