IB 

Union Calendar No. 338 

112TH CONGRESS 

2D SESSION H. R. 373 

[Report No. 112–483, Part I] 

To amend the Unfunded Mandates Reform Act of 1995 to ensure that 

actions taken by regulatory agencies are subject to that Act, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 20, 2011 

Ms. FOXX (for herself, Mr. CUELLAR, and Mr. KISSELL) introduced the following bill; which was referred to the Committee on Oversight and Government Reform, and in addition to the Committees on Rules, the Budget, and the Judiciary, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

MAY 16, 2012 

Additional sponsors: Mr. FORBES, Mr. SCHOCK, Mr. GOODLATTE, and Mr. 

YODER

MAY 16, 2012 

Reported from the Committee on Oversight and Government Reform with an 

amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

MAY 16, 2012 

The Committees on Rules, the Budget, and the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 

[For text of introduced bill, see copy of bill as introduced on January 20, 2011] 


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A BILL 

To amend the Unfunded Mandates Reform Act of 1995 

to ensure that actions taken by regulatory agencies are 

subject to that Act, and for other purposes. 


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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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the ‘‘Un5 funded Mandates Information and Transparency Act of 

6 2011’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Purpose. 

Sec. 3. Providing for Congressional Budget Office studies on policies involving 

changes in conditions of grant aid. 

Sec. 4. Clarifying the definition of direct costs to reflect Congressional Budget Office practice. 

Sec. 5. Expanding the scope of reporting requirements to include regulations imposed by independent regulatory agencies. 

Sec. 6. Amendments to replace Office of Management and Budget with Office of 

Information and Regulatory Affairs. 

Sec. 7. Applying substantive point of order to private sector mandates. 

Sec. 8. Regulatory process and principles. 

Sec. 9. Expanding the scope of statements to accompany significant regulatory 

actions. 

Sec. 10. Enhanced stakeholder consultation. 

Sec. 11. New authorities and responsibilities for Office of Information and Regulatory Affairs. 

Sec. 12. Retrospective analysis of existing Federal regulations. 

Sec. 13. Expansion of judicial review. 

9 SEC. 2. PURPOSE. 

10 The purpose of this Act is— 

11 (1) to improve the quality of the deliberations of 

12 Congress with respect to proposed Federal mandates 

13 by— 

14 (A) providing Congress and the public with 

15 more complete information about the effects of 

16 such mandates; and 


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1 (B) ensuring that Congress acts on such 

2 mandates only after focused deliberation on their 

3 effects; and 

4 (2) to enhance the ability of Congress and the 

5 public to identify Federal mandates that may impose 

6 undue harm on consumers, workers, employers, small 

7 businesses, and State, local, and tribal governments. 

8 SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE 

9 STUDIES ON POLICIES INVOLVING CHANGES 

10 IN CONDITIONS OF GRANT AID. 

11 Section 202(g) of the Congressional Budget Act of 1974 

12 (2 U.S.C. 602(g)) is amended by adding at the end the fol13 lowing new paragraph: 

14 ‘‘(3) ADDITIONAL STUDIES.—At the request of 

15 any Chairman or ranking member of the minority of 

16 a Committee of the Senate or the House of Represent17 atives, the Director shall conduct an assessment com18 paring the authorized level of funding in a bill or res19 olution to the prospective costs of carrying out any 

20 changes to a condition of Federal assistance being im21 posed on State, local, or tribal governments partici22 pating in the Federal assistance program concerned 

23 or, in the case of a bill or joint resolution that au24 thorizes such sums as are necessary, an assessment of 


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1 an estimated level of funding compared to such 

2 costs.’’. 

3 SEC. 4. CLARIFYING THE DEFINITION OF DIRECT COSTS TO 

4 REFLECT CONGRESSIONAL BUDGET OFFICE 

5 PRACTICE. 

6 Section 421(3) of the Congressional Budget Act of 1974 

7 (2 U.S.C. 658(3)(A)(i)) is amended— 

8 (1) in subparagraph (A)(i), by inserting ‘‘incur 

9 or’’ before ‘‘be required’’; and 

10 (2) in subparagraph (B), by inserting after ‘‘to 

11 spend’’ the following: ‘‘or could forgo in profits, in12 cluding costs passed on to consumers or other entities 

13 taking into account, to the extent practicable, behav14 ioral changes,’’. 

15 SEC. 5. EXPANDING THE SCOPE OF REPORTING REQUIRE16 MENTS TO INCLUDE REGULATIONS IMPOSED 

17 BY INDEPENDENT REGULATORY AGENCIES. 

18 Paragraph (1) of section 421 of the Congressional 

19 Budget Act of 1974 (2 U.S.C. 658) is amended by striking 

20 ‘‘, but does not include independent regulatory agencies’’. 

21 SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGE22 MENT AND BUDGET WITH OFFICE OF INFOR23 MATION AND REGULATORY AFFAIRS. 

24 The Unfunded Mandates Reform Act of 1995 (Public 

25 Law 104–4; 2 U.S.C. 1511 et seq.) is amended— 


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1 (1) in section 103(c) (2 U.S.C. 1511(c))— 

2 (A) in the subsection heading, by striking 

3 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 

4 inserting ‘‘OFFICE OF INFORMATION AND REGU5 LATORY AFFAIRS’’; and 

6 (B) by striking ‘‘Director of the Office of 

7 Management and Budget’’ and inserting ‘‘Ad8 ministrator of the Office of Information and 

9 Regulatory Affairs’’; 

10 (2) in section 205(c) (2 U.S.C. 1535(c))— 

11 (A) in the subsection heading, by striking 

12 ‘‘OMB’’; and 

13 (B) by striking ‘‘Director of the Office of 

14 Management and Budget’’ and inserting ‘‘Ad15 ministrator of the Office of Information and 

16 Regulatory Affairs’’; and 

17 (3) in section 206 (2 U.S.C. 1536), by striking 

18 ‘‘Director of the Office of Management and Budget’’ 

19 and inserting ‘‘Administrator of the Office of Infor20 mation and Regulatory Affairs’’. 

21 SEC. 7. APPLYING SUBSTANTIVE POINT OF ORDER TO PRI22 VATE SECTOR MANDATES. 

23 Section 425(a)(2) of the Congressional Budget Act of 

24 1974 (2 U.S.C. 658d(a)(2)) is amended— 


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1 (1) by striking ‘‘Federal intergovernmental man2 dates’’ and inserting ‘‘Federal mandates’’; and 

3 (2) by inserting ‘‘or 424(b)(1)’’ after ‘‘section 

4 424(a)(1)’’. 

5 SEC. 8. REGULATORY PROCESS AND PRINCIPLES. 

6 Section 201 of the Unfunded Mandates Reform Act of 

7 1995 (2 U.S.C. 1531) is amended to read as follows: 

8 ‘‘SEC. 201. REGULATORY PROCESS AND PRINCIPLES. 

9 ‘‘(a) IN GENERAL.—Each agency shall, unless other10 wise expressly prohibited by law, assess the effects of Federal 

11 regulatory actions on State, local, and tribal governments 

12 and the private sector (other than to the extent that such 

13 regulatory actions incorporate requirements specifically set 

14 forth in law) in accordance with the following principles: 

15 ‘‘(1) Each agency shall identify the problem that 

16 it intends to address (including, if applicable, the 

17 failures of private markets or public institutions that 

18 warrant new agency action) as well as assess the sig19 nificance of that problem. 

20 ‘‘(2) Each agency shall examine whether existing 

21 regulations (or other law) have created, or contributed 

22 to, the problem that a new regulation is intended to 

23 correct and whether those regulations (or other law) 

24 should be modified to achieve the intended goal of reg25 ulation more effectively. 


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1 ‘‘(3) Each agency shall identify and assess avail2 able alternatives to direct regulation, including pro3 viding economic incentives to encourage the desired 

4 behavior, such as user fees or marketable permits, or 

5 providing information upon which choices can be 

6 made by the public. 

7 ‘‘(4) If an agency determines that a regulation 

8 is the best available method of achieving the regu9 latory objective, it shall design its regulations in the 

10 most cost-effective manner to achieve the regulatory 

11 objective. In doing so, each agency shall consider in12 centives for innovation, consistency, predictability, 

13 the costs of enforcement and compliance (to the gov14 ernment, regulated entities, and the public), flexi15 bility, distributive impacts, and equity. 

16 ‘‘(5) Each agency shall assess both the costs and 

17 the benefits of the intended regulation and, recog18 nizing that some costs and benefits are difficult to 

19 quantify, propose or adopt a regulation, unless ex20 pressly prohibited by law, only upon a reasoned de21 termination that the benefits of the intended regula22 tion justify its costs. 

23 ‘‘(6) Each agency shall base its decisions on the 

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1 nomic, and other information concerning the need for, 

2 and consequences of, the intended regulation. 

3 ‘‘(7) Each agency shall identify and assess alter4 native forms of regulation and shall, to the extent fea5 sible, specify performance objectives, rather than 

6 specifying the behavior or manner of compliance that 

7 regulated entities must adopt. 

8 ‘‘(8) Each agency shall avoid regulations that 

9 are inconsistent, incompatible, or duplicative with its 

10 other regulations or those of other Federal agencies. 

11 ‘‘(9) Each agency shall tailor its regulations to 

12 minimize the costs of the cumulative impact of regu13 lations. 

14 ‘‘(10) Each agency shall draft its regulations to 

15 be simple and easy to understand, with the goal of 

16 minimizing the potential for uncertainty and litiga17 tion arising from such uncertainty. 

18 ‘‘(b) REGULATORY ACTION DEFINED.—In this section, 

19 the term ‘regulatory action’ means any substantive action 

20 by an agency (normally published in the Federal Register) 

21 that promulgates or is expected to lead to the promulgation 

22 of a final rule or regulation, including advance notices of 

23 proposed rulemaking and notices of proposed rulemaking.’’. 


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1 SEC. 9. EXPANDING THE SCOPE OF STATEMENTS TO AC2 COMPANY SIGNIFICANT REGULATORY AC3 TIONS. 

4 (a) IN GENERAL.—Subsection (a) of section 202 of the 

5 Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) 

6 is amended to read as follows: 

7 ‘‘(a) IN GENERAL.—Unless otherwise expressly prohib8 ited by law, before promulgating any general notice of pro9 posed rulemaking or any final rule, or within six months 

10 after promulgating any final rule that was not preceded 

11 by a general notice of proposed rulemaking, if the proposed 

12 rulemaking or final rule includes a Federal mandate that 

13 may result in an annual effect on State, local, or tribal 

14 governments, or to the private sector, in the aggregate of 

15 $100,000,000 or more in any 1 year, the agency shall pre16 pare a written statement containing the following: 

17 ‘‘(1) The text of the draft proposed rulemaking or 

18 final rule, together with a reasonably detailed descrip19 tion of the need for the proposed rulemaking or final 

20 rule and an explanation of how the proposed rule21 making or final rule will meet that need. 

22 ‘‘(2) An assessment of the potential costs and 

23 benefits of the proposed rulemaking or final rule, in24 cluding an explanation of the manner in which the 

25 proposed rulemaking or final rule is consistent with 

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1 ference with State, local, and tribal governments in 

2 the exercise of their governmental functions. 

3 ‘‘(3) A qualitative and quantitative assessment, 

4 including the underlying analysis, of benefits antici5 pated from the proposed rulemaking or final rule 

6 (such as the promotion of the efficient functioning of 

7 the economy and private markets, the enhancement of 

8 health and safety, the protection of the natural envi9 ronment, and the elimination or reduction of dis10 crimination or bias). 

11 ‘‘(4) A qualitative and quantitative assessment, 

12 including the underlying analysis, of costs antici13 pated from the proposed rulemaking or final rule 

14 (such as the direct costs both to the Government in 

15 administering the final rule and to businesses and 

16 others in complying with the final rule, and any ad17 verse effects on the efficient functioning of the econ18 omy, private markets (including productivity, em19 ployment, and international competitiveness), health, 

20 safety, and the natural environment); 

21 ‘‘(5) Estimates by the agency, if and to the ex22 tent that the agency determines that accurate esti23 mates are reasonably feasible, of— 

24 ‘‘(A) the future compliance costs of the Fed25 eral mandate; and 


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1 ‘‘(B) any disproportionate budgetary effects 

2 of the Federal mandate upon any particular re3 gions of the nation or particular State, local, or 

4 tribal governments, urban or rural or other types 

5 of communities, or particular segments of the 

6 private sector. 

7 ‘‘(6)(A) A detailed description of the extent of the 

8 agency’s prior consultation with the private sector 

9 and elected representatives (under section 204) of the 

10 affected State, local, and tribal governments. 

11 ‘‘(B) A detailed summary of the comments and 

12 concerns that were presented by the private sector and 

13 State, local, or tribal governments either orally or in 

14 writing to the agency. 

15 ‘‘(C) A detailed summary of the agency’s evalua16 tion of those comments and concerns. 

17 ‘‘(7) A detailed summary of how the agency com18 plied with each of the regulatory principles described 

19 in section 201.’’. 

20 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sub21 section (b) of section 202 of such Act is amended by insert22 ing ‘‘detailed’’ before ‘‘summary’’. 

23 SEC. 10. ENHANCED STAKEHOLDER CONSULTATION. 

24 Section 204 of the Unfunded Mandates Reform Act of 

25 1995 (2 U.S.C. 1534) is amended— 


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1 (1) in the section heading, by inserting ‘‘AND

2 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

3 (2) in subsection (a)— 

4 (A) by inserting ‘‘, and impacted parties 

5 within the private sector (including small busi6 ness),’’ after ‘‘on their behalf)’’; 

7 (B) by striking ‘‘Federal intergovernmental 

8 mandates’’ and inserting ‘‘Federal mandates’’; 

9 and 

10 (3) by amending subsection (c) to read as fol11 lows: 

12 ‘‘(c) GUIDELINES.—For appropriate implementation 

13 of subsections (a) and (b) consistent with applicable laws 

14 and regulations, the following guidelines shall be followed: 

15 ‘‘(1) Consultations shall take place as early as 

16 possible, before issuance of a notice of proposed rule17 making, continue through the final rule stage, and be 

18 integrated explicitly into the rulemaking process. 

19 ‘‘(2) Agencies shall consult with a wide variety 

20 of State, local, and tribal officials and impacted par21 ties within the private sector (including small busi22 nesses). Geographic, political, and other factors that 

23 may differentiate varying points of view should be 

24 considered. 


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1 ‘‘(3) Agencies should estimate benefits and costs 

2 to assist with these consultations. The scope of the 

3 consultation should reflect the cost and significance of 

4 the Federal mandate being considered. 

5 ‘‘(4) Agencies shall, to the extent practicable— 

6 ‘‘(A) seek out the views of State, local, and 

7 tribal governments, and impacted parties within 

8 the private sector (including small business), on 

9 costs, benefits, and risks; and 

10 ‘‘(B) solicit ideas about alternative methods 

11 of compliance and potential flexibilities, and 

12 input on whether the Federal regulation will 

13 harmonize with and not duplicate similar laws 

14 in other levels of government. 

15 ‘‘(5) Consultations shall address the cumulative 

16 impact of regulations on the affected entities. 

17 ‘‘(6) Agencies may accept electronic submissions 

18 of comments by relevant parties but may not use 

19 those comments as the sole method of satisfying the 

20 guidelines in this subsection.’’. 

21 SEC. 11. NEW AUTHORITIES AND RESPONSIBILITIES FOR 

22 OFFICE OF INFORMATION AND REGULATORY 

23 AFFAIRS. 

24 Section 208 of the Unfunded Mandates Reform Act of 

25 1995 (2 U.S.C. 1538) is amended to read as follows: 


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1 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF2 FAIRS RESPONSIBILITIES. 

3 ‘‘(a) IN GENERAL.—The Administrator of the Office 

4 of Information and Regulatory Affairs shall provide mean5 ingful guidance and oversight so that each agency’s regula6 tions for which a written statement is required under sec7 tion 202 are consistent with the principles and require8 ments of this title, as well as other applicable laws, and 

9 do not conflict with the policies or actions of another agen10 cy. If the Administrator determines that an agency’s regula11 tions for which a written statement is required under sec12 tion 202 do not comply with such principles and require13 ments, are not consistent with other applicable laws, or con14 flict with the policies or actions of another agency, the Ad15 ministrator shall identify areas of non-compliance, notify 

16 the agency, and request that the agency comply before the 

17 agency finalizes the regulation concerned. 

18 ‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGENCY

19 COMPLIANCE.—The Director of the Office of Information 

20 and Regulatory Affairs annually shall submit to Congress, 

21 including the Committee on Homeland Security and Gov22 ernmental Affairs of the Senate and the Committee on Over23 sight and Government Reform of the House of Representa24 tives, a written report detailing compliance by each agency 

25 with the requirements of this title that relate to regulations 

26 for which a written statement is required by section 202, 


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1 including activities undertaken at the request of the Direc2 tor to improve compliance, during the preceding reporting 

3 period. The report shall also contain an appendix detailing 

4 compliance by each agency with section 204.’’. 

5 SEC. 12. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL 

6 REGULATIONS. 

7 The Unfunded Mandates Reform Act of 1995 (Public 

8 Law 104–4; 2 U.S.C. 1511 et seq.) is amended— 

9 (1) by redesignating section 209 as section 210; 

10 and 

11 (2) by inserting after section 208 the following 

12 new section 209: 

13 ‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FED14 ERAL REGULATIONS. 

15 ‘‘(a) REQUIREMENT.—At the request of the chairman 

16 or ranking minority member of a standing or select com17 mittee of the House of Representatives or the Senate, an 

18 agency shall conduct a retrospective analysis of an existing 

19 Federal regulation promulgated by an agency. 

20 ‘‘(b) REPORT.—Each agency conducting a retrospec21 tive analysis of existing Federal regulations pursuant to 

22 subsection (a) shall submit to the chairman of the relevant 

23 committee, Congress, and the Comptroller General a report 

24 containing, with respect to each Federal regulation covered 

25 by the analysis— 


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1 ‘‘(1) a copy of the Federal regulation; 

2 ‘‘(2) the continued need for the Federal regula3 tion; 

4 ‘‘(3) the nature of comments or complaints re5 ceived concerning the Federal regulation from the 

6 public since the Federal regulation was promulgated; 

7 ‘‘(4) the extent to which the Federal regulation 

8 overlaps, duplicates, or conflicts with other Federal 

9 regulations, and, to the extent feasible, with State and 

10 local governmental rules; 

11 ‘‘(5) the degree to which technology, economic 

12 conditions, or other factors have changed in the area 

13 affected by the Federal regulation; 

14 ‘‘(6) a complete analysis of the retrospective di15 rect costs and benefits of the Federal regulation that 

16 considers studies done outside the Federal Government 

17 (if any) estimating such costs or benefits; and 

18 ‘‘(7) any litigation history challenging the Fed19 eral regulation.’’. 

20 SEC. 13. EXPANSION OF JUDICIAL REVIEW. 

21 Section 401(a) of the Unfunded Mandates Reform Act 

22 of 1995 (2 U.S.C. 1571(a)) is amended— 

23 (1) in paragraphs (1) and (2)(A)— 

24 (A) by striking ‘‘sections 202 and 203(a)(1) 

25 and (2)’’ each place it appears and inserting 


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1 ‘‘sections 201, 202, 203(a)(1) and (2), and 

2 205(a) and (b)’’; and 

3 (B) by striking ‘‘only’’ each place it ap4 pears; 

5 (2) in paragraph (2)(B), by striking ‘‘section 

6 202’’ and all that follows through the period at the 

7 end and inserting the following: ‘‘section 202, prepare 

8 the written plan under section 203(a)(1) and (2), or 

9 comply with section 205(a) and (b), a court may 

10 compel the agency to prepare such written statement, 

11 prepare such written plan, or comply with such sec12 tion.’’; and 

13 (3) in paragraph (3), by striking ‘‘written state14 ment or plan is required’’ and all that follows 

15 through ‘‘shall not’’ and inserting the following: 

16 ‘‘written statement under section 202, a written plan 

17 under section 203(a)(1) and (2), or compliance with 

18 sections 201 and 205(a) and (b) is required, the inad19 equacy or failure to prepare such statement (includ20 ing the inadequacy or failure to prepare any esti21 mate, analysis, statement, or description), to prepare 

22 such written plan, or to comply with such section 

23 may’’. 


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Union Calendar No. 338 

112TH CONGRESS 

2D SESSION H. R. 373 

[Report No. 112–483, Part I] 

A BILL 

To amend the Unfunded Mandates Reform Act of 

purposes. agencies are subject to that Act, and for other 1995 to ensure that actions taken by regulatory 

MAY 16, 2012 

Reported from the Committee on Oversight and 

Government Reform with an amendment 

MAY 16, 2012 

The Committees on Rules, the Budget, and the Judiciary 

printed House on the State of the Union and ordered to be discharged; committed to the Committee of the Whole 


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