II 

116TH CONGRESS 

2D SESSION S. 4077 

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, and Mr. LANKFORD) 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 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 and Transparency Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

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

9 and costs of regulation. Effective regulatory proVerDate Sep 11 2014 05:50 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4077.IS S4077

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1 grams provide important benefits to the public, in2 cluding protecting the environment, worker safety, 

3 and human health. Regulations also impose signifi4 cant costs on individuals, employers, and State, 

5 local, and Tribal governments, diverting resources 

6 from other important priorities. 

7 (2) Better regulatory analysis and review 

8 should improve the quality of agency decisions, in9 creasing the benefits and reducing unwarranted 

10 costs of regulation. 

11 (3) Disclosure and scrutiny of key information 

12 underlying agency decisions should make the Fed13 eral Government more accountable to the public it 

14 serves. 

15 SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN 

16 RULES. 

17 The Unfunded Mandates Reform Act of 1995 (2 

18 U.S.C. 1501 et seq.) is amended— 

19 (1) by striking ‘‘tribal’’ each place that term 

20 appears and inserting ‘‘Tribal’’; 

21 (2) in section 3 (2 U.S.C. 1502)— 

22 (A) in paragraph (1), by striking ‘‘and’’ at 

23 the end; 

24 (B) in paragraph (2), by striking the pe25 riod at the end and inserting ‘‘and’’; and 


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1 (C) by adding at the end the following: 

2 ‘‘(3) the term ‘major rule’ means a rule, as de3 fined in section 551 of title 5, United States Code, 

4 that the Administrator of the Office of Information 

5 and Regulatory Affairs determines is likely to 

6 cause— 

7 ‘‘(A) an annual effect on the economy of 

8 $100,000,000 or more, adjusted once every 5 

9 years to reflect increases in the Consumer Price 

10 Index for All Urban Consumers, as published 

11 by the Bureau of Labor Statistics of the De12 partment of Labor; 

13 ‘‘(B) a major increase in costs or prices for 

14 consumers, individual industries, Federal, 

15 State, local, or Tribal government agencies, or 

16 geographic regions; or 

17 ‘‘(C) significant adverse effects on competi18 tion, employment, investment, productivity, in19 novation, public health and safety, or the ability 

20 of United States-based enterprises to compete 

21 with foreign-based enterprises in domestic and 

22 export markets.’’; and 

23 (3) in section 202 (2 U.S.C. 1532)— 

24 (A) by striking the section heading and in25 serting the following: 


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

2 RULES.’’; 

3 (B) by redesignating subsections (b) and 

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

5 (C) by striking subsection (a) and insert6 ing the following: 

7 ‘‘(a) DEFINITION OF COST.—In this section, the term 

8 ‘cost’ means the cost of compliance and any reasonably 

9 foreseeable indirect costs, including revenues lost, as a re10 sult of a major rule of an agency that is subject to this 

11 section. 

12 ‘‘(b) REGULATORY IMPACT ANALYSES.— 

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

14 proposed or final major rule, the agency promul15 gating the major rule shall prepare and publish in 

16 the Federal Register an initial and final regulatory 

17 impact analysis with respect to the major rule. 

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

19 An initial regulatory impact analysis required under 

20 paragraph (1) shall— 

21 ‘‘(A) accompany the notice of proposed 

22 rulemaking with respect to the major rule that 

23 is the subject of the analysis; and 

24 ‘‘(B) be open to public comment. 

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

26 A final regulatory impact analysis required under 


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1 paragraph (1) shall accompany the final major rule 

2 that is the subject of the analysis. 

3 ‘‘(c) CONTENT.—Each initial and final regulatory im4 pact analysis prepared and published under subsection (b) 

5 shall include, with respect to the major rule that is the 

6 subject of the analysis— 

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

8 and costs of the major rule, which shall be quan9 tified to the extent feasible; 

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

11 reasonable number of regulatory alternatives within 

12 the range of the discretion of the agency under the 

13 statute authorizing the major rule, including alter14 natives that— 

15 ‘‘(i) require no action by the Federal Gov16 ernment; and 

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

18 means to encourage the desired behavior; 

19 ‘‘(II) provide information based upon 

20 which the public can make choices; or 

21 ‘‘(III) employ other flexible regulatory op22 tions that permit the greatest flexibility in 

23 achieving the objectives of the statute author24 izing the major rule; and 


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1 ‘‘(C) an explanation of how the major rule com2 plies with the requirements of section 205; 

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

4 ‘‘(A) the costs to State, local, and Tribal 

5 governments may be paid with Federal financial 

6 assistance (or otherwise paid for by the Federal 

7 Government); and 

8 ‘‘(B) Federal resources are available to 

9 carry out the major rule; 

10 ‘‘(3) estimates of— 

11 ‘‘(A) any disproportionate budgetary ef12 fects of the major rule upon any particular— 

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

14 ‘‘(ii) State, local, or Tribal govern15 ments; 

16 ‘‘(iii) types of communities, including 

17 urban or rural communities; or 

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

19 and 

20 ‘‘(B) the effect of the major rule on job 

21 creation or job loss, which shall be quantified to 

22 the extent feasible; and 

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

24 consultation of the agency under section 204 with 


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1 elected representatives of each affected State, local, 

2 or Tribal government; 

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

4 that were presented to the agency orally or in writ5 ing by State, local, or Tribal governments; and 

6 ‘‘(C) a summary of the evaluation by the agen7 cy of the comments and concerns described in sub8 paragraph (B).’’; 

9 (D) in subsection (d), as so redesignated, 

10 by striking ‘‘a statement under subsection (a) is 

11 required, the agency shall include in the pro12 mulgation a summary of the information con13 tained in the statement’’ and inserting ‘‘an 

14 analysis under subsection (b) is required, the 

15 agency promulgating the major rule shall in16 clude in the promulgation a summary of the in17 formation contained in the analysis’’; and 

18 (E) in subsection (e), as so redesignated, 

19 by striking ‘‘any statement required under sub20 section (a) in conjunction with or as a part of 

21 any other statement or analysis, provided that 

22 the statement or analysis satisfies the provi23 sions of subsection (a)’’ and inserting ‘‘any 

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1 ment or analysis if the other statement or anal2 ysis satisfies the requirements of subsections 

3 (b) and (c)’’. 

4 SEC. 4. ENHANCED STAKEHOLDER CONSULTATION. 

5 Section 204 of the Unfunded Mandates Reform Act 

6 of 1995 (2 U.S.C. 1534) is amended— 

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

8 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

9 (2) in subsection (a)— 

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

11 within the private sector (including small busi12 nesses),’’ after ‘‘on their behalf)’’; and 

13 (B) by striking ‘‘Federal intergovernmental 

14 mandates’’ and inserting ‘‘Federal mandates’’; 

15 and 

16 (3) by amending subsection (c) to read as fol17 lows: 

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

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

20 and regulations, the following guidelines shall be followed: 

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

22 possible, before issuance of a notice of proposed rule23 making, continue through the final rule stage, and 

24 be integrated explicitly into the rulemaking process. 


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

2 of State, local, and Tribal officials and impacted 

3 parties within the private sector (including small 

4 businesses). Geographic, political, and other factors 

5 that may differentiate varying points of view should 

6 be considered. 

7 ‘‘(3) Agencies should estimate benefits and 

8 costs to assist with these consultations. The scope of 

9 the consultation should reflect the cost and signifi10 cance of the Federal mandate being considered. 

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

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

13 Tribal governments, and impacted parties with14 in the private sector (including small busi15 nesses), on costs, benefits, and risks; and 

16 ‘‘(B) solicit ideas about alternative meth17 ods of compliance and potential flexibilities, and 

18 input on whether the Federal regulation will 

19 harmonize with and not duplicate similar laws 

20 in other levels of government. 

21 ‘‘(5) Consultations shall address the cumulative 

22 impact of regulations on the affected entities. 

23 ‘‘(6) Agencies may accept electronic submis24 sions of comments by relevant parties but may not 


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1 use those comments as the sole method of satisfying 

2 the guidelines in this subsection.’’. 

3 SEC. 5. MAXIMIZE NET BENEFITS OR PROVIDE EXPLA4 NATION. 

5 Title II of the Unfunded Mandates Reform Act of 

6 1995 (2 U.S.C. 1531 et seq.) is amended by striking sec7 tion 205 (2 U.S.C. 1535) and inserting the following: 

8 ‘‘SEC. 205. MAXIMIZE NET BENEFITS. 

9 ‘‘(a) DEFINITION OF COST.—In this section, the term 

10 ‘cost’ has the meaning given the term in section 202(a). 

11 ‘‘(b) REQUIREMENT.—Before promulgating any pro12 posed or final major rule for which a regulatory impact 

13 analysis is required under section 202, an agency shall 

14 from the alternatives identified and considered under sec15 tion 202(c)(1)(B), select the alternative that maximizes 

16 net benefits, taking into consideration only the costs and 

17 benefits that arise within the scope of the statutory provi18 sion that authorizes the rulemaking. 

19 ‘‘(c) EXCEPTIONS.—An agency may adopt an alter20 native other than as required under subsection (b) only 

21 if— 

22 ‘‘(1) the Administrator of the Office of Infor23 mation and Regulatory Affairs approves the adop24 tion by the agency of the alternative; and 

25 ‘‘(2) the alternative is adopted to— 


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1 ‘‘(A) account for costs or benefits that can2 not be quantified, including costs or benefits re3 lated to constitutional or civil rights, provided 

4 that the agency identifies all such costs and 

5 benefits and explains why those costs and bene6 fits justify the adoption of the alternative; or 

7 ‘‘(B) achieve additional benefits or cost re8 ductions, provided that the agency— 

9 ‘‘(i) identifies— 

10 ‘‘(I) all such additional benefits 

11 and the associated costs of those ben12 efits; and 

13 ‘‘(II) all such cost reductions and 

14 the associated benefits of those cost 

15 reductions; and 

16 ‘‘(ii) explains why— 

17 ‘‘(I) the additional benefits jus18 tify the additional costs; or 

19 ‘‘(II) the additional cost reduc20 tions justify any benefits foregone.’’. 

21 SEC. 6. NEW AUTHORITIES AND RESPONSIBILITIES FOR OF22 FICE OF INFORMATION AND REGULATORY 

23 AFFAIRS. 

24 Section 208 of the Unfunded Mandates Reform Act 

25 of 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 (in this section re5 ferred to as the ‘Administrator’) shall provide meaningful 

6 guidance and oversight so that the major rules of an agen7 cy for which a regulatory impact analysis is required under 

8 section 202— 

9 ‘‘(1) are consistent with the principles and re10 quirements of this title, as well as other applicable 

11 laws; and 

12 ‘‘(2) and do not conflict with the policies or ac13 tions of another agency. 

14 ‘‘(b) NOTIFICATION.—If the Administrator deter15 mines that the major rules of an agency for which a regu16 latory impact analysis is required under section 202 do 

17 not comply with the principles and requirements of this 

18 title, are not consistent with other applicable laws, or con19 flict with the policies or actions of another agency, the 

20 Administrator shall— 

21 ‘‘(1) identify areas of noncompliance; 

22 ‘‘(2) notify the agency; and 

23 ‘‘(3) request that the agency comply before the 

24 agency finalizes the major rule concerned. 

25 ‘‘(c) ANNUAL STATEMENTS TO CONGRESS ON AGEN26 CY COMPLIANCE.—The Administrator shall submit to 


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1 Congress, including the Committee on Homeland Security 

2 and Governmental Affairs of the Senate and the Com3 mittee on Oversight and Reform of the House of Rep4 resentatives, an annual written report that, for the 1-year 

5 period preceding the report— 

6 ‘‘(1) details compliance by each agency with the 

7 requirements of this title that relate to major rules 

8 for which a regulatory impact analysis is required by 

9 section 202, including activities undertaken at the 

10 request of the Administrator to improve compliance; 

11 and 

12 ‘‘(2) contains an appendix detailing compliance 

13 by each agency with section 204.’’. 

14 SEC. 7. INITIATION OF RULEMAKING. 

15 The Unfunded Mandates Reform Act of 1995 (2 

16 U.S.C. 1501 et seq.) is amended— 

17 (1) by redesignating section 209 (2 U.S.C. 

18 1531 note) as section 210; and 

19 (2) by inserting after section 208 (2 U.S.C. 

20 1548) the following: 

21 ‘‘SEC. 209. INITIATION OF RULEMAKING FOR MAJOR RULES. 

22 ‘‘When an agency determines to initiate a rulemaking 

23 that may result in a major rule, the agency shall— 

24 ‘‘(1) establish an electronic docket for that rule25 making, which may have a physical counterpart; and 


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1 ‘‘(2) publish a notice of initiation of rulemaking 

2 in the Federal Register, which shall— 

3 ‘‘(A) briefly describe the subject and objec4 tives of, and the problem to be solved by, the 

5 major rule; 

6 ‘‘(B) refer to the legal authority under 

7 which the major rule would be proposed, includ8 ing the specific statutory provision that author9 izes the rulemaking; 

10 ‘‘(C) invite interested persons to propose 

11 alternatives and other ideas regarding how best 

12 to accomplish the objectives of the agency in 

13 the most effective manner; 

14 ‘‘(D) indicate how interested persons may 

15 submit written material for the docket; and 

16 ‘‘(E) appear in the Federal Register not 

17 later than 90 days before the date on which the 

18 agency publishes a notice of proposed rule19 making for the major rule.’’. 

20 SEC. 8. INCLUSION OF APPLICATION TO INDEPENDENT 

21 REGULATORY AGENCIES. 

22 (a) IN GENERAL.—Section 421(1) of the Congres23 sional Budget Act of 1974 (2 U.S.C. 658(1)) is amended 

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

25 agencies’’. 


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1 (b) EXEMPTION FOR MONETARY POLICY.—The Un2 funded Mandates Reform Act of 1995 (2 U.S.C. 1501 et 

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

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

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

6 that concern monetary policy proposed or implemented by 

7 the Board of Governors of the Federal Reserve System 

8 or the Federal Open Market Committee.’’. 

9 SEC. 9. JUDICIAL REVIEW. 

10 Title IV of the Unfunded Mandates Reform Act of 

11 1995 is amended by striking section 401 (2 U.S.C. 1571) 

12 and inserting the following: 

13 ‘‘SEC. 401. JUDICIAL REVIEW. 

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

15 final agency action in adopting a major rule that is subject 

16 to section 202 is entitled to judicial review of whether the 

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

18 with respect to the rule. 

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

20 United States Code, shall govern the scope of judicial re21 view under subsection (a). 

22 ‘‘(c) JURISDICTION.—Each court that has jurisdic23 tion to review a rule for compliance with section 553 of 

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


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

2 under subsection (a). 

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

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

5 that promulgated the major rule that is under review to 

6 take remedial action consistent with chapter 7 of title 5, 

7 United States Code.’’. 

8 SEC. 10. APPLYING SUBSTANTIVE POINT OF ORDER TO PRI9 VATE SECTOR MANDATES. 

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

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

12 (1) by striking ‘‘Federal intergovernmental 

13 mandates’’ and inserting ‘‘Federal mandates’’; and 

14 (2) by striking ‘‘section 424(a)(1)’’ and insert15 ing ‘‘subsection (a)(1) or (b)(1) of section 424’’. 

16 SEC. 11. EFFECTIVE DATE. 

17 Sections 3, 4, 5, and 7 of this Act and the amend18 ments made by those sections shall take effect on the date 

19 that is 120 days after the date of enactment of this Act. 

Æ 


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