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 referred 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. 

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’’. 


pamtmann on DSKBC07HB2PROD with BILLS
2 

•S 4077 RS

1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

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

4 and costs of regulation. Effective regulatory pro5 grams provide important benefits to the public, in6 cluding protecting the environment, worker safety, 

7 and human health. Regulations also impose signifi8 cant costs on individuals, employers, and State, 

9 local, and Tribal governments, diverting resources 

10 from other important priorities. 

11 (2) Better regulatory analysis and review 

12 should improve the quality of agency decisions, in13 creasing the benefits and reducing unwarranted 

14 costs of regulation. 

15 (3) Disclosure and scrutiny of key information 

16 underlying agency decisions should make the Fed17 eral Government more accountable to the public it 

18 serves. 

19 SEC. 3. REGULATORY IMPACT ANALYSES FOR CERTAIN 

20 RULES. 

21 The Unfunded Mandates Reform Act of 1995 (2 

22 U.S.C. 1501 et seq.) is amended— 

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

24 appears and inserting ‘‘Tribal’’; 

25 (2) in section 3 (2 U.S.C. 1502)— 


pamtmann on DSKBC07HB2PROD with BILLS
3 

•S 4077 RS

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

2 the end; 

3 (B) in paragraph (2), by striking the pe4 riod at the end and inserting ‘‘; and’’; and 

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

6 ‘‘(3) the term ‘major rule’ means a rule, as de7 fined in section 551 of title 5, United States Code, 

8 that the Administrator of the Office of Information 

9 and Regulatory Affairs determines is likely to 

10 cause— 

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

12 $100,000,000 or more, adjusted once every 5 

13 years to reflect increases in the Consumer Price 

14 Index for All Urban Consumers, as published 

15 by the Bureau of Labor Statistics of the De16 partment of Labor; 

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

18 consumers, individual industries, Federal, 

19 State, local, or Tribal government agencies, or 

20 geographic regions; or 

21 ‘‘(C) significant adverse effects on competi22 tion, employment, investment, productivity, in23 novation, public health and safety, or the ability 

24 of United States-based enterprises to compete 


pamtmann on DSKBC07HB2PROD with BILLS
4 

•S 4077 RS

1 with foreign-based enterprises in domestic and 

2 export markets.’’; and 

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

4 (A) by striking the section heading and in5 serting the following: 

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

7 RULES.’’; 

8 (B) by redesignating subsections (b) and 

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

10 (C) by striking subsection (a) and insert11 ing the following: 

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

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

14 foreseeable indirect costs, including revenues lost, as a re15 sult of a major rule of an agency that is subject to this 

16 section. 

17 ‘‘(b) REGULATORY IMPACT ANALYSES.— 

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

19 proposed or final major rule, the agency promul20 gating the major rule shall prepare and publish in 

21 the Federal Register an initial and final regulatory 

22 impact analysis with respect to the major rule. 

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

24 An initial regulatory impact analysis required under 

25 paragraph (1) shall— 


pamtmann on DSKBC07HB2PROD with BILLS
5 

•S 4077 RS

1 ‘‘(A) accompany the notice of proposed 

2 rulemaking with respect to the major rule that 

3 is the 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 major rule 

8 that is 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 major rule that is the 

12 subject of the analysis— 

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

14 and costs of the major rule, which shall be quan15 tified to 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 major rule, including alter20 natives 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; 


pamtmann on DSKBC07HB2PROD with BILLS
6 

•S 4077 RS

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 major rule; and 

7 ‘‘(C) an explanation of how the major rule com8 plies 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 major rule; 

16 ‘‘(3) estimates of— 

17 ‘‘(A) any disproportionate budgetary ef18 fects of the major 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 


pamtmann on DSKBC07HB2PROD with BILLS
7 

•S 4077 RS

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

2 creation or job loss, which shall be quantified to 

3 the extent 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 (D) in subsection (d), as so redesignated, 

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

16 required, the agency shall include in the pro17 mulgation a summary of the information con18 tained in the statement’’ and inserting ‘‘an 

19 analysis under subsection (b) is required, the 

20 agency promulgating the major rule shall in21 clude in the promulgation a summary of the in22 formation contained in the analysis’’; and 

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

24 by striking ‘‘any statement required under sub25 section (a) in conjunction with or as a part of 


pamtmann on DSKBC07HB2PROD with BILLS
8 

•S 4077 RS

1 any other statement or analysis, provided that 

2 the statement or analysis satisfies the provi3 sions of subsection (a)’’ and inserting ‘‘any 

4 analysis required under subsection (b) in con5 junction with, or as a part of, any other state6 ment or analysis if the other statement or anal7 ysis satisfies the requirements of subsections 

8 (b) and (c)’’. 

9 SEC. 4. ENHANCED STAKEHOLDER CONSULTATION. 

10 Section 204 of the Unfunded Mandates Reform Act 

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

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

13 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

14 (2) in subsection (a)— 

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

16 within the private sector (including small busi17 nesses),’’ after ‘‘on their behalf)’’; and 

18 (B) by striking ‘‘Federal intergovernmental 

19 mandates’’ and inserting ‘‘Federal mandates’’; 

20 and 

21 (3) by amending subsection (c) to read as fol22 lows: 

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

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

25 and regulations, the following guidelines shall be followed: 


pamtmann on DSKBC07HB2PROD with BILLS
9 

•S 4077 RS

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

2 possible, before issuance of a notice of proposed rule3 making, continue through the final rule stage, and 

4 be integrated explicitly into the rulemaking process. 

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

6 of State, local, and Tribal officials and impacted 

7 parties within the private sector (including small 

8 businesses). Geographic, political, and other factors 

9 that may differentiate varying points of view should 

10 be considered. 

11 ‘‘(3) Agencies should estimate benefits and 

12 costs to assist with these consultations. The scope of 

13 the consultation should reflect the cost and signifi14 cance of the Federal mandate being considered. 

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

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

17 Tribal governments, and impacted parties with18 in the private sector (including small busi19 nesses), on costs, benefits, and risks; and 

20 ‘‘(B) solicit ideas about alternative meth21 ods of compliance and potential flexibilities, and 

22 input on whether the Federal regulation will 

23 harmonize with and not duplicate similar laws 

24 in other levels of government. 


pamtmann on DSKBC07HB2PROD with BILLS
10 

•S 4077 RS

1 ‘‘(5) Consultations shall address the cumulative 

2 impact of regulations on the affected entities. 

3 ‘‘(6) Agencies may accept electronic submis4 sions of comments by relevant parties but may not 

5 use those comments as the sole method of satisfying 

6 the guidelines in this subsection.’’. 

7 SEC. 5. MAXIMIZE NET BENEFITS OR PROVIDE EXPLA8 NATION. 

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. MAXIMIZE NET BENEFITS. 

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

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

15 ‘‘(b) REQUIREMENT.—Before promulgating any pro16 posed or final major rule for which a regulatory impact 

17 analysis is required under section 202, an agency shall 

18 from the alternatives identified and considered under sec19 tion 202(c)(1)(B), select the alternative that maximizes 

20 net benefits, taking into consideration only the costs and 

21 benefits that arise within the scope of the statutory provi22 sion that authorizes the rulemaking. 

23 ‘‘(c) EXCEPTIONS.—An agency may adopt an alter24 native other than as required under subsection (b) only 

25 if— 


pamtmann on DSKBC07HB2PROD with BILLS
11 

•S 4077 RS

1 ‘‘(1) the Administrator of the Office of Infor2 mation and Regulatory Affairs approves the adop3 tion by the agency of the alternative; and 

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

5 ‘‘(A) account for costs or benefits that can6 not be quantified, including costs or benefits re7 lated to constitutional or civil rights, provided 

8 that the agency identifies all such costs and 

9 benefits and explains why those costs and bene10 fits justify the adoption of the alternative; or 

11 ‘‘(B) achieve additional benefits or cost re12 ductions, provided that the agency— 

13 ‘‘(i) identifies— 

14 ‘‘(I) all such additional benefits 

15 and the associated costs of those ben16 efits; and 

17 ‘‘(II) all such cost reductions and 

18 the associated benefits of those cost 

19 reductions; and 

20 ‘‘(ii) explains why— 

21 ‘‘(I) the additional benefits jus22 tify the additional costs; or 

23 ‘‘(II) the additional cost reduc24 tions justify any benefits foregone.’’. 


pamtmann on DSKBC07HB2PROD with BILLS
12 

•S 4077 RS

1 SEC. 6. NEW AUTHORITIES AND RESPONSIBILITIES FOR OF2 FICE OF INFORMATION AND REGULATORY 

3 AFFAIRS. 

4 Section 208 of the Unfunded Mandates Reform Act 

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

6 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF7 FAIRS RESPONSIBILITIES. 

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

9 of Information and Regulatory Affairs (in this section re10 ferred to as the ‘Administrator’) shall provide meaningful 

11 guidance and oversight so that the major rules of an agen12 cy for which a regulatory impact analysis is required under 

13 section 202— 

14 ‘‘(1) are consistent with the principles and re15 quirements of this title, as well as other applicable 

16 laws; and 

17 ‘‘(2) and do not conflict with the policies or ac18 tions of another agency. 

19 ‘‘(b) NOTIFICATION.—If the Administrator deter20 mines that the major rules of an agency for which a regu21 latory impact analysis is required under section 202 do 

22 not comply with the principles and requirements of this 

23 title, are not consistent with other applicable laws, or con24 flict with the policies or actions of another agency, the 

25 Administrator shall— 

26 ‘‘(1) identify areas of noncompliance; 


pamtmann on DSKBC07HB2PROD with BILLS
13 

•S 4077 RS

1 ‘‘(2) notify the agency; and 

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

3 agency finalizes the major rule concerned. 

4 ‘‘(c) ANNUAL STATEMENTS TO CONGRESS ON AGEN5 CY COMPLIANCE.—The Administrator shall submit to 

6 Congress, including the Committee on Homeland Security 

7 and Governmental Affairs of the Senate and the Com8 mittee on Oversight and Reform of the House of Rep9 resentatives, an annual written report that, for the 1-year 

10 period preceding the report— 

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

12 requirements of this title that relate to major rules 

13 for which a regulatory impact analysis is required by 

14 section 202, including activities undertaken at the 

15 request of the Administrator to improve compliance; 

16 and 

17 ‘‘(2) contains an appendix detailing compliance 

18 by each agency with section 204.’’. 

19 SEC. 7. INITIATION OF RULEMAKING. 

20 The Unfunded Mandates Reform Act of 1995 (2 

21 U.S.C. 1501 et seq.) is amended— 

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

23 1531 note) as section 210; and 

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

25 1548) the following: 


pamtmann on DSKBC07HB2PROD with BILLS
14 

•S 4077 RS

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

2 ‘‘When an agency determines to initiate a rulemaking 

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

4 ‘‘(1) establish an electronic docket for that rule5 making, which may have a physical counterpart; and 

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

7 in the Federal Register, which shall— 

8 ‘‘(A) briefly describe the subject and objec9 tives of, and the problem to be solved by, the 

10 major rule; 

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

12 which the major rule would be proposed, includ13 ing the specific statutory provision that author14 izes the rulemaking; 

15 ‘‘(C) invite interested persons to propose 

16 alternatives and other ideas regarding how best 

17 to accomplish the objectives of the agency in 

18 the most effective manner; 

19 ‘‘(D) indicate how interested persons may 

20 submit written material for the docket; and 

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

22 later than 90 days before the date on which the 

23 agency publishes a notice of proposed rule24 making for the major rule.’’. 


pamtmann on DSKBC07HB2PROD with BILLS
15 

•S 4077 RS

1 SEC. 8. 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. 9. 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 major rule that is subject 

22 to 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. 


pamtmann on DSKBC07HB2PROD with BILLS
16 

•S 4077 RS

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 major rule that is under review to 

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

13 United States Code.’’. 

14 SEC. 10. APPLYING SUBSTANTIVE POINT OF ORDER TO PRI15 VATE SECTOR MANDATES. 

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

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

18 (1) by striking ‘‘Federal intergovernmental 

19 mandates’’ and inserting ‘‘Federal mandates’’; and 

20 (2) by striking ‘‘section 424(a)(1)’’ and insert21 ing ‘‘subsection (a)(1) or (b)(1) of section 424’’. 

22 SEC. 11. EFFECTIVE DATE. 

23 Sections 3, 4, 5, and 7 of this Act and the amend24 ments made by those sections shall take effect on the date 

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


pamtmann on DSKBC07HB2PROD with BILLS

pamtmann on DSKBC07HB2PROD with BILLS
Calendar No. 643 

116TH CONGRESS 

2D SESSION S. 4077 

[Report No. 116–333] 

A BILL 

To amend the Unfunded Mandates Reform Act of 

for certain rules, and for other purposes. 1995 to provide for regulatory impact analyses 

DECEMBER 16, 2020 

Reported with an amendment 


pamtmann on DSKBC07HB2PROD with BILLS