II 

115TH CONGRESS 

1ST SESSION S. 1523 

To provide for additional safeguards with respect to imposing Federal 

mandates, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 10, 2017 

Mrs. FISCHER (for herself 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 provide for additional safeguards with respect to imposing 

Federal mandates, 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 Information and Transparency Act of 2017’’. 

6 SEC. 2. PURPOSE. 

7 The purposes of this Act are— 

8 (1) to improve the quality of the deliberations 

9 of Congress with respect to proposed Federal man10 dates by— 


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1 (A) providing Congress and the public with 

2 more complete information about the effects of 

3 such mandates; and 

4 (B) ensuring that Congress acts on such 

5 mandates only after focused deliberation on 

6 their effects; and 

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

8 public to identify Federal mandates that may impose 

9 undue harm on consumers, workers, employers, 

10 small businesses, private property owners, and State, 

11 local, and tribal governments. 

12 SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE 

13 STUDIES ON POLICIES INVOLVING CHANGES 

14 IN CONDITIONS OF GRANT AID. 

15 Section 202(g) of the Congressional Budget Act of 

16 1974 (2 U.S.C. 602(g)) is amended by adding at the end 

17 the following: 

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

19 any Chairman or ranking member of the minority of 

20 a Committee of the Senate or the House of Rep21 resentatives, the Director shall conduct an assess22 ment comparing the authorized level of funding in a 

23 bill or resolution to the prospective costs of carrying 

24 out any changes to a condition of Federal assistance 

25 being imposed on State, local, or tribal governments 


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1 participating in the Federal assistance program con2 cerned or, in the case of a bill or joint resolution 

3 that authorizes such sums as are necessary, an as4 sessment of an estimated level of funding compared 

5 to such costs.’’. 

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

7 REFLECT CONGRESSIONAL BUDGET OFFICE 

8 PRACTICE. 

9 Section 421(3) of the Congressional Budget Act of 

10 1974 (2 U.S.C. 658(3)) is amended— 

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

12 or’’ before ‘‘be required’’; and 

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

14 spend’’ the following: ‘‘or could forgo in profits, in15 cluding costs passed on to consumers or other enti16 ties taking into account, to the extent practicable, 

17 behavioral changes,’’. 

18 SEC. 5. EXPANDING THE SCOPE OF REPORTING REQUIRE19 MENTS TO INCLUDE REGULATIONS IMPOSED 

20 BY INDEPENDENT REGULATORY AGENCIES. 

21 Section 421(1) of the Congressional Budget Act of 

22 1974 (2 U.S.C. 658(1)) is amended by striking ‘‘, but does 

23 not include independent regulatory agencies’’ and insert24 ing ‘‘, except it does not include the Board of Governors 

25 of the Federal Reserve System, the Federal Open Market 


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1 Committee, or the Bureau of Consumer Financial Protec2 tion’’. 

3 SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGE4 MENT AND BUDGET WITH OFFICE OF INFOR5 MATION AND REGULATORY AFFAIRS. 

6 The Unfunded Mandates Reform Act of 1995 (2 

7 U.S.C. 1501 et seq.) is amended— 

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

9 (A) in the subsection heading, by striking 

10 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 

11 inserting ‘‘OFFICE OF INFORMATION AND REG12 ULATORY AFFAIRS’’; 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’’; 

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

18 (A) in the subsection heading, by striking 

19 ‘‘OMB’’; and 

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

21 Management and Budget’’ and inserting ‘‘Ad22 ministrator of the Office of Information and 

23 Regulatory Affairs’’; and 

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

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


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1 and inserting ‘‘Administrator of the Office of Infor2 mation and Regulatory Affairs’’. 

3 SEC. 7. APPLYING SUBSTANTIVE POINT OF ORDER TO PRI4 VATE SECTOR MANDATES. 

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

6 of 1974 (2 U.S.C. 658d(a)(2)) is amended, in the matter 

7 preceding subparagraph (A)— 

8 (1) by striking ‘‘Federal intergovernmental 

9 mandates’’ and inserting ‘‘Federal mandates’’; and 

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

11 424(a)(1)’’. 

12 SEC. 8. REGULATORY PROCESS AND PRINCIPLES. 

13 Section 201 of the Unfunded Mandates Reform Act 

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

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

16 ‘‘(a) IN GENERAL.—Each agency shall, unless other17 wise expressly prohibited by law, assess the effects of Fed18 eral regulatory actions on State, local, and tribal govern19 ments and the private sector (other than to the extent that 

20 such regulatory actions incorporate requirements specifi21 cally set forth in law) in accordance with the following 

22 principles: 

23 ‘‘(1) Each agency shall identify the problem 

24 that it intends to address (including, if applicable, 

25 the failures of private markets or public institutions 


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1 that warrant new agency action) as well as assess 

2 the significance of that problem. 

3 ‘‘(2) Each agency shall examine whether exist4 ing regulations (or other law) have created, or con5 tributed to, the problem that a new regulation is in6 tended to correct and whether those regulations (or 

7 other law) should be modified to achieve the in8 tended goal of regulation more effectively. 

9 ‘‘(3) Each agency shall identify and assess 

10 available alternatives to direct regulation, including 

11 providing economic incentives to encourage the de12 sired behavior, such as user fees or marketable per13 mits, or providing information upon which choices 

14 can be made by the public. 

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

16 is the best available method of achieving the regu17 latory objective, it shall design its regulations in the 

18 most cost-effective manner to achieve the regulatory 

19 objective. In doing so, each agency shall consider in20 centives for innovation, consistency, predictability, 

21 the costs of enforcement and compliance (to the gov22 ernment, regulated entities, and the public), flexi23 bility, distributive impacts, and equity. 

24 ‘‘(5) Each agency shall assess both the costs 

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1 ognizing that some costs and benefits are difficult to 

2 quantify, propose or adopt a regulation, unless ex3 pressly prohibited by law, only upon a reasoned de4 termination that the benefits of the intended regula5 tion justify its costs. 

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

7 best reasonably obtainable scientific, technical, eco8 nomic, and other information concerning the need 

9 for, and consequences of, the intended regulation. 

10 ‘‘(7) Each agency shall identify and assess al11 ternative forms of regulation and shall, to the extent 

12 feasible, specify performance objectives, rather than 

13 specifying the behavior or manner of compliance 

14 that regulated entities must adopt. 

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

16 are inconsistent, incompatible, or duplicative with its 

17 other regulations or those of other Federal agencies. 

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

19 minimize the costs of the cumulative impact of regu20 lations. 

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

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

23 minimizing the potential for uncertainty and litiga24 tion arising from such uncertainty. 


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1 ‘‘(b) REGULATORY ACTION DEFINED.—In this sec2 tion, the term ‘regulatory action’ means any substantive 

3 action by an agency (normally published in the Federal 

4 Register) that promulgates or is expected to lead to the 

5 promulgation of a final rule or regulation, including ad6 vance notices of proposed rulemaking and notices of pro7 posed rulemaking.’’. 

8 SEC. 9. EXPANDING THE SCOPE OF STATEMENTS TO AC9 COMPANY SIGNIFICANT REGULATORY AC10 TIONS. 

11 (a) IN GENERAL.—Section 202(a) of the Unfunded 

12 Mandates Reform Act of 1995 (2 U.S.C. 1532(a)) is 

13 amended to read as follows: 

14 ‘‘(a) IN GENERAL.—Unless otherwise expressly pro15 hibited by law, before promulgating any general notice of 

16 proposed rulemaking or any final rule, or within 6 months 

17 after promulgating any final rule that was not preceded 

18 by a general notice of proposed rulemaking, if the pro19 posed rulemaking or final rule includes a Federal mandate 

20 that may result in an annual effect on State, local, or trib21 al governments, or to the private sector, in the aggregate 

22 of $100,000,000 or more in any 1 year, the agency shall 

23 prepare a written statement containing the following: 

24 ‘‘(1) The text of the draft proposed rulemaking 

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1 scription of the need for the proposed rulemaking or 

2 final rule and an explanation of how the proposed 

3 rulemaking or final rule will meet that need. 

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

5 benefits of the proposed rulemaking or final rule, in6 cluding an explanation of the manner in which the 

7 proposed rulemaking or final rule is consistent with 

8 a statutory requirement and avoids undue inter9 ference with State, local, and tribal governments in 

10 the exercise of their governmental functions. 

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

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

14 (such as the promotion of the efficient functioning of 

15 the economy and private markets, the enhancement 

16 of health and safety, the protection of the natural 

17 environment, and the elimination or reduction of dis18 crimination or bias). 

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

20 including the underlying analysis, of costs antici21 pated from the proposed rulemaking or final rule 

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

23 administering the final rule and to businesses and 

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1 omy, private markets (including productivity, em2 ployment, and international competitiveness), health, 

3 safety, and the natural environment). 

4 ‘‘(5) Estimates by the agency, if and to the ex5 tent that the agency determines that accurate esti6 mates are reasonably feasible, of— 

7 ‘‘(A) the future compliance costs of the 

8 Federal mandate; and 

9 ‘‘(B) any disproportionate budgetary ef10 fects of the Federal mandate upon any par11 ticular regions of the United States or par12 ticular State, local, or tribal governments, 

13 urban or rural or other types of communities, 

14 or particular segments of the private sector. 

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

16 the agency’s prior consultation with the private sec17 tor and elected representatives under section 204 of 

18 the affected State, local, and tribal governments. 

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

20 concerns that were presented by the private sector 

21 and State, local, or tribal governments either orally 

22 or in writing to the agency. 

23 ‘‘(C) A detailed summary of the agency’s eval24 uation of those comments and concerns. 


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1 ‘‘(7) A detailed summary of how the agency 

2 complied with each of the regulatory principles de3 scribed in section 201. 

4 ‘‘(8) An assessment of the effects that the pro5 posed rulemaking or final rule are expected to have 

6 on private property owners, including the use and 

7 value of affected property.’’. 

8 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sec9 tion 202(b) of the Unfunded Mandates Reform Act of 

10 1995 (2 U.S.C. 1532(b)) is amended by inserting ‘‘de11 tailed’’ before ‘‘summary’’. 

12 SEC. 10. ENHANCED STAKEHOLDER CONSULTATION. 

13 Section 204 of the Unfunded Mandates Reform Act 

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

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

16 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

17 (2) in subsection (a)— 

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

19 within the private sector (including small busi20 ness),’’ after ‘‘on their behalf)’’; and 

21 (B) by striking ‘‘Federal intergovernmental 

22 mandates’’ and inserting ‘‘Federal mandates’’; 

23 and 

24 (3) by amending subsection (c) to read as fol25 lows: 


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

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

3 and regulations, the following guidelines shall be followed: 

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

5 possible, before issuance of a notice of proposed rule6 making, continue through the final rule stage, and 

7 be integrated explicitly into the rulemaking process. 

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

9 of State, local, and tribal officials and impacted par10 ties within the private sector (including small busi11 nesses). Geographic, political, and other factors that 

12 may differentiate varying points of view should be 

13 considered. 

14 ‘‘(3) Agencies should estimate benefits and 

15 costs to assist with these consultations. The scope of 

16 the consultation should reflect the cost and signifi17 cance of the Federal mandate being considered. 

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

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

20 tribal governments, and impacted parties within 

21 the private sector (including small business), on 

22 costs, benefits, and risks; and 

23 ‘‘(B) solicit ideas about alternative meth24 ods of compliance and potential flexibilities, and 

25 input on whether the Federal regulation will 


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1 harmonize with and not duplicate similar laws 

2 in other levels of government. 

3 ‘‘(5) Consultations shall address the cumulative 

4 impact of regulations on the affected entities. 

5 ‘‘(6) Agencies may accept electronic submis6 sions of comments by relevant parties but may not 

7 use those comments as the sole method of satisfying 

8 the guidelines in this subsection.’’. 

9 SEC. 11. NEW AUTHORITIES AND RESPONSIBILITIES FOR 

10 OFFICE OF INFORMATION AND REGULATORY 

11 AFFAIRS. 

12 Section 208 of the Unfunded Mandates Reform Act 

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

14 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF15 FAIRS RESPONSIBILITIES. 

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

17 of Information and Regulatory Affairs shall provide mean18 ingful guidance and oversight so that each agency’s regu19 lations for which a written statement is required under 

20 section 202 are consistent with the principles and require21 ments of this title, as well as other applicable laws, and 

22 do not conflict with the policies or actions of another agen23 cy. If the Administrator determines that an agency’s regu24 lations for which a written statement is required under 

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1 quirements, are not consistent with other applicable laws, 

2 or conflict with the policies or actions of another agency, 

3 the Administrator shall identify areas of non-compliance, 

4 notify the agency, and request that the agency comply be5 fore the agency finalizes the regulation concerned. 

6 ‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGEN7 CY COMPLIANCE.—The Administrator of the Office of In8 formation and Regulatory Affairs annually shall submit 

9 to Congress, including the Committee on Homeland Secu10 rity and Governmental Affairs of the Senate and the Com11 mittee on Oversight and Government Reform of the House 

12 of Representatives, a written report detailing compliance 

13 by each agency with the requirements of this title that 

14 relate to regulations for which a written statement is re15 quired by section 202, including activities undertaken at 

16 the request of the Director to improve compliance, during 

17 the preceding reporting period. The report shall also con18 tain an appendix detailing compliance by each agency with 

19 section 204.’’. 

20 SEC. 12. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL 

21 REGULATIONS. 

22 The Unfunded Mandates Reform Act of 1995 (2 

23 U.S.C. 1501 et seq.) is amended— 

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

25 and 


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1 (2) by inserting after section 208 the following: 

2 ‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FED3 ERAL REGULATIONS. 

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

5 or ranking minority member of a standing or select com6 mittee of the House of Representatives or the Senate, an 

7 agency shall conduct a retrospective analysis of an existing 

8 Federal regulation promulgated by an agency. 

9 ‘‘(b) REPORT.—Each agency conducting a retrospec10 tive analysis of existing Federal regulations pursuant to 

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

12 committee, Congress, and the Comptroller General of the 

13 United States a report containing, with respect to each 

14 Federal regulation covered by the analysis— 

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

16 ‘‘(2) the continued need for the Federal regula17 tion; 

18 ‘‘(3) the nature of comments or complaints re19 ceived concerning the Federal regulation from the 

20 public since the Federal regulation was promulgated; 

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

22 overlaps, duplicates, or conflicts with other Federal 

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

24 and local governmental rules; 


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

2 conditions, or other factors have changed in the area 

3 affected by the Federal regulation; 

4 ‘‘(6) a complete analysis of the retrospective di5 rect costs and benefits of the Federal regulation that 

6 considers studies done outside the Federal Govern7 ment (if any) estimating such costs or benefits; and 

8 ‘‘(7) any litigation history challenging the Fed9 eral regulation.’’. 

10 SEC. 13. EXPANSION OF JUDICIAL REVIEW. 

11 Section 401(a) of the Unfunded Mandates Reform 

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

13 (1) in paragraph (1)— 

14 (A) by striking ‘‘sections 202 and 

15 203(a)(1) and (2)’’ and inserting ‘‘sections 201, 

16 202, paragraphs (1) and (2) of section 203(a), 

17 and subsections (a) and (b) of section 205’’; 

18 and 

19 (B) by striking ‘‘only’’; 

20 (2) in paragraph (2)— 

21 (A) in subparagraph (A)— 

22 (i) by striking ‘‘sections 202 and 

23 203(a)(1) and (2)’’ and inserting ‘‘sections 

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1 tion 203(a), and subsections (a) and (b) of 

2 section 205’’; and 

3 (ii) by striking ‘‘only’’ each place that 

4 term appears; and 

5 (B) in subparagraph (B), by striking ‘‘sec6 tion 202’’ and all that follows through the pe7 riod at the end and inserting the following: 

8 ‘‘section 202, prepare the written plan under 

9 paragraphs (1) and (2) of section 203(a), or 

10 comply with subsections (a) and (b) of section 

11 205, a court may compel the agency to prepare 

12 such written statement, prepare such written 

13 plan, or comply with such subsections.’’; and 

14 (3) in paragraph (3), by striking ‘‘written state15 ment or plan is required’’ and all that follows 

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

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

18 under paragraphs (1) and (2) of section 203(a), or 

19 compliance with section 201 and subsections (a) and 

20 (b) of section 205 is required, the inadequacy or fail21 ure to prepare such statement (including the inad22 equacy or failure to prepare any estimate, analysis, 

23 statement, or description), to prepare such written 

24 plan, or to comply with such sections may’’. 

Æ 


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