19–006 

112TH CONGRESS REPT. 112–483 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

UNFUNDED MANDATES INFORMATION AND 

TRANSPARENCY ACT OF 2011 

MAY 16, 2012.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. ISSA, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 373] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 373) 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, having 

considered the same, report favorably thereon with an amendment 

and recommend that the bill as amended do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 6 

Section-by-Section .................................................................................................... 11 

Explanation of Amendments ................................................................................... 14 

Committee Consideration ........................................................................................ 14 

Roll Call Votes ......................................................................................................... 14 

Correspondence ........................................................................................................ 15 

Application of Law to the Legislative Branch ....................................................... 21 

Statement of Oversight Findings and Recommendations of the Committee ...... 21 

Statement of General Performance Goals and Objectives .................................... 21 

Federal Advisory Committee Act ............................................................................ 21 

Unfunded Mandate Statement ............................................................................... 21 

Earmark Identification ............................................................................................ 21 

Committee Estimate ................................................................................................ 21 

Budget Authority and Congressional Budget Office Cost Estimate .................... 22 

Changes in Existing Law Made by the Bill as Reported ...................................... 25 

Minority Views ......................................................................................................... 34 


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The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Unfunded Mandates Information 

and Transparency Act of 2011’’. 

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

SEC. 2. PURPOSE. 

The purpose of this Act is— 

(1) to improve the quality of the deliberations of Congress with respect to proposed Federal mandates by— 

(A) providing Congress and the public with more complete information 

about the effects of such mandates; and 

(B) ensuring that Congress acts on such mandates only after focused deliberation on their effects; and 

(2) to enhance the ability of Congress and the public to identify Federal mandates that may impose undue harm on consumers, workers, employers, small 

businesses, and State, local, and tribal governments. 

SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE STUDIES ON POLICIES INVOLVING 

CHANGES IN CONDITIONS OF GRANT AID. 

Section 202(g) of the Congressional Budget Act of 1974 (2 U.S.C. 602(g)) is amended by adding at the end the following new paragraph: 

‘‘(3) ADDITIONAL STUDIES.—At the request of any Chairman or ranking member of the minority of a Committee of the Senate or the House of Representatives, the Director shall conduct an assessment comparing the authorized level 

of funding in a bill or resolution to the prospective costs of carrying out any 

changes to a condition of Federal assistance being imposed on State, local, or 

tribal governments participating in the Federal assistance program concerned 

or, in the case of a bill or joint resolution that authorizes such sums as are necessary, an assessment of an estimated level of funding compared to such costs.’’. 

SEC. 4. CLARIFYING THE DEFINITION OF DIRECT COSTS TO REFLECT CONGRESSIONAL 

BUDGET OFFICE PRACTICE. 

Section 421(3) of the Congressional Budget Act of 1974 (2 U.S.C. 658(3)(A)(i)) is 

amended— 

(1) in subparagraph (A)(i), by inserting ‘‘incur or’’ before ‘‘be required’’; and 

(2) in subparagraph (B), by inserting after ‘‘to spend’’ the following: ‘‘or could 

forgo in profits, including costs passed on to consumers or other entities taking 

into account, to the extent practicable, behavioral changes,’’. 

SEC. 5. EXPANDING THE SCOPE OF REPORTING REQUIREMENTS TO INCLUDE REGULATIONS 

IMPOSED BY INDEPENDENT REGULATORY AGENCIES. 

Paragraph (1) of section 421 of the Congressional Budget Act of 1974 (2 U.S.C. 

658) is amended by striking ‘‘, but does not include independent regulatory agencies’’. 

SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGEMENT AND BUDGET WITH OFFICE OF 

INFORMATION AND REGULATORY AFFAIRS. 

The Unfunded Mandates Reform Act of 1995 (Public Law 104–4; 2 U.S.C. 1511 

et seq.) is amended— 

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

(A) in the subsection heading, by striking ‘‘OFFICE OF MANAGEMENT AND

BUDGET’’ and inserting ‘‘OFFICE OF INFORMATION AND REGULATORY AFFAIRS’’; and 


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(B) by striking ‘‘Director of the Office of Management and Budget’’ and 

inserting ‘‘Administrator of the Office of Information and Regulatory Affairs’’; 

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

(A) in the subsection heading, by striking ‘‘OMB’’; and 

(B) by striking ‘‘Director of the Office of Management and Budget’’ and 

inserting ‘‘Administrator of the Office of Information and Regulatory Affairs’’; and 

(3) in section 206 (2 U.S.C. 1536), by striking ‘‘Director of the Office of Management and Budget’’ and inserting ‘‘Administrator of the Office of Information 

and Regulatory Affairs’’. 

SEC. 7. APPLYING SUBSTANTIVE POINT OF ORDER TO PRIVATE SECTOR MANDATES. 

Section 425(a)(2) of the Congressional Budget Act of 1974 (2 U.S.C. 658d(a)(2)) is 

amended— 

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

mandates’’; and 

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

SEC. 8. REGULATORY PROCESS AND PRINCIPLES. 

Section 201 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) is 

amended to read as follows: 

‘‘SEC. 201. REGULATORY PROCESS AND PRINCIPLES. 

‘‘(a) IN GENERAL.—Each agency shall, unless otherwise expressly prohibited by 

law, assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector (other than to the extent that such regulatory actions incorporate requirements specifically set forth in law) in accordance with the 

following principles: 

‘‘(1) Each agency shall identify the problem that it intends to address (including, if applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem. 

‘‘(2) Each agency shall examine whether existing regulations (or other law) 

have created, or contributed to, the problem that a new regulation is intended 

to correct and whether those regulations (or other law) should be modified to 

achieve the intended goal of regulation more effectively. 

‘‘(3) Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon 

which choices can be made by the public. 

‘‘(4) If an agency determines that a regulation is the best available method 

of achieving the regulatory objective, it shall design its regulations in the most 

cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the costs 

of enforcement and compliance (to the government, regulated entities, and the 

public), flexibility, distributive impacts, and equity. 

‘‘(5) Each agency shall assess both the costs and the benefits of the intended 

regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation, unless expressly prohibited by law, only 

upon a reasoned determination that the benefits of the intended regulation justify its costs. 

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

scientific, technical, economic, and other information concerning the need for, 

and consequences of, the intended regulation. 

‘‘(7) Each agency shall identify and assess alternative forms of regulation and 

shall, to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt. 

‘‘(8) Each agency shall avoid regulations that are inconsistent, incompatible, 

or duplicative with its other regulations or those of other Federal agencies. 

‘‘(9) Each agency shall tailor its regulations to minimize the costs of the cumulative impact of regulations. 

‘‘(10) Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation 

arising from such uncertainty. 

‘‘(b) REGULATORY ACTION DEFINED.—In this section, the term ‘regulatory action’ 

means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or 

regulation, including advance notices of proposed rulemaking and notices of proposed rulemaking.’’. 


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SEC. 9. EXPANDING THE SCOPE OF STATEMENTS TO ACCOMPANY SIGNIFICANT REGULATORY 

ACTIONS. 

(a) IN GENERAL.—Subsection (a) of section 202 of the Unfunded Mandates Reform 

Act of 1995 (2 U.S.C. 1532) is amended to read as follows: 

‘‘(a) IN GENERAL.—Unless otherwise expressly prohibited by law, before promulgating any general notice of proposed rulemaking or any final rule, or within six 

months after promulgating any final rule that was not preceded by a general notice 

of proposed rulemaking, if the proposed rulemaking or final rule includes a Federal 

mandate that may result in an annual effect on State, local, or tribal governments, 

or to the private sector, in the aggregate of $100,000,000 or more in any 1 year, 

the agency shall prepare a written statement containing the following: 

‘‘(1) The text of the draft proposed rulemaking or final rule, together with a 

reasonably detailed description of the need for the proposed rulemaking or final 

rule and an explanation of how the proposed rulemaking or final rule will meet 

that need. 

‘‘(2) An assessment of the potential costs and benefits of the proposed rulemaking or final rule, including an explanation of the manner in which the proposed rulemaking or final rule is consistent with a statutory requirement and 

avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions. 

‘‘(3) A qualitative and quantitative assessment, including the underlying analysis, of benefits anticipated from the proposed rulemaking or final rule (such 

as the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias). 

‘‘(4) A qualitative and quantitative assessment, including the underlying analysis, of costs anticipated from the proposed rulemaking or final rule (such as 

the direct costs both to the Government in administering the final rule and to 

businesses and others in complying with the final rule, and any adverse effects 

on the efficient functioning of the economy, private markets (including productivity, employment, and international competitiveness), health, safety, and the 

natural environment); 

‘‘(5) Estimates by the agency, if and to the extent that the agency determines 

that accurate estimates are reasonably feasible, of— 

‘‘(A) the future compliance costs of the Federal mandate; and 

‘‘(B) any disproportionate budgetary effects of the Federal mandate upon 

any particular regions of the nation or particular State, local, or tribal governments, urban or rural or other types of communities, or particular segments of the private sector. 

‘‘(6)(A) A detailed description of the extent of the agency’s prior consultation 

with the private sector and elected representatives (under section 204) of the 

affected State, local, and tribal governments. 

‘‘(B) A detailed summary of the comments and concerns that were presented 

by the private sector and State, local, or tribal governments either orally or in 

writing to the agency. 

‘‘(C) A detailed summary of the agency’s evaluation of those comments and 

concerns. 

‘‘(7) A detailed summary of how the agency complied with each of the regulatory principles described in section 201.’’. 

(b) REQUIREMENT FOR DETAILED SUMMARY.—Subsection (b) of section 202 of such 

Act is amended by inserting ‘‘detailed’’ before ‘‘summary’’. 

SEC. 10. ENHANCED STAKEHOLDER CONSULTATION. 

Section 204 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1534) is 

amended— 

(1) in the section heading, by inserting ‘‘AND PRIVATE SECTOR’’ before 

‘‘INPUT’’; 

(2) in subsection (a)— 

(A) by inserting ‘‘, and impacted parties within the private sector (including small business),’’ after ‘‘on their behalf)’’; 

(B) by striking ‘‘Federal intergovernmental mandates’’ and inserting ‘‘Federal mandates’’; and 

(3) by amending subsection (c) to read as follows: 

‘‘(c) GUIDELINES.—For appropriate implementation of subsections (a) and (b) consistent with applicable laws and regulations, the following guidelines shall be followed: 

‘‘(1) Consultations shall take place as early as possible, before issuance of a 

notice of proposed rulemaking, continue through the final rule stage, and be integrated explicitly into the rulemaking process. 


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‘‘(2) Agencies shall consult with a wide variety of State, local, and tribal officials and impacted parties within the private sector (including small businesses). Geographic, political, and other factors that may differentiate varying 

points of view should be considered. 

‘‘(3) Agencies should estimate benefits and costs to assist with these consultations. The scope of the consultation should reflect the cost and significance of 

the Federal mandate being considered. 

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

‘‘(A) seek out the views of State, local, and tribal governments, and impacted parties within the private sector (including small business), on costs, 

benefits, and risks; and 

‘‘(B) solicit ideas about alternative methods of compliance and potential 

flexibilities, and input on whether the Federal regulation will harmonize 

with and not duplicate similar laws in other levels of government. 

‘‘(5) Consultations shall address the cumulative impact of regulations on the 

affected entities. 

‘‘(6) Agencies may accept electronic submissions of comments by relevant parties but may not use those comments as the sole method of satisfying the guidelines in this subsection.’’. 

SEC. 11. NEW AUTHORITIES AND RESPONSIBILITIES FOR OFFICE OF INFORMATION AND REGULATORY AFFAIRS. 

Section 208 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1538) is 

amended to read as follows: 

‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AFFAIRS RESPONSIBILITIES. 

‘‘(a) IN GENERAL.—The Administrator of the Office of Information and Regulatory 

Affairs shall provide meaningful guidance and oversight so that each agency’s regulations for which a written statement is required under section 202 are consistent 

with the principles and requirements of this title, as well as other applicable laws, 

and do not conflict with the policies or actions of another agency. If the Administrator determines that an agency’s regulations for which a written statement is required under section 202 do not comply with such principles and requirements, are 

not consistent with other applicable laws, or conflict with the policies or actions of 

another agency, the Administrator shall identify areas of non-compliance, notify the 

agency, and request that the agency comply before the agency finalizes the regulation concerned. 

‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLIANCE.—The Director 

of the Office of Information and Regulatory Affairs annually shall submit to Congress, including the Committee on Homeland Security and Governmental Affairs of 

the Senate and the Committee on Oversight and Government Reform of the House 

of Representatives, a written report detailing compliance by each agency with the 

requirements of this title that relate to regulations for which a written statement 

is required by section 202, including activities undertaken at the request of the Director to improve compliance, during the preceding reporting period. The report 

shall also contain an appendix detailing compliance by each agency with section 

204.’’. 

SEC. 12. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS. 

The Unfunded Mandates Reform Act of 1995 (Public Law 104–4; 2 U.S.C. 1511 

et seq.) is amended— 

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

(2) by inserting after section 208 the following new section 209: 

‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS. 

‘‘(a) REQUIREMENT.—At the request of the chairman or ranking minority member 

of a standing or select committee of the House of Representatives or the Senate, an 

agency shall conduct a retrospective analysis of an existing Federal regulation promulgated by an agency. 

‘‘(b) REPORT.—Each agency conducting a retrospective analysis of existing Federal 

regulations pursuant to subsection (a) shall submit to the chairman of the relevant 

committee, Congress, and the Comptroller General a report containing, with respect 

to each Federal regulation covered by the analysis— 

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

‘‘(2) the continued need for the Federal regulation; 

‘‘(3) the nature of comments or complaints received concerning the Federal 

regulation from the public since the Federal regulation was promulgated; 

‘‘(4) the extent to which the Federal regulation overlaps, duplicates, or conflicts with other Federal regulations, and, to the extent feasible, with State and 

local governmental rules; 


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1 2 U.S.C. 1501. 

2 CRS Report. 

‘‘(5) the degree to which technology, economic conditions, or other factors have 

changed in the area affected by the Federal regulation; 

‘‘(6) a complete analysis of the retrospective direct costs and benefits of the 

Federal regulation that considers studies done outside the Federal Government 

(if any) estimating such costs or benefits; and 

‘‘(7) any litigation history challenging the Federal regulation.’’. 

SEC. 13. EXPANSION OF JUDICIAL REVIEW. 

Section 401(a) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1571(a)) 

is amended— 

(1) in paragraphs (1) and (2)(A)— 

(A) by striking ‘‘sections 202 and 203(a)(1) and (2)’’ each place it appears 

and inserting ‘‘sections 201, 202, 203(a)(1) and (2), and 205(a) and (b)’’; and 

(B) by striking ‘‘only’’ each place it appears; 

(2) in paragraph (2)(B), by striking ‘‘section 202’’ and all that follows through 

the period at the end and inserting the following: ‘‘section 202, prepare the written plan under section 203(a)(1) and (2), or comply with section 205(a) and (b), 

a court may compel the agency to prepare such written statement, prepare such 

written plan, or comply with such section.’’; and 

(3) in paragraph (3), by striking ‘‘written statement or plan is required’’ and 

all that follows through ‘‘shall not’’ and inserting the following: ‘‘written statement under section 202, a written plan under section 203(a)(1) and (2), or compliance with sections 201 and 205(a) and (b) is required, the inadequacy or failure to prepare such statement (including the inadequacy or failure to prepare 

any estimate, analysis, statement, or description), to prepare such written plan, 

or to comply with such section may’’. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

The Unfunded Mandates Reform Act (UMRA) of 1995 was enacted to promote informed and deliberate decisions by Congress 

and Federal agencies concerning the appropriateness of Federal 

mandates and to ‘‘retain competitive balance between the public 

and private sectors.’’ 1 In accord with UMRA’s original intent, H.R. 

373, the Unfunded Mandates Information and Transparency Act of 

2011, aims to improve the quality of Congressional deliberations 

and to enhance the ability of Congress, Federal agencies, and the 

public to identify Federal mandates that may impose undue harm 

on State, local, and tribal governments and the private sector by 

providing more complete information about the cost of such mandates and by holding Congress and Federal agencies accountable 

for imposing unfunded mandates. 

BACKGROUND AND NEED FOR LEGISLATION

UMRA’s enactment was celebrated as a major legislative accomplishment that would relieve much of the burden placed upon nonfederal entities by Congress and Federal agencies through unfunded mandates.2 It has become apparent over time, however, 

that UMRA—despite its good intentions and noble purpose—failed 

to curtail substantially the imposition of unfunded mandates. The 

several loopholes, exemptions and exclusions embedded in the law 

are largely to blame. A 2005 Government Accountability Office 

(GAO) report found that ‘‘[m]ost parties from the state and local 

governments, Federal, business, and academic/think tank sectors 

vie[w] UMRA’s narrow coverage as a major weakness that leaves 

out many Federal actions with potentially significant financial imVerDate Mar 15 2010 01:20 May 18, 2012 Jkt 019006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR483P1.XXX HR483P1

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3Government Accountability Office (GAO), Unfunded Mandates: View Vary about Reform 

Act’s Strengths, Weaknesses, and Options for Improvement, GAO–05–454, Mar. 2005. 4GAO, Unfunded Mandates: Analysis of Reform Act Coverage, GAO–04–637 (May 12, 2004). 5 Id. 

6 Id. 

7 Unfunded Mandates and Regulatory Overreach: Hearing before the H. Subc. on Tech., Info. 

Policy, Intergov. Relations and Procurement Reform of the H. Comm. on Oversight and Govt. Reform, 112th Congress (2011) (statement of Rep. Gerald Connolly). 8 Unfunded Mandates and Regulatory Overreach: Hearing before the H. Subc. on Tech., Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. on Oversight and Govt. Reform, 112th Congress (2011) (statement of Ranking Member Elijah Cummings). 

pacts on nonfederal parties.’’ 3 GAO found that over half of the 

rules it reviewed did not trigger UMRA but did result in new costs 

or other negative financial impacts on nonfederal parties that those 

parties might perceive as unfunded mandates.4 Interviewed parties 

agreed that UMRA’s definitions, as well as exclusions and exemptions in the law that allow Congress and Federal agencies to continue to place burdens upon State, local and tribal governments 

and private sector entities should be revisited.5 Multiple parties 

also informed GAO that the consultation process between agencies 

and affected nonfederal entities concerning regulatory mandates 

was inconsistent and in need of improvement.6

In the 1st session of the 112th Congress, the Subcommittee on 

Technology, Information Policy, Intergovernmental Relations and 

Procurement Reform, chaired by Rep. James Lankford (R–OK), examined the effectiveness of UMRA via three hearings featuring recognized experts on unfunded mandates, as well as representatives 

of States, localities and the private sector. These witnesses highlighted UMRA’s narrow coverage, exemptions and loopholes as serious flaws, and suggested that legislative remedies to the UMRA 

statute would make it a more effective instrument to reduce unfunded legislative and regulatory mandates. On February 15, 2011, 

at a hearing entitled, ‘‘Unfunded Mandates and Regulatory Overreach,’’ the Subcommittee heard testimony from the former Office 

of Information and Regulatory Affairs (OIRA) Administrator Susan 

Dudley; GAO Director Denise Fantone; the Mayor of Edmond, 

Oklahoma, Patrice Douglas; and Fairfax County, Virginia, County 

Executive, Anthony Griffin. At the hearing, Subcommittee Ranking 

Minority Member Gerald Connolly (D-VA) recognized that UMRA 

‘‘did not fully stem the tide of unfunded mandates’’ because it was 

‘‘written in a manner that exempted bills that imposed significant 

costs on localities.’’ 7 Full Committee Ranking Minority Member 

Elijah Cummings (D-MD) asked the Mayor of Edmond, ‘‘What can 

the Federal Government do to help locals to plan better with regard to so-called unfunded mandates?’’ 8

On March 30, 2011, at a hearing entitled, ‘‘Unfunded Mandates 

and Regulatory Overreach Part II,’’ the Subcommittee heard testimony from South Dakota State Senator Joni Cutler; Small Business & Entrepreneurship Council Chief Economist Raymond 

Keating; and the Founder and CEO of the Small Business Majority, John Arensmeyer. These witnesses testified about the impact 

of unfunded mandates on states and small businesses and suggested possible reforms to UMRA. 

On May 25, 2011, at a hearing entitled, ‘‘Unfunded Mandates, 

Regulatory Burdens and the Role of the Office of Information and 

Regulatory Affairs,’’ the Subcommittee heard testimony from current OIRA Administrator Cass Sunstein about the Obama AdminVerDate Mar 15 2010 01:20 May 18, 2012 Jkt 019006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR483P1.XXX HR483P1

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9See CBO letter. 10 Unfunded Mandates and Regulatory Overreach Part II: Hearing Before the H. Subcomm. on 

Tech., Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. 

on Oversight and Govt. Reform, 112th Congress (2011) (testimony of Raymond Keating, Chief 

Economist, Small Business and Entrepreneurship Council). 

istration’s efforts to reform the regulatory system through executive order. This included what the Obama Administration views as 

an unprecedented ‘‘look back’’ at regulations to identify those that 

may be outdated, unnecessary, or duplicative, in order to pave the 

way for efforts to repeal, modify, or streamline them. Administrator 

Sunstein also testified about UMRA’s applicability to the public 

and the private sector. 

After a thorough examination of UMRA through these hearings, 

Subcommittee Chairman Lankford held a markup on September 

21, 2011, in the Subcommittee on Technology, Information Policy, 

Intergovernmental Relations and Procurement Reform, at which 

time H.R. 373 was reported with an amendment in the nature of 

a substitute. The bill was then reported from the full Oversight 

and Government Reform Committee, with another amendment in 

the nature of a substitute. 

H.R. 373, as amended, enhances UMRA’s utility as a tool to promote informed and deliberate decisions by Congress and Federal 

agencies concerning the appropriateness of Federal mandates. H.R. 

373 accomplishes this in multiple ways. To bring awareness to Federal mandates imposed on entities pursuant to a condition of grant 

aid, H.R. 373 allows a chairman or ranking member of any Congressional committee to request CBO conduct an assessment comparing the authorized level of funding in a bill or resolution to the 

prospective costs of carrying out any changes to a condition of Federal assistance being imposed on State, local, or tribal governments 

participating in the Federal assistance program. The National Conference of State Legislatures is among those entities advocating 

that more light be shed on the cost of implementing assistance programs such as No Child Left Behind programs and the Temporary 

Assistance for Needy Families Block Grant. Such programs impose 

significant costs on participating States, but are not considered unfunded mandates under UMRA. H.R. 373 does not expand the definition of what constitutes an unfunded mandate, but it does allow 

the cost of certain excluded programs to be assessed. This provision 

was crafted in consultation with the Congressional Budget Office 

(CBO), which advised the Committee on how best to provide information about conditions of grant aid without overburdening CBO.9

The Small Business and Entrepreneurship Council testified that 

regulatory costs impacting prices, risk-taking, economic growth and 

employment need to be considered in agency cost estimates.10 To 

address this concern, H.R. 373 amends the definition of ‘‘direct 

costs’’ in UMRA to ensure that Federal agencies are accounting in 

their UMRA analyses for such costs of Federal mandates as forgone 

business profits, costs passed onto consumers or other entities, and 

behavioral changes. CBO has stated that its own UMRA analyses 

already take these factors into account. 

To close one of UMRA’s loopholes, H.R. 373 subjects independent 

regulatory agencies to the statute. These agencies, such as the Consumer Financial Protection Bureau, the Securities Exchange Commission, the National Labor Relations Board, the Consumer ProdVerDate Mar 15 2010 01:20 May 18, 2012 Jkt 019006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR483P1.XXX HR483P1

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11 Unfunded Mandates and Regulatory Overreach: Hearing Before the H. Subcomm. on Tech., 

Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. on 

Oversight and Govt. Reform, 112th Congress (2011) (testimony of Susan Dudley, Director, GW 

Regulatory Studies). 12 Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 U. PA. L. REV. 1489 (2002). 13 U.S. General Accountability Office, Federal Rulemaking: Agencies Often Published Final Action Without Proposed Rules, August 31, 1998. 14 National Conference of State Legislatures, Policy Position on Federal Mandate Relief, effective through August 2011, available at http://www.ncsl.org/Default.aspx?TabID=773&tabs= 

855,20,632#FederalMandate. 15 U.S. Office of Mgmt. & Budget, Office of Information and Regulatory Affairs, 2008 Report 

to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, 

and Tribal Entities, January 2009. 16 U.S. Office of Mgmt. & Budget, Office of Information and Regulatory Affairs, 2009, 2010 

and 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded 

Mandates on State, Local, and Tribal Entities, 2009, 2010, 2011. 

uct Safety Commission, and the Federal Communications Commission, can currently impose significant costs and burdensome requirements with little meaningful accountability and oversight. 

In subcommittee testimony, former OIRA Administrator Dudley 

recommended that UMRA be aligned with Executive Order 12866. 

She opined that the analytical requirements of Executive Order 

12866 are a more effective mechanism for holding agencies accountable for the objectives expressed in UMRA.11 Moreover, OIRA 

Administrator Sunstein wrote in previous scholarship that executive orders are not ‘‘sufficient for real change,’’ and ‘‘a thoroughgoing reform effort would require legislative reforms, not merely 

executive action.’’ 12 To ensure that agencies regulate responsibly, 

H.R. 373 codifies most of those regulatory principles outlined in Executive Order 12866, and reaffirmed in Executive Order 13563. 

To close another loophole in UMRA, H.R. 373 no longer allows 

an agency to forgo UMRA analyses simply because the agency publishes a rule without first issuing a notice of proposed rulemaking. 

GAO has found that nearly half of final rules are not first published in the Federal Register as a notice of proposed rulemaking. 

This currently qualifies the rules for an automatic UMRA exemption.13

To put the private sector on equal footing with the public sector, 

H.R. 373 requires agencies to consult with regulated private sector 

entities during the development of significant Federal regulatory 

mandates. This consultation requirement now applies only with respect to State, local, and tribal governments. Existing OIRA guidelines on agency execution of this requirement are codified in H.R. 

373, and OIRA is required to include an Appendix detailing agency 

consultation activities with State, local, and tribal governments 

and the private sector in its annual report to Congress on agency 

compliance with UMRA. This will help remedy what the National 

Conference of State Legislatures has described as a ‘‘haphazard’’ 

consultation process.14 For example, OIRA formerly included in its 

annual report to Congress an Appendix providing examples of 

agency consultation with state and local governments.15 But in recent years it has ceased to provide any evidence concerning how 

consultation is being carried out.16 In response to a July 2011 inquiry from the Subcommittee, OIRA conceded it had unilaterally 

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17 Cass Sunstein email response to Chairman Lankford (July 22, 2011). 18 Unfunded Mandates and Regulatory Overreach: Hearing Before the H. Subcomm. on Tech., 

Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. on 

Oversight and Govt. Reform, 112th Congress (2011) (testimony of Susan Dudley, Director, GW 

Regulatory Studies). 19 Unfunded Mandates and Regulatory Overreach: Hearing Before the H. Subc. on Tech., Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. on Oversight and Govt. Reform, 112th Congress (2011) (testimony of Denise Fantone, Government Accountability Office). 20 Unfunded Mandates and Regulatory Overreach Part II: Hearing Before the H. Subc. on 

Tech., Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. 

on Oversight and Govt. Reform, 112th Congress (2011) (testimony of Raymond Keating, Chief 

Economist, Small Business and Entrepreneurship Council). 21See, Cass Sunstein, Memo for the Heads of Executive Departments and Agencies, and of 

Independent Regulatory Agencies re. Executive Order 13563, ‘‘Improving Regulation and Regulatory Review’’ (February 2, 2011). 22 Unfunded Mandates and Regulatory Overreach: Hearing Before the H. Subc. on Tech., Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. on Oversight and Govt. Reform, 112th Congress (2011) (testimony of Susan Dudley, Director, GW Regulatory Studies). 

stituted a failure to satisfy its current-law reporting requirements.17

To ensure that meaningful oversight over unfunded regulatory 

mandates is enabled and remains consistent with other regulatory 

oversight, H.R. 373 formally transfers responsibilities from the Director of the Office of Management and Budget (OMB) to the Administrator of the Office of Information and Regulatory Affairs 

(OIRA). OMB has long delegated its responsibilities under UMRA 

to OIRA.18 H.R. 373 would cement that relationship, while also extending OIRA’s role beyond certifying and reporting on agency regulatory actions. 

To ensure that agencies continue the ‘‘look back’’ process, H.R. 

373 also allows a chairman or ranking member of any congressional committee to request any agency conduct a retrospective 

analysis of an existing Federal regulatory mandate. This provision 

aims to educate Congress about the impact of a rule after it has 

been in effect. It will incentivize agencies to perform a proper analysis when first proposing regulations. In testimony before the Subcommittee, GAO testified that parties they interviewed advocated 

for an evaluation of existing rules to better assess the effectiveness 

of UMRA.19 The Small Business and Entrepreneurship Council’s 

testimony also supported an after-the-fact evaluation of the effectiveness and the true cost of existing regulations and mandates.20

President Obama himself has stated that each agency, ‘‘should periodically review its existing significant regulations to determine 

whether any such regulations should be modified, streamlined, expanded, or repealed to make the agency’s regulatory program more 

effective or less burdensome in achieving the regulatory objectives.’’ 21

To enhance accountability, H.R. 373 extends judicial review to 

the selection of the least costly/least burdensome regulatory alternative, and to the principles of Executive Order 12866. In her testimony, former OIRA Administrator Dudley advocated for expanding 

judicial review in this way to give agencies a greater incentive to 

carefully consider the ‘‘least costly, most cost-effective or least burdensome alternative’’ when regulating.22 Further, the Small Business and Entrepreneurship Council testified that the current judicial review provision included in UMRA ‘‘lacks teeth’’ and ‘‘offers no 

real incentives to challenge agencies or for agencies to deal more 


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23 Unfunded Mandates and Regulatory Overreach Part II: Hearing Before the H. Subc. on 

Tech., Information Policy, Intergovernmental Relations and Procurement Reform of the H. Comm. 

on Oversight and Govt. Reform, 112th Congress (2011) (testimony of Raymond Keating, Chief 

Economist, Small Business and Entrepreneurship Council). 24 Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 U. PA. L. REV. 1489 (2002). 

legitimately with UMRA requirements.’’ 23 Moreover, current OIRA 

Administrator Sunstein wrote in previous scholarship that materials generated under executive order should be subject to judicial 

review to the extent that they are relevant to an agency’s decision 

under the relevant statute. He noted this would only ‘‘slightly 

comprom[ise] the interests of the Executive in favor of the interests 

of the public as a whole.’’)24

In sum, H.R. 373 draws on the Subcommittee’s examination of 

UMRA and makes reforms addressing key deficiencies in the law 

identified by experts and regulated entities. 

LEGISLATIVE HISTORY

H.R. 373, the Unfunded Mandates Information and Transparency 

Act of 2011, was introduced on January 20, 2011, by Rep. Virginia 

Foxx (R–NC) and referred to the Committee on Oversight and Government Reform, and subsequently, the Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform. The bill was also referred to the Committee on 

Rules, the Committee on the Budget and the Committee on the Judiciary. On September 21, 2011, the Subcommittee on Technology, 

Information Policy, Intergovernmental Relations and Procurement 

Reform marked up H.R. 373. Chairman James Lankford (R–OK) offered an amendment in the nature of a substitute that was reported favorably by a voice vote. The bill, as amended, was agreed 

to by a recorded vote of 5 Ayes and 4 Nays. Voting Aye: Reps. 

James Lankford (R–OK), Mike Kelly (R–PA), Jason Chaffetz (R– 

UT), Raul Labrador (R–ID), and Patrick Meehan (R–PA). Voting 

Nay: Reps. Gerald Connolly (D–VA), Christopher Murphy (D–CT), 

Stephen Lynch (D–MA), and Elijah Cummings (D–MD). 

Prior to the 112th Congress, similar bills to H.R. 373 were introduced to reform UMRA. In the 110th Congress, Rep. Foxx introduced H.R. 6964, the Unfunded Mandates Information and Transparency Act of 2008, to subject more unfunded mandates to UMRA 

and enhance reporting requirements. In the 111th Congress, Representative Foxx and Representative Scott Garrett (R-NJ) introduced H.R. 2255, the Unfunded Mandates Information and Transparency Act of 2009, and H.R. 5818, the Mandate Prevention Act 

of 2010. H.R. 2255 was a reintroduction of H.R. 6964, and H.R. 

5818 allowed a point of order to be raised if a private sector mandate exceeded the UMRA threshold. 

SECTION-BY-SECTION

Section 1. Short title; Table of Contents 

States that the Act may be cited as the ‘‘Unfunded Mandates Information and Transparency Act of 2011.’’ 

Section 2. Purpose 

The purpose of this legislation is to improve the quality of deliberations of Congress with respect to Federal mandates and to enVerDate Mar 15 2010 01:20 May 18, 2012 Jkt 019006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR483P1.XXX HR483P1

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hance the ability of Congress and the public to identify Federal 

mandates that may impose undue harm on consumers, workers, 

employers, small businesses, and State, local, and tribal governments by providing Congress and the public more complete information about the cost of such mandates. 

Section 3. Providing for Congressional Budget Office studies on 

policies involving changes in conditions of grant aid 

This section allows a committee chairman or ranking member to 

request that the Congressional Budget Office (CBO) perform an assessment comparing the authorized level of funding in a bill or resolution to the prospective costs of carrying out any changes to a 

condition of Federal assistance being imposed on State, local, or 

tribal governments participating in the Federal assistance program 

concerned. 

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

This section amends the definition of ‘‘direct costs’’ to codify current CBO practice and ensures that Federal agencies account for 

the costs of Federal mandates, such as forgone business profits, 

costs passed onto consumers and other entities, and behavioral 

changes. 

Section 5: Expanding the scope of reporting requirements to include 

regulations imposed by independent regulatory agencies 

This section requires independent regulatory agencies to comply 

with UMRA. 

Section 6: Amendments to replace Office of Management and Budget with Office of Information and Regulatory Affairs 

This section transfers authorities from the Director of the Office 

of Management and Budget (OMB) to the Administrator of the Office of Information and Regulatory Affairs (OIRA) to ensure that 

agencies adhere to UMRA requirements. 

Section 7: Applying substantive point of order to private sector mandates 

This section allows a point of order to be raised if a private sector 

legislative mandate exceeds the UMRA threshold ($142 million). 

Section 8: Regulatory process and principles 

This section clarifies that agencies must conduct UMRA analyses 

unless a law ‘‘expressly’’ prohibits them from doing so. It also requires agencies to adhere to the principles of regulation from Section 1 of Executive Order 12866, reaffirmed in Executive Order 

13563, when conducting regulatory actions. The definition of ‘‘regulatory action’’ is added and defined as ‘‘any substantive action by 

an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule 

or regulation, including advance notices of proposed rulemaking 

and notices of proposed rulemaking.’’ 


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Section 9. Expanding the scope of statements to accompany significant regulatory actions 

This section requires Federal agencies to measure a proposed 

rule’s annual effect on the economy—not only ‘‘expenditures,’’ as is 

currently required. This language aligns UMRA with Executive 

Order 12866 and requires agencies to assess such costs imposed by 

regulatory mandates as forgone profits, costs passed onto consumers and other entities, and behavioral changes. 

It also closes the loophole allowing agencies to forgo UMRA analyses of a rule for which no notice of proposed rulemaking (NPRM) 

is issued. If no NPRM is issued, the agency must conduct an 

UMRA analysis before promulgating any final rule or within six 

months after promulgating a final rule. 

It also further aligns UMRA with Executive Order 12866 by removing the words ‘‘adjusted annually for inflation’’ when determining the threshold for UMRA analysis, and by adopting cost-benefit analysis requirements. 

It also requires that the descriptions and summaries an agency 

must complete under UMRA be ‘‘detailed.’’ 

Section 10. Enhanced stakeholder consultation 

This section extends to the private sector the current requirement that agencies receive meaningful and timely input in the development of regulatory mandates from state, local, and tribal governments. It also adopts guidelines, based on current OIRA policies, instructing agencies how to execute this requirement. 

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

This section gives OIRA oversight responsibility to determine 

whether agencies have drafted regulations consistent with the regulatory principles this bill adopts, and whether cost analyses performed are adequate. If OIRA determines the agency has not met 

these requirements, OIRA is to notify the agency and request compliance before a regulation is finalized. 

This section also requires agencies to include in their annual reports to Congress an appendix detailing their UMRA consultation 

activities with State, local, and tribal governments and the private 

sector. 

Section 12. Retrospective analysis of existing Federal regulations 

This section requires Federal agencies to conduct a retrospective 

analysis of an existing Federal regulation at the request of a committee chairman or ranking minority member. The retrospective 

analysis shall be submitted to the requesting member and to Congress. It is to include: a copy of the Federal regulation; the continued need for the Federal regulation; the nature and comments or 

complaints received concerning the Federal regulation; an explanation of the extent to which the mandate may duplicate another 

Federal regulation; a description of the degree to which technology 

or economic conditions have changed in the area affecting the 

Federal regulation; an analysis of the retrospective costs and benefits of the Federal regulation that considers studies done outside 

the government; and a history of legal challenges to the Federal 

regulation. 


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Section 13. Expansion of Judicial Review 

This section extends judicial review to the selection of the least 

costly/least burdensome alternative to a regulatory mandate. It 

also permits a court to stay, enjoin, or invalidate a rule if an agency fails to complete the required UMRA analysis or to adhere to the 

regulatory principles. 

EXPLANATION OF AMENDMENTS

Rep. Lankford offered an amendment in the nature of a substitute, which is described in the forgoing section of this report. 

The amendment was agreed to by voice vote. 

COMMITTEE CONSIDERATION

On November 17, 2011, the Committee met in open session and 

ordered reported favorably the bill, H.R. 373, as amended, by recorded vote of 22 Ayes to 12 Nays, a quorum being present. 

ROLL CALL VOTES

1. Mr. Cummings offered an amendment to the Lankford ANS 

regarding consultation with private parties. The amendment was 

defeated by a recorded vote of 10 Ayes to 22 Nays. 

Voting Aye: Cummings, Kucinich, Tierney, Clay, Lynch, Cooper, 

Connolly, Welch, Murphy and Speier. 

Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, 

Labrador, Meehan, DesJarlais, Gowdy, Ross, Guinta, Farenthold 

and Kelly. 

2. The bill, H.R. 373, as amended, was ordered favorably reported to the House, a quorum being present, by a recorded vote 

of 22 Ayes to 12 Nays. 

Voting Aye: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, 

Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, Meehan, DesJarlais, Gowdy, Ross, Guinta, Farenthold and 

Kelly. 

Voting Nay: Cummings, Maloney, Kucinich, Tierney, Clay, 

Lynch, Cooper, Connolly, Davis, Welch, Murphy and Speier. 


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APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill enhances UMRA’s utility 

as a tool to promote informed and deliberate decisions by Congress 

and Federal agencies concerning the appropriateness of Federal 

mandates. As such this bill does not relate to employment or access 

to public services and accommodations. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement as to whether the 

provisions of the reported bill include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

H.R. 373 does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out H.R. 373. 

However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report 

a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act. 


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25The intergovernmental and private-sector thresholds established in UMRA were $50 million 

and $100 million, respectively in 1996, adjusted annually for inflation. In 2012, the thresholds 

are $73 million for intergovernmental mandates and $146 million for private-sector mandates. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 

Committee has received the following cost estimate for H.R. 373 

from the Director of Congressional Budget Office: 

MARCH 28, 2012. 

Hon. DARRELL ISSA, 

Chairman, Committee on Oversight and Government Reform, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Lisa Ramirez-Branum. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 373—Unfunded Mandates Information and Transparency Act 

of 2011 

Summary: H.R. 373 would amend the Unfunded Mandates Reform Act of 1995 (UMRA) to increase the information available to 

the Congress and the public with respect to federal mandates contained in proposed legislation and federal regulations. Enacting 

this legislation would codify in UMRA many practices currently required of most federal agencies when analyzing the impacts of regulations. The bill also would require independent regulatory agencies to perform broad analyses (including costs and benefits) of regulations by requiring those agencies to comply with standards established in UMRA relating to the rule making process. 

The legislation would amend the Congressional Budget Act to establish a point of order, which a Member of Congress may raise, 

against legislation that creates a private-sector mandate with costs 

above the threshold established in UMRA.25 In addition, the legislation would require CBO to conduct assessments of costs to state, 

local, and tribal governments resulting from any changes to conditions of certain federal assistance programs. 

CBO estimates that the new requirements placed on independent 

regulatory agencies, such as the Federal Reserve and the Federal 

Deposit Insurance Corporation (FDIC), would require additional resources to carry out. Net spending by the Federal Reserve is recorded in the federal budget as a change in revenues, and expenses 

of the FDIC are classified as direct spending; therefore, pay-as-yougo procedures apply. CBO estimates that enacting the legislation 

would decrease revenues by $1 million in 2014 and $9 million over 

the 2013–2022 period. CBO estimates that enacting H.R. 373 


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would result in no net effect on direct spending over the 2014–2022 

period because costs incurred by the FDIC would be offset by premiums collected from insured depository institutions. Assuming the 

appropriation of necessary amounts, the legislation also would have 

a discretionary cost of $1 million in 2014 and $9 million over the 

2014–2022 period, CBO estimates. 

CBO expects that several independent agencies would increase 

fees to offset the costs of implementing the additional regulatory 

activities required by the bill; thus, H.R. 373 would increase the 

costs of existing mandates on public and private-sector entities that 

would be required to pay those fees. Based on information from the 

affected agencies, CBO estimates that the additional costs of those 

mandates would be small and would fall well below the annual 

thresholds for intergovernmental and private-sector mandates established in UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 373 is shown in the following table. The costs 

of this legislation fall within budget function 370 (advancement of 

commerce), and other budget functions that contain spending for 

salaries and expenses. 

By fiscal year, in millions of dollars— 

2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2012– 

2017 

2012– 

2022 

CHANGES IN REVENUES 

Estimated Revenues a 0 * ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥1 ¥4 ¥9 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level .............. 0 * 1 1 1 1 1 1 1 1 1 4 9 

Estimated Outlays .... 0 * 1 1 1 1 1 1 1 1 1 4 9 

Notes: * = less than $500,000. 

CBO estimates that enacting H.R. 373 would result in direct spending costs that total less than $500,000 annually. Because we expect 

premiums to increase to cover those costs, on net, over the 2013–2017 and the 2013–22 periods, we estimate that total direct spending 

costs would not be significant. a For revenues, positive numbers indicate a decrease in the deficit and negative numbers indicate an increase in the deficit. 

Basis of estimate: For this estimate, CBO assumes that the legislation will be enacted by the end of 2012, that fees and premiums 

will be levied to cover the additional administrative costs incurred 

by some regulatory agencies, that the necessary amounts will be 

appropriated near the start of each fiscal year, and that spending 

patterns will follow historical patterns for regulatory analysis activities. 

H.R. 373 would amend UMRA to codify certain practices currently required under several executive orders, including Executive 

Orders 12866 and 13563. (Those instructions require agencies in 

the executive branch to analyze the impacts of regulations on state, 

local, and tribal governments and the private sector. For significant 

rules with an estimated annual effect on the economy of $100 million or more, agencies must prepare detailed cost-benefit analyses.) 

The legislation also would codify Executive Order 13579 and remove a provision in current law that exempts independent regulatory agencies, such as the Federal Reserve and the FDIC, from 

complying with standards established in UMRA relating to the 

rulemaking process. Based on information from several agencies, 

CBO expects that the new requirements would increase the workload of independent regulatory agencies, requiring them to devote 


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more resources to prepare broader analyses of regulations and to 

support judicial reviews and hearings pertaining to agency regulations. 

Direct spending and revenues 

Based on information from the Federal Reserve, CBO expects 

that it would hire additional staff in order to comply with H.R. 373, 

which would increase operating costs and decrease net earnings. 

Net earnings of the Federal Reserve are remitted to the Treasury 

and recorded in the federal budget as revenues. In total, CBO estimates that the legislation would decrease revenues by $1 million 

in 2014 and by $9 million over the 2013–2022 period. 

CBO also estimates that the FDIC would incur additional costs 

totaling less than $500,000 annually to implement H.R. 373. FDIC 

has the authority to collect premiums from insured depository institutions to support administrative expenses; therefore, CBO estimates that those increased costs would be offset over the 2013– 

2017 and 2013–2022 periods. 

Spending subject to appropriation 

To meet the regulatory standards established in H.R. 373, CBO 

estimates that at least 12 independent regulatory agencies would 

face an increased workload and would eventually incur costs of $1 

million annually. We expect that it would take two years to reach 

that level of effort, resulting in gross costs of $43 million over the 

2013–2022 period. Under current law, four of those agencies, the 

Federal Energy Regulatory Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, and the 

Securities and Exchange Commission, are authorized to collect fees 

sufficient to offset their appropriation each year. CBO assumes 

that future appropriations would direct agencies to exercise that 

authority. Thus, CBO estimates that implementing the bill would 

have a net discretionary cost of $1 million in 2014 and $9 million 

over the 2013–2022 period, subject to the availability of appropriated funds. 

Finally, H.R. 373 would require CBO, at the request of any 

Chairman or Ranking Minority Member of a committee, to conduct 

an assessment of costs to state, local, and tribal governments resulting from any changes to conditions of federal assistance programs. CBO estimates that the costs to conduct such assessments 

would not be significant. 

Pay-As-You-Go considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget-reporting and enforcement procedures 

for legislation affecting direct spending or revenues. The net 

changes in the deficit from changes in revenues that are subject to 

those pay-as-you-go procedures are shown in the following table. 


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CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 373, AS ORDERED REPORTED BY THE 

HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM ON NOVEMBER 17, 2011 

By fiscal year, in millions of dollars— 

2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2012– 

2017 

2012– 

2022 

NET INCREASE OR DECREASE (¥) IN THE DEFICIT 

Statutory Pay-As-YouGo Impact ............. 0 0 1 1 1 1 1 1 1 1 1 4 9 

Intergovernmental and private-sector impact: H.R. 373 would increase the costs of existing mandates on public and private entities 

that are required to pay fees assessed by certain independent agencies. The bill would expand the scope of analyses that independent 

agencies are required to conduct when they issue regulations. Some 

of those independent agencies are authorized to collect fees sufficient to offset the cost of their regulatory activities. Because we expect some of those agencies to increase fees to offset the costs of 

their additional regulatory activities, the bill would increase the 

costs of existing mandates by requiring public and private entities 

to pay higher fees. Based on information from the independent 

agencies, the cost of implementing the additional regulatory activities would not be significant. Therefore, CBO estimates that any 

additional costs would be small and would fall well below the annual thresholds established in UMRA for intergovernmental and 

private-sector mandates ($73 million and $146 million in 2012 respectively, adjusted annually for inflation). 

Estimate prepared by: Federal costs: Barbara Edwards, Daniel 

Hoople, Marin Randall, Lisa Ramirez-Branum, and Susan Willie; 

Impact on state, local, and tribal governments: Elizabeth Cove 

Delisle; Impact on the private sector: Marin Randall. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

CONGRESSIONAL BUDGET ACT OF 1974 

* * * * * * * 

TITLE II—CONGRESSIONAL BUDGET OFFICE 

* * * * * * * 

DUTIES AND FUNCTIONS

SEC. 202. (a) * * * 

* * * * * * * 

(g) STUDIES.— (1) * * * 

* * * * * * * 


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(3) ADDITIONAL STUDIES.—At the request of any Chairman or 

ranking member of the minority of a Committee of the Senate 

or the House of Representatives, the Director shall conduct an 

assessment comparing the authorized level of funding in a bill 

or resolution to the prospective costs of carrying out any 

changes to a condition of Federal assistance being imposed on 

State, local, or tribal governments participating in the Federal 

assistance program concerned or, in the case of a bill or joint 

resolution that authorizes such sums as are necessary, an assessment of an estimated level of funding compared to such 

costs. 

* * * * * * * 

TITLE IV—ADDITIONAL PROVISIONS TO IMPROVE FISCAL 

PROCEDURES 

* * * * * * * 

PART B—FEDERAL MANDATES

SEC. 421. DEFINITIONS. 

For purposes of this part: 

(1) AGENCY.—The term ‘‘agency’’ has the same meaning as 

defined in section 551(1) of title 5, United States Codeø, but 

does not include independent regulatory agencies¿. 

* * * * * * * 

(3) DIRECT COSTS.—The term ‘‘direct costs’’— 

(A)(i) in the case of a Federal intergovernmental mandate, means the aggregate estimated amounts that all 

State, local, and tribal governments would incur or be required to spend or would be prohibited from raising in revenues in order to comply with the Federal intergovernmental mandate; or 

* * * * * * * 

(B) in the case of a Federal private sector mandate, 

means the aggregate estimated amounts that the private 

sector will be required to spend or could forgo in profits, 

including costs passed on to consumers or other entities 

taking into account, to the extent practicable, behavioral 

changes, in order to comply with the Federal private sector 

mandate; 

* * * * * * * 

SEC. 425. LEGISLATION SUBJECT TO POINT OF ORDER. 

(a) IN GENERAL.—It shall not be in order in the Senate or the 

House of Representatives to consider— 

(1) * * * 

(2) any bill, joint resolution, amendment, motion, or conference report that would increase the direct costs of øFederal 

intergovernmental mandates¿ Federal mandates by an amount 

that causes the thresholds specified in section 424(a)(1) or 

424(b)(1) to be exceeded, unless— 


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(A) * * * 

* * * * * * * 

UNFUNDED MANDATES REFORM ACT OF 1995 

* * * * * * * 

TITLE I—LEGISLATIVE 

ACCOUNTABILITY AND REFORM 

* * * * * * * 

SEC. 103. COST OF REGULATIONS. 

(a) * * * 

* * * * * * * 

(c) COOPERATION OF øOFFICE OF MANAGEMENT AND BUDGET¿ OFFICE OF INFORMATION AND REGULATORY AFFAIRS.—At the request 

of the Director of the Congressional Budget Office, the øDirector of 

the Office of Management and Budget¿ Administrator of the Office 

of Information and Regulatory Affairs shall provide data and cost 

estimates for regulations implementing an Act containing a Federal 

mandate covered by part B of title IV of the Congressional Budget 

and Impoundment Control Act of 1974 (as added by section 101 of 

this Act). 

* * * * * * * 

TITLE II—REGULATORY 

ACCOUNTABILITY AND REFORM 

øSEC. 201. REGULATORY PROCESS. 

øEach agency shall, unless otherwise prohibited by law, assess 

the effects of Federal regulatory actions on State, local, and tribal 

governments, and the private sector (other than to the extent that 

such regulations incorporate requirements specifically set forth in 

law).¿ 

SEC. 201. REGULATORY PROCESS AND PRINCIPLES. 

(a) IN GENERAL.—Each agency shall, unless otherwise expressly 

prohibited by law, assess the effects of Federal regulatory actions on 

State, local, and tribal governments and the private sector (other 

than to the extent that such regulatory actions incorporate requirements specifically set forth in law) in accordance with the following 

principles: 

(1) Each agency shall identify the problem that it intends to 

address (including, if applicable, the failures of private markets 

or public institutions that warrant new agency action) as well 

as assess the significance of that problem. 

(2) Each agency shall examine whether existing regulations 

(or other law) have created, or contributed to, the problem that 

a new regulation is intended to correct and whether those regulations (or other law) should be modified to achieve the intended goal of regulation more effectively. 


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(3) Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or 

marketable permits, or providing information upon which 

choices can be made by the public. 

(4) If an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve 

the regulatory objective. In doing so, each agency shall consider 

incentives for innovation, consistency, predictability, the costs of 

enforcement and compliance (to the government, regulated entities, and the public), flexibility, distributive impacts, and equity. 

(5) Each agency shall assess both the costs and the benefits 

of the intended regulation and, recognizing that some costs and 

benefits are difficult to quantify, propose or adopt a regulation, 

unless expressly prohibited by law, only upon a reasoned determination that the benefits of the intended regulation justify its 

costs. 

(6) Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation. 

(7) Each agency shall identify and assess alternative forms of 

regulation and shall, to the extent feasible, specify performance 

objectives, rather than specifying the behavior or manner of 

compliance that regulated entities must adopt. 

(8) Each agency shall avoid regulations that are inconsistent, 

incompatible, or duplicative with its other regulations or those 

of other Federal agencies. 

(9) Each agency shall tailor its regulations to minimize the 

costs of the cumulative impact of regulations. 

(10) Each agency shall draft its regulations to be simple and 

easy to understand, with the goal of minimizing the potential 

for uncertainty and litigation arising from such uncertainty. 

(b) REGULATORY ACTION DEFINED.—In this section, the term ‘‘regulatory action’’ means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including advance notices of proposed rulemaking and notices of proposed rulemaking. 

SEC. 202. STATEMENTS TO ACCOMPANY SIGNIFICANT REGULATORY 

ACTIONS. 

ø(a) IN GENERAL.—Unless otherwise prohibited by law, before 

promulgating any general notice of proposed rulemaking that is 

likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, 

and tribal governments, in the aggregate, or by the private sector, 

of $100,000,000 or more (adjusted annually for inflation) in any 1 

year, and before promulgating any final rule for which a general 

notice of proposed rulemaking was published, the agency shall prepare a written statement containing— 

ø(1) an identification of the provision of Federal law under 

which the rule is being promulgated; 


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ø(2) a qualitative and quantitative assessment of the anticipated costs and benefits of the Federal mandate, including the 

costs and benefits to State, local, and tribal governments or the 

private sector, as well as the effect of the Federal mandate on 

health, safety, and the natural environment and such an assessment shall include— 

ø(A) an analysis of the extent to which such costs to 

State, local, and tribal governments may be paid with Federal financial assistance (or otherwise paid for by the Federal Government); and 

ø(B) the extent to which there are available Federal resources to carry out the intergovernmental mandate; 

ø(3) estimates by the agency, if and to the extent that the 

agency determines that accurate estimates are reasonably feasible, of— 

ø(A) the future compliance costs of the Federal mandate; 

and 

ø(B) any disproportionate budgetary effects of the Federal mandate upon any particular regions of the nation or 

particular State, local, or tribal governments, urban or 

rural or other types of communities, or particular segments of the private sector; 

ø(4) estimates by the agency of the effect on the national 

economy, such as the effect on productivity, economic growth, 

full employment, creation of productive jobs, and international 

competitiveness of United States goods and services, if and to 

the extent that the agency in its sole discretion determines 

that accurate estimates are reasonably feasible and that such 

effect is relevant and material; and 

ø(5)(A) a description of the extent of the agency’s prior consultation with elected representatives (under section 204) of 

the affected State, local, and tribal governments; 

ø(B) a summary of the comments and concerns that were 

presented by State, local, or tribal governments either orally or 

in writing to the agency; and 

ø(C) a summary of the agency’s evaluation of those comments and concerns.¿ 

(a) IN GENERAL.—Unless otherwise expressly prohibited by law, 

before promulgating any general notice of proposed rulemaking or 

any final rule, or within six months after promulgating any final 

rule that was not preceded by a general notice of proposed rulemaking, if the proposed rulemaking or final rule includes a Federal 

mandate that may result in an annual effect on State, local, or tribal governments, or to the private sector, in the aggregate of 

$100,000,000 or more in any 1 year, the agency shall prepare a 

written statement containing the following: 

(1) The text of the draft proposed rulemaking or final rule, together with a reasonably detailed description of the need for the 

proposed rulemaking or final rule and an explanation of how 

the proposed rulemaking or final rule will meet that need. 

(2) An assessment of the potential costs and benefits of the 

proposed rulemaking or final rule, including an explanation of 

the manner in which the proposed rulemaking or final rule is 

consistent with a statutory requirement and avoids undue interVerDate Mar 15 2010 01:20 May 18, 2012 Jkt 019006 PO 00000 Frm 00029 Fmt 6659 Sfmt 6603 E:\HR\OC\HR483P1.XXX HR483P1

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ference with State, local, and tribal governments in the exercise 

of their governmental functions. 

(3) A qualitative and quantitative assessment, including the 

underlying analysis, of benefits anticipated from the proposed 

rulemaking or final rule (such as the promotion of the efficient 

functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or 

bias). 

(4) A qualitative and quantitative assessment, including the 

underlying analysis, of costs anticipated from the proposed 

rulemaking or final rule (such as the direct costs both to the 

Government in administering the final rule and to businesses 

and others in complying with the final rule, and any adverse 

effects on the efficient functioning of the economy, private markets (including productivity, employment, and international 

competitiveness), health, safety, and the natural environment); 

(5) Estimates by the agency, if and to the extent that the agency determines that accurate estimates are reasonably feasible, 

of— 

(A) the future compliance costs of the Federal mandate; 

and 

(B) any disproportionate budgetary effects of the Federal 

mandate upon any particular regions of the nation or particular State, local, or tribal governments, urban or rural 

or other types of communities, or particular segments of the 

private sector. 

(6)(A) A detailed description of the extent of the agency’s prior 

consultation with the private sector and elected representatives 

(under section 204) of the affected State, local, and tribal governments. 

(B) A detailed summary of the comments and concerns that 

were presented by the private sector and State, local, or tribal 

governments either orally or in writing to the agency. 

(C) A detailed summary of the agency’s evaluation of those 

comments and concerns. 

(7) A detailed summary of how the agency complied with each 

of the regulatory principles described in section 201. 

(b) PROMULGATION.—In promulgating a general notice of proposed rulemaking or a final rule for which a statement under subsection (a) is required, the agency shall include in the promulgation 

a detailed summary of the information contained in the statement. 

* * * * * * * 

SEC. 204. STATE, LOCAL, AND TRIBAL GOVERNMENT AND PRIVATE 

SECTOR INPUT. 

(a) IN GENERAL.—Each agency shall, to the extent permitted in 

law, develop an effective process to permit elected officers of State, 

local, and tribal governments (or their designated employees with 

authority to act on their behalf), and impacted parties within the 

private sector (including small business), to provide meaningful and 

timely input in the development of regulatory proposals containing 

significant øFederal intergovernmental mandates¿ Federal mandates. 

* * * * * * * 


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ø(c) IMPLEMENTING GUIDELINES.—No later than 6 months after 

the date of enactment of this Act, the President shall issue guidelines and instructions to Federal agencies for appropriate implementation of subsections (a) and (b) consistent with applicable laws 

and regulations.¿ 

(c) GUIDELINES.—For appropriate implementation of subsections 

(a) and (b) consistent with applicable laws and regulations, the following guidelines shall be followed: 

(1) Consultations shall take place as early as possible, before 

issuance of a notice of proposed rulemaking, continue through 

the final rule stage, and be integrated explicitly into the rulemaking process. 

(2) Agencies shall consult with a wide variety of State, local, 

and tribal officials and impacted parties within the private sector (including small businesses). Geographic, political, and 

other factors that may differentiate varying points of view 

should be considered. 

(3) Agencies should estimate benefits and costs to assist with 

these consultations. The scope of the consultation should reflect 

the cost and significance of the Federal mandate being considered. 

(4) Agencies shall, to the extent practicable— 

(A) seek out the views of State, local, and tribal governments, and impacted parties within the private sector (including small business), on costs, benefits, and risks; and 

(B) solicit ideas about alternative methods of compliance 

and potential flexibilities, and input on whether the Federal regulation will harmonize with and not duplicate similar laws in other levels of government. 

(5) Consultations shall address the cumulative impact of regulations on the affected entities. 

(6) Agencies may accept electronic submissions of comments 

by relevant parties but may not use those comments as the sole 

method of satisfying the guidelines in this subsection. 

SEC. 205. LEAST BURDENSOME OPTION OR EXPLANATION REQUIRED. 

(a) * * * 

* * * * * * * 

(c) øOMB¿ CERTIFICATION.—No later than 1 year after the date 

of the enactment of this Act, the øDirector of the Office of Management and Budget¿ Administrator of the Office of Information and 

Regulatory Affairs shall certify to Congress, with a written explanation, agency compliance with this section and include in that certification agencies and rulemakings that fail to adequately comply 

with this section. 

SEC. 206. ASSISTANCE TO THE CONGRESSIONAL BUDGET OFFICE. 

The øDirector of the Office of Management and Budget¿ Administrator of the Office of Information and Regulatory Affairs shall— 

(1) * * * 

* * * * * * * 

øSEC. 208. ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLIANCE. 

øNo later than 1 year after the effective date of this title and annually thereafter, the Director of the Office of Management and 


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Budget shall submit to the Congress, including the Committee on 

Governmental Affairs of the Senate and the Committee on Government Reform and Oversight of the House of Representatives, a 

written report detailing compliance by each agency during the preceding reporting period with the requirements of this title.¿ 

SEC. 208. OFFICE OF INFORMATION AND REGULATORY AFFAIRS RESPONSIBILITIES. 

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

and Regulatory Affairs shall provide meaningful guidance and 

oversight so that each agency’s regulations for which a written statement is required under section 202 are consistent with the principles 

and requirements of this title, as well as other applicable laws, and 

do not conflict with the policies or actions of another agency. If the 

Administrator determines that an agency’s regulations for which a 

written statement is required under section 202 do not comply with 

such principles and requirements, are not consistent with other applicable laws, or conflict with the policies or actions of another 

agency, the Administrator shall identify areas of non-compliance, 

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

agency finalizes the regulation concerned. 

(b) ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLI- ANCE.—The Director of the Office of Information and Regulatory Affairs annually shall submit to Congress, including the Committee 

on Homeland Security and Governmental Affairs of the Senate and 

the Committee on Oversight and Government Reform of the House 

of Representatives, a written report detailing compliance by each 

agency with the requirements of this title that relate to regulations 

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

activities undertaken at the request of the Director to improve compliance, during the preceding reporting period. The report shall also 

contain an appendix detailing compliance by each agency with section 204. 

SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL REGULATIONS. 

(a) REQUIREMENT.—At the request of the chairman or ranking minority member of a standing or select committee of the House of 

Representatives or the Senate, an agency shall conduct a retrospective analysis of an existing Federal regulation promulgated by an 

agency. 

(b) REPORT.—Each agency conducting a retrospective analysis of 

existing Federal regulations pursuant to subsection (a) shall submit 

to the chairman of the relevant committee, Congress, and the Comptroller General a report containing, with respect to each Federal regulation covered by the analysis— 

(1) a copy of the Federal regulation; 

(2) the continued need for the Federal regulation; 

(3) the nature of comments or complaints received concerning 

the Federal regulation from the public since the Federal regulation was promulgated; 

(4) the extent to which the Federal regulation overlaps, duplicates, or conflicts with other Federal regulations, and, to the extent feasible, with State and local governmental rules; 

(5) the degree to which technology, economic conditions, or 

other factors have changed in the area affected by the Federal 

regulation; 


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(6) a complete analysis of the retrospective direct costs and 

benefits of the Federal regulation that considers studies done 

outside the Federal Government (if any) estimating such costs 

or benefits; and 

(7) any litigation history challenging the Federal regulation. 

SEC. ø209.¿ 210. EFFECTIVE DATE. 

This title and the amendments made by this title shall take effect on the date of the enactment of this Act. 

* * * * * * * 

TITLE IV—JUDICIAL REVIEW 

SEC. 401. JUDICIAL REVIEW. 

(a) AGENCY STATEMENTS ON SIGNIFICANT REGULATORY ACTIONS.— 

(1) IN GENERAL.—Compliance or noncompliance by any agency with the provisions of øsections 202 and 203(a)(1) and (2)¿ 

sections 201, 202, 203(a)(1) and (2), and 205(a) and (b) shall 

be subject to judicial review øonly¿ in accordance with this section. 

(2) LIMITED REVIEW OF AGENCY COMPLIANCE OR NONCOMPLIANCE.—(A) Agency compliance or noncompliance with the provisions of øsections 202 and 203(a) (1) and (2)¿ sections 201, 

202, 203(a)(1) and (2), and 205(a) and (b) shall be subject to 

judicial review øonly¿ under section 706(1) of title 5, United 

States Code, and øonly¿ as provided under subparagraph (B). 

(B) If an agency fails to prepare the written statement (including the preparation of the estimates, analyses, statements, 

or descriptions) under øsection 202 or the written plan under 

section 203(a) (1) and (2), a court may compel the agency to 

prepare such written statement.¿ section 202, prepare the written plan under section 203(a)(1) and (2), or comply with section 

205(a) and (b), a court may compel the agency to prepare such 

written statement, prepare such written plan, or comply with 

such section. 

(3) REVIEW OF AGENCY RULES.—In any judicial review under 

any other Federal law of an agency rule for which a øwritten 

statement or plan is required under sections 202 and 203(a) (1) 

and (2), the inadequacy or failure to prepare such statement 

(including the inadequacy or failure to prepare any estimate, 

analysis, statement or description) or written plan shall not¿ 

written statement under section 202, a written plan under section 203(a)(1) and (2), or compliance with sections 201 and 

205(a) and (b) is required, the inadequacy or failure to prepare 

such statement (including the inadequacy or failure to prepare 

any estimate, analysis, statement, or description), to prepare 

such written plan, or to comply with such section may be used 

as a basis for staying, enjoining, invalidating or otherwise affecting such agency rule. 

* * * * * * * 


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MINORITY VIEWS 

H.R. 373, the Unfunded Mandates Information and Transparency 

Act of 2011, was introduced by Representative Foxx on January 20, 

2011. On September 21, 2011, the Subcommittee on Technology, 

Information Policy, Intergovernmental Relations and Procurement 

Reform held a business meeting to consider H.R. 373. During the 

markup, Chairman Lankford offered and the Subcommittee adopted an Amendment in the Nature of a Substitute to expand the Unfunded Mandates Reform Act (UMRA) significantly. H.R. 373 was 

ordered reported, as amended, to the full Committee on a partyline vote of 5–4. 

Democratic Members expressed concern with many provisions in 

the bill. Agencies already must comply with numerous requirements when issuing regulations and this legislation would add 

complexity and confusion to the regulatory process. 

For example, the bill included a provision that would give corporations and other business interests an opportunity to provide 

advance comments to a proposed regulation, giving them an unfair 

advantage in the rulemaking process. Although the minority introduced an amendment that would have provided the same opportunity to all stakeholders, the amendment was not adopted. 

The legislation also would require independent agencies to comply with UMRA and would require the Office of Information and 

Regulatory Affairs (OIRA) to ensure that all agencies are complying with UMRA. Giving OIRA oversight over independent agencies could threaten their independence. 

The bill also included a provision that would require agencies to 

consider only the costs when evaluating whether UMRA applies. 

Although the minority introduced an amendment that would have 

required agencies also to examine the potential benefits of a proposed regulation, the amendment was not adopted. 

Finally, the bill requires the Congressional Budget Office (CBO) 

to measure ‘‘reasonably foreseeable indirect costs.’’ This term is 

poorly defined, and it is unclear how CBO would implement this 

requirement. During the subcommittee markup, Chairman 

Lankford and Ranking Member Connolly agreed to send a letter to 

the Congressional Budget Office (CBO) asking for their views on 

whether it would be feasible for CBO to implement this provision. 

CBO responded by outlining their concerns with the bill. The majority then attempted to clarify the definition of direct costs in response to the CBO letter. The majority’s revisions, however, have 

not adequately addressed the deficiency in the bill. 

ELIJAH E. CUMMINGS. 

Æ 


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