II 

Calendar No. 738 

115TH CONGRESS 

2D SESSION H. R. 50 

[Report No. 115–447] 

IN THE SENATE OF THE UNITED STATES 

JULY 16, 2018 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

DECEMBER 19, 2018 

Reported by Mr. JOHNSON, with amendments 

[Omit the part struck through and insert the part printed in italic] 

AN ACT 

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 2018’’. 

6 SEC. 2. PURPOSE PURPOSES. 

7 The purpose purposes of this Act is are— 


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1 (1) to improve the quality of the deliberations 

2 of Congress with respect to proposed Federal man3 dates by— 

4 (A) providing Congress and the public with 

5 more complete information about the effects of 

6 such mandates; and 

7 (B) ensuring that Congress acts on such 

8 mandates only after focused deliberation on 

9 their effects; and 

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

11 public to identify Federal mandates that may impose 

12 undue harm on consumers, workers, employers, 

13 small businesses, private property owners, and State, 

14 local, and tribal governments. 

15 SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE 

16 STUDIES ON POLICIES INVOLVING CHANGES 

17 IN CONDITIONS OF GRANT AID. 

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

19 1974 (2 U.S.C. 602(g)) is amended by adding at the end 

20 the following new paragraph: 

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

22 any Chairman or ranking member of the minority of 

23 a Committee of the Senate or the House of Rep24 resentatives, the Director shall, to the extent prac25 ticable, conduct an assessment comparing the auVerDate Sep 11 2014 04:20 Dec 20, 2018 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H50.RS H50

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1 thorized level of funding in a bill or resolution to the 

2 prospective costs of carrying out any changes to a 

3 condition of Federal assistance being imposed on 

4 State, local, or tribal governments participating in 

5 the Federal assistance program concerned or, in the 

6 case of a bill or joint resolution that authorizes such 

7 sums as are necessary, an assessment of an esti8 mated level of funding compared to such costs.’’. 

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

10 REFLECT CONGRESSIONAL BUDGET OFFICE 

11 PRACTICE. 

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

13 1974 (2 U.S.C. 658(3) (A)(i)) is amended— 

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

15 or’’ before ‘‘be required’’; and 

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

17 spend’’ the following: ‘‘or could forgo in profits, in18 cluding costs passed on to consumers or other enti19 ties taking into account, to the extent practicable, 

20 behavioral changes,’’. 

21 SEC. 5. EXPANDING THE SCOPE OF REPORTING REQUIRE22 MENTS TO INCLUDE REGULATIONS IMPOSED 

23 BY INDEPENDENT REGULATORY AGENCIES. 

24 Paragraph (1) of section 421 Section 421(1) of the 

25 Congressional Budget Act of 1974 (2 U.S.C. 658 (1)) is 


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1 amended by striking ‘‘, but does not include independent 

2 regulatory agencies’’ and inserting ‘‘, except it does not 

3 include the Board of Governors of the Federal Reserve 

4 System, the Federal Open Market Committee, or the Bu5 reau of Consumer Financial Protection Bureau’’. 

6 SEC. 6. AMENDMENTS TO REPLACE OFFICE OF MANAGE7 MENT AND BUDGET WITH OFFICE OF INFOR8 MATION AND REGULATORY AFFAIRS. 

9 The Unfunded Mandates Reform Act of 1995 ( Pub10 lic Law 104–4;2 U.S.C. 1511 1501 et seq.) is amended— 

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

12 (A) in the subsection heading, by striking 

13 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 

14 inserting ‘‘OFFICE OF INFORMATION AND REG15 ULATORY AFFAIRS’’; and 

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

17 Management and Budget’’ and inserting ‘‘Ad18 ministrator of the Office of Information and 

19 Regulatory Affairs’’; 

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

21 (A) in the subsection heading, by striking 

22 ‘‘OMB’’; and 

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

24 Management and Budget’’ and inserting ‘‘AdVerDate Sep 11 2014 04:20 Dec 20, 2018 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H50.RS H50

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1 ministrator of the Office of Information and 

2 Regulatory Affairs’’; and 

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

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

5 and inserting ‘‘Administrator of the Office of Infor6 mation and Regulatory Affairs’’. 

7 SEC. 7. APPLYING SUBSTANTIVE POINT OF ORDER TO PRI8 VATE SECTOR MANDATES. 

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

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

11 preceding subparagraph (A)— 

12 (1) by striking ‘‘Federal intergovernmental 

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

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

15 424(a)(1)’’. 

16 SEC. 8. REGULATORY PROCESS AND PRINCIPLES. 

17 Section 201 of the Unfunded Mandates Reform Act 

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

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

20 ‘‘(a) IN GENERAL.—Each agency shall, unless other21 wise expressly prohibited by law, assess the effects of Fed22 eral regulatory actions on State, local, and tribal govern23 ments and the private sector (other than to the extent that 

24 such regulatory actions incorporate requirements specifiVerDate Sep 11 2014 04:20 Dec 20, 2018 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H50.RS H50

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1 cally set forth in law) in accordance with the following 

2 principles: 

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

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

5 the failures of private markets or public institutions 

6 that warrant new agency action) as well as assess 

7 the significance of that problem. 

8 ‘‘(2) Each agency shall examine whether exist9 ing regulations (or other law) have created, or con10 tributed to, the problem that a new regulation is in11 tended to correct and whether those regulations (or 

12 other law) should be modified to achieve the in13 tended goal of regulation more effectively. 

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

15 available alternatives to direct regulation, including 

16 providing economic incentives to encourage the de17 sired behavior, such as user fees or marketable per18 mits, or providing information upon which choices 

19 can be made by the public. 

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

21 is the best available method of achieving the regu22 latory objective, it shall design its regulations in the 

23 most cost-effective manner to achieve the regulatory 

24 objective. In doing so, each agency shall consider in25 centives for innovation, consistency, predictability, 


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1 the costs of enforcement and compliance (to the gov2 ernment, regulated entities, and the public), flexi3 bility, distributive impacts, and equity. 

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

5 and the benefits of the intended regulation and, rec6 ognizing that some costs and benefits are difficult to 

7 quantify, propose or adopt a regulation, unless ex8 pressly prohibited by law, only upon a reasoned de9 termination that the benefits of the intended regula10 tion justify its costs. 

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

12 best reasonably obtainable scientific, technical, eco13 nomic, and other information concerning the need 

14 for, and consequences of, the intended regulation. 

15 ‘‘(7) Each agency shall identify and assess al16 ternative forms of regulation and shall, to the extent 

17 feasible, specify performance objectives, rather than 

18 specifying the behavior or manner of compliance 

19 that regulated entities must adopt. 

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

21 are inconsistent, incompatible, or duplicative with its 

22 other regulations or those of other Federal agencies. 

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

24 minimize the costs of the cumulative impact of regu25 lations. 


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

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

3 minimizing the potential for uncertainty and litiga4 tion arising from such uncertainty. 

5 ‘‘(b) REGULATORY ACTION DEFINED.—In this sec6 tion, the term ‘regulatory action’ means any substantive 

7 action by an agency (normally published in the Federal 

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

9 promulgation of a final rule or regulation, including ad10 vance notices of proposed rulemaking and notices of pro11 posed rulemaking.’’. 

12 SEC. 9. EXPANDING THE SCOPE OF STATEMENTS TO AC13 COMPANY SIGNIFICANT REGULATORY AC14 TIONS. 

15 (a) IN GENERAL.—Subsection (a) of section 202 Sec16 tion 202(a) of the Unfunded Mandates Reform Act of 

17 1995 (2 U.S.C. 1532 (a)) is amended to read as follows: 

18 ‘‘(a) IN GENERAL.—Unless otherwise expressly pro19 hibited by law, before promulgating any general notice of 

20 proposed rulemaking or any final rule, or within six 6 

21 months after promulgating any final rule that was not pre22 ceded by a general notice of proposed rulemaking, if the 

23 proposed rulemaking or final rule includes a Federal man24 date that may result in an annual effect on State, local, 

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

2 shall prepare a written statement containing the following: 

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

4 or final rule, together with a reasonably detailed de5 scription of the need for the proposed rulemaking or 

6 final rule and an explanation of how the proposed 

7 rulemaking or final rule will meet that need. 

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

9 benefits of the proposed rulemaking or final rule, in10 cluding an explanation of the manner in which the 

11 proposed rulemaking or final rule is consistent with 

12 a statutory requirement and avoids undue inter13 ference with State, local, and tribal governments in 

14 the exercise of their governmental functions. 

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

16 including the underlying analysis, of benefits antici17 pated from the proposed rulemaking or final rule 

18 (such as the promotion of the efficient functioning of 

19 the economy and private markets, the enhancement 

20 of health and safety, the protection of the natural 

21 environment, and the elimination or reduction of dis22 crimination or bias). 

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

24 including the underlying analysis, of costs antici25 pated from the proposed rulemaking or final rule 


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

2 administering the final rule and to businesses and 

3 others in complying with the final rule, and any ad4 verse effects on the efficient functioning of the econ5 omy, private markets (including productivity, em6 ployment, and international competitiveness), health, 

7 safety, and the natural environment). 

8 ‘‘(5) Estimates by the agency, if and to the ex9 tent that the agency determines that accurate esti10 mates are reasonably feasible, of— 

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

12 Federal mandate; and 

13 ‘‘(B) any disproportionate budgetary ef14 fects of the Federal mandate upon any par15 ticular regions of the Nation United States or 

16 particular State, local, or tribal governments, 

17 urban or rural or other types of communities, 

18 or particular segments of the private sector. 

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

20 the agency’s prior consultation with the private sec21 tor and elected representatives (under section 204) 

22 of the affected State, local, and tribal governments. 

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

24 concerns that were presented by the private sector 


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1 and State, local, or tribal governments either orally 

2 or in writing to the agency. 

3 ‘‘(C) A detailed summary of the agency’s eval4 uation of those comments and concerns. 

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

6 complied with each of the regulatory principles de7 scribed in section 201. 

8 ‘‘(8) An assessment of the effects that the pro9 posed rulemaking or final rule are expected to have 

10 on private property owners, including the use and 

11 value of affected property.’’. 

12 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sub13 section (b) of section 202 of such Act Section 202(b) of 

14 the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 

15 1532(b)) is amended by inserting ‘‘detailed’’ before ‘‘sum16 mary’’. 

17 SEC. 10. ENHANCED STAKEHOLDER CONSULTATION. 

18 Section 204 of the Unfunded Mandates Reform Act 

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

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

21 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

22 (2) in subsection (a)— 

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

24 within the private sector (including small busi25 ness),’’ after ‘‘on their behalf)’’; and 


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1 (B) by striking ‘‘Federal intergovernmental 

2 mandates’’ and inserting ‘‘Federal mandates’’; 

3 and 

4 (3) by amending subsection (c) to read as fol5 lows: 

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

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

8 and regulations, the following guidelines shall be followed: 

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

10 possible, before issuance of a notice of proposed rule11 making, continue through the final rule stage, and 

12 be integrated explicitly into the rulemaking process. 

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

14 of State, local, and tribal officials and impacted par15 ties within the private sector (including small busi16 nesses). Geographic, political, and other factors that 

17 may differentiate varying points of view should be 

18 considered. 

19 ‘‘(3) Agencies should estimate benefits and 

20 costs to assist with these consultations. The scope of 

21 the consultation should reflect the cost and signifi22 cance of the Federal mandate being considered. 

23 ‘‘(4) A record of any consultation with any non24 Federal party during the development of regulatory 

25 proposals containing a significant Federal mandate 


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1 shall be posted on the website of the agency within 

2 five days after the consultation. Any comments sub3 mitted by a non-Federal party shall be posted on the 

4 website of the agency within five days after the date 

5 of submission to the agency. 

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

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

8 tribal governments, and impacted parties within 

9 the private sector (including small business), on 

10 costs, benefits, and risks; and 

11 ‘‘(B) solicit ideas about alternative meth12 ods of compliance and potential flexibilities, and 

13 input on whether the Federal regulation will 

14 harmonize with and not duplicate similar laws 

15 in other levels of government. 

16 ‘‘(6) Consultations shall address the cumulative 

17 impact of regulations on the affected entities. 

18 ‘‘(7) Agencies may accept electronic submis19 sions of comments by relevant parties but may not 

20 use those comments as the sole method of satisfying 

21 the guidelines in this subsection.’’. 


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1 SEC. 11. NEW AUTHORITIES AND RESPONSIBILITIES FOR 

2 OFFICE OF INFORMATION AND REGULATORY 

3 AFFAIRS. 

4 Section 208 of the Unfunded Mandates Reform Act 

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

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

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

9 of Information and Regulatory Affairs shall provide mean10 ingful guidance and oversight so that each agency’s regu11 lations for which a written statement is required under 

12 section 202 are consistent with the principles and require13 ments of this title, as well as other applicable laws, and 

14 do not conflict with the policies or actions of another agen15 cy. If the Administrator determines that an agency’s regu16 lations for which a written statement is required under 

17 section 202 do not comply with such principles and re18 quirements, are not consistent with other applicable laws, 

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

20 the Administrator shall identify areas of non-compliance, 

21 notify the agency, and request that the agency comply be22 fore the agency finalizes the regulation concerned. 

23 ‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGEN24 CY COMPLIANCE.—The Director Administrator of the Of25 fice of Information and Regulatory Affairs annually shall 

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1 land Security and Governmental Affairs of the Senate and 

2 the Committee on Oversight and Government Reform of 

3 the House of Representatives, a written report detailing 

4 compliance by each agency with the requirements of this 

5 title that relate to regulations for which a written state6 ment is required by section 202, including activities under7 taken at the request of the Director to improve compli8 ance, during the preceding reporting period. The report 

9 shall also contain an appendix detailing compliance by 

10 each agency with section 204.’’. 

11 SEC. 12. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL 

12 REGULATIONS. 

13 The Unfunded Mandates Reform Act of 1995 (Public 

14 Law 104–4; 2 U.S.C. 1511 1501 et seq.) is amended— 

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

16 and 

17 (2) by inserting after section 208 the following 

18 new section 209: 

19 ‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FED20 ERAL REGULATIONS. 

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

22 or ranking minority member of a standing or select com23 mittee of the House of Representatives or the Senate, an 

24 agency shall conduct a retrospective analysis of an existing 

25 Federal regulation promulgated by an agency. 


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1 ‘‘(b) REPORT.—Each agency conducting a retrospec2 tive analysis of existing Federal regulations pursuant to 

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

4 committee, Congress, and the Comptroller General of the 

5 United States a report containing, with respect to each 

6 Federal regulation covered by the analysis— 

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

8 ‘‘(2) the continued need for the Federal regula9 tion; 

10 ‘‘(3) the nature of comments or complaints re11 ceived concerning the Federal regulation from the 

12 public since the Federal regulation was promulgated; 

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

14 overlaps, duplicates, or conflicts with other Federal 

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

16 and local governmental rules; 

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

18 conditions, or other factors have changed in the area 

19 affected by the Federal regulation; 

20 ‘‘(6) a complete analysis of the retrospective di21 rect costs and benefits of the Federal regulation that 

22 considers studies done outside the Federal Govern23 ment (if any) estimating such costs or benefits; and 

24 ‘‘(7) any litigation history challenging the Fed25 eral regulation.’’. 


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1 SEC. 13. EXPANSION OF JUDICIAL REVIEW. 

2 Section 401(a) of the Unfunded Mandates Reform 

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

4 (1) in paragraphs (1) and (2)(A)— 

5 (A) by striking ‘‘sections 202 and 

6 203(a)(1) and (2)’’ each place it appears and 

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

8 and 205(a) and (b)’’; and 

9 (B) by striking ‘‘only’’ each place it ap10 pears; 

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

12 202’’ and all that follows through the period at the 

13 end and inserting the following: ‘‘section 202, pre14 pare the written plan under section 203(a)(1) and 

15 (2), or comply with section 205(a) and (b), a court 

16 may compel the agency to prepare such written 

17 statement, prepare such written plan, or comply with 

18 such section.’’; and 

19 (3) in paragraph (3), by striking ‘‘written state20 ment or plan is required’’ and all that follows 

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

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

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

24 sections 201 and 205(a) and (b) is required, the in25 adequacy or failure to prepare such statement (in26 cluding the inadequacy or failure to prepare any esVerDate Sep 11 2014 04:20 Dec 20, 2018 Jkt 089200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H50.RS H50

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1 timate, analysis, statement, or description), to pre2 pare such written plan, or to comply with such sec3 tion may’’. 

4 SEC. 14. REAUTHORIZATION. 

5 Section 109 of the Unfunded Mandates Reform Act 

6 of 1995 (2 U.S.C. 1516) is amended to read as follows: 

7 ‘‘SEC. 109. AUTHORIZATION OF APPROPRIATIONS. 

8 ‘‘There are authorized to be appropriated to the Con9 gressional Budget Office $1,500,000 for each of fiscal 

10 years 2018 through 2024 to carry out the provisions of 

11 this title.’’. 


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Calendar No. 738 

115TH CONGRESS 

2D SESSION H. R. 50 

[Report No. 115–447] 

AN ACT 

To provide for additional safeguards with respect to 

poses. imposing Federal mandates, and for other purDECEMBER 19, 2018 

Reported with amendments 


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