II 

114TH CONGRESS 

1ST SESSION S. 189 

To provide for additional safeguards with respect to imposing Federal 

mandates, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 20, 2015 

Mrs. FISCHER (for herself and Mr. LANKFORD) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To provide for additional safeguards with respect to imposing 

Federal mandates, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Unfunded Mandates 

5 Information and Transparency Act of 2015’’. 

6 SEC. 2. PURPOSE. 

7 The purpose of this Act is— 

8 (1) to improve the quality of the deliberations 

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

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1 (A) providing Congress and the public with 

2 more complete information about the effects of 

3 such mandates; and 

4 (B) ensuring that Congress acts on such 

5 mandates only after focused deliberation on 

6 their effects; and 

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

8 public to identify Federal mandates that may impose 

9 undue harm on consumers, workers, employers, 

10 small businesses, and State, local, and tribal govern11 ments. 

12 SEC. 3. PROVIDING FOR CONGRESSIONAL BUDGET OFFICE 

13 STUDIES ON POLICIES INVOLVING CHANGES 

14 IN CONDITIONS OF GRANT AID. 

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

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

17 the following new paragraph: 

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

19 any Chairman or ranking member of the minority of 

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

23 bill or resolution to the prospective costs of carrying 

24 out any changes to a condition of Federal assistance 

25 being imposed on State, local, or tribal governments 

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

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

5 to such costs.’’. 

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

7 REFLECT CONGRESSIONAL BUDGET OFFICE 

8 PRACTICE. 

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

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

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

12 or’’ before ‘‘be required’’; and 

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

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

17 behavioral changes,’’. 

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

20 BY INDEPENDENT REGULATORY AGENCIES. 

21 Paragraph (1) of section 421 of the Congressional 

22 Budget Act of 1974 (2 U.S.C. 658) is amended by striking 

23 ‘‘, but does not include independent regulatory agencies’’ 

24 and inserting ‘‘, except it does not include the Board of 

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1 Governors of the Federal Reserve System or the Federal 

2 Open Market Committee’’. 

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

6 The Unfunded Mandates Reform Act of 1995 (Public 

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

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

9 (A) in the subsection heading, by striking 

10 ‘‘OFFICE OF MANAGEMENT AND BUDGET’’ and 

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

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

14 Management and Budget’’ and inserting ‘‘Ad15 ministrator of the Office of Information and 

16 Regulatory Affairs’’; 

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

18 (A) in the subsection heading, by striking 

19 ‘‘OMB’’; and 

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

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

23 Regulatory Affairs’’; and 

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

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

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

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

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

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

7 (1) by striking ‘‘Federal intergovernmental 

8 mandates’’ and inserting ‘‘Federal mandates’’; and 

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

10 424(a)(1)’’. 

11 SEC. 8. REGULATORY PROCESS AND PRINCIPLES. 

12 Section 201 of the Unfunded Mandates Reform Act 

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

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

15 ‘‘(a) IN GENERAL.—Each agency shall, unless other16 wise expressly prohibited by law, assess the effects of Fed17 eral regulatory actions on State, local, and tribal govern18 ments and the private sector (other than to the extent that 

19 such regulatory actions incorporate requirements specifi20 cally set forth in law) in accordance with the following 

21 principles: 

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

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

24 the failures of private markets or public institutions 

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1 that warrant new agency action) as well as assess 

2 the significance of that problem. 

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

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

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

10 available alternatives to direct regulation, including 

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

14 can be made by the public. 

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

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

18 most cost-effective manner to achieve the regulatory 

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

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

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

25 and the benefits of the intended regulation and, recmstockstill on DSK4VPTVN1PROD with BILLS

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1 ognizing that some costs and benefits are difficult to 

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

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

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

9 for, and consequences of, the intended regulation. 

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

12 feasible, specify performance objectives, rather than 

13 specifying the behavior or manner of compliance 

14 that regulated entities must adopt. 

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

16 are inconsistent, incompatible, or duplicative with its 

17 other regulations or those of other Federal agencies. 

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

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

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

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

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

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

3 action by an agency (normally published in the Federal 

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

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

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

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

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

13 amended to read as follows: 

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

16 proposed rulemaking or any final rule, or within six 

17 months after promulgating any final rule that was not pre18 ceded by a general notice of proposed rulemaking, if the 

19 proposed rulemaking or final rule includes a Federal man20 date that may result in an annual effect on State, local, 

21 or tribal governments, or to the private sector, in the ag22 gregate of $100,000,000 or more in any 1 year, the agency 

23 shall prepare a written statement containing the following: 

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

25 or final rule, together with a reasonably detailed demstockstill on DSK4VPTVN1PROD with BILLS

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1 scription of the need for the proposed rulemaking or 

2 final rule and an explanation of how the proposed 

3 rulemaking or final rule will meet that need. 

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

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

7 proposed rulemaking or final rule is consistent with 

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

10 the exercise of their governmental functions. 

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

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

14 (such as the promotion of the efficient functioning of 

15 the economy and private markets, the enhancement 

16 of health and safety, the protection of the natural 

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

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

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

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

23 administering the final rule and to businesses and 

24 others in complying with the final rule, and any ad25 verse effects on the efficient functioning of the econmstockstill on DSK4VPTVN1PROD with BILLS

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

3 safety, and the natural environment). 

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

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

8 Federal mandate; and 

9 ‘‘(B) any disproportionate budgetary ef10 fects of the Federal mandate upon any par11 ticular regions of the Nation or particular 

12 State, local, or tribal governments, urban or 

13 rural or other types of communities, or par14 ticular segments of the private sector. 

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

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

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

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

20 concerns that were presented by the private sector 

21 and State, local, or tribal governments either orally 

22 or in writing to the agency. 

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

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

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

4 (b) REQUIREMENT FOR DETAILED SUMMARY.—Sec5 tion 202(b) of the Unfunded Mandates Reform Act of 

6 1995 (2 U.S.C. 1532(b)) is amended by inserting ‘‘de7 tailed’’ before ‘‘summary’’. 

8 SEC. 10. ENHANCED STAKEHOLDER CONSULTATION. 

9 Section 204 of the Unfunded Mandates Reform Act 

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

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

12 PRIVATE SECTOR’’ before ‘‘INPUT’’; 

13 (2) in subsection (a)— 

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

15 within the private sector (including small busi16 ness),’’ after ‘‘on their behalf)’’; and 

17 (B) by striking ‘‘Federal intergovernmental 

18 mandates’’ and inserting ‘‘Federal mandates’’; 

19 and 

20 (3) by amending subsection (c) to read as fol21 lows: 

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

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

24 and regulations, the following guidelines shall be followed: 

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

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

4 be integrated explicitly into the rulemaking process. 

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

6 of State, local, and tribal officials and impacted par7 ties within the private sector (including small busi8 nesses). Geographic, political, and other factors that 

9 may differentiate varying points of view should be 

10 considered. 

11 ‘‘(3) Agencies should estimate benefits and 

12 costs to assist with these consultations. The scope of 

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

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

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

17 tribal governments, and impacted parties within 

18 the private sector (including small business), on 

19 costs, benefits, and risks; and 

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

22 input on whether the Federal regulation will 

23 harmonize with and not duplicate similar laws 

24 in other levels of government. 

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1 ‘‘(5) Consultations shall address the cumulative 

2 impact of regulations on the affected entities. 

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

5 use those comments as the sole method of satisfying 

6 the guidelines in this subsection.’’. 

7 SEC. 11. NEW AUTHORITIES AND RESPONSIBILITIES FOR 

8 OFFICE OF INFORMATION AND REGULATORY 

9 AFFAIRS. 

10 Section 208 of the Unfunded Mandates Reform Act 

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

12 ‘‘SEC. 208. OFFICE OF INFORMATION AND REGULATORY AF13 FAIRS RESPONSIBILITIES. 

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

15 of Information and Regulatory Affairs shall provide mean16 ingful guidance and oversight so that each agency’s regu17 lations for which a written statement is required under 

18 section 202 are consistent with the principles and require19 ments of this title, as well as other applicable laws, and 

20 do not conflict with the policies or actions of another agen21 cy. If the Administrator determines that an agency’s regu22 lations for which a written statement is required under 

23 section 202 do not comply with such principles and re24 quirements, are not consistent with other applicable laws, 

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

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1 the Administrator shall identify areas of non-compliance, 

2 notify the agency, and request that the agency comply be3 fore the agency finalizes the regulation concerned. 

4 ‘‘(b) ANNUAL STATEMENTS TO CONGRESS ON AGEN5 CY COMPLIANCE.—The Director of the Office of Informa6 tion and Regulatory Affairs annually shall submit to Con7 gress, including the Committee on Homeland Security and 

8 Governmental Affairs of the Senate and the Committee 

9 on Oversight and Government Reform of the House of 

10 Representatives, a written report detailing compliance by 

11 each agency with the requirements of this title that relate 

12 to regulations for which a written statement is required 

13 by section 202, including activities undertaken at the re14 quest of the Director to improve compliance, during the 

15 preceding reporting period. The report shall also contain 

16 an appendix detailing compliance by each agency with sec17 tion 204.’’. 

18 SEC. 12. RETROSPECTIVE ANALYSIS OF EXISTING FEDERAL 

19 REGULATIONS. 

20 The Unfunded Mandates Reform Act of 1995 (2 

21 U.S.C. 1511 et seq.) is amended— 

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

23 and 

24 (2) by inserting after section 208 the following 

25 new section 209: 

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1 ‘‘SEC. 209. RETROSPECTIVE ANALYSIS OF EXISTING FED2 ERAL REGULATIONS. 

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

4 or ranking minority member of a standing or select com5 mittee of the House of Representatives or the Senate, an 

6 agency shall conduct a retrospective analysis of an existing 

7 Federal regulation promulgated by an agency. 

8 ‘‘(b) REPORT.—Each agency conducting a retrospec9 tive analysis of existing Federal regulations pursuant to 

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

11 committee, Congress, and the Comptroller General a re12 port containing, with respect to each Federal regulation 

13 covered by the analysis— 

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

15 ‘‘(2) the continued need for the Federal regula16 tion; 

17 ‘‘(3) the nature of comments or complaints re18 ceived concerning the Federal regulation from the 

19 public since the Federal regulation was promulgated; 

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

21 overlaps, duplicates, or conflicts with other Federal 

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

23 and local governmental rules; 

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

25 conditions, or other factors have changed in the area 

26 affected by the Federal regulation; 

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1 ‘‘(6) a complete analysis of the retrospective di2 rect costs and benefits of the Federal regulation that 

3 considers studies done outside the Federal Govern4 ment (if any) estimating such costs or benefits; and 

5 ‘‘(7) any litigation history challenging the Fed6 eral regulation.’’. 

7 SEC. 13. EXPANSION OF JUDICIAL REVIEW. 

8 Section 401(a) of the Unfunded Mandates Reform 

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

10 (1) in paragraphs (1) and (2)(A)— 

11 (A) by striking ‘‘sections 202 and 

12 203(a)(1) and (2)’’ each place it appears and 

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

14 and 205(a) and (b)’’; and 

15 (B) by striking ‘‘only’’ each place it ap16 pears; 

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

18 202’’ and all that follows through the period at the 

19 end and inserting the following: ‘‘section 202, pre20 pare the written plan under section 203(a)(1) and 

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

22 may compel the agency to prepare such written 

23 statement, prepare such written plan, or comply with 

24 such section.’’; and 

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1 (3) in paragraph (3), by striking ‘‘written state2 ment or plan is required’’ and all that follows 

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

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

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

6 sections 201 and 205(a) and (b) is required, the in7 adequacy or failure to prepare such statement (in8 cluding the inadequacy or failure to prepare any es9 timate, analysis, statement, or description), to pre10 pare such written plan, or to comply with such sec11 tion may’’. 

Æ 

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