S 1189 112th
amend the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) to provide
for regulatory impact analyses for certain rules, consideration of the least burdensome
regulatory alternative, and for other purposes.IN THE
SENATE OF THE UNITED STATES
June 14, 2011
PORTMAN (for himself, Mr. CORNYN, Mr. CRAPO, Mr. ENZI, Mr. HATCH, Mr. RISCH, and
Mr. TOOMEY) introduced the following bill; which was read twice and referred to
the Committee on Homeland Security and Governmental Affairs
To amend the Unfunded Mandates Reform Act of 1995
(2 U.S.C. 1501 et seq.) to provide for regulatory impact analyses for certain
rules, consideration of the least burdensome regulatory alternative, and for other
Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled,
1. SHORT TITLE.
This Act may be cited as the `Unfunded Mandates
Accountability Act of 2011'.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The public has a right to
know the benefits and costs of regulation. Effective regulatory programs provide
important benefits to the public, including protecting the environment, worker
safety, and human health. Regulations also impose significant costs on individuals,
employers, State, local, and tribal governments, diverting resources from other
(2) Better regulatory analysis
and review should improve the quality of agency decisions, increasing the benefits
and reducing unwarranted costs of regulation.
and scrutiny of key information underlying agency decisions should make Government
more accountable to the public it serves.
SEC. 3. REGULATORY
IMPACT ANALYSES FOR CERTAIN RULES.
(a) Regulatory Impact Analyses
for Certain Rules- Section 202 of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1532) is amended--
(1) by striking the section heading
and inserting the following:
`SEC. 202. REGULATORY IMPACT
ANALYSES FOR CERTAIN RULES.';
(2) by redesignating subsections
(b) and (c) as subsections (d) and (e), respectively;
(3) by striking subsection (a) and inserting the following:
`(a) Definition- In this section, the term `cost' means the cost of compliance
and any reasonably foreseeable indirect costs, including revenues lost as a result
of an agency rule subject to this section.
`(b) In General- Before
promulgating any proposed or final rule that may have an annual effect on the
economy of $100,000,000 or more (adjusted for inflation), or that may result in
the expenditure by State, local, and tribal governments, in the aggregate, of
$100,000,000 or more (adjusted for inflation) in any 1 year, each agency shall
prepare and publish in the Federal Register an initial and final regulatory impact
analysis. The initial regulatory impact analysis shall accompany the agency's
notice of proposed rulemaking and shall be open to public comment. The final regulatory
impact analysis shall accompany the final rule.
The initial and final regulatory impact analysis under subsection (b) shall include--
`(1)(A) an analysis of the anticipated benefits and costs of the rule, which shall
be quantified to the extent feasible;
`(B) an analysis
of the benefits and costs of a reasonable number of regulatory alternatives within
the range of the agency's discretion under the statute authorizing the rule, including
`(i) require no action by the
Federal Government; and
`(ii) use incentives
and market-based means to encourage the desired behavior, provide information
upon which choices can be made by the public, or employ other flexible regulatory
options that permit the greatest flexibility in achieving the objectives of the
statutory provision authorizing the rule; and
an explanation that the rule meets the requirements of section 205;
`(2) an assessment of the extent to which--
the costs to State, local and tribal governments may be paid with Federal financial
assistance (or otherwise paid for by the Federal Government); and
`(B) there are available Federal resources to carry out the rule;
`(A) any disproportionate budgetary
effects of the rule 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; and
`(B) the effect of the rule on job creation or job loss, which shall be quantified
to the extent feasible; and
`(4)(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;
`(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
`(C) a summary of the agency's evaluation of those comments and concerns.';
(4) in subsection (d) (as redesignated by paragraph (2) of this subsection), by
striking `subsection (a)' and inserting `subsection (b)'; and
(5) in subsection (e) (as redesignated by paragraph (2) of this subsection), by
striking `subsection (a)' each place that term appears and inserting `subsection
(b) Technical and Conforming Amendment- The table of
sections for the Unfunded Mandates Reform Act of 1995 is amended by striking the
item relating to section 202 and inserting the following:
202. Regulatory impact analyses for certain rules.'.
4. LEAST BURDENSOME OPTION OR EXPLANATION REQUIRED.
of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1535) is amended by striking
section 205 and inserting the following:
`SEC. 205. LEAST BURDENSOME
OPTION OR EXPLANATION REQUIRED.
`Before promulgating any proposed
or final rule for which a regulatory impact analysis is required under section
202, the agency shall--
`(1) identify and consider a reasonable
number of regulatory alternatives within the range of the agency's discretion
under the statute authorizing the rule, including alternatives required under
section 202(b)(1)(B); and
`(2) from the alternatives
described under paragraph (1), select the least costly, most cost-effective, or
least burdensome alternative that achieves the objectives of the statute.'.
5. INCLUSION OF APPLICATION TO INDEPENDENT REGULATORY AGENCIES.
(a) In General- Section 421(1) of the Congressional Budget and Impoundment Control
Act of 1974 (2 U.S.C. 658(1)) is amended by striking `, but does not include independent
(b) Exemption for Monetary Policy- The Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) is amended by inserting after
section 5 the following:
`SEC. 6. EXEMPTION FOR MONETARY POLICY.
`Nothing in title II, III, or IV shall apply to rules that concern monetary policy
proposed or implemented by the Board of Governors of the Federal Reserve System
or the Federal Open Market Committee.'.
SEC. 6. JUDICIAL REVIEW.
The Unfunded Mandates Reform Act of 1995 is amended by striking section 401 (2
U.S.C. 1571) and inserting the following:
`SEC. 401. JUDICIAL REVIEW.
`(a) In General- For any rule subject to section 202, a party aggrieved by final
agency action is entitled to judicial review of an agency's analysis under and
compliance with sections 202 (b) and (c)(1) and 205. The scope of review shall
be governed by chapter 7 of title 5, United States Code.
Jurisdiction- Each court having jurisdiction to review a rule subject to section
202 for compliance with section 553 of title 5, United States Code, or under any
other provision of law, shall have jurisdiction to review any claims brought under
subsection (a) of this section.
`(c) Relief Available- In granting
relief in an action under this section, the court shall order the agency to take
remedial action consistent with chapter 7 of title 5, United States Code, including
remand and vacatur of the rule.'.
SEC. 7. EFFECTIVE DATE.
This Act shall take effect 90 days after the date of enactment of this Act.