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H.R. 50 (115th): Unfunded Mandates Information and Transparency Act of 2017

When the federal government creates laws for state or local governments to follow, but does not correspondingly provide money for those subsidiary levels to carry these new laws out, they’re nicknamed “unfunded mandates.”

A 1995 bill, the Unfunded Mandates Reform Act, was passed under the Republican Congress and ordered public reporting for the estimated cost of unfunded mandates. However, several loopholes allowed many unfunded mandates to still get passed while avoiding the law’s transparency requirements. For example, many rules from regulatory agencies such as the EPA are exempt.

What the bill does

The Unfunded Mandates Information and Transparency Act [H.R. 50 and S. 1523] aims to broaden the original 1995 law in several ways:

  • In addition to including estimated direct costs, the federal government would also have to include added “indirect” costs as well. (Although this is much more of an inexact science subject to speculation, such as consumer“behavioral changes.”)
  • Under current law, rules from federal agencies are exempt if they didn’t go through a technical procedure called a “Notice of Proposed Rulemaking.” That exemption would end.
  • Would officially designate the Office of Information and Regulatory Affairs (OIRA) as responsible for determining whether any unfunded mandates have met the new requirements. In practice, under President Trump’s highly deregulatory OIRA administrator Neomi Rao, very few would pass the office’s scrutiny.
  • The bill would also allow for retrospective review of unfunded mandates, meaning it could apply to previously-issued rules or regulations dating back years, including ones from the Obama Administration which Republicans dislike.

In other words, if this bill was enacted, it would mean fewer unfunded mandate laws would pass and that some existing ones could be retroactively repealed

The House version was introduced on the first day of Congress in January 2017, by Rep. Virginia Foxx (R-NC5). The Senate version was introduced about six months later in July 2017 by Sen. Deb Fischer (R-NE).

What supporters say

Republican supporters say the status quo increases costs and inconveniences state and local governments.

“Every year Washington imposes thousands of rules on local governments and small businesses,” Foxx said in a press release. “Hidden in those rules are costly mandates that stretch state and city budgets and make it harder for businesses to hire.”

“This legislation will help restore transparency and hold Washington bureaucrats accountable for the true cost — in dollars and in jobs — that federal dictates pose to the economy,” Foxx continued. “Americans are better served when regulators are required to measure and consider the costs of the rules they create.”

What opponents say

Democratic opponents counter that the bill would jeopardize countless valuable protections for consumers and the vulnerable, enacted through rules and regulations.

“[The bill] would be an assault on the nation’s health, safety, and environmental protections, would erect new barriers to unnecessarily slow down the regulatory process, and would give regulated industries an unfair advantage to water down consumer protections,” wrote Rep. Elijah Cummings (D-MD7), the ranking member on the House Oversight and Government Reform Committee.

“The majority needlessly rushed consideration of this bill without providing Members adequate time for consideration and thoughtful deliberation.” Cummings introduced an amendment to the bill which would strike the retrospective repeal provision, but it was voted down on a nearly party-line 179–245 vote.

Odds of passage

The bill has passed the House in both of the previous two Congresses, though it has yet to receive a Senate vote.

The 2013–14 version passed 234–176. Republicans were unanimously in favor 217–0, while Democrats mostly opposed 17–176.

Then the 2015–16 version passed by a slightly largin margin, 250–173. Republicans were once again unanimous by 241–0, while Democrats were even more strongly opposed than before by 9–173.

The current version is expected to be considered and possibly voted on by the House in mid-July. It has five bipartisan cosponsors: three Democrats and two Republicans.

The Senate version has one Republican cosponsor.

Last updated Jul 12, 2018. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 3, 2017.

Unfunded Mandates Information and Transparency Act of 2017

This bill amends the Congressional Budget Act of 1974 to: (1) require the Congressional Budget Office (CBO), at the request of the chairman or ranking member of a congressional committee, to conduct an assessment comparing the authorized level of funding in legislation 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; (2) modify the definition of "direct costs" to require CBO to consider, in accounting for the costs of federal mandates, forgone business profits, costs passed onto consumers and other entities, and behavioral changes; (3) eliminate the exemption of independent regulatory agencies (except the Board of Governors of the Federal Reserve System, the Federal Open Market Committee, or the Consumer Financial Protection Bureau) from reporting requirements under the Unfunded Mandates Reform Act of 1995 (UMRA); and (4) make the raising of points of order in the consideration of congressional legislation applicable to legislation that would increase the direct cost of private sector mandates beyond limits established by UMRA.

The bill amends UMRA to: (1) transfer certain responsibilities under it from the Office of Management and Budget to the Office of Information and Regulatory Affairs (OIRA); (2) set forth detailed criteria to guide agencies in assessing the effects of federal regulatory actions on state, local, and tribal governments and the private sector; (3) revise requirements for agency statements accompanying significant regulatory actions to require an analysis of the effects of a proposed final rule on state, local, or tribal governments, the private sector, and private property owners; and (4) extend to the the private sector the requirement for consultation with agencies in the development of regulatory proposals containing significant federal mandates.

UMRA reporting requirements are revised to require: (1) the OIRA to provide guidance and oversight so that agency regulations are consistent with the principles and policies of UMRA and do not conflict with the policies or actions of another agency; and (2) agencies to include in their annual compliance statements an appendix detailing consultation activities with state, local, and tribal governments and the private sector.

The bill requires an agency, at the request of the chairman or ranking member of a standing or select House or Senate Committee, to conduct a retrospective analysis of an existing regulation promulgated by such agency.

Judicial review under UMRA is expanded to include review of provisions of such Act relating to agency assessment of the effects of the regulatory process and agency selection of the least costly or least burdensome alternative to a regulatory mandate. Courts are granted expanded powers to compel agencies to comply with UMRA reporting requirements.