Sec. 382. Application of the Unfunded Mandates Reform Act
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The Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1501 et seq.) shall apply to the Board of Governors of the Federal Reserve System, the Consumer Law Enforcement Agency, the Commodity Futures Trading Commission, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Office of the Comptroller of the Currency, the National Credit Union Administration, and the Securities and Exchange Commission. 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:
The text of the draft proposed rulemaking or final rule, together with the information required under subsections
(a)and (b)(1) of section 312, as applicable, including an explanation of the manner in which the proposed rulemaking or final rule is consistent with the statutory requirement and avoids undue interference with State, local, and Tribal governments in the exercise of their governmental functions. Estimates by the agency, if and to the extent that the agency determines that accurate estimates are reasonably feasible, of— the future compliance costs of the Federal mandate; and 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. A detailed description of the extent of the agency’s prior consultation with the private sector and elected representatives (under subsection
(c)and section 204 of the Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1534 ) of the affected State, local, and tribal governments. 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. A detailed summary of the agency’s evaluation of those comments and concerns. A detailed summary of how the agency complied with section 312, as applicable. If an agency is required to prepare a written statement under both paragraph
(1)and section 202(a) of the Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1532(a) ), the agency shall prepare only one written statement that consolidates and meets the requirements of such paragraph and such section. Each agency shall, to the extent permitted in law, develop an effective process to permit impacted parties within the private sector (including small businesses) to provide meaningful and timely input in the development of regulatory proposals containing significant Federal mandates. If an agency is required to develop a process under both paragraph
(1)and section 204(a) of the Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1534(a) ), the agency shall develop only one process that consolidates and meets the requirements of such paragraph and such section. For appropriate implementation of this subsection and of section 204 of the Unfunded Mandates Reform Act, consistent with applicable laws and regulations, the following guidelines shall be followed: — 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. 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. 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. Agencies shall, to the extent practicable— seek out the views of State, local, and Tribal governments, and impacted parties within the private sector (including small businesses), on costs, benefits, and risks; and 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. Consultations shall address the cumulative impact of regulations on the affected entities. 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. 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 subsection
(b)and section 202 of the Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1532 ) 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 Federal agency (as the term “agency” is defined under section 551 of title 5, United States Code). If the Administrator determines that an agency’s regulations for which a written statement is required under subsection
(b)and section 202 of the Unfunded Mandates Reform Act of 1995 do not comply with such principles and requirements, are not consistent with other applicable laws, or conflict with the policies or actions of another Federal agency (as the term “agency” is defined under section 551 of title 5, United States Code), the Administrator shall identify areas of noncompliance, notify the agency, and request that the agency comply before the agency finalizes the regulation concerned. The Administrator of the Office of Information and Regulatory Affairs shall submit to the Director of the Office of Management and Budget for inclusion in the annual report required by section 208 of the Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1538 ) 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 subsection
(b)and section 202 of the Unfunded Mandates Reform Act of 1995 ( 2 U.S.C. 1532 ), including activities undertaken at the request of the Administrator to improve compliance, during the preceding reporting period. The report shall also contain an appendix detailing compliance by each agency with subsection
(c)and section 204 of the Unfunded Mandates Reform Act. Compliance or noncompliance by any agency with the provisions of subsection
(b)and sections 202, 203(a)(1) and (2), and 205 of the Unfunded Mandates Reform Act of 1995 shall be subject to judicial review in accordance with this subsection. Agency compliance or noncompliance with the provisions of subsection
(b)and sections 202, 203(a)(1) and (2), and 205 of the Unfunded Mandates Reform Act of 1995 shall be subject to judicial review under section 706(1) of title 5, United States Code, and as provided under clause (ii). If an agency fails to prepare the written statement (including the preparation of the estimates, analyses, statements, or descriptions) under subsection
(b)and section 202 of the Unfunded Mandates Reform Act, prepare a written plan under paragraphs
(1)and
(2)of section 203 of the Unfunded Mandates Reform Act, or comply with section 205 of the Unfunded Mandates Reform Act, a court may compel the agency to prepare such written statement, prepare such written plan, or comply with such section. In any judicial review under any other Federal law of an agency rule for which compliance with this subtitle is required, the inadequacy or failure to prepare required material, or to comply with provisions of subsection
(b)and sections 202, 203(a)(1) and (2), and 205 of the Unfunded Mandates Reform Act of 1995 may be used as a basis for staying, enjoining, invalidating or otherwise affecting such agency rule. Any information generated under subsection
(b)and sections 202, 203(a)(1) and (2), and 205 of the Unfunded Mandates Reform Act of 1995 that is part of the rulemaking record for judicial review under the provisions of any other Federal law may be considered as part of the record for judicial review conducted under such other provisions of Federal law. For any petition under subparagraph
(B)the provisions of such other Federal law shall control all other matters, such as exhaustion of administrative remedies, the time for and manner of seeking review and venue, except that if such other Federal law does not provide a limitation on the time for filing a petition for judicial review that is less than 180 days, such limitation shall be 180 days after a final rule is promulgated by the appropriate agency. This paragraph shall apply to any agency rule for which a general notice of proposed rulemaking is promulgated on or after the date of the enactment of this Act. Except as provided in paragraph (1)— any estimate, analysis, statement, description, or report prepared under this subtitle, any compliance or noncompliance with the provisions of this subtitle, and any determination concerning the applicability of the provisions of this subtitle shall not be subject to judicial review; and no provision of this subtitle shall be construed to create any right or benefit, substantive or procedural, enforceable by any person in any administrative or judicial action.
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Sec. 382
Application of the Unfunded Mandates Reform Act
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