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104th CONGRESS
1st Session
H. R. 5
_______________________________________________________________________
AN ACT
To curb the practice of imposing unfunded Federal mandates on States
and local governments, to ensure that the Federal Government pays the
costs incurred by those governments in complying with certain
requirements under Federal statutes and regulations, and to provide
information on the cost of Federal mandates on the private sector, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unfunded Mandate Reform Act of
1995''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to strengthen the partnership between the Federal
Government and States, local governments, and tribal
governments;
(2) to end the imposition, in the absence of full
consideration by Congress, of Federal mandates on States, local
governments, and tribal governments in a manner that may
displace other essential State, local, and tribal governmental
priorities;
(3) to assist Congress in its consideration of proposed
legislation establishing or revising Federal programs
containing Federal mandates affecting States, local
governments, tribal governments, and the private sector by--
(A) providing for the development of information
about the nature and size of mandates in proposed
legislation; and
(B) establishing a mechanism to bring such
information to the attention of the Senate and House of
Representatives before the Senate and House of
Representatives votes on proposed legislation;
(4) to promote informed and deliberate decisions by
Congress on the appropriateness of Federal mandates in any
particular instance;
(5) to establish a point-of-order vote on the consideration
in the Senate and House of Representatives of legislation
containing significant Federal mandates;
(6) to assist Federal agencies in their consideration of
proposed regulations affecting States, local governments, and
tribal governments, by--
(A) requiring that Federal agencies develop a
process to enable the elected and other officials of
States, local governments, and tribal governments to
provide input when Federal agencies are developing
regulations; and
(B) requiring that Federal agencies prepare and
consider better estimates of the budgetary impact of
regulations containing Federal mandates upon States,
local governments, and tribal governments before
adopting such regulations, and ensuring that small
governments are given special consideration in that
process;
(7) to establish the general rule that Congress shall not
impose Federal mandates on States, local governments, and
tribal governments without providing adequate funding to comply
with such mandates; and
(8) to begin consideration of methods to relieve States,
local governments, and tribal governments of unfunded mandates
imposed by Federal court interpretations of Federal statutes
and regulations.
SEC. 3. DEFINITIONS.
For purposes of this Act--
(1) the terms ``agency'', ``Federal financial assistance'',
``Federal private sector mandate'', ``Federal mandate'' (except
as provided by section 108), ``local government'', ``private
sector'', ``regulation'' or ``rule'', and ``State'' have the
meaning given those terms by section 421 of the Congressional
Budget Act of 1974; and
(2) the term ``small government'' means any small
governmental jurisdiction as defined in section 601(5) of title
5, United States Code, and any tribal government.
SEC. 4. LIMITATION ON APPLICATION.
This Act shall not apply to any provision in a Federal statute or a
proposed or final Federal regulation, that--
(1) enforces constitutional rights of individuals;
(2) establishes or enforces any statutory rights that
prohibit discrimination on the basis of age, race, religion,
gender, national origin, or handicapped or disability status;
(3) requires compliance with accounting and auditing
procedures with respect to grants or other money or property
provided by the Federal Government;
(4) provides for emergency assistance or relief at the
request of any State, local government, or tribal government or
any official of such a government;
(5) is necessary for the national security or the
ratification or implementation of international treaty
obligations;
(6) the President designates as emergency legislation and
that the Congress so designates in statute; or
(7) pertains to Social Security.
TITLE I--REVIEW OF UNFUNDED FEDERAL MANDATES
SEC. 101. REPORT ON UNFUNDED FEDERAL MANDATES BY ADVISORY COMMISSION ON
INTERGOVERNMENTAL RELATIONS.
(a) In General.--The Advisory Commission shall in accordance with
this section--
(1) investigate and review the role of unfunded Federal
mandates in intergovernmental relations and their impact on
State, local, tribal, and Federal Government objectives and
responsibilities, and their impact on the competitive balance
between States, local and tribal governments, and the private
sector and consider views of and the impact on working men and
women on those same matters;
(2) investigate and review the role of unfunded State
mandates imposed on local governments, the private sector, and
individuals;
(3) investigate and review the role of unfunded local
mandates imposed on the private sector and individuals; and
(4) make recommendations to the President and the Congress
regarding--
(A) allowing flexibility for State, local, and
tribal governments in complying with specific unfunded
Federal mandates for which terms of compliance are
unnecessarily rigid or complex;
(B) reconciling any 2 or more unfunded Federal
mandates which impose contradictory or inconsistent
requirements;
(C) terminating unfunded Federal mandates which are
duplicative, obsolete, or lacking in practical utility;
(D) suspending, on a temporary basis, unfunded
Federal mandates which are not vital to public health
and safety and which compound the fiscal difficulties
of State, local, and tribal governments, including
recommendations for triggering such suspension;
(E) consolidating or simplifying unfunded Federal
mandates, or the planning or reporting requirements of
such mandates, in order to reduce duplication and
facilitate compliance by State, local, and tribal
governments with those mandates;
(F) establishing common Federal definitions or
standards to be used by State, local, and tribal
governments in complying with unfunded Federal mandates
that use different definitions or standards for the
same terms or principles; and
(G) establishing procedures to ensure that, in
cases in which a Federal private sector mandate applies
to private sector entities which are competing directly
or indirectly with States, local governments, or tribal
governments for the purpose of providing substantially
similar goods or services to the public, any relief
from unfunded Federal mandates is applied in the same
manner and to the same extent to the private sector
entities as it is to the States, local governments, and
tribal governments with which they compete, and to
ensure that unfunded Federal mandate relief does not
increase private sector burdens.
Each recommendation under paragraph (4) shall, to the extent
practicable, identify the specific unfunded Federal mandates to which
the recommendation applies.
(b) Criteria.--
(1) In general.--The Advisory Commission shall establish
criteria for making recommendations under subsection (a).
(2) Issuance of proposed criteria.--The Advisory Commission
shall issue proposed criteria under this subsection not later
than 60 days after the date of the enactment of this Act, and
thereafter provide a period of 30 days for submission by the
public of comments on the proposed criteria.
(3) Final criteria.--Not later than 45 days after the date
of issuance of proposed criteria, the Advisory Commission
shall--
(A) consider comments on the proposed criteria
received under paragraph (4);
(B) adopt and incorporate in final criteria any
recommendations submitted in those comments that the
Advisory Commission determines will aid the Advisory
Commission in carrying out its duties under this
section; and
(C) issue final criteria under this subsection.
(c) Preliminary Report.--
(1) In general.--Not later than 9 months after the date of
the enactment of this Act, the Advisory Commission shall--
(A) prepare and publish a preliminary report on its
activities under this title, including preliminary
recommendations pursuant to subsection (a);
(B) publish in the Federal Register a notice of
availability of the preliminary report; and
(C) provide copies of the preliminary report to the
public upon request.
(2) Public hearings.--The Advisory Commission shall hold
public hearings on the preliminary recommendations contained in
the preliminary report of the Advisory Commission under this
subsection.
(d) Final Report.--Not later than 3 months after the date of the
publication of the preliminary report under subsection (c), the
Advisory Commission shall submit to the Congress, including the
Committee on Government Reform and Oversight of the House of
Representatives and the Committee on Governmental Affairs of the
Senate, and to the President a final report on the findings,
conclusions, and recommendations of the Advisory Commission under this
section.
(e) Priority to Mandates That Are Subject of Judicial
Proceedings.--In carrying out this section, the Advisory Commission
shall give the highest priority to immediately investigating,
reviewing, and making recommendations regarding unfunded Federal
mandates that are the subject of judicial proceedings between the
United States and a State, local, or tribal government.
(f) State Mandate and Local Mandate Defined.--As used in this
title:
(1) State mandate.--The term ``State mandate'' means any
provision in a State statute or regulation that imposes an
enforceable duty on local governments, the private sector, or
individuals, including a condition of State assistance or a
duty arising from participation in a voluntary State program.
(2) Local mandate.--The term ``local mandate'' means any
provision in a local ordinance or regulation that imposes an
enforceable duty on the private sector or individuals,
including a condition of local assistance or a duty arising
from participation in a voluntary local program.
SEC. 102. SPECIAL AUTHORITIES OF ADVISORY COMMISSION.
(a) Experts and Consultants.--The Advisory Commission may procure
temporary and intermittent services of experts or consultants under
section 3109(b) of title 5, United States Code.
(b) Staff of Federal Agencies.--Upon request of the Executive
Director of the Advisory Commission, the head of any Federal department
or agency may detail, on a reimbursable basis, any of the personnel of
that department or agency to the Advisory Commission to assist it in
carrying out its duties under this title.
(c) Administrative Support Services.--Upon the request of the
Advisory Commission, the Administrator of General Services shall
provide to the Advisory Commission, on a reimbursable basis, the
administrative support services necessary for the Advisory Commission
to carry out its duties under this title.
(d) Contract Authority.--The Advisory Commission may, subject to
appropriations, contract with and compensate Government and private
agencies or persons for property and services used to carry out its
duties under this title.
SEC. 103. DEFINITIONS.
In this title:
(1) Advisory commission.--The term ``Advisory Commission''
means the Advisory Commission on Intergovernmental Relations.
(2) Federal mandate.--The term ``Federal mandate'' means
any provision in statute or regulation or any Federal court
ruling that imposes an enforceable duty upon States, local
governments, or tribal governments including a condition of
Federal assistance or a duty arising from participation in a
voluntary Federal program.
TITLE II--REGULATORY ACCOUNTABILITY AND REFORM
SEC. 201. REGULATORY PROCESS.
(a) In General.--Each agency shall, to the extent permitted by
subchapter II of chapter 5 of title 5, United States Code--
(1) assess the effects of Federal regulations on States,
local governments, tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in legislation), including
specifically the availability of resources to carry out any
Federal mandates in those regulations; and
(2) seek to minimize those burdens that uniquely or
significantly affect such governmental entities or the private
sector, consistent with achieving statutory and regulatory
objectives.
(b) State, Local Government, and Tribal Government Input.--Each
agency shall develop an effective process to permit elected officials
(or their designated representatives) of States, local governments, and
tribal governments to provide meaningful and timely input in the
development of regulatory proposals containing significant Federal
intergovernmental mandates.
(c) Agency Plan.--Before establishing any regulatory requirements
that might significantly or uniquely affect small governments, an
agency shall have developed a plan under which the agency shall--
(1) provide notice of the contemplated requirements to
potentially affected small governments, if any;
(2) enable officials of affected small governments to
provide input pursuant to subsection (b); and
(3) inform, educate, and advise small governments on
compliance with the requirements.
(d) Least Burdensome Option or Explanation Required.--An agency may
not issue a rule that contains a Federal mandate if the rulemaking
record for the rule indicates that there are 2 or more methods that
could be used to accomplish the objective of the rule, unless--
(1) the Federal mandate is the least costly method, or has
the least burdensome effect, for--
(A) States, local governments, and tribal
governments, in the case of a rule containing a Federal
intergovernmental mandate, and
(B) the private sector, in the case of a rule
containing a Federal private sector mandate; or
(2) the agency publishes with the final rule an explanation
of why the more costly or burdensome method of the Federal
mandate was adopted.
SEC. 202. STATEMENTS TO ACCOMPANY SIGNIFICANT REGULATORY ACTIONS.
(a) In General.--Before promulgating any final rule that includes
any Federal mandate that may result in the expenditure by States, local
governments, or tribal governments, in the aggregate, or the private
sector of at least $100,000,000 (adjusted annually for inflation) in
any 1 year, and before promulgating any general notice of proposed
rulemaking that is likely to result in promulgation of any such rule,
the agency shall prepare a written statement identifying the provision
of Federal law under which the rule is being promulgated and
containing--
(1) estimates by the agency, including the underlying
analysis, of the anticipated costs to States, local
governments, tribal governments, and the private sector of
complying with the Federal mandates, and of the extent to which
such costs may be paid with funds provided by the Federal
Government or otherwise paid through Federal financial
assistance;
(2) estimates by the agency, if and to the extent that the
agency determines that accurate estimates are reasonably
feasible; of--
(A) the future costs of the Federal mandate; and
(B) any disproportionate budgetary effects of the
Federal mandates upon any particular regions of the
country or particular States, local governments, tribal
governments, urban or rural or other types of
communities, or particular segments of the private
sector;
(3) a qualitative, and if possible, a quantitative
assessment of costs and benefits anticipated from the Federal
mandates (such as the enhancement of health and safety and the
protection of the natural environment);
(4) the effect of Federal private sector mandates on the
national economy, including the effect on productivity,
economic growth, full employment, creation of productive jobs,
worker benefits and pensions, and international competitiveness
of United States goods and services;
(5) a description of the extent of the agency's prior
consultation with elected representatives (or their designated
representatives) of the affected States, local governments, and
tribal governments, and designated representatives of the
private sector;
(6) a summary of the comments and concerns that were
presented by States, local governments, or tribal governments
and the private sector either orally or in writing to the
agency;
(7) a summary of the agency's evaluation of those comments
and concerns; and
(8) the agency's position supporting the need to issue the
regulation containing the Federal mandates (considering, among
other things, the extent to which costs may or may not be paid
with funds provided by the Federal Government).
(b) Promulgation.--In promulgating a general notice of proposed
rulemaking or a final rule for which a statement under subsection (a)
is required, the agency shall include in the promulgation a summary of
the information contained in the statement.
(c) Preparation in Conjunction With Other Statement.--Any agency
may prepare any statement required by subsection (a) in conjunction
with or as part of any other statement or analysis, if the statement or
analysis satisfies the provisions of subsection (a).
SEC. 203. ASSISTANCE TO THE CONGRESSIONAL BUDGET OFFICE.
The Director of the Office of Management and Budget shall--
(1) collect from agencies the statements prepared under
section 202; and
(2) periodically forward copies of them to the Director of
the Congressional Budget Office on a reasonably timely basis
after promulgation of the general notice of proposed rulemaking
or of the final rule for which the statement was prepared.
SEC. 204. PILOT PROGRAM ON SMALL GOVERNMENT FLEXIBILITY.
(a) In General.--The Director of the Office of Management and
Budget, in consultation with Federal agencies, shall establish pilot
programs in at least 2 agencies to test innovative and more flexible
regulatory approaches that--
(1) reduce reporting and compliance burdens on small
governments; and
(2) meet overall statutory goals and objectives.
(b) Program Focus.--The pilot programs shall focus on rules in
effect or proposed rules or on a combination thereof.
SEC. 205. ANNUAL REPORT TO CONGRESS REGARDING FEDERAL COURT RULINGS.
Not later than 4 months after the date of enactment of this Act,
and no later than March 15 of each year thereafter, the Advisory
Commission on Intergovernmental Relations shall submit to the Congress,
including each of the Committee on Government Reform and Oversight of
the House of Representatives and the Committee on Governmental Affairs
of the Senate, and to the President a report describing Federal court
rulings in the preceding calendar year which imposed an enforceable
duty on 1 or more States, local governments, or tribal governments.
SEC. 206. JUDICIAL REVIEW.
(a) Review of Agency Actions Subject to Review Under Other Federal
Law.--If an agency action that is subject to section 201 or 202 is
subject to judicial review under any other Federal law (other than
chapter 7 of title 5, United States Code)--
(1) any court of the United States having jurisdiction to
review the action under the other law shall have jurisdiction
to review the action under sections 201 and 202; and
(2) in any proceeding under paragraph (1), any issue
relating exhaustion of remedies, the time and manner for
seeking review, venue, or the availability of a stay or
preliminary injunctive relief pending review shall be
determined under the other law.
(b) Limitation on Preliminary Injunctive Relief.--The second
sentence of section 705 of title 5, United States Code (relating to
preliminary relief pending review), shall not apply with respect to
review under subsection (a)(1) of an agency action, unless process
authorized by that sentence is not authorized by the other law under
which the action is reviewed.
SEC. 207. ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLIANCE WITH
REQUIREMENTS OF TITLE.
Not later than one year after the effective date of title III and
annually thereafter, the Director of the Office of Management and
Budget shall submit to Congress, including the Committee on Government
Reform and Oversight of the House of Representatives and the Committee
on Governmental Affairs of the Senate, written statements detailing the
compliance with the requirements of sections 201 and 202 by each agency
during the period reported on.
TITLE III--LEGISLATIVE ACCOUNTABILITY AND REFORM
SEC. 301. LEGISLATIVE MANDATE ACCOUNTABILITY AND REFORM.
Title IV of the Congressional Budget Act of 1974 is amended by--
(1) inserting before section 401 the following:
``Part A--General Provisions''; and
(2) adding at the end the following new part:
``Part B--Federal Mandates
``SEC. 421. DEFINITIONS.
``For purposes of this part:
``(1) Agency.--The term `agency' has the meaning stated in
section 551(1) of title 5, United States Code, but does not
include independent regulatory agencies, as defined by section
3502(10) of title 44, United States Code.
``(2) Director.--The term `Director' means the Director of
the Congressional Budget Office.
``(3) Federal financial assistance.--The term `Federal
financial assistance' means the amount of budget authority for
any Federal grant assistance or any Federal program providing
loan guarantees or direct loans.
``(4) Federal intergovernmental mandate.--The term `Federal
intergovernmental mandate' means--
``(A) any provision in legislation, statute, or
regulation that--
``(i) would impose an enforceable duty upon
States, local governments, or tribal
governments, except--
``(I) a condition of Federal
assistance; or
``(II) a duty arising from
participation in a voluntary Federal
program, except as provided in
subparagraph (B); or
``(ii) would reduce or eliminate the amount
of authorization of appropriations for Federal
financial assistance that would be provided to
States, local governments, or tribal
governments for the purpose of complying with
any such previously imposed duty unless such
duty is reduced or eliminated by a
corresponding amount; or
``(B) any provision in legislation, statute, or
regulation that relates to a then-existing Federal
program under which $500,000,000 or more is provided
annually to States, local governments, and tribal
governments under entitlement authority, if--
``(i)(I) the provision would increase the
stringency of conditions of assistance to
States, local governments, or tribal
governments under the program; or
``(II) would place caps upon, or otherwise
decrease, the Federal Government's
responsibility to provide funding to States,
local governments, or tribal governments under
the program; and
``(ii) the States, local governments, or
tribal governments that participate in the
Federal program lack authority under that
program to amend their financial or
programmatic responsibilities to continue
providing required services that are affected
by the legislation, statute, or regulation.
``(5) Federal private sector mandate.--The term `Federal
private sector mandate' means any provision in legislation,
statute, or regulation that--
``(A) would impose an enforceable duty on the
private sector except--
``(i) a condition of Federal assistance; or
``(ii) a duty arising from participation in
a voluntary Federal program; or
``(B) would reduce or eliminate the amount of
authorization of appropriations for Federal financial
assistance that will be provided to the private sector
for the purpose of ensuring compliance with such duty.
``(6) Federal mandate.--The term `Federal mandate' means a
Federal intergovernmental mandate or a Federal private sector
mandate, as defined in paragraphs (4) and (5).
``(7) Federal mandate direct costs.--
``(A) Federal intergovernmental direct costs.--In
the case of a Federal intergovernmental mandate, the
term `direct costs' means the aggregate estimated
amounts that all States, local governments, and tribal
governments would be required to spend or would be
required to forgo in revenues in order to comply with
the Federal intergovernmental mandate, or, in the case
of a provision referred to in paragraph (4)(A)(ii), the
amount of Federal financial assistance eliminated or
reduced.
``(B) Private sector direct costs.--In the case of
a Federal private sector mandate, the term `direct
costs' means the aggregate estimated amounts that the
private sector would be required to spend in order to
comply with a Federal private sector mandate.
``(C) Exclusion from direct costs.--The term
`direct costs' does not include--
``(i) estimated amounts that the States,
local governments, and tribal governments (in
the case of a Federal intergovernmental
mandate), or the private sector (in the case of
a Federal private sector mandate), would
spend--
``(I) to comply with or carry out
all applicable Federal, State, local,
and tribal laws and regulations in
effect at the time of the adoption of a
Federal mandate for the same activity
as is affected by that Federal mandate;
or
``(II) to comply with or carry out
State, local governmental, and tribal
governmental programs, or private-
sector business or other activities in
effect at the time of the adoption of a
Federal mandate for the same activity
as is affected by that mandate; or
``(ii) expenditures to the extent that they
will be offset by any direct savings to be
enjoyed by the States, local governments, and
tribal governments, or by the private sector,
as a result of--
``(I) their compliance with the
Federal mandate; or
``(II) other changes in Federal law
or regulation that are enacted or
adopted in the same bill or joint
resolution or proposed or final Federal
regulation and that govern the same
activity as is affected by the Federal
mandate.
``(D) Determination of costs.--Direct costs shall
be determined based on the assumption that States,
local governments, tribal governments, and the private
sector will take all reasonable steps necessary to
mitigate the costs resulting from the Federal mandate,
and will comply with applicable standards of practice
and conduct established by recognized professional or
trade associations. Reasonable steps to mitigate the
costs shall not include increases in State, local, or
tribal taxes or fees.
``(8) Local government.--The term `local government' has
the same meaning as in section 6501(6) of title 31, United
States Code.
``(9) Private sector.--The term `private sector' means
individuals, partnerships, associations, corporations, business
trusts, or legal representatives, organized groups of
individuals, and educational and other nonprofit institutions.
``(10) Regulation.--The term `regulation' or `rule' has the
meaning of `rule' as defined in section 601(2) of title 5,
United States Code.
``(11) State.--The term `State' has the same meaning as in
section 6501(9) of title 31, United States Code.
``(12) Significant employment impact.--The term
`significant employment impact' means an estimated net
aggregate loss of 10,000 or more jobs.
``SEC. 422. LIMITATION ON APPLICATION.
``This part shall not apply to any provision in a bill, joint
resolution, motion, amendment, or conference report before Congress
that--
``(1) enforces constitutional rights of individuals;
``(2) establishes or enforces any statutory rights that
prohibit discrimination on the basis of age, race, religion,
gender, national origin, or handicapped or disability status;
``(3) requires compliance with accounting and auditing
procedures with respect to grants or other money or property
provided by the Federal Government;
``(4) provides for emergency assistance or relief at the
request of any State, local government, or tribal government or
any official of such a government;
``(5) is necessary for the national security or the
ratification or implementation of international treaty
obligations;
``(6) the President designates as emergency legislation and
that the Congress so designates in statute; or
``(7) pertains to Social Security.
``SEC. 423. DUTIES OF CONGRESSIONAL COMMITTEES.
``(a) Submission of Bills to the Director.--When a committee of
authorization of the House of Representatives or the Senate orders a
bill or joint resolution of a public character reported, the committee
shall promptly provide the text of the bill or joint resolution to the
Director and shall identify to the Director any Federal mandate
contained in the bill or resolution.
``(b) Committee Report.--
``(1) Information regarding federal mandates.--When a
committee of authorization of the House of Representatives or
the Senate reports a bill or joint resolution of a public
character that includes any Federal mandate, the report of the
committee accompanying the bill or joint resolution shall
contain the information required by paragraph (2) and, in the
case of a Federal intergovernmental mandate, paragraph (3).
``(2) Reports on federal mandates.--Each report referred to
in paragraph (1) shall contain--
``(A) an identification and description of each
Federal mandate in the bill or joint resolution,
including the statement, if available, from the
Director pursuant to section 424(a);
``(B) a qualitative assessment, and if practicable,
a quantitative assessment of costs and benefits
anticipated from the Federal mandate (including the
effects on health and safety and protection of the
natural environment); and
``(C) a statement of--
``(i) the degree to which the Federal
mandate affects each of the public and private
sectors, including a description of the
actions, if any, taken by the committee to
avoid any adverse impact on the private sector
or on the competitive balance between the
public sector and the private sector; and
``(ii) in the case of a Federal mandate
that is a Federal intergovernmental mandate,
the extent to which limiting or eliminating the
Federal intergovernmental mandate or Federal
payment of direct costs of the Federal
intergovernmental mandate (if applicable) would
affect the competitive balance between States,
local governments, or tribal governments and
the private sector.
``(3) Intergovernmental mandates.--If any of the Federal
mandates in the bill or joint resolution are Federal
intergovernmental mandates, the report referred to in paragraph
(1) shall also contain--
``(A)(i) a statement of the amount, if any, of
increase or decrease in authorization of appropriations
under existing Federal financial assistance programs or
for new Federal financial assistance, provided by the
bill or joint resolution and usable for activities of
States, local governments, or tribal governments
subject to Federal intergovernmental mandates; and
``(ii) a statement of whether the committee intends
that the Federal intergovernmental mandates be partly
or entirely unfunded, and, if so, the reasons for that
intention; and
``(B) a statement of any existing sources of
Federal financial assistance in addition to those
identified in subparagraph (A) that may assist States,
local governments, and tribal governments in paying the
direct costs of the Federal intergovernmental mandates.
``(4) Information regarding preemption.--When a committee
of authorization of the House of Representatives or the Senate
reports a bill or joint resolution of a public character, the
committee report accompanying the bill or joint resolution
shall contain, if relevant to the bill or joint resolution, an
explicit statement on whether the bill or joint resolution, in
whole or in part, is intended to preempt any State, local, or
tribal law, and if so, an explanation of the reasons for such
intention.
``(c) Publication of Statement From the Director.--
``(1) In general.--Upon receiving a statement (including
any supplemental statement) from the Director pursuant to
section 424(a), a committee of the House of Representatives or
the Senate shall publish the statement in the committee report
accompanying the bill or joint resolution to which the
statement relates if the statement is available to be included
in the printed report.
``(2) Other publication of statement of director.--If the
statement is not published in the report, or if the bill or
joint resolution to which the statement relates is expected to
be considered by the House of Representatives or the Senate
before the report is published, the committee shall cause the
statement, or a summary thereof, to be published in the
Congressional Record in advance of floor consideration of the
bill or joint resolution.
``SEC. 424. DUTIES OF THE DIRECTOR.
``(a) Statements on Bills and Joint Resolutions Other Than
Appropriations Bills and Joint Resolutions.--
``(1) Federal intergovernmental mandates in reported bills
and resolutions.--For each bill or joint resolution of a public
character reported by any committee of authorization of the
House of Representatives or the Senate, the Director shall
prepare and submit to the committee a statement as follows:
``(A) If the Director estimates that the direct
cost of all Federal intergovernmental mandates in the
bill or joint resolution will equal or exceed
$50,000,000 (adjusted annually for inflation) in the
fiscal year in which such a Federal intergovernmental
mandate (or in any necessary implementing regulation)
would first be effective or in any of the 4 fiscal
years following such year, the Director shall so state,
specify the estimate, and briefly explain the basis of
the estimate.
``(B) The estimate required by subparagraph (A)
shall include estimates (and brief explanations of the
basis of the estimates) of--
``(i) the total amount of direct cost of
complying with the Federal intergovernmental
mandates in the bill or joint resolution; and
``(ii) the amount, if any, of increase in
authorization of appropriations or budget
authority or entitlement authority under
existing Federal financial assistance programs,
or of authorization of appropriations for new
Federal financial assistance, provided by the
bill or joint resolution and usable by States,
local governments, or tribal governments for
activities subject to the Federal
intergovernmental mandates.
``(2) Federal private sector mandates in reported bills and
joint resolutions.--For each bill or joint resolution of a
public character reported by any committee of authorization of
the House of Representatives or the Senate, the Director shall
prepare and submit to the committee a statement as follows:
``(A) If the Director estimates that the direct
cost of all Federal private sector mandates in the bill
or joint resolution will equal or exceed $50,000,000
(adjusted annually for inflation) in the fiscal year in
which any Federal private sector mandate in the bill or
joint resolution (or in any necessary implementing
regulation) would first be effective or in any of the 4
fiscal years following such fiscal year, the Director
shall so state, specify the estimate, and briefly
explain the basis of the estimate.
``(B) The estimate required by subparagraph (A)
shall include estimates (and brief explanations of the
basis of the estimates) of--
``(i) the total amount of direct costs of
complying with the Federal private sector
mandates in the bill or joint resolution; and
``(ii) the amount, if any, of increase in
authorization of appropriations under existing
Federal financial assistance programs, or of
authorization of appropriations for new Federal
financial assistance, provided by the bill or
joint resolution usable by the private sector
for the activities subject to the Federal
private sector mandates.
``(C) If the Director determines that it is not
feasible to make a reasonable estimate that would be
required under subparagraphs (A) and (B), the Director
shall not make the estimate, but shall report in the
statement that the reasonable estimate cannot be made
and shall include the reasons for that determination in
the statement.
``(3) Legislation falling below the direct costs
thresholds.--If the Director estimates that the direct costs of
a Federal mandate will not equal or exceed the threshold
specified in paragraph (1)(A) or (2)(A), the Director shall so
state and shall briefly explain the basis of the estimate.
``(4) Amended bills and joint resolutions; conference
reports.--If the Director has prepared the statement pursuant
to subsection (a) for a bill or joint resolution, and if that
bill or joint resolution is reported or passed in an amended
form (including if passed by one House as an amendment in the
nature of a substitute for the text of a bill or joint
resolution from the other House) or is reported by a committee
of conference in an amended form, the committee of conference
shall ensure, to the greatest extent practicable, that the
Director shall prepare a supplemental statement for the bill or
joint resolution in that amended form.
``(b) Assistance to Committees and Studies.--
``(1) In general.--At the request of any committee of the
House of Representatives or of the Senate, the Director shall,
to the extent practicable, consult with and assist such
committee in analyzing the budgetary or financial impact of any
proposed legislation that may have--
``(A) a significant budgetary impact on State,
local, or tribal governments;
``(B) a significant financial impact on the private
sector; or
``(C) significant employment impact on the private
sector.
``(2) Continuing studies.--The Director shall conduct
continuing studies to enhance comparisons of budget outlays,
credit authority, and tax expenditures.
``(3) Federal mandate studies.--
``(A) At the request of any committee of the House
of Representatives or the Senate, the Director shall,
to the extent practicable, conduct a study of a
legislative proposal containing a Federal mandate.
``(B) In conducting a study under subparagraph (A),
the Director shall--
``(i) solicit and consider information or
comments from elected officials (including
their designated representatives) of States,
local governments, tribal governments,
designated representatives of the private
sector, and such other persons as may provide
helpful information or comments;
``(ii) consider establishing advisory
panels of elected officials (including their
designated representatives) of States, local
governments, tribal governments, designated
representatives of the private sector, and
other persons if the Director determines, in
the Director's discretion, that such advisory
panels would be helpful in performing the
Director's responsibilities under this section;
and
``(iii) include estimates, if and to the
extent that the Director determines that
accurate estimates are reasonably feasible,
of--
``(I) the future direct cost of the
Federal mandates concerned to the
extent that they significantly differ
from or extend beyond the 5-year period
after the mandate is first effective;
and
``(II) any disproportionate
budgetary effects of the Federal
mandates concerned upon particular
industries or sectors of the economy,
States, regions, and urban, or rural or
other types of communities, as
appropriate.
``(C) In conducting a study on private sector
mandates under subparagraph (A), the Director shall
provide estimates, if and to the extent that the
Director determines that such estimates are reasonably
feasible, of--
``(i) future costs of Federal private
sector mandates to the extent that such
mandates differ significantly from or extend
beyond the 5-year period referred to in
subparagraph (B)(iii)(I);
``(ii) any disproportionate financial
effects of Federal private sector mandates and
of any Federal financial assistance in the bill
or joint resolution upon any particular
industries or sectors of the economy, States,
regions, and urban or rural or other types of
communities; and
``(iii) the effect of Federal private
sector mandates in the bill or joint resolution
on the national economy, including the effect
on productivity, economic growth, full
employment, creation of productive jobs, and
international competitiveness of United States
goods and services.
``(c) Views of Committees.--Any committee of the House of
Representatives or the Senate which anticipates that the committee will
consider any proposed legislation establishing, amending, or
reauthorizing any Federal program likely to have a significant
budgetary impact on the States, local governments, or tribal
governments, or likely to have a significant financial impact on the
private sector, including any legislative proposal submitted by the
executive branch likely to have such a budgetary or financial impact,
shall provide its views and estimates on such proposal to the Committee
on the Budget of its House.
``(d) Estimates.--If the Director determines that it is not
feasible to make a reasonable estimate that would be required for a
statement under subsection (a)(1) for a bill or joint resolution, the
Director shall not make such a statement and shall inform the
committees involved that such an estimate cannot be made and the
reasons for that determination. The bill or joint resolution for which
such statement was to be made shall be subject to a point of order
under section 425(a)(1).
``(e) Authorization of Appropriations.--There is authorized to be
appropriated to the Congressional Budget Office to carry out this part
$4,500,000 for each of fiscal years 1996 through 2002.
``SEC. 425. POINT OF ORDER.
``(a) In General.--It shall not be in order in the House of
Representatives or the Senate to consider--
``(1) any bill or joint resolution that is reported by a
committee unless the committee has published the statement of
the Director pursuant to section 424(a) prior to such
consideration, except that this paragraph shall not apply to
any supplemental statement prepared by the Director under
section 424(a)(4); or
``(2) any bill, joint resolution, amendment, motion, or
conference report that contains a Federal intergovernmental
mandate having direct costs that exceed the threshold specified
in section 424(a)(1)(A), or that would cause the direct costs
of any other Federal intergovernmental mandate to exceed the
threshold specified in section 424(a)(1)(A), unless--
``(A) the bill, joint resolution, amendment,
motion, or conference report provides new budget
authority or new entitlement authority in the House of
Representatives or direct spending authority in the
Senate for each fiscal year for the Federal
intergovernmental mandates included in the bill, joint
resolution, amendment, motion, or conference report in
an amount that equals or exceeds the estimated direct
costs of such mandate; or
``(B) the bill, joint resolution, amendment,
motion, or conference report provides an increase in
receipts or a decrease in new budget authority or new
entitlement authority in the House of Representatives
or direct spending authority in the Senate and an
increase in new budget authority or new entitlement
authority in the House of Representatives or an
increase in direct spending authority for each fiscal
year for the Federal intergovernmental mandates
included in the bill, joint resolution, amendment,
motion, or conference report in an amount that equals
or exceeds the estimated direct costs of such mandate;
or
``(C) the bill, joint resolution, amendment,
motion, or conference report--
``(i) provides that--
``(I) such mandate shall be
effective for any fiscal year only if
all direct costs of such mandate in the
fiscal year are provided in
appropriations Acts, and
``(II) in the case of such a
mandate contained in the bill, joint
resolution, amendment, motion, or
conference report, the mandate is
repealed effective on the first day of
any fiscal year for which all direct
costs of such mandate are not provided
in appropriations Acts; or
``(ii) requires a Federal agency to reduce
programmatic and financial responsibilities of
State, local, and tribal governments for
meeting the objectives of the mandate such that
the estimated direct costs of the mandate to
such governments do not exceed the amount of
Federal funding provided to those governments
to carry out the mandate in the form of
appropriations or new budget authority or new
entitlement authority in the House of
Representatives or direct spending authority in
the Senate, and establishes criteria and
procedures for that reduction.
``(b) Limitation on Application to Appropriations Bills.--
Subsection (a) shall not apply to a bill that is reported by the
Committee on Appropriations or an amendment thereto.
``(c) Determination of Direct Costs Based on Estimates by Budget
Committees.--For the purposes of this section, the amount of direct
costs of a Federal mandate for a fiscal year shall be determined based
on estimates made by the Committee on the Budget, in consultation with
the Director, of the House of Representatives or the Senate, as the
case may be.
``(d) Limitation on Application of Subsection (a)(2).--Subsection
(a)(2) shall not apply to any bill, joint resolution, amendment, or
conference report that reauthorizes appropriations for carrying out, or
that amends, any statute if enactment of the bill, joint resolution,
amendment, or conference report--
``(1) would not result in a net increase in the aggregate
amount of direct costs of Federal intergovernmental mandates;
and
``(2)(A) would not result in a net reduction or elimination
of authorizations of appropriations for Federal financial
assistance that would be provided to State, local governments,
or tribal governments for use to comply with any Federal
intergovernmental mandate; or
``(B) in the case of any net reduction or elimination of
authorizations of appropriations for such Federal financial
assistance that would result from such enactment, would reduce
the duties imposed by the Federal intergovernmental mandate by
a corresponding amount.
``SEC. 426. ENFORCEMENT IN THE HOUSE OF REPRESENTATIVES.
``It shall not be in order in the House of Representatives to
consider a rule or order that waives the application of section 425(a).
``SEC. 427. DISPOSITION OF POINTS OF ORDER.
``(a) Threshold Burden.--In order to be cognizable by the Chair, a
point of order under section 425(a) or 426 must specify the precise
language on which it is premised.
``(b) Question of Consideration.--As disposition of points of order
under section 425(a) or 426, the Chair shall put the question of
consideration with respect to the proposition that is the subject of
the points of order.
``(c) Debate and Intervening Motions.--A question of consideration
under this section shall be debatable for 10 minutes by each Member
initiating a point of order and for 10 minutes by an opponent on each
point of order, but shall otherwise be decided without intervening
motion except one that the House adjourn or that the Committee of the
Whole rise, as the case may be.
``(d) Effect on Amendment in Order as Original Text.--The
disposition of the question of consideration under this section with
respect to a bill or joint resolution shall be considered also to
determine the question of consideration under this section with respect
to an amendment made in order as original text.''.
SEC. 302. ENFORCEMENT IN THE HOUSE OF REPRESENTATIVES.
(a) Motions To Strike in the Committee of the Whole.--Clause 5 of
rule XXIII of the Rules of the House of Representatives is amended by
adding at the end the following:
``(c) In the consideration of any measure for amendment in the
Committee of the Whole containing any Federal mandate the direct costs
of which exceed the threshold in section 424(a)(1)(A) of the Unfunded
Mandate Reform Act of 1995, it shall always be in order, unless
specifically waived by terms of a rule governing consideration of that
measure, to move to strike such Federal mandate from the portion of the
bill then open to amendment.''.
(b) Committee on Rules Reports on Waived Points of Order.--The
Committee on Rules shall include in the report required by clause 1(d)
of rule XI (relating to its activities during the Congress) of the
Rules of the House of Representatives a separate item identifying all
waivers of points of order relating to Federal mandates, listed by bill
or joint resolution number and the subject matter of that measure.
SEC. 303. EXERCISE OF RULEMAKING POWERS.
The provisions of this title (except section 305) are enacted by
Congress--
(1) as an exercise of the rulemaking powers of the House of
Representatives and the Senate, and as such they shall be
considered as part of the rules of the House of Representatives
and the Senate, respectively, and such rules shall supersede
other rules only to the extent that they are inconsistent
therewith; and
(2) with full recognition of the constitutional right of
the House of Representatives and the Senate to change such
rules at anytime, in the same manner, and to the same extent as
in the case of any other rule of the House of Representatives
or the Senate, respectively.
SEC. 304. CONFORMING AMENDMENT TO TABLE OF CONTENTS.
Section 1(b) of the Congressional Budget and Impoundment Control
Act of 1974 is amended by inserting ``Part A--General Provisions''
before the item relating to section 401 and by inserting after the item
relating to section 407 the following:
``Part B--Federal Mandates
``Sec. 421. Definitions.
``Sec. 422. Limitation on application.
``Sec. 423. Duties of congressional committees.
``Sec. 424. Duties of the Director.
``Sec. 425. Point of order.
``Sec. 426. Enforcement in the House of Representatives.''.
SEC. 305. TECHNICAL AMENDMENTS.
(a) Technical Amendment.--The State and Local Government Cost
Estimate Act of 1981 (Public Law 97-108) is repealed.
(b) Technical Amendment.--Section 403 of the Congressional Budget
Act of 1974 is amended to read as follows:
``analysis by congressional budget office
``Sec. 403. The Director of the Congressional Budget Office shall,
to the extent practicable, prepare for each bill or resolution of a
public character reported by any committee of the House of
Representatives or the Senate (except the Committee on Appropriations
of each House), and submit to such committee--
``(1) an estimate of the costs which would be incurred in
carrying out such bill or resolution in the fiscal year in
which it is to become effective and in each of the 4 fiscal
years following such fiscal year, together with the basis for
each such estimate; and
``(2) a comparison of the estimate of costs described in
paragraph (1) with any available estimate of costs made by such
committee or by any Federal agency.
The estimate and comparison so submitted shall be included in the
report accompanying such bill or resolution if timely submitted to such
committee before such report is filed.''.
SEC. 306. EFFECTIVE DATE.
This title shall take effect on October 1, 1995.
Passed the House of Representatives February 1, 1995.
Attest:
Clerk.
104th CONGRESS
1st Session
H. R. 5
_______________________________________________________________________
AN ACT
To curb the practice of imposing unfunded Federal mandates on States
and local governments, to ensure that the Federal Government pays the
costs incurred by those governments in complying with certain
requirements under Federal statutes and regulations, and to provide
information on the cost of Federal mandates on the private sector, and
for other purposes.
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