United States General Accounting Office

GAO Report to the Committee on

Governmental Affairs, U.S. Senate

February 1998 UNFUNDED

MANDATES

Reform Act Has Had

Little Effect on

Agencies’ Rulemaking

Actions

GAO/GGD-98-30

GAO United States

General Accounting Office

Washington, D.C. 20548

General Government Division

B-276598 

February 4, 1998

The Honorable Fred Thompson

Chairman

The Honorable John Glenn

Ranking Minority Member

Committee on Governmental Affairs

United States Senate

During the past 20 years, state, local, and tribal governments as well as

businesses have expressed concerns about the costs associated with

federal regulations. Because of those concerns, Congress has enacted a

number of statutes designed to reform the process by which federal

agencies develop and issue regulations.1

 Some of these statutory

requirements are found in title II of the Unfunded Mandates Reform Act of

1995 (UMRA), which was passed early in the 104th Congress and was signed

by the President on March 22, 1995.2

Title II of UMRA has various sections, each of which requires rulemaking

agencies or the Office of Management and Budget (OMB) to take certain

actions. For example, section 202 of UMRA generally requires federal

agencies (other than independent regulatory agencies)3

 to prepare “written

statements” containing specific information for any rule4

 for which a

proposed rule was published that includes a federal mandate that may

result in the expenditure of $100 million or more in any 1 year by state,

local, and tribal governments, in the aggregate, or the private sector. A

“mandate” is defined in UMRA as an “enforceable duty” that is not a

condition of federal assistance and does not arise from participation in a

voluntary federal program. For those rules requiring a written statement,

other sections of UMRA require the following:

• Section 205 of UMRA requires agencies to consider a reasonable number of

regulatory alternatives and select the one that is the least costly, most

cost-effective, or least burdensome and that achieves the purpose of the

rule.

1

These statutes include the Paperwork Reduction Acts of 1980 and 1995, the Regulatory Flexibility Act,

and the Small Business Regulatory Enforcement Fairness Act of 1996.

2

Public Law No. 104-4, 109 Stat. 48 (1995).

3

Independent regulatory agencies include such agencies as the Federal Communications Commission,

the Securities and Exchange Commission, and the Consumer Product Safety Commission.

4

In this report, the “rule” includes both the revisions to the text of the Code of Federal Regulations and

the preamble to the text revisions.

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• Section 203 of UMRA states that agencies must develop plans to involve

small governments in the development of regulatory proposals that have a

significant or unique effect on those entities.5

• Section 204 of UMRA requires agencies to develop processes to consult with

representatives of state, local, and tribal governments in the development

of regulatory proposals containing “significant [f]ederal intergovernmental

mandates.”

• Section 206 of UMRA requires the Director of OMB to collect the written

statements prepared under section 202 and periodically forward them to

the Director of the Congressional Budget Office (CBO).

• Section 207 of UMRA requires the OMB Director to establish pilot programs

in at least two agencies to test regulatory approaches that reduce the

burden on small governments.

Title IV of UMRA sets forth the extent to which agencies’ compliance with

the written statement and small government plan requirements in the act

are subject to judicial review.

This report responds to your request that we review federal agencies’

implementation of UMRA. The overall objective of our review was to

determine what effect title II of UMRA has had on agencies’ rulemaking

actions. To accomplish this objective, we reviewed agencies’

implementation of the substantive provisions of title II (secs. 202 through

205) for “economically significant” rules published in the Federal Register

between March 22, 1995, and March 22, 1997.6 Because of the large number

of agencies that issue rules, we focused some of our efforts on the four

agencies that issued the greatest number of economically significant rules

and produced the greatest number of written statements during this

period: the Departments of Agriculture (USDA), Health and Human Services

(HHS), and Transportation (DOT) and the Environmental Protection Agency

(EPA).7

 We also examined pilot projects established by OMB under section

207 of UMRA and searched for court decisions resulting from the judicial

review provisions in title IV of the act.

5

The term “small governments” is defined in title I of UMRA as having the same meaning as section

601(5) of title 5, United States Code, and any tribal government. Section 601(5) generally defines a

small government as “governments of cities, counties, towns, townships, villages, school districts, or

special districts, with a population of less than fifty thousand . . . .”

6

According to Executive Order 12866, an economically significant rule is one that may “[h]ave an

annual effect on the economy of $100 million or more or adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs, the environment, public health or

safety, or [s]tate, local, or tribal governments or communities.”

7

Within HHS, the only agencies that issued economically significant rules during this period were the

Food and Drug Administration and the Health Care Financing Administration.

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Results in Brief The enactment of title II of UMRA appears to have had only limited direct

impact on agencies’ rulemaking actions in the first 2 years since its

implementation. Most of the economically significant rules promulgated

during UMRA’s first 2 years were not subject to the requirements of title II.

Also, title II contains exemptions that allowed agencies not to take certain

actions if they determined the actions were duplicative or not “reasonably

feasible.” The title also required agencies to take certain actions that they

already were required to take or had completed or that were already under

way.

Written statements were not on file at CBO for 80 of the 110 economically

significant rules promulgated in the first 2 years of UMRA’s implementation.

We concluded that UMRA did not require written statements for 78 of these

80 rules. Some of the rules did not have an associated notice of proposed

rulemaking. Many did not impose an enforceable duty other than as a

condition of federal financial assistance or as a duty arising from

participation in a voluntary program. Other rules did not result in

“expenditures” of $100 million by state, local, and tribal governments, in

the aggregate, or by the private sector in any 1 year. The two rules that we

believe should have had written statements on file at CBO but did not were

EPA’s proposed rules establishing national ambient air quality standards for

ozone and particulate matter. Nevertheless, these rules appeared to satisfy

the substantive UMRA written statement requirements.

The written statements that agencies prepared for 30 of the economically

significant rules appeared to meet most of the UMRA requirements for those

statements. In almost every case, the written statements were not separate

documents specifically prepared to comply with UMRA but were (as

permitted in the act) the rules themselves and any associated economic

analysis. Although many agencies did so, section 205 of UMRA does not

require agencies to identify in the written statement (or elsewhere in

writing) the regulatory alternatives that they considered or why one of the

alternatives was selected. Also, sections 202 and 205 (1) give agencies

discretion in how they can comply with the requirements and (2) are

similar to requirements in previous statutes and Executive Order 12866,

which was issued in 1993.

During the first 2 years of UMRA’s implementation, the requirement in

section 204 of the act that agencies develop a process to consult with

state, local, and tribal governments before promulgating any significant

federal intergovernmental mandate appears to have applied to no more

than four EPA rules and no rules from other agencies. EPA generally used a

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consultation process that was in place before UMRA was enacted to satisfy

this requirement. Other agencies also said they would use preexisting

consultation processes if they issued a significant intergovernmental

mandate.

Section 203 small government plans were not developed for any of the 73

final rules promulgated during the first 2 years of UMRA implementation.

Officials in the four agencies that we contacted said none of their final

rules had a significant or unique effect on small governments. OMB

designated three UMRA pilot programs in two agencies, but none of these

efforts appears to have been initiated because of UMRA. For example, one

of the EPA pilots was started because of requests from representatives of

two state governments. Finally, one case had been decided in which the

court refused to invalidate a rule on the basis of the plaintiff’s allegation

that the agency had not prepared an UMRA written statement.

Background The process of issuing and enforcing regulations is one of the basic tools

of government. The main elements of the federal rulemaking process are

described in section 553 of the Administrative Procedure Act (APA), which

was enacted in 1946. The APA generally requires agencies to (1) publish a

notice of proposed rulemaking in the Federal Register; (2) allow interested

persons an opportunity to participate in the rulemaking process by

providing “written data, views, or arguments”; and (3) publish the rule 30

days before it becomes effective. The notice of proposed rulemaking must

include reference to the legal authority under which the rule is proposed

and state the time, place, and nature of public rulemaking proceedings. In

some cases, agencies issue advance notices of proposed rulemaking

before a formal notice is published to receive public reaction to a rule as

early as possible.

Although the federal government has long regulated economic activity,

several major new statutes were enacted in the 1960s and 1970s that

prompted regulation in such areas as environmental quality, workplace

safety, and consumer protection. By the 1980s, an array of federal

regulations were in place that affected many of the decisions made by

businesses and by other governmental units. For some time, state, local,

and tribal governments have expressed concerns about the difficulty of

complying with federal regulatory mandates without additional resources.

Business groups have voiced similar concerns about rising costs that they

said were being imposed by federal regulations.

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Both the executive and legislative branches have responded to these

public and private sector concerns by attempting to reform the federal

regulatory process. For example, in 1981, President Reagan issued

Executive Order 12291 on “Federal Regulation,” which gave OMB the

authority to review all new regulations for consistency with administration

policies. The order also required agencies to prepare a “regulatory impact

analysis” for each major rule, describing the costs, benefits, and

alternatives to the rule. In September 1993, President Clinton issued

Executive Order 12866 on “Regulatory Planning and Review,” which,

among other things, established “principles of regulation” (e.g., requiring

agencies to “identify and assess alternative forms of regulation” and to

tailor their regulations to “impose the least burden on society”) and

specific processes that agencies had to follow (e.g., conduct cost-benefit

analyses for all economically significant rules). This executive order also

states that agencies must, wherever feasible, “seek views of appropriate

[s]tate, local, and tribal officials before imposing regulatory requirements

that might significantly or uniquely affect those governmental entities.”

In October 1993, the President issued Executive Order 12875 on

“Enhancing the Intergovernmental Partnership,” which, among other

things, requires each agency to “develop an effective process to permit

elected officials of state, local, and tribal governments to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.” The President also made

regulatory reform one of the central elements of the administration’s

National Performance Review (NPR), which is a major management reform

effort that was started in March 1993 under the direction of Vice President

Gore and is intended to identify ways to make the government work better

and cost less.

Congress has been equally active in attempting to reform the federal

regulatory process. For example, in 1980 Congress enacted the Regulatory

Flexibility Act, which requires agencies to assess the impact of their

regulations on small entities (e.g., businesses and governments) and to

publish their plans for new regulations.8

 During the 104th Congress,

numerous legislative initiatives were introduced that attempted to reform

the regulatory process. One of the first such efforts was UMRA, which was

8

For a discussion of how these requirements are working, see Regulatory Flexibility Act: Status of

Agencies’ Compliance (GAO/GGD-94-105, Apr. 27, 1994) and Regulatory Flexibility Act: Agencies’ Use

of the November 1996 Unified Agenda Did Not Satisfy Notification Requirements

(GAO/GGD/OGC-97-77R, Apr. 22, 1997). In 1996, the Small Business Regulatory Enforcement Fairness

Act amended the Regulatory Flexibility Act and, among other things, permitted judicial review of

agencies’ compliance with certain provisions in the Regulatory Flexibility Act.

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introduced as S. 1 in the Senate on January 4, 1995, and was enacted on

March 22, 1995. Title I of UMRA established new procedures designed to

ensure that Congress fully considers the potential effects of unfunded

federal mandates before imposing them on state, local, and tribal

governments or the private sector. Among other reforms, the procedures

call for CBO to provide statements to authorizing committees about

whether reported bills contain mandates and, if so, what their costs would

be.9

Title II of UMRA, entitled “Regulatory Accountability and Reform,” contains

the requirements imposed on federal agencies during the rulemaking

process, and took effect on the day the act was signed by the President.

Section 201 states that “[e]ach agency shall, unless otherwise prohibited

by law, assess the effects of [f]ederal regulatory actions on [s]tate, local,

and tribal governments, and the private sector (other than to the extent

that such regulations incorporate requirements specifically set forth in

law).” Other sections in title II require agencies to

• prepare a written statement containing specific descriptions and estimates

for any proposed rule or any final rule for which a proposed rule was

published that includes any federal mandate that may result in the

expenditure of $100 million or more in any 1 year by state, local, and tribal

governments, in the aggregate, or the private sector—one of the items

required in the written statement is a qualitative and quantitative

assessment of the anticipated costs and benefits of the federal mandate

(sec. 202);

• “identify and consider a reasonable number of regulatory alternatives” and

select the least costly, most cost-effective, or least burdensome alternative

(or explain why that alternative was not selected) for each rule for which a

written statement is prepared (sec. 205);

• develop a plan in which agencies provide notice of regulatory

requirements to potentially affected small governments; enable officials of

those governments to provide input in the development of regulatory

proposals; and inform, educate, and advise those governments on

compliance with the requirements before establishing any regulatory

requirements that might “significantly or uniquely” affect small

governments (sec. 203); and

• develop an effective process to permit elected officers of state, local, and

tribal governments (or their designees) to provide input in the

9

For an analysis of these procedures, see The Experience of the Congressional Budget Office During

the First Year of the Unfunded Mandates Reform Act, Congressional Budget Office, January 1997.

Page 6 GAO/GGD-98-30 Unfunded Mandates
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development of regulatory proposals containing significant

intergovernmental mandates (sec. 204).

Section 206 of UMRA requires the OMB Director to collect the written

statements prepared by the agencies and periodically forward them to the

CBO Director. Section 207 requires the OMB Director to establish pilot

programs in at least two agencies to test innovative and flexible regulatory

approaches to reduce the reporting and compliance burden on small

governments while meeting statutory goals and objectives. Section 208

requires the OMB Director to submit annual reports to Congress detailing

agencies’ compliance with title II of UMRA.

Title III of UMRA required the Advisory Commission on Intergovernmental

Relations to conduct a study reviewing federal mandates, and title IV

established judicial review under the act.

The committee reports for the Senate bill that ultimately resulted in UMRA

indicate that Congress was aware that the bill duplicated existing

requirements in many respects.10 For example, the report by the Senate

Committee on the Budget stated that, except for the requirement for small

government plans, “the bill will not impose new requirements to

implement in the regulatory process that are not already required under

Executive Orders 12866 and 12875.” However, the report by the Senate

Committee on Governmental Affairs stated that the “spirit and intent” of

the written statement requirements involving cost-benefit analysis were

“meant to be entirely consistent with the relevant portions of [Executive

Order] 12866.” Therefore, Congress may have expected that the scope of

these requirements would be the same as the scope of the executive order

and would cover all economically significant rules.

OMB Issued UMRA

Guidance and Reports

Within OMB, the Office of Information and Regulatory Affairs (OIRA) has

primary responsibility for monitoring agency compliance with title II of

UMRA. On March 31, 1995, the OIRA Administrator issued guidance for

implementing title II. The guidance generally repeated the requirements in

UMRA and did not further define many of the key words or phrases in the

act (e.g., “expenditure” or “significantly or uniquely affect small

governments”). The OIRA guidance noted parallels between the

requirements in (1) sections 202 and 205 of UMRA and Executive Order

12866 and (2) section 203 and the Regulatory Flexibility Act.

10See, for example, S. Rep. No. 104-1, at 17-18 (1995) and S. Rep. No. 104-2, at 17 (1995).

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OMB has issued two reports11 to Congress as required by section 208 of

UMRA, the most recent of which was published in April 1997. In that report,

OMB said that UMRA’s “overall philosophy has been embraced by [f]ederal

agencies,” as evidenced by the wide range of consultative activities

described in the report. OMB went on to say the following:

“Each agency has developed processes suited to its needs, appropriate to its mission, and

responsive to its constituents. While more work remains to be done, real progress has

occurred in both the agency infrastructure under which consultations take place, and the

way that agencies use this structure to analyze specific rules in ways that reduce costs and

increase flexibility for all levels of government, and for the private sector, in implementing

important national priorities.”

Current Regulatory Reform

Initiatives

Despite the enactment of UMRA and other reform initiatives, concerns have

continued to be raised about the effect of federal regulations on the public

and private sectors. As a result, proposed legislation to reform the federal

rulemaking process was introduced in the 105th Congress. One such

proposal is S. 981, the “Regulatory Improvement Act of 1997,” which was

introduced in June 1997.12 S. 981 addresses many of the same issues as

Executive Order 12866 and UMRA, including cost-benefit analysis,

examination of regulatory alternatives, and the transparency of the

regulatory process. However, the bill goes beyond the executive order and

UMRA’s requirements in these areas and adds some new elements to the

rulemaking process. For example, S. 981 would require agencies to

conduct cost-benefit analyses for all “major” rules that have an annual

effect on the economy of $100 million—a much broader standard than in

UMRA ($100 million in expenditures by certain regulated entities).13 S. 981

also would require agencies to conduct risk assessments and peer reviews

for these major rules, and the bill would apply to many of the independent

regulatory agencies. Neither UMRA nor Executive Order 12866 specifically

requires risk assessments or peer reviews, and neither applies to

11Agency Compliance With Title II of the Unfunded Mandates Reform Act of 1995, Report to Congress

from the Director of the Office of Management and Budget, March 22, 1996; Agency Compliance With

Title II of the Unfunded Mandates Reform Act of 1995, Second Annual Report to Congress from the

Director of the Office of Management and Budget, April 1997.

12For our comments on certain sections of this bill, see Regulatory Reform: Comments on S. 981—The

Regulatory Improvement Act of 1997 (GAO/T-GGD/RCED-97-250, Sept. 12, 1997).

13For example, a rule that involves federal expenditures of more than $100 million each year would be

considered major under S. 981 but would not be covered by UMRA unless it also required expenditures

by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or

more in any 1 year.

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independent regulatory agencies. S. 981 also contains judicial review

provisions that are not in UMRA or the executive order.

Scope and

Methodology

To address our overall objective of determining the effect of title II of UMRA

on agencies’ rulemaking actions, we reviewed the substantive

requirements in title II and determined how federal agencies have

implemented those requirements. To determine if there were rules for

which written statements under section 202 of UMRA should have been on

file at CBO but were not, we first obtained a list of rules from the

Regulatory Information Service Center (RISC)14 that its database indicated

were economically significant rules published in the Federal Register

between March 22, 1995, and March 22, 1997—the 2 years after the

effective date of title II of UMRA. We focused our review on economically

significant rules because rules that would result in the expenditure of

$100 million in any 1 year by state, local, and tribal governments or the

private sector (one of the factors necessitating an UMRA written statement)

should be a subset of those rules that are considered economically

significant according to Executive Order 12866.

We reviewed each of the economically significant rules promulgated

during this 2-year period for which written statements were not on file at

CBO and noted any explanations presented in the rules regarding why they

were not covered by UMRA’s section 202 written statement requirements.

We asked follow-up questions regarding why no written statement was on

file at CBO for these rules at OIRA and at the four agencies that had

promulgated the greatest number of both economically significant rules

and rules for which written statements were on file—USDA, HHS, DOT, and

EPA. Using this and other information that we collected about the rules, we

then determined whether any of them should have had an UMRA written

statement on file at CBO.

Certain terms in UMRA that dictate whether a written statement should be

prepared are not defined in the act, the conference report, or OMB

guidance. Therefore, we had to develop working definitions of those terms

to determine whether agencies should have prepared written statements

for the rules in our review. We defined an “expenditure” as a payment

made by either the public or private sector, but we did not include lost

income by those groups or payments made by other entities (e.g., the

14RISC is part of the General Services Administration, but works closely with OMB to provide the

president, Congress, and the public with information on federal regulatory policies. Its major project

has been to coordinate the development and publication of the Unified Agenda of Federal Regulatory

and Deregulatory Actions, which is published twice a year.

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federal government). We defined an “enforceable duty” as a responsibility

or obligatory task that can be compelled by the force of government. We

defined a “voluntary” federal program as one in which participants are

involved of their own choice.

We had to define other terms to determine whether the written statements

met UMRA requirements and whether the agencies should have prepared

small government plans under section 203 and developed consultation

processes under section 204. For example, we defined “qualitative”

cost-benefit assessments as any nonnumerical measure of the effects of a

rule (e.g., “substantial” costs or “would save many lives”). If an agency’s

written statement contained an estimate of the rule’s cost in any

forthcoming period, we considered that to be evidence of “future

compliance costs.” We used definitions that were suggested or used by

OMB or rulemaking agencies to describe the possible scope of other terms

(e.g., a “significant [f]ederal intergovernmental mandate” that triggers the

consultation process requirement in sec. 204).

We reviewed all of the written statements that were on file at CBO (plus

one statement that OMB had not forwarded to CBO) and, using a data

collection instrument modeled on our interpretation of the statute,

determined whether the statements met the specific requirements of

section 202 of UMRA and whether the statements contained information

relevant to section 205. We interviewed officials in the four selected

agencies to (1) ensure that all required elements in their statements had

been identified, (2) verify our coding of those elements, and (3) obtain

other information. To determine what consultation processes the selected

agencies established under section 204, we reviewed descriptions of those

processes in OMB’s annual reports on UMRA, interviewed officials in the four

selected agencies, and obtained and reviewed copies of any relevant

documents in those agencies.

To determine whether the agencies had developed small government plans

required under section 203, we focused on all final rules that had been

promulgated during the 2-year period included in our review and that

appeared on the list of rules that RISC identified as economically significant

or that we identified as economically significant.15 We reviewed the

15We focused on only final rules in this part of the review because section 203 of UMRA states that

agencies must develop small government plans before “establishing” certain regulatory requirements.

Although some of the 73 final rules we reviewed were not economically significant, the requirements

of section 203 of UMRA can apply to rules that have a significant or unique effect on small

governments but are not economically significant or mandates.

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Unified Agenda of Federal Regulatory and Deregulatory Actions16 to

determine whether the agencies had previously identified the rules as

having an effect on small governments. We also obtained comments from

officials in the Small Business Administration’s (SBA) Office of Advocacy

on whether they believed that any of the final rules would have an effect

on small governments.17 Finally, we asked officials in each of the four

selected agencies whether they had developed small government plans.

To determine the status of the pilot programs established by OMB under

section 207, we interviewed appropriate officials in the two agencies with

such pilots and reviewed any available documentation for those pilots. We

also conducted a legal review to determine whether any judicial decisions

had been issued regarding agencies’ compliance with the written

statement and small government plan requirements of UMRA. However, we

did not identify cases that might have been filed with the courts regarding

UMRA compliance but that had not yet been decided. We did not validate all

of the databases we used in this review.

The methodology we used in this review was not designed to identify all of

the possible effects that UMRA may have had on agencies’ rulemaking

actions. For example, we did not attempt to determine whether UMRA

prevented agencies from proposing rules with significant mandates or

caused them to eliminate certain burdensome effects that otherwise would

have been contained in the rules that were proposed.

Although we attempted to determine whether agencies’ written statements

satisfied the basic requirements of sections 202 and 205 of UMRA, we did

not assess the quality of the agencies’ economic analyses prepared to

satisfy these provisions.18 For example, although we determined whether

the written statements contained qualitative and quantitative assessments

of the anticipated costs and benefits of a federal mandate, we did not

attempt to determine whether an agency’s economic analysis used sound

economic assumptions or methodologies. Neither did we determine

whether all relevant quantitative and qualitative costs and benefits had

been identified or whether the alternatives had been adequately

16The Unified Agenda is issued twice a year by RISC and is a compendium of executive and

independent agencies’ regulatory activities that are being developed, planned for the future, or

completed.

17We asked this office to review the rules because section 612 of the Regulatory Flexibility Act requires

SBA’s Chief Counsel for Advocacy to monitor agency compliance with the UMRA requirements. One of

the small entities that UMRA was designed to protect is small governments.

18In a forthcoming report, we will discuss in greater detail the economic analyses that agencies used to

satisfy the requirements.

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considered. Any comments we received from officials in the four selected

agencies are not generalizable to other federal agencies.

We conducted our work between February 1997 and November 1997 at

OMB, USDA, HHS, DOT, and EPA headquarters in Washington, D.C., in

accordance with generally accepted government auditing standards. We

provided a draft of this report for review and comment to the Director of

OMB; the Secretaries of Agriculture, HHS, and Transportation; and the

Administrator of EPA. Their comments are reflected in the agency

comments section of this report.

Written Statements

Were Not Required for

Most Economically

Significant Rules

Section 202 of UMRA says that, unless otherwise prohibited by law,

agencies must prepare a written statement for each applicable rule before

promulgating any general notice of proposed rulemaking or any final rule

for which a notice of proposed rulemaking was published. At our request,

RISC provided us with a list of 132 rules that its database indicated were

economically significant under Executive Order 12866 and that had been

published in the Federal Register between March 22, 1995, and March 22,

1997. However, we determined that

• 22 of the rules on the RISC list were not economically significant and,

therefore, were excluded from our review;

• 3 of the rules on the RISC list had been “promulgated” before UMRA’s

March 22, 1995, effective date and, therefore, were excluded from our

review;19 and

• 3 economically significant rules had been promulgated during this period

that were not in the RISC database and, therefore, were included in our

review.

Therefore, we focused on a total of 110 economically significant rules in

this portion of our review. Section 202 written statements were on file at

CBO for 29 of these 110 rules.20 We discovered that one of the three

additional economically significant rules described what the issuing

agency had done to comply with UMRA, but OMB had mistakenly not

19Section 202 of UMRA says that agencies must prepare a written statement before promulgating any

proposed or final rule for which a notice of proposed rulemaking was published. The statute does not

define the word “promulgating,” but several court decisions unrelated to UMRA have stated that a rule

is promulgated when it is signed by the agency head and publicly disseminated. (See American

Petroleum Institute v. Costle, 609 F.2d 20 (D.C. Cir. 1979) and Industrial Union Department v.

Bingham, 570 F.2d 965 (D.C. Cir. 1977).) Therefore, a rule does not always have to be published in the

Federal Register for it to be promulgated.

20One of these 29 rules had no written statement on file at the start of our review, but a statement was

added after we queried OMB about its absence.

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forwarded a copy of the written statement for the rule to CBO.

21 We

included this rule with the 29 for which written statements were on file at

CBO. Subtracting these 30 rules from the 110 economically significant rules

promulgated during this 2-year period yielded a total of 80 rules that were

economically significant but for which no written statement had been

prepared. (See app. I for a list of these 80 economically significant rules

for which no written statements were on file at CBO. See app. II for a list of

the 30 rules for which written statements were on file at CBO.)

Of the 80 economically significant rules that were promulgated between

March 22, 1995, and March 22, 1997, for which no written statement was

on file at CBO, the issuing agencies frequently did not mention UMRA in the

rules. Those agencies that did mention UMRA in their rules frequently said

that the rules did not contain a federal mandate and/or did not result in

$100 million in expenditures by state, local, and tribal governments or the

private sector and, therefore, were not covered by sections 202 or 205 of

the act.

We compared the substance of these 80 economically significant rules to

the requirements in UMRA and concluded that 2 of the rules were required

to have an UMRA written statement on file at CBO. No written statements

appeared to be required for 78 of the rules for a variety of reasons as

follows.22

• One DOT rule established the light truck fuel economy standard for 1998 at

20.7 miles per gallon—the level at which Congress had required DOT to set

the standard in the Department of Transportation and Related Agencies

Appropriation Act of 1996. Because this rule incorporated requirements

that were specifically set forth in law, section 201 of UMRA allowed DOT not

to assess the rule’s effects on state, local, and tribal governments or the

private sector.

• Eighteen of the rules were not notices of proposed rulemaking or final

rules for which such notices had been published. Section 202 of UMRA

states that a written statement must be prepared before promulgating any

general notice of proposed rulemaking and before promulgating any final

rule for which a general notice of proposed rulemaking was published.

21An OMB official said that a copy of the written statement for this rule should have been submitted to

CBO, and that OMB would do so.

22Some of the rules did not appear to require a written statement for more than one reason. Also, the

number of rules that fell into each of the categories was partially a function of the order of

presentation. For example, if the “$100 million in expenditures” criterion was presented first, it would

have accounted for more of the rules and diminished the number of rules in the other categories. The

order we used generally reflected the order that the criteria were presented in UMRA.

Page 13 GAO/GGD-98-30 Unfunded Mandates
B-276598 

The rules without proposed rules included notices, advance notices of

proposed rulemaking, and interim final rulemakings. For example, HHS

issued six notices for the Medicaid and Medicare programs, each of which

had associated costs of more than $100 million, but none of which had

associated proposed rules. USDA issued a final rule involving the

implementation of several farm programs with associated costs that the

agency estimated at $36.8 billion. However, there was no notice of

proposed rulemaking for this rule.

• Forty-seven of the rules had notices of proposed rulemaking but were not

“mandates” as defined in UMRA. Section 202 of UMRA states that the written

statement requirement applies to rules that include a federal mandate,

which is defined in title I of the act as an “enforceable duty” that is not “a

condition of [f]ederal assistance” or “a duty arising from participation in a

voluntary [f]ederal program.” Three of the 47 rules did not appear to

impose an enforceable duty. For example, one USDA rule allowed the

importation of meat from Argentina and Mexico. Although USDA estimated

that the rule could cause American livestock producers to lose as much as

$190 million in income each year, the rule did not impose an enforceable

duty on those producers.23 Forty-four of the 47 rules appeared to impose

an enforceable duty, but that duty was either as a condition of federal

assistance (33 rules) or arose from participation in a voluntary program

(11 rules). For example, although USDA’s 1996 upland cotton program

regulation appeared to impose the requisite enforceable duty (that farmers

not plant cotton), the duty arose only as a condition of federal assistance.

USDA estimated that this regulation would cost the federal government

between $0.5 and $1.5 billion in 1996.24

• Twelve of the rules met all of the aforementioned standards but were

unlikely to result in expenditures of more than $100 million in any 1 year.

For example, one of the rules issued by the Food and Drug Administration

within HHS established new food labeling requirements. The rule was

considered economically significant because the agency had estimated its

benefits at more than $100 million per year. However, the agency

estimated that the rule would cost the private sector only $4 million in the

first year, and that costs would decline in subsequent years.

Figure 1 summarizes this information, showing how many of the 110

economically significant rules that were promulgated during this 2-year

23This rule also did not appear to require “expenditures” on the part of American livestock producers.

Although “expenditures” is not defined in UMRA, we did not consider lost income to be an

“expenditure.”

24For related information, see Cotton Program: Costly and Complex Government Program Needs to Be

Reassessed (GAO/RCED-95-107, June 20, 1995) and Commodity Programs: Impact of Support

Provisions on Selected Commodity Prices (GAO/RCED-97-45, Feb. 21, 1997).

Page 14 GAO/GGD-98-30 Unfunded Mandates
B-276598 

period did and did not have written statements on file at CBO, and why

many rules did not appear to require such statements.

Page 15 GAO/GGD-98-30 Unfunded Mandates
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Figure 1: Most Economically Significant Rules Did Not Appear to Require an UMRA Written Statement

Economically significant rules

promulgated between 

March 22, 1995,

and March 22, 1997

(110)

No written statement on file

 at CBO

(80)

No written

statement

required

(78)

Written

statement

required

(2)

No expenditure of $100 million

or more (12)

Enforceable duty, but voluntary 

program (11)

Enforceable duty, but as condition

 of federal assistance (33)

No enforceable duty (3)

No proposed rule (18)

Incorporates requirements specifically

set forth in law (1)

( ) Numbers in parentheses indicate rules.

Written statement on file

 at CBO

(30)

(Figure notes on next page)

Page 16 GAO/GGD-98-30 Unfunded Mandates
B-276598 

Note: One economically significant rule described what the agency had done to comply with

UMRA, but OMB had mistakenly not forwarded the rule to CBO. We included this rule with the 29

rules for which written statements were on file at CBO.

Source: GAO analysis.

Table 1 shows the number of economically significant rules for which

written statements were and were not on file at CBO and the total number

of such rules, by department or agency.

Table 1: Economically Significant

Rules and Written Statements, by

Department or Agency

Economically significant rules

Department or agency

No written

statement on

file at CBO

Written

statement on

file at CBO Total

Department of Agriculture 25 1 26

Department of Commerce 3 0 3

Department of Energy 0 1 1

Department of Health and Human

Services

16 5 21

Department of Housing and Urban

Development

4 0 4

Department of the Interior 6 0 6

Department of Justice 4 0 4

Department of Labor 4 1 5

Department of Transportation 2 4 6

Environmental Protection Agency 11 18 29

Small Business Administration 2 0 2

Social Security Administration 3 0 3

Total 80 30 110

Sources: RISC and GAO.

The two rules that we concluded should have had UMRA written statements

on file at CBO but did not were EPA’s proposed national ambient air quality

standards for ozone and particulate matter.25 As we said in our

August 1997 report on these rules, we disagree with EPA’s interpretation of

UMRA’s requirements regarding the written statements in one respect.26 EPA

2561 Fed. Reg. 65716 and 65638, December 13, 1996.

26For a full discussion of this issue, see Environmental Protection Agency: National Ambient Air

Quality Standards for Particulate Matter; Final Rule and National Ambient Air Quality Standards for

Ozone; Final Rule (GAO/OGC-97-56, Aug. 4, 1997).

Page 17 GAO/GGD-98-30 Unfunded Mandates
B-276598 

contended that a written statement was not required for these rules under

section 202 of UMRA, which states that a statement need not be prepared if

“otherwise prohibited by law.” However, although EPA was not required to

include cost estimates described in sections 202(a)(2), (3), and (4) of UMRA

because of Clean Air Act prohibitions, it was still required to identify the

provision of federal law under which rules were being promulgated and to

describe its outreach efforts with state, local, and tribal governments

under sections 202(a)(1) and (5). Nevertheless, EPA appears to have

satisfied the substantive UMRA written statement requirements.

UMRA Written

Statements Generally

Met the Act’s

Requirements

Subsection 202(a) of UMRA states that the written statements that agencies

are required to prepare for certain rules must (1) identify the provision of

federal law under which the rule is being promulgated; (2) contain a

qualitative and quantitative assessment of the anticipated costs and

benefits of the mandate; and (3) for certain rules, describe the extent of

the agency’s prior consultation with representatives of affected state,

local, and tribal governments. UMRA also says that the written statements

should contain estimates, if the agency determines they are “reasonably

feasible,” of future compliance costs; effects on the national economy; and

any disproportionate budgetary effects on particular regions,

governments, communities, or segments of the private sector.

The 30 written statements that the agencies provided to OMB during the 2

years following the enactment of UMRA were usually contained in the

preambles to the rules themselves and any associated economic analyses.

Only 2 of the 30 rules had a separate written statement prepared

specifically to comply with UMRA. About half of the remaining 28 rules had

specific sections in the preambles describing the actions that the agencies

had taken under the section 202 requirements. The UMRA sections in the

preambles were typically less than a page in length. In the other half of the

28 rules, there were no specific sections dealing with UMRA compliance.

However, the act does not require agencies to prepare a separate UMRA

written statement or a separate UMRA section. Subsection 202(c) of UMRA

states that an agency “may prepare any statement required under

subsection (a) in conjunction with or as part of any other statement or

analysis, provided that the statement or analysis satisfies the provisions of

subsection (a).”

Our analysis indicated that the written statements generally met most of

the requirements of section 202 of UMRA. All of the 30 statements identified

the provision of federal law under which the rules were being

Page 18 GAO/GGD-98-30 Unfunded Mandates
B-276598 

promulgated.27 All but one of the statements contained quantitative

cost-benefit information, and a few others did not contain information on

qualitative costs. About half of the statements contained descriptions of

the agencies’ prior consultations with state, local, and tribal government

representatives. However, there was no indication in the remaining

statements that the rules would affect those governments to the degree

that a description of their consultations was required. Subsection

202(a)(5) of UMRA states that the written statements must describe the

agency’s intergovernmental consultations “under section 204.” As will be

discussed later, section 204 may only apply to a few of the 110

economically significant rules promulgated during the 2 years after UMRA

was enacted.

Most of the written statements did not contain estimates of

disproportionate budgetary effects of the mandates on particular regions

or governments, or estimates of the effect of the mandates on the national

economy. However, in most of those cases, the rules appeared unlikely to

have such effects. Furthermore, even if the rules had budgetary or

economic effects, UMRA allows agencies to exclude those items from the

written statements if they determine that accurate estimates of those

effects are not reasonably feasible. That determination is not required to

be made in the written statement or even in writing.

Alternatives and Selection

Criteria Were Not Required

in the Written Statement

but Were Usually Present

Section 205 of UMRA states that before promulgating a rule for which a

written statement is required, agencies must “identify” and “consider” a

reasonable number of alternatives and “select” the one that is least costly,

most cost-effective, or least burdensome and that achieves the rule’s

objective. However, UMRA does not require agencies to document those

actions in the written statements that they are required to prepare under

section 202(a), or even to identify, consider, or select the alternatives in

writing. Nevertheless, all but 1 of the 30 written statements that were

submitted during the first 2 years of UMRA’s implementation included some

discussion of the regulatory alternatives that the agencies considered and

the alternatives they selected. In most cases, the number of regulatory

alternatives that the agencies considered was clear, but in other cases the

number of alternatives was more difficult to tally. For example, one of the

rules contained five basic options, each of which had four suboptions.

Therefore, it was unclear whether the agency considered 5 alternatives or

20 alternatives for this rule.

27Two of the written statements on file at CBO did not identify the provision of federal law. An OMB

official said that the rules that the agencies submitted to OMB contained this information, but OMB

had not forwarded the entire rule to CBO.

Page 19 GAO/GGD-98-30 Unfunded Mandates
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Most commonly, the agencies considered between three and seven

alternatives for each of the rules, with the types of options considered

varying widely. For example, the Department of Energy (DOE) identified

six major policy alternatives in its proposed rule on energy conservation

standards for refrigerators and freezers, including no new regulatory

action, informational action, prescriptive standards, financial incentives,

voluntary targets, and the proposed performance standards. DOE said it

selected the proposed standards as the basis of its regulatory action

because none of the other alternatives saved as much energy and all of the

other options would have required legislation. Other agencies said that

they selected the regulatory alternative being proposed because it was the

least costly and/or least burdensome option. However, in its rule on Air

Pollution Emission Standards for New Nonroad Spark Ignition Marine

Engines, EPA said that it selected the least costly, most cost-effective, or

least burdensome option, but the rule did not indicate which factor

prompted the selection.

Requirements in Sections

202 and 205 of UMRA Are

Similar to Previous

Statutory and Executive

Order Requirements

Several of the requirements in sections 202 and 205 of UMRA are similar to

the requirements in previous statutes and executive orders. For example,

for more than 50 years, the APA has required that notices of proposed

rulemaking contain “reference to the legal authority under which the rule

is proposed.” Executive Order 12866, which had been in effect for more

than 18 months by the time UMRA was enacted, requires agencies to

conduct cost-benefit analyses of economically significant proposed and

final rules, and to include in those analyses “an assessment . . . of

potentially effective and reasonably feasible alternatives to the planned

regulation . . . and an explanation why the planned regulatory action is

preferable to the identified potential alternatives.”28 Cost-benefit analyses

under the executive order are to include some of the same issues that

UMRA requires cost-benefit analyses to cover, including effects on the

economy, productivity, competitiveness, and employment. OIRA’s guidance

on the implementation of title II of UMRA notes these areas of overlap

between the executive order and the statute, and states that OIRA would

review agencies’ written statements “during our reviews conducted under

E.O. 12866.”

28Executive Order 12291, which was in effect from 1981 to 1993, also required agencies to describe

“alternative approaches that could substantially achieve the same regulatory goal at lower cost . . . .”

Page 20 GAO/GGD-98-30 Unfunded Mandates
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UMRA Did Not

Substantively Change

Agencies’

Intergovernmental

Consultation

Processes

Section 204 of UMRA requires agencies, to the extent permitted in law, to

develop an effective process to permit elected officers of state, local, and

tribal governments (or their designees) to provide meaningful and timely

input in the development of regulatory proposals containing “significant

[f]ederal intergovernmental mandates.” The UMRA conference report stated

that this requirement was included because improved communication with

these nonfederal governments is “an important part of efforts to improve

the [f]ederal regulatory process . . . .”

Although the term “federal intergovernmental mandate” is defined in title I

of UMRA,

29 the term “significant federal intergovernmental mandate” is not

defined in either the statute or the conference report. OIRA officials told us

that they also have not defined the term, but they said a “significant”

intergovernmental mandate would at least include any mandate that may

result in expenditures by state, local, and tribal governments, in the

aggregate, of $100 million or more in any 1 year. EPA’s Office of Policy,

Planning and Evaluation used exactly those words to define a significant

mandate under section 204 of UMRA in draft guidance on implementing the

act, which it issued to its regulatory steering committee and regional

regulatory contacts in August 1995.30

Only 2 of the 110 economically significant rules that were promulgated

during the first 2 years of UMRA were described as significant federal

intergovernmental mandates in OIRA’s reports on agencies’ compliance

with title II of the act. Both of the rules were issued by EPA in UMRA’s first

year of implementation.31 Our review of the other 108 rules promulgated

during this period indicated that EPA’s December 1996 proposed ozone and

particulate matter rules may have also triggered the consultation process

requirements in section 204. EPA’s cost-benefit analyses for these rules

indicate that state and local governments may incur annual costs of more

than $100 million. However, UMRA appears to require that an agency

develop only a single consultation process for all its significant federal

intergovernmental mandates. Therefore, the consultation process that EPA

29The term “[f]ederal intergovernmental mandate” is defined as a provision that would (1) impose an

enforceable duty on state, local, or tribal governments other than as a condition of federal assistance

or arising from a voluntary federal program or (2) reduce or eliminate the amount of authorized

appropriations for federal financial assistance or the control of borders by the federal government.

30EPA officials said that, as of November 1997, this draft UMRA guidance had not been made final.

31One of the rules sets performance standards for new municipal waste combustors, and the other rule

sets performance standards for new municipal solid waste landfills and emission guidelines for

existing municipal solid waste landfills to implement section 111 of the Clean Air Act. These rules were

2 of the 30 for which written statements were prepared. The other 28 rules were private sector

mandates.

Page 21 GAO/GGD-98-30 Unfunded Mandates
B-276598 

developed for the two rules identified as significant federal

intergovernmental mandates in OIRA’s reports would have met the UMRA

requirement for the ozone and particulate matter rules as well.

UMRA Consultation

Requirements Are Similar

to Previous Statutes and

Executive Orders

The requirement in section 204 of UMRA is similar to consultation

requirements that were in place at the time the act was put into effect. For

example, for more than 50 years, the APA has required agencies to “give

interested persons an opportunity to participate in the rulemaking through

submission of written data, views, or arguments . . . .” Executive Order

12866 states that, whenever feasible, agencies must “seek views of

appropriate [s]tate, local, and tribal officials before imposing regulatory

requirements that might significantly or uniquely affect those

governmental entities.” Finally, in language that closely parallels UMRA,

Executive Order 12875 requires each agency to “develop an effective

process to permit elected officials of state, local, and tribal governments to

provide meaningful and timely input in the development of regulatory

proposals containing significant unfunded mandates.”

Selected Agencies’

Consultation Processes

Were Relatively

Unchanged by UMRA

None of the four agencies that we contacted said they had changed their

intergovernmental consultation process as a result of the passage of UMRA.

For example, EPA’s August 1995 draft UMRA guidance says that agency staff

should continue to gather input from state, local, and tribal governments

using the procedures EPA developed to implement Executive Order 12875,

which had been issued nearly 2 years earlier. EPA’s guidance under that

executive order was included as an appendix to the UMRA guidance and

was updated to include references to UMRA. The guidance states that EPA’s

general policy is that the amount and type of intergovernmental

consultation for a given action should be commensurate with the extent of

the rule’s costs, complexity, and controversy. Officials in USDA, HHS, and

DOT said that, if their agencies promulgated a significant federal

intergovernmental mandate, they would use essentially the same

consultation processes to satisfy UMRA that they use to comply with the APA

and Executive Orders 12866 and 12875.

None of the Rules

Triggered the UMRA

Small Government

Plan Requirement

Section 203 of UMRA states that agencies must have developed a plan for

notifying, educating, advising, and obtaining input from small governments

before “establishing” any regulatory requirements that might “significantly

or uniquely” affect small governments. Although not defined in UMRA, we

interpreted “establishing” to mean the promulgation of final rules. Of the

Page 22 GAO/GGD-98-30 Unfunded Mandates
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132 rules that either RISC or we identified as economically significant rules

that had been promulgated during the 2 years following the enactment of

UMRA, 73 were final rules for which small government plans would have

been required if the rules had a significant or unique effect on small

governments.

We reviewed all of these 73 final rules, and none indicated that a small

government plan had been established. Fifty of these rules were in the four

agencies that we focused on in our review—USDA, HHS, DOT, and EPA.

Officials in these agencies said that none of the 50 rules would have a

significant or unique effect on small governments, and, therefore, they had

not developed small government plans for any of the rules.32 However, EPA

officials said that they had developed a generic “interim small government

agency plan” that would be tailored to any rule that the agency determines

will have a significant or unique effect on small governments.

We provided officials in SBA’s Office of Advocacy with a list of these 73

final rules. They concluded that one EPA rule on air emissions from

municipal solid waste landfills could have had a significant or unique

effect on small governments, but they could not be sure because of

incomplete information.33 We also reviewed the Unified Agenda entries for

the 73 rules to determine whether the issuing agencies had previously

indicated that the rules would have a significant economic impact on a

substantial number of small governments. If so, the rules might have also

significantly or uniquely affected those small governments. The Unified

Agenda indicated that 6 of the 73 final rules would have a significant effect

on small governments. EPA promulgated three of these six final rules.

However, EPA officials said that their assessments in the Unified Agenda

were made early in the rulemaking process, and that the rules may have

changed during that process to have less of an effect on small

governments. The officials also said that they indicate in the agenda

whether their rules will have any effect on small governments, not just a

32In its November 27, 1996, rule on financial assurance mechanisms, EPA said the rule was intended to

have a significant or unique effect on small governments. However, EPA also said that the rule was not

subject to section 203 of UMRA because it provided regulatory flexibility for local governments and

did not impose additional regulatory requirements.

33SBA officials said that most of the remaining 72 final rules would either not have a significant or

unique effect on small governments or that such an effect was unlikely.

Page 23 GAO/GGD-98-30 Unfunded Mandates
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significant or unique effect.34 The other three rules were issued by USDA,

HHS, and the Department of Labor (DOL). In the final rules, the three

agencies said that the rules would not significantly or uniquely affect small

governments.

UMRA Small Government

Plan Requirements Are

Similar to Other Statutory

Requirements

In its guidance on implementing title II of UMRA, OIRA said that the small

government plan requirement in section 203 of the act “builds upon the

policy objectives of the Regulatory Flexibility Act.” The Regulatory

Flexibility Act requires federal agencies to assess the effects of their

proposed rules on small entities, including small governments. If a

proposed or final rule has a “significant economic impact on a substantial

number of small entities,” the issuing agency must prepare and make

available to the public a regulatory flexibility analysis. This analysis is to

describe, among other things, the need for the rule, its objectives,

reporting requirements, alternatives that would minimize the impact of the

rule on small entities, and a summary of the issues raised by public

comments.35

In 1996, Congress passed the Small Business Regulatory Enforcement

Fairness Act, which amended the Regulatory Flexibility Act in several

ways. One such amendment is a requirement that EPA and the

Occupational Safety and Health Administration convene a panel soliciting

the views of affected small entities (including small governments) before

issuing any rule that has a significant impact on a substantial number of

small entities. The agencies must report on the comments of the small

entity representatives within 60 days after the panel is convened.

Pilot Programs Were

Not Started Because

of UMRA

Section 207 of UMRA requires the Director of OMB, in consultation with

federal agencies, to establish pilot programs in at least two agencies “to

test innovative, and more flexible regulatory approaches” that reduce

reporting and compliance burdens on small governments and meet overall

statutory goals and objectives. OMB’s April 1997 annual report on agencies’

compliance with title II indicated that OMB had designated three pilot

projects in two agencies—one at USDA and two at EPA.

34The introduction to the Unified Agenda states that the “small entities affected” data element indicates

whether a rule is expected to have a “significant economic impact on a substantial number of ‘small

entities.’” However, in the preamble to its section in the Unified Agenda, EPA said “we have identified

those rules that will, if promulgated, impose any requirements on any small entities by indicating in the

‘Small Entities Affected’ section the category of small entities that will be subject to the rule

requirements.”

35For a discussion of how this act has been implemented, see Regulatory Flexibility Act: Status of

Agencies’ Compliance (GAO/GGD-94-105, Apr. 27, 1994).

Page 24 GAO/GGD-98-30 Unfunded Mandates
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The USDA pilot involved consolidation of its regulations on grants and loans

for water and waste disposal from the former Rural Electrification

Administration and the former Farmers Home Administration into the

Rural Utilities Service. This consolidation was initiated because of a

reorganization of responsibilities within USDA. Legislation implementing

the new organizational structure was passed and signed into law in

October 1994.36 In a final rule related to the pilot, USDA said that by

combining the water and waste loan and grant regulations into one

regulation, “[u]necessary and burdensome requirements for entities

seeking . . . financial assistance under the program are eliminated.”37

One of the two pilots at EPA is an initiative by EPA’s Office of Enforcement

and Compliance Assurance to develop a policy on flexible state

enforcement responses to small community violations. Under the final

policy, issued in November 1995, EPA will defer to a state’s decision to

provide a small community compliance assistance and waive part or all of

the noncompliance penalty if the community is working diligently and in

good faith to achieve compliance. An EPA official said that the project was

started because representatives of Oregon and Idaho came to EPA in 1994

and requested that the agency develop a program to work with small local

governments to identify environmental compliance problems and develop

new methods of addressing them. At the time of our review, only Oregon

and Nebraska had active small community environmental compliance

assistance programs; however, according to the EPA official, five additional

states had applied to participate.

The other EPA pilot involves a number of activities in which the agency

worked with the Environmental Council of the States (ECOS) to facilitate

its interactions with state and local governments. According to OMB’s 1997

annual report on title II compliance, one of the key priorities of the effort

was to promote flexible approaches to regulatory compliance for small

governments. On June 17, 1996, EPA’s Small Town Task Force presented to

the EPA Administrator its final report containing more than 39

recommendations developed during the previous 2 years. On March 17,

1997, the ECOS Small Town Task Force submitted a work plan to EPA to

implement the recommendations. An EPA official said that some of the

tasks in the work plan had been completed at the time of our review and

that others were ongoing.

36Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Public

Law No. 103-354, 108 Stat. 3178 (1994).

3762 Fed. Reg. 33462, June 19, 1997.

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In its March 1995 guidance on implementing title II of UMRA, OMB noted that

agencies may already be considering efforts similar to the pilots as part of

the administration’s NPR initiative, which had started 2 years before UMRA

was enacted. In fact, the three pilots appear related or similar to that

initiative in some respects. For example, USDA noted in its final rule related

to the pilot that it was part of the NPR effort. The reorganization that USDA

officials said prompted their pilot was recommended by the NPR in its

September 1993 report.38 The EPA pilots appear related to an NPR

recommendation that EPA improve environmental protection through

increased flexibility for local governments. In our December 1994 report

assessing the implementation of the recommendation, we noted that EPA

had already formed its Small Town Task Force Advisory Committee to

advise the EPA Administrator and recommend ways to increase flexibility

for local governments.39 We also noted that EPA had established pilot

projects in three states, one of which involved reviewing a community’s

environmental risks and developing priorities to target the most pressing

environmental needs. However, the impetus for EPA’s pilot on small

community violations appears to have been actions by two states’

representatives, not NPR or UMRA.

Although OMB appears to have satisfied UMRA’s requirement to establish

pilot programs in at least two agencies, two of the three initiatives

previously mentioned began before the enactment of UMRA. Furthermore,

officials in both USDA and EPA indicated that the three initiatives were not

started because of the passage of UMRA.

One Federal Court

Decision Involved

Agencies’ Compliance

With the Written

Statement

Requirements

Title IV of UMRA states that agencies’ compliance with the requirements to

prepare the written statement under section 202 and the small government

plan under section 203 are subject to limited judicial review. If an agency

fails to prepare the written statement or the plan, a court may compel the

agency to do so. However, the absence or inadequacy of a statement or a

plan cannot be used as the basis for invalidating the rule.

We identified one court case that had been decided in which the plaintiff

alleged violations of UMRA as well as other laws by DOL in its rulemaking

38From Red Tape to Results: Creating a Government That Works Better and Costs Less, report of the

National Performance Review, Vice President Al Gore, September 7, 1993.

39Management Reform: Implementation of the National Performance Review’s Recommendations

(GAO/OCG-95-1, Dec. 5, 1994).

Page 26 GAO/GGD-98-30 Unfunded Mandates
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process.40 Regarding UMRA, the plaintiffs alleged that because DOL issued its

final rule of December 20, 1996, without preparing any of the regulatory

analyses and impact statements required by section 202, the court should

declare the rule invalid. In accordance with section 401(a)(3) of UMRA, the

court refused to grant the plaintiff’s requested relief and stated that the

inadequacy or failure to prepare the written statement could not be used

as a basis for staying, enjoining, invalidating, or otherwise affecting the

agency rule.

Conclusions Our review of federal agencies’ implementation of title II of UMRA indicates

that this title of the act has had little direct effect on agencies’ rulemaking

actions during the first 2 years of its implementation. We reached this

conclusion for three reasons.

First, many of the UMRA requirements did not appear to apply to most

economically significant rules promulgated during this period. For

example, we concluded that 78 of the 80 economically significant rules for

which section 202 written statements were not on file at CBO did not

require such a statement under the terms of the statute. Economically

significant rules that may cost individuals or businesses more than

$100 million per year are not covered by UMRA’s requirement to develop a

written statement if they (1) do not have an associated notice of proposed

rulemaking; (2) do not impose an enforceable duty; (3) impose such a duty

but only as a condition of federal assistance or as part of a voluntary

program; or (4) do not involve an expenditure of $100 million in any 1 year

by the private sector or by state, local, and tribal governments. Because

section 205 of UMRA only applies to those rules for which a written

statement is required, its reach is equally limited. The remaining two rules,

which we believe should have had written statements, were EPA rules that

complied with the substance of the UMRA written statement requirements.

Sections 203 and 204 of UMRA also appeared to have had little impact on

agencies’ rulemaking actions. Agencies did not prepare small government

plans for any of the 73 final rules that we examined. Officials in the 4

agencies that we contacted—USDA, HHS, DOT, and EPA—said that none of the

50 final rules within this group that they promulgated had a significant or

unique effect on small governments requiring a section 203 small

government plan. Officials in SBA’s Office of Advocacy generally concurred

with the agencies’ conclusions. OIRA and federal agencies said that only 2

40Associated Builders & Contractors, Inc., et al v. Alexis Herman, Secretary of Labor, and John Fraser,

Acting Administrator of the Wage and Hour Division, U.S. Department of Labor, No. 96-1490 (SS), 1997

U.S. Dist. LEXIS 11991, at *1 (D.D.C. 1997).

Page 27 GAO/GGD-98-30 Unfunded Mandates
B-276598 

of the 110 rules promulgated during the first 2 years of UMRA were

significant federal intergovernmental mandates that required the

development of a consultation process under section 204. Both of the rules

were issued by EPA. Although two other EPA rules might have been

significant intergovernmental mandates, the consultation process that the

agency used for the other rules would satisfy the section 204 requirement

for any mandates the agency developed.

The second reason UMRA does not appear to have had much effect on the

agencies’ rulemaking actions is that it does not require agencies to take the

actions required in the statute if the agencies determine that the actions

are duplicative of other actions or that accurate estimates of the effect of

the rule are not feasible. For example, section 202(c) of UMRA says that the

written statement required in section 202(a) may be prepared “in

conjunction with or as part of any other statement or analysis” as long as

that statement or analysis contains the required information. Because the

agencies’ rules commonly contain the information that section 202(a)

requires in the written statements, the agencies only rarely prepared a

separate UMRA written statement. Subsection 202(a)(3) of UMRA says

agencies’ written statements must contain estimates of future compliance

costs and any disproportionate budgetary effects “if and to the extent that

the agency determines that accurate estimates are reasonably feasible.”

Subsection 202(a)(4) says that the written statements must contain

estimates of the effect on the national economy “if and to the extent that

the agency in its sole discretion determines that accurate estimates are

reasonably feasible and that such effect is relevant and material.”

Therefore, an agency can omit these estimates from any written statement

if it considers them inaccurate, unfeasible, or, in the case of subsection

202(a)(4), irrelevant or immaterial.

The third reason UMRA does not appear to have had much effect on the

agencies’ rulemaking actions is that the act requires agencies to take

certain actions that are either identical or similar to actions that they were

already required to take or had completed, or that were under way.

Because the scope of the previous requirements was usually much broader

than the UMRA requirements, the following UMRA requirements did not

appear to significantly alter the agencies’ rulemaking actions:

• Section 202(a) of UMRA requires agencies to prepare a written statement

containing an assessment of the costs and benefits of proposed federal

mandates. Section 206 of UMRA says that the Director of OMB must collect

the written statements from the agencies. However, Executive Order

Page 28 GAO/GGD-98-30 Unfunded Mandates
B-276598 

12866, which was issued more than a year before UMRA, already required

agencies to provide OIRA with assessments of the costs and benefits of all

economically significant proposed rules, including some rules that were

not mandates.

• Section 205 of UMRA requires agencies to identify a number of regulatory

alternatives for proposed mandates and to select the least costly, most

cost-effective, or least burdensome alternative that achieves the objectives

of the rules. However, Executive Order 12866 already required agencies to

identify regulatory alternatives and explain why the planned regulatory

action is preferable to the other alternatives for all economically

significant rules, including some rules that were not mandates. The

executive order also says that agencies’ regulations should be

cost-effective and impose the least burden on society.

• Section 204 of UMRA requires agencies to develop a process to consult with

representatives of state, local, and tribal governments. However, the basic

elements of the UMRA consultation process can be traced to the notice and

comment requirements in the APA, which was enacted nearly 50 years

before UMRA. More specifically, Executive Order 12866 requires agencies to

seek the views of state, local, and tribal officials before imposing

regulatory requirements that might significantly or uniquely affect them.

Executive Order 12875, which was also issued more than a year before

UMRA, requires agencies to “develop an effective process to permit elected

officials of state, local, and tribal governments to provide meaningful and

timely input in the development of regulatory proposals containing

significant unfunded mandates”—language that is almost identical to

section 204 of UMRA.

• Officials in the agencies where the section 207 pilot programs were

established said that the pilots were not initiated to satisfy UMRA

requirements. Two of the pilots began before the enactment of UMRA, and

all three pilots were similar or related to initiatives already under way as

part of the administration’s NPR management reform initiative.

The committee reports for the Senate bill that led to the adoption of UMRA

indicate that Congress was aware that the bill duplicated existing

requirements in many respects. For example, the report by the Senate

Committee on the Budget stated that, except for the requirement for small

government plans, “the bill will not impose new requirements for agencies

to implement in the regulatory process . . . .”

Regulatory reform legislation currently under consideration by Congress

also contains some requirements that are similar to those in Executive

Order 12866 and existing statutes. For example, S. 981 would require

Page 29 GAO/GGD-98-30 Unfunded Mandates
B-276598 

agencies to conduct cost-benefit analyses for what are essentially

economically significant rules and, as part of those analyses, to evaluate a

reasonable number of alternative approaches reflecting the range of

regulatory options that would achieve the objective of the statute.

Therefore, if agencies are already performing those analyses to comply

with the executive order, codification of the requirements through S. 981

would not impose significant additional requirements for those rules.

However, the provisions in S. 981 are different from existing requirements

in several other respects. First, the bill would cover more rules than are

covered by UMRA or Executive Order 12866. For example, S. 981 would

cover many independent regulatory agencies, whereas both UMRA and the

executive order exclude independent regulatory agencies. Also, the

analytical requirements in S. 981 would be broader than those in UMRA.

UMRA requires that cost-benefit analyses be conducted for only a small

group of rules that contain a narrowly defined mandate and that may

result in expenditures of $100 million in any 1 year by state, local, or tribal

governments, in the aggregate, or the private sector. S. 981, on the other

hand, generally would cover all rules that have an annual effect on the

economy of $100 million or that the Director of OMB declares to be a major

rule.

S. 981 also would address a number of topics that are not addressed by

either UMRA or Executive Order 12866. For example, the bill includes

requirements that agencies conduct risk assessments for certain rules and

have those risk assessments and any cost-benefit analyses peer reviewed.

Neither UMRA nor the executive order contain such requirements. These

requirements in S. 981 could also have the effect of improving the quality

of the regulatory analyses that agencies are currently required to perform

under Executive Order 12866.

Agency Comments

and Our Evaluation

We sent a draft of this report for review and comment to the Director of

OMB; the Secretaries of USDA, HHS, and DOT; and the Administrator of EPA.

OMB, USDA, HHS, and DOT officials said they had no comments on the draft

report.

On December 24, 1997, EPA’s Director of the Office of Regulatory

Management and Evaluation suggested several changes in the draft report.

First, the Director said the final report should clarify that UMRA has not had

much effect on agencies’ rulemaking actions because some rules were not

subject to UMRA or because agencies already had systems to address the

Page 30 GAO/GGD-98-30 Unfunded Mandates
B-276598 

act’s requirements, not because the agencies are ignoring UMRA. Therefore,

he suggested changing the title of the report to “Agencies’ Rulemaking

Actions Comply With UMRA.” Second, he said that EPA continued to

disagree with our conclusion that written statements were required for the

national ambient air quality standards for ozone and particulate matter,

and that the report should clarify that the only areas of disagreement

regarding these rules involved two of the five written statement

requirements. Finally, he said the title of appendix I was misleading and

should be clarified by adding a phrase or a footnote to the title to make it

clear that written statements were not required for the rules in the table.

In response to EPA’s first comment, we clarified the Results in Brief section

of this final report to more clearly indicate that we concluded title II of

UMRA did not have much effect on agencies’ rulemaking actions because of

how many of the act’s requirements were written, not because of any

systematic failure on the part of rulemaking agencies. However, we did not

change the title of the report because we believe the current title more

accurately reflects the report’s message than EPA’s suggested change.

Regarding EPA’s second comment, we changed this final report to clarify

that we disagreed with EPA’s interpretation of UMRA’s requirements “in one

respect,” and we added a sentence noting that the disagreement centered

on two of the five written statement requirements. Finally, in response to

EPA’s third comment, we added a brief discussion after the title of

appendix I indicating that, with the exception of the ozone and particulate

matter rules, we did not believe that written statements were required for

the listed rules.

We are sending copies of this report to the Director of OMB; the Secretaries

of USDA, HHS, and DOT; and the Administrator of EPA. We are also sending

copies of this report to the Chairmen and Ranking Minority Members of

(1) the House Committee on Government Reform and Oversight; (2) that

Committee’s Subcommittee on National Economic Growth, Natural

Resources, and Regulatory Affairs; and (3) the House Committee on the

Judiciary, Subcommittee on Commercial and Administrative Law. We will

make copies available to others on request.

Page 31 GAO/GGD-98-30 Unfunded Mandates
B-276598 

Major contributors to this report are listed in appendix III. Please contact

me on (202) 512-8676 if you or your staff have any questions concerning

this report.

L. Nye Stevens

Director, Federal Management

 and Workforce Issues

Page 32 GAO/GGD-98-30 Unfunded Mandates
Page 33 GAO/GGD-98-30 Unfunded Mandates
Contents

Letter 1

Appendix I 

Economically

Significant Rules

Without Written

Statements

36

Appendix II 

Economically

Significant Rules With

Written Statements

43

Appendix III 

Major Contributors to

This Report

46

Tables Table 1: Economically Significant Rules and Written Statements,

by Department or Agency

17

Table I.1: Economically Significant Rules Promulgated in the

First 2 Years of UMRA Title II Implementation for Which No

Written Statements Were on File at CBO

36

Table II.1: Economically Significant Rules Promulgated in the

First 2 Years of UMRA Title II Implementation for Which Written

Statements Were on File at CBO

43

Figure Figure 1: Most Economically Significant Rules Did Not Appear to

Require an UMRA Written Statement

16

Page 34 GAO/GGD-98-30 Unfunded Mandates
Contents

Abbreviations

APA Administrative Procedure Act

CBO Congressional Budget Office

DOE Department of Energy

DOL Department of Labor

DOT Department of Transportation

ECOS Environmental Council of States

EPA Environmental Protection Agency

HHS Department of Health and Human Services

NPR National Performance Review

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

RISC Regulatory Information Service Center

SBA Small Business Administration

UMRA Unfunded Mandates Reform Act of 1995

USDA United States Department of Agriculture

Page 35 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

The following table lists, by department or agency and office, the 80

economically significant rules promulgated between March 22, 1995, and

March 22, 1997, for which no written statements were on file at CBO. We

believe that no written statements were required for all but two of these

rules—EPA’s national ambient air quality standards for ozone and

particulate matter. Even for these two rules, EPA appeared to have met the

substantive written statement requirements of UMRA.

The table also presents the date each of these rules was published in the

Federal Register. UMRA’s written statement requirements apply to rules

promulgated after March 22, 1995. Although some of these rules may have

been promulgated before publication in the Federal Register, none were

promulgated before March 22, 1995.

Table I.1: Economically Significant Rules Promulgated in the First 2 Years of UMRA Title II Implementation for Which No

Written Statements Were on File at CBO

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Department of Agriculture

Animal and Plant Health Inspection Service Karnal Bunt Disease;

Domestic Plant-related

Quarantine

Oct. 4, 1996 Final

Importation of Animals and

Animal Products

Apr. 18, 1996 Proposed

Commodity Credit Corporation Environmental Quality

Incentives Program

Oct. 11, 1996 Proposed

Farm Service Agency 1996 Farm Bill:

Implementation of Farm

Program Provisions

July 18, 1996 Final

1986-1990 Conservation

Reserve Program

May 8, 1995 Interim final

1995 Crop Sugarcane and

Sugar Beet Price Support

Loan Rates

Apr. 10, 1996 Final

Amendments to the Peanut

Poundage Quota

Regulations

July 16, 1996 Interim final

1995 Upland Cotton

Program

June 16, 1995 Final

1995 Rice Acreage

Reduction Program

Aug. 18, 1995 Final

1995 Wheat and Feed Grain

Acreage Reduction Program

Sept. 18, 1995 Final

1996 Upland Cotton

Program

Oct. 10, 1995 Proposed

(continued)

Page 36 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

1997 Crop Peanut National

Poundage Quota

Nov. 25, 1996 Proposed

Conservation Reserve

Program—Long-Term Policy

Sept. 23, 1996 Proposed

Conservation Reserve

Program—Long-Term Policy

Feb. 19, 1997 Final

Disaster Payment Program

for 1990-1994

Oct. 10, 1995 Final

Federal Crop Insurance Corporation General Crop Insurance

Regulations

Nov. 8, 1995 Proposed

General Administrative

Regulations; Federal Crop

Insurance Reform Act of

1994

Aug. 20, 1996 Final

Catastrophic Risk

Protection Endorsement

Aug. 20, 1996 Final

General Crop Insurance

Regulations

Dec. 7, 1995 Final

Food and Nutrition Service (formerly Food

and Consumer Service)

Child and Adult Care Food

Program; Improved

Targeting of Day Care

Home Reimbursements

Jan. 7, 1997 Interim final

Food Stamp Program:

Certification Provisions of

the Mickey Leland

Childhood Hunger Relief Act

Oct. 17, 1996 Final

Food Safety and Inspection Service Use of the Term “Fresh” on

the Labeling of Raw Poultry

Products

Aug. 25, 1995 Final

Foreign Agricultural Service Commodity Credit

Corporation Supplier Credit

Guarantee Program

July 1, 1996 Interim final

Dairy Tariff-Rate Import

Quota Licensing

Oct. 9, 1996 Final

Dairy Tariff-Rate Import

Quota Licensing

Jan. 18, 1996 Proposed

Department of Commerce

Bureau of Export Administration Exports of Certain California

Crude Oil

Mar. 27, 1995 Final

National Oceanic and Atmospheric

Administration

Northeast Multispecies

Fishery: Amendment 7

Mar. 5, 1996 Proposed

Northeast Multispecies

Fishery: Amendment 7

May 31, 1996 Final

Department of Health and Human Services

(continued)

Page 37 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Food and Drug Administration Substances Prohibited

From Use in Animal Food or

Feed

Jan. 3, 1997 Proposed

Medical Devices: Current

Good Manufacturing

Practices

Oct. 7, 1996 Final

Food Labeling, Nutrition

Labeling, Small Business

Exemption

Aug. 7, 1996 Final

Health Care Financing Administration Medicaid Program:

Limitations on Aggregate

Payments to

Disproportionate Share

Hospitals: Federal Fiscal

Year 1996

Sept. 23, 1996 Notice

Medicaid Program:

Limitations on Aggregate

Payments to

Disproportionate Share

Hospitals: Federal Fiscal

Year 1996

May 9, 1996 Notice

Medicare Program: Monthly

Actuarial Rates and Monthly

Supplementary Medical

Insurance Premium Rate

Beginning January 1, 1996

Oct. 16, 1995 Notice

Medicaid Program: Final

Limitations on Aggregate

Payments to

Disproportionate Share

Hospitals: Federal Fiscal

Year 1995

Sept. 8, 1995 Notice

Medicare Program:

Schedule of Limits on Home

Health Agency Costs per

Visit for Cost Recording

Periods Beginning on or

After July 1, 1996

July 1, 1996 Notice

Medicare Program:

Revisions to Payment

Policies Under the

Physician Fee Schedule for

Calendar Year 1997

July 2, 1996 Proposed

Medicare Program: HHS’

Approval of NAIC

Statements Relating to

Duplication of Medicare

Benefits

June 12, 1995 Notice

(continued)

Page 38 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Medicare Program:

Changes to the Hospital

Inpatient Prospective

Payment Systems and

Fiscal Year 1996 Rates

Sept. 1, 1995 Final

Medicare Program:

Changes to the Hospital

Inpatient Prospective

Payment Systems and

Fiscal Year 1996 Rates

June 8, 1995 Proposed

Medicare Program:

Revisions to Payment

Policies Under the

Physician Fee Schedule for

Calendar Year 1997

Nov. 22, 1996 Final

Medicare Program:

Physician Financial

Relationships With, and

Referrals to, Health Care

Entities That Furnish Clinical

Laboratory Services and

Financial Relationship

Reporting Requirements

Aug. 14, 1995 Final

Medicare Program:

Changes to the Hospital

Inpatient Prospective

Payment Systems and

Fiscal Year 1997 Rates

Aug. 30, 1996 Final

Medicare Program:

Changes to the Hospital

Inpatient Prospective

Payment Systems and

Fiscal Year 1997 Rates

May 31, 1996 Proposed

Department of Housing and Urban Development

Office of the Assistant Secretary for Housing Sale of HUD-Held Single

Family Mortgages

Jan. 24, 1997 Final

Sale of HUD-Held Single

Family Mortgages

Aug. 31, 1995 Interim final

Single Family Mortgage

Insurance-Loss Mitigation

Procedures

July 3, 1996 Interim final

Office of the Secretary Requirements for

Notification, Evaluation, and

Reduction of Lead-Based

Paint Hazards in Federally

Owned Residential Property

and Housing Receiving

Federal Assistance

June 7, 1996 Proposed

(continued)

Page 39 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Department of Justice

Drug Enforcement Agency Implementation of the

Domestic Chemical

Diversion Control Act of

1993 (P.L. 103-200)

June 22, 1995 Final

Immigration and Naturalization Service Inspection and Expedited

Removal of Aliens;

Detention and Removal of

Aliens; Conduct of Removal

Proceedings: Asylum

Procedures

Jan. 3, 1997 Proposed

Charging of Fees for

Services at Land Border

Ports-of-Entry

Aug. 7, 1995 Final

Inspection and Expedited

Removal of Aliens;

Detention and Removal of

Aliens; Conduct of Removal

Proceedings: Asylum

Procedures

Mar. 6, 1997 Interim final

Department of Labor

Employment and Training Administration Disaster Unemployment

Assistance Program

May 11, 1995 Interim final

Wage and Hour Division Service Contract; Labor

Standards for Federal

Service Contracts

May 2, 1996 Proposed

Service Contract Act; Labor

Standards for Federal

Service Contracts

Dec. 30, 1996 Final

Service Contract Act; Labor

Standards for Federal

Service Contracts

Oct. 25, 1996 Proposed

Department of the Interior

Fish and Wildlife Service Migratory Bird Hunting;

Proposed 1997-98

Migratory Game Bird

Hunting Regulations

(Preliminary) With Requests

for Indian Tribal Proposals

Mar. 13, 1997 Proposed

Migratory Bird Hunting:

Final Frameworks for

Late-Season Migratory Bird

Hunting Regulations

Sept. 26, 1996 Final

(continued)

Page 40 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Migratory Bird Hunting;

Proposed 1996-97

Migratory Game Bird

Hunting Regulations

(Preliminary) With Requests

for Indian Tribal Proposals

Mar. 22, 1996 Proposed

Migratory Bird Hunting:

Final Frameworks for

Late-Season Migratory Bird

Hunting Regulations

Sept. 27, 1995 Final

Migratory Bird Hunting:

Final Frameworks for

Early-Season Migratory Bird

Hunting Regulations

Aug. 29, 1995 Final

Migratory Bird Hunting:

Final Frameworks for

Early-Season Migratory Bird

Hunting Regulations

Aug. 29, 1996 Final

Department of Transportation

National Highway Traffic Safety Administration Light Truck Average Fuel

Economy Standard, Model

Year 1998

Apr. 3, 1996 Final

Office of the Secretary Domestic Passenger

Manifest Information

Mar. 13, 1997 Advance Notice of

Proposed Rulemaking

Environmental Protection Agency

Air and Radiation National Emission

Standards for Air Pollutants:

Petroleum Refineries

Aug. 18, 1995 Final

Federal Operating Permits

Program

Apr. 27, 1995 Proposed

Control of Air Pollution From

New Motor Vehicles

Oct. 10, 1995 Proposed

Federal Operating Permits

Program

July 1, 1996 Final

NAAQS for Particulate

Matter

Dec. 13, 1996 Proposed

NAAQS for Ozone Dec. 13, 1996 Proposed

Pollution Prevention and Toxic Substances Lead: Requirements for

Lead-Based Paint Activities

Aug. 29, 1996 Final

Solid Waste & Emergency Response Identification and Listing of

Hazardous Waste

Dec. 21, 1995 Proposed

Financial Assurance

Mechanisms

Nov. 27, 1996 Final

(continued)

Page 41 GAO/GGD-98-30 Unfunded Mandates
Appendix I 

Economically Significant Rules Without

Written Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Corrective Action for

Releases From Solid Waste

Management Units

May 1, 1996 Advance Notice of

Proposed Rulemaking

Requirements for

Management of Hazardous

Contaminated Media

Apr. 29, 1996 Proposed

Small Business Administration

Small Business Administration Sale of Unguaranteed

Portions of Loan

Feb. 26, 1997 Proposed

Small Business Size

Regulations;

Non-Manufacturer Rule

May 26, 1995 Proposed

Social Security Administration

Social Security Administration Cycling Payment of Social

Security Benefits

Feb. 11, 1997 Final

Cycling Payment of Social

Security Benefits

Jan. 26, 1996 Proposed

Determining Disability for an

Individual Under Age 18 —

Supplemental Security

Income

Feb. 11, 1997 Interim final

Sources: RISC and GAO.

Page 42 GAO/GGD-98-30 Unfunded Mandates
Appendix II 

Economically Significant Rules With Written

Statements

The following table lists, by department or agency and office, the 30

economically significant rules promulgated between March 22, 1995, and

March 22, 1997, for which written statements were on file at CBO. The table

also presents the date each of these rules was published in the Federal

Register. UMRA’s written statement requirements apply to rules

promulgated after March 22, 1995. Although some of these rules may have

been promulgated before publication in the Federal Register, none were

promulgated before March 22, 1995.

Table II.1: Economically Significant Rules Promulgated in the First 2 Years of UMRA Title II Implementation for Which

Written Statements Were on File at CBO

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Department of Agriculture

Food Safety and Inspection Service Pathogen Reduction;

Hazard Analysis and

Critical Control Point

(HACCP) Systems

July 25, 1996 Final

Department of Energy

Office of Energy Efficiency and Renewable

Energy

Energy Conservation

Program for Consumer

Products: Proposed

Rulemaking Regarding

Energy Conservation

Standards for Refrigerators,

Refrigerator-Freezers, and

Freezers

July 20, 1995 Proposed

Department of Health and Human Services

Food and Drug Administration Regulations Restricting the

Sale and Distribution of

Cigarettes and Smokeless

Tobacco Products to

Protect Children and

Adolescents

Aug. 11, 1995 Proposed

Regulations Restricting the

Sale and Distribution of

Cigarettes and Smokeless

Tobacco Products to

Protect Children and

Adolescents

Aug. 28, 1996 Final

Procedures for the Safe and

Sanitary Processing and

Importing of Fish and

Fishery Products

Dec. 18, 1996 Final

Mammography Quality

Standards

Apr. 3, 1996 Proposed

(continued)

Page 43 GAO/GGD-98-30 Unfunded Mandates
Appendix II 

Economically Significant Rules With Written

Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Health Care Financing Administration Medicaid Program;

Payment for Covered

Outpatient Drugs Under

Drug Rebate Agreements

With Manufacturers

Sept. 19, 1995 Proposed

Department of Labor

Occupational Health and Safety Administration Occupational Exposure to

Methylene Chloride

Jan. 10, 1997 Final

Department of Transportation

National Highway Traffic Safety Administration Federal Motor Vehicle

Safety Standards; Head

Impact Protection

Aug. 18, 1995 Final

Federal Motor Vehicle

Safety Standards; Child

Restraint Systems; Tether

Anchorages and

Anchorage Systems

Feb. 20, 1997 Proposed

United States Coast Guard Operational Measures to

Reduce Oil Spills from

Existing Tank Vessels

Nov. 3, 1995 Proposed

Vessel Response Plan Jan. 12, 1996 Final

Environmental Protection Agency

Air and Radiation Acid Rain Phase II Nitrogen

Oxides Emission Reduction

Program

Oct. 10, 1995 Proposed

Acid Rain Phase II Nitrogen

Oxides Emission Reduction

Program

Dec. 19, 1996 Final

Revisions to the Federal

Test Procedures for

Emissions From Motor

Vehicles

Oct. 22, 1996 Final

Control of Emissions of Air

Pollution From Highway

Heavy-Duty Engines

June 27, 1996 Proposed

Certification Standards for

Deposit Control Gasoline

July 5, 1996 Final

Federal Standards for

Marine Tank Vessel

Loading and Unloading

Program

Sept. 19, 1995 Final

Air Emissions From

Municipal Solid Waste

Landfills

Mar. 12, 1996 Final

(continued)

Page 44 GAO/GGD-98-30 Unfunded Mandates
Appendix II 

Economically Significant Rules With Written

Statements

Department or agency and office Title

Date published in the

Federal Register Rulemaking stage

Standards of Performance

for New Stationary Sources:

Municipal Waste

Combustors

Dec. 19, 1995 Final

Emission Standards for New

Locomotives and New

Engines Used in

Locomotives

Feb. 11, 1997 Proposed

Air Pollution Emission

Standards for New Nonroad

Spark Ignition Marine

Engines

Oct. 4, 1996 Final

Pollution Prevention and Toxic Substances Pesticides and Ground

Water State Management

Plan

June 26, 1996 Proposed

Addition of Facilities in

Certain Industry Sectors;

Toxic Chemical Release

Reporting

June 27, 1996 Proposed

Solid Waste & Emergency Response Land Disposal Restrictions

Phase IV

Aug. 22, 1995 Proposed

Supplemental Proposal to

Phase IV Land Disposal

Restrictions Rule

Jan. 25, 1996 Proposed

Accidental Release

Prevention Requirement

June 20, 1996 Final

Proposed Revised

Standards for Hazardous

Waste Combustors

Apr. 19, 1996 Proposed

Land Disposal Restrictions

Phase III

Apr. 8, 1996 Final

Water Metal Products and

Machinery Effluent

Guidelines, Pretreatment

Standards, and New Source

Performance Standards

May 30, 1995 Proposed

Sources: CBO and GAO.

Page 45 GAO/GGD-98-30 Unfunded Mandates
Appendix III 

Major Contributors to This Report

General Government

Division, Washington,

D.C.

Curtis Copeland, Assistant Director, (202) 512-8101

Theresa Roberson, Evaluator-in-Charge

Joseph Santiago, Senior Evaluator

Kiki Theodoropoulos, Senior Evaluator (Communications Analyst)

Thomas Beall, Technical Advisor

Office of the General

Counsel, Washington,

D.C.

Alan Belkin, Assistant General Counsel

Susan Michal-Smith, Senior Attorney

(410112) Page 46 GAO/GGD-98-30 Unfunded Mandates
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