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UNFUNDED MANDATES AND REGULATORY

OVERREACH

HEARING

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION

POLICY, INTERGOVERNMENTAL RELATIONS AND

PROCUREMENT REFORM

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

FEBRUARY 15, 2011

Serial No. 112–2

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION POLICY, INTERGOVERNMENTAL

RELATIONS AND PROCUREMENT REFORM

JAMES LANKFORD, Oklahoma, Chairman

MIKE KELLY, Pennsylvania, Vice Chairman

JASON CHAFFETZ, Utah

TIM WALBERG, Michigan

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

BLAKE FARENTHOLD, Texas

GERALD E. CONNOLLY, Virginia, Ranking

Minority Member

CHRISTOPHER S. MURPHY, Connecticut

STEPHEN F. LYNCH, Massachusetts

JACKIE SPEIER, California

(III)

C O N T E N T S

Page

Hearing held on February 15, 2011 ....................................................................... 1

Statement of:

Dudley, Susan E., the George Washington University Regulatory Studies

Center; Mayor Patrice Douglas, city of Edmond, OK; Denise M.

Fantone, Director, Strategic Issues, U.S. Government Accountability

Office; and Anthony H. Griffin, county executive, Office of the Country

Executive, county of Fairfax, VA ................................................................. 11

Douglas, Mayor Patrice ............................................................................. 22

Dudley, Susan E. ....................................................................................... 11

Fantone, Denise M. ................................................................................... 31

Griffin, Anthony H. ................................................................................... 50

Letters, statements, etc., submitted for the record by:

Connolly, Hon. Gerald E., a Representative in Congress from the State

of Virginia, prepared statement of .............................................................. 8

Douglas, Mayor Patrice, city of Edmond, OK, prepared statement of ......... 24

Dudley, Susan E., the George Washington University Regulatory Studies

Center, prepared statement of ..................................................................... 14

Fantone, Denise M., Director, Strategic Issues, U.S. Government Accountability Office, prepared statement of ........................................................... 33

Griffin, Anthony H., county executive, Office of the Country Executive,

county of Fairfax, VA, prepared statement of ............................................ 52

Lankford, Hon. James, a Representative in Congress from the State

of Oklahoma, prepared statement of ........................................................... 4

(1)

UNFUNDED MANDATES AND REGULATORY

OVERREACH

WEDNESDAY, FEBRUARY 15, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON TECHNOLOGY, INFORMATION POLICY, INTERGOVERNMENTAL RELATIONS, AND PROCUREMENT

REFORM, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 9:32 a.m., in room

2203, Rayburn House Office Building, Hon. James Lankford (chairman of the subcommittee) presiding.

Present: Representatives Lankford, Kelly, Chaffetz, Walberg,

Labrador, Meehan, Issa, Connolly, Lynch, Speier, and Cummings.

Staff present: Ali Ahmad, deputy press secretary; Michael R.

Bebeau, assistant clerk; Robert Borden, general counsel; Molly

Boyl, parliamentarian; John Cuaderes, deputy staff director; Gwen

D’Luzansky, assistant clerk; Adam P. Fromm, director of Member

liaison and floor operations; Linda Good, chief clerk; Frederick Hill,

director of communications; Ryan Little, manager of floor operations; Justin LoFranco, press assistant; Kristina M. Moore, senior

counsel; Kristin L. Nelson, professional staff member; Laura L.

Rush, deputy chief clerk; Peter Warren, policy director; Krista

Boyd, minority counsel; William Miles, minority professional staff

member; and Suzanne Sachsman Grooms, minority chief counsel.

Mr. LANKFORD. I’d like to begin this hearing by stating the Oversight and Government Reform Committee’s mission statement, is

what we will be doing in all of our different committee meetings.

We exist to secure two fundamental principles: first, Americans

have the right to know that the money in Washington comes from

them, that is coming from them to Washington is well spent, and,

second, Americans deserve an efficient, effective government that

works for them. Our duty on the Oversight and Government Reform Committee is to protect these rights.

Our solemn responsibility is to hold government accountable to

the taxpayers, because taxpayers do have the right to know what

they get from their government. We will work tirelessly in partnership with citizen watchdogs to deliver the facts to the American

people and bring genuine reform to the Federal bureaucracy. This

is the mission of the Oversight and Government Reform Committee.

This is the first committee meeting of the Subcommittee on Technology, Information Policy, Intergovernmental Relations, and Procurement Reform. We have an impressively long title, I know, for

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everyone. This hearing will focus on unfunded mandates and regulatory overreach.

Since the founding of our Nation, the Federal Government has

had to balance its own authority with that of the States, counties,

and cities. While each has a unique responsibility to serve their

constituents, they also have had to operate within their limitations,

both budgetary and statutory. However, lately we have seen where

dedicated, and probably well-intentioned, government staff can

move from serving people to mandating their preferences and priorities to an agency or legislative body onto people.

In the modern regulatory environment, the probability that the

Federal Government will overstep its clearly defined constitutional

boundaries to impose its preferences on State and local leaders has

become increasingly likely. With apparently little check and balance, Federal regulators can dramatically affect the budgets and

staff structure of State and local governments.

Many State and local governments face severe budgetary shortfalls that threaten their ability to perform basic services. Private

businesses are struggling against numerous impediments to job

creation. Quite frankly, they are all hurting.

The preferences of a regulatory agency should not determine the

budget or priorities of a State or local leader. While we are not addressing the issue of private business mandates today, I would also

contend there is a significant responsibility of the Federal Government to restrain its regulatory power to areas that are clearly constitutional in scope and that are not redundant of State or local

laws, codes or enforcement.

I hear too many stories to recount where a Federal regulation

can cost a business millions of dollars, with little or no opportunity

of recourse or reversal of the matter.

When the government enacts a statute or issues a regulation

mandating that a State or local government, or private sector entity perform certain actions, but fails to provide the funds needed

to perform the actions, it has issued an unfunded mandate.

The Unfunded Mandates Reform Act of 1995 [UMRA], as you

will probably hear it referred to several times today, was originally

enacted to minimize the burden of unfunded mandates. This act

sought to limit the growth of unfunded mandates by explicitly defining them and by creating a congressional point of order that

could be used to help prevent the enactment of legislation creating

them. However, multiple agencies and actions were excluded from

UMRA and the definition of an unfunded mandate it established

has come under criticism.

This hearing today seeks to determine the effectiveness of

UMRA. It is intended to focus on Title II of UMRA, which concerns

the unfunded mandates handed down by the executive branch in

the form of new rules and regulations.

While the Unfunded Mandates Reform Act has a great name, it

has limited reach because of its inapplicability to many regulatory

actions. For instance, most rules issued to implement one of the

major pieces of legislation enacted last year, the Dodd-Frank Wall

Street Reform and Consumer Protection Act, are exempt from

UMRA because they will be promulgated by the Securities and Exchange Commission, an independent regulatory agency. Rules

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issued by the new Bureau of Consumer Financial Protection created by Dodd-Frank will also be exempt from UMRA.

Today’s hearing focuses on local governments. I intend, in a future hearing, to bring in tribal and private sector witnesses to testify about their personal experience with burdensome Federal mandates.

While we will hear today from the mayor of Edmond, OK, I want

to myself relate just a couple of anecdotes from my own State to

illustrate why I have called this hearing today.

For instance, the city of Bethany, OK spent over a quarter million dollars in 1987 to put in two water wells, only to be required

a few years later to take them out by the EPA because of their

wastewater levels. Then the EPA changed its wastewater requirements in 2006, costing the city of Bethany over $9 million. The

street signs in Bethany also must change to a new type of reflective

material to meet new Department of Transportation regulations,

costing the city who knows how much yet.

The Oklahoma Department of Transportation has to jump

through millions of dollars of hoops to tear down an old bridge and

to put up a new bridge in the exact same spot. It has to navigate

the Clean Water Act, the National Historic Preservation Act, the

Endangered Species Act, the Migratory Bird Treaty Act, and many

other Federal laws, while people drive over an old, deteriorating

bridge.

What I want to know is whether the Unfunded Mandates Reform

Act is of any consequence in terms of limiting the issuance of these

sorts of unfunded mandates.

Many observers, such as the Government Accountability Office,

have commented on the numerous factors that limit the effectiveness of UMRA in minimizing unfunded mandates. We will hear

today from GAO today about these limitations, exemptions and

loopholes.

The good news is that knowledgeable parties have also identified

potential improvements to UMRA, and we will hear about some of

those ideas today as well.

I would like to now recognize my distinguished ranking member,

the gentleman from Virginia, Mr. Connolly, for his opening statement.

[The prepared statement of Hon. James Lankford follows:]

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Mr. CONNOLLY. I thank the chairman, and I want to personally

welcome him to Congress and thank him for his graciousness as he

and I have tried to manage the transition on this new subcommittee, and I thank him so much for his personal graciousness and

commitment to cooperation on a bipartisan basis.

As a former local government official with 14 years of experience

in Fairfax County, I appreciate Chairman Lankford’s interest in

unfunded mandates. Early in my tenure as a supervisor on that

board, Congress passed the Unfunded Mandates Reform Act

[UMRA], following an outcry by State and local elected officials

about unfunded mandates and their burden.

It was a positive step forward, but, as I learned in the subsequent decade, the act, as the chairman just indicated, did not fully

stem the tide of unfunded mandates. It was written in a manner

that exempted bills that imposed significant costs on localities,

such as No Child Left Behind. As has been well documented, the

design, testing, and implementation costs of No Child Left Behind

increased local educational costs significantly, by hundreds of millions of dollars, in many, many places, including my own county.

I am pleased that Fairfax County Executive Tony Griffin is here

today so that he can discuss the continuing impact of Federal unfunded mandates on local governments.

I am concerned, however, that some have conflated mandates

with regulation. I recognize that UMRA focuses on both intergovernmental and private sector mandates; however, the focus of our

efforts should be on the continued burden that unfunded mandates

place on local governments. This was the focus of a series of hearings in 2005 by Congress in this committee in particular, and I remain it should remain that way today.

Despite the technical language of UMRA, I do not consider regulations affecting businesses as unfunded mandates necessarily. As

President Obama suggested, regulation should be reviewed for efficacy. But I simply do not believe that mercury, sulfur dioxide, or

carbon dioxide restrictions on power plants should be placed in the

same box was unfunded Federal mandates on local governments.

When the private sector is engaged in activity that places public

health or safety at risk, these actions should be regulated. In fact,

carte blanche elimination of regulations could create new costs for

local taxpayers. In Fairfax County, for example, most smog forming

pollution comes from power plants in the Ohio Valley. Deregulation

of pollution from those plants through repeal of the Clean Air Act

or otherwise would increase the costs of local government. The public health impact alone would be significant and would result in

more hospital emissions, emergency service expenses, and lost

workdays due to respiratory illnesses.

Fairfax County and other local jurisdictions would be forced to

pay for more bus and transit service, telework coordination and

other efforts to reduce vehicular emissions in order to prevent escalating costs of air pollution. It is imperative that our regulatory

system prevent companies from passing on those costs of doing

business to our local taxpayers.

I would be very apprehensive about any effort to use UMRA as

a vehicle for an overall review of the regulatory process as it relates to the private sector. I believe that such a review would run

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counter to the original purpose of UMRA. In light of this, I am

pleased that we have two witnesses today representing local governments. I thank Chairman Lankford for recognizing the importance of this issue to State and local governments. I believe there

are some substantive reforms to prevent unfunded mandates that

are worthy of bipartisan examination, as the chairman indicated.

For example, the Tax Prevention and Reconciliation Act of 2005

included an unfunded mandate called for a 3 percent withholding

that will impose a cost of more than $70 million for State and local

governments, create additional administrative burdens, and reduce

competition in contracting. Another Bush era law, the Real ID Act

of 2005, could cost States as much $11 billion to fully implement

an unfunded mandate.

In addition, we will hear about the impact of the BRAC process

on local governments and local communities from Mr. Griffin. Implementation of BRAC recommendations can impose multi-billion

dollar transportation and infrastructure obligations on States and

localities if BRAC relocations occur in urban areas, such as they do

in Fort Belvoir and Quantico in Northern Virginia. Within the context of UMRA, these improvements are considered optional, but

only if it is optional for my constituents to go to work.

I support efforts to reform UMRA to take a realistic view of these

costs on local governments, but I do not support using UMRA in

an attempt to roll back important public health regulations like the

Clean Air Act. In addition, I would ask unanimous consent that a

letter from the National Association of Counties expressing opposition to unfunded mandates and drastic discretionary spending cuts

be placed in the record.

I look forward to working with my chairman, Mr. Lankford, to

examine reforms that would ensure UMRA can be used to measure

the impacts on legislation like No Child Left Behind, and I look forward to the testimony today. Thank you. I yield back.

[The prepared statement of Hon. Gerald E. Connolly follows:]

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Mr. LANKFORD. You are welcome. And I see no issue with receiving by unanimous consent that report.

[The referenced information follows:]

[NOTE.—No Insert/Information Provided.]

Mr. LANKFORD. All other Members have 7 days to submit their

opening statements for the record.

Let me recognize our panel and lay some ground rules for the

conversation and let you all finally get a chance to be able to talk

as well.

Susan Dudley is the director of the George Washington University Regulatory Studies Center. From April 2007 to January 2009,

Professor Dudley served as the Presidentially appointed Administrator of the Office of Information and Regulatory Affairs in the

U.S. Office of Management and Budget. Thank you for coming.

Mayor Patrice Douglas. Mayor Douglas serves as the mayor of

Edmond, OK, a position where she was elected in April 2009. Aside

from her mayoral duties, Mayor Douglas has made a career as a

community banker and as an attorney. She is a wife and a mom,

and she actually does not have an opponent now for her next reelect, so she is able to be here actually fancy free on that one.

Denise Fantone is the Director of Strategic Issues, U.S. Government Accountability Office, where she oversees work on Federal

agency budget processes and cross-cutting regulatory issues, including Federal rulemaking. Very glad that you are here today.

And Anthony Griffin, as Mr. Connolly has already recognized,

Mr. Griffin is the county executive of Fairfax County, VA, appointed in 1999. Mr. Griffin oversees the operations of all Fairfax

County government. Thank you for coming up. You have the shortest drive, I believe, of all of you, but very glad that you are here

as well on that.

Let me set some quick ground rules for our hearing. Each of you

has been asked to submit a written statement for the record and

we have also asked you to prepare an oral statement no longer

than 5 minutes so we can allow time for questions and discussions

on your statements. You will see on this desk a series of lights that

will count down from 5 minutes it will be green, then the lights

will change to yellow when you have 1 minute and red when your

time has expired and it will be just your opportunity to quickly

wrap up.

After all the panel has given their oral statements, each Member

present will have 5 minutes to be able to ask questions of the

panel. Many Members may have several questions, so it is very important that you answer the questions quickly and concisely. Don’t

feel you have to give a lengthy answer on that.

Please also forgive the members of this committee if they have

to excuse themselves. Most of us have multiple committee assignments this morning and we are juggling concurrent meetings. Your

testimony will be recorded completely for review.

Though each Member completely chooses the content of their 5

minutes of questioning, I would ask that Members honor our

guests’ time and attendance by prioritizing answers and information from them, instead of making speeches during your questioning time. I would also ask Members not to ask a question after

their 5 minutes of time has expired. As chairman, I do reserve the

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right to remind you that time has expired and ask for proper decorum during our hearing.

If you have been asked a question and you see the red light come

on while you are still answering, please feel free to finish up your

answer, though, as a guest here of the panel.

All of our panels are bipartisan. There are Members of both parties on this committee. It is our desire to hear the facts so that we

can make an informed decision in our Nation’s best interest. There

are many issues in Congress that are divisive, but most of the

issues we deal with in this committee should be very bipartisan.

We are very grateful of the time you have committed to doing

your written and oral statements, and the time you have given

away from your family for this hearing. May I also say that I understand many or most of you gave up your Valentine evening with

your family to travel here to D.C. last night, so please pass on our

gratitude to your family and your willingness to share your expertise today.

Do you understand the ground rules of this hearing?

It is the policy of this committee that all witnesses be sworn in

before they testify, so would you please raise your right hands?

[Witnesses sworn.]

Mr. LANKFORD. Thank you very much.

We will begin initially with Ms. Dudley, I believe, with your testimony, so we would be very please to receive that now.

STATEMENTS OF SUSAN E. DUDLEY, THE GEORGE WASHINGTON UNIVERSITY REGULATORY STUDIES CENTER; MAYOR

PATRICE DOUGLAS, CITY OF EDMOND, OK; DENISE M.

FANTONE, DIRECTOR, STRATEGIC ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; AND ANTHONY H. GRIFFIN,

COUNTY EXECUTIVE, OFFICE OF THE COUNTRY EXECUTIVE,

COUNTY OF FAIRFAX, VA

STATEMENT OF SUSAN E. DUDLEY

Ms. DUDLEY. Thank you, Chairman Lankford, Ranking Member

Connolly, and members of the committee, for inviting me today. I

am Susan Dudley, Director of the George Washington University

Regulatory Studies Center and Research Professor of Public Policy

at GW. From April 2007 to January 2008, I oversaw the executive

branch Regulations of the Federal Government as Administrator of

the Office of Information and Regulatory Affairs [OIRA]. The views

I express here are my own.

I thought I would use my 5 minutes to summarize why I think

UMRA has been less effective than some had hoped at curbing unfunded mandates and to offer some modest proposals.

During my tenure as OIRA Administrator, executive branch

agencies issued 108 economically significant final regulations, only

17 of which were classified as unfunded mandates, and not one of

those was considered to impose mandates on State, local, and tribal

governments. Now, that doesn’t mean that no regulations issued

during my tenure imposed burdens on other levels of government.

Indeed, EPA issued two national ambient air quality standards

during that period, and I heard from several States seriously concerned about the cost of implementing them.

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They were not classified as unfunded mandates because, one, the

cost to States did not meet the UMRA definition of mandate and,

two, the Clean Air Act prohibits EPA from considering cost when

setting the primary acts. More recent acts for sulfur dioxide have

argued further that UMRA is not triggered because it is the Clean

Air Act itself that imposes the obligation on States and EPA is

merely interpreting those requirements.

Another regulation issued during my tenure that a reasonable

person might consider burdensome on States was an HHS rule

eliminating reimbursement to States under Medicaid for schoolbased administration expenditures and certain transportation

costs. Despite the elimination of approximately $635 million in

Federal funding, the rule was not covered by UMRA because it ‘‘did

not require States to replace that Federal funding with State funding or take any particular steps.’’

These illustrations show the limitations of UMRA. Though both

UMRA and Executive Order 12866, which governs agency rulemaking, exclude independent agencies and rely on a threshold of

$100 million, UMRA covers a fraction of what the Executive order

covers, in large part because UMRA applies the $100 million

threshold to mandated spending, while the Executive order applies

it to affects, and UMRA contains seven additional exemptions,

more I think that we will hear about from GAO.

Not only does the Executive order cover more regulations than

UMRA, but it provides OMB more authority to hold agencies accountable for conducting analysis and basing regulatory policy on

the results of that analysis.

UMRA only requires analysis if an agency ‘‘in its sole discretion

determines that accurate estimates are reasonably feasible and

that such effect is relevant and material.’’ In contrast, OIRA determines whether a regulation is subject to Executive Order 12866

and whether agencies’ regulations and supporting analysis meet

the principles of the order.

The Executive order calls for quantitative and qualitative analysis and decision factors that are similar to those contained in

UMRA. It emphasizes consultation with other levels of government

and States of each agency ‘‘shall assess’’ the effects of Federal regulations on State, local, and tribal governments, and seek to minimize those burdens. As a result, in my experience, the analytical

and interagency review requirements of the Executive order provided OIRA a more effective mechanism for holding agencies accountable to the objectives expressed in UMRA, both conducting

the analysis to understand the effects of the regulations and in

choosing the most cost-effective regulatory approach from alternatives.

Now onto my modest suggestions to address, one, the limited coverage and, two, the lack of accountability. To broaden coverage,

Congress could consider aligning on the language with that of Executive Order 12866 and/or extending it to include independent

regulatory agencies, which are not currently bound by the Executive order either. To make the executive branch more accountable

for the goals of UMRA, Congress could provide OMB oversight authority beyond certifying and reporting on agencies’ actions.

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Congress might also want to expand judicial review under UMRA

so that, for example, an agency’s failure to justify not selecting the

most cost-effective or least burdensome alternatives could be

grounds for staying or invalidating the rule. Congress might even

go further, for example, by making compliance with mandates discretionary for State, local, and tribal governments unless funding

is provided.

Even without amending the statute, this committee has options

for increasing knowledge of the extent of unfunded mandates. Section 103 provides that, at the request of Congress, CBO would compare its Title I estimate of the unfunded mandates of a statute

with an agency’s Title II estimate of the cost of the regulations implementing that statute.

I am not aware whether Congress has ever made such a request,

but it could yield interesting comparisons to inform Congress’s deliberations of both future legislation involving unfunded mandates

and whether agency implementing regulations are consistent with

original congressional intent.

Thank you.

[The prepared statement of Ms. Dudley follows:]

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Mr. LANKFORD. No, thank you very much. Look forward to your

questioning.

Mayor Douglas, thanks for being here. We would very much entertain your oral statement now.

STATEMENT OF MAYOR PATRICE DOUGLAS

Ms. DOUGLAS. Thank you very much, Chairman Lankford, for inviting me. Thank you, Members, for allowing me to be here today.

I am Patrice Douglas. I am the mayor of Edmond, OK.

Edmond is just to the north of Oklahoma City and is Oklahoma’s

sixth large city. We have about 86,000 people, with a school district

of 110,000. We cover 90 square miles. We have a general fund

budget of about $43 million and our overall budget is about $226

million. Last year, Edmond was named the top place to raise a

family by Family Circle magazine. I had to put that in there.

Edmond, as all Oklahoma cities and cities across the Nation, are

facing budget decreases. We are a sales tax only city; we are funded only by sales tax and what we make from our utility companies.

For the first time in more than two decades, last year we had a

9 percent budget decrease. No living mayor in Edmond had ever

faced that issue. We were able to prioritize people, and we didn’t

have any furloughs or layoffs of police or firefighters. We delayed

capital improvement projects, which means roads, bridges, repairs,

and we were able to cut expenses.

Other Oklahoma cities didn’t fare as well; they cut expenses and

had to lay people off and furlough people, fire police and civilian

employees. Across the Nation I believe that the picture was worse.

And having been at the U.S. Conference of Mayors recently, I

heard about mayors who were laying off as many as 30 percent of

their work forces. So municipalities are facing severe challenges

right now.

I first want to commend those of you who were in Congress and

supported UMRA when it was passed. I hope that you continue to

support that, but I hope that we can tighten it up. I hope that we

can make it more effective for local governments because we are

feeling the pressure right now. Every time we have a Federal mandate handed to us, then that is one less thing I can do that my citizens elected me to do, and I am held directly accountable because

I grocery shop with those people.

I want to hit on just a few things that we are seeing as overwhelming costs in our budget. First, the recordkeeping that we are

required to do for stormwater regulation, I know, is extremely burdensome and is extensive.

I first want to tell you that Edmond is in compliance and we are

happy about that. Over the last 5 years we have done what we

needed to do, but it has cost us $2 million to do that. So $2 million

that I can’t spend to fix roads, all to show that I am in compliance,

that I was not outside the regulatory guidelines of that.

Second, there are people on this panel who know more about the

Clean Air Act than me, but I can tell you that Edmond sits in a

greater Oklahoma City region and that we are in compliance, but

there is talk about changing the standards. And if they change the

standards, we will have some very long, extensive processes and

regulations and costs that go along with that.

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I would be remiss if I didn’t mention health care. We are, right

now, in the city of Edmond, reviewing what our options are with

regard to health care. We have traditionally covered the benefits

for 100 percent of our employees; we have paid their premiums at

100 percent and we have paid dependent coverage at 75 percent.

Our consultants are telling us that we are going to see an almost

20 percent increase in health care costs this year, which amounts

to $600,000. Almost 15 percent of that is directly attributable to

some of the mandates that came down through the recent Health

Care Reform Act, and that is what we are being told.

So we are trying to budget for that. I am not sure how we are

going to it. We are just now starting our budgeting process and

what I believe is going to happen is we are going to have to consider the options on health care and perhaps lowering the coverage

on our employees or raising the premiums or requiring some payback from employees. I am not sure how it is going to end up, but

we are facing that.

Last, I would be remiss if I didn’t mention the Dodd-Frank act

and the concern that we have with an SEC regulation that is being

proposed that will affect cities and volunteer boards. I have more

than 30 boards and commissions in Edmond with volunteers serving. If this SEC rule is adopted, it is likely that I am going to have

many of my volunteers have to be registered through the SEC.

Not only does that probably put a wet blanket on volunteers

wanting to volunteer for these boards, but it also causes my employees where I am already short-staffed because I am not filling

vacancies, causes them additional work. So the costs I can’t determine because the rule hasn’t been passed yet, but I urge folks to

look really closely at that rule because I do believe it is going to

impose some serious requirements on cities.

Thank you.

[The prepared statement of Ms. Douglas follows:]

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Mr. LANKFORD. Thank you.

Ms. Fantone, we would love to be able to hear your oral statement now.

STATEMENT OF DENISE M. FANTONE

Ms. FANTONE. Good morning, Mr. Chairman, Ranking Member

Connolly, and members of the subcommittee. I am pleased to be

here to discuss the Unfunded Mandates Reform Act of 1995 as it

relates to Federal agency rules. Congress has asked GAO to evaluate UMRA several times and on its 10th anniversary to seek diverse views on UMRA restraints and weaknesses. Drawing on this

work, I will describe exceptions and exclusions for identifying Federal mandates, summarize GAO’s findings, and also present suggestions made by knowledgeable parties about improvements to the

act.

UMRA was enacted to address concerns about Federal mandates

that require other levels of government or the private sector to

spend resources without providing funding to cover their costs.

UMRA does not prevent Federal mandates from going into effect;

instead, the act’s purpose is to provide information on the costs and

benefits of Federal mandates and rules that meet the reporting

threshold and to obtain meaningful and timely input from State,

local, and tribal governments as rules are developed.

Before any of this happens, however, rules must pass through

multiple steps and meet multiple conditions. My statement lists 14

reasons why an agency would not identify its rules as containing

a Federal mandate subject to UMRA. Let me give you a few examples.

Rules are not identified as having a mandate if costs are imposed

as a condition of Federal assistance or where participating in the

Federal program is considered voluntary. Other exclusions are

based on the type of agency issuing the rule. UMRA does not apply,

as has been said, to independent regulatory agencies, such as the

Securities and Exchange Commission. Or another exemption is

where the rule starts. It must begin as a proposed rule. There are

other exclusions as well, such as rules that involve enforcement of

individual rights, national security and emergency activities, or

procedures for safeguarding Federal funds.

Given these reasons and others I have not described, it is not

surprising that GAO found over the years few rules that trigger

UMRA. In 2004, we reviewed all final major and economically significant rules published in 2001 and 2002. Only nine tripped the

UMRA requirements. Of the 113 that did not, 65 had new requirements that we determined could impose costs or other impacts on

non-Federal parties; 29 appeared significant and little different

from the rules identified as Federal mandates. Why didn’t these

rules trigger UMRA? The most frequent explanations were the financial threshold of $100 million was not met; the rule did not go

through the proposed rule stage; participation in the Federal program was considered voluntary; or the rule was issued by an independent regulatory agency. Similar GAO findings before and since

raise the question whether UMRA adequately captures regulatory

actions that might impose financial burdens on others. The evidence suggests the answer is no.

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In 2005, GAO asked a diverse group from academia, advocacy

groups, business, Federal agencies, and State and local governments for their views. No one suggested repealing UMRA. They

recognized its positive aspects, but found areas that they would

like to see fixed.

Two areas in particular are relevant to today’s hearing. The most

frequent comment across all sectors was about UMRA’s coverage.

Most, but not all, of UMRA’s narrow coverage was a barrier to the

act’s effectiveness. While there was less agreement on approach,

many suggested amending particular exclusions, notably as a condition for Federal assistance or for participation considered voluntary.

Other frequent comments were to lower the cost threshold,

which, for regulations, would be the expenditure threshold or to include both direct and indirect costs; and some parties, particularly

from the public interest advocacy sector, viewed UMRA’s coverage

as a strength and wanted to include health and environmental protection.

As for the underlying purpose of UMRA to generate information

about the size and nature of Federal mandates, they generally

agreed there needed to be more complete estimates, and a frequent

suggestion was that agencies evaluate mandates after they had

been implemented as a way to better understand actual costs and

benefits. Such information could help provide additional accountability and potentially lead to better design and funding decisions.

Thank you very much.

[The prepared statement of Ms. Fantone follows:]

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Mr. LANKFORD. I thank you. Look forward to getting a chance to

ask you some questions related to some of those. Thank you.

Mr. Griffin, thank you for being here.

STATEMENT OF ANTHONY H. GRIFFIN

Mr. GRIFFIN. Good morning, Mr. Chairman, Mr. Ranking Member, and members of the subcommittee. I am Anthony H. Griffin,

county executive, Fairfax County, VA, a position that I have had

the privilege of holding since January 2000. I appreciate the opportunity to speak to you today on the subject of unfunded mandates.

It is a subject that is treated with some sensitivity in how Fairfax

County legislates and operates.

When county staff proposes changes to local ordinances or on

how it operates, there is a requirement to identify the regulatory

and financial impact of such changes as part of the staff report to

the board of supervisors. In addition, county staff works in advance

with the impacted parties to understand the effects of any changes

and to reach a consensus, if possible, on implementation and costs.

The county staff frequently is trying to balance the interests of

public safety and quality of life with the immediate concerns of

neighborhoods and industry. The process concludes with a public

hearing. If staff has done its job well, there are few or no speakers

and the decision of the board of supervisors is usually unanimous.

Since local government is the closest to the people, it is ironic

that the use of a significant amount of its resources are in fact dictated by the higher levels of government. In fiscal year 2008, the

last time Fairfax County analyzed the cost of mandates, it was estimated that the net cost of Federal and State mandates was $751

million out of a $3 billion general fund. Federal mandates accounted for 39 percent of all mandated expenditures, for a net cost

to the county of $313 million.

What is more difficult to do with the cost of mandates is to decipher how much a community would pay to implement a mandate,

whether it was a mandate or not. In many instances, Fairfax County chooses to exceed State mandates because the mandate is

viewed as a minimum as it relates to quality of life. Schools and

mental health are examples.

Some Federal mandates are not as apparent as, say, the American Disabilities Act or the Health Insurance Portability and Accountability Act. For example, Fairfax County is trying to mitigate

the impacts of decisions made in the last round of the Base Closure

and Realignment Act [BRAC], which in most instances relocated

Defense employees located near transit to Fort Belvoir, which has

no transit and is served by a road system already at capacity.

While the county appreciates the additional 26,000 jobs at Fort

Belvoir, it actually tried to limit BRAC-related moves in the National Capital Region because of the negative impact to the transportation system.

The Defense Department provides no money for road improvements external to military installations unless the impacts exceeds

the doubling of traffic. Given that the primary roads involved are

Interstate 95 and Route 1, no money is forthcoming. The estimate

to mitigate the moves to Fort Belvoir are in excess of $800 million,

money which neither the State nor the county have.

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Unlike the county’s process, the Federal Government did not

quantify the impacts of the relocation on the host jurisdiction or

the region, nor has the Federal Government, in the form of the Defense Department, offered to mitigate the impacts. In fact, access

to the proving ground of Fort Belvoir would not have been possible

without a significant financial contribution by the county and the

State.

In closing, I would note that regulation by all levels of government are necessary to achieve certain minimums and how services

and facilities are available to our public. Communication, sensitivity, balance, and identified resources need to be part of the process

creating them.

Mr. Chairman, thank you for the privilege to speak. I would be

pleased to respond to the committee’s questions.

[The prepared statement of Mr Griffin follows:]

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Mr. LANKFORD. We look forward to that, actually, and we will go

back and forth, giving a chance just to ask questions, and we are

just looking for your honest answers and just response to it. We

will take not only your written testimony, but your oral testimony

will be all compiled together in a permanent record.

Let me just bounce a couple questions off you to get us started,

then I will have ranking member, Mr. Connolly, be able to ask

some questions as well.

Mr. Griffin, define for us in your mind, from the county perspective, what is an unfunded mandate. Now, I know if we ask Ms.

Fantone, we would get a very strict, clear defined of what the law

says on it. What would your perspective be? How would you define

it?

Mr. Griffin. My perspective would be an obligation imposed on

the county which the county otherwise would probably have not

undertaken on its own.

Mr. LANKFORD. OK. That’s great. Mayor Douglas, the cap is $100 million of effect on that. In the $226 million budget for Edmond, a $100 million burden would be

rather large. Is a $25 million burden an unfunded mandate, you

would say? Would that have an effect if there was a 10 percent

burden on the city of Edmond?

Ms. DOUGLAS. Absolutely. Absolutely.

Mr. LANKFORD. Go ahead and push your mic right there. That’s

all right.

Ms. DOUGLAS. Absolutely. I need to set up to answer the questions, I guess.

Mr. LANKFORD. Great.

Ms. Dudley, tell me a little bit about 12866, that wonderful Executive order that has been out there for us since the 1990’s, trying

to deal with the unfunded mandates. You made some specific suggestions for that, including aligning UMRA with the 12866, and

then you also talked about the independent agencies. Tell me your

personal perspective on it. If those were excluded, how would the

independent agencies be looped into the unfunded mandates? If

this were to be reformed, how do you suggest those get engaged?

Ms. DUDLEY. By covering the independent agencies. There are

two parts to it. Executive Order 12866 also does not apply to independent agencies, so simply by covering them, you wouldn’t have

the advantage of having OMB serving as a check, so Congress

would need to do that if OMB didn’t. But I do think there are a

lot of important regulations that go out as independent agencies.

Mr. LANKFORD. Do you see an issue with those being included in

those that are facing accountability of Congress and of the executive? Would it, by nature, violate their independent status to have

accountability around them, for instance?

Ms. DUDLEY. I am not a lawyer, although I have pretended to be

one on occasion, but, no, from what I understand, it would not violate any constitutional principles to include them.

Mr. LANKFORD. OK. That is terrific. There was a statement you

made as well about the Section 103 about Congress requiring information back. It is my understanding that has also not been required as well on that as a followup to saying, OK, this is what

you said it would cost; what did it actually cost. That is an interVerDate 11-MAY-2000 12:13 Jul 14, 2011 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\67172.TXT KATIE PsN: KATIE
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esting determination that we may have to determine as well on

finding other regulations and saying how will we process through

that with individuals on it.

Then you made a statement as well about the judicial review and

determining if things are cost-effective. Tell us about just the inside conversation that may happen saying, OK, is this the most

cost-effective way to do this. Is that something that is really discussed often among the agencies?

Ms. DUDLEY. It is. Agencies do take that seriously and OMB

takes it seriously. But it is never judicially reviewable, so it is discussed within the executive branch, but there isn’t another branch

of government that serves the check or a balance.

Mr. LANKFORD. So you are saying if there was an agency that determined it doesn’t matter, we want to do it this way, there is no

way to really stop them at this point. OK.

Ms. Fantone, let me ask you a quick question as well. Give us

an example of a voluntary Federal program. You said that was a

major piece of an exception that is sitting out there. What is a good

example of a voluntary Federal program?

Ms. FANTONE. Well, oftentimes what we have is the same kind

of thing that actually applies with Federal assistance, there is the

carrot and the stick. An example would be if you have—and I will

use firefighters. Oftentimes we provide technical assistance and

there may be some cost-sharing piece of that.

As soon as you have a condition in which you want to get a Federal assistance, or it can also happen with the private sector, you

have to commit to making a decision that you are going to go ahead

with a program and it will cost you something in return for either

Federal assistance or some other largesse from the Federal Government.

Mr. LANKFORD. All right. So if there is any option for them to

opt out of it, it is considered a voluntary program, is that what you

are saying?

Ms. FANTONE. Yes.

Mr. LANKFORD. OK. That is terrific. But once they take it on,

they have to fulfill all those mandates.

Ms. FANTONE. Exactly. I think Ranking Member Connolly, in his

opening statement, described a situation where there is a bit of a

catch 22.

Mr. LANKFORD. Thank you very much.

I would be very pleased to recognize Ranking Member Connolly

for 5 minutes of questioning.

Mr. CONNOLLY. I thank the chairman and, again, welcome to our

panelists.

Mayor Douglas, one thing I did not follow. You referred to voluntary boards and commissions, and, of course, we have those in

Fairfax County as well.

Ms. DOUGLAS. Right.

Mr. CONNOLLY. I am not aware of the Dodd-Frank legislation affecting any of our boards or commissions in Fairfax. What were you

referring to?

Ms. DOUGLAS. There is an SEC proposed rule to carry out some

of the language that is in the Dodd-Frank act that talks about municipal advisors, and they are defining municipal advisors as people

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who have to be registered through the SEC. The SEC has proposed

this rule. I believe lots of cities are coming in and saying—there

is a common period going on right now and are saying please don’t

do that because it is going to hurt our recruitment of volunteer

boards if they have to register through the SEC to comply with the

Frank-Dodd act.

Mr. CONNOLLY. Presumably, that would affect people who would

advise the city or municipality in financial matters.

Ms. DOUGLAS. Correct. But when you look at many of my boards,

for example, I have an economic development authority that has

bonds that go through it. It still goes to a bond advisor and the

opinion registered by my board still has to be approved by another

board advisor or somebody who is well versed in that.

Mr. CONNOLLY. Mr. Griffin, do you have a similar situation in

Fairfax County?

By the way, I think, Mayor Douglas, you said your population is

86,000?

Ms. DOUGLAS. Yes, sir.

Mr. CONNOLLY. And, of course, Fairfax’s population is what?

Mr. GRIFFIN. One million eighty-three thousand as of the Census.

Mr. CONNOLLY. So you have a lot of boards and commissions.

Have you had this problem from the Dodd-Frank legislation?

Mr. GRIFFIN. I am not aware of the details. I suspect organizations like our economic development authority may have to be involved, but I think most of our volunteer committees and commissions would not be impacted. I think it relates only to financial.

Mr. CONNOLLY. Yes. I would invite you that, if you have a similar situation, Mayor Douglas, you might submit it for the record.

Mayor Douglas also testified that she has been advised that the

health care reform legislation, even though most of the major provisions don’t kick in for another 2 years or 3 years, has actually contributed to an increase in her premium cost. Is that the case in

Fairfax as well?

Mr. GRIFFIN. Yes. Staff estimate is that our cost to provide

health insurance for our employees will increase approximately 4

percent over time to administer the program.

Mr. CONNOLLY. Attributed to that?

Mr. GRIFFIN. Yes, sir.

Mr. CONNOLLY. And what has been the increase in premium

costs normally?

Mr. GRIFFIN. I would say over the last 10 years the increase has

been about 10 percent a year.

Mr. CONNOLLY. Unrelated to health care reform.

Mr. GRIFFIN. Correct.

Mr. CONNOLLY. Ms. Fantone, an unfunded mandate, how does

GAO separate the issue of unfunded mandates from normal regulation? I mean, the minimum wage requirement, in a sense, is an unfunded mandate; it tells people you have to pay this much, you

can’t pay less per hour.

Presumably, nobody would say that we ought to eliminate that

or we ought to fully fund that requirement. This is a societal requirement saying this is what a living and just wage ought to be.

We may disagree about what that level ought to be. We might even

philosophically disagree about whether it is the role of the Federal

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Government to impose it. But there is lots of history suggesting, by

and large, the U.S. population agrees there should be such a regulation.

How do we separate that kind of regulatory activity, normal, by

the State or Federal Government, versus unfunded mandates? I

would put No Child Left Behind or the BRAC process, for example,

in the latter category.

Ms. FANTONE. Well, as you point out, this is a decision that is

as much a policy and philosophical decision as anything else. I

think probably to respond I would like to briefly describe what we

did in 2004 when looking at rules that were not classified as Federal mandates.

So we did a variety of different things. First of all, we looked at

all of the ones that were unclassified, and that was 113, and then

we reviewed the evidence, and the evidence included what statements were available from the agencies themselves that would indicate that there were additional costs, and then we went out and

we talked to those that would be affected to see whether we in fact

had captured correctly, and that included the Federal agencies that

were involved as well as those, again, who were affected; and there

was consensus that, in fact, there was additional costs, some of

which, 29 in particular, that would be significant.

So it is kind of the Goldilocks complex here, trying to get it just

right. It is a difficult thing, but that is how we went about how it

in 2004.

Mr. CONNOLLY. My time is up, Mr. Chairman.

Ms. Dudley, I would hope to, in another round, come back to your

testimony. Thank you.

Mr. LANKFORD. The Chair would now like to recognize the distinguished gentleman from Pennsylvania, the vice chairman of this

committee, Mr. Kelly, for 5 minutes.

Mr. KELLY. Thank you, Mr. Chairman. And also the board, thank

you for being here today, because I know you are taking time out

of your private lives to come and do this.

My questions are mainly for the mayor, because I also sat on the

city council in a very small town, a third class city.

Ms. DOUGLAS. Bless you.

Mr. KELLY. Thank you.

Ms. DOUGLAS. Bless you.

Mr. KELLY. That was after sitting on a school board, so——

Ms. DOUGLAS. Oh, bless you again.

Mr. KELLY. And I think that it would be hard to argue that a

lot of these are well-intentioned when they start off. But I would

submit that in our little town, 67 cents out of every dollar we bring

in in revenue, tax revenue, is already eaten up by public safety and

there are so many unfunded mandates that are out there. As a

mayor, as you sit there and as you watch what is going on, you are

almost afraid to read your next email or open the next piece of mail

that comes through because you don’t know where it is going to

come from or who is going to ask you to participate in something.

So we have these partners that say we need to do this, but they

don’t bring any money to the table. So if you could tell me—I know

we struggle with our budgets every year, trying to meet all these—

some of the things that you have to do and some of the services

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that have to be cut dramatically just to comply with a mandate, an

unfunded mandate.

Ms. DOUGLAS. Well, we have to direct money away from our general fund, which is, like you said, that is my 33 percent that I get

to run the rest of city government on, outside of police and fire. So

that is what I run my trash collection, I repair my roads, I clean

my roads after the recent two blizzards, I repair bridges after a

500-year flood that I had this summer.

So you are exactly right. What we are looking at this year is simply trying to decide whether or not—we are one of the fastest growing communities in Oklahoma, so we are an economic engine for

our State; we provide jobs. And what we are looking at right now

is deciding between keeping people or building the roads to get economic development to our city, because you have companies that

won’t locate there unless you can build the roads.

So it is a decision right now for me and my council priorities. We

have to prioritize are we going to do the infrastructure projects

that we have already delayed, because last year we could not build

roads, we couldn’t do the repairs we needed and that we had budgeted because we had a 9 percent decrease. So we are making those

decisions.

I talk about, in my written testimony, that there is a program

called NIMS. Nobody can fight about the fact that homeland security is very important, but Edmond was the eighth safest city in

America a couple of years ago; yet, we are spending at least

$82,000 and by my estimates that they called me last night,

$310,000 to do a training program that we are now having to document we are doing. And we are already one of the safest cities in

America. So we are not going to fight against homeland security,

but it is $310,000 that comes out of my budget in order to get other

Federal grants. It is money that sits out there and says if you don’t

do this, then you don’t get these grants. And it doesn’t just apply

to homeland security grants, it applies to other grants.

So I think local governments are better at determining what they

need, what they need, and we need to be ready, we need to be secure and safe, and my electorate is going to kick me out if we are

not.

Mr. KELLY. And I understand that. Also, you know, the determination of whether a regulation or rule is cost-effective, what kind

of a formula do you understand that they use to actually determine

if it is cost-effective? Is there a real cost-benefit analysis there? I

mean, I have never seen it.

Ms. DOUGLAS. I have never seen it.

Mr. KELLY. It usually doesn’t make sense to those of us that actually have to pick up the tab on this.

Ms. DOUGLAS. I have never seen it.

Mr. KELLY. OK.

Ms. DOUGLAS. I have never seen it. For many of the regulations

that are imposed on the city, I have never seen it.

Mr. KELLY. Very good. Thank you.

That is all, Mr. Chairman.

Mr. LANKFORD. Thank you.

I am honored to be able to recognize the ranking member of the

Oversight and Government Reform Committee of a whole. Glad you

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are here, Mr. Cummings. I recognize the gentleman from Maryland

for 5 minutes.

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I congratulate you on your position. I am looking forward to working

with you.

First of all, I want to thank the panel for outstanding testimony.

As I listened to us, you know, I have stated it: we have a problem

here. On the one hand, we have the Federal Government, your representatives, all of us, on the Federal level trying to get certain

things done; and then when it is filtered down to you all, then you

all are where the rubber meets the road, so then you have all of

these issues that you have to deal with. And I just want to ask a

few questions with regard to you, Ms. Dudley.

You talked about expanding judicial review. How extensive

would that judicial review be? I am just wondering about that.

Ms. DUDLEY. As I say, I am not a lawyer, so I don’t have specific

advice. I know that is a criticism that I have seen of UMRA, that

the courts could only call an agency out for not doing an analysis

when it should have done the analysis.

Mr. CUMMINGS. Right.

Ms. DUDLEY. But it can’t do more than that.

Mr. CUMMINGS. Well, going to you, Mayor Douglas, certainly, we

sympathize with everything you have said. I think your employees

are very fortunate to be getting 100 percent of their insurance covered. I mean, I think that is great, and that says a lot for you and

your city. But I want to go back to you were talking about spending

$2 million on compliance, showing that you complied. I was just

wondering, is that to show that you complied or is that actually

putting yourself in compliance, or is it a combination of both? Do

you understand what I am saying?

Ms. DOUGLAS. To my knowledge, we were in compliance, but I

am not going to answer that for certain. What I will tell you is that

what this money went for was to implement the minimum control

measures with six areas of focus: to address the stormwater runoff

quality and to report on it; to address public participation and to

report on that; to address public education and outreach and to report on that; to address post-construction stormwater management

and report on that; new development, old development, stormwater

management; and to file the reports.

So we were in compliance for 5 years. It is apparently a 5-year

study. I have been mayor for 2, but it was a 5-year study and over

the course of that 5 years it was $2 million.

Mr. CUMMINGS. And it sounds like it was for both, for being in

compliance, then making sure you report on compliance, based

upon what you just said.

I was just wondering from each of you members can you provide

us with suggestions as to how to improve UMRA in order to help

State and local governments? I think, as I listened to you, Mayor

Douglas, it sounds like, in an effort to plan sometimes, it becomes

very difficult if you don’t know what is coming down. As a matter

of fact, the chairman talked about the case in Oklahoma, your city,

I think it was, is that right? Right. OK. So how does it affect planning and what can the Federal Government do to help locals be

able to plan better with regard to so-called unfunded mandates?

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Ms. DOUGLAS. I believe that I think we can’t change the mandates without getting a lot of warning to a municipality, first of all.

I think you have to give us warning like you were talking about.

Second, I think that we need to have input on that. We need to

have input. Right now the SEC is taking comments on what it is

going to cost governments and how many people are going to have

to be registered under this new proposed rule. I am glad that they

are taking comments, because they are going to hear from me

about what it is going to cost me.

I think, as well, that if you have a city that is showing itself to

be a quality city in all these regards, I believe that they should I

don’t want to say have less requirements on them, but I think that

it should be understood that this city is already in compliance. The

bottom line is every decision that requires me to fund a mandate

takes money out of my roads, my bridges, my parks, my infrastructure in my city.

So I think we just need to keep that in mind, realize that the

local officials are the ones who are tasked with getting those roads

built.

Mr. CUMMINGS. I see my time is up. Thank you, Mr. Chairman.

Mr. LANKFORD. Mr. Cummings, you had asked a question of all

of them to be able to determine what their suggestions. Would you

like another couple minutes to be able to let the other panelists to

be able to answer?

Mr. CUMMINGS. With unanimous consent, Mr. Chairman.

Mr. LANKFORD. I would absolutely give that unanimous consent.

You bet.

Mr. CUMMINGS. Thank you.

Mr. LANKFORD. Would any other members like to be able to help

answer that question? What the suggestions were, I think was Mr.

Cummings’ question, what their suggestions were for improving

UMRA.

Ms. FANTONE. Going to the work that we did in 2005, we brought

in representatives from all sectors that were involved, I would like

to be able to respond to some of their comments on what would

help. Notably, and I have mentioned two of them already and it

has been part of our discussion, about getting it right in terms of

what is the right relationship with Federal assistance and how

much is involved; also the question of voluntary, is this program

really voluntary.

But the other issue is one of threshold. And for rulemaking the

threshold is in fact a higher bar because they use expenditures

rather than considering that there are other kinds of costs involved

in deciding whether something is in fact a Federal mandate. So you

have to identify it first. And if you take it off the table because you

can’t meet the threshold, then you don’t have the written analysis,

you don’t have that discussion.

So if you go with expenditures, and some of the suggestions were

to broaden it to conform to other definitions where you include lost

revenue, for example, where you include both direct and indirect

costs.

Mr. GRIFFIN. In response to your question, I would refer to my

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ment period such as has been referred to with the SEC, I think it

would be helpful if there could be more in-depth, if you will, a pilot

study of what the impact would actually be in a community or in

a State before the legislation is finalized. I think too often the legislation is generalized, and impacts are perceived but not actually

determined, and I think it would be helpful to have a more indepth analysis actually at the local and the State level.

Ms. DUDLEY. I will just say I agree with all of those suggestions.

Mr. CUMMINGS. Mr. Chairman, thank you very much.

Mr. LANKFORD. You are welcome.

Pleased to be able to recognize Mr. Labrador from Idaho for 5

minutes.

Mr. LABRADOR. Mr. Chairman, as you know, I am new to this

Congress and I don’t have a lot of questions. I just want to thank

you for being here. It is a little bit dumfounding that we are hearing testimony that we have agencies that determine whether

UMRA applies to them or not and we have a bill that is not really

being followed. But I am just going to yield the balance of my time

to the chairman and he is going to have more questions for you.

But I just want to thank you for being here.

Mr. LANKFORD. Thank you very much.

Pleased to be able to recognize Ms. Speier for 5 minutes for questioning.

Ms. SPEIER. Thank you, Mr. Chairman. And thank you to all of

the witnesses that are here today.

Mayor Douglas, you indicated that the city pays the entire cost

of health care premium for the employees, is that——

Ms. DOUGLAS. The employees currently.

Ms. SPEIER. Which is a very rich program. I mean, I can’t imagine many cities or counties or States or Federal Government that

could provide 100 percent coverage for the premium. Having said

that, you indicated that the increase of 20 percent is due, or at

least 15 percent, 141⁄2 percent, is directly attributable to the health

care reform law.

Ms. DOUGLAS. Correct.

Ms. SPEIER. I would like to know how you came up with that figure.

Ms. DOUGLAS. Well, I am going to have to refer you to the consultants that we hire to come up with that figure. We hire a group

that comes in and evaluates our program where, at the beginning

of that.

We, in fact, had the first presentation last week in Edmond.

What they have told us their review to us said that it was directly

attributable to the fact that we have to begin, since we are a selffunded plan, we have to begin to set money aside for the requirement of covering up to 25, dependents up to the age of 25 or 26,

I can’t remember, 26, and that we also have to begin to make accommodations for the pre-existing condition requirements that they

believe are going to lift the amount of claims that we have in our

plan. So they divided it out. We asked specifically for it to be divided out so that we would know what was basically the increase

that we would have seen versus the increase that we are seeing

now.

Ms. SPEIER. So you are totally self-funded.

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Ms. DOUGLAS. We are.

Ms. SPEIER. Which means that you don’t have an insurance company that is providing you benefits.

Ms. DOUGLAS. We have a group. We actually do have a group.

You have a level of insurance that you cover and then you have the

excess——

Ms. SPEIER. You are self-funded for catastrophic.

Ms. DOUGLAS. For a certain amount. Yes, ma’am.

Ms. SPEIER. All right. So you were told, then, that your increases

would go up less than 14 percent had health care reform not

passed?

Ms. DOUGLAS. Yes.

Ms. SPEIER. How did they come up with that?

Ms. DOUGLAS. Again, I am going to have to refer——

Ms. SPEIER. OK. I don’t know that is necessarily all that helpful

to us, then.

Let me ask all of you. You know, I worked in local and State government for many years before I came to Congress, so I am real

familiar with unfunded mandates, and they have been the bane of

my existence for 20 years because it was always the Federal Government imposing a mandate and yet not paying for it. So I don’t

think it is fair and I would agree with all of you who complain

about that. Having said that, first, to be really, I think, productive

here, I think we should hone in on the most egregious unfunded

mandate that you incur. If you can provide that to us.

Mr. GRIFFIN. Well, in my testimony I refer to the BRAC process

and the fact that 26,000 Defense-related employees were transferred to Fort Belvoir from essentially the Metropolitan Washington area, the National Capital Region, and that has imposed a burden on the State and the county primarily to make transportation

improvements to provide access to Fort Belvoir because the road

system serving Fort Belvoir was already at capacity.

So we are having to make significant new investments to facilitate getting people in and out of the fort, while also maintaining

traffic flow past the installation. The primary routes for Fort

Belvoir are Interstate 95 and Route 1, and we have no money

forthcoming from the Defense Department to mitigate those impacts. And that is not something we were really consulted about;

it just happened.

Now, the good news for Fairfax County is it certainly strengthens

the county’s employment base in that part of the county, and we

do appreciate that. But it is offset by a significant taxpayer investment by the locals, in essence, to accommodate that. And that is

probably the most egregious recent example that I could give.

Ms. SPEIER. But there was a cost-benefit associated there. It is

not like a mandate that is imposed without any benefit.

Mr. GRIFFIN. Well, it is debatable whether there is a benefit or

not because, as I indicated, the employees were already in the region. In fact, they were vacating leased office space, which was a

benefit to the private sector, and going into space built on Federal

facilities. So the county no longer accesses the property tax, if you

will, that we benefited from before. So we haven’t done a precise

cost-benefit, but in the long-term I think there is a benefit, but in

the short-term there is a significant cost.

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Ms. SPEIER. Anyone else? Yes, Ms. Dudley?

Ms. DUDLEY. Well, I don’t represent a State or local government,

so I am not sure I would be appropriate, but I thought that the examples in both of our local representatives’ testimony provided illustrations of what they thought were the most egregious examples.

Ms. SPEIER. All right, has my time expired?

Mr. LANKFORD. Yes. Thank you.

Mr. Connolly and I are going to do one more set of questions between the two of us, then we are very, very grateful for the time

you all have. Let me just followup on a couple of things.

Mayor Douglas, if you would like to submit the statement from

the consultant just as background on that, you are welcome to do

that and I would be glad to be able to pass it on to Ms. Speier, so

we would be able to get the information on that.

Ms. DOUGLAS. Certainly.

Mr. LANKFORD. The question that you had raised on this, mayor,

was you need more warning, more advanced information. What is

an appropriate amount of time to say if this mandate is coming,

3 months, 6 months, 2 years, 5 years? What would just a ballpark

on that?

Ms. DOUGLAS. Well, we budget out 5 years. Not all cities do that,

but we try to look at a 5-year plan. I am not saying that we need

5 years, but we need adequate time to get that rolled into our

budget. When these rules come down and you find out that you are

going to have to spend $400,000 out of your general fund in the

next year, that is a near impossibility for a city the size of mine

to do. So I would say take into consideration the fact that we have

a 1-year budget cycle, so rules need to accommodate that.

I also believe that it is really important to note that what some

of the panelists have talked about is direct and indirect costs, and

you can’t always determine the indirect costs quickly; it takes you

a little while to get a handle on what some of those indirect costs

are. For example, that NIMS training. It took us a while to get a

handle on how much it was going to cost us to comply with the

homeland security requirements.

So we thought at first it was going to be a small amount of

money and now it has come out to be, in 2 years, $310,000, which

is not small to my general fund. So I would urge caution in rules

like that. I would urge that you understand that it is local governments that are going to be funding things like that and you look

at whether or not you are actually getting a benefit out of them for

the costs that it is costing to those of us who are the rubber meeting the road. I liked your phrase.

Mr. LANKFORD. Have to bear the burden.

Ms. Dudley, let me ask you this. There is some concern to say

that the input—and Mayor Douglas mentioned it as well—they just

want input on it, that an agency could create a rule, seek public

comment. Do they have to abide by that public comment? If there

were 500 comments all saying this is a bad idea, do they have to

respond and say, no, we can do it? Is it typical for them to be responsive on that? What have you experienced?

Ms. DUDLEY. There are several requirements on agencies to respond to public comment. Probably the most important of which is

65

the Administrative Procedure Act, which does involve judicial review. And if an agency ignored all their comments, the courts

would be able to find that it was arbitrary and capricious and could

send it back, send the rule back to the agency.

Mr. LANKFORD. How do we get, then, public comment from municipalities to say this is a possible unfunded mandate that is coming down? How do we allow municipalities to do that in a reasonable way?

Ms. DUDLEY. Well, agencies try to notify potentially affected parties as early in the process as possible, and they are required to

not only under UMRA, but also under the federalism Executive

order. In fact, I am on the Administrative Conference of the United

States, and we just came out with new recommendations on Federal preemption and how agencies should spend more time consulting with State, local, and tribal interests before issuing regulations

that will have those impacts.

Mr. LANKFORD. Mayor, are you experiencing that? And I could

ask the same thing of Mr. Griffin. Do you feel like you are getting—that is the rule. Do you feel like you are getting information

to say this is coming, preparatory information?

Ms. DOUGLAS. Well, we were notified. We read articles about the

SEC proposal to comply with the Dodd-Frank act. So we read about

that. My city treasurer came to me and said, OK, I think this impacts more than just the city treasurer’s office. And then there was

an article I believe in the Wall Street Journal talking about how

it is going to affect volunteer boards, and there were comments

from several State-wide treasurers.

Mr. LANKFORD. But that is not actually coming from an official

Federal source on that.

Ms. DOUGLAS. That is not actually coming from an official Federal source.

Mr. LANKFORD. Mr. Griffin, have you experienced the Federal

Government contacting you and trying to get input and say this is

a consideration that is going on?

Mr. GRIFFIN. Generally not. Most of my information comes from

my staff, who either read the Federal Register or through professional associations that have notice. Or your Congressman, that is

true.

Mr. LANKFORD. Let me ask one more quick statement.

Ms. Dudley, a couple comments have been made about EPA, and

I note your comments earlier on that from my wonderful ranking

member on it about air quality standards and such. Would that fall

under an unfunded mandate as it currently stands now?

Ms. DUDLEY. No.

Mr. LANKFORD. OK. So that is outside of what is—though a city

or municipality may have to spend millions of dollars in readjusting that, that would not be considered an unfunded mandate according to law at this point.

Ms. DUDLEY. That is right, for several reasons. That is right.

Mr. LANKFORD. OK. Great. Those are all the questions that I

had. I would be glad to be able to yield some time to my ranking

member, Mr. Connolly.

Mr. CONNOLLY. Thank you again, Mr. Chairman. Before Mr.

Cummings leaves, I do want you all to know that Mr. Cummings

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and I practice what we preach. With his leadership, we introduced

a bill to regulate, further regulate, frankly, water quality for the

Chesapeake Bay in the last Congress, and we created a new standard for local governments in the watershed to have low development impacts, to have one standard that applied to everyone.

But we funded it. We provided a substantial amount of money

for local governments to apply for grants to fully comply with the

new standard. And ours was the only bill that did that, but because

we were sensitive to this very issue, I just thought for the record,

Mr. Chairman, we would point out we practice what we preach.

And I thank my colleague, Elijah Cummings, for his leadership.

Ms. Dudley, you, in your testimony, talked about, and I certainly

am intrigued and would welcome working with my chairman and

others on the committee on tightening up UMRA. I am all in favor

of it. As somebody with big local government background, it drove

me crazy, and I will start with No Child Left Behind. Good intentions. Unfunded. Too rigid. And I fought with the previous administration and their secretary of education very publicly about this

issue, so I can’t wait to address it in this Congress.

However, you talked about maybe creating a new judicial standard that would make it easier to seek an injunction to stay the implementation of a new regulation. Do you want to just expand on

that?

And then I want to follow up, if I may, Mr. Chairman, with Ms.

Fantone as a followup to your answer, Ms. Dudley.

Ms. DUDLEY. The reason I suggested that is I was trying to find

ways identifying why it has not been more effective, and one of the

reasons it hasn’t is even when analysis is required, that is all that

the act does, is require the analysis. And, as we have discussed, it

is a small subset of the rules that a normal person might think is

an unfunded mandate that actually gets covered. The analysis, as

UMRA states, isn’t to say let’s not do this regulation, so it is not

deregulatory; it is really a transparent accounting of the information that we know about the costs and the benefits.

As Mr. Griffin says, let’s do a balancing. So it requires, among

the alternatives you look at, look at the costs, look at the benefits,

qualitative as well as quantitative, and find that least costly, least

burdensome or most cost-effective alternative. There is nothing in

the statute that provides any checks and balances on that, either

from OMB or from the courts. So that would be a suggestion. Perhaps modest was not right, perhaps it is not a modest suggestion,

but would be to allow the courts to say, well, the analysis didn’t

demonstrate that you have chosen the least costly approach you

could.

Mr. CONNOLLY. Right. Let me just ask, though, in the category

of perhaps unintended consequences, because everything you just

said sounds awfully reasonable to me. Why wouldn’t you do that?

But in looking at the language of the statute on the books, it expressly provides that an agency’s failure to perform any estimate

analysis statement or description cannot be used, cannot be used

as a basis for delaying or invalidating a rule. So what we just

talked about would actually significantly alter the current statutory language on UMRA.

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Ms. Fantone, in that report issued 2 years ago, GAO said that,

in terms of the average rulemaking, new rule, it takes 4 years. If

we were to change the judicial review language in UMRA, what

might that 4-year review process now look like?

Ms. FANTONE. You asked me the question that is difficult for me

to answer first because, again, I am not a lawyer either, and judicial review is not an area that I feel qualified to talk about. The

report you are referring to is a Federal rulemaking report in which

we tried to identify how long something takes, what are the resources; and, frankly, we got a very mixed response. A lot of it has

to do with the complexity of the rules themselves and to come up

with sort of a this is the proper amount of time is not going to be

something that I think is a fruitful direction.

I would like to add to some of the comments that have already

been made in terms of suggestions of what Congress could revisit,

and I think address some of the questions here, which is right now

there is an exclusion for those that don’t go through proposed rulemaking. So that would be an area to revisit, whether there is opportunities there to get some of the information that would help

balance the equation a bit. And then adding to that would be retrospective analysis, which potentially could improve cost-benefit analysis by looking back and seeing, well how well did agencies do in

estimating these.

So I am sorry I didn’t answer your question directly, but I think

these are other things that might assist.

Mr. CONNOLLY. I thank you.

And my time is up. Thank you, Mr. Chairman.

Mr. LANKFORD. Thank you.

And thank you to all of our witnesses for taking time to be able

to be here. I want you to know all of this is recorded and written

down and is reviewed. In fact, in preparing for this particular hearing, I was going back through the notes from the 2005 and previous

hearings where we have been dealing with these issues before. In

fact, the ranking member, Mr. Connolly was actually on the other

side of this table in 2005. I was going through the notes on that,

as a witness there. So these are very important comments. They

are held in record and there will be decisions that will be made in

future days based on much of the input that you have given. Thank

you very much for being here.

With that, the committee stands adjourned.

[Whereupon, at 10:48 a.m., the subcommittee was adjourned.]

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