II

Calendar No. 13

104TH CONGRESS

1ST SESSION S. 169

To curb the practice of imposing unfunded Federal mandates on States

and local governments; to strengthen the partnership between the Federal

Government and State, local and tribal governments; to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate funding,

in a manner that may displace other essential governmental priorities;

and to ensure that the Federal Government pays the costs incurred

by those governments in complying with certain requirements under

Federal statutes and regulations; and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 5, 1995

Mr. GRASSLEY (for Mr. KEMPTHORNE) introduced the following bill; which

was read the first time

JANUARY 9, 1995

Read the second time and placed on the calendar

A BILL

To curb the practice of imposing unfunded Federal mandates

on States and local governments; to strengthen the partnership between the Federal Government and State, local

and tribal governments; to end the imposition, in the

absence of full consideration by Congress, of Federal

mandates on State, local, and tribal governments without

adequate funding, in a manner that may displace other
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essential governmental priorities; and to ensure that the

Federal Government pays the costs incurred by those

governments in complying with certain requirements

under Federal statutes and regulations; and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Unfunded Mandate

5 Reform Act of 1995’’.

6 SEC. 2. PURPOSES.

7 The purposes of this Act are—

8 (1) to strengthen the partnership between the

9 Federal Government and States, local governments,

10 and tribal governments;

11 (2) to end the imposition, in the absence of full

12 consideration by Congress, of Federal mandates on

13 States, local governments, and tribal governments

14 without adequate Federal funding, in a manner that

15 may displace other essential State, local, and tribal

16 governmental priorities;

17 (3) to assist Congress in its consideration of

18 proposed legislation establishing or revising Federal

19 programs containing Federal mandates affecting

20 States, local governments, tribal governments, and

21 the private sector by—
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1 (A) providing for the development of infor2 mation about the nature and size of mandates

3 in proposed legislation; and

4 (B) establishing a mechanism to bring

5 such information to the attention of the Senate

6 and the House of Representatives before the

7 Senate and the House of Representatives vote

8 on proposed legislation;

9 (4) to promote informed and deliberate deci10 sions by Congress on the appropriateness of Federal

11 mandates in any particular instance;

12 (5) to require that Congress consider whether

13 to provide funding to assist State, local, and tribal

14 governments in complying with Federal mandates, to

15 require analyses of the impact of private sector man16 dates, and through the dissemination of that infor17 mation provide informed and deliberate decisions by

18 Congress and Federal agencies and retain competi19 tive balance between the public and private sectors;

20 (6) to establish a point-of-order vote on the con21 sideration in the Senate and House of Representa22 tives of legislation containing significant Federal

23 mandates; and
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1 (7) to assist Federal agencies in their consider2 ation of proposed regulations affecting States, local

3 governments, and tribal governments, by—

4 (A) requiring that Federal agencies de5 velop a process to enable the elected and other

6 officials of States, local governments, and tribal

7 governments to provide input when Federal

8 agencies are developing regulations; and

9 (B) requiring that Federal agencies pre10 pare and consider better estimates of the budg11 etary impact of regulations containing Federal

12 mandates upon States, local governments, and

13 tribal governments before adopting such regula14 tions, and ensuring that small governments are

15 given special consideration in that process.

16 SEC. 3. DEFINITIONS.

17 (a) IN GENERAL.—For purposes of this Act—

18 (1) the terms defined under paragraphs (11)

19 through (21) of section 3 of the Congressional

20 Budget and Impoundment Control Act of 1974 (as

21 added by subsection (b) of this section) shall have

22 the meanings as so defined; and

23 (2) the term ‘‘Director’’ means the Director of

24 the Congressional Budget Office.
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1 (b) CONGRESSIONAL BUDGET AND IMPOUNDMENT

2 CONTROL ACT OF 1974.—Section 3 of the Congressional

3 Budget and Impoundment Control Act of 1974 is amend4 ed by adding at the end thereof the following new para5 graphs:

6 ‘‘(11) The term ‘Federal intergovernmental

7 mandate’ means—

8 ‘‘(A) any provision in legislation, statute,

9 or regulation that—

10 ‘‘(i) would impose an enforceable duty

11 upon States, local governments, or tribal

12 governments, except—

13 ‘‘(I) a condition of Federal as14 sistance; or

15 ‘‘(II) a duty arising from partici16 pation in a voluntary Federal pro17 gram, except as provided in subpara18 graph (B)); or

19 ‘‘(ii) would reduce or eliminate the

20 amount of authorization of appropriations

21 for Federal financial assistance that would

22 be provided to States, local governments,

23 or tribal governments for the purpose of

24 complying with any such previously im-
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1 posed duty unless such duty is reduced or

2 eliminated by a corresponding amount; or

3 ‘‘(B) any provision in legislation, statute,

4 or regulation that relates to a then-existing

5 Federal program under which $500,000,000 or

6 more is provided annually to States, local gov7 ernments, and tribal governments under entitle8 ment authority, if the provision—

9 ‘‘(i)(I) would increase the stringency

10 of conditions of assistance to States, local

11 governments, or tribal governments under

12 the program; or

13 ‘‘(II) would place caps upon, or other14 wise decrease, the Federal Government’s

15 responsibility to provide funding to States,

16 local governments, or tribal governments

17 under the program; and

18 ‘‘(ii) the States, local governments, or

19 tribal governments that participate in the

20 Federal program lack authority under that

21 program to amend their financial or pro22 grammatic responsibilities to continue pro23 viding required services that are affected

24 by the legislation, statute or regulation.
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1 ‘‘(12) The term ‘Federal private sector man2 date’ means any provision in legislation, statute, or

3 regulation that—

4 ‘‘(A) would impose an enforceable duty

5 upon the private sector except—

6 ‘‘(i) a condition of Federal assistance;

7 or

8 ‘‘(ii) a duty arising from participation

9 in a voluntary Federal program; or

10 ‘‘(B) would reduce or eliminate the amount

11 of authorization of appropriations for Federal

12 financial assistance that will be provided to the

13 private sector for the purposes of ensuring com14 pliance with such duty.

15 ‘‘(13) The term ‘Federal mandate’ means a

16 Federal intergovernmental mandate or a Federal

17 private sector mandate, as defined in paragraphs

18 (11) and (12).

19 ‘‘(14) The terms ‘Federal mandate direct costs’

20 and ‘direct costs’—

21 ‘‘(A)(i) in the case of a Federal intergov22 ernmental mandate, mean the aggregate esti23 mated amounts that all States, local govern24 ments, and tribal governments would be re-
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1 quired to spend in order to comply with the

2 Federal intergovernmental mandate; or

3 ‘‘(ii) in the case of a provision referred to

4 in paragraph (11)(A)(ii), mean the amount of

5 Federal financial assistance eliminated or re6 duced.

7 ‘‘(B) in the case of a Federal private sec8 tor mandate, mean the aggregate estimated

9 amounts that the private sector will be required

10 to spend in order to comply with the Federal

11 private sector mandate;

12 ‘‘(C) shall not include—

13 ‘‘(i) estimated amounts that the

14 States, local governments, and tribal gov15 ernments ( in the case of a Federal inter16 governmental mandate) or the private sec17 tor (in the case of a Federal private sector

18 mandate) would spend—

19 ‘‘(I) to comply with or carry out

20 all applicable Federal, State, local,

21 and tribal laws and regulations in ef22 fect at the time of the adoption of the

23 Federal mandate for the same activity

24 as is affected by that Federal man25 date; or
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1 ‘‘(II) to comply with or carry out

2 State, local governmental, and tribal

3 governmental programs, or private4 sector business or other activities in

5 effect at the time of the adoption of

6 the Federal mandate for the same ac7 tivity as is affected by that mandate;

8 or

9 ‘‘(ii) expenditures to the extent that

10 such expenditures will be offset by any di11 rect savings to the States, local govern12 ments, and tribal governments, or by the

13 private sector, as a result of—

14 ‘‘(I) compliance with the Federal

15 mandate; or

16 ‘‘(II) other changes in Federal

17 law or regulation that are enacted or

18 adopted in the same bill or joint reso19 lution or proposed or final Federal

20 regulation and that govern the same

21 activity as is affected by the Federal

22 mandate; and

23 ‘‘(D) shall be determined on the assump24 tion that State, local, and tribal governments,

25 and the private sector will take all reasonable
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1 steps necessary to mitigate the costs resulting

2 from the Federal mandate, and will comply with

3 applicable standards of practice and conduct es4 tablished by recognized professional or trade as5 sociations. Reasonable steps to mitigate the

6 costs shall not include increases in State, local,

7 or tribal taxes or fees.

8 ‘‘(15) The term ‘amount’ means the amount of

9 budget authority for any Federal grant assistance

10 program or any Federal program providing loan

11 guarantees or direct loans.

12 ‘‘(16) The term ‘private sector’ means individ13 uals, partnerships, associations, corporations, busi14 ness trusts, or legal representatives, organized

15 groups of individuals, and educational and other

16 nonprofit institutions.

17 ‘‘(17) The term ‘local government’ has the same

18 meaning as in section 6501(6) of title 31, United

19 States Code.

20 ‘‘(18) The term ‘tribal government’ means any

21 Indian tribe, band, nation, or other organized group

22 or community, including any Alaska Native village

23 or regional or village corporation as defined in or es24 tablished pursuant to the Alaska Native Claims Set25 tlement Act (83 Stat. 688; 43 U.S.C. 1601 et seq.)
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1 which is recognized as eligible for the special pro2 grams and services provided by the United States to

3 Indians because of their special status as Indians.

4 ‘‘(19) The term ‘small government’ means any

5 small governmental jurisdictions defined in section

6 601(5) of title 5, United States Code, and any tribal

7 government.

8 ‘‘(20) The term ‘State’ has the same meaning

9 as in section 6501(9) of title 31, United State

10 Code.’’

11 ‘‘(21) The term ‘agency’ has the meaning as de12 fined in section 551(1) of title 5, United States

13 Code, but does not include independent regulatory

14 agencies, as defined in section 3502(10) of title 44,

15 United States Code.

16 ‘‘(22) The term ‘regulation’ or ‘rule’ has the

17 meaning of ‘‘rule’’ as defined in section 601(2) of

18 title 5, United States Code.’’.

19 SEC. 4. EXCLUSIONS.

20 The provisions of this Act and the amendments made

21 by this Act shall not apply to any provision in a bill or

22 joint resolution before Congress and any provision in a

23 proposed or final Federal regulation that—

24 (1) enforces constitutional rights of individuals;
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1 (2) establishes or enforces any statutory rights

2 that prohibit discrimination on the basis of race, re3 ligion, gender, national origin, or handicapped or

4 disability status;

5 (3) requires compliance with accounting and

6 auditing procedures with respect to grants or other

7 money or property provided by the United States

8 Government;

9 (4) provides for emergency assistance or relief

10 at the request of any State, local, or tribal govern11 ment or any official of a State, local, or tribal gov12 ernment;

13 (5) is necessary for the national security or the

14 ratification or implementation of international treaty

15 obligations; or

16 (6) the President designates as emergency legis17 lation and that the Congress so designates in stat18 ute.

19 SEC. 5. AGENCY ASSISTANCE.

20 Each agency shall provide to the Director of the Con21 gressional Budget Office such information and assistance

22 as the Director may reasonably request to assist the Direc23 tor in carrying out this Act.
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1 TITLE I—LEGISLATIVE

2 ACCOUNTABILITY AND REFORM

3 SEC. 101. LEGISLATIVE MANDATE ACCOUNTABILITY AND

4 REFORM .

5 (a) IN GENERAL.—Title IV of the Congressional

6 Budget and Impoundment Control Act of 1974 is amend7 ed by adding at the end thereof the following new section:

8 ‘‘SEC. 408. LEGISLATIVE MANDATE ACCOUNTABILITY AND

9 REFORM .

10 ‘‘(a) DUTIES OF CONGRESSIONAL COMMITTEES.—

11 ‘‘(1) IN GENERAL.—When a committee of au12 thorization of the Senate or the House of Represent13 atives reports a bill or joint resolution of public

14 character that includes any Federal mandate, the re15 port of the committee accompanying the bill or joint

16 resolution shall contain the information required by

17 paragraphs (3) and (4).

18 ‘‘(2) SUBMISSION OF BILLS TO THE DIREC19 TOR.—When a committee of authorization of the

20 Senate or the House of Representatives orders re21 ported a bill or joint resolution of a public character,

22 the committee shall promptly provide the bill or joint

23 resolution to the Director of the Congressional

24 Budget Office and shall identify to the Director any

25 Federal mandates contained in the bill or resolution.
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1 ‘‘(3) REPORTS ON FEDERAL MANDATES.—Each

2 report described under paragraph (1) shall con3 tain—

4 ‘‘(A) an identification and description of

5 any Federal mandates in the bill or joint resolu6 tion, including the expected direct costs to

7 State, local, and tribal governments, and to the

8 private sector, required to comply with the Fed9 eral mandates;

10 ‘‘(B) a qualitative, and if practicable, a

11 quantitative assessment of costs and benefits

12 anticipated from the Federal mandates (includ13 ing the effects on health and safety and the

14 protection of the natural environment); and

15 ‘‘(C) a statement of the degree to which a

16 Federal mandate affects both the public and

17 private sectors and the extent to which Federal

18 payment of public sector costs would affect the

19 competitive balance between State, local, or

20 tribal governments and privately owned busi21 nesses.

22 ‘‘(4) INTERGOVERNMENTAL MANDATES.—If any

23 of the Federal mandates in the bill or joint resolu24 tion are Federal intergovernmental mandates, the
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1 report required under paragraph (1) shall also con2 tain—

3 ‘‘(A)(i) a statement of the amount, if any,

4 of increase or decrease in authorization of ap5 propriations under existing Federal financial

6 assistance programs, or of authorization of ap7 propriations for new Federal financial assist8 ance, provided by the bill or joint resolution and

9 usable for activities of State, local, or tribal

10 governments subject to the Federal intergovern11 mental mandates; and

12 ‘‘(ii) a statement of whether the committee

13 intends that the Federal intergovernmental

14 mandates be partly or entirely unfunded, and if

15 so, the reasons for that intention; and

16 ‘‘(B) any existing sources of Federal as17 sistance in addition to those identified in sub18 paragraph (A) that may assist State, local, and

19 tribal governments in meeting the direct costs

20 of the Federal intergovernmental mandates.

21 ‘‘(5) PREEMPTION CLARIFICATION AND INFOR22 MATION.—When a committee of authorization of the

23 Senate or the House of Representatives reports a

24 bill or joint resolution of public character, the com25 mittee report accompanying the bill or joint resolu-
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1 tion shall contain, if relevant to the bill or joint reso2 lution, an explicit statement on the extent to which

3 the bill or joint resolution preempts any State, local,

4 or tribal law, and, if so, an explanation of the rea5 sons for such preemption.

6 ‘‘(6) PUBLICATION OF STATEMENT FROM THE

7 DIRECTOR.—

8 ‘‘(A) Upon receiving a statement (includ9 ing any supplemental statement) from the Di10 rector under subsection (b)(1), a committee of

11 the Senate or the House of Representatives

12 shall publish the statement in the committee re13 port accompanying the bill or joint resolution to

14 which the statement relates if the statement is

15 available at the time the report is printed.

16 ‘‘(B) If the statement is not published in

17 the report, or if the bill or joint resolution to

18 which the statement relates is expected to be

19 considered by the Senate or the House of Rep20 resentatives before the report is published, the

21 committee shall cause the statement, or a sum22 mary thereof, to be published in the Congres23 sional Record in advance of floor consideration

24 of the bill or joint resolution.

25 ‘‘(b) DUTIES OF THE DIRECTOR.—
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1 ‘‘(1) STATEMENTS ON BILLS AND JOINT RESO2 LUTIONS OTHER THAN APPROPRIATIONS BILLS AND

3 JOINT RESOLUTIONS.—

4 ‘‘(A) FEDERAL INTERGOVERNMENTAL

5 MANDATES IN REPORTED BILLS AND RESOLU6 TIONS.—For each bill or joint resolution of a

7 public character reported by any committee of

8 authorization of the Senate or the House of

9 Representatives, the Director of the Congres10 sional Budget Office shall prepare and submit

11 to the committee a statement as follows:

12 ‘‘(i) If the Director estimates that the

13 direct cost of all Federal intergovernmental

14 mandates in the bill or joint resolution will

15 equal or exceed $50,000,000 (adjusted an16 nually for inflation) in the fiscal year in

17 which any Federal intergovernmental man18 date in the bill or joint resolution (or in

19 any necessary implementing regulation)

20 would first be effective or in any of the 4

21 fiscal years following such fiscal year, the

22 Director shall so state, specify the esti23 mate, and briefly explain the basis of the

24 estimate.
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1 ‘‘(ii) The estimate required under

2 clause (i) shall include estimates (and brief

3 explanations of the basis of the estimates)

4 of—

5 ‘‘(I) the total amount of direct

6 cost of complying with the Federal

7 intergovernmental mandates in the

8 bill or joint resolution; and

9 ‘‘(II) the amount, if any, of in10 crease in authorization of appropria11 tions under existing Federal financial

12 assistance programs, or of authoriza13 tion of appropriations for new Federal

14 financial assistance, provided by the

15 bill or joint resolution and usable by

16 State, local, or tribal governments for

17 activities subject to the Federal inter18 governmental mandates.

19 ‘‘(B) FEDERAL PRIVATE SECTOR MAN20 DATES IN REPORTED BILLS AND JOINT RESO21 LUTIONS.—For each bill or joint resolution of a

22 public character reported by any committees of

23 authorization of the Senate or the House of

24 Representatives, the Director of the Congres-
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1 sional Budget Office shall prepare and submit

2 to the committee a statement as follows:

3 ‘‘(i) If the Director estimates that the

4 direct cost of all Federal private sector

5 mandates in the bill or joint resolution will

6 equal or exceed $200,000,000 (adjusted

7 annually for inflation) in the fiscal year in

8 which any Federal private sector mandate

9 in the bill or joint resolution (or in any

10 necessary implementing regulation) would

11 first be effective or in any of the 4 fiscal

12 years following such fiscal year, the Direc13 tor shall so state, specify the estimate, and

14 briefly explain the basis of the estimate.

15 ‘‘(ii) Estimates required under this

16 subparagraph shall include estimates (and

17 a brief explanation of the basis of the esti18 mates) of—

19 ‘‘(I) the total amount of direct

20 costs of complying with the Federal

21 private sector mandates in the bill or

22 joint resolution; and

23 ‘‘(II) the amount, if any, of in24 crease in authorization of appropria25 tions under existing Federal financial
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1 assistance programs, or of authoriza2 tion of appropriations for new Federal

3 financial assistance, provided by the

4 bill or joint resolution usable by the

5 private sector for the activities subject

6 to the Federal private sector man7 dates.

8 ‘‘(iii) If the Director determines that

9 it is not feasible to make a reasonable esti10 mate that would be required under clauses

11 (i) and (ii), the Director shall not make

12 the estimate, but shall report in the state13 ment that the reasonable estimate cannot

14 be made and shall include the reasons for

15 that determination in the statement.

16 ‘‘(C) LEGISLATION FALLING BELOW THE

17 DIRECT COSTS THRESHOLDS.—If the Director

18 estimates that the direct costs of a Federal

19 mandate will not equal or exceed the thresholds

20 specified in paragraphs (A) and (B), the Direc21 tor shall so state and shall briefly explain the

22 basis of the estimate.

23 ‘‘(c) LEGISLATION SUBJECT TO POINT OF ORDER IN

24 THE SENATE.—
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1 ‘‘(1) IN GENERAL.—It shall not be in order in

2 the Senate to consider—

3 ‘‘(A) any bill or joint resolution that is re4 ported by a committee unless the committee has

5 published a statement of the Director on the di6 rect costs of Federal mandates in accordance

7 with subsection (a)(6) before such consider8 ation; and

9 ‘‘(B) any bill, joint resolution, amendment,

10 motion, or conference report that would in11 crease the direct costs of Federal intergovern12 mental mandates by an amount that causes the

13 thresholds specified in subsection (b)(1)(A)(i) to

14 be exceeded, unless—

15 ‘‘(i) the bill, joint resolution, amend16 ment, motion, or conference report pro17 vides direct spending authority for each

18 fiscal year for the Federal intergovern19 mental mandates included in the bill, joint

20 resolution, amendment, motion, or con21 ference report in an amount that is equal

22 to the estimated direct costs of such man23 date;

24 ‘‘(ii) the bill, joint resolution, amend25 ment, motion, or conference report pro-
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1 vides an increase in receipts and an in2 crease in direct spending authority for

3 each fiscal year for the Federal intergov4 ernmental mandates included in the bill,

5 joint resolution, amendment, motion, or

6 conference report in an amount equal to

7 the estimated direct costs of such mandate;

8 or

9 ‘‘(iii) the bill, joint resolution, amend10 ment, motion, or conference report in11 cludes an authorization for appropriations

12 in an amount equal to the estimated direct

13 costs of such mandate, and—

14 ‘‘(I) identifies a specific dollar

15 amount estimate of the full direct

16 costs of the mandate for each year or

17 other period during which the man18 date shall be in effect under the bill,

19 joint resolution, amendment, motion

20 or conference report, and such esti21 mate is consistent with the estimate

22 determined under paragraph (3) for

23 each fiscal year;

24 ‘‘(II) identifies any appropriation

25 bill that is expected to provide for
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1 Federal funding of the direct cost re2 ferred to under subclause (IV)(aa);

3 ‘‘(III) identifies the minimum

4 amount that must be appropriated in

5 each appropriations bill referred to in

6 subclause (II), in order to provide for

7 full Federal funding of the direct

8 costs referred to in subclause (I); and

9 ‘‘(IV)(aa) designates a respon10 sible Federal agency and establishes

11 criteria and procedures under which

12 such agency shall implement less cost13 ly programmatic and financial respon14 sibilities of State, local, and tribal

15 governments in meeting the objectives

16 of the mandate, to the extent that an

17 appropriation Act does not provide for

18 the estimated direct costs of such

19 mandate as set forth under subclause

20 (III); or

21 ‘‘(bb) designates a responsible

22 Federal agency and establishes cri23 teria and procedures to direct that, if

24 an appropriation Act does not provide

25 for the estimated direct costs of such
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1 mandate as set forth under subclause

2 (III), such agency shall declare such

3 mandate to be ineffective as of Octo4 ber 1 of the fiscal year for which the

5 appropriation is not at least equal to

6 the direct costs of the mandate.

7 ‘‘(2) RULE OF CONSTRUCTION.—The provisions

8 of paragraph (1)(B)(iii)(IV)(aa) shall not be con9 strued to prohibit or otherwise restrict a State, local,

10 or tribal government from voluntarily electing to re11 main subject to the original Federal intergovern12 mental mandate, complying with the programmatic

13 or financial responsibilities of the original Federal

14 intergovernmental mandate and providing the fund15 ing necessary consistent with the costs of Federal

16 agency assistance, monitoring, and enforcement.

17 ‘‘(3) COMMITTEE ON APPROPRIATIONS.—Para18 graph (1) shall not apply to matters that are within

19 the jurisdiction of the Committee on Appropriations

20 of the Senate or the House of Representatives.

21 ‘‘(4) DETERMINATION OF APPLICABILITY TO

22 PENDING LEGISLATION.—For purposes of this sub23 section, on questions regarding the applicability of

24 this Act to a pending bill, joint resolution, amend25 ment, motion, or conference report, the Committee
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1 on Governmental Affairs of the Senate, or the Com2 mittee on Government Reform and Oversight of the

3 House of Representatives, as applicable, shall have

4 the authority to make the final determination.

5 ‘‘(5) DETERMINATIONS OF FEDERAL MANDATE

6 LEVELS.—For the purposes of this subsection, the

7 levels of Federal mandates for a fiscal year shall be

8 determined based on the estimates made by the

9 Committee on the Budget of the Senate or the

10 House of Representatives, as the case may be.

11 ‘‘(d) ENFORCEMENT IN THE HOUSE OF REPRESENT12 ATIVES.—It shall not be in order in the House of Rep13 resentatives to consider a rule or order that waives the

14 application of subsection (c) to a bill or joint resolution

15 reported by a committee of authorization.’’.

16 (b) TECHNICAL AND CONFORMING AMENDMENT.—

17 The table of contents in section 1(b) of the Congressional

18 Budget and Impoundment Control Act of 1974 is amend19 ed by adding after the item relating to section 407 the

20 following new item:

‘‘Sec. 408. Legislative mandate accountability and reform.’’.

21 SEC. 102. ENFORCEMENT IN THE HOUSE OF REPRESENTA22 TIVES.

23 (a) MOTIONS TO STRIKE IN THE COMMITTEE OF THE

24 WHOLE.—Clause 5 of rule XXIII of the Rules of the
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1 House of Representatives is amended by adding at the end

2 the following:

3 ‘‘(c) In the consideration of any measure for amend4 ment in the Committee of the Whole containing any Fed5 eral mandate the direct costs of which exceed the threshold

6 in section 408(c) of the Unfunded Mandate Reform Act

7 of 1995, it shall always be in order, unless specifically

8 waived by terms of a rule governing consideration of that

9 measure, to move to strike such Federal mandate from

10 the portion of the bill then open to amendment.’’.

11 (b) COMMITTEE ON RULES REPORTS ON WAIVED

12 POINTS OF ORDER.—The Committee on Rules shall in13 clude in the report required by clause 1(d) of Rule XI (re14 lating to its activities during the Congress) of the Rules

15 of the House of Representatives a separate item identify16 ing all waivers of points of order relating to Federal man17 dates, listed by bill or joint resolution number and the sub18 ject matter of that measure.

19 SEC. 103. ASSISTANCE TO COMMITTEES AND STUDIES.

20 The Congressional Budget and Impoundment Control

21 Act of 1974 is amended—

22 (1) in section 202—

23 (A) in subsection (c)—

24 (i) by redesignating paragraph (2) as

25 paragraph (3); and
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1 (ii) by inserting after paragraph (1)

2 the following new paragraph:

3 ‘‘(2) At the request of any committee of the

4 Senate or the House of Representatives, the Office

5 shall, to the extent practicable, consult with and as6 sist such committee in analyzing the budgetary or fi7 nancial impact of any proposed legislation that may

8 have—

9 ‘‘(A) a significant budgetary impact on

10 State, local, or tribal governments; or

11 ‘‘(B) a significant financial impact on the

12 private sector.’’;

13 (B) by amending subsection (h) to read as

14 follows:

15 ‘‘(h) STUDIES.—

16 ‘‘(1) CONTINUING STUDIES.—The Director of

17 the Congressional Budget Office shall conduct con18 tinuing studies to enhance comparisons of budget

19 outlays, credit authority, and tax expenditures.

20 ‘‘(2) FEDERAL MANDATE STUDIES.—

21 ‘‘(A) At the request of any Chairman or

22 ranking member of the minority of a Committee

23 of the Senate or the House of Representatives,

24 the Director shall, to the extent practicable,
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1 conduct a study of a Federal mandate legisla2 tive proposal.

3 ‘‘(B) In conducting a study on intergovern4 mental mandates under subparagraph (A), the

5 Director shall—

6 ‘‘(i) solicit and consider information

7 or comments from elected officials (includ8 ing their designated representatives) of

9 State, local, or tribal governments as may

10 provide helpful information or comments;

11 ‘‘(ii) consider establishing advisory

12 panels of elected officials or their des13 ignated representatives, of State, local, or

14 tribal governments if the Director deter15 mines that such advisory panels would be

16 helpful in performing responsibilities of the

17 Director under this section; and

18 ‘‘(iii) if, and to the extent that the Di19 rector determines that accurate estimates

20 are reasonably feasible, include estimates

21 of—

22 ‘‘(I) the future direct cost of the

23 Federal mandate to the extent that

24 such costs significantly differ from or
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1 extend beyond the 5-year period after

2 the mandate is first effective; and

3 ‘‘(II) any disproportionate budg4 etary effects of Federal mandates

5 upon particular industries or sectors

6 of the economy, States, regions, and

7 urban or rural or other types of com8 munities, as appropriate.

9 ‘‘(C) In conducting a study on private sec10 tor mandates under subparagraph (A), the Di11 rector shall provide estimates, if and to the ex12 tent that the Director determines that such es13 timates are reasonably feasible, of—

14 ‘‘(i) future costs of Federal private

15 sector mandates to the extent that such

16 mandates differ significantly from or ex17 tend beyond the 5-year time period re18 ferred to in subparagraph (B)(iii)(I);

19 ‘‘(ii) any disproportionate financial ef20 fects of Federal private sector mandates

21 and of any Federal financial assistance in

22 the bill or joint resolution upon any par23 ticular industries or sectors of the econ24 omy, States, regions, and urban or rural or

25 other types of communities; and
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1 ‘‘(iii) the effect of Federal private sec2 tor mandates in the bill or joint resolution

3 on the national economy, including the ef4 fect on productivity, economic growth, full

5 employment, creation of productive jobs,

6 and international competitiveness of

7 United States goods and services.’’; and

8 (2) in section 301(d) by adding at the end

9 thereof the following new sentence: ‘‘Any Committee

10 of the House of Representatives or the Senate that

11 anticipates that the committee will consider any pro12 posed legislation establishing, amending, or reau13 thorizing any Federal program likely to have a sig14 nificant budgetary impact on any State, local, or

15 tribal government, or likely to have a significant fi16 nancial impact on the private sector, including any

17 legislative proposal submitted by the executive

18 branch likely to have such a budgetary or financial

19 impact, shall include its views and estimates on that

20 proposal to the Committee on the Budget of the ap21 plicable House.’’.

22 SEC. 104. AUTHORIZATION OF APPROPRIATIONS.

23 There are authorized to be appropriated to the Con24 gressional Budget Office $4,500,000 for each of the fiscal
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1 years 1996, 1997, 1998, 1999, 2000, 2001, and 2002 to

2 carry out the provisions of this Act.

3 SEC. 105. EXERCISE OF RULEMAKING POWERS.

4 The provisions of sections 101, 102, 103, 104, and

5 107 are enacted by Congress—

6 (1) as an exercise of the rulemaking power of

7 the Senate and the House of Representatives, re8 spectively, and as such they shall be considered as

9 part of the rules of such House, respectively, and

10 such rules shall supersede other rules only to the ex11 tent that they are inconsistent therewith; and

12 (2) with full recognition of the constitutional

13 right of either House to change such rules (so far

14 as relating to such House) at any time, in the same

15 manner, and to the same extent as in the case of

16 any other rule of each House.

17 SEC. 106. REPEAL OF CERTAIN ANALYSIS BY CONGRES18 SIONAL BUDGET OFFICE.

19 (a) IN GENERAL.—Section 403 of the Congressional

20 Budget Act of 1974 (2 U.S.C. 653) is repealed.

21 (b) TECHNICAL AND CONFORMING AMENDMENT.—

22 The table of contents in section 1(b) of the Congressional

23 Budget and Impoundment Control Act of 1974 is amend24 ed by striking out the item relating to section 403.
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1 SEC. 107. EFFECTIVE DATE.

2 This title shall take effect on January 1, 1996 and

3 shall apply only to legislation introduced on and after such

4 date.

5 TITLE II—REGULATORY

6 ACCOUNTABILITY AND REFORM

7 SEC. 201. REGULATORY PROCESS.

8 (a) IN GENERAL.—Each agency shall, to the extent

9 permitted in law—

10 (1) assess the effects of Federal regulations on

11 State, local, and tribal governments (other than to

12 the extent that such regulations incorporate require13 ments specifically set forth in legislation), and the

14 private sector including specifically the availability of

15 resources to carry out any Federal intergovern16 mental mandates in those regulations; and

17 (2) seek to minimize those burdens that unique18 ly or significantly affect such governmental entities,

19 consistent with achieving statutory and regulatory

20 objectives.

21 (b) STATE, LOCAL, AND TRIBAL GOVERNMENT

22 INPUT.—Each agency shall, to the extent permitted in

23 law, develop an effective process to permit elected officials

24 (or their designated representatives) of State, local, and

25 tribal governments to provide meaningful and timely input

26 in the development of regulatory proposals containing sig-
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1 nificant Federal intergovernmental mandates. Such a

2 process shall be consistent with all applicable laws.

3 (c) AGENCY PLAN.—

4 (1) EFFECTS ON STATE, LOCAL AND TRIBAL

5 GOVERNMENTS.—Before establishing any regulatory

6 requirements that might significantly or uniquely af7 fect small governments, agencies shall have devel8 oped a plan under which the agency shall—

9 (A) provide notice of the contemplated re10 quirements to potentially affected small govern11 ments, if any;

12 (B) enable officials of affected small gov13 ernments to provide input under subsection (b);

14 and

15 (C) inform, educate, and advise small gov16 ernments on compliance with the requirements.

17 (2) AUTHORIZATION OF APPROPRIATIONS.—

18 There are authorized to be appropriated to each

19 agency to carry out the provisions of this section,

20 and for no other purpose, such sums as are nec21 essary.

22 SEC. 202. STATEMENTS TO ACCOMPANY SIGNIFICANT REG23 ULATORY ACTIONS.

24 (a) IN GENERAL.—Before promulgating any final

25 rule that includes any Federal intergovernmental mandate
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1 that may result in the expenditure by State, local, or tribal

2 governments, and the private sector, in the aggregate, of

3 $100,000,000 or more (adjusted annually for inflation by

4 the Consumer Price Index) in any 1 year, and before pro5 mulgating any general notice of proposed rulemaking that

6 is likely to result in promulgation of any such rule, the

7 agency shall prepare a written statement containing—

8 (1) estimates by the agency, including the un9 derlying analysis, of the anticipated costs to State,

10 local, and tribal governments and the private sector

11 of complying with the Federal intergovernmental

12 mandate, and of the extent to which such costs may

13 be paid with funds provided by the Federal Govern14 ment or otherwise paid through Federal financial as15 sistance;

16 (2) estimates by the agency, if and to the ex17 tent that the agency determines that accurate esti18 mates are reasonably feasible, of—

19 (A) the future costs of the Federal inter20 governmental mandate; and

21 (B) any disproportionate budgetary effects

22 of the Federal intergovernmental mandate upon

23 any particular regions of the Nation or particu24 lar State, local, or tribal governments, urban or

25 rural or other types of communities;
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1 (3) a qualitative, and if possible, a quantitative

2 assessment of costs and benefits anticipated from

3 the Federal intergovernmental mandate (such as the

4 enhancement of health and safety and the protection

5 of the natural environment);

6 (4) the effect of the Federal private sector man7 date on the national economy, including the effect on

8 productivity, economic growth, full employment, cre9 ation of productive jobs, and international competi10 tiveness of United States goods and services; and

11 (5)(A) a description of the extent of the agen12 cy’s prior consultation with elected representatives

13 (or their designated representatives) of the affected

14 State, local, and tribal governments;

15 (B) a summary of the comments and concerns

16 that were presented by State, local, or tribal govern17 ments either orally or in writing to the agency;

18 (C) a summary of the agency’s evaluation of

19 those comments and concerns; and

20 (D) the agency’s position supporting the need

21 to issue the regulation containing the Federal inter22 governmental mandates (considering, among other

23 things, the extent to which costs may or may not be

24 paid with funds provided by the Federal Govern25 ment).
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1 (b) PROMULGATION.—In promulgating a general no2 tice of proposed rulemaking or a final rule for which a

3 statement under subsection (a) is required, the agency

4 shall include in the promulgation a summary of the infor5 mation contained in the statement.

6 (c) PREPARATION IN CONJUNCTION WITH OTHER

7 STATEMENT.—Any agency may prepare any statement re8 quired under subsection (a) in conjunction with or as a

9 part of any other statement or analysis, provided that the

10 statement or analysis satisfies the provisions of subsection

11 (a).

12 SEC. 203. ASSISTANCE TO THE CONGRESSIONAL BUDGET

13 OFFICE.

14 The Director of the Office of Management and Budg15 et shall—

16 (1) collect from agencies the statements pre17 pared under section 202; and

18 (2) periodically forward copies of such state19 ments to the Director of the Congressional Budget

20 Office on a reasonably timely basis after promulga21 tion of the general notice of proposed rulemaking or

22 of the final rule for which the statement was pre23 pared.
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1 SEC. 204. PILOT PROGRAM ON SMALL GOVERNMENT FLEXI2 BILITY.

3 (a) IN GENERAL.—The Director of the Office of

4 Management and Budget, in consultation with Federal

5 agencies, shall establish pilot programs in at least 2 agen6 cies to test innovative, and more flexible regulatory ap7 proaches that—

8 (1) reduce reporting and compliance burdens on

9 small governments; and

10 (2) meet overall statutory goals and objectives.

11 (b) PROGRAM FOCUS.—The pilot programs shall

12 focus on rules in effect or proposed rules, or a combination

13 thereof.

14 TITLE III—REVIEW OF UN15 FUNDED FEDERAL MAN16 DATES

17 SEC. 301. ESTABLISHMENT

18 There is established a commission which shall be

19 known as the ‘‘Commission on Unfunded Federal Man20 dates’’ (in this title referred to as the ‘‘Commission’’).

21 SEC. 302. REPORT ON UNFUNDED FEDERAL MANDATES BY

22 THE COMMISSION.

23 (a) IN GENERAL.—The Commission shall in accord24 ance with this section—

25 (1) investigate and review the role of unfunded

26 Federal mandates in intergovernmental relations and
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1 their impact on local, State, and Federal government

2 objectives and responsibilities; and

3 (2) make recommendations to the President

4 and the Congress regarding—

5 (A) allowing flexibility for States, local,

6 and tribal governments in complying with spe7 cific unfunded Federal mandates for which

8 terms of compliance are unnecessarily rigid or

9 complex;

10 (B) reconciling any 2 or more unfunded

11 Federal mandates which impose contradictory

12 or inconsistent requirements;

13 (C) terminating unfunded Federal man14 dates which are duplicative, obsolete, or lacking

15 in practical utility;

16 (D) suspending, on a temporary basis, un17 funded Federal mandates which are not vital to

18 public health and safety and which compound

19 the fiscal difficulties of States, local, and tribal

20 governments, including recommendations for

21 triggering such suspension;

22 (E) consolidating or simplifying unfunded

23 Federal mandates, or the planning or reporting

24 requirements of such mandates, in order to re25 duce duplication and facilitate compliance by
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1 States, local, and tribal governments with those

2 mandates; and

3 (F) establishing common Federal defini4 tions or standards to be used by States, local,

5 and tribal governments in complying with un6 funded Federal mandates that use different

7 definitions or standards for the same terms or

8 principles.

9 (3) IDENTIFICATION OF RELEVANT UNFUNDED

10 FEDERAL MANDATES.—Each recommendation under

11 paragraph (2) shall, to the extent practicable, iden12 tify the specific unfunded Federal mandates to

13 which the recommendation applies.

14 (b) CRITERIA.—

15 (1) IN GENERAL.—The Commission shall estab16 lish criteria for making recommendations under sub17 section (a).

18 (2) ISSUANCE OF PROPOSED CRITERIA.—The

19 Commission shall issue proposed criteria under this

20 subsection not later than 60 days after the date of

21 the enactment of this Act, and thereafter provide a

22 period of 30 days for submission by the public of

23 comments on the proposed criteria.
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1 (3) FINAL CRITERIA.—Not later than 45 days

2 after the date of issuance of proposed criteria, the

3 Commission shall—

4 (A) consider comments on the proposed

5 criteria received under paragraph (2);

6 (B) adopt and incorporate in final criteria

7 any recommendations submitted in those com8 ments that the Commission determines will aid

9 the Commission in carrying out its duties under

10 this section; and

11 (C) issue final criteria under this sub12 section.

13 (c) PRELIMINARY REPORT.—

14 (1) IN GENERAL.—Not later than 9 months

15 after the date of the enactment of this Act, the

16 Commission shall—

17 (A) prepare and publish a preliminary re18 port on its activities under this subtitle, includ19 ing preliminary recommendations pursuant to

20 subsection (a);

21 (B) publish in the Federal Register a no22 tice of availability of the preliminary report;

23 and

24 (C) provide copies of the preliminary re25 port to the public upon request.
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1 (2) PUBLIC HEARINGS.—The Commission shall

2 hold public hearings on the preliminary rec3 ommendations contained in the preliminary report of

4 the Commission under this subsection.

5 (d) FINAL REPORT.—Not later than 3 months after

6 the date of the publication of the preliminary report under

7 subsection (c), the Commission shall submit to the Con8 gress, including the Committee on Government Reform

9 and Oversight of the House of Representatives and the

10 Committee on Governmental Affairs of the Senate, and

11 to the President a final report on the findings, conclusions,

12 and recommendations of the Commission under this sec13 tion.

14 SEC. 303. MEMBERSHIP.

15 (a) NUMBER AND APPOINTMENT.—

16 (1) IN GENERAL.—The Commission shall be

17 composed of 9 members appointed from individuals

18 who possess extensive leadership experience in and

19 knowledge of States, local, and tribal governments

20 and intergovernmental relations, including State and

21 local elected officials, as follows:

22 (A) 3 members appointed by the Speaker

23 of the House of Representatives, in consultation

24 with the minority leader of the House of Rep25 resentatives.
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1 (B) 3 members appointed by the majority

2 leader of the Senate, in consultation with the

3 minority leader of the Senate.

4 (C) 3 members appointed by the President.

5 (2) LIMITATION.—An individual who is a Mem6 ber or employee of the Congress may not be ap7 pointed or serve as a member of the Commission.

8 (b) WAIVER OF LIMITATION ON EXECUTIVE SCHED9 ULE POSITIONS.—Appointments may be made under this

10 section without regard to section 5311(b) of title 5, United

11 States Code.

12 (c) TERMS.—

13 (1) IN GENERAL.—Each member of the Com14 mission shall be appointed for the life of the Com15 mission.

16 (2) VACANCIES.—A vacancy in the Commission

17 shall be filled in the manner in which the original

18 appointment was made.

19 (d) BASIC PAY.—

20 (1) RATES OF PAY.—Members of the Commis21 sion shall serve without pay.

22 (2) PROHIBITION OF COMPENSATION OF FED23 ERAL EMPLOYEES.—Members of the Commission

24 who are full-time officers or employees of the United

25 States may not receive additional pay, allowances, or
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1 benefits by reason of their service on the Commis2 sion.

3 (e) TRAVEL EXPENSES.—Each member of the Com4 mission shall receive travel expenses, including per diem

5 in lieu of subsistence, in accordance with sections 5702

6 and 5703 of title 5, United States Code.

7 (f) CHAIRPERSON.—The President shall designate a

8 member of the Commission as Chairperson at the time of

9 the appointment of that member.

10 (g) MEETINGS.—

11 (1) IN GENERAL.—Subject to paragraph (2),

12 the Commission shall meet at the call of the Chair13 person or a majority of its members.

14 (2) FIRST MEETING.—The Commission shall

15 convene its first meeting by not later than 45 days

16 after the date of the completion of appointment of

17 the members of the Commission.

18 (3) QUORUM.—A majority of members of the

19 Commission shall constitute a quorum but a lesser

20 number may hold hearings.

21 SEC. 304. DIRECTOR AND STAFF OF COMMISSION; EXPERTS

22 AND CONSULTANTS.

23 (a) DIRECTOR.—The Commission shall, without re24 gard to section 5311(b) of title 5, United States Code,

25 have a Director who shall be appointed by the Commis-
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1 sion. The Director shall be paid at the rate of basic pay

2 payable for level IV of the Executive Schedule.

3 (b) STAFF.—With the approval of the Commission,

4 and without regard to section 5311(b) of title 5, United

5 States Code, the Director may appoint and fix the pay

6 of such staff as is sufficient to enable the Commission to

7 carry out its duties.

8 (c) APPLICABILITY OF CERTAIN CIVIL SERVICE

9 LAWS.—The Director and staff of the Commission may

10 be appointed without regard to the provisions of title 5,

11 United States Code, governing appointments in the com12 petitive service, and may be paid without regard to the

13 provisions of chapter 51 and subchapter III of chapter 53

14 of that title relating to classification and General Schedule

15 pay rates, except that an individual so appointed may not

16 receive pay in excess of the annual rate payable under

17 section 5376 of title 5, United States Code.

18 (d) EXPERTS AND CONSULTANTS.—The Commission

19 may procure temporary and intermittent services of ex20 perts or consultants under section 3109(b) of title 5,

21 United States Code.

22 (e) STAFF OF FEDERAL AGENCIES.—Upon request

23 of the Director, the head of any Federal department or

24 agency may detail, on a reimbursable basis, any of the
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1 personnel of that department or agency to the Commission

2 to assist it in carrying out its duties under this title.

3 SEC. 305. POWERS OF COMMISSION.

4 (a) HEARINGS AND SESSIONS.—The Commission

5 may, for the purpose of carrying out this title, hold hear6 ings, sit and act at times and places, take testimony, and

7 receive evidence as the Commission considers appropriate.

8 (b) POWERS OF MEMBERS AND AGENTS.—Any mem9 ber or agent of the Commission may, if authorized by the

10 Commission, take any action which the Commission is

11 authorized to take by this section.

12 (c) OBTAINING OFFICIAL DATA.—The Commission

13 may secure directly from any department or agency of the

14 United States information necessary to enable it to carry

15 out this title, except information—

16 (1) which is specifically exempted from disclo17 sure by law; or

18 (2) which that department or agency deter19 mines will disclose—

20 (A) matters necessary to be kept secret in

21 the interests of national defense or the con22 fidential conduct of the foreign relations of the

23 United States;

24 (B) information relating to trade secrets or

25 financial or commercial information pertaining
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1 specifically to a given person if the information

2 has been obtained by the Government on a con3 fidential basis, other than through an applica4 tion by such person for a specific financial or

5 other benefit, and is required to be kept secret

6 in order to prevent undue injury to the competi7 tive position of such person; or

8 (C) personnel or medical data or similar

9 data the disclosure of which would constitute a

10 clearly unwarranted invasion of personal pri11 vacy;

12 unless the portions containing such matters, infor13 mation, or data have been excised.

14 Upon request of the Chairperson of the Commission, the

15 head of that department or agency shall furnish that infor16 mation to the Commission.

17 (d) MAILS.—The Commission may use the United

18 States mails in the same manner and under the same con19 ditions as other departments and agencies of the United

20 States.

21 (e) ADMINISTRATIVE SUPPORT SERVICES.—Upon

22 the request of the Commission, the Administrator of Gen23 eral Services shall provide to the Commission, on a reim24 bursable basis, the administrative support services nec-
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1 essary for the Commission to carry out its duties under

2 this title.

3 (f) CONTRACT AUTHORITY.—The Commission may,

4 subject to appropriations, contract with and compensate

5 government and private agencies or persons for property

6 and services used to carry out its duties under this title.

7 SEC. 306. TERMINATION.

8 The Commission shall terminate 90 days after sub9 mitting its final report pursuant to section 302(d).

10 SEC. 307. AUTHORIZATION OF APPROPRIATIONS.

11 There are authorized to be appropriated to the Com12 mission $1,000,000 to carry out this title.

13 SEC. 308. DEFINITION.

14 As used in this title, the term ‘‘unfunded Federal

15 mandate’’ means—

16 (1) any provision in statute or regulation that

17 imposes an enforceable duty upon States, local gov18 ernments, or tribal governments including a condi19 tion of Federal assistance or a duty arising from

20 participation in a voluntary Federal program;

21 (2) relates to a Federal program under which

22 Federal financial assistance is provided to States,

23 local governments, or tribal governments under enti24 tlement authority; or
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1 (3) that imposes any other unfunded obligation

2 on States, local governments, or tribal governments.

3 SEC. 309. EFFECTIVE DATE.

4 This title shall take effect 60 days after the date of

5 the enactment of this Act.

6 TITLE IV—JUDICIAL REVIEW

7 SEC. 401. JUDICIAL REVIEW.

8 (a) IN GENERAL.—Any statement or report prepared

9 under this Act, and any compliance or noncompliance with

10 the provisions of this Act, and any determination concern11 ing the applicability of the provisions of this Act shall not

12 be subject to judicial review.

13 (b) RULE OF CONSTRUCTION.—No provision of this

14 Act or amendment made by this Act shall be construed

15 to create any right or benefit, substantive or procedural,

16 enforceable by any person in any administrative or judicial

17 action. No ruling or determination made under the provi18 sions of this Act or amendments made by this Act shall

19 be considered by any court in determining the intent of

20 Congress or for any other purpose.

S 169 PCS——2

S 169 PCS——3

S 169 PCS——4

Calendar No. 13

104TH CONGRESS

1ST SESSION S. 169

A BILL

To curb the practice of imposing unfunded Federal

statutes and regulations; and for other purposes.plying with certain requirements under Federalthe costs incurred by those governments in comand to ensure that the Federal Government paysdisplace other essential governmental priorities;without adequate funding, in a manner that maydates on State, local, and tribal governmentsfull consideration by Congress, of Federal manments; to end the imposition, in the absence ofGovernment and State, local and tribal governstrengthen the partnership between the Federalmandates on States and local governments; to

JANUARY 9, 1995

Read the second time and placed on the calendar