I
104TH CONGRESS
1ST SESSION
H. R. 5
To curb the practice of imposing unfunded Federal mandates on States
and local governments, to ensure that the Federal Government pays
the costs incurred by those governments in complying with certain re-
quirements under Federal statutes and regulations, and to provide infor-
mation on the cost of Federal mandates on the private sector, and
for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 4, 1995
Mr. CLINGER, Mr. PORTMAN, Mr. CONDIT, and Mr. DAVIS (for themselves,
Mr. SHAYS, Mr. MCHUGH, Mr. MICA, Mr. HORN, Mr. ZELIFF, Mr. BUR-
TON of Indiana, Mr. SCHIFF, Mr. BLUTE, Mr. FOX, Mr. WALSH, and Mr.
CUNNINGHAM) introduced the following bill; which was referred to the
Committee on Government Reform and Oversight, and in addition to the
Committees on Rules, the Budget, and the Judiciary, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee con-
cerned
A BILL
To curb the practice of imposing unfunded Federal mandates
on States and local governments, to ensure that the
Federal Government pays the costs incurred by those
governments in complying with certain requirements
under Federal statutes and regulations, and to provide
information on the cost of Federal mandates on the
private sector, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Unfunded Mandate
Reform Act of 1995’’.
SEC. 2. PURPOSES.
The purposes of this Act are—
(1) to strengthen the partnership between the
Federal Government and States, local governments,
and tribal governments;
(2) to end the imposition, in the absence of full
consideration by Congress, of Federal mandates on
States, local governments, and tribal governments in
a manner that may displace other essential State,
local, and tribal governmental priorities;
(3) to assist Congress in its consideration of
proposed legislation establishing or revising Federal
programs containing Federal mandates affecting
States, local governments, tribal governments, and
the private sector by—
(A) providing for the development of infor-
mation about the nature and size of mandates
in proposed legislation; and
(B) establishing a mechanism to bring
such information to the attention of the Senate
and House of Representatives before the Senate
and House of Representatives votes on proposed
legislation;
(4) to promote informed and deliberate deci-
sions by Congress on the appropriateness of Federal
mandates in any particular instance;
(5) to establish a point-of-order vote on the con-
sideration in the Senate and House of Representa-
tives of legislation containing significant Federal
mandates;
(6) to assist Federal agencies in their consider-
ation of proposed regulations affecting States, local
governments, and tribal governments, by—
(A) requiring that Federal agencies de-
velop a process to enable the elected and other
officials of States, local governments, and tribal
governments to provide input when Federal
agencies are developing regulations; and
(B) requiring that Federal agencies pre-
pare and consider better estimates of the budg-
etary impact of regulations containing Federal
mandates upon States, local governments, and
tribal governments before adopting such regula-
tions, and ensuring that small governments are
given special consideration in that process; and
(7) to establish the general rule that Congress
shall not impose Federal mandates on States, local
governments, and tribal governments without provid-
ing adequate funding to comply with such mandates.
SEC. 3. DEFINITIONS.
For purposes of this Act—
(1) the terms ‘‘agency’’, ‘‘Federal financial as-
sistance’’, ‘‘Federal private sector mandate’’, ‘‘Fed-
eral mandate’’ (except as provided by section 108),
‘‘local government’’, ‘‘private sector’’, ‘‘regulation’’
or ‘‘rule’’, and ‘‘State’’ have the meaning given those
terms by section 421 of the Congressional Budget
Act of 1974; and
(2) the term ‘‘small government’’ means any
small governmental jurisdiction as defined in section
601(5) of title 5, United States Code, and any tribal
government.
SEC. 4. LIMITATION ON APPLICATION.
This Act shall not apply to any provision in a Federal
statute or a proposed or final Federal regulation, that—
(1) enforces constitutional rights of individuals;
(2) establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, re-
ligion, gender, national origin, or handicapped or
disability status;
(3) requires compliance with accounting and
auditing procedures with respect to grants or other
money or property provided by the Federal Govern-
ment;
(4) provides for emergency assistance or relief
at the request of any State, local government, or
tribal government or any official of such a govern-
ment;
(5) is necessary for the national security or the
ratification or implementation of international treaty
obligations; or
(6) the President designates as emergency legis-
lation and that the Congress so designates in stat-
ute.
TITLE I—REVIEW OF UNFUNDED
FEDERAL MANDATES
SEC. 101. ESTABLISHMENT.
There is established a commission which shall be
known as the ‘‘Commission on Unfunded Federal Man-
dates’’ (in this title referred to as the ‘‘Commission’’).
SEC. 102. REPORT ON UNFUNDED FEDERAL MANDATES BY
THE COMMISSION.
(a) IN GENERAL.—The Commission shall in accord-
ance with this section—
(1) investigate and review the role of unfunded
Federal mandates in intergovernmental relations and
their impact on State, local, tribal, and Federal gov-
ernment objectives and responsibilities; and
(2) make recommendations to the President
and the Congress regarding—
(A) allowing flexibility for State, local, and
tribal governments in complying with specific
unfunded Federal mandates for which terms of
compliance are unnecessarily rigid or complex;
(B) reconciling any 2 or more unfunded
Federal mandates which impose contradictory
or inconsistent requirements;
(C) terminating unfunded Federal man-
dates which are duplicative, obsolete, or lacking
in practical utility;
(D) suspending, on a temporary basis, un-
funded Federal mandates which are not vital to
public health and safety and which compound
the fiscal difficulties of State, local, and tribal
governments, including recommendations for
triggering such suspension;
(E) consolidating or simplifying unfunded
Federal mandates, or the planning or reporting
requirements of such mandates, in order to re-
duce duplication and facilitate compliance by
State, local, and tribal governments with those
mandates; and
(F) establishing common Federal defini-
tions or standards to be used by State, local,
and tribal governments in complying with un-
funded Federal mandates that use different
definitions or standards for the same terms or
principles.
(3) IDENTIFICATION OF RELEVANT UNFUNDED
FEDERAL MANDATES.—Each recommendation under
paragraph (2) shall, to the extent practicable, iden-
tify the specific unfunded Federal mandates to
which the recommendation applies.
(b) CRITERIA.—
(1) IN GENERAL.—The Commission shall estab-
lish criteria for making recommendations under sub-
section (a).
(2) ISSUANCE
OF
PROPOSED
CRITERIA.—The
Commission shall issue proposed criteria under this
subsection not later than 60 days after the date of
the enactment of this Act, and thereafter provide a
period of 30 days for submission by the public of
comments on the proposed criteria.
(3) FINAL CRITERIA.—Not later than 45 days
after the date of issuance of proposed criteria, the
Commission shall—
(A) consider comments on the proposed
criteria received under paragraph (2);
(B) adopt and incorporate in final criteria
any recommendations submitted in those com-
ments that the Commission determines will aid
the Commission in carrying out its duties under
this section; and
(C) issue final criteria under this sub-
section.
(c) PRELIMINARY REPORT.—
(1) IN
GENERAL.—Not later than 9 months
after the date of the enactment of this Act, the
Commission shall—
(A) prepare and publish a preliminary re-
port on its activities under this title, including
preliminary recommendations pursuant to sub-
section (a);
(B) publish in the Federal Register a no-
tice of availability of the preliminary report;
and
(C) provide copies of the preliminary re-
port to the public upon request.
(2) PUBLIC HEARINGS.—The Commission shall
hold public hearings on the preliminary rec-
ommendations contained in the preliminary report of
the Commission under this subsection.
(d) FINAL REPORT.—Not later than 3 months after
the date of the publication of the preliminary report under
subsection (c), the Commission shall submit to the Con-
gress, including the Committee on Government Reform
and Oversight of the House of Representatives and the
Committee on Governmental Affairs of the Senate, and
to the President a final report on the findings, conclusions,
and recommendations of the Commission under this sec-
tion.
SEC. 103. MEMBERSHIP.
(a) NUMBER AND APPOINTMENT.—The Commission
shall be composed of 9 members appointed from individ-
uals who possess extensive leadership experience in and
knowledge of State, local, and tribal governments and
intergovernmental relations, including State and local
elected officials, as follows:
(1) 3 members appointed by the Speaker of the
House of Representatives, in consultation with the
minority leader of the House of Representatives.
(2) 3 members appointed by the majority leader
of the Senate, in consultation with the minority lead-
er of the Senate.
(3) 3 members appointed by the President.
(b) WAIVER OF LIMITATION ON EXECUTIVE SCHED-
ULE POSITIONS.—Appointments may be made under this
section without regard to section 5311(b) of title 5, United
States Code.
(c) TERMS.—
(1) IN GENERAL.—Each member of the Com-
mission shall be appointed for the life of the Com-
mission.
(2) VACANCIES.—A vacancy in the Commission
shall be filled in the manner in which the original
appointment was made.
(d) BASIC PAY.—
(1) RATES OF PAY.—Members of the Commis-
sion shall serve without pay.
(2) PROHIBITION OF COMPENSATION OF FED-
ERAL
EMPLOYEES.—Members of the Commission
who are full-time officers or employees of the United
States may not receive additional pay, allowances, or
benefits by reason of their service on the Commis-
sion.
(e) TRAVEL EXPENSES.—Each member of the Com-
mission shall receive travel expenses, including per diem
in lieu of subsistence, in accordance with sections 5702
and 5703 of title 5, United States Code.
(f) CHAIRPERSON.—The President shall designate a
member of the Commission as Chairperson at the time of
the appointment of that member.
(g) MEETINGS.—
(1) IN GENERAL.—Subject to paragraph (2),
the Commission shall meet at the call of the Chair-
person or a majority of its members.
(2) FIRST
MEETING.—The Commission shall
convene its first meeting by not later than 45 days
after the date of the completion of appointment of
the members of the Commission.
(3) QUORUM.—A majority of members of the
Commission shall constitute a quorum but a lesser
number may hold hearings.
SEC. 104. DIRECTOR AND STAFF OF COMMISSION; EXPERTS
AND CONSULTANTS.
(a) DIRECTOR.—The Commission shall have a Direc-
tor who shall be appointed by the Commission. The Direc-
tor shall be paid at the rate of basic pay payable for level
IV of the Executive Schedule.
(b) STAFF.—With the approval of the Commission,
and without regard to section 5311(b) of title 5, United
States Code, the Director may appoint and fix the pay
of such staff as is sufficient to enable the Commission to
carry out its duties.
(c) APPLICABILITY
OF CERTAIN CIVIL SERVICE
LAWS.—The Director and staff of the Commission may
be appointed without regard to the provisions of title 5,
United States Code, governing appointments in the com-
petitive service, and may be paid without regard to the
provisions of chapter 51 and subchapter III of chapter 53
of that title relating to classification and General Schedule
pay rates, except that an individual so appointed may not
receive pay in excess of the annual rate payable under
section 5376 of title 5, United States Code.
(d) EXPERTS AND CONSULTANTS.—The Commission
may procure temporary and intermittent services of ex-
perts or consultants under section 3109(b) of title 5,
United States Code.
(e) STAFF OF FEDERAL AGENCIES.—Upon request
of the Director, the head of any Federal department or
agency may detail, on a reimbursable basis, any of the
personnel of that department or agency to the Commission
to assist it in carrying out its duties under this title.
SEC. 105. POWERS OF COMMISSION.
(a) HEARINGS
AND SESSIONS.—The Commission
may, for the purpose of carrying out this title, hold hear-
ings, sit and act at times and places, take testimony, and
receive evidence as the Commission considers appropriate.
(b) POWERS OF MEMBERS AND AGENTS.—Any mem-
ber or agent of the Commission may, if authorized by the
Commission, take any action which the Commission is
authorized to take by this section.
(c) OBTAINING OFFICIAL DATA.—The Commission
may secure directly from any department or agency of the
United States information necessary to enable it to carry
out this title, except information—
(1) which is specifically exempted from disclo-
sure by law; or
(2) which that department or agency deter-
mines will disclose—
(A) matters necessary to be kept secret in
the interests of national defense or the con-
fidential conduct of the foreign relations of the
United States;
(B) information relating to trade secrets or
financial or commercial information pertaining
specifically to a given person if the information
has been obtained by the Government on a con-
fidential basis, other than through an applica-
tion by such person for a specific financial or
other benefit, and is required to be kept secret
in order to prevent undue injury to the competi-
tive position of such person; or
(C) personnel or medical data or similar
data the disclosure of which would constitute a
clearly unwarranted invasion of personal pri-
vacy;
unless the portions containing such matters, infor-
mation, or data have been excised.
Upon request of the Chairperson of the Commission, the
head of that department or agency shall furnish that infor-
mation to the Commission.
(d) MAILS.—The Commission may use the United
States mails in the same manner and under the same con-
ditions as other departments and agencies of the United
States.
(e) ADMINISTRATIVE SUPPORT SERVICES.—Upon
the request of the Commission, the Administrator of Gen-
eral Services shall provide to the Commission, on a reim-
bursable basis, the administrative support services nec-
essary for the Commission to carry out its duties under
this title.
(f) CONTRACT AUTHORITY.—The Commission may,
subject to appropriations, contract with and compensate
government and private agencies or persons for property
and services used to carry out its duties under this title.
SEC. 106. TERMINATION.
The Commission shall terminate 90 days after sub-
mitting its final report pursuant to section 102(d).
SEC. 107. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Com-
mission $1,000,000 to carry out this title.
SEC. 108. DEFINITION.
As used in this title, the term ‘‘Federal mandate’’
means any provision in statute or regulation that imposes
an enforceable duty upon States, local governments, or
tribal governments including a condition of Federal assist-
ance or a duty arising from participation in a voluntary
Federal program.
SEC. 109. EFFECTIVE DATE.
This title shall take effect 60 days after the date of
the enactment of this Act.
TITLE II—REGULATORY
ACCOUNTABILITY AND REFORM
SEC. 201. REGULATORY PROCESS.
(a) IN GENERAL.—Each agency shall, to the extent
permitted by subchapter II of chapter 5 of title 5, United
States Code—
(1) assess the effects of Federal regulations on
States, local governments, tribal governments, and
the private sector (other than to the extent that such
regulations incorporate requirements specifically set
forth in legislation), including specifically the avail-
ability of resources to carry out any Federal man-
dates in those regulations; and
(2) seek to minimize those burdens that unique-
ly or significantly affect such governmental entities
or the private sector, consistent with achieving statu-
tory and regulatory objectives.
(b) STATE, LOCAL GOVERNMENT, AND TRIBAL GOV-
ERNMENT INPUT.—Each agency shall develop an effective
process to permit elected officials (or their designated rep-
resentatives) of States, local governments, and tribal gov-
ernments to provide meaningful and timely input in the
development of regulatory proposals containing significant
Federal intergovernmental mandates.
(c) AGENCY PLAN.—
(1) IN GENERAL.—Before establishing any reg-
ulatory requirements that might significantly or
uniquely affect small governments, an agency shall
have developed a plan under which the agency
shall—
(A) provide notice of the contemplated re-
quirements to potentially affected small govern-
ments, if any;
(B) enable officials of affected small gov-
ernments to provide input pursuant to sub-
section (b); and
(C) inform, educate, and advise small gov-
ernments on compliance with the requirements.
(2) EFFECTS ON PRIVATE SECTOR.—Before es-
tablishing any regulatory requirements, agencies
shall prepare estimates, based on available data, of
the effect of Federal private sector mandates on the
national economy, including the effect on productiv-
ity, economic growth, full employment, creation of
productive jobs, and international competitiveness of
United States goods and services.
SEC. 202. STATEMENTS TO ACCOMPANY SIGNIFICANT REG-
ULATORY ACTIONS.
(a) IN GENERAL.—Before promulgating any final
rule that includes any Federal mandate that may result
in the expenditure by States, local governments, or tribal
governments, in the aggregate, or the private sector of at
least $100,000,000 (adjusted annually for inflation) in
any 1 year, and before promulgating any general notice
of proposed rulemaking that is likely to result in promul-
(4) the effect of Federal private sector man-
dates on the national economy, including the effect
on productivity, economic growth, full employment,
creation of productive jobs, and international com-
petitiveness of United States goods and services;
(5) a description of the extent of the agency’s
prior consultation with elected representatives (or
their designated representatives) of the affected
States, local governments, and tribal governments,
and designated representatives of the private sector;
(6) a summary of the comments and concerns
that were presented by States, local governments, or
tribal governments and the private sector either oral-
ly or in writing to the agency;
(7) a summary of the agency’s evaluation of
those comments and concerns; and
(8) the agency’s position supporting the need to
issue the regulation containing the Federal man-
dates (considering, among other things, the extent to
which costs may or may not be paid with funds pro-
vided by the Federal Government).
(b) PROMULGATION.—In promulgating a general no-
tice of proposed rulemaking or a final rule for which a
statement under subsection (a) is required, the agency
shall include in the promulgation a summary of the infor-
mation contained in the statement.
(c) PREPARATION IN CONJUNCTION WITH OTHER
STATEMENT.—Any agency may prepare any statement re-
quired by subsection (a) in conjunction with or as part
of any other statement or analysis, if the statement or
analysis satisfies the provisions of subsection (a).
SEC. 203. ASSISTANCE TO THE CONGRESSIONAL BUDGET
OFFICE.
The Director of the Office of Management and Budg-
et shall—
(1) collect from agencies the statements pre-
pared under section 202; and
(2) periodically forward copies of them to the
Director of the Congressional Budget Office on a
reasonably timely basis after promulgation of the
general notice of proposed rulemaking or of the final
rule for which the statement was prepared.
SEC. 204. PILOT PROGRAM ON SMALL GOVERNMENT FLEXI-
BILITY.
(a) IN GENERAL.—The Director of the Office of
Management and Budget, in consultation with Federal
agencies, shall establish pilot programs in at least 2 agen-
cies to test innovative and more flexible regulatory ap-
proaches that—
(1) reduce reporting and compliance burdens on
small governments; and
(2) meet overall statutory goals and objectives.
(b) PROGRAM FOCUS.—The pilot programs shall
focus on rules in effect or proposed rules, or on a combina-
tion thereof.
TITLE III—LEGISLATIVE
ACCOUNTABILITY AND REFORM
SEC. 301. LEGISLATIVE MANDATE ACCOUNTABILITY AND
REFORM.
Title IV of the Congressional Budget Act of 1974 is
amended by—
(1) inserting before section 401 the following:
‘‘PART A—GENERAL PROVISIONS’’; and
(2) adding at the end the following new part:
‘‘PART B—FEDERAL MANDATES
‘‘SEC. 421. DEFINITIONS.
‘‘For purposes of this part:
‘‘(1) AGENCY.—The term ‘agency’ has the
meaning stated in section 551(1) of title 5, United
States Code, but does not include independent regu-
latory agencies, as defined by section 3502(10) of
title 44, United States Code.
‘‘(2) DIRECTOR.—The term ‘Director’ means
the Director of the Congressional Budget Office.
‘‘(3) FEDERAL
FINANCIAL
ASSISTANCE.—The
term ‘Federal financial assistance’ means the
amount of budget authority for any Federal grant
assistance or any Federal program providing loan
guarantees or direct loans.
‘‘(4) FEDERAL
INTERGOVERNMENTAL
MAN-
DATE.—The term ‘Federal intergovernmental man-
date’ means—
‘‘(A) any provision in legislation, statute,
or regulation that—
‘‘(i) would impose an enforceable duty
upon States, local governments, or tribal
governments, except—
‘‘(I) a condition of Federal as-
sistance; or
‘‘(II) a duty arising from partici-
pation in a voluntary Federal pro-
gram, except as provided in subpara-
graph (B); or
‘‘(ii) would reduce or eliminate the
amount of authorization of appropriations
for Federal financial assistance that would
be provided to States, local governments,
or tribal governments for the purpose of
complying with any such previously im-
posed duty unless such duty is reduced or
eliminated by a corresponding amount; or
‘‘(B) any provision in legislation, statute,
or regulation that relates to a then-existing
Federal program under which $500,000,000 or
more is provided annually to States, local gov-
ernments, and tribal governments under entitle-
ment authority, if—
‘‘(i)(I) the provision would increase
the stringency of conditions of assistance
to States, local governments, or tribal gov-
ernments under the program; or
‘‘(II) would place caps upon, or other-
wise decrease, the Federal Government’s
responsibility to provide funding to States,
local governments, or tribal governments
under the program; and
‘‘(ii) the States, local governments, or
tribal governments that participate in the
Federal program lack authority under that
program to amend their financial or pro-
grammatic responsibilities to continue pro-
viding required services that are affected
by the legislation, statute, or regulation.